GBAPO & ORS v. ABU-TURAB INVESTMENT LTD & ORS (2020)

GBAPO & ORS v. ABU-TURAB INVESTMENT LTD & ORS

(2020)LCN/14031(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, March 23, 2020

CA/A/881/2017

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Between

1. ALH. NDAZHITSU GBAPO 2. ALH. YANMA GBAPO (For Themselves And On Behalf Of Gbapo Community) 3. MALLAM ABDULKADIR MOHAMMED GIDIGI 4. MALLAM MOHAMMED NDAGI SALIHU GIDIGI (For Themselves And On Behalf Of Gidigi Community) 5. MALLAM SHIRU ALHASSAN DUTSU 6. MALLAM NDALUSA MOHAMMED DUTSU (For Themselves And On Behalf Of Dutsu Community) 7. IDRISU MOHAMMED TAYI 8. MUHAMMADU ABUBAKAR TAYI (For Themselves And On Behalf Of Tayi Community) APPELANT(S)

And

1. ABU-TURAB INVESTMENT LTD 2. UMARU A.A. KURE 3. GOVERNOR OF NIGER STATE 4. ATTORNEY GENERAL OF NIGER STATE 5. NIGER STATE GOVERNMENT 6. MINISTRY OF LAND, HOUSING SURVEY & TOWN PLANNING NIGER STATE. RESPONDENT(S)

RATIO

WHETHER OR NOT A PARTY IS ALLOWED TO FORMULATE MORE THAN ONE ISSUE FOR DETERMINATION FROM A GROUND OF APPEAL

It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating a single issue for determination. Thus, the Court clearly frowns at the proliferation of issues, whereby more than one issue is formulated from a single ground of appeal. See AMODU v. THE COMMANDANT, P. C, MAIDUGURI & ANOR [2009] 15 NWLR (PT.1163) 75 SC; NWANKWO v YAR’ADUA [2010] 12 NWLR (PT.1209) 518 SC; KALU v ODILI (1992) 2 SCNJ 76. PER ABOKI, J.C.A.

CIRCUMSTANCES WHERE THERE IS PROLIFERATION OF ISSUES

However, even where there is proliferation of issues the Court may re – formulate the issues or strike the proliferated issue out, depending on the circumstances of the matter. See the cases of: AGBETOBA V LSEC (1991) 4 NWLR (PT. 188) 664, 681 682. INTERNATIONAL LTD VS. KEINTERNATIONAL ENTERPRISES LTD (2010) 13 NWLR (PT. 1211) 270, 288 289. UNITED PARCEL SERVICE LTD V UFOT (2006) ALL FWLR (PT. 314) 337, 354,
ADEYEMI V STATE (2014) 13 NWLR (PT. 1423) 132, 152.
SALIM V CPC (2013) 6 NWLR (PT. 1351) 501, 516.
OKPONIPERE V STATE (2013) 10 NWLR (PT. 1363) 209, 220. PER ABOKI, J.C.A.

AN OMNIBUS GROUND OF APPEAL

An omnibus ground of appeal deals essentially with evaluation of evidence led before a trial Court. It always alleges that the decision of the trial Court is against the weight of evidence. The omnibus ground of appeal cannot be used to raise specific questions in an appeal. See the cases of;
AKINLAGUN & ORS vs. OSHOBOJA & ANOR (2006) LPELR 348 SC.
BHOJSONS PLC VS. DANIEL-KALIO (2006) 5 NWLR (PT. 973) 330. PER ABOKI, J.C.A.

