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  • 2003-11-03
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Kolo vs. 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 - Cause of action - What is - When accrues

ACTION - Statute-barred action - How to determine

ACTION - Action for recovery of loans and bank overdrafts - Condition precedent to

BANKING LAW - Action for recovery of loans and bank overdrafts Condition precedent to the right of

BANKNG LAW -Interest -Application for interest waiver- Where made by customer to banker - Effect on computation of limitation period where the application remained unanswered

BANKING  LAW - Recovery of bank loan - Unanswered application for interest waiver made by customer to banker - Effect of on computation of limitation period

EVIDENCE - Evidence of the adverse party - Whether a party to a suit can rely on

EVIDENCE - Inadmissible evidence - Effect of basing judgment thereon EVIDENCE - Admissibility - Document - Letters marked ‘without prejudice’ or facts emanating from offers of compromise or attempt at out of court settlement - Inadmissibility of

JUDGMENT AND ORDERS - Judgment based on inadmissible evidence Effect of

LIMITATION OF ACTION - Statute-barred action - How the court determines

LIMITATION OF ACTION - Action for recovery of bank loan - Unanswered application for interest waiver made by customer to banker -Effect of on computation of limitation period

PRACTICE AND PROCEDURE - Action - Cause of action - How to determine

Issue:

Whether the decision of the trial court that the action is not statutebarred is sustainable despite reliance on inadmissible evidence.

Facts:

The plaintiff sued the defendant on 9/1/97 for recovery of debt arising from an overdraft facility granted the defendant between 1976 to 1979 . The defendant made certain payments to the plaintiff in settlement of the loan account and the last of such payments was made on 16/2/88. Thereafter, defendant applied to the plaintiff for interest waiver, which waiver would have terminated the loan account, but the plaintiff made no reply. The defendant admitted receiving a demand letter from the plaintiff in the month of January, 1995 and another demand notice in 1996, followed by the writ of summons in this case.

Upon being served with the writ and statement of claim, the defendant/appellant filed his statement of defence and subsequently filed a notice of preliminary objection supported by affidavit evidence contending that the action is statute-barred by effluxion of time. The plaintiff relied on defendant‘s affidavit and opposed the application on points of law.

In his ruling, the learned trial Judge overruled the objection. Dissatisfied, the defendant/appellant filed this appeal.