EKONDO MICROFINANCE BANK LTD v. AKOM SURVEY SERVICES LTD (2020)

EKONDO MICROFINANCE BANK LTD v. AKOM SURVEY SERVICES LTD

(2020)LCN/14765(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, November 04, 2020

CA/C/175/2016

RATIO

CONTRACT: REVOCATION OF AN OFFER

an offer or counter offer as in Exhibit D4 may be revoked at any time before notification of acceptance. And, when an offeree, including a counter offeree expressly rejects an offer made to him, it becomes effective when notice of rejection actually reaches the offeror. See MAJOR GENERAL GEORGE INNIH (RTD.) & ORS v. FERADO AGRO AND CONSORTIUM LTD. (1990) 5NWLR (Pt. 152) 604. PER OWOADE, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

EKONDO MICROFINANCE BANK LTD APPELANT(S)

And

AKOM SURVEY SERVICES LIMITED RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the Cross River State High Court, Calabar Judicial Division delivered by Hon. Justice Adie Attoe-Onyebueke on 3/3/2016.

The Respondent as Claimant in the Court below took out a Writ of Summons accompanied by a Statement of Claim against the Defendant Appellant on 26/7/2013 wherein she claimed as follows:
1. A declaration that the Claimant is not indebted to the Defendant in any way.
2. An order that the Defendant shall forthwith release the Certificate of Occupancy No. CM/CRC.5273/EA 160 presently in the custody of the Defendant.
3. N50,000.000.00 (Fifty Million Naira) general damages.
4. Cost of this action.

Pleadings were filed and exchanged by the parties.
The facts of the case are that both parties were involved in a loan transaction which was secured by a collateral of a Certificate of Occupancy. That in the course of the loan agreement, the Claimant made part payment and parties later met and agreed on the final payment and a letter to that effect was written and sent to the Claimant informing him of the

agreed amount to be paid within a specified time.

Before the expiration of the time given in the letter as in Exhibit C6, the Claimant had paid the agreed sum of N33,000,000.00 (Thirty-three Million Naira) into the Defendantâs account on the 18/7/2013.

However, before the 18/7/2013, the Defendant had on the 16/7/2013 sent a letter to the Claimant which was received and signed for by the Secretary to the Claimant. (Exhibit C7).

In Exhibit C7, the Defendant repudiated the counter-offer as contained in Exhibit C6 on the ground of lack of authority and by a letter of 19/7/2013, the Defendant demanded the sum of N5,000,000.00 (Five Million Naira) only out of the N9,236,613.33 on the Claimants as at 19/7/2013. The Claimant not being comfortable with the above request, brought this action to ascertain whether based on the facts of the case, the Claimant is indebted to the Defendant.

âAfter the close of evidence, Written Addresses were filed and exchanged. In his judgment, the learned trial judge recognized that the Respondent paid the previously agreed sum of N33,000,000.00 (Thirty-three Million Naira) to the Appellant’s account

despite the repudiation of the Appellant’s Counteroffer as in Exhibit C7. The trial judge also rejected the argument of the Claimant’s Counsel that the Claimant was no longer indebted to the Defendant on the ground that “the Defendant has no right to interest on a loan for a fixed period of time. And that what the Defendant should demand is payment of damages after the expiration of time”.

The above line of argument by the Claimant’s Counsel was rejected by the learned trial judge on the basis that by so doing, the Claimant’s Counsel was setting up a new case outside the pleadings of the parties. Nevertheless, the learned trial judge found that the Appellant Defendant had by ExhibitC6 made the Respondent Claimant to act by paying the sum of N33,000,000.00 (Thirty-three Million Naira) and that the Appellant Defendant could no longer repudiate, cancel or countermand Exhibit C6 on the ground of lack of authority to issue same. The learned trial judge relied on the cases ofIGA &ORS v. AMAKIRI & ORS (1976) 11 SC 11-12 and held that “the letter of 16/7/2013 was not written in good faith whereof the Claimant has

proved her case on the balance of probability”. He thereafter made the following orders:
1. A declaration that the Claimant is not indebted to the Defendant in any way.
2. An ORDER on the Defendant to release the Certificate of Occupancy No. CM/CRC5273EA160 presently in the custody of the Defendant to the Claimant.
In respect of the claim of N50,000,000.00 (Fifty Million Naira) as General Damages, I do not think it is proper to award any general damages considering the industry put in this matter by the defence counsel.
Therefore, I make no order as to general damages and cost of action.