LIMITATION OF ACTION

FACTOR TO BE CONSIDERED WHEN DEALING WITH LIMITATION STATUTE

It is the position of the Courts that it is always necessary when dealing with limitation statute as the one at hand, to ascertain the exact date on which the cause of action arose because time will start to run for the litigant, from the date the cause of action arose. see ADEKOYA VS. F.H.A (2000) 4 NWLR PT. 652 PG 215. Any purported action filed outside the period limited by the protection Act, runs riot and violent to such provision. The purported action becomes incompetent.
A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. In effect, it is the fact or combination of facts which give a right to sue and it consists of two elements to wit; the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and the consequent damage.
In ALIU BELLO & ORS V ATTORNEY GENERAL, OYO STATE (1986) 5 NWLR (pt. 45) 828, KARIBI – WHYTE, JSC at page 876 observed:-
“I think a cause of action is constituted by bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy being sought, Thus, the factual situation on which the Plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the Defendant, In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim.”
See also
TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 9 SC 1; THOMAS & ORS V OLUFOSOYE (1986) 1 NWLR (PTE18) 669;
MASS UND SEEGMBH V RIVWAY LINES LTD (1998) 4 SC 73 AT 79 -80;
SIFAX (NIG) LTD V MIGFO (NIG) LTD (2018) NWLR (PT 1623) 138 AT 183. PER ABOKI, J.C.A.

ABDU ABOKI, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the Ruling/Decision of the Niger State High Court of Justice holden at Bida (Herein after referred to as the trial Court), delivered on 6th December, 2017 by Musa B. Abdul J.

The Appellants were the Plaintiffs/Respondents at the trial Court while the Respondents were the Defendants/Applicants to the application.

The brief facts of the case leading to this appeal are as follows:
The Plaintiffs vide a writ of summons dated 31st day of August, 2017 and filed on the same day approached the trial Court seeking declaratory reliefs among other things, a declaration that the lease granted to the Nigerian Breweries Plc over Gbakogi farm land by the Niger State Government on 5-7-1985 and evidenced by a certificate of occupancy No. NGS 8286 has expired, a declaration that the issuance of a certificate of occupancy No. NGBD 525 to AbuTurab 1st Defendants without the consent of the original owners of the land is illegal, wrongful, null and void.

In reaction to the suit the 1st and 2nd Respondents as the 1st and 2nd Defendants/applicants filed a Notice of

preliminary objection on 04/10/2017 brought pursuant to Section 38 of the High Court Civil Procedure Rules of Niger State 2012, Section 6 (a) of the Statute of Limitation Law of Niger State, Section 2 (a) of the Public officers Protection Law and the Inherent Jurisdiction of the Court. The applicants pray the Court for the following orders;
1, “An order dismissing this suit as the Honourable Court lacks the Jurisdiction to entertain the suit,
2. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances. ”

The grounds of the said application areas can be found at page 2 of the record of appeal.

The preliminary objection is accompanied with a five paragraphs affidavit deposed to by one Sunday Bulus a litigation Secretary with Mohammed Ndayako and Coe, and a written address dated 2/10/2017. Learned counsel for the applicants placed reliance on all the averments contained in the affidavit in support of the application and urged the Court to uphold the 1st and 2nd Defendants’ preliminary objection.

On the other hand, in opposing the application, learned counsel for the Plaintiffs filed a six

paragraphs counter affidavit deposed to by one Mustapha Mohammed a Litigation Clerk in the Law Firm of the S. C. Ugbodu and Co., accompanied with a written address dated 17/10/2017. Learned counsel for the Plaintiffs/Respondents placed reliance on all the averments contained in the counter affidavit in opposition to the application and urged the Court to dismiss the applicants’ preliminary objection.

The trial Court in its ruling held inter alia as follows;
“…In the light of the above supreme Court decision, I find the preliminary objection of the learned counsel for the 1st and 2nd Defendants Hon. Mohammed Ndayako has merit and it is hereby sustained. The NSHC/BD/15/2017,..is hereby struck out, the action being statute barred.”

Dissatisfied with the above ruling the Appellants filed a notice of appeal containing three (3) grounds of appeal as can be found at pages 86 – 89 of the printed record.

In line with the extant Rules and practice of this Court, parties filed and exchanged their briefs of argument. Which were all adopted and relied on, at the hearing of this appeal.

In the Appellants’ brief of argument filed on the

17/1/2018 three issues were distilled for determination by this Court, to wit:
1. Whether the ruling of the lower Court was not given in total disregard of the exceptions to Section 2 (a) of the Public Officers Protection Law of Niger State?
2. Whether the lower Court was right in holding that the action of the Appellants filed on 31-8-2017 was Statute Barred?
3. Whether the decision of the lower Court in declining jurisdiction to hear this suit on its merit did not occasioned a Miscarriage of justice?

