HAMADU ALI AGENCIES LIMITED v. FIDELITY BANK PLC & ORS (2019)

HAMADU ALI AGENCIES LIMITED v. FIDELITY BANK PLC & ORS

(2019)LCN/13502(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of June, 2019

CA/L/302/2016

JUSTICES

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

TOBI EBIOWEI Justice of The Court of Appeal of Nigeria

Between

HAMADU ALI AGENCIES LIMITED Appellant(s)

AND

1. FIDELITY BANK PLC
2. THE REGISTRAR LAGOS STATE MAGISTRATES’ COURT YABA
3. MR. OLANREWAJU OLATUNJI
(MAGISTRATE COURT 8 EBUTE METTA)
4. SAMUEL D. ADEGBUYI
(DEPUTY COMMISSIONER OF POLICE)
5. LANRE SHITTU MOTORS NIGERIA LIMITED
6. ALHAJI OLANREWAJU SHITTU Respondent(s)

RATIO

THE LAW ON VAGUE GROUNDS OF APPEAL

The law on vague grounds of appeal is clear. Any ground of appeal that is vague is to be struck out. A vague ground of appeal is a ground of appeal that is couched in a very confusing manner which makes it difficult for any person particularly the Respondent to the appeal to understand what it is contending with on appeal. Couching of a ground of appeal is not a show off or a display of how eloquent or elegant a person can command the English language. That can be displayed in the brief but not in the grounds of appeal. The language in the ground of appeal must be simple, direct, clear, certain and precise so that no one is in doubt as to what aspect of the judgment is been challenged. No lawyer gains an additional point or respect from a court by couching the grounds of appeal in a way that is confusing or misleading. The Supreme Court in this regard made this point in CBN & Anor vs. Aite Okojie (2002) LPELR-836 (SC) Ogwuegbu, JSC in these words:
?I have no hesitation in agreeing with Mr. Okojie?s preliminary objection that the ground of appeal is vague. Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars are clearly irrelevant.?
In Aza & Anor vs Agbom & Ors (2015) LPELR 40484 (CA), this Court per Jombo-Ofo, JCA held:
?Now for a ground of appeal to qualify as vague in law it has to be couched in such a way as not to allow an easy appreciation and understanding of the message it is meant to convey. In the case of Oduah vs. F.R.N. (2012)11 NWLR (Pt. 1310) 76 at 95. paras. C-E; 97 para. D, this Court per Pemu, JCA defined a vague ground of appeal thus:
?Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars are clearly irrelevant. PER EBIOWEI, J.C.A.

WHETHER OR NOT THE PUBLIC OFFICERS PROTECTION LAW 2003 OF LAGOS STATE PROTECTS A PUBLIC OFFICER WHO ACTS WTHIN HIS LEGITIMATE DUTIES

The relevant provision is Section 2 of the Public Officers Protection Act 2010 which is in all force with Section 2 of the Public Officers Protection Law 2003 of Lagos State. It will not be out of place to reproduce the said provision. The provision reads thus: Apparently, the cause of action arose on the aforesaid two dates. Now what does the law say about actions against Public Officers? Section 2 of the Public Officers Protection Act, Laws of the Federation, 2010 provides as follows:
?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 us 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. PER EBIOWEI, J.C.A.

TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the combined ruling of the Lagos State High Court delivered on 7/12/2015 in suit No LD/253MJR/2014 by Animashun J. found in pages 339-348 of the records. The three processes upon which the ruling was based are the 2nd & 3rd Respondents? preliminary objection dated 27/4/2015, the 5th & 6th Respondents? preliminary objection dated 6/7/2015 and the amended motion on notice for certiorari dated 28/4/15. In the ruling the lower Court upheld the preliminary objections which are against the amended motion on notice for certiorari and naturally dismissed the amended motion on notice for certiorari. At page 10 of the judgment found in page 348 of the records, the lower Court held:
.In view of the above, I hold that the claims are caught by Section 2 of the Public Officers? Protection Law (supra) and are therefore unenforceable. The two preliminary objections are therefore upheld. The amended motion on notice dated 28th day of April, 2015 is hereby dismissed.?

The Applicant in the lower Court

dissatisfied with the ruling appealed to this Court. The notice of appeal of the Applicant, now the Appellant, found in pages 349-452 of the records, contained 3 grounds of appeal. From the grounds of appeal, the Appellant in her brief raised 3 issues for determination before this Court. These are:
?Ground 1
The learned trial judge in the combined Ruling of Court dated 7th December, 2015, on the 2nd and 3rd Respondents? Preliminary Objection, 5th and 6th Respondents? Notice of Preliminary Objection as well as Appellant?s Motion on Notice for Judicial Review at the trial Court fell into grave error of law when the honourable trial Judge held that the Appellant?s Claim is caught by the public officers protection law and has become statute barred without satisfying itself that the acts of the Respondents especially the subject Bankers Orders have been brought to the notice of the Appellant.
Ground 2
The Learned trial judge in the final judgment of Court dated 7th December 2015 dismissing the Appellants Motion on Notice for not accompanying its Amended Motion on Notice for Certiorari with a fresh affidavit from

that filed at the time of filing the Motion Ex Parte for leave to Appeal.
Ground 3
The Judgment is against the weight of evidence.”

Learned counsel for the Appellant is Chidi Okoroji Esq., who settled the brief and adopted same on 8/4/19. In addressing issue 1, it is the submission of counsel that Section 2 of the Public Officers Protection Law does not apply as the 3rd Respondent in making the Banker?s order acted outside its jurisdiction and also on the ground that the period within which the Appellant became aware of the order and when the action was filed falls within the three months period stipulated by the Public Officer Protection Law. The cause of action therefore takes effect from November 2014 when the Appellant came to know about the order. It is his firm position that time will begin to run from when the Appellant came to know about the order. It is counsel?s submission that the fact of the existence of the order was concealed from her. Counsel on this issue generally referred to Ajayi vs. Adebiyi (2012) All FWLR (Pt. 634) 1; Fadare vs. A. G. Oyo State (1982) NSCC 52; Turburville & Anor vs. West Ham Corporation

(1950) 2 K.B.D 208; Administrator/Executors of the Estate of Late Abacha vs. Eke Spiff (2003) 1 NWLR (Pt. 800) 114; Ajibona vs. Kolawole (1996) 10 NWLR (Pt. 467) 22; A.G. Rivers State vs. A.G. of Bayelsa State & Anor (2013) 3 NWLR (Pt. 1340) 123; Dr. Mathias Oko Offoboche vs. Ogoja Local Government & Anor.