Dissatisfied with this judgment, the Appellant filed a Notice of Appeal containing five (5) grounds of Appeal in this Court on 5/5/2016. The relevant briefs of Argument for the appeal are:
1. Appellant’s brief of Argument is dated 13/6/2016 but was filed on 14/6/2016. It is settled by E. O. E. Ekong.
2. Respondent’s brief of Argument is dated 11/7/2016 but was filed on 14/7/2016. It is settled by A. A. ANNAH, Esq.
3. Appellant’s Reply brief of Argument is dated 19/7/2016 and filed on the same date. It is settled

by E. O. E. Ekong, Esq.

Learned Counsel for the Appellant nominated a sole issue for the determination of the appeal. It is
Whether having regard to the settled facts of this case, the judgment of the lower Court entered on the 3rd March, 2016 in favour of the Respondent herein is correct in law?
Learned Counsel for the Respondent also formulated a sole issue for the determination of the appeal thus:
Was the conclusion of the learned trial judge that the Claimant was not indebted to the Defendant justified in law, notwithstanding the reasons given by the learned trial judge.

In arguing the sole issue in the appeal, learned counsel for the Appellant submitted that at trial, the following undisputed facts were established.

(i) An invitation was extended by the Board Credit Committee of the Appellant Bank to the Managing Director of the Respondent vide letter dated 12th July 2013 (Exhibit C5) to attend a meeting on Monday 15th July 2013. (page 22 of the Record of Appeal)

(ii) After attending the aforesaid meeting, the Respondent by letter dated 15th July, 2013 signed by its Managing Director offered to pay the Appellant the

sum of N32,000,000 (Thirty-two Million Naira) only on or before Friday 19th July, 2013 as full and final payment of its debt to the Appellant as per Exhibit C4.(page 23 of the Record of Appeal.)
(iii) The Board Credit Committee of the Appellant Bank by letter dated 15th July, 2013 (Exhibit C6) addressed to the Respondent made a Counter offer proposing that the Respondent should pay the sum of N33,000,000.00 (Thirty-three Million Naira) only on or before the 19th of July, 2013 in full and final payment of the Respondent’s debts. (at page 21 of the Record of Appeal).
(iv) Before the Respondent could accept or act upon the aforesaid Counter offer, the Appellant by letter dated 16th July, 2013 (Exhibit C7 which was also tendered as Exhibit D5 in the trial Court) suspended its earlier counter offer pending the approval of the Board of Directors of the Appellant Bank. (pages 20 and 48 of the Record of Appeal).
(v) The Appellant’s letter dated 16th July, 2013 (Exhibit C7 also tendered as Exhibit D5) was delivered on the same day to the Respondent and one Florence Ekpo an employee of the Respondent acknowledged receipt of the aforesaid

letter on the 16th July, 2013. (page 48 of the Record of Appeal)
(vi) The Respondent 2 (two) days after it had received the Appellant’s letter dated 16th July, 2013 precisely on 18th July, 2013 caused the sum of N33,000,000.00 (Thirty-three Million Naira) only to be paid into the Appellant’s Bank Account by Mrs. Irene Aniyom in utter disregard of the Appellant’s express directives in Exhibit D5 which was also tendered as Exhibit C7 during trial of the suit leading to the present Appeal. (page 14 of the Record of Appeal).

He submitted that the learned trial judge in her judgment of 3rd March 2016, affirmed the aforesaid facts in the following words:
It is not in doubt that both parties had a financial transaction which gave rise to a loan in facility which was secured by a Certificate of Occupancy –Exhibit C10. It is a common ground that whereas the Claimant offered to settle the entire amount with the sum of N32,000,000.00; there was a Counter-offer of N33,000,000.00 by the Defendant which must be complied with on or before the 19/7/2013 a letter. It is also not in doubt that on the 16/7/2013, a letter was sent to the

Claimant cancelling the counter-offer and it is not in dispute that before the 19/7/2013 the Claimant paid the sum of N33,000,000.00 into the account of the Defendant on the 18/7/2013. (page 104 of the Record of Appeal)

He submitted that the principal facts upon which the Respondent grounded the suit would be found in paragraphs13-16 of the Statement of Claim and the Appellant’s responses to those paragraphs are as contained in paragraphs 8,9, and 10 of the Statement of Defence.

However, that in spite of the fact that the Appellant averred to the fact that it had suspended its counter offer vide the letter dated 16th July, 2013, Exhibit D5 (C7) and that the Respondent had notice of the suspension of its counter offer, the Respondent neglected to file any Reply to the aforesaid Statement of Defence and did not lead evidence denying its receipt of Exhibit D5 (C7) at any point in time.
Furthermore, said counsel, the Court below in its judgment held as follows:
It is not in doubt that the letter was received by Florence Ekpo (page105 of the Record of Appeal).

Consequently, that it is beyond dispute that as at the 16th of July, 2013

when the Respondent received Exhibit D5 (C7), there was in fact no counter offer upon which the Respondent could rely upon to alter its position financially.

The Appellant, having regard to the preceding facts, says that the Court below was in error when it stated on its judgment of 3rd March, 2016 that:
Now, the critical issue is whether after the counter offer, with a specified time to comply, can the Defendant cancel same on the ground of lack of authority? page 104 of the Record of Appeal)

He submitted that none of the parties contested the capacity of the Appellant to suspend its counteroffer as stated in Exhibit D5 (C7). He submitted that the above mentioned misconception of the real issue in dispute between the parties by the learned trial judge, resulted in the Court setting up a different case for the Respondent, this he said has engendered a grave miscarriage of justice. He referred to the case ofA. I. B. LIMITED & ORS v. FEMI ASAOLU (2005) ALL FWLR (Pt. 270) page 2092 @ 2119 for the view that Courts of law are bound to adjudicate only upon issues contested by the parties to the suit.

He submitted that the trial Court wrongly

applied the case ofIGA & ORS v. AMAKIRI & ORS (1976) 11 SC 11-12 to the facts of the case. He argued that the facts of IGA & ORS v. AMAKIRI & ORS (supra) are materially different from the facts of the instant case.
He submitted that as at the 16th of July, 2013, when the Respondent acknowledged receipt of Exhibit D5 (C7), there was in fact no counter offer upon which the Respondent could rely upon to alter its position.

He referred to the case of EMEKA v. OKADIGBO (2012) AFWLR (Pt. 651) 1426 @ 1455 that a case is authority for what it actually decided. And that the learned trial judge was wrong to have held on page 105 to 106 of the Records that:
It is not logical that the said agreement was cancelled on the ground of lack of authority when it was done by the Bank through the department on Credit Facility. An outsider is not in the routine of the departments. Therefore it is my view that the bank is answerable to the Act of its servants who by their conducts caused the Claimant to dispose of its property in Abuja to settle the debt before 19th July, 2013 and by the authority of IGA & ORS v. AMAKIRI & ORS (1976) II SC

11-12. (page 105 to 106 of the Record of Appeal).

He submitted that the aforesaid finding of the learned trial judge runs contrary to the evidence on record and the finding of fact that:
The Letter of 16/7/2013 to the Claimant was to the effect that the bank’s Management has decided to present the matter to the Board of Directors and this letter supersedes the letter of 15th July, 2013. It is not in doubt that the letter was received by Florence Ekpo. (page 105 of the Record of Appeal).

He submitted that from the above finding of fact, the trial Court accepted the Appellant’s evidence that the Respondent had prior notice of the suspension of the Appellant’s earlier counter-offer, vide Exhibit D5 (C7). That, consequently, it cannot be correct as found by the learned trial judge that the conduct of the Appellant’s servants caused the Respondent to dispose of his property at Abuja in order to settle its indebtedness to the Appellant before the 19th of July, 2013.

He further submitted that the finding of the learned trial judge that Exhibit D5 (C7) was not written in good faith is without any factual or legal foundation

having regard to the aforesaid express findings of the lower Court.

He referred to the provision of Sections 63and 66 of the Companies and Allied Matters Act, Cap. C 20 LFN 2004 and submitted that the finding by the trial Court to the effect that the Board of Directors of the Appellant’s company is bound by the action of its staff is not the correct position of the law. That by a community reading of Sections 63 (1) and 66 (1) of Companies and Allied Matters Act (CAMA),it is clear that the authority of the Board of Directors supercedes that of management staff of a company.

He submitted that the learned trial judge was in error when he held at page 106 of the Record that:
Therefore there is no basis for me to concede to the submission of the defence Counsel that the Board of Directors controls the workings in the company. I say so because the Board of Directors work through the management staff of the company and the Board is bound by the action of the staff.

He submitted that the aforesaid finding of the learned trial judge is not in tandem with the express provision of Sections 63 (1) and 66 (1) of the Companies and Allied Matters Act on the matter.

He further submitted that there is no iota of evidence to support the learned trial judge’s holding at page 105 of the Records that:
A look at paragraph 15 and 16 of the Statement on Oath of CW1, it was obvious that the Claimant acted on the counter offer and disposed of his property at Abuja and paid off the sum as contained in the Counter-offer.

Indeed, that the Respondent failed to supply any particulars as to the property allegedly sold in Abuja, the date of the alleged sale and/or the amount for which the property was allegedly sold.

