ISAAC UBA OGUGUA v. DIAMOND BANK PLC
(2019)LCN/12682(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of February, 2019
CA/A/331/2016
RATIO
COMMERCIAL TRANSACTION: WITHDRAWAL OF CHEQUE
“It simply allows the customer to overdraw the account to the limit of the amount granted as overdraft facility. Exhibits D6, D7 and D8 are the cheques by which the appellant utilised the overdraft facility of 3 million naira. See Ishola V Societe Generale Bank Nig. Ltd (1997) LPELR- 1547(SC) in which the Supreme Court held that – ‘Again, with respect, the principle of law is long settled that if a customer draws a cheque for a sum in excess of the amount standing to the credit of his current account, it is nothing but a request for a loan and, if the cheque is honoured, the customer has borrowed the money by way of overdraft from the bank. See Cuthbert v. Robarts Lubbock and Co. (1909) 2 Ch. 226 at 233 and A.CB. Ltd. v. Egbunike and Anor (1988) 4 NWLR (Pt. 88) 350 at 365.” See also Afribank Nig. PLC V Onyima & Anor (2004) 2 NWLR (pt. 858) 654 (CA).” PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
ISAAC UBA OGUGUA Appellant(s)
AND
DIAMOND BANK PLC Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment):
This appeal No. CA/A/331/2016 was commenced on 10-3-2016 when the appellant herein filed a notice of appeal against the judgment of the High Court of Kogi State at Lokoja delivered on 29-2-2016 in Suit No. KGS/KHC/23/2010 by R.O. Olorunfemi J. The notice of appeal contains 2 grounds of appeal.
Both sides filed, exchanged and adopted their respective briefs as follows- appellant’s brief, respondent’s brief and appellant’s reply brief.
The appellant’s brief raised two issues for determination as follows-
1. Whether there is evidence from the Respondents’ Exbt. D9, there is any such posting or crediting of the sum of N3,000,000.00 to justify the relief of the sum of N2,863,914.39, (‘both capital and interest’) being the unpaid balance remaining from the N3,000,000.00 facility granted the appellant, as claimed by the Respondent in their Amended Counter-claim? (From Ground 1 – Omnibus Ground)
2. Whether the Respondent was able to establish on the preponderance of evidence that it actually granted a facility of N3,000,000.00 to the Appellant? (From Ground 2)
The respondent’s brief also raised two issues for determination as follows-
1. Whether, Exhibit D9 Vis-a-vis Exhibits D1, D2, D3, D4, D5, D6, D7 & D8 are not contemporaneous documents which the Respondent had used for establishing or proving the counter- claim at the lower Court i.e. the trial High Court of justice to the extent that it is not only Exhibit D9 alone that was considered by the lower court in establishing or proving the Respondent counter-claim.
2. Whether the Respondent was able to establish on the preponderance of evidence that it actually granted a credit facility of N3,000,000.00 to the Appellant
I will determine this appeal on the basis of the issues raised for determination in the appellant?s brief.
I will determine them together.
I have carefully read and considered the arguments of both sides under these two issues.
The part of the judgment of the trial Court complained against under these issues reads thusly- Has the Claimant/defendant in this Counterclaim established his case on preponderance of evidence to entitle him to the reliefs claimed?
Has the Defendant/Counterclaimant proved his Counterclaim against the Defendant in his counterclaim?
The Claimant has gleaned from his reliefs sought for an order of this Court restraining the defendant from carrying out purported sale of a bungalow at No. 81 Kajola quarters Kabba pending the determination of his indebtedness to the defendant.
And also to declare the purported sales as illegal. He also prays for an order of this Court directing the defendant to liquidate whatever his indebtedness to the Defendant if any with the sum of N400,000.00 which he said is the overcharged interest in his earlier credit facility which he took from the Defendant which he has since liquidated.
