AKWA IBOM STATE HOUSE OF ASSEMBLY & ORS v. IMENAM (NIG) LTD (2020)

AKWA IBOM STATE HOUSE OF ASSEMBLY & ORS v. IMENAM (NIG) LTD

(2020)LCN/14511(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/197/2017

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

AKWA IBOM STATE HOUSE OF ASSEMBLY 2. AKWA IBOM STATE GOVERNMENT 3. HON. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE AKWA IBOM STATE APPELANT(S)

And

IMENAM NIGERIA LIMITED RESPONDENT(S)

RATIO

DEFINITION OF THE TERM “STATUTE-BARRED”

The Apex Court in Araka vs. Ejeagwu (2000) LPELR-533 (SC) per Kalgo JSC, defined the word statute barred as being:
“What then is statute barred and of what effect is it? In my interpretation, “statute barred” simply means barred by a provision of the statute. It is usually as to time i.e. the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no avail and has no valid effect. The bar can be lifted or the limit extended only if the statute allows it to be done. Where there was no such extension, the action carried out will be invalid, and the Court will treat as such”.
In essence, where statute prescribes a period within which actions can be brought, commonly called statute of limitation, no legal proceedings can be validly instituted after the expiration of the prescribed period, on the ground that the action is statute barred. See Sulgrave Holdings Inc. Vs. FGN (2012) 17NWLR (pt. 1329) 309. The rationale of the legal principle is designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber. Ezeani vs. NRC (2013) LPELR-22065) (CA) per Pemu JCA. PER BARKA, J.C.A.

WHETHER OR NOT THE JURISDICTION OF A COURT IS CALLED TO QUESTION WHERE A DEFENDANT CONTENDS THAT THE ACTION OF THE PLAINTIFF IS STATUTE BARRED

Furthermore, where a defendant contends that the action of the plaintiff is statute barred, the issue of the jurisdiction of the Court on points of law to determine the matter is being called to question. See Olagunju & Anor vs. PHCN PLC (2011) 10 NWLR (pt. 1254) 113. It is trite therefore that where the jurisdiction of the Court is being challenged in whatever manner, the Court must first halt proceedings, and determine whether it has or lacks the jurisdiction to entertain the matter before it. See Ajayi vs. Adebiyi (2012) LPELR-7811 (SC) per Adekeye JSC. PER BARKA, J.C.A.

WHETHER OR NOT THE OBJECTION TO JURISDICTION OF A COURT CAN BE RAISED AT ANY TIME

Objection to jurisdiction can be activated at any point in time depending on what materials are available in any given situation, for instance on the bases of the statement of claim, evidence received, by way of an application supported by affidavit giving full facts upon which reliance is placed and on the face of the writ of summons where appropriate. See the cases of Ajayi vs. Adebiyi (supra), Izenkwe vs. Nnadozie (1953) 14 WACA 361, AG Kwara State vs. Olawale (1993) 1 NWLR (pt. 272) 645, Kasikwu Farms Ltd vs. AG Bendel State (1986) 1 NWLR (pt. 19) 695, National Bank Nig. Ltd vs. Shoyoye (1977) 5SC 181. The respondent’s counsel argument relying on the decision of Victor vs. FUTA (2015) 4 NWLR (pt. 1448) 1, which is to the effect that a Court is forbidden from going into and determining a substantive claim at the interlocutory stage, which argument was also founded upon by the trial judge in its ruling, though good law, is grossly inapplicable to the instant case. PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the interlocutory ruling of the High Court of Justice, Akwa Ibom State, quorum, Justice Ekaette F. F. Obot in suit No. HU/2/2015, between the Akwa Ibom State House of Assembly and 2 Ors vs. Imenam Nigeria Ltd, delivered on the 7th day of August, 2016. By the said ruling, located at pages 588-590 of the record, the lower Court was of the view that:
‘After reading all the processes filed in respect of the preliminary objection of the defendants/applicants and a careful consideration of all the issues raised, it is my view that this objection having been brought after parties have (sic) period issues, amounts to an attempt to draw the Court into dealing with substantive issues raised in the defence of the defendants as preliminary issue.
From my observation, the issue that the action is a statute (sic) is a substantial issue that has to be demonstrated (sic) evidence given the fact that the plaintiff had proved issues effectively on that point.
It is settled law that Courts are to desist from dealing with substantive issues while deciding

interlocutory matters. It is in this light, that I have resiled from ruling on this issue until evidence has been adduced. The objection at this point is therefore overruled for being premature.’

The facts germane to the appeal before the Court arose as a result of the writ of summons filed under the undefended list pursuant to the provisions of Order 11 Rule 8 (1) and (2) of the High Court (Civil Procedure) Rules, Akwa Ibom State 2009, issued on the 18th day of March, 2015, wherein he claimed as follows:
i. The sum of N13,235,508.00 (Thirteen Million, Two Hundred and thirty five thousand, five hundred and eight naira) being money due and owing from the defendants to the plaintiff.
ii. 10% interest on the judgment debt from the date of judgment until the judgment is paid.