On the other hand, said Counsel, the evidence before the lower Court as elicited from the sole witness of the Respondent under cross-examination on 26th June, 2014 was as follows:
It is correct that the money I used to pay the Defendant was money transferred from the account of Irene Aniyom to the Defendant. (page 93 of Record of Appeal)

Learned Counsel for the Appellant contends that the lower Court fell into grave error when it held that the money paid into the Appellant’s account was the proceeds realized from the sale of the Respondent’s property situate

at Abuja.
He noted that the lower Court unwittingly indulged in speculation contrary to the facts on record. He referred to the case of NNPC v. FAMFA OIL LIMITED (2003) AFWLR (Pt. 155) page 794 @ 812 to say that “Courts of law do not act on speculation but on proved facts”.
He submitted that the aforesaid finding of the learned trial judge is perverse in view of the fact that there was no evidence on record to sustain the alleged disposal of the Respondent’s property in Abuja.
Learned Counsel for the Appellant referred to the case of ANIEKWE v. NWEKE (2014) ALL FWLR (Pt. 739) @ 1154 and applied the caveat and warning expressed by the Supreme Court in that case to conclude that the judgment of the lower Court did not demonstrate a clear understanding of the issues raised by the parties in their pleadings and therefore misconceived and misapprehended same and arrived at a wrong decision. He urged us to resolve the sole issue in favour of the Appellant.
Learned Counsel for the Respondent also submitted that the following facts were established during the trial.
(i) An invitation was extended by the Board Credit Committee

of the Appellant Bank to the Managing Director of the Respondent vide a letter dated 12th July, 2013 (Exhibit 5) to attend a meeting on Monday 15th July, 2013.(page22 of the Record of Appeal).
(ii) After attending the meeting aforesaid, the Respondent by a letter dated 15th July, 2013 offered to pay the Appellant the sum of N32,000,000.00 (Thirty-two Million Naira) only on or before Friday, 19th July,2013 as full and final payment of its debt to the Appellant as per Exhibit C4.(page 23 of the Record of Appeal).
(iii) The Board Credit Committee of the Appellant Bank by a letter dated 15th July, 2013 (Exhibit C) addressed to the Respondent made a counter offer proposing that the Respondent should pay the sum of N33,000,000.00 (Thirty-three Million Naira) only on or before the 19th July, 2013 in full and final payment of the Respondentâs debt. (page 21 of the Record of Appeal).
(iv) Subsequently, the Appellant by a letter dated 16th July,2013 (Exhibit C7) which was also tendered as Exhibit D5 in the trial Court suspended its earlier counteroffer pending the approval of the Board of Directors of the Appellant. (page 20 of the Record of

Appeal).
(v) On 18th July, 2013, the Respondent caused the sum of N33,000,000.00 (Thirty-three Million Naira) only to be paid into the Appellant’s bank account. (page 14 of the Record of Appeal).
(vi) The initial credit facility contract between the parties herein was for fixed period of 90days from September 30, 2011 with 3% interest rate per month. (at pages 43-43 of the Record of Appeal).
(vii) The renewed credit facility contract between the parties herein was for afixed period of 90 days from March 30, 2012 with 3% interest rate per month. (at pages 18-19 of the Record of Appeal).
(viii) As at 30th June, 2012 when the renewed facility expired, the amount outstanding against the Respondent was N32,905,261.21. (at page 97 of the Record of Appeal).

He repeated the claims of the Respondent and submitted that the Respondent’s claims were grounded particularly on facts pleaded in paragraphs 24-26 of the Statement of Claim. And that the Appellants reacted to the aforesaid paragraphs in paragraphs 17-19 of the Statement of Defence. He submitted that the Defendant/Appellant in paragraph 19 of its Statement of Defence pleaded

thus:
The Defendant admits paragraph 26 of the Statement of Claim only to the extent that the amount paid by the Claimant is in partial discharge of its indebtedness to the Defendant Bank as the Claimant neglected to pay off the facility granted to it within the time stipulated by the contract between the parties herein, thus, accumulating interest upon the amount borrowed. (page 31 of the Record of Appeal).

Also, that in paragraph 18 of the Defendant’s sole witness Written Statement of Oath, the DW1 deposed thus in his evidence in chief:
The amount of money paid so far by the Claimant to the Bank is in partial discharge of its indebtedness to the Defendant Bank as the Claimant neglected to completely pay off the facility granted to it within the time stipulated by the contract between the parties herein, thus accumulating the interest upon the amount borrowed. (page 38 of the Record of Appeal)

Learned Counsel for the Respondent submitted that it is obvious from the above facts that the Appellant was still charging interest on the facility granted to the Respondent after the stipulated time of the contract mutually entered between the

parties. He submitted that in the course of cross-examination of DW1, the following facts emerged:
The facility was renewed on the 30/3/2012 as per Exhibit D3, Exhibit D1 is the initial facility granted the Claimant. The tenure of the facility was for 90 days as per Exhibit D1. The tenure of Exhibit D3 was for three months, yes, the facility in D3 expired on30/6/2012. As at 30/6/2012, the amount standing against the Claimant was brought forward as at 1st October, 2012 to the tune of N32,905,261.21. N33,000,000.00 was paid into the account of the Defendant by the Claimant, yes, we wrote a letter as per Exhibit D7 requesting the sum of N5 Million from the Claimant which is a concession sum. (page 97 of the Record of Appeal).

