SUNSHINE OIL & CHEMICAL DEV. CO. LTD v. SON
(2022)LCN/16421(CA)
In The Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, July 08, 2022
CA/ABJ/CV/810/2020
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
SUNSHINE OIL AND CHEMICAL DEVELOPMENT COMPANY LIMITED APPELANT(S)
And
STANDARD ORGANISATION OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT A JUDGMENT INBBREACH OF FUNDAMENTAL RIGHT TO FAIR HEARING RENDERS SUCH JUDGEMENT A NULLITY
My Lords, issue one raises the vexed issue of when in law can the proceedings and or judgment of a Court be said to be in breach of the right to fair hearing as constitutionally guaranteed in the determination of the civil rights and obligations of the parties to a case? In law, so grave is this issue that the effect of such a breach is that it invariably renders such a judgment a nullity. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill JCA. See also Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276, Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595, Ovunwo & Anor V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522, Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 at p. 593, News Watch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144.
Now, the right to fair hearing is very fundamental and failure by a Court to observe it would invariably vitiate both the proceedings and judgment of such a Court, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit.
The issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill JCA. See also Uzodinma V. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30. Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509 at p. 531, Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 at p. 40. PER GEORGEWILL, J.C.A.
WHETHER OR NOT THE COURT MUST CONSIDER ALL ISSUES SUBMITTED BEFORE IT FOR DETERMINATION BY PARTIES
My Lords, it is the law that a Court, particularly all Courts lower in the hierarchy of Courts to the Supreme Court, must consider and pronounce on all issues arising and properly submitted before it for determination by the contending parties. This has been consistent, or should I say the persistent, admonition of the Apex Court and all Court, including this Court and the lower Court are obligated to comply with same. Thus, a deliberate failure by a Court to consider all pertinent and relevant issues arising from and submitted by a party would readily and justifiably be characterized as amounting to a failure to perform its statutory duty and a breach of the right to fair hearing of the party. See Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill JCA. See also Federal Ministry of Health V Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193; Ovunwo V Woko (2011) 17 NWLR (Pt. 1277) 522. PER GEORGEWILL, J.C.A.
THE POSITION OF LAW WHEN THE RIGHT OF FAIR HEARING IS BREACHED
In law, once the right to fair hearing is breached, the issue of the merit or otherwise or even the correctness and soundness of the judgment pales into insignificance in the resultant nullity of the judgment reached in breach of a party’s right to fair hearing. See Ejeka V. State (2003) 7 NWLR (Pt. 819) 408, where the Supreme Court per Niki Tobi JSC (God bless his soul) had stated inter alia thus:
“The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one party is not adequately considered, the affected party can complain that he was denied fair hearing.”
See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill JCA, Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276, Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595, Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144, Shekete V. NAF (2007) 14 NWLR (Pt. 1053) 159 at P. 190, Ukwuyok V. Ogbulu (2010) 5 NWLR (Pt. 1187) 316 @ p. 346. PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Abuja, Coram: B.F.M. Nyako J, in Suit No. FHC/ABJ/CS/204/2008: Sunshine Oil and Chemical Development Company Limited V. Standard Organization of Nigeria delivered on 10/7/2020. The claims of the Appellant as Claimant against the Respondent as Defendant were dismissed.
The Notice of Appeal was filed on 29/7/2020 on five grounds of appeal. See pages 398 – 406 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 23/9/2020. The parties filed and exchange their briefs, which were adopted as their arguments at the hearing of this appeal on 28/4/2022. The Appellant was represented by Tunde Ahmed Adejumo Esq., holding the brief Kehinde Ogunwumiju SAN, appearing with E.J. Longe Esq. The Respondent was represented by Ademola Folarin Esq., holding the brief of Dr. A. I. Layonu SAN.
By a Writ of Summons and Statement of Claim filed on 2/4/2008 before the lower Court, the Appellant as Claimant claimed against the Respondent as Defendant the following reliefs, to wit:
1. A Declaration that the Refined White Crystal Granulated Sugar qualifies as “Food” under the National Agency for Food and Drug Administration and Control (NAFDAC) Act.
2. A Declaration that the Defendant lacks the powers to regulate and control the importation of items such as sugar and other items which qualify as food and drugs.
3. A Declaration that the Defendant’s refusal to give clearance for importation of products that are not prohibited for importation by the Federal Government of Nigeria is unlawful, illegal and wrongful.
4. A Declaration that the Defendant’s directive that the Plaintiff should buy fortified sugar from Dangote Industries Ltd which the Defendant described as the approved companies granted license to handle the supply of unfortified sugar for all local users, is illegal, wrongful and discriminatory.
5. The sum of N194,042,452.05 being special damages and/or loss suffered by the Plaintiff as a result of the Defendant’s refusal to give clearance for the importation of its product. The particulars of special damages are to wit:
a. Finance cost for the 3 letters of credit at the rate of N36,405,817. 35 x 3 – N109,217,452.05
b. One year rent for the Warehouse in Germany at $10,000.00 per month x N130.00 = N15,600,000.00
c. Depreciation cost due to long storage for one year (20% of L/C’s value) = N69,222,000.00
6. N180,000,000.00 being damages for loss of anticipated profit which the Plaintiff would have made on the transaction as at February, 2006 if the Defendant had not refused to give clearance for the importation of the 7, 500mt of Refined White Crystal Granulated Sugar by the Plaintiff.
7. N432,000,000.00 being damages suffered by the Plaintiff as a result of its inability to turn over the N180,000,000.00 anticipated profit as at February, 2006, which represent 40% every four months, from February 2006 to February, 2008 due to the Defendant’s refusal to give clearance for the importation of 7,500mt of Refined White Crystal Granulated Sugar by the Plaintiff.
8. Damages of N72,000,000.00 per quarter (40% per quarter on the N180,000,000.00 anticipated profit) being the quarterly turnover profit the Plaintiff would have made from the time of filing this action till Judgment.
9. 10% interest per annum on the Judgment sum from the date of judgment till liquidation by the Defendant. See pages 3 – 11 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
The Appellant is a limited liability company involved in the business of export, import and marketing of various merchant and industrial products. Sometimes in 2005, the Appellant sought to import 7,500 mt of sugar unfortified with Vitamin A from its supplier in Geneva, Switzerland following a Local Purchase Order (LPO) issued to it by Sara Foods Limited for which it authorized its Banker, Intercontinental Bank Plc to open unconfirmed Letters of Credit in favor of its supplier. Upon receipt of the Letters of Credit and Forms M by the supplier, the Appellant’s consignment of the product was produced and delivered to the port of loading in Germany.
By a letter dated 29/11/2005, the Appellant’s pre-shipment inspection agent, Swede-Control Intertek informed the Appellant through its banker that the Respondent’s official clearance was required to enable it to inspect the shipment before importation. By a letter dated 5/12/2005, the Appellant applied to the Respondent for clearance but due to the delay by the Respondent to respond, the Appellant by a letter dated 9/12/2005 instructed its banker to inform the pre-shipment inspection agent to proceed with the inspection of the commodity so that it would be delivered within time.
However, by a letter dated 28/12/2005 and received by the Appellant on 21/1/2006, the Respondent informed the Appellant that the importation of sugar unfortified with Vitamin A had been banned from January 2005 thereby refusing the Appellant’s application for clearance and stating the names and addresses of three approved companies and directed the Appellant to buy unfortified sugar from them. The LPO issued by the Appellant’s customer, Sara Food Limited expired on 1/3/2006. The Appellant kept the product in the said warehouse in Germany awaiting the Respondent’s clearance for one year at the cost of $120,000 and was compelled to sell the product at a reduced price in Germany and thereby suffered immense losses and damages. See pages 202 – 203 and 209 – 216 of the Record of Appeal.
The Respondent is an agency of the Federal Government established to standardize methods and products in Nigerian industries amongst other functions and acting on the directives given it by the Ministry of Industries had informed the Appellant vide its letter dated 28/12/2005 that importation of unfortified sugar for industrial use and/or manufacturing and/or processing/production or as raw material, without approval of the Ministry who will direct it to import through accredited companies, is not allowed into the country as recommended in the Final Report of the Presidential Technical Committee. But, following series of correspondence between the parties and other Government agencies in respect of the Appellant’s complaint, the Minister of Industries confirmed the refusal by the Respondent of the Appellant to import unfortified Sugar without due process by a letter dated 11/9/06. However, it took the Appellant more than two years thereafter to commence its action against the Respondent before the lower Court on 2/4/2008. See pages 155 – 158 of the Record of Appeal.
The parties filed and exchanged pleadings and the matter proceeded to trial. However, on 20/11/2008 the Respondent filed a Notice of Preliminary Objection challenging the competence of the Appellant’s suit. The Appellant called one witness, Bashir Rotimi Obeisun who testified as PW1 and tendered several documents, which were admitted in evidence as Exhibits A – R. The Respondent also called one witness, Muhammed Tentunji who testified as DW1 and tendered several documents, which were admitted as Exhibits DW1A – DW1L. At the close of the trial, the parties filed and exchanged their final written addresses, which were duly adopted by them on 13/12/2020. On 10/7/2020, the lower Court delivered its judgment striking out the Appellant’s Suit for being Statute barred, hence the appeal. See pages 374 – 397 and 398 – 406 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, issues were distilled as arising for determination from the five grounds of appeal, to wit:
1. Whether or not the lower Court was correct to have found that the Appellant’s Suit was statute barred? (Distilled from Grounds 1, 2 and 3)
2. Whether or not having declined jurisdiction to entertain the Suit, the lower Court was wrong to have refused to pronounce on the merits of the Suit? (Distilled from Ground 4)
3. Whether or not considering the facts and evidence led, the lower Court ought to have granted the reliefs claimed? (Distilled from Ground 5)
In the Respondent’s brief, issues were distilled as arising for determination from the five grounds of appeal, to wit:
1. Whether the lower Court was not right when it held that the Appellant’s Suit was statute barred by virtue of the provisions of Section 2(a) of the Public Officers (Protection) Act, Cap. P41 2004? (Distilled from Grounds 1, 2, 3 and 4)
2. Whether in the light of the facts and evidence presented and the circumstances of this Suit, the Appellant is entitled to the reliefs sought against the Respondent this appeal? (Distilled from Ground 5)
My Lords, I have taken time to review the pleadings of the parties and the issues joined therein. I have also considered the evidence, both oral and documentary as led by the parties as in the Record of Appeal. I have further reviewed the submission of counsel for the parties in the light of the findings and decisions in the judgment of the lower Court appealed against by the Appellant. I am of the view that the issues arising for determination in this appeal are the three issues as distilled in the Appellant’s brief, a consideration of which would involve, in my opinion, a consideration of the two issues as distilled in the Respondent’s brief. However, I shall consider Appellant’s issues one and two together with the Respondent’s issue one and thereafter, and if need be, depending on our issues one and two are determined, I shall consider issue three together with Respondent’s issue two. I shall proceed to consider issues one and two anon!
ISSUE ONE AND TWO
Whether or not the lower Court was correct to have found that the Appellant’s Suit was statute barred AND whether or not having declined jurisdiction to entertain the Suit, the lower Court was wrong to have refused to pronounce on the merits of the Suit?
APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on issue one and two, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that the lower Court was wrong when it held that the Appellant’s Suit was Statute barred and contended that the lower Court in arriving at its perverse decision acted in breach of the Appellant’s right to fair hearing when it failed to consider and pronounce on the Appellant’s issues/arguments canvassed in opposition to the Respondent’s Notice of preliminary objection before finding that the Appellant’s Suit was Statute barred and urged the Court to hold that in law the lower Court was duty bound to consider the issues and arguments canvassed by the Appellant and the failure to do so had occasioned a breach of the Appellant’s right to fair hearing and to allow the appeal and set aside the perverse judgment of the lower Court. Counsel referred to Section 2 (a) of the Public Officers Protection Act 2004.
It was also submitted the Appellant’s Suit was not statute barred since the protection afforded by the Public Officers Protection Act 2004 does not avail the Respondent by reason of the fact that acts of the Respondent being complained of were carried out in bad faith and outside the colour or scope of its duties and functions under the relevant laws and contended that notwithstanding these crucial arguments submitted for consideration, the lower Court neither considered nor made any findings or pronouncements on these issues canvassed before it by the Appellant and urged the Court to hold that the failure of the lower Court, contrary to its duty, to consider and pronounce on the issues canvassed by the Appellant rendered the entire judgment a nullity having been reached on breach of the Appellant’s right to fair hearing and to allow the appeal and set aside the perverse judgment of the lower Court. Counsel referred to Section 2(a) of the Public Officers Protection Act 2004, and relied on C. N. Okpala & Sons Ltd V. NB Plc (2017) LPELR – 43826 (SC) at p. 17, Fode Drilling (Nig) Ltd V. Fabby & Ors (2017) LPELR – 42822(CA) at pp. 38 – 39, Kwara State Pilgrims Welfare Board V. Baba (2018) LPELR – 43912 (SC) at pp. 26 – 27, Offoboche V. Ogoja Local Government & Anor (2001) LPELR – 2265 (SC) at p. 17.
It was further submitted that from the averments and evidence led by the Appellant in law, it was clear that the Respondent was not entitled to the protection afforded by Section 2(a) of the Public Officers Protection Act because the acts of the Respondent’s being complained of was carried out in bad faith and outside the colour or scope of its duties and functions under the relevant laws and contended that the lower Court never considered such crucial arguments canvassed by the Appellant when it arrived at the perverse decision that the Appellant’s Suit was statute barred and urged the Court to hold that the Appellant’s Suit was not statute barred as erroneously held by the lower Court and to allow the appeal and set aside the perverse judgment of the lower Court. Counsel referred to Section 2(a) of the Public Officers Protection Act 2004, and relied on University of Ibadan V. Govt of Kwara State (2012) LPELR – 14326 (CA) at pp. 91 – 95, Hassan V. Aliyu & Ors (2010) LPELR -1357 (SC) at p. 84.
It was also further submitted that there is no provision in the enabling Act setting up the Respondent that confers any power on the Respondent to regulate and control the importation of food items such as sugar and other items which qualify as foods and drugs, which is under the exclusive jurisdiction of the National Agency for Food and Drug Administration and Control, which is the agency of the Federal Government saddled with the responsibility of regulating and controlling the importation of food items such as sugar and other items which qualify as foods and drugs and contended that the Minister of Industry cannot by a directive pursuant to its power under Section 2(1) of the SON Act expand the scope of the powers/functions/duties of the Respondent beyond the powers/functions/duties conferred on it by law and urged the Court to hold that the Respondent clearly acted both in bad faith and without any colour of power had acted outside its scope and limit of duty and to allow the appeal, set aside the perverse judgment of the lower Court and proceed to determine the claims of the Appellant against the Respondent on the merit. Counsel referred to Sections 2(1), 4 and 5 of the Standard Organization of Nigeria Act; Sections 5(a) and 5(e) of the National Agency for Food and Drug Administration and Control Act, and relied on Amasike V. Reg – Gen. C.A.C (2010)13 NWLR (Pt. 1211) 337 at p. 399, Psychiatric Hospital Management Board V. Ejitagha (2000)11 NWLR (Pt. 677) 154, Egbe V. Alhaji (1990) 1 NWLR (Pt. 128) 546 at P. 600, Olofu V. Itodo (2010) 18 NWLR (Pt. 1225) 545 at p. 577, Olaniyan V. University of Lagos (1985) 2 NWLR (Pt. 9) 599, Nwosu V. FRN & Ors (2013) LPELR – 22143 (CA) at pp. 24 – 25, Orji V. Ugochukwu (2009) 14 NWLR (Pt. 1161) 207 at p. 291, Oloruntoba – Oju V. Abdul – Raheem (2009) All FWLR (Pt. 497) 1 at p. 44, SPDCN Ltd V. Agbara (2016) 2 NWLR (Pt . 1496) 353 at p. 419, Olanrewaju V. Oyeyemi & Ors (2000) LPELR -6045 (CA) at p. 34, The Governor of Oyo State & Ors V. Folayan (1995) LPELR – 3179 (SC) at p. 59.
It was also further submitted that the Respondent acted in bad faith in that at the time the Respondent took the decision to prevent the Appellant from importing sugar unfortified with Vitamin A in 2005, there was no law, regulation or directive prohibiting the importation of sugar unfortified with Vitamin A and contended that in law where a public body claims to have acted pursuant to a power granted by statute, the public body must justify its act by showing that the said statute applied in the circumstances and that it was empowered to act under it and urged the Court to hold that the Respondent failed woefully to prove that the law, regulation or policy prohibiting the importation of Sugar Unfortified with Vitamin A was in existence as at January 2005 and to allow the appeal, set aside the perverse judgment of the lower Court and proceed to determine the claims of the Appellant against the Respondent on the merit. Counsel referred to Regulations 2005 S.I. No 47 of 2005 and relied on Amasike V. Reg – Gen. C.A.C (2010)13 NWLR (Pt. 1211) 337 at p. 399, Ogbeiwi V. Egharevba (2009) LPELR – 4685(CA) at p. 54, Jolasun V. Bamgboye (2010) LPELR – 1624(SC) at p. 44.
