OBONG-IFIOK (DR.) ANNY ASIKPO v. ACCESS BANK PLC (2015)

OBONG-IFIOK (DR.) ANNY ASIKPO v. ACCESS BANK PLC

(2015)LCN/7912(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of June, 2015

CA/C/16/2014

RATIO

BANKING LAW: CHARGES; WHETHER THE BANK IS ENTITLED TO CHARGE INTEREST ON LOAN

It is well settled that by practice, usage and custom of banking, banks charge interest on loans, overdrafts and other financial facilities granted to their customers. As long as a credit facility of whatever nature is granted to a customer by a bank remains outstanding, the bank is entitled to charge interest thereon. This is simply because it is part of the business of banking to grant credit facilities, and since it is not a charity organization, it must charge reasonably for that service.

While it is expected that such interest charged must be agreed upon by the parties, it has been held that interest may be charged even where no express interest is made a term of the facility. The Supreme Court, per Obaseki, JSC in Barclays Bank (Ni) Ltd v. Abuhakar (1977) LPELR-750 (SC), (1977) 10 S.C. 7 put it this way:
Where there is no express agreement, it is settled law that the Bank is entitled to charge compound interest on the basis that there is a custom to that effect or that the customer has impliedly consented where without protest he allows his account to be debited.
See also Diamond Bank Ltd v, Partnership Investment Co Ltd (2009) LPELR-939(SC), (2009) 18 NWLR (PT 1172) 67; UBA Plc. v. Lawal (2007) LPELR-9042 (CA).

A bank’s power to charge interest on loans, overdraft and other advances has become a matter of law, vested in the Central Bank of Nigeria and not just a matter of mutual consultation between the bank and its customer; Section 15 Banking Act, Cap 29, Laws of the Federation of Nigeria, 1990. See further: Union Bank v. Ozigi (1994) 3 NWLR (Pt.333) 385; Union Bank Plc v. Ajabule (2011) LPELR-8239 (SC). per. ONYEKACHI AJA OTISI, J.C.A.

BANKING LAW: CHARGES; WHETHER A PARTY THAT AGREES TO UNREASONABLE CHARGES MAY NOT BE ALLOWED TO RETRACT FROM IT

It may not be unheard of to find a bank which loads un-reasonable charges on its customer. If such charges were not voluntarily agreed upon prior to the grant of the facility, they may not be enforceable. But where a party voluntarily agrees to such unreasonable charges prior to the grant of the facility, the party may not be permitted to retract from it. Parties are bound by the contents of any lawful written agreement duly executed by them; Anyaegbunam v. Osaka (2000) 3 S.C. 1; African International Bank Ltd v. Integrated Dimensional System Ltd (2012) LPELR-971(SC). It is trite that an agreement written and executed by the parties cannot be varied by oral evidence; Koiki v. Magnusson (1999) LPELR-1697 (SC), (1999) 5 S.C. (Pt.111) 30; Egharevba v. OsagieN(2009) 18 NWLR (PT 1173) 299 S.C. The parties are bound by the terms of that agreement. An agreement which seeks to vary the original written agreement must also be in writing; Baliol Nigeria Ltd v. Navcon Nigeria Ltd (2010) LPELR-717(SC), (2010) 16 NWLR (Pt. 1220) 619 SC; Bilante International Ltd v. NDIC (2011) LPELR-781(SC). per. ONYEKACHI AJA OTISI, J.C.A.

CRIMINAL LAW: FRAUD; WHETHER AN ALLEGATION THAT FIGURES ARE MANIPULATED BORDERS ON FRAUD AND HOW FRAUD IS PROVED

An allegation that figures are manipulated borders on fraud, something dishonest and morally wrong. Particulars of the fraud must be pleaded and the allegation proved beyond reasonable doubt; Section 135(1) of the Evidence Act, 2011. See also Olufunmise v. Falana (1990) 3 NWLR (PT 136) 1, (1990) 4 S.C. 174; Babatunde v. Bank of the North Ltd (2011) LPELR-8249 (SC). per. ONYEKACHI AJA OTISI, J.C.A.

CONTRACT: TERMS OF CONTRACT; WHETHER THE ORDINARY MEANING SHOULD BE GIVEN TO THE WORDS USED IN A DOCUMENT

BANKING LAW: CHARGES; WHETHER THE BANK IS ENTITLED TO CONTINUE TO CHARGE INTEREST IN THE ABSENCE OF SPECIFIC AGREEMENT THAT INTEREST CHARGES BE SUSPENDED

Furthermore, in the absence of a specific agreement that interest charges be suspended, a bank is entitled to continue to charge interest until the credit facilities granted a customer of a bank have been completely cleared; STB Ltd v Inter Drill Nigeria Ltd (2007) All FWLR (PT 366) 756 at 761; UBN Ltd. v. Salami (1998) 3 NWLR (PT 543), (1998) LPELR-6189 (CA). per. ONYEKACHI AJA OTISI, J.C.A.

COURT: WHAT THE COURT CONSIDERS WHERE THERE IS DISPUTE BETWEEN A BANK AND ITS CUSTOMER IN RELATION TO RECOVERY OF LOAN ADVANCED BY THE BANKER TO CUSTOMER

As rightly submitted by learned Counsel for the Appellant, where there is a dispute between a bank and its customer in relation to recovery of loan advanced by the banker to customer the questions the Court should normally consider are:
1. Was the defendant granted a loan by the plaintiff;
2. If so, how much was the loan;
3. What was the interest agreed; and,
4. How much, if any, has the defendant paid out of the loan.
See: FBN Plc v. Obeya (1998) 2 NWLR (PT. 537) 205 at 207; A.C.B. Plc v. Nwanna Trading Stores (Nig) Ltd (2007) 1 NWLR (Pt 1016) 596. per. ONYEKACHI AJA OTISI, J.C.A.

CONTACT: TERMS OF AGREEMENT; WHETHER PARTIES ARE BOUND BY THE TERMS OF THE AGREEMENT THEY ENTER INTO

It is elementary that parties are bound by the terms of the agreement they enter into; UBN v. Ozigi (supra); African International Bank Ltd v. Integrated Dimensional System Ltd (supra). Learned Counsel for the Respondent rightly submitted that unless there is established evidence that a party was led into an agreement fraudulently, parties are bound by the written and express terms of their contract; Chidoka v. First Finance Co. Ltd (2012) LPELR-9343 (SC); (2013) 5 NWLR (PT 1346) 144. per. ONYEKACHI AJA OTISI, J.C.A.

