Haruna Bako Kolo V. First Bank of Nigeria Plc. (2002)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

On the 25th day of March, 1998, the High Court of Justice Plateau State presided over by Dakyen, J., silting in Jos delivered a ruling in suit No. PLD/J7/1997 filed on 9/1/97 on the undefended list. In the suit, the plaintiff claimed from the defendant the sum of N85,637.63 arising from credit facility granted the defendant by the plaintiff, a bank carrying on banking business in Nigeria. The plaintiff also claimed interest on the sum at the rate of 21% per annum from 1/6/96 till the date of judgment, and at 10% from the date of judgment till payment.

The defendant filed a notice of intention to defend the action. The court then transferred the matter to the general cause list, after fully considering same.

Parties filed and exchanged pleadings. The defendant also filed a notice of preliminary objection to the suit with an affidavit in support. The objection was to the effect that the action was statute barred.

The court below heard argument from counsel from both sides. The learned trial Judge, in the said ruling of 25/3/98, overruled the objection.

It is against this, the defendant who was dissatisfied, now appealed to this court on 3 grounds.

Counsel for the parties filed and exchanged briefs of argument in accordance with Order 6 rules 2 and 4 of the Court of Appeal Rules. The appellant also filed a reply brief. From the 3 grounds of appeal, learned counsel for the appellant, Mrs. Ogboru distilled 3 issues for determination in the appeal, as follows:-

(a) Whether the respondent was entitled to refer to facts when it did not file a counter-affidavit in support of his preliminary objection (sic).

Or in the alternative:

(b) Whether the trial Judge ought to have called oral evidence to reconcile certain conflicting facts in the affidavits.

(c) Whether the trial Judge was right in admitting in evidence, a letter marked “without prejudice”.

The respondent had identified only one issue for determination in the appeal. According to him the sole issue is: whether the decision of the court is sustainable despite reliance on inadmissible evidence.

At the hearing of the appeal, the appellant and his counsel were not in court. As appellant’s brief of argument had been duly filed and served, his appeal was deemed by us to have been duly argued pursuant to Order 6 rule 9 of the Rules of this court.

On the part of the respondent, his counsel, Mr. Ameh, was in court. He had also filed his brief of argument. He applied to amend the word “admissible” in paragraph 4.01 line 2 of the brief to read, “inadmissible”. The application was granted. The word “admissible” was replaced with the word, “inadmissible”.