LAWAL USMAN IBRAHIM v. DEPUTY SHERIFF & ORS
(2014)LCN/7326(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of June, 2014
CA/K/233/2010
RATIO
STATUTE OF LIMITATION: SUIT THAT IS STATUTE BARRED; HOW TO DETERMINE WHETHER A SUIT IS STATUTE BARRED OR NOT
It was held in the case of Agi v Eno (2010) 5 NWLR (Pt. 1188) Page 626 at Page 647 Para B-C per Ngwuta JCA (as he then was) that it is the cause of action, as determined from the originating process and statement of claim, that is relevant for the determination of whether a suit is time barred. A court cannot go outside the originating process and determine the accrual of the cause of action.
It was similarly held in the case of Egbe v Adefarasin (1987) LPELR 1032, cited by the 3rd Respondent’s Counsel, per Oputa JSC at Page 32 Para C that one determines the period of limitation by looking at the Writ of Summons and the Statement of Claim.
In the instant case, the decision of the lower Court, quoted above that the suit was barred by statute was simply determined by the absence of a counter affidavit or written address from the Appellant, as being consistent with a lack of objection to the application. There was no reference by the Court to the Writ of Summons or Statement of Claim filed by the Appellant. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
STATUTE OF LIMITATION: PUBLIC OFFICERS PROTECTION ACT CAP P41 LAWS OF THE FEDERATION OF NIGERIA 2004; THE CONDITIONS TO AVAIL THE APPELLANTS THE PROTECTION OF THE PUBLIC OFFICERS PROTECTION ACT CAP P41 LAWS OF THE FEDERATION OF NIGERIA 2004
The Appellant has cited the case of Central Bank of Nigeria v Okojie (2004) 10 NWLR Part 882 Page 488 in support of his contention that as the act of the 1st Respondent was done in bad faith, he is not entitled to the protection of the statute.
In that case, it was held by the Court of Appeal per Galadima JCA (as he then was) at Page 523 Para A-C as follows: “Two conditions must exist to avail the appellants the protection of section 2(a) of the Public Officers Protection Law. First, it must be established that the person against whom the action is commenced is a public officer, second, the act done by the appellant in respect of which the action was commenced must be an act done in pursuance or execution or intended execution of any law or of any public duty or authority. See Ekeogu v. Aliri (1990) 1 NWLR (Pt. 126) 345.
The Public Officers’ Protection Law is designed to protect the officer who acts in absolute good faith and does not apply to acts done in abuse of office and with no semblance of legal justification.”
Also cited by learned Counsel is the case of Federal Republic of Nigeria v Ifegwu (2003) 15 NWLR Part 842 Page 113 at 188 Para F-H where the Supreme Court, per Uwaifo JSC held as follows:
“At this stage, I think I can briefly dispose of the argument in respect of section 2 of the Public Officers Protection Act (Cap. 379) Laws of the Federation of Nigeria relied on by learned Senior Advocate that the respondent’s action was statute barred. It would be argument carried too far to say that the Public Officers Protection Act applied to bar a relief sought in connection with an error committed in purely judicial capacity. It does not. The remedy sought is to enforce a constitutional right contravened by a court acting judicially. The time within which to seek that remedy is not subject to the time limit prescribed by the Public Officers Protection Act. There is no reason why it should. If it did, it would likely conflict with court rules.” per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
COURT: THE DUTY OF THE COURT; THE DUTY OF THE COURT TO CONSTRUE STATUTE AND RULES OF COURT ONLY FOR THE ENDS OF JUSTICE
Thus in its resolve to construe statutes and rules of court only for the ends of justice, this court has articulated in a number of cases that whenever a plaintiff establishes a wrong that has been inflicted on him by a defendant, he should be granted a remedy in spite of defects and other inadequacies as to form and contents of the document by which he initiates and sets out his claim. This was eloquently demonstrated in the earlier case of Aliu Bello & 13 Others v. Attorney General of Oyo State (1986) 5 NWLR (Pt. 45) 828. In that case, this court, per Oputa, JSC, of page 886 restated the principle thus:-
‘Law and all its technical rules ought to be but a hand maid of justice and legal inflexibility (which may be becoming of law) may, if strictly followed, only serve to render justice grotesque or even lead to outright injustice. The court will not endure that mere form or fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the case before it …’
And at page 871, Karibi-Whyte restated the principle more pointedly when he said:-
‘I think it is erroneous to assume that the maxim ubi jus ibi remedium is only on English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the courts to provide a remedy whenever the plaintiff has established a right…’ “
The response of the Supreme Court to the submission of the learned SAN above is that the form an action is brought is not material where there has been a wrong perpetrated, as the Appellant has averred. For, where there is a wrong, there must be a remedy. Form, cannot therefore defeat a party who has been wronged. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA A. WAMBAI Justice of The Court of Appeal of Nigeria
Between
LAWAL USMAN IBRAHIM Appellant(s)
AND
DEPUTY SHERIFF & ORS Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Hon. Justice Isa Aliyu of the High Court of Kaduna State in Suit No. KDH/Z/351/2007, delivered on the 29th day of June 2009, in which the Appellant was the Plaintiff.
