Mr. Emma Bosa V. Zubairu Adamu Dan Yakasai (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A (Delivering the Leading Judgment)

The facts leading to this case stemmed from the offer made by the Respondent on 26/10/2005 to the defunct Bank of the North Nigeria Limited, now Unity Bank Plc for purchase of a property of the said Bank situated at Plot A Mohammed B. Haladu Road, Sharada, Phase III, Kano, which it marketed for sale. The Respondent offered to buy the said property at the sum of N13,500,000.00 which, he, proposed to be liquidated by three instalments.

A Bank Draft dated 26/10/05 covering the sum of N3,500,000.00 was forwarded along with the said letter. The offer was accepted by the Bank through its letter dated the same 26/10/2005 which was signed on its behalf by the Appellant in this appeal, its then AGM (Property). However, on the 1st November, 2005, the said Bank addressed a letter to the Respondent’s Solicitors expressing certain difficulties it was experiencing regarding acceptance of his first payment of N3.5 million.

By the said letter, the said Bank Draft for the sum of N3.5 million was returned to the Respondent. Following that, the Respondent wrote a letter dated 9/11/2005 and partly captioned “Attempted Breach of Contract” to the Bank via the Appellant as it Assistant General Manager.

The said letter was followed up by the Respondent’s letters dated 23/11/2005 and two Bank Drafts dated 22/11/05 and 23/12/05 covering the sum of N5 million respectively. By the said letter dated 23/12/2005, three copies of Deed of Assignment were forwarded to the Bank for its perusal and execution. Apparently, there were discussions between the Respondent’s Solicitor and the Bank’s AGM, i.e., Engr. Emma Bosa, the Appellant, and following which the letter dated the 30th December, 2005 was written by the Bank to the Appellant returning the said two Bank Drafts.

However, and surprisingly, the said Assistant General Manager of the Bank, on that same 30/12/2005 he returned the two Bank Drafts, wrote an acknowledgment of his indebtedness to the Respondent and his undertaking to pay to the Respondent the said sum of N1.5 million representing the alleged sum paid by the Respondent to his Solicitors for preparation of the said Deed of Assignment which was also returned by the Bank.

It is interesting to note that the said Acknowledgment/Undertaking dated 30/12/05 forwarded to the Respondent by the Appellant was written in the name and personal capacity of the Appellant. The Respondent never mentioned therein that he was representing the Bank or acknowledging and undertaking to repay the same on behalf of the said Bank of the North. The Respondent acknowledged therein that he was personally indebted to the Respondent in the sum of N1, 500,000.00 and undertook to repay the said sum within a period of two weeks from the date therein. The two weeks certainly lapsed without the Respondent honouring his undertaking. He, then, wrote a letter dated 16/1/2006 to the Respondent suggesting if the Respondent wished to claim the money, he should bring to him, his formal request to the Bank to enable him press the matter.

Then, on 23/1/2006 the Appellant wrote a letter to the Solicitor of the Respondent referring to the discussion he had with him on 13/1/2006 and then, advised that if his client was still desirous of purchasing the said property, he should present a fresh bid for consideration by the consolidated Unity Bank Plc. He mentioned therein that his client had informed him, he had already recovered the said sum of N1.5 million. The Respondent’s Solicitors replied him by a letter dated 16/1/2006 requesting for a formal letter from the Bank indicating its interest to conclude the contract, with a warning that if the Bank failed to write the formal letter, their client’s said sum of N1.5 million which he, the Appellant, had undertaken to refund, should be paid to them.

Further, on 8/2/2006, the Respondent via his Solicitors wrote a final Demand letter to the Appellant in respect of the said sum of N1.5 million he had personally undertaken to pay. The Appellant, obviously, failed to pay, hence the action instituted by the Respondent at the lower Court against the Appellant in suit No. K/160/2006 under the undefended list special procedure by the Writ of Summons dated the 2nd March, 2006 claiming thus:

“1. The sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) only being the amount the defendant undertook to pay the Plaintiff.

2. 10% Court interest rate from the date of judgment till the whole money is liquidated;
3. The cost of filing this action.”

The claim was supported by an affidavit of five paragraphs with several documentary evidence attached thereto as Exhibits “A” to “Q”. The said affidavit was deposed to by one Martha Ohaka, the Litigation Secretary in the chambers of Mamman Lawan & Co (Yusufari Chambers). The suit was placed on the Undefended List by the order of the lower Court made on the 20th April, 2006 and, was fixed for hearing on the 25th May, 2006. Then, on the 16th May, 2006, the Appellant filed his Notice of Intention to Defend dated 12/5/2006 together with an affidavit of four paragraphs sworn to by one Patrick Chineke, the Litigation Officer in the Law Firm of Nelson Uzuegbu & Co, Counsel for the Appellant.

The case was eventually heard on the 6th July, 2006 but the ruling was not delivered until the 2nd November, 2006, the date fixed by the Court for the same. The lower Court held that the Appellant did not raise any defence on the merit that could warrant transferring the case to the general cause list. It, then, entered judgment in favour of the Plaintiff, i.e., the Respondent, in the sum of N1.5 Million and the cost of the action. As a result, the Respondent, now the Appellant, filed the present appeal which he based on nine grounds of appeal. From the nine grounds of appeal, learned Counsel for the Appellant, Nelson Uzuegbu Esq; who settled the Appellant’s Brief of Argument framed seven issues for consideration by this Court which read:

“1. Whether the trial Judge erred in law when he held that the averment in the affidavit in support of the notice of intention to defend that the Contract is subject to Board approval, did not disclose a defence on the merit, as it was not in writing. This is distilled from ground 2 of the notice of appeal.

2. Whether the trial Court was right in holding that the Appellant’s liability arose solely from the letter of undertaking (Annexure N) without considering the contract that gave rise to the claim. This issue flows from ground 3 of the notice of appeal.
3. Whether the averment that the Appellant was coerced into signing Annexure N does not amount to a defence on the merit. This is distilled from ground 4.
4. Whether the learned trial Judge erred in law by holding that the presumption that the Appellant read Annexure N could be rebutted by evidence in course of trial. Distilled from ground 5.
5. Whether the allegation that Respondent had already received his money back through his solicitors was not a defence on the merit.

Distilled from ground 6 of the notice of appeal.