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TOUNGO LOCAL GOVT v. WEMA BANK PLC (2021)

TOUNGO LOCAL GOVT v. WEMA BANK PLC

(2021)LCN/15669(CA)

In the Court of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, November 29, 2021

CA/YL/101/2019

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

TOUNGO LOCAL GOVERNMENT APPELANT(S)

And

WEMA BANK PLC RESPONDENT(S)

 

RATIO

THE ESSENCE OF THE ADAMAWA STATE LOCAL GOVERNMENT EDICT 1994

Section 186 of the Adamawa State Local Government Edict, 1994 provides thus: –
“When any suit is commenced against local government for any act done in pursuance of execution or intended execution of any law public duty or authority or in respect of any alleged neglect or default in the execution of such law, duty or authority, such shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of in the case of a continuance of damage or injury within six months after ceasing thereof.”
The essence of this legislation by the Adamawa State Legislature is to provide protection for any act done by the local government in pursuance of execution or intended execution of any law or of any public duty or in respect of any alleged neglect or default in the execution of such law, duty or authority. Any suit filed against the local government must be commenced within six months next after the act. This provision is in pari materia with the Public Officers Protection Act.
A literal interpretation of this Section would reveal that the suit instituted must have arisen from “any act done in pursuance of execution or intended execution of any law or of any public duty or authority or in respect of any alleged neglect or default in the execution of such law duty or authority…” This provision does not envisage issues of contract entered into between the local government and an individual or a financial institution as in the instant case, and I so hold. In BUREAU OF PUBLIC ENTERPRISES V. REINSURANCE ACQUISITION GROUP LIMITED & ORS (2008) LPELR – 8560 (CA) this Court per PETER-ODILI, JCA (now JSC) held at page 38 thus: –
“The provision of the Public Officers Protection Act was not intended by the legislature to apply to contract. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done. FGN V. Zebra Energy Ltd (2002) 18 NWLR {Pt. 798} 162 at 196 per Mohammed JSC.” PER SANGA, J.C.A.

WHETHER OR NOT FOR A PARTY TO RAISE AND RELY ON STATUTE OF LIMITATION, IT MUST BE PLEADED

It is trite law that for a party to raise and rely on statute of limitation it must be pleaded. This is because being a special defence, it cannot be raised for the first in this Court without leave being first sought and obtained. In FORESTRY RESEARCH INSTITUTE OF NIGERIA V. MR. I. A. ENAIFOGHE GOLD (2007) LPELR -1287 (SC), the apex Court held thus: –
“There can be no doubt that there are conditions that guide the application of this law and similar legislation indeed in order to be given the protection. One such fundamental condition is that being a special defence, under our rules, it must be pleaded and proved by the Respondent/Appellant.”
Also in ABIMBOLA GEORGE & ORS V. DOMINION FLOUR MILLS LIMITED (1963) LPLER -15458 (SC) the Supreme Court held thus: –
“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard but a party cannot be expected to prepare for the unknown and the aim of pleading is to give notice of the case to be met which enable either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues but the cardinal point is the avoidance of surprise.” Per BAIRAMIAN, JSC at pages 9 – 10 paragraphs A-F.
PER SANGA, J.C.A.

CONDITIONS THAT MUST BE COMPLIED WITH BEFORE A COMPUTER GENERATED EVIDENCE CAN BE ADMITTED IN EVIDENCE

That the document is a computer generated evidence as envisaged by Section 84 of the Evidence Act and the law prescribes certain conditions that must be complied with before such kind of document can be admitted in evidence. Cited OMISORE V. AREGBESOLA (2015) 15 NWLR {Pt. 1482} S.C. 205. That since the legal requirements for admitting such documents in evidence were not observed by the lower Court the said document is legally inadmissible and it is immaterial whether counsel to the Appellant objected to its admissibility or not. That it is the duty of the Court to ensure that proper procedure was followed while admitting the document and even if the document is admitted in error the Court ought to expunge same from its record. That since the document was admitted through PW1 who is not the maker of the said Exhibit D4, it “amounts to documentary hearsay” which is inadmissible as it lacks probative value. Cited LADOJA V. AJIMOBI (2016) 10 NWLR {Pt. 1519} SC 87 at 146 – 147. PER SANGA, J.C.A.

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Respondent as Plaintiff instituted this Suit No. ADSY/32/2015 before the High Court of Justice Adamawa State Yola Judicial Division, Nathan Musa J., presiding via a Writ of Summons and a Statement of Claim dated 15/9/2015 containing 63 paragraphs against the Appellant as Defendant seeking for the following reliefs:
a) The sum of N80,368,426.94 (Eighty Million, Three Hundred and Sixty-Eight Thousand, Four Hundred and Twenty Six Naira, Ninety-Four Kobo) being the total balance due and outstanding from the Defendant to the Plaintiff as at 7th April, 2011 arising from an accumulation of the outstanding balance on the N20 Million Overdraft Facility dated granted (sic) by the Plaintiff on 24th December, 2007 and 11th February, 2008 to the Defendant but which remains unpaid in spite of repeated demands.
b) Interest at the rate of 21% per annum from 1st of May, 2011 till date of the judgment and thereafter at the rate of 10% per annum of the judgment sum from the date of the judgment until final liquidation.
c) Cost of this suit. (pages 3 – 13 of the record of appeal). Upon being served with the originating process of the Plaintiff, the Defendant filed a Statement of Defence dated 10th February, 2016 denying all liabilities and urged the lower Court to dismiss the entire claim of the Plaintiff for lacking in merit. (pages 88 – 103 of the Records).

