Haruna Bako Kolo V. First Bank of Nigeria Plc. (2002)
LawGlobal-Hub Lead Judgment Report
NZEAKO, J.C.A.
On the 25th day of March, 1998, the High Court of Justice Plateau State presided over by Dakyen, J., silting in Jos delivered a ruling in suit No. PLD/J7/1997 filed on 9/1/97 on the undefended list. In the suit, the plaintiff claimed from the defendant the sum of N85,637.63 arising from credit facility granted the defendant by the plaintiff, a bank carrying on banking business in Nigeria. The plaintiff also claimed interest on the sum at the rate of 21% per annum from 1/6/96 till the date of judgment, and at 10% from the date of judgment till payment.
The defendant filed a notice of intention to defend the action. The court then transferred the matter to the general cause list, after fully considering same.
Parties filed and exchanged pleadings. The defendant also filed a notice of preliminary objection to the suit with an affidavit in support. The objection was to the effect that the action was statute barred.
The court below heard argument from counsel from both sides. The learned trial Judge, in the said ruling of 25/3/98, overruled the objection.
It is against this, the defendant who was dissatisfied, now appealed to this court on 3 grounds.
Counsel for the parties filed and exchanged briefs of argument in accordance with Order 6 rules 2 and 4 of the Court of Appeal Rules. The appellant also filed a reply brief. From the 3 grounds of appeal, learned counsel for the appellant, Mrs. Ogboru distilled 3 issues for determination in the appeal, as follows:-
(a) Whether the respondent was entitled to refer to facts when it did not file a counter-affidavit in support of his preliminary objection (sic).
Or in the alternative:
(b) Whether the trial Judge ought to have called oral evidence to reconcile certain conflicting facts in the affidavits.
(c) Whether the trial Judge was right in admitting in evidence, a letter marked “without prejudice”.
The respondent had identified only one issue for determination in the appeal. According to him the sole issue is: whether the decision of the court is sustainable despite reliance on inadmissible evidence.
At the hearing of the appeal, the appellant and his counsel were not in court. As appellant’s brief of argument had been duly filed and served, his appeal was deemed by us to have been duly argued pursuant to Order 6 rule 9 of the Rules of this court.
On the part of the respondent, his counsel, Mr. Ameh, was in court. He had also filed his brief of argument. He applied to amend the word “admissible” in paragraph 4.01 line 2 of the brief to read, “inadmissible”. The application was granted. The word “admissible” was replaced with the word, “inadmissible”.
Thereafter, Mr. Ameh, adopted the respondent’s brief of argument as amended and urged the court to dismiss the appeal.
The facts of this matter can be summarised as follows:-
The appellant, a customer of the respondent, a bank carrying on banking business under the laws of Nigeria, was granted over- draft facilities between 1976 – 1979 by the bank. The facilities totaled
N 16,000.00. It is not in dispute that sometime in 1979, the appellant permitted the respondent bank, to appropriate the funds which he had in his savings account and which he had used as collateral for the facilities. This was to reduce his indebtedness to the bank.
This left the sum of N6,898.12 of the principal loan unpaid. It was not till 16/2/88, that the appellant made another payment of N6,898.12 being the amount due as at the time in 1979 when the withdrawal from appellant’s savings was made. It is clear from the point of view of both parties, that accruing interest on the facilities remained unpaid over these 9 years, 1979 to 1988. It was common grounds that the appellant in the same 1988, applied to the respondent for interest waiver.
In the pleadings, parties differ in the following:-
According to the appellant, he heard nothing from the respondent about the request for waiver of interest till January, 1995, when a demand letter was sent to him by the bank. This was later followed with demand notice in 1996 and the writ commencing this suit on the undefended list.
On the other hand, according to the respondent, it had considered the application for waiver and refused it and over time, had kept pressing the appellant for payment, which never came. The appellant denied receiving any such communications from the respondent.
When the appellant filed in the court below his notice of preliminary objection, supported by an affidavit, the respondent did not file a counter-affidavit. Learned counsel for the respondent said he was opposing it on points of law.
