African Continental Bank Plc V. Nwanna Trading Stores (Nig.) Ltd. (2006)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

The appeals CA/A/113/2001 and CA/A/189/2003 emanated from the suit No NSAC/MIN/169/95 at the High Court of Justice Niger State Minna Judicial Division. The appeal CA/A/113/2001 is against the judgment delivered on 2/9/97.

While the appeal No CA/A/189/2003 is against the ruling delivered on the 12th of May 2003. Both appeals were consolidated by an order of this court made on the 6th of April 2005. The two appeals are off-shoots of the same suit between the same parties and in respect of the judgment in the suit and the execution of the judgment thereafter respectively.

Facts

In the appeal CA/A/113/2001 – the appellant African Continental Bank Plc, as plaintiff in suit No NHS/MIN/169/95 had a banker and customer – relationship with the respondent Uwanna Trading Stores (Nig.) Ltd. at its Branch Office in Minna-Niger State.

The respondent maintained a current account No 20027 with the appellant at this branch – whereupon it was approved an overdraft facility to the tune of N200,000 by the appellant. The respondent defaulted in the maintenance of the account and was indebted to the bank to the tune of N119,711.90k (One hundred and nineteen thousand, seven hundred and eleven naira, ninety kobo). By an application for issuance of a writ of summons on the undefended list, the appellant, as plaintiff commenced a debt recovery suit. In view of the pleadings later filed, the case was removed to the general cause list. The amount reflected on the appellants writ of summons was N199,711.90 as at 31/5/95. Interests thereon at 21% per annum until judgment and 10% per annum until judgment debt is fully paid.

The claim was predicated on a sum of N200,000 granted and allegedly fully drawn by the defendant/respondent. Respondent filed a counter claim. During the course of trial before the lower court, the appellant examined and cross-examined one witness. The trial court struck out the case of the appellant for lack of diligent prosecution following an application to that effect by the respondent’s counsel. The respondent led evidence on the counter claim, parties submitted written addresses. In a considered judgment delivered on 2/9/97, the lower court, dismissed the appellant’s suit No 17/3/97, and gave judgment to the respondent on the counter-claim. Dissatisfied with the decision of the court – the appellant appealed to this court. Records were settled and briefs of argument exchanged in accordance with the Rules of the Court of Appeal 2002. At the hearing of this appeal – the appellant adopted and relied on the appellant’s brief deemed filed on 21/5/02 and the appellant’s reply brief filed on 11/4/05. Six issues for determination were disseminated from the six grounds of appeal filed as follows:

(1) Was the trial court right to, on 2/9/97 suo motu dismiss appellant’s suit which suit same court had on 17/3/97 struck off and which has not been relisted, thus no longer before the court and without asking parties to address it on it?

(2) The counter-claimant having on her affidavit evidence admitted committing banking fraud against the appellant, was trial court right to have still heard the counter-claim, and institution of justice to further the counter-claimants base action?

(3) The appellant’s PW1 having given copious, credible and convincing evidence capable of sustaining the appellant’s suit, was the trial court right to, on 17/3/97 strike out the appellant’s case instead of closing her case and asking defendant to open her defence.

(4) Whereas appellant has filed both reply and written address to the counter-claim was the court right to assume that the counter-claim was undefended and thereby entered default judgment against the appellant.

(5) Was there any cause of action and even evidence to support the judgment given in respect of the counterclaim?

(6) Whereas the appellant/judgment debtor still has movable assets worth over N651,360.00 in Niger State, was the trial court proper to allow the attachment and sale of the appellant’s banking premises without first attaching the movable property as well as comply with the statutory conditions.

The respondent raised an objection in respect of grounds 2 and 6 of the grounds of appeal. Two issues for determination were distilled from the remaining four grounds as follows:

(1) Whether, in the circumstances of this case the striking out and later dismissal of the plaintiff’s case by the trial court were improper and resulted in miscarriage of justice.

(2) Whether the defendant proved its counter-claim.

Before I consider the objection raised to grounds two and six of the appellant’s grounds of appeal. I am duty bound to remark on the shoddy and inelegant brief of the appellant. I regard the brief as verbose and devoid of clarity. A brief is an important medium in the determination of an appeal particularly in doing substantial justice between the parties. Hence a good brief shall be brief, precise, clear and intelligible, as it is meant to assist the justices in the delicate task of decision making. It is impossible for the court to make out a case for the parties on the record of appeal. Counsel must be reminded that bad briefs complicate and slow down the pace of the work of appellate courts. Unfortunately, however bad, inelegant or prolix a brief may be, it still has to be considered in the interest of justice. Akinkugbe v. Bucknor (2004) 11 NWLR (Pt. 885) pg. 652; Olafisoye v. F.R.N (2004) 4 NWLR at 864 pg. 580; Adeniran v. Ashabi (2004) 2 NWLR (Pt. 857) pg. 375.

The respondent objected to grounds two and six of the grounds of appeal. The respondents counsel submitted that the documents marked “supplementary record of appeal” filed on 15/5/02 and another document marked as “bundle of fresh evidence” cannot be part of the record of appeal until the lower court gives its ruling on the issues of sale of the banking premises. The counsel observed that the Court of Appeal lacks jurisdiction to hear an appeal directly against the sale of immovable property in execution of judgment. Such application can only be heard to set aside such sale if made within twenty- days thereafter on the ground of any material irregularity in the conduct of sale by virtue of section 46 and 47 of the Sheriffs and Civil Process Act Cap 123 Vol.3. Laws of Niger State. Counsel cited cases as follows:

B.O.N v. N.B.C.I (1990) 5 NWLR (Pt. 150) pg. 263 at 272 C-D

Anueyiagu v. Dep Sheriff, Kano (1962) 1 All NLR (Pt.2) pg. 52 at 944-5

Ground six being a direct challenge on the sale of the banking premises is premature until the motion to set aside the sale has been determined. This court is urged to discountenance ground 6 and issue No 6 formulated there from. Counsel further submitted that ground 2 and its particulars allege criminality on the part of the respondent.