Upon being served with the Defendant’s Statement of Defence, the Plaintiff filed a Reply to Statement of Defence dated 31st March, 2016 at pages 126 – 131 of the record of appeal.

The matter then proceeded to hearing. On 9th day of June, 2016, one Abudun Aminu entered the witness box and testified as PW1. On 26th October, 2016 he adopted his statement on oath and tendered in evidence the documents marked as Exhibits ‘A1’, ‘A2’, ‘B1’, ‘B2’, and ‘C’ respectively. The learned trial Judge then adjourned the matter to 24/11/2016 to enable learned counsel agree on the documents to be tendered from the bar by consent. However, it was on 15/6/2017 that the following documents were tendered from the bar: –
1. The letter dated 4th December, 2007 titled continuous domiciliation of payment.

2. A letter dated 4th December, 2007 titled “Council extract”.

3. A letter dated 4th December, 2007 headed “Application for credit facility”.
4. Statement of account of Defendant at Plaintiff.
5. Letter dated 15/1/2009 titled “Re: Position of Toungo L.G.A Council Project Account”.
6. Letter dated 18/5/2009 headed “Re: Position of Toungo L.G. account with WEMA BANK Plc. Yola”.
7. Letter dated 23/12/2009 titled “Re: Taking over of indebtedness by the State Government.
8. Letter dated 31/12/2009 headed ”Request for extension of our facilities Toungo L.G. Council account No. 1111092905713”.
9. Letter dated 25/1/2010 titled “Re: Position of Toungo L.G. Council account with us”.
10. Letter dated 19/2/2010 headed “Re: Outstanding Indebtedness to Wema Bank- request for interest waiver N21,669,803”.
11. Letter dated 4/3/2010 headed “Re: Outstanding of N93,562,346.96k”.
12. Letter dated 12/3/2010 headed “Re: Outstanding Indebtedness of N93,562,346.96k”.
13. Letter dated 29/4/2010 headed “Re: Outstanding Indebtedness of N93,562,346.96k”.
14. Letter dated 1/7/2010 titled “Re: Outstanding indebtedness.
15. Letter dated 18/6/2010 headed “Re: outstanding indebtedness in Wema Bank by your Local Government Final demand notice”.
16. A letter dated 4/8/2010 headed “seven days notice of intention of proffering a criminal charge of issuance of dud chaque against the Chairman, Director of Finance, Director Personnel Management Toungo Local Government”.
17. A letter dated 12/8/2010 is headed “Re: Seven days notice of intention of proffering a criminal charge of issuance of dud chaque against the Chairman, Director of Finance, Director Personnel Management Toungo Local Government”.
18. A letter dated 12/11/2010 headed “Liquidation of Toungo Local Government Zonal Account No. 1111092905713”.
19. Letter dated 23/11/2010 headed “Re: Liquidation of Toungo Local Government Zonal Account No. 1111092905713”.
20. A document containing photocopies of seven in number chaques of First Bank Plc.
21. A letter dated 20/6/2011 headed “Indebtedness to Wema Bank Plc. No. 19 Aliyu Mustapha Way, Yola – Re: Pre-action notice”.
22. A letter dated 5/12/2007 headed “Notification of opening of bank account”.
23. A letter dated 20/10/2010 headed “Request for statement of account and debit advice Toungo Local Government account”.
24. A letter dated 28/11/2007 headed “Letter of Introduction”.
25. A letter dated 19/10/2010 headed “Re: appointment of Nwakaibie Okagbue & Co. Chartered Accountant to reconcile Toungo Local Government account with your bank.”

The 25 documents which are tendered from the bar by consent of parties were admitted and marked seriatim as “D1 – D25” respectively.

The following documents were also tendered and admitted in evidence through PW1:
26. Document titled “Payment Order” on Defendant’s headed paper addressed to Branch Manager of First Bank, Ganye Branch, signed by Director of Finance of the Defendant marked as Exhibit ‘E’.
27. Letter dated 9/4/2008 on Defendant’s headed paper marked as Exhibit ‘F’.
28. Letter dated 20/2/2009 on Defendant’s headed paper marked as Exhibit ‘G’.
29. Photocopy of Bank PHB cheque marked as Exhibit ‘J’.

Learned counsel to the Defendant then cross-examined the witness on 21/6/2017. Learned counsel to the Plaintiff then closed their case (testimony of PW1 is at pages 346 – 361 of the Record of appeal).

