AMCON v. ASTONE QUARRIES LTD & ANOR (2021)

AMCON v. ASTONE QUARRIES LTD & ANOR

(2021)LCN/15165(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/C/149/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ASSET MANAGEMENT CORPORATION OF NIGERIA APPELANT(S)

And

1. ASTONE QUARRIES LIMITED 2. UNION BANK OF NIGERIA PLC RESPONDENT(S)

RATIO

WHETHER OR NOT A PLAINTIFF HAS A RIGHT TO CAUSE OF ACTION WHERE THE ACTION IS STATUTE-BARRED

Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus, where an action is statute barred, a plaintiff who might otherwise have had a cause of action losses the right to enforce it by judicial process because the period of time laid down by the limitation for instituting such an action has elapsed. See EBOIGBE V. NNPC (1994) 5 NWLR (prt. 347) 649, ODUBEKO V. FOWLER (1993) 7 NWLR (308) 637 and SANDA V. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (prt.174) 379. PER SHUAIBU, J.C.A.

WHEN DOES THE PERIOD OF LIMITATION BEGIN TO RUN?

It is also settled that the period of limitation begins to run from the date on which the cause of action accrued. Therefore, to determine whether an action is statute barred, all that is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the limitation law, then the action is statute barred. See EGBE V. ADEFARASIN (1987) 1 NWLR (prt.47) 1 at 20 – 21. PER SHUAIBU, J.C.A.

EXCEPTION TO THE LAW OF LIMITATION OF ACTION

I have earlier stated elsewhere in this judgment that the law of limitation of action recognizes some exceptions. Where there has been a continuance of damage, a fresh cause of action arises from time to time as often as damage is caused. In these types of situations, the limitation period will be frozen until after the cassation of the damage or injury. See OBUEKE V. NNAMCHI (2012) 12 NWLR (prt 1314) 327, A.G. RIVERS STATE v. A.G. BAYELSA STATE also reported in (2012)6-7 14MJSC (prt.3), ADEPOJU V. OKE (1999)2 NWLR (prt. 594) 154 and AREMO II V. ADEKANYE (2004)7 SC 28 at 42 – 43. PER SHUAIBU, J.C.A.

THE MEANING OF THE TERM “JURISDICTION”

The term “jurisdiction” denotes the power or authority which resides in the Court or tribunal to adjudicate upon matters or issue before it. Thus, jurisdiction is a power conferred upon a Court or tribunal by the Constitution or statute to decide or take cognizance of matters before it. See A.G. FEDERATION V. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (prt.618) 187 and SPDC NIG. LTD V. SIRPI ALUSTEEL CONST. LTD (2007)1 NWLR (prt.1063) 128 at 158. Where a Court lacks a jurisdictional competence to decide a matter or issue, it is devoid of the vires to adjudicate upon any issue therein. PER SHUAIBU, J.C.A.

THE MEANING OF THE TERM “COMPETENCE

The term “competence” on the other hand means the basic ability to do something. A Court will be incompetent and its proceedings regarded as a nullity where (a) the Court is not properly constituted as regards members and qualification of members of the bench, (b) the subject matter of the action is not within the jurisdiction of the Court, and (c) the case is not initiated by due process of law or that there is a condition precedent to the exercise of jurisdiction. See MADUKOLU V. NKEMDILIM (Supra) and SKENCONSULT NIG. LTD V. UKEY (1981) 1 SC 6.

