Ibeto Cement Co. Ltd. V. The Attorney General of the Federation (2007)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
This is an appeal by the Appellant who was the Plaintiff in the High Court against the decision of the Federal High court holden at Abuja as contained in the judgment of A. O. Ogie J. delivered on 1st February, 2007 wherein the judge upheld the preliminary objection raised by the Respondent and dismissed the Appellant’s case on the ground that the action is caught by Section 2 (a) Public Officers Protection Act having been brought outside the 3 months from the time the learned trial judge held the cause of action arose.
Being dissatisfied with the said decision the appellant initiated an appeal by virtue of Notice and Grounds of Appeal, dated 1st February, 2007 and filed on 21st February, 2007, within the time permitted the Appellant to file an appeal.
RELEVANT FACTS:
By a Statement of Claim dated 5th October, 2006 the Appellant claimed against the Attorney-General of the Federation Republic of Nigeria in his capacity as the representative of the Federal Republic of Nigeria as follows:-
“(i) DECLARATION that having satisfied the standards set by the Federal Government for the importation and operation of cement concern in Nigeria as determined by the competent authority in the matter being the Federal Ministry of Industry as shown in the letter Ref. SI.1497IND/S.23/1 dated 5th May, 2006, the Defendant can no longer’.
(a) Deny approval to the Plaintiff for the importation of bulk cement;
(b) Enforce the order shutting down the Plaintiff’s cement plant situate at Port Harcourt and production;
(ii) DECLARATION that the Defendant is not entitled to proceed outside the guidelines as set by the Federal Government on Cement compliance by the Plaintiff of which was ascertained in the correspondence Ref. SI.1400/IND/S.23/1 dated 5th May, 2006 and act arbitrarily to deny Plaintiff of the right to import and manufacture came.
(iii) DECLARATION that the act of the Defendant excluding the Plaintiff from the list of companies approved for importation of cement is wrong and arbitrary.
(iv) DECLARATION that Defendant acted arbitrarily and in a wrongful manner in ordering the shutting down of the Plaintiff’s cement production plant at Port Harcourt.
(v) DECLARATION that the act of the Defendant in refusing the berthing of Plaintiff’s 6 (six) ships load of cement is wrongful and violation of the Plaintiffs rights.
(vi) ORDER compelling the Defendant to pay the Plaintiff the following sums:
(a) The sum of US $82,521,502.29 (Eighty Two Million, Five Hundred and Twenty one Thousand Five Hundred and Two United States Dollars, Twenty Nine cents) and
(b) N13,613,232,140.20 (Thirteen Billion, Six Hundred and Thirteen Million, Two Hundred and Thirty Two Thousand, One Hundred and Forty Naira, Twenty Kobo), being special damages for the loss incurred by the Plaintiff which details were stated. Also N10,000,000,000.00 (Ten Billion Naira) general damages were claimed by the Plaintiff.
The background of the case is that upon an inquiry made by the Appellant as to the extent of Federal Government Policy on the importation of bulk cement, the Government categorically stated that the policy as contained in a circular Ref. No. GD/12237/S.336/T/18 of 4th January, 2001 to the effect that Cement (Port land) H.S. 2523.2910 shall be imported in bulk only. By the said policy cement shall be discharged into silos at the site or into ship permanently removed to the coastline or into trucks for onward delivery to the hinterland for packaging into 50kg bags using machineries and facilities already installed at these locations.
In line with the foregoing and after putting in place the requisite plant and machinery the Appellant commenced importation of bulk cement. In August, 2005, the Federal Government introduced a new ingredient which required those in the industry to apply for bulk cement import allocation.
Upon an application, the Appellant was granted allocation and continued production until 18th November, 2001 barely two (2) months after production had commenced. Appellant discovered that this inexplicable development was induced by a position which falsely represented the facility and operation of the Appellant to the Presidency to the effect that the Appellant was violating the Government policy and enjoyed unlimited allocation of cement quota.
