Meaning And Nature Of A Waiver

CASE TITLE: GTB PLC v. PICO PROJECTS SERVICES LTD (2023) LPELR-60886(CA)
JUDGMENT DATE: AUGUST 8, 2023
PRACTICE AREA: CONTRACT
LEAD JUDGMENT: JAMILU YAMMAMA TUKUR, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:
This appeal borders on Civil Procedure.

FACTS:
This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, in Case No. CV/316/2021, delivered on April 4, 2022.

The material facts of the case revolved around a loan facility that was granted to the respondent by the appellant. During the course of the loan repayment in 2020, after the onset of the COVID-19 pandemic, the appellant, via email on April 10, 2020, informed the respondent that the respondent was granted a “grace” or “holiday period” of 90 days within which it would not be required to pay interest on the loan.

The respondent saw this as meaning there would be no interest payable for the 90 days, whereas the appellant insisted that what it meant was that the payment was deferred. The Appellant then went on to deduct the sum of N175,138.25k (One Hundred and Seventy-Five Thousand, One Hundred and Thirty-Eight Naira. Twenty-Five Kobo) as the interest payable for the 90 days in question and the respondent, acting on the belief that such deduction constituted a breach of the agreement between the parties, instituted an action before the lower Court vide Writ of Summons dated February 8, 2021, accompanied by all requisite processes, claimed the following:

1. A declaration that the debit of the sum of N175,138.25K by the defendant as interest on loan for the months of April, May, and June 2020, made from the claimant’s account, is unlawful, having regard to the Defendant’s email of April 10, 2020, to the claimant
2. A declaration that the defendant, by its email of April 10, 2020, has varied the terms of the contract between the parties
3. A declaration that the defendant is estopped from charging the claimant interest for the grace period, having waived it by email on April 10, 2020, to the claimant
4. An order compelling the defendant to revert the sum of N175,138,25K it wrongly debited from the claimant’s account on July 22, 2020
5. 21 percent interest on the sum from the date of its wrongful deduction until it is fully liquidated.
6. The sum of N700,000.00 only, being the cost of this Litigation, was paid to its solicitor, Eastwood Solicitors, by the Claimant to prosecute this suit.
7. The sum of N10,000,000.00 damages
8. 10 percent post-judgment interest until the same is fully liquidated.

In response to the Respondent’s claim, the Appellant filed a statement of defense in which it denied the Respondent’s claims and averred that the suspension of payment it granted does not amount to a waiver of its right to the accrued interest on the loan for the period; rather, it was a gesture aimed at allowing the respondent access to its funds during the period of the lockdown by delaying, placing on hold, and/or suspending the repayment of the loan by 90 days instead of the usual monthly deductions.

The matter devolved to trial, and upon conclusion of the trial and related proceedings, the learned trial judge, in a judgment delivered on April 4, 2022, held that the appellant was in breach of the terms of the contract as varied by the appellant and accepted by the respondent, and consequently awarded the sum of N1,500,000.00 (one million, five hundred thousand Naira) as damages against the appellant and a 10% post-judgment sum until the same is fully liquidated.

Dissatisfied with the decision, the appellant appealed to the Court of Appeal.

ISSUE(S):

1. Whether the trial Court was correct in exercising jurisdiction on Guaranty Trust Bank Plc, a non-juristic person that is incapable of being sued in Law.
2. Whether the trial court was right to not take judicial notice of the Central Bank of Nigeria guidelines as subsidiary legislation that falls within the purview of Section 122 of the Evidence Act, 2011
3. Whether the trial court was right to totally ignore the case of the appellant and give judgment against the weight of the evidence
4. Whether the trial court was right to enforce rights not contemplated by the agreement of the parties and award excessive damages against the appellant not proportionate in any way whatsoever to the claims of the respondent

DECISION/HELD:
On the whole, the appeal was dismissed.

RATIO(S):
• ACTION – MISNOMER meaning of misnomer; whether a misnomer can vitiate a proceeding where both parties are familiar with the identity of the person suing or being sued
• EVIDENCE – JUDICIAL NOTICE – Duty of Court to take judicial notice of all laws and subsidiary legislation; whether a party asserting the existence of a law or subsidiary legislation must prove or show it
• PRACTICE AND PROCEDURE – WAIVER OF RIGHT – Meaning and nature of Waiver
• CONTRACT – BINDING CONTRACT – Whether parties are bound by the terms of their agreement; The duty of court to respect the sanctity of the agreements of parties
• APPEAL – INTERFERENCE WITH AWARD OF DAMAGES – Circumstances in which an appellate court will interfere with award of damages made by a trial Court
• DAMAGES – NATURE OF DAMAGES—Meaning of Damages
• DAMAGES – AWARD OF DAMAGES—Guiding principles on the award of damages

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