MOHAMMED v. FCDA & ORS (2022)

MOHAMMED v. FCDA & ORS

(2022)LCN/17122(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, May 24, 2022

CA/ABJ/CV/608/2021

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

MALLAM RABIU MOHAMMED APPELANT(S)

And

1. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 2. ABUJA METROPOLITAN MANAGEMENT AGENCY 3. HENRY ONORIODE EJENAKE RESPONDENT(S)

RATIO

WHETHER OR NOT A NOTICE OF APPEAL IS AN ORIGINATING PROCESS

My Lords, in appellate litigation, the Notice of Appeal is indisputably the originating process. Its service personally on all the parties directly affected by the appeal is sine qua non unless there is an Order of Court for substituted service of the Notice of Appeal. It follows therefore, failure to serve a Notice of Appeal on a party directly affected by the appeal is fatal and would render any proceedings founded thereon a nullity. See Order 2 Rule 2 of the Court of Appeal Rules 2021. See also NUT Taraba State V. Habu (2018) 15 NWLR (Pt. 1642) 381 AT Pp. 393 – 394; Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 AT pp. 176 – 177. PER GEORGEWILL, J.C.A.

WHETHER OR NOT A NOTICE OF APPEAL MUST BE SERVED PERSONALLY ON THE RESPONDENTS

This failure therefore, to serve the Notice of Appeal on the 3rd Respondents was fatal to the competence of this Appeal in so far as it relates to the 3rd Respondent only. See Ihedioha & Ors V. Okorocha & Anor (2016) 1 NWLR (Pt. 1492) 147, where the Supreme Court had pronounced inter alia thus:
“A Notice of Appeal being an originating process, is fundamental to jurisdiction and must be served personally on the respondents unless otherwise directed or ordered by the Court or exempted by the provisions of the law. If a Notice of Appeal is not served on the parties affected as respondents to the appeal, the appellate Court cannot assume jurisdiction over the appeal.”
See also Adegbola V. Osiyi & Ors (2017) LPELR – 42471 (SC), where the Supreme Court had opined inter alia thus:
“The Notice of Appeal is the foundation of the appeal, non – service of the notice if established, goes to the root of the appeal. The defect is not a mere irregularity as being fundamental, it robs the appellate Court the jurisdiction to hear and determine the appeal…service of an originating process, which is the Notice of Appeal, is a sine qua non for a Court to assume jurisdiction over a case.”
It is the law that where a Notice of Appeal does not have endorsed on it the address where a Respondent could be served personally, and in the result the Respondent is not personally served with the Notice of Appeal as required by law, it is fundamentally and incurably defective and renders such a Notice of Appeal grossly incompetent. See Ihedioha & Ors V. Okorocha & Anor (2016) 1 NWLR (Pt. 1492) 147. See also Adegbola V. Osiyi & Ors (2017) LPELR – 42471 (SC); Rossek V. ACB Ltd (1993) 8 NWLR (Pt. 312) 382 AT p. 437; Dr. Stephen Adi Odey V. Chief John Alaga & 3 Ors (2021) LCN/4974 (SC), Akinloye V. Adelakun (2000) 5 NWLR (Pt.657) 530, Popoola V. Babatunde (2012) 7 NWLR (Pt. 1299) 302 AT p. 331.
Now, by Order 2 Rule 1 of the Court of Appeal Rules 2021, it is provided thus:
“Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; Provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.” PER GEORGEWILL, J.C.A.

WHETHER OR NOT THE ISSUE OF LIMITATION OF ACTOON IS A QUESTION OF JURISDICTION

My Lords, the sole issue for determination in this appeal raises the vexed issue of when in law can an action be said to be statute barred? The issue of limitation of action is now regarded as a threshold question of jurisdiction and jurisdiction is fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. It is thus, the law that once an issue of jurisdiction is raised it must be determined first one way or the other by the Court before proceeding if need be to determining the substantive claim. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284; Adeyemi V. Opeyori (1976) 9 – 10 SC 31. PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of the Federal Capital Territory Abuja, Coram: S. U. Bature J, in Suit No. CV/247/2019 Mallam Rabiu Mohammed V. Federal Capital Development Authority & Ors delivered on 25/3/2021. The preliminary objection of the 3rd Respondent challenging the competence of the Appellant’s Suit was upheld and consequently, the Appellant’s Suit was struck out for being statute barred.

The Notice of Appeal was filed on 21/6/2021 on five grounds of appeal. See pages 154 – 161 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 3/9/2021. The Parties filed and exchange their briefs, which were adopted as their arguments at the hearing of this appeal on 21/3/2022. The Appellant was represented by Ayodeji Ademola Esq., appearing with Igwe Ugochukwu Esq. The 1st – 2nd Respondents were represented by Zaidu Abdullahi Esq. The 3rd Respondent was represented by Efa O. Oka Esq. appearing with Winifred Okpara Esq.

By a Writ of Summons filed on 6/11/2019, and an Amended Writ of Summons and Amended Statement of Claim filed on 7/10/2021, the Appellant as the Claimant before the lower Court claims against the Respondents as Defendants the following reliefs, to wit:
1. An order of Court setting aside the withdrawal of Building Plan Approval dated the 9/7/2018 by the Respondents and restoring the conveyance of Building Plan Approval dated 9/1/2017.
2. An order of perpetual injunction restraining all the Respondents, their agents and any other person claiming through them from further trespassing, disrupting the Appellant’s ongoing building construction or in any manner meddle with the peaceful possession of the Appellant over his FHA Plot CS21
3. General damages in the sum of N5,000,000.00 against the Respondents jointly and severally
4. Cost of action valued at N2, 000, 000. 00. See 75 – 80 pages of the Record of Appeal.

BRIEF STATEMENT OF FACTS
Before the lower Court the Appellant had commenced an action against the 1st and 2nd Respondents as the 1st and 2nd Defendants and Unknown person as the 3rd Defendant claiming amongst other reliefs an Order of the lower Court setting aside the withdrawal of Building Plan Approval dated the 9/7/2018 by the Respondents and restoring the conveyance of Building Plan Approval dated 9/1/2017. The parties filed and exchanged pleadings and the matter went to trial. The Appellant in proof of his claim called two witnesses, who testified as PW1 and PW2 and tendered several documents which were admitted in evidence as Exhibits and closed his case. His case inter alia was that he acquired ownership of his plot from Federal Housing Authority and obtained Building Approval, which building approval was later withdrawn by the 2nd Respondent on the ground that there was an investigation into his title to the plot. At the close of the case of the Appellant, the matter was then adjourned for defense by the 1st and 2nd Respondents.

