Hyd Road & Others Tech Limited & Anor V. Abia State Government & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A.(Delivering the Leading Judgment)

This Appeal questions the Ruling delivered by the Honourable Justice Obisike Oji sitting then at the Umuahia Division of the Abia State High Court of Justice which Ruling was delivered on the 15th day of November,2006, dismissing the Suit of the Plaintiffs (now Appellants) for being statute barred and un-maintainable.

It would be recalled that the Appellants in their Writ of Summons dated 14th day of April, 2005 and the Particulars of Claim attached thereto dated and filed on the 22nd April, 2005, sought for the following Reliefs against the Respondents thus:-

(a) The sum of US$16,828, 215. 46 (Sixteen Million Eight Hundred and Twenty-Eight Thousand Two Hundred and Fifteen Dollars and Forty-Six Cents) being the amount due to the Plaintiffs from the Defendants for services rendered to the Defendants by the Plaintiffs which debt was acknowledged by the Defendants in writing on the 13th May, 1999 but which the Defendants has neglected to pay despite repeated demands.

(b) An order of ten (10%) percent interest rate payment on the said sum by the Defendants from the date of Judgment until the total sum of is liquidated.”

By a motion on Notice dated and filed on the 17th day of May, 2005, the Plaintiffs/Appellants sought for an order that the suit be placed on the “Undefended List”.

The Motion was supported by a an Affidavit of ten Paragraphs deposed to by Rev. Hyde Onuaguluchi, a Director of the 1st and 2nd Plaintiffs/Appellants stating amongst other facts and in paragraph 9 thereof that he believed that the Defendants did not have any defence in law to the payment of the debt. It is not clear from the Records whether the learned trial Judge ruled on the Motion.

However, from the facts as stated in the Appellants’ Brief of Argument (see page 1 thereof), the learned trial Judge was said to have ordered for parties to file their pleadings in spite of the fact that the Defendants/Respondents did not file their Notice of Intention To Defend nor attend the Court.

Pleadings were duly exchanged subsequently after a Memorandum of Conditional Appearance by the Defendants/Respondents and Notices of Motion for extension of time were filed by the respective learned Counsel for the parties. It is pertinent note that in paragraph 7 of the Defendants/Respondents’ Statement of Defence, the Defendants pleaded thus:-

“7. The Defendants shall urge this Honourable Court pursuant to Order 14 Rules 2 & 3 to set down the points of law raised in Paragraph 6 above for hearing and to dismiss this suit in limine.”

Paragraph 6 of the said Statement of Defence averred as follows:-

“6. The Defendants shall further contend at the hearing that this suit is incompetent on the following grounds:

(i) The subject-matter of this suit is Statute Barred by virtue of

Sections 18 & 42 of the Limitation Law CAP.24, LABSN 1991 -2000.