HYDROTECH INTL. LTD & ANOR v. HON. A. G. AKWA IBOM STATE & ANOR (2020)

HYDROTECH INTL. LTD & ANOR v. HON. A. G. AKWA IBOM STATE & ANOR

(2020)LCN/14020(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/328/2018

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. HYDROTECH INTERNATIONAL LTD. 2. HYDRO-TECH NIG. LTD. APPELANT(S)

And

1. HON. ATTORNEY-GENERAL, AKWA IBOM STATE 2. AKWA IBOM STATE GOVERNMENT RESPONDENT(S)

RATIO

WHETHER OR NOT AN ACTION THAT IS STATUTE BARRED RAISED THE ISSUE OF JURISDICTION OF THE COURT CONCERNED

Whenever a defendant contends that the action of the plaintiff is statute barred, he is raising an issue of jurisdiction of the Court concerned on points of law because where an action is found to be statute barred it means that the Court has no jurisdiction to entertain it however meritorious the case may be. The success of that point of law takes away the right of action from the plaintiff leaving him with an empty unenforceable cause of action. See: SIFAX V. MIGFO (2018) 9 NWLR (PT. 1623) 138; OLAGUNJU & ANOR. V. PHCN PLC (2011) LPELR 2556 (SC); ADEKOYA V. FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT. 1099) 539; KOLO V. FBN PLC. (2003) 3 NWLR (PT. 886) 216. In WOHEREM V. EMEREUWA (2004) ALL FWLR (PT.221) 1157, the Apex Court per IGUH JSC held at page 1581 that:
“It cannot be disputed that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a Court action in assertion or protection of his legal right that has been breached.”
The period for the enforcement of a right of action expires or lapses on a date which a statute of limitation prescribes that no such legal action or proceedings may lawfully be commenced by an aggrieved party. In such a situation any action instituted after the expiration of the period prescribed by law is said to be statute barred given that time begins to run for the purpose of the limitation Law, from the date the cause of action accrued. See: SPDC LTD V. FARAH (1995) 3 NWLR (PT.382) 148; ASABORO V. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (PT.971) 595; OGUNKO V. SHELLE (2004) 6 NWLR (PT.868) 17.

WHETHER OR NOT JURISDICTION IS FUNDAMENTAL TO A SUIT

The position of the law on this is straight forward following the fact that jurisdiction being fundamental, cannot be treated lightly when raised in a case. See: NURTW & ANOR. V. RTEAN & ORS. (2012) LPELR – 7840 (SC). PER ONYEMENAM, J.C.A.

WHETHER OR NOT A STALE CLAIM IS UNFAIR TO A DEFENDANT

In addition to this requirement of public policy, the Law has also taken the view that a stale claim may not only be unfair to a defendant, it may wreak cruelty on him. The reason is simple: with the vagaries of events; the concatenation of avoidable and unavoidable circumstances and the sheer passage of time, such a defendant stands the chance of losing material pieces of evidence which, hitherto, formed part of the formidable arsenal in his defence.

Limitation statutes thus evolved to vouchsafe to such a defendant a statutory defence to such a stale action. That is why such an action is said to be statute barred. This formulation has an illustrious judicial ancestry, AREMO II V. ADEKANYE (2004) 42 WRN 1; OGBORU V. SPDC CO. NIG. LTD. (2005) 26 WRN 128.
It is however, important to note that what the statute bars is the action and not the cause of action. This important distinction is not often understood. Whereas, the cause of action refers to the facts or combination of facts which the plaintiff must adduce to be entitled to any relief, the action itself is the medium which affords him the opportunity to ventilate his bundle of facts, PATKUN INDUSTRIES LTD V. NIGER SHOES LTD (1988) 5 NWLR (PT. 93) 138. Put differently, a plaintiff’s right of action eventuates from the existence of a cause of action, IKINE V EDJERODE 12 KLR (PT. 131) 3711, 3724. PER ONYEMENAM, J.C.A.

