WEMA BANK v. OWOSHO (2018)
LPELR-43857(CA)
PRACTICE AREA: DEBT
RECOVERY
INTRODUCTION
Generally, money borrowed or loaned becomes
repayable when the time slated for repayment has fallen due.
However, does effluxion of time automatically translate to setting
the law in motion for the recovery of the debt? Does the right of
action arise immediately after the repayment of debt has fallen
due?
GARBA, J.C.A. in this appeal said “… to recover
the alleged debt from the Respondent, the law requires and imposes
a legal duty on the Appellant to make a formal demand for the
payment of the debt by the Respondent which was to activate the
right of enforcement of the cause of action, through the judicial
processes of a Court of law.”
He went further to say “[T]he letter of demand
was to have been written by the Appellant before the legal action
by way of the counter claim was filed”
In clarifying the issue the Court of Appeal, per
GARBA, J.C.A. explained that although the cause of action will
naturally arise when the loan become repayable, same will not be
enforceable by way of judicial process of a Court of law unless a
letter of demand for the payment of the debt is served on the
debtor. In his words “Although the cause of action arose in 1999,
the accrual of the right to enforce it by way of judicial process
of a Court of law was to have arisen or been activated when and by
the letter of demand for the payment of the debt from the
Appellant.”
He reinforced this position by saying that “it
is the letter of demand from a Bank to its customer for the payment
of a debt owed in his account that gives rise to the accrual of the
right of action for the purpose the recovery of the debt by means
of the judicial process of a Court of law.” And that “until such
letter of demand was issued, no right of action would arise and
accrue to the bank to enable it commence a legal action in a Court
of law for the recovery of the debt in question.”
BRIEF FACTS
The facts of the case as can be gathered from
this judgment is that the Appellant herein was the
Defendant/Counter Claimant in a suit instituted by the Respondent
at the trial Court. The counter claim was for recovery of debt.
However, there was no letter of demand for the sum counter
claimed.
On the 5th day of June, 2008, the High Court
delivered judgment in which inter alia, the Appellant’s counter
claim was dismissed on the grounds that it was statute barred and
that there was no letter of demand for the sum counter-claimed from
the Appellant.
Not satisfied with the dismissal of its counter
claim, the Appellant brought this appeal
ISSUE(S) FOR
DETERMINATION
Three issues were set out for the determination
of this appeal viz:
- Whether the counter claim filed in 2002 when the cause of
action arose in 1999 as evidenced in the writ of summons and
Statement of Claim of the Respondent is statute barred. - Whether the failure of the Police to charge the
Respondent to Court upon the discovery of fraud in the Respondent’s
Account by the Appellant foreclosed the Appellant’s
counter-claim. - Whether the trial Court rightly held that the failure of
the Appellant to write a demand letter to the Respondent vitiated
the Counter-claim of the Appellant.
HELD
The appeal was dismissed and there was no order
as to costs.
RATIO DECIDENDI
- ACTION – ACTION FOR RECOVERY OF DEBT:
Condition precedent for the exercise of right of action to recover
debt
“From the date of the reconstruction and
reconciliation of the Respondent’s account by the Appellant
resulting in the preparation and issuance of Exhibit D8, the fact
or a combination of the facts, which if proved, would entitle the
Appellant to a judicial remedy from a Court of law, was/were
complete to give rise to its cause of action against the Respondent
in respect of the alleged debit balance or debt shown on Exhibit
D8. However, as a condition precedent for the exercise of the right
of action in respect of that cause of action to recover the alleged
debt from the Respondent, the law requires and imposes a legal duty
on the Appellant to make a formal demand for the payment of the
debt by the Respondent which was to activate the right of
enforcement of the cause of action, through the judicial processes
of a Court of law. So even though the cause of action arose in 1999
with Exhibit D8, the activation of the right for it to accrue to
the Appellant to enforce the cause of an action depended on a
letter of demand for the payment of the debt from the Appellant and
refusal or failure by the Respondent to pay. The letter of demand
was to have been written by the Appellant before the legal action
by way of the counter claim was filed and within the time
prescribed by the limitation law of Lagos State. This is because
the accrual of the right to enforce the cause of action by use of
judicial process of a Court of law was/is not in perpetuity to be
exercised at the whims or pleasure of the Appellant. Although the
cause of action arose in 1999, the accrual of the right to enforce
it by way of judicial process of a Court of law was to have arisen
or been activated when and by the letter of demand for the payment
of the debt from the Appellant.” Per GARBA, J.C.A. (Pp. 12-14,
Paras. D-A)
- ACTION – ACTION FOR RECOVERY OF DEBT:
When is a cause of action deemed to accrue in an action for
recovery of debt
“In the case of Kolo v. F.B.N. (2002) LPELR-7106
(CA) @ 21, (2003) 3 NWLR (Pt. 806) 216, it was held that:- “It is
trite law that in an action for the recovery of a debt the cause of
action accrues upon demand for the payment of the debt. lf no
demand is made, a cause of action does not arise and no action can
be commenced. See Ishola v. S.G. Bank (1997) 2 SCNJ, 1 @ 19, also
reported in (1997) 2 NWLR (Pt. 488) 405 @ 422. In the case of
Ishola (supra), the Supreme Court held (c) that it is an implied
term of the relationship between a banker and his customer that
there should be no right of action until there has been a demand or
notice given. See also Angyu v. Malami (1992) 9 NWLR (Pt. 264) 242
@ 252.” In the premises of the law as stated in the above
authorities, it is the letter of demand from a Bank to its customer
for the payment of a debt owed in his account that gives rise to
the accrual of the right of action for the purpose the recovery of
the debt by means of the judicial process of a Court of law. As
stated in the authorities, until such letter of demand was issued,
no right of action would arise and accrue to the bank to enable it
commence a legal action in a Court of law for the recovery of the
debt in question. As a result, since the Appellant did not write
and issue a letter of demand to the Respondent for the recovery of
the debt allegedly owed by her as per Exhibit ‘D8’, which debt was
also claimed in the counter-claim, the right of action in respect
of the said debt did not accrue at the time the Appellant filed the
counter-claim for the debt. It may be recalled that the law is that
for the purpose of the application of a limitation law, time would
start to run from the date/time a cause and right of action arises
and accrues to a party. Sanda v. Kukawa L.G. (supra); Amusan v.
