Miss Eze Kita Odiete Daura & Anor v. Union Bank of Nigeria Plc

Hon. Justice Kita Odiete Georgeman, Judge of the High Court of Delta State, in her life time, between 12-6-2008 and 24-7-2008 applied for, obtained and utilized a loan of Six Million Naira with interest at the rate of 18% per annum at monthly rests. Before she could complete repayment of the said loan sum, she died on 1-8-2008.

The appellants as children of the late Hon. Justice Kita Odiete Georgeman applied by a motion ex parte filed on 24-8-2009 in the Uvwie Area Customary Court of Delta State for an order granting them “Letters/Powers of Administration of the Estate, both real and personal, of Hon. Justice Kita Odiete Georgeman (deceased)” and an order to enable them operate, manage and withdraw monies from the account of late Hon. Justice Kita Odiete Georgeman with First Bank of Nigeria PLC in which the loan sum was deposited by Hon. Justice Kita Odiete Georgeman before she died on 1-8-2008. The Uvwie Area Customary Court granted the application. The appellants thereupon became the administrators of the estate of the late Hon. Justice Kita Odiete Georgeman.

As administrators of

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the said estate, the appellants withdrew monies standing to the credit of Hon. Justice Kita Odiete Georgeman in the First Bank of Nigeria PLC and used all the monies without repaying the said loan that had become a debt payable by the estate.

The respondent herein on 18-1-2010 commenced Suit No UHC/5/2010 in Delta State High Court at Ughelli against the appellants herein as administrators of the Estate of late Hon. Justice Kita Odiete Georgeman to recover the loan sum and interests.

The exact text of the reliefs claimed for read thusly-
14. “As at the death of the said late Justice K. O. Odiete- Georgeman, she was having the sum of N15,372,668.97 (Fifteen Million, Three Hundred and Seventy Two Thousand Six Hundred and Sixty Eight Naira, Ninety Seven Kobo) in her First Bank Account which sum was over and above her indebtedness to the Claimant.
15. The Claimant shall at the trial contend that by virtue of the Customary Letters of Administration granted in favour of the Defendants, they are under obligation to pay the debt of their late mother, late Justice K. O. Odiete- Georgeman to the Claimant.
a. The sum of N6,000,000.00 (Six

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Million Naira) being the loan granted by the Claimant to late Hon. Justice K. O. Odiete Georgeman (the deceased mother of the Defendants) sometimes in July, 2008.
b. The sum of N4,934,616.90 (Four Million, Nine Hundred and Thirty Four Thousand, Six Hundred and Sixteen Naira Ninety Kobo) which sum represents the accrued interest as at December, 2009 on the sum granted by the Claimant to the Hon. Justice K. O. Odiete Georgeman.
c. 29% (percent) per annum of the principal sum and the accrued interest still judgment is given and/or when same is fully liquidated.”

After the conclusion of evidence and written addresses by all parties to the suit, the trial Court on 30-3-2012 rendered its judgment holding that the respondent did not prove its case and dismissed the suit.

The concluding part of the judgment reads thusly-
“The letter i.e Exhibit D was received and acknowledged on 30/7/08. Though it is curious that Exhibit E was raise before Exhibit D was accepted, it does not take away the fact that the deceased loaned the sum of N6,000,000 from the claimant. That the deceased did not tell the defendants does not take away the fact that

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the evidence that the deceased borrowed the sum of N6,000,000 from the claimant. I believe the evidence that the deceased borrowed the sum of N6,000,000 from the claimant.
Having settle the fact that the loan was advanced to the deceased, the big question is whether the claimant is entitled to its claim. To answer this my opinions, findings and comments on issues 3, 4, 5, 6, and 7 above are necessary, particularly issue 3 and 6. It is my firm opinion that the defendants will only be responsible as administrators of the estate to pay off the loan if the claimants they had notice of as Administration of the estate before they expanded the proceeds from the estate of the deceased. The Defendants’ case which I believe is that the claimant did not notify them of the loan the deceased took from them before they finished expanding the proceeds from the estate of the Late Hon. Kita Odiete Georgeman. The evidence before me which I believe and act on is that Exhibits F and L were not delivered to the defendants and before they knew of the loan by this action instituted on 18/1/10, they had gotten the letter of administration on 25/9/08. This is almost one and a half

