OKO & ORS v. A.G., EBONYI STATE
In The Supreme Court
On Friday, June 04, 2021
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
- HON. FRANCIS ALUU OKO 2. HON. JOSEPH O. CHUKWU 3. HON. AMA O. UCHE (For Themselves And On Behalf Of All Councillors Of Ebonyi State Who Served For The Period Of 1999-2002 And Whose Certificates Of Return Are Hereto Annexed) APPELANT(S)
HON. ATTORNEY-GENERAL OF EBONYI STATE RESPONDENT(S)
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal is consequent upon the judgment of the Court of Appeal, Enugu Judicial Division, delivered on July 15, 2015 in appeal No. CA/E/203/2013. By the said judgment the Court below, Coram M.A Oredola, T. S. Yakubu, and M. O. Bolaji- Yusuff, JJCA, dismissed the Appeal for lacking in merits.
The Appellants had the singular privilege of serving as the pioneer democratically elected councillors in the Ebonyi State Local Government system from 1999 to 2002. In the course of their tenure as councillors, the Appellants were duly paid their entitlement/allowances due thereto.
However, the Appellants were allegedly denied some entitlements for which they severally complained albeit after the expiration of the tenure thereof.
As law abiding patriots, the Appellants deemed it expedient to hearken to the due process procedure under the rule of law by instituting the instant action at the Ebonyi State trial High Court on December 6, 2010 vide a writ of summons. By the 17 paragraphed statement of claim thereof, filed along with the writ, the Appellants sought against the Respondent the following reliefs:
WHEREFORE Plaintiffs claim against the Defendant as follows:
Domestic Staff N25, 353.12k Monthly by 36 Months N912,712.32K
Special Assistance N8,451.04k Monthly by 36 months N304, 237.44K
Personal Assistant N8, 451.04k Monthly by 36 Months N304,237.44K
Accommodation A. N405, 680.00k Yearly by 3 years N1, 217, 040.00K
Furniture A. For a Tenure of 3 years N1, 216, 950.00K
Constituency A. N20, 282. 50k yearly by 3 years N60,847.50K
Severance A. For a Tenure of 3 years N1, 216, 950.50K
TOTAL N5, 232, 974.70k
DEPUTY LEGISLATIVE LEADER
Domestic Staff N25, 312.50k Monthly by 36 Months N911,250.00K
Special Assistance N8, 437.50 Monthly by 36 monthly N303, 750.00K
Personal Assistant N8, 437.50k by 36 Months N303, 750.00K
Accommodation A. N405, 000.00K 3years N1,215, 000.00K
Furniture A. For a Tenure of 3 years N1,215, 000.00K
Constituency A. N20, 250 yearly by 3 years N60, 750.00K
Severance For a Tenure of 3 years N1,215, 000.00K
TOTAL N5,224,50.00k OTHER COUNCILLORS EACH
(A) i. Domestic Servant Allowance N855, 085. 32
ii. Special Assistant Allowance N285, 028.20
iii. Personal Assistant Allowance N285, 028.20
iv. Accommodation Allowance N1, 140, 114.00
v. Furniture Allowance N1, 140, 114.00
vi. Constituency Allowance N57, 005.70
vii. Severance Allowance N1, 140, 114.00
TOTAL N4, 902, 489.40
(B). That payment for the above claim be made in the name of our Counsel – Dr. M.E. Ajogwu SAN or through him.
Not unexpectedly, the Respondent vehemently objected to the competence of the Appellant’s suit. By the Notice of preliminary objection thereof, dated and filed on 15/06/2012, the Respondent urged upon the trial High Court for the following fundamental reliefs:
1. An Order striking out this suit for want of jurisdiction.
2. And such other order or orders as the Court may deem fit to make in the circumstance.
A sole issue was raised by the Respondent for the determination of the said preliminary objection:
Whether the combined operation of the Limitation Law (Cap. 102) and Ebonyi State (ApplicabIe laws) law (Cap. 40), laws of Ebonyi State of Nigeria, 2009 does not divest this Court of jurisdiction to hear and determine this action as presently constituted, same having been filed well over five years after the accrual of the cause of the action.
On November 9, 2012 at the close of counsel’s address, the trial High Court delivered the vexed ruling in regard to the Respondent’s objection to the conclusive effect:
It is the view of this Court that Sections 18 and 42 of the Limitation Law of Ebonyi State and the Ebonyi State (Applicable Laws)(CAP.40) Laws of Ebonyi State which bar al (sic) other actions against Ebonyi State Government on the effluxion of five years from the accrual of the cause of action are applicable in this matter and that being the case, since this suit was instituted on 6/12/11 and the cause of action arose on (sic) 2002 immediately after the end of the tenure of the plaintiffs in 2002, the period is well over 5 years and thereby this suit is statute barred.
Whether or not the cause of action arose as a result of any Federal order or an Act will not insulate it from the relevant Limitation Laws. Therefore, having held that this suit is statute barred, the suit is struck out for want of jurisdiction by the Court to entertain it.
Not unnaturally, the Appellants were utterly dissatisfied with the ruling of the trial High Court. Thus, they appealed to the Court below, thereby urging the Court to allow the appeal and set aside the vexed ruling of the trial Court.
As evident on the face of the record, the Court below had dutifully heard the appeal and delivered the vexed judgment thereof on 18/06/2015, to the conclusive effect:
For all I have said, it is clear that issues 3 and 4 be resolved and they are resolved in favour of the respondent. And having resolved all the issues in the appeal against the appellants, the appeal failed. It is lacking in merits. I dismiss it, accordingly.
The ruling of BAN OGBU, J. delivered in the suit No. HAB/78/11 on 9th November, 2012, is hereby affirmed. Each side to bear own costs.
As a last resort, the Appellants filed the instant appeal on 15/07/2015. By the original notice of appeal thereof, the Appellants have solemnly urged upon the Court to set aside the judgment of the Court below, and accordingly allow the appeal.
On March 8, when the appeal ultimately came up for hearing, the learned counsel addressed the Court and accordingly adopted the articulated submissions contained in the respective briefs thereof. Thus, resulting in reserving the judgment.
Most particularly, the Appellants’ brief settled by Dr. ME Ajogwu, SAN on 09/11/2015, spans a total of 19 pages. At pages 3-4, three issues have been couched:
(1) Whether the Lower Court was right in construing the accrual of right per se to be coterminous with right of action or cause of action.
(2) Whether the Honourable Court below was right in construing the length of time when the cause of action accrued in utter disregard of the intervening effects of Exhibits ‘C’, ‘D’ and ‘H’.
(3) Whether the Limitation Law deals with accrual of right per se instead of limiting itself to the accrual of right of action or cause of action.
The issue No. 1 is argued at pages 4 – 8 of the said brief. In a nutshell, it is submitted that the crux of the issue is the real meaning of ‘right’, as different from what right can bring to us, and when such right can affect others. See Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 as amended, Section 6 (6) (a) (b) of the 1999 Constitution (supra); BLACK’S LAW DICTIONARY, 7th Edition @ 1322.
It is further submitted, that what happened to the Appellants in 2002 was accrual of rights perse; which gave them no right of action until they waited to exercise same and it was turned down. And that the rights that accrued to the Appellants remained therewith unviolated until they made the request in 2008. Thus, when their request was turned down, the Appellants were then given the right to go to Court, right and the cause of action (complaint). See DANGANA VS. GOVENOR OF KWARA STATE (2001) 50 WRN 40 @ 51; LASISI FADARE VS. AG OYO STATE (1982) ALL NLR (pt. 1) 26; (1982) FNLR 1; (1982) 4 SC 1 @ 6-7; SAVAGE VS. O. UWECHIA (1972) 3 SC 14.
It was posited that the declaration by the Revenue Mobilization, Allocation and Fiscal Commission, was at its best a declaration for existence of rights and not accrual of right of action or cause of action. That even then, the Appellants were not aware of the existence of the right until 4th of July 2008 when Exhibits ‘C’ & ‘D’ were made known to them and the road was not clear for them until relieved by’ Exhibit ‘H’.
The Court is urged to so hold.
The issue No. 2 is argued at pages 9-11 of the brief to the effect that Exhibits C & D were certified afresh and shown to the Appellants. Therefore, time could not have begun to run against them before they got the full knowledge of what was offered thereto. See JALLCO LTD VS. OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR (pt. 391) 534 @ 547; MUOMAH VS. SPRING BANK PLC (2009) NWLR (pt. 1129) 553 @ 572.
The Court is urged to hold, that time started to run with the arrival of Exhibits C & D, and the liberating effect of Exhibit H.
The issue No. 3 is canvassed at pages 11 – 14 to the effect that accrual of right is not co-terminus with accrual of cause of action. That the right must exist before it is breached by the defendant’s action. See WOHEREM VS. EMEREUWA (2004) 6-7 SC 161, et al.
Conclusively argued on issue 3 that it is the cause or action and not the accrual of right that is subject to limitation law, (and the limitation Act) which limits action after 5 years have elapsed does not affect the instant suit.
The Court is urged to so hold. Conclusively, the Court is urged upon to allow the appeal, set aside the judgment of the Court below and direct that the Appellants are within their time to bring the instant action.
Contrariwise, the Respondent’s brief of argument settled by Rt. Hon. Augustine Nwonkwagu Esq, on 07/04/2016 spans a total of 22 pages. At page 4 of the said brief, three issues have been couched:
3.02 Whether the Court below was wrong in holding that the cause of action in the instant case accrued in 2002 when the appellant left office at the expiration of their tenure of office as councillors?
3.03 Whether the documentary Exhibits C, D and H have the legal clout to override Law 005 of 2002 being a law validly enacted by the House of Assembly of Ebonyi State, and if not, whether Exhibits C and D made in 2001, and Exhibit H made in 2010, to which the respondent did not reply could be seen as constituting an intervening negotiation/documents capable of shifting the period of accrual of a cause of action?
3.04 Whether appellants can effectively rely on the case of Salako Vs L.E.D.B, a case decided under the Public Officers Protection Ordinance as authority for exempting their claims from the operation of the Ebonyi State Limitation Law, 2009, and if the answer is in the affirmative, whether it is not too late in the day for them to argue this point.
The issue No. 1 is argued at pages 4-12 of the Respondent’s brief. It is submitted in the main that the Local Government Council Elections in Ebonyi State were conducted on 05/12/1998. The elected councillors (Appellants’ inclusive) were sworn in 1999 for three years tenure terminating in 2002.
Further submitted that, there is no disagreement as to the period the Appellants became councillors and the fact that they had several heads of entitlements, some of which they enjoyed while in office, some they ought to have enjoyed on leaving office.
Firstly, in regard to the point at which these rights became ripe, it is submitted that there is no gainsaying the fact that the last of the 4 rights severance allowance became ripe in 2002, all the duties enabling them to earn the allowances having been performed and concluded.
As to the second question, when the rights accrued and the proper time for the Appellants to sue for same, it is submitted that the non payment of the severance entitlements climaxed in 2002, when the Appellants left office and their severance allowances were not paid.
Thirdly, that Exhibits C & D were rebutted by the Respondent who went ahead to enact Law No. 005 of 2002. It is argued that this was a good time for the Appellants to test the validity of the law. Allegedly, the Appellants reclined and waited till 2011, at least 10 years after the last of the alleged denials, before they approached the Court for redress.
Further argued, that the Court below did not equate accrual of right with right of action and that it’s the accrual of cause of action that confers on the aggrieved party the right to institute an action to enforce that right. See BALA HASSAN VS. BABANGIDA ALIYU (2010) 43 NSC 219@ 241 et al.
It was postulated, that it’s interesting to note that Exhibits E, F and G (pages, 133, 134 and 135 of the Records of Appeal) were made on 23/05/2008, 27/05/2008, and 22/04/2008, while Exhibits C and D made in 2002 were said to be brought to Appellants’ knowledge on 04/07/2008 thereby raising the question as to whether it’s possible the Appellants became aware of their benefits about 3 months after they had written for something they were not aware of: a case of inconsistent and illogical argument. The Court is urged to so hold. See KALANGO VS. GOVERNOR OF BAYELSA STATE (2009) 37 NSCQR 42.
The issue No.2 is argued at pages 12-17 of the Respondent’s brief to the conclusive effect that the presence of Exhibits C-D made in 2001 but certified in 2008, and Exhibit H made in 2010, did not whittle down the effect of the Law No. 005 of 2002, which was to exempt the Appellants from severance allowances and other benefits as contained therein.
The Court is urged to so hold.
The issue No. 3 is argued at pages 17-19 of the said brief to the conclusive effect that the instant action was commenced in 2011, two years after the coming in to effect of the Limitation law of Ebonyi State. That neither the Public Officers Protection Ordinance nor its successor, the Public Officers Protection Act is a valid law of reference in this action. See NZE BERNARD CHIGBU VS. TONIMAS NIG LTD (2006) SCNJ 262; CPC VS. OMBUGADU (2013) 55 NSCQR 570; CONTRACT RESOURCES VS. STB (2013) 53, 2 NSCQR 600.
In the circumstances, the Court is urged to expunge the Appellants’ argument seeking exemption of the case thereof from the application of the Limitation Law CAP. 102 Laws of EBONYI STATE, 2009.
Conclusively, the Court is urged to dismiss the appeal and affirm the Judgment of the Court below.
Having amply considered the circumstances surrounding the instant case, the submissions of the learned counsel contained in the respective briefs thereof vis-a-vis the Record of Appeal, I am amenable to adopting the 3 issues canvassed by the Appellants in the brief thereof for ultimate determination of the appeal, anon.
It’s obvious on the face of the records of appeal that the original notice of appeal (pages 301 – 304) is predicated upon a couple of grounds, viz:
2. GROUNDS OF APPEAL
i) The lower Court erred in law when it misconstrued accrual of right to be the same thing as accrual of right of action.
PARTICULARS OF ERROR
ii) The lower Court erred in law when in construing the effective period of limitation it closed its eyes to the legal effects of Exhibit ‘D’ and Exhibit ‘H’.
PARTICULARS OF ERROR
So far, there is no indication from the records that the Appellants rely on grounds other than those two upon which the original notice of appeal is predicated. Thus, it would tantamount to breaching the fundamental rules of procedure and practice for the Appellants to now raise a total of three issues from the two grounds in question. Undoubtedly, the Appellants have disposed themselves to the unpardonable practice of proliferation of issues. Proliferation of issues is highly deplorable. In drafting grounds of appeal and issues for determination, counsel must at all times avoid proliferation of issues and this is done by distilling a sole issue from one or more grounds of appeal, thereby avoiding multiplicity of issues from the same ground. See BILLE VS. THE STATE (2016) LPELR- SC 578/2013 @ 7 Paragraphs B – C; NWAIGWE VS OKERE (2008) 5 -6 SC (Pt. 11) 93; INEGBEDION VS. SELO-OJEMEN (2013) 1 – 2 SC (Pt. 11) 59; UGO VS. OBIEKWE (1989) 2 SC (Pt. 11) 41.
Most regrettably, none of the three issues raised by the Appellants (nay the Respondent) in the brief thereof specifically relates to any of the two grounds in question, yet, the essence of relating issues to ground of appeal is not merely important but fundamental. Thus, once an issue is resolved in favour of the Appellants, the ground relating to that issue automatically succeeds thereby resulting in allowing the appeal. See JOSIAH CORNELIUS LTD VS. EZENWA (1996) LPELR – SC 102/1994; UGO VS OBIEKWE (1989) 1 NMLR (Pt. 99) 566; ZABUSKY VS ISRAELI AIRCRAFT IND. (2008) NWLR (Pt. 1070) 109 @ 131 Paragraphs D — G.
