S & Y (NIG) LTD & ORS v. AMCON (2020)

S & Y (NIG) LTD & ORS v. AMCON

(2020)LCN/15279(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/A/697/2018

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

1. S & Y NIG. LIMITED 2. SAUKI GENERAL SUPPLIES LTD 3. HON. BARR. S. D. NGADA APPELANT(S)

And

ASSET MANAGEMENT CORPORATION OF NIGERIA (AMCON) RESPONDENT(S)

RATIO

WHETHER OR NOT PLAINTIFF CAN EXERCISE HIS RIGHTS TI ENFORCE HIS CAUSE OF ACTION ONCE THE ACTION IS CAUGHT UP BY THE LIMITATION LAW

WHETHER OR NOT A DEMAND IS A PREREQUISITE FOR A CAUSE OF ACTION IN RECOVERY OF DEBT
The law is settled, that a demand is a prerequisite for a cause of action in recovery of debt. This Court per Nzeako JCA in HARUNA KOLO V. FIRST BANK OF NIGERIA PLC (2002) LPELR-7106 (CA) held at page 17 that:-
“It is trite law that an action for the recovery of debt, the cause of action accrues upon demand for the payment of the debt. If no demand is made, a cause of action does not arise and no action can be commenced”.
The learned Judge went on to hold, by referring to the cases of ISHOLA VS. S.G. BANK (SUPRA) and ANGYU V. MALAMI (1992) 9 NWLR (PT. 264) 242 AT 252 that the:-
“principles relating to recovery of debt apply also to debts arising from overdrafts, facilities or loans granted by banks to their customers….”.
and that:-
“it is an implied term of the relationship between a banker and his customer that there should be no right of action until there has been a demand or notice given…”. PER YAHAYA, J.C.A.

WHETHER OR NOT THE LIMITATION PERIOD IS AFFECTED WHRE PARTIES ARE ENGAGED IN NEGOTIATIONS

In a number of cases, parties engage in negotiations as to how much to pay as final settlement, when and how. The law is clear. When these negotiations are on-going, the period of limitation applicable, is not affected. In other words, limitation period runs and continues to run even if parties are engaged in negotiation –UNITY BANK PLC V. NWADIKE (2009) 4 NWLR (PT. 1131) 352. However there is an exception to this and it is that when a party admits and acknowledges liability, during negotiations, then the period of limitation will be affected and will not continue to run, or will be excluded, if the cause of action had earlier on, accrued. In JOHN EBOIGBE V. NNPC (1994) LPELR – 992 (SC), the Supreme Court held that:-
“…in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the parties engaged in negotiation… If the negotiation does not result in a settlement or in an admission of liability, the time will not allow the time devoted to negotiation to be excluded from the period which should be taken into consideration for the determination of the question whether a claim has been statute-barred…” see also the case of IGA & ORS. V. CHIEF AMAKIRI (1976) 11 SC 13.
In the S.P.D.C. V. EJEBU (SUPRA) cited by counsel to the Respondent, it was held that where there is an admission of liability during negotiation, such that fulfillment of the agreement is the result being awaited, it would be unjust and inequitable to invoke the statute of limitation to defeat the cause of action, if the party refuses to honour the agreement. This is certainly good law and good sense, so as to prevent a situation in which a party engages in negotiation, acknowledges and agrees to pay his debts, and then reneges on his promise, only to rely on statute of limitation, to escape liability. But the acknowledgment of the liability must be absolute with a clear promise to pay, and this can be inferred by the Court from the pleadings or evidence led before it, before the operation of the statute of limitation can be excluded – N. S. I. T. F. M. M. v. KLIFCO NIG. LTD. (2010) 13 NWLR (PT. 1211) 307. PER YAHAYA, J.C.A.

