AKINRINLOLA & ANOR v. ECOBANK (2021)

AKINRINLOLA & ANOR v. ECOBANK

(2021)LCN/15051(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, February 15, 2021

CA/L/322/2016

RATIO

PURPORT OF THE SUMMARY JUDGMENT PROCEDURE

In the case of GREENTEK LTD. V. ACCESS BANK PLC (2015) LEGA LPEDIA PP310 APPEAL NO. CA/L/124/2014 per C. E. Iyizoba, J.C.A. (Rtd) stated thus: in the case of THOR LIMITED V. FIRST CITY MERCHANT BANK LIMITED (2006) 1 WRN 1 AT 18; (2005) 14 NWLR (PT. 946) 696 @ 710-711 H-A cited by the counsel for the respondent the Supreme Court held: “The Summary Judgment procedure which is similar to the undefended list procedure is designed to enable a party obtain judgment especially in cases of liquidated demand without the need for a full trial, where the other party cannot satisfy the Court that it should be allowed to defend the action. The object of the order is to enable a plaintiff to obtain quick judgment when there is no defence to the action NISHIZAWA LTD. V. JETHWANI (1984) SC 234; MACAULAY V. NAL MERCHANT BANK (1990) 4 NWLR (PT. 144) 283; PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD. VS REIN MASS GM BH (1997) 3 NWLR (PT. 493) 248 referred to per C. E. Iyizoba, J.C.A., see also NMCB LTD V. OBI (2010) 14 NWLR (PT. 1213) 169 per Ogbuagu J.S.C. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

WHETHER A STATEMENT OF ACCOUNT CAN, ON ITS OWN, AMOUNT TO SUFFICIENT PROOF TO FIX LIABILITY ON THE CUSTOMER FOR THE OVERALL DEBIT BALANCE SHOWN ON THE STATEMENT OF ACCOUNT

The law is now settled beyond peradventure that a statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the statement of account. Any person who is claiming a sum of money on the basis of the overall debit balance in a statement of account must adduce both testimonial and documentary evidence, explaining clearly the entries therein to show how the overall debit balance was arrived at. See Section 51 of the Evidence Act 2011 and the cases of OGBOJA vs. ACCESS BANK PLC (2015) LPELR (24821) 1 at 42-44, CO-OPERATIVE BANK LTD vs. OTAIGBE (1980) NCLR 215, YUSUF vs. ACB (1986) 1-2 SC 49, HABIB NIGERIA BANK LTD vs. GIFTS UNIQUE (NIG) LTD (2004) 15 NWLR (PT 896) 405 and WEMA BANK vs. OSILARU (2008) 10 NWLR (PT 1094) 150. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

1. MRS. BOLANLE AKINRINLOLA 2. MR. LUCAS AKINRINLOLA APPELANT(S)

And

ECO BANK NIGERIA PLC RESPONDENT(S)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Lagos State, Lagos Judicial Division, delivered by Honourable Justice Lawal-Akapo on 27th May, 2015 in Suit No. LD/269/2012.
The Respondent was the Claimant at the High Court (lower Court) whilst the Appellants were the Defendants.

BACKGROUND FACTS
On 27th February, 2012, the Respondent commenced the suit at the lower Court via a Writ of Summons and Statement of Claim dated same day. The Writ of Summons, Statement of Claim and other frontloaded processes and documents are contained at pages 1 – 48 of the record of appeal.

Alongside the Originating processes, the Respondent filed a Motion on Notice dated 24th February, 2012 for summary judgment. The said Motion on Notice, affidavit in support and written address are contained at pages 49 – 96 of the record of appeal.

In its motion for summary Judgment, the Respondent claimed against the Appellants as follows:
“1. An order entering final Judgment for the Claimant/Applicant against the Defendants/Respondents for the stun of N12,473,621.90k

(Twelve Million, Four Hundred and Seventy-three Thousand, Six Hundred and Twenty Naira, Ninety Kobo) being the amount owed the Claimant by the Defendants which was guaranteed by the 2nd Defendant with interest as claimed ill the Writ of Summons and Statement of Claim.
2. Leave of Court to the Claimant (as an equitable mortgage) to sell the Defendants’ properties used as collateral for the loan.”

Upon being served with the aforesaid processes, the Appellants entered a conditional appearance and filed their defence to the originating processes. The processes filed by the Appellants were their joint statement of defence, Counter Affidavit and Written Address to the Motion on Notice for summary Judgment.

See pages 97 – 116 of the record of appeal.
By a Motion on Notice dated 29th January, 2014, the Appellants sought leave of the lower Court to amend their statement of defence. The Motion on Notice, affidavit and written address are contained at pages 168 – 173 of the record of appeal.

On 3rd March, 2015 the lower Court granted leave to the Appellants to amend their statement of defence whereupon the Appellants filed an

amended statement of defence dated 6th March, 2015. The said amended statement of defence can be found at pages 187 – 190 of the record of appeal.

On 14th April, 2015, the Motion on Notice for summary Judgment was argued and Judgment was reserved till 5th May, 2015. However, Judgment was eventually delivered on 27th May, 2015. In its Judgment, the lower Court awarded the sum of N12,473,621.90k (Twelve Million, Four Hundred and Seventy-three. Thousand, Six Hundred and Twenty-one Naira, Ninety Kobo) jointly against the Appellants and in favour of the Respondent.

Being dissatisfied with the Judgment of the lower Court, the Appellants filed a Notice of Appeal dated 8th June, 2015. On 4th November, 2016, this Court granted an order to amend the Notice of Appeal and the Amended Notice of Appeal dated 18th April, 2016, already filed on 22nd April, 2016, was deemed properly filed and served. Upon a further review of the Amended Notice of Appeal, however, the Amended Notice of Appeal dated 18th April, 2016 was further amended pursuant to the order of this Court. Thus, the Brief of Argument is predicated on the 2nd Amended Notice of Appeal dated 22nd February, 2017.

ISSUES FOR DETERMINATION
Although, there are seven (7) grounds of appeal contained in the Appellants’ 2nd Amended Notice of Appeal dated 22nd February, 2017, it was submitted that four (4) issues call for determination in this appeal. They are:
1. WAS THE RESPONDENT’S CAUSE OF ACTION NOT STATUTE BARRED? (GROUND 1)
2. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN LAW WHEN HE ENTERED JUDGMENT AGAINST THE APPELLANTS JOINTLY WHEN THE PLEADINGS AND EVIDENCE LED DISCLOSED NO REASONABLE CAUSE OF ACTION AGAINST THE 2ND APPELLANT (GROUND 2)
3. DID THE RESPONDENT ADDUCE COGENT AND RELEVANT EVIDENCE TO JUSTIFY THE ENTRY OF JUDGMENT BY THE TRIAL COURT FOR THE SUM OF N12,473,621.90 (TWELVE MILLION, FOUR HUNDRED AND SEVENTY-THREE THOUSAND, SIX HUNDRED AND TWENTY-ONE NAIRA, NINETY KOBO) IN ITS FAVOUR (GROUND 3, 4, 5 AND 7)
4. WHETHER THE LEARNED TRIAL JUDGE OUGHT NOT TO HAVE GRANTED UNCONDITIONAL LEAVE TO DEFEND THE SUIT TO THE APPELLANTS HAVING REGARD TO THE BONAFIDE DEFENCE SET UP BY THEM (GROUND 6)

ARGUMENT ON THE ISSUES FOR DETERMINATION
Was the Respondent’s cause of action not statute barred?
The Appellant had submitted that the cause of action had become statute barred at the time of the commencement of the action. He relies on ADEKOYA VS FHA (2008)11 NWLR (PT. 1099) 539. Taking this issue on the sub-heads thus:

(a) Subject matter of dispute between the parties;
(b) When the cause of action arose;
(c) Period within which to commence an action in respect such dispute under the limitation law; and the effect of statute of limitation;
Appellants’ counsel referring to the averments in paragraphs 2 and 5 of the statement of claim of the Respondent thus;
2 – The 1st Defendant is a business woman and was at all material time to the Suit a customer of the claimant.
5 – The claimant avers that following the 1st Defendant’s application for credit and submits that a banker-customer relationship has been created and existed pursuant to which a simple contract of loan was entered into; Refers to UBN PLC VS AJABULE (2011) 11 NWLR (PT. 1278) 152 on the contractual nature of Banker and Customer relationship; and also, WEMA BANK PLC VS OSILARU (2008) 10 NWLR (PT. 1094) 150 CA.

It was argued that the loan contract, the subject matter of the contract arose from the 2 advances made to the 1st Appellant by the Respondent Bank that the cause of action arose from the date the repayment of the advance of the facilities granted were due. For the Appellant, it was argued that demands for the liquidation of the loan sum of N1,500,000 subsequently sought for and approved was made on 3rd November, 2001.

