Ralph Oluwole Osayameh V. Nigeria Deposit Insurance Corporation & Anor (2009)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
This is an appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja in suit No FCT/HC/C/99/2001 RALPH OLUWOLE OSAYAMEH V. (1) NIGERIA DEPOSIT INSURANCE CORPORATION (RECEIVER/LIQUIDATOR OF COMMERCE BANK PLC
(2) NATIONAL OIL AND CHEMICAL MARKETING PLC delivered on the 28th day of June, 2005.
The Appellant as Plaintiff in the lower court claimed against the Defendants now Respondents as follows:-
“(i) A declaration that the tripartite debt-swap contract concluded between the Plaintiff and 1st and 2nd Defendant between the months of March and May 1996 ought to be set aside as having been procured by the undue influence and negligence and /or fraud of the Defendants on the Plaintiff.
(ii) A declaration that the consideration for the transfer of the plaintiff’s property known as Plot 133 Haile Sellassie Street, Asokoro District Abuja to the Defendant having wholly failed, the plaintiff becomes and he is entitled to repossess same.
(iii) An order that the 2nd Defendant do re-convey the property to the plaintiff and take all necessary steps vesting same in the plaintiff.
(iv) An order that the 2nd Defendant pays to the plaintiff the sum of N2 Million per annum from the 1st day of December, 1991 until it delivers up to the Plaintiff possession of the property known as Plot 133 Haile Sellasie Street, Asokoro District Abuja.”
At the conclusion of hearing, the lower court dismissed the plaintiff’s claim in its entirety.
The appellant being dissatisfied with the said Judgment of the lower court now appealed to this court.
The learned counsel for the Appellant formulated three issues for determination as follows:-
(i) Whether the trial court’s decision that ”Exhibits. “P6″ was only an attempt to renege on the tripartite agreement earlier entered into by plaintiff and other parties in this case” was proper in law?
(ii) Whether the trial court’s finding that the 1st Respondent had instructed its solicitors to discontinue the suit it had instituted against the Appellant before the Failed Bank Tribunal and thus abandoned its bid to scuttle the tripartite agreement was intuitive speculative and imaginary?
(iii) Whether the trial court’s decision that the Appellant’s rights under the tripartite contract had not been tampered with or withdrawn and that there has “Therefore been a valid contractual arrangement complete with all the essential ingredients of a contract including consideration was proper in the light of Exhibits P6-P9 the admission of the 1st Respondent in paragraphs 2, 3, and 9 of its 1st Defendant’s statement of Defence and the testimony of DW1 on page 70, of the record of proceedings.
The learned counsel for the 1st Respondent formulated two issues for determination as follows:-
“(1) Whether the learned Trial Judge was right when he held that the tripartite agreement was valid and subsisting and not vitiated by reason of undue influence and/or fraud. (Grounds 1, 2, 4 and 6 of the Appellant’s Amended Notice and Grounds of Appeal)
(2) Whether Exhibit “P6″ amounted to a repudiation of the tripartite agreement and consequently vitiated the consideration for the transfer of the Appellant’s property to the 2nd Respondent. (Grounds 3 and 5 of the Appellant have amended Notice and Grounds of Appeal.”)
The Learned Counsel for the 2nd Respondent did not formulate any issue for determination but adopted the Appellant’s Issues for determination.
At the hearing, the learned counsel for the Appellant adopted and relied upon the Appellant’s brief of argument and appellant’s reply brief of argument in urging the court to allow the appeal.
The Learned Counsel for the 1st and 2nd Respondents adopted and relied on their respective briefs of argument in urging this court to dismiss the appeal.
The Issues formulated by Learned Counsel for the Appellant focused more on the areas in controversy between the parties than that of the 1st Respondent, I therefore find the issues formulated by the learned counsel for the appellant relevant and apt for the determination of this appeal.
ISSUES 1 and 2 (Taken together)
Whether the trial court’s decision that Exhibit “P6” was only an attempt to renege on the tripartite agreement earlier entered into by plaintiff and other parties in this case was proper in law?
