IN THE COURT OF APPEAL
HOLDEN AT ILORIN
ON THURSDAY THE 3RD DAY OF NOVEMBER, 2011
BEFORE THEIR LORDSHIPS
TIJJANI ABDULLAHI JUSTICE, COURT OF APPEAL
JOSEPH SHAGBAOR IKYEGH JUSTICE, COURT OF APPEAL
ITA .G. MBABA JUSTICE, COURT OF APPEAL
APPEAL NO: CA/IL/M.12/2007
ISIAK O. MOYOSORE
THE GOVERNOR OF KWARA STATE & ORS
JUDGEMENT (DELIVERED BY ITA .G. MBABA JCA)
This is an appeal against the decision of Hon. Justice M.O. Adewara of Kwara State High Court in suit No. KWA/68/2006, arising from an interlocutory application (a preliminary objection) raised by the Defendants on the competence of the suit.
(a) The Rulling of the lower Court was delivered on 31/7/06. The main suit before the lower Court, as per the writ of summons dated 15/5/2006…
After hearing the two motions, in a considered ruling, the learned trial judge up held the objection and said:
“I hold the whole that the case is statue barred and ca therefore not be entertained against 1st, 2nd and 3rd Defendants… I dismiss the case against them, while it is struck our against the 4th and 6th Defendants.”
On their second issue – whether the Appellants suit was not statute barred having been instituted three months next after the act of revocation of his certificate of occupancy by the 1st Respondent – Counsel urged us to resolve this in favour of the 1st to 3rd Respondents; that having filed the action three months next after the revocation of his right of occupancy by the 1st Respondents the suit was statute barred, having been caught by the provisions of the Public Officers Protection Law of Kwara State, Cap 135.
Counsel submitted that it was not in dispute that the title document of the Appellant over the land in dispute was revoked by the 1st Respondent on 17/6/05, as published in MOJ1 and MOJ2A; that it was not also in dispute that 1st Respondent (Executive Governor of Kwara State) was a public officer by virtue of paragraph 19 of the 5th schedule, part one to the 1999 Constitution of the Federal Republic of Nigeria. He relied on the case of Ibrahim vs Judicial Service Committee (1998) 12 SCNJ 255 at 276 – 278.
Counsel further said that it was not in dispute that the 1st Respondent revoked the title document of the Appellant in the exercise of powers conferred on him under the Land Use Act; that for Appellant to be able to maintain an action against the 1st to 3rd Respondents, he must file same within 3 (three) months next after the act complained of. He relied on section 2(a) of the Public Offices Protection Law, CAP 135 Laws of Kwara State 1994, which says:…
Counsel submitted that Appellant filed his suit on 12/5/06, whereas the 1st Respondent revoked his right of occupancy on 17/6/05; that was more than 3 months after the revocation of the right of occupancy, which he said was published by Exhibits MOJ1 and MOJ2A.
He urged us to hold for the 1st and 3rd Respondents.
Counsel for the 4th and 6th Respondents. Wahab Egbewole (Ph.D.) who settled the brief, also submitted that the issue of jurisdiction was fundamental and could be raised at any time and had to be resolved by the trial judge without waiting for the filing of pleadings by the Respondents. He relied or the case of AG. Kwara State vs. Olawole…Counsel added that jurisdiction is the bed rock of all trials, and is such a threshold issue that when a court lacks it, it cannot exercise any judicial powers in respect of the matter; that no proceeding takes precedence over it, and when raise must be determined one way or the other before further proceeding in the mater. Thus, it takes precedent over the Rule of demurrer. He relied on the case of Davies vs. Mendes (supra) at 901 – 902.
“In distinguishing a demurrer proceeding from the issue of jurisdiction, issue of jurisdiction is more fundamental than demurrer proceeding. It does not always follow that pleading must be a prerequisite to raising the issue of jurisdiction. Jurisdiction is a compelling necessity and prerequisite to the consideration of the demurrer proceedings.”
He added that it was not contestable that issue of limitation of action is a jurisdictional matter; that the lower court was right in determining it first.
Counsel further submitted that from the facts of the case presented in the statement of claim, the Appellant did not dispute that the 1st Respondent revoked his right over the land in question and that the said land was re-allocated to 4th and 6th Respondents an that by a letter of 17th June, 2005 posted to the Appellant he was informed of the revocation of his land. He submitted that the issue of the revocation was fundamental investing the Court with jurisdiction and this could even be taken judicial notice of as an executive act of the 1st Respondent under the provisions of section 74 (1) (a) of the Evidence Act; that it was not necessary to set out in the pleadings contents of a statute, subsidiary legislation or gazette. He relied on Nwosu vs Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt.688) 621; that any fact stated in official gazette connotes a notice to the whole world (Gbafe vs. Gbafe (1996) 6 NWLR (pt. 455) 417 at 434); that the implication of this is that Appellant is deemed to have notice. He, however, conceded that publication in a gazette is not a substitute to bringing the information to the concerned individual.
On the application of the Public Officers Protection law, Counsel for the 4th and 6th Respondents’ submitted that the 1st Respondent revoked the statutory right of occupancy of the Appellant for breach of terms and conditions of the grant as indicated in the letter to the Appellant dated 17/6/2005; that having failed to file the suit within 3 months of the revocation, the matter was caught by the public officer protection law and consequently the action was statute barred. He relied on some authorities, in duding ACB vs. Nwanna Trading Store Ltd (2007) 1 NWLR (pt. 0160) 11 NWLR (pt. 724) 290.