On this issue, it is his final submission that the bankers? order should be quashed as it is outside the statutory and constitutional duty of the 3rd Respondent. He urged Court to resolve this issue in favour of the Appellant.

On the second issue, learned counsel relying on Order 46 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 2012 submitted that the affidavit used to obtain the leave to bring the motion for certiorari can be used as affidavit in support for the motion on notice. The third issue is whether the lower Court was right to have dismissed the amended motion for an order of certiorari. Counsel went on an excursion on when and how an order of certiorari can be made. After stating the law, counsel submitted that the lower Court was in error to have dismissed the order for certiorari relying

heavily on Onagoruwa vs. IGP (1991) 5 NWLR (Pt. 193) 593; Ezenwa vs. Bestway Electronics & Ors (1999) 8 NWLR (Pt. 613) 61; Ogundoyin vs. Adeyemi (2001) 13 NWLR (Pt. 730) 403. It is counsel?s submission that since the process was not served within the time frame since Appellant was not heard, the Appellant was denied fair hearing. Counsel relied on Alamona vs. Bida (2000) 8 NWLR (Pt. 668) 186; Newswatch Communication Ltd vs. Atta (2006) 12 NWLR (Pt. 993) 144; Emuakpor vs Ukavbe & Ors (1975) 12 SC 41; Dr. N.E. Okoye & Anor vs. Centre Point Merchant Bank Ltd (2008) 7-12 SC 1. This submission is predicated on the premise that the 3rd Respondent had no case before it on the subject and therefore had no competence to make the Bankers? order. It is counsel?s further submission that this Court should allow the appeal.

The 1st-4th Respondents did not file any brief. The 5th & 6th Respondents filed a joint brief. This brief was settled by A.A. Isiolaotan Esq., he raised a preliminary objection to ground 2 of the notice of appeal on the ground that the ground of appeal is vague. He argued this in paragraphs 3.0.0-3.0.6 of the brief

in urging this Court to strike out the ground 2 of the appeal on the ground that it is vague. Counsel referred to Chief Oladapo Akinde vs. Rapheal Ogundirahun (2013) LPELR-21956 (CA); Bhojsons Plc vs. Daniel- Kalio (2006) 5 NWLR (Pt. 973) 330; Central Bank of Nigeria & Anor vs. Aite Okojie & Ors (2002) LPELR-836 (SC); Mary Joseph Isonguyo vs. Efiokanwan Archibong Eyo & Anor (2016) LPELR-41206 (CA); Agbaka vs. Amadi (1998)11 NWLR (Pt. 572) 16; Akpan vs. Effiong (2010) 17 NWLR (Pt. 1223) 421 (SC). Learned counsel to the 5th & 6th Respondents also raised 3 issues for determination in the brief filed on 16/4/18 but deemed on 8/4/19. They are similar to those raised by the Appellant. For completeness, I will reproduce the issues raised by the 5th & 6th Respondents.
1. With the state of the law, whether the Amended Motion on Notice dated the 28th day of April, 2015 in the form it was filed was not bereft of requisite affidavit evidence to ground the claims of the Appellant.
This issue relates to ground two of the appeal.
2. Whether the Appellant presented all relevant facts before the lower Court to warrant favourable exercise of

discretionary power of the Court in her favour regarding the Amended Motion on Notice of the 28th of April 2015.
This issue relates to ground three of the appeal.
3. Whether the cause of the Appellant as ventilated by the Amended Motion on Notice of the 28th of April, 2015 was not statute barred which robbed the High Court the requisite jurisdiction to entertain same.
This issue relates to ground one of the appeal.

On the first issue raised by the 5th & 6th Respondents, counsel submitted that the motion is incompetent as there was no affidavit attached to it as required by law. It is counsel?s submission that the Appellant cannot use the affidavit that secured the leave to support the amended motion on notice. He referred to Alhaji Saka Opobiyi & Anor vs. Layiwola Muniru (2011) LPELR-8232 (SC); Williams vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; Reg. Trustees of Ugborodo Community Trust & Ors vs. Ojogor & Ors (2014) LPELR-23333 (CA). It is counsel?s submission that at the time the motion was filed there was no affidavit in support therefore the motion is incompetent referring to Onyemaizu vs. Ojiako ?

(2010) LPELR 2738; CCB Plc vs. Masterpiece Chemicals Ltd (2001) FWLR 1423 @ 1439; Aladeusi vs. Dangana (1975) NNLR 190 @ 192-194; Abubakar vs. Omoruyi (1973) NNLR 48; Free Enterprises (Nig.) Ltd vs. Gtosa (1998) 1 NWLR (Pt. 532) 1 @v19; CBN vs. Man Export SA (1987)1 NWLR (Pt. 47) 86.

On the merit of the application, counsel is emphatic in submitting that the procedure of coming by way of an amended motion on notice is unknown to law as there is no provision for amended motion on notice by any law. He urged Court to resolve that issue in favour of the 5th & 6th Respondents. On his issue 2, it is the submission of counsel that the 3rd Respondent had the right in law to make the Bankers? Order and whether the decision is right or wrong is not an action that can come by way of judicial review. He referred to Onyekwuluje vs. Benue State Govt. (2005) 8 NWLR (pt 928) 614 @ 641; Queen vs. The Minister of Local Government, Exparte The Akalako of Afo (1959) WNLR 294. It is counsel?s firm submission finally on this point that the Appellant did not put material facts before this Court that warrant the lower Court granting the order of

certiorari and therefore the issue should be resolved in favour of the Respondents. He referred to General Zamani Lekwot (RTD) & Ors vs. Judicial Tribunal on Civil & Communal Disturbance in Kaduna State & Anor (1997) 8 NWLR (Pt. 515) 22.

