CIVIL SERVICE COMMISSION & ANOR V. AKWA IBOM STATE NEWSPAPER LIMITED & ANOR (2013)

CIVIL SERVICE COMMISSION & ANOR V. AKWA IBOM STATE NEWSPAPER LIMITED & ANOR

(2013)LCN/6221(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of May, 2013

CA/C/162/2011

RATIO

JURISDICTION OF COURT: EVALUATION OF THE WRIT OF SUMMONS AND STATEMENT OF CLAIM

In considering whether the court has jurisdiction to entertain a matter, the court is guided by the claim before it by critically looking at the writ of summons and the statement of claim. Gafar vs. Govt., Kwara State (2007) 4 NWLR (pt. 1024) 375; Onuorah vs. K.R.P.G. (2005) 6 NWLR (pt. 921) 393; Tukur vs. Govt of Gongola State (1989) 4 NWLR (pt.117) 517; Onyenucheya vs. Mil Adm., Imo state (1997) 1 NWLR (pt.482) 429. PER UZO I. NDUKWE-ANYANWU, J.C.A

JUSTICES:

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

1. CIVIL SERVICE COMMISSION
2. THE GOVERNMENT OF AKWA IBOM STATE – Appellant(s)

AND

1. AKWA IBOM STATE NEWSPAPER LTD.
2. ODUDU SUNDAY EKPE – Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A (Delivering the Leading Judgment): The Appellants were the defendants in the trial court. The plaintiffs/respondents sued the Appellants and claimed Inter alia:
“(i) A declaration that the letter of the 1st Defendant Ref.AKC/S/00192/41 of 23/10/1997 issued by 1st Defendant purporting to terminate the appointment of the plaintiff from the service of Akwa Ibom State on account of wrong doing was wrongful, vindictive, malicious and contrary to the rules of natural justice, being in breach of the fundamental rights of fair hearing of the plaintiff.
(ii) An order for the reinstatement of the plaintiff to the job and office to complete his service for the 1st and 2nd Defendants.
(iii) An order for payment of all arrears of salaries, allowances and entitlements of the plaintiff from and including the month of November, 1997 till date of reinstatement at the rate applicable to his rank at the time of termination.
(iv) 2 Million Naira against 1st-3rd defendants as general damages arising from wrongful termination of appointment, loss of promotion and cost of litigation.
(v) The sum of N2.5 million Naira being general damages for defamation of the Plaintiff.
(vi) An injunction restraining the Defendants from further harassing or defaming the plaintiff or otherwise interfering unlawfully with his employment.”
At the end of the trial, the trial Judge delivered its considered judgment on 12th day of April, 2010 against the defendants in suit No.HU/281/1999. Being dissatisfied, the Appellants filed a notice and five grounds of appeal. The Appellants’ brief was filed on 21st day of February, 2012 but deemed properly filed and served on 26th June, 2012. The Appellants distilled 4 issues for determination as follows:
“1. Whether the trial court was right in dismissing the application of the appellants contesting the jurisdiction of the court to hear the matter for being state barred and contrary to the provisions of Section 2(a) of the Public Officers Protection Act. (Ground 3).
2. Having regard to the totality of the evidence adduced. Whether the trial court was right in holding that the termination of appointment of the 2nd Respondent was not done pursuant to the provisions of Decree 17 of 1984. (Grounds 1 and 2).
3. Whether the trial court was right in awarding the 2nd Respondent any amount of money as general damages after ordering for his reinstatement and payment of his arrears of salary, allowances and other entitlements up to date. (Ground 5).
4. Whether from the reliefs sought by the 2nd respondent, the trial court was right in restraining the appellants from further acts of interference with the 2nd respondent’s employment (Ground 6).”
The 1st Respondent filed no brief. The 2nd Respondent filed his brief on 26th July, 2012 and distilled three issues for determination as follows:
“1. Whether the trial court was right in dismissing the Appellants’ Notice of Objection which alleged that the Plaintiff’s action was statute barred. (Ground 3).
2. Whether the trial court was right in holding that the termination of appointment of the 2nd Respondent was not done pursuant to the provisions of Decree 17 of 1984. (Grounds 1 and 2).
3. Whether the trial court was right in granting the reliefs in the lower court. (Grounds 5 and 6).”
There is also an Appellants’ reply brief to the 2nd Respondent’s brief filed on 29th day of November, 2012 but deemed properly filed and served on 26th February, 2013.
The Appellants, in his brief raised a question of jurisdiction of the court to hear this appeal, it being statute barred. The appellants as defendants in the trial court, also raised those same issue but was overruled by the trial Judge.
The Appellants had submitted that the trial Judge had in its ruling delivered on 24th April, 2009 dismissed the application of the Appellants on the ground that the Appellants did not raise the issue of limitation pursuant to the Public Officers Protection Law in their statement of defence and as such they cannot raise it at this stage of the proceedings by way of a motion.
