PROFESSOR ANGO ABDULLAHI & ORS v. NIGERIAN ARMY & ORS
(2019)LCN/12856(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of March, 2019
CA/J/388/2017
RATIO
COURT AND PROCEDURE: WHETHER TORTIOUS ACT CAN BE DESCRIBED AS BREACH OF FUNDAMENTAL RIGHT
“In the notorious and fairly similar case of Chief (Dr.) Mrs Funmilayo Ransome-Kuti & Ors v. A.G. of the Federation & Ors (1985) 2 NSCC 879, (1985) LPELR-2940 (S.C) concerning the assault, battery and burning down of Late Fela Anikulapo-Kutis property by soldiers, for which Felas mother (first appellant) and others brought action also like this by way of Writ of Summons for damages for assault, battery and trespass to chattel, it was argued by the plaintiffs, again like here, that their action was actually for enforcement of fundamental rights and not a simple civil one for damages for tort, and that in any case it was immaterial how they framed it. To that, the apex Court (Karibi-Whyte, Oputa and Eso, JJ.S.C.) responded this way. First, Oputa J.S.C at (1985) LPELR-2940 p. 92-93 The words of Section 19(1) namely inhuman treatment, torture, and degrading treatment suggest something continuous and rather more permanent than an occasional assault and battery committed and done with. They envisage where, on a proper application, the High Court may make an order under Section 32 (2) of the same 1963 Constitution to stop the subsisting torture, punishment or inhuman treatment. (Emphasis mine)” PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES:
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. PROFESSOR ANGO ABDULLAHI
2. ALHAJI MACCIDO MUHAMMAD
3. ALHAJI SALISU MUSA
4. KAMAL ADAMU – Appellant(s)
AND
1. NIGERIAN ARMY
2. CHIEF OF ARMY STAFF
3. GENERAL OFFICER COMMANDING NIGERIAN ARMY, 1 MECHANIZED DIVISION – Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal raises very interesting issues on the law relating to enforcement of fundamental rights under Chapter IV of the 1999 Constitution of this country. It looks at what really amounts to infringement of fundamental right within the contemplation of Chapter IV of the 1999 Constitution of this country and so enforceable by action under Section 46 of the Constitution and the proper mode of pursuing such rights under the Fundamental Rights (Enforcement Procedure) Rules 2009. It also looks at the question whether a Writ of Summons is an acceptable mode of commencing a fundamental right action under the 2009 Rules, and, if it is acceptable, whether the ordinary Writ of Summons without more will suffice; if not, what does an applicant need do to render it competent.
The appeal also highlights the additional issues of when a Court may properly decide an issue without hearing parties and whether an action caught by Section 2(a) of the Public Officers Protection Act can be resurrected by failure of the public officer affected to raise the issue within 21 days as required by the Rules of the Federal High Court.
The appeal itself is against the Ruling/decision of the Federal High Court, Bauchi Division (delivered by M.S. Abubakar J.) on 8th March 2017 dismissing in limine appellants Suit against the respondents. The said ruling was sequel to a preliminary objection by respondents that appellant suit was barred by Section 2(a) of the Public Officers Protection Act.
Appellants, in the said action which they commenced by way of Writ of Summons on 8th of March 2016, claimed against respondents:
1. A Declaration that the act of the defendants, their agents and servants of shooting at an official vehicle a black Toyota Prado Jeep with Registration Number: 06H 02 BA, the plaintiffs were travelling in on 17th March, 2015, at Tirwun Village along Bauchi Maiduguri Road as well as the threat to further shoot the plaintiffs amounts to assault, battery, intimidation, threat to life and damage to property.
2. An order directing the defendants to pay the plaintiffs the sum of 200,000,000.00 (Two Hundred Million Naira) only as general damages for assault and battery, threat to life, shock, embarrassment, harassment and damage to property.
3. An order directing the defendants to pay the plaintiffs the sum of 200,000,000.00 (Two Hundred Million Naira) only estimated to be the cost of this action including lawyers fee.
4. Any other relief incidental to or consequential upon the plaintiffs claims.
What led to the action was succinctly put by the trial judge in his judgment as follows at p. 189 of the records:.on or about 17th March, 2015 the respondents were travelling to the main campus of the Bauchi State University in a black Toyota Prado Jeep with official Reg. No.06H 02 BA and on reaching Turum Village along Bauchi-Maiduguri road, they got to a convoy of military vehicles moving in the same direction but at a speed lower than that of the plaintiffs/respondents. That as the 1st respondent was in a hurry to go to the University in order to chair a meeting in his capacity as the Pro- Chancellor of the University, his driver i.e. the 2nd respondent, attempted to overtake the military convoy but the pilot car warned him not to do so. However, the 2nd plaintiff did not heed the warning and he increased the speed of the car with a clear intention to overtake the convoy, and as he was about to overtake, one of the soldiers in the convoy shot the front tyre of the plaintiffs Jeep and immobilized it instantly. None of the occupants of the Jeep was hurt or injured.
I deem it necessary to throw a little more light on the reason for the warning by the soldiers to appellants, which they failed to heed as stated by the lower Court, the consequence of which precipitated the events that led to appellants suit. Respondents swore to it in paragraph 3(e) i ix of the affidavit in support of their objection as follows:
i. That on the 18th March 2016 troops from the 3rd defendants/appellants unit were on transit to 7 Division enroute to Maiduguri-Bauchi.
ii. That the Military convoy of 7 (seven) cars was carrying military hardware comprising explosives and ammunitions.
iii. That the convoy was made of three (3) Nigerian Army Hilux trucks, three (3) civilian trailers, and a pilot car.
iv. That on or before 08.40hrs around Awala roundabout, the rear vehicle of the convoy spotted a black Jeep on high speed trying to overtake the convoy.
v. That the soldier in the rear vehicle warned the driver of the Jeep not to overtake them just right after the roundabout as it was a vulnerable spot due to the slow movement of the convoy after negotiating the roundabout.
vi. That he refused to heed the soldiers warning not to overtake since the driver could not have seen past the convoy of seven (7) vehicles right after negotiating a roundabout.
vii. That the drivers refusal to heed the soldiers warning put the soldiers and the expensive and dangerous military hardware at the risk of falling in the hands of Boko Haram as it is in their habit of carrying out ambush attacks in vulnerable areas such as bridges, speed bumps, roundabouts, potholes etc.
viii. That the drivers reckless conduct made the soldiers suspicious of the vehicle and awaited the highly articulated reasoning of its team leader to immobilize the vehicle in line with the Operation Lafiya Dole escort duty rules of engagement.
ix. That to that end, the soldiers skillfully opened fire on the front tyre of the Jeep in order to bring the vehicle to a halt without undue damage to the vehicle or its occupants. That no casualty was recorded nor a single injury occasioned during the exercise.
The appellants did not dispute respondents assertion that their vehicle (Black Toyota Prado Jeep) was in high speed and was in fact trying to overtake the soldiers seven-vehicle convoy at a roundabout at the time of the incident. They also admitted respondents assertion that none of them was hurt in the incident. These they stated in paragraphs 9, 10, 11, 12, 13 and 15 and 16 of their said statement of claim as follows:
9. The plaintiffs aver that none of them was shot but the official vehicle a black Toyota Prado Jeep with Registration No. 06H 02 BA, the 3rd Plaintiff was driving them in got damaged as a result of about eleven bullets fired at them.
10. The plaintiffs further aver that as at the time the incident happened, the 1st plaintiff was wearing his royal attire as the District Head of Yakawada and Magajin Rafin Zazzau which should have ordinarily attracted some degree of respect from the soldiers even if they did not know who he was.
11. It is the averment of the plaintiffs that even after the gun shots intentionally and voluntarily targeted at them and their vehicle and after they stopped, the soldiers still came out with cocked guns threatening further shots and asked the 3rd plaintiff to get out of the vehicle which he did in a very serious state of shock thinking they were going to kill him and his passengers.
12. When the soldiers were asked as to why the shooting, they responded that the 3rd plaintiff was trying to overtake them and they were carrying sensitive materials.
13. The 3rd plaintiff really wanted to overtake them because other vehicles moving towards the same direction were allowed to drive past the soldiers vehicle without any form of hindrance from the soldiers or anybody and the plaintiffs, particularly the 1st plaintiff, were in a haste to attend a meeting at Gadau in Itas/gadau Local Government of Bauchi State and the soldiers were driving so slowly that if they were not overtaken the 1st plaintiff would miss out for the meeting.
15. All the plaintiffs were highly traumatized by the act of the soldiers which are agents of the defendants and the 1st plaintiffs proper feeling of dignity, humanity and pride was seriously affected negatively.
16. Whereof by reason of the matters aforesaid, the Plaintiffs are aggrieved and claim against the Defendants jointly and severally as follows: (see claims earlier reproduced).
In what seems an apparent bid to wriggle out of the clutches of the Public Officers Protection Act, a strategy the lower Court tagged an afterthought, appellants, apparently preparing ground to take cover in the provisions of Order 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 stating that An application for the enforcement of Fundamental Right shall not be affected by limitation Statute whatsoever, swore in paragraph 3(d) of their counter affidavit to the said objection that:
3(d) That the action of the defendants/applicants is in violation of the plaintiffs/respondents right to their lives, human dignity, freedom of movement, and rights to own property. (Italics mine)
They made their stand clearer in their written address filed along with that counter affidavit when they argued there that:
(1) The preliminary objection of respondents was filed out of time and without leave of Court contrary to Order 29 Rules 1 and 4 of the Federal High Court (Civil Procedure) Rules 2009.
(2) That there is no time limit for filing their action which, according to them, was actually one for enforcement of fundamental right under Chapter IV of the Constitution.
(3) That the action of the defendants was unlawful, unconstitutional and malicious and that took their case outside the provisions of the Public Officers Protection Act. (italics mine)
The respondents on their part countered that appellants suit was not one for enforcement of Fundamental Rights under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 but a simple one for damages for civil wrongs of tort and so does not enjoy the provisions of Order 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009.
