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(2019) LPELR-47960(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 2nd day of July, 2019


Before Their Lordships

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria


MRS. ADEBOLA NEJO - Appellant(s)


4. ENGR. NIRAN BADEJO - Respondent(s)

Other Citations

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This appeal borders on Civil Procedure.

This is an appeal against the decision of the High Court of Lagos State. The fountainhead of the action was in the banker/customer relationship between the Respondents. The Appellant was the mother of the 3rd Respondent and mother in law of the 4th Respondent. In the normal course of banking, the 1st Respondent granted two facilities to the 2nd-4th Respondents. The collateral provided for the second facility was an equitable mortgage by deposit of the title deeds of the property belonging to the Appellant. There was default in the repayment of the facility, consequent upon which the 1st Respondent instituted proceedings against the 2nd-4th Respondents. The Appellant was later joined as a party to the action and she set up a counterclaim against the 1st Respondent.

The 1st Respondent as the Claimant in the action before the High Court of Lagos State in SUIT NO. ID/1166/2009: ACCESS BANK PLC vs. NIRACON ENGINEERING NIG. LTD & ORS. claimed the following reliefs:
???"(a) WHEREFORE the Claimant claims jointly and or severally against the 1st, 2nd and 3rd Defendants for the sum of N13,551,560.00k (Thirteen Million Five Hundred and Fifty One Thousand Five Hundred and Sixty Naira) only as at 30th April, 2009 being the total sum due and payable by the Defendants either jointly and or severally to the Claimant as a result of the N2.5 million Temporary Overdraft Facility granted to the Defendants by the Claimant Bank and the N10million Bank Guarantee the Claimant Bank equally granted to them in favour of Celtel Nig Ltd (now Airtel Nig Ltd)
(b) Compound Interest Rate of 19.5% per annum from 01/05/2009 until Judgment and thereafter at the same rate and condition until the final liquidation of the entire debt plus a Penal Interest Rate Charge of Default at 1% per month as per the parties Offer and Acceptance Letter of 28th June 2007.
(c) An Order of this Honourable Court directing the disposal/sale of the 4th Defendant Property located at Olufade Crescent, Behind Kolak Filing Station, Off Ikoya Road, Okitipupa, Ondo State (and not No 1 Ibitola Street, Ore, Ondo State which was the 4th Defendant former residential address) registered as No 44 at Page 44 in Volume 678 of 9th June 199 at the Land Registry office at Akure in Ondo State which was used as part of the Equitable Mortgage
collateral for the N10million Bank Guarantee facility that was granted to the 1st Defendant as contained in the Offer and Acceptance Letter of 18th January 2007. The Original of the Property Title Document is in the custody of the Claimant Bank.
(d) Cost of this action and Solicitors Fees to be borne by the Defendants."

The Appellant's counterclaim against the 1st Respondent was for the following reliefs:
"a. A declaration that the Claimant should return the 4th Defendant Original Certificate of Occupancy, Registered as No. 44 at Page 44 in Volume 678 on the 9th June, 1999 at the Land Registry Office at Akure in Ondo State to the 4th Defendant.
b. A declaration that cost of this action and Solicitors fees should be borne by the Claimant."

The action was subjected to a full dressed hearing and in its judgment, the High Court dismissed the counterclaim and entered judgment in favour of the 1st Respondent for the reliefs it claimed. Dissatisfied, the Appellant appealed to the Court  of Appeal.

The Court determined the appeal on this sole issue it couched as follows:

"Whether based on the preponderance of evidence and balance of probabilities, the lower Court rightly entered judgment against the Appellant."

On the whole, the Court found merit in the appeal and accordingly allowed same. The decision of the High Court was therefore set aside.

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