MR ADEBAYO AFOLABI VICTOR v. FEDERAL UNIVERSITY OF TECHNOLOGY, AKURE & ANOR
(2013)LCN/6552(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of November, 2013
CA/AK/39/13
RATIO
CONSIDERATIONS TO ASCERTAIN WHETHER AN ACTION IS STATUTE BARRED
Herein lies the question, how to determine when a case is statute barred. To ascertain if the appellant/plaintiff brought his action within the stipulated time one needs to take cognizance of when the cause of action accrue. In Egbe vs. Adefarasin (1987) 1 NWLR (Pt.47) 1, cause of action is referred to as the factual situation giving rise to the claim. Also in Bello vs. Attorney-General of Oyo State (1986) 5 NWLR (Pt.45) 828 @ 876 “such factual claim must be recognized by the law as giving rise to a substantive right capable of being claimed against the defendant.” Per SOTONYE DENTON WEST, J.C.A
ESSENCE OF SERVICE OF PROCESS ON A DEFENDANT
Be that as it may the service of process on the defendant is to enable him become aware of the action pending against him in court in order for him to take steps to defend himself if he so wished. The right of the defendant to be duly served with court processes is a right which is mainly for his benefit and which can on the other hand be waived by him. Thus, where the defendant on his own initiative upon becoming aware of the existence of the process, then takes steps to obtain them himself and thereafter file a response to the claims therein, he will be treated as having waived his right of service. See the cases of KIDA vs. OGUNMOLA (2006) 13 NWLR (Pt.997) 377 at 393 F-G; and EFFIONG vs. IKPEME (1999) 6 NWLR (606) 260 at 270; and ARIORI vs. ELEMO (1983) 1 SCNLR 1. It is therefore not every situation where failure to serve originating processes or other processes at that on the defendant that vitiates the proceedings. Per CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
MR ADEBAYO AFOLABI VICTOR – Appellant(s)
AND
1. FEDERAL UNIVERSITY OF TECHNOLOGY, AKURE
2. THE REGISTRAR, FEDERAL UNIVERSITY OF TECHNOLOLGY, AKURE – Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): The plaintiff who hereinafter shall also be referred to as the appellant, commenced an action against the defendants who hereinafter shall be referred to as the respondents, at the Federal High Court, Akure, Ondo State vide a Writ of Summons issued 4th day of August, 2011 and a Statement of Claim also filed on the same 4th of August, 2011. Therein the plaintiff made the following claims against the defendants:
1. A DECLARATION that the handling, processing and subsequent computation of the Plaintiff’s examination papers in courses: MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MEE 311, MEE 302, EEE 352 and MEE 312 by the defendants was most inappropriate, negligent and does not reflect his actual grades/performance in the said examinations.
2. A DECLARATION that the refusal of the Plaintiff’s request by the defendants to either investigate how he came about the low scores or, remark his examination scripts altogether in courses MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MEE 311, MEE 302, EEE 352 and MEE 312 amount to defendants abandoning their duty of care to the Plaintiff.
3. A DECLARATION that the deliberate handling of the Plaintiff’s examination scripts in MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MEE 311, MEE 302, EEE 352 and MEE 312 with view to parade or portray him as academically incompetent is very unfair and inconsiderate looking at his strong academic records.
4. AN ORDER of this Honourable Court compelling the defendants to make known to the Plaintiff efforts made to investigate his complaint and why it took so long (eight months) December, 2010 – July, 2011 to publish their findings.
5. AN ORDER of this Honourable Court either directing the defendants to remark the Plaintiffs examination scripts in courses MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MEE N311, MEE 302, EEE 352 and MEE 312 or to appoint neutral, unbiased and independent scholars from an institution as this Court may direct to remark the Plaintiff’s examination
6. Scripts in courses MEE 202, MEE 307, MEE 308, MEE 301, MEE 305, MEE 309, MEE 311, MEE 302, EEE 352 and MEE 312 and rectify his result accordingly.
7. AN ORDER of this Honourable Court setting aside the defendants letter dated 12th July, 2011 headed: SENATE DECISION EXTRACT: REQUEST FOR RECTIFICATION OF RESULT: ADEBAYO V. A. (MEE/05/5405).
8. AN ORDER directing the defendants to issue a final result and transcripts reflecting the actual performance of the Plaintiff in the said examination.
9. General damages as this Honourable Court will deem just and appropriate in the peculiar circumstances of this case.
10. Special damages in the sum of N1,650,000.00 at the rate of N150,000 per month from October, 2010 – August, 2011, as lost earnings for the period the plaintiff would have been gainfully employed if he had been given an appropriate academic grade and continuing until judgment is delivered.
11. Cost of this law suit.
12. AN ORDER directing the defendants to investigate persons behind the attack, intimidation and harassment of the Plaintiff at various times and places within the school premises from October, 2010 up to date.
13. AN ORDER directing the defendants to explain why the plaintiff’s department stopped pasting results from 2008 – 2010 (300 Level to 500 Level) and why he was not allowed to know his final result before convocation.
As shown at page 18 of the record of appeal, the learned counsel for the respondents filed a conditional appearance on 11th September, 2011 and dated 19th August, 2011. The said conditional appearance was signed by O.J. JEJELOLA & Co. The learned counsel followed up by filing a Notice of Preliminary Objection brought pursuant to Order 29 Rules 1, 2 and 4 of the Federal High Court (Civil Procedure Rules), 2009 wherein the said respondent as applicant prayed that the suit be struck out on the ground that it is/was statute barred same having been filed more than two years after the accrual of the cause of action. The Motion on Notice is dated and filed 2nd September, 2011.
In reaction to the Notice of Preliminary Objection, the learned counsel for the plaintiff/appellant one S.L. AKANMODE filed a Motion on Notice dated 5th December, 2011 and filed 6th December, 2011. In the said motion which was brought pursuant to Order 10 Rules 21 and 23 of the Federal High Court (Civil Procedure Rules), 2000 counsel prayed the trial court for a directive order against the defendants (respondents herein) to issue to the plaintiff (appellant herein) the degree certificate of SECOND CLASS UPPER DIVISION (reflecting his actual performance in the affected courses) as well as an order entering summary judgment for him in specified sums as damages. See page 27 of the record of appeal. S. L. AKANMODE of counsel also filed what was captioned: “PLAINTIFF’S DEFENSE TO DEFENDANT’S COUNTER-CLAIMS IN MOTION ON NOTICE” as well as written address on the motion. See pages 33 – 73 of the record of appeal.
After the suit was struck out and relisted with the leave of the trial court, the Motion on Notice of Preliminary Objection was moved by the learned counsel for the defendants/respondents and the plaintiff/appellant replied to same. In a considered ruling delivered 16th January, 2013, the learned trial Judge Justice I.M. Sani saw merit in the Notice of Preliminary Objection consequent upon which he dismissed the plaintiff’s suit for being statute barred. The plaintiff/appellant feeling aggrieved with the ruling has appealed to this court. To this end he filed a Notice of Appeal dated and filed 11th February, 2013 containing five grounds of appeal.
The parties in compliance to the rules of this court duly filed and exchanged their respective briefs of argument. The Appellant’s Brief of Argument dated 16th April, 2013 and filed 17th April, 2013 was settled by CHIEDOZIE MADUBUEGWU, Esq. On the other part, the Respondents’ Brief of Argument which included a Notice of Preliminary Objection made pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011, dated 14th May, 2013 and filed 16th May, 2013 was settled by CHIEF O.J. JEJELOLA (JP). The Appellant’s Reply Brief dated 3rd June, 2013 and filed 4th June, 2013 was settled by BARR. OLADAISI BUSAYO.
At the hearing of the appeal on 8th October, 2013, the appellant represented himself having sought for and obtained the leave of this court on 6th May, 2013, to prosecute his appeal as a person without means in line with Order 13 Rules 1 and 3 of the Court of Appeal Rules, 2011. Consequently he identified the Appellant’s Brief of Argument dated 16th April, 2013 and filed 8th May, 2013. He equally identified the Appellant’s Reply Brief dated 3rd June, 2013 and filed 4th June, 2013. Appellant adopted and relied on both briefs as his argument in this appeal. He urged the court to grant the appeal and set aside the judgment of the Lower Court. G.O. OMOEDU, Esq. identified, adopted and relied on the Respondents’ Brief of Argument as their argument in this appeal. Counsel drew the attention of the court to their Notice of Preliminary Objection as contained at paragraph 3.01 line 8 where they had “2011” and sought the leave of court for it to be amended to read “2013” and paragraph 3.03 line 5 where the year “2012” is to read “2013”. He urged the court to dismiss the appeal and affirm the judgment of the lower Court.