Obideyi (2005) 6 SC (Pt. 1) 147, (2005) 14 NWLR (Pt. 945) 322;
Ogunko v. Shelle (2004) 6 NWLR (Pt. 868) 17; Odubeko v. Fowler
(1993) 7 NWLR (Pt. 308) 637; Sosan v. Ademuyiwa (1986) 3 NWLR (Pt.
27) 241; W.A.P.C. Plc v. Adeyeri (2003) 12 NWLR (Pt. 835) 517. In
the Appellant’s case, because the debt did not arise from a usual
or normal banker and customer relationship service of the grant of
loan, overdraft or other credit facilities by the Appellant to its
customer, but arose out of alleged fraud which was discovered by
the Appellant in 1999, but disputed by the Respondent, it had the
duty to have formally demanded for the payment of the disputed debt
from the Respondent within the time prescribed by the limitation
law if it intended to use the judicial processes of a Court to
recover the debt. The duty of the Appellant to comply with the
provisions of the limitation law in making the demand for the
payment of the debt allegedly owed by the Respondent was not left
at its whims and pleasure since it is a Judicial condition
precedent for the exercise of the right to claim the payment by use
of the judicial process of a Court of law. Exhibit ‘D8’ the
statement of the Respondent’s account after the reconstruction and
reconciliation by the Appellant showing the indebtedness of the
Respondent to the Appellant which was disputed, did not translate
or constitute a demand, as required by the law, for the repayment
or payment of the debt indicated thereon. If the Respondent had
acknowledged the said debt when she received Exhibit ‘D8’, then the
acknowledgement would have activated and given rise to the right of
the Appellant to claim payment by the Respondent without the need
to have written a formal demand by the Appellant for her to do so.
A-G Adamawa State v. A-G Federation (2014) LPELR-2322 (SC); Okonta
v. Egbuna (2013) LPELR-21253 (CA). However, since the entries in
Exhibit ‘D8’, were disputed by the Respondent, for a valid and
competent legal action to be initiated and maintained by the
Appellant before a Court of law for the recovery of the debt
indicated on the Exhibit, a formal demand for the payment of the
debt from the Appellant to the Respondent had to be made within the
period of time stipulated by the limitation law of Lagos State for
actions to recover such debts between the Appellant and its
customer; the Respondent. Limitation Statutes or Laws being
substantive and not merely procedural and technical have to be
complied with in the action by the Appellant to recover the alleged
debt from the Respondent. Cross River University of Tech. (CRUTECH)
v. Obeten (2011) LPELR-4007 (CA).
In the case of Hung v. E.C. Invest. Co. Nig. Ltd
(2016) LPELR-42125 (CA) it was held, that:- “In a claim for
recovery of a debt, the cause of action accrues when a demand is
made and the debtor refuses to pay.” The cases of Victor v. UBA Plc
(2007) LPELR-90413 (CA) and Okonta v. Egbuna (2013) LPELR-21253
(CA) were referred to for the position. See also Mersk Nig. Ltd. v.
Uma Invest. Co. Ltd. (2013) LPELR-21247 (CA), Onokomma v. Union
Bank of Nigeria, Plc (2017) LPELR-42748 (CA); Omosowan v. Chiedozie
(1998) 9 NWLR (Pt. 566) 477.”Per GARBA, J.C.A. (Pp. 17-22, Paras.
E-A)
- ACTION – ACTION FOR RECOVERY OF DEBT:
Effect of failure to make a formal demand for a debt within the
time stipulated by the limitation law
“…In the above premises, the High Court was
right that since the Appellant did not formally demand for the
payment of the alleged debt owed by the Respondent and refusal or
failure to pay back the debt, it was premature for the
Appellant to have made a counter-claim for the recovery of the debt
and the failure to make the formal demand within the time limited
by Section 8(1) of the Limitation Law of Lagos State from the date
Exhibit ‘D8’ was prepared, the right to seek to recover the said
debt by way of a legal action was lost by the effluxion of time, as
it was rendered stature barred. In the final result, the High Court
was right that the Appellant’s counter-claim was statute barred in
the absence of a formal demand to recover the debt therein by it to
the Respondent within the time prescribed in Section 8(1) of the
above named limitation law.” Per GARBA, J.C.A. (Pp. 23-24, Paras.