In the circumstances, I am of the considered view that there is only one crucial issue that could appropriately be said to have arisen from the two grounds of appeal:
Whether or not the Court of Appeal, Enugu Judicial Division was right when it held that “the cause of action clearly accrued as at the time the appellants left office at the expiration of their tenure of office as councillors in 2002” thereby resulting in dismissing the Appellants appeal on the ground that their suit was statute barred.
DETERMINATION OF THE SOLE ISSUE ARISING FROM BOTH GROUNDS 1 & 2 OF THE NOTICE OF APPEAL.
Instructively, the vexed judgment of the Court below spans a total of 24 pages (277 – 300) of the record of appeal. After summarising the argument of the learned counsel to the respective parties, the Court proceeded in earnest to determine the crucial issue raised in the appeal (pages 290 — 297 of the record).
Literally, the noun ’cause’ simply means to bring about or effect. A ’cause of action’ invariably denotes a combination (group) of operative facts thereby resulting in one or more bases for suing. In a sense, a cause of action is a factual situation that entitles one person to a remedy in Court from another person. Jurists all over the common law world had found it difficult, if not impossible, to accord a proper definition to the most perplexing term – ’cause of action’. Cherishingly however, Edwin Bryant, over a century ago offered some respite. According to the 19th century erudite jurist, a cause of action:
[M]ay be defined generally to be a situation or state of facts thereby entitles a party to maintain an action in a judicial tribunal. This state of facts may be — (a) a primary right of the plaintiff actually violated by the defendant; or (b) the threatened violation of such right, which violation the plaintiff is entitled to restrain or prevent, as in the case of actions or suits for injunction; or (c) it may be that there are doubts as to some apparent adverse right or claim which the plaintiff is entitled to have cleared up, that he may safely perform his duty, or enjoy his property.
See Edwin E. Bryant: THE LAW OF PLEADINGS UNDER THE CODES OF CIVIL PROCEDURE (1899) 2nd edition @ 170; BLACK’S LAW DICTIONARY, I edition (2019) @ 275.
Undoubtedly, it was this master piece definition of ’cause of action’, as enunciated by Edwin Bryant over a century ago, that was adopted by renown jurists all over the common law world. See LAGOS STATE BULK PURCHASE CORPORATION VS PURIFICATION TECHNIQUES NIGERIA LTD (2012) 521 NSCQR 274 @ 292; YARE VS NATIONAL SALARIES WAGES AND INCOME COMMISSION (2013) 12 NWLR (Pt. 1367) 173 @ 186; et al.
Contrary to the Appellants’ postulation, the Court below was not oblivious to the apparent disparities that naturally exist between a right of action, on the one hand, and a cause of action, on the other.
As aptly postulated by the Court below (page 292, lines 6 — 25 of the record):
“The parties are ad idem that a right is different from a cause of action and the former precedes the latter. I agree with both of them.”
In the instant case, as aptly found by the Court below (page 293), the Appellants in the course of their service and tenure as councillors were duly entitled to some emoluments — otherwise termed salaries and allowances:
“In that regard, Exhibit C (REVENUE MOBILAZATION ALLOCATION AND FISCAL COMMISSION CIRCULAR, dated 07/11/2001) is very much instructive. Exhibit C was unusably addressed to the following distinguished public officials:
• Deputy Chief of Staff to the Vice President,
• Speakers of State House of Assembly,
• Bureau for Local Government Affairs,
• Auditors — General for Local Governments,
• Local Government
• And Legislative Leaders.
What’s more, the heading (main theme) of Exhibit C is most explicit:
“EXPLANATORY NOTES ON CONCILLORS REMUNERATIONS PACKAGE.”
Exhibit C spans a total of three pages (pages 127 – 129 of the record). It was duly signed by the then Chairman of the RCMAF Commission, in the person of Engr. Hamman A.
Tukur mni, to the conclusive effect thus:
The Commission in accordance with the provisions of the 1999 Constitution has reviewed the Remuneration of Political and Public Affairs Office Holders. A report on this has been forwarded to Government for implementation.
9. There is also the vehicle loan which has to be repaid in full; while the furniture allowance is paid enbloc only once in the councillor’s tenure. The severance gratuity is paid enbloc at the end of the councillor’s successful tenure. Prorata gratuity is not parable. These are shown in table C.
10. It is our hope that you will find these explanatory notes useful in addressing these contentious issues and note that this circular is also copied to all stated Executive Governors for their information and necessary action.
Exhibit D (pages 130 — 132 of the record) reads:
A. LOCAL GOVERNMENT REMUNERATION PACKAGE FOR POLITICAL OFFICE HOLDERS:
ANALYSIS OF PERSONAL MONTHLY EMOLUMENTS
B. LOCAL GOVERNMENT REMUNERATION PACKAGE FOR THE POLITICAL OFFICE HOLDER;
ANALYSIS OF NON PERSONAL MONTHLY EMOLUMENTS.
C. LOCAL GOVERNMENT REMUNERATION PACKAGE FOR
POLITICAL OFFICE HOLDERS:
ANALYSIS OF MONETISED BENEFITS
It is pertinent to equally allude to some of the other exhibits relied upon by the Appellants in the course of the trial of the case:
EXHIBIT E: (page 133):
TITLED: RE INFORMATION PAYMENT OF REMUNERATIONS PACKAGE TO FORMER COUNCILLORS”
• EXHIBIT F: (Page 134) Dated 27/05/2008
• EXHIBIT H: (Page 136-137)
• EXHIBIT I: (Page 138-140) Dated 06/04/2011.
“NOTICE OF INTENTION TO COMMENCE SUIT”
At page 10 (Paragraph 4.03) of the brief thereof, the Appellants alleged that until the July 4, 2008, they had not become aware that the offer of Severance Allowance was available thereto and that on the date in question, following the arrival of Exhibits C, D and H, that the cause of action accrued. What’s more, it was posited that —
The Appellants were not communicated directly of their rights in 2002, all they knew was that the State Government had blocked a venture by the Federal Government to give them a severance package. The real letter communicating rights to severance package was certified and dated of 4th July, 2008.
However, the Court below apparently is impervious to the Appellants’ argument. According to the Court below (page 295 — 296 of the record):
Exhibits C and D clearly indicate the earned entitlements of the appellants. In other words, their right to be paid their earned entitlements as per Exhibits C and D gave them the right to litigate on that cause of action, that is, the failure of the respondent to pay them their earned entitlements, as councillors.
It is instructive, that Exhibits C and D were made on 7th November, 2001. They were certified on 4th July, 2008 and not that they were made on 4th July, 2008 as conversed by learned senior counsel to the appellants therefore, can it be rightly said that the cause of action clearly accrued on 4th July, 2008? Certainly not? The cause clearly accrued as at the time the appellants left office at the expiration of their tenure of office as Councillors in 2002. The facts that the appellants were aware of their earned entitlements which were not paid by the respondent who took steps to block the payments in 2002 is evident at paragraph 20 of the appellants’ counter affidavit …
The Court below equally alluded to Exhibits E and F (pages 133 – 134 dated 23th and 27th of May, 2008), to the effect that:
[T]he appellants were aware of their right to their earned salaries and allowances that were not paid to them perhaps, if the appellants had sued qua timet on their entitlement and nevertheless, contemporaneously engaged in correspondences and negotiations, they would not have lost their right of action on this matter.
…what a pity for crying “wolf” when the head is off!
In my considered view, the foregoing findings of the Court below are cogent, unassailable and duly supported by the pleadings of the respective parties and evidence on record.
Invariably, the noun ‘right’ literary means that which is proper under law, morality, ethics, et al; in contradiction to wrong; know right from wrong.
Jurisprudentially, the term ‘right’ denotes something that is due to a person by just claim, legal guarantee or moral principle — the right of liberty; a power, privilege, or immunity accorded a person by law the right to dispose of one’s property or estate; a legally enforceable claim that another will do or will not do a given act; the interest, claim, or ownership that one has in tangible or intangible property; the privilege of corporate shareholders to purchase newly issued securities in amount proportionate to their respective holdings. According to Gray:
The right is correlative to duty, where there is no duty there can be no right. But the converse is not necessarily true. There may be duties without rights. In order for a duty to create a right, it must be a duty to act or forbear. Thus, among those duties which have rights corresponding to them do not come the duties, if such there be, which call for an inward state of mind, as distinguished from external acts or forbearances. It is only to acts and forbearances that others have a right. It may be our duty to love our neighhour; but he has no right to our love.
See John Chipman Gray: NATURE AND SOURCES OF THE LAW edition 1921 @ 89, copiously alluded in BLACK’S LAW DICTIONARY, edition 2019 @ – 1582.
IN AMERICAN BANK & TRUST CO. VS. FEDERAL RESERVE BANK OF ATLANTA (1921) 256 @ 500 US. 350, 358, 41 SC et 499 @ 500, the US Supreme Court aptly held:
“[T]he word ‘right’ is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified.”
Undoubtedly, the term ‘right’ has been a subject of definitions in quite a plethora of authorities by this Court. In the case of SHITTA-BEY VS PUBLIC SERVICE COMMISSION (1981) LPELR — SC. 57/1980, this Court aptly postulated regarding the definition and characteristics of right:
Again, it seems to me that Exhibit “D” invests the Appellant with a legal right to remain in office and carry out his public duties as a civil servant; and one of the characteristics of a legal right is in the word of Salmond “that” it avails against a person upon whom lies the correlative duty. He may be described as the person bound or as the subject of the duty or as the person of incidence (See Salmond on Jurisprudence 12th Edition (1996) P. 221, Paragraph 41 (item 2).
Per Idighe, JSC@ 38 paragraphs E — G.
Again, in the case of AG of Lagos State Vs. AG FEDERATION (2004) LPELR – SC 70/2004, this Court aptly postulated:
What is legal right? A legal right in my view, is a right recognisable in law. It means a right recognised by law and capable of being enforced by the plaintiff. It is a right of a party recognised and protected by a rule of law, the violation of which would be a legal wrong done to the interest of the plaintiff; even though no action is taken. The determination of the existence of a legal right is not whether the action will succeed at the trial but whether the action denotes such a right by reference to the enabling law in respect of the commencement of the action.
Per Niki Tobi, JSC @ 97-98 paragraphs G — B.
As aptly found by the Court below in the instant case, the action was statute barred for having been filed outside the statutory time limit. The Court below was absolutely right, in my view. Indeed, the doctrine is well settled beyond peradventure, that the law provides for commencing an action within a prescribed period in regard to a cause of action accruing to the plaintiff, proceeding shall not (ought not) be brought after the time so prescribed by the statute (has lapsed). See EGBE VS ADEFARASIN (1985) 1 NWLR (Pt. 3) 549 @ 568 – 569:
An action brought outside the prescribed period offends against the provision of the section and does not give rise to a cause of action. A cause of action means the factual situation stated by the Plaintiff, if substantiated, entitle him to a remedy against the defendant. See Latana Vs. Cooper (1964) 2 All ER 929. The claim must rest on and be supplied by a cause of action.
Of course, the foregoing trite fundamental doctrine is not devoid of an exception thereto. As aptly pontificated by this Court in HASSAN VS ALIYU (2010) LPELR SC 170/2009, the exception duly applies:
Where the public officer concerned fails to act in good faith or acts in abuse of office or maliciously, or with no semblance of legal justification as decided in the cases of Lagos City Council vs. Ogunbiyi (1969) All NLR 297 at 299; CBN VS OKOJIE (2004) 10 NWLR (Pt. 882) 448 AT 523; NWANKWO VS ADEWUNMI (1966) All NLR 119 at 192; Offoboche vs. Ogoja Local Government (2001) 16NWLR (Pt. 739) 458.
Per Onnoghen, JSC (as he then was).
Most instructively, as aptly postulated above, the effect of limitation on the action is that it takes away the Plaintiff’s right to institute the action, but leaving him with his cause of action intact albeit devoid of the right to some judicial relief.
As aptly reiterated in HASSAN VS ALIYU (supra);
when an issue of limitation of time to institute an action is raised, it is a preliminary issue touching on the competence of not only the action, but of the Court before which the action pends. It is long settled that an issue of jurisdiction is a periphery matter which must be resolved before proceeding to determine the merits of the case, where the issue is found not have any merit…
It is trite that jurisdiction is very fundamental to adjudication and where a Court lacks the competence to hear and determine a matter but proceeds to do so, an appellate Court is duty hound to nullify a decision resulting therefrom.
Per Onnoghen, JSC (as the learned Lord then was).
In the instant case, the Court below wisely hearkened to the formidable ‘Voice of’ wisdom’ and arrived at the most inevitable conclusion in the vexed judgment:
“And having resolved all the issues in the appeal against the appellants, the appeal failed. It is lacking in merits. I dismiss it, accordingly.”
My noble Lords, against the backdrop of the foregoing postulations, it has become rather obvious that the sole issue (distilled from the Appellants’ two grounds of the original notice of appeal), ought to be, and same is hereby resolved against the Appellants.
Thus, having resolved the sole issue against the Appellants, there is no gainsaying that the appeal resultantly fails, and same is hereby dismissed by me.
Consequently, the judgment of the Court of Appeal, Enugu Judicial Division, delivered on June 18, 2015 in appeal No. CA/E/203/2013, is hereby affirmed.
There shall be no order in regard to costs.
Before placing the very last dot to the instant judgment, I have deemed it compellingly expedient to say that the Appellants were solely responsible for the predicament thereof. As aptly alluded to by the Court below in the vexed judgment, the Appellants had not been vigilant enough in pursuing the rights vis-a-vis the prosecution of the case thereof. Yet, the biblical truism is indeed trite, that the fundamental condition upon which the Almighty God, the Beneficent graciously accorded man liberty is ETERNAL VIGILANCE. Thus, the well cherished equitable doctrine VIGILANTIBU ET NON DORNTILNTIBUS JURA SERVENIAM – The laws aid the VIGILANT, not the INDOLENT!
In that sense, the Legendary William Shakespeare must have been absolutely not far from the truth, when he lyrically philosophised:
The enemy increases every day,
We, at the height are ready to decline.
There is a tide in the affairs of men.
Which taken at the flood leads on to fortune.
Omitted, all the voyage of their life is bound in
shallows and in miseries.
See JULIUS CAESER (‘KAISER’; properly so pronounced) Act IV, SCENE 3; AROMIRE VS. AJOMAGBERIN (2011) LPELR —3809 (CA) Per Saulawa, JCA (as he then was).
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered, by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC and to underscore the support in the reasonings from which the decision emanated, I shall make some remarks.
The appellants commenced the action leading to this appeal by Writ of Summons in the High Court of Ebonyi State sitting at Abakaliki per B.A.N Ogbu J. On commencement, the respondent, as defendant raised a preliminary objection to the jurisdiction of the Court on the ground that the suit was statute barred.
The learned trial judge upheld the objection and struck out the suit. On appeal to the Court of Appeal sitting at Enugu or Court below or lower Court, Coram: A.A. Oredola, T.S. Yakubu, M.O. Bolaji — Yusuf JJCA, affirmed the decision of the trial Court.
The appellants being dissatisfied have come before the Supreme Court to ventilate their grievance.
BRIEF STATEMENT OF FACTS
The appellants served as councillors in the Ebonyi State Local Government system from 1999 to 2002 when their respective tenures lapsed. While serving as councillors, the appellants continued to receive their salaries and some other entitlements/allowances. They were however allegedly denied some entitlements for which they severally complained, albeit, after they left office. Pages 133, 134 and 135 of the Record contain the appellants’ letters to Government asking for the payments most of which became due after the Revenue Mobilization, Allocation and Fiscal Commission’s Explanatory Circular of Councillors Remuneration dated 7th November, 2001.
