United Bank for Africa Plc V. Zacheaus Ogunyemi (2016)
LawGlobal-Hub Lead Judgment Report
JAMES SHEHU ABIRIYI, J.C.A.
This is an appeal against the judgment delivered on the 7th June, 2011 in the High Court of Ondo State holden at Akure. The Appellant was the Defendant in that Court while the Respondent was the Plaintiff.
The claim of the Respondent at the lower Court was for the following:
1. N10 Million as special and general damages for the unlawful withholding of the funds and loss of profit respectively in breach of agreement:
Particulars of Damages N : K
i. Money withheld by the defendant 375,611 45
ii. Loss of profit and General Damages for breach
9,624,388. 45
Total 10,000,000.00
2. 10% interest on the judgment debt from the date of judgment until the same is finally liquidated.
According to the Respondent, he was a customer of the Appellant at their Alagbaka Branch here in Akure.
?In 2004, he took a loan of N3million from the Appellant to enable him supply diesel to Electricity Board. The Government did not pay him and interest continued to mount on the facility. He asked for stoppage of interest from the Appellant.
?The Appellant agreed
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that he should pay N2,700,000 within six months by letter Exhibit B.
He repaid within six months, that is, April ? September 2005.
He paid N75,000 in excess, that is, N3,075,000.
He wrote a letter Exhibit E to the bank asking for a refund of N375,611,45.
The Appellant’s defence is that it asked the Respondent to pay N2,700,000 within six months at N50,000 monthly from April 2005. If he did not pay within six months the Bank would go back to status quo. He was to make full payment by 30th September 2005 as shown in Exhibit B. He did not fully repay by 30th September 2005. The balance as at 30th September 2005 as shown in Exhibit C6 was N73,849.27k debit. The effect of failure to repay by 30th September 2005 was to go back to status quo that is the interest would remain and the conceded sum would be paid.
It is not true that the Respondent paid 375,611.45 in excess as at 30/9/2005. It is not true that the Bank is owing the Respondent that amount.
After considering evidence led by both parties and addresses of learned counsel for both parties the lower Court entered judgment in favour of the Respondent.
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The Appellant filed an original notice of appeal containing five grounds of appeal. On 17th March, 2015 this Court granted the Appellant leave to amend the notice of appeal. The amended notice of appeal dated and filed 3rd April 2014 also contains five grounds of appeal. The Appellant presented the following three issues for determination from the grounds of appeal.
1. Whether from the state of pleadings and evidence adduced, it could be said in law that the offer contained in Exhibit B was validly accepted by the Respondent. (Ground 5)
2. Taking into consideration that the Respondent predicated his case at trial Court on Exhibit B, do the terms and conditions therein contained in Exhibit B not fundamental to the enforceability of the said Exhibit B and if yes is it not incumbent on this Honourable Court to set aside the damages awarded against the Appellant by the Lower Court. (Grounds 1, 2 and 4)
3. With due regard to the state of pleadings and evidence adduced by the parties, would it be correctly and rightly stated that the parties have submitted the issue of WAIVER before the Honourable Trial Court, warranting the
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Honourable Trial Court to predicate its judgment on the Doctrine of Waiver (Ground 3).
Although the Respondent incorporated a preliminary objection in the respondent’s brief, he nevertheless presented the following three issues for determination.
1. Whether the Learned trial judge did not rightly hold that the manner of payment is not a fundamental term, was not meant to be or was not enforced from the onset and hence that the appellant has waived the right to complain thereon.
2. Whether the fact of Exhibit B derogates from the obligation of the appellant not to unjustifiably withhold the funds of the respondent.
