REAGAN RENNAISSANCE LTD v. A-G FEDERATION (2020)

REAGAN RENNAISSANCE LTD v. A-G FEDERATION

(2020)LCN/15363(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, September 15, 2020

CA/L/828/2016

RATIO

APPEAL: ESSENCE OF AN APPEAL

It is an elementary principle of procedure settled beyond argument that an appeal is not a retrial of the action nor is it a license for a party to change the course or nature of the dispute from that which was presented before the trial Court. Indeed, it is rudimentary principle of law that a party is bound by his pleadings and is not allowed to put up a case on appeal different from the one presented and pronounced upon by the trial Court. An appeal is not a fresh proceeding for a party to amend whatever was wrong with his case at the trial Court. Once an issue is not raised, argued and pronounced upon at the trial stage, it cannot be raised in appeal unless the leave of Court is sought and obtained to raise it as a fresh issue. See Ecobank Vs. Honeywell Flour Mills Plc (2018) LPELR-45124 (SC), Fidelity Bank Vs. The M.T. Tabora (2018) LPELR- 44504 (SC), Nwosu Vs. PDP & Ors. (2018) LPELR-44386 (SC), Uzokwe Vs. Uzokwe (2016) LPELR-40945 (CA) and Nyako Vs. Adamawa State House of Assembly (2016) LPELR-41822 (SC). PER BALKISU BELLO ALIYU, J.C.A.

LIMITATION LAW: THE INTENT AND PURPOSE OF LIMITATION LAW

The public officer’s protection Act is a statute of limitation, and our case law is replete with uncountable decisions regarding the purpose of the limitation law such as the provisions of the Section 2(a) reproduced supra. The intent and purpose of limitation law is to protect public officers from legal proceeding in respect of action or omission done in the course of the execution of their public duty. The protection provided by the said section by its wordings is for the “public officers”, but this has been interpreted and expanded to include public offices, bodies or departments so long as they are sued for acts done in the execution of their public duty or authority. See Ibrahim Vs. Judicial Service Commission Kaduna State (1998) 14 NWLR (pt. 584) 1 or (1998) LPELR-1408 (SC). The protection under the provisions comes into effect only after the expiration of three months from the date the cause of action accrues. In other words, the public officer or public office is only protected from any suit after the expiration of three months from the date the cause that gave rise to the complaint arose. See Egbe Vs. Adefarisin (1987) LPELR-1032 (SC), Sulgrave Holdings Incorporated & Ors. Vs. FGN & Ors. (2012) 17 NWLR (pt. 1329) 309, (SC), Wara & Ors. Vs. Kebbi State Urban Devt. Authority & Anor. (2018) LPELR-45174 (CA), Egbe Vs. Alhaji (1990) 1 NWLR (pt. 128) 546 (SC), Fajimolu Vs. University of Ilorin (2007) ALL FWLR (pt. 350) 1351 (CA), Ibrahim Vs. Lawal (2015) LPELR-24736 (SC). PER BALKISU BELLO ALIYU, J.C.A.

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

REAGAN RENNAISSANCE LTD APPELANT(S)

And

ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, Lagos Judicial Division (trial Court) delivered on the 1st December 2015 by Saliu Saidu, J. in respect of suit NO: FHC/L/CS/898/2014. The Appellant was the plaintiff and it commenced the suit via a writ of summons accompanied with a statement of claim by which it claimed declaratory reliefs against the Respondent who was the defendant before the trial Court.

The facts of the case as stated in the Appellant’s statement of claim are that the Appellant is a registered company in Nigeria and engaged in the business of manufacturing and sale of cement. The Federal Government of Nigeria through its Ministry of Commerce and Industry, represented by the Respondent in this case issued the Appellant with an import licence dated 11th June 2008 to import 500, 000MT of cement in bulk or packaged in jumbo bags of 50kg. The licence had a lifespan of six months from that 11th June 2008 and the Appellant claimed that the license was tied to certain conditions one of which was the acceptance by the Appellant of the guidelines and conditions of specification to be issued by the Ministry of Commerce and Industry and other regulatory agencies regarding cement importation. However the guidelines were only issued by the said Ministry on the 2nd January 2009, few days after the expiration of the lifespan of the licence issued to the Appellant, and the Appellant claimed that the said guidelines were made available to it on the 4th July 2009, a period of one year after the Respondent issued it with the licence and, seven months after the expiration of the license’s lifespan. The Appellant asserted that by this conduct of the Federal Government of Nigeria (of issuing guidelines after the expiration of the lifespan of the license), represented by the Respondent herein, made it to believe that time was never of the essence in the execution of the licence to import cement.

Upon becoming aware of the guidelines, the Appellant claimed that it proceeded to follow the conditions contained in the import licence and incurred hefty financial obligations from its bankers and its suppliers in order to execute the license. Its partners in Malta supplied it with 100, 349MT of cement as the first consignment out of the 300, 000Mt consignment they contracted to supply. But upon reaching Nigeria, the Appellant asserted that the agents of the Federal Government “callously and maliciously” refused to allow it clear the cement and refused to allow the ships carrying the goods the right to discharge in the Nigerian Ports. After much pleading, the officers allowed the Appellant to clear only 20, 349MT out of the 100, 349MT of the cement leaving the balance of 80, 000Mt not cleared.

