AFOLABI KASALI v. ACCESS BANK PLC

CORAM

UGOCHUKWU ANTHONY OGAKWU

PARTIES

AFOLABI KASALI(Trading under the name and Style of Madagula Ventures) APPELLANTS

ACCESS BANK PLC RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The case of the Appellant is that he took a loan facility of N2.5 Million from the Respondent and he used his property at No. 78 Odole Junction Akure, as collateral, and handed over the property documents to the Defendant. He was later unable to repay the loan which he took for the purpose of improving his business and felt that he had repaid up to N2 Million out of the loan and that there were disagreements between him and the Respondent on his outstanding indebtedness. He claimed he was not given his statement of account, so he challenged the interest rate charged and denied he owed up to N3.9 Million the Respondent was claiming from him. On the Respondent part, it claimed that it had to restructure the Appellant’s outstanding debt as a term loan with an interest of 23% on 25th July 2006 (as per Exhibit 5) when he could not pay as and when due. That, thereafter, the Appellant still neglected to offset his indebtedness, which later skyrocketed to the sum of N3, 972,306.44k. Through a letter dated 1/7/2008 (Exhibit 10), the Appellant requested the Respondent that he is allowed to pay the sum of N800, 00.00 (Eight Hundred Thousand Naira) as full and final payment of the loan but the arrangement was not agreeable to the Respondent. The Appellant later refused to service the facility and abandoned the account. The Respondent issued letters of demand to the Appellant to notify him of the status of his indebtedness. In spite of this, the Appellant still did nothing to service the facility, hence the decision by the Respondent to auction off the said property. The Appellant sued the Respondent at the High Court of Justice, Ondo State sitting at Akure, claiming against the Respondent via his Amended Writ of Summons and Amended Statement of Claim a declaration that the right reserved by the Defendant to dispose the mortgage property of the Plaintiff under the credit facility either by public or private treaty without any notice to the Plaintiff is oppressive, onerous, arbitrary, illegal and contrary to Auctioneers Laws cap 9 Law of Ondo State of Nigeria 1978 and that the unilateral review of interest rates on the credit facility resulting in the sudden ballooning of the purported outstanding balance of the facility and the continued charging of the said rate of interest after the expiration of 90 days tenor is illegal, void and without effect, amongst other reliefs. At the end of the trial at the Lower court, the learned trial Judge refused the Appellant’s claims but granted the amount claimed in the Respondents counter claim with interest but refused to grant the foreclosure of equity of redemption and restrained the Respondent from disposing of the Appellant’s property situate at No. 78 Odole Junction Oke-Aro Akure. Dissatisfied with this judgment, the Appellant filed a Notice of Appeal with a sole ground of appeal to this Court. The Respondent raised a preliminary objection to the Appellant’s sole ground of appeal on the ground that the issue raised thereon is incompetent being a complaint on questions of facts or at best mixed law and facts for which leave of the High Court or the Court of Appeal ought to have been sought and obtained.
:

HELD

Appeal Struck Out

ISSUES

Whether the lower Court was right in awarding to the Respondent the sum of N3,972,306.44 (Three Million, Nine Hundred and Seventy-Two Thousand, Three Hundred and Six Naira and Forty-Four Kobo) claimed in counter claim when there was no sufficient evidence to establish same.

RATIONES DECIDENDI

GROUND OF APPEAL – DETERMINATION OF WHETHER A GROUND OF APPEAL IS ON LAW, MIXED LAW AND FACT OR PURELY A GROUND OF FACT

“It is the law that in determining whether a ground of appeal raises a question of law alone or of facts the Court is required to examine thoroughly the ground of appeal together with its particulars, in order to see whether the ground reveals a misunderstanding of the law by the lower Court, or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law. Where however, the ground is such that would require questioning the evaluation of facts by the lower Court before the application of the law, that would amount to question of mixed law and fact. Ground of appeal, which raises facts, which needed to be determined either way, is a ground of fact. See Onifade V. Olayiwola (1990) 7 NWLR (Pt. 161) 130; Olanrewaju V. Ogunleye (1997) 2 NWLR (Pt. 485) 1-2; Shanu V. Afribank (Nig) Plc. (2000) 10 – 11 SC 1; Maigoro v. Garba (2001) WRN 1 at 4; Ibiyeye V. Fujule (2006) 3 NWLR (Pt. 968) 640”. –

GROUND OF APPEAL – CONSEQUENCE OF FAILURE OF AN APPELLANT TO OBTAIN LEAVE OF COURT WHERE A GROUND OF APPEAL RAISES QUESTIONS OF MIXED LAW AND FACT

“This is because it is trite that where a ground of appeal raises questions of mixed law and fact, leave of Court is required to argue it. Therefore, failure by the Appellant to obtain the necessary leave will make the ground incompetent and be liable to be struck out”. –

INTEREST – PROPRIETY OF AN UNSETTLED OVERDRAFT FACILITY GRANTED BY A BANK TO ATTRACT INTEREST

“The law is that where a customer takes out an overdraft facility and fails to pay back as per the terms of the grant and at the same time refused to operate the account causing it to remain dormant he cannot complain on the interest charged on the outstanding indebtedness during the period his account remains dormant. This is so because the Defendant did not cause his account to be dormant. Secondly it is settled law that by the practice, usage and custom of banking, banks do as long as there is loan or overdraft facility which remains unsettled, it must attract interest either as per the agreement at the time of the grant of the facility or following practice, usage and custom of banking institutions.
Per Okoro JCA in the case of United Bank for West Africa Ltd & Anor V. M. A. Lawal (2007) LPELR 9042 CA .”