The Court, following a Preliminary Objection filed by the 1st Defendant, the Deputy Sheriff of the High Court of Kaduna State (1st Respondent herein) requesting for the dismissal of the suit, struck out the suit, holding that the court had no jurisdiction to hear the same.
Dissatisfied with this decision; the Plaintiff appealed to this Court, seeking an order setting aside the order of the lower Court. He also sought for an order remitting the case to another Judge for trial.
The 3rd Respondent, in response to the appeal, filed a Notice of Preliminary objection on 12/6/13 contending that the appeal is incompetent and ought to be struck out.
At the hearing of the appeal, the Appellant and the 3rd Respondent adopted their Briefs of Argument. Senior Advocate of Nigeria, Mr. Yunus Ustaz Usman for the 3rd Respondent, drew the Court’s attention to the Notice of Preliminary Objection filed on behalf of the 3rd Respondent, which, he said, had been argued on pages 4-8 of the Respondent’s Brief of Argument.
The other Respondents filed no Briefs of Argument and were absent and unrepresented at the appeal, even though notified.
The Appellant’s Brief of Argument was settled by K. A. Adedokun Esq of K.A, Adedokun & Co. The 3rd Respondent’s Brief was settled by Yunus Ustaz Usman (SAN) of Yunus Ustaz Usman (SAN) & Co.
Two issues for determination were raised by the Appellant, as follows:
1. Whether the learned Judge did not deny the Plaintiff the right to fair hearing as enshrined in Section 36 of the 1999 Constitution.
2. Whether the learned trial Judge rightly declined jurisdiction on the ground that the Plaintiff’s suit is statute barred.
The 3rd Respondent, in the event that his Preliminary Objection failed, raised the following as his issues for determination in the appeal, namely:
1. Whether the Deputy Sheriff (1st Defendant/1st Respondent) can be sued on 24th July 2007 for the sale conducted by him in his official capacity on 31st January 2007.
2. Whether the Appellant was denied his right to fair hearing.
Before proceeding to a determination of the issues for determination, it is necessary to treat the Notice of Preliminary Objection filed by the 3rd Respondent.
The Preliminary Objection of the 3rd Respondent is that the appeal is incompetent and ought to be struck out, on the following ground:
“Having not appealed against the profound finding of the Honourable trial Judge to the effect that the 1st Respondent (whose action of auctioning the Appellant’s landed property is the primary lis in the action) is not a juristic personality capable of suing or being sued, the appeal has become academic.”
Arguing the Preliminary objection, counsel to the 3rd Respondent, in the 3rd Respondent’s Brief of Argument, submitted that once the lower Court granted the prayers contained in the Notice of Preliminary objection, the only way to challenge those findings is by way of appeal.
The Appellant, however, did not challenge the finding of the trial Court to the effect that the 1st Respondent is not a juristic person capable of suing or being sued, that decision thus still stands and the present appeal becomes merely academic.
Citing authorities, the SAN submitted that where a crucial finding of fact on the basis of which the judgment of a court is made is not impeached or challenged, it remains valid and subsisting. Since the decision of the trial Court that the 1st Respondent who auctioned the property cannot sue or be sued, of what benefit, he asked, is the decision in respect of the two grounds of appeal, even if the appeal is decided in the Appellant’s favour. Courts of law do not deal with academic matters, he submitted.
Learned Counsel to the Appellant, in his Reply Brief, summarized the grounds upon which the Preliminary Objection at the lower Court was premised as being, firstly, that the suit was statute barred for violating Sections 47 and 48 of the Sheriffs and Civil Process Act and the Public Officers Protection Act, and secondly, that the 1st Respondent is not a juristic person.
It is not mandatory, he submitted, for the lower Court to base its ruling on all the grounds set out in the application. It suffices if the Court in its wisdom finds one of the grounds sufficient to sustain the objection and ignores the remaining grounds. In the instant case, the Preliminary Objection was sustained on the ground of being statute barred alone and not on the question of whether the 1st Respondent is not a juristic person capable of suing or being sued. Authorities cited by the 3rd Respondent’s Counsel are thus not apposite and the present appeal not academic.
It is necessary at this juncture to give the facts leading up to the instant appeal and the Preliminary objection filed by the 3rd Respondent.
