CHIEF YAKUBU SANNI V. OKENE LOCAL GOVERNMENT & ANOR
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of June, 2005
IBRAHIM TANKO MUHAMMAD Justice of The Court of Appeal of Nigeria
MARY U. PETER ODILI Justice of The Court of Appeal of Nigeria
OLABODE RHODES- VIVOUR Justice of The Court of Appeal of Nigeria
CHIEF YAKUBU SANNI
(THE ONOJE OF UNEME IN EBIRA LAND) Appellant(s)
- OKENE LOCAL GOVERNMENT TRADITIONAL COUNCIL
2. ALHAJI (DR.) ADO IBRAHIM (OHINOYI OF EBIRA LAND Respondent(s)
RHODES-VIVOUR, J.C.A. (Delivering the Leading Judgment): The proceedings leading to this appeal were initiated in the High Court of Kogi State, holden at Okene on the 20th day of November, 2001. In that court, the appellant as plaintiff claimed against the respondents, then defendants, by way of writ of summons accompanied by statement of claim as follows:
1. A declaration that the purported letter of the defendants dated the 19th of January, 1998, addressed to the plaintiff removing him as a member of the 1st defendant is unconstitutional, illegal, an abuse of power, null and void and of no effect.
2. An Order that since the plaintiff was not appointed by the defendants jointly and severally, having been appointed by the Kogi State Government of Nigeria vide a letter dated the 17th day of July, 1995, it is only the Kogi State Government of Nigeria that can remove the plaintiff by virtue of the Kogi State Chiefs Appointment Deposition and Establishment of Traditional Council Law 1992.
3. An Order that the plaintiff is still a member of the Okene Local Government Traditional council and therefore, entitled to all the benefits attached to that office.
4. An injunction restraining the defendants jointly and severally, their servants, agents and privies from further embarrassing, inconveniencing the plaintiff as a member representing Edo-Uneme Community in Ebiraland in the Okene Local Government Traditional Council.
5. Claiming the sum of N100,000, being general damages for the embarrassment, inconvenience, financial loss, physiological pains (sic) the act of the defendants jointly and severally has caused the plaintiff.
In paragraph 5 of the statement of claim, the plaintiff deposed that he was appointed as a member of the Okene Local Government Traditional Council in a letter dated the 17th of July, 1995 by the Kogi State Government of Nigeria. According to the plaintiff, he was removed from the Okene Local Government by a letter dated the 19th of January, 1998.
It is as a result of his removal that the plaintiff instituted the action against the defendants jointly and severally as aforesaid.
The defendants filed a joint statement of defence and pleaded in paragraph 2(a) as follows:
“2. The defendants shall at or before the trial of this suit raise by way of objection on point of law, the following matters, that is to say –
(a) the action is statute-barred and is not maintainable by virtue of Section 2(a) of the Public officers (Protection) Law, Cap 111 of the Laws of Northern Nigeria 1963, as applicable in Kogi State.
On the 9th of October, 2001, the defendants filed a formal motion on Notice under Order 24 rules 2 and 3 of the High Court (Civil Procedure) Rules of Kogi State 1991. The application was founded on the provisions of Section 2(a) of the Public Officers (Protection) Law Cap 111 of the Laws of Northern Nigeria 1963, as applicable in Kogi State.
After hearing arguments, the learned trial Judge in a considered ruling delivered on the 20th of November, 2001 dismissed the plaintiff’s action on the sole ground that the action is statute-barred, it being caught by the provisions of the Public Officers (Protection) Law 1963.
Aggrieved by the ruling of the Kogi State High Court the plaintiff has appealed to this court. I shall hereinafter refer to the plaintiff and the defendants in this ruling as the appellant and the respondents respectively.
In accordance with the rules of this court, the appellant, through his learned Counsel filed his brief of argument on the 11th day of October, 2004. The respondents duly filed their joint brief of argument on the 21st day of March, 2005, after obtaining the leave of Court to file it out of time.