It was also submitted that the lower Court even when it had erroneously held that the Appellant’s Suit was Statute barred ought to have proceeded to resolve these crucial issues as to whether the Respondent had acted in bad faith and outside the scope and limits of its power in refusing to grant approval for the importation of the products applied for by the Appellant and contended that in law the lower Court having declined jurisdiction to entertain the Appellant’s Suit, was still under a duty to resolve all the other issues in the Suit and urged the Court to hold that the lower Court in refusing to consider all the crucial issues in the Appellant’s Suit as submitted before it by the parties failed in the performance of its duty to the parties according to law and had thereby occasioned grave miscarriage of justice in a matter commenced before it since 2008, and to allow the appeal and set aside the perverse judgment of the lower Court. Counsel relied on JWAN V. Ecobank & Anor (2018) LPELR – 45631 (CA) at pp. 29 – 30, Trioversal Design Associates V. Commissioner for Health and Human Services, Yobe State & Anor (2019) LPLER – 47072 (CA) at Pp. 19 – 20.
RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on his issue one, which I have taken time to review, learned counsel for the Respondent had submitted inter alia that though the lower Court did not consider the issues canvassed by the Appellant against the Respondent’s notice of preliminary objection, this Court can and should invoke the provisions of the Court of Appeal Act and consider the issue of the incompetency of the Appellant’s Suit having been caught by the provisions of the Public Officers Protection Act 2004 and urged the Court to hold that at the time the Appellant’s Suit was filed on 24/4/2008, more than two years after the accrual of the cause of action on 28/12/2005 or on 21/1/2006 when the Respondent communicated its refusal to grant the requested approval, it had become Statute barred and to dismiss the Appellant’s Suit for being statute barred. Counsel referred to Section 15 of the Court of Appeal Act 2004, and relied on Ado Ibrahim & Co Ltd V. Bendel Cement Co Ltd (2007) 15 NWLR (Pt. 1058) 538 at p. 560; Okechukwu V. UBA Plc & Anor (2017) LPELR-43100 (CA) at pp. 13 – 15.
It was also submitted that on the pleadings and evidence led by the parties it was clear that the Appellant’s Suit commenced on 2/4/2008 to enforce a cause of action that arose on 21/1/2006 was by operation of the Public Officers Protection Act statute barred as was correctly held by the lower Court and contended that all the ingredients for the application of the defence afforded public officers, being a public office and carrying out its public duty, were present and validly afforded a protection to the Respondent, public officer, against the Appellant and urged the Court to hold that the Respondent is a public officer and acted in pursuance of its public duty and therefore, was entitled to the protection afforded by the provisions of the Public Officers Protection Act 2004 and to dismiss the appeal and affirm the dismissal of the Appellant’s Suit for being incompetent having been Statute barred. Counsel referred to Section 2(a) of the Public Officers Protection Act 2004; Section 5 (1) (1) of the Standard Organization of Nigeria Act, and relied on John Ekeogu V. Elizabeth Aliri (1990) NWLR (Pt. 126) 345, Fakolade V. Public Service Commission (1993) 1 NWLR (Pt. 27) 639 @ pp. 643 – 644, Ibrahim V. Judicial Service Committee Kaduna State (1998) 12 SCNJ 255, Offoboche V. Ogoja Local Government & Anor (2001) 16 NWLR (Pt. 739) 458, Rahamaniyya United Nig. Ltd. V. Ministry for Federal Capital Territory & Ors. (2008) LPELR – 8391(CA).
It was further submitted that the Respondent acted in accordance with its duty under its enabling law in that the act of the Respondent refusing the request for clearance to import unfortified sugar by the Appellant was predicated not only on the just directives of the Minister of Industry imposed on it as a matter of public duty in implementing Government policy on sugar fortification, but also under its statutory duty under the Standard Organization of Nigeria Act as affirmed by the evidence of the DW1 and contended that apart from the powers conferred on the Respondent by its enabling law to regulate standards in Nigeria, the Respondent was specifically invited on 30/10/2003 by the Ministry of Industry to discuss the modalities for effective implementation of the Federal Government policy on the importation of unfortified sugar and urged the Court to hold by virtue of a circular dated 4/8/2004 the Federal Ministry of Industry not only approved and directed the Respondent to implement the granting of approval for importation of sugar unfortified with Vitamin A and which performance of its public duty was not and cannot amount to bad faith and or ultra vires the powers of the Respondent and to dismiss the appeal and affirm the dismissal of the Appellant’s Suit for being incompetent, having been Statute barred.
It was also further submitted that there was absolutely no act of bad faith in the Respondent merely carrying out the implementation of the Federal Government policy on unfortified sugar in the manner which was jointly agreed to by both the stakeholders in the sugar industry and the Ministry of Industry and contended that indeed it was proved by the DW1 that the regulation, being implemented by the Respondent, was made for benefit of the public to prevent diseases emanating from lack of vitamin A in foods sold in Nigeria and urged the Court to hold that by the Federal Government Policy an approval and clearance by the Minister of Industry is a pre-condition before any importer could even place an order for the importation of unfortified sugar, contrary to the procedure adopted by the Appellant and to dismiss the appeal and affirm the dismissal of the Appellant’s Suit for being incompetent, having been statute barred. Counsel referred to Section 2 (1) of the Standards Organizations of Nigeria Act, Cap. S. 9 Laws of the Federation of Nigeria 2004.
It was also further submitted that in the absence of any bad faith and the Respondent having acted pursuant to the laws, regulations made thereunder and the directives of its supervisory Minister was entitled to the protection afforded by the Public Officers Protection Act 2004 and contended that the Appellant having failed to commence its action against the Respondent within the three months limitation period from the date of the accrual of the cause of action was caught up by the provisions of the Public Officers Protection Act 2004 having been commenced out of the limitation period of three months notwithstanding any further exchanges of correspondences between the parties and urged the Court to hold that the Appellant’s Suit was incompetent and liable to be dismissed having been statute barred and to dismiss the appeal and dismiss the Appellant’s Suit. Counsel relied on Ibrahim & Ors V. Yusuf (2016) LPELR – 40259 (CA), Unity Bank Plc V. Chief S.U Nwadike & Anor (2009) 4 NWLR (Pt. 1131) 352 at p. 376; Nwadiaro V. Shell (1990) 5 NWLR (Pt. 150) 322 at pp. 338 – 339.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In the reply submissions, which I have taken time to review, learned Senior Advocate for the Appellant focused his attention to issues canvased under issue two in the Respondent’s brief, which shall await the consideration of issue three as set down for consideration in this appeal in this judgment.
RESOLUTION OF ISSUES ONE AND TWO
My Lords, issue one challenges frontally the alleged failure of the lower Court to consider the issues of bad faith and of acts ultra vires the powers of the Respondent as basis for the inapplicability of the Public Officers Protection Act 2004 in respect of the claims of the Appellant against the Respondent. On its part. Issue two deals with the admonitions of the Apex Court, as well as this Court, to trial Courts to endeavour to consider all issues submitted before them by the parties even where it comes to the conclusion, on an objection to the competence of the Suit, that it has not the requisite jurisdiction to entertain the substantive Suit.
Before the lower Court the parties filed and exchanged pleadings. However, the Respondent filed a Notice of preliminary objection challenging the competence of the Appellant’s Suit on the sole ground that it was statute barred having, allegedly, not been filed within the three months limitation period as required by the Public Officers Protection Act 2004. On 7/10/2010, the lower Court, per A. Bello J., the former judge, heard the preliminary objection and on 13/12/2010, it ruled that the Respondent did not plead the defence of limitation statute, which in its view ought to be pleaded before it could be relied upon, and held further that allegation of bad faith and ultra vires act made by the Appellant against the Respondent would require evidence to be resolved. Consequently, the preliminary objection was dismissed. See pages 365 – 372 of the Record of Appeal.
Subsequently, the Respondent amended its pleading and placed reliance on the provisions of the Public Officers Protection Act 2004. The matter then proceeded to trial before another judge, B. F. M. Nyako J., who heard the matter. The Appellant called one witness, Bashir Rotimi Obeisun who testified as PW1 and tendered several documents, which were admitted in evidence as Exhibits A – R. He was cross-examined. The Respondent also called one witness, Muhammed Tentunji who testified as DW1 and tendered several documents, which were admitted as Exhibits DW1A – DW1L. He was cross-examined. I have taken time to review the averments in the pleadings of the parties and evaluated the evidence led by the parties as in the Record of Appeal. See pages 209 – 223 of the Record of Appeal for the Appellant’s Amended Statement of Claim filed on 9/2/2016; pages 155 – 159 of the Record of Appeal for the 1st Amended Statement of Defence filed on 21/11/2011, and pages 202 – 206 of the Record of Appeal for the reply to 1st Amended Statement of Defence. See also pages 374 – 397 and 398 – 406 of the Record of Appeal for the evidence of PW1 and DW1.
It was on the strength of the pleadings and evidence, both oral and documentary, as led by the parties through their respective sole witness as in the Record of Appeal that the lower Court had in its judgment delivered on 10/7/2020, struck out the Appellant’s suit for being statute barred, holding and stating inter alia as follows:
“First, I need to address the preliminary objection the defendants raised the issue of limitation of action alleging that the case of Applicant is statute barred. What I need to look at to determine if the case is caught by time as per the Public Officers Protection Act is the date of accrual of the cause of action via – a – vis the date that the action was instituted. From the endorsement on the case file, this case was instituted on 2/4/2008. For when the cause of action accrued, I need look only at the Plaintiff’s witness statement and Statement of claim. By the Statement of Claim and the Exhibit before the Court the Plaintiff, applied to the Defendant for clearance to import the product, that is 7,500 Mt of Refined White Crystal granulated sugar by letter dated 5/12/2005, as in Exhibit G. The Defendant by a reply letter dated 28/12/2005 informed the Plaintiff of the refusal to grant the clearance, as in Exhibit H….In this instant case, the cause of action, accrued on the 28/12/2005. The question will then be, was the cause of action caught by time? The question will then be, was the cause of action caught? I have looked at the processes before me, the Plaintiffs commenced this action after the prescribed statutory period enshrined in Section 2(a) of the Public Officers Protection Act…Yes, this action is caught by time being commenced after the prescribed statutory period had lapsed. Consequent upon which, this Court lacks the requisite jurisdiction to entertain and determine this cause of action. This cause of action hereby fails and it is accordingly struck out.” See pages 374 – 397 of the Record of Appeal.
My Lords, issue one raises the vexed issue of when in law can the proceedings and or judgment of a Court be said to be in breach of the right to fair hearing as constitutionally guaranteed in the determination of the civil rights and obligations of the parties to a case? In law, so grave is this issue that the effect of such a breach is that it invariably renders such a judgment a nullity. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill JCA. See also Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276, Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595, Ovunwo & Anor V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522, Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 at p. 593, News Watch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144.
Now, the right to fair hearing is very fundamental and failure by a Court to observe it would invariably vitiate both the proceedings and judgment of such a Court, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit.
The issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill JCA. See also Uzodinma V. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30. Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509 at p. 531, Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 at p. 40.
The complaint under issue one is that the lower Court, before which the parties had submitted their various arguments for and against the applicability of the provisions of the Public Officers Protection Act in relation to the allegation of bad faith and ultra vires acts against the Respondent by the Appellant, failed to consider and pronounce on these issues as canvassed by the Appellant and for which the parties duly joined issues in their final written addresses duly adopted by them on 13/2/2020 before the lower Court.
My Lords, it is the law that a Court, particularly all Courts lower in the hierarchy of Courts to the Supreme Court, must consider and pronounce on all issues arising and properly submitted before it for determination by the contending parties. This has been consistent, or should I say the persistent, admonition of the Apex Court and all Court, including this Court and the lower Court are obligated to comply with same. Thus, a deliberate failure by a Court to consider all pertinent and relevant issues arising from and submitted by a party would readily and justifiably be characterized as amounting to a failure to perform its statutory duty and a breach of the right to fair hearing of the party. See Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill JCA. See also Federal Ministry of Health V Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193; Ovunwo V Woko (2011) 17 NWLR (Pt. 1277) 522.
The above position of the law is so because only the Supreme Court is vested with the unquestionable authority to isolate just one critical issue amid others before it, and determine an appeal based on it. See Shasi V. Smith (2010) 6 WRN 39 at p. 68. See also Uzuda V. Ebigah (2009) 48 WRN 1.
I have taken time, and happily the learned counsel for the Respondent made no fuss about it but had displayed a remarkable sense of candor in conceding this issue, and I cannot see and or find anywhere these issues of bad faith and ultra vires acts as alleged against the Respondent by the Appellant was even merely referred to and or considered and resolved by the lower Court before it proceeded to hold that the Appellant’s Suit was statute barred. Curiously, whilst the lower Court found it convenient to consider and resolve the reliance of the Respondent on the provisions of the Public Officers Protection Act 2004 against the competence of Appellant’s Suit, it did not even as much as spare a thought to the issues canvassed by the Appellant, as to why the provisions of Section 2 (a) of the Public Officers Protection Act 2004 was inapplicable to the Appellant’s Suit, as required of a Court of law which was under a duty to treat and afford both parties equal opportunities to have issues submitted by them to be considered and determined by the Court, but why? In the determination of matters and or issues put forward before it by the parties, a Court of law must hold the balance on an even keel and must afford both parties equal opportunity to be heard and have their matters determined according to law. In the litigation battle no one party, no matter his status or pedigree, is higher than the other as all are to be afforded equal opportunity to be heard and have their matters and or issues determined impartially. It is thus wrong for the lower Court to consider and resolve the objection to the competence of Appellant’s Suit raised by the Respondent, whilst failing to give any thought to and ending up not determining the issues canvassed against the preliminary objection by the Appellant. In law, once the right to fair hearing is breached, the issue of the merit or otherwise or even the correctness and soundness of the judgment pales into insignificance in the resultant nullity of the judgment reached in breach of a party’s right to fair hearing. See Ejeka V. State (2003) 7 NWLR (Pt. 819) 408, where the Supreme Court per Niki Tobi JSC (God bless his soul) had stated inter alia thus:
“The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one party is not adequately considered, the affected party can complain that he was denied fair hearing.”
See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill JCA, Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276, Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595, Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144, Shekete V. NAF (2007) 14 NWLR (Pt. 1053) 159 at P. 190, Ukwuyok V. Ogbulu (2010) 5 NWLR (Pt. 1187) 316 at p. 346.
It is therefore true as alleged and proved by the Appellant, and even conceded by the learned counsel for the Respondent, and I so find as fact, that the lower Court neither considered nor determined the issues canvassed by it against the applicability of the Public Officers Protection Act 2004 relied upon by the Respondent to challenge the competence of the Appellant’s Suit as was dutifully required of it as an impartial arbiter and thereby breached the right of the Appellant to fair hearing as guaranteed to it by the basic law of the land, the Constitution. See Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides thus:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
My Lords, having held that the lower Court in reaching its decision that the Appellant’s Suit was statute barred without any consideration of the issues canvassed by the Appellant had acted in breach of the Appellant’s right to fair hearing, this is one of those cases, amongst many others, I believe that Section 15 of the Court of Appeal Act 2004 should be readily invoked by this Court to ensure that real and substantial justice is done according to law. Thus, under Section 15 of the Court of Appeal Act 2004, this Court has all the powers of the lower Court and can in order to settle completely and finally the matter in controversy between the parties to an appeal and in order to avoid multiplicity of legal proceedings concerning any of those matters, grant all such remedies as any of the parties may appear to be entitled to such a remedy after a claim has been plainly made out, though not formally claimed and dealt with according to the relevant principles governing such a claim if it has been formally made. See Chief Austine Oguejifor & Anor V. Ubakason Nigeria Limited (2022) LPELR – 56783(CA), per Sir Biobele Abraham Georgewill JCA. See also Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at p. 612.
I shall therefore, and do hereby, invoke the provisions of Section 15 of the Court of Appeal Act 2004 and shall proceed to consider the issue of the applicability or otherwise of the Public Officers Protection Act 2004 to the claims of the Appellant against the Respondent. See Chief Austine Oguejifor & Anor V. Ubakason Nigeria Limited (2022) LPELR – 56783(CA), per Sir Biobele Abraham Georgewill JCA.
Now, the law on limitation of action is simply a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of stale claims. In its operation, it extinguishes the right to action but not the cause of action itself, which is rendered bare and unenforceable in a Court of law. The rationale for limitation of time for the commencement of action would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost or due to unavailability of materials evidence or death or unavailability of vital key witnesses, due to no fault of his, necessary for his defense which would have otherwise been available if the claims were commenced timely within the period as allowed under the relevant applicable limitation law. See Ize – Iyamu Osagie Andrew V. Kadiri Sunday Oshoakpemhe & Ors (2021) LPELR- 53228 (CA) per Sir Biobele Abraham Georgewill JCA. See also Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 at p. 416. See also Ikosi Industries Ltd V. Lagos State Govt. & Ors (2017) LPELR – 41867 (CA); P. N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900.