Whether the trial court’s finding that the 1st Respondent had instructed its solicitors to discontinue the suit it had instituted against the Appellant before the Failed Bank Tribunal and thus abandoned it bid to scuttle the tripartite agreement was intuitive, speculative and imaginary?
The Learned Counsel for the Appellant referred to paragraph 15(a) of his Amended Statement of Claim (Pages 9-10 of the record of proceedings) where the appellant averred as follows:-
“(15) The Plaintiff has since discovered and the fact is that each of the said representations was untrue in that:
(a) By letter dated 3rd of November, 1997 and copied to the plaintiff, the 1st Defendant unequivocally rescinded the said debt-swap contract. The plaintiff shall rely on the said letter of 3rd November, 1997 in proof of the averment at the trial of this action.”
In response to the fore-going the 1st Respondent in paragraph 9(a) of the 1st Defendant’s Statement of Defence (Page 2c of the Record of proceedings averred as follows:-
“The averments in paragraph 15(a) & (b) of the statement of claim are admitted in part only to the extent as follows:-
(a) That when the bank became distressed and its management taken over by the 1st Defendant, the management objected to the said transaction and directed that the credit entries already made into Plaintiffs account be reversed.
He went further that the learned trial Judge found on page 90 of the record as follows:-
“It is true that the management of Commerce Bank wrote Exhibit “P6″ to the 2nd Defendant.
The learned trial Judge went on to hold thus on page 91 of the record of Proceedings:
”In my view the act of the Management of Commerce Bank in writing Exhibit “P6H was only an attempt to renege on the tripartite agreement earlier entered into by plaintiff and other parties in this case.”
Learned counsel for the Appellant submitted that Exhibit “P6” was an unequivocal repudiation of the agreement and that it was more than mere “attempt” as held by the lower court. He stated further that Exhibits “P7” to “P9” constituted evidence of additional steps taken by the 1st Respondent in furtherance of the repudiation of the agreement.
He relied on the following cases:- Benue State Commissioner for Works & another v. Devcon Ltd & another (1988) NSCC Vol.19 Part 2 Page 157. Ratios 2 & 4, Messrs Westac Nigeria Limited v. Sokota State Government & another (2000) 4NWLR Part 703 Page 304. Ratio 4 & 5, J.B. Ogbechie & others v. Gabriel Onochie & others (19860 2 NWLR Part 23, Page 484. Ratio 10.
He went further in his submission that the appellant is entitled to restitution because he has performed his own Side of the agreement prior to the repudiation.
He relied upon the case of:- Dantata v. Mohammed {2000} 7 NWLR Part 664 Page 176 Ratio 18
On issue 2 Learned Counsel for the Appellant referred to Paragraph 15(c) of the Amended Statement of Claim on page 10 of the Record of Proceedings.
In proof of facts asserted in paragraph 15(c) the appellant tendered in evidence Exhibit “P9”,
In response to the averment in paragraph 15 (c) of the amended statement of claim, the appellant referred to paragraph 9(d) and (f) of the 1st Defendant’s statement of defence on pages 2c and 2d of the record of proceedings.
He also referred to the testimony of DW1 on pages 69 and 70 of the Record of Proceedings which affirmed the facts stated in paragraph 9 a-f of the 1st Defendant’s statement of defence.
He went further that on the issue of subsistence of the suit before the Failed Bank Tribunal Abuja the testimony of DW1 was that it “Advised its solicitors Messrs EI-Khahl & Co to discontinue action on the said suit it had instituted against the plaintiff. He went further that there was no evidence that the advice was complied with.
It was submitted on behalf of the appellant that by virtue of Section 14 of Decree 18 of 1994 and Form H in the appendix to the Rules of Procedure for the recovery of debt by the Failed Bank Tribunal, the withdrawal of an application for debt recovery brought pursuant to Section 11 (1) of the Decree was a fact only provable by documentary evidence. He went further that by virtue of the said section 14 of Decree 18 of 1994, an action for recovery of debt could only be withdrawn with the leave of the Tribunal and such leave could only be obtained upon filing of a motion in the prescribed Form H.
