JOEL OKUNRINBOYE EXPORT COMPANY LIMITED & ANOR v. SKYE BANK PLC.

CORAM

PARTIES

1. JOEL OKUNRINBOYE EXPORT COMPANY LIMITED

2. SENATOR OKUNRINBOYE

APPELLANTS 

SKYE BANK PLC

AREA(S) OF LAW

SUMMARY OF FACTS

The 2nd Appellant who is the Chief Executive Officer of the 1st Appellant, entered into a business dealings with the Respondent, who at that time was known as Cooperative Bank Plc with headquarters at Ibadan but having a branch at Owo, Ondo State, but later merged with other banks to become Skye Bank Plc. The Appellants operated two domiciliary accounts with the Respondent for purpose of receiving foreign currencies in dollars and pounds sterling as proceeds of the 1st Appellant’s sales of cocoa exports abroad. However, sometimes in September 2005, the Appellants demanded to know the state of their financial deposits but the Respondent failed to disclose same. Also the Respondent failed to issue the Appellants with statements for its domiciliary accounts with the bank; this caused the Appellants to institute an action against the Respondent via a Writ of Summons seeking a declaration that they were entitled to the sum of $294,888.00 USD and £490,108.49 pounds sterling, being monies in their domiciliary accounts, an order to pay to the Appellants the said sum and produce accurate statement of accounts, damages, amongst other reliefs. The Respondent in its defence averred that, the Appellants was one of the Bank’s major customers when it was known as Cooperative Bank Plc, then between 1989 and 1999, it granted credit facilities to the Appellants as a cocoa exporter to facilitate and enhance its business and in return the Appellants opened domiciliary accounts in which proceeds of the said cocoa export business was to be paid. Sometimes in 1993 – 1994, the 1st Appellant could no longer meet its obligation to the Respondent due to an alleged diversion of the proceeds of cocoa export business to another Bank and this led to the indebtedness of the 1st Appellant to the Respondent, and the Respondent subsequently exercised its right of lien over monies that accrued to the Appellants’ accounts between 1993 – 1996 to satisfy the debts of the Appellants. The Respondent filed Notice of Preliminary Objection contending that the suit was statute barred which was overruled but later the lower Court dismissed the suit as being statute barred. Aggrieved, the Appellants appealed to the Court of Appeal vide a Notice of Appeal, containing 5 Grounds of Appeal. The Respondent also filed alongside its Brief of Argument, a Preliminary Objection on the ground that the appeal was incompetent.

HELD

Appeal Dismissed

ISSUES

1. Whether the trial court was right in holding that the Appellants’ suit was statute barred when special defence of statute of limitation was not specifically pleaded by the Respondent and the lower court had earlier ruled that the suit was not statute barred?

2. Whether the lower court was right to have dismissed the claim of the Appellants in spite of the fact that the Appellants established by preponderance of evidence that it has proceeds of cocoa export in its domiciliary accounts and the Respondent failed to establish the actual amount it applied from the Appellants’ domiciliary accounts to reduce the alleged indebtedness of the 1st Appellant to it?

RATIONES DECIDENDI

NOTICE OF APPEAL – CONSEQUENCES OF A DEFECTIVE NOTICE OF APPEAL

“There exists no doubt as to the importance of a Notice of Appeal as it is the foundation of an appeal and it is the condition precedent to effective appeal against any appealable decision hence where a notice of appeal is defective, the Court of Appeal lacks the legal competence to entertain the appeal since the Notice of Appeal is a nullity and a fortiori, there never was any appeal lodged or filed ab initio. ln such circumstance the court will strike out the appeal. See: Olowokere vs. African Newspapers of Nig. Ltd. (1993) 5 NWLR (Pt.295) 583 @ 586 ratio 1. –

STATUTE OF LIMITATION – EFFECT OF FAILURE TO TIMEOUSLY RELY ON THE STATUTE OF LIMITATION AS A DEFENCE

“In the present appeal the Appellant would have it declared in its favour that the Plaintiff/Respondent’s action in the lower court was statute barred and was incompetent for the non fulfillment of a condition precedent. By the mandatory provision of Order 25, Rule 6(1) and (2) it should have specifically pleaded these matters in its Further Amended Statement of Defence. As if failed to do so, I must agree with the Respondent that it had waived its rights to the benefits of those provision and it is too late in the day to raise the point as of right. No application has been made for leave to raise it for the first time before us. See; Mobil Producing Nigeria Unlimited vs. Lagos State Environment Protection Agency & 1 Ors. (2002) 18 NWLR (Pt.789) 1.” –

PERIOD OF LIMITATION – DETERMINATION OF A PERIOD OF LIMITATION

“It is trite law that in the determination of a period of limitation, one has to look at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing the date with that on which the writ was; filed, one would be able to resolve the issue if the suit is within or outside the limitation period allowed by law. See Omotayo vs. NRC (992) 7 NWLR (Pt.254) 471 @ 483. –

