In The Court Of Appeal


On Monday, May 31, 2021


Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal






MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the Ruling of the High Court of Delta State in suit NO: A/M/2016 delivered by His Lordship, T.O. Dial J, on 11-11-2016 at Asaba Judicial Division. The Appellants as Applicants had on the 17th February, 2016 filed a suit for an order of mandamus compelling the Respondents to rectify an error in the Name of the Applicant in the Certificate of Occupancy issued to the 1st Appellant/Applicant herein in respect of its application for a Certificate of Occupancy. The Governor of Delta State then had approved the issuance of the Certificate of Occupancy; but the said certificate issued on 16-1-2004 had the word “limited” omitted from the 1st Appellant’s name, hence this suit taken after persistent complaints and a letter demanding the rectification of the error, yielded no result. The Appellants’ application for the grant of a right of occupancy was made on 10-11-2002 and approved on 12-11-2002; by the affidavit evidence of the Applicant/Appellant a letter dated 14-2-2011 was written to the 1st – 3rd Respondents for the rectification of the name to include the omitted word “Limited” to “Macronics” to reflect the Applicant/Applicants juristic and true name by which the application for and the approval for issuance of the Certificate of Occupancy was given by the Governor as the documentary evidence showed. Inspite of the issuance of the said Certificate on 16-1-2014 and a letter of 14-2-2011 for the rectification of the error complained of; the suit was filed on 17-2-2016. Upon a preliminary objection raised by the Respondents herein that the suit was statute barred being caught by Section 2(a) of the Public Officers Protection Law, Cap page 23, Laws of Delta State 2008 the trial Court upheld the objection and dismissed the action. This appeal challenges the order of dismissal made and on the grounds upholding the preliminary objection. The Appellants’ Brief of Argument filed on 14-4-2017 was adopted at the hearing on 22-3-2021 and in it raised a sole issue to wit;
Whether the lower Court was right to have found that cause of action in this suit arose in 14-02-2011 and that nothing in the Appellants averments disclosed a continuance of damage or injury against the Appellants to avail them, the operation of the provisions of Section 2(a) of the Public Officers Protection Law, Cap page 23 Laws of Delta State, 2008.

The 1st – 4th Respondents also adopted their joint 1st – 4th Respondents Brief of Argument filed on 11-11-2017 at the hearing, wherein a notice of preliminary objection embedded therein was raised thus:
The Appeal was incompetent ab initio and the Court lacked jurisdiction. By virtue of the provisions of Section 241(1) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended and Section 24 of the Court of Appeal Act, appeal on the grounds of mixed law and facts leave of the lower Court must be sought. Arguing its preliminary objection, the Respondents’ counsel had contended that Section 241(1) and 242(1) of the 1999 Constitution read together with Section 24 of the Court of Appeal Act, prohibit appeals on grounds of mixed law and facts without the leave of the lower Court or this Court first sought and granted. The learned counsel relies on the case of Alhaji Rasaki Abiola Ekunola Vs Central Bank of Nigeria (2013) 15NWLR Pt. 1377 page 224 at 260 to argue that the substantive grounds of the appeal considered conjunctively with their particulars of error shows that facts were to be taken into consideration and which he disputed as not having been reckoned by the trial Court. Counsel contended that even the particulars to Ground 1(b) asserts continuance of injury or damage which had not ceased; and was, therefore, not a mere question of law but of facts which needed to be pleaded and proved by evidence; relying on INEC Vs Ogbadibo Local Government FWLR Pt. 812, page 1586 at 1614.

It was argued that failing to obtain leave before the instant appeal, this Court had no jurisdiction to entertain the suit as it was incompetent ab initio; Olasapo Timothy Vs Joel Fabusuyi (2013) 1 NWLR Pt. 1335; Peretu Vs Gariga (2013) NWLR Pt. 1348 page 414 at 433, Madukolu Vs Nkemdilim (1962) 2 SCNR 341 on the principle that a Court is competent when the case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction also relied upon, to contend that the Appellant’s failure to obtain such leave makes their appeal incompetent, incurably defective and consequently that this Court lacks jurisdiction to entertain the appeal ab initio. The Appellant’s reaction is in their Appellants’ reply Brief filed on 1-6-2017 and which was adopted to the end that the preliminary objection has no legal basis and should be dismissed; the learned counsel relies on the case of A.I.B. Ltd Vs Packoplast Nigeria Ltd (2004) 3 NWLR (Pt. 859) 129 at 143, Uko Vs Ekpenyong (2006) 5NWLR (Pt. 972) 70 at 91 and Nigeria National Supply Co. Ltd Vs Establishment Sima of Vaduz (1990) 7 NWLR (Pt. 164) 526 to contend that the Grounds of the Notice of Appeal, by their particulars thereof, had disclosed grounds of law alone; and that no leave was required before the appeal could be filed. That the preliminary objection be dismissed.

