IDZI & ORS v. NIPOST & ANOR
(2022)LCN/16838(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/K/339/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. HASSAN IDZI (Substituted For Late Idzi Amos) 2. TOPE AKINSETE 3. DANIEL ADAMU APPELANT(S)
And
1. NIGERIAN POSTAL SERVICE (NIPOST) 2. FEDERAL MINISTRY OF WORKS AND HOUSING RESPONDENT(S)
RATIO
WHETHER OR NOT WHERE THERE IS A CONTINUING INJURY, AN ACTION WILL BE STATUTE-BARRED
It is trite law that where there is a continuing injury, an action will not be time-barred. In the case of Abdulrahman v. NNPC (2021) 12 NWLR (Pt. 1791) 405 Pp 420-4221 Paras H-B the Supreme Court held thus:“Legal principle are not always inflexible. Sometimes they admit certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage a fresh cause of action arises from time to time as often as damage is caused. The second exception is where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty.” PER TALBA, J.C.A.
THE POSITION OF LAW ON DETERMINING WHEN A CAUSE OF ACTION AROSE
In determining whether an action is statute barred or not the most crucial consideration is when the cause of action arose. A cause of action arises the moment a wrong is done to the plaintiff by the defendant and the wrong which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a Court of law by way of enforcement. See Mrs O. Adekoya v. F.H.A (2008) 4 SCNJ 151.
The period of limitation in any limitation statute is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the limitation law the action is statute barred. See Mr. Popoola Elabanjo & Anor v. Chief (Mrs) Ganiat Dawodu (2006) 6 SCNJ 204.
In order to determine whether an action is statute barred or not, the Court must be involved in the exercise of calculation of years, months and days to the minutest detail. It is really an arithmetic exercise which needs a most accurate answer. See Mrs O. Adekoya v. FHA (supra).
Where there is no foundation that would enable the Court to do an arithmetic exercise of calculation then the Court cannot go into speculation or rather a voyage of discovery. The appellant’s statement of claim is bereft of substance in terms of dates and month when the cause of action accrued. PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court Kaduna Division delivered on the 20th of March, 2017, wherein the learned trial Judge dismissed the plaintiffs suit No: FCH/KD/29/2014 for being statute-barred.
By a writ of summons dated 7th day of April, 2014 the appellants instituted an action against the respondents seeking for the following reliefs:
1. A declaration that the action of the 1st defendant in attempting to exclude the plaintiffs from the Federal Government Monetization program by taking over and attempting to take over their residential houses is illegal and in breach of the Nigerian Postal Service Act and the Federal Government White Paper on the commission of enquiry for the investigation of the Federal Government Landed Property and the decision of the Federal Executive Council to lease the said houses to the occupants.
2. A declaration that the act of the 1st defendant in concealing the properties known as former post and Telecommunication Quarters by NITEL Zonal Headquarters, Golf Course Road Kaduna from the knowledge of the 2nd defendant is wrongful and illegal.
3. An order directing the immediate release of the properties known as former post and former Post and Telecommunication Quarters by NITEL Zonal Headquarters, Golf Course Road Kaduna to the 2nd defendant by the 1st defendant for onward transfer to the plaintiffs.
4. A declaration that the ejection of Idzi Amos from the house he was occupying until his retirement is wrongful, illegal ultra vires, null and void in the circumstance.
5. An order that the plaintiffs are entitled to the same rights and privileges enjoyed by their colleagues as a result of the Federal Government monetization policy.
6. An order restraining the defendants, their agents, servants and privies from doing anything and carrying out any act capable of excluding the plaintiffs from acquiring their houses in line with the Federal Government Monetization Policy and the White Paper on same.
Upon being served with the writ of summons and statement of claim the 1st respondent raised a preliminary objection, principally on the ground that the suit was statute barred as same was not commenced within 12 months from the date of accrual of the cause of action. On the 20th of March, 2017 the learned trial Judge upheld the preliminary objection and dismissed the suit. Being aggrieved by the decision, the appellants appealed to this Court vide a notice of appeal filed on 5th April, 2017, containing two grounds of appeal.
