COMMISSIONER FOR AGRICULTURE, ADAMAWA STATE MINISTRY OF AGRICULTURE & ANOR v. GLOBAL INVESTMENT (NIG) LTD & ORS (2021)

COMMISSIONER FOR AGRICULTURE, ADAMAWA STATE MINISTRY OF AGRICULTURE & ANOR v. GLOBAL INVESTMENT (NIG) LTD & ORS

(2021)LCN/15030(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, February 11, 2021

CA/YL/179/19

RATIO

PROCEDURE: PROCEDURE ON HOW A PLEA OF TIME BAR IS MADE

Order 25 Rule 4 (1) of the Adamawa State High Court (Civil Procedure) Rules, 2013 provides thus:
“4 (1) A party shall plead specifically any matter (for example, must performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite party by surprise.”
The above provision spelt out the procedure prescribed on how a plea of time bar is to be raised, the Rules having provided a method by which a plea of time bar could be raised, that method has to be used and no other. PER CHIDI NWAOMA UWA, J.C.A.

COURT: ATTITUDE OF THE COURT TO NON-COMPLIANCE WITH THE RULES OF COURT

See, IKECHUKWU VS. FRN & ORS (2012) LPELR – 14843 (CA) PP. 7 – 8, PARAS. F – C, where his lordship Bada, JCA on the issue of non-compliance with the rules of Court held thus:
“Whenever there is non-compliance with the Rules of Court, the Court should not remain passive and helpless but, should sanction the party who has failed to comply, otherwise the purpose of enacting the Rules of Court will be defeated. See, the following cases:- OWNERS OF THE MV “ARABELLA” VS. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR PART 1097 PAGE 182, DUKE VS. AKPABUYO LOCAL GOVERNMENT (2005) 19 NWLR PART 959 PAGE 130:- AROMOLARAN VS. OLADELE (1990) 7 NWLR PART 162 PAGE 359:- BANGO VS. CHADO (1998) 9 NWLR PART 564 PAGE 139.”
See, also IFEANYICHUKWU TRADING INVESTMENT VENTURES LTD & ANOR VS. ONYESOM COMMUNITY BANK LTD (2015) LPELR – 24819 (SC). PER CHIDI NWAOMA UWA, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

COMMISSIONER FOR AGRICULTURE ADAMAWA STATE MINISTRY OF AGRICULTURE 2. ADAMAWA STATE GOVERNMENT APPELANT(S)

And

GLOBAL INVESTMENT NIGERIA LIMITED 2. FIDELITY BANK PLC 3. ADAMAWA AGRICULTURE MULTIPURPOSE CO-OPERATIVE SOCIETY LIMITED RESPONDENT(S)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The 1st Respondent as plaintiff instituted this action against the defendants jointly and severally before the Adamawa State High Court (hereafter referred to as the lower Court) and prayed for the following reliefs:
a. “A DECLARATION that the 3rd – 4th Defendants failure refusal to deduct the sum of N19,166,666.66 (Nineteen Million, One Hundred and Sixty Six Naira, Sixty Six Kobo only) monthly on behalf of members of the 2nd defendant for remittance/payment to the plaintiff for a period of 18 months effectively from the month of delivery of 3,000 set of Ax100 motorcycle by the plaintiff supplied to the 2nd Defendant at the unit price of N115,000.00 (One Hundred and Fifteen Thousand Naira) only for each motorcycle, is a breach of the 3rd – 4th Defendants guarantee contained in the irrevocable standing payment order dated 20th September, 2010 to offset the 2nd Defendants indebtedness to the plaintiff.
b. A DECLARATION that the 1st Defendants refusal/ failure to remit the maximum sum of N19,166,666.66 (Nineteen Million, One Hundred and Sixty Six Naira, Sixty Six Kobo only)

into the plaintiff’s account with the 1st Defendant for a period of 18 (eighteen) months effective from the month of delivery of 3,000 set of Ax100 Motorcycles the plaintiff supplied to the 2nd Defendant at the Unit price of N115,000.00 (One Hundred and Fifteen Thousand Naira) for each motorcycle, is a breach of the 1st Defendant’s guarantee contained in the irrevocable standing payment order dated 27th January, 2011 to offset the 2nd defendant’s indebtedness to the plaintiff.
c. AN ORDER directing the 1st – 4th Defendants to pay to the plaintiff the sum of N345,000,000.00 (Three Hundred and forty Five Million Naira) only being the total cost of 3,000 set of AX100 motorcycles the plaintiff supplied to the 2nd Defendant at the Unit price of N115,000.00 (One Hundred and Fifteen Thousand Naira) for each motorcycle.
d. AN ORDER directing the 1st – 4th Defendants to pay to the plaintiff the sum of N200,000,000.00 (Two Hundred Million Naira) only being general damages for breach of Agreement/contract.
e. AN ORDER directing the 1st – 4th Defendants to pay to the plaintiff pre-judicial interest at the rate of 21% per

annum from March, 2011 until the date of judgment.
f. Plus 10% interest in the judgment sum from the date of judgment till same is liquidated.
g. Cost of this litigation.” (see pages 5 – 7 of the record of appeal).