Having raised a preliminary objection to the hearing of this appeal pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011, it is necessary to resolve it first before going into the merit or demerit of the appeal. The grounds of objection as enumerated by the learned counsel for the respondents are that:
i. The decision being appealed against was a ruling delivered in an interlocutory application for a preliminary objection as a result of which the leave of the Lower Court was required which was not obtained by the appellant in the instant case.
ii. The Notice of Appeal filed in this case is incompetent because it was filed after fourteen days out of time without any leave of court.
iii. The grounds of appeal contained in grounds 1, 3, 4 and 5 of the Notice of Appeal are grounds of mixed law and facts which requires the leave of the court but which was not obtained by the appellant.
iv. The appellant in this case failed to seek the leave of court below or that of the appellate court before filling this appeal as required in respect of a person permitted by the Lower Court to sue in forma pauperis.
v. The Appellant’s Brief was filed out of time without leave and therefore incompetent.
vi. The Appellant’s Brief filed in this case was not prepared by a Legal Practitioner as required by the Rules of this Court thereby rendering same incompetent.
In proffering his argument on the preliminary objection, the learned objector/respondent submitted that a party who is dissatisfied with the interlocutory decision of the Federal High Court has every right to appeal against the decision to the Court of Appeal; but to do that effectively, the appeal must comply with the provisions of Section 242 (1) of the Constitution of Nigeria 1999 as amended. He submitted that the period prescribed in Section 24 (2)(a) of the Court of Appeal Act Cap. C36 LFN, 2004 for appealing against an interlocutory decision is 14 (fourteen) days. Counsel argued that in the instant case the ruling of the Lower Court was delivered on the 16th of January, 2013 and the Notice of Appeal was filed on 11th February, 2013 as at which time the appellant was already out of time by eight days pursuant to Section 24 (2)(a) of the Court of Appeal Act (supra) and that he did not seek the leave of the court below or of this court for extension of time within which to file Notice of Appeal. Counsel relied on the cases of AMOO VS. ALABI (2003) FWLR (Pt.174) page 198 at 210-211, paras. G-A; and UDOETE VS. ITEIL (2003) FWLR (Pt. 143) page 362 at 377 paras. G-H; in submitting that failure to seek leave is fatal to the appeal and therefore renders the appeal incompetent.
Still on the necessity of seeking the leave of court, the learned objector/respondent pointed out that where the grounds of appeal are grounds of fact or mixed law and fact, an appellant requires the leave of court to file the Notice of Appeal. He submitted that in the instant case, that grounds 1, 3, 4 and 5 contained in the Notice of Appeal are grounds of mixed law and fact and grounds of facts. Counsel referred to F.B.N. Plc. vs. IWUMUNE (2004) ALL FWLR (Pt.234) page 1970 at 1979, paras. D-E wherein it was held that:
“Where a ground of appeal relates to an interlocutory decision which did not finally dispose of the rights of the parties and that ground of appeal involves issues of mixed law and facts or facts alone, a would-be appellant, must seek and obtain the leave of court to incorporate such grounds of appeal unto his notice of appeal for he cannot appeal as of right”.
Learned counsel cited further the cases of IGWE vs. KALU (2002) 26 WRN page 58 at 84 lines 20-25, and ONONYE VS. CHUKWUMA (2005) 29 WRN. page 125 at 147-148 lines 45-5.
Going further the learned objector/respondent submitted that since the appellant failed to seek leave of the trial court or of the appellate court as required under Order 38 Rule 10 of the Federal High Court (Civil Procedure Rules) 2009 that that makes the Notice of Appeal filed in this case incompetent and should be struck out.
Again counsel argued that the Appellant’s Brief was not prepared by a Legal Practitioner as required under Order 18 Rules 3(1) of this Court this is in addition to the fact that it was filed out of time contrary to Order 18 Rule 2 (supra). It was against this backdrop that the learned counsel submitted that the Records of Appeal was transmitted to this Court on the 11th of February, 2013 while the Appellant’s Brief was filed 17th of April, 2013.
Consequent upon his foregoing submissions the learned objector/respondent urged this court to discountenance the argument canvassed in the Appellant’s Brief and strike out the appeal.
In reaction to the first arm (i) of the respondents’ notice of preliminary objection, the appellant posed two questions for consideration namely:
1. Whether the trial court’s ruling on 16-Jan-2013 was a final or interlocutory decision.
2. Whether the appellant requires leave of the court to appeal against the decision.
In dealing with the above questions the appellant recalled what the Supreme Court had laid down as the guiding principle for determining whether an order or judgment is final or interlocutory in the case of AKINSANYA vs. UBA LTD. (1986) NSCC 17 (PT.11) 968 wherein it was held on page 969, lines 45-50 that:
“…an order or judgment is final only when it finally disposes of the rights of the parties i.e. makes an order which would not bring the matter further back to itself.”
His lordship KAYODE ESO, JSC delivering the lead judgment on page 979, lines 25-30 observed the proposition of lord Alverstone, C.J. in the case of Bozson vs. Altrincham UDC (1903) 1 Q.8. 547 wherein he stated thus:
“It seems to me that the real test for determining this question ought to be this: Does the judgment or order as made, finally dispose of the rights of the parties? If it does then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”
See also OGOLO vs. OGOLO (2006) 2 SC. (PT.1) 61; EGBE VS. ADEFARASIN (1987) 1 NWLR (PT.47) 1; UTB VS. ODOFIN (2001) 8 NWLR (PT.715) 295 per Aderemi, JCA at pp 301-302, paras E-E; and MOBIL PRODUCING NIG. UNLIMITED VS. LSEPA (2001) 8 NWLR (PT.715) 495.
Upon all the foregoing authorities referred to, the learned counsel for the appellant submitted that the trial court’s ruling on 16-Jan-2013 was a final decision.
Moving on to the next question which is whether the appellant needs the leave of court to appeal against that final decision, learned counsel relied once more on the case of OGOLO vs. OGOLO (SUPRA) per Onnoghen, JSC at page 73, line 35 and page 74, line 13.
Against the backdrop of the above cited authority and the provision of Section 241(1)(a) of the 1999 Constitution, the learned counsel for the appellant submitted that the appellant does not need the leave of either the trial or appellate court to appeal against the final decision of the trial court. Counsel argued that Section 242(1) of the 1999 Constitution and the case of Ahamefula vs. Imperial Medical Centre (2004) All FWLR (Pt.232) 1553 relied upon by the respondents’ counsel are inapplicable here as they relate to appeals with leave.
On the second arm (ii) of the respondents’ preliminary objection which is that the Notice of Appeal filed in this case is incompetent because it was filed fourteen days out of time without any leave of court the learned counsel for the appellant contended that since the trial court’s ruling on 16-Jan-2013 was a final decision, the time required to appeal is 3 months and not 14 days as stated by the respondents’ counsel. He referred the court to Section 24(2)(a) of the Court of Appeal Act, Cap C.36, LFN 2004.
The third arm (iii) of the respondents’ preliminary objection reads that grounds 1, 3. 4 and 5 of the Notice of Appeal are grounds of mixed law and facts which requires the leave of court to file the said Notice of Appeal but which was not obtained by the appellant. The learned counsel for the appellant in reaction to this preliminary objection, referred again to the authority of OGOLO VS. OGOLO per Onnoghen, JSC (SUPRA) to reiterate that the appellant does not require leave of court to file the Notice of Appeal against the trial court’s decision delivered on 16-Jan-2013. He went further to ask the question: “if the grounds of appeal were really incompetent as the respondent’s counsel claimed, then why did he bother to formulate issues from them?” He urged this court to uphold the Notice of Appeal as competent.
Arm four (iv) is that the appellant failed to seek the leave of either the Lower Court or appellate court before filing this appeal as required by Order 38 Rule 10 for a person permitted to sue in forma pauperis. To argue this, the learned counsel for the appellant referred to the provisions of Order 38 Rule 10 of the Federal High Court (Civil Procedure Rules) 2009, and Section 241 (1)(a) of the 1999 Constitution (supra) and contended that this Order 38 Rule 10 is inconsistent with Section 241(1)(a) (supra). Consequent upon the inconsistency, the learned counsel submitted that by virtue of Section 1(3) of the 1999 Constitution, that Section 241(1)(a) of the Constitution (supra) shall prevail in this case while Order 38 Rule 10 (supra) is void and therefore not legally binding in this case. Counsel anchored by submitting that the appellant does not need the leave of either the trial or the appellate court to file this appeal as a person permitted to sue in forma pauperis.
On arm five (v) which is that the Appellant Brief was filed out of time without leave and therefore incompetent, the learned counsel for the appellant submitted that the record of appeal was transmitted to the Court of Appeal on 21-March-2013 and not 11-Feb-2013 as claimed by the respondents’ counsel. That the appellant’s brief was filed on 17th April, 2013 just 27 days after the record of appeal was transmitted to the Court of Appeal and that this is still within the 45 days required by Order 18 Rule 2 of the Court of Appeal Rules, 2011. Counsel therefore submitted that the appellant’s brief was filed within the time allowed by the rules of court and that the same is competent and should be upheld.