3. Whether the Learned trial Judge did not correctly award damages against the appellant.
The appeal was thus contested on the following briefs:
1. Appellant’s Brief of Argument dated and filed 3rd April, 2014 settled by Musibau Adetunbi, Esq.
2. Respondent’s Brief dated and filed 29th February, 2016 settled by Abiodun Fasakin, Esq.
On issue 1, learned counsel for the Appellant submitted that on the state of the pleadings and evidence led by the parties, the Respondent made an offer for the
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instalmental payment of N200,000 which the Appellant did not accept but rather counter offered by stipulating another condition contained in Exhibit B. It was submitted that a qualified acceptance of an offer like Exhibit B to offer of N200,000 made by the Respondent cannot give rise to a binding agreement between the parties, that is, the Appellant and the Respondent. We were referred to Best (Nig.) Ltd v. B.H. (Nig.) Ltd (2011) 5 NWLR (Pt. 1239) 95 at 123-127, Dalek (Nig.) Ltd. v. OMPADEC (2007) 7 NWLR (Pt. 1033) 402 at 440, Okubule v. O.M.P.E.C. (1990) 4 NWLR (Pt. 147) 723 at 743 A, Messr Sulaiman & Bros v. Hans Meher of Hamburg (1957) SCNLR 261 and Odunsi v. Boulos (1959) SCNLR 591.
It was submitted that the letter Exhibit B had discharged the original offer of the Respondent asking for instalmental payment of N200,000 and introduced another offer from the Appellant to the Respondent which the Respondent was at liberty to accept with the conditions stipulated thereto or not.
Exhibit B, it was contended granted concession of paying the principal sum which at the time was N2,700,000 as full and final settlement of the facility. Equally
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Exhibit B introduced the manner of payment of the sum of N2,700,000 which was the payment of N450,000 in six instalments starting from the month of April 2005 to end September 2005. Lastly, Exhibit B stated the consequence of non-adherence to the manner of paying the said sum of N2,700,000 as reverting to the status quo on the account of the Respondent.
Exhibit B, it was submitted made a new offer which the Respondent was at liberty to accept or not accept or counter offer in any of the following ways:
1. By conduct of the parties
2. By their words or
3. By documents that have passed between the parties.
The Respondent undoubtedly did not accept the offer of the Appellant either by word of mouth or by document. There was no acceptance by conduct either. Exhibits C1 and C2, it was submitted further show that the offer was not accepted. It was submitted that offer by conduct will only amount to acceptance if it is clear that the offeree did the act with the intention of accepting the offer. We were referred to Obaike v. B.C.C. PLC (1997) 10 NWLR (Pt. 525) 435 at 447.
?It was submitted that the unilateral alteration or
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modification of the mode of payment contained in Exhibit B has dual implications: it amounts to a rejection of the offer contained in Exhibit B, so that it cannot subsequently be accepted.
It was submitted that where there is only offer or counter-offer as in the instant case, unless there is acceptance, the Court will not find that there was agreement between the parties.
It was finally submitted that the refusal of the Respondent to pay the stipulated sum of N450,000 in the first month and the second month April and May 2005 fell short of the requirement of acceptance by conduct. We were referred to Stabilini & Co. Ltd v. Obasi (1997) 9 NWLR (Pt. 520) 293 at 303.
On issue 2, it was submitted that failure to strictly adhere to the terms and conditions of Exhibit B brings the offer contained in Exhibit B to an end.
The Respondent, it was submitted, breached a fundamental term of Exhibit B and was therefore not entitled to damages and Appellant did not breach any of the terms of the contract between the parties hence there was no basis for the damages awarded against the Appellant by the lower Court.
The lower Court,
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it was argued held the view that the Appellant wrongly withheld the sum of the N375,611.14 belonging to the Respondent. The Respondent, it was pointed out, admitted in evidence at page 32 of the record that he was indebted to the Appellant in the sum of N4million. Therefore since the Appellant failed to take advantage of Exhibit B the debt reverted to N4million that the Respondent ought to pay to the Appellant.
It was submitted that the award of N1million as general damages in the circumstances was wrong. Also the sum of N375,611.14 could not constitute special damages because the respondent was under a duty to pay minimum of N4million in view of the fact that parties had reverted back to status quo. Thus the said sum was not an over payment as wrongly held by the lower Court.
The Court was urged to resolve this issue in favour of the Appellant.