The law appears to be settled that the competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intertwined and interwoven. The words competence and jurisdiction are often used as if they mean one and the same thing. The competence of the Court is the hand maiden of the Court’s jurisdiction and hence the Court must have both jurisdiction and competence to be properly seised of a cause or matter. In MOBIL PRODUCING NIGERIA UNLIMITED V. LAGOS STATE ENVIRONENTAL PROTECTION AGENCY & ORS (2003) FWLR (prt. 137) 1029, the Supreme Court per AYOOLA, JSC while dwelling on jurisdiction stated to the following effect, that the tendency to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on the ascertainment of facts leads to error. His lordship fashioned out the following guidelines: (i) Where on the face of the proceedings of a superior Court is competent, incompetence should not be presumed;
(ii) Where on the face of proceedings the Court is incompetent, the Court should itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties, if it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings;
(iii) Where the competence of the Court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of fact, the Court should regard such incompetence as arising ex-facie;
(iv) When the competence of the Court is affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on the ascertainment of facts, the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the Court should be tried first before the Court makes a pronouncement of its own competence.
(v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the Court, it is for the party who alleges the Court’s incompetence to raise the issue in his statement of defence in proceedings commenced by writ of summons or by affidavit in cases commenced by originating summons;
(vi) A judgment given in proceedings which appears ex-facie regular is valid.

In MAFIMISEBI & ORS V. GOVERNOR OF ONDO STATE & ORS (2012) LPELR – 8477 (CA) it was held that any question bordering on jurisdiction is an attack on the foundation or root of the competence of the Court to adjudicate the particular dispute before it. Therefore if there is any defect in the Court’s competence to adjudicate on any cause or matter, the proceedings are null and void ab initio. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, sitting in Calabar, Coram Hon. Justice I. E. Ekwo delivered on 26th day of March, 2018 overruling the appellant’s preliminary objection.

The 1st respondent as plaintiff at the lower Court took out a writ of summons and statement of claim filed on 11th December, 2015 seeking for the following reliefs jointly and severally against the defendants thereof:-
(a) A declaration that the 1st defendant’s failure, negligence or refusal to release the sum of N205,000,000.00 to the claimant as per the Central Bank of Nigeria/Bank of Industry’s guidelines on the disbursement of the Intervention Fund was unlawful and constitute a breach by the 1st defendant of the loan contract agreement and has rendered the loan agreement inoperative, null, void and of no effect howsoever.
(b) A declaration that the claimant is not indebted to the 1st defendant and or the Central Bank of Nigeria/Bank of Industry, under the intervention loan agreement, the loan amount having not been disbursed to the claimant but withheld by the

1st defendant and also not indebted to the 2nd defendant.
(c) A declaration that the claimant is entitled to the loan disbursed of N205,000,000.00 as per the CBN/BOI guidelines.
(d) An order for the 1st defendant to release to the claimant the sum of N205,00,000.00 in compliance with the Central Bank of Nigeria/Bank of Industry directives.
(e) An order for the rescheduling of the loan repayment with effect from the date of release of funds to the claimant.
(f) A declaration that the 1st defendant’s transfer of the claimant’s account to the 2nd defendant in the circumstance of this case is unlawful, null and void.
(g) An injunction restraining the 2nd defendant from interfering, taking over, managing or dealing in any manner howsoever with the assets of the claimant which were used to secure the failed loan.
(h) Interest at the rate of 25% per annum on the sum of 205,000,000.00 which the defendant kept and deprived the claimant to which the money was granted from using same for the purpose it was granted, with effect from 1/8/2010 till date of judgment.
(i) Special damages of N50,000,000.00 per month with effect

from 1/8/2010, being net loss of revenue accruable to the claimant.
(j) General damages of N2.0 billion from breach of contract.

Upon being served with the above originating processes, the appellant as 2nd defendant filed a notice of preliminary objection praying for the following:-
(A) An Order of the Honourable Court dismissing this suit in limine with respect to the 1st defendant/applicant for being statute barred.
OR IN THE ALTERNATIVE
(A) An order of the honourable Court striking out the name of the 2nd defendant/applicant from this suit for lack of jurisdiction and incompetence.
(B) And for such further or other orders as this honourable Court may deem fit to make in the circumstances.