Ruling of the trial Judge
In its Ruling of 8th March 2017, the lower Court upheld respondents objection on three grounds as follows:
1.On respondents non-compliance with the provisions of Order 29 Rules 1 and 4 of the Federal High Court (Civil Procedure) Rules 2009 requiring objection to jurisdiction to be raised within 21 days of service of processes, it held that where the Rules of Court conflict with the provisions of a statute or decision of an appellate Court as was the case in the case before it, the statute or decision of an appellate Court will prevail as it is never too late to raise issue of jurisdiction.
2. On appellants contention that their action was for enforcement of fundamental rights under Chapter IV of the 1999 Constitution of this country and Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 permits them to approach the lower Court even by way of Writ of Summons, the lower Court, while agreeing with that submission, ruled that such action commenced by way of Writ of Summons is also expected to comply with Order 2 Rules 1, 3, 4 and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009 requiring applications for enforcement of fundamental right to be supported with Statement of facts, affidavit and counsels written address and appellants failure to accompany their Writ of Summons with the said processes meant that it cannot qualify as or take the place of an application for enforcement of fundamental right notwithstanding the provision of Order 2 Rule 2 of the Rules, and their suit is not an application for the enforcement of fundamental right but an ordinary civil suit that can be defeated or affected by statute of Limitation and was statute barred as same was filed 11 months and 20 days after the accrual of the cause of action, as against 3 months period allowed by S. 2(a) of the Public Officers Protection Act.
3. Thirdly, that the Federal High Court, going by the provisions of Section 251(1) paragraphs (p), (q) and (r) of the 1999 Constitution and the decisions in KLM Royal Dutch Airlines v. Taher (2014) 2 NWLR (PT 1393) (no page cited) (C.A.) and Obiuweubi v. C.B.N. (2011) 7 NWLR (PT 1247) 465 (S.C.), lacks jurisdiction to entertain cases founded on tortuous liability like the instant one assuming it was even filed within three months in line with S. 2(a) of the Public Officers Protection Act.
It must be noted that the Court itself raised and decided this last issue of its own jurisdiction without any input from parties and their counsel.
Also noteworthy in this ruling is that, apparently following its reasoning that it even lacked subject matter jurisdiction over appellants case, the lower Court did not give an answer to appellants third contention of respondents action being unconstitutional and malicious and so not covered by S. 2(a) of the Public Officers Protection Act. Appellants in this appeal have not questioned the lower Courts failure to decide that issue, very slippery as the said issue ordinarily even is, as is evident in the decisions of this Court and those of the Supreme Court on appeal in the cases of Ekeogu v. Aliri (1991) LPELR-1079 (S.C.); Ibrahim v. Lawal (2015) LPELR-24736 (S.C.) and Kwara State Pilgrims Welfare Board v. Baba (2018) 9 NWLR (PT 1623) 36 @ 40-50, just to mention a few. Having not complained against the lower Courts failure to decide that issue, it is assumed (that also being its effect in law) that appellants do not intend to pursue the issue further here. In any event, no arguments were canvassed by appellants even by mistake in this appeal on it.
Suffice to say that appellants filed nine Grounds of Appeal against the lower Courts Ruling and have formulated the following five issues from them for our determination:
1. Whether the learned trial judge was right when he held that the appellants action was not bordering on fundamental rights of the appellants or breach of Chapter IV of the Constitution of the Federal Republic of Nigeria 1999.
2. Whether the learned trial judge was right when he refused to strike out the respondents Notice of Preliminary Objection notwithstanding the fact that there was apparent non-compliance with the time of filing as stipulated by the Rules of the Court.
3. Whether the learned trial judge was right when he dismissed appellants suit on grounds of non-compliance with the procedure for bringing an action under the Fundamental Rights (Enforcement Procedure) Rules.
4. Whether the learned trial judge was right when he held that appellants action was statute barred notwithstanding the nature of their claim before the Court.
5. Whether the learned trial judge was right when he suo motu raised the issue of applicability or otherwise of Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 without giving the parties an opportunity to address him thereon.
On their part, the respondents framed four issues for determination as follows:
1. Whether the appellants claim that his suit is for enforcement of fundamental human rights was an afterthought.
2. Whether the learned trial judge was right when he held that the appellants action was statute barred notwithstanding the nature of their claim before the Court.
3. Whether the rules of Court can dictate how and when an objection to the jurisdiction of the Court can be raised.
4. Whether the issue of jurisdiction of the Federal High Court to determine tortuous claims raised suo motu by the learned trial judge occasioned miscarriage of justice on the appellants and as such could vitiate the entire ruling of the Court.
Apart from issues 1 and 3 of the respondents which are in my humble opinion just legal arguments and not issues in the strict sense of the word, I am of the view that the issues framed by respondents are covered by those of the appellants, overlapping in several respects appellants issues also are. In the event, I shall adopt the issues formulated by appellants in deciding this appeal.
Issue 1: The summary of the argument of Mr. Yunus Ustaz Usman, S.A.N, for appellants on issue 1 is that appellants case at the lower Court was a complaint against breach of their fundamental right to life, liberty and property guaranteed by Chapter IV of the Constitution of the Federal Republic of Nigeria which Section 46(1) of the same Constitution allows them to approach either the Federal High Court (the lower Court) or a State High Court for redress. Citing Bello v. Attorney General of Oyo State (1986) 5 NWLR (PT 45) 824 at 831, counsel argued that the current position of the law is that irrespective of the manner an issue of breach of fundamental right is raised the Court is entitled to determine it as a fundamental right issue. The lower Court was therefore wrong, he submitted, in holding that appellants action did not border on fundamental rights or breach of provisions of Chapter IV of the Constitution.
In response, Mr. Chinedu Mbah for respondents directed our attention to the reliefs claimed by appellants as well as their averments and relied on the case of Ransome-Kuti & Ors v. A.G. of the Federation & Ors (1985) 2 NSCC 879, (1985) LPELR-2940 (S.C) in supporting the decision of the lower Court that appellants action was simply for the torts of battery, intimidation, assault and trespass to their chattel and not for enforcement of fundamental right pursuant to Chapter IV of the Constitution. Counsel argued that the procedure spelt out in the Fundamental Rights (Enforcement Procedure) Rules 2009 is a special one made for enforcement of Fundamental Rights pursuant to Section 46 of the Constitution so an application for enforcement of fundamental rights can only be properly commenced in strict compliance with that procedure. That position, according to counsel, is further reinforced by Order 2 Rule 2 and Order 9 of the Fundamental Rights (Enforcement Procedure) Rules. Counsel placing emphasis on the phrase subject to the provisions of these Rules appearing in Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules providing that “An application for the enforcement of the Fundamental Rights may be made by any originating process accepted by the Court which shall be subject to the provisions of these rules, lie without leave of Court, submitted that Order 2 Rule 2 only dispensed with the requirement of first seeking leave of Court to commence Fundamental Rights enforcement proceedings that was in the 1979 Rules. For that reason, learned counsel complained, even the lower Court erred in law by saying that Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 allows applicants, nay the appellants, to apply for enforcement of Fundamental Right by any other process (in this case, writ of summons) outside the procedure spelt out in the Fundamental Rights (Enforcement Procedure) Rules 2009.
On issue 2, Mr. Usman for appellants submitted that the lower Court was also wrong in entertaining respondent preliminary objection challenging its jurisdiction when same was not brought within 21 days of service on them of appellants originating process as required by Order 29 Rules 1, 2, 4 and 5 of the Federal High Court (Civil Procedure) Rules 2009. Rules of Court are meant to be obeyed, counsel submitted, citing Williams v. Hope Rising Voluntary Funds Society (1982) 1 p.2 S.C. 145 @ 154 -155.
In response, Mr. Mbah submitted that issue of jurisdiction can be raised at any time in the proceedings; that where Rules of Court clash with a statute or a decision of the appellate Courts the latter would prevail so the lower Court was right in entertaining his clients application.
On issue 3, Mr. Usman, S.A.N., argued that contrary to the decision of the lower Court, non-compliance with the procedure for raising issue of breach of appellants rights under Chapter IV of the Constitution does not defeat appellants cause of action and the lower Court was wrong in holding otherwise. Learned silk called in aid among others the Supreme Courts decision in Saude v. Abdullahi (1989) 4 NWLR (PT 166) 387 @ 419 where it was held that an applicant seeking to enforce a fundamental right under Chapter IV of the Constitution has an option to proceed by way of motion and to use Form 1 or proceed by originating summons and to use form No 3 in the appendix. The position of the Supreme Court in Saude v. Abdullahi regarding Fundamental Rights (Enforcement Procedure) Rules 1979 is as relevant under the present
Fundamental Rights (Enforcement Procedure) Rules 2009 because the 2009 Rules does not restrict the mode of commencement of action there under to only originating motion but widens it to include any mode accepted by the Court, counsel argued. In any event, he continued, the primary duty of Courts is to decide the rights of litigants on their merits and not to be constrained by forms of action. Rules of Court, he added, are mere handmaids in that quest and should not be allowed to defeat justice by strict adherence to them. Jurisdiction to hear a matter is not defeated by non-compliance with rules of Court, counsel also submitted, so the lower Court was wrong to dismiss appellants suit by reason merely of the mode by which they chose to commence it, even assuming, but without conceding, that they were wrong in choosing to proceed by way of Writ of Summons rather than originating motion under Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009.
Mr. Mbah was in support of the decision of the Court, even as he was of the view that the lower Court erred in law in even suggesting that appellants could properly proceed for enforcement of fundamental right by any means or procedure other than originating motion as spelt out in the Fundamental Rights (Enforcement Procedure) Rules 2009.
On issue 4, appellants, anchoring their argument on their contention that their Writ of Summons was for enforcement of fundamental right and properly before the lower Court, argued that the provisions of Order 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 stating that An application for the enforcement of Fundamental Right shall not be affected by any Limitation statute whatsoever applied to their action and the lower Court was wrong in dismissing it. They submitted that the Fundamental Rights (Enforcement Procedure) Rules 2009 having been made pursuant to the provisions of the 1999 Constitution, the provisions of Section 1(1) of the Constitution making it supreme over all other Laws inure to the Rules and their action and render Section 2 (a) of the Public Officers Protection Act ineffective.
