Judgment
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Court of Appeal, Abuja Judicial Division, delivered on February 24th, 2015 in appeal No. CA/A/673/2013. By the said judgment, the Court below granted the Respondent’s appeal against the Appellant.
BACKGROUND FACTS The Appellant happens to be a financial institution duly incorporated under the Companies and Allied Matters Act, CAP. C.20 Laws of the Federation of Nigeria, 2004.
Contrariwise, the Respondent is a parastatal of the Federal Government of Nigeria duly established pursuant to the provisions of the Nigeria Social Insurance Trust Fund Act CAP. N88 Laws of the Federation of Nigeria. The Respondent as a Social Trust Fund, duly established by the Federal Government, has had a cause to be engaged in a banking business with the Appellant.
On 19/05/2008, the Respondent applied vide a letter to roll over various sums of money in the Appellant’s Bank for a fixed terms of 31 days. The whole essence of the transactions between the parties was to gain some interests.
On 18/8/2008, the Appellant made some payments to the Respondent at annual interest rates of 11% and 2% penal rate, as against the 2% daily interest rate allegedly agreed upon by the parties.
On 13/8/2010, the Respondent introduced the Accounting Firm of D.E. Ogona & Co. to the Appellant, thereby demanding further interest payments from the Appellant. The Appellant, however, denied any lability, claiming that it had fully paid those sums of money to the Respondent.
Thus, on 21/6/2011, the Respondent caused a writ of summons to be instituted at the FCT High Court by CAC Agidi Esq. of Eric Apia & Co. By virtue of the endorsement on the face of the writ of summons and statement of claim (filed along with the writ), the Respondent claimed against the Appellant the following reliefs: a. N16,639.23 being the amount of the 4 days penalty for default plus the regular interest on the placement of N205,581,158.11. Less and N294,803.83 already paid as interest and penalty. b.
The sum of N62,582,512.11 being the amount for the 5 days penalty for default plus the regular interest on the placement of N616,559,877.02. c. The sum of N40,225,913.48 being 21% interest on both placement from the due dates to 20th August 2010. d. 21% interest per annum on the total sum from 21st day of August 2010 till judgment is delivered. e. 10% interest from the date judgment is given until final liquidation of the debt. f. N6,000,000 being the cost of the prosecuting of this suit. g. Exemplary damages.
Parties haven filed and exchanged their respective pleadings, the matter proceeded to full blown trial. At the conclusion of the trial, the trial Court delivered the vexed judgment on May 2nd, 2013 to the conclusive effect that the Respondent’s claim lacked merits and accordingly dismissed same.
Not unnaturally, the Respondent was utterly dissatisfied with the decision of the trial Court, thus appealed to the Court below. On February 24th, 2015, the Court below delivered the vexed judgment to the following conclusive effect: In the facts relating to this appeal, there is no convincing evidence that there were verbal or oral negotiations to written agreement between the parties.
The fact that the Appellant did not immediately request for the balance of the penalties calculated as per daily default does not amount to a waiver of the balance payment. … Having resolved the two issues in favour of the appellant this appeal succeeds and it is hereby granted. For the avoidance of doubt, the appellant is hereby awarded the monies against the respondent… I award costs of N30,000.00 in favour of the appellant against the respondent.
On February 1st, when the appeal came up for hearing, the learned counsel had the opportunity of addressing the Court and adopting the argument contained in their respective briefs, thereby warranting the Court to reserve judgment to today.
The Appellant’s Amended brief, settled by Taiye Oniyide Esq. on 07/5/2018, spans a total of 21 pages.
At page 3 thereof, three issues have been nominated for determination of the appeal: (i) Whether the lower Court was right when they held that the defence of Estoppel by conduct did not avail the Appellant. (Relates to Ground 1) (ii) Whether the lower Court was right when they held that the Respondent is entitled to its reliefs. (Relates to Ground 2) (iii) Whether the lower Court was right when they held that the trial Court did not properly the evidence of admission by conduct adduced by the Respondent. (Relates to Grounds 1 & 3).
The issue 1 has been extensively canvassed at pages 3-12 of the said brief. Without much ado, it is submitted that the Court below was wrong when it held that the defence of estoppel by conduct did not avail the Appellant.
