INEC vs. CHIEF GODWIN ENASITO (2017)

INEC vs. CHIEF GODWIN ENASITO

(2017) LCN/4527(SC)

In the Supreme Court of Nigeria

Friday, April 7, 2017


Case Number: SC.705/2015

 

JUSTICES:

WALTER SAMUEL NKANU ONNOGHEN

MUSA DATTIJO MUHAMMAD

KUDIRAT M. O. KEKERE-EKUN

EJEMBI EKO

SIDI DAUDA BAGE

 

APPELLANTS

INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC)

RESPONDENTS

CHIEF GODWIN ENASITOCHIEF JOHN AKARUAYEN EWENEDEBARRISTER JONAH IJOMONECHIEF SAMUEL BULUKUCHIEF VINCENT ODUARAN

RATIO
ESSENCE OF A STATUTE OF LIMITATION
“A statute of limitation of action designed to stop or avoid situation, where a plaintiff can commence action anytime he feels like doing so, even when human’s memory would have normally faded and therefore failed. Putting it in another language, by the statute of limitation a plaintiff has no freedom of air to sleep or slumber and wake up at his own time to commence an action against the defendant. The different statute of limitation which are essentially founded on the principle of equity and fair play will not avail such a sleeping or slumbering plaintiff.”
MEANING OF CONTINUANCE OF INJURY
“Continuance of injury or damage means continuance of legal injury, and not merely continuance of the injurious effect of a legal injury. The continuance of the injurious effect of an accident is not a continuance of the injury or damage within the meaning of the Public Authorities Protection Act 1993.”
EFFECT OF Section 2 (a) of the Public officers Protection Act
“The essence or effect of Section 2 (a) of the Public officers Protection Act is that an action against a public officer in respect of any Act done in pursuance or execution of any Act or Law or of a public duty or default of same can only be commenced within three months next after the act, neglect or default complained of except in case of continuance of damage or injury in which case, the person aggrieved must institute the action within three months next after the cessation of the damage or injury complain of. In other words, the section extinguishes the cause of action if it is commenced after three months except where there is continuance of injury or damage for which a fresh cause of action arises from time to time as often as damage or injury occurs. In this case, the respondents stated in their affidavit that the appellant excised and suppressed the Otukpa State Constituency in 1996 but they commenced their suit in 2011; that is, 15 years in excess of the three months the Act allows for commencement of proceedings. The respondents, however, did not present evidence that there was continuance of damage or injury to them. In the circumstance, the respondents’ cause of action was statute-barred.”
PURPOSE OF A STATUTE OF LIMITATION
“The whole purpose of this limitation Act is to apply to person who have good causes of action which they could if so disposed, enforce, and to deprive them of power of enforcing them after they have lain by for the number of years respectively and omitted to enforce them. They are this deprived of the remedy which they have omitted to use.”
EXCEPTION TO THE STATUTE OF LIMITATION AGAINST A PUBLIC OFFICER
“where a public officer fails to act in good faith, or acts in abuse of office or maliciously, or with no semblance of legal justification, he will not be protected by the provision of Section 2 (a) of the Public Officers Protection Act as to three months time limit for commencement of action against him. In this case, however, the exceptions did not avail the appellant.”

JUDGMENT
( DELIVERED BY HON. JUSTICE S. D. BAGE, J.S.C)

This appeal is against the judgment of the Court of Appeal, Benin Division delivered on the 28th day of May, 2015 which affirmed the judgment of the Federal High Court Warri suit No. FHC/WR/CS/59/2014, delivered on the 31st day of October, 2014. The Court of Appeal upheld the decision of the trial court and dismissed the appellant’s appeal. The lower court held inter alia, that the trial court had jurisdiction to entertain the suit and that the respondents cause of action was not statute barred, and that there is continuance in the suppression of Ughelli South State Constituency 1.

Aggrieved by the decision of the court below, the appellant filed a notice of appeal dated 14th day of August, 2015 containing (4) four grounds of appeal.

The facts that gave rise to this appeal are that, the respondents commenced the action at the Federal High Court Warri on 12th May, 2014 against the appellant. The respondents raised four (4) questions and claimed the following reliefs:-

“1. A Declaration that by virtue of the mandatory provisions of Sections 6, 36, 91, 112 of the 1999 Constitution and other enabling laws in that behalf, the Delta State House of Assembly presently consisting twenty-nine (29) members which less than three (3) or four (4) times the number of seats which Delta State has in the national Assembly is not properly Constituted or composed.

2. A Declaration that the appellant does not have any power and/or discretion whatsoever to suppress the existing Ughelli- sought State Constituency 1 with Constituency Code No. SC/33/DT in the Delta State House of Assembly lawfully created and approved by the National Assembly (as contained in the National Electoral Commission Delta State Voters and Candidate Education know your Senatorial Districts, Federal and State Constituencies and Electoral Wards in Delta State House of Assembly – 1st Assembly

with specific reference to No. 4 and 23 thereof) by omitting, failing, refusing and/or neglecting to include the Ughelli South State Constituency 1 with Constituency Code No. SC/33/DT in the approved list of state constituencies previously suppressed as attached to the appellant’s letter date of 2nd June, 2004 and addressed to the clerk of the National Assembly, National Assembly Complex, Abuja.

3. A Declaration that the appellant’s omission, failure, refusal and/or neglect to restore and recognize the Ughelii South State Constituency 1 with Constituency code No. SC.33/DT by including it in the approved list of state constituencies previously suppressed as attached to the Appellant’s letter dated 2nd June, 2004 and addressed to clerk of the National Assembly, National Assembly Complex, Abuja is unlawful, illegal, null, void and contrary to the mandatory, clear and express provisions of Sections 91, 112 of the 1999 Constitution; thereby constituting a flagrant violation of the constitutional rights of the good people of Ughievwen clan (that is Jeremi Wards I-V) comprising the Ughelli – South State Constituency 1 with Constituency Code SC/33/DT to be adequately represented in the Delta State House of Assembly.