Mr. Mbah for respondents again supported the decision of the lower Court on this issue and cited a number of cases to support its reasoning that where Rules of Court clash with statutes or decisions of appellate Court the former will give way.
On issue 5, Mr. Usman argued that it is wrong and amounts to denial of fair hearing to appellants for the lower Court to by itself raise and decide the applicability of Section 251(1) of the Constitution to appellants case and decline jurisdiction on that ground. Citing Egbuchu v. Continental Merchant Bank & Ors (2016) 8 SCM 14 at 26 – 27 in support of this contention, learned silk urged us to also resolve this issue in appellants favour, allow the appeal and set aside the decision of the lower Court.
In response, Mr. Mbah argued that given the correct finding of the lower Court that the action of appellants was barred by the Public Officers Protection Act, this later pronouncement of the lower Court was academic and has not occasioned any miscarriage of justice. Miscarriage of justice is the ground on which appeals are allowed, he submitted, citing Sunday v. State (2017) 50 WRN 1 @ 18. In any event, counsel continued, citing Sylva v. INEC (2016) 18 WRN 1 @ 30, every Court possesses jurisdiction to decide whether or not it has jurisdiction as the lower Court did. Counsel finally urged us to dismiss the appeal with costs of 20,000,000.00.
Resolution of issues
Issue 1 is whether the learned trial judge was right when he held that appellants action did not border on breach of fundamental rights under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999. I think this issue of the true nature of appellants action even goes deeper than the way both counsel argued it. The issue here, firstly and most importantly, is whether appellants claim of damages for battery, assault, intimidation, trespass to their chattel and threat to their lives, which infringement took place only in a single brief instance on 17th March 2015, comes within the contemplation of breach of fundamental right guaranteed by Chapter IV of the 1999 Constitution and enforceable by action under Section 46 of the same Constitution, and secondly, whether the entire action as framed was in any case one for enforcement of fundamental right.
In the notorious and fairly similar case of Chief (Dr.) Mrs Funmilayo Ransome-Kuti & Ors v. A.G. of the Federation & Ors (1985) 2 NSCC 879, (1985) LPELR-2940 (S.C) concerning the assault, battery and burning down of Late Fela Anikulapo-Kutis property by soldiers, for which Felas mother (first appellant) and others brought action also like this by way of Writ of Summons for damages for assault, battery and trespass to chattel, it was argued by the plaintiffs, again like here, that their action was actually for enforcement of fundamental rights and not a simple civil one for damages for tort, and that in any case it was immaterial how they framed it. To that, the apex Court (Karibi-Whyte, Oputa and Eso, JJ.S.C.) responded this way.
First, Oputa J.S.C at (1985) LPELR-2940 p. 92-93
The words of Section 19(1) namely inhuman treatment, torture, and degrading treatment suggest something continuous and rather more permanent than an occasional assault and battery committed and done with. They envisage where, on a proper application, the High Court may make an order under Section 32 (2) of the same 1963 Constitution to stop the subsisting torture, punishment or inhuman treatment. (Emphasis mine)
Karibi-Whyte, J.S.C., reasoned along the same vein, saying that the provisions of the present Section 34 of the 1999 Constitution stating that every individual is entitled to respect for the dignity of his person and accordingly no person shall be subjected to torture or to inhuman or degrading treatment contemplates only treatment arising from criminal process. Hear His Lordship (Karibi-Whyte, J.S.C.) at LPELR-2940 p.68-69:
It seems to me fairly obvious that the enforcement of the right not to be tortured or subjected to inhuman treatment or degrading treatment under the provisions of S.19(1) [of the 1963 Constitution [now Section 34 of the 1999 Constitution] by means of Section 32 (now Section 46] contemplates torture, inhuman treatment arising from criminal process. It does not envisage ordinary civil actions arising from civil wrongs. Where a civil action is contemplated from wrongs arising from civil wrongs, the individual is entitled to resort to his civil remedy. In my opinion the purpose of Chapter III [now Chapter IV] is to preserve the civil rights of the citizen within the limits and scope allowed by law.
The rights conferred on all the citizens though described as fundamental do not, as was being suggested by Mr. Braithwaite, override all laws. The right is fundamental in the sense that it inures in man as homo sapiens, as a member of the political community, by virtue of his association in it. Thus an action brought to claim damages from trespass is a tort, simpliciter. It is not an action brought under Section 19(1) and the two actions are clearly not interchangeable. It may well be that the facts relied upon for an action may support an action under Section 32 for the enforcement of a right under Section 19(1); but the negative formulation of the right and the redress prescribed under S.32(2) which is the making of such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any rights to which the person who makes the application may be entitled under the Chapter, makes all the difference.
Eso, J.S.C., in lead judgment had a similar opinion, saying thus at p. 33 of LPELR-2940:
I think it would be more appropriate to discuss the appellants case first, for if the appeal succeeds thereupon, it would be unnecessary to discuss the issue of liability by the State in tort upon which the appellants counsel has protested, so vehemently in this Court, that he never based his action. Though he did!
Section 19 of the 1963 Constitution provides that No person shall be subjected to torture or to inhuman or degrading treatment or other treatment.
This is no doubt a right guaranteed to everyone including the appellants by the Constitution.
We are concerned here with cruel and unusual punishment for it is this that could amount to inhuman treatment which in Prop v. Dulles 356 US 86, (1958) pp.100-101 the Supreme Court of the United states regards as one which must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Yet neither the Magna Carta nor the Eighth Amendment to the Constitution would be equated to and proceeded with except under a cause of action. If either had amounted to tort simpliciter resulting in a claim for tort to amount to a complaint under fundamental human right, there could have been no necessity for the common law tort of assault, battery, false imprisonment or even inhuman treatment. (Emphasis mine)
It is thus clear that the claims of appellants of assault and battery, threat to life, shock, embarrassment, harassment and damage to property which by their own showing happened only for a brief moment on 17/3/2015, for which they claim 200,000,000.00 (Two Hundred Million Naira) general damages, are mere civil wrongs and not a case for breach of fundamental right and enforceable as such under Section 46 of the 1999 Constitution of this country. It appears appellants, despite their present stance, were also conscious of that, judging from the way they framed their case. It is therefore not open to them to make the disingenuous argument to the contrary they made midway in the Court below and have persisted with in this Court simply because they were met with the insurmountable preliminary objection of the respondents.
The lower Court aptly described their strategy as an afterthought. I agree no less. Being an ordinary civil claim for damages for tort, their action is undoubtedly subject to all the laws applicable to such actions, including Section 2(a) of the Public Officers Protection Act relied on by respondents. In the event, I unhesitatingly resolve issue 1 against appellants.
And that renders academic all other arguments canvassed by them on the assumption that their claims are for enforceable fundamental rights under Chapter IV of the Constitution and enjoy the provisions of Order 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 stating that Limitation statutes shall not apply to actions for enforcement of fundamental right. I shall nevertheless endeavour to provide answers to those issues too. That is what this Court as an intermediate appellate Court is required to do.
In doing that, I wish to skip issue 2 for a moment and proceed to issue 3 where appellants questioned the lower Courts decision that even though Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 permit applicants for enforcement of fundamental rights under Chapter IV of the Constitution to take out any originating process and not necessarily an originating motion, such applicants must comply with the provisions of Rules 3, 4 and 5 of the same Order 2 stipulating that they file along with their action Statement in Support, Affidavit and Written Address and appellants non-compliance with that provision in their writ of summons was fatal.
This is incidentally one area of the lower Courts decision where the trial judge, Mr. Yunus Ustaz Usman, S.A.N. for appellants and even Mr. Mbah for respondents all have divergent opinions. Whereas Mr. Mbah is of the opinion that the procedure of application by Originating Motion set out under the Fundamental Rights (Enforcement Rules) 2009, which requires accompanying the said Application with Statement in Support, Grounds for the Application, Affidavit and Written Address, is the only one known and acceptable under the Rules, for which he also placed reliance on the maxim of generalia specialibus non derogant – general things do not derogate from special things (a maxim which is clearly inapplicable here given the provisions of Order 2 Rule 2 of the Fundamental Rights Enforcement Procedure Rules 2009 expressly making other forms of commencement of proceedings applicable), Mr. Usman for appellants and to some extent the learned trial judge are of the opinion that Order 2 Rule 2 of the Enforcement Rules 2009 stating that An application for the enforcement of the Fundamental Rights may be made by any originating process accepted by the Court which shall be subject to the provisions of these rules, lie without leave of Court, means applicants are at liberty to commence fundamental rights enforcement proceedings by any other originating process. Where learned silk and the learned trial judge disagree is whether an applicant who chooses to commence such proceeding by a procedure other than by originating motion, for instance with a Writ of Summons as appellants did in this case, is also required to comply with Rules 3, 4 and 5 of Order 2 stating that the application be accompanied with statement in support, grounds for the application, affidavit and written address. The trial judge reasoned that Rules 3, 4 and 5 of Order 2 applied even in such case while Mr. Usman citing the contribution of Eso, J.S.C. in Saude v. Abdullahi (1989) LPELR-3017 (S.C.) argues that the words any originating process in Order 2 Rule 2 means just that and includes a writ of summons so appellants Writ of Summons without more is sufficient.
