AKWA IBOM STATE HOUSE OF ASSEMBLY v. MANAGEMENT INFORMATION SYSTEM COMPANY LIMITED (2019)

AKWA IBOM STATE HOUSE OF ASSEMBLY v. MANAGEMENT INFORMATION SYSTEM COMPANY LIMITED

(2019)LCN/13066(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/C/170/2015

RATIO

JURISDICTION: IN DETERMINING WHETHER A COURT HAS JURISDICTION, THE CLAIMS OF THE CLAIMANT SHOULD BE CONSIDERED ALSO

The parties to this case are agreed on the point of law that in considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it by critically looking at the Writ of summons and the Statement of Claim. See GAFAR v. GOVT, KWARA STATE (2007) 4 NWLR (Pt. 1024) 375 SC; ONUORAH v. K.R.P.C (2005) 6 NWLR (Pt. 921) 393 SC; TUKUR v. GOVT. OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517 SC; NKUMA v. ODILI (2006) 6 NWLR (Pt. 1069) 561; OLORUNTOBA-OJU v. NIGER STATE GOVT. (2008) 13 NWLR (Pt. 1103) 111 SPDCN LTD. v. GOODLUCK (2008) 14 NWLR (Pt. 1107) 294.PER MOJEED ADEKUNLE OWOADE, J.C.A.

JURISDICTION: WHEN SHOULD AN OBJECTION TO A JURISDICTION BE TAKEN BY THE COURT
Thus, in the case of NDIC v. C.B.N (2002) 7 NWLR (Pt. 766) 272 @ 296 Uwaifo J.S.C speaking for the Supreme Court said:
To say, therefore that objection to jurisdiction should only be taken after the statement of claim has been filed is a misconception. It depends on what materials are available. It could be taken on the basis of the Statement of Claim. It could be taken on the basis of the evidence received?.. or by a motion supported by affidavit giving the fact upon which reliance is pleaded. But certainly it could be taken on the face of the Writ of Summons where appropriate
See also NONYE v. ANYICHIE (2005) 2 NWLR (Pt. 910) 623; ARJAY LTD. v. AMS LTD. (2003) 7 NWLR (Pt. 820) 577; AWOYEMI v. FASUAN (2006) 13 NWLR (Pt. 996) 86; A-G. BENUE STATE v. UMAR (2008) 1 NWLR )Pt. 1068) 311; FCE, OYO v. AKINYEMI (2008) 15 NWLR (Pt. 1109) 21.PER MOJEED ADEKUNLE OWOADE, J.C.A.

JURISDICTION: SITUATIONS UNDER WHICH AN OBJECTION TO JURISDICTION CAN BE RAISED
All the above cases debunked the common and traditional view that only the statement of claim determines the jurisdiction. Put in another way, an objection to the jurisdiction of a Court can be raised in any of the following situations:
(a) on the basis of the statement of claim, or
(b) on the basis of evidence received;
(c) by motion supported by affidavit setting out the facts relied on; or
(d) on the face of Writ of Summons where appropriate, as to the capacity in which the action was brought, or against who the action was brought.
See GUARANTY TRUST BANK PLC. v. FADCO INDUSTRIES LTD. (2005) ALL FWLR (Pt. 287) 913; NONYE v. ANYICHIE (supra); NDIC v. C.B.N (supra); ARJAY LTD. v AIRLINE MANAGEMENT SUPPORT LTD. [supra].PER MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

AKWA IBOM STATE HOUSE OF ASSEMBLY Appellant(s)

AND

MANAGEMENT INFORMATION SYSTEM CO. LTD Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision ruling of Hon. Justice Ekaette Obot sitting in the Akwa Ibom State High Court, Uyo Judicial Division in suit No. HU/642/2013 delivered on 19th May, 2014.

The Respondent as plaintiff in the Court below took out a writ of summons accompanied by statement of claim against Defendant appellant on 21/10/2013 whereof it claimed in paragraph 37 of the statement of claim as follows:
(i) The sum of N36,564,973.53 being the debt owed the Plaintiff by the Defendant as a result of the execution of the multiple contract awarded the Plaintiff by the Defendant on 01/08/2006.
(ii) 21% interest (being the prevailing commercial rate) per annum on the said sum of N36,564,973.53 from 01/03/2007) till judgment and thereafter at the rate of 15% till final liquidation of the judgment debt.
(iii) The sum of N3,000,000.00 being the cost of this action.