The learned counsel relying on Section 8(1) of the Limitation Law of Lagos State which provides thus:
“The following action shall not be brought after the expiration of six years from the date on which the cause of action accrued (a) action founded on simple contracts; and Supreme Court decision in ADEKOYA VS. FEDERAL HOUSING AUTHORITY (supra) per Akintan, J.S.C., it was argued that the cause of action arose on 3rd January, 2001 and expired on 3rd January, 2007, in the face of the Limitation Law, Section 8(1) of Lagos State (supra). That the action instituted on 27th February, 2012 as seen on writ of summons and statement of claim on pages 1-6 of the Record of Appeal is instructive. That no legal action may be commenced upon such a contract, as the legal right or cause of action thereon had been extinguished.

See WOHEREM VS EMEREUWA (2005) 5 NWLR (PT. 928) CA that the Respondent’s right had become stale and an indolent litigation cannot be allowed to invoke the judicial powers of the Court, in such circumstances. AREMO II V. ADEKANYE (2004) 13 NWLR (PT. 891) 572 @ 592 (SC).
We have been urged to hold that the plaintiff/respondent’s action was statute barred and issue one be resolved in favour of the Appellant.

Responding, it is contended that the action was not statute barred. It was argued that the cause of action accrued only after the expiration of the date of the demand letter; that the Appellants have not till date denied being indebted to the respondents and that they have rather been requesting for negotiated settlements, waiver and cessation of interest accruing on the total outstanding. That it is only upon the expiry of the demand Notice that the cause of action accrues on that date.
That there was no cause of action. SAMUEL OSIGWE VS. PSPLS MANAGEMENT CONSORTIUM LIMITED LER (2009) SC 244/2006.

Counsel contends that it was irrelevant and inapplicable to cite UBN PLC VS AJABULE (2011) and WEMA BANK PLC VS OSILARU (2008) (supra) to contend that the transaction was a simple contract of Banker and its customer and thus cognizable under Section 8(1)(a) of the Lagos State Limitation Law as the Appellant did and that those cases were irrelevant .
Counsel, however urges that ISHOLA VS. SOCIETE GENERAL BANK (NIG.) LTD (1997) 2 NWLR (PT. 488) PG 405 is the apt case authority.

RESOLUTION OF ISSUE NO. 1
The cause of action in the breach of simple contract is the breach thereof the contract, giving reason or a right to sue for remedy. In the instant case, the contract per the second loan advance of the sum of N1,500,000 was entered into with a tenure of 90 days for liquidation.

It was not liquidated and hence the Respondent was in breach; this gave rise to a cause of action which exercise of remedy by suit only matures and inures upon demand of the debt and its refusal or non-payment upon the expiry of the date line.
In this case the loan was repayable or matured for liquidation on 3rd February, being 90 days after the date of the loan.

On the due date or so thereafter, the right of action is activated; where however, a demand is made, even if prematurely as in this case before the due date, having been made on 3rd January, 2001, that date is the earliest date that the action can be reckoned as being capable of institution, though, technically on the facts and law, the contract cannot be said to have been in breach on that date.
However, this action was instituted on 27th February, 2012 a period of over 6 years, 24 days from the date of the demand, when the action was instituted on 27th February, 2012. Even by the expiration of the tenure of the 90 days agreed for the second instalment of the loan taken on 3rd November, 2000 on the 3rd February, 2007, the cause of action accrued on the moment following mid-night of 3rd February or from the clear day of 4th February, 2001. An action, even in that circumstance that is instituted on 27th February, 2007 is still beyond the period limited by the Limitation Law of Lagos State, Section 8(1) which provides thus:
“The following action shall not be brought after the expiration of six years from the date on which the cause of action accrued
a) Action founded on simple contract, the law will not allow an indolent litigant to peruse a state claim.

In ADEKOYA V. FEDERAL HOUSING AUTHORITY an action in simple contract or quasi-contract not commenced within a period of six years from the date on which the cause of action arose accrued it was rendered incompetent. The action was statute barred on 3rd January, 2007.
That no legal action can be instituted in respect of that cause of action which right of action is extinguished, in law.
See WOHEREM VS. EMEREUWA (2004) 13 NWLR (PT. 890) 398 where the Supreme Court held thus:
“The duration of a right or cause of action which is conferred on an injured party is necessarily limited and does not last till eternity. It lapses after the date the statute of limitation proclaims that no such legal action or proceedings may lawfully be taken or commenced by an injured party.”
See also AREMO II V. ADEKANYE (2004) 13 NWLR PT. 891 AT 572 @ 592 per Edozie, J.S.C. thus:
“Where a statute of limitation prescribes the period within which an action be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an

action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation for instituting such action has lapsed.”
However, the Respondent’s counsel had submitted that the objection based on the action being statute barred had been withdrawn on 3rd March, 2015 and the application in that regard struck out. Counsel submit that the issue cannot be raised afresh without the leave of Court, as it will be incompetent to do so. That it has, however, now being incompetently raised and should be struck out. Suffice it to state that parties, nay counsel cannot acquiesce to waive the application of the law or a statutory provision. See ARIORI VS. ELEMO 1983 SC1.
That Appellant’s purported act of waiver, if done is in-effectual and un-availing in law. This is even more, so that the Respondent’s counsel did not, in his Brief of Argument refer this Court to any portion of the Record of Appeal where such withdrawal of motion or objection was made (even though the withdrawal would have been of no effect or legal efficiency and validity) even if made.

