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.
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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.
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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.
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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.

It was the case of the Respondent that it kept needed records of the term loans enjoyed by the Appellant in separate loan repayment schedules while the records of the overdraft facility were kept in the current account of the Appellant and that by the terms of the offers the Appellant was obliged to make monthly repayments of principal and interests on N35 Million term loan and quarterly repayments of principal and interests on N55 Million term loan and that where the repayments fall due and are not paid, they are debited into the current account of the Appellant and credited into the loan accounts. It was its case that due to the failure of the Appellant to make the agreed repayments, the balance in the current account exceeded the approved overdraft facility limit of N40 Million and it charged interest at default rates only on the excess, over the limit of the overdraft facility, from time to time as agreed while the overdraft facility continued to be charged interest at the normal rate of

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22%. It was the case of the Respondent that the balance in the current account stood at N105,234,063.45 as at the close of business on 3rd of March, 2010 while the outstanding balance in the N35 Million loan account stood at N12,737,922.43 and that in the N55 Million loan account was N34,602,910.96 and it always kept the Appellant informed of the position of its accounts and requested it to pay its debts and that the Appellant consistently acknowledged its indebtedness but kept postponing repayment with pleas to it to stop or review the rates of interests being charged on the debit balance in the current account.

The Respondent denied ever manipulating or overcharging interests or illegally deducting the sum of N65 Million or any sum at all from the account of the Appellant and it was its case that the Appellant gave it a right of general lien and the power to combine accounts belonging to the Appellant either by way of set off or by transferring sums in the account towards the satisfaction of the indebtedness without notice to the Appellant and it was in exercise of the power that it transferred the money in the fixed deposit account of the

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Appellant into the current account. It was its case that the Appellant was in occupation of the mortgaged property and was at liberty to carry out a re-valuation if it desired and that the Appellant has taken immense benefit from the credit facilities extended by it and had at all time been aware of the costs of such financial support and is estopped from denying it the right to charge interests as agreed. It was its case that the Appellant has failed, refused and neglected to liquidate the outstanding balances in its account despite repeated demands and it counterclaimed thus:
i. The sum of N105,234,063.45 being the outstanding debit balance in the Appellant’s current account as money payable by the Appellant to the Respondent for money lent by the Respondent to the Appellant as its bankers and at its request, and for interest agreed to be paid on the money due as at the close of business on the 3rd of March, 2010.
ii. Interest at rate of 22% per annum over the approved overdraft of N40 Million and 45% per annum on the excess over the approved limit from the 4th day of March, 2010 until payment or judgment and thereafter.
iii. The sum of

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N12,737,922.43 being the outstanding debit balance on the N35 Million term loan granted to the Appellant.
iv. Interest on the sum at rate of 22% per annum from March 2010 until payment or judgment and thereafter.
v. The sum of N34,602,910.96 being the outstanding debit balance on the N55 Million term loan granted to the Appellant.
vi. Interest on the sum at rate of 22% per annum from March 2010 until payment or judgment and thereafter.
vii. The Respondent also claimed the cost of bringing the action.

The matter proceeded to trial and in the course of which the Appellant called two witnesses and tendered exhibits in proof of its case while the Respondent called one witness and tendered exhibits in proof of its case. At the conclusion of trial and after the rendering of final written addresses by Counsel to the parties, the lower Court entered judgment dismissing the claims of the Appellant in their entirety and granting the counterclaim of the Respondent. The Appellant was dissatisfied with the judgment and its Counsel filed a notice of appeal dated the 28th of March, 2013 containing five grounds of appeal against it.
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Counsel to the

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Appellant distilled four issues for determination in this appeal and these were:
i. Whether having regard to the evidence (oral and documentary) adduced before the trial Court, it was right to have refused the apparent claims of illegal and unauthorized deduction/charges on the Appellant?s accounts in Exhibit P4a-d, on grounds of them being either credit reversals or without proof.
ii. Whether by a literal interpretation of Exhibit P1, the operative letter of offer from the Respondent to the Appellant, particularly under the interest clause thereof, the default interest rate of 39% stated therein is not static, as opposed to the general interest rate of 22% per annum which fluctuates in line with prevailing market conditions, and if the answer is in the affirmative, whether this finding of the lower Court did not adversely affect the judgment of the lower Court wherein it held that the Respondent were entitled to review the default interest rate from 39% to 45% as they did in Exhibit P10 in breach of the said interest clause in Exhibit P1.
iii. Whether upon due consideration of both oral and documentary evidence, and admissions of the

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Respondent at the trial, the trial Court was right in law to have granted all the reliefs in the counterclaim, which were clearly outside the operative and only loan agreement of 8th of April, 2009 that existed between the Parties.
iv. Whether the lower Court had jurisdiction to entertain the Respondent’s counterclaim dated the 8th of March 2010 in the face of the Appellant’s suit challenging the Respondent’s computation of what is due to it and the entire transaction between the parties or whether the Respondent’s counterclaim was properly before the Court having regard to its filing during the pendency of the Appellant’s suit.

