Breach of Contract: Appeal Court Dismmises Firm’s Preliminary Objection
The Court of Appeal, Lagos Division, has dismissed Elegushi Property Investment’s appeal against the ruling of Justice Deborah Oluwayemi of the High Court of Lagos State, which refused to strike out a suit instituted against the firm over alleged breach of contract.
In its judgment, the appellate court held that the appeal lacked merit and deserved dismissal.
Justice Monica Dongban-Mensem (who presided) delivered the lead judgment, which was aligned with the other members of the panel, namely Justice James Abundaga and Justice Abubakar Talba.
The appellant at the lower court filed a Notice of Preliminary Objection dated December 22, 2014, seeking the striking out of the suit instituted by Subulade Properties Limited (claimant/first respondent) on the grounds that section 8(1)(a) of the Limitation Law of Lagos State, Cap L67, Laws of Lagos State, 2003 provides that the limitation period for the enforcement of a simple contract is six years.
The appellant also submitted that the lower court lacked jurisdiction to hear the matter, contending that the statement of claim is defective because it is signed by an unknown person, giving it the effect of an unsigned court process.
In response to the notice of preliminary objection, the claimant/first respondent filed a counter-affidavit and a written address. After hearing both sides’ arguments, the court delivered its ruling and struck out the appellant’s notice of preliminary objection.
Dissatisfied with the decision of the trial court, the appellant, through its lawyer, Dr. Muiz Banire (SAN), filed a notice of appeal and urged the court to determine whether the appellant’s notice of preliminary objection dated December 22, 2014, constitutes a demurrer and whether the learned trial Judge is permitted by law to look at any other court process aside from the writ of summons and statement of claim to ascertain the signature of the claimant’s pleadings.
The appellant also prayed the court to determine whether the case was caught by the Limitation Law of Lagos State, Cap L67, Laws of Lagos State, 2003.
Resolving the issues, the appellate court, in its lead judgement delivered by Justice Dongban-Mensem, held, “From the records and briefs of counsel, it was not in dispute that the cause of action arose in 2004 and the first respondent instituted an action in the same year 2004 which remained pending until it was struck out in 2014.
“The action which generated this appeal was filed on 21st November 2014. On the authority of Sifax Nig. Ltd. V. Migfo Nig. Ltd Supra, I agree with the learned counsel to the first respondent that time freezes for the purpose of limitation law when an action, though subsequently withdrawn, is instituted in court.”
He added, “In light of the facts before the court, the suit has been before the court since 2004 till 2014, when it was struck out. In the contemplation of the law, the limitation of time has frozen from the period the matter is pending in court and the 1st Respondent in this case, having filed this matter in the same year 2014 it was struck out, was not caught up by the limitation in section 8 (1)(a) of the Limitation Law of Lagos State, 2003.
“The preliminary objection raised by the Appellant at the trial Court is unmeritorious. I hereby resolve issues 2,3 and 4 in favour of the first respondent.”