He stated that the fact that the 1st Respondent did not furnish the trial court with such proof meant it failed to prove that the suit before the Failed Bank Tribunal was indeed withdrawn.
He relied on the following cases:-
First African Trust Bank Ltd v. Partnership Investment Company Limited (2003) 18 NWLR Part 851 Page 33 Ratio 12 Alhaji Isah T. Sokwo v. Joseph Daku Koongbo & others (2003) 2 NWLR Part 803 Page 111 Ratio 5
The learned Counsel for the Appellant referred to page 91 of the Record of Proceedings where the Learned trial Judge stated as follows:-
”In my view, the act of the Management of Commerce Bank in writing Exhibit “P6″ was only an attempt to renege on the tripartite agreement earlier entered into by plaintiff and other parties in this case and when the situation was made clearer to the management it instructed their two legal firms to discontinue the actions they had already filed before the Failed Bank Tribunal, Abuja. In other words, the management abandoned its bid to scuffle the tripartite agreement.”
It was submitted on behalf of the appellant that the learned trial Judge’s finding above is certainly not founded on any evidence or facts placed before him. He relied on the following cases:-
Francis Nyiam Disong v. Okokon Ekoenyong (2003) 5 NWLR Part 812 Page 156 Ratios 3 &.4, Alhajj Isah T. Sokwo v. Joseph Daku Kpongbo & others (Supra) Ratio 10.
Learned Counsel for the Appellant submitted that the findings of the learned trial Judge referred to above is intuitive, speculative and imaginary and is not predicated on any evidence before the court.
He finally urged that the suit No FBT/ABJ/T.1/CV1004/98 filed by the 1st Respondent before the Abuja Zone of the Failed Bank Tribunal against the appellant still subsists and that it constitutes a fatal infringement on the rights of the Appellant under the tripartite agreement concluded between the parties herein, entitling the said Appellant to restutionary remedies.
The Learned Counsel for the Respondent in his own submission stated that Exhibit “P6” did not repudiate the tripartite agreement, therefore if the tripartite agreement is valid, then the consideration is equally valid.
He referred to the averment in paragraph 18 of the appellant’s statement of claim that the consideration the appellant provided for the tripartite agreement failed as a result of Exhibit “P6” and that he is entitled to repossess his property.
He also referred to Exhibits “P7” and “P8” which were tendered in evidence by the Appellant i.e. letters from NDIC to its solicitors instructing then to recover the said debt and copies of the Court Process.
He also referred to the testimony of the respondents at the trial court on pages 70 and 91 of the Record of Proceedings which was to the effect that the action instituted by the new management of the bank against the Appellant for recovery of the debt was in error and the said action was immediately withdrawn as soon as the new management’s attention was drawn to the debt swap agreement.
The Learned Counsel for the 1st Respondent relied on the case of:-
Odofin & others v. Mogagi & others (1978) NSCC at Page 275. And submitted that putting the totality of the evidence adduced by both parties on an imaginary scale that the evidence of the 1st Respondent was far more credible than that of the Appellant.
He submitted that the Appellant failed to prove that consideration for the transfer of his property has failed as he did not lead evidence to prove same.
It was submitted on behalf of the 2nd Respondent that it is not enough to claim that the Appellant was taken before a Failed Bank Tribunal without more, was a renege on the tripartite agreement reached among the parties.
