MR. Folorunsho Ogboja V. Access Bank PLC (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Justice Ondo State sitting in Akure delivered on the 5th December, 2012 wherein it entered Judgment against the Plaintiff and in favour of the Defendant/Counter Claimant in terms of the Defendant’s counter claim. Appellant herein was the Plaintiff/Defendant at the court below.

The Appellant was a customer of the respondent Commercial Bank who duly applied for overdraft facilities from the Respondent, completed the acceptance forms though the forms had modifications from the previous ones, but they were in any case signed Appellant paid all the principal sums and interest as in the signed forms of agreement; but defaulted on the principal facilities and interest for a whole year in respect of the renewed facility on the ground that it was fraudulently signed/induced as he was not brought into the picture of the changed conditions on terms thereof. The Debt mounted and in interest and charges.

The customer/Appellant herein as plaintiff sued for reliefs as contained in the record of appeal. They are reproduced verbatim thus:

“The Plaintiff’s claims as per his Amended Writ of Summons endorsed on paragraph 33 of his Amended Statement of claim filed on the 27th of September, 2012 are as follows:

1) A DECLARATION that the defendant cannot unilatera0lly increase or charge above the rates of interest agreed upon by the parties which were 22.5% per annum on facilities granted between 14/08/07 and 27/12/07 and 23% per annum on facilities on 12/1/09 without the consent of the plaintiff.

2) A DECLARATION that all the rates of interest charged on the facilities granted to the plaintiff by the defendant above and outside the agreed rates is illegal, null and void.

3) AN ORDER for the refund/payment of N1,072,421.75 to the plaintiff by the defendant being the excess charges on the credit facilities granted to the plaintiff by the defendant.

4) 100% penalty for failure to refund the excess charges within 14 days after notifying the defendant of the charges in accordance with the Central Bank Regulations 2004.

5) AN ORDER directing the defendant to produce an accurate statement of account of the plaintiff from March, 2007.

6) N5 Million damages for breach of contract.

7) A PERPETUAL INJUNCTIVE ORDER restraining the defendant, its agent, privies, servants, representative or any person however so called from selling either by public auction or private treaty the plaintiff’s property situated or lying at Plot 14, Block E, 3rd Avenue, Iralepo Layout Akure covered by a Certificate of Statutory Right Occupancy registered as 42/42/274 at the land registry office Akure.

The defendant filed its amended Statement of Defence and counter-claim to the plaintiff’s original statement of claim of the 20th of August, 2010. The defendant under paragraph 28 of its amended statement of defence and counter-claim, counter-claimed against the plaintiff as follows:

a) The sum of N1,729,938.84 inclusive of interest being the outstanding indebtedness of the plaintiff to the defendant/counter-claimant at the request of the plaintiff which payment is due in spite of repeated demands,