CORAM

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MUHAMMADU LAWAL UWAIS (Presided), JUSTICE, SUPREME COURT

ADOLPHUS GODWIN KARIBI-WHYTE, JUSTICE, SUPREME COURT (Presided and Read the Leading Judgement)

YEKINI OLAYIWOLA ADIO. (Read the leading Judgment), JUSTICE, SUPREME COURT

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PARTIES

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U. B. N. APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The respondent, a customer of the appellant, obtained a loan from the appellant to enable the respondent complete a restaurant. The terms under or subject to which the loan was granted were set out in two deeds of mortgage. He was making payment to the appellant until when there was a disagreement between the appellant and the respondent on the question of the rate of the interest chargeable on the loan. The disagreement could not be resolved. So, the respondent instituted an action against the appellant in the High Court. The trial Judge granted the first four reliefs claimed by the respondent. Dissatisfied with the Judgment of the learned trial Judge, the appellant appealed to the Court of Appeal which dismissed the appeal of the appellant. Dissatisfied with the judgment of the Court of Appeal, the appellant further appealed to the Supreme Court.

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HELD

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The appeal succeeded and was hereby allowed.?

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ISSUES

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1. Whether the plaintiff in the court below discharged his burden to prove his case by credible evidence to justify the affirmation by the Court of Appeal of the first, second, third and fourth reliefs granted to the plaintiff/respondent by the trial court.2. Whether, on a proper construction of Clause 3 of Exhibits 5 and 6 (Deeds of legal mortgage) the mortgagee (the appellant herein) had an obligation to notify the mortgagor (respondent herein) of the change in interest rates from time to time, and whether the failure of the appellant to give such notice justified the nullification by the Court of Appeal of the variation of interest rate in Clause 3.

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RATIONES DECIDENDI

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DUTY OF THE APPELLANT IN WRONGFUL ADMISSION OF EVIDENCE

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“If the error of law is the wrongful admission of evidence, the appellant must show that, without the admission of the evidence, the decision would have been otherwise.” Per ADIO, J.S.C.

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EMBODIMENT OF CONTRACT IN A WRITTEN INSTRUMENT

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“Where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument.” Per ADIO, J.S.C.

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WHERE THERE IS AN EXISTENCE OF A WRITTEN AGREEMENT

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“Where a written agreement on a matter exists, evidence of a preliminary oral agreement cannot be introduced.” Per ADIO, J.S.C.

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A COUNSEL HAS TO TAKE A DEFINITE STAND

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“A counsel has to take a definite stand. He cannot sit on the fence as the law does not permit such a thing. He must make his view known before the case is fixed for judgment. What is open to a counsel when a document is tendered by the other party is to raise an objection if he opposes the admissibility of the document and if he has no objection he should say so.” Per ADIO, J.S.C.

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CASES CITED

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Olaloye v. Balogun (1990) 5 NWLR (Pt. 148) 24Eke v. Odolofin (1961) 1 Al l N LR 404Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283Idundun v. Okumagba (1976) 9-10 S.C. 227

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STATUTES REFERRED TO

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None

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OTHER CITATIONS