In the appellant’s brief of argument, the following two issues are identified as arising for determination in this appeal, namely:
“1. Even though the Learned trial Judge held that she could not determine at the interlocutory stage whether or not, the defendants acted outside the colour of their office or outside their statutory or constitutional duties, whether the learned trial Judge was right to have nonetheless, proceeded to dismiss the action on the basis of the Public Officers (Protection) Law as applicable in Kogi State.
2. Whether the learned trial Judge was right in holding that the defendants are protected by Section 2(a) of the Public Officers (Protection) Law, Chapter 111 of the Laws of Northern Nigeria, 1963 as applicable in Kogi State.”
The respondents submitted a sole issue for determination, to wit:
“1. Were the defendants in the circumstances of this case entitled to the statutory protection contained in Section 2(a) of the Public Officers (Protection) Law Cap 111 Laws of Northern Nigeria, 1963 as Applicable to Kogi State.”
At the oral hearing of the appeal before us on the 24th day of May, 2005, both learned Counsel for the parties adopted their respective briefs of argument.
On Issue No. 1, learned Counsel for the appellant Tony Anyanwu, Esq. observed that after the trial Judge was unable to determine whether or not, the respondents acted outside the colour of their office, the learned trial Judge was wrong to dismiss the action on the basis of the Public Officers (Protection) Law Cap 111 of the Laws of Northern Nigeria 1963. Relying on IWEKA v. SCOA NIG. LTD. (2000) 7 NWLR (Pt. 664) at 329; Shell Petroleum Dev. Co. v. Onasanya (1976) 6 SC. 89 at 94; Akinbi v. Military Gov. Ondo State & Anor. (1990) 3 NWLR (Pt. 140) 525.
He submitted that the trial Judge should have held the preliminary objection to be premature.
On the second issue he conceded that the respondents are public officers within the contemplation of the Public Officers (Protection) Law Cap. 111 of the Laws of Northern Nigeria, 1963, but contended that the respondents still had a duty to show that the removal of the appellant from the 1st respondent was an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority. Reliance was placed on – John Ekeogu v. Elizabeth Aliri (1990) 1 NWLR (Pt. 126) at 345; Alhaji Aliyu Ibrahim v. Judicial Service Commission Kaduna State & Anor. (1998) 14 NWLR (Pt.584) 1; 64 LRCN at 5044; Abubakar v. Gov. Gombe State (2002) 17 NWLR (Pt. 797) 533.
He urged the Court to resolve both issues in favour of the appellant. Learned Counsel for the respondents, Fola Ajayi, Esq. in his own reply observed that the question whether the respondents acted outside their statutory and constitutional duty arises only when it is shown that the appellant’s action is maintainable. He submitted that when the action is found to be Statute-barred, whether the respondents acted within the colour of their office becomes otiose. Reliance was placed on – Ekeogu v. Aliri (1990) 1 NWLR (Pt.126) 345; (1991) 3 SCNJ at 45; Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 549; Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546.
He urged the court to affirm the decision of the trial Court.
Limitation legislation sets out limitation periods for different classes of cases. That is to say they provide that certain actions shall not be brought after a period of time from the date on which the cause of action accrued.
The main purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim. Put in another way a claim which he never expected to have to deal. For example, if a claim is brought a long time after the events in question, there is a strong likelihood that evidence which was available earlier may have been lost, and the memories of witnesses may have faded.
Where actions are brought against public officials, they must be brought quickly, that is within 3 months as provided by Section 2 of the Public Officers (Protection) Law. This is designed to protect public officials who are very busy people from being distracted or submerged in a sea of litigation usually at the instance of professional litigants.
Limitation is a procedural defence, a complete defence where a plaintiff’s action was filed outside the time allowed by the limitation law, the plaintiff would still have a cause of action on but sadly one that cannot be enforced.
In order to determine if the suit was not instituted before the expiration of the limitation period, the trial Judge is enjoined to examine the originating process to see when the cause of action arose and compare that date with when the originating process was filed. If the time on the originating process is beyond the period allowed by the Limitation Law the action is statute-barred. See Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) at 549; Eboigbe v. NNPC (1994) 3 NWLR (Pt. 347) p. 649; Utih V. Egorr (1990) 5 NWLR (Pt.153) p.771.