However, before the defense could be opened, the 3rd Respondent applied and was subsequently joined to the suit as the 3rd Defendant by the lower Court. Consequently, the Appellant amended his processes to reflect the joinder of the 3rd Respondent. Thereafter, the 3rd Respondent filed his pleadings and counter – claim and on 8/10/2020 he filed a Notice of Preliminary Objection challenging the competence of Appellant’s suit on the ground that it was statute barred by virtue of the provisions of Section 2 of the Public Officers’ Protection Act in that it was commenced outside the three months as prescribed by law for an action against the 1st and 2nd Respondents, who undoubtedly are within the meaning of the term ‘Public Officers, from July 2018 when the cause of action arose until November 2019 when the suit was filed. The parties filed and exchanged written addresses on the preliminary objection of the 3rd Respondent and on 1/12/2020, the lower Court heard the preliminary objection of the 3rd Respondent. On 25/3/2021, it delivered its ruling upholding the preliminary objection of the 3rd Respondent and striking out the claims of the Appellant, leaving the counter-claim of the 3rd Respondent for trial, hence the appeal. See pages 1 – 7, 22 – 25, 75 – 80, 81 – 100, 101 – 103, 109 – 116, 117 – 120, 136 – 137, 144 – 153 and 154 – 161 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, a sole issue was distilled as arising for determination from the five grounds of appeal, namely: “Whether having regard to the case of the Appellant and the facts of this case, the lower Court was right to have held that Public Officers’ Protection Act is applicable to the case of the Appellant before it?” (Distilled from Grounds 1 – 5)

In the 1st and 2nd Respondents’ brief, a sole issue was distilled as arising for determination in this appeal, namely:
“Whether having regard to the facts of the case, the lower Court was right to have held that Public Officers’ Protection Act is applicable to this case?” (Distilled from Grounds 1 – 5)

In the 3rd Respondent’s brief, a sole issue was distilled as arising for determination in this appeal, namely:
“Whether the lower Court below was right in holding that the action of the Appellant was statute barred by virtue of the provisions of the Public Officers’ Protection Act?” (Grounds 1 – 5)

I have taken time to consider the averments in the pleadings of the parties together with the evidence led so far by the Appellant as the Claimant. I have looked at the Notice of Preliminary Objection filed by the 3rd Respondent challenging the competence of the Appellant’s Suit on the ground that it was statute barred. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the ruling of the lower Court. Happily, the parties, to a very large extent, are ad idem on the only issue properly arising for determination in this appeal. I shall therefore, and do hereby adopt the sole issue for determination as distilled in the Appellant’s brief as the sole issue for determination in this appeal, a consideration of which, in my view, would involve a consideration of the sole issue as distilled in the 1st and 2nd Respondents’ brief as well as the 3rd Respondent’s brief. But then there is the 3rd Respondent’s Notice of Preliminary Objection challenging the competence of the appeal, which I shall proceed to consider first.

NOTICE OF PRELIMINARY OBJECTION
By a Notice of Preliminary Objection filed on 24/11/2021, the 3rd Respondent is challenging the competence of this appeal and praying the Court to strike out the appeal on the ground that the Notice of Appeal, being an originating process required to be personally served, was not personally served on the 3rd Respondent as required by law.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions in support of the preliminary objection, which I have taken time to review, learned counsel for the 3rd Respondent had submitted inter alia that in law a Notice of Appeal is an originating process and must be personally served on the Respondent in order to activate the jurisdiction of the Court and contended that the non – service of the Notice of Appeal personally on the 3rd Respondent is a fundamental defect that goes to the root of the appeal and urged the Court to hold that the Notice of Appeal filed on 21/6/2021 but not personally served on the 3rd Respondent was incompetent and liable to be struck out and to strike out the same as well as the appeal for being incompetent. Counsel referred to Order 2 Rule 1 of the Court of Appeal Rules 2021, and relied on Rossek V. ACB Ltd (1993) 8 NWLR (Pt. 312) 382 at 437, Dr. Stephen Adi Odey V. Chief John Alaga & 3 Ors (2021) LCN/4974 (SC), Akinloye V. Adelakun (2000) 5 NWLR (Pt.657) 530, Popoola V. Babatunde (2012) 7 NWLR (Pt. 1299) 302 AT p. 331.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions on the 3rd Respondent’s preliminary objection, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that in law by virtue of Order 2 Rule 3 of the Court of Appeal Rules, which is different from the provisions of Order 3 Rule 2 of the Supreme Court (Amendment) Rules 2014, the service of a Notice of Appeal on a Respondent through the last known address of his counsel before the lower Court is valid and contended that this provision was made to circumvent undue reliance on technicality and urged the Court to hold that the service of the Notice of Appeal on the 3rd Respondent through his counsel was proper and valid as required by the Rules of this Court and to dismiss the 3rd Respondent’s Notice of Preliminary Objection and proceed to determine the appeal on the merit. Counsel relied on Emerald Energy Resources Ltd. V. Signet Advisors Ltd (2021) 8 NWLR (Pt. 1779) 579 AT Pp. 615 – 616.

It was also submitted that by a community reading of Order 2 (1)(a) & 3 of the Court of Appeal Rules, it is clear that the general rule of personal service has exceptions in that even if a Respondent was not personally served, the service will be acceptable by the Court as proper if the notice of appeal has been communicated to him with which the Court is satisfied and contended that by the provision of Sub-rule 3 service of a Notice of Appeal on the address of counsel for the Respondent is good service and urged the Court to hold that the service of the Notice of Appeal on the 3rd Respondent through the address of his counsel was good service when these provisions of the Rules of this Court are given a construction in accord with their ordinary grammatical meaning and to dismiss the 3rd Respondent’s Notice of Preliminary Objection. Counsel referred to Order 2 Rule 1 and 3 of the Court of Appeal Rules 2016, and relied on Abubakar V. Nasamu (2012) 17 NWLR (Pt. 1330) 523 SC 1, Savannah Bank (Nig.) Ltd. V. Ajilo (1989) 1 NWLR (Pt. 97) 305 SC.

