NNORU NIGERIA LIMITED v. THE NIGERIAN CUSTOMS SERVICES BOARD (2019)

NNORU NIGERIA LIMITED v. THE NIGERIAN CUSTOMS SERVICES BOARD

(2019)LCN/13297(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of May, 2019

CA/L/869/2014

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

NNORU NIGERIA LTD Appellant(s)

AND

THE NIGERIAN CUSTOMS SERVICES BOARD Respondent(s)

RATIO

FACTOR TO DETERMINE WHETHER AN ACTION IS STATUTE BARRED

The law is now elementary that in the determination of the issue whether an action brought before a Court of law is statue barred or not, the Court is to look and consider the facts as set out in the statement of claim by the plaintiff or claimant along with the initiating process for the commencement of the action, as the relevant and material documents or processes for the purpose.
The Court would then look at the relevant limitation statute to see the period of time prescribed therein within which such action should be commenced. From the facts averred in the statement of claim, the Court would find out when the cause of the action arose and accrued to the plaintiff/claimant and then look at the date on the originating process, usually the writ of summons, as to when the action was in fact, initiated, brought or filed in the Court. Where the period between the date the cause of action arose and accrued to the plaintiff/claimant and the date when the action was initiated or brought, is beyond, more than or outside the period of time stipulated in the limitation statute for the commencement of the action, then the action will be statute barred or barred by the statute for being initiated in contravention of the period of time limited by the statute. See generally Egbe v. Adefarasin (1987) 1 SCNJ, 1; Adimora v. Ajufo (1988) 6 SCNJ, 18; Sanda v. Kukawa L.G. (1991) 1 NWLR (174) 379; Eboigbe v. NNPC (1994) 5 NWLR (346) 649; Iweka v. SCOA (2000) 7 NWLR (664) 325; Aremo II v. Adekanye (2004) ALLFWLR (224) 2113; NPA v. Ajobi (2006) 7 SC (Pt. 1) 23; JFS Inv. Ltd v. Brawal Line Ltd (2010) 18 NWLR (1225) 495. PER GARBA, J.C.A.

DEFINITION OF A CAUSE OF ACTION

The law is also known that a cause of action is a fact or combination of facts which if proved would entitle a party to judicial remedy against another and so the moment such a fact or facts occurs or occur to enable a party to approach the Court of law for a remedy, the party has a cause of action which arises. Bello v. A. G., Oyo State (1986) 5 NWLR (45) 825; Thomas v. Olufosoye (1986) 1 NWLR (18) 669; Egbue v. Araka (1988) 3 NWLR (1984) 598; Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (102) 122; Oshoboja v. Amuda (1992) 6 NWLR (250) 650; Bright Motors Ltd v. Honda Motors Ltd (1998) 12 NWLR (577) 230. PER GARBA, J.C.A.

CONDITIONS FOR THE APPLICABILITY OF SECTION 2(A) OF THE PUBLIC OFFICERS (PROTECTION) ACT

In the case of Abba v. J.A.M.B. (2014) LPELR-24205 (CA) it was held that: –
?The conditions for the applicability of Section 2(a) of the Public Officers (Protection) Act are as follows: – (a) It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law;
(b)The acts done by the person, in respect of which the action is commenced, must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority.?
See also Nahuche v. Nahuche (2016) LPELR-41809(CA); Akwa Ibom State C.S.C v. Akpan (2013) LPELR-22105 (CA); Ekeogu v. Aliri (1990) 1 NWLR (126) 345; Aroyame v. Gov., Edo State (2007) LPELR-8770 (CA).
Since there is no dispute on these two conditions for the applicability of the provisions of Section 2(a) of POPA to the case of the Appellant, the provisions are apparently applicable. PER GARBA, J.C.A.