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years before the suit was instituted. Before this, the defendants had expended the proceeds of the Estate. This is their claim and there is no contradiction of this from the claimant.
In the light of all this, can the claimants case succeed against the defendant? Before I answer this question, there is a curious issue which I can mention by way of obiter. On 11/7/08, the defendant filed an ex parte application for a letter of administration against 6 banks including the claimant. This is Exhibit G. This was withdrawn and Exhibit H was filed on 25/9/08. On same day, the application was moved and granted. This is curious and I imagine does not comply with the law as it relates to procuring a letter of administration from the Court which requires that to get response from the defendant, the Court should give an adjournment after moving before granting.
The speed with which it was done leaves much to be desired and leaves a soar tastes. It is also curious that the defendant withdrew the earlier application with the claimant as defendants and replaced with another in which the claimant is not defendant. Why was this so? Could it be because the present

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defendant decided to sidetrack the claimant because of knowledge of the loan. This is mere speculation as this was not an issue and as a Court I cannot speculate or make a case for any of the parties. See ADIM Vs NBC LTD. (Supra), Longe Vs FBN Plc (Supra).
The claimant did not make an issue of it under cross-examination and so I will not. All that the claimant tried to show about the defendant’s knowledge of the loan is Exhibits F and L which in my opinion were not delivered. In the circumstances, it is safe to hold that the defendant had no knowledge of the loan until the suit and by which time the proceeds had been expended and so there is no money to offset the loan and as such the claimant has to pay for its failure to act on time to notifying the defendants of the loan the deceased, their mother took from the bank. This delay is a fundamental defect of their case.
I have difficulty in agreeing from the evidence before me that the deceased took a N6,000,000 facility which she has a duty to pay back herself since it was a personal loan. On her death, they should be paid off with the proceeds from her estate by the administrators. I agree that the

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administrators must first settle liabilities before sharing the balance to the beneficiaries. The administrators without due communication or knowledge either actual or constructive cannot settle a liability they know nothing about. Now the proceeds of the estate are all gone which the claimant accepts, where does the claimant expect the defendants to get money from to settle the liability of the deceased to the claimant. As sad as it is, Court deals with evidence and law. In my opinion and in the light of the evidence before me, the claimants case against the defendants cannot succeed. The claimant’s claim fails in its entirely and hereby dismissed with N10,000.00 (Ten Thousand Naira) cost in favour of the Defendant.”

Dissatisfied with this decision of the trial Court, the respondent herein appealed against to the Court of Appeal. Following filing, exchange and adoption of written addresses by the parties, the Court of Appeal on 6-3-2015 rendered its judgment, resolved issues 1 and 3 in favour of the appellant, allowed the appeal in part, holding inter alia thusly-
“I agree with the appellant therefore that the evidence to the effect that the sum

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in the letter of administration is under the care of the respondents, elicited under cross-examination is relevant and material to the case at hand.
Furthermore, a plea of plene administravit raised by the respondents is a plea in bar entered by an executor or administrator by which he affirms that he had not in his possession on the time of the commencement of the suit, nor had at any time since any of the goods of the deceased to be administered. When the plaintiff replies that the defendant had goods in his possession at that time, and the parties join issues; the burden usually being on the plaintiff from the evidence so far elicited as indicated above, I do agree with the appellant that the respondents failed to lay evidence as to how the estate of the deceased was administered and whether there still remain assets which would in the circumstance satisfy the loan against the deceased. I note that the respondents apart from the monetary assets left by the deceased did not state whether they administered other assets left by the deceased. I share the view therefore that the holding of the lower Court to the effect that the proceeds of the estate are

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all gone, and therefore where will the defendants get money to settle the liability of the deceased as a misapplication of the law and a travesty of justice.
It is my view which agrees with that of the appellants, that the first duty of the administrator is to settle debts or against the estate. It is not right and equitably unjustified to hoodwink a debtor on the premise that the assets and estate of the debtor has been distributed amongst beneficiaries. I resolve this in favour of the appellants.
Issue two
Whether on the death of a Banker’s customer, further interest on the loan taken should be terminated.
This issue raises a straightforward question, whether upon the death of a customer, as in the present case, interest on the loan outstanding against the deceased person ceases to be charged against the loanee’s account.
I think that the learned counsel for the respondent and the lower Court are correct when they stated that once the appellant are fully informed of the demise of the loanee, the contract and by implication the accrual of interest is terminated. This is because the relationship of the two parties was founded on