The Learned Counsel for the 2nd Respondent submitted further that the appellant should show by credible evidence that he was taken to Failed Bank Tribunal. He relied on the following cases:-
Dr Oliver Onvali v. Chief Nwankwo Okpala (2001) 1 NWLR Part 694 Page 282 at 291 Ratio 22
Micheal Ama Nnachi v. Hon Irem O. Ibom (2004) 16 NWLR Part 900 Page 614 at 626 Particularly 636 Paragraph E-F
Achiakpa v. Nduka (2001) FWLR Part 71 at 1804 at 1828 Paragraph O-G
Isah Onu & others v. Ibrahim Idu and 5 others (200) 12 NWLR Part 995 Page 657 at 633 Ratio 7-
He referred to the evidence of DW1 at Page 70 of the record which is to the effect that:-
“——–in September 1996, Commerce Bank Management was taken over by CBN/NDIC and going through the books, The debt -swap arrangement was discovered and the new management frowned at it and decided to rescind the arrangement and appointed solicitors to pursue the debit from the plaintiff. Along the line the attention of NDIC was drawn to the earlier debt swap arrangement by the solicitor to the plaintiff and after looking at the arrangement the new management that took over Commerce Bank decided to allow the debt swap arrangement to stay and advised its solicitors that were appointed to recover the money from the plaintiff to withdraw the suit.”
The Learned Counsel for the 2nd Respondent submitted that it is erroneous to say that the finding of the fact by the learned trial Judge that Exhibit “P6” was an attempt to renege on the tripartite agreement was not supported by evidence.
He submitted further that even if the discontinuance of the action at the Failed Bank Tribunal was not expressly made by means of a motion, the fact that the action was not pursued to a logical conclusion, to wit recovery of the debt owed by the Appellant suffices a discontinuance of action.
The Learned Counsel for the Appellant in the Appellant’s Reply brief responded on this issue as far as the argument of the 1st Respondent is concerned that the language employed in Exhibit “P6” is clear and unambiguous. He submitted that the only inference to be drawn from paragraph 5 in Exhibit “P6” is that there was a repudiation of the tripartite debt swap agreement and that the repudiation had a note of conclusion or finality to it.
It was also submitted by the appellant that there was absolutely no evidence before the trial court that the 1st Respondent did in fact take steps to revalidate the tripartite agreement and even if there was, it would not have been open to the 1st Respondent to approbate and reprobate by unilaterally resiling from its decision to repudiate the agreement when it suited it to so do. He relied on the following cases:-
A.G. Lagos State v. Purification Techniques Nig Ltd (2003) 16 NWLR Part 945 Page 1 Ratio 11.
Hyun Sung Hvdraulic Machinery Company Ltd v. Hasan Jaffar (2004) 15 NWLR Part 996 Page 343 Ratio 5
He also stated that Exhibits “P7” to “P9” tendered in evidence by the Appellant constituted proof of the fact that the consideration accruing to the Appellant under the tripartite agreement (which was immunity to a demand for and/or prosecution in respect of the N33 Million of his debt outlay to the 1st Respondent) was denied him by the 1st Respondent.
He relied on the case of:-
Benedict Udeorah & others v. Okwundu Nwakoriobi & other (2003) 14 NWLR Part 811 Page 643 Ratio 11.
The undisputed background facts of the case before the lower court were that the Plaintiff/Appellant was the Managing Director of the defunct Commerce Bank Plc. The appellant by his own pleading and evidence was indebted to the distressed Bank i.e. Commerce Bank in the sum of N39 million which accrued from personal and company related loans granted to himself without collaterals. While the Bank was distressed, the Central Bank of Nigeria together with the 1st Respondent discovered the huge debt. By a letter dated 12-3-06 the Central Bank of Nigeria wrote a letter to the Appellant demanding urgent liquidation of the huge debt or face prosecution under Decree No 18 of 1994 before the Failed Bank Tribunal.
The Defunct Commerce Bank was also at the same time indebted to the 2nd Respondent (National Oil and Chemical Marketing Plc) whose N40 Million deposit was trapped inside the defunct bank. The 1st Respondent as the liquidator of the Bank Plc assumed control of its affairs.
In order to avoid prosecution the Appellant together with 1st and 2nd Respondent arrived at an agreement which gave rise to the debt swap in the form of a Tripartite Agreement.
