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UBA v. LAWAL & ANOR (2021)

UBA v. LAWAL & ANOR

(2021)LCN/15716(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Monday, December 06, 2021

CA/IB/534/2014

Before Our Lordships:

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

UNITED BANK FOR AFRICA PLC APPELANT(S)

And

1. MRS LABAKE LAWAL 2. MR. LEKAN LAWAL RESPONDENT(S)

 

RATIO

THE POSITION OF THE LAW WHERE A PARTY WITH NOTICE TO PRODUCTE FAILS TO PROUCE THE DOCUMENTS

The law is trite that where a party who is served with Notice to produce fails to produce the documents, it is the duty of the party who served the notice to adduce secondary evidence of the document in question. The provision of Section 167 (d) of the Evidence Act 2011 would not be invoked where the party who gave the notice has failed to adduce secondary evidence. See JURASSIC COMMUNICATIONS (NIG.) LTD VS. ADEYEYE (2019) LPELR – 46498 (CA). Failure by the Respondents to produce the information for which notice was issued does not mitigate the duty on the Appellant to tender secondary evidence of the one in its possession.
In AINOKO VS. YUNUSA (2008) LPELR – 3663 (CA) this Court Per Adekeye JCA (as she then was) while dealing with Notice to Produce and the consequences of failure to so do, restated the law thus:
“On the issue of Notice to Produce, I have to say that a party on whom Notice to produce is served is not under any obligation to produce the document. The service of the Notice to produce only entitles the party serving the Notice to adduce secondary evidence of the document in question by virtue of Section 98 of the Evidence Act. In other words, the service of a Notice to Produce a document does not relieve the person serving the notice of the burden of producing the documents if he can or of proving its contents. Consequently, the non-response to a Notice to produce will not cause the Court to invoke the presumption of withholding of evidence under Section 149 (d) of the Evidence Act against the defaulting party.”
See also UBN VS. IDRIS (1999) 7 NWLR (PART 649) PAGE 105, GBADAMOSI VS. KABO TRAVELS LIMITED (2000) 8 NWLR (PART 668) PAGE 243; ONYE VS. KEMA (1999) LPELR 6562 (CA), CHUKWUKA VS. NDUKA (2008) LPELR- 3985 (CA); ADEGBUYI VS. MUSTAPHA (2010) LPELR – 3600; VENN VS. ACCESS BANK PLC (2014) LPELR – 24077 (CA), UKAEGBU VS NWOLOLO (2009) 3 NWLR (PT. 1127) 194; JOLAYEMI VS. OLAOYE (2004) 12 NWLR (PT.887) 332 and ETENE VS NYONG (2012) LPELR – 8031 (CA) to mention just a few. PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the High Court of Justice, Oyo State in the Ibadan Judicial Division in SUIT NOS: I/473/2008 BETWEEN (1) MRS LABAKE LAWAL (2) MR. LEKAN LAWAL — CLAIMANTS AND U.B.A. PLC delivered on 31st October, 2013 wherein the lower Court found against the Appellant (then Defendant) on all issues submitted for determination against it by the Respondents (then Claimants). The Appellant who is dissatisfied filed this appeal.

The Respondents took out a writ of summons against the Appellant at the lower Court on the 9th of May 2008. In the statement of claim filed on the 24th of June 2008, they sought the following reliefs:
“(1) A declaration that the amount shown in the statement of account No: 201135389 (now Account No: 019-500300-05-5-22) maintained with the Ibadan main branch of Defendant is not a true account of Plaintiff’s banking transaction with the Defendant till 2006.
​(2) A declaration that plaintiff’s account with Defendant was not properly kept in line with the Central Bank of Nigeria Monetary Policy Guidelines and Banker’s Tariffs.
(3) An order directing the Defendant to reverse all wrongful entries made in the said account and re-credit it with all monies wrongly taken out of the account either by overcharge of interest, charges, COT or otherwise howsoever.
(4) An order directing the 1st Defendant to work out, taking into consideration the Central Bank of Nigeria Monetary Policy Guidelines and Banker’s tariffs and furnish Plaintiff with a true and accurate Statement of Plaintiff’s account with Defendant.
(5) An order of perpetual injunction restraining the Defendant by itself, its servants, agents or privies or otherwise howsoever from selling by auction, or private treaty, 2nd plaintiff’s property situate at and being Block A, Plot 4, Alhaji AjadiJejelaiye Layout, Adeoya, now known as No. 14, Olawoye Street, Akobo, Ibadan.
(6) Payment to Plaintiff a total sum of N67,915,730.67 made up as follows:
i. Express charges on commissions on Drafts issued on Plaintiff’s Account plus interest thereon – N2,932,447.42
ii. Unwarranted Further charges on Drafts Issued on Plaintiff’s account and interest accrued thereon – N358,437.85
iii. Express COT charged on Plaintiff’s Account from August 2003-June 2006 and interest accrued thereon – N40,681.07
iv. Overstated balance brought Forward on Plaintiff’s Account and accrued interest thereon – N4,949,065.88
v. Unwarranted Charge on cheque returned unpaid with accrued interest thereon – N29,225.46
vi. Unwarranted Monthly Administrative Charges and further interests thereon – N5,818.67
vii. Arbitrary Commitment Fee Charged – N59,527.82
viii. Arbitrary charges tagged Quarterly Charges – N856,591.41
ix. Unwarranted Processing fees collected and interest on the amount – N1,555,742.32.
x. Unwarranted Management fees collected and interest on the amount – N149,400.59
xi. Excessive overdraft interest charged on plaintiff’s Account – N1,074,310.66
xii. Interests on Delayed Transactions in Plaintiff’s Account without any explanation from Defendant – N56,304,481.52
TOTAL AMOUNT CLAIMED – N67,915,730.67.
Plaintiff claims continuing interest on the said sum of Sixty seven million, nine hundred and fifteen thousand seven hundred and thirty Naira sixty seven Kobo at the rate of 22% per annum till judgment is given and thereafter at the rate of 10% per annum till the whole sum is paid.”

​A summary of the case of the Respondents at the lower Court is as follows: That the 1st Respondent who was a customer of the Appellant enjoyed various overdraft facilities with her. That on one occasion the Appellant approved the sum of N10 million for the 1st Respondent vide a letter dated 30/06/2006, which she refused to draw on the ground that she suspected the status of her account. She noticed that her account was debited to the tune of hundreds of thousands of Naira without her authorization and without compliance with the banking regulations of the Central Bank of Nigeria. As a result of the confusion created in her account, the 1st Respondent instructed the firm of Amien Consultants Ltd, a firm of financial and banking consultants to cross check the operations of her account to determine whether the transactions therein were carried out by the Appellant in compliance with the Central Bank of Nigeria Monetary Guidelines and Bankers Tariff otherwise referred to as Guide Bank Charges. The report of the consultants showed that there were anomalies in the operation of the account and recommended that a total sum of N67,915,730.67k be refunded to her. The Appellant who promised to do something did nothing hence the action filed at the lower Court.

Upon being served with the originating processes the Appellant filed a statement of defence and counterclaim which was amended a few times, with the last in the series of amendments being the further Amended Statement of Defence and Counterclaim filed on 6/7/2012. The Respondents filed their consequential Amended Reply to Statement of Defence and Defence to Counterclaim on 12/3/2012. The Appellant in turn filed its Reply to Defence to Counterclaim on 20/3/2012.

The Respondents counterclaimed as follows:
I. A declaration that the claimant and her husband mortgaged their building lying and situate at block A, Alhaji Ajadi Jejelaiye layout, Adekoya Off Olorunda Aba Road, Ibadan covered by Certificate of Occupancy registered as 30/30/2691 to the Defendant.
II. A declaration that the Claimant is indebted to the Defendant to the tune of N17,344,447.37k (Seventeen million, Three Hundred and Forty-four Thousand, Four hundred and Forty-seven Naira, Thirty seven Kobo only) as at October, 2008.
III. An order to pay forthwith to the Defendant/Counterclaimant the sum of N17,344,447.37k (Seventeen million, Three Hundred and Forty-four Thousand, Four hundred and Forty-seven Naira, Thirty seven Kobo only) being the amount owed the Defendant by the Claimant as at October 2008.
IV. Interests of 31% on the said N17,344,447.37k (Seventeen million, Three Hundred and Forty-four Thousand, Four hundred and Forty-seven Naira, Thirty-seven Kobo only) in accordance with the agreement between the parties from November 2008 till judgment is given; and 10% on the judgment sum till same is fully liquidated.
V. A declaration that the building lying and situate at Plot 4, block A on Alhaji Ajadi Jejelaiye layout, Adekoya Off Olorunda Aba Road, Ibadan is the property covered by Deed of Legal Mortgage dated 2nd July, 1998 between the Claimant and her husband on one side and the Defendant on the other side and each of the parties is bound to deal with the said building in line with the provisions of the said Deed of Legal Mortgage.
VI. An order of this honourable Court restraining the Claimants either by their servants, privies, agent or anybody howsoever from interfering with the Defendant and/or from preventing the Defendant anyway howsoever from enjoying all the rights and privileges conferred on her by the Deed of legal Mortgage dated 2nd July 1998 and registered as 45/45/3451.”

