HYD ROAD & OTHERS TECH LIMITED & ANOR v. ABIA STATE GOVERNMENT & ANOR (2014)

HYD ROAD & OTHERS TECH LIMITED & ANOR v. ABIA STATE GOVERNMENT & ANOR

(2014)LCN/7640(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of December, 2014

CA/PH/27/2008

RATIO

CONTRACT: TERMS OF CONTRACT; WHETHER A PARTY HAS THE FREEDOM TO DETERMINE THEIR OWN TERMS AND WHETHER THE COURT CAN DETERMINE THE TERMS OF CONTRACT BETWEEN PARTIES

CONFLICT OF LAW: THE DEFINITION OF CONFLICT OF LAW AND FALSE CONFLICT OF LAW

ENGLISH LAW; THE APPLICABILITY OF ENGLISH LAW
It is trite that Nigeria was a Colony of Britain and that both our Procedural Laws as well as our substantive Law of Contract as in this case, were either received hook line and sinker or part of what were then referred to as Statutes of General Application from England.
Accordingly, whereas in this case there were alternative sets of laws and jurisdictions applicable to the transaction, the Learned Trial Judge was right to have invoked the lex fori which was chosen by the Appellants, in the resolution of the case before him.  See, Ramon V. Jinadu (1986) 5 NWLR (Pt. 39) 100 at 108.
The case of VITA FOODS PRODUCTS INC. V. UNUS SHIPPING CO. LTD. should be distinguished from the present case in that in the latter, the applicability of English Law was entrenched in the agreement in absolute terms. In the former case Lord Wright’s contribution to that Judgment is very important particularly at pages 521 and 523.  At page 521 paras. A – E, the Learned Law Lord reasoned that it was then well settled that, by English Law and that of Nova Scotia (a Canadian State which law was the same with that of England); the proper law of contract “is the law which the parties intended to apply.” According to him, that intention is objectively ascertained and, if not expressed will be presumed from the terms of the contract and the relevant surrounding circumstances.  Nevertheless, he quoted Lord Atkin whose pronouncement in the case, of R.V. International Trustees for the Protection of Bondholders Aktiengellschaft  [1937] A.C. 500; [1937] 2 ALL E.R. 164; was then the latest enunciation of this principle at page 59 that:-
“Their intention will be ascertained by the intention expressed in the contract if any, which will be conclusive.”
His Lordship continued when the Learned Counsel for the Appellants objected that Lord Atkin stated that principle above cited as being too broad and that some qualifications were necessary thus:
“It is true that, in questions relating to conflict of laws, rules cannot generally be stated in absolute terms, but rather as prima facie presumptions; but where the English rule that intention is the test applies  and where there is an express  statement by the parties of their intention to select the law of contract, it is difficult to see what qualifications are possible, provided the intention expressed is bonafide and legal and provided there is no reason for avoiding the choice on the ground of Public Policy.”per. IGNATIUS IGWE AGUBE, J.C.A.(

ACTION: CAUSE OF ACTION; THE ACCRUAL OF CAUSE OF FACT AND THE TIME FOR COMMENCEMENT
To buttress the fact that the Learned Trial Judge ordinarily ought to be right in invoking Section 18 of the Limitation Law of Abia State since parties had covenanted  that apart from the Laws of England and the  commencement of any action arising from the contract, in the High Court of Justice of England, an action can be equally commenced in another jurisdiction in which case the lex fori of the jurisdiction as in this case ought to the full extent permitted by the Laws of such jurisdiction be applicable to the action and the parties accordingly bound by those law.
I shall cite the recent Supreme Court decision on the principle of Limitation of actions in Attorney General Adamawa State & Ors. V.  Attorney General of the Federation (2014) 14 NWLR (Pt. 1428) 515 at 565 – 566; where Ariwoola, JSC, after restating principles as enunciated in a long line of cases on accrual of cause of action and the time for commencement of action which he rightly posited is not unlimited as that time would definitely come to an end one day by the specific provisions of the Limitation Law as in the instant case; he went on to pronounce on what materials to be taken into consideration in the computation of the Limitation period which are the Writ of Summons and the Statement of Claim only from where it can be determined/ascertained when the alleged wrong giving rise to the cause of action accrued and when the Plaintiff commenced the action.
Relying on the decisions of Chief Woheren JP V.  Joel Emereuwa & Ors. (2004) 8 SCM 185 (2004) WRN 23; Eboigbe V.  NNPC (1994) 6 SCNJ 71 and the celebrated case of Egbe V.  Adefarasin (NO.2) (1987) 1 NWLR (Pt. 47) 1, (1987) 1 SCNJ; he asserted that  after a comparison of the date of accrual of cause of action and the date of commencement of action it is found that the time of  commencement of action is beyond the period prescribed by the Limitation Law, the action is definitely statute barred. per. IGNATIUS IGWE AGUBE, J.C.A.(

STATUTE OF LIMITATION; ACTION THAT IS STATUTE BARRED; THE CONSEQUENCES THAT WILL FOLLOW, WHERE A PARTY’S ACTION IS STATUTE BARRED

The recent Supreme Court decision on Statute of Limitation (See Attorney General Adamawa V. Attorney General Federation (2014) 14 NWLR (Pt.1428) 515 at 554 paras. D – E per Peter Odili JSC, Ariwoola, JSC at page 567 paras. D – F and Ogunbiyi, JSC at page 568 paras. D – F and 569 paras. F – G; followed a long line of cases like Oshoboja V. Amuda & Ors. (1992) 6 NWLR (Pt. 250) 690; Bello V. Attorney General Oyo State (1986) 5 NWLR (Pt. 45) 828 at 876; Thomas V. Olufosoye (1986) 1 NWLR (Pt. 667) 682, Egbue V. Araka (1988) 3 NWLR (Pt. 84) 598 at 613 and the locus classicus of Egbe V. Adefarasin (No. 2) (1987) 1 NWLR (Pt. 47) 1 at 28 per Aniagolu, JSC, cited in Daudu V. University of Agriculture Markurdi & Ors. (2002) 17 NWLR (Pt. 796) at 384; held that:
“Therefore, what had been restated in Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at Pp. 20 – 21, paras. H – A would apply and these are:
“Where a party’s action is statute barred the following legal consequences will follow:
(a) The party would lose his right of action;
(b) The party would lose the right of enforcement;
The party would irretrievably lose the right to judicial relief; and
(c) The party would only have an empty cause of action which no Court will assist him to enforce.”
per. IGNATIUS IGWE AGUBE, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

