ABUJA POWER CO. LTD & ANOR v. GOV. OF NIGER STATE
(2022)LCN/15971(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, January 28, 2022
CA/A/585/2018
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
1. ABUJA POWER COMPANY LIMITED 2. TRANSATLANTIC INVESTMENT AND DEVELOPMENT COMPANY LIMITED APPELANT(S)
And
THE GOVERNOR OF NIGER STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE LOWER COURTS CAN UPON A RULING IN AN INTERLOCUTORY APPLICATION MAKE ORDERS WHICH HAVE THE EFFECT OF PREJUDGING OR PRE-EMPTING THE ISSUES FOR ADJUDICATION IN THE SUBSTANTIVE SUIT
The golden rule is that lower Courts should not upon a ruling in an interlocutory application make orders which have the effect of prejudging or pre-empting the issues for adjudication in the substantive suit. See Group Danone v Voltic Nig Ltd (2008) 7 NWLR (Pt 1087) 637. These issues are also resolved against the Respondent. PER AMADI, J.C.A.
THE POSITION OF LAW AS IT RELATES TO THE EFFECT OF LIMITATION OF ACTION
The law promptly, as it relates to the effect of limitation of action, is that a claimant must commence action for appropriate remedy or remedies for breach of his rights within the time stipulated by a law or statute of limitation. Where he fails to bring his action within the prescribed period, he cannot be heard anymore, notwithstanding that he has a cause of action, because the Court would have no jurisdiction over his claim after the prescribed time has elapsed. See Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1, Ekeogu v. Aliri (1990) 1 NWLR (Pt. 126) 345, Emiator v. Nigerian Army (1999) 12 NWLR (Pt. 631) 362, Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310) 137, Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489) 490 and Bakari v. Ogundipe (2021) 5 NWLR (Pt. 1768) 1.
For the purposes of limitation of an action, the time begins to run from the date on which the cause of action accrues. See Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241; Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637 and Eboigbe v. N.N.P.C (1994) 5 NWLR (Pt. 347) 649. PER ADUMEIN, J.C.A.
WHETHER OR NOT IT IS THE CLAIMANT’S STATEMENT OF CLAIM THAT DETERMINES WHETHER OR NOT THERE IS A CAUSE OF ACTION
Under our jurisprudence, it is the claimant’s statement of claim that should be considered in determining whether or not there is a cause of action. See Combined Trade Ltd. v. All States Trust Bank Limited (1998) 12 NWLR (Pt. 576) 56.
It should also be noted that what is barred under a statute of limitation, such as Section 2(a) of the Public Officers Protection Law of Niger State, “is the action and not the cause of action” – Sifax Nigeria Ltd. v. Migfo Nigeria Ltd. (2018) 9 NWLR (pt. 1623) 138 at 184, per Augie, JSC.
To determine whether or not an action is statute-barred, by virtue of any law of limitation, the Court has to examine the writ of summons and statement of claim to discover when the alleged wrong was committed, and which gave the claimant a cause of action, with the date on which the writ was filed in Court. If the date on the writ is beyond the period permitted by the limitation law, then the action is statute-barred. See Egbe v. Adefarasin (supra), Ibrahim v. Lawal (supra) and Bakari v. Ogundipe (supra). PER ADUMEIN, J.C.A.
KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice sitting in Niger State, in suit no. NSHC/SD/67/2017; Coram: Hon. Justice Ahmed A. Bima, delivered on 12th day of March, 2018.
The Appellant filed a suit at the lower Court being the High Court of justice sitting in Niger State, via an originating summons dated 4th day of August, 2017 and filed on same date against the Respondents claiming, inter alia, the following reliefs:
a. A declaration that the purported revocation (and/or reallocation) of the 1st plaintiff’s right of occupancy and lawful occupation of the land along Gurara River, allocated for hydropower project (to serve the public) and covered by the certificate of occupancy No. NG/GUR/023, dated 03 June, 2008 and registered as No. 47, at page 47 in volume 6 (of the Lands Registry, Minna) by a Notice of Revocation dated 1 November 2016 – is unconstitutional, illegal, and therefore null and void.
b. An order setting aside the Notice of Revocation dated 01 November, 2016 and restoring the 1st Plaintiff’s right of occupancy and exclusive possession over the land covered by the Certificate of Occupancy No. NG/GUR/023, dated 3rd June, 2008 and registered as No. 47, at page 47 in volume 6 (of the land Registry, Minna).
c. An order of perpetual injunction restraining the defendant or any person claiming through him or the Niger State Government – [their officers, agents, assigns, beneficiaries, subjects, privies, allies, or counterparties] – from reallocating to another person(s), party, agency/ministry of government; the 1st plaintiff’s right of occupancy and exclusive possession over the land covered by the Certificate of Occupancy No. NG/GUR/023, dated 03 June, 2008 and registered as No. 47, at page 47 in Volume 6 (of the Land Registry, Minna).
d. An order of perpetual injunction restraining the defendant or any person claiming through him or the Niger State Government – [their officers, agents, assigns, beneficiaries, subjects, privies, allies, or counterparties] – from encroaching, trespassing and/or occupying the 1st plaintiff’s land covered by the certificate of occupancy no. NG/GUR/023, dated 03 June, 2008 and registered as No. 47, at page 47 in Volume 6 (of the Land Registry, Minna).
e. And for such further order or other orders as this Court may deem fit to make in the circumstances.
The Respondent who is the defendant at the trial Court filed a Counter-Affidavit and a Notice of Preliminary objection to the originating summons of the 1st and 2nd plaintiffs at the trial Court to the effect that the suit of the plaintiffs is incompetent and that the trial Court has no jurisdiction to hear and determine it. The grounds of the objection are:
i. The suit is statute barred having regards to Section 2(a) of the Public Officers Protection Law, CAP 41, Laws of Niger State.
ii. That the 2nd Plaintiff has no locus standi and or any cause of action against the defendant and that the memorandum of understanding being relied upon by the plaintiffs has no binding force in law and or not enforceable.
iii. The plaintiffs have no cause of action or reasonable cause of action against the defendant.
The trial Court heard the Preliminary Objection and held that the suit is statute-barred and that the suit did not disclose any cause of action against the Respondent.
Aggrieved by the ruling of the trial Court, the Appellant filed by a Notice of Appeal filed on 11/6/2016 wherein (8) eight grounds of appeal were raised thus:
Ground 1:
The lower Court erred in law when it held that the Applicant (now Respondent) need not file an affidavit in support of its Notice of Preliminary objection since the objection is based entirely on the originating summons filed by the Respondents (now Appellants) and the preliminary objection is challenging the jurisdiction of the Court and is thus “…an issue on points of law and not on points of facts”, and thereby occasioned a miscarriage of justice.
GROUND 2:
The lower Court erred in law when, professing to rely on the case of Benin Electricity Distribution Co. Plc v. Esealuka [2013] LPELR – 2015 9 (CA), it held that the 1st Respondent [now 1st Appellant] is deemed in law to have received the notice of revocation on the date Exhibit CO12 [letter of revocation] was posted by registered mail on 23/11/2016 and that the onus was on the Appellants to show that the mode of delivery was other than by registered post and thereby occasioned a miscarriage of justice.
GROUND 3:
The lower Court misdirected itself both on the law and on the facts when it stated that “on the same date the same Mr. Isah Ijah received Exhibit CA1 (Exhibit CO12), a document posted since 23/11/16”; thereby erroneously equating Exhibit CA1 with Exhibit CO12 and thereby occasioned a miscarriage of justice.
GROUND 4:
The lower Court erred in law when it held that the presumption of receipt of Exhibit CO12 (Letter of Revocation) has not been sufficiently rebutted and went on to further hold that Exhibit CO12 was posted by registered post on 23/11/2016 and the 1st Respondent is deemed to have received same on that day and that, accordingly, the Appellants’ cause of action accrued on 23/11/2016, and thus that the action of the Appellants is statute-barred by reason of Section 2(a) Public Officers Protection Law of Niger State and liable to be dismissed, and thereby occasioned a miscarriage of justice.
GROUND 5:
The lower Court misdirected itself on the facts and improperly evaluated the affidavit evidence and exhibits when it found as being unbelievable” and “a ploy to hide the truth”, the deposition in paragraph 28 that the Appellants only became aware of Exhibit CO12 on 3/7/2017 when Mr. Isah Ijah, the 1st Appellant’s Community Relations Officer went to the lands’ office to pay the ground rent and while he was told that title to the land had been revoked and a copy of Exhibit CO12 was given to him, and went on to further hold that a document sent by registered post can never take 9 months before the addressee receives it, and thereby occasioned a miscarriage of justice.
GROUND 6:
The lower Court erred in law when it stated that the Governor (Applicant – now Respondent) revoked the right of the 1st Respondent (now 1st Appellant) to the land in issue for public purpose and for failure of the Appellants to develop the land.
GROUND 7:
The lower Court erred in law when it held that the action of the Appellants is premature on the ground that the Appellants did not wait for the “acquiring authority to manifest its true intention” as to whether the acquisition is for a public purpose or not, and thereby occasioned a miscarriage of justice.
GROUND 8:
The lower Court erred in law when it held that Exhibit CO1 (the MOU between the 1st Appellant and the Niger State Government) has no binding force “even if the parties state that it shall be binding “and that even if it had binding force, it has no nexus with Exhibit CO2 (the Certificate of Occupancy) revoked by Exhibit CO12 and that in consequence that the Appellants’ suit does not disclose a reasonable cause of action, and thereby, occasioned a miscarriage of justice.
The learned counsel for the Appellants in the Brief of Argument settled by Ogunmuyiwa Balogun, dated and filed on 3/8/18 formulated four issues for determination as follows:
i. Whether the lower Court was right in holding that the Appellants’ action is statute-barred and in consequence dismissing the Appellants’ originating summons (distilled from ground 1, 2, 3, 4 & 5 of the notice of appeal).
ii. Whether the lower Court was right to hold that the Respondent revoked the Appellants’ title to the land in issue for public purpose and failure to develop the land, at a preliminary stage (distilled from ground 6 of the notice of appeal).
iii. Whether the lower Court was right when it held that Appellants’ suit was premature (distilled from ground 7 of the notice of appeal).
iv. Whether the lower Court was right when it held that the Appellants’ suit does not disclose a reasonable cause of action (distilled from ground 8 of the notice of appeal).
In respect of issue one, learned counsel submitted that the lower Court came to a wrong conclusion when it upheld the objection taken by the Respondent and held that the Appellants’ action was statute-barred by:
(i) Erroneously applying the Public Officers Protection Law of Niger State, which is inapplicable to the instant action being an action challenging revocation of title which has been held to be an action for recovery of land.
(ii) Misconstruing and misapplying the decision in Benin Electricity Distribution Company Plc v. Esealuka (Supra) in relation to the rebuttal of the presumption of receipt of documents sent by pre-paid registered post.
(iii) Failing to properly evaluate the evidence as it relates to the date of receipt of the notice of revocation and, thus, the date of accrual of the cause of action.
(iv) Determining the date of the accrual of the cause of action on averments of the Respondent who did not file an affidavit in support of its notice of preliminary objection.
Counsel argued that the major aim of the Appellants’ suit at the lower Court is to challenge the purported revocation of the 1st Appellant’s title to the parcel of land covered by Certificate of Occupancy No. NG/GUR/023 dated 3rd June, 2008 and registered as No. 47 at page 47 in Volume 6 of the Lands Registry, Minna (Exhibit CO2) which the Respondent purportedly revoked via its notice of revocation (Exhibit CO12) while relying on the case of Wuro Bogga Nigeria Limited & Anor v. Hon. Minister of Federal Capital Territory & Ors. [2009] LPELR- 20032(CA) to the effect that an action challenging revocation of title to land is an action for recovery of land.
Counsel further argued that statutes in the nature of the Public Officers Protection Law of Niger State, are inapplicable to an action for recovery of land and cited the case of Roe Limited v. UNN [2018] LPELR-43855 (SC) where the Court adopted its earlier decision in F.G.N v. Zebra Energy Limited [2002] 18 NWLR (Pt. 798) 162 where it was held that the Public Officer Protection Act was not intended by the legislature to apply to contracts, or in cases of recovery of land, breaches of contract or for claims for work and labour done.
That assuming without conceding that the Public Officers’ Protection Law of Niger State is applicable in the instant case, the lower Court was still in error in deciding that the suit of the Appellants is statute-barred and contends that the determination of whether the Appellants action is statute-barred turns on the facts and is at best a question of mixed law and fact and not a pure question of law and thus the lower Court erred when it held that the notice of preliminary objection of the Respondent is based on law when it did in fact raise issues of the date of the accrual of the cause of action. Counsel cited the case of Buraimoh v. Bamgbose [1989] 3 NWLR (Pt. 109) at 352 where it was held that the fact that an action is statute-barred is a matter of mixed law and fact.
Continuing, counsel argued that in the absence of a supporting affidavit to the notice of preliminary objection challenging the date of receipt of Exhibit CO12 and thus the date of the accrual of the cause of action as deposed to by the Appellants, the lower Court ought, for the purpose of determining the date of the accrual of the cause of action, to have confined itself to the Appellants originating processes by hearing the substantive matter and by not so confining itself, the lower Court erred in law and thereby occasioned a miscarriage of justice. Counsel cited the case of Enemuo & Anor v. Ezeonyeka & Ors [2016] LPELR-40171 (CA).
Counsel further stated that the date of the accrual of the cause of action which the Respondent introduced and which contradicted the date put forward by the Appellants in their originating processes is that the Notice of Revocation (Exhibit CO12) was allegedly dispatched by registered post (EMS Nigeria) to the 1st Appellant’s registered address on 23 November, 2016 – thus putting the date of the accrual of the cause of action for 23rd November 2016, the date of the alleged postage by registered post.
In furtherance of this issue, counsel submitted that the lower Court in placing reliance on the evidence of postage by registered post and in reliance on the case of Benin Electricity Distribution Company Plc v. Esealuka (Supra), the presumed date of the receipt of the Notice of Revocation (Exhibit CO12) is 23rd November, 2016 and that the presumption of receipt raised by the postage rule is no more than a rebuttable presumption. That the lower Court however misconstrued what was required to be rebutted – erroneously holding that “this presumption may be rebutted by showing that the mode of delivery was other than by postage”. Accordingly, counsel submitted that by Esealuka’s case, that the presumption is activated when:
a. the document is actually shown to have been posted,
b. then it is presumed that it was received
c. and the presumption of receipt must be rebutted by the addressee.
In the instant case, counsel argued that this presumption was clearly rebutted by the Appellants on 2 scores, the first being by the copy of the EVIS Nigeria delivery receipt. On the face of the receipt (Exhibit CA1), while the date of postage was stated as 23 November, 2016, the date of receipt and the name of the person that received it was Suleiman Isah Ijah on 3rd July 2017. Counsel then submitted that the presumption raised by the postage rule that the Notice of Revocation (Exhibit CO12) was delivered to the 1st Appellant thus stood clearly rebutted. The second rebuttal evidence is contained in paragraphs 4 & 5 of the further affidavit of Suleiman Ijah, wherein the said Ijah deposed to the fact that Exhibit CA1 was delivered to him personally on that 3/7/2018 and he acknowledged receiving it on the EMS receipt.
Finally on this issue, counsel submitted that the cause of action arose on 3rd July, 2017 and not 23 November, 2016 which shows that the Appellants’ action was brought within three (3) months of the accrual of the cause of action, and thus is not statute-barred. Counsel urged this Court to resolve issue one in favour of the Appellants.
In respect of issue 2, counsel submitted that the lower Court was wrong in holding that the alleged revocation of the 1st Appellant’s title to the piece of land covered by Certificate of Occupancy no. NG/GUR/023 dated 3rd June, 2008 was caused by a breach of the Memorandum of Understanding between the Appellants and the Respondent, and for the overriding public interest.
In furtherance of this submission, counsel states that in determining preliminary objection to a substantive suit, Courts should avoid delving into the merit of live issues. Counsel referred to the case of D.P.C.C.L v. B.P.C.L [2008] 1-2 SC 68 at 89-90 in support. Counsel further stated that the lower Court was wrong in pronouncing on the validity of the revocation as well as the Memorandum of Understanding between the Appellants and the Respondent. Counsel urged this Court to resolve this issue in favour of the Appellants.
In respect of issue 3, counsel argued that the act of revocation alone is a wrong giving rise to a mature and complete cause of action entitling the Appellants to seek for a redress. Counsel cited the case of C.S.S Bookshop Ltd v. RTMCRS [2006] 11 NWLR (Pt. 992) 530 and Olatunji v. Military Governor of Oyo State [1995] 5 IVWLR (Pt. 397) 602, to the effect that non-disclosure of the specific overriding public interest for which the 1st Appellant’s title in Exhibit CO2 was allegedly revoked violates Section 28 of the Land Use Act and thus can form the basis of a challenge of the alleged revocation. Counsel urged this Court to resolve this issue in favour of the Appellants and set aside the finding of the lower Court.
In respect of issue 4, counsel drew the attention of this Court to the error inherent in the far reaching findings of the lower Court, particularly when it held that, “Even if Exhibit CO1 (MOU) has binding force (and like I have held, it has not), it has no nexus with Exhibit CO2 revoked by Exhibit CO12”. Counsel then submitted that this finding is tantamount to pronouncing on the substantive issues at an interlocutory stage while retying on the authority of D.P.C.C.L v. B.P.C.L (supra) and urged this Court to accordingly set aside that part of the ruling.
Continuing, counsel argued further that the lower Court misconceived the heading of the agreement between the 2nd Appellant and the Respondent simply because it was captioned “Memorandum of Understanding” and went further to hold that a Memorandum of Understanding has no binding force even if the parties states it shall be binding. Counsel submitted while relying on the case of Nwachukwu v. Boji Boji Microfinance Bank Nigeria Ltd [2013] LPELR-20309, that the titling of a document as an MOU Memorandum of Understanding does not make the document non-binding on the parties thereto, and that determining whether a document or a Memorandum of Understanding as in the instant case is binding or not would turn to the examinations of the substantive provisions of the document or Memorandum of Understanding to determine whether the parties ab initio intends it to be binding. Counsel accordingly submits that Exhibit CO1 (Memorandum of Understanding) is not only a valid document but one with binding force, contrary to the finding of the lower Court. Counsel finally on this issue, urged this Court to set aside the finding of the lower Court that the Appellants’ originating summons disclosed reasonable cause of action against the Respondent.
In conclusion, counsel urged this Court on the strength of the foregoing, to resolve all the issues raised by the Appellants in their favour and to allow this appeal.
On the other hand, learned counsel, S. I. Ameh SAN, for the Respondents filed his Brief of Argument wherein two issues for determination were raised as follows:
i. Whether the lower Court rightly found that the Appellants’ suit was statute-barred (distilled from grounds 1, 2, 3, 4, 5 of the Notice of Appeal) and secondly.
ii. Whether the lower Court’s finding that the Appellants’ suit disclosed no reasonable cause of action could be faulted having regards to the case put before it by the Appellants (distilled from grounds 6, 7, and 8 of the Notice of Appeal).
In respect of issue 1, learned counsel reproduced Section 2(a) of the Public Officers Protection Law of Niger State which according to him is ipsissima verba as the provisions of the Public Officers (Protection) Act and submitted that the provision is a limitation of action provision. That the trial Court was right in its judgment in construing the plain words of the statutory provision to the effect that a public officer who acts in pursuance or execution or intended execution of any law or of any public duty or authority cannot be sued outside three months as provided in Section 2 of the Public Officers Protection Law. That the Governor is a public officer within the meaning of Section 2(a) of that law which is not only limited to natural persons but to public bodies, artificial persons and institutions or persons sued by their official names or titles.
The learned counsel argued further that an action instituted after the expiration of the period prescribed by a statute cannot be maintained or pursued where a statute of limitation prescribes a period which is 3 months in this case within which an action must be filed or commenced, such an action cannot be instituted after that period and doing so would render the suit statute-barred. Counsel cited the cases of I.N.E.C v. Enasito (2018) 2 NWLR (Pt. 1602) 63 and I.N.E.C v. Ogbadibo Local Govt. (2016) 3 NWLR (Pt. 1498) 167.
Furthermore, counsel argued that in determining whether a suit had become statute-barred, the time of accrual of the plaintiff’s cause of action must first be ascertained and that is usually done by examining the statement of claim to find out when the cause of action accrued and cited the case of Kasandubu v. Ultimate Petroleum Ltd (2008) 7 NWLR (Pt. 1086) 274 at P.297-298, Paras F – A; Kofa v. Kaita (2011) LPELR-8952(CA); Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 in support.
Counsel further submitted that the test for determining when a cause of action arises is when all facts necessary to give the claimant a right of action have occurred and when it can be said or there exists in the person who can sue, all the facts that have happened which are essential to prove that the plaintiff is entitled to judgment while citing the cases of Amede v. UBA (2007) LPELR- 9043(CA); Ikine v. Edjerode (2001) 12 SC Pt. 11 94; Iraguniwa & Anor v. Igah (2011) LPELR – 3862 (CA).
Counsel having reproduced the letter of revocation in page 10 of his brief stated that even the Appellants admitted that the letter is dated 15t November, 2016 and rendered itself to take effect three (3) weeks from the date thereof. That in determining when revocation is deemed to take effect, Section 28(7) of the Land Use Act 1978 would apply which provides that “the title of a right of occupancy shall be extinguished on receipt by him of a notice given under Sub-section (5) or on such later date as may be stated in the notice”. In view of this, learned counsel stated that the words of the statute are clear and unambiguous and must therefore be given their natural, plain, literal, and ordinary meanings while citing the cases of Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241 at P. 412; F.R.N. v. Osahon (2006) 5 NWLR (Pt. 973) 361 at P. 436. Counsel urged the Court to resolved this issue in favour of the Respondent and dismiss this appeal.
The learned counsel for the Appellant filed Appellants’ Reply brief. In the said reply brief, counsel submitted that whilst they do not contest that Exhibit CO12 was dispatched by registered post to be delivered to the 1st Appellant, they contend and have equally shown by credible evidence corroborated by the Respondent’s Exhibit CA1 that it was in fact never delivered to the Appellants until the Appellants’ Community Relations officer was given Exhibit CO12 at the land registry when he went to pay for the ground rent. In all, counsel urged this Court to allow this appeal.
COURT’S DECISION:
I have read very carefully all the processes filed by the parties in this appeal including the Appellant’s reply brief.
The Appellant raised 4 (four) issues for determination in this appeal. While the Respondent raised 2 (two) issues thereof. Issue one of the Respondent deals with whether this suit is statute-barred which the content is equally of issue one of the Appellant. Issue 2 (two) of the Respondent is on whether this suit did not disclose a cause of action which is the same with issue 4 of the Appellant. Issues 3 and 4 of the Appellant relate to the reasons behind the revocation of the certificate of occupancy and whether this suit is premature. From the foregoing, the issues formulated by the Appellant are more encompassing. I shall therefore deal with the issues as formulated by the learned counsel for the Appellant.
The first issue deals with whether the lower Court was right in holding that the Appellant’s action is statute-barred. The arguments of the Appellant in respect of this issue are two folds. The first is that the Public Officers Protection Law of Niger State is inapplicable to this case being an action challenging the revocation of a certificate of occupancy to land which has been held to be an action for recovery of land. In support of this contention, the learned counsel for the Appellant relied on the decision of this Court in Wuro Bogga Nigeria Limited & Anor V Hon. Minister of Federal Capital Territory & Anor (2009) LPELR-20032 (CA) where it was clearly held that a contest over “the revocation of the Right of Occupancy granted over a piece of land is “a claim for the recovery of land”. Counsel submitted that based on the recent judgment of the Supreme Court in Roe Limited v UNN (2018) LPELR-43855 which followed its earlier decision in F.G.N v Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162, it is firmly established that the Public Officer Protection Act does not apply in cases of recovery of land.
The learned counsel for the Respondent on the other hand, agreed with the submission that the Public Officers Protection Act does not apply to action in recovery of land. Counsel submitted thus:
“No doubt, the law is clear that Section 2 (a) of the Public Officers Protection Law does not apply to recovery of land, contracts, breach of contracts, land, recovery of land or land related matters and claims for work and labour done. See Salako v. L.E.D.B. & Anor 20 N.L.R. 169 per De Commarmond, S.P.J; Nigerian Ports Authority v. Construzioni General Farsura Cogefar SPA & Anor (1974) All NLR 463 at pp. 476 -477.”
See also Federal Government of Nigeria v. Zebra Energy (2002) 18 NWLR (Pt 798) 162 and Osun State Government v. Danlami (Nig,) Ltd 2007 9 NWLR (Pt. 1038) 66 (also reported in (2007) LPELR-SC 277/2002, per Kastina-Alu, JSC (as he then was).
Counsel submitted that however, the case presented by the Appellants at the trial Court was not a case of recovery of land but a challenge to the validity or otherwise of executive cum administrative decision of the Respondent revoking a certificate of occupancy for overriding public policy and for breach of a fundamental term of the said certificate. That a matter such as this, does not fall under the exceptions in Salako v. L.E.D.B & Anor (supra) but rather, it falls squarely within the ambit of acts or omissions envisaged under Section 2(a) of the Public Officers Protection Law.
At this point, it is very imperative to state that a holder of a Certificate of Occupancy validly granted by a Governor of State over a piece or parcel of land holds a radical title over that land. He is entitled to hold that parcel of land to the exclusion of every other person on the other hand, the revocation of the said certificate of occupancy extinguishes that person’s title over that land and naturally ends his possessory right over the land. It therefore follows that any challenge to any act of revocation of a certificate of occupancy no matter how couched naturally is an act for recovery of the land. I so hold.
I have looked at the claims of the Appellant at the trial Court in this case, while claim 1 seeks for a declaratory order that the purported revocation of the 1st plaintiff’s right of occupancy and lawful occupation of the land along Gurara River, allocated for hydropower project (to serve the public) and covered by the certificate of occupancy no. NG/GUR/023, dated 03 June, 2008 and registered as No. 47, at Page 47 in Volume 6 by a Notice of Revocation dated 1 November 2016 – is unconstitutional, illegal, and therefore null and void. Claim two is for an order setting aside the said Notice of Revocation and restoring the 1st Plaintiff’s right of occupancy and exclusive possession over the said land. From the foregoing this suit is clearly a claim for the recovery of land. I so find and hold. This issue is resolved in favour of the Appellants against the Respondent.
The second leg of this issue is on the purport of the principle on the presumption of a service by registered post as was held in the case of Benin Electricity Distribution Company Plc v Esealuka (2013) LPELR 20159. The learned Counsel for the Respondent reproduced the relevant portion of that judgment where the Court held as follows:-
“I am aware of the old Supreme Court Rules in Order VIII Rule 4 (2) which provides that any notice which is required to be given shall be deemed to be duly given if forwarded by registered post addressed to the person to whom such notice is required to be given shall be deemed to be duly given if forwarded by registered post addressed to the person to whom such notice is required to be given. In Monday Enweliku v. The State (1970) All NLR 57, the Supreme Court per Coker JSC was of the view that such notice is deemed to have been given on the day it was delivered for registered posting. The law is then that ordinarily if postage is proved, the termination or dismissal would take effect from the date of postage. In Jinadu v. Esurombi Aro supra, this Court held that there is a presumption that a letter sent by post was received by an addressee and that it is open to the addressee to contend that the presumption is not available to the addressor where the addressee fails to show that the mode of delivery was other than by post. See also Akintunde v. Ojekiere (1971) NMLR pg. 91; WASA v. Kalla (1978) 3 SC pg. 21. It stands to reason that where a document is shown to have emanated from a particular person, the burden is no longer on that person to show that it was received. The presumption is activated when the document is actually shown to have been posted. Then it is presumed that it was received. The presumption of receipt must be rebutted by the addressee.”
It is the argument of the Counsel for the Respondent that the Appellant received Exhibit CO12 (Notice of Revocation) on the 23rd November, 2016 the date which the document was posted by EMS registered mail. That by operation of law it is presumed that the Appellant received it on that same date of posting.
That the only way of rebuttal will be for the Appellant to show that it was delivered by any other means other than delivery by registered post. On the other hand, it is the contention of the Counsel of the Appellants that while the Appellants are not disputing that Exhibit CO12 was dispatched by registered post to be delivered by registered post that it was never delivered to the Appellants unit 3 July, 2011. That this fact was corroborated by the Respondent’s Exhibit CA1 which showed that it was received on 3 July, 2017 and by extension the date of accrual of the cause of action. That the rebuttal is on the presumed date of receipt and not on any other mode or method of service.
The Land Use Act itself provided in Section 28(7) provides that:
The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under Subsection (5) or on such later date as may be stated in the notice.
From Section 28 (7) above, the emphasis is on “receipt” of the notice, that upon the receipt of the notice or on a later date, the use of the word “later” clearly shows that the notice is subject to the receipt of the notice. It then means that the presumption and its rebuttal in relation to Section 28 (7) of the Land Use Act is on the date of receipt of the notice and not on the date of posting it. I so hold.
In the case, Exhibit CO12 (the Notice of revocation was issued on 1st November, 2016, by paragraph 3, “the revocation shall take effect within three (3) weeks from the date of this notice”. Three weeks from 1/11/2016 was on 22/11/2016 that is after the said three weeks has elapsed.
It is further the case of the Respondent that it was served by registered mail through EMS Courier Post on 23/11/2016, that the presumption of receipt by the 1st Appellant shall apply. The Respondent relied on its Exhibit CA1, as to show service on that 23/11/2017.
Incidentally, the same Exhibit CAI has the date of receipt as 3/7/2017. The Respondent wants the Court to accept the date of postage as reflected on Exhibit CA1 as 23/11/2017 and at the same time jettison the date of receipt as reflected on that same Exhibit CA1 being 3/7/2017. That is not done anywhere. An exhibit is accepted and interpreted as a whole and not in bits, parts and sections. After all, benefit and burden run together, as the Respondent is prepared to accept the benefit of the date of postage in Exhibit CA1 as being 23/11/2016. She must also accept the burden of the date of receipt of that document also as reflected on that same Exhibit CA1 as being 3/7/2017.
Interestingly, the said Exhibit CA1, has the name of Suleiman Isah Ijah as the recipient of Exhibit CO12 on that 3/7/2017. The said Suleiman Ijah Isah deposed to an affidavit acknowledging receipt of the document on that same date of 3/7/2017 at the Ministry where he went to pay rent for the site upon which he signed the endorsement column of an EMS receipt. These averments were never denied. They remained unchallenged. The Court is bound to act on them. See American Cyanamid v. Vitality Pharm. Ltd [1991] 2 NWLR (Pt. 171) 15 at 28 – 30, Nanna v. Nanna [2006] 3 NWLR (Pt. 966) 1.
Whether it was EMS Courier Company that delivered the document to the 1st Appellant or that it was delivered to the 1st Appellant by hand, 3 (three) things stand firmly established and they are firstly it was served on Isah Ijah on 3/7/2017. Secondly, upon receipt of it, he signed the acknowledgment column of the EMS receipt and thirdly, the EMS receipt, upon which Isa Ijah signed is Exhibit CA1. The implication clearly is that the presumption of the date of receipt of Exhibit CO12 as 23/11/2016 being the date of posting has been clearly and effectively rebutted.
From the foregoing, I hold that Exhibit CO12 was received by the 1st Appellant on 3/7/2017. Consequently, 3 months from that date is 2/10/2017. Therefore, this suit commenced on 11/08/2017 at the lower Court cannot be said to be statute-barred under Section 2(a) of the Public Officer Protection Act. This sub-issue is equally resolved against the Respondent and in favour of the Appellants.
Issues 2 and 3 shall be treated together. They deal with whether the lower Court was right to have held that the Certificate of Occupancy in issue was revoked for public purpose and failure to develop the land at the preliminary stage and that the suit was premature.
The learned counsel for the Appellants argued that these are issues that can only be dealt with at the hearing of the main suit. The learned counsel for the Respondent on the other hand, argued that the lower Court heard both the preliminary objection and the main suit together.
I do not agree with the learned counsel for the Respondent, granted that the lower Court adjourned both the preliminary objection and the main suit to be heard together the ruling delivered 12/03/2018 dealt with the Preliminary Objection only. The Court therefore ought to have limited to that objection. The golden rule is that lower Courts should not upon a ruling in an interlocutory application make orders which have the effect of prejudging or pre-empting the issues for adjudication in the substantive suit. See Group Danone v Voltic Nig Ltd (2008) 7 NWLR (Pt 1087) 637. These issues are also resolved against the Respondent.
The last issue is whether the lower Court was right in holding that the suit did not disclose a reasonable cause of action.
The learned trial Court held that because the document that gave rise to this suit (Exhibit CO1) is a memorandum of understanding and is therefore not binding. That does not represent the law. What determines whether any documents be it a contract, agreement and or memorandum of understanding is binding or not is not the title or form of the said document. It is rather the content manifesting the intention of the parties. If the parties intend any document to be binding on them and clearly states so, it is the duty of the Court to give effect to their intention. Clause 27(1) of the Memorandum of Understanding (Exhibit CO1) clearly states that “the parties agree that this Memorandum of Understanding is binding on the parties with respect to the project”.
From the foregoing, this issue is also resolved against the Respondent and in favour of the Appellants.
In sum, this appeal is not lacking in merit. It is meritorious. It ought to succeed and it has succeeded.
The ruling of the lower Court delivered on the 13-03-2018 in this matter is hereby set aside. This case is remitted back to the Chief Judge of Niger State to re-assign to another judge of the State to hear and determine this matter on its merit. This appeal is allowed. Parties to bear their costs.
Judgment is entered accordingly.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Kenneth Ikechukwu Amadi, Ph.D., JCA.
The trial Court struck out the appellants’ suit on the ground, amongst others, that the appellants’ action was statute-barred by virtue of Section 2(a) of the Public Officers Protection Law, Cap. 41, Laws of Niger State.
The law promptly, as it relates to the effect of limitation of action, is that a claimant must commence action for appropriate remedy or remedies for breach of his rights within the time stipulated by a law or statute of limitation. Where he fails to bring his action within the prescribed period, he cannot be heard anymore, notwithstanding that he has a cause of action, because the Court would have no jurisdiction over his claim after the prescribed time has elapsed. See Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1, Ekeogu v. Aliri (1990) 1 NWLR (Pt. 126) 345, Emiator v. Nigerian Army (1999) 12 NWLR (Pt. 631) 362, Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310) 137, Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489) 490 and Bakari v. Ogundipe (2021) 5 NWLR (Pt. 1768) 1.
For the purposes of limitation of an action, the time begins to run from the date on which the cause of action accrues. See Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241; Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637 and Eboigbe v. N.N.P.C (1994) 5 NWLR (Pt. 347) 649.
Under our jurisprudence, it is the claimant’s statement of claim that should be considered in determining whether or not there is a cause of action. See Combined Trade Ltd. v. All States Trust Bank Limited (1998) 12 NWLR (Pt. 576) 56.
It should also be noted that what is barred under a statute of limitation, such as Section 2(a) of the Public Officers Protection Law of Niger State, “is the action and not the cause of action” – Sifax Nigeria Ltd. v. Migfo Nigeria Ltd. (2018) 9 NWLR (pt. 1623) 138 at 184, per Augie, JSC.
To determine whether or not an action is statute-barred, by virtue of any law of limitation, the Court has to examine the writ of summons and statement of claim to discover when the alleged wrong was committed, and which gave the claimant a cause of action, with the date on which the writ was filed in Court. If the date on the writ is beyond the period permitted by the limitation law, then the action is statute-barred. See Egbe v. Adefarasin (supra), Ibrahim v. Lawal (supra) and Bakari v. Ogundipe (supra).
In this case, the foundational letter of revocation of the appellants’ right of occupancy, which gave rise to the appellants’ cause of action, was received by the appellants on 03/07/2017 and they commenced or instituted their action in the trial Court on 11/08/2017. Therefore, even if one assumes that Section 2(a) of the Public Officers Protection Law of Niger State applies to this case, which is legally not the case, the appellants’ action was not statute-barred.
It is for the foregoing reasons and the fuller reasons advanced by my learned brother that I also allow this appeal.
I abide by all the orders made by my learned brother.
DANLAMI ZAMA SENCHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my brother, Kenneth I. Amadi, JCA just delivered and I agree with the findings and conclusion arrived therein that this appeal is meritorious and it is accordingly allowed.
The ruling of the lower Court in suit no. NSHC/SD/67/2017 delivered on 12th March, 2018 is hereby set aside. The suit no. NSHC/SD/67/2017 delivered on 12th March, 2018 is hereby remitted back to the Honourable Chief Judge for re-assignment before another judge.
Appearances:
Ogunmuyiwa Balogun, Esq., with him, Godswill N. Iwuajoku For Appellant(s)
S.I. Ameh, SAN, FClArb, FCMC, with him, J.S. Okutepa, SAN For Respondent(s)