On 18/10/2013, Learned Counsel for the Appellant filed a notice of preliminary objection praying the Court that the suit is statute barred having been instituted 7 years after the cause of action arose.

Affidavits, counter affidavits and written addresses were filed on the said motion and on 19/05/2015, the learned trial judge overruled the Defendant?s Appellant?s preliminary objection on the ground that it is premature having regards to the contents of the Respondent?s statement of claim to pronounce on the limitation law as raised by the Defendant Applicant.

The reasoning of the learned trial judge in coming to his conclusion would be found on pages 148-149 of the Record of Appeal as follows:
It is settled law that the originating processes in any suit, which in this case is the Writ of Summons and other processes filed in support of the pleadings are primarily the instruments for determining the jurisdiction of the Court because they contain reliefs and claims sought by the party who instituted the action.
In the instant matter, it is not contested by the defendant that there was a contractual agreement between parties resulting in the debt which the Plaintiff/Applicant seeks for judgment to recover the debt.
In the statement of claim, various vouchers alleged to have been

classified for payment to the Plaintiff between 2012 and 2013 in respect of debt have been listed. It is also averred that in paragraph 29 of the plaintiff?s pleadings, that the vouchers will be relied upon at the trial and that notice is given for the defendant to produce the vouchers in Court. These averments in my opinion have sufficiently raised issues and facts which must be established in evidence before the Court can come to the conclusion that the suit is statute barred.
In other words, the materials before me are not sufficient to determine the issue raised. The particulars and facts of the alleged revival of the debt owed must be properly placed before the Court by way of evidence in order to verify and determine the issue raised by the defendant. The Defendant is yet to respond properly in that instance for such determination.
Therefore, it is my view that the objection is too premature to be raised at this point. The objection in the light of the above is overruled.
Consequently, it is ordered that the defendant shall file its pleadings and all the relevant processes as required under Order 11 of the Rules of this

Court within the next 30 days in response to this suit.

Dissatisfied with the above decision/ruling, the Appellant filed a Notice of Appeal containing only one ground of appeal in this court on 02/06/2015. The relevant briefs of Argument are as follows:
1. Appellant?s brief of Argument filed on 31/03/2016 but deemed filed on 09/01/2017. It is settled by Uwemedimo Nwoko Esq., Hon. Attorney General, Akwa Ibom State.
2. Respondent?s brief of Argument dated 05/01/2017 and filed on 09/01/2017. It is settled by Christopher Udoh Esq.

Learned counsel for the Appellant nominated a sole issue for determination. It is:
Having regard to the express pleadings in the statement of claim, whether the learned trial judge was not wrong to hold that there was no sufficient material before the Court to determine whether the suit was statute barred or not.

Learned counsel for the Respondent on the other hand framed the sole issue for determination in this appeal as:
?Having regards to the entire pleadings in the statement of claim whether the learned trial judge was not right to hold that there was no sufficient

materials before the Court to determine whether the suit was statute barred or not.

On the said sole issue, Learned Counsel for the Appellant submitted that the learned trial judge had in her Ruling assumed jurisdiction to hear the case and held that the objection as to jurisdiction raised by the Appellant was premature and that the materials before her were not sufficient to determine the said issue of jurisdiction.

To the contrary, Appellant?s processes (Writ of Summons and Statement of Claim) filed by the Respondent in this case were enough for the trial Court to determine the issue of jurisdiction. This he said is so because it is now very trite that in determining whether or not a Court has jurisdiction to entertain an action, it is the claimant?s originating process i.e. a Writ of summons or statement of claim that has to be considered.
He referred to the cases of OKOROCHA v. UBA PLC (2011) 1 NWLR (Pt.1228) 373; AG. FED v. AG. ABIA (2001) 11 NWLR (Pt. 725) 689 @ 740; ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD v. GARBA (2002) 14 NWLR (Pt 788) 538 @ 564.

