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ZION v. NRC (2021)

ZION v. NRC

(2021)LCN/15892(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, May 31, 2021

CA/A/519/2016

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

MRS JUMMAI ZION APPELANT(S)

And

NIGERIA RAILWAY CORPORATION RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON THE COMMENCEMENT OF A SUIT AGAINST A CORPORATION OR ANY SERVANT OF THE CORPORATION

The relevant Sections of the law vital in the resolution of the appeal are Section 2(A) of the Public Officer’s Protection Act and Section 83(1) of the Nigeria Railway Corporation Act. Section 83(1) of the Nigeria Railway Corporation Act, 1955 provides that:
(1) No suit against the Corporation or any servant of the Corporation for any act done in pursuance or execution or intended execution of any Act or Law, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of such Act or Law, duty or authority, shall lie or be instituted in any Court, unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof: Provided that, in the case of a claim for a refund of an overcharge in respect of goods accepted by the Corporation for carriage, or for compensation in respect of loss, damage, deviation, mis-delivery, delay or detention of or to any goods so accepted, the cause of action shall be deemed to have arisen on the day of such acceptance.
(2) No suit shall be commenced against the Corporation, until three months at least after written notice of intention to commence the same, shall have been served upon the Corporation by the intending plaintiff or his agent; and such notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims.
The words used in the referred statute are plain and unambiguous, they must, as far as possible, be given their natural and ordinary meaning unless to do so would lead to absurdity. The plain words used by the Legislature is the best guide to their intention. See: ADEWUNMI V. A.G., EKITI STATE (2002) 2 NWLR (PT. 751) 474; A.G., LAGOS STATE V. EKO HOTELS LTD. (2006) 18 NWLR (PT. 1011) 378; OJOKOLOBO V. ALAMU (1987) 3 NWLR (PT. 61) 377; A.G ONDO STATE V A.G., EKITI STATE (2001) 17 NWLR (PT. 743) 706.
PER ONYEMENAM, JC.A.

THE POSITION OF LAW ON THE PROTECTION OF ALL PUBLIC OFFIECER ENGAGED IN THE EXECUTION OF PUBLIC DUTIES

By Section 2(a) of the Public Officers Protection Act, the Act gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public authority and are not acting outside their statutory or constitutional duty. A public officer can be sued outside the limitation period of three months if, at all times material to the commission of the act complained of, he was acting outside the scope of his office or outside his statutory or constitutional duty. Where he acted within the scope of his office, he can only lose protection of the limitation law if he is sued within three months. See: IBRAHIM V. J.S.C KADUNA STATE (1998) 14 NWLR (PT. 584) 1.
The Supreme Court in HASSAN V ALIYU [2010] 17 NWLR (PT. 1223) stated that the two conditions that must exist before a person can avail himself of the protection provided by Section 2(a) of the Public Officers Protection Act are:
(a) The person must be a public officer; and
(b) The act done by the person in respect of which that action was commenced was an act done in pursuance or execution or intended execution of law or public duty or authority. See: CBN V. OKOJIE (2004) 10 NWLR (PT. 882) 488.
PER ONYEMENAM, JC.A.

THE POSITION OF LAW ON THE INTERPRETATION OF STATUTES

I am of the further view that Section 83(1) of the Nigeria Railway Corporation Act is plain and unambiguous and should be given its plain meaning as where a statute provides for a means of doing a thing, no other means or manner shall be permitted. See: AGBI V. F.R.N.(2020) 15 NWLR (PT. 1748) 416; MATO V. HEMBER (2018) 5 NWLR (PT 1612); NWABUEZE V. OKOYE (1988) 4 NWLR (PT. 91) 664; EZEOBI V. NZEKA (1989) 1 NWLR (PT. 98) 478PER ONYEMENAM, JC.A.

