MANDATE INTERNATONAL LIMITED v. DANGOTE CEMENT PLC & ANOR (2014)

MANDATE INTERNATONAL LIMITED v. DANGOTE CEMENT PLC & ANOR

(2014)LCN/6761(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of January, 2014

CA/MK/248/2009

RATIO

WORDS AND PHRASES: CAUSE OF ACTION IN A SUIT

A cause of action in a suit means a group of operative facts giving rise to one or more bases for suing: a factual situation that entitles one person to obtain a remedy in court from another person. See Blacks Law Dictionary, 8th Edition at page 235. In the case of Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 20 paras. D-E, Oputa, JSC explains what amounts to cause of action thus:

“Now let us look at the meaning of cause of action. It is admittedly an expression of that which defiles precise definition…In other words a cause of action is the operative fact or facts, the factual situation which gives rise to a right of action, which is itself a remedial right.” Per MOHAMMED AMBI-USI DANJUMA, J.C.A.

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

Between

MANDATE INTERNATONAL LTD Appellant(s)

AND

DANGOTE CEMENT PLC
GBOKO PLANT Respondent(s)

MOHAMMED AMBI-USI DANJUMA, J.C.A.:(Delivering the Leading Judgment) This Appeal is against the judgment of the Benue State High Court sitting in Makurdi delivered on 18th day of June, 2009 in suit No. MHC/248/2008 and is contained at page 89 – 92 of the Record of Appeal.

The Appellant filed an original Notice of Appeal containing 5 Grounds within time and same is contained at pages 94 – 100 of the Record of Appeal. With Leave of this Court granted on 11-2-13, 3(three) additional Grounds of Appeal were filed vide Motion No. CA/MKD/M/2012 dated and filed on the 18/10/12.

It is pertinent and instructive to note that by the said Motion, the Appellant, then as Plaintiff/Applicant was also granted the following reliefs, to wit.

1. An order substituting Dangote Cement Plc, (Gboko Plant/Present Appellant) for Benue Cement Company Plc (then the Defendant)

2. Leave to raise and argue a fresh point of law contained in the proposed additional Grounds (six) not argued at the trial Court.

3. Leave to file 3 Additional Grounds of Appeal tagged Grounds 6, 7 and 8 in the proposed Notice of Additional Grounds of Appeal the proposed Amended Notice of Appeal and the Amended Notice of Appeal.

4. Leave to amend its Notice of Appeal dated and filed on the 3rd day of September, 2009 and Leave to amend the Appellant’s Brief of Argument to reflect the amendments sought a priori.

The solo Motion seeking the composite reliefs, therein it must be stated was granted in the interest of speedy dispensation of justice.

Having cleared the coast, the Appellant herein, filed the Appellant’s amended Brief of Argument on 22/2/13 and an Appellant’s Reply Brief of Argument on 18/3/13. For clarity, it is emphasized that the Amended Notice of Appeal filed on 18/10/12 was deemed filed on 22/2/13 and so also the Appellant’s amended Brief of Argument was filed within time, then followed the filing of the Respondent’s Brief of Argument on the 6th day of march, 2013.

From the 8 Grounds of appeal, the Appellant by his learned counsel S. A. Ngavan, Esq. distilled 4 Issues for determination, whilst the Respondent, by his learned counsel, P. A. Mbahon, Esq. formulated a sole Issue for our determination of this Appeal.

At the hearing of this Appeal on the 10th of October, 2013, S. A. Ngavan, Esq. identified all the processes, he had filed on behalf of his client and adopted the Appellant’s Briefs of Argument and urged that the Appeal be allowed. He further urged that the judgment of the Trial High Court be set aside and/or the alternative reliefs sought be granted.

On his part, P. A. Mbahon, Esq. urged for the affirmation of the judgment after adopting the Respondent’s Brief of Argument filed on 6/3/13.

Learned Counsel contended that the said judgment was well founded upon the proof of facts established from the pleadings. For its cruciality in the determination of this Appeal, I shall first attempt a resume of the facts of the case leading to this Appeal and shall reproduce where necessary the pleadings thereto before delving into the submissions of the respective parties before this Court.

