Def-lam & Company Limited V. Osun State Government & Anorin the Court of Appeal of Nigeria (2004)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A.

This appeal stems from the decision of Yusuff J., of the Oshogbo High Court delivered on Wednesday the 30th day of May, 2001 in suit No. HOS/M.80/2000 in which the learned trial Judge struck out the application of the appellant who was the plaintiff at the court below. The application was struck out on the basis that the contract was statute barred. The ruling of the lower court is at pages 17 to 20 of the records.

The facts of this case are simple and straightforward. The appellant was employed by the respondents to carry out repairs of damaged School buildings at Ife North Local Government Area of Osun State. The contract for the repair of the School buildings was signed by the parties on 14th day of October, 1992 for a total sum of N1,984,558.00. See page 7 of the records. It would appear that the job was satisfactorily executed and the respondents thereafter made a part-payment of N945,375.00 in two installments, that is, N500,000 in 1992 and N445,375.00 on the 27th February, 1997. See paragraph 4 of the affidavit on page 11 of the records.

The 2nd respondent acknowledged the debt vide a letter dated 29th September, 2000. The appellant having tried unsuccessfully to recover the debt of N1,039,183.00 declared a dispute with the respondents. Counsel to the appellant notified the respondents (defendants at the court below) and requested them to appoint their own arbitrator, but the respondents refused to respond to the appellant. See paragraphs 6 and 7 of the affidavit in support of the appellant’s motion on page 11 of the records. The appellant then filed an application before the lower court as required by the Arbitration Laws of Osun State to compel the respondents to appoint their Arbitrator. See page 10 of the records.

The lower court heard counsel to the appellant on the application and the counsel to the respondents on the preliminary objection on 12th April, 2001. See pages 13 and 14 of the records.

Counsel to the appellant replied to the submission of the respondel1ts’ counsel on 24th April, 2002. See pages 14 and 15 of the records. Thereafter the learned trial Judge fixed ruling for 29th May, 2001. As borne by the records, the lower court on 30th May, 2001 overruled the preliminary objection and suo motu struck out the appellant’s motion on the ground that the action being one founded on simple contract is statute barred. See page 16 of the records.

Dissatisfied with the ruling of the lower court the appellant has now appealed to this court.

The notice of appeal contains two grounds. The grounds and their particulars read as follows:

“1. The learned trial Judge erred in law by striking out the action for being statute barred.

Particlliars of Errors of Law:

i. The contract, the subject-matter of the action was contracted on 14/10/92 for a slim of N1, 984, 558. 00.

ii. A part-payment of N945,375.00 was made by the defendants/respondents on two instalments to wit:

(a) N500,000.00 paid in 1992

(b) N445,375.00 paid on 27/2/97.