The Appellant’s case before the lower Court is that he purchased the property in dispute for the sum of N4.5% Million from one Mr. Ishie in 2006, who in turn, purchased it at a public auction conducted by the 1st Respondent on 28th February 2005. The property was sold by auction to Mr. Ishie pursuant to the judgment of the High Court of Kaduna State (coram Esther Inuwa J) in Suit No KDH/KAD/699/98 between (1) Societe General Bank (Nig) Ltd v (1) J & E Oil Ltd (2) Mrs Mariah E. Orgah, in which the property of the 2nd Defendant (2nd Respondent herein) was attached in satisfaction of the judgment against the Defendants in that case. Contrarily,this same property was again attached by the 1st Respondent in satisfaction of the judgment of another Court (coram Balogun J) in Suit No KDH/KAD/335/2005 between Arewa iles Ltd v Mrs Mariah Orgah and the property allegedly auctioned to the 4th Respondent. The 3rd Respondent subsequently claimed ownership of the property. The 4th and 5th Respondents have stationed thugs on the property, laying claim to it and preventing the Appellant from entering the premises. In consequence the Appellant instituted a claim in the lower Court against the Respondents jointly and severally seeking the following reliefs:
“i. A declaration that the Plaintiff is the bonafide and beneficial owner of all that property lying and situate at No. 10, Abidjan Crescent, Unguwar Rimi Low Cost Kaduna having lawfully and equitably acquired some from Mr. Ada A. Ishie on 26th August, 2006.
ii. A declaration that the property lying and situate at No. 10 Abidjan Crescent Unguwar Rimi, Lost (sic) cost, Kaduna had ceased to be the property of the 2nd Defendant from the 28th day of February, 2005 when it was lawfully auctioned by the 1st Defendant to Mr. Ado A. Ishie pursuant to the orders of this Honourable Court (CORAM: E. INUWA J.) made on the 31st day of May, 2004 in satisfaction of the Judgment Debt in suit No. KDH/KAD/499/98 Societe Generale Bank (Nig.) Plc vs. J & E Oil Ltd and Mrs. Mariah E. Orgah.
iii. A declaration the said property at No.10 Abidjan Crescent, Unguwar Rimi Low Cost, Kaduna having ceased to be the property of the 2nd Defendant from the 28th February, 2007 it cannot be lawfully and justifiably attached by this Honourable Court (CORAM BALOGUN in suit No. KDH/KAD/335/2005 Arewa ile Ltd -v- Mrs. Mariah E. Orgah to satisfy the Judgment Debt against the 2nd Defendant.
iv. An order setting aside the attachment of the Plaintiff’s property lying and situate at No.10 Abidjan crescent, Unguwar Rimi Low cost, Kaduna made by this Honourable Court (CORAM BALOGUN J.) in suit No.KDH/KAD/335/2005 Arewa iles Ltd -V- Mrs. Mariah E. Orgah.
v. A declaration the “auction” of the Plaintiff’s property at No.10 Abidjan crescent Unguwar Rimi Low cost, Kaduna conducted by the 1st Defendant for the benefit of the 3rd Defendant on the 31st January, 2007 of the said property is null, void and of no effect and cannot vest title on the 4th Respondent and/or the 5th Defendant.
vi. An order nullifying all processes issued by the 1st Defendant, particularly the Certificate of Purchase issued by the 1st Defendant in favour of the 4th and/or the 5th Defendant same being null and void as same cannot vest any title whatsoever on the 4th and/or the 5th Defendant.
vii. A declaration that the unlawful entry and forceful take over of the Plaintiff’s house at No. 10 Abidjan Crescent, Unguwar Rimi Low-Cost, Kaduna by the 1st, 3rd, 4th and/or the 5th Defendants and their agents, servants and or privies constitute trespass and had caused the plaintiff great loss and anguish.
viii. An order of perpetual injunction restraining all the Defendants, their servants, Agents and/or privies from laying claim, interfering, trespassing and/or disturbing the peaceable possession of the Plaintiff’s property lying and situate at No.10 Abidjan Crescent, Unguwar Rimi Low Cost, Kaduna.
ix. General damages in the sum of N2,000,000.00
x. The cost of filing this suit.”
The 1st Respondent, before the trial Court, filed a Notice of Preliminary Objection. The trial Judge, in his Ruling of 29/6/2009 upheld the Preliminary Objection and struck out the suit.
It is indeed true, as submitted by the Senior Advocate of Nigeria that where a crucial finding of fact on the basis of which a Judgment of Court is made is not impeached or challenged, it remains valid and subsisting.
It is also true that the Court does not indulge itself in the luxury of academic exercise. See the case of Awojugbagbe Light Industries Ltd v Chinukwe (1995) 4 NWLR Part 390 Page 379 at 410 Para D per Bello CJN
To properly appreciate the submissions of Counsel as to whether or not the Appellant, in its Notice of Appeal, challenged the finding of the trial Court and whether this finding is that the 1st Respondent is not a juristic person capable of suing or being sued, it is necessary to set out the proceedings of the day in question, as contained on Pages 213-214 of the Record. It is also necessary to set out the Preliminary Objection that led to the Ruling of the Court which Ruling the Appellant has challenged by the instant appeal.
The Preliminary Objection is contained on Pages 184-185 of the Record Book, and states as follows:
“Take Notice that this Honourable Court will be moved on the …. day of …. 2009 at the hour of 9 O’clock or so soon in the forenoon or so soon thereafter when counsel on behalf of the 1st Respondent may be heard praying the Honourable Court for the following orders:
1. An order of the court dismissing the action for being statute barred.
2. And for such other or further order(s) as this Honourable Court may deem fit to make in the circumstance of this application.