1. HYD ROAD & OTHERS TECH LIMITED
2. HYDRO TECH NIGERIA LIMITED Appellant(s)

AND

1. ABIA STATE GOVERNMENT
2. ATTORNEY-GENERAL OF ABIA STATE Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A.(Delivering the Leading Judgment): This Appeal questions the Ruling delivered by the Honourable Justice Obisike Oji sitting then at the Umuahia Division of the Abia State High Court of Justice which Ruling was delivered on the 15th day of November,2006, dismissing the Suit of the Plaintiffs (now Appellants) for being statute barred and un-maintainable.
It would be recalled that the Appellants in their Writ of Summons dated 14th day of April, 2005 and the Particulars of Claim attached thereto dated and filed on the 22nd April, 2005, sought for the following Reliefs against the Respondents thus:-
(a) The sum of US$16,828, 215. 46 (Sixteen Million Eight Hundred and Twenty-Eight Thousand Two Hundred and Fifteen Dollars and Forty-Six Cents) being the amount due to the Plaintiffs from the Defendants for services rendered to the Defendants by the Plaintiffs which debt was acknowledged by the Defendants in writing on the 13th May, 1999 but which the Defendants has neglected to pay despite repeated demands.
(b) An order of ten (10%) percent interest rate payment on the said sum by the Defendants from the date of Judgment until the total sum of is liquidated.”
By a motion on Notice dated and filed on the 17th day of May, 2005, the Plaintiffs/Appellants sought for an order that the suit be placed on the “Undefended List”.
The Motion was supported by a an Affidavit of ten Paragraphs deposed to by Rev. Hyde Onuaguluchi, a Director of the 1st and 2nd Plaintiffs/Appellants stating amongst other facts and in paragraph 9 thereof that he believed that the Defendants did not have any defence in law to the payment of the debt. It is not clear from the Records whether the learned trial Judge ruled on the Motion. However, from the facts as stated in the Appellants’ Brief of Argument (see page 1 thereof), the learned trial Judge was said to have ordered for parties to file their pleadings in spite of the fact that the Defendants/Respondents did not file their Notice of Intention To Defend nor attend the Court.
Pleadings were duly exchanged subsequently after a Memorandum of Conditional Appearance by the Defendants/Respondents and Notices of Motion for extension of time were filed by the respective learned Counsel for the parties. It is pertinent note that in paragraph 7 of the Defendants/Respondents’ Statement of Defence, the Defendants pleaded thus:-
“7. The Defendants shall urge this Honourable Court pursuant to Order 14 Rules 2 & 3 to set down the points of law raised in Paragraph 6 above for hearing and to dismiss this suit in limine.”
Paragraph 6 of the said Statement of Defence averred as follows:-
“6. The Defendants shall further contend at the hearing that this suit is incompetent on the following grounds:
(i) The subject-matter of this suit is Statute Barred by virtue of
Sections 18 & 42 of the Limitation Law CAP.24, LABSN 1991 -2000.
(ii) The debt, the subject-matter of this suit became due upon the commissioning of the project on 3rd June, 1986.
(iii) By virtue of Article 25 (2) of the Contract Agreement aforesaid, this Honourable Court lacks jurisdiction to entertain this suit as the said suit ought to be brought in the High Court of Justice in England.
(iv) The 1st Defendant was improperly joined in this suit by the Plaintiffs”.
By another motion dated and filed on the 2nd day of June, 2006, the Defendants (now Respondents) sought for Orders:-
1. Setting down the points of law raised in Paragraph 6 of the Statement of Defence as earlier reproduced for hearing.
2. Dismissing the Suit (NO. HU/82/2005-Hydro Roads & Others Tech. Ltd & Anor. V. Abia State Government & Anor. for being incompetent.
The Grounds for the Application were a replication of the Grounds upon which the Objection raised in the Statement of Defence was predicated. Upon the points of law being set down on the 13th day of July, 2006 and were so argued by Chief S. U. Akuma, the Hon. Attorney-General of Abia State with him T.C. Nwachukwu Esq, (P.S.C) and V.O. Chukuwu Esq, (S.C.) Ministry of Justice Abia State for the Defendants an adjournment was taken by Chief J.C. Ifebunandu to the 9th of October, 2006 for Reply. Upon the Reply of the learned Counsel for the Plaintiffs on the that date, the matter was then adjourned to the 30th of October, 2006 when Chief Akuma replied on points of law and the case further adjourned to 15/11/2006 for Ruling.
In his well considered Ruling delivered on the said 15th of November, 2006, the learned trial Judge held on the legal issues raised and argued as follows at pages 85-86 (pages7 and 8) of the Records/Ruling thus:-
“It is clear that limitation law which prescribes time limit within which a suit must be brought has retrospective application so that any suit commenced after the coming into effect of that Law will be determined by that law. The result is that even though in this suit the cause of action accrued on June, 1986 when the Plaintiffs brought this suit in 2005 after the Limitation Law had come into force in 1990, it is this Law that governs the Suit.
The question of joinder of the 1st Defendant in this suit is not a matter that is capable of defeating the Suit. See, C.R.S.N. CORP.VS.ON1 & ORS. (1991)7 SCNJ (pt.11) 366, 383.
The Objection that this Suit is time barred is well founded. The Statute of limitation in Law removes the right of action, the right of enforcement, the right of judicial relief and leaves the Plaintiff with a bare and empty cause of action which he cannot enforce. See EMIANTOR VS. THE NGERIAN ARMY & ORS. (1999) 9 SCNJ 52.
When a Statute stipulates that an action must be commenced within a specified time any action commenced outside the specified period is not maintainable in Law.See, AHMED VS. GUISAU L.G. & ORS. (1980) FNR 491. Accordingly, this Suit is dismissed for being Statute barred and unmaintainable. I award no costs”.
Dissatisfied with the above Ruling of the learned trial Judge, Chief J.C. Ifebunandu for the Plaintiffs who shall herein after be referred as Appellants, gave Notice of Appeal with two Grounds which I shall hereunder reproduce with their full particulars thus:-
“GROUNDS OF APPEAL
(i) The learned trial Judge erred in law when he held as follows:
“Having found that the parties in this contract envisaged that the lex fori of the Court where the suit is brought other than in the High Court of England should apply” to the full extent permitted by the laws of such jurisdiction. I hold that the limitation Law of Abia State applies in this Suit.”

PARTICULARS
(a) Exhibits HAG1 the Contract Agreement between the parties stipulated at Section 25 (1) unequivocally that the contract shall be governed by and construed in accordance with English Law and so there is no conflict as to the law applicable to the contract between the parties.
(b) The introduction of the Limitation Law of Abia State CAP. 24 Laws of Abia State 1991-2000, Section 18 dealing with contract between parties by the trial Court was contrary to the Agreement of the Parties.
(c) The Limitation Act of 1980 of England which deals with contract was the English Law in existence at the time of the suit between the parties.
(d) Section 5 of the Limitation Act of England states as follows:
“Where any right of action has accrued to other liquidated pecuniary claim and the person liable or accountable for the claim acknowledges the claim the right shall be treated as having accrued on and not before the date of acknowledgment or part payment”.
(f) The date of acknowledgement of this debt being 13th May, 1999 as shown in Exhibit HAG2 this Suit filed on the 2nd April, 2005 was not statute barred.
(g) Exhibit HAG2 appointed Federal Ministry of Finance as agents to pay the debt and deduct from Abia State Account. Federal Government was making arrangement to effect payment when the Abia State took the Federal Government to Court seeking to stop Federal Government from further deducting money for debt servicing from Abia State Account. Federal Government there upon wrote to plaintiffs (see Exhibit 11 HAG2) to go back to Abia Sate for payment. The letter was dated 8th November 2002. So the day plaintiffs knew that the agent of Abia State was no longer willing to pay on behalf of Abia State was 8th November, 2002.
(ii) The Learned trial Judge erred in law when he failed to give proper interpretation and consideration to the effect of the waiver of Immunity clause contained in paragraph 25 (3) (5) of the contract Agreement Exhibit HAG1 in arriving at the conclusion that the Suit was statute barred .