The case went on to trial with both parties calling both oral and documentary evidence in support of their respective cases. At the close of trial, the lower Court entered judgment for the Respondents in accordance with their claims and dismissed the counterclaim of the Appellant.

At pages 464 to 465A of the Record, the lower Court specifically held as follows:
“I hold that the counter claimant has not been able to lead cogent and compellable evidence in proof of his claim.
Based on all the above judgment is hereby entered for the claimants as follows:
1) A declaration is hereby made that the amount shown in the statement of account No. 201135389 (now account 019-500300-05-5-22) maintained with the Ibadan Main Branch of the Defendant is not a true account of the claimant banking transaction with the Defendant till 2006.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

2) A declaration is hereby made that claimant’s account with the Defendant was not properly kept in line with the Central Bank of Nigeria Monetary Policy Guidelines and Banker’s Tariffs.
3) An order is hereby made directing the Defendant to reverse all wrongful entries made in the said account and re-credit it with all monies wrongly taken out of the account either by overcharge of interest, charges, COT or otherwise howsoever.
4) An order is hereby made directing the 1st Defendant to work out, taking into consideration the Central bank of Nigeria Monetary Policy Guidelines and Banker’s tariffs and furnish Claimant account with Defendant.
5) An order of perpetual injunction is hereby made restraining the Defendant by itself, its servants, agents or privies or otherwise howsoever from selling by auction, or private treaty, 2nd plaintiff’s property situate at and being Block A, Plot 4, Alhaji Ajadi Jejelaiye Layout, Adekoya, now known as No. 14, Olawoye Street, Akobo, Ibadan.
6) An order is hereby made for the payments to the Claimants by Defendant of a total sum of N67,915,730.67 made up as follows:
(i) Express charges on commissions on Drafts issued on Plaintiff’s Account plus interest thereon – N2,932,447.42
(ii) Unwarranted Further charges on Drafts Issued on Plaintiff’s account and interest accrued thereon – N358,437.85
(iii) Express COT charged on Plaintiff’s Account from August 2003 – June 2006 and interest accrued thereon – N40,681.07
(iv) Overstated balance brought forward on Plaintiff’s Account and accrued interest thereon – N4,949,065.88
(v) Unwarranted Charge on cheque returned unpaid with accrued interest thereon – N29,225.46
(vi) Unwarranted Monthly Administrative Charges and further interests thereon – N5,818.67
(vii) Arbitrary Commitment Fee Charged – N59,527.82
(viii) Arbitrary charges tagged Quarterly Charges – N856,591.41
(ix) Unwarranted Processing fees collected and interest on the amount – N1,555,742.32.
(x) Unwarranted Management fees collected and interest on the amount – N149,400.59
(xi) Excessive overdraft interest charged on plaintiff’s Account – N1,074,310.66
(xii) Interests on Delayed Transactions in Plaintiff’s Account without any explanation from Defendant – N56,304,481.52
AMOUNT CLAIMED – N67,915,730.67.
This is the judgment of this Court in respect of this case.”

Dissatisfied with decision of the lower Court, the Appellant filed a notice of appeal on the 1st of November 2013.
The notice of appeal is at pages 466-470 of the Record. The extant notice of appeal is the amended Notice of Appeal filed on 23rd November 2017 which was deemed as properly filed on the 28th of November, 2017.

The Record of Appeal transmitted on the 22nd of April 2015 was deemed as properly compiled and transmitted on the 17th of May 2017. The Respondents transmitted an additional record of appeal on the 28th of September, 2017 which was deemed as properly compiled and transmitted on the 28th of November, 2017.

In accordance with the Rules of this Court, briefs of Argument were filed as follows:
1) Appellants Amended brief of Argument filed on 30/12/2020 deemed properly filed on 17/3/2021.
2) Respondents’ Brief of Argument filed on 22/01/2021 deemed as properly filed on 17/03/2021.
3) Appellants Reply brief of Argument filed on 15/02/2021.

On 21/09/2021, when this appeal was argued, learned counsel representing the parties adopted and relied on their respective briefs of Argument. While the Appellant’s counsel argued in favour of allowing the appeal, that representing the Respondents submitted in favour of its dismissal.

Learned counsel to the Appellant formulated the following six issues for the determination of this appeal:
(i) Looking at the entire circumstances of this case, particularly withholding of tellers of payment by the Respondents, is it proper in law and equity for the learned trial Judge to have awarded this specific sum of N50,304,401.52k to the Respondents.
(ii) Did the learned trial judge come to the right conclusion when his Lordship held that the Appellant failed to plead Statute of Limitation and if the answer is negative, was it proper for his lordship to have assumed jurisdiction on the heads of claim in issue in this regard.
(iii) Did the learned trial Judge fairly and equitably evaluate the evidence on record such that it can be said that the Respondents proved their case on the balance of probabilities.
(iv) Whether the reliefs formulated by the Respondents are grantable in law and equity.
(v) Whether in view of the evidence made available by the Appellant, she is not entitled to the judgment as counterclaimed?
(vi) Whether the failure of the learned trial Judge to deliver the judgment in issue within the constitutionally stipulated period has not occasioned a miscarriage of justice on the Appellant.

The Respondents’ counsel adopted the six (6) issues formulated for determination by the Appellant as his own.

I have perused the six (6) issues formulated for the Appellant and adopted by learned Respondents’ counsel. I adopt them in toto as the issues for determination in this appeal.

ISSUE 1
LOOKING AT THE ENTIRE CIRCUMSTANCES OF THIS CASE, PARTICULARLY WITHHOLDING TELLERS OF PAYMENT, BY THE RESPONDENTS, IS IT PROPER IN LAW AND EQUITY FOR THE LEARNED TRIAL JUDGE TO HAVE AWARDED THIS SPECIFIC SUM OF N50,304,401.52K TO THE RESPONDENTS.
In arguing this issue, Learned Senior Counsel representing the Appellant reiterated the settled principle of law that a claimant has the fundamental duty to kickstart an action in a Court of law and a corresponding prerogative to formulate his case. He submitted that it is the claimant that has a perfect understanding of what his case is and a Court of law does not have the power to assume the claimant made a mistake. He relied on the cases of LONGE VS. FBN (2010) 6 NWLR (PART 1189) 1 AT 24 PARA H; SODIPO VS. LEMNINKAINEN (1986) 1 NWLR (PART 15) 220 AT 232 PARA.B and ELIKE VS. NWANKWOALA & ORS. (1984) NSCC 903 AT 909 LINES 16-18 to support his argument.

He referred us to paragraphs 25-26 of the statement of claim and paragraphs 14 (a) and (b) of the Appellant’s further Amended Statement of defence and counterclaim to submit that the Appellant joined issues with Respondents on their claim of N56,303,481.52k as interest on late transaction in respect of about sixty-two (62) lodgements in the 1st Respondent’s account without any explanation from the Appellant and the neglect of the Appellant to credit this sum of money into the 1st Respondent’s account until sometimes in the year 2003.

​He drew our attention to Paragraph 5 and 14 of the 1st Respondent’s statement on oath to submit that all the tellers relied upon by the Respondents in support of the claim of N56,304,481.52k are in their possession.

