MYEKO NIGERIA LIMITED & ORS v. ASSET MANAGEMENT CORPORATION OF NIGERIA (2019)

MYEKO NIGERIA LIMITED & ORS v. ASSET MANAGEMENT CORPORATION OF NIGERIA

(2019)LCN/13333(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of May, 2019

CA/L/171/2018

RATIO

SECTION 35(5) OF THE ASSET MANAGEMENT COPORATION OF NIGERIA ACT, 2015:MEANING

For the avoidance of doubt, these provisions relate to the mode of accrual of cause of action with respect to eligible bank asset(s) acquired by the Asset Management Corporation of Nigeria.
For the purpose of the provision of the Limitation Law of a State or the Limitation Act of the Federal Capital Territory, with respect to any debt owed to the Corporation by reason of its acquisition of an eligible bank asset, time shall begin to run, and the cause of action deemed to arise from the date of the purchase of the eligible bank asset.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

SECTION 38 OF THE LIMITATION LAW OF LAGOS
On the other hand, Section 38 of the Limitation Law of Lagos State provides that:
“(1) Where
(a)any right of action has accrued to recover any debt; and
(b)the person liable therefore has acknowledge the debt; the right of action shall be deemed to have accrued on and not before the date of the acknowledgment.
Indeed, the primary duty of this Court in the construction of statute, particularly where the words contained therein are clear and unambiguous, is to construe same in their ordinary and literal meaning. As a matter of fact, it is certainly not the duty of the Court to construe the wordings of a statute in such a manner as to avoid its consequence; that I dare say, is within the boundary of the legislature. See AMAECHI v INEC [2008] 5 NWLR (PT 1080) 227 SC; KRAUS THOMPSON ORG. v NIPSS [2004] 17 NWLR (PT 901) 44; AROMOLARAN v AGORO (2014) LPELR 24037 SC.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

LIMITATION OF ACTION DOES NOT EXTINGUISH THE RIGHT TO DEBT
It is now settled law that, unlike other causes of action, limitation of action does not extinguish the right to the debt but it merely bars the right to recover the debt because of lapse of specified period in the law of Limitation from the accrual of cause of action. See NIGERIA SOCIAL INSURANCE TRUST v KLIFCO NIGERIA LIMITED (2010) LPELR 2006(SC); [2010] 13 NWLR (PT 1211) 307 SC where the Supreme Court held as follows:
… Meaning that there must have been an initial indebtedness which according to the Limitation law is statute barred arising after a lapse of a period of years from the accrual of cause of action in the case. The limitation law here is a period of 6 years being a simple debt. However, where there is acknowledgment of the debt, the right to recover by an action is revived and it is the crux of the matter in this case.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

ACKNOWLEDGEMENT: WHAT CONSITUTES ACKNOWLEDGEMENT
It must be noted that what constitutes acknowledgment is a matter of fact depending on each case. See THADANI AND ANOR V. NATIONAL BANK OF NIGERIA (1967 – 1975) 2 NBLL. 383 per COKER, JSC.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

ACKNOWLEDGMENT: WHAT CONSTITUTES IT

In other words, what constitutes acknowledgment will depend on the construction placed on the words by the Court in ascertaining what the words mean. See SPENCER v HEMMERDE (1922) A. C519 at 5264 (Supra). As rightly held in the Spencer case (Supra) at P. 526 the question is what the debtors words mean; and not what he meant when he wrote them. Thus, making the debtors motive for the acknowledgement most irrelevant in the matter.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
LIMITATION PERIOD WITHIN WHICH TO BRING A MATTER OF SIMPLE DEBT
I must recapitulate that this being a simple debt the period of limitation is 6 years. What seems to emerge from the opposing contentions of the parties here is whether by the above underlined phrase i.e. the acknowledgment as in the extract of Exhibit “J” it is a sufficient and clear acknowledgment of the Defendant’s Indebtedness that a promise to pay is inferable from it and so take this matter outside the operation of the limitation law; see AJIKE V CARDOSO (1939) WACA 134.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

IT IS NOT NECESSARY TO SET OUT THE PRECISE AMOUNT OF DEBT

In AJIKE v CARDOSO AND ANOR (Supra) this point has been highlighted and if I may restate, it has held that it is not necessary to set out the precise amount of the debt. See also THADANI AND ANOR V NATIONAL BANK OF NIGERIA (Supra).PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

ACKNOWLEDGMENT: CONDITIONS FOR A VALID ACKNOWLEDGMENT OF DEBT
A community reading of Sections 38 and 45 of the Limitation Law of Lagos State for the conditions for acknowledgement, to wit, that every acknowledgment must be in writing and signed by the person making the acknowledgement. See FIRST BANK OF NIGERIA PLC v STANDARD POLYPLASTIC INDUSTRIES LIMITED (2018) LPELR 44081 (CA).PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

LETTER: WHAT DOES IT MEAN WHEN A LETTER CONTAINS THE PHRASE “WITHOUT PREJUDICE”
I am however persuaded by the reasoning and conclusion of this Court in a recent judgment inPACERS MULTI-DYNAMICS LIMITED & ANOR v ECOBANK (2018) LPELR 45008 (CA), where my learned brother, IKYEGH, J.C.A. aptly held:
A letter written with the expression ‘without prejudice’ is restricted only to cases where there is unresolved dispute or negotiation is still in progress and is yet to crystallize into an agreement between the parties to the dispute in which case the letter or correspondence is inadmissible in evidence on the footing that confdential overtures so made should be excluded from evidence on the ground of public policy.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

DEBT: ONCE A DEBT IS ADMITTED, THE MODE OR TIME OF REPAYMENT IS A DIFFERENT ISSUE
The subsequent letters in question being on the modalities for repayment of the agreed indebtedness cannot be said to be continuation of negotiation of the quantum of indebtedness because once a debt is admitted, the mode or time for repayment is a different matter vide Kenfrank Nigeria Limited and Ors. v. Union Bank of Nigeria Plc (2002) 8 NWLR (pt.789) 46 at 73 per the lead judgment prepared by Ikongbeh, J.C.A., (now of blessed memory)PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

TOBI EBIOWEI Justice of The Court of Appeal of Nigeria

Between

1. MYEKO NIGERIA LTD
2. MR. KELECHI DOZIE
3. MR. JUNIOR ADEWUNMI Appellant(s)

AND

ASSET MANAGEMENT CORPORATION OF NIGERIA Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal flowing from the decision of the Federal High Court, Lagos division per I. N. BUBA, J delivered on 20/11/2017.

The Appellants dissatisfied with the decision of the lower Court Appellant filed a notice of appeal on 12/07/17. The Appellants filed a notice of Preliminary Objection against the action of the Respondent in the lower Court challenging the jurisdiction of the lower Court to entertain the suit on the grounds that the action was statute barred and the Respondent lacked locus standi to institute the action.

Appellants referred to Section 35(5) of the AMCON ACT that the cause of action is the date of purchase of eligible asset and that this asset was purchased in 2010 while the suit for recovery commenced in 2017.

The Respondent contended that the Appellants had replied a letter of 7th May 2012 acknowledging the debt and thus revived the cause of action, the lower Court dismissed the preliminary objection and held that it had jurisdiction. Hence, he filed a notice of appeal against the ruling.

Sequel to the Court rules, parties filed their briefs of argument. The Appellants brief was settled by Wale Irokosu, Taofikat Odunnuga, Ifeanyi Nwoye of PROBITAS PARTNERS wherein he formulated:
a. Whether the lower Court was right when it held that it has jurisdiction to entertain and adjudicate upon the suit in view of the fact that the Respondents action was statute barred by virtue of the provision of Section 35(5) of Asset Management Corporation of Nigeria (AMCON) ACT 2015 (AS AMENDED) and Section 8(1) (e) of Limitation law of Lagos State.
b. Whether the lower Court was right when it relied on the case of N.S.I.T.F.M V KLIFCO NIGERIA LIMITED (2010)13 NWLR (PT 1211) 370 to Hold that cause of action in the instant case accrued upon the purported acknowledgement of debt, when the case is essentially and radically different from the instant case.
c. whether the lower Court was right when it failed to make any pronouncements on the issue of locus standi and failure to make any pronouncements on the issue of locus standi and failure of the respondent to fufill the condition precedents before commencing the action at the lower Court, argue by the Appellants in their

preliminary objection and whether this honourable Court can stand in the stead of lower Court and determine the questions pursuant to Section 15 Court of Appeal Act cap C36 Laws of the Federation of Nigeria 2004.

The Respondent adopted the above three issues of the Appellants and the brief was settled by Ayo Osifeso, Esq; Dotun Adeleke, Esq; Oluwatosin Coker, Esq of AMODS SOLICITORS.

SUBMISSION OF COUNSEL
ISSUE 1
The Appellants submitted that the lower Court erred when it assumed jurisdiction to entertain and adjudicate upon the suit which was statute barred by virtues of Section 35(5) of AMCON ACT and Section 8(1)(e) of the Limitation law of Lagos State. He submitted that the statement of claim governs the jurisdiction of the Court, he referred to TUKUR v GOVT GONGOLA (1989) 4 NWLR (PT. 117) at 549 PARA B; MAFIMISEBI & ANOR v EHUWA & ORS (2007) LPELR -1812 (SC).
?
The Appellants submitted that Respondent has stated in its claim that it acquired the debt from Afri-bank in 2010 and relied on the Loan Purchase and Limited Servicing Agreement between the Respondent and Afri-bank Nigeria Plc dated December 2010.

He stated that the writ was filed on 18th August, 2017 over 6yrs and thus the Court lacked jurisdiction having been clearly defined by Section 35(5) of AMCON 2010, that the lower Court wrongly applied Section 38 of the Lagos State Limitation Law. The Appellants further contended that the AMCON Act supersedes the Lagos Law being a Federal Act and tailored specifically to the event of when a cause of action arises hence is in applicable.

He relied on A. G. FEDERATION v A. G. OF LAGOS STATE (2013) LPLER – 20974 (SC), JAMES G. ORUBU v NATIONAL ELECTORAL COMMISSION & ORS (1988) 5 NWLR (PT 94) at PG 350 PARAS C-D; NOBIS ELENDU v INEC (2015) 16 NWLR (PT 1485) at PG 224 PARAS A-C; ITV v EDO STATE BOARD OF INTERNAL REVENUE (2014) ALL FWLR (PT 759) 1144 at 1168 INTEGRATED DATA SERVICE LTD v MR OLAJIDE O ADEWUMI (2014) ALL FWLR ( PT 761 ) 1615 at 1625; BM LTD V WOERMANN-LINE (2009) NWLR (PT 1157) PG 189.

The Appellants further submitted that the provision be given its literal and ordinary meaning.

He further referred to ATTORNEY GENERAL OF THE FEDERATION v ATTORNEY GENERAL OF ABIA STATE v ORS (2002) 6 NWLR (PT 764) at PG 794 PARAS B – C.

Appellants submitted that assuming without conceding that the lower Court erred in holding that the letter of 7th May, 2012 constituted an acknowledgement and revived the cause of action, that its correspondence made in course of negotiation and are without prejudice thus he contended that Courts are stopped from relying on the document, he cited the cases of GEORGE C. ASHIBUOGWU v THE A. G. BENDEL STATE & ANOR (1988) LPELR – SC 25/86; FAWEHINMI v NIGERIAN BAR ASSOCIATION (NO. 2) (1989) 2 NWLR (PT. 105) 158 at 622 AND 623; UBN PLC v OKORO (2002) FWLR (PT 122) 24 CA.
Appellants contend that from the said letter negotiations were on going and urged that this issue be resolved in its favour.

