Guaranty Trust Bank Plc & Anor V. Mustaglass Nigeria Limited & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M.B. DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of Hon. Justice A. A. Aderemi of the High Court of Oyo State, delivered on the 31st March, 2006 in favour of the Respondents who were the plaintiffs at the trial.

The Appellants were the Defendants and the parties shall be referred to as Appellants and Respondents respectively in this judgment. The Respondents are customers of the Appellants and were granted banking facilities in the sum of N10, 000,000.00 by the 1st Appellant upon security of 2nd Respondent’s property at No.12, Vanity Villa, Oluyole Extension Ring Road, Ibadan. The Appellants sought to call in the collateral alleging a failure of the Respondents to fully liquidate the facility in record time. The Appellants contend that the Respondents defaulted in repayment of the banking facilities granted to them Exhibits ‘F’ & ‘G’ and the sum of N4, 371,396.88 with interest thereon were cited as outstanding. Also claimed is the agreed and/or ruling interest rate from March, 2004 until the final liquidation thereof is due and payable to the Appellant, by the Respondent.

The Respondents are alleged to have agreed to owing the Appellant the sum of N3, 000,000.00. That there was no money in the Respondent sub account when exhibits ‘I & J’ were presented for payment therefore the Appellant are entitled to sell the 2nd Respondent’s property used as security for the banking facilities in default of payment. The Respondents had paid about N7, 000,000.00 and contended that the statements of account given to them by the Appellant, does not reflect the true banking transactions of the Respondents and that their accounts were not properly maintained in line with the Central Bank of Nigeria Monetary Policy Guideline.

That the banking facility has since been liquidated in consequence of which the Appellants are not entitled to sell the 2nd Respondent’s said property.

The Appellants and the Respondents formulated three issues for the determination by this Court although the Respondents did a slight modification to issue 1 as couched by the Appellant they adopted the remaining 2 issues as raised by the Appellant.

For the purpose of this appeal, we will adopt the first issue as formulated by the Respondents and the 2nd and 3rd issues of the Appellant as follows:-

The 3 issues as formulated

1. Whether on the available materials, the evidence before the court and the state of the law, the trial court was right to rely on all the evidence including exhibit ‘V’ in making a declaration that exhibits ‘L’ and ‘T’ are not a true and accurate reflection of the plaintiffs’ banking transaction with the 1st defendant?
2. Whether the trial court was right in making an order for the cumulative sum of N56, 769. 22 in respect of exhibits ‘I’ and ‘J’ with interest payable to be worked out and added thereon?
3. Whether in view of exhibit ‘U’ and the state of the law, the trial court was right in dismissing the 1st defendant’s counterclaim?

On issue one

In challenging the validity of Exhibit ‘V’ said to have been solely relied upon by the trial Court in entering judgment against the Appellant, Counsel on behalf of the Appellant contends that the trial judge agreed that from the statement of claim and statement of defence the court will require an expert opinion to resolve the issues before the court but that the court was in error to hold that the author of Exhibit ‘V’ is an expert to have held at page 214, lines 16-20 of the records of proceeding.

On the definition of the word Bank, he cited the case of FMBN v. NDIC (1999) 2 NWLR (Pt.591) 333 @ 361, C. Ogundare (of blessed memory) held as follows:

“The word “bank” is not defined in the Constitution nor in the interpretation Act. In its ordinary grammatical meaning, the word “bank” means an organization or place that provides financial service”.

See also A. D. H. Limited v. A. T. Limited (2006) 10 NWLR (Pt.989) @ 651 H. Definition of Bank in Words and Phrase Legally Defined Volume 1, p 151.

On the word “Art” or “Fine Art”, counsel defined it as follows:-