IN THE NATIONAL INDUSTRIAL COURT
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HER LORDSHIP HON. JUSTICE ELIZABETH A. OJI, PhD
DATE: MONDAY 12TH 2021 SUIT NO: NICN/LA/143/2018
ECOBANK NIGERIA LIMITED ] CLAIMANT
MRS. ABISOLA AWELE OKOAKIH ] DEFENDANT
Abraham Otene for the Claimant
The Defendant is unrepresented
Introduction and Claims:
1. On the 7th March 2018, the Claimant filed this suit via the General Form of Complaint and claims against the Defendant as follows:
a) The sum of ₦126,556,031.30 (One Hundred and Twenty-Six Million, Five Hundred and Fifty-Six Thousand and Thirty-One Naira, Thirty Kobo) being the outstanding mortgage loan and Dangote Sugar Refining Plc share loan granted to the Defendant by the Claimant as at 29 January 2015.
b) Interest on the above sum of ₦126,556,031.30 (One Hundred and Twenty-Six Million, Five Hundred and Fifty-Six Thousand and Thirty-One Naira, Thirty Kobo) at the rate of 25% per annum from 29 January 2015, until judgment and thereafter at the rate of 10% until the judgment sum is fully liquidated.
c) AN ORDER of this Honourable Court directing the attachment and sale of the property known as House 1B, Plot 1, Block 35, Lekki Peninsula Scheme 1 Lagos which was purchased with the mortgage loan advanced to the Defendant by the Claimant in satisfaction of the judgment sums in this suit.”
d) ₦2,000,000.00 (Two Million Naira) being cost of the action.
2. All the processes filed in this suit were duly served on the Defendant. Affidavits of service were sighted by the Court for both the general form of complaint stating that the processes were dropped. (at page 131 of the Court’s file). The Claimant brought an application for substituted service. On 25th May 2018, the Court ordered for substituted service on the Defendant by pasting the processes at her last known place of residence. Services of the originating processes and hearing notices were subsequently effected as ordered. On the 10th of January 2019, after the Claimant opened its case, the Court ordered that subsequent processes and notices be additionally served on the Claimant via two companies that the Claimant is said to have interests in: Parkview Microfinance Bank Limited and Dale and Parkers Consulting Limited. Despite all these efforts, the Defendant still failed to defend this suit. The Claimant proceeded to close its case and the Defendant’s right to cross examine and to defend was foreclosed and the matter adjourned for adoption of final written addresses. The Defendant filed no address whereupon the Claimant adopted its final written address on 22nd June 2021.
3. Mr. Francis Dehinbo testified as the Claimant’ sole witness in this matter and adopted his Witness Statement on oath deposed to on 7 March 2018. He is a Human Resources Officer in the Claimant bank and became conversant with the facts of this case from a review of the records of the Claimant. During his evidence in chief he tendered seventeen documents which were admitted and marked exhibits C1 – C17 as follows:
1. Defendant’s employment letter dated 12 November 1999 Exhibit C1
2. Claimant’s mortgage loan offer letter dated 20 July 2007 Exhibit C2
3. Offer for purchase of house letter from Messrs. S. I.
Nwoga & Associates to the Defendant dated 15/7/2007 Exhibit C3
4. Stamped copy of Deed of Legal Mortgage
between Claimant and Defendant Exhibit C4
5. Guarantee of Mrs. Lolade Ogunlusi Exhibit C5
6. Letter of Undertaking by Messrs. S.I. Nwoga & Associates dated 11 June 2007 to forward Documentation for house purchase Exhibit C6
7. Claimant’s letter to Defendant’s Solicitors dated 1 April 2010 Exhibit C7
8. Defendant’s Statement of Account No. 0002621055 (formerly Account No. 0012101008634). Exhibit C8
9. Defendant’s statement of account No. 0027848273 Exhibit C9
10. Defendant’s Statement of Account Nos. 0000024755 (formerly Account no. 0011401000179 Exhibit C10
11. Certificate of compliance with Section 84 of the Evidence Act 2011 in respect of computer-generated evidence Exhibit C11
12. Certified true copy of the Particulars of Directors (Form C.O.7) and the Shareholders (Form C.O.2) of Dale & Parker Limited and Parkway Microfinance Bank Limited. Exhibit C12A&B
13. Defendant’s Statement of Account No. 2112197187 Exhibit C13
14. Defendant’s letter dated 27 September 2007 Exhibit C14