I have examined the record of appeal, including the ruling of the court below complained of, the grounds of appeal and the brief of argument of the parties. I intend to use the sole issue raised by the respondent’s counsel. It encompasses the 3 issues of the appellant which will be addressed within the sole issue.
The way it is, the complaints which the appellant presents are geared to show that the decision of the court below, could not stand but for the facts wrongly considered relied upon and applied by the court.
The contention of the respondent, on the other hand, amounts to this, that the learned trial Judge had also based his decision on reasons other than the wrongly applied facts from which he had come to the same decision.
The issue involved was an issue of law, the question being, when did the cause of action in the suit arise?
The court below, in its ruling after reviewing the submission of counsel for both parties, determined the issues thus:-
“The law is that in considering whether an action is statute-barred, time begins to run when the cause of action arises. See the case of Nwadiaro v. The Petroleum Development Company (supra).
“It is the contention of the appellant’ counsel that the cause of action accrued in 1988, after the applicant made payment and acknowledged by respondent per Exhibit H. She said the applicant considered himself discharged from his obligation after the payment in February, 1988.
She however conceded that, the appellant made a request for interest waiver and submitted that the approval or disapproval was supposed to have been communicated to the appellant within a period of 5 years to keep the matter alive …. But Mr. Okoroafor, learned counsel for the respondent has a contrary view … the action did not accrue in 1988, because by the payment in 1988, the appellant admitted and acknowledged his indebtedness to the respondent, … that the debt did not accrue until there was a demand and that the demand was made in January, 1995. That a debt is only payable on demand and he relied on the case of Bank of the North v. Akorede (supra).
The bank (sic) is entirely in agreement with this position of the law and is fortified by the exposition of the law in Halsbury’s Laws of England, Vol. 24 Article 196 where it is stated:-
“In the case of money on current account the statute does not run, in the absence of special contract or waiver until after demand either by issue of a writ or otherwise, is an essential ingredient in the cause of action for money lent”.
In the present case, Exhibits F, G, H, I are letters dated 26/3/90, 20th May, 1991, 23/9/94 and 15/4/96 respectively, and request for interest waiver.
“Furthermore in Exh. J., the appellant is shown to have made payment of N138.30 on the 28/8/90, which is an acknowledgement of his indebtedness to the respondent. It is to be pointed out here that though the applicant denied all the above facts, the courts is not in the least impressed or moved by the said denial, because I cannot see a situation where the respondent will go out of its way to gratuitously credit an amount to a customer’s account for the purpose of keeping the customer’s account alive for an anticipated suit.
Noteworthy of mention is Exhibit L, which is the latest communication between the applicant and the respondent dated 22/5/96, though marked “without prejudice”, the said letter is a clear acknowledgement that the applicant is indebted to the respondent.
“From the facts before the court, I am satisfied that the payment made in 1988 after which a request was made for waiver of interest was made to the respondent, the applicant made a payment of N138.31 on the 28/8/90 toward the liquidation of the overdraft facilities. See Exhibit J. The respondent made series of demands in 1990, 1991, 1994 and 1996 as per Exhs. F, G, H and I and the applicant responded by Exhibit L.
“It is my firm view that the cause of action never arose until after the demand and even the acknowledgement of the respondent in 1995. This action based on the above findings and principles of the law in support of same I hold that this action is not statute-barred.
The preliminary objection of the applicant is hereby dismissed”.
I have underlined in the ruling reproduced above parts of the ruling which form the basis of the appellant’s complaints in this appeal as distilled in his 3 issues for determination (supra).
Learned counsel for the appellant had contended as follows: Under his issue No.1, it is that the respondent who did not file a counter-affidavit is deemed to admit the facts in the affidavit of the appellant. See Sentinel Assurance v. Societe General Bank (1992) 2 NWLR (Pt.224) 495 at 503. Held a fact not denied is deemed admitted, and the court will admit same without much ado.
Also Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt.191) 266.
Thus the averment that the appellant operated his account last in February, 1988 and that he did not receive any demand letter till 1995 is deemed admitted.
The court ought to have discountenanced any fact put forward by the respondent, but it did not in this case.