At the Lower Court the Plaintiff had sued the Defendant/Respondent for specific performance of a sale of goods contract and alternatively claimed damages for breach of contract as per paragraph 15(1) of his Statement of Claim thus:

“15(1) An Order directing the Defendant to supply to the Plaintiff a total of 87.57 tones of cement ordered for at the rate they were ordered in 2001 and 2002.

ALTERNATIVELY:

2. Nine Hundred and Nine Thousand Naira (N909,000) only, special damages being money paid for cement not supplied.

(b) General damages of Four Million, Ninety-One Thousand Naira (N4,091,000.00) only for breach of contract occasioning loss of earning in convenience and loss of business opportunity.”

In paragraphs 3, 4, 5 and 6 of its Statement of Claim, Plaintiff had averred that between 2001 and February 2002, the Plaintiff had ordered the total cement claimed in Paragraph 15(1) of the statements of Claim and paid the total sum alternatively claimed as special damages in paragraph 15(2) of the Statement of Claim. The plaintiff also averred in paragraph 9 of the statement of claim that not long after the cement orders were made and paid for by the Plaintiff, the production of cement at the Defendant’s factory became skeletal leading to the non-supply of the cement ordered and paid for by the Plaintiff until in 2005 when a new management came on board that full production resumed. That while other creditors’ claims were verified by the new management, its own claims were not verified even though presented.

The Plaintiff finally averred in paragraph 12 of the claim and testified unchallenged and uncontroverted that it was only on the 9th day of September, 2008 that the Defendant informed it that its claims were not to be treated, not having been verified. During the pretrial, the following Issues were formulated for determination and accepted by the parties:

1. Whether or not the Defendant has fulfilled his obligation under the agreement for the supply of cement to the plaintiff.
2. If Issue one above is answered in the negative then whether or not the plaintiff should be entitled to damages for breach of contract and to what extent.

At the trial Exhibits B, B1-B7 were admitted in evidence. The Defendant/Respondent acknowledged the subsistence of the contract in paragraphs 4, 6 and 11 (ii) and pleaded performance in paragraph 7 of his Statement of Defence.

At the close of hearing, the Trial court entered judgment for N424,060.00 being admitted sums indebted in favour of the Appellant but failed to consider other concessions and admissions also made but went ahead to hold that those other claims and others were statute barred and therefore dismissed those claims accordingly.

The Plaintiff therefore has appealed to this court on 5 Grounds and with leave of this court 3 additional Grounds of Appeal tagged Grounds 6, 7 and 8 were filed and new Issues formulated therefrom.

After the filing and exchange of Briefs of Argument in accordance with the Rules of this Court the respective counsel for the parties on behalf of their clients adopted their client’s respective Briefs of Argument and urged that the appeal be either allowed or dismissed as appropriate.

On his part the Appellant formulated 4 Issues for the determination of this Court to wit:

1. Whether the trial judge was right when he threw overboard the respective cases of the parties presented for trial and went on a wild voyage to discover and make an entirely different case for the parties, particularly the Respondent. (Distilled from Grounds 1 and 2).

2. Whether the learned trial judge was right in not considering the several admissions and concessions made by the Respondent in its Statement of Defence, evidence and final address and its failure to plead the limitation law of Benue State as waiver of the limitation period. (Ground 6)

3. Whether the learned trial judge was right in refusing or failing to appraise and evaluate the evidence and to pronounce on the merit of the case and yet proceeding to hand pick which evidence to act upon (Additional Grounds 7 and 8).

4. Whether the learned trial judge did not misdirect himself as to when the cause of action actually arose in the case. (Grounds 3, 4 and 5).

The Appellant argued Issues 1 and 2 together. In a nutshell, it was argued on the joint Issues 1 and 2 that neither in the pleadings, evidence nor in addresses was the question of Limitation Law pleaded or raised by the Respondent in order to defeat the Appellant’s claim. That rather than try the respective cases raised, the judge went on a goose chase of the Limitation Law and found one in Section 18 of the Benue State Limitation Law.