The Claimant led evidence and tendered Exhibits A1, A2 and A3 in evidence respectively. The Claimant denied the grant of the sum of N3,000,000.00 credit facility granted him by the defendant and also denied owing the defendant the sum N2,863,914 standing against his account as the debit balance owed to the Defendant.
The Defendant/Counterclaimant had upon the request of the Claimant/Defendant in the Counterclaim vide Exhibit D3 requested for Stock Finance Facility of Three Million Naira (N3,000,000.00). in response to the request the Defendant/Counter Claimant in the Counterclaim vide Exhibit D2 offered the Claimant, the requested sum of Stock Finance Facility which the Claimant accepted and witnessed by his wife one Mrs. Uchenna Ogugua who also appended her signature on the said document. See Exhibit D2. Both parties agreed that the Claimant shall use his house at No. 81 Kajola Quarters, Kabba as collateral for the said Stock Finance Facility of N3,000,000.00 offered to the Claimant and accepted by him. The said document of title to the said property was tendered by the defendant/Claimant in the Counterclaim and admitted in evidence as Exhibit D1. The Claimant in his letter for the request of the said facility stated therein. See Exhibit D3 Evidence was led by the Defendant/Claimant in the Counterclaim witness that the said title document to the Claimant’s house in Kabba was used as collateral for stock Facility of N2,000,000.00 earlier on granted the Claimant by the Defendant which the Claimant had liquidated before requesting for the N3,000,000.00 Stock Facility in issue from the Defendant.
The documentary evidence of the Defendant was supported by the oral evidence of the witness to the Defendant/Counterclaimant and was never challenged by the Claimant. It remained in contradicted and credible.
The implication of Exhibit D1 is that where the Claimant defaulted in payment of the credit facility granted him by the Defendant the collaterised property will be disposed off to offset the indebtedness of the Claimant.
The Claimant did not lead evidence to show that the defendant have put in place the machinery to sell the collaterised property belonging to him at Kabba neither has the Defendant sold the bungalow belonging to the Claimant in Kabba to liquidate the debt of N1,698,652.84 arbitrary or inflated owed the Defendant. No deed of conveyance have been made in support of the sale of the said house.
The Defendant where the indebtedness of the Claimant is established can exercise his power of sale bonafide for the purpose of realizing his debt and without collusion with the purchaser, the Court will not interfere even though the price is so low as in itself be evidence of fraud. See the case of Alhaji Kayode Salami v Wema Bank Nig. Plc and Others 2009 LPELR 8873 (CA).
The Claimant is only crying wolves where there are none. His claim for an order of this Court restraining the Defendant from carrying out purported sale of his property in Kabba which has been made a collateral for a Credit facility from the Bank is not well rooted and cannot be supported by any scintilla of evidence oral or documentary.
The Claimant have not succeeded in establishing an excess sum of Four Hundred Thousand Naira (N400,000.00) which he claimed to have paid over and above the Stock Facility of N2,000,000.00 and granted him by the Defendant in interest and over charges inclusive which he prayed for an order of this Court to the Defendant to use in liquidating whatever indebtedness he has with the Defendant. The Claimant did not proved oral or documentary evidence to prove his claim of N400,000.00 an excess of the N2,000,000.00 Stock Finance Credit he was given first by the Defendant.
The claimant have not proved that the Defendant have on the request provided him inaccurate and falsified statement of account. In the absence of any challenge by the Claimant of Exhibit D9 which is his statement of account tendered and admitted in evidence and in the absence of any written complaint by the Claimant against the Defendant supported by oral evidence of the Claimant the declaratory order the Claimant is seeking cannot be made against the Defendant.
On the whole the claim of the Claimant lacks merits and it is hereby dismissed. The Defendant/Counterclaimant defence to the Claimant’s claim is unassailable, through credible, cogent and convincing.
The Claimant’s claim is accordingly dismissed.