“In his issue 2 the contention is that the learned trial Judge ought not to have accepted the entry in the statement of account of the appellant for 28/8/90 which was annexed to the writ of summons of the respondent, and that respondent wrote demand letters without calling oral evidence when the appellant had denied making such a deposits or receiving any such letters. In support of the legal principles counsel cited the case of Lijadu v. Lijadu (1991) 1 NWLR (Pt.l69) 627 and other authorities to show that the court had no competence to reconcile conflicting affidavit evidence without calling oral evidence.
Under his issue No.3, the contention is that the trial Judge ought not to have admitted in evidence, the letter marked “without prejudice” written by the appellant’s solicitors with a view to settling the matter amicably and it did not constitute an admission. She relied on the case of Fawehinmi v.NBA (No.2) (1989) 2 NWLR (Pt.105) 558 at 622 – 623 paras. H-A; George Ashibuogwu v. A.-G., Bendel State (1988) 1 NWLR (Pt.69) 138 at 169; Akanbi v. Alatede (Nig) Ltd. (2000) 1 NWLR (Pt.639) 125 at 146.
Learned counsel for the respondent on the other hand countered that the respondent opposed the preliminary objection on point of law and by this, adopted the facts, in the affidavit of the appellant in support of his preliminary objection such as paragraph 13 where he deposed: “That thereafter on 12th February the applicant paid the balance on his account as at 1979 which was N6,898.12 and then went further to request for an interest waiver”.
He submitted that in a case of this nature, it is paramount to establish at what point the cause of action accrued.
He cited Emiator v. Nigerian Army (1999) 12 NWLR (Pt.631) 362, (1999) 9 SCNJ 52 at 58 where “cause of action” is defined and other authorities.
He submitted that every debt becomes due upon demand in the absence of an agreement as to time of payment. Citing Ishola v. S.G. Bank (1997) 2 NWLR (Pt.488) 405, (1997) 2 SCNJ 19.
He concluded that after the payment in 1988, there was no time limited for payment of the outstanding and accrual of cause of action would depend on when demand was made.
It was pointed out that in paragraph 17 of the appellant’s affidavit, the appellant deposed that he got the first demand letter on 6th January, 1995 and then submitted that the cause of action accrued on that date.
Counsel for the respondent pointed out also that the learned trial Judge upheld this contention on page 74 of the records. He contended that what that court did in the later part of the ruling was to draw support for his position of the law by making references to other facts. In counsel’s view, reference to such facts were comments which cannot be regarded as an order and in this case does not form the fulcrum of the judgment. Bello v. Fayose (1999) 11 NWLR (pt.627) 510, (1999)7 SCNJ 286 at 291 cited. Counsel gave reasons why the court’s reference to facts not contained in the respondent’s affidavit in support of the preliminary objection does not vitiate the decision.
(a) A party raising a preliminary objection is deemed to have admitted the averments in the statement of claim, but demures that he cannot be called to answer them in law or that the court lacks jurisdiction. See Obada v. Military Governor, Kwara State (1990) 6 NWLR (Pt.157) 482 at 493-494, paras. G-A. If the applicant has admitted the averments in the statement of claim there is nothing precluding the court or any party from making unrestrained reference to them.
(b) The facts referred to are already before the court. By S. 74 of the Evidence Act the court can take judicial notice of facts before it.
(c) The whole idea of demurrer took root from the need to x-ray the entire facts of a case in the pleadings. See Order 24 rules 1 and 2 of the High Court (Civil Procedure) Rules, 1988.
Further, the so called reference to extraneous facts, the failure to resolve conflict in affidavits and the use
of a letter marked “without prejudice” did not occasion a miscarriage of justice. The Supreme Court held in the case of Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 141 at 162, paras. C-D, that for misdirection to be fatal, it must have occasioned a substantial miscarriage of justice. Where a court suo motu raises and considers new issues without calling upon the parties to address it thereon, it is a misdirection. However, unless the misdirection is so grave as to have occasioned substantial miscarriage of justice, an Appeal Court will not ordinarily interfere with the decision of the lower court. This is the decision of Supreme Court in the case of Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387 at 408, para. D.
In the appellant’s reply brief, his learned counsel repeated some of her submissions in appellant’s brief but made the following new points in response to the respondent’s reasons why the court’s reference to facts not contained in the affidavit of appellant in support of his notice of preliminary objection does not vitiate the decision.