​He posited that the Appellant caused to be issued to the Respondents a notice to produce the tellers but they failed to do so throughout the trial. He then submitted and urged us to hold that the Respondents did not make out a prima facie case against the Appellant in that they failed to produce all the tellers as evidence of lodgments made into the 1st Respondent’s account. He craved in aid of his submission the cases of FBN PLC VS. M.O. NWADIALU & SONS LTD. (2016) 18 NWLR (PART 1543) PAGE 1 AT 38-39; U.B.A. PLC VS. GSIND (NIG) LTD. (2011) 8 NWLR (PART 1250) PAGE 590 AT 621 and further submitted that a duly stamped teller of payment is prima facie evidence of lodgment of money. He emphasised that the lower Court ought to have invoked the provisions of Section 167 (d) of the Evidence Act, 2011 against the Respondents.

He finally urged us to resolve this issue in favour of the Appellant and set aside the award of the sum of N56,304,481.52 made against it.

​Expectedly, learned counsel to the Respondents submitted otherwise. He urged us to note and hold that the Respondents through their forensic expert (CW2) were able to prove that the 1st Respondent’s account was badly handled by the Appellant. He submitted that CW2’s evidence was not shaken under cross examination and he was not cross examined on most of the 12 subheads. He submitted that the Appellant did not dispute any of the Appendixes A, B, C, D and E. On the lodgments into the 1st Respondent’s account it is the contention of learned counsel that the Respondents were able to show at the trial when monies were paid into the account, when they should have been credited and when they were actually credited. He submitted that the Appellant did not deny the fact that payments meant to be credited into her account were paid months thereafter and there were times they were paid more than a year after.

​It is further the argument of Respondents’ counsel that the Appellant who had custody of counterpart copies of the tellers could have used and relied on them when the Respondents failed to produce them. He emphasised that the 1st Respondent was cheated of funds due to her for up to 4 years in some instances and therefore entitled to interest thereon in line with the Central bank of Nigeria Monetary, Credit, Foreign Trade and Exchange Policy Guidelines of every fiscal year. He submitted it was too late in the day for the Appellant to disown statements of Account it issued which showed all the anomalies committed on the 1st Respondent’s account. He urged us to note that the complaint of the Respondents is not that the monies were not credited but that they were not credited as at when due. He finally urged us to resolve this issue against the Appellant.

I have taken due cognizance of the submission of learned Senior Counsel to the Appellant in the Reply brief filed on behalf of the Appellant and I will consider them in the course of resolution of this issue.

The law is trite that where a party who is served with Notice to produce fails to produce the documents, it is the duty of the party who served the notice to adduce secondary evidence of the document in question. The provision of Section 167 (d) of the Evidence Act 2011 would not be invoked where the party who gave the notice has failed to adduce secondary evidence. See JURASSIC COMMUNICATIONS (NIG.) LTD VS. ADEYEYE (2019) LPELR – 46498 (CA). Failure by the Respondents to produce the information for which notice was issued does not mitigate the duty on the Appellant to tender secondary evidence of the one in its possession.
In AINOKO VS. YUNUSA (2008) LPELR – 3663 (CA) this Court Per Adekeye JCA (as she then was) while dealing with Notice to Produce and the consequences of failure to so do, restated the law thus:
“On the issue of Notice to Produce, I have to say that a party on whom Notice to produce is served is not under any obligation to produce the document. The service of the Notice to produce only entitles the party serving the Notice to adduce secondary evidence of the document in question by virtue of Section 98 of the Evidence Act. In other words, the service of a Notice to Produce a document does not relieve the person serving the notice of the burden of producing the documents if he can or of proving its contents. Consequently, the non-response to a Notice to produce will not cause the Court to invoke the presumption of withholding of evidence under Section 149 (d) of the Evidence Act against the defaulting party.”
See also UBN VS. IDRIS (1999) 7 NWLR (PART 649) PAGE 105, GBADAMOSI VS. KABO TRAVELS LIMITED (2000) 8 NWLR (PART 668) PAGE 243; ONYE VS. KEMA (1999) LPELR 6562 (CA), CHUKWUKA VS. NDUKA (2008) LPELR- 3985 (CA); ADEGBUYI VS. MUSTAPHA (2010) LPELR – 3600; VENN VS. ACCESS BANK PLC (2014) LPELR – 24077 (CA), UKAEGBU VS NWOLOLO (2009) 3 NWLR (PT. 1127) 194; JOLAYEMI VS. OLAOYE (2004) 12 NWLR (PT.887) 332 and ETENE VS NYONG (2012) LPELR – 8031 (CA) to mention just a few.

The Appellant as custodian of the 1st Respondent’s account had counterpart copies of the bank tellers it requested to be produced. In the circumstance, I hold that the non-response of the Respondents to the Notice to Produce will not cause us to invoke the presumption of withholding of evidence under Section 167 (d) of the Evidence Act 2011 against them.

​Exhibit H is the Report of the consultant engaged by the Respondents to verify the lodgments made into the 1st Respondent’s account maintained with the Appellant. The report which was tendered by CW2 who was the maker shows tabulations of how the sum of N56,304,481.52k was arrived at. Having gone through the record, I am of the view that CW2’s evidence was not shaken under cross examination. Furthermore, the Appellant did not dispute any of the Appendixes, A, B, C, D and E. The law is certain upon an unbroken thread of judicial authorities that a Court is bound to believe and act upon evidence not contradicted or controverted. See AGBAJE VS. IBRU SEA FOODS (1972) SC PAGE 50; AJOMALE VS. YADUAT NO.2 (1991) 5 NWLR (PT. 191) PAGE 266; ODOGWU VS.ODOGWU (1992) 7 NWLR (PT. 253) 344 and REGISTERED TRUSTEE OF N.A.C.P.H.N. VS.MINISTRY OF WORKS and HOUSING (2008) ALL FWLR (PT. 412) 1013 AT 1053.
In OLORI MOTORS VS. UBN (1998) 6 NWLR (PT. 554) 493, this Court at pages 506-507 held thus:
“The Court must accept uncontroverted averments in an affidavit as true and proved without hesitation.”

The Appellant’s statement of account is a vital document that reveals when the monies paid through the tellers were paid and credited into the 1st Respondent’s Account. Both the Appellant and the Respondents tendered statements of Account allegedly prepared by the Appellant. The statement of account reveal that the delayed lodgments had the year 1999 as Transaction dates and the year 2003 as the value dates for monies paid into the 1st Respondent’s account. DW1 who testified on behalf of the Appellant at the trial during his cross examination at pages 292-293 of the Record admitted seeing transactions that showed that lodgments were made in 1999 but were not credited until 2003. This piece of evidence corroborates that of CW2 as well as Exhibit H.
In ATOBATELE ALI VS. UBA (2014) LPELR – 22635, this Court Per Augie JCA (as she then was) had this to say:
“It is presumed that no man would declare anything against himself unless it was true. See EIGBE VS. N.U.T. (2008) 5 NWLR (PT. 108) 604.
Thus a party is entitled to rely on his opponent’s admission as an admission against interest to defeat his opponent’s claim. See IPINLAIYE VS. OLUKOTUN (1996) 6 NWLR (PT. 453) 148 SC. See also ONYENGE VS. EBERE (2004) 13 NWLR (PT. 899) 20; OKUNADE VS. OLAWALE (2014) LPELR-22139 CA.”

From the record, I see that Exhibit F-F88, the 2nd set of the 1st Respondent’s statement of account contains uncredited lodgments with transaction dates as 31/12/1999 but with value date of between 30/05/2003 and 08/09/2003. This information is also contained at pages 11-13 of the Report, Exhibit H. CW2’s calculation on interest which is Appendix O attached to Exhibit H was not challenged by the Appellant throughout the trial. I further note that the statement of account produced and tendered in evidence by the appellant (Exhibit L1-L238) contained anomalies such that the Appellant’s own witness at page 287 of the record admitted they contain errors. He not only admitted that entries from 01/03/2003 to 31/03/2003 were missing but also that the entire Exhibits were not detailed. (See page 288 of the Record).

All of the above not only show that there were discrepancies in the way and manner the Appellant operated the 1st Respondent’s account kept with her but also show there was suppression of payment by delayed transaction contrary to CBN guidelines. It is for this reason that I hold that the 1st Respondent is entitled to interest as dictated in the judgment of the lower Court in line with Section 3.2.6. (G) of the Interest Rate Policy of the Central Bank of Nigeria Monetary, Credit, Foreign Trade and Exchange Policy Guidelines of every fiscal year.
The pendulum points to the irresistible conclusion that certain lodgments made in 1999 as alleged by the Respondents were not credited into the 1st Respondent’s account until the year 2003 attracting the interest claimed.