Issues on the preliminary objection were joined by the appellant and 1st respondent herein and after considering their respective affidavit evidence, learned trial judge overruled the said objection at pages 217 – 218 of the record of appeal thus:
“I am unable to see any ground of this objection or argument thereto making reference to any provision of the Constitution or statute giving or divesting jurisdiction of

this Court and relied upon by the learned counsel for the 2nd defendant/applicant.
I cannot therefore say that there is any issue of jurisdiction of this Court in preliminary objection.
On the other hand, the provisions of Section 2 (a) of the POP Act and Section 43 (1) (a) and (3) of the AMCON Act 2010 referred to and relied upon by the learned counsel for the 2nd defendant/applicant raise issue of competence of this suit and not jurisdiction per se. In clear terms, the issues dealt with in these provisions can found points of law for which the 2nd defendant/applicant can raise pursuant to Order 16 of the FHCCPR 2009 and this is what has happened in this preliminary objection. I repeat this is not therefore issue of jurisdiction.
I see no merit in the issues canvassed by the 2nd defendant/applicant in this preliminary objection.
I have already found that Section 2 (a) of the POP Act does not apply to this case and the plaintiff/respondent has reasonable cause of action against the 2nd defendant/applicant and I so hold.
I therefore make an order dismissing the preliminary objection of the 2nd defendant/applicant for lacking in merit.”

Dissatisfied with the above, appellant appealed to this Court through a notice of appeal filed on 6/4/2018. Distilled from the said notice of appeal, learned appellant’s Counsel S. A. Okporie, Esq. formulated three issues for the determination of this appeal as follows:-
1. Whether the trial Court was right in holding that the 1st respondent’s suit was not statute barred against the provisions of Section 2 (a) of the Public Officers Protection Act, when the suit was commenced more than 3 years after the cause of action arose and when there was neither specific or special contract between the 1st respondent and the appellant nor a breach thereof?
2. Whether the trial Court was right to have held that the appellant’s preliminary objection against the 1st respondent’s suit is not an issue of jurisdiction of the Court?
3. Whether the trial Court was right to have delved into the substantive suit and evaluated the evidence of the 1st respondent while considering the preliminary objection of the appellant against the suit?

Learned counsel to the 1st respondent, Assam A. Assam, Esq., adopts all the three

issues formulated by the appellant.

On issue one, learned appellant’s counsel contend that the appellant is a Federal Government Agency through which the said government carries out its functions. That being so, an action against the appellant cannot be commenced without having regard to the limitation period stipulated in the Public Officers Protection Act. Counsel further contend that the cause of action leading to this suit against the appellant arose on the 5/4/2017 while the action was filed on 11/12/2015, a period of more than three years and eight months which is clearly outside the three months period allowed by Section 2(a) of the Public Officers Protection Act. He then submits that the action is statute barred.

As to whether the provisions of the public officers protection Act applies to an action in contract, counsel contends that same depends on the nature of the contract. If the contract is in the nature of what the public body has been set up to do in the daily discharge of its statutory responsibilities, then public officers protection Act will apply but if the contract is special or specific in the sense that it is not in

respect of the daily discharge of the statutory responsibilities of the public body, then the public officer’s protection Act will not apply. He submits that the applicability of the public officers’ protection Act in the present case lie on the nature of the contract as well as the statutory duties and responsibilities of the appellant. In aid, counsel relied on Sections 4 (c) and 5(c, e &f) of AMCON Act and the case of BAKARE V. NRC (2007) 17 NWLR (prt.1064) 606 at 650 to the effect that the nature of the transaction between the appellant and the 2nd respondent is such that falls within the statutory responsibility or day to day activities of the appellant.

In response to the above, Counsel to the 1st respondent submits that the suit at the trial Court relates purely to an issue of contract to which public officers protection Act does not apply. He referred to OSUN STATE GOV. V. DALAMI NIG. LTD (2007) 9 NWLR (prt.1038) 66 at 100, OKOLIE & ORS V. INEC (2017) LPELR – 446-450 and F.G.N. V. ZEBRA ENERGY LTD (2002) 18 NWLR (prt.789) 162 at 196.