He submitted that the trial Court had agreed with Appellant on this

point when it stated on page 148 of the Record of Appeal thus:
It is settled law that the originating processes in any suit, which in this case is the writ of summons and the other processes filed in support of the pleading are the instruments for determining the jurisdiction of the Court because they contain reliefs and claims sought by the party who instituted the action.

He submitted that it is the consideration of the date the cause of action arose as stated in the originating processes and the comparison of that date with the date the case was instituted that will determine whether the action is statute barred.

On this point Appellant?s counsel referred to the cases of HASSAN v. ALIYU (2010) 17 NWLR (Pt. 1223) 547 @ 619; SANNI v. OKENE LG (2005) 14 NWLR (Pt. 944) 60 @ 74; KASANDUBU v. ULTMATE PETROLEUM LTD. (2008) (Pt. 2086) 274 @ 304; THEOBROS AUTO LINK LTD. v. B. I. A. E CO. LTD. (2013) 2 NWLR (Pt. 1338) 337.

The implication here according to Appellant?s counsel is that once the originating processes have revealed the date the cause of action arose, such date will be compared with the date a plaintiff instituted the

suit to determine whether the suit has been caught up by the period of limitation.

He submitted that the Supreme Court per Okoro JSC recently adopted the above position of the law in the case of IBRAHIM v. LAWAL (2015) 17 NWLR (Pt. 1489) 490 @ 522. He reiterated that the Appellant?s contention was simply that Section 16 of the Limitation Law Cap 78, Vol. 4, Laws of Akwa Ibom State 2000 stipulates that no action founded on contract tort or any other action shall be brought after 5 years from the date the cause of action accrued. That applying the above principle as stated by Okoro, JSC in IBRAHIM v. LAWAL (Supra), the trial Court only needed to consider the facts in the statement of claim and the date the case was filed in order to determine the limitation period. The facts as stated in the Writ of Summons and the Statement of Claim said counsel were enough to determine whether the case was statute barred. In fact, that, the Court is not even permitted to look outside the statement of claim for this purpose.
?
He submitted that from the Statement of Claim, it is obvious that the Respondent instituted this suit on 21st October 2013 to challenge a

cause of action that arose since 06/02/2007 when the Respondent was issued with a job completion certificate. The dates of issuance of the job completion certificates were clearly pleaded by the Respondent in paragraphs 4-24 of its Statement of Claim as being between 17/11/2006 and 06/02/2007). These facts are more than enough materials for the trial Court to determine the limitation period.

He submitted that the Respondent is not in any way contesting that the cause of action did not arise between November 2006 and February 2007. The Respondent?s only point of disagreement is that in 2012, the Appellant had prepared vouchers for payment of the said debt and that those vouchers constituted acknowledgment of debt which is an exception to the limitation law. In other words, according to the Respondent, time started to run from when the vouchers were prepared and not from the original date the cause of action arose.
?
This reasoning of the Respondent said Counsel is not correct because the imaginable verbal promises and the vouchers that the Respondent claimed that Appellant prepared, cannot by any stretch of argument revive this action.

There is nothing on the face of the Processes filed by the Respondent to show that the Appellant made such verbal promises or prepared any form of voucher and served it on the Respondent. None of the paragraphs in the said Statement of Claim can be constituted as constituting acknowledgment of debt.

The Respondent in its Argument surprisingly said counsel relied heavily on the case of N.S.T.F.M.B v. KLIFCO NIG. LTD. (2010) [Pt. 1211] pg. 307 and argued that the purported vouchers had revived the dead action.

Appellant?s counsel submitted that the facts in the N.S.T.F.M.B?s case are distinguishable from the facts in the present case. It does not in anyway assist the Respondent in the present case, but it is totally in support of Appellant?s reasoning here. In that case, a Statute of Limitation made a provision for a debt to be recoverable within six years from the date the cause of action accrued. The Respondent (Defendant) wrote a letter to the Appellant (Plaintiff) admitting owing the Appellant some money. The Respondent raised the issue of limitation of action, as the case was filed after six years contrary to the Statute of limitation.

