THE REGISTERED TRUSTEES ANACOWA MOTORCYCLE OWNERS & RIDERS ASSOCIATION & ORS v. NUT ENDWELL MICRO FINANCE BANK LIMITED
(2018)LCN/12015(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 25th day of July, 2018
CA/K/430/2017
RATIO
COMMECIAL LAW: CLAIM OF RECOVERY OF LOAN
“Responding and submitting per contra that the learned trial Judge was right in declining to grant leave to defend the suit, learned Counsel submitted that the relationship between a Banker and its customer is contractual founded on negotiations through offer and acceptance, as held in UNION BANK LTD VS OZIGI (1991) 2 NWLR (PT. 175) 677 AT 674 A- B. That the Appellants who signed the 3 memoranda of understanding who are bound by their terms, have not discharged the onus on them that they have repaid the principal loan plus the interest. What the Court is to consider in a dispute between a Banker and its customer in relation to a claim for recovery of loan he submitted, are whether the loan was granted, how much was granted, what was the interest rate and how much if any has been repaid, citing in support the case ofFIRST BANK PLC VS OBEYA (1998) 2 NWLR (PT. 536) 205 AT 219 PARA B; THOR VS FIRST CITY MERCHANT BANK (2000) 4 NWLR (PT. 652) 274.” PER AMINA AUDI WAMBAI, J.C.A.
EVIDENCE: WHERE ORAL EVIDENCE IS REQUIRED
“The law is that a trial Court is not bound to order parties to call oral evidence to resolve conflicts in affidavits where there is before the Court, documentary evidence which can resolve the conflict one way or the other. The calling of oral evidence would be necessary only where the material conflicts cannot be resolved by documentary evidence. It is only then that the Court will be required to invite parties to call oral evidence to resolve the conflicts. See MABAMIJE VS HANI WOLFGANG OTTO (2016) LPELR – 26058 (SC); ATANDA VS AKUNYUN & ORS (1988) 4 NWLR (PT. 89) 394.
Put differently, and in con, under the Summary Judgment Procedure or the undefended list procedure, a conflict between defendants counter-affidavit or averment in the statement of defence and the plaintiffs affidavit or averment in the statement or claim which would require oral evidence to resolve, is that which is material and cannot be resolved by documentary evidence attached to the affidavits or the pleadings before the Court. Similarly, an issue of law or of fact arising from the defendants counter-affidavit or statement of defence which can be resolved by unchallenged and uncontested documentary evidence requires no oral evidence to resolve.” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICE
IBRAHIM SHATA BDLIYA justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI justice of The Court of Appeal of Nigeria
Between
1. THE REGISTERED TRUSTEES ANACOWA MOTORCYCLE OWNERS & RIDERS ASSOCIATION
2. MR. UMAR UMAR MACIMA
3. AMINU UMAR TAJIRI
4. MAHMUD U. ZUBAIRU
5. STELLA U. AJIBOYEAppellant(s)
AND
NUT ENDWELL MICRO FINANCE BANK LTDRespondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
In a summary judgment delivered by Hon. justice D. H. Khobo J., of the Kaduna State High Court on 10/1/2016 in suit No. KDH/KAD/817/2016 which refused to grant leave to the Appellant to defend the suit, the Court entered judgment for the Respondent and granted its reliefs endorsed at paragraph 36 (a) (b) and (d) of the statement of claim for:
36. (a) The payment of the sum of Twenty-One Million Four Hundred and Forty-Five Thousand, Nine Hundred and Forty-One Naira Seventy-Four Kobo (N21,445,941.74) being the outstanding debit balance in the 1st defendants account as at 31/07/2016 through which the defendants applied and successfully obtained the credit facility from the plaintiff and financed the purchase of the 80 units of Tricycles (Kekenapepes) given to its members and beneficiaries and has refused/neglected to repay despite repeated demands.
(b) Payment of the continuous 84% default fee per annum on the balance outstanding as agreed by the parties and divided into 7% per month, payable to the plaintiff monthly from 01/08/2016 until judgment is delivered.