Copiously alluding to the finding at page 323 of the Record, it is argued that. the Court below arrived at that decision without properly evaluating the Appellant’s submissions and evidence placed before it.
See BLACK’S LAW DICTIONARY 8th Edition; Section 169 of the Evidence Act 2011, regarding the concept and definition of estoppels.
Briefly sketching the facts of the case culminating to the instant appeal (paragraphs 3.04-4.03 at pages 4-5), it is argued that it is not in dispute, that there was an express agreement regulating the transaction between the parties, but this agreement was varied after the Appellant paid 11% interest and 2% penal fee vide business letter to which the Respondent did not reply.
It is postulated, that silence is an admission which is capable of acting as estoppel, thereby denies a remedy. See OLUFUNMISE VS. FALANA (1990) 3 NWLR (pt. 136) 14 paragraph B; MARADUN VS. TAMBUWAL (2015) LPELR- 24443; et al.
It was finally submitted that the cumulative effect of the Appellant’s argument under issue 1, is that a case of estoppel by conduct has been established by the Appellant against the Respondent. The Court is urged to so hold and resolve issue No. 1 in the affirmative.
The issue 2 is argued at pages 12-17 of the brief, to the effect that the Court below was wrong to have held that the Respondent was entitled to its reliefs.
Copiously alluding to pages 322-324 & 326 of the Record vis-a-vis Exhibit 19 (page 19 Record), it is argued that the Respondent was not entitled to the sums of N16,693,639.23 and the N62,582,512.11, respectively, as the Appellant had already settled the total amount owed the Respondent.
The Court is urged to so hold, and accordingly resolve the issue 2 in the negative.
The issue 3 is argued at pages 17-20 of the said brief. In a nutshell, it is submitted that a careful perusal of the circumstances of this case would show that estoppel by conduct has been proved beyond per adventure by the Appellant.Therefore, the Court is urged upon to hold that the judgment of the Court below is against the weight of evidence.
See OLONADE VS. SOWEMIMO (2014) 14 NWLR (pt. 1428). UKEJE VS. UKEJE (2014) 11 NWLR (pt. 1418) 384, et al.
The Court is urged to so hold, and resolve the issue 3 in the negative. On the whole, the Court is urged to allow the appeal.
Contrariwise, the Respondent’s brief, settled by Tuduru U. Ede Esq. on 14/8/2018, spans a total of 40 pages. At pages 3-4 of the brief, two issues have been thrown up for determination: (a) Whether the agreement of the parties in writing as to the payments of annual and daily penalty interests was varied orally thereby estopping the respondent from demanding interests as provided in the agreements between. The parties? Grounds 1 & 3; (b) Whether the Court below was right in granting to the Respondent the relief sought in the suit? Ground 2.
However, the Respondent has deemed it expedient to raise a preliminary objection at pages 4-6 (paragraphs 4.0-4.4), while the argument thereon is provided at pages 4-17 of the said brief.
In the main, the submission of the Respondent on the preliminary objection is that grounds 1, 2 and 3 of the Notice of Appeal pages 331-333 of the Record) are incompetent, thus ought to be struck out. Further submitted, that each of the three grounds of appeal (1, 2 & 3) raises evaluation or examination of facts for which leave of Court ought to have been sought and granted before they were filed. See AG BENDEL STATE VS. AG FEDERATION (1981) All NLR 85, 204 paragraph 4 per Fatayi Williams, CJN, et al.
It was argued, that no such leave was sought and none was granted. The grounds are therefore incompetent. See ALLANAH VS. KPOLOKWU (2016) 6 NWLR (pt. 1507) 1, per Kekere-Ekun, JSC @ 52-53 paragraphs G-D.
On the whole, the Court is urged upon to strike out the said grounds (1, 2 & 3) of the notice of appeal for being incompetent.
The Respondent proceeds to canvass argument on the two issues formulated on the merits. The issue (a) is canvassed at pages 17-33 of the Respondent’s brief. In the main, it is submitted that since the contract between the Appellant and Respondent was entered into writing, as shown in Exhibits P1-P6, then the tenor and terms of such a contract can only be read and known by the contents of the documents. Thus, any condition or agreement which seeks to vary the original agreement between the Appellant and Respondent must itself be in writing.
See Section 128 (1), (b), (c), (d), (e), (2), (3) of the Evidence Act; BALIOL (NIGERIA) LTD VS. NAVCON (NIG) LTD (2010) 16 NWLR (pt. 1220) 619, 630 paragraphs A – E; et al.