On issue 3, learned counsel for the Appellant reproduced fully the testimonies of Pw1 and Dw1. Although the Dw1 is quoted as having said in part as follows: “The respondent in 25/10/04 admitted his indebtedness and pleaded that Bank should waive the further interest…..” and “He was granted a
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waiver of over 67,000” the learned counsel for the Appellant still submitted that from the pleaded facts and evidence adduced by the parties, it is clear that neither of the parties raised or pleaded issue of waiver nor any of the parties adduced evidence of waiver. That a conscious study of the state of the pleadings in the case discloses that none of the parties pleaded waiver and no evidence of such was adduced.
It was submitted that the doctrine of waiver was not pleaded by any of the parties.
It was submitted that the last representation made by the Appellant to the Respondent in relation to the terms and conditions for granting of concession is Exhibit B.
It was submitted that any payment less than N450,000 was payment pursuant to status quo and the Appellant was not expected to reject Same or complain because the money legitimately belonged to it. This therefore placed the issue of waiver out of contention in this regard.
The preliminary objection of the Respondent to the notice of appeal alleged that the particulars of the grounds of appeal were argumentative and contained narratives.
?We were referred to Adah v.
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Adah (2000) FWLR (Pt. 41) 1909 at 1923 and Tiza & Anor v. Begha (2005) ALL FWLR (Pt. 272) 200 at 221 and 215 and urged to uphold the preliminary objection.
The learned counsel for the Respondent argued two issues even though he formulated three issues for determination.
On issue 1, he submitted that the lower Court rightly held that the manner of repayment was not a fundamental term.
It was submitted that the respondent by conduct had performed pursuant to Exhibit B by paying the agreed N2.7million within six months allowed notwithstanding the fact that the monthly instalmental sums were not strictly adhered to. The Appellant, it was submitted, accepted all payments made by the Respondent within the agreed period without alleging a breach.
It was submitted that by the conduct of the Appellant it is apparent that it had waived strict compliance with the terms of Exhibit B and or not holding the terms as fundamental.
On issue 3 which learned counsel addressed as issue 2 learned counsel for the Respondent merely reproduced at length the findings of the lower Court and submitted finally that the lower Court rightly
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awarded the sum of N1million as general damages.
Any grounds of appeal that are repetitive and argumentative and without disclosing any allegation of miscarriage of justice will be struck out. See the decision of this Court in Jimoh v. Starco (Nig.) Ltd (1998) 7 NWLR (Pt. 558) 523. I have looked at the grounds of appeal and it is clear that they all revolve around a letter dated 1st April, 2005 and marked Exhibit B at the lower Court. The grounds of appeal are therefore unnecessarily repetitive. They are however not argumentative and they do not disclose any miscarriage of justice. In the circumstances I do not think they should be struck out. I decline to strike them out. I overrule the preliminary objection.
This appeal revolves around Exhibit B and turns on the interpretation given to it by the lower Court. Therefore the appeal can be determined on issue 1 which encompasses the other two issues formulated by the Appellant. I will in the circumstances determine the appeal on issue 1 formulated by the Appellant.
?An enforceable contract will not come into existence unless an acceptance has been brought to the notice of the offeror
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corresponding precisely with the terms proposed in the offer. Any form of acceptance is valid whether it is verbal, written or merely inferred from conduct of the parties.
Acceptance of an offer must be plain unequivocal, unconditional and without variance of any sort to the offer. Unless accepted any variation discharges an original offer.
A counter offer is a statement by the offeree which has the legal effect of rejecting the offer and proposing a new offer to the offeror. It puts an end to the previous offer of the initial offeror so that it cannot subsequently be accepted by the offeree. See B.C.C. Plc v. Sky Inspection (Nig.) Ltd. (2002) 17 NWLR (Pt. 795) 86, O.M.P.A.D.E.C. v. Dalex (Nig.) Ltd (2002) 12 NWLR (Pt. 781) 384 and Afrotec Technical Services (Nig.) Ltd. v. M.A. & Sons Ltd. (2000) 12 S.C. (Pt. 11) 1.
