FROZEN FOODS (NIG) LTD & ORS v. ESTATE OF OBA JOHN AGBOLA OJOMO & ORS (2022)

FROZEN FOODS (NIG) LTD & ORS v. ESTATE OF OBA JOHN AGBOLA OJOMO & ORS

(2022)LCN/16352(CA)

In The Supreme Court

On Friday, April 08, 2022

SC.371/2010

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

John Inyang Okoro Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Between

1. FROZEN FOODS NIGERIA LIMITED 2. ALHAJI HANZAD AWOKOYA 3. SHUAIB MOHAMMED 4. SALIU OBATAYO AMODU 5. BIOLA AWE 6. HIRO KISHNANI APPELANT(S)

And

1. THE ESTATE OF OBA JOHN AGBOLA OJOMO 2. MRS. OLAJUMOKE ADEBIYI (NEE OJOMO) 3. OLORI AINA OJOMO 4. PRINCE ADETUNJI OJOMO 5. CHIEF THOMAS A. SENAIKE RESPONDENT(S)

RATIO:

THE POSITION OF ON THE ISSUE OF PRELIMINARY OBJECTION

The law is settled that where there is a preliminary objection, it is always neater to decide that objection first before embarking on considering the main case/appeal. It follows that where a preliminary objection challenging the competence of the entire appeal is found to be successful, it puts an end to the appeal in limine. See Odiase Vs. Agho (1972) 1 All NLR (Pt 1) 170, Fadiora Vs. Gbadebo (1978)3 SC219, Oloriode Vs Oyebi (1984) 1 SCNLR 390, Ndigwe vs. Nwude (1999) 11 NWLR (Pt. 626) 314. JOHN INYANG OKORO, J.S.C.

THE POSITION OF ON THE ISSUE OF PRELIMINARY OBJECTION

It has been settled in a long line of cases that where the objection is against some grounds of appeal but there exist some valid grounds which can sustain the appeal, the proper process to file is a motion on notice against the defective ground(s) and not a preliminary objection. A preliminary objection is employed where the entire appeal is incompetent. See Isah vs. INEC (2016) 18 NWLR (Pt.1544) P.175, B.O.I Limited Vs. Awojugbagbe Light Industries Limited (2018) 6 NWLR (Pt. 1615) P. 220. JOHN INYANG OKORO, J.S.C.

WHEN A LEAVE OF COURT IS REQUIRED FOR APPEAL

Section 233 (3) of the 1999 Constitution of the Federal Republic of Nigeria provides as follows:
“subject to the provision of Subsection (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or Supreme Court.”
Leave provided for in the above section of the Constitution is required where the grounds of appeal are based on facts or mixed law and facts. This would clothe the Supreme Court with Jurisdiction to hear such an appeal if and only if leave has been obtained. Where leave is not obtained the appeal is incompetent and liable to be struck out. See NNPC Vs. Famfa Oil Limited (2012) 17 NWLR (Pt. 1328) 148, Nwadike Vs. Ibekwe (1987) 4 NWLR (Pt. 67) 718, Obatoyinbo Vs. Oshatoba (1996) 5 NWLR (Pt 450) 531, Nwaolisah Vs. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600 and Osanyanbi Vs. Lasisi (2019) 17 NWLR (Pt. 1701) 217. JOHN INYANG OKORO, J.S.C.

PRINCIPLES GUIDING THE CLASSIFICATION OF GROUNDS OF APPEAL

..this issue of principles guiding the classification of grounds of appeal came up in the case of Ecobank (Nig) Limited Vs. Honeywell Flour Mills Plc (2019) 2 NWLR (Pt.1655) 55 which I was privileged to deliver the leading judgment. I shall in this case reproduce part of that judgment which I consider relevant to the classification as follows:
“In determining whether a ground of appeal raises question of law alone or of mixed law and facts, the Court is required to examine thoroughly the ground of appeal together with its particulars, in order to see whether the ground reveals a misunderstanding of the law by the lower Court or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law. Where the ground is such that would require questioning the evaluation of facts by the lower Court before the application of the law, that would amount to question of mixed-law and fact. A ground of appeal which raises facts, which needed to be determined either way, is aground of fact. For me, a ground of appeal, that a trial Court failed to consider the issues raised in the pleadings before it is certainly a complaint involving questions of law alone. A complaint in a ground of appeal in this Court of a failure of the Court of Appeal to discharge a judicial duty of considering and pronouncing on the issues raised before it, involve a question of law.”
See also Nwadike & Ors Vs. Ibekwe & Ors (1987) 4 NWLR (Pt 67) 718, Barbedos Ventures Limited Vs. F.B.N. PLC (2018) 4 NWLR (Pt. 1609) 241 at 284 – 285, Akinyemi Vs. Odu’a Investment Company Limited (2012) 17 NWLR (Pt 1329) 209, NNPC Vs. Famfa Oil Limited (2012) 17 NWLR (1328) 198. JOHN INYANG OKORO, J.S.C.

PRINCIPLES GUIDING THE CLASSIFICATION OF GROUNDS OF APPEAL

MEANING OF THE TERM CAUSE OF ACTION

For the purpose of litigation, the term cause of action has variously been held by this Court to refer to the fact or combination of facts which establish or give rise to a right of action and it consists of two elements:
(a) The wrongful act of the defendant which gives the Plaintiff cause of complaint, and
(b) The consequent damage.
It is the factual situation which gives a person a right to judicial relief. See Egbe Vs. Adefarasin (Supra), Rinco Construction Company Limited Vs Veepee Industries Limited (2005) 9 NWLR (Pt. 929) 85 at page 95 and Onuekwusi Vs. R.T.C.M.Z.C. (2011) 6 NWLR (Pt. 1243) 341 at 359 – 360. JOHN INYANG OKORO, J.S.C.

DISTINCTION BETWEEN A RIGHT OF ACTION AND A CAUSE OF ACTION

A cause of action is however distinguishable from a right of action which is the right to enforce the cause of action within the time allowed by law. What this means is that, although a Plaintiff may have a cause of action, his right to Judicial relief may be removed by the operative statute after the expiration of the prescribed period allowed for enforcing the cause of action or injury. It follows therefore that where the validity of a suit has been challenged on the ground that the cause of action has been caught up by the limitation law, the suit cannot validly be entertained same having been instituted after the expiration of the prescribed period. A limitation law removes the right of action of a Plaintiff, his right of enforcement and the right to Judicial relief, leaving him with a bare and empty cause of action, which he cannot enforce in any Court of law. See Military Administrator of Ekiti State Vs. Aladeyelu (2007) 14 NWLR (Pt. 1055) 619, Williams Vs. Williams (2008) 10 NWLR (Pt. 1095) 364, Okafor Vs. Bende Division Union Branch, 300, (2017) 5 NWLR (Pt 1559) 385 at 422. JOHN INYANG OKORO, J.S.C.

THE POSITION OF LAW ON ACTION THAT ARE STATUTE BARRED

The law is settled that in determining whether an action is statute barred, the only material to be considered by the Court is the writ of summons and the statement of claim. See Egbe vs. Adefarasin(No.2) (1987) 1 NWLR (47) 1 AT 20 G-H; RINCO Construction Co. Vs. Vee Pee Ind. Ltd (2005) 9 NWLR (929) 85. MARY UKAEGO PETER-ODILI, J.S.C.

JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Port-Harcourt Judicial Division, in appeal No. CA/PH/3/2008 delivered on the 14th day of July, 2009 allowing in part the appeal of these Respondents against the Ruling of the Federal High Court, Port-Harcourt Judicial Division, delivered on 22nd day of June, 2006 dismissing the preliminary objection to its jurisdiction.

The facts of the case which have now led to this appeal are that these Appellants, as plaintiffs, took out a writ of summons and statement of claim filed on 1st August, 2005 against the Respondents and claimed as follows:
(1) An order directing the Defendants to render account of all moneys, rents and benefit whatsoever from all the properties of the Plaintiff’s Company namely: – Complete Sardine Canning Plant, located in Trans- Continental Fisheries Complex, Oshodi Apapa Expressway, Lagos; All the Cold Room equipments for the 4,000 Ton Cold store including condensing units and evaporator at 57 Trans-Amadi Industrial Layout, Port-Harcourt, rents collected from all tenants in the Warehouses at Plot 57 Trans-Amadi Industrial Layout, Port-Harcourt and rent from tenants at 4 Bungalows at No. 8 Orominike Street, in Orominike Layout off Olu Obasanjo, Orominike Diobu, G.R.A Port-Harcourt, which they have received or are in their possession from 15th day of December, 1990 till Judgment is delivered.
(2) An order setting aside any appointment, removal and resignation of any Director made after 15th December, 1990 and before 6th May, 2004 as such appointment, removal and or resignation were made without proper procedure and consequently null and void.

Upon being served with the originating processes, the Respondents without filing their Statement of Defence, filed a Motion on Notice by way of preliminary objection on 20th October, 2005 wherein they challenged the jurisdiction of the trial Court to entertain the suit on the following grounds:
(i) This action is incompetent and this Honourable Court lacks jurisdiction to entertain the same
(ii) The plaintiffs claim as pleaded in the statement of claim discloses no cause of action
(iii) The plaintiffs claim is statute barred
(iv) This suit is frivolous, vexatious, oppressive and constitutes an abuse of Court process.

Learned counsel on both sides put in their respective arguments for and against the preliminary objection after which the learned trial Judge, in a considered ruling delivered on 22nd day of June, 2006, struck out grounds 1, 2 and 3 of the preliminary objection for offending Order 26 Rule 6(1) of the Federal High Court (Civil Procedure) Rules, 2000. The Court also dismissed the remaining ground 4 of the preliminary objection. The conclusion of that ruling reads as follows: –
“In the light of the foregoing, I hold that the application to strike out the suit on grounds that it discloses no cause of action and is statute barred is premature. The defendants having not filed their statement of defence on that ground, objections are struck out. In respect of the ground that this suit constitute an abuse, I hold that same fails and the said ground (iv) is dismissed. Defendant is ordered to file his statement of defence within 30 days from today.”

Aggrieved by the decision, these Respondents as defendants, lodged an appeal at the Court below and raised two issues for determination as follows:
(1) Whether the learned trial Judge was right in assuming jurisdiction to entertain the suit on the ground that it was premature to determine the issue of jurisdiction, the defendants/appellants having not filed their statement of defence.
(2) Whether the learned trial Judge was right in holding that the suit, subject matter of this appeal did not constitute an abuse of Court process.

As I earlier stated, the appeal to the Court of Appeal was allowed in part. The Court held that the action was statute barred even though the subject matter of the suit did not constitute an abuse of Court process. It is that decision by the Court below which has given rise to the instant appeal by the Appellants in their notice of appeal filed on 11th September, 2009 by their counsel R. C. Oriaku, Esq. From the three grounds of appeal raised in the said notice of appeal, learned counsel for the Appellants distilled three issues for determination in their Appellants Brief of Argument filed on 18th January, 2011 to wit:
(1) “Whether limitation of action is not a different/special specie of jurisdictional issue that can be raised successfully only upon satisfaction of conditions precedent.

(2) Whether the Court of Appeal could exercise its powers in Section 15 of the Court of Appeal Act, 2004 where the conditions necessary for invocation of such powers are absent.
(3) Whether the Court of Appeal was right to hold that the cause of action of the Appellants accrued on 15th December, 1990 and therefore statute barred, when the reliefs claimed by the Appellants were for rendering of accounts by directors and setting aside of improper appointments of directors made after 15th December, 1990.”

The Respondents, upon being served with the Appellants brief, filed their Respondents Brief of Argument endorsed by their counsel, Josephine Iheko, Esq., and filed on 9th day of April, 2013. Learned counsel nominated and argued a sole issue for determination as follows:
“Whether the Court of Appeal was right in resorting to the exercise of its power under Section 15 of the Court of Appeal Act 2009 to determine the substantive application and strike out the Appellant’s claim for being statute barred in all the circumstances of this case?”

Learned counsel for the Respondents also filed a notice of preliminary objection on 8th January, 2020 to regularize the objection already argued in their Respondents brief of argument challenging the competence of the three grounds nominated in the Appellants notice of appeal together with the three issues for determination distilled from those grounds of appeal.

In their response, learned counsel for the Appellants devoted their Appellants’ reply brief filed on 14th day of February, 2017 to respond to the argument made in the preliminary objection of the Respondents.

My Lords, before delving into the appeal, if need be, I shall first determine the preliminary objection raised by the Respondent as it aims to terminate the appeal in limine, if successful. The law is settled that where there is a preliminary objection, it is always neater to decide that objection first before embarking on considering the main case/appeal. It follows that where a preliminary objection challenging the competence of the entire appeal is found to be successful, it puts an end to the appeal in limine. See Odiase Vs. Agho (1972) 1 All NLR (Pt 1) 170, Fadiora Vs. Gbadebo (1978)3 SC219, Oloriode Vs Oyebi (1984) 1 SCNLR 390, Ndigwe vs. Nwude (1999) 11 NWLR (Pt. 626) 314.

That being said, learned counsel for the Respondents in the said notice of preliminary objection urged on this Court to strike out or dismiss the Appellants’ appeal for being defective and incompetent on the following grounds:
“(i) That the Appellants’ ground 3 (three in their Notice of Appeal filed by the Appellant as well as issue No. 3 argued in their Brief of Argument involve issues of fact or mixed law and facts in respect of which the Appellants cannot appeal as of right.
(ii) That no prior leave of the Court below or of this Honourable Court was sought and obtained by the Appellants for the filing of the said ground of appeal which involved issues of fact or of mixed law and facts.
(iii) That paragraph 2 of the Appellants Notice of Appeal gave a clear indication that they were appealing only against that part of the decision of the Court of Appeal striking out the claim on the finding that their claim was filed outside the limitation period and that the trial Court had no jurisdiction to entertain it. However, the Appellants’ ground 2 as well as issue No. 1 distilled therefrom sought to appeal generally against the decision of the Court of Appeal, and raised the questions and issues relating to other parts of the judgment not appealed against.
(iv) That all the 3 grounds of appeal and their particulars relied upon by the Appellant are argumentative, narrative and fail to disclose any reasonable grounds of appeal against the judgment of the lower Court.”

On the first ground of objection, learned counsel for the Respondent relied on the authorities of Kano Textile Vs. Gloede & Hoff Limited (2005) All FWRL (272) 254 at 259, Maigoro vs. Garba (1999) 10 NWLR (Pt. 624) 555 and Akiwiwu Motors Limited Vs Sangonuga (1984) 5 SC at 188 to submit that learned counsel for the Appellant failed to obtain leave in line with Section 233 (2) (a) of the 1999 Constitution before raising Ground 3 in the notice of appeal filed. Therefore, in the absence of leave, ground 3 which raises questions of fact and the Appellants’ issue 3 distilled therefrom are incompetent and should be struck out.