Further submitted, that the Court below amply captures the inapplicability of the doctrine in the present case and was therefore right by its findings at pages 321-322 of the Record. The Court is urged to so hold and resolve issue (a) in favour of the Respondent.
The Respondent’s Second Issue (b) is argued at pages 33- 37 of the brief thereof. In a nutshell, it’s submitted that the Respondent proved and was entitled to reliefs (i), (ii), (iii), (iv) and (v) of the claim thereof. As such, the Court below was right when it held at pages 323 and 324 of the Record, that the Respondent was silent and did not contest reliefs (iii), (iv) and (v) of the Appellant’s claims. The three reliefs are therefore deemed admitted.”
It is postulated, that the Court below acted properly by evaluating the evidence in the face of improper evaluation of same by the trial Court. The Court is urged to discountenance and expunge issue 2 of the Appellant’s Amended brief. This is because the said issue 2 does not arise from ground 2 of the Notice of Appeal (page 332 of the Record). The Court is urged to resolve the second issue in favour of the Respondent.
On the whole, the Court is urged upon to dismiss the appeal and affirm the judgment of the Court below.
The Appellant’s Amended brief was filed on 28/7/2020, but deemed properly filed and served on 02/12/2020. It spans a total of 19 pages. Pages 1-9 (paragraphs 1.1-2.33) of the brief specifically deal with the Respondent’s preliminary objection.
It is submitted, that a careful perusal of grounds 1 and the particulars thereof revolve around the complaint that the Court below misunderstood the law on estoppel (Section 151 of the Evidence Act, 2011), and wrongly ascribed probative value to the evidence on record.
The Court is urged upon to dismiss the preliminary objections.
DETERMINATION OF THE RESPONDENT’S PRELIMINARY OBJECTION As alluded to above, by the Respondent’s Amended Brief of Argument (14/8/2018) at page 4 (paragraphs 4.0-4.2), an objection is raised, thereby the competence of Grounds 1, 2 and 3 of the Notice of Appeal (pages 331-333 of the Record) and issues 1, 2 and 3 of the Appellant (pages 3-20 of the Appellant’s Amended Brief) respectively.
The Notice of Preliminary Objection is predicated upon a total of 22 grounds: (a) Grounds 1 and 3 of the Notice of Appeal are on facts or mixed law and facts. (b) No leave of the Court below or this Honourable Court was first sought and obtained to appeal to this Honourable Court on the grounds 1 and 3 of the Notice of Appeal. (c) The particulars of errors to the grounds 1 and 3 of the Notice of Appeal disclose substantial issues of facts points of facts and questions of facts in the Court below or trial Court and now being challenged before this Court without leave. (d) The substantial issues of facts, questions and points of facts raised and challenged herein in grounds 1 and 3 of the Notice of Appeal were made by the trial Court against which appeal cannot lie directly to this Court. (e) Ground 3 of the Notice of Appeal questions evaluation and assessment of evidence which are matters of facts for trial Court or those to be raised only with leave of the Court below or this Honourable Court. (f) Particulars 1-4 of Ground 3 of the Notice of Appeal are all on facts and query assessment and evaluation of facts/evidence. (g) Issue 1 of the Appellant’s Amended Brief Argument is incompetent having been formulated from an incompetent ground of appeal. (h) Issue 3 of the Appellant’s Amended Brief of Argument is incompetent having been raised from incompetent grounds of appeal. (i) Issue 3 of the Appellant’s Amended Brief of Argument is incompetent having been raised from both ground 1 and 3 of the Notice of appeal and which said ground 1 has been used earlier to formulate issue 1. (j) A ground of appeal cannot give rise to more than one issue for determination. (k) Ground 1 of the Notice of appeal cannot be used to raise issues 1 and 3. (l) Grounds 1 and 3 are caught by Section 233(3) of the 1999 Constitution (as amended) and so incompetent. (m) Ground 3 of the Notice of Appeal being omnibus ground of appeal and issue 3 formulated therefrom cannot be used to attack specific question in the appeal there being no specific ground of appeal to that effect. (n) The ground 1 and 3 of the Notice of Appeal constitute appeal against decision of the High Court and arguments on the issues 1 and 3 of the Appellant’s Amended Brief of Argument are incompetent and without jurisdiction. (o) The ground 1 on estoppel by conduct is a question of fact requiring leave of the Court below or this Honourable Court first sought and obtained to challenge on a final appeal. (p) Particulars 1-6 of ground 1 of Notice of Appeal are questions of facts. (q) Issue 2 of the Appellant’s Amended Brief of Argument and arguments on it are incompetent as the omnibus ground of appeal cannot be used to generally attack a judgment on appeal (r) Ground 2 of the Notice of Appeal is incompetent as it is appeal on cost that requires leave under Section 241 (2) of the 1999 Constitution (as amended). (s) The appeal on cost requires leave of Court which in this appeal was not first sought and obtained of either the Court below or of this Honourable Court. (t) There is no jurisdiction in this Honourable Court to hear appeal from High Court. (u) There is no jurisdiction to hear and determine the appeal.
