AGORO v. HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY & ORS

A suit No. FHC/ABJ/CS/23/99 was instituted at the Federal High Court Abuja, by the plaintiff Alhaji H. Jaiyeola Agoro against the Minister of the Federal Capital Territory, Ministry of Federal Capital Territory and Captain Hembah (the respondents in this appeal), on the 10th of February 1999. Whilst the suit was pending at the Federal High Court, the plaintiff Jaiyeola Agoro died and an application was filed to substitute the present appellant, for the deceased Jaiyeola Agoro. The application was granted by the Federal High Court. Later on, it transpired that the Federal High Court has no jurisdiction to try the Suit. The Federal High Court then exercised its powers under Section 22(2) of the Federal High Court Act Cap F12, Laws of the Federation of Nigeria 2004, and transferred the suit to the High Court of the Federal Capital Territory (the trial Court) on the 15th of November, 2005. After the transfer to the trial Court, the appellant filed an application ex parte, to regularize the processes already filed at the Federal High Court, and deem same as properly filed in the trial Court. The application was granted on 7th May 2008. In June 2008, the respondents filed a preliminary objection to the suit on the grounds that it was filed on 5th May 2008, outside the period prescribed by the Public Officers Protection Act and the statute of Limitation. The trial Court ruled that the public officers protection Act did not apply but that the Suit having been filed in May 2008, was outside the statutory period of twelve years, as enshrined by the Limitation Act, Cap 522 LFN 1990 and so dismissed the suit.
Hence this appeal.
The appellant’s brief was settled by Mr. C. Aroh and was filed on the 14th of August 2009, but deemed properly filed on 13th March 2012.
An Appellant’s Reply brief to the respondent’s brief was filed on 4th June 2010 but deemed properly filed on the 3rd of March 2012.
In the Appellant’s brief, the two issues identified for resolution are: –
1. Whether given the facts and circumstances of this Suit the respondents were entitled to an Order by the trial Court dismissing the suit for being statute-barred.
2. Whether the trial judge is bound by a subsisting order lawfully made by him on 7th May, 2008 to regularize the processes already filed at the Federal High Court, Abuja on 10th February 1999.
The 1st and 2nd respondent’s brief filed by D. Awesu on the 21st May, 2010 but deemed filed on 13th March 2012, identified and relied on the same issues submitted by the appellant. I shall utilize the same issues in resolving this appeal. The 3rd respondent did not file any brief. I begin with Issue No. 2.
ISSUE No.2
Whether the trial Judge is bound by a subsisting order lawfully made by him on 7th May, 2008 to regularize the Processes already filed at the Federal High Court, Abuja on 10th February 1999.
Learned counsel for the appellant submitted here, that on transfer of the Suit from the Federal High Court to the trial Court, the appellant sought for and was granted an order to regularize the processes filed at the Federal High Court to be also deemed as filed in the trial Court. He argued that this was a lawful Order made by the trial Court, which has not been discharged or set aside on appeal, and is therefore valid and subsisting OYENIYA Vs. FAMILUS (2000) 1 NWLR (Pt. 641) 442; ALHAJI ENT. LTD Vs.

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OMOLABOYE (2006) 3 NWLR (Pt. 996) 203 and BABATUNDE Vs. OLATUNJI (2000) 2 NWLR (Pt.646) 559.
In opposing this view, learned counsel for the 1st & 2nd respondents argued that this is a fresh issue as it did not come up at the trial, and that the Suit before the Federal High Court is different from the Suit filed at the trial Court. He referred to the fact that the plaintiffs in the two Suits are different, the Suit Numbers are different and that the reliefs sought in the two Suits are not the same, arising in an abuse of Court process ARUBO Vs. AIYELERU (1993) 3 NWLR (Pt. 280) 131.
Counsel also argued that the trial Court, when it was considering the issue of statute of limitation, was bound to look only at the processes filed before it at the interlocutory stage, which were the writ of summons and statement of claim filed before it on 5th May 2008, and the respondent’s preliminary objection dated 2008.