(d) Interest of 10% on the judgment sum from the date of judgment as per rules of this Court.”
Displeased with the decision, the Appellant commenced this appeal, the Notice of which was filed on 17th November, 2016 predicated upon 3 grounds of appeal. M.B. Yusuf Esq., of Counsel to the Appellant, in the Appellants brief of argument filed on 20/12/2017, distilled a sole issue for determination, to wit:-
Whether the Appellants statement of defence at the trial Court disclose any triable issue sufficient enough to warrant leave to transfer the suit to the general cause list.
In the Respondents brief of argument filed on 13/02/2018, Sir Ben Churchill Aniekwe Esq., who settled the Respondents brief of argument identified two issues for determination namely:
1. Whether the learned trial judge was justified in entering judgment for the Respondent under the summary judgment Procedure Rules pursuant to Order 11 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 2007 against the Appellants.
2. Whether the Appellants statement of defence disclosed a good defence on the merits, that leave ought to be granted for the Appellants to defend the suit.
I shall determine this appeal on the Appellants sole issue which encapsulates the Respondents two issues:
Arguing the appeal, the learned Appellants Counsel in submitting that the learned trial Judge was wrong to have declined granting leave to the Appellants to defend the suit, gave a preface to the purpose of the summary judgment procedure as pronounced in the case of UBA PLC VS JARGABA (2009) ALL FWLR (PT. 380) 1419 but pointed out that where the defendants defence discloses a joinder of fundamental trial issues, or a good defence on merit, the defendant ought to be granted leave to defend by transferring the case to the general cause list, citing in support the cases of DANGE SHUNI LOCAL GOVT. COUNCIL VS OKONKWO (2008) ALL FWLR (PT. 415) 1757 AT 1779 D E and KEYSTONE BANK LTD VS J.O.A & S (NIG.) LTD (2015) 1 NWLR (PT. 1439) 98 AT 112 C E, 113 B E.
He referred to paragraphs 12 27 of the statement of defence which he reproduced verbatim to submit that the Appellants therein, raised serious fundamental issues of facts; that the Respondent without notice reversed the agreement by which the defaulting members of the 1st Appellant were made to make direct remittances to the Respondent but the Respondent debited the 1st Appellants account while the defaulters continued to make the direct payment. Similarly, he complained that the statement of account which was neither stamped nor signed, does not disclose the actual percentage of interest chargeable on the 1st Appellants account nor reflect some payments made by the Appellants in reducing the loan.
He then submitted that these issues can only be resolved by oral evidence to explain the entries and how the debit balance was arrived at. For this, he called in aid the case of BILANTE INTERNATIONAL LTD. VS N.D.I.C. (2012) 5 NWLR (PT. 1270) 407, AT 428 429 E B. We were urged to resolve the issue in favour of the Appellants and to grant leave to the Appellants to defend the suit.
Responding and submitting per contra that the learned trial Judge was right in declining to grant leave to defend the suit, learned Counsel submitted that the relationship between a Banker and its customer is contractual founded on negotiations through offer and acceptance, as held in UNION BANK LTD VS OZIGI (1991) 2 NWLR (PT. 175) 677 AT 674 A- B. That the Appellants who signed the 3 memoranda of understanding who are bound by their terms, have not discharged the onus on them that they have repaid the principal loan plus the interest.
What the Court is to consider in a dispute between a Banker and its customer in relation to a claim for recovery of loan he submitted, are whether the loan was granted, how much was granted, what was the interest rate and how much if any has been repaid, citing in support the case ofFIRST BANK PLC VS OBEYA (1998) 2 NWLR (PT. 536) 205 AT 219 PARA B; THOR VS FIRST CITY MERCHANT BANK (2000) 4 NWLR (PT. 652) 274.
