CHIEF CHRISTOPHER ARUA v. CHIEF FIDELIS I. K. UGWU (2016)

CHIEF CHRISTOPHER ARUA v. CHIEF FIDELIS I. K. UGWU

(2016)LCN/8573(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of May, 2016

CA/E/82/2011

RATIO

APPEAL: GROUNDS OF APPEAL; ATTITUDE OF COURT TOWARDS PROLIFERATION OF ISSUES
Now, let it be restated and emphatically too, that this court has consistently, persistently and relentlessly frowned at the attitude of parties formulating more issues than the grounds of appeal. Issues for determination in an appeal are required to be equal or less in number than the grounds of appeal upon which the Lower Court’s judgment is being challenged. Any party, who wishes to argue several issues on appeal, should endeavour to raise several grounds of appeal to meet the intended issues. It is instructive and significant to observe that, in the instant case, it was the respondent’s counsel who raised more issues than required. This practice is totally uncalled for and should be discouraged. If the learned counsel for the respondent intends to raise more issues as he has done, it is only proper for him to cross -appeal (if he deems it necessary) and thereby ensures that the various points he intends to argue are duly incorporated in the number of grounds of appeal. The default on the part of the respondent’s counsel in this regard could only be likened, to the case of a mourner who cried louder than the bereaved. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A
COURT: PLEADINGS; DUTY OF COURT NOT TO GO BEYOND THE PLEADINGS OF PARTIES
It is trite law, that in civil actions, courts are invariably bound to consider the case of a party as set out by the party concerned and are precluded from going beyond the partys case as set out by him and relying on extraneous matters in reaching their decisions. This standpoint is to avert the likelihood of the court getting enmeshed in the conflict between the parties and ending up descending into the arena. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A
INTERPRETATION: ATTITUDE OF COURT TOWARDS USING LITERAL RULE OF INTERPRETATION
It is indeed, one of the first rules of interpretation, that where the wordings of a statute are clear and unambiguous, the Court must give them their plain, ordinary, literal or natural meanings. SeeBernard Amasike vs. Registrar General Corporate Affairs Commission & Anor. (2010) 5 – 7 SC (Pt.1) 147; Bronik Motors Ltd & Anor. vs Wema Bank Ltd. (1983) NSCC 226. Thus, it is a trite principle of interpretation that where the provision of a statute is clear and unambiguous, the Court is bound to give literal interpretation or ordinary grammatical meaning to the words of the statute. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A
ACTION: STATUTE BARRED ACTION; EFFECT OF A STATUTE BARRED ACTION
S.37(1) of the Actions Law of Enugu State provides as follows:-
“subject to any written law from time to time in force in the State, no action shall be brought against any person for any act done in any public duty or authority, or in respect of any neglect or default in the execution of any such law, duty or authority, unless it is commenced before the expiration of one year from the date on which the cause of action accrued.
Provided that where the act, neglect, or default is a continuing one, no cause of action in respect thereof shall be deemed to have accrued, for the purpose of this subsection until the act, neglect or default has ceased”.
The issue of limitation is always strictly construed. The cause of action abates immediately the time to file an action passes. SeeAremo II v. Adekanye & Ors (2004) 13 NWLR Pt. 891 Pg.572; Balla Hassan v. Dr. Muhzu Babagida Aliyu (2010) 17 NWLR Pt.1223 P9.547. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

CHIEF CHRISTOPHER ARUA Appellant(s)

AND

CHIEF FIDELIS I. K. UGWU Respondent(s)

MASSOUD ABDULRAHMAN OREDOLA, J.C.A (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling delivered by Honourable Justice A. R. Ozoemena of the Enugu state High Court, sitting at Enugu-Ezike (hereinafter referred to as the ‘Lower Court?). The said ruling was delivered on the 10th day of May, 2010.

