Chief Festus Sunmola Yesufu V African Continental Bank Ltd (1980)
LawGlobal-Hub Lead Judgment Report
K. ESO, JSC.
We dismissed this appeal on 26th November, 1979 and reserved our reasons. My Lords, I now give my reasons for agreeing that the appeal be dismissed.
In the court of trial, the plaintiffs (the African Continental Bank) who are now the respondents in this court, and who would hereinafter be referred to as the respondents in this judgment, took out a writ of summons against the defendant, Chief Festus Sunmoila Yesufu, who is the appellant in this court, and would hereinafter be referred to as the appellant –
“…..for the sum of N1,128,057.40 (One Million, One Hundred and Twenty-eight Thousand, Fifty-Seven Naira, Forty Kobo) being money granted to the defendant at his request by way of overdraft accommodation and/or facilities from the plaintiff who are Bankers. As at 30th April 1976, the defendant was granted the total sum of N1,128,057.40 aforesaid, as overdraft drawn on his current account No. 2285 with the plaintiff at Benin Judicial Division. The said sum of N1,128,057.40 which included the principal, interest and other bank charges calculated up to and inclusive of 30th April, 1976, has since become due and payable by the defendant to the plaintiff, but in spite of repeated demands made by the plaintiff, the defendants neglects and/or refuses to pay.”
There were also a claim for interest at the rate of 9%, a declaratory claim and a claim for specific performance to wit –
“(a) A declaration that the plaintiff is entitled in terms of the deed of mortgage registered as No. 29 at Page 29 in Volume 10 of the Lands Registry in the Office at Benin City, to exercise the power of sale over the defendant’s landed property situate and lying at No. 48 Lawani Street, Benin City, the title deed of which was of the Lands Registry in the Office at Benin City.
(b) Specific performance compelling the defendant to make and execute a valid legal deed of mortgage of the landed property together with any building thereon situate and lying at Ward ‘C’ Lawani Street, Benin City, the title deed of which was registered as No. 41 at page 41 in Volume 48 in the Lands Registry in the office at Benin City and deposited with the plaintiff by way of an equitable mortgage by the defendant, as an additional security for the overdraft facilities/accommodation aforementioned granted to the defendant.”
After pleadings had been duly filed and evidence taken, the learned trial Chief Judge of Bendel State, V. E. Ovie-Whiskey, CJ., in a considered judgment entered judgment for the respondents in the sum of N661,993.42. He dismissed all the other claims.
Both parties were dissatisfied with this judgment and they both appealed to the Federal Court of Appeal. Their Lordships of the Federal Court of Appeal, Eboh, Agbaje and Nnaemeka-Agu, JJCA., having heard arguments on the appeal and cross appeal, in a well considered judgment, allowed both the appeal and the cross appeal, the sum total of which resulted in setting aside the judgment and order of award made by the learned Chief Judge in favour of the respondents and in its place they entered a non-suit. In entering the order of non-suit their Lordships said:
“There is no doubt in our minds that the defendant is indebted to the plaintiff in some amount of money having regard especially to Exhibit 8 in this case. It is just that it is not possible to quantify the amount of his indebtedness on the authorities and the evidence before the court. We are however satisfied that this is not a case where the plaintiff’s case should be dismissed since that undoubtedly will be wronging the plaintiff. On the evidence before the lower court the defendant definitely is not entitled to judgment since it is clear that he owed something to the plaintiff. The defendant even admitted in cross-examination that at the time a document, Exhibit 54 was made i.e. 31st December, 1969, he was owing the plaintiff about £9,000 (N18,000.00). The order we propose therefore, to make guided by the decision of the Supreme Court in Chief Dada v. Chief Ogunremi & Anor. (1967) NMLR 181 at 185 is to non-suit the plaintiff”.
It is against this order of non-suit the appellant has appealed to this court, and, quite naturally, this was the only point taken in this appeal before us.
It will now be convenient to set out the facts that led to this order of non-suit.
The appellant, a customer of the respondents was granted overdraft facilities at a compound interest of 9% per annum to be drawn on his current account which he maintained with the respondents in their Benin City Branch. He used his landed properties in Benin City as security for the overdraft. The appellant drew various sums on the account. He also operated the account for what he referred to in his pleadings as negotiating or discounting a number of bills or sight drafts which were drawn on irrevocable import letters of credit opened in his favour and/or his company by his overseas customers to whom he exported various grades of locally processed rubber.
To prove their case, the respondents tendered a lot of documents. Those relevant for the purpose of this judgment would be referred to presently.
Exhibit A is the statement of account of the appellant with the respondents. It shows statement from 12/11/66 to April, 1976, and the last item therein shows debit of N1,108,057.40.
This exhibit was tendered to prove paragraph 11 of the appellant’s Statement of Claim.
Exhibit 8, dated 21st July 1971, was written during the currency of Exhibit A by the appellant to the respondents and it reads –
“SARAH & YESUFU TRADING COMPANY
P. O. Box 151,
Benin.
21st July, 1971.
The Senior Solicitor,
African Continental Bank Ltd.,
Head Office,
P.M.B. 2466,
Lagos.
Dear Sir,
Re: My Overall Indebtedness
I intend to liquidate my total indebtedness with the Bank on or before the end of September, 1971 or substantially reduce the amount. The two months should be regarded as months of grace to enable me double my efforts towards the clearing of this adverse balance.
Considering my past relationship with the Bank, I hope you will use your good office to make this consideration. I will also like the Senior Solicitor to give me sometime to reconcile some of the outstandings which are expected to be credited to my account to reduce my indebtedness and have not been done.
Litigation as you know is protracted and might not be in the interest of the cordial relationship that has always existed between the bank and myself.
Kindly give this my unflinching proposal your consideration. If I fail, you can go on with your court action for recovery. I give my honour on this transaction and I promise that I won’t fail.
I have outstanding bills and as soon as they mature or the proceeds are received, I will pay same to reduce the balance and I am also expecting some money from Finance Houses for the expansion of my business.
Be rest assured that I will not fail.
Yours Faithfully,
For: SARAH & YESUFU TRADING COMPANY
(Sgd.) F. S. YESUFU
MANAGING DIRECTOR”
Exhibits 18-18N are the original ledger cards containing statement of account of the appellant the last entry showing that the appellant was in debit to the tune of N763,798.27 when the account was closed as the case was already in court.
The learned trial Chief Judge in coming to the decision aforesaid, relied mainly on Exhibits 8, 18 to 18N and disregarded Exhibit A. He believed Exhibit A was discredited in cross-examination. He accepted the contents of Exhibits 18 to 18N as evidence of the transaction between the parties, and regarded Exhibit 8 as an acknowledgement of indebtedness by the appellant to the respondents. He said, in regard to this exhibit –
“I am satisfied beyond any shadow of doubt on the evidence before me, that Exhibit 8 is a letter written by the defendant to the plaintiffs admitting his indebtedness to the plaintiffs on the 21st July 1971”
and then found for the respondents as already stated.
The learned Justices of the Federal Court of Appeal, though satisfied that Exhibit
Other Citation: (1980) LCN/1119(SC)