Also, said Respondent’s Counsel, the Respondent Claimant as sole witness in the course of cross-examination witnessed thus:
The tenure of the facility is for 90days. I was not able to repay the debt within 90 days, the stipulated time.

It is obvious from the above evidence, said Counsel, that the total amount due from the Respondent to the Appellant from the credit facility granted to the Respondent by the Appellant

as at the date the contract for the facility expired was N32,905,261.21. Hence, after the payment of the sum of N33,000,000.00 to the Appellant, the Appellant was no longer entitled to demand any further payment from the Respondent on the basis of the loan facility contract between them.

The Respondent having regard to the above evidence before the trial Court, submits that the conclusion of the learned trial judge that the Claimant was not indebted to the Defendant can be justified in law.

He added that the Respondent rightly led evidence on the issue of accumulation of interest which was pleaded by the Appellant in its Statement of Defence.

On this, learned Counsel for the Respondent referred to the cases of DOKUBO v. OMONI (1999) 70 LRCN 1769 @ 1774; AMOS BAMGBOYE &ORS v. RAIMI OLAREWAJU (1991) 3 LRCN 897;(1991) 4 NWLR (Pt. 184) 132 @ 155 and EMEGOKWUE v. OKADIGBO (1973) 4 SC 113 that a plaintiff is entitled to lead evidence on any point raised in the Defendant’s pleading.

He submitted that the Appellant was not entitled in law to post any other amount as interest accruable from the credit facility granted to the Respondent

after30th June, 2012 when the renewed credit facility granted to the Respondent expired. The agreed interest rate will only be applicable from the date the agreement came into effect up to the date when the facility expired, as the indebtedness cannot be treated as a loan facility after the expiry date. He referred to the case of INTEGRATED DIMENSIONAL SYSTEMS LTD. & ORS v. AFRICAN INTERCONTINENTAL BANK LTD. (2002) 14 W.R.N149 @page 153 where the Court of Appeal held thus:
The rate of interest chargeable should be 19% per annum single interest and that interest should be from the date the agreement came into effect up to the date the facility expired on 30/11/87.

He added that the Court of Appeal held further in the case of INTERGRATED DIMENSIONAL SYSTEMS LTD & ORS v. AFRICAN INTERCONTINENTAL BANK LTD. (supra) at Page 151 thus:
Since the parties had set out details of the terms that would govern the two facilities, they have by implication made it clear that the transaction was NOT to be governed by the general rules of banking practice relating to charging interest in an overdraft. See BARCLAYS BANK OF NIG. LTD. v. ABUBAKAR (1977) 10 SC

13, Pagets Law of Banking, 8th ed. Page 134.

He submitted that the Appellant was not entitled to charge the Respondent any purported accumulated interest after the expiry date of the facility which from the contract between the parties was 30/6/2012. He again referred to the Court of Appeal decision in INTERGRATED DIMENSIONAL SYSTEMS LTD. & ORS v. INTERCONTINENTAL BANK LTD. (supra) wherein the Court held relying on the Supreme Court decision in AIROE CONSTRUCTION AND CIVIL ENGINEERING CO. LTD v. UNIBEN (1985) 1 NWLR (Pt. 2) 287 thus:
This is because what the Respondent was entitled to after the debt became due is damaged for breach.

Also, that in the case of AFRICAN INTERNATIONAL BANK LTD. v. INTERGRATED DIMENSIONAL SYSTEMS LTD. & ORS (2012) 8 KLR 1635 @ page 1675 the Supreme Court per ARIWOOLA JSC held thus:
Exhibits T1, T2 and W does not envisage or contemplate that the same interest being paid on the facilities will continue after the expiry date. Parties are bound by the contract they voluntarily entered into and cannot act outside the terms and conditions contained in the said contract. In the same vein, neither of the

parties to a contract can alter nor read into a written agreement a term which is not embodied init.

Furthermore, said Counsel, the learned Supreme Court justice in the case of AFRICAN INTERNATIONAL BANK LTD. v. INTERGRATED DIMENSIONAL SYSTEMS LTD& ORS (supra) admirably held thus:
The following distinctive features of Exhibits E, T1, T2 and W were submitted by the Respondents and I agree entirely. In Exhibit T1, T2 and W, the expiry dates are fixed and whether or not demand had earlier been made, the contract expires on the due date, thus making failure to repay a breach of contract. See IJALE v. A.G LEVENTIS (1951) ALL NLR 762 @ 771.