The substantive suit which gave birth to the ruling was instituted by the plaintiff/respondent, vide a writ of summons dated the 19th day of March, 2009 and filed on the 6th day of May, 2009 contemporaneously with the statement of claim, against the then 1st and 2nd defendants, wherein the plaintiff/respondent claims the following reliefs as reproduced below:
“(a). A declaration that an elected State Governor of a State in Nigeria have no authority and power to perform the duties and functions of the office of the Governor of a State before the subscription to the oath of office and oath of allegiance and after the expiration of his tenure of office under the 1999 Constitution of the Federal Republic of Nigeria.
(b). A declaration that the purported recognition of the 1st defendant by the Governor of Enugu State

one year and ten months before his assumption of office is ultra vires the Governor, null, void and of no effect whatsoever.
(c). A declaration that the Enugu State Government lacks the powers under the law to ignore/disregard the findings of its own panel that the 1st defendant was not the elected/selected Igwe and traditional ruler of Ovoko Autonomous Community, and proceed to recognize the 1st defendant as the Igwe and traditional ruler of the community.
(d). A declaration that the plaintiff, having been found and confirmed as the elected/selected Igwe and traditional ruler of Ovoko Autonomous Community, by the report of the Enugu State Government investigation, is the proper person to be recognized and certificated by the Enugu State Government.
(e). An order for the recognition and certification of the plaintiff as the Igwe and traditional ruler of Ovoko Autonomous Community.
(f). An order of the Honourable Court setting aside the recognition and certification of the 1st defendant as the Igwe and traditional ruler of Ovoko Autonomous Community, and other thing done or purported to have been in pursuance thereto.
(g). An order of

injunction restraining the 1st defendant from performing or continuing to perform any of the functions and duties of the Igwe and traditional ruler of Ovoko Autonomous Community and enjoying any rights or privileges attached to the said exalted office.”

?Upon being served with the processes filed by the plaintiff/respondent, the 1st defendant/appellant’s counsel entered appearance on the 26th day of May, 2009 and subsequently filed a Notice of Preliminary objection on the 13th day of July, 2009 in the terms stated below:
“1. Take Notice that this Honourable court will be moved on the 30th day of September, 2009 at the hour of Nine O?clock in the forenoon or soon thereafter as counsel may be heard on behalf of the 1st defendant for an order dismissing/striking out the suit.
2. AND FURTHER TAKE NOTICE that the grounds upon which this action is brought is that that plaintiff has no right, capacity or title in law to institute this action/alternatively the action is incompetent or is barred by S. 37 of Actions Law of Enugu State.
AND FURTHER TAKE NOTICE that at the hearing of this application the defendant will rely on all processes filed

in this action which form part of the records of the Honourable Court”

The said preliminary objection was accompanied by a written address in support thereof. Consequent to the objection, the plaintiff/respondent responded vide a written reply, filed on the 4th day of September, 2009. Also, the 1st defendant/ appellant filed a further written address on points of law on the 23rd day of September, 2009.

The 2nd defendant on his own part entered appearance in respect of the substantive suit on the 26th day of May, 2009 and thereafter filed a motion on notice on the 25th day of February, 2010 wherein an order extending the time within which he “could file and serve his statement of defence and other processes” was sought.

Also, the 2nd defendant filed his response in support of the 1st defendant/appellant’s notice of preliminary objection on the same date.

The learned counsel for the parties with regard to the preliminary objection, were equally given adequate opportunities to make oral amplifications with regard to their respective written addresses. After due consideration of all the arguments as well as various authorities cited by learned

counsel to the parties thereon, the learned trial judge held as follows:
“I am of the opinion that the Defendants can properly bring this preliminary objection without filing the Statement of Defence. The Defendants may not even file the details of preliminary objection the facts that the Defendants did not have to file conditional appearance to me is not material.
What bothers my mind is the issue of Section 37 (1) of the Actions Law. The Plaintiffs counsel in exposing the implications of that section has said –
“It is our submission that an officer performing a public duty or exercising a public authority in the execution of a law, duty or authority can be brought to Court for redress if he steps outside the confines of the alleged duty in this case.”
He supported that assertion with a number of authorities to wit –
1. Godwin Nwankwere v. Ademimi (1995) All N.L.R. 119 at 124.
2. R. A. Okoh v. The Nigerian Navy & Ors. (2007) 25 W.R.N. 46 at 64.
3. Offoboche v. Ogoja Local Govt. (2001) 36 WRN 1.
4. Aiyelabegan v. Local Govt. Service Commission (2009) 22 WRN 108 at 135.
5. Adams v. Ibadan District Council (1961)

