UMAR v. WUKARI TRADITIONAL COUNCIL & ORS
(2020)LCN/15730(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, October 14, 2020
CA/YL/34/2018
Before Our Lordships:
Chidi NwaomaUwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
PRINCE JOHN KEGAR DANJUMA UMAR (Suing For Himself And On Behalf Of Matarfada District Ruling Family) APPELANT(S)
And
1) WUKARI TRADITIONAL COUNCIL 2) HRH DR. SHEKARAU ANGYU MASA ABI, KUVYO II (THE AKU UKA OF WUKARI) 3) MR. BALA GANI (VILLAGE HEAD OF NWUKO) 4) THE EXECUTIVE GOVERNOR OF TARABA STATE 5) ATTORNEY GENERAL OF TARABA STATE RESPONDENT(S)
RATIO:
THE POSITION OF THE LAW AT THE INTERLOCUTORY STAGE OF THE PROCEEDINGS
In the case of Konduga L.G.C. VS. N.U.R.T.W & ORS (2013) LPELR 23355 (CA) 16 – 17, Paragraphs B – E. This Honourable Court per Omoleye, JCA, eloquently stated the position of the law thus:
“It is settled law that Courts do not decide the merits of a case at the interlocutory stage of the proceedings.
This Court in the case of Dehinsilu V. Mondec Pharmacy Ltd. (2008) LPELR- 3547, held per Lokulo-Sodope, J.C.A., that:
Surely, the law is immutable that a Court in deciding an Interlocutory application should not delve into the merit of the case or pre-determine the issues to be tried at the hearing of the caseSee MRS GLORIA NYA v. MADAM EME BASSEY EDEM (2005) ALL FWLR (Pt. 242) 576. ABDULLAHI MAHMUD BAYERO, J.C.A.
AN APPEAL MUST ALWAYS BE ON THE RATIO DECIDENDI
According to counsel, the law is trite that an Appeal must always be on the ratio decidendi of a case but not on the obiter dictum – D.S. Nyapuri v. Alhaji Maijama’aMairiga& 1 Or, Unreported Appeal NO: CA/YL/125/2015, P. 14 Paragraphs 21-23. That for this reason, ground one (1) of the grounds of appeal in this case is incompetent having been based on obiter dictum and the Appellant’s issue 1 distilled from the said grounds 1 and 3, and argued together should be struck out from the Notice of Appeal and he urged the Court to so hold -Tiamiyu v. Olaogun (2008) 17 NWLR (Pt.1115) 66 at 92. He urged the Court to resolve issue 1 in favour of the 1st, 2nd and 3rd Respondents. ABDULLAHI MAHMUD BAYERO, J.C.A.
DECIDING THE SUBSTANTIVE MATTER AT THE INTERLOCUTORY STAGE
Most humbly, it was and is still my view that a trial Court has the duty to carefully ensure that its ruling on an interlocutory matter does not render nugatory the substantive suit. It has been stated and restated, that indeed lower Courts should not, in a ruling in an interlocutory application, make orders which have the effect of pre-judging or pre-emptying the issues for adjudication in the substantive suit before trying the suit. Where the Courts err and decide the substantive matter at the interlocutory stage, the penalty of an appellate Court for such an error is, a setting aside of the outcome of the determination. In which case, such improper determination by the erring lower Court would be tantamount to a futile and wasted exercise. On this legal principle, the law reports are replete with a plethora of authorities: see but to mention a very few, the case of: (1) Ojukwu v. YarAdua (2009) 12 NWLR (Pt. 1154) p. 50 and (2) Shinning Star Nig., Ltd. V. Ask Steel Nig. Ltd. (2011) 4 LPELR 3051.”The issue for determination is therefore resolved in favour of the Appellant and against the Respondents. The Appeal is meritorious and is hereby allowed. ABDULLAHI MAHMUD BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the Taraba State High Court delivered on 31/01/2018 by A. B. Abbare J., in Suit No. TRSW/28/2017. The Appellant who is a prince and a family member of Matarfada District, Wukari Local Government Area of Taraba State was the Plaintiff at the lower Court, while the Respondents were the Defendants. After the demise of Gambo Sule the District head of Matarfada on 7th March, 2000, the 1st and 2nd Respondents on 8th June, 2017 appointed the 3rd Respondent as acting District head of Matarfada District. Aggrieved with the failure of the Respondents to appoint a substantive District head for Matarfada District, the Appellant commenced Suit No. TRSW/28/2017 by way of writ of summons filed before the lower Court on 29/09/2017 against the Respondents claiming for the following:-
1) A Declaration that the failure and continued refusal by the 1st, 2nd and 4th Defendants to appoint District Head for Matarfada District of Wukari Local Government Area, Taraba State to replace late Chief Mallam Gambo Sule in accordance with the provision of Section 3 of the Chiefs(Appointment and Deposition) Law, Cap 26 Laws of Taraba State is unlawful, wrongful and oppressive.