The Respondent submitted that the terms of Exhibits D1 and D3 are explicit as to the duration of the first facility and the renewed facility. The renewed facility expired on 30/6/2012. Exhibit D3 contained the duration of the contract and the obligation of the Respondent as to payment of interest being accessories on the principal. He contends that in the absence of any express provision, there is room to infer obligation to pay interest until the principal is fully paid, just as there can be no application

of any custom to extend the frontiers of the contract as negotiated by the parties.

He submitted that since the outstanding liability of the Respondent as at 1st October, 2012 being the next transaction date after the expiration of the loan facility on 30/6/2012 (as per Exhibit C8) stood at N32,905,261.21, any further calculation and accumulation of interest in the transaction giving rise to this action of the Respondent will amount to an unwarranted and unjustifiable action which the Respondent as a business concern cannot be expected to take likely.

He submitted that after the payment of the sum of N33,000,000.00 only on account of the credit facility contract between the parties herein, the conclusion of the learned trial judge that he Respondent was not indebted to the Appellant can be justified in law, notwithstanding the reasons given by the learned trial judge. This is because of the settled principle of law that where a judgment appealed against is right but the reason for the judgment is wrong, the appellate Court will not interfere.
He referred to the cases of NDAYAKO v. JIKANTORO (2004) 28 WRN 1 @ 14; ABAYE v. OFILI (1986) 1 NWLR

(Pt.15) 134 @ 179 (1986) 1 NSCC 94; MAYA v. MSHELIZH(2004) 19 WRN 128 @ 137; IBULUYA & ORS v. DIKIBO & ORS (2011) 191 LRCN 129 @ 132; UNITED BANK FOR AFRICA LTD. & ANOR v. MRS. NGOZI ACHORU (1990) 6 NWLR (Pt. 156) 254@ 270 (1990) 10 SCNJ 17 @ 26 and submitted that arriving at the right decision based on a wrong reason or reasons will not lead an appellate Court in faulting the right decision.

Learned Counsel for the Respondent concluded that a community examination of Exhibits C8,D1 and D3 as well as the evidence before the Court below, the conclusion of the learned trial judge that the Respondent was not indebted to the Appellant is valid and correct, notwithstanding the reasons given by the learned trial judge.

He urged us to resolve the issue in favour of the Respondent.

Learned Counsel for the Appellant raised three, perhaps four points in his Reply Brief in response to the Respondent’s Argument.
1. That the foundation of the Respondent’s case would be found in paragraphs 16-20 of its Statement of Claim. From the facts pleaded therein, the Respondent’s case simply put was that it relied on the

Appellant’s representation as contained in Exhibit D4 and paid the sum of Thirty-three Million Naira into the Appellant’s account.
2. That to interpret the words used in paragraph 18 of the Statement of Defence of the Appellant to mean Appellant admitted that it charged the Respondent excessive interest would be against common sense and logic.
3. That the Respondent shall not be entitled at the hearing of this appeal to contend that the lower Court’s decision be affirmed upon another ground, without leave of Court in compliance with the provision of Order 9 Rule 2 of the Court of Appeal Rules 2016. He referred to the case of OKWUSIDI v. LADOKE AKINTOLA UNIVERSITY (2012) AFWLR (Pt.632) page 1774.
4. That a case is authority for what it decides. EMEKA v. OKADIGBO(2012) AFWLR (Pt. 651) page 1426 and that the cases of BAMGBOYE & ORS v. OLAREWAJU (supra); INTERGRATED DIMENSIONAL SYSTEMSLTD. & ORS v. AFRICAN INTERCONTINENTAL BANK LTD. (supra); IJALE v. A.G LEVENTIS (supra); NDAYAKO v. JIKANTORO (supra); IBULUYA & ORS v. DIKIBO & ORS (supra); DOKUBO v. OMONI (supra) are not applicable to the facts and circumstances of

this case.

DETERMINATION OF THE SOLE ISSUE
There is no gainsaying as pointed out by the learned counsel for the Appellant that the Respondent’s Claimant claim in this case was/is grounded on the averments in paragraphs 13-20 of the Respondent’s Statement of Claim, reproduced here under:
13. The Claimant subsequently communicated this proposal in writing on 15/7/2013 on the Defendant. The said letter is hereby pleaded.
14. The Defendant reacted by its letter dated 15/7/2013 wherein it made a counter offer requesting the Claimant to pay the sum of Thirty-three Million Naira (N33,000,000.00) only, on or before 19/7/2013,as full and final payment of its entire indebtedness to the Defendant. The said letter is hereby pleaded.
15. The Claimant avers that its Managing Director called the Chairman of the Defendant’s Board Credit Committee on the basis of the counteroffer and he told him to try and pay the amount on the counter offer as scheduled and the Claimant accepted.
16. The Claimant avers that based on this agreement it immediately disposed of his landed property in Abuja to pay off the debt.
17. The Claimant

also avers that after disposing its property upon his return to Calabar he was shown a letter dated16/7/2013, from the Defendant’s staff to present this concluded transaction to its Board of Directors. The letter is hereby pleaded.
18. The Claimant avers that when the transaction was concluded, its Managing Director had requested for the account details of the Defendant to enable the Claimant to transfer the agreed amount into the Defendant’s account.
19. That despite the letter of 16/7/2013, the account
details of the Defendant was communicated to the Claimant and the agreed amount was paid into the Defendant’s account. The transfer receipt is hereby pleaded.