The 1st and 2nd Respondents in their joint brief of argument filed on the 29/03/2018, but deemed filed on 17/9/2018 raised a preliminary objection to the hearing of the appeal. See page 4-6 of the said brief of argument.

The 1st and 2nd Respondents also distilled a lone issue for determination of the appeal. The said issue is adumbrated as follows;
1. Whether having regards to the Limitation Laws of Niger State, the learned trial Court was wrong to have sustained the Preliminary Objection by holding that this suit is Statute Barred

While the 3rd to 6th Respondents in their joint brief of argument adopted the three issues for

determination as distilled by the Appellants.

I have earlier in this judgment said that the 1st and 2nd Respondents raised a preliminary objection to the hearing of this appeal. Therefore this Court will commence its deliberations with the said preliminary objection, because its success may have the effect of disposing of the appeal.

PRELIMINARY OBJECTION
The grounds of the preliminary objection are as follows;
“1. Grounds 1 and 2 in the notice of appeal are proliferated.
2, Ground 3 in the notice of appeal does not raise any complaint against the judgment of the Trial Court.
3. Issues for determination in the Appellants’ brief of argument dated and filed 16th January, 2018 and 17th January, 2018, respectively are not related to any ground of appeal”.

Learned counsel for the 1st and 2nd Respondent in arguing the preliminary objection, draw the Court’s attention to the Appellants’ Notice of appeal dated 16th January, 2018 and filed on the 17th January, 2018 to show that grounds 1 and 2 in the notice of appeal are proliferated and that ground 3 did not raise any complaint against the ruling of the trial Court dated 6th December, 2017.

He argued that ground one and two of the notice of appeal is raising the same complaint against the ruling of the trial Court, thus making the two grounds incompetent for proliferation. He referred the Court to the case of PHILLIPS VS. EBA ODAN COMMERCIAL & IND. CO. LTD (2013) 7 WRN AT 10-11.

He maintained that if more than one issue is formulated from one ground of appeal or a set of grounds of appeal, then it amounts to proliferation of issues and it is not allowed. He referred the Court to the case of SEKONI VS. UTC NIG. PLC (2006) 8 NWLR PT. 982 AT 298.

He contended that the three issues formulated by the Appellants are issues on the same statute of limitation, thereby making the issues, reputation of the other and therefore incompetent for proliferation.

Learned counsel added that issue three does not relate or flows from any of the three grounds of appeal and therefore also incompetent and liable to be struck out. He referred the Court to the cases of;
DREXEL NERGY AND NATURAL RESOURCES LTD & ORS. VS. TRANS INTERNATIONAL BANK LTD & ORS (2008) 18 NWLR PT. 1119 AT 424.
IBATOR VS. BARAKURO (2007) 9 NWLR PT. 1040 AT

AMADI VS. NNPC (2000) 6 SC PT. 1 66 AT 72.He insisted that the grounds of appeal in the Appellants’ notice of appeal and the issues formulated for determination are not competent on grounds of proliferation and issue three does not relate to the grounds of appeal. Thus this appeal is incompetent.
The Appellants on their part did not file a reply to the preliminary objection.

It is well settled that in drafting grounds of appeal and issues for determination counsel must at all times avoid proliferation of issues, and this happens when a multiplicity of issues are formulated from the same ground of appeal. See the cases of; AGBETOBA V. THE LAGOS STATE EXECUTIVE COUNCIL & ORS. (1991) 4 NWLR (PT.188) 664.
TRADE PLC. V. YISI (NIG.) LTD. (2006) 1 NWLR (PT. 960) P. 101.
It is pertinent for me here to reproduce the Appellants’ grounds of appeal without their particulars for ease of reference;
“GROUND ONE ERROR OF LAW
The learned trial judge erred fundamentally in law when he proceeded to hold that the writ of summons filed by the Appellants on 31-8-2017 was statute barred.
GROUND TWO MISDIRECTION LAW
The learned trial

judge misdirected himself in law when he proceeded to hold that the public officers’ protection law of Niger state is applicable in this circumstance of this case.
GROUND THREE
The decision as delivered by the learned trial judge on 6/12/2017 is against the weight of evidence”.
The 1st and 2nd Respondents’ counsel contended that since ground one and two of the Appellants’ notice of appeal are raising the same complaint against the ruling of the trial Court, and the three issues for determination formulated by the Appellants on page 6 of their brief of argument are issues bordering on same issue of statute of limitation, thereby making the three issues for determination essentially repetition of the other, all the three issues are incompetent for proliferation.
It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating a single issue for determination. Thus, the Court clearly frowns at the proliferation of issues, whereby more than one issue is formulated from a single ground of appeal. See

