LLOYD ANGELA & CO. LTD v. GREENWICH SECURITIES LTD & ORS (2020)

LLOYD ANGELA & CO. LTD v. GREENWICH SECURITIES LTD & ORS

(2020)LCN/14723(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, November 06, 2020

CA/A/1086/2018

RATIO

PROCESS: REQUIREMENT FOR THE SERVICE OF AN ORIGINATING PROCESS ON A COMPANY

OFFICE: WHAT IS A CORPORATE OFFICE

A corporate office to my mind is the main office or headquarters of a corporation where top decisions are made. The corporate office is generally where the executives of the company maintain their offices.
The corporate office could also be described as where the organisation has its principal place of operation. PER IDRIS, J.C.A.
COURT PROCESS: GENERAL PROCEDURE FOR EFFECTING SERVICE OF COURT PROCESSES

It is trite that the general procedure for effecting service of Court processes is governed by the provisions of Section 78 of the Companies and Allied Matters Act CAP C20 Laws of the Federation of Nigeria, 2004. It is equally not in doubt, that the decisions of the Apex Court in the case of MARK VS. EKE (2004) 5 NWLR (PART 1398) 421 cited by the 1st Respondent’s Counsel, is to the effect that service of Court processes on a company such as the 1st and 2nd Respondents must be effected at the registered office of the said company. Otherwise, it is bad and ineffective if service is effected on a company at a branch office thereof.
However, in a latter decision in the case of NBC VS. UBANI (2014) NWLR (PT. 1398) 421, which the Appellant’s Counsel has cited, the Apex Court held inter alia that possible personal service of Court processes could equally be made at a branch office of a company. In the course of interpreting the provision of Section 78 of the Companies and Allied Matters Act, the Apex Court in this case, applied Order 12 Rule 8 of the Cross-River State High Court (Civil Procedure) Rules to the effect, that possible personal service could be effected and it does not necessarily have to be at the Registered or Head Office. The confirmation is the use of the word giving which signified personal service under the Rules is therefore deemed competent (if) it is carried out within the jurisdiction of the Court and effected on the appropriate designated officers that is to say, director, secretary or other principal officer.
The case inNBC VS. UBANI (supra) had clearly defeated the contemplation by the 1st and 3rd Respondents that service of the processes must be effected at the Registered or Head Office but simply implies that every originating process or other process requiring personal service may be served on the company by delivery to a director, secretary, other senior, principal or responsible person at the registered, principal or advertised office or by leaving at the place of business of the Company (Branch office or not).
By the provisions of Order 11 Rule 8 of the High Court of the Federal Capital territory (Civil Procedure Rules), 2004 service of processes on a company can be in two ways:
1. by giving the writ or document to any director, secretary or principal officers or
2. by leaving it at the corporate office.
The above plain and unambiguous provisions of Rule 8 clearly do not stipulate as contended by the 1st and 3rd Respondents that service of Court processes must be at the registered or head office of a company. PER IDRIS, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

LLOYD ANGELA & CO. LTD APPELANT(S)

And

1. GREENWICH SECURITIES LTD 2. GREENWICH TRUST GROUP 3. SULE FRIDAY ENEOJO RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Plaintiff brought the matter under the undefended list procedure on the 24th October, 2017 wherein the Plaintiff Now Appellant claims against the Respondents who were the defendants at the trial Court respectively and sought for the following reliefs against them:
1. AN ORDER of the Court against the Defendants jointly and severally to pay the sum of N35,000,000 (Thirty-five Million Naira) being total money collected from the Plaintiff as investment to buy shares without any evidence of shares certificate or account opening in the name of the Plaintiff to show the transaction.
2. AN ORDER to pay 10% on the Judgment sum from the date of judgment until liquidation of the Judgment sum.
3. AN ORDER directing the Defendants to pay 5million as cost of the suit.

Served with the Originating Processes, the Respondents filed their Memorandum of Conditional Appearance, Notice of Intention to Defend and their defences.

The Respondents also filed a Notice of Preliminary Objection which they argued on the 3rd of May, 2018 and the Court proceeded to the hearing of the matter

under the undefended list on the same date and adjourned to the 10th July, 2018 for Ruling on the Notice of Preliminary Objection and or Judgment.

The Learned Trial Judge, Honourable Justice Maryann E. Anenih delivered Judgment in the Suit No- CV/2690/17 on the 11th September, 2018 wherein the trial judge considered the Notice of Preliminary Objection filed by the Respondents just before considering the substantive matter, he declined jurisdiction and accordingly dismissed the matter in favour of the Respondents.

Dissatisfied with the Judgment of the trial Court, the Appellant filed a Notice of Appeal dated 21st September, 2018 comprising of Eight (8) grounds of appeal.

The Appellant, 1st and 3rd Respondents in the appeal before this Court filed and exchanged their respective briefs of argument (The name of the 2nd Respondent was struck out from the writ at the Trial Court).

In the Appellant’s brief of argument as settled by its counsel Otitoju Adekunle Oladapo Esq., dated 15th December, 2018 and filed on the 18th of December, 2018 the following issues for determination were distilled from the grounds of appeal as follows:

Whether the service of the writ of summon on the 1st and 2nd Respondents in this case is a good/Proper Service. (Ground 1 and 2).
2. Whether the Court was right in striking out the 2nd Respondent name from the suit and doing so, disregarded a clear advertisement of the 1st and 2nd Respondent showing the branches and subsidiary of the Company, also insist that the adverse party, must provide certificate of incorporation before he can sue the 2nd Respondent even when the 1st and 2nd Respondent did not deny the advertisement pages of their website. (Ground 3 and 4).
3. Whether the Court was right to conclude that the case of the Appellant is statute barred without considering the affidavit of all the parties to determine the cause of action. (Ground 5).
4. Whether the Court was right to conclude that the matter is for recovery of debt resulting from simple contract and that falls within the scope of Section 7(1) a of the Limitation Act Cap 522 Law of FCT 2007. When it is clear that the case of the Appellant is for recovery of his 35 Million Naira investment given to the 1st and 2nd Respondent through the 3rd Respondent (Ground 6 and 7).

On Issue One, the Appellant Counsel argued that service of the Court order and writ of summons was effected on the 1st and 2nd Respondents which was received by them with a stamp on the received section in line with Order 11 Rule 8 of the High Court of the Federal Capital Territory Abuja (Civil Procedure Rules) 2004. Counsel referred this Court to Pages 11 and 12 of the Record of Appeal.