The Claimant avers that consequent upon the above, it instructed its solicitors to write to the Defendant to demand the return of the title deed used to secure the loan facility. The letter dated 18/7/2013, is hereby pleaded.

The relevant pleadings of the Appellant from the case stated by the parties are paragraphs 8-10 and 17-19 of the Statement of Defence, reproduced hereunder:

8.The Defendant admits paragraph 14 of the Statement of Claim only to

the extent that the Credit Committee of the Defendant’s Board of Directors did issue a Counter offer to the Claimant’s offer conveyed by letter dated 15th July, 2013, but without the prior approval of the Defendant’s Board of Directors, purporting to accept N33,000,000.00 (Thirty-three Million Naira) only in full and final settlement of the Claimant’s indebtedness, provided the aforesaid sum was paid on or before Friday, the 19th of July, 2013.
9. The Defendant in further answer to paragraph 14 of the Statement of Claim states that:
(i) The aforesaid Counter offer of the Credit
Committee was received on behalf of the Claimant by one Florence Ekpo. The Defendant’s acknowledgment copy of the aforesaid letter is hereby pleaded.
(ii) When the aforesaid letter of the Credit Committee of the Defendant’s Board of Directors was brought to the attention of the Company Secretary/Legal Adviser of the Bank, he promptly drew the attention of the Head of the Credit Committee to the fact that the Counter offer was issued without the prior approval of the Board of Directors of the Bank.

(iii) When the Credit

Committee of the Defendant’s Board of Directors realized the above mentioned procedural error, it promptly informed the Claimant by letter dated 16th July, 2013, of its decision to present the Credit Committee’s Counter offer of15th July,2013 to the Board of Directors, of Ekondo Microfinance Bank Limited for the consideration of the Bank’s Board of Directors. The Defendant’s acknowledgment copy of the aforesaid letter is hereby pleaded.
(iv) The contents of the Defendant’s letter dated 16thJuly, 2013 expressly stated that the Bank would revert to the Claimant on its counter offer after presenting the matter for the decision of its Board of Directors.
(v) The Defendant’s letter of 16th July, 2013 was received on behalf of the Claimant by one Florence Ekpo.
10. Paragraph 15 of the Statement of Claim is denied. The Claimant despite having received the Defendant’s letter dated 16th July, 2013, suspending its Counteroffer of 15th July,2013,instructed Mrs Irene Aniyom to transfer the sum of N33,000,000.00 (Thirty-three Million Naira) only on 18th July,2013 into the Defendant’s Bank account domiciled with

First Bank of Nigeria Plc., Calabar Main Branch, Calabar Road, Calabar, using the Defendant’s Bank account number supplied on a previous occasion when the Claimant had promised to extinguish its indebtedness to the Defendant.
17. Defendant denies paragraph 24 of the Statement of Claim. Defendant avers that the Claimant is still indebted to the Defendant in the sum of N9,236,613.33 (Nine Million, Two Hundred and Thirty-six Thousand, Six Hundred and Thirteen Naira, Thirty-three Kobo) only as at 19th of July,2013.

Paragraph 25 of the Statement of Claim is denied. The Defendant has a lien over and in respect of the property covered by Certificate of Occupancy No. CA/6/2004 until the Claimant’s debt is fully extinguished.
The Defendant admits paragraph 26 of the Statement of Claim only to the extent that the amount paid by the Claimant is in partial discharge of its indebtedness to the Defendant Bank as the Claimant neglected to pay off the facility granted to it within the time stipulated by the contract between the parties herein, thus accumulating interest upon the amount borrowed.

For the Respondent therefore as

Claimant, the gravamen of its case is that it relied on the Appellant’s representation as contained in Exhibit D4 and paid the sum of Thirty-three Million Naira (N33,000,000.00) into the Appellant’s account, even when the Respondent does not in fact deny the existence of the Appellant’s Exhibit D5 (C7) which suspended and or repudiated the counter offer contained in Exhibit D4.

