JIMOH v. A-G OF THE FEDERATION & ANOR
(2022)LCN/16958(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, August 12, 2022
CA/A/643/2017
Before Our Lordships:
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Muhammed Mustapha Justice of the Court of Appeal
Between
HAMEED AJIBOLA JIMOH ESQ APPELANT(S)
And
1. ATTORNEY-GENERAL OF THE FEDERATION 2. FEDERAL MINISTRY OF JUSTICE, FCT. ABUJA (FOR ITSELF AND ON BEHALF OF ALL PUBLIC INSTITUTIONS WITHIN THE MEANINGS OF THE FREEDOM OF INFORMATION ACT, 2011) RESPONDENT(S)
RATIO
WHETHER OR NOT THE LEGAL RIGHT TO ENFORCE AN ACTION IS LIMITED BY STATUTE OF LIMITATION
A statute of limitation removes the right to action, the right of enforcement, right to judicial relief and leaves the party with a bare and empty cause of action which cannot be enforced. The cause of action becomes extinguished when it is barred by the operation of the Limitation law and it can no longer be maintained in the Courts.
It is trite and settled that a legal right to enforce an action is not in perpetuity but generally limited by Statute. See the cases of ADEOSUN V. JIBESIN 2001 14 WRN 706, ELABANJO V. DAWODU 2006 15 NWLR P. 97, EGBE V. ADEFARASIN NO. 2 1987 1 NWLR PT. 47 1 and AKIBU V. AZEEZ 2003 5 NWLR PT. 814 643 amongst a host of others. PER WILLIAMS-DAWODU, J.C.A.
THE OBJECTIVE OF LIMITATION OF ACTION
The objective and intendment of limitation of time with respect to institution of action accords with fairness and conforms with the reality of human society, as it is geared to protect Defendants from embarrassment where witnesses are no longer available for many reasons, necessary documents could be out of circulation, lost, destroyed and are impossible to come by even in the archives etc. See the cases of SOSAN V. ADEMUYIWA 1986 3 NWLR PT. 27 241, ADEOSUN V. JIBESIN Supra, NZE BERNARD CHIGBU V. TONIMAS NIG. LTD. & ANOR 2006 LPELR-846 SC, ELABANJO V. DAWODU Supra, AKIBU V. AZEEZ Supra and SHELL PETROLEUM DEV. COY. LTD. V. CHIEF GOODLUCK C. R. MEBURU 2013 LPELR – 21889 CA. PER WILLIAMS-DAWODU, J.C.A.
THE DEFINITION OF A CAUSE OF ACTION
A cause of action is a combination of facts and circumstances which give rise to a right to sue or file a claim in Court for remedy. It includes all the things which are necessary to give a right of action and every material fact which has to be proved to entitle the Plaintiff to succeed.
To determine whether or not a matter is caught by the period of limitation, the Court looks at the time the cause of action arose and compares it with when the writ of summons was filed. If the time of the writ is beyond the period allowed by the Limitation Law, then the action is Statute barred. See the cases of MILAD EKITI STATE V. ALADEYELU 2007 14 NWLR PT. 1055 P. 619 and OKENWA V. MILITARY GOV. IMO STATE 1997 6 NWLR PT. 507 154. Statute of limitation begins to run from the moment/the date the cause of action arises. PER WILLIAMS-DAWODU, J.C.A.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court Abuja, delivered on May 5th 2017 by Hon. Justice A. I. Chikere wherein the Appellant’s (the Applicant at the Court below) suit was declared statute barred.
The brief gist of the instant appeal is that the Appellant on July 18th 2016 desired the Bye-Law of Bwari Area Council of the Federal Capital Territory (FCT), Abuja and could not get it on the Bwari Council’s website. He then visited the Legal Unit of the Council as well as its Work Department still in search of the said law and they could not avail him a copy. He further visited the websites of other Public Institutions such as the Federal Ministry of Justice, the 2nd Respondent (also 2nd Respondent at the Court below), Corporate Affairs Commission (CAC), Economic and Financial Crimes Commission (EFCC), Joint Admission and Matriculation Board (JAMB), National Pension Commission (PENCOM) and a few others, according to him without any success to access information as prescribed under the Freedom of Information Act 2011. The Appellant then sent a petition (Exhibit A) alleging breach of the provisions of the Freedom of Information Act by the Respondents to the 1st Respondent (the 1st Respondent at the Court below). See page 12 of the Record before this Court. That there was no response from the Respondents, up until the matter was heard and the Court ruled as earlier stated that the Appellant’s matter was barred by Statute.