There was an amendment to the statement of defence and counterclaim.

Parties joined issues on the amended statement of claim and amended statement of defence – for trial on the general cause list.

An appellate court will not entertain on appeal an issue that was not raised before the trial court. The appellant did not seek leave of court to raise this fresh issue of fraud at an appellate court. An amendment can be made at any stage of the proceedings before judgment. The appellant did not object to the application for amendment. The appellant’s ground 2 must be struck out and issue two couched there from must be discountenanced. Dahiru v. Kamale (2001) 11 NWLR (Pt.723) 224, (2001) FWLR (Pt. 62) pg. 1855

The 1st respondent observed also that the claim of the appellant must be based on N119,711.90 and not N199,711.90.

The appellant in the reply brief submitted that the supplementary record of appeal transmitted to this court from the High Court Minna Niger State on 15/5/02 is vital and relevant for the proper determination of the two appeals No CA/A/189/03 and CA/A/113/01 before this court. The appellant did not reply to the relevancy of the other document marked “bundle of fresh evidence” to the appeal CA/A/113/01.

The appellant abandoned ground six and issue six in the appeal CA/A/133/01 as the issue raised therein has been taken care of in appeal CA/A/189/03. The appellant agrees that the amendment to the statement of defence and counterclaim is proper but the facts relied upon to prove the issues raised portray an illegal transaction.

The court failed to take note of this illegality.

The appellant further replied that the respondent was not misled by the amount claimed – as at (pg 74) of the record – the respondent testified that they were not liable to N199,711.90 and it made reference to the same amount in the address-while the judgment of court was based on this same amount. The appellant did not deem it necessary to file a reply to the counter-claim though it adequately reacted to the counter-claim in its address.

I have duly considered the observation and objection of the respondent’s counsel. I agree with the appellant’s counsel that the supplementary record will be required for the determination of the issues raised in the two appeals CA/A/133/01 and CA/A/189/03 now pending before this court. The appellant voluntarily abandoned ground 6 of the grounds of appeal and issue No 6 distilled there from as being incompetent in Appeal CA/A/189/03. The relevant issue having been abandoned is hereby struck out. The appellant conceded to the amendment effected to the statement of defence but complained about the quality of the evaluation of evidence in respect of the fraud averred in the pleadings by the trial court.

The issue of evaluation of evidence by the trial court shall be adequately considered under issue No 5 in the appeal. The amount claimed shall be that which the parties agreed upon in their pleadings and upon which the court based its judgment. It is trite that where there is an amendment to pleadings, the amendment takes effect not from the date of the amendment, but from the date of the original document, and the amended pleading substitutes the original one. Any other issue outside the amended pleadings does not arise for determination. Salami v. Oke (1987) 4 NWLR (Pt. 63) pg. 1; Mobil Oil (Nig.) Plc. v. I.A.L 36 Inc. (2000) 6 NWLR (Pt. 659) pg. 146.

In the instant case only the statement of claim and the amended statement of defence and counter claim shall be relevant for consideration in this appeal. Equally I consider the document captioned as bundle of fresh evidence as irrelevant for the purpose of this appeal, as the appellant did not allude to it in the reply brief.

The document shall be discountenanced in this appeal. It is accordingly expunged from record.

This court finds it absolutely necessary to recouch and compress the issues for determination as raised by the appellant for ease of reference as follows:

(1) Whether the trial court can suo motu make an order to dismiss a suit it had earlier on in the proceedings struck out?

(2) Whether relying on the quality of the evidence before the court the learned trial Judge had rightly entered judgment in favour of the respondents counter claim?

(3) Whether with the nature of the proceedings the trial court was right to assume that the counter-claim was undefended and consequently enter default judgment against the appellant.

Issue No.1

Whether the trial court can suo motu make an order to dismiss a suit it had earlier in the proceedings struck out?

The appellants counsel submitted that an action struck out for want of diligent prosecution can be re-listed, where as an order of dismissal made in respect of the same suit on 2/9/97 deprived the appellant the opportunity of re-listing the case. The court can therefore not alter the order of striking out made on 17/3/97 without inviting the counsel in the matter to address it on it. Prior to the order of dismissal the appellant did not apply to the court to re-list the suit struck out. The appellant by the order of court was forever shut out of justice. The appellant was not only denied justice but also fair hearing of its suit. The court should consider the proceedings a mockery of justice. The appellant cited the cases:

Alhaji Haruna Kassim v. Hurman Ebet (Tradings as Cash Stores) (1966) 1 ANLR 55, (1966) NMLR 123; Ogannagbe v. Giwa (1969) 2 ALNR 35; Shugaba v. U.RN Plc. (1999) 11 NWLR (Pt.627) pg. 459; S.G.B (Nig.) Ltd. v. Aina (1999) 9 NWLR (Pt. 619) pg. 414 at pg 417

The respondent replied that the case was transferred from the undefended list to the General cause list. Parties exchanged pleadings and the case proceeded to trial. The appellant as plaintiff called the 1st witness. After examination – in – chief and cross-examination the appellant asked for an adjournment to call further witnesses.

