IHESIE & ORS v. GOV. OF IMO STATE & ORS (2022)

IHESIE & ORS v. GOV. OF IMO STATE & ORS

(2022)LCN/16852(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Monday, February 07, 2022

CA/OW/213/2016

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Between

1. MRS. THERESA IHESIE 2. MRS. DAMIANA IHESIE 3. OBIOMA IHESIE 4. ANYAEHIE IHESIE 5. NWOKEDIEGWU IHESIE (For Themselves And On Behalf Of The Estate Of Late Ihesie Nwokenyimahu Of Uba, Umuaka Njaba L.G.A, Imo State) APPELANT(S)

And

1. THE GOVERNOR OF IMO STATE 2. THE ATTORNEY-GENERAL OF IMO STATE 3. THE COMMISSIONER FOR LANDS, SURVEY AND URBAN PLANNING, IMO STATE 4. THE COMMISSIONER OF POLICE, IMO STATE RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

It is trite that jurisdiction is very fundamental to adjudication and that where a Court lacks the competence to hear and determine a matter but proceeds to do so, an appellate Court is duty bound to nullify a decision resulting therefrom.
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, 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. PER LOKULO-SODIPE, J.C.A.

THE EFFECT OF STATUTE OF LIMITATION

There is no such blanket prohibition. See in this regard, the case of HASSAN V. ALIYU (2010) LPELR-1357(SC) wherein the Supreme Court dwelling on Section 2(a) of the Public Officers Act, stated thus: –
“Now the effect of a statute of limitation, such as the provisions of Section 2(a) of the Public Officers Protection Act, supra, on both cause of action and right of action is that it bars the right of action and not the cause of action. The cause of action refers to the facts or combination of facts which the plaintiff must adduce to entitle him to the relief(s) claimed while action or right to institute the action remains the means or medium affording the plaintiff the opportunity to ventilate his grievances – cause of action or bundle of facts, as variously described by the Courts over the years. The effect of a statute of limitation on the action of a plaintiff therefore is that it takes away the right of the plaintiff to institute the action but leaves him with his cause of action intact, though, without the right to enforce same or right to judicial relief.
When an issue of limitation of time to institute an action is raised, it is a preliminary issue touching on the competence of not only the action, but of the Court before which the action pends. It is long settled that an issue of jurisdiction is a periphery matter which must be resolved before proceeding to determine the merits of the case, where the issue is found not to have any merit. PER LOKULO-SODIPE, J.C.A.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 21/9/2015, by the High Court of Imo State presided over by Hon. Justice T.E. Chukwuemeka-Chikeka (hereafter to be simply referred to as the “lower Court and “the learned trial Judge (now Ag. C.J.)” respectively).

The antecedents of this appeal as contained in the record of appeal (hereafter to be simply referred to as “the record”) are that the Appellants as Claimants before the lower Court, by a writ of summons and statement of claim dated 11/9/2013 and filed on 12/9/2013 claimed against the Defendants (now Respondents) in paragraph 22 of the said statement of claim as follows: –
“(i). Declaration that the Defendants acts of demolishing the Claimants buildings and other structures situate and lying at Achara Umuaka, in Njaba Local Government Area of Imo State (shown on Survey Plan No. ECIS/714/78) are illegal and unlawful.
(ii). N900,000,000.00 (Nine Hundred Million Naira) being special damages for the wrongful, illegal and unlawful demolition and destruction of the buildings (two storey and one storey buildings) and other structures on the said land.
(iii). N500,000,000.00 (Five Hundred Million Naira) being exemplary and general damages for trespass on the said land.
(iv). Perpetual injunction restraining the defendants whether by themselves, their servants or agents howsoever and in whatsoever manner from entering or further trespassing on the aforesaid land.
IN THE ALTERNATIVE
1. An order of the Court mandating the Defendants to rebuild the buildings (two storey and one store buildings) and other structures on the said land.
2. N500,000,000.00 (Five Hundred Million Naira (being exemplary damages for the monstrous, capricious, outrageous oppressive, malicious and wrongful act of demolition/destruction of Claimants buildings and structures on the said land.
3. N150,000,000.00 (One Hundred and Fifty Million Naira) being general damages for trespass to property of Claimant.”