On issue 2, he submitted that the lower Court erred in law when it relied on the case of N.S.I.T.F.M v KLIFCO NIGERIA LIMITED (2010) 13 NWLR (PT 1211) 370, to hold that the cause of action was upon an accrued acknowledgement of debt, and that this case is materially and radically different from the suit. He distinguished the facts of the case and that Section 35(5) of AMCON ACT will apply exclusively for all other modes of the accrual of cause of action in

Lagos State, he relied onU.B.R.B.D.A v ALKA (1988) 2 NWLR (PT 537) at PAGE 338.

Appellants submitted on issue 3 that, the lower Court erred when it failed to make pronouncement on the issue of locus standi raised by the Appellants in their preliminary objection. He referred toEGOLUM v OBASANJO (1999) 7 NWLR (PT 611) 355 at 410 PARAS C – G per ACHIKE, JSC; AKINTUNDE v OJO (2002) 4 NWLR (PT 757) PG 284 at 304 PARAS A-C.

He contended that by Section 25 of AMCON ACT, the Respondent is legally obligated to show that the eligible bank assets was purchased within the stipulated 3(three) months of designation of any assets and the Respondent must show any extension granted by CBN and having failed the Respondent lacks locus standi and the Court lacks jurisdiction .

Appellants contended that the Respondent failed to show that a demand was made by the 2nd & 3rd appellants in their personal capacity before the suit was commenced in their personal capacity and a demand is a condition precedent to an action for recovery of debt referred to WEMA BANK v OWOSHO (2018) LPELR – 43857(CA); CHIEF OLAYEMI ABOLARIN & ORS v DR JOHNSON ADEWUMI & ORS (2016)

LPELR – 41233 (CA).

The Appellants submitted that the lower Court erred when it failed to consider the issue of locus standi and occasioned a miscarriage of justice.

Finally, he urged the Court to invoke Section 15 of the Court of Appeal Act and determine the questions of locus standi, he relied on ODEH v FRN (2008) 13 NWLR (PT 1103) at PAGE 24 PARAS C-D; JULIUS BERGER (NIG) PLC v NWAGWU (2006) 12 NWLR (PT. 995) AT PG 539 PARAS B-D.

RESPONDENTS ARGUMENTS
The Respondent in its brief raised a preliminary objection on point of law seeking to quash ground 3 of the notice of appeal dated 21/11/17 and any issues and arguments emanating.

The Respondent agreed with the Appellants that the statement of claim selects the jurisdiction of the Court and adopts all the cited authorities in aid of it. The Respondent disagreed that Sections 35(5) of AMCON Act, 2015 conflicts with the Lagos State law, he contends that having admitted the debt in their statement of defence at pages 390-397 of the record, the Appellants now usurps the jurisdiction of the Court via preliminary objection.

The Respondent adopted the issues raised by the

Appellant.

ISSUE 1
The Respondent submits that the Appellants made heavy weather about the doctrine of covering the field being applicable to the issues on ground and that it has nothing to do with the facts of this case. Respondent submitted that the facts are; the Appellants have admitted the debts in their defence, and the lower Court relied on the amended Section 35(5) of AMCON ACT as to when cause of action arose and that it deals with when a cause of action is deemed to have arisen, that the section is limited to the interpretation of when it arises and there is no further thing and upon joining issues, the Appellants presented documents evidencing the acknowledgement of the loan bearing the Appellants and firm name of counsel before the Court, that the scenario was on all fours in line with Section 38 of the Limitation Law Lagos State in NSITFM v KLIFCO NIG LTD (Supra), which interpreted the nature of acknowledgement of such debt as is in this circumstance that the trial judge agreed with both the contents of Section 38 Limitation Law of Lagos State together with the said case, that there is no conflict between Section 35(5) of AMCON Act and

the Limitation Law of Lagos State. Respondent invited the Court to hold that a legislation created for subsidiary issue cannot be in conflict with a main principal law created for a specific issue and it cannot be inconsistent, rather it must supersede or override the non-principal legislation. He submitted that the issue of suspending a cause of action or renewing a cause is separate and distinct. He urged the Court to dismiss the appeal.

On issue 2, the Respondent submitted that the crux of the decision in NSITM v KLIFCO NIG LTD (Supra) is that where there is an acknowledgment of a debt, the right to recover by action is revived, that the issue is beyond the date of the cause of action. He distinguished the issues in the said case that it did not deal mainly in the National Provident fund, that the cases cited in aid were in applicable.

Finally, in response to the Appellants argument on the issue of locus standi was not addressed by the lower Court, submitted that the preliminary issue is based on this ground as incompetent, as no leave was sought by the Appellant.

He submitted that the pronouncement was solely the Courts duty and relied

on the cases of; PETROJESSICA ENTERPRISES LTD v LEVENTIST TECHNICAL COAL LTD (1992) NWLR (PT 244) PG 675; NDIC v CENTRAL BANK (2002) FWLR (PT 99) PG 1021.

Respondent submitted that the Court is to examine the claim and that the relief before the Court was not whether the plaintiff had locus standi. He referred to paragraphs 6.5 – 6.8 of the brief, the Appellants with malicious afterthought alleged that the Respondent have not shown the requisite locus standi to institute the action in line with AMCON, that page 6 of the record and paragraph 11 of the plaintiffs statement of claim and paragraph 13 of the deposition and that the loan purchase and limited servicing agreement was front loaded at page 45 of the record, and that in the face of all the above the Appellant still disregards.