By the Tripartite agreement, the property of the Appellant known as plot 133 Haile Sellassie Street, Asokoro Abuja was assigned to the 2nd Respondent for the sum of N33 Million in order to reduce the liability of Commerce Bank to the 2nd Respondent in that amount and consequently, appellant’s debt of about N39 Million was extinguished. Based on the agreement between the parties, the said property was valued and documents were executed and exchanged.
It was submitted on behalf of the Appellant that the Learned Trial Judge’s description of Exhibit “P6” as “only an attempt to renege on the tripartite agreement” lacks any legs to stand on.
The Respondent on the other hand in its evidence before the lower court stated that the action which was Instituted by the new Management of the bank against the appellant for recovery of debt was in error and that the said action was immediately withdrawn as soon as the new Management’s attention was drawn to the debt swap agreement.
It was true that a letter dated 3/11/97 i.e. Exhibit “P6” was written to rescind the debt-swap contract, but there was evidence before the lower court that it was done in error and the entries earlier directed to be reversed was re entered into the plaintiff’s account.
There was also the evidence that as a result of the consideration the appellant was relieved of his debt. It could therefore not be said that consideration failed due to Exhibit “P6”.
In Dantata v. Mohammed (Supra) Page 185 Ratio 19 it was held that:-
“A complete failure of consideration occurs where one of the contracting parties fails to receive the benefit of valuable consideration which springs from the root and is the essence of the contract. There was evidence before the lower court also that the Appellant benefited from the 2nd Respondent’s money which defrayed his indebtedness to the defunct Commerce Bank.
In Adetuyi V. Agbejo (1997) 1 NWLR Part 484 Page 710 at Paragraph 4, the court held that:-
“It is normally despicable for a person who has benefited from an agreement to turn around to say that the agreement is null and Void.”
Because of an error which was quickly corrected as in this case, could it be said that Exhibit “P6” amounted to an absolute repudiation of the contract between the Appellant and the 1st and 2nd Respondents?
I do not think so because unaccepted repudiation of a contract is of no value to anybody, it takes two to end a contract and this is by repudiation on one side and acceptance of the repudiation on the other hand.
See -NEPA v. Isieveore (1997) 7 NWLR Part 511 Page 135 at 160 Paragraphs A-B.
It was contended on behalf of the 1st Respondent that the Appellant failed to lead any credible evidence to show that the consideration under the tripartite agreement failed and that the Appellant was consequently arraigned before a court.
It is my humble view that if the 1st Respondent really intended to repudiate the contract it would not have instruct its solicitors to discontinue the case at the Failed Bank Tribunal after its attention had been drawn to the fact that the contract had been concluded and was valid and subsisting.
In cases of this nature the court will always look at the entire case as a whole before drawing any conclusion from a particular action of a party. It is not in the interest of Justice to make a mountain out of a molehill, because the days of justice by technicality are over in Nigeria and the trend these days is to strive to do substantial justice on the merits of each case.
In view of the foregoing, it is my view that the trial court was right when it held that:-
“Exhibit “P6″ was only an attempt to renege on the tripartite agreement earlier entered into by the Plaintiff and other parties in this case.”
ISSUES 1 and 2 are therefore resolved in favour of the 1st and 2nd Respondents and against the Appellant.
ISSUE 3
Whether the trial court’s decision that the Appellant’s contract had not been tampered with or withdrawn and that there had “Therefore been a valid contractual arrangement complete with all the essential ingredients of a contract including consideration” was proper in the light of Exhibits “P6” to “P9”, the admissions of the 1st Respondent in paragraph 2, 3, and 9 of its 1st Defendants statement of defence and the testimony of DW1 on page 70 line 20, of the Record of Proceedings.
The Learned Counsel for the Appellant referred to Paragraph 7 of the amended statement of claim, (see Page 8 of the Record of Proceedings) Paragraph 15(a) to (c) of the Amended Statement of Claim (See Pages 9 to 10 of the Record of Proceedings) and Paragraph 18 of the Amended Statement of Claim (See Page 11 of the Record of Proceedings).