PARTICULARS
(a) By Clause 25(3) of Exhibit HAG1 the Contract Agreement, the Respondent waived all the rights to “Immunity in respect of any legal action or proceeding arising out of or in connection with such action or proceeding.”
(b) The making, enforcement or execution against property whatsoever or any order of Judgment which may be made or given in such action or proceedings to the full extent permitted by the laws of such jurisdiction”.
(c) The trial Court misinterpreted the above clause (b) to derogate from the waiver of Immunity already consented to by agreement of the parties.”
(d) The learned Judge failed to take cognizance of Clause 25(5) of Exhibit HAG1 which prevents any Law made after the contract was made, which purports to invalidate any provision of the contract from doing so as follows:-
“if at any time any provision of this agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction neither the legality, validity or unenforceability of such provision under the law of any jurisdiction shall in any way be affected or impaired thereby.”
Upon the transmission of the Records and entering of the Appeal, parties were ordered to and filed their respective Briefs of Argument. Whereas the learned Counsel for the Appellant filed the Appellant’s Brief dated 16th of January, 2008, on the 24th day of January, 2008; the Respondents failed, refused and/or neglected to file their Brief as at when due until the learned Counsel for the Appellants filed a Motion on the 23rd day of September, 2008 praying for an order setting down the Appeal for hearing solely on the Appellants’ Brief of Argument which prayer was granted on the 27th day of January, 2009.
From what can be gleaned upon a perusal of the case file, it would appear that a motion dated 13th of January, 2009 but filed on the 15th of January, 2009 by the learned Attorney-General of Abia State at our Port Harcourt Division for the regularization of the Respondents’ Brief and which was slated for hearing on the 27th of January, 2009, was abandoned and accordingly struck out thus warranting the grant of the Appellants’ Application for the hearing of the Appeal on the Appellants’ Brief of Argument alone on that 27th of January, 2009.
In spite of the fact that this Appeal was adjourned from 27/1/09 to 23/4/2009, to 10/12/13 and subsequently to the 24th of September, 2014 – (a period of about five good years), the Respondents did not deem it necessary to file a fresh Application for enlargement of time until we were minded to hear the Appeal or the 24th of September, 2014 solely on the Appellants’ Brief. We shall therefore determine this Appeal on the merits of the Appellants’ Brief. Chief J.C. Ifebunadu, who settled the Appellants’ Brief distilled two (2) Issues for determination couched as follows and hereunder reproduced:-
ISSUES FOR DETERMINATION:
“(A) Was the trial Court right in holding that the Abia State Law of Limitation on contract applied to this case having regard to the terms of  the Written contract agreement between the parties?
“(B) Was the lower Court right when after it observed that the Suit was caught by the Abia State Statute of Limitation on contract held as follows: “Accordingly this Suit is dismissed for being Statute barred and unmaintainable”?.
Before delving into the argument of the learned Counsel on these issues it is apt at this juncture to State the facts of the cases that has warranted this Appeal. According to the facts pleaded by the Appellants in their Statement of Claim, the 1st Appellant is a registered limited liability company incorporated in England with its Registered Offices at 11 Sisters Avenue, London SW11 5SP and Nigeria at No.85/87 Okigwe Road, Owerri and carries on business in Nigeria at all material times to the Suit. The 2nd Appellant on the other hand is also a Limited Liability Company but incorporated in Nigeria with its Office at No. 91A, Agbani Road Eungu, in Eungu State of Nigeria and at all material time an agent of the 1st Appellant.
The 1st Respondent is the Government of Abia State of Nigeria which on the creation of States in 1991 was carved out of the former Imo State of Nigeria.
The 2nd Appellant is said to be the legal Agent or Authority that represents the Abia State Government in all legal proceedings against the State Government. On or about the 12th day of February 1982 the former Imo State Government entered into a written contract with the 1st Appellant for the execution of a Water Project called Arochukwu/Ohafia Water Supply Project. The Contract was pleaded. The said project was executed by the 1st Plaintiff under a Federal Government Guaranteed Loan which was signed by the representative of the Federal Government that is the Minister of Finance on the 16th day of July, 1982.
By a letter dated 12th August, 1982 addressed to the Commissioner for Public Utilities, Imo State; the 1st Appellant appointed the 2nd Appellant as its Agent for the purpose of execution of the Water Supply Project and also for receiving all payments due to the 1st Appellant in respect of the said project contract. The Appellants were said to have executed the said Arochukwu/Ohafia Water project satisfactorily in accordance with the contract agreement and same was commissioned by the Military Governor of Imo State on the 3rd of June, 1986. The letter written by the Permanent Secretary, Ministry of Works and Transport and addressed to the 1st Appellant to that effect was also pleaded.
Further to the above fact the Appellants also averred that when Abia State was created out Imo State, the Abia State Water Board which inherited the management of the Arochukwu/Ohafia Water Supply Project by a letter dated 12th July, 1993 and referenced PUB/GM/ARLGA/S.48/46 signed by Engr. O.K. Chioba, General Manager Abia State Water Board; reminded the Abia Sate Ministry of Works, Land, Housing and Transport Umuahia of the outstanding debts owed to the Appellants with respect to the Arochukwu/Ohafia Water Supply Project which said letter they also pleaded.
In confirmation of the above indebtedness, the Military Administrator of Abia State on the 13th May, 1999, by a letter referenced GHUM/15/AUO wrote to the Federal Minister Finance and copied the 2nd Appellant admitting the sum of US $16,828, 215. 46 as owed to the Appellants with respect to the execution of the contract for the Arochukwu/Ohafia Water Supply Project. The said letter was also pleaded. The Appellants were also said to have at various times made demands for the Respondents for the payment of the said sum of money without success. They pleaded the Demand letters of 2nd October, 2000 and that of 12th February 2001 and gave due notice to Respondents to produce the said letters at the hearing.
They prayed that unless ordered by the Court to do so, the Respondents had no intention of paying the money as admitted in their afore stated letter of 13th May, 1999 to the Federal Minister of Finance pleaded in paragraph 10 of their Statement of Claim; hence the Reliefs sought in paragraph 12 (a) and (b) of the Statement of Claim.
The case of the Respondents as pleaded in their Statement of Defence is that neither 1st nor 2nd Appellants were incorporated as limited Liability Companies in England and Nigeria. They admitted paragraphs 3, 4, 5, and 6 of the Statement of Claim but denied paragraph 7 as according them they mere not privy to the 1st Appellants’ appointment of the 2nd as its agent for purposes of execution of the project and receiving all payments due to the 1st Appellant and they (Respondents) had no knowledge of such transaction between the Appellants. They admitted paragraphs 8, 9, 10 and 11 of the Statement of Claim and in further answer to those averments contended that:-
“(a). The Arochukwu/Ohafia Water Project was financed by a loan arranged under the  Agency of Lazard Brothers & Company Ltd, London. The said loan was guaranteed by the Federal Government of Nigeria. This loan formed part of the Paris Club debt owed by the Abia Sate Government.
“(b)That pursuant to the letter Referenced No. GHUM/15/AUO of 11th May, 1999, the Debt Management Office have been making massive deductions in the monthly allocation of Abia State from the Federation Account in settlement of the debts owed by Abia State Government to Paris Club and other foreign creditors including the subject matter.
“(c) From the deduction so far made from the monthly allocations of Abia State Government the Defendants are not indebted to the Plaintiffs to the sum of US $16,828,215.47 or any amount  at all.”
Against the afore stated facts they then contended as they had done in paragraph 6 concerning the points of Law raised that necessitated the Ruling of the Court below culminating in the Appeal at hand. They further in paragraph 8 of their Statement of Defence  denied paragraph 12 of the Statement of Claim and contended that the Appellants as plaintiffs did not deserve and were not entitled to any of the Reliefs claimed therein. They finally averred that the letter Ref. No.GHUM/15/AUO of 13th May, 1999 written to the Federal Ministry of Finance and copied to the 2nd Plaintiff/Appellant does not constitute an acknowledgment of the aforesaid debt. They then urged the Court to dismiss the Claim of the Appellants in its entirety.
ARGUMENT OF ISSUES:
ISSUE (A):- WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT THE ABIA STATE LAW OF LIMITATION ON CONTRACT APPLIED TO THIS CASE HAVING REGARD TO THE TERMS OF THE WRITTEN CONTRACT BETWEEN THE PARTIES ?
In the course of his argument, the learned Counsel for the Appellant pointed out that the issue is distilled from Grounds 1 and 2 of the Appellants’ Ground of Appeal. Arguing the Issue, the learned Counsel in the first place submitted that the Issue of Conflict of Laws does not arise in the contract between the parties in view of the clear choice of law which they had made the Written Contract in paragraph 25 (1) of the Agreement (page 73 of the Records refers). He referred further to Clause 23 of the Agreement and the case of  THE METAMORPHOSIS (1953) WLR P. 547, VITA FOOD PRODUCTS INCORPORATED V. UNUS SHIPPING CO. (1939) A. C. 227 OR (1939) 1 ALL E.R. 513; to submit that the Court below rather than apply the law chosen by the parties in their Contract Agreement went into the interpretation of Clause 25 (2) and (3) of the Agreement thereby introducing what it termed conflict of laws, and the holding at page 84 of the Records on the applicability of the Abia State Limitation Law to the Suit. He therefore from the foregoing premises, contended that it is not the duty of the Court to rewrite a written Contractual Agreement what the parties did not provide for in the contract.
To buttress the above submissions, he placed reliance on the authorities of RACE AUTO SUPPLY CO. LTD. Vs. AKIB (2006) ALL FWLR (PT.327) 486 at 511 S-C; STANDARD (NIG) ENGINEERING CO. LTD. NGERIAN BANK FOR COMMERCE & INDUSTRY (2006) ALL FWLR (Pt.316) P. 255 and MISR V. ASSAD (1971) 1 ALL NLR 172.
On the principles of interpretation of contract, he cited FGN.V ZEBRA ENERGY LTD. (2003) FWLR (Pt.142) 154 at 183 S.C; IZIYAKU V. ZWINCOINA (2001) FWLR (pt. 72) 2096 at 2104 C.A. and ONA V. ATTENDA (2000) 5 NWLR (Pt.656) 244; to argue that if the Court below had applied the above principles to EXHIBIT HAG 1 i.e the Contract Agreement in the interpretation of paragraph 25, he would have arrived at the conclusion that by paragraph 25(3) of the Agreement, the Respondents waived all rights to “Immunity in respect of any legal action or proceeding arising out or in connection with the contract or the issue of any process in connection with such action or proceedings” and also “the making enforcement or execution against property whatsoever of any order of judgment which may be made or given in such action or proceedings to the full extent permitted by the laws of such jurisdiction,” which words are  plain and in their ordinary meanings remove all obstacles by way of immunity, or statutory defences available to the Respondents.
Alluding again to paragraph 25 (5) of the Agreement at Page 74 of the Records he submitted that it provides that if subsequently the agreement is or becomes illegal invalid or unenforceable in any respect under the law of any jurisdiction neither the legality, validity or enforceability of such provision under the law of any jurisdiction shall in any way be affected or impaired thereby.
Upon the assumption that an issue of conflict of laws as introduced by the learned trial Judge really arose, he further submitted that the Limitation Law of Abia State cannot apply to the contract between the parties in the case. For this submission he referred us to the SMITH’S CONFLICT OF LAW’S 2ND EDITION by John Obrien at page 345-346 which makes reference to the Rome Convention 1980 to which England subscribed i.e Article 10 (1) (a) (b) (c) which provisions he reproduced to finally posit on this issue that it is beyond any argument that based on either the law chosen by the parties to the agreement or an issue of conflict of laws, the English Statute of Limitation is the one that is applicable to the contract between the parties in this Suit/Appeal and so the learned trial Judge was wrong to introduce the Abia State Law on limitation of action into the contract the subject matter of this Appeal.