A perusal of the Grounds of Appeal and the particulars thereof, no doubt depicts them as those based on mixed law and facts. There is no denying that the Applicants/Appellants had averred their reliance on an application or letter written for the certificate of occupancy on a particular date and from which date nothing positive was done by the Respondents in answer. It is a question of fact to be proved; that is, the existence of that fact and the refusal to act; which fact of refusal remained unascertained as to a specific date or period of that refusal.
The case law Authorities cited by the Appellants, no doubt, state the correct position of the law but they have not, consingly, shown that the decision on appeal, was appealable as of right on the basis of those cited cases. Rather, what is obvious is as the Appellants counsel rightly submitted that the decision appealed is a final decision; see A.I.B. Ltd Vs Packoplast Nigeria Ltd (Supra) where the Apex Court held that a decision is final once there is no further reference to a Court after it has made its order that something be done. That is, all the rights and not just one issue have been determined, just as in the instant case. Section 241 of the 1999 Constitution provides for appeals to this Court from the decisions of the Federal High Court or a High Court as of right in the following cases:
(a) Final decision in any Civil or Criminal proceedings before the Federal High Court or the High Court sitting at first instance;
The Section 242(2) of the Constitution provides for leave in some instances and makes it subject however, to Section 241(1) that provides for Appeal as of right in final decisions of the High Court sitting at first instance. That is the position herein. The ruling dismissing the suit was a final decision of the Court sitting at first instance. It did not require any leave of the trial Court or this Court to appeal. The objection fails and is dismissed therefore.

Now, to the merit of the Appeal
The Respondent had argued that the Appellant’s action was statute barred and was rightly struck out having been filed well after 3 months from the date of the injury complained of. It was submitted that the cause of action arose since the date of the letter of complaint being 14th February, 2011 to rectify the error in the certificate. The learned counsel relied on Section 2(a) of the Public Officers Protection Law of Delta State, Cap page 23, 2008; Adigun Vs Ayinde (1993) 8 NWLR (Pt. 313) SC 516 at 535 to argue that the Appellants’ cause of action arose after the letter dated 14th February, 2011 was written to the 1st – 3rd Defendant requesting for the rectification of the error on the certificate of occupancy i.e its correction and which they failed and/or neglected to do. That time started to run from that date and that Appellant slumbered and slept on their rights and woke up on 19th February of 2016 to file the suit vide originating summons. Counsel relies on Central Bank of Nigeria (CBN) Vs Amao (2007) ALL FWLR Pt. 351, page 1490 – 1495 to contend that the date of the accrual of action is reckoned from the statement of claim or the originating summons as seen on the originating summons in this case by the Affidavit in support; that a period of 5 years had been shown to be as against a suit within 3 months of the cause of action and or cessation thereof and that the appeal be dismissed and the judgment of the trial Court that the action was statute barred be upheld.

I agree that the cause of action in this matter on appeal arose on the 14-2-2011 when the Appellant wrote a letter for the rectification of the error detected on the certificate. The in-action or response from that date can be likened/reckoned to a refusal to act and at worse a neglect to act in the performance of a public duty as pleaded. The Appellant had the legal right, which had congealed and accrued on that date to challenge that neglect, refusal or in-action in respect of the rectification of the error occasioned by the mistake in the omission of the word “Limited” in the 1st Appellant’s Name as contained in the Certificate of Occupancy purportedly issued pursuant the Application for and approval by the Governor of Delta State. Not having so sued within 3 months, the action was statute barred. His legal right to action through the judicial process had been extinguished. He however, still has his claim to entitlement to the Certificate of Occupancy which can only be pursued through means other than by a law suit. See CBN Vs Amao, NPA Plc Vs Lotus Plastics Ltd (2006) ALL FWLR (Pt. 297) 1023 – 1063; Olaleye Fajiimolu Vs University of Lagos (2007) ALL FWLR Pt. 350, page 1361 – 1375 at 1374. I also agree that the right of action vide litigation having been extinguished, there was no cognizable basis for the trial Court to assume jurisdiction in the trial of the suit; the Court was therefore, right to strike out the suit at the stage it did, as it no longer had jurisdiction to proceed to the trial, the condition precedent as to the period of commencement not having been complied with.

