OKEHIA & ANOR v. MORTGAGE BANK (NIG)LTD & ANOR

CITATION: (2018) LPELR-46263(CA)

In the Court of AppealIn the Owerri Judicial Division

Holden at Owerri

ON THURSDAY, 29TH NOVEMBER, 2018Suit No: CA/OW/189M/2015

Before Their Lordships:

RAPHAEL CHIKWE AGBO Justice, Court of AppealAYOBODE OLUJIMI LOKULO-SODIPE Justice, Court of AppealRITA NOSAKHARE PEMU Justice, Court of Appeal

Between1. MRS. PATIENCE ADIARI OKEHIA2. IFEANYI KINGSLEY OKEHIE(For Themselves And As Representing OtherBeneficiaries of The Estate of Chief ChuwumaOkehie, (Deceased)

- Appellant(s)

And1. MORTGAGE BANK NIG. LTD.2. KINGSMAN GARMENT IND. LTD. - Respondent(s)

RATIO DECIDENDI1. ACTION - ACTION FOR ACCOUNT: What constitutes an action for account and when it lies

"Decidedly, an action for account lies in respect of a claim which may be ascertained at the time of theinstitution of the proceedings. GODWIN v. C.A.C. (1998) 14 NWLR (PT.584) 162 @ 164."Per PEMU, J.C.A.(P. 20, Paras. A-B) - read in context

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2. BANKING LAW - LOAN: What a Court must consider in an action for recovery of loan"In paragraph 4:10 of the Appellants brief of argument, he did submit that where there is a disputebetween a banker and its customer in relation to recovery of loan advanced by the banker to thecustomer, the question which the Court should normally consider are these:-a. Was the Defendant granted a loan by the Plaintiff?b. If so how much?c. What was the interest agreed?d. How much if any has the Defendant paid out of the loan - F.B.N. PLC v. OBEYA (1998) 2 NWLR (PT537) 205 @ 207."Per PEMU, J.C.A. (P. 19, Paras. C-F) - read in context

