ANOSIKE v. EAGLE FIGHT MICRO FINANCE BANK LTD & ANOR (2020)

ANOSIKE v. EAGLE FIGHT MICRO FINANCE BANK LTD & ANOR

(2020)LCN/14084(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/265/2013

Before Our Lordships:

Philomena Mbua Ekpe Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Between

CHIEF ALOYSIUS ANOSIKE APPELANT(S)

And

1. EAGLE FIGHT MICRO FINANCE BANK LTD 2. CHILLS GLOBAL INTEGRATED NIG. LTD RESPONDENT(S)

RATIO

INTERPRETATION OF WORDS OF A DOCUMENT

The law is clear on how to interpret the clear words of a document. They should be given their plain, simple and ordinary grammatical meaning. See UNION BANK VS NWAOKOLO (1995) 6NWLR (PT 400) 127, IBWA V UNAKALAMBA (1998) 9 NWLR (PT 565) 245 UNION BANK OF NIGERIA V OZIGI (1994) 3 NWLR (PT 333) p. 385. PER AWOTOYE, J.C.A.

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal against the judgment of Delta State High Court delivered on 19/02/2013 in Suit No. W/70/2010.

The claim of the appellant at the lower Court was as per his 2nd amended Statement of claim which read as follows:
a) An order of this Honourable Court directing and/or compelling the Defendants to forthwith deliver return and/or release to the Claimant the said document viz: Certificate of Occupancy no. BDSR 5562 the value of the Certificate of Occupancy No. BDSR 5562. Or
b) The sum of N50 million being the value of the Certificate of Occupancy No. 5562.
c) The sum of N60 million against the Defendant (jointly and severally) being damages/losses suffered by the Claimant as a result of the Defendants failure, refusal and/or neglect to deliver, return and/or release the said Certificate of occupancy No. BDSR 5562 to the Claimant, thereby frustrating his transaction with Banks, financial institution and other sectors requiring the said document.

Parties filed and exchanged pleadings. After hearing the parties the learned trial Judge

dismissed the claim of the Claimant in the following terms;
”From what I have stated, discussed, reviewed and pronounced upon in the preceding paragraphs, I come to the inevitable conclusion that the Claimant failed to establish his claim against the 1st Defendant whom I believe, accept and act upon their evidence before me as rightly holding onto the C of 0 of the Claimant pending the liquidation of the N6,500,000.00 owed to the 1st Defendant by the 2nd Defendant and which sum the Claimant guaranteed by the deposit of his Certificate of Occupancy No. BDSR 5562. The 1st Defendant is not liable in any form on the basis of this suit to the Claimant. The 2nd Defendant failed to lead evidence that can be believed and acted upon that indeed they are not owing to the 1st Defendant the sum of N6,500,000.00 guaranteed by the Claimant. I disbelieve the 2nd Defendant.
I hereby dismiss the claim of the Claimant initiated in this Court on 9th March, 2010 by a Writ of Summons and amplified by an amended statement of claim dated 28th January, 2011 filed on 31st January, 2011 but deemed duly filed and served on 1st March, 2011.”

Miffed by the

above decision, the appellant challenged the decision on eight grounds of appeal vide his Notice of Appeal filed on 9/4/13.

After the transmission of record of appeal to this Court parties filed and exchanged briefs of argument.

APPELLANT BRIEF OF ARGUMENT
The Appellant’s Brief was settled by K.K. Iheme Esq. and filed on the 20th day of March, 2017.
The learned appellant’s counsel raised the following issues for determination
1) Whether Exhibit “Q” or “W” (Documents titled Memorandum of Deposit) relate to an entirely different and separate loan of N6,500,000.00 (Six million, five hundred thousand Naira) advanced by the 1st Respondent to the 2nd Respondent?
2) Whether it was proper for the Learned Trial Judge to have dismissed the Appellant’s case having found that the loan facilities of N7,500,000.00 (Seven million, five hundred thousand Naira) and N1,650,000.00 (One million, six hundred and fifty thousand Naira) in Exhibits “U1” and “U3” for which the Appellant deposited his Certificate of Occupancy No. BDSR 5562 have been fully paid by the 2nd Respondent?
3) Whether the Learned Trial Judge

properly evaluated the evidence of the Appellant on Exhibit “Q” or “W’?
4) Whether the Trial Judge rightly determined and dismissed the Appellant’s case on the basis of Exhibits “Q” or “w” without taking cognizance of the import of Exhibits “U1 “, “U2”, “U3” and “K”.
OR
Whether it was right for the Trial Court to consider the evidence before it in snippets
5) Whether given the provision of Exhibit “W”, he Appellant guaranteed all further sums which the Bank may while retaining the Appellant’s Certificate of Occupancy from time to time advance to the (2nd Respondent) with interest thereon from the date of such advance?”