THE CONSEQUENCE OF STATUTE OF LIMITATION

The consequence of a limitation statute or law is that the right to use the judicial process of a Court of law; by way of a legal action, for the enforcement of a right must be exercised within the prescribed and limited period of time or one holds his peace forever as he would be left with a right of action which is barren or empty since it cannot be enforced through the judicial process of a court of law.Egbe v. Adefarasin (supra); Sanda v. Kukawa L.G. (supra); SPDCN Ltd v. Farah (1995) 3 NWLR (382) 148; Ogunko v. Shelle (2004) 6 NWLR (868) 17; Osun State Govt. v. Danlami Nig. Ltd (2007) ALL FWLR (365) 438; Amadi v. INEC (2013) 4 NWLR (1345) 595; Ogbimi v. Ololo (1993) 7 SCNJ (Pt. II) 447. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A.(Delivering the Leading Judgment): By way of Writ of Summons dated and filed on 21st May, 2013, along with a Statement of Claim, the Appellant instituted the Suit No. FHC/L/CS/694/2013 against the Respondent before the Federal High Court (Lower Court), and claimed as follows:
?a. A declaration that short listing of the two containers in the gazette as Overtime/Abandoned goods without notice to the plaintiff, where the import duties have been fully paid was wrongful.
b. A declaration that the sale of the two containers by the Committee without notice to the plaintiff, where the import duties have been fully paid was wrongful.
c. The sum of $34,400.00 (Thirty-four Thousand Four Hundred US Dollars) or its Naira equivalent calculated at NGN160.00 per US Dollar exchange rate, as a compensation for the cost of the goods and freight.
?d. Interest on the sum of $34,400.00 (Thirty-four Thousand Four Hundred US Dollars) or its Naira equivalent at the rate of 24% per Annum, compounded annually from 31st August, 2009 until judgment and thereafter at the rate of 10% per Annum until the final liquidation

of the judgment sum.
e. A refund of the sum of NGN1,442,491.00 (One Million, Four Hundred and Forty Two Thousand, Four Hundred and Ninety-One Naira), being the total amount of import duties paid on the goods in the two containers.
f. Interest on the sum of NGN1,442,491.00 (One Million, Four Hundred and Forty Two Thousand, Four Hundred and Ninety-One Naira) at the rate of 24% per Annum, compounded annually from 31st August, 2009 until judgment and thereafter at the rate of 10% per Annum until the final liquidation of the judgment sum.
g. The sum of NGN5,000,000.00 (Five Million Naira) as general damages and loss of profit/income suffered by the Plaintiff as result of the sale of the two containers by the Committee.
h. The sum of NGN5,000,000.00 (Five Million Naira) being the cost of instituting this action.
i. Any other Order or further Orders as this Honourable Court may deem fit to make in the circumstances.?

In reaction to the claims, the Respondent caused a Notice of Preliminary objection to be filed on 24th March, 2014 challenging the competence of the action on two (2) grounds that no leave was obtained for service out of

jurisdiction and that the action was statute barred.

On 26th June, 2014, the Lower Court delivered a concise Ruling on the objection by the Respondent as follows: –
?RULING
The Court read the instant process in which PW1 testified and was not cross examined. However the Defendant, the Nigerian Custom Service Board filed a Preliminary Objection that the action is incompetent in that no leave to serve was obtained, and secondly the action is statute barred.
This Court shall state quickly and without any formality that the Plaintiff/Respondent gave the Applicant 30 days within which to appear in this suit.
Although no leave to serve in Abuja was obtained, the worst case scenario in the circumstances of this case is to set aside the service. The principle in the case of MV ARABELLA V NAIC (2008) Vol. 34 NSCQR pt 11 page 1091 @ 1095 should be understood within the con of the 1976 Federal High Court Rules then.
However, on the second leg of the objection, this Court agrees entirely with submission of Mr. E. B. Ogunlowo that by dint of Section 2(a) of the Public Officers Protection Act Cap P41 LFN 2004 and the cases of

Mr. M. A. D. Ukiri v FCSC & Anor (2011) All FWLR (Pt 577) 783 @ 786, CBN v Oladele Anor & 2 Ors 2011 FWLR (Pt 558) 806 @ 812. The case is statute barred, the distinction drawn by Mr. Anayo learned counsel to the Plaintiff cannot be correct.
The action is statute bared, same be and is hereby dismissed.
Court: No order as to cost.
Signed
HON. JUSTICE I. N. BUBA
JUDGE
26/06/2014?

Aggrieved by the above decision, the Appellant brought this appeal by the Notice of Appeal dated 10th July, 2014 on two (2) grounds from which the same number of issues were raised in the Appellant?s brief filed on 31st October 2014, deemed on 9th April, 2018 when Appellant was granted leave to raise fresh issue in the appeal. The issues are as follows:-
?1. Whether or not the learned trial Judge erred in law when it came to the conclusion that Section 2(a) of the Public Officer Protection Act was applicable to the instant case?
2. Whether or not the learned trial Judge erred in law, to have held that this action is Statute barred without recourse to the Limitation Period provided in the enabling Statute

The Respondent did not file a brief in the appeal even though duly served with all the material processes of the appeal including the Appellant brief and Hearing Notice for the hearing of the appeal. The Respondent was not represented at hearing.