RESOLUTION OF ISSUE NUMBER 1 (ONE)
In the resolution of this issue I must agree with the learned Counsel in part that in the case of VITA FOODS PRODUCTSS INC. V. UNUS SHIPPING CO. (1993) 1 ALL E. R. 513, the Privy Council held:
“(1) That the Bills of Lading were not illegal documents, and the express words of the Bills of lading must receive effect, with the result that the contract was governed by English Law”.
Thus, ordinary where parties as in this case in paragraph or Clause 25 (1) of the Contractual terms between the parties agreed that:”The contract shall be governed by and construed in accordance with English Law”, they were bound by the express terms of that contract. This is line with the time-honoured basic principles of the law of contract that once parties are ad idem and have voluntarily and consciously set for themselves terms and conditions in a contract which as in this case they have reduced into writing, then they shall be bound by those terms and conditions of the contract and ordinarily they shall not be allowed to resile from them. Niki Tobi, JSC; that Emeritus and erudite Jurist of all times could not have put it better on two of the many occasions he was called upon to construe contractual terms in suits that raised similar issues as have fallen for determination as in this Appeal.
Firstly, in the locus classicus of Nika Fishing CO. Ltd. V. LAVINA Corporation (2008) 35 NSCQR 1 at 40 -41; the Bill of Lading which was the contractual Agreement between the parties provided for a jurisdictional clause in the following terms:
“Any dispute arising under this bill of lading shall be decided in the country where the carrier has his principal place of business and the “Law of such country shall apply except as provided elsewhere”
and in his contribution on the strict enforcement of the principle of ‘pacta sunt servanda ‘, His Lordship posited:
“The bill of lading contains the contractual terms between parties and therefore binding on the parties. Parties are bound by the conditions and terms in a contract they freely enter into. See, Northern Assurance Co. Ltd. V. Wuruola (1969) NSCC 22; United Bank for Africa V. Europhina Nig. Ltd. (1991) 12 NWLR (Pt.176) 677.

The meaning to be placed on a contract is that which is the plain, clear and obvious result of the terms used. When construing documents in dispute between two parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not patent on the face of the document. See, Amadi V. Thomas Aplin & Co. Ltd. (1972) 7 NSCC 262. Where there is a contract regulating any arrangement between the parties, the main duty of the Court is to interprete that contract and give effect to the wishes of the parties as expressed in the contract document. See, Ochuye V. Nigerian Airways Ltd. (1987) 2 NWLR (Pt.55) 126.
In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document. See, Amizu V. Dr. Nzeribe (1989) 14 NWLR (pt.118) 755. While a contract must be strictly construed in accordance with the well-known rules of construction, such strict construction cannot be a ground for departing from the terms which had been agreed by both parties to the contract. See, Niger Dams Authority V. Chief Lagide (1973) 5 S.C.207.

It is the law that parties to an agreement retain the commercial freedom to determine their own terms. No person, not even the Court, can determine the terms of contract between parties thereto. The duty of the Court is to strictly interprete the terms of the agreement on its clear wordings. See, Ninanteks Associates V. Mercc Construction Co. Ltd. (1991) 2 NWLR (Pt.174) 411.  Finally, it is not the function of a Court of law either to make agreements for the parties or to change their agreements. See, African Reinsurance Corporation V. Fautaye (1986) 1 NWLR (pt. 14) 113″.
See, further Per Tobi J.SC; again in Idoniboye Obu V. NNPC (2003) 4 MJSC 131 at 168 Paras. F -G. and Odutola & Anor V. Paper Sack Nig. Ltd. (2006) ALL NLR (Pt.2) 248 at 262 – 263 Paras. J-B.
In MISR (NIG) Ltd V. Salah El Assad (1971) 1 A. N.L.R. 175; ably cited by the learned Counsel for the Appellants, the Supreme Court of yore per Coker, Udo Udoma and Soweminio, JJSC; speaking in the same Vein held the view that, it would be asking too much of any Court to sanction an unwarranted departure from the terms of a contract into  which two free and able parties entered into unless such a contract or any part of it is illegal or had been lawfully abrogated. See also Solicitor-General Western Nigeria V. Dr. Festus O. Adebonojo & Ors (1971) 1 A. N.L.R. 181.
From the dicta of their Lordships especially, those of Tobi, J.S.C  which have been quoted above, there is no doubt that learned Counsel for the Appellants was on very firm ground when he cited Race Auto Supply Co. Ltd. V. Akib (supra), Standard (Nig.) Engineering Co. Ltd V. N.B.C. Ind. (supra); FGN V. Zebra Energy Ltd. (supra); Isiyaku V. Zwingina (supra) and Ona V. Attenda (supra) which decisions are all in tandem with the copiously quoted dicta of the supreme Court Justices in the cases.
I had earlier cited to support the learned Counsel’s view on the bindingness of parties by the terms and conditions in their contract; the need for Courts not to rewrite contracts for parties thereto, the need for a broad construction of the contractual documents in order to discern or decipher the intention of the parties and the need to give the wordings of the contractual terms their ordinary and simple meaning and to endeavour not to depart from their purposive constructions when those words are precise, clear and unambiguous as they better convey the intention of the parties.
In spite of these well founded enunciations of the position of the law, I beg to disagree with the contention of the learned Counsel that the issue of conflict of laws did not arise in the contract between the parties in view of the choice they have made of the applicability of English Law to the transaction between the parties by virtue of Clause 25 (2) & (3) of Exhibit HAG 1 (the Agreement) which provide that:-
“(2) The Employer hereby agrees that any legal action or proceedings arising out of or in connection with the Contract may be brought in the High Court of Justice in England and irrevocably submits to the jurisdiction of such Court”, and (3) which states in part that: “The submission to such jurisdiction shall not (and shall not be construed so as to) limit the right of the Contractor to take proceedings against the Employer in whatsoever jurisdictions it shall seem fit nor shall the takings of proceedings in any other jurisdiction whether concurrently or not and to the extent that the Employer may in any jurisdiction in which proceedings may at any time be taken for the enforcement of the contract claim for itself or it assets immunity from Suit or other legal process and to the extent that any such jurisdiction there may be attributed to itself or its assets; such immunity (whether or not claimed) the employer hereby irrevocably agrees not to claim and hereby waives such immunity and the Employer consents generally in respect of any legal action or proceedings arising out of or in connection with the contract to the giving of any relief or issue of any process in connection with such action or proceedings including, without limitation, the making enforcement or execution against property whatsoever (irrespective of its use or intended use) of any order of judgment which may be made or given in such action or proceedings to the full extent permitted by the laws of such jurisdiction.”
Secondly, by the provisions of the above Sub-Clauses (2) and (3) of Clause 25 of the Agreement read together with Sub-Clause (1), it is clear that the issue of choice of applicable law to the contract not only arose but also the choice of jurisdiction. In this wise and with the greatest respect, there can be no basis for the contention by the learned Counsel for the Appellants that the issue of conflict of laws did not arise. This is because even the case of VITA FOODS PRODUCTS INC V. UNUS SHIPPING Co. Ltd. (supra) cited by the learned Counsel for the Appellants, in the Editorial Note at page 513 para. H-Page 514 Paragraph A; the following appears to dispense with any doubt as to whether the issue of conflict of laws did or did not arise inter alia:
“The Judgment herein contains a full consideration of the effect of incorporation of a clause that a contract is to be governed by English Law in a contract that may be illegal under some other law. Even though the bills of lading here in question might have to be considered illegal documents in Newfoundland, that would not necessarily mean that they could be so considered elsewhere, unless, upon the proper principles of conflict of laws being applied, they must be held to be governed by the Law of Newfound land. Apart from this, however, the judgment considers the construction of Acts incorporating the Hague Rules in terms which must apply to many such acts, and is, therefore, of importance in every country where such Acts have passed”.