ISSUE 1 & 2
The learned Appellant’s counsel submitted that the learned Trial Judge erred in law when he held that Exhibit “Q” or “W” (Documents titled Memorandum of Deposit) relate to the loan of N6,500,000.00 (six million five hundred thousand naira) advanced by the 1st Respondent to the 2nd Respondent.

The learned counsel to the Appellant submitted that the facilities in Exhibit “U1” (the loan of N7,500,000.00 Seven million, five hundred thousand naira),

U3” the loan for N1,650,000.00) one million, six hundred thousand naira) are distinct, separate and different transactions with specific terms and conditions.

The learned Appellants counsel submitted that the uncontradicted uncontroverted and unchallenged evidence of the appellant that he only guaranteed the loan facilities in Exhibit “U1” and “U3” which said facilities have been fully paid ought to have been accepted as correct and relied upon by the Trial Judge and Judgment given in favour of the Appellant and urged the Court to resolve issues 1 & 2 in favour of the Appellant.

ISSUES 3 & 4
The learned Appellant’s counsel argued and submitted on issues 3 & 4 together, the counsel for the Appellant while adopting his submissions on issue 1 and 2 submitted that the Learned Trial Judge did not properly evaluate the evidence of the Appellant and on Exhibits “Q” or “W”. Learned counsel submitted that the learned trial Judge did not put the totality of Evidence of the parties on an imaginary scale as he completely disregarded the purport of the Exhibits “U1” and

“U” with exhibits” and “W” and Exhibits “U2” with Exhibit “K”.

Learned Appellant’s counsel submitted that the Trial Court failed to properly evaluate the Evidence before it in the instant case and thereby occasioned a miscarriage of justice.

Counsel submitted that the learned Trial Judge in dismissing the Appellant’s case while relying solely on Exhibits “Q” or “W” did not consider the import of Exhibit “K”.

He further submitted that the consideration of the Evidence by the Trial Court in snippets rather than adopting a holistic consideration of the entire evidence before it, viz Exhibits “U1”, “U2”, “U3”, “K” & “Q” or “W” was wrong and led to the unjust decision which results in this Appeal.

ISSUE 5
The learned counsel adopted his submissions on issues 1,2,3 and 4 and further submitted that given the provision of Exhibit Q or W the Appellant did not guarantee all further sums advanced to the 2nd Respondent by the 1st Respondent while retaining

Appellant’s Certificate of Occupancy.

He submitted that the lower Court hinges its judgment on line 8 -10 of Exhibit “Q” or “W” (Documents titled memorandum of Deposits)
Learned counsel to the Appellant further submitted that the lower Court was wrong in lifting the phase “and all further sums..” as the evidence it considered in reaching its decision and urged the Court to resolve issue 5 in favour of the Appellant.

Conclusion the learned appellant’s counsel submitted finally that the judgment of the learned Trial Judge was faulty and unjust considering the case laws to the contrary canvassed and the Evidence of the Appellant on the issues raised in the appeal and urged the Court to set aside the judgment of the Court below and allow the Appeal in its entirety.

1ST RESPONDENT’S BRIEF
The 1st Respondent’s Brief of Argument was filed on the 29th day of June, 2017 an settled by Edore Lawson Umuze, Esq. two issues for determination to wit;
1. Whether on the evidence adduced by the parties, the Appellant secured by deposit of his certificate of Occupancy, the three (3) loan

facilities obtained by the 2nd Respondent from the 1st Respondent (Grounds 1,2,3,4 & 5)
2. Whether the Appellant is entitled to the return of his certificate of occupancy NO BDSR 5562 when the 3rd loan facility has not been fully paid back (grounds 6,7 & 8).

The learned counsel to the 1st Respondent submitted on issue 1 that the Appellant guaranteed all the three (3) loan facilities which was obtained by the 2nd Respondent from the 1st Respondent.
Counsel submitted that it is trite law that a document speaks for itself and the words in a document are not be interpreted in their strict, plain and common meaning.

Learned 1st Respondent’s counsel submitted that the words contained in Exhibit Q/W are clear and unambiguous and should be interpreted according to their strict, plain and Common meaning and in interpreting the words of Exhibit Q/W in their plain strict and common meaning will show that the appellant deposited its certificate of occupancy to secure and guarantee the 3rd loan facility which the 2nd Respondent obtained from the 1st Respondent.

Counsel submitted that it is law that the appellant having signed the exhibit

is bound by same.

He further submitted that the appellant cannot now call Oral Evidence to contradict the content of Exhibit Q/W by stating that the 2nd Respondent has fully paid back the first two loans amounting to N11,641,300.00 excluding the 3rd loan in Exhibit: U2”, hence he is entitled to be given back his certificate of Occupancy and urged the Court to resolve issue one favour the 2nd Respondent.