In response to the foregoing averments of the appellants, the 1st Respondent relied on Paragraphs 2, 3, and 9 of the 1st Defendant’s Statement of Defence (See pages 2A to 2D respectively of the Record of Proceedings).
He also referred to the evidence of Mr. Alfred Oluseyi Akwe on page 70 line 20 of the record of proceedings.
The Learned Counsel for the Appellant submitted that the 1st Respondent in paragraphs 9(a), (b) and (c) of the 1st Defendant Statement of Defence (See Pages 2c and 2d of the Record of Proceedings) and Exhibits “P6” to “P9” jointly constitute irrefutable proof of the fact that the 1st Respondent did indeed deprive the Appellant of the enjoyment of the benefits accruable to him under the tripartite agreement.
He finally submitted that the decision of the learned trial Judge are clearly at variance with the evidence furnished the court.
In his reply brief of argument the Appellant submitted that issue No 1 formulated by the 1st Respondent does not arise from the Ground of Appeal filed in this appeal and that it ought to be discountenanced.
It was further submitted on behalf of the Appellants that nowhere in the Grounds of Appeal did the issue of fraud or undue influence arise.
A careful examination of Issue No 1 formulated by counsel for the 1st Respondent would reveal that the said issue does not arise from the Appellant’s Grounds of Appeal.
It is settled that a Respondent cannot formulate an issue or issues for determination outside Grounds of Appeal filed by the Appellant. A Respondent can only either adopt the issue as formulated by the Appellant based on his Grounds of Appeal before the court or at most re-cast the issue by giving them a slant favourable to the Respondent’s point of view but without departing from the complaints raised by the Grounds of Appeal. In Madam Olufunso Okelola v. Miss Adebisi Boyle (1998) 2 NWLR Pt 539 Page 546. Ogundare JSC (of blessed memory) held among others that-
“This Court has laid down in a number of cases that an appeal will only be determined on issues arising out of the grounds of appeal before the court and no arguments on any issue not predicated on such grounds of appeal will be countenanced.”See also – Igbinoba v. Igbinoba & others (2003) 2 NWLR Part 806 Page 39 ratio B.
In view of the foregoing since Issue No 1 formulated in the 1st Respondent’s Brief of Argument does not flow from the Grounds of Appeal filed by the Appellant, the said issue and all arguments based on it are hereby discountenanced.
The Learned Counsel for the 2nd Respondent submitted that the contractual arrangement which led to the tripartite agreement was never and has never been rescinded, reneged or breached by any figment of imagination.
He went further in his submission that the Appellant did enjoy some benefits under the contract and that it would be unconscionable to assume that the appellant was denied consideration for the release of the Appellant’s property at Plot 133 Haile Sellassie Street Asokoro Abuja. He therefore urged that the appeal should be dismissed.
I have carefully considered the submissions of learned counsel for the parties and I shall adopt my reasoning and conclusions on issues 1 & 2 above for Issue 3 now under consideration.
I will only add that even though facts admitted need not be proved but where facts are not totally admitted, the court will have to look at the surrounding situation before taking a decision one way or the other.
In this appeal, the appellant’s quarrel is with the admissions made in response to the averments of the Appellant in the Amended Statement of Claim.
The 1st Respondent in paragraphs 2, 3, and 9 of its 1st Defendant’s Statement of Defence (Page 2A-2D respectively of the Record of Proceedings) averred as follows:-
“(2) The averment in paragraph 5 of the statement of claims admitted only to the extent that the Plaintiff negotiated and concluded a debt-swap arrangement with the 2nd Defendant and Commerce Bank PLC (In Liquidation) hereinafter called “The Bank.”
