PAUL ODIMEGWA & ORS v. DANIEL IBEZIM & ORS
On Friday, the 8th day of March, 2019
SC.24/2008Before Their Lordships
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
Between
Before Their Lordships
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
Between
1. PAUL ODIMEGWA
2. REV. AUGUSTINE ODIMEGWA
3. ANAYO ODIMEGWA
4. MR. IKECHUKWU ODIMEGWA
5. CHINEDU ODIMEGWA Appellant(s)
AND
1. DANIEL IBEZIM
2. HENRY EZUMBA
3. PETER UCHUAKA
4. MR. JONAH IKEDINMA
[Suing for themselves and on behalf of members of Umudim Ogbujiasili kindred of Ezeannaja-Amada village, Oraukwu] Respondent(s)
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AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): The Parties, who are Members of the same “Umudim Ogbujiasili Kindred of Ezeannaja-Amada Village, Oraukwu were fighting over a piece of land known as and called “Obi-be-Dim Ogbujiasili’: The Respondents, for themselves and on behalf of Members of the “Kindred, as a body, sued their “cousins and descendants of a common ancestor” [Appellants] at the Anambra State High Court.
The Appellants, as Defendants at the trial Court, did not file a Statement of Defence, rather they raised a Preliminary Objection by way of Motion on Notice wherein they prayed the trial Court for:
An order of [the] Court dismissing the above case on the ground of incompetence and non-disclosure of a reasonable cause of action.
They argued at the trial Court that since the Respondents brought the Suit representing both Parties, there are no Parties because “a Plaintiff cannot sue himself; and that for it to have jurisdiction, “there must be a dispute between persons of different interest but the quarrel is between the same person and the [trial] Court cannot intervene where someone is quarreling with himself.”
In its Ruling, the trial Court, relying upon Order 3 Rule 1 of the High Court Rules, which says “any person in whom a relief exists may sue as Plaintiff and any person against whom the relief exists, may be sued as Defendant”: held as follows on this Issue –
The Plaintiffs have sued for themselves and on behalf of Umudim- Ogbujiasili Kindred of Ezannaja Amadi Village of Oraukwu, against the named Defendants, who though members of the said Kindred, had gone into the “Obi” as claimed, which from their pleadings, belong to all the members’ family, demolished same and looted the content therein. From the said Pleadings, which is the focal pointing this
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Application, a right to a relief, obviously, exist in the Kindred as a body against the named Defendants - The said Order 3 Rule 1 does not support the submission of [Defendants].
It also held that “there is a cause of action by the Plaintiffs against the named Defendants”, and concluded as follows in its Ruling –
This Objection falls and the Defendants are hereby ordered, pursuant to Order 10 Rule 1(3) of the High Court Rules – – to file their Statement of Defence and Plan, if necessary, within 60 Days hereof Dissatisfied, the Appellants appealed to the Court of Appeal and, in its Judgment delivered on 23/11/2006, the Court of Appeal held:
The view canvassed for the Appellants that the Respondents sued themselves is not acceptable. These days, in the determination of cases, a Court aims always at achieving substantial justice for the Parties and, therefore, in the exercise of judicial discretion, the primary objective of the Court must be to attain substantial justice. This is a land matter and – – it is both a fundamental and elementary principle of the administration of justice that whenever it is possible to determine a case on its merit, the Court should not succumb to the temptation of hastily determining it in limine. What it all means is that every effort must painstakingly be made to do justice. A snappy short cut decision, bereft of an examination of the merits of the case, often settles nothing but rather exacerbates the conflict between the Parties. In view of the foregoing, coupled with the fact that specific allegations have been made against the Defendants, it could not be presumed that the allegations made against the Defendants are in any way directed at the Plaintiffs, therefore, I have come to the inevitable conclusion that the Suit before the lower Court is competent and it has disclosed a reasonable cause of action. The sole Issue in this Appeal is resolved against the Appellants. I hold that the Appeal lacks merit and should be dismissed. In the result, I dismiss the Appeal and order that this case be remitted to the Chief Judge of Anambra State for assignment to the trial Judge or another Judge to hear and determine it without delay. [Per Jimi O. Bada, JCA]
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Aggrieved, the Appellants appealed to this Court with a Notice of Appeal containing one Ground of Appeal, and Briefs of Argument, were duly filed and served. The Respondents challenged the competency of this Appeal in their Brief on the ground that the said Ground of Appeal and the Issue distilled there-from, do not arise from the decision of either the High Court or Court of Appeal. But at the hearing of this Appeal on 11/12/2008, the Respondents withdrew the said Objection, and it was, accordingly struck out. With no impediments, the Appeal will be considered on its merits.
The Appellants submitted in their Brief that the sole Issue for Determination in this Appeal is “whether or not the Respondents have the locus standi to maintain this Suit’: and the Respondents adopted the Issue for Determination “as raised by the Appellants”, in their Brief of Argument. I adopt same in dealing with the Appeal.
The Appellants contend that the said Suit was brought at the ‘instance of busy bodies and professional litigants’. They argued that for there to be locus standing the action must be justiciable, and must be a dispute between Parties, citing Chief Judge Abia State, Hon. Justice K. O. Amah & Ors. V. Ndionyenna Nwankwo, Esq., (2007) 12 NWLR (Pt. 7049)552- that the term ‘justiciable’: refers to real and substantial controversy, which is appropriate for judicial determination, “as distinguished from a dispute or difference of contingent, hypothetical or abstract character”; and that analysis of Respondents’ Statement of Claim reveals the following facts:
i) The land of Dimogbujiasili, the common ancestor of the Parties, had long been partitioned; and
ii) The land in dispute fell to the share of Nkemadigo, the son of Anulubu, who is the son of Dimogbujiasill
They submitted that the effect of partitioning is that the property, which belonged to the larger family, is split up into ownership of constituent members of the family and puts an end to communal ownership; and when the division is among constituent branches of the family, as in this case, a new family
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ownership is created, citing Oyadiji v. Olaniyi & 4 Ors (2005) 5 NWLR (Pt. 919) 561 at 575, and Kaya Oja V. Bello & 2 Ors (2005) 4 NWLR (Pt. 915) 327 at 337/8.
They cited Sections 3(1) & (2) of the Actions Law of Anambra State Cap. 3, Laws of Anambra State 1991, and further argued that not having disclosed any interest in the subject matter of the Suit, the Kindred cannot maintain the action as they have no capacity to do so, and have no legal standing; that to do so, they must show that their interest will be affected by the conduct and acts of the Appellants; and that there is no such interest at stake as the said property, had long been partitioned, and the subject matter of the Suit, had long become Nkemadigho’s share, citing Sehindemi & Ors V. Governor of Lagos State & 7 Ors. (2006)10 NWLR (Pt. 987)1.
They also submitted that the rule of locus standi evolved to protect Courts from being used as a playground by professional litigants, meddlers, prank-players and other cranks, who may have no real stake or interest in the subject matter of litigation, citing Uzoho & Ors. V. N.C.P. & Ors. (2007) W NWLR (Pt. 1042) 320; and that the facts of this case portray the Respondents as “a mere busybody, who are fighting a battle that does not concern them”.
They further submitted that “the whole gamut of this case demonstrates an uncanny effort or attempt to seek access to the Court for a matter nebulous, the result of which would neither enure to the Plaintiffs/Respondents nor their family”; and that this lack of locus standi goes to jurisdiction of the Court, and denies it the jurisdiction to hear the case, citing Herbert Ohuabunwa Emezi V. Akujobi David Osuagwu & Ors. (2005)12 NWLR (939) 340 at 361.
But the Respondents contend that they disclosed sufficient interest in the subject matter of the Suit and showed enough locus to maintain the said action. They submitted that in considering the issue of whether a Party has locus standi, it is the statement of claim alone that the trial Court should look at, citing
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Omega Bank V. Government of Ekiti State (2007) 16 NWLR (Pt. 1061) 445 and Fawehinmi V. President F.R.N. (2007) M NWLR (Pt. 1054) 275, and they set out the following paragraphs of their Statement of Claim:
1. The Plaintiffs are members of Umudim-Ogbujiasili kindred of Ezennaja-Amada Village, Oraukwu.
2. The Defendants are also members of Umudim-Ogbujiasili kindred of Ezennaja-Amada Village, Oraukwu.
3. The Parties hereto are ipso facto cousins and descendants of a common ancestor
4. The Plaintiffs aver that their great ancestor is Dimogbujiasili.
5. The piece and parcel of land now put in dispute by the Defendants is known as and called the “Obi-Dimogbujiasili” or “Obi- Umudimogbujiasili” (as is now called by his offspring). The said land is verged Red in Survey Plan No–filed along with this Statement of Claim. The Plaintiffs plead the said Plan and all the features thereon which shall be founded upon at the hearing of this Suit.
20. The land in dispute fell into the share of Dimogbujiasili who set up his homestead thereat and lived thereat.
21. Dimogbujiasili was the person entitled as of right to live and occupy Epikes’ homestead which today is still vacant and uninhabited but is only resorted to on ceremonial occasions. The reason why Dimogbujiasili moved to a new site was because the Obi-Epike was too small to accommodate him and his Harem.
27. By the custom of Oraukwu town, and indeed of the entire Igboland, the land now in dispute became the portion of Nkemeadigo as the 1st son of Dimogbujiasili. He, however, acquired land elsewhere where he built another homestead He however left the land in dispute as a symbol of unity amongst all the descendants of Dimogbujiasili.
28. The land in dispute consequently became a symbol of unity amongst all the descendants of Dimogbujiasili until in recent times when late Mr. Jerome Odimegwa from time to time tried to encroach on the said Obi. Each time he was resisted and repelled and his efforts albeit subtly
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were without success.
38. Despite the accepted decision with the plan, quoted above, late Mr. Jerome Odimmegwa with his son led by Rev. Fr. Augustine Odimmegwa demolished and looted the content of the house.
The items removed from the house – (the Obi) include:
(a) Akwali Epike
(b) Okike Epike
(c) Ikenga
(d) Okwa Mmuo
(e) Offor Dim
(f) Ekpeke Dim
(g) Mpi Atu Dim
(h) Oche Mmuo Dim, the carved stool where the reigning oldest member of the kindred sits while pouring libations to the ancestors.
44. WHEREFORE THE PLAINTIFFS claim against the Defendants jointly and severally as follows –
(a) A Declaration that the Parties hereto having submitted themselves to the 3 different customary arbitrations are bound by the outcome of and the decisions of the said arbitrations.
(b) A declaration that the Plaintiffs as a body are the persons entitled to the Customary Right of Occupancy in respect of the piece and parcel of land more clearly shown and delineated in Survey Plan No. MES/LD 09/2004 accompanying this Statement of Claim otherwise known and called “Obi-Dimogbujiasiii” or “Obi Umudimogbujiasill
(c) Perpetual Injunction restraining Defendants by themselves, servants, agents or privies from trespassing into the piece and parcel of land to be more clearly shown and delineated in a Survey Plan to be made and accompanying the Statement of Claim otherwise known and called Obi-
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be-Dim Ogbujiasill.
(d) An order directing the Defendants to return to the “Obi-Dimogbujiasili” or “Obi-Umudimogbujiasili” all the items referred to in paragraphs 38 and 39 above.
(e) The sum of N1, 000,000.00 being general, special Damages and exemplary Damages for the loss resulting from the trespass.
They contend that in the face of these averments, it cannot be said “they do have not locus stand! or the capacity to sue or sufficient interest in the subject matter of contest”: and submitted that the Statement of Claim, which is the only document to be relied upon in determining locus standi did not say, as argued by Appellants, that the land was partitioned and ceased to be a family property: that it is a notorious fact of custom that needs no proof, that an Obi in Igboland is owned by the family in union and they traced how the property became a “Symbol of Unity”, and thus their joint property: and that the Plaintiff does not have to be owner of the land since the fact that he is in possession is enough for him to maintain an action in trespass, citing Amakor V. Obiefuna (1974) 3 SC 67.
They also argued that this Issue cannot even be raised in this Appeal in the face of findings made by the Court of Appeal, which were not appealed against; that Court of Appeal made this finding:
I have come to the inevitable conclusion that the Suit before the lower Court is competent and it has disclosed a reasonable cause of action.
That there is no appeal against the above finding, and the result is that it is deemed to have been accepted by the Appellants because it is the law that where a Party fails to appeal against a finding or a decision of a Court, he is deemed to have accepted that decision, citing Umana V. Attah (2006)17 NWLR 503 @ 536 (sic); and that –
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Having accepted that [the] Suit disclosed reasonable cause of action, the Appellants cannot in this Court question the locus standi of the Respondents, when the said Appellants have acceded that the Respondents have reasonable cause of action.
First off, the Respondents’ argument that the Appellants having acceded that the said Suit disclosed a reasonable cause of action, cannot question their locus standi in this Court, is misconceived. Locus standi and reasonable cause of action may apply to divest a Court of jurisdiction but they cannot be equated with each other.
“Reasonable cause of action” is simply a cause of action with a chance of success – see Dantata V. Mohammed (2002) 5 SC 1 and Rinco Construction Co. V. Veepee Industries Ltd. (2005) 3-4 SC 1. In other words, where the endorsement on the Writ of Summons and Statement of Claim discloses a “cause of action”: the Court, unless precluded by other statutory provisions, can exercise jurisdiction – seeUtih V. Onoyivwe (1991)1 NWLR (Pt. 166) 166 SC.
“Locus standi is Latin for “place of standing?’, and it means – “the right to bring an action or to be heard in a given forum” – see Black’s Law Dictionary.9th Ed. This concept is predicated on the assumption that no Court is obliged to provide remedy for a claim in which the Applicant has a remote, hypothetical or no interest – see Att. Gen. Kaduna State V. Hassan (1985) 2 NWLR (Pt. 8) 483 SC.
See alsoAdesanya V. President, FRN (1981) 2 SCNLR 358, wherein this Court held that a “fundamental aspect of locus standi is that it focuses on the Party seeking to get his complaint before the High Court not on the issue he wishes to have adjudicated.”
So, the person instituting an action in Court must have legal capacity, otherwise the Court is robbed of the jurisdiction to entertain it.
Simply put, locus standi beams a searchlight on the Party, while “cause of action” focuses on the grievance, he wishes to air in Court. Thus, both concepts connote different things in law and are
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distinguishable from each other – seeA.G., Anambra V. Eboh (1992) 1 NWLR (Pt. 218)1, where Uwaifo, JCA (as he then was) said:
The objection as to locus standi was not canvassed on the question whether there was a reasonable cause of action…. The issue of standing to sue must with due care be separated from whether a Plaintiff as a reasonable cause of action. They are not coextensive, nor does a finding in favour of the former depend on the examination of the latter. All that is required is to ascertain whether the person, whose standing to sue, is in issue is a proper Party to request an adjudication of a particular issue.
In other words, a determination that the Plaintiff has locus standi does not depend on whether he has a reasonable cause of action.
But the Statement of Claim must do both; it must disclose a cause of action and it must also show the locus standi of the Plaintiff – see Thomas V. Olufosoye (1986) 1 NWLR (Pt 18)669SC.
In this case, the Appellants only complained to this Court that Court of Appeal erred when it “failed to strike out the suit for want of locus standi.
They did not challenge its finding that the Respondents had a reasonable cause of action, therefore, the Respondents are right, and this Court has no business whatsoever to deal with it because it is settled law that if a finding of a lower Court is not challenged on appeal, such a finding or decision, rightly or wrongly, must not be disturbed by an appellate Court for the purpose of that appeal- see Oshodi V. Eyifunmi (2000)13 NWLR (Pt. 684) 298 at 332 SC.
In effect, the only question for determination in this Appeal is whether Respondents had locus standi to institute the action at the trial Court; not whether they had reasonable cause of action.
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It is settled that a Plaintiff will have locus standi only if he has a special right or alternatively if he can show that he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected- see Nyame v. FRN (2010) 7 NWLR (Pt 1193) 344; Busari V. Oseni (1992) 4 NWLR (Pt. 237) 55Z wherein this Court Tobi, JCA (as he then was) stated:
The determination of locus standi zeroes on two major and telling words. One is ‘Sufficient”. The other is “interest’: They both make up the “sufficient interest” concept. The term sufficient interest is broad and generic. It is also vague and nebulous. It lacks a precise and apt legal meaning. It could only be determined in the light of the facts and circumstances of the particular case. The question of what constitutes sufficient interest is one of mixed law and fact; that is to say, it is not a question of law only or a question of fact only but both. In arriving at a decision one way or the other, the Court will be guided by the overall interest of the Parties in the litigation process in the absence of a specific enabling statute. This involves two apparently conflicting duties of the Court to vindicate the rights of the Plaintiff to set the litigation process in motion and the concomitant rights of the Defendant not to be dragged into unnecessary litigation by a person, who has no standing in the matter, or a mere busybody parading the corridors of the Court– The trial judge, in determining locus standi, will be involved in the delicate balancing of divergent interests, which are diametrically opposed – – It is a very complex exercise based on the pleadings of the Plaintiff - In Maradesa V. Mil. Gov., Oyo State (1985) 3 NWLR (Pt. 7)125, the Court held that the term “interest” – – should be regarded as including any connection, association or interrelation between the Applicant and the matter to which the Application relates. One other test of sufficient interest is whether the Party seeking for the redress or remedy will suffer any injury or hardship arising from the litigation. If the Court is satisfied that he will so suffer, then he must be heard as he is entitled to be heard.
A person is said to have an interest in a thing when he has rights, advantages, duties, liabilities, losses or the like connected with it, whether present or future, ascertained or potential; provided that the possibility is not too remote, and the question of remoteness, depends upon the purpose which the interest is to serve Imade V. Mil. Admin. Edo State (2001) 6 NWLR (Pt. 709)
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478. What is more, the fact that the person may not succeed does not have anything to do with his standing to bring the action – see A.G. Kaduna State V. Hassan (supra), wherein Oputa, JSC, also observed as follows:
Another test of Standing is whether there exists a dispute between the Parties. Proof of a dispute is in effect proof that the judicial intervention is not only helpful but also necessary indeed, for the resolution of the issue – – – There should be someone to decide the dispute one way or the other. The Courts below were, therefore, justified in hearing the Plaintiff’s claim, even if the dispute went beyond the strict legal relationship of the Parties, as long as it concerns a real question of substance.
In this case, the trial Court asked “whether from the facts pleaded in the Statement of Claim there is, indeed a dispute between the Parties in this Suit or whether the Plaintiffs are quarreling with themselves as submitted by learned defence counsel, and it held:
The Plaintiffs have sued for themselves and on behalf of Umudim-Ogbujiasili Kindred of Ezannaja Amadi Village of Oraukwu, against the named Defendants, who though members of the said Kindred, had gone into the “Obi” as claimed, which from their pleadings, belong to all the members’ family, demolished same and looted the content therein. From the said Pleadings, which is the focal point in this Application, a right to a relief, obviously, exist in the Kindred as a body against the named Defendants.
The Court of Appeal may not have specifically dealt with the issue of locus standi, however, it also held that the Appellants’ view that “the Respondents sued themselves is unacceptable” and I agree completely with these views expressed by the two lower Courts.
The Appellants centered their contention on the fact that the said land devolved from their “common ancestor” to Nkemadigo, but an averment in the Statement of Claim cannot be considered in isolation
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from the other averments, which put together, paint a clear picture of what the dispute is, and what part the Parties play.
The Respondents clearly averred in their Statement of Claim that after the land in dispute became the portion of Nkemeadigo, he built another homestead, and left the land in dispute, an Obi, as “a symbol of unity amongst all the descendants of Dimogbuftasilf”;
They also averred in paragraphs 31-36 of the Statement of Claim:
31. All the Parties submitted to the arbitration of Ezennaja Village Executive, which gave hearing to all the Parties, and gave their decision on 30/9/95, to which all the Parties in dispute gave sincere acceptance.
32. All the Parties in the dispute were given copies of the said decision and each expressed gratitude to the arbitrators.
33. The Kindred Members, the Umuada and Ndi lnyom did the “ILULU ONU” party as part of the traditional ceremony, which signifies cessation of hostilities and acceptance of verdict.
34. The late father of the Defendants, Jerome and his sons, contributed like every other member to the ceremony referred to.
35. The ceremony referred to above is sacred and revered. Having performed same, the Plaintiffs relaxed believing all is well.
36. Unfortunately, however, in a very embarrassing manner to the Kindred, the Arbitrators and all and sundry in the Village, in 1996 January, late Jerome and children demolished the small house, the Obi, in the center of the compound to put a storey-building.
In paragraph 38, they narrated how the late Jerome Odimegwa and his sons “demolished and looted the contents of the house”, which they listed, and that they also removed personal effects of Henry Ezumba listed in paragraph 39. They further averred that:
40. The Plaintiffs believing in the efficacy of dialogue as well as the “Iruru Onu”ceremony
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referred to above called for further arbitration.
41. While the Plaintiffs were dialoguing, the Defendants unfortunately were busy building. The climax was the burial of late Jerome Ddimegwa, the Defendants’ father on the land in dispute, which stands as an abomination.
42. It was at this point that it became obvious to the Plaintiffs that unless the coercive powers of the Court are invoked the Defendants would not respect the other members of the family.
Clearly, the Appellants may be members of the Kindred, however, the Kindred as a body had a stake in the dispute over the said Obi which they described as a “Symbol of Unity” amongst all of them. The truth or otherwise of the assertion is a matter left for the trial; as it is, the Respondents have locus standi to pursue their claims.
The Appeal lacks merit and is hereby dismissed. I affirm the decision of the Court of Appeal, including the orders it made that the case should be remitted to the Chief Judge of Anambra State.
OLABODE RHODES-VIVOUR, J.S.C.: Having had the opportunity to read before now the leading judgment just delivered by my learned brother Augie JSC. I am in full agreement with the reasoning and conclusion that the appeal lacks merit and is hereby dismissed.
Orders made by the Court of Appeal are affirmed.
OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, Augie, JSC just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that the appeal is unmeritorious and should be dismissed. I too will dismiss the appeal.
Appeal dismissed.
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JOHN INYANG OKORO, J.S.C.: I have had a preview of the judgment of my learned brother, Amina Adamu Augie, JSC just delivered. I am in complete agreement with him in his reasoning and conclusion that this appeal is devoid of merit.
Both parties in this appeal are ad idem that they are both descendants of a common ancestor known as Dimogbujiasili.
It is also on record that when dispute arose, the matter was submitted to the arbitration of Ezeannaja village Executives, which gave their decision on the matter on 30th September, 1995, in limine.
I agree with the submission of the Respondents that in considering the issue whether a party has locus standi, it is the statement of claim that the Court should look at. I have perused the statement of claim on record filed by the Respondents (as plaintiffs) and I agree with the findings of both the trial Court and the Court of Appeal, as affirmed by my learned brother, Amina Adamu Augie, JSC, that the Respondents have locus standi to institute this action.
It is instructive to note that a cause of action and standing to sue are linked to the issue of jurisdiction of a Court. If the plaintiff does not have a cause of action or the standing to sue, the Court cannot properly assume jurisdiction to entertain the matter.
With respect to family property as in the instant case, the law is that a member of a family has the capacity to sue to protect family property. Any member of a family whose interest is threatened by wrongful interference with the family property can sue to protect his interest. He can commence the action with or without the consent of other members of the family. If he does not act, he may find himself being held to be standing by when his rights were being taken away.
See Dadi v. Garba (1995) 8 NWLR (Pt. 411) 12; Babayeju v. Chief Ashamu (1998) 9 NWLR (Pt.567) 546:
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In the case of Mozie v. Mbamalu (2006) 15 NWLR (Pt.1003) 466 at 493 this Court, per Tobi, JSC held that “it is good law that members of a family can sue in respect of family property. This was the position of the two Courts below and they are right.”
I endorse the view expressed by the learned justice of the Court of Appeal that “the view canvassed for the Appellants that the Respondents sued themselves is not acceptable.” I am of the considered view that the suit of the Respondents does not only disclose a reasonable cause of action, the Respondents have locus standi or capacity to commence the action.
I agree that this appeal does not have merit and is consequently dismissed by me.
I affirm the decision of the Court below and abide the orders made in the lead judgment of my learned brother, Amina Adamu Augie, JSC.
Appeal Dismissed.
CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgement which my Lord, Augie, JSC, delivered now; I agree with His Lordship that this appeal is bereft of any merit. It, therefore, deserves to be dismissed.
Like His Lordship noted in the leading judgement, the appellants did not challenge the finding that the respondents had a reasonable cause of action. As such, they are deemed to have accepted the finding, NBCI v. Integrated Gas (Nig) Ltd [2005] 4 NWLR (pt. 916) 617; Iyoho v. Effiong [2007] 4 SC (pt.111) 90; Adedayo v. Babalola [1995] 7 NWLR (pt.408) 383. Accordingly, this Court would not disturb the said finding, Oshodi v Eyifunmi [2000] 13 NWLR (pt. 684)298, 332.
It is for these, and the more elaborate, reasons in the leading judgement that I too shall enter an order dismissing this appeal. Appeal dismissed. I abide by the consequential orders in the leading judgement.
Appearances
Kelechi Dunkwu, Esq. For Appellant
AND
J. R. Nduka, Esq. with him, R. E. Nduka, Esq. For Respondent
Appearances
AARTI STEEL NIGERIA LIMITED v. ALHAJI SABITU ADISA OTAPO & ORS
On Thursday, the 18th day of October, 2018
CA/IB/284/2013Before Their Lordships
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
FOLASHADE OJO Justice of The Court of Appeal of Nigeria
Between
Before Their Lordships
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
FOLASHADE OJO Justice of The Court of Appeal of Nigeria
Between
AARTI STEEL NIGERIA LTD Appellant(s)
AND
1. ALHAJI SABITU ADISA OTAPO
2. MR. BELLO KABIRU
3. MR. BELLO LUKMAN (for themselves and on behalf of Late Alhaji Yekinni Rafiu
Bello also known and called
Alhaji Yekinni Bello Rafiu)
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JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Ruling of High Court of Justice, Ogun State, Ota Judicial Division in Suit No HCT/147/2013 Between ALHAJI S. A. OTAPO AND (1) MR. BELLO KABIRU (2) MR. BELLO LUKMAN (3) AARTI STEEL NIGERIA LTD, delivered on the 4th day of July, 2013.
Briefly, the facts of the case are that the subject matter of this action is the property situate near Ogun State Housing Corporation Estate Ota, in the Ado Odo/Ota Local Government Area of Ogun State. The land said to be 3.124 Hectares was owned by Late Alhaji Yekinni Rafiu Bello. It is covered by certificate of occupancy dated 7/2/96 and registered as No 60 at page 60 in Vol. 522 in the Land Registry Abeokuta.
The Claimant/1st Respondent, a farmer and business-man of Iyedi Titun Osi quarters, Ota by his Writ of Summons and statement of claim filed on 11/2/2013 claimed that he bought 3 acres out of the total acreage of 7acreas from the 1st and 2nd Respondents formerly the 1st and 2nd defendants. By a sale transaction evidenced by a sale agreement dated 10/10/2005, the said sale which was filed in Court was pleaded as conferring ownership and right of possession of the land on the claimant.
It was stated that on the face of the agreement the transaction did not receive Governors consent as required by Section 22 of the Land Use Act. Also, the document though stamped, was not registered as required by Section 8 of the Land Instruments Registration Law Cap L. 53 Laws of Ogun State of Nigeria, 2006.
…………………….B…………………….
The claimant who is 1st Respondent in this Court commenced this action against the 2nd and 3rd Respondents and the Appellant for declaration of title, injunction and damages for trespass.
Upon being served with the originating process at the lower Court, the Appellant entered a conditional appearance and immediately filed a motion on notice on 23/4/13 for an order striking out the endorsement on the Writ of Summons and certain paragraphs of the statement of claim on the ground that the action disclosed no reasonable cause of action against the Appellant and further that the objectionable paragraphs of the statement of claim are neither pleadable nor admissible in evidence.
Both the claimant and the Appellant filed written addresses which were adopted at the hearing of the application.
At the conclusion of hearing, the learned trial Judge held that the application was incompetent and dismissed it on the ground that it is an abuse of Court Process, and also that it lacked merit.
The Appellant who is dissatisfied with the Ruling of the Lower Court appealed to this Court.
The Learned Counsel for the Appellant formulated five issues for the determination of the appeal. The issues are reproduced as follows:-
(1) Whether the Court below was right to hold that the grounds of the application before it did not raise issue of jurisdiction, to warrant being determined in limine (Distilled from Ground 1)
(2) Whether having regard to the applicable Rules of Court and well established practice, the Court below was not wrong when it held that the application was a demurrer and so the grounds of objection could only be appropriately raised by the statement of defence and that the summary procedure in Order 15 Rule 18(1)
…………………….C…………………….
is subject to the provisions of Order 22 rule 1. (Distilled from Ground 2)
(3) Whether the trial Court did not wrongly exercise its discretion when at that stage of the proceeding it refused to strike out from the statement of claim averments relating to unregistered instrument which is by law unpleadable and inadmissible in evidence (Distilled from Ground 5)
(4) Whether from the facts and in all the circumstances of the case, the decision of the Court below refusing to grant the appellants application was a discretion judicially and judiciously exercised. (Distilled from Grounds 3, 4 & 7)
(5) Whether in the circumstances of the case, the failure of the Court below to ensure that the exercise of its discretion was the outcome of a fair Judicial decision did not occasion miscarriage of Justice. (Distilled from Ground 6).
In his own case, the Learned Counsel for the 1st Respondent formulated two issues for the determination of the appeal. The said issues are reproduced as follows:-
(1) Whether or not the trial/lower Court wrongly exercised its judicial powers when His Lordship dismissed the Application of the Applicant/3rd Respondent and held that none of the grounds alleged lack of jurisdiction by the Court in order to avail the applicant the general position of the law that the issue of jurisdiction can be raised at any time.
(2) Whether or not the motion on notice at pages 53-72 of the record of Appeal filed by the Appellant was caught by demurer and same was an abuse of Court Process.
…………………….D…………………….
On 17/9/2018, when this appeal came up for hearing, the Court was informed that the 2nd and 3rd Respondents were represented in Court by Counsel on 14/3/2018 when the appeal was adjourned till 17/9/2018 for hearing.
The Learned Counsel for the Appellant while arguing the appeal stated that the appeal is against the ruling of the High Court of Ogun State delivered on 4/7/2013. The Notice of appeal was filed on 7/8/2013. The Appellants brief of argument was filed on 24/10/2013 and deemed properly filed on 13/10/2014. The Learned Counsel for the Appellant adopted and relied upon the Appellants brief of argument as his argument in urging that the appeal be allowed. He relied on the case of – AJAYI VS ADEBIYI (2012) ALL FWLR Part 634 pages 28 -31.
The Learned Counsel for the 1st Respondent in arguing the appeal referred to the 1st Respondents brief of argument filed on 20/11/2014 which was deemed as properly filed on 14/3/2018. He adopted and relied on the said brief as his argument in urging that the appeal be dismissed with substantial costs.
The Learned Counsel for the 2nd and 3rd Respondents was present in Court on 14/3/2018 when this appeal was adjourned till 17/9/2018 for hearing. He did not file any brief on behalf of 2nd and 3rd Respondents.
I have perused the issues formulated for the determination of the appeal by Counsel for the Appellant and that of 1st respondent. The issues are similar but the issues on behalf of the 1st Respondent encapsulates the issues formulated on behalf of the appellant. I will therefore rely on the said issues formulated on behalf of the 1st Respondent in the determination of this appeal.
…………………….E…………………….
ISSUES FOR THE DETERMINATION OF THE APPEAL
ISSUES 1 and 2 (Taken together)
Whether or not the trial/lower Court wrongly exercised its judicial powers when the trial Judge dismissed the Application of the Appellant/3rd Defendant and held that none of the grounds alleged lack of jurisdiction by the Court in order to avail the applicant the general position of the law that the issue of jurisdiction can be raised at any time. (Distilled from ground 1).
Whether or not the motion on notice filed on behalf of the Appellant filed on 23/4/13 was caught by demurrer and same was an abuse of Court process. (See pages 53 to 72 of the Record of Appeal. (Distilled from grounds 2 to 7).
The Learned Counsel for the Appellant referred to the motion on notice filed at the lower Court where it was contended that by its Writ of Summons the Claimant/1st Respondent has not by his Writ of Summons and Statement of Claim demonstrated that he has a reasonable cause of action to invoke the jurisdiction of the Court for the declaratory and other relief sought.
It was stated on behalf of the Appellant that the application was brought under the inherent jurisdiction of the Court and Order 15 Rule 18(1) of the High Court of Ogun State (Civil Procedure) Rules 2008 which enabled the Court to determine by summary process an action in which the statement of claim shows no cause of action. He also referred to the Ruling of lower where it was held that the application is an abuse of Court process.
…………………….F…………………….
