MR. WILFRED OMUETI v. UNIVERSITY OF UYO & ORS
(2019)LCN/12837(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/159/2016
RATIO
COURT AND PROCEDURE: WHEN AN ACTION IS STATUTE BARRED
“As a necessary prelude, where a statute prescribes a time-bar within which an action should be commenced, such a legislation bears the name of limitation law. If an aggrieved person exhibits tardiness by suing his wrong doer outside the statutorily allowed time-bracket, his action is usually declared as statute-barred. Thus, a cause of action is statute-barred when no proceedings can be brought to enforce it because the period laid down by the limitation law has expired by passage of time, see Egbe v. Adefarasin (No. 2) (1987) 1 NWLR (Pt. 47)1; Nasir v. C.S.C., Kano State (2010) 5 NWLR (Pt. 1190) 253; Cotecna Int. Ltd. v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346; Mulima v. Usman (2014) 16 NWLR (Pt. 1432) 160; Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489) 490; Asaboro v. Pan Ocean Oil Corp (Nig) Ltd. (2017) 7 NWLR (Pt. 1563) 42.” PER OBANDE FESTUS OGBUINYA, J.C.A.
COURT AND PROCEDURE: RAISON D’ETRE
“The raison d’etre for limitation law are to ginger up aggrieved persons to be vigilant, to discourage cruel actions, to preserve the evidence by which a defendant will defend the action and to satisfy the public policy that there should be an end to litigation, see Aremo II v. Adekanye (2004) 13 NWLR (Pt. 891) 572; Olagunju v. PHCN Plc. (2011) 10 NWLR (Pt. 1254) 113; Lafia L.G. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 943; Sulgrave Holdings Inc. v. FGN (2012) 17 NWLR (Pt. 1329) 309, Adejumo v. Olawaiye (2014) 12 NWLR (Pt. 1421) 252; CBN v. Okojie (2015) 14 NWLR (Pt. 1479) 231; Asaboro v. Pan Ocean Oil Corp. Ltd. (supra).” PER OBANDE FESTUS OGBUINYA, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
MR. WILFRED OMUETI Appellant(s)
AND
1. UNIVERSITY OF UYO (UNIUYO)
2. MRS. EDA UMONDAK
(Registrar, University of Uyo (UNIUYO)
3. PROF. D. O. EDEM
(Dean, Faculty of Basic Medical Science, UNIUYO)
4. DR. EDET AKPANYUNG
(MBBS Coordinator, Agbami Scholarship Awards, UNIUYO) Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment):
This appeal probes into the correctness of the decision of the Federal High Court, sitting at Uyo (hereinafter addressed as ?the lower Court?), coram judice: I. L. Ojukwu, J., in Suit No. FHC/UY/CS/27/2015, delivered on 5th November, 2015. Before the lower Court, the appellant and the respondents were the plaintiff and the defendants respectively.
The facts of the case, which metamorphosed into the appeal, are amenable to brevity and simplicity. In the 2010/2011 academic session, the appellant, who possessed a B.Sc (Human Physiology) was admitted, through direct entry, with registration No. 10/CS/MB/614, to study Bachelor of Medicine and Bachelor of Surgery (MBBS) in the first respondent. The appellant was also under scholarship sponsorship of N200,000.00 per annum. By the general regulations of the first respondent, the appellant was required to pass all the part II MBBS examinations (Biochemistry examinations), usually conducted by the Faculty of Basic Medical Sciences, before he could proceed to part II of MBBS: the Faculty of Clinical Sciences.
He took part, but did not pass it. He took a repeat and scored 47%. He was asked to withdraw from the MBBS programme. He registered a protest against the result and applied for the remarking of his examination scripts. The appellant claimed that he was cleared, with other three students, to proceed to Clinical Sciences. Subsequently, in a letter dated 28th August, 2014, he was asked to withdraw from the MBBS programme of the first respondent. He contacted the third and fourth respondents for the reversal of the decision, but to no avail. Sequel to these, the appellant, via a writ of summons filed on 13th February, 2015, beseeched the lower Court and tabled against the respondents, jointly and severally, the following reliefs:
1. A declaration that the Plaintiff is still a student of the 1st Defendant having passed his MBBS Part 1 Examinations and asked to proceed to the Faculty of Clinical Sciences on 11th August, 2014.
