ENERGY MARINE AND INDUSTRIAL LTD. V. MINISTER OF THE FEDERAL CAPITAL TERRITORY & ANOR
(2010)LCN/4071(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of November, 2010
CA/A/68/09
RATIO
STATUTE OF LIMITATION: CONSEQUENCE OF COMMENCING A PROCEEDING AFTER THE TIME PRESCRIBED BY A STATUTE FOR COMMENCING SUCH HAD ELAPSED
The General Principle of law is that where a statute provides for the institution of an action within a prescribed period, the proceedings shall not be brought after the time prescribed by such statute. Any action that is commenced after the prescribed period is statute-barred. See Ibrahim v. JSC (1998) 14 NWLR part 584 page 1. PER JIMI OLUKAYODE BADA, J.C.A
CONTRACT: CONDITIONS FOR A VALID CONTRACT
It is trite that for a contract to be valid there must be an offer, acceptance, consideration, intention to create legal relationship and capacity to contract. See the following cases:- – Odua Investment Co. Ltd vs. Akinyemi (2002) FWLR Part 84 Page 172 at 188; – Okubule vs. Oyegbola (1990) 4 NWLR Part 147 Page 723: – P.T.I. v. Uwamu (2001) FWLR Part 70 Page 1567 or {2001} 5 NWLR Part 705 Page 112 at 122. PER JIMI OLUKAYODE BADA, J.C.A
INTERPRETATION OF STATUTE: EXCEPTIONS TO THE RULE UNDER SECTION 2(A) OF THE PUBLIC OFFICERS PROTECTION ACT THAT ACTIONS AGAINST PUBLIC OFFICERS CAN NOT BE COMMENCED AFTER 3 MONTHS OF THE ACT, NEGLECT OR DEFAULT COMPLAINED OF BY AN AGGRIEVED PLAINTIFF
Even though Section 2(a) of the Public Officers Protection Act stipulates that actions against Public Officers ought to be instituted within 3 months of the act, neglect or default complained of by an aggrieved Plaintiff, but there are some exceptions to that general position of law, for example the law is not applicable in cases of recovery of land, breaches of contract and claims for work and labour done. The above view is fortified by the decision of the Supreme Court in:- – Nigerian Ports Authority v. Constuzoni Generali Farsura Cogefar SPA & Another (1974) 1 All NLR Part 2 Page 463 Or (1974) All NLR Page 945 at 957 where IBEKWE JSC stated as follows:- “We shall now deal with the other point which to our mind, does not seem to be well-settled, namely whether the land of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether Section 97 of the Ports Act applies to cases of contract. We think that the answer to this question must be in negative. We agree that the Section applies to everything done or omitted or neglected to be done under the powers granted by the Act, but we are not prepared to give to the Section the stress which it does not possess. We take the view that the Section does not apply to cases of contract. The Learned Chief Justice, in deciding this point, made reference to the case of. Salako vs. L.E.D.B. and Another 20 NLR Page 169 where De Commarmond S. P. J. as he then was, construed the Provisions of Section 2 of the Public Officers Protection Ordinance which is almost identical with Section 97 of the Ports Act, and thereafter stated the law as follows:- “I am of the opinion that Section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done etc.” “We too are of the opinion that De Commarmond S.P.J. has quite rightly stated the law in the passage of his Judgment cited above. It seems to us that an enactment of this kind i.e. Section 97 of the Ports Act is not intended by the legislature to apply to specific contracts.” See also the following cases:- – Osun State Government vs. Danlami Nigeria Ltd (Supra): – Okeke vs. Baba (Supra): – F.G.N. v. Zebra Energy Ltd (2002) 18 NWLR Part 798 Page 162: Consequent upon the foregoing it is my view that the Provisions of Section 2(a) of the Public Officers Protection Act which prescribed 3 months within which to institute an action against Public Officers is not applicable to this case as the said Provision of law is not applicable to breach of contract cases as in the instant case. PER JIMI OLUKAYODE BADA, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
ENERGY MARINE AND INDUSTRIAL LTD. Appellant(s)
AND
(1) MINISTER OF THE FEDERAL CAPITAL TERRITORY
(2) FEDERAL CAPITAL DEVELOPMENT AUTHORITY Respondent(s)
JIMI OLUKAYODE BADA, J.C.A (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/198/07 delivered on the 23rd day of July 2008.
