F.G. Onyenwe Motors Ltd V. Fbn (Merchant Bankers) Ltd (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On the 23rd December, 2005, the appellant herein, as plaintiff by a writ of summons commenced suit 0/670/05 in the High Court of Anambra State, in the Onitsha Judicial Division claiming for:-

1. The declaration that the Defendant as Bankers to the plaintiff, can only charge interest, and/or other Bank charges as agreed by the parties and/or as regulated and approved by the Central Bank of Nigeria.
2. A declaration that all interest and other Bank charges not earlier agreed to by the parties and/or not approved or contrary to the guide line of the Central Bank of Nigeria is wrongful, illegal and of no effect whatsoever.
3. An order of court directing the Defendant to reconcile the plaintiffs account, and reverse all debit entries which are unauthorized, and/or contrary to the guideline and/or directives of the Central Bank of Nigeria.
4. An order of interlocutory injunction restraining the Defendant, by itself or through its Staff, Agents and Privies from taking any step towards, foreclosure in respect of any legal mortgage and/or security that was provided by the Plaintiff in respect of this facility and/or doing any other thing or taking any other step that will disturb or hinder the business of the Plaintiff, pending the reversal of all unauthorized charges and/or interests in the Plaintiff’s account with the Defendant.
5. The sum of N20,000.000.00 (Twenty million Naira) for breach of contract.

The respondent herein, as defendant in that Suit, in response to the statement of claim of the plaintiff, filed a statement of defence and counter-claim for:-

(a) The sum of N39,417,132.18k (Thirty-nine Million, Four Hundred and Seventeen Thousand, One Hundred and Thirty-two Naira, Eighteen kobo) being the debt owing to the Defendant by the Plaintiff.

(b) 17% interest per annum on the said money from 30/12/2005 until judgment delivered.

(c) 5% interest on the judgment debt until the whole debt is fully liquidated.

The plaintiff filed a defence to the said counter-claim. The plaintiff led evidence in support of his case through PW1 and PW2 and documentary exhibits P1 to P9. The defendant led evidence in defence and in support of its counter-claim through DW1 and documentary exhibits D1 to D10.

Following the addresses of counsel to both sides, the trial court on the 24th September, 2008 rendered judgment dismissing the plaintiff’s claim and granting the defendants counter-claim.

Dissatisfied with this judgment, the plaintiff, on the 17th of October 2008, commenced this appeal No. CA/E/458/2008 by filing a notice of appeal containing 8 grounds. Both parties to this appeal have filed, exchanged and adopted their respective briefs of argument. The appellant in its brief raised the following issues for determination –

1. Whether the Trial court acted in line with fair hearing when the court failed to consider or construe the contents of Sky Inspection Nigeria Limited Report which was the Review and Reconciliation of F.G. Onyenwe Motors Nigeria Limited Account dated 15/8/2005 (Exhibit P3) before the court held that the contents of the said document could not be relied upon to prove that interest was charged by the Respondent against the Appellant contrary to the Central Bank approved prevailing rates of interest during the period under review. (See grounds 34, 38, 3C, 3D and 3(G) of the Notice and Grounds of appeal).
2. Whether the Trial court acted in line with fair hearing when the court entered judgment for the Respondent against the Appellant in the counter-claim without evaluating the pleadings and evidence led in support of the counter-claim. (Grounds 3E, 3F and 3H).

The respondent in its brief raised the following issues for determination:-

1. “Whether the Court below was right when it dismissed the claim of the Plaintiff/Appellant.
2. Whether the Court below was right when it granted the counter-claim of the Respondent.”

I prefer to determine this appeal on the basis of the issues raised by the appellant.

Let me start with issue No. 1. The appellant indicated under its issue No. 1 thus – “(See grounds 3A, 38, 3C, 3D and 3G of the Notice and grounds of appeal)” I understand this to mean that the said issue is derived from grounds 3A, 38, 3C, 3D and 3G of the notice of appeal. I have carefully read those grounds and issue No 1, I cannot see any relationship between grounds 3B, 3C, 3D and 3G and the appellants issue No. 1. The matters raised by issue No. 1 of the appellant’s brief are clearly different from the matters raised by each of the said ground of appeal.

The matters arising from issue No. 1 of the appellant’s brief are:

(i) the trial court failed to consider or construe the contents of exhibit P3.