The background facts are that the lower Court delivered its Ruling on the 10th day of May, 2018 on a preliminary objection in this suit filed by the 1st and 2nd Appellants who were the 3rd and 4th Defendants before the lower Court that struck out the Notice of preliminary objection without hearing same on the merit despite the Counter Affidavit filed by the 1st Respondent. The 1st and 2nd Appellants also filed a reply on points of law. The lower Court in its Ruling, held that since the 3rd and 4th Defendants did not move their motion on Notice seeking for leave to file their statement of defence out of time, it implied that the 3rd and 4th defendants did not file any defence to the suit.

The application was struck out. Aggrieved by the Ruling, the appellants appealed against same. Two issues were formulated for the determination of the appeal thus:
“Whether the ruling of the trial Court is unwarranted having

regard to the weight of evidence (distilled from grounds of the grounds of appeal)
Whether the learned trial judge erred in law when he failed, weighted and or refuse (sic) to hear and determine the 3rd and 4th (sic) preliminary objection and reply on points of law to plaintiffs counter affidavit on merit” (distilled from ground 2 of the grounds of appeal.)

The 1st Respondent on her part formulated a sole issue thus:
“Whether the learned trial judge was right when he struck out the appellants’ notice of preliminary objection raising the plea of statute of limitation, the appellants having failed to file their statement of defence in violation of the rule against demurrer.” (Distilled from grounds 1 and 2 of the notice of appeal).

The 2nd and 3rd Respondents did not file any brief of argument and had nothing to urge.

In arguing the appeal, the learned counsel to the appellant M.A. Umar Esq. Senior State Counsel II, Adamawa State Ministry of Justice submitted that the issue of fair hearing is guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) hereafter referred to as the

Constitution. It was argued that the appellants were not accorded a fair hearing at the trial. Further, that the Notice of preliminary objection raised by the 3rd and 4th Defendants (1st and 2nd Appellants herein) and the Reply on points of law to the plaintiff’s counter affidavit touch on the issue of jurisdiction of the trial Court to entertain the suit for being statute barred. It was also submitted that the claim against the 3rd and 4th Defendants (1st and 2nd Appellants) was a stale claim ab initio, see pages 8, 48 – 63, 64 – 70 and 78, – 83 of the records of appeal. It was argued that the issue of jurisdiction ought to have been disposed of before the lower Court determined the preliminary objection which violated the provisions of Section 36 (1) of the Constitution. See, T.E.S.T. INC. VS. CHEVRON NIG. LTD. (2017) 11 NWLR (PT. 1576) PAGE 187 at 224, PARAGRAPHS D – E and DARMA VS. ECO BANK (NIG) LTD (2017) 9 NWLR (PT. 1571) PAGE 480 at PP. 501, PARAGRAPHS C – E, 510 PARAGRAPHS B – E.

In arguing his second issue, it was submitted that the issue of jurisdiction need not have been pleaded. Further, that the failure of

the 3rd and 4th Defendants to regularize their pending statement of defence and seeking for a deeming order is a mere irregularity which could be cured, further that the issue of jurisdiction could be raised at any time. See, OLORIODE VS. OYEBI (1984) 1 SCWLR 390, (1984) 5 S.C. 1, OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508 and KOTOYE VS. SARAKI (1994) 7 NWLR (PT. 357) 414 at 453 – 454. It was argued that the trial Court was wrong to have struck out the preliminary objection on the basis that no statement of defence had been filed. It was argued that a decision ought to have been taken on the preliminary objection before any other step could be taken; otherwise, the entire proceedings are a nullity. See, NDAEYO VS. OGUNAYA (1977) 1 SC 11, CHACHAROS VS. EKIMPEX LTD (1988) 1 NWLR (PT. 68) 88, OLOBA VS. AKEREJA (1988) 3 NWLR (PT. 84) 508, BAKARE VS. ATTORNEY GENERAL OF THE FEDERATION (1990) 5 NWLR (PT. 152) 516 and JERIC (NIG) LTD VS. UNION BANK PLC (2000) 15 NWLR (PT. 691) 447. It was argued that an objection could be taken on the basis of the statement of claim; reliance was placed on the case of IZENKWE VS. OWODOZIE (1953) 14 WACA 361 at 363,