BANKING LAW: CLAIM; THE MANNER IN WHICH A FINANCIAL INSTITUTION SHOULD ESTABLISH A CLAIM

In Oluremi v. NEB Ltd (2003) 5 NWLR (PT 812) 24-25, cited with approval in Oceanic Bank IntPlc v Broken Agro Allied Ind. Ltd (2008) LPELR-4671 (CA), this Court prescribed the manner in which a financial institution should establish a claim thus:
“The usual way of proving a debt by a bank is by putting in the statement of account or secondary evidence thereof where it is admissible.”
In Wema Bank Plc v. Osilaru (2007) LPELR-8960 (CA) this Court, per Okoro, JCA (as he then was), further held:
“It is trite that a bank statement of account is not sufficient explanation of debit and lodgments in a customer’s account to charge the customer with liability for the overall debit balance shown in the statement of account.
Any bank which is claiming a sum of money on the basis of the overall debit balance of a statement of account must adduce both documentary and oral evidence to show how the overall debit balance was arrived at. See Yusuf v. A.C.B (1986) 1-2 SC 49… per. ONYEKACHI AJA OTISI, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER CORROBORATION IS NEEDED IN TENDERING ENTRIES OR ELECTRONIC RECORDS

Section 51 of the Evidence Act, 2011 provides that:
“Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge a person with liability.”
This simply means that if the purpose of tendering the entries or electronic records was to charge a person with liability, there should be some form of corroboration of the entries. Learned author, S. T. Hon. S.A.N. in Law of Evidence in Nigeria, Vol. 1, put it this way at pages 121 – 122:
“But corroborative evidence here has no special form. Thus:
(a)Where a plaintiff produces books of accounts and one of his witnesses testifies in support of the entries but there is no cross-examination, this unchallenged evidence amounts to sufficient corroboration.
(b)Any relevant fact which could be treated as evidence would be sufficient corroboration, if true.
(c) Materials for corroboration may take the shape of vouchers, receipts or other documentary evidence or sworn oral testimony.
(d) Corroboration may also be by admission of the entries by the opposite party.” per. ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

OBONG-IFIOK (DR.) ANNY ASIKPO
(Trading under the name and style Of ABBNNY EDUCATIONAL PUBLISHERS) Appellant(s)

AND

ACCESS BANK PLC Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Andrew E. Okon J. of the High Court of Justice, Akwa Ibom State sitting in Uyo dated October 29, 2013 wherein the claims of the Appellant were dismissed and the Counter Claim of the Respondent was granted.

The Appellant, a customer of the Respondent (then known as Intercontinental Bank Plc), had instituted Suit No HU/239/2010 against the Respondent. By his Amended Statement of Claim, at pages 288 – 311 of the Records of Appeal, the Appellant sought the following orders of the trial Court:

a. A declaration that the Claimant is the customer of the Defendant by operating account numbers 0201001000001329 (now account number 0042927387), 02010000004389 (now account number 0042930237) and 0201001000177494 (now account no. 0042948522) obtaining credit facilities from Defendant for execution of contracts and that the Defendants owed the claimant many duties arising from the banking relationship.
b. A declaration that the Defendant was the Agent of the claimant by undertaking in a written agreement to collect contract proceeds from the

Anambra State Ministry Education vide the Memorandum of Understanding (MOU) and the contract proceeds domiciliation agreement/agreement and was bound by the agreements.
c. A declaration that the Defendant had fully recovered the total credit facility granted to the Claimant and necessary charges through amount recovered from the domiciliation agreement and other cash lodgments and fund transfer into the claimant’s account No. 020100100001329 (now account number 0042927387) between 01/10/2008 and 09/06/2010.
d. A declaration that the Defendant cannot continue to charge claimant unjustified interest with effect from 1st June, 2009 after having recovered the principal sum of N60,356,900.00 which the Claimant withdrawn out of the N62,000,000.00 credit facility granted to the Claimant and having failed in her duties and breached a fundamental term of the facility agreement.
e. A declaration that the correct balance on the claimant account number 0201001000001329 (now account number 0042922387), should be N2,806,559.13 credit made up as follows:
a. Closing balance as at 30/5/2009 credit – – 2,699,524.13
b. Cash Deposit by claimant debtor

as at 26/8/09 — 113,475.00 credit
c. Cash Deposit by claimant debtor as at 8/6/10 – 960.00 credit
d. Cash Deposit by claimant debtor as at 9/6/10 – 2,600.00 credit
Total – N2,806,559.13
f. A declaration that the correct balance in the Claimant’s company account No. 02010000004389 (now account number 0042930237) was N525,610.90 credit as at 26/6/2008 and after funds transfer/lodgment of N1,180,000.00 was N1,705,612.90 as at 17/4/2009.
g. A declaration that the Claimant is not owing the Defendant any sum of money having fray repaid the financial assistance of N60,356,900.00 and the claimants company account number 0201001000001329 (now account number 0042927387) reflected a credit balance of N2,688,524.13 though stated as N38,106.25 as at 30/5/2009.
h. A declaration that the Defendant having failed in her obligation to collect balance of the contract sum of N71.4 million breached the terms of the MOU/domiciliation agreement and having recovered more than the amount actually released to the claimant is not entitled to collect any other contract domiciliation payment meant for the claimant under any of the existing domiciliation

agreement between claimant and the defendant.
i. A declaration that the defendant’s refusal to release the approved N35million before 12/7/2010 after the fulfillment of all the conditions required from the claimant, gave rise to the frustration and termination of the contract awarded to the claimant by the Ebonyi State Ministry of Education for the 2008/2009 and 2009/2010 academic session after the claimant had invested N21,195,311.00 in the said contract.
j. A declaration that the defendant by refusing to finance the contract worth N69,120,000.00 from the Ebonyi State Ministry of Education to the claimant for the 2008/2009 school session frustrated the claimant from earning a profit income of N63,240,000.00 for the two academic sessions of 2008/2009 and 2009/2010.
k. A declaration that the Defendant misled the claimant with promises into spending a total sum of N21,195,311.00 in the contract subsequently terminated as a result of the frustration/disappointment caused by the Defendant.
l. An order directing the defendant to rectify claimants company account number 0201001000001329 (now account number 0042927387) to reflect credit balance of

N2,806,559.13 as at 10/6/2010 and account number 02010000004389 (now account number 0042930237) to reflect the correct credit balance of N1,705,612.90 as at N17/4/2009.
m. An order directing the Defendant to pay interest on the sum of N2,806,559.13 being the correct credit balance on claimants company current account number 0201001000001329 (now account number 0042927387) as at 10/6/2010 with effect from 01/7/2010 till date of judgment at 20% at the monthly balance rest formula of the bank.
n. An order directing the defendant to pay interest on the sum of N1,705,612.90 being the correct credit balance on claimant’s current account number 02010000004389 (now account umber 0042930237) as at 17/4/2009 with effect from 01/05/2009 till date of judgment at 20% at the monthly balance rest interest formula of the Bank.
o. An order directing the Defendant to refund the sum of N21,195,311.00 which Defendant encouraged the claimant to expend in the contract of Ebonyi State Ministry of Education which was terminated as a result of the frustration caused by the Defendant.
p. An order directing the Defendant to release all the collateral/properties of

the claimant given as security for the fully rep aid financial assistance of N60, 3561900.00.
q. An order directing the defendant to refund the sum of N8,755,245.26 being excess and irregular charges observed through Audit Verification exercise.
r. An order directing the Defendant to pay the claimant the sum of N63,240,000.00 as special damages being the profit the claimant would have earned from the contract of Ebonyi State Ministry of Education frustration by the Defendant for the two academic sessions of 2008/2009 and 2009/2010.
s. General damages of N60million in favour of the claimant against the Defendant for breach of contract agreement.
t. Interest on the judgment sum of 10% monthly from date of judgment till date of final judgment.