Exhibit B around which this case revolves reproduced immediately hereunder reads as follows:
“April 1, 2005
Chief Zaccheaus A. Ogunyemi
KM 1 Ado/Owo Expressway Junction
P.O. Box 3954
Akure, Ondo State
Dear Sir,
RE: OUTSTANDING INDEBTEDNESS TO STANDARD TRUST BANK PLC
We refer
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your letter dated 16th February 2005 in respect of your outstanding indebtedness to the bank currently outstanding in the sum of N2,767,237.79Dr as at 31st March 2005 excluding interest in progress.
After a review of your request for concessionary payment on your above outstanding indebtedness, we are happy to convey to you our Executive Management’s approval to accept the sum of N2,700,000.00 (Two million seven hundred thousand naira only) as full and final settlement of your outstanding indebtedness to be paid in six equal installments of N450,000.00 effective April 2005.
The bank has by this action shown magnanimity in the hope that you will take advantage of this sacrifice to redeem your obligations and resume your long-standing and mutually beneficial business relationship with us.
Take note that in the event of any breach of the above mentioned repayment terms, the concession granted shall be withdrawn and the bank shall in the circumstances revert to status quo on your account.
We trust that you will avail yourself of this generous gesture to settle this lingering indebtedness immediately and amicably.”
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Under cross-examination the Respondent stated in part as follows:
“I was granted 3m. I cannot remember the period of the overdraft. When the period expired I did not pay back. It was then 4m because of interest? I wrote to the bank for a concession. I was granted a reduction. A letter was given to me to that effect my total debt before the reduction was 2,767,237.79. I was asked to pay before 6 months.
The conceded sum was 2.7m. I was directed to pay N450,000 every month starting from April 2005. That if I fail to pay within 6 months I will now pay the total Sum?.
I was paying 450 every month. I don’t have tellers to show for my payment I was paying in bits to make 450 at the end of the month. The total payment at the end of May 2005 was not up to 450″‘
See page 32-33 of the record of appeal.
It is very clear from the evidence extracted under cross-examination reproduced above that the Respondent was clearly not in doubt as to the consequence of not paying N450,000 every month starting from April 2005. That if he did not pay this amount within six months he would then pay the total amount owed which in his own words again
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as shown above was N4million.
It is clear from the evidence also extracted from the Respondent under cross-examination reproduced above that he did not pay the N450,000 every month. That is why he said he had no tellers to show that he did. He even stated in clear terms that he was paying in bits. Although he claimed that he paid in bits to make up the N450,000 at the end of the month, the amount paid for May 2005 was not up to N450,000. He has not shown that any payments made in bits amounted to N450,000 for any month. It is therefore clear that he did not pay N450,000 every month for six months. This is confirmed by Exhibits C1-C6 his statements of account tendered before the lower Court.
The consequence of his not paying the N450,000 every month as he himself said under cross-examination was that he lost the concession granted in Exhibit B and had to settle the facility under the initial terms. That meant a reversal to the N4million being principal and interest which on his own admission under cross-examination he was supposed to pay before the offer of concession through Exhibit B.
?From the statement of defence of the Appellant
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particularly Paragraph 13 and Exhibit C6 tendered by the Respondent, the Respondent was still indebted to the Appellant in the sum of N73,849.27. There was therefore no basis for the finding of the lower Court that the appellant withheld the Respondent’s N375,611.14.
In the circumstances there was no basis for the award of N375,611.45 special damages.
There was also no basis for the award of N1million general damages.
It is clear from the foregoing that the only issue for determination should be resolved in favour of the Appellant.
I resolve the said issue in favour of the Appellant and against the Respondent. I allow the appeal.
The judgment of the lower Court is hereby set aside. The claim of the Respondent is dismissed and he is directed to refund the sum of N1,375,611.45 (One Million, Three Hundred and Seventy-Five Thousand, Six Hundred and Eleven Naira, Forty-Five Kobo) being the judgment sum executed against the Appellant.
Appellant is awarded N30,000 cost to be paid by Respondent.
Other Citations: (2016)LCN/8746(CA)