The learned counsel submitted that this was not the correct position of the law. The law is that where the date or time of accrual of the cause of action is clearly stated in the writ of summons and statement of claim, there should be no need to call evidence to prove and or disprove same. The defendant need not plead it to be able to raise the defence. Counsel referred the court to Amata vs. Omofuma (1997) 2 NWLR Pt.485 page 93; Oyebanji & Ors. vs. Lawanson & Ors. (2004) 13 NWLR Pt.889 page 62.Counsel continued that, Exhibit “D”, the letter of termination of the 2nd Respondent’s appointment was served on him on 31st October, 1997. The writ and statement of claim challenging the said termination were filed on 3rd August, 1999 almost two years after the cause of action accrued. The date, the cause of action arose was clearly on the writ and statement of claim and there was no point to plead Section 2(a) of the Public Officers Protection Act.
Counsel reiterated that limitation being one of jurisdiction could be raised at anytime without being pleaded. It can even be raised for the first time on appeal. See Anyah vs. lyayi (1993) 7 NWLR Pt.205 page 290; Kotoye vs. Saraki (1994) 7 NWLR Pt.357; F.R.I.N. vs. Gold (2007) 11 NWLR Pt.1044 page 1; Nasir s. CSC Kano State (2010) 6 NWLR Pt.1190 page 253.
In F.R.I.N. vs. Gold (supra) the Supreme Court held as follows:
“There is no doubt that this rule connotes mandatory procedure, but it does not preclude a party from raising the defence of statute of limitation, at an appellate court, even if he did not do so at the Court of first instance, because such issue borders on the fundamental issue of jurisdiction.”
The Supreme Court went further to state:
“Indeed, I repeat the principle of law that it is trite that an issue on jurisdiction can be raised at any stage of legal proceedings, be it in the Court of Appeal, or even this Court.”
Also in Nasir vs. CSC Kano State (supra) the Supreme Court per Musdapher, JSC (as he then was) held:
“The issue of jurisdiction or competence of a Court to entertain or deal with a matter before it is very fundamental. it is a point of law and therefore, a rule of court cannot dictate when and how such point of law can be raised. Being of fundamental and a threshold issue, it can be raised at any stage of the proceedings in any court including the Supreme Court. An appellate court can even raise it suo motu. “Counsel further submitted that the motion for Preliminary Objection filed by the Appellants raised the issue of jurisdiction as to the suit being statute barred. Counsel therefore urged the court to hold that the suit is statute barred and no court in Nigeria has the jurisdiction to entertain it as it is contrary to Section 2(a) of Public Officers Protection Act.
In response, the respondents submitted that the Public Officers Protection Act has nothing to do with the Appellants’ claim. The Appellants did not act within the confines of the Statute in terminating the contract of employment of the 2nd respondent. This was a specific finding of the trial Judge which has not been appealed. These findings are therefore settled. See CBN vs. Igwillo (supra) where it was held that:
“Since there is no appeal against the above findings, it is settled that they subsist. If they subsist, the appellants have no answer or answers to any or all of them. This is because, and it is settled, that such a judgment or order or findings of fact, is effective, conclusive and binding on the parties and their privies and can only be upset on appeal.”
Counsel submitted that to benefit from a statutory protection, the defendants/appellants must prove first that he acted within the clear provisions of that Statute. This of necessity requires looking at what actually transpired in the case. See Odeyemi vs. NITEL Plc (2009) LPELR – CA/L/164/2004 where the Court of Appeal held as follows:
“I agree with the submission of appellant’s counsel on this issue. The learned trial Judge resolved the issue of limitation of time prematuredly. He ought to have first determined whether Exhibit “F” the dismissal letter was signed by appropriate authority in accordance with the provisions of Decree No.17 of 1984 under which the power to dismiss the appellant was exercised before coming to the conclusion that the action was statute barred.”
See also Alli vs. Gov. Borno State (2008) All FWLR Pt.408 page 365 where the court also held as follows:
“…in the instant Case, before the respondents can claim protection under the Public Officers Protection Law of Borno State, 1994, it must be shown that they acted within the law. (Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (Pt.584) referred to p.376, paragraphs D-F.”
Counsel submitted that Public Officers Protection Act can only apply where it is proved that the public officers acted according to law. See Alhassan vs. Aliyu (2011) 195 LRCN page 109 where the Supreme Court held that:
“The Public Officer Protection Act is designed to protect a public officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification. On the purport and scope of Section 2(a) of the Public Officers Protection Act, it is well established that the Act gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material time acted within the confines of their public authority and are not acting outside their statutory or constitutional duty…”
See also Ibrahim vs. JSG (supra) where Iguh, JSC held thus:
“Once they step outside the bounds of their public authority and are acting outside the colour of their statutory or constitutional duty, they automatically lose the protection of the law. In other words, a public officer can be sued outside the limitation period of 3 months if at all times material to the commission of the act complained of, he was acting outside the colour of his office or outside his statutory or constitutional duty.”