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3. LAND LAW - LIS PENDENS: Conditions for the application of the doctrine of lis pendens"LIS PENDENS is a doctrine at common law. It binds a purchaser or encumbrance of property to theresult of any pending law suit which may affect the title to any lien on or possession of the property.The main purpose is to notify them that their interests are subject to the Courts' decision. The case ofODUKWE v. OGUNBIYI (1998) 6 SCNJ 102 cited by the 2nd Respondent is instructive. Where Iguh J.S.C.held thus inter alia: "The doctrine of Lis Pendens operates not to disallow acquisition of rights in orover a property in dispute by a party to a litigation during the pendency of such litigation, so long assuch acquisition is not prejudicial to any of the other parties to the litigation. It does operate to preventthe transfer of any property in dispute or any rights therein to another person or to a purchaser duringthe pendency of the dispute, thus prejudicing any of the other litigation parties". The question iswhether the transfer of interest in the deed of Assignment was made during the pendency of the suit.It is the 2nd Respondent's contention that the transfer of title was done before the suit was filed. Thatthe Deed of Assignment only confirmed the transfer that was done on 20/5/91 before the suit was filed.The Appellants submit that the law does not allow to parties to a suit, and give to them, pending thelitigation, rights in the property in dispute.Let me reproduce verbatim the 2nd Respondent's counter claim and the reriefs sought thereto. It isfor:a. A declaration that assignment between the 1st Defendant and the 3rd Defendant contained in theDeed of Assignment dated 24th August 1995 and register as 62/62/184 of the lands Registry, Umuahiais valid and subsisting.b. A declaration that the 3rd Defendant is the owner of the property covered by the said Deed ofAssignment, formally known as 50, Aba/Owerri Road, Aba but now known as 104 Aba/Owerri Road,Aba.c. An order for the Plaintiff to account to the 3rd Defendant, the proceeds of rent in respect of the saidproperty from the 20th of May 1991, to 24th October 2001 when the Assistant Chief Register of thisCourt was appointed by the order of Court as the receiver over the property" - pages 157-160 of theRecord of Appeal. A cursory looks at the judgment of the Court below at page 485 of the Record ofAppeal, it says:- "...there is evidence before me which I accept that the auctioneer went there and infront of the building, conducted the sale - Claimant made effects to stop him and according to themfailed. I won't go into the threat to the Court bailiff but what is important now is that the auctioneer didnot honour the processes allegedly served by the bailiff..."It is apparent that the Court below failed to address whether the Writ of summons and the motion onnotice for injunction restraining the auction sale were properly served on the Defendant (auctioneer). Itwas silent on this. We are at a loss as to whether there was proper service on the auctioneer. If that isestablished, then one will know if the auctioneer was properly served as to notify him of the pendingaction. If the answer is in the positive, then it necessarily means that the sales was caught up by thedoctrine of LIS PENDENS which connotes that the matter has been interfered with and transfers madeduring the pendency of the action.The bailiff by giving the auctioneer the process, who throws it on the ground, that constitutes properservice. (page 11 of the Record of Appeal - Report of threatening of life by Nze Sam Ogikwu and 2armed Mobile Policemen dated 20/5/1991).For purpose of emphasis, it is pertinent that I restate the condition on which the doctrine of LISPENDENS would apply decidedly, they are:1. That at the time of the sale of the property, the suit regarding the dispute about the said propertywas already pending.2. That the action or lease was in respect of real property. It never applies to personal property.3. That the object of the action was to recover or assert title to a specific real property i.e. an action ina subject matter address to the owner in respect of some substantive right which is proprietary innature and.4. That the other party had been served with the originating process in the pending action.ALHAJI USMAN BUA v. BASHIRU DAUDA (2003) 43 WRN; 13 NWLR (PT. 863) 657 - PER Uwaifo JSC.?The above four conditions must co-exist before the doctrine of LIS PENDENS would apply. ORONTI v.ONIGBANJO (2012) 41 NRN I. In the instant appeal, it is apparent that the Court amply considered theaccount as put before it. It is also apparent that as at the time of the auction the debt has not beenfully repaid. When a party admits receipt of a loan (not part payment of) the burden of proof ofrepayment is on the party who received the loan. -MACAULAY v. NAL MERCHANT BANK (1990) 6 SCNJ117. Decidedly, a mortgagee will not be restrained, neither would his power of forfeiture be affected bythe exercise by him, of his power of sale merely because the amount due is in dispute. INTERCITYBANK PLC v. F & F.F. (NIG) LTD 2001, 17 NWLR. PT 742 347@365."Per PEMU, J.C.A. (Pp. 12-16, Paras.C-F) - read in context

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R I T A N O S A K H A R E P E M U J . C . A .

(Delivering the Leading Judgment): The Suit the subject

matter of this appeal was instituted by Writ of Summons

and an accompanying Motion for Interlocutory injunction.

Howbeit, from records. The Writ of Summons was filed on

the 15th of July, 1996, while the motion for interlocutory

injunction was filed on the 20th of May, 2001.

The Judgment complained of was delivered by the High

Court of Abia State in Suit No. A/100/91, on the 29th day of

September 2014, pages 476 -489 of the Record of Appeal.

SYNOPSIS OF FACT

The Appellant had amended their writ vide Motion on

Notice filed on the 24th of June 1997. The writ was further

amended vide Writ of Summons filed on the 31st of July

1998 – Page 57 of the Record of Appeal.

In Paragraph 15 of the third Amended statement of claim,

the Claimants/Appellants claim as follows:

“1. A declaration of Court that the 1st defendant is not

entitled to sell the claimant’s property Registered as No. 50

at page 50 in volume 187 of the Land Registry in the Office

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at Owerri now Umuahia otherwise identified as No. 50 Aba-

Owerri Road, Aba or any other property of the Claimant.

2. An Order of Court that the sale of purported sale of the

claimant’s property Registered as No.6 at page 6 ii volume

762 of the Lands Registry is null and void and of no effect.

3. An Order of Court for delivery up for cancellation any

document or instrument executed by the defendants or

either of them in favour of the purported vesting or

transferring any or either of the Claimant’s.

4. Two Million Naira (N2,000,000) being general and

special damages for the wrongful sale of the claimant

property or either of them.

4a. An Order of Court for an account to be taken between

the Claimant and the first defendant of all monies paid into

the Claimants account by the Claimant within the period of

the transaction and a refund to the Claimant any balance

outstanding in the said account in excess of the Claimant’s

indebtedness to the 1st defendant.