WHETHER OR NOT THE COURT CAN RAISE A MATTER SUO MOTU

The law is trite that a Court should not take up a point suomotu and decide the matter before it on that point without hearing the parties. However, it is not every error committed by a trial Court that will lead to a reversal of its judgment by an appellate Court. An error that can warrant the reversal of the judgment of the trial Court must have substantially affected the decision. See: NCC V. MOTOPHONE LTD & ANOR (2019) LPELR – 47401 (SC); COOKEY V. FOMBO & ANOR (2005) LPELR-895(SC).

In the real sense of it, a Court can only be rightly accused of raising an issue suomotu if the issue did not exist in the litigation. Accordingly, a Court cannot be accused of raising an issue suomotu if the issue exists in the litigation. It is only natural that a Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong in such scenario to say that inferences legitimately drawn from facts in the case are introduced suomotu. See: AKEREDOLU V. ABRAHAM & ORS (2018) LPELR – 44067 (SC); IKENTA BEST (NIGERIA) LTD V ATTORNEY GENERAL RIVERS STATE (2008) 6 NWLR (PT. 1084) 642.
There is a great difference between a Court raising an issue suomotu and looking into processes in the file before it to resolve the issue; and the Court looking into processes in the file before it suomotu to resolve an issue raised by the parties. Whereas in respect of the former a Court raising an issue suomotu, must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the processes in the file before it to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it. A Court of law is eminently qualified and entitled to look at the content of its file or records and/or refer to it in consideration of any matter or issue before it. See: AKEREDOLU V. ABRAHAM & ORS (2018) LPELR – 44067 (SC); AGBAREH V. MIMRA (2008) ALL FWLR (PT 409) 559. PER ONYEMENAM, J.C.A.

WHETHER OR NOT A COURT THAT LACKS JURISDICTION TO HEAR A MATTER. HAS JURIDISTN TO MAKE AN ORDER ON ANY ISSUE ARISING THEREFROM

It is a basic principle of law that a Court which does not have jurisdiction to hear a matter does not have jurisdiction to make an order on any issue arising therefrom notwithstanding, the fact that a Court which is not a final Court in a matter is bound to decide all material issues. The only valid order a Court that lacks jurisdiction to hear a matter can make, is an order striking out the suit. The rationale is thus: Jurisdiction, it is settled, is fundamental to adjudication. It is a radical and crucial necessity for considering and pronouncing on issues before the Court. Accordingly, where a Court proceeds without jurisdiction to hear a case, the proceedings so embarked upon by the Court are a nullity ab initio, however well conducted, the proceedings and brilliantly decided the issues agitated therein are. Defect in the Court’s competence is intrinsic and not extrinsic to the entire adjudicatory process. Let me re-emphasize that a Court is only vested with jurisdiction and power to adjudicate on an issue when the matter is brought before it in accordance with both substantive and adjectival law. See: ONYEKWULUJE & ANOR. V. ANIMASHAUN (2019) LPELR- 46528 (SC); PDP & ORS V. EZEONWUKA & ANOR (2017) LPELR-43563 (SC); MADUKOLU V. NKEMDILIM (1962) SCNLR 341; UKWU V. BUNGE (1997) 8 NWLR (PT 678) 527. PER ONYEMENAM, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Akwa Ibom State, Uyo Judicial Division, by G. J. Abraham, C J., delivered on 19th February, 2018.

Brief facts of the case is that the 1st Appellant, on 29th December, 1982 entered into an agreement with the former Cross River State Government to construct Water Supply Schemes in various villages and towns in former Ikono, Itu, Ukanafun, Ikot Abasi, and Eket Local Government Areas in parts of the then Cross River State which are now located in the present Akwa Ibom State. As the project was in progress, Akwa Ibom State was created out of the former Cross River State by the Federal Military Government. Thereupon, the water supply scheme and its liabilities were assigned to Akwa Ibom State. The Appellants approached the Government of Akwa Ibom State (Respondents) to settle the debts owed the Appellants in the former Cross River State. The Respondents did not deny liability for the water schemes but asked for time to confirm the stages of the project executed by the Appellants so as to find out the actual amount of money due to the Appellants in order to settle the matter amicably.