The Learned Counsel for the Appellant submitted that the lower Court rather than consider the application on its merit, acted under a misconception of facts and misconception of the applicable law, when it held that the application is a demurrer which ought to await the filing of statement of defence and also that there is no issue of jurisdiction involved. He contended that the lower Court failed to appreciate that a challenge of the jurisdiction of the Court is implicit in a complaint that a Plaintiff has no cause of action. He relied on the following cases:-
A.G. FEDERATION VS. A. G. ABIA STATE (2001) FWLR Part 64 PAGE 277 PARAGRAPHS A C.
IKEJA HOTELS PLC VS. LAGOS STATE BOARD OF INTERNAL REVENUE (2005) ALL FWLR PART 279 PAGE 1260 AT 1274E.
SECTION 6 (6)(B)OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED). B. M. LTD VS. WOERMANN LINE (2009) 13 NWLR PART 1159 PAGE 1794.
BADEJO VS FEDERAL MINISTRY OF EDUCATION (1996) 8 NWLR PART 464 PAGE 15 RATIOS 12 AT PAGE 23 AND RATIOS 16 AT PAGE 24.
AKINTOLA VS SOLANA (1986) 2 NWLR PART 24 PAGE 596 AT 623 PARAGRAPHS F G.
It was also submitted on behalf of the Appellant that whenever the issue of there being no cause of action is raised, the jurisdiction of the Court is indirectly called to question and that has to be determined first before proceeding further.
The Learned Counsel for the Appellant went further in his submission that a claimant ought to reveal on the face of his statement of claim a legally recognizable interest in the subject matter of the action in order to assure the Court that he had legal grievance sufficient to invoke the jurisdiction of the Court.
…………………….G…………………….
He relied on the following cases:-
IBRAHIM VS. OSIM(1988) 3 NWLR PART 82 PAGE 257.
ADEFULU VS. OYESILE (1989) 5 NWLR PART 122 PAGE 377 IN RE-IJELU (1992) 9 NWLR PART 266 PAGE 414.
R. C. C. LTD VS. VEEPEE IND. LTD (2005) ALL FWLR PART 264 PAGE 816 AT 825G.
It was also submitted on behalf of the Appellant that where matters are not pleadable, the Court is obliged to strike out the Plaintiffs suit. It was argued that because the statement of claim failed to aver facts essential for conferring validity to the 1st Respondents root of title, i.e that the sale transaction received Governors consent, the reliefs sought by the 1st Respondent are not maintainable against the Appellant.
Finally Learned Counsel for the Appellant argued that the issues in this appeal be resolved in favour of the Appellant.
In his own response, the Learned Counsel for the 1st Respondent submitted that none of the five grounds in support of the application could avail the Appellant to raise the issue of jurisdiction. He relied on the following cases:-
UTB NIG. LTD VS. OZOEMENA (2001) 7 NWLR PART 713 AT 718.
ABIA STATE VS A. G. OF FEDERATION (2006) 7 SC PART 1 PAGE 51.
He went further in his submission that some of the five grounds, stated in support of the Appellants application cannot be determined without evidence being adduced in the matter. It was further argued that
…………………….H…………………….
a Court lacks jurisdiction to award what a party did not ask for and that the issue of non-registration of the 1st respondent/claimant???s title document can only be trashed out during trial when the Court will have opportunity to hear the evidence, look at the document and apply the law for its admissibility. On the issue of obtaining Governor???s consent, the Learned Counsel for the 1st Respondent submitted that it is premature since the trial is yet to commence.
On the issue of demurer the Learned Counsel for the 1st Respondent, submitted that the Appellant/Applicant failed woefully to place credible and compelling materials before the Court so as to entitle it to the reliefs sought. He argued that it is necessary for the Appellant to strictly comply with the mandatory provisions/rules of Court. He referred to ORDER 22 RULES 1 & 2 OF THE OGUN STATE, HIGH COURT (CIVIL PROCEDURE) RULES.
ORDER 15 RULE 18 (1) (Supra).
It was also submitted on behalf of the 1st Respondent that the Appellant failed to file its statement of Defence and other front loaded processes before filing the Preliminary Objection against the 1st Respondent’s suit. He relied on the following cases:-
BAMAIYI VS. ATT. GEN OF FEDERATION (2001) 12 NWLR PART 727 PAGE 468.
BEN O. NWABUEZE VS. JUSTICE OKOYE (1989) 4 NWLR PART 91 PAGE 664 AT 713.
ODUA VS. TALABI (1997) 10 NWLR PART 523 PAGE 1 AT 21. ATT. GEN ANAMBRA STATE VS OKEKE & ORS (2002) 10 NSCQR VOL. 2 PAGE 792 AT 805.
He also submitted that the proceedings in lieu of demurer rightly and legally compelled and/or mandate the Defendant such as the Appellant/Defendant in this case to file a Statement of Defence and from it isolate issues of law, it feels will determine the suit partially or wholly.
…………………….I…………………….
He relied on the following cases:
PROVOST LAGOS STATE COLLEGE OF EDUCATION & ORS VS. EDUN & ORS (2004) SC. PART II PAGE 17.
OMOREGBE VS. LAWANI (1980) 3-4 SC PAGE 108.
INAKOJU & 17 ORS VS. ADELEKE & 3 ORS (2007) 1 SC. PART 1 page 131 and 133 at Page 233 Paragraphs 25 – 35.
TABIOWO VS. DISU (2008) 7 NWLR PART 1087 Page 533 at 548, 549 Paragraphs B D and H – A.
THE REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST VS. J. K. OWODUNNI & ORS O.G.S.L.R. (1999) (2002) PAGE 145.
OMIN III VS. GOV. CROSS RIVER STATE (2007) VOL. 41 WRN PAGE 158 AT 192.
It was also argued on behalf of the 1st Respondent that demurer is different from objection to jurisdiction. The following cases were referred to:
NDIC VS. CBN (2002) 3 SCNJ PAGE 75 AT 89.
FADARE VS. ATT. GEN. OYO STATE (1982) 13 NSCC PAGE 52.
Learned counsel argued further that the application brought by the Appellant before the lower Court was anchored on technicality and he urged this Court not to allow undue technicality to defeat the course of Justice. He relied on the following cases:-
FAMFA OIL LTD VS ATTORNEY GENERAL OF FEDERATION (2003) 18 NWLR PART 852 PAGE 453 AT 471-472.
DUKE VS. AKPABUYO LOCAL GOVERNMENT (2005) 19 NWLR PART 959 PAGE 130 AT 135.
…………………….J…………………….
He finally submitted that the application of the Appellant is premature and an abuse of judicial process. He urged that the appeal be dismissed with substantial costs in favour of the 1st Respondent.
By an application filed on behalf of the Appellant before the lower Court on 23/4/2013, it prayed for an order striking out the endorsement on the Writ of Summons and the Statement of Claim on the ground that:
(a). The claim discloses no reasonable cause of action.
(b). It is scandalous, frivolous and vexatious.
(c). It otherwise constitutes an abuse of the process of Court.
The grounds relied upon by the Appellant are:-
(i). That although the 1st Respondent claimed to have acquired ownership and exclusive possession of the property in dispute on the basis of Sale Agreement dated 10/10/2005 which stated on its face that the transaction was to be effected pursuant to the provisions of the Land Use Act, he did not show that the transaction in fact received Governor’s consent as required by Section 22 of the Land Use Act, and therefore the transaction having been rendered unlawful, null and void by Section 22 and Section 26 of the said Act was not capable of conferring any legally recognizable right on the Claimant.
(ii). The said Sale Agreement being a registrable instrument which was not registered as required by the provisions of the Land Instruments Registration Law Cap L 53 Laws of Ogun State of Nigeria 2006 was void under Section 15 of the said Law and unpleadable and inadmissible in evidence under Section 16 of the Law and so the averments relating to it are liable to be struck out in limine.
(iii). In so far as the sale transaction was unlawful, null and void in line with Section 22 and 26 of the Act the averments relating thereto in the Statement of Claim, even if
…………………….K…………………….
proved, are not capable of establishing any legally recognizable interest in land.
(iv). Without a legally recognizable interest, the Claimant could not have suffered any legal grievance to invoke the jurisdiction of the Court.
The Application was brought under the inherent jurisdiction of the Court and Order 15 Rule 18(i) of the High Court of Ogun State (Civil Procedure) Rules 2008.
The 1st Respondent in his reaction filed counter affidavit and contended that the Appellant’s application constituted a demurer which has been abolished by Order 22 Rule 1 of the Ogun State High Court (Civil Procedure) Rules.
This will now lead me to ask the question What is a demurer proceeding?
In a demurer proceeding the basic essence is that the party raising same contends that even if all the allegations in the statement of claim are right, it still does not in law disclose a cause of action for the party contending to answer
The party who demurred would not proceed with his pleading but, having raised a point of law as to whether any case had been made out in the opponent’s pleading for him to answer, awaited the decision on that point. See BAMBE VS. ADERINOLA (1977) 1 SC. PAGE 1.
The application under consideration which led to this appeal was brought under the inherent jurisdiction of the Court and Order 15 Rule 18(1) of Ogun State High Court (Civil Procedure) Rules 2008 which states that:-The Judge may at any stage of the proceeding order to be struck out or amend any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that:-
(a) it discloses no reasonable cause of action or defence, as the case may be, or
(b) it is scandalous, frivolous or vexatious or
(c) it may prejudice, embarrass or delay the fair trial of the action, or
…………………….L…………………….
(d). it is otherwise an abuse of process of the Court, and may order the action stayed or dismissed or judgment to be entered accordingly, as the case may be. (2).--–
The contention of the Appellant is that the Claimant/1st Respondent has not by its Writ of Summons and Statement of Claim demonstrated that he has a reasonable cause of action to invoke the jurisdiction of the Court for the declaratory and other reliefs sought.
It is settled law that there must be a cause of action before an intending litigant can initiate any legitimate proceedings.
The contention of the learned counsel for the Appellant is that the 1st Respondent has not demonstrated that he has reasonable cause of action to invoke the jurisdiction of the trial Court for the reliefs sought. This is because although the 1st Respondent who claimed to have acquired ownership and exclusive possession of the property in dispute on the basis of Sale Agreement dated 16/10/2005 which stated on its face that the transaction was to be effected pursuant to the Provision of the Land Use Act but it was not shown that the transaction received Governors consent as required by Section 22 of the Land Use Act. Therefore the transaction having been rendered unlawful, null and void by Section 22 and 26 of the Land Use Act was not capable of conferring any legally recognizable right on the 1st Respondent.
It was also contended that the Sale Agreement being a registrable instrument which was not registered as required by the provisions of the Land Instruments Registration Law Cap L 53 Laws of Ogun State of
…………………….M…………………….
Nigeria 2006, was void under Section 15 of the said Law. It is unpleadable and inadmissible in evidence under Section 16 of the law.
Consequent upon the foregoing the averments relating to it in the Writ of Summons and Statement of Claim are liable to be struck out in limine.
The 1st Respondent has not shown that the contention of the Appellant lacks substance. In fact since it was not shown in any way that Sections 22 and 26 of the Land Use Act was complied with and the Land Agreement relied upon by the 1st Respondent was not shown to have been registered in accordance with the Provisions of the Lands Instruments Registration Law Cap. 53 Laws of Ogun State of Nigeria 2006, then the lower Court lacks jurisdiction to entertain the matter because the 1st Respondents claim disclosed no reasonable cause of action.
It is settled law, that there must be a cause of action before an intending litigant can initiate any legitimate proceedings. A suit is aimed at vindicating some legal right or claim and such legal right can only arise when certain material facts arise. It is only when facts establishing a civil right or obligation and facts establishing infraction or trespass on that right and obligation exist side by side that a cause of action is said to accrue. See the following cases:-
AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR PART 127 PAGE 369.
OSIGWE VS PSPLS MANAGEMENT CONSORTIUM LTD (2000) ALL FWLR PART 470 PAGE 607.
I am of the view that the 1st Respondent who desires to rely on a registrable instrument to buttress title in land must show clearly, the particulars of registration of such title. This is because Section 16 of the law provides that if a registrable instrument is not duly registered, it shall not be pleaded to ground or sustain title. If an unregistered registrable instrument is pleaded to establish title to land, such paragraph should be struck out.
…………………….N…………………….
See the following cases:-
AKINDURO VS. ALAYA (2007) ALL FWLR PART 381 PAGE 1653 AT PAGE 1666 H 1667 B.
AGBODIKE VS ONYEKABA (2001) FWLR PART 62 PAGE 1915.
OSSAI VS NWAJIDE (1978) 4 SC PAGE 207 PER SOWEMIMO JSC AT PAGES 211 213.
In the case of BADEJO VS FEDERAL MINISTER OF EDUCATION (1996) 8 NWLR PART 464 PAGE 15 it was held in ratios 12 at page 23 and 16 at page 24 as follows:
The Court under its inherent power may at any time of the proceedings order to be struck out or amend any pleading or the endorsement of any writ in the action or anything in any pleading or in the endorsement on the ground that it discloses no reasonable cause of action or defence, as the case may be and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. The power is the sanction for compelling parties to comply with the rules of pleadings and the practice of the Court relating thereto
The summary procedure of disposing of an action is only appropriate to cases which are plain and obvious, so that any judge can say at once that the statement of claim as it stands is insufficient even if proved, to entitle the Plaintiff to what he asks.
Also in AKINTOLA VS SOLANA (1986) 2 NWLR PART 24 PAGE 596 AT 623 PARAGRAPH F G, it was held amongst others that-
It is high time our trial Court (and Counsel for the Plaintiff especially) begin looking critically at the pleadings and where appropriate giving judgment on the pleadings if no triable issue of fact has been raised. There the Plaintiffs case should be considered on its pleadings and the applicable law. Where the Plaintiffs statement of claim does not disclose a cause of action that is where, even if all the allegations of fact therein averred are established, yet still the Plaintiff would not be
…………………….O…………………….
entitled to the relief sought, therefore instead of filing a statement of defence, the defendant should move the Court to have the case dismissed.
All that I have been saying boils down to the fact that whenever the issue of there being no cause of action is raised, the jurisdiction of the Court is indirectly called to question and it has to be determined first before proceeding further. This is because the issue of jurisdiction is a threshold issue and a lifeline for continuing any proceedings. If there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted.
The application which led to this appeal was set out earlier in this Judgment. I have also showed that the said application is a challenge to the jurisdiction of the trial Court to entertain the 1st Respondents claim at the lower Court.
But before I conclude on this Judgment, I want to emphasise the fact that there is a difference between an objection to jurisdiction and a demurer. In a demurer proceedings there should be a statement of claim in place, the facts of which the applicant would be required to admit before bringing his objection. An objection to the jurisdiction of the Court can be raised at any time, even when there is no pleading filed and a party raising such an objection need not bring application under any rule of Court.
The application can be brought under the inherent jurisdiction (as done by the Appellant in this case) therefore once the objection to the jurisdiction of the Court is raised, the Court has inherent power to consider the application even if the only process of Court that has been filed is the Writ of Summons and affidavit in support of an interlocutory application.
…………………….P…………………….
In this case as at the time the Appellant filed its application at the lower Court to object to the jurisdiction of the lower Court to entertain the 1st Respondents suit, the Writ of Summons and Statement of Claim had been filed and served, the application supported by affidavit with a counter affidavit was already filed. The fact that no statement of defence was filed should not have made the Learned trial Judge to hold that the application which objected to the jurisdiction of the Court is a demurer. The trial Court was therefore wrong to have dismissed the application.
Consequent upon the foregoing, the two issues in this appeal are resolved against the 1st Respondent and in favour of the appellant.
In the result, with the resolution of the two issues for determination in this appeal in favour of the Appellant and against the 1st Respondent, it is my view that there is merit in this appeal and it is hereby allowed.
The Ruling of the lower Court in Suit No: HCT/47/13 ALHAJI S. A. OTAPO VS MR. BELLO KABIRU & ORS delivered on 4/7/2013 is hereby set aside. And in its place, the Application of the Appellant before the lower Court is hereby granted. The Claimant/1st Respondents claim at the lower Court is hereby struck out.
The Appellant is entitled to costs which is fixed at N200,000.00 against the Claimant/1st Respondent.
Appeal Allowed.
HARUNA SIMON TSAMMANI, J.C.A.: I read in draft form the judgment delivered by my learned brother, Jimi Olukayode Bada, JCA.
It is not in doubt, that a plea that a claim does not disclose a reasonable cause of action entails the competence and therefore the jurisdiction of the Court to hear and determine same. This is so because,
…………………….Q…………………….
where there is no reasonable cause of action, the Court would be acting in vain if it proceeds to entertain such a suit. See Drexel Energy & Natural Resources Ltd & Ors v. Trans International Bank Ltd & Ors (2008) 18 NWLR (pt. 1119) 388 and RINCO Const. Co. Ltd v. Vee Pee Ind. Ltd & Anor (2005) 9 NWLR (pt.929) 85.
In such a situation, the action would not be justiciable. The consequence is that, it would be struck out for non-disclosure of reasonable cause of action. Since it has a direct effect on the jurisdiction of the Court to hear and determine the matter, it is not an issue of demurrer. I am therefore of the view, in agreement with my learned brother in the lead judgment, that the Appeal has merit and is accordingly allowed. I abide by the consequential orders made by my learned brother.
FOLASADE AYODEJI OJO, J.C.A.: I have read before now the judgment just delivered by my learned brother Jimi Olukayode Bada JCA. His Lordship has dealt extensively with all the issues arising for determination in this appeal and I agree with the reasoning and conclusion therein.
I however wish to reiterate that where a suit discloses no reasonable cause of action as provided for under Order 15 Rule 18(1) of the High Court of Ogun State Civil procedure Rules, the provisions of Order 22 Rule I relating to demurrer would not be applicable. In the ruling which is the subject mater of the present appeal, the trial judge at page 108 of the Record of Appeal found as follows:
I must state that I do not agree with the interpretation applicants counsel sought to place on Order 15 Rule 18(1) of the Rules. That provision cannot be read in isolation from Order 22 Rule 1 which says no demurrer shall be allowed. A party is expected to raise points of law by his pleading and apply to have the points of law set down for hearing. I have looked at the grounds relied upon for this application and none of the grounds alleged lack of jurisdiction by the Court in order to avail the applicant the general provision that the issue of jurisdiction can be raised at any time. Some of the
…………………….R…………………….
grounds stated In support of this application cannot be determined without evidence adduced in the matter. The ground that the claim discloses no reasonable cause of action can only be upheld if it is shown that the pleadings is so defective that nobody can understand what claim he is required to meet.”
As stated by the lower Court, Order 15 Rule 18(1) of the Ogun State High Court Civil Procedure Rules 2008 cannot be read in isolation from Order 22 Rule 1 of the same Rules. It is trite that in constructing a section of a statute, it should be done on the footing that such section is part of a greater whole.
See ADEWUMI & ANOR VS A.G. OF EKITI STATE & ORS (2002) 2 NWLR Pt.751, 474; ( 2002) LPELR 3160 @ 48 Paras E-G.
In F.M. B. N. VS. OLLOH 2002 9 NWLR (Pt. 773) 475; (2002) LPELR – 1271 @ 11-13 Paras E A, the Supreme Court, Per UWAIFO JSC held as follows:
The law is that where there is a special provision in a statute, a later general provision in the same statute capable of covering the same subject matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared. To do otherwise is to indirectly use a general provision to alter the intention to provide specially by way of an exception for a subject-matter. See The Vera Cruz (1884-1885)10 App. Cos. 59 at p. 68 per Earl of Selbourne L.c.; BlackpoolCorporation V. State Estate Co. Ltd. (1922) 1 AC 27 at p. 34 per Viscount Haldane. The Latin maxim is: Generalisclausula non porrigituradea quae antea special itersuntcomprehensa (A general clause does not extend to those things which are before specially provided for). In Bamgboye v. Administrator-General (1954) 14 WACA 616,
…………………….S…………………….
Bairamian, J, explained the principle when he observed at p. 619 as follows: It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject-matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind this rule is that the legislature in making the special provision is considering the particular case and expressing its will in regard to that case; hence the special provision forms an exception importing the negative; in other words the special case provided for in it is excepted and taken out of the general provision and its ambit; the general provision does not apply. In the words of Lord Selbourne L.C., in Seward v. Vera Cruz’ (1884) 10 App. Cos. 59 at 68, Now of anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold the earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention so to do… The above rule of construction applies equally, of course, when the special and the genera/provisions are enacted in the same piece of legislation: See Dryden v. The Overseers of Putney (1876)1 Exch. 223 at 232.
Being a general rule, the provisions of Order 22 Rule 1 of the High Court of Ogun State (Civil Procedure) Rules should not be construed to extend to circumstances specifically and earlier on provided for by Order 15 Rule 18(1) of the same Rules.
For ease of reference Order 15 Rule 8(1) provide as follows:
The judge may at any stage of the proceedings order to be struck out or amended any
…………………….T…………………….
pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –
(a) It discloses no reasonable cause of action or defence, as the case maybe; or
(b) it is scandalous, frivolous or vexatious; or
(c) It may prejudice, embarrass or delay the fair trial of the action;
(d) It is otherwise an abuse of the process of the Court, and may order the action stayed or judgment entered accordingly.”
Order 22 Rule 1 of the High Court of Ogun State (Civil Procedure) Rules 2008 provides as follows:
(1) No demurrer shall be allowed.
The learned authors of Haisburys Laws of England, 3rd Edition, Volume 36 at Paragraph 583 at page 389 – 390 stated the law as follows:
It may be presumed that words used are not used in a statute without a meaning and not tautological or superfluous, and so effect must be given, if possible to all the words used, for the legislative is deemed not to waste its words or say anything in vain.”
It is my view that the provisions of Order 15 Rule 18(1) of the High Court of Ogun State Civil procedure Rules were not made in vain but to make provision specifically for circumstances that are not classified as demurrer proceedings
In DANTSOHO VS. MOHAMMED (2003) 6 NWLR (PT. 817) 457 @ 492, Paras G-A, the Supreme Court Per UWAIFO JSC held as follows:
I must say that it is neither proper nor safe to interpret Section 5(2) without the necessary insight. Furthermore, it is the law that in constructing any provision of a statute, a Court ought and is indeed bound to consider any other parts of the statute which throw light upon the intention of the legislative and which may serve to show that a particular provision ought not be constructed as it would if considered alone without reference to such other parts of the statute.
…………………….U…………………….
See COLQUNOUN V. BROOK (1889) 14 App. Cas. 493 at 506 Per Lord Herschel. The same principle was stated by this Court in several cases including AQUA LTD. VS. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT. 91) 622 A T 641 642 Per WALI JSC and SALAMI VS. L. E. P. B. (1989 5 NWLR (Pt. 123) 539 A T 550-551 Per OBASEKI JSC.
It is also pertinent to note the provisions of Order 22 Rule 4 of the said High Court of Ogun State (Civil Procedure Rules which state as follows:
(4) The Court or a judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in such case or in the case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a judge may order the action to be stayed or dismissed or judgment to be entered accordingly as may be just.
From all of the foregoing, it is therefore very clear that there are exceptions to the provisions of Order 22 Rule 1 which contain the general provision abolishing demurrer proceedings.
In the application dated 23rd April, 2013 and filed on the same date at the lower Court, the appellant prayed for an order striking out the endorsement on the writ of summons and the statement of claim and dismissing the action on the grounds that
a) The action discloses no cause of action;
b) It is scandalous, frivolous and vexatious;
c) It otherwise constitutes an abuse of the process of the Court.”
The said Motion which was brought pursuant to the inherent jurisdiction of the Court and the provisions
…………………….V…………………….
of Order 15 Rule 18(1) of the High Court of Ogun State (Civil Procedure) Rules 2008 is at page 53 – 54 of the Record of Appeal. To my mind, that motion is within the exception to the general rule contained in Order 22 Rule 1 which abolishes demurrer generally.
In the light of all I have said above, I agree with my learned brother that the lower Court came to a wrong conclusion when it held that the application of the appellant was a demurrer. It is for this and the fuller reasons given by my learned brother, Jimi Olukayode Bada JCA that I also allow this appeal and set aside the ruling of the lower Court in SUIT NO. HCT/47/13 delivered on the 4th of July, 2013.
Appearances
Mr. S. A. Onadele with him, E. A. Onadele, Esq. For Appellant
AND
Mr. S. O. Ola – for 1st Respondent.
2nd & 3rd Respondents were represented in Court on 14/3/2018 when the appeal was fixed for hearing on 17/9/2018.
Appearances
AJUWON & ORS v. GOVERNOR OF OYO STATE & ORS
On Friday, May 07, 2021
SC.556/2020Before Their Lordships
John Inyang Okoro Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Between
Judgment
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): In the Local Government elections conducted on 12th March, 2018 by the Oyo State Independent Electoral Commission (OYSIEC) (herein the 7th Respondent), the Appellants were elected for a definite term of 3 years after assuming the respective offices they were each elected into.
Ten (10) months into the terms of 3 years, the Appellants were to remain in office, the 1st Respondent purporting to act pursuant to Sections 11 and 21 of the Oyo State Local Government Law 2001, as amended, dissolved (in May, 2019) the democratically elected Local Government Councils. The Appellants were removed from their offices of, either, the Chairman of the Local Government Council (LGC) or as Councilors in the LGCs.
In anticipation of the intent of the Respondents to dissolve the duly elected LGCs, the Appellants firstly challenged in Court of law, the constitutionality of the powers vested in the 1st, 5th & 6th Respondents by Sections 11 & 12 of the Oyo State Local Government law to dissolve a duly elected LGC and remove democratically elected Local Government Chairman and/or Councilors and replace them with handpicked non-elected Transition/Caretaker Committees for being in violation of Section 7(1) of the 1999 Constitution, as amended. Their challenge came by way of Originating Summons.
The trial Court agreed with them that such power vested on the 1st, 5th & 6th Respondents to dissolve duly elected LGC and remove democratically elected Chairmen and Councilors, and replace them with unelected handpicked Transition/Caretaker Committees were ultra vires and unconstitutional. The trial High Court granted several declaratory reliefs and issued injunctive orders in support of the declaratory reliefs in favour of the Appellants.
On 29th May, 2019, in contempt of the judgment and orders of the Oyo State High Court, the 1st Respondent dissolved the elected LGCs in Oyo State. He then appointed unelected Care-Taker/Transition Committees to run and manage the affairs of the Local Governments throughout the State. Thereafter, just in mere fait accompli, the Respondents, after their contemptuous affront to the decision and orders of the Oyo State High Court, decided to appeal the judgment - apparently (maybe) to fulfil all righteousness.
On 15th July, 2020 the Court of Appeal (hereinafter called “the lower Court”) allowed the appeal, set aside the judgment and the orders made by the High Court, and consequentially struck out the suit for disclosing no reasonable cause of action. The lower Court had, in so doing, allegedly considered only the averments in the Respondents’ counter-affidavit. It is against this decision that the Appellants have appealed on 7 grounds of appeal.
The Respondents, by way of motion on notice filed on 4th November, 2020, raised Notice of Preliminary Objection to the competence of the appeal, which they wanted dismissed “in limine for being incompetent”. The motion was not moved nor was it argued. On the same 4th November, 2020 the Respondents (apparently 1st-6th Respondent, independent of the 7th Respondent) filed their joint brief wherein in paragraph 3 they challenged the competence of some specific grounds of appeal; namely: Grounds 2, 3, 4 and 5; and only particular (II) of Ground 7 of the Appellants’ 7 grounds of appeal.
The purported Preliminary Objection did not challenge the competence of grounds 1 & 6, and ground 7 (except its particular (ii)). The attack on particular (II) of ground 7 is on the ground that it raises a fresh issue. I am yet to see the fresh issue allegedly raised by particular (II) of ground 7 which in substance complains that the lower Court was wrong for, on the principle of stare decisis electing not to be bound by this Court’s decision in GOVERNOR OF EKITI STATE v. OLUBUNMO (2017) 3 NWLR (pt. 1551) 1
I want to believe that the Preliminary Objection, purportedly argued by the Respondents (1st-6th Respondents) in their joint brief of argument, was brought pursuant to Order 2, Rule 9 of the extant Rules of this Court. A preliminary objection is only raised to the hearing of the appeal, and not to a few grounds of appeal. The purport of preliminary objection is the termination or truncation of the appeal in limine.
A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal when there are other grounds to sustaining the appeal; which Purported Preliminary Objection is, therefore, not capable of truncating the hearing of the appeal. In such a situation, a preliminary objection is not the appropriate procedure to deploy against defective grounds of appeal when there are other grounds, not defective, which can sustain the hearing of the appeal: ADEJUMO & ORS v. OLUDAYO OLAWAIYE (2014) 12 NWLR (pt. 1421) 252 (SC); (2014) LPELR -22997 (SC).
It is my firm opinion that, since this is a Court of justice as well as law, a respondent cannot by improper procedure complain about the impropriety of the appellant’s process. Afterall, he who comes to justice must come with clean hands. A competent preliminary objection is the one raised in accordance with the due process of law -Order 2 Rule 9(1) of the Rules of this Court in the instant case. The purported preliminary objection, being incompetent, shall be and is hereby discountenanced in the instant appeal.
Let me briefly highlight the basis of the decision of the lower Court that has agitated the filing of this appeal. The Appellants, as Plaintiffs, in their Amended Originating Summons had averred in their supporting affidavit in paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17 & 18 to wit: 9. That the Government of Oyo State in 2016 amended the Local Government Law by creating 35 Local Council Development Areas as contained in the Oyo State of Nigeria Gazette No. 21 Vol. 41 of 20th October, 2016 to be manned by democratically elected individuals.
A copy of the Said Gazette is attached as “Exhibit A”. 10. That sometime in the year 2018 the Oyo State Independent Electoral Commission (OYSIEC) conducted election into the Local Government Councils and 35 Local Council Development Areas in Oyo State. 11. That I and other claimants participated in the said election by contesting for the position of Chairman and Councilors in our respective Local Government Areas. 12.
That I and the other claimants were elected as Chairmen and Executive Officers of Local Government Councils and Local Council Development Areas during the said election conducted by the Oyo State Independent Electoral Commission (OYSIEC) on 12th May, 2018. 13. That I and the other claimants having been declared the winner of our respective Local Government Areas and Local Council Development Areas were issued certificate of return by the Oyo State Independent Electoral Commission (OYSIEC).
Attached herewith as Exhibits B, B1, B2, B3, B4, B5, B6, B7, B8, B9 and B10 are the certificates of returns issued to some of the claimants. 14. That pursuant to our election and issuance of certificate of returns, myself and other claimants were subsequently sworn in as Chairmen and Councilors of our respective Local Government Councils and Local Council Development Areas. 15. That upon assumption of Office, we began to discharge our duties and functions in accordance with the relevant laws. 16.
That after the 9th March, 2019 election into State Houses of Assembly and Governorship election, the 1st defendant and top officers of his political party had a meeting on the political developments in Oyo State. 17. That at the meeting, the 1st defendant informed all the members at the meeting of his plan to remove the Chairman and vice chairman of the 33 Local Government Areas in Oyo State, dissolve the 33 Local Government Councils and appoint a transition Committee comprising loyal members of the party so as to restructure the political landscape of his party in the State. 18.
That the defendants are planning to dissolve all the Local Government Councils and Local Council Development Areas Oyo State and replace them with appointed persons known as transition committee. 19. That in view of the above, we then sought the legal advice of our Counsel, Mr. Kunle Sobaloju, Esq. in respect of the said plans of the defendants to remove the chairmen and vice chairmen and dissolve the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State. 20. That I was informed by our Counsel Mr.
Kunle Sobaloju, Esq., on Friday, 15th March, 2019 at his office at 30, Old Lagos Road, Ibadan and I verily believe him as follows: (i) That the defendants have no power or authority to dissolve any democratically elected Local Government Council in Oyo State or suspend or remove any person democratically elected into any Local Government Council and Local Development Areas in Oyo State. (ii) That Section 11 and Section 21 of the Local Government Law of Oyo State 2001 (as amended) violates Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is therefore unconstitutional, ultra vires, null and void. (iii) That any law, order or directive empowering the Governor Of Oyo State or any person whosoever to dissolve Local Government Councils and Local Council Development Areas in Oyo State whose tenure is yet to expire is unconstitutional, ultra vires, null and void. (iv) That the 1st defendant lacks the power to dissolve the executive council of all or any of the 33 Local Governments and 35 Local Council Development Areas in Oyo State. (v) That the 1st, 5th and 6th defendants also lack power to remove a democratically elected Local Government Chairman and Councilor in Oyo State. (vi) That it is necessary to approach this Honourable Court for the determination of the questions raised in our originating summons by which his suit was commenced. 21.
That unless the questions raised in the originating summons is determined and reliefs sought are granted, the unlawful, unconstitutional and wrongful provisions of Section 11 and Section 21 of the Local Government Law of Oyo State, 2001 (as amended) will be employed by the defendants to carry out their plan to dissolve all democratically elected Local Government Council in Oyo State in disregard to the Constitution and to the detriment of myself and other claimants.
