NNAMANI & ANOR v. FRSC
(2020)LCN/13974(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, March 25, 2020
CA/E/349/2016
Before Our Lordships
Misitura Omodere Bolaji-Yusuff 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. NNEKA NNAMANI 2. AMOGE OKAGWE APPELANT(S)
And
FEDERAL ROAD SAFETY COMMISSION RESPONDENT(S)
RATIO
THE CONSEQUENCES OF CHALLENGING THE COMPETENCE OF AN ACTION FOR BEING STATUTE-BARRED
The law is trite that when an objection is raised challenging the competence of an action for being statute barred, it follows therefore that the jurisdiction of the Court to entertain the action is automatically in controversy. PER UMAR, J.C.A.
THE RATIONALE BEHIND THE JURISPRUDENCE OF PRE-ACTION NOTICE
The rationale behind the jurisprudence of pre-action notice is to enable the defendant know in advance the anticipated action and a possible amicable settlement of the matter between the parties, without recourse to the adjudication by the Court. It is a harmless procedure designed essentially to stop a possible litigation, thus saving money and time of the parties. See NIGERCARE DEVELOPMENT CO. LTD V. ADAMAWA STATE WATER BOARD & ORS (2005) LPELR – 1997 (SC).
Section 16(1) of the Federal Road Safety Commission Act (supra) provides as follows:
“No suit shall be commenced against the Commission on or before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Commission or the Corps by the intending plaintiff or his agent, and the notice shall clearly and explicitly state-
(a) the cause of action;
(b) the particulars of the claim;
(c) the name and place of abode of the intending plaintiff; and
(d) the relief which he claims.” PER UMAR, J.C.A.
THE INTENTION OF THE LEGISLATURE IN THE PUBLIC OFFICER (PROTECTION) ACT
On the other hand, the intention of the legislature in the Public Officer (Protection) Act is to provide protection for public officers, corporate or incorporated bodies in the discharge of their public assignment. See OFFOBOCHE V OGOJA LOCAL GOVERNMENT 2001 LPELR-2265 (SC). Section 2(a) of the Public Officers Protection Act (supra) provides as follows:-
“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.
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………” PER UMAR, J.C.A.
WHETHER OR NOT A PUBLIC OFFICER CAN CLAIM PROTECTION UNDER THE PUBLIC OFFICER (PROTECTION) ACT WHERE HE ACTS OUTSIDE THE SCOPE OF HIS AUTHORITY
By the proviso in Section 2(a) of the Act, a public officer cannot run under the cover of the Act, when acting in bad faith, or outside the limits of the law. Where a public officer acts outside the scope of his authority or without semblance of legal jurisdiction, he cannot claim the protection of the Act. See the case of HASSAN V. ALIYU & ORS. (2010) LPELR –1357 (SC). Section 2(a) of the Public Officer Protection Act, by it express and clear provisions limits its application to “an act 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 obvious and necessary implication of its limitation is that an act, neglect or default of a public officer that is not in pursuance or execution or intended execution of any Act, Law, Public duty or authority cannot be protected by the Public Officers Protection Act. See EKEOGU V ALIRI (1991) LPELR – 1079 (SC). PER UMAR, J.C.A.
THE CONSEQUENCES OF AN ACTION BEING STATUTE-BARRED
On the consequence of an action that is statute barred, the Supreme Court in the case of HASSAN V. ALIYU & ORS. (2010) LPELR – 1377 (SC) held as follows:
“When an action is statute-barred, the plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation had elapsed. An action commenced after the expiration of the statutory period within which an action must be brought is not maintainable. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being properly instituted before the Court. In effect, the right of the appellant to commence an action against the withdrawal and substitution of the 1st respondent is extinguished by operation of law – that is, Section 2(a) of the Public Officer Protection Law Cap 379 Laws of the Federation 1990. Egbe v. Adefarasin (1987) 1 NWLR pt. 47 pg. 1, Obiefuna v. Okoye (1964) 1 All NLR pg. 96 Adeosun v. Jibesin (2001) 11 NWLR pt. 724 pg. 290, Ibrahim v. Judicial Service Committee Kaduna State (1998) 14 NWLR pt. 584 pg. 1, Eboigbe v. NNPC (1994) 5 NWLR pt. 347 pg. 649, Odubeko v. Fowler (1993) 7 NWLR pt. 308 pg. 637.” Per ADEKEYE, J.S.C (Pp. 89-90, para. C). PER UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Enugu Division delivered by Hon. R. O. Dugbo-Oghoghorie on 11th May, 2016 wherein the trial Court upheld the Respondent’s Notice of Preliminary Objection challenging the Appellants’ suit for being statute barred.