On his part, Counsel to the Respondent formulated two issues for determination as arising in this appeal. These were:
i. Whether having regard to the evidence before the Court, the Appellant proved allegations of illegal charges or unauthorized deductions from its account.
ii. Whether, on the bare facts and circumstances of this case, the Respondent was entitled to succeed on the counterclaim.
?
Reading through the records of appeal, the judgment of the lower Court and the arguments contained in the briefs of

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argument of the parties, it is the view of this Court that the two issues for determination formulated by the Counsel to the Respondent better capture the matters arising for consideration in this appeal. The appeal will be resolved on the two issues for determination and all the arguments of Counsel in this appeal will be considered there under.
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In arguing the first issue for determination, Counsel to the Appellants stated that the Appellant’s contention was that while the finding of the lower Court that the general interest rates chargeable on the loan and overdraft credit facilities advanced to the Appellant by the Respondent were not static, and were subject to change from time to time, was correct, the finding that the default interest of 39% chargeable on the accounts was also not static was incorrect. counsel referred to the interest clauses as stipulated in the terms as agreed by the parties and stated that a literal interpretation of the clauses confirms its position and that the unilateral increment of the default interest by Respondent from 39% to 45% with effect from 1st of June, 2009 as contained in the letter, Exhibit P10, was not in

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accordance with the agreed terms of the credit facilities and that thus, all the computations of interest based on Exhibit P10 were illegal and should be set aside. Counsel stated further that the default interest was a penal rate and was not enforceable in law and he referred to the case of Strode Vs Parker 23 ER 804.

Counsel stated further that the evidence of Central Bank rates and applicable interest rates were not cognizable by a Court as being judicially noticed and may only be brought by an expert who would be cross-examined on it and that therefore, the evidence of the second plaintiff witness, who was an expert, on the applicable interest fates ought to have been preferred by the lower Court over the evidence of the Respondent and he referred to the cases of FUT Akure vs Ajidahun (2013) All FWLR (Pt 1369) 1392 and Daniel Holdings Ltd vs UBA (2005) 13 NWLR (Pt 943) 533. Counsel stated that the Respondent cannot unilaterally impose interest rates other than those agreed upon between the parties of as otherwise required and approved by law and he referred to the case of Ayanlere Vs FMB (Nig) Ltd (1998) 11, NWLR (Pt. 575) 627. Counsel stated that the

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entire interest charged on the Appellant’s account with the Respondent is not only not as agreed between the parties, but equally penal in nature and should not be allowed.

Counsel stated that the Appellant pleaded the issue of unauthorized deductions and illegal charges in Paragraph 7 of the statement of claim and that the first plaintiff witness tendered letters marked as Exhibits P6 – P9 on the protest of the Appellant of these illegal charges and that the second plaintiff witness was an expert witness and he tendered as Exhibit P16 the report of his work on the Appellant’s statement of account, Exhibit P4a – P4d and Exhibit P1, in proof of the illegal charges and unauthorized deductions. Counsel reiterated the arguments on the static nature of the default interest rate of 39% and stated that the Appellant protested the debit sum of N466,666.67 entered in its account as annual facility fee on the ground that there was no provision for such fee in Exhibit P1 and that the Appellant also raised the issue of unauthorized transfer of the sum of N7 Million from its call account into the overdraft account to defray part of the indebtedness without it notice

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or approval and such transfer of money from one account to the other without notice or approval was frowned upon in the case of Ogundeji Vs IBWA (1993) 2 NWLR (Pt. 278) 670.

Counsel stated that the first plaintiff witness also testified that he paid in a cheque for N17 Million into the Appellant’s account and that the sum was never credited into the account nor was the cheque returned to him, though same was reflected in the statement of account of the Appellant as having been returned unpaid and that the lower Court found that N17 Million was only a reversal of entry. Counsel stated that since there was no evidence from the Respondent explaining why and how the cheque for N17 Million was not credited into the account, and yet it was not returned to the Appellant, the lower Court ought to have held that the said sum of N17 Million was wrongly debited and that where a trial Court makes a finding that was not supported by the evidence led, same ought to be set aside by the appellate Court. Counsel stated the lower Court did not also make any finding on the sum of N466,666.67 debit into the Appellant’s account as annual facility fee and that all the illegal

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and unauthorized debits in the account were not only compounded and lumped together, but they continued to yield interest. Counsel stated that the second plaintiff witness, both in his deposition on oath and in the report tendered as Exhibit P16, pointed to several illegal and unauthorized deductions together with interest charges in the account of the Appellants amounting to N94,990,470.52. Counsel urged this Court to set aside the several findings of the lower Court on the issue of illegal deductions and to resolve this issue for determination in favour of the Appellant.

On the second issue for determination, Counsel raised the issue of jurisdiction saying that the Respondent filed its counterclaim in response to the case of the Appellant and that it was revealed in the course of trial that there was a tripartite legal mortgage executed between the parties with the Managing Director of the Appellant being the third party and that in the English cases of Union Bank of London Vs Ingram (1880) 16 Ch. D 53 and Re: L H Woods Limited (1969) 3 All ER 882 it was held that no action, such as the counterclaim of the Respondent, can be tried along with any action

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of a plaintiff mortgagor challenging the mortgage transaction between the parties. Counsel stated further that the counterclaim was in respect of a term loan of N55 Million and an overdraft facility of N40 Million and that the term loan was for a tenure of twenty four months while the overdraft was for twelve months and that while tenure of the overdraft had expired as the time the counterclaim was being prosecuted, the tenure of the term loan was yet to expire and that as such the claim in respect of the term loan was premature and the lower Court thus had no jurisdiction to entertain same.

Counsel reproduced the claims on the counterclaim and stated that it was established in the course of trial that the Appellant was exposed to the Respondent on only two transactions, the term loan for N55 Million and the overdraft facility for N40 Million and that there was no term loan of N35 Million as that transaction was restructured into the term loan for N55 Million and these facts were confirmed by the letter of offer of the facilities, Exhibit P1 as well as the statement of account of the Appellant. Counsel stated that in the face of these

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established facts, the lower Court was in error when it entered judgment on the counterclaim for reliefs sought in respect of the term loan of N35 Million and he urged that this Court can on this ground allow the appeal on the grant of the counterclaim and set aside that part of the judgment. Counsel urged this Court to resolve this issue for determination in favour of the Appellant.