The Appellant’s Counsel also argued that the service that was received by Timothy Ogundare found at the back of Page 13 of the Record of Appeal was the proof of service of the Notice of Preliminary Objection filed by the 3rd Respondent and thus the Trial Court was in grave error to conclude that service of the originating process was effected on Timothy Ogundare.

The Appellant’s Counsel also argued that even though the said service of the writ of summons was effected on the said Timothy Ogundare who is an executive assistant, it would still be good service. On this Point, he referred this Court to the case of MARK VS. EKE (2004) 5 NWLR (PT. 865) 54.

In concluding this issue, the Appellant’s Counsel urged this Court to hold that the service were good and

proper services under this circumstance.

On Issue Two, the Appellant’s Counsel argued that the Trial Court was in grave error when it struck out the name of the 2nd Respondent from the writ without considering the exhibit attached to the writ especially where the 1st and 2nd Respondent did not deny existence of the Company.

The Appellant’s Counsel also argued that page 69 of the Record of Appeal shows the Exhibit A that was attached with the Counter affidavit to challenge the Preliminary Objection filed by the 1st and 2nd Respondents that the 2nd Respondent is not a juristic personality. Counsel further argued that on the said Exhibit, after Paragraph 4 is the name the Greenwich Group where it was said to have subsidiary Company like Greenwich Securities Limited, Greenwich Asset Management Limited, Greenwich Nominees Limited and Greenwich Properties Limited. He also argued that these are the advertisement page of the 1st and 2nd Respondent to the public and the Public has believed in these advertisements and have continuously engaged in business with them without necessarily having to produce their certificate of incorporation to the public.

The Appellant’s Counsel also argued that he wonders why it is very easy for the lower Court to believe that the 1st Respondent is a juristic person and the 2nd Respondent is not since the certificate of Incorporation was not presented before the Court.

The Appellant’s Counsel further argued that the certificate of incorporation is not the only criteria for the establishment of juristic personality on a party and that this Court should hold that the 2nd Respondent is a juristic personality for the purpose of being liable to his deeds. Counsel also argued that it will be inequity for a party to conduct himself by entering a contract to perform and later resile from it to raise an objection on its legal capacity. On this point, counsel cited the case of CAINCROSS V LORIMER (1860) 130 and MANDILAS LIMITED VS. EKHATOR AYANRU (2000) 1500 CAP 1.

On Issue Three, the Appellant’s Counsel argued that the Court did not consider the affidavit of the 3rd Respondent which stated the reason why the Appellant came to Court after the Respondents were not willing to pay the principal investment and returns on investment as demanded from them by the Appellant but

the Trial Court instead went on a voyage of discovery when it crafted a date for the cause of action for the transaction, even when it was expressly stated in the said affidavit.

On Issue Four, the Appellant’s Counsel argued that the Court was in grave error when it applied Section 7(1)a of the Limitation Act to the transaction and further went on a voyage of its own to discover for itself that the matter is one of simple contract when the matter bothers on recovery of investment in funds paid for the purchase of shares.

The Appellant’s Counsel further argued that assuming without conceding that the matter bothers on simple contract, the Court cannot erroneously misapply the law to the fact as the cause of action arose sometime in September 2017 and not 2007 as imputed by the Court.

The 1st Respondent filed its Brief of Argument dated 6th May, 2019 and filed on the same date as settled by its Counsel, Michael Adinoyi Bello Esq., and the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether the service of the writ of summons on the 1st and 2nd Respondents in this case is a good/Proper service. (GROUND 1 and 2).

Whether the Court was right in striking out the 2nd Respondent name from the suit and in doing so, disregarded a clear advertisement of the 1st and 2nd Respondents showing the branches and subsidiary of the company, also, insist that the adverse party, must provide certificate of incorporation before he can sue the 2nd Respondent even when the 1st and 2nd Respondents did not deny the advertisement pages of their website, (GROUND 3 and 4).
3. Whether the Court was right to conclude that the case of the Appellant is statute barred considering the affidavit of all the parties to determine the cause of action. (GROUND 5).
4. Whether the Court was right to conclude that the matter is for recovery of debt resulting from simple contract and that falls within the scope of Section 7(1)a of the Limitation Act Cap 522 Law of FCT 2007 when it is clear that the case of the Appellant is for recovery of his 35Million Naira investment given to the 1st and 2nd Respondents through the 3rd Respondent (GROUND 6 and 7).

On Issue One, the 1st Respondent’s Counsel argued that it is well settled that the issue of service of

Originating summons and other Court processes on a Defendant or Respondent in a proceeding is central and cardinal in any adjudication by a Court of law and that it is also settled that the plaintiff must comply with all laws and rules relating to service of process both on the Defendant within and outside jurisdiction.

The 1st Respondent’s Counsel argued that Order 11 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 states procedure for the service of an originating summon on a limited Liability Company which is substantially different from service of Court processes on a natural person.

The 1st Respondent’s Counsel also argued that Section 78 of the Companies and Allied Matters Act provided the mode of service of a Court Process on a Company. He also referred this Court to the case of MARK VS. EKE (2004) 5 NWLR (PART 865) PG 54 AT PG 78 – 80 PARAS F A.

The 1st Respondent’s Counsel further argued that the Appellant failed to follow the rules and procedure prescribed for effecting originating process on the 1st Respondent.

The 1st Respondent’s Counsel argued that the Appellant Counsel wrongly contended

at paragraph 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 of the Appellant’s Brief of Argument that the service of the originating summons was good in the circumstances of this Appeal. However, that the law governing service of originating process on a company is that the document is to be served by giving the writ or document to any director, secretary or other principal officers or by leaving it at the corporate office which was not done. Counsel referred this Court to pages 11 and 12 of the Record of Appeal and the case of OKOYE VS CENTRE POINT MERCHANT BANK LIMITED (2008) 15 NWLR (PART 1110) PG 335 AT 357 PARA B.

In conclusion, the 1st Respondent’s Counsel urged this Court to affirm the judgment of the Trial Court.

On Issue Two, the 1st Respondent’s Counsel argued that both the 1st and 3rd Respondents filed a Notice of Preliminary Objection wherein they contend that the 2nd Respondent was not a juristic person. Counsel further argued that only natural and artificial persons are clothe with competence to sue and be sued. On this point, the 1st Respondent’s Counsel cited the case of REPTICO S. A. GENEVA VS. AFRIBANK NIG. PLC (2013) 14 NWLR (PART 1373) PG 172 AT 207 PARAS B – C.