On the Counterclaim, the Defendant through oral and documentary evidence have established her Counterclaim against the Defendant in the counterclaim. Exhibits D1 – D9 vis-a-vis the oral evidence of the witness to the Counterclaimant have successfully established the counterclaim against the Defendant in the counterclaim. It has been established by cogent and credible evidence that the Defendant to the counterclaim vide Exhibit D3 requested for a Stock Finance Facility of N3,000,000.00 and was offered the said Stock Facility by the Counterclaimant vide Exhibit D2 with Exhibit D1 belonging to the Defendant to the counterclaimant as collateral. Shortly after the grant of the said Facility the Defendant in the Counter claim made withdrawals of various sums. See Exhibits D6, D7 and D8; they were signed cheques by the Defendant. Exhibit D9 is the statement of account of the Defendant covering the period, he took the stock finance facility of N3,000,000.00 and the transactions he made thereafter.
Exhibit A3 which the Defendant tendered and was admitted in evidence is not authentic Statement of Account of the Defendant as its authorship is doubtful as it was not signed by any of the staffers of the Counterclaimant and cannot be a march to Exhibit D9 tendered by the counterclaimant and admitted in evidence as the true statement of account of the Defendant. The defendant submitted same to a private Auditor for auditing, as he claimed his account has been falsified and outrageous interest and charges and unauthorised withdrawal made by the counterclaimant. Mr. Nwankwo the independent auditor the defendant hired from Onitsha was not called by the defendant to prove the assertion of fraud made against the defendant. Allegation of fraud against the Counterclaimant is criminal and must be proved beyond reasonable doubt even where the assertion is made in a civil proceeding; this burden was not discharged by the Defendant. See Taofeek Adeleke and Anor. V. The State (2011) LPELR 3600 CA.
Exhibits A2 and A3 in the absence of any oral evidence in support of those exhibits are mere papers that deserve to be shred and thrown in to the dustbin and cannot and will never form a formidable defence for the Defendant in this Counterclaim. The defendant did not call any evidence to prove falsification of his account, excessive charges and interest on the account and an authorized deduction from his account with the Counterclaimant. There is no evidence whatsoever put forward by the Defendant to show that he did not apply and got the Stock Finance Credit from the Counterclaimant. The signature in Exhibits D3, D6, D7 and D8 are the same and the defendant did not by oral evidence or in his deposition on Oath denied the signature on those exhibits.
The Counterclaimant have succeeded in proving his Counterclaim against the defendant. The Counterclaimant?s oral and documentary evidence are overwhelming credible and unchallenged and I cannot but act on it. See State v. Usman (2004) LPEFR 7438 CA.
The Counterclaim of the Counterclaimant succeeds in its entirety. The defendant in the Counterclaim defence fails and cannot stand on the path of the well earned success of the Counterclaimant case against the defendant.?
It is noteworthy that there is no ground of this appeal complaining against any of the specific findings of facts made by the trial Court in the above reproduced part of its judgment, particularly the specific findings of facts that the documentary evidence of the respondent is supported by the testimony of its witness and was never challenged by the appellant and remained uncontradicted and credible, that the appellant failed to prove that in repaying the stock facility of 2 million naira first granted him by the respondent, he made an excess payment of interest and over charges of 400 thousand Naira, that the appellant did not challenge or complain against Exhibit D9, the statement of his account with the respondent tendered in evidence by the respondent, that the appellant did not prove that the respondent provided him with inaccurate and falsified statement of account, that shortly after the appellant was granted a second stock credit facility of 3 million naira, he made withdrawals of various sums of money by means of cheques, namely Exhibit D6, D7 and D8 signed by him and thereby utilized the stock facility of 3 million naira, that Exhibit D9 is the statement of account of the appellant covering the period he took the facility of 3 million naira and the transactions he made thereafter, that Exhibit D3, the statement of account tendered by the appellant is not an authentic statement of account of the appellant with the respondent, that its authorship is doubtful as it was not signed by any of the respondent’s staff, that it was this Exhibit D3 that the appellant said he gave to an independent auditor to audit to show that his account with the respondent was falsified and outrageous interest charges and unauthorized withdrawals made by the respondent, that the appellant did not call the said independent auditor to testify as witness to prove the fraud he alleged against the respondent, that the appellant did not call any evidence to prove the falsification of the account, excessive charges and unauthorised deductions from the account, that in the absence of any evidence to prove the assertions in Exhibits A2 (report of excess bank charges by respondent dated 18-11-2009) and A3 (appellant’s statement of account dated 1-3-2007) are of no probative value, that the signatures in Exhibits D3 (the appellant’s request for the stock credit finance facility of three million naira), D6, D7 and D8 (the cheques issued by him to withdraw various sums of money after the said request was granted by the respondent) are the same and the appellant did not deny the signatures.
