Goodwill Company Ltd. V. Calabar Cement Company Ltd. (In Liquidation) & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the decision of the Federal High Court, sitting in Calabar, Coram, Ajakaiye, J., in Suit No. FHC/CA/CS/66/2004 delivered on the 3/11/06, in which the trial Judge upheld the preliminary objection of 1st and 2nd respondents that the action was statute barred-and accordingly dismissed the suit.

The appellant company, as plaintiff, instituted proceedings against the 1st – 6th respondents, who were the defendants, before the trial court, on the 4/6/04 claiming at paragraph 50 of the statement of claim, which appears at page 12 of the record of appeal, as follows:

“(1) The sum of N285,000,000.00 (Two Hundred and Eighty-Five Million Naira) being fees for consultancy services and other charges rendered for the reactivation of the 1st defendant.

(2) 21% Central Bank interest rate from 10th day of December, 1997 until judgment, thereafter at the rate of 10% until the entire judgment sum is fully liquidated.”

Eventually, pleadings were filed, served and exchanged between the parties. The 1st and 2nd respondents in their statement of defence raised a preliminary point of law in paragraph 27 thereof, namely;

“………that the court lacks the jurisdiction to hear and determine this matter and that the action is statute barred.”

Arguments were taken on the preliminary point of law and in its ruling on 30/11/06, the trial court upheld the objection and the appellant’s case was dismissed.

Dissatisfied with the Ruling of the trial court, the appellant appealed to this court on two grounds which are subscribed in-its-notice and grounds of appeal filed on 13/2/07. The grounds of appeal, shorn of their particulars are as follows:

“1. The learned trial Judge erred in law when he upheld the preliminary objection of the 1st and 2nd respondents as to the court’s jurisdiction on the ground that the appellant’s claim is statute barred by virtue of S. 16 of the Limitation Law of the Laws of Cross River State, and consequently dismissed the-appellant’s suit in limine.

2. The learned trial Judge erred in law when he failed to evaluate all the evidence canvassed by the plaintiff/respondent’s counsel before coming to the conclusion that the action of the plaintiff is statute barred and as the action is no longer enforceable against the defendants.”

The appellant in its brief dated and filed on 11/6/07 formulated two issues for determination as follows:

“1. Whether the learned trial Judge was right in upholding the respondents’ preliminary objection as to the court’s jurisdiction on the ground that the appellant’s action was statute barred, taking into consideration the intervening negotiation between the appellant and the respondents, couple with the positive admission of the appellant’s claim by the respondents, as well as the relentless steps taken by the appellant to pursue its claim.

2. Whether the failure of the trial court to resolve all the relevant issues pertaining to the provisions of Company and Allied Matters Act, 1990 as amended and to make findings on the material issues or facts raised by the appellant’s counsel did not occasion a miscarriage of justice?”

The 1st and 2nd respondents in their brief dated 5/7/07 and filed the same day, raised a lone issue for determination, to wit;

“Whether the learned trial Judge was right in holding that by virtue of section 16 of the Limitation Law of Cross River State, the appellant’s claim is statute barred.”