The Appellant asserted that it discovered the reason for the action was because the Federal Government issued a circular dated 8th September 2009 to the Nigeria Custom officers directing them to stop with immediate effect all clearance of imported bagged cement based upon the pretext that the concession granted by the President of Nigeria for the importation of bagged cement had elapsed by December 2008. The Appellant’s plea through the Federal Ministry of Commerce to be allowed to discharge the cement already imported through the import licence issued to it was ignored.

The Appellant’s asserted that the action of the Federal Government was based on a petition written by one of its (Appellant’s) competitors namely, Dangote Group, dated 31st August 2009, which the President directed that a committee be set up to investigate. The set up committee submitted its report to the President and made recommendations of conditions for the importation of cement termed “new cement policy of 2009”, which Appellant claimed it had already fulfilled. The committee also recommended the end of the year 2013 to be the deadline for the completion of the process of stoppage of the importation of cement, but to the shock of the Appellant, the Federal Government refused to implement the committee’s recommendation across board. Instead, it (FGN) chose a selective approach by which it issued new licenses to a few, excluding the Appellant, and the Federal Government still preventing it from utilizing the import licence already granted to it in 2008. The Appellant further claimed that the Federal Government’s action left it with huge local and international debt obligations and breaches of contracts. That the action of the Federal Government was malicious and discriminatory, motivated by bias against the Appellant, which resulted in its incurring heavy financial losses for which it sought for damages against the Federal Government represented by the Respondent in the suit. Upon these facts, the Appellant prayed the trial Court for the following orders:
A. A DECLARATION that having satisfied the condition stipulated in the import license dated 11th June 2008 and the guidelines with respect thereto dated January 2nd, 2009 which two documents were issued by the Federal Government of Nigeria to the Plaintiff, the defendant (Federal Government of Nigeria) cannot stop the Plaintiff from importing the 500, 000 Metric Tons of bulk cement as stipulated in the aforesaid import license or any way howsoever cancel the import license or ban the plaintiff from importing the said amount of bulk cement.
B. A DECLARATOIN that the Defendant is not entitled to act outside the guidelines dated 2nd January 2009 and the recommendations contained in the Report dated September 18, 2009 being the Report of the Presidential Committee on the Review of the Cement Industry in Nigeria and the Defendant is estopped from cancelling the Plaintiff’s import license dated 11th June 2008 and/or disallowing the Plaintiff from continuing that importation of the bulk cement in the quantity stipulated in the import license.
C. A DECLARATION that the Defendant acted arbitrarily and maliciously in not allowing the Plaintiff’s 80, 000MT bagged cement already manufactured to the Plaintiff’s specification and packaged in its brand name to be discharged in the designated port in Nigeria when the four ships carrying them were prevented from berthing in Nigeria and that the act of the Defendant in refusing the berthing of the Plaintiff’s four ship loads of cement containing 80, 000MT of cement is wrongful, null and void and in violation of the Plaintiff’s right.
D. AN ORDER commanding that the Plaintiff be allowed by the Defendant to import 479, 651 metric tons of bagged cement (approximately 480, 000 tons) being the balance of 500, 000 metric tons he licensed the plaintiff to import into the country as pleaded, the Plaintiff having only been allowed to import and clear only 20, 349 metric tons by the Defendant.
E. AN ORDER commanding the Defendant to pay to the Plaintiff the sum of N1, 830, 821, 056) One Billion, Eight Hundred and thirty Million, Eight Hundred and Twenty-one thousand, fifty-six Naira) as more specifically particularized in paragraph 34 of the Statement of claim being special damages suffered by the Plaintiff as a result of the Defendant’s failure to allow the Plaintiff to complete the importation of 500, 000MT of bulk cement in line with the import license dated 11th June 2008.
F. The sum of N3, 030, 162, 513. 61 (Three billion, thirty million, one hundred and sixty-two thousand, five hundred and thirteen Naira, sixty-one kobo) being the loss of profit the plaintiff would have made if it was allowed to import the balance of 479, 651 metric tonnes of bulk cement (approximately 480, 000MT as pleaded) from its licensed 500,000MT for which revolving Letters of Credit and Form M had been opened.
G. The sum of N10, 000, 000, 000 (Ten Billion Naira) only as exemplary damages.
H. Interest at the rate of 21% on all the above stated sums of money from the date of 2008 till the date of judgment and thereafter at the rate of 15% till the full satisfaction of the Judgment debt.

In response to the Appellant’s suit, the Respondent entered conditional appearance but did not file a statement of defence. Rather, he filed a notice of preliminary objection on the 16th April 2015 by which he challenged the competence/jurisdiction of the trial Court to entertain the suit. His ground of objection was that “the suit is statute barred by virtue of the provisions of Section 2(a) of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria 2004 (POPA) and therefore cannot be maintained in law.” The notice of objection was accompanied by an affidavit in support and the Respondent’s counsel’s written address, all contained in pages 274 to 283 of the record of appeal.

