MR. PIUS OKAN & ANOR v. OREDO LOCAL GOVERNMENT COUNCIL & ORS.
(2011)LCN/4450(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of April, 2011
CA/B/59/2006
RATIO
STATUTE BARRED: WHAT WILL BE CONSIDERED IN DETERMINING WHETHER AN ACTION IS STATUTE-BARRED OR NOT
It is the Writ of Summons and the Statement of Claim that will be looked at as to the date the cause of action accrued and comparing it with the date an action relating to it is filed to determine whether or not such an action is statute-barred. See YAKUBU V. NITEL LTD (2006) 9 NWLR (Pt.985) 391 AT 392. PER CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU IHEME Justice of The Court of Appeal of Nigeria
Between
1. MR. PIUS OKAN
2. CONOIL NIGERIA LTD Appellant(s)
AND
1. OREDO LOCAL GOVERNMENT COUNCIL
2. HON. VICTOR EDOS EBOWONYI
3. HON. (EVANGELIST) EMY EKE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A. (Delivering the Leading Judgment): By a Writ of Summons taken out on 3/5/05, the Appellants as Plaintiffs at the High Court Benin, instituted an action against the Respondents as Defendants and crystallised their claims in paragraph 13 of their Statement of Claim in the following terms:
“13
(i) A DECLARATION that the Defendants have no right to approve the premises of the Plaintiff for the use of a private Motor Park.
(ii) A DECLARATION that the purported letter dated 29/3/03 is null and void and constitutes an infringement on the right of the Plaintiff acquire property guaranteed under the 1999 Constitution.
(iii) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their Agents, Servants and Privies from further approving the premises of the Plaintiff for the use of a Private Motor Park or directing anyone to use same as a Private Motor Park.
(iv) THE SUM OF N10,000,000,000.00 (Ten Billion Naira) for the untold hardship inflicted on the Plaintiffs by the implementation of the approval of the said Motor Park as the Plaintiffs have lost huge revenue due to the Plaintiffs and the harassment and embarrassment suffered by the Plaintiffs.
(v) AN ORDER setting aside the purported letter of approval issued by the Defendants as same is unconstitutional and constitute illegality.
Upon service on them of the Appellants’ Statement of Claim, the Respondents entered appearance and filed their Statement of Defence wherein in paragraph 11 they pleaded that the action was statute-barred having been commenced outside the prescribed statutory period. Subsequently by Motion on Notice dated 1/7/05, the Respondents challenged the competence of the action on the same ground as was raised in the aforesaid paragraph 1 of their Statement of Defence. The learned trial Judge, Idahosa J, as he then was, took arguments on the motion and in a considered ruling delivered on 15/11/05 upheld the objection and struck out the action. The present appeal is against that ruling.
Three Grounds of Appeal were filed which, without their particulars, read:
“1. The learned trial Judge erred in law when he held that the 2nd and 3d Respondents are Public Officers only because the Appellants described them as the Executive Chairman and Secretary respectively of the 1st Respondent.
2. The learned trial judge erred in law when he held that the 2nd and 3rd Respondents were Public Officers because the Appellant made the averment making them out as Public Officers hence the action was held to be statute barred.
3. The learned trial Judge erred in law when he held that the Appellants cause of action is statute-barred, the cause of action having arisen on the 29/03/03 and the Writ of Summons filed on 03/05/05.”
and from which the Appellants in their brief, formulated two issues for determination namely:
“(1) Whether the learned trial Judge was right when he held that the 2nd and 3rd Defendants were Public Officers within the meaning of the 1999 Constitution on the mere ground that the Appellants described them as Executive Chairman and Secretary of the Local Government Council respectively in their Statement of Claim.
(2) Having regard to the to law of evidence on record whether the learned trial Judge was right when he held that the case of the Appellants against the Respondents was statute-barred.”
The Respondents on their own part, formulated three issues in their brief for determination in the following terms:
‘(a) Whether there is a time limit for instituting action against a Local Government Council in Edo State and whether limitation can be raised in limine.
(b) Whether the learned trial Judge was right in holding as he did that the 2nd and 3rd Defendants are Public Officers?
(c) Whether having regard to the material before the court, the learned trial Judge was right in dismissing the case of the Appellant as being statute-barred?”
The third issue formulated by the Respondents in their brief appears to me to encapsulate the main issue in this appeal as it covers every other issue raised by the parties in the appeal. I shall, therefore, proceed to deal with this appeal on the basis of that issue which is all encompassing and all embracing.
Learned counsel for the Appellants, Mr. Afolabi, both in his Brief of Argument and Reply Brief had argued, in summary, that the 2nd and 3rd Respondents were not Public Officers within the contemplation of the Public Officers Protection Law of Bendel State applicable to Edo State as there was no evidence that they were employed by the Local Government service Commission in line with the principle of the decision in DADA V. ADEYEYE (2@5) 6 NWLR. (pt.920) pg. 1 at 23 and MOMOH V. OKEWALE (1977) 6 S.C. 81.
