JOEL OKUNRINBOYE EXPORT COMPANY LIMITED & ANOR v. SKYE BANK PLC. (2014)

JOEL OKUNRINBOYE EXPORT COMPANY LIMITED & ANOR v. SKYE BANK PLC.

(2014)LCN/7597(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of December, 2014

CA/B/123/2010

RATIO

STATUTE OF LIMITATION; THE DETERMINATION OF A PERIOD OF LIMITATION; WHAT THE COURT HAS TO LOOK AT IN THE DETERMINATION OF A PERIOD OF LIMITATION

It is trite law that in the determination of a period of limitation, one has to look at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing the date with that on which the writ was; filed, one would be able to resolve the issue if the suit is within or outside the limitation period allowed by law. See Omotayo vs. NRC (992) 7 NWLR (Pt.254) 471 @ 483. per. SOTONYE DENTON WEST, J.C.A.

STATUTE OF LIMITATION; LIMITATION OF ACTIONS; WHETHER IS A MATTER OF LAW AND NOT MERE MATTER OF PRACTICE AND PROCEDURE AND THE EFFECT OF NOT COMMENCING A LAW SUIT WITHIN THE SPECIFIED PERIOD
Now, the question of limitation of actions is not a mere matter of practice and procedure alone but a matter of law as contained in the relevant statutes.
Therefore a plethora of cases have held that the effect of not commencing a law suit or judicial proceeding within the specified period is that such a claim will be extinguished after the time for commencing it has elapsed. Thus the claim or injury with the resulting damage or loss becomes, in the words of the Supreme Court “Otiose with defluxion lf time.” See Olutola vs. University of Ilorin (supra); Mercantile Bank (Nig.) Ltd. vs. Feteco (1998) 3 NWLR (Pt.540) 143 @ 157 per. SOTONYE DENTON WEST, J.C.A.

COURT: DUTY OF COURTS; THE FACT FINDING DUTY OF THE TRIAL COURT AND WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT ARE FOUND NOT TO BE PERVERSE

Now, it is not to be overemphasized that the law is grounded on facts – EX FACTO JUS ORITUR. By this, it is the duty of the Court to voyage on a fact finding mission supported by evidence in arriving at a decision in any matter before it.
And the Court that is most imbued with this distinct task is the trial court, see Mogaji v. Odofin (1978) 4 SC 91, this court is only a Court of re-hearing which and is only allowed to interfere with the findings of the Trial Court where they are found to be perverse. And in such situations, the interference of the appellate court with the findings of fact would be to put the facts and the law in their proper con and perspective. See Odonigi Vs. Agboola (1974) 10 SC 111; Ajuwa Odili (1995) 2 NWLR (PT.9) 710:

I have gone through the arguments and submissions of the learned counsel on both sides. And it seems to me and I so hold that the Appellant, as rightly argued by the Respondent has not been able to lend credible evidence to grant the relief sought. per. SOTONYE DENTON WEST, J.C.A.

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

1. JOEL OKUNRINBOYE EXPORT COMPANY LIMITED
2. SENATOR OKUNRINBOYE Appellant(s)

AND

SKYE BANK PLC Respondent(s)

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision delivered on 16/01/2009 by the High Court of Ondo State, Owo Judicial Division, Ondo State (hereinafter simply referred to as the “lower court”) presided over by Hon. Justice A. O. Adebusoye (hereinafter simply referred to as “the learned trial Judge) wherein His Lordship entered judgment by dismissing the suit on the ground of being statute barred.

SUMMARY OF FACTS
The parties at the lower court filed and exchanged their respective pleadings. The plaintiffs (hereinafter referred to as the Appellants) case at the lower court is that the 1st Appellant is a limited liability company while the 2nd Appellant is the Chief Executive Officer and acted for and on behalf of the 1st Appellant with respect to its dealings with the Respondent, the Respondent at the time was known as Cooperative Bank Plc with headquarters at Ibadan but having a branch at Owo, Ondo State, and later merged with other banks to become Skye Bank Plc.

The Appellants operated two (2) domiciliary accounts with the Respondent for purpose of receiving foreign currencies in dollars and pounds sterling as proceeds of the 1st Appellant’s sales of cocoa exports abroad.

However, sometimes in September, 2005, the Appellants demanded to know the state of their financial deposits remained unheeded to. More so, the Respondent failed to issue the Appellants a statement of respective domiciliary accounts with the bank. The foregoing informed the Appellants to institute an action against the Respondent via a Writ of Summons filed on the 4th day of July, 2006, seeking the following reliefs:
(a) A DECLARATION that the Plaintiffs are entitled to the sum of $294,888.00 USD and ?490,108.49 pounds sterling on Plaintiffs’919191 domiciliary accounts which the Defendant has persistently refused to issue Statement of Account and./or failed to pay.
(b) AN ORDER on the Defendant to pay the Plaintiffs the said sums of $294,888.00 USD and ?490,108.49 pound sterling in the accounts of the Plaintiffs.
(c) AN ORDER on the Defendant to produce an accurate Statement of Account in respect of the 2 accounts.
(d) A DECLARATION that the Plaintiffs are entitled to 10% interest of that accrued from the time the Defendants received the money till the date judgment is entered and till the final liquidation of the said sum.
(e) The sum of N20 million Naira against the Defendant for the fraudulent withholding of Plaintiffs’ money that led to their business suffering a serious setback.

The case for the Defendant (hereinafter referred to as the Respondent) was that, the Appellants was one of the Bank’s major customers when it was known as Cooperative Bank Plc between 1989 and 1999, it granted credit facilities to the Appellants as a cocoa exporter to facilitate and enhance its business and in return the Appellants opened domiciliary accounts in which proceeds of the said cocoa export business was to be paid. Sometimes in 1993 – 1994 the 1st Appellant could no longer meet its obligation to the Respondent due to an alleged diversion of the proceeds of cocoa export business to another Bank and this led to the indebtedness of the 1st Appellant to the Bank, and the Bank subsequently exercised its right of lien over monies that accrued to the Appellants’ bank between 1993 – 1996 to satisfy the debts of the Appellants.

The Respondent on 23rd November, 2006 filed Notice of Preliminary Objection contending that the suit was statute barred which was overruled. The learned trial Judge in a considered judgment delivered on 16th June, 2009 however dismissed the suit as being statute barred.

The Appellants on 16th March, 2009, being dissatisfied with the said judgment filed a Notice of Appeal, containing 5 Grounds of Appeal at the hearing of the appeal by this court on 27th May, 2014, the Appellants’ Brief of Argument dated and filed 10th October, 2011 and deemed on 29th November, 2011 and a Reply Brief to the Respondent’s Notice of Preliminary Objection dated 11th May, 2012 and filed on 15th May, 2012 was adopted by ADETAYO ADEYEMO, ESQ.