BRIEF STATEMENT OF FACTS
The Appellants as Plaintiffs in the Court below commenced the suit which is the subject of the appeal vide originating summons dated 15th December, 2014 and filed on 17th December, 2014 claiming the following reliefs against the Respondent:
“a. A declaration that it is unconstitutional and ultra vires the Defendant to design, produce, issue or regulate the use of driver’s licence in Enugu State.
b. A declaration that Section 15 of the Federal Road Safety Commission (Establishment) Act 2007 is unconstitutional to the extent that it gives the Federal Road Safety Corps jurisdiction to operate on public highways in Enugu State other than Federal Trunk roads.
c. A declaration that Sections 5(g) and (h), and 10(2), 10(3) and
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10(4) of the Federal Road Safety Commission (Establishment) Act 2007 are unconstitutional to the extent that they (or any of them) purport to give functions to the Defendant and or to the Federal Road Safety Corps in relation to the driver’s licences or in relation to public highways in Enugu State.
d. A declaration that the seizure and or detention by the Defendant on 21 August 2014 of the driver’s licence of the 1st Plaintiff at Udi – Ozalla Road By-pass in Udi Local Government Area of Enugu State, which by-pass is not a Federal Trunk Road, is unconstitutional and unlawful.
e. A declaration that the detention by the Defendant of the Toyota RAV 4 model, with registration number SJ 542 AAA belonging to the 1st Plaintiff on 21 August 2014, and of the driver’s licence of the 1st Plaintiff, for reasons that were not disclosed to the 1st Plaintiff, and at Udi – Ozalla Road By-pass in Udi Local Government Area of Enugu State, which by-pass is not a Federal Trunk road, is unconstitutional and unlawful.
f. Thirty Five Thousand Naira (N35, 000) as special damages being money unlawfully collected by the Defendant from the 1st Plaintiff before the
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Defendant released her Toyota RAV 4 model, with registration number SJ 542 AAA to her.
g. Five Million Naira (N5, 000, 000) being damages for the unlawful conduct of the Defendant.
h. Twenty Five Million Naira (N25, 000, 000) aggravated damages for arbitrary and oppressive conduct of the Defendant.
i. And such further or other order(s) as this Honourable Court may deem fit to make.”
The case of the 1st Appellant as gleaned from the 19 paragraph affidavit in support of the Originating Summons is that at about 8.00 am on 21 August, 2014 while driving along Udi – Ozalla road by-pass, with the 2nd Appellant and one Mr. Chijindu Ikeyi, officers of the Respondent directed her to stop and park which she did in compliance with the said order. The 1st Appellant stated further that the officers of the Respondent demanded for her driver’s licence which she handed over to the officer and the latter walked away without saying a word to her. She deposed further in her affidavit that the officer returned a while later with another officer, entered into her vehicle and directed her to drive away from where she was initially asked to
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park without returning her driver’s licence.
It is the case of the 1st Appellant that she demanded to know the offence(s) she had committed and/or why her driver’s licence was withheld and why she was asked to drive away from their route but the officers of the Respondent refused to answer any of her questions and instructed her to drive the vehicle to where they would direct. She deposed further in her affidavit that she resolved to drive to Udi Police Station, with the officers still inside the vehicle, to make a complaint to the Police. According to her, as she was driving to the police station, one of the officers of the Respondent forcibly stopped the vehicle and assaulted the 2nd Respondent in the process and shortly afterwards, other officers of the Respondent arrived with another vehicle and forced her to drive to the office of the Respondent at Udi. She stated that while at the Respondent’s officer at Udi, the officers of the Respondent issued a ticket to her containing fabricated offences, including driving without a seat belt and use of a forged driver’s licence for which she was asked to pay a fine of Thirty Five
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Thousand Naira. She further stated that the Respondent detained her vehicle at its office and demanded that she pay the aforestated sum before her vehicle would be released to her. She deposed to the fact that she paid the sum to a bank account indicated by the officers of the Respondent for her vehicle to be released to her but the said officers are yet to return her driver’s licence to her till the date of swearing to the said affidavit.
The Respondent filed a 30 paragraph affidavit to the 1st Appellant’s affidavit. (See pages 28 – 34 of the record of appeal). The kernel of the Respondent’s counter affidavit is that the driver’s licence being paraded by the 1st Appellant was not issued by the Enugu State Government or any Government of any State in Nigeria though the said driver’s licence has “Anambra State” written on its face as the state of issue. It is the case of the Respondent that the 1st Appellant’s driver’s licence is fake and purposely forged by the 1st Appellant for the purpose of circumventing the law. The Respondent stated further that the primary reason for flagging the 1st
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Appellant down was because she was driving at the highway without wearing her seat belt and for these reasons she was asked to pay a fine of N35, 000.00.
The Respondent’s filed a Notice of Preliminary Objection challenging the jurisdictional competence of the Court below to entertain the Appellants’ action. (See pages 62 – 68 of the record of appeal). The grounds upon which the preliminary objection was predicated are that:
“1. The plaintiff failed, contrary to the provisions of S.16(1) Federal Road Safety Commission (est.) Act 2007 to serve the defendant with a PRE-ACTION Notice prior to the commencement of this suit.
2. The plaintiffs’ action is Statute Barred having regard to the provisions of Section 2 (b) Public Officers Protection Act Cap, LFN 2004.”
During the hearing of the Application, learned counsel to the Respondent abandoned the 1st ground of the Notice of Preliminary Objection and the application was decided on whether the Appellants’ action was statute barred in the light of the provisions of Section 2(b) of the Public Officers Protection Act, 2004. The trial Court in a considered
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Ruling delivered on 11th May, 2016, struck out the Appellants’ suit for being statute barred.
Dissatisfied with the decision of the trial Court, the Appellants invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 24th May, 2016 and filed on the same date. The grounds of appeal albeit without their particulars are hereunder reproduced as follows:
“Ground 1
The trial Court erred in law when it held that the Suit was statute barred under the Public Officers Protection Act having been filed on 17 December 2014, notwithstanding that the mandatory pre-action notice served on the Respondent by the Appellant only expired on 21 September 2014.
Ground 2
The trial Court erred in law when it held that the limitation period prescribed by Section 2 of the Officer Protection Act availed the Respondent, notwithstanding that the complaint of the Appellant was that the Respondent acted unconstitutionally and outside the colour of its statutory duty.
Ground 3
The trial Court erred in law when it failed to consider and determine points of law raised by the Appellants that (a) a public officer whose act is
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challenged as unconstitutional and unlawful is not entitled to the protection provided by Section 2 of the Public Officers Protection Act and (b) the Respondent’s notice of preliminary objection dated 4 May 2015 (the “Preliminary Objection”) constituted abuse of Court process.”
In line with the Rules of this Court, the parties filed and exchanged their Briefs of argument. The Appellants’ Brief of Argument is dated 22nd September, 2016 and filed on the same date. The Appellants also filed a Reply Brief dated 4th June, 2018 and filed on the same date. The said Briefs were settled by JOHN ONAH ESQ, who at paragraph 3 of the Appellants’ Brief of argument distilled three issues for the determination of this appeal to wit:
“1. Whether the trial Court was right when it held that the Suit was statute barred under the Public Officers Protection Act (“POPA”) for having been filed on 17 December 2014 notwithstanding that the mandatory pre-action notice served on the Respondent by the Appellant only expired on 21 September 2014. [Distilled from ground 1 of the Notice of Appeal.]
2. Whether the trial
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Court was right when it held that the limitation period prescribed by S.2 of POPA availed the Respondent whose acts were being challenged in the Suit as unconstitutional and unlawful. [Distilled from ground 2 of the Notice of Appeal.]
3. Whether the trial Court was right when it failed to consider and determine the points of law made by the Appellants on the applicability of S. 2 of POPA and whether the failure did not occasion a miscarriage of justice to the Appellants. [Distilled from ground 3 of the Notice of Appeal.]”
The Respondent’s Brief of argument is undated but filed on 21st May, 2018. The said Notice of Appeal was settled by IFEATU OBI OKOYE who at paragraph 3 distilled two issues for the determination of this appeal to wit:
“1. Whether the trial Court was right in holding that the Appellants action was statute barred having been initiated more than 3 months from the date the cause of action arose.
2. Whether therefore, the trial Court was right in circulating the 3 months limitation period to commence on the 21st of August 2014 when the incidence giving rise to the Appellants right of action occurred rather
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than the 21st of September 2014 when the pre-action notice expired.
The appeal was heard on 11th March, 2020 wherein Counsel adopted their respective Briefs and made oral adumbrations in respect of their various contentions in this appeal.
APPELLANTS’ ARGUMENTS
On issue No. 1, Learned counsel to the Appellants’ submitted that the trial Court erred in law when it held that the suit was statute barred under Section 2(a) of the Public Officer Protection Act having been filed on 17th December, 2014 notwithstanding that the mandatory pre-action notice served on the Respondent by the Appellant only expired on 21 September 2014. He referred this Court to Section 16(1) of the Federal Road Safety Commission Act 2007 and submitted that same suspended the Appellants’ right of action. He submitted further that from the said section of the FRSC Act (supra), the Appellants cannot maintain a legal action against the Respondents. He referred this Court to the case of INTERNATIONAL TOBACCO COMPANY PLC. V. NAFDAC (2007) LPELR – 8442 (CA). He submitted that Section 16(1) of the FRSC Act and Section 2(a) of the POPA ought to be read
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together.
On issue No. 2, learned counsel to the Appellants submitted that the period of limitation prescribed by Section 2 of the POPA does not avail the Respondent with respect to the suit because the acts of the Respondent are challenged as being unconstitutional and unlawful. He argued that one of the exceptions of the protection offered by Section 2(a) of the POPA is that the protection does not avail a public officer whose act is unconstitutional and unlawful. He referred this Court to the case of ATTORNEY – GENERAL OF RIVERS STATE V. ATTORNEY – GENERAL OF BAYELSA STATE & ANOR (2012) LPELR – 9336 (SC).
On issue No. 3, counsel argued that it is the duty of the Court to consider and determine issues placed before it. He referred this Court to the case of DINGYADI V. INEC (2010) 6 KLR (Pt. 283) 1877, 1892. He submitted that in the suit and with respect to the Objection of the Respondent, the Appellants in opposition to the objection raised issues among others that a public officer whose act is challenged as unconstitutional and unlawful is not entitled to the protection provided by Section 2 of the Public Officers Protection Act
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and that the objection constituted an abuse of Court process. He further submitted that the trial Court failed to consider and determine these issues which according to counsel amounted to a denial of the Appellants’ right to fair hearing and occasioned a miscarriage of justice. He referred this Court to the case ofUZUDA & ORS V. EBIGAH & ORS (2009) LPELR – 3458 (SC). On the duty of Court to consider all the issues submitted by parties, counsel referred this Court to the case of OPUIYO V. OMONIWARRI (2007) 6 SCNJ 131, 138.
On the whole, he urged this Court to resolve all the issues distilled in favour of the Appellants and allow this appeal.
RESPONDENT’S ARGUMENTS
On the two issues distilled and argued together by counsel to the Respondent, he submitted that on the 21st August, 2014, the 1st Appellant’s vehicle was impounded and his Driver’s Licence seized by the officers of the Respondent in the exercise of their statutory duties as conferred on them by the Federal Road Safety Act 2007 and the enabling Regulation of 2012 made pursuant to the Act. He submitted further that on the date of
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the incident, the Appellants’ Solicitors served the Respondent with a pre-action notice but the action was commenced on the 17th of December 2014 i.e. more than 3 months from the date of the incident which occurred on the 21st of August 2014. It is the submission of counsel that in the circumstances of this case, the Appellants’ right of action on the face of the originating summons commenced on the 21st of August 2014 and expired on 21st November 2014. He referred this Court to the decision of the Supreme Court in the case of CITY ENGINEERING NIG. LTD. V. F.H.A (1997) A NWCR (pt. 520) 224.
APPELLANTS’ REPLY BRIEF
In the Appellants’ reply to the Respondent’s Brief, learned counsel to the Appellants at paragraph 3.1 – 3.8 of the said Reply Brief made concerted efforts to distinguish the case of CITY ENGINEERING NIG. LTD V F.H.A (supra) heavily relied on by the Respondent and submitted that the said case is not applicable to the issues in the instant appeal. He therefore urged this Court to discountenance the submissions of the Respondent and allow this appeal.
RESOLUTION
I have carefully examined the
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issues distilled by the parties counsel. Generally, a Court ought to confine itself to the issues raised by the parties in the determination of matters. However, where the issues are pluralized, or fragmented, or couched in such a manner as to obscure the crucial and real issues that would properly, adequately and finally determine the dispute, the Court would be entitled to distil such or other issues from the Grounds of Appeal filed. In such a situation, the Court of Appeal has the power and discretion to formulate issues from the Grounds of Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66.
In the resolution of this appeal I consider the below issue as apt and germane for the determination of the appeal to wit:
“Whether the trial Court was right to have dismissed the Appellants’ suit for being statute barred?”