RESOLUTION OF THE PRELIMINARY OBJECTION
My Lords, in appellate litigation, the Notice of Appeal is indisputably the originating process. Its service personally on all the parties directly affected by the appeal is sine qua non unless there is an Order of Court for substituted service of the Notice of Appeal. It follows therefore, failure to serve a Notice of Appeal on a party directly affected by the appeal is fatal and would render any proceedings founded thereon a nullity. See Order 2 Rule 2 of the Court of Appeal Rules 2021. See also NUT Taraba State V. Habu (2018) 15 NWLR (Pt. 1642) 381 AT Pp. 393 – 394; Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 AT pp. 176 – 177.
I have taken time to go through the entire Record of Appeal to see if there is any proof of any ‘personal’ service of the Notice of Appeal on the 3rd Respondents, undoubtedly one of the parties directly affected by the appeal. I can see no proof of any ‘personal’ service of the Notice of Appeal on the 3rd Respondents. This is understandably and undoubtedly so because even on the face of the Notice of Appeal, the address for service as endorsed therein was that of the Solicitor to the 3rd Respondent before the lower Court, as if there was any legal obligation on the 3rd Respondent to retain the Solicitor who represented him before the lower Court to also represent him in this appeal. Ordinarily, in law, the authority of the Solicitor to represent the 3rd Respondents, unless renewed by him, terminates at the conclusion of the matter before the lower Court. See Order 2 Rule 2 of the Court of Appeal Rules 2021. See also Ihedioha & Ors V. Okorocha & Anor (2016) 1 NWLR (Pt. 1492) 147, Adegbola V. Osiyi & Ors (2017) LPELR – 42471 (SC), Odua Investment Co. Ltd V J.T Talabi (1991) 1 NWLR (PT 170) 761.
In other words, an Appellant cannot by a mere ‘Notice of Appeal’ impose on a Respondent the counsel who represented him at the lower Court as his counsel for the Appeal, that choice belongs entirely to the Respondent and cannot be curtailed under the guise of any subterfuge by an Appellant seeking solace under the proviso to Order 2 Rule 1 of the Court of Appeal Rules 2021. It is clear and I so hold that the Notice of Appeal was not personally served on the 3rd Respondents as required by law vide Order 2 Rules 1 and 2 of the Court of Appeal Rules 2021.
My Lords, it has been argued, and very forcefully too, that the service of the Notice of Appeal on the last known address for service of the 3rd Respondent, namely the address of his counsel at the trial before the lower Court was good service in view of the provisions of Order 2 (3) of the Rules of this Court in that that was the address for service place before the Court by the 3rd Respondent. Pray, how does a Respondent who was yet to be served with a Notice of Appeal, indisputably an originating process in appellate litigation, provide or place an address for service of his counsel for the purposes of the service of the Notice of Appeal on his counsel? An address of counsel for the Respondent used for the purposes of service before the trial Court is not and cannot by any stretch of the provision of Order 2 (3) of the Court of Appeal Rules 2021 be regarded as address of service placed by a Respondent for the purposes of service of a Notice of Appeal on the Respondent. indeed, there is neither anything in the Rules of this Court nor any is there any known principle of law that obligates a Respondent to use the same counsel that conducted his case before the trial Court as his counsel on appeal. Thus, the address of counsel for service used before the trial Court by the 3rd Respondent, is not and cannot be an address of counsel for service placed by the 3rd Respondent before this Court for the purposes of service of a Notice of Appeal on the 3rd Respondent, and I so firmly hold.
It follows therefore, that in law the admitted but purported service of the Notice of Appeal filed on 21/6/2021, being an originating process, on one Efa Out Oka of Habibat Lex Justitia, House 96, First Crescent, NMA Housing Estate, Apo, Abuja, who was the 3rd Respondent’s Solicitor before the lower Court rather than on the 3rd Respondent at Plot 1022, Garbaja Abdulkadir Crescent, Guzape, Asokoro, Abuja, as can be seen at page 51 of the Record of Appeal, neither amounted to nor constituted proper and valid service of the Notice of Appeal on the 3rd Respondent. In law, service of originating process, such as a Notice of Appeal, on parties affected by it is fundamental and mandatory. This failure therefore, to serve the Notice of Appeal on the 3rd Respondents was fatal to the competence of this Appeal in so far as it relates to the 3rd Respondent only. See Ihedioha & Ors V. Okorocha & Anor (2016) 1 NWLR (Pt. 1492) 147, where the Supreme Court had pronounced inter alia thus:
“A Notice of Appeal being an originating process, is fundamental to jurisdiction and must be served personally on the respondents unless otherwise directed or ordered by the Court or exempted by the provisions of the law. If a Notice of Appeal is not served on the parties affected as respondents to the appeal, the appellate Court cannot assume jurisdiction over the appeal.”
See also Adegbola V. Osiyi & Ors (2017) LPELR – 42471 (SC), where the Supreme Court had opined inter alia thus:
“The Notice of Appeal is the foundation of the appeal, non – service of the notice if established, goes to the root of the appeal. The defect is not a mere irregularity as being fundamental, it robs the appellate Court the jurisdiction to hear and determine the appeal…service of an originating process, which is the Notice of Appeal, is a sine qua non for a Court to assume jurisdiction over a case.”
It is the law that where a Notice of Appeal does not have endorsed on it the address where a Respondent could be served personally, and in the result the Respondent is not personally served with the Notice of Appeal as required by law, it is fundamentally and incurably defective and renders such a Notice of Appeal grossly incompetent. See Ihedioha & Ors V. Okorocha & Anor (2016) 1 NWLR (Pt. 1492) 147. See also Adegbola V. Osiyi & Ors (2017) LPELR – 42471 (SC); Rossek V. ACB Ltd (1993) 8 NWLR (Pt. 312) 382 AT p. 437; Dr. Stephen Adi Odey V. Chief John Alaga & 3 Ors (2021) LCN/4974 (SC), Akinloye V. Adelakun (2000) 5 NWLR (Pt.657) 530, Popoola V. Babatunde (2012) 7 NWLR (Pt. 1299) 302 AT p. 331.
Now, by Order 2 Rule 1 of the Court of Appeal Rules 2021, it is provided thus:
“Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; Provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.”
My Lords, by the use of the word ‘shall’ in the above provision, it connotes and requires mandatory compliance since in law the word ‘shall’ is usually used to express a command or what is legally mandatory and must therefore, be strictly obeyed to the letters. Order 2 Rules 1 of the Court of Appeal Rules 2021 unequivocally and expressly provides that the primary mode of service of the Notice of Appeal on a Respondent shall be ‘personal’. It follows therefore, that failure to do so, except where leave is granted to the contrary or this Court is satisfied, of which I am not in any way satisfied in this appeal, that service had been properly effected on the 3rd Respondent, would rob, and did rob, this Court of the requisite competence to determine this appeal against the 3rd Respondent on the merit, since the conditions precedent to the exercise of the jurisdiction of this Court in this Appeal as it affects the 3rd Respondent has not fulfilled as required by law. See Nwankwo V. Yar’adua (2011) 13 NWLR (Pt. 1263)125, Onochie V. Odogwu (2006) 6 NWLR (Pt. 975) 65, Odua Investment Co. Ltd V J.T Talabi (1991) I NWLR (PT 170) 761, Kida V. Ogunmola (2006) 6 SCNJ 165 AT p. 174, Auto Import Export V. Adebayo (2002) 18 NWLR (Pt. 799) 554, Madukolu & Ors V. Nkemdilim (1962) LPELR – 24023 (SC).

It is no longer in any doubt that in law ‘Rules of Court’ are meant to be obeyed. They are not made to be toyed with or just for the mere fun of it. Thus, each level of Courts has its own set of given ‘Rules’ to regulate its proceedings and therefore, both the parties, who appear before it, as well as the Court are bound by the Rules of the Courts. The parties either by themselves or through their counsel must therefore, take time to carefully study the ‘Rules of the Courts and approach the Courts in line with the laid down rules in order to avoid chaos in the judicial process. Therefore, where a Court insist, as in the instant appeal, that its relevant and applicable ‘Rules’ must be obeyed by the parties that should not be equated with leaning unduly on mere technicality over and above substantial justice. See Popoola V Babatunde (2012) 7 NWLR (Pt. 1299) 302.

In law, the breach of the Rules of Court as to service of the originating process such as a Notice of Appeal is not a mere irregularity that can be waived even by the party entitled to be served but a fundamental breach which goes to the foundation of the appeal. This Court lacks the jurisdiction to entertain an appeal commenced by means of an incurably defective Notice of Appeal, and is, without much ado, under a duty to strike out such an incompetent Notice of Appeal. See Akinloye V. Adelakun (2000) 5 NWLR (Pt.657) 530. See also Popoola V. Babatunde (2012) 7 NWLR (Pt. 1299) 302 AT p. 331.

In the light of all I have stated and found above, I hold that the preliminary objection of the 3rd Respondent against the purported service of the Notice of Appeal on him succeeds and it is hereby upheld. However, since the service of the Notice of Appeal on the 1st and 2nd Respondents was not in issue, I think the proper order to be made is not one of striking out the Notice of Appeal as well as the Appeal in its entirety as urged upon us by learned counsel for the 3rd Respondent, but rather an order striking out the name of the 3rd Respondent from the record of this appeal. Consequently, the name of the 3rd Respondent is hereby struck out from this appeal.

Be the above as it may, this Court is only but the penultimate Court in the hierarchy of Courts in the land, and we have been enjoined, or rather admonished by the Apex Court to ensure that we consider all issues presented before us by the parties. I shall therefore, in deference to the admonition of the Apex Court proceed to consider the merit of this appeal.

SOLE ISSUE
Whether having regard to the case of the Appellant and the facts of this case, the lower Court was right to have held that Public Officers’ Protection Act is applicable to the case of the Appellant before it?

APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on the sole issue, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that the Public Officers Protection Act does not apply where the act of the Public Officer was not 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 or where the damage or injury is continuing or where the subject matter is in respect for land dispute or contract and contended that the acts of the 1st and 2nd Respondents in withdrawing the Building Approval because of a subsequent allocation was not done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority as would avail them the protection afforded by the Public Officers Protection Act and urged the Court to hold that the lower Court was wrong and erred gravely when it held that the Appellant’s suit was statute barred by reason of the operation of the Public Officers Protection Act since the subject matter of the Appellant’s suit was one founded on the ultra vires acts of the 1st and 2nd Respondents in withdrawing the approval earlier granted to the Appellant by the Federal Housing Authority, and or land dispute as well as continuing injury and simple contract and to allow the appeal, set aside the ruling of the Court below and remit the case for accelerated hearing before the lower Court. Counsel referred to Section 2 (a) of the Public Officers’ Protection Act, and relied on The Administrators/Executors of The Estate of Gen. Sani Abacha (Deceased) V. Samuel David Eke-Spiff & Ors (2009) LPELR-3152(SC), Giwa V. Anzaku (2019) LPELR-46880(CA).

It was also submitted that the lower Court was wrong when it held that the Appellant did not place anything before it to prove that 1st and 2nd Respondents acted ultra vires their powers at the stage of considering the preliminary objection of the 3rd Respondent and contended that there was no way the Appellant would have been able to prove that 1st and 2nd Respondents acted ultra vires their powers except upon hearing and considering of evidence before the lower Court since the issue of the 1st and 2nd Respondents acting ultra vires their powers in withdrawing the building Plan Approval because of a subsequent grant of same land to 3rd Respondent is a substantive issue before the lower Court, which ought not to be decided at the interlocutory stage of the proceedings and urged the Court that the decision at such an interlocutory stage of an issue in the substantive suit was premature and had occasioned a miscarriage of justice to the Appellant, allow the appeal, set aside the judgment and remit the case to the lower Court for accelerated hearing. Counsel relied on CIL Risk & Asset Management Limited V. Ekiti State (2020) 12 NWLR (Pt. 1738) 203 AT p. 233, Dantsoho V. Mohammed (2003) 6 NWLR (Pt. 817), Ma’azu V. Unity Bank Plc (2014) 3 NWLR (Pt. 1395) 512 AT p. 545; University of Ilorin V. Govt of Kwara State & Ors (2012) LPELR – 14326(CA); Pali V. Abdu (2019) 5 NWLR (Pt. 1665) 320 AT p. 324; Adebo V. Omisola (2005) 2 NWLR (Pt. 909) 149, AIC Ltd V. NNPC (2005) 11 NWLR (Pt. 937) 563; Aghedo V. Adenomo (2018) 13 NWLR (Pt. 1636) 264.

It was further submitted that the conducts of the 1st and 2nd Respondents in withdrawing the Building Plan Approval that was properly and legally granted to the Appellant because of a subsequent grant on same land was ultra vires the 1st and 2nd Respondent and therefore not in pursuance of execution of any law or legal duty which disentitled them from the protection of POPA and contended that their acts also constituted a continuing damage in that the Appellant’s complaint was not only about the withdrawal of the Building Plan Approval but also the stoppage of construction work at his site which is a continuous act as well as raising the issue of title to the Appellant’s land by virtue of the claim for trespass and perpetual injunction and urged the Court to hold that in the circumstances the Public Officers’ Protection Act does not apply contrary to the perverse finding of the lower Court and to allow the appeal, set aside the perverse ruling of the lower Court and remit the Appellant’s suit for continuation of trial. Counsel referred Section 2(a) of the Public Officers’ Protection Act and relied on GCM Ltd V. Travellers Palace Hotel (2019) 6 NWLR (Pt. 1669) 507, Dasuki V. F.R.N. (2018) 10 NWLR (Pt. 1627) 320, Attorney – General of Rivers State V. Attorney – General of Bayelsa State & Anor (2013) 3 NWLR (Pt. 1340) 123 AT pp. 148 – 149; Akwa Ibom State Civil Service Commission & Ors V. Akpan (2013) LPELR – 22105(CA); Adeyefa V. Bamgboye (2014) 11 NWLR (Pt. 1419) 520 AT p. 524; Ifeacho V. Inland Med. Co. (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) 105; Olohunde V. Adeyoju (2000) 10 NWLR (Pt. 676) 562; Nwadiogbu V. Nnadozie (2001) 12 NWLR (Pt. 727) 315; Opuzibau V. Kwokwo (2002) 1 NWLR (Pt. 747) 116; CIL Risk & Asset Management Limited V. Ekiti State (2020) 12 NWLR (Pt. 1738) 203 AT p. 233.

It was also further submitted the lower Court was in grave error when it held that the claim of the Appellant is not one founded on contract on the face of the averments in the Amended Statement of Claim showing that there was a contract between the FCT Minister and Federal Housing Authority, which was inherited by Appellant over the land in dispute on one hand and contract between the Appellant and the 2nd Respondent on another hand over the grant of Building Plan Approval and contended that the FCT Minister, the Principal of both 1st and 2nd Respondents had granted a right of occupancy over the land in dispute to Federal Housing Authority, which accepted same and in turn allocated same to Appellant and urged the Court to hold that in law the Conveyance of Right of Occupancy contains terms and conditions which are binding on the parties as the terms of the contract between them and to allow the appeal, set aside the perverse ruling of the lower Court and remit the case to the lower Court for continuation of trial. Counsel relied on Governor of Imo State & Ors V. Monier Construction Co. (Nig) Ltd (2018) LPELR – 45078(CA); Wema Securities and Finance Plc V. Nigeria Agricultural Insurance Corporation (2015) 16 NWLR (Pt. 1484) 93 AT p. 138.

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
In his submissions on his sole issue, which I have taken time to review, learned counsel for the 1st and 2nd Respondents had submitted inter alia that the 1st and 2nd Respondents are Public Officers and having in the due execution of their duties are in law protected by the Public Officers Protection Act and contended that the issue of the applicability of the Public Officers Protection Act borders on jurisdiction and therefore, can be raised at any stage of the proceedings and urged the Court to hold that the lower Court was right when it held that the claims of the Appellant were caught up by the three months limitation period prescribed by the Public Officers Protection Act and therefore, statute barred and to dismiss the appeal for lacking in merit and to affirm the ruling of the lower Court. Counsel referred to Section 2 (a) of the Public Officers’ Protection Act and relied on Rahammaniya United (Nig) Ltd V. Min FCT (2021) 17 NWLR (Pt. 1806)1; AG Rivers State V. AG. Bayelsa State (2013) 3 NWLR (Pt. 1340) 123 AT p. 148; AG. Adamawa State & Ors V AG. Federation (2014) LPELR – 2322 (SC); Salisu V Mobolaji (2014)4 NWLR (Pt. 1396)1.

It was also submitted that from the averments in the Amended Statement of Claim, which in law should determine the subject matter of the Appellant’s claim and not his counsel submissions, the claim of the Appellant is one founded strictly on the withdrawal of the building plan approval by the 1st and 2nd Respondents as was rightly found by the lower Court and not one founded neither on title to land not on breach of contract as erroneously contended by the learned counsel for the Appellant and contended that the lower Court was therefore, right to have upheld the preliminary objection challenging the competence of the Appellant’s Suit filed outside the three months periods prescribed by law for the valid commencement of action against the 1st and 2nd Respondents and urged the Court to so hold and to dismiss the appeal and affirm the ruling of the lower Court. Counsel relied on ACB V. Nwadiogbe (1997) 10 NWLR (Pt. 356) 330 AT p. 337.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on his sole issue, which I have taken time to review, learned counsel for the 3rd Respondent had submitted inter alia that by the provisions of Section 2(a) of the Public Officers Protection Act 2004, an action against a Public Officer cannot lie except it is commenced within three months after the act giving rise to the action complained of must have taken place and contended that from the averments of the Appellant in his Amended Statement of Claim it is clear, and not in any doubt, that the 1st and 2nd Respondents are Public Officers and that the Appellant’s claim was commenced well over three months after the cause of action arose and urged the Court to hold in the circumstances the lower Court was right when it held firmly, upon verifying these facts on the face of the Writ of Summons and comparing same with the date the Appellant’s suit, that the Appellant’s suit was statute barred and struck out the same for being incompetent and to dismiss the appeal and affirm the sound ruling of the lower Court. Counsel relied on Ezeani V. Nigerian Railway Corporation (2015) 3 NWLR (Pt. 1445) 139 AT P. 167, Egbe V. Alhaji (1990) 21 NSCC (Pt. 1) 306, INEC V. Ogbadibo Local Government (2016) 3 NWLR (Pt. 1498) 167, INEC V. Ogbadibo Local Government (2016) 3 NWLR (Pt. 1498) 167.

It was also submitted that all the avalanche of submissions by the learned counsel for the Appellant on the issues of the 1st and 2nd Respondents had acted ultra vires their powers by withdrawing the building plan approval were not, in the least, related to neither the pleadings nor evidence of the Appellant and his witnesses but solely emanated from merely the submissions of learned counsel for the Appellant before the lower Court, which ordinarily should go to no issue, but nevertheless was considered and discountenanced by the lower Court without delving into any evaluation of the evidence led so far by the Appellant and contended that the lower Court stayed within the confines of the narrow issue raised by the 3rd Respondent’s preliminary objection and refrained from and did not decide any of the substantive issues in the Appellant’s suit in the ruling appealed against and urged the Court to so hold and to dismiss the appeal for lacking in merit and affirm the ruling of the lower Court.

APPELLANT’S COUNSEL REPLY TO 1ST AND 2ND RESPONDENTS
In his reply submissions, which I have taken time to review, learned counsel for the Appellant had virtually rehashed and reiterated his earlier submissions and basically re-argued his appeal under the guise of a reply brief. The reply brief, it must be reiterated is not and cannot be an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry. The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. The Appellant’s reply brief is clearly not in consonance with the clear provisions and the intendment of Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See Edo State House of Assembly & Ors V. Igbinedion & Ors (2021) LPELR – 55990 (CA) AT pp. 55 – 57, per Sir Biobele Abraham Geoergewill JCA. See also Olafisoye V. FRN 2004 1SC Pt. 11 27, Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN (2010) 2 – 3 SC 61, Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).

Be that as it may, it was submitted inter alia that the 1st and 2nd Respondents conceded that their conduct complained of is continuing having not canvassed any counter submissions on same and contended that the acts of the 1st and 2nd Respondents complained of by the Appellant was a continuous one and which effectively excluded the application of the Public Officers Protection Act and urged the Court to so hold and to allow the appeal, set aside the perverse ruling of the lower Court and to remit the Appellant’s Suit for continuation of trial before the lower Court. Counsel relied on Shona – Jason Ltd V. Omega Air Ltd (2006) 1 NWLR (Pt. 960) 1 AT P. 17.

APPELLANT’S COUNSEL REPLY TO 3RD RESPONDENT
In his reply submissions, which I have taken time to review, learned counsel for the Appellant, had virtually rehashed and reiterated his earlier submissions and basically re-argued his appeal under the guise of a reply brief. The reply brief, it must be reiterated is not and cannot be an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry. The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2021.

Be that as it may, it was submitted inter alia that the Appellant in his pleadings does not need to state clearly that the withdrawal of the Building Plan Approval granted to him by the 1st and 2nd Respondent was unlawful or ultra vires in that in law all he needs do is to plead facts showing that he is contesting the withdrawal of the building Plan Approval as being unlawful or ultra vires and contended that the Appellant achieved this by virtue of the averments in paragraphs 10, 11, 12, 13, 14, 15, 16 and 17 of his Amended Statement of Claim and urged the Court to hold that in the circumstances the issue of ultra vires acts of the 1st and 2nd Respondents can only be determined after hearing of evidence since it was also a substantive matter and to allow the appeal, set aside the perverse ruling of the lower Court and remit the Appellant’s suit for continuation of trial before the lower Court.

RESOLUTION OF THE SOLE ISSUE
My Lords, the sole issue for determination in this appeal raises the vexed issue of when in law can an action be said to be statute barred? The issue of limitation of action is now regarded as a threshold question of jurisdiction and jurisdiction is fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. It is thus, the law that once an issue of jurisdiction is raised it must be determined first one way or the other by the Court before proceeding if need be to determining the substantive claim. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284; Adeyemi V. Opeyori (1976) 9 – 10 SC 31.

The law on limitation of action is simply a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of stale claims. In its operation, it extinguishes the right to action but not the cause of action itself, which is rendered bare and unenforceable in a Court of law. The rationale for limitation of time for the commencement of action would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost or due to unavailability of materials evidence or death or unavailability of vital key witnesses, due to no fault of his, necessary for his defense which would have otherwise been available if the claims were commenced timely within the period as allowed under the relevant applicable limitation law.

The issue of limitation of action having evolved over the years into a jurisdictional issue can be raised nowadays even where it was not duly pleaded by a party. It can be raised by the party so contending or even suo motu by the Court and interestingly it can be determined even on the face of only the Writ of Summons even before the other party delivers his defense or pleadings. In other words, the issue whether a claim is statute barred or not can be determined on the pleadings of the Claimant even without taking evidence of the parties. See William O. Olagunju & Anor V. NIG Plc (2011) 46 NSCQR 583 AT p. 597. See also Christopher Obueke & 3 Ors V. Nsude Nwankwo Nnamchi & 2 Ors (2006) All FWLR (Pt. 313) 195.
In 1987 in Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1, the Supreme Court had considered and simplified the duty of the Court when faced with the resolution of the issue whether or not a suit is statute barred and had succinctly pronounced with finality inter alia thus:
“How does one determine the period of limitation? The answer is simply by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.”
See also Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 AT P. 416, Ikosi Industries Ltd V. Lagos State Govt. & Ors (2017) LPELR – 41867 (CA) AT Pp. 35 – 40, per Garba JCA, (as he then was but now JSC); P. N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900, Williams V. Williams (2008) All FWLR (Pt. 433) 1245.

My Lords, I am aware and it is true that in law that it is the pleadings of a party that defines both his cause of action and the case he intends to put forward against his adversary before the Court. A party’s case is defined, circumscribed and limited by its pleadings. This is why pleading demands so much care and skill to draft. In law, any evidence on a fact not pleaded goes to no issue and ought to be disregard. See The Registered Trustees of the Apostolic Church V. Mrs. Olowoleni (1990) SCNJ 69.