4. A Declaration that the Appellant is enjoined by the mandatory provisions of Section 6, 36, 91 and 112. Of the 1999 Constitution and other enabling laws in that behalf, to restore forthwith the long – suppressed Ugheli South State Constituency I with Code No. SC.33/DT in the Delta State House of Assembly and Conduct election into the said Ughelli South State Constituency 1 with Constituency code No. SC/33/DT in the Delta State House of Assembly.

5. A declaration that by virtue of the mandatory provisions of Section 6, 36,112 and 1999 Constitution and other enabling laws in that behalf, the constitution/statutory duties of the appellant in restoring the long suppressed Ughelli South State Constituency 1 with constituency code No. SC/33/DT In the approved list of the State Constituencies previously suppressed as attached and to the appellant’s letter dated 2nd June, 2004 and addressed to the clerk of the National Assembly, National Assembly Complex, Abuja is not subject to further review or approval by the National.

6. An order directing and compelling the appellant either by herself, agent, servant, privies, surrogates, staff or any person acting through the appellant and/or on the instruction or directive of the appellant to restore forthwith, the Ugheili South State Constituency 1 with Constituency code No. SC.33/DT in the Delta State House of Assembly in Ughelli south Local Government Area of Delta State of Nigeria Comprising the Ughievwen Clan (that is Jeremi I-V) so as to bring the composition and numbers of the created, delineated and delimited constituencies in the Delta State House of Assembly in compliance with the mandatory provisions of Section 91 and 112 of the 1999 Constitution and other enabling laws in that behalf.

7. An order directing and compelling the appellant either by herself, agent, servants, privies, surrogates, staff or any person acting through the appellant and/or on the instruction or directive of the appellant to conduct election forthwith into the Ughelli South State constituency 1 with constituency code No. SC 33/DT in the Delta House of Assembly for the purpose of electing the he member representing the Ughelli South State constituency 1 with constituency code No. SC/33/DT. In the Delta State House of Assembly and bring the composition and numbers of the created, delineated and delimited constituencies in the Delta State House of Assembly in compliance with the mandatory provisions of Sections 91 and 112 of the 1999 Constitution and other enabling laws in that behalf.

8. A perpetual injunction restraining the appellant either by herself, agent, servants, privies, surrogates, staff or any person acting through the appellant and/or on the instruction or directive of the appellant from suppressing or further suppressing the Ugheli South State Constituency with Constituency code No. SC/33/DT in the Delta State House of Assembly in Ughelli south Local Government Area of Delta State of Nigeria comprising the Ughievwen clan (that is, Jeremi Ward I – V) or doing anything howsoever that will have the adverse effect of suppressing and/or undermining the Ugheiii south Constituency with constituency code No. SC.33/DT with a view to depriving the good people of Ughelli south State Constituency 1, with constituency code No. SC.33/DT adequate representation in the Delta State House of Assembly or any other elections whatsoever in the Federal Republic of Nigeria.”

The originating summons was supported by a 63 Paragraphs affidavit and a number of documents.

The appellant, in reaction to the respondent’s originating processes, filed a notice of preliminary objection wherein it contended that the jurisdiction of the trial court to entertain the suit was statute barred, having not been instituted within three months after the accrual of the cause of action. It is contended, therefore, that the suit was incompetent.

In his consolidated judgment of 31st October, 2010, the learned trial judge dismissed the appellant’s preliminary objection and held that the complaints of the respondents is a continuous act which removes the protection granted by Section 2 (a) of the Public Officers Protection Act. The court further granted all the reliefs except prayer 8 sought by the respondents.

Aggrieved by the judgment of the learned trial judge, the appellant filed a notice of appeal dated 4th December 2014 containing four (4) grounds of appeal.

After hearing the argument from both parties the Court of Appeal delivered it’s judgment on 28th May 2015, wherein it affirmed the decision of the trial court and dismissed the appellant’s appeal.

Dissatisfied, appellant has further appealed to this court vide a notice of appeal dated 14th August, 2015, containing four (4) grounds of appeal.

In his brief of argument, the learned counsel for the appellant formulated the following issues for determination.

ISSUE No. 1

Whether the appellant is not protected by Section 2 (a) of the Public Officers Protection Act Cap. P. 41 of the Federation of Nigeria, 2004 having regard to the circumstances of this case (Ground 1).

ISSUE No. 2

Whether the Court of Appeal was right in the circumstances of this case in holding that there is no further need nor is it necessary for the appellant restoring the suppressed constituency for the appellant restoring the suppressed Constituency to resort to Section 115 of the Constitution dealing with the alteration of state constituency boundaries in accordance with Section 114 of the Constitution (Ground 2).

ISSUE No. 3

Whether the Court of Appeal was right in relying on its judgment in the case of OJU LOCAL GOVERNMENT V. INEC (2007) 14 NWLR (Pt. 1054) 242 having regard to the circumstance of this case (Ground 3).

ISSUE No. 4

Whether the Court of Appeal was right on ascribing probative values to Exhibits 3, 4, and 5 and in holding that the constituency under consideration had been in existence along with other constituencies with election held therein prior to the year 1999 when appellant excised the respondent and refused to conduct elections into the constituency (Ground 4).

On the other-hand, the respondent in their brief formulated the same four issues with that of appellant.

Issue No. 1, as raised by the appellant herein challenges the competence of the suit, which the appellant has contended that by virtue of Section 2 (a) of the Pubic Officer’s Protection Act Cap. P. 41, laws of the Federation of Nigeria, .2004, the respondents suit is- statute barred.

The learned counsel for the appellant contended that at the hearing, the court found that the difference between the time the Ughelli south State Constituency 1 was excised and suppressed and the time of coming-in to life the action was about 15 years (period in excess of the three months) the Act allocated for commencement for any Act against the public officer, the lower court for this fact alone should not have proceeded to hold that there is continuance in the suppression of the said Ughelli-South State Constituency 1.

In other words it is the contention of the appellant that the court below having found that the respondents commenced their joint action against the appellant months in excess of the 3 months the Act allowed for commencement of action for any act, neglect or default against any wrong doing the court ought to have dismissed the suit of the respondents.

He argued that this court per Adekeye, JSC in the case of AJAYI VS ADEBIYI (2012) 11 NWLR (Pt. 1310) 137 at 169 has this to say on the essence of statute of limitation.