In further argument, counsel submits that by virtue of Section 34 (1) of the AMCON 2010

that upon the purchase of the loan exposure, the appellant stepped into the shoes of the 2nd respondent and therefore is subject to all the obligations of the 2nd respondent. Hence, the appellant is in a contractual relationship of a continuing nature with the 1st respondent which takes the present suit away from Section 2(a) of the Public Officers’ Protection Act relying on the cases of A.G. RIVER STATE V. A.G. BAYELSA STATE (2013) 3 NWLR (prt.1340) 123 and INEC V. OGBADIBO LOCAL GOVT. & ORS (2015 LPELR – 24839 (SC).

The crucial question here is whether the 1st respondent’s action at the trial Court was caught up by the provisions of Section 2 (a) of the Public Officers’ Protection Act which prescribes a period of three months for commencing a civil suit against public officers. Section 2 (a) of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004 provides as follows:-
“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in

respect of any alleged neglect or default in execution of any such Act, Law, duty or authority, the following provisions shall have effect.
(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in the case of continuance of damage or injury, within three months next after the ceasing thereof.”

It is also settled that the period of limitation begins to run from the date on which the cause of action accrued. Therefore, to determine

whether an action is statute barred, all that is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the limitation law, then the action is statute barred. See EGBE V. ADEFARASIN (1987) 1 NWLR (prt.47) 1 at 20 – 21.

By the averment in paragraph 29 of the statement of claim, it is glaringly clear that the cause of action in the present case arose on 5/4/2012 when the 2nd respondent caused a letter titled transfer of loan exposure and addressed to the managing Director of appellant. Also clear is the fact that the action giving rise to this appeal was filed on 11/12/2015, a period of more than three years. The provision of Section 1 (i) of the Asset Management Corporation Act, 2010 also established the appellant and thereby made it a statutory corporation within the contemplation of Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Thus, the appellant is a public

service protected by Section 2(a) of the Public Officers Protection Act.

It is however pertinent to stress here that parties in this suit are neither contending that the suit was filed within the three months period prescribed by Section 2(a) of the Public Officers Protection Act nor the status of the appellant as public service. The main contention is simply whether the cause of action of the suit is such that is protected under the Public Officers’ Protection Act. While the appellant argued that purchasing eligible bank asset like that of the 1st respondent from the 2nd respondent being an integral part of its statutory duty is not a contractual relation, the 1st respondent maintain that it is purely an issue of contract and therefore the Public Officers Protection Act does not avail the appellant in the circumstances.

Admittedly, legal principles are not always inflexible as they sometimes admit certain exception. The law of limitation of action recognizes some exception and thus the provision of Section 2(a) of the Public Officers’ Protection Act has been severally interpreted by the Courts with respect to its application to

contracts entered into by public corporation such as the appellant. In this regards, I have carefully considered the cases cited and relied by the respective counsel. The position appears to be that the performance or breach of a contract which a public authority has the power but not the duty to make is not within the protection of the Act while the breach of a contract which the public authority has the duty or is by statute bound to make is within the protection of the Act. In other words, in determining the statutory provision on limitation of action against a public corporation in an action brought upon contract, the nature of the contract must be considered. Thus, if the contract in issue is one which a specific or special contract in which it might be expected that the parties would have freely agreed to the terms of the relationship between them, the provision of the limitation period will apply, unless the public corporation and the party contracting have specifically made it part of the terms of the contract. It was held in plethora of decisions also that the provisions of the Act does not apply to contracts of sale of land, construction contracts

claiming for work and labour done and/or where goods are sold and the price is to be paid upon quantum meruit because in all these instances refusal or omission to perform would be a failure to comply with the terms of the contract and not with the provisions of the statute. See NIGERIAN PORTS AUTHORITY V. CONSTRUCTION SPA (1974)1 ALL NLR (prt.2) 463; BAKARE V. NIGERIAN RAILWAY CORPORATION (2007) 17 NWLR (prt.1064) 606 and F.G.N V. ZEBRA ENERGY LTD (Supra). Where however, the contract deals with the day to day operations of the public corporation as provided by the statute governing the public corporation, the provisions of the Act will apply. It is premised on that basis that contracts of employment of staff of public corporations, are covered by the Limitation Act. See NIGERIAN BROADCASTING CORPORATION V. BANKOLE (1972) NSCC 220, IBEKWE V. NIGERIA NATIONAL PETROLEUM CORPORATION (2011) 6 NWLR (prt.1243) 245 and ADEBIYI & ORS V. NATIONAL INSTITUTE OF PUBLIC INFORMATION & ORS (2013) LPELR – 22628 (CA).

In the instant case, there was no specific contract between the appellant and the 1st respondent and the appellant’s purchase or

acquisition of the eligible bank asset from the 2nd respondent was performing one of the appellant’s day to day statutory functions as spelt out in Sections 4, 5, and 6 of the AMCON Act 2010. Thus the public officers’ protection Act is applicable to the present suit.

Learned respondent’s counsel also contended that upon the purchase of the loan exposure, the appellant stepped into the shoes of the 2nd respondent, and therefore subject to all the obligations of the 2nd respondent. Hence, the appellant is in a contract of relationship of a continuing nature with 1st respondent which takes away the suit from Section 2(a) of the Public Officers’ Protection Act.

MJSC (prt.3), ADEPOJU V. OKE (1999)2 NWLR (prt. 594) 154 and AREMO II V. ADEKANYE (2004)7 SC 28 at 42 – 43.

Upon careful perusal of the 1st respondent’s claim at the trial Court, same reveals that the appellant has no contractual relationship with the 1st respondent and the acquisition or purchase of the loan exposure by the appellant will not amount to stepping into the shoes of the 2nd respondent herein and the said contract having been terminated, could not be said to be continuing in nature. The position of the said contract is aptly stated in paragraph 36 of the statement of claim at page 11 of the record of appeal thus:-
“36. By transferring the claimant’s undisbursed loan exposure to the 2nd defendant, the 1st defendant has breached and unilaterally terminated its contract with the claimant without discharging its obligation to the claimant and has not only portrayed the claimant as non-performing, but has ruined the claimant’s borrowing capacity and other economic opportunities.”

I therefore agree with the submission of the learned appellant’s counsel that the 1st respondent’s suit not

being based on any continuance damage or injury, does not constitute an exception to the application of Section 2(a) of the Public Officers’ Protection Act. Issue one is therefore resolved in favour of the appellant.

The appellant’s contention on issue two is that the preliminary objection which was predicated on Section 2(a) of the Public Officers’ Protection Act as well as Section 43 (1) of the proviso to Section 43 of the Assets Management Corporation of Nigeria Act 2010 was clearly an issue of jurisdiction. Counsel cited and relied on the decision of MADUKOLU V. NKEMDILIM (1962)2 SCNLR 341 in submitting that the 1st respondent’s suit has features preventing the trial Court from exercising its jurisdiction.

On the part of the 1st respondent, learned counsel contended that the trial judge merely drew a distinction between an objection on the competence of a suit and an issue of jurisdiction especially having regards to the provisions of Orders 16 and 29 of the Federal High Court (Civil Procedure) Rules, 2009. Thus, the trial Court was not in error in distinguishing between competence and the issue of jurisdiction.

The bone of contention here relates to the ground upon which the appellant’s preliminary objection was based or predicated. That is to say, is it predicated on ground of competence or on jurisdiction of the Court?

Court, and (c) the case is not initiated by due process of law or that there is a condition precedent to the exercise of jurisdiction. See MADUKOLU V. NKEMDILIM (Supra) and SKENCONSULT NIG. LTD V. UKEY (1981) 1 SC 6.