Dissatisfied with the progress of the matter over the years, the Appellants initiated formal arbitration and appointed their own arbitrator in accordance with the contract agreement. Appellants further filed an application at the trial Court via a Motion filed on 31st July, 2006 praying the Court for:
“An Order appointing an Arbitrator for the Respondents in accordance with the written Agreement executed between the Appellants and the Respondents dated 29th day of December, 1982”.

The Respondents, together with their defence, filed a preliminary objection challenging the jurisdiction of the Court to hear the suit. The trial Court heard and determined the objection together with the substantive motion, upholding the objection and striking out the suit for lack of jurisdiction. Dissatisfied with the Ruling of the trial Court, the Appellants filed a Notice of Appeal on 15th May, 2018. The Respondents on the other hand, agreed with the Ruling of the trial Court but disagreed as to the date the cause of action arose. Consequently, with leave of Court, a Respondents’ Notice to Affirm was filed on 27th January, 2020.

The appeal was heard on 30th January, 2020. Parties adopted their briefs of argument. The Appellants brief and reply brief settled by Chijioke Nwankwo, Esq. were filed on 6th September, 2018 and 29th January, respectively. The Respondents’ brief was filed on 13th January, 2020 and settled by Uwemedimo Nwoko, Esq., the Hon. Attorney – General of Akwa Ibom State. Four issues were raised by the Appellants for the determination of this appeal, to wit:
1. Having regard to the circumstances of this case, was the trial High Court of Akwa Ibom State right when it held that the principles of waiver did not apply to procedural time limitation statutes;
2. Was the trial High Court of Akwa Ibom State right when it ignored Section 33(1) of the Limitation Laws of Akwa Ibom State 2000 and the express decisions of the Supreme Court to hold that the cause of action accrued on a date whereas the Respondents averred in their affidavit that they were still investigating the actual amount owed to the Appellants;
3. Was the trial High Court of Akwa Ibom State right when it decided that the cause of action accrued on

3/10/2000 suomotu without calling the parties to address it on the new issue of 3/10/2000 raised by the Court in its ruling;
4. Was the trial High Court of Akwa Ibom State right when it failed to deliver its decision on the application of the Applicants/Appellants for it to appoint an arbitrator for the Respondents who were unable to appoint one.

The Respondents also raised four issues for determination, viz:
(i) Considering the facts disclosed in the Affidavits filed by the Appellants in the lower Court, whether the case/action was statute barred.
(ii) Whether a party in taking any step in an action/case can be said to have waived his right in raising any issue as to statute bar.
(iii) Whether the trial Court in holding that the cause of action arose on 3/10/2000 can be said to have raised the issue suomotu so as to require his inviting parties to address him.
(iv) Considering the circumstances of the case, whether the trial Court was right to have refused to make further Order regarding the appointment of Arbitrator after it determined its jurisdiction.

The issues distilled by both parties cover the same field in their determination. It is my view that the issues as formulated by the Respondents are best framed for the determination of the dispute of the appeal. I shall therefore determine the appeal on the issues raised by the Respondents. However, the 1st and 2nd issues shall be resolved as one issue.

SUBMISSIONS ON ISSUE 1
(i) “Considering the facts disclosed in the Affidavits filed by the Appellants in the lower Court, whether the case/action was statute barred.
(ii) Whether a party in taking any step in an action/case can be said to have waived his right in raising any issue as to statute bar. “

Mr. Nwankwo submitted for the Appellants that the Respondents waived their right to raise the issue of statute of limitation having taken steps in the proceedings such as applying and being granted extension of time within which to appoint an arbitrator. That the trial Court was wrong to have ignored the decision in NDAYOKO V. DANTORO (2004) 3 NWLR (PT. 889)187. He argued that the matter was not caught by the provisions of Section 16 of the Limitation Law of Akwa Ibom State 2000, stating that the cause of action accrued on 20th June, 2006 when the

Appellants served on the Respondents, Notice to appoint an Arbitrator and the suit was filed on 31st July, 2006. He referred to Section 33(1) of the Limitation Law of Akwa Ibom State; NIGERIA PORTS PLC V. BEECHAM (2012)18 NWLR (PT. 1333) 482.