5. Injunction restraining the 1st defendant by itself, agents,

servants or any person claiming through or under it from

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selling or alienating the property or either of them of the

Claimant.

Dated at Aba this 14th day of May, 2012”.

Worthy of note is that, on the 20th of May, 1991, when the

action was about commencing, one C.C. Okehie (Original

Plaintiff) and 1st and 2nd Respondents names were here on

record.

The Plaintiff and the original 2nd Respondent however died

and were substituted by Mrs. Patience Adiari Okehie and

Ifeanyi Kingsley Okehie as 1st and 2nd Claimants (now

Appellants) respectively.

Simply put, in the year 1980, the deceased original

Claimant C.C. Okehie, applied for a Loan of One Million,

Five Hundred Thousand Naira, from the 1st Respondent.

The 1st Respondent however approved a paltry sum of

N50,000.00.

As collateral for the Loan the Original Claimant

surrendered his property registered as No.50 at Page 50 in

vol.187 in the Lands Registry, Owerri now Abia State and a

legal Mortgage was executed between him and the 1st

Respondent. The Deed of Legal Mortgage was registered

as No.74 at Page 74 in vol.278 of the Lands Registry

Owerri, now Umuahia.

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The deceased Original Claimant proceeded to draw the sum

of N34,000 out of the N50,000.00 Loan, but he suddenly

realized that the money would be insufficient to complete

his project for which the loan was sought and obtained.

He notified the 1st Respondent of his decision not to draw

any further fund and opted to refund the N34,000 which he

had drawn together with the interest. The Claimant swiftly

proceeded to make lodgment into his various accounts with

the 1st Respondent. As at the 13th day of May, 1991 the

amount lodged with 1st Respondent was N46,501.63k.

The Claimant had made several demands from the 1st

Respondent, to furnish him with his statement of account to

enable him know his account status with the 1st

Respondent, but he was denied.

Instead the 1st Respondent told the Claimant that the sum

of N46,501.63k already paid by him did not fully liquidate

the outstanding balance of the loan.

The 1st Respondent was found to have made entries in the

statement of Mortgage account. He however did not send

the Claimant any statement of account.

Without submitting to account reconciliation and without

delivering the Appellants’ state of account, the 1st

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Respondent proceeded to advertise the Appellant’s

property for auction to take place on Monday 20th May

1991.

Service of process to halt the sale of the property was

served by the Bailiff on the 30th of May, 1991, which

aborted the auction sale.

In the process of this suit and during its pendency the

present 2nd Respondent applied to be joined in this action,

alleging that the said property was assigned to him by the

1st Respondent vide Deed of Assignment executed on the

24th of August 1995 – four years after the purported

auction sale and after the commencement of this action.

The Court below dismissed the Appellants’ action praying

inter alia for reconciliation of account and granted the 2nd

Respondents’ counter-claim validating the said deed of

assignment which was caught by LIS PENDENS.

Pertinent to note that the 1st and 2nd Respondents filed a

statement of defence and counter claim on the 12th of April

2012 – Pages 261-265 of the Record of Appeal.

There is also an Amended Statement of Defence – Counter

claim of the 3rd defendant (who is the 2nd Respondent in

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this appeal) filed on the 21st of March, 2005 Pages 157 –

160 of the Record of Appeal.

Dissatisfied, the Appellants filed their Notice of Appeal on

the 8th of October 2014 -Page 491 of the Record of Appeal

encapsulating Two Grounds of Appeal. The Appellants filed

the Appellants’ brief of argument on the 1st of November,

2011, but same was deemed filed on the 1st of February,

2018. It is settled by M.U. Uzoma Esq.

The 1st Respondent filed its brief of Argument on the 27th

of February, 2018 and same is settled by O. A. Ukegbu

Esq. The 2nd Respondent filed its brief of Argument on the

14th of February, 2018, and it is settled by Bertram Faotu

Esq.

Appellants filed a reply brief of argument in answer to the

1st Respondents’ brief. There is no reply to the 2nd

Respondents brief of argument.

