Alhaji Banmidele Lawal Vs Union Bank Of (Nig.) Plc & Ors (1995)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, JSC 

This is an appeal from the judgment of the Court of Appeal, Kaduna Division in which the judgment and order of the High Court of Kwara State (Gbadeyan, J.) in favour of the plaintiff were set aside. The plaintiff who was dissatisfied with the judgment has appealed to this court on six grounds of appeal. From the grounds of appeal, the following three issues for determination were formulated:-

“(i) Whether the Court of Appeal was right in disturbing the finding of the trial court that the 1st respondent accepted the arrangement contained in Exhibit 14:

(ii) Whether the Court of Appeal was right in holding that the trial court did not properly apply the doctrine of estoppel and waiver to the facts of the case;

(iii) Whether the Court of Appeal was right in reversing the decision of the trial court on, whether in the circumstances of the case, the appellant proved his case on a balance of probability in view of the fact that the 1st respondent did not adduce any evidence.”

The plaintiff who is the appellant in this court claimed as per his amended statement of claim against the defendants jointly and severally as follows:-

“1. A declaration that the plaintiff was discharged and/or relieved of all liabilities whatsoever to the 2nd defendant for any debt howsoever in relation to the debt owed it by the 3rd defendant by reason of an agreement dated 3/7/87.

2. A declaration that the parties having acceded to, acted upon, and implemented the said agreement of 3/7/87, are estoppel in law and equity from going back on the said agreement as they are deemed to have waived their rights.
3. An order directing the immediate release of the plaintiff’s title documents and properties at numbers 1- 3 Oremeji Idofian Street Ilorin to the plaintiff by the 2nd defendant”

The parties will hereinafter be referred to as appellant and respondents respectively. I will now set out briefly the facts of the case for a proper appreciation of the issues canvassed in the appeal. The appellant and the 2nd respondent were the directors of the 3rd defendant. The appellant was the Managing Director. The 3rd respondent operated a current account with the 1st respondent’s Ilorin Main Branch. The 3rd respondent took a loan/overdraft facility from the 1st respondent and secured it with two legal mortgages one covering properties numbered 1 – 3 Oremeji Idofian Road, Ilorin, belonging to the appellant and the other covering properties numbered 4 to 7 in the same street belonging to 1st respondent (Exhibit 15 and 16).

In addition, the appellant and the 1st respondent each guaranteed the repayment of all loans received from the 1st respondent by the 3rd respondent in two separate guarantees. The one executed by the appellant is Exhibit “17” and that executed by the 2nd respondent is Exhibit “18” By a letter dated 21/3/87 (Exhibit “10”) addressed to the 1st respondent by the 2nd respondent, the latter informed the 1st respondent that he had been assigned the responsibility of liquidating the entire debt owed to it by the 3rd respondent.

The 1st respondent in its reply (Exhibit “6”) demanded from the 2nd respondent a copy of the resolution of the 3rd respondent company to Exhibit “l0”. The appellant in his capacity as the Managing Director of the 3rd respondent wrote to the 1st respondent (Exhibit “9”) and enclosed a copy of the agreement between the appellant and the 2nd respondent (Exhibit “14”) with regard to the assignment of the indebtedness of the 3rd respondent. The 1st respondent by a letter dated 28/9/87 (Exhibit “12”) promptly reacted to Exhibit “9”.

In Exhibit “12”, the 1st respondent expressly rejected the notice of assignment of the 3rd respondent’s indebtedness to it.

In the interval, the 1st respondent successfully obtained judgment against the 2nd and 3rd respondents. In respect of the loan granted to the 3rd respondent (Exhibit “19”). The judgment debt was not satisfied. The 1st respondent took steps to realize the debt and advertised the sale by public auction of the properties mortgaged to it by the appellant’ and the 2nd respondent.

Thereupon, the appellant instituted the action claiming the reliefs set out above: The appellant sought and obtained an order of interlocutory injunction in the trial court restraining the 1st respondent from exercising its power of sale under the deed of legal mortgage (Exhibit “15”) until the determination of the substantive action. As stated earlier in this judgment, the appellant won in the High Court and lost in the court below and being dissatisfied with the decision, appealed to this court. The three issues for determination in the appeal have also been set out above.

At the hearing of the appeal, learned counsel for the appellant adopted and relied on the brief of the appellant filed on 8/5/92, the 1st respondent’s counsel also adopted and relied on the 1st respondent’s briefs filed on 9/6/92. The 2nd and 3rd respondents filed no briefs of argument and were unrepresented. Mr. Adeleye for the appellant had submitted in the brief of argument that the Court of Appeal was wrong in disturbing the findings of the trial court; that all the parties including the 1st respondent accepted Exhibit “14” and acted upon it. It was also argued that on a proper construction of Exhibit “6,” the 1st respondent impliedly accepted the assignment contained in Exhibit “14” and the court below was therefore wrong in treating Exhibits “14” and “6” as offer and acceptance. It was the contention of the learned appellant’s counsel that the parties acted on Exhibit “14” and changed their positions when the appellant started liquidating the debt owed by the 3rd respondent to the Societe Generale Bank Nig. Ltd. and 2nd respondent, in the same manner, started paying the debt of the 3rd respondent to the 1st respondent coupled with the action filed by the 1st respondent against the 2nd and 3rd respondents which resulted in Exhibit “19”.