In 1987 in Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1, the Supreme Court had considered and simplified the duty of a Court when faced with the resolution of the issue whether or not a suit is statute barred and had succinctly pronounced with finality inter alia thus:
“How does one determine the period of limitation? The answer is simply 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.”
See also Ize – Iyamu Osagie Andrew V. Kadiri Sunday Oshoakpemhe & Ors (2021) LPELR- 53228 (CA) per Sir Biobele Abraham Georgewill JCA, Ikosi Industries Ltd V. Lagos State Govt. & Ors (2017) LPELR – 41867 (CA).
In law, the first duty of this Court in determining whether the Appellant Suit was statute barred or not is by looking at the date when the cause of action arose and comparing same with the date the Suit was filed to see if it was filed within or outside the limitation period. However, where a Claimant, as in the instant case, the Appellant, had raised the issue of bad faith and ultra vires acts against a Defendant, a pubic officer, as in the instant case, the Respondent, the Court must also consider whether or not the limitation law, such as the Public Officers Protection Act, was applicable to the cause of action.
Now, the Appellant’s Suit, commenced by means of a Writ of Summons, was filed on 2/4/2008, whilst its cause of action arose ordinarily on 26/1/2006. The Appellant thus, had three months from the date of 26/1/2006, if the Public Officers Protection Act 2004 was applicable, to validly commence an action in a Court to law to enforce its cause of action against the Respondent, which undoubtedly, and the parties are ad idem on this, is a public officer.
So, was the Respondent entitled to the protection afforded by Section 2(a) the Public Officers Protection Act 2004 or was it by reason of bad faith and ultra vires acts as alleged by the Appellant deprived of the protection afforded by the Section 2(a) the Public Officers Protection Act 2004? This, in my view, and I so hold, is the whole crux of issue one upon my due invocation of the provision of Section 15 of the Court of Appeal Act 2004.
In law, the Appellant being the party that had positively alleged bad faith and ultra vires acts against the Respondent as the basis for its contention that the provision of Section 2 (a) of the Public Officers Protection Act 2004 does not avail the Respondent, it bears the onus of discharging this burden by credible evidence at the trial before the lower Court, which had earlier held per A. Bello J, that such an allegation can only be determined upon evidence of the parties. So, did the Appellant prove by credible evidence as in the Record of Appeal, in line with the averments in its pleadings, that the Respondent acted in bad faith and or outside the scope and limit of its legal powers when it refused to grant the approval sought by the Appellant vide its letter of 5/12/2005 to import sugar without Vitamin A fortification into Nigeria from Germany in line with its local purchase orders for supply to its customer?
In law, facts pleaded in a pleading are not by themselves evidence. In other words, pleading per se does not constitute evidence. Thus, where the requisite evidence was not led by the party in support and proof of his averment of facts in his pleadings, then neither those mere averments in pleadings nor the most forensic and eloquence of brilliant legal submissions can be a substitute for evidence that was not led. This is so because in law facts are the fountain or arrow head of the law. See Neka B. Manufacturing Co. Ltd V. African Continental Bank Ltd (2004) All FWLR (Pt. 198) 1175 @ P. 1191. See also Thompson V. Arowolo (2003) 7 NWLR (Pt. 818) 163, Kimdey V. Military Governor, Gongola State (1988) 2 NWLR (Pt. 77) 473.
My Lords, it is true that in law a public body, such as the Respondent, Standard Organization of Nigeria, which is invested with statutory powers must take care not to exceed or abuse its powers. Thus, in the exercise of its powers and or duty, it must keep within the limits of the authority conferred and or committed to it. It must also act in good faith, reasonably and responsibly too. It must refrain or desist from and or resist the temptation to exercise powers which had not been given to it by law. Indeed, no one can give out what he does not have. This principle applies with equal force to a corporation. It cannot exercise a power it does not have. See Mayor of Westminster V. London & North – Western – Railway Co. (1905) AC 426 @ p. 430 per Lord Macnaghten.
I have asked myself whether there are any averments and supported evidence from the Appellant on the basis of which all the finer legal submissions were made by the learned counsel for the Appellant on the allegations of bad faith and acting ultra vires as made against the Respondent by the Appellant. In law, as I had stated earlier, facts are, and ought to be, the arrow head of the law. Thus, submissions are not meant to be plucked off the air and made without any supporting facts in the pleadings and evidence of the parties, in order not to be a mere treatise fit for the classroom.
What then is the evidence of bad faith as alleged against the Respondent by the Appellant as can be seen in the evidence of PW1, both oral and documentary as can be seen in the Record of Appeal? Now, the Appellant had relied on the grant of approval to three other companies by the Respondent to import unfortified sugar into the Country whilst refusing to grant the same approval to the Appellant as evidence or element of bad faith. I have taken time to consider the evidence and scrutinized all the relevant documents relied upon by the parties, and I am unbale to come to the finding that this evidence is a proof of bad faith against the Respondent. I cannot see how it was demonstrated to amount to bad faith merely because approval was granted to some other companies but withheld from the Appellant. There was no particulars as to what qualified those other companies for this Court to have an informed analysis and review to arrive at the finding, as sought by the Appellant, that the grant of approval to some other companies rendered the refusal of granting of approval to the Appellant as an act of bad faith. Furthermore, here is the same Appellant who had earlier averred and vehemently contended that the Respondent does not have the power to grant any approval turning summersault now to allege that the same Respondent had acted in bad faith for granting approval to some other companies to import unfortified sugar.
So, what is the Appellant really alleging and or contending? Is it saying that the Respondent has no power to grant approval or that the grant of approval to some other companies to the exclusion of the Appellant amounted to bad faith, and implying that the Respondent indeed has the power to grant the approval? Either way, it is my finding that the Appellant failed woefully to make out any case of bad faith against the Respondent as was required of it to render the Public Officers Protection Act 2004 inapplicable on grounds of bad faith as alleged but was not proved by the Appellant against the Respondent, and I do hold.
My Lords, let me consider whether or not the Appellant proved its allegation that the Respondent, in refusing to grant the requested approval to the Appellant acted outside the scope and limit of its legal power and or duty so as to render the Public Officers Protection Act 2004 inapplicable to the claims of the Appellant against the Respondent.
Now, here is a party, the Appellant, alleging ultra vires the power of the Respondent who had even by its letter of 5/12/2005 set in motion the application to the Respondent requesting for approval and or clearance to import unfortified sugar from Germany for supply to its customer. It is the same party now alleging and contending vehemently that the Respondent to whom it had requested for approval to import unfortified sugar, and had even conceded that had granted approval to three other companies to import unfortified sugar, now no longer has the power to grant the approval it sought from the Respondent, and therefore, the Respondent had acted outside its scope and limit of power in refusing to grant approval to the Appellant to import unfortified sugar.
Honestly, in a situation in which a party had refrained from exercising a power, and it is alleged that it even had not the power in the first place to exercise, how can it be alleged that such a party had acted ultra vires for refraining from exercising a power which the accuser says it does not have? It is either a party has the power but fails to exercise it according to the enabling law or had acted in excess of its power under the enabling law that I can understand an allegation of the sort being made against the Respondent by the Appellant.
The Appellant cannot in one breadth say that the Respondent had no power to grant approval for the importation of unfortified sugar which according to the Appellant is within the exclusive unction of NAFDAC, and then turn round in another breadth to allege that the same Respondent, who had not the power and had also refrained from granting any approval, a power it allegedly does not possess, had acted ultra vires its powers. I find the Appellant, from its own showing and going by its several summersaults on virtually all the crucial issues in contention, as a party so inconsistent and therefore, not worthy of any of reliability. It spoke from both sides of the mouth with so much ease and at an alarming frequency that I am unable to take any of its contentions with any seriousness except perhaps with a pinch of salt.
On the other hand, consistent with is averments, the Respondent led evidence to show that the restriction on importation of unfortified sugar had been in place since January 2005, long before the Appellant’s application made to the Respondent on 5/12/2005, and was therefore caught by the restriction and further that the approvals or license to three other companies complained of by the Appellant were granted by the Federal Government and or by the Ministry of Industry on the recommendation of the Presidential Technical Committee on Sugar importation and fortification with Vitamin A. See paragraphs 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, at pages 2019 – 216 of the Record of Appeal. See also paragraphs 9, 10 and 11 of the 1st Amended Statement of Defence at page 156 of the Record of Appeal.