AMODU v. THE COMMANDANT, P. C, MAIDUGURI & ANOR [2009] 15 NWLR (PT.1163) 75 SC; NWANKWO v YAR’ADUA [2010] 12 NWLR (PT.1209) 518 SC;KALU v ODILI (1992) 2 SCNJ 76. In this regard, issues for determination should not out number grounds of appeal. In the instant case, it is my view that the Appellants have abided by the settled position of law. Here, it is observed that there are three grounds contained in the Notice of Appeal filed by the Appellants, and from the Appellants’ Brief, it is clear that three issues were formulated by counsel, issue one is distilled from ground 2, issue two is distilled from ground 1 and issue three is distilled from ground 3 (See pages 6, 10 & 11 of the Appellant brief of argument). This is usual and shall be condoned by this Court. The implication is that the issues formulated by the Appellants are competent and not caught by the proliferation rule.
However, even where there is proliferation of issues the Court may re – formulate the issues or strike the proliferated issue out, depending on the circumstances of the matter. See the cases of: AGBETOBA V LSEC (1991) 4 NWLR (PT. 188) 664, 681 682.

INTERNATIONAL LTD VS. KEINTERNATIONAL ENTERPRISES LTD (2010) 13 NWLR (PT. 1211) 270, 288 289. UNITED PARCEL SERVICE LTD V UFOT (2006) ALL FWLR (PT. 314) 337, 354,
ADEYEMI V STATE (2014) 13 NWLR (PT. 1423) 132, 152.
SALIM V CPC (2013) 6 NWLR (PT. 1351) 501, 516.
OKPONIPERE V STATE (2013) 10 NWLR (PT. 1363) 209, 220.

On the 1st and 2nd Respondents’ counsel contention that the Appellants’ issue three does not relate or flows from any of the three grounds of appeal filed by the Appellants, here it is important for me to reproduce the said Appellants’ issue three as follows; Whether the decision of the Lower Court in declining jurisdiction to hear this suit on its merit did not occasioned a miscarriage of justice?

The Appellants’ counsel distilled the above issue from the Appellants ground three of the notice of appeal. The said ground three which is an omnibus ground of appeal is as follows;
GROUND THREE
The decision as delivered by the learned trial judge on 6/12/2017 is against the weight of evidence”.

The term “Omnibus ground of appeal” implies that the judgment of a trial Court cannot be supported by the weight of evidence adduced

by the successful party or that the inference drawn or conclusion reached by the trial Court based on the accepted evidence cannot be justified.
An omnibus ground of appeal deals essentially with evaluation of evidence led before a trial Court. It always alleges that the decision of the trial Court is against the weight of evidence. The omnibus ground of appeal cannot be used to raise specific questions in an appeal. See the cases of;
AKINLAGUN & ORS vs. OSHOBOJA & ANOR (2006) LPELR 348 SC.
BHOJSONS PLC VS. DANIEL-KALIO (2006) 5 NWLR (PT. 973) 330.

I have carefully perused the entire argument of the Appellants under their issue three for determination, contrary to the 1st and 2nd Respondents’ contention, it is my view that the Appellants’ issue three relates to ground three of the Appellants notice of appeal filed. What the Appellants are contending under the issue is that the decision of the trial Court is perverse, there is no acceptable evidence to support the findings of the trial Court and that the judgment in favour of Respondents is against the totality of the evidence adduced before the trial Court.

In view of all the

above, there is no merit in this preliminary objection and it is hereby dismissed.