The Respondent filed a Statement of Defence with Consequential Amendment and counterclaim, at pages 239 – 363 of the Records of Appeal, in which it counterclaimed as follows:
1. The Defendant counterclaim against the claimant for the sum of N77, 608,175.71 being the outstanding indebtedness owed her by the claimant as at 1st June, 2011, arising “from the facilities advanced him as per the

pleading in the statement of claim. The Defendant shall at the trial of this case rely on various document pleaded in her statement of defence herein. The Defendant shall at the trial of this case rely on the statement of A/C 0201001000001329 and 02010000004389, operated by the Claimant to show various transactions thereto.
2. The Defendant shall specifically rely on paragraphs 1 – 43 of the statement of defence in establishing her counterclaim.
The Defendant also claim interest on the principal sum at the current Bank rate and as agreed between parties herein from June 2011 until judgment.
4. The Defendant therefore claims from the Claimant the sum of N77, 628,175.71 as well as the agreed interest on the facility.

At conclusion of hearing, the learned trial Judge dismissed the Appellant’s claims and granted the counterclaims of the Defendant, and awarded costs of N20, 000.00 in favour of the Respondent. Dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal on 4/11/2013, with sixteen grounds of appeal.

The parties exchanged Briefs of Argument, which were adopted by S.C. Peters, Esq. of Counsel for

the Appellant; and by Edidiong Akpanuwa, Esq., of Counsel for the Respondent on 24/3/2015. Out of the sixteen grounds of appeal, learned Counsel for the Appellant, distilled a sole issue for determination as follows:
Whether from the totality of the evidence adduced before the learned trial Judge by the parties His Lordship, the learned trial Judge was correct to have dismissed the Appellant’s claims and allowed the Respondent’s Counter claim.

The Respondent adopted this sole issue for determination as formulated by the Appellant.

?The facts leading to this appeal, as relayed by the parties differ in material respects. It is not in issue that the Appellant was a customer of the Respondent, who had obtained credit facilities from the Respondent to execute contracts for the supply of educational books to Ministries of Education in some States of the Federal Republic of Nigeria. For these purposes, the Appellant operated three accounts with these numbers 0201001000001329; 02010000004389; and, 02010010001 77494. The Respondent advanced credit facilities on two of these accounts, totalling the sum of N62 million, broken down as follows: on

00201001000004389, the sum of N27 million; and, on 02010010000001329, the sum of N 35 million. He was allowed to withdraw N25, 966,900.00 from account number 00201001000004389 while the sum of N1,033,100.00 was withheld as upfront interest/charges. On account number 02010010000 01329, he was allowed to withdraw the sum of N34, 390,000.00, while the sum of N610,000.00 was withheld as upfront interest/charges. The total sum of N60, 356,900.00 was released to him on these accounts.

The contract awarded to the Appellant by the Anambra State Ministry of Education was for N191.4 million. The Appellant’s position was that it was the responsibility of the Respondent by virtue of a Memorandum of Understanding and letters exchanged between the said Ministry and the parties, to recover payment for the contract from the Anambra State Government, which payment was to be domiciled with the Respondent.
The Appellant was paid N25 million by the said Ministry initially, without the money passing through the account. The sum of N95 million was subsequently recovered by Respondent in four installments, leaving a balance of N71 .4 million.

?Upon agreement of the

parties, on 261612008, the debit balances of both accounts were collapsed into one account, 02010010000001329, which now had a total debit of N81, 044,925.41. Upon this restructuring, the sum of N36 million was transferred from account no 00201001000004389 into 02010010000001329. Since only the sum of N60, 356,900.00 had been released to him, accumulated charges of N20, 688,025.41 by the Respondent within fifteen months had pushed the total indebtedness to N81,044,925.41 as at 26/6/2008. After the sum of N36 million was transferred from account no 00201001000004389, the said account had a credit balance of N525, 612.90. The Appellant’s debtors made subsequent payments of N1, 180,000.00 into the account, bringing the total credit on that account to N1, 705,612.90. But the Respondent later posted twenty six charges into the same account amounting to N1, 001,176.16.00.

?On 29/1/2009, the Respondent further restructured the facility balance of N76, 706,502.33 on 02010010000001329, by extending the repayment period by 180 days. The Appellant averred he was debited on the accounts for the facility of N62, 000,000.00, from March 2007 to May 2009, as interest and

other charges, a total sum of N45,249,500.22.

It is the case of the Appellant that he had cleared his indebtedness and refunded a total sum of N63, 220,000.00 in full repayment of the loan.
As already stated, on 26/6/2008, on account no 00201001000004389, he had a credit balance of N525, 612.90. As at 30/5/2009, on account number 0201001 0000 001329 he had a credit balance of N2, 688,524.13.

The Appellant alleged there were manipulations on the accounts. After he had completely cleared his indebtedness on 02010010000001329 on 30/5/2009, the Respondent resumed further charges on the account. He noticed arbitrary charges. Two debit transactions totalling N41, 910,246.57 were posted on his account on 12/8/2009. The transactions were not to his knowledge or for his benefit. Irregular charges of N8,755,745.26 were observed and the Appellant protested in writing. It was averred that in response, the Respondent by letter dated 7/10/2009 admitted the excess and irregular charges, and offered to refund N1, 700,000.00. No refund was made. But, the Respondent did not stop further interests and charges on the account as requested by the Appellant.

?The

contention for the Appellant was that the Respondent was no longer entitled to collect or debit the Appellant’s account with further interest or charges, having recovered the sum of N63, 220,000.00 as against the N60, 356,900.00 released to the Appellant for contracts. From the sum of N95 million, the sum of N31, 780,000.00 was released to the Appellant. The Appellant averred that this sum was not a new facility but in acknowledgement of the fact that only the sum of N60, 356,900.00 had been released to him and that he had cleared his indebtedness.

