UNITED BANK FOR AFRICA PLC v. HABILA W. MARCUS (2015)

UNITED BANK FOR AFRICA PLC v. HABILA W. MARCUS

(2015)LCN/7805(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of March, 2015

CA/K/466/2013

RATIO

APPEAL: ISSUE FOR DETERMINATION; WHETHER ISSUES FROM DETERMINATION MUST BE EMANATE FROM THE GROUND OF APPEAL AND THE IMPLICATION OF ANY ISSUE FORMULATED OUTSIDE THE GROUNDS OF APPEAL

Now, the position of the Law as to whether a Respondent to an appeal who has not filed a cross-appeal or a Respondent’s notice can formulate issues for determination is well settled. It is trite that while such a Respondent can frame issues for determination different from those formulated by the Appellant, the Respondent’s issues must emanate or arise from, or relate to the grounds of appeal. This is because in brief writing, the issues for determination must be confined to and be circumscribed by the grounds of appeal filed by the appellant who is the aggrieved party and who challenges the Judgment appealed against. It stands to reason that any issue formulated outside the grounds of appeal is incompetent and liable to be struck out. JATAU VS. AHMED (2003) 4 NWLR (Pt. 811) 498. EMESPO J, CONTINENTAL BANK LTD (2003) 5 NWLR (Pt. 814) 540, NTEOGWUILE VS. OTUO (2010) 16 FWLR (Pt 238) 58. per. AMINA AUDI WAMBAI, J.C.A.

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

UNITED BANK FOR AFRICA PLC – Appellant(s)

AND

HABILA W. MARCUS – Respondent(s)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of Kaduna State High Court in suit No. KDH/KAD/21/2010 delivered by Hon. Justice B. Muhammed on the 28th day of June, 2012 wherein Judgment was entered in favour of the Respondent in the sum of N2,800,000 claimed by the Respondent as illegal deductions by Appellant from his (Respondent’s) account.

By his statement of claim before the lower Court, the Respondent as the plaintiff, claimed against the Appellant then as the defendants the following reliefs:-

“1. The Plaintiff claims against Defendant the sum of Two Million, Eight Hundred Thousand Naira (N2,800,000.00) only being the total sum the Defendant illegally deducted from UBA Account No. 00500250002389 without the agreement or consent of the Plaintiff.

In the alternative,

2. The Plaintiff’s claim against the Defendant is for an account to be taken and rendered of the UBA Account No. 00500250002389 for the debt due to the Plaintiff in respect of the illegal deductions made by the Defendant from the month of May 2008 to the date of the Judgment of this suit.

3. An

Order for the payment of any money found to be due to the Plaintiff on the taking of the account referred to above.

4. Interest on the above sum at the rate of 21% per annum from May 2008 until payment thereof of the sum claimed.

5. The cost of filing and prosecuting this action as well as legal costs”.

The facts of the case on the part of the Respondent, a businessman, are that the Respondent who was a staff of the Kaduna Refinery and Petro-Chemical Company (K. R. P. C.) a subsidiary Company of the Nigerian National Petroleum Corporation (NNPC), is a customer of and maintains a salary/private account No. 00500250002389 with the Appellant, a commercial Bank, at its NNPC IPPMC Depot, Kaduna, Kaduna State.

Sometimes in May, 2008, the Respondent applied for and was granted a personal loan (credit facility) of Four Million Naira (N4 M) by the Appellant to be repaid in four years at a monthly instalment of N126,000 until fully repaid and which was to expire on the 24th April, 2012.

Sometimes in May 2009, the Respondent voluntarily retired from the service of his employers. He applied for and was granted a mandate by the Appellant for his

pension to be paid by his employers through the said salary/private account. Then, on the 2nd September, 2009, the sum of N13,105,613.00 was deposited into the Respondent’s said account by his employers as his gratuity. Respondent withdrew part of the money and left a balance of N3,400,000 in the account and issued a cheque of N3,000,000 to his brother, PW2, for withdrawal from the account. PW2 presented the cheque for cashing on Friday 5th September, 2009 but was told to come back Monday 07/09/2009. An official of the Appellant called the Respondent who had travelled to USA, on phone to confirm if he issued the cheque. Respondent confirmed issuing the cheque to PW2.

However, in spite of the credit balance in his account, the cheque was not honoured. Respondent was later informed that the N3M could not be withdrawn from his account by the third party (PW2) because the Appellant, contrary to the agreed mode of instalmental monthly payment, illegally deducted the outstanding balance of N2.8M at once from the Respondent’s account in satisfaction of the facility. The appellant also continued to deduct the sum of N126,000.00 every month in spite of having

deducted the sum of N2,800,00.00 which was the outstanding balance. All efforts made by Appellant to see the Manager were thwarted by DW1 as the manager also refused to see the Respondent. The Respondent’s letter of complaint as well as that of his solicitor to the Appellant, were unreplied.

On the part of the Appellant, the grant of the loan, (credit facility) to the Respondent, was predicted on two conditions, viz:

1. The Respondent’s employment with his employers which the Respondent assured the Appellant would subsist beyond the tenure of the loan, and

2. On the payment of the Respondent’s monthly salary into his said account with the Appellant.

?The credit facility was also subject to several terms and conditions stipulated in the letter of offer of 6th May, 2008, (exhibit PD3) which included a term that the Appellant has the right to revise or cancel the facility at any time and without notice to the Respondent if circumstances in Appellant’s sole opinion justifies such an action. Respondent also made an undertaking to regularise the account in the event of separation/severance from his employment before full payment of the loan.

