L. A. UDEOGARANYA & ANOR. V. ALHAJI BUARI ADEYI
(2010)LCN/4065(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of November, 2010
CA/I/M.115/2003
RATIO
EFFECT OF A GROUND OF APPEAL FROM WHICH NO ISSUE FOR DETERMINATION IS FORMULATED FROM
No issues were formulated for grounds (ii) and (iv) of the Notice of Appeal. In my considered opinion, the said Grounds of Appear are redundant and are deemed abandoned. I discount them in consequence – see Odutola V. Kayode (1994) 2 NWLR (Pt.324) 1 at 20. Unity Bank PLC and Another v. Bouari (2008) 2 SCNJ 116 at 133; and West African Examination Council v. Adeyanju (2008) 4 SCNJ 167 at 182. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
PERSON: MEANING OF THE WORD “PERSON” WHEN USED IN LEGAL PRACTICE
It is beyond dispute that the word “person” when used in legal practice, such as in a legislation or statute connotes both a “natural person”, that is to say, a “human being” and an “artificial person” such as corporation sole or public bodies corporate or incorporates. See Royal Mail Steam packet Co. V. Braham (1877) 2 A.C. 381 at 386 (P.C.). So, too, in the Australian case of Leske V. S.A. Real Estate Investment Co. Ltd. (1930) 45 C.L.R. 22, the position was stated per Rich and Dixon, JJ. At page 25 as follows:- “The time has passed for supposing that the legislature would use the word ‘person’ only to signify a natural person in dealing with a class of business in which the utility of the proprietary has long been made manifest. Indeed, it may be said that in modern business, as elsewhere, few ‘persons’ remain natural”. (Underlining supplied for emphasis). There is also the definition of the same word “person” in Section 18 (1) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria 1990 as follows:- “Person” includes anybody of persons corporate or unincorporated”. Without, therefore seeking guidance from anywhere else, it seems to me plain that the definition of the word “person” in the legal sense under the Nigerian law is not limited to natural persons or human beings only as the appellant now vigorously appears to contend. It clearly admits and includes artificial persons such as a corporation sole, company or anybody of persons corporate or incorporate. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
LIBEL: WHAT GIVES RISE TO THE CAUSE OF ACTION IN AN ACTION FOR LIBEL
See Emiantor V. The Nigerian Army and Others (1999) 9 SCNJ 52 at 59. “In any case, in an action for libel, it is not the mere writing of libelous matter complained of that is important, it is the publication of the libel which in itself gives the cause of action, And by publication is meant the making known of the defamatory matter to some person other than the person of whom or about whom it is written, See Nsirim V. Nsirim (1990) 3 N.W.L.R. (Pt.138) 285, Hebdith V. Macilwaine & Ors. (1894) 2 Q.B. 54 at 61; Keefe V. Walsh (1903) 2 I.R, 706. This means that the date when the appellant became aware of the libel about him is not relevant for the purpose of computation of the period of limitation in this case. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
PERIOD OF LIMITATION: HOW IS THE PERIOD OF LIMITATION DETERMINED
see Egbe V. Adefarasin (supra) at page 20 thus: “How does one determine the period of limitation? The answer is simple – by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses. If the time on the Writ is beyond the period allowed by the Limitation Law then the action is statute barred. Chief Williams, S.A.N., was right in filing a motion to strike out the action in limine. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
COURTS’ JURISDICTION: CONDITIONS FOR THE EXERCISE OF JURISDICTION
…a specie of jurisdiction under two of the tripartite conditions for the exercise of jurisdiction by a court enunciated in the case of Madukolu and Another V. Nkemdilim (1962) 1 ALL N.L.R. 587 at 595: “Put briefly, a court is competent when; 2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and 3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” Eko, J.C.A., also, treated it aright, in my view, as an issue of the competence of the suit in the case of S.P.D.C.N. Ltd. v. Amadi (2010) 13 NWLR (Pt.1210) 82 at 119 thus: “My decision to proceed first with this issue of jurisdiction on the basis of limitation statute is premised on the clear statement of law in Egbe V. Adefarasin (1987) 1 NSCC 16… The effect of limitation is that the action is incompetent and must be struck out, see Texaco Panama Inc. V. S.P.D.C. (Nig) Ltd. (2002) FWLR (PT. 96) 579, (2002) 5 NWLR (PT.759) 209.” Thomas, J., held the same opinion in the early case of Obanor V. Ogbe (1958) WRNLR page 1 at page 2, after accepting a plea of time lapse under a similar enactment as follows: “I will therefore uphold the submission of crown counsel appealing for the defendant and strike off the suit as it is out of time. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
INCOMPETENT ACTION: EFFECT OF AN INCOMPETENT ACTION
It is trite that once an action is incompetent, it is bound to be struck out simpliciter. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
L. A. UDEOGARANYA & ANOR. – Appellant(s)
AND
ALHAJI BUARI ADEYI – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice Oyo State holden at Ibadan in suit No.1/958, refusing to uphold the preliminary objection of the appellants of time bar under the public officers (Protection) Act or Law against the suit of the respondent.
