B. O. Lewis V United Bank For Africa Plc (2016)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
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 filed on the 21st of September, 2004 appealed to this Court.
FACTS
By an Amended Statement of Claim dated 4th January, 2001, the Respondent as Plaintiff sued the Appellant as Defendant in the Lagos 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
1
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.
The Appellant filed a Statement of Defence and Counter-Claim (See pages 9 – 11 of the record) and the Respondent filed a Defence to counter claim (See pages 12 – 14 of the record). The respondent then filed a summons for judgment under Order 11, Rules 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules 1994, for summary judgment. The terms and conditions of the purported loans are contained in Exhibits B, C, D, E1, E2 and E3 attached to the Respondent’s application.
The Appellant then filed an Affidavit Showing Cause. In the affidavit the appellant raised, among other facts that the car was purchased under a transportation scheme for officers in his cadre and that neither he nor any beneficiary under the scheme was required to make any monetary payments to the Respondent for cars obtained under the transportation
2
scheme and that no deductions were being made from the Appellant’s salary to repay the purported car loan except the sum of N4,363.25 representing the extra amount paid to him over and above his entitlements under the scheme. He tendered Exhibit AA3 his monthly slip to show that no money was being deducted from his salary as alleged in respect of the car loan.
He stated that by agreement, the Respondent had an absolute lien on the car and the respondent did not exercise its absolute lien when his appointment was determined.
With respect to the ordinary/personal loan, he stated that by agreement, the Respondent was deducting monthly payments from his salary but that when the Respondent terminated his employment, the payment of the loan from his salary became impossible of performance thereby frustrating the agreement and discharging him there from. The Appellant has not secured any other employment since leaving the services of the Respondent and the Hyundai Sonata (2.0 litres) car is still in his possession.
The Appellant also claimed damages for wrongful termination because the Respondent terminated his employment without giving him the required
3
notice in breach of the terms and conditions of his employment.
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 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 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, Aggrieved by the decision, the Appellant has come before the Supreme Court to ventilate his grievance.
Learned counsel for the Appellant on the 20th day of October, 2015 adopted the Appellant’s Brief settled by Ayodele Akintunde Esq filed on 31st day of January, 2007 and deemed filed on the 2nd day of May, 2007.
4
Also a reply Brief filed on 1/4/10. In Appellant’s Brief he distilled four issues for determination, which are as follows:-
1) Whether the Court of Appeal was right to have determined the liability of the Appellant in respect of the car loan within the con of Exhibit B alone when the agreement between the Appellant and Respondent was reduced to a form of series of documents/correspondence including Exhibits C and D.
2) If the Court of Appeal was right to have determined the liability of the Appellant in respect of the car loan within the con of Exhibit B alone, did the Court of Appeal properly apply the terms and conditions of Exhibit B in determining the liability of the Appellant
3) Whether the termination of the Appellant’s employment made it impracticable and impossible to perform the agreements governing the personal loans i.e Exhibits E1, E2 and E3 since the source of repayment by the contract, which was the Appellant’s salary no longer existed
4) 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
5
cause was a sham and as such he was not entitled to leave to defend the action.
Learned counsel for the Respondent adopted its Brief of Argument settled by Fred Onuobia, filed on 24th day of July, 2007 and deemed filed on the 9th day of July, 2008.
Respondent’s counsel adopted the issues as crafted by the Appellant except for Issue No. 2 which he left off.
I see better to utilise the three issues accepted by the Respondent. However, Issue 2 stemming from outside the grounds of appeal is incompetent, also being a fresh issue introduced by the Appellant without leave is hereby discountenanced as of no purport.
Therefore, I shall restructure the valid issues now as 1, 2.
ISSUE NO. 1
Whether the Court of Appeal was right to have determined the liability of the Appellant in respect of the car loan within the con 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
For the Appellant was submitted that the liability of the Appellant in respect of the car loan could not have been determined within the con of Exhibit B alone because the complete
6
agreement between the Appellant and the Respondent is embodied in a series of documents/correspondence namely: Exhibits B, C and D and the Court of Appeal should have seriously examined each and every one of the documents until was able to see through the terms and conditions of the car loan agreement between the Appellant and the Respondent and not just stop at Exhibit B.