Despite the fact that the Appellant was not initially confronted with the allegations the Appellant proceeded to establish that the Appellant enjoyed only allocation of 800,000 metric tones in the year 2005 and that its operations were on land with infrared limestone deposits on which geophysical investigations and drilling had commenced in Ebonyi State and had taken very tangible steps towards actualising the projection of the Federal Government within the anticipated framework.
The Inter-Ministerial Committee which comprised the Federal Ministry of Industry, the Ministries of Finance, Solid Minerals Development and Commerce, Raw Materials Research Development Council and the Standards Organisation of Nigeria accompanied by representatives of all industry stakeholders investigated all cement production facilities in the country and discovered that the Appellant, working in partnership with Ebonyi State Government and Taiwan
Cement Engineering Corporation (TCEC) as technical partners was steadfastly and systematically realizing the Appellant’s Greenfield Cement Project in Ebonyi State.
Following the aforesaid approval the Appellant had embarked on the importation of eleven ships load of cement out of which eight had arrived Port Harcourt and were awaiting Government permission to berth while three were already approaching Port Harcourt at the time the shut down order was made. Following appellant’s plea the Federal Government permitted five ships to be discharged but refused six prompting the appellant to withdraw with the attendant damages owing to accrued demurrage and detention cost for which the ship owners claimed a lien on the cement cargoes.
Appellant at paragraph 28 of the statement of claim pleaded malice on the part of the Federal Government in the undeserved ostracism of the Appellant. Appellant supplied the particulars in paragraphs 29, 33 and 34 of the statement of claim to establish that other Companies which had not made the bona fide efforts undertaken by the Appellant were favoured whereas the Federal Government ignored specific recommendation made by the Federal Ministry of Industry to the effect that the Appellant had to a large extent exhibited concrete evidence and that the Appellant’s plant which was shut down should be re-opened.
Appellant annexed the letter from the Ministry of Industry Ref. SI.1497/IND/S.23/1 dated 5th May 2006 captioned “Implementation of the Federal Government policy on cement – Ibeto Cement Project” wherein the Federal Ministry of Industry vindicated the Appellant’s position and hinged the claim of entitlement to operate within the extant guideline on cement on the said letter.
Respondent filed a statement of Defence and in paragraph 7 urged the court to dismiss the suit for disclosing no cause of action, being an abuse of process and the suit not properly constituted. This application came up on 15th January, 2007 and the learned trial Judge held that since the Appellant claimed that the Appellant’s Plant was shut down on 11th November, 2005, the action was caught by Section 2 (a) of the Public Officers Protection Act since the initiation of the suit was on 5th October, 2006 by a writ of summons. The learned trial judge dismissed the suit on account of being statute barred and the Appellant has therefore appealed to this court.
The Appellant raised two issues for determination which are as follows:-
- Whether the learned trial Judge was correct when she dismissed the Appellant’s case in its entirety on the ground that the action was caught by Section 2 (a) of the Public Officers Protection Act.
- Whether there are not in the Statement of Claim averments which negate the application of the Public Officers Protection Act.
It seems to me that either of the two issues would resolve the dispute and I would utilise the ISSUE NO.1 as the sole issue.
Learned counsel for the Appellant said if the Respondent’s application is properly appreciated, it will be easily disclosed that no where in the motion paper did the Respondent pray that the suit brought against the Federal Attorney General was caught by the Public Officers Protection Act. That the application is to the effect that the parties to the suit were improperly constituted, the Appellant had no cause of action against the Respondent and that the suit was in abuse of process.
Mr. Ikpeazu SAN of counsel for the Appellant said it was in submission that the Attorney General raised the issue of the Public Officers Protection Act.
Learned counsel said the purpose of Order 25 Federal High Court (Civil procedure) Rule 2000 is to abolish demurrer and to avoid any element of surprise in the process of adjudication. That by virtue of Order 25 Rule 2 (1) a party shall be entitled to raise by his pleadings any point of law and any point so raised shall be disposed of by the judge. That by Order 25 Rule 2 (2) a point of law so raised may by consent of the parties or by order of the court of judge in chamber on the application of either party be set down for hearing and disposed of at any time before the trial.
