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i
That the processes originating this suit, that is to say the particulars of claim and statement of claim be set aside on the grounds that even if all the facts alleged therein were true (which is not conceded) the plaintiff cannot maintain these proceedings because the cause of action is time-barred.
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ii
That this Suit be set aside on the grounds that the court lacks jurisdiction to adjudicate the merits of this case, the case not been (sic) one properly cognizable within S7. Of the Federal High Court Act.
Alternatively.
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iii
That these proceedings be stayed on the grounds that the subject- matter of dispute viz. Monies lodged in the 2nd defendant’s Bank in West Germany, is not within the jurisdiction land the appropriate and convenient Forum for the proper adjudication of this suit is West Germany.
That these proceedings be transfarred to the Lagos State High Court on the grounds that this Honourable Court lacks jurisdiction to adjudicate the merits of the plaintiffs claim by virtue of S7 of the Federal High Court Act.”
After taking arguments from learned counsel for the parties, the learned trial Judge, in a well considered ruling, found:
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i
On the issue of jurisdiction, I hold that this matter is one in respect of which this court is clothed with Admiralty jurisdiction under section 7(1) (d) of the Federal High Court Act 1973; the subject matter being one concerning disbursement in respect of ships – a matter concerning which a High Court in England will under section 1(1) (b) of the Administration of Justice Act (of England) 1956 assume Admiralty jurisdiction:
On the issue of whether this action is statute-barred, I find that notwithstanding that the cause of action fully arose in March 1978 following the dissolution of the contract between the parties and the taking of accounts, the delay of 81/2 years (to 3rd December 1986) before the action was instituted, is not fatal to the action since it is an Admiralty cause which section 7(3) of the Limitation Act 1966 exempts from the 6-year limitation period stipulated under section 7(1) of the Limitation Act 1966; and
The contract, between the plaintiff and the 1st defendant whereby the plaintiff was to disburse funds in Nigeria in Naira later to be reimbursed in West Germany in Dms, is, without the approval of the Minister of Finance, clearly in breach of the provisions of the Exchange Control Act 1962, particularly sections 3, 7 and 9 being founded on an illegality and for the unenforceable through any court in Nigeria.”
And adjudged –
“This application therefore succeeds only on the ground that it is unenforceable on account of illegality. If fails on the grounds of jurisdiction and time limitation.
The substantive action is therefore dismissed”.
Dissatisfied with parts of ruling, the parties appealed to the Court of Appeal. The plaintiff appealed against that part of it which declared the 1978 joint-venture agreement illegal and the defendant appealed against the part that held that the action was not statute-barred. The Court of Appeal allowed plaintiff’s appeal and ordered that “the case be retried before another Judge of the Federal High Court who should order the defendants to file a statement of defence and where necessary allow parties to adduce evidence with a view to interpreting the provisions of the Exchange Control Act, 1962 to the peculiar facts of this case in ascertaining whether the said law applies or not.” The court dismissed the defendant’s cross-appeal thus affirming the decision of the trial High Court that the action was not statute-barred.
The appellants being further dissatisfied appealed to the Supreme Court contending that by virtue of section 7 of the Limitation Act 1966, the respondent’s action was statute barred in that the respondent’s action an action in personam.