In MOBIL PRODUCING NIGERIA UNLIMITED V. LAGOS STATE ENVIRONENTAL PROTECTION AGENCY & ORS (2003) FWLR (prt. 137) 1029, the Supreme Court per AYOOLA, JSC while dwelling on jurisdiction stated to the following effect, that the tendency to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on the ascertainment of facts leads to error. His lordship fashioned out the following guidelines:

(i) Where on the face of the proceedings of a superior Court is competent, incompetence should not be presumed;
(ii) Where on the face of proceedings the Court is incompetent, the Court should itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties, if it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings;
(iii) Where the competence of the Court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of fact, the Court should regard such incompetence as arising ex-facie;
(iv) When the competence of the Court is affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on the ascertainment of facts, the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the Court should be tried first before the Court makes a pronouncement of its

own competence.
(v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the Court, it is for the party who alleges the Court’s incompetence to raise the issue in his statement of defence in proceedings commenced by writ of summons or by affidavit in cases commenced by originating summons;
(vi) A judgment given in proceedings which appears ex-facie regular is valid.

The appellant’s preliminary objection in the main, alleges that the 1st respondent’s suit is statute barred. When a party raises the issue that an action is statute barred, he is in effect challenging the competence and jurisdiction of the Court to entertain the matter. See

ADEKOYA V. FEDERAL HOUSING AUTHORITY (2008)11 NWLR (prt.1099) 539. Issue two is also resolved in favour of the appellant.

On issue three, the contention of the appellant is simply that the facts and issues of debt, loan agreement, relationship of a contractual nature, contractual instrument, liquidation of debt obligatory tools and secured credit transactions were not before the trial Court for consideration at the stage of the preliminary objection. That being the position, the Court was not permitted to delve into them as same are for consideration only on the substantive suit.

The 1st respondent on its part contends that the Court could not have determined whether or not the suit is competent if it did not consider the claims, facts and the reliefs of the 1st respondent.

In ascertaining whether an action is statute barred, the Court looks at the date when the action was instituted and the date when the cause of action arose. Thus, the determination of whether an action is caught by statute of limitation is a matter of calculation of raw figures and a Court of law has no discretion in the matter. See EGBE V. ADEFARASIN and ADEKOYA V. F.H.A.

(Supras).

At page 214 of the record of appeal, the learned trial judge has this to say:-
“I can at this point consider it safe for me to hold that the subject matter of this action is contractual matter of continuing nature and remains so until the obligation thereof is liquidated. Again, I do not see the provisions of Section 43 (1) (a) and (3) of the AMCON Act 2010 relied upon by the 2nd defendant/applicant as applicable in this case as the only relief sought against the 2nd defendant/applicant found in relief (g) of the writ of summons is injunctive in nature.”

It is pertinent to note that at the point of interlocutory application, Courts are forbidden from delving into the merits of substantive issue before it. In BUREMOH V. AKANDE (2017) LPELR – 41565 (SC) it was emphatically held that a Court must avoid the determination of a substantive issue at the interlocutory state. Interlocutory applications must remain the handmaid and aid that enable the Court reach the ultimate goal of doing substantial justice between the parties in the real issue in litigation between parties.

In the instant case, the learned trial judge was

wrong to have delved into real issues which are meant for the hearing on merits. Issue three is resolved against the 1st respondent.

Having found that the 1st respondent’s suit was caught by the limitation law, this appeal has merit and it is hereby allowed. The ruling of the trial Court delivered on 26/3/2018 is accordingly set aside while suit NO.FHC/CA/CS/169/2015 is struck out for lack of jurisdictional competence.
Parties shall bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in advance the judgment delivered by my learned brother MUHAMMED L. SHUAIBU, JCA.
I agree with the reasoning and conclusion reached in the judgment.
I also agree that the appeal is meritorious and ought to be allowed.
I abide with the consequential order and the order as to costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother, M. L. Shuaibu, JCA and I agree that there is merit in the appeal.

For the reasons ably set out in the judgment, I too allow the appeal and set aside the ruling delivered on 26th March, 2018. Suit No.

FHC/CA/CS/169/2015 is hereby struck out.
I abide by all the Orders in judgment including the order as to costs.

Appearances:

Agbai N. Agwu For Appellant(s)

Assam Assam, Jr. – for 1st Respondent For Respondent(s)