Learned counsel contended that the mere description of the 2nd and 3rd Respondents as Chairman and Secretary respectively in the Appellants, pleading did not cloth them with the toga of public officers as pleading did not, in law, amount to evidence. He then submitted on this score that it was only Public Officer that were protected under Section 2 of the Public officer Protection Law of Bendel state applicable to Edo state Even at that, learned counsel further submitted, the case in hand was one of a continuing injury or damage which brought the action well within the statutory period for the institution of the action since by Section 2 (a) of the law the action could be brought within three months of the cessation of the injury complained of.
On the effect of section 151 of the OREDO LOCAL GOVERNMENT LAW 2004, counsel contended that the provision therein that in the case of continuance of damage or injury an action was to be brought within six months of its cessation also saved the action brought by the Appellants.
In his reply, the Respondents’ counsel, Mr. Igbineweka, in his brief, contended that by virtue of Section 151 of the Edo State Local Government Law 2000 the action of the Appellants in the instant case ought to be commenced within six months of the cause of action which accrued on 29/3/03 and that since the action was not filed until 3/5/05, a period of 24 months, the action was statute-barred. He argued that in determining whether an action is caught by statute of limitation regard must be had to the time when the cause of action accrued and the time the action was filed. This apart, the 2nd and 3rd Respondents’ counsel argued, were Public Officers by virtue of item 13
of Part 11 of the 5th Schedule to the 1999 Constitution and therefore protected under Section 2 of the Public Officers Protection Law of Bendel State. In any event, it was argued, since the 1st Respondent on the Supreme Court decision in OFFOBOCHE V. OGOJA LOCAL GOVERNMENT (2001) 7 SCNJ, 462 at 486 – 487, as an institution is protected by Section 2(a) of the Public Officers Protection Law, 2nd and 3rd Respondents as its agents were also protected.
Counsel then concluded that on the materials before the lower court the action was statute barred and the learned trial judge was right in striking out same.
In my view, the issue in this appeal, is simple, straight-forward and falls within a narrow compass. The 3rd issue identified by the Respondents’ counsel which I had earlier accepted as encompassing over all other issues raised in this appeal, in other words,: Whether or not the action of the Appellants against the Respondents in the lower court is maintainable in law in the circumstances of the case having regard to the relevant statute of limitation.
It is clear from the claims of the Appellants both in their Writ of Summons and their Statement of Claim as already set out earlier in this judgment that the target of the action is the 1st Respondent whose letter of 29/31O3 was the subject and cause of the action. That letter was pleaded in paragraph 9 of the Appellants’ Statement of Claim and exhibited to the counter-affidavit of the Appellants in opposition to the motion of the Respondents to dismiss the action, the ruling upon which has grounded this appeal. It is at page 22 of the Record of Appeal and reads:
OREDO LOCAL GOVERNMENT
P.M.B. 1052
KING’S SQUARE
BENIN CITY
EDO STATE OF NIGERIA
Ref: …….. 29th March, 2003
Ref No. ABC.835/8
The Managing Director
Osagioduwa Iyomahan Motors
National Filling Station at
Lagos Street Junction,
By Ring Road
Benin City.
PROVISIONAL APPROVAL TO OPERATE A PRIVATE MOTOR PARK
I am directed to refer to your application, dated 17th December, 2003 on the above subject and to inform you that Council has approved tentatively for you to use the National Filling Station at Lagos Street Junction by Ring Road, Benin City, as a Private Motor Park.
2. Accordingly, you are advised to ensure that you abide by the relevant Bye-Laws governing the establishment, management and operation of Private Motor Parks in the state. Besides you are expected to pay an annual registration fee of N50,000.00 (Fifty thousand Naira Only) to Account No.0130323158200. Your routes are Benin-Auchi, Benin – Onitsha
3. In addition you are expected pay the prevailing fees of N250.00 per bus daily or as may be determined from time to time by the Council. You will be required to make weekly payment of N5,000.00 (Five thousand Naira only) preferably on Mondays to Account No.0130323158200 with Continental Trust Bank PLC, along Akpakpava Road, thereafter, submit your teller to Treasurer to Oredo Local Government Benin City. You are further advised to ensure that no touting activities are allowed into/within the premises for the purpose of touting as such and/or any other act may lead to immediate withdrawal of this approval and the resultant closure of the park.
4. You should note that the Local Government will not he held liable for any risk damage that may arise form the use of the aforementioned premises or your operations in general.
5. Accept my congratulations.
Omoruyi-Ero
Head of Service
For: Chairman,
Oredo Local Government
Benin City
The content and tenor of the above letter is a conveyance of the approval given by the 1st Respondent to the Managing Director of Osagioduwa Iyomahan Motors to operate a Private Motor Park at the Appellants’ filling station. It was signed by one Omoruyi Ero, said to be the Head of Service of 1st Respondent for Chairman of 1st Respondent. Neither the name of the 2nd Respondent nor that of the 3rd Respondent appeared on that letter. One therefore wonders why the 2nd and 3rd Respondents became involved in the matter so as to be sued. In paragraph 4 of the Appellants’ Statement of Claim the 2nd and 3rd Respondents were therein described as Executive Chairman and Secretary of 1st Defendant but the letter the subject of the action was not signed by any of them either in such capacities or at all. As I said it was signed by one Omoruyi-Ero as Head of Service. The said Omoruyi-Ero is not made a party to the action.
ln the face of the letter under reference, the question that arises is:
On what conduct of the 2nd and 3rd Respondents is the action against them anchored? The answer, from the foregoing facts, is obvious. It is none. So all the arguments of counsel for both parties at the lower court and in this court about whether or not 2nd and 3rd Respondents were Public Officers become irrelevant, inapplicable and therefore non sequitur.