The sixth (vi) and last arm of the respondents’ Notice of Preliminary Objection which is that the appellant’s brief in this case was not prepared by a Legal Practitioner as required by the Rules of this Honourable Court thereby rendering same incompetent the learned counsel for the appellant referred this Court to Section 12 of the Court of Appeal Act, 2004 consequent upon which he submitted that the appellant’s brief could not have been prepared by a legal practitioner since he was appearing in person and could not afford to pay legal fees in the prosecution of this case. Nevertheless, the appellant had on 8-May-2013 gotten the appellant’s brief settled by a Legal Practitioner, Chiedozie Madubuegwu, Esq. of Fashakin & Fashakin Law Chamber, No. 44, New Hospital Road, Akure, Ondo. Counsel concluded that it was pointless for the respondents to raise this issue as an objection because Order 18 Rule 3(1) was complied with.
I think that this is a proper point for me to pause and delve into an issue which the appellant had raised regarding service and or non-service of the respondents’ Notice of Preliminary Objection on him. The appellant’s reaction thereon is likewise captured in issue 2 (two) as distilled by the learned counsel for the respondents in the Respondents’ Brief of argument. The said issue reads:
3.1 Whether or not the learned judge was right when he held that the appellant was properly served with the Motion on Notice for a Preliminary Objection dated 2nd day of September, 2011 and that the appellant had responded thereto.
In his submission on the above issue, CHIEDOZIE MADUBUEGWU, ESQ, counsel for the appellant stated that in response to the action commenced on 4-08-11 against the defendants, they filed a motion on notice in defense on 2-09-11 but it was neither served on him (the plaintiff/appellant) nor on his former counsel, S.L. Akanmode., as required by Order 14 Rule 11 of the Federal High Court (Civil Procedure Rules) 2009 which provides thus:
“…a defendant makes default in pleading when he fails to file and serve his statement of defence on the plaintiff within the time fixed for doing so by these Rules or by the Court.”
Learned counsel for the appellant went on to submit that the address for service was on the writ of summons served on the defendants, yet no service of the motion on notice in defence was effected on the counsel for the appellant in the manner required by law. It was when the appellant went to the Lower Court on 22-11-11 that the bailiff (Mr. Atodo Ogbodu) informed him that the defendants had filed a defense. On enquiring from the said bailiff why the process was not served on him the plaintiff/appellant, the bailiff replied that the defendants did not fund the service of the process. Learned appellant’s counsel submitted that he raised this issue of non-service of the process before the trial court on 12th June, 2012 and 5th November, 2011 and asked the said trial court to strike it out for non-service and abuse of court process but this was not considered. While relying on the under-listed authorities, the learned counsel for the appellant concluded that the decision of the Lower Court delivered 16th January, 2013 based on the motion of preliminary objection that was not served on the plaintiff/appellant as required by law, is a nullity. The cases are:
1. S.G.B. (Nig.) Ltd. vs. Adewunmi (2003) 4 SC. (Pt.1) 93 at 98, lines 25-43 where KATSINA-ALU, JSC. observed thus:
“…..It is now trite law that failure to serve a process, where service of a process is required is a failure which goes to the root of the case. See Craig v. Kanseen (1943) KB 256 at 262. Service of a process on a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the court seised of the matter. Clearly, due service of process of court is a condition sine qua non to the hearing of any suit. Therefore if there is a failure to serve a process where service of process is required, the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set aside as a nullity, See Mbadinuju vs. Ezuka (1994) 8 NWLR (Pt.364) 5.”
2. Obimonure vs. Erinosho & Anor. (1965) NSCC Vol. 4 per BRETT, JSC. at pg.291, lines 40-45; p.292, lines 1-4, 9-12.
3. Odutola vs. Kayode (1994) 2 NWLR (Pt.324) 1 per ADIO, JSC. at pg. 16, paras. C-E ans pt.22, paras. B-C.
4. Kida vs. Ogunmola (2006) 6 SC.147, per MUSDAPHER, JSC. at pg, 152, lines 9-16; pg. 153, lines 11-20.
Consequent upon the foregoing, the learned counsel for the plaintiff/appellant urged on us to set aside the said decision on the ground of non-service of the process on him.
The learned counsel for the defendants/respondents’ contention herein is that the learned trial Judge was right when he held that the plaintiff/appellant was properly served with the Respondents’ Motion on Notice for a Preliminary Objection dated and filed 2nd September, 2011 and that he the appellant responded thereto. Learned counsel submitted that the respondents filed the Motion on Notice for a Preliminary Objection together with written address and same were served by the bailiff of the Lower Court on the appellant’s counsel who at the time was S.L. Akanmode Esq., on the 2nd of September, 2011 and as required by law. As a result of service of the said Notice of Preliminary Objection, the appellant specifically reacted to it in his Plaintiff Defence to Defendant’s Counter-Claim in Motion on Notice, Plaintiff’s Reply to Defendant Counter-Claims in the Affidavit in support, Plaintiff written submission in respect of Motion for summary judgment all filed on the 6th day of December, 2011. See pages 33-45 of the record of appeal.
Further in his submission the learned counsel for the respondents argued that on the 5th of November, 2012 that the learned trial Judge Hon. Justice I.M. Sani ordered the respondents to serve the appellant in the open court with the Motion on Notice dated 2nd September, 2011. The matter was then adjourned for the appellant to study the motion on notice served on him in the open court. See page 100 of the record of appeal. Counsel opined that a party who is given ample opportunity to present his case cannot later be heard to complain that he was not heard. He relied on the case of BILL CONSTRUCTION CO. LTD. vs. I & S/ST LTD. (2007) 7 WRN page 152 at 164 lines 10-20 to argue that having adjourned the Motion on Notice for 14 (fourteen) clear days in favour of the appellant before it was heard is an indication that the learned trial Judge duly observed the principle of natural justice as enshrined in Section 36 (1) of the 1999 Constitution as amended.
The learned respondents’ counsel finally urged on us to resolve issue two in favour of the respondents.
In the appellant’s reply as contained in his reply brief, the said appellant denied the respondents’ submission that the Notice of Preliminary Objection was served on his former counsel, S.L. Akanmode Esq. as required by law. As at 13th February, 2013 when the record of appeal was settled [see pp. 127-128 of the record] there was no affidavit of service of the respondents Notice of Preliminary Objection dated 2nd September, 2011. According to the learned counsel if any such process is found in the court’s record, then it must have been fabricated.
On the respondents’ second contention that the appellant was served the motion in the open court on 5th November, 2012, the learned counsel for the appellant in reply submitted that by the rules of court, a respondent is required to file and serve his defence on the appellant within 30 days of being served with the writ of summons. Thus, service by the 5th of November, 2012 was 14 months after the respondents had filed the said motion on notice. It was therefore not duly served within time fixed for doing so by the rules of court.
Against this backdrop and relying on the authorities of Odutola vs. Kayode (supra) and S.G.B. (Nig.) Ltd. vs. Adewunmi (2003) 4 SC. (Pt.1) 93, the learned counsel for the appellant concluded that the trial court’s decision based on the respondents’ motion on notice of preliminary objection, dated 2nd September, 2011 that same was served on the appellant as required by Order 14 Rule 11 (supra) is a nullity and should be set aside.
RESOLUTION OF THE ISSUE OF SERVICE OR NON-SERVICE OF THE NOTICE OF PRELIMINARY OBJECTION ON THE APPELLANT AS ENCAPSULATED IN ISSUE 2 (TWO) OF THE RESPONDENTS’ BRIEF.
Undoubtedly the essence of proper and timely service of processes on an adversary can never be overemphasized. Due exercise of service of processes pave the way to fair hearing as envisaged by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
By the provision of Order 6 Rule 3 of the applicable Federal High Court (Civil Procedure) Rules, 2009:
“No service of a Writ of Summons or other process on the defendant shall be necessary when the defendant by his legal practitioner undertakes in writing to accept service.”
The contention of the respondents that the appellant was served at the first instance with the Motion on Notice of Preliminary Objection dated and filed 2nd September, 2011 through S.L. AKANMODE his counsel at the time is being denied by the said appellant. When service is denied, it is trite that the authentic and acceptable prima facie proof of service of process is usually by way of affidavit of service duly sworn to by the bailiff or any other officer authorized to effect such service. Suffice it to say that there is no such proof in the record of the court.