In his final comments, Counsel prayed that this Court should allow the appeal and set aside the judgment of the lower Court.
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In his response and in arguing the first issue for determination, Counsel to the Respondent reiterated the established principle of civil litigation that the burden is on the party who claims the existence of certain facts to prove it and he stated that, from the allegations of made before the lower Court, the Appellant had the burden of proving that it paid moneys into its account which was not credited or improperly credited; that the rates of interest applied to the account was different from the rate of interest agreed by the parties; that unauthorized debits were charged into the account and that the bank lacked of authority to charge

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compound interest. Counsel stated that the Appellant was obligated to prove these facts by cogent and credible evidence and failing which its case must fail; he referred to the cases of Egharevba Vs Osagie (2009) 18 NWLR (Pt 1173) 299 and Mana Vs Peoples Democratic Party (2012) 13 NWLR (Pt 1319) 579. Counsel thereafter traversed through the testimonies of the two plaintiff witnesses and stated that it was not in dispute in the matter that the Respondent made a composite offer of credit facilities, a term loan of N55 Million and an overdraft of N40 Million, by a letter dated the 8th of April, 2009, Exhibit P1, and that the terms of the offer as contained in the letter were accepted by the Appellant and that the first plaintiff witness admitted that the Appellant was owing the Respondent on account of both facilities and that the Appellant consented to pay the interest rates for both facilities as contained in Exhibit P1. Counsel reproduced the interest rate clauses on the two facilities as contained in Exhibit P1 and also referred to clause 1 in the deed of tripartite legal mortgage wherein the Appellant covenanted to the charging of compound interest on the

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facilities and he restated the established legal principle that parties are bound by the terms of agreement they freely enter into and he referred to the case of Aminu Ishola Investment Ltd Vs Afribank Nigeria Plc (2013) 9 NWLR (Pt 1359) 380, amongst others.

Counsel stated that it was in evidence that by several correspondences, especially Exhibits D4, D8, D11, D12 and D13, the Respondent notified the Appellant of review of interest rates as stipulated in Exhibit P1 and he referred to the case of Ekwunife Vs Wayne (West Africa) Ltd (1989) 12 SC 92 and what was required of a party claiming interest as of right and the case of Suberu Vs Atiba Iyalamu Saving & Loans Ltd (2007) NWLR (Pt 1043) 590 on the fact that rate of interest was dependent on agreement between the parties or established custom or consent of customer. Counsel stated that the Respondent was entitled to charge interest as it did on the debit balances in the account of the Appellant and also to charge compound interest thereon by Clause 1 of the Deed of Tripartite Legal Mortgage and he referred to the case of Adetoro Vs Union Bank Plc (2008) 13 NWLR (Pt 1104) 255 on the right of a

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bank to charge compound interest and the case of Abdullahi Vs Community Bank (2000) 7 NWLR (Pt 663) 9 on the right of a bank to charge reasonable rates of interest on overdrafts in accordance with universal banking custom and the fact that the right of a bank to charge interest and other bank charges must be resolve by a close examination of the agreement.
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Counsel stated that the Appellant failed woefully in the lower Court to discharge the burden of proving that its account was over debited and that its account was not credited with monies paid in and he traversed through the testimony of the second plaintiff witness and said the witness was a hireling made to do the bidding of the Appellant in contemplation of litigation and he noted the fact that the witness stated that he only worked with the documents supplied him by the Appellant and that he made no contact with the Respondent. Counsel stated that the lower Court rightly relied on the terms and conditions of the credit facilities as contained in the offer letter and the deed of tripartite legal mortgage in evaluating the cases presented by the parties and that the lower Court satisfactorily carried

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out its duty and there was no basis for interference by this Court and he referred to the case of Ndulue Vs Ojiakor (2013) 8 NWLR (Pt.1356) 311. Counsel urged this Court to resolve the first issue for determination in favour of the Respondent.

On the second issue for determination, Counsel stated that the Respondent pleaded facts and led credible evidence in support of its claims on the counterclaim and also relied on the admissions of the Appellant in the pleadings and evidence led in Court and he reproduced a portion of the testimony of the first plaintiff witness. Counsel stated that a counterclaim was a claim arising from but independent of the principal claim and he referred to the case of Ladunni Vs Wema Bank Limited (2011) 4 NWLR (Pt 1236) 44 on the nature of a counterclaim and said the contention of the Appellant that the counterclaim was an abuse of process was not well founded as the Respondent did not institute a fresh suit and only counterclaimed in the same suit as allowed by the Rules of Court. Counsel stated that the submission of the Appellant that the lower Court lacked jurisdiction to entertain the counterclaim on the ground that the

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cause of action had not risen that it was thus premature, completely ignored the wordings of the terms of the credit facilities that empowered the Respondent to demand and make a case for the entire sum outstanding at anytime the Appellant defaulted in paying the periodic sum due on the account.

Counsel stated that there was evidence that the Appellant failed to pay the periodic sums due on the facilities and that there were correspondences exchanged between the parties on the issue and that the Respondent thus acted within its rights in making the claims in the counterclaim at the time it did notwithstanding that the stated tenure of the term loan was yet to expire. Counsel reiterated the principle that parties are bound by their contracts and a Court cannot add to or subtract from the contract freely entered into by parties and he referred to the case of Babatunde Vs Bank of the North (2011) 18 NWLR (Pt 1279) 728 and he stated that the findings of the lower Court were based on sound reasoning and careful evaluation of the evidence of the parties and that they should not be disturbed by this Court. Counsel urged that this issue be also resolved in favour

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of the Respondent.

Counsel concluded his arguments by urging this Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.