The Appellant/plaintiff filed a counter-affidavit to the affidavit in support of the preliminary object accompanied by its counsel’s written address on the 22nd April 2015 also copied in pages 284 to 291 of the record of appeal. The Respondent filed a reply on points of law on the 25th May 2015. The preliminary objection was duly argued before the trial Court on the 6th October 2015 and adjourned for ruling.

The learned trial Judge delivered the Court’s ruling on the 1st December 2015 by which he sustained the preliminary objection of the Respondent and held that the Appellant’s suit is statute barred by virtue of Section 2(a) of the Public Officers Protection Act and he struck it out.

The Appellant was aggrieved with the ruling of the trial Court and it initiated this appeal through its notice of appeal initially filed on the 22nd December 2015. It however amended and filed the extant notice of appeal on the 11th March 2019, deemed properly filed on the 3rd October 2019, in which it relied on five (5) grounds of appeal to pray this Court to allow the appeal, set aside the ruling of the trial Court and to remit the suit to the Chief Judge of the Federal High Court to be tried on the merits by another Judge other than Saidu, J.

The record of appeal was transmitted on the 14th July 2016 and deemed properly transmitted on the 25th June 2020. The Appellant’s brief of argument settled by D. A. Awosike Esq. was filed on the 17th December 2019, but deemed properly filed and served by the order of this Court made on the 25th June 2020. At page five of the 18-paged Appellant’s brief, learned Counsel identified two issues from the five grounds of appeal for the determination of the appeal thus:
a. Whether Section 2(a) of the Public Officers Protection Act as cited is applicable to the subject matter of the suit before the lower Court. (Distilled from 1, 3, 4, and 5 of the amended notice of appeal).
b. Whether having regard to the facts pleaded in the Appellant’s statement of claim, it was desirable for the learned trial Judge to hear the suit on the merit. (Distilled from ground 2 of the amended notice of appeal).

In opposing this appeal, the Respondent filed his brief of argument, settled by Simon Enock Esq. and filed on the 24th January 2020, but deemed properly filed on the 25th June 2020. At page 3 paragraph 3.0 of the said brief, learned counsel distilled two issues for the determination of this appeal reproduced below:
i. Whether or not the Court below was right in its decisions/ruling upholding the Defendant/Respondent’s Preliminary Objection on the ground that the Appellant’s suit was statute barred. (Grounds 1, 3 and 4 of the amended notice of appeal).
ii. Whether or not it would be proper in law for the Court below to decide on, or determine the substantive case without first delivering ruling on the preliminary objection. (Grounds 2 and 5 of the Amended Notice of Appeal).

The Appeal was called for hearing on the 25th June 2020 and the learned counsel on both sides were duly notified of the date but the Respondent’s counsel did not deem it necessary to appear for the hearing. The learned Appellant’s counsel adopted the Appellant’s brief in urging the Court to allow the appeal and to set aside the ruling of the trial Court. The Respondent’s brief of argument was deemed adopted and appeal deemed argued by him in line with Order 19 Rule 9(4) of the Court of Appeal Rules 2016.

It seems to me that the issues formulated by the parties for the determination of this appeal are same, save for phraseology. It means that the parties are in agreement on the issues arising for determination in this appeal and I have no reason to disagree with them. For this reason, I adopt the issues formulated by the Appellant as my guide for the determination of this appeal.

SUBMISSIONS OF COUNSEL
In arguing issue one, learned counsel for the Appellant submitted that it is the nature of the suit before the trial Court that determines whether the provisions of Section 2(a) of the Public Officers Protection Act apply. He referred to the facts averred in the statement of claim of the Appellant and contended that the nature of the Appellant’s case disclosed therein is contractual. He posited that the Respondent is under a contractual obligation to allow the Appellant import 500, 000MT of cement as stipulated in the import license issued to it after applying for it from the Federal Government. He referred to paragraphs 13, and 15 of the statement of claim which he said showed the nature of the suit being contractual.

He also submitted that the learned trial Judge was wrong to apply the provisions of Section 2(a) of the Public Officers Protection Act “blanketly” without taking into consideration the exceptions contained therein. He posited that the application of the provision is not static because this Court and the Supreme Court have consistently held in several decisions that the statute of limitation cannot avail a public officer to evade contractual obligation. He relied on the cases of F.G.N. Vs. Zebra Energy Ltd (2002) 18 NWLR (pt. 798) 162, Nbonu Vs. Nigeria Mining Corp. (2006) 13 NWLR (-t. 998) 659, Amao V. C. S. C. (1992) 7 NWLR (pt. 252) 214 and Musa Vs. N. I. M. R. (2010) 11 NWLR (pt. 271) in support of his submissions.

It was the further contention of the Appellant’s learned counsel that the learned trial Judge wrongly glossed over the claim of malice, bias and bad faith that the Appellant raised in paragraphs 17, 18, 21, 23, 30 and 36 supporting relief 3 of his statement of claim against the Federal Government represented by the Respondent. He argued that malice and bias on the part of public officers constitute exceptions to the application of Section 2(a) of POPA. He referred us to the cases of Unilorin Vs. Adeniran (2007) 6 NWLR (pt. 1031) 498, Okeke Vs. Baba (2000) 3 NWLR (pt. 650) 644 and Ibeto Cement Co. Ltd Vs. A. G. Federation (2008) 1 NWLR (pt. 1069) 470 to support his submissions and in urging the Court to resolve issue one in favour of the Appellant.

