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.
iii. The defendants/respondents also acknowledged the debt by a letter dated 29th September, 2000, Ref. Number OS/PRS/PN/153/Vol.III/164.
iv. The learned trial Judge raised the issue of limitation of action Suo motu and decided and or resolved it without calling on either the parties or their counsel to address him on same in breach of the appellant’s fundamental right to fair hearing.
v. The part-payment of 27/2/97 is an admission of the balance of the said debt therefore reactivating the cause of action in 1997, thereby recommencing the limitation period.
vi. The letter dated 29th September, 2000 ref. number OS/PRS/PN/153/VoI.lll/164 also renews the commencement date of the limitation period.
- The decision of the learned trial Judge is against the weight of evidence.”
Pursuant to the rules of this court, the parties filed and exchanged their respective briefs of argument. In the appellant’s brief the following issues are set down as calling for determination in this appeal, to wit:
“(i) Considering the totality of the evidence, whether lower court rightly struck out the suit without allowing counsel to address him on the issue of statutory limitation of action.
(ii) Whether or not the debt is statute barred.”
with issue No. (1) In the respondents’ brief. On issue No. (1), the appellant’s counsel submitted that it is trite law that when a Judge raises an issue on a point of law Suo motu in a case, he ought to call on counsel to both parties to address him on such issue before ruling on it.
For the respondents, it was argued that issue one bothers on the jurisdiction and competence of the lower court to adjudicate on the application before it. It was contended that the lower court has no jurisdiction to try a case that is statute barred.
I consider issue number one in both briefs to be very fundamental and germane to this case. Its resolution should determine this case one way or the other.
At page 20 lines 5 to 11 of the records, the learned trial Judge had this to say:
“From the exhibits and affidavit filed before the court, there is a grey area which both learned counsels (sic) did not address their minds to namely by exhibit ‘B’ the agreement dated 14/9/92. Notice of arbitration is 18/10/2000 almost 8 years after the accrual of right of action therefore outside the period of limitation, Cap. 64, Laws of Oyo State as applicable in Osun State.”
It is manifest from the above statement of the learned trial Judge that he raised the limitation law vis-a-vis the case before him Suo motu without giving the counsel to both parties the oppurunity to address him on it. This to my mind is wrong in law and it is in breach of the principle of fair hearing.
In the case of Hon. Emmanuel Oseloka Araka v. Ambrose Nwankwo Ejeagwu (2000) 12 SC (Pt. 1) page 99 at page 107; (2000) 15 NWLR (Pt. 692) at 700, Katsina-Alu, JSC said:-
“The court below raised the issue of abandonment of ground 2 suo motu without giving counsel for the parties an opportunity to be heard on the point. When an issue is not placed before an appellate court, it has no business whatsoever to deal with it. Also, on no account should a court of law raise a point suo motu no matter how clear it may appear to be and proceed to resolve it one way or the other without hearing the parties, Particularly, the party that may be adversely affected as a result of the point so raised. If it does so, it will be in breach of the parties’ right of fair hearing. In the instant case, the abandonment of ground 2 was not an issue before the court below. Infact the said ground 2 was the main thrust of the appeal. The Court of Appeal was therefore in grave error in striking out ground 2.”
The above statement of Katsina-Alu of the Supreme Court holds good for the case in hand. It is not in doubt that the question of whether or not the claim of the appellant was statute barred was not placed before the lower court. Since the lower court raised it suo motu, it is only fair that the – court should hear counsel to the parties on the matter. See also Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167; Oro v. Falade (1995) 5 NWLR CPt. 396) 385; Oje v. Babalola (1991) 4 NWLR CPt. 185) 267. It seems to me therefore that this appeal succeeds on issue number one alone. A consideration of issue number two in both briefs will amount to a barren exercise as it cannot change the conclusion I have reached above. The appeal is therefore allowed as it is meritorious. However, that is not all. The matter before the lower court was not completed because of the grave procedural error committed by it. The justice of this matter demands that the case should be remitted to the lower court for retrial before another Judge at the Oshogbo High Court.
Other Citations: (2004)LCN/1663(CA)