On issue 3, the final issue, counsel submitted after referring to Section 2 of the Public Officers Protection Act that the action is statute barred as it was initiated after 15 months. He referred to Nwaogwugwu vs. President of the Federal Republic of Nigeria & Ors (2007) 6 NWLR (pt 1030) 237 @ 274-275; Ibrahim vs. Judicial Service Commission, Kaduna State (1998) 14 NWLR (Pt. 584) 1; Alhaji (Dr.) Ado Ibrahim vs. Alhaji Maigida Lawal & Ors (2015) LPELR-24736 (SC). Counsel urged this Court to dismiss the appeal. The Appellant filed a reply on 30/1/19 and was deemed on 8/4/19 and in it counsel submitted that ground 2 is not a vague ground of appeal. The other submissions in the reply were re-argument of the appeal which is not allowing the law.
?
Before I address the issues, I will need to look at the preliminary objection raised and argued by the 5th & 6th Respondents in their brief specifically

in paragraphs 3.01-3.06. The law on vague grounds of appeal is clear. Any ground of appeal that is vague is to be struck out. A vague ground of appeal is a ground of appeal that is couched in a very confusing manner which makes it difficult for any person particularly the Respondent to the appeal to understand what it is contending with on appeal. Couching of a ground of appeal is not a show off or a display of how eloquent or elegant a person can command the English language. That can be displayed in the brief but not in the grounds of appeal. The language in the ground of appeal must be simple, direct, clear, certain and precise so that no one is in doubt as to what aspect of the judgment is been challenged. No lawyer gains an additional point or respect from a court by couching the grounds of appeal in a way that is confusing or misleading. The Supreme Court in this regard made this point in CBN & Anor vs. Aite Okojie (2002) LPELR-836 (SC) Ogwuegbu, JSC in these words:
?I have no hesitation in agreeing with Mr. Okojie?s preliminary objection that the ground of appeal is vague. Vagueness of a ground of appeal may arise where it is

couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars are clearly irrelevant.?
In Aza & Anor vs Agbom & Ors (2015) LPELR 40484 (CA), this Court per Jombo-Ofo, JCA held:
?Now for a ground of appeal to qualify as vague in law it has to be couched in such a way as not to allow an easy appreciation and understanding of the message it is meant to convey. In the case of Oduah vs. F.R.N. (2012)11 NWLR (Pt. 1310) 76 at 95. paras. C-E; 97 para. D, this Court per Pemu, JCA defined a vague ground of appeal thus:
?Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the

particulars are clearly irrelevant.?
The apex Court similarly in Lagga vs. Sarhuna (2008) 16 NWLR (Pt. 1114) 427, the Court held per Muhammad, JSC:
?A vague ground of appeal is that which is imprecise, not cogent, not concise. It is inaccurate, verbose, large, rigmarole, vague, which is capable of making the appeal Court or the respondent to the appeal not to understand what it exactly connotes. Although Order 8 Rule 2 (3) and (4) of the Supreme Court Rules require a ground of appeal to be precise and accurate, that does not mean that any slight non-compliance thereof shall render the ground incompetent. The whole purpose of a ground of appeal is to give sufficient notice and information to the respondent of the precise nature of the appellant’s complaint against the judgment appealed against. All the rules relating to formulation or drafting of grounds of appeal are primarily designed to ensure fairness to the other side. No Court should rely on mere technicalities to shut out an intending appellant. That is the practice. See: Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253; Hambe v. Hueze (2001) 4 NWLR (Pt. 703) 372.?

The apex Court went on in the above case to determine what will amount to a vague ground of appeal. The Court held:
?A ground of appeal is vague if it is allusive, ambiguous, broad, debatable, disputable, evasive and inexact. A ground of appeal which is precise, concise, exact and unequivocal cannot be said to be vague. A ground of appeal which clearly complains about the decision of the Court in terms of live issues cannot be said to be vague; but one which complains about matters peripheral to the live issues are.?
Once a Court is confronted with a vague ground of appeal, the decision will be to strike out that ground of appeal, the Supreme Court made this clear in Saraki vs. Kotoye (1990) 6 SC 1 when it held:
?If the ground had been vague and without the nature and particulars of the error, it would have been liable to be struck out and I would not have hesitated to strike it out as there are a series of judicial authorities in support of such course of action. See: Ayinla v. Adigun (1986)3 N.W.L.R. (Pt.30) 511 Anyaoke v. Adi (1986) 3 N.W.L.R (Pt. 31) 731.?
The issue now is not really what amounts to vague ground of

appeal and the effect thereof. The issue is whether the ground 2 is a vague ground of appeal. It is my firm opinion that though the said ground could have been couched more elegantly but I do not think the ground of appeal is vague. I therefore have no difficulty in holding that the preliminary objection of the 5th & 6th Respondents fails and it is hereby dismissed.