15. Defendant’s letter to Central Securities Clearing System Limited for Transfer of Claimant’s Stock to Claimant dated 21/3/2014 Exhibit C15
16. Indemnity Agreement between the Claimant and Central Securities Clearing System Ltd Exhibit C16
17. Claimant’s employee Handbook Exhibit C17
Case of the Claimant:
4. The case of the Claimant is that the Defendant was a former employee of the defunct Oceanic Bank International Plc now Ecobank Nigeria Limited, employed on 12 November 1999, as a Deputy Manager and rose to the position of General Manager until 21 July 2008 when she voluntarily resigned her appointment with the Claimant. The Defendant in the course of her employment with the defunct Oceanic Bank applied for and was granted a mortgage loan in the sum of ₦58,500,0000.00 (Fifty-Eight Million Five Hundred Thousand Naira) by the Claimant for the acquisition of a property known as House 1B, Plot 1, Block 35, Lekki Peninsula Scheme 1, Lagos State. The security for the loan includes the submission of original perfected title Deed in the Defendant’s name to be domiciled with the Claimant, execution of mortgage forms, personal guarantee by one Mrs. Lolade Ogunlusi dated 20 July 2007. The Defendant also executed an undertaking through her Solicitors, Messrs. S.I. Nwoga & Associates to submit the original perfected title deed of the mortgaged property to the Claimant. Upon approval of the mortgage loan, the Claimant disbursed the sum of ₦55,900,364.60 (Fifty-Five Million, Nine Hundred Thousand Three Hundred and Sixty-Four Naira Sixty Kobo) into the Defendant’s Account No. 0002621055 (Exhibit C8) on 24 July 2007. The Defendant thereafter instructed the Claimant to raise a bank draft in the name of her Solicitors, Messrs. S.I. Nwoga & Associates. Despite disbursing the said sum to the Defendant through her Solicitors for the purchase of the property, the Defendant and her Solicitors have failed to submit the original title documents of the mortgaged property to the Claimant till date.
5. The Claimant also on 6 February 2007 granted a DASS or DASSAL loan of N45,000,000.00 for the purchase of Dangote Sugar Refining Plc shares to the Defendant. On 21 February 2007, the loan was rebooked by debiting the Defendant’s Account No. 0000024755 (Exhibit C10) and crediting the sum of N54,000,000.00 to the Defendant’s Account to purchase more Dangote shares. The Dangote Sugar Refining Plc’s shares purchased by the Defendant was used as collateral for the loan facility and deposited with the Central Securities Clearing System (CSCS) Ltd. The Defendant by a letter dated 27 September 2007 addressed to the Nigerian Stock Exchange conveyed her irrevocable authority to BFCL Assets and Securities Ltd to sell the shares pledged as collateral in the event of default on the loan facility without recourse to her.
6. As of 31 May 2013, the Defendant’s total indebtedness on both the mortgage loan and Dangote sugar loan inclusive of interest stood at ₦150,477,518.20 (One Hundred and Fifty Million Four Hundred and Seventy-Seven Thousand Five Hundred and Eighteen Naira, Twenty Kobo). Owing to the Defendant’s refusal to repay these facilities, the shares were subsequently sold and the sum of ₦23,921,486.90 (Twenty-Three Million Nine Hundred and Twenty-One Thousand Four Hundred and Eighty-Six Naira, Ninety Kobo) was realized from the sale which was deducted from the Defendant’s indebtedness of ₦150,477,518.20 (One Hundred and Fifty Million Four Hundred and Seventy-Seven Thousand Five Hundred and Eighteen Naira, Twenty Kobo) leaving an outstanding balance of ₦126,556,031.30 (One Hundred and Twenty-Six Million Five Hundred and Fifty-Six Thousand and Thirty-One Naira, Thirty Kobo).
The Defendant still failed to liquidate the outstanding balance of ₦126,556,031.30 despite repeated demands for payment, prompting the Claimant to commence this action to recover the sum.
Arguments of Counsel:
7. In its final written address, the Claimant submitted a sole issue for determination, to wit:
“Whether the Claimant has proved its entitlement to the reliefs sought in this suit against the Defendant?
The Claimant submitted that it has proved its entitlement to the reliefs sought in this case against the Defendant as it has proved that the Defendant as staff of the Claimant was availed several facilities by the Claimant which she did not pay before she left the employment of the Claimant; and the outstanding balance.