The court granted four adjournments thereafter – but the appellant failed to produce the witnesses. On 17/3/97 – the appellant and his counsel did not appear in court hence the court struck out the plaintiff’s claim. The court proceeded to hear the respondent’s counter-claim. In the final judgment the trial court decided in favour of the counter claim while dismissing the plaintiff’s claim. The appellant did not relist the suit before the final order of dismissal was made. The appellant defended the counterclaim. The appellant’s case ceased to be pending after the court proceeded with the trial of the counter-claim and gave final judgment on same. The whole argument on miscarriage of justice in view of the order of dismissal becomes academic and should be discountenanced because of this appeal. This court now has the opportunity to examine the plaintiff’s case. In the absence of any cogent evidence to establish the plaintiff/appellant’s claim before the trial court, the court was right to have considered the plaintiff’s case on its merit and make a final order of dismissal. The respondent cited the case of Ekong v. Udo (2002) 16 NWLR (Pt. 792) pg 1 at pgs. 25-26

Issue No.2

Whether relying on the quality of the evidence before the court the learned trial Judge had rightly entered judgment in favour of the respondent’s counter-claim?

The appellant submitted that the respondent agreed to repaying her over-draft by issuing dud cheques. The respondent declared this in the affidavit in support of her notice of intention to defend and affidavit of good defence out of time. Vide (pages 44, 51 – 53 of the record). The respondent never denied that it was in full knowledge of the fact that the cheques were returned.

The counter-claimant claimed that the cheques were not presented and that this was detrimental to it but the appellant did not explain this. The respondent did not establish that it has an account with those banks. The respondent did not show how it had complained about how its account was operated. He wrote a letter of undertaking on 5/6/91 after his cheques had been returned uncleared. The appellant was right to have debited the respondent’s accounts with the returned cheques. Appellant cited cases as follows:

Barclays Bank D.C.O. v. Hassan (1961) 4 ANLR pg 836 at pg 866; Bank of the North v. Yau (2001) 10 NWLR (Pt. 721)pg. 408; Obijiaku v. NDIC (2002) 10 NWLR (Pt. 774) pg 201.

The court ought to have rejected the respondent’s counter-claim as same was taunted with illegalities. The respondent amended its statement of defence and counter claim by expunging the incriminating assertions made in the two documents. The amendment did not take the original documents out of the case file and the appellate court can still consider a document withdrawn or struck out so as to do substantial justice in this matter. This court will see that the judgment of the lower court is perverse and same should be set aside. The counter claimant must not be allowed to benefit from its illegality.

The appellant cited cases in support of the foregoing submission as follows:

South Eastern Newspaper Corporation v. Anwara (1975) 9-11 SC 55

A.-G., Edo & Delta States v. Jessica Trading Co. (1999) 5 NWLR (Pt. 604) pg 500 at pg 502

Okafor v. Okafor (2000) 11NWLR (Pt.677) 21, (2000) FWLR (Pt. 1) pg 17 at pg 19

Seriki v. Are (1999) 3 NWLR (Pt. 595) pg 469 at pg 472

Sodipo v. Lemminkainen & ors OY (1986) 1 NWLR (Pt.15) 220, (1986) All NLR pg 78 at 97

There was no cause of action before the court, as the mere exercise of right of action by suing a party cannot give rise to a counter claim – particularly when the original suit was not bad in law and still pending.

The evidence of DW 1 had no evidential value. There was no counter claim for any specific amount.

There was no evidence of financial and corporate standing of the counter claimant to warrant the award of N500,000 as general damages. There was no evidence of how much was in the respondent’s account – or how much was left there. This court should hold that there was no proper evaluation of the evidence available by the trial court – in effect the counter claimant never had a cause of action and never proved any.

The appellant cited cases as follows:

Dagazau v. Borkir International Ltd. (1999) 7 NWLR (Pt. 610) pg 293

Gbafe v. Gbafe (1996) 6 NWLR (Pt. 455) 417 at pg 578; Tsokwa Motors (Nig) Ltd v. Awoniyi (1999) 1 NWLR (Pt. 586) pg 199 at 200

The respondent replied that the counter-claimant called one witness who testified that there was no loan of N200,000 granted by the appellant. It denied liability for the plaintiff’s claim of N119,711.90.

The cheques exhs. D – D1-10 drawn on other banks paid in by the counter claimant were paid into her account and later entered as having been returned unpaid. The cheques were never sent to those other banks for clearance but the counter-claimants account was always debited. The bank charged commission on over-draft and handling charges on uncleared cheques. The counter-claimant gave evidence of running her account until it was abandoned in 1992 because of the manner the account was handled. The appellant never sent out the uncleared cheques for clearance-while it continued to charge interests and commissions on them. The appellant’s counsel did not cross-examine the counter-claimant’s witness neither did it offer any defence to the counter-claim. There is no appeal against the award of N500,000 – this court is urged to affirm the decision and award of damages made by the lower court. The respondent referred to a case in support of his submission Apena v. Aiyetobi (1989) 1 NWLR (Pt. 95) pg 85 at pg 97. Issue No 3.

Whether with the nature of proceedings the trial court was right to assume that the counter-claim was undefended and consequently entered default judgment against the appellant.

The appellant submitted that at the time the claim was struck out, there was enough evidence before the court to enter judgment for the appellant. The appellant’s PW 1 gave evidence that the respondent was indebted to the appellant. The appellant tendered exhibits A-D.

Rather than closing the case of the appellant and proceeding to the defence of the respondent – the trial court struck out the appellant’s claim. This could have given the court opportunity to consider the case of both parties before arriving at any decision on same.

Thereafter – the court suo motu without re-listing the suit made an order of dismissal in respect of same. The appellant was in the process of securing more witnesses in support of his case when the case was struck out. The court failed to consider the reply to the counter claim and relied on non-calling, of witnesses by the appellant in the counterclaim to enter a default judgment. The court based the judgment on the assumption that the counter-claim was not defended.