The Respondent’s Brief of Argument dated 5th April, 2012 and filed on 17th April, 2012 incorporated a Notice of Preliminary Objection, was adopted as their argument in the appeal by ABIOLA OLAGUNJU, ESQ.

Learned Counsel for the Appellants donated two (2) issues for the determination of the appeal and the issues are:
1. Whether the trial court was right in holding that the Appellants’ suit was statute barred when special defence of statute of limitation was not specifically pleaded by the Respondent and the lower court had earlier ruled that the suit was not statute barred.
2. Whether the lower court was right to have dismissed the claim of the Appellants in spite of the fact that the Appellants established by preponderance of evidence that it has proceeds of cocoa export in its domiciliary accounts and the Respondent failed to establish the actual amount it applied from the Appellants’ domiciliary accounts to reduce the alleged indebtedness of the 1st Appellant to it.

The Respondent while adopting the two issues formulated by the Appellants first contended this appeal by way of preliminary objection brought pursuant to Order 10 Rule 1 of Court of Appeal Rules, 2011.

The objector contended that this appeal be dismissed for being incompetent. The reason adduced was that the Notice of Appeal dated 16th day of March, 2009 and filed on the same day at pages 245 – 247 of the records is fundamentally defective and incurably bad, therefore incompetent having been filed against the decision of “Owo High Court”. The objector contended that the appellation “Owo High Court” is a State High Court of Justice not known and/or listed among the states in the Federal Republic of Nigeria mentioned in the First Schedule, Part 1 of the Amended Constitution of the Federal Republic of Nigeria 2011.

He submitted that there is no state in Nigeria known or named as Owo State and whose High Court decision is being appealed against. And further submitted that until the said Notice of Appeal is amended to reflect the actual State High Court or Federal Capital Territory among those stated in the First Schedule, Part 1 of the amended Constitution of the Federal Republic of Nigeria, 2011, this appeal is incompetent and therefore makes this court lacking in jurisdiction to adjudicate over it in compliance with the provision of Section 241(1)(a) of the said Nigeria Constitution. He also cited the cases of Madukolu vs. Nkemdilim (1962) ALL NLR 587 @ 590; Ajide vs. Kelani (1985) 3 NWLR (Pt.12) 248 @ 249 and Nuhu vs. Ogele (2004) FWLR (Pt.193) 362 @ 385 para A. This court was urged to strike out this appeal.

In the Appellants’ Reply to the Respondent’s Notice of Preliminary Objection, the learned counsel drew attention of this court to the fact that the issues that constituted the cases of both parties took place in Owo, Ondo State and the trial court was the High court of Ondo State, holden at Owo. Also that the said Notice of Appeal was filed at the High Court of Justice, Owo, Ondo State as can be evidenced by the Registry’s stamp on it. Also that the Appellants’ Brief of Argument filed on the 10th day of October, 2011 referred to the High Court of Ondo State. While drawing our attention again to the fact that the Respondent did not, in its said Notice of Preliminary Objection complain of any confusion or misapprehension (if any) it suffered as a result of the irregularity, he queried the fact that the Respondent went ahead to join issues with the Appellants in its Respondent’s Brief on the same facts and circumstances of this case as they were presented at the lower court, the High Court of Ondo State, Owo Judicial Division, Owo.

The learned counsel submitted that the objection is only an attempt at making a mountain out of a molehill. Calling the irregularity a simple “printer’s devil” error not incapable of occasioning a striking out or a dismissal since it is not fatal to the case.

Relying on the cases of Duke vs. Akpabuyo (2005) 19 NWLR (Pt.959) 130 @ 143, paras. B – C; Saleh vs. Monguno (2006) ALL FWLR (Pt.332) 1411 @ 1438 – 1439 S.C.; Sani vs. Agara (2008) 4 WRN 142 @ 155 lines 10 – 25; Pam vs. A.N.P.P.. (2008) 4 NWLR (Pt.1077) 219 @ 251. Counsel submitted that this instant irregularity was a mere mistake as it denotes something not being fundamentally tainting or besmirching of a proceeding as to render it invalid or a nullity. He stated further that this court should in the interest of justice (as held on varied cases) view this as a mistake by the Appellants’ counsel which ought not to be visited on the Appellants.

He posited further that the case of Ajide vs. Kelani (1985) 3 NWLR (Pt.12) 248 @ 249 and Nuhu vs. Ogele (2004) FWLR (Pt.193) 362 @ 385, para A cited by the Respondent are not in tandem to its objection at all. Firstly, that the case of Ajide vs. Kelani (supra) is not in any way in pari material with the objection at hand. Secondly, that in the case of Nuhu vs. Ogele (supra), the dispute therein was all about whether a 9th Ground of Appeal bothering on the propriety of the decision of the Upper Area Court which was delivered in chambers – in camera and this does not share any similarity in any way or circumstances with this instant case vis-‘E0-vis the Preliminary Objection.

The learned counsel therefore urged this court to dismiss the preliminary objection of the Respondent as it is a simple mistake that can be corrected via a simple oral application to court in the interest of justice rather than allow the sin of counsel be visited on the Appellants.

RESOLUTION OF THE ISSUE OF THE PRELIMINARY OBJECTION ON THE APPELLANTS AS ENCAPSULATED IN RESPONDENT’S BRIEF OF ARGUMENT AND BROUGHT PURSUANT TO ORDER 10 RULE 1 OF COURT OF APPEAL RULES 2011.
A look at page 245 – 247 of the record clearly shows the undisputed wording, thus:
“TAKE NOTICE that the Plaintiffs/Appellants being dissatisfied with the whole decision contained in the judgment of the court of Owo High Court dated the 16th January, 2009……”

It is on the ground of this seemingly obvious error or mistake that the objector/Respondent wants this honourable court to strike out in limine this appeal as being fundamentally defective and incurably bad.

Now the question before this court is if indeed this obvious flaw which I have chosen to term an error is so fundamentally defective and incurably bad to warrant a striking out of this appeal in limine. To this, I say a big No!

There exists no doubt as to the importance of a Notice of Appeal as it is the foundation of an appeal and it is the condition precedent to effective appeal against any appealable decision hence where a notice of appeal is defective, the Court of Appeal lacks the legal competence to entertain the appeal since the Notice of Appeal is a nullity and a fortiori, there never was any appeal lodged or filed ab initio. ln such circumstance the court will strike out the appeal. See: Olowokere vs. African Newspapers of Nig. Ltd. (1993) 5 NWLR (Pt.295) 583 @ 586 ratio 1.

In this instant case one may concede some sort of patent irregularity on the Notice of Appeal, the error of the litigant was the usage of the word ‘Owo High Court’. In truth as we all know that there exists no such state as Owo, but this obvious error cured itself in the very document.