Counsel submitted that the Appellants never complied with the Civil Service Rules in the termination of the respondent. See Oloruntoba-Oju vs. Abdul-raheem (2010) 178 LRCN page 131 where it was held that:
“Provisions of regulations and memorandum of appointment must be followed to the letter as any breach would render the exercise of termination null and void.”
See also Iderima vs. RSCSC (2006) 133 LRCN page 913:
“A public servant can only be validly removed from service if the procedure prescribed by law was followed.”
Counsel submitted that such a statutory provision or Limitation Law being a special defence must be specifically pleaded in the statement of defence. See Ojiogu vs. Ojiogu (2011) 1192 LRCN page 112; Oyebamiji vs. Lawanson (2008) All FWLR pt.438 page 236. The respondents did not plead it and the trial Judge was right in holding that:
“The statement of defence filed by the 1st and 2nd Defendants on the 29th June, 2001 has been perused and I regret to say that nothing suggesting that they were going to raise such issue of the plaintiff’s suit being statute barred was ever pleaded.
I had earlier said that the 1st and 2nd Defendant did not raise the issue of limitation of action pursuant to the Public Officers Protection Law in their statement of Defence as they ought to have done pursuant to Order 25 rule 6(1) High Court (Civil Procedure) Rules of Akwa Ibom State. They cannot raise it now through a purported Notice of Objection. I find no merit in this application.”
The Trial Court was bound to follow the decisions of the Supreme Court on the subject matter. See UNILAG vs. Olaniyan (2001) FWLR Pt.56 page 778 per Nnamani, JSC:
“…it is not open to argument that where a higher court in the hierarchy of courts has construed a rule of court which is in pari materia with the rules of a lower court that decision of the higher court is binding on the lower court in so far as the meaning of that rule of court is concerned.”
Counsel conceded that there are authorities which tend to suggest that a defendant need not plead a Statute of Limitation. However the recent case of Alhassan vs. Aliyu (supra) re-enforced the fact that the Public Officers Protection Act must be pleaded:
“I have to emphasize also that a defence founded on Statute of Limitation like the Public Officers Protection Act is a defence that the plaintiff has no right of action… The defence must be pleaded while the trial court has a duty to confine itself to the pleadings filed by the parties.”
Counsel therefore urged the court to resolve this issue in favour of the 2nd respondent. See Osakwe vs. F.C.E. Asaba (2010) 187 LRCN page 173 where it was held:
“It is now settled that where there are two conflicting judgments of this court, the lower court or courts is or are bound by the latter decision and must follow and apply it.”
Failure of the Appellants to plead Public Officers Protection Act as a defence amounts to a waiver. See F & F Farms (Nig.) Ltd. vs. NNPC (2009) 177 LRCN; UBA vs. BTC (2006) 28 NSCQR page 381.
Counsel finally submitted that the defence does not avail the appellants for the following reasons:
“The Appellants did not act within the confines of the law and as such cannot be availed of this statutory protection.”
Public Officers Protection Act does not also apply where there has been a breach of contract of employment, CBN & Anor vs. Igwillo (supra). Counsel, therefore, urged the court to resolve this issue against the Appellants.
Issue one is an issue of jurisdiction,
“Whether the court has jurisdiction to entertain this suit, it being statute barred.”
The question of jurisdiction of court is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be. Dapialong vs. Dariye (2007) 8 NWLR Pt.1036 page 332.
The Appellants filed a motion in the trial court, therein they raised a preliminary objection that the suit was statute barred:
“An objection to the jurisdiction of a court can be raised in any of the following situations:
(a) on the basis of the statement of claim; or
(b) On the basis of evidence received;
(c) By motion supported by affidavit setting out the facts relied on; or
(d) on the face of writ of summons where appropriate as to the capacity in which the action was brought, or against who the action was brought.”
Guaranty Trust Bank PLC vs. Fadco Industries Ltd (2005) All FWLR (Pt.287) 913
Nnonye Vs. Anyichie (2005) 2 NWLR (pt. 910) 623
NDIC vs. C.B.N. (2002) 7 NWLR (pt.272)
Arjay Ltd Vs. Airline Management Support Ltd (2003) 2 SCNJ 148.
In the present case, the writ of summons and the statement of claim, state categorically the date in which the cause of action accrued. The plaintiffs/Respondents endorsement on the writ states as follows:
“(i) A declaration that the letter of the 1st Defendant Ref.AKC/S/00192141 of 23/10/1997 purporting to terminate the appointment of the plaintiff from the service of Akwa Ibom State on account of wrong doing, was wrongful, vindictive, malicious and contrary to the rules of natural justice, being in breach of the fundamental rights of fair hearing of the plaintiff.