That being the law, he argued that paragraphs 18, 19 and 20 as well as paragraphs 13 and 14 of the statement of defence raise no serious or substituted triable issue or good defence since the Appellants admitted paying only N28,242,187.22 as at 31/07/2016, out of the principal sum of N30,000,000.00 plus the interest which adds up to N42,259,435.50 and that Appellants statement of defence, paragraphs 14 17 and 27, can only be appreciated when read along with paragraphs 26 – 32 of the statement of claim.
On the Appellants contention that the statement of account is unstamped and unsigned, Exhibits E1 and E2 not being absolutely inadmissible evidence, the Appellants who did not at the hearing challenge the documents cannot raise the issue on appeal, citing in support the cases of INTERNATIONAL BANK OF WEST AFRICA LTD VS IMANO NIG. LTD & ANR (2001) 5 SCM 91, and DAGGASH VS BULAMA (2004) ALL FWLR (PT. 212) 1666 CA.
On the entries therein, it was submitted that contrary to the Appellants submission on the direct remittances by defaulting beneficiaries, the entries in the said Exhibits E1 and E2 are correct and reflect all transactions involving the Respondents account, thus the Appellants Counsel only over exaggerated the transactions thereon whose submission cannot take the place of pleadings or evidence.
On the averments that the Respondent did not, prior to Exhibits E1 and E2, serve the Appellants with any statement of account or any demand notice, it was submitted that while the first part is an afterthought for there is nothing to show that Appellants requested for and were refused the statement of account, the 2nd part is false having regard to Exhibit F at page 169 which quoted the outstanding balance as N16,044,052.06 and the Appellants reply at page 170 of the record in which the Appellants did not challenge the quoted figure as their indebtedness.
It was then finally submitted that while the Respondent showed a good case, entitling it to the reliefs claimed and granted, the Appellants defence which did not show that the principal loan plus the 84% interest had been repaid, raise no substantial triable issue to warrant the granting of leave to defend, thus the learned trial Judge was right in refusing leave and entering the summary judgment for the Respondent.
In the determination of this issue, it is pertinent to take our bearing from the statutory provision of the Rule of Court which empowers the lower Court to adopt the summary procedure in the disposal of certain class of claims. This is Order 11 of Kaduna State (Civil Procedure) Rules.
By Order 11 Rule 1 of the Rules, a plaintiff who believes that there is no defence to his claim, shall file with the originating process the statement of claim, the Exhibits, the depositions of his witnesses, an application for Summary Judgment, which shall be supported by an affidavit stating the grounds of his believe and a written address in respect thereof. Upon service of the processes on the defendant, a defendant who intends to defend the suit shall not later than the time prescribed by the Rules for filing a defence, file (a) a statement of defence; (b) deposition of witnesses; (c) the exhibits to be used in the defence and (d) a written address in reply to the application for Summary Judgment. Where upon the evaluation of all the parties pleadings the deposition in the affidavits and the Exhibits before the Court pursuant to Rule Order 11 Rule 5 (1), the trial Judge finds that the defendant has a good defence and ought to be permitted to defend the action, the suit is then transferred to the general cause list. See SCIRROCCO INT. LTD VS UNITY BANK PLC (2016) LPELR 40265 (CA); DENTON WEST VS MUOMA (2007) LPELR 8172 (CA).
Where however, the defendant fails or neglects to comply with Rule 4 or does comply but it appears to the Court that the defendant has no good defence to the claim, Summary Judgment may be entered for the plaintiff. See NISHIZAWA VS JETHWANI (1984) 12 SC 334, MACAULAY VS NAL MERCHANT BANK (1990) 4 NWLR (PT. 144) 238.
The Summary Judgment procedure which is analogous to the undefended list procedure is aimed at enabling the plaintiff obtain quick judgment without the normal rigours of a full trial where the plaintiffs case is patently clear and unassailable and the defendant has no genuine defence to the claim. It is however, not intended or designed to shut out the defendant who can show that there is a triable issue. NKWO MARKET COMMUNITY BANK (NIG) LTD VS OBI (2010) 14 NWLR (PT. 1213) 169 SC; AKPAN VS AKWA IBOM PROPERTY INVESTMENT CO. (2013) LPELR 20753 (SC).
