HON. MINISTER, FEDERAL CAPITAL TERRITORY & ANOR v. MONONIA HOTEL NIGERIA LIMITED & ANOR
(2010)LCN/4142(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of December, 2010
CA/A/28/2008
RATIO
RIGHT TO APPEAL: CLASSES OF THE RIGHT OF A PARTY TO APPEAL AGAINST THE DECISION OF A HIGH COURT; STATE, FEDERAL OR FCT TO THIS COURT UNDER THE 1999 CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA
Speaking generally, the right of a party to appeal against the decision of a High Court; State, Federal or FCT to this Court under the 1999 Constitution of FRN has been classified into two categories, i.e. an appeal as of right provided for under Section 241 (1)(a) and (b) and an appeal with leave of Court provided for under Section 242(1) of the Constitution. Under Section 242(1)(a) an appeal is as of right from the final decision of a High Court sitting at first instance and under Section 241(1)(b) where the ground of appeal involves questions of law alone, the appeal is as of right whether the decision was final or interlocutory. The appeal in these and the other situations set out in Section 241(1)(c)-(f) is as of right and so no leave of Court was required or necessary for bringing or filing it. See NWABUEZE v. NWORA (2005) ALL FWLR (272) 297, ADETONA v. EDET (2001) 3 NWLR (699) 186. Section 242(1) provides for other situations in which right of appeal is subjected to the leave of Court before it could properly be exercised. For our purpose here, an appeal against the interlocutory decision of a High Court involving mixed law and facts or facts alone to this Court would require the prior leave of either the High Court concerned or this court for it to be competently brought or filed. Leave of court in such a situation is a condition precedent to the validity of an appeal in this Court. See: AQUA LTD V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (91) 622; (1988) 10-11 SCNJ, 26; NALSA & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR (212) 652; OPUIYO V. OMNIWARI (2007) 16 NWLR (1060), 415. PER MOHAMMED LAWAL GARBA, J.C.A.
LEAVE OF COURT: WHEN CAN AN APPEAL BE SAID TO INVOLVE QUESTIONS OF PURE LAW, MIXED LAW AND FACTS OR FACTS ALONE FOR THE PURPOSE OF REQUIRING LEAVE OF COURT
To answer or determine the question, a Court would have to closely consider the grounds of the proposed appeal and see if the issues raised therein are pure law, or mixed law and facts or facts alone. In the case of MADUABUCHUKWU v. MADUABUCHUKWU (2006) ALL FWLR (318) 695 at 713 – 4 this Court had stated the criteria for the determination as follows:- ‘(1) Where the ground of appeal shows that the trial court or the appellate court misunderstood the law or misapplied the law to admitted or proved facts; that is certainly a ground of law. (2) Where the ground suggests an invitation to the court where an appeal is lodged, to investigate the existence or otherwise of certain facts or which challenges the findings of fact made by the trial Judge or where the evaluation of the evidence tendered is exclusively challenged, that is a ground of fact or at best a ground of mixed law and fact.” See also AZAZI v. ADHEKEGBA (2010) 3 WRN.145 at 166; COKER v. UBA PLC (1997) 2 NWLR (490) 641; NWADIKE v. IBEKWE (2004) 24 WRN.32. PER MOHAMMED LAWAL GARBA, J.C.A.
ON WHAT BASIS ARE ARGUMENTS OR SUBMISSIONS MADE
It is the law that arguments are canvassed by the learned Counsel for the parties to an appeal on issues which have been distilled from the grounds of appeal and specifically submitted for determination by the Court. Arguments or submissions are not made at large or at the whims of learned Counsel without reference to or any relation with the issue’s formulated for determination in an appeal particularly by a Respondent who has no cross appeal or a Respondent’s notice. The issue argued by the learned Counsel for the 1st Respondent at paragraphs 5.1-5.6 on pages 5 and 6 of the 1st Respondent’s brief was not one raised or submitted to the Court for determination in the appeal. It does not merit further consideration as it is of no moment in the appeal. The submissions are discountenanced. See OPEOLA v. FALADE (1991) 2 NWLR (173) 303; INTERNATIONAL CARPETS IND. LTD. v. SAVANNAH BANK (2006) 2 ALL FWLR (325) 108. PER MOHAMMED LAWAL GARBA, J.C.A.
WHEN A POINT OF LAW OR DEFENCE CAN BE RAISED ON PRELIMINARY OBJECTION OR IN A MOTION
Let me however say that in the case of OWNERS v. INSURANCE (2008) 5 SCNJ. 109, the Supreme Court had held at page 125 that:- “A point of law or defence can be raised on preliminary objection or in a motion if the point of law will be decisive of the whole litigation.” See also ATTORNEY-GENERAL OF THE FEDERATION v. GUARDIAN NEWSPAPER LTD (1999) 9 NWLR (618) 187 at 202. PER MOHAMMED LAWAL GARBA, J.C.A.