2. A declaration that the purported letter of withdrawal dated 28th August, 2014 is null and void and of no effect whatsoever.
3. An order directing the Defendants to ensure that the Plaintiff?s name and entitlement under the Agbami Medical and Engineering Scholarship Awards are restored within one month of judgment in this suit.
OR in the alternative the payment of the sum of N600,000.00 being balance due to the Plaintiff for the three years of study in the Faculty of Clinical Sciences at the rate of N200,000.00 per annum.
4. The sum of Ten Million Naira (N10,000,000.00) only as general damages for the embarrassment, loss of time, inconveniences and pains suffered by the Plaintiff.
5. The sum of N500,000.00 being cost of this action.
In reaction, the respondents greeted the suit with a notice of preliminary objection to the jurisdiction of the lower Court to hear it on the ground that: ?The plaintiff?s action is statute barred by virtue of the provisions of Section 2(a) of the Public Officers Protection Act. Cap. P.41 Laws of the Federation of Nigeria, 2004.? The appellant joined issue with the respondents on the preliminary objection. The lower Court, duly, heard the preliminary objection on 21st September, 2015. In a considered judgment, delivered by on 5th November, 2015, found at pages 65-75 of the record, the lower Court upheld the preliminary objection and dismissed the appellant?s suit.
The appellant was dissatisfied with the decision. Hence, on 29th January, 2016, he lodged a 3-ground notice of appeal, copied at pages 76-80 of the record. Subsequently, with the leave of this Court, the appellant filed an amended notice of appeal on 29th March, 2018 and deemed properly filed on that 29th March, 2018, hosting three grounds and prayed that: The judgment of the Federal High Court, Uyo delivered on 5th November, 2015 be set aside and a retrial ordered before another Trial Judge.Thereafter, the parties filed and exchanged their briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 14th January, 2019.
During its hearing, learned counsel for the appellant, E. Iseh, Esq., adopted the appellant’s amended brief of argument, filed on 29th March, 2018 and deemed properly filed on that 29th March, 2018, and the appellant?s reply brief, filed on 19th November, 2018 and deemed properly filed on 14th January, 2019, as representing his arguments for the appeal.
He urged the Court to allow it. Similarly, learned counsel for the respondents, Bassey B. Anwanane, Esq., adopted the respondents’ brief of argument, filed on 25th October, 2018, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the appellant’s amended brief of argument, learned counsel distilled two issues for determination to wit:
1. Whether the Learned Trial Judge was right in holding that the Appellant was not able to substantiate his allegation of bad faith and malice against the Respondents so as not to apply the Public Officers Protection Act and went further to consider the progeny of the Internal Memorandum dated 11th August, 2014 as unknown and did not emanate from the Senate without it content been controverted or denied by the Respondents.
2. Whether the Learned Trial Judge was right in holding that there were no two results for the Appellant after remarking from the pleadings and front loaded documentary evidence except the letter dated 28th August, 2014 to the Appellant but still went on to pronounce on the internal memorandum of 11th August, 2014 thereby misconceiving the law and facts.
In the respondents’ brief of argument, learned counsel crafted a single issue for determination viz:
Whether the Appellant?s suit is caught by the Public Officers Protection Act?
A close look at the two sets of issues shows that they are identical in substance. Indeed, the respondents? issues can, conveniently, be subsumed under the appellant?s. For this reason of sameness, I will decide the appeal on the issues formulated by the appellant: the undoubted owner of the appeal.
Arguments on the issues
Issue one:
Learned counsel for the appellant stated the essence of preliminary objection to dispose a case without going into its merits. He relied on Enebeli v. CBN (2006) II WRN 188; A.-G, Fed. v. ANPP (2014) 114 LRCN 2671. He explained the nature of the respondent’s preliminary objection and how the appellant raised the defences of abuse of office and bad faith against it. He reproduced most of the paragraphs of the appellant?s statement of claim to prove those defences against the third and fourth respondents. He noted that the lower Court wrongly went into the merit of the case.
He submitted, in the alternative, that a party would only plead the material facts and not the evidence by which they would be proved. He cited Ojiogu v. Ojiogu (2010) 48 WRN 1; Okagbue v. Romaine (1982) 5 SC 66; Order 13 Rules 4(1) and 5 of the Federal High Court (Civil Procedure) Rules, 2009 (the Rules for short). He claimed that substantiation of claim would arise through evidence in the open Court. He cited Order 20 Rule 1(1) and 4 of the Rules. He maintained that the appellant discharged the burden of the pleading the necessary material facts, with particulars, in line with the rules of the Court which must be obeyed. He referred to Olaniyan v. Oyewole (2018) WRN 86.
He posited that the lower Court was in error when it considered the internal memorandum of 11th August, 2014 at the objection stage. He asserted, in the alternative, that the internal memorandum, which was not denied, showed that the appellant was cleared to proceed to part II courses. He tagged the lower Court?s finding on passing of examinations amounted to speculation which it had no right to indulge in. He relied on Ivienagbor v. Bazuaye (1999) 70 LRCN 2256.
He accused the lower Court of going outside the pleaded facts contrary to the law. He cited Chabasaya v. Anwasi (2010) 25 WRN 30; Oyinlola v. Ojelabi (2010) 32 WRN 172; West African Cotton Ltd v. Haruna (2008) 13 WRN 130; Olufeagba v. Abdur-Raheem (2010) 17 WRN 23.
On behalf of the respondents, learned counsel contended that a Court would examine the statement of claim, not statement of defence, in considering its jurisdiction in a matter. He relied on Olagunju v. Power Holding Co. of Nigeria (2011) 4 SC (Pt.1) 152. He posited that frontloaded documents formed part of the statement of claim. He stated that the appellant conceded that the suit was filed outside the three months provided in Section 2(a) of the Public Officers Protection Act. He classified the lower Court?s finding that the progeny of the internal memorandum was unknown as a remark and appeals should attack ratio. He cited Udenwa v. Uzodimma (2012) LPELR ? 7953 (CA). He added that a decision would not be set aside because of one inaccurate statement when other grounds existed. He cited Dike-Ogu v. Amadi (2008) 12 NWLR (Pt. 1102) 650; Ibuluya v. Dikibo (2010) 18 NWLR (Pt. 1225) 627.
He noted that the appellant did not provide facts to show bad faith and malice and the lower Court was right to so find. He observed that where a public officer was protected by the Act, the Court would not pry into whether it was right or wrong. He cited A.-G., Fed. v. Ali Abacha (2010) 17 NWLR (Pt. 1221) 1. He insisted that the appellant wrongly filed his action after three months. He referred to Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1. He reasoned that the respondents did not go outside the scope of their authority and without justification. He explained that there was no evidence of malice. He relied on Nigerian Institute of Oceanography and Marine Research v. Okonya (1996) 4 NWLR (Pt. 444) 611. He stated that no oral evidence could ever be adduced at the trial to contradict the letter of 28th August, 2014. He cited Durojaiye v. Continental Feeders (Nig.) Ltd. (2001) 10 NWLR (Pt. 722) 657. He concluded that the lower Court was right not to have gone into full trial as that would be an academic exercise. He relied on Odom v. PDP (2015) 6 NWLR (sic) 527; Dahiru v. APC (2017) 4 NWLR (Pt. 1555) 218.
On points of law, learned counsel for the appellant argued that the suit was not statute-barred because it came within the exceptions he listed as noted in Offoboche v. Ogoja L. G. (2011) 36 WRN 1; Hassan v. Aliyu (2011) 195 LRCN 109; Osun State Government v. Dalami Nig. Ltd (2007) 148 LRCN 1311; Aiyelabegan v. L.G. Service Commission, Ilorin, Kwara State (2009) 22 WRN 108. He persisted that the respondents? acts were done mala fide and could not be protected by the Public Officers (Protection) Act.
Issue two:
Learned counsel for the appellant submitted that the lower Court?s finding that there were no two results, after remarking, in the pleadings and pronouncement on the internal memorandum of 11th August, 2014 amounted to a misdirection on the law and fact. He cited Oyinloye v. Esinkin (1990) 70 LRNCN 2068 on the meaning of misdirection. He reproduced paragraphs 11-15 of the statement of claim to show that there was result after the remarking by reference as shown in the internal memorandum. He stated that a Court had the duty to make findings of facts placed before. He referred to Adeleke v. Iyanda (2001) 88 LRCN 2162.
For the respondents, learned counsel postulated that the lower Court was right as there was no other result after the remarking of the appellant?s scripts and only one letter, dated 28th August, 2014, emanated from the Senate of the first respondent.
Resolution of the issues:
A clinical study of the two issues amply reveals that they are interwoven in that they share a common target: to puncture/perforate the lower Court?s finding that the appellant’s action was statute-barred. Given this intertwined relationship, I will, in order to conserve the scarce juridical time and space, amalgamate them and fuse their consideration. Although the purport of the issue seem stubborn, they fall within a narrow compass: whether or not the appellant’s suit was caught by limitation law.
As a necessary prelude, where a statute prescribes a time-bar within which an action should be commenced, such a legislation bears the name of limitation law. If an aggrieved person exhibits tardiness by suing his wrong doer outside the statutorily allowed time-bracket, his action is usually declared as statute-barred. Thus, a cause of action is statute-barred when no proceedings can be brought to enforce it because the period laid down by the limitation law has expired by passage of time, see Egbe v. Adefarasin (No. 2) (1987) 1 NWLR (Pt. 47)1; Nasir v. C.S.C., Kano State (2010) 5 NWLR (Pt. 1190) 253; Cotecna Int? Ltd. v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346; Mulima v. Usman (2014) 16 NWLR (Pt. 1432) 160; Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489) 490; Asaboro v. Pan Ocean Oil Corp (Nig) Ltd. (2017) 7 NWLR (Pt. 1563) 42.
The raison d?etre for limitation law are to ginger up aggrieved persons to be vigilant, to discourage cruel actions, to preserve the evidence by which a defendant will defend the action and to satisfy the public policy that there should be an end to litigation, see Aremo II v. Adekanye (2004) 13 NWLR (Pt. 891) 572; Olagunju v. PHCN Plc. (2011) 10 NWLR (Pt. 1254) 113; Lafia L.G. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 943; Sulgrave Holdings Inc. v. FGN (2012) 17 NWLR (Pt. 1329) 309, Adejumo v. Olawaiye (2014) 12 NWLR (Pt. 1421) 252; CBN v. Okojie (2015) 14 NWLR (Pt. 1479) 231; Asaboro v. Pan Ocean Oil Corp. Ltd. (supra).
The orthodox judicial formula for gauging limitation legislation is simple. A Court is enjoined to examine the filed writ of summons or the originating process, either of which will showcase when the cause of action was disclosed in it, with the period stipulated in the limitation statute within which to sue. If the date of filing in the matter is beyond the period allocated by the limitation law, then it is statute-barred. Conversely, if the time limit comes within that permitted by that law, then it is not statute-barred, see Woherem v. Emereuwa (2004) 13 NWLR (Pt. 890) 398; Aremo II v. Adekanye (supra); Elebanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76; Williams v. Williams (2008) 10 NWLR (Pt. 1095); Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 574; INEC v. Enasto (2010) 2 NWLR (Pt. 1602) 63; Mulima v. Usman (supra); Nweke v. Unizik, Awka (2017) 18 NWLR (Pt. 1598) 454.
The provision of Section 2(a) of the Public Officers (Protection) Act, Cap. P. 41, Laws of the Federation of Nigeria, 2004, upon which the second and third respondents pegged their objection, reads:
2. Actions against public officers.
Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect
Limitation of time
(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:
The scary provision has received interpretation in loads of decided cases on time-bar in instituting actions, see Osun State Govt. v. Dalami (Nig.) Ltd. (2007) 9 NWLR (Pt. 1038) 66; FRIN v. Gold (2007) 11 NWLR (Pt. 1044) 1; Hassan v. Aliyu (supra); Lafia L.G. v. Nassarawa State (supra); Sulgrave Holdings Inc. v. FGN (supra); Ibrahim v. Lawal (supra); Nweke v. Unizik, Awka (supra). It is settled law, that a person in the provision is not limited to a natural person. It encompasses artificial persons such as institutions, corporations and parastatals, see Ibrahim v. JSC, Kaduna State (1998) 14 NWLR (Pt. 584) 1; Unijos v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 478. Recently, the case-law has expanded the horizon of the provision to include non-public officers, see Sylva v. INEC (2015) 16 NWLR (Pt. 1486) 576.
Remarkably, the case-law has endorsed, in toto, a statement of claim most essential as the barometer to be used by the Court to measure the presence or absence of statute-bar/limitation law, see Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yar?adua v. Yandoma (2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124; Sun Ins. (Nig.) Plc. v. U.E.C.C. Ltd. (2015) 11 NWLR (Pt. 1471) 570; CBN v. Okojie (2015) 14 NWLR (Pt. 1479) 231; Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28.
In due allegiance to the injunction of the law, I have consulted the record, the plinth/substratum of the appeal, especially at the residence of the appellant’s 27-paragraph statement of claim which colonizes pages 5-10 thereof.
I have perused it with the finery of a tooth comb. Interestingly, the averments therein are submissive to clarity and comprehension. It can be gleaned from the crucial averments, that the appellant?s cause of action arose on 1st September, 2014 and he approached the lower Court for redress on 13th February, 2015. By calendar computation, the action was instituted in excess of the three months decreed in Section 2(a) of the Public Officers (Protection) Act. Put bluntly, the action fractured the sacrosanct provision. It was stale. Admirably, the appellant, discernible from the learned counsel’s sterling submissions, conceded that much, id est, that the matter was commenced months after the expiration of the three months as ordained in the provision. It is a commendable act of good advocacy.
Now, the appellant’s chief grievance is canalized within the lower Court’s failure to accede to his defences of abuse of office and bad faith which he invented to castrate the preliminary objection. Generally, the doctrine of statute-bar is elastic. It admits of exceptions. The appellant paid due obeisance to the law when it set up, as a shield, the defences of abuse of office and bad faith/malice. Of course, a success of the defence(s) has the potential to infuse validity into the action.
Indisputably, the potency and nature of the twin defences have received the blessing of the case-law. In Offoboche v. Ogoja L.G. (2001) 16 NWLR (Pt. 739) 458 at 485; Ayoola JSC, incisively, intoned:
Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers (Protection) Law of such protection. The burden is on the plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification. Evidence that he may have been over-zealous in carrying out his duties or, that he acted in error of judgment or, in honest excess of his responsibility, will not amount to bad faith or abuse of office. Abuse of office is use of power to achieve ends other than those for which power was granted, for example, for personal gain, to show undue favour to another or to wreak vengeance on an opponent, to mention but a few. See also Lagos City Council v. Ogunbiyi (1969) All NLR 287; Nwankwere v. Adewunmi (1966)/1 SCNLR 356/(1965) NSSC, vol. 4, 140; Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547.
I have situated the magisterial pronouncements in the ex cathedra authorities with the facts averred in the statement of claim. The rationale behind the juxtaposition is plain. It is to ascertain if the averments disclose the heinous allegations of abuse of office and bad faith which the appellant rained against the respondents, particularly the third and fourth respondents, since the onus probandi resides in him to prove them.
The appellant’s trump card, in the allegations vis-a-vis the third respondent, was that he gave him his own copy of the letter of 28th August, 2014, which rusticated/ostracized him from the first respondent’s MBBS programme, in advance. That, to my mind, is a classic exemplification of over-zealousness on the part of the third respondent in the performance of his duties as the superintendent of Basic Medical Sciences of the first respondent. Such eagerness, flowing from the judicial declaration displayed above, does not fall within the slim perimeter of abuse of office and bad faith.
By the same token, the fourth respondent’s communication to the sponsors of the appellant’s scholarship to abort/forestall further payment, anterior to the outcome of his appeal, is another quintessence of over-zealousness or, at worst, an honest excess in the discharge of responsibility. Either of them falls outside the lean four walls of abuse of office and bad faith. Besides, the appellant, in his infinite wisdom, starved the Court of factual disclosure that the fourth respondent?s foreclosure of the scholarship grant was for his personal benefit or that of any one else.