It is true Eso, J.S.C. in his contribution in Saude v. Abdullahi (1989) LPELR- 3017 (SC) – a case which had to do with the 1979 Rules – had this to say at p. 50:
It seems to me that the whole complaint of the appellant in this respect is an attempt to draw a red herring. Let us ask the question: has the Court, that is, the High Court, jurisdiction to take an originating summons on the issues affecting Fundamental Rights? Of course the answer is in the affirmative. The Constitution itself [that is the 1979 Constitution] spells out in its Chapter IV the Fundamental Rights of the citizen. So be it, but it did not stop there. Section 42 of the 1979 Constitution gives the High Court a special jurisdiction in respect thereof. It provides-
’41 – Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
To stop here for a moment, it is my view that it would not matter by what manner that application has been made, once it is clear that it seeks redress for infringement of the Rights so guaranteed under the Constitution. Assuming the Statutory Instrument S. 1.1 of 1979 had not been made, the person seeking redress could bring the action to Court in any manner that clearly depicts complaint of the infringement of the Rights. Indeed the Statutory Instrument is so clearly worded that it does not lay the procedure therein as the only procedure by which redress could be sought. Fundamental rights are important and they are not just mere rights. They are fundamental. They belong to the citizen. These rights have always existed even before orderliness prescribed rules for the manner to be sought. (Italics mine)
His Lordship had espoused similar view in Ransome Kutis case (1985) LPELR-2940 at p. 38 by relying on among others the dicta of Fatai-Williams, J.S.C., in Aoko v. Fagbemi (1961) 1 ALL N.L.R. 40, though His Lordship in Ransome-Kuti was conscious of and did mention the fact that the Chief Justice did not exercise his Rule-making power under Chapter III of the 1963 Constitution. It is worth pointing out, however, that, as opposed to His Lordships (Eso J.S.C.) correct observation in Saude v. Abdullahi that the 1979 Statutory Instrument was so clearly worded (given that Order 2 Rule 2(2) of the 1979 Rules clearly stated that the application must be made by notice of motion or by originating summons to the appropriate Court), the provisions of Order 2 Rule 2 of the 2009 Rules are not by any means that clear. And that is the reason for the understandably sharp divergence of opinions/interpretation by the trial judge, Mr. Usman for appellants and Mr. Mbah for respondents.
For ease of reference, let me again reproduce Order 2 Rule 2 of the 2009 Fundamental Rights (Enforcement Procedure) Rules. It reads as follows:
An application for the enforcement of the Fundamental Rights may be made by any originating process accepted by the Court which shall, subject to the provisions of these rules, lie without leave of Court.
First query is: Why say that an application for enforcement of Fundamental Rights may be made by any originating process, only to immediately qualify that statement by conferring discretion on the Court hearing such application to decide the particular originating process that shall be acceptable to it?
Secondly, the Rules having by its Interpretation provision in Order 2 earlier defined an application thus:
Application means an application brought pursuant to these Rules by or on behalf of any person to enforce or secure the enforcement of his fundamental right.
and Rules 3, 4 and 5 of the same Order 2 on Commencement of Action having set out how an application under the said Rules shall be by stating that:
3. An application shall be supported by a Statement setting out the name and description of the applicant, the relief sought, the grounds upon which the relief is sought, and supported by an affidavit setting out the facts upon which the application is made.
4. The affidavit shall be made by the applicant, but where the applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit.
5. Every application shall be accompanied by a written address which shall be succinct argument in support of the grounds of the application, will an originating process like a Writ of Summons, which is incidentally the most common type of originating process in litigation, be excluded from the meaning of any originating process that Rule 2 of Order 2 says may be employed for enforcement of Fundamental rights?
If Writ of Summons can be employed, how does one bring it within the definition of Application defined by the same Rules as an application brought pursuant to the Rules given that Rules 3, 4 and 5 of Order 2 require that such application must be accompanied with Statement in Support, Grounds for the application, Affidavit and Written Address, when all of that are peculiar to Originating motion and Originating summons and not Writ of Summons? Does that mean that a Writ of Summons as an undoubted originating process is not acceptable as a means of commencing Fundamental Right Enforcement proceeding under the 2009 Rules as Mr. Mbah for respondents contends? Or does it simply mean that an applicant for fundamental rights enforcement proceeding who elects to proceed by way of Writ of Summons must reconfigure his Writ of Summons and statement of claim by introducing into them, or accompanying them with, the processes set out in Rules 3, 4 and 5 of Order 2 otherwise his process is defective and unacceptable as the trial Judge ruled in this case? Or could it even be that Mr. Usman S.A.N. is correct in his postulation that a simple and regular Writ of Summons without more meets the provisions of Order 2 Rule 2?
I am not under any doubt that there is need for a revisit of the Fundamental Rights (Enforcement Procedure) Rules 2009 by the appropriate authority. It is in dire need of some tinkering, because, depending on the angle one decides to view it, all three different views espoused by counsel on both sides and the learned trial judge seems to be, and can be, accommodated by the 2009 Rules as they presently stand.
Until that happens, I will rather go with the interpretation of Mr. Yunus Ustaz Usman, S.A.N., that a simple Writ of Summons, being an originating process under Order 2 Rule 2 of the Rules is, and should be, acceptable for enforcement of fundamental rights pursuant to Chapter IV of the 1999 Constitution of this Country, PROVIDED the applicant or plaintiff avers clearly in his Writ and Statement of Claim that his action is for enforcement of fundamental right under Chapter IV of the Constitution and equally sets out clearly the particular fundamental right of his that has been breached for which he seeks redress. Not only do I think this view is supported by the importance of Fundamental Rights and the need to protect them as shown by even the importance the Constitution of this country attaches to them (a position further underscored by dicta in both Ransome- Kuti v. A.G., of the Federation and Saude v. Abdullahi supra), I also find further support for it in the Preamble to the 2009 Rules itself as signed into law by former Chief Justice of Nigeria Idris Legbo Kutigi. That Preamble begins this way:
1. The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule. (Italics mine.)
It goes on in Paragraph 2 to also enjoin parties and their legal representatives to help the Court further the overriding objectives of the Rules, saying:
2. Parties and their legal representatives shall help the Court to further the overriding objectives of the Rules.
What are these overriding objectives of the Rules? They are contained in Paragraph 3 and states among others as follows:
3. The overriding objectives of these Rules are as follows:
(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them.
(b)
(c)
(d)The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented. (Italics mine)
(e).
(f)The Court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realization of human rights.
(g) Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the applicant or any person, the case shall be treated as urgent.
The adjective Overriding means more important than anything else in a particular situation. In other words, the Fundamental Rights (Enforcement Procedure) Rules 2009 itself also requires that more important than anything else, any Court dealing with fundamental right enforcement action shall ensure that the Constitution, especially Chapter IV (as well as the African Charter) are expansively and purposely interpreted and applied with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them. It requires that the Court shall proactively pursue enhanced access to justice for all classes of litigants, particularly the poor, the illiterate, the uninformed, the vulnerable, the incarcerated and even the unrepresented who may not know a thing about the niceties of the Fundamental Rights (Enforcement Procedure) 2009 Rules let alone its nuances that learned trial judge, counsel and we here have been laboring to explain.
It also says the Court should also approach cases of fundamental rights enforcement in a manner calculated to among others advance human rights and culture, pursue the speedy and efficient enforcement and realization of human rights.
The technical approach adopted by the trial Judge and the even more stilted interpretation of Mr. Mbah for respondents is not in tandem with these overriding objectives. Yes, the law, generally, is that Preamble would not be taken into account where the enacting part of a statute or instrument is clear, it is equally settled too that a preamble can be an aid to construction when there is an ambiguity or when there are two conflicting views on the true meaning of an enactment, in which case the view which fits with the preamble ought to be preferred: Ogbonna v. Attorney General of Imo State (1992) 1 NWLR (PT 220) 647, (1992) LPELR-2287 (S.C.) p. 24 – 25, 76. In any case, this Preamble, as already pointed out here is not only special the rule-maker also directs that it shall guide interpretation.
But then, that should be of scant consolation, if any at all, to appellants in the context of this case, for as I have already said, their action was not for fundamental right enforcement let alone brought pursuant to Chapter IV of the 1999 Constitution or the Rules aforementioned. It is just a simple one for damages for the torts of battery, assault and trespass which was caught by Section 2(a) of the Public Officers Protection Act. I once again adopt the statement of the law by the apex Court (Eso, J.S.C.) in Funmilayo Ransome-Kuti & Ors v. A.G. of the Federation & Ors (1985) LPELR-2940 at p.36 thus:
In my view under Section 36 of the 1963 Constitution the subject was at liberty to approach the Court for enforcement of his right or generally at liberty to seek redress in any manner in which the subject may deem to be convenient in any given circumstance. Though he could do this by way of the prerogative actions, by originating summons or declaratory relief, he must seek that redress before the Court be called upon to apply the provision of the Constitution to his case. I do share the view of Ademola, J.C.A. that the claim of the plaintiffs was in tort simpliciter and the only question that could be posed by the appellant is whether that claim in tort with reference to fundamental right in paragraph 14 of the statement of claim would be sufficient to be called upon to start enquiry as to the violation of that right. On this topic I am definitely inclined to the view held by Nnaemeka-Agu, J.C.A. that:
For a plaintiff who comes to Court in reliance upon Chapter III of the 1963 Constitution to succeed he must show that one or more of the rights guaranteed by the section had been infringed.
I believe to seek redress under Section 32(1) of the Constitution, the plaintiff must be known by whatever application he employs in the High Court to be seeking that redress. Redress under Subsection (1) of Section 32 [now Section 46 of 1999 Constitution] has been spelt out in Subsection (2) to mean enforcement or seeking the enforcement of the guaranteed right.
The right guaranteed by the provision is not, in my respectful view, a mere right; it is a special one the remedy for which is outside the purview of an ordinary action which is brought mainly to seek damages for a delict. And when he is out just to seek damages for a tort, allegedly committed by another, the ordinary common law, which it would appear, the plaintiffs in this case have brought (and not the special Law) is the answer. While the special Law is meant to seek redress which indeed may even include compensation for the damage done, the plaintiff must be seeking that redress and not merely calling in aid constitutional provisions in his action for damages in tort. It is in this context and to that extent that I understand and regard as correct Ademola, J.C.A., statement that:
The question here as I see it is a matter of form of action.