2) A Declaration that the appointment of the 3rd Defendant by the 1st and 2nd Defendant as the acting District Head of Matarfada District of Wukari Local Government Area, Taraba State, is illegal and contrary to the provision of Section 3 (1) of the Chiefs (Appointment and Deposition) Law, Cap. 26 Laws of Taraba State.
3) A Declaration that the failure and or refusal of the 1st and 2nd Defendant to recommend Capt. Habu Umar (Rtd), selected and endorsed by the Matarfada ruling family, for the approval and appointment by the 4th Defendant as the District Head of Matarfada District as required by Section 3 (1) of the Chiefs (Appointment and Deposition) Law, Cap. 26 Laws of Taraba State is wrongful.
4) A Declaration that Capt. Habu Umar (Rtd.) who has been selected and endorsed by the Ruling family and the elders of Matarfada District for appointment by the 4th Defendant as District Head of Matarfada District is entitled to be so appointed.
5) A Declaration that the 3rd Defendant not being a male descendant of the previous District Head of Matarfadais not qualified to be a District Head of Matarfada.
6) An Order compelling the 4th and 5th Defendants to forthwith appoint Capt. Habu Umar (Rtd) as the District Head of Matarfada District of Wukari Local Government Area, Taraba State.
7) An Order of injunction restraining the 3rd Defendant from parading himself as the acting District Head of Matarfada District.
8) Sum of Five Hundred Thousand Naira (N500, 000.00) only as general damages.
9) Cost of litigation.
The 1st, 2nd and 3rd Respondents filed a Notice of Preliminary Objection challenging the jurisdiction of the trial Court on the ground that the case was Statute Barred. The lower Court upheld the objection and dismissed the case of the Appellant. Dissatisfied with the lower Court’s ruling, the Appellant filed this Appeal by a Notice of Appeal filed on 9/02/2018. With the leave of this Court, the amended Notice of Appeal was filed on 25/05/2018 and was deemed properly filed and served on 4/10/2018. The record of Appeal was compiled and transmitted to this Court on 9/03/2018. Supplementary record was filed on 7/04/2019 but deemed as properly compiled and transmitted on 17/09/2019.Appellant’s Brief was filed on 23/03/2018 but was amended with leave of Court granted on 21/11/2018. The amended Brief was filed same day. The 1st, 2nd and 3rd Respondents Brief of argument was filed on 5/11/2018 but deemed properly filed and served on 21/11/2018. The 4th and 5th Respondents Brief of argument was filed on 21/11/2018 and deemed the same day. The Appellant’s reply Brief was filed on 19/02/2019 but deemed properly filed and served on 7/03/2019.
In the Appellant’s amended brief of argument two issues are formulated for determination thus:
1) Whether the trial Judge was in grave error and acted without jurisdiction when he determined the merit of the Appellant’s case at an interlocutory stage. (Distilled from grounds 1 and 3 of the grounds of appeal).
2) Whether in the circumstances of this case, the trial Judge was in error when he held that the 1st, 2nd and 3rd Respondents are protected by the provision of Section 2(a) of the Public Officers (Protection) Law Cap. 115 Laws of Taraba State 1997. (Distilled from ground 2 of the grounds of Appeal).