On the issues for determination, I will rather formulate my own issues for determination. The law allows a Court to formulate its own issues for determination provided the issues are formulated based on the grounds of appeal. See Adeogun & Ors. vs. Fashogbon & Ors. (2008) LPELR-131 (SC). This Court formulates the following issues for determination;
1. Whether Section 2 of the Public Officers Protection Act 2010 is applicable and therefore subsequently making the Appellant?s claim statute barred.
2. Whether the Amended motion on notice filed on 28/4/15 is competent before the lower Court.
3. Whether the Court was right in the light of the evidence before it to dismiss the application for an order of certiorari.
?
The parties in their briefs have held different

positions on issue 1. The Appellant is of the view that Section 2 of the Public Officers Act 2010 is not applicable because the 3rd Respondent acted outside jurisdiction and that even if it is applicable it would not apply to this case because the cause of action arose in November, 2014 while the action was filed in December, 2014. The time the cause of action arose was when the Appellant got notice or became aware of the order. The 5th & 6th Respondents are of the view that the section of the Public Officers Act is applicable as the action was filed 15 months after the bankers? order was made. Both of them cannot be right as this is practically impossible as their views are completely opposite. There is no meeting point. The question then is, what is the legal position? The best place to start is looking at the provision of the law and the case law on the point. The relevant provision is Section 2 of the Public Officers Protection Act 2010 which is in all force with Section 2 of the Public Officers Protection Law 2003 of Lagos State. It will not be out of place to reproduce the said provision. The provision reads thus:

?Apparently, the cause of action arose on the aforesaid two dates. Now what does the law say about actions against Public Officers? Section 2 of the Public Officers Protection Act, Laws of the Federation, 2010 provides as follows:
?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 us 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 JSC (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. Ahiri (1991) 3 NWLR (Pt. 179) 258 .?
The Supreme Court per Mary Odili, JSC inA.G. Adamawa & Ors vs. A.G. Federation (2014) LPELR-2322 (SC) at 32-33 held thus:
?Indeed, the Court per Onnoghen, JSC, 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, 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 period within which an action can be commenced against a person covered by the saidSection 2 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 all over for such an action. See

Elukpo 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).
Parties ought to be alive to their responsibility once they perceive that a cause of action has risen as delay could be dangerous. A Court will not be sympathetic to a person who commences his action after the statutory period he is supposed to have commenced the action has expired. This is because Court?s decisions are not based on emotion or sentiment. See Suleman vs. COP, Plateau State (2008) 8 NWLR (Pt. 1089) 298. The cause of action in the case is the reason why the party came to Court. The 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 commences the action was actually wrong. 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 the cause of action will not be out of place. In Nworika vs. Ononeze-Madu & Ors (2019) LPELR-46521 (SC) Bage, JSC 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. & ANORS. 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, JSC 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 & Ors (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 in this appeal is therefore whether the lower Court was right in upholding the preliminary objection of the Respondents and whether the Court was right in dismissing the amended motion on notice for an order of certiorari. The major question now is when did this cause of action arise and whether the action was commenced within the period allowed by law. It is not in dispute that the 2nd – 4th Respondents are Public Officers and so the law applies to them. It is not in dispute that the bankers? orders were issued on 25/3/13 and 5/12/13. Also not in dispute is that the action was filed on 29/12/14 and the exparte was granted on 4/3/15. On the face of it, the action was filed over a year against the 2nd – 4th who are public officers from when the order was made. This clearly means that the action is statute barred as it relates to them as it was instituted well over 3 months when the cause of action arose.

The Appellant however introduced what may or may not be a game changer. It

is the fact that according to him, time will not run against a person who did not know of the existence of the cause of action. It is his firm view that the cause of action only begins to count from when the Appellant knew of the Bankers? order. The law on computation of time is settled. Time will begin to run from when the cause of action arose and this is said to be when the wrong complained of happened. In Muomah vs. Spring Bank Plc (2009) 3 NWLR (Pt. 1129) 553, this Court held:
?In AMODU VS AJIBOYE (2000) 14 N.W.L.R. (pt. 686) 15 at 26 paras A-B the Court commenting on the moment when time begins to run for purpose of limitation law held thus:
?The period of limitation in respect of any case runs from the date the cause of action accrued. To determine the date of the cause of action, one has to look at the writ of summons and the averments in the statement of claim and the evidence adduced in Court in order to find out when the wrong which gave the plaintiff right to the cause of action arose.? Similar views were also expressed by my learned brother Akintan JCA in N.P.A. VS AJOBI (supra) where the learned Jurist observed

that: ‘The period for hearing an action under a limitation law begins from the date that an action could have been taken and the limitation period begins to run from the moment the cause of action arose.” See also SOLOMON VS AFRICAN STEAMSHIP CO (1929) 9 NLR; KONEY VS U.T.C. LTD (1934) 2 W.A.C.A. 188; UTIH vs. EGORR (1990) 5 NWLR (pt. 153) 771.? See Eboigbe vs. NNPC (1994) 5 NWLR (Pt. 347) 649.
The law is also clear that when there is a person to sue and another to be sued with all the facts, then a cause of action exist. In Bannuram & Ors vs. Hillary & Anor (2013) LPELR-20854 (CA), it was held:
?For purposes of the application of the Public Officers (protection) Law or Act which is a statute of limitation, time starts to run from when the cause of action accrued and a cause of action accrues from the date the factual incident giving rise to the institution of the action, proceedings or prosecution arose. Furthermore, in determining the limitation of action, the pertinent question to ask is when time begins to run and time begins to run when there is party who can sue and another party to be sued and all the factual situations to

warrant the institution of the action have occurred and which must be proved by the Plaintiff in order to succeed in his claim. See N.I.I.A. vs. Ayanfalu (2007) 2NWLR (Pt. 1018) 246; Lasisi Fadare vs A. G. Oyo State (1982) 4 S.C. 1; Humbe vs. A. G. Benue State (2006) 3 NWLR (pt. 649) 419 and Board of Trade V. Gayzer Lime Co. Ltd. (1927) A. C. 610. See further per Oputa JSC, in Fred Egbe vs. The Hon. Justice J. A. Adefarasin (1987) 1 SC 1 at 36 – 37 who held that:-
?A cause of action is said to be statute barred if in respect of it, proceeding 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 simple – 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.” See Savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping and Transport Agencies Ltd & Anor ?

