NNADI & ORS v. BPE & ANOR (2020)

NNADI & ORS v. BPE & ANOR

(2020)LCN/14246(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/E/367/2015

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

1. ENGR BERNARD E. NNADI 2. ENGR JIBRIN AKPA SANI 3. RICHARD ENE 4. JONAS OMEJE 5. GEOFREY NNAJI (THE CHAIRMAN AND MEMBERS; FOR THEMSELVES AND ON BEHALF OF ALL MEMBERS OF THE LEAGUE OF DISENGAGED STAFF AND PENSIONERS OF NIGERIAN COAL CORPORATION (NCC) 2000) APPELANT(S)

And

1. BUREAU OF PUBLIC ENTERPRISES (BPE) 2. VICE CHAIRMAN, NATIONAL COUNCIL ON PRIVATIZATION RESPONDENT(S)

RATIO

THE EFFECT OF LIMITATION LEGISLATIONS

By their nature, limitation legislations have the effect of extinguishing a cause of action once such has not been ventilated within the prescribed period. In other words, where a limitation period is in existence a litigant who is aggrieved and has a cause of action must approach the Court promptly within the stipulated time otherwise he loses the right to litigate on that issue and the Courts would be deprived of the requisite jurisdiction to entertain his claim. See OLAGUNJU & ANOR VS. PHCN PLC (2011) LPELR-2556(SC) and INDEPENDENT NATIONAL ELECTORAL COMMISSION VS OGBADIBO LOCAL GOVERNMENT (2015) LPELR-24839 (SC). PER OYEWOLE, J.C.A.

PROCEDURE BY WHICH THE COURT CAN DETERMINE WHEN THE LIMITATION PERIOD FOR AN ACTION SETS IN
For a determination of when the period of limitation sets in, the Court must determine the date of accrual of the cause of action. In simple language, a cause of action is a factual situation, the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a plaintiff to a remedy against a defendant. It consists of every fact, which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. That is, the fact or combination of facts which gave rise to a right to sue. It is a cause for action in the courts to determine disputed matters. See EGBE VS ADEFARASIN (1987) 1 NWLR (PART 47) 549, THOMAS VS OLUFOSOYE (1986) 1 NWLR (PART 18) 689 and DANTATA VS MOHAMED (2000) 7 NWLR (PART 664) 176. It is also well settled that the Court will only examine the originating processes of the Claimant or Plaintiff in determining the accrual of the cause of action. See ADEYEMI VS OPEYORI (1976) 9-10 SC 31, TUKUR VS GOVT OF TARABA STATE (1997) 6 NWLR (PART 510) 549, OKOROMA VS UBA (1999) 1 NWLR (PART 587) 359 and MIN. FOR WORKS VS TOMAS NIG. LTD (SUPRA) at 772 and 789. PER OYEWOLE, J.C.A.

THE LITERAL RULE OF INTERPRETATION OF A LEGISLATION

Where the words used in a legislation are clear and unambiguous, the Courts have no business looking for what is not lost. They simply give the words their plain, ordinary grammatical meanings, unless doing so would result in some absurdity. That is the literal rule. See THE NORTHERN ASSURANCE CO. LTD VS. WURAOLA (1969) LPELR-25562 (SC), UNION BANK LTD VS PROF. ALBERT OZIGI (1994) LPELR-3389(SC) and NIGERIAN ARMY V. AMINUN-KANO (2010) LPELR-2013 (SC). PER OYEWOLE, J.C.A.

WHETHER OR NOT WHERE AN INJURY OR DAMAGE IS A CONTINUING ONE, IT WOULD CONSTITUTE AN EXCEPTION TO A PERIOD OF LIMITATION

Where the injury or damage is a continuing one, it would constitute an exception as the period of limitation would not run until the cessation of the damage or injury. See AREMO II VS. ADEKANYE (SUPRA) (2007) ALL FWLR (PT. 224) 2113, A.G. RIVERS STATE VS. A.G. BAYELSA STATE (SUPRA), OBUEKE VS. NNAMCHI (2012) 12 NWLR (PT. 1314) 327, ORIORIO VS. OSAIN (2012) 16 NWLR (PT. 1327) 650 and INEC VS. OGBADIBO LOCAL GOVT COUNCIL & ORS (supra). PER OYEWOLE, J.C.A.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National Industrial Court, Enugu Judicial Division, delivered on the 2nd June, 2015 by IBRAHIM, J.

The Appellants were disengaged staff and Pensioners of the Nigerian Coal Corporation whose assets were taken over by the 1st Respondent pursuant to the privatization program of the Federal Government. In the course of winding off the said Nigerian Coal Corporation, an understanding was reached by the Respondents with the Appellants that they would have the right of first refusal on the sale of their residential quarters. Along the line, the Appellants realized that the said right of first refusal had been denied them, the Appellants approached the trial Court for redress and sought the following reliefs:
a) A declaration that the Claimants are entitled to the conveyance of title ownership of residential quarters which they legitimately occupy in accordance with the Monetization Policy and Privatization Labour Policy with regards to disposal of government residential quarters.
b) A declaration that continuous

carving-out and delineating of some portions of the NCC properties, and disposing same to the public, without concurrently allocating the residential quarters to the claimants (Disengaged staffs and retirees) who presently occupy them for them to pay and own, in line with monetization, commercialisation and privatization policy, amounts to double standard, and portends an action in bad faith.
c) A declaration that the non-offer of the 3rd defendant’s houses to the disengaged staff and retirees of the 3rd defendant at monetized prices, since monetization policy of the year 2003, up till this moment; and as earlier directed by the defendant in the year 2007 and subsequently 2009, is a perversion of justice.
d) A declaration that any direct or indirect action, occasioned to encourage displacement of any of the Claimants, from his or her residential quarters, and renting or allocating same to the public, as to occasion denying him or her the benefit of the monetization policy, is illegal and of no effect.
e) An order of this honourable Court directing the defendants to restore the accommodation of any Claimant ejected forcefully, while he/she

was awaiting severance benefit, gratuity etc; and monetize same to him/her.
f) A declaration that the Federal Government Policy on sales of government quarters, stipulated that genuine worker/occupier should have first choice of refusal.
g) An order causing the publication forthwith, in not less than three (3) national newspapers, the list of staff residential buildings of the defunct NCC and the genuine disengaged worker/occupier beneficiary, who are expected to pay and own them in line with the agreed government policy of monetization.
h) An order directing the defendant to effect the conveyance of the title ownership of the monetized properties to the Claimants, in tandem with the list of staff residential buildings of the defunct NCC and the genuine disengaged worker/occupier beneficiary, forthwith.
i) An order of this honourable Court directing the defendant to forthwith, delineate the residential quarters as they are, survey, allocate to the claimants and perfect their title documents in line with Monetization Policy at government rate, as earlier formulated by the defendants.
j) A perpetual injunction restraining the defendants,

it’s agents, privies or by whatsoever or whomsoever from further incursions into, or sales of the residential properties occupied by the claimants to anybody, except to one of the claimants residing therein.
k) A perpetual injunction restraining the defendants from further sales of any property of the 3rd defendant until the property title documents of the Claimant’s quarters are perfected and delivered to them.
Special damages claim against the 1st defendant of:
– N2,000,000.00 (Two Million Naira only) being the cost of litigation and other administrative appurtenances.
– N2,000,000.00 (Two Million Naira only) general damages claim, against the 1st defendant.

On being served, the 1st Respondent raised a preliminary objection to the jurisdiction of the trial Court, contending that the action of the Appellants was statute barred pursuant to the Public Officers Protection Act. The learned Trial Judge considered the arguments canvassed by both sides on the issue, held that the Appellants’ action was statute barred and consequently struck it out.

Unhappy at this turn of events, the Appellant invoked the appellate

jurisdiction of this Court via a Notice of Appeal filed on the 9th day of June, 2015 containing five grounds.

At the hearing of the appeal, Mrs. Nwozor of counsel for the Appellants, adopted the Appellants’ brief filed on the 12th October, 2015 as the arguments of the Appellants in furtherance of their appeal while Edeh Esq., adopted the Respondents’ brief filed on the 9th November, 2015 as the arguments of the Respondents in contesting the appeal.

The Appellants inelegantly formulated six issues out of the five grounds of appeal thereby rendering the said issues patently bad for prolixity. The said issues are as follows:
1. Whether it is right to conclude that the cause of action accrued with the letter dated 16th day of September, 2009; and that the injury meted to the Appellants wasn’t continuing.
2. Whether the letter dated 16th day of September, 2009 could best be described as a legal right, without any appurtenant injury to accrue a cause of action.
3. Whether it is trite law to maintain that in a scenario of this nature, the Claimants have erred in their duty to come to Court within time, hence are statute barred.

Whether the trial Court misdirected itself in law when it failed to evaluate the submissions of learned counsel to the Claimant/Appellant, consequently coming to a wrong conclusion, occasioning miscarriage of justice.
5. Whether the trial Court misdirected itself in law when it applied the literal rule of interpretation of Section 2A of Public Officers Protection Act Cap 41, 2004 to occasion miscarriage of justice on the part of the Claimants Appellant.
6. Whether the ruling of the trial Court is against the weight of evidence and submissions.
The Respondents on their part formulated two issues for determination as follows:
i. Whether Suit No. NICN/EN/07/2015 is statute barred going by the Originating Processes as of the time it was instituted at the lower Court.
ii. Whether the learned trial Judge erred in law by applying the literal rule of interpretation to Section 2A of Public Officers Protection Act Cap 41, 2004.

Issues for determination are not meant to be prolix but should be succinct and terse to capture the essence of what calls for determination in the appeal. Where issues are inelegantly formulated by

parties, the Court could reformulate issues but without going outside the grounds of appeal unless it is an issue of jurisdiction. See FABIYI VS. ADENIYI (2000) 6 NWLR (PT. 662) 532, EDEM VS CANON BALLS LTD & ANOR (2005) 12 NWLR (PART 938) 27, DUWIN PHARMACEUTICAL & CHEMICAL CO. LTD VS BENEKS PHARMACEUTCAL & COSMETICS LTD & ORS (2008) LPELR-974(SC) and PATNASONIC INDUSTRIES LTD VS. BASSEY (2019) LPELR-46914 (CA).

A careful appraisal of the grounds of appeal herein and the arguments canvassed by the two sides discloses that they could be determined under a sole issue for determination, formulated thus:
Whether the trial Court was right when it held that the Appellants’ Suit No. NICN/EN/07/2015 was statute barred.

The learned counsel for the Appellants explored the constituents of a cause of action and submitted that although the letter of 16/9/2009 from the Director General of the 1st Respondent conferred a legal right on the Appellants, it did not accrue to a cause of action.

He submitted that a cause of action is discerned from the writ of summons and statement of claim of a Claimant and that going by paragraphs 16,

17 and 18 of the Counter-Affidavit of the Appellants to the Notice of Preliminary Objection, the cause of action herein accrued in August, 2013 when sales of the adjoining land were ongoing without their being offered their premises. He submitted that a cause of action arises when a legal right is accompanied with an injury capable of being addressed by a Court and referred to DR. JONATHAN COOKEY VS MRS. EVANGELINE FOMBO & ANOR (2005) 5 S.C. (PT 11) 102, ALHAJI MADI MOHAMMED ABUBAKAR VS BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS (2007) 2 SC 48, EGBE VS ADEFARASIN (1987) 1 NWLR (PT. 47) 1, EBOIGBE VS NIGERIAN NATIONAL PETROLEUM CORPORATION (1994) 5 NWLR (PT. 347) 649 and NIGERIAN PORTS AUTHORITY PLC VS LOTUS PLASTICS LTD (2005) 19 NWLR (PT 959) 158 at 181.

Learned counsel further submitted that it was improper to go outside the originating processes of the Appellants to determine when the cause of action arose and that in this case the accrual date is July/August, 2013.

It was contended for the Appellants that the learned Trial Judge failed to evaluate vital exhibits of the Appellant in the Counter-affidavit to the Preliminary Objection which

showed that negotiation was still ongoing with the Respondents and which failure occasioned grave miscarriage of justice. He referred to AWUSE VS ODILI (2005) ALL FWLR (PT 253) 270 and OSUNBOR VS OSHIOMOLE (2009) ALL FWLR (PT 463) 1363.

It was submitted that in interpreting the provisions of Section 2A of the Public Officers Protection Act, the learned Trial Judge should have applied the golden rule of interpretation instead of the literal rule, which would have shown that the provisions were not meant to benefit an artificial person like the 1st Respondent. The learned counsel further submitted that the Public Officers Protection Act was meant to protect a public officer from the distraction of unnecessary litigation but not to deprive a party of legal capacity to ventilate his grievance in the face of stark injustice.

The learned counsel then enumerated the various circumstances where it had been held that the Public Officers Protection Act would not apply and submitted that the Appellants’ action qualified as a situation of continuance of damage or injury, that it borders on land, that their case had stint of breach of contract, that it was

based on work or labor done and that the Respondents have not shown good faith. He referred to ATTORNEY-GENERAL OF RIVERS STATE VS ATTORNEY-GENERAL OF BAYELSA STATE & ANOR (2013) 3 NWLR (PT 1340) 123, BUREAU OF PUBLIC ENTERPRISES VS REINSURANCE ACQUISITION GROUP LTD & ORS (2008) LPELR-CA/A/195/M/05, NIGERIAN PORTS AUTHORITY VS CONSTRUZIONI GENERAL FARSURA COGEFAR SPA & ANOR (1974) 1 ALLNLR 463 and OLATUNJI VS IGP 21 NLR 52.

Learned counsel reiterated that the learned Trial Judge ought to have evaluated the documents attached to the counter-affidavit of the Appellants filed in response to the Preliminary Objection of the Respondents. He urged the Court to allow the appeal.

On his part, the learned counsel for the Respondents equally outlined the legal principles surrounding the determination of what constitutes a cause of action and equally submitted that the cause of action in every given case would be discerned from the originating processes. He referred to CHIEF ADENIGBA AFOLAYAN VS OBA JOSHUA OGUNRINDE & ORS (1990) LPELR (SC) and MR. DANIEL TEIBOGREN VS THE GOVERNOR OF DELTA STATE & ORS (2014) LPELR-23220 (CA).

It was further submitted that a perusal of the Statement of Fact filed by the Appellants herein discloses from paragraph 7 thereof that their cause of action arose on 16th September, 2009. It was contended that the injury here was not a continuing one and that the Appellants had sought redress in the manner contained in the said paragraph 7.

It was argued that pursuant to the provisions of Section 2(A) of the Public Officers Protection Act, the Appellants were limited to a period of three months to seek redress against the Respondents, in the absence of which they would be statute barred. It was further argued that the act covered artificial persons such as the 1st Respondent. Learned counsel referred to DAUDU VS UNIVERSITY OF AGRICULTURE MAKURDI & ORS (2002) Vol. 46 WRN 80, UNIJOS VS IKEGWUOHA (2013) 9 NWLR (PT 1360) 478 at 493.

It was submitted further that the cause of action was not a continuing one and that even if the submission of the Appellants that the cause of action here arose in July/August, 2013 was conceded, their action would still be statute barred as it was commenced in January, 2014.

The respondents argued further that negotiation

does not stop the running of the period of limitation as limitation law is a strict liability legislation. He referred to OGBAH VS B.D.U. JOS BRANCH (2009) 4 NWLR (PT. 1131) 352 at 376, EBOIGBE VS NNPC (1994) 5 NWLR (PT 347) 649, SANDA VS KAKUWA LOCAL COUNCIL (1991) 2 NWLR (PT 174) 379 and OKE VS OKE (2006) NWLR (PT 1008) 224.

Finally, it was submitted for the Respondents that the words used by the Legislature in the Public Officers Protection Act were plain and unambiguous and could as such only be subjected to the literal rule of interpretation. Learned counsel referred to DAUDU VS UNIVERSITY OF AGRICULTURE MAKURDI & ORS (supra) and submitted that some of the cases referred to by the Appellants were inapplicable.
He urged the Court to dismiss the appeal.

Courts would be deprived of the requisite jurisdiction to entertain his claim. See OLAGUNJU & ANOR VS. PHCN PLC (2011) LPELR-2556(SC) and INDEPENDENT NATIONAL ELECTORAL COMMISSION VS OGBADIBO LOCAL GOVERNMENT (2015) LPELR-24839 (SC).
For a determination of when the period of limitation sets in, the Court must determine the date of accrual of the cause of action. In simple language, a cause of action is a factual situation, the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a plaintiff to a remedy against a defendant. It consists of every fact, which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. That is, the fact or combination of facts which gave rise to a right to sue. It is a cause for action in the courts to determine disputed matters. See EGBE VS ADEFARASIN (1987) 1 NWLR (PART 47) 549, THOMAS VS OLUFOSOYE (1986) 1 NWLR (PART 18) 689 and DANTATA VS MOHAMED (2000) 7 NWLR (PART 664) 176. It is also well settled that the Court will only examine the originating processes of

the Claimant or Plaintiff in determining the accrual of the cause of action. See ADEYEMI VS OPEYORI (1976) 9-10 SC 31, TUKUR VS GOVT OF TARABA STATE (1997) 6 NWLR (PART 510) 549, OKOROMA VS UBA (1999) 1 NWLR (PART 587) 359 and MIN. FOR WORKS VS TOMAS NIG. LTD (SUPRA) at 772 and 789.
Before proceeding further, it is necessary to examine the provisions of the legislation in issue here, the Public Officers Protection Act (supra). Section 2(a) of the said Act provides thus:
2. 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-
(a) Limitation of Action 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.
It was argued that the 1st Respondent being an artificial person was not contemplated by the said Legislation and that the literal rule of interpretation should not have been deployed in constructing it. The Appellants instead urged us to consider the golden rule of interpretation. While the Appellants do have my sympathy, I am not persuaded in view of the position of the Apex Court, clearly stated in quite a number of decisions that persons within the context of the Public Officers Protection Act (supra) include artificial persons. See IBRAHIM VS JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1998) 14 NWLR (PT 584) 1 at 38,GOD BLESS EZENWATA (NIG) LTD VS. ODIOKU & ORS (2015) LPELR-24438(CA) and FAJIMOLU VS UNILORIN (2006) LPELR-7709(CA). Where the words used in a legislation are clear and unambiguous, the Courts have no business looking for what is not lost. They simply give the words their plain, ordinary grammatical meanings, unless doing so would result in

some absurdity. That is the literal rule. See THE NORTHERN ASSURANCE CO. LTD VS. WURAOLA (1969) LPELR-25562 (SC), UNION BANK LTD VS PROF. ALBERT OZIGI (1994) LPELR-3389(SC) and NIGERIAN ARMY V. AMINUN-KANO (2010) LPELR-2013 (SC).
Where the injury or damage is a continuing one, it would constitute an exception as the period of limitation would not run until the cessation of the damage or injury. See AREMO II VS. ADEKANYE (SUPRA) (2007) ALL FWLR (PT. 224) 2113, A.G. RIVERS STATE VS. A.G. BAYELSA STATE (SUPRA), OBUEKE VS. NNAMCHI (2012) 12 NWLR (PT. 1314) 327, ORIORIO VS. OSAIN (2012) 16 NWLR (PT. 1327) 650 and INEC VS. OGBADIBO LOCAL GOVT COUNCIL & ORS (supra).

From the record of appeal, the originating processes filed by the Appellants to initiate their action before the trial Court comprise the General Form of Complaint, Statement of facts, List of witnesses, List of documents to be relied on and Witnesses statements on oath, all on pages 1-58 of the record of appeal. The learned counsel for the Appellant succinctly made this point but contradicted himself when he submitted that the exhibits contained in the Counter-affidavit filed by the

Appellants in response to the Preliminary Objection of the Respondents, ought to have been considered by the learned Trial Judge. The said Counter-affidavit was not part of the originating documents and was rightfully excluded by the learned Trial Judge.

An examination of the entire facts disclosed herein shows that it would require quite a stretch to agree with the Appellants that the cause of action here involved a continuing wrong. Simply put, they were denied the right of first refusal in respect of the official accommodation they occupied despite the earlier representations made to them. That constituted their cause of action. It was sufficient to serve as a basis for an action against the Respondents. While the Respondents contended that in line with the decision of the trial Court, the Appellants were denied the opportunity of purchasing the said properties on the 16th September, 2009 which appeared logical, the Appellants argued before us that their cause of action crystallized between July and August, 2013 as contained in a document exhibited to their counter-affidavit.

Assuming that the Appellants were indeed right that their cause of

action arose in August, 2013, the action was commenced on 22nd, January, 2014. The limitation period pursuant to Section 2 of the Public Officers Protection Act (supra) is three months. It therefore follows that even if the accrual date submitted by the Appellants is accepted, their action would still be caught.

In the entire circumstances therefore, I resolve the sole issue for determination against the Appellants and in favour of the Respondents.
I find no merit in this appeal and it is accordingly dismissed.
Parties shall bear their respective costs.

IGNATIUS IGWE AGUBE, J.C.A.: I had been opportune to read in advance the erudite and well considered Judgment of my Learned Brother JOSEPH OLUBUNMI KAYODE OYEWOLE JCA and I am in total agreement with his reasoning and conclusion that the Learned Trial Judge properly evaluated the evidence of the Parties and came to the inevitable conclusion that the Appellants were not entitled to the Declaratory Reliefs sought.

I also have no difficulty in dismissing the Appeal for lacking in merit and affirm the Judgment of the Learned Trial Judge delivered on the 2nd

June, 2015 by Justice IBRAHIM, J., of the National Industrial Court, Enugu Judicial Division. Parties shall bear their respective costs.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA, just delivered. I agree with the reasoning and conclusion contained therein.
This appeal lacks merit and is hereby dismissed.

I abide myself by the consequential order that parties shall bear their respective costs.

Appearances:

Sir O.A.U. Onyema with him, Mrs. E.V. Nwozor and Mr. O. N. Ezelobe For Appellant(s)

V.C. Edeh For Respondent(s