“The essence of limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had elapsed. An action which is not brought within the prescribed period offends the provisions of the law and does not give rise to a cause of action.

The yardsticks to determine whether an action is statute barred are:-

A) The date when the cause of action accrued.
B) The date of commencement of the suit as indicated in the writ of summons,
C) Period of time prescribed to bringing an action to be ascertain from the statute in question. Time begins to run for the purposes of limitation law from the date the cause of action accrues – reliance was put on SULGRAVE HOLDINGS INC. VS FGN (2012) 17 NWLR (Pt. 1329) 309.

The learned counsel has submitted that the decision of the lower court on this threshold issue of statute of limitation applicable to the respondent’s suit has completely defeated the purpose and intendment of Section 2 (a) of the Public Officers Protection Act, 2004. The respondents suit ex facie was premised on a spent cause of action while the decision of the lower court on this issue is contrary to the binding decision of this court on such issue. In AJAYI VS ADEBIYI (2012) 11 NWLR (Pt.1310) 137 at pages 196 – 197 this court has this to say:-

“On the strong position of the appellant that the action was statute barred and could not really take off, I will want to recapture the essence of a statute of limitation as per Tobi, JSC (as he then was) states in MERCAN LIFE BANK (NIG) LTD V. FETECO LTD (1998) 3 NWLR (Pt. 540) 143 at 156 paragraphs G – H as follows:-

A statute of limitation of action designed to stop or avoid situation, where a plaintiff can commence action anytime he feels like doing so, even when human’s memory would have normally faded and therefore failed. Putting it in another language, by the statute of limitation a plaintiff has no freedom of air to sleep or slumber and wake up at his own time to commence an action against the defendant. The different statute of limitation which are essentially founded on the principle of equity and fair play will not avail such a sleeping or slumbering plaintiff.”

The learned counsel for the respondents on this issue submitted that the court below correctly held that the time for the institution of the action by the respondents had not elapsed or expired as this could only expire on the cessation of the alleged wrong, that is, the suppression of Ughelli south state constituency 1, he submitted that since 1998 till 2011, the appellant has been conducting her general elections into Delta State House of Assembly without the Ughelli south State Constituency 1. He submitted that the appellant’s act of excising , suppressing the Ughelli south State House of Assembly which is the cause of action still continues and subsist till date. It has not ceased at all. He relied on the provision of Section 2 (a) of Public Officer’s Protection Act where the Section provided for an exception in case of continuance of damage or injury, the action shall be within three months next after the ceasing thereof. The learned counsel urged this court not to disturb the concurrent findings of facts of the lower courts.

The learned counsel further submitted that where a public officer acted in bad faith and with no semblance of legal justification in the performance of his public duty, he cannot enjoy the protection under Section 2 (a) of the Public Officers Protection Act. He argued that the appellant’s act of excising the Ughelli south State Constituency is unlawful, illegal and unconstitutional. There is no law which empowers or authorizes the appellant to excise, suppress and abandon the Ughelli South State Constituency 1. He put reliance on the case of CBN VS OKOJIE (2004) 10 NWLR (Pt. 882) pp. 488 at PP 523 B – D.

The question here is whether the respondents have not failed to bring their action within the time stipulated by law. They are confronted by Section 2 (a) of the Public Officers Protection Act, Cap p14, laws of the Federation, 2014 it states:-

“Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any act or law or of any public duty or authority or in respect of any alleged right or default in the execution of any such act, law, duty or authority, the following provision 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 injury within three month next after ceasing thereof.”

It is the contention of the appellant that the Respondents suit statute barred by virtue of Section 2 (a) of the foregoing law.

The court below in its judgment at pages 204 – 205 of the record stated that the simplest interpretation that anybody can give to the action of the defendant/respondent in relation to this action is that the action is a continuous one and has not ceased. This is so because since the restoration of constitutional democracy in the country in 1999 and elections into various constituencies is a continuous process. The act of suppressing Ughelii south State Constituency 1 by the defendant cannot be said to have been closed or ceased but must be seen as live issue, I so hold.”

With respect to the decision of the trial judge above, his opinion is entirely in contradiction with the decision of this court in INEC VS OGBADIBO LOCAL GOVERNMENT (2016) 3 NWLR (Pt. 1498) where the court held that:-

“Continuance of injury or damage means continuance of the legal injury and not merely continuance of the injurious effects of a legal injury. In this case, the legal injury complained of by the respondent was the excision of Otukpa State Constituency in 1996. The act was completed in 1996. The fact that the respondents have since the excision not been represented in their State House of Assembly constitutes the effect of the legal injury they allegedly suffered by that singular act. The legal injury occurred once. What the trial court and the Court of Appeal relied on to give judgment in favour of the respondents was the continuance of the injurious effect of the legal injury. In the circumstances, both courts were wrong when they respectively held that Section 2 (a) of the Public Officer’s Protection Act did not apply to the respondent’s suit.”

This issue is very well illustrated by the dictum of Dickson J., in MICHAEL OBIEFUNA VS ALEXANDER OKOYE (1961) All NLR 357 at 360 and 362. “Continuance of injury or damage means continuance of legal injury, and not merely continuance of the injurious effect of a legal injury. The continuance of the injurious effect of an accident is not a continuance of the injury or damage within the meaning of the Public Authorities Protection Act 1993.”

See also on this, RAWLINGS VS GILLINGHAM (1932) 146 LT 486; FREEBORN VS LEEMING (1926) 1 KB 160 and CUREY VS METROPOLITAN BOROUGH OF BERMONDSEY (67 JP) 447.

In the case at hand, the excision of Ughelli South State Constituency 1 for the elections conducted between 1999 till date was the effect of the excision by the appellant in 1999. The court having found that the constituency was excised in 1999 and, without any further affidavit evidence on record, disclosing continuous legal damage, failed to be guided by a number of judicial authorities of this court on statute of limitation thereby arriving at a perverse decision on this issue.

