EKONDO COMMUNITY BANK LIMITED V. MR. ENIEFIOK MBOM ANIETING (2013)

EKONDO COMMUNITY BANK LIMITED V. MR. ENIEFIOK MBOM ANIETING

(2013)LCN/6743(CA)

In The Court of Appeal of Nigeria

On Monday, the 27th day of May, 2013

CA/C/72/2011

RATIO

WHETHER A BANK HAS THE RIGHT TO CHARGE INTEREST ON LOANS OR OVERDRAFT FACILITIES GRANTED TO A CUSTOMER

In law, a bank or other financial institution has the right to charge interest on loans or overdraft facilities granted or given to a customer at the rate fixed by the CBN, trade or agreed by the parties to the facilities. See Agbabiaka v. FBN Plc (2006) ALL FWLR (326) 253; A. T. (Nig) Ltd. V. UBN Plc. (2010) 1 NWLR (1175) 360; Habib Bank Ltd. v. Gifts Unique Nig. Ltd. (2005) ALL FWLR (241) 234 at 257; Edilco Nig. Ltd. v. UBA Plc (2000) FWLR (21) 792. However, where a facility is granted to a customer and by agreement, the interest rate to be charged was fixed for the facility, a bank or financial institution has no right to unilaterally change, vary or after the rate of the interest to be charged on the facility without consultation and/or consent of the customer. See NBN Ltd. v. Arison Trade & Engineering Co. Ltd. (2006) ALL FWLR (326) 377; UBN Ltd. v. Sax Nig. Ltd. (1991) 7 NWLR (207) 227; UBN Ltd. v. Ozigi (1991) 2 NWLR (Pt.176) 677; Adibi v. FBN Ltd. (1986) 2 CA (Pt.II) 247; SNMAIS v. Olaogun Ent. (1999) 10 – 12 SC 46. The bank is bound by the interest rate agreed to with the customer and cannot change a rate different from the one contained in their agreement without the consent or at least knowledge of the customer. Where however the Bank notifies a customer of its change or intention to change the interest rate fixed by their agreement and the customer did not react or object to the change, he would be deemed to have accepted and consented to the change by conduct. See Shola v SGB Ltd. (1997) 2 NWLR (488) 405. There must be evidence by the Bank that the customer was duly notified or informed of the unilateral change of the rate of interest and the absence of his reaction or objection to it before such a new rate of interest can legitimately be charged on the facility by the Bank. See Construction Ind. Ltd. v Bank of the Nor.th (1968) NLCR, 81; Barclays Bank v

Hassan (1961) ALL NLR, 836; Bank of the North v Oniyio (2002) FWLR (129) 1492 at 1507; Okolo v UBN Ltd. (1998) 2 NWLR (539) 618. Per MOHAMMED LAWAL GARBA, J.C.A.

Before Their Lordships

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

Between

EKONDO COMMUNITY BANK LTDAppellant(s)