The Court held that the letter from the Respondent to the Appellant admitting indebtedness is an absolute and unconditional acknowledgement of the indebtedness by the Respondent, which has taken the suit out of the Limitation Act, and as such the action was held not to be statute barred.

This according to Counsel is not the position in the instant case. There is no letter from the Appellant to the Respondent admitting the debt as in the N.S.T.F.M.B?s case cited above, there is absolutely nothing from Appellant to Respondent to show that the contract was revived between the period of 2007 and 2013.

That the Voucher that the Respondent claimed to have been an acknowledgment by the Appellant was not even front-loaded. This clearly shows that there was nothing like that.

He submitted that apart from not front-loading the voucher, the Respondent has not stated in any of the paragraphs in the Statement of Claim that he was served with any of those vouchers so as to constitute an acknowledgment of debt.
?
He submitted that all the materials needed by the trial Court to determine the case were properly placed before the Court. There was

certainly no need for any other material to be placed before the Court by way of evidence for Defendant who raises the issue of Statute of limitation, need not call or adduce evidence if the facts needed to determine the Court?s jurisdiction can be gleaned from the Statement of Claim. He referred to the cases of STERLING PLANTATION AND PROCESSING COMPANY LIMITED V. CHIEF SOLOMON AKOTEYON AGBOSU & ORS (2013) LPELR-22146 (CA) and KOLO V. FBN PLC. (2003) 3 NWLR (Pt. 806) 216; ARUBODE V. MINISTRY OF FOREIGN AFFAIRS (2004) 14 NWLR (Pt. 894) 506 @ 520-521.

He urged us to hold that the learned trial Judge erred in law to have assumed jurisdiction to hear the case which was clearly caught up by Section 16 of the Limitation Law, Cap 78, Vol. 4, Laws of Akwa Ibom State, 2000.

Finally, he urged us to allow this appeal and set aside the Ruling of the learned trial Judge delivered on the 19th day of May, 2015 and enter judgment dismissing the Respondent?s suit at the lower Court on the following grounds.
(a) All the material needed by the Court to determine the issue of jurisdiction raised by the Appellant was properly placed before the Court

by the Respondent in its Statement of Claim for the Court to determine its jurisdiction.
(b) The action of the Respondent which was filed 21st October, 2013 to recover a debt that was due since February 2007 when he alleged to have been issued with a job completion certificate in a contract he purportedly executed is statute barred by virtue of Section 16 of the Limitation Law Cap 78, Vol. 4, Laws of Akwa Ibom State, 2000. i.e. this was commenced more than five (5) years after the cause of action arose against the Defendants/Appellants.
(c) That Appellant who pleads the defense of statute of limitation need not call or adduce evidence if the facts needed to establish the defense can be gleaned from the Statement of Claim.

Learned Counsel for the Respondent on the other hand submitted that the learned trial judge had in her Ruling at page 149 of the Record of appeal held as follows:
In the Statement of Claim, various vouchers alleged to have been reclassified for payments to the plaintiff between 2012 and 2013 in respect of debt have been listed. It is also averred that in paragraph 29 of the plaintiff?s pleadings, that the

vouchers will be relied upon at the trial and that the notice is given for the defendant to produce the vouchers in Court. These averments in my opinion have sufficiently raised issues and facts which must be established in evidence before the Court can come to the conclusion that the suit is statute barred.

He referred to the case of SANNI v. OKENE LG (2005) 14 NWLR (Pt 944) 60 74 and agreed with Appellant that jurisdiction of the Court to entertain a suit is determined by the Writ of Summons and Statement of Claim of the plaintiff. He submitted that the vouchers having been pleaded forms part of the pleadings in the Statement of Claim filed by the Respondent in this case and the said vouchers, having not been produced by the Appellants renders their preliminary objection too premature at that stage. He submitted that particular relevance to the issue of jurisdiction in this case are paragraphs 27, 28, 29 and 30 of the statement of Claim which saves the case from the hammer of Statute of Limitation.