Similarly this court in INEC VS . OGBADIBO LOCAL GOVERNMENT (supra) stated that-

“The essence or effect of Section 2 (a) of the Public officers Protection Act is that an action against a public officer in respect of any Act done in pursuance or execution of any Act or Law or of a public duty or default of same can only be commenced within three months next after the act, neglect or default complained of except in case of continuance of damage or injury in which case, the person aggrieved must institute the action within three months next after the cessation of the damage or injury complain of. In other words, the section extinguishes the cause of action if it is commenced after three months except where there is continuance of injury or damage for which a fresh cause of action arises from time to time as often as damage or injury occurs. In this case, the respondents stated in their affidavit that the appellant excised and suppressed the Otukpa State Constituency in 1996 but they commenced their suit in 2011; that is, 15 years in excess of the three months the Act allows for commencement of proceedings. The respondents, however, did not present evidence that there was continuance of damage or injury to them. In the circumstance, the respondents’ cause of action was statute-barred.”

Paragraph 29 of the respondents affidavit in support of the originating summons disclose in plain terms that it was in 1999 the Ughelli south State Constituency 1 was excised and suppressed, but the respondents commenced their action on 12th May 2014, that is 15 years in excess of three months the Act allows for commencement of proceedings of this nature.

The limitation law does generally either of two things; it either bars the remedy without extinguishing the right or bars the remedy and at the same time extinguishes the right. Whichever effect it has will depend on the particular statute. However, there is a general consensus that all limitation laws have the effect of closing the doors of the court against the plaintiff.

In OLAOSEBIKAN VS R. A. WILLIAMS (1996) 5 NWLR (P. 449) the Court of Appeal in trying to explain w7hat amount to continuance of damage or injury under Section 2 (a) of Public Officer’s Protection Act stated that:-

“What the University of Ibadan or any other University might do as a result of the letters the respondents sent to them does not amount to continuance of damage or injury of the respondent defamatory publication concerning the appellant. It is only a concomitant effect of the action of the respondent.”

The essence or effect of the Public Officer Protection Act herein, is to extinguish the cause of action if it is commenced after the stipulated period, which is three months, subject to the exception provided for in Section 2 (a) of the Act. Thus where there has been a continuance of injury or damage, a fresh cause of action arises from time to time, as often as damage or injury is caused; see AREMO VS ADEKANYE (2004) All FWLR (Pt. 224) 2113 at 2132.

It is submitted by the respondents counsel that the lower court after examining carefully the exception in the limitation law correctly stated that there is continuance suppression of Ughelli South State Constituency 1 and that at the time of commencement of the action by the respondent it has not elapsed. This position taken by the respondents cannot be correct in view of the various facts averred in paragraph 29 of the respondent affidavit in support of the originating summons. See also INEC VS OGBADIBO LOCAL GOVERNMENT supra.

appellant. It is only a concomitant effect of the action of the respondent”.

The essence or effect of the Public Officer Protection Act herein, is to extinguish the cause of action if it is commenced after the stipulated period, which is three months, subject to the exception provided for in Section 2 (a) of the Act. Thus where there has been a continuance of injury or damage, a fresh cause of action arises from time to time, as often as damage or injury is caused; see AREMO VS ADEKANYE (2004) All FWLR (Pt. 224) 2113 at 2132.

It is submitted by the respondents counsel that the lower court after examining carefully the exception in the limitation law correctly stated that there is continuance suppression of Ughelli South State Constituency 1 and that at the time of commencement of the action by the respondent it has not elapsed. This position taken by the respondents cannot be correct in view of the various facts averred in paragraph 29 of the respondent affidavit in support of the originating summons. See also INEC VS OGBADIBO LOCAL GOVERNMENT supra.

In ATUNRASE VS SUNMOLA (1985) 2 NWLR (Pt1) 105 at 120 this court giving reasons why persons with good causes of action should pursue them with reasonable diligence, stated thus:-

“In all action, suits and other proceedings at law and in equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may therefore deny relief to a party who by his conduct has acquiesced or assented to the infraction of his right, or has led the opposite party responsible for or guilty of such infringement to believe that he has lived (sil) or abandoned his right.”

In the case of BOARD OF TRADE VS CAYSER IRVINE & CO. LTD (1927) A. C. 610 at 628, Lord Atkinson said:-

“The whole purpose of this limitation Act is to apply to person who have good causes of action which they could if so disposed, enforce, and to deprive them of power of enforcing them after they have lain by for the number of years respectively and omitted to enforce them. They are this deprived of the remedy which they have omitted to use.”

This court, in the case of AJAYI VS ADEBIYI (2012) 11 NWLR (Pt. 1310) 137 p. 169 paras. B – E on the essence of statute of limitation stated as follows:-

“The essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute, where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had passed. An action which is not brought within the prescribed period, offend the provision of the law and does not give rise to a cause of action. The yardstick to determine whether an action is statute barred are:-

a) The date when the cause of action accrued.
b) The date of commencement of the suite as indicated in the writ of summons.
c) Period of time prescribed to bringing an action to be ascertained from the statute in question. Time begins to run for the purposes of the limitation law from the date the cause of action accrues.”

In AMADI VS INEC (2012) 4 NWLR Pt. 1345 PP 607 this court held that:-

“The conspicuous effect of a limitation law is that legal proceedings cannot be properly validly instituted after the expiration of the prescribed period. Also, the court is divested of its jurisdiction in the matter as it is no longer a live issue. It is dead in substance and in form. In the instant case, the Court of Appeal was under a statutory obligation and duty to hear and determine the appellant’s appeal before it within the time prescribed by Section 285 (7) of the 1999 Constitution as amended.”

See again on this, OSUN STATE GOVT. VS DALAMI (NIG) LTD. (2007) 9 NWLR (Pt. 1038) 66; CHIGBU VS TONIMAS (NIG) LTD (2006) 9 NWLR (Pt. 984) 189; SHETTIMA VS GONI (2011) 18 NWLR (Pt. 1279) 413; P.D.P. VS C.P.C. (2011) 17 NWLR (Pt. 1277) 485.

Further in HASSAN VS ALIYU (2010) 17 NWLR, this court held that:-

“where a public officer fails to act in good faith, or acts in abuse of office or maliciously, or with no semblance of legal justification, he will not be protected by the provision of Section 2 (a) of the Public Officers Protection Act as to three months time limit for commencement of action against him. In this case, however, the exceptions did not avail the appellant.”

