NESTELLO GATEWAY GROUP LIMITED v. JUDICIAL SERVICE COMMITTEE OF FEDERAL CAPITAL TERRITORY, ABUJA (2019)

NESTELLO GATEWAY GROUP LIMITED v. JUDICIAL SERVICE COMMITTEE OF FEDERAL CAPITAL TERRITORY, ABUJA

(2019)LCN/13473(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2019

CA/A/09/2019

RATIO

CONTINUING DAMAGE OR INJURY: DEFINITION

In AREMO II V. ADEKANYE (2004), ALL FWLR (PT. 224) 2113 AT 2132, the Court stated the position of the law as to what constitutes “continuing damage or injury”. It is stated thus:
Admittedly, legal principles are not always inflexible. Sometimes they admit of certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused: Battishill Vs Reed (1856) 18 CB 696 at 714. For example, if the owner of mines works them and causes damage to the surface more than six years before action, and within six year of action a fresh subsidence causing damage occurs without any fresh working by the owner, an action in respect of the fresh damage is not barred as the fresh subsidence resulting in injury gives afresh cause of action.”PER ADAMU JAURO, J.C.A.

CONTINUING DAMAGES OR INJURY: PERIOD WITHIN WHICH SUCH AN ACTION CAN BE BROUGHT
In cases of continuance of damage or injury, the Public Officer’s (Protection) Law, permits actions to be brought on the cessation thereof outside three months. This is the position of the law as expounded by GALADIMA, J.S.C, in the Leading Judgment in ATTORNEY-GENERAL OF RIVERS STATE V. ATTORNEY-GENERAL OF BAYELSA STATE & ANOR. (2013) 3 NWLR (PT.1340) 123 AT PAGES 148-149.PER ADAMU JAURO, J.C.A.

JUSTICES

ADAMU JAURO Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

Between

NESTELLO GATEWAY GROUP LTD Appellant(s)

AND

JUDICIAL SERVICE COMMITTEE OF FEDERAL CAPITAL TERRITORY, ABUJA Respondent(s)

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling/Judgment of the High Court of the Federal Capital Territory, Abuja (herein after referred to as the trial Court) in Suit No. CV/1226/17 delivered on the 20th day of September, 2018 by Hon. Justice Maryann E. Anenih.

By writ of summons dated 21st day of March, 2017 and filed on the same date. The appellant as plaintiff at the trial Court claimed against the defendants (in paragraph 66 of its statement of claim) the reliefs as can be found at pages 18-20 of the record of appeal. The respondent upon the receipt of the appellant’s writ of summons, filed a memorandum of conditional appearance and a notice of preliminary objection. The trial Court upheld the respondent’s argument canvassed in the notice of preliminary objection, and struck out the appellant’s suit.

Dissatisfied with the decision of the trial Court, the Appellant appealed to this Court vide its notice of appeal filed on 9th October, 2018 containing a lone ground of appeal.

?The record of appeal was compiled on 20th September, 2018 and transmitted to the Court on

07/01/2019. The briefs of argument were subsequently filed and exchanged by the parties, in accordance with the Rules of Court. The Appellant’s brief of argument settled by CHINEDU G. UDORA ESQ, is dated 13th February, 2019 and filed on the same date. The Respondent’s Brief of Argument on the other hand settled by JOSEPH OLUWAROTIMI OJO ESQ., is dated 20th March, 2019 and filed on the 21/03/2019. The Appellant’s counsel also filed a reply brief on 27/03/2019.

In the Appellant’s brief of argument, a lone issue is distilled for determination from the lone ground of appeal filed as follows:
1. Whether considering the peculiar facts and circumstances of this case, the trial Court was right when it held that the appellant’s suit does not fall within the exceptions to Section 2 (a) of Public Officer’s (Protection) Act (POPA) and hence is statute barred?

The respondent’s counsel on his part also, distilled a lone issue for determination of the appeal to wit:
1. Whether this Honourable Court can grant an order striking out this appeal for non-compliance with the rules of this Court?

The lone issue as distilled by the appellant is adopted in

the determination of this appeal.

ISSUE ONE
“Whether considering the peculiar facts and circumstances of this case, the trial Court was right when it held that the appellant’s suit does not fall within the exceptions to Section 2 (a) of Public Officer’s (Protection) Act (POPA) and hence is statute barred?”
Learned counsel for the appellant submitted that the appellant’s suit is not statute barred because it falls within the exceptions of continuous injury as provided under Section 2 (a) of the Public Officer’s (Protection) Act.

He referred the Court to the cases of; INEC VS. OGBADIBO LOCAL GOVERNMENT & ORS 2015 LPELR – 24839 SC; AREMO II VS. ADEKANYE 2004 ALL FWLR PT. 224 PG 2113 AT 2132-2133; CHIKERE & ORS VS. CHEVRON NIGERIA LTD 2018 LPELR-44123 CA.

He referred the Court to the Black’s law dictionary 8th edition on the meaning of continuance of injury and submitted that the injury in this case is the repeat of violation of the appellant’s legal right to possession of its property and to receive monthly payment of mense profit on the property until possession is delivered.

He argued that the trial Court’s holding that no

facts have been reflected in the pleadings indicating that damage by the defendants has continued is incorrect, because the appellant in paragraphs 34 and 40 of its statement of claim stated that the keys to the said property have not been released to her till date and possession of the said property has not been delivered. He referred the Court to pages 12 and 14 of the record of appeal.

Learned counsel for the appellant distinguished the cases relied upon by the trial Court while arriving at the finding that the appellant’s case does not fall within the exception of continuing injury, and submitted that none of the cases relied upon by the trial Court borders on a subsisting judgment of Court which has pronounced on the rights of the appellant to immediate possession of her property. He referred the Court to the case of AGBAEZE VS. CCC ITEM DISTRICT (2007) 7 NWLR PT. 1032 PG 196. ROSSEK VS. ACB LTD 1993 10 SCNJ 20; AIROE CONSTRUCTION VS. UNIVERSITY OF BENIN 1985 NWLR PT. 2 PG 287.

He insisted that the continuance of legal injury to the appellant in this case arises from the refusal of the respondent to put the appellant in possession of her

property by virtue of the judgment of the Court in suit No. FCT/HC/CV/486/10 which has resulted in the appellant losing the monthly and yearly income as rent or mense profit on the property.

He submitted that since, the appellant’s property has not been returned to her as ordered by the Court, the injury to the appellant is a continuing injury and it excludes the application of Section 2 (a) of the POPA. He referred the Court to the case ofA.G. RIVERS STATE VS. A.G BAYELSA STATE 2013 NWLR PT. 1340 AT 148-149.

He urged the Court to hold that this case falls within the exceptions to Section 2 (a) of POPA and it is not statute barred.
He also urged the Court to allow this appeal and grant the reliefs sought by the appellant in this appeal.

Learned counsel for the respondent on the other hand disagreed with the appellant’s counsel that the plaintiff’s action falls within the exception enumerated under Section 2 (a) of the POPA.

He submitted that the appellant’s claims against the respondent at the trial Court shows that, the respondent was being held vicariously liable for the inability of the 1st defendant in the trial Court to hand over

keys of the plaintiff’s property to plaintiff.

He argued that it is on record that the judgment was obtained by the plaintiff on 11th day of June, 2010. Therefore, if there is any cause of action, it would have accrued on the 8th day of May, 2012 and expired 3 months after. The instant case was filed on 21 March, 2017 a period of 4 years and 2 months after the expiration of the cause of action. Therefore, there was no continuous injury as to make the respondent incapable of enjoying the protection of the Public Officer’s (Protection) Act.

He urged the Court to affirm the decision of the trial Court. He commended to this Court the authorities relied on by the learned trial judge in her ruling.

The appellant in his reply brief, responded to the respondent’s preliminary objection which was earlier struck out. Therefore, the argument in the said reply brief goes to no issue.

Section 2 (a) of the Public Officers (Protection) Act Cap. P41 Laws of the Federation of Nigeria 2004 provides thus;
“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:
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison;..”
In the case of SULGRAVE HOLDINGS INC & ORS vs. FGN & ORS (2012) 17 NWLR (PT. 1329) 309 AT 334 the Supreme Court per GALADIMA, JSC had this to say;
“The Public Officers Protection Act is a statute of limitation and the import of Section 2(a) thereof, is that where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance

or execution of any law or of any default in the execution of any law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act, neglect, or default complained or in the case of continuing damage or injury within three months next after the ceasing thereof. What this means is that Public Officers Protection Act removes the right of action, the right of enforcement act and the right to judicial relief in a plaint. This leaves Respondent with a bare and empty or hollow cause of action which he cannot enforce because the alleged cause of action is statute-barred and cannot be maintained.”
In the instant case the grouse of the Appellant against the judgment of the Court below is that the Public Officers Protection Act ought not to avail the respondent, the appellant’s suit having been covered by the exception to the application of Section 2(a) of the Act.
The clear intendment of the above provision in Section 2 (a) of the Act, is that any action that must be filed by any person who feels that he has an axe to grind against an act, neglect or default at the respondent’s

instance, must be filed within three months, next after the act, neglect or default, being complained of by such a person. Therefore, where an action is instituted against the respondent, after three months of its act, neglect or default being complained of, except where the act, neglect or default of the respondent is tantamount to a continuance of damage or injury being suffered by the claimant, such an action will become statute barred. It simply means that the claimant has lost his right to sue the respondent, on account of the latter’s alleged act, neglect or default. See the cases of; DR. TOSIN AJAYI V. ADEBIYI & ORS (2012) NWLR PT. 1310 PG 137 AT 174; MUEMUE VS. GAJI (2001) 2 NWLR (PT. 697) 289 AT 302; EGBE VS. ADEFARASIN (1985) 1 NWLR (PT.3) 549; SOSAN VS. ADEMUYIWA (1986) 2 NWLR (PT.27) 241.
Upon my perusal of the appellant’s claim, it is glaring to me, that their cause of action centered on the refusal of the respondent to put the appellant in possession of its property by virtue of the judgment of the Court in suit No. FCT/HC/CV/486/10 which has resulted in the appellant losing the monthly and yearly income as rent or mense profit on the

property, since the property was successfully taken possession of and keys were left in the hands of the office of the 1st defendant at the end of the enforcement exercise of the 8th May, 2012.
Ordinarily, the action against the appellant ought to have been filed within three months after the refusal of the 1st defendant at the trial Court to hand over the keys of the vacant possession of the property to the plaintiff from 8th day of May, 2012. However, the Supreme Court in a number of cases has expounded and propounded a number of exceptions to the protection provided for “public offices” and “public officers” under the Public Officer (Protection) Law. The following are some of such exceptions:
a. Cases of Continuance of Damage or Injury
b. A situation where the person relying on it acted outside the colour of his office or outside his Statutory or Constitutional duty.
c. Cases of recovery of land.
d. Breaches of contract.
e. Claims for work and labour done.
f. Good faith.
The learned trial judge in his ruling from lines 1-12 at page 277 of the record of appeal found that:
“I have carefully scrutinized the

statement of claim and observed that the alleged date of demand and withholding of the keys have been clearly stated. Reference to the alleged cause and period of damage to property has been clearly pleaded, as a matter of fact the entire wrongful action complained of have been clearly referenced with dates. And no facts have been reflected in the pleadings indicating that damages by the defendants has continued nor that the wrongful actions of the defendants have been repeated within three months prior to the institution of this action.
It is in view of the foregoing that I am of the humble view that the actions of the plaintiff complained of in the statement of claim do not fall within the contemplation of the said exceptions.”..(Underline mine for emphasis)
I understand his lordship’s reasoning to the effect that on the facts and circumstances of the plaintiff’s claim; the exception provided in Section 2 (a) of the Act is not applicable to the appellant’s claim. I am not in agreement with the finding of the learned trial judge. This is because of the fact that for as long as the 1st respondent refuses or neglects to hand over the keys or the

vacant possession of the property to the plaintiff, or refused to put the appellant in possession of her property by virtue of the judgment of the Court in suit No. FCT/HC/CV/486/10 which has resulted in the appellant losing the monthly and yearly income as rent or mense profit on the property, the injury being suffered by the appellant is tantamount to a continuous damage which has not abated or ceased. In other words, the refusal of the respondent to put the appellant in possession of its property by virtue of the judgment of the Court in suit No. FCT/HC/CV/486/10 and its successful execution, which has resulted to the appellant losing the monthly and yearly income as rent or mense profit on the property is a continuous matter such that every month the appellant is not paid income as rent or mesne profit because of the refusal of the respondent to put the appellant in possession of its property, hence the injury is a continuous one.
See the cases of; BABANDE MICHAEL OLUDELE V. WEMA BANK PLC (2014) LPELR-23389 (CA); ATTORNEY GENERAL, RIVERS STATE Vs ATTORNEY GENERAL, BAYELSA STATE (2013) 3 NWLR (PT.1340)123; (2012) LPELR-9336 SC @29-30

ATTORNEY-GENERAL OF RIVERS STATE V. ATTORNEY-GENERAL OF BAYELSA STATE & ANOR. (2013) 3 NWLR (PT.1340) 123 AT PAGES 148-149.
In view of all the above, I hold the view that Plaintiffs action falls squarely within this exception, as the damage and injury against it is a continuing one. I am satisfied and in agreement with the appellant’s counsel that in the circumstances of the appellant’s claims, the damages being suffered by it, is a continuous injury. Therefore, the exception proviso in Section 2 (a) of the Act, is applicable to their claim. Consequently, the appellant’s claim is not statute barred.
This issue is resolved in favour of the appellant.

There is merit in this appeal and it is hereby allowed. The Ruling/Decision of the trial Court delivered on 20th day of September, 2018 in suit No. CV/1226/17 is hereby set aside. In its place, the suit is remitted back to the Chief Judge of the FCT High Court, Abuja for re-assignment to another judge of the Court for accelerated hearing.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother Adamu Jauro, JCA.

I am in agreement with his reasoning and conclusion that this appeal has merit and I do allow this appeal. I also abide by the Consequential order as made in the lead judgment of my brother.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment of my learned brother, ADAMU JAURO, JCA,
I am in agreement with his reasoning and conclusion and orders reached therein.

Appearances:

Chinedu G. Udora, Esq. with him, Faith Saiki, Esq.For Appellant(s)

J. O. Ojo, Esq. with him, O. A. Kolawole, Esq. and C. Ike Anthony, Esq.For Respondent(s)

Appearances

Chinedu G. Udora, Esq. with him, Faith Saiki, Esq.For Appellant

AND

J. O. Ojo, Esq. with him, O. A. Kolawole, Esq. and C. Ike Anthony, Esq.For Respondent