AND

MR. ENIEFIOK MBOM ANIETINGRespondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High court of Cross River State sitting in Calabar delivered on 7th November, 2010 in suit No HC/166/2006.
Briefly, the facts are that the Respondent took a loan of N1m from Davandy Finance and Securities Ltd Calabar with an interest rate of 5% per month. The respondent continued paying the loan until 2004 he wrote a letter dated 27th July, 2004 requesting for re-negotiation. The re-negotiation ended up in confirming a new interest rate of 3% per annum on the outstanding balance of the loan which was at N671,637.00.
The appellant thereafter took over the transaction. The Respondent continued paying instalmentally a total sum of N711,637.00. The Appellant thereafter sued the Respondent under the Undefended List Procedure. However, the Respondent filed his notice of intention to defend with an affidavit disclosing a defence on the merit.
Consequently, the trial Judge transferred the suit to the General Cause List. Pleadings were subsequently exchanged. The Respondent as Plaintiff claimed as follows:
“WHEREFORE, the Plaintiff claim against the Defendant as follows:
1. The sum of N800,026.69 being the loan facility with accrued interest outstanding as at 30th June, 2006.
2. 10% post judgment interest rate per month on the said sum till judgment debt is fully liquidated.
3. N150,000.00 being recovery costs.”
The respondent in his statement of defence filed on 20th day of October, 2006 contended that he was not indebted to the Appellant after paying N771,637.00 in full satisfaction of the loan balance of N671,637.00 at 3% per annum. Unilaterally, the Appellant charged the interest rate from 3% per annum to 3% per month. The letter Exhibit “9” for this change, the Respondent claims, was never communicated to him.
After a full trial, the learned trial Judge delivered its considered judgment in favour of the Respondent. Being dissatisfied, the Appellant filed his notice and four grounds of appeal. The Appellant filed his brief on 8th day of August, 2011 and articulated four issues for determination as follows:
“(i) Whether the learned trial Judge properly directed himself as to the burden of proof, having regard to the nature of the issues placed before him, in particular evidence of Pw1 vis-a-vis Exhibits “4”, “5” and “9”. (Ground 1).
(ii) Whether the learned trial Judge properly evaluated the evidence before him when in the light of Dw1 evidence vis-a-vis Exhibits “7”, “8” and “10”, he concluded that the Appellant is not entitled to its claims against the Respondent. (Ground 2).
(iii) Whether in view of the Respondent’s evidence, he has shown by cogent and preponderance of evidence that he has in fact liquidated his indebtedness to the Appellant. (Ground 2).
(iv) Whether in the absence of contradictory evidence the learned trial Judge was right to suo motu question and discredits Exhibit “9”, and relied solely on Exhibit (5)). (Ground 3).”
The Respondent filed his brief on 13th September, 2011 and also articulated two issues for determination as follows:
“1. Whether the learned trial Judge was right to hold that the applicable rate of interest on the loan was 3% per annum as stated in Exhibited “4 and “5” and not 3% per month as stated in Exhibit “9”.
2. Whether the Appellant has proved that the Respondent did not fully liquid ate his loan and the lawful interest thereon.”
The issues as articulated by both parties are on the probative value the trial Judge ascribed to the evidence elicitated. Both parties argued the issues together and so will I deal with the issues together. The learned Counsel to the Appellant submitted that the transfer of the Respondent’s loan transaction with Davandy Finance/Securities a sister company to the Appellant was based on the renegotiated interest rate of 3% per month which is lower than what was previously enjoyed. Counsel continued that the interest rate was erroneously put at 3% per annum when the liability was being transferred from Davandy to the Appellant as shown by Exhibit “4” and “5”. Counsel submitted that when this error was discovered 10 days later, Exhibit ((9)’ was written reversing the interest rate from 3% per annum to 3% per month. See Ayanlere vs. FMBN (Nig.) Ltd. (1993) 11 NWLR Pt.575 page 621 where it was held:
“Any change of rate of interest should be brought to the attention of the customer by the banker as a condition for the banker to change the agreed rate of interest.”
Counsel opined that curiously Exhibits “4”, “5”, and “9” were not signed by the Respondent. See also the case of UBN Ltd. vs. Ayoola (1993) 11 NWLR Pt.573 page 33S where the Court held:
“…In any case, there are legal authorities which support the power of banks to charge interest on loans or other advances granted to a customer even where there was no express agreement on the rate of interest to be charged. This was because the customer must have been taken to impliedly consent to an interest to be charge to his account.”
Counsel submitted that Exhibit “9” was not challenged by the Respondent and was therefore admitted. Asafa Foods Factory vs. Alraine (Nig.) Ltd. (2002) 12 NWLR Pt.353 page 375 where the Court held:
“…Evidence on material facts which is not contradicted under cross-examination and not rebutted by defence remains unchallenged and must be accepted by the trial Judge.”
Igbinivia vs. Agbofio (2000) 12 NWLR Pt.681 page 338 which held:
“When a piece of evidence unchallenged or uncontradicted by the opposing party who had an opportunity to contradict the evidence the trial court has no alternative but to believe the evidence.”
Counsel urged the court on the authority of Alibo & Ors Vs. Okusin & Ors (2010) 3-5 SC Pt I where the court held that:
“Civil cases are determined on preponderance of evidence and balance of probabilities and so he who asserts a fact must prove that fact with credible evidence that is relevant to the matter in controversy, not evidence that is irrelevant and inconsequential to the success of the claim?”
Counsel agreed that the mistake in Exhibit 4 & 5 was human error which the Respondents counsel capitalized on without regards to Exhibit 9, the letter that corrected the mistake. The court in its judgment held that:
“I must say that I find that explanation by PW1 very curious and intriguing. The initial agreement involve three entities DAVANDY FINANCE & SECURITIES LTD, the Defendant and Ekondo Community Bank as per Exhibits 3, 4, and 5 all taken together. Upon that very transaction Ekondo Community Bank paid off Davandy finance & securities Ltd in respect of Defendant’s outstanding loan of N671,637.00 transferred to Ekondo community Bank on their mutual agreement at the interest rate of 3% per annum.
QUARE: By unilaterally changing the interest rate to 3% per month after paying off Davandy Finance & securities Ltd 3% per annum and without the agreed (sic) notifying Davandy Finance of raised of interest rate what was Ekondo Community Bank up to? Was it to make extra profit on the transaction without notifying Davandy Finance…?
Counsel submitted finally that the Respondent did not tender any exhibit to show that he had cleared his debt owed to the Appellant. Counsel, therefore, urged the court to allow this appeal.
The learned counsel to the Respondent submitted that the negotiated interest agreed by the parties was 3% per annum. The 3% interest per month was a unilateral, one introduced by the Appellant in (Exhibit “9”). This was never served on the respondent and he was only aware of it during the pendency of this suit. Counsel noted that the interest rule was the bone of contention in this suit and was not pleaded in the statement of claim but only in the reply to the statement of defence.
Counsel stated that 3% per annum was what was agreed by the Appellant, the Respondent, and DFS Ltd. as per Exhibit “4” and “5”. If there had been a mistake as to interest rate it should have been communicated to all the parties. See Omega Bank Nig. Plc vs. O.B.C. Ltd (2005) All FWLR Pt.249 page 1964 where the Supreme Court held inter alia:
“It is now settled law that it is not the function of the court to make contracts between the two parties, but it is the court’s duty to construe the surrounding circumstances, including written and oral statements, as to effectuate the intention of the parties.”
Counsel submitted that parties are bound by their contract and any party in breach cannot enforce such a contract. See Bank of the North Ltd. V. Memudy Adigun Oniyo (2002) FWLR (Pt.129) page 1492 where the court held thus”
“A contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing. If a party to an agreement fails to comply with terms of the agreement, he is said to be in breach of the agreement. In that case, the guilty party cannot enforce the agreement (p.1506, paras E – F).”
Counsel argued that the Appellant cannot resile on the contract and the interest rate of 3% per annum and impose a unilateral one and expected the court to enforce the new interest rate. See Ayanbere vs. FMBC (Nig.) Ltd. (1998) 11 NWLR (Pt.575) page 621 where the court held:
“Any change of rate of interest should be brought to the attention of the customer by the banker, as a condition for the banker to change the agree rate of interest.
It was not proved that the Respondent was ever served with Exhibit “9”. See Bank of the North Ltd. vs. Oniyo (supra) where Amaizu, JCA held:
“There is no evidence to show that the respondent received notice of variation in the rate of interest, such rate of interest is therefore ineffective and should not be used in calculating the respondents indebtedness.”
Counsel urged the court to hold that 3% per annum was the rate stated in Exhibit “3” and “5” and agreed by the parties. Exhibit “9” was fraudulently reached by the Appellant without communicating to the Respondent. See Texaco Overseas (Nig.) Petroleum Co. Unlimited vs. Rangk Ltd. (2009) All FWLR Pt.494 page 1520 where the court held:
“Terms and conditions properly incorporated in a contract, are enforceable against the parties thereto who consciously have agreed to regulate their relationship by such terms and conditions. (p. 15320, paragraph “A”).”