About one year after the loan was availed the Respondent, the Appellant observed that an unusual lump sum of N13,000,000.00 was deposited into Respondent’s account and upon inquiry, Appellant found out to its shock and dismay that contrary to the agreement, the Respondent had retired from his employment without notice to the Appellant and without regularising his account as he undertook to do.

A day after the said N13,000,000.00 Million was dropped into the Respondent’s account, and the Respondent withdrew the sum of N10M leaving a balance of N3.4 M in the account, only two days after that withdrawal, the Respondent issued a cheque of N3M (exhibit PI) to PW2 for withdrawal.

The Appellant who realised the intentions of the Respondent, decided to exercise its right under the facility and refused to pay the N3M cheque to PW2. Rather, the Appellant decided to deduct the outstanding balance of the facility, the sum of N2.8M, for fear of losing that unpaid balance, for even if the Respondent’s pension was being paid into the account, that was not the mode of repayment of the loan.

?After hearing the witnesses for both the Respondent and the

Appellant and considering the written addresses of both counsel, the learned trial judge in its considered Judgment delivered on the 28th June, 2012, while entering Judgment for the Respondent held inter alia:

“It is obvious, from the evidence before me that as at the time the Plaintiff issued the cheque (exhibit P1) to PW2, he had in his account enough money to satisfy same but it was not honoured by the Defendant because the sum of N2.8 Million Naira was deducted from the Plaintiff’s account in satisfaction of the facility granted to him. And as at the time, the 48 months tenor of the facility has not lapsed. Looking at the availability clause, the Defendant’s right to reverse or cancel the facility under the said exhibit is not absolute it is subject to the banking practice.

Therefore, for the Defendant to justify its action it must show that it acted in accordance with the banking practice. See Sections 135 136 and 137(2) of the Evidence Act What is this banking practice? The defendant has failed to show by way of evidence as what the banking practice is. Banking Practice is not a matter that the Court can take Judicial notice of under the Evidence Act…..

The only logical conclusion therefore that can to be drawn is that, the Defendant acted contrary to the terms of the facility (exhibit PD3) by deducting the sum of N2.8 Million Naira from the Plaintiff’s account before the end of the tenor of the facility and by failing to honour the Plaintiff’s cheque Exhibit P1 issued to PW2.

On the whole I resolve the issue for determination in favour of the Plaintiff and against the Defendant.

Accordingly, I hold that the Plaintiff’s claim number one succeeds. And having so held, there is therefore no need to go into the alternative claims.”

The Appellant was dissatisfied with the said Judgment of the Lower Court and through its Counsel, I. K. Anyalewechi Esq., filed a notice of appeal on 03/07/2012 and raising therein 5 (five) grounds of appeal.

?In accordance with the Rules of this Court, Parties filed their respective briefs of argument. The Appellant’s brief of argument was filed on 03/06/2014 pursuant to an order of Court granted on 28/05/2014 for extension of time for the Appellant to file his brief of argument, wherein the Learned Counsel for the Appellant distilled 3 issues for

determination, viz:-

“(i) Whether the Lower Court was right in holding that the Respondent had enough money in his account to pay the cheque the Respondent issued to PW2. When same was presented for payment (ground 1)

(ii) whether on a proper consideration of the terms of Exhibi9 PD3 and PD4, the Appellant was wrong in terminating the loan transaction with the Respondent and deducting the outstanding sum from the Respondent’s terminal benefit, (grounds 2 and 3)

(iii) Whether having regard to the facts and documentary evidence placed before the Court by the Appellant, the Lower Court was right in entering the Judgment in favour of the Respondent instead of dismissing his claim as prayed by the Appellant (ground 5)”

The learned Respondent’s Counsel, B. E. Gwadah Esq. on his part distilled a sole issue for determination to wit:

“WHETHER THE LEARNED TRIAL JUDGE PROPERLY EVALUATED THE EVIDENCE ADDUCED BY ALL THE PARTIES ON THE BALANCE OF PROBABILITIES AS REQUIRED BY LAW IN THE CIRCUMSTANCES?”

I shall adopt the issues formulated by the learned Appellant’s Counsel but in a condensed and recast manner as follows:

“(1) Whether by

exhibits PD 3 and PD 4, the Appellant was entitled to terminate the loan agreement before its tenure and recover (deduct) the outstanding balance of N2.8 Million Naira at once from the Respondent’s terminal benefit.

(2) Whether having regards to the evidence before the Court, the Lower Court was right in holding that the Respondent had enough money in his account to pay the N3M cheque issued to PW2 and in entering Judgment in favour of the Respondent”.

ISSUE NO. 1

WHETHER BY EXHIBITS P(D) 3 AND P(D) 4 THE APPELLANT WAS ENTITLED TO TERMINATE THE LOAN AGREEMENT BEFORE ITS TENURE AND RECOVER (DEDUCT) THE OUTSTANDING BALANCE OF N2.8 MILLION NAIRA AT ONCE FROM THE RESPONDENT’S TERMINAL BENEFIT.

It was canvassed for the Appellant that the Law is trite that parties are bound by terms of the contract entered into and executed by them and that in interpreting the terms, the Court is bound to give their plain and ordinary meaning to them and not to extend their ambit or give a technical interpretation to the terms.