WHETHER OR NOT TERMS OF A CONTRACT VOLUNTARILY ENTERED BY PARTIES ARE BINDING ON THEM

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court Abuja, delivered on the 8th May, 2018. By its special claim form filed on the 19th October 2017, the Respondent herein, as the Plaintiff at the trial Court, claimed the sum of Six Hundred and Ninety-Eight Million, Seven Hundred and Twelve Thousand, Five Hundred and Twenty Eight Naira, Thirty-Two Kobo (N698,712,528.32) only. It was for the recovery of debt owed by the defendants (now Appellants) to it, as a result of the inability of the Appellants to pay back the loan granted to them by Unity Bank PLC, which the Respondent bought over as a non-performing loan. The parties filed Affidavit in Support, Counter-Affidavit and Further and Better Affidavit.

On the strength of the pleadings, the trial Judge entered judgment in the sum of N341,297,740.74 to the Respondent, said to have been admitted by the Appellants and ordered the Respondent to prove the balance. It is against this, that the Appellants appealed to this Court.

The facts from the record, reveal that the Appellants took loan at several times, from Unity Bank, the successor of Bank of the North. For one reason or another, the Appellants were not able to repay, so that as at the 28th of February 2017, according to the Respondent, the outstanding amount due, which included interest, amounted to N668,110,430.40. In pursuance of its mandate, the Respondent bought over the debt of the Appellants, from the Unity Bank, an eligible financial institution. Thereafter, the Respondent informed the Appellants of this development and obliged the Appellants time to settle the liability. When it was not likely that the Appellants would pay, the Respondent wrote them a letter of demand dated the 24th January 2017, giving them fourteen days within which to settle the debt. The Appellants wrote the Respondent, appealing for restructuring of the debt which was refused. When negotiation broke down and the Appellants failed to settle their debt, the Respondent took out an action against them, which resulted in the judgment delivered against the Appellants.

The Appellants filed a Joint Notice of Appeal on the 22nd June, 2018, with six grounds of appeal. The grounds of appeal without their particulars read:-

1. The Honourable trial Judge erred in law when he entered judgment on the admission of the Respondent without proof, thereby creating a new contract for the parties.
2. The learned trial Judge erred in law when it held that “As the defendants have made an unqualified and unequivocal admission of being indebted to the claimant in the sum of N341,297,740.74…”
3. The judgment of the trial Court was given contrary to the principle of fair hearing, as it reached a conclusion without putting into consideration the submission of the Appellants.
4. The judgment was perverse and not based on the facts and evidence before the Court.
5. The Honourable trial Judge erred in law when he gave judgment to the Respondent over a contract that was stale and/or unenforceable in law thereby depriving the Court of jurisdiction.
6. The judgment of the trial Court is against the weight of evidence.

After transmitting the record of appeal, briefs were filed. The Appellants’ joint brief was settled by Abdulwahab Muhammed and was filed on 31st July, 2018. He identified three issues for determination which are:-
a. Whether the Court below had jurisdiction to entertain the claimant’s suit considering that the subject matter of the suit was stale and/or unenforceable in law. (distilled from ground 5 of the notice of appeal).
b. Whether the trial Court properly evaluated the evidence adduced before it, in accordance with the law before entering judgment on admission for the plaintiff. (grounds 2, 3 & 4 of the notice of appeal).
c. Whether the judgment of the trial Court delivered on the 8th day of May, 2018 without proof that the contract sum was actually paid to the Appellants was in tandem with the law. (grounds 1 & 6 of the notice of appeal).

Mr. M. N. Maigari settled the brief of the Respondent and it was filed on 29th October 2018, but deemed filed on the 14th January 2019. The three issues he identified therein read:-
1. Whether a party who has enjoyed the benefit of a contract can plead statute of limitation while still enjoying the proceeds of the contract.
2. Whether the Trial Court was right in entering judgment in part in favour of the Respondent for the sum expressly admitted by the Appellants.
3. Whether it was the agreement of parties that there must be proof of payment before the trial Court can enter judgment in favour of either of the parties.

The issues identified by the Appellants are apt and I shall utilize them in resolving this appeal.