The appellants responded to the writ filed under the undefended list, by filing a notice of intention to defend, pursuant to Order 11 Rule 10 of the High Court (Civil Procedure) Rules, Akwa Ibom State 2009, supported by an affidavit of seven paragraphs deposed to by one Ofonmbuk Anana, a law officer in the chambers of the hon. Attorney General Akwa Ibom State on the

8th of May, 2015.

On the 16th of June, 2015, the Court took arguments from the parties, with respect to the application under the undefended list procedure, and ruled that a defence on the merit was disclosed by the appellants and the matter transferred to the general cause list for trial on the merit. Parties in obedience to the order of Court proceeded to file and exchange pleadings, wherein issues were joined as to whether the action before the Court was statute barred amongst other issues. That notwithstanding, appellants filed a notice of preliminary objection to the hearing of the suit on the 14th of June, 2016 contending that the suit with No. HU/2/2015 was statute barred having been filed more than five years after the accrual of the cause of action, and thereby ousted the lower Court’s jurisdiction to entertain the action.

The Court took arguments on the issue, and on the 7th of December, 2016 rendered the vexed ruling to the effect that the application was premature.

This appeal is therefore a by product of the said decision. Appellant’s extant notice of appeal is the amended notice of appeal filed on the 29th of February,

The records having been deemed transmitted to this Court on the 7th of June, 2017, appellants filed their brief of argument on the 30th of January, 2020 with the leave of Court. On receipt of the respondent’s brief filed on the 29th of October, 2019, appellants filed a reply brief on the 24th of January, 2020.On the scheduled hearing date being the 3rd of June, 2020, Mr. Anietie Inyang, the learned Deputy Director Public Prosecution Akwa Ibom State, who appeared for the appellants, identified and adopted the two briefs filed in urging the Court to allow the appeal, set aside the ruling of the lower Court, and enter judgment dismissing the respondent’s suit with No. HU/2/2015 for being statute barred, and thereby in breach of Section 16 of the Limitation Law, Cap 78, vol. 4 Laws of Akwa Ibom State 2000.
On the same date, there being evidence that the respondent counsel Mary Alfred Etim was duly served hearing notice against the date scheduled for hearing on the 22nd of May, 2020, and learned counsel having earlier filed a respondent’s brief in opposition to the appeal on the 29th of October, 2019, this Court invoked the provisions

of Order 19 Rule 9 sub Rule 4 of the Court of Appeal Rules 2016 deeming the respondents brief as having been duly argued.

From the appellants brief settled by Betty A. Betty, a legal counsel in the Ministry Of Justice Akwa Ibom State, Uyo, and specifically at page 2, thereof, three issues were identified for the Court’s resolution as follows:
i. Whether the Appellant’s preliminary objection filed on the 14th of June, 2016 before the lower Court was premature.
ii. Whether having regards to the respondents amended writ of summons and amended statement of claim, the trial Court did not err in law when he resiled from ruling on the issues raised by the appellants in the preliminary objection.
iii. Whether the respondent’s suit No. HU/2/2015 is not statute barred having offended Section 16 of the Limitation Law Cap 78, vol. 4 Laws of Akwa Ibom State 2000 and having so offended, can and should this honourable Court assuming its powers pursuant to Section 15 of the Court of Appeal Act, Cap 36, Laws of the Federal Republic of Nigeria 2004, proceed and determine in this appeal the appellants preliminary objection in suit No.

HU/2/2015, the materials thereof being present in the records of appeal before your lordships.

In opposing the appeal and in the respondent’s brief settled by Mary Alfred Eti Esq., the three issues formulated by the appellants were adopted for the resolution of the appeal. I would therefore, in the consideration of the appeal be guided by the issues crafted by the appellants and adopted by the respondent.

Issue one.
Whether the Appellants preliminary Objection filed on the 4th day of June, 2016 before the lower Court was premature.
It is the contention of the Learned counsel for the appellant that the preliminary objection was not premature as held by the lower Court. He goes on to contend relying on the authority of Arowolo vs. Akaiyejo (2012) 4 NWLR (pt. 1290) 307, that a defendant who conceives that he has a good ground of law which if raised will determine the action in limine is entitled to raise such a ground in either of the following two ways:
i. He may without filing a defence, apply to strike out the action as disclosing no cause of action or locus standi or standing or
ii. The defendant may also in his statement of defence

rely on any ground of law he considers to be a complete answer to the plaintiff’s claim. The ground will then be argued as a preliminary issue and in the event of it being successful; the plaintiff’s action will end there.