Learned counsel stated on that the foregoing Order 25 Rule 2 (1) which requires a point of law to be raised in the pleading is couched in mandatory terms and it is therefore a pre-requisite to any point of law being entertained by the court. The Respondent did not in the pleading raise the point of law on which the decision of the court tilted and therefore the court was indeed without any basis to make the determination to the effect that the Public Officers Protection Act availed the Federal Attorney General.
Learned counsel for the Appellant further contended that a calm appreciation of the Statement of Claim was necessary in paragraphs 33 and 34 to properly ascertain when the cause of action arose exactly. That the function of the court under the procedure is to describe a question of law arising between the parties as a result of uncontested and certain sets of facts. He cited Okoye v. NCFC (1991) 6 NWLR (pt. 199) 501 at 540 – 541.
For the appellant it was further contended that it was not right to take a very stringent view of the Appellant’s case which would lead to an undeserved injustice. That the Appellant had supplied the reason for the shutting down of the plant which was to the effect that the President was misled into believing that the appellant misrepresented the number of ships load of cement the Appellant had imported and that the Appellant enjoyed unlimited allocation of cement quota. That that situation was restricted to the act which transpired in November, 2005 and therefore could not be the basis of the cause of action which essentially was based on a combined effect of reliefs 36 (i) (ii) (iii) (iv) and (viii) for the enforcement of the determination that the Appellant was qualified to intermittently receive its quota from year to year.
The learned SAN stated on that if the ban against the Appellant in 2005 was in perpetuity, then it may be assumed that any action which is sought to revitalize the Appellant’s engagement or lift the ban is caught by the act of shutting down. That this assumption, cannot be made for the reason that it is not so pleaded and it will be wrong to introduce into the Appellant’s pleading a fundamental variable which is not there. That it is trite that parties as well as the court are bound by the pleadings and all inquiries and determinations must be made based on the pleaded facts. He cited Adeniji v. Adeniji (1972) 4 SC 10 at 17; Shitta-Bay v. The Federal Public Service Commission (1981) 1 SC 40 at 59, Overseas Construction Company (Nig.) Ltd. V. Creek Enterprises (Nig.) Ltd. (1985) 12 SC 158 at 164.
Learned counsel for the Appellant went on to say that it is beyond reproach that in as much as the Appellant seeks to enforce the Appellant’s right to be accorded yearly allocations of import quota for the concession period of ten years which the Federal Government had agreed to, based on the instrument dated 5th May, 2006 the Appellant is not bound to November 6th and 18th 2005 when the unjustified action was taken against the Appellant’s concern acting in isolated and false allegations. That it does appear that for each year the allocation is due to be made, the Appellant is not only entitled to apply, but to enforce its rights which cannot be extinguished by virtue of the said isolated incident of 2005.
learned counsel for the Appellant further contended that it is quite possible that the learned trial Judge was influenced by the gravity of relief 36 (vi) of the statement of claim which may well be argued, could be hinged on the act of shutting down of 6th and 18th November, 2005. That this cannot becloud the fact that each head of the reliefs sought could be severable and must not all be infested with any legal impediment at the same time. That a determination that the claims in 36 (vi) is caught cannot affect the other heads of reliefs which virtually have nothing to do with the incidents of 6th and 18th November, 2005. That it will be rather tenuous to bend the cause of action founded on an open ended declaration of the Appellant’s qualification to participate in the period importation and manufacture of cement made in a letter of 5th May, 2006 to be subjected to incidents of 2005.