The Defendants, the Respondents herein, filed a joint counter-affidavit wherein in one breath, in paragraph 3 particularly, they denied as false all the averments in paragraphs 2, 16, 17, 18, 20(i), (ii), (iii), (iv) & (v), 21, 22 and 23 of the supporting affidavit. In paragraph 4 of the counter-affidavit the Defendants further aver that “paragraphs 17 and 18 of the supporting affidavit are speculative and futuristic”. In another breath, they averred in paragraph 5 thereof - 5.
That in response to paragraph 20 (i, ii, iii, iv, v) of the claimants’ affidavit in support of the Originating summons, I know as a fact that the Local Government Law of Oyo State empowers the 1st Defendant to dissolve the executive of the Local Government Councils.
In apparent acknowledgment of the unconstitutionality of a similar provision in the Local Government Administration Law of Ekiti State struck down in GOVERNOR OF EKITI STATE v. OLUBUNMO (2017) 3 NWLR (pt. 1551) 1, the Defendants, in paragraphs 6 of the counter-affidavit, wit - 6. That I was further informed by the 2nd defendant at the same time and place. i. That of recent, the defendants have become aware of the decision of the Supreme Court in respect of a similar provision empowering the defendants especially the 1st defendant to dissolve local government councils in the state. ii.
That the defendants are aware that the Supreme Court has in its recent decision against the Government of Ekiti State struck down a similar provision as the ones being challenged in this suit as unconstitutional. iii. That the defendants are law abiding institutions of Government and will always abide by the Rule of Law and lawful judgments of superior Courts of records especially the Supreme Court of Nigeria. iv.
That the defendants acknowledge the Claimants were elected into office on 12th May, 2018 in a validly conducted election and recognize that the Claimants have a 3 year tenure under their enabling Local Government laws of Oyo State. v. That other than as provided by the constitution, and by constitutionality recognized means, the defendants do not intend to summarily dissolve the Councils of Local Government Councils, Local Council Development Areas, nor suspend the Claimants from office as suggested by the claimants. vi.
That the Court remains the arbiter of disputes between parties and the interpreter of statutes, whose interpretation and pronouncement, and the defendants have always sought to abide with and where the defendants disagree, only explore the unconstitutional process of appeal. viii. That it will be in the interest of justice that this Honourable Court resolves the Claimants’ Originating Summons and the reliefs sought therein in favour of constitutionality and the Rule of Law.
It is thus clear that both the claimants and Defendants are ad idem that the matter the claimants were “bringing to the attention of the Court to indicate the rule of law and get the unlawful conduct stopped” - to borrow the words of Lord Diplock in INLAND REVENUE COMMISSIONERS v. NATIONAL FEDERATION OF SELF-EMPLOYED AND SMALL SCALE BUSINESSES LTD (1982) A.C. 617 (HL) at 644, is the unconstitutionality of the law permitting or empowering the Governor to dissolve a democratically elected Local Government Council and appoint Caretaker Committee in its place.
The claimants in their Amended Originating Summons had entreated the trial Court to determine the following questions, that is- 1.
Whether the provision of Section 11 of the Local Government Law of Oyo State, 2001 (as amended) which empowers the Executive Governor of Oyo State to nominate Transitional Committee to run the affairs of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State of which the claimants are democratically elected Chairmen, Councilors and members otherwise than in accordance with relevant constitutional and statutory provisions and which empowers the Oyo State House of Assembly to determine the term of the transitional committee is in breach of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is thus unconstitutional, ultra vires, null and void and of no effect whatsoever? 2.
Whether the provision of Section 21 Of the Local Government Law of Oyo State, 2001 (as amended) which empowers the Oyo State House of Assembly to recommend the suspension or removal of Chairman or Vice Chairman of a Local Government or Local Council Development Area in Oyo State is in breach of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is thus unconstitutional, ultra vires, null and void and of no effect whatsoever? 3.
Whether in view of the combined effect of Sections 7 and Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the provisions of Section 10 of the Local Government Law of Oyo State, 2001 (as amended) the 1st, 5th and 6th defendants have the power to appoint Transition Committee for a term determinable by the 6th defendant contrary to the democratic Local Government System guaranteed by the constitution?
They thereafter sought the following reliefs - 1.
A DECLARATION that Section 11 of the Local Government Law of Oyo State, 2001 (as amended) are in conflict with Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and thus unconstitutional, ultra vires, null and void and of no effect to the extent that it empowers the Executive Governor of Oyo State to nominate a Transitional Committee to run the affairs of the Local Government Council and which empowers the Oyo State House of Assembly to determine the term of the transitional Committee contrary to the democratic system of Local Government guaranteed by the constitution. 2.
A DECLARATION that the provision of Section 21 of the Local Government Law of Oyo State, 2001 (as amended) which empowers the Oyo State House of Assembly to recommend the suspension or removal of a chairman or vice chairman of a Local Government or Local Council Development Area in Oyo State is in breach of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is thus unconstitutional, ultra vires, null and void and of no effect whatsoever. 3.
A DECLARATION that any law, order or directive empowering the Governor of Oyo State, the Oyo State House of Assembly or any person whatsoever to suspend or remove a Chairman, Vice Chairman or any democratically elected into Local Government Council or Local Council Development Area in Oyo State or to appoint a transition committee or any committee to run the affairs of Local Government in Oyo State before the expiration of the tenure of democratically elected members of the council or for an indefinite period is in conflict with Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and thus unconstitutional, ultra vires, null and void. 4.
A DECLARATION that by virtue of the combined effect of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the provisions of Section 10 of the Local Government Law of Oyo State, 2001, the 1st and 6th defendants have no power to suspend or remove a Chairman, Vice Chairman or any other person democratically elected into the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State before the expiration of their tenure. 5.
A DECLARATION that by virtue of the combined effect of Section 7 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the provisions of Section 10 of the Local Government Law of Oyo State, 2001 (as amended) the 1st and 6th Defendants have no power to nominate or appoint a transitional committee to run the affairs of any local government for any desired term in breach of the aforesaid constitutional provisions which guarantees a democratic system of local government. 6.
A DECLARATION that the tenure of the claimants is statutorily set at 3 years with effect from the date they took their respective oath of office. 7.
AN ORDER OF PERPETUAL INJUNCTION restraining the 1st Defendant, his servants, agents, privies or any person whomsoever from dissolving the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State or removing, suspending, terminating and/or doing anything whatsoever to truncate the tenure of the claimants except in accordance with the provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). 8.
AN ORDER OF PERPETUAL INJUNCTION restraining he Defendants, their servants, agents, privies or any person whosoever from dissolving the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State or doing anything to truncate the effective administration of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State. 9.
AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their servants, agents, privies or any person whomsoever from withholding or diverting the allocations, funds and resources of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State or doing anything to truncate the effective administration of the 33 Local Government Councils and 35 Local Council Development Areas of Oyo State. 10.
AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their servants, agents, privies or any person whomsoever from appointing a transitional committee to run the affairs of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State.
The lower Court was told by the Counsel for the Claimants (respondents before that Court) that “the cause of action in this case was primarily the application of Sections 11 and 21 of the Local Government Law of Oyo State and the decision of the 1st (Defendant) to dissolve the democratically elected Local Government Chairmen and Councilors. That this is clear from the questions for determination, the accompanying affidavits and the reliefs sought.
In other words, that the issue for the determination in this case before the trial Court boils down to the validity of Sections (11 and 21) of the Local Government Law and nothing more”. That is, whether Sections 11 and 21 of the Local Government Law of Oyo State were not inconsistent with the provisions of Section 7 of the Constitution. From paragraph 6 of the counter-affidavit, the Defendants seemed to agree with the Claimants that the only issue in the Originating Summons is: whether Sections 11 and 21 of the Local Government Law are inconsistent with 7 of the 1999 Constitution, as amended.
The Defendants had prefaced their averments with the acknowledgement that this Court, in GOVERNOR OF EKITI STATE v. OLUBUNMO & ORS (supra), had struck down provisions of the Local Government Administration Law of Ekiti State similar to Sections 11 and 21 of the Oyo State Local Government Administration Law.
In its judgment at pages 562-563, the lower Court seemed to acknowledge “that it may well be so, – that (the) Claimants - had approached the trial Court for the determination of the constitutionality and validity of Sections 11 and 21 of the Local Government Law of Oyo State”. It nonetheless insisted that “before the Court could proceed on the determination of the question(s) presented before it by the (Claimants), there must be facts which will act as trigger for the (Claimants) to exercise their right of action”.
It insisted, even inspite of the Claimants contending, and the Defendants seemingly conceding, that Sections 11 and 21 of the Local Government Law, as enacted by the House of Assembly of Oyo State were ultra vires Section 7 of the Constitution, that there was not enough cause of action shown by them to cloth the Claimants the right to challenge or question the validity and constitutionality of the provisions.
This is coming notwithstanding the Defendants fence-sitting admission that similar provisions in the Ekiti State Local Government Administration Law were struck down by this Court for being unconstitutional and invalid. The lower Court, in my view, had clearly got it wrong here and consequently came to the wrong conclusion that the Claimants’ “claim in the Originating Summons was premised on mere speculation, conjecture and suspicion thereby not disclosing any reasonable cause of action”.
The existence of Sections 11 and 21 of the Oyo State Local Government Law is as real and factual, as the existence of Section 7 of the Constitution (the grundnorm) that proclaims, in its Section 1, its supremacy to any other law, including the Oyo State Local Government Law, and declares poignantly, in Sub-section (3) thereof that - (3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void. The Claimants, the present appellants, were duly elected as Local Government Chairmen and Councilors in their respective Local Government Areas.
They were incumbents in those their respective offices. The counter-affidavit did not deny these facts. They had the right to remain in and perform their respective offices for the three year tenure the electorates gave them as part of their mandate. They had alleged that unless Sections 11 and 21 of the Local Government Law were nullified, as being ultra vires Section 7(1) of the Constitution and therefore unconstitutional; the Defendants may invoke them to arbitrarily truncate their democratic mandate.
That is the question of the rule of law they had drawn the attention of the Court of law to, and were seeking the Court to stop the alleged unlawful conduct of the Defendants. The Courts, under Sections 6(6)(b) and 17(2)(e) of the Constitution, have been set up to grant to easy accessibility thereto entertain all questions between persons and Government or authority “for the determination of any question as to the civil rights and obligations of that person”.
The general qualification for judicial review of administrative actions is that the Claimant or the applicant must have the standing or locus standi to challenge the administrative action. He must have an interest cognissable in that he has been sufficiently affected by the administrative action; and for the case to be “ripe” for adjudication or judicial consideration the issues involved must be real, present and imminent; and not merely abstract or hypothetical: Cases and Materials on Administrative Law in Nigeria - lluyomade & Eka, 2nd Ed. (1992) page 98.
In the instant case, the enactment of Sections 11 and 21 of the Local Government Law by the House of Assembly (6th Defendant) empowering either the Governor (1st Defendant) or the House of Assembly to truncate the tenure of democratically elected Local Government Councils, and in their place to appoint unelected Caretaker Committees, poses real threat to those elected Local Government Chairmen and Councillors. The issue, viewed particularly viz-a-viz Section 7(1) of the Constitution that guarantees the system of democratically elected Local Government Councils, is real and live.
It is neither hypothetical nor academic. When a party has locus standi to request adjudication he is said to have the right, in law, to seek the adjudication upon a legal grievance or cause of action: ADESANYA v. THE PRESIDENT OF NIGERIA (1981) 2 NCLR 358 at 393. The cause of action discloses the facts from which it could be ascertained whether there is an infringement or violation of the civil rights or obligations of the Claimant which, if established before the Court, entitles him to the relief or remedy sought: FAWEHINMI v.
AKILU & ANOR. (1987) 12 SC 136; (1987) 4 NWLR (pt. 67) 797 (SC); OLORIODE v. OYEBI (1984) 1 SCNLR 390; THOMAS v. OLUFOSOYE (1986) 1 NWLR (pt. 18) 669. The Claimants’ cause of action and their right to approach the Court to seek redress were even more real and imminent than that of the Plaintiff in FAWEHINMI v.
BABANGIDA (2003) 3 NWLR (pt. 808) 604 (SC) who, a lawyer, upon the constitution and appointment of a judicial commission of inquiry called the Human Rights Violations (Investigation) Commission, by the President of the Federal Republic of Nigeria, pursuant to the powers said to have been derived under Section 1 of the Tribunals of Inquiry Act, 1966, challenged the constitutionality and validity of the Act.
He had sought, amongst others, a “declaration that the Tribunals of Inquiry Act No. 41, 1966 is not an enactment on any matter with respect to which the National Assembly is empowered to make laws under the Constitution of the Federal Republic of Nigeria, 1999 and it accordingly took effect as a law (deemed) enacted by the House of Assembly of a State” - the National Assembly not having been empowered by the said Constitution to enact laws in respect of residual matters outside both the Exclusive and the Concurrent Lists under Section 4 of the Constitution.
Recognising his locus standi and right in law to raise the issue of the rule of law this Court held that since every Nigerian has a duty to ensure that we are governed by laws validly enacted, in accordance with the Constitution; a citizen who challenges the constitutionality of a statute, allegedly enacted in a manner inconsistent with the Constitution, has locus standi to raise the issue: his cause of action being the alleged unconstitutionality of such statute.
The alleged unconstitutionality of a provision(s) of a statute gives the citizen the right to direct and a easy accessibility to the Court to be heard by the Judge on the issue: CENTRE FOR OIL POLLUTION WATCH v.
NNPC (2018) LPELR - 50830 (SC). The judicial powers of the Court, by virtue of Section 6(6) (b) of the Constitution, after all, “extend to all matters between persons, or between Government and authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.” The Claimants, in the instant case, derived their mandate from the electorates (and not the Defendants) to manage the affairs of their respective Local Government Councils for 3 years on behalf of the people who elected them.
Sections 11 and 21 of the Local Government law, which they alleged are inconsistent with Section 7(1) of the Constitution, posed and continue to pose real, imminent and ominous threat to the security of their tenure. Sections 11 and 21 of the Law, unless lawfully quashed, remain a perpetual threat hanging over their heads like the sword of Damacles, thus subjecting them to the whims and caprices of the Governor and the House of Assembly.
The danger, if not hazard, posed by Section 11 and 21 of the Local Government Law to the system of democratically elected Local Government Councils was/is real and imminent.
It was/is not speculative, as the lower Court erroneously held to deny the claimants access to Court. It is not enough, the lower Court reasoned, in order to deny the claimants the right of access to the Court, that they merely averred that they heard, by rumour, the intent of the Governor, the 1st Defendant, to dissolve the democratically elected Local Government Councils in the State; remove the Chairmen and Councillors, and replace them with a system of unelected Caretaker/Transition Committees.
The existence in the statute books, or corpus juris, of Oyo State of the provisions in Sections 11 and 21 in the Local Government Law itself poses real, actual and legal threat to the security of tenure, and indeed the existence, of a system of democratically elected Local Government Councils. It is interesting to note that the Defendants, in their counter-affidavit, acknowledged that this Court had struck down a similar provision in Ekiti State Local Government Administration Law (in the OLUBUNMO case (supra)).
The provisions were said to be inconsistent with Section 7 of the Constitution and invalid -a situation analogous to the situation in FAWEHINMI v. BABANGIDA (supra). The lower Court, in the circumstances, should have been more liberal than the stance it took.
In this regard, therefore, a Court, when it has been called upon to decide whether a claimant or an applicant for judicial review has sufficient interest in the matter to which the suit is related, should take into consideration, in exercise of its judicial discretion, the nature of the litigant, the extant of his interest in the issues raised, the remedy he seeks to achieve and the nature of the reliefs sought: R. v. INSPECTORATE OF POLLUTION & ANOR, EXP. P.
GREENPEACE LTD. (No. 2) (1994) 4 All E.R. 329. The question the lower Court should have asked itself, but failed to ask, is: whether the claimants were genuine claimants seeking the Court to decide whether Sections 11 and 21 of the Local Government Law were ultra vires Section 7(1) of the Constitution? His Lordship, Pats Acholonu, JSC in LADEJOBI v.
OGUNTAYO (2004) 15 NWLR (pt. 904) 149 (SC) at page 171 stated that it is important to always bear in mind that ready and easy access to the Court for the determination of his civil rights and obligations by a genuine claimant is one of the attributes of civilised legal system. For a genuine Claimant, not a busy-body, easy accessibility to the Court for the determination of his civil rights and obligations is a basic constitutional right, by virtue of Sections 6(6)(b) and 17(2)(c) of the Constitution.
It is for this reason that his Lordship, Pats Acholonu, JSC (supra) warned that limiting the opportunity for citizens to seek redress in Courts of law by rigid adherence to the principle of locus standi (which is whether a person has the standing to sue and seek redress in Court) could be dangerous. At the time the claimants (Appellants herein) took out their Originating Summons Sections 11 and 21 of the Local Government Law, in view of Section 7(1) of the Constitution, posed a real, imminent and actual threat to their tenure as elected Chairmen and Councillors.
They were, in my view, genuine claimants seeking an answer as to whether Sections 11 and 21 of the Local Government Law were/are inconsistent with the Constitution. The mere fact that they apparently sought to know and/or insist that they be governed by laws validly enacted in accordance with the Constitution makes them genuine claimants like the plaintiff in FAWEHINMI v. BABANGIDA (supra). In the English case: INLAND REVENUE COMMISSIONERS v.
NATIONAL FEDERATION OF SELF-EMPLOYED AND SMALL BUSINESSES LTD (HL) (supra) Lord Diplock was of the opinion that the plaintiffs, who requested adjudication on whether a public authority can condone illegality by abdicating or shirking its statutory responsibility, had genuine and real cause of action; and that they had sufficient interest in ensuring that public authorities or corporations submit to the rule of law, and further that no public authority has power to, arbitrarily and with impunity, break the law or the general statute.
This INLAND REVENUE COMMISSIONERS’ case (supra) is almost on all fours with what the claimants (Appellants herein) had sought at the trial Court. They had raised the question: whether the Governor of Oyo State and the House of Assembly of Oyo State, respectively the 1st and 6th Defendants, can, with impunity, breach the Constitution of the Federal Republic of Nigeria and/or whether by outright outlawry they earned a right not to submit themselves to the rule of law? In MILITARY GOVERNOR OF LAGOS STATE v.
OJUKWU (1986) 1 NWLR (pt. 18) 621 (SC); (1986) LPELR-3186 (SC) at 21-22, Obaseki, JSC, speaking about the rule of law stated thus - The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the frame-work of recognised rules and principles which restrict discretionary power which Coke colourfully spoke as “golden and straight and of law as opposed to the uncertain and crooked cord of discretion”. See 4 Inst. 41.
More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by Judges who are independent of the executive.
The suit challenging the near absolute discretion, in the toga of arbitrary powers, given to the Governor and the House of Assembly by Sections 11 and 21 of the Local Government Law, to dissolve duly elected Local Government Councils in democratically conducted Local Government elections, which provisions vesting these powers are said to be ultra vires and inconsistent with Section 7(1) of the Constitution cannot be said to be speculative, as the lower Court erroneously held.
Accordingly, the decision or order of the lower Court striking out the suit and consequentially setting aside the decision and orders of the High Court of Oyo State (in the suit No. 1/347/2019, delivered on 6th May, 2019) made in favour of the claimants for, allegedly, not disclosing any reasonable cause of action/or and sufficient interest for approaching the trial Court, is hereby set aside.
It appears, from page 564 of the records, that the only distinction the lower Court found between the instant case and the GOVERNOR OF EKITI STATE v.
OLUBUNMO & ORS (supra) is the fact that; while in the OLUBUNMO case “the Governor of Ekiti State actually dissolved the Local Government Councils and removed the Chairmen, there is no such claim in this case”, and that “the claim here is that (Governor) planned to dissolve the councils and remove the (claimant) from office” and further that “there is no fact pleaded in the affidavit in support of the Originating Summons that the (Governor) planned to dissolve the councils”. It is on these grounds that the lower Court found that the suit was founded on speculation and mere conjecture.
The Respondents, capitalising on that finding, submitted “that the lower Court rightly distinguished the fact of the case in GOV. EKITI STATE v. OLUBUNMO from the fact of this case herein which is based on speculative apprehension” that the claimants will be removed from their respective offices by the dissolution of the Local Government Councils “without any verifiable facts as to the positive acts from the (Defendants) that threaten their offices”.
I had earlier in this judgment opined that the mere existence in the statute books of Oyo State of the provisions of Sections 11 and 21 of the Local Government Law, enacted in conflict, or inconsistent, with Section 7 of the Constitution, is like the Sword of Damacles hanging over the head of the claimants, and thus constituting or posing a real and imminent threat or danger to the security of the tenure they enjoyed by the fact of the mandate they each received from the electorates in consequence of the democratic elections.
The Respondents’ Counsel seemed to have spinelessly shifted their position. Their clients, the Defendants Counselled by them, had in their counter-affidavit averred that they knew “as of fact that the Local Government Law of Oyo State empowers the Governor to dissolve the executive of the Local Government Councils” and that they know, also as of fact, that “the Supreme Court has in its recent decision against the Government of Ekiti State struck down a similar provision as the ones being challenged in this suit as unconstitutional”.
From this point thenceforth, the honourable thing the defence counsel had to do was to sum up his professional courage and submit to judgment, the issues in GOVERNOR OF EKITI STATE v. OLUBUNMO (supra) and the instant case being substantially the same, on the basis of stare decisis in the principle of judicial precedence. The defence counsel (particularly at the lower Court and here), however, persisted inspite of the admissions in their counter-affidavit above referred.
By so doing they, as officers of the Court, enjoined by Rule 30 of the Rules of Professional Conduct for Legal Practitioners, 2007, “not to do any act or conduct himself in any manner that may - delay or adversely affect the administration of justice, had buckled under. A counsel, when he appears in Court in a matter in his professional capacity, shall not deal with the Court otherwise than candidly or fairly. In presenting a matter to the Court in that capacity, he “shall disclose any legal authority in the jurisdiction known to him to be directly adverse to the position of his client”.
In that capacity, also, counsel before the Court in a matter, shall not “promote a case which to his knowledge is false”. See Rule 32(1), (2)(a) & 3(j) of the same 2007 Rules of Professional Conduct. The counter-affidavit has seriously indicted the defence Counsel in this regard.
Consistency is the rule of the game. A party is not allowed to approbate and reprobate on one issue: COMPTROLLER GENERAL OF CUSTOM & ORS v. GUSAU (2017) 4 SC (pt. II) 128; (2017) 18 NWLR (pt. 1598) 353 (SC). No matter how powerful the client is or viable the brief, a counsel should always be worth his professional honour and pride to speak the truth and conduct the matter professionally. It is always right to follow the scripture and the teaching: what does it profit a man to gain the whole world and lose his soul?
The lower Court’s distinction of GOVERNOR OF EKITI STATE v. OLUBUNMO & ORS (supra) from the instant case is just mere distinction without a difference. The issues in both cases are whether the Governor of a State can dissolve a democratically elected Local Government Council and appoint his handpicked lackeys, constituting them as Caretaker or Transition Committee, to administer and manage the affairs of the Local Government in an uncouth and unbridled impudence to Section 7 of the Constitution, providing that “the system of Local Government Council is under this Constitution guaranteed”.
It was held in GOVERNOR OF EKITI STATE v.
OLUBUNMO (supra) that Section 23B of the Local Government Administration of Ekiti State (similar in all intents and purpose to Sections 11 and 21 of the Oyo State Local Government Law) was not intended to ensure the existence of a system of democratically elected Local Government Council, but merely to snap their continued existence by their substitution with caretaker committee; that the provision was enacted in clear breach of Section 7(1) of the Constitution, and further that to that extent it (Section 23B, supra) cannot co-habit with Sections 7(1) and 1(3) of the Constitution read together.
Several other previous decisions of this Court on the same point were cited with approval. They include EZE & ORS v. GOVERNOR, ABIA STATE & ORS (2014) 14 NWLR (pt. 1462) 192 (SC); ATTORNEY-GENERAL, PLATEAU STATE v. GOYOL (2007) 16 NWLR (pt. 1059) 94 (SC); ATTORNEY-GENERAL, BENUE STATE v. UMAR (2008) 1 NWLR (pt. 1068) 311 (CA). The law on this point or issue is now well established, and it is no longer a scholarly secret that a democratically elected Local Government Council does not exist at the pleasure, whims and caprice of either the Governor or the House of Assembly.
The misconception by the State authorities that the constitution does not intend to grant and guarantee autonomy to the Local Government is only a brain wave nurtured by sheer aggrandisement and meglomaniac instinct to conquer and make the Local Government mere parastatals of the State. That is the very mischief Section 7(1) of the Constitution has set out to address, and it must be so read and construed purposefully. The Constitution and its provisions are to be read and construed broadly and liberally to promote their purpose: NAFIU RABIU v. THE STATE (1980) 8-11 SC 130; ONYEMA v.
OPUTA (1987) 6 SC 362 at 371. Thus, as Nweze, JSC, had put it in GOVERNOR OF EKITI STATE v OLUBUNMO (supra), the intendment of the Constitution is to vouchsafe the inviolability of the sacred mandate which the electorate, at that level, democratically donated to the Local Government Chairman and Councillors EZE & ORS v. GOVERNOR, ABIA STATE (supra).
Finally, I agree with the Appellants, the claimants at trial, that the lower Court was wrong not to follow and be bound by the authoritative pronouncements of this Court in GOVERNOR OF EKITI STATE v. OLUBUNMO (supra) on the core issue before it. That is whether the Governor of Oyo State can dissolve democratically elected Local Government Councils and replace them with unelected Caretaker Committees; which question this Court had previously answered negatively, and firmly too.
I will not conclude this appeal without commenting on the disturbing ugly face of impunity displayed by the Governor of Oyo State, 1st Respondent herein, on 29th May, 2019, tantamounting to executive lawlessness, outrightly and vehemently condemned by this Court in THE MILITARY GOVERNOR OF LAGOS STATE v. OJUKWU (supra). This Court has always insisted that the Nigerian Constitution is founded on the rule of law; the primary meaning of which is that everything must be done according to law.
The trial Court on 6th May, 2019 issued its judgment in the suit of the Appellants, as claimants; and granted to them the declaratory reliefs and the injunctive orders sought in their Originating Summons. In exercise of their inalienable constitutional right of appeal, assured also by Sections 241 and 242 of the Constitution, the Defendants, the Respondents herein which included the Governor of Oyo State, filed their joint Notice of Appeal on 21st June, 2019 to express their dissatisfaction with the decision of the trial Court to the Court of Appeal.
But before then, particularly on 29th May, 2019, the Governor of Oyo State, herein the 1st Respondent, had issued imperial directives dissolving all democratically elected local Government Councils in Oyo State in spite of the subsisting judgment of Oyo State High Court in the suit No. 1/347/2017. I repeat, the Governor of Oyo State was the 1st Defendant in that suit.
Series of applications were filed by the judgment creditors, the present Appellants, to restrain, particularly the 1st Respondent (the Governor), from embarking on the self-help designed to contemptuously frustrate the judgment of the High Court. He was not dissuaded. He proceeded in his imperial omnipotency to continue in his untrammeled, albeit invidious contemptuous, disregard of subsisting judgment of the High Court. It is unthinkable that a democratically elected Governor would embark on these unwholesome undemocratic tendencies.
These tendencies no doubt endanger democracy and the rule of law.
It is almost becoming a universal phenomena that the democratically elected Governors have constituted themselves a specie most dangerous to democracy in this Country. They disdainfully disregard and disrupt democratically elected Local Government Councils and appoint their lackeys as caretaker committees to run affairs of the Local Governments. It should be reiterated as Abdullahi, PCA and Ndukwe-Anyanwu, JCA did say, respectively in ABUBAKAR v. A. G., FEDERATION (2007) 3 NWLR (pt. 1022) 601 (CA) at 619 and A. G. BENUE STATE v.
UMAR (CA) (supra) at 363, that an elected person is not an employee of anybody except the electorate that voted him in. It is only the electorate that can fire him. Democratic elections should always be sacrosanct in this Country, like in any other Country, for democracy to thrive. Local Government Chairman and Councillors, being persons duly elected by the people cannot just be removed and their councils dissolved whimsically and arbitrarily by any other elected persons in clear abuse of their office and powers. It is not right in law and under the Constitution to do that.
This is a proper case for invocation of Section 22 of the Supreme Court Act, 2004. The Claimants/Appellants were elected and were to hold their respective offices for 3 years commencing from 12th May, 2018 - the tenure which has since elapsed. Their tenure was summarily, albeit illegally and unconstitutionally, truncated on 29th May, 2019 upon the Governor’s directive. They had, each, at least 23 months to run out their term of 3 years. Since they can no longer be reinstated to complete their respective terms; the Appellants, on the basis of ubi remediurn cannot go without any remedy.
On the authority of A.G. BENUE STATE v. UMAR (SC.199/2007 of 15TH April, 2008); GOVERNOR OF EKITI STATE v. OLUBUNMO & ORS (supra) together with Section 22 of the Supreme Court Act, it is hereby ordered that the Claimants/Appellants be each paid the salaries and allowances they were each entitled to be paid for the balance of the period from 29th May 2019 ending on 11th May, 2021, when the respective tenures they were elected for would end. The 1st Defendant/Respondent, Government of Oyo State, shall forthwith pay the said salaries and allowances of the claimants/Appellants as ordered.
The Attorney-General of Oyo State, the 2nd Respondent herein (being also an authority or person charged mandatorily or obligated by Section 287 of the Constitution to enforce decisions and orders of Courts), shall cause to be filed, on or before 7th August, 2021 an affidavit (under the hand of the incumbent of that office) attesting to the payment of the salaries and allowances hereby ordered to be paid to the Claimants/Appellants in compliance with this order(s).
Costs at N20,000,000.00 shall be paid to the Appellants by the 1st Respondent. Appeal allowed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have read in draft, the judgment of my learned brother, EJEMBI EKO, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal has merit and should be allowed.
The facts of the case have been adequately summarized in the lead judgment. I adopt the summary. His Lordship has also dealt most comprehensively with the issues in contention in this appeal. I can hardly improve on the exercise. I shall however make some brief comments for emphasis and to show my support.
In setting aside, the judgment of the Oyo State High Court delivered on 6/5/2019 and striking out the appellants’ Amended Originating Summons filed on 8/4/2019, the Court below held, inter alia, per Tsammani, JCA: “On that note, I have come to the conclusion that the Respondents’ claim in the Originating Summons is premised on mere speculation, conjecture and suspicion thereby not disclosing any reasonable cause of action.
In the instant case, the affidavit in support of the Originating Summons does not disclose the existence of any legal controversy between the Respondents and the Appellants. … without a reasonable cause of action, the Court cannot exercise jurisdiction over the matter… The suit not having disclosed a reasonable cause of action is incompetent and liable to be struck out.”
What is a reasonable cause of action?
In the case of Thomas vs Olufosoye (1986) NWLR (Pt. 18) 669 @ 682 His Lordship, Obaseki, JSC stated thus: “Lord Pearson in Drummond – Jackson Vs British Medical Associated (1970) 1 WLR 688; (1970) 1 ALL ER 1094 C4 defined “a reasonable cause of action as meaning a cause of action with some chance of success when only the allegations in the pleading are considered.” The practice is clear, So long as the statement of claim or the particulars disclose some question fit to be decided by a Judge or Jury the mere fact that the case is weak and not likely to succeed is no ground for striking it out… where no question as to the civil rights and obligations of the plaintiff is raised in the statement of claim for determination the statement of claim will be struck out and the action dismissed.” A cause of action has also been defined as: “Every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the Court.
It does not comprise every piece of evidence which is necessary to be proved.” See: S.P.D.C. Nig. Ltd. & Anor. vs X.M. Fed. Ltd and Anor. (2006) LPELR-3047 (SC) 11-14 E-F; (2006) 16 NWLR (Pt. 1004) 189.” See also: Lasisi Fadare & Ors Vs A.G. Oyo State (1982) 1 ALL NLR (Pt. 1) 4 @ 41: Rinco Construction Co. Ltd. Vs VeePee Industries Ltd. & Anor. (2005) LPELR-2949 (SC) @ 14 E-G.
Both parties in this appeal are ad idem as to the fact that, by their Amended Originating Summons, the appellants were seeking a determination as to the validity of Sections 11 and 21 of the Local Government Law of Oyo State, 2001 (as amended) vis-a-vis Section 7 of the 1999 Constitution, as amended.