ISSUE 2
The learned 2nd Respondent’s counsel humbly submitted that the Appellant is not entitled to be given back his Certificate of Occupancy of Reg. No. BD5R 5562 (Exhibit C) due to the fact that the 2nd Respondent is still indebted to the 1st Respondent as regards the further 3rd loan which the Appellant deposited his Certificate of Occupancy as security.

Counsel submitted that the fact the at the 3rd loan has not been fully paid back by the 2nd Respondent to the 1st respondent is not in issue as same was the unchallenged piece of Evidence by DW1 when she stated that the 2nd Defendant is still indebted to the 1st Defendant at the trial Court.

Learned 1st Respondent counsel that the Exhibit “K” cannot

be interpreted into exhibit Q/W to mean that the Appellant did no guarantee loan in Exhibit “U2” as everyman is bound by his signature to a document. He further submitted that the evidence for the Appellant that he did not offer his Certificate of Occupancy for the loan in Exhibit “U2” which has not been paid back was vehemently challenged as against the position of the learned counsel to the appellant that the evidence was not challenged.

Learned 1st Respondent’s counsel submitted that no amount of Oral evidence or legal argument can vary, alter or change the contents of Exhibit Q/W which the Appellant signed with his clear and naked eyes wherein he offered Exhibit “C” as security all the loans.

Learned 1st Respondent’s counsel submitted that the Honourable Trial Judge did no such error in evaluating the exhibits before Court thereby reaching the conclusion that the Appellant guaranteed the loan facility in Exhibit “U2”.

Learned counsel submitted further that assuming without conceding that the Managing Director of the 2nd Respondent guaranteed the 3rd loan of N6,500,000.00 (which is in

issue 1) such guarantee did not discharge the collateral deposit of the Certificate of Occupancy (exhibit C) as contained in the Memorandum of Deposit (Exhibit Q/W) which is in documentary evidence of the guarantee by way of collateral security.

He further submitted that the Principle of Privity of contract cannot come into play in this case as the issue in question, which is the liability of the Appellant as guarantor of the loan of Exhibit U2, has nothing to do with Privity of Contract.

APPELLANT REPLY BRIEF
Appellant’s reply brief was settled by HENRY O ANYEGRENI Esq. and filed on the 12/4/2018. In response to the 1st Respondent brief of argument. Learned counsel submitted that transaction of guarantee involves of least a minimum of three (3) persons that is the guarantor the creditor, borrower and donor.

Appellant’s learned counsel submitted that exhibit Q/W was a Memorandum of Deposit with which the appellant deposited his Certificate of Occupancy (Exhibit C) and nothing more.

Appellant’s Counsel submitted that the issue in question was not the liability of the Appellant as guarantor of the loan but the return of

Exhibit C.

Appellant’s counsel submitted further that the Appellant was never a party to exhibit ‘K’ for which exhibit U2 was obtained and as such he cannot be used as scape goat against the non-performance of 2nd Respondent in exhibit U2.

RESOLUTION
Learned counsel for the appellant formulated 5 issues for determination in his brief.
1) Whether Exhibit “Q” or “W” (Documents titled Memorandum of Deposit) relate to an entirely different and separate loan of N6,500,000.00 (Six million, five hundred thousand Naira) advanced by the 1st Respondent to the 2nd Respondent?
2) Whether it was proper for the Learned Trial Judge to have dismissed the Appellant’s case having found that the loan facilities of N7,500,000.00 (Seven million, five hundred thousand Naira) and N1,650,000.00 (One million, six hundred and fifty thousand Naira) in Exhibits “U1” and “U3” for which the Appellant deposited his Certificate of Occupancy No. BDSR 5562 have been fully paid by the 2nd Respondent?
3) Whether the Learned Trial Judge properly evaluated the evidence of the Appellant on Exhibit “Q” or “W’?
4) Whether the Trial

Judge rightly determined and dismissed the Appellant’s case on the basis of Exhibits “Q” or “w” without taking cognizance of the import of Exhibits “U1”, “U2”, “U3” and “K”.
OR
Whether it was right for the Trial Court to consider the evidence before it in snippets
5) Whether given the provision of Exhibit “W”, the Appellant guaranteed all further sums which the Bank may while retaining the Appellant’s Certificate of Occupancy from time to time advance to the (2nd Respondent) with interest thereon from the date of such advance?”

On the other hand, learned counsel for the 1st Respondent in his brief formulated two issues for determination.
The issues are:
1) Whether on the evidence adduced by the parties, the Appellant secured by deposit of his certificate of Occupancy, the three (3) loan facilities obtained by the 2nd Respondent from the 1st Respondent (Grounds 1, 2, 3, 4 & 5)
2) Whether the Appellant is entitled to the return of his certificate of occupancy NO BDSR 5562 when the 3rd loan facility as not been fully paid back (grounds 6,7 & 8).