When the Court of Appeal held that monetary compensation could be claimed in a claim for violation of fundamental right, I think their Lordships are right. But then it is incumbent on a plaintiff to be clear as to what he seeks, the manner of approach notwithstanding. His opponent must know what the claim against him is and not to be left to guess. That is the essence of pleadings. That is also the essence of joining issues.” (Emphasis mine)
And regarding a similar strategy adopted by counsel for Ransome-Kuti when confronted with the real purport of their case, His lordship retorted thus:
I take it that all learned counsel is trying to do is to change gear, for as I have pointed out earlier, learned counsel, Mr. Braithwaite himself was in no doubt that his action was tort and nothing else.
Change gear, I agree with the learned trial judge and Mr. Mbah for respondents, is what Mr. Usman, S.A.N., for appellants also tried to do in this case with his submission that appellants case was for enforcement of fundamental right and not a mere civil claim for damages for tort. That strategy failed in Ransome-Kuti’s case. It cannot be different here.
I now return to issue 2 where appellants queried the lower Courts decision to entertain respondents preliminary objection when it was not brought within 21 days in compliance with Order 29 Rule 1 and 4 of the Rules of the Federal High Court 2009 requiring that a defendant wishing to object to the jurisdiction of the Court shall do so within 21 days of service of the originating process.
I deem it necessary to first make the point that the fact that learned silk on behalf of appellants raised this argument means that he concedes that respondents objection that appellants action is caught by the Public officers Protection Act is one that challenges the jurisdiction of the Court.
And moving forward, I think the answer to appellants issue 4 lies first in the provisions of Section 2(a) of the Public officers Protection Act itself stating that:
2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect
(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in the case of continuance of damage or injury within three months next after the ceasing thereof. (Italics mine.)
The key words here are The action, prosecution, or proceeding shall not lie or be instituted. Those words indicate that any such action or proceeding not commenced within three months is already dead and shall neither lie nor be prosecuted. That undoubtedly means that the jurisdiction of the Court to entertain it is also affected and taken away. The apex Court (Okoro, J.S.C., in lead judgment with His Learned brothers all concurring without reservation) dealing with this provision in Ibrahim v. Lawal & 5 Ors (2015) ALL FWLR (PT 799) 990; (2015) LPELR-24736 (SC) explained its purport thus at p. 38 , 47 (LPELR):
The effect of the Public Officers Protection Act like any other statute of limitation is to deprive the Court of jurisdiction to entertain an action filed outside the time prescribed in the statute.
…
Let me emphasize the fact that a mandatory statutory provision cannot be waived. The word shall as used in Section 2(a) of the Public Officers Protection Act denotes mandatoriness and leaves no room for discretion.
Having debunked all the roadblocks set up by the 1st to 4th respondents against the applicability of the Public Officers Protection Act to this proceeding, it remains for me to state clearly that the limitation law was lawfully and properly raised before this Court by the appellant. The sum total of all I have endeavored to say above is that the suit of 1st – 4th respondents before the trial High Court was statute barred and had robbed the Court of jurisdiction to entertain the matter. In the same vein the lower Court had no jurisdiction to hear and determine an appeal arising from a judgment generated from the High Court which had no jurisdiction over same. Accordingly, both the judgment of the High Court of Kogi State delivered on 3rd April 2006 and that of the Court of Appeal delivered on 12th January, 2006 are hereby set aside. The appeal is hereby allowed. Consequently, the suit of the 1st to 4th respondents at the trial High Court of Kogi State is hereby struck out for want of jurisdiction.
At any rate, I also have no difficulty in agreeing with the lower Court that time cannot stifle an objection to jurisdiction of the Court as any proceeding conducted without it is a nullity. That is just like it is also trite that neither the Court nor its rules which are only made for orderly conduct of proceedings is capable of conferring jurisdiction on a Court where it is lacking: Clement v. Iwuanyanwu (1989) 3 NWLR (PT 107) 39 @ 50 (S.C.); Ogunremi v. Dada (1962) 1 ALL N.L.R. 663; Alawiye v. Ogunsanya (2013) 5 NWLR (PT 1348) 570 @ 617-618 (S.C.). It is equally settled that even mandatory Rules of Court are not as sacrosanct as mandatory statutory provisions and Courts of justice are more inclined to regard as directory or permissive any provision in Rules of Court which appear mandatory, if among others, the ends of justice so demand: see Katto v. C.B.N. (1991) LPELR- 1678 (S.C.) p.26.
Jurisdiction of Court, it is also settled, is not gained by default: see Aladegbemi v. Fasanmade (1988) 1 NSCC 1087 @ p.1112. Section 2(a) of the Public officers Protection Act having long taken away appellants right of action even before they filed it, leaving them with just a bare and impotent cause of action (Ibrahim v. Lawal & 5 Ors (2015) ALL FWLR (PT 799) 990; Egbe v. Adefarasin (No 2) (1987) 1 NWLR (PT 47) 1), the issue of the Rules of the lower Court somehow managing to keep that same dead action alive and investing jurisdiction in the Court to hear it just does not arise. You cannot place something on nothing and expect it to stand. The contrary only happens in the make-believe world of magic and animations. This issue is accordingly resolved against appellant.
As for issue 4 where appellants argued that their action was for enforcement of fundamental right under Chapter IV of the Constitution and so cannot be barred by a limitation statute like the Public Officers Protection Act going by the provisions of Order 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 earlier reproduced, it has been shown here that their complaints in the suit and even the entire action as framed was not for enforcement of fundamental right but just a simple civil one for torts. To that extent the issue of Order 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 applying to save it from Section 2(a) of the Public Officers Protection Act also does not arise. This issue is also resolved against appellants.
And coming to their final argument that the lower Court on its own wrongly raised and decided application of Section 251(1) of the Constitution and declined jurisdiction on that ground even without hearing parties, while it is the law that it is ordinarily wrong and may in fact amount to denial of fair hearing for a Court to raise an issue suo motu and decide it without hearing parties on it, it has been also stated without equivocation by the apex Court that that rule has some exceptions, one of which is that the need to hear parties when the Court raises an issue by itself would not arise if the issue relates to the Courts own jurisdiction as it transpired in the instant case: see Gbagbarigha v. Toruemi (2013) ALL FWLR (PT 670) 1236 @ 1248 (S.C.), (2013) LPELR-15535 (S.C.) p.20 and Omokuwajo v. Federal Republic of Nigeria (2013) LPELR- 20184 (S.C.) p. 36 -37. See also Katto v. C.B.N. (1991) LPELR-1678 (SC) @ p.31; Moses v. State (2006) ALL FWLR (PT 322) 1437@ 1478 (S.C.), (2006) LPELR-1915 (S.C.). In any case, it is settled, too, that the Courts failure to hear parties on a point before decision per se, especially when it concerns the Courts jurisdiction, does not result in reversal of that decision on appeal; the party complaining must go further to show that he has suffered miscarriage of justice on account of that: see Gbagbarigha v. Toruemi (supra); Katto v. C.B.N. (supra); Usman v. Ogembe (2012) ALL FWLR (PT 613) 1844 @ 1858 (S.C.); Moses v. State (2006) ALL FWLR (PT 322) 1437@ 1478 (S.C.); Omoniyi v. Alabi (2015) ALL FWLR (PT 774) 181 @ 195 (S.C.). Effiom & Anor v. C.R.S.I.E.C. (2010) 14 NWLR (PT 1213) 603 @ 633-634; LPELR-1027 (SC).
Appellants here never even attempted to show that they suffered any miscarriage of justice on account of the lower Courts decision. As Mr. Mbah for respondents rightly pointed out, appellants case having been clearly barred by the Public Officers Protection Act, it is inconsequential whether the lower Court also held, rightly or wrongly (undoubtedly correctly in reality), that it also lacked subject matter jurisdiction over their action by reason of Section 251(1) of the Constitution. To that extent, appellants complaint in issue 5 seems to me rather hollow. In the result, I also resolve it against them.
In the final analysis, I find this appeal bereft of merit. It is rather brought on a misconception of the true position of the law. Accordingly, I hereby dismiss it and affirm the Ruling of M. Shittu Abubakar, J., of the Federal High Court, Bauchi Division.
Parties shall bear their costs.
ADZIRA GANA MSHELIA, J.C.A.: I have had the opportunity of reading in draft the lead Judgment of my learned brother, Ugo, J.C.A. just delivered. I agree that the Appellant’s Appeal lacks merit and ought to be dismissed. My learned brother had adequately considered and resolved the issues raised for determination in this appeal. I have nothing more to add. I too dismiss the appeal and abide by the consequential order contained in the lead Judgment, costs inclusive.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Boloukuromo Moses Ugo, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I abide the conclusion reached therein but I do not agree with the reasoning.
The Appellants commenced the action in the lower Court by a writ of summons and their claims were for:
I. A declaration that the act of the Respondents, their agents and servants of shooting at an official vehicle a black Toyota Prado Jeep with Registration Number 06H 02 BA, the Appellants were travelling in on the 17th of March, 2015 at Tirwun Village along Bauchi Maiduguri Road as well as the threat to further shoot the Appellants amounts to assault, battery, intimidation, threat to life and damage to property.
II. An order directing the Respondents to pay to the Appellants the sum of N200 Million as general damages for assault and battery, threat to life, shock, embarrassment, harassment and damage to property.
III. An order directing the Respondents to pay the Appellants the sum of N20 Million estimated to be the cost of this action, including lawyer’s fee.
IV. Any other relief incidental to or consequential upon the Appellants’ claims.
The writ of summons was accompanied by a statement of claim, written statements of witnesses on oath and a list of documents to be relied upon at the trial. Upon being served with the processes, the Respondents filed a memorandum of conditional appearance and a notice of preliminary objection praying for the striking out of the matter in limine on the ground that the Appellants’ right of action had been extinguished by the operation of Section 2 (a) of the Public Officers Protection Act; that the act complained of was alleged committed on the 18th of March, 2015 while the action was commenced on the 8th of March, 2016. The preliminary objection was supported by an affidavit of twenty-three paragraphs and by a written address of arguments. The Appellants filed a counter affidavit in response as well as a written address and an additional written address of arguments. Counsel to the Respondents filed written reply arguments on points of law and also an additional written address of arguments. The Respondents also filed their statement of defence and which was accompanied by written statements of their witnesses on oath and a list of documents to be relied on at the trial. The Appellants filed a reply to the statement of defence.