BA)
- ACTION – ACTION FOR RECOVERY OF DEBT:
Effect of failure to make a formal demand for a debt within the
time stipulated by the limitation law
“Having calmly looked at the counter claim of
the Appellant, which the Court below rightly in my view found to be
a simple action for the recovery of debt and which cause of action
can arise in law only upon a demand for payment by the creditor and
a refusal by the debtor to pay, I find that the counter claim of
Appellant at the time it was filed against the Respondent suffered
a ‘still birth’ and had become stale and thus incapable of any
enforcement by an action in a Court of law. See Hung v. E.C.
Investment Co. Nig. Ltd. (2016) LPELR-42125 (CA). See also Onokomma
v. Union Bank of Nigeria Plc (2017) LPELR-42748 (CA).” Per
GEORGEWILL, J.C.A. (P. 28, Paras. B-E)
OTHER JUDGMENTS FROM THE
COURT
DASUKI v. FRN & ORS (2018)
LPELR-43897(SC)
- APPEAL – UNAPPEALED
FINDING(S)/DECISION(S): Effect of unappealed
finding(s)/decision(s) of court
“There is a settled presumption that a specific
finding of fact neither challenged nor rebutted is correct:
REGISTERED TRUSTEES, APOSTOLIC FAITH MISSION v. JAMES (1987) 3 NWLR
(Pt.6) 566; BAKARE v. THE STATE (1987); NWLR (PT.52) 579. This
Court in DARIYE v. FRN (2015) 61 NSCQR 1457 at 1496 – 1497,
re-stating its earlier stance in ONIBUDO v. AKIBU (1982) 2 SC 60 at
63, held that the appellant who does not appeal a specific finding
of fact is deemed to have accepted and conceded it. Facts not
disputed are always taken as established.”Per EKO, J.S.C. (P. 12,
Paras. A-D)
- APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S)
OF FACT(S): Instances where the Supreme Court will
interfere with concurrent findings of fact(s) by Lower
Courts
“The appellant has not been able to show that
the concurrent findings of fact by the trial Court and the Court of
Appeal that the trial Court made no order that the appellant shall
not subsequent to the order made on 18th December, 2015, admitting
him to bail, be arrested or further arrested, investigated and
prosecuted for any other offence, is perverse. The concurrent
findings, also, that the order made on 18th December, 2015
admitting the appellant to bail was complied with on 29th December,
2015, and not flouted, upon the appellant fulfilling the bail
terms, are similarly not perverse. This Court, as a policy, remains
hesitant to interfere with concurrent findings of fact made by the
trial and intermediate Courts. It only intervenes and interferes
with such concurrent findings of fact if and only when they are
shown to be perverse: ABEGUNDE v. ONDO STATE HOUSE OF ASSEMBLY
(2015) 61 NSCQR 1857; ATOLAGBE v. SHORUN (1985) LPELR – 592
(SC).”Per EKO, J.S.C. (Pp. 17-18, Paras. C-B)
- CONSTITUTIONAL LAW – RIGHT TO FAIR
HEARING: Essential elements of fair hearing
“It is clear from GARBA V. UNIVERSITY OF
MAIDUGURI (1986) 2 SC 128; (1986) 1 NWLR (Pt.18) 550, that the
right entrenched in Section 36(1) of the Constitution has three
major components; namely:
a. Fair hearing or trial (which includes audi
alteram partem – i.e hear the other party and the right agqinst
bias-nemo judex in causa sua),
b. the determination of the civil rights or
obligation within a reasonable time; and
c. by a Court or tribunal established by
law.”Per EKO, J.S.C. (P. 19, Paras. A-C)
- EVIDENCE – BURDEN OF PROOF/ONUS OF
PROOF: Whether he who asserts must prove
“The law is settled: he who asserts must prove.
That is the essence of Section 131(1) of the Evidence Act, 2011.
The burden of proof in every suit or proceeding lies on the party
who will fail if no evidence at all were given on either side:
Section 132 of the Evidence Act.”Per EKO, J.S.C. (P. 13, Paras.
D-F)
- JUDGMENT AND ORDER – CONTENT OF
JUDGMENT: Whether the content of a judgment can be altered
or varied
“I agree with the 1st respondent, on the
authority of KALU v. FRN (2014) 1 NWLR (Pt.1389) 379 at 544 and
ONWUKA v. EDIALA (1989) 1 NWLR (Pt.96) 182, that a party is not
permitted to read into an order of Court what the order does not,
in fact, contain.”Per EKO, J.S.C. (Pp. 12-13, Paras.