By the Circular of 7th November, 2001 (page 130 of the Record), some of the entitlements due to the councillors were personal to each of them and were regarded as monthly take home pay. Other entitlements were those for staff employed by each councillor. There were yet other entitlements/allowances for accommodation, furniture, constituency and severance being claimed by the appellants. While some of those allowances became due and payable on assumption of office, the Severance Allowances became due and payable on completion of the tenures of the respective councillors in 2002.
The allowances and benefits of the councillors were not a subject of contention but the suit having been commenced outside the time statutorily provided by the law, the respondent raised a preliminary objection on that ground. The objection was upheld by the trial Court and the decision affirmed by the Court below on appeal, hence this appeal.
On the 9th March, 2021, date of hearing, learned senior counsel, D.D. Dodo adopted the brief of argument settled by Dr. M.E Ajogwu SAN and filed on 9/11/15. He distilled three issues for determination which are as follows:-
1. Whether the lower Court was right in constituting the accrual of right per se to be coterminous with right of action or cause of action.
2. Whether the Honourable Court below was right in construing the length of time when the cause of action accrued in utter disregard of the interviewing effects of Exhibits ‘C’, ‘D’ and ‘H’.
3. Whether the limitation law deals with accrual of right per se instead of limiting itself to the accrual of right of action or cause of action.
Paul Awada Esq, learned counsel for the respondent and being the Director Civil Litigation (DCL) of the Ebonyi State Ministry of Justice, adopted the brief of argument settled by the Attorney General, Augustine Nwankwagu Esq, filed on 2/4/2016 and deemed filed on 24-1-2018. He formulated three issues for determination, viz:-
1. Whether the Court below was wrong in holding that the cause to action in the instant case occurred in 2002 when the appellants left office at the expiration of their tenure of office as councillors?
2. Whether the documentary Exhibits C, D and H have the legal clout to override Law 005 of 2002 being a law validly enacted by the House of Assembly of Ebonyi State, and if not, whether Exhibits C and D made in 2001, and Exhibit H made in 2010, to which the respondent did not reply could be seen as constituting an intervening negotiation/documents capable of shifting the period of accrual of a cause of action?
3. Whether appellants can effectively rely on the case of Salako Vs L.E.D.B, a case decided under the Public Officers Protection Ordinance as authority for exempting their claims from the operation of the Ebonyi State Limitation Law, 2009, and if the answer is in the affirmative, whether it is not too late in the day for them to argue this point?
I shall utilise the issues donated by the appellants and together.
ISSUES 1, 2 & 3
1. Whether the lower Court was right in construing the accrual of right per se to be coterminous with right of action or cause of action.
2. Whether the Honourable Court below was right in construing the length of time when the cause of action accrued in utter disregard of the intervening affects of Exhibits C, D and H.
3. Whether the Limitation Law deals with accrual of right per se instead of limiting itself to the accrual of right of action or cause of action. Learned counsel of the appellants contended that accrual of rights is not the same thing as accrual of cause of action or accrual of right of action. That an unviolated right does not confer on the holder of right, any right of action because there is no cause of action. That right of action and cause of action can be conterminous but accrual of right per se stands on its own.
He stated on that accrual of right cannot order the constitution to entitle the holder of the right to call in aid the judicial powers of the Court under our laws. That it is the infringement of that right which is the cause of action and gives the holder the right to activate the judicial powers of the Court under Section 6(6) (a) & (b) of the Constitution 1999 as amended (CFRN).
For the appellants, it was submitted that unless the civil rights and obligations of a person fall for determination because of infringement or incursion by another person or authority, the Courts of the country have no right of adjudication as the accrued rights had not been violated as happened in this instance to the appellants in 2002. That the rights that accrued to the appellants remained with the appellants unviolated until the appellants made the request in 2008 when the request was turned down giving the appellants the rights to go to Court. For the definition of cause of action, Learned counsel cited Dangana v Governor of Kwara State & Anor (2001) 50 WRN page 40 at 51.
Learned counsel for the appellants stated that accrual of right is not coterminous with accrual of right of action or accrual of cause of action. That the declaration by the Revenue Mobilization, Allocation and Fiscal Constitution was at its best declaration of existence of rights and not accrual of right of action or cause of action. That even then the appellants did not become aware of the existence of the right until 4th July, 2008 and 6th December, 2011 when the suit was filed.
For the appellants, it was submitted that it was alleged that exhibit C which carried the publication of the offer by the Federal Government got in trouble with the State Government and in Ebonyi State of the appellants, that the government slammed Law 005 of 2002 to cover up the publication and when this imprisonment of Exhibits C, D was lifted by the appearance of exhibit H i.e. by overriding superior effect of exhibit H, time began to run.
That exhibits C and D were certified afresh and shown to the appellants and so time could not have begun to run against the appellants before the appellants got the full knowledge of what was offered to them. He referred to Jallco Ltd v Owoniboy Technical Services Ltd (1995) 4 NWLR (pt 391) 534 at 547; Muomah v Spring Bank Plc (2009) 3 NWLR (pt 1129) 553 at 572.
Learned counsel for the appellants contended that anticipatory rights of action are not proper in our Court and are not applicable, He cited Section 6(6) (b) CFRN.
That the effect of a statute of limitation on an action is that it takes away the right of the plaintiff to institute the action but leaves him with his cause of action intact though without the right to enforce same or right to judicial relief. He cited Woherem JP v Emereuwa (2004) 6-7 SC 161.
That it is the cause of action and not the accrual of right that is subject to limitation law and so the Limitation Act of Ebonyi State which limits action after 5 years had elapsed, does not affect this suit.
In response, learned counsel for the respondent submitted that the rights of the appellants became ripe in 2002 when the duties enabling them to earn the allowances having been performed, and concluded as they left office in 2002. That by 2011 when they instituted the action when their request for their entitlements were rebuffed in 2002, the limitation law had operated to stop them. That the appellants had slept on their operating rights. He cited Kalango v Governor of Bayelsa State (2009) 37 NSCQR 42.
That the presence of Exhibits C, D made in 2001 but certified in 2008 and Exhibit ‘H’ made in 2010 did not whittle down the effect by Law No. 005 of 2002 which is to exempt the appellants from severance allowances and other benefits as contained in the said law.
What is critically at stake in this matter under review is the real meaning of right as distinct from what rights can bring to a person and when such rights can affect the relationship with others.
Under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 as amended (CFRN for short), every Nigerian citizen has fundamental rights, which rights accrue from birth and remain with them until death. If those rights are not violated in any form or way, the holder of the rights would neither have cause of action against the infractor or right of action against anybody.
The definition of rights as depicted in Blacks Law. Dictionary, 7th Edition page 1322 would bring what is meant by rights to light; it is thus:-
“Something that is due to a person… legal guaranty or moral principle. A purer privilege or immunity secured to a person by law, legally enforceable claim… a recognized and protected interest, the violation of which is a wrong…. and gives rise to a cause of action or a right of action.”
In the wake of the definition above, it is to be seen that accrual of rights is not the same thing as accrual of cause of action or accrual of right of action. The implication is that an unviolated right does not confer on the holder of right, any rights of action because there is no cause of action. In my humble view therefore, right of action and cause of action can be coterminous but accrual of right per se stands alone.
It follows that accrual of right under the Constitution entitles the holder of the right to call in aid the judicial powers of the Court under our statutes.
It is the infringement of that right which is the cause of action and gives the holder the right of action to activate the judicial powers of the Court under Section 6 (6) (a) & (b) of the CFRN 1999 as amended. The said section provides:
“(6) The judicial power vested in accordance with the foregoing provisions of this section:
(a) Shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of the Court of law;
(b) Shall extend to all matters between persons or between governments or authorities and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
It is only when the civil rights and obligations of a person fall for determination because of infringement or incursion by another person or authority, the Courts of the country have a right of adjudication. That is to say, in the face of accrued rights which had not been violated, tampered with or alleged to be violated or tampered with, the judicial powers of the Courts of Nigeria remain latent in the face of naked accrued rights.
To consider and reach an answer into what has brought about this appeal and whether or not the Court below was right in holding that the action had become statute barred for which the rights that had accrued were no longer actionable.
Getting back to the beginning, the Local Government Council Elections in Ebonyi State were conducted on the 5th day of December, 1998. Elected Councillors in the State, including the appellants were sworn in 1999 for a three year tenure that would terminate in 2002. The Councillors were entitled to certain benefits, some of which were payable at the end of each year while others became due on their vacation of office after their tenure in 2002.
From the facts, there is no disagreement as to the period the appellants became councillors. There is also no dispute as to the fact that the appellants had several heads of entitlements to their favour some of which they enjoyed while in office while some they ought to have enjoyed on their leaving office in 2002.
The points of disagreement however are:
1. At which point did these rights become ripe, i.e. when did the appellants’ rights accrue?
2. When the rights accrued, when was it the proper time for the appellants to sue for them, i.e. when did the cause of action accrue?
3. When the appellants became aware of their rights but were denied the enjoyment thereof, what did they do?
What comes up firstly is at which point did these right become ripe, i.e. when did the appellants’ right accrue? I posit that the salaries of the appellants’, their domestic staff’s, personal assistant’s and special assistants’ allowances all became ripe for enjoyment in piecemeal at the end of each month of their three years in office. On the other hand, accommodation, furniture and constituency allowances all became also due in piecemeal at the end of each year of their three years in office. The severance allowances were due on their vacation of office after their individual tenures expired in 2002.
It is not in doubt or for debate that the appellants had rights i.e. rights to their salaries and other sundry allowances since they performed their duties for three years which entitled each of them to:
a. Salaries for thirty-six months payable monthly;
b. Salaries of their domestic staff, special assistants and personal assistants for thirty-six months payable monthly;
c. Accommodation and furniture allowances for three years payable yearly;
d. Severance allowances for three years payable at the end of their respective tenures.
While, the appellants are not complaining of their monthly salaries as these were paid regularly till the end of their tenures. This was not true of other entitlements.
I agree with learned counsel for the respondent that from the foregoing analysis, there is no gainsaying the fact that the last of these rights — Severance Allowance — became ripe in 2002, all the duties enabling them to earn the allowances having been performed and concluded.
The second question ensuing is: When the rights accrued, when was it the proper time for the appellants to sue for them? What crops up is that the proper time for the appellants to approach the Court for their rights varied from one entitlement to the other. The proper time for approaching the Court for each of the monthly entitlements was at the end of each month when it became clear to the appellants that the Government was not forthcoming in paying them. For the yearly allowance, the proper time was at the end of each year. This alleged non-payment of their entitlements climaxed in 2002 when they left office and their Severance Allowances were not paid.
The third question: When the appellants became aware of their rights but were denied the enjoyment thereof, what did they do? From what the statement of claim at the trial Court shows, the appellants made several efforts to have their accrued entitlements paid. The Government did not respond favourably. ‘They complained to the Revenue Mobilization Allocation and Fiscal Commission which resulted in Exhibits C& D.
This letter was rebuffed by the respondents who went ahead to enact law No. 005 of 2002. This was a good time for the appellants to test the validity of the law. They reclined. They waited till 6th December, 2011, at least ten years after the last of the alleged denials before they approached the Court for redress.
As I had earlier stated, there is a difference in accrual of right from accrual of cause of action, even though it is a very thin line of demarcation between them. When a right accrues, it is the duty of the beneficiary of that right to make moves to claim his right. When the move is made without success or a favourable response from the other party, there is nothing more to infer than that that refusal to respond is tantamount to a denial. At this point, the cause of action has accrued and is now enforceable through the instrumentality of a judicial process.
The lower Court was on the proper pedestal when it held that:
“Hence, the wrongful act of the respondent which gave the appellants their cause of action is the failure of the former to pay the latter their earned entitlements.” See page 295 of the Record of Appeal.
In reiteration, a right of action is the right to bring a specific case to Court but the right is enforceable with the happening of certain events. These events which must take place before the claimants right of action is activated and collectively referred to as cause of action. It is the accrual of the cause of action which confers on the aggrieved party the right to institute an action to enforce that right.
As my learned brother, Ngwuta JSC stated which I adopt, “The phrase cause of action, connotes the totality of all material facts necessary to establish a legal right in a particular case”. See Nigeria Ports v Beecham (2012) 52, 2 NSCQR 219 at 241.
See also Bala Hassan v Babangida Aliyu (2010) 43 NSCQR 139, Bulk Purchase Corporation v Purification Techniques Nig (2012) 521 NSCQR 274 at 292; Yare v National Salaries, Wages and Income Commission (2013) 12 NWLR (pt 1367) 173 at 186.
In the determination of when the cause of action in a suit accrued for the purpose of the application of the Statute of Limitation Cap. 102, Laws of Ebonyi State, 2009, the trial Court is expected to peruse the writ of Summons and the Statement of claim which is what the trial Court did on this instance. See Nana Opia v INEC (2014) 572 NSCQR 1239 at 1260 per Galadima JSC.
It was clear to appellants when they became councillors that they were entitled to personal salaries, salaries of their domestic staff, personal and special assistants on monthly basis, accommodation, furniture and constituency allowances on annual basis and severance allowances at the end of their service.
Of note are Exhibits E, F and G which are some of the letters of the appellants to the respondent made on 23rd May, 2008, 27th May, 2008, and 22nd April, 2008 respectively, while Exhibits C and D made in 2002 were said to be brought to their knowledge on 4th July, 2008. This begs the question, if it was possible that the appellants became aware of their benefits about three months after they had written for something they were not aware of?
Taking the above analogy runs counter to when this Court reiterated that time could be said to have begun to run in the case of Jallco Ltd v Owoniboys Technical Services Ltd (1995) 4 NWLR (pt 391 534) to:
a. There is in existence a person who can save, or
b. Another who can be saved, and
c. All facts have happened which are material to be proved to entitle the plaintiff to succeed.
If the appellants were not aware of the existence of Exhibits C and D until they were certified and brought to their knowledge in 2008, they were certainly aware of Law No. 005 of 2002 by “the Ebonyi State Government that tried to block the payment by passing laws in their House Assembly exonerating their State from paying the severance package” (culled from Appellant’s brief)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
The effect of the above is that as at 2002, the appellants were aware of their benefits but continued to write letters to the respondent who kept mute and followed same with Law No. 005 without further response to the entreaties of the appellants by numerous letters.
It is difficult in those events that unfolded not to agree with the respondent that the cause of action in this suit had accrued not later than 2002, by which time the appellants were out of time to invoke the judicial powers of the Court. Sad as it is, there is no running away from the reality check that Section 18 of the Limitation Law, Cap 102, Laws of Ebonyi State, 2009 which provisions are clear and unambiguous, that time to bring the action was expended. It provides thus:
5.13: “No action founded on contract, tort or any other action got specifically provided for in parts II and III of this law shall be brought after the expiration of five years from the date on which the cause action accrued”
In this instance the appellants having slept on their rights are deemed to have waived them and this Court is bound to give effect to the law, harsh as it may seem to the appellants. See Kalango v Governor of Bayelsa State (2009) 37 NSCQR 42.
Whether the documentary Exhibits C, D and H have the legal clout to override Law 005 of 2002 being a law validly enacted by the House of Assembly of Ebonyi State and if not, whether Exhibits C and D made in 2001, and Exhibit it made in 2010, the issue which the respondent did not put up a reply. It would be seen as constituting and intervening negotiation/documents capable of shifting the period of accrual of a cause of action?
The learned senior counsel for the appellants has argued that Exhibits C & D were ‘a Federal Government Instruction Paramount’ (Exhibits C & D) and referred to Exhibit H severally as having ‘liberating effect’ and ‘overriding superior effect’ on Law 005 of 2002 validly enacted by the Ebonyi House of Assembly. With respect, these are all deceptive appellation or at best an innocent misconception that has no place in law and justice. It is trite that our democracy is run on separation of powers among the Legislative, Executive and Judicial arms of Government. It is the duty of the Legislature to make laws; the Executive to implement the laws, while the Judiciary interprets. The beauty of this is the relative independence of the arms of Government, albeit, with checks and balances.
Nigeria operates Federal System of Government with smaller geographical definitions or component units called states. Our Constitution is couched in a manner that the Federal Legislature otherwise called ‘the National Assembly’ has legislative competence on all matters in the Executive Legislative list while the Legislature at the State levels can also make laws concurrently with the National Assembly on matters in the concurrent legislative List of the Constitution. In general the Constitution provides in Section 4 (5) that,
“If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall to the extent of its inconsistency be void”.
The appellants knew well enough of the position of their entitlements and what the respondent was doing way back in 2001 or latest 2002.
In paragraph 20 of their counter affidavit (page 164 of the Records), the appellants stated: “That Ebonyi State House of Assembly by its law in 2002, attempted blocking the payment of the plaintiffs but by a Federal Government instruction paramount, and the table of payment annexed to Exhibit D, the Federal Government ordered Ebonyi State Government to pay elected councillors in spite of their legislation as the legislation could only cover political appointees of Ebonyi State and not elected councillors”.
Assuming the Federal Government’s policy documents in Exhibits C, D & H possess the legal ability to overpower Law No. 005 of 2002, it is posited that what appellants should have done would be to ask for judicial pronouncement on this and not to assume the existence of the documents’ so- called ‘instruction paramount’ and ‘liberating effect’ without more. This might be inadvertence to their peril.
Clearly Exhibits C and D made in 2001 could not and was never designed to revive any cause of action. As at the time Exhibits C and D were made, the appellants were not statutorily barred from invoking the powers of the Court to claim some of their rights which had accrued in piecemeal from their first month of service and the first year of service completely. Exhibit H made in 2010 did not possess any reviving effect nor did it constitute a negotiation between the appellants and the respondent. The fact that Exhibits C and D were certified in 2008 did not alter the date of making them, i.e. 2001, for the purpose of computation of time.
If the appellants were not aware of what the exact law or its purport was,they had the rule of practice in all State High Courts, Ebonyi State inclusive to seek interpretation of any such law, deed or instrument by Originating Summons.
The appellants, instead of doing this, banked their confidence in a Federal Executive Policy to override a law enacted validly by the Ebonyi State House of Assembly. See Order 1 Rule 2 of the Imo State High Court Civil Procedure Rules, 1988 then applicable to Ebonyi State, or Order 3 Rule 2 of the Ebonyi State High Court Rules, 2008.
In Elelu-Habeeb V. AGF (2012) 49, 3 NSCQR 1528, this Court held that Originating Summons could be used in the commencement of an action in matters involving interpretation of contracts, documents, constitution and other statutes where matters are not in disputes. See also Amasike V. R-G., CAC (2010) 43 NSCQR 581. The appellants failed or neglected to take advantage of this by challenging the validity of Law 005 of 2002 if they felt it was inconsistent with a Federal Law. Unfortunately, however, Exhibits C and D are not laws made by the National Assembly. They were mere executive policies.
There was no negotiation as between the appellants and the respondent either immediately after the expiration of their tenure or before the commencement of their action in 2011. At best, what existed were series of letters of demand from the appellants to the respondent which the latter did not reply. (Exhibits E, G and G refer). The noun ‘negotiation’ is from the verb ‘negotiate’ which according to the Webster’s Universal Dictionary and Thesaurus published in 2005 by Geddes & Grosset, ‘negotiate’ means “to discuss, bargain, in order to reach an agreement or settlement”. Also, the Black’s Law Dictionary, 8th edition defines ‘negotiation’ as,
“A consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter”.
In this instance, there is no record of any bargain or attempt by the appellants and the respondent to have their dispute or potential dispute resolved. Letters written by one party to them without more cannot be said to be negotiation, the operation of which would be capable of shifting the period of the accrual of the cause of action. Even if there was a negotiation, the time-hallowed principle of law is that time continues to run for the purpose of limitation even when the parties are engaged in negotiation. See NNPC V. lorshase (2008) All FWLR (Pt 403) 1299; Eboigbe V. NNPC (1994) 5 NWLR (Pt 347) 649.
I have no difficulty to hold that, the presence of Exhibits C, D made in 2001 but certified in 2008 and H made in 2010 did not whittle down the effect of Law No. 005 of 2002 which is to exempt the appellants from Severance Allowances and other benefits as contained in the said law.
With regard to the question whether the appellants can effectively rely on the case of Salako v L.E.D.B. a case decided under the Public Officers Protection Ordinance and authority for exempting their claims from the operation of the Ebonyi State Limitation Law, 2009. And if the answer is in the affirmative, whether it is not too late in the day, for them to argue the point?
Learned counsel for the appellants had argued that the case of the appellants were exempted, from the operation of the Limitation Law of Ebonyi State, 2009. He relied on the cases Salako V. L.E.D.B. and Nigerian Ports Authority Vs Construzioni Generali Farsupra Cogefar SPA. With respect, this argument is misconceived. Part IV of the Limitation Law, Cap. 102, Laws of Ebonyi State of Nigeria, 2009 is headed “Limitation Period in Respect of Contract, Tort and other Actions”. In particular, Section 18 thereof provides:
“No action founded on contract, tort or any other action not specifically provided for in Parts II and III of this law shall be brought after the expiration of five years from the date on which the cause of action accrued.” (Underlining mine for emphasis)
Notably, Parts II and III provide for limitation periods in respect of land, and judgments, trust property and the estate of deceased persons respectively. This action, no doubt, is one of the classes of action covered by any other action not specifically provided for in Parts II and III of this Law.
This action was commenced in 2011, two years after the coming into effect of the Limitation Law of Ebonyi State. Neither the Public Officers Protection Ordinance, nor it successor, the Public Officers Protection Act is a valid law of reference in this action. The Limitation Law of Ebonyi State applies. In Nze Bernard Chigbu V. Tonimas Nig. Ltd (2006) SCNJ 262, this Court held that limitation law being a procedural enactment guides the conduct of the Court and is an exception to the presumption against retrospectivity. See Section 44. This Section provides thus:
“Any enactments relating to the limitation of action which were in force in the state immediately before the commencement of this Law shall cease to exist”.
These enactments that ceased to exist include the Public Officers Protection Ordinance or even its Act and law equivalents. Section 43 of the Law is explicit as to which proceedings are exempted from the application of the Ebonyi State Limitation Law and the present action is not one of those exemptions.
Assuming that the Limitation Law of Ebonyi State did not apply to the case of the appellants, a fundamental question would arise at this point, which is if the issue can be raised at this stage.
The answer is in the negative. It is stated that this issue being an issue not raised in the Court below or the trial Court cannot be raised now without leave of this Court. Even if the appellants had applied for leave to raise this fresh issue for the first time in this Court, it is my humble view that a plethora of decided cases have laid down the requirements that garb them with requisite authority to raise the issue. These requirements include that the fresh issue or evidence must be such as could not have been with reasonable diligence obtained for use at the trial, or such as if admitted would have an important effect on the whole matter, and such as is credible and capable of being believed and need not be controvertible. See CPC V. Ombugadu (2013) 55 NSCQR 570, Contract Resources V. STB (2013) 53, 2 NSCQR 600.
Having not obtained leave of this Court to argue this point, this Court ought to expunge the appellants’ argument asking for the exemption of his case from the application of the Limitation Law, Cap. 102, Laws of Ebonyi State of Nigeria, 2009.
From the foregoing and my attempt at making my views communicated, there is no fighting chance in this appeal which lacks merit and I dismiss it. I abide by the consequential orders made.
JOHN INYANG OKORO, J.S.C.: My brother, Ibrahim M. M. Saulawa, JSC, afforded me the opportunity of reading before now the lead judgment just delivered and I am in complete agreement with the reasons, conclusion and order made therein. My comments hereunder are in demonstration of my alignment with the lead judgment and for purpose of emphasis.
The facts of this case disclose that the Appellants herein completed their tenure of office in 2002 as Local Government Counsellors of Ebonyi State. It is also not in doubt that the suit which has led to this appeal was commenced on 6th December, 2010 about eight (8) years interval after they left office. Also not in dispute is the fact that as at 2002 when the Appellants served out their respective terms of office, they were aware of their earned entitlements which were not paid by the Respondent.
The position of the law is settled that for the purpose of limitation of an action, time begins to run from the time when there is in existence a person who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed. Put differently, time begins to run when the cause of action has accrued. See Hassan v Aliyu (2010) 17 NWLR (pt. 1223) 547, Independent National Electoral Commission (INEC) v Chief Godwin Enasito & 4 Ors (2018) 2 NWLR (pt. 1602) 63 at 94.
It follows therefore that any action commenced outside the period prescribed by the statute is barred as the right of action of the plaintiff would have been extinguished by such law. This Court considered a similar issue in a recent case of INEC v Ogbadibo Local Government (2016) 3 NWLR (pt. 1498) 167 at 208 where in my concurring opinion, I stated as follows:-
“What this means in effect is that the Limitation Act or Law removes the right of action of a plaintiff, his right of enforcement and right of judicial relief leaving him with a bare and empty cause of action which he cannot enforce by judicial process. It is statute barred.”
I adopt and rely on my position in Ogbadibo’s case reproduced above in this appeal.
In the instant appeal, both parties are ad idem that the Limitation Law, Cap 102, and Ebonyi State (Applicable laws) Cap 40, Laws of Ebonyi State 2009 allow for institution of action against the Respondent within five (5) years after the accrual of the cause of action. The Appellant’s only contention is that in view of their exchange of correspondences and negotiations until the certification of exhibits C and D on 4th July, 2008, they would not have lost their right of action in this matter. The issue is whether such intervening negotiations had revived the Appellants right of action.
In my considered view, parties are encouraged to engage in negotiations for the purpose of reaching an amicable settlement of their dispute. However, such negotiation does not stop the period of limitation prescribed by the statute from running. A limitation period with respect to a cause of action is not broken once it begins to run. A party whose right of action has accrued has a responsibility to institute an action against the other party so as to protect his interest in the event that negotiations fail. See Lahan v The Attorney General Western Nigeria (1961) WNLR 39.
The sum total of all I have endeavoured to say above is that the suit of the Appellants was statute barred having not been instituted within five years of the accrual of the cause of action. I agree with my learned brother that this appeal has no merit and is hereby dismissed. I also make no order as to costs.
EJEMBI EKO, J.S.C.: The Appellants were Councillors. They were, between 1999 – 2002, duly elected into various Local Government Councils in Ebonyi State. They claimed to be entitled to be paid Severance Allowances allegedly approved by the Revenue Mobilisation and Fiscal Commission as per Exhibits C & D made in 2001. The said public documents were duly certified in 2008.
In 2002 the Law No. 5 of 2002 was passed by the Ebonyi State House of Assembly. The said Law No. 5 effectively barred and blocked the payment to, and the enjoyment by, the Plaintiffs/Appellants of Severance Allowances. The Appellants took no steps either to challenge the Law No. 5 or to enforce their right to the Severance Allowance.
In 2010, another policy statement was issued in Exhibit H reiterating Councils’ entitlement to payment of Severance Allowances. In the same 2010 the Appellants went to Court seeking to be paid their Severance Allowances withheld since 2002 when their tenure elapsed. The defence pleaded limitation vide a Notice of Preliminary Objection. The trial Court, sustaining the preliminary objection, struck out the suit for being statute barred.
On appeal the lower Court dismissed the appeal. It affirmed the finding of fact that the Appellants’ cause of action was caught up by effluxion of time and therefore statute barred by the operation of Section 18 of Limitation Law of Ebonyi State that limited the time within which to enforce a right, the subject of the Appellants’ claim, to a period of 5 years from the date of the accrual of the right of action.
In their Brief of Argument, the Appellants concede that a wrongful violation of a right gives rise to a cause of action or the right in law to maintain the action to enforce the right; and that the infringement of a legal right is the cause of action, giving the holder of the right, the right to activate judicial process to enforce the right. They further admit that the right to enforce the payment of their Severance Allowances accrued to them, severally, since 2001/2002 and that they could not demand enforcement of that right because Ebonyi State House of Assembly had enacted the Law No. 5, 2002 outlawing their right and made it impossible for them to enforce the right. They simply watched their right exfoliate and denude them.
Equity follows the law. Delay defeats equity as equity assists only the vigilante. Equity would not assist a litigant resuscitate and resurrect a wasted right of action.
At the risk of repetition; the Appellants did not challenge the Law No. 5 of 2002. They also, not oblivious of Section 18 of the Limitation Law, did not act, within the 5 years prescribed for enforcement of their right, for judicial redress to ensure that they were paid their respective Severance Allowances. This action taken in 2010, brought eight years after the accrual of their cause of action and the right to enforce their right to be paid their respective Severance Allowances; is statute barred. I will therefore not disturb the decision appealed. The appeal, in my view, smacks of some frivolity.
Consequently, and being also on the same page with my learned brother, I. M. M. SAULAWA, JSC, I find no substance in the appeal. The appeal is hereby dismissed. All consequential orders made in the lead judgment of my learned brother are hereby endorsed and adopted by me.
ADAMU JAURO, J.S.C.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC. I am in agreement with the reasoning and the conclusion contained therein.
My learned brother has covered the ground as he has dealt with all issues germane to the determination of the instant appeal.
By way of adumbration however, I wish to state that the Appellants were well aware that they were entitled to severance benefits as far back as 2002. They averred at paragraph 7 of their statement of claim thus:
“Plaintiffs aver that since the end of their tenure in 2002, they have continued to demand for their entitlements/benefits in vain, including writing to the Governor of Ebonyi State, the Secretary of Ebonyi State Government, the Speaker of Ebonyi State House of Assembly and even His Lordship, Bishop of Abakaliki Diocese. Regrettably, all these have helped in yielding only negative result.”
They further averred at paragraphs 8 and 9 that it was after their demands failed to yield any result that they wrote to the Revenue Mobilisation Allocation and Fiscal Commission (RMAFC), which prompted the RMAFC to write Exhibit H to the Governor of Ebonyi State. The question is if the Appellants did not know about their entitlements, what prompted them writing to authorities within Ebonyi State and later RMAFC?
The Appellants slept on their rights for far too long and woke up too late from their deep slumber. Having failed to institute their action within the limitation period of five years permitted by Section 18 of the Limitation Law of Ebonyi State, the Appellants lost their right to approach the Court to ventilate their grievances. See ASABORO & ANOR V. PAN OCEAN OIL CORPORATION (NIG) LTD & ANOR (2017) LPELR-41558 (SC); NASIR V. CIVIL SERVICE COMMISSION KANO STATE & ORS (2010) LPELR-1943 (SC); HASSAN V. ALIYU & ORS (2020) LPELR-1357 (SC).
In conclusion, the appeal fails and same is hereby dismissed. The judgment of the Court of Appeal, Enugu Judicial Division delivered on 18th June, 2015 in appeal No. CA/E/203/2013 is hereby affirmed. I abide by all the consequential orders made in the lead judgment.
- M. E. AJOGWU SAN. For Appellant(s)
- HON. AUGUSTINE NWANKWAGWU ESQ.
ATTORNEY – GENERAL FOR EBONYI STATE For Respondent(s)