➥ CASE SUMMARY OF:
Mbosowo A. Ekpo v Guaranty Trust Bank Plc (2018) – CA
by “PipAr” B.C. Chima
Court of Appeal – CA/C/324/2013
➥ JUDGEMENT DELIVERED ON:
Friday, 30th November, 2018
➥ AREA(S) OF LAW
Pre trial conference;
Admissibility of bank statement.
➥ NOTABLE DICTA
⦿ PROCEEDING WILL NE REGARDED AS A NULLITY – JURISDICTION
Generally, proceedings before the Court of law can be regarded as a nullity where:- (a) The Court is not properly constituted as regards numbers and qualifications of the members of the bench. (b) The subject-matter of the action is not within the jurisdiction of the Court. (c) The case before the Court is not initiated by due process of law, or that there is a condition precedent to the exercise of jurisdiction. See MADUKOLU V NKEMDILIM, (1962)1 ALL N.L.R 587. — M.L. Shuaibu, JCA.
⦿ CONTRACT CREATES RECIPROCAL OBLIGATIONS
A contract is an agreement between two or more parties which creates reciprocal obligations to do or not to do a particular thing. Thus, for a valid contract to be formed, there must be mutuality of purpose and intention. In other words, the two or more minds must meet at the same point, event, or incident. They must not meet at different points, events or incidents. They must be saying the same thing at the same time. See ORIENT BANK (NIG) PLC V BILANTE INTERNATIONAL LTD (1997) 8 NWLR (pt. 515) 37. — M.L. Shuaibu, JCA.
⦿ PLAINTIFF MUST RELY ON HIS OWN STRENGTH, NOT WEAKNESS OF THE DEFENCE
It is settled that in a claim for declaratory reliefs, the plaintiff must prove his entitlement thereto, by cogent and credible evidence. He must rely on the strength of his own case and not on the weakness of the defence. Indeed, a declaratory relief will not be granted on the basis of an admission by the adverse party. See MOHAMMED V WAMMAKO (2018)7 NWLR (pt 1619) 573 at 591 – 592. — M.L. Shuaibu, JCA.
⦿ WHAT IS A SECURED DEBT
A secured debt is a debt on which payment is guaranteed by an asset or a lien. This means that a secured debt has collateral to reduce the risk associated with lending, such as mortgage. Where the borrower defaults on payment, the bank seizes the mortgage property, sells it and uses the proceeds realized to pay back the debt as the property is liable to forfeiture. — M.L. Shuaibu, JCA.
⦿ UNLESS AGREED, NOTICE NOT NEEDED BEFORE COMMENCING PROCEEDING AGAINST PRINCIPAL DEBTOR
The fact that the obligations of the guarantor arises only when the principal debtor has defaulted in his obligations to the creditor does not mean that the creditor has to demand payment from the principal debtor or from the guarantor or give notice to the guarantor before the creditor have to commence proceedings against the principal debtor unless there is an express terms in the contract requiring him to do so. See C.B.N V INTERSTELLA COMMUNICATIONS LTD (2018) 7 NWLR (Pt. 1618) 294 at 494. — M.L. Shuaibu, JCA.
⦿ REPUDIATION OF CONTRACT CANNOT BE DONE BY ONE PARTY ALONE
Contracts are made by parties and the Court interprets same. Repudiation of contract cannot be done by one party, see ADENIYI VS GOVERNING COUNCIL OF YABA TECH (1993) LPELR-128(SC) held thus; “But repudiation by one party standing alone does not terminate the contract. It takes two to end it, by repudiation on the one side, and acceptance of the repudiation on the other.” — Nimpar, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Muhammed Lawal Shuaibu, J.C.A.
⦿ FOR THE APPELLANT
Eno T. Offong, Esq.
⦿ FOR THE RESPONDENT
Michael Afu Esq.