The Respondent’s learned counsel in arguing his issue one relied on the case of Ugba Vs. Suswam (2013) 4 NWLR (pt. 1345) 427 where it was held that where the law prescribes a period within which a matter should be initiated or heard or disposed of, legal proceedings cannot be properly or validly instituted or heard after the expiration of the prescribed period. An action instituted after such prescribed period has no legal effect whatsoever, having been extinguished by effluxion of time. He further referred to the ruling of the trial Court at page 305 of the record where the learned trial Judge found that the Appellant was not challenging the fact that its suit is statute barred, but that it relied on malice and bad faith on the part of the Respondent which will disentitle it to the protection of the Public Officers Protection Act.

On the argument of the Appellant’s learned counsel that its case against the Respondent is contractual and that the Respondent acted maliciously against the Appellant both of which constitute exception to the defence of limitation of time, learned Respondent’s counsel submitted that argument of the Appellant was not “the crux of the applicant’s substantive action. The issue has not been the subject matter of the Court’s ruling” which was just on the issue of whether or not the Appellant’s suit is statute barred. He submitted that the authorities cited by the Appellant’s learned counsel “are inconsequential and of no moment with respect to the ruling of the Court below.”

The learned counsel for the Respondent further argued that the Appellant was not vigilant having failed to file its suit within the three months stipulated by Section 2(a) of Act, and equity cannot aid him. He relied on the case of Olufemi Fasesin Vs. Dr. Oyerinde (1997) 11 NWLR (pt. 530) 552 in support. He also argued that the learned trial Judge only considered the affidavits in support and in opposition to the preliminary objection in his ruling, but that the Appellant’s learned counsel did not advance any cogent and convincing argument to show that it suffered miscarriage of justice or that the ruling of the trial Court was perverse, rather he dissipated energy on arguing the substantive case. He concluded his argument on this issue by submitting that having regard to the affidavit evidence before the trial Court, its ruling was not perverse and he urged the Court to resolve issue one in favour of the Respondent.

On issue two, the learned Appellant’s counsel submitted that the learned trial Judge delved into the substance of the suit and decided it at the preliminary stage without affording the Appellant the opportunity to present his case at the trial. That the learned trial Judge should have allowed facts of malice, discrimination and bias to be proven in a trial as such he was therefore wrong to gloss over these pleaded facts. He relied on the case of Ibeto Cement Company Ltd Vs. A. G. Federation (supra) in support and urged the Court to resolve the two issues in favour of the Appellant. He filed lists of additional authoritied on the 29th May 2020 citing the five cases in support of his submissions, namely, Warri Refining and Petrochemical CO. Ltd Vs. GESMEP Nig. Ltd (2020) LPELR-49380 (SC), Alhaji Jibrin Bala Hassan Vs. Dr. Mu’azu Babangida Aliyu (2010) 17 NWLR (pt. 1223) 547, Offobouche Vs. Ogoja L. G. (2001) 16 NWLR (pr. 730) 458 at 485, Mallam Mohammed Alhassan Vs. Ahmadu Bello University Zaria (2014) 7 NWLR (pt. 1401) 500 at 534 (wrong citation) and CIL Risk & Asset Management Ltd Vs. Ekiti State Government & Anor. (2018) LPELR-45865 (CA) set aside by the Supreme Court in its decision reported in (2020) LPELR-49565 (SC)

For the Respondent on issue two, his learned counsel submitted that it would be improper for the trial Court to proceed to determine the suit without deciding the objection of the Appellant which was an issue of jurisdiction. He argued that an issue of jurisdiction once raised, the Court was under a duty to determine it. He argued that the purpose of a preliminary objection is to terminate the proceedings in an action if it succeeds. He relied on the cases of Eresia-Eke Vs. Orikoha (2010) 8 NWLR (pt. 1197) 421 and UBN Plc. Vs. Sogunro (2006) 16 NWLR (pt. 1006) 504 at 521-522 and others in support.

In response to the Appellant’s contention that the learned trial Judge acknowledged in his ruling that the Appellant was relying on malice and bad faith and yet delved in to the substance of the suit at the interlocutory stage, learned Respondent’s counsel submitted that this statement is incorrect, because the learned trial Judge did not go outside the affidavits of the parties, in which they made references to the facts pleaded by the Appellant in its statement of claim and the accompanying documents, and therefore it would be uncharitable to accuse the trial Judge of delving into the substance of the suit. He referred us to paragraph 3 of the Respondent’s affidavit in support of his objection and the response of the Appellant in paragraph 6 of its counter affidavit located in pages 276, and 284 to 285 respectively.