The reference to pages 205-206 on withdrawal of the prayer for dismissal of the suit for being statute barred cannot be supported by that record. The record only has the following
“Mr. Amadi: I seek to withdraw my application challenging jurisdiction dated 30th June, 2014.”
The said relevant application has not been sighted by this Court in the Record of Appeal nor shown to it by the Respondent’s counsel.
In Appeal No. CA/AK/EPT/HA/52/2015; this Court, per Mojeed Adekunle Owoade, J.C.A. in his contributory opinion stated thus:
“I do not think the fact that the non-compliance was not raised by any of the Respondents prevented the Tribunal considering and applying the provisions of Paragraph 53(2) of the First Schedule to show that the parties have taken steps after the said irregularity and the pre-hearing session had started before the Tribunal raised the issue suo motu.
See e.g SA’EED V. YAKOWA (2013) 7 NWLR (PT. 1352) 124 the simple implication of the various dicta of the learned Justices of the Supreme Court in the SA’EED V. YAKOWA case (supra) is that all the

provisions of the Rules of the Tribunal must be read together in order to enhance Justice. The saving provisions for non-compliance in paragraph 53 of the first schedule are in no way inferior to other part of the Rules for these and the fuller reasons contained in the lead judgment of my learned brother Shehu Abiriyi J.C.A., I also allow the Appeal.”
Clearly, therefore, this Court is settled in its thought that the provisions of an enactment, be it a Rule of Court or Regulation must be read holistically and applied fully. The Exception provided in the applicability must be given its intended effect. It must be given effect to.
The Respondent’s learned counsel had argued that the contract was not statute barred as there was no specified date for the re-payment and more so that there was provision for charging interest continuously of an agreed rate so long as the debt remained unpaid. That it was a continuous contract or obligation and cannot be affected by the statute of limitation.
Counsel for Respondent relies on ISHOLA V. S.G.B. (NIG) LTD. (1997) 2 NWLR (PT. 488) PAGE 405 thus: “I will now consider whether the Appellant

succeeded in establishing his defence under the statute of limitation. Generally, a debt is repayment (sic) either on demand, or on notice given or upon any other condition agreed upon by the parties …”
Counsel referred us to the earlier Demand Notice of 10th April, 2008 (found at page 139 of the Record of Appeal) and the 2nd Demand Notice dated 18th April, 2011 (found at page 47, Record of Appeal). Giving the Appellants 14 days to pay up the loan balance at the pain of litigation for failure to do so. Counsel argued that whichever of the demand Notice, was reckoned, time started to run from the expiration of its date stated or extended. That in the circumstances the claimants suit was still within time and not statute barred.
I agree with the reference made to ADEKOYA V. FEDERAL HOUSING AUTHORITY (2008) 6 MJ.S.C. page 66 at page 78-80 that the cause of action accrues, from the date of breach and Notice or expiration of Notice to remedy the wrong and not from the date of the contract. Although, the Respondent’s learned counsel also relied on this Court’s decision in

EJIKE JOEL AJALA V. OGHONNA OKOGBUE LER (2010) CA/OW/75/2008, per Ogunwumiju, J.C.A. to contend that the issue of statute bar raised was incompetent and should be struck out, it being an issue of substantial law and ought only be raised by leave and was not merely a question of jurisdiction.
I do think, however, that the invocation of the issue of statute of limitation is not only an issue of substantial question of law which though impacts on jurisdiction, but is a question of mixed facts and law and facts. It needed leave to be raised for the first time on Appeal. However, in this instant Appeal, leave of this Court was sought and granted in chambers on 4th November, 2016. It had been raised and argued; and I find no merit therein, the issue raised by the Appellant, in the face of the documentary evidence addressed upon by Respondent’s counsel.
Issue 1 is resolved against the Appellants.

ISSUE 2
Whether the learned trial Judge was right in law when he entered judgment against the Appellants jointly when the pleadings and evidence led disclosed no reasonable cause of action against the 2nd Appellant (Ground 2).