The facts of this case are pretty straightforward. The Appellant is a customer of the Respondent Bank and the Respondent had over the years extended credit facilities to the Appellant on terms and conditions agreed to and accepted by the Appellant; documents evidencing such past dealings were tendered as Exhibits P2, P3, D1 to D5. The evidence led by the parties showed that the transaction leading up to the present case was the credit facilities of a term loan of N55 Million and overdraft of N40 Million extended to the Appellant by the Respondent Bank and the terms and conditions of which were contained in a letter dated the 8th of April, 2009 and which terms and conditions were unequivocally accepted by the Appellant; the letter was tendered by the Appellant as Exhibit P1 and by the Respondent as Exhibit D9. The term loan was stated to be a restructure of the existing exposure of the Appellant.
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It was stated in the letter that the term loan will attract a 0.25% facility fee

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and 0.75% management fee, both upfront, and that the loan will be liquidated by quarterly payments and from daily stock sales proceeds/rental income and it was for a tenure of twenty four months. It was also stated in the offer that the overdraft will attract a 0.25% facility fee and 0.75% management fee, both upfront, and that the overdraft will be liquidated by daily payments from sale of telecom products and it was for a tenure of twelve months. It was part of the terms of the offer that the Respondent Bank shall have a right of set off in respect of monies standing to the Appellant in other accounts with the Respondent Bank. The agreed security for the facilities, included, amongst other things, a legal mortgage over the property situate at No A1 Close FF Ndajika Close, Malali GRA Kaduna, the sum of N7 Million to be blocked in an interest yielding account, and a personal guarantee of the Chief Executive Officer of the Appellant. The Personal Guarantee and the Deed of Tripartite Legal Mortgage were Exhibits D20 and D21 at the trial. There was evidence that the Appellant made the security deposit of N7 Million in an interest yielding account.
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It was

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not in dispute that the Appellant drew down and took benefit of the credit facilities and that it failed to repay the facilities as agreed in the letter of offer. The complaint of the Appellant before the lower Court was that the Respondent Bank made illegal debits of charges and interest sums into its account, while the Respondent Bank counterclaimed for the outstanding balances on the credit facilities.  In resolving the issues presented for determination, the lower Court stated in the judgment thus:
“It is trite law that he who asserts must prove. It is for the plaintiff who asserts the existence of facts that has the burden to show or establish same.
The plaintiff vide the expert evidence of PW2 alleged that the Defendant illegally debited the account of the plaintiff with the Defendant as per Exhibits Pa(a) – P4(d) to the tune of N64M. Exhibit P16 is the expert evidence of PW2 wherein the plaintiff alleged that the Defendant failed to reckon or take into consideration the sum of N17M paid into the Plaintiff s account on the 31/8/2009. The Plaintiff also alleged in exhibit P15, P6 Column C 11 that the Defendant illegally removed

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or transfer the sum of N28M from the Plaintiff?s account on the 24/4/2009 without the Plaintiff s consent. In both instances what happened in respect of N17M was a reversal of entry on the account. See the case of Yesufu Vs ACB Ltd … where the Supreme Court held that ‘where a bank reverses a credit entry of certain sum in the current account of its customer by debiting the account with the same sum, such reversal in practical terms means that the bank has liquidated its liability as a debtor to the customer.
As to the sum of N28M allegedly removed or transferred from the Plaintiff?s account, the transfer is reflected in Exhibit P4(d) against 24/04/2009 as FT IFO ZAIN B 10 SULEICOMS (N28,000,000.00). The FT IFO ZAIN has been interpreted to mean Funds Transfer to Zain at the instance of Suleiko (Plaintiff) N28M.  Surprisingly or curiously the Plaintiff is said to have denied ever giving the order of transfer and or being aware of the transfer of the funds to Zain. The total sum of N28M and N17M constitute part of the monies either illegally debited from the Plaintiff?s account or transferred and being demanded for by the

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Plaintiff- Exhibit P16 is replete with such instances which the Plaintiff considered as expert evidence to be relied upon as proof of its claim by the Court.
The plaintiff?s CEO/GM as PW1, in his evidence in chief and under cross examination by the learned Counsel to the Defendant admitted being in arrears in the repayment of the plaintiff?s debts. Exhibits P9, P10, P13, D4, D11, D12 and D22 are some of the correspondences exchanged between the parties on the issue of the plaintiff s indebtedness to the Defendant. Exhibit P1 and D21 … make provisions for the payment of interest and specifically the payment of the interest and principal sum as at the time it was due for payment.
?In both Exhibits P1 and D21 the parties agreed to the payment of not only simple interest but also agreed on the payment of compound interest where and when there is excess over the approved limit or any unliquidated expired facility same shall attract an interest at a default rate of 39% per annum as well as 1% monthly flat fee on the outstanding sum.
The learned Counsel to the Plaintiff contended that the Defendant is not entitled to

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charge compound interest and furthermore even if the Defendant could charge compound interest it has no right to increase the rate beyond 39% per annum. Both Exhibits P1 and D21 specifically provide for the upward review of the interest and once notified on the Plaintiff same becomes binding between the parties.
The Plaintiff was notified of the upward review of the interest rates by several letters of the Defendant addressed to it such as Exhibits P9, D4, D8, D11, D12 & D13?
The Plaintiff having willingly entered into the agreement or contract with the Defendant in Exhibits P1 and D21 is bound by its terms and conditions regarding the payment of interest including compound interest and default interest as stipulated and communicated by the Defendant to it from time to time …” (see Pages 418 to 421 of the records)

Now, it is elementary that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a

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reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other – Idakwo Vs Nigerian Army (2004) 2 NWLR (Pt 857) 249, Oyekola Vs Ajibade (2004) 17 NWLR (Pt 902) 356, Imoh Vs Onanuga (2013) 15 NWLR (Pt 1376) 139 and Al-Mustapha Vs State (2013) 17 NWLR (Pt 1383) 350. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on the side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Ajibulu Vs Ajayi (2014) 2 NWLR (Pt. 1392) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt.1392) 564.
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A decision of a Court is said to be perverse (a) when it runs counter to the

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evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt. 1270) 217. It is obvious from the above excerpt of the judgment that the lower Court indeed carried out an evaluation of the evidence led by the parties on the issue of illegal charges and debits and it stated clearly why it preferred the case of the Respondent over that of the Appellant. The question is whether the Appellant showed that the findings of the lower Court and the decision reached thereon were perverse.
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It is trite that the starting point for determining the correctness of the judgment of a lower Court in an action commenced by pleadings is the pleadings of the parties. The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the

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written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Aminu Vs Hassan (2014) 5 NWLR (Pt. 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt. 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt. 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt. 1406) 396 at 424G.