Grounds of Objection is (sic)
1. The suit is statute barred by the provisions of Sections 47 and 48 of the Sheriff and Civil Process Act 2004 and the court lacks jurisdiction to entertain same.
2. The 1st Defendant is not a juristic person capable of suing or being sued.
3. Section 47 of the Sheriff and Civil Process Act provides for the made of setting aside the auction sale of an immovable property which is by an application to the Judge within a specified period of time and not by writ of summons.
4. That the suit is caught up by Public Officers Protection Act Laws of the Federation 2004.
Dated this 25th day of May 2009
Muhammad I. Aliyu Esq
Attorney General’s Chambers
Ministry of Justice,
Kaduna.”
The proceedings of the lower court of 29th of June 2009 when the Ruling of the Court was delivered is set out below:
“29-6-2009
Tijani Mala represents the plaintiff Mr. Mohammed I. Aliyu with Modibo Ibrahim Ahmed for 1st defendant/applicant.
Mr. M.E. Salihu for the 2nd defendant with C.C. Okorapo.
S.A. Mohammed for the 3rd and 4th defendants/applicants.
Mr. Aliyu- we have a notice of preliminary objection dated 25th May 2009. It has been served on all the parties. There is no counter affidavit from any of the parties challenging the preliminary objection. We apply to move same.
Mr. Salihu – No objection.
Mr. Mohammed – No objection.
Tukur – Affirmed to interpret Hausa to English and vice versa.
COURT – RULING
“The notice of preliminary objection of the learned 1st defendant’s Counsel is seeking for an Order dismissing the action for being statute barred. On the ground that the suit is barred by the provision of Section 47 and 48 of Sheriff and Civil Process Act 2004 and the Court lacks jurisdiction to entertain the suit. The other ground is that the 1st defendant is not a juristic person.
This application is supported by an affidavit and a written address.
The preliminary objection has long been served on the respondents including the plaintiff. None of the respondents filed a counter affidavit and a written address or a written address to challenge the preliminary objection. The Plaintiff’s counsel was in this Court on the lost adjourned, he has not filed a counter affidavit and has not appeared in this Court. Obviously, he has no objection to this application, like the rest of the respondents.
In the circumstance, the preliminary objection is sustained. This case being statute barred, this Court has no jurisdiction to hear this matter. The proper Order to make where a Court has no jurisdiction to entertain a matter is to strike out the matter.
Consequently, this suit is struck out for lack of jurisdiction.”
Signed Hon. Judge
29/6
From the ruling of the trial Judge above, it is clear that even though the application before the Court was for dismissal of the action firstly for being statute barred and secondly on the ground that the 1st Defendant is not a juristic person, the decision of the Court striking out the suit was premised on the first ground, that is, that the suit is statute barred.
I am accordingly in agreement with the Appellant’s Counsel that the preliminary objection was sustained by the trial Judge on the ground alone that the suit is statute barred.
It may be that the learned Judge was of the opinion that having so held it was not necessary to deliberate on the 2nd ground. Whatever the reason, the order of the Court striking out the suit was stated to be for the reason that the suit is statute barred.
It is therefore incorrect for the 3rd Respondent’s Counsel to contend that having failed to appeal against the trial judge’s decision that the 1st Respondent is not a juristic person capable of suing and being sued, the present appeal is merely academic and cannot be sustained, the 1st Respondent not being juristic.
In order to determine whether the grounds in the Notice of Appeal sustain this appeal, the Notice of Appeal, I note, complains in the first ground of lack of fair hearing by denying his representative who was present in Court, a hearing.
The 2nd ground alleges that the trial Judge erred in law when he declined jurisdiction on the ground that the Appellant’s suit is statute barred.
These grounds, I hold, are competent to sustain the present appeal. I accordingly dismiss the Preliminary Objection.
To recapitulate, the issues for determination raised by the Appellant are the following:
1. Whether the learned Judge did not deny the Plaintiff the right to fair hearing as enshrined in Section 36 of the 1999 Constitution.
2. Whether the learned trial Judge rightly declined jurisdiction on the ground that the Plaintiff’s suit is statute barred.
Those raised by the 3rd Respondent are as follow:
1. Whether the Deputy Sheriff (1st Defendant/1st Respondent) can be sued on 24th July 2007 for the sale conducted by him in his official capacity on 31st January 2007.
2. Whether the Appellant was denied his right to fair hearing.
I shall adopt, as the issues that arise for determination in this appeal, those raised by the Appellant.
The 1st issue for determination is:
“Whether the learned Judge did not deny the Plaintiff (Appellant) the right to fair hearing as enshrined in Section 36 of the 1999 Constitution.”