The respondents on the other hand contended that despite service of the motion on the then appellant’s counsel, which service was denied by the appellant they had cause to effect another service of the said motion personally on the appellant on the 5th of November, 2012 in the open court and on the directive of the trial court. Granted that that was the situation, it still will not obviate the necessity of filing an affidavit of service and as already noted such an affidavit is not contained in the record of appeal. Be that as it may the service of process on the defendant is to enable him become aware of the action pending against him in court in order for him to take steps to defend himself if he so wished. The right of the defendant to be duly served with court processes is a right which is mainly for his benefit and which can on the other hand be waived by him. Thus, where the defendant on his own initiative upon becoming aware of the existence of the process, then takes steps to obtain them himself and thereafter file a response to the claims therein, he will be treated as having waived his right of service. See the cases of KIDA vs. OGUNMOLA (2006) 13 NWLR (Pt.997) 377 at 393 F-G; and EFFIONG vs. IKPEME (1999) 6 NWLR (606) 260 at 270; and ARIORI vs. ELEMO (1983) 1 SCNLR 1. It is therefore not every situation where failure to serve originating processes or other processes at that on the defendant that vitiates the proceedings.
In the instant appeal, the appellant acquiesced in the fact that he was served with the motion on notice in the open court on the 5th of November, 2012 which was about 14 months after the same was filed in court. According to the appellant the process was served outside the time as stipulated by the rules of court. He relied on Order 14 Rule 11 of the Federal High Court Civil Procedure Rules, 2009 and it reads:
“In this order, a defendant makes default in pleadings when he fails to file and serve his statement of defence on the plaintiff within the time fixed for doing so by these Rules or by the Court.”
It seems to me and I so hold that the learned counsel for the appellant has confused issues in this regard. This is because Order 14 Rule 11 supra referred to by him is concerned with the service of defendant’s statement of defence as opposed to the situation at hand wherein what is at stake is the service of a motion on notice of preliminary objection. See page 13 of the record of appeal for the process in issue which is boldly captioned:
“MOTION ON NOTTCE BROUGHT UNDER OR.29 RULES (1), (2) AND (4) OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE RULES) 2009 AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT”.
I deem it important to reproduce Order 29 Rules 1, 2 and 4. They read:
1. Where a defendant wishes to-
(a) dispute the Court’s jurisdiction to try the claim; or
(b) argue that the Court should not exercise its jurisdiction, he may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the plaintiff’s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.
2. A defendant making such application must first file along with the application a memorandum of appearance stating that he is appearing conditionally.
4. An application under this order shall:
(a) be made within twenty one days after service on the defendant of the originating process, and
(b) be supported by affidavit where it is not based on ground of law alone.
The originating process i.e. the writ of summons and the statement of claim were served on the defendants on 4th August, 2011. They were therefore to bring this their motion of Preliminary Objection within twenty one days from the 4th of August, 2011. This is to say that the motion ought to have been filed by the 25th August, 2011. Contrary to the provision of Rule 4 (a) of Order 29 supra, the defendants filed the motion on the 2nd of September, 2011 thus being out of time by (8) eight days.
In any event it is trite that where the rules provide for the doing of an act within a given time frame and there is failure on the part of any of the parties to carry out the act within the specified time, the party in default can carry out the act consequent upon the leave of the trial court sought and obtained.
It is on record that on the 5th of November, 2012, when the plaintiff/appellant in the open court denied service of the said Motion of Preliminary Objection, the learned trial Judge there and then ordered the defendants/respondents to serve the motion on him. The case was accordingly adjourned to the 22nd November, 2012 to allow the plaintiff/ appellant time to study the motion on notice served on him. (See pages 99-100 of the record). Come 22nd November, 2012 the learned trial Judge had this to say at page 103 lines 1 and 2:
“Court: From the records of the court, the plaintiff has been served and has responded. The defendant/applicant can move the application dated 2/9/2011”
Thus, upon satisfying himself that the plaintiff had been served with the defendants’ Motion on Notice of Preliminary Objection dated and filed 2nd September, 2011 and that the said plaintiff had filed his response thereto, the learned trial Judge then went on to hear the motion.
Undoubtedly, the learned trial Judge from the foregoing gave leave on the 22nd of November, 2012, albeit viva voce for the plaintiff/appellant to be served out of time with the motion paper. The plaintiff/appellant also had ample time from the 5th to the 22nd November, 2012 to study and react to same if he so wished. However, this is not to say that I am not aware of the fact that plaintiff/appellant had before then, i.e. on the 6th of December, 2011 filed amongst others his response to the motion in issue which he captioned: PLAINTIFF’S DEFENSE TO DEFENDANT’S COUNTER-CLAIMS IN MOTION ON NOTICE. See page 33 of the record.
I am of the firm view that having adjourned and allowed the appellant 17 (seventeen) clear days from the date of service upon him of the Motion on Notice of Preliminary Objection, to the date of hearing the same, the appellant cannot be heard to complain that he was not served with the motion in question and or that he was not given a fair hearing on it. The trial Judge truly observed the principle of fair hearing as guaranteed in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
I am saying in effect that the learned trial judge was right when he held that the appellant was properly served with the motion on notice for a preliminary objection dated 2nd September, 2011 and that he responded to it. This finding also takes care of issue 3.1 as formulated by the learned counsel for the appellant in the appellant’s brief of argument. Accordingly issue two as formulated by the learned counsel for the respondents is resolved in favour of the respondents and against the appellant.
RESOLUTION OF THE RESPONDENTS NOTICE OF PRELIMINARY OBJECTION.
Determining the two questions posed herein by the learned counsel for the appellant will settle the issue raised by the learned objector/respondents in the first arm (i) of their objection. The questions read:
1. Whether the trial court’s ruling on 16-Jan-2013 was a final or interlocutory decision.
2. Whether the appellant requires leave of the court to appeal against the decision.
To determine whether a ruling or an order or a judgment is final or interlocutory in nature the authority of Ogolo vs. Ogolo (supra) cited amongst others by the learned counsel for the appellant seems to me to settle the issue one way or the other. Therein the Supreme Court per Onnoghen, JSC held as follows at page 73, lines 15-27:
“I agree with learned counsel for the respondents that the correct test in determining whether a decision is final or interlocutory is to look at the nature of the order made rather than the nature of the proceeding resulting in the order. When viewed in that way it becomes obvious that a decision reached in an interlocutory application may be final if it disposes finally of the rights of the parties having no further reference to that court on the matter in which it has delivered its decision. For instance, a decision by a court refusing an application to transfer a case is a final decision since it has finally determined the rights of the parties as to whether or not to transfer the case.”
Without much ado, in the instant case, the appellant’s action in suit nos.FHC/AK/C5/56/11 was dismissed by the Lower Court on its holding that it was statute barred. I am not unmindful of the fact that the trial court’s decision was reached based on the defendants/respondents’ motion on notice dated and filed 2nd September, 2011. The trial court in determining the motion on the 16th of January, 2013, also determined the substantive action by holding same to be statute barred. The nature of the order made by the trial court in respect of both the motion on notice as well as the substantive suit shows that the rights of the parties in both instances were finally determined. There was nothing left for the trial court to do with the said motion on notice on the one hand and substantive action filed by the plaintiff/appellant on 4th August, 2011 on the other hand. The rights of the parties have accordingly been disposed off with finality by the learned trial court. Thus, the trial court’s ruling made 16th January, 2013 seems to me to be and I so hold, a final order of the said trial court as opposed to being an interlocutory order as argued by the learned counsel for the respondents.
In Ogolo vs. Ogolo (supra), the Supreme Court per Onnoghen, JSC had this to say:
“…I therefore, hold that the decision of the trial court refusing to set aside the judgment of 8/10/96 in default of defence, being a final decision, the present respondent does not need leave of court to appeal against it to the Court of Appeal, particularly as Section 220 (1)(a) of the 1979 Constitution [now Section 241(1)(a) of the 1999 Constitution] grants the respondent the right to appeal against that decision as of right. In other words, the respondent does not need leave of court to appeal against that decision whether the grounds of appeal are of mixed law and facts or of facts alone.” (Italics supplied).
Section 241(1)(a) of the Constitution (supra) provides as follows:
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”
In the same vein and in the instant case, the decision of the trial court made 16th January, 2013 being a final decision of the said trial court, the appellant herein does not require the leave of any court to appeal against the decision. Section 241 (1)(a) of the 1999 Constitution as amended guarantees the appellant the right to appeal as of right in the circumstance. As rightly submitted by the learned counsel for the appellant, the case of Ahamefula vs. Imperial Medical Centre (supra) and Section 242(1) of the 1999 Constitution relied upon by the learned counsel for the respondents are inapplicable here as they relate to appeals to be made with the leave of court.
Accordingly the first (i) arm of the respondents’ preliminary objection to the hearing of this appeal is hereby resolved in favour of the appellant and against the respondents.
Touching on arm two (ii) of the respondents’ preliminary objection to the hearing of this appeal, pursuant to the provision of Section 24(2)(a) of the Court of Appeal Act, 2004:
“2. The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
a) In an appeal in Civil Cause or matter, fourteen days where the appeal is against an interlocutory decision and three months Where the appeal is against a final decision.” [Emphasis supplied].
In the instant case the Notice of Appeal was filed 11th February, 2013 as opposed to 11th February, 2012 stated by the learned counsel for the respondents. This is to say that the said Notice of Appeal was filed 26 days after the ruling appealed against was delivered on 16th January, 2013. 26 days is well within the three months period allowed by Section 24(2)(a)(supra) where the appeal is against a final decision as in the ruling in view. Having been filed within time the Notice of Appeal, to that extent is competent. There is therefore no room for an application for extension of time for purportedly filing the same out of time. This second (ii) arm of the preliminary objection raised by the respondents is hereby resolved in favour of the appellant and against the respondents.
That grounds 1, 3, 4 and 5 of the Notice of Appeal are grounds of mixed law and facts and grounds of fact which require the leave of court to file the Notice of Appeal and that they are incompetent and should be struck out-here again, the pronouncement of the Supreme Court in Ogolo vs. Ogolo (supra) per Onnoghen, JSC at page 73, line 35 and page 74, line 13 need be re-echoed. They read thus:
“I therefore hold that the decision of the trial court refusing to set aside the judgment of 8/10/86 in default of defence, being a final decision, the present respondent does not need leave of court to appeal against it to the court of Appeal, particularly as Section 220 (1)(a) of the 1979 Constitution [now Section 241(1)(a) of the 1999 Constitution] grants the respondent the right to appeal against that decision as of right. In other words, the respondent does not need leave of court to appeal against that decision whether the ground(s) of appeal is (are) of mixed law and facts or of facts alone.” [Italics supplied].
It follows that though grounds 1, 3, 4 and 5 may be of mixed law and facts and or facts alone, the fact that the decision being appealed against is a final decision of the Lower Court gave the appellant, pursuant to Section 241(1)(a) of the 1999 Constitution as well as the foregoing authority of Ogolo vs. Ogolo (supra) the leverage to go on appeal without the leave of court. The Notice of Appeal is again on this ground competent. The arm of objection in this regard is resolved in favour of the appellant and against the respondents.
The respondents further in their preliminary objection contended that the appellant requires the leave of either the lower or appellate court to file this appeal as required by Order 38 Rule 10 for a person permitted to sue in forma pauperis.
Order 38 Rule 10 of the Federal High Court (Civil Procedure Rules), 2009 provides that:
“No person shall be permitted to appeal in forma pauperis, except by leave of the trial or the appellate court, and then only on grounds of law.”
The foregoing provisions notwithstanding, Section 241 (1)(a) of the 1999 Constitution as earlier stated provides that the appellant herein can appeal as of right since the appeal is against the final decision of the trial court and not minding that the grounds are of mixed law and facts and or on facts or on law alone. See further sub-section (1)(b) of Section 241 supra. The provisions of Order 38 Rule 10 cannot fly on the face of the constitutional provision of Section 241 (1)(a) and (b) of the 1999 Constitution (supra). This is for the obvious reason that in the event of any conflict between the provisions of the Constitution and any other law or statute of the land, the Constitution shall prevail and that other law shall, to the extent of the inconsistency, be void and of no effect. See Section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria as amended.
Nevertheless, the appellant sought the leave of this court and was so granted to sue as a person in forma pauperis. Besides, the appellant to my mind does not simply because he is prosecuting the appeal as a person without means, require the leave of either the trial court or of this court for his appeal to be competent. Again this arm of the respondents’ objection to the hearing of this appeal is hereby resolved against the respondents but in favour of the appellant.
That the appellant’s brief was filed out of time as required by Order 18 Rule 2 without any leave of court and therefore incompetent. See arm (v) of the respondents’ notice of preliminary objection.
From the record, the record of this appeal was transmitted to this court on 21st March, 2013 and not on 11th February, 2013 as claimed by the respondents. The appellant’s brief as earlier noted was filed on 17th April, 2013; which is 27 days after the transmission of the record of appeal to this court. By the provisions of Order 18 Rule 2 of the Court of Appeal Rules, 2011, the appellant is allowed 45 days from the date of transmission of the record within which to file his brief. Appellant herein is found to have filed his appeal 27 days after the transmission of the record of appeal. He is therefore within time in filing the appellant’s brief. Thus his brief before this court is to that extent competent.
This arm of the respondents’ objection is resolved in favour of the appellant and against the respondents.
The final objection as raised by the respondents to the hearing of this appeal is their contention that the said appellant’s brief was not prepared by a legal practitioner as required by Order 18 Rule 3(1) of the rules of this court, and so rendering same incompetent.
The said Order 18 Rule 3(1) reads thus:
3. – (1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
A look at the front cover of the Appellant’s Brief of Argument dated 16th April, 2013 and filed 17th April, 2013 shows that it was prepared and or settled by CHIEDOZIE MADUBUEGWU, ESQ. of Fashakin & Fashakin Law Chamber located at No. 44, New Hospital Road, Akure. On the other hand the Appellant’s Reply Brief dated 3rd June, 2013 and filed 4th June, 2013 bears on its cover page a prima facie proof that it was prepared and or settled by BARR. OLADAISI BUSAYO also of Fashakin & Fashakin Law Chamber situate at No. 44, New Hospital Road, Akure, Ondo. There is therefore no merit in the contention of the learned respondents’ counsel to the effect that the appellant’s briefs were not prepared by a legal practitioner as required by the rules of this court. The respondents are as a result over ruled.
In all of the above, I have found no merit in the objections raised by the learned counsel for the respondents regarding the hearing of this appeal. To this end the notice of preliminary objection as raised by the respondents therefore fails and is dismissed.
The court shall now go on to determine the merit or demerit of the appeal. Issue 1 as formulated by the appellant having already been determined I shall now go on to issue 2.
By way of recap issue 2 reads thus:
Whether the plaintiff’s action is statute barred under Section 2 (a) of the Public Officers Protection Act, 2004. [Grounds 2 and 3, pp 123-124 of the record].
On this issue, the learned counsel for the appellant submitted that in determining whether the plaintiff’s action is statute barred under Section 2(a) of the Public Officers Protection Act (POPA), 2004, that the learned trial Judge, Hon. Justice I.M. Sani cited, INEC vs. OKORONKWO (2009) All FWLR (Pt. 488) 227 and then considered paragraphs 6-15 of the plaintiff’s statement of claim but ignored paragraphs 16 and 17 and then went on to hold that:
“In the case at hand, the cause of action of the plaintiff/respondent arose in 2008 and 2009 respectively and he did not file his suit until the 4th day of August, 2011. The suit was filed outside the limitation period as provided by the Public Officers Protection Act, Cap 41 LFN 2004 and so is statute barred…..Consequently, the plaintiff’s case being statute barred is hereby dismissed accordingly.”
The appellant’s counsel while not subscribing to the foregoing findings of the learned trial Judge submitted that in resolving the issue of whether the plaintiff’s action is statute barred under Section 2(a) of POPA, 2004 three pertinent questions need be asked and they are:
1. What is meant by cause of action?
2. When is a cause of action said to have accrued?
3. How do you determine which action is statute barred?
Learned counsel cited the Supreme Court, per KALGO, JSC in P.N. UDDOH TRADING CO. LTD vs. ABERE (2001) 5 SC. (Pt.11) 72, lines 10-12 where questions 1 and 2 as posited above were answered. He also cited A.G. LAGOS STATE vs. EKO HOTELS LTD. & ANOR. (2006) 9 SC. Per ONNOGHEN, JSC at page 82, lines 19-26; MILITARY GOV. ONDO STATE & 5 ORS vs. KOLAWOLE & 4 ORS. (2008) 4 -5 SC. (Pt.11) 158 at 185, lines 22-29; AYANBOYE vs. BALOGUN (1990) 9-10 SC.1 or (1990) 5 NWLR (Pt.151) 392; and FRED EGBE vs. ADEFARASIN (1987) ANLR 1 at 21.
Consequent upon the foregoing authorities, the learned counsel for the appellant argued that by ignoring paragraphs 16 and 17 of the plaintiffs statement of claim that he did not consider the totality of the averments stated therein. According to the learned counsel and in his honest opinion, paragraph 16 of the plaintiff’s statement of claim shows the outcome of all his efforts at seeking remedy from the University Senate before going to court. It also shows that the cause of action actually accrued on 12th July, 2011 when he received the Senate Decision Extract on his request for rectification of the affected results. These statements are based on the principle laid down by the Supreme Court in the case of ABIMBOLA AKINTEMI & ORS. vs. ONWUMECHILI & ORS. (1985) 1 NSCC Vol. 16 (Pt.1) wherein IRIKEFE, JSC., in delivering the lead judgment at page 61, lines 31-37 opined thus:
“If a matter is justiciable in Nigeria, the domestic nature of the dispute does not, under the 1979 Constitution, oust the jurisdiction of the court. See Section 6(6)(b) of the 1979 Constitution [now Section 6(6)(b) of the 1999 Constitution]. It can only mean that until the remedies available in the domestic forum are exhausted, any resort to court action would be premature.” [Words in square brackets supplied].