The notice of appeal contains five grounds of appeal. On 11.10.06, the appellants were granted leave of the court for the appeal to be heard on their brief of argument.
Shortly stated, the respondent sued the appellants for libel in the court below. The writ of summons was issued on 20.10.90. A statement of claim dated 15.10.90, followed it. The appellants filed a joint statement of defence dated 7.1.91, on 29.10.91, where they raised the plea of time bar in paragraph 43 thereof in these words:
“WHEREOF the Defendants state that the plaintiff is not entitled to the reliefs claimed and should be dismissed with substantial cost to the Defendants.
SPECIAL DEFENCE
The action is statute barred by virtue of the provisions of public officers protection Act Cap. 168, Laws of the federation, 1958 and in the alternative the Public Officers Protection Law Cap. 106 Laws Oyo State, 1978.”
A Motion on Notice with an Affidavit was moved by the Appellants in the court below in which they canvassed for the dismissal of the suit based on the special plea in paragraph 43 of the statement of defence (supra). The respondent resisted the preliminary objection on points of law. He conceded that the 1st appellant as the employee of the 2nd appellant was a public officer. As for the 2nd appellant, the respondent argued that she was not a public officer. The court below agreed with him and dismissed the Motion with costs.
Three issues were extracted from the five grounds of Appeal for determination on the Appeal. They are framed thus:
“3.01 Whether the second Appellant in this matter (i.e. Central Bank of Nigeria falls within persons covered by Section 2 (a) of Public Officers Protection Law Cap.106, Laws of Oyo State, 1978 or Cap.379, Laws of the Federation 1990.
3.02 Whether the Trial Judge was right in holding ‘that evidence must be concluded in determining the issue of the action being statute barred and to do substantial justice when issues were not joined as to when the cause of action arose and the action filed.
3.03 What is the proper order to be made on an action that is found to be statute barred?”
The first issue (supra) is tied to ground (i) of the Notice of Appeal; the second issue (supra) is derived from grounds (iii) and (iv) of the Notice of Appeal; while the third issue (supra) is related to ground (v) of the Notice of Appeal.
The grounds of Appeal without their particulars read:
GROUNDS OF APPEAL
(i) The Learned Trial Judge erred in law when he held that section 2 (a) of Public Officers Protection Law Cap 106, Laws of Oyo State, 1978 or Cap 168 Laws of the Federation 1958 is not applicable to Central Bank of Nigeria as it is not human being but a statutory corporation.
(ii) The Learned Trial Judge misdirected himself in law when he held as follows:
“With respect to the choice of who to sue, Learned Counsel for the Plaintiff was perfectly right in his submission when he said once a principal is disclosed an action can go straight against him whilst dropping the agent”
(iii) The Learned Trial Judge erred in Law when he held that evidence was necessary in determining limitation period in this suit when there was no dispute that the letter complained about was written 31st March, 1987 and the writ of summons was issued on 2nd October, 1990, a period of over three years.
(iv) The Learned Trial Judge misdirected himself in law when he held as follows: “The Supreme Court quite recently enjoined the lower court to conform to this rule of behavior when confronted with issues relating to statute of limitations “When court is faced with an objection on the ground of statute of limitation or that the action is statute barred, it is timorous to give up instantaneously instead of exploring the possibility of doing substantial justice between the parties” Nwadioso v. Shell Petroleum (1990) 5 NWLR (Part 150) 322. This court has no alternative but to follow this injunction”
(v) The Learned Trial Judge misdirected himself in law when he held as follows:
“If the plea of want of jurisdiction by the defendant had been successful, what consequential order can I make” I cannot dismiss the action as requested by the Defendant’s Counsel; I can only strike out the claims because the substantive case has not been tried on its merits. See Yalaju Amaye V. A.R.E.C. Ltd. (1990) 4 NWLR (Part 145) 422″.