See again on this LAGOS CITY COUNCIL VS OGUNBIYI (1969) 1 ALL NLR 297; CBN VS OKOJ1E (2004) 10 NWLR (Pt. 882) 488;

NWANKWERE VS ADEWUNMI (1966.) 1 SCNLR 356; OFFOBOCHE VS OGOJA L.G.A. (2001)16 NWLR (Pt. 739) 458.

In the case at hand, there is nothing to show that in acting the way appellant did, it acted in bad faith, maliciously or that its act was devoid of any legal justification. It is therefore clear that with the accrual of the cause of action in 1999 and the institution of the action on the 12th May 2014 a period of more than three months from the accrual of the cause of action, the action so instituted was caught by the provisions of Section 2 (a) of the Public Officers Protection Act and therefore incompetent.

In the light of the foregoing, I resolve this issue in favour of the appellant, I allow the appeal and set aside the findings of the two courts below on this issue, and accordingly strike out the suit.

Appeal Allowed.

EJEMBI EKO, JSC

I read in draft the judgment just delivered in this appeal by my learned brother, SIDI DAUDA BAGE, JSC I am in agreement with the judgment

I wish to add few comments in support of the judgment. The case of the Respondents, as the plaintiffs at the trial court, is that their UGHELI SOUTH STATE constituency code No. SC/33/DT existed until it was suppressed by the Civil Rule (Political Programme] Decree No. 1, 1996. That the Appellant, Independent National Electoral Commission (INEC), since 1999 consistently refused to acknowledge the existence of the constituency for the purpose of conducting elections to elect a member representing the constituency into the Delta State House of Assembly. And consequently, that the Delta State House of Assembly [DTHA], because no election has been conducted in the Suppressed constituencies in the State, has not been properly constituted, as required by Section 91 of the 1999 Constitution which provides thus –

“91. Subject to the provisions of this Constitution, a House of Assembly of a State shall consist of a three or four times the number of seats that state has in the House of Representatives divided in a way to reflect, as far as possible, nearly equal population: Provided a House of Assembly of a State shall consist of not less than twenty-four and not more than forty members”.

It was averred at the trial court that presently DTHA has only 29 members instead of 30 members, and that Delta State with 10 Federal Constituencies should have a minimum of 30 members. On this ground they posited that the DTHA, by dint of Section 91 of the Constitution, is not properly constituted because of the suppression of their constituency.

INEC, the only defendent at the trial court, had invoked the provisions of Section 2(a] of the Public Officers (Protection) Act, 2004 and raised its preliminary objection to the competency of the suit. Their contention was that the suit was thereby statute barred. The trial court overruled the objection. At pages 204 and 205 of the record of appeal, the trial court held that the act of suppressing the constituency could not be said to have been closed or ceased, but one to be seen as a continuing injury and therefore a live issue. It accordingly dismissed the preliminary objection. The appeal of INEC to the Court of Appeal was, on 28th May, 2015, dismissed. The decision of the trial court, delivered on 31st October, 2014, was affirmed, hence the further appeal to this Court.

The cause of action was the suppression of the Constitution by the 1996 Statute. Since then the Constituency had remained suppressed. My understanding of the verb suppress is that it means putting a stop to, or prohibiting or preventing (something) from being seen, heard of, known or discussed. See Black’s Law Dictionary 9th Ed; Oxford Advanced Learner’s Dictionary. Thus as admitted by the Respondents, as the plaintiffs, their constituency was forcefully, by statute, prevented or prohibited from existing since 1996, and since then it has never existed. 1 should think that what the legislature did in 1996 was a once-for-all-action act or action that stopped, prevented and/or prohibited the existence or further existence of the constituency. The statutory act of the suppression of the Constituency has produced the resultant or existing situation whereby the constituency that hitherto existed, no longer exists. The effect is the now non-existence of the Constituency. It was the enactment of the 1996 statute that was the cause of the present effect. It appears to me that the two courts below had confused the continuance of legal effect with continuance of legal injury.

The court below had, at pages 652 – 653 of the record of appeal, alluded to the continuation of the legal effect of the statutory suppression of the Constituency and held that it has resulted in the under-representation of the plaintiffs/respondents and the improper constitution of the DTHA. It also offered its panacea thus:

“The cure to this lapse is simple, it is for the appellant to employ the provisions of Section 112 of the 1999 Constitution and to comply with the mandatory provisions stipulated therein”.

This treatment or panacea does not address the issue: whether the suit as constituted was statute barred? The suit in my firm view is statute barred.

The cause of action was the suppression of the constituency by statute. It arose in 1996 at the promulgation of the Civil Rule (Political Programme) Decree, No 1, 1996. The legal effect was/is the immediate prohibition, prevention and/or ceasation of this constituency that, hitherto the promulgation of the Decree, existed. Section 2(a) of the Public Officers (Protection) Act provides –

“Where an action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any act or law or of any public duty or authority or in respect of any such act or law, duty or authority, 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 a case of continuance of damage or injury within three months next after the ceasing thereof.

There being no ambiguity in those clear provisions of the limitation statute, the courts below were in error when they failed, refused or neglected to hold that the suit of the Respondents, as plaintiffs at the trial court, was statute barred.

Let me comment briefly on the attempted panacea offered by the court below. I had earlier reproduced section 91 of the 1999 Constitution. I shall now reproduce Sections 112, 113, 114 and 115 of the same Constitution to show that the panacea offered by the court below was a mere scratch of an under dose. The Sections provide –

“112, Subject to the provision of Section 91 and 113 of the Constitution the Independent National Electoral Commission shall divide every state in the Federation into such number of State Constituencies as is equal to three or four times the number of Federal Constituencies within the State.

113. The boundaries of each State Constituency shall be such that the number of inhabitants thereof is as nearly equal to the population quota as is reasonably practicable.

114 -(1) The Independent National Electoral Commission shall review the division of every State into constituencies at intervals of not less than ten years, and may alter such constituencies in accordance with the provisions of this Section to such extent as it may consider desirable in the light of the review,

(2) The Independent National Electoral Commission may at any time carry out such a review and alter the constituencies in accordance with the provisions of this Section to such extent as it considers necessary in consequence of any alteration of the boundaries of the State or by reason of the holding of a census of the population of Nigeria in pursuance of an Act of National Assembly.

