Elijah Adebiyi (Trading Under The Style Of Delock Association) & Ors V. National Institute Of Public Information & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court sitting in the Kaduna Judicial Division in Suit No FHC/KD/CS/56/2007 delivered by Honorable Justice A. M. Liman on the 16th of May, 2007. The Appellants, as plaintiffs, commenced this action under the Undefended List Procedure, with the leave of the Court, against the Respondents, as defendants, claiming for:

i. An order for the immediate payment in the sum of N622, 563.00 (Six Hundred and Twenty Two Thousand Five Hundred and Sixty Three Naira) only to the Plaintiffs, same being the total amount owed for the supplies and execution of projects in favour of the first Defendant, which amount has been long outstanding.

ii. Interest at the rate of 21% per annum on the said sum of N622, 563.00 (Six Hundred and Twenty Two Thousand Five Hundred and Sixty Three Naira) only, commencing from January 2000 (for the first and eighth Plaintiffs) and January 2003 (for the second to the seventh Plaintiffs) up to the date of Judgment, and thereafter interest at 10% per annum until the entire judgment debt is liquidated.

iii. Cost of this action.

The case of the Appellants in the affidavit in support of their case under the undefended list was that each of them was an independent contractor and that each of them at different times made supplies and executed various projects for the first Defendant such as repairs, replacements, printing jobs, amongst others and that the combined total cost of the services was N622, 563.00. It was their case that all the supplies and various projects executed were done at the request of the first Defendant as evidenced by eight Local Purchase Orders and one letter of request issued by the first Defendant in their favour and copies of the Local Purchase Orders and the letter were attached as a bunch and marked as Exhibit COC 1.

It was their case that after waiting for a long time for the first Defendant to settle the indebtedness and nothing was forthcoming, they caused their Solicitors to write a letter dated the 23rd of August, 2006 to the first Defendant demanding payment of the outstanding sum and a copy of the letter was attached as Exhibit COC 2.

It was their case that the first Defendant responded by a letter dated the 25th of August, 2006 acknowledging the indebtedness and pleading for an extension of time as it had “requested for funds to settle all this debt” and that the extension of time would “facilitate the payment without any legal redress in court.” The letter was attached as Exhibit COC 3. It was their case that the first Defendant still refused, failed and/or neglected to settle the indebtedness thereafter and that the Defendants had no defence to the matter.

Upon being served with the processes of the Appellants, the Respondents entered a conditional appearance and filed a notice of preliminary objection wherein they contended that the suit was statute barred and that the lower Court lacked jurisdiction to entertain it and prayed that the suit be struck out for lack of jurisdiction. The Respondents also filed an affidavit to show cause which they captioned as “counter affidavit” and wherein they admitted that the just Defendant did issue the Local Purchase Orders and letter, Exhibit COC 1, in favour of the Appellants and that there was indeed an exchange of the letters, Exhibits COC 2 and COC 3, between the Appellants and the first Defendant. It was their case that the Appellants did not supply or execute the projects specified in the Local Purchase Orders and letter and that the no single kobo was owed to the Appellants and that they had a valid defence to the action.

The lower Court took arguments on the notice of preliminary objection and in a judgment delivered on the 16th of May, 2007 held that the admission of liability by the Respondents by the letter of 25th of August, 2006 had the effect of resetting when time would commence to run for the purpose of limitation and that by the provision of section 2 (2) of the Public Officers Protection Act, the Appellants ought to have commenced this suit within three months thereafter, but that the Appellants did not commence the action until 13th of March, 2007, seven months after and that as such the action was statute barred and it was doomed. The lower Court dismissed the case of the Appellants. The Appellants were dissatisfied with the decision and they caused to be filed a notice of appeal dated the 11th of August, 2007 and containing two grounds of appeal against it.

In arguing the appeal, Counsel to the Appellants filed a brief of arguments dated the 24th of September, 2007 on the 17th of December 2007 and it consisted of seven pages. The Respondents did not file any brief of arguments and by a motion dated the 1st of July, 2010, the Appellants sought for an order of this Court to hear the appeal solely on their brief of arguments. The motion was granted on the 26th of February, 2013. At the hearing of the appeal on the 25th of June, 2013, Counsel to the Appellants relied on and adopted the brief of arguments.

In the brief of arguments, Counsel to the Appellants formulated one issue for determination and this was – whether or not the learned trial Judge was correct to have held that the Public Officers Protection Act could be invoked to regulate the time of an issue which is purely contractual in nature between the parties to the Appeal.

Counsel stated that there was no gainsaying that the relationship between the Appellants and the Respondents was contractual and he submitted that the law was settled by the Supreme Court in FGN v. Zebra Energy Ltd (2002) 18 NWLR (Pt 798) 162 that the Public Officers Protection Act was inapplicable to matters of contract. Counsel stated that the applicable limitation law to the matter was the Statute of Limitation 1623 which is the same as section 2 of the Limitation Act, Cap 522 Laws of the Federation, 1990 and that by this law the limitation period for actions predicated on contract is six years.

Counsel urged this Court to find that the lower Court misapplied the provisions of the Public Officers Protection Act to the facts of this case. Counsel submitted further that the facts deposed in the counter affidavit of the Respondents disclosed no defence on the merit and he implored this Court to exercise its powers under section 16 of the Court of Appeal Act to take over the proceedings in the matter as if the case was filed in this Court, as the court of first instance, and to examine the evidence and documents advanced by the parties and do justice in the matter.