The Appellant on the other hand insisted that since the Respondent actually received the Exhibit D5 (C7) which cancelled its counter offer in Exhibit D4, there could be no basis for the Respondent’s payment of the sum of Thirty-three Million Naira as final settlement of its indebtedness to the Appellant.

In the circumstance, it seems to me that the attempt by the Respondent to now argue in this Court that the conclusion of the learned trial judge that the Respondent is no longer indebted to the Appellant is nevertheless justified cannot be entertained and cannot stand.
The reason for the above is not just because the Respondent in this appeal did not comply with the provision of Order 9 Rule 2 of the Court of Appeal Rules 2016 by filing a Notice of

Intention to affirm the judgment of the Court on other grounds. It is more because the case of the parties was not based on any suggestion of the Appellant charging excessive interest outside of the agreement reached by the parties on the agreed loan facility.
In this respect, and contrary to the suggestion of the learned Counsel for the Respondent, I could not see anything in paragraphs 17-19 of the Defendant’s Appellant’s Statement of Defence or in the evidence of its witness tending to show that the remaining indebtedness which the Appellant is now demanding from the Respondent was based on interest calculated after the completion of the payment of the agreed sum.
In other words, the issue of the Appellant calculating and or demanding any excessive interest or post payment interest did not arise and was not part of the case of the parties at all. Moreover, the Appellant did not counter-claim.
This in my opinion is one reason why the cases of DOKUBO v. OMONI (supra); BAMGBOYE & ORS v. OLAREWAJU (supra); EMEGOKWUE v. OKADIGBO (supra); INTERGRATED DIMENSIONAL SYSTEMS LTD. & ORS v. INTERCONTINENTAL BANK LTD. (supra);

AFRICAN INTERNATIONAL BANK LTD. v. INTEGRATED DIMENSIONAL SYSTEMS LTD. & ORS amongst others cited and relied on by the learned Counsel for the Respondents are distinguishable and not applicable to the facts and circumstances of this case.
The inference that the learned Counsel for the Respondent sought to derive from the Defendant’s/Appellant’s averment in paragraph 18 perhaps 19 of the Statement of Defence and the evidence on oath of the Appellant’s sole witness DW1 that the Appellant was still charging interest on the facility granted to the Respondent after the stipulated time on the contract mutually entered into by the parties is speculative.
The truth of the matter here is that the Respondent was wrong to have acted on Exhibit D4 after receiving ExhibitD5 (C7) which countermanded Exhibit D4 from the Appellant. The simple legal scenario which emerges in this case is that a counter offer is an offer. B.C.C. PLC. v. SKY INSPECTION (NIG.) LTD. (2002) 17 NWLR (Pt. 795) 86. And, an offer or counter offer as in Exhibit D4 may be revoked at any time before notification of acceptance. And, when an offeree, including a counter offeree

expressly rejects an offer made to him, it becomes effective when notice of rejection actually reaches the offeror. See MAJOR GENERAL GEORGE INNIH (RTD.) & ORS v. FERADO AGRO AND CONSORTIUM LTD. (1990) 5NWLR (Pt. 152) 604.

Finally, the reasoning of the learned trial judge for granting the Respondent’s reliefs on the ground that the Appellant is stopped from denying Exhibit D4 as a representation to the Respondent on the basis that “….the Board of Directors work through the Management Staff of the company and the Board is bound by the action of the staff…..” depicts a misunderstanding of the facts of the case.

Both Exhibits D4 and D5 represent the act of Management of the Appellant as well as the Board of Directors; therefore there could be no invocation of the concept of vicarious liability when the Respondent admitted the receipt of Exhibit D5 (C7).

In the circumstance, the sole issue in this appeal is resolved in favour of the Appellant.
This appeal is meritorious and it is allowed.
The judgment and orders of the Hon. Justice Adie Attoe-Onyebueke delivered on 3/3/2016 in Suit No. HC/261/2013 are

hereby set aside.
The parties to the appeal are to bear their respective costs.

HAMMA AKAWU BARKA, J.C.A.: I have been obliged a copy o the judgment just delivered by my Lord MOJEED ADEKUNLE OWOADE, J.C.A, with which I am in agreement.
The reasoning and conclusion is agreeable to me to the inevitable conclusion that the appeal has merit and thereby allow the appeal. I hereby join my Lord in setting aside the judgment and orders made by the lower Court in HC/261/2013 on the 3rd of March, 2016. I make no order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had opportunity of reading in draft the lead judgment of my learned brother, Mojeed A. Owoade, JCA just delivered. I agree entirely with the reasoning and conclusion that the appeal is meritorious and should be allowed. I too allow the appeal and set aside the judgment of the lower Court.

Parties are to bear their respective costs.

Appearances:

O. E. EKONG, ESQ.

For Appellant(s)

A. ANNAH, ESQ. For Respondent(s)