No issues were formulated for grounds (ii) and (iv) of the Notice of Appeal. In my considered opinion, the said Grounds of Appear are redundant and are deemed abandoned. I discount them in consequence – see Odutola V. Kayode (1994) 2 NWLR (Pt.324) 1 at 20. Unity Bank PLC and Another v. Bouari (2008) 2 SCNJ 116 at 133; and West African Examination Council v. Adeyanju (2008) 4 SCNJ 167 at 182.
The issues formulated by the appellants are, in my view, apt. In respect of the first issue for determination, reference was made by the appellants to section 2 of the Public Officers (Protection) Law Cap.106 Laws of Oyo State, 1978, the Interpretation Law Cap.52, Laws of Oyo State, section 18 (1) of the Interpretation Act, Cap.192 Laws of the Federation, 1990 to submit that “person” mentioned in section 2 of the public officers (protection) Law or Act includes artificial and natural persons. Their learned counsel, Chief. Bolaji Ola, argued in the brief that the 2nd Appellant (central Bank of Nigeria) is an artificial person established by the central Bank of Nigeria Act, 1958, and is entitled to the protection offered by section 2 of the Public officers (protection) law read together with the cases of Iyamah V. National Electric power Authority (1982) C.A. 68 at 70-71; Ibrahim V. Judicial Service Committee (1998) 12 SCNJ 255. Offoboche V. Ogoja Local Government (2001) 7 S.C, (Pt.111) 107 at 118-120; and Adigun V. Ayinde (1993) NWLR (Pt.313) 516 at 533.
Appellants’ learned counsel cited some Court of Appeal decisions in the cases of Tafida V. Abubakar and Others (1992) 3 NWLR (Pt.230) 511; Uttih V. Egor and Another (1990) 5 NWLR (pt.153) 77; Onyejekwe v. Nigeria Police Council (1996) 7 NWLR (Pt.463) 704; and Alapiki V. Governor of Rivers State (1991) 8 NWLR (Pt.211) 757, which derived their efficacy from the supreme court case of Momoh V. Okewale and Another (1977) 6 S.C. 81 at 89, holding on the contrary that the Public officers (protection) Law or Act does not cover public bodies. It was submitted here that these string of cases were decided on the obiter dictum of Udoma, J.S.C., in Momoh (supra) in the course of the interpretation of the public Authorities protection Act 1893, which is poles apart from the public officers (protection) Law or Act.
Learned counsel for the appellants concluded his argument on the first issue that the court below should have treated the 2nd appellant as a public officer under section 2 of the public officers (protection) Law or Act, consequently its refusal to do so was wrong and contrary to the first set of cases led by the supreme court case of Ibraham (supra) where Iyamah (supra) from this court was approved.
The court below did not discuss the scope of section 2 (a) of the Public Officers (protection) Law or Act. It summarily dismissed the objection in these words:
“I am not persuaded by the arguments of the applicant’s counsel… the two cases cited by the applicants’ counsel were wrongly applied so not on all fours with the present case. For instance, the principal legislation with respect to the 2nd defendant is the Central Bank of Nigeria Act 1958 No.24 (as amended) from time to time. Section 3 of that Act states its position with respect to judicial process; i.e., it can sue and be sued. It does not enjoy the protection of the petition of Rights Act 1958 Cap 149. This is obvious. For the present application, the discussion of these legislations would rest as it is here as now. I will give a full scope at the end of the case if there is need for it. I am conscious of the fact that I should not decide the final issues at this interlocutory stage.”
The above quoted portion of the ruling of the court below is, with respects, puzzling: The petition of Rights Act was not agitated before it; I do not appreciate its relevance to the preliminary objection; section 3 of the central Bank Act was equally not in contention in the preliminary objection; deciding whether the 2nd appellant was a public officer within the meaning of section 2 (a) of the public officers (protection) Law or Act was the backbone of the preliminary dispute, which the court below felt was an issue to determine at the hearing of the substantive suit.
The cases of Egbe V. Adefarasin (supra) and Egbe V. Alhaji (supra) cited in argument before the court below deserved better treatment by the court below than the cavalier approach it gave to them in the above quoted ruling. The two cases discussed the import of limitation enactments, contrary to the perception of the court below as reflected in the above quoted portion of its ruling.