The Appellant as Plaintiff by an action commenced at the lower Court claimed against Respondents the following reliefs:-
“(i) A declaration that the demolition of the Plaintiff’s property at Plot 49, Aminu Kano Crescent, Maitama District, Abuja by the Defendants herein and allocating same to the 3rd party in spite of approval given to the Plaintiff prior to construction is unjust, arbitrary, high-handed, oppressive, wrongful and amounts to breach of contract between the Plaintiff and the Defendants having regard to the terms of allocation of the said Plot in the letter of offer dated 22nd February 2001 from the Defendants to the Plaintiff herein.
(ii) An Order directing the Defendants herein to pay the Plaintiff a total sum of (=N=45,000,000.00) Forty-Five Million Naira only compensation being the value of the Plaintiff’s property as at 25th May 2005 before demolition as contained in the valuation certificate carried out in this regard.
(iii) Exemplary damages in the sum of =N=20 Million against the Defendants for reckless manner, oppressive, arbitrary and untold hardships caused the Plaintiff as a result of demolition of its property after given (sic) approval for the construction.
(iv) Cost of this action assessed at =N=5 Million.”
In response to the suit instituted against the 1st and 2nd Respondents, they filed a Preliminary Objection against the Suit on the ground inter-alia that same is statute barred having regard to the provisions of the Public Officers Protection Act which prescribed 3 months period for institution of action against Public Officers.
In a considered Ruling, the Learned Trial Judge upheld the Preliminary Objection and dismissed the Plaintiff/Appellant’s case on the ground that same was statute barred.
The Appellant being dissatisfied with the said Ruling of the lower Court now appealed to this Court.
The Learned Counsel for the Appellant formulated a sole issue for determination set out as follows:-
“Having regard to the fact of this case, whether the provision of section 2(a) of Public Officers Protection Act is applicable to warrant dismissal of the Plaintiff/Appellant’s case.”
On the other hand, Learned Counsel for the 1st and 2nd Respondents adopted the sole issue formulated by the Appellant.
At the hearing Learned Counsel for the Appellant adopted and relied on his brief of argument in urging the Court to allow the Appeal.
The Learned Counsel for the 1st and 2nd Respondents also adopted and relied upon the Respondent’s brief of argument in urging the Court to dismiss the Appeal.
The Learned Counsel for the Appellant referred to the provision of Section 2(a) of the Public Officers Protection Act Cap 41, Laws of the Federation of Nigeria 2004 and he submitted that, that is a general position of the law of which there are several exceptions. He referred to recovery of land, breach of contract and claim for work and labour done etc. as examples of such exceptions.
He referred to the following cases:-
– Osun State Government vs. Danlami Nig. Ltd. (2007) All FWLR Part 305 Page 436 at 402 or (2007) 9 NWLR Part 1038 Page 66 at 83-84:
– Okeke vs. Baba (2000) 3 NWLR Part 650 at Page 653.
He also referred to the Statement of Claim which he said showed that a valid contract was established between the parties.
He submitted further that reliance by the lower Court on the case of:-
– Hon. Otiki & 1 other vs. Alhaji Momoh Bajehson (unreported decision of this Court in Suit No. CA/A/90/2000 delivered on 15/7/2005) is a gross violation and non-observance of the admonition of OPUTA JSC in the case of:-
– Okafor vs. Nnaife (1987) 2 NSCC Page 1194 at 1198 where he opined thus:-
“Justice and fairness demand much more that the ratio of any case should not be pulled in by the hair of the head and made willy nilly to apply to cases where the surrounding circumstances are different.”
The Learned Counsel for the Appellant also submitted that the lower Court should have relied on the case of:-
– Osun State Government vs. Danlami (Supra) cited before the Court. He also relied on the case of:-
– F.G.N. vs. Zebra Energy Ltd. (2002) 18 NWLR Part 798 Page 162 at 196 – 197.
He finally urged this Court to resolve the issue in this appeal in favour of the Appellant.
Learned Counsel for the 1st and 2nd Respondents on the other hand submitted that the 1st and 2nd Respondents merely exercised the powers conferred on them by:-
– Section 297 (2) of the 1999 Constitution:
– Section 5 (1) and 52 of the Land Use Act and
– Section 1 (3), (4) and (18) of the FCT Act by performing the acts giving rise to this Suit.
She submitted further that any action as contained in Section 2(a) Public Officers Protection Act, is one arising out of any act done in pursuance or execution of any Act or law or of any public duty undertaken by the Defendants/Respondents or its staff.
She relied on the following cases:-
– Umukoro vs. NPA (1997) 4 NWLR Part 502 Page 656:
– Oderiran vs. NPA (2004) 7 NWLR Part 872 Page 230 at 237:
– NPA PLC vs. Lotus Plastics Ltd. (2005) 19 NWLR Part 959 Page 158:
– Ambode vs. Ministry of Foreign Affairs (2004) 14 NWLR Part 894 506 at 523:
– Captain Hon. Otiki & 1 Other v. Alh. Momoh Bajehson (Supra).