(ii) An order for the reinstatement of the plaintiff back to the job and office to complete his service for the 1st Defendants and/or in the alternative, for the sum of N3,000,000.00 being special and general damages for wrongful termination and defamation.
(iii) An injunction restraining the defendants from further harassing, the plaintiff or otherwise interfere, unlawfully with his employment.”
Also the amended statement of claim filed on 16th day of October, 2003 paragraph 12 states as follows:
“12. WHEREFORE the Plaintiff claims against the Defendants as follows:
(i) A declaration that the letter of the 1st Defendant Ref.AKC/S/00192/41 of 23/10/1997 issued by 1st Defendant purporting to terminate the appointment of the plaintiff from the service of Akwa lbom State on account of wrong doing was wrongful, vindictive, malicious and contrary to the rules of natural justice, being in breach of the fundamental rights of fair hearing of the plaintiff.
(ii) An order for the reinstatement of the plaintiff to the job and office to complete his service for the 1st and 2nd Defendants.
(iii) An order for payment of all arrears of salaries, allowances and entitlements of the plaintiff from and including the month of November, 1997 till date of reinstatement at the rate applicable to his rank at the time of termination.
(iv) 2 Million Naira against 1st’80rd defendants as general damages arising from wrongful termination of appointment, loss of promotion and cost of litigation.
(v) The sum of N2.5 million Naira being general damages for defamation of the Plaintiff.
(vi) An injunction restraining the Defendants from further harassing or defaming the plaintiff or otherwise interfering unlawfully with his employment.”
This is the date, the plaintiffs/Respondents stated in their processes, the day that the cause of action accrued.
“In considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it by critically looking at the writ of summons and the statement of claim.”
Gafar vs. Govt., Kwara State (2007) 4 NWLR (pt.1024) 375,
Onuorah vs. K.R.P.C. (2005) 6 NWLR (pt.921) 393,
Tukur vs. Govt of Gongola State (1989) 4 NWLR (pt.117) 517
Inyenucheya vs. Mil Adm., Imo state (1997) 1 NWLR (pt.482) 429.
This date is important in that any civil servant filing a suit against his suspension, dismissal or otherwise must bring it within the time stipulated by the enabling statute i.e The Public Officers Protection Act, Section 2(a) which provides as follows:
“2(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 a continuance of damage or injury, within three months next after the ceasing thereof:
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”The 1st and 2nd Appellants are public officers and so this suit against them ought to be commenced within three months after the cause of action accrued. The date the cause of action accrued is 23rd October, 1997. The plaintiffs/Respondents commenced this suit on 3rd day of August, 1999 almost two years after the cause of action accrued.
It is important for a party who perceives that a court has no jurisdiction to hear a cause or matter, to raise the issue at the earliest opportunity. Nnonye vs. Anyichie (2005) 2 NWLR Pt.910 page 623.
In this suit, the defendants/Appellants in the lower court filed a Preliminary Objection challenging the jurisdiction of the court to entertain this suit, it being statute barred.
In considering whether the court has jurisdiction to entertain a matter, the court is guided by the claim before it by critically looking at the writ of summons and the statement of claim. Gafar vs. Govt., Kwara State (2007) 4 NWLR (pt. 1024) 375; Onuorah vs. K.R.P.G. (2005) 6 NWLR (pt. 921) 393; Tukur vs. Govt of Gongola State (1989) 4 NWLR (pt.117) 517; Onyenucheya vs. Mil Adm., Imo state (1997) 1 NWLR (pt.482) 429.
I have critically looked at the writ of summons and the statement of claim. They all state that the cause of action accrued on 23rd October, 1997.
The latest date this suit ought to be commenced is 22nd January, 1998 for it to be competent before the court. Unfortunately the Respondents filed on 3rd August, 1999. The date of commencing an action in court is a condition precedent that must be fulfilled before the court can assume jurisdiction.
The 2nd Respondent’s counsel argued that this defence was not available to the Appellant. He argued strenuously that this defence can only be available if the Appellants adhered strictly to the provisions of the Statute. I am afraid the court cannot go into the merits or demerits of this suit at this stage. The arguments proffered by the learned Respondent’s counsel would have been cogent and convincing if the action was brought by due process of the law. The suit was filed out of time and therefore statute-barred.
The arguments of the learned counsel would have held water where the suit was filed within time. It left the court benefit of the necessary vires to begin to look into whether the offending officious exercised their duties within the confines of the law; be protected by it. The question of jurisdiction of the court has been raised. The court would first of all pursuant to Section 6 of the 1999 Constitution, assume jurisdiction to consider whether it has the jurisdiction to entertain the suit as it is presently constituted. See Adeleke vs. O.S.H.A. (2006) 16 NWLR Pt.1006 page 608; Egbebu vs. IGP (2006) 5 NWLR Pt.972 page 146. The court’s jurisdiction was challenged, therefore, the court must first of all assume jurisdiction to decide whether in clear and unequivocal terms, if it has or lacks jurisdiction. Attorney-General Lagos State vs. Dosunmu (1989) 3 NWLR Pt.l11 page 552; Nokoprise International Co. Ltd. vs. Dobest Trading Corporation (1997) 9 NWLR Pt.520 page 334.