ISHENO VS. JULIUS BERGER (NIG) LTD (2008) ALL FWLR (Pt.415) 1632 at 1653-1654 H-A and GENERAL OIL LTD VS. F.S.B. INT’AL BANK PLC

(2005) ALL FWLR (Pt 277) 1007, GLOBESTAR ENGNR.CO. NIG. LTD VS. MALLE HOLDINGS LTD (2005) ALL FWLR (Pt. 256) 1309 at 1324-1325 G-D and CHIEF S. O. AGBERAU &1 OR VS. DRANTHONY MINIRA & 2 ORS. (2008) ALL FWLR (Pt 409) 559 at 586 Paras A-4 B-E were referred to.

Counsel submitted that exhibit PD3, the offer letter, contain the terms and conditions of the facility including the term as to the availability period, in accordance with the general banking practice which was understood by the Respondent in cross-examination to mean that irrespective of the stated period and terms for the payment of the loan, the Bank (Appellant) reserves the right to reverse or cancel the agreement without notice or recourse to the Respondent if in the sole opinion of the bank (Appellant), circumstances arise to justify the doing of such as did happen in this case. It was thus, submitted that exhibit PD3 can not be interpreted to mean anything more than that the Appellant as lender to the Respondent, can lawfully cancel the facility it granted to the Respondent at its sole option and without waiting for the full four (4) years tenure and without recourse to the Respondent.

That the decision of the Learned trial Judge to the effect that the Appellant must first establish what general banking practice means before relying on it to cancel the agreement and withdraw the outstanding balance of N2.8M at once, would lead to absurdity and make the Appellant’s right unenforceable.

Learned Counsel insisted that apart from the wrong interpretation given to exhibit PD3 and reading into it what was not the intendment of the parties, the learned trial Judge failed to give any consideration to the failure of the Respondent who executed exhibit PD4, which also formed part of the terms, to comply with same (the terms of exhibit PD4).

On his own part, the learned Respondent’s Counsel whose sole issue raised in this appeal does not on its face pointedly and clearly address the Appellant’s 2nd issue under consideration nor the Appellant’s issue No. I, submitted that the Appellant’s issues merely complain and question the way and manner of the evaluation of the evidence by the learned trial Judge which is its primary function and which evaluation the Appellant has failed to show that the Lower Court did not properly do, the Appellant

having woefully failed to identify/specify the evidence improperly evaluated or not evaluated at all to establish that if the error complained of had not occurred the conclusion reached would have been different or that miscarriage of justice has been occasioned. WOLUCHEM VS. GUDI (1981) 5 SC 297 at 293 and ADELUMOLA VS STATE (1988) 1 NWLR (Pt.73) 683 at 691 were referred to.

Learned Counsel submitted that where as in this case the trial Judge performs its duty and properly evaluates the evidence, the Appellate Court would not interfere. He relied on NKENBISI & ANR VS. STATE (2070) 1-2 SC 745 Paras 10-20. The Court was urged to hold that the trial Judge properly evaluated the evidence, believed the witnesses, acted on their evidence and that there was no perversion in the decision of the Lower Court. ELEBURUIKE VS. OYEWOLE (2004) WRN Vol. 51, 66 at 91 lines 25-35 was referred to.

To this state of the Respondent’s brief of argument, the learned Counsel to the Appellant in his Appellant’s reply brief of argument submitted that although the Respondent can frame his own issues for determination, the issues must not only emanate from the grounds of

appeal but must also in compliance with Order 18 Rule 4 (2) of the Court of Appeal Rules, 2011 answer all material points of substance contained in the Appellant’s brief which the Respondent’s terse brief of argument failed to comply with as it completely ignored the core questions raised by the Appellant on the propriety of certain findings made by the Lower Court upon which the final Judgment revolved as canvassed in the Appellant’s issues 1 and 2, the consequence of which is that the Respondent has conceded to those points raised and argued in the Appellant’s brief of argument particularly, issues 1 and 2. He relied on HON. MUYIWA INAKOJU & 17 ORS v. Hon. Abraham ADELEKE & Ors (2007) ALL FWLR (Pt 353) at 110 PARAS D-G.

confined to and be circumscribed by the grounds of appeal filed by the appellant who is the aggrieved party and who challenges the Judgment appealed against. It stands to reason that any issue formulated outside the grounds of appeal is incompetent and liable to be struck out. JATAU VS. AHMED (2003) 4 NWLR (Pt. 811) 498. EMESPO J, CONTINENTAL BANK LTD (2003) 5 NWLR (Pt. 814) 540, NTEOGWUILE VS. OTUO (2010) 16 FWLR (Pt 238) 58.

Thus, all that such a Respondent who does not wish to adopt the issues formulated by the Appellant is entitled to do in framing his own issues for determination is to re-cast the issue(s) by giving them a slant favourable to his point of view but without departing from the complaints raised in the ground of appeal. See IGBINOBA VS. IGBINOBA (2003) 2 NWLR (Pt. 806) 39. In OKELOLA VS. BOYLE (1998) 2 NWLR (Pt.539) 546 Ogundare JSC (of blessed memory) made the point clear when he held thus:-

“This Court has laid down in a number of cases that an appeal will only be determined on issues arising out of the grounds of appeal before the Court and no arguments on any issue not predicted on such grounds of appeal will be

countenanced”.