THE POSITION OF THE LAW WHERE THE COURT RAISES AN ISSUE SUO MOTU ON BEHALF OF PARTIES

It is a well settled principle of law that where a Court decides to raise an issue suo motu or raises an issue the facts of which are not in evidence, then it must, as a matter of right, invite parties to address it on the issue especially a party who will be adversely affected by the decision. See INAINFE V. DAUKORU (2021) 2 NWLR (Pt. 1761) 477.
The Supreme Court in EHINLE V. IKORODU LOCAL GOVT. (2021) 1 NWLR (PT. 1757) 279, on whether a Court can raise and decide issue suo motu without hearing parties held as follows:
“It is wrong for a Court to raise an issue of fact suo motu and decide upon it, without giving parties an opportunity to be heard. This is so because, the Court is bound by and, therefore, confined to the issues raised by the parties. However, while the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu, the failure to do so, does not necessarily lead to a reversal of its decision. The failure of the Court to give such an opportunity to the parties will not always occasion a miscarriage of justice. Each case depends on its merit. Therefore, it is not sufficient for the purpose of reversing a judgment merely to show that an error of law was committed by the trial Court or the Appellate Court; the Appellant must further demonstrate or show that the error of law in the case occasioned a miscarriage of justice. In other words, the error must have substantially affected the result of the decision. The principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and decide upon it without hearing parties. In the instant case, there was no miscarriage of justice done to the Appellants. The issue of whether the Appellants abandoned their reliefs, which the trial Court raised and decided suo motu, had nothing to do with the facts or the substance of the case. It was an issue of law that touched on jurisdiction, see: IMAH V. OKOGBE (1993) 9NWLR (PT. 316) 159; EFFIOM V. C.R.S.I.E.C. (2010)14 NWLR (PT. 1213) 106; DICKSON OGUNSEINDE VIRYAFARMS LTD. V. SOCIETE GENERALE BANK (2018) 9 NWLR (PT. 1624) 230”
PER ONYEMENAM, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Niger State sitting in Minna, delivered on 17th March, 2016, wherein the learned trial Judge, Maria Sanda Zukogi, J. declined jurisdiction and held as follows:
“The alleged action which gave rise to the cause of action here falls within the powers and function of Nigeria Railways Corporation and exception to the rule will not avail the Plaintiff here. Furthermore as submitted in the applicant’s reply on points of law, S 83 (2) of the Nigeria Railways Corporation Act, Cap 129, laws of the Federation of Nigeria, 2004, provides that “No suit shall be commenced against the Corporation, until three months at least after written notice of intention to commence the same, shall have been served upon the corporation by intending plaintiff, or his agent and such notice shall clearly and explicitly state the cause of action, particulars of the claim, the name and place of abode of intending plaintiff and the relief which he claims” that notice the plaintiff did not serve. For all reasons stated above, the Court lacks the jurisdiction to entertain this matter and I consequently hereby strike out the same.”

The brief fact of the case is that the Appellant’s late husband had an accident with one of the Respondent’s train which resulted to the death of the Appellant’s husband, the Appellant instituted this action on the ground that the Respondent failed in its duty of care owed to her late husband.

The Appellant, dissatisfied with the decision of the trial Court, approached this Court by an Amended Notice of Appeal filed on 18th September, 2018; which process was deemed on 3rd March, 2020. In accordance with the Rules of this Court, parties duly filed their relevant processes; the appeal was heard on 1st March, 2021.

J. G. TAIDI ESQ. for the Appellant argued the appeal; BOLA AIDI ESQ. with JUSTIN OKALLA ESQ. for the Respondent responded to the argument of the Appellant in the appeal. Arguing the appeal Mr. TAIDI adopted and relied on the Appellant’s brief & reply brief filed 7th April, 2020 and 20th November, 2020, respectively in urging the Court to allow the appeal. AIDI Esq. of counsel adopted the Respondent’s brief filed on 23rd June, 2020; in urging the Court to dismiss the appeal.

