BEST LAW REPORT SUBSCRIPTION PRICE!!

  • Nuba Commercial Farms Ltd v. Nal Merchant Bank Ltd
  • 145
  • 2003-03-10
  • ₦ 200
  • Buy Now

Nuba Commercial Farms Ltd v. Nal Merchant Bank Ltd

1.      NUBA COMMERCIAL FARMS LTD.

2.      ALHAJI NUHU BABAJO

V

1.      NAL MERCHANT BANK LTD

2.      MR. I. A. LADEJOBI

COURT OF APPEAL

( KADUNA DIVISION )

RABIU DANLAMI MUHAMMAD, JCA ( Presided )

MAHMUD MOHAMMED, JCA

V. AIMEPOMO OYELEYE OMAGE, JCA ( Read the Lead Judgment ) 

CA/K/58/2000

THURSDAY, 5TH JULY, 2001

ACTION - Recovery of loan by bank - Action for in court - Bank still charging interest while action pending - Impropriety of

BANKING - Document which is an entry in a banker’s book or banker’s particulars stored in a computer - Admissibility of - Section 97(1)(h), Evidence Act

BANKING - Evidence - Information retrieved from the computer by a banker -  Admissibility of

BANKING - Information retrieved by a bank from its computer concerning its transaction with a customer - Whether admissible in evidence against the customer

BANKING - Interest - Power of bank to charge - Whether continues after the institution of case

BANKING LAW - Bankers - Power of to calculate interest - When banker will lose that right

COMPUTER - Document which is an entry in a banker’s book or banker’s particulars stored in a computer - Admissibility of - Section 97(1)(h), Evidence Act

COURT - Claim made by a counter-claimant - Power of court not to grant more than

COURT - Duty on not to grant more than what is claimed

EVIDENCE - Information retrieved by a bank from its computer concerning its transaction with a customer - Whether admissible in evidence against the customer

FAIR HEARING - Connotation of fair hearing - Denial of - What amounts to - Whether failure of party to avail himself of opportunity provided to ventilate his case can amount to denial of fair hearing if judgment is subsequently given based on the claim of the other party

FAIR HEARING - Right to fair hearing - Meaning of - When is right said to be violated

PLEADING - Claim made by a counter-claimant - Power of court not to grant more than

PLEADING - Claim more than the sum claimed in the substantive suit Whether court can grant

PLEADING - Counter-claim - Nature of - Onus on defendant in respect of counter-claim

PRACTICE AND PROCEDURE - Claim more than the sum claimed in the substantive suit - Whether court can grant

PRACTICE AND PROCEDURE - Counter-claim - Failure to file defence thereto - What counter-claimant can do

PRACTICE AND PROCEDURE - Counter-claim - Nature of - Onus on defendant in respect of counter-claim

PRACTICE AND PROCEDURE - Court - Duty not to grant what is not claimed

PRACTICE AND PROCEDURE - Recovery of loan - Action for - Whether permissible for bank to continue to calculate interest when action is pending

Issues:

1.            Whether the appellants, after having their case struck out for lack of diligent prosecution and after having been served severally with hearing notices but decided to absent themselves from trial can legitimately claim that they were denied fair hearing.

2.            Is the bank, having filed a claim in court entitled to continue to calculate the sum due, or claimed from the court according to its own calculated interest in its office, or is the claimant entitled only to the sum claimed on the statement of claim as filed in the court?

Facts:

The appellants issued against the defendants/respondents at the Kaduna Judicial Division a writ seeking a declaration that one Mohammed I. Aliyu who signed the consent and approval to a mortgage transaction between the plaintiff and defendant in respect of the plaintiffs’ property located in Park Road, Zaria covered by a certificate of occupancy is incompetent and that it is illegal for the said Mohammed I. Aliyu to give such a consent of approval to the mortgage. The appellants also sought to restrain the defendants from selling either by public auction or private treaty his property covered by the certificate of occupancy in exercise of the power of sale under the deed of mortgage between the plaintiffs and the defendants.

The defendants upon receipt of the plaintiffs’ claim filed its statement of defence and counter-claim and stated the plaintiffs’ indebtedness to it which was put at N9,011,005.99 with interest thereon at 21% from the end of July 1994 until judgment is delivered and thereafter with interest at 10% until judgment debt is liquidated.

According to the respondents, the plaintiffs failed to come to court on the date fixed for hearing as a result of which the court proceeded to hear the respondents’ counter-claim and did not allow the plaintiffs to take part in the proceedings. The respondents further stated that the plaintiffs’ prayer for an interlocutory injunction having been granted by the court in the suit, wherein the sale of plaintiffs’ property was restrained, the plaintiffs/appellants ceased to be committed to the prosecution of his case as a result of which plaintiffs’ suit was struck out for lack of diligent prosecution. Respondents subsequently proved their counter-claim. Judgment was then entered for the respondents based on the counter-claim with interest on the aforesaid facility at the rate of 21% from the end of July until judgment and thereafter at 10% until the liquidation of judgment debt.

Dissatisfied with the judgment, plaintiffs appealed.