Thus, issues raised by the Respondent must flow from, relate to or be linked or connected to the grounds of appeal. That is not the only hurdle that the Respondent has to cross where he decides not to adopt the issue(s) formulated by the Appellant. The Respondent must also comply with Order 18 Rule 4(2) which requires the Respondent’s issue(s) to answer all material points of substance contained in the Appellant’s brief and all points which he wishes to concede to as well as the reasons why the appeal ought to be dismissed. CHIEF JOSEPH OLAGUNJU OLANIYAN & ORS VS. OBA GABRIEL OYEKANMI ADENIYI & 1 OR (2007) ALL FWLR (Pt 387) 916, at 926, Paras A-B. See also Order 18 Rule 4(2) of the Court of Appeal Rules, 2011.

?What then are the material points of substance in the Appellant’s brief with respect to the Appellant’s issue No. 2? The substance of Appellant’s argument under this issue, can be summarized thus:-

(1) that by a proper consideration of the terms and conditions contained in exhibits PD3 and PD4 executed by the Respondent, the Appellant was right and in accordance with general banking practice, which term was

understood by the Respondent, to have cancelled the contract before its tenure without any notice to the Respondent and deducting the said outstanding balance of N2.8M at once from the Respondent’s terminal benefit and

(2) Secondly, that the trial Court was wrong to have held that the Appellant had a duty to establish by evidence what is meant by general banking practice before terminating the agreement and deducting the said sum of N2.8M. These are the material points of substance which the Respondent’s brief must answer, address or attack to comply with Order 18 Rule 4(2) of the Rules of this Court.

?Considering the Respondent’s brief of argument already summarised in this Judgment, there is no doubt, not even the slightest doubt that the Respondent’s brief falls short of this requirement as it is completely mute to the material points in the Appellant’s brief of argument. The Respondent brief of argument has cunningly shyed away from the main substance of the Appellant’s complaint and has rather hidden under the general principle of Law that once the trial Court whose primary duty it is to evaluate evidence does so, an Appellate Court can not interfere

except where the evaluation was not properly done or not done at all. This principle of Law does not in the instant appeal, avail the Respondent with respect to the specific points of substance raised by the Appellant in his brief of argument attacking the Judgment of the Lower Court. The Respondent’s refusal either trickishly, or deliberately to respond to the Appellant’s argument is at the Respondent’s peril who must have himself to blame, as he must be deemed to concede to those material points raised by the Appellant, OKEKE VS. ATTR. GENERAL ANAMBRA STATE (1997) 9 NWLR (PT. 519) 123. In INAKOJU V. ADELEKE (2007) ALL FWLR (Pt.353) 3 at 110 Para D-G, the Supreme Court pronounced the effect of such failure when it held inter alia:

“….The Appellant in the instant case decided not to respond to the briefs in the Court of Appeal. They can not blame the Court of Appeal for their decision especially as they had all the time in the world to respond to the case presented by the Respondents in the Court of Appeal. A party who decides to present his case miserly, cunningly or by deliberate instalments to win in the litigation has himself to blame when

the strategy back fires – Oba Aromolaran vs. Oladele (1990) 7 NWLR (Pt 162) 359, Aiomale vs. Yaduat (No.2) (1991) 5 NWLR (Pt. 191) 266 (2003) FWLR (Pt.182) 1913….”

In the instant appeal, the Respondent having failed to respond to the Appellant’s issue 2 and also issue No. I to be considered anon, must be deemed to have conceded the issues.

The scenario in this appeal with regards to the Appellant’s issue No. 2 which is issue No. I as formulated by the Court, is akin to a situation where the Respondent files no brief of argument, at least, with regards to the said issue not answered, addressed or attacked by the Respondent’s brief of argument.

The Law is that although the Respondent will be deemed to have admitted the truth of the Appellant’s brief in so far as same is borne out of the records, the Appellant will succeed on the strength of his case and not merely on the basis of the Respondent’s failure to respond to the appeal, or in this case, to the issue under consideration. UNITY BANK PLC VS. MR. EDWARD BOWARI (2008) 7 NWLR (Pt 1086). JOHN HOLT VENTURES LTD VS. OPUTA (1996) 9 NWLR (Pt 470) 10, UBA PLC vs. AJILEYE (1999) 13 NWLR (Pt 633)

116.

In the light of this, it is incumbent to consider the merit or otherwise of the Appellant’s issue as re-cast in issue No. I. The central question in this issue is whether exhibits PD3 and PD4 empower the Appellant to terminate or cancel the loan agreement or revise the terms before its tenor and without notice to the Respondent and also to deduct the outstanding balance from the Respondent’s terminal benefits at once rather than by instalmental deductions.

In other words, whether the Appellant was right in the circumstance of the case, in terminating the loan agreement and deducting the outstanding balance of N2.8 M at once before the 48 months tenor stated in Exhibit PD3 and without recourse or notice to the Respondent.

To properly appreciate the argument it is important to reproduce the contents of exhibits PD3 and PD4.

Exhibit PD3 which is the letter of offer of the credit facility/loan dated 6th May, 2008 and executed by the Appellant and the Respondent provides thus:

“May 6, 2008

MR. HABILA WYIKJAR MARCUS

KM 16 KACHIA ROAD KADUNA

KADUNA, KADUNA

NIGERIA.

Dear MR. HABILA MARCUS,

With reference to

your application dated 05-May-2008, United Bank for Africa Plc is pleased to offer you an Executive Loan under the following terms:

Amount: N4,000,000.00

Purpose: To meet Personal needs

Tenor: 48 months

Expiry: 24-April-2012

Repayment: Instalment payable Monthly up to a maximum of N113,361. 12

Interest Period: Interest payable Monthly up to a maximum of N53,268.42

Annual Interest rate: 16.00 % P.A. floating

Commitment Fee: N0.00

Processing Fee: 10,000.00

Management Fee: 1,00% flat payable annually in advance

Insurance Fee: 0.00%

Collateral: Employer’s awareness and domiciliation of salary allowances and terminal benefits, where available.