In determining whether a defendant has a good defence to the plaintiffs action or has disclosed a triable issue or such sufficient facts as to entitle him defend the action, it is not necessary at that stage for the defendant to show a complete defence or an iron cast defence, or for the Court to decide at that stage whether the defence has been established.
What is required of the trial Judge at that stage, is to look at the pleadings, the facts deposed in the affidavits or the witnesss depositions as the case may be, together with the Exhibits placed before it and see if prima facie, they raise a triable issue or afford a defence to the action. It suffices if the defence set up ex-facie shows that there is a triable issue or that for some reasons, there ought to be a trial. See OLUBUSOLA STORES VS STANDARD BANK OF NIG. LTD (1975) U SC 51; NMCB (NIG) LTD VS OBI (Supra); EBONG VS IKPE (2002) 21WRN 56.
Generally, where the defendant raises a triable issue, or issues which throw some doubts about the plaintiffs claim or would require the plaintiff to offer explanation which cannot and should not be given a wave of the back hand or would require a further investigation to unearth the veracity of the plaintiffs claim, or even set up a defence or a fair probability that he has a bona fide defence, he ought to be granted leave to defend. See ALH. A. HAIDO & ANOR VS ALH.S. USMAN (2004) 3 NWLR (PT. 859) 65; MUOBIKE VS NARIGWU (2001) 1 NWLR (PT. 642) 620, 636.
However, a mere denial, it must be emphasized, does not constitute a good defence. For the defendant to be granted leave to defend the plaintiffs claim under the summary judgment procedure, he must show a good defence and not just a mere denial. Edozie JSC in the case of ATAGUBA & CO. VS GURA (NIG.) LTD (2005) ALL FWLR (PT. 256) 1219 AT 1230 had this to say:
”The defendants affidavit in support of the notice of intention to defend must disclose a prima facie defence. The affidavit must not contain merely a general statement that the defendant has a good defence to the action. Such a general statement must be supported by particulars which if proved, would constitute a defence. It is sufficient if the affidavit discloses a triable issue or that a difficult point of law is involved; that there is a dispute as to the fact which ought to be tried, that there is a real dispute as to the amount due which requires the taking of an account to determine or any other circumstances showing reasonable grounds of a bonafide defence.”
In support of its application for summary judgment, the Respondent deposed to a 43 paragraph affidavit deposing to the facts averred in the statement of claim. Several Exhibits were annexed.
The relevant paragraphs of the statement of claim, paragraphs 19, 21, 23, 24, 27, 31 and 33 are hereunder reproduced:
19. The plaintiff avers that on the whole, it had the sum of N30,956,325.00 disbursed into the 1st Defendant account No. 030303622 through which the defendants obtained the plaintiff to finance the credit facility for the purchase of the 80 units of Tricycles (Kekenapepes) obtained by the defendants and distributed to some of themselves and/or their members on Hire Purchase.
21. The plaintiff avers that following the agreements reached by the parties in the Memorandum of Understanding for the finance of the credit facility for the purchase of the 80 units of the Tricycles at an interest rate of 34%, further 34% and 40% per annum for the 1st, 2nd and 3rd batches of the Tricycles respectively, the plaintiff were thus entitled from the defendants, the repayment of the sum of N42,259,435.50 on the transaction as agreed by the parties and financed by the plaintiff.
23. The Plaintiff also avers that following all credit and debit entries of the Defendants and its members as transactions involving the 1st defendant account No. 030303622 of Cute Banking Software and now Account No. 1100043146 of Bank 1 Software, which the defendants opened and used to obtain the credit finance by the plaintiff for the purchase of the 80 units of the Tricycles the defendants have in the said Account the sum of N21,445,941.74 standing in debit/deficit balance as at 31/07/2016.
24. The plaintiff avers that under the agreement that financed the transaction the plaintiff were entitled from the defendants 84% per annum on the outstanding balance, which thus becomes payable to the plaintiff as Default Fee where for the defendants defaulted in not repaying the Principal Loan and the interest thereon within the stipulated duration of 12 months which put together terminates on 14/08/2015 being the date the loan facility and particularly the finance of the last batch of the Tricycles would have terminated.