Mr.Nwoko, the learned Attorney-General representing the Respondents referred to EREGBOWA & ORS V. OBANOR & ORS (2010) LPELR 8964 @ 37-38 submitting that what the Court will look at in determining whether an action is statute barred or not, are the processes filed by the claimant so as to discern the time of accrual of cause of action and the time of instituting of the action. He proceeded to refer to authorities on the meaning of cause of action, arguing that the cause of action arose when the Respondents acknowledged their indebtedness to the Appellants in a letter dated 15th May, 1995 (Exhibit Hydro 7); and not in 2006 as claimed by the Appellants. He argued that Section 34 of the Limitation Law of Akwa Ibom State also applies to arbitrations. He contended that the Court could not have made an order to appoint an Arbitrator when it lacked the jurisdiction to entertain the said Application.

He referred to PDP & ORS V. EZEONWUKA & ANOR (2017) LPELR 42563 (SC). Further relying on some authorities like: AG ADAMAWA V. AG FEDERATION (2014)14 NWLR (PT 1428) 515; SPDC LTD V. MEBURU (2013) LPELR – 21889 (CA); Mr. Nwoko submitted that where a debt is acknowledged, the right of action accrues on that date and not before or after that date.

On the issue of waiver, learned counsel contended that the issue of statute of limitation is not that of procedural law but statutory law that cannot be waived no matter the steps taken by the parties in the action, same being an issue of jurisdiction which can be raised at any stage of the proceedings. He referred to an avalanche of authorities in that regard including FORESTRY RESEARCH INSTITUTE OF NIGERIA V. GOLD (2007)11 NWLR (PT 1044) P.1(SC); OLUFEAGBA & ORS V. ABDUR -RAHEEM & ORS(2009) LPELR – 2613 (SC). He urged the Court to resolve the issues in favour of the Respondents.

RESOLUTION OF ISSUE 1
Whenever a defendant contends that the action of the plaintiff is statute barred, he is raising an issue of jurisdiction of the Court concerned on points of law because where an action is found to be statute barred

it means that the Court has no jurisdiction to entertain it however meritorious the case may be. The success of that point of law takes away the right of action from the plaintiff leaving him with an empty unenforceable cause of action. See: SIFAX V. MIGFO (2018) 9 NWLR (PT. 1623) 138; OLAGUNJU & ANOR. V. PHCN PLC (2011) LPELR 2556 (SC); ADEKOYA V. FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT. 1099) 539; KOLO V. FBN PLC. (2003) 3 NWLR (PT. 886) 216.

In WOHEREM V. EMEREUWA (2004) ALL FWLR (PT.221) 1157, the Apex Court per IGUH JSC held at page 1581 that:
“It cannot be disputed that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a Court action in assertion or protection of his legal right that has been breached.”
The period for the enforcement of a right of action expires or lapses on a date which a statute of limitation prescribes that no such legal action or proceedings may lawfully be commenced by an aggrieved party. In such a situation any action instituted after the expiration of

the period prescribed by law is said to be statute barred given that time begins to run for the purpose of the limitation Law, from the date the cause of action accrued. See: SPDC LTD V. FARAH (1995) 3 NWLR (PT.382) 148; ASABORO V. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (PT.971) 595; OGUNKO V. SHELLE (2004) 6 NWLR (PT.868) 17.

It is also important to state that in order to ascertain the time when a cause of action accrued, for the purpose of a limitation law, the Courts only look at the writ of summons and the statement of claim which ordinarily ought to contain averments of facts as to when the wrong committed by the Defendant took place and compare it with the date when the writ of Summons was filed. See: AMUSAN V. OBIDEYI (2005) 14 NWLR (PT.945) 322; MILITARY ADMINISTRATOR EKITI STATE V. ALADEYELU (2007) 14 NWLR (PT.1055) 619.
The stirring issue here is, whether the Appellant’s action at the trial Court is statute barred. The relevant process before the trial Court that the Court has to fall back on in deciding whether the Appellants’ action was rightly declared statute barred by the learned trial Chief Judge is the Appellant’s

Affidavit in support of Motion on Notice filed 31st July, 2006 and in particular herein, their Amended Further Affidavit. This can be found at pages 3 and 4; and 280 to 292 of the record respectively.