The 1st Respondent’s Counsel argued that it is the duty of the party who brought the Defendant to Court to supply the accurate name of that Defendant. Counsel further stated that proper parties must be before the Court for the Court to be competent and have jurisdiction.

The 1st Respondent’s Counsel also argued in specific response to paragraph 26 of the Appellant’s Brief of Argument that it is not correct that the 1st and 2nd Respondents did not deny the existence of the 2nd Respondent because the 1st Respondent in its affidavit in support of the Notice of Intention to defend stated categorically that the 2nd Defendant is not a legal entity.

The 1st Respondent’s Counsel argued that none of the parties at the Trial Court raised the issue of estoppel and the Appellant’s attempt to raise the issue of estoppel should be nipped in the bud as parties are bound by their pleadings.

The 1st Respondent’s Counsel also argued that where the legal personality of an incorporated company is called into question and issues joined thereon, the onus is on the party claiming the status of juristic personality to establish it by

production of the Certificate of Incorporation. On this point, he cited Section 36(6) of the Companies and Allied Matters Act.

In conclusion on this Issue, the 1st Respondent’s Counsel urged this Court to resolve this issue in favour of the 1st Respondent.

On Issue Three, the 1st Respondent’s Counsel argued that the main complaint of the Appellant is that he advanced the sum of N35 Million Naira (Thirty-Five Million Naira Only) to the 3rd Respondent for the purchase of shares in the 1st Respondent’s Company in 2007. The 1st Respondent’s Counsel further argued that the cause of action arose in 2007 and the action was instituted in 2017 which was 10 years after 2007 when the cause of action arose which is against the intendment of Section 7 of the Limitation Act. Counsel cited the cases of EMIATOR VS. NIGERIAN ARMY (1999) 12 NWLR (PART 631) PG 362 PARA G and OFILI VS. CIVIL SERVICE COMMISSION (2008) 2 NWLR (PART 1071) PG 238 AT 253, PARAS F – H to submit that the determinant for when a cause of action arose is the writ of summons and statement of claim and that parties are bound by their pleading?

The 1st Respondent’s Counsel argued that the

Appellant was wrong to have argued that the Court did not consider the pleadings of the parties in concluding that the case was statute barred. Counsel further argued that the 1st Respondent in its affidavit to show cause contained in Page 24 of the Record of Appeal disputed the collection of the N35 Million Naira purportedly issued in the name of the 1st Respondent and that the 3rd Respondent is her marketer.

In concluding his argument on this issue, the 1st Respondent Counsel urged this Court to hold that the Appellant’s suit at the Court below having commenced on 25th September, 2017 is statute barred and also to dismiss this Appeal.

On Issue Four, the 1st Respondent’s Counsel argued that the 1st Respondent in its affidavit to show cause for leave to Defend the suit at page 24 of the Record of Appeal denied ever receiving the sum of N35 Million Naira from the Appellant or the 3rd Respondent.

The 1st Respondent’s Counsel argued that the Trial Judge did not raise any issue suo motu and the cases cited by the Appellant Counsel on that point does not in any way support the Appellant case in the circumstance.

In conclusion the 1st

Respondent’s Counsel urged this Court to affirm the judgment of the Trial Court and dismiss this Appeal.

The 3rd Respondent also filed its Respondent Brief of Argument dated 6th day of May, 2019 and filed on the same date. The said Brief of Argument was settled by its Counsel Michael Adinoyi Bello Esq., and the following issue were formulated for determination therein:
Whether having regards to the facts of this case, the Trial Court was right when he held that the case of the Appellant is statute barred having being brought outside the 6 years period prescribed by Section 7(1) of the Limitation Act.

The 3rd Respondent’s Counsel also responded to issues 1, 2 and 4 raised by the Appellant as contained in page 3 of the 3rd Respondent’s Brief of Argument.

On Issue one, the 3rd Respondent’s Counsel argued that in determining whether the case of the Appellant is statute barred, it is important to determine the date of accrual of the cause of action. On this point, Counsel cited the case of CO-OPERATIVE BANK LIMITED VS. LAWAL (2007) 1 NWLR (PART 1015) 287. Counsel further argued that in determining the accrual of the cause of action, the only

document the Court may have recourse to, is the statement of claim or as in the instant case the affidavit in support of the Writ of Summons.

The 3rd Respondent’s Counsel also argued that looking at the said affidavit in support of the Writ of Summons that it is clear that the cause of action arose in November 2017 but the suit was filed on the 25th September, 2017 which is 9 years and 8 months after the accrual of the cause of action which is contrary to Section 7(1) of the Limitation Act.

The 3rd Respondent’s Counsel, in response to the Appellant’s Counsel argument on Issue Three where the Appellant’s Counsel argued that the Trial Court was wrong to have considered only the affidavit in support of the writ of summons, that the said argument was misconstrued as it is only the statement of claim or as in cases commenced by affidavit in support of writ of summons, the affidavit in support of the writ of summons. On this point, counsel referred this Court to the Case ofEGBE VS. ADEFARASIN (1987) 1 NSCC (VOL 18) 1. The 3rd Respondent’s Counsel further argued that the Trial Court rightly did not consider the content of the 3rd Respondent’s affidavit in

support of Notice of Intention to Defend.

In Response to Issue 4 raised by the Appellant, the 3rd Respondent’s Counsel argued that the transaction as can be gathered from the affidavit in support of the writ of summons reveals that the transaction falls under the purview of a simple contract and nothing more. Counsel further argued that the Appellant’s Counsel when arguing Issue 4, failed to come under the known law or exception of the provision of the Limitation Act and thus his argument does not carry the force of law.

The 3rd Respondent’s Counsel also adopted the submissions of the 1st Respondent’s Counsel in respect of issues 1 and 2 as raised by the Appellant and urged this Court to affirm the Judgment of the Trial Court and dismiss the Appeal as the Appellant’s case is statute barred.

The Appellant filed a Reply on points of law to the Respondents Brief dated 27th January, 2020 and filed on the 29th January, 2020 and settled by his Counsel Adekunle Oladapo Otitoju.