Now to the main appeal. The issues as distilled by the parties are similar. Therefore, the three issues for determination as distilled by the Appellant are adopted in the determination of this appeal. The three issues shall be taken together.

ISSUES 1, 2 & 3 TAKEN TOGETHER
Whether the ruling of the lower Court was not given in total disregard of the exceptions to Section 2 (a) of the Public Officers Protection Law of Niger State?

Whether the lower Court was right in holding that the action of the Appellants filed on 31-8-2017 was Statute Barred?

AND

Whether the decision of the lower Court in declining jurisdiction to hear this suit on its merit did not occasioned a Miscarriage of Justice?

Learned counsel reproduced Section 2 (a) of the Public Officers Protection Law of Niger State, which according to him stems from Public Officer Protection Act, CAP 41 LFN 2004 and submitted that it is the general rule as regard Pubic Officers Protection Act. He maintained that to every general rule there is always an exception and the public officers’

protection Law of Niger State also has its own exceptions.

He contended that the public officers protect Act or Law is not applicable on issue of land recovery. He referred the Court to the case of ENERGY MARINE & INDUSTRIES LTD VS. MINISTER OF THE FEDERAL CAPITAL TERRITORY & 1 OR. (2011) 14 WRN PG 174.

He argued that the case of the Appellants is undoubtedly a case of recovery of land.

The 2nd exception according to the learned counsel is where the act complained of is not in line with the law or without legal justification.

He argued that the action of Late Engr. A.A. Kure using his office as the then Governor of Niger State to grant to his company the 1st Respondent land vide certificate of occupancy No. NGBD 525, while the right granted to the Nigerian breweries vide C of O No. NGS 8286 was still subsisting is an act done contrary to law and without any legal justification. He referred the Court to Section 1 of the Land Use Act, 1978 LFN 1990 and the case of NATIONAL REVENUE MOBILISATION ALLOCATION AND FISCAL COMMISSION & 3 ORS. VS. AJIBOLA JOHNSON (2007) 49 WRN PG 123.

The 3rd exception he submitted is where the

act was done without good faith or in bad faith and where the damage is continuous.

He contended that the act of Late Engr. A.A. Kure the then Governor of Niger State in converting the land vested upon him in trust for the people to himself was not an act done in good faith and therefore, he can be sued outside the limitation period. He referred the Court to the case of MR. R.A. OKOH VS. THE NIGERIAN NAVY & 2 ORS (2007) 25 WRN PG 46.

Learned counsel for the Appellants referred the Court to Sections 6 and 7 of the Limitation Law of Niger state and argued that the right of action accrued to the Appellants on 6/5/2015 about two years from the date the suit was commenced at the trial Court and not in 2007 given the fact that the right granted vide C of O No. NGS. 8286 was still subsisting and is to expire on 5/7/2015. He contended that the Appellant had no cause of action as at 26-52007. He referred the Court to the case of SAIDU NDA MALIKI VS. MICHAEL IMODU INSTITUTE FOR LABOUR STUDIES (2009) 21 WRN PG 35.

He contended that the refusal of the trial Court to hear the Appellants’ suit on its merit is perverse and a miscarriage of justice. He

referred the Court to Section 36 (1) of the CFRN 1999 as amended, Sections 133 & 134 of the Evidence Act, 2011.

He argued that the trial Court has shut the door on the Appellants thereby denying them the opportunity to be heard, and this Court has the duty to correct the mistake made by the trial Court. He referred the Court to the case of MINI LODGE & 1 OR. VS. CHIEF OLUKA OLAKA NGEI & 1 OR. (2010) 10 WRN PG 58.

He insisted that the trial Court reached its decision and upheld the 1st and 2nd Respondents’ application in total disregard of the exceptions to Section 2 (a) of Public Officers Protection Law and the proviso to Section 6 and 7 of the Limitation Law of Niger state. He urged the Court to resolve these issues in favour of the Appellants.

The 1st and 2nd Respondents in their joint brief of argument submitted that the Appellants’ claim is caught up by Section 2 (a) of the Public Officers (Protection) Law, Cap 110 Laws of Niger State, and as such the trial Court was correct to have found and held that the suit is not competent before it.