Mr. Ikpeazu stated on that the bid to enforce the favourable status of the appellant which was declared by virtue of the letter of 5th May, 2006 cannot be said to constitute an “action, prosecution or proceeding commenced against a person for anything done in pursuance or contended execution of any Act or law or of any public duty or authority or in respect of any alleged neglect or default. That in as much as the suit is founded on the entitlement of the Appellant to participate at least for the ten years period of concession and there being no action or inaction by the respondent with the effect of proscribing the Appellant from participating for the ten years duration, it cannot be rightly maintained that the Appellants action is caught by Section 2 (a) of the Public Officers protection Act. He referred to Yare v. Nunku (1995) 5 NWLR (pt,. 394) 129 at 151-152.
Learned counsel contended that the right of the Appellant and the injury to same which is the failure to include the Appellant in the list of preferred companies for cement importation allocation is a continuing act which will span the period of the ten years concession until it extinguishes. He stated on that even if it is said that the cause of action arose in November 2005 which is not conceded, the fact that correspondence and. communication continued between the parties therefore until 2006 letter of 5th May and then the notice of intention to commence proceedings of July, 2006 is rather significant. Such communication meant that both parties were seeking ways of attaining an alternative, which will negate the running of the limitation period, being a continuous wrong. That the Notice of intention to institute proceeding which was in July 2006 if considered to be the final communication between the parties is well within the three months from the inception of the suit. That if this is considered as a base, then the action is not caught by the Public Officers Protection Act, being the point at which all forms of negotiation terminated totally. That a party may elect not to enforce his rights for part of the duration in which he is entitled to exercise it. That as long as the period of concession is not extinguished the right inures to him as it is inherent and thus cannot be extinguished by the operations of any limitation law. He said it must be remembered that a limitation law or Act operates to extinguish or restrict the rights of parties to an action. That as much as the provisions of such laws are strict in their application, it is trite that they must be construed strictly to respect the rights of parties where it is necessitated by the facts of the case. He cited DIN v. A.G. Federation (1988) 9 SCNJ 14 at 47.
Learned counsel further stated that from the Statement of Claim all the bodies charged with the duty to determine the qualification of the Appellant to participate in the importation of bulk cement allocation had indeed written favourable reports on the status of the Appellant. That those officials had not done anything offensive to the Appellant and neither had they neglected to do anything to the detriment of the Appellant’s suitability to participate in the industry in the envisaged manner. Learned counsel said from what transpired no officer whose status is known to law in the enforcement of the Federal Government policy on cement had made a firm determination which would trigger off the running of the limitation period. That the Appellant was therefore operating well within the ten year concession period, enforcement of which forms the subject matter of the relief specifically 36 (viii) and over which the Public Officers Protection Act cannot apply until the effluxion of the said period. That approval being awarded from year to year barring a definite cancellation or termination of the concession, Appellant’s rights to the yearly allocation will arise from year to year. That the cause of action can therefore not depend on an act done with respect to each year. That there is nothing before the court based on the Statement of Claim indicating that the concession was terminated in its entirety.
Learned counsel for the Respondent stated that the condition for the applicability of the Public Officers Protection Act is satisfied in the present case as the Respondent fall within the meaning of “Public Officer” and/or “any person” as used in the Act and judicially interpreted by the Supreme Court in Ibrahim v. Judicial Service Committee Kaduna State (1988) 14 NWLR (pt. 584) 1 at 32 Federal Government of Nigeria & Ors. V. Zebra Energy Ltd, (2002) 18 NWLR b(pt. 798) 162 at 195.
Mr. Okoi of counsel for the Respondent said the Respondent is a member and an organ of the public service specifically created by the constitution. He cited Sections 150, 153 (i) (d), 169, 170, 171, (2) (b), 214 and 215 of the Constitution 1999. That the Respondent either in his capacity as the Attorney-General or in his representative capacity of the Ministries of Finance, Industries and Solid Mineral Development falls within the definition of a public officers in Ibrahim v. JSC, Kaduna State (supra).
Learned counsel for the Respondent stated further that the complaint forming the subject matter of the suit arose out of the act of the Federal government shutting down the Respondent’s factory and refusing the appellant’s ship to berth. That in proving this element, the statement of claim in the lower court is relevant. He referred to Plaintiff’s statement of claim and said that the entire claim rested on the Federal Government premised in the Respondent’s neglect or denial to approve Plaintiff’s importation as Respondent’s alleged shutting down of Plaintiff’s cement plant in Port Harcourt vide paragraphs (i) to (ii). That paragraphs (iii) to (v) are ancillary reliefs to the main claim that gave rise to the cause of action. That the ancillary reliefs collapse with the principal relief. He said it is trite that statutes that seek to protect the interest of the public should be interpreted so as to give effect to such law. He cited Egbe v. Alhaji (1990) 1 NWLR (pt. 128) 546.
Learned counsel for the Respondent submitted that the two legal conditions are present in the instant case, and that the Public Officers Protection Act is applicable and the trial Judge was right to have applied same. He cited Ambode v. Ministry of Foreign Affairs (2004) 14 NWLR (pt. 894) 506 at 520 and 523.
Learned counsel contended that the law is well settled that to determine whether an action is statute – barred the court is to consider the averments/assertions of the writ of summons and statement of claim with particular reference to the showing of the date when the alleged wrong took place. That recourse must be made to the date on which the writ was filed and if the intervening period between the two dates is more than the time allowed by the limitation of law, then the action concerned is statute barred. He referred to Woherem v. Emeruwa (2004) 13 NWLR (pt. 890) 389, NEPA v. Olagunju (2005) 3 NWLR (pt. 913) 603.
Mr. Okoi said that a cause of action arises and time begins to run when a breach of a person’s legal right occurs and there is in existence a person who can sue and another who can be sued upon such breach. He cited West African Portland Cement Plc. V. Adeyemi (2003) 12 NWLR (pt.835) 517 AT 535; UBA Plc. V. Abdullahi (2003) 3 NWLR (pt. 807) 357 at 374.
Learned counsel submitted further that the effective date of accrual of the cause of action in this case is November 2005 when the Appellant’s company was shut down. That the activities or acts described by the Appellant in their appellant’s Brief at paragraphs 506 – 511 took place after the cause of action had accrued and whatever was the act of the parties at that stage amounted to a negotiation after the cause of action had arisen and negotiation between the parties does not stop time from running. He cited Egboigbe v. NNPC (1994) 4 NWLR (pt. 347) 649; Adebanjo v. Ogun State Sports Council (2005) All FWLR (pt.279) 131 19.
That the proceedings initiated by the Appellant having come outside the time bar when the litigant had already lost his right of action, same having been extinguished, the action ought accordingly to be terminated. He cited NDIC v. CBN (2002) FWLR (pt. 99) 1021; Elabanjo v. Dawodu (2006) All FWLR (pt. 328) 604; FCDA v. Noibi (1990) 3 NWLR (pt. 138) 270; Akpan v. Utih (1996) 7 NWLR (pt. 463) 634.
Learned counsel for the Appellant said a careful and dispassionate attention to the Statement of Claim will reveal that the application to dismiss as well as the order of dismissal made by the learned trial Judge were more premature as the Appellant pleaded malice copiously as well as the fact that the Respondent acted arbitrarily in dealing with the affairs of the respondent, factors which will negate the application of the Public Officers Protection Act. That even with the events of 5th and 18th November 2005, the lower court was still in error in dismissing the suit having regard to the pleadings in paragraphs 18 – 29 of the statement of claim. That in those paragraphs Appellant pleaded that the Respondent was actuated by malice and thus acted arbitrarily and that the law is settled that such ingredients are sufficient to negate the application of the Public Officers Protection Act. He cited CRN v. Okojie (2004) 10 NWLR (pt.882) 488; Egbe v. Belgore (2004) 8 NWLR (pt. 875) 336; Nwankwu v. Adewunmi (1966) 1 All NLR 129; Offoboche v. Ogoja Local Government (2001) 16 NWLR (pt. 739) 458 at 485.
Learned counsel referred to paragraph 18 of the Statement of Claim wherein they deposed to the fact that the Federal Government proceeded with the order the shut down purportedly acting on a petition without giving Appellant notice of such petition and allegations and without giving Appellant of being heard on those allegations. That Appellant had pleaded in the pleading the various efforts made by the Appellant to establish the Federal Government prescriptions and the obstacles placed on their path and that there was enough in the pleadings to show malice which particulars they also proffered, all of which resulted in abuse of office which arbitrary acts negated the application of the Public Officers Protection Act. He said evidence of malice or arbitrariness need not be pleaded as such evidence is for trial in proof. He cited Odumosu v. ACB (1976) 1 SC 55 at 69, A. G. Anambra State v. Onuselogu Enterprises Ltd. (1987) 9 -11 SC197 at 217 – 219.
Respondent’s counsel, Mr. Okoi said to establish malice or an abuse of office the party alleging same must disclose to the satisfaction of the court that the action of the adverse party was ill-motivated and without lawful authority. That the statement of claim did not disclose any element of malice and abuse of office. That the allegation of malice in paragraphs 15, 18 and 28 of statement of claim went against a third party that is Appellant’s competitor (Tom Hadley) and not against the Respondent. That the malice that would negative the Public Officers Protection Act must be traceable to the act of the Respondent before a party relying in malice can have a defence to Public Officers Protection Act and derive a benefit from it.
I would like to restate the provision of the law in issue that is, Section 2 of Public Officers Protection Act Cap 379 Laws of the Federation.
- Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act law, duty or authority the following provisions shall have effect:-
(a) the action prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act neglect or default complained of, or in case of a continuance of damage or injury ceasing thereof.
In Egbe v. Belgore (2004) 8 NWLR (pt. 875) 336 it was held that By virtue of Section 2 (a) of the Public Officers Protection Act where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution of any law, or if any duty or authority or in respect of any alleged neglect or default in the execution of any such law, duty alleged neglect or default in the execution of any such law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or damage or injury within three months after the ceasing thereof.
A defence which is founded on a statute of limitation is a defence that the plaintiff has no cause of action.
It is a defence of law which can be raised in limine and without any evidence in support. It is sufficient if, prima facie the date of taking the cause of action outside the prescribed period is disclosed in the writ of summons and statement of claim. P. N. Udoh Trading Co. Ltd. V. Abere (2001) 11 NWLR (pt. 723) 114; Egbe v. Adefarasin (1985) 1 NWLR (pt. 3) 549; NEPA v. Olagunju (2005) 3 NWLR (pt. 913) 602.
The two conditions which must exist before a person can avail himself of the protection provided by Section 2 of the Public Officers Protection Act are firstly, that it be established that the person is a public officer, secondly that the act done by the person or persons in respect of which the action was commenced must be an act done in pursuance or execution or intended execution of a law or public duty or authority. I refer to C.B.N v. Okojie (2004) 10 NWLR (pt. 882) 488. Those two conditions are in existence in the case in hand and there cannot be any dispute worth its salt that can be brought in. Rather what is in issue is whether the Public Officers Protection Act avails the defendant or put in the opposite whether there are extenuating circumstances preventing the operation of that Act.
When a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. In other words, an action commenced after the expiration in the statute of limitation is not maintainable. Consequently, where an action is statute-barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action has elapsed. See Eboigbe v. NNPC (1994) 5 NWLR (pt. 347) 649 at 659; Odubeko v. Fowler (1993) 7 NWLR (pt. 308) 637; Sanda v. Kukawa Local Government (1991) 2 NWLR (pt. 174) 379; Ekeogu v. Aliri (1991) 3 NWLR (pt. 179) 258.
For a fuller understanding a statute of limitation such as the Public Officers (Protection) law removes the right of action, the right to judicial relief in a plaintiff and this leaves him a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute-barred. In other words the right to commence the action is extinguished by such law. See Ibrahim v. Judicial Service Commission, Kaduna State (1998) 14 NWLR (pt. 583) 1; Obiefuna v. Okoye (1961) 1 SCNLR 144; Egbe v. Adefarasin (1985) 1 NWLR (pt. 3) 549; Fadare v. A.G. Oyo State (1982) 4 SC.
The argument that the learned trial judge raised the issue of the Public Officers Protection Act suo motu since the application of the defence and the grounds raised therein were silent on that score would not apply in the circumstances. Since it cannot be said that the learned trial judge raised the issue and based her decision on it without hearing the parties on it. This is so since counsel for the defendant/Respondent had in oral submission addressed the court on it and the Plaintiff/Appellant had the opportunity to reply on it. Therefore it cannot be justifiably posited that it was the sale operation of the learned trial judge who had the power and duty to call attention on the possibility of entering into the adjudication without jurisdiction.
Once it is apparent to any party that the court may not have jurisdiction it can be raised even viva voce. There are, of course, cases in which a court should itself take an objection of its own motion, even though the point is not raised by any of the parties. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. See NDIC v. CBN (2002) 7 NWLR (pt. 766) 272 at 295; Petrojessica Enterprises Ltd. V. Leventis Technical Co. Ltd. (1992) 5 NWLR (pt. 244) 675.
The period of limitation is determined by looking at the writ of summons and the statement of claim only, to ascertain the alleged date the wrong in question which gave rise to the plaintiff’s cause of action was committed and by comparing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the limitation law, the action is statute barred. What needs to be emphasised is that the determining facts is the averment in the plaintiff’s writ of summons and statement of claim. The position becomes different where an issue is joined by the parties in their pleadings as to the date the cause of action arose. In that case, such an issue must be proved by the parties in the cause of the hearing of the suit by credible evidence to be determined by the court. See Woherem v. Emereuwa (2004) 13 NWLR (pt. 890) 398 at 416; Savannah Bank of (Nig.) Ltd. V. Pan Atlantic Shipping and Transport Agencies Ltd. (1987) 1 NWLR (pt. 49) 212.
In the computation of the period, it was contended for the Defendant/Respondent that the cause of action arose in 2005 and the writ initiated in 2006 after a period of 11 months or thereabout. The Plaintiff/Appellant disagreed contending that after 2005 there were further correspondences in consideration of which, when they commenced action they were still within time.
In continuing the provisions of statute of limitation it must be remembered that time begins to run where there is in existence a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to judgment. See Jallco Ltd. V. Owoniboys Tech. Services Ltd. (1995) 4 NWLR (pt. 391) 534; W.A.P.C. Plc. V. Adeyeri (2003) 12 NWLR (pt. 835) 517.
Bearing the above principle in mind together with the facts of this case it seems evident that the cause of action was not fully composed by the shutting down of the Appellant’s factory as there were other factors at play, along with other communication between Appellant and agencies of the Federal Government including the president on the 18.05/06 had written on the letter of 5/5/06 from the Federal Ministry of Industry the following:
“Minister, Not approved.Encouragement is for cement production, not for Plant at the port.
O. O.
18/05/06”.
That letter and reply of the President bring to the fore whether the cause of action had arisen before those correspondences and anything further was fore closed?
Cause of action means the fact or facts which give/gives a person a right to judicial redress or relief against another. The legal effect of an occurrence in terms of redress to a party to the occurrence. It also means a situation or state of facts which would entitle a party to sustain action and give him right to seek judicial remedy in his behalf. Bello v. A. G. Oyo State (1986) 5 NWLR (pt. 45) 828; U.S.A. Plc. V. Abdullahi (2003) 3 NWLR (pt. 807) 357.
The Appellant had in this appeal raised the defence of malice having actuated the action of the Public Officer or President for which the Public Officers Protection Act would not avail the Respondent.
Where malice is established on the part of a public officer, in the exercise of the administrative powers conferred on him by Section 22 (i) of the Federal High Court Act, 1973, the protection afforded him by Section 2 (a) of the Public Officers Protection Act would cease to avail him. See Egbe v. Belgore (2004) 8 NWLR (pt. 875) 336; Nwankwere v, Adeunmi (1966) SCNLR 66; Offoboche v. Ogoja L. G. (2001) 16 NWLR (pt. 739) 458.