Section 7(1) of the 1999 Constitution, as amended provides: “The system of local government by democratically elected local government councils is under this constitution guaranteed;
and accordingly, the Government of every State shall, subject to Section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and function of such councils.” (Underlining mine) Section 1 (1) and (3) of the Constitution provides: “1. (1) This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (3) If any other law is inconsistent with the provisions of this Constitution, the Constitution shall prevail, and that other law shall, to the extent of the inconsistency be void.” Now, Section 11 of the Local Government Law of Oyo State empowers the 1st respondent to set up a 7-member transitional committee, one of whom shall be the chairman to run the affairs of the Local Government Council where its tenure has expired and no election has been held to reconstitute it or where it has become “impractical to immediately conduct elections” to fill the vacancies thereby created.
Section 21 further empowers the 1st respondent to suspend or remove from office, any democratically elected chairman or vice chairman. The appellants herein were democratically elected chairmen and councillors and represent all other democratically elected chairmen and councillors of the Local Government Areas and Local Government Development Areas of Oyo State, who had been sworn into office and, at the time of the suit, were already discharging the functions of their office.
By their averments in the affidavit in support of their Amended Originating Summons, there was an imminent threat of the dissolution of the Local Government Councils and the imposition of a hand-picked transition committee to run the affairs of the council for an unspecified period. It was the contention of the respondents that the allegation was speculative and unfounded and therefore could not found a cause of action. The lower Court, as observed earlier, agreed with them. With the greatest respect to the Court below, this cannot be correct.
In determining whether the suit discloses a reasonable cause of action, the Court must have recourse to the originating processes alone i.e. the Writ of Summons and Statement of Claim or the Originating Summons and support affidavit. What the originating process must show is that there is a question fit to be decided by the Court and that the applicants have a legal right to be protected.
In the circumstances of this case, I am of the considered view, that the mere existence of Sections 11 and 21 of the Local Government Law of Oyo State, as amended, is like the sword of Damocles hanging over the appellants’ heads, waiting to be wielded at the whims and caprices of the 1st Respondent. Section 6(6) (b) of the 1999 Constitution, as amended, provides: “6.
The judicial powers vested in accordance with the foregoing provisions of this Section - (b) shall extend to all matters between persons, or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.” The Constitution of the Federal Republic of Nigeria, 1999, as amended, is the Grundnorm. It is the fountain from which all other laws derive their legitimacy. It admits of no rivals, as shown in Section 1(1) and (3) thereof.
A determination by the Court as to whether Sections 11 and 21 of the Local Government Law of Oyo State are in violation of Section 7 of the Constitution, is a live issue and certainly constitutes a reasonable cause of action. As I have observed, the mere existence of those provisions and their potential invocation by any governor at any time, to truncate their tenure as democratically elected chairmen and councillors, constitutes a cause of action. Their tenure of office is a right they can protect.
I agree entirely with my learned brother, EJEMBI EKO, JSC, that Sections 11 and 21 of the Local Government Law of Oyo State 2001, as amended, are in clear violation of Section 7 of the 1999 Constitution, as amended. Pursuant to Section 1(3) of the Constitution, the said provisions are null and void to the extent of their inconsistency with Section 7 thereof.
For these and the more detailed reasoning in the lead judgment, I find merit in this appeal. It is accordingly allowed by me. I adopt all the consequential orders made including the order on costs. Appeal allowed.
JOHN INYANG OKORO, J.S.C.: My learned brother, Ejembi Eko, JSC, afforded me the opportunity of reading before now, the lead judgment just delivered and I entirely agree with his reasons and conclusion. I shall make a few comments of my own in support of the lead judgment.
The main issue in this appeal is whether in the light of Section 7 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Executive Governor of Oyo State can rely on Sections 11 and 21 of the Local Government Law of Oyo State, 2001 (as amended) to dissolve a democratically elected Local Government Council and replace them with Unelected Caretaker or Transitional Committee.
The Supremacy of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is provided in Section 1(1) and (3) thereof to the effect that if any other law is inconsistent with the provisions of the Constitution, such law shall to the extent of the inconsistency be void. See the case of Akpambo-Okadigbo v Chidi (No.1) (2015) 10 NWLR (pt. 1466) 171 at 200; Coca-cola (Nig) Ltd v. Akinsanya (2017) 17 NWLR (pt 1593) 74 at 117-118, Kayili v Yilbuk (2015) 7 NWLR (pt 1457) page 26 at 55 – 56.
The existence and administration of Local Government Councils in Nigeria are guaranteed by Section 7 of the Constitution and their functions enumerated in the Fourth Schedule thereto and such other functions as may be conferred on the council by the House of Assembly of a State. Any law therefore which seeks to limit the full exercise of powers provided under Section 7 of the 1999 Constitution is in contravention of the Constitution and is to the extent of such contravention, void.
In this appeal, Sections 11 and 21 of the Local Government Council Law of Oyo State purports to empower both the Oyo State House of Assembly and the Executive Governor of Oyo State to truncate the tenure of democratically elected Local Government Officials for no reason whatsoever.
They are inconsistent with the provision of Section 7(1) of the Constitution and therefore void to the extent of such inconsistency. Consequently, the act or contemplated act of the Governor, relying on these void provisions to dissolve the democratically elected Local Government Councils before the expiration of their tenure is a nullity. This Court cannot allow it to stand.
This appeal succeeds and is hereby allowed by me. I abide by the consequential orders made by my learned brother in the lead judgment. Appeal Allowed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: The present appeal is against the judgment, of the Court of Appeal, Ibadan Judicial Division, delivered on July 15th, 2020 in appeal No. CA/IB/300/2019. By the judgment in-question, the Court below, Coram J. O. Dada H. S. Tsammani and F. A. Ojo, JJCA, set aside the judgment of the trial High Court of Oyo State, delivered on and struck out the originating summons filed by the Appellant.
BACKGROUND FACTS The Appellants had been duly elected as chairmen and councillors of Local Government Councils and Local Council Development Areas in Oyo State. The election was duly conducted on May 12th, 2018 by the Oyo State Independent Electoral Commission (the 7th Respondent herein). However, in March, 2019 the 1st Respondent summaries dissolved the said Oyo State Local Government Councils and the Local Council Development Areas and replaced them with appointed caretaker/transition committees pursuant to Sections 11 and 21 of the Local Government Law of Oyo State, 2001, as amended.
Not unnaturally, the Appellants were utterly aggrieved, thus filed the suit vide an originating summons, there seeking against the Respondents the following declaratory and injunctive reliefs: …
The parties having settled their respective pleadings, the suit proceeded to trial, at the close of which, the trial Court delivered the vexed judgment to the conclusive effect. In line with the above
Not unexpectedly, the Respondents did not take kindly to the vexed judgment of the trial High Court, thus appealed to the Court of Appeal, Ibadan Judicial Division. On the said July 15th, 2020, the Court below delivered the vexed judgment thereof to the conclusive effect: Having resolved that the Respondents’ claim did not disclose any reasonable cause of action, I am of the view that, it is of no use I delving into issue three (3) distilled for determination by the Appellants (sic).
In any case, I had in the course of resolving issues 1 and 2, considered the case of the Governor of Ekiti State V. Olubunmo (supra) upon which the learned the case before him. I had pointed out the distinction between that case and the case under consideration. I therefore do not see the need in repeating myself there. In any case, having resolved that, the case did not disclose any reasonable cause of action, the Court below had cost the jurisdiction to hear and determine same. It would therefore be a matter of academic exercise to proceed further on the point.
Having thus considered, it is my view that this appeal has merit. It is accordingly allowed. I therefore set aside the judgment of the Oyo State High Court of justice sitting in Ibadan delivered on the 6th day of May, 2019 in suit No. 1/347/2019. Consequently, the Amended Originating Summons filed on the 8th day of April, 2019 is hereby struck out. I make no order as to cost.
The instant appeal, as alluded to above, is against the said judgment of the Court below.
On April 10th, when the appeal ultimately came up for hearing, the learned counsel on both sides of the divide were accorded the opportunity to address the Court and accordingly adopt the articulated argument contained in the respective briefs thereof.
Most particularly, the Appellants’ brief of argument settled by Yusuf Ali, SAN on September 24th, 2020, spans a total of 34 pages. At page 7 thereof three issues have been couched:…
On the part thereof, the 1st-7th Respondents’ unpaginated brief, settled by Samuel Oyadoyin, Esq. On November 4th, 2020, actually spans a total of 46 pages.
At pages 4 to 15 (paragraphs 3.0 to 3.28) of the brief in question, deals with the Respondents’ Notice of preliminary Objection to the competence of the appeal.
Pages 15 to 46 of the said brief, deals with the 3 issues on the merits. DETERMINAION OF THE 1ST-6TH RESPONDENTS’ PRELIMINARY OBJECTION Undoubtedly, the pith of the 1st-6th Respondents’ grouse vide the preliminary objection in question is strictly in regards to on grounds 2, 3, 4, 5 and 7 of the Appellants’ Grounds of Appeal, thereby challenging the competence of the appeal curiously enough, grounds 1 and 6 of the notice of appeal have not been objected to.
Yet, the law is well settled per adventure, that the essence of preliminary objective on is to challenge the competence of an appeal in its entirety. Thus, once a preliminary objection is upheld, the appeal is liable to be truncated and struck out in limine. Contrariwise, however, once there are other grounds that can conveniently sustain the appeal, a preliminary objection ought not be filed. Instead, a notice of motion seeking to strike out the apparently defective grounds need to be filed. See SPDC VS. AMADI (2011) 6 SCN 183 @ per Rhodes Virour, JSC @ 196. In DADA VS.
DOSUNMU (2006) 19 NWLR (pt. 1010) 134; (2006) LPELR 909 (SC), this Court aptly reiterated the trite fundamental doctrine: Failure to file a motion on notice as required by the rules of Court affects the competence of the objection as raised in the respondent’s brief and as such, counsel to the appellant had no obligation to file a reply thereto – the said objection being incompetent. Rules of Court are meant to be obeyed so as to ensure that justice is done to the parties and the Court is saddled with the responsibility of administering same.
Per Onnoghen, JSC (as he then was) @ 17 paragraphs E-F.
In the circumstance, the 1st-6th Respondents’ preliminary objection being adjudged to be grossly incompetent, same is hereby summarily struck by me.
DETERMINATION OF THE APPEAL ON THE MERITS Of the three issues in question, the third issue is most instructive viz: 3. Whether the Court below reached a proper decision by not allowing the decision of the Supreme Court in the case of Governor, Ekiti State Vs. Olubunmo (2017) 3, NWLR (Pt. 1551) whose facts were on all fours with the facts of the present case and there were no valid legal grounds to distinguish the case from the present case.
A critical, albeit dispassionate, consideration of the circumstances surrounding the case of GOVERNOR, EKITI STATE VS. OLUBUNMO (Supra) and the instant case, has made me appreciate that the two cases are arguably on all fours with one another.
Fundamentally, the issues in both cases are whether or not the Governor, as Chief Executive of the State thereof has the power to dissolve, truncate or suspend a democratically elected Local Government Council and unilaterally appoint his cronies, thereby constituting and investing them as Caretaker Committee to administer the affairs of the Local Government Councils. Not unexpectedly, this Court aptly held in GOVERNOR, EKITI STATE VS.
OLUBUNMO (Supra), that the system of Local Government Council has been duly guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 as amended: In other words, Section 23B (Supra) is violative of, and in conflict with, Section 7(1) of the Constitution in (Supra). Hence, it is bound to suffer the fate of all laws which are in conflict with the Constitution. Section 1(3) thereof Nigerian Army Vs. Yakubu (supra). Per Nweze, JSC @ 34-35 paragraphs E-C.
In the instant case, it is obvious, that the controversial Sections 11 and 21 of the Oyo State Local Government Law (supra) were purportedly designed to sabotage and truncate the democratically elected Local Government System in the State. Undoubtedly, Sections 11 and 21 of the Oyo State Local Government Law (Supra) are violently in conflict with the fundamental provisions of Sections 7(1) and 1(3) of the 1999 Constitution, (Supra).
It is trite, that every arm of Government, be it the Legislature, the Executive, or the Judiciary, has the onerous duty to accord unreserved deference to, comply with, protect, preserve, and defend the grundnorm- the Constitution. As aptly reiterated by this Court: “To act contrary to the provisions of the Constitution will not, if properly brought to the notice of this Court, be condoned but such an act will invite the proper sanctions and reliefs.” See IGBE VS. GOVERNOR OF BENDAL STATE (1983) LPEL-1443. Per Obaseki, JSC @31 paragraphs C-E.
In the circumstances, the third issue ought to be, and same is hereby resolved in favour of the Appellants, against the Respondents.
Hence, against the backdrop of the foregoing postulation, and the well detailed reasoning and conclusion reached in the lead judgment, I too hereby allow the appeal, and set aside the vexed judgment of the Court below. I abide the consequential orders, inclusive of the N20,000,000.00 costs, justifiably awarded in favour of the Appellants, against the 1st Respondent.
ADAMU JAURO, J.S.C.: I have had the advantage of reading in draft, the lead judgment just delivered by my learned brother, Ejembi Eko, JSC. I am in complete agreement with the reasoning and conclusion contained therein to the effect that the appeal is meritorious.
The Appellants by their originating summons and accompanying affidavit challenged the provisions of Sections 11 and 21 of the Amended Local Government Law of Oyo State in light of Section 7 (1) of the 1999 Constitution (as amended) and the planned removal from their positions as elected Chairmen and Councillors of Local Government Councils and Local Council Development Areas in Oyo State by the 1st and 6th Respondents. The lower Court held that the case of the Appellants was futuristic and speculative and thus disclosed no reasonable cause of action. I humbly disagree with their lordships.
The Appellants were not only challenging the legality or validity of the provisions of Sections 11 and 21 of the Amended Local Government Law of Oyo State, but the mere enactment of the said provisions of the Local Government Law constituted an imminent threat to their tenure as guaranteed by Section 7 (1) of the Constitution. Hence, I do not see how such an action can be said to be speculative or futuristic. What is more?
The Respondents averred in their counter-affidavit that they are aware that this Court had in a recent decision struck down similar provisions to those being challenged as unconstitutional, ostensibly admitting that the Sections 11 and 21 of the Amended Local Government Law are unconstitutional. The recent decision referred to is the decision of this Court in GOVERNOR OF EKITI STATE V. OLUBUNMO (2017) 13 NWLR (PT. 1551) 1.
In that case, this Court declared Section 23B of the Local Government Administration Law of Ekiti State unconstitutional for empowering the Governor to truncate the existence of elected Local Government Councils. In line with the aforesaid decision of this Court and similar cases such as EZE & ORS v. GOVERNOR OF ABIA STATE & ORS (2014) LPELR-23276 (SC), I have no hesitation in holding that Sections 11 and 21 of the Amended Local Government Law of Oyo State are ultra vires, illegal, unconstitutional, null and void.
The Constitution is the organic law of the land and by operation of Section 1(3) of the Constitution, any law that constitutes an affront to it is dead on arrival.
For the above reasons and of course the fuller ones adumbrated in the lead judgment, I too allow this appeal. I abide by all the consequential orders made in the lead judgment, including the order as to costs. Appeal allowed.
Appearances
MOBIL PRODUCING (NIG) UNLTD & ANOR v. REGD TRUSTEES OF MINERAL RESOURCES AWARENESS INITIATIVE OF AKWA IBOM STATE & ANOR
On Friday, January 14, 2022
CA/C/296/2018Before Their Lordships
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
Judgment
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, Uyo Judicial Division, Akwa Ibom State, Coram Hon. Justice I. M. Sani, delivered on 25th of May, 2018 dismissing the appellants’ notice of preliminary objection challenging the jurisdiction of the trial Court to entertain the suit. The respondents as plaintiffs before the trial Court took out a writ of summons and statement of claim filed on 12/5/2017 claiming declaratory and injunctive reliefs against the defendants jointly and severally.
Upon being served with the originating processes, the defendants now appellants filed a notice of preliminary objection praying the Court to dismiss the suit for want of jurisdiction on the grounds inter alia, that the suit is statute barred and that no reasonable cause of action was disclosed against the 2nd appellant herein.
After hearing parties on their respective affidavit evidence, learned trial Judge found that the respondents’ claim disclosed a reasonable cause of action against the appellants and that since the alleged infraction is ongoing, it cannot be defeated by a plea of limitation of time. Consequently, the preliminary objection was dismissed by the trial Court. Dissatisfied, appellants appealed to this Court through a notice of appeal filed on 7/8/2018 containing six (6) grounds of appeal.
In arguing this appeal, the learned counsel for the appellants formulated three (3) issues for determination thus:- 1. Whether, from a consideration of the entire facts and circumstances of the suit before the lower Court, the suit was not statute-barred and the cause of action completely extinguished pursuant to the provisions of Section 16 of the Limitation Law, Cap 78, Laws of Akwa Ibom State of Nigeria, thereby robbing the lower Court of the jurisdiction to entertain same? 2.
Without prejudice to issue 1 above, was the lower Court seised with jurisdiction to entertain the substantive suit against the 2nd appellant given the fact that the appellant as acknowledged by the respondents’ originating processes, is a foreign company that is domiciled outside the territory of the Federal Republic of Nigeria and has no presence or business whatsoever in Nigeria? 3.
Without prejudice to issues 1 and 2 hereof, based on the respondents’ averments in their statement of claim and the reliefs sought in the suit does the suit disclose any reasonable cause of action howsoever and whatsoever against the 2nd appellant? The respondents adopt the three issues formulated by the appellants.
Arguing issue No.1 on behalf of the appellants, learned counsel, Obafolahan Ojibara referred copiously to the respondents’ statement of claim to contend that their entire cause of action is predicated on the contractual right in respect of the Standard of Business Conduct said to have been issued by the 2nd appellant in November, 2011.
Counsel therefore submitted that the respondents’ cause of action in this suit accrued either on or about 15th February, 1970 when the 1st appellant allegedly made its first commercial find in Akwa Ibom and failed to locate its Headquarters thereat or in November, 2011 when the purported Standard of Business Conduct document was published. Still in contention, counsel argued that the respondents’ cause of action which is rooted in an alleged contract has limitation period for instituting an action in Akwa Ibom is five years which has expired.
He referred to Section 16 of the Limitation Law of Akwa Ibom State and the cases of EGBE V ADEFARASIN (NO.2) (1987)1 NWLR (prt.47) 1, ELABANJO & 1 OTHER V DAWODU (2006) 15 NWLR (prt.1001) 76 at 123 and EBONYI STATE UNIVERSITY & ANOR V IFEANYI & ANOR (2016) LPELR–41051 in urging this Court to declare the suit as statute barred.
Assuming but not conceding the fact that the respondents’ claim is rooted in the breach of any duty or negligence, counsel submitted that it is not sufficient for respondents to make a blanket allegation of negligence without giving full particulars of items of negligence relied on as well as the duty of care owed to them by the appellants herein. He referred to DIAMOND BANK LTD V PARTNERSHIP INVESTMENT CO. LTD & ANOR (2009) LPELR 939 to contend that there is nothing in Section 17 of the Akwa Ibom State Limitation Law that limits, remove or ousts the applicability of Section 16 thereof.
Though Section 17 of the extant law creates some kind of exception, it was argued that same applies to an action for damages for negligence, nuisance and breach of duty where such duty exists by virtue of a contract or made by or under an enactment or independently of any contract where the damages claimed by the person for negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries. On the part of the respondents, learned counsel Onyinye A.
Ochi contend that the respondents’ claim is founded purely on breach of duty and negligence of the appellants, which duty of care flows from communal neighbourhood relationship that exists between the 1st appellant and the host community, which she carries out her oil drilling business and other allied matters.
In aid, counsel cited and relied on Exhibit HIA 1 and HIA 2 and paragraph 17 of the statement of claim to contend that the suit is not affected by the statute of limitation. Counsel contend further that the 2nd appellant also placed a duty of care (corporate social responsibility) on the shoulders of the 1st appellant, to its host community, indigenous people of Akwa Ibom State. That duty according to learned counsel flows from communal relationship that exists between the appellant and its host community where the 1st appellant carries on her drilling business.
In effect, the contention of the respondents is that the relocation of the appellant’s head office to Akwa Ibom State will enhance the revenue generation capacity of the people, increase employment, security and give the indigenous people of Akwa Ibom State the opportunity to aspire to the highest position open to a Nigeria Reliance was placed on ENYIKA V SHELL BP PETROLEUM DEVELOPMENT CO.
LTD (1997) NWLR (prt.526) 638 to the effect that the doctrine of proximity as the foundation of duty of care in tort is the basis of an action in negligence and the 2nd appellant having placed a duty of care on the shoulders of the 1st appellant, and the perceived reckless breach of that duty by the 1st appellant gave birth to the substantive suit. It was thus submitted that having owed a duty of care owed to the indigenous people of Akwa Ibom State, the appellants’ continually breached that duty of care and that this duty cannot be negated by the statute of limitation.
Counsel relied onKALU V GOVT. OF ABIA STATE (2020) LPELR–50133 and UMAR V AHUNGWA (1996) LPELR–13689 to the effect that negligence is basically a question of fact and therefore each case must be decided based on its peculiar facts. Counsel finally submitted that the continuous nature of the damage or injury in the instant case makes limitation law inapplicable relying on AREMO II V ADEKANYE (2004) 13 NWLR (prt 891) 572 at 593 and A.G. RIVERS STATE V A.G. BAYELSA STATE (2013) ALL FWLR (prt.699) 1087 at 1106.
On issue No.2, the contention of the appellants is that since the 2nd respondent is a company registered in the United States of America with its head office at 5959 Las Cohinas Boulevard, Irving, Taxes 75039–2290, the lower Court had no territorial jurisdiction as the 2nd appellant is neither physically present in Nigeria nor operates through any branch or agent in Nigeria.
In aid, counsel relied on Section 6 6 (b) of the 1999 Constitution (as amended) and the case of ADAMS & OTHERS V CAPE INDUSTRIES PLC & ANOTHER (1990) CH 433 at 457. It was also argued that contrary to the findings of the lower Court that 2nd appellant has a physical presence in Nigeria, the 2nd respondent has no business presence in Nigeria.
Assuming but not conceding that the 1st appellant is an agent of the 2nd appellant, counsel submitted that there is no legal principle that permits or transfer obligations from one corporate entity to another where the two entities are distinct, not even where the two entities share common ownership or have a subsidiary company relationship.
He referred to UNION BEVERAGES LTD V PEPSICOLA INTERNATIONAL LTD (1994)3 NWLR (prt.330) 1 at 16. In response, the respondents relied on Exhibit HIA1, page 1, paragraph 3 on page 141 of the record of appeal to contend that the 2nd appellant admits that the said Exhibit shall be the foundation policy guidelines for her own subsidiaries, either wholly or majority owned. And that the 1st appellant is part and parcel of these subsidiaries.
The 2nd appellant also admits in the said Exhibit that it shall be the 2nd appellant’s foundational policy guidelines, worldwide (including the 1st appellant), made as regards business operations, concerning its relationship with their host communities. Counsel therefore submitted that the 2nd appellant in Exhibit HIA1 anticipated her business to go outside the United States of America by using the phrase “for the worldwide Conduct of Business Corporation and its majority-owned subsidiaries”.
He also argued that the case of ADAMS & OTHERS V CAPE INDUSTRIES PLC (supra) is no longer the position of the law in the United Kingdom and that in LUNGOWE V VEDANTA RESOURCES PLC, a parent company could be held liable for the actions of a subsidiary on ordinary principles of tort law.
Thus, the 2nd appellant, though a foreign company, can be sued or can sue in Nigeria and the lower Court is seized with jurisdiction to entertain the suit against the 2nd appellant. On issue No.3, the appellants’ contention is that there is nothing linking the 2nd appellant with the respondents’ claim and that for cause of action to lie against a party a nexus must first be established to exist between the action and the party against whom the action lies.
Counsel contend that the only legal conduct of the 2nd appellant being complained by the respondents is its alleged ownership of the 1st appellant and therefore controls its operations and management. He submitted that a holding company and its subsidiaries are separate entities with each capable of owning assets and responsible for its own liability relying on M. O. KANU & SONS CO. LTD V F.B.N. PLC (1998) 11 NWLR (prt.572) 121 and REV. RUFUS IWUAJOKU ONUEKWUSI & ORS V THE REGISTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH (2011) 2-3 SC (prt.1)1.
The respondents on their part contended that cause of action means the entire set of facts or circumstance giving rise to an enforceable claim. This includes all those facts necessary to give right of action and every fact which is material to be proved to entitle the plaintiff to succeed. Counsel referred to paragraph 35 of the statement of claim and submitted that same raises some issues of law or fact calling for determination by the trial Court.
RESOLUTION Issue No.1 deals with the nature of the respondents’ cause of action as well as the applicability or otherwise of the extant limitation law of Akwa Ibom State of Nigeria. The law is settled that cause of action refers to the facts or combination of facts which a plaintiff must adduce to be entitled to any relief, the action itself is the medium through which the plaintiff litigates his bundle of facts. In other words, a plaintiff’s right of action eventuates from the existence of a cause of action. SIFAX (NIG) LTD V MIGFO (NIG) LTD (2018) 9 NWLR (prt.1623) 138.
The law is equally settled that the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin to maintain his action. Thus, time begins to run when the cause of action crystallizes or becomes complete. The right of action accrues when the person that sues becomes aware of the wrong done to him. See MULIMA V USMAN (2014) 16 NWLR (prt.1432) 160, and UBN PLC V. UMEODUAGU (2004) 13 NWLR (prt.890) 352. The contention of the parties is not on when the cause of action accrued to the respondents but on the nature of the action.
While the appellants contended that the cause of action is rooted on simple contract, the respondents maintained that it is founded on breach of duty of care which flows from communal neighbourhood relationship. In order to ascertain a cause of action, the immediate materials a Court should look at are the writ of summons and the averments in the statement of claim. The pertinent averments in paragraphs 13, 15, 16, 34, 35, 38, 69 and 81 of the respondents’ statement of claim in this case states as follows:- “13.
On 16th June 1969, Mobil Producing Nigeria Unlimited (MPN), the (1st defendant) was incorporated to take over/continue the business of MENT. The 1st defendant began production of crude oil in February 15, 1970 in the offshore areas of the then South Eastern State now Akwa Ibom State with a profit sharing ratio of 40% (1st defendant) to 60% (Federal Government of Nigeria represented by NNPC). 15.
Throughout the period from 1964 to 1970 the 1st and 2nd defendants had not built/set up their corporate office in Lagos State having not succeeded in their exploration activities in the then Northern and Western regions of Nigeria where they first sought to drill oil. 16.
The plaintiff shall at the trial contend that it was the discriminatory policies of the 1st and 2nd defendants against the indigenous people of the Southern-Eastern State (now Akwa Ibom State) who are minorities in Nigeria that caused the 1st and 2nd defendants in the plaintiff’s state to locate the 1st defendant corporate head office in Lagos, Western Region where it had unsuccessfully explored oil from 1955–1961. 34.
The plaintiffs state further to the above that the defendants consequent upon the publication of the John Ruggie Framework published in March 21st, 2011, November now updated to January 2017 published their own “Standards of Business Conduct” prepared by Rex W. Tillerson Chairman of the 2nd defendant which adopted several parts of aforesaid John Ruggie Framework and 35. The plaintiffs shall at the trial of this suit rely on the said document titled “Standard of Business Conduct – EXXONMOBIL” issued by Rex. W.
Tillerson Chairman of the 2nd defendant in November, 2011 obtained in the defendants’ Website “(www.exxonmobil.com)-overview/guiding principles/principles.html.” The plaintiffs hereby give the defendant notice to produce the original copy of the said document at the trial of this suit. The said document titled “Standard of Business Conduct” issued by the Chairman of the 2nd defendant regulates the conduct of the business of Exxonmobil and subsidiaries/affiliates worldwide and is binding on Exxonmobil all its subsidiaries/affiliates worldwide including the 1st defendant in this suit.” 38.
The plaintiffs state that the pleaded facts above constitute the bindings contracts between the defendants and the communities in which they operate in Nigeria in the case of Akwa Ibom State where they have majority of their operations in Nigeria. 69.
The plaintiffs state further to the above that as part of the contract between the 1st defendant and the indigenous people of Akwa Ibom State, the parties herein within 30 days of the receipt of the audited report of the salaries accruable to all the staff of the 1st and 2nd defendants employed and relocated in Lagos State being the head office of the 1st and 2nd defendants’ business in Nigeria and the pay As You Earn (PAYE) income tax and other taxes payable to Lagos State on their behalf by the 1st defendant from November, 2011 when the 2nd defendant prepared and published the document titled “Standard of Business Conduct – EXXONMBIL” as the document that regulates the conduct of business of the 1st and 2nd defendants’ extractive oil drilling and producing operations in Nigeria i.e. from the date of judgment of this Honourable Court till the 1st defendant relocates its head office from No. 1 Lekki – Ekpe Express Way Lekki, Lagos State to Uyo, Akwa Ibom State failing which the parties revert to this Honourable Court for further directions as shall be just, fair and equitable in the circumstances. 81.
By virtue of the 2nd defendant’s document titled “Standard of Business Conduct” issued by her chairman to regulate the conduct of business worldwide including the 1st defendant and which document is not only binding on but also constitutes a contract between them and the plaintiffs, the 1st defendant is bound to relocate her head office of operations in Nigeria to either Eket, Ibeno, Esit Eket and or Onna Local Government Areas of Akwa Ibom State.” I have stated that the cause of action accrues when the plaintiff gets to know that his enforceable claim or right has come into existence or become a present enforceable demand or right or has arisen and to prove as a fact during trial.
From the above averments it is clear that the respondents’ cause of action accrued when the respondents obtained the document titled “Standards of Business – Exxonmobil in November, 2011 through the 2nd appellant’s website: www.exxonmobil.com/overview/guidingprinciples/principles.html. Again, it is beyond any doubt that the respondents’ claim as per the above averments are predicated on the alleged contract thereby created in the standards of Business Conduct mandating the 1st appellant to relocate its head office from Lagos to Akwa Ibom State.
This state of affairs is further reinforced by the respondents’ main relief in paragraph 90 (a) of the statement of claim thus:-
“a.
A DECLARATION that by virtue of the 2nd defendant’s document titled “Standards of Business Conduct” issued by the Chairman of the 2nd defendant to regulate the conduct of the 2nd defendant’s business worldwide including the conduct of the 1st defendant’s business in Nigeria and which document is not only binding on the 1st and 2nd defendants but also constitutes a contract between the defendants and the plaintiff, the 1st defendant is bound to relocate her head office in Nigeria to Akwa Ibom State being the state in Nigeria where she carries on majority of its business as an oil producing company and which state is most adversely affected by the business activities of the 1st defendant as an oil producing company in Nigeria”.
Having held the view that the respondents’ claim is rooted in the alleged contract consummated by the standards of Business Conduct which the respondents became aware of it in November, 2011 does the present suit which was filed on 12th May, 2017 caught up by limitation law or becomes statute-barred? To be able to enjoy the dividends which recourse to the judicial process affords, a party must commence his action within the period stipulated by the statute. Being a mandatory requirement, legal proceedings cannot be validly instituted after the expiration of the prescribed period.
See SANDA V KUKAWA LOCAL GOVERNMENT (1991)2 NWLR (prt.174) 379 and MAIGARI V MALLE (2019) 16 NWLR (prt.1697) 69. By virtue of Section 16 of the Limitation Law Cap. 78 Laws of Akwa Ibom State, 2000, no action founded on contract, tort or any other action not specifically provided for in parts I and II of the said law shall be brought after the expiration of five years from the date on which the cause of action accrued.
It was held in plethora of judicial decisions that the crucial consideration is when the cause of action arose and the period of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed that gave the plaintiff a cause of action by comparing that date with the date on which the writ of summons was filed. Therefore, upon a scrutiny of the writ of summons and statement of claim, if it is found that there is a cause of action, then the time of its accrual and the time of instituting the action will be considered.
See ADEKOYA V F.H.A (2008)11 NWLR (prt.1099) 539, OMOMEJI V KOLAWOLE (2008) 14 NNLR (prt.1106) 180 and MOBIL PRODUCING UNLIMITED V DAVIDSON (2020)7 NWLR (prt.1722)1. Thus, comparing the time of the accrual of the cause of action and the time of instituting the present action will undoubtly reveal that the action was filed outside the five years period prescribed by Section 16 of the Limitation Law of Akwa Ibom State.
Contrariwise, learned counsel for the respondents had submitted and the lower Court appeared to have been swayed by the said submission that the continued presence/extraction of oil minerals in the affected areas in Akwa Ibom has taken away this action beyond the level of Section 16 of the Limitation Law of Akwa Ibom State. Learned trial Judge on page 454 of the record concluded thus:- “Section 16 of the Limitation Law of Akwa Ibom State does not apply in cases of continuance of damage or injury.
This Court has the requisite jurisdiction to entertain this suit by Section 17 (1) of the Limitation Law of Akwa Ibom State.” In arriving at the above, the lower Court relied mainly on paragraphs 24 and 25 of the statement of claim which only shows that the appellants carries out profitable oil export in Akwa Ibom State with its attendants’ negative impact as a result of the extractive and oil producing business. This in my view does not show or disclose a crystallization of any cause of action to the respondents.
This is particularly so because a plaintiff’s right of action eventuates from the existence of a cause of action. See ASABORO V PAN OCEAN OIL CORPORATION NIGERIA LTD (2017) 7 NWLR (prt.1563) 42. Had the lower Court adverted its mind to the respondents’ complaint in this suit which essentially is on the non-relocation of the 1st appellant’s head office from Lagos to Akwa Ibom, it would have discovered that the respondents are not complaining on any negligence arising from the corporate responsibilities of the 1st appellant.
Furthermore, the general principle is that the tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached. And to succeed in an action for negligence, the plaintiff must prove by preponderance of evidence that:- (a) The defendant owed him a duty of care, (b) The duty of care was breached, and (c) The defendant suffered damages arising from the breach.
See ANYAH V IMO CONCORDE HOTELS LTD (2002) LPELR–512 (SC). Gleaning from the averments in the statement of claim, the respondents neither pleaded duty of care owed them by the appellants nor the breach of such duty as well as the injury suffered arising from the breach. In consequence thereof, the respondents’ action being founded on simple contract and Section 16 of the Limitation Law of Akwa Ibom State, 2000 aptly applies to the instant case.
The respondents’ action having been filed outside the five years prescribed by Section 16 of the extant law, the lower Court is deprived of jurisdiction because the action is deemed not to exist and thereby incompetent. Issue No.2 pertains to the jurisdiction of the lower Court over a foreign company. It is very clear that Section 54 of Companies and Allied Matters Act, only prohibits foreign company from running business in Nigeria without first going through the process of registration or after obtaining an exemption certificate.
However, Section 60 (b) of CAMA is emphatic on the rights and liability of a foreign company. It provides: “60. For the avoidance of doubt, it is hereby declared that – (a) ….. (b) Nothing shall be construed as affecting the rights or liability of a foreign company to sue or to be sued in its name or in the name of its agent.” From the above, a foreign company such as the 2nd appellant has the statutory authority to sue or be sued in Nigerian Courts. The next germane issue is whether the 1st appellant is a subsidiary of the 2nd appellant and to what extent is the 2nd appellant liable?
Generally, a subsidiary company has its own separate legal personality and the act of subsidiary company cannot be imputed to the parent company nor the act of the parent company be imputed to the subsidiary company. Each of them is capable of suing or being sued in its own name. See UNION BEVERAGE LTD V PEPSICOLA INTERNATIONAL LTD (1994) 3 NWLR (prt. 330)1 and ECTHOES OF DEV. (NIG) LTD & ANOR V HUDROCHINA HOADONG (NIG) LTD & ANOR (2021) LPELR–55086. Finally, issue No.3 which apparently is a fall-out of issue No.2 deals with nexus between the respondents’ claim and 2nd appellant.
In other words, whether a reasonable cause of action is disclosed against the 2nd appellant. A reasonable cause of action is disclosed once the statement of action sets out the plaintiff’s legal right qua the defendant’s obligations towards him, and goes further to set out facts constituting the infraction of plaintiff’s legal rights or failure of the defendant to fulfill his obligations towards the plaintiff.
In CIL RISK & ASSET MANAGEMENT LTD V EKITI STATE GOVT. (2020) 12 NWLR (prt. 1738) 203 at 247, the Supreme Court has held that once the statement of claim discloses a reasonable chance that the plaintiff will succeed on his allegations as pleaded, if not traversed a reasonable cause of action would have been disclosed.
I have stated elsewhere in this judgment that the lower Court only relied on paragraphs 24 and 25 of the statement of claim to impute continuance of damage or injury without deciphering from the statement of claim the duty of care owed the respondents which was breached by the appellant as well as the injuries arising from that duty of care owed. Put differently, the lower Court was wrong to have held that the respondents’ claims have disclosed a reasonable cause of action against the 2nd appellant in the absence of a prima facie case or issue.
In the result that the respondents’ suit was caught up by the Limitation Law of Akwa Ibom State, the jurisdiction of the lower Court was effectively ousted. The appeal succeeds and the decision of the trial Court is accordingly set aside. Suit NO. FHC/UY/CS/67/2017 is hereby struck out for want of jurisdiction. Parties to bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother MUHAMMED L. SHUAIBU, JCA. I agree with the reasoning and the conclusion reached in the judgment. I also agree that the Respondents/Plaintiffs claims do not disclose a reasonable cause of action against the Appellant/Defendants. I also allow the appeal. I abide by the consequential orders and the orders as to costs. ADEMOLA SAMUEL BOLA, J.C.A.: I am privileged to have read in draft, the judgment just delivered by my Brother, MUHAMMED LAWAL SHUAIBU, JCA.
I am in agreement with his reasoning and conclusion as contained in his decision. The pleading of the Respondents particularly the statement of claim reveals clearly that the subject matter of this action is within the realm of contract. In other words, it was action founded on contract.
It is equally established from the averments of the statement of claim that the cause of action arose in November, 2011 when the Respondents obtained the document “standard of business - EXXONMOBIL through the 2nd Appellant’s website: Section 90(a) of the Statement of Claim States that the “document is not only binding on the 1st and 2nd Defendants but also constitutes a contract between the Defendants and the plaintiff…” NO other averment in the Claimants pleading speaks louder as to the gravamen of the cause of action between the parties and the nature of the cause of action created whether contractual or tortuous liability case.
Was the Respondents’ case caught by effluxion of time? Section 16 of the Limitation Law Cap 78 Laws of Akwa Ibom State provides that no action founded on contract, tort or any other action, not specifically provided for in parts I and II of the Law shall be brought after the expiration of five years from the date on which the cause of action accrued. The Respondents became aware of the cause of action in November, 2011 while substantive action was instituted in May, 2017, six years and six months after the accrual of the cause of action.
Any action which is filed after the period allowed by a statute, action not maintainable and the operation of the limitation law leaves the Plaintiff with a right of action which is dead in law. Accordingly, no Court will have jurisdiction to entertain the action. See the case SYLVA VS. INEC (2015) NWLR (1486) 576 AT 630 It is in the light of the foregoing reasons and other reasons fully stated in the lead judgment that I conclude and hold that the Respondents’ action is statute-barred.
The Respondents’ action was dead on arrival at the Court below having been caught with limitation law. Consequently, this appeal succeeds and the decision of the lower Court is hereby set aside. Suit NO. FHC/UY/CS/67/2017 struck out for lack of jurisdiction. Parties to bear their costs.
Appearances
OBASANJO & ANOR v. WURO BOGGA (NIG) LTD & ORS
On Friday, June 17, 2022
SC.82/2010Before Their Lordships
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Tijjani Abubakar Justice of the Supreme Court of Nigeria
Between
Judgment
ADAMU JAURO, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Abuja Judicial Division setting aside the ruling of the High Court of the Federal Capital Territory which dismissed the 1st and 2nd Respondents’ suit for being statute barred under Section 2 (a) of the Public Officers (Protection) Act.
BRIEF STATEMENT OF FACTS The 1st and 2nd Respondents as Plaintiffs took out a Writ of Summons and Statement of Claim against the Appellants as well as the 3rd and 4th Respondents seeking the following reliefs: 1. “A DECLARATION that the 2nd Plaintiff is the beneficial owner of the property located at Plot 6 Cadastral Zone B05, Utako, Abuja which is covered by a previous Certificate of Occupancy File No: FCT/ABV/MISC: 7300 now numbered as File NO: MISC 55124. 2.
AN ORDER of this Honourable Court that the purported revocation without prior notice or fair hearing by the 1st & 2nd Defendants of the Plaintiffs’ right of occupancy in Plot No. 6 Cadastral Zone B05, Utako Abuja is unconstitutional, invalid, null, void and of no effect.
3. AN ORDER of this Honourable Court that the purported reallocation by the 1st and 2nd Defendant of the Plaintiffs’ fight of occupancy in Plot No. 6 Cadastral Zone B05, Utako – Abuja to the 3rd and/or the 4th Defendants and indeed any third party is invalid, null, void and of no effect. 4. AN ORDER of this Honourable Court that the 1st and 2nd Defendants should reinstate the property located at Plot No. 6 Cadastral Zone BO 5, Utako-Abuja to the 1st and/or the 2nd Plaintiff. 5.
AN ORDER of this Honourable Court restraining all the Defendants, their agents, servants or privies from interfering with the right of the 1st and/or 2nd Plaintiffs to develop Plot No. 6 within Jabi District, Abuja. 6. AN ORDER of this Honourable Court awarding the sum of N10,000,000.00 (Ten Million Naira) only against the 3rd and 4th Defendants to the Plaintiffs for trespass to the property of the Plaintiffs. 7. AND for such other orders or further orders as this Honourable Court may deem fit.
The averments of the 1st and 2nd Respondents as Plaintiffs in their Statement of Claim are to the effect that the 1st Respondent was issued a C of O in respect of the land in dispute on 7/6/1998. That the 1st Respondent sold the said land to the 2nd Respondent in 2004, which sale was evidenced by a Deed of Assignment and an Irrevocable Power of Attorney. According to the 1st and 2nd Respondents, the 4th Respondent was made aware of the sale by submitting relevant documents to it.
It was further averred that by a letter dated 5/10/2005, the 3rd Respondent revoked the 1st Respondent’s C of O without prior notice or fair hearing. Miffed by the said revocation, the 1st and 2nd Respondents filed the suit culminating into the instant appeal via a Writ of Summons on 18/6/2007. Upon service of the originating processes on the Defendants, the Appellants as 3rd and 4th Defendants on one hand and the 3rd and 4th Respondents as 1st and 2nd Defendants on the other hand, filed Memorandum of Conditional Appearances as well as notices of preliminary objections.
Their objections were basically to the effect that the action was statute barred by virtue of Section 2(a) of the Public Officers (Protection) Act. According to them, the essence of the action was a challenge to the powers of the 3rd and 4th Respondents in revoking the 1st Respondent’s Certificate of Occupancy. The 1st and 2nd Respondents filed a joint reply to the notices of preliminary objection wherein it was contended that the objections were incompetent for being demurrers and that the Public Officers (Protection) Act was inapplicable to an action predicated on recovery of land.
In its ruling on the preliminary objections, the trial Court held that the Defendants’ objections challenged the jurisdiction of the Court and could therefore not be considered demurrer and that the action was caught by Section 2(a) of the Public Officers (Protection) Act. The trial Court declined jurisdiction and consequently dismissed the suit.
The 1st and 2nd Respondents were aggrieved causing them to lodge an appeal before the Court below. The Court below in its judgment, upheld the ruling of the trial Court on the issue of demurrer, but set aside the part of the ruling wherein it was held that the action was statute barred by virtue of Section 2(a) of the Public Officers (Protection) Act. The Court below held further that the applicable law to the suit was Section 15 of the Limitation Act Cap 522 Laws of the Federation of Nigeria which provides for a limitation period of 12 years.
Disgruntled by the turn of events, the Appellants instituted this appeal via a Notice of Appeal filed on 23/2/2010.
OLUWOLE ALADEDOYE ESQ., settled the Appellants’ brief of argument filed on 28/5/2010. The following issue was identified by the Appellants’ counsel as arising for determination in this appeal: “Whether the learned Justices of the Court of Appeal were right not to have invoked the provisions of the Public Officers (Protection) Act having regard to the facts and circumstances of this case? (grounds 1 – 4)”
S.O. IMHANOBE ESQ., settled the 1st & 2nd Respondents’ brief of argument filed on 21/07/2020. Learned counsel formulated the following issue on behalf of the 1st and 2nd Respondents: “Whether the learned Justices of the lower Court were in error when they held that the applicable law on limitation of time in an action for recovery of land within the Federal Capital Territory Abuja is Section 15 of the Limitation Act, Cap 522, Laws of the Federation of Nigeria?”
The 3rd and 4th Respondents’ brief was filed on 18/3/2022 and same was settled by CHIEF KINSLEY CHUKU who for the determination of the instant appeal adopted the Appellants’ sole issue.
Before going into submissions and arguments of counsel as encapsulated in their respective briefs of argument, it is important that I comment on the propriety of the 3rd and 4th Respondents’ brief of argument. As Respondents in this appeal, it presupposes that the 3rd and Respondents stick to their roles by defending the decision being appealed against. Contrary to the principles guiding appellate practice, the 3rd and 4th Respondents’ counsel argued against the judgment of the Court below.
The law is trite that the duty of a Respondent in an appellate exercise is to defend the decision appealed against. See DAHIRU & ANOR V. APC & ORS (2016) LPELR – 42089 (SC), OBI V. INEC & ORS (2007) LPELR – 2166 (SC), BUHARI & ORS V. OBASANJO & ORS (2003) LPELR – 24859 (SC), EZEANAH V. ATTA (2004) LPELR – 1198 (SC), ZAKIRAI V. MUHAMMAD & ORS (2017) LPELR – 42349(SC).
In the circumstance therefore, the 3rd and 4th Respondents’ brief is not worthy of consideration. If they are disgruntled with the decision of the Court below, they ought to have filed a separate notice of appeal or a notice of cross-appeal. On the premise of the above, the said brief would not be countenanced in the determination of this appeal. Consequently, the 3rd and 4th Respondents’ brief of argument is hereby struck out.
This appeal will therefore be determined within the confines of the issues distilled by the Appellants and the 1st and 2nd Respondents.
ARGUMENTS AND SUBMISSIONS OF COUNSEL Arguing the lone issue, learned counsel for the Appellants submitted that the 1st and 2nd Respondent pleaded the capacity of the 3rd and 4th Respondents in paragraphs 3 and 4 of the Statement of Claim before the trial Court.
He submitted that paragraph 11 of the Statement of Claim formed the basis of the 1st and 2nd Respondent’s grievances and that same showed that they were displeased with the administrative or ministerial actions of the 3rd and 4th Respondents who are public officers and by virtue of which Section 2(a) of the Public Officers (Protection) Act is applicable.
Counsel cited the case of IBRAHIM V. JSC (1998) 14 NWLR (PT. 584) 1 and submitted that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be instituted after the time prescribed by such statute. It was further submitted that it is clear from the Statement of Claim that the case of the 1st and 2nd Respondents is not for recovery of land simpliciter.
He also submitted that since Section 2(a) of the Public Officers (Protection) Act has fixed three months for an action such as this which seeks to challenge the administrative action of a public officer, the Limitation Act relied upon by the lower Court is inapplicable to this case.
It was the further submission of counsel that the 1st and 2nd Respondents did not aver that the 3rd and 4th Respondents acted outside the scope of their duties. That father the Statement of Claim reveals that the act of the 3rd and 4th Respondents which forms the basis of the 1st and 2nd Respondents’ complaints was carried out in the course of execution of intended execution of a public duty.
That from the contents of the Notice of Revocation frontloaded by the 1st and 2nd Respondents which is at page 23 of the record, the 3rd and 4th Respondents were exercising their power under Section 28 (5) (a) & (b) of the Land Use Act, 1978.
In the final analysis, counsel urged this Court to allow the appeal and hold that the suit is statute barred having regard to Section 2(a) of the Public Officers (Protection) Act.
By way of reply, learned counsel for the 1st and 2nd Respondents submitted that while the Appellants rightly argued that the basis of the 1st and 2nd Respondents’ grievances is their displeasure over the revocation of the 1st Respondent’s Right of Occupancy in respect of the disputed property, however they fell short of stating that the relief sought by the 1st and 2nd Respondents is the recovery of the land in dispute.
It was further submitted that the Appellants misconstrued the purport of paragraph 11 of the Statement of Claim and placed undue premium on the words “Purporting to exercise powers under Section 28(5)(a) and (b)”. That upon a proper construction of the said paragraph, the real import thereof is that the 1st and 2nd Respondents’ sought to recover the land unlawfully taken away from them.
He urged this Court to affirm the finding of the lower Court that the suit is a claim for recovery of land. In reaction to the Appellants’ argument that the 1st and 2nd Respondents did not aver that the 3rd and 4th Respondents acted outside their duty, it was submitted that the 1st and 2nd Respondents alleged in paragraph 11 of their Statement of Claim that the 3rd and 4th Respondents breached their constitutional fight to fair hearing.
That the said breach cannot be circumvented by reliance on exercise of the 3rd and 4th Respondents’ statutory powers under Section 28(5)(a) & (b) of the Land Use Act and the limitation provision in Section 2(a) of the Public Officers (Protection) Act. Counsel cited the case of OSUN STATE GOVERNMENT V. DALAMI (2007) 9 NWLR (PT. 1038) 66 and urged this Court to dismiss the appeal and affirm the decision of the lower Court.
RESOLUTION The law is settled that a cause of action arises as soon as the combination of facts giving the right to complain happens. In other words, a cause of action is said to have accrued when the entire factual situations which give a person the right to a judicial relief are present or have happened. That is, when all that is necessary to make the matter in litigation an enforceable right or an actionable wrong have occurred. See ZUBAIR V. KOLAWOLE (2019) LPELR-46928 (SC) AT 19(D-F), MAIGARI V. MALLE & ORS. (2019) LPELR-49374(SC) AT 15-22 (F-B).
It is the accrual of the cause of action that confers on the appellant the fight to institute an action to enforce the cause of action or right to a judicial relief. See HASSAN V. ALIYU & ORS. (2010) LPELR-1357(SC) AT 24- 25 (A-E). In order to determine the cause of action, when it accrued and when the action is filed, the Court will look at the claim of the plaintiff and the facts pleaded in the statement of claim.
The Appellants’ claim has been stated earlier in this judgment. The facts in support of claim are pleaded in paragraphs 7 – 15 of the Statement of Claim as follows:
“7. On 07/06/1998, the 1st Plaintiff was issued the Certificate of Occupancy No. FCT/ABU/MISC: 7300 in respect of Plot No.6 Cadastral Zone B05, Utako – Abuja measuring 4246.92 square meters for a term of 99 years commencing 12/01/1994 (the ‘Property’). 8. On 25/8/2004, the 1st plaintiff sold the property to the 2nd plaintiff. The sale is evidenced a deed of assignment and an irrevocable power of attorney dated 25/8/2004. The plaintiffs hereby plead the said Certificate of Occupancy and Power of Attorney. 9.
The plaintiff submitted the power of attorney to the 2nd defendant and paid to the 2nd defendant the sum of N51,000 (Fifty-one thousand Naira) only for registration of the power of attorney. The plaintiffs hereby plead the receipt of payment number 000722307 dated 29/04/2004. 10. On the 20/06/2005, the 2nd plaintiff through their agent Lawal I. Isa, submitted the Certificate of Occupancy No. FCT/ABU/MISC:7300 and the Power of Attorney in respect of Plot No. 6 Cadastral Zone B05, Utako – Abuja to Abuja Geographic Information Systems (AGIS).
The plaintiffs hereby plead the Deposit Slip No 0021364 evidencing payment of N110,000 (One hundred and ten thousand Naira) only to the 1st and 2nd defendant and the Acknowledgement issued by the 1st and 2nd defendant dated 20/06/2005. 11. By a letter dated 05/10/2005, the 1st defendant without prior notice or fair hearing to the plaintiffs, purporting to exercise powers under Section 28(5) (a) and (b) served on the 1st plaintiff through the 2nd plaintiff a notice of revocation of the Certificate of Occupancy in respect of the property.
The notice of revocation though dated 05/10/2005 was received by the 2nd plaintiff via DHL courier on 18/5/2006. The plaintiffs hereby plead and shall at the trial rely on the letter of revocation dated 05/10/2005. 12. On 22/05/2006, the 2nd plaintiff wrote a letter of appeal to the 1st defendant complaining about the purported revocation and requesting that the property should be reinstated to them. The plaintiffs hereby plead and shall at the trial rely on the letter of appeal. 13. The 1st and 2nd defendant have failed and/or refused to reinstate the property to the plaintiffs. 14.
Sometime in December 2006, the plaintiffs discovered that the 3rd and 4th defendant, had trespassed the property, destroying the 2nd plaintiff’s fence and constructing their own fence instead. 15. The 2nd defendant reported the matter to the office of the Commissioner of Police, Federal Capital Territory Command Abuja. The plaintiffs hereby plead and shall at the trial rely on the letter of complaint written to the Commissioner of Police dated 28/12/2006.”
It is clear from the above facts that the cause of action in the instant case is the revocation of the 1st Respondent’s certificate of occupancy in Plot No. 6 Cadastral Zone B05, Utako – Abuja by the 3rd Respondent. According to the 1st and 2nd Respondents, the said revocation which was said to have been done pursuant to the powers of the 3rd Respondent under Section 28(5) (a) and (b) of the Land Use Act, was done without prior notice or fair hearing given to them.
The aim of the Public Officer (Protection) Act is to protect public officers who have acted pursuant to their duties from being slapped or harassed with stale claim and suits. See the cases of IBRAHIM V JSC (1998) 14 NWLR, PART 584, and FAJIMOLU V UNILORIN (2007) 2 NWLR PART 1017, 74.
By the provision of Section 2 of the Act, any action, prosecution or any proceeding commenced against any public officer shall be brought within three months of the act, neglect or default complained of or in the case of a continuing damage or injury within three months next after the ceasing thereof. See NIIA V AYANFALU (2007) 2 NWLR PART 1018, 26, EKEOGU V ALIRI (1991) 3 NWLR PART 179, 258.
The Court below in the resolution of the issue under controversy held at pages 224 – 245 of the record that: “It is settled law that the Public Officers Act would not apply in cases of this nature because in Federal Government of Nigeria vs. Zebra Energy Limited (supra) the Supreme Court held among others that: “…the Public Officers Protection Act is not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contact or claims for work and labour done.” Also in Salako vs.
L.E.D.B. & Another (supra) it was held that Public Officers Protection Act does not apply to cases of recovery of land… It is my view that the authorities relied upon by learned Counsel for the 1st, 2nd, 3rd and 4th Respondents on this matter are not relevant. Therefore, the provisions of Section 2(a) of the Public Officers Protection Act relied upon by the learned counsel for the Respondent is not helpful to them.
In view of the foregoing, I agree with the submissions of learned counsel for the Appellants that the applicable law on limitation of time in an action for recovery of land within the Federal Capital Territory, Abuja is Section 15 of the Limitation Act, Cap, 522 Laws of the Federation of Nigeria.” The finding of the Court below is unassailable because this Court has held in a legion of cases that the provision of Section 2 (a) of the Public Officers (Protection) Act is not absolute and without its limitations.
Such limitations are cases predicated on recovery of land, breach of contract or claims for work and labour done. This Court in the case of CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT. & ORS (2020) LPELR-49565 (SC) held a similar view on the fact that the provision of Section 2 (a) of the Public Officers (Protection) Act does not apply to actions predicated on recovery of land or breach of contract. The facts of the case culminating into the instant appeal are on all fours with the decision of this Court cited above. In CIL RISK & ASSET MANAGEMENT LTD V.
EKITI STATE GOVT. & ORS (supra), the Appellant instituted an action at the High Court of Ekiti State, Ado Ekiti challenging the decision of the Ekiti State Government revoking its fight of occupancy and subsequently allocating the said land to a third party. Both the High Court of Ekiti State sitting in Ado Ekiti and the Court of Appeal, Ado Ekiti Division declined jurisdiction holding that the suit was statute barred under Section 2 (a) of the Public Officers (Protection) Act.
In allowing the appeal, my learned brother, Ejembi Eko JSC delivering the lead judgment held that: “The second limb of the Appellant’s submission on the scope of Section 2(a) of the Public Officers Protection Act is that the provision does not apply to cases founded on contract, or breach of contract. The Appellant is correct. Numerous judicial dicta of this Court support this submission. OSUN STATE GOVERNMENT V. DALAMI (NIG) LTD (2007) 9 NWLR (pt. 1038) 66 is a case founded on breach of lease agreement.
The respondent sued the Osun State Government seeking a declaration that the latter’s purported termination of the Management Lease Agreement was wrongful. The respondent sought a further order nullifying of setting aside the purported termination, and an order for specific performance. Osun State Government pleaded limitation afforded by the Public Officers Protection Act. This Court unanimously rejected the plea and held that Section 2 of the Public Officers Protection Act does not apply in cases for recovery of land or breach of contract.
It cited, with approval, previous decisions on the point in SALAKO V. L.E.D.B (1953) 20 NLR 159, NPA V. CONSTRUZIONI GENRALI F.C.S (1974) 9 NSCC 622; (1969) 1 ALL NLR (pt. 2) 463, BANKOLE V. NBL (1969) NCLR 385 at 390. It is very clear from the ipixit dexit of the Respondents, at pages 150 – 160 and 191 – 192 of the Record, in their respective preliminary objections, that they justified the revocation of the Appellant’s C of O on the fact that the Appellant was in breach of the contract terms, conditions and obligations contained in the C of O.
They accordingly invoked the provision of Section 2(a) of the Public Officers Protection Act, being a special defence, as having extinguished the Appellant’s right to enforce the cause of action founded on the said breach of contract.
It is apparent also from paragraphs 2.3; 4.43; 4.58; 4.91; 4.100 – 106, and 4.109 of the 1st – 3rd Respondents brief that they had contrary to established judicial precedents, invoked Section 2(a) Public Officers Protection Act as a statutory bar to Appellant’s cause of action premised on breach of the contractual terms, condition or obligations in the Certificate of Occupancy.
In my firm view, my Lords, the two Courts below were in error to have acted on Section 2(a) Public Officers Protection Act to strike out the suit of the Appellant for being statute barred. The scope of the Act does not extend to actions founded on recovery of land or breach of contract. The two Courts below had definitely misconceived the scope and spirit of the Act.” Per EKO, J.S.C (Pp. 6-9 paras.
E) I am in agreement with counsel for the 1st and 2nd Respondents that the action is predicated recovery of land simpliciter and not connected with the administrative or ministerial actions of the 3rd and 4th Respondents who are public officers as contended by the Appellants. See OSUN STATE GOVERNMENT V. DALAMI (supra); SALAKO V. L.E.D.B (supra).
On the strength of the decisions of this Court on the inapplicability of the Public Officers (Protection) Act to cases predicated on recovery of land, the sole issue distilled for the determination of the appeal is hereby resolved in favour of the 1st and 2nd Respondents and against the Appellants. I find no iota of merit in this appeal. Same is hereby dismissed.
Consequently, the decision of the Court of Appeal, Abuja Division, delivered on 15th December, 2009 wherein the ruling of the High Court of the Federal Capital Territory, Abuja dismissing the 1st and 2nd Respondents’ suit for being statute barred is hereby affirmed. Costs of N2,000,000.00 is hereby awarded in favour of the 1st and 2nd Respondents and against the Appellants.
OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, Adamu Jauro, JSC just delivered, I agree entirely with the reasoning and conclusion of the lead judgment that the appeal is unmeritorious and deserves to be dismissed. Accordingly, it is dismissed by me. Appeal dismissed.
I abide by the consequential order in the lead judgment including order on cost.
UWANI MUSA ABBA AJI, J.S.C.: The 1st Respondent as plaintiff together with the 2nd Respondent was issued a C of O in respect of the land in dispute on 7/6/1998 and the 1st Respondent sold same to the 2nd Respondent in 2004 vide a deed of assignment and irrevocable power of attorney, which sale was made known to the 4th Respondent when the relevant documents were submitted to it. However, the 3rd Respondent by a letter dated 5/10/2005 revoked the 1st Respondent’s C of O without prior notice or fair hearing.
Consequently, the 1st and 2nd Respondents sued the Appellants and the 3rd and 4th Respondents. The Appellants and the 3rd and 4th Respondents preliminarily objected to the competence of the suit to the effect that the action was statute barred by virtue of Section 2 (a) of the Public Officers Protection Act. The trial Court declined jurisdiction and dismissed the suit.
On appeal by the 1st and 2nd Respondents, the lower Court set aside the ruling that the action was statute barred, hence this appeal by the Appellants, who seek for determination: “Whether the learned Justices of the Court of Appeal were right not to have invoked the provisions of the Public Officers Protection Act having regard to the facts and circumstances of this case?”
In the instant case, the grouse of the 1st and 2nd Respondents is that the 3rd Respondent by a letter dated 5/10/2005 revoked the 1st Respondent’s C of O without prior notice or fair hearing.
What is involved in the present suit is revocation of land or the recovery thereof. Does Section 2 (a) of the Public Officers Protection Act apply to every genre and action of the public officer? Does it apply in the present suit to make it statute barred? The Public Officer Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done. See Per ABBA AJI, JSC, in RAHAMANIYA UNITED (NIG) LTD V. MINISTER OF FCT & ORS (2021) LPELR-55633(SC) (PP. 10-11 PARAS. B), ROE LTD V.
UNN (2018) LPELR-43855(SC) (PP. 21-22, PARAS. D-A), CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT. & ORS (2020) LPELR- 49565(SC) (PP. 6-9, PARAS. E-C).
I therefore completely agree with the sound reason and conclusion of my learned brother, Adamu Jauro, JSC that this appeal is devoid of any merit.
The appeal therefore fails and is hereby dismissed. I endorse the costs of N200,000 awarded in favour of the 1st and 2nd Respondents by my learned brother.
MOHAMMED LAWAL GARBA, J.S.C.: My learned brother, Hon. Justice Adamu Jauro, JSC has adequately consider and dealt with the sole issue submitted to the Court for decision by the Appellants in the lead judgment which I had the privilege of a preview.
The law is now beyond argument, since it has been firmly settled in many decisions of this Court that the provisions of Section 2 (a) of the Public Officers Protection Act (POPA) do not apply, for the purpose of limitation of actions, to actions predicated on contracts or for recovery of land. See N.P.A. v. Lotus Plastics (2005) 24 NSCQR, 566, FGN v. Zebra Energy Ltd (2002) 18 NWLR (pt. 798) 162 at 197, CBN v. Adedeji (2004) 13 NWLR (pt. 890) 226, Gyang v. N.S.C. (2002) 15 NWLR (pt. 791), Adigun v.
Ayinde, (1993) 8 NWLR (pt. 313) 516, in addition to the cases cited and referred to in the lead judgment on the principle. Since as demonstrated from the facts in the pleadings of the 1st and 2nd Respondents, the primary claims and reliefs sought in the case before the trial High Court, were based on and for recovery of land taken away by the 3rd and 4th Respondents purportedly in the exercise of their administrative powers, the matter was one to which the provisions of Section 2 (a) of POPA, do not, clearly, apply or applicable.
In the result, the appeal is apparently devoid of merit and deserves to be dismissed.
I dismiss the appeal in terms of the lead judgment.
TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, ADAMU JAURO JSC granted me the privilege of reading in draft the comprehensive leading judgment prepared and rendered in this appeal. I endorse the reasoning and conclusion and adopt the Judgment as mine, I have nothing extra to add.
I join my learned brother in holding that appellant’s appeal lacks merit and therefore deserves to be and is hereby dismissed. The judgment of the lower Court delivered on the 15th day of December, 2009 is affirmed. I also abide by all consequential orders including the order on costs.
Appearances
LOYE & ANOR v. NEWLIFE MICROFINANCE BANK LTD
On Tuesday, June 21, 2022
CA/L/364/2012Before Their Lordships
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
Judgment
PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): The factual matrix undergirding this interlocutory appeal is straightforward, and by no means complex or convoluted. The Appellants are husband and wife, whilst the Respondent is a financial institution (formerly known as Agidingbi Community Bank). The Respondent granted a 90-day credit facility in the sum of N500,000.00 to the 1st Appellant to enable her “purchase 10 V50 Suzuki Motorcycles for sale” upon the terms and conditions contained in a letter of offer dated 4/8/97.
The facility was to be repaid from “proceeds from sales into your [i.e. 1st Appellant’s] account with the bank” with “a penalty charge of 10% compounded every month on every past due repayment”. The offer was accepted the same day, and the 2nd Appellant issued a personal guarantee dated 23/7/97 as well as deposited the title documents of his property situate at Railway Crossing, Agbado in Ifo Local Government Area of Ogun State with No. Tros/OG/04794 covered by Certificate of Occupancy No. 020319 as security for the facility.
The Respondent alleged that the 1st Appellant failed or neglected to fulfil her repayment obligations at all material times, save for a cheque of N50,000 paid into her debt service account on 19/7/99. The Respondent further alleged that the 2nd Respondent admitted in a letter dated 14/7/99 that the outstanding principal debt as at 27/5/98 stood at N283,141.08 whilst interest on the facility was compounding, but pleaded for a waiver of interest and promised to liquidate the entire debt in October 1999 which promise was not kept; and that several negotiation meetings aimed at reconciling accounts and make compromises (where necessary) were initiated by the Appellants between 2003 and 2004 to no avail; that the Respondent instructed its solicitors, Messrs Oluropo Awoyele & Co which gave a final demand notice dated 21/1/10; and that the principal loan and accrued interest as at 18/3/10 stood at N4,029,461,00.
