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.

2. 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.

2. 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.
3. 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.