Alhaji Abba Satomi Saleh Vs Bank Of The North Ltd (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

In the High Court of Justice of Borno State of Nigeria, in the Maiduguri Judicial Division and in suit No. M/166/88, the respondent herein, Bank of the North Ltd. as the plaintiff claimed against the appellant herein as the defendant as follows:-

” …. the sum of N2,041 ,078.73 (Two million, forty-one thousand and seventy-eight Naira, seventy-three kobo) against the defendant, being the balance due on overdraft and L.B.A. facilities granted to the said defendant as a customer of the plaintiff at his request from the period of November, 1973 to about 1987 inclusive of accrued interest and other bank charges thereon as at 30/9/1988 which amount the defendant ought to have repaid long ago but has refused or neglected to pay in spite of several demands by the plaintiff. The defendant’s indebtedness to plaintiff was admitted in writing on several occasions.

The plaintiff claims additionally, interest on the said amount of N2, 041 ,078,73 at the rate of 17% per annum from the 1st October, 1988 till the day of final payment of the judgment debt to be obtained herein plus costs of this suit.”

The appellant, Alhaji Abba Satomi Saleh, as the plaintiff in suit No. M/32/89 claimed against the respondent, herein as the defendant, in paragraph 13 of the statement of claim as follows:-

“13(a) A declaration that the removal of the total of N1,506,610.00 by the agents and/or servant of the defendant from the 3 accounts Nos.400085, License Buying Agent No.410093B and 410096B of the plaintiff through payment on cheques not issued or authorized by the plaintiff is wrong, null and void.

(b) A declaration that the defendant by the acts of its servant or agents has breached the sacred relationship between a Bank and its customer.

(c) An order that the defendant should repay to the plaintiff the total sum of N1,506,610.00 wrongly and negligently debited from accounts Nos. 400085, License Buying Agents Account No.410096B and 410093B.

(d) N100,000.00 General Damages.”

Pleadings were duly settled, 1iled and exchanged in each of the two suits which were eventually consolidated and tried together by the trial Judge. At the hearing, the respondent herein called three witnesses and tendered a number of documents, while the appellant testified and called a witness. After the address of counsel, in its judgment delivered on the 25/5/1995, the trial court dismissed the claims of the plaintiff in suit No. M/166/88 while the claims in suit No. M/32/89 were allowed. Bank of the North Ltd., the respondent herein, felt unhappy and appealed to the Court of Appeal, Jos Division. The Court of Appeal after hearing the appeal, in its judgment delivered on the 15/6/1999, reversed the decisions of the

trial court by granting the reliefs sought by Bank of the North Ltd.

in suit No. M/166/88 and by dismissing the claims of the appellant herein, in suit No. M/32/89. This, now is an appeal by Alhaji Abba Satomi Saleh as substituted, with leave of this court, with his son Muazu Abba Satomi Saleh. Now, the parties shall be referred to hereinafter as the appellant and the respondent as the case may be. But before I discuss the issue for determination in this appeal, it shall be necessary to set out the background facts.

Based on the pleadings and the evidence led at the trial, the facts of the case may be summarised as follows. The respondent is a banker and the appellant was its customer. The appellant was a businessman and a licensed buying agent based in Maiduguri and was carrying on business under the name and style of “Alhaji Abba Satomi Saleh and Sons.” The case of the respondent was that the appellant opened a current account on the 18/3/1971 with the respondent bank. As from November, 1973, at his request, the appellant was granted overdraft facilities on his own personal account and on the Licensed Buying Agent Account (hereinafter referred to as LBA account) in the sums of N3000 and N12,000.00 respectively.

By 1981, at the request of the appellant, the facilities were increased to a total of N400,000.00. As at 30/9/1988, the debit balance of the appellant’s accounts stood at N2,041,078.73 inclusive of accrued interest and bank charges. The respondent bank used to send regular statement of accounts and letters reminding him of his indebtedness.