EJIGBO LOCAL GOVERNMENT & ORS v. MR. ADEMOLA ADEPEGBA & ORS
(2019)LCN/13896(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/AK/50/2018
RATIO
PRACTICE AND PROCEDURE: STATUTE BAR: DEFINITION: NATURE
A statute barred action is on a class of its own, if you like, sui generis. This is because it goes to the jurisdiction of the Court. An issue of jurisdiction can be raised at any time and it goes beyond issues of law classified as demurer and prohibited. In a matter involving limitation law as in this case, once the action has run its course, it takes away every right to seek remedy ever. There can therefore be no recourse to such requirement as hearing on the merits as alluded to by learned counsel to the plaintiffs.
Indeed the Supreme Court per NGWUTA, JSC in the case of A C N & ANOR V INEC & ORS (2013) 13 NWLR, PT 1370, 161 puts it very beautifully when it held:
A limitation statute, once it has run out, takes away the right to seek remedy in the enforcement of the accrued right in Court, leaving the right bare and untouched. The right remains but the means to enforce it extinguished for all times. See IBRAHIM V JSC, KADUNA STATE (1998) 14 NWLR, PT 584, 1 SC where this Court, per Iguh, JSC said: ?It suffices to state that a statute of limitation ?.. removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and this leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute barred, that is to say, if such a cause of action is instituted outside the statutory period allowed by such law. See also the case of P.N UDOH TRADING CO LTD V ABERE (2001) FWLR, PT 57, 900 SC.? PER PATRICIA AJUMA MAHMOUD, J.C.A.
PRACTICE AND PROCEDURE: STATUTE BAR: EFFECT OF AN ACTION BEING STATUTE BARRED
Also see the case of BUREMOH V AKANDE (2017) LPELR ? 41565 (SC). The effect of a limitation law on the cause of action therefore is that the Court lacks the jurisdiction to entertain the action. Jurisdiction has variously been described as the fiat, the license, the life blood, the stamp of authority which necessarily enures to the Court and empowers it to adjudicate. Due to the fundamental nature of the issue of jurisdiction, litigants and parties are at liberty to competently raise it even orally and for the first time by any of the parties or suo motu by the Court and at whatever stage of the adjudication process. See the cases of OLORIODE V OYEBI (1984) 5 SC I, PETROJESSICA ENTERPRISES LTD V LEVENTIS TECHNICAL CO LTD (1992) 6 SC, PT II 1 and LADO & 43 ORS V CPC & 53 ORS (2011) 12 SC, PT III, 113. PER PATRICIA AJUMA MAHMOUD, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. EJIGBO LOCAL GOVERNMENT
2. HIS ROYAL HIGHNESS, THE OGIYAN OF EJIGBO
3. MR. MUHAMMED RAJI QASIM ADEKUNLE AKANO Appellant(s)
AND
1. MR. ADEMOLA ADEPEGBA
2. MR. TAJUDEEN OJEWALE
3. MR. FATAI AYANTUNJI
4. MR. BASHIR ADETUNJI
5. MR. RASAK OLADEJI
6. MR. KAZEEM ALADE ADEPOJU
(For themselves and on behalf of Okikiokun family of Owu-Ile, Ejigbo Local Government, Osun State)
7. GOVERNOR OF OSUN STATE
8. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, OSUN STATE
9. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS, OSUN STATE Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Osun State sitting in Ejigbo and delivered on the 14th December, 2016 by Hon. Justice A.A. Aderibigbe.
The respondents who were the plaintiffs in the Court below had in their writ of summons jointly and severally claimed among other reliefs a declaration that the next ruling house to produce the next Olowu of Owu-Ile in Ejigbo Local Government is the Okikilokun of Owu-Ile to which the 6th defendant, MR Muhammed Raji Qasim Adekunle Akano (who had been approved as the Olowu of Owu-Ile) is not a member. This writ of summons was taken out about eight months after the installation of the Olowu of Owu-Ile, the 3rd appellant in this appeal but the 6th defendant on the writ. The appellants as defendants in the Court below filed a Preliminary Objection challenging the competence of the suit for being statute barred among other contentions on the grounds that the 1st ? 4th defendants being the Governor of Osun State; Osun State Attorney General/Commissioner for Justice; Osun State Commissioner for Local Government and Chieftaincy Affairs and Ejigbo Local Government of Osun State respectively are public officers and the suit brought outside the three methods prescribed by the Public Officers Protection Act. While this Preliminary Objection was pending, the 1st ? 6th Respondents as plaintiffs filed a motion for amendment on the 09/11/2016. In it they sought the following orders:-
(a) ?An order of this honourable Court allowing the plaintiffs/applicants to join the following people as co-defendants:
(1) Chief Muritala Alade Foyaso (Balogun of Owu-Ile);
(2) Chief Bello Ogundele (Timi of Owu-Ile);
(3) Chief Saliman Sanni Sonibare (Otun of Owu-Ile) and
(4) Chief (Mrs) Wosilatu Afolabi (Iyalode of Owu-Ile).