On issue one, it was submitted that in determining the preliminary objection, the lower Court went ahead and determine the merit of the substantive case; reference was made to pages 275 to 277 of the printed record. Counsel referred to relief 2 in the claims of the Appellant before the lower Court and submitted that the Court determined the substantive case at interlocutory stage. According to counsel a Court should not determine the substantive matter at an interlocutory stage – Eregbowa & Ors v. Obanor & Ors (2010) LPELR 8964 (CA), Nwadike v. The State (2015) LPELR – 24550 (CA), Miscellaneous Offences Tribunal & Anor v. Okoroafor (2001) LPELR 3190 (SC) and James S.A.N. V. I.N.E.C. (2015) LPELR – 24494 (SC). That where a Court delved into the merit of the substantive case at an interlocutory stage renders the entire proceedings a nullity – Konduga Local Government Council v. N.U.R.T.W. & ORS (2013) LPELR 23355 (CA) and AG Kwara State & Anor v. Lawal (2017) LPELR 42347 (SC). According to counsel, since it was impossible for the trial Judge to have resolved the preliminary objection without expressing his views on the substantive issues, he should have refused the Preliminary Objection and determine the matter on the merit – Konduga Local Government Council V N.U.R.T.W. &Ors (Supra) 17-18 Paragraphs F-C. Counsel urged the Court to resolve issue one in favour of the Appellant.
On issue two, learned counsel referred to Section 2 (a) of the Public Officers (Protection) Law, Cap 115, Laws of Taraba State 1977 and submitted that the provision cannot avail the 1st, 2nd and 3rd Respondents as the Act does not protect a public officer who acted illegally and in breach of the law –Podo v. Gombe State Government &Ors (2016) LPELR 40815 (CA) and University Of Ibadan v. Governor of Kwara State & Ors. (2012) LPELR – 14326 (CA). According to counsel, in this case, the 1st and 2nd Respondents acted outside the provision of Section 3 of the Chiefs (Appointment and Deposition) Law, Laws of Taraba State as they acted outside their statutory powers when they appointed Acting District Head of Matarfada. He referred to the ruling of the lower Court at Page 276 of the printed record. That the 3rd Respondent is not a public officer and the Appellant can challenge his qualification to be appointed a caretaker District head at anytime. That since the act complained of is a continuous wrong, the case cannot be statute barred and that the trial Court was wrong when it dismissed the case of the Appellant. According to counsel, the Respondents did not place any evidence before the trial Court to the effect that the acts complained of has ceased more than three months before the institution of the action. Counsel referred to Kano State House of Assembly v. Umar (Supra) Pages 49-50 Paragraphs F-D and Obot v. Shell Petroleum Development Company Nig. Ltd. (2013) LPELR-207O4 (CA) and submitted that the case of the Appellant is not statute barred.
The 1st, 2nd and 3rd Respondents filed a Notice of Preliminary Objection and incorporated the argument in respect thereof at pages 2 to 6 of their brief. During the hearing of the Appeal, learned counsel applied to withdraw the Preliminary Objection. The Preliminary Objection and the arguments thereto were struck out by the Court. In the same vein, the response of the Appellant to the Preliminary Objection in the Reply Brief as contained at pages 2-11 thereof, were struck out on application by counsel. In their brief of argument, the 1st, 2nd and 3rd Respondents adopted the two issues formulated by the Appellant thus:-
1. Whether from the facts on record, the trial Judge can be said to have determined the merit of the case at the interlocutory stage? (Distilled from grounds 1 and 3 of the grounds of appeal).
2. Whether from the facts and circumstances of this case the learned trial Judge was not right when he dismissed the case of the Plaintiff/Appellant for been Statute Barred in line with Section 2 (a) of the Public Officers (Protection) Law, Cap. 155 Laws of Taraba State, 1997 after upholding the Preliminary Objection of the 1st, 2nd and 3rd Defendants/Respondents? (Distilled from ground 2 of the grounds of appeal).
