Akpabuyo Local Government Council V. D’tito Company (Nig) Ltd (2016)

LawGlobal-Hub Lead Judgment Report

CHIOMA EGONDU NWOSU-IHEME, J.C.A.

 The Respondent as Claimant at the trial Court, commenced this suit by a writ of summons dated and filed on the 7/2/2013.

By a motion ex-parte filed alongside the writ praying the Court to place the suit under the undefended list, the suit was placed on the undefended list on the 11th day of February, 2013. The Appellant was served with the originating process as well as the order placing the suit on the undefended list.

On the 27th of March, 2013, S. M. ANJO, J., of the Calabar Division of the Cross River State High Court entered judgment for the Respondent as prayed. This appeal is predicated on the said judgment.

The Appellant distilled three issues for determination thus:
“(a) Whether the Learned trial Judge was right when he entered judgment on the 27th March, 2013 in favour of the Respondent herein against the Appellant, the action leading to this Appeal was prima facie incompetent,
(b) Whether having regard to Clause 5 of the Agreement referred to as Exhibit 2, attached to the affidavit of D’tito Eze-David and the provisions of Order 10

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Rules 1, 2 and 6 of the Cross River State High Court (Civil Procedure) Rule 2008, the lower Court was right in entertaining the suit leading to this Appeal and entering judgment on 27th March, 2013 in favour of the Respondent herein against the Appellant in this Appeal.
(c) Whether the Learned trial Judge was right in awarding the cost of N100,000.00 (One Hundred Thousand Naira) only in favour of the Respondent herein against the Appellant in this Appeal in its judgment on the 27th March, 2013.

The Respondent on the other hand distilled five issues for determination almost similar to the issues distilled by the Appellant, but couched differently.
“(1) Whether considering the facts of this case, the Respondent’s suit was incompetent by the provisions of the statute of limitation.
(2) Whether considering the Respondent dispositions at paragraphs 9 and 10 and Exhibits 6, 7a and 7b the Arbitration Provisions in the contract was not satisfied by both parties.
(3) Whether considering the facts of this case, the improper description of the Appellant occasioned a miscarriage of justice.
(4) Whether the Provisions of Order 10 Rule 1,

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2 and 6 of the Cross River State Civil Procedure Rules was not observed and whether that is fatal to the Respondent’s case.
(5) Whether the Appellant’s appeal is not incompetent for non compliance with the Provisions of Section 10(1) of the Legal Practitioners Act, 2010.”

Both counsel E. O. E. Ekong Esq for the Appellant and Sam Eboh Esq for the Respondent made submissions in their respective briefs in line with the issues they raised.

I will not dwell on all the issues raised by counsel in their briefs. Rather, I will deal with the first issue as distilled by counsel for the Appellant which issue deals with the suit at the trial Court being statute barred and therefore borders on the jurisdiction of the trial Court to entertain the suit. A determination of this first issue as distilled by the Appellant will determine whether or not there is need to go into the other issues. If indeed the suit is statute barred, then it becomes unnecessary to go into the other issues.

?Exhibit 2 attached to the Affidavit of the Respondent D’tito Eze-David sworn to on 7th February, 2013 is the Agreement between the Appellant and the Respondent in this Appeal.

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