(b) An order to amend the statement of claim dated 29/03/2016 and filed on the same date by deleting the 1st to 4th defendants? names from the statement of claim and other Court processes wherever their names are found, such as: writ of summons, and from all other processes in this suit.
(c) An order of this Court to delete the 5th defendant?s name from the whole suit and replace it with the name,
‘His Royal Highness?: Oba Omowonuola Oyeyode Oyesosin (The Ogiyan of Ejigbo).
(d) An order of this Honourable Court permitting the plaintiffs/applicants to substitute the deposition on oath of Mr. Amusa Adigun with the statement on oath of Mr. Lamidi Oguntoye as a plaintiffs? witness.
(e) An order permitting the plaintiffs/applicants to amend the writ of summons, statement of claim and all other Court processes as contained in the schedule of amendment hereby attached and marked as EXHIBIT AD1, proposed amended writ of summons, proposed amended statement of claim marked EXHIBIT AD2 and proposed statement on oath of Mr. Lamidi Oguntoye marked EXHIBIT AD3?.
The motion was argued on two issues:-
i) Whether or not it is proper to grant an amendment at any stage of proceeding when the purpose is to bring the real and proper parties before the Court.
ii) Whether or not the amendment sought for is meant to over reach the defendants.
The defendants/Respondents opposed the application on a number of grounds. Firstly, they argued that granting the application would overreach them. They also argued that the applicants having joined issues with them on the Preliminary Objection on the 27/05/2016 by filing an address on points of law, the Court was bound to hear them on it. They also contended that the 5th defendant, His Royal Highness, the Ogiyan of Ejigbo is a non juristic person. That it is practically impossible to resolve this case effectively and effectually without the 1st ? 4th defendants who the applicants sought to withdraw the suit against. In his ruling delivered on the 14/12/2016, the learned trial judge granted the application of the plaintiff/respondents and made no findings on the 1st ? 6th defendants/Respondents? contention that the action was statute barred and that the claim of the plaintiffs as constituted could not be effectively determined without the 1st ? 4th defendants being parties to the action.
In reaction to this latter contention the trial judge at page 228 of the records found as follows:-
?Counsel to the 4th ? 6th defendants have (sic) sought to convince the Court that the Court could not resolve this case effectively without 1st ? 4th respondents. I do not agree with him. I am of the opinion that the applicants should be allowed to present their case as they deem fit. It is not the duty of the 4th ? 6th defendants to present the case of the appellants or determine the party they wish to sue. The proprietary (sic) or otherwise of suing the parties sought to be sued by the applicants shall be determine (sic) when the substantive suit is determined.”
The Court therefore in the said ruling granted all the six reliefs sought by the plaintiffs/respondents. This included amending the 5th respondent from ?His Royal highness, the Ogiyan of Ejigbo? to His Royal Highness, Oba Omowonuola Oyeyode Oyesosin (The Oyiyan of Ejigbo). The removal of the 1st ? 4th defendants that is (1) Governor of Osun State, (2) Attorney General/Commissioner for Justice, Osun State, (3) Commissioner for Local Government and Chieftaincy Affairs, Osun State and Ejigbo Local Government, Osun State as parties in this suit and the addition of the four king makers for the stool of Olowu of Owu-Ile amongst other reliefs.
Dissatisfied with this decision, the appellants appealed to this Court on five grounds as follows:-<br< p=””
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?GROUND 1:
The learned trial Judge erred in law when he held that the amendment sought by the 1st ? 6th respondents as plaintiffs at the lower Court did not affect or touch on the jurisdiction of the Court.
GROUND 2:
The learned trial judge erred in law when he failed to give due consideration to the affidavit evidence of the 1st ? 6th respondents before him to arrive at his decision.
GROUND 3:
The lower Court erred in law when he heavily relied on the cases of MATINJA V MILITARY ADMINISTRATOR OF PLATEAU STATE (1998) 9 NWLR (PART 67) 694 at 704 and MOBIL PRODUCING NIGERIA LTD V MONOKPO (2004) ALL FWLR (PART 195) 75 at 629 to save the 1st ? 6th respondents case by allowing the amendment sought.
GROUND 4:
The learned trial judge erred in law when he held that a party is at liberty to prosecute his case the matter he wants nonetheless the clear violation of the practice and procedure.
GROUND 5:
The learned trial judge erred in law when he allowed parties to file proliferation of applications without considering them on merit in clear violation of the procedure and practice in civil proceedings thereby leading to a miscarriage of justice.
Whereof the appellants sought the following reliefs from this Court:
a) The ruling of the Osun High Court Coram A.A. Aderibigbe J., delivered on the 14/12/2016 be set aside.
b) An order dismissing suit No: HEJ/6/2016 for being statute barred and incompetent.