That where documents form part of a long drawn transaction, they should be read and interpreted together, not isolation but in the con of the totality of the transaction in order to fully appreciate their legal support and find out the real intention of the parties. He cited Shell Petroleum Development Company v. Jammal Engineering (Nig.) Ltd (1974) 4 SC 33 at 72; Ejuetami v Olaiya (2001) 18 NWLR (Pt.746) 572; Nneji v Nachem Con. (Nig.) Ltd (2006) 12 NWLR (Pt.994) at 297.
Learned counsel for the Appellant went on to further contend that the Court of Appeal wrongly followed the trial Court applying the provisions of Section 131 (1) 132 (1) of the Evidence Act to exclude other written terms and conditions of the agreement when Exhibit B incorporated by reference the terms and
7
conditions of the agreement between the parties were reduced to the form of a series of documents/correspondence other than Exhibit B that since Exhibits B, C and D incorporated by reference, their terms and the terms of the conditions of the scheme, the documents form part of a series of documents evidencing the agreement between the parties and the ground rule under Section 132 (1) of the Evidence Act does not apply to exclude the documents. He relied on Awolaja v Seatrade GBV (2002) 4 NWLR (Pt. 758) 524 at 534; Chitty on Contracts 26th Edition, page 534 Para. 534.
For the Respondent, it was canvassed that the terms and conditions of the contract respect of its repayment still remain as they are in Exhibit B. That the relevant document on the Appellant’s liability to repay the loan is Exhibit B, the contract document upon which the car loan transaction was founded. That since parties are bound by their contract, the Appellant cannot unilaterally opt out of a contract he voluntarily entered into. He said the concurrent findings of facts by the two Lower Courts should not be disturbed. He referred to Jeric (Nig.) Ltd v UBN Plc (2000) 15 NWLR (Pt. 691) 447;
8
Fashanu v Adekasa (1974) 6 SC 83 etc.
Respondent stated on that the Appellant’s point of view is that the Court below applied the provisions of Section 132 (1) of the Evidence Act to other terms of the agreement to exclude Exhibits C and D and the Conditions of the Scheme, Also that the Court of Appeal failed to strictly interprete the terms and conditions of Exhibits B and E1, E2 and E3 in determining the liability of the Appellant in respect of the car loan and personal loans respectively, which was not correct.
The Respondent’s reaction is that this Court should go along the concurrent findings of the two Courts below which findings were supported by the evidence led, properly evaluated and the probative value adequately ascribed thereto by them. That there being no miscarriage of justice, this Court should not deviate.
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
9
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 con of Exhibit B”.
On what the Court of trial based its findings, learned counsel for the Respondent appropriately brought out clearly and that as 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
10
personal loans having been reduced writing 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 that there 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 and the evaluation of the evidence and the
11
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. Adekassa (1974) 6 SC 83; Otun v Otun (2004) 14 NWLR (Pt.893) 381.
The case of Shell B. P. Petroleum Development Company v Jammal Engineering (Nig.) Ltd (1974) 4 SC 33 at 72, cited by Appellant a judgment of the Supreme Court per Coker JSC did not offer any assistance to the Appellant as he wanted, rather, the authority supports the Respondent’s positon. I shall quote it for effect and that is:
In Shell B.P. Petroleum Development Company v Jammal Engineering (Nig.) Ltd 1974 4 SC 33 at 72, the Supreme Court per Coker ISC observed:
“The final exercise of judgment must of necessity involve a consideration of all the correspondence tendered in order to establish the case and all that was produced in order to disprove the existence of the contract. It is only after such detailed consideration that a Tribunal can fairly come to a conclusion as to whether or not the parties actually arrived at an agreement –
See
12
Thomas Hussey v John Horne Payne (1879) 4 App. Car. 311. The task of analyzing the several letters and attempts to reconcile the one with the other is undoubtedly a very difficult one calling for the most serious examination of each and everyone of several documents until whether the Tribunal is able to say that indeed a contract has been established”.