Having critically perused the record, I find it difficult to agree with learned senior counsel to the Appellant that Exhibit H was a guess work prepared with the mindset of setting trap or gold digging the Appellant.

My conclusion on this issue No.1 is that it is resolved in favour of the Respondents against the Appellant.
ISSUE NO2.
DID THE LEARNED TRIAL JUDGE COME TO THE RIGHT CONCLUSION WHEN HIS LORDSHIP HELD THAT THE APPELLANT FAILED TO PLEAD STATUTE OF LIMITATION AND IF THE ANSWER IS NEGATIVE, WAS IT PROPER FOR HIS LORDSHIP TO HAVE ASSUMED JURISDICTION ON THE HEADS OF CLAIM IN ISSUE IN THIS REGARD.

​To buttress his point under this issue, Learned Senior Counsel to the Appellant referred us to paragraph 24 of the Further Amended Statement of Defence and Counterclaim wherein the Appellant specifically pleaded it at the conclusion of trial, and particularly after the close of evidence by all parties and at the address stage contend that the lower Court lacks jurisdiction to entertain any claim relating to the years 1998, 1999, 2001, 2002 and 2003 respectively for being statute barred. He argued it was on that basis that the Appellant submitted at page 377 paragraphs 6.08 to 6.09 of its final written address that certain claims of the Respondents are statute barred. He urged us to note that the Respondents responded in the Counsel’s Written Address contained at pages 387 – 417 of the record particularly at paragraphs 9.0 – 9.5, paragraphs 9.5 – 9.9 and paragraph 9.10 – 9 at pages 414 and 416 of the Record. He further urged us to note that the lower Court resolved the issue of statute of Limitation in favour of the Respondents on the ground that it was not specifically pleaded by the Appellant. He argued that this finding of the trial Judge is not supported by the pleadings of parties. He stressed that the Appellant complied with the provision of Order 15 Rule 7(2) of the Oyo State High Court (Civil Procedure) Rules 2010 by specifically pleading the issue of statute of Limitation.

​He submitted that specific pleadings mean no more than express mentioning of the subject matter in issue. He cited the case of ADEGOKE MOTORS VS. ADESANYA​ (1989) 3 NWLR (PT. 109) 250 to buttress his argument on the difference between when an issue was never raised and when it was raised.

He argued further that a successful defence of the Statute of Limitation goes to the jurisdiction of the Court to entertain the subject matter. He relied on the case of NWAKA VS. H.O.S EBONYI STATE (2008) 3 NWLR (PT. 1073) PAGE 156 AT 173 PARAS B – C.

He reiterated the position of the law that jurisdiction is determined from the claim and that a Claimant has a duty to plead when the cause of action arose. He relied on the case of BAMISILE VS. OSASUYI (2007) 9 NWLR (PT. 1042) 225 AT 226 PARA D to support his argument. He then drew our attention to paragraph 15(a) of CW2’s Statement on Oath at page 39 of the record where he made it very clear that the perceived wrong doings arose between 1998 to 2006. He also referred us to the evidence of CW2 under cross examination at page 262 line 28 of the record where he admitted that Exhibit H is from January 1998 to August 2006.

​He urged us to hold that the cause of action for some of the transactions arose in 1998, 1999, 2000 and 2001 respectively. He stated that the Respondents lumped up the transactions which are statute barred with the ones that are not to submit that this Court lacks the power to assist the Respondents to amend their statement of claim. He submitted it is not the duty of the Court to separate transactions that are statute barred from those that are not and finally urged us to strike out all the claims listed in Paragraph 31(6) i-iii and iv – xi of the Statement of Claim and resolve this issue in favour of the Appellant.

Arguing per contra, learned counsel to the Respondent submitted that the Appellant did not comply with the Rules of Court and the decision of the Supreme Court in the case of ALHAJI OYEBAMIJI & 5 ORS VS IYABO AFUSAT LAWANSON & ORS (2008) 6 – 7 SC (PT. 1) 243 AT 251 to the effect that a party wishing to rely on a statute of Limitation must specifically plead same. His contention is that the Appellant did not specifically plead the defence as required by law. He further submitted that the Appellant did not plead facts of when the cause of action arose and when it became statute barred.

He submitted the law presumes that when no evidence is led as to the date the cause of action accrued, the statute of Limitation is deemed abandoned. He cited the cases of FEDERAL CAPITAL DEVELOPMENT AUTHORITY VS. NAIBI (1990) 3 NWLR (PT. 138) PAGE 270 AT 280 AND STEPHENS ENG. LTD. VS. S. A. YAKUBU (NIG.) LTD. (2009) 5 – 6 SC (PT. 1) 60 AT 67 – 73 to support his submission.
He finally urged us to resolve this issue against the Appellant.

Now, to a resolution of the issue.
To start with, I note that in Paragraph 24 of the Further Amended Statement of Defence and Counterclaim, the Appellant pleaded as follows:
“The Defendant shall at the conclusion of trial and particularly after the close of evidence by all parties and at the address stage, contend that this honourable Court lacks jurisdiction to entertain any claim in this suit relating to the year 1998, 1999, 2000, 2001, 2002 and 2003 is statute barred since such a claim is being made outside the required period by the statute of Limitation.”

It was based on the above pleading that the Appellant’s Counsel submitted in his final written address at paragraphs 6.08 to 6.09, page 377 of the record as follows:
“It is our humble submission that aside from the fact that 1st Claimant slept on her right by accepting all the charges which she is now claiming to be unjustifiable, it is also obvious that this honourable Court does not have jurisdiction to entertain certain claims of the claimants. The claims are of excessive commission on drafts, unwarranted charges on drafts issued, unwarranted charges on cheque returned unpaid, unwarranted monthly administrative charges, arbitrary charges tagged “quarterly charges and unwarranted processing fees collection.”
It is our humble contention that in all the subheads listed above, 1st claimant ought to come to the Court within the period of five years pursuant to Section 18 of Limitation Law, CAP 76, Laws of Oyo State, 2000. However, by CW2’s evidence it is obvious that 1st Claimant came to Court after the five years which she had to come to Court had lapsed. We submit that every claim in respect of the above listed subhead is statute barred … We further urge your Lordship to reject all the claims on the said subheads as been statute-barred.”

Section 18 of the Limitation Law Cap. 76, Laws of Oyo State 2000 provides as follows:
“No Action founded on contracts, torts or any other action not specifically provided for in Part 2 and 3 of the law shall be brought after the expiration of five years from the date the cause of action accrued”.
Also, Order 15 Rule 7(2) of the Oyo State High Court Civil Procedure Rules 2010 provide as follows:
“Where a party raises any ground which makes a transaction void or voidable or such matter as fraud, limitation law, release, payment performance, facts showing insufficiency in contract or illegality either by any enactment or by common law, he shall specifically plead same”.
Having critically examined the above statutory provisions, it is my humble view and I so hold that the Appellant complied with Order 15 Rule 7(2) of the Oyo State High Court Civil Procedure Rules, 2010. See paragraph 24 of the Further Amended Statement of Defence and Counterclaim. I hold further that the Appellant specifically raised, pleaded and argued the issue of statute of Limitation. He complied with the requirement under Order 15 Rule 7(2) of the Oyo State High Court Civil Procedure Rules. By the provision, all that was required of the Appellant is to give Notice of its intention to raise the issue of statute of Limitation (which is an issue of law) in its pleadings which she did.

CW2 in Paragraph 15(a) of his Statement on Oath which he adopted as his oral testimony agreed that the perceived wrong doings against the 1st Respondent arose between the year 1998 and 2006 when he stated as follows:
“15. Our firms’ findings from the bank documents showing the transactions of the 1st Claimant’s account with the Defendant are as follows:
a. EXCESSIVE COMMISSION ON DRAFTS: …
When applying these guidelines to 1st Claimant’s account, we discovered during the course of our examination of the account that as shown on page 3 of our report between 2/1/1998 and 6/1/2006 the Defendant charged excessively for the bank drafts issued to the 1st Claimant. The details of the excess charges are contained in the schedule to our firm’s report marked “APPENDIX A” totaling N792,057.00k. The excess charge was put on our computation of interest form which is attached to the report and marked “APPENDIX B” and it yielded a total interest of N2,140,390.42k”.

While answering questions put to him under Cross-examination, he (CW2) stated at page 262 line 28 of the record as follows:
“Our report Exhibit H is from January 1998 – August 2006.”