(1987) 1 SC 198 at 312 -313? See Hassan vs. Aliyu (supra).
From the record, it is clear that the Appellant did not know of the Bankers? Order made in December 2013 until November 2014. While it is true that the cause of action arose in December 2013, is there a person to sue at that time when there is no knowledge of the existence of that fact or when there is no constructive knowledge of that fact. I do not think so. For there to be a person to sue, the person must have knowledge of the wrong either expressly or constructively. It will appear to me that it will be unfair to expect a person to sue another when he does not know of the existence of the wrong. To buttress this point, I will look at the Supreme Court case of Yare vs. National Salaries Wages and Income Commission (2013) 12 NWLR (pt 1367 ) 173 where the apex Court held:
?In SAMSON OWIE vs. SOLOMON IGHIWI (2005) 5 NWLR (PART 917) 184 this Court held per Onu, JSC, that:
?the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin to maintain his cause of

action.? The Appellant knew his fate with the Respondent when he got the letter of compulsory Retirement dated the 9th December, 1999. Any argument to the contrary is untenable and does not represent the true position of the law. In that case Owie vs. Ighiwi (Supra) Onu, JSC went further to say that: ?Time therefore begins to run where there is in existence a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed.? See also FADARE & ORS v. A.G. OYO STATE (1982) 13 NSCC 52 at 60; ADIMORA V. AJUFO (1988) NWLR (PART 80) 1; 1988 1 NSCC 1005 at 1008; BOARD OF TRADE V. CAYNER IRVINE AND CO. LTD. (1927) A.C. 610.?
This Court in Bukar vs. Hon. Minister, Federal Ministry of Health & Anor (2018) LPELR-45381(CA) per Abiru, JCA held:
?The period of time prescribed by a statute of limitation begins to run the moment a cause of action accrues to the person entitled to it. Thus, when dealing with a limitation statute, it is of utmost importance to ascertain the exact date of accrual of a cause of action.
A cause of

action consists of every fact which would be necessary for a claimant to prove, if traversed, in order to support his right to judgment. It is the bundle or aggregate of facts which the law recognizes as giving the claimant a substantive right to make a claim for the relief or remedy being sought. It is every fact which is material to be proved to entitle the claimant to succeed or all those things necessary to give a right to relief in law or equity – Ogoh vs. ENPEE Industries Ltd (2004) 17 NWLR (Pt. 903) 449, Williams Vs Williams (2008) 10 NWLR (Pt. 1095) 364, Duzu vs. Yunusa (2010) 10 NWLR (Pt. 1201) 80 and Nigerian Ports Authority Vs Beecham Pharmaceutical PTE Ltd (2012) 18 NWLR (Pt 1333) 454.
It consists of two elements, namely: (i) the wrongful act of the defendant which gives the claimant his cause of complaint; and (ii) the consequent damage – Savage vs. Uwechia (1972) 2 SC 213, Adeosun vs. Jibesin (2001) 11 NWLR (Pt. 734) 290, National Electric Power Authority vs. Olagunju (2005) 3 NWLR (pt. 913) 602, Bakare vs. Nigerian Railway Corporation (2007) 17 NWLR (Pt. 1064) 606. A cause of action accrues when the cause of action becomes complete so that

an aggrieved party can begin and maintain an action – Mobil Oil (Nig.) PIc vs. Malumfashi (1995) 7 NWLR (pt. 406) 246, Adekoya vs. Federal Housing Authority (2008) 11 NWLR (pt. 1099) 539. In Adimora vs. Ajufo (1988) 3 NWLR (pt. 80) 1 at 17, Oputa, JSC, put the issue thus:
?In dealing with limitation of actions, one of the most fundamental questions to answer is: when did the cause of action accrue This crucial question is also the most difficult, as the answer will depend on the surrounding circumstances of each particular case. But may be a collateral question has to be answered first – what is meant by cause of action In its best definition, it consists of every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment …. When these facts have occurred and provided there are in existence a competent plaintiff and a competent defendant, a cause of action is said to accrue to the plaintiff because he can then prosecute an action effectively. Thus, accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his

action.?
The cause of action prosecuted by the Appellant in this case is his alleged wrongful dismissal from the service of the University of Maiduguri Teaching Hospital by the Respondents. Applying the above stated principles to the facts of this case as laid out in the lead judgment, it (sic) incontestable that this cause of action of the Appellant crystallized and became actionable upon his receipt of the letter of the Respondent dated the 13th of June, 2011, Exhibit D, and it was not in contest that the Appellant received the letter on the 14th of June, 2011. The Respondent informed the Appellant, in part, in the letter that:
…That you are summarily dismissed from the service of the University of Maiduguri Teaching Hospital. …?
The case of the Appellant was that after the receipt of the letter, he made oral and written requests, pleas and demands for the Respondents to re-consider their position and rescind his dismissal but that the Respondent refused to change its position and that the Respondent wrote him another letter dated the 27th of September, 2011, Exhibit E. The crucial point for consideration on this issue

for determination is what effect, if any, did the pleas, requests and demands of the Appellant and the contents of letter, Exhibit E, have on the running of time on the cause of action that crystallized in the Appellant in June 2011.
The principles on the running of time in limitation of action matters have been stated and restated by the Courts. In computing time when statute of limitation begins to run, the day the cause of action arose as a rule is excluded and the day of filing the action is included – Mkpedem vs. Udo (2000) 9 WLR (Pt. 673) 631, Adesule vs. Mayowa (2011) 13 NWLR (Pt. 1263) 135. The period of limitation begins to run from the date on which the cause of action accrued. It is immaterial that a party was absent from jurisdiction or that there was no Court within the jurisdiction to entertain the claim. Similarly, illiteracy will also not avail a plaintiff because ignorance of the law is no excuse – Aremo II vs. Adekanye (2000) 2 NWLR (Pt. 644) 257, UTA French Airlines Vs Williams (2000)14 NWLR (Pt. 687) 271, Akibu vs. Azeez (2003)5 NWLR (Pt. 814) 643.
Once a cause of action is complete, the issue of its suspension will not arise.