On the second ground of objection, learned counsel placed reliance on Anyaduba vs. N.R.T.C (1992)5 NWLR (Pt 243) 535 to contend that Ground 2 of the Notice of Appeal and issue 1 formulated therefrom are in violation of Order 8 Rule 2(1) of the Supreme Court Rules. That the Appellants having expressly indicated in paragraph 2 of their Notice of Appeal that the appeal is against that part of the decision of the Court of Appeal striking out their claim for being statute barred, could not thereafter appeal generally against the decision of the Court. That Appellants’ Ground 2 and issue 1 distilled therefrom do not relate to part of the decision specifically appealed against but raises questions pertaining to other parts of the decision not appealed against.

On the third leg of the objection, learned counsel contend that the Notice of Appeal is defective in that grounds 1 and 2 thereof are argumentative, narrative, verbose and disclose no reasonable ground of appeal. That issues 1 and 2 formulated from those grounds are incompetent. Counsel placed reliance on CBN Vs. Okojie (2002)8 NWLR (Pt. 768)48 and Khalil vs. Yar’adua (2003)16 NWLR (Pt. 847)446.

Learned counsel argued that the 3 Grounds of Appeal filed by the Appellants are incompetent and cannot sustain the appeal and liable to be struck out and/or dismissed.
On the first objection for failure to obtain leave, learned counsel for the Appellants submitted that Ground 3 of their Notice of Appeal raises solely question of law and not fact. That they do not require leave of Court to raise their Ground 3 and issue 3 in their brief of argument distilled therefrom.

On the second leg of the attack on the competency of their appeal, learned counsel for the Appellants submitted that the Appellants never lost track of the part of the decision they set to appeal against as painted by the Respondents. Counsel submitted that the Respondent made a sweeping attack on Grounds 2 of their Notice of Appeal and issue 1 distilled therefrom without pinning the Appellants to the particular aspect of Order 8 Rule 2(1) of the Supreme Court Rules that was offended.

Learned counsel submitted that all their 3 grounds of appeal and the issues distilled therefrom are all competent. Learned counsel submitted however, that assuming but without conceding that the Appellant’s grounds 1, 2 and 3 are in violation of Order 8 Rules 2(1), (3) and 4 of the Rules of this Court, that such is a mere irregularity that will not vitiate the appeal. That the Court has power under its rules to waive such non-compliance in the interest of Justice.

I have stated earlier in this judgment that preliminary objection must first be determined before the appeal is considered for the simple reason that if the preliminary objection succeeds, the appeal would no longer be heard.

This Court, per Eso, JSC., in the case of Ogbechie & Ors Vs. Onochie & Ors (1986) 2 NWLR (Pt. 23) 484 adopted the explanation given by authors of the Law Quarterly Review, Vol. 100 of 1984 as to what constitute grounds of law, mixed law and facts or of facts when the author explained the guides as follows: “(1) If the Tribunal purports to find that particular events occurred, although it is seized of no admissible evidence that the events did infact occur, it is a question of law. But where admissible evidence has been led, its assessment is entirely for the Tribunal, in other words, it is a question of fact.
(2) If the Tribunal approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, it is a question of law.
(3) If the Tribunal approaches the construction of a statutory word or phrase bearing an ordinary meaning on the erroneous basis that it is a legal term of art, it is a question of law.
(4) If the Tribunal, though correctly treating a statutory word or phrase as a legal term of art, errs in elucidation of the word or phrase, it is a question of law.
(5) If the Tribunal errs on its conclusion (that is, in applying the law to the facts) in a case where this process requires the skill of a trained lawyer, it is error of law.
(6) If in a case where a conclusion can as well be drawn by a layman (properly instructed on the law) as by a lawyer, the Tribunal reaches a conclusion which cannot reasonably be drawn from the facts as found in that event, the superior Court has no option but to assume that there has been some misconception of the law. But the issue may admit of more than one possible resolution. The inferior Tribunal’s conclusion may be one of the possible resolutions; yet it may be a conclusion which the superior Court (had it been seized of the issue) would not have reached. Nevertheless, the inferior tribunal does not err in law. The matter is one of degree, and a superior Court with Jurisdiction to correct only errors of law will not intervene.”
Further to the above, this issue of principles guiding the classification of grounds of appeal came up in the case of Ecobank (Nig) Limited Vs. Honeywell Flour Mills Plc (2019) 2 NWLR (Pt.1655) 55 which I was privileged to deliver the leading judgment. I shall in this case reproduce part of that judgment which I consider relevant to the classification as follows:
“In determining whether a ground of appeal raises question of law alone or of mixed law and facts, the Court is required to examine thoroughly the ground of appeal together with its particulars, in order to see whether the ground reveals a misunderstanding of the law by the lower Court or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law. Where the ground is such that would require questioning the evaluation of facts by the lower Court before the application of the law, that would amount to question of mixed-law and fact. A ground of appeal which raises facts, which needed to be determined either way, is aground of fact. For me, a ground of appeal, that a trial Court failed to consider the issues raised in the pleadings before it is certainly a complaint involving questions of law alone. A complaint in a ground of appeal in this Court of a failure of the Court of Appeal to discharge a judicial duty of considering and pronouncing on the issues raised before it, involve a question of law.”
See also Nwadike & Ors Vs. Ibekwe & Ors (1987) 4 NWLR (Pt 67) 718, Barbedos Ventures Limited Vs. F.B.N. PLC (2018) 4 NWLR (Pt. 1609) 241 at 284 – 285, Akinyemi Vs. Odu’a Investment Company Limited (2012) 17 NWLR (Pt 1329) 209, NNPC Vs. Famfa Oil Limited (2012) 17 NWLR (1328) 198. Permit me to add that a ground of appeal that raises issue of jurisdiction is a ground of law. See Lovleen Toys Industries Limited Vs. Komolafe (2013) 14 NWLR (Pt. 1375) 542.

Now, the ground of appeal complained about, in the first limb of the objection, without its particulars is as follows:
“Ground Three
The Court of Appeal erred in law when it held that the cause of action accrued on the date when the existing directors were allegedly removed and replaced by the applicants. The writ of summons and statement of claim were filed on the 1st day of August, 2005 well outside the five-year limitation period prescribed by Section 16 of the Limitation Law.”

Applying the principles laid out above, ground 3 complained about the decision of the Court of Appeal that the cause of action in this matter arose on 15th December, 1990 thereby in the light of Section 16 of the Limitation Law, the Appellants were barred from exercising their right of action in a suit commenced on 1st August, 2005, about fifteen years after. It questions the evaluation of facts by the Court below before application of the law. It is a ground of mixed-law and fact which requires leave before it can be successfully raised and argued. Appellants’ failure to obtain leave before arguing the said ground 3 renders the ground incompetent and issue 3 distilled therefrom, invalid. Both ground 3 and issue three distilled therefrom are hereby struck out.

The second and third objections complain of mere irregularities which are waivable in the interest of Justice. I so hold. This is a Court of Justice and equity and it is its duty to ensure that substantial Justice is done at all times between parties. See Bello Vs. Attorney-General., Oyo State (1986) 5 NWLR (Pt.45) 828, Ogunbi Vs. Kosoko (1991) 8 NWLR (Pt. 210) 511; Panache Communications Limited Vs. Aikhomu (1994) 2 NWLR (Pt. 327) 420; Osayanbi Vs. Lasisi (2019) 17 NWLR (Pt. 1701) 217.