The facility is available subject to the following condition(s):

1. Evidence of pay from NNPC-KRPC required.

2. Letter of awareness from NNPC-KRPC evidencing applicant’s remuneration and status, and confirming continued domiciliation of the employee’s salary in his account while undertaking to pay to UBA Plc the applicant’s terminal benefits where available, in the event of job separation/severance or death.

3. MR. HABILU WYIKJAR MARCUS must

provide a written undertaking that his account will not be moved or closed without due consent of UBA.

4. MR. HABIU WIKIAR MARCUS must provide a written undertaking to regularize the account in the event of job separation before full repayment of the loan.

5. Acceptance of offer letter.

6. An undertaking to submit, during the validity of the above-mentioned facility, any other financial information which UBA may reasonably require from time to time with regard to his finances.

AVAILABILLITY PERIOD – Although the facility has been granted for a stated period and on stated terms and conditions, the bank in accordance with general banking practice, reserves the right to revise or cancel them at any time without notice should circumstances arise which in the sole opinion of the Bank justifies such a cause of action.

INDEMNITY CLAUSE- The customer hereby indemnifies and keeps the Bank indemnified from all expenses (legal or otherwise) that may be incurred by the Bank in respect of the grant of this facility, perfection of any or all of the documents relating to the facility and the enforcement of the terms and conditions herein contained.

Please indicate your acceptance of the above facility, terms and conditions by signing and returning to UBA Plc the enclosed copy of this letter.

Yours faithfully,

FOT: UNITED BANK FOR AFRIA PLC.

MEMORUNDOM OF ACCEPTANCE

I MR. HABILA WYIKJAR MARCUS hereby accept the facility, terms, conditions and covenants capitalized in your offer letter dated May 6, 2008 of which this is a copy”.

It is evident that the facility was subject to the 6 conditions therein stated, particularly conditions 4 and 6 which require the Respondent to provide an undertaking to regularize the account in the event of job separation before full repayment of the loan, and an undertaking to submit any financial information which the Appellant may reasonably require from time to time regarding the Respondent’s finances.

?In compliance with condition No. 4 and 6, the Appellant wrote a letter of undertaking, exhibit P(D)4, addressed to the Manager of the Appellant, which is hereby reproduced.

Exhibit P(D)4.

“The Manager

United Bank for Africa Plc

PPMC Kaduna.

Kaduna.

Dear Sir,

LETTER OF UNDERTAKING

In consideration of

the NO WAHALA LOAN of Four Million Naira granted me by your Bank, I hereby undertake that my account will not be moved or closed without due consent of United Bank Africa Plc.

I hereby undertake to submit during the validity of the above mentioned facility, any other financial information which UBA Plc may reasonably require from time with regards to my finances.

I hereby undertake to regularize the account in the event of separation before full repayment of the loan.

Thank you for your cooperation.

Yours faithfully,

HABILA W. MARCUS”

By it, the Respondent undertook inter alia, to regularize the account in the event of separation before full repayment of the loan.

Furthermore, by the “availability period” term in exhibit P(D)3, notwithstanding that the facility was granted for a stated period and stated terms and conditions, the Appellant, in accordance with general banking practice, reserves the right to revise or cancel those terms at any time without notice to that Respondent, if in its sole opinion, it justifies such a cause of action.

In embarking on the resolution of this issue, it is logical to start on the

premise of the well settled principle of Law on the canon of construction of statutes where the words of the statutes are clear and unambiguous. As a cardinal principle of the canon of interpretation of statutes or instruments, where the words used in a statute are clear and unambiguous, effect must be given to those words without resorting to any intrinsic or external aid.

Thus, where the language or the terms used in a statute including a contract are clear and unambiguous, the terms must bear their ordinary and plain meaning and neither the Court nor the parties can read anything into the terms or introduce any extraneous words or meaning into it.

UBN VS. OZIGI (1994) 3 NWLR (Pt. 333) 385, OKOTIE EBOH VS. MANAGER (2004) 18 NWLR (Pt. 905) 242 AWOLOWO VS. SHAGARI (1979) 69 SC 73, AG LAGOS STATE VS. EKO HOTELS LTD & ANR (2006) ALL FWLR (Pt. 342) 1394 MALIAM ABUBAKAR ABUBAKAR SA’IDU V. USMAN NASAMU (2012) LPELR – 7826 (SC).

As a corollary, where the words are clear and unambiguous, the only duty of the Court is to give effect to the words as there is nothing to be interpreted or constructed. ABUBAKAR VS. NASAMU (Supra) per Onnoghen JSC. It is

not the duty or function of the Court to make a contract for the parties or to rewrite the one already made by the parties. UBN vs. OZIGI (Supra) Provisional Counsel of the University of Ife (1965) NMLR 9, cited in BEST (NIG) LTD V. BLACKWOOD HODGE (Nigeria) LTD. (2011) LPELR 776 (SC) Per Fabiyi JSC at Page 23 Para D-F.

Therefore, except where fraud, duress, misrepresentation can be established, parties are bound by the terms of contract they freely entered into and neither party can depart therefrom nor can the Court read or allow to be read into the contract any term upon which there is no agreement. BABA VS. NIG. CIVIL AVIATION TRAINING CENTRE (1991) 5 NWLR (Pt 192).