In the said reply, the Appellant’s Counsel argued that the case of UBA LIMITED VS. MICHEAL O. ABIMBOLU & CO; AMEDE VS. UBA; CO-OPERATIVE BANK LIMITED VS. LAWAL cited by

the 3rd Respondent’s Counsel in the 3rd Respondent’s Brief of Argument are irrelevant to this case. Counsel further argued that the case at hand is one of investment of shares which the Respondents did not deny and cannot change to a simple contract and since the intention of the Investment Act remains, Section 7 of the Limitation Act cannot apply to this case.

Having summarized the arguments of counsel, I wish to adopt the issues raised by the Appellant herein, and I will address the issues thereon:
1. Whether the service of the writ of summon on the 1st and 2nd Respondent in this case is a good/Proper Service,
2. Whether the Court was right in striking out the 2nd Respondent name from the suit and doing so, disregarded a clear advertisement of the 1st and 2nd Respondent showing the branches and subsidiary of the Company, also insist that the adverse party, must provide certificate of incorporation before he can sue the 2nd Respondent even when the 1st and 2nd Respondent did not deny the advertisement pages of their website.
3. Whether the Court was right to conclude that the case of the Appellant is statute barred without considering the

affidavit of all the parties to determine the cause of action.
4. Whether the Court was right to conclude that the matter is for recovery of debt resulting from simple contract and that falls within the scope of Section 7(1)a of the Limitation Act Cap 522 Law of FCT 2007. When it is clear that the case of the Appellant is for recovery of his N35 Million Naira investment given to the 1st and 2nd Respondent through the 3rd Respondent

ISSUE ONE
Whether the service of the writ of summon on the 1st and 2nd Respondents in this case is a good/proper Service.

The requirement for the service of an originating process on a Company is provided for not only in the Rules of Court but also in the Companies and Allied Matters Act.
The Companies and Allied Matters Act has provided under Section 78 that service on a Company shall be in a manner provided by the Rules of various Courts.
Now as it relates to the case at hand, the substantive rule of Court that applies is the High Court of the Federal Capital Territory (Civil Procedure Rules) 2004 which was the substantive rule of Court at the time of filing the suit leading to this appeal.

The High Court of the Federal Capital Territory (Civil Procedure Rules) 2004 provides for the process of service on a company under Order 11 Rule 8 thus:
“when a suit is against a corporate body authorized to sue and be sued in its name or in the name of an officer or trustee, the document may be served subject to the enactment establishing that corporation or company under which it is registered, as the case may be by giving the writ or document to any director, secretary or principal officers or by leaving it at the corporate office.”
From the above provision, it is obvious that when a suit is against a company, the document may be served subject to the enactment establishing the corporation or company under which it is registered. In this case, the enactment is the Companies and Allied Matters Act which has made provision under Section 78 for service on a company to be in the manner provided by the rules of various Courts.
This now leaves us to the provisions of the High Court of the Federal Capital Territory (Civil Procedure Rules) 2004 to determine how a document initiating a suit against a company should be served on that company. Looking at

the concluding part of the said Order 11 Rule 8 which stated thus:
“…by giving the writ or document to any director, secretary or principal officers or by leaving it at the corporate office.” (Emphasis Mine)
The phrase “by leaving it at the corporate office” has caught my attention. What then could be the meaning of corporate office?
A corporate office to my mind is the main office or headquarters of a corporation where top decisions are made. The corporate office is generally where the executives of the company maintain their offices.
The corporate office could also be described as where the organisation has its principal place of operation.
Among the bone of contention of the 1st Respondent at the trial Court was that the Appellant did not comply with the provisions of both Section 78 of the Companies and Allied Matters Act and Order 11 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure Rules), Abuja.
The 1st Respondent is a corporate entity registered under the Companies and Allied Matters Act and did argue especially at page 55 of the Record of Appeal that its registered address is at Plot 1698A Oyin

Jolayemi Street, Victoria Island, Lagos while the originating processes in this suit were served on the 1st and 2nd Respondents at its branch office at Cocharis Centre, 4th Floor, Plot 388, Central Business District, Abuja.
It is trite that the general procedure for effecting service of Court processes is governed by the provisions of Section 78 of the Companies and Allied Matters Act CAP C20 Laws of the Federation of Nigeria, 2004. It is equally not in doubt, that the decisions of the Apex Court in the case of MARK VS. EKE (2004) 5 NWLR (PART 1398) 421 cited by the 1st Respondent’s Counsel, is to the effect that service of Court processes on a company such as the 1st and 2nd Respondents must be effected at the registered office of the said company. Otherwise, it is bad and ineffective if service is effected on a company at a branch office thereof.
However, in a latter decision in the case of NBC VS. UBANI (2014) NWLR (PT. 1398) 421, which the Appellant’s Counsel has cited, the Apex Court held inter alia that possible personal service of Court processes could equally be made at a branch office of a company. In the course of interpreting the provision of

Section 78 of the Companies and Allied Matters Act, the Apex Court in this case, applied Order 12 Rule 8 of the Cross-River State High Court (Civil Procedure) Rules to the effect, that possible personal service could be effected and it does not necessarily have to be at the Registered or Head Office. The confirmation is the use of the word giving which signified personal service under the Rules is therefore deemed competent (if) it is carried out within the jurisdiction of the Court and effected on the appropriate designated officers that is to say, director, secretary or other principal officer.
The case inNBC VS. UBANI (supra) had clearly defeated the contemplation by the 1st and 3rd Respondents that service of the processes must be effected at the Registered or Head Office but simply implies that every originating process or other process requiring personal service may be served on the company by delivery to a director, secretary, other senior, principal or responsible person at the registered, principal or advertised office or by leaving at the place of business of the Company (Branch office or not).
By the provisions of Order 11 Rule 8 of the High Court of the Federal Capital territory (Civil Procedure Rules), 2004

service of processes on a company can be in two ways:
1. by giving the writ or document to any director, secretary or principal officers or
2. by leaving it at the corporate office.
The above plain and unambiguous provisions of Rule 8 clearly do not stipulate as contended by the 1st and 3rd Respondents that service of Court processes must be at the registered or head office of a company.
A closer examination of the same has shown that service of Court processes has to follow in the manner provided by the rules of the particular Court concerned, which in this instance is the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004 more particularly Order 11 Rule 8 thereof. This is indeed a remarkable departure from the provisions of the Companies Act 1968 as regards service of Court processes on the Director, Secretary or principal officers which has to be at the registered office of the corporation or company.
From the argument of the 1st and 2nd Respondents’ Counsel, Oyin Jolayemi Street, Victoria Island, Lagos is the registered office of the

