Guardian Law ReportIn the Court of Appeal,Holden at Ibadan,On Thursday, March 8, 2012,Before their lordships:Stanley Shenko Alagoa (OFR) ' Justice, Court of Appeal;Modupe Fasanmi, Justice, Court of Appeal;Joseph Shagbaor Ikyegh, Justice, Court of Appeal;CA/1/252/2008Suit No. 1/809/90Between:Union Bank of Nigeria Plc ' (appellant)and' Godwill Brothers Nig. Ltd' Kehinde Fayemi (for himself and on behalf of other Administrators of the Estate of late J.B. Fayemi) ' RespondentSuit No. 1/228/95betweenUnion Bank of Nigeria Plc' (appellant)and' Godwill Brothers (Nig) Ltd' Kehinde Fayemi' Olumide Fayemi ' (respondent)Judgment(Delivered by Modupe Fasanmi, J.C.A)THIS is an appeal against the decision of an Oyo High Court sitting in Ibadan delivered on June 6, 2006.By consent of the parties, the two suits giving rise to this appeal, i.e. Suit No. 1/809/90 and Suit No. 1/228/95 were consolidated at the lower Court. In suit no. 1/809/90, the plaintiffs are Goodwill Brothers (Nig.) Ltd and Mr. Behind Fayemi (the personal representative of its deceased former managing director) while the defendant is Union Bank of Nig. Plc. In suit No. 1/228/95, Union Bank of Nigeria Plc is the plaintiff while the defendants are Goodwill Brothers (Nig.) Ltd, Mr. Kehinde Fayemi and Mr. Olumide Fayemi, the personal representatives of the late former Managing Director of Goodwill Brothers (Nig.) Ltd, J.B. Fayemi.Goodwill Brothers (Nig.) Ltd and related parties shall henceforth be described as the plaintiffs/respondents whilst Union Bank of Nigeria Plc will be described as the defendant/appellant.The plaintiffs/respondents amended claim against the defendant/appellant in Suit No. 1/809/90 as follows:' The sum of N15,000,000.00 being general damages flowing from the negligence of the defendant in handling of the account of the plaintiffs.' An order directing the defendant to credit 1st Plaintiff's Account forthwith with the following sums:' Interest accruable on cash deposit ' N1,814,982.72;' Further interest accruable on cash deposit ' N152,198.27;' Refund of 100 per cent deposit on IRO IBC 3346 ' 467,345.52;' Interest accruable to deposit in Naira IRO IBC 1977 ' 338,492.92;' RE-IBC 1494 for $64,908.28 ' 291,201.77;' Compulsory Advance Deposit IRO IBC 3/17001 ' 283,368.74;' Interest accruable to DBC 76980 for $20,733 ' N229,626.71;' Interest accruable to various refunds on Forex Transactions ' 205,604.17;' Additional Interest Accruable to cash margin ' 13,986.93;' Excessive Overdraft Interest ' 2,612,494.96SUB-TOTAL6,409,302.71General damages 15,000,000.00Total Claim 21,409,302.71' An order compelling the defendant to credit the 1st plaintiff's account with the value of Bills No. DBC 76980; IBDNB 0153 with interest from 1976 at the rate of 28 per cent per annum till judgment and thereafter 20 per cent till judgment is finally liquidated;' An order compelling the defendant to pay the plaintiffs the sum of N10 million being the difference between the applicable pre-FEM rate in respect of bills No. IBC 1494 and IBC 3546 and the rate of which the said outstanding bills were remitted by private arrangement as at the time of judgment/payment;' An order compelling defendant to pay the plaintiffs the sum of N50,000.00 being the value of Life Insurance Policy of the 2nd plaintiff which lapsed owing to the non-payment of premium by the defendant;' An order of injunction restraining the defendants, their agents, servants or privies from selling, disposing of or in any way tempering with the properties of the 2nd plaintiff registered as No. 36 at page 36 in Volume 1392; No. 56 at page 56 in Volume 2264; and No. 26 at page 26 in Volume 1115 all of the Lands Registry in the office at Ibadan;' The sum N101,532.11 being amount of N2,500.00 refund from the unpresented draft purchased in favour of Luxram Limited and interest accruing therefrom;' A declaration that the defendant is bound to pay the cost of the various outstanding bills at the exchange rate prevailing as at the time of payment or remittance of the said outstanding bills;' An order directing the defendant to pay the plaintiffs the cost of remitting the various outstanding bills at the prevailing exchange rate as at the time of payment or remittance to the foreign suppliers.'The appellant joined issues with the respondents and contended in its statement of defence that the alleged causes of action in Suit no. 1/809/90 were all statute barred even before commencement of the action August on 24, 1990. Appellant also raised defence to the respondents' claims. The defence are contained in the appellant's consequential amended statement of defence dated November 21, 2003.In suit no. 1/228/95, the appellant as plaintiff claimed against the respondents a total sum of N3,137,984.00 and interest thereon at the rate of 21 per cent per annum from November 5, 1994, until judgment and/or payment and thereafter at 10 per cent per annum until the judgment is liquidated, being the balance of unpaid bank facilities granted by the appellant to the 1st