ISSUE 1
Whether the Court below had jurisdiction to entertain the claimant’s suit considering that the subject matter of the suit was stale and/or unenforceable in law.
Learned counsel for the Appellants posited that a cause of action cannot be enforced on behalf of a person who lacks the right of action – EGBE V. ADEFARASIN (1987) LPELR – 1032 (SC).

Counsel argued that by looking at the special claim form and the statement of claim filed by the Respondent, which are the documents to be considered in determining the period of limitation as stated in ADEKOYA V. FHA (2008) LPELR – 105 (SC), the cause of action of the Respondent accrued on the 16th June 2010 when Unity Bank assigned the Appellants’ account for recovery. Since the claim was filed on the 19th October 2017, it was filed outside the six years permitted by Section 7(1) of the Limitation Act, Cap. 522 LFN 1990 for action founded on simple contract.

Counsel argued that even if 16th June 2010 is not the date in which the cause of action arose, then it should be the date the facility was purchased by the Respondent from Unity Bank and this date is 1st January 2011 (by exhibit A6, page 93 of the record). Still, he argued that this was outside the six years limitation period and so the action is incompetent. He submitted, by referring to WEMA BANK V. OWOSHO (2018) LPELR – 43857 (CA) that since a limitation law takes away the right of action of a litigant, that feature has affected the jurisdiction of the trial Court to adjudicate on the claim and therefore acted in futility. MADUKOLU & ORS. V. NKEMDILIM (1962) 2 SCNLR 34.

Responding, learned counsel for the Respondent argued that the cause of action did not arise on 1st January 2011, because in an action for the recovery of a debt, the cause of action accrues upon demand for the payment of the debt – KOLO V. F. B. N (2002) LPELR 7106 (CA) at 21; (2003) 3 NWLR (PT. 806) 21. That if no demand is made, a cause of action does not arise – ISHOLA V. S.G. BANK (1997) 2 SCNJ AT 19; (1997) 2 NWLR (PT. 488) 405 AT 422; ANGYU V. MALAMI (1992) 9 NWLR (PT. 204) 242 AT 252; counsel referred to Exhibit AMCON 10 (page 43 of the record) to submit that, that is when its cause of action arose and Exhibit AMCON 11 (page 47 of the record) when the Appellants pleaded for time to pay the indebtedness.

Learned counsel for the Respondent also submitted that a party who has enjoyed the benefit of a contract, cannot plead statute of limitation whilst still enjoying the proceeds of the contract as the Appellants are currently enjoying – COMMISSIONER OF FINANCE IMO STATE & ORS. V. KOJO MOTORS LTD (2018) LPELR – 45075 (CA). That it would be unjust and unequitable for a party who has admitted liability during negotiation, as the Appellants have done, to plead statute of limitation – S.P.D.C. NIG. LTD. V. EJEBU (2011) 17 NWLR (PT. 126) 322; ONOKOMMA V. UNION BANK (2017) LPELR – 42748 (CA). He referred to Exhibits AMCON 11, 12, 13 and 14, as showing the admission of the Appellants to the debt and negotiation on payment. He urged us to resolve this issue in favour of the Respondent.