1st Respondent and from the authorities cited above, it is clear that service on a company need not be at the registered address of the Company. This leaves us to whether the said originating process was served on any director, secretary or principal officers or by leaving it at the corporate office.
Firstly, I have looked at the proof of service of the originating process at page 11 of the Record of Appeal and there is nothing to show that the said originating process was signed for by any principal officer, director or secretary of the 1st and 2nd Respondent as against the finding of the Trial Court in Page 12 of the Record of Appeal that One Timothy Ogundare an Executive Assistant acknowledged receipt on behalf of the 1st and 2nd Respondents rather it leaves us to the second aspect of the service on a company as provided under the rules i.e. by leaving at the corporate office. The 1st and 2nd Respondents has argued that Plot 1698A Oyin Jolayemi Street, Victoria Island, Lagos is its registered address while Cocharis Centre, 4th Floor, Plot 388, Central Business District, Abuja is its branch office.
The 1st and 2nd Respondents did not make it clear

which of this serves as its corporate office to enable the easy application of the provision of Order 11 Rule 8 but applying the authority in NBC VS UBANI (Supra), which is to the effect that service on the branch office of a company is good service, I do not see any reason for the trial Court to hold otherwise. There is no dispute that the said originating process was received by the 1st and 2nd Respondents at the branch office and it is also evident from the proof of service of the said process contained at page 12 of the Record of Appeal that the process was received by the 1st and 2nd Respondents at Coscharis Centre, Abuja.
Even the Rules of Court has now moved on from the stage of service of originating processes on a company at its registered office. See Order 7 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure Rules) 2018 which provides thus:
“Subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating process requiring personal service may be served on a registered company, corporation or body corporate by delivery at the head office or any other place of

business of the organization within the jurisdiction of the Court.” (Emphasis Mine)
It is therefore my strong view that having received the originating processes at Coscharis Centre, Abuja which is a place where the 1st and 2nd Respondents carry on their business (of which they have not denied) and by virtue of the authorities and my findings above, the service of the originating processes on the 1st and 2nd Respondents by leaving it at Coscharis Centre, Abuja is valid and in compliance with Section 78 of the Companies and Allied Matters Act and Order 11 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004. This Issue is thus resolved in favour of the Appellant.

ISSUE TWO
Whether the Court was right in striking out the 2nd Respondent name from the suit and doing so, disregarded a clear advertisement of the 1st and 2nd Respondent showing the branches and subsidiary of the company, also insist that the adverse party, must provide certificate of incorporation before he can sue the 2nd Respondent even when the 1st and 2nd Respondent did not deny the advertisement pages of their website.

The Appellant has argued that the trial Court was in error when it struck out the name of the 2nd Respondent from the writ of summons without considering the Exhibit A contained in page 69 of the Record of Appeal.
The Appellant’s Counsel has also argued that the said Exhibit A is argued to be the advertisement page of the 1st and 2nd Respondents to the public and that the said advertisement, clearly shows the services offered by the 1st and 2nd Respondents.
The Appellant’s Counsel further argued that the certificate of incorporation is not the only criteria for the establishment of juristic personality and that the 1st and 2nd Respondents ought to be estopped by their conduct of not denying the appearance of the 2nd Respondent as Greenwich Trust Group on their website.
The 1st and 3rd Respondents’ Counsel had argued that the 2nd Respondent was not a juristic person in their Respective Notices of Preliminary objection contained at pages 49 – 66 and 76 – 88 of the Record of Appeal and which argument this Court will now concern its self with.
I have looked at all these arguments and the said Exhibit A at page 69 of the Record of Appeal and these

argument of Counsel cannot take away the fact that by virtue Section 36(6) of the Companies and Allied Matters Act, the proof that a Company is a juristic person is the evidence of its Certificate of Incorporation. See the case of MAGBAGBEOLA VS. SANNI (2005) LPELR – 1815 (SC) wherein the Supreme Court per Katsina-Alu, JSC reiterated thus:
“The best evidence of incorporation is the production of the certificate of incorporation.”
Now, taking a look at the position of the law as regards proof in litigation, by virtue of Section 135(1) and (2) of the Evidence Act, 2011 (as amended), whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. See the case of IMANA VS. ROBINSON 1979 3 – 4 SC 1.
It is after a plaintiff has proved his case that the burden of proof shifts to the defendant.
In the case of DAIRO & ORS VS. REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2017) LPELR — 42573 (SC), the

Supreme Court reiterated thus:
“In G & T invest Ltd v. Wit & Bush Ltd (2011) 8 NWLR (Pt. 1250) 500 at 540 Paras C – D this Court per Adekeye JSC said: “The law is that where the legal personality of Incorporated Company is called into question and issue joined thereon„ the onus is on the party claiming the status of juristic person to establish it and the corporate status of a body is established by the production of its Certificate of Incorporation…. ”
(Emphasis Mine)
In Nduka VS. EZENWAKU (2001) 6 NWLR (PART 709) AT 517, it was held that:
“… Where the juristic status of a defendant company is put in issue, the plaintiffs must prove that legal personality by producing the company’s certificate of incorporation….”
It is to my mind that the Appellant in this case, has a duty to establish his claim that the 2nd Respondent was incorporated under the Companies and Allied Matters Act thus assuming the status of a juristic person.
The Appellant failed to prove the incorporation of the 2nd Respondent as a company by production of the certificate of incorporation. I must add, in agreement

with the decision of the Trial Court that the Appellant has not shown how the 2nd Respondent is a juristic person.

It is also important that I add here also, that the Trial Court considered and evaluated the said Exhibit A contained in page 69 of the Record of Appeal. See page 125 of the Record of Appeal.

It is trite that once the Court of Appeal has accepted the evaluation of the evidence by the trial Court and its resultant conclusions, it cannot resile from such acceptance and embark on a fresh re-assessment and evaluation of the same evidence in order to substitute its own views for that of the trial Court.

It is my conclusion on the findings which I have made on this issue and in total agreement with the decision of the Trial Court on this issue that it would not only be unreasonable for this Court to assume that the 2nd Respondent is a juristic person capable of suing and being sued, the action was not properly instituted against the 2nd Respondent.

