First Bank Of Nigeria Plc & Anor V. Archibong Udo Okon (2009)
LawGlobal-Hub Lead Judgment Report
MOJEED ADEKUNLE OWOADE, J.C.A.
This is an appeal against the Judgment of Hon. Justice F. U. Ilok of Calabar Judicial Division of the Cross River State High Court delivered on 3rd March, 2009.
The Respondent was the Plaintiff/Defendant to counter-claim while the 1st Appellant was the Defendant/Counter claimant at the trial High Court. The 2nd Appellant was the Auctioneer engaged by the 1st Appellant to sell the mortgaged property.
It would appear from the incomplete records collated for this appeal that the suit was commenced by the Respondent as Plaintiff on 20/10/1991 while the Defendants filed a Statement of Defence and Counter claim on 22-2-1992. The visible processes contained in the record of proceedings and on which the trial was based are Amended Writ of Summons and Amended Statement of Claim filed on 8/12/2005.
Amended Statement of Defence and Counter claim consequent on the order of Court of 25/2/2005 and filed on 4/3/2005 and Amended Reply to Statement of Defence and Defence to Counter claim dated 2/3/2005 and filed on 3/3/2005.
By his Amended Statement of claim, the Plaintiff (now Respondent) claimed jointly and severally against the Defendants as follows:-
1. A declaration that the Plaintiff is not indebted to the 1st defendant to the tune of N275, 101.11 claimed by the defendants to be Plaintiff’s indebtedness to 1st defendant as at October, 1991 as per 1st defendant’s auctioneer’s letter issued by Edem E. Ironvar, Esq. (the 2nd defendant in this suit of Menkes Bright International, 95 Ndidem Iso Road, Calabar, dated on 28th October, 1991.
2. An order for account for defendants to show how they have arrived at such sum of money as N275, 101.11.
3. An injunction restraining the defendants, their servants, workmen or privies threatening to sell or sell or advertise to sell, auction, alienate, interfere or deal in any other way inconsistent with Plaintiff’s right of ownership of the property situate at No. 34 Yellow Duke Street, Calabar, Cross River State Nigeria.
The 1st Defendant in turn in paragraph 21 of their Amended Statement of Defence and Counter-claim claimed as follows:
(i) 1st Defendant claims the sum of N348, 024.65 as at 4/11/92 with 42% per annum calculated at monthly rests until the entire debt and interests are liquidated, which debt stood at N3, 929,577.07 as at 26/9/2004.
At the trial, the Plaintiff (now Respondent) testified for himself and called no other witness while two witnesses testified for the Defendants (Appellants). The learned trial Judge in a considered judgment delivered on 3/3/2006 dismissed the claims of the Plaintiff as well as the Counter-claims of the 1st Defendant.
In particular at pages 117-118 of the record, the learned trial Judge observed in respect of the Defendant counter-claims as follows:
” …. The only evidence from the 1st defendant showing Plaintiff’s indebtedness is Exhibit ‘M’ to ‘M7’ and none of this clearly show calculation of interest or the sum owed by the Plaintiff from the date the additional facility was granted, nor does Exhibit ‘M – M7′ show the amount owed up to 26-9-2004 as claimed by 1st defendant. Since Exhibit M to M7 never reflected the sum of N348, 024.65 claimed as at 4/11/92, nor did it reflect account of the Plaintiff from 1993 to 1998, a period of six years, this Court cannot grant the first relief of the 1st Defendant.
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