But I can see Exhibit PW1K, tendered by the Appellant and said to have emanated from NAFDAC, a non-party to the Appellant’s Suit and which was also not called to testify and be subjected to cross-examination of the contents and the circumstances leading to the issuance of the said Exhibit PW1K. to the effect that the commencement date for the Food Fortification with Vitamin A Regulations, 2005 is 24/10/2006. At any rate even if the restrictions were to have commenced on 24/10/2006, there would still be neither any act of bad faith nor of acting outside the Respondent’s scope and authority for refraining from doing what the Appellant vehemently contends it had not the power to do. Indeed, the Appellant ought to have taken his request to the authority it considered the appropriate authority, NAFDAC!
There was no allegation or even suggestion that the Respondent either makes policy or influences the making of policy or has the power to determine any policy for the Federal Government of Nigeria as to take responsibility for the imposing and lifting of restrictions of items that can be imported into Nigeria. Rather, evidence abounds as to the scope and limits of the duty of the Respondent by virtue of its enabling Act, the Standard Organization of Nigeria Act. In the letter written by the Respondent and dated 21/2/2006, it was stated inter alia thus:
“It is to be noted that SON has not received any directive from Federal Government as to the review of this standard to exclude vitamin A fortification requirement, it is also to be noted that the step taken by Mr. President to alleviate the problem of the industry was handled by the Federal Ministry of Industry through the AFBTE.”
Now, by Section 2 (1) of the Standards Organizations of Nigeria Act, Cap. S. 9 Laws of the Federation of Nigeria 2004, it is provided as follows:
“Subject to the provisions of this act, the Minister may give general or special directives to the Organization and it shall be the duty of the organization to comply with and give effect to any such directives.”
See also Section 4 (c) of Standard Organization of Nigeria Act which provides that the functions of the Council of the Respondent shall be: “to provide the necessary measures for quality control of raw materials and products in conformity with the standard specification,” while Section 5 (b) (f) of the Standard Organization of Nigeria Act further provides that one of the functions that the Respondent Organization shall carry out is – b: “To undertake investigations as necessary into the quality of facilities, materials and products in Nigeria and establish a quality assurance system including certification of factories, products and laboratories.”
It follows therefore, from the above provision, which is very clear and unambiguous, that the Minister of Industries has the powers to give general or special directives to the Respondent and such directives being awful must be obeyed and the report of such compliance given to the Minister whenever he so requires. See Section 2 (2) and 5 (1), (d), (e),(f), (i), (l) and (n) of the Standards Organizations of Nigeria Act, Cap. Section 9 Laws of the Federation of Nigeria 2004.
My Lords, what is restricted and when it is lifted are purely function of the policy of the Federal Government of the day and not the responsibility of the Respondent, whose duty is to ensure compliance with the policies of the Federal Government of the day as may be directed to it by its supervisory Minister in the Ministry of Industry. Thus, whether restriction was imposed and when it is imposed and or lifted is simply nothing more than a shift or change in policy of the Government of the day occasioned by the needs and exigencies of the time. In my view one Government or even the same Government when it comes to policies and policy decisions is not fettered by law to change its policy based on the goals it sets out to achieve for the good governance of the Country. In Shepherd Masimba Kambadzi (Previously referred to as SK (Zimbabwe)(FC) V. Secretary of State for the Home Department (2011) LPELR – 17790 (UKSC) at 60 – 62, Lord Hope delivering the leading judgment of the Supreme Court of the United Kingdom had opined thus:
“The principle that policy must be consistently applied is not in doubt and that the Courts now expect government departments to honor their statement of policy. Policy is not law so it may be departed from if good reason can be shown.”
In her contribution to the leading judgment at pp. 85 – 88, Lady Hale had this to say on government policies thus:
“It is not statute, but the common law, which imposes upon the Secretary of State the duty to comply with his own stated policy, unless he has good reason to depart from it in the particular case at the particular time.”
See also AG of Abia State & Ors V. AG of Federation (2003) LPELR – 610 (SC), Wade and Forsyth, Administrative Law 10th Edition (2009) at pp. 315.
Now, the Ministry of Industry, unarguably the supervisory Ministry of the Respondent, had by its letter dated 11/9/2006, confirmed the powers of the Respondent in its communication to the Appellant that the Respondent was acting on the directive of the Minister of Industries. I hold therefore, without at this stage going into the issue whether or not the action of the Respondent was valid or not, that the Respondent was empowered generally by the applicable laws, regulations made thereunder and by the directives of the Minister of Industry, to ensure compliance with standards and/or to comply with the Minister’s directives to carry out official duties as may be directed by the Minister. I do not see or find how the carrying out of this legal duty did or could have amounted to an act of bad faith as would exclude or render the Public Officers Protection Act 2004 inapplicable to deprive and or deny the Respondent of the protection afforded to public officers by Section 2(a) of the Public Officers Protection Act 2004 as vehemently but erroneously contended by the Appellant.
Now, having found and held firmly that the Respondent neither acted in bad faith nor acted outside the scope and limits of its powers under its enabling statute, regulations and directives from its supervisory Ministry, when did the Respondent’s act of refusal to import unfortified sugar being complained of by the Appellant occurred? See paragraphs 14 and 15 of the Appellant’s Amended Statement of Claim showing clearly that the cause of action arose on 28/12/2005 when the Respondent’s letter of refusal was written or on 21/1/2006, when the Respondent’s letter of refusal was received by the Appellant to the effect that the importation of sugar unfortified with Vitamin A had been restricted since January, 2005. See also that is, Exhibit DW1I.
Yet, the Appellant who knew and does not deny that the Respondent is a public officer and that action against it in a Court of law must be commenced within three months from the date of the accrual of the cause of action neglected, failed and or refused to do so within the three months limitation period until almost two years after to commence its action against the Respondent on 2/4/2008, and which action in the absence of any bad faith and or ultra vires acts of the Respondent was stale and dead on arrival. It’s a ‘DOD’ and no amount of legal brilliance or sophistry unsupported by the hard facts of the case can resurrect the Appellant’s cause of action which had become bare and unenforceable in a Court to law. I so firmly hold. See the Appellant’s letter dated 26/1/2006, as averred to in paragraph 17 of the Appellant’s Amended Statement of Claim and deposed to in paragraph 19 of the evidence in chief of PW1 threatening to sue the Respondent for the act, neglect or default complained of and stating inert alai thus:
“Please note if the clearance is not given latest 31/1/06, we shall proceed to take necessary legal action to claim damages.”
I find that attempt to bring it NAFDAC into the picture by all means including without any supporting averments and evidence as unavailing of the Appellant. From the contents of the LPO dated 1/11/2005 from Sarah Food Limited to the Appellant, it is clear that the importation of unfortified sugar sought by the Appellant was as raw material and not as finished food product as it was stated to be required for Biscuit, Sweet etc, which confirms that the unfortified sugar needed by Sara Foods Limited which the Appellant sought to import from Germany was as raw material for further manufacturing processes as was clearly testified to by the PW1.
I therefore find the spirited but clearly futile attempt at christening of the sugar sought to be imported as food, merely by force of brilliant legal submissions unsupported both by the pleadings of the Appellant and evidence of the PW1, as mere fictional creations of the Appellant intended merely to bring in NAFDAC as the appropriate authority in place of the Respondent, to whom the Appellant, had of its volition and without any prompting from the Respondent, had applied to for approval. It is not borne out by the case pleaded and sought to be proved by the Appellant before the lower Court, and all such fictional creations ought to go to no issue at all, and I do hold. In law both the parties, as well as the Courts, are bound by the pleadings and issues joined by the parties. See Fagbenro V. Arobadi (2006) 7 NWLR (Pt. 978) 172 at pp. 194 – 195.
In law, the issue of limitation of action is a now threshold question of jurisdictional competence and can even be raised at any stage and even suo motu by the Court.
Thus, once it is found that an action had been commenced outside the limitation period prescribed by law, such an action is said to be statute bared, stale and thus, dead on arrival. It leaves the cause of action of such a Claimant bare and unenforceable in a Court of law. This is to obviate the need for Defendant to grapple with claims which have become stale and for which material documents and other relevant evidence might have been lost. See Section 2(a) of the Public Officers Protection Act 2004. See also Nwadiaro V. Shell Development Coy. Ltd (1990) 5 NWLR (Pt. 150) 322 at pp. 337 – 339, Amata V. Omofuma (1997) 2 NWLR (PT. 485) P. 93 at p. 113, Obiefuna V. Okoye (1961) 1 SCNLR 144, Nwadiaro V. Shell Development Coy. Ltd (1990) 5 NWLR (Pt. 150) 322 at pp. 337 – 338, P. N. Udoh Trading Co. Ltd V. Abere (2001) 11 NWLR (723) 114, Angadi V. PDP (2018) 15 NWLR (Pt. 1641) 1.
The issues of limitation of action, being a threshold issue of jurisdiction, is therefore, even too important to be circumscribed and or limited to the pleadings of the parties. Indeed, in law, the question of limitation of action is a threshold issue which affects the jurisdiction of the Court and therefore, its application cannot be limited to specific pleadings and or the rules of Court. It can even be raised viva voce, since no Court has the competence to adjudicate the merit of a cause or matter which is incompetent before it no matter its zeal to render substantial justice on the merit. Indeed, jurisdiction is the epicentre and soul of adjudication. See Ajayi V. Adebiyi (2013) 3 WRN 1. See also P. N. Udoh Trading Co. Ltd V. Abere (2001) LPELR – 2893 (SC), Sulgrave Holdings Inc & Ors V. FGN & Ors (2012) LPELR – 15520 (SC), Egbe V. Adefarasin (No. 1) (1985) 1 NWLR (Pt. 3) 540.
I had earlier set out the facts and circumstances of the time of the accrual of the Appellant’s cause of action as well as the date of commencement of the Appellant’s action against the Respondent. As a recap, for the purpose of clarity and proper focus, the Appellant’s Suit was filed on 2/4/2008, whilst its cause of action arose on 26/1/2006, when it accepted that it received the Respondent’s response to its letter of 5/12/2005. In its letter, the Respondent refused to grant the approval sought by the Appellant to import unfortified sugar from Germany into the Country. By law, the Appellant had three months from the date of 26/1/2006 to validly commence an action in a Court to law to enforce its cause of action against the Respondent, a public officer within the meaning of the Public Officers Protection Act. See Ibrahim V. Judicial Service Committee Kaduna State (1998) 12 SCNJ 255, Offoboche V. Ogoja Local Government & Anor (2001) 16 NWLR (Pt. 739) 458.
My Lords, the law considers all actions commenced after the limitation period as stale and dead, and thus merely awaits the summons from on high on the resurrection day but until then such actions remain stale and unenforceable in a Court of law. The rationale for this position of the law was explained in greater details by this Court in Ikosi Industries Limited V. Lagos State Government & Ors (2017) LPELR – 41867(CA) per Sir Biobele Abraham Georgewill JCA, inter alia thus:
“…The rationale for limitation of time for the commencement of action would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost or unavailability of materials evidence or death or unavailability of vital key witnesses, due to no fault of his, necessary for his defense which would have otherwise been available if the claims were commenced timely within the period as allowed under the relevant applicable limitation law.”
In the circumstances therefore, the Appellant’s cause of action which arose on 26/1/2006 was undoubtedly and irredeemably statute barred as at 2/4/2008 when the Appellant’s Suit was filed before the lower Court by virtue of and the operation of the provisions of Section 2 (a) of the Public Officers Protection Act 2004, which prescribes a limitation period of three months for the competent commencement of the claim of the Appellant in a Court of law.
In the light of this findings therefore, I hold that the Writ of Summons filed by the Appellant on 2/4/2008 was clearly statute barred. I find that the claim of the Appellant at the time it was filed against the Respondent suffered a ‘still birth’ and had thus become stale and therefore, in law incapable of any enforcement by an action in a Court of law. See Ize – Iyamu Osagie Andrew V. Kadiri Sunday Oshoakpemhe & Ors (2021) LPELR – 53228 (CA) per Sir Biobele Abraham Georgewill JCA. See also Hung V. E.C. Investment C. Nig. Ltd. (2016) LPELR – 42125 (CA). See also Onokomma V. Union Bank of Nigeria Plc (2017) LPELR – 42748 (CA).
I therefore resolve issue one partly in favor of the Appellant against the Respondent in relation to the failure of the lower Court to consider and pronounce on the issues of bad faith and ultra vires action alleged against the Respondent by the Appellant, but allegations I have carefully examined and considered and found to be baseless and unproved. However, having found that the Appellant’s Suit was incompetent. I hold that it is liable to be dismissed.
I now ask myself, was there really any further duty on the lower Court to have considered the merit or otherwise of the Appellant’s Suit when it came to the finding that the Appellant’s Suit was statute barred? This is the crux of issue two as nominated by the Appellant in its brief.
My Lords, I am aware and I have already alluded to it, that trial Court particularly are enjoined, or should I say, admonished, to consider all issues submitted by the parties before them for adjudication and should consider the merit of the cases of the parties even where it finds that the Suit was incompetent. Yet, this is not a rule without its own exception as it is not cast in stone. A lot would, in my view, depend on the facts and circumstances of the given case, and more particularly the nature of the incompetence found to have afflicted the Suit, as to whether it is mere irregularity or one which is irredeemable and goes to the root of the claims.
In the former case, I subscribe to the idea that the trial Court must keep its finding of irregularity one side, and proceed to consider the merit of the substantive claims and make its finding thereon before proceeding to still strike out the suit if the irregularity was not cured by the Claimant. However, it is not so with the latter case, in which the trial Court, in my view and I so hold, has not the luxury of the option of venturing to consider the merit or otherwise of the substantive claims when the entire Suit is found to be incurably defective. One of such circumstances that could render a Suit incurably defective and thus, liable to be dismissed, without any consideration of the merit or otherwise of the substantive Claims, is when a Suit is statute barred as in the instant case, wherein it has been found that the Appellant’s Suit was statute barred by reason of the provisions of Section 2(a) of the Public Officers Protection Act 2004, which had irredeemably rendered both the lower Curt and this Court without the requisite jurisdiction to hear and determine the Appellant’s Suit on the merit. In law, in the absence of jurisdiction, there can be no competence in the Appellant’s Suit to be heard and determined on the merit, since jurisdiction is the life blood of every cause or action. Thus, where the requisite jurisdiction is found to be lacking that is indeed the end of the matter. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court per Kayode Eso JSC.,(God bless his soul) had put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain.”
See also Madukolu V. Nkemdilim (1962) 2 All NLR 581, P. E. Ltd. V. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 693, Petro Jessica Ent. Ltd V. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 132.
Now, having arrived at the inescapable conclusion that the Appellant’s Suit filed before the lower Court was filed out of time and thus, statute barred, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ reared up its head at once to play on the conscience of the Court, should we jettison and discountenance technicality bordering on incompetence of the Appellant’s Suit and consider the other issues in this appeal on the merit or should we give effect to the settled principle of law that nothing worth anything can ever come out from an incompetent Suit? In African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 at p. 365 – 366, this Court had cause to consider the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had per Sir Biobele Abraham Georgewill JCA, opined inter alia thus:
“My Lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled.”
I do not think I can improve on the statement of law I made above and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with the Appellant’s Suit filed before the lower Court on which was statute barred. There was therefore, in my finding and I so hold, no any further jurisdiction in the lower Court, as well as this Court, to proceed to consider the merit of the substantive claims of the Appellant against the Respondent. Accordingly, I hereby resolve issue two against the Appellant in favor of the Respondent. See Dr. Daniel Amu & Anor V. K. S. Okeaya – Inneh Esq. SAN & Anor (2021) LPELR – 55660(CA) per Sir Biobele Abraham Georgewill JCA, Bell View Airlines Limited V. Carter Harris (Proprietary) Limited (2016) LPELR – 40989 (CA), per Sir Biobele Abraham Georgewill JCA, Elephant Group Plc. V. National Security Adviser & Anor (2018) LPELR – 45528 (CA), per Sir Biobele Abraham Georgewill JCA, Global Fleet Oil & Gas Ltd V. Chukwurah I. Ifeanyi (2021) LPELR – 54561 (CA), per Sir Biobele Abraham Georgewill JCA.
In the light of all I have found and stated above, issue one for determination is partly in favor of the Appellant against the Respondent, in that the lower Court erred gravely in law for not considering the issues canvassed before it by the Appellant, whilst issue two for determination is resolved against the Appellant in favor of the Respondent. However, having invoked the provisions of Section of 15 of the Court of Appeal Act 2004, and having fully considered the issue of the competence of the Appellant’s Suit, in relation to the provision of Section 2 (a) of the Public Officers Protection Act 2004, the Appellant’s Suit is grossly and irredeemably incompetent having been Statute barred. In law, once a Suit is found to be statute barred the proper order to make is one of dismissal. See NPA Plc. V. Lotus Plastics Ltd. & Anor (2005) 19 NWLR (Pt. 959) 258.