Grounds 1, 2 and 3 of the Appellant’s Amended Notice are to the following effect: 3. GROUNDS OF APPEAL The learned justice of the Court of Appeal erred in law when they held that the doctrine of estoppel by conduct is not applicable in the instant appeal. PARTICULARS OF ERROR 1. The respondent accepted a lesser amount as full and final payment under the contract pursuant to a subsequent oral agreement to vary the initial agreement. 2. Acceptance of a lesser amount as full and final payment of a contractual sum is sufficient consideration in law. 3.
The Respondent received the Appellant’s latter of 18/8/2008 forwarding the sum of N1,104,856.18 and the sum of N294,803.8 respectively, being 11% interest rate and 2% penalty for the delay in the transfer of the Respondent’s investment of N616,559,816.02 and a further, N205,581,156.11 which the Respondent accepted unconditionally as full and final payment for the transaction. 4. It was an afterthought. for the Respondent who accepted the above sum in final liquidation of the contractual sum in 2008 to demand for a further balance in August 2010. 5.
The Appellant relied on the impression created by the Respondent by the prolonged silence as an admission by conduct of the subsequent oral agreement to vary the contract, and the Respondent is estopped from asserting the contrary. 6. The Respondent by its conduct altered the Appellant’s position to its detriment having acted on the promise or representation made by the Respondent and same cannot be allowed to revert to previous legal relation as if no such representation was made by it.
GROUND 2 The learned justice of the Court of Appeal erred in law when they held that the Respondent was entitled to N6,000,000 (Six Million Naira) being the cost of prosecuting the suit at the trial Court. PARTICULARS OF ERROR 1. No material was placed before the Court below to entitle the Respondent to Six Million Naira cost of prosecuting the case. 2. Costs are not imposed to punish the losing party but are given by law as indemnity to the successful party. GROUND 3 The entire judgment in issue is against the weight of evidence. PARTICULARS OF ERROR 1.
From the evidence adduced, a clear case of estoppel by conduct was made out by the Appellant. 2. The judgment is an affront to the well established principle of estoppel by conduct and/or standing by. 3. The Court below did not properly evaluate the evidence of admission by conduct duly established by the Appellant. 4. It is not automatic in law that oral evidence cannot be used to vary documentary evidence. Additional grounds may be filed when the judgment of the Court below is collected. 5.
RELIEFS SOUGHT AT THE SUPREME COURT (a) An order of this Honourable Court allowing the appeal and affirming the decision of the trial Court, and setting aside the judgment of the Court of Appeal. (b) Such further order(s) as this Honourable Court may deem fit to make in the circumstance of this appeal. PARTICULARS OF ERROR
Firstly, on ground 1 of the Notice of Appeal, it is not in doubt as aptly posited by the Appellant, the complaint therein is that the Court below erred in law when it held that the doctrine of estoppel by conduct is not applicable. Grounds 1 equally raises the question of whether or not the Court below considered Section 151 of the Evidence Act 2011 on estoppel before arriving at its decision.
A critical albeit dispassionate perusal of the six particulars of Ground 1 would reveal that the Appellant’s ground essentially revolves around the complaint that the Court below misunderstood the law on estoppel and resultantly wrongly ascribed probative value or proper weight to the evidence on record. See ENTERPRISE BANK LTD VS. AROSO (2014) 3 NWLR (pt. 1394) 256 @283; NJC VS. AGUMAGU (2015) 10 NWLR (pt. 1467) 365 @ 403.