?The Appellant won another contract worth N69, 120,000.00 from Ebonyi State Ministry of Education. He wrote to seek credit facility from the Respondent of N35 million. He was given conditions for approval of the said facility, which he satisfied. He also commenced execution of the new contract on his own, investing personal resources amounting to N21, 195,311.00. The Respondent however notified him subsequently that the new facility sought had been cancelled as a result of his previous indebtedness. The Appellant had earlier given as collateral for the initial credit facilities, two landed properties with a

total forced sale value of N85 million. When he could not get the Respondent to rescind its decision on the new facility sought, the Appellant applied to have one of the landed properties released to him to enable him seek credit facility elsewhere. The Respondent did not respond to his request. Finally, he could not execute the contract and it was terminated by the Ebonyi State Ministry of Education. As a result, the Appellant averred that he lost the sum of N21,195,311.00, being his personal funding of the contract; and the sum of N63,240,000.00, being the expected profit on the contract from Ebonyi State Ministry of Education.

On their part, the Respondent admitted that credit facilities totaling the sum of N62, 000,000.00 were granted to the Appellant but added that on May 16, 2008, the Appellant enjoyed an enhancement from the sum of N80 Million to N90 million as Contract Finance (Time Loan) for 90 days to enable him produce and deliver 80, 000 copies of Abbnny Educational Uniform Continuous Assessment Test and Evaluation Workbook for Anambra State Ministry of Education for 2007/2008 session. That the Appellant on June 20, 2008 enjoyed N82 million

Bankers Acceptance for 90 days to enable him collect receivables of N191 million from Anambra State and pay up his indebtedness. The Respondent also stated that the Appellant enjoyed yet another facility of N76, 706,502.22 on January 29, 2009 as Time Loan for 180 days. The Appellant accepted the facility on February 3, 2009. But, the Appellant paid in N10 million on February 13, 2009 before the restructuring was booked into his account. The restructuring was then booked at N71 million to take care of the bank charges as per the offer letter. The Respondent averred that the Appellant was allowed to draw down on these facilities less the charges he ought to have made before withdrawals. The deductions were in line with the respective offer letters of the Respondent which were accepted by the Appellant. The Appellant had earlier authorized the debit entries by letter dated May 20, 2008.

?The Respondent denied it had any responsibility to pursue and recover payment from the Anambra State Government under any agreement or MOU. It also denied that there was an agreement to stop charging interest on the accounts. Their position was that unless the Anambra State

Government paid another N25 million on or before February 25, 2009, the Respondent would not stop charging interest on the facility.
Their letter of 6/3/2009 was specific that the issue of interest would be addressed after payment of N25 Million.

The Respondent further denied that either of the accounts of the Appellant was in credit when the accounts were restructured to be operated together. That the movement of N36 million from 02010000004389 to 020100100001329 still left 02010000004389 in debit as the interest and other charges were not moved. The balance of N525, 000.00 and the subsequent payment of N1, 180,000.00 into the account only reduced the Appellant’s debit balance on the account. The Respondent averred that the interest and all other charges on the accounts were as stipulated for the facilities which the Appellant accepted, and that there was no manipulation of the interest or other charges. The Respondent also denied it wrote any letter accepting to refund any sum to the Appellant, alleging that the letter was forged.

The Respondent denied that it had approved or accepted to grant any further facility to the Appellant to execute

a contract with Ebonyi State.
It denied it had requested for any requirement from the Appellant in respect of its contract with Ebonyi State. It stated that the Appellant, who had not liquidated his indebtedness to the Respondent, was not entitled to any or all of its collateral. The Respondent finally denied the claims of the Appellant and asked the trial Court to grant its counterclaim.

In his Amended Reply to the Statement of Defence, at page 324 – of the Record of Appeal, the Appellant averred that enhancement of contract finance as at May 2009 for another 90 days was not a new facility but was done in preparation for the consolidation exercise of 26/6/2008 on the two accounts, which brought his indebtedness to N81,044,925.41.
He also averred that the facility restructuring on N76, 706,602.22 by document dated 29/1/2009 was not a new facility but an extension of the repayment period of the outstanding balance as at 12/1/2009 on the facility in 020100100001329. He pleaded that enhancement of facility, branding of outstanding debt as Bankers acceptance and Restructuring of outstanding debt are the various ways the Respondent extended

repayment periods to the Appellant while awaiting contract payment proceeds from Ministry of Education, Anambra State. He further averred that all restructuring was done before 30/5/2009.

The parties had witnesses who testified in line with their respective pleadings and tendered relevant documentary evidence. The time honoured principle of law remains that he who asserts must prove; Ohochukwu v. Attorney General, Rivers State (2012) LPELR-7849(SC); CPC v INEC (2011) LPELR-8257(SC); Hillary Farms Ltd v M.V. Mahtra (2007) 6 S.C. (PT.11) 85. The Appellant as claimant had the burden to prove his case. He testified in person as PW1 and tendered a number of documents. Staff of the Respondent, Moses Udosen, Relationship Manager, testified for the Respondent as DW1 in their defence and in proof of the counterclaim.

As already acknowledged the evidence revealed that the parties had a long standing relationship of banker and customer. The Appellant had enjoyed the financial assistance of the Respondent in running his business, until their relationship turned sour. The Appellant alleged that he had been overcharged for the facilities granted to him by the

Respondent, and that there were manipulated charges. The genesis of the facilities granted to him was for N27 million and N35 million. PW1 tendered Exhibit J, being the offer letter for overdraft facility of N27million; and Exhibit K, which was the offer letter for the contract finance facility of N35 million. Exhibit AH was another offer letter titled:
“RE: ENHANCEMENT OF CONTRACT FINANCE FACILITY FROM N80 MILLION TO N90 MILLION”

These letters indicated all the terms of each respective offer which included the pertinent interest rates and other charges. Each of the offers also contained an acceptance portion, which the Appellant signed stating that:
All the terms and conditions of this offer letter are accepted by me, OBONG (DR) ANNY ASIKPO (TRADING AS ABBNNY EDUCATIONAL PUBLISHERS).

These offer letters also included the following clause:
“The borrower hereby agrees and accepts that Intercontinental shall be entitled to capitalize interest on the facility at the rate both during and after expiry of the tenure hereby granted until the facility is fully paid or recovered.”