The only two grounds of this appeal state as follows-. That the decision of the learned trial Judge in this case is against the weight of evidence.
2. The learned trial Judge erred in law when he granted judgment to the respondent for their reliefs in their counter-claim when there is no evidence that the defendant/respondent, as a Bank credited, posted and or in any way paid into the appellant’s Bank Account 102000000440 (1002000000440) from 22/1/2008 to 28/2/2010, being the claimant/appellant’s Statement of Account with the respondent and which was tendered in evidence.
Particulars of error in law
i. It is now trite law that a defendant who files a counter-claim in the same manner and to the same extent a plaintiff does in the main claim or suit.
ii. It is also settled law that every decision of a Court must be based on the factual evidence placed before the Court in the case
iii. Where, as in the instant case, the respondent which is a Bank claims or alleges a grant to the appellant of the sum of N3,000,000.00 through the appellant’s Account No. 102000000440 (1002000000440) with the Bank, the least that is expected of the Bank is to show or exhibit the appellant?s Statement of Account (102000000440) (1002000000440) from 22/1/2008 to 28/2/2010 to attest to such entry of such credit facility of N3,000,000.00 especially so where the appellant denies that fact.
iv. The onus of proof is on him who alleges
v. The respondent in this case tendered Exbt. D1 to D9, none of these documents shows where the respondent credited, posted or any way put into the appellant?s said account the sum of N3,000,000.00.
vi. It is normal banking practice to credit an account before making any debit or deductions, if any but there must be evidence of the lodging of such credit facility into the account before any deductions to which the bank is entitled. Such credit and deduction must be shown clearly in the Statement of Account.
None of these grounds challenge or complain against any of the above specific findings of facts. The omnibus ground of appeal is not a valid ground of appeal against the specific findings of facts of the trial Court. As held by the Supreme Court in Akinlagun & Ors v Oshoboja & Anor (2006) 5 SC (Pt. 11) 100, an omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact.” In Osolu v Osolu & Ors (2003) 6 SC (Pt. 1) 1 the apex Court had held that ‘it is trite law that an appeal Court dealing with such a ground of appeal, the legitimate complaint is limited to the appraisal of the evidence and not on finding or non finding of a specific fact or issue. In the later cases, the matter can only be raised by a substantive ground of appeal.’
By not isolating each of the specific findings of facts for attack or complain by a separate ground of appeal, the appellant has not appealed against any of them. By not appealing against any of those specific findings of facts, the appellant accepted them as correct, conclusive and binding upon him and therefore cannot competently or validly argue contrary to any of them. See Iyoho v. Effiong (2007) 4 SC (Pt. 111) 90 and Dabup v. Kolo (1993) 12 SCNJ 1.
Learned Counsel for the appellant argued that the evidence of the respondent?s witness on the balance of the 3 million naira remaining unpaid is not consistent with the amount of N2,863,914.39 pleaded in the counter claim in that in his re-sworn statement on oath he said it was N1,264,800.00 and under cross examination he said it was N2,800,000.00 and asked that ?if the Counter-claim is held to have succeeded in its entirety, which of the amounts has the respondent established from Exhibit D9.