She submitted that the law of demurrer has been abolished by virtue of Order 24 rule 1 of the High Court (Civil Procedure) Rules hence the filing of a statement of defence by the appellant. In the statement of defence the appellant made certain denials of facts contained in the respondent’s statement of claim. The appellant therefore could not have been said to have admitted the averments in the respondent’s statement of claim. Thus the appellant submits that the case of Obada v. Military Governor, Kwara State (1990) 6 NWLR (Pt.157) 482 is irrelevant and further urges the court to discountenance same.
(ii) Failure of the trial Judge to call oral evidence to ascertain the source of the deposit reflected in the statement of account for 28th August, 1990 after the appellant denied knowledge of same occasioned a miscarriage of justice.
This is so because, this was one of the premises upon which the Judge based his decision that the action is not statute-barred. See p. 74 lines 23-31.
She contended that the appellant ought to have been given fair hearing on the issue whether the respondent wrote demand letters in 1990, 1991 and 1994. Thus led to miscarriage of justice.
She concluded that the consideration of the facts which appellant complains of including the letter marked “without prejudice” formed the basis of the trial court’s decision. It led to miscarriage of justice.
I see that by the line of argument adopted in his submission, the respondent’s counsel seems to have taken the wind out of the contention in the brief of the appellant. This is so when he narrowed down the issue now before us. The question now is whether the court below could have arrived at the same decision that the action was not statute-barred, notwithstanding the wrong admission of the facts complained of by the appellant.
For the respondent, it was submitted that he would. For the appellant, the matter was not confronted head on. Rather the final paragraph of the reply brief insists that there was miscarriage of justice.
Before looking into that issue, I must spell out as follows:-
The ruling of the court below above reproduced, clearly demonstrates what trial Judge based his decision upon.
He based it, principally on some facts which were in the affidavit of the appellant and on the law. He only supported it with some facts which are not in the said affidavit but were in the pleadings and other processes before the court. Of the latter set of facts, the appellant now complains that the court below ought not to have admitted in evidence, and others ought not to have been relied on without oral evidence.
The respondent on his part, contends that those facts from the affidavit of the appellant and the law which the court relied on sufficiently sustain the decision of the court.
In the action the appellant had in the court below raised preliminary objection to the effect that the action is statute-barred by virtue of the limitation laws of Plateau State.
The respondent opposed this on points of law and relying on some facts deposed to in the affidavit of the appellant in support of his notice of preliminary objection.
In my respectful view, the learned trial Judge proceeded correctly and effectively in the first instance, when he set out the law applicable in determining whether an action in statute-barred, and thus when the cause of action accrues in an action for debt and then applied the law to the undisputed dates of 1988,1995 and 1996 from the appellant’s affidavit.
The law is clear that where the issue whether an action is statute-barred has been raised, the starting point is to determine when the cause of action accrued. See Adimora v.Ajufo (1988) 3 NWLR (Pt.80)
- In that case, Oputa, JSC, stated the principles. He said, “In dealing with limitation of actions, one of the most fundamental questions to answer is when did the cause of action accrue”. See also Egbe v. Adefarasin (No.2) (1987) 1NWLR (Pt.47) 1 at 20 Sc.
This is because time begins to run when the cause of action accrues. Fadare v. A.-G., Oyo State (1982) 4 SC 1. It is not easy in some cases to identify this time for the reason that its determination depends on the surrounding, and at times peculiar circumstances of the case. This difficulty becomes understandable when it is realized that a cause of action is said to consist of every fact which the plaintiff ought to prove when set out in his pleading to support his entitlement to judgment.
In the case of Adimora v.Ajufo (supra) Oputa, JSC, states that accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can commence and maintain his action.
In Fred Egbe v. Justice Adefarasin (No.2) (1987) 1 NWLR (Pt.47) 1 at page 20 the phrase “cause of action”, is said to mean the factual situation stated by the plaintiff if substantiated, entitles him to a remedy against the defendant. See Letang v. Cooper (1964) 2 All ER 929; Ibrahim v. Osim (1987) 4 NWLR (Pt. 67) 965; Emiator v. Nigerian Army (1999) 12 NWLR (Pt.63l) 362 at 369-370 per Kalgo, JSC.