In the Appellant’s brief of argument settled by J. G. Taidi, Esq., 2 issues were raised for determination as follows:
1. Considering the fact that the case of the Appellant was predicated on the unlawful and negligent killing of her husband, whether same does not fall within the exceptions to Section 2(A) of the Public officer’s Protection Act and Section 83(1) of the Nigeria Railway Corporation Act.
2. Considering the fact that the Respondent’s Preliminary Objection was predicated on a single ground, whether the trial Court was right to suo motu raise the issue of three months pre-action notice without inviting parties to address the Court on it.

In the Respondent’s brief of argument, settled by Bola Aidi Esq., 2 issues were submitted for determination thus:
1. Whether the learned trial Judge erred in law when he held that the claim of the Plaintiff before it was statute barred.
2. Considering the fact that the Respondent’s preliminary objection was predicated on a single ground, whether the trial Court was right to suo motu raise the issue of three months pre-action notice without inviting parties to address the Court on it.

Upon careful inspection of the 2 issues raised by Appellant and the Respondent respectively; I have the view that the 2 issues raised by the Respondent, which emanate from the Grounds of Appeal, will suffice for the determination of this appeal. I shall therefore determine this appeal on the referred two issues.

SUBMISSIONS ON ISSUE 1
Whether the learned trial Judge erred in law when he held that the claim of the Plaintiff before it was statute barred.
Mr. Taidi for the Appellant on this issue submitted that where a public officer acts outside the scope of his authority, he cannot claim protection under the Public Officer’s Protection Law or Act. It was further submitted that the Appellant has adduced facts that could enable the Court find that the Respondent acted outside the scope of its authority, without the semblance of legal justification when it neglected to discharge its duty of care and thereby caused the death of the Appellant’s husband.

The learned counsel on the exceptions to the protection allowed to a person or authority under Section 2 of the Public Officers Act, relied on the cases of NIGERIA STORED PRODUCTS RESEARCH INSTITUTE V. BOARD OF INTERNAL REVENUE, KWARA STATE (2013) LPELR-22073 (CA); ALHAJI JIBRIN BALA HASSAN V, DR. MU’AZU BABANGIDA & ORS (2010) LPELR-1357 (SC).

Mr. Aidi in the Respondent’s brief of argument, argued that by the provisions of Section 83 (1) of the Nigeria Railway Corporation Act, Laws of the Federation of Nigeria, 2004, the filling of the suit of the Appellant after one year of the alleged occurrence of the incident makes the suit statute barred and consequently strips the Court of the necessary jurisdiction to adjudicate the claim.

It was also submitted by the learned counsel that the exception the Appellant seeks to introduce into the above provision which was anchored on alleged neglect of the officers of the Respondent to control traffic cannot avail the Appellant’s failure to prosecute the claim timeously as granted by the Act.

By the Appellant’s reply brief of argument settled by J.G. Taidi Esq., it was submitted that Section 83(1) of the Nigeria Railway Corporation Act, Laws of the Federation of Nigeria, 2004, falls within the exceptions to limitation laws. He relied on the case of NIGERIA STORED PRODUCT RESEARCH INISTITUTE V. BOARD OF INTERNAL REVENUE, KWARA STATE (2013) LPELR-22073 (CA).

RESOLUTION OF ISSUE ONE
The relevant Sections of the law vital in the resolution of the appeal are Section 2(A) of the Public Officer’s Protection Act and Section 83(1) of the Nigeria Railway Corporation Act. Section 83(1) of the Nigeria Railway Corporation Act, 1955 provides that:
(1) No suit against the Corporation or any servant of the Corporation for any act done in pursuance or execution or intended execution of any Act or Law, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of such Act or Law, duty or authority, shall lie or be instituted in any Court, unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof: Provided that, in the case of a claim for a refund of an overcharge in respect of goods accepted by the Corporation for carriage, or for compensation in respect of loss, damage, deviation, mis-delivery, delay or detention of or to any goods so accepted, the cause of action shall be deemed to have arisen on the day of such acceptance.
(2) No suit shall be commenced against the Corporation, until three months at least after written notice of intention to commence the same, shall have been served upon the Corporation by the intending plaintiff or his agent; and such notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims.
The words used in the referred statute are plain and unambiguous, they must, as far as possible, be given their natural and ordinary meaning unless to do so would lead to absurdity. The plain words used by the Legislature is the best guide to their intention. See: ADEWUNMI V. A.G., EKITI STATE (2002) 2 NWLR (PT. 751) 474; A.G., LAGOS STATE V. EKO HOTELS LTD. (2006) 18 NWLR (PT. 1011) 378; OJOKOLOBO V. ALAMU (1987) 3 NWLR (PT. 61) 377; A.G ONDO STATE V A.G., EKITI STATE (2001) 17 NWLR (PT. 743) 706.