He submitted that the law is settled that the statute of limitation for a debt or obligation may be tolled by either an unconditional promise to pay the

debt or acknowledgment of the debt or acknowledgment of the debt. That the time limitation on bringing a law suit to enforce payment of the debt is suspended until the time for payment is established under the promise or acknowledgment has arrived. Upon that due date, the period of limitation will start again.

On this, the Respondent?s counsel referred to the case of NIGERIA SOCIAL INSURANCE TRUST FUND (FORMERLY NATIONAL PROVIDENT FUND) MANAGEMENT BOARD v. KLIFCO NIG. LTD. 7 LEDLR 3, (2010) VOL. 5-7 @ 2 MJSC 163 (2010) CLRM, where the Supreme Court per Chukwuma-Eneh, JSC held that acknowledgment of debt which must be in writing is an exception to the limitation rule and that what constitutes acknowledgment is a matter of fact in each case.

Learned Counsel for the Respondent submitted that by paragraphs 28, 29 and 30 of the Statement of Claim, the Appellant prepared vouchers in 2012 for payment to the Respondent (Plaintiff) of its debts. Payment was not made that year. In January 2013, the said vouchers were reclassified by the Appellant?s Defendant for payment in 2013 in line with best practices. The Respondent also gave notice to the

Appellant to produce the vouchers which the Appellant has avoided but instead resorted to legal expedition.

He submitted that ordinarily without the pleadings in the said paragraphs 28, 29 and 30 of the statement of Claim which constituted a more credible acknowledgment of debt than a mere letter, the Respondent?s claim would have been statute barred since 2012.

He submitted that having pleaded in paragraphs 28 and 29 of the statement of Claim that vouchers have been prepared in favour of the Respondent, the onus is on the Respondent to prove acknowledgment of the debt which is an exception to the rule of limitation of action on the principle of KODILINYE v. ODU (1935) 2 WACA 337. He added that this can only be achieved when issues are joined. That having not joined issues, it is premature to determine whether or not the case is statute barred on the preliminary objection filed by the Appellant since the trial Court lacks enough material to determine same. He emphasized that in the N.S.I.T.F.M.B v. KLIFCO case (supra) issues were joined and the defense of acknowledgment of indebtedness argued before the issue of jurisdiction was properly

determined. He submitted that it is the duty of the trial Court, after evaluating the said vouchers (evidence) as pleaded, to determine whether a promise to pay is inferrable from the vouchers or it constitutes acknowledgment of indebtedness and so take the matter outside the operation of the Limitation Law. He referred to the case of AJIKE v. CARDOSO (1939) WACA 134 and said that this, the trial Court could not do because issues were not joined.

He submitted that, the Appellant had neither in any way, contested her indebtedness, nor that it prepared vouchers in 2012 and reclassified same in 2013. That Notice has been given to the Appellant in paragraphs 28-29 of the Statement of Claim to produce same being in its custody. It behoves on the Appellant to deny that the said vouchers were not prepared which it has not done. The argument of the Appellant that the said vouchers were not served on the Respondent is neither here nor there. Respondent?s counsel invited us to take judicial notice of the fact that vouchers prepared by an organization, private or public, are not usually served on the payee.
?
Learned counsel for the Respondent submitted

further that the Appellant in misconstruing the principle in NSITFMB?s case (supra), argued in paragraphs 3.16 and 3.17 of the appellant?s brief that acknowledgment of indebtedness which could revive a statute barred action must be by way of letter writing alone but that is not the intention of the apex Court in that case. That in fact, Chukwuma-Eneh, JSC stated succinctly in his lead judgment that ..what constitutes acknowledgment in such cases is a matter of fact in each case, if I may repeat.”

In other words that the only procedure for acknowledgment set in the N.S.I.T.F.M.B. case is that the acknowledgment must be in writing signed by the party that is liable. He urged us to accept that vouchers are written documents and are usually signed by an authorized officer. He submitted that the Appellant argued in paragraphs 3.18 and 3.19 that the said vouchers were not front loaded and that they were not served on the Respondent but failed to state that notice was given to the Appellant to produce same.