It was submitted that no court is empowered to do a case for any party except the case as presented by the party himself in his leadings, evidence and address. Counsel referred to Federal Capital Development Authority v. Alhaji Musa Naibi (1990) 3 NWLR (Pt. 138) page. 270 at 282 wherein Nnamani, JSC stated in respect of Decree No. 17 of 1984 which was not relied upon by the Respondent thus:

“It was not pleaded by the Respondent and it was not part of his case. The Trial Court and the Court of Appeal ought not to have made a case for the Respondent which it did not make himself.”

The dictum of Karibi-Whyte, JSC at page 283 of the case cited supra to the effect thus – “It is an elementary but fundamental principle of our administration of justice that the court cannot decide a matter on a point of law or fact not relied upon by a party. In other words court should not make a case for a party which the party did not himself make”

See Batalha v. West African Construction Company Ltd. (2002) FWLR (Pt. 109) 1612 at 1626, paragraphs B-E. Jiwul v. Dimlong (2002) FWLR (Pt. 114) 481 at 501, paras B-G.

Order 15 Rules 7(1) and 7(2) of the Benue State High Court (Civil Procedure) Rules 2007 requiring that specific invocation of the defence of limitation period must be made was alluded to and firmly submitted that the Limitation Law or facts establishing that fact were not pleaded or raised by the Respondent. That the Respondent as Defendant had pleaded the existence of the contract but had averred performance of same vide paragraphs 8 and 9 of the defence.

That the Respondent had pleaded in parag. 11(i) of the defence that shortly after the last cement order was made and paid for in 2002, the production of cement at the factory ceased and throughout that period up to early 2005 “there was no production of cement.”

Learned counsel referred to paragraph 11(ii) of the defence wherein N425,000 was admitted as standing to the credit of the Appellant as at the time of the non-production of cement at the respondent’s factory.

Learned counsel wondered why the trial judge would, in spite of all the admissions, concessions and explanations as to why there was no supply to cover all the monies paid, curiously threw overboard and went in search of a defence in the Limitation Law. It was also submitted that the parties and the Courts are bound by the pleadings and could not go outside the pleadings and evidence led. That the Court could not discountenance the pleadings and the evidence and proceed to give judgment on the sum of N424,000 it had isolated. That the stage it suo motu raised the Limitation Law was also wrong in view of the pleadings and the evidence led.

It was also contended that one other area or way in which the trial judge made a case for the parties was by reading or introducing a time clause into the contract documents Exhibits B1, B3, B5 and B7 which was neither intended, implied nor included by the parties.

Learned counsel referring to Exhibits B1, B2, B5 and B7 argued that they were cement order forms which specified the terms thereof to include:-

1. Number of bags or tonnage of cement to be supplied.

(b) Amount payable or paid for cement, vat and haulage.

(d) Special delivery instruction if any.

That the judge’s reliance on paragraphs 7, 8 and 9 of the Statement of Claim without due regard to the Exhibits was misplaced. That the aforesaid paragraphs of the pleadings relied upon did not in any way provide the support sought from them by the trial judge. So also the exhibits did not provide a Limitation Period for the contract.

It was submitted that the parties not considering time to be the essence of their contract, did not so specify in those exhibits. That even the column for special delivery instruction was left vacant. That the parties were only bound by the terms of their contract. Koiki v. Magnusson (1999) 5 SCNJ 296 at 321 per Onu, JSC referred. In Koiki v. Magnusson, supra it was held thus:-

“The general rule is that where parties have embodied the terms of their agreement in a written document…extrinsic evidence is not admitted to add, vary or subtract from or contradict the terms of the written instrument.”

It is further argued that even if the action was statute barred, the Trial Court ought to have had regard to the admissions and concessions, in pleadings, evidence and address and the failure to plead the Limitation Law of Benue state S. 18 of 2004 and thereby come to the conclusion that it had been waived as in a contract as here a party may waive a limitation period and accept liability or not raise it at all as a defence. That in that case the Court has to look at the pleadings, evidence and address to see whether the waiver is apparent, real or implied.

See Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 at 718 also in (2001) FWLR (Pt. 36) 830 at 849 para. D-E wherein Ayoola, JSC stated thus:-

“Where limitation of action is related to torts and contract, it is accepted in principle that the statute of limitation is a defence which can be waived. To that extent, it cannot strictly be said that an action brought outside the Limitation Period is incompetent for lack of jurisdiction of the Court.”