Arguing this issue, Counsel to the Appellant submits that on the day in question, the Appellant was present in Court by proxy. After the 1st Respondent’s Counsel moved his application and other Counsel were given opportunities to respond, the Appellant’s representative should have been accorded the same opportunity, which was not done. It is possible that the representative may have explained the absence of the Appellant and his Counsel or requested for an adjournment, or even proceeded. The lower Court, by proceeding to deliver its ruling without calling on the Appellant’s representative to respond, denied the Appellant a fair hearing, rendering the proceedings a nullity.
He also submitted that the rule of fair hearing, as enshrined in Section 35 of the 1999 Constitution, is the quintessence of decision making and consequently the hall mark of justice. A breach of this,impacts on the complainant’s constitutional right of fair hearing. The principle of audi alterem partem is that a judge must hear both sides of a dispute. He cited the case of Garba v University of Maiduguri (1986) 1 NWLR Part 18 Page 530.
The 3rd Respondent’s Counsel, who also raised this issue, submitted that the Appellant neither filed any counter affidavit or written address in opposition to the Preliminary Objection as required by Orders 15 Rule 1(3) and 32 Rules 1 and 4 of the Kaduna State High Court (Civil Procedure) Rules 2007, to enable him proffer oral argument at the hearing of the Preliminary Objection. In consequence, the representative of the Appellant could not have raised any objection to the application. A party, who has failed to follow the procedure provided, cannot be heard in opposition.
Citing the case of ANPP v INEC (2010) 13 NWLR Part 1212 Page 549, he submitted that a party who absents himself from Court on a day fixed for a motion cannot be heard to challenge the hearing of that motion on the ground that his right to fair hearing has been breached.
Counsel also submitted, citing the case of Audu v INEC (2012) 13 NWLR Part 1212 456, that where a party to a suit has been accorded a reasonable opportunity of being heard and for no justifiable cogent reason neglects to attend the sitting of the Court, he cannot complain of denial of fair hearing.
In the case of Garba v University of Mdiduguri (1986) 1 NWLR Part 18 Page 530, cited by the Appellant’s Counsel, it was held by the Supreme Court, per Nnamani JSC at Pages 601-602 Paragraphs H-A, that:
“The audi alteram partem rule stipulates that each party must be given an opportunity of stating his case and answering if he can any arguments put forward against it. See Cooper v. Wandsworth Board of Works 14 C.B. (N.5.) 180. The rule requires that a person liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so as to give him an opportunity to make representations, and effectively prepare his own case and to answer the case he has to meet. It is therefore essential that the person involved be given prior notice of the case against him so that he can prepare to meet that case.”
The question in this case is whether the Appellant was given an opportunity of stating his case or whether having been given that opportunity, he failed so to do.
The record of the lower Court shows that on the 4th of June 2009, Counsel to all the parties were present when the Court adjourned hearing on the preliminary objections filed by the 1st, 3rd and 4th Respondents challenging the jurisdiction of the Court, to 29th of June 2009. On that date, viz 29th June 2009, while the 1st, 2nd, 3rd and 4th Respondents were represented by Counsel, the Appellant was neither present nor represented by Counsel. He was, however, represented by one Tijani Mala, who apparently did not speak English, as the proceedings of the day were interpreted to him.
It is true, as complained by the Appellant that even though the Counsel to the 2nd, 3rd and 4th Respondents were asked for their response to the preliminary objection of the 1st Respondent, the representative of the Appellant was not. The question is whether this act of the trial Judge amounted to denial of fair hearing to the Appellant.
It certainly would have accorded respect to the representative of the Appellant for the Court to have sought his view. I, however, hesitate to declare this act by the learned Judge a denial of fair hearing. This is because, as submitted by the learned Silk, Orders 15 Rule 1(3) and 32 Rules 1 and 3 of the Kaduna State High Court (Civil Procedure) Rules 2007 mandates a party seeking to oppose an application, to file a counter affidavit and/or a written address in opposition to the application. This, the Appellant did not do. Also, on the date fixed for hearing of the applications, neither the Appellant nor his Counsel were in Court. The Appellant can therefore not be heard to complain of lack of fair hearing.
It was held in the case of Bill Construction Co Ltd v Imani & Sons Ltd/Shell Trustees Ltd (2006) NWLR (Pt. 1013) 1 at 14, Paragraphs D-E per Onnoghen JSC that it is settled law that where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utilize the same, he cannot later be heard to complain that his right to fair hearing has been breached.
The Appellant, I hold, was given an opportunity to present his case and cannot be heard to complain that his right of fair hearing was breached.
I accordingly resolve the 1st issue for determination against the Appellant.
The 2nd issue for determination is:
Whether the learned trial Judge rightly declined jurisdiction on the ground that the Appellant’s suit is statute barred.
Arguing this issue, Appellant’s Counsel submitted that the lower Court misconceived the tenor and spirit of Sections 47 and 48 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990 and had a mistaken view of the purport of the Public Officers Protection Act Cap 379 1990. He submitted that the crux of the 1st Respondent’s Preliminary Objection is purely an issue of law to which no affidavit evidence is required. In any objection hinged on the ground of the Statute of Limitations, the Writ of Summons and the relevant provisions of the statute suffice. He cited the case of Egbe v Adefarasin (1987) 1 NWLR Part 47 Page 1. The trial Judge, Counsel submitted, was in error to have upheld the 1st Respondent’s objection as a matter of course without subjecting the provisions of the said Statute and the Public Officer’s Protection Act to a thorough legal scrutiny.
