As far back as the year 1980, the 3rd appellant had an account with the respondent bank. The account number is 400127. Initially the 3rd appellant was granted an overdraft facility for the sum of N80.000. By the year 1982, the outstanding amount of the overdraft stood at N487,375.50.

At the instance of the 3rd appellant the respondent bank converted the overdraft account into a loan account and the account number was variously referred to as 400127/62586,44014/62586/400127. Pursuant to the conversion, the appellant mortgaged to the respondent bank properties covered by Certificates of Occupancy Nos BO/1621 and NE/1367 belonging respectively to the 2nd and 1st appellants. A deed of legal mortgage dated 13/10/82 registered as No. 347 at page 347 vol. 7 (Misc.) of the Lands Registry was executed by the parties with 1st and 2nd appellant as mortgagors/sureties, 3rd appellant as borrower and respondent as mortgagees.

It is the appellants case that in November 1982 when the respondent drew their attention to the outstanding amount, the 1st appellant and the respondent bank agreed that the amount should attract interest at the rate of 13% but rather than adhere to this agreement, the respondent inflated the interest rate. The appellants further claimed that they paid to the respondent bank sum of N1,189,963.26k; that the 1st appellant again paid under duress the sum of N300,000 and finally that the Nigerian Bank for Commerce and Industry (NBCI) paid on their behalf the sum of N82,257.74 on 19/7/84. By reason of all these payments the appellants contend they have fully liquidated their indebtedness to the responent bank. They relied on the 3rd appellant's statement of account with the respondent which was admitted in evidence as Exh. "B".

On its part, the respondent denied reaching agreement with the 1st appellant on the interest rate maintaining that interest rates are charged in accordance with the Central Bank guidelines. The respondent addmitted that the 1st appellant paid the sum of N300,000 but denied it was paid under compulsion. It is the respondent's case that the appellants are still indebted to it to the tune of N1,858,622.15 as at 28th July 1993. Regarding the sum of N82,297.74 paid by the NBCI the respondent expalined that the NBCI paid the amount for the release of another C of O No NE/154 held by the respondent as security for another overdraft of N40,00 it granted to the 3rd respondent which had risen to N82,297.74. The NBCI took that step so as to use the C of O No NE/154 as security for its own loan to the 3rd appellant. By a letter dated 19/3/84 Exh. J4 the respondent bank remided the 3rd appellant of its default in repayment of the loan and in response the 1st appellant by a letter dated 29/3/84 Exh. J. pleaded for ti to reapy the loan. As the appellants were unable to liquidate the loan, the respondent in accordance with the terms of the legal mortgage served them notice of its intention to exercise its powere of sale.

Upon the foregoing conflicting assertions of the parties Mshelta J on 31/5/96 dismissed the appellants' claims in their entirety and entered judgment for the respondent in terms of its counter-claim.

The appellants were aggrieved and appealed.