There are bound to be conflicts and disagreements in a community. This is human nature since there are varied interests and idiosyncrasies. A lot of times, the conflicts are settled amicably for peaceful co-existence. In a number of times, the conflicts have to be litigated before solutions can be found. It is therefore not in the interest of any community for litigation to be ageless, timeless and perpetual. There has to be an end to litigation. To ensure this, limitation laws have been enacted to limit the period during which litigation could be commenced for various classes of actions. Therefore, once an action is caught up by the limitation law, the plaintiff will lack the legal right to enforce his cause of action. In other words, legal proceedings cannot be instituted validly, once the action is statute – barred – EGBE V. ADEFARASIN (SUPRA); IBETO CEMENT LTD. V. A. G. FEDERATION (2007) AND CBN V. OKOJIE (2015).
A statute of limitation begins to run from when the cause of action arose- FMC CORPORATION & ANR. V. SCOA PETROLEUM SERVICE (2015) LPELR – 40883 (CA) AT PP. 20-21; OBIEFUNA V. OKOYE 1961 ALL NLR 357; DR. WILLIAMS V. MADAM WILLIAMS (2008) LPELR – 3493 (SC); ASABORO V. PAN OCEAN OIL LTD. (2006) 4 NWLR (PT. 971) 595 and SHELL PETROLEUM DEVELOPMENT CO. (NIG.) LTD. V. FARAH (1995) 3 NWLR (PT. 382) 148. When applying a statute of limitation, it is therefore necessary to determine when the cause of action accrued. A cause of action is the factual situation stated by a plaintiff, requiring proof, that entitles him to a remedy – EMIATOR V. NIGERIAN ARMY (1999) 12 NWLR (PT. 631) 362 AT 369 -370.
The law is settled, that a demand is a prerequisite for a cause of action in recovery of debt. This Court per Nzeako JCA in HARUNA KOLO V. FIRST BANK OF NIGERIA PLC (2002) LPELR-7106 (CA) held at page 17 that:-
“It is trite law that an action for the recovery of debt, the cause of action accrues upon demand for the payment of the debt. If no demand is made, a cause of action does not arise and no action can be commenced”.
The learned Judge went on to hold, by referring to the cases of ISHOLA VS. S.G. BANK (SUPRA) and ANGYU V. MALAMI (1992) 9 NWLR (PT. 264) 242 AT 252 that the:-
“principles relating to recovery of debt apply also to debts arising from overdrafts, facilities or loans granted by banks to their customers….”.
and that:-
“it is an implied term of the relationship between a banker and his customer that there should be no right of action until there has been a demand or notice given…”.
From the above therefore, the Appellants are not at liberty to hold that as at 16th June 2010 when Unity Bank “assigned the Appellants account for recovery”, the cause of action had accrued. It did not. An ‘assignment’ cannot be synonymous with demand. The cause of action accrued when the Respondent made a demand for payment and the Appellants failed to pay.
Further, in A.G. ADAMAWA STATE V. A. G. FEDERAL REPUBLIC OF NIGERIA (2014) NWLR (PT. 1428) 515 AT 566 B, the Supreme Court held that a cause of action in recovery of debt case, accrues when the debtor accepts and acknowledges its indebtedness.
In a number of cases, parties engage in negotiations as to how much to pay as final settlement, when and how. The law is clear. When these negotiations are on-going, the period of limitation applicable, is not affected. In other words, limitation period runs and continues to run even if parties are engaged in negotiation –UNITY BANK PLC V. NWADIKE (2009) 4 NWLR (PT. 1131) 352. However there is an exception to this and it is that when a party admits and acknowledges liability, during negotiations, then the period of limitation will be affected and will not continue to run, or will be excluded, if the cause of action had earlier on, accrued. In JOHN EBOIGBE V. NNPC (1994) LPELR – 992 (SC), the Supreme Court held that:-
“…in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the parties engaged in negotiation… If the negotiation does not result in a settlement or in an admission of liability, the time will not allow the time devoted to negotiation to be excluded from the period which should be taken into consideration for the determination of the question whether a claim has been statute-barred…” see also the case of IGA & ORS. V. CHIEF AMAKIRI (1976) 11 SC 13.
In the S.P.D.C. V. EJEBU (SUPRA) cited by counsel to the Respondent, it was held that where there is an admission of liability during negotiation, such that fulfillment of the agreement is the result being awaited, it would be unjust and inequitable to invoke the statute of limitation to defeat the cause of action, if the party refuses to honour the agreement. This is certainly good law and good sense, so as to prevent a situation in which a party engages in negotiation, acknowledges and agrees to pay his debts, and then reneges on his promise, only to rely on statute of limitation, to escape liability. But the acknowledgment of the liability must be absolute with a clear promise to pay, and this can be inferred by the Court from the pleadings or evidence led before it, before the operation of the statute of limitation can be excluded – N. S. I. T. F. M. M. v. KLIFCO NIG. LTD. (2010) 13 NWLR (PT. 1211) 307.