115. Where the boundaries of any State Constituency established under Section 112 of this Constitution are altered in accordance with the provisions of Section 114 of this Constitution, that alteration shall come into effect after it has been approved by each House of the National Assembly and after the current life of the House of Assembly”.

It is therefore clear that INEC alone cannot alter the number of the existing State Constituencies in each State without the concurrence of the National Assembly. What this means is that this suit against only the INEC, without the joinder of the National Assembly, would appear wrongly constituted.

Even if the Respondents, as the plaintiffs, were aggrieved by the omission, failure, refusal and/or neglect of INEC to include this particular Constituency in the list of suppressed constituencies it submitted to the National Assembly vide its letter dated 2nd June, 20041 still remain resolute in my view that this action taken out on 16th May, 2014 was statute barred, the action not having been instituted within 3 months after the said letter of 2nd June, 2004. Reliefs 2,3,4,5,6,7,&8, which are directly erected on the said omission, failure, refusal and/or neglect of INEC to include this particular constituency in the list of suppressed constituencies in the 2nd June, 2004 to the National Assembly for its bi-cameral approval, are frontally caught by Section 2(a) Public Officers (Protection) Act. And if that also is the cause of action there is no way the suit, including all the reliefs sought, can be saved from the purpose effect of the limitation provision of Section 2(a) of the Public Officers (Protection) Act.

In the computation of the period of limitation the court looks at the processes filed by the plaintiff, which include the writ of summons, statement of claim or statement of facts, to see therefrom when the wrong giving rise to the cause of action was allegedly committed and thereafter comparing it with the date on which the writ of summons was filed. If the period exceeds the period of limitation, then the suit is statute barred. See FRED EGBE v. ADEFARASIN (1987) 18 NSCC (pt. l) 1 at page 17. The instant suit is clearly statute barred. The time, from the statutory suppression of the Constituency in 1996 effected by Civil Rule (Political Programme) Decree No. 1, 1996 to 16th May, 2014, is a period exceeding 18 years. The time, from 2nd June, 2004, when it is alleged that INEC refused, omitted or neglected to include the constituency in the list of suppressed constituency submitted to the National Assembly for approval of their reinstatement up to 16th May, 2014, is a period exceeding 10 years. INEC had made no pretensions that, by virtue of its suppression no elections in 1999,

2007 and 2011, to elect constituency representative at the DTHA would be conducted is this suppressed constituency. From the date of the election in 2011 to the date this suit was filed is a period exceeding 3 months permitted by the Public Officers (Protection) Act. The suit is irredeemably statute barred by operation of Section 2(a) Public Officers (Protection) Act. The suit is accordingly struck out. The trial court, and by extension the Court of Appeal, therefore acted ultra vires when they entertained the suit that clearly was statute barred. I allow the appeal. The findings of the two courts below are hereby set aside.

EJEMBI EKO,
JUSTICE, SUPREME COURT.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC:

This appeal is against the judgment of the Court of Appeal, Benin Division delivered on 28/5/2015 affirming the judgment of the Federal High Court, Warri delivered on 31/10/2014.

By an originating summons filed on 12/5/2014, the respondents as plaintiffs sought the determination of four questions and claimed eight reliefs including reliefs 1, 4, 6 & 7 to wit:

“1. A DECLARATION that by virtue of the mandatory provisions of Sections 6, 36, 91, 112 of the 1999 Constitution, and other enabling laws in that behalf, the Delta State House of Assembly presently consisting of twenty-nine (29) members (which is less than three (3) or four (4) times the number of seats which Delta State has in the National Assembly) is not properly constituted or composed. 4. A DECLARATION that the defendant is enjoined by the mandatory provisions of Sections 6, 36, 91, 112 of the 1999 Constitution and other enabling laws in that behalf, to restore forthwith the long-suppressed Ughelli-South State Constituency 1 with Constituency Code No. SC/33/DT in the Delta State House of Assembly and conduct election into the said Ughelli-South State Constituency 1 with Constituency Code No. SC/33/DT for the purpose of electing the member representing the Ughelli-South State Constituency 1 with Constituency Code No. SC/33/DT in the Delta State House of Assembly.

6. AN ORDER DIRECTING AND COMPELLING the defendant either by herself, agents, servants, privies, surrogates, staff or any person acting through the defendant and/or on the instruction or directive of the defendant to restore, forthwith, the Ughelli-South State Constituency 1 with Constituency Code No. SC/33/DT in the Delta State House of Assembly in Ughelli-South Local Government Area of Delta State of Nigeria comprising the Ughievwen Clan (that is, Jeremi I – IV) so as to bring the composition and numbers of the created, delineated and delimited Constituencies in the Delta State House of Assembly in compliance with the mandatory provisions of Sections 91 and 112 of the 1999 Constitution and other enabling laws in that behalf.

7. AN ORDER DIRECTING AND COMPELLING the defendant either by herself, agents, servants, privies, surrogates, staff or any person acting through the defendant and/or on the instruction or directive of the defendant to conduct election forthwith into the Ughelli-South State Constituency 1 with Constituency Code No. SC/33/DT in the Delta State House of Assembly for the purpose of electing the member representing the Ughelli-South State Constituency 1 with Constituency Code No. SC/33/DT in the Delta State House of Assembly so as to fill the vacancy in the Delta State House of Assembly and bring the composition and members of the created, delineated and delimited Constituencies in the Delta State House of Assembly in compliance with the mandatory provisions of Sections 91 and 112 of the 1999 Constitution and other enabling laws in that behalf.”

It was supported by a 63-paragraph affidavit with several exhibits attached thereto. The appellant filed a preliminary objection thereto challenging the jurisdiction of the court to entertain the suit on the ground that the suit was statute-barred having not been instituted within three months after the accrual of the cause of action.

The trial court dismissed the objection on the ground that the action, which forms the basis of the respondents’ complaint is a continuing act and therefore the provision of Section 2(a) of the Public Officers’ (Protection) Act is not applicable. All the respondents’ reliefs except relief 8 were granted. The lower court, as stated earlier affirmed the decision. The appellant is still dissatisfied and has further appealed to this court.