The 1st – 3rd Respondents, sequel to the filing of their statement of defence filed a motion praying the lower Court for “an order striking out the 1st – 3rd defendants in Suit No. HON/335/2013 (sic) pending before the Honourable Court”. The grounds upon which the application is brought as contained in the said motion on pages 195-196 of the record are: –
“1. The Honourable Court lacks the requisite jurisdiction to hear and determine this suit against the 1st – 3rd defendants.
2. There is no cause of action against the 1st, 2nd and 3rd defendants.
3. The action against the 1st – 3rd defendants is statute barred.”

The lower Court having taken arguments in the said motion, in a reserved judgment delivered on 21/9/2015, upheld the application. I consider it expedient to reproduce at length relevant portions of the judgment of the lower Court on appeal, save some of the cases cited therein and quotations from all the cited cases against the backdrop of the grounds of appeal in the notice of appeal and issues formulated therefrom by the Appellants and which I have perused before now. The relevant portions of the judgment of the lower Court read thus: –
“…Moving his motion on 10/6/2015, learned counsel to the applicants Osita Chukwuemeka Esq formulated three (3) issues for determination, to wit.
1. “Whether the Honourable Court has the requisite jurisdiction to hear this matter.
2. Whether there is cause of action against the 1st, 2nd and 3rd defendants;
3. Whether Suit No HON/33/2014 (sic) is statute barred.”
With the leave of Court, he made use of the further affidavit filed on 9/6/2015 and adopted the reply on points of law filed therewith. He urged the Court to grant the application.
Ihesie Esq., replying in opposition made reference to the affidavit in opposition filed on 10/11/2014, she adopted her written address attached thereto, therein the written address, she formulated two (2) issues for determination, they are:
“1. Whether the 1st – 3rd Defendants are public officers as envisaged by the Public Officers Protection Law, as to clothe them with the immunity offered by the law and thereby rendering the suit to be attached by the potency of the limitation proviso for bringing this suit against them and the Court lacking the requisite jurisdiction to entertain the reliefs sought against them in the circumstance.
Or
Whether the Honourable Court lacks the requisite jurisdiction to entertain this suit having regard to the provisions of Section 2(a) Public Officers Protection Law.
2. Whether Suit No HON/33/2014 (sic) is statute barred”
I must commend both counsel in their well researched brilliant submission (sic) it is now trite law that when an issue of jurisdiction is raised, the Court has (sic) duty to entertain and decide it first as it can be raised at any stage of the proceedings, even on appeal. See …
In the determination of three issue of jurisdiction, the Court is guided by the claim before it by critically looking at the writ of summons and the statement of claim. See …
The claimants/respondents’ claim/reliefs before the Court as per paragraph 22 of their statement of claim filed on 12/9/2013 are: …
The question that readily comes to mind is when does cause of action arise and how can cause of action be defined?
In the case of Egbe Vs Adefarasin (No. 2) (1987) 1 NWLR (Pt. 471) 1 at 20 Oputa defined it thus: …
Therein the claim, mention was made of the acts of the defendants, in demolishing the claimants building and other structures lying at Achara Umuaka in Njaba Local Government Area of Imo State. From paragraphs 11, and 12, of the statement of claim, the demolition which the 1st defendant ordered on the 17th day of May, 2013 was effected on 18th and 19th May, 2013. The reason for the demolition was that the premises was used for child trafficking because pregnant girls were discovered therein.
It is then the above act of the defendants that led to the institution of the present suit and thus the present objection.
When do (sic) one start to calculate cause of action?
See …
Adopting all the issues for determination and taking them together. What does Section 2(a) of the Public Officers Protection Act Provide?
Section 2(a) provides as follows:
“where any action prosecution, or other proceedings 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 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 defence complained of, or in cases if continuance of damage or injury, within three months next after the ceasing thereof.”
The instant action was commenced on 12th of September, 2013. The action complained about took place on 18th and 19th May, 2012. By simple calculation, it was commenced more than three thereafter against the defendants.
By the provisions of the Act cited above, are the officers that is the defendants protected? Are they public officers in the content (sic) of the law?
Section 18(1) of the Interpretation Act 2004 defined a Public Officer to mean:
“…”
In the case of Ibrahim Vs JSC Kaduna State (1998) 64 LRCN 5044 …
The Apex Court further held that where the words of a statute is clear and unambiguous, they must be given their plan (sic) and ordinary meaning.
Under the 1999 Constitution as amended, Public Officer is defined under paragraph 19 as (sic);
“a person holding any of the offices specified in part II of this schedule”
…
The case of Alapiki vs Gov River (sic) State & Anor (1991) 8 NWLR (Pt 211) 575 heavily relied upon by the respondents featured in the above J.S.C case (Supra). In a well considered judgment at page 41 paras E to G, the Supreme Court said that, that decision was based on Okewale’s case and differentiated our law with that of the English Act. It held that the Okewales (sic) was wrongly applied by the Court of Appeal.
The case of Alhaji Abbas Tafida Vs Abubakar & Ors (1992) 3 NWLR (Pt 230) 5 per Kastina Alu JCA as he then was also considered therein. See page 38 paragraph B-D.
From the totality of the above, the suit of the claimants was instituted three months after the act complained of was done. The defendants, inclusive of the 4th defendant who did not file any processes are all public officers.
The next question to be determined is, was (sic) the defendants carrying out any lawful duty recognized by law in the execution of the ‘act’ complained about?
The answer is ‘Yes’. The activities of the defendants was (sic) in compliance with the provisions of the Imo State Law No 11 of 2012, Prohibition of Hostage Taking and Related Offences (Amendment) Law 2012.
From the totality of the above and in line with the case of NPA PLC Vs Lotus Plastics Ltd (2006) 134 LRCN 546 @ 579 where the Supreme Court held,
“…”
The instant application succeeds, the case is dismissed with N50,000.00 in favour of the applicants to be paid to the Government coffer through the of the Court (sic) and receipt obtained.”