He concluded that all the materials needed by the trial Court to determine the case were not placed before the Court,

the Appellant having not produced the vouchers, despite notice for production of same. As a result, the trial Court could not at that point determine whether or not the vouchers as pleaded constituted acknowledgment of indebtedness or unconditional promise to pay the debt capable of tolling the Statute of Limitation for a debt or obligation.

RESOLUTION OF ISSUE
The parties to this case are agreed on the point of law that in considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it by critically looking at the Writ of summons and the Statement of Claim. See GAFAR v. GOVT, KWARA STATE (2007) 4 NWLR (Pt. 1024) 375 SC; ONUORAH v. K.R.P.C (2005) 6 NWLR (Pt. 921) 393 SC; TUKUR v. GOVT. OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517 SC; NKUMA v. ODILI (2006) 6 NWLR (Pt. 1069) 561; OLORUNTOBA-OJU v. NIGER STATE GOVT. (2008) 13 NWLR (Pt. 1103) 111 SPDCN LTD. v. GOODLUCK (2008) 14 NWLR (Pt. 1107) 294.

?The parties to this appeal are equally agreed as a matter of fact that ordinarily and by arithmetic calculations, the Respondent?s cause of action arose on 06/02/2007 when it received the last of

the job completion certificate of the various contracts awarded to it by the Appellant and would be caught by the 5 year limitation rule operative in Akwa Ibom State by year 2012. There is no dispute that the suit was instituted in year 2013. What seems to be the bone of contention in this appeal is the question whether the alleged acknowledgment of debt contained in the Respondent?s pleadings on account of vouchers that Respondent claimed the Appellant prepared in 2012 and 2013 constitutes an unconditional promise and/or written acknowledgment of debt in between the parties.

On this score, the Respondent relied on paragraphs 28 to 30 of its Statement of Claim whereby it pleaded the Appellant?s vouchers of 2012 and 2013 as acknowledgment of debt and unconditional promise by the Appellant to pay its debt. The Respondent also relied on this point on the decision of the Supreme Court per Chukwuma-Eneh J.S.C in the case of NIGERIA SOCIAL INSURANCE TRUST FUND (FORMERLY NATIONAL PROVIDENT FUND) MANAGEMENT BOARD v. KLIFCO NIG. LTD. (2010) LEDLR 3 (2010) Vol. 5-7 @ 2 MJSC 163 (2010) CLRN henceforth here referred to as N.S.I.T.F.M.B v. KLIFCO for the

proposition that the vouchers prepared by the Appellant in favor of the Respondent as alleged/contained in the pleadings of the Respondent constitute written acknowledgment of debt and/or unconditional promise of payment which qualified as an exception to the Limitation law as stated by the Supreme Court in the case of N.S.I.T.F.M.B v. KLIFCO (supra).

First, let us peruse the said pleadings of the Respondent. Paragraphs 28-30 of the Respondent?s Statement of Claim read thus:
28. The Plaintiff avers that the Defendant only made an attempt in 2012 to pay by causing the following vouchers to be prepared for each of the contract in favour of the Plaintiff:
(a) For the contract in paragraph 3 above the Defendant prepared Departmental Payment Voucher Number (Dept. Pv. No.) AKHA/CAP/86/2012 for the sum of N4,067,250.00.
(b) For the contract in paragraph 5 above, voucher number AKHA/CAP/94/2012 was prepared in favour of the Plaintiff for the sum of N3,352,466.86.
(c) For the contract in paragraph 7 above, voucher number AKHA/CAP/95/2012 was prepared in favour of the Plaintiff for the sum of N3,445,200.00
(d) For the contract in

paragraph 9 above, voucher number AKHA/CAP/96/2012 was prepared for the sum of N3,568,925.25 in favour of the Plaintiff.
(e) For the contract in paragraph 11 above, voucher number AKHA/CAP/97/2012 was prepared for the sum of N2,727,450.00 in favour of the Plaintiff.
(f) For the contract in paragraph 13 above, voucher number AKHA/CAP/98/2012 was prepared for the sum of N2,583,900.00 in favour of the Plaintiff.
(g) For the contract in paragraph 15 above, voucher number AKHA/CAP/99/2012 was prepared for the sum of N2,153,250.00 in favour of the Plaintiff.
(h) For the contract in paragraph 17, voucher number AKHA/CAP/100/2012 was prepared for the sum of N2,622,443.17 in favour of the Plaintiff.
(i) For the contract in paragraph 19 above, voucher number AKHA/CAP/101/2012 was prepared for the sum of N4,735,500.00 in favour of the Plaintiff.
(j) For the contract in paragraph 21 above, voucher number AKHA/CAP/102/2012 was prepared for the sum of N3,068,580.65 in favour of the Plaintiff.
(k) For the contract in paragraph 23 above, voucher number AKHA/CAP/102/2012 was prepared for the sum of N4,240,007.64 in favour of the