The Defendant counsel called their sole witness into the witness box on 6th November, 2017. He is Suleiman Ahmad the Director of Finance of the Defendant. He adopted his written deposition on oath (pages 105 – 112 of the Records). Thereafter he tendered the following documents in evidence: –
A. Deposit Slip No. 224892 dated 4/4/2008 Exhibit ‘K’.
The following five documents were admitted by consent of counsel from the bar. They are Wema Bank Plc deposit slips which were marked as follows: –
B. Deposit Slip No. 224891 was marked Exhibit ‘K1’.
C. Deposit Slip No. 2170104 was marked Exhibit ‘K2’.
D. Deposit Slip No. 1208123 was marked Exhibit ‘K3’.
E. Deposit Slip No. 0008682 was marked Exhibit ‘K4’.

  1. Deposit Slip No. 3060532 was marked Exhibit ‘K5’.

    Learned counsel to the Plaintiff cross-examined DW1. During cross-examination one document was tendered through DW1 by learned counsel to the Plaintiff and marked as follows:
    G. Letter written by DW1 to counsel to the Plaintiff dated 22/7/2011 was marked as Exhibit ‘K6’.

    Learned counsel to the Defendant closed their defence (testimony of DW1 is at pages 362 – 367 of the Records). Written addresses were ordered to be filed and exchanged and matter was adjourned to 22/1/2018 for adoption. Judgment was delivered by learned trial Judge on 19th November, 2018. (pages 371 – 384 of the Records).

    In his finding, the learned trial Judge adopted the four issues formulated by learned counsel to the Plaintiff and adopted by learned counsel to the Defendant and reached the following decision: –
    “On the whole, I wish to say that I wholly agree with the submission of counsel to the Plaintiff on all the four issues formulated for determination. Accordingly, claims of the Plaintiff succeed. I shall now pronounce and order as follows: –
    1. The Defendant Toungo Local Government Council is owing the sum of N80,368,426.94 being the total balance due and outstanding from the Defendant to the Plaintiff as at 7th April, 2011 arising from an accumulation of the outstanding balance on the N20 Million overdraft facility granted by the Plaintiff to the Defendant on 24th December, 2007 and 11th February, 2008 which remain unpaid despite repeated demands.
    2. Interest at the rate of 21% per annum from 1st May, 2011 till the date of judgment sum (sic) is liquidated.
    3. Cost of this action which is assessed at N300,000.00k.”

    This decision aggrieved the Defendant. It filed a Notice of Appeal containing five grounds of appeal on 4th February, 2019 wherein it urged this Court to issue an order allowing the appeal and setting aside the judgment of the trial Court delivered on 19/11/2018.

    Records of appeal was compiled and transmitted to this Court on 24/5/2019 but deemed properly compiled and transmitted on 10/10/2019. The Appellant’s brief was settled by D. I. Kulthu, S.C. II, Attorney General’s Chambers, Ministry of Justice Yola, Admawa State. It was filed on 8/10/2020 but deemed as properly filed and served on 24/6/2021. Learned counsel to the Appellant formulated three issues for determination thus: –
    1. Whether the action filed by the Respondent against the Appellant at the trial Court is not statute barred having regards to Section 186 of the Adamawa State Local Government Edict 1994 (Ground 1).
    2. Whether the Respondent has led credible evidence to be entitled to the reliefs sought (Grounds 2 and 3).
    3. Whether the failure of the trial Court to make a finding in respect of issue two does not amount to a breach of fair hearing and a miscarriage of justice (Ground 4).

    The Respondent’s brief was prepared by E. O. Tela Esq., learned counsel to the Respondent slightly reframed the issues canvassed by the Appellant as follows: –
    1. Whether the action filed by the Respondent against the Appellant at the trial Court is statute barred having regard to Section 186 of the Adamawa State Local Government Edict 1994. (Ground 1).
    2. Whether the Respondent has led credible evidence to be entitled to the reliefs sought (Grounds 2 & 3).
    3. Whether the failure of the trial Court to make a finding in respect of issue three does not amount to a breach of fair hearing and a miscarriage of justice (Ground 4).

    BRIEF FACTS OF THE CASE
    Before delving into the submission by counsel, it is apt at this stage to state the facts in brief that gave rise to filing this suit. The Plaintiff and the Defendant maintained a banker/customer relationship at Plaintiff’s Yola Branch since 2007 where the Defendant maintains two accounts to wit: Current Account/Overdraft Account No. 1111092905713 and Term Loan Account No. 1118092905718. The signatories to the two accounts are: –
    1. Damian J. Labai – Chairman 
    2. Alhaji Abubakar Namada- Secretary 
    3. Alhaji Usman B. Ribadu – Director Finance
    4. Masilala A. Inita – Director, General Services & Admin