On this issue, Appellants submitted that no cause of action was disclosed against the 2nd Respondent, even by examining the Respondent’s statement of claim. Counsel referred to the meaning of cause of action as defined in Black’s Law Dictionary, 6th Edition as the facts or set of facts which give a right to judicial redress or relief against another. A situation or state of facts which give a right to seek a judicial remedy. Relies also on EGBE VS. ADEFARASIN (1987) 1 NWLR (PT. 47) 1 @ 20.
Learned counsel reproducing paragraphs 2, 3, 6, 7, 8, 11 and 17 of the statement of claim where the Respondent averred thus:
“…”

The learned counsel submits that the above averments showed that the transaction was only between the 1st Appellant and the Respondent. That the 2nd Appellant was not liable to offset the credit facility granted to the 1st Appellant by the 1st Respondent. That 2nd Appellant ought not to have been sued in the first place. That though the Respondent alleged by paragraphs 3 and 8 of his statement of claim that the 2nd Appellant stood as Guarantor for the loans granted to the 1st Appellant and signed the Guarantor’s Form, that this fact was vehemently denied by paragraph 3 of the Statements of Defence.

Learned counsel referred to the definition of “Guarantee” in the Pagets Law of Banking Ninth Edition, page 498, as a promise to answer for the debt of another. The promise is made to a person to whom that other is already or about to become liable.

The learned counsel contended that aside the denial, liability never existed against the 2nd Appellant as there was no contract or any memorandum in writing by the 2nd Appellant wherein he admitted or undertook to bear the liability of the 1st Appellant. Relies on Section 9(1) and (2) of the Law Reform (contracts) Law Cap. L81 Laws of Lagos State which provides thus:

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“This section applies to
a. ……
b. ……..
c. ..
d. Every contract by any person to answer to another person for the debt, default or liability of a third party.
2. No contract to which this section applies will be enforced by action unless the contract or some memorandum or note in respect of it is in writing and is signed by the party to be bound or by some other person lawfully authorised.

Learned counsel refers to and quotes Exhibit B, the letter dated February 13th, 2001 signed by the 2nd Appellant and annexed to the letter for summary judgment as the only document. It is contained at page 36 of the Record of Appeal.
The Exhibit B provides thus:
“….”

Counsel contends that the Exhibit ‘b’ does not meet the requirement of Section 9(2) of the law Reform (contract) Law in a manner that will – impose on the 2nd Appellant a liability to pay for the debt of the 1st Appellant. That this is because the letter

does not contain an admission of liability by the 2nd Appellant who cannot be made liable, as the object of S. 9(2) of the Law Reform (contract) Law was to prevent contracts being established by false evidence or by evidence of loose talk – when it was not intended to make a contract.

Counsel submitted that there was no cause of action against the 2nd Appellant and that the 2nd Appellant was not a privy to any of the 2 contracts.
That a stranger to a contract cannot take the benefit of it or be held liable in the event of any breach.BASINCO MOTORS LTD VS WOEMANN-LINE (2009) 13 NWLR (PT. 1157) 149 SC.

The Respondent argues that a reasonable cause of action had been disclosed by a perusal of the meaning and as shown in the Respondent’s statement of claim. That the trial Court had so found by its Ruling taking the averments in the statement of claim and the exhibits, the handwritten letter by the 2nd Appellant. That the contention that there was no cause of action established in the circumstances was an admission of liability, as the facts in the affidavit would be taken as admitted.

HENRY STEPHENS ENGINEERING LIMITED VS S. A. YAKUBU (NIG.) LTD (2009) LEGAPEDIA SC APPC. Where the Supreme Court held:
“When a Defendant files an application (such as the one that has given rise to this appeal) to strike out or dismiss an action on the ground that it discloses no reasonable cause of action, he is, for the purpose of the application, taken to have admitted the facts alleged in the statement of claim.”

CHIEF S. A. DADA & 3 ORS. VS. OTUNBA ADENIRAN OGUNSANYA & ANOR. (1992) 3 NWLR (PT. 232) 754; (1992) 4 SCNJ 162 and IRENE THOMAS VS DR. OLUFOSOYE (1986) 1 NWLR (PT.18) 669 on cause of action relied upon to show what it is and the duty of a Defendant to apply for the striking out of pleadings that disclose no cause of action.

That a Court may even strike out the statement of claim. That facts were either admitted and affidavits before the Court were not denied.
Refers to paragraph 13 of statement of claim at page 10 of Record of Appeal and at page 36, 52 and 76 of the Record. That affidavit evidence constitutes evidence and Depositions therein not denied is deemed admitted. AJOMALE V. YADUAT & ANOR (NO. 2) (1991) 5 NWLR (PT. 191) 226 AT 282-283 (1991) 5 SCNJ 178 and MAGNUSSON VS KOIKI (1993) 12 SCNJ 114.

