NATIONAL VETERINARY RESEARCH INSTITUTE & ANOR v. MRS OMOLARA R. UMAR
(2012)LCN/5102(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of January, 2012
CA/J/128/2011
RATIO
THE GENERAL PRINCIPLE RELATING TO STATUTE BARRED CASES
It is also significant to restate that their Lordships of the apex Court had in strong terms pronounced upon and laid down the general principle relating to statute barred cases as rightly submitted by the learned Appellants’ counsel. For instance in the case of Alhaji Aliyu Ibrahim v. Judicial Service Committee Kaduna & 1 Or. (1998) 14 NWLR (Pt. 584) 1 at 32 their Lordships had this to say: “The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceeding shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the Plaintiff or injured person to commence action would have been extinguished by such law.”? PER. CLARA BATA OGUNBIYI, J.C.A
DETERMINATION AS TO WHETHER OR NOT A SUIT IS STATUTE BARRED
For the determination as to whether or not a suit is statute barred, reference can be had to the pronouncement by his Lordship Niki Tobi JCA (as he then was) in the case of Aina v. Jinadu (1992) 4 NWLR (Pt.233) 91 at 110 wherein the learned jurist said: “In order to determine whether an action is statute barred or not, the court must be invoked in the exercise of calculation of the years, months and days to the minutest detail. It is really an arithmetic exercise, which needs a most accurate answer.”?
The Federal High Court Rules of Civil Procedure has made a specific provision for such situational circumstance in Order 16 Rules 1 and 2 which same reproduced state thus: “1. No demurrer shall be allowed. 2. (1) A party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial.”? The interpretation of the provision is clear and unambiguous to the effect that demurrer has been abolished and is no longer applicable. In its place however and as rightly submitted by the learned Respondent’s counsel Rule 2 of Order 16 of the said Rules is a replacement or substitute. A Defendant therefore who wishes to raise any point of law would be entitled to do so but on his pleadings which in this case should be the statement of defence. The raising of such ‘any’ point of law cannot be extant to a party’s pleadings but contained there within. The understanding of this does not need a far reaching explanation or tutorial lessons. In confirmation and to buttress the contention, the apex Court in the case of Ketu & Anor. v. M. Omikoro & Others (1984) 10 S.C. 265 at 267-268 for instance had this to say: “It is the cardinal rule of pleading that such specific matters as the limitation law must be expressly set out or pleaded in the statement of defence. Once not pleaded, the defendant cannot be granted the protection of that law…” PER. CLARA BATA OGUNBIYI, J.C.A
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
1. NATIONAL VETERINARY RESEARCH INSTITUTE
2. GOVERNING BOARD NVRI VOM Appellant(s)
AND
MRS OMOLARA R. UMAR Respondent(s)
CLARA BATA OGUNBIYI, J.C.A.(Delivering the Leading Judgment): This is an appeal from the ruling of the Federal High Court sitting in Jos delivered on the 23rd of May, 2011 by Hon. Justice B.B. Aliyu see pages 70-79 of the record of appeal.
The Respondent as the Plaintiff of the lower Court had taken out a writ of summons against the Appellants as Defendants wherein she sought the following reliefs:
(a) A declaration that the purported dismissal of the Respondent/Plaintiff from her employment with the 1st Appellant/Defendant is null, void, utravires and of the Public Services Rules 2006 and the condition of service governing her employment and the Appellants.
(b) A declaration that the unilateral stoppage of the Respondents/Plaintiff’s salaries and other emolument is wrong, utravires, unlawful and oppressive.
(c) A declaration that the purported dismissal of the Respondent/Plaintiff from the services of the 1st Defendants without affording her the opportunity of being heard is a fragrant breach of her fundamental right to fair hearing as enshrined in the constitution of the Federal Republic of Nigeria 1999 and to that extent null, void and of no effect whatsoever.
(d) An order directing the Defendants to reinstate and restore the Plaintiff to her appointment with all the attendant salaries, emolument, privileges and rights accruing thereto.
(e) The sum of N500, 000.00 being damages for Unlawful Dismissal.
(f) The cost of action.
See pages 3-8 of records of Appeal-
The Appellants through their counsel filed a notice of preliminary objection challenging the jurisdiction of the trial Court to hear and determine the suit on the following grounds:
i. That the suit is statute barred, not having been filed within three (3) months when the cause of action arose as provided by Section 2(a) of the Public Officers Protection Act 2004.
ii. That the letter of dismissal which is the basis of the cause of action was written on the 2nd of September, 2009.
iii. That the suit be struck out for want of jurisdiction. See pages 43-59 of the records of Appeal.