On issue one, it was submitted that in the argument of the Appellant (Plaintiff) both at the trial Court and before this Court, the Appellant is the one who unnecessarily delved into arguing and attempting to prove the merit of the case at an interlocutory stage by attacking the legality of the appointment of the 3rd Respondent, and prematurely raising the issue of continuous damage in this case. That going by its ruling, the trial Court inthis case did not determine the substantive case at the interlocutory stage. That the trial Court simply dismissed the case of the Appellant for been statute barred and dead having been commenced outside the 3 months mandatory statutory period as required by Section 2 (a) of the Public Officers (Protection) Law, Cap. 155 Laws of Taraba State, 1997.
That the holding of the Court contained on pages 275 and 276 of the record of appeal was neither an issue for determination in the Preliminary Objection nor was it the basis or ratio decidendi for dismissing the action of the Appellant and cannot qualify to form a ground of appeal in this case. That the trial Court dismissed the Appellant’s case not because of its finding in respect of the appointment of the 3rd Respondent by the 2nd Respondent but that the reason for dismissing the case of the Appellant was based on the issue submitted by the 1st, 2nd and 3rd Respondents for determination and adopted by the Appellant that it lacked the jurisdiction to entertain the case of the Appellant because it was statute barred.
According to counsel, the law is trite that an Appeal must always be on the ratio decidendi of a case but not on the obiter dictum – D.S. Nyapuri v. Alhaji Maijama’a Mairiga& 1 Or, Unreported Appeal NO: CA/YL/125/2015, P. 14 Paragraphs 21-23. That for this reason, ground one (1) of the grounds of appeal in this case is incompetent having been based on obiter dictum and the Appellant’s issue 1 distilled from the said grounds 1 and 3, and argued together should be struck out from the Notice of Appeal and he urged the Court to so hold -Tiamiyu v. Olaogun (2008) 17 NWLR (Pt.1115) 66 at 92. He urged the Court to resolve issue 1 in favour of the 1st, 2nd and 3rd Respondents.
On issue two, counsel referred to Section 2(a) of the Public Officers Protection Law Cap 115, Laws of Taraba State and submitted that from the Writ of Summons and the statement of claim the Plaintiff/Appellant commenced his action against the defendants basically pursuant to Section 3(a) of the Chiefs (Appointment and Deposition) Law, Cap 26 of Taraba State to compel the defendants particularly the 1st and 2nd Defendants/Respondents to perform their statutory function or for their failure to perform their public function in the execution of any such law imposed upon them – Pages 3-4 and 14-15 of the printed record.
That in ascertaining whether the plaintiff’s action is actually statue barred, the Court has to consider basically the writ of summons and the statement of claim filed by the plaintiff – A.G. Adamawa State V. A.G. Federation (2015) ALL FWLR (Pt. 797) 597 Paragraphs F-H and Egbe V. Adefarasin (1987) 18 N.S.C.C. (Pt. 2) 9. That the Plaintiff’s purported cause of action against the 1st 2nd and 3rd Respondents, accrued on the 8th day of June, 2017 and the Plaintiff took out his writ of summons against the five Respondents/Defendants on the 29th day of September, 2017 a period well over 3 months. According to counsel, the word ‘person’ under the provision of Section 2(a) of the Public Officers Protection Law which is similar to Section 2(a) of the Act which includes both natural and artificial persons -University of Ilorin v. Adeniran (2007) All FWLR (Pt. 382) 1871 at 1901 Paragraph F, Tajudeen v. Customs, Immigration & Prisons Service Board (2010) ALL FWLR (Pt. 522) 1740 at 1750-1751 and Hassan v. Aliyu (2010) FWLR (Pt. 539) 1007 at 1038 Paragraphs E-F. Counsel further submitted that Section 2(a) of the Public Protection Law does not protect only a public officer but also protects any person with statutory or legal responsibility to perform a duty imposed by law – Attorney-General of Rivers State v. Attorney-General of Bayelsa & Anor. (2013) ALL FWLR (Pt. 699) 1087 at 1103 Paragraphs B-A.