What all this points to is that various events may have occurred or circumstances and facts arise over time, which would when complete constitute the cause of action. If not complete, no cause of action would accrue.
When a cause of action accrues, differs from action to action.
It is trite law that in an action for the recovery of debt, the cause of action accrues upon demand for the payment of the debt. If 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 at 19, also reported in (1997) 2 NWLR (Pt.488) 405 at 422. Said Iguh,
JSC in that case:- “Generally, a debt is repayable either on demand or on notice given or upon other condition agreed upon by the parties – See Lloyds Bank Ltd. v. MargioLis & Ors. (1954) 1 All ER 734 at 748; Joachimson v. Swiss Bank Corporation (1921) All ER 92 at 99.”
These principles relating to recovery of debt apply also to debts arising from overdrafts, facilities or loans granted by banks to their customers. 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 Angyyu v. Malami (1992) 9 NWLR (Pt.264) 242 at 252.
When therefore, as in this case the issue is whether the claim of the bank for a debt owed it arising from overdraft facilities granted its customer, who is the appellant herein, the court ought to and did in fact identify what facts and circumstances required to be complete, and have indeed become complete in order to determine whether a cause of action had accrued. Here, it is whether the respondent bank has given notice or made demand. There is no doubt that no specific date was agreed for the sum left unpaid after the payment in 1988 by the appellant.
When the appellant asked for interest waiver, the matter lay open again for the appellant and for payment thereof to become due on demand by the respondent.
Therefore, I should think that if it is, as the appellant now contends, that he did not receive any of the notices or demands which the respondent averred in its statement of claim were made in 1990, 1991,1992,1994, the notices admitted received by the appellant in January, 1995 and 1996 constitute the first notice since 1988. In that case, the cause of action will then be said to accrue from then.
Right of action in this case thus accrued, and the respondent’s suit filed in 1996 is not statute-barred. The limitation law requires a five-year period to extinguish that right.
The foregoing would tally with the conclusion reached by the court below. It is sound.
It is therefore not surprising in the light of the above, that the respondent, appreciating the position, was prepared to rely on the appellant’s affidavit evidence to defeat the appellant’s argument. He was entitled to do so. The law recognises the right of a party to a suit to adduce his own evidence or to rely on the evidence of the opposite party or to admit it. The relevant facts for the determination of the issues which arose, were available before the court in the affidavit of the appellant. The respondent did not need to depose to any other fact. His counsel relied on these and points of law, and said so, and rightly too.
The learned trial Judge, as the excerpts from his ruling, set out above show, determined the matter based on the correct legal principles and authorities applicable to the recovery of debt which he quite correctly cited.
I am of the view that that sufficiently determined the matter before him. He seemed to have realised this.
For, when in the latter part of the ruling, he began to go into the other facts, now complained of, about the payment of N130,61 on 28/8/90 into the bank account of the appellant and later the letter marked “without prejudice”, he preceded it with the words, “Further more……..” See page 74 line 24 of the records (in the ruling set out above.
In my view, the court below did not principally rely on those facts. They did no substantial injustice.
I am to add that it is not only to an affidavit evidence a court must always look to determine if an action is statute-barred.
The statement of claim is recognised as a matter of law, as the first place to look to determine if there be a cause of action and when it accrued. See G. O. C. v. Adio (1995) 2 NWLR (Pt.379) 570 at 587. See also Egbe v. Adefarasin (supra), also reported in (1987) 1 SC l.
To the question, how does one determine the period of limitation, Oputa, JCA in that case answered thus:-
“The answer is simple by looking at the writ of summons and statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses …..”
The definition of the phrase “cause of action” in Adimlora v. Ajufo (supra) at page 17 as:-
“every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment.”
further supports the view that facts traversed in the statement of claim are relevant to determining when the cause of action accrued and the limitation period began to run.