27. The plaintiff avers that in view of the continuous refusal of the defendants in fully not re-paying back the loan after the expiration of the tenure and the defendants plea for extension of the period of repayment, led the plaintiff issuing a Demand Notice Letter to the defendants through the 3rd defendant (the current Chairman and a Principal Officer of the 1wst Defendant) which was duly served and acknowledged by the 4th defendant being the Secretary to the 1st Defendant. The plaintiff hereby pleads the Letter of Demand dated 11/02/2016 and shall rely on same at the trial of this suit.
31. The plaintiff avers that as part of the consideration for the extension of the repayment of the facility from 05/09/2015 to 31/12/2015, beneficiaries of the 2nd and 3rd batches of the Tricycles were thus re-directed as originally at the earlier on stage agreed, to open individual ledger accounts and make direct lodgments of the loan repayment into the said accounts and the balances be transferred to the 1st defendants account, which the plaintiff did and reflected accordingly.
33. The plaintiff avers that despite its earlier Letter of Demand, followed by a subsequent Letter of Demand Notice dated 11/02/2016 including the magnanimous consideration and extension of the repayment of the credit facility that financed the Hire Purchase of the 80 units of the Tricycles for the defendants beneficiaries and benefited also by some of the defendants, the defendants has neglected and/or refused to repay to the plaintiff the outstanding balance of N21,445,941.74 standing in debit as at 01/08/2016 in the 1st defendants Bank Account used by the defendants to obtain the credit facility from the plaintiff.”
In reaction, the Appellant also filed a 33 paragraph counteraffidavit with 5 annexures, Exhibits A – E, deposing to the facts in the statement of defence. The relevant paragraphs of the statement of defence are paragraphs 12 27 as follows:
12. The 1st defendant states that notwithstanding paragraphs 7, 8, 9, 10 and 11 above the total money credited as loan to its accounts was N30,956,325 (Thirty Million Nine Hundred and Fifty Six Thousand Three Hundred and Twenty Five Naira Only) by the plaintiff for the purchase of the (80) Eighty Units of tricycles and that as at 5th September, 2015 the 1st defendant had deposited a total sum of N25,977,907.17 (Twenty Five Million Nine Hundred and Seventy Seven Thousand, Nine Hundred and Seven Naira Seventeen Kobo Only) to its account and this is evidenced in the plaintiffs letter dated 22nd October, 2015 leaving the total balance of N4,978,418.17 of the principal loan granted to the 1st defendant. The defendants shall rely on the plaintiffs letter of 22nd October, 2015 and same is hereby pleaded.
13. The 1st defendant pleads that the total cash deposited from the 8th October, 2015 to 29th December, 2015 is to the tune of N863,900.00 (Eight Hundred and Sixty-Three Thousand, Nine Hundred Naira Only) as evidenced by the statement of account annexed to the plaintiffs pleadings which accumulated to the total sum of N26,841,807.17 (Two Million Eight Hundred and Forty One Thousand, Eight Hundred and Seven Naira (sic)) paid as at 29th December, 2015.
14. That the 1st defendant avers that sometime December, 2015 the plaintiff called an urgent meeting with the 1st defendants staff and all the defaulted beneficiaries of the tricycles wherein it was agreed that the defaulted beneficiaries shall redeem their individual outstanding debt owed to the 1st defendant to the plaintiff directly.
15. The Plaintiff thereafter credit the 1st defendants account in the name of defaulters in various sums as reflected on the transaction of 31st December, 2015 in the statement of account annexed to the plaintiffs process to redeem the loan of the 1st defendant and subsequently the beneficiaries accounts debited to enable the redeem the 1st defendants loan.