WNLR 52.
6. Egbe v. Belgore (2004) 8 NWLR (Pt.875) 366.
“He said by the Revised Laws of Enugu State 2004, only the Governor of Enugu State can recognize a person as a Traditional Ruler. Sullivan l. Chime became the Governor of Enugu State on 29th day of May 2007. The alleged recognition of 1st Defendant by Sullivan Chime on 1st August 2005 when he was a merely the Attorney General of Enugu State; was act performed outside the colour of the office of a State Governor.”
I do not think that both counsel for Defendants have attempted to answer that in their reply and further reply.
I will in the circumstance of this case, and it is my humble opinion, that Defendants, need to file their Statement of Defence in reply to the issues raised by the Plaintiff.
Consequently, the preliminary objection fails and it is hereby dismissed. I make no order as to cost.”

Dissatisfied with the above decision of the learned trial judge, the 1st defendant/appellant appealed against the same vide a notice of appeal filed on 24/05/2010. The said notice of appeal contained a single ground of appeal, which reads as follows:
“Ground 1
ERROR IN

LAW
The learned trial judge erred in law when he held that the suit is not statute-barred.
PARTICUTARS OF ERROR
The Honourable judge did not give proper interpretation to S.37 (1) of Actions Law, Cap. 4 Revised Laws of Enugu State of Nigeria, 2004 which is a limitation law.”
In accordance with the rules of this Court, The parties duly filed their respective briefs of argument. The appellant’s brief of argument was settled by D. C. Agbakwuru – Onyike, Esq. As a result of a motion on notice filed on the 23rd day of October, 2012 the said brief of argument was deemed by order of this Court as having been property filed and duly served on the 8th day of February, 2013. The respondent/plaintiffs brief of argument was settled by Okenna Agubuzu, Esq. It was dated the 1st day of March, 2013 and filed on the 5th day of March, 2013. The 2nd defendant did not file any brief of argument before this Court. His name was formally struck out from this appeal by order of this Court made on the 9th day of February, 2016 pursuant to a motion on notice filed by the appellant on 24th March, 2014. In accordance with the rules of this Court, the

appellant/defendant equally filed a reply brief on the 25th day of March, 2013 in reply to the issues and/or new points of law raised by the plaintiff/respondent in his brief of argument. Henceforth, in this judgment, the 1st defendant/appellant shall be called the appellant, while the plaintiff/respondent shall be called the respondent.

The learned counsel for the appellant in the appellant’s brief of argument framed a single issue for determination in this appeal. The issue is reproduced thus:
“Whether the learned trial Judge was right after failing to consider, interpret and apply S.37(1) of the Actions Law of Enugu State, 2004, to turn round and hold that the Respondent’s suit is not statute ? barred under that law.”

The learned counsel for the respondent on his part, distilled two (2) issues for the determination of the instant appeal matter.
The issues are as follows:
“a. Whether the Governor of Enugu State (represented by the 2nd respondent) can be brought to court in respect of the said recognition of the appellant on 1st day of August 2005, outside the limitation period prescribed by Section 37 (1) of the Actions

Law?
b. Whether the learned trial judge was wrong to have held that the 1st respondent’s suit No. EZ/8/2009 – Chief Fidelis I. K. Ugwu vs. Chief Christopher Arua & Anor was not barred by Section 37 (1) of the Actions Law 2004?”

Now, let it be restated and emphatically too, that this court has consistently, persistently and relentlessly frowned at the attitude of parties formulating more issues than the grounds of appeal. Issues for determination in an appeal are required to be equal or less in number than the grounds of appeal upon which the Lower Court’s judgment is being challenged. Any party, who wishes to argue several issues on appeal, should endeavour to raise several grounds of appeal to meet the intended issues. It is instructive and significant to observe that, in the instant case, it was the respondent’s counsel who raised more issues than required. This practice is totally uncalled for and should be discouraged. If the learned counsel for the respondent intends to raise more issues as he has done, it is only proper for him to cross -appeal (if he deems it necessary) and thereby ensures that the various points he intends to argue are

duly incorporated in the number of grounds of appeal. The default on the part of the respondent’s counsel in this regard could only be likened, to the case of a mourner who cried louder than the bereaved.