At the hearing of the appeal on the 28th of April, 2022, F. O. Adeneye of counsel adopted the following briefs of argument filed by the appellant:
1. Appellants’ brief filed on 30th of March, 2021
2. Appellants’ reply brief to the 1st respondent’s brief filed on 13th of April, 2022 and deemed on 28th of April, 2022.
3. Appellants’ reply brief to the 2nd respondent’s brief filed on 4th February, 2022 and deemed on 28th of April, 2022.
The appellants’ counsel urged the Court to dismiss the 1st respondent’s preliminary objection and to allow the appeal.
Samuel Yusuf of counsel informed the Court that the 1st respondent raised a preliminary objection and argued in the 1st respondent’s brief filed on 1st of March, 2022. He adopted the said brief and he urge the Court to uphold the preliminary objection and to dismiss the appeal.
Austin U. Nwarah of counsel adopted the 2nd respondent’s brief of argument filed on 25th November, 2021 and deemed on 29th November, 2021. He urge the Court to dismiss the appeal.
From the two grounds of appeal the appellants formulated two issues for determination in this appeal thus:
1. Whether the appellants’ action is caught up by Section 59(1) of the Nigerian Postal Service Act Cap N. 127 LFN 2004. Having regard to the decision of the Supreme Court in the case of Ibrahim v. Judicial Service Commission Kaduna State (1998) 14 NWLR (Pt. 584) 1 PP 32 and Nwankwere v. Adewumi (1966) ALL N.L.R 119.
2. Having regards to the circumstances of this suit whether it was proper for the learned trial Judge of the lower Court to dismiss the appellants’ case instead of striking out.
The 1st respondent distilled two issues for determination thus:
1. Whether plaintiffs claimed as presently constituted is statute-barred having been caught by the relevant statutes of limitation S. 59(1) NIPOST ACT CAP N127 LFN 2004; S. 285(9) of the 1999 Constitution as amended by the 3rd and 4th Alteration Act to the Constitution.
2. Having regards the circumstances of this suit whether it was proper for the learned trial Judge of the lower Court to dismiss the appellants’ case instead of striking out.
The 2nd respondent distilled three issues for determination thus:
1. Whether the case of the appellants is not statute barred as held by the lower Court having regards to Section 59(1) NIPOST ACT 1992, N127 LFN 2004.
2. Whether the appellants have adduced sufficient evidence to prove beyond reasonable doubt the issue of fraudulent concealment.
3. Having found that the case was statute-barred, whether it was proper for the learned trial Judge to have dismissed the suit.
After a calm and dispassionate perusal of the issues submitted by counsel, I adopt the two issues distilled by the appellant which in my view are apt for the determination of this appeal. But first and foremost I have to consider the preliminary objection raised by the 1st respondent.
In paragraphs 2.02 (a) to (c) of the 1st respondent’s grounds for bringing the preliminary objection, the 1st respondent contended that the appellants’ claim before the lower Court and the Court of Appeal are caught by the mandatory provisions of Section 59(1) NIPOST ACT Cap 127 LFN 2004, S. 2(a) of the Public Officers Protection Act LFN 2004 and S. 23 (1) & (2) of the Public Enterprise (Privatization and Commercialization) Act Cap P 38 LFN 2004. As the appellants’ suit was not instituted within the three months after the alleged neglect or default complained of. The 1st respondent relied on plethora of cases to buttress the point that once a matter exceeds the limitation period even by one day the matter is statute-barred. See Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 97.
In response, the appellants submitted that the case of the appellants is one of continuing injury and hence is an exception to the rule of limitation law. It is trite law that where there is a continuing injury, an action will not be time-barred. In the case of Abdulrahman v. NNPC (2021) 12 NWLR (Pt. 1791) 405 Pp 420-4221 Paras H-B the Supreme Court held thus:
“Legal principle are not always inflexible. Sometimes they admit certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage a fresh cause of action arises from time to time as often as damage is caused.
The second exception is where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty.”
Learned counsel further relied on the case of Radiographers Reg. Board Nig. v. M. & H.W.U.N (2021) 8 NWLR (Pt. 1777) 149 where the Court held inter alia:
“There are exceptions to the effect of Section 2(a) of the Public Officers Protection Act. One of them is the doctrine of continuance of damage. The doctrine postulates that where there is a continues damage/injury, a fresh cause of action arises from time to time as often as the damage is caused such fresh action gives a fresh cause of action.”