The position of the law is that a defence of Limitation must be specifically pleaded and this is done by stating the statutory provision relied on. See Savage v. Rotibi (1944) 10 WACA at 264; Iheanacho v. Ejiogu (1995) 4 NWLR (Pt. 389) p. 324.
A party would not be allowed to take advantage of the limitation law, where there is compelling evidence of disability, mistake, fraud, and in certain cases involving personal injury, death. See Anwadike v. Administrator General of Anambra State (1996) 7 NWLR (Pt.460) p. 315; Arowolo v. Ifabiyi (1995) 8 NWLR (Pt. 414) p. 496; Ibrahim v. Gaye (2002) 13 NWLR (Pt. 784) p. 267.
The substance of this appeal is whether the respondents, who are a public authority and a public officer within the meaning of Section 2(a) of the Public Officers (Protection) Law Cap 111 Laws of the Northern Nigeria 1963 can claim protection under the said legislation, if it is found that they had no statutory power to remove the appellant from the Okene Local Government Traditional Council.
Section 2(a) of the Public Officers (Protection) Law Cap 111 Laws of Northern Nigeria, 1963 states as follows:
“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 law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provisions shall have effect –
(a) the action, prosecution or proceeding shall not lie or be instituted, unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof …”
It is clear from the section that its provision applies to an action against a public officer in relation to any act done by the public officer either –
(i) in pursuance or execution or intended execution of any law; or
(ii) in pursuance or execution or intended execution of any public duty or authority; or
(iii) in respect of any alleged neglect or default in the execution of any Law, duty or authority.
The provisions of subsection (a) of Section 2 are very clear that if the action is brought after the expiration of three months after the commission of the act being complained against, then the action cannot be instituted as it would have been caught by the provisions of Section 2(a) (supra) and thus statute-barred.
In this appeal, uncontroverted facts reveal that the appellant received from the respondents a letter dated 19/1/98 informing him of his removal from the Okene Local Government Traditional Council. The appellant claimed to have received the said letter at the tail end of January, 1998. (See paragraph 11 of the Statement of claim). It was at the end of January, 1998 that the appellant had a cause of action. He was expected by the Provisions of Section 2(a) of the Public Officers (Protection) Law Cap 111 Laws of Northern Nigeria, 1963 to commence action against the respondents within three months from the 31st of January, 1998, that is to say on or before the end of April, 1998, but in this case he took out a writ against the respondents on the 11th of June, 1998. It is obvious that the appellant’s suit is no longer maintainable, it being statute-barred.
The respondents invoked in Limine, the procedure under Order 24 rules 2 and 3 of the Kogi State High Court (Civil Procedure) Rules, to claim protection under Section 2(a) of the Public Officers (Protection) Law Cap 111 Laws of Northern Nigeria, 1963. This is a defence by way of Limitation of action. A decision in Limine is one at the very beginning, or at the threshold. A case decided or terminated without taking evidence or hearing witnesses. Under this procedure the court is to decide whether the action is maintainable and not whether the defendant is liable. To succeed the respondents are to show and they did show that the action was not instituted before the expiration of the three months prescribed by the Public Officers (Protection) Law.
It is only when the action is maintainable, that is to say when it is filed within three months after the cause of action arose that evidence can be led by the parties and the court determines liability. Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) at 546; Fred Egbe v. Justice Adefarasin & Anor. (1985) 1 NWLR (Pt. 3) at 549; Nwankwere v. Adewunmi (1967) NMLR at 45; (1966) 1 SCNLR 356.
All these cases were decided by the Supreme Court.
Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules were the rules of Court the defendant invoked, in Limine in the Egbe case. Its provisions are in pari materia with the law in issue, that is with the provisions of Order 24 rules 2 and 3 of Kogi State High Court Civil Procedure Rules.
I now turn to two cases relied on heavily by learned Counsel for the appellant. They are –
1. Abubakar v. Gov. Gombe State (2002) 17 NWLR (Pt. 797) at 533;
2. Alhaji Aliyu Ibrahim v. Judicial Service Commission Kaduna State & Anor. (1998) 14 NWLR (Pt.584) 1; (1998) 12 SC P. 20.
Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) at 546 was decided by the full Court of the Supreme Court.
In that case, Mr. Fred Egbe sued the respondents for conspiracy and libel claiming N500,000 as special and general damages. He claimed that a letter written by the 3rd respondent to the 2nd respondent contained libellous material. The letter was dated 21/3/78. The suit was instituted on 20/12/78. At the close of pleadings but before evidence was taken, the respondents filed an application under Order 22 rules 3 and 4 of the Lagos High Court Civil Procedure Rules, 1972 that the suit be struck out for lack of cause of action on the ground inter alia, that being public officers they were protected from liability from the suit by Section 2(a) of the Public Officers Protection Law, Cap 114 of the Law of Lagos State.
Order 22 rules 3 and 4 supra is in pari materia with order 24 rules 2 and 3 of the Kogi State High Court Civil Procedure Rules 1991.
The Supreme Court held inter alia that the action brought outside the period prescribed in Section 2(a) of the Public Officers (Protection) Law was incompetent, it not being maintainable it could no longer give rise to a cause of action.
In the light of the decision in Egbe v. Alhaji (supra), it would no longer be necessary discussing or considering the decision of the Court of Appeal in Abubakar v. Gov. Gombe State (supra) as this court does not form the habit of engaging itself in an academic exercise. See Bhojwani v. Bhojwani 1996 6 NWLR (Pt. 457) at 661; Oyeneye v. Odugbesan 1972 4 SC P. 244; R.O. Nkwocha v. Gov. of Anambra State (1984) 1 SCNLR 634; (1984) 6 SC at 362; Bakare v. A.C.B. Ltd. (1986) 3 NWLR (Pt. 26) at 47; Alhaji Aliyu Ibrahim v. Judicial Service Commission Kaduna State & Anor. (1998) 14 NWLR (Pt.584) 1; (1998) 12 SC p. 20 is a decision of the Supreme Court.
The main issue in that case was whether the Public officer; (Protection) Law Cap III Laws of Northern Nigeria 1963 applies to individuals, natural persons, or public officers. The Supreme Court examined the provisions of Section 2(a) of the Law (supra) and came to the conclusion that the law applies to actions against public officers or authorities.
I fail to see the relevance of this case, moreso as both sides in their briefs did not consider the issue as to whether the respondents were public officers. In fact, learned Counsel for the appellant conceded in his brief that the respondents were indeed public officers within the contemplation of the Public Officers (Protection) Law.
I noticed that learned Counsel for the appellant referred in his brief to the learned trial Judge in the third person pronoun, “She”. This is the height of discourtesy. Counsel should at all times refer to a Judge as learned trial Judge or learned Judge, or the Hon. Justice.
The learned trial Judge H. A. Olusiyi, J. was perfectly justified to dismiss the action.
This appeal lacks merit. The appellant who claims to have been unjustifiably removed as a member of the Okene Local Government Traditional Council by the respondents ought to have filed his suit against the respondents within three months as provided by Section 2(a) of the Public Officers (Protection) Law. Failure to file his suit within three months leaves him with no cause of action.
The appeal is accordingly dismissed and the decision of the High Court is hereby affirmed.
The respondents will have costs in this appeal fixed at N5,000.
I.T. MUHAMMAD, J.C.A.: My learned brother, O. Rhodes- Vivour, JCA, permitted me to read in draft, his leading Judgment. I am contented with the reasoning process and conclusions reached by my learned brother. I have nothing useful to add except to dismiss the appeal as lacking in merit. I abide by consequential orders made in the leading judgment, including order as to costs.
MARY.U. ODILI J.C.A.: I had the opportunity of reading the draft of the judgment of my learned brother, Olabode Rhodes – Vivour, JCA. I agree with his decision and the reasons on which he came by that decision. I dismiss the appeal and affirm the decision of the High Court. I award N5,000.00 costs to the respondent.
Tony Anyanwu, Esq. (with him, I. Adeniyi, Esq.)For Appellant
Fola Ajayi, EsqFor Respondent