Edilco Nig. Ltd. V. United Bank for Africa Plc (2000)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A. 

This is an appeal against the judgment of Ahinche J. (of blessed memory) sitting in the High Court of Plateau State, Jos Judicial Division wherein the claims of the appellant as plaintiff in suit No. PLD/317/91 were dismissed in their entirety and judgment entered for the defendant on his counter-claim but reducing the claim of 34% interest on the judgment debt to 21%, until the whole debt is liquidated. Dissatisfied with the decision, the plaintiff filed this appeal as can be seen from page 92 of the record of appeal in which the date of filing the notice and grounds of appeal are conspicuously not stated. On 6/11/97 however, the appellant moved a motion on notice seeking for the leave of this Court to amend and file an amended notice of appeal incorporating the proposed additional grounds of appeal, which was accordingly granted. In compliance with the leave granted therefore, the appellant on 10/11/97 filed seven grounds of appeal. Thus in all, the appellant had seven grounds of appeal as the only ground of appeal contained in the original notice and grounds of appeal was the omnibus ground which was made the first ground in the amended notice and grounds of appeal.

Let me give a resume of the facts giving rise to the case before the Court below. Sometime in the year 1985, the plaintiff applied to the defendant bank for an overdraft facility in the sum of N400,000.00 to enable it execute a contract it had with the University of Jos. The defendant approved the application and forwarded to the plaintiff a letter of offer containing the conditions to be fulfilled before the facility could be released and the terms upon which it was granted. The plaintiff accepted all the conditions including a chargeable interest of 13% on the overdraft, the up stamping of two deeds of legal mortgage as well as executing another deed of legal mortgage over a landed property situate at Bisichi Jantar in Barkin Ladi Local Government of Plateau State.

After the plaintiff perfected the conditions required of it, it applied for and was granted some amount out of the overdraft in order to purchase materials needed for the due execution of its contract including some iron pipes. The University of Jos also paid mobilization fee to the plaintiff who utilized part of it together with the money it withdrew from the overdraft facility, in purchasing the materials. The plaintiff’s contract with the University of Jos related to the infrastructural facilities on the university campus. The iron pipes purchased by the plaintiff were to be utilized in the construction of the sewage main line on the university campus. But as economic circumstances would have it, things became so difficult that the university decided to suspend the contract on the sewage main line for which purpose, the iron pipes were earlier on purchased. This was one of the austerity measures employed by the University. In the meantime, the plaintiff’s overdraft facility became due for repayment and the plaintiff could not offset it. The plaintiff and the university along with the defendant therefore agreed after some meetings to sell the iron pipes which were no longer required for the contract and whose value had by then risen tremendously. The iron pipes were accordingly sold off in four deals and the money forwarded to the defendant bank.

Disagreement visibly set in on the mode of sharing the money – the proceeds of the sale of the pipes. The defendant wanted the share of the plaintiff paid into its account from which it could off-set the overdraft it granted. The defendant said as a result of series of meetings, it was agreed between it, the plaintiff and the university that the latter and the plaintiff would share the proceeds of the sale of the pipes in the ratio of 55% and 45% respectively. (This, the Court below found as a fact). As a result, the defendant, after the receipt of the proceeds of the sale of the pipes forwarded to the University its 55% and credited the balance into the plaintiff’s account from which it applied in recovering, its overdraft and the interest that accrued thereto. The stand of the plaintiff on the other hand is that, it never agreed on any sharing formula and that the whole proceeds was to be paid into its account.

At the end of it all, the plaintiff claimed that the proceeds of the sale of the iron pipes which amounted to N780,813.57 which it presumed had been credited to its own account had effectively settled the defendant’s indebtedness to it leaving a credit balance of N240,611.74 in its favour after the deduction of the money it owed the defendant on the overdraft. The defendant on its part contended that, the plaintiff’s share being 45% of the proceeds of the sale of the pipes had been credited to its account and used in reducing the overdraft loan the plaintiff had such that, the balance of the overdraft due and unpaid continued to attract interest, which as at the date the statement of defence incorporating a counter claim was filed the plaintiff’s indebtedness to the defendant stood at N1,418,076.10. Because of the sharp differences parties have, the plaintiff on 12/7/91 took out a writ of summons against the defendant claiming the following reliefs as can be found in the concluding paragraph of its statement of claim thus:-

(a) The entire sum of N240,641.74 due to the plaintiff being balance credit in favour of the plaintiff after the overdraft is deducted from the amount credited and 21% compound interest.

(b) The plaintiff also claims the sum of N150,000.00 being damages for conversion of the plaintiff’s aforesaid amount being money had and received but the defendant converted same to its personal use.

(c) That the plaintiff also claims the sum of N455,000.00 being damages for defamation as the defendant has instructed the sale of the entire properties mortgaged by the plaintiff.

(d) Perpetual injunction restraining the defendant, his servants, agents or privies from selling the following properties.

1. Yakubu Gowon Way Anglo Jos Plateau State.
2. No. 1 Madaki Street Bukuru, Plateau State
3. No. B1.569 Bisichi Jantar Sabon Gidan Danyaya Barkin Ladi Local Government Area.

The defendant on its part counter-claimed. The concluding paragraph of the counter-claim reads as follows:-

Whereupon the defendant claims against the plaintiff as follows:-

(a) N1,418,076.10dr being loan and interest

(b) Interest at bank rate of 34% from 1/10/93 until judgment and thereafter at 34% until full payment.