The Respondent posits that the three issues to be settled are;
The question of whether the Respondent issued demands notices is premature and whether there was sufficient evidence of such demand on the face of the pleading and even if the Respondent failed to make a demand on the 2nd and 3rd Appellants in line with the personal guarantees issued by 2nd and 3rd

Appellants in favour of the eligible financial institutions. The Respondent in arguing these three questions together, he submitted that notwithstanding the personal guarantees issued by 2nd and 3rd Appellants, and that by virtue of Section 43(1) (a) of AMCON Act, 2010, the Respondent made several demands to the Appellants herein who failed, refused and neglected to liquidate the said debt.

Respondent referred to paragraph13 & 14 of the statement of claim, that the submission of Appellants will amount to the fact that their allegation or claim is premature, that the mere fact of acquisition of the debt is sufficient locus and the Respondent is not under any obligation in Section 43(1)(a)of AMCON ACT.

REPLY OF APPELLANT
In response to the preliminary objection, the Appellants referred to the following cases; ORJI v PDP (2009) 14 NWLR (PT. 1161) PG 310 at 408; KARIBO v GREND (1992) 3 NWLR (PT. 230) 426; OBIONWU & ORS v INEC (2013) LPELR – 22573(CA); BAYOL v AHEMBA (1999) 7 SC (PT1) 92 to the effect that the Court failed to make pronouncement on the issue is crucial to the Appellants case and led to miscarriage of justice.

He contended that ground 4 is the main crux of the appeal, on failure to issue demand letter he cited ADAMU SHEHU SULEIMAN v SALISU ZAKARI & ORS (2009) LPLER ? 4984(CA) and that failure to do this affects the jurisdiction of the Court, he cited WEMA BANK PLC v OWOSHO (2018) LPELR ? 43857 that the non fulfilment of a condition precedent was an issue of law alone and not mixed facts and law, he referred toEHINLANWO v OKE (2008) LPELR ? 1054 (SC); NZIDEE & ORS v KOOTU & ORS (2006) LPELR – 5519 (CA); ALHAJI IBRAHIM SHUIAB KASANDU & ANOR v ULTIMATE PET LTD & ANOR (2007) LPELR – 8228(CA); ICLZIE JEROME ANOGHALU V NATHAN ORAELOSI (1999) 10 SCNJI (1999) 13 NWLR ( PT 634) 297.

ISSUE 1 & 11
Appellant submitted that by Section 35 (5) of AMCON Act, the action is statute barred, he referred to the KOTOYE v SARAKI (1994) LPELR ? 1708 (SC); INTEGRATED DATA SERVICES LTD v MR OLAJIDE O. ADEWUMI (2014) ALL FWLR (PT 761) 1615 at 1625 that the AMCON Act leaves no room for the application of any other law. Therefore, he submitted that the Respondent?s submission is misconceived.

On issue II he submitted that the

case of NSITFM v KLIFCO (Supra) is inapplicable to the AMCON Act that the case dealt with the NSITF Act which does not contain a provision similar to Section 35(5) of the Act and Section 38 of Limitation Law Lagos State does not apply in the face of Section 35 of AMCON Act.

The Appellant on issue 3 reiterated the questions of locus standi and the case of AGBOOLA v AGBODEMU & ORS (2008) LPELR 8461 and submitted that the issue of demand notice can be raised at any time and he contends that there was no evidence of service of a demand notice. He referred to MADUKOLU v NKEMDILIM; WEMA BANK v OWOSHO (Supra); NTO & ANOR v GLOBAL SOAP & DETERGENT IND. LTD (2012) LPELR – 7997 (CA); to the effect that issue of jurisdiction can be raised at any time. He referred further on KOLO v FBN PLC (2002) LPELR ? 7106 (CA); FIRST BANK v FCMB (2016) LPELR 42217 (CA).

At this junction, he urged the Court to Section 16 of the Court Appeal Act he referred to EZEIGWE v NWAWULU (2010) 4 NWLR (PT 1183) 159, OBI v INEC (2007) 11 NWLR (PT 1046) 565; AMAECHI v INEC (2008) 5 NWLR (PT. 1080) 227.

The Appellant contends that this is an apt case

to apply Section 16 of the Court Of Appeal Act on the circumstances of the case. He urged that the judgement be set aside and the preliminary objection be upheld.

PRELIMINARY OBJECTION
The preliminary issue raised by the Respondent to quash ground 3 now ground 4 of the Amended notice of Appeal and any issue and arguments emanating there from.

The Respondent contended that the ground queries that the lower Court failed to inquire whether a letter of demand was made to the 2nd and 3rd Appellants. That this issue involves one of an inquiry of fact and a pronouncement of law thus making it an issue of fact or at best an issue of mixed law and fact. Which requires leave of Court, he referred to Section 318 of the Constitution of the Federal Republic of Nigeria; EKWUNIFE v NGENE (2000) 2 NWLR (PT 646) PG 650; RE SHYLLON (1994) 6 NWLR (PT 353) at 753; NWADIKE v IBEKWE (1987) 4 NWLR (PT 67) PG 718 at 733; OPUIYO v OMONIWARI (2007) 16 NWLR (PT 1060) PG 418; DAIRO v UNION BANK OF NIGERIA PLC (2007) 16 NWLR (PT 1059) PG 99; KASHADADI v NOMA (2007) 13 NWLR (PT 1052) PG 510.

Respondent contended that the ground be struck out with issue III in the brief

of argument and that the argument in support having failed to meet the constitutional and statutory requirements which prescribed leave to be obtained for their validity.

In reply, the Appellants submitted that the submissions of the Respondents is mischievous in law, that the issue in ground 4 is based on the failure of the lower Court to make pronouncement in its ruling, particularly relating to the Respondent?s failure to fulfil a condition precedent before commencing the suit against the 2nd and 3rd Appellants at the lower Court is an error of law, that a Court is legally obligated to consider and pronounce on all issues raised before it. He relied on BRAWAL SHIPPING v ONWADIKE(2000) 6 SCNJ 508 at 522; ORJI v PDP (2009)14 NWLR (PT 230) 426 at 441; BAYOL v AHEMBA (1999) 7 SC (PT 1) 92.