Paragraph 19 of the Counterclaim pleaded the unpaid balance of the debt thusly-
19. The Claimant in this counter-claim avers that as at 28/02/2010, the total indebtedness of the defendant in the counter-claim stood at N2,863,914.39k but that the defendant in the counter-claim had refused and/or neglected to repay the said total indebtedness despite repeated written and verbal demands. The defendant in the counter-claim statement of account between 22/01/2008 to 28/02/2010 as well as the said written demands is hereby pleaded and same will be relied upon at the hearing of this counter-claim.
The reliefs claimed for in the counter-claim and which were granted by the trial Court are as follows- ‘The sum of N2,863,914.39k being the total sum remaining unpaid in respect of the credit facility which was granted to the defendant in the counter-claim as at 28/02/2010 as per defendant?s in the counter-claim statement of account vide account No. 102000000440.
ii. The sum of 10% Court rate on the sum of N2,863,914.39k from the date of the delivery of the judgment until the said principal sum is fully liquidated.
iii. Cost of this counter-claim or separate suit.’
Exhibit 9 clearly established that the unpaid balance of the debt as at 28-2-2010 was N2,863,914.39. That is the amount stated in the last page of Exhibit D9 as the debit balance as at 28-2-2010. Acknowledging that it is Exhibit D9 that would be looked at to determine the status of the appellant’s account with the respondent, Learned Counsel for the appellant had argued that ‘In the instant case, the business of granting bank facility is purely documentary and the Respondent had tendered Exbt. D9 which the trial Court preferred to the one tendered by the appellant and admitted same as the authentic Statement of Account of the Appellant with the Respondent bank vide his Account No. 102000000440.
Being a documentary transaction, the document- Exbt. D9 must be sufficient enough to speak for itself. It is settled law that when a transaction or contract or business has been reduced to the form of a document, as in Exbt. D9, tendered by the respondent in this case, the contents of any such document cannot be contradicted, altered, added to or varied by oral evidence? except in circumstances stated in a – e of section 128.’
The appellant had accepted as correct and conclusive the specific finding of the trial Court that Exhibit D9 was not challenged or contradicted by the appellant, that it is authentic and credible.
The argument of Learned Counsel for the appellant that there is no evidence that the appellant received the said sum of 3 million naira because there is no evidence that the sum of 3 million was paid into the appellant’s account with the respondent, even though all the formalities for the disbursement of the facility of 3 million naira had been completed and that DW1 did not refer to any entry in Exhibit D9 showing the lodgement of the said sum of 3 million naira as the credit facility, is invalid and incompetent since the appellant had accepted as correct and conclusive, the trial Court’s specific findings of facts that the appellant by means of Exhibits D6, D7, D8 withdrew several sums of money as overdrafts and there is no evidence of falsification of any entries therein.
Both sides agree in their pleadings and evidence that the stock financing credit facilities granted the appellant by the respondent were in the nature of overdrafts.
Paragraphs 4, 5 6, 7 and 8 of the amended statement of claim state thusly-
4. That after a period of running the account, the claimant applied to the defendant for and was granted an overdraft facility up to a drawing limit of N2 million on the 5/5/2008 as he was told by the defendant that this is in order to enhance the smooth running of his business. And the claimant’s paid up this facility. The claimant pleads the letter of grant of the overdraft facility stating the terms and conditions and the defendant is hereby put on notice to produce her own copy of the letter at the trial.
5. That the claimant found out on information by a chartered auditor that he paid up the overdraft facility dated 5/5/2008 and over paid by N400,000.00 due to excess and arbitrary charges and debits.
6. That after paying up the overdraft facility of 5/5/2008 the claimants applied for and was given approval again for another overdraft facility up to a drawing limit of N3 million on 13/11/2008 which facility was yet to be drawn before the dispute on the former facility of N2 million. The defendant is hereby put on notice to produce any copy of the grant of further facility if any.