ADEYEMI VS. OPEYORI (1976) 9 – 10 SC 31 and KASIKWU FARMS LTD VS. AG. OF BENDEL STATE (1986) 1 NWLR (PT. 19) 695. It was concluded that the issue of jurisdiction could be raised at any time before pleadings are filed based on the writ of summons alone, reliance was placed on the case of ARJAY LTD VS. AIRLINE MANAGEMENT SUPPORT LTD (2003) 7 NWLR (PT. 820) 577 at 601.

The learned counsel to the 1st Respondent, G.L. Bako with Y.M. Pam and Mohammed Bamanga adopted and relied on his brief of argument filed on 4/10/19, deemed filed on 17/9/2020 as his argument in this appeal in urging us to dismiss same. In arguing his sole issue, it was submitted that the lower Court was right to have refused to consider the appellants’ Notice of Preliminary objection for failure to file his pleadings as mandatorily required under the provisions of Order 25 Rule 4 (1) of the Adamawa State High Court (Civil Procedure) Rules, 2013. It was submitted that the appellants ought to have complied with the rule requiring that before raising the issue of statute of limitation, they ought to have filed their statement of defence, reliance was placed on the cases of MARWA VS. NYAKO

(2012) 6 NWLR (PT.1269) 199 at 360, PARAS. B – C, AGBAI VS. UKPABI (2014) 16 NWLR (PT. 1434) 524 at 537 – 538, PARAS. H – C, SULGRAVE HOLDINGS INC. V. F.G.N. (2012) 17 NWLR (PT. 1329) 309 at 339 – 340, PARAS. G – A and EKWEOZOR VS. REG. TRUSTEES, S.A.C.N. (2014) 16 NWLR (PT. 1434) 433 at 478, PARAS. D – E. It was argued that Order 24 Rule 2 of the Adamawa State High Court (Civil Procedure) Rules, 2013 provides that any point of law sought to be relied upon by way of pleading which may thereafter be set down for hearing and by Order 24 Rule 1 of the same Rules, no demurrer is allowed, reliance was placed on the case of NTUKS VS. N.P.A (2007) ALL FWLR (PT. 387) 809 at 828. It was argued that the Notice of Preliminary Objection was filed without any affidavit in support to show that the action was statute barred. Further, that there was no breach of the appellants’ right to fair hearing but, rather the appellants failed to comply with the rules of the High Court Civil Procedure Rules of Adamawa State, Order 24 Rules 1 and 2 and Order 25 Rules 4(1). It was argued that rules of Court are meant to be obeyed, reliance was

placed on the case of OWNERS OF THE MV “ARABELLA” VS. N.A.I.C. (2008) 11 NWLR (PT. 1097) 187, AKANBI & ORS. VS. ALAO & ANOR (1989) 5 SCNJ 1 at 10.

It was submitted that filing of pleadings is a precursor to properly raise a plea of statute of limitation, a precondition that must be satisfied, reliance was placed on FUMUDOH VS. ABORO (1991) 9 NWLR (PT. 214) 210 at 232, PARA. H; 233, PARAS. A – C.

In the alternative, should the Court hold that the Notice of objection was wrongfully struck out, the learned counsel to the 1st Respondent urged us to invoke our powers under Section 15 of the Court of Appeal Act, 2004 and Order 4 Rule 4 of the Court of Appeal Rules, 2016 and determine the main questions in controversy between the parties in that all the relevant processes to be considered are before the Court, reference was made to the case of SOUTH TRUST BANK VS. PHERANZY GAS LTD (2014) 16 NWLR (PT. 1432) 1 at 29, PARAS. B – G and EZEIGWE VS. NWAWULU (2010) 4 NWLR (PT. 1138) 159 at 203, PARAS. F – B. Also, if the appeal should succeed, that the Court should consider the preliminary objection on its merit, there would

then be no need to return to the lower Court for hearing of the objection, creating another avenue for appeal which would lead to undue delay and hardship on both parties. It was concluded that this Court is in a proper position to consider the merit or otherwise of the Appellants’ contention that the 1st Respondent’s action at the lower Court was statute barred.