The law is that the court at this stage can only look at the writ and the statement of claim and nothing more. The cause of action accrued on 18th October, 1997 and the suit was commenced on 3’d August, 1999. This is more than three months envisaged by the Public Officers Protection Act.
The learned counsel to the 2nd Respondent argued that the Appellants did not plead the defence of Public Officers protection Act and statute bar in their pleadings. When it concerns jurisdiction there is no good or bad way of bringing to the court’s attention a question of jurisdiction. It is a point of law and, therefore, a rule of court cannot dictate when and how such point of law can be raised. Being fundamental and a threshold issue, it can be raised at any stage of the proceedings in any court, including the Supreme Court. Anyah vs. Iyayi (1993) 7 NWLR Pt.305 page 290; Kotoye vs. Saraki (1994) 7 NWLR Pt.357 page 414: where the court held:
“Statute of Limitation is a matter of jurisdiction which can be raised at any stage of litigation, even in the Supreme Court. In the instant case, the respondent’s application and/or objection was predicated on Section 2(a) of the Public Officers Protection Act.”
Being a point of law touching on the jurisdiction of the trial court to hear and determine the case, all the trial court needed to do was to consider the provisions of the law under which it was brought and the affidavit evidence in support. F.R.I.N. vs. Gold (supra); Elabanjo vs. Dawodu (2006) 15 NWLR Pt.1001 page 76:
“Limitation statutes are exact as to the time frame. They do not leave the court in doubt. In the instant case it is three months; not a day longer than three months. It was therefore clear from the facts of the instant case that the action was statute-barred.”
Once an action is statute-barred, there is nothing the court can do to proceed, other than to strike out the action. This suit is statute-barred and there is nothing the court can do. The court lacks the necessary jurisdiction to entertain this suit and so also this appeal. All the other issues would not be considered as it would be an exercise in futility.
This appeal is therefore allowed as the suit is statute-barred.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Uzo I. Ndukwe-Anyanwu, has adequately considered the crucial issue of the four(4) issues submitted by the learned counsel for the Appellants in the lead judgment, a copy of which I read before today.
That issue is the fundamental issue of whether the Respondents’ suit at the High Court was statute barred or not. As ably demonstrated in the lead judgment, a suit is said to be statute barred if and when it was initiated or commended after the expiration or effluxion of the period of time prescribed and limited by the provisions of statute for the initiation or commencement of such a suit by way of the judicial processes of a court of law. A statute which prescribes or limits the period of time within which the right to enforce a legal right or claim by use of the judicial processes of a court of law, is known as a statute of limitation in relation to any action taken to enforce such a right or claim in court. The principle of statute of limitation of action is premised on the notion that no one should remain under threat of being sued indefinitely and that the right to enforce a claim through the judicial processes of a court of law should not be forever. The rationale for the existence of such statutes is premised on the following factors:-
a) that long dormant claims have more cruelty than justice in them.
b) that the person against who they might be made may have lost the requisite evidence to disprove the claim due to passage of time
c) that a person with good cause of action should pursue them with reasonable diligence.
See Egbe v Adefarasin (1987) 1 NWLR (47) 1 at 20; Aremo II v. Adekanye (2004) 7 SC (Pt.II) 28; Horikolo v. AGF (2003) FWLR (184) 349 at 363.For the purpose of the limitation law, the time begins to run from the date the cause of action accrues to a person such that he can approach a court of law for a judicial relief in respect thereof against another. Procedurally, to determine whether an action or suit is statute barred, all that is required of a court where it arises, is to look at and examine the initiating processes, (usually writ of summons/statement of claim or originating summons) setting out when the wrong was committed which gave rise to the cause or right of the action and the date when the processes were filed to initiate or commence the action. If the date on which the processes were filed to commence or initiate the action or suit is beyond or outside the period of time prescribed and limited by a limitation law for the commencement or initiation of such an action or suit, then the action or suit would be said to be statute barred. The effect of the application of the principle of the statute of limitation is that a party who might have had a right or cause of action, loses the right to enforce the cause of action through or by the judicial processes of a court of law because the period of limitation laid down by the relevant law for instituting or commencing the action or suit had expired or lapsed. See Adimora v Ajufo (1988) 6 SCNJ, 18; Ekeogu v Aliri (1991) 3 MLR (179) 258; P.N. Trading Co. Ltd. v Abere (2001) 5 SC (Pt.II) 64 at 73 – 4; Aremo II v Adekanye (supra) NPA Plc v Lotus Plastics Ltd. (2005) 12 SC (Pt.1) 19; Adekoya v FHA (2008) 6 MJSC, 66; CPC v INEC (11) 12 MJSC (Special Edition) 105.