The respondent never denied owing the Appellant a balance on the loan of N671,637.00 with interest at 3% per annum. The respondent agreed that he had paid to the Appellant a total sum of N711,639.00 in total liquidation of the loan with interest. A unilateral variation of 3% per month is fraudulent. See Hydroworks Ltd. vs. Rimi LG. (2002) FWLR Pt.110 page 1887 where it was held that:
“Interest is exaction or compensation for delay in payment. It is usually or customarily stated by the year and not by the month, monthly or daily… it is not the practice to fix interest rate per diem or by the month. It will be usurious, especially when the rate is high…”
Counsel urged the court to hold that the Appellant should not be allowed to benefit from the fraudulent interest rate unilaterally imported into the contract. Counsel finally urged the court to dismiss this appeal.
The Appellant, the Respondent and DFS Ltd. reached an agreement about the loan and interest rate. All the parties agreed on 3% per annum vide Exhibits “4” and “5”. This is the rate embodied in their contract for loan facilities to the Respondent. The parties agreed on the terms in Exhibits “4” and “5”. “An agreement is a bilateral affair, which needs the ad idiem of the parties. Therefore, where the parties are not ad idiem, the court will find as a matter of law that the agreement was not duly made between the parties.” See Odutola vs. Papersack (Nig.) Ltd. (2006) 18 NWLR Pt.1012 page 470; Olowofoyoku vs. Attorney-General of Oyo State (1990) 2 NWLR Pt.132 page 369. For an agreement to be enforceable in law, the terms of the agreement must be mutually agreed upon by the parties thereto. See Odutola vs. Papersack Nig. Ltd. (supra); Sona Breweries Plc vs. Peters (2005) 1 NWLR Pt.908 page 478; Ezenwa vs. Ekong (1999) 11 NWLR Pt.625 page 55. In the present case, the parties agreed on 3% interest rate per annum as per Exhibits “4” and “5”. It was mutually agreed upon. The Appellant thereafter unilaterally imported the interest rate of 3% per month.
“The law is that written contract agreements entered into by parties is binding on them. Where there is any disagreement between the parties to such written agreement on any particular point, the only reliable evidence and cogent source of information to resolve the claim is the written contract executed by the parties.”
See SPDC (Nig.) Ltd. vs. Emelunu (2007) 5 NWLR Pt.1027 page 347; Larmie vs. PPMS Ltd. (2005) 18 NWLR Pt.958 page 438.In this case the only document the court can resort to is the agreement Exhibits “4” and “5” mutually agreed to by the parties. Exhibit “9” made by the Appellant and uncommunicated to the other two parties is not binding on any of the parties.
“Where the intentions of the parties to a contract are clearly expressed in a document the court cannot go outside, the document in search of other documents not forming part of the intention of the parties.”
Dalek (Nig.) vs. OMPADBC (2007) 7 NWLR Pt.1033 page 402; Mneji vs. Zakhem Con. (Nig.) Ltd. (2006) 12 NWLR Pt.994-297.
The Appellant fraudulently tried to import a term i.e. 3% per month which was not in the contract. The intention of the parties, in a written contract is always gathered from the document itself. The terms of the contract are to be determined by the parties and not by the court. All that a court does is to construe the words used by the parties in the agreement. Dantata vs. Dantata (2002) 4 NWLR Pt.756 page 144. Parties are bound by the terms of contract contained in an agreement without any subtraction or addition. The court has no power to rewrite the contract for the parties. Agnotech vs. MIA & Sons Ltd. (2000) 12 SC Pt.11 page 1.It is a general rule that where parties enter into contract they are bound by the terms thereof and the court will not allow to be read into such a contract, terms on which there is no agreement. See Baba vs. Nig. Civil Aviation Training Centre (1991) 5 NWLR Pt.192 page 388; Koiki vs. Magnusson (1999) 8 NWLR Pt.615 page 492.
The parties agreed on 3% interest rate per annum vide Exhibits “4” and “5”. The court cannot import a unilateral variation Exhibit “9” into the agreement. The parties neither agreed on Exhibit “9” nor was it communicated to the Respondent nor DFS Ltd. The court can never allow that.
The lower court was, therefore, right in giving judgment against the Appellant. The interest rate binding on the Respondent was that of 3% per annum. The respondent has also proved that he had paid N711,639.00 in total liquidation of his debt to the Appellant inclusive of the interest rate of 3% per annum. There is nothing on the contrary by the Appellant. The Appellant had imported spurious charges and interest rate to the loan. The Appellant had neither proved his claim against the Respondent and neither has he controverted the Respondent’s assertion that he had liquidated his loan inclusive of the 3% interest per annum.
The various issues argued together have all been resolved against the Appellant. The appeal is unmeritorious and, therefore, dismissed. N50,000.00 cost against the Appellant in favour of the Respondent.