STATUTE OF LIMITATION: WHETHER AN ACTION CANN BE BROUGHT OR COMMENCED AFTER THE TIME PRESCRIBED BY THE LAW OR STATUTE HAD EXPIRED.
As a restatement of the established position of the law, where a law or Statute provides for the brining or commencement of an action within a prescribed period in respect of a cause of action accruing to a plaintiff, the action cannot or shall not be brought or commenced after the time prescribed by the law or Statute had expired. This means that an action commenced outside the period of time limited by the provisions of the relevant Statute cannot in law be maintained since it would offend or contravene the provisions of the Statute. Such an action is in judicial practice said to be statute barred and would rob the Court before which it was commenced, the necessary judicial vires to entertain it. See: OBIEFUNA v. OKOYE (1961) 1 ALL NLR 357; EGBE v. ADEFARSIN (supra); AREMO II v. ADEKANYE (supra); SANDA v. KUKAWA L.G. (1991) 1 NWLR (174) 379; IWEKA v. SCOA (2000) 7 NWLR (664) 325. The effect in law is that where an action is statute barred, a plaintiff who might have had a cause of action, loses the right to initiate its enforcement by the judicial process because the period of time limited by the limitation law for instituting such an action had lapsed or expired. In other words, the right to approach the Courts for the protection and/or enforcement of the cause of action is extinguished by the limitation law and lost by a plaintiff with the effluxion of the time prescribed for the commencement of the action. A Statute of limitation when it applies, removes the right of action, the right of enforcement, the right to judicial relief and leaves a plaintiff with a barren and useless cause of action which cannot be enforced in law. See: FADARE v. A.G. OYO STATE (1982) 4 SC 1, (1982) NSCC 52 at 60, ONADEKO v. UBN (2005) 4 NWLR (916) 440; MERCHANTILE BANK V. FETECO (1998) 3 NWLR (540) 143; MOBIL PROC. NIGERIA UNLIMITED v. UWEMEDUMO (2006) ALL FWLR (313) 116; AYARANMI V. NNPC (2010) 8 NWLR (1197) 616 at 639. PER MOHAMMED LAWAL GARBA, J.C.A.
CAUSE OF ACTION: MEANING OF A CAUSE OF ACTION
The law is trite that a cause of action simply means the factual situation which gives a person a right to a judicial relief or the fact or combination of facts which give rise to or vest a person with a right to sue for a judicial relief. See: AFOLAYAN v. OGUNRINDE (1990) 1 NWLR (127) 369; P. N. UDOH TRADING C. V. ABERE (2001) FWLR (57) 900, (2001) 11 NWLR (723) 114; AKILU v. FAWEHINMI (No.2) (1989) 2 NWLR (102) 122. PER MOHAMMED LAWAL GARBA, J.C.A.
STATUTE OF LIMITATION: WHEN DOES TIME BEGIN TO RUN FOR THE PURPOSE OF A STATUTE OF LIMITATION
It is also common knowledge in law that for the purpose of a Statute of limitation, time begins to run from the date on which the cause of action accrues to a person which normally is the date on which the incident giving rise to the cause of action occurs or happened or as the case may be, it ceases if it is of a continuous nature. See: SOSAN V. ADEMUYIWA (1986) 3 NWLR (27) 241; ODUBEKO V. FOWLER (1993) 7 NWLR (308) 637; OKAFOR V. A. G. ANAMBRA STATE (2005) ALL FWLR (274) 252; (2005) 14 NWLR (945) 210. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
1. HON. MINISTER, FEDERAL CAPITAL TERRITORY
2. ABUJA METROPOLITAN MANAGEMENT AGENCY Appellant(s)
AND
1. MONONIA HOTEL NIGERIA LIMITED
2. LUCHIA HOTEL LIMITED Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the FCT High Court contained in a ruling delivered on the 14/5/2007 in Suit No. FCT/HC/CV/1654/2006 dismissing a preliminary objection that the action was statute barred. The 1st Respondent herein, as Plaintiff in the High Court, had taken out a writ of summons on which were endorsed claims for declarations, injunction and damages against the Appellants. The claims were repeated in the statement of claim which accompanied the writ filed on the 14/7/2006.
After receipt of the writ and the statement of claim, the Appellants entered a conditional appearance and raised the preliminary objection that the action was by virtue of the provisions of Section 2(a) of the Public officers Protection Act, cap 379, Laws of the Federation of Nigeria, 1990, (to be called cap 379 after now) statute barred on the ground that it was filed after expiration of three (3) months from the date the cause of the action arose.
