Hon. Minister Federal Ministry of Education & Ors V. Prince Ekpo Okang Ekpo & Ors (2016)

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CHIOMA EGONDU NWOSU-IHEME, J.C.A.

This is an appeal against the judgment of Michael Edem, J, of the Calabar Division of the High Court of Justice Cross River State in suit No. HC/365/2013 on the 2/6/2014.

The Federal Government of Nigeria in 1972 requested the Cross River State Government to secure land on her behalf in Calabar for the establishment of a Federal Government Girls’ College. The Cross River State Government, on behalf of the Federal Government secured 52.202 hectares of land belonging to Atogha’s family for the said purpose.

The Federal Government sent money to the Cross River State Government for compensation in respect of the 52.202 hectares of land and Atogha’s family was compensated .

In 1982, the same Federal Government of Nigeria requested the Cross River State Government to, on her behalf, secure additional land in Calabar for the same Federal Government Girls’ College, Calabar. Pursuant to this request for additional land, the Cross River State Government, on behalf of the Federal Government surveyed 11.884 hectares of land belonging to Adohose (Otu Effiom) family (1st Respondent).

?In 2006,

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the Cross River State Government finally informed the 1st Respondent that the land was no longer needed for the college because of its closeness to the proposed maximum prison in Calabar. The Appellants were advised to release the said 11.884 hectares of land to its owners.

Consequent upon the Appellants’ refusal to return or release the 1st Respondent’s 11.884 hectares of land, despite his demands and despite the recommendation of the joint team of surveyors, the 1st Respondent filed suit No. HC/365/2013 to enforce the violation of his fundamental right guaranteed under Section 44(1) of the 1999 Constitution of Nigeria (as amended).

?The case as presented by the Appellants in their counter-affidavit of 10/12/2013 at pages 43-47 of the Records is that the Federal Government of Nigeria sent money to the Cross River State Government to pay the 1st Respondent as compensation for his 11.884 hectares of land and the 1st Respondent was, by virtue of a letter dated 16/2/1981, paid on the 19th and 20th February, 1981 (see Exhibit E at page 52 of the Records). The Appellant posited that the 1st Respondent’s suit is statute-barred because the cause of action

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arose in 1982 and that by virtue of reliefs A, B, C and D, the 1st Respondent was claiming title to land as his main claim and so the suit could not be sustained under the Fundamental rights rules. That the decision of the trial Court was therefore perverse because the trial Judge raised the issue of the Appellants? failure to sign their counter-affidavit of 16/12/2013 suo motu and resolved same suo motu without involving the parties.

The Cross River State Government, on its Part, in its counter affidavit filed on 25/2/2014 states that the Federal Government of Nigeria has never given her any money to pay to the 1st Respondent for his 11.884 hectares of land.

The Appellant distilled four issues for determination thus:
“i. Whether the learned trial Judge is right to have awarded the alternative relief of compensation in this suit, when by the Fundamental Right Enforcement (Procedure) Rules, 2009, he lacks jurisdiction to entertain the main claim.
ii. Whether the decision of the lower Court is valid in view of the fact that the learned trial Judge held suo motu, that the counter affidavit of the Appellants, which contains evidence

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showing that the 1st Respondent had been compensated, was not signed and therefore incompetent, whereas it was duly signed.
iii. Whether or not the decision of the lower Court was perverse in view of the fact that the decision of the learned trial Judge that the Appellant’s counter affidavit was not signed and therefore incompetent was based on an unsigned proposed copy of the Appellant’s counter affidavit attached as exhibit to a motion, in total disregard to the duly signed copies of the counter affidavit.
iv. Whether or not this suit is statute barred in view of the fact that the cause of action arose in 1982, when the applicable law then was the Fundamental Right Enforcement (Procedure) Rules 1979 which provides for one year limitation period within which to bring an application.”

The 1st Respondent on the other hand distilled five issues for determination thus:
1. Whether the learned trial Judge was right to have upheld the claim of the 1st Respondent under Fundamental Rights (Enforcement Procedure) Rules, 2009.
2. Whether the 1st Respondent’s suit is statute-barred.
3. Whether the learned trial Judge was right in awarding

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the 1st Respondent’s alternative claim for compensation.
4. Whether the pointing out by the learned trial Judge of the non-signing of the Appellant’s counter affidavit of 16/12/2013 was a mere obiter dictum.
5. Whether the decision of the trial Court is perverse. ”

In determining this appeal, I shall take the fourth issue formulated by the Appellant which the 1st Respondent formulated as his 2nd issue, that is whether the suit as presented at the trial Court was statute barred .

This issue will determine whether there is need to go into the other issues or not.

Looking at the facts of this case as presented by both parties, it is clear that the cause of action in the suit at the trial Court arose in 1982. The law applicable at that time was the Fundamental Right (Enforcement Procedure) Rules 1979. Order VII Rule 3(1) of the Fundamental Right (Enforcement Procedure) Rules 1979 provides as follows:
“Leave shall not be granted to apply for an order under these Rules unless the application is made within twelve months from date of the happening of the event, matter or act complained of, or such other period as may be prescribed by

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any enactment…”

The suit at the trial Court was commenced several years after the cause of action arose.

It is true that the Rules of 1979 were abrogated by the 2009 Rules, but the fact remains that the cause of action arose in 1982 when the Fundamental Rights (Enforcement Procedure) Rules, 1979 which was in force at that time had in effect a limitation statute. It is trite that the law applicable to a Cause of Action is the law in place when the cause of action arose. See AREMO II V. ADEKANYE (2004) 19 NSCQLR pg. 272 at 274 where the Supreme Court held as follows:
“The Legal position is that the applicable law to a cause of action is the law prevailing at the time the cause of action arose not withstanding that the law had been revoked at the time the action is being tried.”

As unfortunate and pathetic as it may sound, the 1st Respondent’s right to institute this action under the Fundamental Right Enforcement Procedure Rules, having commenced after twelve months from the date the cause of action arose, is statute barred.

This has resulted in very unfortunate consequences including robbing the trial Court of jurisdiction to entertain

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the suit. There is no need going into the other issues which I consider mere waste of time. One major effect of Limitation Law is that once it is breached, it deprives a Court of law the jurisdiction and consequently the competence to hear and determine the case.

It is therefore obvious that the statute of limitation contained in the Fundamental Right (Enforcement Procedure) Rules, 1979 is applicable to this suit since the cause of action arose in 1982. This appeal is allowed. Suit No. HC/365/2013 is statute barred. The judgment of the trial Court per Michael Edem, J., of the Calabar Division of the Cross River State High Court of Justice on the 2/6/2014 was delivered without jurisdiction. It is accordingly struck out. I make no order as to costs.

Other Citations: (2016)LCN/8911(CA)