In the case of Oshodi v. Eyifunmi (2000) 13 NWLR (Pt.684) pg 298 at pg 390 the Supreme Court held that:

“A reply is the defence of the plaintiff to the counterclaim of the defendant, and shall therefore be filed to answer the defendant’s averment in his counter-claim.

In short a party must succeed on the strength of its claim – and not on the weakness in the case of the other party to produce evidence.

This court should see the case of the appellant as defended and set aside the default judgment given in the counter claim. The appellant referred to the cases of:

Victoria Anisiuba v. Anthony Emodi (1975) ECSLR pg 355; Oyewole v. Oyekola (1999) 7 NWLR (Pt. 612) pg 560 at pg 561; Oseni v. Oniyide (1999) 13 NWLR (Pt. 634) pg 258 at pg 263; Nnamdi Azikiwe University v. Nwafor (1999) 1 NWLR (Pt. 585) pg 116 at pg 125 -126.

In reply the respondent submitted that the case was not heard on the undefended list but on pleadings on the general cause list. At the time of hearing of the matter – the appellant relied on the statement of claim, and the respondent on the amended statement of defence and counterclaim. The appellant was in court during the hearing of evidence by the respondent in proof of the counter-claim. Apart from the reply to counter claim in answer to the original counter claim the appellant did not file any defence to the new counter-claim. When the appellant was called to cross-examine the counter-claimant’s witness the plaintiff’s counsel replied – in the negative. When asked to open the appellant’s defence to the counter-claim – he also replied that the appellant had no defence to the counter-claim. The respondent submitted further that this case could only be tried based on the evidence adduced in proof of issues that were joined based on the pleadings filed – the counter-claim and the amended defence thereto.

The Court is urged to resolve the issue in favour of the respondent.

I have given due and painstaking consideration to the copious submissions of counsel on the issues raised for the determination of this court in this appeal. I shall consider the three issues seriatim. Before then I have to highlight certain facts of common interest and emphasise the claims of the parties before the lower court before the consideration of the issues.

The appellant as plaintiff and respondent as defendant/counter claimant prior to the filing of this action enjoyed a bank and customer relationship – whereupon the respondent operated a current Account No. 20027 with the appellant at its Minna Branch. The appellant’s claim was based on the respondent’s defaulting in repaying the loan received from the appellant. Hence the appellant’s claim in the writ on the undefended list reads as follows:

(a) The sum of N 199,711 as at 31/5/95

(b) Interest at 21% per annum until judgment is given, thereafter at 10% per annum until judgment debt is fully paid

(c) Costs

The matter which was originally filed on the undefended list was transferred to the general cause list when parties filed pleadings as follows:

The appellant filed the statement of claim – and the respondent filed its statement of defence and counterclaim.

The appellant filed a reply to the counter-claim.

The appellant put the 1st PW into the box – who gave evidence and was cross-examined on 25/6/96. The appellant applied for a date to adduce further evidence by calling additional witnesses which the court granted. The appellant failed to present his witnesses on four adjourned dates granted by court for this purpose. On 17/3/97 the appellant did not appear in court, on the application of the respondent’s counsel the court struck out the appellant’s claim. Vide (page 71 of the record).

The court proceeded to hear the respondent’s counter-claim.

An application by the respondent to amend the statement of defence and counter-claim was granted. The appellant did not amend his pleadings. The respondent adduced evidence based on the amended statement of defence and counter-claim. The appellant did not cross examine DW 1- in the counter claim it did not adduce any evidence either but proceeded to address the court thereafter. The learned trial Judge in his judgment in respect of the counter-claim concluded that:

“I have studied exhibits AC, BC, CC/and DC as well as exhibits D 1 – D10. I find the counter claimant’s assertions tenable. The organization has established and proved their claim against the defendant. The defendant’s claim against the counter-claimant has no basis and is dismissed. Judgment is hereby entered in favour of the counter-claimant i.e. Nwanna Trading Stores (Nig) Ltd. against African Continental Bank Plc”.

The learned trial Judge took into consideration the status of the parties and the gravity of damages caused before awarding the counter-claimant N500,000 and N5,000 costs against the appellant. Vide (pages 85 – 86 of record).

The learned trial Judge made an order on 17/3/97 of striking out the appellant’s claim for non-appearance of the appellant and counsel. At that stage of the proceedings parties had filed and exchanged pleadings. The appellant had examined the first witness and the court obliged the counsel an opportunity to call more witnesses by adjourning the case. The court further in the judgment on the counter-claim made an order dismissing the plaintiff’s case which he had already struck out before commencement of trial in the counter-claim.

I regard these steps:

(1) Striking out of the appellant’s claim on 17/3/97 rather than closing same

(2) Making an order of dismissal in respect of the same claim in a counter-claim of the respondent, based on no premises as an array of procedural irregularities.

The appellant’s claim was then part-heard-the proper step was to have closed the appellant’s case and call upon the respondent to put in its defence so as to dispose off the case on merits.

As a court is not competent to revive a suit struck out save on the application of either party, the order of dismissal was wrong.

Woluchem v. Wokoma (1974) ANCR 543 at pg 555, (1974) 3 S.C 153; (1974) 3 SC 153.

The court went on to dismiss the claim suo motu without any request by any of the counsels, neither were they invited into the matters so as to address the court on the propriety of granting the order of dismissal in respect of a matter already struck out. The court made the order based on the evidence in the counter claim whereas the appellant’s claim was quite distinct and separate from the respondent’s counter claim. The order was made by the court from the blues – and devoid of any legal backing. I regard the order of court in the circumstance as a grave irregularity. The courts of law do not make an order in vain but for a purpose and the purpose must be definite – and identified. This is not the position in the circumstance of this case where the order of dismissal had no basis or foundation. The appellant had credible evidence before the court at the material time of striking out of the suit on which the respondent might base a plausible defence. The evidence of PW1 then before the court on perusal adequately summed up the case of the appellant.