In support of their appeal, the appellants filed their brief of argument on the 9th of March, 2018. In arguing the appeal Mr. Abdulrazak Adeoye of counsel for the appellants adopted this brief as their oral argument in support of the appeal. In it, counsel raised two issues for determination as follows:-
1. Whether the trial Court exercised its discretion judicially and judiciously by granting the application of the respondents in this appeal for amendment despite the avalanche of accepted evidence that the case of the respondents as constituted at the trial Court is statute barred.
2. Whether the trial Court was right when it held that the absence or deletion of the names of the 1st appellant and the public officers from the case of the respondents is not fatal and or would not affect the determination of the case despite the sacrosanct roles of the public officers in the chieftaincy matters.?
On issue (1) MR Adeoye submitted that upon the settlement of pleadings in this matter the 3rd appellant filed a notice of preliminary objection on the 07/05/2016 challenging the respondents? claim for being statute barred. That the respondents filed a written address to this preliminary objection on the 09/11/2016 while the 3rd appellant filed his reply on points of law on the 17/11/2016. Counsel contended that by a letter dated 17/08/2015, the respondents protested the selection of the 3rd appellant?s name to the 2nd appellant and the suit was instituted on the 29/03/2016 a period of eight months after the approval/installation of the 3rd appellant as the new Olowu of Owu-Ile. MR Adeoye referred to the case of IBAFON CO LTD V NPA (2000) 8 NWLR PART 667, 87 AT 100 PARAS A-B to submit that it is the claim of the claimant that determines jurisdiction of the Court. Counsel also referred to the case of ELABANJO V DAWODU (2006) 15 NWLR PART 1001, 76 AT 137 PARAS C-D to submit that a preliminary objection on a point of law challenging the validity of the institution of the suit as in this case can only be determined at the initial stage by reference to the statement of claim. That even though the appellant drew the attention of the Court to their preliminary objection filed on the 27/05/2016, the Court gave a bench ruling to the effect that he would prefer to hear and determine the application for amendment first with a view to saving the respondents? case from being dismissed. That the Court granted the application and struck out the names of the 1st ? 4th defendants and suo moto struck out the 3rd appellant?s preliminary objection filed on the 27/05/2016 but left the 1st appellant?s preliminary objection dated 07/07/2016 pending and unattended to. That the claim of the respondents was statute barred and an amendment seeking to set up such a claim should not be allowed. Counsel referred to page 473 of the 2nd edition of Civil Procedure in Nigeria by Fidelis Nwadialo and the case of WELDON V NEALL (1887)19 QBD, 394 AT 395. MR Adeoye also submitted that the respondent had already admitted to the fact that their action was statute barred and cannot change that position through an amendment. He referred to the case of AKANINWO V NSIRIM (2008) NWLR, PART 1093, 439 AT 479 PARA H. That there are reliefs in the amended statement of claim against the 7th ? 9th respondents who were struck out as parties. That being necessary parties it is strange to strike them out as parties. Counsel referred to the case of OKOLO V UBN (1999) 10 NWLR, PART 623, 429 AT 439 PARAGRAPHS D-H on principles guiding amendment. On the 5th defendant (now 2nd appellant) being a non juristic person, counsel argued that this is not a misnomer and so cannot be amended to substitute a juristic person. Counsel relied on the case of EMECHETA V OGUERI (1996)5 NWLR, PART 447, 240, PARAS G-H.
On issue (2), MR Adeoye referred to the Respondents in the trial Court. In other words, counsel?s contention is that the parties struck out from the 4th ? 6th respondents? writ of summons Sections 15-20 of the Chiefs Law, CAP 25, LAWS OF OSUN STATE, 2001 which clearly stipulate the powers, roles and functions of the 1st ? 4th defendants to include acceptance of nomination, appointment, approval and installation of a candidate to fill a vacant stood in respect of chieftaincy, the subject of complaint of the respondents in the trial Court. In other words, counsel?s contention is that the parties struck out from the 4th – 6th respondents? writ of summons and pleadings are necessary parties in whose absence the claim of the respondents cannot be properly settled. Counsel referred to the case of OK CONTACT POINT V PROGRESS BANK (1999)5 NWLR, PART 604, 631 AT 634 PARAGRAPHS A-B and JIMOH V OYINLOYE (2006) AFWLR, PART 322, 1556 AT 1565-1566.
Whereof MR Adeoye prayed for the setting aside of the ruling of Hon. Justice A.A. Aderibigbe of the Ejigbo Division of the Osun State High Court delivered on the 14/12/2016 and an order dismissing the respondents? claim in suit No: HEJ/6/2016 for being statute barred and incompetent.