It stems from this brief legal anatomy, that the defences of abuse of office and bad faith/malice, which the appellant erected and unleashed against the respondents pale into insignificance. They are disabled and cannot fly. To this end, the lower Court’s solemn finding, wrapped at page 74, lines 10-12, of the record, ‘From the facts of this case’ the case presented by the plaintiff [appellant] cannot be anchored within the exceptions of the law, is immaculate and unimpeachable. It will smell of judicial sacrilege to tinker with a finding that is not hostile to the law.
An offspring of these is plain. The defences of abuse of office and bad faith/malice, weaved by the appellant, are impotent. A successful plea of limitation, as a shield, by an opposing party occasions two harmful effects against a plaintiff’s action. Firstly, he becomes a destitute of the right of action and judicial relief. In a word, it extinguishes his cause of action, see Egbe v. Adefarasin (No. 2) (supra); Nasir v. C.S.C., Kano State (supra); Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407; INEC v. Ogbadibo L.G. (2016) 3 NWLR (Pt. 1498) 167; Buremoh v. Akande (2017) 7 NWLR (Pt. 1563) 74. Secondly, the Court ceases to be crowned with the requisite jurisdiction to entertain his action. See Owners of the MV ‘Arabella’ v. NAIC (supra)/(2008) 10 NWLR (Pt. 1097) 182; Olagunju v. PHCN Plc. (supra); JFS. Inv. Ltd. v. Brawal Line Ltd. (2010) 18 NWLR (Pt. 1225) 495; Sylva v. INEC (2015) 16 NWLR (Pt. 1486) 576; INEC v. Onowakpoko (2018) 2 NWLR (Pt. 1602) 134. In effect, the appellant was armed with a soured cause of action which could not be ventilated in the bowel of the Court.
In the end, I have no option than to resolve the conflated issues against the appellant and in favour of the respondents.
On the whole, having resolved the conjoined issues against the appellant, the destiny of the appeal is obvious. It is bereft of any morsel of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. Accordingly, I affirm the judgment of the lower Court, delivered on 5th November, 2015, upholding the respondents? preliminary objection. The parties shall bear the respective costs they incurred in the prosecution and defence of the ill-fated appeal.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Obande Festus Ogbuinya, JCA. I agree with the reasoning and conclusion. I also affirm the judgment of the Court delivered on 5/11/2015, upholding the Respondent’s preliminary objection.
Accordingly, I also dismiss the appeal as lacking in merit. I make no order as to cost.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in draft the judgment just delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA and I agree with the resolution and conclusion arrived at in the lead judgment.
I only would lend my voice to the effect of a suit caught by limitation law and to say that such becomes statute barred. The implication of the action being statute barred is that a Plaintiff who ordinarily would have had a cause of action to be determined by a judicial but because the laid down by the Limitation Law for instituting such an action has elapsed, he automatically loses that right to approach the Court to ventilate his grievance. See ASABORO & ANOR. VS. PAN OCEAN OIL CORPORATION (NIG.) LTD. & ANOR. (2017) LPELR- 41558 (SC) wherein the apex Court held thus:
“It is to reiterated that in an action instituted after the expiration of the prescribed period is said to be statute barred. That is to say that where the limitation of time is imposed in a statute unless that same law makes provision for extension of time, the Courts have their hands tied from extending the time as the action filed outside the stipulated period will lapse by effluxion of time. The follow up to the above is to determine whether an action is statute barred and in doing this the Court is expected to peruse the originating process, statement of claim together with the evidence on record where that has taken place to know when the wrong in question occurred and compare it with the date the Originating process was filled in Court. I rely on the case OGUNDIPE VS. NDIC (2008) ALL FWLR (PT. 432) 1220 at 1239. The implication of the action being Statute is that a Plaintiff who ordinarily would have had a cause of action by judicial process because the period of the time laid down by the Limitation Law for instituting such an action has elapsed, automatically loses that right to approach the Court to ventilate his grievance.” See EBOIGBE VS. NNPC (1994) 5 NWLR (PT. 347) 649.
I now join my learned brother to dismiss the appeal because the suit was statute barred having been filed outside the period allowed by law. I also abide by all the orders made therein.
Appearances:
E. Iseh, Esq.For Appellant(s)
Bassey Anwanane, Esq. with him, Osinachi Udo, Esq.For Respondent(s)