In the instant appeal, Exhibits 10 and 11 at pages 43 and 47 of the record, have shown clearly, the demand by the Respondent, for the payment of the indebtedness of the Appellants, and the acknowledgment of the liability by the Appellants and their promise to pay, following negotiation. The cause of action therefore accrued on the 24th January 2017 when the demand was made by the Respondent. It can even be held that because of the on-going negotiation, the cause of action arose on 13th February 2012, when the Appellants acknowledged the debt and promised to pay. Whatever date, out of these two dates is applied, the six-year limitation period had not been exhausted when the special claim form was filed by the Respondent on 19th October 2017. It was not statute-barred. It was validly commenced.

The Appellants had acknowledged the debt and had promised to pay. They have refused or failed to honour that promise. They continue to enjoy the funds made available to them by Unity Bank, taken over by the Respondent. It will be totally unjust, unequitable, immoral and against good conscience for a Court of law to permit the Appellants to raise a statute of limitation, to defeat the cause of action that has accrued to the Respondent. They admitted the debt in their joint counter-affidavit at paragraph 23, in the sum of N341, 297, 740.74. The trial Court had jurisdiction to entertain the claimant’s suit. This issue is resolved in favour of the Respondent and against the Appellants.

ISSUES 2 AND 3 TOGETHER.
2. Whether the trial Court properly evaluated the evidence adduced before it, in accordance with the law before entering judgment on admission for the plaintiff.
3. Whether the judgment of the trial Court delivered on the 8th day of May 2018 without proof that the contract sum was actually paid to the Appellants was in tandem with the law.

Learned counsel for the Appellant submitted that the claim of the Respondent was based on the alleged breach of contract the Appellant entered into with Unity Bank between May 2007 and October 2008, in that the Appellants had not liquidated the several loan facilities availed to them. Counsel argued that the contractual documents governing the relationship between the Appellants and Unity Bank, show that the facility was for the Appellants to execute specific projects and it was agreed that repayment of the facilities were to be from the proceeds of the contracts being executed. He referred to pages 77-92 of the record on repayment clause and submitted that unless there is breach of the term of the contract, a party cannot be held liable-PAN BISBILDER (NIG.) LTD. V. FBN LTD. (2000) LPELR-2900 (SC). Counsel argued that the claimant was not able to establish from the pleadings or evidence that the Appellants had breached the terms of the contract before the Respondent took it over. He argued that there was no proof before the trial Court that the proceeds of the executed contracts for which the facilities were granted, had been paid by the contractors to the Appellants. He argued that suspicion of diversion of funds cannot take the place of proof – WAZIRI & ANR. V. GEIDAM & ORS. (2016) LPELR-40660 (SC). Counsel then submitted that the trial Court only acted on assumption or conjecture, when it entered judgment on admission for the Respondent and so acted against the weight of evidence- NKWO MARKET BANK V. OBI (2010) LPELR-2051 (SC).

Counsel submitted further, that before judgment on admission can be entered, the Court must consider the pleadings as a whole and that in this case, the trial Court only isolated paragraph 23 of the Appellants’ Joint Counter-affidavit and acted on it, which is wrong, speculative and had occasioned miscarriage of justice- OKOYE & ORS. V. NWANKWO (2014) LPELR-23172 (SC); BUHARI V. INEC & ORS. (2008) LPELR-814 (SC).