➥ CASE HISTORY
The appellant and the 2nd respondent approached the 1st respondent sometime in 2003 for a loan facility of N5 million which facility was granted and a tripartite legal mortgage was executed and duly registered at the Land’s Registry, Calabar. The said N5 Million was credited into the account agreed by the parties and same was withdrawn but it was never serviced. When the appellant and the 2nd respondent failed to repay the loan facility, the 1st respondent proceeded to exercise her right of sale but the appellant rushed to the trial Court to inter alia pray for the nullification of the entire transaction and the 1st respondent counter-claimed.
This is an appeal against the judgment of the High Court of Cross River State delivered on the 18th day of March, 2013 wherein the learned trial judge dismissed the claimant’s claim as lacking in merit. The appellant who was the claimant at the trial Court claimed against the respondents herein as follows: –
(a) A declaration that the Deed of Legal Mortgage entered into between the 1st defendant and 2nd defendant in respect of the piece of land (including the building) situate at No.12 Abitu Avenue, Calabar whereby the plaintiff suretied was done without the actual disclosure of the viability of the 2nd defendant to the plaintiff but with misrepresentation of facts which constitute fraud to the entire mortgage transaction between the 1st and 2nd defendants.
(b) An Order setting aside the Deed of Legal Mortgage dated 7th April, 2005 between the 1st and 2nd defendants whereby the plaintiff suretied as a 3rd party guarantor and releasing the piece of land (including the building) situate at No.12 Abitu Avenue, Calabar to the plaintiff.
(c) Injunction restraining the 1st defendant from selling, assigning, mortgaging, leasing, alienating or dealing in whatever manner with the piece of land (including the building) situate at No.12 Abitu Avenue, Calabar.
➥ ISSUE(S) & RESOLUTION
[APPEAL DISMISSED, with cost N100,000 in favour of 1st Respondent]
I. Whether failure to hold a pretrial conference affected the jurisdiction of the Court?
RULING: IN RESPONDENT’S FAVOUR.
A. “In the instant case, the failure to make a pre-trial report does not amount to a non-compliance with the process of law or a pre-condition for the exercise of jurisdiction of the trial Court. It was an irregularity that did not affect the merits of the case or occasion a miscarriage of justice and that it is too late in the day for the appellant to now complain about such irregularity. See EGBO V AGBARA (Supra). In SAUDE V ABDULLAHI (1989)4 NWLR (pt 116) 387 at 425, it was held that a breach of a rule of practice can only render a proceeding an irregularity and not a nullity. Thus, such irregular proceeding can only be set aside if the party affected acted timeously and before taking fresh step since discovering the irregularity. Also where as in this case, the non-compliance with the rules of Court is on the part of the Court; the defect is merely administrative and does not render the proceedings consequent thereto a nullity.”
B. “The failure to make a pre-trial report aside from being a mere irregularity, this contention is being raised in this Court for the first time without leave of the Court. Where leave was not obtained nothing new would be heard on appeal. It follows naturally that a party must be consistent, in stating his case in the trial Court and on appeal. He would not be allowed to present a case at trial and present a different case on appeal. The appellant in the instant case would not be allowed to shift ground on appeal as it suits his fancy. Complain about failure to make pre-trial report was neither raised nor canvassed at the trial Court. It is therefore wrong and not worth considering on appeal. See EWUGBA V STATE (2018) 7 NWLR (pt 1618) 262 at 282 and HYPPOLITE V EGHAREVBA (1998)11 NWLR (pt 575) 598.”
II. Whether or not the lower Court was right when it held that there was a valid contract between the appellant and the 1st respondent?
RULING: IN RESPONDENT’S FAVOUR.
A. “From the content of the tripartite Legal Mortgage, Exhibit 6, all the 3 parties, that is, the appellant, the 1st and 2nd respondents had outwardly assented to be legally bound together. They both appended their respective signatures and vide the said agreement, the appellant (Mbosowo Abraham Ekpo was the surety/Mortgagor, 1st respondent (Guaranty Trust Bank Plc) was the lender) mortgagee and the 2nd respondent (Tekel Mobile Communications Ltd) was the borrower. In clause 2 of the said Deed of Legal Mortgage, the appellant had covenanted to demise unto the 1st respondent his property for the unexpired residue of the term of years granted therein, subject to the proviso for redemption.”