F-A)
FORBY ENGR. CO. LTD & ANOR v. AMCON
(2018) LPELR-43861(CA)
- ACTION – CLAIM(S)/RELIEF(S): Whether a
party can abandon or withdraw any of the reliefs claimed in the
originating process by oral application
“The Appellants’ Counsel has not referred to any
rule of the trial Court, (because none exists) which says that a
party cannot at any stage of the proceedings of a case, abandon or
withdraw any of the reliefs sought on the originating processes,
orally, irrespective of the nature of such reliefs; declaratory or
executory. No judicial authority was also cited in support of the
argument that a party has to file a formal application to enable
him withdraw or abandon any reliefs; of whatever nature, he claims
in his action, before the Court would allow him to do so. It is
absurd to say that a party cannot at any time in the course of the
proceedings of his case, orally notify or inform the Court of his
withdrawal or abandonment of any of the reliefs he sought from the
Court against the Defendant(s) in the originating processes merely
because the reliefs are declaratory. As the owner or one who seeks
or prays for the grant of the reliefs sought in an action, a party
requires no permission or leave of Court to withdraw or abandon any
of the reliefs and the Court cannot stop the party from so doing,
but for record purposes, has the duty to duly notify or inform the
Court of the withdrawal or abandonment to enable it know the extant
reliefs sought in the action so as to avoid granting reliefs not
sought, for being abandoned or withdrawn. The oral notification of
the withdrawal of some of reliefs sought by the Respondent in the
writ and statement of claim did not, under any Rule of the trial
Court or principle of law, call for or warrant a formal amendment
of the said writ and statement of claim before it could be granted
and taking effect.”Per GARBA, J.C.A. (Pp. 56-57, Paras.
A-D)
- COURT – DISCRETION OF COURT: How a court
should exercise its discretion in granting reliefs of
parties
“By a way of a general restatement of the law,
an application for enlargement or extension of
time to take a procedural step in a case, by a
party who defaulted in compliance with the
time prescribed by the Rules of a Court, is one
which calls for the exercise of discretion of the Court concerned.
It is a known requirement of the principles of law that any or all
judicial discretion must be exercised judicially and judiciously by
a Court of law, at all times. Oladele v. Aromolaran II (1991) 3
NWLR (181); Ogolo v. Ogolo (2006) ALL FWLR (313) 1; Sanni v. Agara
(2010) 2 NWLR (1978) 371; Ebe v. COP (2008) 4 MJSC, 201. To act
judicially, simply means to consider the interests of both parties
to an application and weigh them in order to arrive at a fair or
just decision. To act judiciously, is to exhibit or show wisdom,
good sense and sound reasoning in the assessment of the parties’
interests and arriving at a decision on the peculiar facts and in
the circumstances of a case. ACB Ltd. v. Nnamani (1991) 4 NWLR
(186) 486; Eronini v. Iheuko (1989) 2 NWLR (101) 46; IGP v.
Onagoruwa (1991) 5 NWLR (193) 593.” Per GARBA, J.C.A. (Pp. 32-33,
Paras. C-B)
- EVIDENCE – ADDRESS OF COUNSEL: Whether
address/argument of counsel can take the place of
evidence
“Apart from the arguments of Counsel under the
issue, which in law is no evidence on which a decision could be
predicated by a Court of law, see UBA Plc v. Akparabong Commercial
Bank Limited (2006) ALL FWLR (320) 1099, Chabasaya v. Anuasi (2010)
10 NWLR (1201) 163, there is no evidence by way of a counter
affidavit to challenge, let alone controvert, the affidavit of
service by the bailiff of the trial in order to rebut the
presumption of proper service on the Appellants. Per GARBA, J.C.A.
(P. 25, Paras. C-F)
- JUDGMENT AND ORDER – FINAL/INTERLOCUTORY JUDGMENT: Test
for determining whether a judgment/order is final or
interlocutory
“The Ruling by the trial Court on the objection
to its jurisdiction as a matter of procedural law by the Appellants
dismissing the objection and assuming jurisdiction, was an
interlocutory decision by that Court. That decision would have been
a final decision if the trial Court had declined jurisdiction as it
would have ended the matter completely and finally before it and no
issue would have remained between the parties in the case for it to
decide. However, by assuming jurisdiction, the decision became
interlocutory for the Court to continue with the determination of
the claims made in the case. See Akinsanya v. UBA Limited (1986) 4
NWLR (35) 273, Gomez v. C & S.S. (2009) 10 NWLR (1149) 223 @
248.”Per GARBA, J.C.A. (Pp. 15-16, Paras. E-B )
GLENCORE ENERGY UK LTD v. FRN (2018)
LPELR-43860(CA)
COURT – DUTY OF COURT: Duty of an appellate
Court to consider and make pronouncements on all issues formulated
by parties “The resolution the two issues would ordinarily have
disposed of the appeal completely thereby subsuming the issue 3
raised by the Appellant but since the decision of the Court on the
issues is subject to a further appeal at which it may be faulted,
it would be prudent to consider and make a pronouncement on the
issue 3. John v. State (2011) 18 NWLR (1278) 353, Akpan v. FRN
(2012) 1 NWLR (1281) 403. Edet v. State (2008) 14 NWLR (1106)
52.”Per GARBA, J.C.A. (P. 27, Paras. C-E)
- EVIDENCE – PROOF BEYOND REASONABLE
DOUBT: The requirement of the law as regard proof beyond
reasonable doubt
“Proof beyond reasonable doubt required by the
law and as defined in the cases cited earlier, is not attained by
complete absence of any evidence to link an accused person with the
commission of the offences he was alleged or accused to have
committed on a charge sheet, but by credible, admissible, cogent
and sufficient evidence which even after the crucible scrutiny of
cross examination, leaves only a remote possibility in favour of
the accused person which can be dismissed with sentence:- “of
course it is possible but not in the least probable.”Per GARBA,
J.C.A. (P. 33, Paras. C-E)
WEMA
BANK v. OWOSHO (2018) LPELR-43857(CA)
PRACTICE AREA: DEBT RECOVERY
INTRODUCTION
Generally, money borrowed or loaned becomes
repayable when the time slated for repayment has fallen due.