16. The 1st defendant avers that majority of the beneficiaries have been making direct payments to their accounts pursuant to the agreement reached at the meeting. The plaintiff is put on notice to produce at the hearing of this suit the individual statement of account of the beneficiaries as reflected on the transaction of 31st December 2015 in the statement of account annexed to the plaintiffs processes. The defendants shall rely on deposit slip numbers 56341, 57276 and 58233 of the plaintiffs paid by Abdulrashid Haruna Kubarachi to his account to the tune of N44,000.00 (Forty Four Thousand Naira Only) and is hereby pleaded.
17. The 1st defendant also avers that without prior notice, the plaintiff reversed the earlier agreement made with the defaulted beneficiaries on 29th of January, 2016 and debited the 1st defendant account with the sum of N16,749,994.00 (Sixteen Million Seven Hundred and Forty Nine Thousand, Nine Hundred and Ninety Four Naira Only).
18. The defendants avers that from 5th February, 2016 to 31st July, 2016 its accounts with the plaintiff has been constantly credited and the sum total of all credit transactions is to the tune of N1,400,380.05 (One Million Four Hundred Thousand Three Hundred and Eighty Naira Five Kobo Only) making the total payments made into the account in redeeming the loan a total of N28,242,187.22 (Twenty Eight Million Two Hundred and Forty Two Thousand One Hundred and Eighty Seven Naira Twenty Two Kobo Only).
19. The defendant states that the plaintiff did not give the breakdown analysis of the statement of account annexed to the statement of claim to enable the Court arrive at the percentage charge and how N21,445,941.74 (Twenty One Million Four Hundred and Forty Five Thousand Nine Hundred and Forty One Naira Seventy Four Kobo Only) was arrived as outstanding balance.
20. The 1st Defendant states that the plaintiff has not been sending its statement of account to it despite repeated and persistent demands to enable it challenge the entries in the statement.
21. The 2nd to 5th shall contend at hearing of this suit that they were not given statutory notice for the indebtedness (if any) to enable them reconcile the 1st defendants account with all the lodgments made therein.
22. The defendants avers that prior to their knowledge of this suit, there are payments made into the 1st defendants account, in fulfillment of their obligations which were never reflected in the statement of account.
23. The defendants state that the interest rate chargeable on the 1st defendants account does not reflects on the 1st defendants statement of account annexed to the plaintiffs processes.
24. The defendants avers that the debit of interest in the statement of account supplied by the plaintiff is contrary to the interest agreed by the parties and contrary to Central Bank of Nigeria fixed rate in respect of Micro Finance Bank loans.
25. The 1st defendant shall contend at the hearing that the plaintiff have been fraudulently charging interests on its account without indicating the percentage of the interest charged therein.
26. The 2nd to 5th defendant shall contend at the hearing of this suit that the plaintiff never served them any demand notice of the outstanding amount against the 1st defendant to enable them know the extent of their liabilities.
27. The defendants shall contend at the hearing of this suit that the plaintiff is not entitled to any of the relief being claimed by it in this suit and shall therefore urge this Honourable Court of justice to dismiss same for being frivolous, gold digging, vexatious and unwarranted.”
The summary of the defences or issues raised by the Appellant in denying the sum of N21,445,941.74 as the outstanding balance by the Respondent against them, are that a demand Notice was not served on them; that despite the payment of N28,242,187.22 as at 31st July 2016 out of the N30,000,000.00 loan facility, the Respondent still claims N21,445,941 as the balance; that without notice of the reversal of the agreement of the beneficiaries direct payment to the Respondent, the Respondent debited the Appellants account with the sum of N16,749,994.00; that prior to Exhibits E1 E2 inspite of persistent demands they were not issued with any statement of account to enable them challenge the entries; that Exhibits E1 E2 filed along with the case do not reflect some payments made by the Appellants and does not show the breakdown of how the figure was arrived at or the interest rate chargeable and that the debit interest therein is contrary to agreed interest.