When a Court is to determine whether a claim is statute or time-barred, it must examine the applicable legislation in respect of the Suit before it. In other words, is it a recovery of land, a recovery of debt or a matter of contract or tort. After such a determination, since different periods apply to the different actions, the Court would then determine when the cause of action accrued, by examining the Writ of Summons and the Statement of Claim. If the Court is satisfied that there is a cause of action and when it arose, it will then compare the date when the cause of action arose, with the date the writ of summons was filed. If the period when the cause of action accrued and the time the suit was filed, is beyond the stipulated period in the Limitation Law, then the action is statute or time-barred and must be struck out.
See JFS INVESTMENT LTD Vs BRAWAL LINE LTD & ORS (2010) 18 NWLR (Pt. 1225) 495; SANDA Vs. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (Pt.174) 379 and EGBE Vs. ADEFARASIN (NO. 2) (1987) I NWLR (Pt. 47) 1.
The reason being that the Suit would not have been initiated by due process of the law. That would then rob the Court of jurisdiction to adjudicate on it. See MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341.
In the instant case, in responding to the argument on the Preliminary Objection, counsel for the appellant (plaintiff) drew the attention of the Court to the fact that the Suit was a transferred case from the Federal High Court, and not that it was filed in May 2008. The trial judge himself captured this at page 199 of the record, in his Ruling.
Having been so addressed, the trial judge ought to have consulted the Writ and Statement of Claim filed at the Federal High Court Abuja which he was very much aware of. After all, on the 22nd of April 2009, when the Suit came up, the same trial judge stated that the suit was a transferred one from the Federal High Court, in these words at page 190 of the record –
“Court: – Very well, from the case file, it is clear that this case has moved from one judge of the Federal High Court to another before coming to this Court on transfer by our Hon, C.J.”
(Emphasis mine),
The trial judge therefore, ought to have looked at the writ of summons and the statement of claim filed at the Federal High Court. He would have seen that the suit was definitely, initially instituted and filed on 10th February 1999. He closed his eyes to the said writ and statement of claim and only consulted the writ and statement of claim he had himself regularised. There is no way a proper determination of when the suit was filed could be made, without referring to the antecedents of the transfer of the case from the Federal High Court to the trial

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Court.
It was the same trial judge who was satisfied with the prayers of the appellant contained in the Ex parte Motion, to regularise the processes filed after the transfer of the case, and to deem same as filed before the trial Court, pursuant to the jurisdiction of the trial Court. He granted the said prayers without any hesitation. By that order, it is clear that the suit was a transferred case from the Federal High Court instituted in February 1999, and NOT a freshly-instituted action on 5th May 2008, as the trial judge held at page 205 of the record in his Ruling. It is curious, to say the least, how he could forget his earlier Ruling and take a stand distorting the crucial issue of transfer of the case and the date it was earlier instituted.
The dismissal of a Suit on the ground of a limitation law is a serious issue as it robs a plaintiff of his right of action, leaving him with a bare and unenforceable cause of action. The crucial dates to consider in such a situation, are the date the cause of action accrued and the date the Suit was filed. In this case, the trial judge determined the two dates by referring only to the Writ and Statement of Claim he had regularised. He avoided consulting the Writ and Statement of Claim filed at the Federal High Court and transferred validly to his Court, which were clearly before him and which he was duty bound to consider, in the peculiar circumstances of this case. He was entitled to consider, not only the Writ and Statement of Claim regularized, but the original Writ and Statement of Claim and the processes initiating and bringing the Suit properly before him. In ARCHIANGA Vs. A.G. AKWA-IBOM STATE (2015) 6 NWLR (PT. 1454) 1 at 55 – 56, this Court per Garba JCA held –
“To determine whether an action or cause of action is statute barred all that is required for the Court to do is to examine the Writ of Summons or other initiating process of the action and then comparing it with the date on which the Writ of Summons or other process initiating the action was filed…… See FADARE Vs. A.G. OYO STATE1982 4 SC1…….. EGBE Vs. ADEFARASIN (NO. 2) 1987 1 NWLR (Pt. 47) 1 at 20 SANDA Vs. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (Pt 174) 379; OWIE Vs. IGHIWI (2005) 5 NWLR (Pt. 917) 184….. See also ADEKOYA Vs. FHA (2008) 11 NWLR (Pt. 1099) 539.
The trial judge therefore, should have considered the Motion ex parte for regularization of the transferred Suit, the prayer for a deeming Order (page 134 of the record), the affidavit in support of the Motion (page 135 of the record) which deposed to the fact that the suit was initially filed at the Registry of the Federal High Court but was transferred later to the trial Court, and the order issued form the hand of the trial judge (page 190 of the record)
That Order is subsisting and valid as it has not been set aside by that Court or an appellate Court. It binds all parties and the Court itself. See S.P.D.C. LTD Vs. X.M LTD (2006) 16 NWLR (Pt. 1004) 189 and ALHAJI ENT. LTD VS. OMOLABOYE (SUPRA). The trial judge is bound to respect that Order.
Learned counsel for the 1st and 2nd respondents has submitted that the case at the Federal High Court and the one at the trial Court are different because the parties are different. This is turning a blind eye to the obvious. The counsel is very much aware that the original plaintiff had died and the present plaintiff (appellant) was substituted on the 9th of March 2005, before the Suit was transferred from the Federal High Court to the trial Court.
Again the Suit Numbers cannot be the same as when the Suit was filed at the Federal High Court, it was given a Federal High Court Number. when it was transferred to the trial Court, it could not conceivably continue to retain the Federal High Court Number when the processes were regularized.

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The argument of counsel for the respondents that the reliefs are not the same, is vague. Counsel has the duty to pin point out to this Court, the differences. It is not for this Court to descend to begin to fish out any differences. At any rate, for the avoidance of doubt, there are no two suits. There is only one Suit instituted in 1999 at the Federal High Court Abuja, which was transferred to the trial Court.
Again, the issue of the transfer of the Suit and Order of regularization are not new issues as they are closely tied and intertwined with the date the Suit was filed, a date that is crucial and had been the subject of submission by both counsel and was determined by the Court. No fresh issue was taken here. Issue No. 2 is thus resolved in favour of the appellant and against the respondents.

ISSUE NO 1
Whether given the facts and circumstances of this Suit the respondents were entitled to an Order by the trial Court dismissing the suit for being statute-barred.
Learned counsel for the appellant submitted that the grant of the land in dispute is seen from the Certificate of Occupancy No. FCT/ABU/CA/64. The appellant commenced development but fell ill before he could complete it. He had to be flown outside the country for medication, in 1996. On his return, he instructed his counsel to find out the outstanding ground rent in 1997. He was informed that the land had been revoked. He visited the property in 1998 and found his fence demolished and foundation dug up. He filed an action at the Federal High Court Abuja on the 10th of February 1999. It was later transferred to the trial Court by an Order made on the 15th of November 2005, by the Federal High Court. At the trial Court, the appellant applied for and was granted leave to regularize the processes filed at the Federal High Court and same were deemed filed at the trial Court on 7th May 2008.
When the respondents filed a Preliminary objection to the Suit on the ground that it was statute-barred, having been commenced at the trial Court on 5th May 2008, the trial judge agreed and dismissed the Suit, having been caught up by the Limitation Act, Cap 522 LFN 1990.
Counsel argued that by the processes filed, the Suit was commenced at the Federal High Court Abuja on 10th February 1999 and was only transferred to the trial Court by an order made on 15th November 2005. The suit could therefore not be held to have been commenced on 5th May 2008 as held by the trial Court, especially as the same Court found that it was a transferred case, not a freshly-instituted case. It was an existing Suit as at that 5th May 2008, he argued, and so was not caught by the Limitation Act.
He urged us to resolve the Issue in favour of the appellant.