The above notwithstanding, I have critically examined the two(2) issues raised by the learned counsel for the respondent and found both issues to be materially the same and capable of being encapsulated or subsumed into the sole issue crafted by the appellant. Having gone through the record of appeal placed before us, the notice of appeal, issues raised by the parties, arguments canvassed thereon and authorities cited in support thereof, I am of the firm view point that the main or sole issue that calls for determination in this appeal is:
“Whether the appellant could be held to be entitled to the durational limitation cum protection provided by Section 37 (1) of the Actions law of Enugu State, 2004.”

ARGUMENTS ON ISSUE.
Learned counsel for the appellant contended, that the ratio decidendi upon which the learned trial judge relied upon in order to arrive at his decision, is with due respect based on an “irrelevant authority and alleged untested

facts raised by the respondent.”
Additionally, that “both the cited authority (at p.154) and the argument (at p.155) are based on a law different from the law which the Appellant relied upon.”

The learned appellant’s counsel also maintained, that the learned trial judge relied on an “unspecified Public Officers (Protection) law which the defence did not specifically plead,” while the appellant relied on Section 37 (1) of the Actions Law of Enugu State, 2004. The learned counsel contended further, that the Lower Court failed and/or neglected to review the provisions of Section 2 (a) of the “alleged” Public Officers (Protection) Act to show that the provisions are the same with that of Section 37(1) of the Actions Law. It was also contented by the learned counsel, that whereas the provisions of the said Section 2(a) of the Public Officers (Protection) Act may admit of some exceptions, that of Section 37 (1) of the Actions Law does not. Additionally, that “the effect of S. 37 (1) in this case is that the respondent (plaintiff) having not complied with the law, has lost both the right of action and the cause of action.” Also, the counter argument was

canvassed by the learned appellant’s counsel, that argument of the learned counsel to the respondent which the Lower Court adopted are matters of facts which are to be proved by evidence at the hearing, after the issue of competence and jurisdiction of the suit itself must have been settled.

Finally, the learned counsel submitted and reiterated the point that the learned trial judge, failed to interpret and apply Section 37 (1) of the Actions Law, before he arrived at his decision. Rather, that he applied the interpretation of a completely different law and came to a wrong conclusion. He therefore urged us to allow this appeal, set aside the ruling of the Lower Court and strike out the respondent’s suit, with the same having been statute – barred. He referred us to the case of Uzuda v. Ebigah (2009) All FWLR (Pt.493) 1224 on the position of the law, where a Court failed to consider and adjudicate on issues properly placed before it.

The learned counsel for the respondent in response, submitted that the burden of proof or onus is on every appellant to establish that the decision and findings of the trial Court being appealed against is wrong.

According to the learned counsel, this is because it is presumed in law, that every decision of a Court based on facts placed before it, is right and that the onus of establishing that the said decision is indeed wrong is on the appellant whose duty is to rebut the presumption. He relied on the provisions of Section 145 (2) of the Evidence Act, 2011 and the following cases: Colonial Securities Co. Ltd. v. Messy & Ors. (1896)1 q. B. D. 36 and Igboanude Ogbodo & Anor. vs. Emmanuel Ogba & Ors. (1987) 3 SCNJ 82 @ 88.

The learned respondent’s counsel further submitted that, “Section 37(1) of the Actions Law is a limitation law that seeks to prohibit the prosecution of civil actions against persons, for acts done in pursuance, or execution or intended execution of any written law or of any public duty or authority, or in respect of any neglect or default in the execution of any such law, duty or authority, unless it is commenced before the expiration of one year from the date on which the cause of action accrued”; the learned counsel however, contended that, “immediately the person protected steps outside the bounds of the said public duty or

authority, the protection offered by the limitation law eclipses and an action can therefore be brought against such person outside the limitation period.” He relied on the cases of Ekemode v. Alausa (1961) 1 All NLR 143; Aiyelabegan v. Local Government Service Commission Ilorin, Kwara State (2009) 22 W.R.N. 108 at 135; R. A. Okoh v. The Nigerian Navy & Ors. (2007) 25 W.R.N. 46 at 54 among others.