MOHAMMED LAWAL GARBA, J.C.A.: From the facts which led to the case before the High Court, stated in the lead judgment of my learned brother, Uzo I. Ndukwe-Anyawu, JCA, a draft of which I read, and the issues submitted for determination in this appeal, the germane issue which calls for decision is whether there was evidence that the Respondent had agreed either expressly or by necessary conduct, to the change of the interest rate from 3% per annum mutually agreed initially to 3% per month. It is common ground between the parties that exhibits 4 and 5 indicate the mutually agreed interest rate to be charged on the loan taken by the Respondent from the Appellant.
Exhibits 4 and 5 were the contract entered into by the parties on the rate of the interest to be charged on the loan and it was clearly stated to be 3% per annum. Having reduced the term into writing, the parties are bound by it and can only avoid it by producing evidence of another mutual agreement between them that the term had been changed, amended or abandoned, etc. In law, a bank or other financial institution has the right to charge interest on loans or overdraft facilities granted or given to a customer at the rate fixed by the CBN, trade or agreed by the parties to the facilities. See Agbabiaka v. FBN Plc (2006) ALL FWLR (326) 253; A. T. (Nig) Ltd. V. UBN Plc. (2010) 1 NWLR (1175) 360; Habib Bank Ltd. v. Gifts Unique Nig. Ltd. (2005) ALL FWLR (241) 234 at 257; Edilco Nig. Ltd. v. UBA Plc (2000) FWLR (21) 792. However, where a facility is granted to a customer and by agreement, the interest rate to be charged was fixed for the facility, a bank or financial institution has no right to unilaterally change, vary or after the rate of the interest to be charged on the facility without consultation and/or consent of the customer. See NBN Ltd. v. Arison Trade & Engineering Co. Ltd. (2006) ALL FWLR (326) 377; UBN Ltd. v. Sax Nig. Ltd. (1991) 7 NWLR (207) 227; UBN Ltd. v. Ozigi (1991) 2 NWLR (Pt.176) 677; Adibi v. FBN Ltd. (1986) 2 CA (Pt.II) 247; SNMAIS v. Olaogun Ent. (1999) 10 – 12 SC 46. The bank is bound by the interest rate agreed to with the customer and cannot change a rate different from the one contained in their agreement without the consent or at least knowledge of the customer. Where however the Bank notifies a customer of its change or intention to change the interest rate fixed by their agreement and the customer did not react or object to the change, he would be deemed to have accepted and consented to the change by conduct. See Shola v SGB Ltd. (1997) 2 NWLR (488) 405. There must be evidence by the Bank that the customer was duly notified or informed of the unilateral change of the rate of interest and the absence of his reaction or objection to it before such a new rate of interest can legitimately be charged on the facility by the Bank. See Construction Ind. Ltd. v Bank of the Nor.th (1968) NLCR, 81; Barclays Bank v
Hassan (1961) ALL NLR, 836; Bank of the North v Oniyio (2002) FWLR (129) 1492 at 1507; Okolo v UBN Ltd. (1998) 2 NWLR (539) 618.In the present appeal, the Appellant had argued that Exhibit 9, the new rate of interest at 3% per month was written as a result of a mistake in the transfer of liability from Davandy to it but did not suggest that the interest rate unequivocally set out in Exhs. 4 and 5, was a mistake or erroneously fixed by the parties to the loan agreement. In addition, there is no evidence however, that exhibit 9 was in fact communicated to and received by the Respondent for him to be presumed to have by his conduct, consented to the change of the rate of interest contained therein. The High Court was in the circumstance, right that the Appellant had no right to unilaterally very, alter or change the rate of interest to be charged by it on the loan granted to the Respondent without his knowledge or consent. The Appellant was bound by the rate of interest agreed to by the parties to the loan facilities as shown in exhibits 4 and 5.
For the more pungent reasons in the lead judgment and the above, this appeal undoubtedly is wanting in merit. I join in dismissing it in terms of the lead judgment.

