Standard Trust Bank Ltd. V. Interdrill Nigeria Ltd. & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A.

This is an appeal against the judgment delivered on 5th December 2003 in the High Court of Justice, Delta State, Warri Judicial Division in suit No. W/76/2001: Standard Trust Bank Ltd v. Interdrill Nigeria Limited and Joseph Bogwu in which the trial judge dismissed the Plaintiff’s case in toto. The plaintiff (hereinafter referred to as the appellant) had by a Writ of summons marked by the plaintiff/appellant “UNDEFENDED LIST” claimed against the defendants (hereinafter referred to as the respondents) jointly and severally as follows:

“1. The sum of N17,835,802.67 (Seventeen Million Eight Hundred and Thirty-Five Thousand, Eight Hundred and Two Naira Sixty- Seven Kobo) being the outstanding debit balance in the first defendant’s account with the plaintiff as at 2nd February, 2001 which sum is due to the plaintiff from an overdraft facility granted to the first defendant at the first defendant’s request and guarantee by the second defendant which sum the defendants have failed neglected, omitted and/or refused to pay inspite of repeated demands.

2. 31 % per annum on the said sum of N17, 835,802,67 (Seventeen Million Eight Hundred and Thirty-Five Thousand, Eight Hundred and Two Naira Sixty-Seven Kobo) from February 03, 2001 until judgment and thereafter 10% per annum on the judgment sum until same is fully liquidated.”

As I have said, the appellant endorsed the Writ as an Undefended List and he therefore supported it with a twenty-four-paragraph affidavit setting forth the grounds upon which the claim was based, together with copies of documents substantiating the claim. Upon the service of the said writ on the respondents they filed a Notice of intention to defend the suit supporting it first with an affidavit of 18 paragraphs and by a 6-paragraph further and better affidavit disclosing their defence. In its opposition, the appellant filed a Reply of a paragraph to the said further and better affidavit of the respondents. Sequel to considering these opposing pieces of printed evidence and upon taking the addresses of their respective counsel, the Judge in a considered ruling removed the case from the Undefended List and transferred same to the General Cause List for hearing and determination. Suffice it to say that on the application of the appellants, the case was transferred to another judge, who for the purposes of this appeal will henceforth be referred to as the learned trial judge who set the case down for hearing and parties proceeded to leading evidence from the 5th of August 2003. It is perhaps necessary to say that the parties led evidence based on opposing printed depositions they filed. At the conclusion of their evidence and after taking the addresses of counsel, the learned trial judge in a considered judgment delivered on the 5th of December, 2003 ordered a dismissal of the appellant’s suit.

In reaching this conclusion, the learned trial judge had reasoned:-

“The court prefers the evidence of plaintiff that the nature of the transaction was the grant of facility of N20,000,000.00 by the plaintiff to the 1st defendant by the implied admission of the defendant 1st defendant utilized N10,000,000.00 – See paragraph 11 of the affidavit of defendants accompanying the Notice of Intention to defend and see Exhibits 1 and 2 Exhibited to the accompanying affidavit to the writ. The court finds as a fact that there was a banker and customer relationship and the facility was granted in cause (sic) of the relationship, See paragraphs 2, 3 and 4 of the affidavit accompanying the writ of summons.

The Court rejects the defence of the relationship of partnership set up by the defendants, it is a frivolous attempt to defeat the transaction duly entered into by the plaintiff and the defendant.

The crucial question for the consideration of the court is whether the plaintiff by the affidavit evidence proved the indebtedness of N17,835,802.67 on preponderance of evidence.

The defendants at paragraph 14 of the affidavit accompanying the notice of intention to defend, denied the interest of 31 % per annum which the plaintiff charged on the N10,000,000.00 and the debt of N17,835,802.67 and respectively described same as outrages and imaginative. At paragraphs 13 and 15 of the same affidavit defendants denied the receipt of statement of accounts plaintiff allegedly sent to the defendants.

Defendants specially denied the rate of .interest of Exhibit STB9 Exhibited to the affidavit accompanying the writ. The denial of the receipt of the statement of accounts and the interest rates placed on burden on the plaintiff to prove on preponderance of evidence the true interest rates agreed by the parties at the time of the loan transaction.

Exhibit STB1 Exhibited to the affidavit accompanying the writ of summons under interest rate states the interest to be 12% on the aggregate reflecting 20% interest rate on the loan and the 1% as floating above the bank in the prime lending rate. Other charges were 5% flat per month for arrangement fee and 5% flat per month for management fee. The conditions precedent to draw down were stated in the agreement and the court holds that the same were perfected by the evidence of the drawing of N10,000,000.00 out of the facility granted by the plaintiff by the 1st defendant.

The plaintiff at paragraph 10 of its affidavit deposed that it charged prevailing interest rate on the facility. It particularly at paragraph 11 thereof deposed: –

Para 11: That I know as a fact that it was agreed upon between the parties that interest at 21% per annum subject to review in line with the prevailing bank rate would be charged from time by the plaintiff on any outstanding monies due it from the defendant.

Plaintiff deposed at paragraph 17 of its said affidavit of the present bank levy rates of 31% per annum which brought the debt claimed to the sum of N17, 835,802.67.