Be that as it may, the court below concluded its ruling by dismissing the plea in these words:
“In the final analysis, the objection taken by the 2nd defendant is misconceived, it lacks any merit whatsoever, and it is hereby dismissed with N50 costs to the plaintiff/respondent.”
The dismissal of the plea in the above stated wholesale manner carried with it the rejection of the contention of the appellants that the 2nd appellant is a “person” within the ambit of section 2 (a) of the public Officers (Protection) Law or Act.
The 2nd appellant was created by the central Bank of Nigeria (C.B.N) Act 1958 (as subsequently amended). She is, by virtue of her statutory creation, a statutory appendage of the Federal Government or its agency – see sections 3, 4, 10, 38 and 39 of the C.B.N. Act. Being a statutory body, the 2nd appellant is a “person” within the meaning of section 18 of the Interpretation Act, which was given extensive consideration by the Supreme Court in Ibrahim (supra) at pages 276 to 279:
“It is beyond dispute that the word “person” when used in legal practice, such as in a legislation or statute connotes both a “natural person”, that is to say, a “human being” and an “artificial person” such as corporation sole or public bodies corporate or incorporates. See Royal Mail Steam packet Co. V. Braham (1877) 2 A.C. 381 at 386 (P.C.). So, too, in the Australian case of Leske V. S.A. Real Estate Investment Co. Ltd. (1930) 45 C.L.R. 22, the position was stated per Rich and Dixon, JJ. At page 25 as follows:-
“The time has passed for supposing that the legislature would use the word ‘person’ only to signify a natural person in dealing with a class of business in which the utility of the proprietary has long been made manifest. Indeed, it may be said that in modern business, as elsewhere, few ‘persons’ remain natural”. (Underlining supplied for emphasis).
There is also the definition of the same word “person” in Section 18 (1) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria 1990 as follows:-
“Person” includes anybody of persons corporate or unincorporated”.
Without, therefore seeking guidance from anywhere else, it seems to me plain that the definition of the word “person” in the legal sense under the Nigerian law is not limited to natural persons or human beings only as the appellant now vigorously appears to contend. It clearly admits and includes artificial persons such as a corporation sole, company or anybody of persons corporate or incorporate.
In this connection, attention must also be drawn to Section 42 (b) of the, Interpretation Law of Northern Nigeria which is Section 14 (b) of the Interpretation Act, Cap. L92, Laws of the Federation of Nigeria 1990 wherein it is provided thus:-
“14 (b). Words in the singular include the plural and words in the plural include the singular.”
I have also referred to the definition of the word “person” under Section 3 of the Interpretation Law and Section 18 of the Interpretation Act respectively. This is defined to include anybody of persons corporate or unincorporated.
It is thus clear to me that the term “public officer” has by law been extended to include a “public department” and, therefore, an artificial person, a public office or a public body.”
See also Adigun (supra) at page 533 per Karibi – Whyte, J.S.C., and Dr. Offoboche (supra) at pages 489 to 490. Based on these binding decisions, I accept Chief Ola’s submission that the 2nd appellant – Central Bank of Nigeria – is a public officer (person) within the purview of section 2 (a) of the Public Officers (Protection) Act. The first issue is, accordingly, resolved in favour of the 2nd appellant.
I have used the expressions “the law” and “the Act” interchangeably and advisedly in respect of section 2 (a) the Public Officers (Protection) Law or Act (supra). Now that the status of the 2nd appellant has been determined, her position as one of the statutory bodies under the Federal Government makes her a Federal entity under the Public Officers (Protection) Act. The 1st appellant, her employee, is also a public officer under the Public Officers (Protection) Act. The learned counsel for the appellants appeared to have perceived the sharp dividing line between a Federal Public Officer governed by the Public Officers (Protection) Act and a state public officer controlled by the Public Officers (Protection) Law when he decided to raise the plea in the alternative using either the Law or the Act.
The court below did not appreciate the difference. It used the State Law to get rid of the preliminary objection. In my opinion, it was wrong. The “Law” cannot pass off for the “Act” – see Ibegbu and Another V. Lagos City Council Caretaker Committee and Or. (1974) N.M.L.R 315 at 317 as follows:
“In as much as the ruling the subject of this appeal is apparently based on the provisions of the Public Officers Protection Act – Cap 168 – Laws of the Federation of Nigeria – 1958, we are of the view that the learned judge was in error. This is so, because in Lagos State, the above federal statute is no longer in force; having been replaced by the Public Officers Protection Law – Cap 106 Laws of Western Nigeria – 1959 by virtue of the Lagos State (Applicable Laws) Edict No.2 of 1968 which came into force on 1st May, 1968.”