Being aggrieved by the said ruling, the Appellant has lodged his Notice and three (3) Grounds of Appeal dated and filed June 13th 2017 and seeks the following reliefs:
“a, AN ORDER allowing this appeal.
b. AN ORDER of this Honourable Court setting aside the decision of the lower Court.
c. AN ORDER granting the applicant/appellant all the reliefs sought in his application.”
The parties in compliance with the Rules of this Court have filed and exchanged their briefs of argument. The Appellant’s is dated and filed on October 19th 2017 and his Reply dated and filed January 31st 2018 both settled by Hameed Ajibola Jimoh, Esq. The Respondent’s dated January 19th 2018 was filed January 22nd 2018, deemed as properly filed and served on January 23rd 2018 and was settled by T. D. Agbe, Esq.
ISSUES DISTILLED BY THE PARTIES FOR DETERMINATION
The Appellant’s Issues are as follows:
i. “Whether or not the appellant’s suit was statute barred
ii. Whether or not the lower/trial Court erred in law and misdirected itself when it held and/or concluded that the Appellant’s suit was statute barred and thereby dismissing same.
iii. Whether the Appellant is entitled to the reliefs sought in his application
iv. Whether this Honourable Court has the power to grant the Appellant’s reliefs sought.”
The two (2) Issues distilled by the Respondents are as follows:
1. “Whether the Appellant’s suit was not statute-barred
2. Whether the Appellant is entitled to the relief sought in the suit”
Closely considering the two (2) sets of Issues, one finds that they are similar in content and therefore, I will adopt the Appellant’s for the determination of this appeal.
SUBMISSIONS ON BEHALF OF THE PARTIES
Mr. Hameed A. Jimoh, on his own behalf, submitted that the suit was not statute-barred. That it is the number of days between 18th July, 2016 and the 26th July, 2016 that must be considered and not the day the Motion on Notice for judicial review was filed in accordance with the Court’s order granting leave to apply. Further that from the date of the petition, July 19th 2016 to July 26th 2016 when the motion ex-parte was filed the days were less than thirty 30 days, limited by the Freedom of Information Act, 2011. That it is very important to first determine the cause which gave rise to the Appellant’s action at the Court below. In support, he cited the cases of ADEKOYA V. FHA 2008 11 NWLR PT. 1099 539 and AMEDE V. U.B.A. 2008 8 NWLR PT. 1090 623. He submitted that the Court below misdirected itself in its assessment of the date of the cause of action and the date the Appellant filed his suit to apply for leave of the Court and to apply for judicial review of his reliefs.
He submitted that the Appellant is entitled to the reliefs sought in his application as he has shown that his suit was not barred by statute. And that since there was no opposition to his claims at the Court below, in spite of due service on the Respondents, the Court should have granted his application. In support, he cited the cases of ATAKPA V. EBETOR 2015 3 NWLR PT. 1447 549 and TUKUR V. UBA 2013 4 NWLR PT. 13 43 90. He argued that the defence of denial of fair hearing would not avail the Respondents and cited in support the cases of UKACHUKWU V. PDP 2014 17 NWLR PT. 1435 134 and INAKOJU V. ADELEKE 2007 2 MJSC 200.
The learned Counsel submitted that this Court has the power to set aside the ruling of the Court below and grant his reliefs and referred to Section 15 of the Court of Appeal Act 2010 and Order 4 Rule 3 of the Rules of this Court. In conclusion, he urged that the appeal be allowed and the reliefs sought be granted.
Mr. T. D. Agbe, learned Counsel for the Respondents submitted that the Freedom of Information Act under which the Appellant’s cause of action arose in Section 20 thereof prescribed thirty (30) days for any person such as the Appellant to apply to Court for a review of his matter. That the Appellant’s grievance became unenforceable since thirty (30) days expired and the cause of action became empty and extinguished and cited in support the cases of WOHEREM V. EMERUWA 2004 13 NWLR PT. 890 PG. 398, CENTRAL BANK OF NIGERIA & ORS V. OKOJIE 2004 10 NWLR PT. 882 PG. 488 and OSUN STATE GOVT. V. DALAMI NIG. LTD. 2007 9 NWLR PT. 1038 PG. 66. He submitted that from the Appellant’s affidavit the alleged breach occurred on July 18th 2016 from which day he had thirty (30) days to seek judicial review but his Motion for review was filed October 18th 2016, a date clearly outside the thirty (30) days prescribed by law. That the Appellant went to sleep on his right and cited the case of TEXACO PANAMA INC. V. SPDC NIG. LTD. 2002 FWLR PT. 96 597.