PERIOD OF LIMITATION –EFFECT OF NOT COMMENCING A LAW SUIT OR JUDICIAL PROCEEDING WITHIN THE SPECIFIED PERIOD

“Going by the extant Limitation Laws of Ondo State of Nig. Vol. 2 CAP 83, cited as Limitation Law, Laws of Ondo State 1976 Cap 61, part 2(4) 1 states thus:
“(1) The following action shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:
(a) Action founded on simple contract or tort
(2) Action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.”
A bank and customer relationship being contractual in nature is therefore captured in the above provision. The cause of action arose in 1996 (according to the Statement of Claim) and in 1998, going by the ipse dixit of PW3, the action was instituted in 2008. Now in applying the ordinary minus differential formulae in arithmetic gives 11/9 years respectively, either way the Appellants instituted this action at least 9 years after the knowledge of the existence of a cause of action by at least three (3) “offending” years.
Now, the question of limitation of actions is not a mere matter of practice and procedure alone but a matter of law as contained in the relevant statutes.
Therefore a plethora of cases have held that the effect of not commencing a law suit or judicial proceeding within the specified period is that such a claim will be extinguished after the time for commencing it has elapsed. Thus the claim or injury with the resulting damage or loss becomes, in the words of the Supreme Court “Otiose with defluxion of time.” See Olutola vs. University of Ilorin (supra); Mercantile Bank (Nig.) Ltd. vs. Feteco (1998) 3 NWLR (Pt.540) 143 @ 157. –

DEFENCE OF LIMITATION – NATURE OF THE DEFENCE OF LIMITATION -WHEN CAN IT WILL AVAIL A PARTY?

“My humble response to this is that it is matter of state policy that there be an end to litigations, this principle of law “INTEREST REIPUBLICAE UT SIT FINIS LITIUM” which means that (It concerns the State that there be an end of law suits), the objective of this principle is to among other things, avoid spurious litigations, and also to ensure that people who truly seek for justice should remain vigilant on the course in line with the maxim. VIGILANTIBUS ET NON DORMENTIBUS JURA SUBVIENUIT”, which means the law, will aid the vigilant and not those who sleep on their right. Having said this, there is no gain saying that the issue of limitation is a substantial issue of law which removes the right of action, the right of enforcement and even the right of a judicial relief of those parties who have slept on their right. According to Niki Tobi, JCA (as he then was) in the case of Mercantile Bank (Nig.) Ltd. vs. Feteco (1998) 3 NWLR (Pt.540) 143 @ 157 thus:
“It has been held that a court of law does not have the competence to declare a statute of limitation a nullity on the so called ground that it does “technical justice,” that to me, is the hidden intention and ambition of the submission of learned counsel. To me a statute of limitation does vibrant, consistent and substantial justice and not technical justice.”
From the foregoing, it can be rightly said that the defence of limitation is a substantial issue that bothers on jurisdictional competence of the court to entertain a matter before it, but this averment is only to the extent that it is “properly raised” (Emphasis mine). By that I mean to say, it must be specifically pleaded in line with the provisions of Order 25 Rule 6(1)(2).
Some learned authors had this to say on this issue thus:
“For almost all caries there is a limitation period within which the proceedings must be issued…. .Once the limitation period has expired, the Defendant can set up as a full defence, though for it to inure in favour of the Defendant, the Defendant must specifically plead it.” (Emphasis; mine)
The above clearly shows that this right is a qualified right and the consequence of adhering; to this condition can only mean consent in line with the principle of “CONSENSUS TOLLIT ERROREM” consent removes mistakes. Also in the case of Buba Plc. Vs. BTL Industries Ltd. (2006) 19 NWLR (Pt 1013) 61 @ 106, paras F– H, the Supreme Court, held on this issue thus:
‘As this is a special defence which Appellant was raising for the first time in this court, we were urged to strike out this issue on grounds of incompetence, it being settled law that special defences must be specifically pleaded.
2. Ibrahim Kano vs. Gbadamosi Oyelakin (1993) 3 NWLR (Pt.282) 399 @ 404 paras D – F which states as follows:-
A defence which is a special defence and is available to the Defendant at the time of the action must be pleaded specifically; where it is not pleaded, it could not be raised on appeal.
In the instant case it is glaring from the records that these requirements were not fulfilled by the Respondent to qualify it for this avowed defence of limitation only for it to spring up in the court of trial, though the trial Judge and the Respondent adduced reasons for this, which however tenable does not suffice enough to change the legal position on this issue. Also see the cases of Ademolaju vs. Adenipekun (supra) Pt.450 paras C – D; Adenle vs. Olude (2002) 18 NWLR (Pt.799) 413 @ 434, paras G -‘A and F – H. –

COURT – DUTY OF THE TRIAL COURT TO EVALUATE FACTS BEFORE IT SUPPORTED BY EVIDENCE IN ARRIVING AT A JUST DECISION

“Now, it is not to be overemphasized that the law is grounded on facts – EX FACTO JUS ORITUR. By this, it is the duty of the Court to voyage on a fact finding mission supported by evidence in arriving at a decision in any matter before it.
And the Court that is most imbued with this distinct task is the trial court, see Mogaji v. Odofin (1978) 4 SC 91, this court is only a Court of re-hearing which and is only allowed to interfere with the findings of the Trial Court where they are found to be perverse. And in such situations, the interference of the appellate court with the findings of fact would be to put the facts and the law in their proper context and perspective. See OdonigiVs. Agboola (1974) 10 SC 111; Ajuwa Odili (1995) 2 NWLR (PT.9) 710: –

DECLARATORY RELIEFS – NATURE OF THE BURDEN OF PROOF ON A PARTY SEEKING DECLARATORY RELIEFS

“As rightly held by the Respondent declaratory reliefs are species of reliefs that places; heavy burden on the seeker, a burden so enormous that for it to warrant a discharge, the plaintiff must plead and prove his claims on the evidence adduced by him solely, without recourse on the evidence called by the defendant, even on admission. –

CASES CITED

Not Available

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

2. Court of Appeal Rules, 2011

3. Evidence Act

4. High Court of Rivers State Civil Procedure Rules 1987

5. Limitation Laws of Ondo State of Nigeria, Vol. 2 CAP 83

6. Ondo State High Court (Civil Procedure) Rules, 1988

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