    By a letter dated 4/12/2007, the Defendant applied to the Plaintiff for a Revolving Overdraft Facility of N30 million and a Term Loan of N25 million to enable the said Defendant “pay staff salary as at when due and execute some developmental projects in the next sixty days”. The letter was signed by the Chairman (page 16 of the records). A council extract accompanied the letter signed by the Secretary Alh. Abubakar Namada. (page 17 of the Records). Another letter titled “Continuous Domiciliation of Payments” also signed by the Secretary accompanied the application. On 24/12/2007, the Plaintiff offered the Defendant a N20 million overdraft facility and N25 Million Term Loan Facility with a 21% interest on both facilities. (pages 19 – 20 of the Records). The Defendant accepted the terms and conditions as enunciated by the Plaintiff. The Defendant’s account was financially buoyant since inception as the domiciliation of monthly allocation was duly complied with. Therefore it paid up the loans thus paving way for the Defendant to apply for the renewal of the N20 Million Overdraft Facility via an application dated 11/2/2008 to “cater for important and urgent expenses”. (pages 31 – 32 of the Records). Same was accepted by the Executive Members of Toungo Local Government Council – Adamawa State. (page 33 of the Records). It is this second tranche of the overdraft facility that led to the dispute between the parties. The Defendant at paragraphs 49 – 50 of its Statement of Defence denied taking another loan facility from the Plaintiff. Several correspondences were exchanged not only between the parties but also to the Central Bank of Nigeria, Union Bank Plc, First Bank Plc and the Hon. Commissioner, Ministry of Local Government & Chieftaincy Affairs, Yola.

    The Defendant was unable to pay back the loan. Meanwhile interest of 21% per annum kept rising making the initial overdraft facility of Twenty Million Naira to reach the amount in dispute of N80,368,436.94 as at 7/4/2011. On 20/6/2011, the Plaintiff sued and served on the Defendant a pre-action notice which was acknowledged by the Defendant on 22/7/2011. The Plaintiff then commenced this suit.

    In determining this appeal, I will adopt the issues as canvassed by the Appellant. Issue 1 is: –
    Whether the action filed by the Respondent against the Appellant at the trial Court is not statute-barred having regards to Section 186 of the Adamawa State Local Government Edict 1994.

    In his submission, while arguing this issue, learned counsel to the Appellant contended that this action instituted by the Respondent is belated as it was filed outside the statutorily provided period of six months within which they are required to commence an action. Learned counsel cited and quoted Section 186 of the Adamawa State Local Government Edict of 1994. That the Respondent failed to comply with the mandatory provision of the 1994 Edict since the cause of action in this matter arose more than six months before this suit was filed on 18/9/2015. That a cause of action is said to be statute-barred if proceedings cannot be brought because the period laid down by the Limitation Law has elapsed. Cited the Supreme Court authority of ELABANJO V. DAWODU (2006) All FWLR {Pt. 328} S.C. 604 at 654.

    That the learned trial Judge was in error when he failed to consider Section 186 of the Adamawa State Local Government Edict, 1994which provides for the limitation of action against the Local Government. That he rather deviated and relied on Order 24 Rule 1 of the Adamawa State High Court (Civil Procedure) Rules, 2013 which provided for the abolishing of demurrer. That the 1994 Edict superceed the Civil Procedure Rules of 2013 as held in ELABANJO V. DAWODU (Supra) where the apex Court held thus: –
    “Mandatory rules of Court are not sacrosanct as mandatory statute or an Act as such rules of Court cannot override statutory provision.”

    Learned counsel urged the Court to resolve this issue in favour of the Appellant.

    In his submission on this issue, learned counsel to the Respondent quoted Section 186 of the Adamawa State Local Government Edict 1994 and submitted that upon a proper reading of the above section it is clear that the suit envisaged must have arisen from the execution or intended execution of any law or public duties. That the provision does not cover issues of simple contract entered into between the local government and financial institutions as in this suit. That looking at the Writ and Statement of Claim, none of the facts constituting the claims and cause of action falls within the ambit of the situation enumerated in Section 186 of the Adamawa State Local Government Edict 1994. Learned counsel referred to paragraph 2 of the Appellant’s Statement of Defence at page 88 of the Records.

    Learned counsel also submitted that it is trite law that a party intending to raise or rely on the defence of the Limitation Law must specifically plead same otherwise the defence, being a special one, will not avail him. That the reason for this principle is to be found in the rules of pleadings the intent of which is to give notice to the other party so as not to take him by surprise. Cited KETU V. ONIKORO (1984) 10 SC 265 at 267, FORESTRY RESEARCH INSTITUTE OF NIGERIA V. MR. I. A. ENAIFOGHE GOLD (2007) 11 NWLR {Pt. 1055} 1 at 29, GEORGE & ORS V. DOMINION FLOUR MILLS LTD (1963) 1 All NLR 71 to 77. Learned counsel also referred the Court to Order 24 Rules 1 and 2 and Order 25 Rule 4(1) of the High Court (Civil Procedure) Rules 2013 on demurrer which was abolished not only at Adamawa State but in the corpus of Nigerian Laws. That the learned trial Judge was right when he held that the Appellant having not pleaded the defence of limitation being a special defence cannot raise it in his address.

