MR. Brendan Nicodemus Akpan V. First Bank Of Nigeria PLC (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment)

The Appellant lodged this appeal against the judgment of the High Court of Akwa Ibom State, sitting at Ikot Ekpene Division, Coram Hon. Justice Stephen E. Okon, J. delivered on February 17, 2014, wherein the reliefs sought by the Appellant, as claimant, were granted in part.

?The facts leading to this appeal as gleaned from the Record of Appeal are as follows: On or about 11/2/1997, the Appellant, who was a customer of the Respondent applied for an overdraft facility of N3,000,000.00 (Three Million Naira), from the Respondent to assist him boost his frozen fish trade. The sum of N1.5m (One Million, Five Hundred Thousand Naira) was approved by the Respondent.

A Deed of Legal Mortgage was executed on May 13, 1997, over the Appellant’s property covered by Certificate of Occupancy registered as 41/41/73 at the Lands Registry, Uyo. At the material time, the Appellant had substantial sums of money in his current and savings accounts domiciled with the Respondent. The Appellant operated the accounts with the approved overdraft. In the course of their relationship, disputes arose as to the state

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of indebtedness of the Appellant. The Respondent alleged that the Appellant had defaulted in the repayment of the overdraft sum and accrued interest therein and that the Appellant was indebted to the Respondent in the sum of N3,826,586.34 as at May 25, 2001. The Respondent made demand for the repayment and also published Notice of Sale of the mortgaged property in the Pioneer Newspaper of June 25, 2001. The name and family house of the Appellant was also published in the Daily Champion Newspaper of December 17, 2002 as debtor/mortgagor. The Appellant denied any subsisting indebtedness, claiming that he had liquidated his indebtedness to the Respondent. There was also a dispute over the interest rates and the conditions of the overdraft facility. The Appellant took out action against the Respondent in the lower Court. The Respondent filed an Amended Statement of Defence and Counter-Claim, to which the Appellant filed a Reply.

?At the conclusion of hearing, the learned trial Judge granted part of the reliefs sought by the Appellant and dismissed the Counter-Claim. The Appellant being dissatisfied with the said judgment lodged this appeal, out of time but

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by leave of this Court granted on October 22, 2015. The Notice of Appeal was filed on October 29, 2015 upon six grounds of appeal. Specifically, the part of the judgment complained about is as follows:

1. The decision of the lower Court holding that the claim for refund of N4,849,814.28 custodied by the Respondent is unsupportable and unacceptable.

a. The decision of the lower Court holding that there was no clear evidence on the interest rate which governs the overdraft transaction between the Appellant and the Respondent.

b. The refusal of the lower Court to resolve the controversy relating to sum of N1,078,065.000 wrongly misappropriated from the Appellant’s account by servants of the Respondent.

c. The decision of the lower Court refusing to award damages for defamation of the Appellant using the criteria of slander as the reason.

The parties exchanged Briefs of Argument, including the Appellant’s Reply Brief, which were respectively adopted on 19/4/2016 by David G. Udo, Esq., for the Appellant, and by Ms. T. Akinlalu, Esq., of Counsel, who adopted the Respondent’s Brief settled by Lady Helen Egube. Out of the six grounds of

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