Indeed, the law is well settled beyond per adventure, that a ground of appeal which does not dispute the facts but merely raises legal conclusions thereby, arising the alleged admitted, is qualified to be construed or deemed as a ground, the fact that some of the particulars supplied there upon bear semblance of facts. See OKEDARE VS. ADEBARA (1994) 6 NWLR (pt. 349) 157 @ 179 paragraphs B- G.
In the circumstance, Ground 1 ought to be, and it is hereby upheld to be a ground of law and competent.
Secondly, ground 2 of the Appellant’s Notice of Appeal vis-à-vis paragraph (b) of the particulars of errors thereof, have questionably raised the issue of evaluation or findings of facts on some material question arising therefrom. Thus, the second ground al best raises issues of mixed law and facts, thereby requiring leave of Court prior to raising same.
The law is well settled, beyond per adventure, that any appeal to the apex Court from the decision of the Court below on questions of facts or of mixed law and facts is beyond the contemplation and purview of Section 233 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Thus, for such an appeal (on issue of valid competence), the leave of either the Court below or this Court must be sought and obtained. See ERISI VS. IDIKA (1987) 4 NWLR (pt. 66) 503; NALSA AND TEAM ASSOCIATES VS. NNPC (1991) 10-12 SC 83; (1991) 8 NWLR (pt. 212) 652; ALLANAH VS.
KPOLOKWU (2016) 6 NWLR (pt. 1507) 1 @ 52-53 paragraphs G-H. Thirdly, ground 3 is unarguably an omnibus ground of appeal, which fundamentally raises a question of facts only, thereby requiring the necessary leave of Court by virtue of the provision of Section 233 (3) of the 1999 Constitution (supra). See OJEMEN VS. MOMODU (supra) per Obaseki, JSC @205 paragraphs C-E; AKIWIWU MOTORS LTD VS. SONGONUGA (1984) 1 ALL NLR 309. Most particularly, in the latter case of AKIWIWU MOTORS LTD VS.
SONGONUGA (supra), this Court aptly reiterated the fundamental trite doctrine: “It is clear to me the first ground of appeal is a ground of facts and to put it at its best the 2nd ground of appeal is mixed question of law and facts… that being the case, and since no leave has been obtained in accordance with Section 213 (3) of the Constitution, the appeal is incompetent.” Per Bello, JSC (as he then was) @ 310. See also OPUIYO VS. OMONIWARI (2007) 16 NWLR (pt. 1060) 415, per Chukwumah- Eneh, JSC @ 444 paragraph F.
In the circumstances, I uphold the Respondent’s preliminary objection and strike out incompetent Grounds 2 and 3 of the Notice of Appeal. A fortiori, the said issues 2 and 3 of the Appellant’s Amended brief, distilled from the said incompetent Grounds 2 and 3, ought to be and same are equally struck out for incompetence. Undoubtedly, the implication of striking out of the Grounds 2 and 3 and issues 2 and 3, is that the appeal ought to be determined on issue 1 (distilled from Ground 1) only. And I so hold.
ISSUE NO. 1 As copiously alluded to above, the first issue raises the question of whether or not the agreement of the parties in writing as to the payments of annual and daily penalty interests was varied orally, thereby estopping the Respondent from demanding interests as provided in the agreement between the parties. Apparently, the Respondent’s issues (a) and the Appellant’s issue No. 1 are not at all mutually exclusive.
The finding of the Court below, which forms the very basis of the first issue under discussion, could be found at pages 322-323 of the Record of Appeal, viz: In the instant case, the Respondent has not suffered nor was there any type of Appellant’s delay in demanding the balance payment of 2% daily default interest. The doctrine of estoppel is not applicable to this case. The defence of estoppel by conduct does not avail the Respondent of its liabilities under written agreements.
The Respondent shall not be allowed to resile from the written agreement he willingly entered into with the Appellant. Issue one is resolved in favour of the Appellant. It was posited by the Appellant (page 3 Appellant’s brief). that the Court below arrived at the aforementioned decision without properly evaluating the evidence and Appellant’s submissions placed before the Court.