Before proceeding further it is necessary to look at a functional definition of “CONFLICT OF LAWS”. Black’s Law Dictionary 7th Ed.by Bryan A. Garner at page 295, defines the term as:
“1.  A difference between the laws of different states or countries in a case in which a transaction or occurrence central to the case has a connection to two or more jurisdictions. – Often shortened to “Conflict”.
“2. The body of jurisprudence that undertakes to reconcile such differences or to decide what law is to govern in these situations; the principles of choice of law-often shortened (in sense 2) to conflicts-Also termed (in international contents) private international law; international private Law”.
The learned author also went on to define “false conflict of law” as a situation resembling but not embodying an actual conflict because potentially, applicable laws do not differ, because the laws’ underlying policies have same objective, or because one of the laws is not meant to apply to the case before the Court. “Furthermore, it is a situation in which, although a case has a territorial connection to two or more States whose laws conflict with one another, there is no real conflict because one state, has dominant interest in having its law chosen to govern the case hence there is no real conflict”. The situation is also likened to one in which the laws of all states that are relevant to the facts in dispute either are the same or would produce the same decision in the case.
From the foregoing, it is clear that where the parties entered into the contract now the subject matter of this Appeal and agreed that the English law shall apply to the transaction and that proceedings may be commenced in the High Court of Justice, England or in any other jurisdiction or concurrently in England and/or in another jurisdiction (in this case Nigeria, in the High Court of Justice, Abia State, Umuahia); then as I said earlier the choice of jurisdiction or applicable law may arise as it actually arose and therefore by the definition of conflict of laws and the specie earlier highlighted, the learned trial Judge was right to have raised the issue of conflict of laws.
Apart from the fact that the learned trial Judge had the power to raise it suo motu and then direct the parties to address him on it, the learned Counsel for the Defendants/Objectors now Respondents, raised the issues of conflict of laws at page 31 of the Records in reaction to the Address of the learned Counsel for the Appellants when he submitted in lines 26-28 that: “The parties have a right of choice of law in their contract. Refers to Nigerian Commercial Law and Practice by J.O. Orojo, Vol. 1, 1142 Art. 15.04”.  At page 32 of the Records, the learned Counsel for the Appellants submitted that it was the 1939 English Statute of Limitation operating in England as at the time the contract was entered into that was applicable to the case. In his Reply on points of law, the learned Counsel for Defendants/Objectors/now Respondents then submitted at page 33 lines 19-22 that Exhibit HAG1 had raised the issue of conflict of Laws adding that under the Common Law all questions of procedure are governed by the law of lex fori (i.e. Laws of the forum of action) which in this case is the law of limitation of actions applicable in Abia State. Ramon V. Jinadu (1986) 5 NWLR (Pt.39) 100 at 108 D, referred.
The above arguments of learned Counsel for the respective parties necessitated the learned trial Judge to remark as follows:-
“As I said earlier on, what is the heart of this objection is that the writ is Statute barred. And it is the resolution of what is the applicable statute that will determine the success or otherwise of the objection. While English Statute stipulates Six (6) years as the bar period, the Abia State Law stipulates five (5) years”. The learned trial Judge then noted that from Exhibit HAG1 (the contract agreement between the parties), the contract was entered into in February, 1980 and was by paragraph 8 of the Statement of Claim commissioned in June 1986 when work was completed thereon and if these had been the only facts of the case no problem would have arisen as the question of resolving whether the Suit was statute barred would have posed no problem because if the suit was commenced in April, 2005; the question of applicable law would not have arisen.
He further observed that Exhibit HAG 2 the letter from the Abia State Government and Paragraph 25 (1) (2) and (3) of Exhibit HAG 1 which he reproduced had complicated the matter.
Thereafter at page 84 of the Records lines 1-20 thereof, he then held thus:
“When parties in paragraph 25(3) contracted that any suit  on the transaction may be taken out in any other jurisdiction, they contracted in such case to be bound by “any order of judgment which may be made  or given in such an action or proceedings to the full extent permitted by the laws of such jurisdiction.”By this provision parties incorporated in their agreement the lex fori of  the Court where the matter may be taken to other than in the High Court of Justice England.  And they contracted “to the full extent” permitted by the locus of such  jurisdiction.”
It was clear that  parties envisaged that it is not only English Law that would govern their transaction.
Where any suit on the transaction is taken out in a Court other than the High Court of Justice in England, as in this case, and there is a conflict between the law of the  forum of that Court, and English Law, the principles governing the resolution of conflict of laws could be called in aid.  In this case there is only limited conflict.  Both the English Law and Abia State Law make room for time bar in Suits.  The only difference is in the length of time prescribed by the Laws.  While English Law prescribed a period of six years Abia State Law prescribed five years.”
With the greatest respect to the Learned Counsel for the Appellants, the Learned Trial Judge in line with the authorities cited merely gave vent to the intention of the parties as provided for by the terms of the agreement.  Accordingly, the Learned Trial Judge did not rewrite the Written Contract between the parties.  Just like the Learned Counsel for the Appellants cited Auto Supply Co. Ltd.  V.  Akib (2006) ALL FWLR (Pt.327) 486 at 511, Standard (Nig.) Engineering Co. Ltd.  V.  Nigerian Bank for Commerce & Industry (2006) FWLR (Pt. 316) 255 and MISR V.  ASSAD (1971) ALL NLR 172; where the Appellants entered into the said Agreement and by Clause 25(3) of Exhibit HAG 1 subjected themselves to the jurisdiction of the High Court of Justice of Abia State, Umuahia Division, they intended to be bound by the lex fori of the Court.
Therefore, ordinarily,the Learned Trial Judge was expected to  apply the Laws of  Abia State since as he rightly pointed out the conflict was limited.
It is trite that Nigeria was a Colony of Britain and that both our Procedural Laws as well as our substantive Law of Contract as in this case, were either received hook line and sinker or part of what were then referred to as Statutes of General Application from England.
Accordingly, whereas in this case there were alternative sets of laws and jurisdictions applicable to the transaction, the Learned Trial Judge was right to have invoked the lex fori which was chosen by the Appellants, in the resolution of the case before him.  See, Ramon V. Jinadu (1986) 5 NWLR (Pt. 39) 100 at 108.
The case of VITA FOODS PRODUCTS INC. V. UNUS SHIPPING CO. LTD. should be distinguished from the present case in that in the latter, the applicability of English Law was entrenched in the agreement in absolute terms. In the former case Lord Wright’s contribution to that Judgment is very important particularly at pages 521 and 523.  At page 521 paras. A – E, the Learned Law Lord reasoned that it was then well settled that, by English Law and that of Nova Scotia (a Canadian State which law was the same with that of England); the proper law of contract “is the law which the parties intended to apply.” According to him, that intention is objectively ascertained and, if not expressed will be presumed from the terms of the contract and the relevant surrounding circumstances.  Nevertheless, he quoted Lord Atkin whose pronouncement in the case, of R.V. International Trustees for the Protection of Bondholders Aktiengellschaft  [1937] A.C. 500; [1937] 2 ALL E.R. 164; was then the latest enunciation of this principle at page 59 that:-
“Their intention will be ascertained by the intention expressed in the contract if any, which will be conclusive.”
His Lordship continued when the Learned Counsel for the Appellants objected that Lord Atkin stated that principle above cited as being too broad and that some qualifications were necessary thus:
“It is true that, in questions relating to conflict of laws, rules cannot generally be stated in absolute terms, but rather as prima facie presumptions; but where the English rule that intention is the test applies  and where there is an express  statement by the parties of their intention to select the law of contract, it is difficult to see what qualifications are possible, provided the intention expressed is bonafide and legal and provided there is no reason for avoiding the choice on the ground of Public Policy.”
In the instant case by Section 18 of the Limitation Law CAP. 24, Laws of Abia State of Nigeria, 1991-2000, which provides that:
“18 No action founded on contract, tort or any other action not specifically provided for in Parts II and III of this  Law shall be brought after the expiration of five years from the date on which  the cause of action accrued,”the Learned Trial Judge ordinarily was right when be held at page 84/6 of the Records/Judgment that having found that the parties in this contract envisaged that the lex fori of the Court, where the Suit was brought other than in the High Court of England should apply to “the full extent permitted by laws of such jurisdictions”; the Limitation Law of Abia State applied to the Suit.
Furthermore, the Learned Trial Judge also ought to have been right when he held that by that Law, the Suit will be statute barred where it is brought after five years from the date on which the cause of action arose or accrued.  He also ought to have been right when he held that by Exhibit HAG2 the then Military Administrator of Abia State wrote the Finance Minister of the Federal Government confirming the indebtedness of the 1st Defendant in the transaction.  That letter dated 13th May, 1999 acknowledged the indebtedness in unequivocal terms thus:
“Sir