8. The Claimant’s complaints and other accompanying documents were filed on 7 March 2018 and served on the Defendant by substituted means after an order of this Court was made on 24 May 2018, granting leave to the Claimant to serve by substituted means. To ensure that the Defendant is given more opportunity of knowing of the pendency of this suit, this Court further ordered that service be made on two different companies that the Claimant was involved with as shown in exhibits C12A and C12B. The Defendant yet neither entered appearance nor filed a Statement of Defence in response to the Claimant’s claim. Several hearing notices were also served on the Defendant intimating her of the proceedings of the Court, but the Defendant never appeared in Court nor briefed a lawyer to appear on her behalf.
9. I read carefully and considered the processes filed in this case, the evidence led, the written submissions and authorities cited in the final address. I also heard the evidence of the lone witness called at the trial. In addition, I evaluated all the exhibits tendered and admitted. Having done all this, I set a lone issue down for determination:
· Whether the Claimant is entitled to its claim.
10. This lone issue is appropriate as it is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both case law and statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA) & Section 131(1) & (2), Evidence Act, 2011. Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts.
11. This suit, though founded on mortgage loan, evidence has shown that the loan was granted as a result of the Defendant’s status as a staff of the Defendant. This Court has held that where the subject matter of a suit (in this case the recovery of a mortgage loan) is inextricably linked with the employees’ employment, this Court has jurisdiction. See the case of First Bank of Nigeria Limited v. Mrs. Adejumoke Aina Wright Suit No: NICN/LA/300/2017 judgment delivered on 14th December 2020.
12. The Claimant by evidence which was not controverted proved that the Defendant was employed by the defunct Oceanic Bank International Plc now Ecobank Nigeria Limited on 12 November 1999 ( via Exhibit C1), as a Deputy Manager and rose to the position of General Manager, a position she held until 21 July 2008 when she resigned her appointment. The Claimant also proved that the Defendant applied for a mortgage loan in the sum of N58,500,000.00 (via Exhibit C2) for the acquisition of the property known as House 1B, Plot 1, Block 35, Lekki Phase 1, Lagos and on 24 July 2007, the Claimant disbursed the sum of N55,900,364.60 into the Defendant’s Mortgage Loan Account No. 0002621055 ( see Exhibit C8). Exhibit C4 is proof of the Deed of Legal Mortgage between the Claimant and the Defendant. Exhibit C10 proves that on the 6th of February 2007 the Claimant granted a DASS or DASSAL loan of N45,000,000.00 to the Defendant vide her Account No. 0000024755. Exhibit C10 further shows that on 21 February 2007, the loan was reversed and rebooked by debiting the Defendant’s Account No. 0000024755 (Exhibit C10) and crediting the sum of N54,000,000.00 to the Defendant’s Account to purchase more Dangote shares. The Claimant’s witness further testified (paragraph 12 of his Statement on oath) that the Defendant repaid only two installments of N1,397,509.12 each in the total sum of N2,795,018.24 on the mortgage loan leaving a balance of N53,105,346.36 outstanding as of 30 May 2009. The Claimant’s uncontroverted evidence further, is that the Defendant’s outstanding mortgage loan as of 21 January 2011, inclusive of principal and interest was N61,442,852.02 whilst Dangote Sugar loan stood at N76,414,661.32 making a total of N137,858,513.34. This amount is shown as rebooked in the Defendant’s Account No. 0027848273 as shown in exhibit C9.
13. The witness gave evidence that the Dangote Sugar shares purchased with the loan given to the Defendant was used as collateral for the loan facility and deposited with the Central Securities Clearing System (CSCS) Ltd and the Defendant by a letter dated 27 September 2007 (Exhibit C14) addressed to the Nigerian Stock Exchange, conveyed her irrevocable authority to BFCL Assets and Securities Ltd to sell the shares she pledged as collateral in the event of default on the loan facility without recourse to the Defendant. That, following the Defendant’s failure to repay the Mortgage and Dangote Sugar loans, the Claimant by a letter dated 21 March 2014 (Exhibit C15) an Indemnity Agreement (Exhibit C16), applied to the CSCS for the transfer of the Defendant’s shares to EDC Securities Limited for the sale of the stock to liquidate part of the Defendant’s indebtedness to the Claimant. The Claimant gave evidence that the CSCS transferred the Defendant’s shares to the EDC Securities Limited and subsequently sold the shares and that the sum of N23,921,486.90 was realized from the sale of the shares. By exhibit C13, the Claimant showed that as of 31 May 2013, the Defendant’s indebtedness on the mortgage loan and Dangote Sugar loan stood at N150,477,518.20 and was warehoused in the Defendant’s Memorandum Account No. 2112197187 (Exhibit C18). That the sum of N23,921,486.90 realised from the sale of the Defendant’s stock and dividends was deducted from the outstanding balance of N150,477,518.20 leaving a balance of N126,556,031.30.