Counsel also submitted, that the trial Judge had a duty to consider the various loan agreements between the Appellants and Unity Bank and interpret the terms therein. That the Respondent did not deny the loan agreements, or the terms contained therein. Since the Respondent did not prove that the Appellants were paid by contractors and they diverted same, entering judgment for the Respondent amounts to creating a new contract for the parties which is not permissible – BFI GROUP CORPORATION V. BPE (2012) LPELR – 9339 (SC). That the contract between the Appellants and Unity Bank is subject to the happening of a contingency and so the contract becomes enforceable only upon the occurrence of the contingency – U.B.A. V. TEJUMOLA & SONS LTD. (1988) LPELR – 3402 (SC) AND TSOKWA OIL CO (NIG.) LTD. V. BANK OF THE NORTH LTD. (2002) LPELR – 3268 (SC). That the Appellants have deposed to the fact that they have not been paid the contract sum and showed same by demand letters to the bodies that awarded them the contract. The contingency had therefore not happened, the contract cannot be enforced and so no admission can be utilized to enter judgment against the Appellants according to law. He urged us to resolve the issue in favour of the Appellants.

For the Respondent, it was submitted that the trial Judge holistically evaluated the Respondent’s affidavit and further affidavit and the Appellants’ joint counter-affidavit before entering judgment for the Respondent upon the admission of the Appellants in paragraph 23 of their joint counter-affidavit (page 74 of the record). That the trial Judge could do so, can be found in Order 11.13 of the AMCON Practice Direction (2013), counsel for the Respondent submitted, especially as admission is the best form of evidence – IPINLAIYE II V. OLUKOTUN (1996) 6 NWLR (PT. 453) 148 AT 165 B – C; DANIEL V. INEC (2015) 9 NWLR (PT. 1463) 11 AT 153 H; RILWAN & PARTNERS V. SKYE BANK PLC (2015) 1 NWLR (PT. 1441) 437 AT 461 A – B AND Sections 20 and 123 of the Evidence Act.

On the issue of the contractual documents governing the relationship between the Appellants and the Respondent, counsel referred to exhibits A1 – A6 at pages 77 – 94 of the record and submitted that each document stated a tenor within which full payments were to be made by the Appellants and that they had failed to pay the amount outstanding to Unity Bank which warranted the Respondent to purchase same. Since they entered into the agreement voluntarily, they ought to honour it, he argued – NICON HOTELS LTD. V. N.D.C. LTD. (2007) 13 NWLR (PT. 1051) 237 AT 266 C – D; IDUFUEKO V. PFIZER PRODUCTS LTD. (2014) 12 NWLR (PT. 1420) 96 AT 115 C.

Learned counsel for the Respondent submitted that by virtue of the contractual agreement between the parties, it was not the duty of the trial Judge to seek proof of actual payment of the contract to the Appellants before entering payment on their admission. He contended that there is no provision in the contractual agreement making them subject to the happening of any contingency and any opinion to the contrary is a misconception. He urged us to resolve the issues in favour of the Respondent.

I have looked at the record of appeal again and the judgment entered by the trial Judge in favour of the Respondent. From pages 215 – 221 of the record, the trial Judge was reviewing the pleadings and the evidence adduced. Then he evaluated the pleadings and the affidavit evidence from pages 221 to 223 of the record before he arrived at the judgment figure of N341,297,740.74.

In the special claim form, the Respondent claimed N698,712,528.32 from the Appellants. This was repeated in paragraph 29 of the Affidavit of facts of the Respondent and supported by the letter of the Respondent on 2nd March 2017 to the Appellants informing them that as at 28th February 2017, their indebtedness stood at the amount of N668,110,430.40 pages 12 and 49 of the record.