Exhibits AK and AK1 were tendered under cross examination

through PW1, who did not dispute their authenticity. These documents were issued by the Appellant to the Respondent, further accepting the terms and conditions for drawdown on the Enhancement of Contract Finance Facility and authorizing the Respondent:
“to deduct ‘upfront, fees and charges in respect of the loan facility’
The Appellant also issued an ‘authority to debit’ his account for the cost of perfecting the legal mortgage on the pledged property. Under cross examination, at page 507 of the Record of Appeal, PW1 admitted thus:
“When the facilities were granted to me the bank took interest on charges upfront. My complaint is that the bank should have taken N1m as upfront charges and not over N1.6 m which the bank took.”

See also his testimony under cross examination at pages 504 and 524 of the Record of Appeal.

Exhibit AL, also tendered by PW1 under cross examination, was the letter he wrote to the Respondent on 16/6/2008 seeking a renewal of the facility of N82million for another period of 90 days, while awaiting payments from Anambra State Government. It was approved by letter dated 20/6/2008, with its stated terms and conditions

duly accepted by the Appellant. PW1, again under cross examination tendered Exhibit AM dated 29/1/2009 by which another application for restructuring of the facility of N76, 706,502.22 was approved with its stated terms and conditions duly accepted by the Appellant. Exhibit AN dated 3/2/2009 was under caption: “RENWAL OF OUTSTANDING FACILITY OF N76, 706,502,22 MILLION FOR 180 DAYS TENOR.”

LPELR-750 (SC), (1977) 10 S.C. 7 put it this way:
Where there is no express agreement, it is settled law that the Bank is entitled to charge compound interest on the basis that there is a custom to that effect or that the customer has impliedly consented where without protest he allows his account to be debited.
See also Diamond Bank Ltd v, Partnership Investment Co Ltd (2009) LPELR-939(SC), (2009) 18 NWLR (PT 1172) 67; UBA Plc. v. Lawal (2007) LPELR-9042 (CA).

See also the documents tendered by PW1 which indicated that the transaction was subject to the rules and regulations of the Central Bank of Nigeria. I note that the Appellant pleaded that the Respondent’s charges were far above the Central Bank of Nigeria lending rate of 20% per annum prevailing

at the time the overdraft facility was granted; paragraph 31 of the Amended Statement of Claim at page 302 and the testimony of PW1 at page 508 of the Record of Appeal. But, aside from the bare faced assertion, no proof was tendered by the Appellant to show that the charges on the facilities received were not in tune with the Central Bank of Nigeria fixed charges. This allegation was therefore not proved.

Parties are bound by the contents of any lawful written agreement duly executed by them; Anyaegbunam v. Osaka (2000) 3 S.C. 1; African International Bank Ltd v. Integrated Dimensional System Ltd (2012) LPELR-971(SC).

It is trite that an agreement written and executed by the parties cannot be varied by oral evidence; Koiki v. Magnusson (1999) LPELR-1697 (SC), (1999) 5 S.C. (Pt.111) 30; Egharevba v. Osagie

(2009) 18 NWLR (PT 1173) 299 S.C. The parties are bound by the terms of that agreement. An agreement which seeks to vary the original written agreement must also be in writing; Baliol Nigeria Ltd v. Navcon Nigeria Ltd (2010) LPELR-717(SC), (2010) 16 NWLR (Pt. 1220) 619 SC; Bilante International Ltd v. NDIC (2011) LPELR-781(SC).

Therefore an agreement to vary the terms of an earlier agreement for a credit facility must also be in writing to be enforceable.

In the instant case, as already observed, all the various applications for renewals, restructuring, enhancement, came with their own distinct terms and conditions, which the Appellant duly accepted in writing.
Indeed under cross examination at page 524 of the Record of Appeal, PW1 admitted:
“Every facility I enjoyed from the defendant attracted charges”

At page 529, he further admitted:
“When I applied for facilities and same were granted to me, I did not question the interest rate”

The Appellant had alleged the manipulations of charges on his account.
He also questioned the withholding of the sums of N1,033,100.00 and N610, 000.00 by the Respondent. The Respondent’s

explanation was that the said sums of N1,033,100.00 and N610,000.00 were retained from these accounts as up-front interest/charges, upon agreement reached with the Appellant by the offer accepted by him, prior to the release of the funds. There was no credible challenge to this assertion.

It was also alleged by the Appellant that the Respondent continued to deduct manipulated arbitrary charges and interest on the accounts. The Respondent denied this allegation, maintaining that all the facilities granted the Appellant, whether restructured or enhanced or by whatever description and for whatever period came with its own distinct charges.
That it never charged interest outside the agreed terms. The documents tendered by PW1 in evidence in chief and under cross examination all show that there were different categories of charges for each facility or extension of same howsoever granted. Although the Appellant did not demonstrate by any credible evidence that the interest and charges deducted by the Respondent, upfront or subsequent to draw down were arbitrary or manipulated, it would appear that this allegation was not seriously made. The learned trial

Judge rightly described the allegation as criminal, see page 550 of the Record of Appeal.

The Appellant had alleged that the Respondent had the duty of pursuing payment from Anambra State Government upon the contract and that the Respondent had consented to stop interest charges until the facility was paid off, in view of the long period of time the Anambra State Government was taking to settle the contract sum. Exhibit H, tendered by PW1, was the Minutes of a meeting held by the parties and officials of the Anambra State on September 10, 2008 regarding the mode of payment on the contract between the Appellant and Anambra State. The minutes stated thus:
“The issue of whether or not

Abbny publishers should continue to pay interest rate to Intercontinental Bank Plc Uyo was not immediately resolved.”

Exhibit L was the minutes of another meeting held on February 6, 2009.
The minutes stated thus:
“Mr Bassey Ebong assured the meeting that if another N25 million is released on or before 22/23rd February, 2009 that the Bank will seek approval to stop Capitalized interest on the outstanding balance owed to her by Abbnny Publishers.”

Mr Bassey Ebong was described therein as the Area Business Executive of the Respondent, and represented it at the meeting. These Exhibits tendered by the Appellant belie his contention that there was an agreement by the Respondent to stop charging of interest. Rather, as the Respondent rightly had averred, the Respondent’s representative gave a commitment to seek approval to stop capitalized interest on the outstanding balance owed by the Appellant, if another N25 million is released on or before 22/23rd February, 2009. This was not done, hence the Respondent in its letter to the Hon Commissioner of Education, Anambra State, tendered as Exhibit M by PW1 stated:
“…it was discussed and

agreed that the next payment of N25, 000,000.00 (Twenty Five Million Naira Only) will be made on or before the 25th of February, 2009 such that interest charges in the account will be addressed.
We wish to bring to your notice that you have reneged on this agreement and hence the state of the account still remains the same”.

See also the Appellant’s letter, dated December 23, 2008, Exhibit P, to the Respondent in which he acknowledged that the outstanding balance on the facilities was N76, 706,502.22 and requested that further interest and other charges be stopped in view of the failure by the Anambra State Ministry of Education to pay off the entire contract sum.