He contended that one of the cruxes of the Appellants’ claim is challenging

the actions of officials of the Niger state government, done in the execution of their public duty and authority, carried out in May, 2007 by the issuance of the C of O No. NGBD 525 to the 1st Respondent in 2007 and prayed the Court to nullify the said title issued.

He maintained that the Certificate of Occupancy No. NGS 8286 was issued over 31 years before the commencement of this Suit and that the Appellants never challenged the provision of Clause 13 on the reversionary interest until 31/08/2017. Thus, he submitted that the Yd Respondent duly exercised its powers under the Land Use Act and clause 13 of the C of O No. NGS 8286 by issuance of the Certificate of Occupancy No. NGBD 5256 in 2007 which was not challenged until 31-08-2017.

Learned counsel argued that contrary to the Appellants’ contention, the Appellants’ claims before the trial Court did not include declaration of title or recovery of land and thus did not fall under the exceptions to Section 2 (a) of the Public Officers’ Protection Law of Niger State. He referred the Court to the Appellants’ statement of claim quoted at pages 77 to 79 of the record of appeal, and the case of

MALLAM ABDULFATAI AE AIYELABEGAN VS. LOCAL GOVERNMENT SERVICE KWARA STATE & 1 ORS (2009) 22 108 AT 117 – 118.

He added that the Appellants’ claim at the time of commencing the action was also caught by Section 6 and 7 of the Limitation Law of Niger State, and as such the suit is not competent as held by the trial Court.

He argued that once a suit is statute barred as the instant case, regardless of the stage or age of the case, the Court must not take any further steps in the case. He referred the Court to the case of ALFA AROWOSAYE VS. FELIX OLUWASSEGUN OGEDENGBE & 1 OR. (2009) 30 WRN 28 AT 39.

He submitted that the trial Court properly determined the issue of Limitation of Action in the instant case and came to the correct decision that the suit is statute barred. He referred the Court to the cases of;
EGBE VS. ADEFARASIN (1985) 1 NWLR PT. 3 AT 568-569.
AROWOSAYE VS. OGEDENGBE (2009) WRN PG 15.

He maintained that issue three formulated and argued by the Appellants in their brief of argument are arguments at large in that they did not address the issues of statute of limitation raised at the trial Court. He

referred the Court to the case of NBC PLC VS. UBANI (2014) 4 NWLR PT. 1398 421 AT 467.

He urged the Court to hold that the trial Court was correct to have sustained the 1st and 2nd Respondents’ preliminary objection by holding that this suit is statute barred.

The 3rd 4th 5th and 6th Respondents counsel in their joint brief of argument submitted that the judgment of the trial Court appealed against is in respect of recovery of land and not declaration of title to land, which is among the cause of action exempted from the operation of Section 2 of the Public Officers’ Protection Law.

He argued that contrary to the Appellants’ contention, the Public Officers Protection Law of Niger state which is in pari material with Section 21 of the Limitation Law of Lagos State is applicable to action that borders on recovery of land. He referred the Court to the cases of;
CHARLES OLADEINDE WILLIAMS VS. MADAM OLAITAN WILLIAMS (2008) 10 NWLR PT. 1095 AT 371.
IBRAHIM SHUAIBU KASANDUBU & ANOR VS. ULTIMATE PETROLEUM LTD & ANOR (2007) 7 NWLR PTE 1086 AT 283.

He insisted that action for recovery of land as the instant case is not among the

suits exempted from the application of the public officers’ protection law.

Learned counsel contended that the trial Court was right in holding that the action of the Appellants filed on 31/8/2017 was statute barred. He referred the Court to the cases of;
AJAYI VS. ADEBIYI (2012) 11 NWLR PG. 137.
I.B.B. INDUSTRY LTD VS. MUTUNCI CO. NIG. LTD (2012) 6 NWLR PT. 1297 PG 487. ANUKWU VS. EZE (2012) 11 NWLR PG 5. PHCN VS. ALABI (2010) 5 NWLR PT. 1186 PG 65. NASIR VS. CIVIL SERVICE COMMISSION KANO STATE (2010) 6 NWLR PT. 1190 PG. 270.