First and foremost, Order 6 Rule 1 of the Court of Appeal Rules 2011 states thus:
“All appeals shall be by way of rehearing and shall be brought by notice (hereafter called “the Notice of Appeal” to be filed in the registry of the court below………..” (Emphasis mine)

From the foregoing, the question now is what court below was the Notice of Appeal filed? A careful look at page 248 of the Record of Appeal clearly bears the endorsement of the court below which is the High Court of Justice, Owo, Ondo State and dated 16/3/2007.

Now having carefully gone through the said Notice of Appeal as contained on page 245 – 248, it clearly fulfills all the requirements of a well filed proper Notice of Appeal in line with the provision of Order 6 of Court of Appeal Rule, 2011 except for the patent defect stated above which has been patently cured by the endorsement of the court where it was filed. Except the objector/Respondent was able to prove in any form how this error has led to any form of miscarriage of justice, I recline from sustaining the objection sought.

At this juncture, I would like to lend my voice of urging our dear lawyers not to resort to the obvious absurdity of shielding itself with any strand of clothing in the hope of defending itself from the Sword of Justice which will inevitably tear through every veil. If indeed we want to move from the era of substantial justice as against technical justice then a counsel would do well to rely on the ability of persuasive argument and scholarship to pursue judgments harmonized with justice for their clients, rather than hide behind the thin veil of technicalities which in itself cannot stand to their knowledge. To this end, the Notice of Preliminary Objection as raised by the Respondent therefore fails and is hereby dismissed.

I shall now go on to the merit or demerit of the appeal. I reckon that the interest of justice will be adequately met if this appeal is determined based on the two issues donated by the learned counsel for the Appellants. I therefore adopt them as issues for determination of the appeal.

ISSUE ONE (1)
Whether the trial court was right in holding that the Appellants suit was statute barred when special defence of statute of limitation was not specifically pleaded by the Respondent and the lower court had earlier ruled that the suit was not statute barred.

Learned counsel for the Appellants while remarking that the Appellants’ case was dismissed at lower court on the basis that it was statute barred and this decision was predicated on the testimony of PW4, one Mrs. Modupe Olakunle and led to the reasoning that whereas the cause of action arose in 1998, the Appellants instituted their case only in 2006.

Counsel narrated that indeed PW3 and 2nd Appellant had paid a visit to DW2 who was the Managing Director of Co-operative Bank Plc (now Skye Bank Plc – the Respondent). He said it was at the meeting; the 2nd Appellant was informed that the 1st Appellant had no money in its domiciliary accounts. He argued that banks by the peculiar nature of their operations have over the time evolved its conventions, customs and usages and one of these is by diligent documentation of instructions and transaction from their counters.

Learned counsel while relying on the case of Alhaji M. U. & Sons Ltd. vs. LBN Plc (2006) 2 NWLR (Pt. 964) page 288 @ 290 where it held thus:
In modern banking, transactions are documented and terms of the transactions are explicitly stated.”

Counsel submitted that it would be erroneous to assume that the 2nd Appellant’s visit in company of PW3 to meet with his bankers in 1998 amounted to a demand for the payment within the contemplation of the Limitation Laws of Ondo State and in banking practice and tradition.

Learned counsel for the Appellant further submitted that the lower court was in grave error to have held that the oral demand by 2nd Appellant in 1996 which was clearly unbacked by any document as against the Appellants’ Solicitor’s written demand written in September 2005 and was the proper pointer to when this cause of action arose. He argued that should this line of reasoning be sustained it will lead to manifest absurdity and will most certainly distort the banking system, where transaction would now have to be determined on the basis of Banker’s words against that of their: customers or vice versa.

Further in his submission, counsel said that the lower court acted under a gross misconception of the law when he discountenanced the submission of the Appellants that the defence of limitation of time later raised by the Respondent in his final address was not pleaded by it and proceeded to dismiss the Appellants’ case. See page 168 – 169, 178-186 of the records. While basing his argument on Order 25 Rule 6(1) of the Qndo State High Court (Civil Procedure) Rules which expressly provided that for a special defence to avail a litigant, it must be specifically pleaded. Counsel also submitted that there are a plethora of judicial authorities that lend credence to the above stated position. The learned counsel referred this court to the case of Agric. Dev. Corp. vs. Okedi (2004) 11 NWLR (Pt.884) 369 @ 385, paras G – A states thus:

“To be able to rely on a statute of limitation as a defence, the Defendant is obliged to specifically plead such statute. The word used is shall. It makes a preemptory demand on the Defendant for the action specified. If the Defendant fails to plead the statute, he cannot take advantage of it. If is the same with any condition precedent that a party seeks to contest.

In the present appeal the Appellant would have it declared in its favour that the Plaintiff/Respondent’s action in the lower court was statute barred and was incompetent for the non fulfillment of a condition precedent. By the mandatory provision of Order 25, Rule 6(1) and (2) it should have specifically pleaded these matters in its Further Amended Statement of Defence. As if failed to do so, I must agree with the Respondent that it had waived its rights to the benefits of those provision and it is too late in the day to raise the point as of right. No application has been made for leave to raise it for the first time before us. See; Mobil Producing Nigeria Unlimited vs. Lagos State Environment Protection Agency & 1 Ors. (2002) 18 NWLR (Pt.789) 1.”

Counsel said that the above provisions of Order 25 Rule 6(1) and (2) of the High Court of Rivers State Civil Procedure Rules 1987 cited above is in pari materia with Order 25, Rule 6(1) and (2) of the Ondo State High Court Civil Procedure Rules under consideration in this suit.

The learned counsel for the Appellants also cited the averments of Onu, JSC (as he then was) in the case of U.B.A. Plc. Vs. BTL Industries Ltd. (2006) 19 NWLR (Pt.1013) 6t @ 106, paras F – H thus:
“As this is a special defence which Appellant was raising for the first time in this court, we were urged to strike out this issue on ground of incompetence, it being settled law that special defences must be specifically pleaded.
(2) Ibrahim Kanu vs. Gbadamosi Oyelakin (1993) NWLR (Pt.282) 399 @ 404 paras D – F which states as follows:
“A defence which is a special defence and is available to the Defendant at the time of the action must be pleaded specifically; where it is not pleaded, it could not be raised even on appeal.”
(3) Chief Niyi Akintola vs. Balogun (2002) 1 NWLR (Pt.642) @ page 523 particularly at page 551, paras D – E which states thus:
“A special defence ought to be specifically pleaded in the instant case, the grant of licence can be taken as a special defence which ought to be specially pleaded.”

In reference to all the foregoing, counsel submitted that it was incontestable that the special defence by limitation of time only arose in the middle of trial from the testimony of PW3 and was not specifically pleaded. And he argued that this was tantamount to taking the Appellants by surprise at the lower court and therefore could not be sustained as parties never joined issues on this ground at the lower court.

