Darlvis Investments Ltd & Anor. V. Hall Mark Bank Plc (2009)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

Before the Abia state High court [before I. Offonry, J] was this suit brought under the undefended list procedure. The Respondent, as the Plaintiff, claimed inter alia, the sum of Four million, three Hundred and sixty-nine thousand, twenty-six naira, twenty four kobo [N4,369,026.24] “being unsettled balance of overdraft facilities accorded to the Defendants’, now appellants, by the respondent at the former’s request. The respondent also claimed “interest at the agreed prevailing “rate of 28% per annum from January 1, 2002 or at such other rate prescribed by CBN guidelines until judgment is delivered”, and “interest at the rate of 10% per annum from the date of judgment until full liquidation.

The claim was supported by a verifying affidavit of 16 paragraphs deposed to by Amos Ellejuba, Advances officer of the respondent. The affidavit averred inter alia that, on 1st Appellant’s application for overdraft facility the respondent offered to the Appellant “an overdraft facility, which was accepted to enable the (1st Appellant) who ordinarily is an independent petroleum marketer to enhance its business” and that the respondent regularly sent to the appellants comprehensive statements of account that reflected their transactions with the respondent. The said affidavit further averred-

9. That the Defendant’s debit balance to the plaintiff which was as at 31.12.2001 stood (sic) N4, 369,026.24 (Four million, three Hundred and sixty nine thousand, twenty-six Naira, twenty-four kobo) as enclosed in the writ of summons inclusive of interest and other charges have since been recalled by repeated demands at the behest of the plaintiff, but the Defendant continue to unfairly withhold the funds of the plaintiff to the detriment of the latter.
10. That despite the demand notices, the defendants have refused to defray the said credit facilities accorded them by the plaintiff.
11. That by virtue of the Defendants letter of 30.8.2000 and their Solicitors, C.J. OKOLI AKIRIKA ESQ. letter of 16.1.2002, wherein they accepted liability but pleaded with the plaintiff for waiver of interest fee allegedly totaling N1.19 million, the defendants acknowledged their debit balance N2, 000,000.00 as at the year 2000 with proposal to settle the said balance by monthly installments. Copies of the said letters are herewith fired as Exhibits D and or respectively
12. That the plaintiff promptly replied the said request for a waiver vide the plaintiffs letter dated 9.10.2000 whereat the request for interest waiver was refused. A copy oh the said plaintiff’s letter is herewith filed as Exhibit E.

By the plaintiff’s Exhibit B, a letter of demand dated 23rd August, 2000, the appellants, as Defendants, were informed that as at 18th August, 2000 there was outstanding debit balance of N3,191, 121.11 against them and that the balance included the loan capital and the accrued interest. The respondent’s solicitor’s letter to the appellants is Exhibit c wherein the appellants were intimated that

As at 31.12.2001, your current account debit balance with our client despite repeated demands total N4, 369, 026.243 (four million, three hundred and six Naira twenty four kobo) inclusive of interest and other charges; vide requisite statements of accounts regularly sent to you.

Exhibit D, dated 30.8.2000, is the appellants’ letter, signed by the 2nd Appellant as Managing Director/chief Executive of the 1st Appellant. It was addressed to the respondent. The receipt endorsement shows that the respondent received the letter on 31.8.2000. It is appellant’s response to the respondent’s demand notice dated 23.8.2000 – Exhibit B. Exhibit D states inter alia –

We refer to your letter dated 23rd August, 2000 in respect of the above and wish to acknowledge receipt and state as follows:-

(1) A detailed analysis of the loan reveals that the principal amount as at 23rd August, 2000 is 2 Million Naira. The interest accrued is N1.19 million. We therefore implore you to please waive the interest and we shall pay the principal.

We will be paying N100, 000.00 monthly to liquidate the principal without fail. I attach herewith a copy of the deposit slip for N100, 000.00 being the first installment for the month of August, 2000.

Vide Exhibit 8.1 of September 14, 2000 the respondent replied the appellant’s letter, Exhibit D, stating that the appellants were advised “to make a bulk payment of the principal sum in order to get favourable consideration of your requests”.

The appellants were never in doubt that they owed the respondent a total of N2, 000.000.00, representing the principal sum of the loan facility. In Exhibit D1, appellants’ solicitor’s letter of 16.1.2002, it was stated therein –

Consequent upon DARLVIS LTD indebtedness to Hallmark Nig. PLC, an arrangement was entered into whereby DARLVIS LTD would be paying N100, 000.00 until the agreed debt of N2m is liquidated. –

As agreed with Recovery team, my client religiously performed and deposited a total sum of N600, 000.00 with Hallmark Bank Nig PLC. However, my client discovered, upon enquiries at the Factory Road Branch Abia that contrary to the arrangement entered into with your clients, the Bank continued to charge interest on the outstanding balance. Resultantly, my client stopped making further deposits and severally complained to the bank. As suggested in your letter for “an acceptable repayment proposal” I have been instructed to intimate as follows-

a. my client is ready and willing to liquidate the outstanding balance of N1.4m (having paid in N600,000.00) on the basis earlier agreed with the bank.