Learned Counsel, referring to 5 instances of and concessions inclusive of stoppage of production and non supply, urged that Limitation Period, if any, had been waived.

He urged that the Appeal be allowed on the Issues 1 and 2 as argued jointly or together. On its Issue 3, the Appellant argued that the trial court ought to have proceeded to judgment on the merit since it was not a final court. Arewa Paper Construction Ltd v. NDIC (Nig) v. Universal Bank Ltd (2006) 15 NWLR (Pt. 1002) 404 at 443 para. B – D (Supreme Court) referred.

Mini lodge Ltd & Anor v. Nigei & Anor (2009) 7 NWLR (Pt. 1173) 254 at 272 C – H and Order 4 Rule 3 Court of appeal Rules 2011 and Section 15, Court of Appeal Act 2004 as amended.

It was in another breadth, submitted that the trial Judge ought to have evaluated the entire case and not hand pick evidence from address of the parties and close its eyes to the pleadings of the parties and evidence from whence the address emanate. On Issue No. 4, it was submitted that the trial judge was wrong in holding that there was a Limitation Law impact on this contract as at 2002 or any time before 9th September 2008.

As relating to the reply Brief of Argument by the Appellant, it was submitted that Order 15 Rule 7(2) of the Benue State High Court (Civil Procedure) Rule 2007 (applicable then) provides to the effect thus:-

“where a party raises any Ground which makes a transaction void or voidable or such matters as fraud, Limitation Law, release payment, performance, facts, showing insufficiency in contract or illegality either by any enactment or by Common Law, he shall specifically plead same.”

That aside pleading performance, the Respondent did nothing more and it was not for the Court to have mourned more than the bereaved by not being neutral in spite of all the admissions and concessions made by the Respondent.

It was also submitted by the Appellant in reply that the raising of a defence of Limitation Period on the pleadings was the only basis for a Court to confine itself to the pleadings in arriving at a decision; that is to say, if the pleadings so aver, or a Motion to that effect so canvassed; that there was no such obligation where hearing had been concluded and addresses concluded and only judgment was reserved. That in that instance, the entirety of the pleadings, evidence led and address would have to be the basis for judgment on the merit. That even if the Defendant/Respondent could rely on a Limitation Period which it did not raise, an admission or assertion or allusion to Limitation Period by the Plaintiff will not avail the defendant as it will be impossible for the Court to compute the period and indeed it will be wrong to merely compute it from the date pleaded. Odubeko v. Fowler & 1 Or (1993) 7 NWLR (Pt. 308) 637 at 660 per Sylvester Onu, JSC Amadi v. Amadi (2011) 15 NWLR (Pt. 272) 437.

On what the contract document was, the Appellant submitted in reply that the distributorship agreement was not, as the document thereof was not admitted in evidence, having been tendered but rejected. He contended in insistence that the contract document were exhibits B1, to B7 as submitted by him in the main Brief of Argument.

That there may be a waiver of Limitation Law statutorily enshrined if it is for the benefit of an individual in his private capacity and not interfering with public right or public policy. See Ariori v. Elemo (1983) 1 SCNR 1; Amaechi v. INEC (2008) All FWLR (Pt. 407) 1 at 2001 202 para. G – B

That the Defendant/Respondent who was represented by counsel at the trial Court knew of the Limitation Law and all its benefits but chose to plead performance and to make admission and concessions in the Statement of Defence and address and was so bound in this act of waiver of the defence so raised for him by the Court.

That the additional Grounds of Appeal pose the Issue of waiver and not really complaint as to the non evaluation of evidence as suggested by the Respondent.

On his part the Respondent formulated a lone Issue for determination as per the Brief of Argument undated but filed on 6th March, 2013 by his learned counsel, and which Brief was adopted in address in this appeal.

The Issue, solo as formulated is thus:-

“Whether the trial judge was wrong to have raised the Issue of Limitation Law of Benue State 1988 and if it was also wrong on the conclusion that the cause of action of the Appellant was statute barred by the provisions of that law.”