It is only where the plaintiff had on the merits failed to prove his case that a verdict of dismissal could be recorded. A court of law has no jurisdiction to raise and decide an issue or point of law which was not raised or canvassed or relied upon by the parties before it. It has no power suo motu to raise prayers not sought by parties and proceed to grant them. Where a court raises an issue suo motu it has a duty to give parties an opportunity to make their comments on them.

Ebba v. Ogodo (1984) 1 SCNLR pg 372; Juwo v. Shehu (1992) 8 NWLR (Pt. 258) pg 129; Kuti v. Balogun (1978) 1 SC 53; Olusanya v. Olusanya (1983) 1 SCNLR pg 134.

Going a step further the order of dismissal made by the learned trial Judge does not in my view accord with the Constitutional provision of fair hearing as enshrined in section 33(1) of the 1979 Constitution. The appellant was not heard when the court made an order of dismissal of his claim. The attribute of fair hearing presupposes that the court or tribunal shall hear both sides not only in the case but also on all other material issues before reaching a decision in the case which may be prejudicial to any party in the case. Natural justice demands that a party must be heard before the case against him is determined.

Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt.53) page 678; Umar v. Onwudine (2002) 10 NWLR (Pt. 774) page 129.

The counsel for the appellant was present in court throughout the hearing of the counterclaim – and he was not invited by court to comment on the initial claim.

I do not see the step taken by the learned trial Judge as a mere procedural error but a mistake which goes to the root of the case.

Since it is the saying that an unfair method cannot produce a fair result the normal steps to take in the instance of this case is to set aside the order of dismissal. Issue No.1 is resolved in favour of the appellant.

Issue No.2

Whether relying on the quality of the evidence before the court the learned trial Judge had rightly entered judgment in favour of the counter-claimant?

I need to specify that a counter claim is a claim presented by a defendant in opposition to or deduction from the claim of the plaintiff.

In other words it is a claim which if established will defeat or diminish the plaintiff’s claim. It is also a means whereby a debt could substantially or materially be disputed. A counter claim is a separate and independent action from the action in which it is raised.

Animashaun v. Olojo (1990) 6 NWLR (Pt. 154) pg 111; Oduwole v. L.S.D.P.C (2004) 9 NWLR (Pt. 878) pg 382.

The question raised by this issue is that of evaluation of evidence by the trial court. Whether it had rightly found for the counterclaimant on the evidence available. In proving an issue in a civil action the evidence of both parties to the action is put on an imaginary scale and weighed to see where the scale tilts based on preponderance of qualitative and probative value of the evidence adduced before the trial court. Mogaji v. Odofin (1978) 4 SC 91; Jack v. Whyte (2001) 6 NWLR (Pt. 709) pg 266.

A court of appeal will not interfere with a finding of a trial court where it is supported by cogent and convincing evidence, except where the finding is shown to be perverse or based on the wrong principle of law. Woluchem v. Gudi (1981) 5 SC 291; Ebba v. Ogodo (1984) 1 SCNLR 372; Kyari v. Alkali (2001) 11 NWLR (Pt. 724) Pg 412.

At the hearing of the counter claim – there was an amended statement of defence and a new counter claim, apart from the reply to the counter claim in answer to the original counter claim. There was no defence to the new amended counter claim. The case could only be tried by the trial court based on the evidence adduced in proof of issues that were joined on the pleadings filed. The position before the trial court in the counterclaim was that the appellant on cross-examination failed to establish that it approved and granted N200,000 facilities to the counter-claimant, and that it made use of such facility. How the appellant came about the claim of the debt of N119,711.90 or N199,711.90 was not properly explained. The counter-claimant complained that the account was not properly run by the appellant. The appellant during trial of the counterclaim did not cross-examine it also did not put in any defence to the counter-claim. The appellant’s counsel said at the hearing of the counter claim that:

“We have no defence to the counter-claim”.

It is trite that when averments in pleadings are not denied or controverted – they are deemed to be admitted. The appellant referred to the documents in the record to which this court can refer so as to do substantial justice. The reply to the counter-claim is a bundle of facts pleaded. Parties can only plead facts. In other words – pleadings are only facts and not evidence. Parties only plead facts and not evidence or law resulting from the facts. Parties must give evidence in support of their pleadings.

U.A.C v. Owoade 13 WACA 207;

Peenok Investments Ltd. v. Hotel Presidential Ltd. (1982) 12 SC 1;

Thanni v. Saibu (1977) 2 SC 89.

The appellant’s counsel vigorously addressed the court thereafter. I have to emphasize also that addresses of counsel cannot alters the acceptability of the primary evidence coming from the witnesses in a proceeding. Counsel’s address is not a substitute for the evidence in court.

Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) pg 637; N.A.B Ltd v. Felly Keme (Nig.) Ltd. (1995) 4 NWLR (Pt. 387) pg 100.

The appellant failed to plead or give evidence in support of the fraud alleged in respect of the cheques issued by the counter-claimant.

It is not the duty of the court to fish round for evidence in support of a party’s case neither should a court be left to speculate. It is apparent that in the evaluation of evidence by the trial court in the counterclaim the imaginary scale tilts in favour of the counter-claimant.

This court has no reason to tamper with the findings and conclusion of the lower court in the circumstance of the case. This issue is resolved in favour of the counter claimant.

Issue No.3

Whether with the quality of the evidence at the trial court it was right to assume that the counter-claim was undefended and consequently entered judgment against the appellant.