    Learned counsel to the Respondent submitted that Section 186 of the Adamawa State Local Government Edict 1994 referred to “the case of a continuance of damage or injury within six months after ceasing thereof”. That the Appellant was served with a pre-action notice which it acknowledged receipt of, made a commitment to pay off the debt it owed the Respondent and pleaded for more time to August, 2011 to settle the debt and even enclosed a N1 million cheque as a sign of good faith. Thus giving rise to a continuing cause of action. Cited this Court’s decision in MERCANTILE BANK (NIG) LTD V. FETECO (NIG) LTD(1998) 3 NWLR {Pt. 540} 143 at 157 – 158. Learned counsel to the Respondent also distinguished the authority cited and relied upon by learned counsel to the Appellant of ELABANJO V. DAWODU (2006) All FWLR {Pt. 328} S.C. 604 at 654 which held that rules of Court cannot override statutory provisions. That the facts in that case are not on all fours with this case. He urged the Court to hold that the suit instituted by his client at the lower Court is not statute barred and to resolve this issue in favour of the Respondent.

    FINDING ON ISSUE 1: 
    Whether the action filed by the Respondent against Appellant at the trial Court is not statute-barred having regards to Section 186 of the Adamawa State Local Government Edict, 1994.

    Section 186 of the Adamawa State Local Government Edict, 1994 provides thus: –
    “When any suit is commenced against local government for any act done in pursuance of execution or intended execution of any law public duty or authority or in respect of any alleged neglect or default in the execution of such law, duty or authority, such shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of in the case of a continuance of damage or injury within six months after ceasing thereof.”
    The essence of this legislation by the Adamawa State Legislature is to provide protection for any act done by the local government in pursuance of execution or intended execution of any law or of any public duty or in respect of any alleged neglect or default in the execution of such law, duty or authority. Any suit filed against the local government must be commenced within six months next after the act. This provision is in pari materia with the Public Officers Protection Act.
    A literal interpretation of this Section would reveal that the suit instituted must have arisen from “any act done in pursuance of execution or intended execution of any law or of any public duty or authority or in respect of any alleged neglect or default in the execution of such law duty or authority…” This provision does not envisage issues of contract entered into between the local government and an individual or a financial institution as in the instant case, and I so hold. In BUREAU OF PUBLIC ENTERPRISES V. REINSURANCE ACQUISITION GROUP LIMITED & ORS (2008) LPELR – 8560 (CA) this Court per PETER-ODILI, JCA (now JSC) held at page 38 thus: –
    “The provision of the Public Officers Protection Act was not intended by the legislature to apply to contract. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done. FGN V. Zebra Energy Ltd (2002) 18 NWLR {Pt. 798} 162 at 196 per Mohammed JSC.”

    Upon considering the Writ of Summons and Statement of Claim of the Respondent at pages 3 – 13 of the Records, it is clear that none of the facts constituting the claims and cause of action in this suit falls within the ambit of the situation provided in Section 186 of the Adamawa State Local Government Edict, 1994. 

The fundamental object of the Limitation Statute is to require diligent prosecution of known claims, thereby providing finality or predictability in legal affairs, it is also to ensure that claims will be resolved while evidence is reasonably available and fresh. SeeBRAWAL LINES LTD V. DEE-DAMOR DEV. CO. LTD. (2015) LPELR -24515 (CA)

It is trite law that for a party to raise and rely on statute of limitation it must be pleaded. This is because being a special defence, it cannot be raised for the first in this Court without leave being first sought and obtained. In FORESTRY RESEARCH INSTITUTE OF NIGERIA V. MR. I. A. ENAIFOGHE GOLD (2007) LPELR -1287 (SC), the apex Court held thus: –
“There can be no doubt that there are conditions that guide the application of this law and similar legislation indeed in order to be given the protection. One such fundamental condition is that being a special defence, under our rules, it must be pleaded and proved by the Respondent/Appellant.”
Also in ABIMBOLA GEORGE & ORS V. DOMINION FLOUR MILLS LIMITED (1963) LPLER -15458 (SC) the Supreme Court held thus: –
“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard but a party cannot be expected to prepare for the unknown and the aim of pleading is to give notice of the case to be met which enable either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues but the cardinal point is the avoidance of surprise.” Per BAIRAMIAN, JSC at pages 9 – 10 paragraphs A-F.

Section 186 of the Adamawa State Local Government Edict, 1994 also provides, inter alia, that: “in the case of a continuance of damage or injury within six months after ceasing thereof”. 

On 20/6/2011, counsel to the Respondent issued a Pre-Action Notice to the Appellant (pages 65 – 67 of the Records). Same was acknowledged by the Appellant on 22/7/2011 wherein it pleaded for more time (to August, 2011) to pay off the debt it is owing the Respondent. The Appellant even enclosed a cheque for the sum of N1 million to appease the Respondent (pages 68 – 69 of the Records). 