By paragraphs 28 and 29 of the Amended Further Affidavit herein simply referred to as the “Affidavit”; the Appellant entered into a contract with the then Cross River State Government to construct water supply projects as per Exhibit Hydro 4 with Arbitration Clause dated 29th December, 1982. At paragraphs 34 – 38; the Appellant deposed to its Addendum Agreement Exhibit Hydro 6 which merely added some projects to the original Agreement –Exhibit Hydro 4. That consequent upon a Judicial Commission on Contract Review recommendation; the then Cross River State terminated Exhibit Hydro 4 and by Exhibit Hydro 10, invited the Appellants for a meeting to discuss the terms of agreement on the compensation of US$17.3 million recommended by the Judicial Commission on Contract Review to be paid to the Appellant in the event of cancellation of the contract dated 29th December, 1982 (Exhibit Hydro 4). See paragraphs 39 to 46 of the Affidavit.

The State Government unilaterally decided that the Appellant would be entitled to be paid US$9,799,488.00 for the work they had done which was communicated to them via Exhibit Hydro 13. The Appellants protested over the amount unilaterally fixed by the government to be paid to them whereupon the Ministry of Finance scheduled a meeting via Exhibit Hydro 14 with the Appellants to reach an agreement on what was due to the Appellants. However, before they could reach any agreement, Akwa Ibom State was created. See: paragraphs 47 to 55 of the Affidavit.

Upon sharing Assets and Liabilities, by letter dated 16th September, 1991 (Exhibit Hydro 15), the Appellants were informed that their indebtedness should be referred to Akwa Ibom State Government. Accordingly, the Appellants, based on the white paper, held series of meetings with the Respondents between 1991 and 1995. Resultantly, via Exhibit Hydro 16 following a meeting between the Appellants and the Akwa Ibom State Government, it was again unilaterally handed down by the Respondents that the indebtedness of the Appellants was as earlier given which is US$9,799,488.00 less N6.0 million previously paid to Appellants in 1987.

See paragraphs 59 – 66 of the Affidavit. The Appellants further deposed that on 20th September, 2000 their Representatives without authorization entered into a Memorandum of Understanding accepting the sum of US$8,364,939. 18, via Exhibit Hydro 17, as money due to the Appellants. Allegedly owing to the foregoing, on 3rd October, 2000, the parties reconvened and the MOU of 20th September, 2000 was withdrawn as per Exhibit Hydro 18. See paragraphs 67 – 71 of the Affidavit. At paragraph 72, the Appellants deposed thus:
“That in the said EXHIBIT HYDRO 18, it was stated by the representatives of the Government that the issue of indebtedness to the Applicants would be left with the Governor to state his position on the issue of the indebtedness to the Applicants after briefing by relevant Ministries, before any agreement is signed by the parties:
“ To give room for proper handling of the issue of indebtedness to Hydro Tech as per His Excellency the Governor’s earlier directives.”

It was the Appellant’s further deposition that at several other meetings the Appellants held with the Respondents thereafter, the

Respondents said they were still working out the actual amount to be paid to the Appellants. Owing to the Arbitration clause in the contract between the Appellants and Respondents, the Appellants appointed an Arbitrator but the Respondents refused to so appoint whereupon, the Appellants brought the action at the trial Court seeking an order of the Court appointing an Arbitrator for the Respondents. The Respondent filed a counter affidavit asking inter alia for extension of time for them to appoint their Arbitrator. However, before appointing any Arbitrator, the Respondents filed a preliminary objection contending that the Appellants’ action was statute barred.

