Equitorial Trust Bank Limited V. Thomas Agada (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court Yola Division in Suit No: FHC/YL/CS/2/2012: Thomas Agada V. Equitorial Trust Bank Limited delivered on 15/12/2014 by B. B. Aliyu J., in which the claims of the Respondent as Plaintiff were granted against the Appellant as Defendant.

The Appellant was thoroughly dissatisfied with the said judgment and had promptly appealed to this Court against the said judgment vide a Notice of Appeal filed on 11/2/2015 on two grounds of appeal. The Record of Appeal was transmitted to this Court on 8/5/2015 but deemed duly transmitted on 5/10/2015. The Appellant?s brief was duly filed on 27/11/2015 but deemed duly filed on 2/2/2016. The Respondent?s brief was filed on 18/3/2016 but deemed duly filed on 12/4/2016. The Appellant?s reply brief was duly filed on 12/4/2016.

At the hearing of this appeal on 17/5/2016, Rabiu Ayuba Esq., who held the brief of Ugo Udoji Esq., learned senior counsel for the Appellant, adopted the Appellant?s brief and Appellant?s reply brief as their

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argument in support of the appeal and urged the Court to allow the appeal, set aside the judgment of the Court below and dismiss the Respondent?s suit for lacking in merit. On his part, Etim O. Akpan Esq, who held the brief of Onyemaechi Ukaegbu learned senior counsel for the Respondent adopted the Respondent?s brief as their argument in opposition to the appeal and urged the Court to dismiss the appeal for lacking in merit and to affirm the judgment of the Court below.

The Respondent as Plaintiff before the Court below had instituted an action against the Appellant as Defendant on 9/2/2012 claiming several declaratory reliefs and an order of Court directing the Appellant to refund to the Respondent the sum of N177,050.00 if the transaction between the parties was perfected or the sum N151,425.00 if the transaction was not perfected by the Appellant. The parties filed and exchanged pleadings and the matter to trial before the Court below.

The gist of the case of the Respondent was that the Respondent was a customer of the Appellant and had applied for the granting of an overdraft facility of N3,000.000.00 to augment his business

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capital. However, the Appellant only approved the sum of N1, 500,000.00 for the Respondent and demanded the payment of the sum of N177, 050. 00 for the purposes of perfecting the Respondent?s security for the overdraft facility, which amount the Respondent paid promptly to the Appellant by bank drafts. As security for the loan facility the Respondent offered his landed property situate at 10 off Jamba Road, Damilu Layout, Yola/Numan Expressway, Yola North LGA, Adamawa State. Subsequently, the approved sum of N1, 500, 000. 00 was disbursed to the Respondent by the Appellant upon his acceptance of the terms and conditions of the offer of the said loan. At that stage it would appear all was well and good between the parties.

However, the Respondent commenced the due repayment of the loan sum together with the interest charged thereon and upon his completion of the payment of the loan sum plus the accrued interest as at 26/9/2011, the Appellant requested for the refund of the sum of N177,050. 00 he had earlier paid to the Appellant for the perfection of the Respondent?s security on the ground that it was never expended by the Appellant before

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the loan plus interested were fully repaid by the Respondent or the sum of N151,425. 00 being less the sum of N25, 625. 00 only that was supposed to have been expended by the Appellant for the perfection of the Respondent?s security. See paragraphs 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 17, 20 and 21 of the Respondent?s Statement of Claim and paragraphs i, iii, iv and v of the Respondent?s Reply to Statement of Defence at pages 8 ? 11 and 82 ? 90 of the record of appeal. The Respondent testified as PW1 and tendered several documents admitted in evidence as Exhibits: P1, P2, P3, P4, P5, P6 and P7 respectively. He was not cross examined and he closed his case on 14/2/2013. See pages 12- 44, 82 ? 90 and 145 ? 147 of the record.

On the other hand, the gist of the Appellant?s case was that the Respondent was granted an overdraft facility of N1,500, 000. 00 which he duly accepted on the terms and conditions, including the execution of a direct legal mortgage over the Respondent?s property used as security of the said loan. The Appellant engaged the services of a Solicitor at a fee of N80, 000. 00 to process