Instructively, it is trite that in a plethora of cases reiterated the fundamental principles regarding estoppel. It was aptly posited by this Court in JACOB OYEROGBA VS. EGBEWOLE OLAOPA (1998) LPELR-SC.300/1990: Estoppel is now more than (a) rule of practice and it can rightly be described as substantive rule of law. There is estoppel where a party is precluded from saying a certain statement of fact is untrue whether in reality it is true or not.
Estoppel, in nature, is a conclusion creating a disability precluded from contending or proving in any legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. There are four kinds of estoppel, viz: Estoppel by matter of record, estoppel by deed, estoppel in pais, and promissory estoppel: Per Belgory, JSC (as he then was). In the case of FRED-EGBE VS. THE HON. JUSTICE J. A.
ADEFARASIN (1987), /SC/; (1987) ALL NLR; (1987) LPELR-1032 (SC), it was posited by this Court that estoppel is but an integral part of the law of evidence: It is no other than a bar to testimony and its sole office is either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail: In estoppel is thus either a mine layer or mine sweeper: It is never a capital unit. Normally an estoppel ought to be pleaded by the party relying on it. Per Oputa, JSC @ 34-35 paragraphs G-A.
Thus, by operation of the veritable rule of estoppel, a person ought not to be allowed to blow hot and cold, to affirm at one time and deny at another time. That’s to say, to approbate and reprobate. Indeed, he should not be permitted to mislead another person into believing a state of affairs, only to turn around to deny the existence of such state of affairs to the disadvantage of that other person. See CANE VS. MILLS (1862) 7 H & N 913 @ 927-928. Dealing generally with the doctrine of estoppel in the case of JOE IGA VS.
AMAKIRI (1976) 11 SC 1, this Court aptly held @ 12 – 13: If a man by his words or conduct willfully endeavors to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and act upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again, if a man either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him. who so believes and acts, the first is estopped from denying the existence of such a state of facts.
Per Nnaemeka-Agu, JSC @ 27 paragraphs A-G. See also CAINCROSS VS. LORIMER (1860) 3 LT 130; RAMSDEN VS. DYSON (1866) L.R.I. HL 129; MOREYO VS. OKIADE 8 WACA 46 @47-48; YUSUFF VS. DADA (1990) 7 SC (pt. 11) 18; (1990) NWLR-3538 (SC). UGHUTEVBE VS. DR. SHONOWO (2004) 18 NSCQR 7111, (2004)16 NWLR (pt. 899) 300; (2004) LPELR -3317 (SC).
In the instant case, the Respondent (as plaintiff) contends that the agreement between the Appellant herein (as Defendant) was duly entered and reduced in to writing as captured in Exhibits P1, P2, P3, P4, P5 and P6, respectively (pages 12-19 of the Record of Appeal). Paragraphs 3, 4, 5, 6, 7 and 8 of the Respondent’s statement of claim (pages 4 & 5 of the Record) were alleged to have been uncontroverted and admitted by the Appellant at paragraph 2 of the statement of Defence thereof (page 75 of the Record): 2. “The Defendant admits paragraphs 1, 2, 3, 4, 6, 7 and 8 of the statement of claim”
Now, the said paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the Respondents of 2 of the Appellant’s slate of Defence copiously alluded to above are to the following effect: 1. The plaintiff is a Federal Government parastatal established by an Act of the National Assembly and carries on banking business with the defendant. 2. The defendant is a duly registered company that carries on business of banking. 3. That by a letter dated 19th May 2008, the plaintiff applied to roll-over the sum of N205,581,156.11 in the defendant’s bank for a fixed term of 31 days. 4.
That the effective date of the placement was 23/5/2008 while due date is 23/6/2008 at an interest rate of 11% per annum and 2% penalty per day on default. 5. That the placement and the terms were accepted by the defendant vide a rollover advice no 0828988 which was received by the plaintiff on the 27/6/2008. Plaintiff shall rely on the rollover advice during trial. 6.
That the plaintiff rolled over another sum of N616,559,877.02 for a fixed tenor of 30 days at an annual interest rate of 11% with effective date being 26/5/2008 and due date being 25/6/2008 with 2% penalty per day on default in payment Plaintiff shall rely on this letter during trial. 7. That the defendant accepted the placement and the terms vide a rollover advice No. 0828991 received by the plaintiff on the 27/05/08 plaintiff shall rely on the Rollover Advice. 8.