The Appellants proffered two issues for determination from

the Grounds of Appeal. They are:

1) WHETHER THE 2ND RESPONDENT’S COUNTER

CLAIM AND THE RELIEFS SOUGHT THERETO

WHICH WERE PREDICATED ON THE DEED OF

ASSIGNMENT EXECUTED ON THE 24TH AUGUST,

1995 BY THE 1ST

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RESPONDENT WAS CAUGHT BY THE DOCTRINE OF

LIS PENDES AND THREFORE INEFFECTUAL.

2) WHETHER THE TRIAL COURT WAS RIGHT IN

DISMISSING THE APPELLANTS’ SUIT WITHOUT

FIRST DIRECTING THAT PARTIES SETTLE ACCOUNT

SO AS TO DETERMINE WHETHER THE APPELLANTS

HAVE INDEED DEFAULTED UNDER THE LEGAL

MORTGAGE.

The 1st RESPONDENT’S BRIEF OF ARGUMENT was filed

on the 27th of February, 2018. In it, the 1st Respondent

proffered two issues for determination. They are:

I) WHETHER THE LEARNED TRIAL JUDGE

RESOLVED THE ISSUE OF INDEBTEDNESS OF THE

APPELLANTS BEFORE GOING ON TO AND IN GOING

AHEAD TO GIVE JUDGMENT IN FAVOUR OF THE

RESPONDENTS – GROUND ONE OF THE NOTICE OF

APPEAL.

II) WHETHER THE 2ND RESPONENT’S COUNTER-

CLAIM AND THE RELEIFS SOUGHT THERETO

WHICH WERE PREDICATED ON THE DEED OF

ASSIGNMENT EXECUTED ON THE 24TH AUGUST,

1995 BY THE 1ST RESPONDENT WAS CAUGHT BY

THE DOCTRINE OF LIS PENDES AND IF THE

LEARNED TRIAL JUDGE WAS RIGHT IN GRANTING

THE SAID COUNTER-CLAIM.

The 2nd RESPONDENT, in his brief of argument proffered

Two Issues for determination. They are:

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I) WHETHER THE LEARNED TRIAL JUDGE

R E S O L V E D T H E I S S U E O F

ACCOUNT/INDEBTEDNESS OF THE APPELLANTS

BEFORE GOING ON TO AND IN GOING AHEAD TO

GIVE JUDGMENT IN FAVOUR OF THE 2ND

RESPONDENT – GROUND ONE OF THE NOTICE OF

APPEAL.

II) WHETHER THE LEARNED TRIAL JUDGE

PREDICATED HIS GRANTING OF THE COUNTER-

CLAIM ON THE DEED OF ASSIGNMENT EXECUTED

BETWEEN 1ST RESPONDENT AND THE 2ND

RESPONDENT AND IF HE WAS RIGHT IN GRANTING

THE SAID COUNTER-CLAIM – GROUND TWO OF THE

NOTICE OF APPEAL.

A painstaking look at the Respondents issues for

determination, it seems to me that the issues for

determination proffered by the 1st and 2nd Respondents

are essentially an adoption of the issues proffered by the

Appellants. On the 29th of October 2018, parties adopted

their respective briefs of argument.

I shall therefore consider this appeal based on the

Appellants’ issues for determination.

ISSUE NO. 1

It is the Appellants’ submission that where there is a sales

in respect of a property in dispute by either side to a

litigation pendent lite, the purported purchase would be

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ineffective and must be set aside as void. Citing AJUWON

v. AKANNI (1993) 9 NWLR (Part 316) 182 @ 197-198

H-B.

That the 2nd Respondents counter claim, and the reliefs

sought are predicated on a deed of assignment executed on

the 24th of August 1995, over four year after the

commencement of the action.

They submit that the 2nd Respondents counter claim is

caught by the doctrine of LIS PENDENS.

Urges this Honourable Court to set the judgment of the

Court below aside.

ISSUE NO 2 The Appellants submit that for a party to rely

on the statement of Account to prove liability, there must

be evidence that the statement of account was brought to

the knowledge of the alleged debtor and that this can only

be by proof of delivery of same. It is more so, where the

alleged debtor pleaded denying knowledge of the contents

of the statement.

That the Appellants had pleaded paragraph 8 (a) of their

substituted 2nd Further Amended statement of claim –

pages 225-229 of the Record of Appeal – that the 1st

Respondent has not been sending statement of account to

them. They also had evidence to that effect through PW1.

