Alhaji Aminu Ishola V. Union Bank Of Nigeria Limited (2005)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C. 

The action giving rise to this appeal arose as a result of a banker-customer relationship between the parties. The appellant, who was the managing director of a business in the name of Salawal Motor House, maintained a business account with the respondent at its branch in Ilorin, Kwara State. For the purpose of the smooth running of his business, the appellant secured an overdraft facility of N250, 000.00 (Two hundred and fifty thousand naira) from the respondent in 1982.

Subsequent to the grant of the said facility, the appellant provided by way of security for the loan a legal mortgage on his landed property, a 5-storey building, in Ilorin. The facility was fully utilized by the appellant but was unable to repay the amount as agreed by the parties. The respondent thereafter resorted to realising the amount of the facility plus the accrued interest on the mortgaged property and the appellant contested the move and instituted this action in the trial court in 1988.

In the trial court, the parties filed and exchanged their respective pleadings. By paragraph 29 of the appellant’s amended statement of claim, his claim against the respondent was for:

“(i) Declaration that the mortgage between the plaintiff and the defendant covering the plaintiff’s property situate, lying and being at Taiwo Road, Ilorin are illegal, unlawful, unenforceable and irregular.

(ii) An order setting aside the mortgages.

(iii) Alternatively, declaration that the defendant is not entitled to sell any property of the plaintiff without complying with the Land Use Act and the Auctioneers Law applicable to Kwara State.

(iv) Declaration that the defendant is only entitled to charge on the account of Salawal Motor House interest at the rate prevailing when facility was granted to the said Salawal Motor House.

(v) Declaration that in the absence of a legal mortgage over the business premises of Salawal Motor House at Okeala Iludun-Oro Road, Oro, the defendant is not entitled to sell the said business premises without a court order.

(vi) Declaration that the debit balance in the account of Salawal Motor House is not a true and accurate reflection of the indebtedness of Salawal Motor House, if any to the defendant.

(vii) Declaration that the guarantee dated 19th November, 1984 executed by the plaintiff in respect of the indebtedness of Salawal Motor House is invalid, unenforceable, irregular, illegal and null and void.

(viii) Injunction restraining the defendant by themselves, their agents, servants and or privies or otherwise howsoever from selling the plaintiff’s property pursuant to the said mortgages.

An order directing the defendant to pay to the plaintiff the sum of N700, 000.00 or any amount the court may find the plaintiff entitled to recover from the defendant”.

At the trial, the appellant testified on his own behalf and called one witness in support of his case. The respondent called two witnesses who are officials of the respondent’s bank in Ilorin in its defence. At the end of the trial, learned counsel for the parties filed their respective written addresses and thereafter the case was adjourned for judgment. On the 14th of April, 1994, the learned trial Judge, Gbadeyan J, delivered a considered judgment in which he granted all the alternative prayers of the appellant and found the respondent liable to pay to the appellant the sum of N594, 517.78 with costs of N3, 500.00.