Counsel further submitted that in determining whether an action is statute barred the questions the Court ought to ask when time began to run and that this was answered in the case of FADARE v. A.G. OTO STATE (1982) 4 SC1; N1IA V. AYANFALU (2007) 2 NWLR (pt. 1018) 246 at 269; HUMBE vs A.G. BENUE STATE (2000) 3 NWLR (pt. 649) 419 at 433; BOARD OF TRADE vs CAYZER IRUINE CO. LTD (1927) AC 610.
Counsel concluded that the cause of action accrued on 27/7/2005 (sic) and that by provision of section 2 (1) of the Public Officers Projection Law, the appellant ought to have taken the action within 3 months of the 27th July 2005! He said that the Appellants failure to do so has extinguished his right. He relied on the case of Ogun Sate Government vs. Dalami Nig Ltd. (2007) 9 NWLR (pt. 1038) 66 at 82.
The Counsel for the 5th Respondent, Tunde Olamu Esq, too, submitted in line with the Counsel for the 1st to 3rd and 4th and 6th Respondents, that it was necessary for the learned trial Judge to take and uphold the objection, since it touched on jurisdiction and that the suit was statute barred having not been commenced within 3 months from when the 1st Respondent revoked Appellant’s right of occupancy on 17/6/2005; that by section 2 (a) of the Public Officers Protection Law, the Appellant could not maintain the action, having taken it more than 3 months after the cause of action had accrued. Counsel also relied on some of the cases cited by other Respondents Counsel, and AMAO (20070 ALL FWIR (pt. 351) 1490 at 1494 ELBANJO VS. DAWUDU (2006) ALL FWLR (pt. 328) 604 at 638 – 639; ADEKOYA VS FED. HOUSING AUTHORITY (208) ALL FWLR (pt. 434) 1466.
It has become part of our legal jurisprudence that a Defendant has right to raise any issue bordering on the jurisdiction of a Court to try a cause or matter at anytime, even on appeal, without let or hindrance. It is also our Law that the Court has a duty to hear and dispose of any such challenge of its jurisdiction first before going into the merit(s) of the substantive matter. The logic for this lies in the fact that where a court lacks jurisdiction to hear and entertain a suit, whatever it does in the case will amount to sheer waste of time and a nullity, no matter how well the case must have been conducted. See the case of M.V. Gongola Hope vs. Simufit Cases Ltd (2007) All FWLR (pt. 388) 10005 held 9l F.C.M.B. Ltd vs. S.A.I.C. LTD (2007) ALL FWLR (pt. 363, HELD 7, Elorkele vs Nwafor (2008) All FWLR (pt. 431) 1010, held 1.
Thus, objection to jurisdiction can be taken, whether or not pleadings have been exchanged in the case. The rule barring the use of demurrer can not therefore be stretched to deny a party who has genuine and legitimate objection, touching on the jurisdiction of Court, the right of ventilating his grievance, even without exchange of pleadings, where the raising of such objection, if sustained, is capable of disposing of the whole action. See the case of NDIC VS. CBN (supra), where the Apex Court held:…”
“I have to emphasis also that a defence founded on statute of limitation like the Public Officers Protection Act, is a defence that the plaintiff has no right of action. It is a defence which can be traced in limine and without any evidence in support, it is sufficient if prima facie the date of taking the action outside the prescribed period is disclosed in the writ of summons and statement of claim. The defence must be pleaded while the trial court has a duty to confine itself to the pleading filed by the parties. In order to determine the period, consideration must be given to the writ of summons and the statement of claim alleging when he wrong was committed and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from the parties.” (My emphasis). See also Savage vs Rotibi 10 WACA 2642.
The Rules of the court below having abolished demurrer, it was wrong for the court below to have taken the issue of limitation of the action under the Public Officers Protection Law without the respondent who were defendants in the court below pleading the defence in their statements of defence as a stepping stone for the ventilation of the preliminary objection.
The procedure adopted by the court below to get rid of the suit in limine when the plea was yet to be raised in the statement of defence was premature and unsupportable, in my view. See Fadare vs Attorney-General of Oyo State (1982) N.S.C.C. 52 @ 57 – v – 59 where the sSupreme Court held inter-alia that:
2 “It seems to me to be beyond any question that the main point to be decided in this appeal is the proper meaning and scope of Order 22 Rules 2 and 3 of the High Court Civil Procedure Rules of Western Nigeria and whether they were properly construed by both the High Court and the Court of Appeal. The Rules provide as follows: -…
I should add immediately that the Federal Court of Appeal mentioned demurrer (one of the complaints of Mr. Fasusi) by way of distinction particularly as the learned counsel appeared to be relying on cases which dealt with ‘Demurrer’, a totally different.
The Western Nigeria rules as stated earlier have excluded Demurrer. It seems to me that having regard to this, a close look at the wording of Order 22 Rule 2 shows that it envisages a situation in which pleadings have been filed by both parties and issues joined. The issues can be disposed of by the trial judge at or after the trial (clearly after hearing evidence). Then the all important proviso is to the effect that before the trial i.e. before evidence is taken, the trial judge may, on the application of one of the parties, set down for hearing as preliminary points, any points of law raised in the said pleadings. This is clearly designed to ensure that suits that can be expeditiously dealt with and disposed of on grounds of law are not carried through a long and perhaps expensive trial.”
For these reasons, and reasons so well given in the judgement of my learned brother I.G. Mbaba J.C.A., I will allow the appeal and abide by the consequential orders stated in the said judgement.
JOSEPH SHAGBAOR IKYEGH
JUSTICE, COURT OF APPEAL
3 – 11 – 2011