(3) That by the said arrangement in 2 above, the plaintiff’s personal/company related debt to the Bank estimated at over (N39,000,000.00) Thirty-Nine Million Naira was swapped with (N33,000,000.00) Forty-Three Million Naira from the 2nd Defendant’s Deposit with the Bank which stood at about (N40,000,000.00) Forty Million Naira in consideration for the plaintiff’s property known as Plot 133 Haile 5ellassie Street, Asokoro District Abuja (hereinafter called “The Property”)
(9) The averment in paragraph 15 (a) & (b) of the Statement of Claim is admitted in part only to the extent as follows:-
(a) That when the bank became distressed and its management taken over by the 1st Defendant, the management objected to the said transaction, and directed that the credit entries already made into the plaintiff’s accounts be reversed.
(b) That further to the directive in (a) above, the 1st Defendant instructed two solicitors including Messrs EI-Khahl & Co based in Abuja to recover the plaintiff’s debt to the bank.
(c) —————–
(d) —————–
(e) That when it was conveyed to the management of the 1st Defendant that the 2nd Defendant had already perfected its title to the property, it directed that the entries earlier directed to be reversed be re entered into the plaintiffs account with the bank to set-off his indebtedness to the bank.
(f) That the 1st Defendant consequently advised its solicitors Messrs EI-Khahl & Co to discontinue action on the said suit it had instituted against the plaintiff,”
At the hearing before the lower court DW1 Mr. Alfred Oluseyi Akwe on page 70 of the record of proceedings stated as follows:-
“Sometimes in September, 1996 Commerce Bank Management was taken over by CBN/NDIC and going through the books the debt-swap arrangement was discovered and the new management frowned at it and decided to rescind the arrangement and appointed solicitors to pursue the debt from the plaintiff.
Along the line the attention of NDIC was drawn to the earlier debt swap arrangement by the solicitors to the plaintiff and after looking at the arrangement the new management that look over Commerce Bank decided to allow the debt swap arrangement to stay and advised its solicitors that were appointed to recover the money from the plaintiff to withdraw the suit.
It is trite that admissions are no estoppels and are not conclusive against a party against whom they are tendered. The party has the right to explain the circumstance and show that the admissions were due to misconception or ignorance of the real facts or other circumstances which sufficiently explain them. See – Nigerian Bank for Commerce and Industry v. Integrated Gas Nigeria Ltd & 1 other {2005} 9 NRN Page 1 Ratio 8 Page 13
In the instant case even though when the Management of Commerce Bank was taken over by CBN/NDIC it discovered the debt swap arrangement, and initially decided to rescind the arrangement but when the attention of the management was drawn to the fact that the 2nd defendant had perfected its title to the property, then debt-swap arrangement was allowed to stay by the said new management of the Bank.
Therefore before the lower court arrived at the conclusion that Exhibit “P6” was a mere letter of an attempt to renege on the tripartite agreement, it had looked at the circumstances surrounding the said admission made on behalf of the 1st Respondent.
The appellant was indebted to the bank in the sum of N39 Million which was to be reduced by N33 Million being the bargain struck as the purchase price for the Appellant’s property at plot 133 Haile Sellasie Street Asokoro District, Abuja.
In my humble view, if the 1st Respondent really intended to repudiate the contract, it would not have instructed its solicitors to discontinue the case against the Appellant at the Failed Bank Tribunal Abuja after its attention had been drawn to the fact that the contract between the parties had been concluded and was valid and subsisting.
The learned trial Judge was therefore right when he held as follows:-
“There has therefore been a valid contractual arrangement complete with all the essential ingredients of a contract including consideration which culminated in the transfer of ownership of the plaintiff’s property to the 2nd Defendant.
——————–
——————–
——————–
I find that such consideration has not been withdrawn and tampered with.”
In the circumstance this issue is therefore resolved in favour of the Respondents and against the Appellant.
In the final analysis, it is my view that this appeal is unmeritorious, it fails and it is accordingly dismissed.
In view of the circumstances surrounding the case, I will not make any order as to costs.
Other Citations: (2009)LCN/3243(CA)