The Appellant?s submissions on Issue One (1) are to the effect that the provisions of Section 2(a) of the Public Officer (Protection) Act, (POPA) do not apply to the Appellant?s case so as to render it statute barred since it was not made applicable by the Customs and Excise Management Act (CEMA) and the Nigeria Customs Service Board Act (NCSB Act) which are independent statutes. Nwosu v. I. S. E. S. A. (1990) 4 SC, 71, (1990) 2 NWLR (135) 688 and Cotecna Int. Ltd. v. Churchgate Nig. Ltd (2010) 18 NWLR (1225) 346 were referred to and the Court is urged to so hold.

On Issue Two (2), it is submitted that the provisions of CEMA and NCSB Act do not render the Appellant?s action statute barred since it was commenced within seven (7) years as provided in Section 176(3) of CEMA. Ukiri v. FCSC (2011) ALLFWLR (577) 783 was cited on how to determine whether an action is statute barred or not and the

Court is urged to hold that the Appellant?s action is not statute barred. Sections 6 (1), (2) and 9 of the NCSB Act were also referred to.

Resolution
The law is now elementary that in the determination of the issue whether an action brought before a Court of law is statue barred or not, the Court is to look and consider the facts as set out in the statement of claim by the plaintiff or claimant along with the initiating process for the commencement of the action, as the relevant and material documents or processes for the purpose.
The Court would then look at the relevant limitation statute to see the period of time prescribed therein within which such action should be commenced. From the facts averred in the statement of claim, the Court would find out when the cause of the action arose and accrued to the plaintiff/claimant and then look at the date on the originating process, usually the writ of summons, as to when the action was in fact, initiated, brought or filed in the Court. Where the period between the date the cause of action arose and accrued to the plaintiff/claimant and the date when the action was initiated or brought, is

beyond, more than or outside the period of time stipulated in the limitation statute for the commencement of the action, then the action will be statute barred or barred by the statute for being initiated in contravention of the period of time limited by the statute. See generally Egbe v. Adefarasin (1987) 1 SCNJ, 1; Adimora v. Ajufo (1988) 6 SCNJ, 18; Sanda v. Kukawa L.G. (1991) 1 NWLR (174) 379; Eboigbe v. NNPC (1994) 5 NWLR (346) 649; Iweka v. SCOA (2000) 7 NWLR (664) 325; Aremo II v. Adekanye (2004) ALLFWLR (224) 2113; NPA v. Ajobi (2006) 7 SC (Pt. 1) 23; JFS Inv. Ltd v. Brawal Line Ltd (2010) 18 NWLR (1225) 495.

Bright Motors Ltd v. Honda Motors Ltd (1998) 12 NWLR (577) 230.

From the facts pleaded in paragraphs 3, 4, 5, 6, 7, 8 and 9 of the statement of claim, the cause of action in the Appellant?s case was the auctioning, by the officers of the Respondent, of the two (2) containers imported by the Appellant, on or about the 23rd March, 2010 and it accrued on that day since the Appellant was aggrieved by the auction, said to be without notice to the Appellant which if proved, would have entitled it to a judicial remedy against the Respondent. The Appellant?s cause of action for the purpose of the auction of the containers imported by the Appellant arose and accrued to it on or by the 23rd March, 2010. By the date on the writ of summons and statement of claim, as stated at the beginning of this judgement, the Appellant commenced or initiated the action before the Lower Court on the 21st May, 2013.
Section 2(a) of the POPA which the Respondent?s objection was predicated and the Ruling of the Lower Court based on, 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 provision shall have effect: –
(a)The action prosecution, or proceeding shall not lie or 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.?
In CBN v. Amao (2011) ALL FWLR (558) 806, (2010) 16 NWLR (1219) 271, the Apex Court dealing with application and operation of these provisions, had stated that: –
?By provisions of Section 2(a) of the Public Officers (Protection) Act (Cap 379) Laws of the Federation of Nigeria, 1990, an action against public officer in respect of any act done in pursuance or execution of any act or law of public duty or default on same can only be commenced within three months next after the act, neglect or default complained of except in a case of continuance of damage or injury in which the person aggrieved must institute the action within