?Exhibits C and C1 were letters written by the Ministry of Education, Anambra State to the Respondent committing itself to paying in all monies generated in respect of the contract with the Appellant into his account with the Respondent. The letters mean no more than they state.
The letters represent that written commitment by the Ministry of Education, and were not a commitment by the Respondent to pursue funds due to the Appellant on the contract with the Ministry of Education,

Anambra State.

It was not in issue that the debit balances in the accounts operated by the Appellant were restructured into one by the movement of N36 million from 02010000004389 into 020100100001329. However, contrary to the stance of the Appellant, one account was not closed. Under cross examination, at page 506 of the Record of Appeal, PW1 said:
“I operated two accounts with the defendant before 26/6/2008. On 26/6/2008, the defendant consolidated the two accounts to become only one account which I am still operating with the defendant. It is not true that even at consolidation, the two accounts were operated separately side by side.”

This testimony loses sight of the fact that PW1 also deposed in paragraph 17 of his written deposition at page 316-317 of the Record of Appeal that after the movement of N36 million from 02010000004389 into 020100100001329, there was a credit balance of N525, 000.00 in 02010000004389 and a further subsequent payment of N1, 180,000.00 into the same account by his debtors. If the account 02010000004389 had been closed or was no longer in operation, no credit can have been received therein.

?The Appellant

pleaded that all renewal of facilities were concluded before May 30, 2009. Under cross examination, at page 507 of the Record of Appeal, PW1 admitted thus:
“As at the point of consolidation, I was in the debit of over N81m. At the point of consolidation, I was in debit in the two accounts.”

He was at pains to prove that he had cleared off his entire indebtedness.
Exhibit AT was the statement of account of 02010010000 1329. The said Exhibit showed that the Appellant had paid a total of N141, 070,000.00 leaving a credit balance of N16, 018,018.00 on 1/6/2009. Thereby the sum of N81,044,925.41 was more than paid off.

The position of the Respondent was that the restructuring of the debit balances did not affect the already accrued charges and interest on that the account and that the sums of money paid into the account only reduced the Appellant’s debit balance thereon. The same Exhibit showed the various charges on the facilities for which the account was debited. I shall return to this point later.

?The Appellant as PW1 said he commissioned auditors to audit his account with the Respondent and that he sent the audit report to the

Respondent. PW1 tendered a letter dated August 28, 2009, Exhibit N, being a letter addressed to the Respondent and captioned:
“REQUEST FOR RECONCILIATION AND REFUND OF EXCESS CHARGES ON ACCOUNT NO. 020100100001329, 02010000004389 AND 0201001000177494.

The letter stated, in part, as follows:
“Due to the inconsistencies and several questionable entries discovered in the above accounts, I contacted my External Auditors…
Audit and Investigate my Account with your branch…
The Auditors have completed the investigations and a copy of their report is herewith attached for your perusal, please.
In view of the above, I am requesting for the reconciliation of the accounts and subsequent refund of the excess charges of Eight Million, Seven Hundred and Fifty-five Thousand, Seven Hundred and Forty-five Naira, Twenty-six Kobo only (N8,755,745.26) to me…”

See also his testimony under cross examination, at page 508 of the Record of Appeal. PW1 admitted under cross examination that there was nothing to show that the Respondent had anything to do with the Audit Report, Exhibit O. The Respondent denied it had knowledge of any audit on

the Appellant’s accounts and that the auditors neither called to inspect the books and entries representing the Respondent’s relationship with the Appellant nor were the auditors given any, such documentation. No audit queries were raised. The Appellant did not deny that audit queries were not raised. I note that Exhibit N, as reproduced above, did not make mention of any input from the Respondent in this audit exercise. Audit queries are necessary to clarify unclear entries. The question is: how does an auditor produce an authentic audit report without a review of the complete documentation of the relevant relationship?

An audit report that is made without opportunity given for proper input from the other party affected by it cannot be countenanced as such. See also Adigun v. A.G. of Oyo State (1987) 3 S.C. 250. Liability cannot be laid at the feet of a party based on the result of an exercise commissioned by the other party that did not admit or take account of his input. No weight can therefore be attached on the said audit report.

Exhibit Q dated October 7, 2009, also reproduced by the learned trial Judge at pages 550-551 of the Record of Appeal, was

tendered as a reply written by the Respondent in response to Exhibit O. Exhibit Q explained as follows:
“…the interest charges were interest on the overdraft facilities and the time loan granted to your company from February, 2007 to August, 2009 which were based on the daily outstanding balances and the interest rates as agreed with you at the time the transactions were initiated. Kindly refer to the offer letter. Other debit charges of N783, 500.00 (seven hundred and eighty three thousand, five hundred Naira only) were expenses incurred in perfecting legal mortgage on the pledged collateral which was agreed with you at the time the transactions were initiated. You may also refer to the offer letter(s) for the facility and also your letter of authority to debit your account for cost of perfection charges. You will agree with us that this takes off over N17m from your claims for refund leaving about N1.7m for discussion. We would appreciate if you give us your cheque for the total outstanding amount of N43, 749,398.11 …probably less N1.7m pending the outcome of our discussion on the balance.”

Although the Respondent denied the authority of the

signatory of the letter and thereby the legitimacy of this letter, the letter as worded, was not an admission of excessive charges of N1.7 million. The issue of N1.7 million was still left for future discussion. As the learned trial Judge rightly noted, the stance of the Appellant to the effect that he had cleared all indebtedness before May 30, 2009 cannot be the case.

The Appellant applied to the Respondent by letter, Exhibit AB, dated June 15, 2010, to have one of his two landed properties released to him to enable him take on fresh facility from another bank and execute the contract from Ebonyi State Ministry of Education. The Appellant wrote thus:
“I wish to use this medium to request for the release of one out of the two collaterals, I pledged to the bank in January, 2008 when I took a loan of N35 million to supplement the cost of producing ABBNNY Workbooks, which I supplied to Anambra State Ministry of Education…
Sir, taking into consideration my frantic effort to recover our indebtedness of the sum of N71.4 million from the Government of Anambra State and liquidate the outstanding bank charges in my account which of course the bank is

aware that the fault was/is not mine but that of the Government of Anambra State, I have no doubt that the bank would be reluctant to grant request my request hereinabove. ”

The Respondent declined this request on the basis that the credit facilities granted to the Appellant had not been cleared. In his further letter Exhibit AD, dated June 21, 2010, the Appellant wrote thus:
“The bank should also note that despite the fact that my account is currently in red due to non payment of my N71.4 million debt owed to me by the Ministry of Education, Anambra State…
I am very hopeful that soonest the money shall be pay(sic) to me and I shall in turn pay to the bank what we shall mutually agree as additional bank charges including interest on the N62 million loan which I collected for the Anambra State job having earlier repaid the principal sum plus over N2 million as bank charges including interest.”