respondent together with the accrued interest thereon outstanding against the account of the 1st respondent. Appellant's claim is contained in its further amended statement of claim dated May 28, 2003, which is contained at pages 22-23 of the record of appeal.The court, after reviewing the evidence on record and the pleadings of the parties found for the respondents on part of its claims and also entered judgment in favour of the appellant in suit no. 1/228/95 for the sum of N3,137,984 claimed by the appellant as the sum outstanding on the account of the 1st respondent with the appellant as at November 5,1994. The lower court proceeded to set one claim off against the other and entered judgment in favour of the respondents for the difference, amounting in its judgment to the sum of N783,308.44. It is against the judgment that the appellant has appealed.Appellant's brief of argument is dated and filed on May 25, 2009, while the respondents brief of argument is dated and filed on October 30, 2009. Appellant distilled three issues for determination from the amended notice of appeal containing five grounds of appeal filed on March 25, 2009. The issues are stated hereunder:' Whether the lower court was not in grievous error when it held that the Appellant's pleadings in suit No. 1/809/90 did not specifically put the difference of limitation of action in issue and thus failed to consider the defence;' Whether the lower court was not in grievous error when it failed to properly evaluate the oral and documentary evidence led by the parties in this suit as well as the arguments proffered in the written addresses of counsel and reach the conclusion that the evidence and arguments relied upon by the respondents in support of their claims was completely lacking in credibility and did not support a finding that the appellant was liable to the respondents in respect of any of their claims;' whether the lower court was not in grievous error when it held, without any or proper analysis, that the sum of N3,157,984 outstanding on the 1st respondent's statement of account with the appellant as at November 5, 1994, was the result of excessive interest and other charges and proceeded to carry out a set off of this amount with the amount it had awarded in favour of the respondents without reference to the appellant's claims for pre and post judgment interest'Learned counsel for the respondents adopted the three issues raised by the appellant.Issue oneWhether the lower court was not in grievous error when it held that the appellant's pleadings in suit No. 1/809/90 did not specifically put the defence of Limitation of Action in issue and thus failed to consider the defence.Learned counsel for the appellant submitted that the defence of limitation was the first defence raised in the appellant's statement of defence in paragraph 2. The respondents did not content that the appellant's pleading of the defence of limitation was insufficient or vague. On the contrary, the respondents joined issues with the appellant on this defence and proffered arguments in reliance on various provisions of the Oyo State Limitation Edict of 1989, which in their contention exculpated their claims from the effect of the statute. Learned Silk for the appellant submitted that the defence of limitation was not only pleaded but copious oral and documentary evidence were led and tendered respectively by the parties before the trial court, which established the dates when the respondents various causes of action arose and the parties final addresses dealt extensively with the defence of limitation as well. He contended that in addition to the appellant's pleading in paragraph two of the appellants statement of defence, appellant dedicated six full pages of its final written address to an exposition and analysis of the Respondents various causes of action in this suit and related the dates on which each of these causes of action arose to the date of commencement of suit No. 1/809/90 in order to establish that most of these causes of action were in fact caught by the Statute of Limitations and were indeed Sstatute barred. Learned Silk submitted that the decisions in Anyaorah vs. Anyaorah (2001) 7 N.W.L.R. Part 711 page 158 and Ude Vs. A.G. Rivers State (2002) 4 N.W..L.R. Part 796 page 66 are not applicable. He urged the court to set aside the decision of the lower court because the findings are perverse. Learned silk urged the court to resolve this issue in favour of the appellant.Learned counsel for the respondent submitted that the issue of how a party wishing to rely on a Statute of Limitation must specifically plead same is provided for in Order 25 Rule 6(1) and (2) of the High Court (Civil Procedure) Rules of Oyo State. Learned Counsel referred to the case of Iheanacho vs. Elogu (1995) 4 N.W.L.R. Part 389 Page 324 where the court held that the Statute of Limitation must be specifically pleaded and Allen vs. Odubeko (1997) 5 N.W.L.R Part 506 Page 638 where the court stated that as the limitation law was