The facts from which the action arose as set out in the record of the appeal briefly put, are that the Appellants by a notice of revocation dated 5/10/05 revoked the rights and interests contained in the Certificate of occupancy No. FCT/ABU/MISC.7005 dated the 29/6/1995 issued to the 1st Respondent in respect of a parcel of land described as Plot 287, Cadastral Zone P5, Utako District of the FCT. In other words, the Certificate of Occupancy in respect of the above piece of land issued to the 1st Respondent was revoked vide the notice of revocation dated the 5/10/05 by the Appellants.
As stated above, the FCT High Court dismissed the preliminary objection and the Appellants being dissatisfied with that decision, filed the present appeal vide the Notice of Appeal dated the 25/5/07 which is at pages 72-74 of the record of appeal. Due to their brevity, I can afford to set out the four (4) grounds contained on the notice of appeal and they are as follows:-
“GROUND 1
The learned trial Judge erred in law when he held that the Defendants’ Preliminary Objection was a demurrer.
PARTICULARS
The learned trial Judge failed to properly avert his mind to the authorities cited by the Applicants’ counsel
GROUND 2
The learned trial Judge erred in law when the held that the date of service of the letter of revocation on the Plaintiff not having been pleaded, the Defendants’ Preliminary Objection is not sustainable.
PARTICALARS
The learned trial Judge delved into an issue for substantive trial while ruling on an application in limine.
GROUND 3
The learned trial fudge erred in law when he held that the 3rd Defendant not being a public servant, the defence of the Public Officers’ Protection Act cannot avail the Defendants.
PARTICULARS
The learned trial Judge failed to properly avert his mind to the reliefs sought by the Plaintiff.
GROUND 4
The learned trial Judge erred in law when he held that the Plaintiffs action is one for recovery of land and so the provisions of the Public Officers Protection Act do not apply herein,
PARTICALARS
The learned trial judge did not properly avert his mind to the reliefs sought by the Plaintiff.”
In the Appellants’ brief of argument filed on the 16/4/08 but deemed filed on 15/10/08 a single issue was submitted for determination in the appeal by Mr. K. P. Binga, learned Counsel who settled the Appellants’ brief. It is thus:-
“Whether or not the 1st Respondent’s case is statute barred under Section 2(a) Public Officers Protection Act, Cap 379, LFN 1990.”
The 1st Respondent’s brief settled by A. J. Osayande, Esq., was filed on the 16/1/09 but deemed filed on 21/1/09. A similar sole issue was formulated in different terms at paragraph 3.0 page 3 of the brief as follows:-
“Considering the circumstance of the Applicant’s Preliminary Objection and the nature of Respondents’ claim whether Section 2(a) of the Public Officers Protection Act, Cap 379, 1990 applied as to render the action statute barred?”
In response to the Respondents’ brief, the Appellants’ Reply brief was filed on the 3/2/09.
There is no record that the 2nd Respondent to the appeal had filed a brief or any other process in the appeal though duly served with all the processes therein.
At the hearing of the appeal on the 3/11/10, the briefs of argument aforementioned were adopted and relied on by learned Counsel for the parties as arguments canvassed in support of their respective positions in the appeal which we were urged to uphold.
As can easily be observed, the issue formulated by the learned Appellants’ Counsel is more precise and concise in setting out the grievance of the Appellants with the decision of the High Court. Since the 1st Respondent’s issue is of the same substance, I would use the formulation by the learned Appellants’ counsel in the determination of the appeal.
Before a review of the submissions by the learned Counsel on the issue, the learned Counsel for the 1st Respondent had raised and argued a preliminary objection at pages 3 and 4 of the 1st respondent’s brief. Because the objection challenges the competence of the appeal and in consequence, the jurisdiction of the Court to determine it, in line with the requirement of the law on practice and procedure, I intend to dispose of it first.
The ground of the objection is that the decision appealed against is an interlocutory one which involves questions of facts and law, and so requires leave to be competent. It was submitted by the learned Counsel for the 1st Respondent that the appeal does not fall within the exemptions in Section 242(1) of the 1999 Constitution and relying on Section 14(1) of the Court of Appeal Rules (it is the Court of Appeal Act) and the cases of WELLE v. BOGUNJOKO (2007) 6 NWLR (1029) 125 at 135 and OJEMEN v. MOMODU (1983) 1 SCNLR 188, he said leave was necessary before the appeal could be filed. That failure to obtain the leave renders the appeal incompetent and so robs the Court the juris-diction to entertain it.
In reaction, the learned Counsel for the Appellants after setting out Section 241(1)(b) of the 1999 Constitution in the Reply brief, had contended that the grounds of appeal and the sole issue raised by both parties questions the application of the provisions of Cap 379 to the 1st Respondent’s case. That the appeal is on pure issue of law alone challenging the jurisdiction of the High Court to entertain the suit. He said in the circumstances, no leave is required to bring the appeal.
I have set out the grounds of the appeal above.