Where there is a dispute between a bank and its customer in relation to recovery of loan advanced by the banker to customer the questions the court should normally consider are:

(1) Was the defendant granted a loan by the plaintiff

(2) If so how much

(3) What was the interest agreed

(4) How much if any has the defendant paid out of the loan

F.B.N Plc v. Obeya (1998) 2 NWLR (Pt. 537) pg 205 at pg 207.

The claim of the appellant before the trial court was predicated on an alleged overdraft of N200,000 granted and fully utilised by the respondent. The request for the overdraft was made on exh A and supported by a letter of undertaking. The evidence of full withdrawal of the loan is exh D – the statement of account.

In the amended statement of defence and counterclaim the respondent denied the claim. The appellant did not file a reply or in any way react to the amended statement of the defence and counterclaim.

The claim of the appellant for the outstanding loan was struck out on 17/3/97 for lack of diligent prosecution based on failure to produce further evidence having requested for time to do so from court. There was virtually no pleadings filed to the counterclaim.

During the hearing of the counter-claim the appellant’s counsel declined to cross-examine the defence witness. When the court invited the counsel for the defendant he replied that:-

“We have no defence to the counter-claim.”

There was no denial of the averments in the counter-claim. As I have mentioned earlier on pleadings and address by counsel cannot replace or be a substitute for evidence adduced by parties. The learned trial Judge was justified in the circumstance to hold that there was no defence to the counter-claim.

Judgment in the counter-claim is not a default judgment as going by the conduct of the appellant’s counsel – failure to file a reply to the amended statement of defence and counter-claim and to defend the action during the trial of the counter-claim was deliberate. The appellant had the opportunity to hear and determine its case on merits.

Issue No.3 is resolved in favour of the counter claimant. In the final analysis the appeal succeeds in part. The order dismissing the appellant’s claim is hereby revoked. The order of the lower court in the counter claim is affirmed.

I shall make no order as to costs.

In suit no. NSHC/MIN/169/95 the counter-claimant got judgment against the appellant/applicant of a sum of N505,000 as general damages and costs. In the execution of the judgment debt, the appellants banking premises was sold at a public auction on the 27/3/98 for a sum of N2,100,000. The appellant filed a motion praying the court for the following orders:

(1) Leave of court granting extension of time within which the applicant may apply to set aside the sale of applicant’s immovable property – its Banking Branch Office at Umaru Brena Street behind (CBN Minna sold by the counter-claimant

(2) An order of the court deeming this application as being properly served and filed

(3) An order of this court joining Chubuzor A. Annachibe as a party in this application

(4) An order of court setting aside the sale of the applicant’s immovable property the Banking office situated at Umaru Brena Street behind CBN Minna sold in execution of the counter-claimant’s judgment.

(5) An order of the court declaring the sale null and void Mr. Ibrahim Isiaku counsel for the respondent filed an objection against this application praying for the following orders:

“An order striking out the substantive application for lack of jurisdiction”.

The grounds on which he raised the objection are that:

(a) Time within which the application may be brought elapsed

(b) Sale is absolute.

The parties made submissions on the objection and same was adjourned for ruling on 31/1/2001. In the ruling delivered on 12/5/03 the learned trial Judge upheld the respondent’s objection.

Dissatisfied with the ruling the appellant/applicant filed an appeal to this court. The notice of appeal had four grounds of appeal.

Parties filed and exchanged briefs. At the hearing of the appeal by this court on 16/2/06, the appellant adopted and relied on the brief filed on 16/1/04 and the respondent on the brief deemed filed on 6/4/05.

In the appellant’s brief three issues were distilled for determination from the four grounds of appeal as follows:

(1) Whether the proceedings and consequent ruling of the trial court are not a nullity by the fact that the learned trial Judge took the proceedings and the ruling in chambers

(2) Whether the Hon. court was right to have delivered a ruling in a matter when the appellant had withdrawn the matter

(3) Whether considering the fundamental irregularities in the sale of the appellant’s banking premises, the Hon trial court was right to decline jurisdiction to set same aside on the strength of sections 46 and 47 of the Sheriff and Civil Processes Law Cap 123 of the revised Laws of Niger State 1989.

The respondent identified three issues for determination as follows:

(1) Whether the proceedings in this case were conducted by the trial court in chambers

(2) Whether the filing of the process titled “notice of withdrawal of the motion filed on 17/2/2000 without more ended the proceedings before the trial court

(3) Whether the trial court was right when it declined jurisdiction to entertain the application to set aside the sale.

I do not see any apparent difference in the issues formulated by the parties in this appeal – I shall be guided by the three issues in the appellant’s brief in this appeal.

Issue No 1

Whether the proceedings and consequent ruling of the trial court are not a nullity by the fact that the learned trial Judge took the proceedings and delivered the ruling in chambers.

The appellant submitted that the hearing of the respondent’s preliminary objection by the Hon. trial court in chambers as well and the ruling delivered on same in chambers contravened the clear provisions of section 36(3) of the constitution of the Federal Republic of Nigeria 1999, order 40 Rule 1 of the Niger State High Court (Civil Procedure) Rules 1987. Order 36 enumerated applications and proceedings which a judge can entertain in chambers – a preliminary objection raised to jurisdiction is not one of them. It is mandatory that a Judge must sit in open court except as provided in paragraphs (a) and (b) of the proviso to sections 36(3) and (4) of the Constitution. A Judge’s chamber is not an open court consequently the ruling of 12/5/02 having been delivered in chambers was a nullity.

The appellant cited cases to buttress the submission Oviasu v. Oviasu (1973) 11 SC 315 at pg 328; Ogele v. Nuhu (1997) 10 NWLR (Pt. 523) pg 109

The appellant urged the court to set aside the ruling. The respondent replied that there is nothing on record to show that the proceedings in respect of the respondent’s objection as well as the ruling took place in chambers.

The objection was taken on 29/9/2000 – and this is on page 71 of the record, while the ruling is on page 76 of the same record. This court is bound by the certified record transmitted by the trial court which is a public record and there is a presumption that the contents are correct by virtue of section 114(1) of the Evidence Act. The respondent cited the cases:

Nwankwo v. Abazie (2003) 12 NWLR (Pt. 834) pg 381; Ogata v. Fubara (2003) 11 NWLR (Pt.831) pg 231

Issue No.2

Whether the Hon. court was right to have delivered a ruling in a matter when the appellant had withdrawn the matter. The appellant submitted that notice for the discontinuances of the motion to set aside the sale of the property was served on the respondent on 26/11/02. Despite the fact that the substratum of the preliminary objection was rightly removed – the trial court without any notice to the appellant delivered a ruling on 12/5/03.

The respondent submitted by way of reply that the appellant filed a motion on 17/2/2000 to set aside a sale but the respondent challenged the competence of the court to entertain the suit. While awaiting the court’s ruling on the objection the appellant filed a notice informing the court of his intention to withdraw the suit in accordance with Order 29 rule 2(1) of the Niger State High Court Civil Procedure Rules. Since the appellant failed to do so within 14 days statutory period – he must obtain leave of court for the discontinuance of the action. A mere notice of his intention to withdraw as the appellant has done is wrong – as leave was not obtained and granted. The respondent referred to cases: Odje v. Ovien (1992) 7 NWLR (Pt. 253) at 309; Omo v. Amantu (1993) 3 NWLR (Pt. 280) pg 187 at pgs 195 196

Issue No.3

Whether considering the fundamental irregularities in the sale of the appellant’s banking premises – the trial court was right to decline jurisdiction to set same aside on the strength of sections 46 and 47 of Sheriff and Civil Process Law Cap 123 of the Revised Laws of Niger State 1989. The appellant submitted that the lower court wrongly interpreted and applied sections 46 and 47 of Sheriffs and Civil Process Law of Niger State in pari materia with sections 47 and 48 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation 1990. It was not the intention of the Legislature to make sale under section 47 irreversible and non-reviewable by the court when the need arises. That was the reason the operative word in the statute is deemed. This court should hold that the plain interpretation and effect to be given to sections 46 and 47 of the Sheriff And Civil Process Law is that after 21 days the sale is presumed to be an absolute sale. It remains so until the contrary is proved. The contrary is proved when there are fundamental and material irregularities in the conduct of the sale. Apart from the fact that the appellant was not served with any notice of the application to attach its property, the sale itself was irregular as being in contravention of procedural laws and practice. The attachment of the appellant’s property was in contravention of the statutory requirement that movable properties of the debtor must first be attached. The judgment creditor must furnish evidence as to what has been done to find the judgment debtors movable property. There was no such evidence before the court in this case. By the combined effect of sections 46 and 47 of the Sheriff and Civil Process Law of Niger State, section 251 (4) of 1979 Constitution as amended by Decree No 107 of 1993 and Order 1 Rule 5 of Sheriff and Civil Process Act Cap 107 Laws of Federation of Nigeria the sale of the appellant’s property on 27/03/98 was void.

Section 46 and 47 of the Sheriff and Civil Process Law does not oust the jurisdiction of the court to set aside a sale which is invalid. The appellant referred to cases in support of the submission.

UBN Ltd v. Fajebe Foods (1994) 5 NWLR (Pt. 344) pg 325; Nigerite (Nig.) Ltd. v. Dalami (Nig.) Ltd. (1992) 7 NWLR (Pt. 253) pg 288; Kabiru Bayero v. Federal Mortgage Bank (Nig) Ltd & Ors. (1998) 2 NWLR (Pt. 538) pg 509; Mutual Aid Society Ltd v. F.H Ogonade NNLR 18.

The respondent argued that sale of the appellant’s property took place on 27/3/98, while application to set same aside was brought on 17/2/2000 two years after the sale. Under section 47 of Sheriffs and Civil Process Act, an application to set aside the sale of an immovable property can only be entertained if made within 21 days from the date of the sale. When this condition is not met the sale will be deemed absolute. The sale was not challenged within 21 days and it was thereafter deemed absolute. The appellant admitted that it was informed about the pending sale if it failed to pay the judgment sum – vide page 42 of the record.

The appellant had the opportunity to stop the sale or apply to set aside the sale within the 21 days stipulated but it failed to do so.

Where the court lacked jurisdiction because a matter is statute-barred – the court cannot extend time to confer jurisdiction on itself. In effect application to set aside the sale is statute barred. The respondent cited the case of Anueyiagu v. Deputy Sheriff, Kano (1962) 1 All NLR 940 at 945.

Under issue No 1, this court is to determine whether the learned trial Judge conducted proceedings and delivered the ruling subject-matter of this appeal in chambers. The Constitution of the Federal Republic of Nigeria section 36(3) – provides that:

“The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of the section (including the announcement of the decisions of the court or tribunal) shall be held in public”

Order 40 Rules 1 of the Niger State High Court Civil Procedure Rule 1 provides that:

“The decision or judgment in any suit shall be delivered in open court, unless the court otherwise directs for sufficient cause.”

The preliminary objection was heard on 29/11/2000 (vide pages 71-74 of the record) and ruling was delivered on 12/5/03 pages 77-83 of the record, from all indications it did not show that both court proceedings were heard in chambers. I cannot but take judicial notice of the practice that records used for sitting in chambers are different from those used for sittings in the open court and are usually separated. Issue No 1 is resolved in favour of the respondent.

In issue No 2, the appellant contended that between the date of hearing of the preliminary objection and delivery of the ruling on 21/5/03 – the appellant filed notice to discontinue its motion to set aside the sale of the property and the discontinuance was effectively served on the respondent. The motion was no longer inexistence when the court delivered its ruling on 12/5/03. The order of court made in the ruling delivered on 12/5/03 was made in vacuo. The relevant notice of withdrawal is in page 75 of the record. The application brought pursuant to the inherent jurisdiction of court was captioned:

“Notice of withdrawal of the motion filed on 17/2/2000.”

The application reads:

“Take notice that the judgment/debtor applicant in the above motion is desirous of withdrawing the motion filed on 17/2/2000 and has accordingly withdrawn same”

Order 29 Rule 1 of the Niger State High Court Civil Procedure Rules provides that:

“The plaintiff in an action may, without the leave of the court, discontinue the action, or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than 14 days after service of the defence on him or, if there are two or more defendants, of the defence last served, by serving a notice to that effect on the defendants concerned”.

In this instance – the motion of the appellant was filed, on 17/2/2000, and the respondent filed its counter – affidavit on 4/3/2000. The appellant filed a further and better affidavit on 13/7/2000. Notice of withdrawal was filed on 26/4/02 which was filed outside the fourteen days stipulated in order 29 Rule 2(1) of the Niger State High Court (Civil Procedure) Rules. Leave of court becomes necessary for him to withdraw his motion. As leave was not applied for and granted by court in respect of his notice on page 75 of the record, the motion filed on 17/2/2000 has not been withdrawn. The motion filed on 17/2/2000 is still valid and also the ruling in respect of same when it was delivered on 21/5/03. Issue No.2 is resolved in favour of the respondent.

Issue No.3 challenges the jurisdiction of court to set aside the sale of the property of the appellant which occurred on 27/3/98. The application was brought on 17/2/2000 two years after the sale.

The respondent canvassed in the objection to the courts jurisdiction that the action was statute – barred – as the appellant’s failure to bring the application to set aside the sale within 21 days rendered the sale absolute. The court cannot enlarge time to give itself jurisdiction where an action is statute-barred. Sections 46 and 47 of the Sheriffs and Civil Process Law of Niger State are in pari materia with sections 47 and 48 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation 1990 which provide as follows:

Section 46 – “at anytime within twenty one days from the date of the sale of any immovable property, application may be made to the court to set aside the sale on the ground of any material irregularity in the conduct of sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the court that he has sustained substantial injury by reason of such irregularity”

Section 47 – “If no such application as is mentioned in section 46 shall be made the sale shall be deemed absolute. If such application be made and the objection disallowed the court shall make an order confirming the sale and in the like manner. If the objection be allowed the court shall make an order setting aside the sale for irregularity”

It is apparent from the provisions of the Sheriffs and Civil Process Act that:

(a) An applicant must bring the application within 21 days from the date of the sale

(b) The application must be based on material irregularities in the conduct of the sale

(c) The applicant must prove to the satisfaction of the court that he has sustained substantial injury by reason of such irregularities.

Under section 48 of the law non-compliance with the foregoing makes the sale absolute. The appellant brought the application two years after the sale. He now sought for an extension of time to bring an application to set aside the sale.

The poser now is whether it is possible to bring an application to extend the time provided by statute to do an act under the inherent jurisdiction of court? In this case the Sheriffs and Civil Process Law of Niger State makes provision for twenty-one days within which to apply to set aside a sale of property on grounds of irregularity in the conduct of such sale without a room for extension of such period.

There is no provision of the statute allowing for extension of time to set aside a sale which has become absolute.

Against this background the records of proceedings reveal that:

(1) There is a certificate of purchase showing that the property was sold by public auction (pg 44 of the record)

(2) That the appellant was informed about the pending sale – (pg 42 of the record)

(3) That the appellant knew that judgment had been entered against it and execution was about to be levied against the property

(4) Appellant was invited to collect the balance of the sum realised on the sale after deduction of the judgment sum (pg 50 of the record).

In effect the appellant had adequate opportunity to act timeously to stop the sale or set aside the sale but failed to do so.

Where a statute makes no provision for extension of time where limitation of time is imposed – the courts cannot extend time to do so.

I have examined the grounds relied upon by the appellant to conclude that the sale of the property was full of fundamental and material irregularities – I cannot but conclude that these are matters affecting the conduct of the sale of the appellants property. They come within the provisions of sections 46 and 47 of the Sheriffs and Civil Process Law and the 21 days limitation period.

Saleh v. Monguno (2003) 1 NWLR (Pt. 801) pg 221

It is trite that where a statute provides for the commencement of an action within a given time or period no proceedings can be commenced after the period prescribed by the statute has elapsed. Thus any action instituted after the period is statute-barred and the right of the plaintiff to commence the action is said to be extinguished by operation of law. Egbe v. Adefarasin (No.1) (1985) 1 NWLR (Pt.3) pg 549; Obiefuna v. Okoye (1961) 1 SCNLR pg 144, (1961)ANLR 357; Adeosun v. Jibesin (2001) 11 NWLR (Pt.724) pg 290.

Since the Sheriffs and Civil Process Act does not contain provision for extension of time – the application for such extension for the purpose of setting aside a sale which is absolute is incompetent – and I hold that the learned trial Judge was right to have declined jurisdiction.

Issue No.3 is resolved in favour of the respondent. In sum this appeal therefore lacks merit and it is accordingly dismissed. The decision of the lower court is affirmed. There shall be no order as to costs.

In the final analysis in the consolidated appeals the order of the lower court dismissing the claim of the appellant already struck out, is revoked. While the two appeals filed lack merit and they are both consequently dismissed with no order as to costs.

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Other Citations: (2006)LCN/1968(CA)