The learned counsel for the respondent further maintained that both Section 2 (a) of the Public Officers Protection Act and Section 37 (1) of the Actions Law are in pari materia, except for the length of time covered by the durational period. Consequently, he submitted that in the instant case, the respondent asserted that the Governor of Enugu State acted beyond his constitutional power, thus the appellant could still be sued. Again, the learned counsel maintained that the learned trial judge was right when he held that the suit was not statute – barred. He urged this Court to equally so hold, and dismiss this appeal as being unmeritorious.

?In the appellant’s reply brief, the learned counsel for the appellant submitted that the question as to whether

a public officer can be brought to Court, outside the period of limitation can only be determined at a full blown trial, after the competence of the suit and jurisdiction of the Court must have been duly raised and determined. According to the learned appellant’s counsel, the learned trial judge acted in error when he considered that question at such an interlocutory stage. He referred us to the case of NNPC v. Famfa Oil Ltd. (2009) All FWIR (Pt.480) 631.

The learned counsel further submitted that statutes which pertained to limitation periods are of strict application, with the effect that legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. He referred to the case of Congress for Progressive Change v. Yuguda (2012) All FWLR (Pt.651) 1471. Learned appellant’s counsel also submitted that, the Governor of Enugu State cannot therefore be brought to Court in respect of claims made by the respondent based on an event which occurred on 1st day of August, 2005 and which said action was re – affirmed on 25th September, 2007, but to which the respondent only filed the instant action on the 6th day of May, 2009

(more than two or three years after the wrongful act was allegedly committed); “outside the limitation period prescribed by Section 37(1) of the Actions Law, simply because the action is statute-barred, and the Governor acted in substantial compliance with the law, policies and practices of Government.” He referred us to the case of Yakubu Sani v. O.L.G.T.C. (2008) 34 (pt.11) N.S.C.Q.R. 979. The learned counsel then submitted, that the authority referred to above supercedes all the authorities cited by the respondent. He therefore urged us to resolve this issue in favour of the appellant and allow the appeal.

Having gone through the printed records placed before us, the submissions and arguments of the learned counsel for both parties as well as the authorities cited, I am of the firm view point that the central issue in this appeal lies in the interpretation and application of the provisions of Section 37 (1) of the Actions Law and the exceptions thereto, vis-a-vis the provisions of Section 2 (a) of the Public Officers Protection Act. For purpose of clarity and better appreciation, the provisions of the said sections are reproduced below:
Section 37 of

the Actions Law:
“Subject to any written law from time to time in force in the State, no action shall be brought against any person for any act done in any public duty or authority, or in respect of any neglect or default in the execution of any such law, duty or authority, unless it is commenced before the expiration of one year from the date on which the cause of action accrued.
Provided that where the act, neglect, or default is a continuing one, no cause of action in respect thereof shall be deemed to have accrued, for the purpose of this subsection, until the act, neglect or default has ceased.”
Section 2 (a) of the public officers protection Act, states as follows:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or 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 act, law, duty or authority, the following provisions shall have effect –
a. Limitation of Action
The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next

after the act, neglect, or default complained of, or in the case of a continuance of damage within three months next after the ceasing thereof:
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison,”
After a thorough analysis of the statutory provisions reproduced above, I am of the firm view point that the provisions of both sections are materially the same, save for variations in the use of words and the length of time of the limitation periods. Also, the provision of Section 2 (a) of the Public Officers Protection Act is wider in scope than that of Section 37(1) of the Actions Law. Nevertheless, the general principle of law is that, where the law provides for the bringing of action within a prescribed period, in respect of a cause of action which accrues to a plaintiff. Such a proceeding shall not be brought after the time prescribed by the statute. An action brought outside the prescribed period offends against the particular statutory provision and does not give rise