That the Plaintiff/Appellant tacitly admitted that he has commenced his action against the 1st and 2nd Respondents outside the statutory period of 3 months allowed by Section 2(a) of the Public (Protection) Law, Cap 115 Laws of Taraba State and the question is whether the Plaintiff’s/Appellant’s action can be maintained outside the statutory period of 3 months. That the Plaintiff/Appellant’s contention is that the Public Officers Protection Act or Law does not protect a Public Officer who acts illegally or in breach of the law and relied on the authority of University of Ibadan v. Governor of Kwara State & Or (2012) LPELR 14326 (CA) 91-95 Paragraphs A-B. According to counsel that case is distinguishable with the facts of this case as in that case, it was established by evidence that the purported actcarried out by the Respondent was a nullity, ultra vires and that was why the Public Officers Protection Act was held to be inapplicable. That in this case, besides the fact that the Preliminary Objection was raised promptly when evidence was not called, there is nothing in Section 3(1) of the Chiefs Appointment and Deposition Law Cap 26 Laws of Taraba State which prohibits the 1st and 2nd Defendants/Respondents, by any stretch of imagination, from recommending or appointing any person to act as an acting District Head pending his confirmation and/or appointment, or even the appointment of any other person (as the case may be) by the Governor as the substantive District Head – Kasandubu & Anor v. Ultimate Petroleum Ltd (2008) 7 NWLR (pt. 1086) 274 at 284 ratio 14 & 15 and Egbe v. Alhaji (1989) 1 NWLR (Pt. 128) 546 at 585 Paragraph B.
That the import of the above is to the effect that where a defendant as in this case raises in limine a Preliminary Objection on grounds that the action is statue barred, what the trial Court is obliged to consider is whether the action is maintainable i.e. whether it was brought within 3 months or not, and not whether the defendant is liable or that the defendant acted wrongly, unlawfully or maliciously.
On the issue that the injury done to the Appellant is a continuous one and therefore the provision of Section 2(a) of the Public Officers Protection Law is inapplicable, counsel submitted that the authorities of Kano State House of Assembly v. Umar and Obot &Ors v. Shell Petroleum Development Company Nig Ltd (Supra) are inapplicable in this case because there is nothing in the Plaintiff’s/Appellant’s statement of claim that suggests or shows that the alleged injury was a continuous injury or that after the events in paragraph 45 of the plaintiff’s statement of claim occurred which culminated the Plaintiff’s/Appellant’s action, any other thing occurred again that can be said to have been a fresh cause of action. That the 1st, 2nd, 4th and 5th Respondents are Public Officers and are protected by the law in question, while the 3rd Respondent is merely a beneficiary of that protection. He urged the Court to resolve the second issue in favour of the 1st, 2nd and 3rd Respondents and against the Appellant and dismiss the Appeal. The 4th and 5th Respondents also adopted the two issues for determination formulated by the Appellant.
On issue one, it was submitted that the Preliminary Objection granted by the lower Court challenged the jurisdiction of the lower Court, and the lower Court was bound to determine it – Afro Continental Nig. Ltd & Ors v. Co-operative Association of Prof. Inc. (2003) 5 NWLR (pt. 813) 303, Fajimolu v. University of Ilorin (2007) 2 NWLR (pt. 1017) 74, and Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 516.
On the issue raised by the Appellant that the trial Court went into the substantive matter in resolving the Preliminary Objection, it was submitted that the trial Court did determine any of the reliefs claimed by the Appellant/Plaintiff as shown in the ruling of the lower Court contained at Pages 269-278 of the printed record. That the lower Court only looked at the affidavit evidence in support of the Preliminary Objection and the counter affidavit and found that the suit is incompetent having been instituted outside the statutory three months prescribed by Section 2(a) of the Public Officers Protection Law, Cap 155 Laws of Taraba State, 1997 –Page 275 – 277 of the printed record.