The fact that the claimant made subsequent pleas, protests and wrote letters to upturn the act that led to the cause of action does not affect the time of accrual of the cause of action. In fact, it is scraggy reasoning to hold on the belief that the appeals, petitions, pleas and protests of a plaintiff will have the effect of suspending the date of accrual of the cause of action – Humbe vs. Attorney General, Benue State (2000) NWLR (Pt 649) 419. The law does not, however, prohibit parties to a dispute from engaging in negotiation for the purpose of settling the dispute but, except where as a result there is what can be reasonably regarded as a settlement of a dispute or admission of liability on the part of the defendant, the limitation time continues to run despite the negotiation. The rationale for this is that parties cannot by conduct or consent add to or subtract from the contents of a statute – Union Bank of Nigeria PIc vs. Ozigi (1991) 2 NWLR (pt. 176) 677, Eboigbe vs. NNPC (1994) 5 NWLR (Pt. 347) 660, Adebanjo vs. Ogun State Sports Council (2005) 54 WRN 172, National Bank of Nigeria Ltd vs. Arison Trading & Engineering Co. Ltd (2006) 16 NWLR (pt.

1005) 210, Shell Petroleum Development Company of Nigeria Ltd vs. Ejebu (2011)17 NWLR (Pt. 1276) 324. Where there has been an admission of liability during negotiation and all that remains is the fulfillment of the agreement, the law is that the right of action is revived – Nwadiaro vs. Shell Petroleum Dev. Co. Nig. Ltd. (1990) 5 NWLR (Pt 150) 322, Nigeria Social Insurance Trust Fund Management Board vs. Klifco Nig. Ltd (2010) 13 NWLR (Pt. 1211) 307. Such admission of liability creates or establishes a fresh cause and revives a right of action which might have already become statute barred – Shell Petroleum Development Company of Nigeria Ltd vs. Ejebu supra. What all these mean in the instant case is that the oral and written requests, pleas and demands for the Respondent will only affect the running of time against the cause of action of the Appellant that crystallized in June 2011 if the Respondent’s letter, Exhibit E, was an admission of liability, an agreement to rescind the dismissal of the Appellant, but not otherwise. Now, an admission of liability must be in writing and signed by the party that is liable. It must be unconditional and unequivocal but it

is not required to give the exact specifics of the liability admitted. What will constitute an admission of liability to revive a right of action is a matter of fact depending on each case and it usually depends on the construction placed by the Court on the words used. In determining whether the words used constitute an admission of liability, the relevant question is what the words used by the party admitting liability mean – Thadani vs. National Bank of Nigeria (1972) 1 SC 105, Olaogun Enterprises Ltd vs. Saeby Jernstoberi & Anor (1992) 4 NWLR (Pt. 235) 361, Nigeria Social Insurance Trust Fund Management Board vs. Klifco Nig. Ltd supra, Shell Petroleum Development Company of Nigeria Ltd vs. Ejebu supra.
Exhbit E read thus:
“The Board of Management at its 30th meeting held on 22nd September, 2011 considered your appeal for reinstatement on the case of dismissal from the services of the University of Maiduguri Teaching Hospital, a decision which was taken at its 29th meeting held on 9th June, 2011 and resolved that your dismissal still stands.?
Reading through the contents of the letter, by no principle of interpretation, can they

be said to amount to an admission of liability or an agreement by the Respondent to rescind the dismissal of the Appellant. All that the Respondent did in Exhibit E was to reaffirm its position as contained in the earlier letter. Thus, Exhibit E did not serve to revive the cause of action of the Appellant and/or elongate the period of limitation; it did not in any way affect the running of the limitation period on the cause of action of the Appellant which crystallized in June 2011 Nigeria National Petroleum Corporation vs. AbdulRahman (2006)12 NWLR (Pt. 993) 202, Kasim vs. NNPC (2013) 10 NWLR (Pt. 1361) 46. The three month period within which the Appellant was to file his action elapsed on the 14th of September, 2011. The present action was not commenced until the 19th of December 2011. It was caught by the provisions of Section 2 (a) of the Public Officers Protection Act Cap 379, Laws of Federation of Nigeria 1990.?
In view of the unchallenged evidence that the Appellant never knew of the Bankers? Order until 4/12/14, the action is not statute barred since the action was filed on 29/12/14. In the circumstance I hold that the first issue is

resolved in favour of the Appellant.

Let me quickly say that even if I am wrong but the point must be made that only the 2nd-4th Respondent can enjoy the benefit of statute barred action under Section 2 of the Public Officer?s Act 2010 as they are the public officers. The 5th & 6th Respondent cannot enjoy the status of public officers and the whole action cannot be dismissed on that ground on account of the 2nd-4th Respondent except the action on the cause of action is only against those public officers.

The second issue is whether the Amended motion on notice filed by the Appellant is competent. The two reasons the 5th & 6th Respondents gave for their submission is that the Appellant did not file an affidavit in support of the motion but rather used the affidavit for the exparte application to support the motion in notice and further that the Appellant could not file an amended motion on notice. The general position of the law is that motions must be supported by affidavit otherwise the application will be bare and naked and therefore incompetent. See I.G.P. vs. Eze (2017) LPELR 429231 (CA); Registered Trustees of Ugborodo Community Trust & Ors vs. Ojogor

(2014) LPELR 2333(CA). In this regard the Supreme Court case of Opobiyi & Anor vs. Muniru (2011) 18 NWLR (pt 1278) 387 is instructive. The Supreme Court per Fabiyi, JSC held:
?It is apt that every motion must be supported by an affidavit and failure to file such an affidavit renders same bare and without support. Any decision arrived at, in such a circumstance, would have been rendered in vaccuo leading to the inescapable end result of arriving at abstract justice. See: Mobil Producing Nig. Unlimited vs. Monokpo (2003) 18 NWLR (Pt. 852) 346 and Chief of Air Staff vs. Iyen (2005) 6 NWLR (pt. 922) 496 at 546; both cited by the appellants? counsel.
The procedure in cases of judicial review is governed by Order 40 of the High Court of Lagos State (Civil Procedure) Rules 2012. The procedure which must be followed is clear. If the procedure is not followed, the application will be incompetent as the rules of Court are meant to be obeyed. See Asika & Ors. vs. Atuanya (2013) LPELR-20895 (SC). The relevant provisions are Order 40 Rules 3 (1)(2)(3)(4), 5 (1)(2)(5) and 6(1) of the High Court of Lagos State (Civil Procedure) Rules 2012.