7. That the claimant used his bungalow located at No. 81 Kajola Quarters Kabba as security for the overdraft facility of 5/5/2008.
8. The claimant avers that he operated the account on which the overdraft was granted, making lodgements and withdrawals but the defendant failed in her obligation to him as a customer to render accurate and un-falsified statements of his account but on demand the defendant gave the claimant a falsified and inaccurate statements of account manipulated by way of excess and unknown charges, unearned interest and unauthorized withdrawals, thus inflating the claimants indebtedness. The claimants’ statement of accounts dated 01/03/2007 to 01/07/2009 is hereby pleaded.
Paragraph 3 of the further amended counter-claim state that:
3. The Claimant in this counter-claim states that the defendant in the counter-claim took an overdraft facility of N2,000,000.00 and N3,000,000.00 respectively alongside other charges, interest rates, monitoring fees, penalty fees e.t.c and the claimant in the counter-claim state that defendant in the counter-claim paid the initial facility of N2,000,000.00 but refused to pay only the subsequent facility of N3,000,000.00 alongside interest rate and other fees in respect of the said credit facilities of N3,000,000.00 and that the letter for the offer of the stock finance credit facility credit facility of N3,000,000.00 dated November 14, 2008 after a request for stock finance facility dated 21/2/08 is/are hereby pleaded and same will both be relied upon at the hearing of this suit or counter-claim.
After the approval of the facility, the facility was utilized by means of cheques drawn on that account up to the limit of 3 million naira. The respondent explained this process in paragraphs 19 to 29 of the amended counter-claim thusly-
19. The claimant in the counter-claim avers that after the revolving facility of N3,000,000.00 was availed to the defendant in the counter claim, the defendant in the counter claim issued a cheque dated on the 2/12/2008 for which he withdrew the sum of N2,940,000.00 from his account with the claimant in the counter-claim which is also reflected in the debit column of the defendant in the counter claim statement of account dated 22/01/2008 to the 28/2/2010. A copy of the said cheque issued and signed by the defendant in the counter claim is hereby pleaded and same will be relied upon at the hearing of this counterclaim.
20. The claimant in the counter claim also avers that after the revolving credit facility of N3,000,000.00 was availed to the defendant in the counterclaim, the defendant in the counterclaim further issued a cheque dated 22/1/09 for which he withdrew the sum of N1,000,000.00 from his account with the claimant in the counter claim which is also reflected in the debit column of the defendant in the counter-claim statement of account dated 22/01/2008 to 28/2/2010. A copy of the said cheque issued and signed by the defendant in the counter claim is hereby pleaded and same will be relied upon at the hearing of this counter claim.
21. The claimant in the counter claim also avers that after a revolving credit facility of N3 million was availed to the defendant in the counter-claim, the defendant in the counter-claim also issued a cheque dated 19/3/2009 for which he withdrew the sum of N1,500,000.00 from his account with the claimant in the counter claim which is also reflected in the debit column of the defendants statement of account dated 22/01/2008 to 28/2/2010. A copy of the said cheque issued and signed by the defendant in the counter-claim is hereby pleaded and same will be relied upon at the hearing of this counter claim.
22. The claimant in the counter claim avers that the defendant in the counter claim was availed/offered a revolving overdraft credit facility of N3,000,000.00 by the claimant in the counter claim through its authorized staffers which was accepted and signed for by Mr. Isaac Ubah Ogugua in the presence of Mrs. Isaac Ubah Ogugua.
23. The claimant in the counter-claim avers that upon the grant of the revolving overdraft credit facility of N3,000,000.00 to the defendant in the counter claim, the defendant in the counter-claim withdrew the sum of N2,940,000.00 on the 2/12/2008 vide cheque no 21507533 of which the said sum of N2,940,000.00 was debited in the defendant in the counterclaim statement of account. A copy of the said cheque of N2,940,000.00 and the statement of account where the same was reflected or indicated is hereby pleaded and same will be relied upon at the hearing of this counter-claim.