Therefore counsel further submitted that the learned trial Judge erred in law, by placing reliance on the evidence of PW3 and DW2 in arriving at the decision that the case was statute barred when the Respondent never pleaded that the Appellants’ case was statute barred nor was it raised as a defence in its pleadings and since parties are only bound by their pleadings any evidence given outside the parties pleadings goes to no issue. He referred to the case of Ademolaju vs. Adenipekun (supra) Pt.450 paras G – D; Adenle vs. Olude (2002) 18 NWLR (Pt. 799) 413 @ 434 – 435, paras G – A.

Furthermore,, the learned counsel for the appellant submitted that as at 14th December, 2006 when the trial Judge ruled that the matter was statute barred the court had become functus officio and no longer had jurisdiction to revisit the order, he stated that the position of the law is that any party that is aggrieved about a Ruling is entitled to exercise its constitutional right by appealing to the Court of Appeal. He placed reliance on the case of Nigerian Army vs. Yela (2008) 7 – 12 S.C. page 35 @ 48 – 50, the averments of Tabai, JSC.
“It is settled law that, once a court has given a final decision on a matter placed before it for adjudication, it becomes functus officio and is precluded from receiving or varying the form of the judgment or order apart from the correction of clerical mistakes or accidental slips. This principle has been explained in several cases.
Firstly, it is well settled that every judgment takes effect on pronouncement. This principle was articulated in Intercontractors Nigeria Ltd. vs. U.A.C. of Nigeria Ltd. (1988) 1 N.S.C.C. 737 @ 752; Bank of West Africa vs. N.I.P.C. Ltd. (1962) 1 LR 31; Olayinka vs, Elusanmi (1971) 1 NMLR 227. In the English case of Thynne vs, Thynne (1955) 3 ALL ER 129 @ 146, the Court of Appeal, per Morris LJ, stated the principle thus:
“Where a court has decided an issue and the decision of the court is truly embodied in some judgment or order that has been made effective, then the court cannot reopen the matter and cannot substitute a different recorded. Those who seek to alter must in those circumstances invoke such appellate jurisdiction as may apply. But if a case arises where in the interest of accuracy it seems desirable to amend some part of a judgment other than its operative and substantive point, it would seem to be regrettable if the inherent powers of the court were limited or confined.”
Quoting the same case at pages 142 – 143, Honson L.J. thus:
“Where the court has made the order it intended to make, the judgment must stand until set aside on appeal or by action brought for the purpose. The court cannot otherwise eat its own words simply because the evidence on which it acted is shown wrong or by accident. To amend the petition on which the decree was pronounced must make it appear as if the petitioner had presented a case different from that which was actually put forward at the hearing, judgment having been given, I think it is too late for such amendment.”

Learned counsel bemoaned that it was curious that the lower court conferred on itself the power of an appellate court by overruling itself and sought justification by relying on the case of Amaechi vs INEC.

Learned counsel for the Appellant submitted that the case of Amaechi vs. INEC is inapplicable to this instant matter, he argued that Amaechi’s case was on election matter and there was nowhere in the case of Amaechi that the Apex court or any court sat as an Appellate Court on its Ruling and the case of Amaechi being an election petition matter dwelling on substitution of a duly nominated candidate was at variance with the instant case which bothers on the statute of limitation.

The Appellants urged this court to hold that the lower court was wrong to have sat as an Appellate Court by reversing its own Ruling thereby assuming the functions of Appellate Court.

In reaction to Issue One (1), the learned counsel for the Respondent submitted that the argument by the Appellants that the lower court was wrong in holding that the suit was statute barred was a serious misconception of the law, he posited that a statute barred action affects the jurisdiction of the court and it can be raised at any time of the proceedings even in an appeal at the Supreme Court and once raised, it touches on the competence and legality of the trial court to the case. The Respondent recalled the case of Alhaji Abdullahi Atanda Kolawole vs. Alhaji Salami Adisa Olori (2010) ALL FWLR (Pt.514) 35 @ page 83 paras A: B where it was held thus:
“The plea of statute, of limitation is an issue in law and jurisdiction which can be raised by the Defendant in limine. If at the trial for instance, the counsel cites the law upon which the limitation is anchored, then the onus shifts to the Plaintiff to show the contrary that the suit is not caught by any limitation law.”

Citing further the case of Ekeocha vs. C.I. & P.S.B. (2002) ALL FWLR (Pt.392), 1976 @ 1986, paras G – B where it was held thus:
That the defence of an action being statute barred affects or involves the competence of the court to adjudicate on or jurisdiction to entertain the action, it can be raised at any stage of the proceedings so long as the parties would have the opportunity to be heard on same. See CPN Udoh Trading Co. Ltd. vs. Abere (supra) @ pages 133 – 134 which is a Supreme Court decision. It is wrong therefore for the Plaintiff/Appellant to argue that the 2nd Respondent did not plead the statute of limitation but merely raised it by preliminary objection. The decision of the Supreme Court and this court is that it is not necessary to plead any particular statute of the pleading it may be desirable, but not necessary or a condition precedent as a defence.”

He further relied on the following cases Anyanwu vs. Mabara (1992) 5 NWLR (Pt.242) 368 @ 398 paras C-H; CBN vs. Amao (supra) @ 1529, paras C – D; Eke vs. Ogonda (2007) ALL FWLR (Pt.351) 1456 @ 1473 paras G-H.

Furthermore, counsel argued that the parties in their pleadings actually pleaded facts on when the cause of action arose in their pleadings at the lower court. He stated that the Appellants at paragraph 20 of the Amended Statement of Claim (page 59 of the record) pleaded thus:
“That the Plaintiff avers that the Defendant was written to first on the 20th March, 1996 to furnish the Plaintiffs with the account balances of all the accounts pleaded as Defendant is served with the Notice to produce the original of the said letter.”

Paragraph 21:
The Plaintiff avers that sometimes in September, 2005 the Plaintiffs through their solicitors demanded for the payment of the totality of the sums deposited in the Plaintiffs domiciliary accounts with the defunct Cooperative Bank……”

Also that the Respondent in paragraph 7(e) of the Respondent’s Better, Further and Further Amended Statement of Defence (page 53 of the record) pleaded thus:

“The Defendant avers that in-between 1998 and 1999 when Mr. Ariyo Ajaja who succeeded Chief Titus Olajide Olupitan was appointed Managing Director of the Defendant, the 2nd Plaintiff came physically to Ibadan office of the Defendant to demand for the payment of the money in the 1st Plaintiff’s domiciliary accounts and he was told by Mr. Ariyo Ajaja that the 1st Plaintiff had no money outstanding as credit balance in the Defendant’s account records, the response which infuriated and/or angered the 2nd Plaintiff and consequently threatened to sue the Defendant.”

And that the Appellants in response to the above averment pleaded at paragraph 19(ii) of the Plaintiff’s Reply to Defendant’s Better Further and Further Amended Statement of, Defence thus:
“When the Plaintiffs orally demanded for the funds by going to Ibadan, the then Managing Director of the Defendant (Cooperative Bank) in person of Mr. Ajaja told 2nd plaintiff that the domiciliary accounts did not exist and they were figments of the 2nd Plaintiff’s imagination.”