The contention of the Appellant is that the suit which gave rise to this appeal falls within the exceptions to Section 2(a) of the Public Officers  Protection Act Cap P. 41, Laws of the Federation, 2004. Section 2(a) of the Public Officers Protection Act (supra) provides that:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect-
The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in case of a continuance of damage or injury, within three months next after the ceasing thereof…”
The Supreme Court in HASSAN V. ALIYU (2010) 17 NWLR (Pt. 1223) 547; pronounced on when Section 2(a) of the Public Officers Protection Law will not avail a public officers thus:
“Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers Protection Law of such protection. The burden is on the plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of logical justification. Evidence that he may have been overzealous in carrying out his duties or that he had acted in error of judgment, or in honest excess of his responsibility, will not amount to bad faith or abuse of office. Abuse of office is the use of power to achieve ends other than those for which power was granted; for example, for personal gain, to show undue favour to another or to wreak vengeance on an opponent”
By Section 2(a) of the Public Officers Protection Act, the Act gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public authority and are not acting outside their statutory or constitutional duty. A public officer can be sued outside the limitation period of three months if, at all times material to the commission of the act complained of, he was acting outside the scope of his office or outside his statutory or constitutional duty. Where he acted within the scope of his office, he can only lose protection of the limitation law if he is sued within three months. See: IBRAHIM V. J.S.C KADUNA STATE (1998) 14 NWLR (PT. 584) 1.
The Supreme Court in HASSAN V ALIYU [2010] 17 NWLR (PT. 1223) stated that the two conditions that must exist before a person can avail himself of the protection provided by Section 2(a) of the Public Officers Protection Act are:
(a) The person must be a public officer; and
(b) The act done by the person in respect of which that action was commenced was an act done in pursuance or execution or intended execution of law or public duty or authority. See: CBN V. OKOJIE (2004) 10 NWLR (PT. 882) 488.

The question in the instant case is, whether the Respondent’s neglect or default to act by failure of her staff to control traffic at the station of the accident brought the Respondent outside the protection of the limitation law as provided by Section 2(a) of the Public Officers Protection Act and Section 83(1) of the Nigeria Railway Corporation Act.

​In considering this question, I will visit the Originating processes in this suit. In the averments in the statement of claim of the Appellant as at pages 9 to 13, the Appellant at paragraphs 14 to 18 averred as follows:
“14. That on 28th June, 2014, while returning from Kasuwan Gwari market in the Peugeot 505 salon with registration no. CP 257 AAA at about 4pm which was driven by my late husband (Mr. Emunemu Paul Zion) we ran into a traffic hold up on both lanes at around the railway crossing situate close to John Holt stores, Minna.
15. That there was a truck in front of our car which made it difficult for my late husband (Mr. Emunemu Paul Zion) to move either forward or backward as result of which I came down from the car and moved ahead of the truck with a view to ascertain the cause of the traffic jam.
16. That I suddenly noticed that our car was right on the rail track and there was an oncoming train belonging to the Defendant at top speed, and there were no barriers to stop traffic on either side.
17. That I also noticed that there was no railway staff or any official of the Defendant to stop traffic.
18. That while I was still outside the car with other passers bye at the scene I tried to alert my late husband (Mr. Emunemu Paul Zion) about the fast approaching train which was coming from Lagos axis to Minna, the said train rushed the car with my late husband right inside. (Underlined for emphasis is mine),