Arguing this Issue, it was conceded that it was not pleaded, but that the Trial court invited counsel to address it on the Issue of Limitation Law and Period and found by the Court to be discernable from the pleadings and evidence led. That a Court has a duty to apply all applicable laws to a case.

That S. 122(2) (a) of the Evidence Act (the Section 74 of the Act) Cap 112 of 2011 requires that the Court takes Judicial Notice of all Laws, Acts enactments and all subsidiary legislations made under them and having the force of law in any part of Nigeria and facts which are Judicially Noticed need no proof.

That the Benue State Limitation Law, 1988 needed not to be pleaded before the Trial Court could apply it to deserving cases. Ahmadu Bello University v. Dr. Nwakego Molukw, (2004) All FWLR (Pt. 238) 664 at 677 – 678 para. H – A wherein appears thus:-

“It is quite unnecessary for parties to join Issues on a point of law or statutory provisions once a statutory provision is found applicable, it would be applied by the court not withstanding that parties have not joined Issue on the point in their pleadings statute has the force of law which compels enforcement within the realm and the court will not make a decision which is contrary to law.”

Guinness Nig. Ltd v. Agoma (1992) 7 NWLR (Pt. 256) 596. The Estate of Abacha v. S. Eke – Spiff (2003) FWLR (Pt. 144) 53 Gabriel v. Ilori, (2003) FWLR (Pt. 77) 901 – that the trial judge was right in raising the Issue and applying it after receiving addresses therefrom counsel.

It was also contended that the courts only look at the Statement of Claim to determine whether an action was statute barred. Adeyemi & Ors v. Emmanuel Opeyori (1976) 9-10 SC 31 at 51 referred.

That the Plaintiff/Appellant’s action was statute barred as the Statement of Claim showed that the suit was for the enforcement of a contract made in 2001 and 2002 whereas the suit was filed on 6th October, 2008, a period more than 5 years as provided by the Benue State Limitation of Action Law of 1988.

That the Trial Court had a duty to take Judicial Notice of that Law; that the course of action accrued 6 months at most from the date of payment for the cement ordered and unpaid.
That the suit being statute barred had robbed the Court of jurisdiction and the hearing of the suit on its merit was no longer necessary.

That the appeal should be dismissed and the decision of the Trial Court affirmed as the trial judge had no obligation to proceed in the evaluation of evidence before the court any longer.

I have considered carefully the submission made by the respective parties on their Issues as formulated and adopt the Appellant’s Issue No.4 and the respondent’s sole Issue for the determination of this appeal as they are germane to the Grounds of Appeal filed in this matter.

I shall start with the Respondent’s sole Issue as my Issue No. 1. While, it is correct that a Court of law shall take judicial Notice of all laws, legislations and subsidiary legislations made thereunder and having the force of law as submitted by the Respondent’s learned counsel and undenied by any reply Brief of the Appellant, this Court had also so held per Danjuma, J.C.A. See Pastor Karimu & Ors v. Governor of Lagos State (2012) NWLR (part 1294) page 620. However, in the case of Limitation Period, it must be specifically raised or pleaded and relied upon before a party may rely on same and be given the benefit thereof.
In Gbadeham v. Kiladejo (2012) 16 NWLR (Pt. 1326) 392 at 421, this Court per Kekere-Ekun, JCA (now JSC) stated thus; at page 49 para. B of the report:

“It is correct as submitted by learned counsel for the Appellant relying on the case of Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212 at 29 C – D and Woherem v. Emereuwa (2004) 13 NWLR (Pt. 890) 238, that the onus of pleading and proving that an action is statute barred lies on the Defendant. However, having so pleaded, in order to determine the Issue it is the writ of Summons and the statement of claim that will be considered by the Court.”

In other words; the court will consider the facts as pleaded by the Plaintiff as to when the acts constituting the wrong complained of took place. These facts will then be considered against the date the action was filed to determine whether it was filed within the statutory time limit or not.

From this clear position of the law anchoring as its support the decisions of the Supreme Court by which this court is bound, it is my resolution of Issue No. 1 which is the Respondent’s lone Issue that while the Court shall take Judicial Notice of all laws, the Defendant has the obligation of first raising such an objection or reliance on a statute of Limitation before a Court may so apply it in appropriate cases.