See also INEC v. Onowakpoko (2018) 2 NWLR (Pt. 1602) 134 and Pastor G. O. Durojaiye & 48 Ors v. A.B.U Zaria & 1 Or (Unreported). Appeal No. CA/K/357/17 delivered on 7th May, 2020.
Now the principal law under which the P/O is hinged upon is S. 59(1) of the NIPOST ACT N127 LFN 2004 which provides:
“Notwithstanding anything contained in any enactment whatsoever no action shall be or be instituted in any Court against the Postal Services, a member or an officer of the Postal Service for any act done in pursuance of or execution of any enactment or law of any public duty or authority, or in respect of any alleged neglect or default in the execution of such enactment or law, duty or authority unless it is commenced within Twelve months after the act or default complained of or in the cause of a continues damage or injury within twelve months next after ceasing thereof.”
In considering whether or not the appellants have complied with the above stated provision of the act, the learned trial judge held thus:
“I am of the humble and firm view and I so hold that the plaintiff/Respondents have not complied with the above provision of the Act. My reason for holding so is not far fetched, from the established facts, the plaintiffs/Respondents did not state the time, date or the year they were informed by NIPOST that is the 1st Defendant/Applicant that they were not beneficiaries under monetization policy and as such were not given the opportunity to bid for the house they were occupying. In other words, in the absence of this essential fact, it can be reasonably concluded that they became aware of Monetization Policy through the Punch Newspaper Publication of Monday the 21st day of May, 2007 which made them to write to the presidential implementation committee on the Federal Government Properties on the 16th day of August, 2013 of the wrong done to them by the 1st Defendant/Applicant.
Besides, the letter of 16th day of August, 2013 to the Presidential Implementation Committee on the Federal Government Properties was as a result of their discovery of fraudulent concealment of the 1st Defendant/Applicant’s unlawful exclusion of them from the Government Monetization Policy.
Again in that letter, they did not state the exact month of the year in 2013 when they discovered this fraudulent concealment of the 1st Defendant/Applicant. 2013 could be January, February, or March of the said 2013. The Plaintiffs/Respondents should not subject the Court to a state of conjecture.
They must state their facts clearly and unequivocal.
Consequently, I am once again of the firm view and I so hold that 2013 to April 2014 when the present action was filed is above twelve (12) months which is outside the period allowed by Section 59(1) of the NIPOST ACT 1992 N127 Laws of the Federation of Nigeria 2004…”
Having regard to the above ruling of the learned trial Judge which is an elucidation of the appellants statement of claim, I cannot but agree with the learned trial Judge that without mentioning specific dates of the occurrence of the events which gave rise to the suit, the Court is left in a state of conjecture. And having failed to state the exact month of the year in 2013 when the appellants discovered fraudulent concealment of the 1st respondent, the only logical conclusion is that 2013 to April, 2014 when the suit was filed is above twelve (12) months which is outside the period allowed by Section 59(1) of NIPOST Act. The case of Pastor G. O. Durojaiye & 48 Ors v. A.B.U Zaria & 1 Ors (supra) is quite distinguishable from the instant suit. In the earlier suit Adefope-Okojie JCA held thus:
“I disagree with the lower Court that the cause of action accrued in 2011 when the letter of complaint was written by the Appellants. The cause of action, I hold is not one that can be limited to the time the letters were written by the Appellants but to the failure of the authorities to respond thereto or act on these letters, coupled with their failure to refund the various monies paid on the bids in the event that the bids were not successful. As is undisputed not only was there no response the moneys paid were not returned, the supposition being that these bids were still being considered. In addition, representations were made by the parties to resolve this matter. The white paper authenticating and giving a Government backing to the process was frontloaded by the Appellant…”
In this instant case, there are disputes as to the time when the cause of action accrued.
In determining whether an action is statute barred or not the most crucial consideration is when the cause of action arose. A cause of action arises the moment a wrong is done to the plaintiff by the defendant and the wrong which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a Court of law by way of enforcement. See Mrs O. Adekoya v. F.H.A (2008) 4 SCNJ 151.
