The plaintiff had, in a Port Harcourt High Court, claimed against the defendant the sum of N500, 000.00 being special and general damages for breach for preparation of the designs for the defendant’s eight story office block at Port Harcourt, Rivers State, pursuant to a contract said to have been awarded to the plaintiff by the defendant in 1978. On the date fixed for trial the defendant was absent and not represented. So a default judgment was entered against it, but this was later set aside by the Court of Appeal which remitted the case for trial before another judge. At that sage, pleadings had to be amended. The defendant, in its amended statement of defence then raised for the first time the issue that the appellant’s claim was statute barred. Based on the plaintiff’s amended statement of claim the learned trial Judge Okarra, J ruled that defendant had waived its right to rely upon a plea of limitation of the action. Without seeking the leave of court, the defendant appealed against the ruling.

The Appeal court ruled that the defendant’s motion would be taken first and duly granted the defendant’s application for extension of time to apply for leave to appeal, or leave to appeal, and an order deeming the notice of appeal already filed as duly filed. The court without giving any consideration to the plaintiff’s preliminary objection, dismissed it. The plaintiff then appealed to the Supreme Court against the Ruling.