CONFIRMATION OF DEBT HYDROTECH NIG. LTD.
1. I hereby confirm that the Abia State Government is owing the above named Company the sum of USD 16, 828, 215.46.
2. The Company executed Water Project in Arochukwu/Ohafia in 1985 under a Federal Government Guaranteed Loan. The Company has since not been paid.
3. The Abia State Government is not in the position to pay this debt hence this letter.
4. You may wish to take necessary action towards paying the Company through the Abia State Government.
5. Thanks for your kind cooperation and necessary action.
SIGNED
A.U.Obi
Colonel
Military Administrator”
To buttress the fact that the Learned Trial Judge ordinarily ought to be right in invoking Section 18 of the Limitation Law of Abia State since parties had covenanted  that apart from the Laws of England and the  commencement of any action arising from the contract, in the High Court of Justice of England, an action can be equally commenced in another jurisdiction in which case the lex fori of the jurisdiction as in this case ought to the full extent permitted by the Laws of such jurisdiction be applicable to the action and the parties accordingly bound by those law.
I shall cite the recent Supreme Court decision on the principle of Limitation of actions in Attorney General Adamawa State & Ors. V.  Attorney General of the Federation (2014) 14 NWLR (Pt. 1428) 515 at 565 – 566; where Ariwoola, JSC, after restating principles as enunciated in a long line of cases on accrual of cause of action and the time for commencement of action which he rightly posited is not unlimited as that time would definitely come to an end one day by the specific provisions of the Limitation Law as in the instant case; he went on to pronounce on what materials to be taken into consideration in the computation of the Limitation period which are the Writ of Summons and the Statement of Claim only from where it can be determined/ascertained when the alleged wrong giving rise to the cause of action accrued and when the Plaintiff commenced the action.
Relying on the decisions of Chief Woheren JP V.  Joel Emereuwa & Ors. (2004) 8 SCM 185 (2004) WRN 23; Eboigbe V.  NNPC (1994) 6 SCNJ 71 and the celebrated case of Egbe V.  Adefarasin (NO.2) (1987) 1 NWLR (Pt. 47) 1, (1987) 1 SCNJ; he asserted that  after a comparison of the date of accrual of cause of action and the date of commencement of action it is found that the time of  commencement of action is beyond the period prescribed by the Limitation Law, the action is definitely statute barred.
Coming home to a similar situation in which we have found ourselves where the Respondents wrote to the Federal Government and the Appellants on the 13th of May, 1999 acknowledging their indebtedness  to the Appellants and the specific pleading by the Appellants in paragraph 10 of their Statement of Claim that:
“10. In confirmation of the above indebtedness the Military Administrator of Abia State on the 13th May, 1999 by a letter Ref. GHUM/15/AUO wrote to the Federal Minister of Finance and copied to the 2nd Plaintiff admitting the sum of $16,828,215.46 (Dollars) as owed to the Plaintiffs with respect to the execution of the contract for the Arochukwu/Ohafia Water Supply project;”
The Learned Law Lord held thus:
“In the instant case, the Plaintiffs specifically pleaded that the Defendant  by its letter No. SCB/MKT/XIII/53 dated 27th July, 1983 accepted to pay  the sum of N10,305,725.7 in final settlement of the indebtedness to the Plaintiffs.  See paragraph 13 of the Statement of Claim.”
As stated earlier, the Plaintiff’s action to claim their indebtedness from the Defendant was instituted by filing of a Writ of Summons on 22nd day of February 2011.  As clearly shown in the Statement of Claim of the Plaintiffs, their cause of action arose on the acceptance and acknowledgement of indebtedness by the defendant in July, 1983 and time therefore began to run effective from then. The Limitation Law of Abia State by Section 37(1) thereof provides as follows:
—-”Going by the above authority, Section 30(5) (a) of the Abia State Limitation Law (now) CAP 114, Laws of Abia State (then CAP.24) provides that:
“(5)  Subject to subsection (6), where any right of action has accrued to recover (a) any debt or other liquidated pecuniary claim;  and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be  treated as having accrued on and not before the date of acknowledgment or payment.”
By Section 31(1) and (2) of the Law:
“31 (1) To be effective for the purposes of Section 30 of this Law, an acknowledgment must be in writing and signed by the person making it.
(2) For the purposes of Section 30, any acknowledgment or payment——-
(a) May be made by the Agent of the person by whom it is required to be made under that Section; and
(b) shall  be made to the person, or to an agent of the person, whose interest or claim is being acknowledged, or as the case may be, in respect of whose claim they payment is being made.”
In the instant case the Agent of the 1st Defendant/Respondent had by his letter of 13th May,1999 acknowledged the indebtedness and copied the Minister of Finance, Federal Ministry of Finance, Abuja and accordingly as was rightly held by the Learned Trial Judge going by past and recent authorities of the Supreme Court, the cause of action ought to have accrued on that day. Where therefore the Appellants commenced their action on the 22nd day of April, 2005, the Suit ought to have been statute barred by virtue of Section 18 of the Limitation Law afore cited all things being equal since time would started to run for purposes of the Limitation period of five years within which the Appellants would have commenced the action for the recovery of the indebtedness but the Suit was rather commenced six years after the accrual of cause of action.
However, the above position of the law notwithstanding, the Defendants in paragraph 5(b) and (c) of their Statement of Defence had pleaded inter alia:
“(b) That pursuant to the letter Ref: No. GHUM/15/AUO of 13th May, 1999, the Debt Management Office have been making massive deductions in the monthly allocations of Abia State from the Federation Account in settlement of the debt owed by Abia State Government to Paris Club and other foreign creditors including the subject-matter of this Suit.
“(c) From the deductions so far made from the monthly allocation of Abia State Government, the Defendants are not indebted to the Plaintiffs to the sum of N16,828,215.47 (Dollas) or any amount  at all.”
From these averments, it is abundantly clear that it was not until after the letter of 13th May, 1999 that the Debt Management Office started deductions for purposes of settling the indebtedness  of the Appellants which means that the indebtedness was continuous and in spite of the acknowledgement  letter  (Exhibit HAG 2); by paragraph 5(b) of the Statement of Claim the Respondents denied their indebtedness to the Appellants but did not tell the Court the total amount deducted from the statutory allocations and how much was paid in the settlement of their said indebtedness.
The Appellants have concealed some facts from the Respondents as regard the total deductions by the Debt Management Office in a manner which is fraudulent.  After all Section 33(1) of the Limitation Law of Abia State provides that:
“31(1). Subject to subsection 4, where in the case of any action for which a period of limitation is prescribed by this law, either
(a) The action is based upon fraud of the defendant; or
(b) Any fact relevant to the Plaintiff’s right of action has been deliberately concealed from him by the defendant: or
(c) The action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the Plaintiff has discovered the fraud, concealment  or mistake (as the case me be) or could with reasonable diligence have discovered it.”
In instant case the fact of massive deductions and the exact amounts deducted and paid to the Appellants in settlement of the debt were concealed from them even on the Appellants pleadings in a manner suggesting that they have a lot to hide in this case to the detriment of the Appellants who had done everything to discharge their obligations to the Respondents but the Respondents are now applying all sorts of subterfuges to deny the Appellants the benefit of their labour. Besides, it was not until the 8th Day of November, 2002, that the Federal Government wrote to the Plaintiffs/ Appellants by Exhibit HAG2 directing that Appellants should go back to Respondents for the payment of their indebtedness.
Thus, as rightly submitted by the learned Counsel for the Appellants, and as contained in Particular (g) of Ground One of the Grounds of Appeal; the Appellants were only aware that the Agents of the Abia State Government were no longer willing to settle the Respondents’ indebtedness on the 8th of November, 2002 when the received the letter from the said Agents. Accordingly, notwithstanding the well reasoned Ruling of His Lordship of the lower Court, the Cause of action really accrued on the 22nd of November,2002 for purposes of the Limitation of action Law of Abia State. Therefore, as at the 14th day of April, 2005 when the Appellants commenced their action they were not barred either by the Limitation Law of Abia State of Nigeria, CAP. 24, 1991-2000 or that of England of 1939.
This Court had deprecated the antics of the Respondents in the similar case of Khalid  V.  Al-Travels & Tours Ltd. & Anor. (2014) LPELR 2233 (CA) Per Abiru JCA of Kaduna Division who held following the authorities of Kenfrank (Nig.) Ltd. V.  Union Bank of Nigeria (2002) 15 NWLR (Pt. 789) 46, Sanyaolu V.  Adekunle (2006) 7 NWLR (Pt. 980) 551; Ayinde & Ors.  V. Adigun (1993) NWLR (Pt. 313) 516 (1993) 11 S.C.N.J 1 and Okechuku V. Onuorah (2000) LPELR 2431 (S.C.) (2000) NWLR (Pt. 691) 597. (2001) S.C. (Pt. 1) 106; that, it is trite law that a Defendant who has no real defence to an action should not be allowed to disturb and frustrate the Plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed at not offering any real defence to the action but at gaining time within which to continue to postpone meeting his obligation and indebtedness.
In the instant case, the Defendants/Respondents who by their letter of 13th May, 1999 had acknowledged their indebtedness after which the Debt Management Office commenced the process of settlement before the Respondents took their said accredited Agent to Court to stop the deductions of their indebtedness at source; should not be seen to employ all sorts of legal gymnastics and brinkmanship to thwart the course of justice.  After all, the Respondents have benefitted from the Appellants largess but are now turning round to pay them with ingratitude.  Having not been aware of the exact amount deducted from the Abia State monthly Allocations from the Federation Account, time cannot run against the Appellants until they were even aware that the Respondents’ Agents had reneged on the settlement of the debt in November, 2002.
