On presumption raised where letter sent by post and when deemed to have been delivered to addressee: An insight into the decision of the Supreme Court in Citi Bank v. Martins Ikediashi

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On presumption raised where letter sent by post and when deemed to have been delivered to addressee: An insight into the decision of the Supreme Court in Citi Bank (Nig.) Ltd. v. Mr. Martins Ikediashi [2020]13 NWLR PT.1741 PG. 337-344. Courtesy: Moruff O. Balogun Esq.

 

Summary of Facts:
The respondent operated a current account with the appellant. On 14th November 2003, while his account was in credit, he issued a cheque in the sum of thirty thousand naira (N30,000.00) in favour of one Dr. T. A. Bashorun. Dr. Bashorun presented the cheque to his bank- United Bank for Africa Plc – for payment but it was returned unpaid with the words “Account closed” endorsed on it.

The respondent instituted an action against the appellant and claimed damages in the sum of N 10 million for breach of contract damages in the sum of N 10 million for libel for the appellant’s published defamation of the word “account closed”; a full apology from the appellant to the respondent; and interest on the judgment Sum at the rate of 10% per annum until final payment thereof.

The respondent contended that the endorsement on the cheque did not only constitute a breach of contract but that it was also libelous having been published to Dr. T. A. Bashorun and the staff of the UBA Plc. when in fact he was not given notice of the closure of his account with the appellant.

The appellant’s defence was that the endorsement on the cheque was premised on the fact that the respondent’s account had earlier been closed and the notice of the closure was given to the respondent via a letter sent through registered post as contained in their agreement. At the conclusion of hearing, the trial court gave judgment for the respondent.

The appellant appealed to the Court of Appeal, which allowed the appeal in part. It affirmed the judgment of the trial court except as it related to the award of damages in the sum of N2million and costs of N200,000 which were set aside.

The appellant was not satisfied and it appealed to the Supreme Court which, in determining the appeal, considered the provision of section 64(3) of the Nigerian Postal Service Act which states as
follows:

“64(3) The placing or delivery
Of an article in any receiving box for the deposit of postal article, or delivery of an article to an officer of the Postal Service in the course of his duties; or
the delivery of a postal article at the house or office, private mail bag, and private letter box of the addressee or to the addressee (or to his servant or agent or other person considered to be authorized to receive the article according to the usual manner of delivering post articles to the addressee) and where the addressee is a guest or is resident at a hotel, delivery to the proprietor or manager therefore or to his agents, shall be deemed to be delivery to the addressee.

The Account Opening Form filled by the respondent was admitted as exhibit “C’. It states in paragraphs 7 and 8 thus:

“7. The bank may, at any time with at least 7 days notice to me, close my account, whether it be in debit or in credit.
8. Any notice or letter addressed to me and sent through post at the address supplied by me shall be considered as delivered to and received by me at the time it would be delivered in the ordinary course of post.”

On Presumption raised where letter sent by post and when deemed to have been delivered to addressee-
At common law, an acceptance of an offer by post takes effect from when the letter containing the acceptance was posted. For that purpose, a letter is posted when it is put in the control of the post office, or one of its employees authorized to receive letters. The common law posting rule, a rule of convenience so to say, is that once the letter is posted, that is put in the control of the post office, there is a presumption that it will reach the addressee and the onus is not on the addressor to ensure either that it was not lost or was in fact delivered. The posting rule has been enacted into section 64(3) of the Nigeria Postal Service Act, Cap. N127, Laws of Federation of Nigeria, 2004 (NIPOST Act).

In the instant case, by the posting rule, the letter posted or dispatched by the appellant on 15th
October, 2003, which conveyed to the respondent the notice of the closure of his account, was deemed to have been delivery to the respondent upon the same being delivered to the NIPOST for delivery to the respondent, at the address furnished by him. Therefore, in view of section 64(3) of the NIPOST Act, read together with paragraphs 7 and 8 of their agreement, it was perverse of the Court of Appeal to have held that the delivery of the letter/notice to the respondent was a condition precedent for the closure of the respondent’s account. The combined reading of paragraphs 7 and 8 of exhibit C did not envisage that the appellant would be burdened or obligated to prove actual delivery to, or receipt by the respondent, of any notice or letter sent to him by the appellant through post.

On Proof of delivery of article by post-
The law guiding transmission of articles by post is the Nigerian Postal Service Act. Hence, clause 8 of the contract of the parties in the instant case must be read in conjunction with the provisions of the Nigerian Postal Service Act. In other words, the emphasis in clause 8 is delivery of the notice or letter to the respondent by post; that is, that the appellant shall dispatch the notice of closure of the respondent’s account through NIPOST. By virtue of clause 8 of the contract, the respondent agreed that notice sent to him through post shall be considered as delivered and received by him at the time it would be delivered in the ordinary course of post. The Court of Appeal erred when it held that any notice or letter sent through the post to the respondent shall be deemed to have been delivered to him upon same being handed over to him in the course of ordinary post, and where by registered post, upon such letter being signed for and collected from the postal officials. Clauses 7 and 8 of the terms and conditions of the agreement did not provide that collection of the notice or letter from the post office was a condition precedent to the closure of the respondent’s account by the appellant.
From the terms and conditions of the agreement and the available evidence, the respondent was given the required notice before the closure of his account. In the result, the appellant was not in breach of the contract between the parties. There was evidence that the letter notifying the respondent of the plan to close his account was duly dispatched in the ordinary course of post, to NIPOST and that was not specifically controverted or disputed by the respondent. The notice sent to the respondent by post was deemed delivered to him at such time it would be deemed delivered in the ordinary course of post. The respondent was given the required notice of account closure in compliance with the terms and conditions of the contract and the applicable provisions of the NIPOST ACT.

On Proof of delivery of article by post –
By virtue of section 64(3) of the Nigerian Postal Service Act, the delivery of an article in any of the following ways shall be deemed to be proper delivery to the addressee, that is:
the placing or delivery of an article in any receiving box for the deposit of postal article; or
the delivery of an article to an officer of the Postal Service in the course of his duties; or
the delivery of a postal article at the house or office, private mail bag, and private letter box of the addressee or to the addressee (or to his servant or agent or other person considered to be authorized to receive the article according to the usual manner of delivery of postal articles to the addressee); or where the addressee is a guest or is resident at a hotel, delivery to the proprietor or manager therefore or to his agent,

In the instant case, by virtue of the agreement between the parties, the appellant was entitled to close the respondent’s account “at any time” “with at least 7 days notice” and “whether the account is in debit or credit.” Also, by the agreement, any notice or letter addressed to the respondent would be considered as delivery to and received” by him at the time it would be delivered in the ordinary course of post. The ordinary course of post is as stipulated in section 64(3) of the NIPOST Act. By that section and clause 8 of the agreement between the parties, the notice was deemed to have been delivered to the respondent on 15/10/2003 by registered post. There was also unchallenged evidence that the respondent’s account was closed on 14/11/2003, more than 7 days after the notice was delivered to him in accordance with clause 7 of the agreement. The Court of Appeal was therefore wrong when it held that the respondent was not given the required notice before his account was closed.

Courtesy:
MORUFF O. BALOGUN ESQ.
IJEBU ODE,OGUN STATE.
08052871414.

 

 
 



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