⦿ CASE SUMMARY OF:
Union Bank Of Nigeria Plc v. Chief James J.A. Akinrinmade (1999) – CA
by PipAr Chima
Court of Appeal
⦿ NOTABLE DICTA
* INTERFERING WITH FINDINGS OF FACT
I agree with the law that an appellate court should not interfere with the findings of fact by a trial court once the findings are based on the evidence upon the pleading of the parties. The appellate court can however interfere where the trial court failed to inter alia make findings or arrived at inconsistent findings on a crucial issue raised by the parties. – Onnoghen JCA. Union Bank v. Akinrinmade (1999)
* DOCUMENT SPEAKS FOR ITSELF
It is trite that a document speaks for itself. – Onnoghen JCA. Union Bank v. Akinrinmade (1999)
* FACT ADMITTED WHERE NO DENIAL
It is still the law that where a defendant fails to deny specifically an allegation of fact in the Statement of Claim and a denial cannot be reasonably inferred from the defendant’s pleadings that fact will be taken as admitted and therefore regarded as established at the hearing without further proof. – Onnoghen JCA. Union Bank v. Akinrinmade (1999)
Union Bank of Nigeria Plc
Chief James J.A. Akinrinmade
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Alhaji Moh’ d Syrajludeen O. Adegboye.
* FOR THE RESPONDENT
– Chief S. F. OJeyemi.
⦿ CASE HISTORY
This is a case of mortgage and guarantor.
The respondent first mortgaged his property to secure a loan for its’ company. Sometime later, the company was incorporated and he seeks to maintain that he cannot be liable for the company’s indebtedness to the Appellant.
The Trial Court gave judgement in respondent’s favour. The Appellant being defendant at the Trial Court has herein appealed.
⦿ ISSUE(S) & RESOLUTION
1. Whether the Respondent has succeeded in proving his case on the balance of probabilities.
RULING: RESOLVED IN APPELLANT’S FAVOUR.
i. The burden of proof rests squarely on the plaintiff who asserts – Sections 136 and 137 of the Evidence Act, 1990. It is my view that the plaintiff has not discharged that duty in the case under consideration. His case lacks cogency. It is therefore my view that issue No. 1 be answered in the negative, the Respondent having failed to prove his case on the balance of probabilities as required by law.
2. Whether the 1st Appellant was entitled to exercise its right to auction the mortgaged properties as per Exhibits 3 and 4.
RULING: RESOLVED IN APPELLANT’S FAVOUR.
i. Exhibits 9, 10 and 11 confirm that Rinso Ranch Ltd. is indebted to 1st appellant and that demands were made both on that company and Respondent as guarantor: It must be remembered that the respondent does not dispute executing exhibits 6 and 7. These exhibits are therefore binding on him and having admitted that the company in which he is the Managing Director and on whose behalf he executed exhibits 6 and 7 is still indebted to 1st appellant it is my considered view that the 1st appellant can and has the legal authority to exercise the power of sale contained in exhibits 3 and 4 following the default of the respondent to discharge his obligations to the 1st appellant.
ii. In his judgment the learned trial Chief Judge stated thus: “As alternative submission, Chief Odeyemi relying on the case of Savannah Bank (Nigeria) Ltd. v. A. O. Ajilo (1989) 1 NWLR (Pt. 97) 305 at 310 seeks to take umbrage under sections 22 and 26 of the Land Use Act. In view of the decision I reached in this matter, there is no need for any academic peregrination to over flog the issue. Suffice it to say that it seems to me morally despicable for a person who has benefited from agreement to turn round and say that the agreement is null and void…”
3. Whether the Honourable Chief Judge was not wrong in dismissing the Counter claim of the 1st Appellant even after finding as a fact that Rinso Ranch Nig. Ltd. is indebted to the 1st Appellant.
RULING: IN APPELLANT’S FAVOUR.
i. Since it has been established beyond doubt as found by the trial court that Rinso Ranch Nig. Ltd. or Rinso Ranch Ltd. is indebted to the 1st appellant and since by virtue of exhibits 6 and 7 the respondent transferred his personal account to the said Rinso Ranch Ltd and guaranteed its liability to the 1st appellant arising from that account – see Exhibit 7 and since by exhibits 12 and 13 Rinso Ranch Ltd is indebted to the 1st appellant on account of the transferred account so guaranteed and in view of the fact that the 1st appellant has demanded repayment which the respondent and Rinso Ranch Ltd have failed to effect, the respondent is liable on the counter claim of the 1st appellant as he undertook in Exhibit 7.
In its place there shall be judgment for the 1st appellant in the following terms:
(a) The Respondent as Mortgagor and guarantor of the debt of Rinso Ranch Ltd. to the 1st appellant standing as at 1/11/91 at N856.378.35 is hereby adjudged liable to pay same to the 1st appellant together with 6% interest thereon per annum from 3rd July, 1997 being the date of judgment of the lower court until the judgment debt is fully paid up.
(b) It is hereby declared that the 1st appellant is entitled to exercise her rights under the deeds of mortgage and rectification executed by the plaintiff in her favour since the company and Respondent have defaulted to settle the company’s debt to the 1st appellant.
(c) There shall be cost in favour of the 1st appellant at N5,000.00 against the Respondent.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
* EXTRINSIC EVIDENCE NOT ALLOWED TO VARY WRITTEN CONTRACT
The Supreme Court has held in Layade v. Panalpina (1996) 6 NWLR (Pt. 456) 544 at 558; (1996) 7 SCNJ 1 at 14-15 per Adio. J.S.C., as follows and I quote; ”The general rule is that where parties have embodied the terms of their agreement or contract in a written document, as it was done in this case, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument … So, where the parties enter into a contract, they are bound by the terms of that contract and it is unfair to read into such a contract the terms on which there was no agreement.”
* GENERAL TRAVERSE OF FACTS
Anah v. Nnacho (1965) NMLR 28 at 31 the Supreme Court in considering a general traverse stated thus: “Now it seems clear that the cumulative effect of these two paragraphs is that the appellants joined issue with respondents in respect of all the lands described in the pink area of Exhibit 2. By common practice a general traverse in the form of paragraph 15 of the statement of defence has always been accepted and when employed it puts the opponent to proof of the facts stated or alleged.”
⦿ REFERENCED (OTHERS)
Click the icons to like, follow, and join Hbriefs