Besides by invoking the Limitation Law to frustrate the payment for a contract genuinely entered into between a Nigerian State Government and Foreign Development Partners which contract was duly completed and the project commissioned since 1986, would further dent our image in the international community and scare away genuine investors.
The Learned Counsel for the Appellant also introduced some other dimensions as to why the Limitation Law of Abia State should not apply to the transaction between the parties in that Clause 25(3) of Exhibit HAG 1 provides that the Respondents covenanted to waive all rights to immunities in respect of any legal action or proceedings arising out or in connection with the contract or the issue of any process in connection with such action or proceedings.  In the same sub-clause (3), and the Learned Counsel for the Appellants has alluded to that, such waiver of rights to immunity and the making or enforcement, execution of any order or judgment in such action or proceedings are subject to and should be “to the full extent permitted by the laws of such jurisdiction.” With the above clause, assuming the Respondents have not concealed some facts which only came to the knowledge of the Appellants from the pleadings of the Respondents in paragraphs 5(b) and (c) of the Respondents Statement of Defence, Section 18 of the Abia State Limitation Law ought to have applied to terminate the proceedings as the lower Court had done.
On the question of Waiver, it would have been against public policy to waive the applicability of the provision of a law enacted by the Legislative Arm of the Abia State government which confers a benefit to the general public and not a private benefit.  See Lord Wright in the case of Vita Food Products Inc. V. Unus Shipping Co. Ltd (supra)  at pages 521 – 523.  The Supreme Court had in the case of Auto Import Export V. Adebayo (2005) 19 NWLR (Pt. 959) 44; explained what constitutes waiver thus: “Waiver is defined as the abandonment of a right. However, to amount to a waiver – express or implied, two elements it is settled, must co-exist, namely; (i) the party against whom the doctrine is raised, must have knowledge or be aware of the act or omission which constitutes the waiver and (ii) he must do some unequivocal act adopting or recognizing the act or omission.  See, Olatunde  V. Obafemi Awolowo University (1985)  5 NWLR (Pt. 567) 178.”
Speaking specifically about the question as to whether the Respondents could waive the applicability of immunity against actions commenced beyond the statutory period provided therefor by the Statute of Limitation like the Limitation Law of Abia State CAP. 24, Laws of Abia State,Uwaifo, J.S.C.  posited on the settled position of the law in Menakaya V.  Menakaya (2001) 16 NWLR (Pt. 738) 203; that:
“When therefore it is argued that a statutory provision has been waived, it has to be considered whether the statute confers purely private or individual rights which may be waived or whether the statutory provision confers rights of a public nature as a matter of public policy.  If it is the latter, the provision of such statute cannot be waived as no one is permitted to contract out of or waive a rule of Public Constitutional Policy.  See, A-G Bendel State V. A-G, Federation (1981) 10 S.C. 1 and Ogbona  V.  A-G. Imo State (1992) 1 NWLR (Pt. 220) 647.”
From the dictum of the Emeritus Law Lord in the above cited cases, the law is trite that whereas a private right can be waived, a right statutorily conferred for the benefit of the general public, like Section 18 of the Limitation Law of Abia State cannot be so waived.  See, K.T. Ind. Plc.  V. The Thug Boat M/V Japaul B” (2011) 9 NWLR (Pt. 125) 133 and Olufeagba  V.  Abdul-Raheem (2009) 18 NWLR (Pt. 1173) 384, Akindele  V.  Abiodun (2009) 11 NWLR (pt. 1152) 356.
The Learned Counsel for the Appellants cannot therefore be heard to so submit that the Respondent had contracted to waive the right to invoke the Limitation Law to bar the proceedings or Suit commenced beyond the Limitation period.  The part of sub-clause (3) of Clause 25 of the contract incorporating such terms is therefore illegal and null and void assuming that even the Limitation Law can be invoked in this case.
On the submission touching on the application of the Rome Convention 1980 to which England subscribed, there is no doubt that SMITH’S CONFLICT OF LAWS 2ND EDITION, by John O’Brien at pages 345 and 346 makes reference to that convention to the effect that by Articles 10 (1)(a)(b) and (d):
“1) the law applicable to contract shall govern in particular:
(a) Interpretation
(b) Performance
(c) The various ways of extinguishing obligations and prescription and limitation of actions.”
However, the Learned Counsel forgot or deliberately refused to mention sub-sub Section (c) and sub-section 2 of the said Article which clearly provide that:
“1(c) The law applicable to a contract shall govern in particular
(a)…
(b)…
(c) Within the limits of the powers conferred on the Court by its procedural law, the consequences of the breach, including the assessment of damages in so far as it is governed by rules of law.”
2. In relation to the manner of performance and steps to be taken in the event of a defective performance, regard shall be had to the law of the country in which performance takes place.”
I am also aware having read the above cited that the Learned author wrote in paragraph one (1) of page 346 thereof that:
“The law applicable to the contract under the Rome convention, whether chosen by the parties or found in default of choice and including any mandatory rules imported into it, governs the substance of the obligation between the parties. The interpretation of the contract, its performance, frustration, the ways in which the obligation may be extinguished, prescription and the limitation of actions are all matters for the applicable law.”
The above excerpts of the cited would have been germane  if the applicable law and jurisdiction chosen by the parties were absolutely English law and the High Court of Justice, England, but by Clause 25(3) of the contract, parties had subscribed to alternate or concurrent jurisdictions of either the High  Court of England or the country where the contract was performed and the lex fori of that country (in this case  Abia State of Nigeria) and the choice of law assuming the English law was absolute was still by Article 10)(1)(c) of the Rome Convention, 1989 subject to limits of the powers conferred on the Abia State High Court by its Procedural Law.
After all, even the Learned Author of CONFLICT OF LAWS at the same page 346 paragraph 2 which I shall also quote for the avoidance of any doubt hereunder explained that:
“The Rome Convention’s provisions much resemble those which common law had established.  One provision, however, seems peculiar to the English lawyer.  The applicable law also governs “within the limits of the powers conferred on the Court by its procedural law, the consequences of the breach, including the assessment of damages, in so far as it is governed by the rules of law (Art. 10 (1) (c) refers.)”
It is  therefore not beyond argument as erroneously posited by the Learned Counsel for the Appellants, that based on the law chosen by the parties to the agreement or that in the face of conflict of laws, the English Statute of Limitation  is the one applicable to the transaction between the parties.  The Learned Trial Judge did not err in invoking the Abia State Limitation had as the parties themselves did not make the applicability of the English Law absolute to the transaction by virtue of Clause 25(3) thereof.
I am only minded to resolve this Issue in favour of the Appellant by virtue of Section 31 of the Abia State Limitation Law, CAP 24 in that the Respondents were guilty of concealment of vital facts which would not upon reasonable diligence have been discovered that their indebtedness had been settled by the Debt Management Office Abuja until the Respondents’ pleadings apart from the Appellants being only aware in 2002 that the Debt Management Office had thrown back the settlement of debt to the Respondents.  In any case they (Respondents) never disclosed how much was deducted and how much was paid to the Appellants from their allocation from the Federation Account.  In the alternative, I am of the view that the Respondents cannot approbate at the same time and in the face of uncertainty as to when the cause of action arose since the deductions were continuous until the Appellants decided to sue, the damages which gave rise to the cause of action was continuous and the Appellants were therefore not caught by the Limitation Law of Abia State. I resolve Issue Number One in favour of the Appellant.
ISSUE NUMBER B:  WHETHER THE LOWER COURT WAS RIGHT WHEN AFTER OBSERVING THAT THE SUIT WAS CAUGHT BY ABIA STATE  OF LAW OF LIMITATION ON CONTRACT HELD AS FOLLOWS:
“ACCORDINLY, THIS SUIT IS DISMISSED FOR BEING STATUTE-BARRED AND UNMAINTAINABLE”? (GROUND III OF THE GROUNDS OF APPEAL).
The Learned Counsel on this Issue had argued that the Learned Trial Judge after observing that the statute of limitation removes the right of action, the right of enforcement, the right of judicial relief and leaves the Plaintiffs with bare and empty cause of action then held that the suit was dismissed for being statute barred and un-maintainable.  By the above holding, in his view, if a suit is un-maintainable in a Court it is meant that the Court would not hear or entertain same but the suit cannot be dismissed as it was not heard. He therefore cited the cases of Eminator V. The Nigerian Army & Ors. (1999) 9 SCNJ 52 and Ajuyi V.  Military Administrator of Ondo State (1997) 5 NWLR (Pt. 504) 237 at 254 as well as Niger Care Development Co. Ltd.  V.  Adamawa State Water Board Yola (2003) FWLR (Pt.186) 690 C.A.; to finally submit that if the Court below found out that it had no jurisdiction, the proper order to make was to strike out the suit and not a dismissal since a dismissed suit presupposes that the suit was heard on its merit.
In conclusion he urged the Court to allow the Appeal for the reasons stated in paragraph 6 of the Appellant’s Brief of Argument.