The complaints of the Appellant on alleged illegal deductions and charges debited into its statement of account by the Respondent Bank were both generic and specific. The Appellant alleged that the Respondent Bank made unauthorized and illegal debits outside the terms of the agreement for the credit facilities and which totaled N65 Million as at end of September, 2009. The Appellant alleged

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that the Respondent Bank imposed a default interest rate of 45% instead of the agreed 39% rate with effect from 1st of June, 2009 and that the Respondent Bank applied the funds in its deposit account, N7,365,054.80, towards reducing the debit balance in the overdraft account in October, 2009 without any prior information to it. The Respondent Bank categorically denied the allegations. The onus to prove the allegations was on the Appellant assertion – Union Bank of Nigeria Plc Vs Emole (2001) 18 NWLR (Pt.745) 501.

In proof of the allegations, the Appellant called two witnesses, the first and second plaintiff witnesses. The first plaintiff witness was the Managing Director and Chief Executive Officer of the Appellant and the second witness was a Mr. Elijah Akintoye, who the Appellant put forward as a financial, expert. The second plaintiff witness testified that he was commissioned in June 2010 by the Appellant to assess and verify its loan account with the Respondent Bank and that he carried out the task based on the documents supplied to him by the Appellant and that the outcome was a report tendered as Exhibit P16. The law is that a trial Court is not

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bound to accept the testimony of an expert as the gospel truth and that such evidence merely forms part of the body of evidence that a trail Court should evaluate in making its findings and in coming to decision – Mgboko Vs State (1972) 2 SC 723, Elf (Nig) Ltd Vs Sillo (1994) 6 NWLR (Pt. 350) 258 and Sowemimo Vs State (2004) 11 NWLR (Pt 885) 515.

Reading through the above reproduced excerpt of the judgment, it is obvious that the lower Court considered and evaluated the report, Exhibit P16, and it found it unworthy of being accorded any probative value. This finding of the lower Court was not appealed against and it has not been challenged in this appeal. It is settled that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties – Amale Vs Sokoto Local Government (2012) 5 NWLR (Pt. 1292) 181, SCC (Nigeria) Ltd Vs Anya (2012) 9 NWLR (Pt. 1305) 213, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt.1342) 503, Nwaogu Vs Atuma (2013) 11 NWLR (Pt. 1364) 117. An appellate Court cannot re-examine and/or disturb such a finding of fact- Alakija Vs Abdulai (1998) 6 NWLR (Pt 552) 1 and

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Opara Vs Dowel Schlumberger (Nigeria) Ltd (2006) 15 NWLR (Pt.1002) 342.

This Court must say that it agrees with the treatment meted to the report of the second plaintiff witness, Exhibit P16 by the lower Court for two reasons. Firstly, the findings in the report were contrary to the averments in the pleadings of the Appellant. While the Appellant pleaded that the unauthorized and illegal debits in its account totaled N65 Million, the report stated that it was over N94 Million. Secondly, the records of appeal show that the Appellant commenced this action in February, 2010 and that the Respondent Bank filed its response and counterclaim on the 9th of March, 2010 and the reply and defence to counterclaim was filed on the 28th of April, 2010. The records of appeal show that proceedings in this matter commenced in the lower Court on the 9th of March, 2010 and trial commenced on the 11th of June, 2010.
The second plaintiff witness testified that he was commissioned by the Appellant in June, 2010 to carry out the exercise of verification of its account and to prepare a report. The report, Exhibit P16, was dated the 28th of October, 2010. The Appellant

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commissioned the preparation of the report after the close of pleadings and the commencement of trial in the lower Court. The second plaintiff witness testified that he prepared the report on the basis of the documents given to him by the Appellant and that he made no contact with the Respondent Bank. It is obvious that the report was prepared specifically for the case at hand on the direction of the Appellant. Such a report is not deserving of probative value – Waziri Vs State (1997) 3 NWLR (Pt.496) 698, All Nigeria Peoples Party Vs Usman (2008) 12 NWLR (Pt 1100) 1.

The first plaintiff witness testified in line with the case of the Appellant on the pleadings and he gave evidence on the alleged imposed default interest rate of 45% instead of the agreed 39% with effect from 1st of June, 2009 and on the application of the funds in its deposit account, N7,365,054.80, towards reducing the debit balance in the overdraft account in October, 2009 without any prior information to it. Now, as stated earlier, the terms and conditions governing the credit facilities were set out in the letter of offer of the facilities, Exhibit P1 and Exhibit D9 and in the Deed

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of Tripartite Legal Mortgage, Exhibit D21.