He submitted that the position remains the same even in the face of Order 34 Rule 4 of the Federal High Court Civil Procedure Rules, 2009 which provides three (3) months for an application for judicial review from the date of occurrence of the subject of the Applicant. That where there is conflict between the provision of the Freedom of Information Act and the provision of the Rules of the Court and in this regard, Order 34, the provision of the Act will prevail. In support, he cited the cases of BROADBANK OF NIGERIA V. OLAYIWOLA & SONS 2005 1 SCM 65, AFRIBANK NIG. PLC V. MR. CHIMA AKWARA 2006 1 SCN 223 and MR. POPOOLA ELABANJO & ANOR. V. CHIEF MRS GANIAT DAWODU 2006 6 SCNJ 204.
He submitted that the Appellant failed to prove with cogent and credible evidence that he applied for information from the public institution and that the institution refused to supply information as expected under Section 20 of the Act. Further and in view of the prevailing effect of the Act over Order 34 Rule 4 with regard to thirty (30) days as prescribed, the Appellant is not entitled to his claims. And that Section 7 (5) of the Act provides for N500,000.00 only as damages where a breach is established. In conclusion, he urged that the appeal be dismissed in its entirety for lacking merit.
THE POSITION OF THE COURT
I have very carefully and thoroughly considered the briefs by the parties and having so done I shall proceed by considering all the Appellant’s Issues together. For ease of reference, the Issues are hereunder reproduced thus:
i. ‘”Whether or not the appellant’s suit was statute barred.
ii. Whether or not the lower/trial Court erred in law and misdirected itself when it held and/or concluded that the Appellant’s suit was statute barred and thereby dismissing same.
iii. Whether the Appellant is entitled to the reliefs sought in his application.
iv. Whether this Honourable Court has the power to grant the Appellant’s reliefs sought.”
The one main issue herein as it would appear in my respectful view and humbly is, whether or not the suit of the Appellant was barred by Statute which would disentitle him from the reliefs he sought at the Court below. Both sides have argued for and against and it remains the Appellant’s position that his suit was well within time and therefore entitled to the reliefs sought at the Court below.
A statute of limitation removes the right to action, the right of enforcement, right to judicial relief and leaves the party with a bare and empty cause of action which cannot be enforced. The cause of action becomes extinguished when it is barred by the operation of the Limitation law and it can no longer be maintained in the Courts.
It is trite and settled that a legal right to enforce an action is not in perpetuity but generally limited by Statute. See the cases of ADEOSUN V. JIBESIN 2001 14 WRN 706, ELABANJO V. DAWODU 2006 15 NWLR P. 97, EGBE V. ADEFARASIN NO. 2 1987 1 NWLR PT. 47 1 and AKIBU V. AZEEZ 2003 5 NWLR PT. 814 643 amongst a host of others.
The objective and intendment of limitation of time with respect to institution of action accords with fairness and conforms with the reality of human society, as it is geared to protect Defendants from embarrassment where witnesses are no longer available for many reasons, necessary documents could be out of circulation, lost, destroyed and are impossible to come by even in the archives etc. See the cases of SOSAN V. ADEMUYIWA 1986 3 NWLR PT. 27 241, ADEOSUN V. JIBESIN Supra, NZE BERNARD CHIGBU V. TONIMAS NIG. LTD. & ANOR 2006 LPELR-846 SC, ELABANJO V. DAWODU Supra, AKIBU V. AZEEZ Supra and SHELL PETROLEUM DEV. COY. LTD. V. CHIEF GOODLUCK C. R. MEBURU 2013 LPELR – 21889 CA.
A cause of action is a combination of facts and circumstances which give rise to a right to sue or file a claim in Court for remedy. It includes all the things which are necessary to give a right of action and every material fact which has to be proved to entitle the Plaintiff to succeed.
