➥ CASE SUMMARY OF:
B.O. Lewis v. United Bank for Africa Plc. (SC.143/2006, 14 January 2016)
by Branham Chima.
➥ ISSUES RAISED
➥ CASE FACT/HISTORY
By an Amended Statement of Claim dated 4th January 2001, the Respondent as Plaintiff sued the Appellant as Defendant in the Lagos High Court for among other things the sum of N1,349,671,54 being the total outstanding principal and interest in respect of loans granted to the Appellant by the Respondent. The claim is that a loan of N1,550,000.00 was granted to the Appellant, in the course of his employment to purchase a car. The Respondent asserted that monthly deductions were made from the Appellant’s salary to repay the loan and the sum of N1, 116,293.15 was outstanding at the time the Appellant’s employment was terminated. Also that an ordinary/personal loan of N300,000.00 was granted to the Appellant in the course of his employment and monthly deductions were being made from his salary to repay the loan and at the time his employment was terminated, the sum of N233,378.39 was outstanding making the outstanding sums total of N1,349,697.54.
After considering arguments of counsel to the parties, the High Court of Lagos State, Lagos Division (Coram: Oyefesobi J.) ruled that the Appellant’s counter-claim could not be conveniently tried with the substantive claim of the Respondent and struck it out. The learned trial judge then ruled that the whole defence was a sham and entered final judgment in favour of the Respondent. (See pages 37 – 41 of the record). Dissatisfied with the decision of the High Court of Lagos State, the Appellant appealed to the Court of Appeal, Lagos Division. The Court of Appeal in delivering its judgment on 22nd day of June, 2004 allowed the appeal in part and found that except as to the Lower Court’s order striking out the Appellant’s counter-claim the appeal lacked merit and the same was dismissed.
This is an appeal against part of the judgment of the Court of Appeal, Lagos Division delivered on the 22nd of June, 2004 affirming the decision of the High Court of Lagos State entering a summary judgment against the Appellant under Order 11, Rules 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules 1994. Dissatisfied with the decision, the Appellant has through a Notice of Appeal.
➥ ISSUE(S) & RESOLUTION(S)
↪️ I. Whether the Court of Appeal was right to have determined the liability of the Appellant in respect of the car loan within the context of Exhibit B alone when the agreement between the Appellant and the Respondent was reduced to a form of series of documents/correspondence including Exhibits C and D?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THERE IS A CONCURRENT FINDING BY THE TWO COURTS BELOW; THE TERMS OF THE CONTRACT MUST BE RESPECTED
‘The learned trial judge after evaluation of the affidavit and documentary evidence before it stated thus:- “The Defendant was not required under the circumstance to make any repayment on the car. I do not accept this submission this is contrary to agreed upon and in consideration of which agreement the Bank (The Plaintiff) provided the loan. This is contained in Exhibit B which provides “That the bank shall have absolute lien on the vehicle until repayment has been effected….. that in the event of my leaving UBA for any reason before the loan is fully repaid to pay the outstanding balance and for this purpose authorise you any fund (sic) held by the bank for me if there subsequently remain any outstanding balance I will deliver the car to the bank”. The Court of Appeal per Muhammed JCA (as he then was) said: “One cannot agree more. The liability of the Appellant in respect of the car loan must be determined within the context of Exhibit B”. On what the Court of trial based its findings, learned counsel for the Respondent appropriately brought out dearly and that is that Exhibits C and D being correspondences between the parties formed part of the contractual documents with respect to the loan transaction and the terms and conditions in Exhibits C and D and their effect were not in dispute between the parties. These express terms of a contract cannot therefore be varied or modified by anything outside of those terms and in that regard both the car and personal loans having been reduced in writing in the matter for repayment in the circumstance of the discontinued employment of the Appellant cannot be separated or jettisoned on account of the change occasioned by the termination of the employment. Again to be said is that there is nothing in the language of the contractual agreement that removes the appellant from liability of repayment of the loans, the fact of the termination of his service by the Respondent notwithstanding. That is to say that the terms and conditions of the contract in respect of its repayment still remain as were stated in Exhibit B and the attempt by the Appellant to unilaterally opt out of that contract he voluntarily entered into would remain for all time an attempt that cannot materialise in a change of the contractual terms or to relieve him of the obligation to pay back what is due in the loan agreement. That is the fabric on which the two Courts below made their concurrent findings and nothing is afoot to persuade this Court into a different reasoning since credible evidence on record support the findings and no inadmissible evidence brought in and the evaluation of the evidence and the probative value ascribed appropriately by those two Lower Courts. Also there being no miscarriage of justice, the natural consequence is for me to go along. I place reliance on Ogun v Akinyelu (2004) 18 NWLR (Pt. 905) 362; Fashanu v Adekasa (1974) 6 SC 83; Otun v Otun (2004) 14 NWLR (Pt. 893) 381’]
↪️ II. Whether in the circumstances of this case, the Court of Appeal was right in holding that the Appellant’s effort as contained in the Statement of Defence and Affidavit showing cause was a sham and as such he was not entitled to the leave to defend the action?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE DEFENCE OF THE APPELLANT DOES NOT HELP HIS SITUATION
‘A refresher to the situation is that the Respondent had fully performed his obligation under the contract for the personal loan by making available the said sums and the next step is the obligation for repayment by the Appellant within the conditions of the loan agreement and this obligation does not cease because his employment has ended. This is because mere hardship, inconvenience or other unexpected turn of events which have created difficulties though not contemplated cannot constitute frustration to release Appellant from that obligation. A situation which not even the death of the Appellant, grave as that might be would not alter the course of events of the repayment as his estate would bear the liability. I anchor on the case of Davis Contractors Ltd v Fareham U.D.C. (1956) AC 696.’
