ARCH DAVID C. OGBOLUMANI & ORS v. THE GOVERNOR, DELTA STATE & ORS
(2018)LCN/12240(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/B/40/2009
RATIO
COURT AND PROCEDURE: WHEN AN ACTION IS STATUTE BARRED
“It is therefore trite that the issue of an action being barred by the limitation is determined by looking at the Writ of Summons and the Statement of Claim alleging the wrong said to have been committed giving rise to the cause of action and when it was committed…The issue of statute of limitation is very fundamental. It touches on jurisdiction of the Court. It follows therefore that where an action is statute-barred, the consequence is that the right of action becomes extinguished by law and unenforceable by a Court action forever, so that the Claimant remains without a remedy and his claims would be dismissed. See EMIATOR V. NIGERIA ARMY (1999) 12 NWLR (PT. 631) 362.” PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
1. ARCH DAVID C. OGBOLUMANI
2. MRS. CECILIA N. OGBOLUMANI
3. MRS. NGOZI OGBOLUMANI AKABOGU
4. MRS. CHINWE HABILA JOSHAK (Nee Ogbolumani)
5. MRS. OBIANUJU OSADEBAY (Nee Ogbolumani)
6. MRS. OFUNE NWOKOBIA (Nee Ogbolumani)
7. ANTHONY OGBOLUMANI
8. MRS. OKWUACHI OBIORA (Nee Ogbolumani) Appellant(s)
AND
1. THE GOVERNOR, DELTA STATE
2. THE HON. COMMISSIONER FOR LANDS, SURVEYS AND URBAN DEVELOPMENT, ASABA
3. THE PERMANENT SECRETARY, MINISTRY OF
LAND, SURVEYS AND URBAN DEVELOPMENT, ASABA
4. THE HON. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, ASABA
5. ONOME G. IVHURIE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment):
The Appellants in this appeal as Claimants/Plaintiffs at the trial Court took out a Writ of Summons against the Respondents as Defendants jointly and severally as per their Statement of Claim (See pages 1 – 9 of the Record). The 1st – 4th Respondents filed a motion on the 9th of May, 2007 and prayed the Court to strike out the suit for want of jurisdiction the suit being statute-barred by the provision of Section 2 (a) of the Public Officers Protection Law Cap 137, Laws of Bendel State of Nigeria applicable to Delta State among other reliefs.
After hearing Counsel for the respective parties in respect of the Preliminary Objection, the learned trial Judge in a considered Ruling on the 6th day of November, 2007, upheld the Preliminary Objection and struck out the suit for want of jurisdiction.
Dissatisfied with that Ruling, the Appellants commenced this appeal by a Notice of Appeal filed on the 19th of November, 2007. One ground of appeal was incorporated in the Amended Notice of Appeal.
SUMMARY OF FACTS:
The land of the Appellants which is the subject matter of this appeal, is lying and situate between the New Asaba/Agbor Road, Asaba and Old Asaba/Agbor Road, Asaba and covered by the acquisition of Government published on the 8th day of October, 1991 in the Legal Notice.
The Delta State Government took over possession of those lands, paid compensation during the lifetime of Barrister B.O.I. Ogbolumani, the father of the Appellants without objection and the Delta State Government laid out the entire land and allocated various plots to Government Officers, Government Establishments, Government Institutions and to various individuals and corporate bodies for the development of the Asaba Capital Territory. The 5th Respondent was allocated one of such plots in Certificate of Occupancy No. DISR 10359 dated 3rd day of September, 2004, registered as No. 25 at page 25 in Volume C094 of the Land Registry Asaba.
On the 11th day of April, 2007, the Appellants initiated this action to challenge both the acquisition of the land by the Delta State Government in 1991 and the allocation of the plot of land to the 5th Defendant by the Government of Delta State in 2004. The Writ of Summons and the Statement of Claim of the Appellant are at pages 1 ? 9 of the Record of Appeal, in which the Appellants challenged the grant of the Certificate of Occupancy to the 5th Respondent and claimed that their land was not part of the land acquired by the Delta State Government in 1991. The 5th Respondent filed his Statement of Defence, setting out his defence of the action at pages 76 – 82 of the Record of Appeal.
Learned Counsel for the Appellants O. Afolabi Esq formulated a sole issue for determination thus:
“Whether the learned trial Judge was right in law in striking out the suit of the Appellant on the ground that the suit was caught by Section 2(a) of the Public Officers Protection Law of Bendel State and as applicable to Delta State.”
The 1st – 4th Respondent also formulated a sole issue for determination as follows:
“Was the learned trial Judge not right when he held that the action of the Claimants/Appellants against the 1st – 4th Respondents/Respondents was statute-barred by virtue of Section 2(a) of the Public Officers Protection Law of Bendel State as applicable to Delta State.”