By the general rules of pleadings, as a defence, the application of the statute of limitation to or in an action is required to be pleaded not in the sense that the law itself be pleaded, but the relevant facts which are to be relied on for the application of the law, need to be set out in the pleadings. Law need not be pleaded as the court should take judicial notice on the applicability of existing legislations or laws, such as the statute of limitation, to actions before them. See Klifco Nig. Ltd. v N.S.I.T.F.M.B. (2005) ALL FWLR (288) 1209; Megawalu v Kano State Govt. (2006) ALL FWLR (329) 918 at 928.
The issue of the application of a statute of limitation to an action can be raised as a defence in pleadings or as an objection to the competence of the action which directly goes to and touches on the competence or jurisdiction of the court before which the action was taken. See Arabella v NAIC (2008) 32 WRN 1 at 26; Emiator v N.A (2000) 24 WRN 97, at 9 SCNJ, 52; Corona v Emespo (2002) 2 NWLR.In the latter situation, the issue can be raised at any stage of the judicial proceedings either before the trial court or later, at the appellate courts. Since it involves and challenges the judicial authority and power, of the court entertain the action. See Oloba v Akereja (1988) 7 SCNJ, 56; Okesuji v Lawal (1991) 1 NWLR (170) 661; C.G.G. Nig. Ltd. v osu (2005) 2 Sc (Pt.II) 50; Olagunju v PHNC (II) 4 MJSC, 144.
In the present appeal, it is beyond argument that by the facts and reliefs sought in the 2nd Respondents’ Amended statement of claim, which have been fully set out in the lead judgment, the cause of action arose and accrued to him vide the letter of termination of appointment dated the 23/10/1997. By the date the letter was served on and received by the 2nd Respondent, all the relevant necessary and requisite facts or aggregate of facts had occurred which entitled him to approach, the court and if proved, to a judicial remedy against the Appellants. The provisions of Section 2(a) of the Public Officer Protection Act, provide that:-
“2(a) 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 be instituted unless it is commenced within three months next after the act neglect or default complained of or in case of a continuance of damage or injury, within three months next after the ceasing.”
Briefly, these provisions limit the time within which any action prosecution or other proceeding against a person for any act, or, neglect in the execution of a public duty authority or law, to three (3) months next after the act or neglect in question, happened or if it is of a continuous nature, after it ceases. For an action in envisaged by the provisions to be validly initiated and maintained, it must be instituted or commence within the three months prescribed and limited therein. Any such action filed, instituted or commenced outside and after the expiration or effluxion of the three months period stipulated in the provisions would be statute barred and cannot be maintained in law, for being incompetent by operation of the law. See NPA v Lotus Plastics Ltd. (supra); Ekeogu v Aliri (supra); Sanda v Kukawa Local Govt. (1991) 2 NWLR (174) 379; Sulgrave Holdings Inc. v F.G.N (2012) 7 MJSC 34.
In the above premises, since the 2nd Respondent’s right or cause of action accrued to him when he was served and he received the letter dated 23/10/1997 terminating his appointment, any action by him using the judicial processes of a court of law to claim a relief against the Appellants in respect of the termination of his appointment, had to be instituted, initiated, commenced or filed within three (3) months after the receipt of the letter of termination by him for it to be competent for adjudication by the court. Apparently, from the date on the face of the writ of summons; the originating summons process by which the case was initiated, commenced or filed by the 2nd Respondent in the High Court which was 3/8/1999, the case was instituted or filed about two (2) years after the date of the letter of termination of appointment, a date outside and after the expiration or effluxion of the period of three (3) months limited by the provisions of section 2(a) above. It is therefore “clear as crystal” that the action was statute barred at the time it was filed and so incompetent by operation of the law. See Ogunko v Shell (2004) 6 NWLR (868) 17; Osun State Government v. Danlami (2007) 1 ALL FWLR (365) 438. The High Court was thereby robbed of the requisite competence or jurisdiction to adjudicate over the action. The absence of the necessary jurisdiction on the part of the High Court to entertain the action for being statute barred, renders all the proceedings conducted by it in the case, null, void and of no legal effect ab initio. See Okike v L.P.D.C (No. 2) (2005) 7 SC (Pt.II) 75; Uzoukwu v. Ezeonu (II) (1991) 6 NWLR (200) 708; Okoye v N.C. & F. Co. Ltd. (1991) 6 NWLR (199) 501; Attorney-General, Lagos State v. Dosunmu (1989) 3 NWLR (III) 552; Ukwu v Bunge (1997) 8 NWLR (518) 527.