The germane question here is when did the Appellant’s cause of action accrue? I have taken the pain to fully state the case of the Appellants from the start so we can appreciate easily when the set of facts sufficient to justify a right of the Appellants to sue the Respondents and enforce their right against the Respondents arose. Simply, from the narratives I gave of the depositions of the Appellant, when did the grounds such as the violation of right that entitled the Appellants to

bring a suit against the Respondents arise? From the facts of the case, an acceptable reason in law for the Appellants taking action against the Respondents was at the point where the Memorandum of Understanding, spelling out the debt owed the Appellants though contested, was withdrawn leaving the Respondents’ indebtedness to the Appellants at the Governor’s whimsical position. At this point, the indebtedness of the Respondents to the Appellants became so fluid that the Appellants had nothing to hold on to but to seek redress. In my view, this was when their cause of action accrued. This means that the cause of action accrued on 3rd October, 2000 and I so agree with the learned trial Chief Judge.
By Section 16 of the Limitation Law, CAP 78 Vol. 4, Laws of Akwa Ibom State, 2000, the Appellants were allowed by the law to bring their action within five years from the date in which their cause of action accrued. From the affidavit evidence, the Appellants filed their action on 31st July, 2006 while the cause of action as I have held accrued on 3rd October, 2000; meaning the Appellants brought their action outside the five years limitation law of Akwa

Ibom State. The effect of the limitation law is that the Appellants as in this case cannot bring their action in the Court of law to enforce the wrong done to them by the Respondents after five years. Accordingly, having held that the Appellants brought their action outside the period which their action could be maintained by virtue of the Limitation law of Akwa Ibom State, this voids the Appellant’s right to seek redress for the Respondents’ wrong, and the Appellants are regrettably but unavoidably left with a bare and unenforceable cause of action.
In all I agree with the learned trial Chief Judge, and hold that the Appellants’ action is statute barred and as such their cause of action unenforceable. Also, having held as found by the trial Court that the Appellants’ cause of action accrued on 3rd October, 2000; I dismiss the Respondents’ notice which contends otherwise.

The further contention of the Appellants is that the Respondents having taken steps in the action filed by the Appellants on 31st July, 2006 had waived their right to raise the statute barred limitation. The position of the law on this is straight forward

following the fact that jurisdiction being fundamental, cannot be treated lightly when raised in a case. See: NURTW & ANOR. V. RTEAN & ORS. (2012) LPELR – 7840 (SC). The Respondent herein raised the issue of the Court’s jurisdiction relying on Section 16 of the Limitation Law, CAP 78 Vol. 4, Laws of Akwa Ibom State, 2000 which provides thus:
“No action founded on contract, part or any other actions not specifically provided for in Parts 1 and 11 of this Law shall be brought at expiration of five years from the date in which the cause of action accrued.”
The Appellants contended that the Respondents having filed an application for extension of time within which to appoint an Arbitrator as a result of their motion on notice seeking the trial Court to appoint an Arbitrator for them, have waived their right to rely on the Akwa Ibom limitation law. I align with my learned brother Adah, JCA in ONNA TRADITIONAL RULERS COUNCIL & ORS. V. UMOREN & ORS.(2018) LPELR – 44301 (CA); to hold that this is a misconception of the law. The Statute of Limitation in question, is a law of the House of Assembly of a State which

requires that actions such as the present one must be commenced within five years from the date the cause of action accrued. The Apex Court clearly put forth the rationale behind Limitation Laws, when in ASABORO & ANOR V. PAN OCEAN OIL CORPORATION (NIG) LTD & ANOR (2017) LPELR – 41558 (SC); it stated Per C. C Nweze; that:
“The above Limitation Law, like all Limitation Statutes owe their evolution to considerations founded on public policy. First, there is the ancient principle which is now famous for its ubiquity. It is expressed in Latin: interest relpublicaeut sit finislitium – it is in the public interest that there should be an end to litigation.
In addition to this requirement of public policy, the Law has also taken the view that a stale claim may not only be unfair to a defendant, it may wreak cruelty on him. The reason is simple: with the vagaries of events; the concatenation of avoidable and unavoidable circumstances and the sheer passage of time, such a defendant stands the chance of losing material pieces of evidence which, hitherto, formed part of the formidable arsenal in his defence.