Counsel denied that the suit was statute barred, or caught by the Public Officer’s Protection Act. The major relief sought by the Appellant in the lower Court was that the Court should declare him the bonafide and beneficial owner of the property in dispute having lawfully acquired the same and to set aside the order attaching his property on the ground of illegality and unconstitutionality, other prayers being ancillary reliefs. It is thus not to set the same aside on the ground of any material irregularity as envisaged by Section 47 of the Sheriffs and Civil Process Act.
That section, he said, contemplates only the parties to the suit pursuant to which the auction was conducted and not a third party or interested party. The Appellant was neither the Judgment Debtor nor the Judgment Creditor in Suit No. KDH/KAD/335/05. He distinguished the case of Sale v Monguno (2006) 15 NWLR Part 1001 26 cited by the 1st Respondent’s Counsel in the lower Court, contending that the property attached in this case was not that of the Judgment Debtor in Suit No KDH/KAD/335/05 but that of the Appellant, who is the bona fide legal owner of the property. Furthermore, the 1st Respondent being the cause of the illegality, necessitating the suit before the lower Court, should not be allowed to benefit from his illegality by relying on the said statutes.
Citing the case of CBN v Okojie (2004) 10 NWLR Part 882 Page 523, he submitted that the Public Officer’s Protection Act is designed to protect a public officer who acts in good faith and not for acts done in abuse of office with no semblance of legal justification. In addition, the order attaching the Appellant’s property which the Appellant sought to set aside in the lower Court, is an error committed in a purely judicial capacity which relief the said Act does not apply to bar. He cited the case of FRN v Ifegwu (2003) 15 NWLR Part 842 Page 113 at 188.
In his response, the learned Silk submitted that the action of the Appellant before the trial Court was a challenge to the sale of the property to the 2nd Respondent. The action is thus not a challenge to a judicial decision.
On the submission that the Public Officers Protection Act did not apply because the 1st Respondent did not act in good faith, the learned Silk submitted that it is only when a suit is instituted within three months after the act complained of had arisen, that the Court will inquire into whether or not it was in good faith. Once it is instituted outside the period of limitation, the action is incompetent and the Court will not inquire into whether it was done in good faith or not. The sale was made by the 1st Respondent on 31st January 2007. The Appellant did not challenge the sale until 24th July 2007.
In the determination of the propriety of the trial Court’s decision of whether the suit was statute barred, I set out the provisions of the Public Officer’s Protection Act, Cap P41 contained in Volume 14 of the Laws of the Federation of Nigeria 2004 and Sections 47 and 48 of the Sheriffs and Civil Process Act Cap 56 Volume 14 Laws of the Federation 2004 which were relied upon by the 1st Respondent’s Counsel in the lower Court as barring the suit.
PUBLIC OFFICERS PROTECTION ACT CAP P41 LAWS OF THE FEDERATION OF NIGERIA 2004
SECTION 2
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act Of 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 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;
b. whenever in such action a judgment is obtained by the defendant, it shall carry the right to recover from the plaintiff all the costs which the defendant has properly incurred in defending such action;
c. when the proceeding is an action for damages, tender of amends before the action was commenced may, in lieu of or in addition to any other defence, be pleaded; and if the action was commenced after the tender, or is proceeded with after payment into court of any money in satisfaction of the plaintiffs claim and the plaintiff does not recover more than the sum tendered or paid, he shall not recover any costs incurred after the tender or payment, and the defendant shall be entitled, as from the time of tender or payment, to all costs which he had properly incurred in defending such action; but this provision shall not affect costs on any injunction in the action;
d. if in the opinion of the court the plaintiff has not given the defendant a sufficient opportunity of tendering amends before the commencement of the proceeding, the court may award to the defendant all the costs which he has properly incurred in defending the action.”
SHERIFFS AND CIVIL PROCESS ACT
SECTION 47
[SETTING ASIDE SALE FOR IRREGULARITY]
“At any time within 21 days from the date of the sale of any immovable property, application may be made to the court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the court that he has sustained substantial injury by reason of such irregularity.”
SECTION 48
[WHEN SALE BECOMES ABSOLUTE.]
“If no such application as is mentioned in section 47 of this Act is made, the sale shall be deemed absolute. If such application be made and the objection be disallowed the court shall make on order confirming the sale; and in like manner, if the objection be allowed, the court shall make an order setting aside the sale for irregularity.”
In determining whether a suit is statute barred or not, the Respondent’s Counsel has submitted that the Court must look at the Writ of Summons/Statement of Claim.
It was held in the case of Agi v Eno (2010) 5 NWLR (Pt. 1188) Page 626 at Page 647 Para B-C per Ngwuta JCA (as he then was) that it is the cause of action, as determined from the originating process and statement of claim, that is relevant for the determination of whether a suit is time barred. A court cannot go outside the originating process and determine the accrual of the cause of action.