It is settled law that parties are bound by the contract they voluntarily enter into and cannot act outside the terms and conditions contained in the contract and neither of the parties to a contract can alter or read into a written agreement a term which is not embodied in it – African International Bank Ltd Vs Integrated Dimensional System Ltd (2012) 17 NWLR (Pt. 1328) 1, Lagos State Government Vs Toluwase (2013) 1 NWLR (Pt. 1336) 555. A Court too must treat as sacrosanct the terms of an agreement freely entered into by the parties as parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful and if any question should arise with regard to the contract, the terms in any document which constitute the contra are the invariable guide to its interpretation. It is not the business of the Court to rewrite a contract for the parties and it should thus not add to or subtract from or import any provision into the contract – Omega Bank (Nig) Plc Vs O.B.C. Ltd (2005) 8 NWLR (Pt. 928) 547, BFI Group Corporation Vs Bureau of Public Enterprises (2012) 18 NWLR (Pt. 1332) 209, Daspan Vs

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Mangu Local Government Council (2013) 2 NWLR (Pt 1338) 203, Afrilec Ltd Vs Lee (2013) 6 NWLR (Pt.1349) 1.

Counsel to the Appellant contended that the default interest rate of 39% agreed by the parties was static and not subject to change from time to time and that the 45% default interest rate imposed by the Respondent Bank with effect from 1st of June, 2009 was illegal. The lower Court disagreed with Counsel and it stated in the judgment that both “Exhibits P1 and D21 specifically provide for the upward review of the interest and once notified on the Plaintiff same becomes binding between the parties. The Plaintiff was notified of the upward review of the interest rates by several letters of the Defendant addressed to it such as Exhibits P9, D4, D8, D11, D12 & D13”.

The interest clause on the term loan, as stated in the letter, Exhibit P1, read thus:
“The interest rate for the facility shall be 23% per annum, which shall be subject to review from time to time in line with the prevailing money market condition. Any change in pricing of the facility notified by the Bank to customer/company shall be binding on the parties. However,

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any excess over the approved limit or any unliquidated expired facility shall attract an interest at a default rate of 39% per annum as well as a 1% monthly flat fee on the outstanding amount.”

While the interest fate clause on the overdraft facility read thus:
“The interest rate for the facility shall be 23% per annum, which shall be subject to review from time to time in line with the prevailing money market condition. Any change in pricing of the facility notified by the Bank to customer/company shall be binding on the parties. However, any excess over the approved limit or any unliquidated expired facility shall attract an interest at a default rate of 39% per annum as well as a 1% monthly flat fee on the outstanding amount.”

Clause 1 of the Tripartite Legal Mortgage, Exhibit D21, read thus:
“The Mortgagor and Borrower hereby covenants with the Bank to pay to the Bank on demand the sums secured by this deed and any or all other monies whatsoever owing to the Bank at any time for which the Mortgagor and Burrower may be liable either solely or jointly with any other person whether as principal or surety at the rate of interest from time

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to time stipulated by the Bank and payable monthly or at any such other rates and such other times as the Bank may from time to time determine PROVIDED ALWAYS that if the interest or any other sum payable under this deed shall remain unpaid for 14 days after the day on which the sum ought to have been paid, be added for all purposes to the balance of moneys hereby secured and shall thenceforth bear interest payable at the rate and on the days aforesaid and all covenants and provisos contained in these presents and rules of law or equity in relation to interest on the said balance shall equally apply to the interests on such arrears.?

It is settled that in interpreting a document, the document must be read as a whole, and not parts in isolation, and that the different parts of the document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different parts – Unilife Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ 116, Mbani vs Bosi (2006) 11 NWLR (Pt 991) 400, Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) 1 SCNJ 375, Agbareh Vs Mimra (2008) 2 NWLR (Pt. 1071) 378, Nigerian Army Vs

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Aminu-Kano (2010) 5 NWLR (Pt. 1188) 429. This principle also applies where the document is part of a series of documents on the same transaction – the unreported decision of the Court of Appeal, Kaduna in Appeal No CA/K/46/2014 – Ashaka Cement Plc Vs Asharatul Mubashshurun Investment Ltd delivered on the 28th of January, 2016.

A holistic reading of the interest rate clauses seemingly supports the position of the lower Court and 45% default rate fee applied by the Respondent Bank was thus not illegal. Moreover, even if this Court were to agree with Counsel that the Respondent Bank ought not to have increased the default fee rate from 39% to 45%, this does not help the case of the Appellant because no evidence was led by the first plaintiff witness showing the figures representing the interest complained about which were debited into the statements of accounts, Exhibits P4 to P4(d). This Court would have had to search through the statements of account and guess therefrom the figures in question. It is the obligation of a party to connect his case to the documentary evidence led in support of the case and it is improper for a party to dump a bundle of

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documents before a trial Court without credible evidence showing the portion of the document relevant to the case being made out. It is not the duty of the Court to search through documentary evidence in chambers with the view of connecting same to the case of a party; it is a task that ought to have been done in open Court in the course of trial. In Egba Vs Appah (2005) 10 NWLR (Pt 934) 464 the Court of Appeal stated that documents are not objects that can be cross-examined and that oral evidence must be given to explain their essence. In Alao Vs Akano (2005) 11 NWLR (Pt 935) 160, the Supreme Court said that documents admitted in evidence, no matter how useful they could be, would not be of much assistance to the Court in the absence of admissible oral evidence by person who can explain its purport. See also Abi Vs Central Bank of Nigeria (2012) 3 NWLR (Pt 1286) 1, Tunji Vs Bamidele (2012) 12 NWLR (Pt 1315) 477, Ucha Vs Elechi (2012) 13 NWLR (Pt 1317) 330.