The lower Court took arguments on the notice of preliminary objection. Counsel to the parties argued the preliminary objection and placed reliance of their respective affidavits and written addresses. The lower Court delivered a considered Ruling on the preliminary objection and it made copious references to the affidavit of the Respondents and the counter affidavit of the Appellants and to the several submissions made by them. The lower Court found and held in the Ruling that the action of the Appellants was caught by the provisions of Section 2 (a) of the Public Officers Protection Act and was statute barred. The lower Court further found and held that the cause of action of the Appellants, being one predicated on tortuous liability, was not within its subject matter jurisdiction as spelt out in Section 251 (1) of the 1999 Constitution (as amended).
This appeal is against this Ruling. The Appellants filed nine grounds of appeal and distilled five issues for determination in the appeal while the Respondents distilled four issues for determination in the appeal. It is my view that going through the records of appeal, the Ruling of the lower Court and the arguments in the respective briefs of arguments of the parties, there are really two issues for determination in this appeal. These are:
I. Whether the lower Court was correct when it found and held that the action of the Appellants was caught by the provisions of Section 2 (a) of the Public Officers Protection Act and was statute barred.
II. Whether the lower Court properly raised the issue of jurisdiction and was correct when it found and held that it had no subject matter jurisdiction over the cause of action of the Appellants.
On the first issue for determination, Section 2(a) of the Public Officers Protection Act Cap 379, Laws of Federation of Nigeria 1990, upon which the Respondents predicated their preliminary objection, reads:
“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution of any act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority, the following provisions shall have effect –
(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damages or injury within three months next after ceasing thereof.
This is a limitation of action provision and its substance is that an action against any person in respect of any act done in pursuance or in execution of any Act or Law of any public duty of authority of in respect of something done in execution of such Act, Law, duty or authority shall not be commenced after the expiration of three months from the date of the occurrence complained of, and where the occurrence is a continuing one, three months after the ceasing thereof. Now, limitation of action is a statutory defence. The general rule is that where there is a right there is a remedy; that is to say, where there is a cause of action, there is a remedy. However, the legislature has prescribed certain periods of limitation for instituting certain actions.
Where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a claimant who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed Muhammed vs Military Administrator, Plateau State(2001) 16 NWLR (Pt 740) 524, Aremo Il Vs Adekanye (2004) 13 NWLR (Pt 891) 572, Yakubu vs NITEL (2006) 9 NWLR (Pt 985) 367, Williams vs Williams (2008) 10 NWLR (Pt 1095) 364. A legal right to enforce an action is not a perpetual right but a right generally limited by statute. After the date on which the applicable statute provides that legal proceedings cannot be taken, any person having a right of action can no longer competently institute action Egbe Vs Adefarasin (1987) 1 NWLR (Pt 47) 1, Muemue Vs Gaji (2001) 2 NWLR (Pt 697) 290, Adeosun vs Jibesin (2001) 11 NWLR (Pt 724) 290.
So, when an action is said to be statute barred, what it connotes is that the claimant may have an actionable cause of action, but his recourse to judicial remedy is voided; no proceedings could be brought to prosecute the action Yusuf Vs Co-operative Bank Ltd (1994) 7 NWLR (Pt 359) 676, PN Uddoh Trading Co. Ltd vs Abere (1996) 8 NWLR (Pt 467) 479, Industrial Training Fund Vs Nigerian Railway Corporation (2007) 3 N WLR (Pt 1020) 28. In other words, in an action caught by limitation law, it is not that a claimant does not have a right of action or a competent cause of action, but only that the cause of action or the right of action is unenforceable Ogunko Vs Shelle (2004) 6 NWLR (Pt 868) 17, Olagunju Vs Power Holding Company of Nigeria Plc (2011) 10 N WLR (Pt 1254) 113.
The position of the law on meaning and import of Section 2(a) of the Public Officers Protection Act is set and settled. The protection provided by provision is not a free for all protection. Two conditions must coexist before a person can avail himself of the protection and these are (i) the person must be a public officer; and (ii) the act done by the person in respect of which the action was commenced was an act done in pursuance or execution or intended execution of a law or public duty or authority – Central Bank of Nigeria vs Okojie (2004) 10 NWLR (Pt 882) 488, Hassan vs Aliyu (2010) 17 NWR (Pt 1223) 547. Where either of these conditions is missing, the person concerned does not come under the provisions of Section 2 of the Public Officers Protection Act and an action against him is not caught by the three months limitation period.
The law is that, to come under the protection offered by Section 2(a) of the Public Officers Protection Act, the actions of the defendant must not have been actuated by other motives such as spite, malice or personal interest rather than by spirit of law in the execution of the public duty or authority and the defendant must not have acted outside the confines of the law. In Nwankwere v. Adewunmi (1966) 1 All NLR 129 at 133-134 Brett, J.S.C, said:
“The Law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification.”
In Lagos City Council v. Ogunbiyi (1969) 1 All NLR 297, 299 the Supreme Court, per Ademola, C.J.N. said:
“…the Act necessarily will not apply if it is established that the defendant had abused his position for purposes of acting maliciously. In that case he has not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavoring to carry it out. In such a state of facts he has abused his position for the purpose of doing a wrong, and the protection of this Act, of course, never could apply to such a case.
In Offoboche Vs Ogoja Local Government (2001) 16 NWLR (Pt 739) 458, Ayoola, JSC, explained the point further that:
“Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers Protection Law of such protection. The burden is on the plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties or, that he had acted in error of judgment or, in honest excess of his responsibility, will not amount to bad faith or abuse of office. Abuse of office is use of power to achieve ends other than those for which the power was granted, for example, for personal gain, to show undue favour to another or to wreak vengeance on an opponent, to mention a few.”
In Hassan Vs Aliyu supra, Onnoghen, JSC (as he then was) reiterated the position thus at page 591 B-D:
“It is however correct that where a public officer acts outside the scope of his authority and without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection act. It is the duty of plaintiff/appellant to adduce evidence or facts to establish the bad faith, lack of semblance of legal justification etc. The facts to be produced must exist to enable the Court find the absence of semblance of legal justification etc otherwise once it is established that the action was instituted outside the statutory period of three months, the action is time barred and the Court will have no jurisdiction to entertain same.”
The burden is on a claimant to show these extenuating circumstances that take his case outside the confines of Section 2(a) of the Public Officers Protection Act. And in determining whether a claimant has met this burden, the Court is enjoined to look at only the facts contained on the writ of summons and averred in the statement of claim. It is pertinent to note that the issue of limitation of action was raised by the Appellant at the preliminary stage. The law is that in resolving the issue of limitation of action at such a stage, the Court must have regards only to the averments of depositions of a claimant contained in the statement of claim, in an action commenced by a writ of summons, or in the affidavit, in an action commenced by originating summons, and to nothing else Ajayi Vs Military Administrator, Ondo State (1997) 5 NWLR (Pt 504) 237, Woherem vs Emereuwa (2004) 13 NWLR (Pt 890) 398, Kasandubu vs Ultimate Petroleum Ltd (2008) 7 NWLR (Pt 1086) 274, Olofu Vs Itodo (2010) 18 NWLR (Pt 1225) 545 at 573, Peoples Democratic Party Vs Sylva (2012) 13 NWLR (Pt 1316) 85 at 121, Attorney General, Federation Vs Attorney General of Lagos State (2017) 8 NWLR (Pt 1566) 20 at 46 E-G, Federal Mortgage Bank of Nigeria Vs Owodunni (2018) LPELR 44556(CA).
In Amata Vs Omofuma (1997) 2 NWLR (Pt 485) 93 at 109 A-B Nsofor, JCA made the point thus:
“The Statute of Limitation of Actions is a statute limiting the plaintiff’s action. Not the defendant’s “action”, where the defendant is no more than a defendant and has no “action” because only and only because he did not file a counter-claim in the sense I was discussing above. If it is the plaintiff’s action that the statute of limitation is sought to pitch against, then necessarily one has to have resort to and scrutinize and examine the facts, the factual situation the plaintiff is relying on to claim the relief sought for. And if it is not the defendant’s “action” that is sought to pitch against with the plea of limitation of action then, a fortiori, resort ought not be had to the pleadings of, the facts or factual situation of the defendant to ascertain the applicability or not of the statute.”
Therefore, the simple task before the lower Court in the instant case was to look at the averments in the statement of claim of the Appellants to determine whether the alleged acts of the Respondents complained about were not done in bad faith, abuse of office and maliciously and were done in pursuance of the statutory duty of the Respondents and with legal justification. The lower Court fell into grave error when it placed reliance on the affidavit and counter affidavits of the parties and made findings of facts on the basis of the facts in the affidavits in coming to a decision whether of not the action of the Appellants was statute barred. The lower Court allowed itself to be derailed by the Counsel to the parties and it allowed them take control of its proceedings, lead it on a wild goose chase of whether or not the action of the Appellants was a fundamental rights action and whether it should have been brought under the Fundamental Rights Enforcement Procedure Rules or not. These were completely irrelevant issues to the resolution of the preliminary objection of the Respondents.
Counsel to the parties have come before this Court with the same approach that they adopted in the lower Court. They have raised and argued issues that are outside the confines of the preliminary objection raised by the Respondents before the lower Court. This Court cannot, and should not, follow the route taken by the lower Court and it should redirect the proceedings to what should have been done by the lower Court to resolve the question raised by the preliminary objection; this is to examine the case made out by the Appellants on the pleadings before the lower Court to determine whether or not the action was caught by the provisions of Section 2(a) of the Public Officers Protection Act.
The Appellants averred that on the 17th of March, 2005, they were travelling to the Main Campus of the Bauchi State University, Gadau where the first Appellant was to chair a meeting as the Pro-Chancellor and Chairman of the University’s Governing Council when a group of soldiers from the 1 Mechanized Division, Kaduna who were moving very slowly in their vehicles opened fire on them at Tirwun Village along Bauchi-Maiduguri Road. It was their case that the officers of the Respondents fired eleven shots at the black Toyota Prado Jeep with Registration Number 06H 02 BA they were travelling in and damaged the car and that after they stopped the car and alighted there from, the soldiers still came at them with cocked guns threatening further shots and putting them in real scare for their lives. It was their case that at the time of the incident, the first Appellant was attired in his royal wear as the District Head of Yakawada and Magajin Rafin Zazzau, which should have attracted some degree of respect and that, when questioned as to the reason for the shots fired, the officers of the Respondents stated that it was because the car was trying to overtake them and that they were carrying sensitive materials.
The claims of the Appellants on these facts were for assault, battery, intimidation, threat to life and damage to property. The position of case law is that the facts as presented by the Appellants did not take their case outside the protection afforded the Respondents by the Public Officer Protection Act. The protection of sensitive materials put in their care is part of the statutory duty of the Respondents and the fact that there might have been overzealous or overbearing or over-excited in carrying out the duty will not take them out of the protection offered by the Public Officers Protection Act, particularly as the Appellants did not alleged spite, bad faith and/or malice on the part of the Respondents. In Ekeogu Vs Aliri (1991) 3 NWLR (Pt. 179) 258, the plaintiff was injured in the eye by her class teacher in a public school in the course of disciplining her. She went through different hospitals for treatment during which time three months had passed. But, quite unfortunately, she lost the eye. She sued for damages by her next friend (the mother). It was held that the action was statute-barred.
The Supreme Court explained the position thus:
“It is clear, on the facts, that at all material times the appellant was acting in pursuance of his public duty as a teacher exercising disciplinary control over his pupils. The fact that there was or might be some default or negligence on his part in the performance of his duty, should not be the basis for depriving him of the protection under the section. After all what was in issue at that stage of the proceeding was not the liability of the appellant, but whether the action was maintainable or not. It is only after the action has been instituted that the appellant’s conduct can be probed.”
In other words, an action cannot be maintained against a public officer for injury done in the course of carrying out his public duty, if it is brought outside the period of three months, even if there was some misconduct on the part of the public officer Egbe vs Adefarasin (1985) 1 NWLR (Pt 3) 549, Egbe vs Alhaji (1990) 1 NWLR (Pt 128) 546, Egbe vs Yusuf (1992) 6 NWLR (Pt 245) 1, Attorney General, Federation Vs Abacha (2010) LPELR 8997(CA), Nahuche Vs Nahuche (2016) LPELR 41809(CA). In Fasoro vs Milborne (1923) 4 NLR 85, the defendant, a District Officer, was discharging the duties of his office in a building which had been placed at his disposal by the owners of the land on which it stood, and the plaintiff, a minister of the African Church, entered to challenge him and the defendant ordered a policeman to slap the plaintiff, the suit against him which was commenced three months after the incident of assault was held to be statute barred.
Similarly, in Obiefuna Vs Okoye (1961) 1 SCNLR 357 the plaintiff was injured while driving his motor bike, which was knocked down by the defendant who was driving a police truck. The plaintiff commenced the proceedings after three months of the accident, because he had been in hospital for treatment all the time. The Court held than his claim must fail as one that is statute-barred, because the defendant was driving the truck in the course of performing a public duty at the time of the accident.
It has also been held that even where the actions of a public officer, viewed independently, show prima facie that the public officer was acting in bad faith and the plaintiff fails to make the mala fide of the public officer an issue in his pleadings, the public officer will be entitled to the protection offered by Section 2(a) of the Public Officers Act –Olaosebikan vs Williams (1996) 5 NWLR (Pt 449) 437.
Where, however, there is a continuance of the injury or damage, the Public Officers Protection Act would not apply Independent National Electoral Commission Vs Ogbadibo Local Government (2016) 3 NWLR (Pt 1498) 167. It must however be understood that continuance of the injury of damage means the continuance of the legal injury and not just the continuance of the injurious effect of a legal injury Obiefuna Vs Okoye supra, Olaosebikan Vs Williams supra, Nwafor Vs Nigeria Customs Service (2018) LPELR 45034(CA). Similarly, a public officer who commits a constitutional breach in the course of performing his duties is not entitled to protection under the Public Officers Protection Act Federal Republic of Nigeria vs Ifegwu (2003) 15 NWLR (Pt 843) 113 and Tajudeen vs Federal Inland Revenue Service (2018) LPELR 43856(CA). In Muhammed Vs Ahmadu Bello University, Zaria (2014) 7 NWLR (Pt 1407) 500, this Court, at pages 539-540 F-H, put the position thus:
“The provision of Section 2(a) of the Public Officers Protection Act is subject to the provisions of the 1999 Constitution. A public officer who has contravened the provisions of the Constitution, particularly as they relate to the fundamental rights enshrined therein, in the execution of his public duty cannot claim protection under the Act. The public officer can only seek for such protection when he is not guilty of flagrant abuse of the Fundamental Human Rights in the execution of his public duties.”
Looking at the facts averred by the Appellants in their statement of claim, it was not their case that the injury allegedly inflicted on them by the Respondents was continuous and/or that the Respondents contravened the provisions of the Constitution in the execution of the public duty. The Appellants made no reference to any particular provision of the Constitution breached by the Respondents. The lower Court was thus correct when it held that the action of the Appellants was caught by the provisions of the Public Officers Protection Act and was thus statute barred. The first issue for determination is thus resolved in favour of the Respondents.
Before going to second issue for determination, I consider it pertinent to comment on a point which was agitated by the parties in this appeal, particularly by the Counsel to the Respondents. It is whether a party can raise the issue of statute of limitation at any time without regards to the Rules of Court. Counsel to the Respondents took the position that statute of limitation was an issue of jurisdiction that could be raised at any time and at any stage of the litigation, even at the Supreme Court, for the first time. I do not agree that this position represents the correct state of the law. The Courts, particularly the Supreme Court and this Court, have stated and restated over the years that limitation law or statute bar is a special defence and if available to the defendant at the time of the action, it must be specifically pleaded before it can be raised in the matter, either by way of a motion or otherwise. In Ketu Vs Onikoro (1984) 10 SC 265, Obaseki, JSC stated the law thus:
“It is a cardinal rule of pleading that such specific matters as the limitation law must be expressly set out in the statement of defence. Once it is not pleaded; the defendant cannot be granted the protection of that law. In this case, it is not pleaded and even if it is applicable, the Court cannot grant the defendants the benefit of the limitation law contrary to the rules of pleading and the principle of avoidance of surprise.”
In Kano vs Oyelakin (1993) 3 NWLR (Pt 282) 399 at page 409, Ogundare, JSC put it thus:
“I must say, with all respect to learned counsel for the defendant/appellant, that all arguments by him based on the provisions of the limitation law of Oyo State do not amount to much as it was not part of the defence raised in the amended statement of defence that the plaintiff’s action, or any part of it was barred under the limitation law. That defence being a special defence and available to the defendant at the time of the action must have been specifically pleaded and not having been pleaded by him, he could not now raise it even in this Court …. “
Also, in Olagunju Vs Power Holding Company of Nigeria Plc (2011) 10 NWLR (Pt 1254) 113, the Supreme Court said:
“A defendant or party intending to raise or rely on defence of limitation law or statute of limitation must first of all specifically plead same otherwise the defence, being a special one, will not avail him. The rationale for this principle is to be found within the rules of pleadings, particular intent of which is to give notice to the other party so as not to take him by surprise.”
Again, in Sulgrave Holdings Inc Vs Federal Government of Nigeria (2012) 17 NWLR (Pt 1329) 309, the Supreme Court reiterated the point thus:
“In some jurisdictions of Nigeria, the limitation laws are required, as per the High Court (Civil Procedure) Rules, to be pleaded by the defence in order not to take the opposite side by surprise, although it may also arise from the facts as pleaded without specifically alleging the relevant limitation law. In that case, pleadings have to be filed and exchanged by the parties before an objection to the action being statute barred can properly be taken. This invariably is the case where demurrer has been abolished. And the rules in that case require the defendant to set down for hearing of the matter by an application raising specifically the question of limitation of action and the lack of the Court’s power to entertain the matter.”
Similar statements have been made by Supreme Court and Court of Appeal in several other cases see for example Famuyiwa Vs Folawiyo (1972) NSCC 307, Shitta Bey Vs Federal Public Service Commission (1981) 1 SC 40, Egbe Vs Adefarasin (1987) 1 NWLR (Pt 47) 1, Savannah Bank of Nigeria Ltd vs Pan Atlantic Shipping & Transport Agencies Ltd (1987) 1 NWLR (Pt 49) 212, Itansehinwa Vs Ikueduyi (1991) 3 NWLR (Pt 179) 278, Odubeko vs Fowler (1993) 7 NWLR (Pt 308) 637, Iheanacho vs Ejiogu (1995) 4 NWLR (Pt 389) 324, Allen vs Odubeko (1997) 5 NWLR (Pt 506) 638, Adekoya Vs Federal Housing Authority (2000) 4 NWLR (Pt 652) 215, Tsume vs Peverega (2001) 2 NWLR (Pt 698) 556, Agricultural Development Corporation, Obitti, Imo State Vs Okedi (2004) 11 NWLR (Pt 884) 369, Sanni Vs Okene Local Government Traditional Council (2005) 14 NWLR (Pt 944) 60, Oyebanji vs Lawanson (2004) 13 NWLR (Pt 889) 62, Omotosho vs Bank of the North Ltd (2006) 9 NWLR (Pt 986) 573, Ebenogwu Vs Onyemaobim (2008) 7 NWLR (Pt 1074) 396, The Shell Petroleum Development Company of Nigeria Ltd Vs Amadi(2010) 13 NWLR (Pt 1210) 82, Hassan vs Aliyu (2010) 17 NWLR (Pt 1223) 547, Amadi vs Amadi (2011) 15 NWLR (Pt 1271) 437, Moyosore vs Governor, Kwara State (2012) 5 NWLR (Pt 1293) 242.