In other words, the Public Officers (protection) Law is intended to protect public officers in the State Government functionary or employment, while the thrust of the Public Officers (protection) Act is to protect public officers in the federal Government employment or engagement.
Arguments on the second issue for determination criticised part of the ruling of the court below that some evidence was required at the plenary stage of the case for it to decide whether, or not the plea was good. The cases of Aina V. The Trustees of the Nigerian Railway Corporation Pension Fund (1970) 1 ALL NLR 281; Egbe V. Adefarasin (1985) 1 NWLR (Pt.3) 549 at 591; Mills V. Renner (1940) 6 W.A.C.A. 44 at 45; Iyamah (supra); and the State V. Onagoruwa (1992) 2 NWLR (Pt. 221) 22 at 48, were cited against the stand of the court below that evidence was needed at the substantive hearing of the suit to decide the question whether the 2nd appellant was protected by the Public officers (protection) Act in respect of the said suit.
The court below had this to say on the issue of taking some evidence to resolve the applicability of the plea of time bar:
“I am sure both counsel are still mindful of the caveat I gave that in this particular case, it might be prudent to plead it and take it with the substantive issues. On defendants/applicants insistence, the applications were accordingly taken and hereunder are the findings of the court.”
Evidence may be taken, in appropriate cases, to determine the plea in question, if the materials in the writ of summons and the statement of claim do not bear out the date the suit was filed and the date the cause of action arose. Or if the two dates are in dispute or in doubt, then evidence may be taken. Between these two dates lies the computation period for the purpose of ascertaining whether the plea holds or not. It is not, however, an inflexible rule that evidence must be taken in all cases to resolve the plea.
On the face of the writ of summons appears 2.10.90, as the date the writ was paid for and signed. It undoubtedly follows that the suit was commenced by the respondent in the court below on 2.10.90. The Statement of Claim pleaded the date of the cause of action as 31.3.1987. Paragraph 19 of the Statement of Claim is instructive on the issue:
“19. Plaintiff avers that it was during the exchange of letters between one Mr. Femi Agbaluaje – Solicitor to the plaintiff – on the one hand and the 2nd defendant on the other that the 1st defendant acting in the course of his employment as a servant of the 2nd defendant wrote and published the libel contained in a letter dated 31st March, 1987 concerning the plaintiff.”
There is also paragraph 34 (1) of the statement of claim to this effect:
“WHEREOF the plaintiff claims as per his writ of summons as follows against the defendants jointly and severally:-
Five Hundred Thousand Naira (N500,000) being general damages for libel contained in a letter dated 31st March, 1987 written and published by the 1st defendant Concerning the plaintiff, while the 1st defendant was acting in the course of his employment as the servant of the 2nd defendant which letter he addressed and delivered to Mr. Femi Agboluaje at Ibadan some time in 1987.
From the say-so of the respondent in paragraphs 19 and 34 (1) of the Statement of Claim (supra), the cause of action constituting the libel complained of accrued to him on 31,3.1987, when the letter conveying the alleged libel was published to a third party in the person of one Femi Agboluaje. See Emiantor V. The Nigerian Army and Others (1999) 9 SCNJ 52 at 59.
“In any case, in an action for libel, it is not the mere writing of libelous matter complained of that is important, it is the publication of the libel which in itself gives the cause of action, And by publication is meant the making known of the defamatory matter to some person other than the person of whom or about whom it is written, See Nsirim V. Nsirim (1990) 3 N.W.L.R. (Pt.138) 285, Hebdith V. Macilwaine & Ors. (1894) 2 Q.B. 54 at 61; Keefe V. Walsh (1903) 2 I.R, 706. This means that the date when the appellant became aware of the libel about him is not relevant for the purpose of computation of the period of limitation in this case.”
There was, in my opinion, no further need to look for evidence to establish the time the cause of action arose. The respondent had said it all in the above pieces of his pleadings that it crystallised on 31.3.1987.
In summation on the second issue for determination, the court below had the necessary materials in paragraphs 19 and 34 (1) of the statement of claim supplied by the respondent before it to deploy toward resolution of the preliminary objection.