Plaintiff.
The said vouchers are hereby pleaded and shall be relied on during trial. Notice is hereby given to the Defendant to produce the vouchers in court.
29. The Plaintiff avers that it waited till 31/12/2012 without being paid and that sometime in January it discovered through its legal adviser, Charles Ndarake, Esq., that the vouchers prepared in 2012 have been re-classified to give the Plaintiff the impression that the Defendant is ready and willing to pay as follows:
(a) For the contract in paragraph 3 above, voucher was reclassified as AKHA/CAP/7/2013 for N4,067,250.00
(b) For the contract in paragraph 5 above, voucher was reclassified as AKHA/CAP/8/2013 for N3,352,466.86
(c) For the contract in paragraph 7 above, voucher was reclassified as AKHA/CAP/9/2013 for N3,445,200.00
(d) For the contract in paragraph 9 above, voucher was reclassified as AKHA/CAP/10/2013 for N3,568,925.25
(e) For the contract in paragraph 11 above, voucher was reclassified as AKHA/CAP/10/2013 for N2,727,450.00
(f) For the contract in paragraph 13 above, voucher was reclassified as AKHA/CAP/11/2013
(g) For the contract in paragraph 15

above, voucher was reclassified as AKHA/CAO/12/2013 for N2,153,250.00
(h) For the contract in paragraph 17 above, voucher was reclassified as AKHA/CAP/13/2013 for N2,622,443.17
(i) For the contract in paragraph 19 above, voucher was reclassified as AKHA/CAP/14/2013 for N4,735,500.00
(j) For the contract in paragraph 21 above, voucher was reclassified as AKHA/CAP/15/2013 for N3,068,580.65
(k) For the contract in paragraph 23 above, voucher was reclassified as AKHA/CAP/16/2013 for N4,240,007.64
The vouchers are hereby pleaded and shall be relied on during trial. Notice is hereby given to the Defendant to produce the vouchers in Court.
30. The Plaintiff avers that after waiting for another six (6) months without hearing from the defendants, it caused its legal adviser to issue a final letter dated 12/06/20143 to the Defendant. The said letter is hereby pleaded and shall be relied on during trial. Notice is hereby given to the Defendant to produce the original copy of the letter in Court.

The Plaintiff avers that it is yet to receive any response from the Defendant and has incurred so much expenses trying to recover its debt from

the Defendants since 2007.

In relation to the N.S.I.T.F.M.B v. KLIFCO NIG. LTD. (supra) which is also reported in (2010) 13 NWLR (Pt. 1211) @ 307, Respondent?s counsel referred to the lead judgment of Chukwuma-Eneh J.S.C at page 329 of the NWLR Report as saying that;
?What I must further state as settled law is that the law of limitation here as not extinguished the right to the debt: the instant debt has not been extinguished but it merely bars the right to recover the debt because of lapse of specified period of time in the law of limitation from action. However, where there is acknowledgment of debt, which must be in writing signed by the party that is liable, the right to recover the debt by action is revived and what constitutes acknowledgment in such cases is a matter of fact in each case. If I may repeat. In other words, what constitutes acknowledgment will depend on the construction placed on the words by the Court in ascertaining what the words mean. See SPENCER v. HEMMERDE (1992) 2 AC 507 @ 526; THADANT & ANOR v. NATIONAL BANK OF NIGERIA LTD. (supra) as rightly held in the SPENCER?s case (supra) @

p. 526, the question is ?what the debtor?s word mean; and not what he meant when he wrote them.” Thus making the debtor?s motive for the acknowledgment most irrelevant in the matter.