Aggrieved by the decision of the lower Court, the Appellants initiated this appeal by lodging at the registry of the lower Court on 28/9/2015, a notice of appeal dated 24/9/2015. The notice of appeal contains five grounds of appeal. The grounds of appeal shorn of their respective particulars reads: –
“GROUND ONE – ERROR OF LAW:
The trial Court erred in law by holding that the suit was caught by the provisions of Section 2(a) of the Public Officers Protection Act and thereby rendering the suit statute barred.
GROUND TWO – ERROR IN LAW:
The trial Court erred in law by holding in an interlocutory application and delving into the substantive matter to hold that the Respondents (sic) acts of demolition/destruction of the buildings of Appellants were not wrongful and illegal but proper under the Law No. 11 of 2012 Imo State.
GROUND THREE – ERROR IN LAW:
The trial Court erred in law by holding that Law No. 11 of 2012 (Prohibition of Hostage Taking and Related Offences (Amendment) Law, 2012) empowers the Respondents to carry out demolition of Appellants (sic) property when none of the Appellants or any tenant of theirs staying in the buildings were charged and convicted of hostage taking as stipulated by the Principal Law (Law No. 4 of 2009).
GROUND FOUR – ERROR OF LAW:
The trial Court erred in law by holding that Appellants are not entitled to and covered by their constitutional right to property under Section 43 of the Constitution of the Federation of Nigeria 1999 (sic) (as amended) and thereby dismissed their claims.
GROUND FIVE – ERROR IN LAW:
The trial Court erred in law by dismissing the suit/claims of the Appellants for no justifiable ground.”

The reliefs sought by the Appellants from this Court are: (i) to set aside the decision of the lower Court and dismiss the preliminary objection of the Respondents; (ii) to direct the Chief Judge of Imo State to transfer the suit to another Judge for hearing and determination on the merit.