It is evident in the final analysis that the parties being bound by the contract they entered into which herein is Exhibit B, the terms and conditions must be respected by Court and so this issue is resolved in favour of the Respondent and against the Appellant.
ISSUE NO. 2
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.
Arguing for the Appellant, learned counsel said that under Order 11 of the High Court of Lagos State (Civil Procedure) Rules, 1994 that a Defendant can only be allowed to defend an action where he is able to satisfy the judge by his Statement of Defence or
13
Affidavit that:
a) He has a good defence on the merits to the case, or
b) Such facts as may be deemed sufficient to entitle him to defend the action generally, or
c) The Claim does not come within the purview of Order 3, Rule 4.
He cited Adebisi Macgregor Ass. Ltd v NMB Ltd (1996) 2 NWLR (Pt. 431) 378 at 387; Macaulay v NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283 at 325.
That to satisfy itself as to whether there are facts sufficient to entitle the Respondent to defend, the Court of Appeal should have looked at all the papers filed i.e the Respondent’s Amended Statement of Claim, the Defence to Counter-claim, the Respondent’s Statement of Defence and Counter-claim and the Respondent’s Affidavit showing cause together with all the exhibits annexed to them.
For the Appellant was further submitted that the Appellant has shown the papers filed that there are issues dispute which ought to be tried and there are reasons for a trial and he ought to have been given leave to defend the action. That the summary judgment given against the Appellant by the Court below was erroneously made as there was a plausible dispute between
14
Respondent and Appellant for which leave should have been granted the Appellant by the Court of Appeal to defend the action. He cited Bulls v Miles (1968) 3 All ER 632 at 637; R. G. Canter Limited v Clarke (1990) 2 All ER 209 at 212 – 213.
In response, learned counsel for the Respondent contended that the factual situation representing the Appellant’s defence did not constitute a good defence on the merit to the claim of the Respondent. He referred to Afribank v. Alade (2000) 13 NWLR (Pt.685) 591. That the Appellant’s Affidavit showing cause and the accompanying Exhibit were bereft of material evidence on those above-mentioned points and so the Court of Appeal was right in affirming the summary judgment of the trial Court. That the fact that a borrower is unable to repay a loan does not make the loan agreement frustrated in law.
The stance of the appellant that his continued retention in the employment of the Respondent is a condition precedent to his repayment of the personal loans and his employment having been terminated by the Respondent, the enforcement of the personal loans had been frustrated is not sustainable either in the con of the
15
facts of this case or the prevailing law.
This because the contracts of employment and personal loans between the Appellant and the Respondent are two distinct contracts having distinct subject-matters and their duration not co-existent nor can it be said one is dependent on the other or that the right to terminate the contract of employment by either party could operate as a condition precedent to the repayment of the personal loan or balance thereof.
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 at the Appellant, grave as that might be would not alter the course of events of the repayment as his estate would bear
16
the liability. I anchor on the case of Davis Contractors Ltd v Fareham U.D.C. (1056) AC 696.
Again the grouse of the Appellant on the summary judgment made by the trial Court which Appellant posits was in error.
On this Order 11 of the High Court (Civil Procedure) Rules 1994 of Lagos State would be of assistance and so stated hereunder:-
Order 11 of the High Court of Lagos State (Civil Procedure) Rules, 1994 provided that:
“Where the Defendant appears to a writ of summons specially indorsed with or accompanied by a statement of claim under Order 4, Rule 4, the plaintiff may on affidavit made by himself or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed (if any liquidated sum is claimed), and stating that in his belief there is no defence to the action except as to the amount of damages claimed, if any apply to a judge in Chambers for liberty to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to. The judge thereupon, unless the defendant shall satisfy him that he has a good defence to the action on merits or shall disclose such facts as
17
may be deemed sufficient to entitle him to defend the action generally, may make an order empowering the plaintiff to enter such judgment as may be just, having regard to the nature of the remedy or relief claimed”.
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.
I have no difficulty in resolving the two issues in favour of the Respondent.
In conclusion therefore, all the issues resolved in favour of the Respondent and clearly the appeal lacking in merit, I hereby dismiss
18
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.
SC.143/2006
