Suleiko Communications Limited V. Access Bank Plc (2016)

LawGlobal-Hub Lead Judgment Report

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

This appeal is against the judgment of the High Court of Kaduna State in Suit No KDH/KAD/58/2010 delivered by Honorable Justice D. Mallam on the 15th of March, 2013. The Appellant commenced the action in the lower Court and its claims against the Respondent were for:
i. A declaration that the Appellant’s loan account with the Respondent has been debited with unauthorized illegal debits outside its loan agreement dated the 8th of April, 2009 amounting to tune of over N64 Million.
ii. A further declaration that the Respondent is not entitled to charge compound interest on the Appellant’s account contrary to the agreement of the parties.
iii. A declaration that the Respondent is only entitled to charge the interest or rates agreed upon by the parties in the loan agreement with the Appellant.
iv. An order directing a thorough reconciliation of the Appellant’s account with the Respondent by a reputable and independent firm of Chartered Accountants to be appointed by the Court.
?v. An order of this Honorable Court directing an independent

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reputable Estate Surveyor and Valuer appointed by the Honorable Court to value the property known as No A1 Close FF Ndajika Close, Malali GRA Kaduna to ascertain the appropriate and current open market value and forced sales value.
vi. An order setting aside all other charges whether by way of interest, commission on turn over (COT) unauthorized dealings, unlawful and illegal transaction by whatever name called by the Respondent in the Appellant’s aforesaid loan account.
vii. A declaration that the Respondent cannot cause to be advertised, sell, possess or realize in any manner, the Appellant’s landed property situate at Plot No A1 Close FF Ndajika Close, Malali GRA Kaduna given in security of its loan with the Respondent, pending the determination of this suit.
viii. A declaration that the valuation report expressed in the loan agreement putting the property at an open market value of N72.3 Million and a forced sales value of N48.4 Million in November 2007 does not represent the appropriate value of the said property as at the date of this suit.
ix. An order of perpetual injunction restraining the Respondent whether by themselves or its

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agents, servants, assigns or privies by whatsoever named called from:
a. Taking any step or action to sell, eject, of possess the afore property of the Appellant in this suit on account of the disputed accounts of the Appellant in pursuance of any purported powers in the loan agreement or other document related thereto.
b. From publishing or advertising the aforesaid property for sale in any manner, whether by private or public media authorities, on account of the disputed loan account herein.
x. A declaration that the Respondent is in breach of its contractual relationship with the Appellant by reason of its authorized debits bloating the said account.
xi. Legal costs of this action.
xii. General damages in the sum of N5 Million.
?
The case of the Appellant on the pleadings was that it is a customer of the Respondent and that since 2005, it had enjoyed banking facilities offered by the Respondent starting with the offer letter of 17th of June, 2005 for the sum of N4 Million and this was later novated by similar facilities as represented in offer letters dated 30th of April, 2007, 24th of September, 2007, 10th of March, 2008 and

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that all the facilities were cumulatively represented in the last and final offer letter of 8th of April, 2009 which restructured all the earlier facilities. It was its case that since 2005, the Respondent has failed to keep it abreast of the developments in its aforesaid account and has constantly debited its account with unauthorized and illegal sums that were not in consonance with terms of the different offer letters and its loan agreement and that it wrote several protest letters to the Respondent intimating it of the unauthorized and illegal debits. It was its case that on the 1st of June, 2009, the Respondent, in contravention of the terms of agreement between them, levied and imposed a default fee of 45% per annum on its account as against the agreed rate 39% per annum and that by reason of the aforesaid illegal debits, its account was overcharged to the tune of over N65 Million as at September 2009 and that the Respondent refused to reverse the illegal debits despite its demands.
?
It was the case of the Appellant that on the 1st of December, 2009 the Respondent wrote it a letter of demand for the debit balance in its account which stood at

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N142,036,773.43 and which sum comprised largely of illegal charges and that it wrote letters to the Respondent to protest the amount, but that the Respondent ignored the protest and caused its Solicitors to write to demand the payment of the sum not later than the 15th of January, 2010 and failing which it would take steps to realize the security given for the facilities. It was its case that the security for the facility, which is its property situate at No A1 Close FF Ndajika Close, Malali GRA Kaduna, has a present open market value of N180 Million contrary to the sum of N72.3 Million and a forced sale value of N48.4 Million recorded in the books of the Respondent which were based on a valuation carried out in 2007. It was its case that in October of 2009, the Respondent transferred the sum of N7,365,054.80 from its fixed deposit account into the loan account to reduce the indebtedness and that this action of the Respondent was not notified to it until it wrote a letter on the 4th of February, 2010 requesting that the sum be applied to liquidate part of the indebtedness. It was its case that the way and manner the Respondent manipulated its account

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negatively impacted the account and caused its Managing Director severe health problems leading to hospitalization and frustrated business opportunities.
?
The case of the Respondent on the pleadings was that the Appellant was its customer with an account at its branch on Bida Road, Kaduna and that, at the request of the Appellant, it offered diverse credit facilities to the Appellant on diverse dates and these were term loans of N35 Million at an agreed interest rate of 22% and of N55 Million also at an agreed interest rate of 22% and an overdraft facility of N40 Million at an agreed interest rate of 20% and that the Appellant accepted the offers. It was its case that the facilities were secured by a duly registered tripartite legal mortgage executed by the Managing Director of the Appellant over the property situate at No 1A Close FF, Malali South East Residential Layout and also known as No A1 Close FF Ndajika Close, Malali GRA Kaduna, and also by the personal guarantee of the said Managing Director. It was its case that the Appellants utilized the facilities by issuing several cheques to draw down on them and that in addition to the terms of the offers

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of facilities contained in the letter of offer dated 8th April, 2009, the deed of legal mortgage gave the Respondent the power charge compound interest.