Ogwule Ankpa Agatu Co-operative Group Farming Society & Anor. V. Nigerian Agricultural and Co-operative Bank Limited & Anor. (1999)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

This is an appeal against the decision of the Benue State High Court sitting in Otukpo in suit No. OHC/5/92 wherein the appellants herein as plaintiffs sued the respondents as defendants claiming reliefs particularised in their writ and as formulated in paragraph 21 of their joint statement of claim as follows:

“21. Whereof the plaintiffs jointly and severally claim against the defendants jointly and severally the following reliefs to wit:

1(a) A declaration that the seizure of the plaintiffs’ tractor with Reg. No. BN 481 X by the 2nd defendant upon a purported instruction of the 1st defendant was illegal, null and void and ultra vires the defendants as the same was not done in accordance with the terms and spirit of the loan agreement.

(b) An order directing or compelling the defendants jointly and severally to return the plaintiffs’ tractor to them forthwith and in good and serviceable condition.

(c) An order setting aside or compelling the defendants to write-off as bad debt the accumulated interests and charges on the principal sum granted to the plaintiffs from the day the tractor was seized until judgment was delivered as the illegal seizure caused the plaintiffs not to honour their obligations within the material period.

(d) An order compelling the defendants to pay to the plaintiffs the sum of N6.000.00 monthly being the expected monthly income from the said tractor from the date of judgment until the judgment or orders of the court are fully satisfied by the defendants or until such a time the tractor is returned to the plaintiffs in good order.

2. And whereof the plaintiffs also claim against the defendants jointly and severally the sum of N200,000.00 (Two Hundred Thousand Naira) being special and general damages suffered by the plaintiffs as a result of the defendants’ actions or conducts.

Particulars of special and general damages

i. The sum of N144,800.00 (One Hundred and Forty Four Thousand and Eight Hundred Naira) being special damages (the sum of N800.00 collected by the 2nd defendant inclusive.)

ii. The sum of N55.200.00 (Fifty-Five Thousand and Two Hundred Naira) being general damages suffered by the defendants including the deceit practised on the plaintiffs by the 2nd defendant Grand Total: N200,000.00″

The case was tried on pleadings, to wit, the plaintiffs’ joint statement of claim and the defendants joint statement of defence. At the close of the plaintiffs’ case, the defendants resting their case on that of the plaintiffs made a no case submission. In his judgment delivered on 6th April, 1995, Tur J. dismissed the plaintiffs claims.

Dissatisfied by that judgment, the plaintiffs hereinafter referred to as the appellants appealed to this court based on two ground of appeal which read as follows:-

1. The learned trial Judge erred in law by failing to apply the provisions of section 139 of the Evidence Act 1990 to the facts of the case before him.

Particulars of error

1. Both parties agreed in their pleadings that there was a loan agreement between them. It was the defendants that pleaded in paragraph 11 of its statement of defence that it had right under the said agreement in addition to the mortgage properties to seize one movable property of the 1st plaintiff. The burden of proving the averment which defeats the case of the plaintiffs rests on the defendants. The learned trial Judge failed to place this burden on the defendants but proceeded to dismiss plaintiffs’ claim when the defendants made no attempt whatsoever to prove this averment.

The learned trial Judge erred in law when he dismissed the case of the plaintiffs instead of non-suiting the plaintiffs.