Speaking generally, the right of a party to appeal against the decision of a High Court; State, Federal or FCT to this Court under the 1999 Constitution of FRN has been classified into two categories, i.e. an appeal as of right provided for under Section 241 (1)(a) and (b) and an appeal with leave of Court provided for under Section 242(1) of the Constitution. Under Section 242(1)(a) an appeal is as of right from the final decision of a High Court sitting at first instance and under Section 241(1)(b) where the ground of appeal involves questions of law alone, the appeal is as of right whether the decision was final or interlocutory. The appeal in these and the other situations set out in Section 241(1)(c)-(f) is as of right and so no leave of Court was required or necessary for bringing or filing it. See NWABUEZE v. NWORA (2005) ALL FWLR (272) 297, ADETONA v. EDET (2001) 3 NWLR (699) 186.
Section 242(1) provides for other situations in which right of appeal is subjected to the leave of Court before it could properly be exercised. For our purpose here, an appeal against the interlocutory decision of a High Court involving mixed law and facts or facts alone to this Court would require the prior leave of either the High Court concerned or this court for it to be competently brought or filed. Leave of court in such a situation is a condition precedent to the validity of an appeal in this Court.
See: AQUA LTD V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (91) 622; (1988) 10-11 SCNJ, 26; NALSA & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR (212) 652; OPUIYO V. OMNIWARI (2007) 16 NWLR (1060), 415.
Learned Counsel for the Respondent is right that the provision of Section 14(1) of the Court of Appeal Act, says in effect that an appeal from an interlocutory decision of a High Court made in the exercise of its original jurisdiction shall be by leave of either the High Court or this Court. The provisions of the Section are as follows:-
“14.(1) Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.”
I would like to point out here that the above provisions are in general terms just like the provisions of Section 242(1) of the 1999 Constitution which was subjected to the provisions of section 241. Section 241(b) provides that an appeal shall be as of right where the ground involves question of law alone in decisions in any civil or criminal proceedings. Decision as used in the section has been interpreted under Section 318 of the same Constitution in relation to a Court, any determination by that Court and includes judgment, decree, order, etc.
The decision by the FCT High Court over-ruling the preliminary objection by Appellants was a determination by that in the civil proceedings before it which resulted in the order of dismissal of the objection. In the circumstances, the provisions of the Constitution in relation to the right of appeal prevail and take precedent over the provisions of the Court of Appeal Act. The provisions of the Court of Appeal Act are subject to those of the Constitution under which I would determine if leave was required for the present appeal.
The question I ask now is, when can an appeal be said to involve questions of pure law, mixed law and facts or facts alone for the purpose of requiring leave of Court? To answer or determine the question, a Court would have to closely consider the grounds of the proposed appeal and see if the issues raised therein are pure law, or mixed law and facts or facts alone.
In the case of MADUABUCHUKWU v. MADUABUCHUKWU (2006) ALL FWLR (318) 695 at 713 – 4 this Court had stated the criteria for the determination as follows:-
‘(1) Where the ground of appeal shows that the trial court or the appellate court misunderstood the law or misapplied the law to admitted or proved facts; that is certainly a ground of law.
(2) Where the ground suggests an invitation to the court where an appeal is lodged, to investigate the existence or otherwise of certain facts or which challenges the findings of fact made by the trial Judge or where the evaluation of the evidence tendered is exclusively challenged, that is a ground of fact or at best a ground of mixed law and fact.”
See also AZAZI v. ADHEKEGBA (2010) 3 WRN.145 at 166; COKER v. UBA PLC (1997) 2 NWLR (490) 641; NWADIKE v. IBEKWE (2004) 24 WRN.32.
Looking at the grounds of the present appeal the common complaint and questions raised in them involve the High Court’s alleged misunderstanding and misapplication of the provisions of Cap 379 to the facts of the 1st Respondent’s action about which there was no dispute in the absence of any challenge from the Appellants by way of statement of defence. Grounds 1, 3 and 4 clearly relate to the High Court’s application of the law to the undisputed and therefore admitted facts contained in the 1st Respondent’s statement of claim. The grounds therefore involve issues or questions of law which as seen earlier, would not require leave under Section 241(1) (b) of the 1999 Constitution for the appeal to be brought or filed. I am for that reason in agreement with the learned Counsel for the Appellants that the leave of Court is not necessary for the appeal to be brought and consequently find no merit in the preliminary objection. It is accordingly dismissed.