I have carefully considered the issues formulated. I am of the

firm view that the two issues formulated by the 1st Respondent are wide enough for the just determination of this appeal. I therefore adopt them for the purpose of this appeal.

ISSUE 1
The resolution of this issue turns on the interpretation of the documentary exhibits tendered and admitted by the lower Court.
I hereby reproduce the most relevant of the documents. i.e. the memorandum of Deposit between MR ALOYSIUS ANOSIKE and EAGEL FLIGHT MICRO FINANCE BANK LIMITED which read thus:
MEMORANDUM OF DEPOSIT
I, MR. ALOYSIUS ANOSIKE hereinafter referred to as the DONOR} of No. deposited with EAGLE FLIGHT MICRO FINANCE BANK LIMITED the document(s) of title specified in the schedule hereto to secure repayment on demand of the sum of……………………………………………….
To be advanced by the Bank to CHILLS GLOBAL NIGERIA LIMITED {hereinafter referred to as BORROWER} together with interest thereon at the rate of 5% per month and such rate as shall from time be applied by the Bank and all further sums which the Bank may while retaining the said document from time to time advance to the customer with interest thereon from the date of such advance at the rate aforesaid.

I hereby undertake to execute at my/our own cost {whenever call upon to do so} a proper legal mortgage to the Bank on this security with interest thereon as aforesaid in such form and containing such powers and provisions as the Bank may require.
The power of leasing or agreeing to lease and of accepting or agreeing to accept surrenders of leases and tenancies conferred on Borrowers by statute in that behalf shall not be exercised without prior consent in writing and no restriction on consolidation of mortgage shall apply to this security.
It is hereby agreed that during the continuance of this security the undersigned will keep the building on the property insured against fire in the full value thereof and in the event of the undersigned failure to keep the building duly insured, the Bank may effect such insurance at he undersigned’s expense.
The said property is not mortgaged, charged or encumbered save as appears in the Deeds and the document specified.
The liability of the undersigned, if more than one shall be joint and several and no one of the undersigned shall be nor shall this security be release or discharged by the death of any

of them or by the suing of any of these debtor or security or any change in the consideration of any partnership of which any of the undersigned is a member.
IN THE WITNESS whereof these presents have executed as hereunder described this … day of …
SCHEDULE
ALL that parcel of Landed Property Comprised: Three Stores and Empty Parcel of Land
SITUATED AT: No. 6 Orehi Street, off Apala Street, Warri and Delta State.
COMPRISING IN THE AREA: 466 031 Square meters
COVERED BY A DEED OF: Certificate of Occupancy
WITH BEACON NUMBERS: BDSR5562
REGISTERED AS: NO. 20 At Page 20 In Volume D. 22 of Land Registry in the office at Benin City
IN WITNESS WHEREOF these presents have executed under My Hand and Seal this … day of … 2008
SIGNED, SEALED AND DELIVERED BY THE WITHIN NAMED
BORROWER
In the Presence of:
Name: …
Address: …
Occupation: …
WITNESS (SIGN)”
I have carefully gone through the words and contents of the above memorandum of Deposit.

I have pondered on the interpretation given to it by the learned trial Judge. I find it unassailable and unimpeachable. The

words used in the said document are very clear and permits of no other interpretation.

“And all further sums which the Bank may while retaining the said document from time to time advance to the customer with interest thereon from the date of such advance at the rate aforesaid” expands the scope of the memorandum beyond the sum of Nine million one hundred and fifty thousand naira only, to any other loans granted the customer while the documents specified in the schedule of the memorandum is within the custody of the Bank.

In the circumstance, I resolve this issue against the Appellant.

ISSUE 2
Having resolved issue 1 against the appellant and the further loan of Six million five hundred thousand naira granted to the customer not having been liquidated the appellant is not entitled to the return of his Certificate of Occupancy

No. BDSR 5562 when the 3rd loan facility has not been fully paid back, I therefore resolve this issue against the Appellant.

This appeal lacks merit. The judgment of Delta State High Court delivered on 19/2/2013 in Suit No. W/70/2010 is hereby affirmed.

This appeal is dismissed with N250,000.00 cost in favour of the 1st Respondent.

PHILOMENA MBUA EKPE, J.C.A.: I read in draft form the judgment of my learned brother, TUNDE OYEBAMIJI AWOTOYE, (JCA); just delivered.

I agree that this appeal lacks merit and I also dismiss it. I affirm the decision of the trial Court.
I am in total agreement with the order as to cost.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: For all the reasons given by my learned brother, Tunde Oyebamiji Awotoye, JCA; I also dismiss this appeal.

I abide by all the orders made by my learned brother.

Appearances:

P.E. ILEOBA For Appellant(s)

E.L. UMUZE for 1st Respondent For Respondent(s)