From the Appellant’s statement of claim, the Respondent is a government agency involved in public service. Also, the entire averments of the Appellant as reproduced above border on alleged neglect of the Respondent or its officers to act or carry out their duty. It is the Appellant’s contention that the act of negligence or failure of the Respondent to provide due care for other road users constitute an exception to the limitation provision under Section 83(1) of the Nigeria Railway Act, 2004 and so, the Respondent could not be protected by Section 2(a) of the Public Officers Protection Act. The specific legislation Section 83(1) (supra); categorically provides that no suit against the corporation or any servant of the corporation for any act done in pursuance or execution or intended execution of any Act or Law, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of such Acts or law, duty or authority, shall lie or be instituted in any Court unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof. (the underline is for emphasis).
From the referred Section 83(supra); it follows that the alleged neglect complained of by the Appellant must unequivocally be litigated within twelve calendar months of the neglect or default complained of which most unfortunately is not the case herein. From the above provision therefore, it is my clear view that the exception the Appellant seeks to introduce into the said provision which is basically anchored on alleged negligence of the officers of the Respondent to stop or control traffic as could be seen at paragraphs 16 and 17 of the statement of claim and as argued in the Appellant’s brief at paragraphs 4.1.1 to 4.1.8 cannot in the circumstance of the facts and provision of the Railway Act avail the Appellant’s failure in prosecuting the claim within the one year framework granted by the Act. I therefore hold that Section 83(1) of the Nigeria Railway Corporation Act, 2004, does not admit the exception as contended by the Appellant.
​I am of the further view that Section 83(1) of the Nigeria Railway Corporation Act is plain and unambiguous and should be given its plain meaning as where a statute provides for a means of doing a thing, no other means or manner shall be permitted. See: AGBI V. F.R.N.(2020) 15 NWLR (PT. 1748) 416; MATO V. HEMBER (2018) 5 NWLR (PT 1612); NWABUEZE V. OKOYE (1988) 4 NWLR (PT. 91) 664; EZEOBI V. NZEKA (1989) 1 NWLR (PT. 98) 478.
Section 83(1) of the Nigeria Railway Corporation Act having clearly provided that, any suit against the corporation shall be commenced within twelve months without admission of the exception of the negligence of the Respondent or her staff as urged by the Appellant; therefore, by the referred Act, the Appellant ought to have brought her action within twelve months next after the negligent act or default complained of. I hold that the Appellant having failed to so bring her action within the prescribed time, her action by Section 83 (1) of the Nigeria Railway Corporation Act and Section 2 (a) of the Public Officers Protection Act, is statute barred.

​The trial Court was therefore right to have held that the instant suit has become statute barred.

I resolve this issue in favour of the Respondent and against the Appellant.

SUBMISSIONS ON ISSUE 2
Considering the fact that the Respondent’s preliminary objection was predicated on a single ground whether the trial Court was right to suo motu raise the issue of three months pre-action notice without inviting parties to address the Court on it.
J.G Taidi Esq. for the Appellant submitted that the trial Court erred in law and occasioned a miscarriage of justice when it held on the new issue arising from the Respondent’s reply on point of law in relation to the Preliminary Objection and ruled on it. It was further submitted that the issue of pre-action Notice never formed part of the grounds upon which the Preliminary Objection was predicated and was not argued by the objector in its address in support of the Preliminary Objection.

The learned counsel submitted that the Appellant was not allowed an opportunity by the trial Court to address it on this particular issue and therefore denied the Appellant fair hearing. He relied on the case of: TINUBU V. I.M.B SECURITIES PLC, (2001) LPELR-3248 (SC).

​The learned counsel submitted that the issue of pre-action notice is an issue of fact, not law, and the trial Court cannot rely on speculation to decide same. He urged the Court to allow the appeal.

The Respondent’s counsel on this issue submitted that the Court may where necessary raise the issue of jurisdiction suo motu. It was further submitted that in the instant case, the trial Court referred to the Applicant’s reply on point of law and cannot be said to have raised the issue of jurisdiction suo motu.