However, does effluxion of time automatically translate to setting
the law in motion for the recovery of the debt? Does the right of
action arise immediately after the repayment of debt has fallen
due?
GARBA, J.C.A. in this appeal said “… to recover
the alleged debt from the Respondent, the law requires and imposes
a legal duty on the Appellant to make a formal demand for the
payment of the debt by the Respondent which was to activate the
right of enforcement of the cause of action, through the judicial
processes of a Court of law.”
He went further to say “[T]he letter of demand
was to have been written by the Appellant before the legal action
by way of the counter claim was filed”
In clarifying the issue the Court of Appeal, per
GARBA, J.C.A. explained that although the cause of action will
naturally arise when the loan become repayable, same will not be
enforceable by way of judicial process of a Court of law unless a
letter of demand for the payment of the debt is served on the
debtor. In his words “Although the cause of action arose in 1999,
the accrual of the right to enforce it by way of judicial process
of a Court of law was to have arisen or been activated when and by
the letter of demand for the payment of the debt from the
Appellant.”
He reinforced this position by saying that “it
is the letter of demand from a Bank to its customer for the payment
of a debt owed in his account that gives rise to the accrual of the
right of action for the purpose the recovery of the debt by means
of the judicial process of a Court of law.” And that “until such
letter of demand was issued, no right of action would arise and
accrue to the bank to enable it commence a legal action in a Court
of law for the recovery of the debt in question.”
BRIEF FACTS
The facts of the case as can be gathered from
this judgment is that the Appellant herein was the
Defendant/Counter Claimant in a suit instituted by the Respondent
at the trial Court. The counter claim was for recovery of debt.
However, there was no letter of demand for the sum counter
claimed.
On the 5th day of June, 2008, the High Court
delivered judgment in which inter alia, the Appellant’s counter
claim was dismissed on the grounds that it was statute barred and
that there was no letter of demand for the sum counter-claimed from
the Appellant.
Not satisfied with the dismissal of its counter
claim, the Appellant brought this appeal
ISSUE(S) FOR
DETERMINATION
Three issues were set out for the determination
of this appeal viz:
- Whether the counter claim filed in 2002 when the cause of
action arose in 1999 as evidenced in the writ of summons and
Statement of Claim of the Respondent is statute barred. - Whether the failure of the Police to charge the
Respondent to Court upon the discovery of fraud in the Respondent’s
Account by the Appellant foreclosed the Appellant’s
counter-claim. - Whether the trial Court rightly held that the failure of
the Appellant to write a demand letter to the Respondent vitiated
the Counter-claim of the Appellant.
HELD
The appeal was dismissed and there was no order
as to costs.
RATIO DECIDENDI
- ACTION – ACTION FOR RECOVERY OF DEBT:
Condition precedent for the exercise of right of action to recover
debt
“From the date of the reconstruction and
reconciliation of the Respondent’s account by the Appellant
resulting in the preparation and issuance of Exhibit D8, the fact
or a combination of the facts, which if proved, would entitle the
Appellant to a judicial remedy from a Court of law, was/were
complete to give rise to its cause of action against the Respondent
in respect of the alleged debit balance or debt shown on Exhibit
D8. However, as a condition precedent for the exercise of the right
of action in respect of that cause of action to recover the alleged
debt from the Respondent, the law requires and imposes a legal duty
on the Appellant to make a formal demand for the payment of the
debt by the Respondent which was to activate the right of
enforcement of the cause of action, through the judicial processes
of a Court of law. So even though the cause of action arose in 1999
with Exhibit D8, the activation of the right for it to accrue to
the Appellant to enforce the cause of an action depended on a
letter of demand for the payment of the debt from the Appellant and
refusal or failure by the Respondent to pay. The letter of demand
was to have been written by the Appellant before the legal action
by way of the counter claim was filed and within the time
prescribed by the limitation law of Lagos State. This is because
the accrual of the right to enforce the cause of action by use of
judicial process of a Court of law was/is not in perpetuity to be
exercised at the whims or pleasure of the Appellant. Although the
cause of action arose in 1999, the accrual of the right to enforce
it by way of judicial process of a Court of law was to have arisen
or been activated when and by the letter of demand for the payment
of the debt from the Appellant.” Per GARBA, J.C.A. (Pp. 12-14,
Paras. D-A)
- ACTION – ACTION FOR RECOVERY OF DEBT:
When is a cause of action deemed to accrue in an action for
recovery of debt
“In the case of Kolo v. F.B.N. (2002) LPELR-7106
(CA) @ 21, (2003) 3 NWLR (Pt. 806) 216, it was held that:- “It is
trite law that in an action for the recovery of a debt the cause of
action accrues upon demand for the payment of the debt. lf no
demand is made, a cause of action does not arise and no action can
be commenced. See Ishola v. S.G. Bank (1997) 2 SCNJ, 1 @ 19, also
reported in (1997) 2 NWLR (Pt. 488) 405 @ 422. In the case of
Ishola (supra), the Supreme Court held (c) that it is an implied
term of the relationship between a banker and his customer that
there should be no right of action until there has been a demand or
notice given. See also Angyu v. Malami (1992) 9 NWLR (Pt. 264) 242
@ 252.” In the premises of the law as stated in the above
authorities, it is the letter of demand from a Bank to its customer
for the payment of a debt owed in his account that gives rise to
the accrual of the right of action for the purpose the recovery of
the debt by means of the judicial process of a Court of law. As
stated in the authorities, until such letter of demand was issued,
no right of action would arise and accrue to the bank to enable it
commence a legal action in a Court of law for the recovery of the
debt in question. As a result, since the Appellant did not write
and issue a letter of demand to the Respondent for the recovery of
the debt allegedly owed by her as per Exhibit ‘D8’, which debt was
also claimed in the counter-claim, the right of action in respect
of the said debt did not accrue at the time the Appellant filed the
counter-claim for the debt. It may be recalled that the law is that
for the purpose of the application of a limitation law, time would
start to run from the date/time a cause and right of action arises
and accrues to a party. Sanda v. Kukawa L.G. (supra); Amusan v.