Paragraph 19(iii)
“That it was as a result of the above that the 2nd Plaintiff caused his counsel to formally demand for the payment of the funds which the Defendant ignored.”

Counsel for the Respondent drew the attention of this court to his observation that the Appellants cleverly avoided the dates in which the cause of action arose, both in their Amended Writ and Statement of Claim. But he stated that this was resolved at the trial by the parties while giving evidence of PW3, one Mrs. Modupe Olakunle (see page 99 of the record) and also via Exhibits ‘R’ and ‘S’ which are letters of demand in 1994 and 1996 respectively.

He submitted further that a demand could be made orally and that it was on record that the Appellants and Respondent are at ad idem on the following facts:
“a. That last formal letter of demand was written in 1996;
b. That the 2nd Appellant visited the Defendant office in 1998 to demand for the payment of the amount in the domiciliary accounts.
c. That based on the pleadings and evidence led at the lower court, the Appellants did not make any further demand for the payment of the amount in the domiciliary account until 2006, a period of eight (8) years interval.
d. That this suit was filed on the 4th of July, 2006.”

Counsel submitted that in action for recovery of debt as in this case, has a time limitation of six (6) years from when the cause of action accrues. He referred to Section 4, Ondo State Limitation Law and Kolo vs. First Bank of Nigeria Plc (2002) FWLR (Pt.116) 992 @ 1315 paras G.

In further defence on this issue, counsel cited the case of Forestry Research Institute of Nigeria vs. Mr. I.A. Enaifoghe Gold (2007) ALL FWLR (part 380) 1444 @ 1455 where the Supreme Court in a unanimous decision while considering the provisions of Order 25 Rule 6(i) of Oyo State High Court Civil Procedure Rules which is similar to Order 25 Rule 6(1) of the High Court, Court of Ondo State Civil Procedure Rules 1988 held that:
“There is no doubt that this rule connotes mandatory procedure, but it does not preclude a party from raising the defence of statute of limitation at an appellate court, vide leave to do so even if he did not do so at the court of first instance, because such issue borders on fundamental issue of jurisdiction.”

Faulting the argument of the Appellants at paragraphs 3.13 – 3.14, page 12 to page 15 of brief that since the lower court had earlier ruled on 14th December, 2006 that the case was not statute barred, the learned trial Judge could no longer re-visit the issue in his final judgment, the counsel for Respondent submitted that the learned trial judge on page 182 of the record, held thus:
“It must be pointed out that the Ruling was based on the evidence available at the time which consisted of the statement of claim filed and the facts pleaded in the first place for their account balances on 20th March, 1996, subsequently through their solicitors in September, 2005 and finally on 22nd June, 2006, for the payment of accrued sums in the Plaintiff’s domiciliary account. The court then held that the letter from the Plaintiffs’ counsel alleged to have been written in September 2005 constituted a demand and that since the suit was filed on 4/7/2006; it was clearly within the limitation period.

However, during the trial of this case and has been demonstrated by the evidence of PW3 which found ample corroboration and is in fact supported by that of DW2, it has now been revealed that the first demand was indeed made between 1998 and 1999. In fact PW3 puts the year as 1998 under examination-in-chief and under cross examination.”

Counsel urged this court to uphold the reasoning of the learned trial Judge as encapsulated above also because the said Ruling of 4th December, 2006 was not a final judgment. Secondly, the Ruling was delivered upon the concealment of certain facts which was later revealed in the course of the proceedings at the lower court Counsel referred to the authority of Associated Discount House Limited vs. Amalgamated Trustees Limited (2007) ALL FWLR (PPt.392) 1871 @ 1840 paragraph C – F where it was held that:
“The Supreme Court as in the practice in other Superior Court record possesses inherent power to set aside its judgment in appropriate cases. Such cases are as follows:
i. When the judgment is obtained by fraud or deceit.
ii. When the judgment is a nullity such as when the court itself was not competent; or
iii. When the court was misled into giving judgment under a mistaken belief that the parties had consented to it; or
iv. Where judgment was given in the absence of jurisdiction or;
v. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate jurisdiction.”

Furthermore, the learned counsel submitted that contrary to the arguments contained in paragraphs 3.14 to 3.14 at pages 12 to 15 of the Appellants’ Brief that the lower court had become functus officio and no longer had the jurisdiction to revisit its order made on December 14, 2006 to the effect that the Appellants’ case was not statute barred does not have the support and/or backing of any of the five (5) grounds of appeal contained at pages 245 – 247 of the records and as such ought to be discountenanced. He stated that it was trite that issues for determination and/or consideration by any appellate court must originate from the grounds in the Notice of Appeal filed by the Appellants. See Punch (Nig.) Ltd. vs. Jumsum (Nig.) Ltd. (2011) 12 NWLR (Pt.1260) 162 @ 177 – 178, paras. F – C.

Counsel for the Respondent finally urged this court to discountenance the submissions of the appellants and uphold the judgment of the lower court that the suit is statute barred having not been filed within six years as provided by Section 4 of the Laws of Limitation of Ondo State.

RESOLUTION OF THE ISSUE WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT THE APPELLANTS’ SUIT WAS STATUTE BARRED WHEN SPECIAL DEFENCE OF STATUTE OF LIMITATION WAS NOT SPECIFICALLY PLEADED BY THE RESPONDENT AND THE LOWER COURT HAD EARLIER RULED THAT THE SUIT WAS NOT STATUTE BARRED.

In the instant case, the Writ of Summons is filed on the 4th July, 2006 and according to the Statement of Claim the cause of action arose on 20th March, 1996 (see para 20 on page 4 of the record of appeal), though in the cause of trial, PW3, in person of Mrs. Modupe Olakunle gave evidence that showed that the cause of action ripened sometimes in the year 1998, when an oral demand for the remittance of the 1st Appellant’s money with the Respondent was rebuffed.

Going by the extant Limitation Laws of Ondo State of Nig. Vol. 2 CAP 83, cited as Limitation Law, Laws of Ondo State 1976 Cap 61, part 2(4) 1 states thus:
“(1) The following action shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:
(a) Action founded on simple contract or tort
(2) Action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.”
A bank and customer relationship being contractual in nature is therefore captured in the above provision. The cause of action arose in 1996 (according to the Statement of Claim) and in 1998, going by the ipse dixit of PW3, the action was instituted in 2008. Now in applying the ordinary minus differential formulae in arithmetic gives 11/9 years respectively, either way the Appellants instituted this action at least 9 years after the knowledge of the existence of a cause of action by at least three (3) “offending” years.
Now, the question of limitation of actions is not a mere matter of practice and procedure alone but a matter of law as contained in the relevant statutes.
Therefore a plethora of cases have held that the effect of not commencing a law suit or judicial proceeding within the specified period is that such a claim will be extinguished after the time for commencing it has elapsed. Thus the claim or injury with the resulting damage or loss becomes, in the words of the Supreme Court “Otiose with defluxion lf time.” See Olutola vs. University of Ilorin (supra); Mercantile Bank (Nig.) Ltd. vs. Feteco (1998) 3 NWLR (Pt.540) 143 @ 157.