The law is that a trial Court is not bound to order parties to call oral evidence to resolve conflicts in affidavits where there is before the Court, documentary evidence which can resolve the conflict one way or the other. The calling of oral evidence would be necessary only where the material conflicts cannot be resolved by documentary evidence. It is only then that the Court will be required to invite parties to call oral evidence to resolve the conflicts. See MABAMIJE VS HANI WOLFGANG OTTO (2016) LPELR – 26058 (SC); ATANDA VS AKUNYUN & ORS (1988) 4 NWLR (PT. 89) 394.
Put differently, and in con, under the Summary Judgment Procedure or the undefended list procedure, a conflict between defendants counter-affidavit or averment in the statement of defence and the plaintiffs affidavit or averment in the statement or claim which would require oral evidence to resolve, is that which is material and cannot be resolved by documentary evidence attached to the affidavits or the pleadings before the Court. Similarly, an issue of law or of fact arising from the defendants counter-affidavit or statement of defence which can be resolved by unchallenged and uncontested documentary evidence requires no oral evidence to resolve.
In the instant case, the Appellants averment that they were not served with demand letter requires no oral evidence to resolve nor raises any issue of dispute same having been belied and resolved by the unchallenged and uncontested Exhibit B dated 22/10/2015 which was replied to by the Appellants in a letter written on 25/11/2015, and Exhibit F dated 11/02/2016 titled Final Demand Notice the receipt of which was acknowledged by one Mahmud Usman, the Appellants Secretary.
Exhibit B shows the breakdown of the loan and how the figure of N16,044,052.06 demanded as the outstanding balance as at 22/10/2015, was arrived at. This figure was not challenged by the Appellants. The law is settled and clear that where a Bank makes demands for settlement of debt by letters and the amount of debt is contained in the letter and the debtor does not query the figure written in the letter as the overall debt due but rather writes letters in response explaining the reasons for non-payment of the debt, or refuses to respond at all, the debtor will be deemed to have impliedly admitted the quoted figure as the amount of debt due. See the decision of this Court in NAGEBU COMPANY (NIG) LTD VS UNITY BANK PLC (2014) 7 NWLR (PT. 1405) 42, 81 and KARIMAT GLOBAL TRADE LINKS LTD & ANOR VS UNITY BANK PLC (2014) LPELR 23986 (CA) and INTIME CONNECTION LTD VS ICHIE (2008) LPELR 8772 AT PAGE 20 PARA D G.
Failure to react to the figure quoted in the demand letter leads to a presumption of admission by conduct. The Appellants must thus be deemed to have admitted their indebtedness to the Respondent as at 22/10/2015 to be N16,044,052.06 quoted in Exhibits B and F in consonance with paragraph 29 of the statement of claim.
The Appellants have however raised issues not only on the N21,445,941 figure by the Respondent as the outstanding balance against them as at 1st August, 2016 contained in Exhibits E1 and E2 (the statements of account), but also on the correctness and comprehensiveness of their contents. The issues relating to the reversal of the direct remittance of the loan by the beneficiaries and the Respondent debiting the Appellants account with the sum of N16,749,999.00 without notice, the issue of lodgments made by the Appellants into the account but not reflected in Exhibits E1 and E2; the issue of the interest rate not indicated in Exhibits E1 and E2 all put to question the actual outstanding balance against the Appellants as at 01/08/2016, or put differently, how the sum of N21,445,941.74 claimed as the outstanding debit balance in Exhibits E1 and E2 emerged.
Though parties are agreed on the interest rate as contained in contract agreements, there is no indication on the face of Exhibits E1 and E2 the interest rate utilized or computed by the Respondent before arriving at the figure. An explanation is required as it cannot be assumed. This is so because the interest rate used in arriving at the debit balance in the customers account must be conspicuously shown in the customers statement of account and if not shown, for the Bank to establish or convince a Court of law how the figure was arrived at, the Bank has an obligation to offer oral evidence by its official acquainted with the account, how the figure was arrived at. That explanation cannot be offered by Counsel nor can the figure be assumed by the Court. Obviously, these issues raised by the Appellant which Exhibits E1 and E2 confirm, creates uncertainty as to the actual debit outstanding against the Appellant and calls for further explanation by the Respondent.