The respondents’ case as reflected particularly in paragraphs 25 – 33 of the affidavit in support of the originating summons is to the following effect: That by virtue of Sections 91 & 112 of the 1999 Constitution the appellant, INEC is mandated to delineate, delimit and divide every State of the Federation including Delta State into such numbers of State Constituencies, as is equal to 3 or 4 times the number of Federal Constituencies within the State. That Delta State consists of 10 Federal Constituencies and therefore the Delta State House of Assembly can only be properly constituted if it consists of a minimum of 30 or maximum of 40 State constituencies and that each State constituency is entitled to return one member who shall be directly elected to the Delta State House of Assembly. That at the inception of Delta State in 1998 or thereabout, INEC inherited the State and Federal electoral constituencies which included Ughelli-South State Constituencies I & II and Ughelli-South which were created State Constituencies I & II by the now defunct National Electoral Commission (NEC). That Ughelli-South State Constituency I remained in existence until sometime- in 1998 when it was excised and suppressed by the appellant.

That in the general election conducted into the Delta State House of Assembly in 1999, Ughelli-South State Constituencies I and II were merged into one State Constituency. That in the general elections of 1999, 2003, 2007 and 2011 and to date, the Ughelli-South State Constituency I was continually suppressed while those who emerged in each election as representing Ughelli-South State constituency were from Ughelli-South State Constituency II with Constituency Code No. SC/34/DT. The 1st plaintiff averred that he is desirous of being elected as the Honourable member representing Ughelli-South State Constituency I with Constituency Code SC/33/DT, hence the need for the court to grant his reliefs.

Both the trial court and the court below were of the opinion that the injury complained of by the respondents is a continuing one and therefore Section 2(a) of the Public Officers (Protection) Act Cap. P.41 Laws of the Federation of Nigeria, 2004 is not applicable and that the preliminary objection of the appellant was not sustainable. In other words, that the action was not statute-barred.

On further appeal to this court, the appellant has raised 4 issues for determination as follows:

“1. Whether the appellant is not protected by section 2(a) of the Public Officers Protection Act Cap. P.41 Laws of the Federation of Nigeria, 2004 having regard to the circumstances of this case.
(Ground 1)

2. Whether the Court of Appeal was right in the circumstances of this case in holding that there is no further need nor is it necessary for the appellant restoring the suppressed Constituency to resort to Section 115 of the Constitution dealing with the alteration of State Constituency boundaries in accordance with Section 114 of the Constitution.
(Ground 2)

3. Whether the Court of Appeal was right in relying on its judgment in the case of Oju Local Government v. INEC (2007) 14 NWLR (pt.1054) 242 having regard to the circumstances of this case.
(Ground 3).

4. Whether the Court of Appeal was right in ascribing probative values to Exhibits 3, 4 and 5 and in holding that the Constituency under consideration had been in existence along with other constituencies with election held therein prior to the year 1999 when appellant excised the respondents and refused to conduct elections into the Constituency. (Ground 4).

At this juncture, I must state that before now my learned brother, Sidi Dauda Bage, JSC, had obliged me with a copy of the judgment just delivered. I am in complete agreement with his reasoning and conclusion that the appeal is meritorious and should be allowed. My comments hereunder are in demonstration of my support of the lead judgment and for emphasis. They are in respect of Issue 1.

Learned counsel for the appellant submitted that from decided authorities, in order to determine whether an action is statute-barred, the court will look at the writ of summons and statement of claim to determine when the wrong which gave rise to the plaintiff’s cause of action was committed and compare it with the date of filing of the writ of summons or originating summons, as the case may be. That in the instant case, the Ughelli-South State Constituency I was excised and suppressed in 1998 while the action was not filed until 12/5/2014, well over 15 years after the cause of action accrued. Relying on Sylva Vs INEC (2015) 16 NWLR (Pt.l486) 576 @ 630 and Ajayi Vs Adebiyi (2012) 11 NWLR (Pt.1310) 137 @ 169, he submitted that the respondents’ suit filed many months outside the 3 months provided for in Section 2(a) of the Public Officers (Protection) Act, was statute-barred and therefore incompetent.

He argued that the finding of the court below to the effect that the injury complained of was a continuous act in respect of which time did not run has the effect of defeating the essence of the limitation provided for under Section 2(a) of the Public Officers (Protection) Act. He argued that the respondents’ cause of action was spent, as the Isoko-North State Constituency I was extinguished pursuant to Section 2 of the Transition to Civil Rule (Political Programme) Decree No. 1 of 1995. He submitted that the suppression occurred once in 1998 and that non-conduct of election into the constituency in subsequent elections cannot be said to amount to continuous suppression. He referred to the recent decision of this court in INEC Vs Qgbadibo Local Govt. & Ors now reported in (2016) 3 NWLR (Pt.1498) 167 & 205 B – G in urging the court to hold that the suit is statute-barred and to strike out same.

In response, learned counsel for the respondents contends that the act of excising, suppressing and abandoning Ughelli-South State Constituency No. I with Constituency Code No. SC/33/DT in the conduct of elections into the Delta State House of Assembly still continues and subsists till date. He submitted that in the circumstances Section 2(a) of the Public Officers (Protection) Act does not avail the appellant. He urged the court to uphold the concurrent findings of fact by the two lower courts to the effect that the averments in paragraphs 29, 30, 31, 33, 34, 50 and 56 of the affidavit in support of the originating summons disclose the continuous suppression of the Constituency in dispute. He argued that the findings have not been shown to be perverse and should not be disturbed by this court.

He sought to distinguish the facts of INEC Vs Ogbadibo LG & Ors (supra) from the facts of this case on the ground that in the instant case the respondents had specifically deposed to facts showing that the suppression of the Constituency continues till date. He submitted that in Ogbadibo’s case there were no averments showing the continued suppression of the constituency. He also noted that the court held that where there is continuance of injury or damage, a fresh cause of action arises from time to time as often as damage or injury is caused. That in Ogbadibo’s case this court found that in the absence of evidence of continuous damage, the cause of action had long ceased since 1996 when the Otukpa State constituency was excised, the suit filed on 25/10/2011 and was therefore statute-barred.