The appeal was entertained on 8/11/2021 with learned counsel for the Appellants Ifeoma G. Ihesie, adopting and relying on the Appellants’ brief of argument dated 17/7/2017 and filed on 24/7/2017 but deemed as properly filed and served on 7/12/2017 as well as the Appellants’ reply brief of argument dated and filed on 3/10/2018 and deemed properly filed and served on 17/6/2018. Respondents were absent and unrepresented at the hearing of this appeal and having confirmed from its records that the Respondents were served with hearing notice on 4/11/2021, the Court proceeded to deem the appeal as argued by the 1st – 3rd Respondents upon their brief of argument dated 22/9/2018 and filed on 22/1/2019 but deemed as properly filed and served on 17/1/2019. The 4th Respondent filed no brief of argument in this appeal.

The Appellants in their brief of argument, distilled five issues for the determination of this appeal and they read thus: –
1. Whether the trial Court was right by holding that the suit was caught by the provisions of Section 2(a) of the Public Officers Protection Act and thereby rendering the suit statute barred. (Ground 1)
2. Whether the trial Court was right by holding in an interlocutory application and delving into the substantive matter to hold that the Respondents(sic) acts of demolition/destruction of the building of Appellant (sic) were not wrongful and illegal but proper under the Law No. 11 of 2012 Imo State. (Ground 2)
3. Whether the trial Court was right by holding that Law No. 11 of 2012 (Prohibition of Hostage Taking and Related Offences (Amendment) Law, 2012) empowers the Respondents to carry out demolition of Appellants property when none of the Appellants or any tenant of theirs staying in the buildings were charged and convicted pf hostage taking as stipulated by the Principal Law (Law No. 4 of 2009). (Ground 3)
4. Whether the trial Court was right by holding that Appellants are not entitled to and covered by their constitutional right to property under Section 43 of the Constitution of the Federation (sic) (as amended) and thereby dismissed their claims. (Ground 4)
5. Whether the trial Court was right by dismissing the suit/claims of the Appellants for no justifiable ground. (Ground 5)”

The two issues formulated by the 1st – 3rd Respondents (who shall hereafter be referred to as “the Respondents”) in their brief of argument for the determination of the appeal, are thus: –
“1. Whether the Court was right in holding that the suit is statute barred.
2. Whether the trial Court was right to have dismissed the suit in the circumstances of the case.”

Before proceeding to determine the appeal on the issues formulated by the Appellants and the Respondents respectively, I consider it expedient to state that the settled principles of law relating to grounds of appeal and formulation of issues from grounds of appeal remain that: –
(1) Grounds of appeal must flow from the judgment on appeal or the proceedings before the Court from the appeal emanated.
(2) Issues that call for determination in an appeal must be distilled from a proper or valid ground of appeal.
See the cases of OGUNLADE V. ADELEYE (1992) LPELR-2340(SC), NJEMANZE V. NJEMANZE (2013) LPELR-19885(SC), OLONADE V. SOWEMIMO (2014) LPELR-22914(SC), and OKPULOR V. OKPULOR (2019) LPELR-47554(CA).
It becomes obvious that ground 4 in the notice of appeal and issue 4 distilled therefrom have no basis in the instant appeal. This is because it is very glaring from the judgment of the lower Court that has been reproduced at length hereinbefore that the issue of deprivation of the Appellants’ right to property as provided for in the Constitution was not an issue formulated by the Appellant for the determination by the lower Court in the Respondents’ application and was also not an issue formulated by the said Respondents for determination by the lower Court in their application. Hence, the lower Court could not have been expected to have made any pronouncement on the said issue and indeed never made any pronouncement thereon. Appellants’ ground of appeal No. 4 in the notice of appeal is therefore in respect of an issue that did not arise for determination by the lower Court in the Respondents’ motion and also does not flow from the proceedings and judgment of the lower Court on appeal. The said ground of appeal i.e. ground 4 must therefore be struck out in compliance with the position of the law relating to a ground or grounds of appeal that do not flow from the judgment on appeal. A fortiori, issue no. 4 having being distilled or formulated from an improper ground of appeal has no foundation. Accordingly, Appellants’ ground 4 in the grounds of appeal as well as issue 4 distilled by the Appellants for the determination of the instant appeal are hereby struck out and arguments in respect of the said issue no. 4 as proffered in the Appellants’ brief of argument will be discountenanced in this judgment.