It is elementary law that to determine whether or not an action is statute barred, what the Court will look at is the date the cause of action arose and compare it with the date the Writ of Summons was issued.

In this case, leave to issue and serve the Writ of Summons outside jurisdiction was granted on 28/05/2008. The Writ was issued on the same day i.e. 28/05/2008. The evidence of the Respondents who were the Claimants is that the cause of action for some of the transactions arose in 1998, 1999, 2000 and 2001 respectively.

​Regrettably, the effect of this piece of evidence is that the claims listed in paragraph 31 6(i) – 6(iii) and (iv) to (xi) of the Statement of Claim are caught by Section 18 of the Limitation Law Cap 76, Laws of Oyo State, 2000 and therefore statute barred.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The argument of Counsel to the Respondents that the Appellant did not comply with the Rules of Court and the decision of the Supreme Court in ALHAJI OYEBAMIJI & 5 ORS VS. IYABO AFUSAT LAWANSON & 2 ORS (2008) 6 – 7 SC PT. 1 234 AT 251 when he failed to plead the defence of statute of Limitation as required by law is not supported by the record and therefore rejected. The cases of FEDERAL CAPITAL DEVELOPMENT AUTHORITY VS. NAIBI (1990) 3 NWLR (PT. 138) PAGE 270 AT 282 AND STEPHENS ENG. LTD VS. S. A. YAKUBU (NIG.) LTD. (2009) 5 – 6 SC (PT.1) 60 AT PAGES 67 – 73 cited and relied upon by the Respondents do not also help their cause.

The Respondents’ claims are caught by Section 18 of the Limitation Law, Cap. 76, Laws of Oyo State 2000 and therefore statute barred. It is not the duty of the lower Court and this Court to separate the transactions that are statute barred from those that are not. The inevitable conclusion is that all charges relating to the issue under consideration are liable to be and are hereby struck out for want of jurisdiction. The learned trial judge came to a wrong conclusion when he held that the Appellant failed to plead the statute of Limitation. He lacked jurisdiction on the heads of claim in issue and I so hold.
This issue is resolved in favour of the Appellant.

ISSUE 3
DID THE LEARNED TRIAL JUDGE FAIRLY AND EQUITABLY EVALUATE THE EVIDENCE ON RECORD SUCH THAT IT CAN BE SAID THAT THE RESPONDENTS PROVED THEIR CASE ON THE BALANCE OF PROBABILITIES.
Learned Senior Counsel to the Appellant submitted that the duty of every trial Court is to evaluate the evidence led by parties and cited the cases of ODOFIN & ORS VS. MOGAJI & ORS. (1978) 11 NSCC 275 AT 277 – 278 AND AMADI VS. ORJI (2016) 9 NWLR (PT. 1516) 154 PARAS C – A on the way and manner evidence must be evaluated. He also cited EYO VS. INYANG (2001) 8 NWLR (PT. 715) PAGE 304 AT 331 PARAS B – C to support his argument that where the style used by a Court in writing its judgment violates the fundamental principle of fair trial, such a judgment is liable to be set aside.

​It is further the contention of learned senior counsel that the lower Court took sides with the Respondents in its judgment, failed to review/evaluate the evidence of DW2, unduly criticized the evidence of DW1, failed to evaluate the evidence of parties across the divide and accepted Exhibit H despite its obvious defects. He argued that the lower Court failed to evaluate the Appellant’s evidence on the Respondents’ claim of interest; delayed payments; unwarranted management fees and ignored Exhibits J4 (offer of overdraft facility) on the issue of quarterly as well as Exhibits J – J6 on the issue of bank drafts. He stressed that the lower Court did not say anything about the Appellant’s Exhibits M – M15 and gave probative value to Exhibit H notwithstanding that the Respondent admitted it to be a guess work.

For all of the above, he urged us to hold that the lower Court failed to properly evaluate the evidence on record and to resolve this issue in favour of the Appellant.

​For his part, learned counsel to the Respondents submitted and urged us to hold that the trial judge properly evaluated the evidence of parties as required of him by law and came to a reasonable and fair conclusion. He submitted the lower Court identified CW2 as an expert witness and was right when he relied on Section 57(1) of the Evidence Act 2011 to examine and admit Exhibit H in evidence. His position is that the evidence of the witnesses was properly evaluated, and urged us to hold that the lower Court properly evaluated the evidence of DW1 and DW2 and all heads of claim presented to it for adjudication and resolve this issue against the Appellant.

The Supreme Court and this Court has held over and over again that the law does not prescribe any specific or particular procedure or style that must be adopted or used by a trial Court or tribunal in the discharge of its primary duty of assessment or evaluation of the evidence adduced before it. The manner, style or procedure of assessment or evaluation of evidence by a trial Court or Tribunal is not rigid or fixed but entirely at the discretion of the Court which like all other judicial discretions must be exercised judicially and judiciously. See SOLOLA VS. THE STATE (2005) ALL FWLR (PT. 269) 1715 AT 1771, (2005) 5 SC 135; IGAGO VS. STATE (1999) 14 NWLR (PT. 637)1.

​Acting judicially simply imports the consideration of the interests of both sides in a case and weighing them in line with established principles of law in arriving at a just decision.

To act judiciously means to proceed from or show sound judgment marked by discretion wisdom and good sense. See ERONINI VS. IHEUKO (1989) 2 NWLR (PT. 101) 40 AT 60 – 61; ACB VS. NNAMANI (1991) 4 NWLR (PT. 786) 486 AND ENAKHIMION VS. EDO TRANSPORT SERVICES (2006) ALL FWLR (PT. 334) 7882.

It is trite that once a trial Court or tribunal is shown to have evaluated the evidence on record in line with established principles of law and justice by placing it on the imaginary scale, it does not matter the style, manner or procedure used, the evaluation would be proper and this Court would have no justification to interfere with such a method merely because it would have used a different method. In other words, it is not the function of this Court to retry a case on the notes of evidence and make a practice of routinely setting aside the decision of a trial Court or tribunal merely because a particular procedure which was otherwise proper and not another was used in the evaluation of the evidence. This Court can and will only interfere where it is demonstrated that a trial Court wrongly assessed or evaluated the evidence on record. See ONIFADE VS. OLAYIWOLA (1990) 7 NWLR (PT. 161) 130; KALU VS. ODILI (1992) 5 NWLR (PT. 240) 130; LAYINKA VS. MAKINDE (2002) 10 NWLR (PT. 775) 358 AT 375 AND JUSTICE PARTY VS. INEC (2006) ALL FWLR (PT. 339) 907.

I have critically examined the record and my view is that the lower Court did a proper evaluation of the evidence on record and came to a reasonable conclusion on facts presented by parties. I say so for the following reasons:
Exhibit H, the report relied on by the Respondents and accepted by the trial Court was presented by an expert. It was rightly relied on by virtue of Section 57(1) of the Evidence Act 2011. The Appellant did not present any evidence to contradict the report and did little or nothing to discredit the evidence of CW2 who made the report.

​The lower Court was right when it rejected the Appellant’s contention that the Central Bank of Nigeria Banker’s Tariff is a mere guideline which gives room for adjustment by individual banks including the Appellant. The Court properly considered the Statement of Account and properly evaluated same before coming to the conclusion that several vital information were missing from it. It considered the evidence and properly evaluated it before finding in favour of the Respondents on the issue of delayed payments.

My conclusion is that the lower Court reviewed and evaluated the oral evidence led by parties as well as the documentary evidence as required by law and did not violate the fundamental principle of fair trial. It gave probative value to Exhibit H, the issue of delayed payments, unwarranted management fees and quarterly charges and I so hold.
This issue is resolved against the Appellant.

ISSUE 4
WHETHER THE RELIEFS FORMULATED BY THE RESPONDENTS ARE GRANTABLE IN LAW AND EQUITY.
Appellant’s grievance under this issue is that the Reliefs claimed by the Respondents in Paragraph 32(3), (4) and (6) of the Statement of Claim are not grantable in law and equity. Learned Senior Counsel to the Appellant argued that by the Relief granted in Paragraph 31(3), the Appellant is expected to credit the 1st Respondent’s account all the unexplainable debts mentioned in Paragraph 9 – 26 of the Statement of Claim. By the Reliefs granted in Paragraph 31(6), the Appellant is expected to give the same money to be credited into the account of the 1st Respondent to the Respondents. His contention is that a grant of all the reliefs sought in Paragraph 31(1) – (6) of the Statement of Claim amounted to double jeopardy against the Appellant and occasioned miscarriage of justice. He submitted and urged us to hold that reliefs 31(3) and (6) cannot co-exist.