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simple contract and the death of one of the parties determined the agreement. See D. Stephen’s Industries Vs BBCI of Credit and Commerce Int’l (1999) 7 SCNJ 238 at 241. It is however for the estate of the deceased to notify the debtor bank promptly in order to arrest the accrual of interest as the loan undoubtedly survives the death of the borrower. It follows therefore that as at the time when the appellant was fully made aware of the death of the customer, interest on the loan is arrested forthwith. Consequently the computation of interest as done in Exhibit M, cannot be justified in view of the admission by the appellant that they knew of the death of the customer shortly thereafter. I resolve this issue against the appellant.”

The Court of Appeal then granted the reliefs claimed for by the respondent in its amended statement of claim in the trial nisi prius in the following terms-
1. “The 1st and 3rd issues having been determined in the appellants’ favour, this appeal succeeds in part and it is hereby allowed.
2. The claim of the claimant/appellant against the defendants/respondents for the sum of N6,000,000 (Six Million Naira) is hereby

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granted with 18% interest from the date the loan was granted to the deceased to the 5th of November 2008, when the appellant admitted knowing about the death of the deceased customer.
3. Court interest at 10% per annum from today to the final liquidation of the debts. Costs of N50,000 are awarded to the appellant.”

Dissatisfied with this judgment, the appellants herein appealed against it by a notice of appeal filed on 7-4-2015.

The parties herein filed, exchanged and adopted the following briefs – appellants’ brief, respondent’s brief and appellants’ reply brief.

The appellants’ brief raised the following issues for determination-
1. “Whether given the facts, evidence adduced and the extant law in this case, the Court of Appeal was right in holding that an Administrator who has fully administered the estate of a deceased cannot be heard to say that there is no fund left to settle the alleged debt of the deceased which the administrators had no notice of?
2. Whether the Court of Appeal can validly re-evaluate the evidence of parties and/or whether the Court of Appeal properly evaluated the evidence of Dw2/Appellants when it

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came to the conclusion that the lower Court was wrong to conclude that there was no fund left in the Estate of the deceased to liquidate the alleged loan?
3. Whether the Court of Appeal was right in holding that evidence extracted under cross-examination not pleaded by the Respondent herein as Claimant in the lower Court is admissible, material and relevant to the case of the Respondent herein.
4. Whether the Court of Appeal was right in holding that a contract between a Banker and Customer upon the death of such a customer can only be validly terminated upon a formal Notice of death given to the Respondent’s bank and thus proceeded to award interest on the loan sum, up to 5/11/2008 after the death of the deceased, being the time the Respondent’s bank claimed to have notice of the deceased?”

The respondent’s brief raised four issues for determination as follows-
1. “Whether given the facts, evidence adduced and the extant law in this case, the Court of Appeal was right in holding that the Appellants’ first duty is to settle debts or Claims against their mother’s Estate and/or whether the appellants as administrators can be head to say

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that there is no fund to settle the deceased debt.
2. Whether the Court of Appeal was right in holding that the sum in the letter of administration is under the care of the Respondents’ (Appellant).
3. Whether the Court of Appeal was right in holding that evidence extracted under cross-examination by the Respondent is admission, material and relevant to the case between the parties.
4. Whether the Court of Appeal was right in granting of 18% from the date the loan was granted to the deceased to the 5th of November, 2008 when the Respondent became aware of the death of the deceased customer.”
I prefer to determine this appeal on the basis of the issues raised for determination in the appellants’ brief.

Let me determine issues 1, 2, and 3 together as they relate to the evidence of availability of funds or assets of the estate to pay the debt due to the respondent from the estate after the administrators of the estate had expended the N15,372,689.97 they withdrew from the First Bank account of the late Justice Kita Odiete Georgeman.