Let me also emphasise that the issue of an action being statute barred being one which touches the jurisdiction of a trial court to entertain it, as a point of law or defence can be raised by way of a preliminary objection or in a motion because it will be decisive of the action. See AGF v. Guardian Newspapers Ltd. (1999) 9 NWLR (618) 187 at 202, (99) 5 SCNJ, 324, Owners v. Insurance (2008) 5 SCNJ, 109 at 125. For that reason, the High Court was wrong when it said in the ruling on the motion filed by the Appellants seeking to challenge the action for being statute barred, that the issue had to be pleaded in the pleadings. I am aware of some authorities which state that the issue as a defence needs be pleaded but as pointed out earlier, only facts which make the law applicable and not the law itself need be pleaded. In any case, the issue can be raised at any stage as an objection or in a motion as shown above.
Finally on the issue, it was held by the Supreme Court in the case of Egbe v Adefarasin (supra) that it is useless to deal with other issues raised in appeal no matter how meritorious they might otherwise be, where an action is statute barred.
In the result, for the above and more detailed reasons set out in the lead judgment which I adopt, I am in agreement that the 2nd Respondent’s action was/is statute barred by the application of the provisions of section 2(a) of the Public Officers (protection) Act. In the case of (2000) 12 SCNJ, 206, it was held that where a cause of action has lapsed for being statute barred, the action shall be struck out for being incompetent. I accordingly strike out the action for being statute barred. Parties to bear their respective costs of prosecuting the appeal.

JOSEPH TINE TUR, J.C.A: I read an advance copy of the judgment just delivered by my Lord Uzo I. Ndukwe-Anyanwu, JCA and I concur that the suit is statute-barred and ought to have been dismissed by the learned trial Judge. Limitation Laws such as the Public Officers Protection Act when raised as a plea and upheld by the learned trial Judge, the best course is to dismiss the action. See Egbe vs. Adefarasin (1987) 1 NWLR (Pt.47) 1 at 15; NPA vs. Lotus (2005) 12 SCNJ 165 at 182-184. In dismissing this suit as statute-barred I have taken into consideration the provisions of Section 2(a) of the Public Officers Protection Act, Cap. P41 Laws of the Federation of Nigeria, 2004 which reads as follows:
“2(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after next the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison…”
The letter terminating the 2nd respondent’s appointment from services of Akwa lbom State was dated 23rd October, 1997. That was the date the cause of action arose. The writ of summons was filed in the Court below on 3rd August, 1999 well outside the three months period prescribed under Section 2(a) of the Public Officers Protection Act (supra). Paragraph 7 of the Amended Statement of Claim pleads that:
“7. On 31st October, 1997 the Plaintiff, while on duty was served with a letter titled TERMINATION OF APPOINTMENT dated 2nd October, 1997 by which the 1st Defendant claimed to have ended the job of the Plaintiff with effect from 2nd October, 1997, alleging that it had been established that the Plaintiff, among others, owned fake vouchers fraudulently raised in the total sum of N616,750.00 inadvertently approved for payment by His Excellency the Military Administrator. At the trial the Plaintiff shall found on the said Termination of Appointment letter and shall lead evidence to establish that he was never involved in any fraud in his years of service and was never a party to the alleged fraudulent dealing.”
The amended statement of claim is what the Court should have scrutinized to determine when the cause of action arose. See Adeyemi vs. Opeyori (1976) 1 FNLR 149 at 157; Ladoja vs. INEC (2007) All FWLR (Pt.377) 934 at 967; Izenkwe vs. Nnadozie 14 WACA 361. When a party pleads that the action is statute-barred, it simply means that it has not been initiated by due process of law and is therefore incompetent. See Madukolu & Ors. vs. Nkemdilim (1962) 1 All NLR 587 at 595; Adeigbe & Anorvs. Kusimo & Ors. (1965) NMLR 284/287. The issue of competence of the suit has to be determined first before the Court will consider the merit of the action. In that case, the jurisdiction of the Court will be determined from the date the cause of action arose and not the date the suit was filed in Court. See Uwaifo vs. Attorney-General of Bendel State (1982) 7 SC 124; Adeyeye vs. Ajiboye (1987) 7 SGNJ 1. Jurisdiction must be vested in a Court of law before the rights of the parties can be determined. See Kalu vs. Odili (1992) 6 SCNJ (Pt.1) 76.