Now as to the poser by the Appellants that the defence of limitation was not specifically pleaded as provided for by Order 25 Rule 6(1)(2) which states thus:
“A party shall plead specifically any matter for example, performance release, any relevant statute of limitation, fraud or any fact showing illegality which, if not specifically pleaded might take the opposite by surprise.
2. Any condition precedent, the performance or occurrence of which is intended to be contested shall be distinctly specified in his pleading by the Plaintiff or the Defendant as the case may be; and, subject thereto, an averment of the performance or occurrence of all condition precedent necessary for the case of the Plaintiff or Defendant shall be implied in his pleadings.”

The Respondent having not specifically pleaded the defence of limitation, the Appellants contended that, it was late in the day for the lower court to avail him the relief sought under the defence of limitation.

My humble response to this is that it is matter of state policy that there be an end to litigations, this principle of law “INTEREST REIPUBLICAE UT SIT FINIS LITIUM” which means that (It concerns the State that there be an end of lawsuits), the objective of this principle is to among other things, avoid spurious litigations, and also to ensure that people who truly seek for justice should remain vigilant on the course in line with the maxim. VIGILANTIBUS ET NON DORMENTIBUS JURA SUBVIENUIT”, which means the law will aid the vigilant and not those who sleep on their right. Having said this, there is no gain saying that the issue of limitation is a substantial issue of law which removes the right of action, the right of enforcement and even the right of a judicial relief of those parties who have slept on their right. According to Niki Tobi, JCA (as he then was) in the case of Mercantile Bank (Nig.) Ltd. vs. Feteco (1998) 3 NWLR (Pt.540) 143 @ 157 thus:
“It has been held that a court of law does not have the competence to declare a statute of limitation a nullity on the so called ground that it does “technical justice,” that to me, is the hidden intention and ambition of the submission of learned counsel. To me a statute of limitation does vibrant, consistent and substantial justice and not technical justice.”
From the foregoing, it can be rightly said that the defence of limitation is a substantial issue that bothers on jurisdictional competence of the court to entertain a matter before it, but this averment is only to the extent that it is “properly raised” (Emphasis mine). By that I mean to say, it must be specifically pleaded in line with the provisions of Order 25 Rule 6(1)(2).
Some learned authors had this to say on this issue thus:
“For almost all caries there is a limitation period within which the proceedings must be issued…. .Once the limitation period has expired, the Defendant can set up as a full defence, though for it to inure in favour of the Defendant, the Defendant must specifically plead it.” (Emphasis; mine)
The above clearly shows that this right is a qualified right and the consequence of adhering; to this condition can only mean consent in line with the principle of “CONSENSUS TOLLIT ERROREM” consent removes mistakes. Also in the case of Buba Plc. Vs. BTL Industries Ltd. (2006) 19 NWLR (Pt 1013) 61 @ 106, paras F– H, the Supreme Court, held on this issue thus:
‘As this is a special defence which Appellant was raising for the first time in this court, we were urged to strike out this issue on grounds of incompetence, it being settled law that special defences must be specifically pleaded.
2. Ibrahim Kano vs. Gbadamosi Oyelakin (1993) 3 NWLR (Pt.282) 399 @ 404 paras D – F which states as follows:-
A defence which is a special defence and is available to the Defendant at the time of the action must be pleaded specifically; where it is not pleaded, it could not be raised on appeal.
In the instant case it is glaring from the records that these requirements were not fulfilled by the Respondent to qualify it for this avowed defence of limitation only for it to spring up in the court of trial, though the trial Judge and the Respondent adduced reasons for this, which however tenable does not suffice enough to change the legal position on this issue. Also see the cases of Ademolaju vs. Adenipekun (supra) Pt.450 paras C – D; Adenle vs. Olude (2002) 18 NWLR (Pt.799) 413 @ 434, paras G -‘A and F – H.

Flowing from the authorities cited above, my findings regarding Issue one (1) as formulated by the Appellants’ counsel ought to be and is indeed resolved in favour of the Appellant and against the Respondent.

The final issue which is Issue Two (2) reads:
Whether the lower court was right to have dismissed the claim of the Appellants in spite of the fact that the Appellants established by preponderance of evidence that it has proceeds of Cocoa Export in its domiciliary accounts and the Respondent failed to establish the actual amount it applied from the Appellants’ Domiciliary accounts to reduce the alleged indebtedness of the 1st Appellant to it.

It was the contention of the learned counsel for the Appellants that they entered into a Banker/Customer relationship with the Respondent and had two distinct domiciliary accounts with them (one in dollars currency and the other in pound sterling currency) in which various sums of money in the specified denomination were paid into it various times and was evidenced by receipt of notices of payments termed “Advice” from the Respondent to the Appellants. Counsel equally contended that the Respondents utilized their monies to their own ends without their authorization and failed to release the Statements of Accounts and only released same as Exhibits V1 – V8 and W1 – W2 which was manifestly defective.

The learned counsel submitted that the Respondent did not deny receipt of the monies claimed rather they contended to have utilized the said monies to satisfy the indebtedness of the Appellants without informing the Appellants of the rates of conversion applied.

The Appellants further contended that they tendered the notices of these payments into their domiciliary account which were in dollars and pound sterling and which notices emanated from the Respondent Bank. And indeed DW1 testified that cheques were used to withdraw these monies from the Appellants’ said domiciliary accounts to satisfy the Appellants’ alleged indebtedness but is however alarmed that these said cheques could not be found. The learned counsel posited that the burden of proof in civil cases lies on who assert a set of given facts, and this burden never shifts when the person who has the burden has proved the set of facts, on provisions of Section 133 of the Evidence Act and on the authority of the case of Dodo vs. Solanke (2006) 9 NWLR (Pt.986) page 447 @) 451.

Counsel further submitted that the oral evidence of PW1 and Exhibits A – G tendered by the Appellants at the lower court in proof of the payments received by the Respondent on behalf of the Appellants was sufficient and credible proof of evidence that the Respondent indeed received such amount of money claimed and relied on the authority of Orji vs. Dorji iles Mills & 3 Ors. (2009) 12 SC (Pt.III) 73 @ 87 paras 15 – 30 where the Supreme Court held thus.

“Section 87 of the Evidence Act, provides for the burden of proof in civil case. The burden of first proving the existence of fact lies on the party against whom the Judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. See Section 137(1). If such a party adduces evidence which ought reasonably to satisfy a court that the fact sought to be proved is established, the burden lies on the party against whom the judgment would be given of no more evidence were adduced; and so on successively until all the issues in the pleadings have been dealt with…..”