The trial Court found that there is no evidence of the existence of any funds or assets of the

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estate from which the debt due from the estate to the respondent can be paid after their expenditure of the money withdrawn by them from the First Bank Account of late Hon. Justice Kita Odiete Georgeman. The Court of Appeal held that the evidence of the existence of funds of the estate at the date of commencement of the suit from which the debt due to the respondent from the estate could be paid is contained in the testimony of DW1 (the 1st appellant herein) under cross-examination thusly- “In the letter of administration the total amount in the account is N15,372,689.97 other banks. That sum is under our care”

I agree with the decision of the Court of Appeal that the trial Court’s decision that the DW1’s testimony under cross-examination goes to no issue as it is contrary to the pleadings is wrong. The testimony is in line with the pleadings and is therefore relevant and admissible having regard to paragraphs 8, 9, 10, 11, 2, 14, and 15 of the appellants’ amended statement of claim and paragraphs 10, 11, 12, 14 and 18 of the amended statement of defence.

Paragraphs 8, 9, 10, 11, 12, 14 and 15 of the appellants’ statement of claim aver thusly-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”>

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8. “The Claimant avers that after the death of the said Justice Kita Odiete Georgeman, the representatives of the claimant visited the Defendants to commiserate with them over the death of their mother to also inform them of their late mother’s indebtedness to the Bank. The 1st Defendant visited the Ugheli Branch of the Claimant where she assured the Bank’s Representative of her readiness to pay the said debt after obtaining the relevant Letters of Administration. The Claimant shall at the trial rely on the letters dated 5th November, 2008 sent to the Defendant.
9. The Claimant further avers that the Defendants subsequently filed an application at the Uvwie Area Customary Court for a grant of Customary Letters of administration in which the Claimant was made one of the Defendants. The said application was served on the Claimant. The Defendants subsequently withdrew the said application. The Claimant shall at the trial rely on a copy of the said application.
10. The Claimant avers that unknown to it; the Defendants filed another application for customary Letters of Administration at the Uvwie Area Customary Court in which application only First

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Bank PLC was made a Defendant. The Application was granted on 25th of September, 2008. The Claimant shall at the trial rely on the said application the enrolment of order and a copy of the ruling
11. The Claimant further avers that after the grant of the application in favour of the Defendants, the latter withdrew the money stated in the order and refused to pay their late mother’s debt to the Claimant despite repeated demand for same.
12. The Claimant avers that when the Defendants refused to come forth to make good their promise to pay their mother’s debt to the Claimant, the latter wrote a letter to the 1st Defendant demanding the payment of the said debt. The Claimant shall at the trial rely on a copy of the said letter dated 26th August, 2009
14. As at the death of the said late Justice Kita Odiete Georgeman, she was having the sum of N15,372,668.97 (Fifteen Million, Three Hundred and Seventy Two Thousand Six Hundred and Sixty Eight Naira, Ninety Seven Kobo) in her First Bank Account which sum was over and above her indebtedness to the Claimant.
15. The Claimant shall at the trial contend that by virtue of the Customary Letters of

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Administration granted in favour of the Defendants, they are under obligation to pay the debt of their late mother, late Justice Kita Odiete Georgeman to the Claimant.”

Paragraphs 10, 11, 12, 14 and 18 of the respondents’ amended statement of defence aver that-
10. “In answer to paragraphs 9, 10, and 11 of the Amended Statement of Claim, the Defendants aver that they on behalf of the children of Late Hon. Justice Kita Odiete Georgeman filed an application for the grant of Letters of Administration at the Uvwie Area Customary Court and were granted the Letters of Administration by the Uvwie Area Customary Court in respect of the Estate of their Late mother Late Hon. Justice Kita Odiete Georgeman on 25-9-2008. The Defendants shall at the trial found and rely on the Enrolment of Order made on 25-9-2008.
11. In further answer to paragraphs 9, 10 and 11 of the Amended Statement of Claim, the Defendants aver that the Uvwie Area Customary Court in granting their application also deducted the sum of N823,640.00 (Eight Hundred and Twenty-Three Thousand, Six Hundred and Forty Naira) being 5% Estate Tax of the credit balance in their mother Late Hon.