Having struck out Appellants’ ground 3 together with the invalid issue 3 nominated therefrom, I shall proceed to determine this appeal on the basis of the sole issue formulated by the Respondents, same being precise and squarely addresses the issue in contention between the parties. I have earlier reproduced the issue elsewhere in this Judgment, howbeit, at the risk of repetition I shall restate it as follows:
“Whether the Court of Appeal was right in resorting to the exercise of its powers under Section 15 of the Court of Appeal Act 2004 to determine the claim for being statute barred in all the circumstances of this case.”

In arguing this issue, learned counsel for the Appellants submitted that although Section 15 of the Court of Appeal Act broadly confers power on the Court of Appeal to make orders in the interest of Justice, those powers so ascribed by the Act are however not at large. Counsel relies on the case of Obi Vs. INEC (2007) 11 NWLR (Pt 1046) 565 at 639-640 to outline the conditions to be satisfied before the Court of Appeal would exercise its powers under the section as follows:
(a) The lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it.
(b) The real issue raised by the claim of the Appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal.
(c) All necessary materials must be available to the Court for consideration.
(d) The need for expeditious disposal of the case or suit to meet the ends of Justice must be apparent on the face of the materials presented; and
(e) The injustice or hardship that will follow if the case is remitted to the Court below clearly, manifest itself.

Learned counsel contends that in this case, except for the first condition, all other conditions listed above were absent when the Court of Appeal invoked its powers under Section 15 of the Court of Appeal Act, 2004 to determine the matter instead of remitting it back to the trial Court.

Counsel submitted that the learned trial Judge was properly guided to have struck out the Respondents’ preliminary objection on the ground that they ought to have filed their statement of defence and therein raise the issue of limitation law in accordance with the mandatory provision of Order 26 Rule 6(1) Federal High Court (Civil Procedure), 2000. Counsel contends therefore that the Court below ought to have confined itself to the issue whether the Respondents’ preliminary objection at the trial Court was premature or not, and thereafter remit the case back to the trial Court for determination.

On the Respondents part, learned counsel for the Respondents submitted that contrary to the Appellants’ contention, all the requirements of the law for the invocation and exercise of the powers of the Court below under Section 15 of the Court of Appeal Act were duly fulfilled when in ground 2 of their notice of appeal to that Court they put the issue of statute bar squarely before that Court.

My Lords, the main question begging for answer in this appeal is, whether the suit was proper before the trial Court to clothe that Court with Jurisdiction to entertain it. The issue of jurisdiction has been well settled to be very fundamental and critical to the determination of suits in our Courts. It can be raised at any stage of the proceedings in either the trial Court, Court of Appeal and in this Court by the parties or suo motu by the Court itself. And whenever the issue of Jurisdiction is raised, the Court has a duty to determine it first before going into the merit of the case. This is because any proceedings conducted or decision taken without jurisdiction is an exercise in futility. See Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341, Oloriode Vs. Oyebi (1984) 1 SCNLR 390; Oloba Vs. Akereja (1988) 3 NWLR (Pt. 84), Kotoye Vs. Saraki (1994) 7 NWLR (Pt. 357) 414, Ikine Vs. Edjerode (2001) 18 NWLR (Pt. 745) 446.

Returning to the preliminary objection filed against the determination of the suit at the trial Court, these Respondents raised the issue that the trial Court lacked the jurisdiction to entertain the suit in view of the fact that the action was statute barred. It has become trite that an objection to the jurisdiction of the Court to entertain a matter is certainly not an ordinary point of law contemplated under the rules of Court. See Elabanjo Vs. Dawodu (2006) 15 NWLR (Pt. 1001) 76 at 15.
What the Court is enjoined to do to ascertain when the cause of action arose so as to determine whether the action is statute barred or not, is to look at the originating processes filed by the Plaintiff which include the writ of summons and averments in the statement of claim to ascertain therefrom when the wrong giving rise to the enforceable claim was allegedly committed; and thereafter comparing it with the date on which the suit was initiated. If the period of persistence of the wrong from the date of accrual thereof exceeds the period of limitation as provided by the statute, then the suit is statute barred. See Egbe Vs. Adefarasin (No.2) (1987) 1 NWLR (Pt. 47) 1.

In the instant case, the Appellants initiated the suit on 1st August, 2005 against these Respondents who they allege to have been unlawfully appointed as Directors of the 1st Appellant by the late Chairman, Board of Directors, of the Company since 15th December, 1990. The Appellants sought for an order directing the Respondents to render accounts of the management of the assets of the company in their possession and also an order setting aside the appointment of the Respondents as directors as well as restoring persons who were directors before 15th December, 1990 when the Respondents allegedly took over the Management of the Company.

The Court of Appeal in determining when the cause of action accrued held on page 192 of the record as follows:
“It is clear from the above paragraphs that the cause of action is the alleged takeover of the management and control of the 1st Plaintiff by the applicants from 15th December, 1990. It is the respondents’ contention that the applicant have received rents from or have been in possession of various properties of the 1st Plaintiff since 15th December, 1990 without rendering accounts in respect thereof It is also their contention that any appointment, removal and/or resignation of any director made after 15th December, 1990 and before 6th May, 2004 is null and void. In otherwords, any act done by the Appellants regarding the Management and control of the Company between 15th December, 1990 and 6th May, 2004 is null and void. As can be seen from the underlined portions of the pleadings, the touchstone for each and every complaint is 15th December, 1990. The cause of action accrued on that date when the existing directors were allegedly removed and replaced by the applicants. The writ of summons and statement of claim were filed on 1st day of August, 2005 well outside five-year limitation period prescribed by Section 16 of the Limitation Law. The argument that there is continuing damage giving rise to a fresh cause of action for as long as the applicants fail to render accounts is untenable in the present circumstances. There is nothing in the statement of claim to warrant such inference.”

It is the Appellants’ discontent with the above finding that has given rise to this appeal wherein they contend that continuance of injury subsists from the persistent failure to render account which action vitiates the initial accrual of cause of action on 15th December, 1990 to give rise to fresh cause of action.

Section 16 of the Limitation Law Cap 80 Laws of Rivers State, 2004 provides that:
“No action founded on contract, tort or any other action not specifically provided for in parts I and II of this law shall be brought after the expiration of five years from the date on which the cause of action accrued.”

Now, to determine what the cause of action at the trial Court was and when it accrued, a calm perusal of the writ of summons and the averments in the statement of claim on pages 1 to 10 of the record clearly show that the Appellants’ complaint was against the alleged illegal takeover of the management of the 1st Appellant between 15th December, 1990 and 6th May, 2004 and their refusal to hold Board of Directors meeting during that period for the purpose of rendering account for monies collected on management of company’s assets. Indeed, paragraphs 20, 22, 23, 32 and 33 thereof are reproduced hereunder as follows:
20. The Plaintiffs aver that late H.R.H Oba S. A Ojomo surreptitiously removed and or deleted all the names of the existing Directors as at 15th December, 1990 and substituted same with the names of his siblings and family members namely – Prince Adetunji Ojomo, Mrs. Olajumoke Adebiyi, Olori Aina Ojomo and Chief T. A. Senaike
22. The Plaintiffs aver that H.R.H Oba J. A. Ojomo and his siblings solely and exclusively took over the management of all the 1st Plaintiff Company’s properties real and personal since 15th December, 1990 till date rendering no account to any Director or Shareholder of the Company.
23. The Plaintiff aver that H.R.H Oba J. A. Ojoma ignored all Protests and calls for meetings of the Board of Directors and resorted to threats against the individual Directors who protested.
32. The Plaintiffs aver that the purported appointment of the self-style Board of Directors by late H.R.H Oba J. A Ojomo and his children at any time between 15th December, 990 and 6th May, 2004 were made irregularly and consequently null and void for reason of lack of any interest on consideration by any of those appointed, and or notice to the Directors and Shareholders of 1st Plaintiff Company.
33. The Plaintiff avers that the authentic Board of Director of the 1st Plaintiff Company was, and still is, the one appointed on 6th May, 2004 which meeting was attended by shareholders of the 1st Plaintiff Company.