In opposing the argument of Appellant’s Counsel, learned counsel to the Respondents argued that this issue did not emanate from the ratio decidendi of the judgment appealed against. He submitted the issue was not raised by the Appellant in their defence and urged us to resolve the issue against her.

I have painstakingly perused the record and I note that the issue “whether the reliefs formulated by the Respondents are grantable in law and equity” carved out from Ground 19 of the Notice of Appeal was never raised at the lower Court and was not decided in the judgment. The law is settled that ground(s) of appeal must attack the ratio decidendi of the judgment appealed against and the issue(s) distilled from the grounds must be rooted in the complaints against the live issue(s) in the judgment. See ONOWU VS. OGBOKO (2016) LPELR-40074 (CA); BARR ENYIWNA VS ONUEGBU & ORS VS. GOV OF IMO STATE & ORS (2015) LPELR-5968 (CA); OSSAI VS. FRN (2013) 13 WRN 87 AND IGBOKWE VS. EDOM & ORS.(2015) LPELR – 5576 (CA).
In SHEMA & ORS. VS. FRN (2017) LPELR- 44425, my learned brother ABIRU JCA at pages 20-22 paragraph E-C held thus:
“Now, one of the most elementary principles of Appellate Court practice is that an issue for determination must relate to and arise from the ground of appeal …
Similarly, it is elementary that an issue for determination must arise from the decision appealed against – SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD VS. ORUAMBO (2012) 5 NWLR (PT. 1294) 591. Therefore, only issues for determination which are formulated within the parameters of the grounds of appeal and stemming from the decision appealed against are competent to be ventilated.”
Furthermore in K.R.K. HOLDINGS NIG. LTD. VS. FBN & ANOR. (2016) LPELR- 41463, the Supreme Court per Nweze JSC held as follows.
“Every facility of law sophomore is (or ought to be) aware that grounds of appeal must relate to the ratio decidendi of the judgment or decision appealed against.
OKPONIPERE VS. STATE (2013) 10 NWLR (PT. 1362) 209. In other words, an appeal is usually against the ratio decidendi and generally, not against an obiter dictum, UTC NIG. LTD. VS. PAMOTEI (1989) 2 NWLR (PT. 103) 244; SAUDE VS. ABDULLAHI (1989) 4 NWLR (PT. 116) 387 …”

Furthermore, a party who wishes to raise an issue which did not form part of what was considered in the judgment of the lower Court may raise such issue as a fresh issue of law with the leave of the Appellate Court. In other words, leave of the Appellate Court must be sought and obtained to raise and argue a fresh issue on appeal. By so doing, the opponent is given the opportunity to prepare to contest the said fresh issue. See CHIKE VS. NOSIKE (2017) LPELR – 42618 (CA) AND SALISU & ANOR. VS. MOBOLAJI & ANOR., (2013) LPELR – 22019 (SC).
The issue under consideration is a fresh issue. It did not emanate from the ratio decidendi of the judgment of the lower Court. For the Appellant to competently raise it, leave of this Court to so do must have been sought and obtained. There is no evidence on record that such leave was obtained. It is incompetent and it is needless dissipating energy on it. It is incompetent and it is hereby struck out.

ISSUE 5
WHETHER IN VIEW OF THE EVIDENCE MADE AVAILABLE TO THE APPELLANT, SHE IS NOT ENTITLED TO THE JUDGMENT AS COUNTER CLAIMED.
The Appellant as the Defendant counter claimed as follows:-
I. A declaration that the claimant and her husband mortgaged their building lying and situate at block A, Alhaji Ajadi Jejelaiye layout, Adekoya Off Olorunda Aba Road, Ibadan covered by Certificate of Occupancy registered as 30/30/2691 to the Defendant.
II. A declaration that the Claimant is indebted to the Defendant to the tune of N17,344,447.37k (Seventeen million, Three Hundred and Forty-four Thousand, Four hundred and Forty-seven Naira, Thirty seven Kobo only) as at October, 2008.
III. An order to pay forthwith to the Defendant/Counterclaimant the sum of N17,344,447.37k (Seventeen million, Three Hundred and Forty-four Thousand, Four hundred and Forty-seven Naira, Thirty seven Kobo only) being the amount owed the Defendant by the Claimant as at October 2008.
IV. Interests of 31% on the said N17,344,447.37k (Seventeen million, Three Hundred and Forty-four Thousand, Four hundred and Forty-seven Naira, Thirty-seven Kobo only) in accordance with the agreement between the parties from November 2008 till judgment is given; and 10% on the judgment sum till same is fully liquidated.
V. A declaration that the building lying and situate at Plot 4, block A on Alhaji Ajadi Jejelaiye layout, Adekoya Off Olorunda Aba Road, Ibadan is the property covered by Deed of Legal Mortgage dated 2nd July, 1998 between the Claimant and her husband on one side and the Defendant on the other side and each of the parties is bound to deal with the said building in line with the provisions of the said Deed of Legal Mortgage.
VI. An order of this honourable Court restraining the Claimants either by their servants, privies agent or anybody howsoever from interfering with the Defendant and/or from preventing the Defendant anyway howsoever from enjoying all the rights and privileges conferred on her by the Deed of Legal Mortgage dated 2nd July 1998 and registered as 45/45/3451.”

​Learned Senior Counsel to the Appellant submitted and urged us to so hold that the Appellant proved his counterclaim and was entitled to judgment. He submitted that Exhibit J6, the application of the 1st Respondent for the renewal and increase in overdraft facility from 10 Million Naira to 15 Million Naira dated 20/03/2006 is a clear admission of her indebtedness to the Appellant and that a combined reading of Exhibits J5 and J6 reveal a binding contract between the parties. He submitted further that by Exhibit N16, the Respondents duly executed the Deed of legal Mortgage as Mortgagors by mortgaging the 2nd Respondent’s house. He submitted the law is settled that when parties freely enter into a contract, their intentions must be given effect. He cited the case of NWAOLISAH VS. NWABUFOH (2011) 14 NWLR (PT. 1268) 379 to support his position. His further contention is that Exhibit J5 confirms that parties agreed on 19% compound interest on the principal sum as well as unpaid interest and the mode of calculating interest in Exhibit N16. He cited the case of BARCLAYS BANK OF NIGERIA LIMITED VS. ALHAJI MAIWADA ABUBAKAR (1977) 10 SC 7 AT 15 to justify the Appellant’s claim on compound interest. He pointed out that the Appellant specifically pleaded the applicability of default charges to over drafts in the banking industry and that there is nothing in Exhibit G8 to suggest that the 1% monthly default payment is only applicable to loan and not overdraft. He emphasised that the Respondents did not dispute the Mortgage and urged us to resolve this issue in favour of the Appellant.

Arguing per contra, Respondents’ Counsel drew our attention to the fact that the 1st Respondent filed a Defence to the counterclaim and urged us to hold that the Appellant was unable to prove that the 1st Respondent owed her any money. He submitted the Appellant failed to prove that the 1st Respondent drew the sum of 10 million naira approved as overdraft for her. He submitted the Appellant in his counter claim claimed different sums of money and that it is not the duty of a Court to speculate on what his claim is. He finally urged us to resolve this issue against the Appellant.

​Judicial decisions abound that a counterclaim is a separate and distinct action from the main claim and this being so, a counter claimant has a duty to prove his claim by credible evidence to be entitled to judgment. See EFFIOM VS. IRONBAR (2000) 1 NWLR (PT. 678) 341; OKONKWO VS. C. C. B. (2003) FWLR (PT. 154) 457 AT 508; HASAN VS. REGD. TRUSTEES BAPTIST CONVENTION (1993) 7 NWLR (PT. 38) 679 AT 690; OROJA & ORS. VS. ADENIYI & ORS (2017) LPELR 41985 (SC); OGBONNA VS. AG IMO STATE & ORS. (1992) LPELR – 2287 (SC); LOKPOBIRI VS. OGOLA & ORS (2015) LPELR – 40838 (SC); MAOBISON INTERLINK ASS. LTD. VS. U.T.C. (NIG.) PLC.(2013) 9 NWLR (PT. 1359) 197; JERIC (NIG.) LTD. VS. UBN PLC (2000) LPELR – 1607 (SC); OBIMIAMI BRICK & STONE (NIG.) LTD. VS. ACB LTD. (1992) 3 NWLR (PT. 229) 260 AND DABUP VS. KOLO (1993) 9 NWLR (PT. 317) 254 to mention just a few.

