British Airways Plc V. Xchief Funso Akinyosoye (1994)

LawGlobal-Hub Lead Judgment Report

KALGO, J .C.A.

This is an appeal from the ruling of Omotoso J. of the High Court of Lagos delivered on the 24th of August, 1990. The main issue in dispute and which this Court is called upon to determine in this appeal, is whether the action filed by the plaintiff/respondent is statute-barred having regard to the pleadings before the trial Court.

On the 7th of March, 1990, the plaintiff/respondent (hereinafter referred to as “the respondent”) filed a writ of summons claiming from the defendant/appellant (hereinafter referred to as “the appellant”):

“the sum of $232, 589 (two hundred and thirty two thousand, five hundred and eighty-nine U.S. Dollars) or its Naira equivalent at the rate of exchange at the date of judgment, being 5% of the amounts transferred, and interest on the same at the rate of 15% per annum from 24th February, 1982 to date of judgment, and subsequently, at the rate of 5% per annum until judgment debt, interest and costs have been fully liquidated.”

The respondent subsequently filed a Statement of claim which was dated 5th March 1990 (See pp. 4-9 of record of appeal). On the 22nd of May, 1990, the appellant filed a Statement of Defence to the action as contained on p 13 of the record. On the same day, the appellant filed a motion on notice praying the trial Court to “dismiss the action herein on the ground that the plaintiff’s action is barred by section 8(1)(a) of the Limitation Law Cap. 70 Laws of Lagos State of Nigeria, 1973.” The respondent filed a counter-affidavit of 12 paragraphs sworn to by Solomon Sofunmade on the 11th of June, 1990.

The learned trial judge heard the application and in a considered ruling delivered on the 24th of August, 1990, concluded on p.48 of the record thus;-

“Until evidence is led and the case unfolds, it will be impossible for the court to decide whether or not the case of the plaintiff falls within the exception to the general rule that negotiations do not extend the limitation period on the facts presented by the plaintiff. It will be premature at this stage to rule that this action is statute barred, the contents of the letters pleaded and evidence on the negotiations of the parties are vital to the consideration of the issue as to whether or not the action is statute barred. The long age procedure of interrogation and/or Discovery of Documents are open to the Defendants. The Application is premature and it is accordingly dismissed.”

.The appellant was dissatisfied with this ruling and on the 12th October, 1990, having obtained leave of this Court of Appeal, filed a Notice of Appeal against the said ruling on one ground of appeal which without particulars reads as follows:”

The learned trial Judge erred in law in failing to dismiss the plaintiff’s claim and in concluding that it was necessary to lead evidence at trial to determine whether the plaintiff’s action is Statute barred having regard to the state of the pleadings and in particular the plaintiff’s Statement of Claim.”

The parties to this appeal filed their briefs of argument in this court. The appellant formulated, in his brief, the following issues to be determined this appeal:

“i) Whether having regard to the indorsement on writ of summons, the Statement of Claim and Statement of Defence, the suit filed by the respondent ought not to have been dismissed “in limine” on the grounds stated in the appellant’s motion to dismiss, viz the action is statute barred.

(ii) Whether the learned trial judge was correct in ruling that the appellant’s application to dismiss could only be considered in the light of the evidence to be adduced in supporting the respondent’s claim.”

The respondent in his brief submitted that only one issue arises for determination in this appeal and it is this:-

“Whether or not the action, having regard to the facts and law is statute-barred.”