The case of the Appellant as succinctly put in the averments in the Amended Statement of Claim and the evidence, both oral and documentary, led so far through the PW1 and PW2 inter alia was that on 7/11/1991, the Minister of Federal Capital granted a Right of Occupancy to the Federal Housing Authority over plots 2514 – 2517, 2519, 2520 and 2148 – 2150 within the Maitama District. Based on the Appellant’s application, the FHA initially allocated Utility Plot No. 15 to him but later changed it to Utility Shop 21 out of Plot 2514 allocated to FHA by the Minister of Federal Capital Territory dated 28/9/1993 and 21/8/2014 respectively. The Appellant’s plot was again Housing Unit CS21. Later, he applied for building approval to FHA, which was approved via a letter dated 16/08/2011. Immediately the approval was granted, he commenced building a one Storey office building thereon, which is at the deck level. However, sometime in June, 2018, staff of the 2nd Respondent came to the site and stopped the work because there is another person claiming the same land. By a letter dated 9/7/2018, the 2nd Respondent wrote to the Appellant withdrawing the building plan approval earlier granted to him by the Federal Housing Authority, even when his Right of Occupancy had not been revoked by the Minister of the FCT. The Construction work has since stopped, hence the commencement of the action against the 1st and 2nd Respondents on 6/11/2019. The 1st and 2nd Respondents filed their pleadings. Upon his joinder, the 3rd Respondent also filed his pleadings along with a counter-claim against the Appellant. See pages 1 – 7, 22 – 25, 41 – 50 and 78 – 81 of the Record of the Record of Appeal.

By a Notice of Preliminary Objection filed 8/10/2020, the 3rd Respondent challenged the competence of the Appellant’s Suit for being statute barred. He relied inter alia, on the following grounds, namely: that the Appellant has no cause of action, since the Suit, as it is presently constituted, is statute barred and as such robs the lower Court of its jurisdiction to entertain same in Suit action was commenced about a year after the cause of action arose, more than the three months as allowed by Section 2 (a) of the Public Officers Protection Act, Cap P41, Laws of the Federation of Nigeria 2004; Cap 542, Laws of the Federation of Nigeria (Abuja) 1990. See pages 101 – 103 of the Record of Appeal.

It was on the state of the averments in the pleadings of the Appellant and the oral and documentary evidence of the parties that the lower Court had on 1/12/2020 proceeded to hear the preliminary objection. On 25/3/2021, it delivered its ruling upholding the 3rd Respondent’s preliminary objection that the Appellant’s suit was incompetent, having been statute barred at the time it was commenced against the 1st and 2nd Respondents on 6/11/2019 before the lower Court. See pages 144 – 153 of the Record of Appeal.

My Lords, in ascertaining whether or not a Claimant’s suit is statute barred, the principal document or process to be scrutinized by the Court is the originating process filed by the Claimant, and or the Statement of Claim or Affidavit in Support where it has been filed and this is so because it is in these processes that the date or period of accrual of the cause of action of the Claimant can be found and or ascertained. Thus, the Statement of defense or Counter – Affidavit, as the case may be, even where filed is really of no moment in the determination of the date of accrual of the cause of action of the Claimant. This is understandably so because if it were otherwise then Defendants would develop the penchant for pleading the Claimant’s cause of action outside the limitation period so as to render the suit statute bared and thus incompetent. However, where the date cannot be ascertained and if evidence has been led by the parties, the Court can ascertain the date of the accrual of the cause of action from the evidence of the Claimant. There is therefore, no law that unless the date of accrual of the cause of action is disclosed in the averments in the pleadings of the Claimant the issue of limitation of action cannot be raised and or if raised must fail. See Mrs. Comfort Olufunmilayo Asaboro & Anor V. Pan Oceanic Oil Corporation Nig. Ltd & Anor (2017) LPELR – 41558 (SC) 28 AT Pp. 30 – 31. See also Mr. Daniel Teibogren V. The Governor of Delta State & Ors (2014) CA/B/171/2009; John Ekeogu V. Aliri (1990) 1 NWLR (Pt. 126) 345, Olorunkunle V. Adigun (2012) All FWLR (Pt. 614) 139 AT p. 153.

My Lords, it is true that in law a Court must avoid delving into the substantive issues at the stage of considering interlocutory applications and therefore, must avoid making pronouncements or deciding issues at the preliminary stage which would touch on, or decide the issues to be decided in the substantive suit in order not to breach the right to fair hearing of the party so affected. Yet, the issue of whether or not the Public Officers Protection Act applies, being a jurisdictional issue, is one which can be determined in limine upon a preliminary objection and a Court faced with such an issue must determine at that stage whether or not the Public Officers Protection Act applies and which would involve a consideration and determination of the factors that renders it either applicable or not applicable, including the issues of whether or not the action complained of was ultra vires the Public Officer or whether or not the subject matter of the claim was on a continuing injury or whether or not it is one founded on land dispute or contract. See CIL Risk & Asset Management Limited V. Ekiti State (2020) 12 NWLR (Pt. 1738) 203 AT P. 233.

Thus, the questions for consideration in this appeal under the sole issue for determination therefore, are: Was the Appellant’s cause of action which arose on 9/7/2018 statute barred or not when the Appellant’s suit was filed on 6/11/2019 and was the Appellant’s suit affected by or excluded from the operation of the Public Officers’ Protection Act?

Now, by Section 2 (a) of the Public Officers Protection Act 2004, it is provided as follows: “Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect. (a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”

I am aware that the general rule of law is that the period of limitation is determined by the Courts looking at the writ of Summons and Statement of Claim or other Originating processes, in order to ascertain the date on which the cause of action arose and by comparing that date with the date on which the Writ of Summons was filed. However, as to every rule there is an exception. Thus, in circumstances where the issue of limitation period cannot be resolved and or determined by merely looking at and considering the date stated in the Writ of Summons or other Originating processes as the date the cause of action arose and comparing same with the date on which the Writ of Summons was filed, then recourse can be heard to the evidence led by the parties. See Woherem V. Emereuwa (2004) LRCN Vol. 120 AT P. 4752. See also General A.A. Shuaibu (Rtd) & Anor V. Otunba (Mrs) Felicia Koleosho (2021) LPELR – 53435(CA) per Georgewill JCA.

However, in law the parties are bound by the pleadings and or Affidavits and are thus obligated to and must conduct their cases within the confines of their pleadings. The Court is also bound by the pleadings of the parties and therefore, cannot go out of the issues as joined by the parties to make findings on facts not put in issue by the parties. See Nathan Igbudu & Ors V. Godspower Othe (2021) LPELR – 55559(CA) AT P. 51 per Georgewill JCA. See also George V. Dominion Flour Mills Ltd. (1963) NLR 74; Emegokwe V. Okadigbo (1973) 4 SC 113.

It is therefore, to the averments of the Appellant, as Claimant, in his Amended Statement of Claim filed on 7/10/2020, that I shall now turn my attention to scrutinize to see whether the Appellant’s claim was affected by or excluded from the operation of the provisions of Section 2(a) of the Public Officers’ Protection Law 2004, which is the crux of this appeal. The parties are ad idem that the Appellant’s cause of action arose on 9/7/2018, while the Appellant’s Suit was filed on 6/11/2019 before the lower Court.

On the one hand, it has been argued vehemently for the Appellant that the Appellant’s Suit fell outside the purview of the operation of the Public Officers’ Protection Act 2004 by reason of the fact that it was founded on allegations of ultra vires acts of the 1st and 2nd Respondents in withdrawing the building plan approval earlier granted to the Appellant, and also that the claims of the Appellant is one which borders on title to land as well as continuing damage and or injury of the alleged acts of the 1st and 2nd Respondents. On the one hand, it was also argued vehemently for the Respondents that the Appellant’s Suit was caught up by the provision of Section 2 (a) of the Public Officers’ Protection Act 2004 by reason of the fact that the subject matter and principal claim of the Appellant was one simply founded on the alleged withdrawal of his approved building plan by the 1st and 2nd Respondents, on which principal claim hangs all the other ancillary reliefs.

My Lords, I had earlier set out in brief the entire substance of the averments of the Appellant in his Amended Statement of Claim. In law, it is the pleadings of the Appellant that would and or should determine the subject matter of the Appellant’s claim and not his counsel submissions, no matter how brilliant, or alluring and or tempting it may be! I have taken time to consider the pleadings of the Appellant in relations to his complaints against the 1st and 2nd Respondents and it does appear certain to me, and I so find, that the claim of the Appellant is one founded strictly and squarely on the withdrawal of his building plan approval by the 1st and 2nd Respondents. This was also the finding of the lower Court, and I affirm that finding as correct and unimpeachable. It is not the business of this Court, being an appellate Court, to interfere with and or disturb a correct finding by a trial Court, as such correct findings are usually allowed to stand.

I have also looked at the contention between the parties whether or not the Appellant, even by his pleadings made any allegation that the 1st and 2nd Respondents in withdrawing the building plan approval vide the letter dated 9/7/2018, acted ultra vires their powers or outside the scope of their authority and or power or that in doing so they had acted mala – fide? There is no single averment that it was not within the powers and or authority of the 1st and 2nd Respondents to withdraw and or revoke an earlier granted building plan approval. There was also no iota of averment that in doing so the 1st and 2nd Respondents, for whatever reasons, acted mala – fide. I agree that proof of such facts if pleaded, is a function of evidence at the trial, since in law only facts and not evidence is to be led by a party. However, evidence at the trial, to be admissible, can only be led on facts duly pleaded, since in law evidence on facts not pleaded are not only inadmissible but even were inadvertently admitted in evidence, they are liable to either be expunged at the judgment writing stage or to be discountenanced in their entirety as going to no issues at all! Having taken a calm but critical look at all the four reliefs claimed by the Appellant in the Amended Statement of Claim at page 80 of the Record of Appeal, it seems very certain to me, and I so hold, that the main relief claimed by the Appellant, and which should determine the subject matter as well as the jurisdiction of the lower Court, was against the alleged acts of the 1st and 2nd Respondents ‘withdrawing the building plan approval’ granted to the Appellant by the Federal Housing Authority and seeking an Order of the lower Court setting it aside. All the remaining reliefs, numbering about three, were and remained in the finding mere ancillary to the main relief claimed by the Appellant against the 1st and 2nd Respondents.

Now, having found and held firmly that the claims of the Appellant is one founded principally on the withdrawal of the building plan approval of the Appellant by the 1st and 2nd Respondents, and having also found as fact that on the averments in the pleadings of the Appellant, there were even no allegation of any fact of the 1st and 2nd Respondents acting ultra vires their powers and or mala – fide in withdrawing the building plan approval of the Appellant, the next question that readily arises is whether or not the Appellant’s claim is also one founded on continuing injury or damage and or contract over which the provisions of the Public Officers Protection Act 2004 does not apply and or is excluded by law?

From the finding above that the principal claim, which determines both the subject matter of the suit and the jurisdiction of the Court, is one complaining about the withdrawal of the Appellant’s building plan approval by the 1st and 2nd Respondents, and seeking an order of the lower Court to set aside the withdrawal of the Appellant’s building plan approval, it follows therefore, and I so firmly hold, that the main and or principal relief and subject matter of the Appellant’s Suit cannot by any stretch of imagination and on any valid principles of law, notwithstanding the avalanche of most misconceived submissions to that effect by the learned counsel for the Appellant, culminate into a dispute on title to land and or contract over Right of Occupancy to land in dispute as was vehemently but erroneously contended by learned counsel for the Appellant. In law, the main or principal relief is the foundation upon which a party’s case is built, and not on the ancillary reliefs or claims. Hence a case of a party is circumscribed by the principal reliefs he is seeking or the main or principal claim as contained in his Originating processes before the Court. See Solana V. Olusanya (1975) 6 SC 55, Chief Registrar V. Vamos Navigation Limited (1979) 1 SC 33.

I have already alluded to the fact and found as fact that the Appellant did not plead any fact of the 1st and 2nd Respondents having acted ultra vires their powers by withdrawing the building plan approval, it follows therefore, the avalanche of submissions to that effect emanating as it were merely from the submissions of learned counsel for the Appellant should go to no issue. Nevertheless, it was given due consideration but found not to have been made out by the Appellant and therefore, discountenanced, and quite rightly too, by the lower Court in its ruling appealed against by the Appellant. I can see nowhere in the entire ruling appealed against in which the lower Court delved into any evaluation of the evidence led so far by the Appellant and made findings and or reached decisions bordering on any matter or issues in the substantive suit. I find that the lower Court, as was expected of it in law, carefully stayed within the confines of the narrow issue raised by the 3rd Respondent’s preliminary objection and refrained from and did not decide any of the substantive issues in the Appellant’s Suit in the ruling appealed against. Thus, the vehement contentions by learned counsel for the Appellant to the contrary, that is to say, that the lower Court decided on matters touching on the substantive suit at the interlocutory stage of considering the 3rd Respondent’s preliminary objection, were misconceived, baseless and are hereby discountenanced.

My Lords, it was the Appellant, who had merely through the submissions of his counsel alleged that the 1st and 2nd Respondent acted ultra vires their powers, which allegation, having no root in the pleadings of the Appellant but, emanated merely from the submissions of counsel had remained bare and unproved, and indeed unprovable being not even part of the facts as pleaded and relied upon by the Appellant in his Amended Statement of Claim at pages 78 – 81 of the Record of Appeal. The Appellant therefore, failed to show how the 1st and 2nd Respondents, who are undoubtedly Public Officers and the Appellant’s Suit having been filed well outside the three months period as prescribed by law, from 9/7/2018 – 6/11/2019, were not entitled to the protection afforded by the Public Officers’ Protection Act 2004. Ordinarily, it would appear that, in law that he who has the power or authority to approve a thing should or at least would also have the power or authority to withdraw or disapprove or cancel it. I shall say no more on this!

Now, the parties are ad idem, as I had earlier pointed out, that the cause of action arose on 9/7/2018 when the Appellant was served with the letter dated 9/7/2018, withdrawing his building approval. Yet, it took the Appellant all of the remaining part of the year 2018 and up until on 6/11/2019, almost all of the following year 2019, to file his Writ of Summons against the 1st and 2nd Respondents. It has been contended most vociferously for the Appellant that his claim was one founded on continuous damage and or injury, and therefore, excluded from the operation of the Public Officers’ Protection Act 2004? So, what would in law amount to continuing injury? An example of this was illustrated by the Apex Court in Attorney-General of Rivers State V. Attorney-General of Bayelsa State & Anor (2013) 3 NWLR (Pt. 1340) 123 AT pp. 148 – 149, where Galadima JSC, had stated inter alia thus:
“In cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months. From the Amended Statement of Claim and as equally deposed to in his Counter-affidavit, the Plaintiff averred that he continues to be deprived of the allocation he is entitled to every month and the same has not ceased. I am of the respected view that in such a situation of continuance of damage or injury which has not ceased the Defense is not available to the 1st Respondent.”
Now, bearing and or keeping the above example in mind, what is the continuous damage or injury in the very clear facts and circumstances of this case? The Appellant had on his own showing pleaded that since the letter of 9/7/2018, construction work had stopped at his site and upon the withdrawal of the building plan approval by the 1st and 2nd Respondents. See paragraphs 12, 13 and 16 of the Amended Statement of Claim at pages 79 – 80 of the Record of Appeal. On these facts as pleaded by the Appellant himself, what was the continuous damage or injury? The lower Court saw no such continuous damage or injury at all! I too see no such continuous damage or injury at all! See INEC V. Onowakpoko (2018) 2 NWLR (Pt. 1602) 134, where the Supreme Court, per Onnoghen CJN, in rejecting similar argument on continuous injury, had emphasized inter alia thus:
“Continuance of injury or damage means continuance of the legal injury and not merely the continuance of the injurious effects of a legal injury….it is clear from the record that the cause of action was the suppression of the constituency in question by statute, in 1996 following the promulgation of the Civil Rule (Political) Decree, No.1, 1996. The instant suit was filed on the 16/5/2014. Between 1996 when the cause of action arose and 2014 when the action was filed it is little over 18 years, which by the provisions of Section 2(a) of the Public Officers Protection Act renders the action so commenced outside the statutory period of three months statute barred.”
See also INEC V. Ogbadibo Local Government (2016) 3 NWLR (Pt. 1498) 167.