I wish to further add that the Trial Court was right in striking out the name of the 2nd Respondent from the suit having considered all the evidence before it in this regard. This Issue

is thus resolved against the Appellant in favour of the 1st and 3rd Respondents.

ISSUE THREE
Whether the Court was right to conclude that the case of the Appellant was statute barred without considering the affidavit of all parties to determine the cause of action

It is now well settled that in determining the cause of action in a suit, the only document which the Court will look at are the writ of summons and the statement of claim. See the cases of ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS (2007) 2 SC 48; ALHAJI USMAN DANTATA VS. MOUKTAR MOHAMMED (2000) 7 NWLR (PT. 664) 176; ADIMORA A. VS. AJUFO (1988) 3 NWLR (PT. 80) 1; AKIBU VS. ODUNTAN (2000) 13 NWLR (PT. 685).
In the case of ZUBAIR VS KOLAWOLE (2019) LPELR – 46928 (SC), the Supreme Court per Kekere-Ekun, JSC (Pp. 19-20, Paras. F – A) reiterated citing the case of ADEKOYA VS F.H. A. (2008) 11 NWLR (PART 1099) 539 thus:
It was held that a cause of action arises the moment a wrong is done to the plaintiff by the defendant and the wrong which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a Court of law by way of enforcement.”
(Emphasis Mine)

A cause of action can be defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person the right to judicial relief. A cause of action is the right to enforce an action. In other words, a cause of action is the operative fact or facts, the factual situation which give rise to a right of action which itself is a remedial right. See the case of ATTORNEY-GENERAL OF BAYELSA STATE VS. ATTORNEY-GENERAL OF RIVERS STATE (2006) LPELR – 615 (SC).
In the case of P. W. UDOH TRADING CO. LTD VS. ABERE (2001) FWLR (PART 57) 900, (2001) 11 NWLR (PART 723) 114 AT 129 which dealt with the point of when the cause of action arises. Kalgo, JSC summarised the position thus:
“What then is the cause of action and when does it arise. Cause of action has been defined by Courts to mean a combination of facts and circumstances giving rise to the right to file a claim in Court for remedy. It includes all those things which are necessary to give a right of action and every material fact which is material to be proved to entitle the plaintiff to succeed. The cause

of action arises as soon as the combination of the circumstances mentioned above have accrued or happened and it is the act on the part of the defendant which gives the plaintiff the cause of complaint.”
(Emphasis Mine)
On the other hand, accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin to maintain his cause of action.
Now looking at the authorities cited above and having them in mind while I take a stand on this issue at hand, it is important for me to take a look at the writ of summons and the affidavit attached thereto to determine when the cause of action arose.
The Appellant claimed that he gave a cheque of N35,000,000 to the 3rd Respondent with the name of the 1st Respondent for the money to be invested in the 1st Respondent in shares. He also claimed that he was debited and after the 1st Respondent cleared the cheque of N35,000,000, the 3rd Respondent refused to pick his calls neither has the Appellant being given details of how the money was invested and also he has not been given his share certificate.
The Learned Trial judge held in page 141 of the Record

of Appeal thus:
“…To my mind and in line with the authorities cited above, the cause of action in this matter arose after the 1st Defendant made several calls and demands following cleared cheque of N35,000,000 (Thirty-Five Million Naira) as seen in the statement of account in Exhibit “L2” after which according to the Plaintiff/Respondent, the 3rd Defendant refused to pick her managing director’s calls nor respond to his demands on details concerning the investment.”
(Emphasis Mine)
At Page 142 of the Record of Appeal, the Trial Court went further to hold thus:
“In the event therefore, suffice to say that the cause of action appears to have as a matter of fact arisen in 2007 as averred but the Plaintiff relaxed for over nine years before instituting an action against the Defendants in 2017. Thus, this action is statute barred as it has been caught up by the statute of limitation.
The Plaintiff has not led any further facts outside events of 2007 on the accrual of action, to clarify her delay.” (Emphasis Mine).
Firstly, looking at the authorities I had already cited above, the conclusion that

can be given on when a cause of action arises is simply when the breach that is complained of arose. if the breach leading to the cause of action arose when the 3rd Respondent refused to pick the Appellant’s calls nor respond to his demands on details concerning the investment, then what date can we say the actual breach occurred in the transaction at hand?
I do not know how the Trial Court came to the conclusion at page 142 of the Record of Appeal that the cause of action arose in 2007 when the writ of summons and the affidavit attached to the Writ of summons did not reveal facts as relates to when the calls were made, when the share certificate and details of the investment was agreed to be issued or given respectively failure of which had resulted to a breach leading to the cause of action.
In my own mind, I strongly believe that nothing in the affidavit in support of the writ of summons shows when the cause of action actually arose and it is my opinion that the Trial Judge has embarked on speculation which the Court is advised to avoid at all times. See the case of AGIP (NIG) LTD VS. AGIP PETROLI INTERNATIONAL (2010) 5 NWLR (PART 1187) 348 AT

413 PARAGRAPHS B – D, wherein the Supreme Court held inter alia thus:
“It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of laws are Courts of facts and laws. They decide issues on facts established before them and on laws.”
Secondly, if there were no sufficient facts in the affidavit to show when the cause of action arose, my question is why then did the matter not proceed to full trial where the parties can file their pleadings and lead evidence on the facts in the pleadings?
Again, in deciding if an action is caught by the Statute of Limitation, the time must be ascertained when the right or cause of action accrued to a party. The cause of action would accrue when it becomes complete, such that the aggrieved party can begin and maintain his claim. Also, what must be looked into is the Writ of Summons and the Statement of Claim (in this case, the affidavit in support of writ of summons) alleging when the wrong which gave the Plaintiff a cause of action was committed. Comparison must be made of the date when the said action was committed and when the Writ was subsequently filed.

The question that has now arisen is what is the exact date of the accrual of the action? Obviously, this date cannot be determined from the writ of summons and the affidavit in support of same. This situation has now caused my hands to be tied as there is nothing more I can do as regards to resolving this issue. This issue is therefore not resolved in favour of any of the parties as there is nothing to show from the writ of summons and the affidavit in support, the actual date the cause of action arose.