Learned counsel for the 1st and 2nd respondents argued that the appellant did not plead the existence of the case filed at the Federal High Court and did not lead any evidence on it to prove so. He only mentioned it slightly in his response to the Preliminary Objection in paragraph 3.5 at page 183 of the record, he submitted. He referred to OJUKWU Vs. YAR’ADUA (2009) 12 NWLR (Pt. 1154) 50 at 74, where it was held that when a fact is not pleaded, no evidence can be led on it and the Court cannot consider it.
Learned counsel at paragraph 4.1.4 at page four of the 1st and 2nd respondents brief, submitted that –
..the Plaintiff claims that the Suit being appealed against was instituted in 2005, at the Federal High Court and that it was transferred by the Federal High Court that same year to the High Court of FCT. Even as at 2005, the plaintiff was already out of time in commencing this Suit as the cause of action arose in 1989, i.e. 16 years ago while the limitation period for land matters is 12

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years.
Learned counsel also argued that the 1st and 2nd respondents entered appearance on the 15th of May, 2008 upon being served with a Writ of Summons and Statement of Claim dated 5th May, 2008, and that the appellant made no mention of, neither did he address the trial Court that the matter was a transferred case. He urged us to resolve the Issue in favour of the respondents.
I have earlier, whilst resolving Issue No. 1, held that in determining whether an action is caught up by the Limitation Law, the Writ of Summons or other initiating processes of the action and the statement of claim showing when the cause of action arose, are to be considered and compared with the date of filing the Suit. A cause of action refers to the facts or combination of facts which a plaintiff must adduce to entitle him to the reliefs claimed. See ONNOGHEN JSC (AS HE THEN WAS) IN HASSAN Vs. ALIYU (2010) 17 NWLR (pt. 1223) 547.
In the instant Suit, the trial Court at page 205 of the record, in its Ruling, found that the cause of action arose on or before the 29th of October 1989. See also page 202 of the record. There is no appeal against this finding. It is therefore binding on the parties, the trial Court, and this Court.
Learned counsel for the 1st and 2nd respondents submitted that the plaintiff claimed that the Suit being appealed against, was instituted in 2005 at the Federal High Court. This is not at all correct. The counsel for the appellant at page 83 of the record, categorically submitted that “contrary to the supposition by the 1st and defendant that the Suit was filed on the 5th of May 2008, the Suit commenced at the Federal High Court, Abuja and has just been transferred owing to the decision in OKOYEDE Vs. FCDA (2005) 27 WRN 97 and therefore was not instituted on the 5th of May 2008 as claimed by the 1st and 2nd Defendants.“ (Emphasis mine). With this, the submission of counsel for the 1st and 2nd respondents at paragraph 4.1.4 of their brief, cannot be correct as it is not borne by the record. It was therefore very wrong for the counsel for the 1st and 2nd respondents, to take the year 2005 as the year the Suit was instituted and compare it with 1989, the date the cause of action arose, to get 16 years.
Counsel for the 1st and 2nd respondents had also argued that the appellant did not plead and prove the fact of the case being a transferred case. The plaintiff did not need to plead and prove this. We must remember that the respondents did not file a statement of defence for issues on this, to be joined. The issue of statute of limitation came about, when the 1st and 2nd respondents filed a Preliminary Objection. In their written address in support of the Preliminary objection, at paragraph four, page 177 of the record, they argued that the writ of summons was filed on 5th May 2008. In the appellants response in the written address in opposition, page 183 of the record, the issue of filing the suit on 5th May 2005 was debunked. It was therefore, not a matter in which pleadings and proof had arisen. The Court was very much aware that the Suit was a transferred case not a freshly-instituted case, and it ought to have considered the Suit as filed initially in the Federal High Court (by looking at the Writ of Summons and the statement of claim therein), in order to ascertain when that suit was filed. That is the correct and crucial date since it was the Suit that was transferred to it and now pending before it, especially as it had done the necessary things and made the correct Order to have the Suit deemed pending before it.