On issue two, learned counsel submitted that the 1st, 2nd and 3rd Respondents are public officers under Section 2(a) of the Public Officers (Protection) Law, Cap 115, Law of Taraba State. According to counsel, the 1st, 2nd and 3rd Respondents deposed at Paragraphs 5(b) and (c) of the supporting affidavit to the Preliminary Objection (Pages 109 of the record) that they are public officers and therefore protected by the law and that the suit was not filed within the prescribed period of three months. That the Appellant did not counter those depositions in the counter affidavit; as such they are deemed admitted – Ben Thomas Hotels Ltd. v. Sebi Furniture (1989) 5 NWLR (Pt. 123) 742 and Danladi v. Dangiri (2015) 2 NWLR (pt. 1442) 124 at 195. According to counsel, being public officers, the Respondents enjoy protection under the law as such any action, prosecution or proceedings against them under Section 2(a) of the Law must be brought within three months – Joseph A. Alao v. Nigerian Industrial Bank (1999) 9 NWLR (Pt. 617)103. Counsel further submitted that the lower Court made findings of fact based on the affidavit evidence before it that the suit filed by the Appellant against the Respondents was statute barred, but the Appellant did not appeal against it. He urged this Court to so hold. He urged the Court to resolve the second issue in favour of the 4th and 5th Respondents and against the Appellant dismiss the Appeal and uphold the ruling of the lower Court.
In the Reply Brief of the Appellant, it was argued that the 1st, 2nd and 3rd Respondents’ Counsel argued in paragraph 7.1, 7.2 and 7.3 on their Brief of Argument that issue 1 distilled by the Appellant from grounds 1 and 3 of the grounds of appeal is based on the findings of the trial Court and not the ratio decidendi. According to counsel, the grounds of appeal emanated from the decision of the trial Court.
That the arguments in Paragraphs 8.1 – 8. 16 of the Respondents’ Brief are fresh and new arguments, while a Respondent’s Brief answers only the specific points in the Appellant’s brief – Ajomale v. Yaduat& Anor. (1991) LPELR 306 (SC) 16 Paragraphs C- D.
He urged the Court to discountenance with the submissions and all the authorities cited by Counselfor the Respondents.
The issue that calls for determination in this Appeal in my humble view is “Whether the trial Judge in determining the Preliminary Objection has decided the substantive case before him.” It is trite that once there is a competent application before a Court of law, the Court is duty bound to hear and determine same – Afro Continental Nig. Ltd &Ors. v. Co-Operative Association of Professionals Inc. (2003) 5 NWLR (Pt. 813) 303 at 317-8 Paragraphs F-B where the Apex Court held that:-
“It is mandatory that a Court must make a decision and pronounce on every application which is before it; and failure to do so is a breach of the right of fair hearing.”
See further the case of Fajimolu v. University of Ilorin (2007) 2 NWLR (pt. 1017) 74 and Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 516. At the lower Court, the 1st, 2nd and 3rd Respondents filed a notice of preliminary objection (Pages 106A-109) to the claims of the Appellant as per the writ of summons filed before the lower Court (Pages 1-4 of the Printed Record). The trial Court in its Ruling (Pages 269-278 of the Printed Records) upheld the PreliminaryObjection. In the supporting affidavit to the Preliminary Objection at Paragraphs 5 (a), (b) and (c) it was deposed to thus:-
5(a) “That the Plaintiffs cause of action aroused from the appointment and or the recommendation of the 3rd Defendant as the acting District Head of MatarFada District on the 8th day of June, 2017; while the Plaintiff took out his originating process against the Defendants on the 29th day of December, 2017.”
5(b) “That the Plaintiff’s action is caught up by the three (3) months mandatory period within which an action can be commenced against any public officer for an act done in furtherance of the execution of a duty imposed by law.”
5(c) “That the Plaintiff having failed or neglected to commence his action against the 1st and 2nd Defendants who are public officers within three months from the day of the accrual of the cause of action, the Plaintiff’s action is incompetent and therefore statute barred.”
However at Paragraphs 5(a), (b) and (c) of the counter affidavit filed by the Plaintiffs/Appellants to the P/Objection, it was deposed to thus:-
5(a) “That this case is not caught up with the Public Officer’s Protection Law.”
5(b) “That this Honourable Court has the jurisdiction to hear and determine this case.”
5(c) “That the Applicants acted illegally, maliciously and in abuse of their office.”
From the depositions of the affidavit in support of the Preliminary Objection and the Counter affidavit thereto, it is clear that the trial Court was called upon to determine whether the suit filed by the Appellant/Plaintiff before the lower Court against the Respondents/Defendants was statute barred or not. The period of limitation is determined by looking at the writ of summons and the statement of claim ONLY to ascertain the alleged date the wrong in question which gave rise to the Plaintiff’s cause of action was committed and comparing such date with the date on which the writ of summons was filed.
If the date/time on which the writ of summons/statement of claim was filed is beyond the period allowed by the limitation law, the action is statute barred. See C.I.L. Risk Management Ltd. v. Ekiti State Government & Ors (2020) LPELR – 49565 (SC), Egbe v. Adefarasin (1987) 1 NWLR (pt. 47) 1 at 20, Woherem v. Emereuwa (2004) 6-7 (SC) 161 and Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping & Transport Agency Ltd (1987) 1 NWLR (Pt. 49) 212. At Pages 275 to 277 of the Printed record, the Court held in its Ruling appealed against thus:-
“If the Court is to go by the plaintiff’s deposition in the counter affidavit, it will not be out of place to say that the plaintiff did not deny the fact that the action commenced against the defendants in this case and precisely on the 29th September, 2017 was more than 3 months after the appointment of the 3rd defendant by the 1st and 2nd defendants since on the 8th June, 2017 as acting District Head of Matarfada. But that notwithstanding the provision of Section 2(a) of the Public Officers Protection Law would not be caught up by the plaintiff because the defendants are in violation of the provision of Section 3 of the Chiefs (Appointment and Deposition) Law Cap. 26 Laws of Taraba State.
It is however, the view of this Court that the provision of Section 3 of the Chiefs (Appointment and Deposition) Law, Cap. 26 Laws of Taraba State, 1997 does not in any way contemplates acting appointment but appointment per se by the Governor upon the death, resignation or deposition of any chief. It does not therefore contemplates an acting appointment and that the 1st and 2nd defendants and particularly the 2nd defendant in this case who is the AkuUka of Wukari and who statutorily having the traditional control of all the district within his domain and being a public servant would have all the inherent powers to act in the best interest of his entire community and of course to fill in vacant positions of acting capacity where the need arises pending substantive appointment in line with the provision of the said Section 3 since the section as stated does not contemplates acting appointment. Hence the action of the 1st and 2nd defendants to bring in the 3rd defendant as the acting District Head of MatarFada District and I so hold.
This is because chieftaincy title in Nigeria is a position which by its own inherent force carries certain rights and powers. See Kwe Achebe v. Chief Mbanefo& Anor. (2017) LPELR 41884 (C.A).”
A careful look at the above ruling of the lower Court shows that the lower Court erred when it determined that the suit filed by the Appellant was filed outside the period of three months provided by the Public Officers Protection Law, Cap 115, Laws of Taraba State 1997 by looking at the affidavits (Affidavit in support and the Counter affidavit) of the Parties before it. As I stated earlier in this Judgment, it is trite that in deciding whether a suit is Statute Barred or not, the Court will ONLY look at the writ and the statement of claim to determine whether by looking at the statement of claim the date of the occurrence of the event complained of and the date the suit was filed is within the statutory period of three (3) months or not. If it is within the three months it is within time. If on the other hand it is outside the three months, it is Statute Barred. In the instant Appeal the lower Court went ahead to determine the substantive matter in the ruling as quoted above. This is because one of the reliefs sought by the Appellant/Plaintiff in the substantive case as can be gleaned from Paragraph 48 of the statement of claim which is at Page 14 of the record of Appeal is:-
“2. A DECLARATION that the appointment of the3rd Defendant by the 1st and 2nd Defendants as the acting District Head of Matarfada District of Wukari Local Government Area, Taraba State, is illegal and contrary to the provision of Section 3 (1) of the Chiefs (Appointment and Deposition) Law, Cap 26 Laws of Taraba State.”