‘In this I agree with learned counsel for the Respondent that the factual situation representing the Appellant’s defence does not constitute a good defence on the merit to the claim of the respondent as the appellant did not dispute the fact that he took the loans and so had the obligation to repay or show cause why the loan cannot be repaid. It can be said that the trial judge having considered the Appellant’s Affidavit showing cause and the accompanying exhibits was on firm ground that they were bereft of material evidence on those two prongs. In this, the Court of Appeal agreed that the summary judgment was the right way to go and there was no need beating about the bush. See Afribank v Alade (2000) 13 NWLR (Pt. 685) 591.’]
‘In conclusion therefore, all the issues resolved in favour of the Respondent and clearly the appeal lacking in merit, I hereby dismiss the appeal as I see no reason to upset the concurrent findings of the two Courts Below. I uphold the judgment of the Court of Appeal in its affirmation of the judgment of the trial High Court, I award N100,000.00 costs to the Respondent to be paid by the Appellant.’
➥ FURTHER DICTA:
⦿ SUMMARY JUDGEMENT IS FOR DISPOSAL OF UNCONTESTED CLAIMS
In the instant case after the exchange of pleadings the respondent (as plaintiff at the trial court) brought an application for summary judgment under Order 11 Rules 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules 1994. The summary judgment procedure is for disposing of cases which are virtually uncontested with dispatch. It applies to cases where there can be no reasonable doubt that the plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purposes of delay. It is for the plain and straight forward, not for the devious and crafty. See U.B.A. Plc Vs Jargaba (2007) 11 NWLR (Pt. 1045) 247 @ 270 F-H per I.T. Muhammad, JSC; Sochipo Vs Leminkainen OY (1986) 1 NWLR (Pt. 15) 230: Adebisr Macqreoor Ass. Ltd. Vs N.M.B. Ltd (1996) 2 NWLR (Pt. 431) 378: (1996) 2 SCNJ 72 @ 81. — K.M.O. Kekere-Ekun JSC.
⦿ AFFIDAVIT SHOWING CAUSE TO DEFEND MUST DISCLOSE A DEFENCE
Furthermore, an affidavit showing cause why a defendant should be granted leave to defend an action must disclose a defence on the merit setting out the details and particulars of the defence. The popular expression is that the affidavit must “condescend upon particulars.” The affidavit showing cause must disclose facts which will at least throw some doubt on the plaintiff’s case. See U.B.A. Plc Vs Jargaba (Supra); Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283: Nishizawa Ltd Vs Jethwani (1984) 12 SC 234. — K.M.O. Kekere-Ekun JSC.
⦿ WHEN TERMS OF CONTRACT ARE CLEAR, INTERPRETATION IS NEGLIGIBLE
In the construction of a contract, the meaning to be placed on it is that which is the plain, clear and obvious result of the terms used. A contract or document is to be construed in its ordinary meaning, When the language of a contract is not only plain but admits of one meaning, the task of interpretation is negligible. See: Union Bank of Nig. Ltd & Anr Vs Nwaokolo (1995) 6 NWLR (Pt. 400) 127: Aouad & Anor Vs Kessrawani (1956) 1 FSC 35: Nwanowu Vs Nzekwu & Anor (19571 3 FSC 36: Orient Bank (Nig) Plc Vs Bilante Int. Ltd (19971 8 NWLR (Pt. 515) 37 @ 78 B-D. — K.M.O. Kekere-Ekun JSC.
⦿ EXTRINSIC EVIDENCE CANNOT VARY WRITTEN TERMS
The general rule is that where the parties have embodied the terms of their agreement or contract in a written document as it was done in this case, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument: See Mrs. O, D. Layode v Panalpina World Transport NY Ltd (1996) 6 NWLR (pt 456) 544, Glaloye v Balogun (1990) 5 NWLR (pt 148), Union Bank of Nigeria Ltd v Ozigi (1994) 3 NWLR (pt 333) 385. — J.I. Okoro JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Mary Ukaego Peter-Odili. JSC
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ UNLESS CLEAR ERROR IS SHOWN, CONCURRENT FINDING WILL NOT BE DISTURBED
The attitude of the Supreme Court to concurrent findings of fact has been reiterated in a plethora of authorities. In Ogundiyan Vs The State (1991) 3 NWLR Pt. 1811 519 @ 528-529 H-A this court held per Obaseki, JSC: “without any clear evidence of errors in law or fact leading to or occasioning miscarriage of justice, this court will not interfere with the concurrent findings. It is settled law that there must be clear proof of error either of law or fact on the record which has occasioned miscarriage of justice before the Supreme Court can upset or reverse concurrent findings of fact,” Per Nnaemaka-Agu, JSC in Ogoala Vs The State (1991) 2 NWLR (Pt. 175) 509 @: It is settled that where there is sufficient evidence to support the findings of fact by two lower courts, such findings should not be disturbed unless there is a substantial error apparent on the record: that is, the findings have been shown to be perverse, or some miscarriage of justice or some material violation of some principle of law or procedure is shown.”
➥ REFERENCED (OTHERS)