The learned counsel for the Appellants therefore contended that the trial Court was in grave error to have placed heavy reliance on Exhibit Z1 – Z16 and AA1 – AA6 in establishing the indebtedness of the Appellants which he said were mere application for loans and/or acknowledgement of indebtedness.

Furthermore, counsel contended that the question that ought to agitate the mind of the court was whether the Respondent led credible evidence at the trial court to conclusively prove that it applied the 1st Appellant’s fund in its possession to defray the 1st Appellant’s allege rd indebtedness to it. He referred to the averment of the learned trial Judge on page 232 of the record thus:

“In the absence of failure of the Defendant to produce and tender in court a comprehensive statement of account of the Plaintiffs with the Defendant showing, how funds granted to the 1st Plaintiff as loan to run its cocoa business were withdrawn by the Plaintiffs and how the proceeds of sales of cocoa exported were repatriated from abroad, converted into Naira with the rates of exchange stated and the subsequent amounts in Naira to the 1st Plaintiff s account, the mandate or the agreement referred to by the Defendant between it and the 1st Plaintiff on the running of the domiciliary account, it remains to be seen how well the Defendant has discharged the onus placed it with credible and cogent evidence.”

The learned counsel therefore submitted that it is clear from above that the Respondent failed to lead any credible evidence to prove that it had utilized the proceeds of the export of cocoa in the Appellants’ bank account to satisfy the indebtedness of the Appellants. Counsel further cited the authorities of WAEC vs. Oshionebo (2006) 12 NWLR (Pt.994) 258 @ 278 paras F – H; Arabambi vs. Advance Beverages Ind. Ltd. (2005) 19 NWLR (Pt.959) page 1 where it was held thus:
“Pleading is not synonymous with evidence and so cannot be considered as such in the determination of the merit or otherwise of a case. Thus, a party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleading, and where there is none, then the averments in the pleading are deemed abandoned. The same principle of law goes for whatever defence a Defendant seeks to rely on in the process of demolishing the case against him.”

Counsel queried the lower court for not fully verifying if the assertion of the Respondent had been sufficiently proved before reading it decision noting that no debit notices were issued to the Appellants nor any worthy statement of Account was tendered in evidence and exhibits V1 – V8 and W1 – W8 had been discredited. While admitting later to some indebtedness to the Respondent as evidenced by some of the admitted documents/exhibits wherein more loans were even solicited for, it was submitted by counsel that this was not enough to prove Appellants’ indebtedness to the Respondent let alone in proving that the monies had been used to defray the loans earlier advanced to the Appellants.

According to the counsel, the appropriate method to be employed in proving a customer’s indebtedness ought to be through the entries in its books. He cited the averment of Agbo, JCA in the case of Akanmu vs. Co-operative Bank Plc (2006) 2 NWLR (Pt.963) 82 @ 100 para E thus.

“The appropriate method used by a bank to establish the indebtedness of its customer is through the entries in its books.”

To buttress; his point, learned counsel for the Appellants further adumbrated the ratio in A.C.B. Plc. Vs. N.T.S. (Nig.) Ltd. (2007) 1 NWLR (Pt.1016) 596 @ 628 C.A. while relying on Allied Bank (Nig.) Ltd. vs. Akubueze (1995) 4 NWLR (Pt.390) 493 @ 503; British & French Bank vs. Opaleye (1962) 1 SCNLR 60 (1962) 1 ALL NLR 26; Greenhalgh (W.F.) & Sons vs. Union Bank of Manchester, (1924) 2 K.B 153.

While further querying that no specific amount of indebtedness was advanced from the Respondent nor documents to show how the disbursements of funds were made, to arrive at the N5 million figure were adduced by them, learned counsel admitted that the trial court was right in dismissing exhibits V1 – V8 and W1-W8, but however he submitted that it made a case for the Respondent on page 243 of the record thus:
“While it is part of the duties of a bank to grand credit/overdraft facilities to its customers, the customer is (sic) also duty bound to pay interest on borrowed/overdraft funds as agreed. The terms of contract between a bank and customer involve obligation on both sides which includes the promise to repay loans and overdraft facilities to the customer. See the cases of SIB Ltd. vs. Interdrill Nig. Ltd. (2007) ALL FWLR (Pt.366) 756, 775, para D. While the Plaintiffs are playing it down as if there is no obligation on them to repay the credit facilities granted them by the Defendant, the Defendant has through DW1, DW2 and DW4 testified that the Plaintiffs still owe them, a fact not disputed by the Plaintiffs.

Learned counsel countered that since no exact amount of indebtedness was stated by the Respondent, how could the court find the Appellants liable to repay credit facilities which were indeterminate. Yakubu vs. MWT Adamawa State (2006) 10 NWLR (Pt.989) 513 @ 546, paras F – H; Kalu vs. Uzor (2006) 8 NWLR (Pt. 981) 66 @ 89, para G; Igabele vs. The State (2006) 6 NWLR (Pt.975) 100 @ 119.

The Appellants urged this court to set aside the judgment of the lower court and allow this appeal.

The learned counsel for the Respondent in reaction to this issue submitted that a look at the Writ of Summons and Statement of Claim that commenced this present action shows that the reliefs sought are declaratory, he contended that it was trite that declaratory reliefs are not granted even on admission of the Defendant. He referred to Dumez Nig. Ltd. vs. Nwakhoba (2009) ALL FWLR (Pt.461) 842 @ 850 paras F – G where it was held that “the plaintiff must plead and prove his claim for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant. The burden of proof on the Plaintiff in establishing a declaratory relief to the satisfaction of the Court is quite heavy in the sense that each declaratory reliefs are not granted even on admission by the defendant where the Plaintiff failed to establish his entitlement to the declaration by his own evidence. In the instant case the trial court rightly refused the relief sought by the Plaintiff when they were not proved.

Counsel submitted that the civil case is decided on the balance of probabilities. A judge whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on an imaginary scale. He will then see which is heavier not by the number of witnesses called by each party but the quality or probative value of those witnesses. This was exactly what the learned trial judge had done before dismissing the claims of the appellants.

Learned counsel contended that it was not in doubt that a banker/customer relationship existed between the 1st appellant and the Respondent. Also that it was not to doubt that the 1st appellant requested and was granted at various times credit facilities by the respondent for the purchase of cocoa for export. Also that it was on the record of the Lower court (at page 211 of the record of appeal) that the appellants vide Exhibit Z1 dated 15th July 1998 stated thus:
“As collateral for the revolving credit facilities of N10 million; JOFEC limited will arrange that payment of all exported proceeds be documented with the Cooperative Bank Limited Owo. In addition, the produce on floating asset will be pledged to Cooperative Band. The company will also offer 3.5 hectares of land – proposed headquarters of the company. The managing director and other directors are also prepared to guarantee the credit facilities both in official and private capacities.”

