ABOLURIN v. GOVERNOR OF KWARA STATE & ORS (2018)

In The Court of Appeal of Nigeria

On Friday, the 23rd day of February, 2018

CA/IL/101/2015

Before Their Lordships

CHIDI NWAOMA UWA  Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA  Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO  Justice of The Court of Appeal of Nigeria


Between

ARCHITECT FUNSHO ABOLURIN
(Trading Under the Name and Style of Bolu Gibeon Associate)-Appellant

AND

1. GOVERNOR OF KWARA STATE
2. ATTORNEY GENERAL OF KWARA STATE
3. HON. COMMISSIONER, MINISTRY OF INDUSTRY AND SOLID MINERALS DEVELOPMENT, KWARA STATE-Respondents

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HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kwara State High Court of Justice sitting in Ilorin in Suit No. KWS/49/2014 delivered on the 24th of March, 2015 in which the Claimant’s claim was dismissed on the ground that the case is caught by the Limitation Law of Kwara State.
The Appellant a registered Architect forwarded a proposal to the 3rd Respondent upon the instruction of the Kwara State Government, for a working drawing on the basis of Quantities in respect of the proposed Kwara State Small Scale Industrial Estate proposed for Elekoyangan. The Appellant forwarded the said proposal for industrial building design and layout to the 3rd Respondent on the 5th of February, 2004. The Appellant thereafter demanded payment for the work done through letters dated the 8th of November, 2004 with reference No. GAU/2003/73/21 and one dated the 8th of April, 2005 with reference No. GAU/2003/73/43, and the Appellant in a meeting held with the 3rd Respondent on the 25th June, 2004, engaged the Appellant to produce the prototype sketch drawing for the industrial estate for Small Scale Industries in Kwara State, vide a letter dated the 5th of July, 2004; and submitted on the 19th July, 2004. On the 27th September, 2004, Appellant was still requested to submit a detailed working drawings and Bill of Quantities based on the proposal earlier submitted, which the Appellant complied with on the 8th of November, 2004 including his bill of quantities and professional services put at N54,723,767, which was eventually reduced to N30 million naira. The Appellant thereafter continued to press for the payment of his professional fees through letters, dated the 2nd of December, 2005; 31st January, 2007; 20th November 2007; 17th January, 2008; 21st October, 2008; 20th July, 2011 and 1st of October 2014 respectively.
The Respondents having failed and or refused to pay the fees demanded by the Appellant, resulted in his approaching the lower Court, when it caused a writ of summons to be issued against the Respondents claiming the following reliefs:
i. AN ORDER for the payment of the sum of N30,000,000.00 (Thirty Million Naira Only) being the agreed professional fees due to the claimant for the design of the Proposed Kwara State Small Scale Industrial Estate Elekoyangan and the ancillary consultancy services rendered by the Claimant in line with the instruction given by the Defendants.
ii. AN ORDER for the payment of 20% interest on the agreed professional fees of the sum of N30,000,000.00 (Thirty Million Naira Only).
iii. 10% interest on the Judgment sum from the date of the Judgment until when the Judgment sum is finally liquidated.
The Respondent did not file any statement of defense, but rather, relying on the content in one of the appellant’s letters of demand, observed therein that the payment for the work done having been due since November 2004, and Appellant having commenced the action in respect thereof on the 6th of March, 2014, a period of about 10 years, submitted that the appellant’s claim ran against the stipulation of 6 years provided under the provisions of the Kwara State Limitation Law, and the Appellant’s claim if any, has been caught up by the Statute of Limitation and therefore statute barred.
The lower Court received arguments on the issue, and on the 24th of March, 2015 ruled that:
In strict fidelity to the binding authorities on the point, I hereby declare that the Case is caught by the Limitation law of Kwara State and same is statute barred. I too will return a verdict of dismissal of the Case of the Claimant and the case is hereby DISMISSED.
Seriously agitated and displeased with the decision of the lower Court, Appellant on the 16/6/15 filed a Notice of Appeal predicated upon 18 grounds of Appeal.
From the 18 grounds of Appeal raised, Appellant distilled two issues for resolution, which are as follows:
1. The trial Judge was wrong when His lordship entertained and/or considered the Notice of Preliminary Objection filed by the Respondents to the effect that the case of the Appellant is statute barred, when the Respondents did not file their statement of defense let alone plead the relevant statute of limitation as required by the relevant provision of Kwara State High Court Civil (Procedure) Rules 2004. (Grounds 1 and 2).
2. Whether the trial Judge was right when His Lordship held that the case of the Appellant is caught by the Limitation Law of Kwara State and dismissed it, when the case of the Appellant is for payment of

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professional/consultancy fees agreed upon by the parties and when the injury or damage arising from the non-payment of the fees is a continuous one. More so, when the exceptions provided for under Section 33 of the Limitation Law of Kwara State availed the Appellant.(Grounds 3-17)
It is noteworthy that, the Respondent at page 5 of their brief, adopted the issues for determination, as formulated by the Appellant.
Arguing the first issue, whether the trial Judge was not wrong when his lordship entertained and/or considered the Notice of preliminary objection filed by the respondents to the effect that the case of the appellant is statute barred, when the respondents did not file their statement of defense, let alone plead the relevant statute of limitation as required by the relevant provision of Kwara State High Court (Civil Procedure) Rules 2004, the learned Counsel for the Appellant noted that the Respondents did not file any statement of defense, but rather elected to file and to argue a Notice of Preliminary Objection to the case of the Appellant on the ground that the appellant’s case was statute barred. He referred to the written address filed by the Appellant in opposing the Objection, reasoning that the Preliminary Objection could not be right having not been pleaded. He alluded to the holding of the lower Court on the issue at pages 172 -173 of the records, as well as the provisions of Order 27 Rule 4 (1) of the Kwara State High Court (Civil Procedure) Rules 2005, and submitted that the lower Court clearly jettisoned the clear provisions of the Rules in that regard, thus making nonsense the essence of the provisions.
He posits that rules of Court are meant to be obeyed and cited Muntaka Coomassie JSC, in Asika vs. Atuanya All FWLR (pt. 710) 1251-1266 amongst many other cases on the legal principle.
He submits that a Statute of Limitation must be specifically pleaded before a party can rely on it being a special defense, and citing avalanche of judicial authorities, specifically the cases of G. Cappa Ltd vs. DTN Ltd All FWLR (pt.740) 1254-1286 per Augie JCA (as he then was), Obatuga vs. Oyebokun All FWLR (pt. 754) 110-151 per Owoade JCA, and Joel Okunrinboye Export Company Ltd & Anor vs. Skye Bank Plc. (2014) LPELR 24330 (CA) amongst many others, learned Counsel emphasized that by raising the issue of Statute of Limitation without filing a defense amounted to resuscitating Demurrer proceedings, which has since been abolished in Kwara State as declared by Ikyegh JCA in Moyosore vs. Governor Kwara State (2012) 242 at 287.
The learned counsel further contended that the issue of Statute of Limitation is not a jurisdictional matter, and cannot be raised without being specifically pleaded, and alluding to the holding of the trial Judge on the issue, faulted the trial Court insisting that the issue of Limitation Law is not an issue of jurisdiction. He anchored his submission on the authority of NDIC vs. CBN (2002) 7 NWLR (pt. 766), Alh Jimoh Omotosho vs. Bank of the North Ltd & Anor (2006) LPELR 7580 (CA) per Ogunwumiju JCA and Aboshi vs. Fele (2012) LPELR 8610 (CA) per Onyemenem JCA, amongst others.
He therefore prayed the Court to resolve the issue in the Appellant’s favor.
Responding to the issue, the learned Attorney-General, Kwara State Ministry of Justice, opined that the Appellant by his own showing indicated that the said payment of consultancy fee for the work done had been due since November, 2004; and therefore the time the cause of action arose. He noted that the Appellant did not commence his action until the 6th of March 2014, a period of about 10 years after the accrual of the cause of Action, and as such Appellant’s cause of Action if any is statute barred, and thereby robbed the trial Court of competence and jurisdiction to entertain the same. He appraised the claimant’s case before the lower Court and the Respondents Preliminary Objection raised by them, and further made reference to Order 26 Rule 1 and 2 of the High Court (Civil Procedure) Rules of Kwara State 2005, and submitted that there are many ways of challenging the jurisdiction of the Court, opining that it is not mandatory for the Respondents who sought to challenge the jurisdiction of the Court on points of law to file a statement of defense. He goes on to argue as held in the case of UTC vs. Pamotei (1989) 2 NWLR (pt. 103) 244 @ 296, to the effect that though rules of Court are meant to be obeyed, they are mere rules and regulations and cannot be elevated to the status of a statute. He argued that an application challenging the jurisdiction of the Court can be

…………………….C…………………….

taken at any time. He referred to the decision of Bambe & Ors vs. Aderinola & ors (1977) NSCC 1, and NDIC vs. CBN (2002) 7 NWLR (pt. 766) 2723, and submits that the decisions in the cases cited showed that the issue of jurisdiction is different from demurrer, and does not entail filing any statement of defense to raise it. He harps on the legal principle that jurisdiction is fundamental, and goes to the root of the action before the Court, therefore any determination made in the absence of jurisdiction is a labor done in vain. He urged the Court to discountenance the cases cited by the appellant and to hold that the preliminary objection was competent, even in the face of Order 26 of the Kwara State High Court (Civil Procedure) Rules.
Resolution.
The issue for contention here appears very narrow indeed. It relates to the competency of the preliminary objection filed and heard by the lower Court. There is no dispute to the fact that respondent upon being served the claim of the appellant, did not file any statement of defense, but rather filed a preliminary objection, in which he contended that the claimants case before the Court was statute barred.
From the stipulations of Order 27 Rule 4(1) of the Kwara State High Court (Civil procedure) Rules 2005, which provides:
27 4 (1) a party shall plead specifically any matter ( for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which if not specifically pleaded, might take the opposite party by surprise.
4 (2) any condition precedent, the performance or occurrence of which is intended to be contested, shall be specified in the pleadings of the parties; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the parties shall be implied in the pleadings.
It is clear therein that a party intending to rely on the statute of limitation to the suit, must file a statement of defense and plead with specificity the relevant statute of limitation relied upon as a defense. This statement has support from the decision of Augie JCA (As he then was) in the case of G. Cappa Ltd vs. DTN Ltd All FWLR (pt. 740) 1254 ??? 1286, where his lordship held that:
In other words, law need not be pleaded before a party can rely on the same. But a party relying on a special statutory provision for his defense must plead that defense specifically.
Emphatically, his lordship held in consonance with the decision of the Apex Court in the case of Oyebamiji vs. Lawanson (2008) ALL FWLR (pt. 438) 236, that;
a party wishing to rely on a statute of limitation or the administration of estates law must specifically plead same.
See also Owoade JCA in Obatuga vs. Oyebokun ALL FWLR (pt. 754) 110 @ 151, thus;
n deciding appellant’s issue no 3, few important points must be made. The first is that a party relying on a statute of limitation or claiming that an action is statute barred must specially and specifically plead and prove such facts to activate the jurisdiction of the Court to consider such facts or circumstances.
See also the cases of Joel Okunrinboye Export Company Ltd & Anor. vs. Skye Bank Plc (2014) LPELR  24330, Moyosore vs. Gov. Kwara State (2012) All FWLR 242 @ 288. That however is not the end of the issue. There is the contention by the respondents counsel, that an application challenging the jurisdiction of the Court can be filed and taken at any time of the proceedings i.e. before the completion of pleadings. It was also contended that an application/objection seeking for the order of the Court striking out a suit for being incompetent on the ground of jurisdiction, cannot amount to a demurrer contemplated by Order 26 (1) of the High Court of Kwara State Civil Procedure Rules, 2005. The decision of the Apex Court in the case of Ajayi vs. Adebiyi & Ors (2012) 8 SMC 1 @ 29  30 was cited in support. It was also argued that a Court can only assume jurisdiction, where that jurisdiction exists, and the rules of Court cannot dictate when and how the issue of jurisdiction can be raised, owing to the fundamentality of jurisdiction. Learned Counsel sought for support in the cases of ICI Ltd vs. SBN Plc (2006) AFWLR (pt. 325) 108 @ 139 and Elabanjo vs. Dawodu (2006) ALL FWLR (pt. 328) 604 @ 638. Learned counsel pursued the issue further in contending that when a Court has no jurisdiction to entertain a given claim, the fact that the defendant is mandated to go and file statement of defense and to raise same therein will not

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without more confer jurisdiction on the Court. He insists that the issue of jurisdiction being a threshold issue, no matter the manner in which it was raised, the Court must determine same at the earliest opportunity. Furthermore it was argued that by Order 4(1) of the Kwara State High Court (Civil Proceedings) Rules 2005, the failure to plead the limitation law will not vitiate the proceedings nor nullify the judgment.
The Apex Court seems to think the same way too. In Williams vs. Williams (2008), Aloma Muktar JSC, stated:
The statute of limitation is a matter of jurisdiction which can be raised at any stage of litigation, and I will add here even in the Supreme Court. In my words in the very recent case of FRIN vs. Gold (2007) 11 NWLR (pt. 1044) 1, 
There is no doubt this rule connotes the mandatory procedure, but it does not preclude a party from raising the defenses of statute of limitation at an appellate Court vide leave to do so at the Court of 1st instance, because such issue borders on the fundamental issue of jurisdiction???.

In the same vein, Ogbuagu JSC in the case of Alhaji Bello Nasir vs. Civil Service Commission Kano State, (2010) 6 NWLR (pt. 1190) 253; had this to say on the point:
It is now firmly settled that issue of jurisdiction or competence of a Court to entertain or deal with a matter before it is very fundamental. It is a point of law and therefore a rule of Court, cannot dictate when and how, such point of law can be raised. Being fundamental and a threshold issue of jurisdiction. It can be raised at any stage of the proceedings in any Court including this Court. An appellate Court can even raise it suo motu..mandatory statutory provisions and therefore a rule of Court cannot override statutory provisions of the law. See also Katto vs. CBN (1991) (pt 214) 126.
The Apex Court went on to say in the case of Olagunju vs. Power Holding Company of Nigeria Plc (2011) LPELR 25561 that it is settled that a defense found on statute of limitation is a defense that the plaintiff has no cause of action, it is a defense of law which can be raised in limine and without any evidence in support. It is sufficient if prima facie, the date of taking the cause of action outside the prescribed period is disclosed in the writ of summons and statement of claim. Lending her voice to the issue in contention, Adekeye JSC, in the case of Dr Tosin Ajayi vs. Prince Mrs Olajumoke Adebiyi & Ors (2012) LPELR 7811 SC, stated that:
Limitation law and locus standi are both threshold issues which can be raised anytime or for the 1st time in the Court of Appeal or in the Supreme Court. It is not limited to being raised as a special defense and pleading them specifically as required by the rules of Court under Order 22 Rule 2 of the Lagos State High Court (Civil Procedure) Rules. It can be raised by preliminary objection at any stage of the proceedings, before any Court, by any of the parties or even suo motu by the Court???.
It is very clear from the foregoing, that the position of the Apex Court on the matter appears to be in conflict.
In the course of writing this judgment, my attention was drawn to the decision of this Court in the case of The Shell Petroleum Development & 5 Ors vs. E.N.Nwawka and 1 Or, (2001) 10 NWLR (pt. 720) 64 @ 79  81, per Pats-Acholonu JCA (as he then was), faced with the strong contention from Chief Williams, to the effect that there was no justification for the lower Court to lampoon the appellants for non-compliance with the provisions of the order stating that as the application in the Court below was on the question of the jurisdiction of the Court, he need not come by the strict provision of the order. The erudite jurist, stated that:
it is not in all cases that the Court should ignore the provisions of Order 24 Rule 2. It may do so where the only issue to argue is that of lack of jurisdiction. It seems to me that where the defendant conceives that there is no cause of action and that the pleading should be struck out, then he ought to file a statement of defense and thereafter raise the preliminary point which can be taken.i believe that where the issue of jurisdiction simpliciter is raised, it can be taken first whether or not a defense pleading has been filed. Where the issues are so mixed up that it will need a proper investigation going by the facts and the law averred, then the Court may decide in the interest of justice to have the pleading of the defense before causing the legal issues to be first argued and disposed of.
For me, I think this

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is the correct position of the law. The recent case of Kolade vs. Ogundokun (2017) All FWLR 1557 @ 1571, per Onnoghen CJN, settles the issue, having stated that:
while it is settled law that a party intending to rely on a statute of limitation or the Administration of Estates Law must plead same: it is also settled law that generally, facts are what are required to be pleaded and that it is sufficient. In an action under the Administration of Estates Law, to plead the relevant facts and indicates the intention of the party to rely on its provisions– see Monier Construction Co Ltd vs. Azubuike (1990) 3 NWLR (pt. 136) 74; Oyebamiji vs. Lawanson (supra); Oguigo vs. COP (1991) 3 NWLR (pt. 177) 46 and Famuyiwa vs. Folawiyo(1972) 1 ALL NLR (pt. 2) 11
I must therefore faced with the question, whether the trial Court was right or not in entertaining and considering the Notice of Preliminary Objection filed by the respondents, when same was not pleaded in obedience to the provisions of the Kwara State High Court (Civil Procedure) Rules 2004, and in view of the discordant views offered by the Apex Court, abide the wise decision of my lord Ogundare JCA (as he then was) in Alh. Abubakar vs. Egbe (1986) 1 NWLR (pt. 16), also reported as (1986) LPELR  20949 (CA), having stated that where there are conflicting decisions of the Supreme Court, that conflict can only be resolved by them; and the principle of the law remains that where there are two or more conflicting judgments of a Court, it is the latest in time that constitutes res-judicata. See Mackson Ikeni vs. Chief William Akuma Efamo (2001) 5 SC (pt. 1) 160 per Ayoola JSC. See also Opene vs. NJC (2011) LPELR 4795 (CA); Glaxo Smithkline Plc vs. Jiya (2014) LPELR  CA/K/147/2012, Osakwe vs. FCE Asaba (2010) 10 NWLR (pt. 1201) 1. There is no discretion in the matter, and no matter how strong you may feel about the decision, you remain bound by the decision of the superior Court, in view of the principle of stare decisis. That being the case and in view of the latest decision in Kolade vs. Ogundokun (supra), which is to the effect that a party intending to rely on a statute of limitation must plead same, as stipulated by the rules of the lower Court, I must answer the first issue posed by the appellant in the affirmative, i.e. that the trial Court was wrong when it entertained and or considered the Notice of Preliminary Objection filed by the Respondents, when no pleadings were filed as demanded by the rules of the Court and arrived at the decision that the case of the appellant was statute barred, when the Respondents did not plead the statute of limitations sought to be relied upon as stipulated by the provisions of the Kwara State High Court (Civil Procedure) Rules, 2004. Hence the judgment delivered by the lower Court, by this singular defect is vitiated, and hereby set aside. The consequence of the setting aside of the decision of the lower Court is that, the need to examine the second issue thrown up becomes academic, and unnecessary, more so when the same issue may likely generate arguments before the lower Court. The interest of justice dictates that the case be sent back to the Chief Judge of Kwara State, for reassignment of the case to a judge other than A. S. Oyinloye J. for the trial of the case denovo.
Parties are to bear their respective costs.
CHIDI NWAOMA UWA, J.C.A.: I read in advance a draft copy of the judgment just delivered by my learned brother HAMMA AKAWU BARKA, JCA.
I am at one with his sound reasoning and conclusion arrived at in setting aside the judgment of the trial Court and the order remitting the case back to the Chief Judge of kwara State for assignment to another judge other than the trial judge for trial de novo.
I abide by the order made as to costs in the leading judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: I had read in advance the lead judgment delivered by my learned brother HAMMA AKAWU BARKA J.C.A and I agree with his reasoning and conclusion; accordingly, I also allow the appeal. I abide by all the consequential orders including cost as contained in the lead judgment.
Appearances

Chief R. O . Balogun, with him, S. B. Ajawo and E. O. Olaniyi –For Appellant

AND

H. A. Gegele DCL, with him, A. M. Bello (CSC), A. A. Daib {CSC}, A. B. Nuhu {ACSC}, O. T. David {SSC} and K. K. Aduagba {PSC}-For Respondents

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