It is obvious from the above that the rallying point in the Appellants’ claim at the trial Court was the management takeover of the 1st Appellant on 5th December, 1990 by the Respondents who are family members of Oba J. A. Ojomo, the late Chairman of the 1st Appellant. In view of the provision of Section 16 of the Limitation Law of Rivers State, 2004, this suit which was commenced on 1st August, 2005, was statute barred.

It is now beyond argument that issue of limitation of action is an issue of jurisdiction which goes to the root of the matter. Objection in that regard ought to be taken at the earliest opportunity as was done in the instant case before any other step in the proceeding is taken because if there is no jurisdiction, the entire proceeding would be a nullity no matter how well conducted.
The learned trial Court was wrong to have ruled against determining the Respondents’ preliminary objection. In fact, the Court had no business continuing with the proceedings without first determining whether the suit was proper before him or not. The Court of Appeal was therefore in order to have invoked its powers under Section 15 of the Court of Appeal Act to strike out the suit, the Appellants’ right of enforcement having been extinguished. In the circumstance, I find substance in the sole issue for determination in this appeal. Same is hereby resolved in favour of the Respondents and against the Appellants.

Having resolved the sole issue for determination against the Appellants, I hold that this appeal is devoid of merit. It is hereby dismissed. The judgment of the Court of Appeal delivered on 14th July, 2009 is hereby affirmed. Parties shall bear their respective costs.
Appeal dismissed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in agreement with the judgment just delivered by John Inyang Okoro JSC and to register the support, I have in the reasonings from which the decision emanated, I shall make some comments.

This appeal is against a specific part of the decision of the Court of Appeal, Port Harcourt Division, or Court below or lower Court, delivered on the 4th day of July, 2009, Coram: T. Abdullahi JCA, K.M.O. Kekere-Ekun and E. Eko JJCA (as they then were).

Which lower Court upheld the respondents challenge to the trial Court’s jurisdiction and so overruled the contrary decision of the Federal High Court, Port Harcourt per R.O. Nwodo J and the Court below accordingly struck out the appellants’ claim from being statute barred.

FACTS
By a writ of summons and Statement of Claim dated and filed on the 1st day of August, 2005 (which is contained in pages 1 to 10 of the Records) the Appellants (as Plaintiffs at the trial Court) sought against the Respondents (as Defendants at the trial Court) the following reliefs, namely:
“1. An order directing the Defendants to render account of all moneys, rents and benefit whatsoever from all the properties of the Plaintiff’s Company namely:- Compete Sardine Canning Plant, locate in Trans- Continental Fisheries Complex, Oshodi Apapa Expressway, Lagos, All the Cold Room equipment’s for the 4,000 – ton Cold store including condensing units and evaporator at 57 Trans-Amadi Industrial Layout, Port Harcourt, Two Heavy duty Generator sets at Port Harcourt, Rents collected from all tenants in the ware Houses at Plot 57 Trans-Amadi Industrial Layout, Port Harcourt and Rent from Tenants at 4 Bungalows at No.8 Orominike Street, In Orominike Layout off Olu Obasanjo Orominike Diobu, G.R.A Port Harcourt, which they have received or are in their possession from 15th day of December, 1990 till judgment is delivered in this suit
2. An order setting aside any appointment, removal and resignation of any Director made after 15th December, 1990 and before 6th May, 2004 as such appointment, removal and or resignation were made without proper procedure and consequently null and void.”

Upon service of the processes on the Respondents, they filed a Motion on Notice on the 20th day of October, 2005 wherein they challenged the jurisdiction of the Court and sought to have the suit struck out on grounds that the claim was statute barred, disclosed no cause of action and constitutes an abuse of Court process. The Appellants opposed the said Motion on Notice and by order of the Court, written arguments were filed and exchanged by both parties which were adopted before the Court on 25th April, 2006. In a considered ruling delivered on the 22nd day of June 2006, the trial Court refused the application and struck it out holding that it was premature to raise the issue of limitation law or statute bar without first filing a statement of defence pursuant to Order 26 Rule 6(1) of the Federal High Court (Civil Procedure) Rules 2000.

Being dissatisfied with the decision of the learned trial Court, the Respondents appealed to the Court of Appeal by a Notice of Appeal filed on the 6th day of July, 2006. In compliance with the Rules of the Court of Appeal, the parties exchanged written briefs of argument which were respectively adopted before the Court on the 8th day of June, 2009. In a judgment delivered on the 14th day of July, 2009, the Court of Appeal allowed the appeal in part holding that the issue of limitation of action or statute bar, being an issue that affects the jurisdiction of the Court, could be raised at any stage of the proceedings and was not prematurely raised in this case. The Court then proceeded, pursuant to its powers under Section 15 of the Court of Appeal Act, 2004 to consider the merits of the application based on the written addresses of the parties already before it and came to the conclusion that the claim was indeed statute barred and thereupon struck it out.

The Appellants have now appealed to this Court only against that part of the decision of the Court of Appeal relating to the exercise of its powers under Section 15 of the Court of Appeal Act.

On the 11/1/2022 date of hearing, learned Senior Advocate, Okey Wali adopted the brief of argument of the appellants filed on 18/1/2011 and deemed filed on 13/2/2013 and a reply brief filed on 12/4/2017. The appellants distilled three issues for determination, viz:-

1. WHETHER LIMITATION OF ACTION IS NOT A DIFFERENT/SPECIAL SPECIE OF JURISDICTIONAL ISSUE THAT CAN BE RAISED SUCCESSFULLY ONLY UPON SATISFACTION OF CONDITIONS PRECEDENT.
2. WHETHER THE COURT OF APPEAL COULD EXERCISE ITS POWERS IN SECTION 15 OF THE COURT OF APPEAL ACT, 2004 WHERE THE CONDITIONS NECESSARY FOR INVOCATION OF SUCH POWERS ARE ABSENT.
3. WHETHER THE COURT OF APPEAL WAS RIGHT TO HOLD THAT THE CAUSE OF ACTION OF THE APPELLANT ACCRUED ON 15/12/1990 AND THEREFORE STATUTE BARRED, WHEN THE RELIEFS CLAIMED BY THE APPELLANTS WERE FOR RENDERING OF ACCOUNTS BY DIRECTORS AND SETTING ASIDE OF IMPROPER APPOINTMENTS OF DIRECTOR MADE AFTER 15/2/1990.

Learned counsel for the respondents, Mark S. Agwu Esq., adopted the brief of argument filed on 9/4/2013 and in it raised a single issue for determination which is as follows:-
“Whether the Court of appeal was right in resorting to the exercise of its powers under Section 15 of the Court of Appeal Act 2004 to determine the substantive application and strike out the appellants’ claim for being barred in all the circumstances of this case.”

This lone issue of the respondents seems to me adequate in the determination of this appeal and I shall make use of it.