The learned Counsel for the Appellants had contended on the issue that the High Court did not properly advert his mind to the provision of Section 2(a) of the Public Officers Protection Act and its intendment which he said is for the protection of public officers from actions which may be taken against them for acts done in pursuance of their public duties. That such actions could harass and thereby distract public officers from the performance of their ordinary every day functions and so the law requires that they must be brought within three (3) months of accrual of the cause of action, relying on AREMO II v. ADEKANYE (2004) 11 MJSC 11. It was the further contention of learned Counsel that in order to determine the limitation period of an action, the Court would look at the writ of summons and the statement of claim to find out when the alleged wrong giving rise to the action was committed and compare same with the date the action was instituted. If the time of filing the action was outside or beyond the period limited by statute, then the action is statute barred. The cases of AJAYI v. MILITARY ADMINISTRATOR OF ONDO STATE (1997) 5 NWLR (504) 237 and EGBE v. ADEFARASIN (1987) 1 NWLR (47) 1 were cited on the submission. According to him, from the claims on both the writ and the statement of claim, particularly paragraphs 30(i),(ii) and (iii) the 1st Respondent’s action was challenging the Appellants’ revocation of its allocation and the subsequent allocation of the piece of land in dispute to the 2nd Respondent. Learned Counsel said while the 1st Respondent’s title was revoked on 5/10/05 the suit was commenced to challenge same, on the 14/7/06 which is a period of about 9 months and outside the 3 months stipulated by Cap. 379. Further, that the 1st Appellant is a public officer by virtue of Section 8(1) of the Interpretation Act Cap. 792, Laws of the Federation of Nigeria (LFN), 1990, Paragraph 19 Part 1, 5th Schedule and Paragraph 7, Part 2 of the 1999 Constitution and so is entitled to the protection of Cap.379 on the authority of IBRAHIM v. J.S.C. (1998) 14 NWLR (584) 1. That the 2nd Appellant is also a public officer protected under the same Law and both Appellants acted within their statutory/constitutional authority under Sections 7 and 18 of the FCT Act Cap 128, LFN, Section 28 of the Land Use Act, Cap 202, LFN, 1990 and Sections 302, 315(d) and 299(a) of the 1999 constitution when they revoked the 1st Respondent’s certificate of occupancy. It was submitted by counsel that “any action” as contained in Section 2(a) of cap.379 is one arising out of any act done in pursuance or execution of any Act or Law or of any public duty undertaken by the defendants or their staff. Reliance was placed on UMUKORO V. NPA (1997) 4 NWLR (502) 656 and ODENIRAN v. NPA (2004) 7 NWLR (872) 230 at 237 and it was argued that the Appellants were essentially performing a statutory duty in the execution of a public duty or authority and so the propriety or otherwise of their action is not a relevant factor to be taken into consideration in the application of Section 2(a) of cap 379.
The statement of Karibi-Whyte, JSC in EGBE v. ADEFARASIN (supra) and ABUBAKAR v. GOVERNMENT OF GOMBE STATE (2002) 17 NWLR (797) 533 were referred to on the submission.
It is also the contention of learned counsel that it unarguable that the Appellants were sued for an action allegedly done or omitted to be done in the course of their official duties and so entitled to the protection of the law as stated in NPA PLC. V. LOTUS PLASTICS LTD. (2005) 19 NWLR (959) 158 at 188 and AMBODE v. MINISTER OF FOREIGN AFFAIRS (2004) 14 NWLR (894) 506 at 523. He said further that the High Court had erroneously held that since the date of service of the notice of revocation was not pleaded that it could not determine whether the action was statute barred or not because knowledge on the part of the plaintiff is not a pre-condition for the operation of a limitation law as held in AJIBOWA v. KOLAWOLE (1996) 10 NWLR 467) 36. That a cause of action arises or accrues on a date when the breach of any duty or act occurs which warrants the person thereby injured to institute a legal action in assertion or protection of his legal right that had been breached. In addition, a cause of action arises when there is a concurrence of facts giving rise to enforceable claim as defined in ELABANJO v. DAWODU (2000) 15 NWLR (1001) 76 at 122. and Black’s Law Dictionary, 8th Edition.
According to learned Counsel the cause of action in the 1st Respondent’s action arose on 5/10/05 when the notice of revocation was issued by the 1st Appellant which by paragraph 20 of the statement of claim the 1st Respondent was in receipt of.
Furthermore, it was contended for the Appellants that from the claims for declarations and injunctions, the 1st Respondent’s case cannot be said to be one for recovery of land but an action challenging the executive or administrative action or decision of the Appellants, citing as authority, the case of CAPT. HON. OKITI V. BAJEHSON ALL FWLR (307) 1054 at 1074. That to exempt cases of revocation from the application of Cap 379 is to defeat or restrict the manifest intention of the legislative which the Courts would decline to do. It was argued that once it is established that the subject matter of a suit arose out of the exercise by the defendant of public duty or enactment, Cap 379 shall apply and the issue whether or not the suit is for recovery of land, contract or revocation becomes otiose because to do otherwise is to defeat the intendment of the law makers. The case of CHIGBU v. TONIMAS (2006) 9 NWLR (984) 89 at 210 and EKEOGU v. ALIRI (90) 1 NWLR (126) 345 at 353 were cited as supporting that position. Finally it was submitted that in an objection that an action was statute barred, all that the Appellants needed to show is that the action was not instituted before the expiration of the period prescribed by the cap 379 and that they had done so here. we were urged to set aside the ruling of the High court and dismiss the 1st Respondent’s suit.