not specifically pleaded by the defendants/appellants, they cannot rely on its as a defence.Appellant failed to rise distinctly as enjoined by law the particular statutory provision relied upon. Submitted further that none of the two witnesses called by the appellant at the trial led any evidence as to the dates and time causes of action arose and when the claims became statute barred. Those dates and times were not pleaded. He referred to the case of Ajasin Vs. Omoborioowo (1984) 1 SC Page 206 at 207 per Sowemimo C (as he then was) where he stated that such a contention is deemed abandoned if evidence was not led in support of it. Learned Counsel referred to the case of Polycarp Effiong vs. Cross River State I.N.E.C. and Anor. Vol. 45 N.S.C.Q.R. Page 339 at 370 and Ibekwe Vs. Imo Educational Management Board (2009) ALL F.W.L.R. Part 488 Page 297 at 301. Learned counsel for the respondent urged the court to resolve issue one in favour of the respondents.It is trite law that where the defence of limitation is available to a defendant and it is established as required by law, it puts an end to the claim of the plaintiff. However, the limitation law does not operate in vacuum. It must be specifically pleaded and proved. The onus is always on the defendant to prove that a cause of action is statute barred. See the case of Savannah Bank of Nigeria Ltd. Vs. Pan Atlantic Shipping and Transport Agencies Ltd. (1987) 1 N.W.L.R. Part 49 at 212.In the instant case, appellant owed a duty to plead when the cause of action arose and when the action was statute barred. Paragraph 2 of the Consequential Amended Statement of Defence of the appellant shown at page 14 of the records averred as follows:'The defendant will contend at the hearing of this matter that the plaintiffs alleged causes of action are all statute barred and were so barred before the commencement of this action.'When the causes of action arose and when it became statute barred were not pleaded. No evidence was led in respect thereof. None of the two witnesses called by the appellant at the trial led any evidence as to the dates and time the causes of action arose and when the claims became statute barred. The documents tendered did not and could not have established the dates and cause of action arose or when claims upon them became statute barred as postulated by the appellant's counsel in his brief, these being matters of pleading and the documents can be proof of the averments.Counsel's address cannot be a substitute for the evidence that has not been led and it cannot supplement the inadequacy of the evidence already given at the trial of the suit. See the case of Yeye Vs. Olubode (1974) 10 S.C. Page 209 at 215. It is trite law that when no evidence was led as to the date the cause of action accrued, the defence of Statute of Limitation will be deemed to have been abandoned. See the case of Federal Capital Development Authority vs. Noibi (1990) 3 N.W.L.R. Part 138 Page 2709 at 282.Appellant did not plead facts that would enable the court find whether or not the claims were statute barred. The learned trial judge rightly held that paragraph 2 of the statement of defence is vague and as such did not put in issue the defence of limitation. Issue one is hereby resolved against the appellants.Issue twoWhether the lower court was not in grievous error when it failed to properly evaluate the oral and documentary evidence led by the parties in this suit, as well as the arguments proffered in the written addresses of counsel and reach the conclusion that the evidence and arguments relied upon by the respondents in support of their claims was completely lacking in credibility and did not support a finding that the appellant was liable to the respondent in respect of any of their claim.Learned silk for the appellant submitted that the lower court failed to properly evaluate the oral and documentary evidence led by the parties and also failed to give any or proper consideration to the arguments proffered on behalf of the appellant in its final written address. Submitted that if the lower court had properly evaluated the oral and documentary evidence led by the parties and had given due consideration to the arguments proffered on behalf of the appellant, it would have dismissed the respondents claims in suit No. 1/809/90 in their entirety. Learned Silk contended that the respondents in leg 2(iii) claimed the sum of N467,345.52 as refund of 100 per cent deposit in naira on IBC 3546. Submitted that the indication that the lower court had failed to properly evaluate the evidence and arguments in relation to this claim was revealed when it stated that:'The defendant has argued that this claim is unmeritorious. This argument is based on the fact that there was no credible evidence to substantiate the claim by P.W.1 that they had to look for alternative means of paying the foreign supplier and ended up spending N4.4 million to meet the bill.''To be continued
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