Dwelling on issue 1, Appellants submitted to the effect that the provisions of Section 2(a) of the Public Officers Protection Act (hereafter to be referred to as “the Public Officers Act”) does not afford protection to an officer who acts outside the scope of his authority. That none of the Appellants was found guilty of an infraction of the Imo State Prohibition of Hostage Taking and Related Offences (Amendment) Law, 2012 (hereafter to be referred to as “Law No. 11 of 2012”) before the Respondents demolished their buildings. It was further submitted that in the event that the Appellants were in breach of the provisions of the said law, it was for the Courts to determine such and not the Respondents and that the Respondents acted contrary to the principles of natural justice. The Appellants also argued that the Public Officers Act admits of the exceptions of where the injury caused is a continuous one, claims in contract; claims for work done and labour; cases of recovery of land; cases of enforcement of fundamental rights; and where it is shown that the officer acted in bad faith. The Appellants posited that their case is predicated on trespass and recovery of land, which acts of trespass by the Respondents are continuing (the Appellants still being deprived of the said land) and the acts of demolition done in bad faith still continuing.

It is the Appellants’ submission on issue 2 that the lower Court considered the merits of the respective cases of the parties in reaching a conclusion that there was compliance by the Respondents with Law No. 11 of 2012 while considering the interlocutory application without hearing parties on the same and thereby breached the rights of the parties, particularly the Appellants, to fair hearing.

Dwelling on issue 3, the Appellants submitted to the effect that it is only a Court of competent jurisdiction that can convict and impose punishment on a person. That the Appellants were never arrested, prosecuted nor convicted by any Court for any offence to warrant the demolition of their building. Further, that assuming that the said law allows for the demolition of the buildings of the Appellants, the said law in that regard being inconsistent with Section 43 of the Constitution is null and void.

The Appellants’ submission on issue 5 is to the effect that the lower Court did not give the Appellants the opportunity to address it on the issues which the said Court raised as basis for dismissing their (Appellants) suit. That the lower Court ought to have considered the pleadings of the Appellants and not that of the Respondents in reaching its decision on the issue of statute bar, lack of jurisdiction and abuse of Court process. It was further argued that the offence of hostage taking upon which the lower Court held that the Respondents were right in demolishing their (Appellants) buildings is distinct from the case before the lower Court. Appellants submitted that the lower Court suo motu adjourned the matter at the lower Court from ruling to ruling/judgment and further that it was not for the lower Court to determine in what manner the cost awarded by the said Court against the Appellants is to be paid. I must however observe right away that arguments in relation to “adjournment suo moto” by the lower Court and that of the manner of the payment of costs, are on issues that find no support or foundation in the grounds of appeal in the notice of appeal and therefore the said arguments, require no further consideration in this judgment. See the case of MADUMERE V. OKAFOR (1996) LPELR-1810(SC).

Dwelling on the 1st issue formulated by the Respondents for the determination of this appeal, they (Respondents) submitted to the effect that they are public officers within the contemplation of the Public Officers Act. That the cause of action as disclosed in the writ of summons and statement of claim, is the alleged destruction by the Respondents of the Appellants’ buildings (which was carried out by the said Respondents in their capacity as public officers) and the same arose on 18/5/2013 and 19/5/2013 while the Appellants’ suit was filed on 12/9/2013, contrary to the provisions of Section 2(a) of the Public Officers Act and consequently, the Appellants’ suit is statute barred.

The Respondents’ stance on their issue 2, is to the effect that the Appellants’ suit being statute barred, renders the same null and void and that the lower Court rightly dismissed the same. Having argued the two issues, they raised for the determination of the appeal, the Respondents thereafter proceeded to respond to each of the issues raised by the Appellants in their brief of argument. Recourse would be made to these in this judgment where it is considered expedient so to do.