Obideyi (2005) 6 SC (Pt. 1) 147, (2005) 14 NWLR (Pt. 945) 322;
Ogunko v. Shelle (2004) 6 NWLR (Pt. 868) 17; Odubeko v. Fowler
(1993) 7 NWLR (Pt. 308) 637; Sosan v. Ademuyiwa (1986) 3 NWLR (Pt.
27) 241; W.A.P.C. Plc v. Adeyeri (2003) 12 NWLR (Pt. 835) 517. In
the Appellant’s case, because the debt did not arise from a usual
or normal banker and customer relationship service of the grant of
loan, overdraft or other credit facilities by the Appellant to its
customer, but arose out of alleged fraud which was discovered by
the Appellant in 1999, but disputed by the Respondent, it had the
duty to have formally demanded for the payment of the disputed debt
from the Respondent within the time prescribed by the limitation
law if it intended to use the judicial processes of a Court to
recover the debt. The duty of the Appellant to comply with the
provisions of the limitation law in making the demand for the
payment of the debt allegedly owed by the Respondent was not left
at its whims and pleasure since it is a Judicial condition
precedent for the exercise of the right to claim the payment by use
of the judicial process of a Court of law. Exhibit ‘D8’ the
statement of the Respondent’s account after the reconstruction and
reconciliation by the Appellant showing the indebtedness of the
Respondent to the Appellant which was disputed, did not translate
or constitute a demand, as required by the law, for the repayment
or payment of the debt indicated thereon. If the Respondent had
acknowledged the said debt when she received Exhibit ‘D8’, then the
acknowledgement would have activated and given rise to the right of
the Appellant to claim payment by the Respondent without the need
to have written a formal demand by the Appellant for her to do so.
A-G Adamawa State v. A-G Federation (2014) LPELR-2322 (SC); Okonta
v. Egbuna (2013) LPELR-21253 (CA). However, since the entries in
Exhibit ‘D8’, were disputed by the Respondent, for a valid and
competent legal action to be initiated and maintained by the
Appellant before a Court of law for the recovery of the debt
indicated on the Exhibit, a formal demand for the payment of the
debt from the Appellant to the Respondent had to be made within the
period of time stipulated by the limitation law of Lagos State for
actions to recover such debts between the Appellant and its
customer; the Respondent. Limitation Statutes or Laws being
substantive and not merely procedural and technical have to be
complied with in the action by the Appellant to recover the alleged
debt from the Respondent. Cross River University of Tech. (CRUTECH)
v. Obeten (2011) LPELR-4007 (CA).
In the case of Hung v. E.C. Invest. Co. Nig. Ltd
(2016) LPELR-42125 (CA) it was held, that:- “In a claim for
recovery of a debt, the cause of action accrues when a demand is
made and the debtor refuses to pay.” The cases of Victor v. UBA Plc
(2007) LPELR-90413 (CA) and Okonta v. Egbuna (2013) LPELR-21253
(CA) were referred to for the position. See also Mersk Nig. Ltd. v.
Uma Invest. Co. Ltd. (2013) LPELR-21247 (CA), Onokomma v. Union
Bank of Nigeria, Plc (2017) LPELR-42748 (CA); Omosowan v. Chiedozie
(1998) 9 NWLR (Pt. 566) 477.”Per GARBA, J.C.A. (Pp. 17-22, Paras.
E-A)
- ACTION – ACTION FOR RECOVERY OF DEBT:
Effect of failure to make a formal demand for a debt within the
time stipulated by the limitation law
“…In the above premises, the High Court was
right that since the Appellant did not formally demand for the
payment of the alleged debt owed by the Respondent and refusal or
failure to pay back the debt, it was premature for the
Appellant to have made a counter-claim for the recovery of the debt
and the failure to make the formal demand within the time limited
by Section 8(1) of the Limitation Law of Lagos State from the date
Exhibit ‘D8’ was prepared, the right to seek to recover the said
debt by way of a legal action was lost by the effluxion of time, as
it was rendered stature barred. In the final result, the High Court
was right that the Appellant’s counter-claim was statute barred in
the absence of a formal demand to recover the debt therein by it to
the Respondent within the time prescribed in Section 8(1) of the
above named limitation law.” Per GARBA, J.C.A. (Pp. 23-24, Paras.