He added that the decision of the trial Court in declining jurisdiction to hear the case did not occasion any miscarriage of justice, because a miscarriage of justice can only arise when a judicial conduct is a departure from the rule or unknown to judicial procedure, which is not the case here. He referred the Court to the case of;
AKPAN VS. FRN (2012) 1 NWLR PT. 1218 PG 403.
DANIEL & ANOR VS. AMOSUN & ORS (2009) ALL FWLR PTE 473 PG 1339. PLATEAU CONSTRUCTION LTD VS. STEPHEN AWAREN (2014) 6 WLR PT. 1404 AT 519.

He urged the Court to resolve these issues in favour of the

Respondents.

It is trite law that where a law prescribed a period for instituting an action, proceedings cannot be instituted after that period. Also, where an action is statute-barred, a 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 time laid down by the limitation law for instituting such an action had elapsed. See the cases of;
EKEOGU VS ALIRI (1991) 3 NWLR PT.179 258 SC.
EMIATOR VS NIGERIAN ARMY (1999) 12 NWLR PT631 362 SC.
Issues one and two faulted the decision of the trial Court for relying on the provision of the Public Officers Protection Laws of Niger state and Sections 6 and 7 of the Limitation Laws of Niger State which provides for the period of three months and ten years respectively to commence a suit against the Niger State Government officials for any act done in pursuance of execution or intended execution of any law or of any public duty or authority in respect of any alleged neglect or default in the execution of any such law, duty, or authority.
It is the position of the Courts that it is always necessary when dealing with

limitation statute as the one at hand, to ascertain the exact date on which the cause of action arose because time will start to run for the litigant, from the date the cause of action arose. see ADEKOYA VS. F.H.A (2000) 4 NWLR PT. 652 PG 215. Any purported action filed outside the period limited by the protection Act, runs riot and violent to such provision. The purported action becomes incompetent.
A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. In effect, it is the fact or combination of facts which give a right to sue and it consists of two elements to wit; the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and the consequent damage.
In ALIU BELLO & ORS V ATTORNEY GENERAL, OYO STATE (1986) 5 NWLR (pt. 45) 828, KARIBI – WHYTE, JSC at page 876 observed:-
“I think a cause of action is constituted by bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy being sought, Thus, the factual situation on which the Plaintiff relies to

support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the Defendant, In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim.”
See also
TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 9 SC 1; THOMAS & ORS V OLUFOSOYE (1986) 1 NWLR (PTE18) 669;
MASS UND SEEGMBH V RIVWAY LINES LTD (1998) 4 SC 73 AT 79 -80;
SIFAX (NIG) LTD V MIGFO (NIG) LTD (2018) NWLR (PT 1623) 138 AT 183.
Turning to the case at hand, the Appellants’ as plaintiff claimed before the trial Court among other things was that the 1st Respondent application for Certificate of Occupancy No. NGBD 525 and issuance of the same by the 5th Respondent without the knowledge and consent of the original owner of the land is wrongful, illegal, null and void; that the action of the 3rd Respondent in signing the Certificate of Occupancy No. NGBD 525 in 2007 before the expiration of the certificate of occupancy No. 8286 without the knowledge of the Appellants is wrong, illegal, null and void. These are the facts giving rise to this cause of action.

The point of divergence between the parties on this appeal is whether or not exceptions to Sections 2 (a) of the Public Officers Protection Laws applies, and whether or not the right of action accrued to the Appellants on 26-5-2007 as regards the application of statute of limitation.
It is also instructive to note that a Plaintiff’s right of action eventuates from the existence of a cause of action. Therefore, what a statute of limitation bars is an action not the cause of action. See SIFAX (NIG) LTD V MIGFO (NIG) LTD (SUPRA).
Learned Appellants’ counsel has strenuously argued that the present action fall within the exceptions to Section 2 (a) of the Public officers Protection Law of Niger State and that the cause of action accrued to the Appellants on 6-5-2015 about two years from the date the suit was commenced at the trial Court. The learned counsel for the 1st 2nd 3rd – 6th Respondents argued otherwise, contending that the exceptions to Section 2 (a) (supra) does not apply and the right of action accrued to the Appellants on 26-5-2007. The relevant provisions of Section 2 (a) of the Public Officers’ Protection Laws of Niger State