That it amounted to a condition precedent not fulfilled by the Respondent in a debt recovery case. He relied on ADAMU SHEHU SULEIMAN v SALISU ZAKARI & ORS (2009) LPELR ? 4984(CA).

The Appellants further submitted that the issue in ground 4 of the Amended Notice of Appeal dealt with recovery of debt and it is trite that a valid demand must be

done to the debtor before a suit is instituted, he referred to WEMA BANK PLC v OWOSHO (2018) LPELR ? 43857(CA); EHINLANWO v OKE (2008) LPELR – 1054 (SC), NZIDEE & ORS v KOOTU & ORS (2006) LPELR – 5519(CA).

The Appellants contended forcefully that leave is not required in this case and further relied on ALHAJI IBRAHIM SHUIBU KASANDUBU & ANOR V ULTIMATE PETROLEUM LTD & ANOR (2007) LPELR – 8228 (CA); ICHIE JEROME ANOGHALU v NATAHN ORAELOSI (1999) 10 SCNJ 1, (1999) 13 NWLR (PT. 634) 297.
He urged the Court to dismiss the preliminary objection.

RESOLUTION
Ground four of the Amended Notice of Appeal state thus;
The learned trial Court erred in law when it failed to make pronouncement on the issue that the condition precedent for commencing the action at the lower Court against the 2nd and 3rd Appellants to wit; issuing a letter of demand to the 2nd and 3rd Appellants in their capacity as directors/guarantors prior to commencing the action them was complied, and assumed jurisdiction over the matter.?

PARTICULARS OF ERROR
(i)A Court can only assume jurisdiction over a matter where any condition

precedent to the exercise of jurisdiction has been fulfilled.
(ii)Pursuant to Section 31(5) (c) and (d) of AMCON practice Direction a demand must have been made, prior to commencing the action.
(iii)The action was commenced against the 2nd and 3rd Appellants Respondents in their capacity as directors /guarantors to the 1st Appellant.
(iv)There was no letter of demand issued to the 2nd and 3rd defendant in capacity as director /guarantors prior to commencing this action.
(v)The lower Court did not make any finding or pronouncement on the issue raised by the 2nd and 3rd Appellants Respondents that the condition precedent to commencing the action against them was not fulfilled.
(vi)The lower Court proceeded to assume that it had jurisdiction to entertain the matter without making a finding or pronouncement on the issue of condition precedent to commencing the action raised by the 2nd and 3rd appellant.?

In OPUIYO v OMONIWARI (2007) 16 NWLR (PT. 1060) PG 418 the Supreme Court set down Guiding principles in determining whether a ground of appeal is that of law, fact(s) or mixed law and facts thus:
“In the determination of the question whether

or not a ground of appeal is of law or fact/mixed law and fact, it is important to consider together the principal complaint and the particulars of error provided there under. When the approach is followed in relation to the first ground of appeal above, there is no doubt that the ground is of mixed law and fact. As a matter of law, a Court has the duty to consider the issues submitted to it for adjudication. Where a Court fails to consider and adjudicate on such issues, it is usually an error of law because the omission constitutes a denial to the party complaining of his right of fair hearing as enshrined in the constitution. However, as the complaint is an invitation to the appellate Court to consider those matters of fact which had not been considered by the court below, it becomes an issue of fact or mixed law and fact before the appellate Court.”
per OGUNTADE, J.S.C. (P. 11, PARAS. C-G).
?
The issue in this appeal as reproduced above together with its particulars, complains of the failure of the lower Court to inquire in what capacity the 2nd & 3rd Appellants were sued (directors/guarantors) and if any demand letter was issued, these are facts

that can be glimpsed through the statement of claim or affidavit/frontloaded documents if any was filed by the Respondent and no other. Furthermore, this action coupled with the provisions of the practise direction would be examined before the application of the law in this direction. It then becomes a question of law; therefore this issue dwells on mixed law and facts and certainly would require leave of Court which is missing here. See UGWU v STATE (2013) LPELR – 20177(SC); OLUWOLE v LSDPC (1993) 5 SC1.
The ground is incompetent and is struck out together with arguments canvassed in issue iii in the Appellants brief.

RESOLUTION
It is evident from the foregoing that there is no dispute on the point that by virtue of Section 8(1)(a) of the Limitation Law of Lagos State, which provides that claims based on simple contract(s) cannot be sued upon after 6 (six) years of the accrual of the cause of action. It will appear that the Appellants? contention in this appeal revolves around the proper construction of the provision of Section 35(5) of the Asset Management Corporation of Nigeria (AMCON) Act, 2015 (as amended) vis a vis the provision of

Section 38 of the Limitation Law of Lagos State. For the avoidance of doubt, these provisions relate to the mode of accrual of cause of action with respect to eligible bank asset(s) acquired by the Asset Management Corporation of Nigeria.
For the purpose of the provision of the Limitation Law of a State or the Limitation Act of the Federal Capital Territory, with respect to any debt owed to the Corporation by reason of its acquisition of an eligible bank asset, time shall begin to run, and the cause of action deemed to arise from the date of the purchase of the eligible bank asset.
On the other hand, Section 38 of the Limitation Law of Lagos State provides that:
“(1) Where
(a)any right of action has accrued to recover any debt; and
(b)the person liable therefore has acknowledge the debt; the right of action shall be deemed to have accrued on and not before the date of the acknowledgment.?
?Indeed, the primary duty of this Court in the construction of statute, particularly where the words contained therein are clear and unambiguous, is to construe same in their ordinary and literal meaning. As a