The terms of the contract in contention in this appeal are the “Availability Period” clause in exhibit PD3 and the undertaking made in exhibit 4 P(D).

With respect to the phrase “general banking practice” used in the “availability period” clause, the evidence of the Respondent as PW1 makes it crystal clear that the Respondent understood the phrase as used in exhibit P(D)3, which he executed.

The Respondent in cross-examination testified inter alia (Pages 119- 120 of the record) said:

“….Based on

what I have read the Bank has the right to cancel or reverse the facility without waiting for the expiration of the tenor of 4 (four) years. The payment for the facility was to be deducted from my monthly income. The word separation or severance in exhibit P (D) 4 means end of my work with my Organization…….. It is equally correct that the defendants can end the facility at any time if there are circumstances in their own sole opinion justifying such action….”

It is therefore unarguable that the Respondent understood/understands the purport of the phrase “general banking practice” and the intendment of the term “availability period”.

At any rate, this was not the case of the Respondent before the Lower Court. Furthermore, the main quarrel of the Respondent with the Appellant is not so much with the termination of the contract but with the action of withdrawing the total acclaimed outstanding balance of N2.8 M from his terminal benefits rather than from his monthly pension which was being paid into his account with the Appellant.

The respondent’s case as deposed in his statement on Oath (Paragraphs 7-11) at Page 012 of the record, is that

when the Respondent voluntarily retired from the service of his employers, he applied for and was granted a mandate by the defendant for his employers to pay his entitlements and pension through the said account with the Respondent to enable the Respondent deduct the monthly instalment of N126,000.00 from his monthly pension of N320,000.00, which deductions were made by the Appellant. This was however denied by the Appellant.

The Appellant did not only deny issuing any letter of mandate to the Respondent to have his pension paid into the account or advising the Respondent to convert his salary account to a pension account, but also maintained that the Respondent’s pension was not the agreed source of repayment of the loan as agreed in exhibit P(D) 3. The Respondent whose duty it was to prove that he was issued with a mandate by the Appellant failed to produce the mandate letter before the Lower Court as he testified in cross-examination that he did not have it in Court, and never produced same throughout the trial.

?Furthermore, the learned trial Judge found, that the Respondent could not prove that he informed the Appellant of his separation from his

employers as required of him by exhibits P(D) 3 and P(D) 4. By the undertaking made by the Respondent, the Respondent was required to inform the Appellant whenever he disengages from his employers. This, the Lower Court held the Respondent did not do as there was no such prove before it.

As a result of the Respondent’s voluntary retirement on 5/5/09, the Appellant could not make the monthly deduction from Respondent’s account during the transition period from the month of May to September, 2009 as no salary was paid into the account. This fact which constitutes a breach of the agreement was admitted by the Respondent.

In his evidence in cross-examination, the Respondent said inter alia:

“I retired on the 05/05/2009. As at the month it was not paid salary for May as transition period because from May – September, 2009. There was no salary.

Naturally, the defendant did not deduct any salary from my account for the transition period even though they were entitle to it but they deducted the outstanding amount for the 4 months when my pension was paid.

The mode of paying the facility is from my salary which comes through the defendant. It

is correct that I read the offer letter. I voluntarily retire……

The facility has terms and conditions which are binding on me (PW1 read offer letter) based on what I have read the Bank has the right to cancel or reverse the facility without waiting for the expiration of the tenor of 4 (four) years. The payment for the facility was to be deducted from my monthly income…

…Exhibit P(D) 4 says I should regularize my account when I severe my relationship with my Organisation. It is equally correct that the defendant can end the facility at any time if there is circumstance in their own sole opinion justifying such action….” (Underlining mine, for emphasis)

Then, the sum of N13 Million was deposited into the account and upon enquiry, it was discovered that the respondent had retired and the said sum was his terminal benefit. Almost immediately after, that is a day after, the Respondent withdrew the sum of N10 Million, and two days after, issued a cheque of N3 Million (exhibit PI) to PW2 which the Appellant refused to honour for fear of losing its unpaid balance of the facility.

?Undoubtedly, the contents of exhibit P(D) 3 and P(D) 4

especially the “availability period” condition in exhibit P(D) 3 which the Respondent freely signed and clearly understood in no unclear terms, entitles the Appellant to cancel, reverse, revise or end the facility at any time and without notice to the Respondent if in the sole opinion of the Appellant the circumstance justifies such an action. This much the Respondent admitted. The failure of the Respondent to formally intimate the Appellant of this separation from his employers, the inability of the Appellant to make the monthly deductions during the period of the Respondent’s retirement transition, the almost immediate withdrawal of N10 Million and the attempt to withdraw N3 Million through PW2, which gave the DW1 the fear that the Appellant might lose the unpaid balance justifies the termination, or revision of the contract and a fortiorari, the recovery of the outstanding balance of the credit facility, in the sum of N2.8 Million at once without notice to the Respondent or waiting for the 48 months period to lapse.

Had the learned trial judge properly evaluated these facts and evidence before the Court, he would have arrived at the conclusion that

the recovery of the N2.8 Million outstanding balance by the Appellant at once from the Respondent’s account, was not illegal or unlawful but was proper in the circumstance and having regard to the terms and conditions of exhibits P(D) 3 and P(D) 4 duly executed by the Respondent and to which the credit facility was subjected. I therefore agree with the learned Counsel to the Appellant that the finding of learned trial Judge was perverse, and I so hold.