At the trial, the Appellant called two witnesses who testified as DW1 and DW2 respectively. The evidence of DW1 on the overdraft facilities granted to the 1st Respondent is that the 2nd Respondent executed a Deed of legal Mortgage as security for the loan. The case of the Appellant is that it did not make any unauthorized charges and that the quarterly charges, processing fees and management fees were part of the contract embedded in the final letter duly accepted by the 1st Respondent.

The Appellant maintained that management fee is more or less a matter of custom and practice of the bank and that all management fees charged were duly brought to the knowledge of the 1st Respondent who did not complain about them. It is further the case of the Appellant that it did not charge the 1st Respondent any excessive interest on the overdraft and maintained it ensured that lodgments into her account were duly credited within a reasonable period in line with the custom and practice of the industry.

I note that the evidence of DW1 was full of discrepancies on material facts. He admitted there was an error in the statement of accounts he brought to Court and which were admitted in evidence as Exhibits L1 – L238.

I have painstakingly examined the evidence adduced on behalf of the Appellant on his counterclaim and I find it unreliable and discredited and such that no reasonable Court/tribunal would rely on.
I find the Appellant’s counterclaim not proved.
This issue is resolved against the Appellant.

ISSUE 6
WHETHER THE FAILURE OF THE LEARNED TRIAL JUDGE TO DELIVER THE JUDGMENT IN ISSUE WITHIN THE CONSTITUTIONALLY STIPULATED PERIOD HAS NOT OCCASIONED A MISCARRIAGE OF JUSTICE ON THE APPELLANT.

The point made by learned senior counsel under this issue is that the failure of the trial judge to deliver the judgment within three months after the adoption of Final Written Addresses occasioned miscarriage of justice on the Appellant. He noted that parties adopted their written addresses on 27/02/13 but that the judgment was delivered 8 months and 2 days thereafter. He relied on the case of MIKAILA VS. THE STATE (2001) 8 NWLR (PT. 715) 469 AT 482 PARAGRAPH H in support of his submission. He highlighted six reasons in the Appellant’s Amended Brief of Argument why the delay in the delivery of judgment occasioned miscarriage of justice on the Appellant and urged us to resolve this issue in its favour.

​Learned Counsel to the Respondents saw it differently and submitted that the failure of the trial judge to deliver the judgment within three months of adoption of Final Written Addresses did not occasion miscarriage of justice to the Appellant. He submitted that the Appellant who had a duty to show there was miscarriage of justice by reason of failure of the lower Court to deliver its judgment within three months failed to do so. He stressed the Court did not lose sight of the suit which was basically based on documentary evidence. He urged us to resolve this issue against the Appellant.

It is not in dispute that the judgment, the subject matter of this appeal was delivered more than three months after the adoption of Written Addresses of Counsel provided for in Section 258 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Parties adopted their Final Written Addresses on 27/02/13 while judgment was delivered on 31/10/2013, a period of over 8 months.

It has been settled by a long line of judicial authorities that delivery of judgment outside the prescribed three (3) months period provided for in Section 258(1) and (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) would not ordinarily render the judgment a nullity unless the Appellant is able to show that the delay occasioned a miscarriage of justice. See YAKUBU VS. ADAMAWA STATE URBAN PLANNING AND DEVELOPMENT AUTHORITY & ORS. (2013) LPELR – 22077 (CA); ABRAHAM ADE ADESANYA VS. THE FEDERAL REPUBLIC OF NIGERIA (1981) 5 SC 112 – 134; ODI VS. OSAFILE (1985) 1 NWLR (PT.1) 18; SODIPO VS. LEMMINKAINEN (1985) 2 NWLR 547; OBIADARA VS. UYIGUA & ANOR. (1986) 7 NSCC (PT. 1) 439 – 441 AND IFEZUE VS. MBADUGHA (1984) 1 SCNLR 427.

It is incumbent on the party complaining to demonstrate how the excessive delay between the time of conclusion of evidence and addresses to delivery of judgment resulted in a miscarriage of justice. See SAVANNAH BANK OF NIGERIA LTD. VS. STARITE INDUSTRIES CORPORATION (2009) 8 NWLR (PT. 114) PAGE 491; DAHIRU VS. KAMALE (2005) 9 NWLR (PART 929) PAGE 8, NAGEBU CO. LTD VS. UNITY BANK PLC (2014) 7 NWLR (PART 1405) PAGE 42 AT 72; OWOYEMI VS. ADEKOYA (2003) 18 NWLR (PT. 582) PAGE 307 AT 334 PARA C-D and ATUNGWU VS. OCHEKWU (2013) 14 NWLR (PT. 1375) PAGE 605-624.

​I have considered the entire record and the Appellant’s Amended Brief of Argument to understand the Appellants’ perspective on how the delay in delivering the judgment occasioned a miscarriage of justice and it is my view that he has not shown any. He was unable to demonstrate how the delay between the time of conclusion of evidence and address on the one hand and the delivery of judgment on the other hand resulted in miscarriage of justice. All the six points highlighted by learned senior counsel to the Appellant at pages 31-32 of the Amended Brief of Argument are flimsy and to my mind an attempt to forum shop. The delay in the delivery of the judgment has not occasioned any miscarriage of justice on the Appellant and I so hold. This issue is also resolved against the Appellant.

In my consideration of Issue Number 2, I found that the lower Court came to a wrong conclusion when the learned trial Judge held that the Appellant failed to plead the statute of limitation and assumed jurisdiction over the heads of claim in issue. It is trite that a statute of limitation removes the right of action, the right of enforcement and the right to judicial relief and leaves the claimant with a bare and empty cause of action which cannot be enforced. Such a cause of action is statute barred. Accordingly, where the law provides for the institution of an action within a prescribed time from when the cause of action accrued, proceedings shall not be commenced after the time prescribed by such statute. See OBIEFUNA VS. OKOYE (1961) 1 SCNLR 144; EGBE VS.ADEFARASIN (1987) 1 NWLR (PART 47) 1; SAVANNAH BANK OF NIGERIA LTD. VS.PAN ATLANTIC SHIPPING CO. LTD (1987) 1 NWLR (PART 49) 184.

In view of the fact that the reliefs claimed by the Respondents in Paragraph 31 (6) (i) – (xi) of the Statement of Claim are caught by the limitation law, the lower Court had no jurisdiction to entertain the said reliefs since the Respondents were left with a bare and unenforceable right of action in respect thereof. In the circumstances, the lower Court was wrong to have entered judgment in favour of the Respondents for the said reliefs. The said reliefs are struck out.

Among the reliefs granted the Respondents by the lower Court is an order directing the Appellant to work out a true and accurate statement of the account of the 1st Respondent with her, as well as a perpetual injunction restraining the Appellant from selling the 2nd Respondent’s property which was mortgaged to secure the facilities granted to the 1st Respondent by the Appellant. (Paragraph 31 (4) and (5) of the Statement of Claim). It would appear that the order granting the relief claimed in Paragraph 31 (4) for a true and accurate Statement of Account to be worked out, makes it premature to grant the order of perpetual injunction claimed in paragraph 31 (5). This is so because it is only after the true and accurate statement of account has been worked out that it can be ascertained if there is an outstanding indebtedness on the basis of which the Appellant can have recourse to the mortgaged property. Accordingly, the order granting the perpetual injunction claimed in paragraph 31 (5) of the Statement of Claim is set aside.

​In conclusion, the appeal succeeds in part since the decision of the lower Court awarding the reliefs claimed in paragraph 31 (5) and (6) of the Statement of Claim have been set aside. For the avoidance of doubt, the decision of the lower Court dismissing the Appellant’s counterclaim, which counterclaim is principally for the recovery of the outstanding amount the Appellant claims is owed to her by the Respondents, is affirmed. Also affirmed is the decision of the lower Court granting the reliefs claimed by the Respondents in paragraph 31 (1)-(4) of the Statement of Claim. The parties are to bear their respective costs of this appeal. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The lead judgment of my learned brother, Folasade Ayodeji Ojo, JCA, which has just been delivered was made available to me in draft. The reasoning and conclusion in the said lead judgment are in accord with my views. As admirably demonstrated in the lead judgment, the Respondents were not entitled to the grant of the reliefs claimed in Paragraph 31 (5) and (6) of the Statement of Claim; the lower Court therefore erred in granting the same. Howbeit, I will still add a few words on some of the other issues thrust up in the appeal in accentuation of my concurrence with the lead judgment.