The learned Respondent’s counsel also drew out attention to the fact that the Appellant is not challenging the ratio decidendi of the Court’s ruling which was on jurisdiction, but rather dwelled on the observation of the learned trial Judge. He submitted that an appeal is against the ratio decidende of the judgment and not on the observation of the trial judge. He relied to the case of Ekong Vs. Udo (2002) 16 NWLR (pt. 791) 23 for support.

In response to the Appellant’s learned counsel’s argument that the learned trial Judge ought to have allowed the Appellant prove malice in the trial, the Respondent submitted that the argument of the Appellant misconceived that purport of the preliminary objection, which succeeded and resulted in the termination of the suit before the trial Court. Conclusively, learned counsel urged upon us to resolve issue two against the Appellant.

RESOLUTION
ISSUE ONE
The crux of this issue is the trial Court’s holding that the Appellant’s suit is statute barred in view of the provisions of Section 2(a) of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004. The said section provides that:
“2. Where action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act of 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 a case of continuance of damages or injury, within three months next after the ceasing thereof.”
The public officer’s protection Act is a statute of limitation, and our case law is replete with uncountable decisions regarding the purpose of the limitation law such as the provisions of the Section 2(a) reproduced supra. The intent and purpose of limitation law is to protect public officers from legal proceeding in respect of action or omission done in the course of the execution of their public duty. The protection provided by the said section by its wordings is for the “public officers”, but this has been interpreted and expanded to include public offices, bodies or departments so long as they are sued for acts done in the execution of their public duty or authority. See Ibrahim Vs. Judicial Service Commission Kaduna State (1998) 14 NWLR (pt. 584) 1 or (1998) LPELR-1408 (SC). The protection under the provisions comes into effect only after the expiration of three months from the date the cause of action accrues. In other words, the public officer or public office is only protected from any suit after the expiration of three months from the date the cause that gave rise to the complaint arose. See Egbe Vs. Adefarisin (1987) LPELR-1032 (SC), Sulgrave Holdings Incorporated & Ors. Vs. FGN & Ors. (2012) 17 NWLR (pt. 1329) 309, (SC), Wara & Ors. Vs. Kebbi State Urban Devt. Authority & Anor. (2018) LPELR-45174 (CA), Egbe Vs. Alhaji (1990) 1 NWLR (pt. 128) 546 (SC), Fajimolu Vs. University of Ilorin (2007) ALL FWLR (pt. 350) 1351 (CA), Ibrahim Vs. Lawal (2015) LPELR-24736 (SC).
The consensus of all the authorities on the applicability of limitation law as in Section 2(a) of the Public Officers Protection Act is that there is no compromise on the three months period provided therein within which a suit must be instituted against an public officer or office challenging any act or omission of such officer in the discharge of his public duty or authority. The failure to file a suit within the said three months will take away the right of action and judicial redress leaving the plaintiff with an empty cause of action, which is unenforceable. How then should a Court determine whether the limitation period applies to or whether a suit before it is caught by statute of limitation is answered by Oputa, JSC in Egbe Vs. Adefarasin (supra) at page 33 of the judgment that:
“How does one determine the period of limitation The answer is simple-by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses. If the time on the Writ is beyond the period allowed by the Limitation Law then the action is statute barred.”
In this case, the Appellant filed its writ of summons accompanied with its statement of claim before the trial Court on the 9th June 2014 as shown on the record (pages 1 to 241). In paragraph 3(i), of its statement of claim (page 4 of the record), the Appellant averred that:
“The Federal Government of Nigeria through the Federal Ministry of Commerce and Industry issued the Plaintiff with an import licence dated June, 11th 2008 with a lifespan of six months to import 500, 000 (Five Hundred Thousand) Metric tons of Cement in bulk or packaged in Jumbo bags or 50kg bags. The import licence with Reference No. HMC.I/CCU/GEN/VOL. 1/177 is hereby pleaded. The said import licence were (sic) also made contingent upon the approval of the said ministry and tied to other conditions.”
The main grouse of the Appellant which is the cause of action discernable from his pleadings is the refusal of the Federal Government of Nigeria, through its custom officers to allow his ships of imported bagged cement to berth and offload/discharge the cement he imported via the license issued to import it. He complained that the late issuance of the guidelines for importing the cement meant that time was not of the essence and that even though as at the time his ships of cement arrived in Nigerian Ports “sometimes in 2009” his license has expired, it still has the right to import the cement as per the said license due to the late issuance of the guidelines which it asserted the licence was tied to. It further asserted that it only became aware of the guidelines issued by the Federal Ministry of Commerce and Industry on the 4th July 2009.
The Appellant further stated in paragraphs 7 and 8 of its statement of claim that “sometimes in 2009”, its foreign suppliers MISHC Trading Malta Ltd shipped to the plaintiff 100, 349MT of cement, but that the Respondent’s agents “in a most callous and malicious” manner did not only refuse to allow the plaintiff to clear the goods but also refused to allow the ships carrying the goods the right to discharge in Nigerian Ports. Though it failed to state the exact date the agents of the Respondent refused to allow the ships carrying its imported cement the right of entry, but it is clear that it is sometimes in 2009. It is therefore safe to say that the cause of action in this case is the refusal of the Federal Government of Nigeria to allow Appellant discharge the cement imported pursuant to the license it granted to the Appellant and this refusal occurred in 2009.
Looking further into the statement of claim, in paragraph 10 the Appellant explained that it discovered the reasons of the custom officers’ action was due to a Federal Government circular issued on the 8th September 2009 directing them to stop clearance of imported cement. Again, on these facts we can safely conclude that the ships of the Appellant arrived Nigeria on or after the date the said circular was issued, that is on or after the 8th September 2009 or up to December 2009 at the maximum.

