Memudu Akanmu V. Co-operative Bank Plc. & Ors (2005)

LawGlobal-Hub Lead Judgment Report

AGBO, J.C.A.

This appeal is against the judgment of Hon. Justice Jimi Bode, sitting at the Osun State High Court, Osogbo, which judgment was delivered on 12th February, 2001. This appellant was the plaintiff in the suit, while the respondents were the defendants’ cross-claimants. The appellant had in paragraph 39 of his amended statement of claim in the court below, claimed of the defendants now respondents as follows:

“1. Declaration that the amount entered as debit balance in the plaintiff’s account No. PA. 11 with the 1st defendant is not a true and accurate reflection of the plaintiff’s account.

2. Declaration that the plaintiff is not liable to pay any charge by whatever name called on any debit, entries, improperly or wrongly entered by the 1st and 3rd defendants in the plaintiff’s account.
3. An order directing the 1st and 3rd defendant to furnish to the plaintiff, a true and accurate statement of the plaintiff’s account No. PA. 11.
4. Declaration that the exercise of the power of rights of sale by the defendants of the plaintiff’s properties situate, lying and being at Gbongan/Osogbo Road, Owode via Ede, Osun State which are Woleysam petrol station and two bungalow buildings covered by deed of mortgage registered as No. 29 at page 29 in volume 43 and No. 30 at page 30 in volume 43 respectively of the Land Registry in the office at Osogbo is null and void and of no effect.
5. A declaration that the purported auction Sale/notice by the second defendant to the plaintiff is defective for non-compliance with Auctioneer’s Law, Cap. 10, Laws of Oyo State of Nigeria, 1978 (applicable in Osun State) and it is therefore null and void.
6. Injunction restraining the defendants, their agents, servants, officers and/or privies from taking any step or any further steps towards or in pursuance of the decision of the defendants to sell the plaintiff’s properties situate, lying and being at Gbongan/Osogbo station and two bungalow buildings covered by deed of mortgage registered as No. 29 at page 29 in volume 43 and No. 30 at page 30 in volume 43 respectively of the Lands Registry in the office at Osogbo.
7. Any other relief that the plaintiff may be entitled to in this suit.
8. The plaintiff claims the sum of N 1,200,000.00 (One and third defendants jointly, severally and collectively being the cost of the plaintiffs 40 (Forty) Tons (640 bags) of Graded cocoa beans which the first and third defendants removed and sold from the plaintiff’s Cocoa-Store in his absence without the plaintiff’s knowledge, consent and/or authority in January, 1990.
9. The plaintiff claims the sum of N192,000.00 (One Hundred and Ninety-Two Thousand Naira), being the cost of the plaintiff’s 640 (six Hundred and Forty) empty bags of cocoa beans which the first and third defendants removed and sold from the plaintiff’s cocoa-store in his absence without his knowledge, consent and/or authority sometime in January, 1990.
10. Interest at the rate of 15% (Fifteen per-cent) from the 15th day of January, 1990, till the judgment is delivered and at the rate of 10% from the date of judgment till Judgment debt is fully paid”.

The respondents joined issues with the appellants in their statement of defence and denied the claims. The 1st defendant/respondent further counter-claimed from paragraph 21 to 26 of the amended statement of defence as follows:-

“21. The defendants plead and repeat paragraphs 1-20 of the amended statement of defence by way of counter-claim and aver further as follows:

22. The various credit facilities granted to the plaintiff were done in the normal course of banking business which facilities attracted varying rates of interest as stipulated from time to time by the 1st defendant and capitalized monthly.
23. The statements of account were never controverted by the plaintiff.
24. The various credit facilities which were fully utilized by the plaintiff resulted in the plaintiff becoming indebted to 1st defendant in the sum of N498,857.76 (Four Hundred And Ninety-Eight Thousand, Eight Hundred and Fifty Seven Naira and Seventy-Six Kobo.
25. The plaintiff instead of paying up his just debt applied for stoppage of interest on his account which request was rejected.
26. Whereof the 1st defendant counter-claims against the plaintiff the sum of N498,857.76 (Four Hundred and Ninety Eight Thousand, Eight Hundred and Fifty Seven Naira and Seventy Six Kobo) being the plaintiff’s indebtedness to it as at the 21st of June, 1995. Interest on the said sum at the rate of 21% per annum from the 22nd of June, 1995, until whole debt is finally liquidated”.

After taking evidence from the parties and taking their addresses, the court below in its judgment dismissed the plaintiffs’ claim and granted the 1st defendant’s counter-claim in full. Dissatisfied with that judgment, the appellant on 2nd May filed this appeal. He set out the following grounds of appeal:-

“1 The learned trial judge erred in law and on facts when he held thus:

” … That the plaintiff is not entitled to N1,200,000.00 (One Million, Two Hundred Thousand Naira) from the defendants because the cocoa was removed and sold from the plaintiff’s store with his knowledge, consent and authority. I also hold that the defendants are not liable to pay N192,000.00 (One Hundred and Ninety-Two Thousand) being cost of 640 empty bags of cocoa beans because it was removed and sold from the plaintiff’s cocoa store with the plaintiff’s consent, knowledge and authority.”

Particulars of error:

(i) The sale of the graded 40 tons of Cocoa beans and the 640 empty cocoa bags by the 1st defendant was without the express or ostensible authority from the plaintiff to sell same.

(ii) The sale of the graded 40 tons of cocoa beans and the 640 empty cocoa bags by the 1st defendant was tainted with undue influence exercised over the plaintiff by the 1st defendant knowing fully well that the plaintiff was in custody at Iyaganku police station, Ibadan, for an alleged armed robbery case.

2. The learned trial judge erred in law, in entering judgment for the defendants/respondents, when the evidence of D.W.1 Oladayo Oladipo, (the only witness to the defendants/respondents) at the trial was at variance with their pleadings.

Particulars of Error:

(i) The defendants/respondents’ witness (i.e. D.W1) claimed at the trial to have visited the plaintiff not less than 4 (four) times at Iyaganku, police station, Ibadan and at Agodi prisons on about 5 (five) occasions and that during one of his visits to the plaintiff, the plaintiff called him and requested that the 1st defendant should help him sell his cocoa whereas this piece of evidence was never pleaded in the amended statement of defence and counter-claim.

(ii) The D.W.1 gave evidence at the trial that he weighted the cocoa in the presence of the following: