JOSEPH DAMENG MUDUN & ORS V. MONDAY HASSAN ADANCHI & ORS
(2013)LCN/6025(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of March, 2013
CA/J/20/2006
RATIO
“What is a decision as understood in the legal parlance? Section 318 of the 1999 Constitution (as amended) defines a decision in relation to a court as any determination of that court and includes judgment decree, order, conviction, sentence or recommendation. An interlocutory order is one that relates to some intermediate matter in the case, it is any order than a final one. See Alor Vs. Ngene (2007) 17 NWLR Pt.1062 p.163 @ 175 and 181.” Per BDLIYA, J.C.A.
“In A.P.C. Ltd. Vs. NDIC, (Nig.) Ltd., the Supreme Court defined the word “final” to mean end, last, terminate or complete. In relation to a legal action, the word is used in contradiction with “interlocutory”. In other words, an interlocutory process or decision is not final. It is provisional, interim; temporary, not final.” Per BDLIYA, J.C.A.
“Section 3 of the Interpretation Law Cap 52 of Laws of the Federation, 2004 provides: “Law” means any law enacted or having effect as if enacted by the legislature of a State and includes any instrument having the force of law which is made under a Law.” By the definition of law by Section 3 of the Interpretation Act, which have been reproduce supra; I agree with Ikekhuamhen Esq. that the Mangu Emirate/Traditional Council (Modification of Native Law and Custom relating to the selection of the District Head of Bokkos) Order of 1978, Legal Native No. 2 of 1978, is a valid subsisting law.” Per BDLIYA, J.C.A.
“The law is well settled by a plethora of decided authorities by the superior courts that costs follow the event in the litigation processes. The award of cost is at the discretion of the court hearing the matter. A successful party in the litigation process is entitled to cost unless there are special reasons why he should be deprived of his entitlement. In assessing and awarding cost the court is to act judicially and judiciously giving reasons for the award of the cost. See NNPC Vs. Klifeo (Nig.) Ltd. (2011) 10 NWLR Pt.1255 p.234; Anyegbunam Vs. Obaka (1993) 5 NWLR Pt. 244 p.449 and Obayagbona Vs. Obazee (1972) 5 SC 242.” Per BDLIYA, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. JOSEPH DAMENG MUDUN
2. YUSUF MALOU MUDUN
3. MICHAEL M. M. MUDUN
4. ISHAKU SHUGUM MUDUN
5. ZAKARIYA MAGUR MUDUN
6. DANJUMA MGWUR MUDUN
(on behalf of themselves and the entire members of the Mudun house (family) in respect of the stool of the district head (Makai) of Bokkos) Appellant(s)
AND
1. MONDAY HASSAN ADANCHI
(for himself and the entire members of Adanchin house (family) of Bokkos district)
2. BOKKOS TRADITIONAL COUNCIL
3. ATTORNEY GENERAL OF PLATEAU STATE
4. GOVERNMENT OF PLATEAU STATE Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): By a writ of Summons dated and filed on 3rd of February, 2004 and a joint statement of claim dated 18th and filed on 19th March, 2004, the appellants, who were the plaintiffs before lower court claimed as follows:
(1a) A declaration that the Mudun House (family) is the only ruling House members of which are entitled to vie for the stool of the District Head (Makai) of Bokkos, in the Bokkos Local Government Area of Plateau State.
(1b) A declaration that the Mudun house (family) is a Ruling House members of which are entitled to vie for the stool of the District Head ) Makai) of Bokkos in the Bokkos Local Government Area of Plateau State.
(2) A declaration that the Mangu Emirate/Traditional Council (Modification of Native Law and Custom relating to the selection of the District Head of Bokkos District) Order, 1978 (P.S.L.G.L.N .2 of 1978) is not a valid Law.
(3) A declaration that the purported selection of the 1st Defendant as the District Head (Makai) of Bokkos District under the Mangu Emirate/Traditional Council (Modification of Nation Law and Custom relating to the selection of the District Head of Bokkos District) Order, 1978, P.S.L.G.L.N. of 1978, is null, void and of no effect whatsoever.
(4) A perpetual injunction restraining the 1st Defendant from holding out or parading himself as the District Head (Makai) of Bokkos District, on the one hand, and, as well as restraining the 2nd, 3rd and 4th Defendants from recognizing or dealing with him (1st defendant) as the District Head of Bokkos District.
(5) An order directing the 3rd and 4th defendants to EITHER insert the words “The Mudun Ruling House (family)” in the law, Order or Gazette relating to the selection of the District Head (Makai) of Bokkos District to be made forthwith.
(6) An order directing the 2nd defendant to conduct a fresh and proper selection of a person from the Mudun Ruling House (family) to fill the seat of the District Head (Makai) of Bokkos or to participate in any such selection.
(7) The cost of this action/suit.
The Writ of Summons and the joint statement of claim were served on the Defendants/Respondents. The 1st and 2nd defendants/Respondents challenged the competence of the suit by a motion on notice dated 10th July and filled on the 14th of July 2004 seeking for an order dismissing the suit against them on the ground that by operation of the Plateau State limitation Law No. 6 of 1988, same is statute barred. After hearing arguments from learned Counsel to the parties, the lower court ruled as follows on the 14th of December 2004 as could be found on pages 24 to 33 of the record of appeal. Specifically on page 30, the learned judge of the lower court ruled thus:
“From all the facts available both from the statement of claim of the Plaintiff/Respondents and facts deposed to in their Counter affidavit as well as the affidavit in support of the motion the cause of action arose in 1978. What happened in December, 2003 (i.e the selection), was the effect or result of the 1978 action-i.e. the enactment or otherwise referred to as Legal Notice No. 2 of 1978.”
On page 33 of the record of appeal, the learned judge of the lower Court concluded the ruling as follows:
“Looking at the writ of Summons this case as well as the statement of claim it is clear that dates have been indicated and it is the 1st – 2nd defendants/Respondents that have not gone outside those dates.
In view of the Court finding above, it follows that this action is not maintainable because it is statute barred. Accordingly this suit is struck out for not being properly before the Court”.
Dissatisfied with the ruling of the lower Court, the appellants (who were the Plaintiffs before the lower Court) appealed to this Court vide a Notice of Appeal dated 10th of February 2005 and filed on 22nd of February, 2005 containing five (5) grounds of appeal. Without their particulars, the grounds of appeal are:
GROUND ONE (1)
The trial Court erred in law when it held that the action (suit) is statute barred but (sic) not maintainable.
GROUND TWO (2)
The trial court misdirected itself in law when it held as follows:
“In computing the time from 1978, it is very clear that the Plaintiff/Respondents are out of time.”
GROUND THREE (3)
The trial Court erred in law in striking out the suit when it failed to consider the relative strength of the parties case thereby occasioning a miscarriage of justice.
GROUND FIVE (5)
The trial Court erred in law in striking out the suit and awarding five hundred Naira cost in favour of the 19th – 2nd defendants and this occasioned a miscarriage of justice.
GROUND SIX (6)
The decision of the trial Court is against the weight of evidence.
On the 8th of January 2013, the appeal came up for hearing. Learned Counsel to the parties adopted their respective briefs of arguments which have been earlier filed before this Court. In the appellants joint Brief of Argument dated and filed on 12th November 2007, Ikekuamhem Esq. of learned Counsel did formulate three 3 issues for determination,
They are as follows:
(a) Whether the action (suit) is statute barred but (sic) not maintainable by operation of the Plateau State limitation law No, 16 of 1988 (grounds one and two).
(b) Whether or not the Mangu Emirate/Traditional Council (Modification of Native Law and Custom relating to the selection of the District Head of Bokkos District) Order, 1978 (P.S.L.G.C.N 2 of 1978) is a Law (covers grounds three and four).
(c) Whether or not the lower Court was right to have declined jurisdiction to entertain the suit struck out same and awarded cost of Five Hundred Naira in favour of the 1st and 2nd Respondents (ground five (5).
The 1st and 2nd Respondents in their Brief of Argument settled by S. T. Panwal Esq. formulated two (2) Issues to be determined in the appeal, which are:
(a) Whether the learned judge of the High Court, Barkin-Ladi, was not right in upholding the preliminary objection and striking out the plaintiff’s case for being statute barred, having regard to material facts at the disposal of the court at the time, and
(b) Whether the awarded of cost for the 1st and 2nd applicants/Respondents herein was appropriate having regard to the circumstances of the case at the time.
For the 3rd and 4th Respondent; N. D. Delleng Esq. of learned Counsel did formulate two (2) Issues which are:
(a) Whether in the clear violation of the provision of the Public Officers (Protection) Law, Cap III of Laws of Northern Nigeria 1963, as applicable to Plateau State and of the Limitation Edict No. 16 of 1988, the appellants can maintain the action as instituted before the lower Court.
(b) Whether the Ruling by the lower court has not finally determined appellants’ Suit.
The Issues formulated by the appellants and the Respondents overlap each other. For instance, Issue I formulated in the appellants’ Brief of argument is same with Issue I of the 1st – 2nd Respondents and that of 3rd – 4th Respondents, Also Issue 3 of the appellants is substantially same with Issue 2 of the 1st-2nd Respondents. In the resolution of these Issues, this Court can either adopt, reframe and or restructure them where necessary or desirable. I am fortified in this view by the authority of AMANA SATI HOTELS LTD.V. PEOPLES DEMOCRATTC PARTY (PPP) (2007) 6 NWLR pt.1031 p.453 @ 470, wherein this Court held that it is permissible for an appellant Court to either adopt, reframe restructure and or formulate new Issues which are consistent with the grounds of appeal, which in its opinion, would determine the question (s) in the appeal. See also LABIYI ADMINISTRATOR (1992) 8 NWLR Pt. 258 P.139: ADIRKU V. ADEJOH (1994) 55 NWLR Pt.349 P.582; DUNG V. GYANG (1994) 8 NWLR Pt.362 P.315; IKEGWUAHA V. OHAWUCHI (1996) 33 NWLR Pt.435 P.146 and YADIS NIG.) LTD. V. GNZC LTD (2007) 14 NWLR Pt. 1055 P.584 @ 605.
Therefore, having found that the Issues formulated in the Briefs of argument of the parties to be over-lapping, it is necessary or desirable to reframe and restructure them as follows:
ISSUE ONE (1)
Whether the action (suit) instituted by the appellants who were the plaintiffs in the lower court, is statute barred and also not maintainable by operation of the Plateau State Limitation Law No. 16 of 1988 (Issue one of all the Parties).
ISSUE TWO (2)
Whether or not the Mangu Emirate/Traditional Council (Modification of Native Law and Custom relating to the select of the District Head of Bokkos District) Order, 1978, is a law (Issue 2 of appellants).
ISSUE THREE (3)
Whether the Ruling of the lower Court has not determined appellants’ Suit. (Issue 2 of 3rd-4th Respondents)
ISSUE FOUR (4)
Whether or not the lower Court was right to have declined jurisdiction to entertain the suit; struck out same and awarded cost of five (5) Hundred Naira in favour of the 1st-2nd Respondents. (Issues 3 of Appellants and issue 2 of 1st – 2nd Respondents).
RESOLUTION OF ISSUES:
ISSUE ONE(1)
Whether the action (suit) instituted by the appellants who were the plaintiffs in the lower Court, is statute barred and also not maintainable by operation of the Plateau State Limitation Law No. 6 of 1988.
The pith or gist of this issue is that the action or suit instituted by the appellants, that is, suit No. PLD/BL3/2004 between Joseph Dameng Mudun & Ors. Vs. Monday Hassan Adanchin & Ors. before the Plateau State High Court, Barkin Ladi, is incompetent and cannot be maintained by reason of:
(i) Section 18 of the Plateau State Limitation Law 1988
(ii) Section 2(a) of the Public Officers (Protection) Law Cap.111, Laws of Northern Nigeria 1963 as applicable to Plateau State.
Section 18 of the Plateau State Limitation law of 1988 provides as follows:
“No action founded on contract, tort and, or any other action not specifically provided for in Parts I and II of this Edict (Law) shall be brought after the expiration of five years from the date on which the cause of action accrued.”
Section 2(a) of the Public Officers (Protection) Law, Cap 111 of Laws of Northern Nigeria 1963 as applicable to Plateau State provides thus:
“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 law or of any Public duty or authority, or it respect of any alleged neglect or default in the execution of any such 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 ceasing thereof.”
If the plea that an action or suit which is statute barred or not maintainable by the operation of the provisions of a limitation law, succeeds, a court of law would be deprived of the jurisdiction or competence to hear and determine such an action or suit. In Ikene Local Government Vs. W.A.P.C. Plc. (2011) 12 NWLR Pt.223 @ 248 this Court held that the jurisdiction of a court is firmly assumed to be present if all the following conditions are satisfied.
(i) Properly constituted in regard to the number and qualification of its members.
(ii) The subject matter of the action is within in jurisdiction,
(iii) The action is initiated by the due process of law.
(iv) Any condition precedent to the exercise of its jurisdiction has been fulfilled.
Where an action is statute barred, a court of law lacks the jurisdiction to hear and determine it. See Ibekwe Vs. Imo State Education Management Board (2009) 5 NWLR Pt. 1134 p.234 @ 257; Osun State Govt. Vs. Dalami (Nig.) Ltd, (2007) 9 NWLR Pt.1038 p.66; Ibrahim Vs. J.S.C. Kaduna State (1998) 14 NWLR Pt.584 p.1; A.G. Lagos State Vs. Dosunmu (1989) 3 NWLR Pt.582 and Madukolu Vs. Nkemdilim (1962) 2 SC NLR p. 341.
Ikeekhuamhen Esq., of Learned Counsel to the appellants submitted that in determining whether or not the suit instituted is incompetent by reason of being statement barred and operation of the provisions of the Plateau State Limitation Law of 1988, the Statement of Claim and the counter affidavit together with Exh. “A” thereto are to be looked into. It was his further contention that the cause of action arose on the 16th of December, 2003 the date the 1st respondent was allegedly selected as the District head of Bokkos. The suit having been instituted on 3rd of February, 2004, a period of only two (2) months, it is not statute barred nor incompetent by the operation of the Plateau State Limitation Law, 1988. Learned Counsel referred to the case of Mass Vs. Fiv Ways Lines (1998) 4 SCNJ p. 18 @ 21 to reinforce his submission on when a cause of action arises.
Submitting further, learned counsel adumbrated that the suit instituted by the appellant is not as a result of the Mangu Emirate/Traditional Council/(Modification of Native Law and Custom relating to the selection of the District Head of Bokkos) Order 1978, but rather on the purported selection of the 1st respondent as the District Head in 2003. In view of the foregoing, it was submitted that the cause of action accrued in 2003, not in 1978 as alluded to by the respondents. Learned Counsel also submitted that before the 1978 Order, one Micheal Hassan Adanchin become the District Head of Bokkos, and held that office until he did in 2002. In view of the foregoing, it was submitted that the 1978 Order cannot be the basis of the cause of action, rather it was the selection of the 1st respondent in 2003 which was purportedly conducted pursuant to the 1978 Order.
Even if the 1978 Order is the basis of the selection of the 1st respondent, it was submitted, the suit filed by the appellants cannot be statute barred because it can be challenged at any time. This is so because there is no limitation of the period the validity of a law can be challenged. The cases of Okeke & Ors. Vs. Oruh (1994) 4 SCNJ P. 142 @ 215 and Yare & Ors. Vs. Nunku & Ors. CA/J/141/96 were cited in aid. In conclusion, learned counsel submitted that the suit filed by the appellants is not statute barred nor incompetent by operation of the Limitation Law of 1988. The court has been urged to so hold.
For the 1st and 2nd respondents Chief S. T. Panwal Esq. did submit that when a statute or law sets out a procedural duration or time for doing an act any breach of such time or procedure would render the act done incompetent. Such an act is statute barred and cannot be legally done in law. It was submitted further that the law, that is the Order or Gazette regarding the selection of the District Head of Bokkos was published in 1978. If the said Order or gazette excluded the family of the appellants, they ought to have instituted the case in 1978 or within the time as prescribed by the law. The institution of the action in 2003, 26 years after, was as a result of the 1978 law which excluded the Mudun family to which the appellants belonged. Learned Counsel submitted that in order to ascertain when the cause of action arose, the Writ of Summons and the statement of claim are relevant. As to what is cause of action, when it accrued and its applicability the cases of Duzu & Ors. Vs. Yunuk & Ors. (2010) NWLR Pt.1201 p.80; Akibu Vs. Oduntan (2000) 13 NWLR Pt.469 and UBN Plc. Vs. Umeoduagu (2007) 4 SCNJ p.75 were cited to buttress the submissions supra.
Learned Counsel further submitted that the appellants were aware of the 1978 Legal Notice that excluded their House/family in the selection of the District Head for Bokkos, yet, they did not challenge it until in 2004. Having not instituted the action within the period prescribed by Section 18 of the Plateau State Limitation Law of 1988, same cannot be competent. As to the period within which to challenge the validity of a law, it was submitted that it is not at large or ad infinitum (without an end). It is also not at this discretion of the party injured by such law, but must be within the law applicable to the case under consideration. Where a person sleeps over his right or does nothing to enforce it, he cannot be heard to complain later outside the period prescribed for him to seek redress. The case of Duzu Vs. Yunusa supra was cited and relied upon to buttress the submission supra.
Learned Counsel contended that the selection of the District Head of Bokkos in 2003 was based on the Legal Notice of 1978 which excluded the appellant’s House or family. They ought to have challenged that law at the appropriate time. Having not done so until in 2004 when the 1st respondent was selected as the District Head of Bokkos was too late in the day. It was submitted that the provisions of Section 18 of the Plateau State Limitation Law, 1988 rendered such action incompetent having not been instituted with 5 years from the date of the accrual of the cause of action. Concluding, learned counsel did urge the court to hold the suit instituted by the appellants is statute barred, having not been instituted within the period specified by Section 18 of the Plateau State Limitation Law of 1988.
Delleng Esquire, for the 3rd and 4th respondents submitted that by the provisions of Section 2(a) of the Public Officers (Protection) law as applicable to Plateau State, the action instituted by appellants, cannot be maintained against the 3rd and 4th respondents. The cases of Ekeocha vs. C.Z. & PSB (2007) All FWLR Pt.392 p.1996; FRN Vs. Gold (2007) All FWLR Pt. 380 p.1444; Bassey Vs. Minister of Defence (2006) All FWLR Pt. 343 p. 1806 were cited in aid.
As to when the cause of action arose, learned counsel did submit that by the Order of 1978, which provided for the selection of the District Head of Bokkos, it arose when the said Legal Notice become effective. Having been enacted in 1978, that is the date the cause of action accrued. It was submitted that since suit No. PLD/BL/J/3/2004 was filed in 2004, same cannot be competent in view of Section 18 of the Limitation Law of 1988. Learned counsel submitted that the 3rd and 4th respondents acted in official capacity when they enacted the 1978 Legal Notice. By the provisions of Section 2(a) of Public Officers (Protection) Law, such action ought to have been commenced within three months from the date of the enactment. The case of Fagimolu Vs. Uni. Of Ilorin (2007) All FWLR Pt.350 p.1361 was cited to buttress the submissions supra. As to the effect of an action being statute barred or incompetent by limitation law, learned counsel cited the case of Military Administrator of Ekiti State Vs. Aladejelu (2007) All FWLR Pt. 369 p. 1195 @ 1219 to the effect that such an action cannot be maintained against Public Officers acting in their official duties at the time of doing or carrying out the act complained of. Learned counsel urged the court to hold that the action instituted by the appellants against the 3rd and 4th respondents is incompetent by reason of being statute barred and the operation of the Plateau State Limitation Law of 1988.
Earlier in this judgment the provisions of the Section 2(a) Public Officers (Protection) Law of Northern Nigeria as applicable to Plateau State and Section 18 of the Limitation Law of 1988 were reproduced. What is a Limitation Law? How are the provisions of such law applied, and of what effect to an action instituted in contravention of such provisions?
An action or suit is statute barred where either the provisions of the Public Officers (Protection) Law or the provisions of a Limitation Law applies. In this instant case the Respondents challenged the competency of the suit filed by the appellants before the lower court on the grounds that by the provisions of Section 2(a) of the Public Officers (Protection) Law and the Plateau State Limitation Law of 1988, the said suit was incompetent having been instituted in contravention of the said provisions.
In the ruling of the lower court at page 33 of the record of appeal the learned judge said:
“Looking at the Writ of Summons in this case as well as the statement of claim it is clear that dates have been indicated and the 1st and 2nd defendants/Respondents that (sic) have not gone outside these dates.
In view of the court, (sic) finding above, it follows that this action is not maintainable because it is statute barred. Accordingly this suit is struck out for not being properly before the court.”
Whether an action or suit is statute barred or not is ascertainable by the nature of a plaintiff’s claim in particular and the facts constituting the claim in general. Whether the suit is statute barred by reasons of the provisions of the Public Officers (Protection) Law or a Limitation Law, the vital issues for consideration is the existence of a cause of action and when it accrued. The existence of a cause of action and when it arose or accrued can be determined by examination of the Wirt of Summons and or the Statement of Claim. In Abubakar Vs. Baleji Oil & Allied Products Ltd & Ors. (2007) 2 SCNJ p.170 @ 194, the Supreme Court per Mukhtar, J.S.C. (as she was then) had this to say:
‘It is a cardinal principle of law that to ascertain a cause of action, the immediate materials a court
should look at are the Writ of Summons and the averment in the Statement of Claim, for it is by examining them that a court can satisfy itself on the actual grouse of a pari and the remedy or relief it is seeking from the court.”
This court, in the case of Ogundipe Vs. NDIC (2009) 1 NWLR Pt.1123 p.473 @ 494 stated that:
“In the determination of the question on whether or not a reasonable cause of action has been disclosed in a case, the Court is restricted or should be confined itself to the consideration of the writ of Summons and the statement of claim filed by the Plaintiff”
See also SALIPO v. LEMINKAIRENOY (1992) 8 NWLR Pt.258 p.229; DADA vs. OGUNSANYA (1992) 3 NWLR Pt.232 p. 754; IBRAHIM v. OSIM (1988) 3 NWLR Pt.82 P.257 and ADESOLEAN V. ADEGOROLU (1991) 3 NWLR pt.179 p. 253.
The law is trite on when a cause of action arises or accrues to warrant the institution of an action or suit in a court of law. In other words when does time start to run in ascertaining the applicability of statutes of limitation in civil proceedings. For the purposes of statute of limitation time begins to run from the date on which the cause of action accrued. A cause of action accrues the moment a wrong is done to a person by other. In Fadare v. Attorney-General Oyo State (1982) S.C. 1, The Supreme Court quoted with approval the case of Board of Trade V. Cayzer Irvine Co. Ltd. (1927) A.C, 610 where it was held as follows:
“Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed”.
See also Egbe v. Adefarain (1985) 1 NWLR Pt. 3 p. 549; N.I.J.A. v. Ayanfalu (2002) 2 NWLR Pt.1018 p.246 @ 269; Adekaya v. F.H.A. (2008) 11 NWLR pt.1099 p.539 @ 560; Nduka vs. Ogbonna (2011) 1 NWLR pt.1227 p.153 @ 649 and Okaferu v. A.G. Anambra State (2005) 14 NWLR Pt. 945 p. 210.
Having regard to the principles of law on what constitutes a cause of action and when it accrues or begins to run, what are the facts or situations in this instant case which warranted the lower court in holding that the suit instated by the appellants was statute barred by reason of S. 2(a) of the Public Officers (Protection) law and Section 18 of the Plateau State Limitation law, 1988. A resort to the Writ of Summons and the pleadings is therefore necessary at this juncture. Paragraphs 18 to 24 of the joint statement of claim are relevant. The averments in these paragraphs are as follows:
“18. Sometimes in 1971 Hassan Jalme was sent on exile at Kwande in Qua’an Pan Local Government Area on account of mismanagement of revenue from tax. This brought about vacancy at the stool and the District Officer again asked the Mudun family to present a person for a new selection. Luka Shugum was presented for this purpose.
19. Luka Shugun from the Mudun House and Gambo Magale from the Adanchin house contested the stool of the District Head of Bokkos District but Gambo Magale who won the contest resigned immediately on his complaint that he wanted to further his education. So, there was vacancy at the stool once again.
20. In 1972, the District Officer called for the selection of the District Head of Bokkos District Members of the Mudun House presented Luka Shugum for the selection while the Adanchin house presented one Michael Hassan Adanchin. Michael Hassan Adanchin won the contest/selection and was therefore the District Head of Bokkos District till his death in 2002.
21. Since the year 2002, the stool of the District Head of Bokkos District has been vacant until recently.
22. Members of the Adanchin house (family) have now surreptitiously and/or purportedly put or selection their member by the name of Monday Hassan Adanchin as the District Head of Bokkos District since December 2003 by relying on the Mangu Emirate/Traditional Council (modification as native Law and Custom relating to selection of the District Head of Bokkos District) Order 1978 (P.S.L.G.L.N. 2 of 1978). Same (the document/gazette) is hereby pleaded and the Plaintiffs shall rely on it at the hearing of this suit.
23. At the hearing of this suit, the Plaintiffs shall as follows:
1(a) That according to tradition, the Mudun House is the only Ruling House (family) members of which are entitled to vie for the stool of the District Head (Makai) of Bokkos District in the Bokkos Local Government Area of Plateau State.
(c) That the Mudun House (family) is a Ruling House members of which are entitled to vie for the stool of the District Head (makai) of Bokkos District in the Bokkos Local Government Area of Plateau State.
II. That the Mangu Emirate/Traditional Council (Modification of Native Law and Custom relating to the selection of the District Head of Bokkos District) Order 1974 (P.S.L.G.L.N. 2 of 1978) does not reflect the tradition of the people and also not a valid law. Same (the Gazette/Document) is hereby pleaded and the Plaintiffs shall rely on it at the hearing of the suit.”
Looking at the pleadings reproduced supra, a cause of action has been disclosed. Was the lower Court right in holding that it had no jurisdiction to hear and determine same because the action was statute barred by reason of section 2(a) at the Public Officer (Protection) Law and Section 18 of the Plateau State Limitation Law, 1978? The selection of the 1st Respondent as the District Head of Bokkos in 2003 which was the basis of the appellant’s action was predicated on the Mangu Emirate/Traditional Council (Modification of Native Law and Custom relating to the selection of the District Head of Bokkos District) Order, 1978. The said Order was enacted in 1978. In the said Order, the appellant House (family) was excluded from taking part in selection of the District Head of Bokkos. The cause of action therefore arose or accrued the moment the appellant’s House (family) was excluded from the selection of the District Head. Time begun to run from that date regarding the cause of action in the case filed before the lower Court. Section 18 of the Plateau State Limitation law provides that such an action must be brought or commenced within (5 years after) the accrual of the Cause of action. The appellants instituted the action before the lower Court on 3rd February 2004. By simple arithmetical calculation the period from 1978 to 2004 is more than 5 years. The appellants therefore instituted their action against the Respondents in contravention of the provisions of Section 18 of the Plateau State Limitation Law of 1988.
Regarding the action against the 3rd to 4th Respondents, being public officers, the provisions of section 2(a) of the Public Officers (Protection) law as applicable to Plateau State provides that such action must be commenced within the period of three (3) months from the date of accrual of the cause of action. On the pleadings contained in the joint statement of claim, the action was instituted on 3rd February 2004. The period from 1978 to 2004 is more than three (3) months. The appellants therefore instituted the action against the 3rd and 4th Respondents in contravention of Selection 2(a) of the Public Officers (Protection) Law.
What is the effect of instituting an action in contravention of section 18 of the Plateau State Limitation law and section 2(a) of the Public Officers (Protection) Law. Where an action is instituted in contravention of the provisions of a Limitation law the action is incompetent and a court of law would have no jurisdiction to hear and determine same. In Military Administration Ekiti State Vs. Aladeyolu (2007) 14 NWLR Pt.105 P. 619 @ 653 the supreme court held that Limitation Act or law removes the right of action of a plaintiff, his right of enforcement and the right of judicial relief, leaving him with a bare and empty cause of action which he cannot enforce if such cause of action is found to be statute barred. In Enugu State Civil Service Commission Vs. Geoffrey (2006) 18 NWLR Pt. 1011 p.293 @ 304 this Court held that where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce it by judicial process if the period of time laid down by the limitation law for instituting such an action has elapsed. Thus an action commenced after the expiration of the period within which an action must be brought as stipulated in a statute of limitation is not maintainable.
As earlier pointed out in this judgment, the appellants instituted their action (suit) against the Respondent on 3rd of February 2004. The selection of the 1st Respondent as the District Head of Bokkos District was pursuant to the Mangu Emirate-Traditional Council (Modification of Native Law and Custom relating to the selection of the District Head of Bokkos District) Order of 1978, which is Legal Notice No. 2 of 1978. Though the selection of the 1st Respondent took place in 2003, it was based on the 1978 Legal Notice (Order). In the said Order, the appellant’s House or family were excluded from participating in the selection process of the District Head. This is the basis of their complaint culminating in the institution of the action before the lower court which gave birth to this appeal, Having commenced the action in contravention of Section 2(a) of the public Officers (Protection) Law as applicable to Plateau State and S.18 of the Plateau State Limitation law, 1988, the action against the Respondents can not be competent by virtue of the said limitation laws. The lower Court was therefore right in coming to the decision that the said suit No. PLD/BL31/2004 instituted before the lower court was incompetent being statute barred. In view of the foregoing, this issue is hereby resolved against the appellants.
ISSUE TWO (2)
Whether the Mangu Emirate/Traditional Council (Modification of Native Law and Custom relating to the selection of the Divisional Head) Order, 1978, (Legal Notice No. 2 of 1978) is a valid law.
Ikekhuamhen Esq. of Learned Counsel to the appellants submitted that by the provision of Section 3 of the Interpretation Law Cap 52 Laws of the Federation of Nigeria, 2004, law has been defined to include Orders, Regulations, Rules, Bye-laws, among others. It was his further submission that the Mangu Emirate/Traditional Council (Modification of Native Law and Custom relating to the selection of the District Head of Bokkos District) Order of 1978, that is, Legal Native of 1978, is a law which is valid and, its validity can be challenged in a court of law. The case of Yari & Ors. Vs. Nunka & Ors.CA/J/141/96 (unreported) was cited to buttress the submission supra; where it was held that written laws include Legal Notice, orders, Decrees, Edicts and Regulations among others.
Section 3 of the Interpretation Law Cap 52 of Laws of the Federation, 2004 provides:
“Law” means any law enacted or having effect as if enacted by the legislature of a State and includes any instrument having the force of law which is made under a Law.”
By the definition of law by Section 3 of the Interpretation Act, which have been reproduce supra; I agree with Ikekhuamhen Esq. that the Mangu Emirate/Traditional Council (Modification of Native Law and Custom relating to the selection of the District Head of Bokkos) Order of 1978, Legal Native No. 2 of 1978, is a valid subsisting law. Issue No. 2 it so resolved
ISSUE NO. THREE (3)
Whether the Ruling of the lower Court on 14th December 2004 is a final decision or not:
On this issue, Ikekhuamhen Esq, of learned Counsel to the appellants posed a question, “what is the effect of the ruling/decision of the lower Court, is the ruling an interlocutory decision or a final decision?” Learned Counsel went on to submit that an interlocutory or final decision is known by its effect on the parties thereto. It was submitted that the determining factor is whether or not parties thereto have a right to pursue in the litigation even after the ruling or decision. It is a final decision where the right of one or both of the parties in the suit have been finally determined. The case of Olatunde Vs. Obafemi Awolowo University & Anr. (1998) 4 SCNJ was cited to buttress the submissions supra. Learned Counsel then submitted that the decision by the lower Court on 14th of December, 2004 is final because the court couldn’t have continued with the proceedings having declined jurisdiction. The Court has been urged to hold so.
What is a decision as understood in the legal parlance? Section 318 of the 1999 Constitution (as amended) defines a decision in relation to a court as any determination of that court and includes judgment decree, order, conviction, sentence or recommendation. An interlocutory order is one that relates to some intermediate matter in the case, it is any order than a final one. See Alor Vs. Ngene (2007) 17 NWLR Pt.1062 p.163 @ 175 and 181.
How is final or interlocutory decision determined?
A decision is said to be final where it determines the rights of the parties in respect of the subject matter in dispute, without leaving any option to either party to relitigate over the same matter. On the other hand, a decision or order of a court which does not finally dispose of the rights of the parties in the substantive matter in the dispute or which does not foreclose the parties from relitigating over the same matter is interlocutory. See Omomuwa Vs. Oshodi (1985) 2 NWLR Pt. 10 p.974; Idakalu Vs. Adamu (2001) 1 NWLR Pt.694 p.322 and Ebokam Vs. Ekwenibe & Sons Trading Co. Ltd. (1999) 10 NWLR Pt.622 p.242.
The Supreme Court in the case of Alor Vs. Ngene (2007) 17 NWLR Pt.1062 p.163 @ 177 per Kalgo J.S,C., put it more clearly thus:
“A final order envisages that it is a permanent order made by the court and the parties in respect of whom or against whom the order is made, cannot go back to the same court to challenge or change that order. That court by virtue of the order, is funtus officio, and the only option open to the parties is by way of appeal against the order. This means that the rights of the parties have been determined to finally, and they cannot go back to the same court on those rights.”
Tobi J.S.C., in his Lordship contribution to the lead judgment of Kalgo J.S.C., said:
“Two tests have been laid down for determining whether or not an order of court is final or interlocutory; (a) The first is to see the nature of the application made to the court in order to determine whether or not the order is final or interlocutory.
(b). The second is to consider the nature of the order made. In Nigeria, it is the “nature of the order” test that has been constantly applied. If the order made finally disposes of the rights of the parties, then the order is final. If it does not, then it is interlocutory final. If it does not, then is interlocutory…”
In A.P.C. Ltd. Vs. NDIC, (Nig.) Ltd., the Supreme Court defined the word “final” to mean end, last, terminate or complete. In relation to a legal action, the word is used in contradiction with “interlocutory”. In other words, an interlocutory process or decision is not final. It is provisional, interim; temporary, not final.
The test for determination of whether an order of court is interlocutory or final has been stated in the case of Olatunde Vs. O.A.U. (1998) 5 NWLR Pt. 549 p. 178 @ 186. The test to be applied is one which looks at the decision or the order made and not at the nature of the proceedings. The determining factor is whether the rights of the parties are finally determined or disposed of by the decision or order. If it does, then it ought to be treated as a final decision; but if it does not, it is an interlocutory decision or order. See also Ude Vs. Agul (1961) SCNLR p. 98 and Ojora Vs. Odunsi (1964) NWLR p.12.
The distinction between final decision and an interlocutory decision is also constitutionally recognized by virtue of the provisions of Sections 241 and 242 of the 1999 Constitution as (amended) in that appeals from the Federal High Court and the State High Court sitting at first instance lie as of right to the Court of Appeal in regard to final decisions in any civil or criminal proceedings, whereas leave has to be sought and obtained in regard to interlocutory decisions. See Ibok Vs. Honesty II (2007) 6 NWLR Pt.1029 p.55 @ 69.
A judgment or an order of court which touches on the competency of an action vis-a-vis the jurisdiction of the court to hear it is a final decision. See Akinsanya Vs. UBA Ltd. (1986) 4 NWLR Pt. 35 p. 273.
The implication or effect of a decision being final is that the court that delivers it becomes functus officio with regard to the said suit of the same court. The finality of the decision is correlated with the court being functus officio.
The ruling of the lower court is at pages 25 to 33 of the record of appeal. On page 33 this is how the learned trial judge of the lower court concluded his ruling:
“Looking at the writ of summons in this case as well as the Statement of Claim it is clear that dates have been indicated and it (sic) the 1st and 2nd defendants/Respondents that have not gone outside these dates.
In view of the court (sic) finding above, it follows that this action is not maintainable because it is statute barred. Accordingly this suit is struck out for not being properly before the court.”
Applying the principles of law enunciated in the cases of Alor Vs. Ngene; Omomuwa Vs. Oshodi; Idakalu Vs. Adamu; Ebokan Vs. Ekwenibe; APC Ltd. Vs. NDIC (NUB) Ltd.; Olatunde Vs. OAU; Ude Vs. Agui; Ojora Vs. Odunsi; Ibok Vs. Honesty II and Akinsanya Vs. UBA Ltd. supra, there is no doubting the fact that the ruling of the lower court on 14th of December, 2004 is a final decision in that neither of the parties in that case could relitigale same before it. The only option for any of the parties who is not satisfied with the ruling is to appeal as the appellants have done to this court. The ruling of the lower court finally determined the rights of the parties as far as the lower court was concerned. The ruling of 14th of December, 2003 is therefore a final decision. Issue 3 is hereby resolved positively.
ISSUE FOUR (4)
Whether it was proper or justified for the lower court to award cost in favour of the Respondent, after declining jurisdiction to hear and determine the case:
Learned counsel to the appellants submitted that since the lower court declined jurisdictions over the subject matter of suit No. PLD/BL/3/2004, it was wrong for it to have awarded cost in favour of the Respondents. It was further submitted that the power or authority to award cost by a court in a civil proceedings cannot be exercised in vacuum. It was submitted further that a court must be seized of jurisdiction over a matter before it in order to award cost where desirable. Learned counsel urged this court to set aside the award of cost having struck out the suit for lack of jurisdiction to determine same.
For the 1st and 2nd Respondents, Panwal Esquire of learned counsel adumbrated that though the lower court declined jurisdiction to entertain the suit, the award of cost thereafter was proper and appropriate in the circumstances. This is so because the cost was award in the proceedings in respect of the motion on notice filed challenging the jurisdiction of the court. The Respondents entered appearance, filed document and appeared in court. They were entitled to cost in the circumstances. This court has been urged to hold that the award of cost to the Respondents was proper, regular and appropriate having regard to the circumstance it was awarded.
The law is well settled by a plethora of decided authorities by the superior courts that costs follow the event in the litigation processes. The award of cost is at the discretion of the court hearing the matter. A successful party in the litigation process is entitled to cost unless there are special reasons why he should be deprived of his entitlement. In assessing and awarding cost the court is to act judicially and judiciously giving reasons for the award of the cost. See NNPC Vs. Klifeo (Nig.) Ltd. (2011) 10 NWLR Pt.1255 p.234; Anyegbunam Vs. Obaka (1993) 5 NWLR Pt. 244 p.449 and Obayagbona Vs. Obazee (1972) 5 SC 242.
Granting of cost in a civil trial by a court is purely discretionary. Where a trial court exercised its discretion judiciously and judicially, an appellate court will not question such exercise of discretion. It is not the role of an appellate court to query a proper exercise of discretion by a trial court in the award of cost. See Nicon Ins. Corp. Vs. Olowofoyeku (2006) 5 NWLR Pt. 973 p. 2144; Saraki Vs. Kotoye (1990) 4 NWLR Pt. 143 p. 444 and R.E.A.N. Ltd. Vs. Aswani iles Ltd. (1992) 3 NWLR Pt.227 p.1.
The jurisdiction of court to determine a cause or matter includes making of any order(s) that might be necessary or essential having regard to the facts and circumstances of the case.
The power to award cost as provided by Rules of Court is discretionary which must be exercised judicially and judiciously with the ultimate aim or objective of restituting or compensating the successful party to the extent of expenses incurred in the litigation process. Therefore, in the consideration of awarding cost and assessment of the quantum, the court is to have due regard to the following:
(a) The summons fees paid
(b) The duration of the case
(c) The number of witnesses called by the successful party
(d) The nature of the claim or defence thereto by the parties
(e) The cost of legal representation
(f) The monetary value at the time of incurring the expenses, and
(g) The value and purchasing power of the currency of award at the material time.
See Adelakun Vs. Oruku (2006) 11 NWLR Pt.992 p. 625 @ 650; Ogundulu Vs. Philips (1973) 2 SC 91; Macaulay Vs. NPL Merchant Bank Ltd. (1990) 4 NWLR Pt. 144 p. 283; Shell BP Dev. Co. Ltd. Vs. His Highness Dere Cole (1978) 3 SC 183; Onabanjo Vs. Ewetuga (1993) 4 NWLR Pt. 288 p. 445 and Uzomo Vs. Okorie (2007) 5 NWLR Pt.682 p.882.
The argument of the learned counsel for the appellants that having declined jurisdiction to hear the case, the lower court had no power to award cost in favour of the respondents cannot hold water in view of the authorities cited supra. The lower court awarded the cost after hearing the motion on notice wherein the jurisdiction of the court was challenged.
The hearing of the motion on notice was a proceeding in the suit whereby it was struck out. The Respondents had to appear in court for the hearing of the motion. They filed documents, surely, they were entitled to be compensated or re-imbursed of the expenses incurred in the litigation process. It is for these reasons that this court is the view that the award of cost to the respondents, notwithstanding the declining of jurisdiction to entertain the same, was proper and appropriate in the circumstances of the case. Issue 4 is hereby resolved against the appellants.
It was argued on behalf of the appellants that the respondents ought to have filed their Statement of Defence before challenging the jurisdiction of the lower court to hear and determine the suit. I think this is a misconception of the law. In Governor of Ekiti State & Ors. Vs. OBA J.O. Awolola; The Eleda of Eda-Oniyo (2006) All FWLR Pt.312 p.2066 @ 2092 the court held that:
“It is trite law that in deciding whether or not to formulate the plaintiff’s suit in limine on account of a fundamental defect that affects the jurisdiction of the court, the court looks only at the Writ of Summons and the Statement of Claim and no other source.”
In NDIC Vs. CBN & Anor. (2002) 2 SCNJ 75 @ 89, the Supreme Court, per Uwaifo J.S.C. put the position of the law on the matter thus:
“To say, therefore, as did the court below and as canvassed by the plaintiff/Respondent before us in its brief of argument, that objection to jurisdiction should only be taken after the Statement of Claim has been filed is a misconception. It depends on what materials are available. It could be taken on the basis of the Statement of Claim….it could be taken on the basis of evidence received, or say a motion supported by an affidavit giving the full facts upon which reliance is placed… But certainly it could be taken on the face of the Writ of Summons where appropriate.”
The submission of Dalleng Esquire, of learned counsel to the 3rd – 4th Respondents to the effect that it cannot be premature to seek to dispose by way of a preliminary objection the jurisdiction of the court at the first opportunity, especially where it would disposes of the case without the need to call evidence is apt: In Olabanjo Vs. Dawodu (2006) All FWLR Pt.328 p.604 @ 69 the court held that:
“A point of law can be raised on a preliminary objection if the point will be decisive of the whole litigation.”
Indeed, a court of law can suo moto raise the issue of whether it has the jurisdiction to entertain a matter at the earliest opportunity without the filing of pleadings. For instance in Megawelu Vs. Kano State Government (2006) All FWLR Pt.329 p. 918 @ 928; Alagoa J.C.A. (as then he was) said:
“A dutiful and diligent judge even without the necessity of pleadings would have still asked both counsel to address him on whether he had the jurisdiction to entertain a complaint of this nature in tort which even from a cursory glance at the Writ of Summons alone is seen to be statute barred.”
Therefore, the filing of motion on notice No. PLD/BL/3M/04 dated 10th July and filed on 11th July, 2004 challenging the jurisdiction of the lower court to entertain suit No. PLD/BL/3/2004 was proper and appropriate, It couldn’t have been more proper and appropriate in law. The contention of the appellants that it was premature has no basis in law.
On the whole, the appeal fails for it lacks merit. It is hereby dismissed. Cost of N30,000.00 is hereby assessed and awarded in favour of the 1st and 2nd respondents. No cost awarded in favour of the 3rd and 4th respondents.
JUMMAI HANNATU SANKEY, J.C.A.: I have read in advance the lead Judgment of my learned brother, Bdliya, J.C.A. I entirely agree with his lordship that the Appeal lacks merit, and I will only add a few words in agreement thereof.
Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly and validly instituted after the expiration of the period prescribed. Thus, an action instituted after the prescribed period is said to be statute barred. See Congress for Progressive Change (CPC) v. Independent Electoral Commission (INEC) & others (2011) 12 SCNJ 644; Osun State Govt. v. Danlami Nig. Ltd (2007) ALL FWLR (Pt.365) 438. An action filed outside the period prescribed by statute will lapse due to effluxion of time. If the time from when the cause of action arose to when the writ of summons was filed is beyond the period allowed in the enabling statute, then the action is statute barred. As the law stands now, a court has no discretion in the matter, (i.e.) to extend limitation periods. See JFS Investment Ltd V Brawal Line Ltd (2010) 12 SCNJ 275. In this case, R. Vivour, JSC, at page 314 of the Report, explained the purpose of the limitation period in our statutes thus:
“The main purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim. Put in another way, a claim which he never expected to have to deal with. For example, if a claim is brought a long time after the events in question, there is a strong likelihood that evidence which was available earlier may have been lost, and the memories of witnesses may have faded.”
In the case of Alhaji Jibril Bala Hassan v. Dr. Muazu Babangida Aliyu (2010) 7 SCCNJ 35 at 58-59, the Supreme Court per Onnoghen, JSC, had cause to restate and reaffirm its findings in Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549 @ 568 on the status of suits filed outside the time period prescribed by Limitation Laws. Since I cannot put it better myself, it is set out verbatim hereunder:
“The general principle of law is that where the law provides for the bringing of an action within a prescribed period, in respect of a cause of action accruing to the plaintiff, proceeding shall not be brought after the time prescribed by the statute – see Obiofuna v. Okoye (1961) ALL NLR 357. An action brought outside the prescribed period offends against the provision of the section and does not give rise to a cause of action. A cause of action means the factual situation stated by the plaintiff, it substantiated, entitles him to a remedy against the defendant…”
The effect of a statute of limitation 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 the right to judicial relief.
In the instant case, the 1st and 2nd Respondents relied on Section 18 of the Plateau State Limitation Law of 1988; whereas, the 3rd and 4th Respondents, in addition, relied on Section 2(a) of the Public Officers Protection Law as applicable to Plateau State. The s of the two provisions are set out hereunder for ease of reference:
Section 18 Plateau State Limitation Law of 1988:
“No action founded on contract, tort and or any other action not specifically provided for in Parts I and II of this Edict (Law) shall be brought after the expiration of five years from the date on which the cause of action accrued.”
Section 2(a) of the Public Officers (Protection) Law: Cap 111 Laws of Northern Nigeria, 1963 as applicable to Plateau State:
“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 law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such 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 ceasing thereof.”
A close scrutiny of the Writ of summons and the Statement of claim of the Appellants reveals that the crux of the claim at the trial Court is that the Mudun family, as represented by the Appellants, was wrongly excluded from contesting for the stool of the District head of Bokkos by the 3rd and 4th Respondents relying on the Mangu Emirate /Traditional Council Modification of Native Law & Custom relating to the Selection of the District Head of Bokkos District) Order, 1978, (P.S.L.G.L.N. 2 of 1978). Paragraphs 22 & 23 of the Appellants’ Writ of summons are reproduced hereunder for clarity of argument:
“22. Members of the Adanchin house (family) have now surreptitiously and/or purportedly put or selection (sic) their member by the name of Monday Hassan Adanchin as the District Head of Bokkos District since December, 2003 by relying on the Mangu Emirate/Traditional Council Modification of Native Law & Custom relating to the Selection of the District Head of Bokkos District) Order, 1978, (P.S.L.G.L.N. 2 of 1978). Same (the document/gazette) is hereby pleaded and the plaintiffs shall rely on it at the hearing of this suit,
23. At the hearing of this suit, the Plaintiffs shall (sic) as follows:
1(a) that according to tradition, the Mudun House is the only Ruling House (family) members of which are entitled to vie for the stool of the District Head (Makai) of Bokkos District in Bokkos Local Government Area of Plateau State.