The Appellant had argued that there was a continuance of damage or injury by the neglect or refusal to rectify the error/mistake in the Register/certificate of occupancy. The simple answer is that, in a situation where a party relies on the fact of continuance of injury or damage, his suit must be instituted within three months next after the cessation thereof that damage or injury alleged to be continuing. These Appellants cannot rely on this prank for the justification of their belated suit in the circumstances, herein. This is because, it had not been shown when the damage or injury said to be a continued one started and when it ceased. The two relevant periods or dates for that event of damage and/or injury must be specifically pleaded or disclosed. This had not been shown in the Affidavit in support of the originating summons.
​Be it noted that even the 14-2-2011 earlier reckoned as the date of event of cause of action, standing alone, cannot satisfy the requirement of a justification sought under the canopy of a continuing injury or damage as the closing date being the date of ceasure or cessation of the event had not been disclosed to enable any reckoning against the background of the suit taken out many years after the detection of the error, and the complaint. Sadly, the Appellants did not by any pleadings or document show the evidence of refusal or neglect by the Respondent to show that the suit was well within 3 months after that event. See Attorney General Rivers Vs Attorney General Bayelsa; Aremo II Vs Adekanye FWLR (Pt. 224) 2113 at 2131, the Appellants herein who only wrote once in 2011 to the 1st – 3rd Respondents and went to bed until February, 2016 when this action was brought at the trial Court acted against the grain of the protection accorded public officers against State claims. The Court, in Bank of the North Limited Vs Haruna Garba Gana (2006) ALL FWLR (Pt. 296) page 862 – 886 had this to say:
“A statute of limitation of action is designed to stop or avoid situations where a Plaintiff can commence an action anytime he feels like doing so, even when human memory would have normally failed and therefore failed putting it in another language, by the statute of limitation a Plaintiff has not the freedom of the air to sleep or slumber and wakeup at their own time to commence an action against a Defendant.”
The different statutes of limitation which are essentially founded on the principles of equity and fair hearing are essentially founded on the principles of equity and fair hearing at play; it will not avail such a sleeping or slumbering Plaintiff. He will be stopped from continuing the action and that is a just and fair situation. See generally my decision in Mandate International Limited Vs Dangote Cement Plc & Anor (2014) LPELR 22666 CA 8th January, 2014. On the whole, I find that there was no proof of continuance of injury nor its cessation date from which period, the three months period limited for the institution of an action under the public officer’s protection law, may be computed to verify the Appellants’ assertion that he had not fallen fowl but still within its canopy in instituting the suit, leading to this appeal. The Appellants have no legal terra in the institution of this suit brought well outside the law and therefore, incompetent by fact of the Public Officers Protection Law, Delta State 2008 Section 2(a) thereof. The incompetent suit was rightly struck out at the trial Court. The appeal against same is dismissed and the Judgment/Ruling of 17th February,2016 in Suit No: A/M/9/2016 striking out the suit is affirmed.

JOSEPH EYO EKANEM, J.C.A.: I read before now the lead judgment of my learned brother DANJUMA, JCA, which has been delivered. I agree with the reasoning and conclusion therein and hold that the appeal has no merit. I also dismiss the appeal and affirm the decision of the lower Court.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the benefit of reading in draft the leading judgment; the reasoning and conclusions therein just delivered by my learned brother MOHAMMED AMBI -USI DANJUMA, JCA and I agree with him.

I fully adopt the eloquent elaborate reasons so well set out in the lead judgment as mine and I have nothing more to add.
​I abide by all consequential order(s) in the lead judgment.


FRANK N. ESENWAH, ESQ For Appellant(s)