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Kolo v. First Bank of Nigeria Plc.

HARUNA BAKO KOLO

V

FIRST BANK OF NIGERIA PLC

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

ISA ABUBAKAR MANGAJI, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/24/2000

THURSDAY, 11TH APRIL, 2002

ACTION - Action for recovery of debt - Cause of action therein - When same accrues

ACTION - Cause of action - Accrual of - What amounts to

ACTION - Cause of action - When same accrued - Determination of What to consider first

ACTION - Statute-barred action - How to determine - When time begins to run

APPEAL - Misdirection committed by lower court - Attitude of appellate court thereto

COMMERCIAL TRANSACTION - Debt - When becomes repayable

COURT - Misdirection committed by lower court - Attitude of appellate court thereto

EVIDENCE - Evidence of opposing party - Right of the other party to rely thereon or, admit same or adduce his own evidence

EVIDENCE - Letter marked ‘without prejudice’ - Inadmissibility of LIMITATION LAW - Limitation period - How determined - Whether can be done without taking oral evidence

LIMITATION OF ACTION - Statute-barred action - How to determine When time begins to run

PRACTICE AND PROCEDURE - Misdirection committed by lower court

-  Attitude of appellate court thereto

WORDS AND PHRASES - ‘Cause of action’ - Meaning of

Issue:

Whether the decision of the court is sustainable despite reliance on inadmissible evidence.

Facts:

This appeal emanated from the ruling of Dakyen J. of the High Court of Justice Plateau State sitting in Jos delivered on 25/03/98 in Suit No. PLD/J7/1997 filed under the undefended list. In the suit, the respondent as plaintiff claimed from the appellant as defendant the sum of N85,637.63 ( eighty five thousand, six hundred and thirty seven naira sixty three kobo ) arising from credit facility granted the appellant by the respondent, a bank carrying on banking business in Nigeria. The respondent also claimed interest on said sum.

The appellant 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 appellant 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 respondent did not file a counter-affidavit rather the learned counsel for the respondent opposed the preliminary objection on points of law and relied on the facts deposed to in the affidavit of the appellant in support of his preliminary objection to the suit.

The trial court, after listening to the argument of counsel from both sides, in the said ruling of 25/3/98, overruled the objection.

The appellant being dissatisfied with the ruling, appealed to the Court of Appeal.