The dates on which these letters were written, June 15, 2010 and June 21, 2010 are crucial. Also crucial is another letter dated January 6, 2010 at pages 87 – 89 of the Record of Appeal, written by the Appellant to the Respondent in which he

requested for the following concessions from the Respondent:
“a) That the bank should suspend/stop further charges/interest on the said account with effect from 1st January, 2010.
b). That the bank should give me a waver (sic) of 50% on the outstanding bank charges/interest of N47, 606,270.65K in full and final settlement of the facility under review.”

The learned trial Judge took the view that implication of Exhibit AD written on June 21, 2010 is that the Appellant was still somewhat indebted to the Respondent. Learned Counsel to the Appellant submitted that this finding by the learned trial Judge was speculative. I am afraid I do not take that subscribe to the view that the finding was speculative.

It is quite trite that words used in a document are given only their ordinary natural grammatical meaning; First Bank Plc v. Maiwada (2012) LPELR-9713(SC); Ihunwo v. Ihunwo (2013) LPELR-20084 (SC). From the undiluted meaning of the words used in the above letters, the Appellant stated his account is currently in red. That while he had paid off the principal sum of the credit facility, together with some of the interest, he was still indebted to

the Respondent in respect of some additional bank charges. A customer who wrote these words on June 21, 2010 ought not to present a case that he had paid off all outstanding liability as at May 30, 2009. As at January 6, 2010, the Appellant was appealing that the Respondent cease further bank charges/interest, which means that he acknowledged that the bank charges/interest were still running. The Exhibits reveal that the Appellant definitely recognized the fact that there was still additional bank charges/interest. He sought to have these additional bank charges/interest negotiated with the Respondent, and he expected to mutually agree with the Respondent on this issue. Learned Counsel for the Appellant contended the words additional bank charges convey an idea of charges that were not originally agreed upon by the parties. However, the word ‘additional’ simply means ‘supplemental or added to something’. The Appellant had already paid up some of the bank charges/interest. From his letters he acknowledged the bank charges/interest was still running. A completely new bank charge or interest, different from the original charge or interest, was not being

negotiated. Rather, the prevailing bank charges/interest was sought to be suspended or at best re-negotiated. The Respondent took on the collateral to secure the payment of the credit facilities it availed the Appellant. The Respondent cannot be compelled to release any property to the Appellant until the facilities are completely cleared.

Indeed, all I understand the Respondent to be saying is that there were still outstanding bank charges and interest which had not been cleared.
The Appellant admitted to signing the documents which gave rise to these facilities. The Appellant agreed and accepted that the Respondent shall be entitled to capitalize interest on the facility at the rate both during and after expiry of the tenure until the facility is fully paid or recovered. The outstanding bank charges and interest were capitalized and continue to attract further charges and interest so long as they remain outstanding. Furthermore, in the absence of a specific agreement that interest charges be suspended, a bank is entitled to continue to charge interest until the credit facilities granted a customer of a bank have been completely cleared; STB Ltd v

Inter Drill Nigeria Ltd (2007) All FWLR (PT 366) 756 at 761; UBN Ltd. v. Salami (1998) 3 NWLR (PT 543), (1998) LPELR-6189 (CA).

The Respondent denied it had approved a facility to the Appellant to execute a contract with Ebonyi State. Exhibit V, tendered by PW1 is a letter from the Hon. Commissioner of Education, Ebonyi State addressed to the Respondent in which was stated:
“Through the publisher’s letter to us, we are aware that your bank is to fund the printing/supply of the aforementioned workbooks to be supplied to us, and the publisher has informed us that all payment shall be made to them through their Bank account in Intercontinental Bank…and we have agreed …
In view of the aforesaid, you may wish to grant the publisher’s request for a credit facility to speed up the printing/supply of the workbooks to us.”
From the clear wording of this letter, it was the Appellant who supplied the information to Ministry of Education, Ebonyi State, regarding its request for credit facility from the Respondent to finance the contract.
See also Exhibit Z, a letter written by the Appellant to the Hon. Commissioner, Ministry of Education,

Ebonyi State, also tendered by PW1. No communication to indicate an approval by the Respondent of the request for a facility was tendered by the Appellant. Neither did the Appellant plead the details of any verbal approval. Indeed under cross examination, at page 508 of the Record of Appeal, PWI stated thus:
“The contract agreement signed in 2006 with Ebonyi, State Government incorporated that the defendant shall receive the proceeds by funding the project for three years. The bank did not write to me but it did what was in the contract by funding the project and receiving the payment. This was in respect of the 1st tranche. The bank later wrote to me saying that it would not fund the 2nd and 3rd tranches because I was owing (sic) the bank. That is why I am in Court. ”

There is nothing therefore to controvert the denial of the Respondent that it did not give any approval to the Appellant on this request. Rather, Exhibit AC, tendered by PW1, which was a letter from the Respondent declining the Appellant’s request for a credit facility to fund the Ebonyi State contract, corroborates the stand of the Respondent that it never gave an approval, whether

oral or in writing.

Learned Counsel for the Appellant challenged the grant of the counterclaim by the learned trial Judge. It is well settled that a counterclaim is a separate and independent action from that in which it was raised. The counterclaimant bears the burden of proving his counterclaim by presenting substantial credible evidence; Kyari v. Alkali (2001) 5 S.C. (Pt 11) 192.

The documentary evidence revealed the existence of the credit facilities granted to the Appellant by the Respondent, and the terms thereof. PW1 tendered Exhibits J and K, and under cross

examination, Exhibits AH, AJ, AK, AK1 AL, AM and AN were tendered through him. These Exhibits reveal that there were express agreements on the fundamental terms of each facility granted to the Appellant by the Respondent. The amount of each facility and the agreed charges and interest for each facility were fully disclosed. They also disclosed that the transactions were subject to the rules and regulations of the Central Bank of Nigeria.
These Exhibits also reveal that after the accounts of the Appellant were consolidated, the indebtedness continued to attract other facilities. It is elementary that parties are bound by the terms of the agreement they enter into; UBN v. Ozigi (supra); African International Bank Ltd v. Integrated Dimensional System Ltd (supra). Learned Counsel for the Respondent rightly submitted that unless there is established evidence that a party was led into an agreement fraudulently, parties are bound by the written and express terms of their contract; Chidoka v. First Finance Co. Ltd (2012) LPELR-9343 (SC); (2013) 5 NWLR (PT 1346) 144.