I dare say that the appellant ought to have considered the writ and its supporting affidavit and the averments in the statement of claim before raising the issue as a preliminary point. Had he done so, it would have been found more prudent to let the issue go to trial along with the substantive matter. Having created controversies by the defences which he raised in his statement of defence, he should have let trial viva voce evidence to proceed. Having raised the dust, how can he now complain that the court ought to have called oral evidence to resolve what his counsel now calls, conflicts in the facts before the court: I will go no further than this.
It is my view however that the court did not require to call any oral evidence. The decision which it came to is supported by the admissible facts before him to which he rightly applied the law. He came to the right decision, even without those facts which the appellant complained of under the appellant’s issues No.1 and No.3.
Learned counsel for the appellant has, in her reply brief of argument proffered a response to the respondent’s submission that the preliminary objection raised by the appellant amounts to a demurrer, by which he has admitted the averments in the respondent’s pleadings. She contended that is not the position of the law, for it, has been abolished by Order 24 rule 1 of the High Court of Plateau State Civil Procedure Rules. Therefore, the defendant could not be said to have admitted the said averment in the plaintiff/respondent’s statement of claim, and so the case of Obada v. Military Governor, Kwara State does not apply.
This submission in my view is sound. The matter is outside the issue of demurrer. Both parties have filed their pleadings.
In spite of what had been stated about the status of the writ of summons and statement of claim in determining when the cause of action arose, I hasten to affirm that that was mentioned to show that the respondent ought to and in a proper case, the court would look, at the processes. In this case, however, I resolve the issues by holding that the learned trial Judge did not rely entirely on the facts in the pleadings, needed not and could have come to the same decision without them.
No miscarriage of justice can be said to have occurred as appellant seeks to urge on this court. I agree with learned counsel for the respondent that the court’s use of these facts was only to buttress his earlier decision based on points of law and other facts in the affidavit.
Since the decision based on the admissible facts and the law is sustained without the inadmissible evidence, no miscarriage of justice has occurred.
If the learned trial Judge had misdirected himself in applying those facts, the question then is whether the misdirection is fatal that is to say, whether it led to substantial miscarriage of justice See Nwaba Mora & Ors. v. Nwalusi & Ors. (1962) 2 SCNLR 73, (1962) 1 All NLR 681 at 689 (Privy Council). Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 162 S.C.
For where the decision of a trial Judge is not based solely or substantially on the evidence complained of, the judgment is not disabled. It will be the other way if the evidence formed the basis for his decision.
In Saude v. Abdullahi, Uwais, JSC (as he then was) said:
“There is no doubt that the Court of Appeal committed a serious misdirection in its lead judgment……….when it inappropriately raised and considered new issues in the appeal before it. The question is:
What is the effect of the misdirection?
Unless the misdirection is so grave as to occasion substantial miscarriage of justice, an Appeal Court will not ordinarily interfere with the decision of the lower court.
In Isaac Ayoola v. Adebayo & Ors. (1969) 1 All NLR 159 at p. 164. See Omouka v. Omogui (1993) 3 SCNJ 198; Obodo v. Ogba (1987) 2 NWLR (Pt.54) 1, “not every slip can cause an appeal to be allowed.”
It is correct that available legal authorities show that a letter marked “without prejudice”, may not be admitted in evidence, so also evidence of facts emanating from offers of compromise or attempt at or negotiation for, out of court settlement of disputes. See Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt.105) 558 at 622- 623. Ashibuogwu v. A.-G., Bendel (Supra); Akanbi v. Alatede (2000) 1 NWLR (Pt.639) 125. I agree with the submission of the appellant’s learned counsel on this state of the law.
I have however come to the decision, after due consideration of the applicable law and all the circumstances of this matter and the decision of the court below, that the action is not statute-barred.
The decision is not disabled and remains valid.
The use of the letter and the other evidence complained of, does not amount to such grave misdirection as is fatal to the decision or occasion such substantial miscarriage of justice as would compel this court to set aside the ruling and allow this appeal. The respondent’s issue is determined in the affirmative against the appellant. The appellant’s issues with their grounds of appeal therefore fail. The appeal itself in the premises, fails and is dismissed.
The decision of the learned trial Judge, Dakyen, J., in his ruling delivered on 2/3/98 is affirmed.
There will be N5,000.00 costs against the appellant in favour of the respondents.
Other Citations: (2002)LCN/1131(CA)