For the 1st Respondent, it was submitted on the lone issue that the Appellants had failed to show when the cause of action arose and that the 1st Respondent’s action was filed outside the period limited by cap 379. Learned counsel for the 1st Respondent agreed that the Appellants are public officers who would ordinarily enjoy the protection offered by Section 2(a) of Cap 379 but relying on the case of F.G.N. v. ZEBRA ENERGY LTD (2002) 18 NWLR (789) 79 at 196, said the Act was not intended to apply to contracts recovery of land cases and claims for work and labour done. The case of OKEKE v. BABA (2000) 3 NWLR (650) 647 was also cited on the point. It was the further argument of Counsel that it is the plaintiff s claim that determines the jurisdiction of the Court to entertain a suit brought before it as stated by the Supreme Court in ODUGBO v. ABU (2001) 14 NWLR (732) 45 at 97. According to him, the 1st Respondent’s claims in paragraphs 9 and 10 of the statement of claim put it beyond contention that the action was to recover possession of the plot of land in question from the 3rd Defendant (now 2nd Respondent) who enjoys possession by the effect of the action of the Appellants.
Learned Counsel also said the cases of CAPT. HON. OTIKI v. BAJEHSON, EKUNOLA v. CBN and CHIBU v. TONIMAS all (supra) cited by the learned Counsel for the Appellants, were not applicable to the appeal and that the High Court had no reason to have resort to Section 2(a) of Cap 379. He insisted that all the cases cited by the learned Counsel for the Appellants do not apply to the appeal because they did not involve recovery of land and invited us to discountenance them and to resolve the issue in favour of the Respondent.
Learned Counsel had earlier made submissions on what he called the improper way the Appellants’ objection was raised before the High Court. All I need say on the submissions is that they do not form part of the issue raised or formulated by the learned Counsel which he said arise for determination as set out at the beginning of this judgment. Having identified and submitted the issue whether Section 2(a) of Cap 379 applies to the action of the 1st Respondent, that issue should define the submissions to be made by learned Counsel particularly when any other issue was not identified to have been distilled from any of the grounds of appeal.
It is the law that arguments are canvassed by the learned Counsel for the parties to an appeal on issues which have been distilled from the grounds of appeal and specifically submitted for determination by the Court. Arguments or submissions are not made at large or at the whims of learned Counsel without reference to or any relation with the issue’s formulated for determination in an appeal particularly by a Respondent who has no cross appeal or a Respondent’s notice. The issue argued by the learned Counsel for the 1st Respondent at paragraphs 5.1-5.6 on pages 5 and 6 of the 1st Respondent’s brief was not one raised or submitted to the Court for determination in the appeal.
It does not merit further consideration as it is of no moment in the appeal. The submissions are discountenanced. See OPEOLA v. FALADE (1991) 2 NWLR (173) 303; INTERNATIONAL CARPETS IND. LTD. v. SAVANNAH BANK (2006) 2 ALL FWLR (325) 108.
Let me however say that in the case of OWNERS v. INSURANCE (2008) 5 SCNJ. 109, the Supreme Court had held at page 125 that:-
“A point of law or defence can be raised on preliminary objection or in a motion if the point of law will be decisive of the whole litigation.” See also ATTORNEY-GENERAL OF THE FEDERATION v. GUARDIAN NEWSPAPER LTD (1999) 9 NWLR (618) 187 at 202.
As a restatement of the established position of the law, where a law or Statute provides for the brining or commencement of an action within a prescribed period in respect of a cause of action accruing to a plaintiff, the action cannot or shall not be brought or commenced after the time prescribed by the law or Statute had expired. This means that an action commenced outside the period of time limited by the provisions of the relevant Statute cannot in law be maintained since it would offend or contravene the provisions of the Statute. Such an action is in judicial practice said to be statute barred and would rob the Court before which it was commenced, the necessary judicial vires to entertain it. See: OBIEFUNA v. OKOYE (1961) 1 ALL NLR 357; EGBE v. ADEFARSIN (supra); AREMO II v. ADEKANYE (supra); SANDA v. KUKAWA L.G. (1991) 1 NWLR (174) 379; IWEKA v. SCOA (2000) 7 NWLR (664) 325.