The 5th Respondent formulated a sole issue similar to those formulated by the Appellants and the 1st – 4th Respondents. It states:
“Whether in the circumstances of this case, the trial Court was justified in striking out the claim of the Appellant on the ground that it offends Section 2 (a) of the Public Officers Protection Law of Bendel State as applicable to Delta State.”
Taking the sole issue, Learned Counsel for the Appellants referred to his claim and contended in summary that the claim of the Appellants is for recovery of land and therefore Section 2(a) of the Public Officers Protection Law of Bendel State will not be applicable. He argued that the said Section 2(a) does not apply to cases of recovery of land, breach of contract, claim for work and labour done. He cited FED. GOVERNMENT OF NIGERIA V. ZEBRA (2003) 1 MJSC Page 20 Para D. SALAKO V. L.E.D.B. AND ANOR. 20 N.L.R. 169 etc.
Counsel posited that Appellants became aware of the purported acquisition in 1999 and that the action at the lower Court commenced on the 11th day of April, 2007.
Reacting to the foregoing, Counsel for the 1st – 4th Respondents submitted that from the claims of the Appellants, their grievance against the 1st – 4th Respondents is the act of their issuance of Certificate of Occupancy and acquisition of land in 1991. He argued that the action of the 1st ? 4th Respondents were purely administrative action and has nothing to do with recovery of land as presented by the Appellants.
Counsel argued that it was clear from the Appellants’ claims that the Delta State Government acquired the land in 1991. It is immaterial, he submitted, that the Appellants claimed not to be aware of the acquisition until 2007 when they sued the Respondents challenging the acquisition.
Counsel posited that from 1991 – 2007 is a period of 16 years which is above the 12 years prescribed by statute. He cited INEC V. OGBADIBO LOCAL GOVT. & 13 ORS (2016) 3 NWLR (Pt. 1498) Page 167.
Learned Counsel for the 5th Respondent argued along this line.
In determining this appeal, I shall make use of the sole issue formulated by Counsel for the 5th Respondent for the simple reason that it be better couched even though similar to the other issues formulated by the other Counsel.
It is important to reproduce the said Limitation Law since this appeal revolves round it. Section 2 (a) of the Public Officers Protection Law of the defunct Bendel State and applicable to Delta State, provides:
“Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance of execution or intended execution of any law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provision 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 the case of a continuance of damage or injury, within three months next after ceasing thereof.?
In dealing with this issue of whether or not the present action was caught by the statute of limitation, the question that readily comes to mind is, how does one determine the period of limitation in a particular case?
In response to the above question, Oputa JSC in EGBE V. ADEFARASIN (1985) 1 NWLR (PT. 3) 549 cited in WILLIAMS V. WILLIAMS (2008) ALL FWLR (PT. 433) Pg. 1257 stated:
“The answer is simple, by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action”
It is therefore trite that the issue of an action being barred by the limitation is determined by looking at the Writ of Summons and the Statement of Claim alleging the wrong said to have been committed giving rise to the cause of action and when it was committed.
It may therefore be pertinent to look at the claim of the Appellant at the trial Court.
The relevant paragraphs are paragraphs 13 and 18 where they pleaded:
(13) “That the said land was not acquired by the Delta State Government in 1991 when the state was created but until after the death of the said late Barrister B.O.I. Ogbolumani on January 23rd, 2000.
(18) The Plaintiffs vehemently aver that the 1st, 2nd, 3rd Defendants purportedly allocated the said land to the 5th Defendant who purportedly obtained a Certificate of Occupancy No. 10359 dated 3/9/2004.”
From the above paragraphs of the Statement of Claim, it was obvious that there was an acquisition by the Delta State Government in 1991. That they were aware of the allocation to the 5th Respondent made in 2004 and covered by Certificate of Occupancy No. 10359 dated 3rd September, 2004.
It follows therefore that a challenge of the action of the Military Governor in revoking the land on the ground that the acquisition is invalid, can only come within the period of three months from the date of acquisition. It is not enough for the Appellants to plead that the land in question was not acquired in 1991 when the face of the Edict Number DSL No. 1 of 1991 described all the land lying and situate between the new Agbor/Asaba Road, Asaba. The Appellants’ attack on the allocation made in 2004 to the 5th Respondent was a challenge of Public Officers action of allocation of government land to the 5th Respondent.
The action of the 1st – 4th Respondents were purely administrative action and has nothing to do with recovery of land as argued by the Appellants in their brief.
