Akpabuyo Local Government Council V. D’tito Company (Nig) Ltd (2016)
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CHIOMA EGONDU NWOSU-IHEME, J.C.A.
The Respondent as Claimant at the trial Court, commenced this suit by a writ of summons dated and filed on the 7/2/2013.
By a motion ex-parte filed alongside the writ praying the Court to place the suit under the undefended list, the suit was placed on the undefended list on the 11th day of February, 2013. The Appellant was served with the originating process as well as the order placing the suit on the undefended list.
On the 27th of March, 2013, S. M. ANJO, J., of the Calabar Division of the Cross River State High Court entered judgment for the Respondent as prayed. This appeal is predicated on the said judgment.
The Appellant distilled three issues for determination thus:
“(a) Whether the Learned trial Judge was right when he entered judgment on the 27th March, 2013 in favour of the Respondent herein against the Appellant, the action leading to this Appeal was prima facie incompetent,
(b) Whether having regard to Clause 5 of the Agreement referred to as Exhibit 2, attached to the affidavit of D’tito Eze-David and the provisions of Order 10
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Rules 1, 2 and 6 of the Cross River State High Court (Civil Procedure) Rule 2008, the lower Court was right in entertaining the suit leading to this Appeal and entering judgment on 27th March, 2013 in favour of the Respondent herein against the Appellant in this Appeal.
(c) Whether the Learned trial Judge was right in awarding the cost of N100,000.00 (One Hundred Thousand Naira) only in favour of the Respondent herein against the Appellant in this Appeal in its judgment on the 27th March, 2013.
The Respondent on the other hand distilled five issues for determination almost similar to the issues distilled by the Appellant, but couched differently.
“(1) Whether considering the facts of this case, the Respondent’s suit was incompetent by the provisions of the statute of limitation.
(2) Whether considering the Respondent dispositions at paragraphs 9 and 10 and Exhibits 6, 7a and 7b the Arbitration Provisions in the contract was not satisfied by both parties.
(3) Whether considering the facts of this case, the improper description of the Appellant occasioned a miscarriage of justice.
(4) Whether the Provisions of Order 10 Rule 1,
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2 and 6 of the Cross River State Civil Procedure Rules was not observed and whether that is fatal to the Respondent’s case.
(5) Whether the Appellant’s appeal is not incompetent for non compliance with the Provisions of Section 10(1) of the Legal Practitioners Act, 2010.”
Both counsel E. O. E. Ekong Esq for the Appellant and Sam Eboh Esq for the Respondent made submissions in their respective briefs in line with the issues they raised.
I will not dwell on all the issues raised by counsel in their briefs. Rather, I will deal with the first issue as distilled by counsel for the Appellant which issue deals with the suit at the trial Court being statute barred and therefore borders on the jurisdiction of the trial Court to entertain the suit. A determination of this first issue as distilled by the Appellant will determine whether or not there is need to go into the other issues. If indeed the suit is statute barred, then it becomes unnecessary to go into the other issues.
?Exhibit 2 attached to the Affidavit of the Respondent D’tito Eze-David sworn to on 7th February, 2013 is the Agreement between the Appellant and the Respondent in this Appeal.
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The said Agreement is clear on page 13 of the Record of Appeal and it is dated the 12th of December, 1997.
Also at pages 25-26 of the Record of Appeal, is a letter written by the Respondent’s Solicitor Attah Ochinke and Co. The letter was signed by E. U. Unoh Esq for Attah Ochinke & Co. The said letter was dated the 28th of March, 2011 and marked as Exhibit 8. The letter was addressed to the chairman Akpabuyo Local Government council. It was titled “Final Demand for unpaid debt of D’tito Company Nigeria on the construction of Nalda Road.”
Part of the letter reads:
“Our services have been retained by D’tito Company Nigeria (which is later referred to in this letter as our client) we have its instructions to write to you on the above subject matter.
Information made available to us by our client indicates that on December 11, 1997, your Council offered to our client a contract for the grading/chambering of NALDA Road, Ikot Eneyo, Akpabuyo LGA, worth N2,109,080.18 (Two Million, One Hundred and Nine Thousand and Eighty Naira, Eighteen Kobo). Our client accepted the offer and on December 12, 1997, a formal agreement was drawn up between both
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parties…..”
At page 1 of the Record of Appeal, it is clear that the Respondent as claimant at the trial Court commenced the suit leading to this appeal via a writ of summons dated and filed on 7th of February, 2013.
It is therefore mathematically correct to state that from 1997 when the contract was entered into by both parties in this Appeal and 2013 when the Respondent as claimant instituted the suit leading to this appeal is sixteen (16) years.
Section 16 of the Cross River State Limitation Law Chapter L 14 Laws of Cross River State, 2004 provides as follows:
“No action founded on contract, Tort or any other action not specifically provided for in Part I and II of this Law shall be brought after the expiration of 5 years from the date on which the cause of action accrued.”
It is obvious that the action leading to the present appeal was filed more than five years from the date on which the cause of action accrued. Learned counsel for the Respondent had argued that even his cause of action was statute barred, that his cause of action was revived by the directive of the former Governor of Cross River State pursuant to the report of
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Debt Verification Committee report in 2008.
This submission in my view is rather puerile, I say so in view of the fact that the cause of action of the Respondent was already caught up by the statute of Limitation as at 2008. If the Respondent’s cause of action was already statute barred in 2008, the report of the Debt Verification Committee in 2008 cannot revive the said cause of action as it was already dead before the Verification Committee commenced action since the cause of action arose since 1997 i.e. eleven years at the time the report of the Verification Committee was made. There is no doubt that the Respondent was owed by the Appellant, the issue is that having slept over its right the Respondent who had a cause of action lost its right to enforce that cause of action by judicial process because the period laid down and specified by law for instituting such an action had lapsed and no verification committee report as in this case can revive or bring it to life. That cause of action is dead in Law.
Once an action is statute barred, a Claimant’s action becomes barren, sterile and totally unenforceable and no Court has jurisdiction to entertain
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it.
Counsel for the Respondent also raised the issue that the Appellant did not plead it and did not make it an issue before the trial Court.
If a matter is statute barred, it goes to the jurisdiction of the Court to entertain the case. It also involves the ability of the Plaintiff to seek hearing in Court to ventilate his grievances. It therefore does not necessarily follow or imply that the defence must plead same in their statement of defence in order to raise this fundamental issue of jurisdiction. See N. B. N. LTD Vs. A. T. ENGR. CO. LTD (2006) 16 NWLR (pt. 1005) page 210 at 214.
Once a case is caught up by the Statute of Limitation by reason of a claimant sleeping over his right to institute an action, the matter becomes stale, it becomes unnecessary to wade into the conduct of such defendant which gave rise to the action. Once an action becomes barren and unenforceable, it automatically becomes null and void and therefore incapable of conferring jurisdiction on the Court. The issue of jurisdiction could therefore be raised at any time. The Court could even raise it suo motu.
The trial Court was therefore in error to have waded into
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the conduct of the defendant which gave rise to the action under the undefended list. This appeal therefore succeeds. Since the suit was statute barred, the order of the trial Court made on 27th of March, 2013 by S. M. ANJOR, J., of the Calabar Division of the High Court of Cross River State in favour of the Respondent in suit No. HCA/4/2013 was without jurisdiction. It was therefore null and void and accordingly struck out. I make no order as to costs.
Other Citations: (2016)LCN/8903(CA)