matter of fact, it is certainly not the duty of the Court to construe the wordings of a statute in such a manner as to avoid its consequence; that I dare say, is within the boundary of the legislature. See AMAECHI v INEC [2008] 5 NWLR (PT 1080) 227 SC; KRAUS THOMPSON ORG. v NIPSS [2004] 17 NWLR (PT 901) 44; AROMOLARAN v AGORO (2014) LPELR ? 24037 SC.
It seems to me from the clear wordings of Section 35(5) of the AMCON Act, that the draftsmen thought is right and for good reason, to explicitly state when the cause of action in relation to the acquisition of eligible bank asset may arise or accrue. As a matter of fact, the section leaves no one in doubt that time shall begin to run and the cause of action deemed to arise, from the date of the purchase of the eligible bank asset.By this statutory intervention encapsulated in Section 8(1)(a) of the Limitation Law and Section 35(5) of the AMCON Act, an action predicated upon the acquisition of eligible bank asset must then be commenced, within 6 (six) years of the acquisition of the eligible bank asset(s) by the Respondent.
But that is not the end of the matter, it is my view,

which I believe to be the correct one that even though the combined effect of provisions of section 8(1)(a)supra has adequately provided for when time shall begin to run and the cause of action deemed to arise, the provision of Section 38 of the Limitation Law clearly permits of certain exception to the general provision of Section 8(1)(a). Contrary to the erroneous contention of the Appellants counsel that the specific provisions of Section 35(5) of the AMCON Act should be strictly and solely applied in the instant case as to determining when the cause of action arose, it is unequivocal from the said provision that the legislature did not delimit the application of the provision of Limitation Law, which is an enactment contain special and robust provision in relation to how and when an action is statute barred.
In the same token, it will appear that in as much as the provision of the AMCON Act recognizes the applicability of the provision of the Limitation Law of a State, the reasonable conclusion is that any exception recognized under such law with respect to when a cause of action can arise, must be accommodated in cause of action relating to

eligible bank assets. All I am trying to say is that although the provision of the AMCON Act states when the cause of action with respect to eligible bank asset can be deemed to have arisen and when the time shall begin to run, the Limitation Law expresses the time within which any action relating thereto must be brought, so that the two enactments seek to complement one another and must be so construed. To this extent, in as much as Section 38 of the Limitation Law recognize a clear exception to the provision of Section 8 which if read with Section 35(5) of the AMCON Act implies that an action must be brought within 6 (six) years of the acquisition of the eligible bank asset, my view is that Section 38 is applicable to AMCON Matters, hence the instant case.
Section 38 of the Limitation Law of Lagos State deals with the acknowledgement of debt and its implication for the purpose of determining when a cause of action arises. The authorities are settled that acknowledgement of debt awakens and renews a cause of action, thereby giving the comatose cause of action a new breath of life. Such an acknowledgement of debt may be established where a debtor

makes unequivocal admission of the debt owed the creditor after the limitation law has caught up with the debt. It is now settled law that, unlike other causes of action, limitation of action does not extinguish the right to the debt but it merely bars the right to recover the debt because of lapse of specified period in the law of Limitation from the accrual of cause of action. See NIGERIA SOCIAL INSURANCE TRUST v KLIFCO NIGERIA LIMITED (2010) LPELR 2006(SC); [2010] 13 NWLR (PT 1211) 307 SC where the Supreme Court held as follows:
… Meaning that there must have been an initial indebtedness which according to the Limitation law is statute barred arising after a lapse of a period of years from the accrual of cause of action in the case. The limitation law here is a period of 6 years being a simple debt. However, where there is acknowledgment of the debt, the right to recover by an action is revived and it is the crux of the matter in this case.
It must be noted that what constitutes acknowledgment is a matter of fact depending on each case. See THADANI AND ANOR V. NATIONAL BANK OF NIGERIA (1967 ? 1975) 2 NBLL. 383 per COKER,

JSC. What I must further state as settled law that is that the law of Limitation here has not extinguished the right to the debt; the instant debt has no right to recover the debt because of lapse of specified period of time in the law of limitation from the accrual of cause of action. However, where there is acknowledgment of debt, which must be in writing signed by the party that is liable, the right to recover the debt by action is revived and what constitutes acknowledgment is such cases is a matter of fact in each case, If I may repeat. In other words, what constitutes acknowledgment will depend on the construction placed on the words by the Court in ascertaining what the words mean. See SPENCER v HEMMERDE (1922) A. C519 at 5264 (Supra). As rightly held in the Spencer case (Supra) at P. 526 the question is ?what the debtors words mean; and not what he meant when he wrote them?. Thus, making the debtors motive for the acknowledgement most irrelevant in the matter.
The defendant has inter alia alleged that the revived debt in this matter not having been quantified that further agreement will be required and so that the alleged

acknowledgement, if at all, as per Exhibit “J” is insufficient to revive the debt. Let me observe pre-emptorily, that I take the view that the quantification in figures of the outstanding amount of the debt is capable of ascertainment by mere calculation without further evidence.
I must recapitulate that this being a simple debt the period of limitation is 6 years. What seems to emerge from the opposing contentions of the parties here is whether by the above underlined phrase i.e. the acknowledgment as in the extract of Exhibit “J” it is a sufficient and clear acknowledgment of the Defendant’s Indebtedness that a promise to pay is inferable from it and so take this matter outside the operation of the limitation law; see AJIKE V CARDOSO (1939) WACA 134.
I have above set out an abstract of Exhibit “J” – the acknowledgement letter from the defendants and to observe that the Court has to satisfy itself that by construing the words from the acknowledgment letter it can be inferred as a matter fact if I may come again, a promise by the debtor to pay the debt. By a line long of decided cases acknowledgement of debt owed to a Creditor has to be unconditional

