Intercontinental Bank PLC V. Dayekh Brothers Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

A credit facility was initially granted to the Respondent by the Appellant. Then, on 31/1/05 it was renewed vide a letter dated the same day. However, the Respondent averred it later discovered that as at 31/5/06, it was overcharged and wrongly debited by the Appellant to the tune of N1,665,105.3. As a result, it instituted an action against the Appellant seeking the following:

“1. A Declaration that the Plaintiff’s account with the Murtala Mohammed Way, Kano Branch of the Defendant has been illegally overcharged and wrongfully debited.

2. A Declaration that the Plaintiff is no longer indebted to the Defendant having regards to the total amount of the illegal overcharges which are wrongfully debited into the Plaintiffs account by the Defendant.
3. A Mandatory order directing the Defendant to refund the total sum of N1,665,105.31 being the total sum wrongly debited into the Plaintiffs account by way of illegal overcharges committed by the Defendant.
4. An Order of injunction restraining the Defendant either by itself or through any of its servants, employees, agents or privies or any person howsoever described from demanding from the Plaintiff any sum of money on the basics of the illegally overcharged account.
5. An Order of injunction restraining the Defendant or its servants, employees, agents, privies or any person howsoever described from taking any steps in any manner whatsoever towards the exercise of any of the powers conferred on the Defendant in the deed of floating debenture, Equipment Lease Agreement, and Personal Guarantee of the Plaintiff s Directors or any other documents securing the facilities granted the Plaintiff and or in any way enforce any of the provisions therein or enforce any other agreements/instruments executed in connection with the transaction subject matter of this suit.
6. The cost of this suit. ”

At the conclusion of the hearing, the learned trial judge entered judgment in favour of the Respondent against the Defendant in the following terms:

“1. I declare that the Plaintiffs account with Murtala Mohammed Way Kano Branch of the Defendant to have been illegally overcharged and debited with wrongful management fee, overcharges COT and VAT overcharges.

2. I declare that the Plaintiff is no longer indebted to the Defendant having regards to the total amount of the illegal overcharges which are wrongfully debited into the Plaintiff account by the Defendant.
3. I hereby issue out a mandatory order directing the Defendant to refund the total sum of N1,329,546.97k being the total sum wrongfully debited into the Plaintiff account by way of illegal overcharges committed by the Defendant.
4. An order of injunction is hereby granted restraining the Defendant either by itself or through any of its servants, employees, agents or privies or any person howsoever described from demanding from the Plaintiff any sum of money on the basis of illegally overcharged account of the Plaintiff.
5. An order of injunction is granted to the Plaintiff restraining the Defendant or its servants, employees, agents, privies or any person howsoever described from taking any steps in any manner whatsoever towards the exercise of any powers conferred on the Defendant in the deed of floating debenture, Equipment leasing agreement and personal guarantee of the Plaintiffs directors or any other documents securing the facilities granted the Plaintiff and or in any way enforce any of the provisions therein or enforce any other agreement/instruments executed in connection with the transactions, the subject matter of this action.
6. Parties/counsels are hereby ordered to settle their own cost of this case. That is no cost is granted.

The Appellant was perplexed by the pronouncement that it filed an appeal on 3/7/12 by the Notice of Appeal dated the same day, which it based on two grounds of appeal. Consequent thereto, the parties filed their respective Briefs of Argument.

The Appellant via his Counsel, Sir Steve Adehi, presented two issues for determination thus:

“1. Whether the Respondent proved its entitlement to its claim.

2. Whether the Appellant proved its Counter Claim.”

The Respondent for its part submitted two issues for determination of this Court, they are:

“1. Whether the trial Court was not justified in Law to have given judgment in favour of the Respondent having regards to the evidence adduced on record.

2. Whether the trial Court was not justified when it dismissed the Appellant’s Counter Claim based on the documentary evidence produced at the trial.”

It was submitted by learned Counsel for the Appellant, Sir Steve Adehi, that the pivot of the Respondent’s case at the Lower Court was Exhibit 1, the Financial Report produced by P.W.1 to show that the Respondent’s account with the Appellant was overcharged. It was the Respondent’s case that he invited PW1 to analyse its transaction with the Respondent at the end of which the report produced showed that the Appellant had overcharged the Respondent’s account to the tune of N1.6m.

He referred to the Cross Examination of PW1 where he admitted he prepared the report based on documents given to him by the Respondent. He also stated that the report was prepared on the basis of the three facilities the Respondent was enjoying from the Appellant “Exhibits 2, 2A and 2B.” He accepted under cross examination that if however, the facilities obtained by the Respondent were more than three, then the conclusion reached in Exhibit 1 would definitely be different.

He further referred to the evidence of DW1 and “Exhibits 2, 2A, 2B, 4 and 5” and contended that the Appellant was able to show through the said “Exhibits that it advanced five facilities to the Respondent. He alleged that the Respondent concealed the existence of the two other facilities from the PW1 and made him proceed on the assumption that only three facilities were advanced to him. PW1 also testified that he prepared the report based on documents given to him by the Respondent and that the Appellant did make any imput or contribution to the report.

It was contended that having executed the acceptance of the facility and utilized the same, the Plaintiff cannot be heard complaining that the charges were excessive and illegal.