The summary of the above provisions is that the Applicant for an order of certiorari will first obtain an exparte order. The exparte application must contain the Applicant?s statement pursuit to Order 40 Rule 3(2)(a) and Applicant?s verifying affidavit pursuant to Order 40 Rule 3(2)(b) of the Lagos State Rules. The Applicant will then file a written address. After this is granted, the Applicant is expected or required by law to file the motion on notice or an originating summon for the order of certiorari pursuant to Order 40 Rule 5(1).
It is the requirement of the law in line with Order 40 Rule 6(1) that the motion will be served along with the statement. The specific document which is mentioned that can be served with the motion on notice from the exparte is the statement. The provision did not state that the verifying affidavit from the exparte can be used in the motion on notice. The implication of this is that the verifying affidavit for the motion on notice must be sworn to for the purpose of the motion on notice and the verifying affidavit for the exparte cannot be used in the motion on notice. The law on

interpretation is that the specific mention of one thing is the exclusion of the other. See Commissioner for Local Government & Chieftaincy Affairs & Anor vs. Onakade (2016) LPELR-41133 (CA).
It is my view that it is intentional that the law makes provision for the statement alone to be served along with the motion on notice. This means, the verifying affidavit must be filed along with the motion on notice and it is not permitted that the Appellant can use the verifying affidavit in the motion exparte for this motion on notice. Another requirement as shown in Order 40 Rule 5 (5) is that the Applicant must file an affidavit giving the name and address of and place and date of service on all persons served with the motion on notice. The question now is whether the Appellant complied with the above procedure. If not, the motion will be incompetent and in the circumstance, it will be struck out. The motion on notice is found in pages 75-144 of the records. The verifying affidavit is filed along with the motion on notice. It is in pages 88-90 of the records. In the circumstance, I cannot seem to understand the submission that the motion on notice is

incompetent. The misconception arises from the fact that the general notion is that all motion must have a supporting affidavit. In my opinion the supporting affidavit in a motion of this sought for judicial review is the verifying affidavit. The purpose of verifying affidavit is to verify the facts in the statement. See Yahuza & Ors vs. Agu & Ors (2017) LPELR 44028. The lower Court in page 9 of the judgment which is in page 347 of the records held that, the verifying affidavit is not signed by the commissioner of oath and therefore it is incompetent. This I do not agree with as there is a stamp in the column for signature of the Commissioner for oath. The stamp is not just the stamp of the Court but rather has the name of the commissioner. This in my opinion is a good signature to indicate that the oath was taken before him. The Application for certiorari is not incompetent on that ground.
?
Learned Counsel to the 5th & 6th Respondents submitted that motions cannot be amended and therefore the application is incompetent. This position with due respect to counsel does not reflect the legal position. Order 40 Rule 6(2) of the High Court Rule

accepts that a motion can be amended which include the statement. To lay credence to this, this Court in Nwadiaro & Ors vs. President & Members of Customary Court Ossomala (2016) LPELR- 40925 (CA), Agim, JCA at page 16 drove home this point emphatically in these words:
?Motion on notice can be amended like any other process of Court. I do not agree with the submission of Learned counsel for the respondent that it can only be amended by substitution. It can be amended by insertions and alterations therein or by substituting it with a fresh motion.?
The Appellant was not breaching any law or rule of Court in amending the motion. I resolve this issue in favour of the Appellant.

The last issue is whether the lower Court was right to have dismissed the amended motion for an order of certiorari filed on 28/4/15 after obtaining the order exparte. The other way to look at this issue is, whether the dismissal was in line with the evidence before the Court. The order of certiorari is one of the ways of judicial review where a party can decide to bring an order by a Court against him before a Court higher in hierarchy for the purpose of

quashing such an order. This in simple terms is what the certiorari procedure is all about. The Magistrate Court in Yaba, Lagos signed a Bankers? Order affecting the money of the Appellant. The main criminal action was not before the 3rd Respondent, the Magistrate that granted the order. When the Appellant got knowledge of it, he decided to seek for this order for the High Court to quash that Bankers? Order. Unfortunately for him, the High Court did not see reason to do that. The lower Court dismissed the motion. He is before this Court to see whether this Court can grant him the certiorari order sought. The order will be granted if I hold that the lower Court acted outside its jurisdiction or that the decision is bad on the face of it. The apex Court per Ademola, JSC (as he then was) held in District Officer & Anor vs. Queen (1961) LPELR-25082 (SC) at page 9 held:
?In the opinion of this Court, certiorari will lie to the Tribunal if the Tribunal exceeds its jurisdiction, and equally if the tribunal gives a decision which the Court conceives to be bad on the face of the decision.?
In Olusola vs. Bello & Anor (2014)

LPELR-24417 (CA), this Court held:
?An order of certiorari being a prerogative writ to ensure that inferior Courts or anybody entrusted with performance of judicial or quasi judicial function keep within the limit of jurisdiction conferred on them by enabling statute that create them, to prevent injustice, correct errors of an inferior tribunal and quashes erroneous decisions.?
In Iteidu & Ors vs. Obi & Ors (2009) LPELR-8343 (CA) Kekere-Ekun, JCA (as he then was) at pages 23-24 held:
?The law is that the High Court has inherent jurisdiction over the proceedings of inferior Courts and Tribunals. The jurisdiction is exercised by way of judicial review of such proceedings, decisions and/or acts. Among the remedies available are the prerogative writs of certiorari and prohibition. The prerogative writ of certiorari is designed to check the excesses and arbitrary decisions of inferior Tribunals whereby the inferior Tribunal is compelled to bring up its records or proceedings to the superior Court for correction and/or for the purpose of being quashed where appropriate. See: Bamaiyi vs. Bamaiyi (2005) 15 NWLR (948) 334 @ 354

