Facts:

The respondent, a trading company engaged in the business of importation and sale of motor vehicles, is a customer of the appellant and was granted some credit facilities. The first facility was granted to the respondent sometime in 2002 and in the offer letter, the sum of N400,000,000.00 (Four Hundred Million Naira) out of which N250,000,000.00 (Two Hundred and Fifty Million Naira) was for sale and lease back while the remaining N150,000,000.00 (One Hundred and Fifty Million Naira) was for importation. The parties agreed that interest rate chargeable on the facility would be 29% per annum but subject to changes from time to time in accordance with government regulations including market forces.

The respondent alleged that the appellant was making excessive deductions by way of charges from its account and consequently, wrote several letters to the appellant complaining about the charges and requesting reversal of same. When the appellant failed to address the complaints, the respondent engaged the services of a financial consultancy firm, Corimol Nigeria Limited, to reconcile its account with the appellant. The consultancy firm carried out its mandate and came up with its report in September 2006 which was made available to the parties. It was discovered that the appellant had deducted excess charges from the respondent’s account to the tune of N119,372,290.27 (One Hundred and Nineteen Million, Three Hundred and Seventy Two Thousand, Two Hundred and Ninety Naira, Twenty Seven Kobo). In computing the figures, the firm discovered that the appellant applied interest rates far above the directives of the Central Bank of Nigeria issued at various times.

The respondent made repeated demands for a refund but the appellant refused to accede to its request. In order to recover the money, the respondent filed a suit against the appellant at the High Court of Lagos State. The parties filed their pleadings and the appellant incorporated a counterclaim in its defence. The matter went to trial and at the end of proceedings, the court delivered judgment in favour of the respondent and dismissed the counterclaim of the appellant. However, the court did not make any pronouncement on the relief sought by the respondent relating to the 100% penalty to be paid on the excess charges as directed by the Central Bank of Nigeria (CBN), in its guidelines. The appellant was dissatisfied with the decision of the trial court and filed a notice of appeal at the Court of Appeal, Lagos Division. The respondent was also dissatisfied with the aspect of the judgment relating to its relief not addressed and consequently, filed a cross appeal.

One of the issues for determination is whether the lower court was right in delivering judgment in favour of the respondent after arriving at the conclusion that the evidence of the respondent’s witness was not contradicted as to the various guidelines of the CBN nor contradicted in terms of the cumulative effect regarding rates, interest and charges on the facilities.