The Appellant contends that the Respondents did not establish the lodgements they allegedly made into the 1st Respondent’s account, since they failed to produce the tellers by which the lodgements were made, notwithstanding the service on them of a Notice to Produce. The Court was urged to invoke the provisions on withholding of evidence against the Respondents.

​This contention is, with respect, misconceived. It is rudimentary law that the service of a notice to produce a document does not relieve the person serving the notice of the burden of producing the document or proving its contents. In the circumstances of this matter, the Respondents having failed to produce the tellers, the Appellant then had the burden of producing the tellers, the counterparts of which it retained when the lodgements were made into the 1st Respondent’s account. This, it failed to do. The failure to respond to a notice to produce will not cause the presumption of withholding evidence under Section 167 (d) of the Evidence Act to be invoked by the Court against the party in default: BUHARI vs. OBASANJO (2005) 13 NWLR (PT 910) 241, UBN vs. IDRIS (1999) 7 NWLR (PT 609) 105, GBADAMOSI vs. KABO TRAVELS LTD (2000) 8 NWLR (PT 668) 243 and AINOKO vs. YUNUSA (2008) LPELR (3663) 1 at 19-20.

​The Appellants further hanker after the setting aside of the decision of the lower Court on the grounds, inter alia, that the reliefs claimed were not established. The Respondents had tendered the Exhibit F series in proof of their assertion that lodgements made into the 1st Respondent’s action were only reflected and credited years after the lodgements had been made. The Appellant’s witness, the DW1, admitted this fact under cross examination. This is an admission against the interest of the Appellant and it is the best evidence in favour of the Respondents and in proof of their assertion that the lodgements were credited years after they had been made. See ONYENGE vs. EBERE (2004) 13 NWLR (PT 889) 39, ROCKSHELL INT’L LTD vs. BEST QUALITY SERVICES LTD (2009) 12 (PT 1156) 640 at 649 and COUNTY & CITY BRICKS DEVELOPMENT CO. LTD vs. MKC (NIG) LTD (2019) LPELR (46889) 1 at 30.

The Appellant has submitted that the statements of account, Exhibit L series, was sufficient for judgment to be entered for it on its counterclaim. The production of a statement of account is not automatic as proof of the balance contained therein. The entries in the statement of account still have to be explained to the satisfaction of the Court. This was not done. What is more, the Appellant’s witness, the DW1, stated that there were errors in the statement of account; therefore, the state of the evidence was such that the lower Court could not have entered judgment for the Appellant on the counterclaim based on the Exhibit L series. I was recently privileged to expound the law in this regard in the following words in the case of UNION BANK PLC vs. TENOSYS GLOBAL KONNECT LTD (2020) LPELR (49736) 1 at 17-19:
“The law is now settled beyond peradventure that a statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the statement of account. Any person who is claiming a sum of money on the basis of the overall debit balance in a statement of account must adduce both testimonial and documentary evidence, explaining clearly the entries therein to show how the overall debit balance was arrived at. See Section 51 of the Evidence Act 2011 and the cases of OGBOJA vs. ACCESS BANK PLC (2015) LPELR (24821) 1 at 42-44, CO-OPERATIVE BANK LTD vs. OTAIGBE (1980) NCLR 215, YUSUF vs. ACB (1986) 1-2 SC 49, HABIB NIGERIA BANK LTD vs. GIFTS UNIQUE (NIG) LTD (2004) 15 NWLR (PT 896) 405 and WEMA BANK vs. OSILARU (2008) 10 NWLR (PT 1094) 150.
The Respondents/Cross Appellants disputed their indebtedness to the Appellant/Cross Respondent. Indeed, the tenor of their claim before the lower Court is that it is the Appellant/Cross Respondent that is indebted to the 1st Respondent/Cross Appellant. Therefore, the Appellant/Cross Respondent was under the bounden duty to prove that the Respondents/Cross Appellants are in fact indebted to it. This cannot be accomplished by mere production of the statement of account. It must go further to demonstrate by viva voce evidence, given by an official familiar with the accounts, how the debit balance was arrived at. See BIEZAN EXCLUSIVE GUEST HOUSE LTD vs. UNION HOMES SAVINGS & LOANS LTD (2011) 7 NWLR (PT 1246) 246, BILANTE INT’L LTD vs. NDIC (2011) 15 NWLR (PT 1270) 407 and SAMABEY INT’L COMMUNICATIONS LTD vs. CELTEL NIGRIA LTD (2013) LPELR (20758) 1 at 28-29.”
See also FIRST BANK OF NIG PLC vs. MANAGEMENT EDUCATION AND TRAINING LTD (2019) LPELR (47502) 1 at 20-21 and ALBIA TRADING GMBH vs. MADUNKA INTERNATIONAL LTD (2013) LPELR (22312) 1 at 30-32.

It is premised on the foregoing, and on the more elaborate reasoning and conclusion articulated in the lead judgment that I equally join in allowing the appeal in part and on the same terms as set out in the lead judgment.

ABBA BELLO MOHAMMED, J.C.A.: I have read the draft of the lead judgment just delivered by my learned brother Folasade Ayodeji Ojo, JCA. I am in full agreement with his reasoning and conclusions reached in the resolution of all the issues in this appeal.

The point must be stressed that there is a difference between a cause of action and a right of action. A cause of action is the set of facts and circumstances which gives rise to a remedy or relief from the Court: EGBE v ADEFARASIN (1987) 1 All NLR 1; HASSAN v ALIYU & ORS (2010) LPELR-1357(SC), per Onnoghen, JSC (as he then was), at pages 24 – 25, para. A: and ELABANJO v DAWODU (2006) 15 NWLR (Pt. 1001) 76.
A right of action on the other hand is the right to proceed to seek relief in respect of the cause of action: ADEKOYA v FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (Pt. 1099) 539. In other words, it is a cause of action that gives rise to a right of action: DENCA SERVICE LTD v IFEANYI CHUKWU (OSUNDU) CO. LTD & ORS (2013) LPELR-22005(CA), per Oseji, JCA, at pages 28 – 29, para. A.
It is hornbook law that where a cause of action is caught up by a limitation law, the right of action becomes extinguished and is not revivable. It was held in AMADI & ANOR v INEC (2012) LPELR-7831(SC) at 31 – 32, paras. D – E, that the essence of a limitation law is that the legal right to enforce an action is not a right in perpetuity, but a right generally limited by statute. Once the period limited by statute for enforcement of a cause of action has passed, the action becomes statute barred. The cause of action becomes dead. And since it is the cause of action that donates a right of action, the right of action is lost. Thus, where an action is brought outside the period limited by the statute, the Court is divested of jurisdiction to entertain the matter because it is no longer a live issue: ABUBAKAR v MICHELIN MOTOR SERVICES LTD (2020) LPELR-50837(SC), per Kekere-Ekun, JSC at pages 18 – 20, para. B.

In the instant appeal, the Writ of Summons of the Respondents’ suit was issued with leave of the trial Court on 28/05/2008. The evidence of the Respondent was that some of the claims arose in 1998, 1999, 2000 and 2001. By Section 18 of the Limitation Law, Cap. 76, Laws of Oyo State an action founded on contract must be brought before the expiration of five years from the date the cause of action accrued. The action of the Respondents before the trial Court is caught up by Section 18 of the Limitation Law of Oyo State and was therefore statute barred. The trial Court lacked the jurisdictional vires to adjudicate over those claims.

​For the above and all the reasons espoused in the lead judgment, I also allow the appeal in part by setting aside the decision of the lower Court awarding reliefs claimed in paragraph 31(5) and (6) of the Statement of Claim, while affirming all the other decisions of the lower Court.

Appearances:

Musibau Adetunbi, SAN, with him, O.A. Popoola (Mrs) and T.O. Olatidoye For Appellant(s)

Bode Elemide, Esq., with him, R.O. Adesina For Respondent(s)