Learned counsel went further to submit that the above ratio in Akintemi’s case has become a well established principle in determining when the cause of action accrued as far as domestic disputes within the University community is concerned. See also the cases of:
UNILORIN vs. AKINOLA (2007) 17 NWLR (PT.1064) 547. Per. Abdullahi, JCA., page 586, paras. F-G and paras. D-F; and UNILORIN vs. ADESINA (20101 9 NWLR (Pt.1199) 331 per. Agube, JCA. Page 382 -383, paras. F-H.
Appellant contended that for 8 (eight) months after graduation in September, 2010 he was frequenting the office of DVCA in connection with his complaint and the said DVCA kept telling him that the University was looking into the matter. It was only on the 12th of July, 2011 that he received the Senate Decision Extract (Exhibit l) informing him that his claims were frivolous and as such his result could not be rectified. Against this background their time actually started to run from the 12th of July, 2011.
Now, moving on to the 3rd question which is how to determine which action is statute barred, the learned counsel for the appellant referred to the case of EGBE vs. ADEFARASIN (1987) 1 NWLR (pt.47) 1 at pages 3-4 where OPUTA, JSC. had this to say:
“(8) A cause of action is thus said to be statute barred if in respect of it proceedings cannot be brought because the period laid down by the limitation law had elapsed.
(9) How does one determine the period of limitation? The answer is simple by looking at the writ at 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 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.”
Appellant’s counsel was quick to emphasize that by virtue of the act complained of, that Section 2(a) of POPA, 2004 is not applicable to this case. He argued that the defendants/respondents are not entitled to the protection under this law for 3 main reasons:
That their negligence, breach of duty and consequent breach of the appellant’s fundamental human rights as guaranteed in Sections 34 (1)(a), (b) and 35 (1) of the 1999 Constitution could not have been done in pursuance or lawful execution of their public duties as required by Section 2(a) of POPA, 2004. Counsel placed reliance on the authority of IGP. Vs. OLATUNJI (1955) 21 NLR 52, where the Supreme Court per. Ademola, JSC., held that:
“A public officer, to claim protection of the Public Officers Protection Ordinance, must have done the act complained of in good faith and in execution of his public duty.”
His lordship went on to observe that:
“It is clear that an act alleged to be done in execution of public duty is not protected unless the defendant honestly intends to act in execution of such public duty. [see Scamell and Nephew Ltd. vs. Hurley (1929) 1 K.B. 419].”
Also in IBRAHIM vs. J.S.C. KADUNA (1998) 14 NWLR (Pt.584) 1, 6-7, per. Iguh J.S.C., the Supreme Court held that:
“For Section 2(a) of the Public officers (Protection) Law to avail any person, two conditions must be fulfilled namely:
i. It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law.
ii. The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any taw, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority. [Ekeogu vs. Aliri (1990) 1 NWLR (Pt.126) 345; Nwankwere vs. Adewunmi (1967) NMLR 45; and Atiyaye vs. Perm. Sec., Min. of Loc. Govt., Borno State (1990) 1 NWLR (Pt.129) 728 referred to].
Consequent upon the above the counsel opined that the defendants/respondents’ act was not done in pursuance or lawful executive of their public duties but for some improper motives.
On the 2nd reason the learned counsel for the appellant submitted that the defendants’ act in this case is an abuse of their statutory authority because they acted maliciously under the guise that they were working to rectify the affected results for 8 months (from convocation in November 2010 to 12th July, 2011), at the end of which nothing positive was done. This according to counsel is entirely outside statutory justification.
Counsel referred to Black’s Law Dictionary, 8th edition at page 976 for the definition of the word “malice”. He opined that from their averments in the statement of claim and affidavit evidence that it is very clear that the respondents not only acted wrongly by disregarding the statutory duty owed to the appellant but also disregarded and breached his fundamental human rights as guaranteed in Sections 34 (1)(a) and (b) and 35 (1) of the 1999 Constitution and in this way they acted maliciously.
To buttress his points, learned counsel for the appellant further adumbrated the ratio in Nwankwere vs. Adewunmi (supra) while relying on EGBE vs. AIHAJI & ORS. (1990) 1 NSCC Vol. 21 (Pt.1) 316; MORGAN vs. PALMER (1824) 107 E.R. 54; S. PEARSON and SONS LTD. Vs. LORD MAYOR etc. DUBLIN (1907) A.C. 351, H. L. (P.C.); and OFFOBOCHE vs. OGOJA L.G. (2001) 7 S.C. (Pt.11) 114.
It was on the strength of the above authorities that the counsel contended that the respondents cannot take refuge under Section 2(a) of POPA, 2004 having abused their statutory authority by acting maliciously.
On the 3rd reason the learned counsel for the appellant submitted that the defendants act in this case is a breach of the statutory contract that exists between the University and its students. To further drive home their case he referred to the case of TSOKWA OIL MARKETING vs. BANK OF THE NORTH LTD. (2002) 5 S.C. (Pt.11) where Onu, JSC, at page 26, lines 26-30 pronounced that:
“It must be remembered that for a contract to come into being in law, there must have been a definite offer by the offeror and a definite acceptance by the offeree. See Ajayi Obe vs. Executive Secretary (1975) 3 S.C. 1 at 6-7.”
Given the authority of UNICAL vs. UGOCHUKWU (No.2) (2007) 17 NWIR (Pt.1063) 248, 267, counsel for the appellant argued that the offer of admission by the University and the acceptance of that offer of admission by students, with the payment of total university fees such as admission acceptance fee, tuition fee, medical fee, accommodation fee etc. created a binding contract, not an employment contract but a statutory contract with statutory obligations/duties which the defendants/respondents breached in this case. He pushed further that Section 2(a) of POPA does not apply to breaches of contract. He relied on the case of OSUN STATE GOVT. vs. DALAMI (NIG.) LTD. (2007) 9 NWLR (Pt.1038) 66, where the apex court observed that:
“Section 2(a) of the Public Officers Protection Act does not apply to cases of contract. It does not apply in cases of recovery of land, breaches of contract or claims for work arid labour done etc…See Salako vs. LEDB (1953) 20 NLR 169; and NPA vs. Construzioni Generali Fasura Cogefor SPA (1974) 1 All NLR (Pt.2) 463; and Bankole vs. NBL (1969) NCLR 385 at 390.”
Upon all of the above the learned counsel for the appellant reiterated that this action is not statute barred because it was commenced on 4th August, 2011 which is 23 days after the cause of action accrued on 12th July, 2011; that the respondents are not entitled to protection under Section 2(a) of POPA, 2004 for the three reasons stated above; and that the ruling of the Lower Court on 16th January, 2013 was a judgment per incuriam. That it has occasioned a miscarriage of justice in this case and by virtue of Section 294(5) of the 1999 Constitution of the Federal Republic of Nigeria.
Counsel urged on us to set aside the decision of the Lower Court.
The learned counsel for the respondents formed a related issue which reads:
Whether or not the learned judge was right when he held that the appellant action was statute barred. [See issue 1 as formulated under paragraph 4.00 of the respondents’ brief of argument].
In his submission thereon, and relying on the provisions of Section 2(a) of the Public Officer Protection Act Cap P41 LFN, as well as the case of OKOH vs. THE NIGERIAN NAVY (2007) 25 WRN 46,63, the learned counsel for the respondents stated that the learned trial judge was right when he held that the appellant’s action was statute barred.
Counsel contended that the cause of action which the appellant appealed against accrued in 2008. The appellant’s grief is in relation to courses: MEE 202, MEE 307, MEE 308, MEE 3O1, MEE 305, MEE 309, MEE 311, MEE 302, EEE 352 and MEE 312 which he took during the 2006 /2007 and 2007 /2008 academic sessions, while his writ of summons was filed in 2011.
Respondents have argued that where the law provides for the bringing of action within a prescribed period in respect of a course of action accruing to the plaintiff, proceeding shall not be brought after the time prescribed by the statute. They relied on the authority of EGBE vs. ADEFARASIN (2002) 14 WRN 57 at 93, line 45 where Karibi-Whyte, JSC., had this to say:
“An action brought outside the prescribed period offends against the provision of the section and does not give rise to a cause of action”.
To this end the learned counsel for the respondents concluded that the decision of his lordship, Hon. Justice I.M. Sani cannot be faulted when he concluded that the appellant’s action is statute barred and that the suit was filed outside the limitation period as provided by the Public Officers Protection Act, Cap P.41, LFN 2004. Counsel urged on us to resolve this issue in favour of the respondents.
RESOLUTION OF THE ISSUE OF WHETHER THE PLAINTIFF’S ACTION IS STATUTE BARRED UNDER SECTION 2(a) OF THE PUBLIC OFFICERS PROTECTION ACT 2004.