When the lower Court held that: –
“It is however, the view of this Court that the provision of Section 3 of the Chiefs (Appointment and Deposition) Law, Cap. 26 Laws of Taraba State, 1997 does not in any way contemplates acting appointment but appointment per se by the Governor upon the death, resignation or deposition of any chief. It does not therefore contemplates an acting appointment and that the 1st and 2nd defendants and particularly the 2nd defendant in this case who is the Aku Uka of Wukari and who statutorily having the traditional control of all the district within his domain and being a public servant would have all the inherent powers to act in the best interest of his entire community and of course to fill in vacant positions of acting capacity where the need arises pending substantive appointment in line with the provision of the said Section 3 since the section as stated does not contemplates acting appointment. Hence the action of the 1st and 2nd defendants to bring in the 3rd defendant as the acting district head of Matarfada district and I so hold. This is because chieftaincy title in Nigeria is a position which by its own inherent force carries certain rights and powers. See KWE Achebe v. CHIEF MBANEFO & Anor. (2017) LPELR 41884 (C.A).” From the above quotation of the lower Court, it has decided the substantive matter at interlocutory stage.
In the case of Konduga L.G.C. VS. N.U.R.T.W & ORS (2013) LPELR 23355 (CA) 16 – 17, Paragraphs B – E. This Honourable Court per Omoleye, JCA, eloquently stated the position of the law thus:
“It is settled law that Courts do not decide the merits of a case at the interlocutory stage of the proceedings.
This Court in the case of Dehinsilu V. Mondec Pharmacy Ltd. (2008) LPELR- 3547, held per Lokulo-Sodope, J.C.A., that:
Surely, the law is immutable that a Court in deciding an Interlocutory application should not delve into the merit of the case or pre-determine the issues to be tried at the hearing of the caseSee MRS GLORIA NYA v. MADAM EME BASSEY EDEM (2005) ALL FWLR (Pt. 242) 576.
Also in the case of Adamu v. Suemo (2007) LPELR – 4468, I had the privilege of writing the lead judgment therein. Most humbly, it was and is still my view that a trial Court has the duty to carefully ensure that its ruling on an interlocutory matter does not render nugatory the substantive suit. It has been stated and restated, that indeed lower Courts should not, in a ruling in an interlocutory application, make orders which have the effect of pre-judging or pre-emptying the issues for adjudication in the substantive suit before trying the suit. Where the Courts err and decide the substantive matter at the interlocutory stage, the penalty of an appellate Court for such an error is, a setting aside of the outcome of the determination. In which case, such improper determination by the erring lower Court would be tantamount to a futile and wasted exercise. On this legal principle, the law reports are replete with a plethora of authorities: see but to mention a very few, the case of: (1) Ojukwu v. YarAdua (2009) 12 NWLR (Pt. 1154) p. 50 and (2) Shinning Star Nig., Ltd. V. Ask Steel Nig. Ltd. (2011) 4 LPELR 3051.”The issue for determination is therefore resolved in favour of the Appellant and against the Respondents. The Appeal is meritorious and is hereby allowed. The Ruling of the lower Court delivered on 31st January, 2018 is hereby set aside. The case is hereby remitted back to the Chief Judge of Taraba State High Court to be assigned to another Judge other than A. B. Abbare J., for trial De novo. No cost awarded. Parties to bear their respective costs.
CHIDI NWAOMA UWA, J.C.A.: I read in advance a draft copy of the judgment delivered by my learned brother ABDULLAHI MAHMUD BAYERO, JCA. My learned brother has resolved the issue that arose in this appeal in detail, I adopt same as mine in holding that the appeal is meritorious and the order remitting back the matter that led to this appeal to be re-assigned by the Chief Judge of Taraba State to another Judge other than the trial Judge, to be heard de Novo. I abide by the order of costs in the leading judgment.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother Abdullahi Mahmud Bayero JCA. Whether the action was statute barred is a preliminary objection to the hearing of the matter. Once the Court finds that the action is statute barred, what follows is a dismissal of the action. The Court below erred when it held that the action was statute barred but nevertheless proceeded to determine the merit of the suit.
I too set aside decision of the Court below and remit suit No. TRSW/28/2017 back to the chief Judge of Taraba State for hearing de novo before another Judge other than A.B. Abbare J.
I abide by the order as costs.
Appearances:
Martin Milkman, Esq. For Appellant(s)
B. Vaatsav, Esq. – for 1st, 2nd and 3rd Respondents.
C. R. Shaki Senior State Counsel I, Taraba State Ministry of Justice- for the 4th and 5th Respondents. For Respondent(s)
