LawPavilion Online



(2018) LPELR-43807(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of February, 2018


Before Their Lordships

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria


(Trading under the name and style of Amavic Electrical Industrial Nigeria) - Appellant(s)



Other Citations

; ;


This appeal borders on civil procedure.

This appeal is against the judgment of Abia State High Court in Suit No. HUK/2/2004, delivered on 22/6/2005 by Hon. Justice S.N. Imo (as he then was), wherein the Court held, against the Plaintiff (now Appellant), that the action was statute-barred.

At the High Court, the Appellant as Plaintiff instituted an action against the Respondent as Defendant claiming the following reliefs:
"(1) The sum of N11,703,729.00, being the money owed by the defendant to the Plaintiff.
(2) The sum of N1,700,000.00, being the Plaintiff's Solicitor's fees to recover the owed sum.
(3) 10% interest per annum on the owed sum till judgment is given, and another 10% interest per annum on the judgment debt from the date of judgment till when the debt is liquidated."

The Suit was placed on the Undefended List on the application of the Appellant. The Respondent subsequently filed a Notice of intention to defend the Suit and affidavit therefor, following which the Suit was transferred to the general Cause List for hearing and determination. Evidence was called. The Appellant called one witness and the Respondent called three witnesses. As part of the arguments of the Respondent. Counsel alleged/canvassed fraud against the Appellant, and collusion with staff of the Respondent, and submitted that the claim was incompetent, in that the condition precedent for bringing the action, by way of pre-action notice, was not complied with. He also submitted that the claim was statute barred, citing Abia State Local Government Law 1999, Cap 25 part XVL (Legal Proceedings and Limit of Suits against Local Government).

The learned trial Court agreed with the Defence Counsel, and held:
"A cause of action is said to be stature-barred (sic) if in respect of it, proceedings cannot be brought because the period laid down by the Limitation Law or Act has elapsed. The period of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing the date with the date on which the writ of summons was filed. This can be done without taking evidence from the Plaintiff... This writ was filed on 8th January, 2004. The Plaintiff's claim, relief 3 states:
"10% interest per annum on the owed sum from 1st January, 2002, till judgment is given in this Suit... This, no doubt, indicates the effective date of cause of action as relied upon by the Plaintiff. Thus, the time on the writ is far beyond the period allowed by the Abia State Local Government Law 1999, Cap 25. It is therefore my finding and I so hold, that this action is statute-barred." See pages 114 - 115 of the Records of Appeal.

Dissatisfied with the judgment the Appellant appealed to the Court of Appeal.

The Court determined the appeal on the two issues distilled by the Appellant, as follows:
"(1) Whether the learned trial Judges decision to strike out the Suit on account of a presumed "defective pre-action Notice" was not wrongful and has led to a miscarriage of justice. (Grounds 1, 2 and 4).
(2) Whether the learned Trial Judge was right to dismiss the action subject matter of this appeal by applying Section 137 of Abia State Local Government Law that deals with Limitation with respect to the exercise of Public Duty and authority instead of applying the Abia State Limitation Law that deals with contracts was justifiable. (Ground 3)."

On the whole, the Court held that the appeal succeeds. The Court made the following Orders:
"The Respondent (as Defendant) shall pay the Appellant (as Plaintiff):
(1) The sum of Eleven Million, Seven Hundred and three Thousand, Seven Hundred and Twenty Nine Naira (N11,703,729.00), being the money owed by the defendant to the Plaintiff.
(2) 10% interest per annum on the said outstanding contract sum from the date the judgment was due namely, 22/6/2005, till the debt is liquidated.???
The Respondent shall also pay the cost of this appeal assessed at Fifty Thousand Naira (N50,000.00) only."

Read Full Judgment