Ishola V. Societe Generale Bank (Nig.) Limited (2012)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

In the Ilorin Judicial Division of the High Court of Kwara State, the plaintiff instituted an action against the defendant claiming, as subsequently amended, as follows –

“(1) The sum of One Hundred and Fifty-Four Thousand, Three hundred and fifty-seven Naira, Fourteen Kobo (154,357.14k) being the principal Overdraft, plus accumulated interests and other Bank charges as on the 31st day of October, 1986.

(2) Interest at the Bank rate of 15% per annum on the said sum from the 1st day of November, 1986 until 30th day of September, 1987.

(3) Interest at the Current Bank rate of 19% per annum from the 1st day of October, 1987 until the day of judgment.

(4) Interest at the rate of 10% per annum on the judgment debt from the date of judgment till final liquidation thereof.”

The suit was originally filed in the undefended list pursuant to the provisions of Order 3 Rules 8-14 of the Kwara State High Court (Civil Procedure) Rules, 1975. Following the defendant’s notice of intention to defend the suit under the provisions of Order 3 Rule 10 of the said Rules, he was admitted to defend the same whereupon the suit was on the 9th day of April, 1987 transferred to the General Cause List for hearing and determination. Pleadings were ordered in the suit and were duly, settled, filed and exchanged.

The plaintiff’s case is that on the 13th February, 1980, the defendant opened a Current Account No. 00307811131 with the sum of N200.00 in his name. On the basis of some arrangement between them, the defendant operated this account and on various dates purchased Bank Drafts from the plaintiff bank by means of cheques drawn on his account. The total amount of drafts purchased by the defendant from the plaintiff bank together with his other withdrawals from the said account between the 13th February, 1980 and the 3rd March, 1981 was N447,772.71. On the other hand, the defendant’s total lodgements into the account during the period amounted to N377,777.35. The defendant’s account was therefore over drawn to the tune of N69,995.35 as at the 3rd day of March, 1981. This was in addition to the accumulated interests, commissions and other charges which accrued to this account during the period which amounted to N5,630.11. The plaintiff claimed that as at the 3rd March, 1981 from which date the defendant stopped operating the account, his total indebtedness stood at N75,625.47. The account has remained dormant ever since although interest and commissions continued in the normal way of business to be charged and debited to the account. The plaintiff further claimed that the total outstanding debit balance in the defendant’s account as at the 31st October, 1986 stood at N154,357.14.

The plaintiff wrote various letters to the defendant drawing his attention to the position of the account. As these letters were ignored, the plaintiff finally made a formal demand in writing to the defendant for the liquidation of his indebtedness. This was by Exhibit 44 dated the 9th February, 1982. As Exhibit 44 was further ignored, the plaintiff filed this action as above indicated. Relevant documents including the defendant’s ledger cards Exhibit 2, and the bank statements of the defendant’s current account were tendered and admitted in evidence at the hearing.

The defendant’s position is a total denial of the plaintiffs’ claims. He denied enjoying any overdraft facilities as claimed by the plaintiff. In particular, he claimed that the plaintiff in breach of its duties misplaced some N60,000.00 he lodged into his account by cash and cheques but were never reflected or credited to his said account. He further asserted that the statements of account upon which the plaintiff has founded its claims were unreliable, inaccurate and did not show the correct position of his account. During his cross-examination, however, the defendant put the amount he paid but not credited to his account at over N64,000.00. In the alternative the defendant contended that the plaintiff’s action being in debt, was, in law unenforceable, in that the action in respect of the alleged debt was not filed within 6 years of its accrual and was therefore statute-barred by virtue of the provisions of the English Limitation Act, 1623. On the question of the interests claimed, the defendant denied knowledge of any banking tradition or custom in relation to interest chargeable on loans or overdrafts. He did not authorise or consent to the plaintiff charging any interest on his account. He also denied entering into any agreement with the plaintiff which entitled it to charge any interest, commission or Bank charges to his account. He described the plaintiff’s claims as baseless and, at all events, statute-barred.

At the subsequent trial, both parties testified on their own behalf and tendered Exhibits. At the conclusion of hearing, the learned trial Judge, Fabiyi, J. after a careful review of the evidence on the 19th January, 1990 found for the plaintiff against the defendant and decreed as follows –

“In conclusion, I enter judgment in favour of the plaintiff against the defendant in the sum of N69,995.35 plus 10% interest from 16.2.87 until the judgment sum is finally paid up.”

Dissatisfied with this decision of the trial court, the defendant lodged an appeal against the same to the Court of Appeal, Kaduna Division, which in a unanimous decision, substantially dismissed the appeal on the 1st day of July, 1993, and affirmed the judgment of the trial court in favour of the plaintiff against the defendant in the sum of N69,995.35 being the balance of overdraft facility granted by the plaintiff to the defendant as at the 31st day of October, 1986. It was however ordered that the 10% interest chargeable on this judgment debt was to start running from the date of the judgment of the trial court on the 29th January, 1990 and not from the date the action was instituted on the 16th February, 1987.

Aggrieved by this decision of the Court of Appeal, both parties appealed to this court. The defendant has complained in the main appeal against that part of the decision of the court below which upheld the finding of the trial court to the effect that he was indebted to the plaintiff in the sum of N69,995.35 and that the suit was not statute barred. The plaintiff, on the other hand, has attacked that part of the decision of the court below which affirmed that the various rates of interest claimed on the overdraft were not proved. I shall hereinafter refer to the plaintiff and the defendant in this judgment simply as the respondent or the respondent/ cross-appellant and the appellant respectively.