It was similarly held in the case of Egbe v Adefarasin (1987) LPELR 1032, cited by the 3rd Respondent’s Counsel, per Oputa JSC at Page 32 Para C that one determines the period of limitation by looking at the Writ of Summons and the Statement of Claim.
In the instant case, the decision of the lower Court, quoted above that the suit was barred by statute was simply determined by the absence of a counter affidavit or written address from the Appellant, as being consistent with a lack of objection to the application. There was no reference by the Court to the Writ of Summons or Statement of Claim filed by the Appellant.
By the authorities above, the only manner of determining whether the instant suit was barred by statute, at this stage, is by reference to the pleadings of the Appellant. The lower Court, I therefore hold, was in error to have struck out the Appellant’s suit as being barred by statute, without an examination of the Writ of Summons and Statement of Claim filed by the Appellant.
Having so held, this Court should, by the combined provisions of Section 15 of the Court of Appeal Act 1976 and Order 19 Rule 11 of the Court of Appeal Rules 2011, determine from the Appellant’s Statement of Claim, whether the protection afforded by the Statutes is available to the 1st Respondent to bar the action.
The Statement of Claim of the Appellant (contained on Pages 4-10 of the Record of Proceedings), in summary, has complained of the illegality of the act of the 1st Respondent in auctioning the property when the same property had been auctioned by him (1st Respondent) to his vendor. He sought, inter alia, for a declaration by the Court that, being the first purchaser in time, he is the bona fide owner and that the subsequent sale be declared null, void and of no effect. Further, for a declaration that the acts of the 1st, 3rd, 4th and 5th Respondents constitute a trespass. He sought, in addition, for an order of perpetual injunction restraining all the Respondents, their agents and privies from laying claim, trespassing or otherwise disturbing his possession of the property.
The Appellant has cited the case of Central Bank of Nigeria v Okojie (2004) 10 NWLR Part 882 Page 488 in support of his contention that as the act of the 1st Respondent was done in bad faith, he is not entitled to the protection of the statute.
In that case, it was held by the Court of Appeal per Galadima JCA (as he then was) at Page 523 Para A-C as follows:
“Two conditions must exist to avail the appellants the protection of section 2(a) of the Public Officers Protection Law. First, it must be established that the person against whom the action is commenced is a public officer, second, the act done by the appellant in respect of which the action was commenced must be an act done in pursuance or execution or intended execution of any law or of any public duty or authority. See Ekeogu v. Aliri (1990) 1 NWLR (Pt. 126) 345.
The Public Officers’ Protection Law is designed to protect the officer who acts in absolute good faith and does not apply to acts done in abuse of office and with no semblance of legal justification.”
Also cited by learned Counsel is the case of Federal Republic of Nigeria v Ifegwu (2003) 15 NWLR Part 842 Page 113 at 188 Para F-H where the Supreme Court, per Uwaifo JSC held as follows:
“At this stage, I think I can briefly dispose of the argument in respect of section 2 of the Public Officers Protection Act (Cap. 379) Laws of the Federation of Nigeria relied on by learned Senior Advocate that the respondent’s action was statute barred. It would be argument carried too far to say that the Public Officers Protection Act applied to bar a relief sought in connection with an error committed in purely judicial capacity. It does not. The remedy sought is to enforce a constitutional right contravened by a court acting judicially. The time within which to seek that remedy is not subject to the time limit prescribed by the Public Officers Protection Act. There is no reason why it should. If it did, it would likely conflict with court rules.”
The question from the foregoing is whether the 1st Respondent was entitled to the protection of these Statutes. It has been contended by the 3rd Respondent that the process to have been filed by the Appellant to set aside the sale should have been an application filed within 21 days of the sale, pursuant to Sections 47 and 48 of the Sheriffs and Civil Process Act and not by filing a Writ of Summons, and that having not done so, he is barred from invalidating the sale.