In dealing with this issue I find it pertinent to bring into focus the three questions raised for consideration by the learned counsel for the appellant at paragraph 4.2 of the appellant’s brief of argument. They are:
1. What is meant by a cause of action?
2. When is a cause of action said to have accrued?
3. How do you determine which action is statute barred?
In answer to questions 1 and 2 as they appear above, the apex court, per KALGO, JSC., in the case of P.N. UDDOH TRADING co. LTD. vs. ABERE (SUPRA) at page 72, lines 10-12 had this to say:
“What then is the cause of action and when does it arise? Cause of action has been defined by courts to mean a combination of facts and circumstances giving rise to the right to file a claim in court for remedy. It includes all those things which are necessary to give a right of action and every material fact which has to be proved to entitle the plaintiff to succeed. See Patkun Ind. Ltd. vs. Niger Shoes Ltd. (1988) 12 SC. (Pt.11) 1 or (1988) 5 NWLR (Pt.93] 138; Ibrahim vs. Osim (1987) 4 NWLR (Pt.67] 965; and Bello vs. A-G Oyo State (1986) 5 NWLR (Pt.45) 828. The cause of action arises as soon as the combination of the circumstances mentioned above accrued or happened and it is the act on the part of the defendant which gives the plaintiff his cause of complaint.” [Emphasis mine].
It seems to me that in determining when a cause of action has accrued that the intending plaintiff shall have surveyed and or availed himself of all the facts that would support his claim if eventually the matter goes to court. This is a situation which to my mind calls for the plugging of all possible loopholes in the facts leading to the case of the plaintiff.
In Military Gov. Ondo State & 5 Ors vs. Kolawole & 4 Ors. (supra), TABAI, JSC., at page 185, lines 22-29 stated thus:
“It is settled law that it is the totality of the averments in the statement of claim that determines the accrual of cause of action…”
When the averments in the statement of claim has been considered as a whole, it is then that the trial court will be in the right frame to determine if a cause of action has actually accrued to the plaintiff or not. In the instant appeal I am moved to reproduce paragraphs 6, 14 and 16 of the appellant’s statement of claim as I find them germane in determining when the cause of action accrued to him if at all. They read:
5 ……………………………
6. The plaintiff further stated that at the end of the second semester 200 level, when his results were pasted by the defendants, that he wrote a complaint letter to the following persons for correction of his result:
a. The course lecturer, letter dated 29/2/2008.
b. The Head of the Department (HOD) Mechanical Engineering, dated 5/3/2008.
14. …………….
15. The plaintiff avers that after the final exams, he applied for statement of result to the Registrar dated 04/10/2010 which was replied with the publication of notification of result dated 25/10/2010.
16…………
17. Plaintiff avers that the 2nd defendant (Registrar) replied to his second letter in paragraph 14 b, date 17/12/2010 by the publication of the result dated 12/07/2011. [The plaintiff pleads and shall at the trial of this suit rely on the said letter and result]
18. ………..”
Now despite the mix up of facts, figures and apparent on the face of the appellant’s statement of claim, I am still able to make out of the averments therein, that it was the respondents’ publication dated 12th July, 2011 that drove home the futility of his seeking an internal or domestic resolution of his cause. Paragraph 16 indeed bears the outcome and culmination of the efforts made by the appellant to have his grievance sorted out internally. In the matter of ABIMBOLA AKINTEMI vs ONWUMECHILI (SUPRA), the supreme court, per IRIKEFE, JSC., at page 61. Lines 31-37 opined that:
“If a matter is Justiciable in Nigeria, the domestic nature of the dispute does not, under the 1979 Constitution, oust the jurisdiction of the court. See Section 6(6)(b) of the 1979 Constitution [now Section 6(6)(b) of the 1999 Constitution]. It can only mean that until the remedies available in the domestic forum are exhausted, any resort to court action would be premature.” [Emphasis mine].[italics supplied].
The ratio decidendi in Akintemi (supra), being a well determined principle as to when a cause action accrued as far as domestic disputes such as the case at hand is concerned was followed subsequently by this court in the cases of:
i. UNILORIN vs. AKINOLA (2007) 17 NWLR (pt.1064) 568 at 587;
ii. UNILORIN vs. ADESINA (2010) 9 NWLR (Pt.1199] 331 at 383 paras. F-H.
As is expected of every reasonable student and I believe so of the appellant, he took the first sensible action which was to make his petitions or grievances known to the relevant authorities. To my mind, it was not until the 12th of July, 2011 when the appellant received that letter from the office of the Registrar captioned [SENATE DECISION EXTRACT: REQUEST FOR RECTIFICATION OF RESULT: ADEBAYO V. A. (MEE/05/5405)], did the cause of action accrue for him. The tone and content of the letter made it obvious that the respondents were done with the said appellant and his complaint. Indeed all the facts and circumstances that were to give rise to the appellant’s cause of action came to a head on the day he got the result notification from the Registrar of the respondents’ institution. Having exhausted every internal remedial approach he was faced with nothing else but a brick wall. That was the day the cause of action accrued in the circumstances of this case.
By the applicable rules the appellant had a period of three months from that 12th of July, 2011 to seek redress in the regular court. Being that the originating process which was the appellant’s writ of summons was issued 4th August, 2011, it follows that the action was commenced within the three months period limited for it by Section 2(a) of the Public officer protection Act Cap P. 41 LFN.
See the case of OKOH vs. THE NIGERIAN NAVY (2007) 25 WRN 46 at p.63 lines 10-25 as per Adekeye JCA thus:
“The Public Officers Protection Law is a limitation law and the substance of its Section 2(a) is that where any action, prosecution, or proceeding is commenced against any person for an act done in pursuance or execution of any law or of any public duty or authority in respect of any alleged neglect or default in the execution of any such law, duty or authority the action, prosecution or proceeding shall not lie or be instituted unless it is commenced with three months of the act, neglect or default complained of or in the case of continuing damage or injury within three months next after the ceasing therefore.” (Underlining mine).
As noted it was on the receipt on 12th July, 2011 of that copy of Senate Decision Extract from the respondents, that the appellant’s cause of action against the body arose. Consequently, my finding regarding issue two as formulated by the learned appellant’s counsel ought to be and is indeed resolved in favour of the appellant and against the respondents.
The final issue which is issue three reads:
Whether the plaintiff deserves the award of B.Eng. Mechanical Engineering (Second Class Upper Division) as degree certificate by the defendants considering the weight of evidence established at the trial.
(Grounds 4 and 5).
In trying to make a case under this issue the appellant had gone on to paint a gloomy picture of threat and harassment against him by the respondents whilst he was a student of the respondents’ institution. After going through some unnecessary academic exercise, the learned counsel for the appellant came up with the submission that the learned trial Judge failed to properly evaluate the totality of the averments in the statement of claim, the affidavit evidence, the exhibits attached, the secondary evidence adduced at the trial and the admissions of the defendants (respondents) by virtue of Order 13 Rule 9. He said that this is an exceptional circumstance in which this court ought to intervene and declare that the appellant deserves the award of B.Eng. Mechanical Engineering (2nd Class Upper Division as degree certificate.
Now, going by the authorities of:
ADOMBA & ORS. VS. ODIESE & ORS. (1990) NSCC Vol. 21 (PT.1) 129 the Supreme Court held that:
8. It is the duty of the Court of Appeal to rehear a case and to that intent, reconsider the materials before a trial judge as long as it is not a matter that depends on the credibility of witnesses, then the Court of Appeal, can in the instant case, reach its own judgment.
9. Where the trial Judge failed to resolve issues of fact, it will be a clear ground of appeal, which will entitle an appellate court, ….to intervene.”
See also ABISI VS. EKWEALOR (1993) 6 NWLR (PT.302) 649, 673-674; NARUMAL & SONS LTD. VS. NIGER BENUE TRANSPORT COMPANY LTD (1989) 2 NWLR (PT.106) 730, 742; WOLUCHEM VS. GUDI (1981) NSCC VOL. 12, 214 amongst others.
Upon the foregoing authorities, the learned counsel for the appellant urged on us to step in to remedy the situation at hand. Counsel emphasized that an order of retrial is NOT necessary in this case because as it has been shown in issue 3 above, there are no material issues of fact requiring a retrial for their resolution. To the counsel, the matter in dispute has been narrowed down to inferences that could be drawn from the material facts and evidence presented. Leaning on the authority of MAFIMISEBI VS. EHUWA (2007) 2 NWLR (PT.1018) 285 learned counsel underscored factors why retrial cannot be ordered in this instance. The said factors are:
a) Where the plaintiff has established his case by raising the probabilities in his favour; or
b) ……………………..
c) The litigation will be unnecessarily prolonged; or
d) ………………………
e) ………………………
Finally in his contention, the learned counsel for the appellant submitted that since the University results are computed as cumulative grade point averages (CGPAs), these low scores were responsible for the CGPA of 3.36 (Second Class Lower division) awarded to the appellant by the respondents whereas it should have been Second class Upper division, based on the appellant’s actual performance in those courses. He urged on us to resolve issue 3 in favour of the appellant and specifically direct the respondents to:
1. Issue to the plaintiff/appellant the degree certificate of SECOND CLASS UPPER DIVISION (reflecting his actual performance in the affected 10 courses) along with his transcripts within 7 days.