A further examination of the documents frontloaded and pleaded by the Appellant show in particular that the Appellant wrote different letters of protest to the Respondent. Firstly, it wrote a letter of protest dated 12th October 2009 to the Hon. Minister of Finance and prayed that it be allowed to “exhaust its allocated quantity” and that the Minister should come to its aid by mandating the custom officers to allow their loaded vessels to discharge to capacity as contained in the letter dated January 2, 2009. Secondly, the Appellant wrote another letter dated 29th October 2009 to the President of Nigeria, by which it prayed the President to “direct the customs through the Ministry of Finance to allow our stranded vessels discharge since commitments had been made fully and in view of the multiple danger it poses both to the international community, licenses and the Nation at large.” See pages 76 to 78 of the record of appeal. On the 2nd November 2009, the Presidency wrote a letter of acknowledgment to the Appellant informing it that the President had received its letter of protest dated 29/10/2009. On the 16th November 2009, the presidency forwarded the letter of protest of the Appellant to the Minister in the Federal Ministry of Commerce and Industry to “treat as appropriate.” By its letter dated 8th January 2010, the Federal Ministry of Commerce and Industry informed the Appellant that its request made to Mr. President to grant it extension for the utilization of cement import license has not received favourable response. The logical conclusion is that the said letter of Federal Ministry of Commerce, dated 8th January 2010, concluded the cause of action, at most.
It is beyond contest that both the Federal Ministry of Commerce & Industry that issued the license to the Appellant and the custom officers whom the Appellant described as the agents of the Federal Government of Nigeria all of whom are represented by the Respondent herein are public officers within the contemplation of Section 2(a) of the Public Officers Protection Act. The act of issuance of license to the Appellant to import cement is certainly a public duty within the authority of the Ministry to issue.
The learned trial Judge after considering the facts contained in the pleadings of the Appellant and the documents attached thereto, found and concluded that the letter of protest to the Ministry of Finance raised the cause of action in this suit and it was dated 12th October 2009 while the Appellant/plaintiff filed this suit in June 2014, a period that was over the three months period prescribed by the provision of Section 2(a) of the Public Officers Protection Act and therefore this suit is statute barred.

In this appeal, the complaint of the Appellant against the said findings and conclusion of the learned trial Judge is not that the suit was statute-barred; but that the Respondent was not entitled to the protection provided by the said section because firstly, the Appellant pleaded malice, bad faith and bias against the Respondent, and secondly, the facts pleaded revealed that the relationship between the parties was contractual and limitation law does not apply to suits of contract nature.
I will start with the contention that the nature of the relationship and dispute between the Appellant and the Federal Government of Nigeria was contractual. Firstly, I carefully perused the address of the Appellant’s counsel contained in pages 284 to 291 of the record filed in opposition to the preliminary objection of the Respondent. The Appellant in his address before the trial Court never raised this argument that the relationship between it and the Federal Government of Nigeria was contractual in nature. Having not been raised before the trial Court, no finding or pronouncement was made on it by the learned trial Judge.
Secondly, I have given ample consideration to the facts stated in the Appellant’s pleading which I have summarized supra, the facts showed that it was issued a license to import cement to Nigeria. This “lincese” is contained in page 108 of the record of appeal and it is a letter dated 11th June 2008 from the Federal Ministry of Commerce and Industry addressed to the Chairman of the Appellant and signed by the Minister. This letter is entitled “APPROVAL TO IMPORT CEMENT” and it informed the Appellant that Mr. President has provisionally approved for it to import a maximum of 500, 000MT of cement between June 2008 to 31st December 2008. The Federal Government was not the buyer of the cement to be imported. There is no contract entered into between the parties, but the cause of action relates to the said approval, which the Appellant called a “license”.
The Appellant had argued that it pleaded that the contractual relationship between it and the Respondent in paragraphs 13 and 15 of its statement of claim. For clarity, I will reproduce the said facts in order to determine whether indeed the facts therein show the existence of any contract between the Appellant and the Respondent:
“13. For the avoidance of doubt, out of the 500, 000MT allocated and contract with respect thereto entered into by the parties, only 20, 349.349MT was allowed to be discharged by the Defendant (Federal Government of Nigeria) and a total contracted balance of 480, 000MT was disallowed by the said Government.
15. The plaintiff avers that it protested to the Federal Government to allow the product into the country having been licensed to do so and having put in place Form M, letter of credit and Marine Insurance policy. This is in line with the practice in the industry but the said Federal Government (Defendant herein) ignored the Plaintiff.”
The above facts did not disclose any contractual relationship between the parties. A contract does not exist merely because a party said so. The approval of the Federal Government to import cement issued to the Appellant is not a contractual document but just as it states, an approval and nothing more.
I have also examined the reliefs sought by the Appellant reproduced at the beginning of this judgment, it did not seek any relief for breach of contract or plead any facts relating to contractual relationship between it and the Federal Government of Nigeria represented by the Respondent. It is raised for the first time in the Appellant’s brief of argument in this appeal.