The Respondent (qua claimant) subsequently initiated Suit No. ID/1281/2010 vide a writ of summons issued out of the Registry of the High Court of Lagos State on 8/9/2010 claiming against the Appellants (qua defendants), jointly and severally, the following reliefs: “a. An order of this Honourable Court foreclosing the defendants’ equity of redemption and equitable right to redeem the property mortgaged in favour of the claimant by deposit of title deeds of same in that respect. b.
An order of this Honourable Court effectively putting the claimant in undisturbed possession of the property mortgaged in favour of the claimant. c. An order of this Honourable Court empowering the claimant to sell the landed property mortgaged in its favour by the Defendants in realisation of its security for the loan. Alternative to prayer “C” above. d.
The sum of N4,029,461.00(Four Million, Twenty-nine Thousand, Four Hundred and Sixty-one Naira) representing principal and accrued interests on the loan facility granted the 1st Defendant from the 4th of August 1997 till March 18, 2010. e. 10% (ten percent) compound interest on the accrued and unpaid sum from the 18th day of March 2010 till the date the judgment debt in this matter is finally liquidated. f.
Cost of this litigation.” The Appellants joined issues with the Respondent by filing a statement of defence on 3/5/11 along with a motion on notice praying the Court for “an order dismissing the entire suit in limine” on the grounds that: “1. The claims and reliefs sought by the Claimant/Respondent are statute barred”; “2. The claims are self-defeating, unobtainable and disclose no reasonable cause of action as presently constituted”; and “3. The Honourable Court lack jurisdiction to entertain the suit”.
The Respondent filed a counter affidavit and written address in opposition to the Applicants’ motion, which was heard and eventually dismissed by Pedro, J. in a considered Ruling delivered on 22/1/12 (which lies at pp. 150 – 159 of the records). The Appellants are peeved by the Ruling and lodged the present appeal. They faulted the Ruling on the three grounds set out in the Notice of Appeal dated 29/2/12 (copied at pp. 162 – 165 of the records). As enjoined by the Rules of this Court, briefs or arguments were filed and duly exchanged.
The Appellants’ Brief filed on 13/7/12, the Respondent’s Brief filed on 17/9/12, and the Appellants’ Reply Brief filed on 24/9/12 were all regularized by the orders of this Court. At the hearing of this appeal on 21/3/22, O. A.
Owolabi, Esq. of counsel adopted the briefs filed on behalf the Appellants and urged the Court to allow the appeal; whilst the Respondent’s Brief was deemed argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules 2021. Three issues are distilled for determination in the Appellant’s Brief as follows: (i) Whether the cause of action arose on 19th October 1999 as held by the Learned Trial Judge (Ground 2) (ii) Whether the action of the Claimant is statute-barred (Ground 1). (iii) Whether the reliefs sought by the Claimant are self-defeating, unobtainable and disclose no reasonable cause of action (Ground 3).
On its part, the Respondent identified two issues for determination in the Respondent’s Brief thusly: (i) Whether the cause of action arose on 19th October 1999 as determined by the Learned Trial Judge. (ii) Whether this suit can be said to be statute-barred in view of the prevailing circumstances of this matter vis-à-vis the applicant’s refusal to respond to the respondent’s correspondences.
The similarity in the issues formulated by the parties is obvious, save that the Respondent sidestepped the third issue bordering on non-disclosure of reasonable cause of action. I will adopt the three issues identified by the Appellants in the determination of this appeal.
Appellant’s submission The Appellant contends that the reference to EGBE v ADEFARASIN [1987] 1 NWLR (PT 47) 2 on the definition of cause of action is correct but the Learned Trial Judge erred in holding that the cause of action in this matter arose on 19/10/99 and thereby misapplied S. 29(1) of the Limitation Law of Lagos State; that it is stated clearly in the letter of offer that the loan was for a duration of 90 days, which meant that the date of expiry was 3/11/97;
that the loan was deposited into the account of the 1st Appellant (1st defendant) on 2/9/97 and drawn down substantially on 3/8/97, as such even if the facts are stretched and time is computed from 2/9/97 (when the 1st Appellant’s account was credited) or 3/9/97 (when it was drawn down), the facility still expired on 1/12/97 or 2/12/97 - being the dates of the factual situation that gives the Respondent (claimant) a right to sue to recover the debt;
that the cause of action arose at the expiration of the 90-day duration of the loan as provided in the letter of offer as that is when (in the words of the Learned Trial Judge) there is “in existence a person who can sue and another who can be sued”;
and that no matter what is contained in the pleadings, the date of accrual of cause of action cannot be stretched further than that, citing AKIBU v AZEEZ [2003] 5 NWLR (PT 814) 643. The Appellants further contend that as against the 1st Appellant (being the alleged primary debtor), the action filed by the Respondent on 8/9/10 is defeated not only by Ss. 8(1) of the Limitation Law, Cap 167, Laws of Lagos State 2003, but also by Ss. 29(1), 30(1) and 31(1) thereof in that the suit was brought 12 years 10 months (or 12 years 7 months) after the cause of action arose, calling in aid the case of MRS COMFORT OLUFUNMILAYO ASABORO & ANOR v PAN OCEAN OIL CORPORATION (NIG) LTD & ORS [2006] 4 NWLR (PT 971) 595 at 617;
that both the principal loan and interest thereon are caught by Limitation Law and the learned Trial Judge erred in holding that the ‘issue of interest remains a live issue which will be determined at the trial stage’ and thereby unjustifiably ignored S. 30(1) of the Limitation Law which limits claims on arrears of interest to six years; and that having clearly exceeded six years (whichever computation, including that of the Learned Trial Judge, is utilised in determining when the cause of action arose), the issue of interest was dead and could no longer be a live issue.
The cases of ELABANJO v DAWODU [2006] 15 NWLR (PT 1001) 76, P. N.
UDOH TRADING COMPANY LIMITED v SUNDAY ABERE & 2 ORS [1996] 8 NWLR (PT 467) 479 at 492 (on reasons for the existence of statutes of limitation) and JOHN EBOIGBE v NIGERIAN NATIONAL PETROLEUM CORPORATION [1994] 5 NWLR (PT 347) 649 are referred to. It is further contended that pleadings are not a magic wand and the averment in paragraph 12 of the statement of claim (which appeared to have swayed the lower Court) cannot stand alone but must be related to previous paragraphs and frontloaded documents which clearly show that the cause of action arose in 1997; that a combined reading of paragraphs 10 and 12 of the statement of claim reveals that the October 1999 date becomes relevant only in relation to the 2nd Appellant’s letter of 14/7/99, which has nothing to do with the 1st Appellant; and that the liability of the 2nd Appellant (as guarantor) becomes extinguished once the claim against the primary debtor is statute-barred, insisting that a guarantee has no life of its own but exists only when the primary obligation subsists and dies as soon as the primary obligation is discharged, either by payment or operation of law or whatever means, placing reliance on MACFOY v U.A.C. (1962) A.
C. 152 at 160.
On Issue 3, the Appellants argued that the reliefs sought are self-defeating, unobtainable and disclose no reasonable cause of action; that it is averred in paragraph 10 of the statement of claim that the 2nd Appellant admitted owing N283,141.08 and promised to pay up in October 1999 via a letter dated 14/7/99, which admission cannot bind the 1st Appellnat (even though they are husband and wife), but Respondent (as claimant) frontloaded a statement of account up to 30/11/2000 showing that the 1st account had been reduced to zero; that the 2nd Appellant’s alleged admission was made in July 1999 whilst the statement of account frontloaded by the Respondent shows that there was no indebtedness one year and four months later in November 2000; that statements made against interest are admissible and defeat the claim as in the instant case, and the Appellants are entitled to an Order dismissing the reliefs sought in limine.
Reference is made to S. 75 of the Evidence Act and the case of ANIGBOGU v UCHEJIGBO [2002] 10 NWLR (PT. 776) 472 at 487. They maintained that the innovation in the Rules of Court on frontloading “is a positive direction in the development of the judicial process and the attainment of speedy and fair dispensation of justice”, and the lower Court should have looked at the frontloaded documents in determining the reasonableness of the cause of action.
The Appellants submitted that reasonableness of cause of action is determined by reference to the statement of claim and if the Respondent frontloaded a document showing that the 1st Appellant had repaid the loan, then there is nothing more to proceed to trial upon, insisting that no reasonable cause of action is disclosed and embarking on a trial would be an academic exercise in futility. This Court was urged to resolve all three issues in favour of the Appellants, allow the appeal, set aside the Ruling of the High Court of Lagos State and dismiss the action in limine.
Respondent’s submission The Respondent cited EGBE v ADEFARASIN supra and ADEKOYA v FEDERAL HOUSING AUTHORITY [2008] 28 WRN 1 at 6-7 (on the proposition that the writ of summons, statement of claim and evidence adduced are relevant in determining when a cause of action arises) and maintained that the Appellants stopped servicing the loan since 19/10/99 (as averred in paragraph 12 of the statement of claim) but correspondence was exchanged until 2004 with a view to settling the matter amicably, which did not materialise owing to the Appellants’ rigid posture; that the cause of action arose when the agreement was breached and/or when there was no longer any hope of settlement between the parties, which was in 2004 when correspondence between the parties aimed at resolving the matter ceased; and that the facts averred in the statement of claim disclose a reasonable cause of action against the Appellants and cannot be said to be statute barred.
The Respondent maintained that it caused some letters to issue on the Appellants but received no response for reasons best known to them albeit malafide; and that rather than defending the suit, the Appellants ventured into a voyage of distraction, postponing the evil day for nothing. This Court has been urged to reject “the invitation to frivolity” extended to it by the Appellants and dismiss the appeal with costs.
Appellants’ Reply By way of reply, the Appellants maintained that the Respondent’s failure or neglect to address Issue 3 is a clear indication that it has nothing to urge; that the Respondent’s submission is contrary to the reasoning and ruling of the lower Court against which the Respondent has not appealed; that negotiations of whatever colouration cannot extend the limitation period once it did not result in any admission or final settlement of a dispute; and that the instant appeal raises fundamental issues of jurisdiction relating to statute of limitation and whether the action is self-defeating bearing in mind that the 1st Appellant’s statement of account account showing a zero debit balance was frontloaded by the Respondent itself.
The Court was urged to discountenance the Respondent’s submissions and allow this appeal. Resolution of Appeal. It is merely restating the obvious that an objection alleging statute bar constitutes a challenge to the competence of the action as constituted and ex ipso facto the jurisdiction of the Court to entertain and determine the action: EGBE v ADEFARASIN (No. 1) [1985] 1 NWLR (PT. 3) 549 and AJAYI v ADEBIYI & ORS (2012) LPELR-7811 (SC) 1 at 40–41]; even as the pre-eminent status and stature of jurisdiction in the scheme of legal proceedings is well ingrained in our jurisprudence.
Jurisdiction is determined by reference to the claimant’s demand and not the defendant’s answer. See NZEKWE v NNADOZIE (1952) 14 WACA 361.
Although an objection alleging statute bar is required to be sufficiently pleaded as a special defence, otherwise it is deemed to have been waived [see Halsbury Laws of England (Vol. 28), 4th ed., p. 408 and U.B.R.B.D.A. v ALKA [1998] 2 NWLR (PT. 537) 328], it would seem that the rule that has crystalised is that being an objection that goes to the roots of the competence of a suit, the objection can be taken after receipt of the statement of claim and before any defence is filed [see LASISI FADARE & ORS v ATORNEY-GENERAL, OYO STATE (1982) 4 SC 1 and MOBIL OIL (NIG) PLC v IAL 36 INC [2000] 6 NWLR (PT. 659) 146], just as it may be raised as a distinct point of law in the pleadings, and the Court may dispose of the point so raised before, at or after the trial.
When the plea of statute bar is raised, the Court takes into consideration the date of accrual of the cause of action and the date of filing the suit to ascertain whether it falls within or without the limitation period prescribed by the applicable limitation statute: EGBE v ADEFARASIN supra. Also, where an objection that the claimant’s action is statute-barred is sustained by the trial Court, the proper order to make is one of dismissal of the claimant’s action and not to merely strike it out.
See EGBE v ADEFARASIN supra at 15, LAMINA v IKEJA LOCAL GOVERNMENT [1993] 8 NWLR (PT. 314) 758 at 771, EBOIGBE v NNPC [1994] 5 NWLR (PT. 347) 649 at 666 and NPA v LOTUS PLASTICS LTD (2005) 12 SCNJ 165, [2005] 19 NWLR (PT. 959) 158 at 189. The phrase ‘cause of action’ has been variously defined in judicial decisions as the fact or combination of facts that gives rise to a right to sue, which consists of the wrongful act of the defendant which gives the plaintiff the right to complain and the damage consequent due to the wrongful act.
See EGBUE v ARAKA supra at 613, ECOBANK (NIG) PLC v GATEWAY HOTELS LTD [1999] 11 NWLR (PT 627) 397 at 418, EGBE v ADEFARASIN [1987] 1 NWLR (PT 47) 1 at 20, AFOLAYAN v OGUNRINDE [1990] 1 NWLR (PT 127) 369 at 373 and SAVAGE v UWECHIA (1972) 1 All NLR (PT 1) 251 at 257, (1972) 3 SC 214 at 221 to mention but a few. It is the factual basis or some factual situations a combination of which makes the matter in litigation an enforceable right or an actionable wrong.
See IBRAHIM v OSIM [1988] 1 NSCC 1184 at 1194, TUKUR v GOVT OF GONGOLA STATE [1989] 4 NWLR (PT. 117) 517 at 581 and EMIATOR v NIGERIAN ARMY [1999] 12 NWLR (PT 631) 262 at 369-370. Accrual of cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can commence and maintain his action: OKECHUKWU ADIMORA v NNANYELUGO AJUFO & ORS [1988] 3 NWLR (PT. 80) 1.
A cause of action is time barred if legal proceedings can no longer be validly brought or maintained because the period laid down by applicable limitation law has lapsed. A claimant’s cause of action to seek redress for wrong allegedly suffered as a result of the defendant’s action is to be distinguished from a right of action, which is a remedial right: the warrant to enforce presently a cause of action. A statute of limitation however removes the right of action and leaves a claimant with a barren and empty cause of action which he cannot enforce. See EGBE v ADEFARASIN supra.
In navigating the stormy waters of an objection alleging statute bar, the task before a trial Court is to ascertain the date of accrual of the claimants’ cause of action vis-a-vis the date of filing of the action within the context of limitation of action: the principle of law that enjoins a claimant, as a matter of obligation, to seek prompt remedy for the breach of his right in a Court of law within the time limited by law, otherwise his cause/right of action becomes unenforceable at the expiration of the period allowed by law for commencing the action.
Thus, where a statute provides for the institution of an action within a prescribed period, no proceedings shall be commenced after the time prescribed by such statute, and any action brought after the prescribed period is said to be statute-barred. See NATIONAL REVENUE MOBILISATION ALLOCATION AND FISCAL COMMISSION v JOHNSON [2019] 2 NWLR (PT. 1656) 247 at 270, SANDA v KUKAWA LOCAL GOVT [1991] 2 NWLR (PT 174) 379, EKEOGU v ALIRI [1991] 3 NWLR (PT 179) 258, EBOIGBE v NNPC [1994] 5 NWLR (PT. 346) 649 at 659 and P. N.
UDOH TRADING CO LTD v SUNDAY ABERE [2001] 11 NWLR (PT 723) 114, [2001] 24 WRN 1.
Time begins to run when the cause of action accrues [see FADARE v AG, OYO supra]; but computation of time in a statute of limitation “may, at times, be tricky as it involves both the interpretation of the relevant statute and the construction of the document or documents that gave rise to the cause of action”. See OMOTAYO v NIGERIAN RAILWAY CORPORATION [1992] 7 NWLR (PT. 254) 471 at 480 (CA). From the authorities, it would seem that the yardstick for ascertaining the date of accrual of cause/right of action when considering an objection based on a plea of statute bar is threefold.
First, the general rule is that the Court is enjoined to look only at the writ of summons and statement of claim [or originating summons and supporting affidavit] to exhume the cause of action and when it arose, and placing it side by side with the date the action was commenced, which are the essential requirements for determining whether a suit falls within or without the applicable limitation period.
See MBONU v NIGERIAN MINING CORPORATION [2006] 13 NWLR (PT 998) 659, ADIGUN v AYINDE [1993] 8 NWLR (PT 313) 516, ELEBANJO v DAWODU supra, CORPORATE AFFAIRS COMMISSION v GOVERNING COUNCIL OF INDUSTRIAL TRAINING FUND [2015] 4 NWLR (PT 1439) 114 at 131, EREGBOWA & ORS v OBANOR & ORS (2010) LPELR-8964, ADEKOYA v FEDERAL HOUSING AUTHORITY [2008] 11 NWLR (PT 1099) 539 and OMOMEJI v KOLAWOLE [2008] 14 NWLR (PT 1106) 180. Second, where the cause of action cannot be properly located within the confines of the originating processes, recourse can be had to the statement of defence [or counter affidavit].
This is however subject to the qualification that the date of accrual of cause of action pleaded in the statement of defence is admitted by the claimant in a reply. In different words, the date pleaded by the claimant rather than the date pleaded in the statement of defence must be relied upon unless the latter is admitted by the claimant in his reply. See ADEYEMI v OPEYORI (1976) 9-10 SC 31, AREMO II v ADEKANYE [2004] 13 NWLR (PT. 891) 572, KASANDUBU & ANOR v ULTIMATE PETROLEUM LTD [2008] 7 NWLR (PT. 1086) 274 at 297 and IBRAHIM & ORS v YUSUF (2016) LPELR-40259(CA) 1 at 9-11.
Third, where the matter proceeds to trial and the evidence adduced indicates the date of accrual of the cause of action. Here, a Court is entitled to take cognisance of that date and apply the applicable limitation law. See CHIMZOBAM v PDP & ORS (2019) LPELR-48674 (CA) 1 at 14-16.
Generally, a cause of action accrues on the date on which the incident giving rise to the cause of action occurs: EBOIGBE v NNPC supra; it arises at the time or date when a breach or any act that would warrant the person who is adversely affected by the act of another to take action in Court: WOHEREM v EMEREUWA [2000] 3 NWLR (PT. 650) 529 at 538. But no prescription runs against a person who was hindered in bringing a Court action: ADMINISTRATOR AND EXECUTOR OF ESTATE OF ABACHA v EKE-SPIFF & ORS (2009) LPELR-3152(SC) 1 at 44-45 –per Aderemi JSC.
In dismissing the Appellants’ objection, the lower Court held (at p. 158 of the records): “I find that even though the loan was granted in 1997, the cause of action only arose in 1999 when there is in existence a person who can sue and another who can be sued. I find that the action arose on 19th October, 1999 when the 1st and 2nd Defendants were averred to have failed and/or deliberately refused to service the principal debt and the accrued interests as they had agreed to do in the Guarantee Agreement.
The period of limitation stipulated under the statute Section 29(1) of the Limitation Law which Applicants have raised is 12 years. I find that from 19th October 1999 (when there is in existence a person who can sue and another who can be sued) till 8th September, 2010 when this matter was filed is only a period of eleven years and one month which is less than twelve years Limitation Law prescribed by the statute.
I find that the argument of Learned Counsel that this suit is caught by Limitation Law cannot stand and that this action is not statute barred having been brought within the period allowed by Section 29(1) of the Limitation Law. As regards the arrears of interest. Having held that the main claim for the principal sum of money is not statute barred, I will be careful not to deal with the issue of interest at this stage of proceedings. The issue as to whether the arrears of interest on the principal sum of money is statute barred remains a live issue.
That point of law will be determined at the trial stage in line with Order 22 Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules 2004.” The Appellants have faulted the above decision, insisting that the basis of the Respondent’s claim against them is the letter of offer dated 4/8/97 wherein the tenor of the facility is clearly stated to be 90 days, whilst the loan was credited into the 1st Appellant’s account on 2/11/97 and drawn down the following day, thus the cause of action arose on 3/11/97 or 1/12/97 or 2/12/97 as the case may be and the action filed on 8/9/10 is statute barred, having been filed 12 years and 10 months (or 12 years and 7 months) after the cause of action arose.
But the Respondent, in drumming up support for the decision of the lower Court, insisted that the Appellants stopped servicing the loan since 19/10/99 as averred but correspondence was still being exchanged with a view to resolving the matter amicably until 2004, albeit unsuccessfully; and that the cause of action arose when the agreement was breached and/or when correspondence between the parties ceased in 2004 and every hope of settlement was dashed. Who is right and who is wrong? We shall find out presently.
The point has already been made that the first port of call in determining whether a suit falls within or without the applicable limitation period is to look at the writ of summons and statement of claim to exhume the cause of action and when it arose, and placing it side by side with the date the action was commenced. Our recourse therefore is to the relevant paragraphs of the statement of claim (copied at pp. 3–5 of the records), wherein the Respondent (qua claimant) averred thusly: “4.
Sometime in July 1997, the 1st defendant applied for, and was granted a loan facility of N500,000.00 (Five Hundred Thousand Naira) by the claimant vide a facility offer letter dated 4th August, 1997. The said letter is hereby pleaded. 5. This credit facility which had a maturity date of 90 days was secured by the 1st Defendant with the following: i. an equitable mortgage of the 1st and 2nd defendants’ property at Railway Crossing, Agbado in Ifo Local Government Area of Ogun State backed up by Property No.
Tros/OG/04797 and Certificate of Occupancy No.020319; ii. personal guarantee by the 2nd defendant evidenced in Contract of Guarantee between the claimant and the 2nd Defendant dated the 23rd day of July 1997, guaranteeing the payment of the principal loan and all accrued interests; and iii. personal guarantee evidenced in Letter of Guarantee dated 4th August 1997. The claimant shall rely on all the documents relating to the security of the loan facility in its favour in proof of its claim at the trial of this suit. 6.
By the terms of the offer letter in respect of the facility, the loan was to be repaid by deposit of proceeds of sale of the 1st defendant’s stocks into her account held with the claimant and failure to deposit the agreed monthly instalment attracted a penalty charge of 10% (ten percent) compounded on a monthly basis on any due and unpaid instalment. 7.
Shortly after the loan was disbursed to the 1st defendant, the sum of N400,000.00 (Four Hundred Thousand Naira) was deposited into the 1st defendant’s account with the claimant on the 2nd September 1997 and on the next day, being 3rd September 1997, a cash withdrawal in the sum of N375,000.00 (Three Hundred and Seventy-five Thousand Naira) made by the 1st defendant from the said account, in effect, leaving only the sum of N25,000.00 (Twenty-five Thousand Naira) towards servicing the loan.
Bank statements evidencing the various withdrawals from and deposits into the 1st defendant’s debt service account with the claimant are hereby pleaded. 8. Several demand notices served on the 1st Defendant to fulfil her obligation of servicing the debt as agreed were ignored. 9. A cheque of N50,000.00 (Fifty Thousand Naira) was subsequently paid into the debt service account of the 1st defendant held with the claimant on the 19th day of July 1999 and after this, no further payment was made by either the 1st or 2nd defendants towards repayment and/or offsetting the loan. 10.
The 2nd Defendant vide a letter dated 14th July 1999, while admitting that the principal debt was outstanding in the sum of N283,141.08 (Two Hundred and Eighty-three Thousand, One Hundred and Forty-One Naira, Eight Kobo) as at 27th May, 1998, and that interest on the loan was compounding, pleaded for a waiver of the interests on the loan with a promise to liquidate the entire debt in October 1999. The claimant shall rely on the said letter from the 2nd defendant at the trial of this suit. 11.
The Claimant avers that several negotiation meetings were initiated by both the defendants and the claimant between 2003 and 2004 aimed at reconciling the accounts and, if necessary, make a compromise but further negotiations broke down when the defendants engaged the services of a solicitor who made matters worse by suffocating the Claimant with his ignorance about bank loan operations, secured credit transactions and even alternative dispute resolution process, to say the least, and who did nothing to promote further negotiations in respect thereof. 12.
The Claimant avers that the Defendants have since the 19th October 1999 failed and/or deliberately refused to service the principal debt and the accrued interests as they had agreed to do in the loan facility agreement and the Guarantee Agreement which, as at 18th March, 2010 stands at N4,029,461.00 (Four Million, Twenty-nine Thousand, Four Hundred and Sixty-one Naira). 13.
The claimant shall contend that it is entitled to the full sum of N4,029,461.00 embodying principal and interests which represents legitimate earnings of the Bank to meet its costs and obligations towards represents depositors and other creditors and would not stand aloof to watch its legitimate earnings being trampled over, deprived or denied, if it must remain in business. 14. The Claimant shall contend that sometime in January, 2010, it briefed its lawyers Messrs.
Oluropo Awoyele & Co. to write the final notice of demand to the 1st Defendant with a view reminding him of the necessity to pay his debt to the claimant but to no avail. The said letter dated 21st January, 2010 is hereby pleaded.” I have carefully examined the above averments. It is correct that the tenor of the loan granted by the Respondent to the 1st Appellant and guaranteed by the 2nd Appellant (as stated in the letter of offer dated 4/8/97) was 90 days.
But quite contrary to the Appellants’ contention, the Respondent’s cause/right of action to proceed against them did not necessarily accrue at the expiration of 90 days on 3/11/97 (or 2/12/97 or 3/12/97 if the 90 days is reckoned from the date the facility was disbursed and drawn down respectively). It is averred in paragraph 12 of the statement of claim that the Appellants’ continued to service the loan up until 19/7/99 when they deposited a cheque of N50m and stopped making further payments.
More crucially, the law, as I understand it, is that debts (including those arising from overdrafts, facilities or loans granted by banks to their customers) are generally repayable either on demand or on notice given or upon other condition agreed upon by the parties.
The decision of the Supreme Court in ISHOLA v SOCIETE GENERALE BANK (1997) 2 SCNJ 1, [1997] 2 NWLR (PT. 488) 405 at 422 donates the proposition that it is an implied term of the relationship between a banker and his customer that there should be no right of action until there has been a demand or notice given, thus the cause of action in an action for recovery of debt accrues upon demand for the payment of the debt, and a cause of action does not arise and no action can be commenced if no demand was made or notice given.
See also AGBABIAKA v FIRST BANK OF NIGERIA PLC [2020] 6 NWLR (PT 1719) 77 at 101(SC) and KOLO v FIRST BANK OF NIGERIA [2003] FWLR (PT 179) 130, [2003] 3 NWLR (PT. 806) 216 (CA). Against the backdrop of the foregoing, it seems to me that the cause of action did not arise on 3/11/97 or 2/12/97 or 3/12/97 as contended by the Appellants. It also did not accrue on 19/7/99 as held by the trial Court.
Rather, the cause of action accrued at the expiration of the demand notice given in the letter dated 21/1/10 written by the Respondent’s solicitors, Messrs Oluropo Awoyele & Co as averred in paragraph 14 of the statement of claim.
In the said letter titled “RE: YOUR OUTSTANDING INDEBTEDNESS TO NEW LIFE MICROFINANCE BANK LTD – NOTICE OF FINAL DEMAND” (copied at p. 26 of the records), the Appellants were given up till 15th February 2010 to liquidate the total sum of N4,029,461.00 being principal loan and interest, failhich “we shall be left with no option than to turn the heat of litigation in full blast against you even without any further recourse to you”; and the action was eventually filed on 8/9/10. It would seem therefore that the cause of action accrued on 15/2/10.
The Limitation Law, Cap 167, Laws of Lagos State of Nigeria, 2003 provides in S. 29 (1) that: “Where a principal sum is secured by a mortgage or charge on land, or on movable property (other than a ship), no action will be brought to recover such sum after the expiration of twelve (12) years from the date when the right to recover the money accrued”.
On the strength of binding case law authorities to which I have referred, the Respondent’s suit at the lower Court for the recovery of outstanding loan (and interest thereon) granted by the Respondent to the 1st Appellant and secured by deposit of title documents of the 2nd Appellant’s landed property (which thereby created an equitable mortgage in favour of the Respondent: YARO v AREWA CONSTRUCTION supra, USENFOWOKAN v IDOWU & ANOR (1975) 4 S.C. (Reprint) 136, PHARMATEK INDUSTRIAL PROJECTS LTD v TRADE BANK (NIG) PLC [2009] ALL FWLR (PT. 495) 1678 at 1705 and MATTHEW v GOOD DAY (1861) 31 L .J CH.282] cannot be said to be statute barred.
It is however a sad commentary that learned counsel on both sides of the divide cited and relied on a decided case that has no bearing whatsoever with statute bar in an action for debt recovery, and consequently did not assist the Court in the quest to ascertain the date of accrual of cause of action. Counsel owes a duty to assist the Court by citing decided cases that are relevant to the enquiry before it, which duty was observed in the breach in the instant appeal.
The lower Court reached the correct conclusion that the suit is not statute-barred notwithstanding that it erred in holding that the Respondent’s cause of action accrued on 19/7/99 when the Appellants stopped servicing the loan as averred in paragraph 12 of the statement of claim.
An appellate Court is always preoccupied with the correctness of the decision appealed against and not whether the reasons given for the decision are correct. See NDAYAKO v DANTORO [2004] 13 NWLR (PT 889) 189 at 220.
Thus, insofar as the eventual decision is correct, the reasons given by the lower Court, however flawed they may be, are of no moment. See DAIRO v UBN PLC [2007] 16 NWLR (PT 1059) 99 at 161. The Appellants clearly did not succeed in their gallant attempt at torpedoing the ship of the Respondent’s suit, which has not been shown to be “mired in the intractable web of limitation law” so as to divest the lower Court of jurisdiction. See FAM-LAB NIG LTD & ANOR v JAHMARCO NIG LTD & ANOR (2018) LPELR-44730 (CA) 1 at 34 –per Ogbuinya, JCA.
Issues One and Two are resolved against the Appellants in favour of the Respondent. The Appellant’s contention in respect of Issue three is that the reliefs sought by the Respondent (claimant) are self-defeating, unobtainable and disclose no reasonable cause of action.
They maintain that whereas the Respondent averred in paragraph 10 of the statement of claim that the 2nd Appellant admitted owing N283,141.08 and promised to pay up in October 1999 via a letter dated 14/7/99, the 1st Appellant’s statement of account frontloaded by the Respondent shows that the account had been reduced to zero as at 30/11/2000, which is an admission against interest that defeats the claim and the Appellants are entitled to an order dismissing the reliefs sought in limine. Without much ado, the above contention is misconceived.
An objection alleging want of reasonable cause of action involves two interrelated elements. The first element is that the claimant has no cause of action against the defendant, whilst the second is that even though a cause of action is disclosed, that cause of action is not ‘reasonable’.
In DR IRENE THOMAS v THE MOST REVEREND TIMOTHY OLUFOSOYE [1986] 1 NWLR (PT. 18) 669 at 682, the Supreme Court (per Obaseki, JSC) adopted the dictum of Pearson, L.J. in DRUMMOND-JACKSON v BRITISH MEDICAL ASSOCIATION & ORS (1970) 1 WLR 688 at 696 wherein the phrase ‘reasonable cause of action’ was defined thus: “…No exact paraphrase can be given, but I think ‘reasonable cause of action’ means a cause of action with some chance of success, when…only the allegations in the pleadings are considered.
If when those allegations are examined it is found that the alleged cause of action is certain to fail, the statement of claim should be struck out.” In determining whether a reasonable cause of action is disclosed, the Court needs only to look at and examine the averments in the statement of claim: AJAYI v MILITARY ADMINISTRATOR, ONDO STATE [1997] 5 NWLR (PT. 503) 237, 7UP BOTTLING CO. LTD v ABIOLA [2001] 29 WRN 98 at 116 and OTUBU v OMOTAYO [1995] 6 NWLR (PT. 400) 247. The statement of claim must set out the legal right of the plaintiff and the obligation of the defendant.
It must then go on to set out facts constituting infraction of the plaintiff’s legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks: DR IRENE THOMAS v THE MOST REVEREND TIMOTHY OLUFOSOYE supra EGBE v ADEFARASIN supra and RINCO CONSTRUCTION CO. LTD v VEEPEE INDUSTRIES LIMITED [2005] 9 MJSC 197 at 204.
It is sufficient for a Court to hold that a cause of action is reasonable once the processes filed disclose some questions fit to be decided by a Judge notwithstanding that the case is weak or not likely to succeed. The perceived weakness of the case and/or even the fact that the case is not likely to succeed are not sufficient reasons to stop the claimant from coming before the Court to determine the infraction of his civil rights and obligations arising from the transactions alleged in the statement of claim.
The proper course for the defendant to take is to wait and take advantage of the weakness, if any, of the claimant’s case when the action goes to trial: IBRAHIM v OSIM supra at 1198, A-G, FEDERATION v AG. ABIA STATE [2001] 40 WRN 1 at 52 and MOBIL PRODUCING NIGERIA UNLIMITED v LASEPA [2003] 1 MJSC 112 at 132. The reliefs sought by the Respondent (as claimant) as endorsed in the writ of summons as well as the relevant averments in the statement of claim are set out hereinbefore.
The Appellants’ grouse, as I understand it, is not that the facts pleaded do not aggregate to a reasonable cause of action. Rather, it is that the 1st Appellant’s statement of account frontloaded by the Respondent allegedly reveals a zero debit balance as at 30/11/2000 and defeats the claim. I am afraid, the Appellants are not at liberty to allege want of reasonable cause of action on the basis of a document annexed to the writ of summons in compliance with the frontloading requirements in the Rules of Court.
In legal proceedings not conducted on the basis of affidavit evidence, documents pleaded in a statement of claim or referred to in a statement on oath and which are frontloaded as prescribed by the Rules of Court do not constitute evidence until and unless they are tendered and properly admitted in evidence as exhibits. Until that happens, the Court is not at liberty to rely or act on them. And even at that, cause of action is not determined by reference to evidence.
The point to underscore is that an application to strike out a statement of claim must rely on the defect in the statement of claim itself for its success. Any fact introduced aliunde or from the statement of defence cannot be relied upon. No evidence is admissible in an application seeking to strike out a statement of claim as having no reasonable cause of action. The application must accept the facts as averred, and the Court will determine the issue on the statement of claim alone: IBRAHIM v OSIM supra at 1197, SHELL B. P.
PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD v ONASANYA (1976) 6 SC 89 at 94 and CHEVRON (NIG) LIMITED v LONESTAR DRILLING (NIG.) LIMITED [2007] 16 NWLR (PT 1059) 168 at 179.
Thus, whatever perceived weakness of the Respondent’s case or even the fact that it is not likely to succeed because the statement of account frontloaded by the Respondent allegedly shows that the 1st Appellant’s indebtedness has been reduced to zero are not sufficient reasons to stop the Respondent from coming before the Court to determine the infraction of its civil rights and obligations arising from the loan transaction subject matter of the suit as pleaded.
Rather than allege want of reasonable cause of action, the Appellants could simply have waited patiently to take advantage of the alleged weakness when the matter proceeds to trial. Issue 3 ought to be resolved against the Appellant, and I so resolve it. That signals the collapse of this appeal. The Appellant’s objection before the lower Court as well as the present appeal against the ruling dismissing the objection are clearly not well taken. I hereby record an order dismissing this appeal for being bereft of merit. The ruling of the High Court of Lagos State delivered on 22/1/12 in Suit No.
ID/1281/2010 is hereby affirmed. The costs of this appeal are assessed at N500,000.00 against the Appellants in favour of the Respondent.
ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Peter Oyinkenimiemi Affen, JCA, made available to me a copy of the Judgment, in draft form, in which this appeal was dismissed. I agree with, and adopt as mine the resolution of the issues as done by my Learned Brother. This appeal is also dismissed by me. I abide by the orders made in the leading judgment.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have carefully perused the draft copy of the judgment delivered by my Learned Brother, PETER OYINKENIMIEMI AFFEN, JCA and found out that he rightly resolved all the Issues in this judgment. A Reasonable Cause of Action is a Cause of Action with some chance of success If when those allegations are examined, it is found that the cause of action is bound to fail, then the suit ought to be struck out.
In determining whether or not a Statement of Claim discloses a reasonable cause of action, it is irrelevant to consider the weakness of the Plaintiff’s claims. What is important is to examine the Averments in the pleadings and see if they raise some questions fit to be decided by a Judge. See FIDELITY BANK VS MARCITY CHEMICAL INDUSTRIES LTD & ORS (2022) LPELR-56866(SC), BARBUS & CO (NIG) LTD & ANOR VS OKAFOR-UDEJI (2018) LPELR.44501 (SC); RINCO CONSTRUCTION CO LTD VS VEEPEE INDUSTRIES LTD & ANOR (2005) LPELR-2949 (SC); IBRAHIM VS OSIM (1988) LPELR-1403 (SC).
In this instant case, the reliefs sought by the Respondent (as Claimant) in the Writ of Summons and Statement of Claim discloses a Reasonable Cause of Action against the Appellants. The Appellant cannot rely on a frontloaded document to claim that there was no cause of action as the frontloaded documents do not constitute evidence unless they are tendered and properly admitted in as evidence. For the above reasons, I also dismiss this appeal for being unmeritorious. Therefore, the judgment delivered on the 22nd November 2012 in Suit No. ID/1281/2010 is hereby affirmed.
I also abide by the decision of my Learned Brother as to the order made to costs.
Appearances
OKO & ORS v. A.G., EBONYI STATE
On Friday, June 04, 2021
SC.565/2015Before Their Lordships
John Inyang Okoro Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Between
Judgment
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal is consequent upon the judgment of the Court of Appeal, Enugu Judicial Division, delivered on July 15, 2015 in appeal No. CA/E/203/2013. By the said judgment the Court below, Coram M.A Oredola, T. S. Yakubu, and M. O. Bolaji- Yusuff, JJCA, dismissed the Appeal for lacking in merits.
BACKGROUND FACTS The Appellants had the singular privilege of serving as the pioneer democratically elected councillors in the Ebonyi State Local Government system from 1999 to 2002. In the course of their tenure as councillors, the Appellants were duly paid their entitlement/allowances due thereto.
However, the Appellants were allegedly denied some entitlements for which they severally complained albeit after the expiration of the tenure thereof.
As law abiding patriots, the Appellants deemed it expedient to hearken to the due process procedure under the rule of law by instituting the instant action at the Ebonyi State trial High Court on December 6, 2010 vide a writ of summons.
By the 17 paragraphed statement of claim thereof, filed along with the writ, the Appellants sought against the Respondent the following reliefs: WHEREFORE Plaintiffs claim against the Defendant as follows: LEGISLATIVE LEADER Domestic Staff N25, 353.12k Monthly by 36 Months N912,712.32K Special Assistance N8,451.04k Monthly by 36 months N304, 237.44K Personal Assistant N8, 451.04k Monthly by 36 Months N304,237.44K Accommodation A. N405, 680.00k Yearly by 3 years N1, 217, 040.00K Furniture A. For a Tenure of 3 years N1, 216, 950.00K Constituency A.
N20, 282. 50k yearly by 3 years N60,847.50K Severance A. For a Tenure of 3 years N1, 216, 950.50K TOTAL N5, 232, 974.70k DEPUTY LEGISLATIVE LEADER Domestic Staff N25, 312.50k Monthly by 36 Months N911,250.00K Special Assistance N8, 437.50 Monthly by 36 monthly N303, 750.00K Personal Assistant N8, 437.50k by 36 Months N303, 750.00K Accommodation A. N405, 000.00K 3years N1,215, 000.00K Furniture A. For a Tenure of 3 years N1,215, 000.00K Constituency A. N20, 250 yearly by 3 years N60, 750.00K Severance For a Tenure of 3 years N1,215, 000.00K TOTAL N5,224,50.00k OTHER COUNCILLORS EACH (A) i.
Domestic Servant Allowance N855, 085. 32 ii. Special Assistant Allowance N285, 028.20 iii. Personal Assistant Allowance N285, 028.20 iv. Accommodation Allowance N1, 140, 114.00 v. Furniture Allowance N1, 140, 114.00 vi. Constituency Allowance N57, 005.70 vii. Severance Allowance N1, 140, 114.00 TOTAL N4, 902, 489.40 (B). That payment for the above claim be made in the name of our Counsel – Dr. M.E. Ajogwu SAN or through him.
Not unexpectedly, the Respondent vehemently objected to the competence of the Appellant’s suit. By the Notice of preliminary objection thereof, dated and filed on 15/06/2012, the Respondent urged upon the trial High Court for the following fundamental reliefs: 1. An Order striking out this suit for want of jurisdiction. 2. And such other order or orders as the Court may deem fit to make in the circumstance.
A sole issue was raised by the Respondent for the determination of the said preliminary objection: Whether the combined operation of the Limitation Law (Cap. 102) and Ebonyi State (ApplicabIe laws) law (Cap. 40), laws of Ebonyi State of Nigeria, 2009 does not divest this Court of jurisdiction to hear and determine this action as presently constituted, same having been filed well over five years after the accrual of the cause of the action.
On November 9, 2012 at the close of counsel’s address, the trial High Court delivered the vexed ruling in regard to the Respondent’s objection to the conclusive effect: It is the view of this Court that Sections 18 and 42 of the Limitation Law of Ebonyi State and the Ebonyi State (Applicable Laws)(CAP.40) Laws of Ebonyi State which bar al (sic) other actions against Ebonyi State Government on the effluxion of five years from the accrual of the cause of action are applicable in this matter and that being the case, since this suit was instituted on 6/12/11 and the cause of action arose on (sic) 2002 immediately after the end of the tenure of the plaintiffs in 2002, the period is well over 5 years and thereby this suit is statute barred.
Whether or not the cause of action arose as a result of any Federal order or an Act will not insulate it from the relevant Limitation Laws. Therefore, having held that this suit is statute barred, the suit is struck out for want of jurisdiction by the Court to entertain it.
Not unnaturally, the Appellants were utterly dissatisfied with the ruling of the trial High Court. Thus, they appealed to the Court below, thereby urging the Court to allow the appeal and set aside the vexed ruling of the trial Court.
As evident on the face of the record, the Court below had dutifully heard the appeal and delivered the vexed judgment thereof on 18/06/2015, to the conclusive effect: For all I have said, it is clear that issues 3 and 4 be resolved and they are resolved in favour of the respondent. And having resolved all the issues in the appeal against the appellants, the appeal failed. It is lacking in merits. I dismiss it, accordingly. The ruling of BAN OGBU, J. delivered in the suit No. HAB/78/11 on 9th November, 2012, is hereby affirmed. Each side to bear own costs.
As a last resort, the Appellants filed the instant appeal on 15/07/2015. By the original notice of appeal thereof, the Appellants have solemnly urged upon the Court to set aside the judgment of the Court below, and accordingly allow the appeal.
On March 8, when the appeal ultimately came up for hearing, the learned counsel addressed the Court and accordingly adopted the articulated submissions contained in the respective briefs thereof. Thus, resulting in reserving the judgment.
Most particularly, the Appellants’ brief settled by Dr. ME Ajogwu, SAN on 09/11/2015, spans a total of 19 pages.
At pages 3-4, three issues have been couched: (1) Whether the Lower Court was right in construing the accrual of right per se to be coterminous with right of action or cause of action. (2) Whether the Honourable Court below was right in construing the length of time when the cause of action accrued in utter disregard of the intervening effects of Exhibits ‘C’, ‘D’ and ‘H’. (3) Whether the Limitation Law deals with accrual of right per se instead of limiting itself to the accrual of right of action or cause of action.
The issue No. 1 is argued at pages 4 – 8 of the said brief. In a nutshell, it is submitted that the crux of the issue is the real meaning of ‘right’, as different from what right can bring to us, and when such right can affect others. See Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 as amended, Section 6 (6) (a) (b) of the 1999 Constitution (supra); BLACK’S LAW DICTIONARY, 7th Edition @ 1322.
It is further submitted, that what happened to the Appellants in 2002 was accrual of rights perse; which gave them no right of action until they waited to exercise same and it was turned down. And that the rights that accrued to the Appellants remained therewith unviolated until they made the request in 2008. Thus, when their request was turned down, the Appellants were then given the right to go to Court, right and the cause of action (complaint). See DANGANA VS. GOVENOR OF KWARA STATE (2001) 50 WRN 40 @ 51; LASISI FADARE VS.
AG OYO STATE (1982) ALL NLR (pt. 1) 26; (1982) FNLR 1; (1982) 4 SC 1 @ 6-7; SAVAGE VS. O. UWECHIA (1972) 3 SC 14.
It was posited that the declaration by the Revenue Mobilization, Allocation and Fiscal Commission, was at its best a declaration for existence of rights and not accrual of right of action or cause of action. That even then, the Appellants were not aware of the existence of the right until 4th of July 2008 when Exhibits ‘C’ & ‘D’ were made known to them and the road was not clear for them until relieved by’ Exhibit ‘H’. The Court is urged to so hold.
The issue No. 2 is argued at pages 9-11 of the brief to the effect that Exhibits C & D were certified afresh and shown to the Appellants. Therefore, time could not have begun to run against them before they got the full knowledge of what was offered thereto. See JALLCO LTD VS. OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR (pt. 391) 534 @ 547; MUOMAH VS. SPRING BANK PLC (2009) NWLR (pt. 1129) 553 @ 572. The Court is urged to hold, that time started to run with the arrival of Exhibits C & D, and the liberating effect of Exhibit H.
The issue No. 3 is canvassed at pages 11 – 14 to the effect that accrual of right is not co-terminus with accrual of cause of action. That the right must exist before it is breached by the defendant’s action. See WOHEREM VS. EMEREUWA (2004) 6-7 SC 161, et al.
Conclusively argued on issue 3 that it is the cause or action and not the accrual of right that is subject to limitation law, (and the limitation Act) which limits action after 5 years have elapsed does not affect the instant suit. The Court is urged to so hold. Conclusively, the Court is urged upon to allow the appeal, set aside the judgment of the Court below and direct that the Appellants are within their time to bring the instant action.
Contrariwise, the Respondent’s brief of argument settled by Rt. Hon. Augustine Nwonkwagu Esq, on 07/04/2016 spans a total of 22 pages.
At page 4 of the said brief, three issues have been couched: 3.02 Whether the Court below was wrong in holding that the cause of action in the instant case accrued in 2002 when the appellant left office at the expiration of their tenure of office as councillors? 3.03 Whether the documentary Exhibits C, D and H have the legal clout to override Law 005 of 2002 being a law validly enacted by the House of Assembly of Ebonyi State, and if not, whether Exhibits C and D made in 2001, and Exhibit H made in 2010, to which the respondent did not reply could be seen as constituting an intervening negotiation/documents capable of shifting the period of accrual of a cause of action? 3.04 Whether appellants can effectively rely on the case of Salako Vs L.E.D.B, a case decided under the Public Officers Protection Ordinance as authority for exempting their claims from the operation of the Ebonyi State Limitation Law, 2009, and if the answer is in the affirmative, whether it is not too late in the day for them to argue this point.
The issue No. 1 is argued at pages 4-12 of the Respondent’s brief. It is submitted in the main that the Local Government Council Elections in Ebonyi State were conducted on 05/12/1998. The elected councillors (Appellants’ inclusive) were sworn in 1999 for three years tenure terminating in 2002.
Further submitted that, there is no disagreement as to the period the Appellants became councillors and the fact that they had several heads of entitlements, some of which they enjoyed while in office, some they ought to have enjoyed on leaving office.
Firstly, in regard to the point at which these rights became ripe, it is submitted that there is no gainsaying the fact that the last of the 4 rights severance allowance became ripe in 2002, all the duties enabling them to earn the allowances having been performed and concluded.
As to the second question, when the rights accrued and the proper time for the Appellants to sue for same, it is submitted that the non payment of the severance entitlements climaxed in 2002, when the Appellants left office and their severance allowances were not paid.
Thirdly, that Exhibits C & D were rebutted by the Respondent who went ahead to enact Law No. 005 of 2002. It is argued that this was a good time for the Appellants to test the validity of the law. Allegedly, the Appellants reclined and waited till 2011, at least 10 years after the last of the alleged denials, before they approached the Court for redress.
Further argued, that the Court below did not equate accrual of right with right of action and that it’s the accrual of cause of action that confers on the aggrieved party the right to institute an action to enforce that right. See BALA HASSAN VS. BABANGIDA ALIYU (2010) 43 NSC 219@ 241 et al.
It was postulated, that it’s interesting to note that Exhibits E, F and G (pages, 133, 134 and 135 of the Records of Appeal) were made on 23/05/2008, 27/05/2008, and 22/04/2008, while Exhibits C and D made in 2002 were said to be brought to Appellants’ knowledge on 04/07/2008 thereby raising the question as to whether it’s possible the Appellants became aware of their benefits about 3 months after they had written for something they were not aware of: a case of inconsistent and illogical argument. The Court is urged to so hold. See KALANGO VS. GOVERNOR OF BAYELSA STATE (2009) 37 NSCQR 42.
The issue No.2 is argued at pages 12-17 of the Respondent’s brief to the conclusive effect that the presence of Exhibits C-D made in 2001 but certified in 2008, and Exhibit H made in 2010, did not whittle down the effect of the Law No. 005 of 2002, which was to exempt the Appellants from severance allowances and other benefits as contained therein. The Court is urged to so hold.
The issue No. 3 is argued at pages 17-19 of the said brief to the conclusive effect that the instant action was commenced in 2011, two years after the coming in to effect of the Limitation law of Ebonyi State. That neither the Public Officers Protection Ordinance nor its successor, the Public Officers Protection Act is a valid law of reference in this action. See NZE BERNARD CHIGBU VS. TONIMAS NIG LTD (2006) SCNJ 262; CPC VS. OMBUGADU (2013) 55 NSCQR 570; CONTRACT RESOURCES VS. STB (2013) 53, 2 NSCQR 600.
In the circumstances, the Court is urged to expunge the Appellants’ argument seeking exemption of the case thereof from the application of the Limitation Law CAP. 102 Laws of EBONYI STATE, 2009. Conclusively, the Court is urged to dismiss the appeal and affirm the Judgment of the Court below.
Having amply considered the circumstances surrounding the instant case, the submissions of the learned counsel contained in the respective briefs thereof vis-a-vis the Record of Appeal, I am amenable to adopting the 3 issues canvassed by the Appellants in the brief thereof for ultimate determination of the appeal, anon.
PRELIMINARY OBSERVATION It’s obvious on the face of the records of appeal that the original notice of appeal (pages 301 – 304) is predicated upon a couple of grounds, viz: 2. GROUNDS OF APPEAL i) The lower Court erred in law when it misconstrued accrual of right to be the same thing as accrual of right of action. PARTICULARS OF ERROR … ii) The lower Court erred in law when in construing the effective period of limitation it closed its eyes to the legal effects of Exhibit ‘D’ and Exhibit ‘H’. PARTICULARS OF ERROR …
So far, there is no indication from the records that the Appellants rely on grounds other than those two upon which the original notice of appeal is predicated. Thus, it would tantamount to breaching the fundamental rules of procedure and practice for the Appellants to now raise a total of three issues from the two grounds in question. Undoubtedly, the Appellants have disposed themselves to the unpardonable practice of proliferation of issues. Proliferation of issues is highly deplorable.
In drafting grounds of appeal and issues for determination, counsel must at all times avoid proliferation of issues and this is done by distilling a sole issue from one or more grounds of appeal, thereby avoiding multiplicity of issues from the same ground. See BILLE VS. THE STATE (2016) LPELR- SC 578/2013 @ 7 Paragraphs B – C; NWAIGWE VS OKERE (2008) 5 -6 SC (Pt. 11) 93; INEGBEDION VS. SELO-OJEMEN (2013) 1 – 2 SC (Pt. 11) 59; UGO VS. OBIEKWE (1989) 2 SC (Pt. 11) 41.
Most regrettably, none of the three issues raised by the Appellants (nay the Respondent) in the brief thereof specifically relates to any of the two grounds in question, yet, the essence of relating issues to ground of appeal is not merely important but fundamental. Thus, once an issue is resolved in favour of the Appellants, the ground relating to that issue automatically succeeds thereby resulting in allowing the appeal. See JOSIAH CORNELIUS LTD VS.
EZENWA (1996) LPELR – SC 102/1994; UGO VS OBIEKWE (1989) 1 NMLR (Pt. 99) 566; ZABUSKY VS ISRAELI AIRCRAFT IND. (2008) NWLR (Pt. 1070) 109 @ 131 Paragraphs D - G.
In the circumstances, I am of the considered view that there is only one crucial issue that could appropriately be said to have arisen from the two grounds of appeal: Whether or not the Court of Appeal, Enugu Judicial Division was right when it held that “the cause of action clearly accrued as at the time the appellants left office at the expiration of their tenure of office as councillors in 2002” thereby resulting in dismissing the Appellants appeal on the ground that their suit was statute barred.
DETERMINATION OF THE SOLE ISSUE ARISING FROM BOTH GROUNDS 1 & 2 OF THE NOTICE OF APPEAL. Instructively, the vexed judgment of the Court below spans a total of 24 pages (277 – 300) of the record of appeal. After summarising the argument of the learned counsel to the respective parties, the Court proceeded in earnest to determine the crucial issue raised in the appeal (pages 290 - 297 of the record).
Literally, the noun ’cause’ simply means to bring about or effect. A ’cause of action’ invariably denotes a combination (group) of operative facts thereby resulting in one or more bases for suing. In a sense, a cause of action is a factual situation that entitles one person to a remedy in Court from another person. Jurists all over the common law world had found it difficult, if not impossible, to accord a proper definition to the most perplexing term – ’cause of action’. Cherishingly however, Edwin Bryant, over a century ago offered some respite.
According to the 19th century erudite jurist, a cause of action: [M]ay be defined generally to be a situation or state of facts thereby entitles a party to maintain an action in a judicial tribunal.
This state of facts may be - (a) a primary right of the plaintiff actually violated by the defendant; or (b) the threatened violation of such right, which violation the plaintiff is entitled to restrain or prevent, as in the case of actions or suits for injunction; or (c) it may be that there are doubts as to some apparent adverse right or claim which the plaintiff is entitled to have cleared up, that he may safely perform his duty, or enjoy his property. See Edwin E.
Bryant: THE LAW OF PLEADINGS UNDER THE CODES OF CIVIL PROCEDURE (1899) 2nd edition @ 170; BLACK’S LAW DICTIONARY, I edition (2019) @ 275. Undoubtedly, it was this master piece definition of ’cause of action’, as enunciated by Edwin Bryant over a century ago, that was adopted by renown jurists all over the common law world. See LAGOS STATE BULK PURCHASE CORPORATION VS PURIFICATION TECHNIQUES NIGERIA LTD (2012) 521 NSCQR 274 @ 292; YARE VS NATIONAL SALARIES WAGES AND INCOME COMMISSION (2013) 12 NWLR (Pt. 1367) 173 @ 186; et al.
Contrary to the Appellants’ postulation, the Court below was not oblivious to the apparent disparities that naturally exist between a right of action, on the one hand, and a cause of action, on the other.
As aptly postulated by the Court below (page 292, lines 6 - 25 of the record):
“The parties are ad idem that a right is different from a cause of action and the former precedes the latter. I agree with both of them.”
In the instant case, as aptly found by the Court below (page 293), the Appellants in the course of their service and tenure as councillors were duly entitled to some emoluments - otherwise termed salaries and allowances: “In that regard, Exhibit C (REVENUE MOBILAZATION ALLOCATION AND FISCAL COMMISSION CIRCULAR, dated 07/11/2001) is very much instructive.
Exhibit C was unusably addressed to the following distinguished public officials: • Deputy Chief of Staff to the Vice President, • Speakers of State House of Assembly, • Bureau for Local Government Affairs, • Auditors - General for Local Governments, • Local Government • And Legislative Leaders.
What’s more, the heading (main theme) of Exhibit C is most explicit: “EXPLANATORY NOTES ON CONCILLORS REMUNERATIONS PACKAGE.”
Exhibit C spans a total of three pages (pages 127 – 129 of the record). It was duly signed by the then Chairman of the RCMAF Commission, in the person of Engr. Hamman A.
Tukur mni, to the conclusive effect thus: The Commission in accordance with the provisions of the 1999 Constitution has reviewed the Remuneration of Political and Public Affairs Office Holders. A report on this has been forwarded to Government for implementation. … 9. There is also the vehicle loan which has to be repaid in full; while the furniture allowance is paid enbloc only once in the councillor’s tenure. The severance gratuity is paid enbloc at the end of the councillor’s successful tenure. Prorata gratuity is not parable. These are shown in table C. 10.
It is our hope that you will find these explanatory notes useful in addressing these contentious issues and note that this circular is also copied to all stated Executive Governors for their information and necessary action.
Exhibit D (pages 130 - 132 of the record) reads: A. LOCAL GOVERNMENT REMUNERATION PACKAGE FOR POLITICAL OFFICE HOLDERS: ANALYSIS OF PERSONAL MONTHLY EMOLUMENTS … B. LOCAL GOVERNMENT REMUNERATION PACKAGE FOR THE POLITICAL OFFICE HOLDER; ANALYSIS OF NON PERSONAL MONTHLY EMOLUMENTS. … C. LOCAL GOVERNMENT REMUNERATION PACKAGE FOR
POLITICAL OFFICE HOLDERS: ANALYSIS OF MONETISED BENEFITS
It is pertinent to equally allude to some of the other exhibits relied upon by the Appellants in the course of the trial of the case: EXHIBIT E: (page 133): Dated 23/05/2008: TITLED: RE INFORMATION PAYMENT OF REMUNERATIONS PACKAGE TO FORMER COUNCILLORS” • EXHIBIT F: (Page 134) Dated 27/05/2008 • EXHIBIT H: (Page 136-137) • EXHIBIT I: (Page 138-140) Dated 06/04/2011. “NOTICE OF INTENTION TO COMMENCE SUIT”
At page 10 (Paragraph 4.03) of the brief thereof, the Appellants alleged that until the July 4, 2008, they had not become aware that the offer of Severance Allowance was available thereto and that on the date in question, following the arrival of Exhibits C, D and H, that the cause of action accrued. What’s more, it was posited that - The Appellants were not communicated directly of their rights in 2002, all they knew was that the State Government had blocked a venture by the Federal Government to give them a severance package.
The real letter communicating rights to severance package was certified and dated of 4th July, 2008.
However, the Court below apparently is impervious to the Appellants’ argument. According to the Court below (page 295 - 296 of the record): Exhibits C and D clearly indicate the earned entitlements of the appellants. In other words, their right to be paid their earned entitlements as per Exhibits C and D gave them the right to litigate on that cause of action, that is, the failure of the respondent to pay them their earned entitlements, as councillors. It is instructive, that Exhibits C and D were made on 7th November, 2001.
They were certified on 4th July, 2008 and not that they were made on 4th July, 2008 as conversed by learned senior counsel to the appellants therefore, can it be rightly said that the cause of action clearly accrued on 4th July, 2008? Certainly not? The cause clearly accrued as at the time the appellants left office at the expiration of their tenure of office as Councillors in 2002.
The facts that the appellants were aware of their earned entitlements which were not paid by the respondent who took steps to block the payments in 2002 is evident at paragraph 20 of the appellants’ counter affidavit …
The Court below equally alluded to Exhibits E and F (pages 133 – 134 dated 23th and 27th of May, 2008), to the effect that: [T]he appellants were aware of their right to their earned salaries and allowances that were not paid to them perhaps, if the appellants had sued qua timet on their entitlement and nevertheless, contemporaneously engaged in correspondences and negotiations, they would not have lost their right of action on this matter. …what a pity for crying “wolf” when the head is off!
In my considered view, the foregoing findings of the Court below are cogent, unassailable and duly supported by the pleadings of the respective parties and evidence on record.
Invariably, the noun ‘right’ literary means that which is proper under law, morality, ethics, et al; in contradiction to wrong; know right from wrong.
Jurisprudentially, the term ‘right’ denotes something that is due to a person by just claim, legal guarantee or moral principle - the right of liberty; a power, privilege, or immunity accorded a person by law the right to dispose of one’s property or estate; a legally enforceable claim that another will do or will not do a given act; the interest, claim, or ownership that one has in tangible or intangible property; the privilege of corporate shareholders to purchase newly issued securities in amount proportionate to their respective holdings.
According to Gray: The right is correlative to duty, where there is no duty there can be no right. But the converse is not necessarily true. There may be duties without rights. In order for a duty to create a right, it must be a duty to act or forbear. Thus, among those duties which have rights corresponding to them do not come the duties, if such there be, which call for an inward state of mind, as distinguished from external acts or forbearances. It is only to acts and forbearances that others have a right. It may be our duty to love our neighhour; but he has no right to our love.
See John Chipman Gray: NATURE AND SOURCES OF THE LAW edition 1921 @ 89, copiously alluded in BLACK’S LAW DICTIONARY, edition 2019 @ – 1582. IN AMERICAN BANK & TRUST CO. VS. FEDERAL RESERVE BANK OF ATLANTA (1921) 256 @ 500 US. 350, 358, 41 SC et 499 @ 500, the US Supreme Court aptly held: “[T]he word ‘right’ is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified.” Undoubtedly, the term ‘right’ has been a subject of definitions in quite a plethora of authorities by this Court.
In the case of SHITTA-BEY VS PUBLIC SERVICE COMMISSION (1981) LPELR - SC. 57/1980, this Court aptly postulated regarding the definition and characteristics of right: Again, it seems to me that Exhibit “D” invests the Appellant with a legal right to remain in office and carry out his public duties as a civil servant; and one of the characteristics of a legal right is in the word of Salmond “that” it avails against a person upon whom lies the correlative duty.
He may be described as the person bound or as the subject of the duty or as the person of incidence (See Salmond on Jurisprudence 12th Edition (1996) P. 221, Paragraph 41 (item 2). Per Idighe, JSC@ 38 paragraphs E - G. Again, in the case of AG of Lagos State Vs. AG FEDERATION (2004) LPELR – SC 70/2004, this Court aptly postulated: What is legal right? A legal right in my view, is a right recognisable in law. It means a right recognised by law and capable of being enforced by the plaintiff.
It is a right of a party recognised and protected by a rule of law, the violation of which would be a legal wrong done to the interest of the plaintiff; even though no action is taken. The determination of the existence of a legal right is not whether the action will succeed at the trial but whether the action denotes such a right by reference to the enabling law in respect of the commencement of the action. Per Niki Tobi, JSC @ 97-98 paragraphs G - B.
As aptly found by the Court below in the instant case, the action was statute barred for having been filed outside the statutory time limit. The Court below was absolutely right, in my view. Indeed, the doctrine is well settled beyond peradventure, that the law provides for commencing an action within a prescribed period in regard to a cause of action accruing to the plaintiff, proceeding shall not (ought not) be brought after the time so prescribed by the statute (has lapsed).
See EGBE VS ADEFARASIN (1985) 1 NWLR (Pt. 3) 549 @ 568 – 569: An action brought outside the prescribed period offends against the provision of the section and does not give rise to a cause of action. A cause of action means the factual situation stated by the Plaintiff, if substantiated, entitle him to a remedy against the defendant. See Latana Vs. Cooper (1964) 2 All ER 929. The claim must rest on and be supplied by a cause of action. Of course, the foregoing trite fundamental doctrine is not devoid of an exception thereto.
As aptly pontificated by this Court in HASSAN VS ALIYU (2010) LPELR SC 170/2009, the exception duly applies: Where the public officer concerned fails to act in good faith or acts in abuse of office or maliciously, or with no semblance of legal justification as decided in the cases of Lagos City Council vs. Ogunbiyi (1969) All NLR 297 at 299; CBN VS OKOJIE (2004) 10 NWLR (Pt. 882) 448 AT 523; NWANKWO VS ADEWUNMI (1966) All NLR 119 at 192; Offoboche vs. Ogoja Local Government (2001) 16NWLR (Pt. 739) 458. Per Onnoghen, JSC (as he then was).
Most instructively, as aptly postulated above, the effect of limitation on the action is that it takes away the Plaintiff’s right to institute the action, but leaving him with his cause of action intact albeit devoid of the right to some judicial relief.
As aptly reiterated in HASSAN VS ALIYU (supra); when an issue of limitation of time to institute an action is raised, it is a preliminary issue touching on the competence of not only the action, but of the Court before which the action pends.
It is long settled that an issue of jurisdiction is a periphery matter which must be resolved before proceeding to determine the merits of the case, where the issue is found not have any merit… It is trite that jurisdiction is very fundamental to adjudication and where a Court lacks the competence to hear and determine a matter but proceeds to do so, an appellate Court is duty hound to nullify a decision resulting therefrom. Per Onnoghen, JSC (as the learned Lord then was).
In the instant case, the Court below wisely hearkened to the formidable ‘Voice of’ wisdom’ and arrived at the most inevitable conclusion in the vexed judgment: “And having resolved all the issues in the appeal against the appellants, the appeal failed. It is lacking in merits. I dismiss it, accordingly.”
My noble Lords, against the backdrop of the foregoing postulations, it has become rather obvious that the sole issue (distilled from the Appellants’ two grounds of the original notice of appeal), ought to be, and same is hereby resolved against the Appellants.
Thus, having resolved the sole issue against the Appellants, there is no gainsaying that the appeal resultantly fails, and same is hereby dismissed by me. Consequently, the judgment of the Court of Appeal, Enugu Judicial Division, delivered on June 18, 2015 in appeal No. CA/E/203/2013, is hereby affirmed. There shall be no order in regard to costs.