JOSEPH TINE TUR, J.C.A: I have read the judgment delivered by my Lord Uzo I. Ndukwe-Anyanwu, I shall reproduce by important documents tendered as Exhibits “2”, “4”, “5” and “9” in the lower Court which ought to be construed together to arrive at the intention of the parties. I shall start with Exhibit “2” which reads as follows:
“December 4, 2003
Mr. Enefiok Mbom Anieting
Aneque Cosmetics
No.795 Watt Market
Shopping Complex
Calabar Road, Calabar.
Dear sir,
RE: APPLICATION FOR Nl,500,000.00 LOAN FACILITY
Davandy Finance & Securities Credit Committee has examined your proposal dated December 4, 2003 for an overall facility limit of N1,500,000.00 only and is pleased to communicate to you an approval under the following terms and conditions:
SUM APPROVED:     1,000,000.00
TYPE OF FACILITY:     Loan
PURPOSE:         To enhance working capital
INTEREST RATE:     5% per month
TENOR:       180 days
EXPIRY DATE:    June 3, 2004
CONDITIONS:
1) Legal assignment over landed property situate at Unical Satellite Town.
2) Submission of Fire and Theft Insurance Policy with DFS Ltd. as first loss beneficiary.
3) Opening and operating Current Account with Ekondo Bank Ltd.
4) An Acceptable TPG.
5) DFS Limited may realize securities after 14 days from the expiration of the tenor and shall call for the payment of any outstanding balance from you if the value of the realized securities cannot liquidate the total loan plus interest.
6) Repayment could be made in part or in bulk on or before the expiration of the tenor.
7) In case of non-repayment at date of expiry of this facility, the cost of perfecting security and pursuing repayment shall be borne by you.
8) Disbursement will be effected only after fulfillment of all conditions precedent.
Davandy Finance & Securities Limited reserves the right to alter, amend or entirely cancel this offer anytime prior to disbursement if conditions prevailing no longer subsist.
Please indicate your acceptance of these terms on the attached copy of this memo and return same to us for documentation.
Yours faithfully,
For: Davandy Finance & Securities LTD.
Signed                 Signed
Manager (DFS)             Officer (Treasury/Credit).”
Exhibit “4” reads as follows:
“DAVANDY FINANCE AND SECURITIES LIMITED
(MEMBER OF THE NIGERIAN STOCK EXCHANGE)
RC 312740
9, CHAMLEY SIREET
PMB 1208, CALABAR,
CROSS RIVER STATE, NIGERIA.
6TH AUGUST, 2004,
MR. Enefiok Mbom Anieting,
Aneque Cosmetics,
No.795 Watt Market,
Shopping Complex,
Calabar.
Sir,
RE: RENEWAL OF LOAN AGREEMENT
Your letter of 27/7/2004 on the above subject matter refers.
Management has graciously approved that the sum of N671,637.00 being the balance of your loan of Nl,000,000.00 only with us as at 27/7/2004 should be transferred in line with your request to our sister Company, Ekondo Community Bank Ltd., Calabar.
Please note that you are to repay the above sum of N671,637.00 only plus interest of 3% per annum within twelve months with effect from August, 2004.
Yours faithfully,
For: Davandy Finance & Securities Ltd.
Signed                 Signed
Manager (DFS)        Officer (Capital Market)