In opposing this appeal the 1st -6th Respondents filed their brief of argument on the 05/10/2018. In arguing the appeal MR Dele Abbas for the 1st ? 6th Respondent adopted the brief as their legal arguments in opposition to the appeal. In it counsel appeared to have indirectly adopted the two issues raised by the appellant for determination. On issue (1) counsel submitted that the plaintiffs/respondents? case would cease to be statute barred if the public officers (i.e. the 1st ? 4th defendants) ceased to be parties in the case since the preliminary objection was based on the Public Officers Protection Act. That the amendment sought and granted to withdraw the suit against the public officers has cured the defect since the public officers are not necessary parties. Counsel further submitted that the trial Court was right in granting them leave to amend their processes in the manner done. This according the counsel is because the defect is curable and did not affect the competence and jurisdiction of the Court to adjudicate on the matter. That the objection is a mere adherence to technicality by the appellants which should be discountenanced. That it would be wrong to deny them an opportunity to amend their processes before the commencement of trial. Counsel referred to the cases of MUHAMMED V UNIABUJA (2015) AFWLR PART 809, 994 AT 1004 PARAGRAPH D and NALSA & TEAM ASSOCIATES V NNPC (1991-1992) AFWLR, 209. Counsel further contended that where there are two competing applications, one to terminate the matter midstream and the other to sustain it by curing the defect, the Court will take the latter option if the defect is curable and does not affect the jurisdiction and competence of the Court to adjudicate on the matter. Counsel referred to five cases:- MAKINDE V ORION ENGINEERING SERVICES (UK) LTD (2014) AFLWR PART 739, 1118 AT 1203 PARAS F-G & 1203-1204 PARAS H-D; ATTORNEY GENERAL OF THE FEDERATION V A.K. LTD (1995)2 SCNJ, 113 AT 119; MOBIL PRODUCING NIGERIA UNLTD V MONOKPO (2004) AFWLR PART 195, 576 AT 595 AND 692 PARAS C-D; ROGEN INVEST LTD V NDIC (2009) AFWLR, PART 348, 823 AT 847 PARAS E-F and NALSA & TEAM ASSOCIATES V NNPC (SUPRA). Counsel also contended that whether the role of public officer would affect the success or determination of the case cannot be determined at this interlocutory stage. That the lower Court was right to have granted the amendment to hear the case on its merit and was not influenced with whether or not the plaintiffs? claim was weak or had no likelihood of success at the trial.
On whether the 1st appellant and the 7th ? 9th respondents are necessary parties, counsel answered in the negative. He contended that the main issue for determination in the case is a customary one which borders on whether the 2nd appellant is a member of the Olowu of Owu royal family. That the withdrawal of the suit against the public officers though may weaken the plaintiffs? case but is not fatal to its success.
On the legal personality of the 2nd appellant, counsel submitted that the 2nd appellant does not have the attributes of a juristic person who can sue and be sued. That the inclusion of the 2nd appellant in this appeal has rendered it incompetent and liable to be dismissed. Counsel referred to the cases of FAWEHINMI V NBA (NO. 2) (1989) 2 NWLR OART 105, 588 and MANAGEMENT ENTERPRISES LTD V OTUSANYA (1987) 2 NWLR PART 55, 176. Counsel urged the Court to dismiss the appeal for being in competent, time wasting and with substantial cost.
I have considered the submissions of both counsels in this appeal. I do hereby without hesitation uphold the submission of counsel to the 1st ? 6th respondents to the effect that where there are two competing applications, one to terminate the matter midstream and the other to sustain it by curing the defect, a Court will first take the latter application. ?IF THE DEFECT IS CURABLE & IT DOES NOT AFFECT THE JURISDICTION AND COMPETENCE OF THE COURT TO ADJUDICATE ON THE MATTER? (Emphasis provided). The critical questions to ask therefore are: what is the defect that the respondents seek to cure is it curable? Does it affect the jurisdiction and competence of the Court to adjudicate on the matter? According to counsel, the plaintiffs/respondents realized their mistake in including some parties albeit wrongly and excluding some wrongly.
In answering this one million naira question, we should first look at these parties critically and in line with the effect of their inclusion/exclusion. The 1st ? 4th defendants in the originating process are (1) Governor of Osun State, (2) Attorney General/Commissioner for Justice, Osun State, (3) Commissioner for Local Government and Chieftaincy Affairs, Osun State and Ejigbo Local Government of Osun State. The contention of the appellant as defendants in the Court below is that these four persons or offices are public officers/offices within the meaning of the Public Officers Protection Act, CAP P41, Laws of the Federation of Nigeria, 2004. The aim of this law is to protect public officers who have acted pursuant to their duties from being slapped or harassed with stale claim and suits. See the cases of IBRAHIM V JSC (1998) 14 NWLR, PART 584, and FAJIMOLU V UNILORIN (2007) 2 NWLR PART 1017, 74. By SECTION 18(1) of the INTERPRETATION ACT, 1964, a public officer is a member of the public service of the Federation or of a state within the meaning of the 1999 Constitution. See the case of ABUBAKAR V GOVERNOR OF GOMBE STATE (2002) 17 NWLR, PART 797, 533. This authority also held that the Governor of a state is a member of the public service of the state. In other words a state Governor is a public officer. In the case of IBRAHIM V JSC (SUPRA), the Supreme Court held that public positions such as Attorney General, Permanent Secretary, Inspector General of Police etc although public offices are nonetheless public officers within the meaning of the law and are therefore protected. It follows without a doubt that the 1st ? 4th defendants are public officers and are protected by the Act. This much is conceded by the 1st ? 6th respondents? counsel. See page 6 of his brief particularly paragraph 3.0:-
?—-the public officers concerned in this issue are the Governor of Osun State, Attorney General/Commissioner for Justice, Osun State, Commissioner for Local Government and Chieftaincy Affairs, Osun State as well as Ejigbo Local Government. These public officers are not necessary parties——-?
By the provision of SECTION 2 of the Act, any action, prosecution or any proceeding commenced against any public officer shall be brought within three months of the act, neglect or default complained of or in the case of a continuing damage or injury within three months next after the ceasing thereof. See the cases of IBRAHIM V JSC (SUPRA) and NIIA V AYANFALU (2007) 2 NWLR PART 1018, 26. On the authority of the Supreme Court case of EKEOGU V ALIRI (1991) 3 NWLR PART 179, 258 the Public Officers Protection Act is a statute of limitation. This means that where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce such cause of action by judicial process because the period laid down by the limitation law for instituting such an action has lapsed. See the cases of EMIATOR V NIGERIAN ARMY (1999) 12 NWLR, PART 631, 362 (Supreme Court) and CBN V UKPONG (2006) 13 NWLR, PART 998, 555 (Court of Appeal).
In reaction to the writ of summons filed by the respondent on the 29/03/2016 the 6th defendant filed his statement of defence and filed a notice of preliminary objection on the 26/10/2016 (See pages 156-164 of the records). The 4th defendant had earlier filed a notice of preliminary objection on the ground among other grounds that the action being brought against the 1st ? 4th defendants public officers was statute barred having been brought more than three month after the act complained of. This preliminary objection was filed on the 27/05/2016. Another preliminary objection was filed by the same 4th defendant on the 16/08/2016 raising the same issue among others. See pages 93-100 and 101-108 respectively. The instrument of installation or appointment of the 6th defendant as the Olowu of Owu-Ile was not exhibited by any of the parties. However on page 105 of the records paragraph 3.2 thereof while it was stated that the plaintiffs/respondents averred in paragraph 22 of their statement of claim that the Governor of Osun State, the 1st defendant approved the appointment of the 6th defendant as Olowu of Owu-Ile on the 17/08/2015, the 6th ? 9th defendants now appellants maintained that the 6th defendant was installed as the Olowu of Owu-Ile on the 10/08/2015. Whichever date is taken, it is clearly more than 3 months within which an action can be brought against a public officer. This fact having been conceded to by the plaintiffs/respondents, I find it unnecessary to dwell on it. This was the reason why the plaintiffs/respondents amended their writ of summons and statement of claim to strike out the 1st – 4th defendants, the public officers sued therein. The vital issue to determine therefore in my view and as raised by the 6th – 9th defendants/appellants is whether the 1st ? 4th defendants are necessary parties to this suit as amended.
Necessary parties are persons against whom a complaint is made and in whose absence the fundamental question in the action cannot be effectually and completely settled or determined. See the cases of UBA PLC V HON. JUSTICE J. F. GBADEYAN (RTD) & ORS (2018) LPELR ? 44859; GLOBAL WEST VESEL SPECIALIST NIG LTD V NIG NLG LTD & ANOR (2017) LPELR ? 41987 and ASIKA & ANOR V ONYEDIKE (2012) LPELR ? 9474. It is apparent therefore it is the claim of the plaintiff and not the defence of the defendant that determines whether a defendant is a necessary or unavoidable party whose absence would render the action impotent or ineffectual. In applying these principles to the instant case, it should be borne in mind that the issue in contention is a chieftaincy matter. The suit questions the propriety or otherwise of the appointment and installation of the 6th defendant as the Olowu of Owu-Ile. The process of installation is initiated with the nomination of the candidates by the kingmakers. These kingmakers were (four in number) not originally parties to this suit. The plaintiffs had sought to join them as defendants to replace the original 1st ? 4th defendants. These are the Governor of Osun State, AG/Commissioner for Justice, Osun State, Commissioner for Local Government/Chieftaincy Affairs, Osun State and Ejigbo Local Government of Osun State. After the nomination is made by the kingmakers, same is forwarded to the chairman of the Local Government of the area in question. The chairman will in turn forward same to the Commissioner for Local Govt & Chieftaincy Affairs who will pass same to the Governor. The Governor will in turn appoint and install the chief. See Sections 15 through to 20 of the CHIEFS LAW OF OSUN STATE (SUPRA). The 3rd appellant had already been installed as the Olowu of Owu-Ile by the Governor. It is clear from the provisions of this law and the records that the 1st ? 4th defendants played and have a big role in the nomination, appointment and installation of the 3rd appellant as the Olowu or of any other chief in the state. By Section 15 of the Chiefs Law and pages 24 and 67 of the records, the Secretary of Ejigbo Local Government announced the vacancy to the stool to all the eligible ruling houses, requesting them to nominate candidates for the stool. This they did and the Secretary notified the Commissioner for Local Government ad Chieftaincy Affairs as provided by law. It follows from the role played by the 1st ? 4th defendants in the nomination, appointment and installation of the 3rd appellant that the 1st ? 4th defendants are necessary parties to this suit. This is a suit that challenges the nomination and installation of the 3rd appellant as the Olowu of Owu-Ile. The proposed new 1st ? 4th defendants, Chief Muritala Alade (Balogun of Owu-Ile); Chief bello Ogundele Ogunlana (Timi of Owu-Ile); Chief Saliman Sanni Sonibare (Otun of Owu-Ile) and Chief (Mrs) Wosilatu Afolabi (Iyalode of Owu-Ile) are indeed the kingmakers of Owu-Ile. Their role is to nominate the candidate for the vacant stool as requested by the applicable Local Government through its Secretary. They are therefore also necessary parties. They cannot however effectively substitute the original 1st ? 4th defendants. This is because the suit is not just a challenge to the nomination of the candidate but also his appointment and installation. It then follows that the grant of the application by the 1st ? 6th Respondents removing 1st ? 4th defendants in the original writ as parties means that necessary parties were not joined in the suit. In the case of OKWU V UMEH (2016) NWLR PT 1501, Okoro JSC, held as follows:
?However, while it is the law that no cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party, yet in the absence of a proper party or necessary party before the Court, it appears an exercise in futility for the Court to make an order or decision which affects a STRANGER to the suit who was never heard or given an opportunity to defend himself. This will certainly be against the tenets and tenor of SECTION 36 of the Constitution of the FRN, 1999 as (amended). ?.. A plaintiff is not bound to sue a particular party. However, where the outcome of the suit will affect that party one way or the other, it will be fool hardy not to join him in the suit.?
It follows from this decision that since the 1st ? 4th defendants are necessary parties, the decision to strike them out only to save the suit of the plaintiffs from being statute barred is misconceived and cannot be supported. It was wrong for the trial Court to have refused to hear the application of the appellant on the grounds that the application of the respondent was to save the suit while that of the appellant was to destroy. The application or rather the preliminary objection of the appellant touches on the jurisdiction of the Court and ought to have been heard first or at the earliest opportunity. The proper thing for the trial Court to have done in the circumstances was to have heard both the preliminary objection and the respondent?s motion together. That way the Court may have been in a better position to objectively evaluate both applications in order to reach a more fair and just decision. Looking at it from this angle it appears that the trial judge only wanted to assume jurisdiction where there was clearly none. If he had taken the appellant?s preliminary objection he would have dismissed the respondent?s case for being statute barred. It is trite that an amendment can be granted at any stage of the proceedings and it is at the discretion of the Court. Where however an amendment would entail injustice to the other party or over reach him it would not be granted. See the case of EZE V ENE & ANOR, (2017) LPELR -41916 (SC). In the instant case, I find that this amendment would overreach the appellants and cause injustice to them. Without the amendment the respondent?s suit was subject to being dismissed having become statute barred. A statute barred matter ousts the jurisdiction of the Court. This amendment would give jurisdiction to the trial Court where it has none. It will give life to the suit of the respondent by removing that impediment of public officers who make the action statute barred. In other words I find that the amendment entails injustice to the appellant, is overreaching and is done in bad faith. The amendment was wrongly allowed. It is therefore set aside for being incompetent and overreaching.
This takes us to what should happen with the appellant?s preliminary objection. The one filed on the 26/10/2016 was struck out by the Court suo motu and wrongly in my view. There was another preliminary objection filed on the 27/05/2016, contained at pages 75-84 of the records. The plaintiffs? counsel filed his argument against this preliminary objection; it is dated and filed on the 09/11/2016 and contained at pages 173-175 of the records. Ordinarily if the preliminary objection has not been heard and the order given for amendment of the writ to arrest the preliminary objection has been set aside, the proper order to make would be to remit the case back to the lower Court to hear and determine the preliminary objection. I find however that the circumstances of this case dictate otherwise. The main contention of the preliminary objection is that the action is statute barred. If without prejudice this is found to be the position then it does not make much judicial sense to send it back for the trial Court to determine just that and strike out or dismiss the suit. More importantly SECTION 15 OF THE COURT of APPEAL ACT gives this Court the powers to determine this application without having to send it back to the Court below. The task has been made easier as both parties have filed their reactions to the preliminary objection.
Pursuant to the powers conferred on this Court by SECTION 15 OF THE COURT of APPEAL ACT, 2004, I have read and considered the Preliminary Objection filed on the 27/5/2016 by the appellants as contained at pages 75-84 of the printed records. The application amongst others seeks ?an order of this Hon. Court dismissing the plaintiffs? claim for being incompetent, abuse of judicial process, vexatious, afterthought and statute barred.?
Two of the four grounds upon which the application was brought are:-
(a). The law is settled that a public officer can only be sued within three months of the accrual of action or next after the neglect or default complained of.
(b). The suit was instituted more than three months after accrual of action.
(c). The 4th defendant was not issued with mandatory one month pre-action notice before this action was instituted.
(d). The 6th defendant was not sued in his present recognized capacity as the current Olowu of Owu-Ile.
The application was accompanied by a written address filed by the 1st defendant?s counsel. In the writ the 1st ? 4th defendants are the Governor of Osun State; Attorney-General/Commissioner for Justice, Osun State; Commissioner for Local Government & Chieftaincy Affairs, Osun State and Ejigbo Local Government of Osun State. Without much ado these four offices are public officers within the meaning of the Act as has already been found in this judgement. This fact is not contested by the plaintiffs/respondents. In the written address, counsel raised a sole issue for determination by the court:
?Whether considering the facts and circumstances of this case the plaintiffs? claim is not statute barred, vexatious, embarrassing and gross abuse of this Honourable Court.”
Counsel contended that the law is settled that for an action, prosecution or proceedings to be commenced against a public officer in the performance of his public duty such action can only be competent if done within three months of the accrual of the act. Counsel relied on SECTION 2 OF THE PUBLIC OFFICERS PROTECTION LAW, LAWS OF OSUN STATE OF NIGERIA VOL VI, 2001 and the case of FGN V ZEBRA ENERGY LTD (2002) 3 NWLR PT 754, 471 AT 499 PARAS A-D. Counsel submitted that in determining whether an action is statute barred, it is the plaintiff?s claim the Court will look at and never the defendant?s defence. Counsel further submitted that by paragraph 22 of the plaintiffs? statement of claim, Oba Muhammed Raji Qasim Adekunle Akano was installed as the Olowu of Owu-Ile by the 1st defendant on the 17th of August, 2015. Counsel contended that as a matter of fact Oba Muhammed Raji Qasim Adekunle Akano was installed as the new Olowu of Owu-Ile on the 10/08/2015. He however submitted that assuming without conceding that he was installed on the 17th of August, 2015 as admitted by the plaintiffs/respondents, the neglect or default complained against the 1st ? 4th defendants by approving or recognizing the 6th defendant as the new Olowu of Owu-Ile was far more than the three months stipulated by the law. Counsel urged the Court to so hold and to strike out or dismiss the plaintiffs? suit for being statute barred among the other prayers contained in the preliminary objection.
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The plaintiffs? counsel?s arguments against this preliminary objection are contained at pages 173-175 of the records. The plaintiffs? counsel in his arguments admitted that the writ of summons in question was dated and filed on the 29th May 2016. Rather than respond to the issues raised in the preliminary objection, however counsel chose to attack the propriety or otherwise of the preliminary objection. Counsel?s argument was premised on the fact that the preliminary objection amounts to a demurer which has been abolished. I find that counsel is grossly misconceived in his position. A statute barred action is on a class of its own, if you like, sui generis. This is because it goes to the jurisdiction of the Court. An issue of jurisdiction can be raised at any time and it goes beyond issues of law classified as demurer and prohibited. In a matter involving limitation law as in this case, once the action has run its course, it takes away every right to seek remedy ever. There can therefore be no recourse to such requirement as hearing on the merits as alluded to by learned counsel to the plaintiffs.
Indeed the Supreme Court per NGWUTA, JSC in the case of A C N & ANOR V INEC & ORS (2013) 13 NWLR, PT 1370, 161 puts it very beautifully when it held:
?A limitation statute, once it has run out, takes away the right to seek remedy in the enforcement of the accrued right in Court, leaving the right bare and untouched. The right remains but the means to enforce it extinguished for all times. See IBRAHIM V JSC, KADUNA STATE (1998) 14 NWLR, PT 584, 1 SC where this Court, per Iguh, JSC said: ?It suffices to state that a statute of limitation ?.. removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and this leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute barred, that is to say, if such a cause of action is instituted outside the statutory period allowed by such law. See also the case of P.N UDOH TRADING CO LTD V ABERE (2001) FWLR, PT 57, 900 SC.?
Also see the case of BUREMOH V AKANDE (2017) LPELR ? 41565 (SC). The effect of a limitation law on the cause of action therefore is that the Court lacks the jurisdiction to entertain the action. Jurisdiction has variously been described as the fiat, the license, the life blood, the stamp of authority which necessarily enures to the Court and empowers it to adjudicate. Due to the fundamental nature of the issue of jurisdiction, litigants and parties are at liberty to competently raise it even orally and for the first time by any of the parties or suo motu by the Court and at whatever stage of the adjudication process. See the cases of OLORIODE V OYEBI (1984) 5 SC I, PETROJESSICA ENTERPRISES LTD V LEVENTIS TECHNICAL CO LTD (1992) 6 SC, PT II 1 and LADO & 43 ORS V CPC & 53 ORS (2011) 12 SC, PT III, 113.
It is for these reasons that I find that both the counsel for the plaintiffs/respondents and the lower Court were grossly misconceived and in grave error respectively in sweeping this issue only as a demurer and refusing to take the preliminary objection on the wrongly perceived grounds that it was seeking to destroy as opposed to the plaintiffs? motion for amendment which he considered as one seeking to restore. It is trite that every challenge to the jurisdiction of the Court should be determined timeously and never stalled. If the lower Court had paid heed to this principle he would have saved himself and this Court the unnecessary hassle of almost three years created by this case.
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On the whole however, it is clear from the records that this writ was filed on the 29th May, 2016. The 6th defendant, Oba Muhammed Raji Qasim Adekunle Akano was installed as the Olowu of Owu-Ile sometimes in August 2015. His installation by the 1st ? 4th defendants is the reason for the plaintiffs? suit. There is no dispute that the 1st ? 4th are all public officers within the meaning of the Public Officers Protection Law of Osun State, (supra). From August 2015 to May 2016 is a period of nine months, well over the three months? threshold allowed for the institution of a suit against a public officer from the date of the accrual of action complained about. Consequently I hold that this action not having been brought within three months of its occurrence is statute barred. This appeal therefore succeeds on this ground and I allow it. The ruling of the trial Court delivered on the 14/12/2016 is hereby set aside. The case filed on the 29/03/2016 in Suit No: HEJ/6/2016 before the High Court of Justice, Osun State sitting at Ejigbo and presided over by Hon. Justice A. A. Aderibigbe is hereby dismissed for being statute barred.
In view of this finding I deem it unnecessary to make any findings of all the other ancillary issues raised in this appeal.
From the surrounding circumstances of this case, I make no order as to costs. Each party is to bear its own cost.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity to read the draft of the leading judgment, in this appeal, just delivered by my learned Brother, Patricia Ajuma Mahmoud, JCA.
I agree with his Lordship?s line of reasoning and the conclusion reached that the appeal is imbued with merit and allow it accordingly.
I equally abide by all the consequential orders made in the said leading judgment and make no order for costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have had the benefit of reading in draft the lead judgment prepared in this case by Patricia Ajuma Mahmoud, JCA, in this appeal and I agree that the amendment granted to the Respondents as Plaintiffs at the trial was over-reaching of the Appellants and indeed had reconstituted the Suit into one without necessary parties by the amendment to jettison by the striking out of the names of the erstwhile parties i.e the 7th- 9th Respondents herein as parties in the writ of summons, statement of claim and from all processes in ?this Suit?.
The least the Respondents could do if they no longer had claims against the said 1st-4th Respondents/Defendants was to file Notice of withdrawal of the case against them or file a Notice of discontinuance of the suit if they were mindful that the case would fail upon non disclosure of any cause of action or the incompetence of the suit, upon the effluxion of time under the statute of limitation on law applicable.
What is contra bonus mores, i.e against public conscience and morality the kings? Court will prohibit and not enforce. Sec Jones v. Randall (98) ER 606 709.
My Lord, Patricia Ajuma Mahmoud has rightly held the amendment granted in the circumstance as undeserving and unjust.
The argument is that “demurer? had been abolished and therefore the preliminary objection to the amendment sought was tacitly jettisoned. The contention was puerile, as a ?demurer contemplates where no pleadings are filed and an objection is raised on points of law for determination affecting the competence of a suit and the action without hearing or pleadings. It is in that respect that it is required that the objection be raised within pleadings or be taken at, the hearing.
That was what the Appellants did. What is more, the neglect refusal or omission to consider and determine the preliminary objection to the competence of the suit was not just an irregularity that could be waived, as it went to the right of fair hearing of the Appellants. On this score alone, the decision was liable to be set aside. Since the facts upon
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which the objection was raised and could be determined are in the record of appeal, my Lord in the lead judgment is right and I endorse the view that this Court can proceed to Rule there on the preliminary objection raising as it were a challenge to the jurisdiction of the Court to further entertain the suit as it was statute barred, having been instituted well over 3 months from the accrual of the cause of action; in this case the appointment of and installation of the 3rd Appellant here-in.
I join my Lord, Patricia Ajuma Mahmoud in allowing the appeal and I also endorse the orders setting aside the Ruling impugned and that dismissing the suit for being statute barred.
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Appearances:
Mr. Abdulrasak Adeoye with him, Ms. Elizabeth BenjaminFor Appellant(s)
Mr. Dele Abbas for 1st-6th Respondents.
Mr. Anbali Adisa (ADL, MOJ, Osun State) with him, Mr. Umar Faruk (SC) for 7th-9th RespondentsFor Respondent(s)
Appearances
Mr. Abdulrasak Adeoye with him, Ms. Elizabeth BenjaminFor Appellant
AND
Mr. Dele Abbas for 1st-6th Respondents.
Mr. Anbali Adisa (ADL, MOJ, Osun State) with him, Mr. Umar Faruk (SC) for 7th-9th RespondentsFor Respondent