That on the 18th of June 2008, plaintiff wrote to the defendant reminding them of the due dates which is 23/06/2008 for the placement of the N205,581,156.11 and another letter dated 18/06/08 reminding them that the placement will be due on 25th June 2008 for the N616,559,877.02 placements and the bank where the proceed should be paid into. Plaintiff shall rely on this letter.
Consequent upon the due dates for the payment of the sums as per the agreement of the parties, the Respondent wrote Exhibits P5 and P6, thereby nominating bank accounts into which the monies should be remitted by the Appellant. See Exhibits P5 & P6 (pages 16 and 17 of the Record) dated 18/6/2008.
The Appellant deemed it expedient to unilaterally annualize all the payments and thereby paid only the sums of N1,104,856.18 and N294,803.8, which according to the Respondent were far below the actual interests due as per the agreement and Respondent’s demands.
It was the Respondent’s argument, that since the contract between the respective parties was entered into in writing, as shown in Exhibits P1-P6, then the tenor and terms of such a contract can only be read and known from the contents of the said documents. Reliance is placed upon Section 128 (1) (b) (c), (d), (e), (2), & (3) of the Evidence Act.
Contrariwise, however, the Appellant vehemently posited (paragraph 4.03 of the brief thereof) thus: 4-03. It is not in dispute my Lords, that there was an express agreement that regulated the transaction between the two parties, but this agreement was varied after the Appellant met with two officials of the Respondent as to the mode of payment of interest and penalty in the transaction under reference. This explains why the Respondent did not complain after the Appellant paid 11% interest on the investment and 2% penal the vide a business letter to the Respondent did not reply.
It was against the back-drop of the following scenario that warranted the Court below to hold (at 322 of the Record), rightly in my view that: In the facts relating to this appeal, there is no convincing evidence that there were verbal or oral negotiations to a written agreement between the parties. The fact the Appellant did not immediately request for the balance of the penalties calculated as per daily default does not amount to a waiver of the balance.
The Court below equally found and held at pages 323-324 of the Record: Consequently, the Appellant having succeeded on issue one, he is entitled to reliefs (i) and (ii) of his claim reproduced, inter alia at the commencement of this judgment. The Respondent, in its brief of argument was silent and did not contest reliefs (iii) (iv) and (v) of the Appellant’s claim. They are therefore denied admitted.
In the circumstances, the only surviving issue 1 ought to be, and it is hereby resolved against the Appellant.
Hence, against the backdrop of the determination of the surviving issue 1 against the Appellant, the appeal resultantly fails, and it is hereby dismissed by me.
The judgment of the Court of Appeal, Abuja Judicial Division delivered on 24/02/2015 in Appeal No. CA/A/673/2013, is hereby affirmed.
The Respondent shall be entitled to N1,000,000.00 as costs against the Appellant.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the opportunity of reading in draft, the judgment of my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JSC, just delivered. I agree with the reasoning and conclusion that the appeal lacks merit.
I agree with His Lordship that Ground 1 is the only valid ground of appeal in the Appellant’s notice of appeal filed on 12/3/2015 found at pages 331-333 of the record, being a ground of law for which no leave is required. Ground 2 is a ground challenging the award of costs i.e. the exercise of discretion of the lower Court in affirming the award of costs by the trial Court. It is a ground of fact.
Ground 3, the omnibus ground of appeal, is also a ground of fact, which, pursuant to Section 233(3) of the 1999 Constitution, as amended, can only be filed with the prior leave of this Court or the Court below. In the absence of the requisite leave, the said grounds of appeal and the issues predicated thereon are incompetent and hereby struck out. The sole issue for determination in this appeal therefore, is issue 1 predicated on Ground 1, which challenges the finding of the Court below that the defence of estoppel by conduct did not avail the appellant in the circumstances of this case.
My learned brother has comprehensively considered and ably resolved this issue in the lead judgment. My comments are to show my support and for emphasis.
The parties are ad idem that the agreement between them was reduced into writing and embodied in Exhibits P1, P2, P3, P4, P5 and P6 respectively. The contention of the Appellant was that there was a subsequent oral agreement between them to the effect that a penalty of 2% daily interest, payable in the event of default by the Appellant, was annualized. In other words, that it was agreed orally that interest would be calculated per annum and not daily as provided for in the written agreements.