It was, in the circumstance, unnecessary and dissipation of scarce judiciary resources as well as burdensome to the parties, for the court below to insist on embarking on a voyage of discovery of other facts viva-voce from the parties before resolving the preliminary objection
– see Egbe V. Adefarasin (supra) at page 20 thus:
“How does one determine the period of limitation? The answer is simple – by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses. If the time on the Writ is beyond the period allowed by the Limitation Law then the action is statute barred. Chief Williams, S.A.N., was right in filing a motion to strike out the action in limine.”
Between 31.3.1987, when the cause of action concretised by the publication of the alleged libelous letter to one Femi Agboluaje and, 2.10.90, when the suit was filed against the appellants for allegedly publishing the letter to Agboluaje was more than three years, well outside the three months allowed by section 2 (a) of the public officers (Protection) Act (supra) for the suit to be brought against the appellants as public officers. The court below should have upheld the plea of time bar. It did not, I hereby do what it should have done by upholding the plea in favour of the appellants under section 2 (a) of the public officers (Protection) Act (supra). The second issue is also resolved in favour of the appellants.
The third and last issue for determination is on the consequential order to make when the plea of time bar under the public officers (Protection) Act succeeds as it succeeded in this matter, I think the plea is on the competence of the action, a specie of jurisdiction under two of the tripartite conditions for the exercise of jurisdiction by a court enunciated in the case of Madukolu and Another V. Nkemdilim (1962) 1 ALL N.L.R. 587 at 595:
“Put briefly, a court is competent when;
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
Eko, J.C.A., also, treated it aright, in my view, as an issue of the competence of the suit in the case of S.P.D.C.N. Ltd. v. Amadi (2010) 13 NWLR (Pt.1210) 82 at 119 thus:
“My decision to proceed first with this issue of jurisdiction on the basis of limitation statute is premised on the clear statement of law in Egbe V. Adefarasin (1987) 1 NSCC 16… The effect of limitation is that the action is incompetent and must be struck out, see Texaco Panama Inc. V. S.P.D.C. (Nig) Ltd. (2002) FWLR (PT. 96) 579, (2002) 5 NWLR (PT.759) 209.”
Thomas, J., held the same opinion in the early case of Obanor V. Ogbe (1958) WRNLR page 1 at page 2, after accepting a plea of time lapse under a similar enactment as follows:
“I will therefore uphold the submission of crown counsel appealing for the defendant and strike off the suit as it is out of time.”
On further perusal of the appellants’ brief of argument, their learned counsel appeared to have conceded that an order striking out the suit was the appropriate one to make. Order 24 Rules 3 and 4 of the High Court (civil procedure) Rules, 1988, of Oyo State cited by the appellants learned counsel provides:
“3. If, in the opinion of the Court or a Judge the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court or Judge may thereupon dismiss the action or make such other order therein as may be just.
4. The Court or a Judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.” (Underlining supplied).
The above provisions, quite apart from giving the court below discretion in the matter, cannot suit an action that is declared incompetent. It is trite that once an action is incompetent, it is bound to be struck out simpliciter. A defendant shielded by the Public Officers (Protection) Act, is removed from the action. The removal leaves the action without the defendant. The action then becomes an empty shell, though its pleadings remain flawless. And in such situation, the appropriate order is not to dismiss the action under order 24 rules 3 and 4 of the Rules of the court below (supra), but to exercise the permissive or discretionary leverage in the said Rules of court to strike out the action. The last issue is settled against the appellants.
The appeal succeeds. The decision of the court below refusing to uphold the plea of time bar under section 2 (a) of the Public Officers (Protection) Act (supra) is hereby set aside. An order striking out the substantive suit No.1/958 filed by the respondent against the appellants before the High Court of Justice of Oyo State Holden at Ibadan is hereby entered in favour of the/appellants. Costs of N30,000 are awarded against the respondent in favour of the appellants.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the privilege of reading in draft the judgment of my learned brother, Ikyegh, JCA just delivered. He has ably considered and resolved the main issues in contention in this appeal. I agree entirely with his reasoning and conclusion. I also allow the appeal.
I abide by the consequential orders made in the lead judgment including the order as to costs.
SIDI DAUDA BAGE, J.C.A.: I have read before now the judgment just delivered by my learned brother, J. S. Ikyegh, J.C.A.
I entirely agree with the reasoning and the conclusion reached. The appeal succeeds and is allowed by me.
I abide by all the consequential orders made in the said lead judgment including the order on Costs.
Appearances
Chief Bolaji OlaFor Appellant
AND
For Respondent