The Appellant has cited the case of Saleh v Monguno (2006) Part 1001 15 NWLR Page 26. I find instructive the judgment of His Lordship Tabai JSC where he held at P59-60 Para E-E as follows:
“After all, law and including rules of court is not and should not be regarded as an end in itself: it is only a means to an end which is justice. The Courts will not therefore insist on strict compliance with any particular rules of court if such strict application would inflict outright injustice. This has been the focus of this court over the years. In Oloba v Akereja (1988) 2 NSCC 120 at 136, this court, per Oputa JSC, emphasized the very purpose of rules of court as follows:
“All rules of court are made in aid of justice. That being so, the interest of justice will have to be given paramountcy over any rule, compliance with which will lead to outright injustice”
Thus in its resolve to construe statutes and rules of court only for the ends of justice, this court has articulated in a number of cases that whenever a plaintiff establishes a wrong that has been inflicted on him by a defendant, he should be granted a remedy in spite of defects and other inadequacies as to form and contents of the document by which he initiates and sets out his claim. This was eloquently demonstrated in the earlier case of Aliu Bello & 13 Others v. Attorney General of Oyo State (1986) 5 NWLR (Pt. 45) 828. In that case, this court, per Oputa, JSC, of page 886 restated the principle thus:-
‘Law and all its technical rules ought to be but a hand maid of justice and legal inflexibility (which may be becoming of law) may, if strictly followed, only serve to render justice grotesque or even lead to outright injustice. The court will not endure that mere form or fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the case before it …’
And at page 871, Karibi-Whyte restated the principle more pointedly when he said:-
‘I think it is erroneous to assume that the maxim ubi jus ibi remedium is only on English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the courts to provide a remedy whenever the plaintiff has established a right…’ ”
The response of the Supreme Court to the submission of the learned SAN above is that the form an action is brought is not material where there has been a wrong perpetrated, as the Appellant has averred. For, where there is a wrong, there must be a remedy. Form, cannot therefore defeat a party who has been wronged.
Furthermore, and as contended by the Appellant, Sections 47 and 48 of the Sheriffs and Civil Process Act, in my view, contemplates an application to set aside a sale by the primary parties to the dispute. It cannot, I hold, be extended to apply to a third party, as the Appellant, who is a stranger to the proceedings in which the property was attached and who has no knowledge of the alleged sale.
Sections 47 and 48 of this Act, I therefore hold, cannot be a bar to the institution of the suit filed by the Appellant before the lower Court.
In addition to the foregoing and of the utmost importance is the conduct of the 1st Respondent, as averred by the Appellant in his Statement of Claim. Can the 1st Respondent, who is alleged to have sold property in execution of a Judgment in a suit No KDH/KAD/699/98, sell the same property in execution of a subsequent Judgment in another suit No. KDH/KAD/335/2005, yet be said to be acting in good faith and with legal justification? I must answer in the negative.
In answering this question as I have, I bear in mind the fact that it is not the duty of the Court at this stage to determine the merits of the Appellant’s case. Suffice it to state at this stage, limited as I am to the pleadings filed by the Appellant, that the facts averred by the Appellant in his Statement of Claim, and which facts the trial Judge should have had recourse to, do not entitle the 1st Respondent to the protection afforded by either of the Statutes.
Even if the act be alleged to be a judicial error, the protection afforded by these Statutes, by the authority of Federal Republic of Nigeria v Ifegwu Supra, is not available, on the Appellant’s pleadings, to the 1st Respondent.
By the authorities of CBN v Okojie and Federal Republic of Nigeria v Ifegwu Supra and by the averments in the Appellant’s Statement of Claim, the 1st Respondent, I hold, cannot take refuge under either the Public Officers Protection Act or Sections 47 and 48 of the Sheriffs and Civil Process Act Supra.
It must also be born in mind that the reliefs sought by the Appellant are not solely against the 1st Respondent but the other Respondents. It was therefore wrong for the trial Judge, to have on the ground that the case of the Appellant against the 1st Respondent is statute barred, strike out the entire case of the Appellant.
Had the learned Judge considered the Appellant’s Statement of Claim, in his determination of whether the case was statute barred, as he was bound by law to do, he would almost certainly have divested the 1st Respondent of the protection afforded him under Section 2 of the Public Officers Protection Act and Sections 47 and 48 of the Sheriffs and Civil Process Act Supra. Nothing but a subjection of the Appellant’s Statement of Claim to scrutiny vis a vis the said Statutes could have justified the decision of the Court.
The lower Court, I accordingly hold, was in error to have declined jurisdiction on the ground that the Appellant’s suit is statute barred.
This error, I hold, occasioned a miscarriage of justice.
Having resolved this issue for determination in favour of the Appellant, I hold that this appeal has merit. I set aside the decision of Hon. Justice Isa Aliyu given on the 29th day of June 2009 in which he upheld the preliminary objection of the 1st Respondent and struck out the Appellant’s case for lack of jurisdiction. I remit this case back to the High Court of Kaduna State for trial but before another Judge of the High Court.
ISAIAH O. AKEJU, J.C.A.: My learned brother, Oludotun Adebola Adefope-Okojie JCA gave me the opportunity of reading in advance the judgment just delivered. I agree with the reasoning of my learned brother and the conclusion that the appeal is meritorious. I consequently allow the appeal and I abide by the consequential order in the lead judgment.
AMINA AUDI WAMBAI, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, Oludotun Adebola Adefope-Okojie, JCA, His lordship has thoroughly and efficiently dealt with the issues placed before the court for determination. I also agree that the case file be returned to the Chief Judge of Kaduna State for re-assignment to another Judge for trial.
Appearances
DR. K. A. Adedokun with W. L. Ibrahim and Y.Y. Bambale (Jnr)For Appellant
AND
Yunus Ustaz Usman (SAN) with Nawa Aisha Usman for the 3rd Respondent
1st, 2nd, 4th and 5th Respondents unrepresented.For Respondent