Although it could be feebly argued that the “availability period” clause which allows the Appellant to cancel, revise or end the facility agreement at its sole opinion and without recourse or notice to the Respondent seemingly is unfavourable to the Respondent, the Respondent having freely agreed to the term and executed the agreement, the said term remains part and parcel of the contract and legally binding on and enforceable against the Respondent. Neither the parties nor the Court has the liberty to depart therefrom except where the term has been lawfully abrogated or discharged. This position of the Law was expressed by Oguntade JSC in Standard (Nig) Engr. Co. Ltd & Anr vs. NBC (2006) 7 NWLR (Pt.

978) 198, when his Lordship stated inter alia:

“but contract of parties remains their contract and it will be too much of any Court to sanction an unwarranted departure from the terms of a contract into which two free and able parties entered unless such contract or any part of it has been lawfully abrogated or discharged”.

In the instant appeal, there is no such abrogation or discharge of any term of the contract in exhibits P(D) 3 and P(D)4. The Respondent therefore remains bound by the loan agreement and I so hold.

Consequently, this issue is resolved in favour of the Appellant and against the Respondents.

ISSUE NO. 2

WHETHER HAVING REGARDS TO THE EVIDENCE BEFORE THE COURT THE LOWER COURT WAS RIGHT IN HOLDING THAT THE RESPONDENT HAD ENOUGH MONEY IN HIS ACCOUNT TO PAY THE N3M CHEQUE ISSUED TO PW2 AND IN ENTERING JUDGMENT IN FAVOUR OF THE RESPONDENT.

It was submitted for the Appellant that the holding by the learned trial Judge that the Respondent had sufficient money in his account to pay the cheque of N3 Million issued to PW2 when PW2 presented the cheque to the Appellant is contrary to the evidence of the Respondent himself

at paragraph 33 of his deposition just as the holding by the trial Court that the defendant (now Appellant) did not deny the fact of the Plaintiff’s account being founded when the cheque was issued but same was not honoured, as baseless and same not having been raised at the Lower Court.

AGBORELE VS. THE STATE (2006) ALL FWLR (Pt 329) 849, 873 was referred to.

It was the further contention of the learned Appellant’s Counsel that even if the learned trial Judge believed that the Respondent’s account was funded when he issued the cheque of N3 Million to PW2, the learned trial Judge was also under an obligation to consider the reason for the Appellant’s refusal to pay the cheque, as there was no longer enough funds to pay the N3 Million after debiting the account with the outstanding balance of N2.8 Million and that the failure to so consider that obvious reason which the trial Court shut its eyes to, made the finding perverse as it is contrary to the evidence. D. S. YARO VS. AREWA CONSTRUCTION LTD & 2 ORS (2008) ALL FWLR (Pt. 400) 603, at 638 Paragraphs G-H was referred to.

As earlier stated in this Judgment, the Respondent did not in his

brief of argument respond to, answer or challenge this specific and direct argument canvassed by the Appellant. The Respondent’s very scanty brief of argument if it may be called a brief of argument in the real sense of the term, which canvassed generally that the trial Court properly evaluated the evidence without relating same to the issues in contention, completely turned a blind eye to the Appellant’s direct attack on the specific findings made by the Lower Court. The respondent’s brief which failed to answer the issues raised in the Appellant’s brief can not properly be called a brief of argument having failed to meet the main purpose of its filing, to answer issues in the Appellant’s brief – PDP VS. PHILIPS (2010) LPELR 8980 (CA).

It is settled Law that a banker is under an obligation to honour cheques drawn on it by a customer who has sufficient funds with the Bank to cover the amount endorsed on the cheques. It follows therefore that where a banker refuses to pay a customer’s cheque when the customer has sufficient funds in his account, such a refusal, failure or neglect by the Bank would constitute the breach of duty for which the bank will be

liable in damages

STB LTD VS. ANUMU (2008) 14 NWLR (Pt. 1106) 125, 151, ALLIED BANK LTD VS. AKUBUEZE (1997) 6 NWLR (Pt. 509), UBA vs. UBN PLC (1995) NWLR (Pt 405) 72 DIKE VS. A.C.B. LTD (2000) 5 NWLR (Pt 657) 441.

In the instant appeal, the Respondent pleaded in Paragraph 19 of the statement of claim that the sum of two Million Eight Hundred Thousand Naira (N2.8M) illegally deducted was still intact in his account but he was denied access to withdraw same. In Paragraph 17 of his deposition, (Page 014 – 015 of the record) the Respondent deposed that he was assured by a lady official of the Appellant on phone, that the sum of N3.4 Million in his account was intact and ready to be withdrawn but when the cheque of N3 Million was tendered, it was not honoured for the reason as given by the Appellant, that the sum of N2.8 Million was deducted by the defendant/Appellant to service the loan agreement, when no such agreement exists between him and the Respondent. He also deposed at paragraph 33 (page 023 of the record) that “the sum of N3 Million could not be withdrawn and the reason given by the defendant is that the sum of N2.8 Million was deducted by the

defendant itself and no else.

This evidence of the Respondent is in consonance with the position and the evidence of the Appellant that it exercised its right under the loan agreement to end or terminate the agreement and recovered its outstanding balance of N2.8 Million from the Respondent’s account.

PW2 who deposed in paragraphs 31 and 32 of his deposition (page 023 of the record) that the Respondent’s money was intact when he tendered the cheque for withdrawal also said in cross-examination that he does not know whether the Respondent was owing UBA (the Appellant) and that when both of them went to the Bank after the Respondent returned from the U. S. A., the Appellant told him in the Bank that the cheque could not go through.

