LUKUMAN AMINU V. BOLAJI ALASADE & ORS. (2010)

LUKUMAN AMINU V. BOLAJI ALASADE & ORS.

(2010)LCN/3648(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 24th day of March, 2010

CA/I/128/2001

RATIO

JURISDICTION: WHEN WILL A COURT HAVE JURISDICTION TO ADJUDICATE A CASE

(1) “it is properly constituted as regards numbers and qualifications of the members of the bench; and no member is disqualified for one reason or another and;

(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

(3) the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided; the defect is extrinsic to the adjudication”.

See also, Sken Consult (Nig.) Ltd & Another vs. Godwin Sekond Ukey (1981) 1 SC6 At 26; Dr Maltias Oko Offoboche vs. Ogoja Local Government & Another (2001) 7 SCNJ 472 – 483 (referred); Bendel Newspaper Corporation vs. Okafor (1993) 4 NWLR (Part 289) 617; (1991) 9-10 SCNJ 107; Ibrahim vs. Judicial Service Committee (Kaduna State) (1998) 4 NWLR (Part 584) 1; (1998) 12 SCNJ 255; Permanent Secretary Ministry of Works Etc Kwara State vs. Balogun (1975) NSCC 292; Yare vs. Nunku (1995) 5 NWLR (part 394) 129; (1995) 5 SCNJ 101; Ambode vs. Ministry of Foreign Affairs (2004) 14 NWLR (part 894) 506 – 526 PP at 512, 526 Ratio 5. PER SIDI DAUDA BAGE, J.C.A.

TORT: MEANING AND NATURE OF DETINUE

Detinue is defined by Supreme Court as:-

“A bailee must not be negligent in guarding the bailment. If the sole claim against him is that he was negligent in looking after the goods in his possession and that because of that the goods were lost cannot, in our judgment be brought in detinue. When an action is brought in detinue, it is brought for the Specific recovery of personnel chattels wrongly detained from the person entitled to the possession of them for damages occasioned by the wrongful detainer and examples of how the claim should be brought can be seen in Bullon and Leake’s Precedents of Pleadings 11th Edition Page 427”- Supreme Court in Alhaji Salisu Barau vs. Messrs Caleb Brett and Sons (Nigeria) Ltd. (1968) 1 All NLR 183 at 186. Also, see:- Ordia vs. Piedmont (Nig.) Ltd. (1995) 2 NWLR (Part 379) 516; Florence Omotayo Labede vs. Gregory Otubu (2001) FWLR (Part 43) 207; Julius Berger Nigeria Plc. vs. R.I. 401; Joseph Saliba vs. Roda Yassin (2002) SC 138; (2002) 13 WRN 59; (2003) 14 WRN 105; Yisau vs. Wema Bank Ltd. (2001) 11 WRN 91; Hart vs. Hart (1990) 1 NWLR (Part 126) 276. PER SIDI DAUDA BAGE, J.C.A.

JURISDICTION: EFFECT OF ANY ADJUDICATION DONE WITHOUT JURISDICTION

The law is settled that any adjudication without jurisdiction, no matter how well conducted is a nullity. See: MADUKOLU VS. NKEMDILIM (1962) 2 SC NLR 341. The competence of an action is a threshold issue, which once raised must be considered and resolved before considering any other issue in the proceedings. See: SALAMI VS. OSENI (2202) 14 NWLR (788) 623; ONYENUSHEYA VS. MILITARY ADMINISTRATOR OF IMO STATE (1997) 1 NWLR (482) 429; BALOGUN VS. PANALPINA WORLD TRANSPORT (NIG) LTD. (1999) 1 NWLR(585) 66. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

LIMITATION LAW: EFFECT OF AN ACTION INSTITUTED AFTER THE PERIOD PROVIDED BY STATUTE

JUSTICES

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

LUKUMAN AMINU Appellant(s)

AND

(1) BOLAJI ALASADE
(2) COMMISSIONER OF POLICE, OYO STATE
(3) INSPECTOR EGBEDELE
(4) INSPECTOR ALADE Respondent(s)

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): By a Writ of Summon dated the 6th of January, 1992, the 1st Respondent as Plaintiff at the trial Court instituted the initial Suit No. HIF/28/91 and seeking the sum of N275,000.00 (Two Hundred and Seventy-Five Thousand Naira) only being general and special damages for wrongful arrest and detention and or imprisonment by the Police. Also for wrongful seizure and or detention of his Peugeot 404 Pickup, etc. (This is evidenced at Pages 5-7 of the Record of Appeal).
The Particulars of Damages claimed to have been suffered by the 1st Respondent were given as follows:-
PARTICULARS OF DAMAGE:
General Damages:
(a) The sum of N20,500.00 (Twenty Thousand, Five Hundred Naira only) being general damages for unlawful imprisonment
(b) The sum of N50,000.00 (Fifty Thousand Naira only) being damages in detinue.
(c) The Sum of N21,000.00 (Twenty One Thousand Naira only) being general damages for trespass committed on the Plaintiff’s Room at No.6, Ilupeju Street, Modakeke, Ile-Ife, Osun State of Nigeria by the 2nd, 3rd and 4th Defendants.
Special Damages:
(a) A sum of N157,500.00 (One Hundred and Fifty-Seven Thousand, Five Hundred Naira only) being loss of earnings due to the unlawful seizure and detention of the Plaintiff’s Peugeot 404 Pickup with Registration No. OY 3905 BD by the Defendants for the period of thirty-five (35) months from 3rd February, 1989 to 3rd January 1992, at the rate of N150.00 (One Hundred Fifty Naira) per day, or, at the rate of N4,500.00 (Four Thousand, Five Hundred Naira) a month. Plaintiff also claims loss of earnings from 4th January 1992 until judgment is given at the rate of N150.00 (One Hundred and Fifty Naira) a day.
(b) The return of Plaintiff’s Peugeot 404 Pickup with Registration NO. OY 3905 BD unlawfully seized and detained by the Defendants or, a sum of N26,000.00 (Twenty Six Thousand Naira) its value.
(c) The return to the Plaintiff of all documents listed in Paragraph 9 (a) (ii), (iii), (v) and
(vi) in the Amended Statement of Claim.
The Plaintiff/1st Respondent’s Statement of Claim dated and filed on the 3rd day of January, 1992 was filed along with the Writ of Summons. The crux of the 1st Respondent’s case against the Appellant and the 2nd – 4th Cross-Appellants/Respondents deduced from the Amended Statement of Claim at pages 5 to 9 of the Record of Appeal; also, the Reply to the Defendants’ pleadings at Pages 24 to 26 of the Record of Appeal (hereinafter referred to as “the Record”) is as follows:
The 1st Respondent pleaded that he is a business man. Sometimes in June 1988, the Appellant entered into a business agreement with the 1st Respondent by virtue of which the Appellant gave the 1st Respondent the sum of N37,000.00 (Thirty Seven Thousand Naira) to buy cocoa beans for the Appellant on commission basis. Following the receipt of the money from the Appellant, the 1st Respondent distributed the money among Six (6) Cocoa Farmers for supply of cocoa (Paragraphs 1 and 6 of the Amended Statement of Claim at Page 5 of the Record). The 1st Respondent was later informed by the Cocoa farmers that heavy rains had rendered their cocoa beans useless. The 1st Respondent passed this information to the Appellant who told him not to bother but hold on, until cocoa beans would be of good quality. In November 1988, the 1st Appellant sent his driver to the 1st Respondent that he was no longer interested in the purchase of cocoa beans and requested the refund of the N37,000.00 (Thirty Seven Thousand Naira). The 1st Respondent sent the sum of N5,000.00 (Five Thousand Naira) through the Appellant’s driver. On February 3, 1989, the Appellant accompanied by 3rd and 4th Respondents went to the 1st Respondent’s house at No.6, Ilupeju Street, Modakeke, Ile-Ife. On arrival, the Appellant identified the 1st Respondent to them. The 3rd and 4th Respondents arrested the 1st Respondent and searched his house. After the search, the 3rd and 4th Respondents seized the following from the 1st Respondent:
(i) Peugeot 404 Pickup vehicle registered as OY 3905 BD;
(ii) Ignition key of the said vehicle;
(iii) Certificate of Incorporation of 1st Respondent’s Eleduwe (Nig.) Ltd.;
(iv) Booklet of Way Bills;
(v) A document evidencing a pledge by a cocoa farmer; and
(vi) A passport belonging to one Jimoh Agbeda of 86, Amola Street, Modakeke, Ife, deposited as a security for money received from the 1st Respondent for the supply of cocoa to the Appellant.”
The first Respondent and the above listed items were taken by the 3rd and 4th Respondent from Modakeke, Ife to Iyaganku Police Station. The 1st Respondent was detained at Iyaganku until 6th February, 1989 before being granted bail.
In his judgment delivered on the 20th March, 1995, the learned trial Judge awarded a total sum of N417,000.00 (Four Hundred and Seventeen Thousand Naira) for the Plaintiff/1st Respondent as general and special damages in a claim for detinue in which N352,000.00 is damages for wrongful seizure of a pickup vehicle for six years at N150.00 per day against the 2nd, 3rd and 4th Defendants after striking out the name of the 1st Defendant, the Commissioner of Police for wrongful joinder and dismissed the Plaintiff/1st Respondent’s claim against him. The learned trial Judge also dismissed the 4th Defendant’s Counter-claim of N32,000.00 against the Plaintiff who admitted the claim.
The Appellant was irked and dissatisfied with the decision of the trial Court and hence filed his Notice of Appeal dated 23rd day of March, 1995 and raised five grounds of appeal. By the Amended Appellant’s Brief dated 11th day of January, 2010; filed on the 19th January 2010, the Appellant Counsel, Akeem Agbaje Esquire, distilled Three (3) Issues from the Five (5) Grounds of Appeal for determination as follows:-
(1) Whether or not in all the circumstances of this case, the learned trial Judge was in error:
(a) in taking the issue of joinder of the 1st Defendant/Respondent suo moto and proceeding to strike out his name from the suit and to dismiss the claim of the Respondent against him without giving the parties opportunity of being heard on it.
(b) in giving judgment against the Appellant on the Respondents’ claims; and
(c) in non-suiting the Appellant’s claim against the Respondent having regard to the evidence before the court?
(2) Whether or not the learned trial Judge acted on erroneous principles in the exercise of his judicial discretion in the award of damages.
(3) Whether or not the learned trial Judges’ approach in evaluation evidence is wrong, occasioned a miscarriage justice, a denial of fair hearing which has rendered:
(a) his findings liable to be interfered with by the Court of Appeal
(b) the judgment against the Appellant in respect of respondent’s claim liable to be set aside and dismissed and
(c) the order of non-suit of the Appellant’s claim liable to be set aside and judgment entered against the Respondent for counter claim.
The 1st Respondent formulated Four (4) Issues from the Five (5) Grounds of Appeal as follows:-
(1) Whether the striking out of the name of the 1st Defendant (2nd Respondent in the appeal), occasioned a miscarriage of justice against the 4th Defendant/Appellant.
2) Whether the Appellant adduced sufficient evidence to prove his Counter claim against the 1st Respondent.
(3) Whether the award of damages by the learned trial Court was in accordance to law.
(4) Whether in the circumstance the learned trial Judge was right to have given judgment in favour of the 1st Respondent.
The 2nd – 4th Cross Appellants/Respondents’ Counsel also formulated Four (4) Issues from the Five (5) Grounds of Appeal and they are as follows:-
(1) Whether the lower Court’s decision that the arrest of the 1st Respondent and the detention of his vehicle were unlawful is justified in law in view of the facts of the case and the relevant laws.
(2) Whether the lower Court had jurisdiction to try the Plaintiff’s case having been manifestly caught by the provisions of the Public Officers Protection Act/Laws of Oyo State.
(3) Whether the decision of the lower Court that the claim of the Plaintiff succeeds against the 2nd and 3rd Defendants is justifiable in law in view of the pleadings and the evidence adduced at trial.
(4) Assuming without conceeding that, the Plaintiff’s vehicle was unlawfully detained, whether the award of damages and costs ordered by Court was not improper/excessive particularly when the 1st Respondent had a duty to mitigate his damages which was not done in this case.
In arguing Issue One (1), which covers Grounds 2 and 3 of the Appeal, learned Counsel to the Appellant submitted that, the findings of the learned trial Judge in paragraph 1.09 (i) – (ii), is not proper for a Court to raise a point suo mota and decided without giving the parties an opportunity of being heard on it as was done by the learned trial Judge. See:- Imah vs. Okogbe (1993) 9 NWLR (Part 316) 159 At 178; A.C.B. vs. Yesufu (1980) 1-2 SC 49; Laniyi vs. Oyede (1994) 6 NWLR (Part 348) 82 at 91; Ishola vs. Ajiboye (1994) 6 NWLR (Part 352) 506 At 576 and 591.
Learned Counsel to the Appellant further submitted that, the 1st Defendant is a necessary party and has been rightly joined and sued as Commissioner of Police because, he is the Head of Police Force of Oyo State. Accordingly, the learned trial Judge misdirected himself as to the correct position of the 1st Defendant when he proceeded to strike out his name from the suit. See:- Section 195 (2) of the Constitution of the Federal Republic of Nigeria 1979. Also, Section 341 of the Police Act Nigeria.
Learned Counsel to the Appellant submitted further that, the law is that, the Plaintiff in order to succeed, must not rest his case on the mere fact of reporting of the case and pointing him out to the Police, but must establish that, at the time the Police decided to arrest him, the Police did not act on their own volition but at the instigation of the Defendant. See:- Nwadinobi vs. Botu (2002) 96 FWLR 450 at 458 (E) 459 (B-G); Gbajor vs. Ogunberequi (1958) WRNLR 31; Adefunmilavo vs. Oduntan (1958) WRNLR 31; Mandillas and Karaberis vs. Apena (1969) ALL NLR 390.
Learned Counsel to the Appellant further submitted that, the findings on the issue of instigation are based on speculations. That being so, it is trite law that a Judge should not act on mere speculation but must decide a case on facts satisfactorily proved before him by positive evidence. See:- Olanleye vs. Afro Continental Nig. Ltd. (1996) 7 NWLR (Part 421) 21. Learned Counsel to the Appellant submitted further that, the learned trial Judge also found the admission of the 2nd Defendant that the 4th Defendant did not instruct them to seize the documents. It is not proper for the Court to refuse or believe a piece of evidence merely because, it might tend to exonerate the Appellant and for that reason, hold that the evidence is aimed at shielding another person and at the same time protect the witness. Learned Counsel to the Appellant submitted from evidence before the Court, the Appellant had shown that the Police acted on their own and not at the instigation of anybody; and the learned trial Judge was wrong in holding otherwise and to set aside the decision of the learned trial Judge which held the Appellant liable in damages to the Respondents.
Learned Counsel to the Appellant submitted further that, the learned trial Judge struck out the counter-claim of the Appellant on the ground that, he did not state the loan was for any consideration or its purpose, in paragraphs 4 and 11 of the Statement of Defence, the Appellant stated the purpose of the loan was for buying cocoa. The Respondents admitted receiving N37,000 from the Appellant for buying cocoa in paragraph 6(a) of his Amended Statement of Claim and gave evidence that, he was still owing the Appellant N32,000.00 (page 39, lines 27-32 of the Record; there is also the evidence from DW2 confirming the Respondents indebtedness of N32,000.00 and the purpose.
Learned Counsel to the Appellant further submitted that, the Respondents’ only defence being the Court lacked jurisdiction to entertain the action, it was not proper for Court below to raise any of the issue or points taken by the learned trial Judge which were not taken in the address of counsel for the Respondent and formulate them for determination thereby making a case of his own, or formulate his own case from the evidence before it and to give a decision based on his own postulate quite different to the case of the parties. See:- Ochonma vs. Unosi (1965) NMLR 321 citing with approval, the case of Adeniyi vs. Adeniyi (1972) 4 SC 10 at 17. Learned Counsel finally submitted on issue One(1) that, this case being an admitted claim in respect of which there was abundant evidence of proof, the learned trial Judge was in error to hold that the counter-claim cannot succeed because, it is not established to the satisfaction of the Court; and to proceed not dismiss it or non-suited it. This Court is urged to set aside the Order of non-suit.
In arguing Issues Two (2) and Three (3) which cover Grounds 1, 4, and 5 of the appeal, learned Counsel to the Appellant submitted on the award of damages, the learned trial Judge acted on wrong principles of law. The learned trial Judge failed to exercise his judicial discretion judicially and judiciously by his failure to take into action account relevant considerations while giving undue weight to irrelevant matters and thereby came to a wrong conclusion. Learned Counsel to Appellant further submitted that, the general practice is that a claim for loss of earnings is a claim in special damages and must be strictly proved in a sense that full particulars thereof must be given by the Plaintiff in his pleadings of his rate of earnings and of such other facts as may be necessary, to enable the Court as best as accurate as it can assess the actual amount of Plaintiff’s loss. See:- Benin Rubber Producers Ltd vs. Ojo (1997) NWLR (Part 9) 388 At 410 (F-G). Learned Counsel to Appellant submitted further that, the Respondent has not discharged the onus on him to prove his entitlement to special damages strictly by credible evidence of such a character as would suggest that, he is entitled to an award under this head of damage. See:- Dumez Nig. Ltd. vs. Ogboli (1972) 1 All NLR (Part 1) 241. Learned Counsel to the Appellant submitted further that, the Respondent did not act reasonably by leaving his vehicle with the Police for six years. He could have mitigated his loss by
(a) Finding money to pay the balance of N32,000.00 which he admitted owing.
(b) He could buy a replacement vehicle and
(c) He could apply to the Court an order directing that the vehicle be released to him. He did nothing for six years.
This Court is urged to hold that the Respondent is in breach of duty to mitigate and that, if he is entitled to anything, it should not be for more than three months. See:- Ordia vs. Piedmont Nig. Ltd. (1995) 2 NWLR (Part 379) 516.
The learned Counsel to the Appellant submitted further that, there is a miscarriage of justice and perverse finding for the trial Court non-suiting an admitted and proved claim and violation of some principle of law or procedure by the Court granting and making orders which were not asked for without amendments and acting on unpleaded facts. See:- Overseas Construction Coy. Nig. Ltd. vs. Creek Enterprises Nig. Ltd (1985) 2 SC 158 at 178-180; Polycarp Ojogbue vs. Nnubia and Another (1972) 6 SC 227. Learned Counsel to the Appellant finally submitted that, the Appellant will contend with respect that, in the circumstances stated above, this Court is entitled to and indeed has a duty to interfere and set aside findings of the trial Court. See:- Overseas Construction Coy. Nig. Ltd. (Supra) at Page 180. This Court should allow the appeal, set aside the judgment given against him and dismiss the claims of the Respondent against him. Also, set aside the order on non-suit of his Counter-claim and give judgment in his favour against the Respondent.
In response to the arguments of the Appellant, the learned Counsel to the 1st Respondent submitted on Issue One of their Brief of Argument which is from Ground 3 of the Notice of Appeal that without prejudice to our objection to the said ground, we submit that, the 1st Defendant/2nd Respondent is not a necessary party to this action. At best, he could possibly have been a likely witness for the Defendants. It is to be noted that, the learned Counsel to the 1st Respondent was absent on the 9/2/2010 when the said Brief was adopted, despite adequate notice, the Notice of Preliminary objection contained in page 9 of his Brief is deemed abandoned. Learned Counsel to the 1st Respondent further submitted that, the 1st Defendant/2nd Respondent would have been a necessary party in this case if the 1st Respondent not only had a cause to complain about him or his office, but actually complained about him; or his office and it was impossible to deal with the question raised in the suit without naming and involving the 1st Defendant/2nd Respondent.
Learned Counsel to the 1st Respondent submitted that, assuming without conceding that the 1st Defendant/2nd Respondent was a necessary party, the fact that his name was struck out does not vitiate the trial. See:- Unilife Development Coy. Vs. Adeshigbin (2001) 4 NWLR (Part 704) 609; Oduwole vs. LSDPC (2004) 9 NWLR (Part 878) 382 at 407, Paragraph F. Learned Counsel to the 1st Respondent further submitted that, contrary to the proposition of the Appellant, the learned trial Judge was empowered by Order 8 Rule 10 (2) of the Oyo State High Court (Civil Procedure) Rules, Cap.46 Laws of Oyo State 1978 to suo motu strike out the name of the 1st Defendant/2nd Respondent since the Court could “effectually and completely adjudicate upon and settle all the questions involved in the cause of matter”, without making the 1st Defendant a party to the suit.
Learned Counsel to the 1st Respondent finally submitted on this Issue that even if it was wrong to have struck out the name of the 1st Defendant/2nd Respondent, no miscarriage of justice was thereby occasioned. There is a miscarriage of Justice if and only if the decision reached is prejudicial, or inconsistent with the substantial rights of a party. See:- Kraus Thompson Organisation Ltd vs. Unical (2004) 9 NWLR (Part 879) 631 At 654 Paragraph H This Court is urged to resolve this Issue in favour of the 1st Respondent.
On Issue Two (2) of the 1st Respondent’s Brief of Argument, learned Counsel submitted that, the issue is derived from Ground 2 of the Notice of Appeal. It is our contention that the Appellant did not adduce evidence to prove his Counter-claim; rather his evidence was at variance with the averments in support of his Counter-claim. Learned Counsel to the 1st Respondent further submitted that, this Court should agree with the learned trial Judge that evidence lead in support of the fact that money was collected for a cocoa purchase contract cannot be used to support pleadings alleging that money was lent out but not repaid. The lower Court found that, the 4th Defendant in an attempt to conceal the true purpose of the transaction left unsatisfactory the discharge of the burden of proof imposed on him.
Learned Counsel to the 1st Respondent further submitted that, the learned trial Court was right to have held that evidence at variance with pleadings goes to no issue. Further that the Appellant did not prove his Counter-claim and the trial Judge was not wrong to have non-suited his claim. See:- Ogboda vs. Adulugba (1971) 1 All NLR 68 At 73.
Learned Counsel to the 1st Respondent submitted finally on the issue that whereas the Counter-claim was for money allegedly borrowed – to the 1st Respondent, the 1st Respondent’s reply was that he did not borrow any money from the Appellant. It is trite law that an admission must be unequivocal. This court should hold that the 1st Respondent did not admit the Counter-claim.
On Issue Three (3), learned Counsel to the 1st Respondent submitted that the award of damages by the learned trial Judge was in accordance to law. Further on the award of general damages for detinue does not amount to double compensation. The trial Court judicially noticed issues like the gasoline to return the vehicle to Modakeke from Ibadan, mechanical faults that resulting from being out of use for so long such as running down of batteries. This complaint does not relate to any ground of appeal and we urge this Court to disregard it. On Court’s taking judicial notice of notorious facts, see:- Godwin Moghalu vs. Rodrick Eqwunqwu Ude (2001) 4 WRN13.
Learned Counsel to the 1st Respondent further submitted that, double compensation arises where a party has been fully compensated for a tort but receives further compensation for the same tort under a different head or name. By law against double compensation, a party who has been fully compensated under one head of damage for a particular injury cannot be awarded damages in respect of the same injury under another head. See:-
Artra Industries Nig. Ltd. vs. The Nigerian Bank for Commerce and Industry SC. 27/1997 (1988) 4 NWLR (Part 546) 387; Onaga vs. Micho & Coy. (1961) 2 SCNLR101 referred to).
Learned Counsel to the 1st Respondent further submitted that, the cause of action for detinue is separate and distinct from the cause of action for loss of earnings they are not the same tort. A claim for damages for detinue is not mutually exclusive with a claim for loss of earnings. To hold otherwise would be to say that, a person against whom the tort of detinue has been committed and who has also suffered loss of earnings thereby, would have to choose between his right to general damages for the tort of detinue, or the special damages of loss of earnings. See:- Amira Nig. Ltd. Vs. Mal. Nigeria Ltd. (2001) 17 NWLR (Part 742) 469 at 505 Paragraph G. Learned Counsel to the 1st Respondent submitted further that, the evidence of the 1st Respondent that he was realizing about N150.00 daily from the use of the vehicle was not contradicted by any of. Defendants including the Appellant. See:- Arabami vs. A.B.I. Ltd. (2003) 3 MJSC 61 at 99 Paragraph G.
Learned Counsel to the 1st Respondent furthered his submission that, if this Court holds that the unchallenged ipse dixit of the 1st Respondent sufficiently proves the specific claim of N150.00 per day, we urge the Court to resolve this Issue in favour of the 1st Respondent by agreeing with and allowing the judgment of the learned trial Judge on damages for loss of earnings. See:- Obasuyi Vs. Business Ventures ltd. (2005) 5 NWLR (Part 658) 695. We urge the Court to resolve this Issue in favour of the 1st Respondent.
On Issue Four (4), learned Counsel to the 1st Respondent submitted that, it is related to Ground 5 of the Notice of Appeal. The learned trial Judge found the Appellant and other defence witness not to be credible witness of truth. The learned trial Judge had the opportunity of studying the witnesses. We urge this Court to hold that, the Appellant has not presented any fact, circumstances or argument that warrants the interference of this Court in the opinion of the lower Court as to credibility of defence witnesses. Learned Counsel to the 1st Respondent submitted further that a holistic reading of the proceedings and judgment of the learned trial Judge would show that the 1st Respondent was entitled to judgment of the lower Court. See:- Agu vs. Nnadi (2003) 1 MJSC 51 at 58 Paragraphs D-F
Learned Counsel to the 1st Respondent finally submitted that, this Court should resolve the 4th Issue in favour of the 1st Respondent by holistically considering the pleadings of parties as well as proceedings and judgment of the lower Court. We urge this Court to hold that, the 1st Respondent is entitled to judgment of the lower Court.
On 2nd – 4th Cross Appellants/Respondents’ Amended Brief of Argument dated and filed the 22nd April, 2008, learned Counsel in arguing his Issue One (1) which covered Grounds 2, 3, and 6 of the Cross-Appellant’s Ground of Appeal submitted that, the 2nd – 4th Respondents had pleaded in paragraphs 4, 5, 6, 7, 8, 9, 11, 13 and 14 of their Statement of Defence at pages 21-22 of the record on the issue of arrest and detention that the arrest of the Plaintiff and detention of his vehicle was as a result of the allegation of the offence of obtaining by false pretence made against him by the 4th Defendant and that they were accompanied by a search warrant duly endorsed by competent authority.
Learned Counsel submitted further that, the 1st Respondent did not deny that, he made a report against the Plaintiff to the Police. This fact was pleaded in his paragraphs 9 and 10 of the 4th Defendant’s Statement of defence page 10 of the records. Contrary to the pleadings of the Plaintiff at paragraph 8 (I) on page 6 of the record that the 2nd and 3rd Defendants entered his room without his consent or concurrence, he admitted at page 36, line 18 that, I allowed them to search my room.”
Learned Counsel submitted further that, the Plaintiff and his witnesses did not at anytime during trial lead evidence that he was not shown a warrant before his arrest and detention of his car. In fact, paragraph 9 of the 2nd – 4th Respondents’ Statement of Defence which is to the effect that the Plaintiff was remanded in Police cell on 4th and 5th February, 1989, because nobody came to stand surety for him until 6th February, 1989; was admitted by the Plaintiff in his reply at page 24, paragraph 2 thereof. Learned Counsel further submitted that, it was also the evidence of DW1- Inspector Titus Egbedele, at pages 45 and 46 of the record that the Plaintiff was arrested and the vehicle detained based on the allegation that he had used the money given him to repair his vehicle. This piece of evidence was not contradicted by any of the witnesses.
Learned Counsel further submitted that it is trite law what is admitted needs no further proof. The conclusions reached by the Court on page 70, lines 18-20 that Mr. Adeyemi went on 3rd February, 1989 to bail the Plaintiff, but he was not allowed to do so until Monday, 6th February, 1989 and so therefore, the 3rd – 4th Respondents must damnified in damages cannot be correct. This is because, this evidence was not pleaded and so ought to be disregarded. See:- Awara vs. Alalibo (2002) 18 NWLR Part (799) 484-554 at pages 491, and 503 ratio 9.
Learned Counsel submitted further that by the provisions of the Police Act, particularly Sections 20 – 25 thereof and Section 10 of: (he CPA, the Police has the power to search and arrest without warrant; see particularly Section 24 thereof. We urge the Court to resolve Issue One (1) in favour of the 2nd – 4th Cross Appellants/Respondents.
On Issue Two (2), learned Counsel submitted that the second is based on Ground 4 of the 2nd – 4th Cross-Appellants/Respondents’ Grounds of Appeal. A Court will have jurisdiction to adjudicate over a case when the conditions enumerated in the case of Madukolu vs. Nkemdilim (1962) All NLR 587; (2001) 3 SCM 185 have been fulfilled. There must be no future in the case which prevents the Court from exercising its jurisdiction. Learned Counsel submitted further that, there can be no denying the fact that 2nd – 4th Cross-Appellants/Respondents are Public Officers and are therefore protected by the provisions of the Public Officers Protection Act Cap 379 LFN 1990. By Section 2 of the said Act, an action against a public officer must be commenced within three months after the Act. Since the cause of action arose on the 3rd of February, 1989 and the suit, that is, HIF/28/91 was filed on the 24th March, 1991; the Plaintiff’s action is statute-barred. See:- the case of Ambode Vs. Ministry of Foreign Affairs (2004) 14 NWLR (part 894) 506-526 Particularly at 572, 526, Ratio 5.
Learned Counsel submitted further that, the fact that the Plaintiff alleged that he made several (seventy-five) visits to the Police in order to retrieve his car is not a defence in this case. See:- Ambode’s case (supra) At Pages 512 and 525 Ratio 4. Also, Offoboche vs. Ogaja Local Government (2001) 7 SCNJ 472-483. This Court is urged to resolve the second issue against the 1st Respondent.
On the third Issue which covered Grounds 1, 4 and 6 of the 2nd – 4th Cross-Appellants/Respondents, learned Counsel submitted that, the 2nd and 3rd Defendants/Respondents cannot be rightly punished for the offence allegedly committed in their official capacity while carrying out the instruction of their boss. Learned Counsel submitted further that, the Police by virtue of their duties, can act by either seeing the crime being committed in their presence or upon the reasonable information to that effect as in the instance case. The Police are therefore entrusted among others with the duties of detection of crime and apprehension of offenders. This they do by causing the arrest of the suspect, collect information in the process for their investigation. And to be able to do this effectively, Police are vested with very wide power of arrest, detention and search the lawfulness and hence the legality of the action of the 2nd and 3rd Defendants/Respondents. See:- Dr. Onabamiro Vs. The State (1968) 1 ANLR 101 At 123; in doing their work, the Police are not finally to determine the guilt or innocence of the person arrested. See:- Oteri vs. Okorodadu & Another (1970) 1 ANLR 194 at 200. Also, a Police Officer can arrest a person if he reasonably suspects that he has committed an offence. See:- Ajie vs. Iyana & Another (1977) BDSJ 1 at 32.
Learned Counsel submitted further that, there is abundant evidence that the Plaintiff collected the sum of N37,000.00 and after several demands by the 4th Defendant; he refunded only the sum of N5,000.00.
Learned Counsel submitted further that, the law is, he who comes to equity must come with clean hands. There is no evidence in the Record that, the Plaintiff paid the remaining sum of N32,000.00 since 1998 till 20th March, 1995; when judgment was given on the case. It may well be that, he has not even paid a dime since then; and yet the trial Court awarded to him the sum of over Three Hundred Thousand Naira as damages/costs. This Court is urged to resolve the third issue (3) against the Plaintiff.
On the fourth Issue which covered Ground 5 of the Cross-Appellants/Respondents Ground of Appeal, Learned Counsel submitted that, apart from trying to seek administrative avenues to collect his vehicle which is denied and was in fact denied in paragraph 15 of the Statement of Defence of the 2nd – 4th Respondents, the Plaintiff had a duty to mitigate his loss by bringing the necessary application before the Court. Learned Counsel submitted further that, the order of damages and loss of earnings/use is on this same alone manifestly unjustified. See:- Halsbury’s Laws of England Fourth Edition Volume 12 (1) At Page 323. Learned Counsel finally submitted that, this Court should allow this cross-appeal and set aside the judgment of the lower Court; and enter judgment in favour of the 2nd – 4th Defendants; or, alternatively dismiss the Plaintiff’s claims against the 2nd – 4th Defendants in its entirety.
Learned Counsel to the Appellant entered a reply to 1st Respondent’s Brief of Argument dated 8th September, 2007. The reply was essentially a reply to the 1st Respondent’s learned Counsels’ Preliminary objection in paragraph 3.1 at page 9 of the 1st Respondent’s Brief. It was stated earlier by this Court that, when this matter came up for the hearing of the appeal on the 9th of February, 2010, learned Counsel to the 1st Respondent who was adequately put on notice as to the date of the hearing of the appeal, the learned Counsel was absent, and without any communication with the Court. The Brief of Argument of the learned Counsel to the 1st Respondent filed earlier in accordance with the Rules of this Court was deemed argued. However, the Notice of Preliminary objection of the 1st Respondent since not moved, again in accordance with the Rules of this Court, is deemed to have been abandoned. Once the 1st Respondent’s Notice of Preliminary objection is deemed abandoned, as is the case in the instant appeal, the reply of the Appellant in respect of said abandoned Notice of Preliminary objection becomes superfluous and goes with the abandoned Notice of Preliminary objection.After putting a birds eye on the three sets of issues formulated by the parties for the determination of this appeal, the Appellant’s Issue 1, covered the 1st Respondent’s Issues 1, 2, and 3; and Issues 1, 3 and 4 of the 2nd – 4th Cross-Appellant/Respondents’ Amended Brief of Argument. Also, Issues 2 and 3 of the Appellant’s Brief covered Issue 2 of the 1st Respondent’s Brief. It is my respectful view that the issues in contention in this appeal are as follows:
(1) Whether the lower Court had jurisdiction to try the Plaintiff’s case having been manifestly caught by the provisions of Public Officers Protection Act.
(2) Whether the claims of detinue can lie against Appellant, who was the 4th Defendant in the lower Court.
(3) Whether the lower Court was right to have non-suit the Counter-claim of the Appellant.”
On Issue One (1), whether the suit at the time the Appellant had commenced it at the lower Court against the three out of the 4 Respondents, that is:-
(1) Commissioner of Police, Oyo State,
(2) Inspector Egbedele
(3) Inspector Alade, who without any doubt are Public Officers, was caught up by the provision of the Public Officers Protection Act.
The Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria 1990, Section 2 thereof provides:-
“whether 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 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 in case of a continuance of damage or injury within three months next after the ceasing thereof
By the Amended Statement of Claim of the Plaintiff at the lower Court, Paragraph 8 thereof dated 3rd January 1992, the Plaintiff avers:-
“(a) On the 3rd day of February, 1989, the 4th Defendant accompanied by the 2nd and 3rd Defendants came to the Plaintiff’s house at No.6, Ilupeju Street, Modakeke, IIe-Ife.
(b) That the 4th Defendant identified and showed the Plaintiff to the 2nd and 3rd Defendants.
(c) That there and then the 2nd and 3rd Defendants told the Plaintiff that the Plaintiff was under arrest and that they wanted to search his room.
(d) That the Plaintiff showed his room to the 2nd and 3rd Defendants who opened the door of the Plaintiff’s room, entered and ransacked the room without the consent, authority and or concurrence of the Plaintiff.
(e) That after ten minutes of thorough search of the Plaintiff’s room, the 2nd and 3rd Defendants required to produce his Bank Teller and Passbook; the Plaintiff did so and the 2nd and 3rd Defendants scrutinized the two documents thoroughly.
(f) That when the 2nd and 3rd Defendants at the instigation of the 4th Defendant did not see new documents or savings of money in the Plaintiff’s Bank Teller and Passbook they returned the documents to the Plaintiff.
Paragraph 9 of the Plaintiff’s Amended Statement of Claim further states as follows:-
(a) That the 2nd and 3rd Defendants at the instigation of the 4th Defendant wrongfully collected, seized, detained and still detain the following documents and properties from the Plaintiff:-
(i) The Plaintiff’s Peugeot 404 Pick-up with Registration No. OY 3905 BD.
(ii) The ignition key of the Plaintiff’s Peugeot 404 Pick-up with Registration No. OY 3905 BD.
(iii) The Plaintiff’s Certificate of Incorporation of Eleduwe (Nig.) Limited.
(iv) Plaintiff’s Booklet of Way Bills.
(v) A document wherein a cocoa farmer pledge to the Plaintiff.
(vi) A passport belong to one Jimoh Agbede of 86, Amola Street Modakeke, Ile-Ife, deposited to the Plaintiff by the owner as security for the money (N1,800.00) Jimoh Agbede received from the Plaintiff as stated in paragraph 6 (c) (i) above.
(b) That it was the 3rd Defendant who drove the Plaintiff’s Peugeot 404 Pick-up with Registration No. OY 3905 BD from Modakeke to Ibadan. The Plaintiff was also whisked away to Ibadan by the 2nd and 3rd Defendants at the instigation of the 4th Defendant.
(c) That on getting to Iyaganku Police Station Ibadan on Friday 3rd February 1989, the Plaintiff was locked up in the Police cell and his motor vehicle was wrongly detained by the 2nd and 3rd Defendants without telling the Plaintiff his offence or obtaining statement from him.
(d) That the Plaintiff remained in the Police at Iyaganku Police Station Ibadan until the Monday,the 6th day of February 1989; when one Mr. Folorunsho Adeyemi a former member of Oyo State House of Assembly came from IIe-Ife and bailed out Plaintiff from the custody of the 2nd and 3rd Defendants.
(e) That it was immediately before the Plaintiff was granted bail on 6th February, 1989 that the 3rd Defendant obtained statement from the Plaintiff.
(f) That it was as a result of the statement obtained from the Plaintiff that the 2nd and 3rd Defendants got to know the names of the cocoa farmers to whom the Plaintiff had given the 4th Defendant money”.
From Paragraphs 8 and 9 of the Amended Statement Claim of the Plaintiff quoted above, the Plaintiff was arrested by the 2nd and 3rd Defendants on the 3rd of February 1989. He was detained by the two (2) Defendants and released on bail on the 6th February, 1989. By his Writs of Summons, the Plaintiff commenced this action against the four (4) Defendants, filed on the 24th of March, 1991. At the time of filing the action by the Plaintiff; or commencement of this action by the Plaintiff at the lower Court, it was statute barred. It was therefore wrong on the part of the trial Court to have assumed jurisdiction on the matter against the 1st, 2nd and 3rd Defendants, because at the time the action was commenced against them, it was statute barred brought after the 3 months limitation period allowed for commencement of such action under the public Officer Protection Act Cap 379 LFN 1990. The trial Court had no jurisdiction to determine the actions commenced against the 1st, 2nd and 3fd Defendants being Public Officers. The action of the Court striking out the 1st Defendant’s name from the suit for what it termed as improper joinder was of no moment as it was done without the collateral jurisdiction to so act.

It is trite law that a Court will have jurisdiction to adjudicate over a case when the conditions precedent confirming such powers on the Court are fulfilled. See: – Madukolu vs. Nkemdilim (1962) 1 All NLR 587; (2001) 3 SCM 185 referred. A Court is only competent when:-
(1) “it is properly constituted as regards numbers and qualifications of the members of the bench; and no member is disqualified for one reason or another and;
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided; the defect is extrinsic to the adjudication”.
See also, Sken Consult (Nig.) Ltd & Another vs. Godwin Sekond Ukey (1981) 1 SC6 At 26; Dr Maltias Oko Offoboche vs. Ogoja Local Government & Another (2001) 7 SCNJ 472 – 483 (referred); Bendel Newspaper Corporation vs. Okafor (1993) 4 NWLR (Part 289) 617; (1991) 9-10 SCNJ 107; Ibrahim vs. Judicial Service Committee (Kaduna State) (1998) 4 NWLR (Part 584) 1; (1998) 12 SCNJ 255; Permanent Secretary Ministry of Works Etc Kwara State vs. Balogun (1975) NSCC 292; Yare vs. Nunku (1995) 5 NWLR (part 394) 129; (1995) 5 SCNJ 101; Ambode vs. Ministry of Foreign Affairs (2004) 14 NWLR (part 894) 506 – 526 PP at 512, 526 Ratio 5.
On the whole therefore at the time of commencing this action against the 2nd, 3rd and 4th Respondents at the lower Court, it was statute-barred. All the findings made by the trial Court against the three (3) Respondents goes to no issues. Issue 1 resolved against the 1st Respondent and in favour of the 2nd-4th Cross-Appellants/Respondents. Cross-Appeal allowed.
The second Issue is whether the claim of detinue by the 1st Respondent (Plaintiff) at the lower Court can lie against the Appellant who was the (4th Defendant) at the lower Court. The 4th Defendant by the findings of the trial Judge which said:-
“The 4th Defendant is the architect of the events leading to the commission of the wrongs against the person and properties of the Plaintiff. (See page 73 lines 24 – 26 of the records).”
The trial Judge proceeded and found the 4th Defendant liable jointly and severally with the 2nd, 3rd and 4th Respondents (then 1st, 2nd and 3rd Defendants). The damages awarded was (b) Detinue N20,000.00 (c) for seizure of vehicle and for loss of earnings he awarded the sum of N321,750.00 (Three Hundred and Twenty-One Thousand, Seven Hundred and Fifty Naira) plus extra days damages of N150,00 (One Hundred and Fifty Naira) per day, computed from 18th January, 1995 totaling (a), (b), (c), (d), the sum of Three Hundred and Fifty-Six Thousand, Seven Hundred and Fifty Naira (N356,750.00) plus extra number of days from 18th January, 1995 to 20th March 1995, totaling Three Hundred and Eighty-Two Thousand (N382,000.00) for six years.
Detinue is defined by Supreme Court as:-
“A bailee must not be negligent in guarding the bailment. If the sole claim against him is that he was negligent in looking after the goods in his possession and that because of that the goods were lost cannot, in our judgment be brought in detinue. When an action is brought in detinue, it is brought for the Specific recovery of personnel chattels wrongly detained from the person entitled to the possession of them for damages occasioned by the wrongful detainer and examples of how the claim should be brought can be seen in Bullon and Leake’s Precedents of Pleadings 11th Edition Page 427″- Supreme Court in Alhaji Salisu Barau vs. Messrs Caleb Brett and Sons (Nigeria) Ltd. (1968) 1 All NLR 183 at 186. Also, see:- Ordia vs. Piedmont (Nig.) Ltd. (1995) 2 NWLR (Part 379) 516; Florence Omotayo Labede vs. Gregory Otubu (2001) FWLR (Part 43) 207; Julius Berger Nigeria Plc. vs. R.I. 401; Joseph Saliba vs. Roda Yassin (2002) SC 138; (2002) 13 WRN 59; (2003) 14 WRN 105; Yisau vs. Wema Bank Ltd. (2001) 11 WRN 91; Hart vs. Hart (1990) 1 NWLR (Part 126) 276.
In the instant appeal, the vehicle Peugeot 404 Pick-up belonging to the 1st Respondent from the record was detained by the 3rd and 4th Respondents; and not the Appellant. The liability of the 3rd and 4th Respondents in respect thereof earlier on in this judgment, is rescued by the provision of the Public Officers Protection Act Cap 379 LFN 1990 which rendered the prosecution against them statute-barred.
As to the Appellant, the 1st Respondent had every opportunity to have mitigated the losses he incurred as a result of the unwarranted detention of his vehicle for a period of about 4 years, as argued by the learned Counsel to the Appellant which this Court agrees with. The 1st Respondent then the Plaintiff never in the evidence before the Court, denied that money in the sum of N37,000.00 was given to him by the Appellant, whatever it was meant for, the Appellant said, it was a loan to draw some commission, the learned trial Court in its finding calls it a loan. The 1st Respondent said it was not a loan, but the money was given to him by the Appellant to distribute to cocoa farmers. Whatever the money was meant for, one fact stands very clear, the 1st Respondent admitted, when the Appellant sent his driver, one Shittu demanding the refund of the said N37,000.00,he gave to Shittu N5,000.00, leaving a balance of N32,000.00, This fact is from the 1st Respondent himself. If the 1st Respondent wanted to mitigate the long period of the detention of his vehicle he could have paid back the balance of N32, 000.00 to the Appellant, and get back his vehicle. He did not and from the record he has not refunded back the balance of N32,000.00 which he admitted responsibility at least by the singular payment of the N5,000.00. The 1st Respondent has not taken any reasonable step to mitigate what he refers to as his daily earnings from the detained vehicle, yet the learned trial Judge awarded to him what he simply asked for. The case of British Westinghouse Coy. vs. Underground PLY (1912) AC 673, 689, is the most authoritative on this subject. It was held:-
“The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach, but this first principle is qualified by a second which imposes on a Plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps”. There are various Nigerian Authorities that followed this decision. The case of Onwuka vs. Omogin (1992) 3 NWLR (Part 230) 392 at 401 per Babalakin JSC (as he then was):
“In Law, a Plaintiff is under an obligation to minimize damages. See:- cases of British Westinghouse Electric and Manufacturing Company Ltd. vs. Underground Electric Railways Company of London Ltd. (1912) Ac. 673 and Owners of Dredger Hesboseh vs. Owners of Steamship Edison (1933) A.C 449. The evidence is that, the Plaintiff/Respondent was the vehicle for conveyance of kerosene daily. It is therefore unreasonable for him to leave this vehicle idle in the Defendant/Appellants yard from 6/08/1981 till 6th September, 1983”.
There are more recent Nigerian decision which followed the British Westinghouse Case (Supra) See:- Obasuyi vs. Business Ventures Ltd. (2000) 5 NWLR (Part 658) 668, at 683; Okangwu vs. N.N.P.C (1989) 4 NWLR (Part 115) 296, 319 – 320.
Let me point out here that, the trial Court failed to appreciate the issue of mitigation of losses canvassed before it. The Court only paid attention to the case of the 1st Respondent without looking also at that of that Appellant. I cannot see the basis for the award of damages for detinue and loss of earnings the Court made to the 1st Respondent when he had all the opportunity to mitigate those losses. Those awards made, have no leg and this Court has resolved Issue Two (2) in favour of the Appellant.
On Issue 3 in which the trial Court not only refused to grant the Appellant his Counter-claim, but proceeded to non-suit the claim. Let me say here and now that the Appellant has not appealed to this Court on the trial Court’s refusal to grant his Counter-Claim. The only ground canvassed by the Appellant is whether the trial Court was right to have non-suitted his Counter-claim.
On non-suit, the view has always been that a Court of trial should refrain from making an order of non-suit without hearing from the parties or their Counsel as to the desirability or otherwise of such an order is enshrined in several decided authorities. See:- Craig vs. Craig 1966 1 ANLR 173; Osayi vs. Izozo (1969) 1 ANLR 15; Gorge vs. United Bank for Africa Ltd. (1972) 1 ANLR (Part 2) 347 and Aseimo & Ors. vs. Amos & Ors. (1975) 2 SC 57.
It is only to add as in the instant case, the need to record an order for non-suit arose in the course of writing a judgment the Court should suspend such judgment, invite the parties or other Counsel to address it further before proceeding with the judgment. To hold otherwise would be tantamount to investing the trial Judge with power to make an order which neither of the parties desired or asked for. Such a procedure would be clearly undesirable in a civil matter, where the Judge’s role is that of an impartial umpire. Supreme Court in Elemenya Ikoro vs. Safrap (Nigeria) Ltd. (1977) 2 SC.
The above authority of the Apex Court is on all fours with the instant appeal. There is no evidence on record that the trial Judge followed any of the condition laid down by the Apex Court. The order of non-suit made against the Appellant was therefore wrong; and this Issue also resolved in favour of the Appellant.
In conclusion, having resolved all the issues in this appeal against the 1st Respondent, this appeal is hereby allowed. The judgment of Justice A. A. Sijuwade in Suit No. HIF/28/91 delivered on Monday the 20th day of March, 1995, is hereby set aside by this Court, including all the orders made in respect thereof. I make no order as to cost.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother, SIDI DAUDA BAGE, JCA just delivered. I agree with his reasoning and conclusion.
The law is settled that any adjudication without jurisdiction, no matter how well conducted is a nullity. See: MADUKOLU VS. NKEMDILIM (1962) 2 SC NLR 341. The competence of an action is a threshold issue, which once raised must be considered and resolved before considering any other issue in the proceedings. See: SALAMI VS. OSENI (2202) 14 NWLR (788) 623; ONYENUSHEYA VS. MILITARY ADMINISTRATOR OF IMO STATE (1997) 1 NWLR (482) 429; BALOGUN VS. PANALPINA WORLD TRANSPORT (NIG) LTD. (1999) 1 NWLR(585) 66.