The period of limitation in any limitation statute is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the limitation law the action is statute barred. See Mr. Popoola Elabanjo & Anor v. Chief (Mrs) Ganiat Dawodu (2006) 6 SCNJ 204.
In order to determine whether an action is statute barred or not, the Court must be involved in the exercise of calculation of years, months and days to the minutest detail. It is really an arithmetic exercise which needs a most accurate answer. See Mrs O. Adekoya v. FHA (supra).
Where there is no foundation that would enable the Court to do an arithmetic exercise of calculation then the Court cannot go into speculation or rather a voyage of discovery. The appellant’s statement of claim is bereft of substance in terms of dates and month when the cause of action accrued.
On this note, I hold that the preliminary objection succeeds, in line with the decision of the lower Court. However, having resolved that the appellants’ claim before the lower Court is caught by the limitation law, Section 59(1) NIPOST ACT Cap 127 LFN 2004 it follows therefore that issue one in the main appeal is also resolved against the appellants.
Issue two is thus: having regard to the circumstances of this suit whether it was proper for the learned trial Judge to dismiss the appellants’ case instead of striking out? The appellants’ counsel submitted that assuming without conceding that the case of the appellants by virtue of their statement of claim is statute barred, the proper order to make is that of striking out and not dismissal, as dismissal connotes that the case has been decided on the merits. Learned counsel relied on the case of Sulgrave Holdings Inc. v. F.G.N (2012) 17 NWLR (Pt. 1329)309 AT 342 Para’s F-G where it was held thus:
“As the Court lacks the jurisdiction to entertain the action and not having been decided on the merit of the action the lower Court erred in dismissing the same, instead of striking out the same.” See also INEC v. Enasito (2018) 2 NWLR (Pt. 1602) 63.
The 1st respondent’s learned counsel submitted that the learned trial Judge was right when he dismissed the appellants’ case instead of striking it. He cited the case of Ibrahim v. JSC Kaduna State (1998) 14 NWLR (Pt. 584).
The 2nd respondent’s learned counsel also submitted that dismissal of a suit is the proper order to be made in the circumstance of this case since it cannot be re-litigated again by the plaintiffs/appellants having been instituted outside the period the claims could be made. The learned counsel relied on the following cases Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347); Etim v. IGP (2001) 11 NWLR (Pt. 724) 266; Shuaibu & Anor v. Kolesho (2021) LPELR-53435 (CA); Goodwill Company Ltd v. Calabar Cement Company Ltd (In Liquidation) & Ors. (2009) LPELR-8351 (CA).
Without much ado, I am on the same page with the submission of the appellants’ counsel that, where the Court holds that it lacks jurisdiction to entertain a matter, the remedy is to strike it out and not to dismiss it. In the case of P. N. Uddoh Trading Co. Ltd v. Sunday Abere & Anor (2001) 8 SCM 100, the Supreme Court stated that:
“Since an action is not maintainable because it is statute barred, it cannot be properly and validly instituted. If instituted, it is liable to be struck out as not being properly before the Court.”
And in the case of Alh. Jibrin Baba Hassan v. Dr. Muazu Babangida Aliyu & 2 Ors. (2010) 7-12 SC 21, the Supreme Court held thus:
“When a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being properly instituted before the Court.” See Sylva v. INEC (2015) 16 NWLR (Pt. 1486) 576 at 621-622 Para H-C (SC) and Sulgrave Holdings INC v. FGN (2012) 17 NWLR (PT. 1329) 309 at 342 Para F-G.
In line with the above settled principles of law, the second issue is resolved in favour of the appellant. In the final analysis, the appeal succeeds in part hence the first issue is resolved against the appellant and the second issue is resolved in favour of the appellant. Consequently, the decision of the lower Court dismissing the suit is set aside and instead the suit is struck out.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Abubakar Mahmud Talba, JCA, just delivered. I agree with the reasoning and
conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
F. O. Adeneye, Esq. For Appellant(s)
Samuel Yusuf, Esq. For 1st Respondent
Austin U. Nwaroh, Esq. For 2nd Respondent. For Respondent(s)