Notwithstanding the above submissions on law and facts by the learned counsel for the Respondent, Appellant?s counsel was not still deterred from saying that the vouchers pleaded by the Respondent are not in the same category as a written letter as in the case of N.S.I.T.F.M.B.v. KLIFCO NIG. LTD (supra) that the vouchers were not communicated to the appellant and were not front loaded. It seems to me that these objections to the form of acknowledgement of debt by the Appellant merely confirm the wisdom in the ruling by the learned trial judge that the jurisdictional objection by the Appellant to the Respondent?s suit was indeed premature. This is more so as when the accrual time for the action of the Respondent as well as the acknowledgment by the Appellant via the vouchers of 2012 and 2013 are all holistically contained in the same pleadings of the Respondent.
?
What seems to be more important to me as a matter of law

in this case is that the reasoning of the learned trial judge that the Appellant?s objection to the jurisdiction of the Court was premature, conforms with the broader and extant view that the determination of jurisdiction in a claim would depend on the Plaintiff?s Writ of Summons and Statement of Claim but in fact at other times on the materials available to the Court.
Thus, in the case of NDIC v. C.B.N (2002) 7 NWLR (Pt. 766) 272 @ 296 Uwaifo J.S.C speaking for the Supreme Court said:
To say, therefore? that objection to jurisdiction should only be taken after the statement of claim has been filed is a misconception. It depends on what materials are available. It could be taken on the basis of the Statement of Claim. It could be taken on the basis of the evidence received?.. or by a motion supported by affidavit giving the fact upon which reliance is pleaded. But certainly it could be taken on the face of the Writ of Summons where appropriate
See also NONYE v. ANYICHIE (2005) 2 NWLR (Pt. 910) 623; ARJAY LTD. v. AMS LTD. (2003) 7 NWLR (Pt. 820)

577; AWOYEMI v. FASUAN (2006) 13 NWLR (Pt. 996) 86; A-G. BENUE STATE v. UMAR (2008) 1 NWLR )Pt. 1068) 311; FCE, OYO v. AKINYEMI (2008) 15 NWLR (Pt. 1109) 21.
All the above cases debunked the common and traditional view that only the statement of claim determines the jurisdiction. Put in another way, an objection to the jurisdiction of a Court can be raised in any of the following situations:
(a) on the basis of the statement of claim, or
(b) on the basis of evidence received;
(c) by motion supported by affidavit setting out the facts relied on; or
(d) on the face of Writ of Summons where appropriate, as to the capacity in which the action was brought, or against who the action was brought.
See GUARANTY TRUST BANK PLC. v. FADCO INDUSTRIES LTD. (2005) ALL FWLR (Pt. 287) 913; NONYE v. ANYICHIE (supra); NDIC v. C.B.N (supra); ARJAY LTD. v AIRLINE MANAGEMENT SUPPORT LTD. [supra]. It is therefore my considered opinion, in all the circumstances of this case that the conclusion of the learned trial Judge that the Appellant?s objection to jurisdiction to try the Respondent?s claim was premature having regard to the

Respondent?s averments in paragraphs 28-30 of the Statement of Claim does not merely reflect a proper evaluation of the facts presented by the parties but also based on sound principle of law.

In the circumstance, the only issue for determination in this appeal is resolved against the Appellant.
This appeal lacks merit and it is accordingly dismissed. N30,000 costs is awarded in favour of the Respondent.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA and I am in complete agreement with the reasoning and conclusion arrived at. I have nothing useful to add. I also abide by the orders made therein.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading the judgment of my learned brother, MOJEED A. OWOADE, JCA, just delivered. I agree with the reasoning and conclusion that the appeal is devoid of merit and should be dismissed.
?I hereby dismiss the appeal. I abide by all the consequential orders including the order as to costs.

Appearances:

Uwemedimo Nwoko Esq.For Appellant(s)

Christopher Udoh, Esq.For Respondent(s)

Appearances

Uwemedimo Nwoko Esq.For Appellant

AND

Christopher Udoh, Esq.For Respondent