BA)
- ACTION – ACTION FOR RECOVERY OF DEBT:
Effect of failure to make a formal demand for a debt within the
time stipulated by the limitation law
“Having calmly looked at the counter claim of
the Appellant, which the Court below rightly in my view found to be
a simple action for the recovery of debt and which cause of action
can arise in law only upon a demand for payment by the creditor and
a refusal by the debtor to pay, I find that the counter claim of
Appellant at the time it was filed against the Respondent suffered
a ‘still birth’ and had become stale and thus incapable of any
enforcement by an action in a Court of law. See Hung v. E.C.
Investment Co. Nig. Ltd. (2016) LPELR-42125 (CA). See also Onokomma
v. Union Bank of Nigeria Plc (2017) LPELR-42748 (CA).” Per
GEORGEWILL, J.C.A. (P. 28, Paras. B-E)
OTHER JUDGMENTS FROM THE
COURT
DASUKI v. FRN & ORS (2018)
LPELR-43897(SC)
- APPEAL – UNAPPEALED
FINDING(S)/DECISION(S): Effect of unappealed
finding(s)/decision(s) of court
“There is a settled presumption that a specific
finding of fact neither challenged nor rebutted is correct:
REGISTERED TRUSTEES, APOSTOLIC FAITH MISSION v. JAMES (1987) 3 NWLR
(Pt.6) 566; BAKARE v. THE STATE (1987); NWLR (PT.52) 579. This
Court in DARIYE v. FRN (2015) 61 NSCQR 1457 at 1496 – 1497,
re-stating its earlier stance in ONIBUDO v. AKIBU (1982) 2 SC 60 at
63, held that the appellant who does not appeal a specific finding
of fact is deemed to have accepted and conceded it. Facts not
disputed are always taken as established.”Per EKO, J.S.C. (P. 12,
Paras. A-D)
- APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S)
OF FACT(S): Instances where the Supreme Court will
interfere with concurrent findings of fact(s) by Lower
Courts
“The appellant has not been able to show that
the concurrent findings of fact by the trial Court and the Court of
Appeal that the trial Court made no order that the appellant shall
not subsequent to the order made on 18th December, 2015, admitting
him to bail, be arrested or further arrested, investigated and
prosecuted for any other offence, is perverse. The concurrent
findings, also, that the order made on 18th December, 2015
admitting the appellant to bail was complied with on 29th December,
2015, and not flouted, upon the appellant fulfilling the bail
terms, are similarly not perverse. This Court, as a policy, remains
hesitant to interfere with concurrent findings of fact made by the
trial and intermediate Courts. It only intervenes and interferes
with such concurrent findings of fact if and only when they are
shown to be perverse: ABEGUNDE v. ONDO STATE HOUSE OF ASSEMBLY
(2015) 61 NSCQR 1857; ATOLAGBE v. SHORUN (1985) LPELR – 592
(SC).”Per EKO, J.S.C. (Pp. 17-18, Paras. C-B)
- CONSTITUTIONAL LAW – RIGHT TO FAIR
HEARING: Essential elements of fair hearing
“It is clear from GARBA V. UNIVERSITY OF
MAIDUGURI (1986) 2 SC 128; (1986) 1 NWLR (Pt.18) 550, that the
right entrenched in Section 36(1) of the Constitution has three
major components; namely:
a. Fair hearing or trial (which includes audi
alteram partem – i.e hear the other party and the right agqinst
bias-nemo judex in causa sua),
b. the determination of the civil rights or
obligation within a reasonable time; and
c. by a Court or tribunal established by
law.”Per EKO, J.S.C. (P. 19, Paras. A-C)
- EVIDENCE – BURDEN OF PROOF/ONUS OF
PROOF: Whether he who asserts must prove
“The law is settled: he who asserts must prove.
That is the essence of Section 131(1) of the Evidence Act, 2011.
The burden of proof in every suit or proceeding lies on the party
who will fail if no evidence at all were given on either side:
Section 132 of the Evidence Act.”Per EKO, J.S.C. (P. 13, Paras.
D-F)
- JUDGMENT AND ORDER – CONTENT OF
JUDGMENT: Whether the content of a judgment can be altered
or varied
“I agree with the 1st respondent, on the
authority of KALU v. FRN (2014) 1 NWLR (Pt.1389) 379 at 544 and
ONWUKA v. EDIALA (1989) 1 NWLR (Pt.96) 182, that a party is not
permitted to read into an order of Court what the order does not,
in fact, contain.”Per EKO, J.S.C. (Pp. 12-13, Paras.