The complaint of the Appellant on the application of the funds in its deposit account, N7,365,054.80, towards reducing the debit balance in the overdraft account in October, 2009 without any prior

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information to it completely overlooked the right of set off that the terms of the loan agreement gave to the Respondent Bank. The relevant clause read thus:
“The Borrower covenants that in addition to any general lien or similar right to which Access Bank as a banker may be entitled by law, Access Bank may at anytime and without notice to the Borrower combine or consolidate all or any of the Borrower’s accounts with any liabilities to Access Bank and set off or transfer any sum or sums standing to the credit of anyone or more of such accounts in or towards satisfaction of the Borrower’s liabilities to Access Bank or any other respect whether such liabilities be actual or contingent, primary or collateral and several or joint.”
?
It is apparent from a literal interpretation of the wordings of this clause that the Respondent Bank acted within its rights when it applied the funds in the deposit account of the Appellant totalling N7,365,054.80 towards reducing the debit balance in the overdraft account without any prior information to the Appellant. Moreover, the funds were deposited with the Respondent Bank as part of the agreed collateral to secure the

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facilities given to the Appellant.

In his arguments in this appeal, Counsel to the Appellant referred to a sum N466,666.67 which he stated was debited in the account of the Appellant as annual facility fee and asserted that it was an unauthorized deduction on the ground that there was no provision for such fee in Exhibit P1 and he complained that the lower Court did not also make any finding on the sum of N466,666.67 debit. Reading through the case of the Appellant on the pleadings and in the testimony of the first plaintiff witness, nowhere therein was any assertion made in respect of this alleged sum of N466,666.67 said to have been debited as annual facility fee. Counsel to the Appellant did not also make any submission in respect of the sum in his final written address. The lower Court thus had no business making a finding on it and this Court too cannot consider the complaint. It is trite that a party is not allowed to maintain on appeal a different case from that pursued at the trial Court; he must be consistent in stating his case – Oshoboia Vs Amida (2009) 18 NWLR (Pt.1172) 188, Njaba Local Government Council Vs Chigozie (2010) 16 NWLR (Pt 1218)

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166 and Ebia Construction Ltd Vs Costain (West Africa) Plc (2011) 6 NWLR (Pt 1242) 110.
Where an issue was not raised, canvassed or pronounced upon by a lower Court, an appellate Court has no business entertaining the issue.

Counsel to the Appellant also referred to the cheque for N17 Million which the first plaintiff witness stated was paid into the Appellant’s account and that the sum was never credited into the account nor was the cheque returned to him, though same was reflected in the statement of account of the Appellant as having been returned unpaid. The evidence before the lower Court was that when the cheque was not honored, the Respondent Bank reversed the entry made in respect of the cheque in the account of the Appellant. The lower Court found that the reversal of entry made by the Respondent Bank was in order. Counsel argued that apart from reversing the entry, the Respondent ought to have led evidence to explain why it did not return the cheque to the Appellant and that failing so, the lower Court should have held that the said sum of N17 Million was wrongly debited. With respect to Counsel, his argument is self

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serving and unrealistic. The onus was on the Appellant alleging non-credit of the value of the cheque into its account to show that the Respondent received credit for the value of the cheque from the banker of the issuer. It was not the responsibility of the Respondent to prove that it did not receive credit for the cheque and it was sufficient for the Respondent to inform the Appellant of the return of the cheque. Having failed to lead any such evidence, there is no basis for the arguments of Counsel to the Appellant.

Counsel to the Appellant also stated that the lower Court was wrong to have held that the Respondent Bank had the right to charge compound interest. Counsel obviously, again, overlooked the meaning and effect of the words contained in Clause 1 of the Deed of Tripartite Legal Mortgage, Exhibit D21. The clause empowered the Respondent Bank to charge compound interest.

The position of the lower Court on the claims of the Appellant was supported by the terms and conditions of the credit facilities extended to the Appellant by the Respondent Bank as contained in Exhibits P1, D9 and D21. This Court cannot fault the decision of the

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lower Court that the Appellant did not lead credible to prove the allegations of unauthorized debits in its account against the Respondent Bank. The first issue for determination is resolved against the Appellant.

On the second issue for determination – whether the Respondent Bank was entitled to succeed on its counterclaim – Counsel to the Appellant put forward two preliminary arguments on lack of jurisdiction by the lower Court to entertain the counterclaim; (i) that there was a tripartite legal mortgage executed between the parties with the Managing Director of the Appellant being the third party and that there were English authorities which say that no action can be tried along with any action of a mortgagor challenging the mortgage transaction between the parties; (ii) that the tenure of the term loan of N55 Million was yet to expire as at the date the counterclaim was filed, thus rendering the action premature. These two arguments, with respect to Counsel were completely misconceived. The case of the Appellant before the lower Court was not a challenge to any mortgage transaction or a contest on the enforcement of the deed of legal mortgage. The

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Appellant conceded that it was indebted on the credit facilities the mortgage was used to secure and it was only contesting the level of indebtedness, and the counterclaim was for a determination of the indebtedness of the Appellant. Further, the Counsel closed his eyes to the provision in the terms and conditions of the facilities contained in Exhibits P1 and D9 on the consequences of default in paying the due installments on the facilities. The clause stated that where such default occurs, the facilities shall become due for repayment immediately and there was no contest between the parties that the Appellant defaulted in making the agreed periodic payments on the facilities. The counterclaim was not premature and the lower Court possessed jurisdiction to hear and entertain it.
?
On the merits of the counterclaim, the established fact in the evidence of both parties was that the term loan of N35 Million extended to the Appellant by the Respondent Bank vide the letter of offer dated 8th of March, 2008 was no longer in existence as it was part of the exposure of the Appellant to the Respondent Bank which was restructured into the term loan of N55

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Million. The Respondent Bank could thus not maintain any viable claim on the N35 Million term loan. With respect to the claims on the term loan of N55 Million and overdraft facility of N40 Million, it was not in contest that the Appellant took benefit of the facilities and refused to repay them and was owing the Respondent Bank in respect thereof. It was the case of the Respondent that it kept needed records of the term loan enjoyed by the Appellant in separate loan repayment schedules while the records of the overdraft facility were kept in the current account of the Appellant and that by the terms of the offer the Appellant was obliged to make quarterly repayments of principal and interests on N55 Million term loan and that where the repayments fall due and are not paid, they are debited into the current account of the Appellant and credited into the loan accounts. This was not contested by the Appellant. The statements of the account were tendered as part of Exhibits P4 to P4(d). The Respondent Bank tendered several letters as Exhibits D8, D11, D12, D13, D14, D17 and D18 showing that it periodically communicated the account balances to the Appellant and

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requested for payments on the account. The first plaintiff witness admitted receiving the letters and the letters were in fact tendered through him under cross-examination.

