MAKWE V. NWUKOR

Issue:

The plaintiffs claims before the High Court of former Bendel State holden at Asaba as amended, against the defendants jointly and severally are for- "(1) An order of court on the 1st defendant to pay the 2nd defendant the amount of loan he took from the 2nd defendant plus interest and other charges on the said loan. An order of court on the defendants to return to the plaintiff the plaintiffs Statutory Certificate of Occupancy. To exchange the plaintiffs Certificate of Occupancy with the 1st defendant's Customary Certificate of Occupancy and/or order the defendants to make the 1st defendant the surety to the loan and execute Deed of Mortgage on the Statutory Certificate of Occupancy on the loan of N200,000.00 (Two hundred Thousand Naira only). Perpetual injunction restraining the defendants from interfering with the plaintiffs possession and ownership of the property described in the plaintiff s Statutory Certificate of Occupancy. The first defendant applied to the second defendant bank for a loan of N200,000 upon a guarantee provided by the plaintiff in respect of his property. The plaintiff deposited his Certificate of Occupancy to his property with the 2nd Defendant bank as an additional security for the said loan. The 1st defendant had also deposited his Customary Certificate of Occupancy which had been converted to a Statutory Certificate of Occupancy as security for the same loan. A tripartite legal mortgage, Exhibit E was executed duly signed by the plaintiff guaranteeing the said loan. After taking full advantage of the said loan, the 1st defendant abandoned his account with the 2nd defendant and defaulted in payment of the loan. The plaintiff and 1st defendant had also entered into an agreement of how the 1st defendant would operate his account with the 2nd defendant. Second defendant was not a party to the said agreement (Exhibit A). The 2nd defendant made several demands from both the plaintiff and the 1st defendant to pay the said loan but rather than reply positively, the plaintiff instituted this action at the High Court. The trial court after due trial, entered judgment for the plaintiff. The 2nd defendant bank appealed to the Court of Appeal which allowed the appeal and held that it was an error of law for the trial court to have arrived at the conclusion that 2nd defendant bank was bound by the terms of the agreement, Exhibit A, to which it was not a party. The plaintiff has now appealed to the Supreme Court.