It is my finding that the undertaking by the Appellant to settle the debt it is owing the Respondent creates a continuing damage or injury to the said Respondent which persists until the Appellant liquidates its debt. Thus an acknowledgment of a debt or any part payment creates a continuance of action. In S & Y NIGERIA LTD & ORS V. ASSET MANAGEMENT CORPORATION OF NIGERIA (2020) LPELR (CA) this Court per ABIRU, JCA held thus:
“The facts of this case show that subsequent to the purchase of the debts of the Appellants by the Respondent as an eligible bank asset from Unity Bank Plc, it wrote to the Appellants demanding for the repayment of the debt and consequent on which the parties entered negotiations. The records show that in the course of the negotiations, the Appellants wrote letters wherein they acknowledge their indebtedness and made promises to repay… Where there has been an admission of liability during negotiation and all that remains is the fulfillment of the agreement, the law is that it cannot be just and equitable that the action would be barred after the statutory period of limitation giving rise to the action if the defendant were to resile from the agreement during the negotiation. In other words, where there has been an admission of liability the right of action is revived… Such admission of liability creates or establishes a fresh cause and revives a right of action which might have already become statute-barred – Shell Petroleum Development Company of Nigeria Ltd V. Ejebu(2011) 17 NWLR {Pt. 1276} 324. Thus, even if it is correct that the statutory period for the Respondent to commence the action for recovery of debt had elapsed the Respondent’s right of action was revived by the acknowledgement and admission of liability by the Appellant. The action was not statute barred.”
See also BARRISTER CHRIS OBUN V. OBANLIKU LOCAL GOVERNMENT COUNCIL & ORS (2017) LPELR -43804 (CA), L.T. THADANI & ANOR V. NATIONAL BANK OF NIGERIA LIMITED & ANOR (1972) LPELR (SC), MR. DON PEDRO V. KADUNA TEXTILE LTD (2018) LPELR -46740 (CA).

It is my finding on this issue that it is answered in the affirmative in other words this suit is not statute-barred.
The second issue canvassed by the Appellant is: 
Whether the Respondent has led credible evidence to be entitled to the reliefs sought?

While arguing this issue, learned counsel to the Appellant submitted that the Respondent did not lead credible evidence in proving its case thus it is not entitled to the reliefs sought at the trial Court. That the learned trial Judge relied only on the evidence of PW1 and Exhibit ‘D4’ in reaching his decision. That the Respondent did not prove the overdraft facility and the term loan facility which they alleged to have granted to the Appellant. That the overdraft facility and the term loan facility “are two and distinct and each must be proved based on its terms and conditions relating to the facility. The prove of one does not grant the respondent the life (sic) for the other”. He quoted the testimony of PW1 under cross-examination at page 361 of the Records.

That Exhibit D4 upon which the learned trial Judge placed reliance in granting the reliefs of the Respondent is a statement of account of the Appellant with the Respondent. That the document is a computer generated evidence as envisaged by Section 84 of the Evidence Act and the law prescribes certain conditions that must be complied with before such kind of document can be admitted in evidence. Cited OMISORE V. AREGBESOLA (2015) 15 NWLR {Pt. 1482} S.C. 205. That since the legal requirements for admitting such documents in evidence were not observed by the lower Court the said document is legally inadmissible and it is immaterial whether counsel to the Appellant objected to its admissibility or not. That it is the duty of the Court to ensure that proper procedure was followed while admitting the document and even if the document is admitted in error the Court ought to expunge same from its record. That since the document was admitted through PW1 who is not the maker of the said Exhibit D4, it “amounts to documentary hearsay” which is inadmissible as it lacks probative value. Cited LADOJA V. AJIMOBI (2016) 10 NWLR {Pt. 1519} SC 87 at 146 – 147. That the competent person to tender the document in evidence is the person whose signature appeared on the said document and not PW1. Learned counsel urged the Court to discountenance the evidence of PW1 and resolve this issue in favour of the Appellant.
​ 
While arguing this issue learned counsel to the Respondent submitted that his client has proved that the Appellant is indebted to it in the sum of N80,368,426.94 as per Exhibit D4 and the evidence adduced before the trial Court. That it is trite law that the law that regulates banking in Nigeria is a specie of the law of contract. It there follows that for a contract to exist between a Bank and its customer, there must be an offer and an acceptance of that offer. Cited OWOEYE V. WEMA BANK LIMITED (2001) 9 NWLR {Pt. 717} 1 at 10. That it is beyond conjecture that the Appellant by Exhibit D3 applied to the Respondent for a Revolving Overdraft Facility of N30 Million and a Term Loan of N25 million to enable the Appellant pay staff salary as at when due and to execute some developmental projects. Learned counsel quoted Exhibit D3 verbatim.

That under cross-examination, PW1 stated that although there was no application for the subsequent facility, but there is an agreement for “Revolving Facilities between the parties”. That a “Revolving Loan” was defined in Blacks Law Dictionary, 8th Edition at page 955 as “A loan that is renewed at maturity”. Learned counsel asked a pertinent question thus: Why did the Appellant issue Exhibits D10, D14, D17, D18, D20, E & K6 if it was not indepted to the Respondent? That by Exhibits D4, D8, D10, D12, D14, D17, D18, D20, D23, D25, E and K6 the Appellant admitted its indebtedness to the Respondent.

