Alhaji Jimoh Omotosho V. Bank of the North Ltd. & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
OGUNWUMIJU, J.C.A.
This is an appeal against the judgment or the High Court of Justice Kwara State delivered by Hon. Justice A. O. Belgore on 5th April 2001.
The facts which gave rise to the appeal are as follows:
The appellant maintained a loan account with the 1st respondent at its Offa Branch. The parties executed a deed of legal mortgage. The security for the loan is the appellant’s property lying and being at off Olofa Way Near New Yidi praying Ground, Offa. In 1981 the appellant stopped operating the account. In February 1995, the appellant saw an auction notice pasted on his house by the 2nd respondent on the instruction of the 1st respondent.
This prompted the plaintiff/appellant to sue the respondents jointly and severally in the High Court sitting at Offa. Pleadings were duly filed and exchanged and the case proceeded to trial. Near the end of the proceedings the plaintiff amended his pleadings.
By the amended writ and statement of claim filed on 8/3/2001, the plaintiff/appellant claimed the following reliefs:
“1. A declaration that the plaintiff is not owing or indebted to the 1st defendant in any way whatsoever and as such no sum is repayable in law and in equity.
- An order of perpetual injunction restraining the ‘defendants and/or their agents from selling or auctioning the plaintiff’s property lying and being at off Olofa Way, Near Yidi, praying ground, Offa.”
During the trial the plaintiff now appellant testified for himself and closed his case whilst the defendants now respondents called one witness to testify on their behalf. He swore that he last operated the loan account No. 40043 with the 1st defendant sometime in 1981. Since then he neither made a lodgment nor a withdrawal from the account. He heard that he was sued in 1991 by the 1st defendant but before he knew about it, the case was struck out. In February 1995 he saw auction notices pasted on his house and then came to court. An officer of the 1st defendant gave evidence to support the defence. He swore that the plaintiff was indebted to the 1st defendant to the tune of N207,550.82k as at February 1995. He also tendered exhibit D1 statement of account covering 19-11-83 to 17-2-95 and exhibit D2 the deed of legal mortgage executed by the plaintiff and the 1st defendant. At the close of the case of both parties, the court ordered written addresses which were filed and subsequently adopted, The trial judge dismissed the plaintiffs claims, hence this appeal.
The appellant’s brief was dated 4th November 2004 and deemed filed on 24/11/04. The respondents’ brief was dated 20/9/2005 and deemed filed on 25/1/06.
The appellant’s counsel formulated three issues for determination in this appeal to which the respondents’ counsel agreed. They are:
“1. Whether the issue of limitation law raised before the trial Judge was rightly rejected and discountenanced.
- Whether the totality of the evidence adduced by the plaintiff/appellant before the trial court was not sufficient to discharge the burden of proving that he was not owing the 1st defendant/respondent.
- Whether a legally inadmissible evidence which is wrongfully admitted by the trial court can be used to form the basis of a just judgment.
On issue one, learned counsel for the appellant argued that the learned trial Judge should have accepted the plea of limitation advanced by the appellant’s counsel at the lower court.
He argued that the limitation law is a special defence which ordinarily must be pleaded. That is the general rule. He argued that there is an exception to the rule, where the issue raised i.e. limitation goes to the jurisdiction of the court. The issue of jurisdiction can be raised at any point during the trial or even for the first time on appeal. He cited Eguamwense v. Amaghizenwen (1993) 9 NWLR (Pt. 315) Pg. 1 at Pg. 12. Omokhafe v. Esekhomo (1993) 8 NWLR (Pt. 309) Pg.58 at Pg. 63. Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) Pg. 266 at 269.
He further argued that where a trial court has no jurisdiction, the trial is a nullity.
The basis of appellant’s counsel’s argument is that according to Section 15 of the limitation law of Kwara State, no action can be brought to recover a debt after the expiration of 10 years from the date on which the right to recover accrued. He had argued during address at the lower court that the loan was given in March 1979 repayable within 12 months. The cause of action then accrued from April 1980. He argued that the action to auction the property ought to have been taken when the cause of action was protectable under the law i.e. between April 1980 and April 1990 not after 15 years when the debt had become extinguishable. He cited FBN v. Akporido (1996) 8 NWLR (Pt. 469) Pg.755.
On this issue, learned respondent’s counsel had argued that the learned trial Judge was right in refusing to allow the appellant to rely on the issue of limitation law which was not pleaded. He cited Order 25 Rule 6(1) of the Kwara State High Court Rules 1989 which provides that the statute of limitation must be pleaded.
He also cited Mobil producing v. LASEPA (2002) 18 NWLR (Pt. 798) page 1 at page 46.
I have carefully considered the submissions of both learned counsel on this issue. The learned trial Judge had rejected the question of limitation being applicable to this case because it was not pleaded by the plaintiff but was raised for the first lime during address. The learned trial judge stated in his judgment:
“In the High Court cases are fought on the pleadings and the law is that parties are bound by their pleading … In this case, the plaintiff has not pleaded any limitation. The issue was raised for the list time during counsel’s address.
This is contrary to the adversely system of administration of justice which we operate. This system has no room for hide and seek ……….”
Line 29 page 96 of the record of proceedings.
It is my humble view that the nature and import of a complaint that an action is statute barred amounts to a complaint against the competency of the action. See Hon. Emmanuel Oseloka Araka v. Ambrose Nwankwo Ejeagwu (2000) 15 NWLR (Pt. 692) page 648.
The effect of statute of limitation is that the right to enforce the action is lost. See John Eboigbe v. N.N.P.C. (994) N.W.L.R. Pt. 342 Page 649.
Generally, failure to determine the issue of limitation when raised is a grievous error. See Chief Festus Yusuf v. Co-operative Bank (1994) 7 NWLR (Pt. 359) Pg. 676, Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) Page 1.
The question to be answered here is whether or not a party must plead the statute of limitation before it can rely on it.
Order 24 Rule 6(1) of the High Court Civil Procedure Rules Cap. 68 Laws of Kwara State provides categorically as follows:
“6(1) A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality – which, if not specifically pleaded might take the other party by surprise.”
(Italics mine.)
The decision law is that a defence founded on limitation call be raised in limine without evidence in support provided the dates of accrual of cause of action and filing of writ are disclosed in the writ of summons and statement of claim, See PN. Udoh Trading Co Ltd. v. Sunday Abere (2001) 11 NWLR (Pt. 723) Pg. 114. Thus, in relation to proper pleading of the defence of limitation it is not necessary to plead more than the facts necessary to enable the court to hold that the action is statute barred.
On the time and con of when the issue of limitation was raised by appellant’s counsel, the fact that an action is statute barred is a matter of mixed fact and law. Address of counsel cannot be used to raise issues which do not emerge from the pleadings and evidence. See Odubeko v. Fowler (1993) 7 NWLR (Pt.308) Pg. 637. In fact, it is improper to raise issues of fact in counsel’s final address. See Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) Pg. 352.
Niki Tobi, J.C.A. as he then was in Ainu v. Jinadu (1992) 4 NWLR (Pt. 233) Pg. 91 at Pg.110 said:
“In order to determine whether an action is statute barred or not, the court must be involved in the exercise of calculation of years, months, and days to the minutest detail. It is really an arithmetic exercise, which needs a most accurate answer.”
From the above, it is clear that a trial judge can only make a finding on whether an action is statute barred after pleadings are filed, if the issue is raised in limine or after evidence based, in the pleadings have been led. See Salami v. Savannah Bank (1990) 2 NWLR (Pt.13) Pg. 106.
Learned appellant’s counsel also submitted that the issue of limitation is a matter of law which affects the jurisdiction of the court and which can be raised at any time and even for the first time on appeal. It is my humble view that an issue of jurisdiction which can be raised at any time even on appeal would be strictly a matter of law. An appellant will not ordinarily be allowed to raise on appeal a question which was not raised, tried or considered by the trial court, but where the question involves substantial points of law and it is plain that no further evidence would have been adduced which would effect the decision, the court will allow it to prevent miscarriage of justice.
“Where limitation of action is related to torts and contract (as in this case) it is an accepted principle that the statute of limitation is a defence which can be waived. To that extent it can not strictly be said that an action taken outside the limitation period is incompetent for lack of jurisdiction of the court. However, after the plea of limitation has been raised and established, the court lacks jurisdiction to proceed further to determine other issues of merit in the case.” (Italics mine)
See Araka v. Ejeagwu Supra at Pg. 718, per Ayoola J.S.C. concurring with the leading judgment.
Thus, the decision law is that the defence of limitation would affect the competence and jurisdiction of the court only when the issue is raised by the defendant as a shield against litigation at the appropriate time. The answer to issue one is that a party must plead the statute of limitation in order to rely on it.
Moreover, I do not think the plaintiff/appellant in this case can plead limitation in the circumstances. The very nature of the plea does not make it a weapon of attack. All the authorities and the statutes refer to the “defence of limitation, ”
In Jones v. Bellgrove Properties Ltd (1949) 2 KB 700 Lord Goddard held at page 704 that:
”The statute of limitation does not confer any right on the defendant. Its only imposes a time limit on the plaintiff.”
In F.C. Udoh v. O.H.M.B. (1993) 7 NWLR (Pt.304) page 139 at page 148.
Kabiri- Whyte J.S.C. adopted the definition of “action” as contained in the High Court law of Anambra State. That definition is in pari materia with the definition of the word “action” in section 2 of the High Court Law Cap 67 Laws of Kwara State. In that law, “action” means “a civil proceedings commenced by writ or in such other manner as may be prescribed by rules of court, but does not include a criminal proceedings.”
The word “action” is defined in the Limitation Law Cap 89 Laws of Kwara State 1994. Section 3 which is the Interpretation Section defines “action” as follows:
“action” includes any proceedings other than a criminal proceeding in a court established by law,”
Obviously the “action” envisaged by the law is the institution of legal proceedings in the law court by one party against another. Thus the word action cannot be interpreted to include private actions or arrangements by the bank and the auctioneer against the plaintiff to sell his property.
It is clear that the question of an action being statute barred cannot be deployed as a sword by the plaintiff but can only be raised as a shield by a defendant. There was no counter claim to make the plaintiff technically a ‘defendant’ for the purpose of raising the defence of limitation, It is an aberration for a plaintiff to raise as a “defence” to an extra-judicial action of a defendant the issue that the defendant’s “action” is statute barred, In my humble opinion the whole basis of learned appellant counsel’s argument on this issue is misconceived.
I am of the humble but firm view and I agree in toto with the reasons of the learned trial judge that a party wishing to raise the defence of limitation must specifically plead it. The first issue is resolved in favour of the respondent.
Issue two in this appeal is whether the totality of the evidence adduced by the plaintiff/appellant before the trial court was not sufficient to discharge the burden of proving that he was not owing the 1st defendant/respondent. The appellant’s contention on this point is that the appellant having sworn that he owed the 1st respondent no money, the burden of proof not being static then shifted on the 1st respondent who had asserted that the appellant was owing the bank money. He cited Adegoke v. Adibi (1992) 3 NWLR (Pt.242) Pg. 410 at 413 and C.O.P v. Oguntayo (1993) 6 NWLR (Pt. 299) Pg. 259. He argued that it was the duty of the Bank to produce the requisite bank statement to prove the debt. The respondent bank being in custody of the Account Book, Entry Book and Ledger Card, the burden is on it to produce the Statement of Account at the time the appellant stopped operating the account in 1981 and thereafter. He contended that 1st respondent’s failure to tender the statement of account between 1981 and 1994 is fatal to its defence.
Learned respondent’s counsel’s argument on this issue is that the burden in this kind of case never shifts. The burden of proving that he was no longer indebted remained firmly fixed on the appellant. The appellant is the one claiming that he had repaid a debt. He cited Macauley v. NAL Merchant Bank Ltd. (1990) 2 NSCC 433, (1990) 4 NWLR (Pt.144) 283. He submitted that the burden of proof in this case is static and cited Ezemba v. Ibeneme (2004) 7 SCNJ 136 at 152; (2004) 14 NWLR (Pt.894) 617. He argued that where the plaintiffs evidence is found to be insufficient to prove his case, the trial judge must dismiss the case. He cited Duru v. Nwosu (1989) 4 NWLR (Pt. 113) page 24.
As far as this issue is concerned, the relevant part of the evidence of the plaintiff/appellant before the trial court is as follows:
“The last time I operated the account was in 1981. I have made no lodgment into or withdrawal from the amount ever since that lime. I was not indebted to the 1st defendant and I stopped operating the account when I stopped the business of vehicle dealership”.
See line 32 Page 74 of the record of proceedings.
The law is that the burden of proof rests on the person who asserts a fact. See Alh. Karim Laguro & Anor v. Honsu Taku (1992) 2 SCNJ 201. It is fixed at the beginning by the pleadings and rests on the party asserting an affirmative. See Chief Gordon Joe Young Jack v. Chief Rit Whyte (2001) 6 NWLR (Pt. 709) Page 266.
The burden of proof shifts when evidence given by one party gives rise to a presumption favorable to it and unless rebutted satisfies the court that the fact sought to be proved is established. Elema v. Princess Akenzua (2000) 13 NWLR. (Pt.683) Page 92; Higrade Maritime Services v. 1st Bank (1991) 1 NWLR (Pt. 167) Page 290; David Ituama v. Friday Akpe-Ime (2000) 7 S.C.N.J. 40, (2002) 12 NWLR (Pt.680) 156.
The legal burden is always fixed by the pleadings. A party is obliged to plead the facts it wants to prove in evidence. In that case, the burden does not shift. However, the evidential burden can shift from one party to another as the scale of the evidence preponderates. See Edozie J.S.C. in Ezemba v. Ibeneme supra.
The position of appellant’s counsel on this issue is based substantially on the purported weakness in the respondent’s case i.e. failure to tender statement of accounts between 1981 to 1994, since these statement were within their control.
However, a plaintiff cannot rely on the weakness of a defendant’s case but can only take advantage of the defendant’s evidence which supports his own case. See Okeke v. Anthony Agbodike (1999) 12 SCNJ 343; (1999) 14 NWLR (Pt.638) 215. In the light of the legal position stated above, let us examine the finding of the trial court in relation to the evidence given in support of the declaratory relief sought by the appellant at the trial.
The trial court said:
“I think the plaintiff is in grave error in this regard. The reliance being placed on Weide & Co. (Nig.) Ltd. v. Weide & Co. Hamburg (1992) 6 NWLR (Pt. 249) Pgs. 627, 640 is misplaced. This authority is related to where the creditor sues. The 1st defendant has not sued in this case and has not counter-claimed.
The burden has not yet shifted from the plaintiff until he has established by evidence that he is not indebted to the 1st defendant. What the plaintiff has done in this case is to place reliance on his pleadings without more. No attempt was made to establish the facts pleaded. In F.D.C.A. V. Alhaji Musa Naibi (1990) 5 SCNJ 186, 195; (1990) 3 NWLR (Pt.138) 270 and Muraina Akanmu & Anor v. Fasasi Adigun & Ors. (1993) 7 NWLR (Pt. 304) 218, 231. It was held that pleadings cannot constitute evidence and that the law is that an averment in pleadings is not tantamount to evidence and can never be construed as such.”
See line 18 page 98 of the Record of Proceedings.
I agree with the reasoning of the learned trial Judge and could not have put it better myself. A declaratory relief can only be granted as a follow up in respect of a finding of fact made by the court. Where the court cannot find sufficient evidence to make a finding of fact, it cannot exercise its discretion to grant it. See Alh. Akibu v. Oduntan (2000) 9 SCNJ 189; (2000) 13 NWLR (Pt. 685) 446. To my mind the vague evidence led by the appellant before the trial court did not fufill the conditions required by law before a grant of declaratory relief can be made. The claimant needs to shows a legal right or interest existing or in the future to succeed. See International iles v. Dr. Ademola Aderemi (1999) 8 NWLR (Pt. 614) page 268. Suffice it to say that the appellant failed to make out even a prima facia case to compel the court to consider the evidence of the defendant. See Duru v. Nwosu supra at page 52 – 53. This issue is also resolved in favour of the respondent.
Issue three is whether legally inadmissible evidence which is wrongfully admitted by the trial court, can be used to form the basis of a judgment. Learned appellant’s counsel submitted that the admission of exhibit D2 in evidence despite his objection during the trial was wrong and contrary to section 15 of the Lands Registration Law Cap 83 Laws of Kwara State.
He submitted that exhibit D2 it is an instrument affecting land because the plaintiff/appellant changed his title to the landed property in favour of the 1st defendant/respondent therein and thus its lack of stamp duty and registration made it inadmissible in evidence.
Learned counsel for the respondent in reply submitted that even if the trial judge wrongfully admitted exhibit D2, the trial judge did not rely on it to arrive at his decision. The trial judge only held that the plaintiff did not prove his case, the court did not consider the evidence adduced by the defence. He urged the court to invoke section 227 (1) of the Evidence Act to hold that admission of inadmissible evidence per se cannot ground a reversal of the judgment of the trial court in as much as the evidence so admitted cannot reasonably be held to have effected the decision of the trial court. He argued that the decision of the trial court did not turn on exhibit D2.
On this issue, the trial court on 21/1/99 delivered a bench ruling to admit exhibit D2. The court ruled:
“I have carefully listened to counsel on both sides and I have gone through the authority cited, I am satisfied that this document is not being tendered as evidence of ownership of a land but rather it is being tendered as evidence of an interest in the property.
This make it admissible by the authority of the Supreme court in Alaya v. Akinduro Supra.
In the premises, this objection fails and it is overruled.
The deed of mortgage is hereby admitted in evidence and marked as exhibit D2.”
Line 1 Page 82 or the record of proceedings.
The judgment or the trial court made only an oblique reference to exhibit D2 while detailing the submission of learned counsel on both sides. The relevant portion of the judgment is as follows:
“As for exhibit D2, the deed of legal mortgage, it is submitted for the plaintiff that the document is fatally affected, since it was not registered in accordance with section 16 of the Land Instrument Registration Law Kwara State and by virtue of Oredola Okeya v. A-G Kwara State & Anor. (1992) & 7 NWLR (Pt. 254) 412 since the copy tendered was not certified: since it was not duty stamped; and since it was not executed before a Magistrate, the plaintiff being an illiterate.”
Line 9 page 95 of the record of proceedings.
There is no dispute on the fact that exhibit D2 was neither registered nor stamped. However, from the judgment it is clear that apart from a review of the arguments of learned counsel, no further reference was made by the learned trial judge to exhibit D2. It is my humble view that the lower court’s judgment cannot be faulted on the basis of the so called wrongful admission of exhibit D2. The learned trial judge did not utilize exhibit D2 to form the basis of any finding of fact or conclusion of law.
Be that as it may, it is relevant to point out that a deed of legal mortgage is a land instrument which ought to be stamped and registered to make it admissible in evidence as proof of legal title. See Usman v. Kareem (1995) 2 NWLR (Pt.379) Page 537. However, while an unregistered land instrument is inadmissible to prove title it is admissible to prove purchase and can be utilized as a purchase receipt. Thus it is admissible to prove equitable interest only. See Thomas Awaogbo v. Chukwu Eze (1995) 1 NWLR (Pt. 372) Pg. 393.
To my mind the reasons for the trial court’s admission of exhibit D2 is sound in law. The question of who has legal interest in the mortgaged property was not in dispute in this case and the trial judge rightly gave no opinion on the exhibit after admitting it. It would have been different if the appellant had sought in the lower court a declaration that the 1st respondent had no legal or equitable interest in the property mortgaged in exhibit D2. Then, the convoluted argument of the appellant’s counsel that the admission of exhibit D2 adversely affected the rights of the appellant would be grounded. In the circumstances, the argument cannot stand since issues were not joined at the lower court on the rights of the parties in relation to exhibit D2. This issue is also resolved in favour of the respondents.
For reasons given above, this appeal lacks merit in its entirety and it is hereby dismissed.
Costs N10.000.00 for the Respondents against the Appellant.
Appeal Dismissed.
Other Citations: (2006)LCN/1918(CA)