He submitted further the Public Officers (Protection) Act will not apply where the public officer acted in bad faith and without legal justification, as in this case. He relied on several authorities including Egbe Vs Alhaji (1990) SCNJ 41 & 68;

C.B.N. Vs Okojie (2004) 10 NWLR (Pt. 882) 488 @ 523 B – D; Offoboche Vs Ogoja L.G.. (2001) 16 NWLR (Pt.739) 458 @ A – D

Section 2(a) of The Public Officers (Protection) Act provides:
“where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority/or in respect of any alleged neglect or default in the execution of such Act, Law, duty or authority, the following provisions shall have effect –
(a) Limitation of time –
The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within three months next after the ceasing thereof.”

The effect of the above provisions as with any other Limitation Laws is to foreclose the right of action of a litigant if his claim is not initiated within the stipulated time. In other words, although he might have a competent cause of action, his right to ventilate his grievance before a court of law may be curtailed by the provisions of a statute of limitation such as the Public Officers (Protection) Act. See: Aremo II Vs Adekanye (2004) 13 NWLR (Pt.891) 572; Ekeogu Vs Aliri (1991) 3 NWLR (Pt.179) 258; Egbe Vs Adefarasin (No.2) (1987) 1 NWLR (Pt.47) 1; Ibrahim Vs Lawal & Ors (2015) 17 NWLR (Pt.1489) 490.

It is settled law that for the purpose of the limitation of action, time begins from the moment the cause of action arose or accrued. Time begins to run from the time when there is in existence a person who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed. See: Hassan Vs. Aliyu (2010) 17 NWLR (Pt. l223) 547,

In paragraph 28 of the affidavit in support of the originating summons, it is averred as follows:

“The Ughelli-South State Constituency I with Constituency Code No. SC/33/DT created by the defendant’s predecessor – National Electoral Commission (NEC) has been existing intact alongside other Constituencies in the Delta State House of Assembly. It was in 1998 or thereabout when the defendant was preparing to conduct the general election into the Delta State House of Assembly that the Isoko-North State Constituency Code No. SC/17/DT was excised and suppressed by the defendant.”
(emphasis mine)

It is clear from the averment above that in 1998 when the Ughelli-South State Constituency I was excised or suppressed, there was in existence a person who could be sued (the appellant herein) and all the facts had happened that were material to be proved to entitle the respondents to pursue their grievance in court. They failed or neglected to take any steps to redress the wrong allegedly done to them until 12th May 2014, more than 15 years after the cause of action accrued. It is correct, as submitted by learned counsel for the respondents that the continuance of the damage or .injury constitutes an exception to the general rule. See: Obiefuna Vs Okoye (1961) ALL NLR 357 & 360: Olaosebikan Vs Williams (1996) 5 NWLR (Pt.449) 437 @ 456 – 457 D -H. The issue is whether such continuation of injury has been established in the circumstances of this case.

In my concurring opinion in the recent decision of this court in INEC Vs Qgbadibo Local Govt. (2016) 3 NWLR (Pt.1498) 167 @ 205 B – G, I stated as follows:

“The continuance of the damage or injury constitutes an exception to the general rule. It was held in Obiefuna v. Okoye (1961) All NLR 357 @ 360 (1961) 1 SCNLR 144 that:

‘continuance of injury or damage means continuance of the legal injury and not merely continuance of the injurious effects of a legal injury/

See also: Olaosebikan v. Williams (1996) 5 NWLR (Pt. 449) 437 @ 456 ~ 457, D – H.

Two salient facts are not in dispute. The first, as averred in paragraph 3(c) of the affidavit in support of the originating summons is that the Otukpa State Constituency was excised in 1996. The second is that the originating summons was filed on 25th October 2011, fifteen years later. The legal injury complained of by the respondents was the excision of Otukpa State Constituency in 1996. The act was complete in 1996. The fact that the respondents have since the excision not been represented in their State House of Assembly constitutes the effect of the legal injury they allegedly suffered by that singular act. The legal injury occurred once. The respondents therefore ought to have instituted their action within three months of the excision. Having slept over their rights for fifteen years, by virtue of section 2(a) of the Public Officers Protection Act, they lost the right to enforce their cause of action by judicial process. The suit was statute-barred and the trial court lacked jurisdiction to entertain it. Similarly the lower court lacked jurisdiction to entertain the appeal arising from the incompetent proceedings.”
(Emphasis mine)

See also per Okoro, JSC at 209 – 210 B – D.

The respondents before us have sought to distinguish the facts of INEC Vs Ogbadibo LG. (supra) from the facts of this case on the ground, inter alia, that facts alluding to the continuation of the injury were deposed to, as opposed to Ogbadibo’s case where there was no evidence of the continuing injury. I adopt and rely on my finding in Ogbadibo’s case reproduced above in respect of the instant appeal. Although the respondents averred that the Ughelli-South State Constituency I was continuously suppressed in 1999, 2003, 2007, 2011 and till date, the fact of the matter is that the excision occurred only once in 1998 and they took no steps to seek redress at the time. The act was complete in 1998. I am therefore of the considered view that the exception to Section 2(a) of the Public Officers (Protection) Act did not avail them.

The effect of the failure of the respondents to institute their action at the trial court within three months of the excision or suppression of Ughelli-South State Constituency I with, State Constituency Code SC/33/DT is that they lost their right to judicial relief. The suit filed on 12/5/2014, more than 15 years after the cause of action accrued was statute-barred and the trial court had no jurisdiction to entertain it.

This is therefore a proper situation in which to interfere with the concurrent findings of the two lower courts.

For these and the more elaborate reasons advanced in the lead judgment of my learned brother, Bage, JSC, I hold that the appeal is meritorious and is accordingly allowed by me.

I abide by the consequential orders made in the lead judgment including the order for costs.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN
JUSTICE, SUPREME COURT

S.O. IBRAHIM ESQ. for the appellant with Alhassan A. Umar Esq., Okechukwu Okeke Esq., and Bashir M. Abubakar Esq.

E.L. AKPOFURE, SAN for the respondents in SC.705/2015 with V.O. Idiapho Esq. and E.M. Kpuwhara (Miss).

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