Learned counsel argued that the preliminary objection was premised on the fact that the respondent’s suit was statute barred, having offended the provisions of Section 16 of the Limitation Law Cap. 78, vol. 4 Laws of Akwa Ibom State 2000. He argued also that the kernel of the application was an issue of law which affected the jurisdiction of the trial Court to hear and to determine the matter before it. He contends that the application cannot be said to be premature having been brought timeously. He further contended that the ruling of the lower Court was wrong in that in the determination of the objection, the Court considers only the statement of claim, and not the statement of defence. Hassan vs. Aliyu (2010) 17 NWLR (pt. 1223) 47 @ 619. He goes on to argue that the Court was in error in considering the averments or issues raised by the appellants in their statement of defence to hold that determining the preliminary

objection might descend to making determinations with respect to the substantive suit. Further still that there is no law which prescribed the time within which a preliminary objection can be filed, more so when the challenge is to the jurisdiction of the Court.

Arguing contrariwise, the learned counsel for the respondent argued that Courts are precluded from determining substantive issues at the interlocutory stage. He cited for support the case of Nabore Properties Ltd vs. Peace-Cover Nig. Ltd (2015) 2 NWLR (pt. 1443) 286. He submits that the issue having been raised as the bedrock of the appellant’s defence and answered in the respondents reply, it cannot be determined therefore at the interlocutory stage of the proceedings before the lower Court as that would amount to hearing at the interlocutory stage the substance of the case before it. He further argued that appellant having placed reliance on several letters written to it by the appellants in proof of its case before the lower Court, and going by the reasoning of the lower Court in deferring the ruling, was in consonance with the decision of Victor vs. FUTA (2015) 4 NWLR (pt. 1448) 1 @ 16

which held that a Court is forbidden from going into and determining a substantive claim at the interlocutory stage. He submits that there was no way the lower Court could have determined or settled the issue without touching on the substantive case, and thereby urged the Court to agree with the ruling of the lower Court.

I understand the substance of the appellant’s complaint towards this issue as being the refusal of the lower Court to entertain and rule on its preliminary objection which sought to challenge the jurisdiction of the lower Court on the premise that the action was statute barred. The Apex Court in Araka vs. Ejeagwu (2000) LPELR-533 (SC) per Kalgo JSC, defined the word statute barred as being:
“What then is statute barred and of what effect is it? In my interpretation, “statute barred” simply means barred by a provision of the statute. It is usually as to time i.e. the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no avail and has no

valid effect. The bar can be lifted or the limit extended only if the statute allows it to be done. Where there was no such extension, the action carried out will be invalid, and the Court will treat as such”.
In essence, where statute prescribes a period within which actions can be brought, commonly called statute of limitation, no legal proceedings can be validly instituted after the expiration of the prescribed period, on the ground that the action is statute barred. See Sulgrave Holdings Inc. Vs. FGN (2012) 17NWLR (pt. 1329) 309. The rationale of the legal principle is designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber. Ezeani vs. NRC (2013) LPELR-22065) (CA) per Pemu JCA.

In the instant case, appellant rightly pleaded in the statement of defence, the defence of limitation of action so as to put the other party on notice. It is only then, that appellants filed the preliminary objection seeking for the determination of the issue in limine. That being the case, the Court at that stage is duty bound to determine the point for where positively determined, that puts an end to the

action, and the Court has no jurisdiction to deal with the action filed. See Sulgrave Holdings Inc. Vs. FGN (supra).
Furthermore, where a defendant contends that the action of the plaintiff is statute barred, the issue of the jurisdiction of the Court on points of law to determine the matter is being called to question. See Olagunju & Anor vs. PHCN PLC (2011) 10 NWLR (pt. 1254) 113. It is trite therefore that where the jurisdiction of the Court is being challenged in whatever manner, the Court must first halt proceedings, and determine whether it has or lacks the jurisdiction to entertain the matter before it. See Ajayi vs. Adebiyi (2012) LPELR-7811 (SC) per Adekeye JSC. The reliance on the appellant’s statement of defence, by the trial Court to assume that in resolving the question of whether the action before it is statute barred, is a misapplication of the law. Objection to jurisdiction can be activated at any point in time depending on what materials are available in any given situation, for instance on the bases of the statement of claim, evidence received, by way of an application supported by affidavit giving full facts upon which

reliance is placed and on the face of the writ of summons where appropriate. See the cases of Ajayi vs. Adebiyi (supra), Izenkwe vs. Nnadozie (1953) 14 WACA 361, AG Kwara State vs. Olawale (1993) 1 NWLR (pt. 272) 645, Kasikwu Farms Ltd vs. AG Bendel State (1986) 1 NWLR (pt. 19) 695, National Bank Nig. Ltd vs. Shoyoye (1977) 5SC 181. The respondent’s counsel argument relying on the decision of Victor vs. FUTA (2015) 4 NWLR (pt. 1448) 1, which is to the effect that a Court is forbidden from going into and determining a substantive claim at the interlocutory stage, which argument was also founded upon by the trial judge in its ruling, though good law, is grossly inapplicable to the instant case. What is being attacked is founded on issues of law, and not that on facts. I agree with the appellant that the trial Court was in gross error holding that appellants preliminary objection was premature. This issue is resolved in favour of the appellants.