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Justice Kita Odiete Georgeman account Nos. 201001185501 and 51520100111855 with First Bank of Nigeria Plc and which sum was paid to the Registrar of the Court for which an official revenue collectors receipt was issued. The Defendants shall at the trial found and rely on the said Revenue Collector’s Receipt dated 14-10-08.
12. In answer to paragraphs 11, 12, and 13 of the Amended Statement of Claim, the Defendants aver that they did not withdraw any money belonging to the Claimant and also did not reach any understanding whatsoever with the Claimant to pay any alleged debt owed by their mother Late Hon. Justice Kita Odiete Georgeman
14. In answer to paragraph 14 of the Amended Statement of Claim, the Defendants aver that the sum of N15,372,668.97 (Fifteen Million Three hundred and Seventy-Two Thousand, Six Hundred and Sixty-Eight Naira, Ninety Seven Kobo) in their mother Late Hon. Justice Kita Odiete Georgeman’s First Bank Accounts do not belong to the Claimant.
18. Still in further answer paragraphs 12, 13, 14, 15, 16, 17 and 18 of the Amended Statement of Claim, the Defendants aver that having paid the sum of N823,640.00 (Eight Hundred and

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Twenty Three Thousand, Six Hundred and Forty Naira) being 5% Estate Tax to the Registrar of the Uvwie Area Customary Court, the Defendants proceeded to use the sums realized from the estate of Late Hon. Justice Kita Odiete Georgeman their mother for her burial and funeral rites/obsequies and thereafter distributed the remainder to beneficiaries of the estate of the Late Hon. Justice Kita Odiete Georgeman. The Defendants maintain that they are not obligated the claimant to pay the said sum claimed or any sum at all.”

The evidence in examination in chief of CW1 contained in his witness statement on oath restate the above paragraphs of the amended statement of claim. The evidence in examination in chief of DW1 (1st appellant) contained in her witness statement on oath restate the above paragraphs of its amended statement of defence.

It is clear from the above pleadings and evidence that both sides joined issues on whether the sum of N15,372,668.97 in the First Bank Account of Late Hon. Justice Kita Odiete Georgeman was still in the care of the appellants as administrators of the estate of their said late mother or completely expended on the burial and

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the remainder distributed. The respondent asserted that the appellants as administrators of the Estate withdrew the said sum from the said First Bank Account and refused to repay the debt due to the respondent from the estate. The appellants did not deny withdrawing the said money, but argued that it was not the respondent’s money they withdrew, that after spending part on the ceremonies for the burial of their late mother, distributed the remainder to the beneficiaries of the estate.

The Court of Appeal wrongly understood DW1’s testimony under cross-examination as meaning that the 15,372,689.97 Naira stated in the Letters of Administration withdrawn from the bank is still physically available in their possession and had not been spent at the time DW1 was testifying in Court. Such wrong meaning is the result of reading the said testimony of DW1 under cross-examination alone without regard to the above-reproduced pleadings and her testimony in examination in chief. What is clear from the pleadings and evidence of both sides is that the appellants withdrew the N15,372,689.97 in their late mother’s account in First Bank, spent part for her burial ceremonies

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and distributed the remainder amongst themselves as beneficiaries of the estate.

The appellants have continued to contend that having completely expended the sum of money they withdrew from their late father’s account in First Bank PLC, they have become incapable of performing their obligation as Administrators of the Estate of their late father to pay the debts due from the estate to creditors such as the respondent as the estate cannot afford to pay such debt. The trial Court asked “now the proceeds of the estate are all gone which the claimant accepts, where does the claimant expect the defendants to get the money from to settle the liability of the deceased to the claimant” and proceeded to hold that the claimants’ case against the defendants cannot succeed. The Court of Appeal decided differently on the basis of its views that the testimony of PW1 under cross-examination was evidence that the said money that was withdrawn from their late father’s account in First Bank was still in their possession and care and available for use to pay the debt from the estate to the respondent and proceed to grant the respondent’s claim in the terms stated in the

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judgment.

The approach of the two lower Courts in determining the liability of the administrators of the estate of Late Hon. Justice Kita Odiete Georgeman on the basis of whether or not the estate money withdrawn by them from First Bank PLC had been fully spent at the time before the administrators became aware of the existence of the debt due to the respondent from the estate is not correct.