RESOLUTION:
In the resolution of this Issue I must agree with the Learned Counsel for the Appellants on all the authorities cited that where the Learned Trial Judge held that the Suit of the Appellants was statute-barred, the appropriate order to make would have been that of striking out since by his holding that the suit is not maintainable he meant that the Court below was bereft of jurisdiction to entertain and determine the case.  It is also correct as he had contended that since the case was not heard on the merits, a dismissal was not the appropriate order to make but an order of striking out.
However, it would serve no purpose for the Learned Counsel to raise this issue as a ground of appeal in view of point that a suit dismissed without hearing on the merits does not bar a party from re-litigating same except the circumstances are such as we have found ourselves where the suit was dismissed for being statute barred.  The recent Supreme Court decision on Statute of Limitation (See Attorney General Adamawa V. Attorney General Federation (2014) 14 NWLR (Pt.1428) 515 at 554 paras. D – E per Peter Odili JSC,  Ariwoola, JSC at page 567 paras. D – F and Ogunbiyi, JSC at page 568 paras. D – F and 569 paras. F – G; followed a long line of cases like Oshoboja  V.  Amuda & Ors.  (1992) 6 NWLR (Pt. 250) 690; Bello V.  Attorney General Oyo State (1986) 5 NWLR (Pt. 45) 828 at 876; Thomas V.  Olufosoye (1986) 1 NWLR (Pt. 667) 682, Egbue  V.  Araka (1988) 3 NWLR (Pt. 84) 598 at 613 and the locus classicus of Egbe  V. Adefarasin (No. 2) (1987) 1 NWLR (Pt. 47) 1 at 28 per Aniagolu, JSC, cited in Daudu  V.  University of Agriculture Markurdi & Ors. (2002) 17 NWLR (Pt. 796) at 384; held that:
“Therefore, what had been restated in Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at Pp. 20 – 21, paras. H – A would apply and these are:
“Where a party’s action is statute barred the following legal consequences will follow:
(a) The party would lose his right of action;
(b) The party would lose the right of enforcement;
The party would irretrievably lose the right to judicial relief; and
(c) The party would only have an empty cause of action which no Court will assist him to enforce.”
It is also apt at this juncture to further remind the Learned Counsel for the Respondent of the immortal words of Aniagolu JSC, on this vexed question that “….if the action was statute barred by statute, no amount of resort to merit of Appellant’s contention will serve to keep the action in being.”
From the foregoing dicta of the Judicial  Sage (now of blessed memory), where as in this case the Learned Trial Judge held that the Appellants’ suit was statute barred and therefore un-maintainable it simply meant that Appellants suit was a good as dead in perpetuity as not even the forensic expertise of the Learned Counsel can revive it. It mattered not whether the Court below dismissed or struck out the case as the result for purposes of the Limitation Law of Abia State are the same; although as a matter of convention since the issue of whether or not the action was statute barred was one touching on the jurisdiction of the lower Court, the appropriate order that ought to be made was the order of striking out.
This Issue is resolved in favour of the Appellant not because the resolution would have revived a dead claim but purely on legal principles.  The Appeal therefore succeeds same being meritorious.
The Ruling of His Lordship, Hon. Justice Obisike Oji of the Umuahia Division of the High Court of Justice of Abia State delivered on the 15th of November, 2006, dismissing the Suit of the Appellants (then Plaintiffs) for being statute-barred, is hereby set aside.  In its stead I hold that the Suit is not statute-barred by virtue of Section 31 of the Limitation Law of Abia State CAP. 24, Laws of Abia State, 1991 to 2000 amongst other reasons. I hereby order that the Suit shall be remitted to the Honourable, the Chief Judge of Abia State for hearing on the merits or in the alternative the Abia State Government should explore avenues for amicable settlement of the case out of Court in the interest of Justice and over all image of the State in particular and Nigeria in general.
I make no order as to Costs.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment, just delivered by my learned brother, I. I. Agube JCA and I agree with his reasoning and conclusions. I too allow the appeal and abide by the consequential orders in the lead judgment.

FREDERICK O. OHO, J.C.A.: I had the privilege of a preview of the judgment just delivered by my learned Brother, I. I. Agube, JCA with which I entirely agree. For the same reasons given in the said judgment, I will also allow this Appeal. I also endorse all the orders made by my learned Brother.

Appearances

Chief J. C. Ifebunandu Esq, with M. U Ofoegbu Esq.For Appellant

AND

Respondents were not represented by Counsel.For Respondent