Betty A. Bassey Esq. argued issues 2 and 3 simultaneously, and likewise responded to by the respondent:
Whether having regards to the respondents amended writ of summons and amended statement of claim, the trial

Court did not err in law when he resiled from ruling on the issues raised by the appellants in the preliminary objection.
Whether the Respondent’s suit No. HU/2/2015 is not statute barred, having offended Section 16 of the Limitation Law Cap. 78 vol. 4, Laws of Akwa Ibom State 2000 and having so offended, can and should this honourable Court, assuming its powers pursuant to Section 15 of the Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria 2004, proceed and determine in this appeal the appellant’s preliminary objection in suit No. HU/2/2015 the materials thereof being present in the records of appeal before your Lordships.

It is the submission of the learned counsel for the appellant that the trial Court erred resiling from ruling on the issues raised in the preliminary objection, on the ground that appellants must adduce evidence. He submits also that it is the writ and statement of claim, (originating process) that is looked at in determining whether the Court had jurisdiction or not to entertain the suit. Counsel referred to Saulawa JCA in Okorocha vs. UBA Plc (2011) 11 NWLR (pt. 1228) 348 @ 373, to the effect that

in determining whether a Court has jurisdiction or not to entertain a suit before it, it is the originating process, i.e the writ of summons or statement of claim that is considered. He submitted further on this that in the consideration of whether the suit is statute barred or not, the Court considers the date the cause of action arose as stated in the originating processes and compares the same with the date the suit was instituted. The case of Hassan vs. Aliyu (2010) 17NWLR (pt. 1223) 547 @ 619 was relied upon. Counsel cited the case of Ekele vs. Iwodi (2014) 15NWLR (pt. 1431) 557 @ 577 to contend that it is not the evidence of the defendant or his pleadings that is considered in resolving the issue of whether the suit filed is statute barred. Emphasizing the point, learned counsel referred to the cases of Ibrahim vs. Lawal (2015) 17 NWLR (pt. 1489) 522, and Adigun vs. Ayinde (1993) 8 NWLR (pt. 313) 516 @ 535, where the Supreme Court held that:
“In order to determine the period of limitation, one has to look at the writ of summons and the statement of claim to see when the wrong was committed which gave the plaintiff the cause of action and

comparing that date with the date on which the writ was filed. This can be done without taking oral evidence from witnesses. If the time allowed on the writ is beyond the period allowed by the limitation law, then the action is statute barred”.

Counsel maintained that the lower Court erred in dodging the determination of the issue raised by the preliminary objection imposed on him by law as stated in Hani Akar Enterprises Ltd vs. Indo-Nigeria Merchant Bank Ltd (2011) 1 NWLR (pt. 1228) 302 @ 322.

He urged the Court in the light of the foregoing to invoke the provisions of Section 15 of the Court of Appeal Act 2004, to determine the appeal. The case of Bassey vs. Vitamalt Plc (2017) LPELR – 42545 (CA) was cited in support of the legal principle. Furthermore with respect to the argument by the respondent that relying on Section 28(5) (a) of the Limitation Law, counsel referred the Court to the provisions of Section 28 (7) of the same Law, contending that the section gave a better guide in interpreting the earlier provision. Learned counsel from the foregoing opined that exchange of correspondences and negotiation does not stop time from

running, further stating that the defendant acknowledged the indebtedness in July, 1983.

By and large, the Court is urged upon to allow the appeal and set aside the ruling of the lower Court delivered on the 7th of December, 2016 and to enter judgment dismissing the respondents suit for being statute barred and offensive to Section 16 of the Limitation Law applicable to Akwa Ibom State.

Mrs. Etim, for the respondent on the two issues though conceding to the fact that an action is said to be statute barred when it is instituted at the expiration of the time allowed by the relevant law, but in respect to the case at hand, time had not expired. Learned counsel acknowledged the fact that the statute of limitation gives five years from the date the cause of action accrued, but submits that there are exceptions to the general principle. He referred to the provisions of Section 28 (5) (a) of the Limitation Laws of Akwa Ibom State 2000, which stipulated that:
“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 or makes any

payment in respect of it, the right shall be treated as having accrued on and not before the date of the acknowledgement or payment”.