EGBE V. ADEFARASIN (1987) 1 NWLR (PT. 47) 1; EBOIGBE V. NNPC (1994) NWLR (PT. 347) 549. To be able, therefore, to enjoy the dividends which recourse to the judicial process affords, such a plaintiff must commence his action within the period stipulated by statute. In other words, it is a mandatory requirement, SIDI ALI V. TAKWA (2004) WRN 180. Thus, legal proceedings cannot be validly instituted after the expiration of the prescribed period, SANDA V. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT. 174) 374.
References had been made to Sections 4 (1) and 6 (2)of the above Limitation Law (applicable in Delta State at the material time). The clear effect of both sections is that, since the Appellants in this appeal [as plaintiffs] failed to invoke their right of action in time, they ran the risk of the extinction of such a right of enforcement; of entitlement to a judicial relief, A.C.B. PLC V. N. T. S (NIG.) LTD (2007) 1 NWLR (PT. 1016) 596, 637; IBRAHIM V. JSC KADUNA (1998) 12 KLR (PT. 73) 2489.”
In yet another Supreme Court decision, PDP & ORS V. EZEONWUKA & ANOR (2017) LPELR -43563 (SC); the Apex Court was explicitly clear that the issue

of jurisdiction, by whatever name, form or shade, may be raised and at any stage. The Court stressed that the principle of law further allows issue of jurisdiction to be raised viva voce and for the first time in an appellate Court. The rationale behind the principle lies in the fact that jurisdiction remains the fulcrum of any valid adjudication as without it, the entire proceedings of the Court, no matter how well conducted, is an exercise in futility being a total nullity. See: PDP & ORS V. EZEONWUKA & ANOR (2017) LPELR -43563 (SC); OMOKHAFE V. ESEKHOMO (1993) LPELR-2649 (SC); UKAEGBU V. UGOJI (1991) 6 NWLR (PT 196) 127; OMOMEJI & ORS V. KOLAWOLE & ORS (2008) LPELR-2650 (SC).
It follows from the above decision that Limitation Laws such as the one in the instant case cannot be waived on the stand point that parties cannot by themselves confer jurisdiction upon the Court when a statute has taken the jurisdiction away. It is important I note herein that moves for amicable settlement by parties do not in any way encroach on the fixed period set by a Limitation Law for the commencement of an action. Accordingly, the fact that the Respondents

were all the way seeking amicable settlement as it were does not amount to waiver of their right to raise the Statute of Limitation. Applicants must always be diligent when their action is time bound, and to commence the action even while they explore the options of amicable settlement. Let me add that Statements that only attempt to discourage a person from bringing a suit or mere negotiations looking toward an amicable settlement will not estop a defendant from invoking the statute of limitation.
From the foregoing therefore, the Appellants who in this case failed to bring their action within five years have lost their right of action although they still have unenforceable cause of action in their portfolio. For what I have said above, I resolve the issues in favour of the Respondents agreeing with the learned trial Chief Judge that the Appellants’ action was statute barred for which the trial Court lacked the jurisdiction to entertain.

SUBMISSIONS ON ISSUE 2
Relying on AYEMI EBAK IROM V. IREK OKIMBA [1998] 2 SCNJ 1, learned counsel for the Appellants submitted that the Court erred in law when it failed to invite the parties to address

it on the issue it raised suomotu in its ruling regarding the date the cause of action arose. He argued that by finding and ruling that the cause of action arose on 3rd October, 2000 which was away from the dates claimed by the Respondents, that the Court ought to have invited the parties to address it on the issue.

Reacting, Mr. Nwoko submitted that contrary to the Appellants’ argument, the trial Court in its Ruling did not raise any issue suomotu. That since the reasons for the trial Court’s decision were basically inferred from the case of the Appellant, it cannot be said to have raised the issue suomotu. He referred to: IKENTA BEST (NIGERIA) LTD V. ATTORNEY GENERAL RIVERS STATE (2008) 6 NWLR (PT. 1084) 642; AKEREDOLU V. ABRAHAM (2018)10 NWLR 1628 P. 510. In conclusion, he urged the Court to dismiss the appeal.