Appellants’ reply brief of argument referred to hereinbefore, is merely a rehash of the argument in the Appellants’ brief and as such is of no utilitarian value in the determination of this appeal. This is because a reply brief by Order 19 Rule 5(1) of the Court of Appeal Rules, 2021 ought only to respond to new issues raised by a respondent in its brief of argument and not an avenue for an appellant to re-argue, emphasise or re-enforce his argument contained in his brief of argument. See also the case of AKAYEPE V AKAYEPE (2009) LPELR-326(SC). Having considered the grounds of appeal filed by the Appellants and the issues formulated and argued by the parties in this appeal, it is my considered view that the germane issue for the determination of this appeal is “whether the lower Court, given the pleadings of the parties was right in dismissing the Appellants’ suit for being statute barred pursuant to Section 2(a) of the Public Officers Protection Act upon the preliminary objection of the Respondents (i.e. 1st – 3rd Defendants) before it?”

To resolve this issue, it is necessary to reproduce the provisions of Section 2(a) of the Public Officers Act, again. It states thus: –
“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 of 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 the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”

I am of the considered view that the lower Court and indeed the Respondents were in serious misapprehension of the case of the Appellants regarding the applicability of the limitation of action under the Public Officers Act. This is against the backdrop of the pleadings of the said Respondents wherein the issue of protection under the said Act was brought to the fore. In this regard, see paragraphs 6-14 of the amended statement of defence of the Respondents which state as follows: –
“6. The Imo State House of Assembly passed a law known as the Imo State Prohibition of Hostage Taking and Related Offences (Amendment) Law, 2012. Law No. 11 of 2012.
7. The Police carried out their statutory function under Law No. 11 of 2012.

8. The Police carried out investigations and their investigations revealed that Ahamefule hospital and maternity operated illegal activities by transferring pregnant girls in the night to a place in the bush where the young girls are kept illegally.

9. That the Police investigations revealed that the pregnant girls were deceived and brought to the Ahamefule Hospital which was also meant to serve as a motherless babies home and later in the night they would be transferred to the illegal hidden Adult pregnant young girls home (sic).
10. The 1st, 2nd and 3rd defendants are not involved in crime investigation and they did not pull down or demolish the claimants’ building.
11. Any building that was demolished was done under the provisions of Law No. 11 of 2012. A law of the House of Assembly of Imo State. The following are pleaded and shall be relied upon at the hearing: Imo State Prohibition of Hostage Taking and Related Offences Law, 2012 and Counter Affidavit filed in suit No. HOR/71/2013.
12. The 1st, 2nd and 3rd defendants shall raise preliminary objection to the hearing of this suit on the following grounds:
(a) The case is an abuse of the Court’s process

(b) There is no cause of action against the 1st, 2nd and 3rd defendants.
(c) The suit against the 1st, 2nd and 3rd defendants is statute barred.
13. The 1st, 2nd and 3rd defendants are not parties to the following suits: HON/47/2002; HON/64/2002; HOR/8/2010 and HOR/71/2013.
14. The 1st, 2nd and 3rd defendants are public officers.”