The Appellants’ grievance against the 1st – 4th Respondents being their act of issuance of Certificate of Occupancy and acquisition of the land in 1991, by 2007 when the Appellants took out the Writ, it was over the limitation period provided by the said Limitation Law. From 1991 – 2007 was a period of 16 years, which is above the 12 years prescribed by statute. See INEC V. OGBADIBO LOCAL GOVERNMENT & 13 ORS (2016) 3 NWLR (PT. 1498) Pg. 167.
The legal right to enforce an action is not a perpetual right but a right generally limited by statute.
Going by paragraph 13 of the Appellants’ Statement of Claim, the cause of action arose in 1991. Records show that this suit commenced in 2007 at the Court below, 16 years after the cause of action accrued. This is clearly contrary to the law governing limitation. See IWEKA V. S.C.O.A. (NIG) LTD (2000) 7 NWLR (PT. 664) 325, AREMO V. ADEKANYE (2000) 2 NWLR (PT. 664) at 277.
The issue of statute of limitation is very fundamental. It touches on jurisdiction of the Court. It follows therefore that where an action is statute-barred, the consequence is that the right of action becomes extinguished by law and unenforceable by a Court action forever, so that the Claimant remains without a remedy and his claims would be dismissed. See EMIATOR V. NIGERIA ARMY (1999) 12 NWLR (PT. 631) 362.
ONUMALOBI V. N.N.P.C. (1999) 12 NWLR (PT. 632) at 639.
In the same breath, the issue of the validity of the acquisition having been lost and cut up by the Limitation Act, the subsequent allocation of that same land to the 5th Respondent cannot create a new cause of action and a challenge of the allocation in the circumstances of this case cannot be said to be for recovery of land. It is purely a challenge of the action of a Public Servant.
While striking out the case for being statue-barred, the learned trial Judge stated thus:
“Of note are paragraphs 13 and 18, from the above two paragraphs, it is clear that the cause of action obviously arose outside the three months limit placed on action against Public Officers Protection Law and I so hold. In view of this, the preliminary objection succeeds and this action is struck out for want of jurisdiction.”
I entirely agree with the above findings and have no justification to interfere with same.
The action against the 1st – 4th Respondents is purely an administrative action and not recovery of land, the subsequent allocation to the 5th Respondent did not in any way create a new cause of action, challenging the allocation also cannot be for recovery of land.
The action having been commenced outside the period stipulated by law, is caught up by the said Section 2(a) of the Public Officers Protection Law Cap 137, Laws of the defunct Bendel State of Nigeria, applicable to Delta State.
The suit at the Court below having been caught up by the said Limitation Law, it robbed the learned trial Judge of jurisdiction to hear the suit.
In the premise, the sole issue is resolved against the Appellants and in favour of the Respondents. This appeal is bereft of merit and is hereby dismissed. The Ruling of K.O. Okpu, J, of the Asaba Division of the Delta State High Court in Suit No. A/68/2007, delivered on the 16th of November, 2007, striking out the case for want of jurisdiction is hereby affirmed.
I make no order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother CHIOMA EGONDU NWOSU-IHEME JCA. I am in complete agreement that the sole issue of whether or not the action was caught by the statute of limitation making the claim unenforceable by the Courts must be resolved in favour of the 1st-4th Respondents. Where as in this case the Government acquired private property, it is the duty of the owner of the land to file an action against that executive/administrative decision within 3 months. Any action filed after the limitation period would be statute barred.
The cause of action here is the administrative/executive decision of the 1st -4th Respondents in acquiring the land of the Appellants. This is quite different from an action for trespass and recovery of land in which limitation period starts to run in most cases after the 12th year of trespass or so. That distinction was made by the learned trial judge and this Court cannot help but affirm it. The ruling of Hon. Justice K.O. Okpu of the Delta State High Court delivered on 16/11/07 in Suit No A16812007 striking out the claims of the Appellants for want of Jurisdiction is hereby affirmed. I abide by the order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I read in draft the lead Judgment just delivered by my learned brother CHIOMA EGONDU NWOSU-IHEME, JCA. (Ph. D).
My Lord has painstakingly gone through the sole issue in this area with a fine tooth comb. I am in total agreement with the issue raised and adopted and also with the reasoning and conclusion arrived thereat. I too resolve the sole issue in favour of the Respondents and against the Appellants as it is hereby also dismissed by me.
The Ruling of K.O. Okpu, J, of the Asaba Division of the Delta State High Court in suit No. A/68/2007, delivered on the 16th of November. 2007, striking out the case for want of jurisdiction is hereby affirmed.
I make no order as to costs.
Appearances:
E. O. Afolabi with him, S. O. Atoe and I. I. Irele-Ifijeh. For Appellant(s)
S. O. Monye Esq., (DCL) M.O.J, Delta State, with him, R. T. Erinle for 1st ? 4th Respondents.
O. J. Oghenejakpor with him, R. E. Urhibo for 5th Respondent.
F