24. The claimant in the counter-claim also avers that after the grant of the revolving overdraft facility of N3,000,000.00 to the defendant in the counter-claim, the defendant in the counter-claim also withdrew from his account the sum of N1,000,000.00 on 22/01/2009 vide cheque no 21507534 of which the said sum of N1,000,000.00 was debited in the defendant in the counter-claim statement of account. A copy of the said cheque of One Million Naira and the statement of account wherewith same was reflected or indicated is hereby pleaded and same will be relied upon at the hearing of this counter-claim.
25. The claimant in the counter-claim avers that after the grant of revolving overdraft credit facility of N3,000,000.00 to the defendant in the counter-claim, the defendant in the counter-claim withdrew the sum of N1,500,000.00 on the 19/3/2009 vide cheque No 21507535 for which the said sum was debited in the defendant in the counter-claim statement of account. A copy of the said cheque and the statement of account wherewith same or the said debit was reflected is hereby pleaded and same will be relied upon at the hearing of this counter-claim.
26. The claimant in this counter-claim avers that, the defendant in the counter-claim was availed a revolving overdraft credit facility in order to enable him overdraw his account over and above the sum of N3,000,000.00 credit facility granted to him which had culminated to the various withdrawals which the defendant in the counter-claim made on the 2/12/2008 to the tune of N2,940,000.00 and on the 22/01/2009 to the tune of N1,000,000.00 and on 19/3/2009 to the tune of the sum of N1,500,000.00 respectively amongst others.
27. The claimant in this counter-claim avers that, in furtherance of the said credit facilities, its accrued interest rate, fees, charges, the defendant in the counter claim also executed an equitable mortgage by mere deposit of title document with claimant in the counter-claim in respect of the said credit facility of N3,000,000.00 and its accrued interest rate and fees and other charges and same will be relied upon at the hearing of this counter-claim.
28. The claimant in this counter-claim avers that as at 28/02/2010 the total indebtedness of the defendant in the counter-claim stood at N2,863,914.39k but that the defendant in the counter-claim had refused and/or neglected to repay the said total indebtedness despite repeated written and verbal demands. The above mentioned defendant in the counter-claim statement of account between 22/01/2008 to 28/02/2010 as well as the said written demands is hereby pleaded and same will be relied upon at the hearing of this counter-claim.
29. That the claimant in the counter claim avers that the defendant in the counter claim carried out various financial transactions with the claimant in the counter-claim. For which the defendant in the counter-claim made withdrawals and on some few instances also paid some insufficient monies into his account for which the total debit amount to N16,023,948.11k and the total credit amount to N13,160,033.72k for which the closing balance is N2,863,914.39k which the sum now owed by the defendant in the counter-claim as per his statement of account of between 22/02/2008 to 28/02/2010 which had fallen due to be payable by the defendant in the counter-claim.
The respondent in paragraphs 14 to 17 of its reply to the appellant’s consequential amended defence to the counter-claim further explained thusly-
14. That the claimant in the counter- claim in reply to paragraph 14 of the defence to the Amended Counter-claim avers that the defendant was allowed to overdraw his account up to the tune of the sum of N2,940,000, N1,000,000 and N1,5000,000 upon the grant of the sum of N3,000,000 stock finance credit facility and avers that the grant of a stock finance credit facility by the claimant in the counter-claim to the defendant in the counter-claim based on reaching an agreement which the defendant in the counter-claim was allowed to overdraw his account as per the said withdrawal of monies made by the defendant in the counter-claim as per what is contained in the statement of account of the defendant in the counter-claim accordingly.