The effect in law is that where an action is statute barred, a plaintiff who might have had a cause of action, loses the right to initiate its enforcement by the judicial process because the period of time limited by the limitation law for instituting such an action had lapsed or expired. In other words, the right to approach the Courts for the protection and/or enforcement of the cause of action is extinguished by the limitation law and lost by a plaintiff with the effluxion of the time prescribed for the commencement of the action. A Statute of limitation when it applies, removes the right of action, the right of enforcement, the right to judicial relief and leaves a plaintiff with a barren and useless cause of action which cannot be enforced in law. See:
FADARE v. A.G. OYO STATE (1982) 4 SC 1, (1982) NSCC 52 at 60, ONADEKO v. UBN (2005) 4 NWLR (916) 440;
MERCHANTILE BANK V. FETECO (1998) 3 NWLR (540) 143; MOBIL PROC. NIGERIA UNLIMITED v. UWEMEDUMO (2006) ALL FWLR (313) 116; AYARANMI V. NNPC (2010) 8 NWLR (1197) 616 at 639.
The law is trite that a cause of action simply means the factual situation which gives a person a right to a judicial relief or the fact or combination of facts which give rise to or vest a person with a right to sue for a judicial relief. See: AFOLAYAN v. OGUNRINDE (1990) 1 NWLR (127) 369; P. N. UDOH TRADING C. V. ABERE (2001) FWLR (57) 900, (2001) 11 NWLR (723) 114; AKILU v. FAWEHINMI (No.2) (1989) 2 NWLR (102) 122.
It is also common knowledge in law that for the purpose of a Statute of limitation, time begins to run from the date on which the cause of action accrues to a person which normally is the date on which the incident giving rise to the cause of action occurs or happened or as the case may be, it ceases if it is of a continuous nature. See:
SOSAN V. ADEMUYIWA (1986) 3 NWLR (27) 241; ODUBEKO V. FOWLER (1993) 7 NWLR (308) 637;
OKAFOR V. A. G. ANAMBRA STATE (2005) ALL FWLR (274) 252; (2005) 14 NWLR (945) 210.
In order therefore to determine whether a plaintiff’s action was filed or commenced outside the period of time prescribed by the relevant statute of limitation, recourse is to be had to the writ of summons and/or the statement of claim which are the relevant materials for the purpose of a limitation law, in order to see where the alleged wrong was committed or the incident happened which gave rise to the cause of action and when the writ of summons was filed to commence the action. If the time on the writ of summons is outside or beyond the period of time prescribed, allowed or limited by the law, then the action is statute barred. So where the competence of an action was challenged on the ground that it was statute barred, all that the Court before which the objection was raised requires to look at and consider in the determination thereof are the writ of summons and statement of claim and compare the date of the accrual of the cause of action and the date the action was commenced as per the initiating process which usually is the writ of summons. It need not look for or consider other materials except the date of accrual of the cause of action and the date of commencement of the action before it cannot be determined from the writ of summons and the statement of claim. See:
AYONRONMI V. NNPC (2010) 8 NWLR (1197) 616 AT 639; ELEMA V. NEPA (2000) 3 NWLR (644) 337;
SANI V. PRESIDENT, F.R.N. (2010) 9 NWLR (1198) 153 AT 171.
In the case of USMAN DANFODIO UNIVERSTY, SOKOTO v. BALOGUN (2006) ALL FWLR (325) 116 at 182-3, it was held by this Court that:-
“Period of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gives the plaintiff a cause of action and by comparing the date with the date on which the summons was filed. This can be done without taking oral evidence.”
Enough of the restatement of the law generally on the application of a limitation law and I now turn to the application of Cap 379 to the 1st Respondent’s case as the sole issue formulated in the appeal.
It is expedient to set out the provisions of Section 2(a) of Cap 379 as a foundation for the consideration of the issue.
“2. Where any action, prosecution, or other proceeding is commenced against any person for any set 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) 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 ceasing thereof.”
I would say at the outset that learned Counsel are correct when they submitted that the above provisions do not apply in cases of contract or for recovery of land as established in the authorities cited by them on the point. In particular, the Supreme court had stated the position clearly in the case of F.G.N. v. ZEBRA ENERGY (supra) as follows:-
“The Public Officer Protection Act was not intended by the legislature to apply to contracts. The Law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done.
In the premises of the above decision, what needs be decided now is whether the Respondent’s claims are for recovery of land or contract to which the provisions of Cap 379 are not intended by the legislature to apply. I have observed that the High Court had decided that the claims do not relate or arise from a contract between the parties and there is no appeal against that finding. The complaint in ground 4 of the Notice of Appeal is that the High Court had held that the claims are in respect of recovery of land. As seen earlier, the learned Counsel for the Appellants had rather forcefully argued that the claims are for declarations and injunction, and relying on the statement by Abdullahi, PCA in CAPT. HON. OTIKI v. BAJEHSON (supra) said they cannot be for recovery of land but challenging the executive or administrative action or decision of the Appellants. I should point out that the case relied on by the learned Counsel for that argument did not decide the issue whether the provisions of Cap 379 applied to/in cases for recovery of land but on whether the FCT High Court has jurisdiction to entertain the action in view of Section 230(1)(b) Constitution (Suspension and Modification) Decree No. 107 of 1993. The statement referred to by him was made in the con of the facts disclosed in that case which are quite different from the ones in the 1st Respondent’s case. It therefore offers no assistance or help to the Appellants’ position here. True, the 1st Respondent’s claims include reliefs for declarations of right and injunction to protect that right but they all relate to and involve or even arose and so are based on the recovery of land, the possession of which the Appellants had taken away by the acts or decisions complained of and given to the 2nd Respondent. The 2nd Respondent (who was the 3rd Defendant in the High Court) had by the averment in paragraph 28 of the 1st Respondent’s statement of claim in concert with the officials of the 2nd Appellant entered and cleared the plot of land in question and thereby took over physical possession thereof. In fact by the deposition in paragraph 25 of the said statement of claim, the 2nd Respondent had commenced excavation of another foundation totally different from that of the 1st Respondent which are clear of acts of physical possession of the plot of land.