RESOLUTION OF ISSUE 2
The law is trite that a Court should not take up a point suomotu and decide the matter before it on that point without hearing the parties. However, it is not every error committed by a trial Court that will lead to a reversal of its judgment by an appellate Court. An error that can warrant the reversal of

the judgment of the trial Court must have substantially affected the decision. See: NCC V. MOTOPHONE LTD & ANOR (2019) LPELR – 47401 (SC); COOKEY V. FOMBO & ANOR (2005) LPELR-895(SC).

respect of the former a Court raising an issue suomotu, must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the processes in the file before it to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it. A Court of law is eminently qualified and entitled to look at the content of its file or records and/or refer to it in consideration of any matter or issue before it. See: AKEREDOLU V. ABRAHAM & ORS (2018) LPELR – 44067 (SC); AGBAREH V. MIMRA (2008) ALL FWLR (PT 409) 559.
At paragraphs 71 and 72 of the Appellants’ Amended Further Affidavit, the Appellants made depositions as to 3rd October, 2000. The facts deposed to in the affidavit by the Appellants as it relates to the said date, was not countered by the Respondents. While resolving issue 1, I considered extensively the date, 3rd October, 2000. It is apparent that the date 3rd October, 2000 was raised by the Appellants at the trial Court and facts thereon not challenged by the Respondents, so what the learned trial Chief Judge did was just to look at

the issue of 3rd October, 2000 raised in the Appellants’ affidavit evidence and to rely on the facts therein to reach his decision. I am of the firm view that the issue of 3rd October, 2000 date was without doubt, raised by the Appellants before the trial Court, so the only suo motu act of the trial Court was to look into its process in the file to reach a decision on the issue of the date of 3rd October, 2000; raised by the Appellants. I therefore hold that the trial Court did not raise the issue of 3rd October, 2000 date suo motu in which case the trial Court did not need to and did not fall into any error when it failed to invite the parties to address him on the said issue. I hereby resolve issue 2 in favour of the Respondents.

SUBMISSIONS ON ISSUE 3
Learned counsel for the Appellants submitted that the trial Court, as a Court of first instance, has a duty to decide on all issues raised before it, despite any preliminary objection. That this is geared towards saving time in the event that the appellate Court upturns the trial Court’s decision on the preliminary objection.

The Respondent’s counsel’s argument is that where the Court lacks the jurisdiction to entertain a case, it extends to its jurisdiction to make any order with regard to the case. That the trial Court in the instant case could not have entertained the Application to appoint an Arbitrator or make an order to appoint an Arbitrator having held that it had no jurisdiction. And that any order made by the Court without jurisdiction is a nullity. He referred to ODOFIN V. AGU (1992) NWLR (PT. 229) p. 350; NIDOCCO LTD V. GBAJABIAMILA (2013)14 NWLR 1374 P. 350; PDP & ORS V. EZEONWUKA & ANOR (2017) LPELR 42563 (SC).

RESOLUTION OF ISSUE 3
At the trial Court the learned trial Chief Judge held that he had no jurisdiction to hear and determine the suit as the action was statute barred. Based on this finding the trial Court did not go ahead to make order appointing an Arbitrator for the Respondents. The Appellants’ quarrel on this issue is that the trial Court was in error when it failed to make an order appointing an Arbitrator for the Appellants after reaching the conclusion that the action was statute barred.

UKWU V. BUNGE (1997) 8 NWLR (PT 678) 527. In the circumstance therefore, as the trial Court came to the conclusion that it had no jurisdiction to hear and determine the suit which decision I have held is correct, the trial Court was right when it failed to make order appointing an Arbitrator for the Respondents. I resolve the issue in favour of the Respondents.

Having resolved all the issues in favour of the Respondents, I declare the appeal is lacking in merits and the same is hereby dismissed. I affirm the decision of the High Court of Akwa Ibom State, Uyo Judicial Division, by G. J. Abraham, C J. delivered on 19th February, 2018 in Suit No. HU/MISC.187/2016.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading the draft judgment just delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA and I agree with the determination of the issues distilled for resolution in the appeal. I also agree with the final orders made therein the lead judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Onyemenam, JCA.

I agree with the reasoning and conclusion in the judgment.
I also dismiss the appeal and affirm the judgment of the Court below.

Appearances:

CHIJIOKE NWANKWO
For Appellant(s)

J. EKANEM, DCL with him, AGNES MANFRED, Asst. CSC, Ministry of Justice, Akwa Ibom State. For Respondent(s)