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That the 1st Respondent did not chal lenge or

controvert paragraph 8 (a) of the Appellants’ substituted

2nd Further Amended statement of claim. This, they

submit, is a clear case of admission in law.

Submits that where there is a dispute between a banker

and its customer in relation to recovery of loan advanced by

the banker to the customer, the question the Court would

consider are:-

(a) Was the Defendant granted a loan by the Plaintiff?

(b) If so, how much?

(c) What was the interest agreed?

(d) How much, if any has the Defendant paid out of the

loan? – F.B.N. PLC v. OBEYA 1998, 2 NWLR PT. 537

205 @207.

Submits that the issues now are two which are:

(a) What was the interest agreed and how much if any, has

the Defendant paid out of the loan?

They submit, that the new rate of interest charged by the

1st Respondents was not pleaded in his amended statement

of Defence – pages 113 -116. That the new rate of interest

was not stated or shown in the statement of mortgage

account tendered in evidence – Exhibit?

Submits that the evidence of DW1 Uche Eki who

testified for the 1st Respondent show that, the 1st

Respondent was

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uncertain about the amount of money so far deposited by

the deceased original claimant in liquidation of the loan

granted him by the 1st Respondent.

Submits that an action for account will be in requirement of

a claim which may be unascertained at the time of the

institution of the action, and can only be however

ascertained after the filing of such an account – GODWIN

v. C.A.C. (1998) 14 NWLR. PT 584 162 @ 164.

That the Court below was in error when it refused to grant

the Appellants’ relief on settlement of account. That the

grant of the counter-claim is caught by LIS PENDENS.

ISSUE NO. 2

The 2nd Respondent’s counter claim was granted by the

Court below, and the Appellants allege that the Court was

wrong in doing so, as the counter claim is founded on a

Deed of Assignment which was made on the 24th of August

1991, after the suit had been filed on the 20th of May 1991

– during the pendency of the suit.

But the Respondent argues that the Court below granted

the counter claim upon the mortgagee’s exercise of its right

of sale on 20/5/91 and not because of the Deed of

Assignment.

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It is the 2nd Respondent’s contention that the said Deed of

Assignment only gives effect to what had already been done

between the 1st Respondent and the 2nd Respondent,

which is the sale or assignment of the property subject of

the mortgage, by the 1st Respondent to the 2nd

Respondent on 20/5/91 before the suit was filed.

RESOLUTION OF ISSUE. ISSUE NO 1.

LIS PENDENS is a doctrine at common law. It binds a

purchaser or encumbrance of property to the result of any

pending law suit which may affect the title to any lien on or

possession of the property. The main purpose is to notify

them that their interests are subject to the Courts’ decision.

The case of ODUKWE v. OGUNBIYI (1998) 6 SCNJ 102

cited by the 2nd Respondent is instructive. Where Iguh

J.S.C. held thus inter alia:

“The doctrine of Lis Pendens operates not to disallow

acquisition of rights in or over a property in dispute

by a party to a litigation during the pendency of such

litigation, so long as such acquisition is not

prejudicial to any of the other parties to the

litigation. It does operate to prevent the transfer of

any property

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in dispute or any rights therein to another person or

to a purchaser during the pendency of the dispute,

thus prejudicing any of the other litigation parties”.

The question is whether the transfer of interest in the deed

of Assignment was made during the pendency of the suit. It

is the 2nd Respondent’s contention that the transfer of title

was done before the suit was filed. That the Deed of

Assignment only confirmed the transfer that was done on

20/5/91 before the suit was filed.

The Appellants submit that the law does not allow to

parties to a suit, and give to them, pending the litigation,

rights in the property in dispute.

Let me reproduce verbatim the 2nd Respondent’s counter

claim and the reriefs sought thereto. It is for:

a. A declaration that assignment between the 1st

Defendant and the 3rd Defendant contained in the

Deed of Assignment dated 24th August 1995 and

register as 62/62/184 of the lands Registry, Umuahia

is valid and subsisting.

b. A declaration that the 3rd Defendant is the owner of the

property covered by the said Deed of Assignment, formally

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known as 50, Aba/Owerri Road, Aba but now known as

104 Aba/Owerri Road, Aba.

c. An order for the Plaintiff to account to the 3rd

Defendant, the proceeds of rent in respect of the said

property from the 20th of May 1991, to 24th October 2001

when the Assistant Chief Register of this Court was

appointed by the order of Court as the receiver over the

property” – pages 157-160 of the Record of Appeal.