The Administrator of an estate has the duty to first take steps to find out or identify any debts incurred by the deceased in his lifetime, which debts have now become debts due from the estates of the deceased, before distributing the estate to the beneficiaries of the estate. An administrator of an estate cannot avoid this duty by simply claiming or asserting that he or she is not aware of the existence of a particular debt and that therefore he or she is not bound to pay an estate debt he or she is not aware of. It is the duty of the administrator to take steps to identify and inventory both the assets and debts of the estate and pay the debts before distribution. In this case, the evidence shows that upon the death of their mother on 1-8-2008, the

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appellants proceeded to obtain letters to administer her estate on 25-9-2008 and thereafter withdraw the sum of N15,372,668.77 in their late mother’s account in First Bank PLC, that they expended part of the said money on burying their mother and distributed the remainder amongst themselves and that after burying their late mother, they did not, as the administrators of the estate, identify and inventory his assets and debts before distributing the remainder of the amount they withdrew from First Bank PLC.

It is obvious from the resolution of the children of the late Hon. Justice Kita Odiete Georgeman at their meeting of 10-9-2008 that the estate is constituted by real and personal estate of their late mother including her shares in Zenith bank PLC. This resolution was part of the document attached to the affidavit in support of the motion ex parte by which the appellants obtained the letters of administration of the estate from Uvwie Area Customary Court in Delta State. This application is pleaded in paragraphs 9 and 10 of the amended statement of claim and paragraphs 10 and 11 of the amended statement of defence and is in evidence as part of exhibits H

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and J.

The resolutions read thusly-
“At the meeting held by the children of the Late Hon. Justice Kita Odiete Georgeman at No. 11 Akhigbe Street, Opposite Gold Spot, Effurun, Delta State on 10th September 2008, it was resolved as follows-
1. That as a result of the death of Hon. Justice Kita Odiete Georgeman on the 1st day of August, 2008 the children hereby authrise Miss Ese Kita Odiete – Daura and Miss Cleopatra Barovbe (children of the Deceased) to apply for Customary Letters/Power of Administration to administer the Estate both personal and real of Justice Kita Odiete Georgeman
2. That Miss Ese Kita Odiete-Daura and Miss Cleopatra Barovbe should operate/manage and withdraw monies from the Bank Accounts and also take charge of the Zenith Bank Plc Shares of Hon. Justice Kita Odiete Georgeman (Deceased)
3. It is further resolved that the proceeds from the Deceased Bank accounts shall be used for the welfare and Education of his children.
4. That Miss Ese Kita Odiete-Daura and Miss Cleopatra Baroube should adopt all necessary and appropriate legal measures to achieve the above purpose.”

The affidavit in support of the

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motion ex parte applying for the grant of the letters of administration was deposed to by the 1st appellant herein. In paragraphs 12 to 17 therein she deposed thusly-
12. “That the deceased while she was alive was a High Court Judge with the Delta State Judiciary and maintained current Accounts with First bank Of Nigeria Plc. With account Nos. 201001185501 and 5152010011855.
13. That I know as a fact that the deceased is entitled to payment/withdrawal of monies from the said accounts with the Defendant.
14. That my late mother has other properties including cars, lands, buildings within Nigeria
15. That the children and family of Late Hon. Justice Kita Odiete Georgeman have agreed and duly authorized Applicants herein to administer the Estate of the deceased especially to operate/manage her Bank Accounts with the Defendant. A copy of the resolution is attached hereto and marked as Exhibit “C”.
16. That the said monies from the deceased accounts are needed for the burial of the deceased who is still in the Mortuary and for the upkeep of her children she left behind.
17. That I am informed by my Solicitor J.E Emelue (Mrs) of K.K.

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Iheme & CO., and I verily believed her that it is absolutely necessary to bring this application to obtain Customary Letters/Power of Administration from this Honourable Court so as to enable us operate/manage and withdraw monies from her said Accounts with the Defendant and to manage her other properties which includes cars. lands, buildings within Nigeria.”