SINGLE ISSUE
Whether the Court of appeal was right in resorting to the exercise of its powers under Section 15 of the Court of Appeal Act 2004 to determine the substantive application and strike out the appellants’ claim for being barred in all the circumstances of this case.

It was contended by the learned Silk for the appellants that the limitation of action, as a jurisdictional issue and defence is one of the few issues of law that has been provided with a special procedure by which it could be raised that a party who is claiming that the action of a plaintiff is statute barred, is mandated to specially state so in his statement of defence and state the statutory provisions which the objector relies on. He cited Order 26 Rule 6(1) of the Federal High Court (Civil Procedure) Rules, 2000.

That the fact that a point of law which touches the jurisdiction of a Court is to be raised in observance of a particular procedure does not mean that a party’s right to attack or question the jurisdiction of the Court is frittered away.

That by observing the rules of a Court in bringing an application before that same Court, does not obliterate the inherent constitutional jurisdiction of the Court to hear an application or matter at the Court of Appeal. He cited Mobil Prod. (Nig) Unlimited v LASEPA (2002) 18 NWLR (pt.789) 1 at 33, N.S.I.T.F.M.B v KLIFCO Nig. Ltd (2010) 13 NWLR (pt. 1211)307 at 335 etc.

For the appellants, it was submitted that the provisions of Section 15 of the Court of Appeal Act 2004 confers legal powers on the Court of Appeal to make any order which the Court below it could make in the interest of justice even though there are conditions before the application of that provision. He cited Obi v INEC (2007) 11 NWLR (pt.1046) 565 at 639-640.

That those conditions were not present before the Court below applied its powers under Section 15 of the Court of Appeal Act.

Okey Wali SAN contended that the two Courts below erred in holding that the appellants’ cause of action accrued on 15/12/1990 and so the action was statute barred. That the illegal control and activities of the respondents run from 1990 to 2005 in a continuous occurrence that never stopped and damage never ceased when the appellants instituted the action and so the appellants were well within time to bring this action. He referred to Aremo II v Adekanye (2004) 13 NWLR (pt.891) 572.

Mark S. Agwu of counsel for the respondents contended that the conditionalities for the application of Section 15 of the Court of Appeal Act were present when the Court below applied that statutory provision.

That from the pleading of the appellants, the cause of action was the alleged wrongful takeover of the management of all the 1st appellant’s properties sometime on the 15th December, 1990 without rendering any account and so the institution of the action on the 1st August, 2005 was about 15 years outside the limitation period. He cited Gulf Oil Ltd v Oluba (2002) 12 NWLR (pt. 780) 92 at 112- 113, Sanda v Kukawa Local Govt (1991) 2 NWLR (pt. 174) 379 at 391 etc.

For the respondents, it was submitted that the issue of limitation law or statute bar is a jurisdictional issue which can be raised at any time even before filing of the defendants’ pleadings and be heard and determined first before any further proceedings are taken in the matter. He cited Elebanjo v Dawodu (2006) 15 NWLR (pt. 1001) 76 at 115 etc.

RESOLUTION OF THE ISSUE
The appellants’ angle of contention is that under the Nigeria Company Law and Practice, directors of a company are in fiduciary relationship towards the company, sequel to Section 279 of the companies and Allied Matters Act, 2004 and shall assume utmost good faith towards the company in any transaction with it or on its behalf. Also by virtue of Section 283(1) and 286 (3)(a), directors are under obligation to render accounts at anytime to the company.

That within the contemplation of the Companies and Allied Matters Acts, 2004, there is no time frame within which the company could do this. See Section 279 (9) of the Act. I shall quote the Limitation Law of Rivers State, Section 16 which reads thus:
“No action founded on contract, tort or any other action not specifically provided for in Parts I and II of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.”

The appellants therefore contend that it cannot be applicable to the maintenance of action on intra company affairs (between company and its officers) bordering on statutory duties of directors of a company as enshrined in a Companies and Allied Matters Acts, 2004. See Sections 279, 282 and 283 of the Act. In the instant case, the gamut of the Appellants’ case at the trial Court is to ensure the purported directors render account to the 1st appellant company, of all their transactions with the 1st appellant properties and to also redress or set aside the improper appointment, removal and resignation of any director made without proper procedure made after 15th December, 1990 and before 6th May, 2004.

The reliefs the appellants sought at the trial Court were thus:
1. An order directing the Defendants to render accounts of all monies, rents and benefits whatsoever from all the properties of the Plaintiff’s company namely – Complete sardine canning plant, located in Trans-continental Fisheries complex, Oshodi, Apapa Expressway, Lagos, all the cold room equipment’s for the 4,000 – Ton Cold store including condensing units and Evaporator at 57 Trans-Amadi Industrial Layout, Port Harcourt and Rent from Tenants at 4 Bungalows at No.8 Orominike Street, in Orominike Layout, Off Olu Obasanjo, Orominike Diobu, G.R.A., Port Harcourt, which they have received or are in possession from 15th day of December, 1990 till judgment is delivered in this suit.
2. An order setting aside any appointment, removal and resignation of any director made after 15th December, 1990 and before 6th May, 2004 as such appointment, removal and or resignation were made without proper procedure and consequently null and void.

The appellants state that these are all intra company affairs bordering on issues provided by the Companies and Allied Matters Acts, 2004. Limitation Law of Rivers State does not apply to the action of the appellants. That by the nature of the relief clauses of the appellants in their statement of claim, the limitation law of Rivers State is inapplicable and therefore the action is not statute barred.

The opposing stance of the respondents who were appellants at the Court below was that the learned trial judge erred in taking the view and came to the conclusion that the issue of statute of limitation or statute bar raised by them was premature and cannot be properly raised unless and until they had filed their statement of defence wherein such an issue would be specifically pleaded pursuant to Order 26 Rule 6 (1) of the Federal High Court (Civil Procedure) Rules 2000. After hearing argument of the parties and considering their respective briefs of argument, the Court of Appeal found merit in the appeal which it upheld in part and overruled the learned trial Court. The Court then held at page 186 of the Records thus:
“I have held in the course of resolving the first issue in this appeal that the issue of limitation of action, being an issue that affects the jurisdiction of the Court, could be raised at any stage of the proceedings. Having raised it as a preliminary issue, and argued same in their respective written addresses, the learned trial Judge ought to have made a finding on the issue one way or the other. The law is settled that in determining whether an action is statute barred, the only material to be considered by the Court is the writ of summons and the statement of claim. See Egbe vs. Adefarasin(No.2) (1987) 1 NWLR (47) 1 AT 20 G-H; RINCO Construction Co. Vs. Vee Pee Ind. Ltd (2005) 9 NWLR (929) 85. The writ of summons and statement of claim are at pages 1-10 of the record. The written address of the applicants (appellants herein) is at pages 66-72 of the record. The reply of the respondents (respondents herein) is at pages 73-81 while the applicants’ reply on point of law is at pages 90- 94 of the record. I am of the respectful view that in order to avoid the delay, expense and inconvenience that will be occasioned by an order remitting the suit back to the lower Court for the issue to be determined by another Judge of that Court, this Court by virtue of Section 15 of the Court of Appeal Act, 2004, is in as good a position as the trial Court to determine whether the suit is statute barred. See Narumal & Sons (Nig) Ltd Vs. Niger Benue Transport Co. Ltd (1989) 2 NWLR (106) 730 at 742, S.P.D.C (Nig) Ltd v Pere Cole & Ors (1978) 2 SC 183, Ushae v C.O.P (2005) 2 NWLR (937) 499 at 535 D-E.”