The second contention of the Appellant is that having pleaded malice, bad faith and bias against the Respondent, the Respondent cannot rely on the defence of limitation of action provided by the Public Officers Protection Act. Learned counsel submitted that the learned trial Judge did not make a finding as to whether the Respondent acted mala fide or not in the execution of their public duty disallowing the Appellant to import cement which it claimed it had license to do. He relied on the cases of University of Ilorin Vs. Adeniran (supra), Okeke Vs. Baba (supra) and Ibeto Cement Co. Ltd Vs. A. G. Federation (supra) and the lists of additional authorities as the authority in support of this contention.
I read the three cases cited by the learned Appellant’s counsel. In the case of University of Ilorin Vs. Adeniran, the relationship between the parties was governed by statute. Secondly, the parties in that case filed pleadings in which bad faith was made an issue and the case went to full trial at the end of which the trial Court found that the Appellant did not comply with the statute regulating the removal of the Respondent as such it acted outside the confines of its powers. The Ilorin Division of this Court disagreed with the trial Court and set aside the judgment on the ground mainly, that the suit was statute barred, an issue that is jurisdictional in nature. This Court proceeded to determine the question of bad faith only because the matter went to full trial and the trial Court made a finding on bad faith and malice, in the event that its earlier finding that the suit was statute barred was faulted on further appeal to the Supreme Court. That is to say, if the suit were to be found on appeal to the Supreme Court, not to be statute barred.
The case of Okeke Vs. Baba is a certiorari proceeding commenced pursuant to Order 42 Rule 4 of the High Court Civil Procedure Rules of Niger State. The said rule of procedure provides that an application for an order of certiorari to remove judgment, order or proceedings for the purpose of quashing shall be filed within three months after the date of the proceedings in question. The trial Niger State High Court refused the application on the ground that it was made outside the three months period prescribed by its rules of procedure, which are in pari material with the provisions of Section 2(a) of the Public Officers Protection Act. The Jos division of this Court agreed with the trial Court and affirmed its judgment on the ground of delay.
In the case of Ibeto Cement Co. Ltd Vs. A. G. Federation, pleadings were filed and exchanged between the parties and the Respondent raised objection to the suit of the Appellant on the ground of lack of cause of action. After considering the averments in the Appellant’s statement of claim, this Court per Peter-Odili JCA (as he then was) found there was conflict in the already filed and exchanged pleadings of the parties as regards the actual date of the accrual of cause of action. The Court also found that the shutting down of the Appellant’s cement factory was not the only isolated act upon which the cause of that action would rise, but there were other facts and circumstances pleaded by the Appellant in that case that needed full trial to ascertain whether there were any breaches and by whom, which cannot be determined in limine. The Court found from the pleadings of the parties that the various acts continuing and ongoing cannot be defined as negotiations after a cause of action has arisen. His Lordship Peter-Odili JCA concluded that:
“From what has been said above, the present situation cannot be dismissed as cause of action having arisen and overtaken by the period of limitation while negotiations were on going. No, the situation here is different and show quite clearly that the only justice that can be done here is a trial on the merits as there is glaring evidence and materials showing that the trial judge’s jurisdiction was not ousted by the Public Officers Protection Act which in this case cannot operate.”
The learned Appellant Counsel’s contention that the case of Ibeto Cement Co. Ltd is “on all fours” with the present case is incorrect. The circumstances of the two cases are different because in that case, the cause of action was found to be not just one incidence but also several incidences, and parties joined issues on them in their pleadings. Further, it is a misrepresentation to argue as the Appellant’s Counsel did in this appeal, that in the Ibeto’s case this Court established the principle of law that once malice and bad faith are pleaded, the Public officers Protection Act will not be available to the defendant/respondent sued for an act done in the performance of public duty. This insinuation is also incorrect. Rather, Peter-Odili, JCA in that case relied on the Supreme Court’s case of Egbe Vs. Alhaji (supra) where it was held that though malice and bad faith are essential ingredients in the exercise of lawful act, but a determination whether the act is lawful or not can only arise after a cause of action has been established and the time it accrues.
The additional authorities filed by the Appellant are also not helpful to its case either. In Hassan Vs. Aliyu (supra) the Supreme Court did not hold that once bad faith is pleaded,Section 2(a) will not apply. On the contrary, it held that a plea of limitation of law is a jurisdictional issue. In Offobouche V. Ogoja L. G. & Anor. (supra), the same principle of law was stated that limitation law was not designed to protect a public officer who acts in abuse of his office with no semblance of legal justification. But the suit has to be instituted within the three months of the accrual of cause of action for the cause of action to be alive to enable the Court to entertain it. The Appellant’s counsel gave the wrong citation of Alhassan Vs. A. B. U Zaria (supra) while the decision of this Court in CIL Risk & Asset Management Vs. Ekiti State Government & Anor (supra) he relied on was reversed on appeal to the Supreme Court which can be found in (2020) LPELR-49565 (SC), wherein it was held that the provisions of Section 2(a) of Public Officers Protection Act being Federal Act does not protect states public officers and that limitation law does not apply to cases of recovery of land.
Indeed, in the case of Egbe Vs. Yusuf 1992) LPELR-1035 (SC) Wali, JSC speaking for the Apex Court held that the wordings of Section 2(a) of the Public Officers Protection Act are simple and must be accorded their ordinary natural meaning. His Lordship held inter alia:
“It is the general principle of interpretation of statute and instrument that in the absence of an ambiguity, no exposition shall be made which is opposed to the expressed words of the statute or instrument. A Court of law will not put any interpretation on any enactment which is contrary to its plain meaning. If the words are expressly clear, even inconvenience will not justify the Court to depart from their ordinary natural meanings.”
Similarly, in Egbe Vs. Alhaji (supra), Nnemeka-Agu, JSC held at pages 601 to 602 paragraphs H-A on the applicability of the provisions of Section 2(a) of the Public Officers Protection Act that:
“It appears to me from all the decided cases that the real divide between cases in which the public officer is protected and those in which he is not is marked by the question of whether he was acting pursuant to or in execution of his official function. When this question is answered in the affirmative, malice, or ulterior motive cannot deprive the officer of the statutory protection intended for him.”
In the present case, the cause of action is the refusal of the officers of customs to allow the Appellant’s imported bagged cement from being discharged and that happened sometimes in 2009 as I stated earlier, while he filed this suit in 2014. His suit is clearly outside the period stipulated by the Public Officers Protection Act. Officers of the Federal Government, and the Federal Ministry of Commerce and indeed the President who issued the approval to the Appellant to import cement are all public offices and they acted pursuant to the execution of their public officers. They are entitled to the protection of the provisions of Section 2(a) of the Act. The established principle of law is that an action instituted outside the period prescribed by limitation law is defective and the Court lacks jurisdiction to entertain it. The Appellant’s suit is statute barred and the trial Court was right to strike it out. Consequently, I find the answer to issue one in the affirmative and resolve it against the Appellant.