As for the submission by the Appellant that the legal requirements laid down under Section 84(1) – (4) of the Evidence Act for the admissibility of Exhibit D4 was not complied with, learned counsel to the Respondent replied that documents produced by a computer are expressly admissible by virtue of Section 84(2) (a) – (b) and Section 84(4) of the Evidence Act. Learned counsel quoted part of the deposition on oath of PW1 at page 78 of the Records which the Appellant failed to cross-examine PW1 on it. On front-loading of witness statements which requires no oral testimony but only adoption of same and tendering of documents contained therein learned counsel submitted that the PW1 complied with the provision of Order 38 of the High Court of Adamawa State (Civil Procedure) Rules 2013. That the Respondent has fulfilled the pre-condition laid down in Section 84 of the Evidence Act thus Exhibit D4 was admissible as computer generated evidence. Learned counsel urged the Court to so hold and to resolve this issue in favour of the Respondent.

FINDING ON ISSUE 2:
Whether the Respondent has led credible evidence to be entitled to the reliefs sought?

In order to determine this issue, I have carefully considered the plethora of documentary evidence and the testimony of the PW1 and DW1. The main grouse of the appellant in formulating this issue from grounds 2 and 3 of their notice of appeal is that the learned trial Judge relied solely on the evidence of PW1 and Exhibit D4 in reaching his decision. That the overdraft facility of N20 million granted to the appellant on 11/2/2008 is fictitious and non-existing. He relied on the testimony of PW1 under cross-examination at page 361 of the record of appeal to buttress this assertion. Learned counsel to the appellant also denigrated Exhibit D4 (the statement of account of the appellant at pages 289 – 297 of the record of appeal) that it did not meet the requirement of Section 84 of the Evidence Act and although it was tendered without objection through PW1 it ought to have been expunged by the learned trial Judge for being a “documentary hearsay”. 
I have considered the deposition of PW1 at pages 71 – 79 of the records which was adopted by the witness on 9th June, 2016 wherein he deposed inter alia, as follows: –
“58. That all records, entries and/or statements capturing the entire financial transaction between the Plaintiff and the Defendant which are regularly required by law to be kept by the Plaintiff were maintained as entry in bankers book and were at the time of making them one of the ordinary books of the Plaintiff.
59. That the Defendant’s bank statement was printed on the banks special letter head paper and signed by Usman Kawuyo the then Business Service Manager of Wema Bank Plc, Yola Branch and certified by me.
60. That I know as a fact that the document containing the Defendant’s bank statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activity regularly carried on over that period.
61. That I know as a fact that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived.
62. That I know as a fact that throughout the material part of that period the computer was operating properly.
63. That the information contained in the Defendant’s bank statement reproduced or is derived from information supplied to the computer in the ordinary course of those activities.
64. That I compared the entry in the Plaintiff’s computer with the entry on the Defendant’s Account No. 1118092905718 and Account No. 1111092905713 and I certify them to be correct and true”. (page 78 of the Records).

This deposition by PW1 was not controverted during cross-examination. It also complied with the provision of Section 84(1) and (2) (a) – (b) and (4) of the Evidence Act which provides thus: 
84(1). In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this section are satisfied in relation to the statement and computer in question.
(2). The conditions referred to in Sub-section (1) of this section are: 
a. that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual.
b. that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate: 
a) Identifying the document containing the statement and describing the manner in which it was produced.
b) Giving such particulars of any evidence involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer.”

I also noted that in this era of front loading of witnesses statements on oath, oral testimony of witnesses must be reduced in writing and no further oral testimony will be allowed other than for the witness to adopt his written deposition and tender documents in evidence as provided by Order 38 of the High Court of Adamawa State (Civil procedure) Rules 2013. 

It is my finding on this issue that by a combined effect of Section 84 of the Evidence Act and Order 38 of the High Court (Civil Procedure) Rules 2013, the Respondent has met or complied with the requirements laid down by the law for the admissibility of Exhibit ‘D4’ through the deposition of PW1 particularly of paragraphs 58 and I so hold. Therefore the assertion by learned counsel to the appellant that the testimony of PW1 and admission in evidence of Exhibit D4 were done in error by the learned trial Judge is not correct and same is discountenanced by me. The learned trial Judge rightly relied upon the evidence of PW1 and Exhibit D4. This issue is resolved in favour of the Respondent.

The third issue formulated by the Appellant is: 
Whether the failure of the trial Court to make a finding in respect of issue three does not amount to a breach of fair hearing and a miscarriage of justice? (Ground 4)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Before considering the submission by learned counsel to the Appellant on this issue, I will consider ground 4 from which this issue was crafted. It reads thus: –
“GROUND FOUR (4)” 
The learned trial Judge erred in law when he held that “Since issue one and two have been resolve against the Defendant, issue three becomes a non-issue for determination. Accordingly, it is resolved against the Defendant.”

I also considered the judgment by the learned trial Judge particularly at page 383 of the record of appeal which tallies with ground four (Supra). I was therefore non-plussed the way the learned counsel to the Appellant couched this issue wherein he alleged that the learned trial Judge did not make a finding in respect of issue two. However I will determine this issue on the belief that learned counsel to the Appellant meant the learned trial Judge failed to make a finding on “issue three” not “issue two” since his submissions are on alleged failure by the trial Court to make pronouncement on issue 3.