The Respondent Bank also tendered through the first plaintiff witness the responses of the Appellant to the letters and these were Exhibits D10, D15 and D16. In the responses, the Appellant did not protest the stated account balances, but rather explained the reasons for not offsetting the debt and sought for a reduction of the interest rates and for a restructuring of the facilities to enable it commence making of meaningful payments. The Courts have stated that where a bank makes demands for settlement of debt by letters and the amount of the debt is contained in each letter and the debtor does not query the respective figures written in the letters as the overall debt due but rather writes letters explaining the reasons for non-payment of the debt, the debtor will be deemed to have impliedly admitted the quoted figures as the amount of debt due – I.O.M. Nwoye & Sons Company Ltd Vs Co-operative and Commerce Bank (Nig) Plc (1993) 8 NWLR (Pt 310) 210, Nagebu Company

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Nigeria Ltd Vs Unity Bank Plc (2014) 7 NWLR (Pt.1405) 42.

Similarly, there was evidence that the Appellant received its periodic statement of account from the Respondent Bank from the time of the grant of the credit facilities and it did not protest the balances in the account until December 2009 when it wrote the letter, Exhibit P11, and it is obvious from the contents of the letter that the protest was made because the Respondent refused the request for a restructure and an increase in the facilities and for a review of the default interest rates. This signaled the commencement of the hostilities that led to the present case. It is trite that where the subject matter of the statement of account is a loan or overdraft facility and the entries in the statement of account consist of accrued interest on the facility and there is evidence that the debtor was in constant receipt of the statement of account and did not protest the interest charged on the account, the debtor will be deemed to have admitted the debit balance in the account. In Barclays Bank DCO Vs Hassan (1961) All NLR 836, it was held thus:
“A party will be deemed to have accepted

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the rate at which interest on a bank overdraft was calculated if he received from the bank periodic statements of account in which the interest charged was shown as a debit and he did not dispute the account as shown in the statements.”
This statement was quoted with approval and followed by this Court in Union Bank of Nigeria Plc Vs Salami (1998) 3 NWLR (Pt. 543) 538 and by the Supreme Court in Thor Ltd Vs First City Monument Bank Ltd (2005) 14 NWLR (Pt. 946) 696.

In the light of these, this Court cannot fault the finding of the lower Court that the Respondent Bank was entitled to judgment in respect of the term loan of N55 Million and overdraft facility of N40 Million. It is, however, the view of this Court that the application of the default interest rate on the facilities should have ceased from the date of commencement of the matter in the lower Court because the Appellant cannot justifiably be said to be in default when there was a contest over the actual amount due. Similarly, the agreed interest rates on the loan must also cease to apply from the date judgment was entered in the lower Court and it is the Court rate that became applicable from

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that date. The second issue for determination is thus resolved partly in favour of the Appellant and partly in favour of the Respondent.

In conclusion, this Court finds some merits in the appeal and it is hereby allowed in part. 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 is hereby set aside in part and it is affirmed in part. This Court hereby orders as follows:
i. The decision of the lower Court dismissing the claims of the Appellant in their entirety is hereby affirmed.
ii. The decision of the lower Court granting Respondent’s claim for the sum of N105,234,063.45 being the outstanding debit balance in the Appellant’s current account as money payable by the Appellant to the Respondent for money lent by the Respondent to the Appellant as its bankers and at its request, and for interest agreed to be paid on the money due as at the close of business on the 3rd of March, 2010 is hereby affirmed.
iii. The decision of the lower Court granting the Respondent’s claim for interest at rate of 22% per annum over the approved overdraft of N40

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Million and 45% per annum on the excess over the approved limit from the 4th day of March, 2010 until payment or judgment is hereby set aside. In its stead the Respondent is awarded interest on the said sum of N105,234,063.45 at the rate of 22% per annum from the 3rd of March, 2010 until the date judgment was entered in the lower Court, i.e. the 15th of March, 2013, and there after at the rate of 10% per annum until liquidation.
iv. The decision of the lower Court granting the Respondent’s claim for the sum of N12,737,922.43 being the outstanding debit balance on the N35 Million term loan granted to the Appellant is hereby set aside.
v. The decision of the lower Court granting the Respondent’s claim for interest on the sum of N12,737,922.43 at rate of 22% per annum from March 2010 until payment of judgment is also hereby set aside.
vi. The decision of the lower Court granting the Respondent’s claim for the sum of N34,602,910.96 being the outstanding debit balance on the N55 Million term loan granted to the Appellant is hereby affirmed.
vii. The decision of the lower Court granting the Respondent’s claim for interest on the sum of

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N34,602,91,0.96 at rate of 22% per annum from March 2010 until payment or judgment and thereafter is hereby set aside and in its stead the Respondent is awarded interest on the said sum of 22% per annum from March 2010 until the date judgment was entered in the lower Court, i.e. the 15th of March, 2013, and thereafter at the rate of 10% per annum until liquidation.

The parties shall bear their respective costs in this appeal. These shall be the orders of this Court.

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Other Citations: (2016)LCN/8711(CA)