In the Respondent’s reply to the preliminary objection, Counsel to the Respondent/Plaintiff raised a sole issue for determination. That is, “whether the notice of preliminary objection dated 15/11/2010 is competent at this stage of the trial”.
In his argument, counsel for the Respondent/Plaintiff argued that the Appellants ought to have filed a statement of defence along with the preliminary objection. See Pages 61-64 of records of Appeal.
The trial judge after taking arguments from both counsel adjourned the matter for ruling. The trial judge having been transferred but by fiat sat on the 23rd May, 2011 and delivered ruling on the preliminary objection wherein the preliminary objection was dismissed. See pages 70-79 of the records of appeal.
Being dissatisfied with the said ruling, the Defendants who are now Appellants in this Court filed notice and grounds of appeal at pages 80-82 of the record of appeal and containing two grounds and some reproduced without the particular are as follows:
“1. The defendants have not filed any statement of defence in which they could plead statute of Limitation. Their notice of objection dated and filed on the 15th of November, 2010, is in breach of order 16 the Federal High Court Civil Procedure Rules 2009 and in breach of the Cardinal rule of pleading as stated by the Supreme Court in the case of Ketu 4 Anor v. Onikoro 4 others (1984) 10 SC 265 at 267-268. The objection is a demurrer and it proceed to trial on merit.
2. The trial court erred in law when it did not make any finding on issue of jurisdiction having regard to the Statute of Limitation as provided by Section 2(a) of the Public officers Protection Act 2004 raised by the defendant despite that fact that there is enough materials before the trial court to decide on issue of jurisdiction.”?
Particulars of error supplied.
The record of appeal was transmitted to this Court on the 22nd July, 2011.
The Appellants’ brief of argument was dated 2nd September, 2011 and filed within time on the 5th September, 2011. The Respondent thereafter also within time filed her brief of argument on the 6th October, 2011. Same was served on the Appellant whose reply brief was further filed 11th October, 2011.
On the 18th October, 2011 when this appeal came up for hearing, the learned counsel Messrs. O. Makanjuola and S. Mom represented the parties Appellant and Respondent respectively. In adopting and relying on the Appellant’s brief on the one hand, his learned counsel urged that the appeal be allowed since the subject matter was no longer within the jurisdiction of the trial Court. On the other hand however, it was submitted on behalf of the Respondent that the appeal is devoid of any merit and ought therefore be dismissed.
From the two grounds of appeal filed two issues formulated by the Appellants for determination are as follows:
i. Whether the Respondent’s action was statute barred by the provision of section 2(a) of the public officers Protection Act 2004 thereby ousting the jurisdiction of the trial Court- This is covered by ground one of the grounds of appeal.
ii. Whether the trial court was right when it held that the objection is a demurrer and it shall not be allowed unless the preliminary objection is filed along with Statement of Defence, when the preliminary objection raised the issue of jurisdiction.
On behalf of the Respondent the only issue raised was whether the procedure for raising preliminary objection must be obeyed or not.
The Appellants in urging the statute barred nature of the action, related copiously to Section 2 of the Public Officers Protection Act 2004.
This, learned counsel argued especially having regard to the date of the dismissal, that is to say when the act complained of occurred vis-a-vis the date the writ of summon was filed. In other words, that from 2nd September, 2009 the date of the dismissal letter and 15th October, 2010 when the writ was filed the period is well over one Year after occurrence.
That the Respondent did not therefore file the action within the three months next after the act complained of and hence rendering the suit as statute barred. The counsel to buttress their submission cited the Supreme Court authority of the case of Alhaji Aliyu Ibrahim v Judicial Service Committee Kaduna & 1 Or. (1998) 14 NWLR (Pt. 584) 1 at 32. That the defendants are public officers within the meaning of Section 2(a) Public Officers (Protection) Act 2004. The counsel made further reference to a number of authorities and urged that in the absence of commencing this action within three months as stipulated by the law, that same is automatically rendered as statute barred. That the Court should therefore dismiss this appeal for want of jurisdiction.
On the second issue raised, the Appellants’ learned counsel submitted and questions the trial court’s competence when it held that the objection is a demurer and which should not be allowed in the absence of objection filed along with the statement of defence. That the preliminary objection raised is on issue of jurisdiction and which goes to the jurisdiction of the Court or Tribunal and which can be raised at any stage of the Proceedings. Learned counsel cited amongst others the case of FRIN v. Gold (2007) 11 NWLR (pt. 1044) 1 at 18-19. Several other cases were also cited in reasserting that the jurisdiction of Court which is supreme can in no way be compromised.
Counsel on the totality submitted that by raising the preliminary objection on point of law together with the address, the Respondent was quite aware of the Appellants’position as to what the objection was all about. Hence that the Respondent was therefore neither taken by surprise nor was she prejudiced in any way. Learned counsel on the totality therefore urged the Court to invoke Section 15 of the Court of Appeal Act, 2004 for purpose of allowing the appeal and to dismiss the suit for lack of jurisdiction.
In response to the submission, the learned counsel Mr. Simon Mom on behalf of the Respondent while urging the Court to dismiss this appeal submitted that in the absence of the Defendants failing to file any statement of defence in which they could specially plead the statute of limitation as required by Order 13 Rule 6(1) of Federal High Court, (Civil procedure) Rules 2009, their appeal cannot be sustained. Furthermore that the Defendant’s notice of objection filed and dated 15/11/2010 is in breach of Order 16 of the Federal High Court (Civil Procedure) Rules 2009.
Furthermore, that the absence of the jurisdiction of the trial Court is not so apparent on the face of the writ of summons and that of the statement of claim but that it is latent or evidence based. He therefore maintained that the appeal be dismissed.
The determination of the totality of this appeal is predicated on whether or not the action the subject matter of contention has become statute barred by the operation of the law? While the Appellants have hammered loud and clear that the suit is no more within the trial Court’s jurisdiction, the Respondent has dismissed that contention with a simple wave of hand. The resolution of the issue is forth coming and straightforward as it is anchored on the interpretation of Order 16 Rules 1 and 2 of the Federal High Court Rules read along with the authority in the case of Ketu v. Omikoro (1984) 10 SC 265 at 267-268, a decision of the Supreme Court.
It is also significant to restate that their Lordships of the apex Court had in strong terms pronounced upon and laid down the general principle relating to statute barred cases as rightly submitted by the learned Appellants’ counsel. For instance in the case of Alhaji Aliyu Ibrahim v. Judicial Service Committee Kaduna & 1 Or. (1998) 14 NWLR (Pt. 584) 1 at 32 their Lordships had this to say:
“The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceeding shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the Plaintiff or injured person to commence action would have been extinguished by such law.”?
The said authority by their Lordships (supra), as well as all other related authorities cited by the learned Appellants counsel are all authorities which govern the concept of statute barred cases and are therefore trite in nature.However and that notwithstanding, the applicability of the said foregoing authorities to the case at hand is a question of fact as to whether or not the same circumstance also applies. In other words, the question for determination is whether the same situational circumstance and facts of the authorities under reference are on all fours with the case of hand?
At page 78 of the record of appeal, the learned trial Court judge in his ruling the subject of appeal had this to say:
“The defendants have not filed any statement of defence in which they could plead the statute of limitation. Their notice of objection, dated and filed on the 15th of November, 2010, is in breach of Order 16 of the Federal High Court Civil Procedure Rules 2009 and in breach of the cardinal rule of pleading as stated by the Supreme Court in the case of Ketu Vs. Omikoro (supra). The objection is a demurrer and it shall not be allowed. The objection is dismissed. The matter shall proceed to trial on the merit.
For the determination as to whether or not a suit is statute barred, reference can be had to the pronouncement by his Lordship Niki Tobi JCA (as he then was) in the case of Aina v. Jinadu (1992) 4 NWLR (Pt.233) 91 at 110 wherein the learned jurist said:
“In order to determine whether an action is statute barred or not, the court must be invoked in the exercise of calculation of the years, months and days to the minutest detail. It is really an arithmetic exercise, which needs a most accurate answer.”?
The Federal High Court Rules of Civil Procedure has made a specific provision for such situational circumstance in Order 16 Rules 1 and 2 which same reproduced state thus:
“1. No demurrer shall be allowed.
2. (1) A party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial.”?
The interpretation of the provision is clear and unambiguous to the effect that demurrer has been abolished and is no longer applicable. In its place however and as rightly submitted by the learned Respondent’s counsel Rule 2 of Order 16 of the said Rules is a replacement or substitute. A Defendant therefore who wishes to raise any point of law would be entitled to do so but on his pleadings which in this case should be the statement of defence. The raising of such ‘any’ point of law cannot be extant to a party’s pleadings but contained there within. The understanding of this does not need a far reaching explanation or tutorial lessons. In confirmation and to buttress the contention, the apex Court in the case of Ketu & Anor. v. M. Omikoro & Others (1984) 10 S.C. 265 at 267-268 for instance had this to say:
“It is the cardinal rule of pleading that such specific matters as the limitation law must be expressly set out or pleaded in the statement of defence. Once not pleaded, the defendant cannot be granted the protection of that law…”
With reference to the statement of claim filed by the Plaintiff/Respondent at paragraph 10 page 7 of the record of appeal, the facts are clearly deposed that the purported letter of dismissal was dated 2nd September, 2009 and the suit filed on the 15th of October, 2010. There is however no evidence as to the date the letter was brought to the notice of the Respondent. The mere dating of the letter on the said specific date is not enough and conclusive evidence of same being delivered on the said date. This is more so especially wherein the Respondent averred in her statement of claim that she only subsequently discovered the letter which was served on her son at her house and in her absence. While the service on her son could not have been good service, the date was also not specified. The procedure is totally alien and outside our judicial system of adjudication.
The issue of service is a question of fact and very fundamental. It can neither be waived nor compromised. The expiry of the three months period must be established for purpose of the invocation of Section 2(a) of the Public Officers Protection Act 2004. It should be a pre-emptive contention.
With reference to Order 13 Rule 6(1) of the Federal High Court (Civil Procedure) Rules 2009, it states thus:
“A party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality), which if not specifically pleaded, might take the opposite party by surprise.”‘9d
By the rules of practice of the said Federal High Court (supra) therefore, certain matters are required to be specifically pleaded and such which in the circumstance includes “any relevant statute of limitation”. The use of the word ‘shall’ has also made the said provision mandatory and so must it be without more or less. By the very nature of Section 2(a) of the Public Officers Protection Act 2004, same seeks to oust the jurisdiction of the trial Court in situation where the act complained of was not filed within the period of three months next after the act the consequence which will therefore render the suit as statute barred. In the matter of hand, and for the statute bar principle to apply, it is not enough to consider the date of the letter of dismissal along side when the writ of summons was taken out. Recourse and consideration must also be had to the intervening situational circumstance such as the date the letter was brought to the knowledge of the Respondent which revelation is a matter of fact to be contained on the Appellants’ statement of defence. The intending pre-supposition of order 13 Rule 6(1) of the High court Rules (supra) cannot therefore be under estimated. The reproduction of the Section 2 of the Public Officers Protection Act 2004 Provides:
“Where any action, prosecution or other Proceeding done in pursuance or execution or 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 duty in the execution of any such Act, duty or authority, the following provisions shall have effect.”
(a) “The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in case of a continuance of damage or injury, within three months next after ceasing thereof.”?
In my view, the water tight intention of the foregoing provision which seeks to oust or under rate the jurisdiction of the Court is by nature subject to Order 13 Rule 6(1) of the High Court Civil Procedure Rules (supra) which lays that the limitation must be pleaded. In other words, its invocation is subject to specifically pleading the aberration.
As rightly submit ted by the learned Respondent’s counsel, the application of the provision requires that parties are to exchange pleadings so that the facts and issues in controversy may be set out before the Court can be certain that the objection raised to the suit by an adversary is not one on which adjudication may be made in the court. The determination of a suit at that stage has in the circumstance nothing to do with the merit of the suit. In the case of Iorshagher v. Oloruntobi (2004) All FWLR (Pt.228) a decision of this court, it was held that:
“Even where an objection is raised to the jurisdiction of the court, the court is entitled and required that pleadings be exchanged; and the matter in issue properly presented before the absence of the jurisdiction of the court is apparent. ”
The learned Appellants’ counsel had in his submission cited plethora of authorities in expatiating the absence of jurisdiction where the cases are conclusively statute barred. The question of absence of jurisdiction in general terms is very fundamental and hence the reason why it could be raised at any stage of the proceedings even it for the first time on appeal.
This is however where the issue relates to substantive as opposed to procedural jurisdiction. In addressing the point at hand therefore, it is significant to draw a distinction between question of jurisdiction simplicita and where it operates subject to a caveat or condition as it is with the case before us. While the former relates to a substantive jurisdiction and therefore constitutional and watertight in nature, the latter is procedural and which can be waived. There cannot be any saving grace where a Court lacks constitutional jurisdiction. In the case of Controller-General of Prisons & Ors. v. Mr. Ikponmwaso Idehen (2010) 3 NWLR (Pt. 1182) 503 cited by the Appellants, this Court at pages 516-517 held and said:
“The limitation law is certainly procedural setting out clearly time frame within which an action must be brought. A person should not sleep on his right.”