C – E; Ugoh vs. B.S.L.G.S (1995)3 NWLR (383) 288 @ 318 B – C; Oduwole vs. Famakinwa (1990)4 NWLR (143) 239 2 251 D – E. One of the grounds upon which an order of certiorari might be granted is that there is an error of law. Such error of law must be one on the face of the record, for example, a complaint of lack of jurisdiction. The superior Court has a duty to ensure not only that inferior Tribunals keep within jurisdiction but that they observe the law. It is also trite that in certiorari proceedings, the superior Court is not acting in an appellate capacity but in a supervisory capacity. See Bamaiyi vs. Bamaiyi (supra) @ 360 – 361 G – C. However once the superior Court has made a determination on an issue in the certiorari proceedings, the decision remains valid and subsisting until set aside by an appellate Court. There is no doubt that any party to litigation has a constitutional right of appeal against a decision by which he is aggrieved. However such appeal process must be used bona fide. Where the process is employed to the irritation and annoyance of the adverse party or where it impedes or obstructs the efficient and effective administration of

justice, a Court must act promptly to stop it. See: Kolawole vs. A.G. Oyo State (supra) at 74 D – E.? See also Lagos State Judicial Service Commission & Anor vs. Kaffo (2008) 17 NWLR (Pt. 1117) 525; Adegbenro & Anor vs. Akintilo & Ors (2010) 3 NWLR (Pt. 1182) 541.
The main question is whether the lower Court granted the Bankers? Order within jurisdiction and whether fair hearing was given to the Appellant. The 3rd Respondent order was not to freeze the account of the Appellant but rather it was for an order to inspect and take copies of ledger. This in my opinion is not outside the jurisdiction of the 3rd Respondent even if it is true that the matter was not before her. The case of Onagoruwa vs. I.G.P. (supra) does not really apply to this case as I hold that it is within the competence of the Magistrate to permit the police to inspect and take ledger of a customer for the purpose of investigation. The lower Court in the bankers? Order did not go beyond that and in the circumstance, the appropriate remedy is not to come for an order of certiorari. In the circumstance of the order made which is limited to inspection of

document it does not affect the fair hearing of the Appellant. I resolve this issue in favour of the Respondent.
The lower Court in its decision upheld the preliminary objections and dismissed the amended motion on notice. From the discussion of the issues above, it is clear that the action is not statute barred and the amended motion is not incompetent but I am unable to allow the certiorari order sought. Since the order granted was within the jurisdiction of the 3rd Respondent and no way was the Applicant denied fair hearing. The condition to grant the order has not been satisfied and so cannot be granted. This appeal therefore succeeds in part. For avoidance of doubt, the appeal succeeds only to the effect that the lower Court was wrong in holding that the Section 2 of the Public Officers? Protection Act 2010 is applicable to the case. This is because, the section is not applicable. On the other hand, the lower Court was right in dismissing the amended motion on Notice as the Appellant has not satisfied the condition to warrant granting an order for centrori.
Parties are to bear their own cost.

TOM SHAIBU YAKUBU. J.C.A.: I had the advantage of a preview of the judgment rendered on this appeal, by his Lordship, EBIOWEI TOBI, JCA.

I am satisfied with the meticulous resolutions of the Issues thrown up in the appeal, by my learned brother.

Unarguably, the cause of action in this matter arose in December, 2013 when the Bankers? Order was made. However, indisputably, the Appellant did not know nor was it made aware of the said Banker?s Order, until 4 December, 2014. It Is common sense, that it was only when the Appellant became aware of aforesaid Bankers? Order made in December, 2013, that it could take steps to challenge the said Order which was against its interests. That Is, it is from December, 2014 when the Appellant became aware of the Bankers? Order, that he could challenge it. Therefore, the cause of action became activated when the Appellant became aware of the vexed Bankers? Order, on 4th December, 2014 and it was from thence forward that time began to run against It, in bringing an action against the Respondents. This point was succinctly explained by the Supreme Court in Christiana I. Yare v. National Salaries, Wages and Income Commission ?

(2013) LPELR ? 20520(SC) @ PP. 25-26, Paras. D-B, per Alagoa, JSC, thus:
In SAMSON OWIE V SOLOMON IGHIWI (2005) 5 NWLR (Part 917) 184 this Court held per Onu, JSC, that “the accrual of a cause of action Is the event whereby a cause of action becomes complete so that the aggrieved party can begin to maintain his cause of action?. The Appellant knew his fate with the Respondent when he got the letter of compulsory retirement dated the 9th December, 1999. Any argument to the contrary is untenable and does not represent the true position of the law. In that case OWIE v. IGHIWI (Supra) Onu, JSC went further to say that:
? Time therefore begins to run where there is in existence a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed
See also FADARE & ORS v. A.G OYO STATE (1982) 13 NSCC 52 at 60; ADIMORA y. AJUFO (1988) 3 NWLR (PART 80) 1, 1988 1, NSCC 1005 at 1008; BOARD OF TRADE v. CAYNER IRVINE AND CO. LTD (1927) A.C. 610.?
On the facts and in the

circumstances of the Instant case, since the Appellant became aware of the Bankers? Order, only on the 4th December, 2014 and it filled its action on 29th December, 2014, it cannot be said that its action was statute barred, in contravention of Section 2(a) of the Public Officers (Protection) Law.

It is for these few comments and the more elaborate and lacid reasons, contained in lead judgment, that I too allow the appeal in part.
Each side to bear their own costs of the appeal.

TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading in draft the lead Judgment prepared and rendered in this appeal by my learned brother Ebiowei Tobi JCA; I am in agreement and do not have anything useful to add.

Appearances:

C. Okoroji, Esq.For Appellant(s)

A. A. Isiolaotan, Esq. for 5th & 6thFor Respondent(s)

Appearances

C. Okoroji, Esq.For Appellant

AND

A. A. Isiolaotan, Esq. for 5th & 6thFor Respondent