It is not to be raised and applied suo motu; even upon a call for an address thereon as it is not based on the specific allegation or invocation of such a statute. The Appellant’s counsel is right and Respondent wrong. This Issue is resolved against the respondent and in favour of the Appellant. Even for argument sake, defence is held waived. Issue 4 of the Appellant: The learned trial judge reasoned that the cause of action arose from the dates when the supplies ought to have been made as pleaded in the Statements of Defence and the exhibits indicating the orders made for cement which was in dispute. The Appellant contends that the cause of action was determinable from the Statement of Claim and to the effect that it was when the Respondent refused to supply the cement ordered as averred, even after all negotiations and admission and concessions had been made as to the contract and existence of some liability.

The cause of action therefore, in the suit leading to this appeal arose when the Respondent refused to pay the Plaintiff his entitlement as claimed, the date thereof being 9th September, 2008 as pleaded in paragraph 12 of the Statement of Claim. The respondent denies the said date as being the relevant date to consider and alluded to dates or period it inferred from exhibit tendered when the pleadings in respect thereof only mentions them as indicating periods of usual supplies after orders are placed and paid for. For the avoidance of doubt, the said paragraph 12 provides thus, (as contained at pages 4 – 6) of the Record of Appeal.

“The Plaintiff made repeated calls and visits to have the matter resolved without success culminating in the visit of one of the directors on the 9th day of September, 2008, when the management of the Defendant finally told the Plaintiff that the Defendant was going to do nothing about its claims as it was not among the verified claims”

An examination of the aforesaid paragraph of the Statement of Claim was the only referral point for a determination of when the cause of action arose; as it was the facts so stated as existed then that could ground any action for a suit. The Limitation Period, therefore, if relied upon could only have been with effect from the said 9th day of September, 2008.

It is only then that an action brought beyond that date could be said to be statute barred. In the instant case, it was not. See Aremo II v. Adekanye (2004) 13 NWLR (Pt. 890) 572 at 592 – 593 H-A; Woherem v. Emereuwa (2004) 12 NWLR (Pt. 890) 398; Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping & Transport Agencies Ltd (1997) 1 NWLR (Pt. 212).

It was therefore, a clear case of misdirection when the learned trial judge held that the cause of action arose in respect of the various orders placed for the supply of cement in 2002 i.e. 3 or 6 months at most from the dates of the contract of order of those years. Issue No. 4 is resolved in favour of the Appellant and against the Respondent.

A resolution of the Appellant’s Issue No. 4 and the Respondent lone Issue (all) in favour of the Appellant herein, in my view sufficiently disposes of this appeal in favour of the Appellant and the consequential decision of this court must be one allowing the appeal and setting aside the entire decision of the Trial Court. The further order of the Trial Court giving judgment for the admitted sums of money said to be outstanding in favour of the appellant for unsupplied cement may be an honest exercise in recognizing an acknowledged entitlement, but was granted wrongly as it could not be done in view of the conclusion by the Trial Court that the suit was statute barred.

A Court of law has no jurisdiction to proceed to grant any relief or remedy when a suit is found to be statute barred; even if it was wrong in so holding, it had no jurisdiction any longer to proceed in the matter by giving a remedy in any part or form in that suit. Issue No. 3 is also in favour of the Appellant. A claimant who might have had a cause of action loses the right to institute an action and indeed any remedy in whatever form, be it in part as done in the judgment on appeal.

The Trial Court had no jurisdiction to delve piece meal into the matter any longer. It could only have given a decision on the merit since evidence had been led or struck out the suit if it so believed that the action was statute barred. For doing none, but proceeding in admixture or hybrid posture, I hold that the decision arrived at cannot stand in law. That is pre-varification! Blowing hot and cold?

I shall not conclude without pointing out that it is unethical to misquote any averment or document for any purpose whatsoever in a Court of law. Just as the Courts are Holy, so must be the practitioners, therein. See my contributory judgment in Fortune International Bank Plc v. City Express Bank Ltd (2012) 14 NWLR (Pt. 1319), page 86 at 118 – 120, paragraph F, wherein I said:

“As the Courts are Holy so also the players therein should be. The Record of Appeal is the Bible of the case….”