(b)…
(c) That the Mudun House (family) is a Ruling House members of which are entitled to vie for the stool of the District Head (Makai) of Bokkos district in the Bokkos Local Government Area of Plateau State.
II. That the Mangu Emirate/Traditional Council Modification of Native Law & Custom relating to the Selection of the District Head of Bokkos District) Order, 1978, (P.S.L.G.L.N. 2 of 1978) does not reflect the tradition of the people and also not a valid law. Same (the Gazette/Document) is hereby pleaded and the Plaintiffs shall rely on it at the hearing of the suit.”
The Appellants were therefore challenging the validity of the Order as set out in the Mangu Emirate /Traditional Council Modification of Native Law & Custom relating to the Selection of the District Head of Bokkos District) Order, 1978, (P.S.L.G.L.N. 2 of 1978), which excluded the family from contesting the stool of the District Head. This was therefore the cause of action. However, the said Order was clearly promulgated in 1978; whereas, the Appellants waited until 3rd February, 2004 to institute this action. They therefore undoubtedly fell afoul of Section 18 of the Plateau State Limitation law which prescribes a time limit of five (5) years from the accrual of the cause of action for an aggrieved party to institute legal action.
In particular reference to the 3rd & 4th Respondents who, being public officers, further rely on Section 2(a) of the Public Officers Protection Law, same limits the time within which a prospective litigant may commence an action against a public officer to three (3) months. Certainly by any stretch of the imagination, a period of more than three months had elapsed between 1978, when the cause of action accrued, and February, 2004, when the Appellants instituted the action against them.
In the final analysis, the claim of the Appellants having been brought more than five (5) years and more than three (3) months respectively after the accrual of the cause of action, (specifically, twenty six (26) after), is time-barred. Since the right of action is lost, the cause of action becomes a lame duck. See CPC v. INEC (supra).
This action, having been commenced outside the period prescribed by the applicable laws, it is my position that the action is statute-barred and the trial Court lacks jurisdiction to hear same. It cannot be legally resuscitated. Hence, this is the fate of the Appellants’ suit filed at the lower Court.
Consequently, I am in agreement with my lord Bdliya, J.C.A. in his leading Judgment. The Appeal has no redeeming features. For the above reasons and the more detailed ones ably set out in the lead Judgment, I too feel that the Appeal is devoid of merit and should be dismissed. I order accordingly and hereby endorse all the consequential orders made, including the order as to costs.
PETER OLABISI IGE, J.C.A.: I have had a preview of my learned brother’s Judgment, my Lord BDLIYA, JCA, just delivered.
The bone of contention here is whether or not the action instituted by the Appellants leading to this appeal was caught by Section 18 of the Plateau State Limitation Law of 1988.
The action was instituted on 3rd February, 2007 to challenge among other refiefs the validity of THE MANGU EMIRATE/TRADITIONAL COUNCIL (MODIFICATION OF NATIVE LAW AND CUSTOM relating to the SELECTION OF THE DISTRICT HEAD OF BOKKOS DISTRICT) ORDER & 1978 (P.S.L.G.L.N. 2 OF 1978) – Under which 1st Defendant was selected to be the District Head of Bokkos District Under Mangu Emirate/Traditional Council.
The 1st and 2nd Defendants/Respondents challenged the competence of the suit by a Motion on Notice dated 10th July, 2004 and filed on 14th July, 2004 on the ground that by the provisions of Plateaus State Limitation Law No. 6 of 1988 the action was statute barred.
The lower court agreed with the 1st and 2nd Defendants/Respondent in a considered Ruling delivered on 14th day of December, 2004. He accordingly struck out the suit of the Appellants. Apart from Section 18 of the plateau State Limitation Law Section 2(a) of the Public Officers (protection) Law, Cap 111 of Laws of Northern Nigeria 1963 was also enlisted to justify the challenge to the competence of lower court and the action itself.
It is not the saying of the limitation laws that one cannot sue these persons. What the provisions are saying is that you must institute your action timeously within the space of time limited by the limitation laws so the action and rights of the parties are not thereby terminated or extinguished. Such action will become stale and the court will be devoid of jurisdiction to entertain the claims and becomes statutorily prohibited from adjudication on the action in question.
See THE MINISTER OF PETROLEUM AND MINERAL RESOURCES & ANOR VS. EXPO SHIPPING LINE LTD (2010) 12 NWLR (PART 1208) 261 AT 292 F-G where Adekeye J.S.C. said.
“It is not the law that public officers are immune from suit under the Public Officers Protection Act but that suits against them must be instituted within a stated period, otherwise they become stale.”
And on how to compute the time or period of limitation both under the Limitation Law and Public Officers Protection Law Adekeye J.S.C. also dealt with the issue in the case of ALHAJI JIBRIN BALA HASSAN VS DR. MUAZU BABANGTDA ALIYU & ORS. (2010) 17 NWLR (PART 1223) 547 AT 619 H to 620 A where His Lordship of Supreme Court said:
“I have to emphasise also that a defence founded on statute of Limitation like the Public Officers Protection Act is a defence that the Plaintiff has no right of action. It is a defence which can be taken in limine and without any evidence in support, it is sufficient if prima facie the date of taking the cause of action outside the prescribed period is disclosed in the Writ of Summons and State of Claim….
In order to determine the period, consideration, must be given to the Writ of Summons and Statement of Claim alleging when the wrong was committed and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence form witnesses”‘
See also:
1. CHIEF E. W. J. WOHEREM JP VS. JOEL EMEREWA (2004) 13 NWLR (PART 890) 398 AT 415 H to 416 C – D per IGUH J.S.C.
2. JFS INVESTMENT LTD VS. BRAWAL LINE LTD & ORS (2010) 18 NWLR (PART 1225) 495 AT 543 F-H to 544 A per RHODES-VIVOUR J.S.C.
I have examined the Writ of Summons and the Statement of claim. The Law which the Appellants complained took away their rights was promulgated in 1978 while the action was instituted in 2004.
It is abundantly clear that whatever rights of action the Plaintiffs might have had have been extinguished or terminated by efluxion of time prescribed for ventilating of grievances against any person or authority for any action taken or exercised pursuant to the said law or order made in 1978.
On this alone the appeal ought to fail. I fully agree with the conclusion and reasons of my learned brother BDLIYA, JCA, for dismissing the appeal. I also hereby dismiss the appeal. I agree with the order for costs as made by my Lord BDLIYA, JCA.
Appearances
Jonathan A. Mawiyau Esq.For Appellant
AND
Chief S. T. Panwal Esq.For Respondent