It was bound to consider those processes filed initially at the Federal High Court. In the case of WILLIAMS Vs. WILLIAMS (2008) LPELR-3493 (SC); 2008 10 NWLR (Pt. 1095) 364, the application was by way of a Preliminary Objection for the dismissal of the Suit in limine, on the

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ground of Limitation of action as in the present case. The respondent relied on the Writ of Summons and Statement of Claim of the appellant. It was held that there was no need for the appellant to file any affidavit nor prove the date of filing of the Suit. The Court can look at the documents filed by the appellant and compute the period of limitation, see WOHEREM Vs, EMEREUWA & ORS(2004) 13 NWLR (Pt. 890) 398; AREMO II Vs. ADEKANYE (2004) 13 NWLR (Pt. 891) 572. Per Musdapher JSC as he then was, now of blessed memory. So here, the Court ought to have looked at the writ of summons and the statement of claim filed at the Federal High Court, Abuja, as the relevant process, and not only the writ regularised before it. Furthermore, from its earlier order which it ought to have known or should have also consulted, it had accepted the transferred Suit.
A transfer connotes that there is a starting point before a journey to a particular point. The writ of summons and the Statement of claim filed initially at the Federal High Court, was the starting point before it was now transferred to the trial Court.
It is further to be noted, that the 1st and 2nd respondents had infact filed a Motion for extension of time to file their memorandum of appearance out of time, at the Federal High Court and before the transfer to the trial Court. See pages 28 29 of the record. The 3rd respondent had also filed his statement of defence at the Federal High Court (pages 71 – 77 of the record).
Therefore, the respondents cannot feign ignorance of that Suit. They have not said that the Suit was struck out or dismissed or is still pending before that Court. They are aware that it had been transferred. More importantly, the trial Court was so aware and ought to have acted in a manner showing this was so. It did not.
I have looked at the Writ of Summons filed at the Federal High Court, and the endorsed claim therein. The Writ was taken out on the 10th of February 1999. The finding of the trial Court which is subsisting, is that the cause of action arose on or before the 29th of October, 1989. We take the certain date of 29th October 1989. The Suit was therefore instituted within 10 years from the date the cause of action arose. By the provisions of Section 15(2) (a)and (b) of the Limitation Act Cap 522 Laws of the Federation of Nigeria 1990, the Suit ought to be instituted within twelve years. Since it was instituted within ten years, it could not have been statute-barred as held by the trial Court.
This Court is in a position to evaluate the documentary evidence before the trial Court, since belief of witnesses is not involved. We can interfere, if the trial Court did not properly evaluate the evidence. For the fact that the trial Court failed to take into consideration evidence which it ought to (the Writ of Summons and the statement of claim filed at the Federal High Court, Abuja) before the transfer to it and had shut its eyes to the obvious, its decision was perverse and has occasioned a miscarriage of justice. We ought to infere. See ADIMORA Vs. AJUFO(1988) 3 NWLR (Pt. 80) 1; ATOLAGBE Vs. SHORUN (1985) 1 NWLR (Pt. 2) 350 and UYO LOCAL GOVERNMENT Vs. INWANG (2010) 4 NWLR (Pt.1185) 529.
This issue is resolved against the respondents and in favour of the appellant.
The result is that this appeal has merit and it succeeds. It is allowed. The Ruling of the trial Court delivered on the 23rd October 2008, by Hon. Justice Othman A. Musa is hereby set aside. I transmit the case Suit No. FCT/HC/CV/485/2008 back to the Chief Judge of the High Court of the Federal Capital Territory for hearing before that Court, differently constituted.
N50,000 costs to the appellant against the 1st and 2nd respondents.
PETER OLABISI IGE, J.C.A.: I agree.
TANI YUSUF HASSAN, J.C.A.: I had the advantage of reading before now’ the judgment
just delivered by my noble lord, Abubakar Datti Yahaya, JCA. I am in entire agreement with the reasoning and conclusion that this appeal is meritorious, and it is also allowed by me. I abide by the consequential order made therein and the order as to costs.