Learned counsel to the Appellant submitted while arguing this issue that the failure by the learned trial Judge to make a finding on issue three as quoted in ground four is perverse and occasioned a miscarriage of justice. He cited the apex Court’s decisions in UMAR V. GEIDAM (2019) 1 NWLR {Pt. 1625} SC 29; BI-COURTNEY LTD V. A.G. FEDERATION (2019) 10 NWLR {Pt. 1679} SC 112 and RASAKI V. AJIJOLA (No. 2) (2018) 9 NWLR {Pt. 1617} SC 13.

Learned counsel submitted that one of the sacred judicial duty of a trial Judge is to make pronouncement on the submission made before him so that parties will be satisfied that justice has not only been done but was manifestly seen to have been done, failure of which renders the decision as perverse. He urged the Court to resolve this issue in favour of the Appellant, allow this appeal and set aside the decision of the trial Court.

Learned counsel to the Respondent (who framed this issue appropriately challenging the trial Courts omission to pronounced on issue 3) submitted while arguing this issue that the appellant did not quote the holding by learned trial Judge correctly. That learned counsel to the appellant quoted the portion of the judgment that suits his case. He quoted the decision by the learned trial Judge at page 383 of the records and submitted that the learned trial Judge did determine the issue of the alleged non-compliance with the “express statutory provision of Section 11 of the Adamawa State Local Government Establishment and Administration Law, 2000”, and that the reasoning of the trial Judge is valid and without fault. He urged the Court to discountenance the submission by the appellant, resolve this issue in favour of the Respondent, to dismiss this appeal and affirm the decision by the learned trial Judge.

FINDING ON ISSUE 3 
The issue is: –
Whether failure of the trial Court to make a finding in respect of issue three does not amount to breach of fair hearing and a miscarriage of justice?

As submitted by learned counsel to the Respondent, this issue was craftily framed by the Appellant to cast aspersion on the judgment of the learned trial Judge by quoting only a part of the decision in ground 4 of the notice of appeal that suits the Appellant. What the learned trial Judge said at pages 382 – 383 of the Records is: –
“On the whole therefore, it is my view that the PW1’s testimony and the exhibits tendered in this case have proved that Toungo Local Government Council is indebted to the Plaintiff Wema Bank to the amount claimed in the statement of claim of Plaintiff. Issue two is therefore resolved against the Defendant and in favour of the Plaintiff.
Now coming to issue three i.e. whether the renewal of overdraft facility of N20 million made by Plaintiff to Defendant complied with the provision of Section 11 of the Adamawa State Local Government Establishment Law, 2000 to warrant Defendant repay same.
Since issue one and two (sic) have been resolved against the Defendant, this issue three becomes a non-issue for determination. Accordingly, it is resolved against the Defendant. The fact that the Defendant has collected loan facility from the Plaintiff, the Defendant is bound to pay back notwithstanding the fact that it complied or did not comply with the provision of Section 11 of Local Government Law, 2000.”

This holding by the learned trial Judge is self-explanatory and need no further input by the parties. It is obvious that in determining issues 1 and 2 in favour of the Plaintiff, issue three becomes a non-issue since it challenged the reasoning in issue 2. The said issue 2 reads thus: –
Whether the Plaintiff has proved that the Defendant is indebted to it in the sum of N80,369,426.94 as per Exhibit D4 and the evidence adduced before the Hon. Court. (page 372 of the Records).

Since issue two was resolved against the Appellant, it is obvious that determining issue three contrary to issue two will render the entire judgment a nullity as it will amount to self-contradiction. It is my finding that the learned trial Judge considered, quoted and made his pronouncement known on issue 3. The submission by learned counsel to the Appellant and the authorities cited and relied upon while arguing this issue, are discountenanced by me since they are not correct. I also resolve this issue against the Appellant.

It is therefore my judgment that this appeal lacks merit and is hereby dismissed. The judgment delivered by the trial Court on 19th November, 2018 in Suit No. ADSY/32/2015 is affirmed by me. I make no order as to cost.

CHIDI NWAOMA UWA, J.C.A.: I read before now, the draft judgment of my learned brother, BITRUS GYARAZAMA SANGA, JCA. His Lordship has comprehensively and adequately resolved all the issues for determination of the appeal. I adopt his reasoning and conclusion arrived at as mine in dismissing the appeal for lacking in merit.

I also affirm the decision of the lower Court delivered on the 19th November, 2018 in Suit No. ADSY/32/2015. 
I abide by the order made by my learned brother as to costs.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother BITRUS GYARAZAMA SANGA, JCA, afforded me the opportunity of reading the copy of the judgment just delivered. I agree entirely with my Lord that the appeal lacks merit and should be dismissed. It is hereby dismissed by me. I have nothing further to add.

Appearances:

D. I. KULTHU S.C. II Attorney General Chambers, Ministry of Justice Yola, Admawa State For Appellant(s)

E. O. TELA ESQ. For Respondent(s)