The Appellant through the evidence of DW1 at paragraphs 11 and 14 of his deposition, stated that after the respondent withdrew the N10 Million and 2 days after made an attempt to withdraw N3 Million, it (Appellant) realised the intentions of the Appellant and so decided to exercise its right under the facility. Thus, once the Appellant exercised its rights to recover the N2.8 Million, the balance in the Respondent’s account

could not have been intact or sufficient to pay the N3 Million cheque.

I must reason with the Appellant’s Counsel that the finding by the learned trial Judge that the defendant/Appellant did not deny that the Respondent’s account was funded, is without basis and is perverse. A finding of fact will be held perverse in any of the following circumstances:

“(a) where it runs counter to the evidence and pleadings;

(b) where it has been shown that the trial Court took into account matters which it ought not have taken into account;

(d) when the decision has occasioned a miscarriage of justice”.

Min. Lodge Ltd. Vs. Ngei (2009) 18 NWLR (Pt 1173) 254, Uluebeka vs. State (2011) 4 NWLR (Pt.1237) 358, D. S. YARO vs. AREWA CONSTRUCTION LTD & 2 ORS (2008) ALL FWLR (Pt 400) 603.

In the instant appeal, the finding by the learned trial Judge runs counter to the evidence before the Court and I so hold.

I therefore hold that the trial Court was wrong to have held in the circumstances of this case that the respondent has sufficient funds in his account to pay the N3 Million

cheque issued to PW2. and to have entered Judgment in favour of the Respondent who admitted breaching the terms of the loan agreement and the Appellant’s right to terminate the agreement. These in turn justified the exercise of the Appellant’s right, as it did, to cancel the agreement and recover the outstanding balance of the credit facility granted to the Respondent.

As to the claim that the outstanding balance was not up to N2.8 Million, grounding the alternative prayer for an account to be taken and rendered by the Appellant for all illegal deductions made on the account, the learned trial judge having found for the Respondent on the main claim, found it unnecessary to consider the alternative prayer.

The respondent, in line with his alternative prayer deposed that the outstanding balance was not up to N2.8 but a figure just above two Million Naira. However, he did not testify as to the actual amount outstanding against him as at the time that the Appellant deducted the sum of N2.8 Million from his account.

Unfortunately also, the statement of account tendered by the Respondent from which the alleged illegal deductions can be verified, was

not signed by the Bank and was on that account rejected. Thus, the Respondent was unable to prove that the outstanding balance was less than the N2.8 Million recovered by the Appellant.

On the whole, this issue is also resolved in favour of the Appellant.

Consequently, this appeal is meritorious and is accordingly allowed. The Judgment of the Lower Court is hereby set aside.

I make no order to cost.

ABDU ABOKI, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother AMINA AUDI WAMBAI, JCA and I agree with reasoning contained therein and the conclusion arrived there at that the appeal succeeds.

I also abide by the consequential order in the lead judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: The detailed facts of this case have been given in the lead judgment. In summary, the parties to this appeal had entered into a contract for the disbursement of facilities to the Respondent by the Appellant Bank. The facility, which was for the sum of N4 Million, was for a tenor of 48 mouths at an instalmental payment of N113,361.12, with attendant

interest and other fees.

Subsequently, unknown to the Appellant Bank, the Respondent retired from his place of employment. On the Appellant observing a lump sum payment into the Respondent’s account, it deducted therefrom the outstanding balance of N2.8 Million due on the loan. Aggrieved, the Respondent instituted a suit before the Lower Court for refund of the lump sum deducted without his consent. In the alternative, he sought for an account to be taken and an order for repayment made in respect of any amount due to him, with interest.

The trial judge found in the Respondent’s favour in terms of the principal relief. Dissatisfied with the judgment, the Appellant has appealed to this Court.

By the terms of the Agreement between them, the Respondent had, by Exhibits PD3 and PD4, which were reproduced in the lead judgment, undertaken to “regularize the account in the event of job separation before full repayment of the loan”.

The Appellant in Exhibit PD3 also stated, inter alia:

“Although the facility has been granted for a stated period and on stated terms and conditions, the bank in accordance with general banking practice, reserves

the right to revise or cancel them at any time without notice should circumstances arise which in the sole opinion of the Bank justifies such a cause of action.”

The Appellant defended its action by placing reliance on these clauses.

I am in agreement with my learned Brother AMINA AUDI WAMBAI JCA that parties are bound by the terms of contract they freely entered into.

In determining the rights and obligations of the parties to the contract, the Court must respect its sanctity and not allow a term on which there was no agreement to be read into the contract.

See Idufueko v. Pfizer Products Ltd. (2014) 12 NWLR Part 1420 P. 95 at 115 Para C-D per Galadima JSC.

By the terms of the contract executed between the parties, the Appellant, I hold, was justified in its deduction of the outstanding balance on the facility of N2.8 Million from the Respondent’s account.

For the fuller reasons given in the lead judgment, I am in agreement that this appeal is meritorious and is consequently allowed. The judgment of the Lower Court is set aside. I agree that there should be no order as to costs.

Appearances:

I. K. Anyalewechi, with Uche AmakorFor Appellant(s)

B. E. GwadahFor Respondent(s)

Appearances

I. K. Anyalewechi, with Uche AmakorFor Appellant

AND

B. E. GwadahFor Respondent