To determine whether or not a matter is caught by the period of limitation, the Court looks at the time the cause of action arose and compares it with when the writ of summons was filed. If the time of the writ is beyond the period allowed by the Limitation Law, then the action is Statute barred. See the cases of MILAD EKITI STATE V. ALADEYELU 2007 14 NWLR PT. 1055 P. 619 and OKENWA V. MILITARY GOV. IMO STATE 1997 6 NWLR PT. 507 154.
Statute of limitation begins to run from the moment/the date the cause of action arises.
The Court found as follows on pages 74 to 81 of the Record that the Appellant’s petition pursuant to the Freedom of Information Act to the 1st Respondent was filed July 19th 2016 and that it was more than thirty (30) days to October 18th 2016 when he filed his suit and therefore outside the period prescribed under Section 20 of the Act. That, thirty (30) days from July 19th 2016 should be August 19th 2016. See page 81 of the Record. It then held thus on page 81:
“This present suit was filed on 18th day of October, 2016.
This is clearly outside the 30 days allowed by the Act.
Accordingly, suit is statute barred.”
One agrees with the submission of the Respondents that the Appellant’s alleged breach of his right to information occurred on July 18th 2016 as contained in paragraphs 3 to 6 of his affidavit in support. It states thus therein:
3. “That on the 18th July, 2016, the Applicant desired the Bye-Law of Bwari Area Council, Federal Capital Territory, Abuja.
4. That the Applicant could not get hold of the Bwari Area Council’s Bye-Law.
5. That the Applicant continued to search through online to get the Bwari Area Council’s website address in order to search whether its Bye-Law is available online in compliance with the provisions of the Freedom of Information Act, 2011.
6. That the Applicant could not locate the Bwari Area Council’s website address and could not get its Bye-Law.”
As already stated, the time the cause of action arose is very important. From the Appellant’s brief, he stated the date the cause of action arose and correctly in my view as July 18th 2016. Further in my view and humbly, he was wrong as to the next important date which is the date the action was filed. The date of the application for leave of the Court to apply for judicial review should be part of the days running and a build up to the thirty (30) days, including the day for the application for judicial review given the provision of Section 20 which states thus:
“Any applicant who has been denied access to information, of part thereof, may apply to the Court for a review of the matter within 30 days after the public institution denies or is deemed to have denied the application…”
Therefore, the actual application for a review must be brought before the Court within the thirty (30) days prescribed by the law. In the case of the Appellant, the actual application did not come within the thirty (30) days it came a couple of months after, October 18th 2016. That was without any doubt outside the thirty (30) days stipulated. Therefore, the Applicant’s action became barred by Statute.
The law is as stated by the learned Respondents’ Counsel as between the Rules of Court and the applicable law in a situation where the Rules provide contrary to the law as herein. Order 34 Rule 4 of the Rules of the Court below provides three (3) months from the day of the cause of action. As stated, the provision of the Freedom of Information Act shall prevail. In other words, the period of thirty (30) days remains.
Having found as aforegoing, it cannot be said that the Appellant herein is entitled to the reliefs sought and this Court cannot grant the application where it is as found. In consequence, all the Issues are resolved against the Appellant.
If the foregoing be the position, the Court below had no further business with the suit. The position of the law is that where indeed a matter is found to be out of time and therefore barred by Statute, whatever proceedings taken place therein would be rendered a nullity as the Court would have no jurisdiction so to do.
In the light of the foregoing, having found as the Court below that the Appellant’s suit was filed outside the thirty (30) days prescribed by the Freedom of Information Act, the Appellant’s suit was barred by Statute.
In the result, this appeal cannot be allowed, it fails and is accordingly hereby dismissed. The ruling of the Federal High Court delivered on May 5th, 2017, by Hon. Justice A. I. Chikere is hereby affirmed.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft, the decision of my learned brother, Elfrieda O. Williams-Dawodu, JCA, which has just been delivered.
I entirely agree with, and do not desire to add to the said decision.
I adopt the entire decision as mine, with nothing more to add.
MUHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother, ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA just delivered. I agree with his conclusions that the appeal fails and it is accordingly dismissed.
The ruling of the Federal High Court delivered by Hon. Justice A.I. Chikere on May 5th, 2017, is hereby affirmed.
Appearances:
…For Appellant(s)
Mr. T. D. Agbeh PSC. For Respondent(s)