That there was no counter of the two letters of offer, i.e., Exhibit A and B containing at paragraph 10 thereof as in page 118 of the Record of Appeal, affirming the security for the overdraft and further confirming the liability of the 2nd Defendant/Appellant.

That there was no denial of the fact of demand made of the 2nd Appellant to pay the debt in liquidation; and that failure to reply to such a demand that in the circumstances should elicit a reply or response will amount to admission of the content in such correspondence.
See GWANI V. EBULE (1990) 5 NWLR (PT. 149) PAGE 201 AT 217.

Counsel relied also on S. 128 (1) of the Evidence Act 2011. On the restriction on the evidence in respect of judgment, any other judicial, official proceeding, contract or other disposition of property that has been reduced into form of document or series of document; it is only such document that may be given in evidence – as no oral evidence of its content may be led in proof except where secondary evidence is allowed of its content. No oral evidence to alter the contract, add or vary same shall be allowed.

That there is no answer to the plaintiff/respondent’s claims.
In reply, the Appellant sought to distinguish the cases cited by the Respondent and to show that they were in applicable to the facts and circumstances of the case on appeal now.

RESOLUTION:
A perusal of the arguments for and against this issue as argued and the documentary evidence on record shows that a reasonable cause of action had been disclosed warranting that the 2nd Defendant/Appellant be proceeded with jointly and severally with the 1st Appellant in respect of the loan contract. Issue 2 is resolved against the Appellants.

ISSUE THREE
Did the Respondent adduce cogent and relevant evidence to justify the entry of judgment by the trial Court for the sum of N12, 473, 621.90 (Twelve Million Four Hundred and Seventy-three Thousand Six Hundred and Twenty One Naira, Ninety Kobo) in its favour (Grounds 3, 4, 5 and 7).

Appellants’ counsel submitted that the sum awarded was not supported by evidence and should be set aside.
That the evidence on record showed that the first tranche of the loan, being N700,000 had been liquidated. Paragraph 37 of the statement of claim was relied upon.

It is argued that judgment was given based on motion for summary judgment claiming the money accruable as at 31st December, 2010; that this was wrong as the Appellant had liquidated the 1st tranche of N700,000 and his Counter Affidavit (paragraph 8) in that regard to the motion for summary judgment was not countered or denied.
That it was deemed admitted by the Respondents. NWOSU VS IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT. 135) 688 SC.

That the indebtedness to a Bank by it customer is proved by entries in the Banker’s Book. AKANMU VS. CO-OPERATIVE BANK PLC (2006) 2 NWLR (PT. 963) 82. The definition of “Banker’s Book” as defined in FRN VS FANI-KAYODE (2010) 14 NWLR (PT. 1214) 481 per Galinje, J.C.A. (as he then was) relying on Section 2 of the Evidence Act now (Section 258) was relied upon to contend that a statement of Account which is a periodic summary of the account activity with a beginning date and ending date was a credible way of proving a loan by a Bank.

Counsel refers to OLORUNFEMI VS NEB LTD (2003) 5 NWLR (PT 812) 1 where Musatapher J.C.A. (as he then was) put it pungently thus:
“The usual way of proving debt is by putting in the statement of account or secondary evidence where it is admissible, in the instant case, there is clearly no proof of the loan, as required by law. The finding that the respondent has proved the loan cannot be supported having regard to the evidence”.

That this case was applicable to this appeal which should fail on this ground. Furthermore, that there was no proof of the rate of interest charged as interests are as fixed by the Central Bank Guidelines and not Arbitrarily fixed by the Banks or parties. Relies on SIMET EQUIP LTD VS OMEGA BANK PLC. (2001) 16 NWLR (PT. 739) 344, per Ba’Aba, J.C.A. that how the debit balance was arrived at had to be shown by the oral evidence of an official of the Bank who is familiar with the Account; see BILANTE INT’L LTD. VS N.D.I.C.

That the judgment in this matter on appeal was based on summary judgment, thus, rendering the Respondent’s case incurably bad – as no oral evidence was led to meet the requirement of the law.

Learned counsel took the liberty to calculate the interest and showed that the N1,500,000 granted at an interest rate of 29% per annum amounted to N435,000 and as at 31st December, 2010, it was N5,850, 000 and not N12,473,621.90 as claimed and awarded. That even then the award was unproved contrary to the burden incumbent on a claimant. ALHAJI OTARU & SONS LTD VS IDRIS (1999) 6 NWLR (PT. 606) 330 @ 342 per Onu, J.S.C.; ORJI V. D.T.M. NIG. LTD (2009) 18 NWLR (PT 1173) SC 467 AT 490, per Tobi, J.S.C.
That this issue be resolved against the Respondent.