Counsel referred to the statement of claim filed by the respondent, and in particular pages 412 – 514 thereof containing the facts that gave rise to the action before the lower Court. Learned counsel submitted that the act of verifying the said contracts and the subsequent recommendation for payment by the appellants are by themselves acknowledgment of the debt which has given rise to the claim by the respondents. He alluded to the decision of Ethiopian Airlines Nig. Plc vs. Afribank Nig. Plc (2006) 17 NWLR (pt. 1008) 245 @ 249 to argue that time begins to run when all the facts that happened which are material to be proved to entitle the plaintiff to succeed. Further referring to the case of NSITFMB vs. KLIFCO Nig. Ltd (2010) 13 NWLR (pt. 1211) 307 @ 315, counsel argued that where there is acknowledgment of a debt, the law of limitation does not extinguish the right to recover a debt, and also that an acknowledgment of debt that can revive a debt to recover the debt by action must be unconditional and

unequivocal. Learned counsel drew the Court’s attention to the letter from the appellants dated the 9th of June, 2010 and addressed to the respondent, contending that without doubt constitutes acknowledgment of indebtedness. Counsel further drew the Court’s attention to the appellant’s letter of the 17th of May, 2013, and the 11th April, 2014 asking the Accountant General of the 2nd appellant to act on the report of the verification committee and to pay the respondent his due. He submits that by these letters of acknowledgment, the respondent’s right of action is treated as having accrued on the date of the acknowledgment. Counsel then cited the provisions of Section 16 of the Limitation Law in focus, contending that the cause of action which accrued sometimes in the year 2006, after the execution of the contract was extended to the 11th of April, 2014, within the time allowed by the law. The respondent posited on the argument by the appellants that none of the reports emanated from the appellants, and that the said reports were not ratified or adopted, counsel for the respondent contended that the issue can only be cleared by calling

evidence, and the lower Court is right in ruling the preliminary objection as being premature. It was also contended relying on BFI Group Corp. Vs. BPE (2012) 18 NWLR (pt. 1332) 209 @ 222, that where by words or conduct a party to a transaction makes to another an unambiguous promise or assurance which is intended to affect the legal relations between them and the former acts upon it by altering his position to his detriment. Also making reference to the case of Nabore Properties Ltd vs. Peace-Cover (Nig) Ltd (supra) @ 297, counsel reiterates the fact that it is the statement of claim that determines the jurisdiction of the Court, and it is enough that the averments contained therein, if true confer jurisdiction on the Court, and the Court need not try to confirm the truth of those averments at that point. From the foregoing therefore, counsel urged the Court to hold that the respondent’s right of action has not been extinguished by the limitation law.

By way of reply on points of law, appellant’s counsel made reference to the case of Oloruntoba-Oju vs. Abdulraheem & Ors (2009) LPELR-2596 (SC) on the purport of the word subject to, contending that

Section 28(5) is subject to Section 28(6). He argued that the cause of action accrued eight years ago contrary to the arguments of the respondent and the exchange of correspondence does not stop time from running. Eboigbe vs. NNPC (1994) LPELR-992 (SC). He thereby urged the Court to sustain the preliminary objection.

In the resolution of issue one, I did point out that the issue of jurisdiction being fundamental, can be raised at any time and at any stage of the proceedings, and once raised anything else has to stop to give the prime position of hearing to the jurisdictional issue. See Ajayi vs. Adebiyi (supra), Oloba vs. Akereja (1988) 3NWLR (pt. 84) 508. On whether the trial Court was right when he resiled from ruling on the issues raised by the appellant owing to the contents of the amended writ of summons and statement of claim, the case of Elabanjo & Anor vs. Dawodu (2006) LPELR-1106 (SC), which is to the effect that:
“Objection to jurisdiction could be taken on the basis of the statement of claim as in Izenkwe V. Nnadozie (1953) 14 WACA 361 at 363; it could be taken on the evidence received as was the case in Barclays Bank of Nigeria Ltd V. Central Bank of Nigeria

(1976) 1 All NWLR 409; or by a motion on notice supported by affidavit giving the facts upon which reliance is placed as in National Bank (Nigeria) Ltd. V. Shoyoye (1977) 5 SC 181 at 194. In fact it could be taken even on the face of the writ of summons before filing statement of claims. See Attorney General, Kwara State V. Olawale (1993) 1 NWLR (pt. 272) 645 at 674- 675 and the recent decision in Arjay Ltd. V. Airline Management Support Ltd. (2003) 7 NWLR (Pt. 820) 577 at 601 where Onu, JSC was confronted with the issue of raising preliminary objection on jurisdiction before a Federal High Court before filing a statement of claim as required by Order xxvii, of the Federal High Court Rules, Cap:134, Laws of the Federation of Nigeria, 1990, had this to say- “I agree with the appellants to the effect that the preliminary objection in question challenged the jurisdiction of the trial Court to entertain the action. This is not a demurrer application in which case there should be a statement of claim in place, the facts of which the appellants would be required to admit before bringing their objection. I agree with the

appellants’ submission that there is a difference between an objection to the jurisdiction and a demurrer. I also agree with them that an objection to the jurisdiction of the Court can be raised at any time; even when there are no pleadings filed and that a party raising such an objection need not bring application under any rule of Court and that it can be brought under the inherent jurisdiction of the Court. Thus, for this reason, once the objection to the jurisdiction of the Court is raised, the Court has inherent power to consider the application even if the only process of Court that has been filed is the writ of summons and affidavits in support of an interlocutory application’’.
The above statement of the law reiterates the legal position that once the jurisdiction of a Court to entertain any action is raised, the Court at that stage has jurisdiction only to determine whether it had jurisdiction or not. That becomes the central issue before the Court which must of necessity be resolved. Issue two is similarly determined in favour of the appellant.