In his reply brief, the learned counsel to the Appellant submitted that where an interlocutory appeal involves issues of law alone, leave to appeal is not necessary, reliance was placed on the case of BIDA VS. ABUBAKAR (2011) 5 NWLR (PT. 239). The issue of denial of fair hearing was reargued. Further, that Order 25 Rule 4 of the Adamawa State High Court Rules does not apply to this case. It was also reargued that the issue of the Limitation Laws and locus standi are threshold issues which could be raised any time, this Court or the Supreme Court. See, AJAYI VS. ADEBIYI (2012) 11 NWLR (PT. 1310) 137 at 149, it could also be raised verbally, see, OSUDE VS. AZODO (2017) 15 NWLR (PT. 1588) 301 (SC). We were urged to dismiss the preliminary objection as raised by the respondent and hold

that the appeal is meritorious and same be allowed.

In respect of the issues as formulated by the appellants, the first issue challenged the evaluation of evidence by the lower Court, while the argument supposedly in support of the said issue in the brief of argument was entirely centred on fair hearing or lack of it.

The Appellants’ second issue is similar to the Respondents’ sole issue formulated for the determination of the appeal. I would re-couch the issues for determination as formulated by the parties into a sole issue thus:
Was the learned trial judge right when he struck out the Appellants’ Notice of Preliminary Objection raising the plea of Statute of Limitation, the appellants having failed to file their Statement of Defence in violation of the rule against demurrer and refusing to determine the 3rd and 4th defendants’ preliminary objection on merit?

The summary of the Appellants’ grouse is that an objection to the jurisdiction of the Court need not have been pleaded in a statement of defence and could be raised at any stage of the proceedings in the High Court, Court of Appeal or Supreme Court by

the parties suo motu or by the Court itself. It was made out that the lower Court was wrong to have struck out the Appellants’ preliminary objection for the reason that their statement of defence had not been filed and for the reason that proceedings by way of demurrer had been abolished by the rules of the particular Court. Order 25 Rule 4 (1) of the Adamawa State High Court (Civil Procedure) Rules, 2013 provides thus:
“4 (1) A party shall plead specifically any matter (for example, must performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite party by surprise.”
The above provision spelt out the procedure prescribed on how a plea of time bar is to be raised, the Rules having provided a method by which a plea of time bar could be raised, that method has to be used and no other. See, IKECHUKWU VS. FRN & ORS (2012) LPELR – 14843 (CA) PP. 7 – 8, PARAS. F – C, where his lordship Bada, JCA on the issue of non-compliance with the rules of Court held thus:
“Whenever there is non-compliance with the Rules of

Court, the Court should not remain passive and helpless but, should sanction the party who has failed to comply, otherwise the purpose of enacting the Rules of Court will be defeated. See, the following cases:- OWNERS OF THE MV “ARABELLA” VS. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR PART 1097 PAGE 182, DUKE VS. AKPABUYO LOCAL GOVERNMENT (2005) 19 NWLR PART 959 PAGE 130:- AROMOLARAN VS. OLADELE (1990) 7 NWLR PART 162 PAGE 359:- BANGO VS. CHADO (1998) 9 NWLR PART 564 PAGE 139.”
See, also IFEANYICHUKWU TRADING INVESTMENT VENTURES LTD & ANOR VS. ONYESOM COMMUNITY BANK LTD (2015) LPELR – 24819 (SC). It is apt at this point to also reproduce the provisions of Order 24 Rule 2 of the Adamawa State High Court (Civil Procedure) Rules 2013 which provides thus:
24 (2): “Any party shall be entitled to raise by his pleading any point of law and any point so raised shall be disposed of by the judge before or at the trial.”
Order 25 Rule 4 (1) and Order 24 Rule (2) are clear and unambiguous, by the Rules a defendant who intends to rely on the plea of time bar is enjoined to file his statement of Defence