Respondent contends in answer that the Appellant was deemed to have admitted the claims as there was no denial of the sums claimed. That it was only in a full blown trial, that the Respondent would have been required to substantiate his claims by speaking to the statement of Accounts on the exact sums and how they were arrived at in the final figure.

That the application leading to the judgment was based on Orders II Rules 1 & 5(2) and Order 19 Rule 4 of the Lagos State High Court of Justice (Civil Procedure) Rules 2004 on judgments on no defence to an action and judgment based on Admission respectively. That admissions comes in different forms.

That the burden of proof is merely an onus to prove or establish an issue and that there can be no burden when there are no issues in dispute between the parties and that to discover where a burden lies, the pleadings should be critically examined.
That Appellant had not disputed and deemed to have admitted.

RESOLUTION OF ISSUE 3
I have read the pleadings of the parties and exhibits and the addresses of learned counsel and do not think that the Appellants had unequivocally admitted the claims of the Respondents as contended.

If anything, the admissions harped upon, which may well be, are those arrived at as inferences of the law. They are not admissions upon facts as contemplated by the Order 19 Rule 4 of the High Court (Civil Procedure) Rules 2004, of the Lagos State upon which judgment may be based on summary judgment entered “brevi manu”’ so to say. In the common Nigeria parlance, it is called “judgment just like that, without proof?
Issue 3 is resolved in favour of the Appellant and against the Respondent.

ISSUE 4
Whether the learned trial Judge ought not to have granted unconditional leave to defend the suit to the Appellants having regard to the bonafide defence set up by them. (Ground 6).
This is the same as the Respondent’s issue 4.

It was submitted that the Appellants as Defendants had set up the defence of part payment, arbitrary interest rates charged by Respondent and a denial of liability of the sum of N12,473, 621.90 as claimed by the Respondent.

Counsel refers to paragraphs 5, 7 and 18 of the Amended Statement of Defence and the fact that no reply or Counter-Affidavit was filed in answer or in contradiction. That where a bonafide defence is set up against a motion for summary judgment, unconditional leave ought be granted to such a Defendant to defend the action instead of entering a summary judgment. See ASOMUGHA VS. MANDILLAS ENTERPRISES LTD. (1985) 3 NWLR (PT. 12) 325.
Counsel submits as follows:
“My Lords, it is respectively submitted that in view of contradictory averments in the pleading of parties, disputes on (i) the amount of the debt allegedly owed by the 1st Appellant, (ii) whether the interest rate charged by respondent was appropriate, and (iii) the total

sum accruable to Respondents as contended by the Appellants in their defence, the suit ought to have proceeded to full blown trial so that parties would be given opportunities to call evidence to prove or disprove these issues.
In other words, upon the exchange of pleadings and their respective Affidavits by the parties, the issues placed before the Court were too convoluted such that the issues ought not have been resolved by the learned trial judgment without hearing cogent and relevant evidence as may be adduced by the parties at trial.
In the premises, it is submitted that the learned trial Judge ought to have granted unconditional leave to the Appellants to defend the suit. We urge your Lordships to so hold.”

That the issue be resolved in favour of the Appellant and the appeal be allowed. The Respondent on the issue submitted that there was no issue disclosed warranting a defence and that the trial Court was right to discountenance that there was no defence but admissions which warranted the non-consideration of same in favour of the Appellants.

RESOLUTION OF ISSUE 4
It is obvious from the resolutions of issues 1-3, that the Appellant ought to have been granted leave to defend the suit in a general cause list in a plenitude hearing rather than proceeding on the summary procedure tract on the grounds of no reasonable defence on the merit or even as judgment upon admission, which I have held to be unavailing in this matter.
Indeed the Respondent has by reference and reliance on the case of MACAULAY VS. NAL MERCHANT BANK (1990) 4 NWLR (PT. 144) 283 decided by the Supreme Court pursuant to Order 10 High Court of Lagos State (Civil Procedure) Rules thus:
“In determining whether a defendant has a good defence to the action or has disclosed such facts as may be deemed sufficient to entitle him to defend the action under Order 10procedure, it is not necessary for the trial Judge to decide at that stage whether the defence has been established. What is required is simply to look at the facts deposed to in the counter affidavit or indeed the facts averred in the statement of defence to the action, where applicable to see if they can prima facie afford a defence to the action.”
Said it all against itself and in favour of the Appellant herein.