15. The defendant to the counter-claim in reply to paragraph 15 of the amended defence to the counter-claim avers that it had never on any occasion and at any instance created any confusion by referring to the initial credit facility of N2,000,000 which had been liquidated because no confusion had ever occurred and there is no need of showing the receipt of the sum N3,000,000 for the subsequent overdraft credit facility because, the defendant in the counter-claim was allowed to overdraw his account for N2,940,000, N1,000,000 and N1,500,000 after the subsequent facility of N3,000,000 was approved and granted to the defendant in the counter-claim at various dates as per the defendant in the counter-claim statement of account of 22/01/2008 to 28/02/10 with the claimant in the counter-claim even when the defendant in the counter claim had no much monies in his account.
16. The claimant in the counter-claim in reply to paragraph 16 of the Amended defence to the counter-claim avers that since the said facility of N3,000,000 had been granted to the defendant in the counter-claim and the above mentioned withdrawals of various sum of monies were made by the said defendant to the counter-claim after the said grant, the defendant in the counter-claim can be asked to service a stock finance credit facility of N3,000,000 by paying the outstanding sum, interest rates, charges and fees in respect of the said grant of N3,000,000 credit facility.
17. The claimant in the counter-claim in reply to paragraph 17(a) of the amended defence to the counter-claim by aver that the sum of N3,000,000 requested for the defendant in claimant-claim was granted and disbursed to him via various withdrawals made as reflected in the statement of account.
The respondent through its only witness DW7 elicited evidence of the utilization of the overdraft of 3 million naira by means of cheques issued and signed by appellant withdrawing various sums of money from his account with respondent, which account had as at then a debit balance.
An overdraft facility presupposes that the customer does not have in his account the money he seeks to withdraw therefrom. The grant of the facility enables him to use cheques to withdraw the money not in his account or in excess of what is in his account. The bank does not pay the total sum of the facility into the account of the customer. It simply allows the customer to overdraw the account to the limit of the amount granted as overdraft facility. Exhibits D6, D7 and D8 are the cheques by which the appellant utilised the overdraft facility of 3 million naira. See Ishola V Societe Generale Bank Nig. Ltd (1997) LPELR- 1547(SC) in which the Supreme Court held that – ‘Again, with respect, the principle of law is long settled that if a customer draws a cheque for a sum in excess of the amount standing to the credit of his current account, it is nothing but a request for a loan and, if the cheque is honoured, the customer has borrowed the money by way of overdraft from the bank. See Cuthbert v. Robarts Lubbock and Co. (1909) 2 Ch. 226 at 233 and A.CB. Ltd. v. Egbunike and Anor (1988) 4 NWLR (Pt. 88) 350 at 365.” See also Afribank Nig. PLC V Onyima & Anor (2004) 2 NWLR (pt. 858) 654 (CA).
In the light of the foregoing, I resolve issues Nos. 1 and 2 in favour of the respondent.
On the whole, this appeal fails as it lacks merit. It is accordingly dismissed. The judgment of the High Court of Kogi State at Lokoja delivered on 29-2-2016 in Suit No. KGS/KHC/23/2010 by R.O. Olorunfemi J., is hereby affirmed and upheld.
The appellant shall pay costs of N400,000.00 to the respondent.
ADAMU JAURO, J.C.A.: I was afforded a copy in advance of the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in complete agreement with the reasoning and conclusions contained therein to the effect that the appeal is lacking in merit and ought to be dismissed.
I adopt the said judgment as mine in dismissing the appeal, I abide by all consequential orders made.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA.
My learned brother has given an indepth consideration of the two issues raised in this appeal. I agree with the resolution of the issues and the overall conclusion that this appeal is lacking in merit. I therefore concur with the reasoning and the conclusion dismissing the appeal. The appeal is accordingly dismissed. I abide by the consequential orders inclusive of the order as to costs.
Appearances:
Michael Bello, Esq. with him, John Uchechukwu Barrah, Esq.For Appellant(s)
John Ogwu Adele, Esq. with him, A.E. Adele, Esq., P.T. Iorbee, Esq., F.C. Ahaotu, Esq., S.R. Omoseyin, Esq. and Abdulhakeem Abdulkareem, Esq.For Respondent(s)