She submitted further that the cases relied upon by the Appellant are not relevant. And also that once it is established that the subject matter of a Suit arose out of the exercise by the Defendant of a Public duty or enactment, the Public Officers Protection Act shall apply and the issue of whether or not the Suit is for recovery of land, contract or revocation becomes otiose.
She relied on the following cases:-
– Chigbu vs. Tonimas Nig. Ltd (2006) 9 NWLR Part 984 Page 89:
– Ekeogu vs. Aliri (1990) 1 NWLR Part 126 Page 345 at 353.
She finally urged that this appeal be dismissed.
A convenient starting point in the evaluation of this case is to have a careful examination of the Provisions of Section 2(a) of the Public Officers Protection Act Cap 41, Laws of the Federation of Nigeria 2004 vis-a -vis the decided cases.
The said Section provides thus:-
”(2) Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance of execution or intended execution of any Act or Law or of any Public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, Duty or Authority, the following Provisions shall have effect:-
(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of continuance of damage or injury, within three months next after the ceasing thereto.”
The Provision of this law is to the effect that actions against Public Officers ought to be instituted within 3 months of the act, neglect or default complained of by the aggrieved Plaintiff. The General Principle of law is that where a statute provides for the institution of an action within a prescribed period, the proceedings shall not be brought after the time prescribed by such statute. Any action that is commenced after the prescribed period is statute-barred. See Ibrahim v. JSC (1998) 14 NWLR part 584 page 1.The Appellant’s Counsel in his submission stated that Section 2(a) of the Public Officers Protection Act does not apply in cases of breach of contract. He pointed out that this action was for breach of contract. On the other hand, it was contended on behalf of 1st and 2nd Respondents by their Counsel that this action is caught by Section 2(a) of the Public Officers Protection Act.
The pertinent question at this juncture is – What is the nature of the Plaintiff/Appellant’s action before the lower Court?
In order to answer the question, it would be necessary to read some paragraphs of the Statement of Claim. In this connection paragraphs 5 – 9, and 19(1) are pertinent. It is set out as follows:-
“(5) In response to paragraph 4 supra, Defendants therein through their Letter of Offer dated 22nd February, 2001 allocated Plot 49 in Aminu Kano Crescent, Maitama Abuja to the Plaintiff. The said Letter of Offer dated 22nd February 2001 is hereby pleaded.
(6) In consonance with the terms of the said Letter of Offer of 22nd February 2001 (Though received sometimes in April 2002) Plaintiff therein accepted the offer in writing vide its letter of 12th April 2002. The said letter of 12th April 2002 is equally pleaded and notice is given to the Defendants to produce original copy of same.
(7) Further to the foregoing paragraphs, Plaintiff states that it equally paid the sum of =N=50,000.00 (Fifty-Thousand Naira only) to the 2nd Defendant herein as specified in paragraph 9 of the Letter of Offer granted it. The official receipt issued in this regard is equally pleaded and notice is given to the Defendants to produce the duplicate copy of same from its records.
(8) Plaintiff avers further that it equally paid the sum of =N=5,000.00 (Five Thousand Naira) for prototype design to the Development Control Division of the 2nd Defendant herein. The official receipt issued in this regard is equally pleaded and notice is given to the Defendants to produce the Duplicate copy of same.
(9) Plaintiff states that after its compliance with the conditions stipulated in the Letter of Offer particularly after furnishing the required consideration by payment of all the fees, it thereafter commenced construction at Plot 49 in accordance with the specified prototype design provided by the Development Control Division of the 2nd Defendant herein.
(19) Whereof the Plaintiff claims against the Defendants jointly and severally as follows:-
(i) A declaration that the demolition of the Plaintiff’s property at Plot 49 Aminu Kano Crescent, Maitama District, Abuja by the Defendants herein and allocating same to the 3rd party inspite of approval given to the Plaintiff prior to construction is unjust, arbitrary, highhanded, oppressive, wrongful and amounts to breach of contract between the Plaintiff and the Defendants having regard to the terms of allocation of the said Plot in Letter of Offer dated 22nd February 2001 from the Defendants to the Plaintiff herein.”
A careful reading of the paragraphs of the Statement of Claim set out above would show that-
(i) Paragraph 5 referred to the Offer Letter dated 22/2/2001;
(ii) Paragraph 6 referred to Acceptance Letter dated 12th April 2002;
(iii) Paragraphs 7 and 8 referred to the consideration furnished by the Plaintiff in the sum of =N=50,000.00 and =N=5,000.00 respectively;
(iv) Paragraph 9 referred to the conditions and terms contained in the Offer Letter to establish the parties intention to create legal relations.