ISSUE TWO
This issue is whether having regards to the facts pleaded in the Appellant’s statement of claim, it was desirable for the trial Judge to hear the suit on the merit. This issue has been determined in my determination of issue one supra. Having found and held that the Respondent is entitled to the protection of Section 2(a) of the Public Officers Protection Act and that this suit was filed by the Appellant outside the three months stipulated by the Act, it means that the Appellant is left with an empty cause of action which cannot be enforced. The trial Court lacks jurisdiction to determine the suit that is clearly statute barred. From all the decided cases on the limitation law, there is a clear affinity between jurisdiction and limitation of an action. In the case of Hassan Vs. Aliyu (supra) referred to by the Appellant’s counsel in his list of additional authority, Onnoghen, JSC (as he then was) speaking for the Apex Court held:

“When an issue of limitation of time to institute an action is raised, it is a preliminary issue touching on the competence of not only the action, but of the Court before which the action pends. It is long settled that an issue of jurisdiction is a periphery matter which must be resolved before proceeding to determine the merits of the case, where the issue is found not to have any merit.”
It is logical that when the suit is statute-barred, legal Proceedings cannot be validly instituted let alone tried against a public officer outside the three months period prescribed by the Limitation Act. This issue is answered in the negative and resolved against the Appellant.

Having resolved the two issues identified by the Appellant against it, the destiny of this appeal is a dismissal for lack of any iota of merit. I dismiss it. I affirm the ruling of the Federal High Court delivered on the 1st December 2015 in respect of Suit NO: FHC/L/CS/898/2014. Parties shall bear their cost of prosecuting this appeal.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the ample opportunity to peruse, in advance, the succinct leading judgment delivered by my learned brother: Balkisu Bello Aliyu, JCA. I endorse, in toto, the articulate reasoning conclusion in it.

In the interest of emphasis, at times a cause of action does not enure in favour of its owner ad infinitum. Hence, a party must be diligent in harnessing his cause of action when his right is eroded.

The appellant was guilty of indolence in the prosecution of its accrued right and cause of action. It slept over its right until it was stale. Even equity aids the vigilant not the indolent. The lower Court did not defile the law as to warrant the intervention by this Court.

For this reason, coupled with the detailed reasons chronicled in the alluring leading judgment, l, to dismiss the appeal in the manner decreed in it.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read in draft, the leading judgment of my learned brother, Balkisu Bello Aliyu, JCA, which has just been rendered.

Having duly cogitated and excogitated on the Records of Appeal and the briefs of argument filed and exchanged by the parties, I find that the manner of resolution of the issues for determination are in accord with my views.

Consequently, I adopt the reasoning and conclusion in the leading judgment as mine and also dismiss their appeal for being devoid of merit. I abide-by the Order as to Costs contained in the leading judgment.

Appearances:

A. AWOSIKA ESQ. For Appellant(s)

ABSENT For Respondent(s)