In paragraphs 6 and 7 of the Appellants’ Statement of Claim, the Appellants averred that sometime in 2003, OSAGIODUWA IYOMAHAN MOTORS commenced business on their premises without their consent and that all attempts made to get one MR. OSAGIODUWA IYOHANHAN to remove his illegal park from the premises failed. But again, neither the said OSAGIODUWA IYOHANHAN MOTORS nor MR. OSAGIODUWA IYOHANHAN was made part of the action to ground a complaint for their presence or continued presence on the land. In my view this scenario analysed above leaves the action squarely on the door steps of the 1″ Respondent in the light of its letter of 29/3/03 under reference.
This fact then brings into play the operative effect of Section 151 of the Edo state Local Government Law 2000 which is in pari materia with section 151 of the Oredo Local Government Law 2004. Both Sections provide:
“When any suit is commenced against any local Government for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, such suit shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of ..”
Now under and by virtue of Section 7 of the Constitution of 1999 as amended and paragraph 1 (e) of the 4th Schedule to that Constitution the power, duty or authority to establish Motor parks is vested in the Local Governments including the 1st Respondent. Therefore, the letter of 29/3/03 under reference was one by which the 1st Respondent acted in pursuance or execution of the law or public duty. If the 1st Respondent has defaulted in the course of this execution, the action against it for this default must be commenced within the six month period prescribed by the said Section 151 .
See MORO LOCAL GOVERNMENT KWARA STATE V. SOYEBIYI (2006) 10 NWIR (Pt.988) 323 at 336.
It is the Writ of Summons and the Statement of Claim that will be looked at as to the date the cause of action accrued and comparing it with the date an action relating to it is filed to determine whether or not such an action is statute-barred.
See YAKUBU V. NITEL LTD (2006) 9 NWLR (Pt.985) 391 AT 392. Now the letter by which 1st Respondent granted approval for the operation of a Private Motor Park on the premises of the Appellants (which letter had already been reproduced elsewhere in this Judgment) was dated 29/3/03 as contained therein and pleaded in paragraph 9 of the Statement of Claim. Although it was not pleaded when the letter was delivered or the date when the Appellants knew of the letter, paragraph 6 of the Statement of Claim discloses that Appellant knew of the existence of the Motor Park in the same 2003 when the letter was issued. Paragraph 10 of the Statement of Claim also shows that at least on or before 6/8/04, the Appellants had become aware of the letter dated 29/3/03. So if the calculation as to when the cause of action arose was made from 29/3/03, the six months prescribed expired by 28/9/03. On the other hand, if the calculation was made from 6/8/04, the six month period expired on 5/2/05.
By the Writ of Summons taken out in this case, the action was commenced on 3/5/05. Therefore by the first calculation from 29/3/03 the action was commenced more than two years after the cause of action arose. And by the second calculation from 6/8/04, the action was commenced more than eight months after the cause of action arose. So in either case and using either of the dates (i.e. 29/3/03 or 6/8/04) the action was commenced more than six months after the cause of action arose. I agree with the submission of the learned counsel for the Respondent that the action was statute-barred.
Even if the 2nd and 3rd Respondents were to be held not to be Public Officers (which I have not done here in view of my observations earlier on that point) and they were to have been found to have hand in the letter (which is not the case here) they would have been held to be the agents of the 1st Respondent which situation would have not changed the situation as the Latin maxim is: QUI FACIT PER ALUM FACIT PER SE (He who does an act through another does the act himself).
The learned trial Judge adverted to Section 151 of the Local Government Law and rightly, in my view struck out the action as being statute-barred. The issue is therefore resolved against the Appellants in favour of the Respondents. Accordingly, the appeal is dismissed with cost which I fix at N5,000.00
AMIRU SANUSI, J.C.A.: I have been opportuned to read in advance, the lead judgment of my Noble Lord Nwosu-Iheme JCA. The conclusion arrived at in the lead judgment that the appeal lacks merit is also agreeable to me. I endorse the order on cost awarded in the leading judgment.
GEORGE OLADEINDE SHOREMI, J.C.A.: I have read in draft the judgment of my leaned brother Nwosu-Iheme JCA. I agree that the sole issue canvassed by both parties be resolved against the Appellant and in favour of the Respondent. The appeal is dismissed with cost of N5,000 in favour of the Respondent.
Appearances
E. O. AfolabiFor Appellant
AND
S. U. IgbinewekaFor Respondent