ISSUE FOUR
Whether the Court was right to conclude that the matter is for recovery of debt resulting from simple contract and that falls within the scope of Section 7(1) a of the Limitation Act Cap 522 Law of FCT 2007, When it is clear that the case of the Appellant is for recovery of his 35 Million Naira investment given to the 1st and 2nd Respondent through the 3rd Respondent.

It is the argument of the Appellant Counsel that the Trial Court was in error to apply Section 7(1) a of the Limitation Act on the transaction and that the Trial Court went on a Voyage to discover for itself that the matter is a simple contract and thus applied the law to

it when there is no dispute as to the nature of the matter. The Appellant’s Counsel further argued that the matter was basically investment in shares and not any form of simple contract.

Looking at the writ of summons and the affidavit in support which the Trial Court also considered in coming to the conclusion that the matter was one of simple contract (See page 141 of the Record of Appeal particularly the second paragraph), it is clear that the Appellant’s claim at the Trial Court is that the 3rd Respondent persuaded him to invest in shares in the 1st and 2nd Respondent Company and he issued a Cheque in the name of the 1st Respondent to the 3rd Respondent and after which he was not given details on his investment and also, he was not given a share certificate.

These whole transactions simply appear to me to be a contractual one wherein the Appellant now claims that 1st and 3rd Respondents have failed to fulfil their obligations therein.

It is trite that a contract is made where there exists the following: (a) an offer, (b) acceptance, (c) consideration, (d) capacity to contract; and (e) intention to create legal relationship. In other words,

contract is formed once there is an offer by the offeror to the offeree which is accepted by the offeree backed by consideration. At that point in time, the parties to the contract are said to be ad idem or in agreement and that agreement or contract is binding on both parties and is enforceable by action. In the instant case, all the ingredients of a valid contract were present by the agreement of investment in shares in the 1st Respondent which is now in dispute in the sum of N32,000,000 (Thirty-Five Million Naira).

I do not agree with the Appellant’s Counsel’s submission in paragraph 4.6 of the Appellant Brief of Argument that the matter was basically about investment in shares and that there was no dispute by the Respondents that the matter bothers on recovery of investment funds of N35,000,000.

To my own mind, the Trial Judge was right when he came to the conclusion that the matter was one of a simple contract and that the applicable statute of limitation was the provision of Section 7(1) (a) of the Limitation Act for a determination of the question whether the matter was statute barred being a contractual transaction. However, where I have a

problem is how the Trial Judge came to the conclusion that the matter was statute barred having been filed outside the time for filing of contractual actions, when the affidavit in support of the writ of summons at the Trial Court never stated the time when the cause of action arose, neither can it be determined from the aforementioned affidavit when the cause of action arose.

Also how did the Appellant arrive at the date September, 2017 as when the cause of action arose when such facts were not stated in the writ of summons or in the affidavit in support thereof?

From my findings on this issue as already made above, I resolve this issue against the Appellant.
In the final result, I resolve as follows:
1. The Appellant properly served the originating processes on the 1st and 2nd Respondents. I hereby set aside the decision of the Trial Court on this issue.
2. The Appellant has failed to prove that the 2nd Respondent is a juristic personality. I hereby uphold the decision of the Trial Court on this point.
3. The writ of summons and the affidavit in support does not contain facts which reveals when the cause of action in the suit

leading to this appeal arose.
4. Even though I agree with the findings of the Court that the matter is one of contract, I do not agree with how it arrived at the conclusion that the matter is statute barred as there is no fact in the writ of summons or the affidavit in support from which the Trial Court could have ascertained and come to that conclusion.

In the course of writing this judgment, the need arose for the Court to invite the parties to address it on the jurisdiction of the FCT High Court to entertain this matter in the light of the provision of Section 284(1) of the Investment and Securities Act Cap 124 Laws of the Federation of Nigeria 2004.

Learned counsel for the Appellant argued that the claim was a liquidated money demand to recover the sum of N35 Million, and that this fell within the jurisdiction of the trial Court by Order 35 of the FCT High Court (Civil Procedure) Rules. That the jurisdiction of the trial Court on debt and liquidated money demand had not been eroded by S. 284 of the Investment and Securities Act.

Learned counsel for the 1st Respondent argued that the claim before the trial Court was for recovery of sums

for investment to buy shares, and that the facts related to investment in shares. Learned counsel argued that the Court with the requisite jurisdiction is the Investment and Securities Tribunal by virtue of Section 284(1)(a)(ii) of the Investment and Securities Act Cap 124 Laws of the Federation of Nigeria 2004.

Learned counsel for the 3rd Respondent aligned himself with the submissions of learned counsel to the 1st Respondent.

It is settled law that where pleadings have been filed, the issue of the Court’s jurisdiction is best determined from the averment in the plaintiff’s statement of claim, in this case, the affidavit filed by the Appellant herein, and the claim as endorsed on the writ of summons. See IKINE VS. EDJERODE (2001) 18 NWLR (PT. 745) 446; CBN VS. SAP NIG. LTD (2005) 3 NWLR (PT. 911) 152; SPDCN LTD VS. GOODLUCK (2008) 4 NWLR (PT 1107) 294.

The writ of summons filed in this case and the supporting affidavit can be found on pages 1 — 7 of the record of appeal. It is clear from the facts averred and the claim endorsed on the writ of summons, that this action is one in contract simpliciter. It is based on money had and received, in

which case the Investment and Securities Tribunal does not have jurisdiction to entertain same by virtue of Section 284 of the Investments and Securities Act Cap 124 Laws of the Federation of Nigeria 2004.
For the avoidance of doubt, Section 284 provides as follows: –
“284.
1) The Tribunal shall, to the exclusion of any other Court of law or body in Nigeria, exercise jurisdiction to hear and determine any question of law or dispute involving:
a) a decision or determination of the commission in the operation and application of this act, and in particular, relating to any dispute: (i) between capital market operators; (ii) between capital market operators and their client; (iii) between an investor and a securities exchange or capital trade point or clearing and settlement agency; (iv) between capital market operators and self-regulatory organization;
b) the Commission and self-regulatory organization;
c) a capital market operator and the Commission;
d) an investor and the Commission;
e) an issuer of securities and the Commission; and
f) disputes arising from the administration, management and operation of collective

investment schemes.
2) The Tribunal shall also exercise jurisdiction in any other matter as may be prescribed by an Act of the National Assembly,
3) In the exercise of its jurisdiction, the Tribunal shall have the power to interpret any law, rules or regulation as may be applicable.”
It is clear from the law quoted above that the jurisdiction of the Investment and Securities Act had not been ignited from the facts presented by the Appellant at the Court below. The lower Court therefore properly assumed subject matter jurisdiction over the case.