The Appellants responded in their joint-counter-affidavit at paragraph 21 of the joint counter-affidavit. At paragraph 21 of the joint counter-affidavit, they deposed to the fact that they were issued with a letter from the Respondent dated 24th January 2017 demanding from them, the payment of their debt of N424,739,515.19. (page 74 of the record). At paragraph 22 therein, they deposed to the fact that they received another letter dated 2nd March 2017 from the Respondent, pegging their indebtedness to N668,110,430.40. At paragraph 23 of their joint counter-affidavit, they deposed to the fact that their indebtedness to Unity Bank as at January 2010, was N341,297,740.74.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Clearly therefore, the Appellants, by their paragraph 23 of their joint counter-affidavit (page 74 of the record) had admitted owing the sum of N341,297,740.74 as at January 2010. It was in consideration of the totality of the pleadings and the evidence, that the trial Judge zeroed on the admitted figure, since it was not in dispute, entered judgment in that respect and then ordered the Respondent to prove the balance of the amount that was not admitted by the Appellants. The trial Judge did not enter judgment in the N424,739,515.19 or N668,110,430.40 that the Appellants deposed that the Respondents said they owed.

The trial Judge was well within the facts and the law when he entered judgment in the figure he did and at the time he did. By the provision of Order 15 Rule 4 of the Federal High Court Rules 2009, he could do so. It states:-
“The judge may, on the application at any stage of the proceedings where admission of facts have been made either on the pleadings or statement, make such orders or give such judgment as upon such admission as a party may be entitled to, without waiting for the determination of any other question between the parties”.
Order 11.13 of the AMCON Practice Direction 2013 provides:-
“When admission of facts have been made, whether on the pleadings or otherwise, the AMCON Track Judge may, of his own initiative or on application….at any stage of the proceedings, make such order or give such judgment as on the admission, a party is entitled to, without waiting for the determination of any other person between the parties”.
The trial Judge could therefore not be faulted when he entered judgment for the Respondent, on the admitted sum of that stage.
It is to be noted further, that by their paragraph 26 of the joint counter-affidavit (page 75 of the record), the Appellants deposed to the fact that it is only “the actual amount outstanding and payable to the claimant by the 1st and 2nd defendants as full and final liquidation of the overdraft facilities” that was in contention. Whilst the Respondents, according to the Appellants, had said the outstanding sum was N424,739,515.19 or N668,110,430.40 (paragraphs 21 and 22, page 74 of the record) the Appellants admitted that the outstanding amount was N341,297,740.74. The trial Judge took this into consideration and awarded same. It is therefore baffling to say the least for the Appellants to complain against that award, which was clearly unequivocally and directly admitted by them. They did not deny indebtedness in this amount. They admitted it and even furnished reasons at paragraph 27 (page 75) as to why they could not repay “the facilities granted” to them. They are bound by the admission they made in their joint counter-affidavit and it is the best evidence in the circumstances – ARAB CHEMICAL LTD V. OWODUENYI (2013) 10 NWLR (PT. 1361) 89 AT 101 AND IPINLAIYE II V. OLUKOTUN (SUPRA).

Turning to the contract documents representing the agreement entered into by the Appellants with Unity Bank, it is clear that each one of them – Exhibits A1 – A6 at pages 77 to 96 of the record – contains a tenor period of three months, ninety days, one-eighty days, one-eighty days, six months and seventy-two months respectively. This means that, that is the period agreed to, for repayment of the facilities granted. The repayment was not made subject to the payment of the contract sum to the Appellants by the various contractors, as submitted by learned counsel for the Appellants. When the contract documents stated that the repayment of the amount was “to be paid off from the proceeds of the contracts being executed”, that was only stating the source of the funds that would be used in re-paying the facilities, a sort of domiciliation, to ensure repayment. It did not limit the repayment of the debt from the contract sum only. That would have been ridiculous and a noose-tightening provision or interpretation of the agreement, since the Appellants would have been at liberty to repay the facilities from other sources. It was not a contingency, i.e repayment was not stated to be made only if the contract sum were paid, no matter how long that would be. Such cannot be read into the contract documents.
The Appellants contracted to repay the facilities within the tenor periods provided, and failure to pay within that period, whether the contract sums had been realized or not, amounted to a breach of the terms of the agreement, making them liable in legal action for the recovery of same – KENTUS CHEMICALS & ALLIED PROJECTS LTD. V. U.B.A. (2012)…..LPELR 9836 (CA).