He urged the Court to resolve the issue in favour of the Respondent.

RESOLUTION OF ISSUE 2
It is a well settled principle of law that where a Court decides to raise an issue suo motu or raises an issue the facts of which are not in evidence, then it must, as a matter of right, invite parties to address it on the issue especially a party who will be adversely affected by the decision. See INAINFE V. DAUKORU (2021) 2 NWLR (Pt. 1761) 477.
The Supreme Court in EHINLE V. IKORODU LOCAL GOVT. (2021) 1 NWLR (PT. 1757) 279, on whether a Court can raise and decide issue suo motu without hearing parties held as follows:
“It is wrong for a Court to raise an issue of fact suo motu and decide upon it, without giving parties an opportunity to be heard. This is so because, the Court is bound by and, therefore, confined to the issues raised by the parties. However, while the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu, the failure to do so, does not necessarily lead to a reversal of its decision. The failure of the Court to give such an opportunity to the parties will not always occasion a miscarriage of justice. Each case depends on its merit. Therefore, it is not sufficient for the purpose of reversing a judgment merely to show that an error of law was committed by the trial Court or the Appellate Court; the Appellant must further demonstrate or show that the error of law in the case occasioned a miscarriage of justice. In other words, the error must have substantially affected the result of the decision. The principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and decide upon it without hearing parties. In the instant case, there was no miscarriage of justice done to the Appellants. The issue of whether the Appellants abandoned their reliefs, which the trial Court raised and decided suo motu, had nothing to do with the facts or the substance of the case. It was an issue of law that touched on jurisdiction, see: IMAH V. OKOGBE (1993) 9NWLR (PT. 316) 159; EFFIOM V. C.R.S.I.E.C. (2010)14 NWLR (PT. 1213) 106; DICKSON OGUNSEINDE VIRYAFARMS LTD. V. SOCIETE GENERALE BANK (2018) 9 NWLR (PT. 1624) 230”

The grouse of the Appellant is the holding of the trial Court as follows:
“Furthermore as submitted in the Applicant’s reply on points of law, S. 83 (2) of the Nigeria Railway Corporation Act, Cap 129, Laws of the Federation of Nigeria, 2004, provides that “No suit shall be commenced against the Corporation, until three months at least after written notice of intention to commence the same, shall have been served upon the corporation by the intending plaintiff, or his agent and such notice shall clearly and explicitly state the cause of action, particularly of the claim, the name and place of abode of intending plaintiff and the relief which he claims”.

On when a Court can be accused of raising an issue suo motu, the Supreme Court in THINK VENTURES LTD. V. SPICE & REGLER LTD. (2021) 2 NWLR (PT. 1759) 114 held as follows:
“Under Nigerian adjectival laws, a Judge can only be accused of raising an issue suo motu if the issue was never raised by any of the parties or both parties in the litigation. A Judge cannot be accused of raising an issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings.”

The instant suit was instituted by the Appellant at the trial Court via writ of summons as seen at pages 2 to 3 of the record of appeal. The Respondent herein filed a memorandum of conditional appearance, alongside a Notice of Preliminary Objection as contained at pages 160 to 162. The Appellant on the other hand, filed a reply to the Notice of Preliminary Objection as contained at pages 171 to 174 and the Respondent filed a reply on point of law as seen at pages 179 to 182 wherein, the learned counsel for the Respondent submitted as follows:
“We therefore humbly submit that the alleged action which allegedly gave rise to the cause of this action falls within the powers and functions of the Nigeria Railway Corporation and as such, the Plaintiff must fail in her adventure to place this suit under the exceptions to the rule that:
Whereby statute has provided the time within which an action must be taken, the action having not been taken with that period of time allowed by statute loses its validity.

Furthermore, Section 83(2) of the Nigerian Railway Corporation Act, CAP N129 Laws of the Federation of Nigeria, 2004 clearly provides:
“No suit shall be commended against the corporation, until three months at least after written notice of intention to commence the same, shall have been served upon the corporation by the intending plaintiff or his agent and such notice shall clearly and explicitly state the cause of action the particulars of the claim, the name and place of abode of intending Plaintiff and the relief which he claims.”