B. “There is therefore no dispute as to the existence of contractual relationship between the parties, but the appellant’s only contention is that he was lured into it and had repudiated the agreement in Exhibit 6 through a letter addressed to the 1st respondent, Exhibit 2. In paragraph 11 of the appellant’s written statement on Oath, Exhibit A, he stated that upon suspecting the transaction to be fraudulent, he wrote to the 1st respondent vide a letter of 9/5/2003 dis-associating himself from that transaction. But when cross-examined at page 184 of the record of appeal, appellant as PW1 said:- ‘Yes, after studying Exhibit 1, I made available my title documents for a loan transaction. Yes, it is correct as per paragraphs 7 and 8 of my Exhibit A that I had meetings with the Director of 2nd Defendant. Yes, when 2nd defendant contacted me, the 1st defendant was aware, Yes, I was under pressure by 1st defendant to sign Exhibit 6. The 1st defendant was represented by a lady at that time. There was no gun or other object to pressure me to execute Exhibit 6. The lady branch manager did not threaten to slap me if I did not sign Exhibit 6.’”
C. The appellant having failed to prove both the repudiation and the criminal allegations against the 1st respondent, the learned trial judge was perfectly right when he held at page 207 of the record of appeal thus:- ‘There is no clause in Exhibit 6 that states that the claimant can repudiate Exhibit 6 and the claimant cannot import into Exhibit 6 an extraneous clause through Exhibit 2.’
III. Whether or not the trial Court was right in admitting the 2nd respondent’s statement of account i.e. Exhibit 8 when it was inadmissible in law?
RULING: IN RESPONDENT’S FAVOUR.
A. “It was held in plethora of judicial decisions including the cases I.B.W.A. LTD V IMANO (NIGERIA) LTD (2001) 3 SCNJ 160, F.R.N V FANI-KAYODE (2010) ALL FWLR (pt 534) 181 and P.B. OLATUNDE & CO (NIG) LTD V N.B. N. LTD (1995)3 NWLR (pt 385) 550, that so long as it is in substance in compliance with the provisions of the subsection, the evidence needs not be in precise language of Section 90 (1) (e) of the Evidence Act 2011. In other words, once the evidence adduced before the Court substantially covers the requirements of Subsection 2 (e) of the relevant section of the Evidence Act, the secondary evidence in question will become admissible proof of the existence, condition and contents of the entry in the banker’s book.”
B. “And it is also sufficient to satisfy the requirements of Section 96 (2) (e) if from the totality of the evidence tendered on the matter, necessary and natural inference can be made which would amount to compliance with the section. Although, DW1 did not specifically said he examined the copy with the original entry in the custody and control of the bank; but that was the only natural inference to be derived from his evidence as an assistant manager of the bank. In the circumstance, I cannot but agree with the learned trial judge when he held at pages 188 – 189 of the record of appeal that:- “I am satisfied from a proper construction of the witnesses evidence as per paragraphs 1 – 7, 11, 20 and 21 that proper foundation has been laid for the admission of the document sought to be tendered in evidence to wit: a document evidencing the banking transactions between the parties in their usual and ordinary course of business as banker and customer, as evidence in the claimant’s account with the 1st defendant.””
“In the instant case, the parties to the tripartite agreement, Exhibit 6 are bound by the terms and conditions of the agreement. It was neither repudiated nor vitiated by any undue pressure or influence. Therefore, it is valid and subsisting and this Court cannot import into it terms which the parties themselves did not agree on. In the result, the appeal fails and it is accordingly dismissed. Costs assessed at N100,000:00 are hereby awarded in favour of the 1st respondent and against the appellant.”
➥ MISCELLANEOUS POINTS
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