therefore, in the absence of the defendants’ pleadings, by the filing of a Statement of Defence, the appellants’ plea of Statute of Limitation was not properly raised at the lower Court. See, EBENOGWU & ANOR VS. ONYEMA OBIM (2007) LPELR – 8160 (CA) PP. 26 – 27, PARAS. D – C, OLATERU & ORS VS. OPIC (2018) LPELR – 44874 (CA) PP. 11 – 12, PARAS. E – B and IN SANNI VS. OKENE LOCAL GOVERNMENT & ANOR (2005) LPELR – 11315 (CA) PP. 8 – 9 PARAS. F – A, his lordship Rhodes – Vivour, JCA (as he then was) summarized the position of the law thus:
“The position of the law is that a defence of Limitation must be specifically pleaded and this is done by stating the statutory provision relied on. See, SAVAGE VS. ROTIBI (1944) 10 WACA at 264; IHEANACHO VS. EJIOGU (1995) 4 NWLR (PT. 389) P. 324.”
See, also MEKAOWULU VS. UKWA WEST LOCAL GOVERNMENT COUNCIL (2018) LPELR – 43807 (CA) PP. 11 – 12, PARAS. D – A and OMOTOSHO VS. BANK OF THE NORTH LTD & ANOR (2006) 9 NWLR (PT. 986) 573. In the present case, the Appellants did not comply with the mandatory

provisions of the High Court (Civil Procedure) Rules of Adamawa State, 2013. No doubt, limitation of action raises the issue of jurisdiction only and if the defence of limitation is properly raised. In the present case where it was not properly raised, the question of jurisdiction does not arise and cannot be rightly argued. The essence of pleading the limitation laws as a defence is to avoid taking the opposite side by surprise, pleadings have to be filed and exchanged for it to be properly raised in defence, especially where as in this case demurrer has been abolished. The learned trial judge’s decision striking out the application was in compliance with Order 24 Rules 1 and 2 and Order 25 Rule 4 (1) of the Adamawa State (Civil Procedure) Rules, 2013 and did not in any way breach the Appellants’ right to fair hearing as alleged by the learned counsel to the Appellants.
On the other hand, Rules of Court are meant to be obeyed as they are not made for fancy, moreso where the word “shall” has been used in the Rules as in this case, it must be mandatorily complied with. See, ONONYE & ORS VS. CHUKWUMA (2005) LPELR – 7526

(CA) P. 33, PARAS. A – B, where his lordship Augie, JCA (as he then was) held thus:
“Laws and Rules are not made to operate in the breach but are to be obeyed by citizens in order to satisfy the spirit and intendment for which they are promulgated, as this Court observed in INTEGRATED BUILDERS VS. DOMZAQ VENTURES (NIG.) LTD (supra).”
See also APE VS. OLOMO (2010) LPELR – 4988 (CA) PP. 31 – 32, PARAS. D – C and IBITOYE VS. NIGERIAN NAVY BOARD (2016) LPELR – 40058 (CA) P. 13, PARAS. C – E. No doubt the issue of jurisdiction can be challenged at any stage as rightly argued by the learned counsel to the Appellants but, in the present case the challenge is in defence where the plea of Statute of Limitation was raised, without compliance with the Adamawa State High Court (Civil Procedure) Rules, 2013 which provided a specific Procedure/Rules to be followed, in Order 25 Rule 4(1) of the Rules, which the Appellant failed to comply with. The trial Court was right to have struck out the preliminary objection without determining same on the merit. The Appellants have not argued in this appeal that they complied

with Order 25 Rule 4 (1) above and did not fault the Rules.
In alternative argument, should the Court hold that the preliminary objection was wrongly struck out, the learned counsel to the 1st Respondent had urged us to activate Section 15 of the Court of Appeal Act, 2004 and Order 4 Rule 4 of the Court of Appeal Rules, 2016 to determine the main questions in controversy between the parties in that all the processes to be considered are before the Court, this I decline to do, all the processes required to determine the case between the parties are not before the Court, for the reason that the matter cannot be determined without the appellants’ pleadings in form of their Statement of Defence. On the other hand, the decision being appealed against was determined at the interlocutory stage, this Court cannot delve into the substantive matter, it would be a fruitless academic exercise since the request was made should the appeal succeed; which is not the case here, the appeal having failed. The sole issue as reformulated is resolved against the Appellants.

In sum, the appeal is unmeritorious and it is hereby dismissed.
The parties are to bear their respective costs

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned counsel, Chidi Nwaoma Uwa, JCA and I agree with my learned brother that the appeal has no merit and should be dismissed.

The Appellants should have complied with the Rules of Court which provide for the procedure for challenging the competence of an action. The Rules must be obeyed. Insistence by the Court below on obedience to the Rules is no breach of right to fair hearing.

For the reasons contained in the judgment which I adopt as mine, I too dismiss the appeal.
I abide by all other orders in the judgment including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

M.A. Umar, Esq. Senior State Counsel II Adamawa State Ministry of Justice For Appellant(s)

G.L. Bako, Esq., with him, Y.M. Pam, Esq. and Mohammed Bamanga, Esq. – for 1st Respondent For Respondent(s)