Mrs. Olajumoke Akinwale-oguntimehin & Ors V. Trade Bank PLC (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Lagos Coram Honourable Justice Atilade delivered on the 29th September, 2010 in favour of the Respondent.

The material facts that led to this appeal are that this suit was originally initiated by Mr. Benjamin Onilari who later died on 8th July, 2009. Thus, his daughter, the 1st Appellant in this appeal was substituted for him by an order of Court made on the 14th October, 2009. The original Claimant commenced this action against the Defendant by writ of Summons dated 11th December, 2003 seeking declarative and injunctive reliefs.

The Respondent filed a Statement of Defence and a Counter-Claim on the 15th March 2005 joining the 2nd and 3rd Appellants as Defendants to the Counter-Claim. Upon leave of Court granted on the 8th August 2005, the Respondent filed an amended Statement of Defence and Counter-Claim claiming the sum of N87, 253, 331. 11 (Eighty Seven Million, Two Hundred and Fifty Three Thousand, Three Hundred and Thirty One Naira, Eleven Kobo) which the Respondent alleges are principal sum together with interest of

1

money owed it by the Appellant on loan facilities granted the 2nd Appellant and guaranteed by the 1st and 3rd Appellants. The agreed interest rate was 19% per annum from December 2004 until judgment and thereafter at 71/2 % per annum until the judgment debt is liquidated. The demand for the repayment of the loan came after the 1st Appellant alleged that the 2nd Appellant’s account with the Respondent has not been properly managed and therefore discharged from the guarantee made.

Having failed to proffer satisfactory explanation and understanding on the principal sum and the interest, the Appellant sought to be discharged from the guarantee and requested for the release of his title documents. At the conclusion of trial, the lower Court granted the Counter-Claim of the Respondent and dismissed the Appellant’s claim.

Dissatisfied with the judgment of the lower Court, the Appellant filed a Notice of Appeal dated 23rd December, 2010 with (17) seventeen grounds of appeal.

The Appellant’s brief which was settled by A. J. Owonikoko, SAN, Olushola Keshinro (Mrs.) and Titilola Olatunde (Mrs.) of Synergy Attornies is dated and filed on 3rd June 2013, and the

2

Reply Brief is dated and filed on the 13th September, 2013. The Appellant formulated four issues for determination to wit:

1. Whether the Respondent had the locus standi to prosecute the counter-claim involving claims related to banking practices (to wit: receipt of deposits, grants of loans, charging of interests) after its banking license had been withdrawn (Grounds 1, 2 and, 15).
2. Whether the trial Court rightly treated, the 1st Appellant as a customer as of the Respondent instead of as a surety who stood discharged as a result of adverse dealings by the Respondent on the credit facilities granted to the 2nd Appellant (Ground’s 13 and 14).
3. Whether the trial Court correctly absolved the Respondent of any responsibilities to the 2nd Appellant given the peculiar concessions and arrangements involved in the relationship between the two which transcended ordinary banker and, customer relationship (Grounds 3, 6, 7, 8, 10 and 16)
4. Whether there was any credible unchallenged evidence before the trial Court to support the award, of Eighty Seven Million, Two Hundred, and, Fifty Three Thousand, Three Hundred, and Thirty One Naira, Eleven

3

Kobo (N87, 253, 331.11) granted, to the Respondent against the 1st Appellant (Grounds 4, 5, 9, 11, 12 and 17).

The Respondent’s Brief dated 4th July, 2013 and filed 5th July, 2013 was settled by Prince Ben C. Onuora Esq. and Martins Besong Esq. of Ben Onuora & Company. The Respondent also distilled four issues fashioned out of the Appellants’ issues as follow: