First Bank Of Nigeria Plc & Anor V. Archibong Udo Okon (2009)
LawGlobal-Hub Lead Judgment Report
MOJEED ADEKUNLE OWOADE, J.C.A.
This is an appeal against the Judgment of Hon. Justice F. U. Ilok of Calabar Judicial Division of the Cross River State High Court delivered on 3rd March, 2009.
The Respondent was the Plaintiff/Defendant to counter-claim while the 1st Appellant was the Defendant/Counter claimant at the trial High Court. The 2nd Appellant was the Auctioneer engaged by the 1st Appellant to sell the mortgaged property.
It would appear from the incomplete records collated for this appeal that the suit was commenced by the Respondent as Plaintiff on 20/10/1991 while the Defendants filed a Statement of Defence and Counter claim on 22-2-1992. The visible processes contained in the record of proceedings and on which the trial was based are Amended Writ of Summons and Amended Statement of Claim filed on 8/12/2005.
Amended Statement of Defence and Counter claim consequent on the order of Court of 25/2/2005 and filed on 4/3/2005 and Amended Reply to Statement of Defence and Defence to Counter claim dated 2/3/2005 and filed on 3/3/2005.
By his Amended Statement of claim, the Plaintiff (now Respondent) claimed jointly and severally against the Defendants as follows:-
1. A declaration that the Plaintiff is not indebted to the 1st defendant to the tune of N275, 101.11 claimed by the defendants to be Plaintiff’s indebtedness to 1st defendant as at October, 1991 as per 1st defendant’s auctioneer’s letter issued by Edem E. Ironvar, Esq. (the 2nd defendant in this suit of Menkes Bright International, 95 Ndidem Iso Road, Calabar, dated on 28th October, 1991.
2. An order for account for defendants to show how they have arrived at such sum of money as N275, 101.11.
3. An injunction restraining the defendants, their servants, workmen or privies threatening to sell or sell or advertise to sell, auction, alienate, interfere or deal in any other way inconsistent with Plaintiff’s right of ownership of the property situate at No. 34 Yellow Duke Street, Calabar, Cross River State Nigeria.
The 1st Defendant in turn in paragraph 21 of their Amended Statement of Defence and Counter-claim claimed as follows:
(i) 1st Defendant claims the sum of N348, 024.65 as at 4/11/92 with 42% per annum calculated at monthly rests until the entire debt and interests are liquidated, which debt stood at N3, 929,577.07 as at 26/9/2004.
At the trial, the Plaintiff (now Respondent) testified for himself and called no other witness while two witnesses testified for the Defendants (Appellants). The learned trial Judge in a considered judgment delivered on 3/3/2006 dismissed the claims of the Plaintiff as well as the Counter-claims of the 1st Defendant.
In particular at pages 117-118 of the record, the learned trial Judge observed in respect of the Defendant counter-claims as follows:
” …. The only evidence from the 1st defendant showing Plaintiff’s indebtedness is Exhibit ‘M’ to ‘M7’ and none of this clearly show calculation of interest or the sum owed by the Plaintiff from the date the additional facility was granted, nor does Exhibit ‘M – M7′ show the amount owed up to 26-9-2004 as claimed by 1st defendant. Since Exhibit M to M7 never reflected the sum of N348, 024.65 claimed as at 4/11/92, nor did it reflect account of the Plaintiff from 1993 to 1998, a period of six years, this Court cannot grant the first relief of the 1st Defendant.
DW1 admitted that the rate of interest in Exhibit M-M7 is 42% but DW2 said 42%was never used to calculate interest; he did not go further to show what percentage was used, while DW1 in another breath said interest rate vary and is fixed by the Central Bank of Nigeria. Even the amount in Exhibit N is not reflected in Exhibits M-M7. In the face of this inconsistency in the, evidence of DW1 and DW2 and confusion in the accounts of the “Plaintiff kept by the 1st Defendant, it cannot be rightly said that the 1st defendant has proved the exact amount of the indebtedness of the plaintiff. From the foregoing, 1st defendant’s first relief therefore fails.”
Dissatisfied with the dismissal of the Counter-claim, the 1st Defendant Counter Claimant/Appellant filed a Notice of Appeal containing four (4) grounds of appeal before this Court on 11/4/2006.
Appellant’s brief of argument dated 3/7/07 was filed on 6/7/07. Respondent’s brief of argument dated 16/5/08 was deemed filed on 26/11/08. Appellants’ Reply brief dated 4/12/08 was filed on 23/12/08. The Appellant formulated only one issue for determination; that is whether the Appellants proved the indebtedness of the Respondent entitling them to their Counter-claim.
The Respondent also formulated one issue for determination to wit:
Whether the Appellants were entitled to judgment in a Counter-claim which evidence was discredited and same not proved.
Learned Counsel for the Appellant in arguing the sole issue for determination adopted the statement of the law by the learned trial Judge at page 116 of the record that
“In respect of the counter-claim, it is settled that a counter-claim, though tried in the same action with the substantive claim for purpose of convenience is a distinct action”.
Counsel submitted from the above, that while making his claim the Respondent was also defending the counter-claim and while the Appellants were defending the main claim they were also establishing their counter-claim. And that they are distinct actions does not permit the trial Court to make two distinct and contradictory findings from the same set of facts. Appellants Counsel quoted extensively from the judgment of the learned trial Judge at pages 115- 116 of the record.
First, that-
“In his first relief, he claimed that he is not indebted to the 1st defendant, therefore the issue of how the amount was calculated does not arise. Exhibits M-M7 show that the final sum was arrived at after calculating interest on the sum owed. When plaintiff acknowledged the sum of N152, 415.16 in Exhibit F, he acknowledged that interest was charged on the N100,000 facility which he took. From the evidence on record, even if the amount in Exhibit N is added to the N20,000 from his savings account and the value of the share certificates sold it cannot liquidate plaintiff’s indebtedness to the 1st defendant. I therefore hold that the plaintiff has failed to place sufficient materials before this Court to entitled (sic) entitle him to the Declaration sought. This being so, an injunction cannot lie to restrain the 1st defendant from exercising his right of sale under Exhibit Land L1. Plaintiff in my view is well aware of his indebtedness to the 1st defendant but his only reason for instituting this action could be found in his evidence when he said “… I came to Court for the Court to plead with 1st Defendant not to sell my property … this is why I am pleading with the Court to beg the 1st defendant for me, that they should not sell my property since I may not be able to build another one.” This evidence of the plaintiff clearly shows that this suit was brought to buy time for the plaintiff, as even the plaintiff did not believe in its merit at the time institution (sic)”.
Second thereafter, the trial Court said:
“Exhibits m-M7 tendered by 1st defendant show that the sum of N384, 024.85 claimed by 1st defendant is as at 26.10.92 and not 4.11.92 … Accordingly, the statement of account ought to contain details of percentage of interest with which the calculation was done. Again, the 1st defendant ought to have tendered statement of account from the date of the grant of the overdraft facility and not half way into account as done by the 1st defendant in Exhibit M.”
Appellants’ Counsel said that this latter summing influenced the Court to dismiss the counter-claim. Yet, said Appellants’ Counsel, by Section 75 of the Evidence Act, what is admitted need not be proved. The Court itself, said Counsel agreed that the Respondent had acknowledged the debt of N153,415.16 which included interest charged on the borrowing of N100,000.00. At this stage, if the Court disbelieved further sums counter-claimed for, it should have given judgment for the lesser sum proved/admitted. He relied on the case of OLOWU V. BUILDING STOCK LTD. (2004)4 NWLR (PT. 864) 445, that a Court may award less and not more than what the parties have claimed. Instead, said Appellant’s Counsel, what the lower Court did was to hold that:
“The only evidence from the 1st defendant showing plaintiff’s indebtedness is Exhibit M-M7 and none of this clearly show calculation of interest or the sum owed by the plaintiff from the date the additional facility was granted, nor does Exhibit M-M7 show the amount owed up to 26.9.2004 as claimed by the 1st defendant since Exhibits M-M7 never reflected the sum of N348,024.25 claimed as at 4.11.92, nor did it reflect account of the plaintiff from 1993 to 1998, a period of six years, this Court cannot grant the first relief of the 1st defendant.”
Learned Counsel for the Appellant pointed out what he termed flaws in the above summary as follows:-
(1) The admission of the debt of N153, 415.16 by the respondent was admission of all the facilities granted which amounted to N100, 000. The Court itself earlier agreed with this.
(ii) That the sum of N348, 024.64 is not reflected on the account for the day 4.11.92 but was reflected on 20.10.92, is finding fault where there is hone. The counter-claim was calculated at monthly rests. What this means is that the debt would remain at N348, 024.85 as at 26.10.92 till the 26.11.92, when the next monthly interest accrues and is added. Therefore as at 4.11.92, the debt stood and remained unchanged from what it was as at 26/10/92.
(iii) Not reflecting account from 1993 to 1998, which the Court held against the appellant is forgetting that this suit commenced in 1991. The appellants had proved the indebtedness from the Respondent’s admission and from the account up to 26/10/92 or 4/11/92, as at their counter-claim, the Court should have given judgment for this sum, if unconvinced about the additional calculation.
Appellant’s Counsel furthered, that there can be no doubt that the Respondent was quite aware of his indebtedness arid the interest thereon. The crucial point is that he never complained. Also, that the Appellants having tendered Exhibits M-M7 prepared from the records of the bank as required by law were entitled to Judgment. Exhibits, M-M7, said Appellant’s Counsel were not in any way discredited. The trial Court having agreed that Exhibit L and L1 show the borrowing of N100,000 and seeing no evidence of complete repayment should not have interfered with the Appellant’s attempt to realize the mortgage property.
Learned Counsel for the Appellant referred to the provision of Section 97(i) (h) and 97(2) (e) of the Evidence Act and the cases of OBIJIAKU v. NDIC (2002) 8 NWLR (PT.774) 201 and NEW NIGERIA BANK v. LEYEMAH (1986) 2 NWLR (PT.25) 785 and submitted that the trial Court complaining that Exhibits M-M7 (certified copies of accounts) did not show the interest rates, with respect misunderstood or misconstrued Section 97(i)(h) and 97(2)(e) of the Evidence Act. For all the law requires is for the Appellants to produce such certified copies from the 1st appellant’s records. And that Exhibits M-M7 after being accepted by the Court in defence of the main claim was wrongly disregarded for the counter-claim.
In response, learned Counsel for the Respondent pointed out that, the learned trial Judge had no option but to dismiss the Appellant’s/Counter claim, for it was left for the Appellants to prove their counter-claim in the sum of N384, 024.65 as at 4.11.92 or N3, 929, 577.07 as at 4.11.2004 as the alleged indebtedness of the Respondent, which, they failed to do.
Respondent’s Counsel said, the trial Court was right to say that the Appellants should have tendered the statement of account from the date of the grant of the overdraft and not half way into the account as was done by the 1st Defendant/Appellant in Exhibit ‘M’. The reliance on Section 75 of the Evidence Act on the fact that Respondent admitted the sum of N153, 4115.16, said Respondent’s Counsel, is misconceived. This, according to Respondent’s Counsel is because the acknowledgment by Plaintiff’s/Respondent of the sum of N153, 415.16 was through Exhibit ‘F’ dated 11.4.90 but the Respondent said the Appellants have not given him statement of account since 1991. Indeed, said Respondent’s Counsel, the Appellants did not reflect the statement of account of the Respondent for 6(six) years that is from 1993 to 1998 in Exhibits M-M7 which could have shown the true position of the account.
Respondent’s Counsel said that the case of OLOWU v. BUILDING STOCK LTD (supra) cited by the Appellant is not relevant to the facts of this case and that it is wrong for the Appellants to say that the trial Court could have given judgment for the Appellants in a lesser amount of N153, 415.16, when that amount was excluded by Appellants in its Exhibit ‘M-M7’.
Learned Counsel for the Respondent refered to the evidence of Dw1 at page 66 of the record that:
“The date 4/11 /92 is not reflected in Exhibit ‘M’ and N348, 424.85 is not reflected in Exhibit ‘M’ for that date. We had at no time charged interest at the rate of 42% per annum as stated in the statement of defence. 42% is not reflected in Exhibit ‘F’ the mortgage debt. The rate of interest of 42% per annum in the counter-claim was not communicated to the plaintiff. I cannot remember the rate of interest from CBN in 1992.”
Dw2, said Counsel also stated that “At no time did we charge 42%. Interest rate regime as at 1992 was about 28%.”
Respondent’s Counsel wondered what the Appellants wanted the trial Court to do, in the race of contradictions between the pleadings and evidence of Appellant’s witnesses as far as the rate of interest is concerned.
Counsel submitted that the trial Court properly evaluated the evidence adduced in proof of the counter claim especially as it relates to the rate of interest and the Court was right to dismiss the counter claim.
Learned Counsel for the Respondent submitted that the only statement of account seen by Respondent, and after it was tendered in Court is the chequered Exhibit M to M7 prepared in June 2004. And that if the statement of account were usually sent to the Respondent he could have queried them as mere production of the statement of account does not put liability on the Respondent. He relied on INTEGRATED DIAMENSIONAL SYSTEMS LTD V. A.I.B. LTD (2002) FWLR (PT.98) 953. And again, as the Appellants had failed to be communicating the variations in the rates of interest to the Respondent, the claim for interest is therefore ineffective and should not be used in calculating the Respondent’s indebtedness. On this, Counsel relied on the case of BANK OF THE NORTH LTD v. ONIYO (2002) FWLR (PT.129). Respondent’s Counsel submitted relying on the case of DANIEL HOLDINGS LTD V. UBA PLC (2005) ALL FWLR (PT.277) 895, that interest has to be proved through evidence and that in the instant case, it is uncertain what rate of interest were used in computing the account at different period or date as evidence of Dw1 and Dw2 on 42% interest rate of interest charged contradicted the statement of defence.
In response to the Appellant’s submission on Exhibit ‘N’ that is the paying teller with sum of N179.52k, Respondent’s Counsel said the inability of the Appellants to reflect Exhibit ‘N’ and the sum of N20, 620.00 which was seized by Appellants from Respondent’s Savings Account in Exhibits ‘M to M7’ were amongst the many factors which exposed the unreliability of Exhibits ‘M to M7′ in proof of the Appellants’ Counter-claim. Contrary to the appellants’ suggestion, Respondent’s Counsel relied on Section 38 of the Evidence Act and said that the mere tendering of the discredited statement of account Exhibit ‘M to M7′ cannot on its own make the Appellants to be entitled to Judgment in their counter-claim.
Finally and in response to the Appellants’ submission that without evidence of repayment the Appellants were entitled to their counterclaim in its entirety or to the extent of the debt proved/and or admitted, Respondent’s Counsel said the Appellants were uncertain of the actual amount they claim as indebtedness of the Respondent as to entitle them to Judgment and that though the case of ASABA ILE MILL PLC v. BONA ILE LTD (2007) 1 NWLR (PT.1015) 259 states the correct position of the law, the facts are not applicable to the instant case.
The major problem faced by the learned trial Judge in the resolution of the Counter-claim before him is the contradiction between the pleadings and evidence of the Appellant as to the applicable interest rate and perhaps also the inability of Exhibit ‘M to M7’ the statement of account tendered by the Appellant to clearly demonstrate the exact indebtedness of the Respondent to the Appellant.
Meanwhile, the parties and the Court are agreed that the Respondent by Exhibit ‘F’ a letter from the Respondent to the Appellant acknowledged his debit balance to be N153, 415.16 as at 11th April, 1990.
In those circumstances, the pertinent question is whether the proper order on the Appellants’ counter-claim was that of dismissal or non-suit.
Consequent on the above question, Hearing Notices were issued to both parties to further address the Court on:
“Whether from the totality of the evidence led, the Defendant’s/Appellant’s/Counter Claimant’s case ought not to be non-suited.”
On Tuesday the 28th April, 2009 Counsel for the parties addressed the Court and not unexpectedly took different positions. Learned Counsel for the Appellants reluctantly conceded to an order of non-suit if the Court is unable to uphold the appeal. Respondent’s Counsel did not change the position as contained in his brief of argument for dismissal of the appeal.
Let me start by saying that the facts of this case are fairly similar to that of the case of YESUFU v. AFRICAN CONTINENTAL BANK (2) SC: 48/1979 delivered on 25/1/1980, (1976-1984) 3 N.B.L.R. 547 In that case, the Plaintiff/Respondent bank claimed against the defendant/appellant, Chief Festus Sunmola Yesufu the sum of N1,128,057.40 being money granted to the appellant at his request by way of overdrafts and other facilities drawn on his current account No. 2285 at the’ Benin City Branch.
The facilities were granted at a compound interest of 9% per annum. The appellant used his landed properties in Benin City as security for the overdraft. The said sum of N1,128,057.40 included the principal, interest and other bank charges calculated up to and inclusive of 30th April, 1976.
The respondent also claimed an order of specific performance compelling the appellant to make and exercise a valid legal deed of mortgage of the landed property deposited with the respondent by way of an equitable mortgage by the appellant. It also sought a declaration that it was entitled to exercise the power of sale over the appellant’s landed property situate in Benin City. At the trial, the respondent tendered a lot of documents including a letter written by the appellant to the respondent admitting his indebtedness.
Upon conclusion of trial the learned trial Chief Judge (Ovie-Whiskey, CJ) entered judgment for the respondent in the sum of N661, 993.42 and dismissed the other claims. Both parties were dissatisfied with the judgment, so appealed to the Court of Appeal. The Court of Appeal allowed both the appeal and the cross-appeal, the sum total of which resulted in setting aside the judgment and order of award by trial Court, and in its place entered a non-suit.
Still dissatisfied, the appellant appealed to the Supreme Court contending that an order of dismissal was the most appropriate order to have been made in the circumstance. The appeal turned out on whether it was proper to non-suit the respondent as the Court of Appeal had done or whether it was proper to dismiss the respondent’s claims under the circumstances.
The Supreme Court consisting of Irekefe, Bello, Eso, Nnamani and Uwais, JSC in five separate but unanimous judgment non-suited the Plaintiff’s/Respondent’s case for the second time and for the same reasons given in the earlier case of YESUFU v A.C.B. (1974) 4 S.C.1. In YESUFU v. A.C.B. (2) (supra) p.555 the Supreme Court noted that the powers of entertaining a non-suit should be employed advisedly and adopted the meaning of non-suit which it had earlier given in the case of CRAIG v. CRAIG (1960) ALL N.L.R. 52 and MANDILAS AND KARABERIES v. ORIDOTA (1972) 2 S. C. 47, 50 that
“Inevitably a non-suit means giving the plaintiffs second chance to prove his case. This Court has to consider whether in this case that would be wrongdoing the defendant, and on the other hand whether the dismissal would be wrongdoing the plaintiffs.”
The Court added that every case will depend on its own merit and it would not be right to lay down a hard and fast rule about when to enter a non-suit more than to invoke a general statement. See DAWODU v. GOMEZ 12 W.A.C.A. 151, 152, NWAKACHE v. AZUBIKE 15 W.A.C.A. 46, DADA v. OGUNREMI (1967) N.M.L.R. 181, 185.
In the YESUFU v. A.C.B. (2) case, the Supreme Court frowned at the failure of the Plaintiff/Respondent bank to take the opportunity of a second chance of non-suit giving to it in the previous Suit of YESUFU v. A.C.B. (supra), more especially as the same Exhibit ‘O’, which was an admission of indebtedness by the Appellant to the Respondent resurfaced as Exhibit 8 in the later case of YESUFU v. A.C.B. (2) (supra). But in spite of the fact that the Court was mindful that there must be an end to litigation, the Supreme Court gave the plaintiff/respondent bank a ‘third chance’ as it were in the case of YESUFU v. A.C.B. (2) (supra) by ordering non-suit for the second time on appeal by the Appellant.
At pages 555 – 556 of the Nigerian Banking Law Reports, the, Court observed thus:
“It is rather unfortunate that the respondents did not take advantage of the order of non-suit made by this Court in 1976 especially as that order of non-suit was made precisely as a result of the letter, exhibit ‘O’ in that case (and now exhibit 8 in the instant case) whereby the appellant made an admission of indebtedness to the respondents. Nevertheless, it is my considered view that, having regard to that admission it would clearly be wrongdoing the respondents if they are not given yet another chance (albeit the last chance, as there must be an end to litigation), for I am in clear agreement with the Federal Court of Appeal when that Court held that:
“on the evidence before the lower Court defendant definitely is not entitled to judgment since it is clear that he owed something to the plaintiff.”
The Justices of the Supreme Court restated the law that a non-suit order should not be made unless two elements are present in the aborted trial, namely:
(a) It must appear on the record of the case taken that the plaintiff have not failed in toto; and
(b) That in any case, the defendant would not be entitled to the judgment of the Court.
In the instant case, there were discrepancies in the calculations contained in Exhibits ‘M – M7’ the statement of account tendered by the defendant Counter Claimant/Appellant and the witnesses for the Appellant were not able to support the interest of 42% monthly rest contained in the Appellant’s counter-claim.
Meanwhile, as it was in the case of YESUFU v. A.C.B. (2) (supra) in the instant case, the Respondent as far back as 11th April, 1990 admitted through Exhibit ‘F’ that he was indebted to the Appellant to the tune of N153, 415.16.
Clearly, the appellant upon this admission should not in the interest of justice be permitted to get away with what he admittedly owes. The Appellant through Exhibit ‘F’ not only admitted owing the Respondent but undertook to liquidate and pleaded that all impending legal actions against him be suspended. Also, and perhaps ironically too, even though it was the Respondent that first instituted action against the Appellant in this case to stop the exercise of the Respondent’s power of sale under the mortgage deed. In his evidence-in-chief, the Respondent nevertheless, maintained that he wanted the Court to plead with the Appellant for him, not to sell his property. Obviously, those are not facts that would make any trial Judge to dismiss the Appellant’s Counter-claim against the Respondent at least not with the bundles of admission of debt on record.
In, STEPHE KAURA & 35 OTHERS v. UNITED BANK FOR AFRICA PLC (2005)8 NWLR (PT.926) 24 AT 36, the Court of Appeal (Abuja Division) recognized that in the exercise of the trial Judge’s discretion to non-suit, each case must be decided on its own facts, adopted and extended the principles laid down by the Supreme Court in MANDILAS & KARABERIES v. ORIDOTA (supra), YESUFU v. A.C.B. (1974) 4 S.C. 1 and YESUFU v. A.C.B. (2) (supra) to restate the following guidelines:
(a) a non-suit is appropriate where there is no satisfactory evidence enabling the Court to give judgment to either of the parties and wrongdoing neither of them. See OKPALA & ORS v. IPEME & ORS (1989) 2 NWLR (PT.102) 208 (1989) 1 NSCC 567 AT 580; ADEYOLA v. AKIHSAN (1939) 15 NLR; ENI v. AIGBEDON (1972) 1 ALL NLR (PT.2) 370, (1973) 1 NMLR 33. Thus, it must appear on the record of the case taken as a whole that the plaintiff has not failed in toto and the defendant would not in any case, be entitled to judgment of the Court. AFRICAN CONTINENTAL BANK v. YESUFU (1980) 1-2 SC 49, OLAGBEMIRO v. AJAGUNGBADE II (1990) 3 NWLR (PT. 136) 37.
(b) Where the dismissal of the claim might work injustice to the plaintiff and no justice or hardship need result to the defendent from non-suiting the plaintiff, an order of non-suit would produce the juster result. See AWOSANYA v. ALHAJ ALGATA v. MADAM H. EKO (1965) 1 ALL NLR 228. Such an order is thus made in this circumstance in the interest of justice and not for both parties. OGBECHIE v. ONOCHIE (1988) 1 NWLR (PT. 70) 370 AT 395.
(c) An order of non-suit cannot be made where the Plaintiff has failed to establish the case put forward in his pleadings EGONU V. EGONU (1978) 11 -12 SC III, ODUM v. CHINWO (1978) 6 – 7 SC 251, OYEYIOLA v. ADEOTI (1973) 1 NMLR 103. It should not be made for the purpose of allowing the plaintiff who had failed to prove his case to have a second bite on the cherry. MANDILAS & KARABERIES v. ORIDOTA (supra), NIGERIAN FISHING CO. & ORS. V. WESTERN NIGERIA FINANCE CORPORATION (1969) 1 NMLR 164.
(d) It is proper to non-suit a plaintiff whose case has failed on a mere technical ground and not because he has not proved his case on the merit. The interest of justice demands that he be given a second chance of presenting his case. OGUNLOYE v. DUROSINMI (1975) 12 SC 49.
(e) Where the issues before a trial Court were never properly clarified and the real issue between the parties cannot be determined, the Plaintiff should be non-suited instead of his case being dismissed. See EVOYOMA & ORS. V. DAREGBA & ORS (1968) 1 ALL NLR 192.
(f) In an Appeal Court, for a non-suit order to be made, the appellant’s complaint against the judgment of the lower Court must have first been upheld. OGBECHIE v. ONOCHIE (supra).
In the instant case, the issues before the trial Court were never properly classified and the real issue in the Defendant’s/Appellant Counter-claim as to the indebtedness of the sum of “N348, 024.65 as at 4/11/92 with 42% per annum calculated as monthly rests until the entire debt and interests are liquidated, which debt stood at N3, 929.577.07 as at 26/9/2004” contained in paragraph 21 of the Appellant’s Counter-claim could not be determined. Consequently, the learned trial Judge was in error to have dismissed the counter-claim of the Appellant. Instead of non-suiting same.
The appeal is meritorious, it succeeds and it is accordingly allowed. The Judgment of F. U. Ilok, J. in Suit No. C/269/91 in which the Counterclaim of the Defendant/Appellant was dismissed is hereby set aside. Instead, the counter-claim of the Defendant/Counter Claimant in Suit No. C/269/91 is non-suited. And that shall be the judgment of the Court.
There shall be costs of N10,000.00 in favour of the 1st Appellant as against the Respondent.
Other Citations: (2009)LCN/3293(CA)