I had already held that there are no specific admissions of material facts or liability. The submission in reference to the caveat on an appellate Court not to embark on a practice of review of a lower Court’s assessment of evidence placed before it except an Appellant can show that the assessment was not properly done or that the lower Court took irrelevant matters into consideration or that the lower Court did not act judicially and judiciously in arriving at the judgment being challenged and this has led to a miscarriage of justice is an ingenious attempt as there was as yet, full evidence led to be evaluated or assessed in the circumstances of the pleadings exchanged. There is, therefore, no question of caution in evaluating the evidence and not departing from the conclusion of the trial Court by an Appellate Court in the circumstances where such evidence had not been proffered.
Indeed, the Appellants had crossed the rubicon and ought to have been allowed to defend the suit. In the case of GREENTEK LTD. V. ACCESS BANK PLC (2015) LEGA LPEDIA PP310 APPEAL NO. CA/L/124/2014 per C. E. Iyizoba, J.C.A. (Rtd) stated thus: in the case of

THOR LIMITED V. FIRST CITY MERCHANT BANK LIMITED (2006) 1 WRN 1 AT 18; (2005) 14 NWLR (PT. 946) 696 @ 710-711 H-A cited by the counsel for the respondent the Supreme Court held:
“The Summary Judgment procedure which is similar to the undefended list procedure is designed to enable a party obtain judgment especially in cases of liquidated demand without the need for a full trial, where the other party cannot satisfy the Court that it should be allowed to defend the action. The object of the order is to enable a plaintiff to obtain quick judgment when there is no defence to the action NISHIZAWA LTD. V. JETHWANI (1984) SC 234; MACAULAY V. NAL MERCHANT BANK (1990) 4 NWLR (PT. 144) 283; PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD. VS REIN MASS GM BH (1997) 3 NWLR (PT. 493) 248 referred to per C. E. Iyizoba, J.C.A., see also NMCB LTD V. OBI (2010) 14 NWLR (PT. 1213) 169 per Ogbuagu J.S.C.
Clearly, these cases apply in favour of the Appellants herein; and in view of the resolutions of issue 3 and reasons adumbrated by me, (supra) Issue 4 is also resolved in favour of the Appellants.

It is therefore, my judgment that this appeal succeeds in part and is allowed. The Judgment/Ruling of 27th May, 2015 in Suit No. LD/269/2012 of the Lagos State High Court of Justice is set aside; and in its place it is ordered, pursuant to the exercise of powers under S. 15 of the Court of Appeal Act 2004 thus:
1. The suit No. LD/269/2012 between the parties herein is remitted and shall be relisted and heard afresh by a different Judge of the High Court of Justice of Lagos State as may be designated by the Honourable Chief Judge of Lagos; and on the general cause list of the said Court.
Appeal is allowed, in part only.
Parties to bear their costs.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, J.C.A. just delivered.
I agree that the appeal has partial merit and I also allow it. I abide by the elaborate orders made by my learned brother, including the order as to costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The law is now settled beyond peradventure that a statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the statement of account. Any

person who is claiming a sum of money on the basis of the overall debit balance in a statement of account must adduce both testimonial and documentary evidence, explaining clearly the entries therein to show how the overall debit balance was arrived at. See Section 51 of the Evidence Act 2011 and the cases of OGBOJA vs. ACCESS BANK PLC (2015) LPELR (24821) 1 at 42-44, CO-OPERATIVE BANK LTD vs. OTAIGBE (1980) NCLR 215, YUSUF vs. ACB (1986) 1-2 SC 49, HABIB NIGERIA BANK LTD vs. GIFTS UNIQUE (NIG) LTD (2004) 15 NWLR (PT 896) 405 and WEMA BANK vs. OSILARU (2008) 10 NWLR (PT 1094) 150.
This legal position is not changed by the fact that testimonial evidence was not adduced in this matter and that summary judgment was entered based on the motion filed by the Respondent. In such circumstances, it behoves the claimant to clearly explain in the supporting affidavit, the entries in the Statement of Account, on the basis of which it wants summary judgment, so as to satisfy the stipulations of Section 51 of the Evidence Act. The Respondent did not explain the entries in the statement of account and the lower Court erred when it entered summary judgment in its favour.

It is for the foregoing reason and the more elaborate reasons and conclusion articulated in the leading judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, J.C.A., which I was privileged to read in draft, that I also allow the appeal in part, and on the same terms as set out in the leading judgment. I abide by the consequential orders, inclusive of the order as to costs.

Appearances:

Tayo Oyetibo, Esq. For Appellant(s)

Ahoy Chukwuma Ezenduka, Esq. For Respondent(s)