The lower Court in its judgment would appear not to appreciate the point that no good pleader will plead in a statement of claim the fact of an action being statute barred in his own action. The fact as to whether or not an action is statute barred is one that is deducible by a Court given the averment in relation to the accrual of a cause of action and the date of the filing of the action in question. The Appellants in the length and breadth of their statement of claim clearly did not aver anything that remotely suggested that the Respondents were acting under the colour or pursuant to any enactment that dealt with discovery of pregnant girls in carrying out the acts complained of by the Appellants and or the fact that the said pregnant girls and/or babies were hostages. It was therefore a triable issue for the lower Court and which made it incumbent on the said Court to have made a finding based on facts established by evidence that the action that was taken apparently by the 4th Respondent (given the averments in paragraphs 7-10, particularly paragraph 10 of the Respondents’ amended statement of defence which has been reproduced hereinbefore) was taken by the said 4th Respondent (who never filed any application before the lower Court for any purpose) pursuant to Law No. 11 of 2012. In other words, it is definitely awkward for the Respondents who never admitted/conceded that they committed any act and or made any omission in relation to the act of the 4th Respondent who they claim on their pleadings to have carried out the demolition, to be seeking for the application to them of the protection afforded by the Public Officers Act for what they did not admit doing. I am of the considered view that it is very clear from the provisions of Section 2(a) of the Public Officers Act that a public officer who does not admit having committed an act or made an omission under an enactment which empowers the said public officer to do or not to do an act cannot seek for protection under the said Public Officers Act. This is more so as the affidavit in support of the Respondents’ application is totally bereft of any concession as to what they did and/or the omission they made in the instant case. In this regard, see paragraphs 5 and 6 of the supporting affidavit to the Respondents’ motion the lower Court entertained and which states thus: –
“5. That E.C. Aguta (MRS.) Counsel to the defendants informed me in her office at the State Secretariat by 3.00pm and I verily believe her that:
“(a) the 1st, 2nd and 3rd defendants have filed their statement of defence.
(b) The Honorable Court lacks the requisite jurisdiction to hear and entertain the suit against the 1st, 2nd and 3rd defendants.
(c) There is no cause of action against the 1st, 2nd and 3rd defendants.
(d) The action against the 1st – 3rd defendants is statute barred.
6. That the 1st – 3rd defendants are public officers.”

The other paragraphs of the 8-paragraph affidavit are introduction and conclusion. This being the situation, it would appear that the Appellants are on firm grounds when they argued to the effect that the lower Court delved into the merits of the instant case in an interlocutory proceeding to wit: preliminary objection seeking for the dismissal of the Appellants’ case without the parties placing evidence which had to be evaluated in coming to a finding to the effect that the Respondents including the 4th Respondent (who had no application before it) as public officers carried out a lawful duty. It is a settled position of the law that a Court should not dwell on the merit of a case before it in an interlocutory proceeding. See the cases of AKINYEMI V. SOYANWO (2006) LPELR-363(SC), UNIVERSITY PRESS LTD V. I.K. MARTINS (NIG) LTD (2000) LPELR-3421(SC).

It is expedient to reproduce at this stage provisions of Section 5 of Law No. 4 of 2009 and Section 3 of Law No. 11 of 2012, alluded to by the parties and lower Court as shown in the record. This is particularly so as I do not understand any provision in Law No. 11 of 2012, as having repealed any provision of Law No. 4 of 2009.
“Section 5: Law No. 4 of 2009
Any person who willfully or knowingly allows or permits a premises, building or place belonging or occupied by the person, which the person has control over for the purpose of keeping a person a person hostage is guilty of an offence and is liable on conviction to sentence of death. In the case of an artificial person, she is liable on conviction to a fine of ten million naira (N10,000,000.00).
Section 3: Law No.11 of 2012
The principal law is hereby amended as follows: –
…
(f) Immediately after Section 8 of the Principal Law, add the following new Sections 9 and 10 to read as follows –
9. Any premises where a person(s) is held shall be forfeited to the Imo State Government
10. The premises referred to in Section (3), (4) and (9) above shall be destroyed and or converted to any other use for overriding public interest by the Imo State Government.”