The Public Officers (Protection) Law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification. Thus the law will not apply if it is established that the defendant had abused his position for the purpose of acting maliciously. In that case he is not acting within the terms of the statutory or other legal authority.
In such a state of facts he has abused his position for the purpose of doing wrong, and the protection of the law would not avail him. See Offobocha V. Ogoja Local Government (2001) 16 NWLR (pt. 739) 458; Nwankwere v. Adewunmi (1966) 1 All NLR 129; Lagos City Council v. Ogunbiyi (1969) 1 All NLR 197.
In Egbe v. Alhaji (1990) 1 NWLR (pt. 127) 546 Supreme Court held that, the idea of bona fides, malice or improper motive is without doubt an essential ingredient in the exercise of every lawful act. But a determination whether the act is lawful or not can only arise after a cause of action has been established.
Having what the Supreme Court said above in mind and the various circumstances existing in the case in hand especially the averments in the statement of claim and the attached exhibits especially the petition by the said Tony Hadley, Regional President For Africa, Lafarge S.A. France written to the President on 19th September, 2005 against the Plaintiff/Appellant to which the President of the Federal Republic of Nigeria had minuted to the Minister of Industry and the Minister of Finance thus:
“Minister of Industry
Minister of Finance
I instruct that the allocation which is the subject of this petition should be cancelled forthwith. A new allocation should be prepared for my approval on the basis of investment (poven) in cement factory in Nigeria.
O. O.
22/09/05”
From the dates above that are date of petition and response of the President a period of three days and within which no contact was made to the Appellant therefore Appellant’s allegation of malice or that the act of the President was motivated by malice cannot be ignored even though it needs be proved. Further more thereafter various correspondences between the Appellant and the relevant Public officials are evidenced.
In fact the statement of claim has provided a lot of materials showing that the shutting down of the factory was not the only isolated act upon which the cause of action would arise, built on and established. There were many facts and circumstances which needed full trial to ascertain whether there were any breaches and by whom and also cannot be determined in limine the exact time the cause of action arose. This is so because the various acts continuing and on going cannot be defined as negotiations after a cause of action had arisen.
Although the law does not prohibit parties to a dispute from engaging in negotiation for the purpose of settling the dispute, generally such a negotiation by parties does not prevent or stop the period of limitation stipulated by a statute from running. The law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run, merely because the parties engaged in negotiation per Adio JSC in Eboigbe v. NNPC (1994) 5 NWLR (PT. 347) 649 AT 659; Lahan v. The Attorney-General Western Nigeria (1976) WNLR 39.
The law that in considering whether an action is statute-barred negotiations between parties will not stop the time from running is subject to a qualification. Where there has been an admission of liability during negotiation and all that remains is fulfillment of the agreement, it cannot be just and equitable that the action would be barred after the statutory period of limitation giving rise to the action of the plaintiff were the defendant to resile from his agreement during the negotiation. See Eboigbe v. NNPC (1994) 5 NWLR (pt. 347) 649; Nwadiaro v. Shell PDC (1990) 5 NWLR (pt. 150) 322.
From what has been said above the present situation cannot be dismissed as a cause of action having arisen and overtaken by the period of limitation while negotiations were ongoing. No, the situation here is different and shows quite clearly that the only justice that can be done here is a trial on the merits as there is glaring evidence and materials showing that the trial judge’s jurisdiction was not ousted by the Public Officers Protection Act which in this case cannot operate. Therefore I am satisfied that the trial judge had and has jurisdiction to try this matter fully on the merits. I in the circumstances resolve the issue between the parties in favour of the Appellant.
I allow the appeal and send the suit back to the Federal High Court, Abuja to be tried on the merits by a judge other then Ojie J.
Other Citations: (2007)LCN/2419(CA)