In his judgment, the learned trial judge stated at page 2 as contained at page 90 of the Record thus:

“I do not see the need to split hairs on when the cause of action in this suit arose. Paragraph 12 of the Statement of Claim, which avers that it was only in September 2005 that the management of the defendant finally told the Plaintiff that it was not going to do anything about its claims cannot be read in isolation of the proceeding paragraphs of the same Statement of Claim wherein the Plaintiff asserts in effect that supplies were usually made within six weeks to three months of any particular order and that she made her final order in 2002. See paragraphs 7, 8 and 9 of the Statement of Claim.”

The reference to the period of 9th December 2005 or September 2005 was clearly not borne out of that Statement of Claim relied upon, as earlier reproduced by me and as contained in the Record of Appeal. The decision of the Trial Court founded on a misquoted date on the pleadings, no doubt infested the fountain of Justice of its otherwise undiluted stream of pure flow of the water of justice. The sermonizing and piece meal consideration of all other issues canvassed in argument, amount in law, in the circumstance, to a mere rhetorical waste of judicial time, academic expositions and Apparent unfair attack, unmerited and uncalled for against the learned counsel for the Appellant, S. A. Ngavan, Esq. Is the suit “dead classic” occasioned by a Limitation Period commencing from 9th September, 2008 as pleaded or 2002 pleaded date of orders wherein is averred the usual period of supply after a demand is made and which period had apparently been waived by continuous negotiations and complaints until the definitive refusal to supply or to make good the claim averred? If the suit was “dead classic” by a Limitation Period of both in respect of the claims for specific performance and damages for breach of contract arising therefrom, why did this trial judge then proceed to make an order for the award of a moiety or part of a remedy or relief in special damages?

Baking the issue and striving in the hunt to calm injury to conscience, would appear to have been what took place at the trial judgment seat, in this matter. Conscience is an open wound; only truth can heal it.

I see therein the Guardian Newspaper motto – a Nigerian Publication Quoting Othman Dan Fodio, an Islamic cleric/scion of the Othman Religio/Politico Oligarchy of the 18th-19th century in the West Africa Sahelian Region.

Referring to the sum awarded as being a refund in equity for money had and received, as done in the judgment, is with respect a mere gymnastic in avoiding the phrase special damages as Appellant had claimed a refund in special damages; and having held that a claim in special damages was statute barred did not validate the summersault in giving part of the same relief in style.

Litigation is a sacrosanct endeavour. There must be honesty on the part of all practitioners in the temple of justice. These include also the judges of the trial and appellate Courts. See my contributory decision in Fortune International Bank Plc v. City Express Bank Ltd (2012) part 1329 14 NWLR, page 86. I had stated in that judgment (contribution) thus:

“Litigation is a sacrosanct pursuit and must be done or pursued with honesty and integrity in the temple of justice. As the court must be Holy so also the players therein should be…The approbation and reprobation earlier on alluded to in this judgment as relating to the main appeal has also reared its ugly head….”

The manner of trial and decision in the matter leading to the instant appeal makes the aforesaid view of mine in the Fortune Bank Plc case more germane and alive. From the view taken above, it is clear to me that the composite Issues No. 1 and 2 and also Issues 3 and 4 must be answered in favour of the Appellant. They are so resolved, accordingly in his favour.

In all circumstances, this appeal has merit and must be allowed. I allow same. In consequence, I set aside the entirety of the decision of the Trial Court delivered in suit No. MHC/248/2009 on 9/6/2009 in Mandate International Ltd and Benue Cement Co. Plc now Dangote Cement Plc and in its place I grant the Appellant’s prayer for an order remitting the suit to the Hon. Chief Judge of Benue State for a re-assignment and hearing de novo. The hearing shall be conducted by a judge other than A. Onum, J. the then trial judge in the suit.

Parties are to bear their respective costs of this appeal.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.

OBANDE FESTUS OGBUINYA, J.C.A.: I agree.

Appearances

S. A. Ngavan, Esq.For Appellant

AND

P. A. Mbahon, Esq.For Respondent