This is because the terms of a contract voluntarily entered into by parties, are sacrosanct and binding and none of the parties would be allowed to breach it or read into it, that which it does not contain – ODUA INVESTMENT CO. LTD. V. TALABI (1991) 1 NWLR (PT. 170) 761; NIKA FISH CO. LTD. V. LAVINA CORPORATION (2009) 16 NWLR (PT. 1114) 509 AT 542. NOBODY WILL BE ALLOWED TO IMPORT INTO A CONTRACT, WORDS THAT ARE NOT CONTAINED IN IT – AMADI V. THOMAS APLIN & CO. LTD. (1972) 7 NSCC 262. In the premise, Issues 2 and 3 are both resolved in favour of the Respondent and against the Appellants. The result is that this appeal lacks merit and it is hereby dismissed. The judgment of the trial Court delivered on 8th May 2018 in Suit No: FHC/ABJ/CS/999/2019 is affirmed. N250,000 costs to the Respondent.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Datti Yahaya, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein. I only wish to comment on one of the contentions of the Appellants.

The Appellants contended that the action was statute barred. Now, it is settled law that cases are decided on their peculiar facts and circumstances – Dingyadi Vs INEC (2011) 10 NWLR (Pt 1255) 347 at 391, Dankwambo Vs Abubakar (2015) LPELR 25716(SC). The facts of this case show that subsequent to the purchase of the debt of the Appellants by the Respondent as an eligible bank asset from Unity Bank Plc, it wrote to the Appellants demanding for the repayment of the debt and consequent on which the parties entered into negotiations. The records show that in the course of the negotiations, the Appellants wrote letters wherein they acknowledged their indebtedness and made promises to repay. The Appellants took the acknowledgment of indebtedness further when they admitted unequivocally in their joint counter affidavit that they were indeed indebted to the Respondent in the sum of N341,297,740.74.
Where there has been an admission of liability during negotiation and all that remains is the fulfillment of the agreement, the law is that it cannot be just and equitable that the action would be barred after the statutory period of limitation giving rise to the action if the defendant were to resile from the agreement during the negotiation. In other words, where there has been an admission of liability, the right of action is revived – Nwadiaro Vs Shell Petroleum Dev Co Nig Ltd (1990) 5 NWLR (Pt 150) 322, Shell Petroleum Dev. Co. Vs Farah (1995) 3 NWLR (Pt 382) 148, Mkpedem Vs Udo (2000) 9 NWLR (Pt 673) 631, Nigeria Social Insurance Trust Fund Management Board Vs Klifco Nig. Ltd (2010) 13 NWLR (Pt 1211) 307. The admission of liability does not extend the period of limitation. The fact that the admission of liability came upon negotiation, during or post negotiation, does not extend the statutorily prescribed limitation period. Such admission of liability creates or establishes a fresh cause and revives a right of action which might have already become statute barred – Shell Petroleum Development Company of Nigeria Ltd Vs Ejebu (2011) 17 NWLR (Pt 1276) 324. Thus, even if it is correct that the statutory period for the Respondent to commence the action for recovery of debt had elapsed, the Respondent’s right of action was revived by the acknowledgment and admission of liability by the Appellants. The action was not statute barred.

It is for this reason and the fuller exposition of the law in the lead judgment that I too find no merit in this appeal and I hereby dismiss same. I affirm the judgment of the Federal High Court sitting in Abuja and delivered in this matter on the 8th of May, 2018. I abide the order on costs in the lead judgment.

AMINA AUDI WAMBAI, J.C.A.: I have read the judgment of my learned brother, ABUBAKAR DATTI YAHAYA, JCA. I am in complete agreement with his reasoning which I adopt as mine and the conclusion that there is no merit in this appeal.
For the same reasons, I also dismiss the appeal as lacking in merit and abide the Order as to cost.

Appearances:

Abdulwahab Muhammed, Esq. For Appellant(s)

N. Maigari, Esq. For Respondent(s)