The Appellant was unbale to provide proof of the said oral agreement but relied on the defence of estoppel by conduct in contending that the Respondent had accepted payment of the penalty at the annualised rate and could therefore no longer insist on the daily rate.
The law of evidence is quite clear that a contract which is required by law to be in writing can only be varied by an agreement in writing.
See Section 128(1) of the Evidence Act, which provides: “128(1) When any judgment of any Court or any other judicial or official proceedings 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 of property, except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act, nor may the contents of such document be contradicted altered added to or varied b oral evidence.” (Emphasis mine) Sub paragraphs (b) and (d) provide thus: “Provided that any of the following matters may be proved- (b) The existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms, if from the circumstances of the case the Court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them. (d) The existence of any separate distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property.” The appellant failed to show that any of the exceptions to the general rule applied to the contact between the parties.
Sub-section (d) of Section 128(1) of the Evidence Act requires proof of a distinct subsequent oral agreement. The fact that the Respondent accepted the amount paid to it without more, cannot constitute proof of a subsequent oral agreement to vary the terms of their written contract.
The parties, in their freedom to contract, are deemed to intend to be governed by the terms of their contract. They are not permitted to adduce oral evidence to establish terms extrinsic to and to vary the terms agreed upon. See: Atiba Iyalamu Savings & Loans Ltd. Vs Suberu & Anor (2018) 13 NWLR (Pt.1637) 387; (2018) LPELR-44069 (SC) @ 49-51 G-A; Larmie Vs Data Processing & Maintenance Services Ltd. (2005) 12 SC (Pt.1) 93; (2005) LPELR-1756 (SC) @ 17 B-C; Baker Marine (Nig) Ltd Vs Chevron Nig. Ltd. (2006) 13 NWLR (Pt.997) 276 @ 287-288.
Furthermore, it is a settled principle of law that parties are bound by their agreements freely entered into and will not be permitted to resile therefrom. This is the essence of the doctrine of sanctity of contract. See: Babatunde & Anor Vs Bank of the North Ltd. & Ors (2011) LPELR-8249 (SC) @ 21 B-F; AG. Rivers State Vs A.G. Akwa Ibom State & Anor (2011) 3 SC 1; (2011) – 633 (SC) @ 22 E-F.
Where the terms of a contract are clearly expressed in a written document or documents, the Court cannot go outside those terms to ascertain the intention of the parties. See: Union Bank of Nigeria Plc Vs Ajabule & Anor. (2011) LPELR-8239 (SC) @ 39 C-9. The Court below was therefore correct when it held that the judgment of the learned trial Judge was based on speculation. For these and the more elaborate reasoning in the lead judgment, I join my learned brother in dismissing the appeal for lacking in merit.
The judgment of the Court below is hereby affirmed. I abide by the award of costs as contained in the lead judgment. Appeal dismissed.
JOHN INYANG OKORO, J.S.C.: I read in draft, the lead judgment of my learned brother, Ibrahim M. M. Saulawa, JSC just delivered. I agree that there is no merit in this appeal and deserves an order of dismissal. I adopt both the reasons and conclusions in the lead judgment as I have nothing new to add. I abide by all the consequential orders made in the lead judgment, that relating to costs, inclusive. Appeal Dismissed.
ABDU ABOKI, J.S.C.: I had the privilege of reading before now, the judgment written by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JSC with whom I am in agreement with the reasons adduced and the conclusion contained thereat, that this appeal lacks merit and ought to be dismissed. My Noble Lord has quite admirably resolved the only surviving issue distilled for the determination of this appeal.
I am in entire agreement with the reasoning and conclusion arrived at, by my learned brother IBRAHIM M. M. SAULAWA, JSC that this appeal is lacking in merit. The appeal is therefore dismissed by me.
I endorse the decision of the Court of Appeal, Abuja Division, delivered on 24/02/2015.
I abide by the consequential order(s) (if any) contained in the lead judgment, including the order as to cost. Appeal dismissed.
TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, Ibrahim Mohammed Musa Saulawa, JSC granted me the privilege of having a preview of the comprehensive leading judgment prepared and rendered in this appeal.
I am in total agreement with the lucid reasoning and conclusion and join in holding that the appeal is devoid of merit and deserves to be dismissed, it is hereby dismissed. I endorse all consequential orders including the order on costs.