Cc: Operations Manager
Ekondo Community Bank Ltd.
Above for your information and necessary action. Copy of the approval ,’s attached. Please create a loan account in the sum of N671,637.00 for Mr. Enefiok M. Anieting of Eneque Cosmetics who has a Current
Account with you an credit DFS Ltd. Account accordingly.
Signed                 Signed
Manager (DFS)          Officer (Capital Market).”
Exhibit “5” also reads as follows:
”EKONDO
Mr. Enefiok Mbom Anieting,
Aneque Cosmetics,
No.795 Watt Market,
Shopping Complex,
Calabar.
Sir,
RE: RENEWAL OF LOAN AGREEMENT
Further to the letter of 6th August 2004 addressed to you by our sister company, Davandy Finance and Securities Ltd. we hereby advised that a loan account in the sum of N671,637.00 has been opened for you by us.
Please note that:
(1) The loan amount of N671,637.00 is to be repaid by you within twelve (12) months with effect from August, 2004 at 3% p.a.
(2) The loan amount of N671,637.00 is to be covered by the existing security tendered to DFS Ltd. by you.
(3) All charges accruing from the perfection of your security plus any possible cost of recovery shall be chargeable to your account.
(4) Ekondo reserves the right to call in the credit at any time.
(5) Assignment and/or charge shall be perfected ninety days after default.
We hope you will strive to ensure that the facility is liquidated within the stipulated period.
Yours faithfully,
For: Ekondo Community Bank Ltd.
Signed                 Signed
Authorized Signatory        Authorized Signatory.”
Exhibit “9” reads as follows:
“August 17, 2004
Mr. Enefiok Mbom Anieting
Aneque Cosmetics
No.795 Watt Market
Shopping Complex
Calabar.
Dear Sir,
RE: RENEWAL OF LOAN AGREEMENT
With reference to our letter to you and the letter of 6/8/04 from our sister Company, DFS Ltd. in respect of the above subject matter, we hereby advise that the approved interest rate for the loan amount of N671,637.00 is 3% per month and not 3% per annum.
Please note and be strictly guided.
Yours faithfully,
For: Ekondo Community Bank Ltd.
Signed                 Signed
Authorized Signatory        Authorized Signatory.”
The appellant’s predecessor reserved the right in Exhibit “2” to alter, amend or entirely cancel the offer anytime prior to disbursement if conditions prevailing no longer exists. Thus having commenced the disbursement of the loan to the respondent it was too late for the appellant to have sought in Exhibit 339″ to alter the interest rate from 3% per annum to 3o/o per month. In Mandilas & Karaberis Ltd. vs. Otikit (1963) 1 All NLR22 at 26 Bairamian, F. J., held that:
“…When a contract is reduced into writing, the writing gives the terms agreed upon.”
See also Ihezukwu vs. UniJos (1990) 21 NSCC (Pt.3) 80 at 88 lines 25-35; Olaniyan & Ors. vs. Unilag (1985) l All NLR 314 or (1985) 2 NWLR (Pt.9) 599. Accordingly, the appellant was bound by the terms agreed upon by the parties in Exhibit “2”. Doing so afterwards is a breach of the contractual agreement set forth in Exhibit “2”. I also dismiss this appeal and abide by the orders of my Lord.