provides:-
“Where any action, prosecution or other proceeding is commenced against any person(s) 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, duty or authority, the following provisions shall have effect:-
a. The action prosecution or proceedings shall not lie or be instituted, unless it is commenced within three months next after the act neglect or default complained of, in case of a continuance damage or injury within three months next after ceasing thereof.”
In the case of ENERGY MARINE AND INDUSTRIAL LTD VS. MINISTER OF THE FEDERAL CAPITAL TERRITORY & 1 OR. (SUPRA) this Court held thus:-
“Even though Section 2 (a) of the Public Officers Protection Act stipulates that actions against public officers ought to be instituted within 3 months of the act, neglect or default complained of by an aggrieved Plaintiff, but there are some exceptions to that general position of law for example the law is not applicable in cases of recovery of land, breaches of contract and claims

for work and labour done…”
Learned counsel for the Appellants contended that the case of the Appellants is a case of recovery of land granted to the Nigerian Breweries on July 5th 1985 which expired on July, 5th 2015, and also the actions of the 3rd Respondent exercising the powers of the 5th Respondent as regard granting 40 years term to the 1st Respondent is an illegal act and contrary to the law. Hence, this case falls under the exceptions to the public officers’ protection law of Niger State.
Now can it be said that Section 2 (a) of the Public Officers’ Protection Law of Niger State is not applicable in the circumstances of this case? A careful perusal of the Plaintiffs/Appellants claims as exhibited in pages 1-2 of the 3rd to 6th Respondents’ brief of argument revealed that the Plaintiffs/Appellants claimed inter alia that the action the 1st and 2nd Respondents in signing and issuance of the certificate of occupancy No. 525 in 2007 to the 1st Respondent without their knowledge is illegal, they also seeks to protect their reversionary interest over the land in dispute. There is nowhere the appellants claim for the recovery of the land in dispute.

On the Appellants’ contention that the 3rd and 5th Respondents acted contrary to law and in bad faith when the issue a Certificate of Occupancy to the 1st Respondent, the burden is on the Appellants to establish that the 3rd Respondent has abused his position or he has acted with no semblance of legal justification. It is noteworthy that the 1st Respondent is a legal entity with powers to sue and be sued in its corporate name; the company is a different person from its directors and/or members. The 3rd Respondent acted in honest exercise of his responsibility and that in my view will not amount to bad faith or abuse of office. Therefore, contrary to the Appellants’ contention, Section 2(a) of the Public Officers’ Protection Law of Niger State is applicable in the circumstances of this case.
The provisions of Section 6 and 7 of the Limitation Law of Niger State also provides that No action shall be brought by any person to recover any land after the expiration of ten (10) years from the date on which the right of action accrued to him or if it first accrued to someone through whom he claims to that person.
In the instant case

the cause of action in my view arose to the Appellants on 26/5/2007 when the 3rd and 5th Respondents allegedly issued a Certificate of Occupancy No. 525 to the 1st Respondent, before the expiration of the Certificate of Occupancy No. 8286 granted to the Nigerian Breweries Plc, which the Appellants are challenging, over 10 years from the date this suit was commenced at the trial Court.
Therefore, by virtue ofSection 2 (a) of the Public Officers Protection Law of Niger State (Supra) and the Niger State Limitation Law the Appellants Suit filed on 31-9-2017 is statute barred.

In view of all the above, issues one and two in this appeal are resolved in favour of the Respondents.

Having resolved issues one and two in this appeal in favour of the Respondents, it would amount to an academic exercise for me to consider issue three.

There is no merit in this appeal and it is hereby dismissed. The decision of the trial Court is hereby affirmed.

There shall be no order as to costs.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother Abdu Aboki, J.C.A.

I am in agreement with his reasoning and conclusion that this appeal lacks merit. I do dismiss the appeal for the same reasons as ably presented in the lead judgment. I abide by the consequential orders made thereat.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

Sabastine C. Ugbogu For Appellant(s)

A.I. Lemu with O. S. Emejulu and A. Y Mundi for the 1st and 2nd Respondents. For Respondent(s)