14. The Defendant has not challenged the evidence of the Claimant and there is no evidence stating otherwise. The Claimant has therefore proved that the Defendant is indebted to it in the sum of N126,556,031.30 and entitled to judgment in the sum. I so hold.
15. The Claimant also seeks for interest on the above sum at the rate of 25% per annum from 29 January 2015, until judgment and thereafter at the rate of 10% until the judgment sum is finally liquidated. The claim for interest is premised on the proviso under the repayment terms upon separation in Exhibit C2 wherein the Defendant covenants to pay interest as follows:
“Balloon payment of all outstandings at separation, failing which, interest on the loan will revert to the current market rate.”
16. The Claimant argues that the Defendant agreed to pay interest at the bank’s current market rate if the loan remains unpaid at separation. The Claimant pleaded its entitlement to interest in paragraph 28 of its Statement of Facts. The Claimant argues that the Defendant resigned her employment on 21 July 2008 and the bank’s current market rate is 25% per annum. However, the Claimant failed to prove to this Court that the bank’s interest rate at the time of filing was 25%. The Claimant has therefore not proved its entitlement to pre-judgment interest on the outstanding sum of N126,556,031.30 at the rate of 25% per annum from 29 January 2015 to the date of judgment. The Claimant has not asked for interest at the prevailing interest rate but at the rate of 25% which it has failed to prove to be the current market rate ast provided in exhibit C2. On this ground, I find and hold that the Claimant has not proved its entitlement to the second relief.
17. The Claimant further seeks an order of sale of the property known as House 1B, Plot 1, Block 35, Lekki Peninsula Scheme 1, Lagos which was purchased with the mortgage loan as shown in exhibit C2. The uncontroverted evidence of the Claimant is that the Defendant covenanted to perfect the title documents in her name and domicile the original title documents with the Claimant until full repayment of the loan and to also register the bank’s interest as Mortgagee. The Defendant failed to do this. However, the proviso to Clause 2 of the Deed of Legal Mortgage (Exhibit C4) states that:
“PROVIDED ALWAYS that none of the above shall exclude the bank from exercising its right of sale under the mortgage in the event that the outstanding balance is not paid.”
18. The above provision in exhibit C4 gives express power of sale to the Claimant in respect of this property in the event that the Defendant fails to meet her repayment obligation. I therefore find that the Claimant is entitled to this relief. I so hold.
19. In coming to the above decisions, I considered the totality of the Loan Agreement (exhibit C4). It had as its tenor of repayment; 20 years. This Court has in the past frowned at the practice of banks demanding the full liquidation of staff loans immediately after terminating the employment of the employee. See First Bank of Nigeria Limited v. Mr Abiodun Oladipo Olatunji Suit No. NICN/LA/57/2017 judgment which was delivered on 20th June 2018 where this Court per E. A. Oji held that “the outstanding sum is to be offset by the monthly payment of N114,583.33 as provided in the loan agreement. See also Uchanma Ndukwe v. Diamond Bank Plc Suit No. NICN/LA/427/2015 judgment of which was delivered on April 26th 2018, where this Court per Justice JD Peters restrained the Defendant “from demanding the mortgage loan till after the 18 years tenor has elapsed as contained in the letter of offer dated 17/6/14”. The difference between these cases and the present case is that the employees therein were terminated, unlike in this case where the Claimant gave uncontroverted evidence that the Defendant resigned her appointment. That explains the finding that the Claimant is entitled to its claim.
20. For the avoidance of doubt, this suit succeeds, except for relief two. I hold that the Claimant is entitled to the sum of N126,556,031.30 being the outstanding balance on the mortgage loan and Dangote Sugar refining loan granted to the Defendant by the Claimant as at 29 January 2015. Relief two for interest on the sum of N126,556,031.30 at the rate of 25% per annum from 29 January 2015 until judgment is delivered and thereafter at the rate of 10% until judgment sum is satisfied fails for lack of proof that 25% is the current interest rate. Relief three succeeds. I order and direct the attachment and sale of the property known as House 1B, Plot 1, Block 35, Lekki Peninsula Scheme 1, Lagos, which was purchased with the mortgage loan advanced to the Defendant by the Claimant in satisfaction of the judgment sums in this suit. Cost of this action is set at N500,000.00 (Five Hundred Thousand Naira) against the Defendant.
Judgment is entered accordingly.
Hon. Justice Elizabeth A. Oji PhD