F-A)
FORBY ENGR. CO. LTD & ANOR v. AMCON
(2018) LPELR-43861(CA)
- ACTION – CLAIM(S)/RELIEF(S): Whether a
party can abandon or withdraw any of the reliefs claimed in the
originating process by oral application
“The Appellants’ Counsel has not referred to any
rule of the trial Court, (because none exists) which says that a
party cannot at any stage of the proceedings of a case, abandon or
withdraw any of the reliefs sought on the originating processes,
orally, irrespective of the nature of such reliefs; declaratory or
executory. No judicial authority was also cited in support of the
argument that a party has to file a formal application to enable
him withdraw or abandon any reliefs; of whatever nature, he claims
in his action, before the Court would allow him to do so. It is
absurd to say that a party cannot at any time in the course of the
proceedings of his case, orally notify or inform the Court of his
withdrawal or abandonment of any of the reliefs he sought from the
Court against the Defendant(s) in the originating processes merely
because the reliefs are declaratory. As the owner or one who seeks
or prays for the grant of the reliefs sought in an action, a party
requires no permission or leave of Court to withdraw or abandon any
of the reliefs and the Court cannot stop the party from so doing,
but for record purposes, has the duty to duly notify or inform the
Court of the withdrawal or abandonment to enable it know the extant
reliefs sought in the action so as to avoid granting reliefs not
sought, for being abandoned or withdrawn. The oral notification of
the withdrawal of some of reliefs sought by the Respondent in the
writ and statement of claim did not, under any Rule of the trial
Court or principle of law, call for or warrant a formal amendment
of the said writ and statement of claim before it could be granted
and taking effect.”Per GARBA, J.C.A. (Pp. 56-57, Paras.
A-D)
- COURT – DISCRETION OF COURT: How a court
should exercise its discretion in granting reliefs of
parties
“By a way of a general restatement of the law,
an application for enlargement or extension of
time to take a procedural step in a case, by a
party who defaulted in compliance with the
time prescribed by the Rules of a Court, is one
which calls for the exercise of discretion of the Court concerned.
It is a known requirement of the principles of law that any or all
judicial discretion must be exercised judicially and judiciously by
a Court of law, at all times. Oladele v. Aromolaran II (1991) 3
NWLR (181); Ogolo v. Ogolo (2006) ALL FWLR (313) 1; Sanni v. Agara
(2010) 2 NWLR (1978) 371; Ebe v. COP (2008) 4 MJSC, 201. To act
judicially, simply means to consider the interests of both parties
to an application and weigh them in order to arrive at a fair or
just decision. To act judiciously, is to exhibit or show wisdom,
good sense and sound reasoning in the assessment of the parties’
interests and arriving at a decision on the peculiar facts and in
the circumstances of a case. ACB Ltd. v. Nnamani (1991) 4 NWLR
(186) 486; Eronini v. Iheuko (1989) 2 NWLR (101) 46; IGP v.
Onagoruwa (1991) 5 NWLR (193) 593.” Per GARBA, J.C.A. (Pp. 32-33,
Paras. C-B)
- EVIDENCE – ADDRESS OF COUNSEL: Whether
address/argument of counsel can take the place of
evidence
“Apart from the arguments of Counsel under the
issue, which in law is no evidence on which a decision could be
predicated by a Court of law, see UBA Plc v. Akparabong Commercial
Bank Limited (2006) ALL FWLR (320) 1099, Chabasaya v. Anuasi (2010)
10 NWLR (1201) 163, there is no evidence by way of a counter
affidavit to challenge, let alone controvert, the affidavit of
service by the bailiff of the trial in order to rebut the
presumption of proper service on the Appellants. Per GARBA, J.C.A.
(P. 25, Paras. C-F)
- JUDGMENT AND ORDER – FINAL/INTERLOCUTORY JUDGMENT: Test
for determining whether a judgment/order is final or
interlocutory
“The Ruling by the trial Court on the objection
to its jurisdiction as a matter of procedural law by the Appellants
dismissing the objection and assuming jurisdiction, was an
interlocutory decision by that Court. That decision would have been
a final decision if the trial Court had declined jurisdiction as it
would have ended the matter completely and finally before it and no
issue would have remained between the parties in the case for it to
decide. However, by assuming jurisdiction, the decision became
interlocutory for the Court to continue with the determination of
the claims made in the case. See Akinsanya v. UBA Limited (1986) 4
NWLR (35) 273, Gomez v. C & S.S. (2009) 10 NWLR (1149) 223 @
248.”Per GARBA, J.C.A. (Pp. 15-16, Paras. E-B )
GLENCORE ENERGY UK LTD v. FRN (2018)
LPELR-43860(CA)
COURT – DUTY OF COURT: Duty of an appellate
Court to consider and make pronouncements on all issues formulated
by parties “The resolution the two issues would ordinarily have
disposed of the appeal completely thereby subsuming the issue 3
raised by the Appellant but since the decision of the Court on the
issues is subject to a further appeal at which it may be faulted,
it would be prudent to consider and make a pronouncement on the
issue 3. John v. State (2011) 18 NWLR (1278) 353, Akpan v. FRN
(2012) 1 NWLR (1281) 403. Edet v. State (2008) 14 NWLR (1106)
52.”Per GARBA, J.C.A. (P. 27, Paras. C-E)
- EVIDENCE – PROOF BEYOND REASONABLE
DOUBT: The requirement of the law as regard proof beyond
reasonable doubt
“Proof beyond reasonable doubt required by the
law and as defined in the cases cited earlier, is not attained by
complete absence of any evidence to link an accused person with the
commission of the offences he was alleged or accused to have
committed on a charge sheet, but by credible, admissible, cogent
and sufficient evidence which even after the crucible scrutiny of
cross examination, leaves only a remote possibility in favour of
the accused person which can be dismissed with sentence:- “of
course it is possible but not in the least probable.”Per GARBA,
J.C.A. (P. 33, Paras. C-E)