In truth, the case of the Appellant is his complaints against the actions and exercise of discretion of the 1st and 2nd Respondents in withdrawing his building approval and stopping him from continuing with his construction on the affected site. It is, in my finding, neither an issue bordering on declaration of title nor any breach of contract that will make the claim of the Appellant fall outside the purview and application of the Public Officers Protection Act. On the pleadings, there was even no facts alluding to or showing the existence of any contract between the Appellant and any of the Respondents but at best there could be contract existing only between the 1st and 2nd Respondents and the Federal Housing Authority but certainly not with the Appellant. In law, therefore, the Appellant cannot even sue to enforce such a contract between the 1st and 2nd Respondents and the Federal Housing Authority, of which he has no privity of contract, being not a party to the said contract even if at best it was made for his own benefit. See Unanowo V. Union Bank 2018 LPELR – 47307 (CA) AT pp. 63 – 64, per Sir Biobele Abraham Georgewill JCA. See also Prince Alabi V. Shittu Ogunlowo & Ors (1997) 6 NWLR (Pt. 509)1 per Onu JSC.

In light of the very clear facts, even as pleaded by the Appellant himself, I find that the claim of the Appellant as at the time it was filed on 6/11/2019 against the 1st and 2nd Respondents for a cause of action that arose on 9/7/2018, and for which he had within three months therefrom, to commence an action against the 1st and 2nd Respondents, had suffered a ‘still birth’ and had thus become stale and was therefore, in law incapable of any enforcement by an action in a Court of law. See Section 2(a) of the Public Officers Protection Law 2004. See also Egbe V. Alhaji (1990) 21 NSCC (Pt. 1) 306, where the Supreme Court had explained the rationale, extent and limit of application of the Public Officers Protection Law inter alia thus:
“The main object of the Public Officers Protection Law is to protect public officers who have acted pursuant to the duties of their office from being harassed with stale claims and proceedings. Thus, the law is designed to protect an officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification.”
See also Ikosi Industries Limited V. Lagos State Government & Ors (2017) LPELR – 41867(CA) where this Court per Georgewill JCA had stated inter alia thus:
“My Lords…the law considers all claims commenced after the limitation period as stale, as death perhaps and thus awaits the summons from on high on the resurrection day but until then it remains stale and unenforceable in a Court of law.”
See generally Hung V. E.C. Investment C. Nig. Ltd. (2016) LPELR – 42125 (CA), Onokomma V. Union Bank of Nigeria Plc (2017) LPELR – 42748 (CA), Doris Aguele V. Aigbogun (2021) LPELR – 53504 (CA) per Sir Biobele Abraham Georgewill JCA, Clifford Osuji V. Nkemjika Ekeocha (2009) LPELR (2018) (SC) per Adekeye JSC, Gabriel Iwuoha & Anor V. NIPOST & Anor (2003) 8 NWLR (Pt. 822) 308 AT 341, Mrs. Grace Achonye & Anor V Francis Obunike Eze & Anor (2014) LPELR – 23782 (CA) per Ige JCA. My Lords, as I bring my consideration of issue near to its befitting close, let me pause to state that the issue of limitation of action has become a jurisdictional issue and having already found that the Appellant’s suit was statute barred, and thus incompetent, the law is that once there is absence of jurisdiction there can be no competence in the Appellant’s claim to be heard and determined on the merit, since jurisdiction is the life blood of every cause or action. Thus, where the requisite jurisdiction is found to be lacking, that is indeed the end of the matter. See AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, where the Supreme Court per Kayode Eso JSC, God bless his soul) had put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain.”
Having therefore, arrived at the inescapable conclusion that the Appellant’s Suit filed on 6/11/2019 before the lower Court was filed out of time and thus, statute barred, that ought to be and is indeed the end of the matter. It is a closed chapter! It follows therefore, and I so hold that the decision by the lower Court that the Appellant’s suit was statute bared was correct. I find both the reasoning and the conclusion by the lower Court as correct. In law, once the conclusion reached by a trial Court is correct on the evidence led before it, an appellate Court will not interfere with the correct conclusion of the trial Court. See Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 AT p. 198, where Edozie, JSC, had pronounced with finality on this vexed issue, thus:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere.”

In the light of all I have stated and found as above, I hereby resolve the sole issue for determination against the Appellant in favour of the 1st, 2nd and 3rd Respondents.

On the whole therefore, having resolved the sole issue for determination against the Appellant in favour of the 1st, 2nd and 3rd Respondents, I hold that this appeal is bereft of any iota of merit and is thus, liable to be dismissed in its entirety. Consequently, this appeal is hereby so dismissed.

In the result, the ruling of the High Court of the Federal Capital Territory Abuja, Coram: S. U. Bature J, in Suit No. CV/247/2019 Mallam Rabiu Mohammed V. Federal Capital Development Authority & Ors delivered on 25/3/2021 upholding the preliminary objection of the 3rd Respondent challenging the competence of the Appellant’s suit and consequently, striking out the Appellant’s suit for being statute barred, is hereby affirmed.

There shall be no order as to cost.

PETER OLABISI IGE, J.C.A.: I have had the privilege of reading the leading judgment just delivered by my learned brother GEORGEWILL, JCA.

I agree with the reasoning and conclusion of my Noble Lord. I adopt them as mine. The ruling of the lower Court in Suit No. CV/247/2019 Coram: S. U. BATURE – J, delivered on 25/3/2021 upholding the Preliminary Objection of the 3rd Respondent challenging the competence of the Appellant’s suit and therefore, striking out the Appellant’s suit for being statute barred is hereby affirmed.
I also abide with the consequential order as to cost.

DANLAMI ZAMA SENCHI, J.C.A.: The lead judgment of my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA just delivered was read by me before now. The lead judgment succinctly and in clear terms captured all the issues raised in this appeal and they were well considered and resolved. And of particular interest, is the resolution and finding as regards the objection by the 3rd Respondent on the question of address for service.

There is no doubt that a notice of appeal, with all intents and purposes is an originating process and therefore it must be served on a party affected by the appeal at a named address for service of process (es). In other words, the issue of endorsement of a party’s name and the party’s address for service is fundamental. Thus, a person who files any process must take the issue of address for service seriously. Order 2 Rule 6, Court of Appeal Rules, 2016 provides:-
“Where under these rules, any notice or other process is required to have an address for service endorsed on it, it shall not be accepted for filing by the Registry of the lower Court of the Registry of the Court, or where accepted, it shall not be deemed to have been properly filed in so far as such address has not been endorsed on it.”
This provision is devoid of any confusion, it is plain, clear and sacrosanct and must therefore be observed strictly in line with the doctrine of fair hearing.

In conclusion, I adopt all the findings in the lead judgment as mine and I agree that this appeal lacks merit and I dismissed it as well.

The judgment of the High Court of the Federal Capital Territory in Suit No. FCT/HC/CV/247/2019 delivered on 25th March, 2021 by S.U BATURE, J is hereby affirmed.