2. Pay to the plaintiff/appellant the sum of N9,900,000 as damages. [special damages in the sum of N4,800,000 for 32 months from October, 2010-May 2013 at the rate of N150,000 per month as lost earnings and continuing until judgment is delivered; General damages to the tune of N5,000,000 for the frustrations, mental/psychological disturbance and emotional pains the plaintiff was subjected to for 5 years since 2007 until 2011 in this ordeal, the violation of the plaintiff’s fundamental human rights, the lost opportunities for several International Post Graduate scholarships worth more than N4 million (that the plaintiff could have benefitted from had he gotten his actual result) and my health compensation; Punitive Damages of N100,000 for all the physical assaults suffered from graduation till date].”
Appellant finally asked the court to do justice to this case by granting accelerated hearing of same.
RESOLUTION OF ISSUE 3 AS FORMULATED BY THE APELLANT
What the appellant has asked of this court in their issue 3 is to consider the weight of evidence put forward at the trial and thus declare that he deserves the award of B.Eng. Mechanical Engineering (Second Class Upper division) as degree certificate as opposed to the (Second Class Lower Division) awarded him by the respondents.
From all indications and given the materials before this court, it is clear that the appellant at no time gave evidence before the trial court. As rightly pointed out by the learned counsel for the respondents, the argument proffered by the appellant under issue 3 above is to the facts contained in his statement of claim without more. At no time did the appellant lead any evidence in proof of those facts. Pointing to this finding of fact is the pronouncement of the learned trial Judge in his said ruling delivered 16th January, 2013 to wit:
“Having examined the above processes, I have the view that if the Motion on Notice filed by the Defendants/Applicants are determined on the strength of the materials placed before the court, the court may appear to be subtly invited to determine substantive issues at interlocutory stage. It is settled that courts must avoid making pronouncement that may have the effect of determining substantive issue before the court at interlocutory stage. See Akapo vs. Hakeem Habeeb (1992) 6 NWLR (Pt.247) 266; and United Spinner Ltd. Vs. Chartered Bank Nig. Ltd. (2001) All FWLR (Pt.66) 640.” [See page 110, lines 6-13 of the record].
Undoubtedly courts are forbidden from going into and determining substantive claim before it at the interlocutory stage.
It was based on the Motion on Notice dated 2nd September, 2011 and argued before the trial court, that the said court held (though wrongly) that the substantive action filed by the plaintiff/appellant was statute barred. As a result of the finding, the trial court dismissed the main suit. The plaintiff/appellant as rightly found by the trial court, reacted to the Motion in the process he inelegantly captioned “PLAINTIFF’S DEFENSE TO DEFENDANTS COUNTER-CLAIMS IN MOTION ON NOTICE”. Plaintiff/appellant attached several documents to his said process. The instant appeal before us is consequent upon the ruling on the Motion on Notice of Objection initiated by the respondents wherein they sought for an order dismissing the appellant’s substantive action itself for being statute barred and which ruling was delivered 16th January, 2013. In this event neither of the parties gave evidence in proof of the substantive action before the trial Federal High Court. This is to say that the facts as averred in the pleadings particularly in the appellant’s statement of claim were not proved before the trial court. As a result he cannot rely only on the facts as contained in his statement of claim nor the averments in his reply motion as evidence to be used by this court to grant relief 3 in his favour. Pleadings cannot constitute and do not tantamount to evidence. In the case of OBMIAMI BRICK & STONE (NIG.) LTD vs. A.C.B. LTD. (1992) 3 NWLR (Pt.229) 260 at 293 para. H which was aptly cited by the learned counsel for the respondents, it was held that:
‘There cannot be a better notice of the case a party intends to make than his pleadings, it is a notice and can never be a substitute required in proof of the facts pleaded.”
See also I.B.W.A. vs. IMANO (2001) 17 WRN 1, 24 line 30 and ADAKE vs. AKUN (2003) FWLR (Pt.176) 625, 633 paras. C-D.
Since we have only the parties’ pleadings, with no evidence in proof of the facts, this court lacks the leverage to grant the relief sought by the appellant under issue 3 i.e. “An Order directing defendants/respondents to issue to the plaintiff the degree certificate of SECOND CLASS UPPER DIVISION (reflecting his actual performance in the affected courses) along with his transcripts WITHIN 7 DAYS.” [Emphasis supplied]. We cannot use the affidavit evidence relied upon by the appellant which he apparently filed in reaction to the respondents’ notice of preliminary objection to be a proof of the substantive action. Therefore, with no evidence led in proof of the substantive action by the plaintiff/appellant before the trial court, there is virtually no material on which this court can fall on and evaluate in order to grant a declaratory relief as the one sought for by the appellant.
It also follows that we do not have the basis to make any award of damages as sought for by the appellant.
In view of all that I have said above, issue 3 as formulated by the appellant is hereby resolved against the said appellant but in favour of the respondents.
In conclusion the appeal succeeds in part and fails in the main. Since the appellant’s claim as contained in the suit filed by him are yet to be determined, the said suit ought to be sent back for hearing and determination. To this end we order that the suit nos. FHC/AK/CS/56/2011 BETWEEN: MR. ADEBAYO AFOLABI VICTOR AND FEDERAL UNIVERSITY OF TECHNOLOGY, AKURE & THE REGISTRAR, FEDERAL UNIVERSITY OF TECHNOLOGY, AKURE, be and is hereby transmitted to the Chief Judge of the Federal High Court to re-assign same to another Judge of the Court to hear and determine on merit.
SOTONYE DENTON WEST, J.C.A.: The facts and the law in this appeal have been exhaustively dealt with in the judgment of my learned brother, Jombo-Ofo, JCA, and which I am in entire agreement that I need no expatiation thereof. I consider only the issue of whether the court (trial court) lacks jurisdiction to entertain this matter having held that it is statute barred in line with the Public officer’s protection Act (POPA) 2004.
There is usually a limitation law in many countries which requires that a law suit must be commenced within a specific period from which the injury or omission, causing the damage or loss, arose or occurred. In Nigeria, the Limitation Law is extant.
Essentially, the Limitation Law ensures that all claims are diligently and promptly presented while the evidence in support of the claim, or the defence to a claim, is/are still available and the witness(es) memory is/are still fresh. A further essence for the Limitation Law is to guarantee finality in litigation.
Therefore the consequence of not commencing a law suit or judicial proceeding within the period limited for bringing the law suit is that a law suit or claim will be extinguished after the time limitation periods varies dependent on the kind of legal actions.
Herein lies the question, how to determine when a case is statute barred. To ascertain if the appellant/plaintiff brought his action within the stipulated time one needs to take cognizance of when the cause of action accrue. In Egbe vs. Adefarasin (1987) 1 NWLR (Pt.47) 1, cause of action is referred to as the factual situation giving rise to the claim. Also in Bello vs. Attorney-General of Oyo State (1986) 5 NWLR (Pt.45) 828 @ 876 “such factual claim must be recognized by the law as giving rise to a substantive right capable of being claimed against the defendant.”
Stemming from these, the question now arises as to when can it be said that the substantive right of the appellant which is capable of being claimed against the defendant had accrued. The learned trial judge in my opinion was quick to agree that the cause of action with respect to the appellant’s result in the affected causes accrued in 2008 and 2009 sessions and that the plaintiff did not file his suit until 4-08-11. I respectfully disagree, because indeed the appellant can be said to have started suffering the alleged injury at about that time, but it would have been premature to take an action in court without due recourse to the University’s internal mechanism. And it was the ultimate.
According to the Black’s Law Dictionary, 8th Edition, by Bryan A. Garner (Editor-in-Chief), “the term ‘accrue’ in the cause of action means to arrive, to commence, to come into existence, or to become a present enforceable demand or right. The time of accrual of a cause of action is a question of fact.”
By this definition, it can be deduced that the alleged: injury inflicted upon the appellant reached its apex when the response from the senate via a letter dated 12th July, 2011 proved unsatisfactory to the appellant necessitating this action via a writ of summons dated 4th day of August, 2011. I hereby abide by all the consequential orders made in the lead judgment of my learned brother Jombo-Ofo, JCA.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother Ifeoma Jombo-Ofo, JCA. I agree with the reasoning and conclusion. I also abide with the consequential orders.
Appearances
Appellant represented himself having sue in forma pauperisFor Appellant
AND
G. O. Omoedu Esq.For Respondent