To buttress their point learned counsel for the Respondent further adumbrated the ratio in Okonkwo V. Cooperative and Commerce Bank (Nig.) Plc (2003) FWLR (Pt.154) 457 at 489 Paras. G-H thus:
“Where a relationship between the parties is contractual and governed by a deed, extrinsic evidence will generally not be acceptable to vary the terms agreed upon.”

Page 491 paragraph C went thus:

“that persons of full age and sound mind are bound by my agreement lawfully entered into by them.”

Counsel therefore submitted that since it was not in doubt that the 2nd appellant was of full age and of sound mind at the time of writing the above (Exhibit 21) which was a consent, consenting that at all material times that the proceeds from that exports should be utilized towards defraying any indebtedness and thereby creating a lien, then why is he deviating from the mutual agreement.

Furthermore, counsel contended that the respondent had been able to satisfactorily adduce admitted evidence to show that the proceeds were indeed used to defray the appellant’s indebtedness to the respondent.

Counsel posited that the Learned Trial Judge while exhaustively considering the Exhibits 21 to 216 (letters of correspondence between the parties) found (on page 218 of the record of appeal) Exhibit 214, which was the letter from the appellants to the respondent dated 7th February 1985 thus:
“This is a clear conferment and indication that as at 7th February 1995, there was no argument as to the position of the accounts of the 1st plaintiff and the defendant, the transaction between them as regards cocoa export business was carried out in all accounts owned by the Plaintiffs with the defendant, as indicated in the title of the letter.”

Further to this, the learned counsel while reproducing the averment of the learned trial judge on page. 219 – 220 of the record in resection to Exhibit 215 dated 28th Sept. 1995 thus:
”I have no doubt in my mind that if indeed the situation is as pointed by the Plaintiffs in their pleading and as well as in their testimony in Court, the alleged outstanding sums of money standing to the credit of the 1st Plaintiff in its domiciliary account with the defendant would have taken the front burner in this letter written by the learned senior counsel to the defendant”

Learned counsel therefore submitted that Exhibits 21 to 215 contained admission of the indebtedness of the appellants to the Respondent.
While contending that the cases of Allied Bank (Nig) Ltd V. Akubueze (1995) 4 NWLR (Pt 390) 493 at 503; Britts & French Bank V. Opaleye (1962) 1 SCNLR; (1962) 1 All NLR 26 And Greenhalgh (WF) & Sons V. Union Bank Of Manchester were not in pari materia to this instant case, the learned counsel subsequently’ urged this Court to uphold the findings of the Lower Courts.

RESOLUTION OF THE ISSUE: OF WHETHER THE LOWER COURT WAS RIGHT TO HAVE DISMISSED THE CLAIM OF THE APPELLANTS INSPITE OF THE FACT THAT THE APPELLANTS ESTABLISHED BY PREPONDERANCE OF EVIDENCE THAT IT HAS PROCEED OF COCOA EXPORT IN ITS DOMICILIARY ACCOUNTS AND RESPONDENT FAILED TO ESTABLISH THE ACTUAL AMOUNT IT APPLIED FROM THE APPELLANTS DOMICILIARY ACCOUNTS TO REDUCE THE ALLEGED INDEBTEDNESS OF THE FIRST APPELLANT TO IT.

As rightly held by the Respondent declaratory reliefs are species of reliefs that places; heavy burden on the seeker, a burden so enormous that for it to warrant a discharge, the plaintiff must plead and prove his claims on the evidence adduced by him solely, without recourse on the evidence called by the defendant, even on admission.

The Appellants apart from relying majorly on the tendered Exhibits A-G which were the notices of payments in dollars and pound sterling, they sought to build their case seemingly on any loophole of the Respondent’s case and this in my humble opinion is not enough to grant the reliefs sought.

In fact the Exhibits A-G they placed heavy reliance upon, at best shows there was some sort of Banker/Customer relationship that had, at best existed between the two parties most probably when the times were good and nothing more.

The crux of the entire matter is that the Appellant claims the Respondent’s indebted to the 1st Appellant, however, in line with the principle that ‘He who asserts must prove’ I am yet to see how this burden of proof has been discharged by the asserter rather it has been the other case around. For instance a gloss at the oral evidence and documentary evidence before the lower Court.

On page 97 para 4, PW2 had this to say:
“I am aware that the 1st plaintiff enjoyed credit facilities during the period of 1993 – 1995 from the defendant”

Corroborating this was the averment of PW3 on page 101 para 3 thus:
“I do not know the years, but I am aware that the 1st plaintiff borrowed money from the defendant to run this cocoa business”

These snippets of information which shows that there was some form of loan facility enjoyed by the Appellant at the expense of the Respondent cannot be glossed over by the learned trial judge and it preponderate the fact finding mission supported by facts in favour of the respondent naturally enough.

Moreso, curiously on page 215; Exhibits Z10 and Z11 dated 13th February 1996 which were letters of indebtedness and assistance for more loans were never contradicted by the Appellants even as their effect was to raise presumption of the true state of affairs between the two parties as at date stated, which is to the effect that rather than being owed by the Respondent, it was the other way round.

In the light of the foregoing, when all these facts supported by evidence are placed on an imaginary scale, it ought and indeed did tilt towards the case for the Respondent.

I need not go further on the rationality or otherwise of a party acknowledging indebtedness to the extent of putting it in writing when he is of the firm belief, he’s the one being indebted to, and worse still being unable to proffer logical reasons for such an action, however it is not the duty of this court to embark on speculations, the duty of the trial courts is to gather facts backed by evidence and to evaluate them, our duty is to rehear and can only interfere where the decisions reached are perverse and this in my humble opinion cannot be said of the decision of the lower court. That is not to say that the appellant may not have a good case, it may just be that it is lacking in proof according to the requirement of the law, because the law is indeed grounded on facts.

Consequently I call upon the Respondent – Skye Bank as a banking institution to look inwards and see if in conscience there has been a miscarriage of justice or any fraudulent act on its part that necessitates them in good faith making a restitution to the Appellants who may have a good base that is bereft with loopholes, and since there are loopholes in the Appellants’ case at the lower court, this court can only act or deliberate on facts which are before it.

The case for the Appellant is therefore bereft with so many loopholes that I need not go further than this; I accordingly resolve this issue in favour of the Respondent and against the Appellants.

In conclusion, I hold that the appeal lacks merit and is hereby dismissed. The judgment of the High Court of Ondo State sitting in Owo Judicial Division in Suit No: HOW/21/2006 delivered on 16th day of January 2009 by Honourable Justice A.O. Adebusoye is hereby upheld. There’s no award as to cost.

MOHAMMED A. DANJUMA, J.C.A.: I agree.

JAMES SHEHU ABIRIYI, J.C.A.: I agree.

Appearances

Adetayo Adeyemo Holding brief for A.U. MustaphaFor Appellant

AND

Abiola Olagunju Esq.For Respondent