That Court below then came to the conclusion as follows:-
“I therefore hold that the respondents’ claim in suit No. FHC/PH/CS/594/2005 filed outside the period of limitation prescribed in the Limitation Law of Rivers State 2004 is statute barred and the lower Court has no jurisdiction to entertain it.
In conclusion, the appeal succeeds in part. Suit No. FHC/PH/CS/594/2005 before the Federal High Court, Port Harcourt Division is hereby struck out for being statute barred. The parties shall bear their respective costs in this appeal.”
(see page 193 of the Records)

It is this finding and conclusion that the Appellants are unhappy with principally on the grounds, as can be gleaned from their arguments under their issues no. 2 at pages 9 to 11 of their brief, that the Court of Appeal was not entitled to resort to the exercise of its powers under Section 15 of the Court of Appeal Act unless certain conditions were fulfilled and that those said conditions had not been fulfilled in the instant case. They relied on the case of Obi vs. INEC (supra) and on that basis, they want the decision set aside and the matter remitted back to the trial Court for hearing.

My answer is simply that Appellants’ contentions are erroneous and misconceived in law. In the case of Obi vs. INEC (2007) 11 NWLR (Pt.1046) 565 at 639 this Court per Adeyemi JSC held that the purpose of Section 15 of the Court of Appeal Act is to obviate delayed justice and that the conditionalities required before the exercise of those powers include the following, namely:

(1) The lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it.
(2) The real issue raised up by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal.
(3) All necessary materials must be available to the Court for consideration.
(4) The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and
(5) The injustice or hardship that will if the case is remitted to the Court below; must be clearly manifest itself.

One is minded to point out that contrary to the contentions of the Appellants, all the above conditionalities were present and duly satisfied in the instant case before the Court below proceeded to invoke its powers under Section 15 of the Court of Appeal Act to resolve the matter in this case. There can be no dispute that the issue of whether or not the Appellants’ claim was statute barred was clearly raised by the Respondents before the trial Court which had the legal power to adjudicate on the matter but which erroneously took the view that the issue was premature before it. Thus, condition (1) above is clearly met in this case as the trial Court clearly had the powers to hear and determine the issue involved.

In respect of condition (2) above, the same was also met. The issue of statute of limitation or statute bar was traceable to the Appellants’ grounds of appeal before the Court below and was quite capable of being distilled from ground 2 in the Respondents’ Notice of Appeal before the Court below. The said ground 2 which is copied at page 113 of the Records was couched thus:
“2 The learned trial Judge erred in law when she assumed jurisdiction to entertain the suit subject matter of this appeal.
PARTICULARS OF ERROR
i) Based on facts pleaded in the Statement of Claim the action was statute barred and disclosed no legally cognisable cause of action.
ii) The trial Court had no jurisdiction to entertain an incompetent action.”

That ground of appeal specifically put the issue of limitation law or statute bar squarely before the Court of Appeal and as such, conditionality No. (2) was thereby duly satisfied in the circumstances of this case. This third conditionality which is that all necessary materials must be available to the Court for consideration was also satisfied in this case. This is because the writ of summons and statement of claim of the Appellants which alone fell due for consideration to determine the actual date of the accrual of the appellants’ cause of action was before the Court as well as the written addresses of the parties on the issue which the Court of Appeal pointed out as seen at page 186 to 187 of the Record thus:-
“The writ of summons and statement of claim are at pages 1-10 of the record. The written address of the applicants (appellants herein) is at pages 66-72 of the record. The reply of the respondents (respondents herein) is at pages 73-81 while the applicants’ reply on points’ of law is at pages 90-94 of the record.”

It seems to me evident that all the relevant materials were before the Court and that the Court duly and properly invoked its powers under Section 15 of the Court of appeal Act in this case. As regards conditionality Nos. 4 and 5, I contend that those too were duly met in this case. Although this was not an election related matter as was the case in Obi vs. INEC (supra), the need for the expeditious disposal of the case to meet the ends of justice as well as to avoid the injustice or hardship that will follow if the case is remitted back to the trial Court were evidently manifest in this case and indeed formed the fulcrum of the decision of the Court below when it resorted to the exercise of its powers under Section 15 of the Court of Appeal Act in this case. At page 187 of the Records, the Court below held thus:
“I am of the respectful view that in order to avoid the delay, expense and inconvenience that will be occasioned by an order remitting the suit back to the lower Court for the issue to be determined by another Judge of that Court, this Court by virtue of Section 15 of the Court of Appeal Act, 2004, is in as good a position as the trial Court to determine whether the suit is statute barred. See Narumal & Sons (Nig.) Ltd Vs. Niger Benue Transport Co., Ltd (1989) 2 NWLR (106) 730 at 742; S.P.D.C (Nig.) Ltd vs. Pere Cole & Ors (1978) 2 SC 183; Ushae vs. COP (2005) 2 NWLR (937) 499 at 535 D-E.”

To be clear, contrary to the appellants’ contentions, all the requirements of law for the invocation and exercise of the powers of the Court below under Section 15 of the Court of Appeal Act were duly fulfilled, complied with and met in this case and that the Court below was therefore right in resolving the real issue in controversy in the appeal between the parties as it did, bearing in mind that the Court below hears appeals by way of rehearing and is accordingly entitled to make any orders which the trial Court ought to have made as provided for in Section 15 of the Court of Appeal Act. For clarity I quote:
“15. General Powers of Court of Appeal
The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before the final judgment in the appeal, and may make an interim order or grant any may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”

The Appellants had further contended further at pages 11 to 14 of the Appellants Brief of Argument that the Court below was wrong in holding that the cause of action in this case accrued on the 15th day of December, 1990 and therefore statute barred, when the reliefs claimed by the Appellants were for rendering of Account by Directors and setting aside of improper appointments of Directors made after 15th December, 1990 which constitutes continuing damage and fresh cause of action each year. In response, I am of the view that this argument is erroneous in points of fact and misconceived in law in view of the specific pleading of the Appellants in paragraph 22 of their statement of claim copied at page 8 of the Records which runs thus:
“22. The Plaintiffs aver that H.R.H. OBA J.A. Ojomo and his siblings solely and exclusively took over the management of all the 1st plaintiff Company’s properties- real and personal – since 15th December, 1990 till date rendering no account to any Director or Shareholders of the Company.”

What has been brought to the fore is that from the pleading, the appellants’ cause of action was the alleged wrongful takeover of the management of all the 1st appellant’s properties sometime on the 15th day of December, 1990 without rendering any account. They instituted this case on the 1st day of August, 2005. It does not take much to see that the lapse of time between 15th December, 1990 and 1st August, 2005 is about 15 years which is far outside the limitation period for matters of this nature. As it relates to the argument about continuing damage which is supposed to accrue as a fresh cause of action every year for the Appellants, we submit that it is untenable in the circumstances of this case. This selfsame argument was put forward by the Appellants at the trial Court which the Court below reviewed and rejected as erroneous in the following terms:
“It is clear from the above paragraphs that the cause of action is the alleged illegal takeover of the management and control of the 1st Plaintiff by the applicants from 15th December, 1990. It is the respondents’ contention that the applicants have received rents from or have been in possession of various properties of the 1st Plaintiff since 15th December, 1990 without rendering accounts in respect thereof. It is also their contention that any appointment, removal and/or resignation of any director made after 15th December, 1990 and before 6th May, 2004 is null and void. In other words, any act done by the applicants regarding the management and control of the company between 15th December, 1990 and 6th May, 2004 is null and void. As can be seen from the underlined portions of the pleadings, the touchstone for each and every complaint is 15th December, 1990. The cause of action accrued on that date when the existing director was allegedly removed and replaced by the applicants. The writ of summons and statement of claim were filed on 1/8/2005 well outside the five-year limitation period prescribed by Section 16 of the Limitation Law. The argument that there is continuing damage giving rise to a fresh cause of action for as long as the applicants fails to render accounts is untenable in the present circumstances. There is nothing in the statement of claim to warrant such an inference.”