A cursory looks at the judgment of the Court below at page

485 of the Record of Appeal, it says:-

“…there is evidence before me which I accept that the

auctioneer went there and in front of the building,

conducted the sale – Claimant made effects to stop

him and according to them failed. I won’t go into the

threat to the Court bailiff but what is important now

is that the auctioneer did not honour the processes

allegedly served by the bailiff…”

It is apparent that the Court below failed to address

whether the Writ of summons and the motion on notice for

injunction restraining the auction sale were properly served

on the Defendant (auctioneer). It was silent on this. We are

at a loss as to

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whether there was proper service on the auctioneer. If that

is established, then one will know if the auctioneer was

properly served as to notify him of the pending action.

If the answer is in the positive, then it necessarily means

that the sales was caught up by the doctrine of LIS

PENDENS which connotes that the matter has been

interfered with and transfers made during the pendency of

the action.

The bailiff by giving the auctioneer the process, who throws

it on the ground, that constitutes proper service. (page 11

of the Record of Appeal – Report of threatening of life by

Nze Sam Ogikwu and 2 armed Mobile Policemen dated

20/5/1991).

For purpose of emphasis, it is pertinent that I restate the

condition on which the doctrine of LIS PENDENS would

apply decidedly, they are:

1. That at the time of the sale of the property, the suit

regarding the dispute about the said property was already

pending.

2. That the action or lease was in respect of real property.

It never applies to personal property.

3. That the object of the action was to recover or assert

title to a specific real property i.e. an action in a subject

matter

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address to the owner in respect of some substantive right

which is proprietary in nature and.

4. That the other party had been served with the

originating process in the pending action.

ALHAJI USMAN BUA v. BASHIRU DAUDA (2003) 43

WRN; 13 NWLR (PT. 863) 657 – PER Uwaifo JSC.

The above four conditions must co-exist before the doctrine

of LIS PENDENS would apply. ORONTI v. ONIGBANJO

(2012) 41 NRN I.

In the instant appeal, it is apparent that the Court amply

considered the account as put before it. It is also apparent

that as at the time of the auction the debt has not been fully

repaid.

When a party admits receipt of a loan (not part payment of)

the burden of proof of repayment is on the party who

received the loan. –MACAULAY v. NAL MERCHANT

BANK (1990) 6 SCNJ 117.

Decidedly, a mortgagee will not be restrained, neither

would his power of forfeiture be affected by the exercise by

him, of his power of sale merely because the amount due is

in dispute. INTERCITY BANK PLC v. F & F.F. (NIG)

LTD 2001, 17 NWLR. PT 742 347@365.

This issue No 1 is resolved in favour of the Respondent and

against the Appellants.

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ISSUE NO 2 – In paragraph 8 (a) of the Appellants

substituted 2nd further Amended statement of claim –

pages 225-229 of the Record of Appeal it says:

“By a letter of the 1st Respondent dated 20th April

1991, the 1st Defendant, without sending the

statement of account of the Plaintiff as variously

demanded by the Plaintiff, demanded the Plaintiff to

pay the sum of N115,103.40K within one calendar

month from the date of received of that letter. The

same together with the reply of the Plaintiff in

relation thereto dated 1st May 1991 are pleaded and

the 1st Defendant given notice to produce the

original in its possession”.

In the judgment of the Court below, the learned trial Judge

observed as follows:-

“The next issue is the contention by Mr. Anyanwu that

Chief Okehie was not owing the Bank as he had paid

off the whole debt Claimants alleged the loan had

been paid back fully while the Bank alleged it has not

paid leading to the auction. My view is that it is the

duty of the Claimants to prove that the loan had been

repaid. What is the evidence before me? The evidence

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before me which accept is that Chief Okehie had one

mortgage account No: 2779623-5 and two other

savings accounts numbers 2779623-6, 2784723-1.

The relevant one for this transaction is the mortgage

account. By the Claimants’ evidence and Exhibits K-

K5 lodgments were made into the three of them.