Lastly, can this Court be tempted to invoke its powers under the provision of

Section 15 of the Court of Appeal Act 2004 as prayed for by the appellant, and to which the respondent does not appear to object to? Let me however place my reservation at the way and manner learned counsel framed issue three, in that counsel in framing the issue was presumptuous to say the least, affirming in his own right that the suit offended Section 16 of the Limitation Law and thereby asking the Court to still determine same. That notwithstanding, I understand the issue at stake to be whether respondent in filing suit No. HU/2/2015, offended the provisions of Section 16 of the Limitation Law, applicable to the Court of trial, and whether the lower Court having resiled from answering the pertinent question, this Court can validly invoke the provisions of Section 15 of the Court of Appeal Act 2004 to determine the same.
Now Section 15 of the Court of Appeal Act, 2004, stipulates that; the Court of Appeal may, from time to time make any order necessary for determining the real question in controversy in the appeal. However, before the Court can invoke its powers under the section, the Court must firstly consider whether the question seeking for

resolution originated from a ground of appeal, that the High Court from which the matter emanated had jurisdiction in the matter, as jurisdiction of the High Court is a pre-requisite for the invocation of the section, there must be the necessary materials to consider and adjudicate upon and the need for expeditious disposal of the case must be of paramount consideration. See Ezeigwe vs. Nwawulu (2010) 4NWLR (pt. 1183) 159, also reported as (2010) LPELR-1201 (SC), Bassey vs. Vitamalt Plc (2017) LPELR-42545 (CA). Thus in the case of Faleye vs. Otapo (1995) 3 NWLR (pt. 381) 1, per Ogundare JSC, the Apex Court held the view that:
“It seems to me that the primary object of the section is to enable the Court of appeal to make any order or give such judgment which the Court below ought to have given for the speedy and satisfactory dispensation of justice according to law, without having to remit the suit back to the trial Court for any appropriate action which the circumstance of the case may demand. It is therefore my view that the general purpose of these powers conferred on the Court of Appeal, is to permit that Court to exercise all the jurisdiction of

a Court of first instance with regard to the appeal before it. Accordingly the Court of Appeal may only make orders or give such judgments which the Court of first instance at all material time is entitled under the law and rules to give, but not otherwise. See Jadesimi vs. Ekotie-Eboh (1986) 1NWLR (pt. 16) 264 @ 276”. See also Adams vs. Umar (2008) LPELR – 3591 (CA).
The Apex Court in the case of Ado Ibrahim & Company vs. Bendel Cement Company Ltd (2007) LPELR-188 (SC) was favourably disposed to the section, having held that Section 15 of the Court of Appeal Act 2004, is a practice legally backed up by law and judicial precedence. It is resorted to in order to avoid unnecessary delays in the final settlement of disputes. It is a potent and very progressive means of quick dispensation of justice especially in view of the fact that Courts are inundated with long list of cases, per Muhammad JSC.
The appellant before this Court, prays that this Court invokes its powers under Section 15 of the Act, and by so doing determine whether the suit before the lower Court is competent. It was posited by the appellants that all the materials for

adjudicating on the issue are before the Court. On the question therefore, whether the trial Court had jurisdiction to try the issue, I will be swayed by the dictum of Muhammed JSC, in the case cited above, and answer in the affirmative, because the trial Court had jurisdiction to hear and determine whether the suit before it is statute barred or not. I also hold the view that all the materials necessary for the invocation of the Courts powers are placed before the Court. I agree with my Lord Muhammad JSC of the Supreme Court that in invoking the provisions of Section 15 of the Act, will progressively aid the quick dispensation of the justice of the case.

My Lords, having therefore invoked the powers provided for me under Section 15 of the Court Of Appeal Act, 2004, Let me proceed and determine whether the suit before the lower Court was statute barred or not in view of the stipulations of Section 16 of the Limitation Law of Cross River State 2000.
All counsel made reference to Section 16 of the Limitation Laws of Akwa Ibom State 2000, which provides that:
“No action founded on contract, tort or any other action not specifically provided

for in parts 1 and 2 of this law shall be brought after the expiration of five years from the date on which the cause of action accrued”.
The appellants placed the date of the cause of action sometimes in the year 2007, while the suit was instituted in 2015, which amounted to eight years, well above the period allowed by the limitation Act, while the respondents points to the year 2014 being the year appellants acknowledged the debt owed. A cause of action has been defined by this Court and the Apex Court in numerous countless cases. Of recent, a cause of action has been taken to refer to the facts or combination of facts which the plaintiff must adduce in order to be entitled to the reliefs sought. See Maigari vs. Malle (2019) 16 NWLR (pt. 1697) 69 @ 89, Uwazuruonye vs. Governor of Imo State (2013) 8 NWLR (pt. 1355) 28 @ 56-57. Generally time will begin to run from the date of the accrual of the cause of action. See Nigerian Ports Authority Plc vs. Lotus Plastics Ltd (2005) 19 NWLR (pt. 959) 158, Messrs U. Maduka Ent. Nig. Ltd vs. BPE (2019) 12 NWLR (pt. 1687) 429 @ 445. I have earlier alluded to the case ofElabanjo vs. Dawodu (supra), which

