Union Bank Of Nigeria Limited & Anor V. Benjamin Nwaokolo (1995)

LAWGLOBAL HUB Lead Judgment Report

The respondent herein as plaintiff, by his writ of summons dated 29th November, 1984 and taken out in the High Court of Kwara State holden in ilorin, claimed against three defendants jointly and severally (the 1st and 2nd out of whom are now the present appellants) the following reliefs:-

“1. A declaration that the plaintiff has ceased to guarantee any subsequent loan granted by the 1st defendant to the 3rd defendant since after the repayment of the initial N6,000.00 loan.

2. A declaration that the 3rd defendant is primarily and solely liable for any loan negotiated by him outside the original N6,000.00 as such negotiation was made without information to, or knowledge and consent of the plaintiff.
3. a declaration that the withdrawal of the plaintiff’s saving pass book by the 2nd defendant acting for the 1st defendant is wrongful.
4. An injunction restraining the defendants jointly and severally from further holding the plaintiff responsible for the indebtedness of the 1st defendant.
5. The sum of N5,000.00 against the defendants jointly and/or severally being damages suffered by the plaintiff as a result of the 1st and 2nd defendants’ refusal to allow the plaintiff to operate his savings account.”

Pleadings having been ordered, duly filed and exchanged by the parties, the case went to trial before the trial court which found for the respondent, stating that it agreed with him that he had repaid the loan and for that reason was discharged from the guarantee. In addition, it awarded the respondent N2,000 general damages for alleged wrongful seizure of his pass book (Exhibit 7) jointly and severally against all three defendants.

The appellants being aggrieved by this decision, appealed to the Court of Appeal sitting in Kaduna (hereinafter simply referred to as the court below). The Court below, by a majority of two to one, upheld the trial court’s decision but reduced the general damages to N500 with N1 ,500 as costs. The appellants (the 3rd defendant, Tunde Olu-Samuel, Trading in the name and Style of Babat Associates, having decided to take no further part in the proceedings both in the court below and in this court, no more will be said of him unless where necessary or appropriate) have both further appealed to this Court on three grounds contained in their Notice of Appeal dated 6th May, 1988.

While the appellants subsequently filed their brief of argument and served same on the respondent in accordance with the rules of court, the latter did not respond by filing a respondent’s brief. Three issues, in order of sequence overlapping the three grounds of appeal, were submitted at the appellant’s instance for our determination, to wit:

1. Whether the majority in the Court of Appeal was right, in accepting the trial Judge’s method of interpreting the guarantee, by having recourse to extraneous documents not made by the same parties, when the words of the guarantee agreement, Exhibit 3, are clear, unambiguous and devoid of any unclarity.
2. Whether the majority of the Court of Appeal was right when they failed to consider and pronounce upon grounds of appeal validly filed by the appellants, upon which issues were formulated in the appellants’ brief and thereby occasioned a grave miscarriage of justice to the appellants.
3. Whether the majority of the Court of Appeal having found that the trial Judge was wrong to have awarded general damages of N2,000.00 could make a volteface to award punitive cost of N1,500 against the appellants in the circumstances

For a better appreciation of the issue I have set out above, which I propose to consider serially hereafter, it is pertinent at this juncture for me to review, albeit briefly, the facts that gave rise to this case as follows:

The claim of the plaintiff/respondent (hereinafter in the rest of this judgment called the respondent) was that he guaranteed the account of Tunde Olu-Samuel trading as Babat Associates and who was 3rd defendant as hereinbefore stated, is neither taking part in the appeal herein nor did he do so in the court below. For the purposes of this appeal, he is simply referred to as the Principal Debtor. The respondent claimed that he paid the money he guaranteed before the end of the three months stipulated in the guarantee agreement (Exhibit 3) but that the appellant wrongfully impounded his savings pass book (Exhibit 7) in purported realisation of the debt owed by the Principal Debtor.

The appellants for their part, contended that the money guaranteed had not been paid and that the guarantee agreement (Exhibit 3) was a continuous or continuing guarantee, adding that the failure of the Principal Debtor to liquidate the debt entitled them to take possession of the respondent’s pass book (Exhibit 7) which was the document used to support the guarantee. The appellants further maintained that the trial court’s employment or use of extraneous documents, to wit: Exhibit 1 (a private correspondence between non-parties to Exhibit 3, which itself is a document that is simple, unambiguous and straightforward) and Exhibit 2 (an agreement to which 1st appellant was not a party) and further, that Exhibits 1 and 2, not having been incorporated by reference into Exhibit 3, ought not to have been relied upon to discharge the respondent from the debt obligation.

ISSUE 1: When this appeal came up for hearing on January 30, 1995, learned counsel for the appellants in briefly expatiating on Issue 1, which is very crucial to the success or failure of this case, first adverted bur attention to the reliance the trial court placed on extraneous documents, namely, Exhibit 1 and 2 to interpret the Deed of guarantee (Exhibit 3). Exhibit 1, which he asserted, is copied into the Record, is a personal letter between respondent and one Mr. Ipidunmi while Exhibit 2, also copied in the Record, is an agreement between the Principal Debtor and respondent. The Deed of guarantee (Exhibit 3), which learned counsel also pointed out is copied in the Record, was a document made between respondent and the 1st appellant. Exhibits 4 and 5 learned counsel further explained, were letters exchanged between the parties after Exhibit 3 had been executed. After pointing out how the court below on appeal had confirmed the trial court’s view on the matter, learned counsel drew our attention to the additional authorities he had submitted to buttress his argument. Now, Section 132(1) of the Evidence Act, Cap. 112 Laws of Federation provides, inter alia that –

“132(1) When any judgment of any court or any other judicial proceedings or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition or property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained; nor may the contents of any such documents be contradicted, altered, added to or varied by oral evidence.”

The above rule of evidence which has been given expression by way of interpretations by this Court in several cases, to which I shall come shortly, has some recognised and accepted or laid down exceptions. The recognised and accepted exceptions are as set out in the proviso to subsection (1) and in subsections (2) and (3) of Section 132 both of which stipulate that –

“(2) Oral evidence of a transaction is not excluded by the fact that a documentary memorandum of it was made, if such memorandum was not intended to have legal effect as a contract, grant or disposition of property.

(3) Oral evidence of the existence of a legal relationship is not excluded by the fact that it has been created by a document, when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established or is carried on.”

A party wishing to call in aid the exceptions referred to above must bring his case by credible evidence within the purview of the recognised exceptions. Thus, in Halsbury’s Laws of England Third Edition, Volume 11 pages 296-398, paragraph 646, the learned authors stated the position thus: