BASE DEV. LTD. v. A.G. FEDERATION & ANOR (2020)

BASE DEV. LTD. v. A.G. FEDERATION & ANOR

(2020)LCN/14794(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, November 13, 2020

CA/L/09/2017

RATIO

APPEAL: RULES GOVERNING THE FORMULATION OF ISSUES FOR DETERMINATION

Whichever option I take, one thing that is clear is that as required by law, the issues for determination must flow or be based on the grounds of appeal and I must obey the rule against proliferation of issues. Any issue formulated for determination outside the grounds of appeal will not be taken seriously as it will amount to nothing and invalid as the issues formulated must relate or arise from the grounds of appeal. See: Okoye & Ors vs. Nigerian Construction & Furniture Company Limited & Ors (1991) 6 NWLR (Pt.199) 501; Benjamin Ezenwa vs. Okpara Oko & Ors (2008) 1-2 S.C. 1; Jackie Phillips vs. Eba Odan Commercial & Industrial Company Limited (2013)1 NWLR (Pt.1336) 618. PER TOBI, J.C.A.

COURT: DUTY OF COURT TO CONSIDER ALL ISSUES BEFORE IT

I will consider them so as to comply with the legal requirement that a Court should consider all issues raised before it no matter how irrelevant they could be. See Okafor vs. Abumofuani (2016) 12 NWLR (Pt.1525) 117; Tatu vs. Estate of Late Alhaji I. Adamu (2015) 13 NWLR (Pt. 1476) 364. PER TOBI, J.C.A.

APPEAL: WHAT IS AN APPELLANT IN AN APPEAL CHALLENGING

An Appellant in an appeal is challenging the ratio decidendi of the decision of the Court and definitely not the case of the Appellant at the lower Court. It is trite that the ground of appeal must relate to the ratio decidendi of the judgment or ruling. In K.R.K. Holdings (Nig) Ltd vs. FBN & Anor (2016) 12 S.C. (Pt. II) 85, the apex Court held:
“…every Faculty of Law sophomore is, (or ought to be), aware of, grounds of appeal must relate to the ratio decidendi of the judgment or decision appealed against, Okponipere v. State (2013) 10 NWLR (pt. 1362) 209. In other words, an appeal is usually against the ratio decidendi and generally, not against an obiter dictum, U. T. C. Nigeria Limited v. Pamotei (1989) 2 NWLR (pt. 103) 244; Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387; Ede v. Omeke (1992) 5 NWLR (pt. 242) 428; Dakar v. Dapal (1998) 10 NWLR (Pt 577) 573.”
The Supreme Court per Galumje, J.S.C. in Agwu & Anor vs. Julius Berger Nig Plc (2019) 11 NWLR (Pt. 1682) held:
“The first arm of the argument of the Learned Counsel for the appellant is based on the general rule that a ground of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. This is a well settled proposition of Law in respect of which there can hardly be a departure.”
Similarly, in Okechukwu vs. Obiano (2020) 8 NWLR (Pt. 1726) 276, the apex Court held:
“A ground of appeal does not only give notice to the respondent, it must be against the decision being appealed against and should constitute a challenge to the ratio of the decision. Where a ground of appeal does not constitute a complaint against the decision being appealed, it is incompetent and liable to be struck out.”
Finally, this Court per Ogunwumiju, J.C.A. in Okali & Anor vs. Okali & Anor (2017) LPELR- 42838 (CA) at page 7 held:
“It is elementary law that grounds of appeal must arise from the decision against which an appeal lies. The ground of appeal must perforce attack the ratio decidendi of the decision of the Court appealed against. In essence, only an issue pronounced upon by the trial Court can be subject of a ground of appeal. See: Saraki v. Kotoye (1992) 9 NWLR Pt. 264 Pg. 156, C.C.B. Plc. v. Ekperi (2007) 3 NWLR Pt. 1022 Pg. 493, Okafor v. Abumofuani (2016) LPELR-40299(SC).”
Allowing a ground of appeal that does not challenge the ruling of a Court but rather present before the Court the facts in the lower Court in its totality without regards to the judgment or ruling, that will turn the appellate Court to the Court of first instance. PER TOBI, J.C.A.

FAIR HEARING: THE CONCEPT OF FAIR HEARING

The issue to be addressed here relates to fair hearing and it is therefore important, this is because just like the issue of jurisdiction once a party succeeds in proving before a Court that he was denied fair hearing, the whole proceeding and the judgment reached therein will amount to a nullity. In fact, the brilliance of the judgment will be of no moment as the concept of fair hearing is paramount. See: Chukwu vs. State (2019) 12 NWLR (Pt. 1687) 508; Elias vs. Ecobank (Nig.) Plc (2019) 4 NWLR (Pt. 1663) 381.
The concept of fair hearing is seen in the principle that parties should be given opportunity to present their case and a person should not be a judge in its own cause. Let me however say, that a party cannot complain of denial of fair hearing because the Court’s decision did not favour him. It is when, the lower Court did not give a party the opportunity to present his case or refused to consider his case that it can be said that he was denied fair hearing. See: Bio vs. State (2020) 7 NWLR (Pt. 1723) 218; CBN vs. Akingbola (2019) 12 NWLR (Pt. 1685) 84. PER TOBI, J.C.A.
LEGISLATION: EXTENT OF THE PROTECTION OF PUBLIC OFFICERS AND INTERPRETATION OF SECTION 2(A) OF THE PUBLIC OFFICERS PROTECTION ACT

In addressing this issue, the relevant provision to look at is Section 2(a) of the Public Officers Protection Act. I will reproduce the section hereunder:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect—
(a) Limitation of time—the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:”
By the above provision, it is clear that the provision only relates to public officers who are protected in the course of carrying out their legitimate public duty. To enjoy the protection, the person must be a public officer who is acting within his legitimate duties. It stands to reason that the law does not protect a person who is not a public officer or even a public officer who arbitrarily uses his power or acted clearly outside his jurisdiction. Let me take a little excursion into the case law on the subject. In B.P.E. vs. Reinsurance Acquisition Group Ltd & Ors (2008) LPELR-8560 (CA) at pages 38 – 41, it was held:
“The persons whom the provisions of the Public Officer Protection Act would not cover are persons who are independent contractors for the provision of services for a public of (sic) services body or authority by virtue of contract. The words “Public Officer” or “any person for the purpose of the Public Officers Protection Act and as stipulated in Section 2 of the Public Officers Protection Law not only refer to natural persons or persons sued in their personal names. They extend to public bodies, initial persons, institutions or persons sued by their official names or titles. See F.G.N. v. Zebra Energy Ltd (2002) 18 NWLR (pt. 798) 162 at 195; Ibrahim v. J.S.C. Kaduna State (1998) 14 NWLR (pt. 584) 1; Permanent Secretary Ministry of Works etc. v. Balogun (1975) 5 SC 57.
The intention of the Legislature in the Public Officers (Protection) Law is to provide protection for public officer, corporate or incorporated bodies in the discharge of their public assignment. Offoboche vs. Ogoja Local Government (2001) 16 NWLR (pt. 739) 458… The defence of the Public Officers Protection Law can avail public officers who act in execution of their duty without malice. Thus motive on the part of the public officer is relevant but the mala fide of the public officer must be made an issue. Okeke vs. Baba (2000) 3 NWLR (Pt. 798) 644 at 652; Eboigbe vs. NNPC (1994)5 NWLR (Pt. 347) 649; Sanda vs. Kukawa Local Government (1991)2 NWLR (Pt. 174) 379; Olaosebikan vs. Williams (1996) 5 NWLR (Pt. 449) 437.

In Offoboche vs. Ogoja Local Government & Anor (2001) 16 NWLR (Pt. 739) 458, the Supreme Court held:-
The Public Officers (protection) law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification. Thus the law will not apply if it is established that the defendant had abused his position for the purpose of acting maliciously. In that case he is not acting within the terms of the statutory or other legal authority. In such state of facts he has abused his position for the purpose of doing wrong, and the protection of the law would never apply to such a case. Nwankwere vs. Adewunmi (1966) 1 All NLR 129; Lagos City Council vs. Ogunbiyi (1969) 1 All NLR 297.
The object of the public officers protection law is to afford protection to public officers in respect of anything done in the execution of or carrying out their duty. The protection comes into play after the expiration of 3 months from the date of the commission of the act or acts which give raise to the cause of action. Per Uwais J.S.C. (as he then was) in Yabugbe vs. COP (1992) 4 NWLR (pt. 234) 152 at 176; Egbe vs. Adefarasin (1985) 1 NWLR (pt.3) 549, Egbe vs. Alhaji (1990) 1 NWLR (pt. 128) 546; Ekeogu vs. Aliri (1991) 3 NWLR(Pt. 179) 258.”
Similarly in Sulgrave Holdings Inc & Ors vs. FGN &Ors(2012) 17 NWLR (Pt. 1327) 309, the Supreme Court held:
“The Public Officers Protection Act is a Statute of limitation and the import of Section 2(a) thereof, is that where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance or execution of any law or of any default in the execution of any law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within THREE Months of the act, neglect, or default complained or in the case of continuing damage or injury within THREE MONTHS next after the ceasing thereof. What this means is that Public Officers Protection Act removes the right of action, the right of enforcement act and the right to judicial relief in a plaintiff. This leaves Respondents with a bare and empty or hollow cause of action which he cannot enforce because the alleged cause of action is statute-barred, and cannot be maintained. See FALAE V. ATTORNEY GENERAL OF OYO STATE (1982) 4 SC P.1. OBIEFUNA V. OKOYE (1961) 1 SCNLR 144; EGBE V. ADEFARASIN (NO.1) (1985) 1 NWLR (Pt.3) 549.”
The point must be made that the Act as shown in the cases above will only protect Public Officers who are operating within the limit of their public function. The Supreme Court per Mary Odili, J.S.C. in A.G. Adamawa & Ors vs. A.G. Federation (2014) LPELR-2322 (SC) at 32-33 held thus:
“Indeed, the Court per Onnoghen, J.S.C., had stated in clear terms in Hassan vs. Aliyu (supra) 591 thus:-
“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers’ Protection Act.”
I shall quote Section 2(a) of Public Officers’ Protection Act for clarity and thus:-
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect-
Limitation of time:
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”
The Supreme Court clearly placed the limit of the application of the section to public officers in Hassan vs. Aliyu (2010) 17 NWLR (Pt. 1223) 547 in these words:
“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act. It is the duty of the plaintiff/appellant to adduce evidence or facts to establish the bad faith, lack of semblance of legal justification, etc. The facts to be produced must exist to enable the Court find the absence of semblance of legal justification, etc. otherwise once it is established that the action was instituted outside the statutory period of three months, the action is time barred and the Court will have no jurisdiction to entertain same.”
The purpose of the Act was brought out clearly by this Court in Tajudeen vs. F.I.R.S. (2020) 12 NWLR (Pt. 1739) 459 in these words:

“The primary objective of the Public Officers (Protection) Act is to protect public officers who have acted pursuant to the duties of their office from being harassed with stale claims. The Act is designed to protect public officials who are very busy people from being distracted or submerged in a sea of litigation at times at the instance of professional litigants. A situation in which public officers spend the limited precious time they have for their work in defending actions in Court is not in the public interest. To strike a balance, persons aggrieved by the action of such public officers must remain fully and consciously agitated and must commence their action in Court promptly within three months, otherwise their action will be declared stale and statute-barred. The Act gives full protection or cover to all public officers or persons engaged in the exercise of public duties who at all material times acted within the confine of their public authority and did not act outside their statutory or constitutional duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment, or outside their statutory or constitutional duty, they automatically lose protection of the law.”

The period within which an action can be commenced against a person covered by the said Section 2 (a) of the Act is 3 months from when the cause of action arose. Any action commenced against a Public Officer covered by this section after 3 months will be statute barred. The implication of this is that such an action is dead on arrival and no amount of legal oxygen by the most brilliant and articulate lawyer can bring such an action back to life. No matter how serious or good the case can be, it is over for such an action. SeeElukpo vs. Ibrahim & Anor. (2013) LPELR-20235 (CA). The implication is that people should not sleep over their right as equity does not aid the indolent. See Att. Gen. of Rivers State vs. Ude (2006) LPELR-626 (SC). PER TOBI, J.C.A.

ACTION: LEGAL EFFECT OF DECLARING AN ACTION STATUTE BARRED

The legal effect of declaring an action statute barred is without dispute. This means that the right which a person had to institute an action is taken away from the person on the ground that the action is statute barred. I must say that the position of the law is that should a Court hold that an action is statute barred, that ends the journey of the case. The case dies without any opportunity of resurrection. A person in coma has a chance of coming back to life but once clinically certified dead cannot come back to life except if a miracle takes place.
In law, a statute barred action cannot miraculously resurrect. Once an action is statute barred, the only order a Court can make is to order the burial of the case as there is no cause of action capable of been litigated. See Ataloye & Anor vs. The Executive Governor Ondo State & Ors (2014) 8 NWLR (Pt. 1410) 620. In this respect, the cause of action is extinguished and cannot be maintained in Court. The right of the aggrieved party to an action, enforcement and judicial relief is removed as he is left bare and empty with a cause of action which is unenforceable and not actionable. See Sosan vs. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241; Mr. Popoola Elabanjo & Anor vs. Chief (Mrs.) Ganiat Dawodu NSCQR vol. 27 2006 page 318; Nasir vs. Civil Service Commission Kano State & Ors (2010) 6 NWLR (Pt. 1190) 253. The Supreme Court in Hassan vs. Aliyu & Ors(2010) 7-12 SC 21; (2010) LPELR-1357 (SC) 89-90 per Adekeye J.S.C., drove home the above point in these words:
“When an action is statute-barred, the plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation had elapsed. An action commenced after the expiration of the statutory period within which an action must be brought is not maintainable. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being properly instituted before the Court. In effect, the right of the appellant to commence an action against the withdrawal and substitution of the 1st respondent is extinguished by operation of law – that is, Section 2(a) of the Public Officer Protection Law Cap 379 Laws of the Federation 1990. See EGBE V. ADEFARASIN (1987) 1 NWLR PT. 47 PG. 1; OBIEFUNA V. OKOYE (1964) 1 ALL NLR PG. 96; ADEOSUN V. JIBESIN (2001) 11 NWLR PT. 724 PG. 290; IBRAHIM V. JUDICIAL SERVICE COMMITTEE KADUNA STATE (1998) 14 NWLR PT. 584 PG. 1; EBOIGBE V. NNPC (1994) 5 NWLR PT. 347 PG. 649; ODUBEKO V. FOWLER (1993) 7 NWLR PT. 308 PG. 637.”
Similarly, the apex Court in ACN & Anor vs. INEC & Ors (2013) 13 NWLR (Pt. 1370) 161 per Ngwuta J.S.C. held:
“In the context of the appeal before us and in the light of the meaning of limitation law, or statute, a cause of action includes a right to appeal. 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 VS. JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1998) 14 NWLR (PT. 584) 1 SC where this Court, per Iguh, J.S.C., 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 P.N. Udoh Trading Co. Ltd vs. Abere (2001) FWLR (Pt. 57) 900 SC. PER TOBI, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

BASE DEVELOPMENTS LIMITED APPELANT(S)

And

1. ATTORNEY GENERAL OF THE FEDERATION 2. NIGERIAN MINING CORPORATION RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is predicated upon the decision of Hon. Justice M.S. Hassan of the Federal High Court sitting in Lagos in Suit No. FHC/L/CS/757/2015 – Base Development Limited vs. Attorney General of Federation & Anor delivered on 14/10/2016. The ruling of the lower Court found on pages 1281 – 1304 of vol. III of the records of appeal was based on the Respondents (Defendants/Applicants at the lower Court) preliminary objection filed on 29/6/2015 seeking for the following orders:
“1. AN ORDER of Court striking out this suit on the ground that the Court lacks jurisdiction to entertain same as presently constituted or formulated.
2. AN ORDER of Court striking out this suit for non-disclosure of reasonable cause of action against the Defendants.
3. And for such further Order or other Orders as this Honourable Court may deem fit to make in the circumstances.”

The grounds of the application are as set out on page 322 of vol. I of the records of appeal.

The lower Court after considering the preliminary objection taking into account the affidavit evidence, the

documents attached to the affidavit and the submissions of counsel to both parties granted the preliminary objection dismissing the suit held on pages 1303-1304 of vol. III of the records of appeal thus:
“Having regard to the foregoing and for the various reasons given, I am satisfied that the appropriate thing to do in the circumstances of this case is to decline jurisdiction and to dismiss this suit. It is hereby dismissed.
I make no Order as to cost.”

The reason the Court gave for the above decision is that, in agreeing with the Respondents (Defendant/Applicant in the lower Court), the action was statute barred since contrary to the mandatory provision of Section 2 (a) of the Public Officers Protection Act, Cap P41 Laws of the Federation (referred to in this judgment as the Act) the Appellant did not commence the action within 3 months of when the cause of action accrued. The Respondents been Federal Government Agencies ought to have been proceeded against within 3 months when the cause of action accrued in 2005. Consequent upon this, the lower Court declined jurisdiction and dismissed the suit on grounds that it is statute barred.

This reasoning is contained in the judgment specifically on pages 1301-1304 of vol. III of the record of appeal.

The Appellant, naturally dissatisfied with the decision of the lower Court decided to exercise its constitutional right of appeal by filing this appeal vide a notice of appeal filed on 18/10/16 but was amended via an amended notice of appeal filed on 1/2/18. The extant notice of appeal therefore is the amended notice of appeal dated 31/1/18 but filed on 1/2/18. The appeal is anchored on six grounds of appeal. The grounds are hereunder reproduced without their particulars.
GROUND 1
The learned trial Judge erred in law when he declined jurisdiction to entertain the matter and dismissed same on the ground that the provisions of the Public Officers Protection Act applies to the suit leading to this appeal and that the action leading to this appeal was statute barred, same having been commenced more than three months after the accrual of the cause of action.
GROUND 2
The learned trial Judge erred in law when he held that the Plaintiff’s cause of action accrued upon the issuance of ML 19 in the 2nd Respondent’s name in

2005.
GROUND 3
The learned trial Judge erred in law when he relied on the Respondents’ averments to decline jurisdiction over the Appellant’s claim.
GROUND 4
The learned trial Judge erred in law when he held that there was no evidence of bad faith or injustice on the part of the Respondents.
GROUND 5
The learned trial Judge erred in law when he failed to consider the Appellant’s submission that the Public Officers’ Act does not apply to contractual claims, and thereby breached the Appellant’s right to fair hearing.
GROUND 6
The learned trial Judge erred in law when he failed to strike out the offending paragraphs of the Respondent’s affidavit in support of their preliminary objection.

I will now look at the briefs of the parties as filed by their respective counsel. The Appellant’s brief dated 31/1/18 and filed 1/2/18 but deemed as properly filed and served on 18/9/18 was settled by Bello Salihu Esq. The Respondents’ brief which was filed on 20/4/18 but deemed properly filed and served on 18/9/18 was settled by Akinlonu F. Foluso Esq., I will start with the

Appellant’s brief wherein four issues for determination were raised for the consideration of this Court to wit:
1. Whether the provisions of the Public Officers Protection Act avail the Respondents in the circumstances of this case?
2. Whether the Appellant’s cause of action accrued in 2005 as held by the learned trial Judge?
3. Whether the learned trial Judge was right to decline jurisdiction on the ground contained in the Respondent’s disposition, that the Appellant’s interest in ML 19 was extinguished by the Respondent’s revocation of ML 19 in 2012?
4. Whether the learned trial Judge’s failure to consider the Appellant’s submissions that the Public Officers’ Protection Act does not apply to contractual claims and that some paragraphs of the Respondents’ affidavit in support of their preliminary objection offended the Evidence Act 2011 occasioned a breach of fair hearing and miscarriage of justice to the Appellant?

On issue one, it was submitted by learned counsel that the protection provided by the Act is not sacrosanct as it does not apply in certain situations especially

where the cause of action is contractual in nature. He backed up this submission with the case of FGN vs. Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162 @ 196-198. Counsel cited Section 41 of the Companies and Allied Matters Act to the effect that no member of the company is empowered to deal with the company’s assets as such power resides with the directors. Counsel further submitted that the Appellant’s case is that the 2nd Respondent owes the Appellant a contractual obligation to adhere to the Articles of Association of RM and not arbitrarily deal with its assets, and that the 2nd Respondent breached this contractual duty with the help of the 1st Respondent. He relied on Alade vs. Alic (Nig) Ltd (2010) 19 NWLR (Pt. 1226) 111 @ 127.

Counsel submitted that contrary to the learned trial Judge’s finding that there was no evidence of bad faith and injustice on the part of the Respondents, the Appellant’s averments in its Statement of Claim are clearly to the effect that the Respondents acted in bad faith and unjustly to the Appellant. Going further, counsel contended that the Respondents’ averments were riddled with so many

inconsistencies and evasive denials that the learned trial Judge should have been wary of relying on them in upholding the Respondents’ contentions. Counsel placed reliance on Offoboche vs. Ogoja L.G (2001) 16 NWLR (Pt. 739) 458 @ 485 in submitting that in the face of the Appellant’s averments and the inconsistencies and contradictions in the Respondents’ depositions, the learned trial Judge wrongly held that there was no evidence of bad faith or injustice before him, and the said decision is thus perverse. On this issue, it is the final submission of counsel that in the light of the Appellant’s argument, the Respondents were precluded from relying on Section 2 of the Public Officers’ Protection Act as regards the Appellant’s suit for the reasons that the Appellant’s claims are contractual in nature and the Respondents acted in bad faith.

On issue two, it is the submission of counsel that the accrual of the Plaintiff’s cause of action is to be determined solely by the Plaintiff’s claims. He relied on Woherem vs. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ 416. With respect to the re-issuance of ML 19,

it is the contention of counsel that there was no cause of action capable of enforcement in 2005 since the re-issuance of ML 19 in the name of the 2nd Respondent was with the concurrence of RM in which the title was vested prior to the re-issue, a dispute cannot be said to have arisen. He placed reliance on Oni vs. Igbalajobi (2006) 9 NWLR (Pt. 984) 180 @ 187; Chevron vs. Lonestar Drilling (Nig) Ltd (2007) 16 NWLR (Pt. 1059) 168 @ 177 where the Supreme Court defined cause of action. It is learned counsel’s submission that in the light of the definition of the Supreme Court and with reference to the Appellant’s averments, the Respondents’ wrongful act which gave rise to the Appellant’s complaint occurred in April 2015 when the Respondents attempted to dispose it of ML 19.

It is the contention of Appellant’s counsel that had the learned trial Judge adhered to the legal principle as stated in Woherem vs. Emeruwa (supra), he would not have arrived at the conclusion that the Appellant’s cause of action accrued in 2005. Counsel further contended that this conclusion is not traceable to the Appellant’s Statement of

Claim, as there is nothing in the Statement of Claim to indicate that the Appellant was aggrieved by the issuance of ML 19 in the 2nd Respondent’s name.

On issue three, it was contended by Appellant’s counsel that the ground of the Respondents’ objection relevant to the decision of the learned trial Judge is that there is no live issue upon which the Court’s jurisdiction could be invoked since the res or subject matter of the case had been revoked in 2012. It was submitted by counsel that by the decision of Chevron vs. Lonestar Drilling (Nig) Ltd (supra) @ 179, where there is a reasonable cause of action, the Court assumes jurisdiction, regardless of the quality of the defence. Learned Counsel further submitted that the learned trial Judge erred in declining jurisdiction over the Appellant’s alternative claim on the basis of the Respondents’ averments. He placed reliance on Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 @ 549. Going further counsel relying on Chevron vs. Lonestar Drilling (Nig) Ltd (supra) @ 184-185; Yusuf vs. Akindipe (2000) 8 NWLR (Pt. 669) 376 @ 386 posited that the

Respondents’ assertion that the right sought to be protected had been extinguished goes to the merits of the Appellant’s claim and the Respondents should have been made to prove their assertion at trial. It is the final submission of counsel on this issue that the trial Judge erred in law when he went outside the Statement of Claim to determine that the Appellant’s right had been extinguished.

On issue four, it is the contention of Appellant’s counsel that the Appellant’s preliminary points challenging paragraphs 6, 7, 9, 15, 16, 17, 18, 19, 33, 35, and 52 of the affidavit in support of the Respondents’ preliminary objection on the ground that they offend Section 115(1) and (3) of the Evidence Act was not considered by the lower Court. Similarly, his submission on paragraphs 25, 26, and 51 of the said affidavit that it is not in compliance with Section 115(2) of the Evidence Act was also not considered. It was argued by counsel that the learned trial Judge failed to rule on the validity of these challenged paragraphs of the Respondents’ affidavit. It is therefore the submission of counsel that the failure of

the learned trial Judge to rule on the Appellant’s submissions on the applicability of the Public Officers’ Protection Act to contractual claims and on the validity of the aforementioned paragraphs of the Respondents’ affidavit occasioned a miscarriage of justice to the Appellant. Going further, counsel contended that in the absence of these paragraphs, there would be no deposition to sustain the alleged vesting of interest in ML 19 solely on the 2nd Respondent in 2005 which formed the basis of the decision of the learned trial Judge that the Appellant’s main claim is statute barred.

It is the submission of counsel that the failure of the learned trial Judge to consider the two aforementioned issues raised by the Appellant occasioned a breach of fair hearing to the Appellant because the learned trial Judge is required to consider all issues raised and submissions made by the Appellant in coming to his decision. He cited Ovunwo vs. Woko (2011) 17 NWLR (Pt. 1277) 522 @ 546; Okonji vs. Njokanma (1991) 7 NWLR (Pt. 202) 131 @ 150. It is the further submission of counsel that the result of the breach of the Appellant’s right to

fair hearing occasioned by the learned trial Judge’s failure to determine the pertinent issues raised in the Appellant’s final address is that the decision is a nullity. He relied on Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23 @ 44. On a whole, it is the final submission of learned counsel to the Appellant that the decision of the learned trial Judge is vitiated by the breach of the Appellant’s right to fear hearing. Learned counsel urged this Court to allow this appeal, set aside the ruling of the lower Court and remit the suit for hearing before another Judge of the Federal High Court.

As earlier mentioned, the Respondents’ brief filed on 20/4/18, deemed on 18/9/2018 was settled by Akinlonu F. Foluso Esq. Five issues were raised for determination to wit:
1. Whether the Court below was right when the Court held that the action of the Plaintiff/Appellant was statute barred by virtue of Section 2(a) of the Public Officers Protection Act.
2. Whether the Court below was right when the Court held that upon due revocation of the former Mining Lease No. 19 in October, 2012 the Appellant’s action at the Court below was

caught by Statute of Limitation, Or in the alternative, whether there is live issue upon which the Appellant’s action could be tied upon due revocation of the former Mining Lease No. 19 in 2012.
3. Whether there is any evidence of bad faith or stark injustice perpetrated against the Appellant by the Respondents in the course of carrying out their statutory regulatory duties concerning the revocation and re-allocation of former Mining Lease No. 19.
4. Whether non-pronouncement on all the issues raised at the Court below by the trial judge occasioned a breach of fair hearing and miscarriage of justice against the Appellant.
5. Whether the Court below has the jurisdiction to adjudicate on the Appellant’s action at the Court below in the absence of proper and necessary parties to this suit.

On issue one, Respondent’s counsel submitted that, contrary to the Appellant’s assertions, the Court below was right when it held that the Appellant’s action at the Court below was caught by Section 2(a) of the Public Officers Protection Act. The learned trial Judge was right in its findings that the cause of action in this

matter accrued to the Appellant in 2005 when former mining lease 19 area was re-allocated to the Nigerian Mining Corporation. Counsel contended that apart from the main relief of the Appellant as contained in its Statement of Claim, the averments contained in paragraphs 9, 10, 11, 12, 13 and 14 of the statement of claim would be of great assistance to this Court in determining whether or not the Court below was right in its findings that the cause of action arose in 2005 or whether same accrued in 2015. It is the submission of counsel that from the facts contained in the statement of claim, there is no iota of doubt that the Appellant was only challenging the alleged seizure of ML 19 and the subsequent re-allocation of same to the 2nd Respondent.

On the argument of the Appellant that the case was rooted in contract, it was submitted by counsel that the Appellant’s case is not rooted in contract but that the entire transactions falls squarely within mining related activities such as the grant, revocation and concession of mineral title as governed by the provisions of the Nigerian Mineral and Mining Act. It was further submitted by Respondents’

counsel that the case of FGN vs. Zebra Energy Limited (supra) cited by the Appellant is not applicable to this appeal and should be discountenanced.

It was contended by learned counsel for the Respondents that even though the Appellant may have a cause of action, same can no longer be enforced or sustained against the Respondents, as the right of action, the right of enforcement and the right to judicial relief had been removed by virtue of Section 2(a) of the Public Officers Protection Act and the Appellant is only left with a bare and empty cause of action. For this position, counsel relied on Sulgrave Holding Inc vs. FGN (2012) 17 NWLR (Pt. 1329) 309 @ 334; Aliyu Ibrahim vs. Judicial Service Committee Kaduna State (1993) 14 NWLR (Pt. 584) 1 @ 31-32; Egbe vs. Adefarasin (1985) 1 NWLR (Pt. 3) 549; Eboigbe vs. NNPC (1994) 5 NWLR (Pt. 347) 649 ratio 5 @ 659; NPA vs. Lotus Plastic Ltd (2005) 19 NWLR (Pt. 959) 158 @ 182, 188-189. Counsel further relied on Aremo II vs. Adekanye (2002) 2 NWLR (Pt. 644) 257 @ 271 on the position of the law on how to determine the period of limitation. Learned Counsel urged this Court to resolve issue one in favour of the

Respondents.

On issue two, it is the submission of counsel that the lower Court was right when it agreed with the Respondents’ counsel that upon due revocation of former ML 19 in October 2012 and the Appellant did not deem it fit to take any action then, the entirety of the Appellant’s action is statute barred. Counsel relied on Black’s Law Dictionary 9th Ed. by Bryan A. Garner @ 1435, on the effect or meaning of the word revocation. It was contended by counsel that from the definition of the word, upon the revocation of former ML 19 in 2012, all existing legal interest in the said Mining lease had been annulled and ceased to exist from that date and therefore anyone aggrieved by the revocation ought to have commenced an action against the revocation within three months next to the revocation. Learned counsel placed reliance on Section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria in submitting that the power of the Court can only be invoked if there is any question for determination as to the civil rights of the person or persons concerned. It was also counsel’s submission relying on Adepoju & Ors vs. Olona Yinka & Ors

(2012) NWLR (Pt. 1288) 567 @ 583 that upon due revocation of the former Mining lease 19 in 2012, there is no live issue upon which the jurisdiction of this Court could be invoked as the entire action has become academic. Counsel argued that the entire claim of the Appellant is contaminated with and lumped up with incompetent claim and as such the lower Court was right in dismissing the entire claim for want of jurisdiction. For this position, counsel relied on Nigerian Deposit Insurance Corporation (NDIC) vs. Government Council of the Industrial Training Fund & Anor (2012) 9 NWLR (Pt. 1305) 252 @ 276.

On issue three, it is the submission of counsel that the lower Court was right when it held that there was no evidence of bad faith or stark injustice before the Court contrary to the Appellant’s submission. It is the contention of the Respondents’ counsel that at no time was there any contract between the Appellant and the Hon. Minister of Mines and Steel Development or Mining Cadastre Office on how to administer, superintend and or regulate the issuance, revocation and modification of mineral titles. It is the

submission of learned counsel that the Hon. Minister of Mines and Mining Cadastre Office having waited for about 9 months after the service of the demand notice without any response from the then holder of the former mining lease, a notice of revocation was served on the holder of the mineral title in accordance with the relevant provisions of the Nigeria Minerals and Mining Act, 2007. It was the argument of counsel that if any person or party is guilty of bad faith, it is the Appellant, as the Appellant through an affiliate or sister company by name, Promethean Resources Limited participated in the bid process for the concessioning of the former area covered by mining lease 19 and that it was when the company failed to be the preferred bidder that they decided to institute the action which is the subject of this appeal. It is the submission of learned counsel that the Appellant having participated in the competitive bid process for the concessioning of former mining lease 19 cannot turn around after the completion of the exercise to deny the knowledge of the concessioning of the mining site. It is the final submission of counsel on this issue that the

Appellant would not have instituted this action at the lower Court, if it or its affiliate or subsidiary company had emerged as the preferred bidder.

On issue four, it is the submission of counsel that it is not in all cases that a trial Judge would pronounce on all issues raised before him, particularly when the Judge had already discovered from the facts and evidence before him that it has no jurisdiction to determine or adjudicate on the action or matter. It is the contention of counsel that the learned trial Judge having examined and evaluated all the issues raised before it and discovering that the action was caught by statute of limitation which dispossessed it of jurisdiction, deemed it not necessary to go into other issues raised. Counsel argued that it would amount to a waste of the precious time of the Court to begin to pronounce on all other issues raised when the entire action has been dismissed for want of jurisdiction. For this submission, counsel argued that same cannot be said to have contravene the doctrine of fair hearing enshrined under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.

With respect to the Appellant’s argument that the learned trial Judge failed to strike out some averments in the Respondents’ affidavit, it is the contention of learned counsel that the lower Court having critically examined the said averments, agreed with the Respondents that the averments were statement of facts. It is the submission of Respondents’ counsel that the lower Court considered the argument of the Appellant on whether the Appellant’s claim is rooted in contract when it agreed in totality with the submissions of the Respondents.

Lastly on issue five, counsel cited Section 15 of the Court of Appeal Act, together with Order 4 Rules 1, 2, 3 and 4 of the Court of Appeal Rules 2016 in positing that this Court can be vested with the jurisdiction of a trial Court. He relied on Agwarangbo vs. Nakande (2000) 9 NWLR (Pt. 672) 341 @ 349 ratio 15; Okoya vs. Santilli (1990) 2 NWLR (Pt. 131) 172; Fatuade vs. Onwoamanam (1990) 2 NWLR (Pt. 132) 322 to the effect that this Court has the power to correct any omission in the judgment of the trial Court even though there is no such application before the trial Court in the interest of justice. The

Respondents’ counsel raised the issue of proper parties and submitted that neither the present Appellant nor the present Respondents are the proper parties to the suit at the Court below. Learned counsel placed reliance on Section 299 of the Companies and Allied Matters Act, Foss vs. Harbotttle (1843) 2 Hare 461; Ladejobi vs. Odutola Holding Limited (2002) 3 NWLR (Pt. 753) 121; N.I.B Investment W/A vs. Omisore (2006) 4 NWLR (Pt. 969) 172 in positing that where there is a wrong done to a company or in an action to recover money or damage due to the company, it is only the company itself and not an individual or minority shareholder that can sue or take action for redress. Counsel argued that the Appellant is not Ririwai Mines Limited, the former holder of the mining lease 19 prior to re-designation and re-allocation of same to the 2nd Respondent in 2005 and as such does not have the legal right to institute this action. Counsel claimed that the Appellant even though claiming to be fighting for and on behalf of Ririwai Mines Limited did not even deem it fit to join Ririwai Mines Limited as a party in the matter. He relied on Akindele vs. Kayode Abiodun

(supra) @ 392. It is the final submission of counsel that the failure of the Appellant to join the proper and necessary parties robs the Court of jurisdiction. For this position, counsel relied on Gazi Construction Co. Ltd vs. Bill Construction Ltd (2011) LPELR-19740; Akindele vs. Kayode Abiodun (supra); Rev Rufus IwuaJoku Onuekwusi & Ors vs. The Registered Trustee of the Christ Methodist Zion Church (2011) 6 NWLR (Pt. 1243) 341 @ 361; Gombe vs. P.W. (Nig) Ltd (1995) 6 NWLR (Pt. 402); Buraimoh Oloriode & Ors vs. Simeon Oyebi & Ors (1984) 5 SC 1. Learned counsel finally urged Court to resolve all the issues in favour of the Respondents and to affirm the decision of the lower Court and consequently to dismiss this appeal.

The Appellant filed a reply brief on 3/9/18 which was deemed as properly filed and served on 18/9/18. It is the contention of the Appellant that the averments in its Statement of Claim do not have the meaning ascribed to them by the Respondents in that the Appellant’s claim borders on the Respondents’ attempt to deal with ML 19 as the exclusive property of the 2nd Respondent, contrary to the prior understanding

of the parties. Counsel submitted that the Respondents’ submission to the effect that the Appellant’s claims are statute barred for failure to challenge the 2012 revocation of ML 19, which is the same reason the trial Court gave for its decision, does not accord with the principle of ubi jus ibiremedium. Counsel cited Bello vs. A.G Oyo State (1986) 5 NWLR (Pt. 45) 828 @ 890. It is the further submission of counsel that the Respondents were under a duty to respect the Appellant’s rights as a shareholder of RML in disposing of RML’s assets and that such duty was breached when the Respondents attempted to dispose of ML 19. It was contended by learned counsel that the contention of the Respondents that the Appellant’s claims are not rooted in contract because the claims do not meet the stringent requirements set out by the Respondents in their brief is misconceived in law. Counsel placed reliance on Ladejobi vs. Odutola Holdings Ltd (2002) 3 NWLR (Pt. 753) 121 @ 153; Yalaju-Amaye vs. A.R.E.C Ltd (1990) 4 NWLR (Pt. 145) 422 @ 445; Stirling vs. Maitland (1864) 5 B & S 852.

It was posited by learned counsel for the Appellant

that the presence or otherwise of live issues in the Appellant’s case can only be determined on the basis of the averments in the Statement of Claim and the reliefs sought by the Appellant and not on the basis of an extraneous allegation of revocation imported by the Respondents. The Appellant contended that the argument of the Respondents on the revocation of ML 19 is misplaced because the claim of the Appellant placed before the lower Court for consideration is not a challenge of the revocation. Going further, counsel argued that the Respondents arguments on the revocation of ML 19 which the lower Court relied on heavily in coming to its decision, is speculative as same amounts to making a pronouncement on a matter not before the Court. He cited UBN vs. Nwaokolo (1995) 6 NWLR (Pt. 400) 127 @ 151.

With respect to the Respondents’ allegation that the Appellant participated in the biding process for ML 19 and thereby acted in bad faith, it is the submission of Appellant’s counsel that it is unfounded in law as the Appellant challenged the Respondents’ assertion that it is an affiliate of Promethean Resources Limited. Appellant

calling in aid the cases of Union Beverages Ltd vs. Pepsicola Int. Ltd (1994) 3 NWLR (Pt. 330) 1 @ 16; Bulet Int’l (Nig) Ltd vs. Olaniyi (2017) 17 All NWLR (Pt. 1594) 260 @ 293 & 297 argued that a parent company is a separate entity from its subsidiary and the action of one cannot be imputed to the other. Counsel cited the case of Xtoudos Services Nig Ltd vs. Taisei (W.A.) Ltd (2006) 15 NWLR (Pt. 1003) 533 @ 558 in submitting that it is the duty of the trial Court to pronounce on all issues raised and that the only exception is where the lower Court’s decision on other issues raised would prejudice the determination of the substantive suit yet to be tried by the Court. He cited Egharevba vs. FRN (2016) 10 NWLR (Pt. 1521) 431 @ 453; Wilson vs. Oshin (2000) 9 NWLR (Pt. 673) 442 @ 462-463. Counsel argued that the lower Court did not pronounce on the issues of breach of contract and the offending paragraphs of the Respondents’ affidavit as it is impossible to assume that the pronouncement of the lower Court that it agreed with the Respondents meant an agreement with the Respondents on all issues raised. He relied on Barigha vs. PDP (2013) 5

NWLR (Pt. 1349) 108 @ 141; Ayanboye vs. Balogun (1990) 5 NWLR (Pt. 151) 392 @ 407 to the effect that judgment must be cogent, clear and unambiguous. Counsel called on this Court to discountenance the Respondents’ argument on the presence of necessary parties as the Respondents are not raising the issue of jurisdiction for the first time. Counsel contended that having raised it at the lower Court and same was not determined, the proper course of action is to file a cross-appeal or Respondent’s notice. He relied on Ladejobi vs. Odutola (supra) @ 157 in contending that RML is not the proper party in this suit and that the proper parties can only be determined on the basis of the claims of the Appellant and the reliefs sought. Counsel stated that notwithstanding the rule in Foss vs. Harbottle, a minority shareholder can maintain an action when it is clear that to deny him relief would be tantamount to allowing the rule to be converted to an engine of fraud or oppression. He cited Yalaju-Amaye vs. A.R.E.C Ltd (supra) @ 465. It is the final submission of counsel that failure to join the Minister of Mines and Steel or the Mining Cadastre Office to the

Appellantâs suit is of no consequence as the suit against the 1st Respondent suffices for the reliefs sought by the Appellant. He placed reliance on Shitta-Bey vs. A.G Federation (1998) 10 NWLR (Pt. 570) 392 @ 418-418; Essang vs. Aureol Plastic Limited (2002) 17 NWLR (Pt. 795) 155 @ 181; A.G Rivers State vs. A.G Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31 @ 202-203 & 216.

It can be clearly deduced from the facts of the case at the lower Court and as disclosed in the 3 volumes record of appeal, what is in the front burner of this appeal is; whether the lower Court was right in upholding the preliminary objection of the Respondents against the suit filed by the Appellant on the ground that it lacked jurisdiction since the action is statute barred. The lower Court has held that the cause of action arose in 2005 and since the action filed in 2015 was not filed within 3 months as required by the Public Officers Protection Act, the action is statute barred. The lower Court dismissed the suit on that ground alone. The lower Court did not concern itself with the other grounds of the preliminary objection such as locus standi etc. The real issue therefore

in this appeal is to determine whether the action is actually statute barred and to do this, one major question that will be answered is; when did the cause of action arise between the parties and whether Section 2(a) of the Act is applicable to this case? The answer to these questions will actually determine this appeal one way or the other. If I agree with the Respondents that the Act is applicable to the facts of this case and that the cause of action arose in 2005 or 2012, I will then affirm the decision of the lower Court that the action is statute barred. The consequence of that is to dismiss this appeal. If on the other hand, I hold the contrary view in agreement with the Appellant, this appeal will succeed and the decision of the lower Court set aside. In proper legal parlance, the appeal will be allowed. There are other minor issues arising from the ground of appeal but the determining factor in this appeal is what I had stated above.

At this stage, I think it is appropriate to formulate the issues for determination in this appeal. In doing that, I can decide to adopt the issues raised by any of the parties or I can decide to combine the issues

formulated by the parties in their brief or I can formulate my own issues. Whichever option I take, one thing that is clear is that as required by law, the issues for determination must flow or be based on the grounds of appeal and I must obey the rule against proliferation of issues. Any issue formulated for determination outside the grounds of appeal will not be taken seriously as it will amount to nothing and invalid as the issues formulated must relate or arise from the grounds of appeal. See: Okoye & Ors vs. Nigerian Construction & Furniture Company Limited & Ors (1991) 6 NWLR (Pt.199) 501; Benjamin Ezenwa vs. Okpara Oko & Ors (2008) 1-2 S.C. 1; Jackie Phillips vs. Eba Odan Commercial & Industrial Company Limited (2013)1 NWLR (Pt.1336) 618.

In this respect, issue 5 formulated by the Respondent is not an issue to be considered as it is not based on the grounds of appeal. There is no ground of appeal that relates to the issue formulated on whether the Appellant was a necessary party in the Court below. I will therefore not consider that issue in this appeal. The issues for determination raised by the parties are similar in some

respect. In the circumstance, in formulating the issues for determination in this appeal I will take the issues formulated by each party in their briefs and adopt them as mine in this judgment. The issues for determination in this appeal are therefore as follows:
1. Whether the Court below was right when the Court held that the action of the Plaintiff/Appellant was statute barred by virtue of Section 2(a) of the Public Officers Protection Act.
2. Whether the Appellant’s cause of action accrued in 2005 as held by the learned trial Judge and whether the learned trial Judge was right to decline jurisdiction on the ground contained in the Respondent’s disposition, that the Appellant’s interest in ML 19 was extinguished by the Respondent’s revocation of ML 19 in 2012?
3. Whether the inability of the lower Court to pronounce on paragraphs 6, 7, 9, 15, 16, 17, 18, 19, 33, 35 and 52 of the Respondent’s counter affidavit and all issues in the preliminary objection amounts to denial of fair hearing to the Appellant?
4. Whether the lower Court was right in holding that there was no sufficient evidence of bad faith

against the Respondent?

The above are the issues for determination but the real issues which are of great relevance to this appeal are issues 1 and 2. Issues 3 and 4 are not as important and relevant in the determination of this appeal as issues 1 and 2 but since they were raised as grounds of appeal, I will consider them so as to comply with the legal requirement that a Court should consider all issues raised before it no matter how irrelevant they could be. See Okafor vs. Abumofuani (2016) 12 NWLR (Pt.1525) 117; Tatu vs. Estate of Late Alhaji I. Adamu (2015) 13 NWLR (Pt. 1476) 364.

For the proper flow of this judgment, I will not follow the issues raised above in numerical order but rather, the order I will follow is to deal with the less important issues then move to the main issues in this appeal. In the circumstance I will address issue 4 first. For completeness, I will reproduce the issue 4 again. This issue reads thus:
“Whether the lower Court was right in holding that there was no sufficient evidence of bad faith against the Respondent?”

With respect to the Appellant I really do not see the relevance of this issue

in this appeal. A proper appreciation of the decision of the lower Court and the issue which the lower Court resolved in the ruling will show how irrelevant and insignificant issue 4 is before this Court. Just as I find the issue of whether the Appellant is the appropriate party to sue not very relevant to this appeal as it was not an issue decided upon by the lower Court so also is this issue not relevant to this appeal. The point I am making here is that whether there was sufficient evidence of bad faith against the Appellant, it really would not change anything if the action is held to be statute barred. The lower Court has held that the action is statute barred and the law on a statute barred action is settled. The law is that an action that is statute barred is dead and has no life whatsoever. Once an action is statute barred, there is no amount of legal oxygen that can bring back to life a statute barred action. See: CIL Risk & Asset Mgt Ltd vs. Ekiti State Govt. (2020) 12 NWLR (Pt. 1738) 203; Abubakar vs. Michelin Motor services (No 1) (2020) 12 NWLR (Pt. 1739) 555.

To buttress the position above that this issue will not change anything, it is

necessary to look at the submission of Appellant’s counsel. The Appellant’s counsel in his submission in the reply brief acknowledged the fact that this issue is an issue for the main trial that is, if the case had gone on trial. The decision of the lower Court that the action is statute barred prevented any trial and therefore it short-circuited the opportunity of the Court to go into full trial when it would have had the opportunity of deciding whether the Respondents or the Appellant acted in bad faith. Learned Counsel to the Appellant had submitted that in view of the different position of the parties, the Court ought to have allowed the matter to proceed to trial for parties to prove their respective positions. This is tacit recognition of the fact that the issue of bad faith and who is guilty of it is an issue for the main trial and since the main trial has been foreclosed on the premise of the action being held to be statute barred, the lower Court was not supposed to even consider the issue of who is guilty of bad faith as the issue of bad faith is an issue for the main trial. The lower Court having held that the action was statute barred

was not under any obligation in law to go further to consider issues which could be properly determined by oral evidence at the trial. The ruling of the lower Court is purely on jurisdiction and the action was dismissed on the premise that the action is statute barred. That was the thrust or gravamen of the decision of the lower Court as contained on pages 1298-1304 of the ruling. The real challenge of the Appellant against the ruling of the lower Court in the appeal is whether Section 2 (a) of the Public Officers Protection Act is applicable to the case at the lower Court bearing in mind the facts of the case. That is clear from the ruling when the lower Court raised a sole issue for determination to be “whether this Court is vested with jurisdiction to entertain the instant suit in view of the provisions of Section 2(1) of the Public Officers Protection Act Cap P41 Laws of the Federation 2004.” The decision was centered on that issue and there is no room for the issue of bad faith and indeed all that other issues which do not relate to the issue of jurisdiction. Though I am tempted to look at the issue of bad faith but that will not be of any use

in this appeal as the decision of the lower Court is not based on this issue. The law is that grounds of appeal must relate and be directed to the judgment or ruling. Grounds of appeal are not brought from the case of the parties at the lower Court or from the argument of counsel but rather they are based on the decision of the lower Court. The ground of appeal is directed to the decision of the Court as the ground of appeal is couched to challenge the decision of the Court. The ground of appeal is not challenging the case of the other party as that is what is done at the lower Court but on appeal what is challenged is not the case of the other party but the judgment of the lower Court. An Appellant in an appeal is challenging the ratio decidendi of the decision of the Court and definitely not the case of the Appellant at the lower Court. It is trite that the ground of appeal must relate to the ratio decidendi of the judgment or ruling. In K.R.K. Holdings (Nig) Ltd vs. FBN & Anor (2016) 12 S.C. (Pt. II) 85, the apex Court held:
“…every Faculty of Law sophomore is, (or ought to be), aware of, grounds of appeal must relate to the ratio decidendi

of the judgment or decision appealed against, Okponipere v. State (2013) 10 NWLR (pt. 1362) 209. In other words, an appeal is usually against the ratio decidendi and generally, not against an obiter dictum, U. T. C. Nigeria Limited v. Pamotei (1989) 2 NWLR (pt. 103) 244; Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387; Ede v. Omeke (1992) 5 NWLR (pt. 242) 428; Dakar v. Dapal (1998) 10 NWLR (Pt 577) 573.”
The Supreme Court per Galumje, J.S.C. in Agwu & Anor vs. Julius Berger Nig Plc (2019) 11 NWLR (Pt. 1682) held:
“The first arm of the argument of the Learned Counsel for the appellant is based on the general rule that a ground of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. This is a well settled proposition of Law in respect of which there can hardly be a departure.”
Similarly, in Okechukwu vs. Obiano (2020) 8 NWLR (Pt. 1726) 276, the apex Court held:
“A ground of appeal does not only give notice to the respondent, it must be against the decision being appealed against and should constitute a challenge to the ratio of the decision. Where a ground of

appeal does not constitute a complaint against the decision being appealed, it is incompetent and liable to be struck out.”
Finally, this Court per Ogunwumiju, J.C.A. in Okali & Anor vs. Okali & Anor (2017) LPELR- 42838 (CA) at page 7 held:
“It is elementary law that grounds of appeal must arise from the decision against which an appeal lies. The ground of appeal must perforce attack the ratio decidendi of the decision of the Court appealed against. In essence, only an issue pronounced upon by the trial Court can be subject of a ground of appeal. See: Saraki v. Kotoye (1992) 9 NWLR Pt. 264 Pg. 156, C.C.B. Plc. v. Ekperi (2007) 3 NWLR Pt. 1022 Pg. 493, Okafor v. Abumofuani (2016) LPELR-40299(SC).”
Allowing a ground of appeal that does not challenge the ruling of a Court but rather present before the Court the facts in the lower Court in its totality without regards to the judgment or ruling, that will turn the appellate Court to the Court of first instance. All I am saying here is that the matter that issue 4 intends to address is not an issue that is covered and dealt with in the ruling of the lower Court and so no proper

ground of appeal can arise from it or issue formulated on it.

If however I am wrong, I cannot agree with the Appellant that the Respondents are guilty of bad faith. In clear terms based on the facts of the case it is the Appellant that is guilty of bad faith. I will just stop here. I cannot in the circumstance resolve this issue in favour of the Appellant.

The next issue to be discussed is issue 3. This issue reads thus:
Whether the inability of the lower Court to pronounce on paragraphs 6,7,9,15,16,17,18,19,33,35 and 52 of the Respondent’s counter affidavit and all issues in the preliminary objection amounts to denial of fair hearing to the Appellant?

(2019) 4 NWLR (Pt. 1663) 381.
The concept of fair hearing is seen in the principle that parties should be given opportunity to present their case and a person should not be a judge in its own cause. Let me however say, that a party cannot complain of denial of fair hearing because the Court’s decision did not favour him. It is when, the lower Court did not give a party the opportunity to present his case or refused to consider his case that it can be said that he was denied fair hearing. See: Bio vs. State (2020) 7 NWLR (Pt. 1723) 218; CBN vs. Akingbola (2019) 12 NWLR (Pt. 1685) 84.
The Appellant submitted that he was denied fair hearing because the lower Court did not consider in the ruling his submission that some paragraphs of the affidavit of the Respondents in support of the preliminary objection offends the provision of the Evidence Act 2011 specifically Section 115 (1)(2)(3). The section of the Evidence Act referred to above states that an affidavit should contain statement of facts within the personal knowledge of the deponent or from information which he believes to be true and further that affidavit should not contain extraneous

matter by way of objection, prayer or legal argument. If the facts are not within the personal knowledge of the deponent, the deponent should state the facts and circumstances forming the ground of the belief. Any paragraph of an affidavit that violates Section 115 of the Evidence Act will be expunged. That is the position of the law. It is trite and established beyond any dispute. See: AG Anambra State vs. AG Federation (2007) LPELR-24343 (SC); AG Adamawa State & Ors vs. AG Federation & Ors (2005) LPELR-602 (SC).
It is not in doubt as disclosed in the ruling that the Appellant challenged some paragraphs of the counter affidavit of the Respondents and it is also not in dispute that the lower Court made no specific finding as to whether those paragraphs offend Section 115 (1) & (3) of the Evidence Act. This appears to be an omission in the ruling of the lower Court as I have gone through the 24 pages ruling of the lower Court found on pages1281-1304 of vol. III of the record of appeal and I did not see any finding on that point. Will such an omission amount to anything or miscarriage of justice in the light of the circumstance of the case

under appeal? I do not think so as those paragraphs have no relationship with the main issue that was determined by the lower Court which is whether the action is statute barred. If those paragraphs have nothing to do with the main issue before the lower Court, the fact that the lower Court did not pronounce on those paragraphs is of no moment. I must never lose sight of the fact that the lower Court’s decision is premised on Section 2(a) of the Public Officers Protection Act and the consequent finding that the provision of the Public Officers Protection Act is applicable to the case before him and as a result the case is statute barred makes those challenged paragraphs unnecessary for consideration in the ruling. Those paragraphs have nothing to do with the decision of the Court on the issue of jurisdiction. The lower Court in my opinion never deemed it necessary to consider those paragraphs having held that the action is statute barred. Is his lordship right? Before I consider that, let me even look at the paragraphs to see whether they are offensive to the Evidence Act. I do that in line with the power conferred on this Court as provided for in

Section 15 of the Court of Appeal Act. I have gone through the affidavit of the Respondents found on pages 770-780 of vol. II of the record and particularly the paragraphs challenged which are paragraphs 6, 7, 9, 15, 16, 17, 18, 19, 25, 26, 33, 35, 48, 51 & 52. I am of the firm view that most of the paragraphs challenged did not offend the provisions of the Evidence Act as they are clear statement of facts which are not different from the way the Appellant stated its own facts. The only paragraphs I find offensive to the Evidence Act are paragraphs 25,26 and 48 of the counter affidavit. I make bold to say expunging those paragraphs will not make any difference to the decision of the Court that is if I hold that the action is statute barred. On the whole on this issue, I find that, the fact that the lower Court did not make pronouncement on those paragraphs is of no moment as to the success of this appeal. This issue therefore is resolved against the Appellant.

It is now time to address the main issues which are issues 1 & 2. I will address issue 1 and then followed by issue 2. I hereunder reproduce issue 1 for completeness:

Whether the Court below was right when the Court held that the action of the Plaintiff/Appellant was statute barred by virtue of Section 2(a) of the Public Officers Protection Act?

The lower Court held that the action instituted by the Appellant commenced on 22/5/15 is statute barred because the cause of action accrued to the Appellant in 2005 and since Section 2(a) of the Public Officers Protection Act is applicable to this case, the action should have been commenced within 3 months of the cause of action. In addressing this issue, the relevant provision to look at is Section 2(a) of the Public Officers Protection Act. I will reproduce the section hereunder:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect—
(a) Limitation of time—the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next

after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:”
By the above provision, it is clear that the provision only relates to public officers who are protected in the course of carrying out their legitimate public duty. To enjoy the protection, the person must be a public officer who is acting within his legitimate duties. It stands to reason that the law does not protect a person who is not a public officer or even a public officer who arbitrarily uses his power or acted clearly outside his jurisdiction. Let me take a little excursion into the case law on the subject. In B.P.E. vs. Reinsurance Acquisition Group Ltd & Ors (2008) LPELR-8560 (CA) at pages 38 – 41, it was held:
“The persons whom the provisions of the Public Officer Protection Act would not cover are persons who are independent contractors for the provision of services for a public of (sic) services body or authority by virtue of contract. The words “Public Officer” or “any person for the purpose of the Public Officers Protection Act and as stipulated in Section 2 of the Public Officers Protection Law

not only refer to natural persons or persons sued in their personal names. They extend to public bodies, initial persons, institutions or persons sued by their official names or titles. See F.G.N. v. Zebra Energy Ltd (2002) 18 NWLR (pt. 798) 162 at 195; Ibrahim v. J.S.C. Kaduna State (1998) 14 NWLR (pt. 584) 1; Permanent Secretary Ministry of Works etc. v. Balogun (1975) 5 SC 57.
The intention of the Legislature in the Public Officers (Protection) Law is to provide protection for public officer, corporate or incorporated bodies in the discharge of their public assignment. Offoboche vs. Ogoja Local Government (2001) 16 NWLR (pt. 739) 458… The defence of the Public Officers Protection Law can avail public officers who act in execution of their duty without malice. Thus motive on the part of the public officer is relevant but the mala fide of the public officer must be made an issue. Okeke vs. Baba (2000) 3 NWLR (Pt. 798) 644 at 652; Eboigbe vs. NNPC (1994)5 NWLR (Pt. 347) 649; Sanda vs. Kukawa Local Government (1991)2 NWLR (Pt. 174) 379; Olaosebikan vs. Williams (1996) 5 NWLR (Pt. 449) 437.

Egbe vs. Adefarasin (1985) 1 NWLR (pt.3) 549, Egbe vs. Alhaji (1990) 1 NWLR (pt. 128) 546; Ekeogu vs. Aliri (1991) 3 NWLR(Pt. 179) 258.”
Similarly in Sulgrave Holdings Inc & Ors vs. FGN &Ors(2012) 17 NWLR (Pt. 1327) 309, the Supreme Court held:
“The Public Officers Protection Act is a Statute of limitation and the import of Section 2(a) thereof, is that where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance or execution of any law or of any default in the execution of any law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within THREE Months of the act, neglect, or default complained or in the case of continuing damage or injury within THREE MONTHS next after the ceasing thereof. What this means is that Public Officers Protection Act removes the right of action, the right of enforcement act and the right to judicial relief in a plaintiff. This leaves Respondents with a bare and empty or hollow cause of action which he cannot enforce because the alleged cause of action is statute-barred, and cannot be maintained. See

FALAE V. ATTORNEY GENERAL OF OYO STATE (1982) 4 SC P.1. OBIEFUNA V. OKOYE (1961) 1 SCNLR 144; EGBE V. ADEFARASIN (NO.1) (1985) 1 NWLR (Pt.3) 549.”
The point must be made that the Act as shown in the cases above will only protect Public Officers who are operating within the limit of their public function. The Supreme Court per Mary Odili, J.S.C. in A.G. Adamawa & Ors vs. A.G. Federation (2014) LPELR-2322 (SC) at 32-33 held thus:
“Indeed, the Court per Onnoghen, J.S.C., had stated in clear terms in Hassan vs. Aliyu (supra) 591 thus:-
“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers’ Protection Act.”
I shall quote Section 2(a) of Public Officers’ Protection Act for clarity and thus:-
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of

any such Act, Law, duty or authority, the following provisions shall have effect-
Limitation of time:
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”
The Supreme Court clearly placed the limit of the application of the section to public officers in Hassan vs. Aliyu (2010) 17 NWLR (Pt. 1223) 547 in these words:
“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act. It is the duty of the plaintiff/appellant to adduce evidence or facts to establish the bad faith, lack of semblance of legal justification, etc. The facts to be produced must exist to enable the Court find the absence of semblance of legal justification, etc. otherwise once it is established that the action was instituted outside the statutory period of three months, the

action is time barred and the Court will have no jurisdiction to entertain same.”
The purpose of the Act was brought out clearly by this Court in Tajudeen vs. F.I.R.S. (2020) 12 NWLR (Pt. 1739) 459 in these words:

their public authority and did not act outside their statutory or constitutional duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment, or outside their statutory or constitutional duty, they automatically lose protection of the law.”

The legal effect of declaring an action statute barred is without dispute. This means that the

right which a person had to institute an action is taken away from the person on the ground that the action is statute barred. I must say that the position of the law is that should a Court hold that an action is statute barred, that ends the journey of the case. The case dies without any opportunity of resurrection. A person in coma has a chance of coming back to life but once clinically certified dead cannot come back to life except if a miracle takes place.
In law, a statute barred action cannot miraculously resurrect. Once an action is statute barred, the only order a Court can make is to order the burial of the case as there is no cause of action capable of been litigated. See Ataloye & Anor vs. The Executive Governor Ondo State & Ors (2014) 8 NWLR (Pt. 1410) 620. In this respect, the cause of action is extinguished and cannot be maintained in Court. The right of the aggrieved party to an action, enforcement and judicial relief is removed as he is left bare and empty with a cause of action which is unenforceable and not actionable. See Sosan vs. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241; Mr. Popoola Elabanjo & Anor vs. Chief (Mrs.) Ganiat Dawodu

NSCQR vol. 27 2006 page 318; Nasir vs. Civil Service Commission Kano State & Ors (2010) 6 NWLR (Pt. 1190) 253. The Supreme Court in Hassan vs. Aliyu & Ors(2010) 7-12 SC 21; (2010) LPELR-1357 (SC) 89-90 per Adekeye J.S.C., drove home the above point in these words:
“When an action is statute-barred, the plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation had elapsed. An action commenced after the expiration of the statutory period within which an action must be brought is not maintainable. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being properly instituted before the Court. In effect, the right of the appellant to commence an action against the withdrawal and substitution of the 1st respondent is extinguished by operation of law – that is, Section 2(a) of the Public Officer Protection Law Cap 379 Laws of the Federation 1990. See

EGBE V. ADEFARASIN (1987) 1 NWLR PT. 47 PG. 1; OBIEFUNA V. OKOYE (1964) 1 ALL NLR PG. 96; ADEOSUN V. JIBESIN (2001) 11 NWLR PT. 724 PG. 290; IBRAHIM V. JUDICIAL SERVICE COMMITTEE KADUNA STATE (1998) 14 NWLR PT. 584 PG. 1; EBOIGBE V. NNPC (1994) 5 NWLR PT. 347 PG. 649; ODUBEKO V. FOWLER (1993) 7 NWLR PT. 308 PG. 637.”
Similarly, the apex Court in ACN & Anor vs. INEC & Ors (2013) 13 NWLR (Pt. 1370) 161 per Ngwuta J.S.C. held:
“In the context of the appeal before us and in the light of the meaning of limitation law, or statute, a cause of action includes a right to appeal. 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 VS. JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1998) 14 NWLR (PT. 584) 1 SC where this Court, per Iguh, J.S.C., 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 P.N. Udoh Trading Co. Ltd vs. Abere (2001) FWLR (Pt. 57) 900 SC.

The above position of the law is not in dispute between the parties as that is trite position of the law. Where the parties differ is whether the position of the law is applicable in the light of the facts of the case on appeal. The Appellant says that the Act is not applicable in the case. The Respondents on the other hand says the provision of the Act is applicable. Indeed, the Appellant’s counsel submitted that the cause of action has nothing to do with the official act of the Respondents but rather it is based on a contractual relationship between the parties and therefore the Act does not apply. At this point, it is necessary to know what a cause of action is and what really is the cause of action in this case? In plethora of cases, cause of action has been defined as the reason the parties are in Court which will determine their rights and liabilities. The

cause of action in the case is the reason why the parties came to Court. A party alleges that he has been wronged and he comes to Court to ventilate his anger. The concern of the Court is to decide whether the party who commenced the action was actually wronged. This point which the Court is called upon to decide is what constitutes the cause of action. The cause of action is the issue which the Court will decide on between the parties to establish the rights between the parties. One or two cases where the Courts in Nigeria have defined what a cause of action is will not be out of place. In Nworika vs. Ononeze-Madu & Ors (2019) LPELR-46521 (SC) Bage, J.S.C. held:
“In considering and deciding parties submission on issue two, I wish to state the law that cause of action is the factual basis or scenario that formed the basis of invoking the jurisdiction of Court in a suit. A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an unforceable (sic) claim. In determining the cause of action or right to sue, the Court will rely on the Statement of claim filed by the Claimants to determine their

standing. See KUSADA VS SOKOTO NATIVE AUTHORITY (1968) 1 ALL NLR 377 where the definition in READ VS BROWN (1888) 22 QBD. 128 (C.A.). The Court must therefore confine itself only to the averments in the statement of claim in the assessment of whether or not the plaintiff has a locus to sue. See: SHELL B.P. PETROLEUM DEVELOPMENT CO., OF NIGERIA LTD. & ANOR. VS ONASANYA (1976) 6 S.C. 89, at 94.
Cause of action necessarily touches on issue of jurisdiction. It is therefore fundamental to adjudicatory competence for a Court to first examine the basis of dispute, that is what led to instituting the suit, which is otherwise called ‘Cause of Action”. Any defect in the competence of a Court to entertain a matter is fatal, for the proceedings are a nullity, however well conducted. Consequently, a determination by any Court or Tribunal without jurisdiction confers no right or obligation. See: NWOSU VS I.S.E.S.A (1990) 2 NWLR (Pt.135) 688.”
In A.G. Federation vs. A.G. Abia State & Ors (2001) LPELR-24862 (SC), the apex Court per Ogundare, J.S.C. held while defining cause of action thus:
“It is trite that what constitutes a cause of

action is the entire set of circumstances giving rise to an enforceable claim. (See Savage v. Uwechia (1972) 3 SC 214, 221). Lord Esher, in Read v. Brown (1888) 22 QBD 128 defined cause of action as meaning every fact that it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It also includes all those things necessary to give a right of action. (See: Emiator v. Nigerian Army & others (1999) 12 NWLR 362). Where the Statement of Claim discloses no cause of action, it will be struck out and the action dismissed.”
See also Chief Ohwovwiogor Ikine & Ors. vs. Chief Edjerode & Ors NSCQLR Vol. 8 (2001) 341.
The cause of action can only be determined by the claim put forward by the Claimant, in this instance the Appellant. It is not determined by the response of the Defendant in a case. Similarly, to determine when the cause of action accrues to the Appellant in a matter, it is the claim of the Claimant that will determine that and not the statement of defence of the Defendant. See: Owuru & Anor vs. Adigwu & Anor (2017) 6-7 S.C. (Pt.III) 67; A.G. Federation vs. A.G. Abia & Ors

(2001) LPELR-24862 (S.C.)

The Appellant wants this Court to believe and accept the position that the cause of action is contractual or in the nature of a contract. Is this true? The answer is clear and simple. The cause of action has nothing to do with contract but as shown in the writ of summons found on pages 2-3 and the statement of claim found on pages 5-9 of vol.1 of the records, the cause of action as shown in the above pages has to do with the seizure of mining lease, that is ML19 from Ririwai Mining by the 1st Respondent and transfer of same to the 2nd Respondent. The Appellant is challenging the seizure, the transfer and the vesting of the mining lease 19 from the Appellant to the 2nd Respondent. As the Respondents’ counsel puts it, the case has nothing to do with contract but rather it is based on a mining related activity such as the granting, revocation and concessioning of the mineral title. I agree with Respondents’ counsel. To appreciate this position, I reproduce the claim of the Appellant at the lower Court as follows:
“WHEREOF the Plaintiff claims against the Defendants jointly and severally as

follows:
i. A DECLARATION that the seizure of 19 ML from Ririwai Mining Limited (“RML”) by the Defendants and the vesting of same in the 2nd Defendant is void, illegal and a violation of the provisions (sic) Section 44 of the Constitution of the Federal Republic of Nigeria 1999
ii. A DECLARATION that any transfer or attempted transfer of 19 ML by the Defendants whether directly or through their agents, privies, servants or anybody whatsoever either by a bid process or in any manner howsoever is illegal, unlawful and a violation of Section 44 of the Constitution of the Federal Republic of Nigeria 1999
In the ALTERNATIVE to reliefs I and II above
iii. A DECLARATION that the transfer or attempted transfer of the bundle of rights in 19 ML by the Defendants whether by a bid process of in any manner whatsoever in disregard of the interest of the Plaintiff is a breach of the Memorandum and Articles of Association of Ririwai Mining Limited within the contemplation of Section 41 of the Companies and Allied Matters Act, Cap C20 Laws of the Federation of Nigeria 2004
iv. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants

either by themselves or through their agents, privies, assigns or anybody whatsoever from selling, transferring and or attempting to sell and or transfer either by a bid process or any process whatsoever the bundle of rights in 19 ML without recognizing the interest of the Plaintiffs.
v. Damages in the sum of N350,000,000
vi. Costs of this action.”

The real contention of the Appellant is fully disclosed in paragraph 18 of the statement of claim of the Appellant. It reads thus:
“Plaintiff avers that the conduct of the Defendants as described herein was deliberately designed to unlawfully deprive the Plaintiff of its right in 19 ML.”

The above is the basis of the action filed by the Appellant at the lower Court which culminated to the claim reproduced above challenging the conduct of the Respondents in the seizure, transfer and vesting of ML19 in the 2nd Respondent. The Appellant in the claim sought for an order to declare illegal, null and void the conduct of seizing, transferring and vesting of ML19 in the 2nd Respondent. I do not agree with the submission of Appellant’s counsel that the cause of action is

contractual. It is not contractual in nature. I make bold to say that the cause of action as disclosed in the statement of claim bring the contention of the Appellant within the scope of Section 2(a) of the Public Officers Protection Act.

The other point that will be considered here is whether the Respondent fall within the definition of Public officers as anticipated by the Act. Those protected under the Act are persons who execute or carry out acts pursuant to law or a statute or any public duty. That the Appellant’s action falls into the categories of actions within the Act is not in dispute. The other issue is whether the Respondents are public officers within the context of the Act. The Act refers to the public officer as a person. The definition of a person in law means naturally or artificial person. This means corporate bodies can be persons under the Act. The Supreme Court in Ajayi vs. Adebiyi & Ors (2012) 11 NWLR (Pt.1310) 137 drove home this point in these words thus:
“By virtue of Section 2 of the Public Officers (Protection) Act Cap 114 Laws of Lagos State, any action commenced against any person for any act done in pursuance or

execution or intended execution of any Act, Law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act or Law, duty or authority 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. The word ‘person’ in that Section does not only refer to natural persons but extend to public bodies, artificial persons sued by their official names or titles like the 3rd and 4th Respondents in this case. The officials of the Lagos State Government were spotted on the land in 1986. An action was filed in respect of the acquisition in 1991 against the Military Governor of Lagos State and the Attorney-General of Lagos State.”
The 1st Respondent is obviously a public officer, the 2nd Respondent is an agency of the Federal Government and therefore the Respondents are persons within the contemplation of the Act. This means that using all the parameters for the application of Section 2(a) of the Act, the action falls under the provision of the Act. The first issue is

resolved in favour of the Respondents.

The final issue to be determined to finally come to the decision whether the lower Court was right in holding that the action is statute barred, I will now address issue 2 which is:
Whether the Appellant’s cause of action accrued in 2005 as held by the learned trial Judge and whether the learned trial Judge was right to decline jurisdiction on the ground contained in the Respondent’s disposition, that the Appellant’s interest in ML 19 was extinguished by the Respondent’s revocation of ML 19 in 2012?

This is a crucial question to answer which is; when did the cause of action accrue to the Appellant. This is because whether the action is caught by Section 2(a) of the Act is a function of calculating when the cause of action arose and when the action was filed. This means the action will be statute barred, if the period between when the cause of action arose and when the action was filed exceeds a period of 3 months. It is therefore very crucial to this appeal to determine when the cause of action arose. If it is in 2005 as the lower Court decided then the action is clearly statute

barred. If it is in 2012, it is also statute barred but if the cause of action arose in April 2015, the action will not be statute barred since the action was filed in May 2015. The accuracy of when the cause of action arose and when the action was filed is an important aspect to determine whether the action is statute barred. The cause of action is said to come into effect when the damage or injury complained about comes into existence. Let me at this point correct a misconception that the counsel to the Appellant seems to hold. Appellant counsel submitted that they became unhappy about the situation in 2015 and therefore the cause of action started counting from then. This is not correct. When the Appellant became unhappy about the situation is irrelevant. What is important is when the cause of action accrued to the Appellant. Time will start counting from when the cause of action existed. In therefore determining whether the action is statute barred, a Court will look at when the cause of action arose, compare it with when the writ was filed, if it is beyond the period stated by the law, then the action is statute barred. This is the decision of the Supreme

Court in Forest Research Institute of Nig. vs. Gold (2007) 11 NWLR (Pt.1044) 1, where the Court per Mukhtar, J.S.C. (as he then was) held:
“I will state here that the dismissal of the Respondent having taken place in 1988, the Respondent’s cause of action arose three months thereafter, and not three years after. In this respect, I find solace in the dicta of Oputa, J.S.C. in the case of FRED EGBE VS. HONOURABLE JUSTICE ADEFARASIN (SUPRA) which is encapsulated thus:
“A cause of action is thus said to be statute-barred if in respect of its proceedings cannot be brought because the period laid down by the Limitation Law or Act had elapsed. How does one determine the period of limitation. The answer is simply 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 and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the Limitation Law then the action is statute barred.”
The claim of the Appellant as earlier

mentioned is challenging the seizure, transfer and vesting of ML19 to the 2nd Respondent. The Appellant wanted the lower Court to declare that act illegal, null and void. The cause of action will be said to accrue to the Appellant when the Appellant knew of the seizure, transfer or vesting of ML19 to the 2nd Respondent. It is not when he came to terms with it. In determining when the cause of action arose, the relevant document is the statement of claim. To that respect I agree with the submission of counsel to the Appellant. See Barbus & Co. (Nig) Ltd & Anor vs. Okafor-Udeji (2018) LPELR-44501 (SC); Owuru & Anor vs. Adigwu & Anor (2017) LPELR-42763 (SC).

Looking at the statement of claim of the Appellant found on pages 5-9 of vol. 1 of the record particularly paragraphs 9,10,11,13 and 14 when the cause of action arose can be deduced. The relevant question is, when did the Appellant come to know about the seizure, transfer and vesting of right of ML19 in the 2nd Respondent? This is the crucial question to be answered. I will at this point reproduce paragraphs 9,10,11,13 and 14 of the statement of claim.
“9. Sometime in 2005,

the Federal Government of Nigeria embarked on a reform of the mining sector. The reform entailed the adoption of a modern mining cadaster system which resulted in the revalidation of existing mining titles. As part of the reform, holders of existing titles were required to settle all outstanding debts in the form of fees due to the Federal Government of Nigeria.
10. Upon conclusion of the re-validation exercise, the SML was re-designated as NL19. It was however re-issued in the name of the 1st Defendant thereby purporting to vest the interest therein exclusively in the 1st Defendant.
11. The Plaintiff avers that as of the time of the re-designation, the holders of the SML (including the Plaintiff and the 1st Defendant) had outstanding obligations to the Federal Government in terms of fees. The Plaintiff avers further that the re-issuance of ML 19 in the name of the 1st Defendant did not translate to the divestment of the Plaintiffs interest in the bundle of rights constituted in ML 19.
….
13. Plaintiff made several representations to the Defendants with a view to correcting the erroneous assumption that ML 19 exclusively belongs to

the Defendants.
14. Ignoring Plaintiff’s representations and acting on the misconception resulting from the re-issuance, the Defendants have since seized 19 ML and have purported to vest same in the 1st Defendant.”

The above paragraphs are clear to the effect that sometime in 2005 the Federal Government embarked on a reform of the mining system which reform involved revalidation of the mining leases including. Upon the conclusion of the revalidation, the Special Mining Lease 11012 (SML) was re-designated as ML 19 and ML19 was issued in the name of the 2nd Respondent. This is an indication that the Mining lease to which the Appellant was supposed to be exercising interest over now became ML 19 and was no longer under the control of the Appellant or its predecessor. To the understanding of the Appellant, and any reasonable person, this move of revalidation of the mining lease and re-designating same to the 2nd Respondent was some form of transfer of the mining lease to the 2nd Respondent. The Appellant knowing that the re-designation affected his interest in ML19, it made efforts to correct what he called an error. Though specific dates

were not stated after 2005 but it is safe to conclude that the re-validation was done in 2005 as part of the reform. At this stage the cause of action arose and has come into existence and accrued to the Appellant. The lower Court held the view that the cause of action arose in 2005 when the Appellant knew that the mining lease has been revalidated and the mining lease it had title to has been re-designed as ML 19 in favour of the 2nd Respondent. At this time the Appellant should have instituted the action. This it did not do until 2015 which is a period of 10 years later.

Even if one can generously say that the cause of action did not arise in 2005, the cause of action cannot exceed 2012 as there are indications from the letters written by the Appellant to the Director General, Nigeria Mining Cadastre Office on 29/10/12 (found on pages 44-45 of vol.1 of the records), The Minister of Mines and Steel on 20/11/2012 (found on pages 36-38 of vol.1 of the record) and the Vice President of Nigeria on 1/2/13 (found on pages 40 – 42 of vol 1 of the record of appeal) showing that the Appellant had known of the revalidation and re-designation of the Mining lease

in favour of the 2nd Respondent since 2012 as these letters were more of appeals to reconsider the re-designation in favour of the 2nd Respondent. This clearly shows that the Appellant knew of the seizure, transfer and vesting of interest or title of ML 19 in the 2nd Respondent since 2012. If the cause of action cannot be said to arise in 2005 it cannot escape the dragnet of 2012. The position held by the Appellant that the cause of action arose in April 2015 cannot hold water. The averment of the Appellant in paragraphs 13 and 14 of the Statement of Claim also buttresses this position. I will reproduce the said paragraphs again for ease of reference. The Appellant states thus:
“13. Plaintiff made several representations to the Defendant with a view to correcting the erroneous assumption that ML 19 exclusively belongs to the Defendants.
14. Ignoring Plaintiff’s representations and acting on the misconception resulting from the re-issue, the Defendants have since seized 19 ML and have purported to vest same on the 1st Defendant.”

These paragraphs shows that the Appellant knew of the seizure of ML 19 and vesting of same on the

1st Defendant (2nd Respondent) since before the action was filed in May 2015. While these paragraphs did not put a date to it but the meaning of the word ‘since’ by ordinary grammatical meaning cannot be referring to a period of just three months ago. The cause of action therefore accrued in 2005 and at best in 2012 and definitely not in April 2015. Since the action was filed in May 2015, it was not filed in compliance to Section 2(a) of the Public Officers Protection Act as it was filed later than the three months required under the Law. I have no difficulty whatsoever in resolving issue 2 also in favour of the Respondents.

The obvious is that this appeal fails and it is dismissed. The ruling of Hon. Justice M. S. Hassan of the Federal High Court of the Lagos Division in Suit No. FHC/L/CS/757/2015- Base Developments Limited vs. Attorney General of the Federation & Anor delivered on 14/10/2016 is hereby affirmed.
I award cost of N200,000 (Two Hundred Thousand Naira) in favour of the Respondents against the Appellant.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the comprehensive judgment prepared by my learned brother,

EBIOWEI TOBI, J.C.A

BALKISU BELLO ALIYU, J.C.A.: I have had the benefit of reading in draft the Judgment just delivered by my learned brother TOBI EBIOWEI, J.C.A.
His Lordship has exhaustively dealt with the issues that called for determination in this appeal and I agree with the reasoning and conclusion reached to the effect that appeal lacks merit and deserves to be dismissed.

I join in dismissing the appeal and I affirm the Ruling of Federal High Court delivered on the 14th October, 2016 in respect of Suit No: FHC/L/CS/757/2015. I abide by the order of cost made in the lead judgment.

Appearances:

SALIHU Esq. For Appellant(s)

FOLUSO AKINLONU Esq. (Director MOJ Fed.) For Respondent(s)

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