relied on Izenkwe vs. Nnadozie (1953) 14 WACA 361 @ 363, which held that the statement of claim, evidence taken or received or facts elicited from a motion brought on notice provides where the Court looks at in determining when the cause of action accrued, but not the statement of defence. InAsaboro vs. Pan Ocean Oil (Nig) Ltd (2017) 7NWLR (pt. 1563) 42, Nweze JSC on the issue held that:
“…to determine whether the action is statute barred and in doing this, the Court is expected to peruse the originating process, statement of claim together with the evidence on record where that has taken place to know when the wrong in question occurred and compare it with the date the originating process was filed in Court”.
The action before the lower Court as can be seen from paragraphs 1 – 15 of the statement of claim, is anchored on simple contract between the appellants on one hand and the respondent for the production of copies of indexed weekly pocket diaries, awarded on the 13th of July, 2006. A further contract for the supplies of more copies of the quarto Desk diaries was contracted by the appellants to the respondent on the same

date. Bills were thereafter presented to the 1st respondent upon the completion of the contract, and specifically by paragraphs 14 and 15 of the amended statement of claim, the claimants averred that:
14. Soon after the plaintiff executed the contract there was a change in the leadership of the 1st defendant and in the government of Akwa Ibom State.
15. The new leadership of the 1st defendant and the new Government refused to pay for the contracts awarded by the past leadership and Government until such contracts were verified.
Appellants now hold the view, which view they pray the Court to employ, that the cause of action arose from the date, appellants refused paying for the contract sum. The respondent on the other hand seeks to leverage on the contents of paragraphs 21, 24 and 25 of the statement of claim, whereby it was averred that:
21. The defendants had promised to pay the plaintiff the sum if the committee verifies the contracts and recommends payment.
24. The plaintiff further avers that based on the averments in paragraph 21 above, the plaintiff on the 6th day of February, 2014 wrote a letter to the immediate past SSG,

Mr. Udom Gabriel Emmanuel seeking for further approval for the payment of the 2007 contracts the plaintiff had executed for the 1st Defendant. The plaintiff hereby pleads the said letter and shall rely on same at the trial.
25. The plaintiff states that further approval for payment was given by the immediate past SSG, Mr. Udom Gabriel Emmanuel via a letter Reference No. SSG/AKS/S/26/S.2/Vol.1/201 of 11th April, 2014. The said letter was written to the Accountant General of the 2nd Defendant who pleaded with the Plaintiff and informed the Plaintiff that payment will be made. The Plaintiff hereby pleads the said letter and gives notice to the Defendants to produce same, and to maintain that the cause of action accrued on the 11th of April, 2014, going by the stipulation in Section 28(5)(a) of the Limitation Act 2000.
The Supreme Court in Idiagbon vs. APC (2019) 18NWLR (pt. 1703) 102 @ 119, per Peter-Odili JSC looked at a situation not very dissimilar to the instant case, and reasoned that:
This situation impels one to call attention to the fact that it is trite and over-flogged that a party who is alleging that the claimant’s action like

the present one is statute barred, need not satisfy the Court that the claimant had knowledge of the act/cause of action which made his action caught by the limitation law. Also to be said is that a cause of action is taken to have accrued or the date or when the breach or any step taken would warrant the person adversely affected by such breach to seek relief in Court in assertion or protection of the legal right that had been infringed upon. That is to say that a party who has been seeing certain hostile moves taken against his interest must be vigilant so as not to have that interest scuttled without a whimper. As the saying goes, equity protects and aids the vigilant and does not aid the indolent or layabout. See Akibu v. Azeez (2003) FWLR (Pt. 149) 1490 at 1516 (2003) 5 NWLR (Pt. 814) 643;, Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 at 142;
In other words, a party who is alleging that the claimants action is statute barred, need not satisfy the Court that the claimant had knowledge of the cause or act which generated to his action being caught up by a statute of limitation. The cause of action would be taken to have accrued on the date when the

breach or any step taken would warrant the person adversely affected to seek relief in Court on assertion or protection of the legal right that had been infringed on. See Idiagbon vs. APC (supra) @ 119. Where the facts stated in the statement of claim is assiduously considered, it becomes obvious, that the cause of action with respect to the instant action can be said to have accrued when the appellants refused to pay for their indebtedness sometimes in the year 2007, but before reaching such a decision, the position advanced by the respondents to the objection cannot be ruled out, in view of the provisions of Section 8(5)(a) of the Limitation Act, which seeks to extend and or exclude the time limited by the law. To that end, Section 21 of the Law provides that:
Parts 1 – 111 of this law shall have effect subject to the provisions of this part (pt. IV).
The learned counsel for the respondent is therefore on solid ground having resorted to the provisions of Section 28 (5) (a) of the same Limitation Law, to argue that the right of action accrued on the date of the acknowledgement of the debt being the 11th of April, 2014. The section for