It is my view that the basic ingredients of a valid contract have been established in this case by the Plaintiff’s Statement of Claim. In particular by paragraph 19(i) the Plaintiff specifically referred to breach of contract.
It is trite that for a contract to be valid there must be an offer, acceptance, consideration, intention to create legal relationship and capacity to contract.
See the following cases:-
– Odua Investment Co. Ltd vs. Akinyemi (2002) FWLR Part 84 Page 172 at 188;
– Okubule vs. Oyegbola (1990) 4 NWLR Part 147 Page 723:
– P.T.I. v. Uwamu (2001) FWLR Part 70 Page 1567 or {2001} 5 NWLR Part 705 Page 112 at 122.
The question to be answered in this appeal is whether the Provisions of Section 2(a) of the Public Officers Protection Act is applicable to warrant dismissal of the Plaintiff/Appellant’s case.
Even though Section 2(a) of the Public Officers Protection Act stipulates that actions against Public Officers ought to be instituted within 3 months of the act, neglect or default complained of by an aggrieved Plaintiff, but there are some exceptions to that general position of law, for example the law is not applicable in cases of recovery of land, breaches of contract and claims for work and labour done.
The above view is fortified by the decision of the Supreme Court in:-
– Nigerian Ports Authority v. Constuzoni Generali Farsura Cogefar SPA & Another (1974) 1 All NLR Part 2 Page 463 Or (1974) All NLR Page 945 at 957 where IBEKWE JSC stated as follows:-
“We shall now deal with the other point which to our mind, does not seem to be well-settled, namely whether the land of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether Section 97 of the Ports Act applies to cases of contract. We think that the answer to this question must be in negative. We agree that the Section applies to everything done or omitted or neglected to be done under the powers granted by the Act, but we are not prepared to give to the Section the stress which it does not possess. We take the view that the Section does not apply to cases of contract. The Learned Chief Justice, in deciding this point, made reference to the case of.
Salako vs. L.E.D.B. and Another 20 NLR Page 169 where De Commarmond S. P. J. as he then was, construed the Provisions of Section 2 of the Public Officers Protection Ordinance which is almost identical with Section 97 of the Ports Act, and thereafter stated the law as follows:-
“I am of the opinion that Section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done etc.”
“We too are of the opinion that De Commarmond S.P.J. has quite rightly stated the law in the passage of his Judgment cited above. It seems to us that an enactment of this kind i.e. Section 97 of the Ports Act is not intended by the legislature to apply to specific contracts.”
See also the following cases:-
– Osun State Government vs. Danlami Nigeria Ltd (Supra):
– Okeke vs. Baba (Supra):
– F.G.N. v. Zebra Energy Ltd (2002) 18 NWLR Part 798 Page 162:
Consequent upon the foregoing it is my view that the Provisions of Section 2(a) of the Public Officers Protection Act which prescribed 3 months within which to institute an action against Public Officers is not applicable to this case as the said Provision of law is not applicable to breach of contract cases as in the instant case.
This issue is resolved in favour of the Appellant against the 1st and 2nd Respondents.
In the final analysis, this Appeal is allowed. The Ruling of the lower Court delivered on the 23rd day of July 2008 which dismissed the Appellant’s case is hereby set aside. In its place, this Suit is hereby remitted to the Chief Judge of the High Court of the Federal Capital Territory, Abuja for assignment to another Judge who will hear the case on its merit without further delay.
The Appellant is entitled to cost which is fixed at =N=75,000.00 (Seventy-Five Thousand Naira) against the Respondents jointly and severally.
MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft copy of the Lead Judgment written by my learned brother BADA, JCA, in this appeal, I find the views of and conclusion by his Lordship on the lone issue for determination are the same with mine. The issue has been ably considered in adequate details and I do not wish to say more than that I entirely agree that the appeal deserves to succeed for the reasons stated in the lead judgment.
The appeal is allowed by me in terms of the lead Judgment.
PAUL ADAMU GALINJE, J.C.A: I have read in draft the lead judgment just delivered by my learned brother, Bada, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.
All the salient issues raised in the appeal have been adequately treated, as such I have nothing to add.
Accordingly I allow the appeal and endorse all the consequential orders made therein, including order as to cost.
Appearances
MR. WAHEED GBADAMOSIFor Appellant
AND
R. UMAR (MISS) for the Respondents holding brief for MRS. DURU.For Respondent