Consequently, the Appellant’s Suit is hereby dismissed.
ISSUE THREE
My Lords, I have duly considered the pleadings and evidence led by the parties as in the Record of Appeal. I have also taken time to review the submissions of the parties under issues three. I have already held under issue one that the Appellant’s Suit was incompetent and dismissed same. In law, jurisdiction is the life wire and the very soul of every cause or matter before the Courts. A Court is therefore competent only and only when all the conditions precedent to the exercise of the Court’s jurisdiction have been fulfilled. See Madukolu V. Nkemdilim (1062) All NLR 581. See also Petro Jessica Ltd. V. Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) 693, Onuorah V. Kaduna PRC Ltd (2005) All FWLR (Pt. 256) 1.
Having therefore firmly held that the Appellant’s Suit was grossly and irredeemably incompetent and thereby robbed the lower Court of its competence and jurisdiction, I consider issues three for determination dealing with the merit or otherwise of the claims of the Appellant as merely academic. Indeed, the Courts are loath to and do not saddle themselves with the consideration of matters which had become merely academic and therefore, of no utilitarian value to either of the parties. To embark on such exercise of jurisdiction of the Courts over matters which are no longer live would clearly amount to nothing but sheer waste of the very precious and, if I may say scarce, judicial time. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853. See also Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 at pp. 254 – 255, Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 at P. 1497.
Thus, for a Court to continue to exercise its jurisdiction over matters pending before it, the matters must have in them issues which remain live for determination and of utilitarian value to one or more of the parties. See Uba Plc V. Dana Drugs Ltd (2018) LPELR – 44103 (CA), per Sir Biobele Abraham Georgewill JCA. See also Action Congress v INEC (2007) LPELR – 8988 (CA), Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 at P. 1497, Adeogun V. Fashogbon (2008) 17 NWLR (Part 1115) 149 at P. 180.
Indeed, issue three for determination has become spent and I refuse to be drawn into the determination of an issue which are no longer live and with no utilitarian value except for its academic illumination and entertainment, which a consideration of issue three for determination would entail. Consequently, issue three for determination is hereby discountenanced. In Global Fleet Oil & Gas Ltd V. Allen (2021) LPELR – 54583(CA), this Court had per Sir Biobele Abraham Georgewill JCA, had cause to reiterate inter alia thus:
“Courts are loath to spend their precious and scarce judicial time considering and resolving merely academic questions in its judgment, which are better left for scholars in the Faculties of Law in our Universities to grapple with. An issue becomes merely academic once it is no longer of any utilitarian value to the determination of the appeal one way or the other.”
On the whole therefore, having resolved issue one for determination partly in favor of the Appellant against the Respondent but having resolved issue two for determination against the Appellant in favor of the Respondent, and having discountenanced issue three for determination, which cannot be determined on the merit on the face of the gross incompetence of the Appellant’s Suit, I hold firmly that this appeal succeeds in part and ought to be allowed in part. Consequently, this appeal is hereby allowed in part.
In the result, the judgment of the Federal High Court, Abuja, Coram: B.F.M. Nyako J, in Suit No. FHC/ABJ/CS/204/2008: Sunshine Oil and Chemical Development Company Limited V. Standard Organisation of Nigeria delivered on 10/7/2020, in which the Appellant’s Suit was dismissed, is hereby set aside.
In its stead, the Appellant’s Suit No. FHC/ABJ/CS/204/2008: Sunshine Oil and Chemical Development Company Limited V. Standard Organization of Nigeria is hereby dismissed for being Statute Barred.
I make no order as to cost.
STEPHEN JONAH ADAH, J.C.A.: I was opportuned to read in draft the judgment just delivered by my learned brother, Sir, Biobele Abraham Georgewill, JCA.
I agree with the reasoning and the conclusion for which I also do subscribe and hold that the appeal be allowed in part.
In our laws, Statute of Limitation normally sets down time for action to be taken. The nature of the limitation is a function of the statute creating it. In the instant case, the Statute of Limitation called in is the Public Officers Protection Act, Section 2(A) thereof. Authorities abound that the protection offered by that law can be punctured where the respondent’s act was orchestrated or induced by malice against the plaintiff. Where therefore, a party raises the point that there was malice, necessity is laid upon the trial Court to look into the allegation and have it determined one way or the other. The attitude of the trial Court in ignoring that issue of malice is a breach of the right of the party to fair hearing. This is apt because in a plethora of authorities, the defence under the Public Officers Protection Act, can only avail Public Officers, whose act in the course of the execution of their duty is without malice. See Rahamaniya United Nigeria Ltd v. Minister of the FCT (2021) LPELR-55633 (SC) and the case of CIL Risk & Asset Management Ltd v. Ekiti State Govt. & Ors (2020) LPELR – 49565 (SC), where the Supreme Court, per Peter-Odili, JSC, held:
“…In the case of Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 622. 589. Paras E – G, wherein this Court 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… Where a public officer fails to act in good faith, or acts in abuse of office or maliciously, or with no semblance of legal justification, he will not be protected by the provisions of Section 2 (a) of the Public Officers Protection Act as to three months time limit for the commencement of action against him.” (Underlining supplied for Emphasis). See also Offoboche v. Ogoja Local Government (2001) 16 NWLR (Pt. 739) 458 at 485. In Offoboche v. Ogoja Local Government (supra) at P. 485, this Court held as follows: – “Abuse of office that will deprive a party who would otherwise have been entitled to the protection of Section 2 (a) of the Public Officers (Protection) Act is use of power to achieve and other than those for which power was granted, for example, for personal gain or to show undue favour to another or wreak vengeance on an opponent.” (Underlining supplied for Emphasis). See also the case of Muhammed v. A.B.U. Zaria (2014) 7 NWLR (Pt. 1407) 500 at 534, paras A – H, it was held thus:
“The Public Officers Protection Act 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. The act 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 statutory or other legal authority. He has not been bona fide in 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 the Act never could apply to such a case.
Thus, abuse of office and bad faith are factory that can deprive a party of the protection of Section 2 (a) of the Public Officers (Protection) Act he would otherwise have been entitled to. The protection enjoyed by public officers under the Public Officers Protection Law or Act is not automatic. The law does not automatically protect any public officer who had abused his position, therefore, a Court should not immediately dismiss an action on the ground only that the action commenced against a public officer was filed outside three months from the date of accrual of the cause of action. The Court has to be satisfied that the act executed by the public officers was not done in bad faith or did not amount to abuse of office, that is to say, using the power to achieve personal gain, to show undue favour to another or to wreak vengeance on an opponent, or was exercised in breach of his statutory or constitutional duties, etc.”
With this lucid position of the law, the trial Court ought to have taken time to look into the allegation of malice.
With this position, I am in firm agreement with the effort of my learned brother in the lead judgment to address the issue and ultimately reached the conclusion that the Public Officers Protection Act is applicable and that it offers protection to the Respondent. I also concur with the findings that the case is statute barred. It is with this and the elaborate findings of my learned brother in the lead judgment that I also hold that the appeal is partly allowed. The case is statute barred and the trial Court had no jurisdiction to entertain it.
The case at the trial Court being statute barred is hereby dismissed. I abide by the consequential orders made in the lead judgment of my learned brother.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the judgment delivered by my learned brother Biobele Abraham Georgewill, JCA.
I am in agreement with the profound, rounded reasonings expressed therein and the conclusions thereby reached. Nothing can be significantly added further. I adopt those reasonings as mine by which I too hold, with respects, that the lower Court proceeded in error by rushing to consider and resolve the Respondent’s plea of statute bar in total isolation of the Appellant’s exclusionary pleas of bad faith and ultravires which are well settled exceptions to the strict application of the provisions of Section 2(a) of the Public Officers Protection Act; regardless of it views on the potency or otherwise of those pleas. In the manner raised and construed, the lower Court was duty bound to pronounce on those pleas with expressed reasons for their irrelevance or inapplicability. See CIL Risk & Asset Management Ltd vs. Ekiti State Government & Ors (2020) LPELR 49565 (SC).
In the circumstances, my noble lord in the leading judgment deservedly invoked the provisions of Section 15 of the Court of Appeal Act to step into the shoes of the lower Court, as it were, to do what the lower Court ought to have done, the result of which are the conclusions, which I agree with, that the Appellant’s suit filed before the lower Court is hereby dismissed for being statute barred and the judgment on it set aside. I so order.
Appearances:
Tunde Ahmed Adejumo, Esq, with him, E. J. Longe, Esq. For Appellant(s)
Ademola Folarin, Esq. For Respondent(s)