It is glaring from the affidavit in support of the motion ex parte for the grant of the letters of administration and the resolution of the children of the late Hon, Justice Kita Odiete Georgeman in support of the application that their late mother also had buildings, lands cars, shares in Zenith Bank PLC in addition to the monies in the First Bank PLC and that the administrators of the said estates did not intend to pay any debt due from the estate. Payment of such debts was not stated in the affidavit and the resolution as part of the things the administrators were to do. As it is, the administrators can pay the debt due from the estate to the respondent from the other assets of the estate, if they have completely expended the money withdrawn from the First Bank PLC. In any case, assuming those

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assets do not exist, the appellants who are also beneficiaries of the estate are liable to pay the debt from the share of the money distributed to them. When an administrator of an estate has distributed the residue of an estate to the beneficiaries of the estate, an unpaid creditor of the deceased intestate can recover the debt due from the estate from that residue and the beneficiaries can be compelled to refund so much of the amount paid to them as may be required to satisfy the claim. See Hunter V Young (1879) 4 Ex D 258 and Dodson V Sanmell (1861) 30 L.J. Ch 799)
In the light of the foregoing, I resolve issues Nos. 1, 2, and 3 against the appellants.

Let me now determine issue No. 4 which asks- “Whether the Court of Appeal was right in holding that a contract between a Banker and Customer upon the death of such a customer can only be validly terminated upon a formal Notice of death given to the Respondent’s bank and thus proceeded to award interest on the loan sum, up to 5/11/2008 after the death of the deceased, being the time the Respondent’s bank claimed to have notice of the deceased?”
I have carefully read and considered the

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arguments in all the briefs on this issue.

Learned counsel for the appellant contends that the banker-customer relationship between the respondent and Hon. Justice Kita Odiete Georgeman being a simple contract terminated upon the death of Hon. Justice Kita Odiete Georgeman on 1-8-2008, that therefore the respondent’s contractual right to charge interest on the loan collected by Hon. Justice Kita Odiete Georgeman under that banker customer relationship ended with the termination of the contract and that therefore the Court of Appeal erred in law when it held that the banker customer contract and the banks contractual right to interest on the loan obtained under the banker customer relationship continues even after the death of the customer until the bank is formally notified in writing of the death of the customer.

Learned Counsel for the respondent contended to the contrary that since the respondent is entitled to interest on the said loan, the decision of the Court of Appeal is correct in law.

Let me now determine the merits of these arguments.
Generally, the death of a customer of a bank brings to an end the banker-customer

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relationship contract between that customer and the bank, However, the banker-customer relationship being primarily that of a debtor creditor, an existing obligation to pay money under the contract and entitlement to be paid money under the contract survive the termination of the banker customer contract. Just as the obligation of a bank to pay interest on money standing to the credit of a customer in his or her account is not affected by the death of the customer and survives that death as part of his estate, the customer’s obligation to pay periodic interest charges on loans or overdrafts applied for and obtained from the bank survive the death of the customer and becomes a debt on his or her estate. The agreement to pay interest on the loan subsists so long as the loan remains unpaid and the death of the debtor customer will not affect it. The accruing interest is money the bank is contractually entitled to be paid on the loan it gave the customer.
I think it is necessary to restate the nature of the legal relationship that arises between a bank and its customer, when the customer applies for a loan from the bank and agrees to repay same on written

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terms and conditions. In a situation such as this, the banker customer relationship is the primary contract that exists before the customer’s application for loan. This primary contract is the platform on which the customer was able to apply for and secure the loan. The loan contract is contained in the application for the loan, the letter granting the loan and stating the terms and conditions of the loan, his acknowledgment of receipt of the letter and cheque by which he withdrew the loan sum. The acceptance of the written terms and conditions for the grant of the loan brought into being a loan contract with a life of its own separate from the primary contract of banker customer. The death of the customer would not terminate the loan contract until the loan is fully repaid by his estate.
The Court of Appeal was wrong to have ordered interest charges to stop on 5-11-2008, when the respondent became aware of the death of its customer, Late Hon. Justice Kita Odiete Georgman, while the loan remain unpaid by the administrators of the estate that utilized the entire loan sum. Since there is no appeal complaining against that part of the decision of the Court of

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Appeal that stopped interest charges after 5-11-2008, instead of allowing it till the loan was fully repaid in keeping with the loan contract, this Court will not interfere with it.
For the foregoing reasons, I resolve this issue against the appellants.

On the whole, this appeal fails as it lacks merit. It is accordingly dismissed.
Judgment of the Court of Appeal is hereby affirmed.