to a cause of action. See Hassan v. Aliyu & Ors. (2010) LPELR – 1357.
Indeed, a plaintiff may have a cause of action, but loses the right to enforce that cause of action by judicial process, because the period of time laid down by the limitation law for bringing such an action had elapsed. See Odubeko vs. Fowler (1993) 9 SCNJ 185. Put differently, where the law provides for the bringing of an action within a prescribed period, in respect of a cause or action accrueing to the plaintiff, proceeding shall not be brought after the time allowed by the statute had expired. This means that an action brought outside the stipulated period offends against the provision of the statute and does not give rise to a cause of action. SeeN.P.A. Plc vs Lotus Plastics Ltd (2005) All NLR 322.
The above principle was recently reiterated by the Supreme Court, per Olufunlola Oyelola Adekeye, JSC. in the case of Hassan v. Aliyu & Ors. (2010) ALL FWLR (Pt.539) 1007 @ 1066, where His Lordship enunciated and pronounced as follows:
“When 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.”
Limitation law engenders the principle, which requires that the plaintiff is obliged and mandatorily too, to seek prompt judicial remedial measure, for the breach of his right in a Court of law, within the period prescribed by the law. Failure to act promptly and timeously in this regard, will render his right of action or cause of action to become otiose and unenforceable at the expiration of the period stipulated for the commencement of such an action by the limitation law. See Bakare vs. NRC (2007) 7 S.C.N.J. 131.

It is instructive and pertinent to observe, that the appellant’s preliminary objection was predicated solely on the provision of Section 37

(1) of the Actions Law, while the Public Officers Protection Act was introduced by the respondent in his reply to the appellant?s preliminary objection. It is trite law, that in civil actions, courts are invariably bound to consider the case of a party as set out by the party concerned and are precluded from going beyond the party?s case as set out by him and relying on extraneous matters in reaching their decisions. This standpoint is to avert the likelihood of the court getting enmeshed in the conflict between the parties and ending up descending into the arena. In the instant case, it is not in doubt that the appellant was clearly not relying on the defence afforded by Section 2(a) of the Public Officers Protection Act, but on the one provided by Section 37 (1) of the Actions Law. Thus, the Lower Court was in error to have shifted the grounds on the appellant?s objection from the law he relied upon to an uninvoked statute. In addition, the provisions of Section 2 (a) of the Public Officers Protection Act was ordinarily enacted to serve as a shield for the public officers concerned and not as a sword as the respondent sought to utilize the

same.

Furthermore, the law is well settled that in order to determine whether and when a cause of action arose, the proper Court process to be examined is the writ of summons and or statement of claim. See Adekoya v. Federal Housing Authority (2008) 28 W.R.N.1. Thus, if the date of filing a suit as endorsed on the writ of summons is beyond the period allowed by law to enforce the accrued cause of action in respect of which the date of occurrence has been specified, that is, beyond the period allowed by the limitation statute, then the suit should be held as having been statute – barred. See Hassan vs. Aliyu (supra). In the instant case, both parties agreed that the substantive suit (upon which this appeal emanated from) was filed beyond the periodical limit, specified by Section 37 (1) of the Actions Law. Thus, the suit without much ado, should be held to have been caught by the limitation law. However, the respondent in the bid to escape the consequences of his inaction or deep slumber, made assertions with regard to several facts in his statement of claim asserting inter alia that the Governor of Enugu State in confirming the appellant as the recognised

traditional ruler of the Ovoko Autonomous Community acted ultra vires the Governor’s power and unconstitutionally. Thus, the limitation law could not avail him. I have earlier observed that that the appellant’s preliminary objection was not based on the provision of Section 2 (a) of the Public Officers Protection Act and that the same was introduced by the respondent in his reply to the preliminary objection. Also, I have earlier held that the said Section 2 (a) of the Public Officers Protection Act cannot be invoked out of the conual inclination of the appellant and the definitive disposition provided by the statutory provision. The same position is also maintained and retained by me.

It is indeed, one of the first rules of interpretation, that where the wordings of a statute are clear and unambiguous, the Court must give them their plain, ordinary, literal or natural meanings. SeeBernard Amasike vs. Registrar General Corporate Affairs Commission & Anor. (2010) 5 – 7 SC (Pt.1) 147; Bronik Motors Ltd & Anor. vs Wema Bank Ltd. (1983) NSCC 226. Thus, it is a trite principle of interpretation that where the provision of a statute is clear and

unambiguous, the Court is bound to give literal interpretation or ordinary grammatical meaning to the words of the statute. The provision of Section 37 (1) of the Actions Law clearly and in unambiguous terms provides for 12 (twelve) months within which a person can be sued for any act(s) of commission or omission(s) perpetrated, in the discharge of public duty or exercise of public authority. The exceptions sought to be introduced and or relied upon by the respondent and authorities cited in support thereto were decided pursuant to the provisions of Public Officers Protection Act and not based on the requisite ones in the Actions Law. It is therefore my firm view point that the said exception, did not avail the respondent.