three months next after cessation of the damage or injury complained of.?
See also Ibrahim v. JSC, Kaduna State (1998) 14 NWLR 1; Onadeko v. UBN, Plc (2005) 4 NWLR (916) 440; Fajimolu v. Univ. of Ilorin (2007) 2 NWLR (1017) 74; Egbe v. Yusuf (1992) 1 NWLR (245) 1;Eboigbe v. NNPC (supra); Odubeko v. Fowler (1993) 7 NWLR (308) 637; Oke v. Oke (2006) 4 NWLR (1008) 224; Ezerebo v. IGP (2008) LPELR-8531; Egbe v. Adefarasin (supra).
?In the Appellant?s case, there was no dispute before the Lower Court on whether the Respondent was a public officer within the purview of the provisions of Section 2(a) of POPA to who or whom the provisions are applicable. In addition, no issue was joined by the parties that the Committee or Officers of the Respondent were acting or acted in pursuance of a public duty or in the due discharge of the public duty or authority of the Respondent when and in auctioning the Appellant?s containers. In the case of Abba v. J.A.M.B. (2014) LPELR-24205 (CA) it was held that: –
?The conditions for the applicability of Section 2(a) of the Public Officers (Protection) Act are as follows: –

(a) It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law;
(b)The acts done by the person, in respect of which the action is commenced, must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority.?
See also Nahuche v. Nahuche (2016) LPELR-41809(CA); Akwa Ibom State C.S.C v. Akpan (2013) LPELR-22105 (CA); Ekeogu v. Aliri (1990) 1 NWLR (126) 345; Aroyame v. Gov., Edo State (2007) LPELR-8770 (CA).
Since there is no dispute on these two conditions for the applicability of the provisions of Section 2(a) of POPA to the case of the Appellant, the provisions are apparently applicable.
?The complaint of the Appellant?s Counsel is that POPA is a general statute while the NCSB Act and CEMA are special statutes which take priority and precedence in application. Learned Counsel is right as the law is that ?generalibus specialibus non-derogant? meaning that special provisions have precedent over general

provisions. In Orubu v. NEC (1988) 12 SCNJ, 254, it was held by the Apex Court that a statute which makes special provisions in relation to a matter prevails over another which makes general provisions in regard to those matters. See also Ojemen v. Momodu II (1995) 6 NWLR (403) 583; Udeh v. FRN (2001) 5 NWLR (705) 312; Nig. Navy v. Garrick (2006) ALLFWLR (315) 45; Jack v. Univ. of Agric., Makurdi (2004) 117 LRCN, 3784 @ 3798; Ardo v. Nyako (2014) ALLFWLR (744) 130 @ 159.
POPA is an enactment or statute which makes general provisions for the protection of public officers including officers of the Respondent, in the discharge of their official duties or execution of any law or exercise of their public authority, from being sued after the expiration of the period of three (3) months period stipulated therein.
However, the NCSB Act is a specific and special legislation which established, govern and regulate the activities of the Respondent in the discharge of its official duties and execution of its public authority. In Section 6(1) the Act provides that: –
?6. Limitation of Actions
(1)Notwithstanding anything to the contrary contained in

other law, no action shall be instituted against the Board in respect of any act, neglect, or default done or omitted to be done by any officer, servant or agent of the Board in his capacity as an officer, servant or agent of the Board with regard to the regulations made pursuant to Section 9(1)(b) of this Act unless it is commenced within three months next after the act or negligence complained of, or in case of continuing damage or injury, within three months next after the ceasing thereof.?
Plainly, clearly and expressly, the NCSB Act in these provisions prescribed and imposed a limitation of the time within which a legal action is to be and can be validly and properly instituted, initiated or commenced against the Respondent in respect of any act, neglect or default done or omitted to be done by any of its officers, servant or agent in his official capacity as such officer, servant or agent. The period of time limited for the commencement of any such legal action before a Court of law against the Respondent for any official act, omission or default by any of its officers, servants or agents, is three (3) months after the act or omission

complained of or after the ceasing thereof, in case of a continuing damage or injury.
For legal action to be initiated or commenced against the Respondent validly and competently in a Court of law, for any official act or omission of its officers, servants or agents, it must be brought or filed within three (3) months after the cause of action arose and accrued to the complainant, plaintiff or claimant.
It can easily be seen that both the provisions of Section 2(a) of POPA; a general limitation statute applicable to all public officers in the public service of the Federation, and the provisions of Section 6(1) of NCSB Act; a specific and special limitation statute applicable specifically and only to the Respondent, both provide for limitation of action.
In line with the position of the law on the priority and precedence of a special statute over a general one, the provisions of Section 6(1) of NCSB Act apply to the Appellant?s case in priority and precedence over the provisions of Sections 2(a) of POPA. However, as may easily be observed, the provisions of Sections 2(a) of POPA and 6(1) of NCSB, Act speak in one voice and language on the

period of time prescribed and limited for the commencement of action in respect of official acts or omission of officers and servants or agents, as the case may be. Both stipulate and limit the period within which such a legal action should be commenced or initiated by a complaint or claimant, to three (3) months after the act or omission had occurred or happened. Under both statutes, the action must be commenced or initiated within three (3) months after the act or omission complained of for it to be valid and competent and maintable in a Court of law, otherwise, it would be statute barred for being in contravention of the provisions of the statutes on the limitation of the action. Once the period of time limited in the statute expires before the commencement of the legal action, the right to employ the instrumentality of the judicial processes of a Court of law for the enforcement of the right of complain, is lost forever, save as many otherwise be provided by the relevant statute.
The consequence of a limitation statute or law is that the right to use the judicial process of a Court of law; by way of a legal action, for the enforcement of a right must

be exercised within the prescribed and limited period of time or one holds his peace forever as he would be left with a right of action which is barren or empty since it cannot be enforced through the judicial process of a court of law.Egbe v. Adefarasin (supra); Sanda v. Kukawa L.G. (supra); SPDCN Ltd v. Farah (1995) 3 NWLR (382) 148; Ogunko v. Shelle (2004) 6 NWLR (868) 17; Osun State Govt. v. Danlami Nig. Ltd (2007) ALL FWLR (365) 438; Amadi v. INEC (2013) 4 NWLR (1345) 595; Ogbimi v. Ololo (1993) 7 SCNJ (Pt. II) 447.
In the Appellant?s case, as pointed out earlier, his cause of action, i.e. the auction of its two (2) containers, arose and accrued to it in 2010 while the action was initiated or commenced on 21st May, 2013, borne out by both the writ of summons and statement of claim.
?Without the need to go round and about, the action was brought, commenced or filed by the Appellant after the expiration of the period of the period of three (3) months prescribed and limited by both the provisions of Sections 2(a) of POPA and 6(1) of the NCSB, Act; which is applicable to the Appellant?s case, being a specific and special statue on the

period of limitation for the action against the Respondent.
Undoubtedly, the Appellant?s action is apparently statute barred under the provisions of Section 6(1) of the NCSB , Act and so the Lower Court was right in its decision that the action is barred by statute.
In the result, there is no merit in the appeal and it is dismissed accordingly.
There shall be no order on costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the thorough judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A., (Hon. P.J.).

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, MOHAMMED LAWAL GARBA, JCA and I agree with the reasoning and conclusion of my brother and will only add a few words of mine.

An action that is statute barred is invalid and the Court would treat it as so, this honourable Court in the case of ONOITA v TEXACO NIGERIA PLC (2016) LPELR – 41483 (CA) reiterated this fact per NDUKWE-ANYANWU, JCA thus;
“To determine what Statue Barred means, I will refer to the case of Araka v Ejeagwu (2000) 12

SC (Pt. 1) pg. 99 where it was held that: “statute barred means barred by provision of the Statute. It usually as to time i.e the bar gives a time limit during which certain action or steps should be taken, and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no avail and has no valid effect. The bar can be lifted on the limit extended only if the statute allows it to be done. Where there was no avail and has no such extension, the action carried out will be invalid, and the Court will treat as such” per Kalgo. JSC. In Obiefuna v Okoye 1 All NLR Pg. 357, the Court held as well: The general principle of law is that where the law provides for the bringing of action within a prescribed period in respect of a cause of action accruing to a plaintiff, proceedings shall not be brought after the time prescribed by the statute had expired. Nigeria Ports Authority v Lotus Plastics Ltd (2005) 19 NWLR (Pt. 959) Pg. 158; Eboigbe v NNPC (1995) NWLR (Pt. 347) Pg. 649″
?The latin maxim “ex nihilo nil fit” meaning from nothing; nothing comes is very apt in cases that are statute

barred because the legal right to use the judicial process of a Court of law, by way of a legal action has expired.
I therefore, agree with the lead judgment that the appeal lacks merit and it is accordingly dismissed.