Where a statute provides a period within which an action must be commenced, legal proceedings cannot be commenced after the expiration of the prescribed period. An action instituted after the period stipulated in the statute is not maintainable. The consequence is that where a statute of limitation applies, a claimant who might have had a cause of action loses the right to enforce it by judicial process. See: EBOIGBE VS. N. N. P. C. (1994) 5 NWLR (347) 649 at 658 F-A and 659 D-E; ODUBEKO VS. FOWLER (1993) 7 NWLR (308) 637; OKE VS. OKE 2006 4 NWLR (1008) 224 at 242 C-D.
In the instant case the 3rd & 4th Respondents (2nd & 3rd Defendants) and the 1st Defendant at the court below whose name was struck off the suit suo motu by the learned trial judge are all police Officers. Pursuant to Section 318(h) of the 1999 Constitution they are public officers to whom the Public Officers protection Act Cap 379 Laws of the Federation of Nigeria 1990 applies.
The 1st Respondent (as Plaintiff in the lower court) having failed to institute his action against the 1st, 2nd & 3rd Defendants within the time stipulated in Section 2(a) of the Act, lost the right to enforce his claim against them. I therefore allow the cross-appeal in this regard.
From the facts before the trial court, the 1st Respondent’s vehicle was seized and impounded by the 3rd & 4th Respondents. The claim against the 2nd – 4th Respondents being statute-barred, the claim for damages for detinue died with the claim against those Respondents.
I also agree with my learned brother in the lead judgment that the 1st Respondent had a duty to mitigate his damages by repaying the N32,000.00 which was the balance of the loan obtained from the Appellant and thereby securing the release of his vehicle or by finding other means of conducting his business.
For these and the fuller reasons contained in the lead judgment, I also find merit in the appeal. I also allow it. I abide by the consequential order made. I make no order for costs.

MODUPE FASANMI, J.C.A: I had the privilege of reading in draft the judgment of my learned brother S. D. Bage J.C.A.
I agree with the reasoning contained therein and the conclusion arrived thereat. The appeal is meritorious. I abide with the consequential orders made. I also abide by the no costs order contained therein.

Appearances

Akeem Agbaje, Esquire
Bola AkinbobolaFor Appellant

AND

A. O. Adeniji, DCL, Ministry of Justice, Osun StateFor Respondent