I am of the humble view that the learned trial Judge should have considered the issue of the suit being filed outside the statutory period of three months before proceeding to determine the merits of the action. This is clearly set out in the unanimous judgment of the Supreme Court in John Ekeogu vs. Elizabeth Aliri (1991) 3 SCNJ 45. That was a case where a teacher in the Community Primary School Ohekelem, Ngor Okpala, Owerri in the course of duty mercilessly flogged a pupil to the extent of injuring her left eye. The incident happened on 2nd day of December, 1985. The action claiming damages was commenced against the teacher and his employer by the pupil’s next of kin on 20th day of July, 1987. The teacher pleaded the Public Officers Protection Law Cap 106 Laws of Eastern Nigeria, 1963 by way of motion on notice supported by affidavit as a defence. The learned trial Judge heard argument but dismissed the application. The decision was affirmed by the Court of Appeal. On a further appeal to the Supreme Court, it was held at page 52 lines 8-38 per Kawu, JSC as follows:
“Now, I have no doubt in my mind that on the facts of this case, both the trial Court and the Court of Appeal were in error when they concluded that the conduct of the appellant was such that he should not be allowed the protection of Section 2 of the Public Officers Protection Law. It is clear, on the facts, that at all material times the appellant was acting in pursuance of his public duty as a teacher exercising disciplinary control over his pupils. The fact that there was or might be some default or negligence on his part in the performance of his duty should not be the basis for depriving him of the protection under the section. After all what was in issue at that stage of the proceeding was not the liability of the appellant but whether the action was maintainable or/not. It is only after the action has been instituted that the appellant’s conduct can be probed. In Egbe vs. Adefarasin (1985) 1 NWLR (Pt.3) 549 at p.569, this Court as per Karibi-Whyte, JSC put the matter as follow:-
“Again where the defendant has raised an unanswerable plea of protection under the Public Officers Laws on the uncontested facts as ld respondent has done in this case, there is absolutely no basis for prying into the conduct of such a defendant which gave rise to the action. The Court of Appeal need not have gone into the question of whether malice was a relevant consideration in determining the liability of the 2nd respondent. The issue before the Court was whether the action was maintainable. It is not whether the 2nd respondent was liable.”
In this case the issue before the Court was whether the appellant u/as acting in pursuance of his duty as a teacher when he caused injury to the respondent and not his liability for the injury which can only be determined after the case has been properly instituted. In this case as the respondent had failed to institute the action within the period stipulated by the law, his action was statute-barred, and as was observed by Aniagolu, JSC in Egbe vs. Adefarasin (1987) 1 NWLR (Pt.47) at p.13:
“…If the action was barred by statute, no amount of resort to the merits of appellant’s contention will serve to keep the action in being.”
Nnaemeka-Agu, JSC also held at page 55 lines 14-36 as follows:
“The preliminary question I have to consider is on what facts do I have to decide this appeal? I must point out that there was yet no trial of the facts raised in the statement of claim. So there cannot be any findings of fact, much less concurrent findings of fact by the two lower Courts as suggested by the learned Counsel for the respondent. Findings of fact can only emerge after a trial of issues of fact that have been joined on the pleadings. All that the rule (i.e. O.29 r.2) says is that for purposes of the application the defendant shall be taken as admitting the truth of the plaintiff’s allegations in the statement of claim. I do not think that mere admission of the facts in the circumstances contemplated by the rule justifies the learned justice of Appeal to go to the extent of finding that “the action of the appellant is beastly and without justification” or to the supposition that “if, as a result of the flogging of the respondent, death were to result, could it be said that the appellant was acting in pursuance of a public duty?” With respects, I am of the view that until trial, such conclusions and inferences of facts were unnecessary, particularly as they tended to obscure the Court from making a proper and objective approach to the issue before it at that stage of the proceedings. What should have been considered was whether, in view of Section 2 of the Public Officers Protection Law (Cap 106) there was in existence any cause of action in Court: Egbe vs. Adefarasin (1987) 1 NWLR (Pt.47) 7, at pp.20-27. The statement of the learned justice of Appeal might have been apt if it were settled that the respondent had a cause and a right of action and the need then arose to consider the merits or the demerits of the case.”
Wali, JSC held at page 60 lines 6-25 as follows:
“The main issue now is “Can the respondent or any other person sustain any action against the appellant, having regard to the provision of Section 2 of the Public Officers Protection Law referred to (supra)?
In my view the answer will be in the negative. The provision of the law is very clear. The cause of action accrued to the respondent from the date the unfortunate incident happened and that was 2nd of December, 1985. From that date the respondent had three months within which to bring the action. This however was not done until on 20th Jug, 1987 when the present action was filed. This is almost one year and seven months after the accrual of the cause of action. This goes also to show that the action was filed well out of time by one year and four months. If is caught by the provisions of Section 2(a) of the Public Officers Protection Law as it was filed outside the statutory stipulated period of three months after the happening of the incident. The case here is as Karibi-Whyte, JSC put it in Egbe vs. Adefarasin (1987) 1 NWLR (Pt.3) 549 at 569 that:
“The issue before the Court was whether the action was maintainable. It is not whether the 2na respondent was liable.”
Both the trial Court and the Court of Appeal were wrong in delving into the alleged criminality of the appellant’s action, thus ignoring the statutory limitations imposed by subsection (a) of Section 2 of the Law.”
The lower Court and this Court are by the doctrine of stare decisis bound to follow the judgment of the Supreme Court. See Dalhatu vs. Turaki (2003) 15 NSCQR 247. For these and the fuller reasons in the lead judgment I also allow this appeal and dismiss the suit in the lower Court as being statute-barred.