In Oluremi v. NEB Ltd (2003) 5 NWLR (PT 812) 24-25, cited with approval in Oceanic Bank IntPlc v Broken Agro Allied Ind. Ltd

(2008) LPELR-4671 (CA), this Court prescribed the manner in which a financial institution should establish a claim thus:
“The usual way of proving a debt by a bank is by putting in the statement of account or secondary evidence thereof where it is admissible.”
In Wema Bank Plc v. Osilaru (2007) LPELR-8960 (CA) this Court, per Okoro, JCA (as he then was), further held:
“It is trite that a bank statement of account is not sufficient explanation of debit and lodgments in a customer’s account to charge the customer with liability for the overall debit balance shown in the statement of account.
Any bank which is claiming a sum of money on the basis of the overall debit balance of a statement of account must adduce both documentary and oral evidence to show how the overall debit balance was arrived at. See Yusuf v. A.C.B (1986) 1-2 SC 49…In the instant case, it was not sufficient for the DW1 to dump the statement of accounts on the Court without explaining clearly the entries therein particularly since the debt is constituted by interest charged after the final demand notice… ”

Section 51 of the Evidence Act, 2011

provides that:
“Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge a person with liability.”
This simply means that if the purpose of tendering the entries or electronic records was to charge a person with liability, there should be some form of corroboration of the entries. Learned author, S. T. Hon. S.A.N. in Law of Evidence in Nigeria, Vol. 1, put it this way at pages 121 – 122:
“But corroborative evidence here has no special form. Thus:
(a)Where a plaintiff produces books of accounts and one of his witnesses testifies in support of the entries but there is no cross-examination, this unchallenged evidence amounts to sufficient corroboration.
(b)Any relevant fact which could be treated as evidence would be sufficient corroboration, if true.
(c) Materials for corroboration may take the shape of vouchers, receipts or other documentary evidence or sworn oral testimony.
(d) Corroboration may also be by admission of the entries by the

opposite party.”

Exhibit AT was the statement of account for 02010010000 1329 and Exhibit AU was the statement of account for 02010000004389. The learned trial Judge considered the pleadings, as well as the evidence adduced and took the view that the Respondent did not dump these Exhibits on the trial Court. I agree with the learned trial Judge. On 5/6/2013, DW1 adopted as his evidence, his sworn written depositions made on 19/7/2012 and his further depositions made on 31/5/2013. He tendered Exhibits AT and AU. These exhibits which were already made available to the Appellant having regard to the Rules of Court were admitted in evidence without objection from the Appellant’s Counsel.

Other exhibits relevant to the facilities granted to the Appellant were tendered through PW1 under cross examination. DW1 was cross examined on the said depositions and on the contents of the exhibits tendered. DW1 gave ample explanations on the details of Exhibits AT and AU both in his written depositions and under cross examination.

The documents disclosing germane details of the credit facilities granted to the Appellant were provided in the other exhibits

already before the trial Court. PW1 was confronted with the exhibits disclosing details of the facilities, most of which were admitted through him.

Exhibit E1 is the statement of account for 020100100001329 but it stopped at the entry for 30/5/2009, which showed a credit balance of N38, 106.25. Exhibit AT, which is the statement of account for the same account continued to disclose entries up to 30/6/2011. Exhibit AT showed entries for time loans and capitalized interest after 30/5/2009.
On Exhibit AT are two entries on 12/8/2009 for a Time Loan of N6, 910,246.57 and of N35, 000,000, totaling N41, 910,246.57. Under cross examination, DW1 said:
“We gave N41M loan to the claimant on 12/8/2009.
If that loan was not given the interest would not have arisen.”

In paragraph 7 of his written deposition at page 252 of the Record of Appeal, DW1 had explained thus:
“…The implication of Bankers acceptance and Time Loan respectively is and was that on the request of the Claimant, his limit was renewed or extended for a specified time period. The facilities mentioned herein were duly accepted by the Claimant and same attracted Defendant’s

charges.”

Another credit balance disclosed on Exhibit AT as at 1/6/2009 was the sum of N16, 018,018. But, looking at the same Exhibit AT, there were further charges on the existing facilities which swallowed up the credit balance and pushed the account back to debit of N77, 628,175.71.

As already shown above, by virtue of Exhibit AD written on June 21, 2010 by the Appellant to the Respondent, the Appellant was well aware of the fact that interests/charges were still running on the account. The credit balance of N38, 106.25 disclosed on 30/5/2009 therefore cannot be relied upon to absolve the Appellant on further liability on the credit facilities he enjoyed from the Respondent.

It is settled that once the defendant admits the indebtedness or receipt of the loan, the burden as to repayment or as to the reasons for non-payment rests on the defendant; Okoli v. Morecab Finance (Nig) Ltd (2007) 14 NWLR (PT 1053) 37. The Appellant did not discharge this burden. The Appellant who admitted Exhibits AL and AM, thereby enjoying the renewal of the facility for N76, 726,502.22, did not prove that he had cleared his indebtedness on the credit facilities,

which included the agreed bank charges/interest.

Upon a calm consideration of the evidence that was adduced before the trial Court, I am of the firm view that the learned trial Judge rightly found and held that the Appellant failed to prove his case on the preponderance of evidence. I also agree with the learned trial Judge that the Respondent proved its counterclaim.

In all, this appeal is without merit and therefore fails. The appeal is accordingly dismissed. The judgment of the Hon. Justice Andrew E. Okon, J., delivered on October 28, 2013 in HU/239/2010 is hereby affirmed.

Costs of N50, 000.00 are awarded in favour of the Respondent against the Appellant.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading in advance the judgment delivered by my learned brother, O. A. OTISI, J.C.A.
I agree with his reasoning and conclusions, white adopting the facts of this case as ably set down in the lead judgment.

I agree that this appeal is devoid of merit and is accordingly dismissed. The judgment of the trial Court delivered on 28th October, 2013 in suit No. HU/239/2010 is affirmed. I also award

N50,000.00 as costs in favour of the Respondent.

PAUL OBI ELECHI, J.C.A.: I have read in draft the Judgment of my Learned brother Onyekachi Aja Otisi, J.C.A. For the reasons ably stated in the lead Judgment, I entirely agree with the conclusion arrived therein that the appeal is without merit and therefore fails and accordingly dismissed.

I also adopt all the Orders made in the said Judgment inclusive of the Order as to cost of N50,000.00 awarded in favour of the Respondents against the Appellants.

Appearances:

S. C. Peters, Esq.For Appellant(s)

A. A. Asuquo, Esq.For Respondent(s)

Appearances:

S. C. Peters, Esq.For Appellant(s)

A. A. Asuquo, Esq.For Respondent(s)

Appearances

S. C. Peters, Esq.For Appellant

AND

A. A. Asuquo, Esq.For Respondent

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