and unequivocal. The words used by the debtor to recognize the existence of the instant debt are ?that our computation of our indebtedness differs from yours These words having been construed in the con of the letter couldnt be more absolute and unconditional as to the acknowledgment of indebtedness of the defendant to the plantiff. Nothing could be more positive than the said phrase i.e underlined words in acknowledging of the said debt. There is no doubt of their being absolutely and unconditionally unequivocal on the indebtedness. It is not required as espoused in many cases that the precise amount i.e figures of the debt must be stated, in this case in Exhibit L and as I said above the amount here is ascertainable without any difficulty and without further evidence. In AJIKE v CARDOSO AND ANOR (Supra) this point has been highlighted and if I may restate, it has held that it is not necessary to set out the precise amount of the debt. See also THADANI AND ANOR V NATIONAL BANK OF NIGERIA (Supra).
A community reading of Sections 38 and 45 of the Limitation Law of Lagos State for the conditions for

acknowledgement, to wit, that every acknowledgment must be in writing and signed by the person making the acknowledgement. See FIRST BANK OF NIGERIA PLC v STANDARD POLYPLASTIC INDUSTRIES LIMITED (2018) LPELR ? 44081 (CA).
In the instant case, it is not in dispute that the cause of action arose in December, 2010 when the eligible bank asset was acquired by the Respondent vide a Loan Purchase and Limited Servicing Agreement executed between the Respondent and Afribank Nigeria Plc. See pages 45 to 82 of the record of appeal. Ordinarily, the cause of action in relation thereto shall be deemed to have arisen in December, 2010 so that any action predicated upon such cause of action must be commenced within six months of the acquisition of the eligible bank assets. However, the Respondent has argued that consequent upon the accrual of cause of action, the Appellants through their counsel acknowledge the alleged indebtedness sometime in 2011 vide a letter dated May 7, 2012 which has thereby revived the cause of action, so that time does not begin to run from December, 2010 but from the time the acknowledgement was made. In the said letter of May 7, 2012,

found at page 87 of the record of appeal, reads:
RE: MYEKO NIGERIA LIMITED TRANSFER OF NON-PERFORMING LOANS TO AMCON
The above matter and your letter dated 12th May, 2011 refers.
Our Client hereby proposes a meeting in respect of its outstanding exposure to the defunct Afribank Nigeria Plc.
Kindly confirm if any of the following dates is convenient 16th, 17th, or 18th May, 2012 at 12 noon, at your office.
The purpose of the said meeting is for parties to mutually agree on a suitable payment plan for the liquidation of the outstanding sum of N288,971,866.64 (Two Hundred and Eighty-Eight Million, Nine Hundred and Seventy One Thousand, Eight Hundred and Sixty Six Naira, Fifty Four Kobo) only.
Thank you.
Yours faithfully
Olalekan Diaro.
It is evident from the above that the Appellants have indeed acknowledged being indebted to the Respondent by the said letter, which contents have been reproduced above, seeks a compromise on a payment plan for the liquidation of the outstanding sum. Therefore, without seeking guidance from anywhere else, I hold the view, which is the right one, that the position

of the law as stated by the Supreme Court above in NIGERIA SOCIAL INSURANCE TRUST v KLIFCO NIGERIA LIMITED (Supra) is applicable to the instant case.
Nevertheless, it is the contention of the Appellants that the letter of May 7, 2012 cannot be relied upon by the Court in reaching the conclusion that the Appellants acknowledged the debt. Counsel had argued that the Court is estopped from relying on the said letter which was made during negotiation, in an attempt to settle the disputes as regards the purported debt. I agree with the Appellants? counsel that the position of the law is firmly settled that a statement made in the course of a negotiation and admission made during a bonafide attempt to settle a dispute cannot be relied upon by the Court. I am however persuaded by the reasoning and conclusion of this Court in a recent judgment inPACERS MULTI-DYNAMICS LIMITED & ANOR v ECOBANK (2018) LPELR 45008 (CA), where my learned brother, IKYEGH, J.C.A. aptly held:
A letter written with the expression ‘without prejudice’ is restricted only to cases where there is unresolved dispute or negotiation is still in progress and is yet

to crystallize into an agreement between the parties to the dispute in which case the letter or correspondence is inadmissible in evidence on the footing that con?dential overtures so made should be excluded from evidence on the ground of public policy. Because if it is not so, amicable settlement of disputes would be difficult and the defendant would be prejudiced and/or unprotected by a grasping adversary who may exploit the amicable arrangement to settle the dispute by relying on an offer made in the course of the negotiation as binding on the person that made it in disregard of the fact that it was made under disputed circumstances or at the time there was dispute between the parties. In the instant case, the extract (supra) which referred to what was arrived at a meeting between the representatives of the parties on 11-08-1999, while the letter, Exhibit AS1, was on 18-11-99 indicated concluded agreement on the quantum of indebtedness in that meeting of 11-08-99 which is unequivocal admission of the amount in question by the appellants, so the expression “without prejudice” in Exhibit AS1 became cosmetic or decorative and/or impotent and did not drain

the agreed indebtedness of potency and e?cacy vide Greyshot Enterprises Limited v. The Hon. Minister of Agriculture and Ors. (supra) at 22 – 23 where it was held inter alia that if, however, there is a concluded agreement the fact that the correspondence is ‘without prejudice’ would not affect its admissibility in evidence. Thus in United Bank for Africa Limited v. I.A.S. Company Limited (2001) FWLR (pt.75) 578 cited with approval by the learned author, S.T. Hon. SAN, in his great works titled ‘S.T. Hon’s Law of Evidence in Nigeria (vol.II)’ published in 2012 in pages 858 – 859 thus ” If ‘A’ owes ‘B’ N1,000.00 and “A” writes ‘B’ admitting that he owes the amount but offers to pay N900.00 in final settlement, it seems to me that even if the offer is made without prejudice, the evidence of admission ought to be receivable in evidence… Now, can it be said that the letters written by the 1st plaintiff’s solicitor under the cover “without prejudice” ought to be excluded from evidence on the ground that they covered admissions made in the course of bona ?de negotiation? I think not. The solicitor to the 1st plaintiff/respondent never in any of the letters