Before placing the very last dot to the instant judgment, I have deemed it compellingly expedient to say that the Appellants were solely responsible for the predicament thereof. As aptly alluded to by the Court below in the vexed judgment, the Appellants had not been vigilant enough in pursuing the rights vis-a-vis the prosecution of the case thereof. Yet, the biblical truism is indeed trite, that the fundamental condition upon which the Almighty God, the Beneficent graciously accorded man liberty is ETERNAL VIGILANCE.
Thus, the well cherished equitable doctrine VIGILANTIBU ET NON DORNTILNTIBUS JURA SERVENIAM – The laws aid the VIGILANT, not the INDOLENT!
In that sense, the Legendary William Shakespeare must have been absolutely not far from the truth, when he lyrically philosophised: The enemy increases every day, We, at the height are ready to decline. There is a tide in the affairs of men. Which taken at the flood leads on to fortune. Omitted, all the voyage of their life is bound in shallows and in miseries.
See JULIUS CAESER (‘KAISER’; properly so pronounced) Act IV, SCENE 3; AROMIRE VS. AJOMAGBERIN (2011) LPELR -3809 (CA) Per Saulawa, JCA (as he then was).
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered, by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC and to underscore the support in the reasonings from which the decision emanated, I shall make some remarks.
The appellants commenced the action leading to this appeal by Writ of Summons in the High Court of Ebonyi State sitting at Abakaliki per B.A.N Ogbu J. On commencement, the respondent, as defendant raised a preliminary objection to the jurisdiction of the Court on the ground that the suit was statute barred.
The learned trial judge upheld the objection and struck out the suit. On appeal to the Court of Appeal sitting at Enugu or Court below or lower Court, Coram: A.A. Oredola, T.S. Yakubu, M.O. Bolaji - Yusuf JJCA, affirmed the decision of the trial Court. The appellants being dissatisfied have come before the Supreme Court to ventilate their grievance.
BRIEF STATEMENT OF FACTS The appellants served as councillors in the Ebonyi State Local Government system from 1999 to 2002 when their respective tenures lapsed. While serving as councillors, the appellants continued to receive their salaries and some other entitlements/allowances. They were however allegedly denied some entitlements for which they severally complained, albeit, after they left office.
Pages 133, 134 and 135 of the Record contain the appellants’ letters to Government asking for the payments most of which became due after the Revenue Mobilization, Allocation and Fiscal Commission’s Explanatory Circular of Councillors Remuneration dated 7th November, 2001.
By the Circular of 7th November, 2001 (page 130 of the Record), some of the entitlements due to the councillors were personal to each of them and were regarded as monthly take home pay. Other entitlements were those for staff employed by each councillor. There were yet other entitlements/allowances for accommodation, furniture, constituency and severance being claimed by the appellants. While some of those allowances became due and payable on assumption of office, the Severance Allowances became due and payable on completion of the tenures of the respective councillors in 2002.
The allowances and benefits of the councillors were not a subject of contention but the suit having been commenced outside the time statutorily provided by the law, the respondent raised a preliminary objection on that ground. The objection was upheld by the trial Court and the decision affirmed by the Court below on appeal, hence this appeal.
On the 9th March, 2021, date of hearing, learned senior counsel, D.D. Dodo adopted the brief of argument settled by Dr. M.E Ajogwu SAN and filed on 9/11/15. He distilled three issues for determination which are as follows:- 1. Whether the lower Court was right in constituting the accrual of right per se to be coterminous with right of action or cause of action. 2. Whether the Honourable Court below was right in construing the length of time when the cause of action accrued in utter disregard of the interviewing effects of Exhibits ‘C’, ‘D’ and ‘H’. 3.
Whether the limitation law deals with accrual of right per se instead of limiting itself to the accrual of right of action or cause of action.
Paul Awada Esq, learned counsel for the respondent and being the Director Civil Litigation (DCL) of the Ebonyi State Ministry of Justice, adopted the brief of argument settled by the Attorney General, Augustine Nwankwagu Esq, filed on 2/4/2016 and deemed filed on 24-1-2018. He formulated three issues for determination, viz:- 1. Whether the Court below was wrong in holding that the cause to action in the instant case occurred in 2002 when the appellants left office at the expiration of their tenure of office as councillors? 2.
Whether the documentary Exhibits C, D and H have the legal clout to override Law 005 of 2002 being a law validly enacted by the House of Assembly of Ebonyi State, and if not, whether Exhibits C and D made in 2001, and Exhibit H made in 2010, to which the respondent did not reply could be seen as constituting an intervening negotiation/documents capable of shifting the period of accrual of a cause of action? 3.
Whether appellants can effectively rely on the case of Salako Vs L.E.D.B, a case decided under the Public Officers Protection Ordinance as authority for exempting their claims from the operation of the Ebonyi State Limitation Law, 2009, and if the answer is in the affirmative, whether it is not too late in the day for them to argue this point?
I shall utilise the issues donated by the appellants and together. ISSUES 1, 2 & 3 1. Whether the lower Court was right in construing the accrual of right per se to be coterminous with right of action or cause of action. 2. Whether the Honourable Court below was right in construing the length of time when the cause of action accrued in utter disregard of the intervening affects of Exhibits C, D and H. 3. Whether the Limitation Law deals with accrual of right per se instead of limiting itself to the accrual of right of action or cause of action.
Learned counsel of the appellants contended that accrual of rights is not the same thing as accrual of cause of action or accrual of right of action. That an unviolated right does not confer on the holder of right, any right of action because there is no cause of action. That right of action and cause of action can be conterminous but accrual of right per se stands on its own.
He stated on that accrual of right cannot order the constitution to entitle the holder of the right to call in aid the judicial powers of the Court under our laws. That it is the infringement of that right which is the cause of action and gives the holder the right to activate the judicial powers of the Court under Section 6(6) (a) & (b) of the Constitution 1999 as amended (CFRN).
For the appellants, it was submitted that unless the civil rights and obligations of a person fall for determination because of infringement or incursion by another person or authority, the Courts of the country have no right of adjudication as the accrued rights had not been violated as happened in this instance to the appellants in 2002. That the rights that accrued to the appellants remained with the appellants unviolated until the appellants made the request in 2008 when the request was turned down giving the appellants the rights to go to Court.
For the definition of cause of action, Learned counsel cited Dangana v Governor of Kwara State & Anor (2001) 50 WRN page 40 at 51.
Learned counsel for the appellants stated that accrual of right is not coterminous with accrual of right of action or accrual of cause of action. That the declaration by the Revenue Mobilization, Allocation and Fiscal Constitution was at its best declaration of existence of rights and not accrual of right of action or cause of action. That even then the appellants did not become aware of the existence of the right until 4th July, 2008 and 6th December, 2011 when the suit was filed.
For the appellants, it was submitted that it was alleged that exhibit C which carried the publication of the offer by the Federal Government got in trouble with the State Government and in Ebonyi State of the appellants, that the government slammed Law 005 of 2002 to cover up the publication and when this imprisonment of Exhibits C, D was lifted by the appearance of exhibit H i.e. by overriding superior effect of exhibit H, time began to run.
That exhibits C and D were certified afresh and shown to the appellants and so time could not have begun to run against the appellants before the appellants got the full knowledge of what was offered to them. He referred to Jallco Ltd v Owoniboy Technical Services Ltd (1995) 4 NWLR (pt 391) 534 at 547; Muomah v Spring Bank Plc (2009) 3 NWLR (pt 1129) 553 at 572.
Learned counsel for the appellants contended that anticipatory rights of action are not proper in our Court and are not applicable, He cited Section 6(6) (b) CFRN.
That the effect of a statute of limitation on an action is that it takes away the right of the plaintiff to institute the action but leaves him with his cause of action intact though without the right to enforce same or right to judicial relief. He cited Woherem JP v Emereuwa (2004) 6-7 SC 161.
That it is the cause of action and not the accrual of right that is subject to limitation law and so the Limitation Act of Ebonyi State which limits action after 5 years had elapsed, does not affect this suit.
In response, learned counsel for the respondent submitted that the rights of the appellants became ripe in 2002 when the duties enabling them to earn the allowances having been performed, and concluded as they left office in 2002. That by 2011 when they instituted the action when their request for their entitlements were rebuffed in 2002, the limitation law had operated to stop them. That the appellants had slept on their operating rights. He cited Kalango v Governor of Bayelsa State (2009) 37 NSCQR 42.
That the presence of Exhibits C, D made in 2001 but certified in 2008 and Exhibit ‘H’ made in 2010 did not whittle down the effect by Law No. 005 of 2002 which is to exempt the appellants from severance allowances and other benefits as contained in the said law.
What is critically at stake in this matter under review is the real meaning of right as distinct from what rights can bring to a person and when such rights can affect the relationship with others.
Under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 as amended (CFRN for short), every Nigerian citizen has fundamental rights, which rights accrue from birth and remain with them until death. If those rights are not violated in any form or way, the holder of the rights would neither have cause of action against the infractor or right of action against anybody. The definition of rights as depicted in Blacks Law.
Dictionary, 7th Edition page 1322 would bring what is meant by rights to light; it is thus:- “Something that is due to a person… legal guaranty or moral principle. A purer privilege or immunity secured to a person by law, legally enforceable claim… a recognized and protected interest, the violation of which is a wrong…. and gives rise to a cause of action or a right of action.” In the wake of the definition above, it is to be seen that accrual of rights is not the same thing as accrual of cause of action or accrual of right of action.
The implication is that an unviolated right does not confer on the holder of right, any rights of action because there is no cause of action. In my humble view therefore, right of action and cause of action can be coterminous but accrual of right per se stands alone. It follows that accrual of right under the Constitution entitles the holder of the right to call in aid the judicial powers of the Court under our statutes.
It is the infringement of that right which is the cause of action and gives the holder the right of action to activate the judicial powers of the Court under Section 6 (6) (a) & (b) of the CFRN 1999 as amended.
The said section provides: “(6) The judicial power vested in accordance with the foregoing provisions of this section: (a) Shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of the Court of law; (b) Shall extend to all matters between persons or between governments or authorities and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.” It is only when the civil rights and obligations of a person fall for determination because of infringement or incursion by another person or authority, the Courts of the country have a right of adjudication.
That is to say, in the face of accrued rights which had not been violated, tampered with or alleged to be violated or tampered with, the judicial powers of the Courts of Nigeria remain latent in the face of naked accrued rights.
To consider and reach an answer into what has brought about this appeal and whether or not the Court below was right in holding that the action had become statute barred for which the rights that had accrued were no longer actionable.
Getting back to the beginning, the Local Government Council Elections in Ebonyi State were conducted on the 5th day of December, 1998. Elected Councillors in the State, including the appellants were sworn in 1999 for a three year tenure that would terminate in 2002. The Councillors were entitled to certain benefits, some of which were payable at the end of each year while others became due on their vacation of office after their tenure in 2002.
From the facts, there is no disagreement as to the period the appellants became councillors. There is also no dispute as to the fact that the appellants had several heads of entitlements to their favour some of which they enjoyed while in office while some they ought to have enjoyed on their leaving office in 2002.
The points of disagreement however are: 1. At which point did these rights become ripe, i.e. when did the appellants’ rights accrue? 2. When the rights accrued, when was it the proper time for the appellants to sue for them, i.e. when did the cause of action accrue? 3. When the appellants became aware of their rights but were denied the enjoyment thereof, what did they do?
What comes up firstly is at which point did these right become ripe, i.e. when did the appellants’ right accrue? I posit that the salaries of the appellants’, their domestic staff’s, personal assistant’s and special assistants’ allowances all became ripe for enjoyment in piecemeal at the end of each month of their three years in office. On the other hand, accommodation, furniture and constituency allowances all became also due in piecemeal at the end of each year of their three years in office.
The severance allowances were due on their vacation of office after their individual tenures expired in 2002.
It is not in doubt or for debate that the appellants had rights i.e. rights to their salaries and other sundry allowances since they performed their duties for three years which entitled each of them to: a. Salaries for thirty-six months payable monthly; b. Salaries of their domestic staff, special assistants and personal assistants for thirty-six months payable monthly; c. Accommodation and furniture allowances for three years payable yearly; d. Severance allowances for three years payable at the end of their respective tenures.
While, the appellants are not complaining of their monthly salaries as these were paid regularly till the end of their tenures. This was not true of other entitlements.
I agree with learned counsel for the respondent that from the foregoing analysis, there is no gainsaying the fact that the last of these rights - Severance Allowance - became ripe in 2002, all the duties enabling them to earn the allowances having been performed and concluded.
The second question ensuing is: When the rights accrued, when was it the proper time for the appellants to sue for them? What crops up is that the proper time for the appellants to approach the Court for their rights varied from one entitlement to the other. The proper time for approaching the Court for each of the monthly entitlements was at the end of each month when it became clear to the appellants that the Government was not forthcoming in paying them. For the yearly allowance, the proper time was at the end of each year.
This alleged non-payment of their entitlements climaxed in 2002 when they left office and their Severance Allowances were not paid.
The third question: When the appellants became aware of their rights but were denied the enjoyment thereof, what did they do? From what the statement of claim at the trial Court shows, the appellants made several efforts to have their accrued entitlements paid. The Government did not respond favourably. ‘They complained to the Revenue Mobilization Allocation and Fiscal Commission which resulted in Exhibits C& D.
This letter was rebuffed by the respondents who went ahead to enact law No. 005 of 2002. This was a good time for the appellants to test the validity of the law. They reclined. They waited till 6th December, 2011, at least ten years after the last of the alleged denials before they approached the Court for redress. As I had earlier stated, there is a difference in accrual of right from accrual of cause of action, even though it is a very thin line of demarcation between them. When a right accrues, it is the duty of the beneficiary of that right to make moves to claim his right.
When the move is made without success or a favourable response from the other party, there is nothing more to infer than that that refusal to respond is tantamount to a denial. At this point, the cause of action has accrued and is now enforceable through the instrumentality of a judicial process. The lower Court was on the proper pedestal when it held that: “Hence, the wrongful act of the respondent which gave the appellants their cause of action is the failure of the former to pay the latter their earned entitlements.” See page 295 of the Record of Appeal.
In reiteration, a right of action is the right to bring a specific case to Court but the right is enforceable with the happening of certain events. These events which must take place before the claimants right of action is activated and collectively referred to as cause of action. It is the accrual of the cause of action which confers on the aggrieved party the right to institute an action to enforce that right.
As my learned brother, Ngwuta JSC stated which I adopt, “The phrase cause of action, connotes the totality of all material facts necessary to establish a legal right in a particular case”. See Nigeria Ports v Beecham (2012) 52, 2 NSCQR 219 at 241. See also Bala Hassan v Babangida Aliyu (2010) 43 NSCQR 139, Bulk Purchase Corporation v Purification Techniques Nig (2012) 521 NSCQR 274 at 292; Yare v National Salaries, Wages and Income Commission (2013) 12 NWLR (pt 1367) 173 at 186.
In the determination of when the cause of action in a suit accrued for the purpose of the application of the Statute of Limitation Cap. 102, Laws of Ebonyi State, 2009, the trial Court is expected to peruse the writ of Summons and the Statement of claim which is what the trial Court did on this instance. See Nana Opia v INEC (2014) 572 NSCQR 1239 at 1260 per Galadima JSC.
It was clear to appellants when they became councillors that they were entitled to personal salaries, salaries of their domestic staff, personal and special assistants on monthly basis, accommodation, furniture and constituency allowances on annual basis and severance allowances at the end of their service. Of note are Exhibits E, F and G which are some of the letters of the appellants to the respondent made on 23rd May, 2008, 27th May, 2008, and 22nd April, 2008 respectively, while Exhibits C and D made in 2002 were said to be brought to their knowledge on 4th July, 2008.
This begs the question, if it was possible that the appellants became aware of their benefits about three months after they had written for something they were not aware of?
Taking the above analogy runs counter to when this Court reiterated that time could be said to have begun to run in the case of Jallco Ltd v Owoniboys Technical Services Ltd (1995) 4 NWLR (pt 391 534) to: a. There is in existence a person who can save, or b. Another who can be saved, and c. All facts have happened which are material to be proved to entitle the plaintiff to succeed.
If the appellants were not aware of the existence of Exhibits C and D until they were certified and brought to their knowledge in 2008, they were certainly aware of Law No. 005 of 2002 by “the Ebonyi State Government that tried to block the payment by passing laws in their House Assembly exonerating their State from paying the severance package” (culled from Appellant’s brief)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The effect of the above is that as at 2002, the appellants were aware of their benefits but continued to write letters to the respondent who kept mute and followed same with Law No. 005 without further response to the entreaties of the appellants by numerous letters.
It is difficult in those events that unfolded not to agree with the respondent that the cause of action in this suit had accrued not later than 2002, by which time the appellants were out of time to invoke the judicial powers of the Court. Sad as it is, there is no running away from the reality check that Section 18 of the Limitation Law, Cap 102, Laws of Ebonyi State, 2009 which provisions are clear and unambiguous, that time to bring the action was expended.
It provides thus: 5.13: “No action founded on contract, tort or any other action got specifically provided for in parts II and III of this law shall be brought after the expiration of five years from the date on which the cause action accrued” In this instance the appellants having slept on their rights are deemed to have waived them and this Court is bound to give effect to the law, harsh as it may seem to the appellants. See Kalango v Governor of Bayelsa State (2009) 37 NSCQR 42.
Whether the documentary Exhibits C, D and H have the legal clout to override Law 005 of 2002 being a law validly enacted by the House of Assembly of Ebonyi State and if not, whether Exhibits C and D made in 2001, and Exhibit it made in 2010, the issue which the respondent did not put up a reply. It would be seen as constituting and intervening negotiation/documents capable of shifting the period of accrual of a cause of action?
The learned senior counsel for the appellants has argued that Exhibits C & D were ‘a Federal Government Instruction Paramount’ (Exhibits C & D) and referred to Exhibit H severally as having ‘liberating effect’ and ‘overriding superior effect’ on Law 005 of 2002 validly enacted by the Ebonyi House of Assembly. With respect, these are all deceptive appellation or at best an innocent misconception that has no place in law and justice. It is trite that our democracy is run on separation of powers among the Legislative, Executive and Judicial arms of Government.
It is the duty of the Legislature to make laws; the Executive to implement the laws, while the Judiciary interprets. The beauty of this is the relative independence of the arms of Government, albeit, with checks and balances.
Nigeria operates Federal System of Government with smaller geographical definitions or component units called states. Our Constitution is couched in a manner that the Federal Legislature otherwise called ‘the National Assembly’ has legislative competence on all matters in the Executive Legislative list while the Legislature at the State levels can also make laws concurrently with the National Assembly on matters in the concurrent legislative List of the Constitution.
In general the Constitution provides in Section 4 (5) that, “If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall to the extent of its inconsistency be void”.
The appellants knew well enough of the position of their entitlements and what the respondent was doing way back in 2001 or latest 2002. In paragraph 20 of their counter affidavit (page 164 of the Records), the appellants stated: “That Ebonyi State House of Assembly by its law in 2002, attempted blocking the payment of the plaintiffs but by a Federal Government instruction paramount, and the table of payment annexed to Exhibit D, the Federal Government ordered Ebonyi State Government to pay elected councillors in spite of their legislation as the legislation could only cover political appointees of Ebonyi State and not elected councillors”.
Assuming the Federal Government’s policy documents in Exhibits C, D & H possess the legal ability to overpower Law No. 005 of 2002, it is posited that what appellants should have done would be to ask for judicial pronouncement on this and not to assume the existence of the documents’ so- called ‘instruction paramount’ and ‘liberating effect’ without more. This might be inadvertence to their peril.
Clearly Exhibits C and D made in 2001 could not and was never designed to revive any cause of action. As at the time Exhibits C and D were made, the appellants were not statutorily barred from invoking the powers of the Court to claim some of their rights which had accrued in piecemeal from their first month of service and the first year of service completely. Exhibit H made in 2010 did not possess any reviving effect nor did it constitute a negotiation between the appellants and the respondent.
The fact that Exhibits C and D were certified in 2008 did not alter the date of making them, i.e. 2001, for the purpose of computation of time.
If the appellants were not aware of what the exact law or its purport was,they had the rule of practice in all State High Courts, Ebonyi State inclusive to seek interpretation of any such law, deed or instrument by Originating Summons.
The appellants, instead of doing this, banked their confidence in a Federal Executive Policy to override a law enacted validly by the Ebonyi State House of Assembly. See Order 1 Rule 2 of the Imo State High Court Civil Procedure Rules, 1988 then applicable to Ebonyi State, or Order 3 Rule 2 of the Ebonyi State High Court Rules, 2008.
In Elelu-Habeeb V. AGF (2012) 49, 3 NSCQR 1528, this Court held that Originating Summons could be used in the commencement of an action in matters involving interpretation of contracts, documents, constitution and other statutes where matters are not in disputes. See also Amasike V. R-G., CAC (2010) 43 NSCQR 581. The appellants failed or neglected to take advantage of this by challenging the validity of Law 005 of 2002 if they felt it was inconsistent with a Federal Law. Unfortunately, however, Exhibits C and D are not laws made by the National Assembly. They were mere executive policies.
There was no negotiation as between the appellants and the respondent either immediately after the expiration of their tenure or before the commencement of their action in 2011. At best, what existed were series of letters of demand from the appellants to the respondent which the latter did not reply. (Exhibits E, G and G refer). The noun ‘negotiation’ is from the verb ‘negotiate’ which according to the Webster’s Universal Dictionary and Thesaurus published in 2005 by Geddes & Grosset, ‘negotiate’ means “to discuss, bargain, in order to reach an agreement or settlement”.
Also, the Black’s Law Dictionary, 8th edition defines ‘negotiation’ as, “A consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter”.
In this instance, there is no record of any bargain or attempt by the appellants and the respondent to have their dispute or potential dispute resolved. Letters written by one party to them without more cannot be said to be negotiation, the operation of which would be capable of shifting the period of the accrual of the cause of action. Even if there was a negotiation, the time-hallowed principle of law is that time continues to run for the purpose of limitation even when the parties are engaged in negotiation. See NNPC V. lorshase (2008) All FWLR (Pt 403) 1299; Eboigbe V.
NNPC (1994) 5 NWLR (Pt 347) 649.
I have no difficulty to hold that, the presence of Exhibits C, D made in 2001 but certified in 2008 and H made in 2010 did not whittle down the effect of Law No. 005 of 2002 which is to exempt the appellants from Severance Allowances and other benefits as contained in the said law.
With regard to the question whether the appellants can effectively rely on the case of Salako v L.E.D.B. a case decided under the Public Officers Protection Ordinance and authority for exempting their claims from the operation of the Ebonyi State Limitation Law, 2009. And if the answer is in the affirmative, whether it is not too late in the day, for them to argue the point? Learned counsel for the appellants had argued that the case of the appellants were exempted, from the operation of the Limitation Law of Ebonyi State, 2009. He relied on the cases Salako V.
L.E.D.B. and Nigerian Ports Authority Vs Construzioni Generali Farsupra Cogefar SPA. With respect, this argument is misconceived. Part IV of the Limitation Law, Cap. 102, Laws of Ebonyi State of Nigeria, 2009 is headed “Limitation Period in Respect of Contract, Tort and other Actions”.
In particular, Section 18 thereof provides: “No action founded on contract, tort or any other action not specifically provided for in Parts II and III of this law shall be brought after the expiration of five years from the date on which the cause of action accrued.” (Underlining mine for emphasis) Notably, Parts II and III provide for limitation periods in respect of land, and judgments, trust property and the estate of deceased persons respectively. This action, no doubt, is one of the classes of action covered by any other action not specifically provided for in Parts II and III of this Law.
This action was commenced in 2011, two years after the coming into effect of the Limitation Law of Ebonyi State. Neither the Public Officers Protection Ordinance, nor it successor, the Public Officers Protection Act is a valid law of reference in this action. The Limitation Law of Ebonyi State applies. In Nze Bernard Chigbu V. Tonimas Nig. Ltd (2006) SCNJ 262, this Court held that limitation law being a procedural enactment guides the conduct of the Court and is an exception to the presumption against retrospectivity. See Section 44.
This Section provides thus: “Any enactments relating to the limitation of action which were in force in the state immediately before the commencement of this Law shall cease to exist”. These enactments that ceased to exist include the Public Officers Protection Ordinance or even its Act and law equivalents. Section 43 of the Law is explicit as to which proceedings are exempted from the application of the Ebonyi State Limitation Law and the present action is not one of those exemptions.
Assuming that the Limitation Law of Ebonyi State did not apply to the case of the appellants, a fundamental question would arise at this point, which is if the issue can be raised at this stage. The answer is in the negative. It is stated that this issue being an issue not raised in the Court below or the trial Court cannot be raised now without leave of this Court.
Even if the appellants had applied for leave to raise this fresh issue for the first time in this Court, it is my humble view that a plethora of decided cases have laid down the requirements that garb them with requisite authority to raise the issue. These requirements include that the fresh issue or evidence must be such as could not have been with reasonable diligence obtained for use at the trial, or such as if admitted would have an important effect on the whole matter, and such as is credible and capable of being believed and need not be controvertible. See CPC V.
Ombugadu (2013) 55 NSCQR 570, Contract Resources V. STB (2013) 53, 2 NSCQR 600. Having not obtained leave of this Court to argue this point, this Court ought to expunge the appellants’ argument asking for the exemption of his case from the application of the Limitation Law, Cap. 102, Laws of Ebonyi State of Nigeria, 2009. From the foregoing and my attempt at making my views communicated, there is no fighting chance in this appeal which lacks merit and I dismiss it. I abide by the consequential orders made. Appeal Dismissed
JOHN INYANG OKORO, J.S.C.: My brother, Ibrahim M. M. Saulawa, JSC, afforded me the opportunity of reading before now the lead judgment just delivered and I am in complete agreement with the reasons, conclusion and order made therein. My comments hereunder are in demonstration of my alignment with the lead judgment and for purpose of emphasis.
The facts of this case disclose that the Appellants herein completed their tenure of office in 2002 as Local Government Counsellors of Ebonyi State. It is also not in doubt that the suit which has led to this appeal was commenced on 6th December, 2010 about eight (8) years interval after they left office. Also not in dispute is the fact that as at 2002 when the Appellants served out their respective terms of office, they were aware of their earned entitlements which were not paid by the Respondent.
The position of the law is settled that for the purpose of limitation of an action, time begins to run from the time when there is in existence a person who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed. Put differently, time begins to run when the cause of action has accrued. See Hassan v Aliyu (2010) 17 NWLR (pt. 1223) 547, Independent National Electoral Commission (INEC) v Chief Godwin Enasito & 4 Ors (2018) 2 NWLR (pt. 1602) 63 at 94.
It follows therefore that any action commenced outside the period prescribed by the statute is barred as the right of action of the plaintiff would have been extinguished by such law.
This Court considered a similar issue in a recent case of INEC v Ogbadibo Local Government (2016) 3 NWLR (pt. 1498) 167 at 208 where in my concurring opinion, I stated as follows:- “What this means in effect is that the Limitation Act or Law removes the right of action of a plaintiff, his right of enforcement and right of judicial relief leaving him with a bare and empty cause of action which he cannot enforce by judicial process. It is statute barred.” I adopt and rely on my position in Ogbadibo’s case reproduced above in this appeal.
In the instant appeal, both parties are ad idem that the Limitation Law, Cap 102, and Ebonyi State (Applicable laws) Cap 40, Laws of Ebonyi State 2009 allow for institution of action against the Respondent within five (5) years after the accrual of the cause of action. The Appellant’s only contention is that in view of their exchange of correspondences and negotiations until the certification of exhibits C and D on 4th July, 2008, they would not have lost their right of action in this matter. The issue is whether such intervening negotiations had revived the Appellants right of action.
In my considered view, parties are encouraged to engage in negotiations for the purpose of reaching an amicable settlement of their dispute. However, such negotiation does not stop the period of limitation prescribed by the statute from running. A limitation period with respect to a cause of action is not broken once it begins to run. A party whose right of action has accrued has a responsibility to institute an action against the other party so as to protect his interest in the event that negotiations fail. See Lahan v The Attorney General Western Nigeria (1961) WNLR 39.
The sum total of all I have endeavoured to say above is that the suit of the Appellants was statute barred having not been instituted within five years of the accrual of the cause of action. I agree with my learned brother that this appeal has no merit and is hereby dismissed. I also make no order as to costs. Appeal Dismissed.
EJEMBI EKO, J.S.C.: The Appellants were Councillors. They were, between 1999 – 2002, duly elected into various Local Government Councils in Ebonyi State. They claimed to be entitled to be paid Severance Allowances allegedly approved by the Revenue Mobilisation and Fiscal Commission as per Exhibits C & D made in 2001. The said public documents were duly certified in 2008.
In 2002 the Law No. 5 of 2002 was passed by the Ebonyi State House of Assembly. The said Law No. 5 effectively barred and blocked the payment to, and the enjoyment by, the Plaintiffs/Appellants of Severance Allowances. The Appellants took no steps either to challenge the Law No. 5 or to enforce their right to the Severance Allowance.
In 2010, another policy statement was issued in Exhibit H reiterating Councils’ entitlement to payment of Severance Allowances. In the same 2010 the Appellants went to Court seeking to be paid their Severance Allowances withheld since 2002 when their tenure elapsed. The defence pleaded limitation vide a Notice of Preliminary Objection. The trial Court, sustaining the preliminary objection, struck out the suit for being statute barred.
On appeal the lower Court dismissed the appeal.
It affirmed the finding of fact that the Appellants’ cause of action was caught up by effluxion of time and therefore statute barred by the operation of Section 18 of Limitation Law of Ebonyi State that limited the time within which to enforce a right, the subject of the Appellants’ claim, to a period of 5 years from the date of the accrual of the right of action. In their Brief of Argument, the Appellants concede that a wrongful violation of a right gives rise to a cause of action or the right in law to maintain the action to enforce the right; and that the infringement of a legal right is the cause of action, giving the holder of the right, the right to activate judicial process to enforce the right.
They further admit that the right to enforce the payment of their Severance Allowances accrued to them, severally, since 2001/2002 and that they could not demand enforcement of that right because Ebonyi State House of Assembly had enacted the Law No. 5, 2002 outlawing their right and made it impossible for them to enforce the right. They simply watched their right exfoliate and denude them.
Equity follows the law. Delay defeats equity as equity assists only the vigilante. Equity would not assist a litigant resuscitate and resurrect a wasted right of action.
At the risk of repetition; the Appellants did not challenge the Law No. 5 of 2002. They also, not oblivious of Section 18 of the Limitation Law, did not act, within the 5 years prescribed for enforcement of their right, for judicial redress to ensure that they were paid their respective Severance Allowances. This action taken in 2010, brought eight years after the accrual of their cause of action and the right to enforce their right to be paid their respective Severance Allowances; is statute barred. I will therefore not disturb the decision appealed.
The appeal, in my view, smacks of some frivolity.
Consequently, and being also on the same page with my learned brother, I. M. M. SAULAWA, JSC, I find no substance in the appeal. The appeal is hereby dismissed. All consequential orders made in the lead judgment of my learned brother are hereby endorsed and adopted by me.
ADAMU JAURO, J.S.C.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC. I am in agreement with the reasoning and the conclusion contained therein.
My learned brother has covered the ground as he has dealt with all issues germane to the determination of the instant appeal.
By way of adumbration however, I wish to state that the Appellants were well aware that they were entitled to severance benefits as far back as 2002. They averred at paragraph 7 of their statement of claim thus: “Plaintiffs aver that since the end of their tenure in 2002, they have continued to demand for their entitlements/benefits in vain, including writing to the Governor of Ebonyi State, the Secretary of Ebonyi State Government, the Speaker of Ebonyi State House of Assembly and even His Lordship, Bishop of Abakaliki Diocese.
Regrettably, all these have helped in yielding only negative result.”
They further averred at paragraphs 8 and 9 that it was after their demands failed to yield any result that they wrote to the Revenue Mobilisation Allocation and Fiscal Commission (RMAFC), which prompted the RMAFC to write Exhibit H to the Governor of Ebonyi State. The question is if the Appellants did not know about their entitlements, what prompted them writing to authorities within Ebonyi State and later RMAFC?
The Appellants slept on their rights for far too long and woke up too late from their deep slumber. Having failed to institute their action within the limitation period of five years permitted by Section 18 of the Limitation Law of Ebonyi State, the Appellants lost their right to approach the Court to ventilate their grievances. See ASABORO & ANOR V. PAN OCEAN OIL CORPORATION (NIG) LTD & ANOR (2017) LPELR-41558 (SC); NASIR V. CIVIL SERVICE COMMISSION KANO STATE & ORS (2010) LPELR-1943 (SC); HASSAN V. ALIYU & ORS (2020) LPELR-1357 (SC).
In conclusion, the appeal fails and same is hereby dismissed. The judgment of the Court of Appeal, Enugu Judicial Division delivered on 18th June, 2015 in appeal No. CA/E/203/2013 is hereby affirmed. I abide by all the consequential orders made in the lead judgment.