Legalpedia Citation: (2023-07) Legalpedia 58460 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISION

Thu Jul 20, 2023

Suit Number: CA/K/616/2017

CORAM

Chidi Nwaoma Uwa JCA

Mohammed Baba Idris JCA

Muslim Sule Hassan JCA

PARTIES

FIRST BANK OF NIGERIA PLC

APPELLANTS

G.N. INVESTMENT LTD

RESPONDENTS

AREA(S) OF LAW

APPEAL, BANKING, EVIDENCE, PRACTICE AND PROCEDURE, PROPERTY LAW

SUMMARY OF FACTS

The Respondent as claimant before the trial said that she is a customer of the Appellant. By virtue of good inflow of funds into her account, the Appellant bank in 2010 offered her an overdraft facility of N10,000,000.00.

The Respondent claims that the overdraft facility which she agreed with the bank had conditions of guarantee and in that line she secured the facility with her property located at Tsuni Kura Residential layout, kaduna. That in the year 2014, the Appellant bank wrote a demand letter to the Respondent demanding that she upset the debt of over Nine Million Naira she owes the Appellant bank from the overdraft facility granted to her in 2010 and she replied acknowledging she would pay and requested for her statement of Account from 2010 to 2014. Upon being availed her statement of account by the Appellant bank, she perused same and discovered that the Appellant bank never disbursed the N10,000,000 overdraft into her Account No. 2013086622 in the first place as there was nowhere in the account where the sum of N10,000,000 was credited. Upon that discovery, the Respondent wrote the bank and notified her that she is not indebted to her, and demanded for the return of her landed property documents used to secure the overdraft.

That the Appellant bank in turn wrote her and now demanded for the payment of Eleven Million Naira and threatened to sue the Respondent. That meanwhile, the Appellant bank had been bringing buyers to the property of the Respondent and had even warned tenants not to pay rent to the Respondent. It is based on this concerns and the fact that the Respondent discovered that the Appellant never even granted her any overdraft, that the Respondent initiated the suit at the lower court.

The Appellant on the other hand refuted the claims by saying that the Respondent applied for overdraft facility with the bank which was granted to the Respondent paid into Respondent’s Account No. 2013086622 formerly Account No. 6232030000347 and also that the overdraft facility was not just secure by the tripartite mortgage but by the letter of offer which was accepted by the Respondent. That the Respondent having failed to repay the overdraft facility had in 2011 applied twice for the renewal of the overdraft facility to enable her pay up. The Appellant mentioned and produced dated cheques by which the Respondent overdrew her Account and insisted that the Respondent is indebted to the bank having failed to repay.

The Trial Court upon hearing both parties held that the Respondent had not established by evidence before the court that One Hundred and Eleven Million was withdrawn by the Appellant from her Account, and that the Appellant has not also establish by evidence that she granted any overdraft facility to the Respondent. The court made order mandating the Appellant to return to the Respondent the title documents (granting the Appellant’s Counter claim in part and also the Respondent’s claim in part).

Aggrieved by this decision, the Appellant bank filed this appeal which was cross appealed by the Respondents who were equally dissatisfied with the decision of the trial court.

HELD

Appeal dismissed

Cross Appeal dismissed

ISSUES

Whether having regards to the pleadings and evidence before him, the learned trial judge was right to hold that the Respondent is not in any way indebted to the Appellant?

Whether the learned trial Judge was right in dismissing the Appellant’s Counter claim without any proper considerations?

Whether having regards to the pleadings and evidence before the trial Court, the learned trial judge was right to hold that the Cross Appellant failed to discharge the burden of prove on its claim for unauthorized withdrawals of N111,684,571.00k from its account?

 

RATIONES DECIDENDI

BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL MATTERS

First, it is settled law that he who asserts the positive of a thing or pleads the existence of a particular fact has the burden of proving same.  – Per M. S. Hassan, JCA

COUNTER CLAIM – WHETHER A COUNTER CLAIM IS A DIFFERENT CASE FROM A SUBSTANTIVE SUIT

I agree with counsel that a counter claim is a different case from a substantive suit and a trial court must consider it on its merit distinctively from the main suit. I disagree completely with the respondent counsel that if the court considers the counter claim distinctively it mean the court would deliver two distinctive judgments because indeed a counter claim is a distinctive matter from the main suit.  – Per M. S. Hassan, JCA

COURTS – CONDUCT OF COURTS WHEN THE SAME PIECE OF EVIENCE IS RELIED UPON IN DEFENCE AND COUNTER CLAIM

The trial court is allowed to rely on her findings in the main suit as she did when she found and established already that the documentary evidence tendered by DW1 and his oral evidence did not establish that the Appellant granted overdraft to the Respondent. This is especially in this case as the same piece of evidence Appellant used to defend the Plaintiff suit to the fact that she granted her overdraft facility is the same set of documents she is relying on for the counter claim. – Per M. S. Hassan, JCA

COURTS – CONDUCT OF COURTS REGARDING EVIDENCE NOT ELICITED BY A PARTY

This court cannot go fishing through the volumes of Statement of Accounts tendered and forming part of the record of this court to look for evidence which was not elicited by the Appellant. That would amount to diving into the conflict between the Appellant and the Respondent which is not allowed in law. – Per M. S. Hassan, JCA

CASES CITED

NOT AVAILABLE

STATUTES REFERRED TO

1.  Evidence Act

CLICK HERE TO READ FULL JUDGMENT