disputed that a loan of N70, 000.00 was granted to his client. … therefore, the plaintiff’s solicitor by writing exhibit BON7 was not in the course of negotiating to resolve a dispute …Merely putting the heading on the letter “without prejudice” cannot in my view make it inadmissible. This was not a negotiation in good faith to compromise a dispute.”
The subsequent letters in question being on the modalities for repayment of the agreed indebtedness cannot be said to be continuation of negotiation of the quantum of indebtedness because once a debt is admitted, the mode or time for repayment is a different matter vide Kenfrank Nigeria Limited and Ors. v. Union Bank of Nigeria Plc (2002) 8 NWLR (pt.789) 46 at 73 per the lead judgment prepared by Ikongbeh, J.C.A., (now of blessed memory).
The above reasoning and conclusion is in my view, unimpeachable and I adopt it as mine in this appeal. It is instructive that the letter dated May 7, 2012 was not marked ?without prejudice? and even if it is marked, there is nothing on the face of the said letter to show that it qualifies for those that are inadmissible for being made during

negotiations, as held by the Apex Court in ASHIBUOGWU v A-G. BENDEL STATE (Supra) and FAWEHINMI v NBA (No. 2) (Supra). In the instant case, it seems to me, from the letter written by the 1st Appellant?s to the Respondent on 22nd March, 2011 and the attendant response by the Respondent on 12th May, 2011, there is already an agreement between the parties that the outstanding amount due and owed by the Appellants is in the sum of N 288,971,866.54. In the Appellants? letter of 7th May, 2012, the Appellants solicitor ipso facto acknowledged the indebtedness in the said sum and further proposed further meeting as to the payment plan. Therefore, it is obvious that there is no dispute as to the amount owed by the Appellants, what was proposed by the Appellants solicitor merely an avenue to discuss ?a suitable repayment plan for the liquidation of the outstanding sum.Using the words of IKYEGH, JCA in PACERS MULTI-DYNAMICS(Supra), the Appellants solicitors letter dated 7th May, 2012 was not in written in the course of negotiating to resolve a dispute. There was not a negotiation in good faith to compromise a dispute.

The letter in question being on the modalities for repayment of the agreed indebtedness cannot be said to be continuation of negotiation of the quantum of indebtedness because once a debt is admitted, the mode or time for repayment is a different matter. I need not say more.
Issue iii having been struck out I need not go into it.
However Section 33 provides a cover for the corporation, bearing in mind states thus;
33. (1) As soon as possible, after the acquisition of an eligible bank asset from an eligible financial institution, the eligible financial institution shall notify the relevant debtor, associated debtor and guarantor or surety of the debtor and any other person that the Corporation directs of the acquisition of the eligible bank asset by the Corporation.
(2) The Corporation shall not be liable for any failure or delay in notifying any person under subsection (1) of this section and such failure or delay shall not invalidate the eligible bank asset concerned.
Also in section 34 of AMCON ACT;
Subject to the provisions of the Land Use Act and section 36 of this Act, where the Corporation acquires an eligible bank

asset, such eligible bank asset shall become vested in the Corporation and the Corporation shall exercise, all the rights and obligations of the eligible financial institution from which the eligible bank asset was acquired in relation to the bank asset, the debtor concerned and any guarantor, surety or receiver, liquidator, examiner or any other person concerned and the eligible financial institution shall cease to have those rights and obligations.
(2) Subject to the provisions of the Land Use Act and section 36 of this Act, the vesting of an eligible bank asset in the Corporation and the assignment of every relevant contract relating to an eligible bank asset in the Corporation upon the acquisition of an eligible bank asset by the Corporation as contemplated in subsection (1) of this section shall take effect and be effective notwithstanding any-
(a) contractual restriction on the acquisition, assignment or transfer of the bank asset or any part thereof or any contract relating thereto ; or
(b) requirement for a consent, notification, registration, authorization or license (by whatever name and however described).

Meanwhile, let me quickly say that the Appellants? argument that the Respondent lacks locus standi to institute the suit leading to the instant appeal, is not only unfounded, it is as well misconceived. The Respondent aptly referred to the instrument by which it acquired the asset in this case, vide paragraph 11 of the Statement of claim, wherein reference was made to the Loan Purchase and Limited Servicing Agreement executed sometime in December, 2010. This in my view put to rest the question as to whether the eligible bank asset was indeed acquired, as contended by the Appellants.

In the result, I resolve the first and second issues in favour of the Respondent. The conclusion is that the Ruling of the Federal High Court, Lagos division coram BUBA, J., delivered on the 20th November 2017, is affirmed. The suit is sent back to the high Court for speedy conclusion. Parties to bear their respective costs.

TIJJANI ABUBAKAR, J.C.A.: My learned brother OBASEKI-ADEJUMO, JCA granted me the privilege of reading in draft the leading Judgment just rendered in this appeal, I am in full agreement

with the reasoning and conclusion, and adopt the Judgment as my own, I have nothing extra to add.

TOBI EBIOWEI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA. I agree with the judgment and I have nothing to add as my learned brother in her lucid judgment has adequately covered the field.

Appearances:

Akinwale Irokosu with him, Ifeanyi Nnoye and A. Adekoya
For Appellant(s)

K.E.A. AdelekeFor Respondent(s)

Appearances

Akinwale Irokosu with him, Ifeanyi Nnoye and A. AdekoyaFor Appellant

AND

K.E.A. AdelekeFor Respondent