From the Respondent’s reply on point of law as reproduced above, the Respondent in attempt to reply the Appellant on the issue that the suit falls within the exception to Section 2(a) of the Public Officers Protection Act, relied on Section 83 (2) of the Nigerian Railway Corporation Act (supra) to submit that the Appellant must fail in her attempt to make the Court to assume jurisdiction. The learned counsel for the Respondent reproduced Section 83(2) of the Nigerian Railway Corporation Act (supra) in support of his argument that the suit has become statute barred. It is important to note that the Respondent had in his Preliminary Objection relied on Section 83(1) of the Nigeria Railway Corporation Act in urging the Court to decline jurisdiction but in his reply on point of law, he further relied on Section 83(2) of the Nigerian Railway Corporation Act in urging the Court to still decline jurisdiction on the ground that the suit is statute barred.

I do not see any new issue raised by the Respondent as argued by the Appellant. The whole argument centered on whether or not the suit is statute barred by Section 83 (2) of the Nigerian Railway Corporation Act. This I hold does not amount to raising new issue in the Respondent’s reply on point of law.

​Again, from the entirety of the decision of the trial Court as contained at pages 183 to 189; the trial Court in considering the Respondent’s reply on point of law reproduced and analysed S. 83 (2) of the Nigeria Railway Corporation Act, Cap 129, Laws of the Federation of Nigeria, 2004. This to me, does not amount to the trial Court raising an issue suo motu and relying on the same without calling on the parties to address it. The trial Court merely reproduced the above Section while considering the Respondent’s reply on point of law on the issue joined by the parties as to whether the suit is statute barred. Let me note here that the trial Court did not rely solely on S. 83 (2) of the Nigeria Railway Corporation Act, Cap 129 (supra) in the determination of the issues presented before it. The learned trial Judge at page 186 held thus:
“Section 83(1) of the Nigeria Railway Corporation Act states that, no suit against the Corporation or any servant of the Corporation for any act done in pursuant or execution or intended execution of any act or law or of any public duty or authority or in respect of any alleged neglect or default in the execution of such Act or law, duty or authority shall lie or be instituted in any Court, unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of continuance of damage, or injury within twelve months next after the ceasing thereof.
I agree with the applicant counsel that this Court would have been seized of the jurisdiction in this suit if same had been instituted within twelve months after the accrual of the alleged cause of death”.

Consequently, I hold that the fact that the trial Court reproduced Section 83(2) of the Nigeria Railway Corporation Act, Cap 129 while considering the Respondent’s reply on point of law does not amount to any miscarriage of justice, this is because, the trial Court relied on Section 83(1) of the Nigeria Railway Corporation Act (supra) in declining jurisdiction to entertain the matter and not solely Section 83(2) of the Nigeria Railway Corporation Act Cap 129. I disagree with the arguments of the Appellant on this issue. I hold that the trial Court did not raise issue suo motu without inviting the parties particularly the Appellant to address it, therefore, the trial Court did not violate the Appellant’s right to fair hearing.

​I resolve this issue against the Appellant and in favour of the Respondent.

Having resolved the 2 issues in favour of the Respondent and against the Appellant, I hold that the appeal lacks merit and the same is hereby dismissed. I affirm the ruling of the High Court of Niger State delivered by Maria Sanda Zukogi, J. on 17th March, 2016.
I make no order as to cost.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form, the judgment just delivered by my learned brother, Uchechukwu Onyemenam, JCA.

I agree that this appeal lacks merit and I also dismiss it with an order that the parties should bear their respective costs.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the benefit of reading in draft, the judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA and I agree with the conclusion therein. I therefore also dismiss the appeal and abide by the consequential order made therein.
​No order as costs.

Appearances:

J.G. Taidi For Appellant(s)

Bola Aidi, with him, Justin Okalla For Respondent(s)