Apart from the fact that there is nothing in the statement of claim to warrant such an inference, it is also clear that in determining the date of accrual of a cause of action for the purpose of the application of the statute of limitation, it is the date of the happening of the alleged wrongful act of the Defendants as pleaded in the statement of claim that is to be considered as the date of the accrual of the cause of action from which the limitation period is reckoned. It is not the date the resulting damage manifest and as such, it does not matter that any resulting damage from the alleged wrongful act may have continued or the injury sustained, continued ad infinitum. See SANDA Vs. KUKAWA LOCAL GOVT. (1991) 2 WNLR (pt. 174) 379 at 391 per Kawu JSC confirmed the position above stated thus:-
“…Cause of action in the context simply means the factual situation which, if substantiated, entitles the plaintiff/appellant to a remedy against the defendants; see Letang v Cooper (1964) 2 Al E.R 929. In a simple contract such as is involved in this case, the limitation of the action runs from the date of the breach of it. It is immaterial that the effect of appellants’ financial and other losses may continue ad infinitum. That may simply enhance quantum of compensation. Clearly, the cause of action accrued on the 13th of December, 1983…”
See also GULF OIL LTD Vs. OLUBA (2002) 12 NWLR (Pt.780) 92 at 112-113.

It is therefore clear that the Appellants’ contentions in this case are mistaken and misconceived. Additionally, the Appellants have contended that the limitation law of Rivers State does not apply to the maintenance of action on intra-company affairs bordering on statutory duties of directors of a company as enshrined under the Companies and Allied Matters Act, 2004. In response, I am of the view that this argument is untenable because it is not covered by any of the Appellants’ grounds of appeal in this case. The Appellants are circumscribed by their grounds of appeal and cannot be entitled to argue at large in their brief of argument without reference to the actual grounds of appeal filed. Such arguments, questions or issues arising in the brief of argument which are not covered by any grounds of appeal are incompetent. See A.P LTD. Vs OWODUNNI (1991) 8 NWLR (Pt.210) 391 at 423; SEKONI vs. U.T.C. (Nig) Plc. (2006) 8 NWLR (Pt.982) 283 at 297, USUNG & ORS vs. NYONG & ORS (2009) LPELR-CA/C/22/2005, ENEOLI vs. ORAEKWE (2005) 1 NWLR (Pt.961) 342 at 351.

The above taken aside, it is easy to see that the Appellants argument predicated on Sections 279, 282 and 283 of CAMA is contradictory and self defeating because their claim in this case as set out in paragraph 22 of their Statement of Claim was that “H.R.H. OBA J.A. Ojomo and his siblings solely and exclusively took over the management of all the 1st Plaintiff company’s properties – real and personal – since 15th December, 1990 till date rendering no account to any Director or Shareholder of the Company.” In other words, they were not “Director” or “proper Directors” of the 1st Appellant and were in possession of the properties wrongfully. That being the case, it follows that the provisions of Sections 279, 282 and 283 of CAMA cannot bind them if they are not proper directors.

Besides this, Section 16 of the Limitation Law of Rivers State specifically applies to actions founded on “contract, tort or any other action not specifically provided for in Parts I and II of this Law”. The implication of this is that it applies to all matters including the Appellants’ claim alleging wrongful takeover of the management of the 1st Appellants are not on a strong wicket on this point.

While arguing their issue no. 1 at pages 4 to 9 of the Appellants Brief of Argument, the Appellants have contended that the procedure provides for in Order 26 Rule 6(1) of the Federal High Court Rules 2000 which requires a Defendant to plead limitation law which does not in any way interfere with a party’s right to challenge the jurisdiction of the Court but is rather a procedure to be followed for the actualisation of that right. They therefore contend that there is no conflict between the provisions of the Federal High Court Rules and Section 6(6)(a) of the 1999 Constitution. They argue further that the defence of limitation is a “special specie” which ought to be specifically pleaded in the statement of Defence before it can be considered by the Court because if the date put forward by the Defendant is erroneous, it puts the Claimant in a precarious position. They relied on the case of Odubeko vs. Fowler (supra). In response, we submit that the said submissions are misconceived and unfounded in law.

I agree with learned counsel for the respondents that this argument is non sequitur and unavailable to the Appellants in view of their express indication in paragraph 2 of the Notice of Appeal saying that their appeal was limited to that part of the decision of the Court below which resorted to Section 15 of the Court of Appeal Act to find that the Appellants claim was statute barred. It follows from that decision that there is no appeal against the rest of the parts of the decision of the Court of Appeal and as such, all grounds of appeal and the issues and arguments arising there from relating to other parts of the decision are accordingly incompetent and liable to be discountenanced. See MERCANTILE BANK PLC vs. NWOBODO (2005) All FWLR (Pt.281) 1640 at 1646-1647.

The point must be made that the position of Nigerian law is now well settled that the issue of limitation law or statute bar is a jurisdictional issue which can be raised at any time even before the filing of the Defendants pleadings and must be heard and determined first before any further proceedings are taken in the matter. See
i. ELEBANJO vs. DAWODU (2006) 15 NWLR (Pt.1001) 76 at 115, 135-136,
ii. NWAKA V. THE HEAD OF SERVICE EBONYI STATE (2008) 3 NWLR (Pt.1073) 156 at 173,
iii. DAVIES v. MENDES (2007) All FWLR (PT. 348) 838 at 901,
iv. AKEGBEJO v ATAGA (1998) 1 NWLR (pt. 534) 459 at 468.

From the foregoing, it is clear the appellant had not stood on a solid foundation in pushing this appeal which lacks merit. I too dismiss it as I abide by the consequential orders made.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment delivered by my learned brother, Okoro, JSC, and I agree with him that this appeal lacks merit. He dealt with the issue at stake, meticulously and decisively, and I see no reason to be labour the point. Suffice it to say that I share the same views with him, and it is on that premise that I also dismiss this appeal. I abide by the consequential orders he made.

ABDU ABOKI, J.S.C.: I had a preview of the judgment written by my learned brother, JOHN INYANG OKORO, JSC, just delivered in this appeal. The analyses and the resolutions of the sole issue canvassed in this appeal represent and accord with my views on the said issue.

I do not think it is still necessary to engage in any further repetition. Accordingly, I hereby adopt the judgment, as mine, as there is nothing more to add.

I adjudge this appeal to be devoid of any merit hence it deserves to be dismissed. Accordingly, it is dismissed by me.

I abide by the consequential orders in the lead judgment.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I concur with the reasoning expressed in the judgment just delivered by my learned brother, the Hon. Justice John Inyang Okoro, JSC, to the conclusive effect that the present appeal is devoid of merits. Hence, the appeal is equally dismissed by me for being devoid of merits. Appeal dismissed.

Appearances:

O. WALI, SAN, with him, C.T. AMADI, ESQ. For Appellant(s)

MARK S. AGWU, with him, O. J. IHEKO and O. U. IGWE For Respondent(s)