The law is trite that when an objection is raised challenging the competence of an action for being statute barred, it follows therefore that the jurisdiction of the Court to entertain the action is automatically in controversy.
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It is not in dispute that the Respondent is an agency of the Federal Government of Nigeria thus, the Public Officers Protection Act applies to it as a public body corporate of government. The parties are also not at loggerhead as to when the Appellants’ cause of action arose or when the Action was initiated, however, the parties have joined issues as to whether the Appellants’ action is statute barred in the light of the provisions of Section 2(a) of the Public Officers Protection Law and Section 16(1) of the Federal Road Safety Commission Act 2007?
The incident leading to the institution of the suit at the trial Court happened on the 21st August, 2014. On the same date, the Appellants’ counsel served the Respondent with a pre-action notice informing the Respondent of the Appellants’ intention to ventilate their grievances in Court in respect of what transpired between the Appellants and the Respondent’s officers. On the expiration of the one month pre-action notice, the Appellants on the 17th December 2014 filed the suit at the registry of the Court below. The question that begs for answer is whether time begins to run from the 21st August 2014
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i.e. when the 1st Appellant’s car was impounded and her driver’s licence seized by the officers of the Respondent or on the 21st September 2014 when the one month pre-action notice served on the Respondent by the Appellants’ solicitors expired?
The rationale behind the jurisprudence of pre-action notice is to enable the defendant know in advance the anticipated action and a possible amicable settlement of the matter between the parties, without recourse to the adjudication by the Court. It is a harmless procedure designed essentially to stop a possible litigation, thus saving money and time of the parties. See NIGERCARE DEVELOPMENT CO. LTD V. ADAMAWA STATE WATER BOARD & ORS (2005) LPELR – 1997 (SC).
Section 16(1) of the Federal Road Safety Commission Act (supra) provides as follows:
“No suit shall be commenced against the Commission on or before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Commission or the Corps by the intending plaintiff or his agent, and the notice shall clearly and explicitly state-
(a) the cause of
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action;
(b) the particulars of the claim;
(c) the name and place of abode of the intending plaintiff; and
(d) the relief which he claims.”
On the other hand, the intention of the legislature in the Public Officer (Protection) Act is to provide protection for public officers, corporate or incorporated bodies in the discharge of their public assignment. See OFFOBOCHE V OGOJA LOCAL GOVERNMENT 2001 LPELR-2265 (SC). Section 2(a) of the Public Officers Protection Act (supra) provides as follows:-
“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.
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
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thereof………”
Where the legislature therefore has used in an enactment language which is clear and devoid of any ambiguity or leaves no doubt as to its meaning, the Court has no alternative but to construe the enactment in the same vein as the expressed intention. The Act complained of by the Appellants occurred on the 21st August 2014 while the action was instituted on the 17th December, 2014 more than three months as provided for in Section 2(a) of the Public Officer Protection Act. The Act provides that “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…” and not “that the action shall be commenced within three months after the service of a pre-action notice on the Commission”. I am of the firm view that everything that has to be done by the Appellants to properly ventilate their grievances inclusive of the service of the pre-action notice has to be done within the three months after the act, neglect and default complained of. Both Section 2(a) of the Public Officers Protection Act
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(supra) and Section 16(1) of the Federal Road Safety Commission Act (Supra) contain conditions that must be fulfilled by the Appellants when instituting an action against the Respondent. Endorsing the submissions of counsel to the Appellants is like brushing aside the provision of Section 2(a) of the Public Officers Protection Act. I am of the firm view that in as much as the Appellants were mandated by Section 16(1) of the Federal Road Safety Commission Act (Supra) to serve the Commission with one month pre-action notice in writing, they were still expected to take cognizance of the provisions of Section 2(a) of the Public Officers Protection Act requiring the institution of their action within three months of the act complained of. I am of the view that trying to comply with Section 16(1) of the FRSC Act does not extend the time within which the cause of action arose and when the Appellants were expected in law to have instituted their action.
The Appellants’ counsel also submitted that the act of the Respondent was unlawful because its officers acted outside the colour of their office or their statutory or constitutional duty; therefore the
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protection under Section 2(a) of the Public Officers Protection Act (supra) is inapplicable. The law is trite that the protection of an officer under the POPA is not absolute. By the proviso in Section 2(a) of the Act, a public officer cannot run under the cover of the Act, when acting in bad faith, or outside the limits of the law. Where a public officer acts outside the scope of his authority or without semblance of legal jurisdiction, he cannot claim the protection of the Act. See the case of HASSAN V. ALIYU & ORS. (2010) LPELR –1357 (SC). Section 2(a) of the Public Officer Protection Act, by it express and clear provisions limits its application to “an act 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 obvious and necessary implication of its limitation is that an act, neglect or default of a public officer that is not in pursuance or execution or intended execution of any Act, Law, Public duty or authority cannot be protected by the Public Officers Protection
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Act. See EKEOGU V ALIRI (1991) LPELR – 1079 (SC). It is therefore necessary to find out if the Respondent’s actions of impounding the 1st Appellant’s vehicle and the seizure of her driver’s licence were in pursuance of or execution or intended execution of an Act or Law or of a public duty or authority. I have considered the provisions of Section 10(4) (5h) and 28 of the FRSC Act 2007 and I am of the considered opinion notwithstanding the propriety of the actions of the Respondent’s officers, their actions of the said officers were in execution of the aforementioned sections of the FRSC Act 2007 and the Appellants ought to have challenged same within the time prescribed under Section 2(a) of the POPA. For clarity purpose, Section 10(5h) of the FRSC Act provides that:
“10(5) in the discharge of the functions of the Corps by or under this Act and notwithstanding the provision of Section 18 (1) of this Act, a member of the Corps shall have power to-
(h) Impound any vehicle by which an offence under this Act is reasonably suspected to have been committed (Underlining mine for emphasis)
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Section 28 of the same Act provides that:
28. (1) A member of the Corps may demand and retain the driving licence and/or vehicle documents of a traffic offender to secure his compliance with payment of fine or appearance in Court. On the payment of such fine or appearance in Court the driving licence and/or vehicle document shall be returned to the driver forthwith.
(2) Where a driving licence is retained, whether or not pursuant to this section, the member of the Corps retaining the licence shall issue a notice of offence sheet indicating the seizure and inform the person surrendering the licence of the address of the office of the Corps at which it may be reclaimed. (Underlining mine for emphasis)
The effect of the above sections is that since it cannot be said that the actions of the officers of the Respondent was outside the scope of their authority or without the semblance of legal justification, the Appellants’ cause of action accrued on 21/8/2014 i.e. the date when the 1st Appellant’s car was impounded and her driver’s licence withheld by the officers of the Respondent and having filed the suit which is the subject matter of the instant appeal
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on 17/12/2014, about four months outside the statutory period of 3 months stipulated under Section 2(a) of the Public Officer Protection Act (supra), the case of the Appellants is statute barred and the trial Court is right to have dismissed same.
On the consequence of an action that is statute barred, the Supreme Court in the case of HASSAN V. ALIYU & ORS. (2010) LPELR – 1377 (SC) held as follows:
“When an action is statute-barred, the plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation had elapsed. An action commenced after the expiration of the statutory period within which an action must be brought is not maintainable. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being properly instituted before the Court. In effect, the right of the appellant to commence an action against the withdrawal and substitution of the 1st respondent is
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extinguished by operation of law – that is, Section 2(a) of the Public Officer Protection Law Cap 379 Laws of the Federation 1990. Egbe v. Adefarasin (1987) 1 NWLR pt. 47 pg. 1, Obiefuna v. Okoye (1964) 1 All NLR pg. 96 Adeosun v. Jibesin (2001) 11 NWLR pt. 724 pg. 290, Ibrahim v. Judicial Service Committee Kaduna State (1998) 14 NWLR pt. 584 pg. 1, Eboigbe v. NNPC (1994) 5 NWLR pt. 347 pg. 649, Odubeko v. Fowler (1993) 7 NWLR pt. 308 pg. 637.” Per ADEKEYE, J.S.C (Pp. 89-90, para. C)
Having considered the Appellants’ issues 1 and 2 under the sole issue distilled by this Court, the Appellants’ issue 3 is of no moment and therefore becomes an academic exercise which is incapable of determining the major controversies between the parties in this appeal.
On the whole, I hereby resolve the sole issue distilled by this Court in favour of the Respondent and against the Appellants. I find no merit in this appeal, same is hereby dismissed. The decision of the Federal High Court, Enugu Division delivered by Hon. R. O. Dugbo-Oghoghorie on 11th May, 2016 is hereby affirmed.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.
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JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal has no merit and it is accordingly dismissed.
I adopt the consequential orders in the lead judgment as mine.
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Appearances:
JOHN ONAH ESQ. For Appellant(s)
IFEATU OBI OKOYE ESQ, with him, JOYCE UGU OKOCHI (MRS) For Respondent(s)