clarity is to the effect that:
Subject to subsection (6), where any right of action has accrued to recover-
(a) Any debt or other pecuniary claim; or
(b) Any claim to the estate of the deceased person…
And the person liable or accountable for the claim acknowledges the claim or makes any payment in respect thereof; the right shall be treated as having accrued on and not before the date of the acknowledgment or payment. In clear terms, the argument of the learned counsel for the appellant is tantamount to saying that Section 16 of the Limitation Law is further qualified by the further provisions of Section 28 (5) (a) of the same Law. I am inclined to accept to accept that such is the intention of the law makers. For indeed Sections 28 (6), dealing strictly with the payment of rent or interest due, and the further provisions of Section 28 (7), put the issue to rest by providing that:
“Subject to the subsection (6) a current period of limitation may be repeatedly extended under this section by further acknowledgments or payments, but a right of action, once barred by this law shall not be revived by any subsequent

acknowledgment or payment”.
The import of the cumulative sections under reference still boils to the fact that once a statute provides for the institution of an action within a stipulated period, proceedings shall not be brought after the time prescribed by such statute. This is because any action brought outside the time prescribed translates to the fact that the right of the plaintiff or the injured person to commence the action would have been extinguished by the operation of such law. See Ibrahim vs. JSC (1998) 14 NWLR (pt. 584) 1, Egbe vs. Adefarasin (no. 2) (1985) 1 NWLR (pt. 3) 549, Awolola vs. Governor, Ekiti State (2019) ALL FWLR (pt. 971) 1 @ 37. In any case, even though the respondents were fully aware of their indebtedness as way back as the year 2007, but still insisted on not paying until the contracts were verified, and were eventually verified and the debts acknowledged on the 29th of June, 2010, and further on the 11th of April 2014, all within the five year term limit imposed, the action having been instituted on the 14th of March, 2015. Government is continuity; it is the people in governance that change with time. The government of

Cross River State before the year 2007 and the present one by law is one and the same. The contrary argument by the respondent to that effect that they never acknowledged being in debt to the appellants, cannot be right in that regard. In my view, the period of verification though likened to or being akin to a period of negotiation, which as held in the case of AG Adamawa State vs. AG of the Federation (2014) 14 NWLR (pt. 1428) 515 @ 566, the time expended in the variation is not reckoned with, but the time the debt is acknowledged. I agree with the learned counsel for the respondent that the time frame granted under Section 16 of the Limitation Law, is not absolute, but subject to Section 21 of the same law. In our case, Section 28(5) (a) offers such an exception to the general rule. Furthermore the law is crystallised to the effect that where there an acknowledgement of a debt, and in compliance with Section 29 of the Limitation Law, same is put in written form by the party that is liable, to the party who is being owed, the right to the recovery of such debt commences from that date. See NSITFMB vs. Klifco Nig. Ltd (2010) 13 NWLR (pt. 1211) 307 @ 315.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

The conclusion to the whole matter is that appellant’s having acknowledged its indebtedness sometimes on the 29th of June, 2010 and the 11th April 2014, and it being evident that the matter was filed in Court on the 14th of March, 2015, calculating from whichever of the dates the debt is acknowledged, the action before the lower Court was filed within the time allowed by law, and not statute barred as contended. The end result is that issue three being the determinant issue, the appeal succeeds in part to the extent that the case was rightly and validly before the lower Court and the Court imbued with the requisite jurisdiction to try the case.

I thereby order that this case be remitted to the lower Court to proceed and to determine the case on its merit.
I make no order on costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother HAMMA AKAWU BARKA JCA.
I agree with the reasoning and conclusion reached in the judgment.

I also agree that the case be remitted to the lower Court to proceed and to determine the case on its merit. I abide with the order as to

costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have read in draft the leading judgment of my learned brother, Hamma A. Barka, JCA, just delivered. I agree entirely that once the jurisdiction of a Court to entertain any action is raised, the Court at that stage has jurisdiction only to determine whether it had jurisdiction or not.

I also endorse the reasoning and conclusion that the appellants having acknowledged their indebtedness sometimes on the 29th of June, 2010 and the 11th of April 2014 while the matter was filed in Court on the 14th March, 2015, same was still within the five year term stipulated in the extant limitation law. Hence, the action was not caught up by the said limitation law.

I too allow the appeal in part and abide by the consequential orders contained in the leading judgment.

Appearances:

Anietie Inyang, Deputy Director Public Prosecution, Akwa Ibom State For Appellant(s)

No legal representation for the Respondent For Respondent(s)