In Olagunju vs. PHCN (2011) 10 NWLR (Pt. 1254) 113 @ 125, the Supreme Court, per Onnoghen, JSC stated thus:
“It should be noted that when a defendant contends that the action of the plaintiff is statute – barred, he is raising an issue of jurisdiction of the Court concerned on points of law because where an action is found to be statute – barred, it means that the Court has no jurisdiction to entertain it however meritorious the

case may be. The success of that point of law takes away the right of action from the plaintiff leaving him with an empty unenforceable cause of action.”
A plea by a defendant in any given case that the action is statute – barred is a plea which raises the issue of jurisdiction and which determinant is the writ of summons and the statement of a claim. See Mrs. O. Adekoya vs. Federal Housing Authority (2008) 4 SCNJ 151. Thus, in the end result, this issue is resolved in favour of the appellant.

?In view of all that I have stated above and with the sole issue raised for the determination of this appeal having been resolved in favour of the appellant, this appeal is accordingly allowed for being meritorious. The ruling of the Lower Court delivered on the 10th day of May, 2010 which pertained to the dismissal of the appellant’s preliminary objection dated and filed on the 13th day of July, 2009 is hereby set aside. The said preliminary objection is thereby deemed upheld. Consequently, the respondent’s suit No. EZ/8/2009 instituted at the High Court of Enugu State is hereby struck out for want of competence and jurisdiction. No order is made with regard to

costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have had the privilege of reading the judgment just delivered by my learned brother MASSUD ABDULRAHMAN OREDOLA JCA. I am in complete agreement with His Lordship?s reasoning and conclusion that this appear should be allowed. I will add a few ‘words.

The statement of claim is the only process to be considered when the determination of whether an action is statute barred is in issue. The recognition of the appellant which is the cause of action was made by the Respondent on 1st August 2005. The action at the trial court was brought by writ of summons on 06/05/2009 nearly four years after the event sought to be challenged. S.37(1) of the Actions Law of Enugu State provides as follows:-
“subject to any written law from time to time in force in the State, no action shall be brought against any person for any act done in any public duty or authority, or in respect of any neglect or default in the execution of any such law, duty or authority, unless it is commenced before the expiration of one year from the date on which the cause of action accrued.
Provided that where the act, neglect, or

default is a continuing one, no cause of action in respect thereof shall be deemed to have accrued, for the purpose of this subsection until the act, neglect or default has ceased”.
The issue of limitation is always strictly construed. The cause of action abates immediately the time to file an action passes. SeeAremo II v. Adekanye & Ors (2004) 13 NWLR Pt. 891 Pg.572; Balla Hassan v. Dr. Muhzu Babagida Aliyu (2010) 17 NWLR Pt.1223 P9.547.

In the circumstances, and for the fuller reasons stated with erudition by my learned brother, I allow the appeal and abide by all the orders in the lead judgment.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the opportunity of reading before now the lead judgment of my learned brother, HON. JUSTICE MASSOUD ABDULRAHMAN OREDOLA, J.C.A. I am in complete agreement with his reasoning, conclusion and all the orders made therein.

Appearances:

D. C. Agbakwuru-Onyike, Esq.For Appellant(s)

Barth O. Ezea, Esq. with him, Mrs. C. N. Aneke and Miss N. Eze for the Respondent

Victor Abochi, Esq. (Chief Legal Officer, Ministry of Justice, Enugu State) with him, Miss E. I. Idung (Pupil State Counsel, Ministry of Justice Enugu State) for the then 2nd Respondent whose name was struck outFor Respondent(s)

Appearances

D. C. Agbakwuru-Onyike, Esq.For Appellant

AND

Barth O. Ezea, Esq. with him, Mrs. C. N. Aneke and Miss N. Eze for the Respondent