The statement of the Counsel to the Respondents that since the issue of limitation of action touches on the jurisdiction of Court it could be raised at anytime, and even on appeal for the first time, shows an obvious confusion of the issue of limitation with the issue of substantive jurisdiction of a Court to hear a matter. It is an issue of substantive jurisdiction which can be raised at anytime and even in the Supreme Court for the first time. It must be understood that issues of limitation law cannot be equated to matters affecting the substantive jurisdiction of a Court to hear a matter. Jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority – Enyadike Vs Omehia (2010) 11 NWLR (Pt 1204) 92 and Abacha vs Federal Republic of Nigeria (2014) 6 NWLR (Pt 1402) 43. Thus, matters of jurisdiction deal with and affect the competence of a Court, as a Court, to hear a matter.
Limitation law, on the other hand, affects a cause of action of the validity of a cause of action instituted outside the limitation period. Thus, though a matter caught by the limitation law cannot be adjudicated upon by a Court, limitation law has nothing to do with the jurisdiction or competence of a Court to decide a matter Atolagbe Vs Awuni (1997) 9 NWLR (Pt 522) 536 at 591D, First Bank of Nigeria Plc vs Associated Motors Co. Ltd (1998) 10 NWLR (Pt 570) 441 at 479 B-D. This point was succinctly made by Nsofor, JCA in Amata Vs Omofuma (1997) 2 N WLR (Pt 485) 93 at 113 D-E thus:
“If a plaintiffs action is statute barred, then he never has a cause of action. Why? Because if he cannot maintain an action in a Court of law because the action is not maintainable, then by parity of reasoning there was no cause of action. It goes, let me hasten to say, to the maintenance of an action and by no means to the competence or jurisdiction of a Court strict sensu.”
Again, in Ajayi vs Military Administrator , Ondo State (1997) 5 NWLR (Pt 504) 237 at page 276 C-D, Nsofor, JCA put the point thus:
“…different considerations or principles apply when considering whether an action is statute barred and when a trial Court’s jurisdiction has been ousted by statute. On the one hand, where a limitation law applies, it goes to the maintenance of the action by the plaintiff. It does not go to the competence of the Court. On the other hand, where a statute ousts the jurisdiction of the Court, it is the Court which is affected. It lacks the legal competence in itself. The two situations have different significance, even though their common denominator is eventually the same that is, the action is not determined to a finality between the parties.”
A limitation law is procedural, setting out clearly a time frame within which an action must be filed and as such limitation laws are matters of practice and procedure and they are not aspects of the substantive law Chigbu Vs Tonimas (Nig) Ltd (2006) 9 NWLR (Pt 984) 189, Obayiuwana Vs Minister of Federal Capital Territory (2009) LPELR 8202. Limitation law thus concerns the procedural jurisdiction of a trial Court and not its substantive jurisdiction. It is trite law that matters of procedural jurisdiction must be raised by a party seeking to rely on it in his pleadings and that where it is not so raised, the party will be deemed to have waived it. This is predicated on the principle that where pleadings are filed, a party relying on an issue of procedural jurisdiction must plead it and if it is not so pleaded, the party would by simple rules of pleadings be taken to have waived whatever rights he possesses on the point Katsina Local Government Authority Vs Makudawa (1971) 7 NSCC 119, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, F & F Farms (Nig) Ltd vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Ediru Vs Federal Road Safety Commission (2016) 4 NWLR (Pt 1502) 209, Akahall & Sons Limited Vs Nigeria Deposit Insurance Corporation (2017) LPELR 41984(SC).
In other words, limitation of action is a defence that can be waived by a party and to that extent it cannot be said that an action commenced outside the limitation period is incompetent for lack of jurisdiction of the Court Araka vs Ejeagwu (2000) 15 NWLR (Pt 692) 684, Omotosho vs Bank of the North Ltd (2006) 9 NWLR (Pt 986) 573, Nwaonu vs Osuchukwu (2007) All FWLR (Pt 313) 329, Chukwu vs Amadi (2009) 3 NWLR (Pt 1127) 56. Thus, it is settled law that an issue of limitation law cannot be raised for the first time either in the Court of Appeal or in the Supreme Court; it must have been pleaded in the High Court and pronounced upon – Agwazim vs Nwadiaju (1958) NNLR 25, Kano vs Oyelakin (1993) 3 NWLR (Pt 282) 399, Allen vs Odubeko (1997) 5 NWLR (Pt 506) 638, Tsume vs Peverega (2001) 2 NWLR (Pt 698) 556, Agricultural Development Corporation, Obitti, Imo State vs Okedi (2004) 11 NWLR (Pt 884) 369, Omotosho vs Bank of the North Ltd (2006) 9 NWLR (Pt 986) 573, Nigerian Institute of International Affairs Vs Ayanfalu (2007) 2 NWLR (Pt 1018) 246.
The Respondents filed a statement of defence in this matter wherein they pleaded the issue of limitation of action as a defence before the lower Court entertained arguments on the motion to strike out the suit for being statute barred. The issue was properly raised before the lower Court.
This takes us to the second issue for determination whether the lower Court properly raised the issue of jurisdiction and was correct when it found and held that it had no subject matter jurisdiction over the cause of action of the Appellants.
In the Ruling appealed against, the lower Court raised suo motu the issue of its jurisdiction to entertain the claims of the Appellants and it resolved same without calling on the parties to address on it and it resolved that it lacked the requisite jurisdiction to entertain the subject matter of the claim. Counsel to the Appellants complained that it was wrong for the lower Court to have so raised the issue suo motu and to have thereafter proceeded to resolve same without giving the parties an opportunity to address on it.
The law on a Court raising an issue suo motu is settled. It is trite that a Court being a Court of facts and law is entitled to raise any issue germane to the resolution of the dispute submitted by the parties for adjudication suo motu in the interest of justice – Sodipo vs Lemninkainen OY (1986) 1 NWLR (Pt 15) 220, Ijebu Ode Local Government Vs Adedeji Balogun & Co Ltd (1991) 1 NWLR (Pt 166) 136, Africa Continental Bank Plc vs Losada (Nig) Ltd (1995) 7 NWLR (Pt 405) 26. Where a Court, however, raises the issue suo motu, it must give the parties an opportunity to address on it before deciding the issue, particularly the party that may suffer some disadvantage or disability by reason of the issue so raised Okebola Vs Molake (1975) 12 SC 61, Kuti vs Balogun (1978) 1 SC 53, Graham vs Esumai (1984) 11 SC 123, Bamgboye vs Olarewaju(1991) 4 NWLR (Pt 184) 132, Union Bank of Nigeria Plc Vs Awmar Properties Ltd (2018) LPELR 44376(SC).
This is because decisions of a Court of law must not be founded on any ground in respect of which it has neither received arguments from or on behalf of the parties before it nor even raised by or for the parties or either of them Animashawun Vs Osuma (1972) 4 SC, 200, Shitta-Bey Vs Federal Public Service Commission (1981) 1 SC 40, Saude vs Abdullahi (1989) 4 NWLR (Pt 116) 387, Kraus Thompson Organization Ltd Vs University of Calabar (2004) 9 NWLR (Pt 879) 631, Total Engineering Services Team Inc Vs Chevron Nigeria Ltd (2017) 11 NWLR (Pt 1576) 187. In Akere vs Governor, Oyo State (2012) 12 NWLR (Pt 1314) 240, the Supreme Court stated that ‘the Court’s role in adjudicating is to decide on matters as presented before it in the pleadings and oral evidence and so when an issue is not placed before a Court of law, it has no business whatsoever to deal with it.’
The Courts, however, recognize an exception to this rule, and it is in respect of an issue of subject matter jurisdiction of the Court. It is settled that an issue touching on the jurisdiction of the Court can be raised suo motu and resolved by the Court without calling the parties to address on it Tiza Vs Begha (2005) 15 NWLR (Pt 949) 616, Moses vs State (2006) 11 NWLR (Pt 992) 458, Effiom vs Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt 1213) 106 at 133-134, Gbagbarigha Vs Toruemi (2012) LPELR-15535(SC), Omokuwajo Vs Federal Republic of Nigeria (2013) 9 NWLR 1359) 300 at 332, Omoniyi vs Alabi (2015) 6 NWLR (Pt 1456) 572 at 592-593. An appellate Court with only interfere with such an action of a lower Court where an appellant show that the decision of the lower Court on the issue of jurisdiction was wrong and that it suffered a miscarriage of justice thereby.
The Appellants in this appeal did not address the issue of whether or not the decision of the lower Court on its subject matter jurisdiction was erroneous and neither did they allege the miscarriage of justice they suffered thereby. The lower Court found in the Ruling that the claims of the Appellants were based on tort and that the Federal High Court has no jurisdiction to entertain actions predicated on tortuous liability. I agree entirely with the decision of the lower Court. A look at the claims of the Appellants in their writ of summons and the facts averred in their statement of claim shows that their case was predicated on tort. It is settled law that the Federal High Court has no jurisdiction to adjudicate on cases of that nature, irrespective of the parties to the action Five Star Industry Ltd Vs Bank of Industry Ltd (2017) LPELR 44029(CA). This position was reiterated by the Supreme Court recently in the case of Rahman Brothers Ltd Vs Nigeria Ports Authority (2019) LPELR 46415(SC). The lower Court cannot be faulted for raising the issue of jurisdiction suo motu and its finding that it lacked the requisite jurisdiction to entertain the claims of the Appellants was spot-on. The second issue for determination is resolved in favour of the Respondents.
It is for these reasons that I find no merit in the appeal. I hereby dismiss the appeal and affirm the decision contained in the Ruling of the Federal High Court sitting in Bauchi in Suit No FHC/BAU/CS/08/2016 delivered on the 8th of Mach, 2017 by Honorable Justice M. S. Abubakar. I abide the consequential order on costs in the lead judgment.
Appearances:
Yunus Ustaz Usman, S.A.N. with him A.S. Idris, Esq., and J.Z. Maleeks, Esq. For Appellant(s)
Chinedu Mbah, Esq. For Respondent(s)
