OKO & ORS v. A.G., EBONYI STATE (2021) LCN/4983(SC)
In The Supreme Court
On Friday, June 04, 2021
SC.565/2015
Before Our Lordships:
Mary Ukaego Peter-Odili – Justice of the Supreme Court of Nigeria
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
HON. FRANCIS ALUU OKO 2. HON. JOSEPH O. CHUKWU
- HON. AMA O. UCHE (For Themselves and on behalf of All Councilors of
Ebonyi State who served for the period of 1999-2002 and
whose Certificates of Return are hereto Annexed) – Appelant(s)
And
HON. ATTORNEY-GENERAL OF EBONYI STATE – Respondent(s)
Appearances:
- E. AJOGWU SAN. – For Appellant(s)
HON. AUGUSTINE NWANKWAGWU ESQ.
Attorney–General for Ebonyi State – (For Respondent(s)
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.
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.
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.
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.
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.
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.
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.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.
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.
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.
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.
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.