All the claims for declarations, injunction and damages by the 1st Respondent are essentially for the recovery of the plot of land and then damages for the destruction of its property and the wrong committed against its claimed right to the plot of land. The primary claim of the 1st Respondent against the Appellants is therefore one for recovery of the plot of land in question while the claims for damages and injunction are secondary.
Since the provisions of Cap 379 by the authorities cited earlier do not apply to cases for recovery of land as the 1st Respondent’s case, the High Court was right and I agree with it that the Appellants cannot take cover under the provisions to defeat the action of the 1st Respondent against them.
With the resolution of that point or issue, the appeal has effectively and fully been disposed of because all the other points or issues canvassed in the Counsels’ briefs have been rendered academic.
Before concluding this short judgment, I would like to observe that from the record of the appeal before us, at page 65, the FCT High Court had on 21/11/2006 when the case came up before it for hearing, ordered the Defendants therein (Appellants and 2nd Respondent here) to file their statement of defence before raising the preliminary objection.
The matter was then adjourned “to the 16th day of January, 2006” (must be 2007) but up to the 14/5/07 when the ruling on the preliminary Objection was delivered by that Court, there was no record to show that the order was complied with or that the High Court had taken any step in respect of the non-compliance with said order.
It must be pointed out that a Court of law, a superior Court of record for that matter created by the fountain of all laws in the country, would and should not make an order in vain, or just as a mere formality to be ignored by the party to whom it was directed or the Court itself. NACB v. ACHAGWA (2010) 11 NWLLR (1205) 339 at 367. A party who appears before a Court has a legal duty to obey and comply with an order of that Court directed at him except he immediately exercises the right to appeal against such an order, if dissatisfied with it. But it is contempt for a party who refuses, neglects, ignores or failed to comply with a competent order of a court to still approach that Court subsequently, with an application or even an objection while in disobedience of such order.
The contempt is more serious when a Counsel who is an officer of the Court was the person to whom the order was directed and decided to ignore it.
The law is that a party refusing to implement or comply with a competent order of a court is not entitled to be heard while still in the disobedience. The only exception to that rule is where a party is seeking leave to appeal, or appeals against the order of which he is in contempt or where he intends to show that because of the procedural irregularities in making the order, it ought not to be sustained. See FIRST AFRICAN BANK V. EZEBU (1992) 11-12 SCNJ 1 at 14.
It was very unfortunate that the learned counsel for the Appellant refused to comply with the order of the High court to file the statement of defence before raising the preliminary objection and worrisome for that court to have ignored the non-compliance with its order by allowing counsel to raise the preliminary objection before it. That court and all courts of law have the requisite power and owe the legal duty to ensure that their orders are duly complied with or obeyed by all to whom it was directed otherwise they may unwittingly turn into empty barrels. That should never happen.
In the final result, for the reasons I set forth, I resolve the lone issue raised by the learned counsel for the Appellants by holding that section 2(a) of the Public Officers protection Act, Cap 379, Laws of the Federation of Nigeria, 1990 does not apply to the 1st Respondent’s case which is for recovery of land. The appeal therefore fails and is dismissed accordingly.
I make no order on costs.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the Lead Judgment of my Lord MOHAMMED LAWAL GARBA, J.C.A, just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that this appeal lacks merit and it is dismissed by me.
REGINA OBIAGELI NWODO, J.C.A.: I have read in draft the Judgment of my learned brother Garba J.C.A. just delivered. His lordship has dealt extensively with the sole Issue raised in this appeal that I have nothing more useful to add.
The reasons contained therein I adopt as mine. Consequently I hold the Appeal is devoid of no merit and is accordingly dismissed.
I make no Order as to cost.
Appearances
K. P. BINGAFor Appellant
AND
A. J. OSAYANDE – for the 1st Respondent.
2nd Respondent not represented. Mr. O. Imhembe
Appeared for the 2nd Respondent on 11/5/2010 when the appeal was adjourned to today for Hearing.For Respondent