Flowing from the above is that the issue raised by this Court in this judgment must be resolved in favour of the Appellants given the position of this Court to the effect that the accusation by the Appellants that the lower Court delved into the merit of the case at the stage of considering the preliminary objection of the Respondents on the issue as to whether or not the Respondents acted in compliance with the provisions of Law No. 11 of 2012, in determining the issue as to whether Appellants’ action is/was statute barred must be and is hereby resolved in favour of the Appellants. Having resolved this issue in favour of the Appellants, it necessarily follows that the resolution of any other issue or issues formulated by the parties for the determination of this appeal, is rendered otiose. This is because the proper order this Court must make in the circumstance of this case is for the case to be heard on the merit and at the end of which the issue as to whether the Appellants’ suit is statute barred or not having regard to Section 2(a) of the Public Officers Act as raised by the Respondents in their statement of defence (being a triable issue) and which parties, I must again say never conceded/admitted having acted in any manner in respect of the Appellants’ demolished buildings, will be one to be first addressed in the judgment of the lower Court. The lower Court in its judgment would appear to have considered that the law prohibited the taking of evidence before a Court comes to a decision on the issue as to whether or not an action is statute barred. There is no such blanket prohibition. See in this regard, the case of HASSAN V. ALIYU (2010) LPELR-1357(SC) wherein the Supreme Court dwelling on Section 2(a) of the Public Officers Act, stated thus: –
“Now the effect of a statute of limitation, such as the provisions of Section 2(a) of the Public Officers Protection Act, supra, on both cause of action and right of action is that it bars the right of action and not the cause of action. The cause of action refers to the facts or combination of facts which the plaintiff must adduce to entitle him to the relief(s) claimed while action or right to institute the action remains the means or medium affording the plaintiff the opportunity to ventilate his grievances – cause of action or bundle of facts, as variously described by the Courts over the years. The effect of a statute of limitation on the action of a plaintiff therefore is that it takes away the right of the plaintiff to institute the action but leaves him with his cause of action intact, though, without the right to enforce same or right to judicial relief.
When an issue of limitation of time to institute an action is raised, it is a preliminary issue touching on the competence of not only the action, but of the Court before which the action pends. It is long settled that an issue of jurisdiction is a periphery matter which must be resolved before proceeding to determine the merits of the case, where the issue is found not to have any merit.
In the instant case, the matter resulting in the instant appeal originated by way of a preliminary objection challenging the jurisdiction of the trial Court to entertain the action as constituted. However, I am worried that Learned Senior Counsel for the appellant has emphatically submitted that the lower Courts, in trying to resolve the issue at stake, ought to have delved into the merits of appellant’s case. At page two (2) paragraph 4.15 of the appellant’s brief, counsel submitted as follows: –
My Lords, it is submitted that the lower Courts completely ignored and overlooked the relevant statutory provisions enumerated above in determining the unlawfulness of the purported substitution of the Appellant by the Respondents as the Governorship candidate of the 2nd Respondent for Niger State in the 2007 Elections.
It is trite that jurisdiction is very fundamental to adjudication and that where a Court lacks the competence to hear and determine a matter but proceeds to do so, an appellate Court is duty bound to nullify a decision resulting therefrom.
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, 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.
Are there facts on record from which the Court can agree with the appellant that the 3rd respondent acted outside its scope of authority or without the semblance of legal justification in acting on the letter of substitution in question?
To answer the question, one has to look at the affidavit in support of the Originating Summons, particularly paragraphs 4 and 5 thereof, which deposed as follows: –
…”
In the circumstances of the instant case, simply identifying the date or dates a cause of action arose; the date of the institution of the case, having regard to the date of the accrual of cause of action, and whether or not the Respondents are public officers, are insufficient to determine the applicability of the protection bestowed on the 1st – 3rd Respondents as public officers under Section 2(a) of the Public Officers Act in the performance of their duties under Law No. 11 of 2012 as stated by the lower Court, or indeed, any other enactment.

In the final analysis, there is merit in the instant appeal having regard to the success of Appellants’ issue 2. The appeal is meritorious and is allowed. The case is hereby remitted to the Chief Judge of Imo State for it to be assigned to another Judge of the High Court of the State for hearing on the pleadings as they are or as may be amended if considered expedient by the parties and at which the preliminary objection of the Respondents can still be ventilated if they consider doing so desirable.

I make no order as to costs in the instant appeal.

AMINA AUDI WAMBAI, J.C.A.: I read before now the leading judgment of my learned brother, Ayobode Olujimi Lokulo-Sodipe JCA. I am in agreement with the sound reasoning and conclusion that the appeal is meritorious and abide by the order remitting the case to the Hon. Chief Judge of Imo State for re-assignment to another judge for hearing on pleadings.

IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading the draft judgment delivered by my learned brother, Lokulo-Sodipe, JCA. His Lordship has painstakingly dealt with the issues distilled for determination in this appeal such that I do not have anything to add. I agree with the reasoning and conclusion reached by his Lordship in the judgment. I also allow the appeal and abide by the orders made by my learned brother.