Having dealt with the issue of jurisdiction, I shall deal with the matter on the merits.

The procedure adopted by the Appellant at the trial Court was available for the recovery of debt or liquidated money demand in cases where the plaintiff believes that there is no defence to his claim. See MAJA V. SAMOURIS (2002) 7 NWLR (PT. 765) 78; LONESTAR DRILLING NIG. LTD VS. NEW GENESIS EXECUTIVE SECURITY LTD (2011) RSLR 113.
It is settled that the purpose of the procedure under the undefended list is to enable the plaintiff obtain summary judgment without trial, where his case is patently clear and<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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unassailable. See SODIPO VS. LEMNINKAINEN OY(1986) 1 NWLR (PT. 15) 220, The undefended list proceedings is not intended to shut out a defendant from contesting the suit brought thereunder. See NISHIZAWA VS. JETHWANI (1984) 12 SC 234. Where a defendant can show in his affidavit that he has a defence on the merit, or there is a serious conflict in the affidavit of the parties or it raises an issue that is triable, it is on the side of justice to let him in to defend the action by transferring such matter to the general cause list of the Court for hearing on pleadings. See ADEBISI MACGREGOR ASSOCIATES LTD VS. NIGERIAN MERCHANT BARK LTD (1996) 2 SCNJ 72; (1996) 2 NWLR 431) 378.
In an action brought under this procedure, the Court is required to consider only the evidence contained in the affidavit filed by the defendant in support of the notice of intention to defend the suit. Once the Court comes to the conclusion that the affidavit does not disclose a defence on the merit or a triable issue, then the Court is to proceed with the hearing of the suit as an undefended suit and enter judgment accordingly without calling on the defendant, even if present in Court, to answer or be heard.

Where however there is a conflict in the affidavits of the parties, evidence is the only way by which the conflict can be resolved. In that circumstance, it becomes mandatory to enter the suit on the general cause list for a full trial. See EBONG VS. IKPE (2002) 17 NWLR (PT. 797) 504.
It must also be borne in mind that the undefended list procedure is a peculiar procedure intended only to apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for the mere purpose of delay. As stated by Ogwegbu, JSC in ADEBISI MACGREGOR ASSOCIATES LTD VS. NIGERIAN MERCHANT BANK LTD (SUPRA) AT PAGE 81 of the law report, “that it is for the plain and straight forward and not for the devious and crafty.” As a general principle, where a defendant shows that he has a defence, or even a reasonable probability that he has a bona fide defence, he sought to have leave to defend. See UNIVERSITY OF NIGERIA VS. ORAZULIKE TRADING CO. LTD (1989) 5 NWLR (PT. 119) 19.
I have carefully perused the processes filed by the 3rd Respondent which can be found at

pages 26 – 48 of the record of appeal and by paragraph 4 of the counter affidavit, I am clear that the issues have been joined between the parties by the depositions contained therein. The facts contained therein contradict materially the depositions made by the Appellant in the affidavit in support. Where the affidavits of the parties disclose joinder of fundamental issues, as in this case, the law requires that the defendant is allowed to defend the action. See ILORIN EAST LOCAL GOVT. VS. ALASINRIN (2012) ALL FWLR (PT. 645) 226; KEYSTONE BANK LTD VS. JOA & S LTD (2015) 1 NWLR (PTC 1439) 98.
In the light of the facts of this case, it is in the interest of justice that this matter be placed under the general cause list and sent back to the trial Court for a full trial.

The appeal succeeds in part. In the circumstances, I am of the strong and unshaken view that this matter be sent back to the trial Court for full trial on the merits under the general cause list before another judge of the Court, and it is so ordered. Parties are to bear their respective costs.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft form

the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.
I am in agreement with the reasoning and the conclusion which I adopt as mine.

In this appeal, the lower Court misunderstood the application of the Statute of Limitation. When time is limited for an action, the time starts running from the day the cause of action accrues. In P.N. Udoh Trading Co. Ltd v. Abere & Anor. (2001) LPELR 28993 (SC), the Supreme Court, per Kalgo, JSC, held that:
“Cause of action has been defined by Courts to mean a combination of facts and circumstances giving rise to the right to file a claim in Court a remedy, It includes all those things which are necessary to give a right of action and every material fact which is material to be proved to entitled the plaintiff to succeed. See Patkun Industries Ltd v. Niger Shoes Ltd (1988) 5 NWLR (Pt. 93) 138, Ibrahim v. Osim (1987) 4 NWLR (Pt. 67) 965, Bello v. AG Oyo State (1986) 5 NWLR (Pt. 45) 828. The cause of action arises as soon as the combination of the circumstances mention above accrued or happened and it is the act on the part of the defendant which gives the plaintiff his cause of complaint.”

In the instant case, the cause of action did not arise from the date money changed hands. It arose from the date a dispute emerges leading to the demand of the Share Certificates or the money given out for Shares. The Supreme Court in Egbe v. Adefarasin (1987) LPELR – 1032 (SC), deals with the issue of limitation as follows:
“How does one determine the period of limitation? The answer is simply by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses. If the time on the Writ is beyond the period allowed by the Limitation Law, then the action is statute barred.”
A cursory look at the Writ of Summons and the other Originating Processes in the instant case will show that this matter is not statute-barred. It is still live and the lower Court ought to have heard the case on merit. This Court would have looked into the merit but for the fact that the merit was not considered by the lower Court, the only thing to do

is to remit the case back to the lower Court for consideration on merit.

With this and the fuller reasons advanced in the lead judgment, I hold that this appeal has merit and it is hereby allowed. I agree with my learned brother that the matter is not statute-barred and that the case should be placed on the general cause list and heard on merit by another judge of the court.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA and I am in complete agreement with the exhaustive reasoning and conclusion arrived at. I have nothing useful to add.

I also allow the Appeal in part and return the claim to the Court below for trial on the merit. I also abide by the other orders made therein.

Appearances:

Oladapo Otitoju Esq., with him, T. Olabode Esq. For Appellant(s)

M. Kayode Esq., with him, A. F. Obiwumma Esq. – for the 1st Respondent
M. Bello Esq. – for the 3rd Respondent For Respondent(s)