Exhibit 6 shows that if Chief Okehie paid N52,288.5k

as at 29/8/86, he would be completely free of debt. By

Exhibits K2, K3, K4 and K5, Okehie paid a total of

N25,000 in 1990 and 1991-10/01/91 Claimants did not

tender any other payment slip outside of there.

Apparently between that 1986 and 1990 when Exhibit

DO5 has written, the debt had risen to N109,424.48

and Okehie was so informed and given 14 days to

clear the debt or the auctioneer would be called in.

there was no response to this letter. On 20/4/1991 1st

Defendant write Mr. Okehie demanding the total sum

of N115, 103.40 being the outstanding debt – see

Exhibit “G” on 1/5/1991 Okehie replied via Exhibit

“H”. In it he insisted he was not owing unless he

received his statement of Account. Now as a prudent

and concerned customer he did not go to the

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Bank to demand his statement and reconciliation.

There was N150,000 which Okehie paid but DW2 said

it was into his mortgage account. So, as at 31/2/90,

Okehie was owing N93,899.67.

The property was auctioned on 20/5/91. DW2 held the

Court that the N150,000 Okehie paid was not into the

Mortgage Account this would appear true. For it was

paid into Account number 11278423-1, I also note

that it was paid during the pendency of this action”.

In paragraph 4:10 of the Appellants brief of argument, he

did submit that where there is a dispute between a banker

and its customer in relation to recovery of loan advanced by

the banker to the customer, the question which the Court

should normally consider are these:-

a. Was the Defendant granted a loan by the Plaintiff?

b. If so how much?

c. What was the interest agreed?

d. How much if any has the Defendant paid out of the loan –

F.B.N. PLC v. OBEYA (1998) 2 NWLR (PT 537) 205 @

207.

In paragraph 9 of their substituted 2nd further Amended

statement of claim the Appellants pleaded that they have

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fully liquidated their indebtedness with the 1st Respondent

prior to the purported auction sale.

Decidedly, an action for account lies in respect of a claim

which may be ascertained at the time of the institution of

the proceedings. GODWIN v. C.A.C. (1998) 14 NWLR

(PT.584) 162 @ 164.

The Court below, in my view copiously considered the issue

of account and made a pronouncement on it. At page 487 of

the Record of Appeal, the Court below observed.

“On 1/5/1991 Okehie replied via Exhibit “H” in it he

insisted he was not owing unless he received his

statement of Account. Now as a prudent and

concerned customer, he did not go to the Bank to

demand his statement and reconciliation”.

He went further:

“There was N150,000 which Okehie paid but DW2

said it was not into his mortgage account. So as at

31/12/90, Okehie was owing N93,899-6?

The property was auctioned on 20/5/91.

DW2 told the Court that the N150,000 Okehie paid

was not into the mortgage account, this would appear

time. For it was paid into Account Number

11278423-1. I also note that it was paid during the

pendency of this action” pages 487-488 of the Record

of Appeal.

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The Court below further observed at page 488 of the

Record of Appeal:

“From the records, the Claimants did not tender any

teller of deposit apart from Exhibits K1-K4. So, when

Okehie said he was not owing the Bank, the burden to

prove that was not discharged”.

Argument of the Appellants that the Court below failed to

direct that parties settle account so as to determine

whether the Appellants have defaulted under the legal

mortgage is misconceived.

Having said these, I must note here that there is nothing in

the Record of Appeal showing the Mortgage deed and its

terms. It is not enough to tender Exhibits K1-K4.

I have no option but to resolve this issue in favour of the

Respondent and against the Appellant.

The result is that the Appeal fails and same is hereby

dismissed.

No order as to costs.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.:

I have had the privilege of reading in draft the leading

judgment prepared by my learned brother, PEMU, JCA.

This is to state that I agree with the manner in which the

issues

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considered in the appeal have been resolved and that I

have nothing useful to add to the said judgment by way of

contribution.

Accordingly, I too find the appeal to be unmeritorious and

dismiss same. I also abide by the order in relation to costs

made in the leading judgment.

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Appearances:

M. U. UZOMA, ESQ For Appellant(s)

O. A. UHEGBU, ESQ For Respondent(s)

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