The evidence of such on ones right is in my view what the provision of Order 13 Rule 6(1) of the Federal High Court Rules had envisaged and sought to forestall. That is by ensuring that the fact of limitation of time must be clearly pleaded and audible. The said authority of the case of Controller- General of Prisons & Ors. v. Ikponmwaso Idehen (supra), cited on behalf of the Appellants is with all respect not supportive of their case but rather that of the Respondent.
While it is therefore conceded that the issue of jurisdiction can be raised of any stage of the proceedings being a threshold issue, it is also important to bear in mind that it can only be raised in accordance with the rules of Court. Where it is manifest or potent from the writ of summons or statement of claim filed, a Defendant can raise the matter. But where the absence of jurisdiction is not so apparent and is latent or evidence-based, a Defendant must comply with the Rules of Court. The question of jurisdiction in the case at hand is evidence-based and not apparent or potent from the writ of summons or statement of claim. See the case of UBN Plc v. BCC Plc (2004) All FWLR (Pt. 206) 434.
As rightly submitted by the learned Respondent’s counsel, for the trial Court to ascertain when the cause of action accrued, it must arrive at when the letter, subject of action, was either purportedly delivered to the Respondent or ascertain when the discovery was made. This, as rightly submitted by the learned Respondent’s counsel, can only be done by pleading filed and exchanged by the parties. It is only after establishing this fact therefore that the cause of action can be said to have accrued after the day of discovery. See the case of Aina v. Jinadu (1992- 4 NWLR (Pt. 233) 9. In the case of hand, the Court would have to ascertain when the discovery was made by the Respondent and the time the writ of summons was filed at the trial Court. It is expected of the Appellants to have complied with the rules of the trial Court by filing their statement of defence therefore and pleading same as a Pre-requisite to seeking discretionary favour from the Court. See the Supreme Court decision in the case of Solanke v. Sometun (1974) NSCC14. Where it was held trite that rules of Court are meant to be complied with and hence any party seeking the exercise of discretion in his favour can only be obliged if and when he comes within the provisions of the law. At page 18 for instance the apex Court had this to say:
“Rules of court are made to be followed. They regulate matters in court and help parties to present their case within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with these rules of court that makes for quicker administration of justice.”?
In other words he who comes to equity must come with clean hands. The Appellants I hold did not perform and exhaust the avenue open to them and hence did not earn the favour of the court. The case of Ketu & Anor. v. Omikoro & Others under reference(supra) is well spelt out and in point.
The same principle was also recently applied by their Lordships of the apex court in the case of Hassan v. Aliyu (2010) 17 NWLR (Pt.1223) 547 of 619 where in a situation of this nature, the Defendant must as a duty plead such defence and the trial court is also enjoined to confine itself to the pleadings filed by the parties. Order 16 Rule 3 of the Federal High court (civil Procedure) Rules is clear and apt.
The learned trial judge with its ruling having been based on the decisions of the apex court as well as the rules of the Federal High Court, cannot I hold be faulted in overruling the procedure adopted by the Appellants in raising the objection on jurisdiction of the Federal High Court.
In other words, the procedure as rightly held by the trial Court was improper wherein the Appellant come by way of a preliminary objection on the basis of the statement of claim and without having filed a statement of defence which would have made it apparent. The conclusion arrived at by the learned trial judge was therefore a step in the right direction that the objection be dismissed while the matter should proceed to trial. Having taken the Appellants two issues jointly therefore, the appeal on the totality is I hold, devoid of any merit and same accordingly dismissed. The Ruling of the Federal High Court sitting in Jos and delivered on the 23rd May, 2011 by Hon. Justice B.B. Aliyu is hereby upheld wherein the preliminary objection raised is dismissed and order made that the trial should proceed. No order made as to costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree.
PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, CLARA BATA OGUNBIYI, JCA and I totally agree with the reasoning and conclusions arrived thereat. I too uphold the ruling of the Federal High Court sitting in Jos and delivered on the 23rd day of May, 2011 by Honourable Justice B. B. Aliyu.
I abide by my Lord’s Order as to cost.
Appearances
O. MAKANJU OLA Esq. and H. YILZOM Esq.For Appellant
AND
SIMON MOM Esq. and F. Z. INUSA Esq.For Respondent
