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(2018) LPELR-44069(SC)

In The Supreme Court of Nigeria

On Friday, the 23rd day of March, 2018


Before Their Lordships

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria


CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria




2. MR. L.K. AYINDE - Respondent(s)

Other Citations

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This appeal borders on contract.

This is an appeal against the decision of the Court of Appeal Ilorin wherein the decision of the trial High Court was set aside thereby ordering the appellant to refund the sum of N179,805.00 to the respondent.

The 1st respondent herein (plaintiff at the trial Court), as the owner of a business centre known as Amusement International Guest House Ltd., on 10th September 1996, secured a loan of N600,000.00 from the appellant. The facility was secured with his landed property situate at No. 11, Adamu Road, Off Taiwo Road, Ilorin, covered by a statutory Right of occupancy No. KW 7052. The parties duly executed a deed of mortgage wherein it was stipulated that the interest on the loan shall be per annum. It was the 1st respondent's contention that not only had he repaid a total sum of N826,476.00 to the Appellant, he had in fact made an over-payment of N179,905.00 between October 1998 and March 1999. He set out in his pleadings the schedule of repayments. It was also the appellant's contention that although the parties originally agreed that the loan would be repaid within one year, it was later agreed that the repayment would be extended beyond one year. The 1st respondent's case was that notwithstanding fully liquidating the loan with the accrued interest, the appellant and the 2nd respondent sought to auction the mortgaged property by virtue of an auction notice published in the Tribune Newspaper of 2/2/1999. It was also the 1st respondent's contention that notwithstanding an order for injunction obtained by him and served on the appellant and 2nd respondent on 9/3/1999, the 2nd respondent pasted an auction notice on the property on the instruction of the appellant.
By his Further Amended Statement of Claim, the 1st respondent (as plaintiff) sought the following reliefs against the appellant and 2nd respondent (the auctioneer):
1. A declaration that the notice of sale by auction contained in the Nigerian Tribune Newspaper of 2/2/99 and the notice of sale by auction pasted on 11/3/99 are null and void.
2. A declaration that the defendants are not entitled to auction the building of the plaintiff who does not owe the 1st defendant.
3. A declaration that non-disclosure of the plaintiffs statement of account and non-demand of a correct outstanding debt does not entitle the defendants to auction the plaintiff's property.
4. A declaration that under the Money Lenders Law, the 1st defendant is not entitled to charge excessive interests on loans.
5. An injunction restraining the defendants, their agents, servant or privies from auctioning, selling or doing anything whatsoever with the said plaintiff's landed property situate at No. 11 Adamu Road Off Taiwo Road, Ilorin.
6. An order that the defendant should refund to the plaintiff the overpayment N179,805.00 paid by him to the 1st defendant.
7. An order that the 1st defendant should release to the plaintiff his Certificate of Occupancy (C of O) No. KW 7052.

The appellant filed an Amended Statement of Defence and counter claim wherein it was averred that the terms of the agreement for the credit facility were contained in a letter dated 10th September 1996 and that the 1st respondent accepted all the terms pursuant to which the facility was fully disbursed to him between 10th September 1996 and 28th October 1996. It was also its contention that the said terms included interest on the loan at the rate of 3% per month, service charge and all other legitimate dues as approved by the controlling authority and that the loan and charges were to be fully liquidated within 12 months. It was the further contention of the appellant that the sum of N80,661.99 paid by the 1st respondent on 28/10/1996 was in respect of a different facility. That as at 30th November 2000, the 1st respondent's indebtedness to it stood at N861,110.00 and had risen to N1,466,802.00 by 31st May 2002. It was the appellant's contention that the 1st respondent never disputed the amount of his indebtedness as stated in demand notices sent to him and that at a point in time, through his solicitors, he not only admitted his indebtedness but undertook to liquidate same by installment payments of N1,700.00 per day. It also asserted that the total amount of the loan re-paid by the 1st respondent is N655,550.00 only.

The appellant/1st defendant counter claimed as follows:
1. The 1st defendant avers that as at 31st May, 2002 the plaintiffs indebtedness to her stood at N1,466,802.00 made up of the loan interest and other charges.
2. The 1st defendant avers that the agreed period for the total repayment of this loan and all dues was twelve months from 10th September, 1996, which period has lapsed several times over.
3. The 1st defendant will also rely on the plaintiffs several admissions of his indebtedness to her, and several undertakings, albeit unfulfilled, to settle the outstanding indebtedness and the many repeated demands.
4. WHEREOF the 1st defendant claims against the plaintiff the sum of N1,466,802.00 as 3% interest rate per month from 31st May, 2002 until the amount is totally liquidated."

The 2nd respondent (as 2nd defendant) also filed a statement of Defence wherein he pleaded that he does not bear the name I.K. Ayinde, the name in which he was sued, but Lere Arinde. He also averred that the auction notice was pasted before the order of injunction was made and that once served with the order, he suspended the auction. The 1st respondent filed a Reply to the 2nd respondent's statement of defence.

???At the trial, the parties testified in line with their pleadings. At the conclusion of the trial, the learned trial Judge dismissed the 1st respondent's suit, except the claim that the notice of auction was unlawful, and granted the appellant's counter claim. Being dissatisfied with the decision, the 1st respondent appealed to the Court of Appeal. In a considered judgment delivered on 12/3/2007, the Court of Appeal allowed the appeal, granted the 1st respondent's claims and dismissed the appellant's counter claim. Dissatisfied with the decision, the appellant appealed to the Supreme Court

The Court determined the appeal on the following issues:
1. Whether the terms of the written offer, Exhibit D1, accepted absolutely and unconditionally by the 1st respondent on the basis of which appellant fully performed the contract for loan can without such an intendment be overridden by a Deed of Legal Mortgage, Exhibit D2, collateral to the primary agreement, not in existence at the time of appellant's performance and the purpose of which is merely to secure the loan.
2. Whether the Court of Appeal was not in error in its casual holding that there is no evidence to back up the appellant's counter claim without considering in the slightest regard the evidence painstakingly evaluated and believed by the trial Court.
3. Whether the 1st respondent proved an overpayment on his loan and dues to warrant the Court of Appeal's order for a refund of the sum of N179,805.00 to him by the appellant.
4. Whether the 1st respondent's Further and Better Amended Statement of Claim discloses any reasonable cause of action against the appellant.

In conclusion, the Supreme Court unanimously found that the appeal lacks merit and it was thereby dismissed. The judgment of the Court of Appeal delivered on 12/3/2007 setting aside the judgment of the trial Court and ordering the appellant to refund the sum of N179,805.00 to the respondent, was thereby affirmed.

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