Al-braiyah Alhaji Jibrin Bala V. Intercity Bank Plc (2009)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

The Respondent as Plaintiff in the Court below presided over by the Hon. Justice Maria Zanda Zukogi of the Niger State High Court sitting in Minna claimed as follows at page 81 of the Record:-

The sum of N9,362,425.04k (Nine million, three hundred and sixty two thousand, four hundred and twenty-five naira, four kobo) being the balance of loan (unpaid) granted by the plaintiff to the Defendants/now Appellants. With interest at 21%per annum from the date this suit was filed and thereafter 10% interest till the entire sum is fully and wholly liquidated.

ALTERNATIVELY

An order of the court allowing the plaintiff to exercise its power of sale (as contained in the Deed of Legal Mortgage executed by the Defendants in favour of the plaintiff) to sell and dispose off the mortgaged property located at Suleja covered with Certificate of Occupancy NGS 19389 and use proceeds in satisfaction of the debts of the defendants

FACTS:-

The Appellants as customers of the Respondent Bank had a Banker/Customer relationship dating as far back as around October 1997 to April 1999 when the relationship between the parties was healthy. About May 1999 the Appellants applied for and were granted a loan of N2.8m and another of H5m. This loan facility was not in dispute. The area of dispute was that while the Appellant claimed to have made several lodgments that were to keep the loan and keep their account in credit the Respondents had a different view as they contended that it was the default or neglect by the Appellants to repay the said loans as and when due that brought about the initiation of this suit by the Respondents as Plaintiffs. They claimed the sum of N9,362,425.04k (Nine million, three hundred and sixty-two thousand, four hundred and twenty-five naira, four kobo) being the balance of loan unpaid granted by the Respondents to the Appellants with interest at 21% per annum from the date of the suit filed and thereafter 10% interest till the entire sum is fully and wholly liquidated.

The Respondent as Plaintiff on 28th February, 2002 commenced the action under the Under-defended List against the Appellants. At the Appellant’s instance the suit was transferred to the general cause list by the trial court on 24/5/2002. Thereafter, both parties filed and exchanged pleadings and in the course of the proceedings Appellants instructed their counsel to apply for more time to settle the Respondent’s claim and Appellants commenced installmental payment of N200,000.00 to the Respondent in July 2002 and N50,000.00 was paid in November 2002 and a further sum of N50,000.00 was paid by the Appellants to the Respondent in January 2003. At that point, the Appellants through their counsel offered to settle the balance vide N50,000.00 monthly installmental payment. This latter offer was however rejected by the Respondent as rather paltry and ridiculous vide Respondents letter dated 1/4/2003 at page 101 of the Record.

Subsequently, trial commenced with Respondent calling one witness and closed its case on 28/1/2004. After the closure of Plaintiff/Respondent’s case the Defendants/Appellants amended their Statement of Defence and prepared Exhibit 10 during the pendency of the suit. Altogether, the Respondent called 1 witness and tendered 12 exhibits whilst the Appellants called 2 witnesses and tendered 4 exhibits. The Appellants closed their defence and thereafter the parties filed their addresses which they later adopted. In the verdict of the court below the learned trial Judge entered judgment for the plaintiff/Respondent granting the reliefs sought hence this appeal by the Defendants/Appellants.

At the hearing of this appeal on 12/1/09, learned counsel for the Appellant, Mr. Okolo adopted Appellants brief filed on 15/9/06 and urged the court to allow the appeal. In that Brief learned counsel on behalf of the Appellants formulated two issues for determination which are:-

1. Can the Defendants/Appellants be said to be indebted to the Plaintiff/Respondent in view of the entire evidence presented by the Defendants/Appellants.
2. Is the learned trial Judge right in law to have held that Exhibit 10 tendered through DW1 is inadmissible in law by virtue of Section 91(3) of the Evidence Act.

Mr. Adedipe, learned counsel for the Respondent adopted the Brief of the Respondent filed on 6/10/06 praying that the appeal be dismissed. The Respondent had in their Brief framed three issues for determination which are:-

1. Whether or not the lower court’s verdict is supported by the evidence adduced before it.
2. Whether or not there was admission of the plaintiff/Respondent’s claim by the Defendant/Appellants at the trial and the propriety of the trial court acting on such admission.
3. Whether or not EXHIBIT 10 was wrongly admitted in the course of hearing evidence and if so whether it was rightly expunged by the trial court in the course of delivering its verdict.

The issues as distilled by the Appellants being more concise and simplified, I am going to use them to wade through to see where the justice of the appeal lies.

ISSUE NO ONE

Can the Defendants/Appellants be said to be indebted to the Plaintiff/Respondent in view of the evidence presented by the Defendants/Appellants.