There is said to be a triable issue when the defendants affidavit in support of Notice to defend or averment in statement of defence as in this case, requires the plaintiff to explain certain matters with regard to his claim, or throw some doubt on the claim which cannot and should not be given a wave of the back handed but requires a further investigation by the Court to unravel the veracity or otherwise of the claim. See ALH. A. HAIDO & ANOR VS ALH. S. USMAN (2004) 3 NWLR (PT. 859) 65; MOUBIKE VS NWIGWE (2001) 1 NWLR (PT. 642) 620 AT 636.
Let me here re-echo the law that in determining whether a defendant should be granted leave to defend the action, the defendant needs not show that his defence would succeed or show an iron cast defence. At this stage, the defendant is not expected to show a complete defence. He is only required to show that prima facie, he has a defence to the plaintiffs action and the duty of the Court is only to look at the processes to see if a triable issue is raised. In doing this, the Courts are enjoined to adopt a liberal approach in order not to shut out a defendant with a good defence. See NMCB BANK (NIG) VS OBI (Supra); NYA VS EDEM (2000) 8 NWLR (PT. 669) 349.
Furthermore, the law is firmly established that the production of a statement of account alone, without oral evidence to prove how the debit balance is arrived at is insufficient as proof of the customers indebtedness. InBILANTE INTERNATIONAL LTD VS N.D.I.C. (Supra) at 428-429 paragraphs A B, E B Fabiyi JSC held that:
”In order for a claim of a debt outstanding in a customers account with a Bank to succeed, the Bank has to prove how the debit balance claimed from the customer was arrived at. The bank has to demonstrate through oral evidence given by an official who is familiar with the accounts, how the debit balance was arrived at.”
Undoubtedly, where the actual indebtedness of the customer to the bank is disputed or the correctness of the entries in the statement is in issue, the bank has an obligation to demonstrate through oral evidence by its official acquainted with the accounts, to offer oral evidence of the analysis of how much of it is interest and how the balance was arrived at See BIEZAN EXCLUSIVE GUEST HOUSE LTD V. UNION HOMES SAVING & LOANS LTD (2011) 7 NWLR (Pt. 1246) 246; YUSUF V. AFRICAN CONTINENTAL BANK (1986) 1-2 SC; HABIB NIG. BANK LTD V. GIFT UNIQUE (NIG) LTD (2004) 15 NWLR (Pt. 896) 405; WEMA BANK V. OSILARU (2008) 10 NWLR (Pt. 1094) 150.
In view of the foregoing, the learned trial Judge was wrong in the face of these apparent triable issues to have declined to grant leave to the Appellant to defend the suit. The law is and has been as stated per Muhd JSC in N.M.C.B. (NIG) LTD VS OBI (Supra), that it is always better on the side of justice to let in a defendant who has shown that he has arguable or triable issue to defend the suit by transferring the suit to the general cause list.
This I shall do the learned trial Judge having not done so, for I do not subscribe to his conclusion that the Appellants have no good defence to the action. Accordingly, I resolve the issue in favour of the Appellant, allow the appeal, set aside the decision of the lower Court and in its place, remit the case to the Chief Judge of Kaduna State to be reassigned to another Judge to be tried on pleadings. Parties shall bear their cost.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree with the reasons contained in the lead judgment that the appeal is meritorious and most succeed. I accordingly allow the appeal, and abide by the order made by AMINA AUDI WAMBAI, J.C.A. remitting the suit No.KDH/KAD/817/2016, to the Chief justice, Kaduna State for a trial on the merit, by a judge of the Court other than D.H.Khobo, J.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, Amina Wambai, JCA and I am in agreement therewith. I also allow the appeal and set aside the decision of the lower Court, remitting the case to the Chief Judge of Kaduna State for reassignment to another judge of the High Court for hearing on the merits. Parties shall bear their respective costs.
Appearances:
M. B. Yusuf, Esq. For Appellant(s)
Sir Ben Churchill A. Esq.For Respondent(s)
