Wuro Bogga Nigeria Limited & Anor V. Hon. Minister Of Federal Capital Territory & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA. J.C.A.
This is an appeal against the Ruling of the High Court of the Federal Capital Territory Abuja delivered on Friday the 7th day of March 2008.
The Appellants as Plaintiff by an action commenced at the Lower Court claimed against the Respondents the following reliefs:-
“(1) A declaration that the 2nd Plaintiff is the beneficial owner of the property located at Plot No. 6 Cadastral Zone BO5, Utako – Abuja which is covered by a previous Certificate of Occupancy file Number FCT/ABU/MISC: 7300 now numbered as file Number MISC 55124.
(2) An Order that the purported revocation without prior notice or fair hearing by the 1st and 2nd Defendants of the Plaintiffs’ right of occupancy in Plot No. 6 Cadastral Zone BO5, Utako- Abuja is unconstitutional, invalid, null, void and of no effect.
(3) An Order that the purported reallocation by the 1st and 2nd Defendants of the Plaintiff’s right of occupancy in Plot No. 6 Cadastral Zone BO5, Utako – Abuja to the 3rd and the 4th Defendants and indeed any third party is invalid, null, void and of no effect.
(4) An Order that the 1st and 2nd Defendants should reinstate the property located at Plot No. 6 Cadastral Zone BO5 Utako-Abuja to the 1st and or the 2nd Plaintiffs.
(5) An Order restraining all the Defendants/Respondents, their agents, servants, or privies from interfering with the right of the 1st and or 2nd plaintiffs to develop Plot No. 606 (sic) within Jabi District Abuja.
(6) An Order awarding the sum of N10,000,000 (Ten Million Naira) only against the 3rd and 4th Defendants to the Plaintiffs for trespass to the property of the Plaintiffs.
(7) And for such other orders or further orders as this Honourable Court may deem fit.”
The 1st to 4th Respondents by notice of Preliminary Objection challenged the Jurisdiction of the Lower Court to hear and determine the suit on the ground that the action is statute barred by virtue of the provisions of Section 2(a) of the Public Officers Protection Act.
In a considered Ruling, the Lower Court upheld the objection of the Respondents and dismissed the suit.
The Appellants being dissatisfied with the said Ruling of the Lower Court now appealed to this Court.
The Learned Counsel for the Appellants formulated two issues for determination as follows:-
(1) Whether under the FCT High Court (Civil Procedure) Rules 2004 an objection that an action is statute barred should be raised by a notice of Preliminary Objection or in the pleadings.
(2) Whether Section 2(a) of the Public Officers Protection Act can be applied to dismiss the Appellant’s action for Declaration of Title to Land on the ground that the action is not filed within 3 months and therefore statute barred. The Learned Counsel for the 1st and 2nd Respondents also formulated two issues for determination as follows:-
(1) Whether a Notice of Preliminary Objection challenging jurisdiction on the ground of statute bar is a demurrer within the meaning of the FCT High Court Civil Procedure Rules 2007.
(2) Whether this action is maintainable against the 1st and 2nd Respondents in view of the provisions of Section 2(a) Public Officers Protection Act, Cap 379 Laws of the Federation, 1990.
The Learned Counsel for the 3rd and 4th Respondents also formulated two issues for determination as follows:-
(1) Whether failure to file a Statement of Defence disentitles or disqualifies the 3rd and 4th Respondents from raising an objection as to the Jurisdiction of the Lower Court to entertain this suit.
(2) Whether the Appellants’ action was not statute barred having regard to the Public Officers Protection Act.
At the hearing Learned Counsel for the Appellants adopted and relied upon the Appellants’ brief of Argument in urging the Court to allow the appeal.
The Learned Counsel for the 1st and 2nd Respondents on one part and 3rd and 4th Respondents on the other part adopted and relied upon their respective Respondents briefs of argument in urging the Court to dismiss the appeal.
The issues formulated by Learned Counsel for the parties are similar but I prefer the issues formulated on behalf of the Appellants because it would settle the controversy between the parties once and for all.
ISSUE 1
Whether under the FCT High Court (Civil Procedure) Rules 2004 an objection that an action is statute barred should be raised by a notice of Preliminary Objection or in the pleadings.
The Learned Counsel for the Appellants referred to Order 22 of the FCT High Court (Civil Procedure) Rules, 2004 which he said provides that a party may raise any point of law by his pleadings, which point shall be disposed of by the trial Judge at or after the trial.
He submitted that the defence of the limitation is the kind of point of law contemplated under Order 22 rule 2 of the FCT High Court (Civil Procedure) Rules 2004.
He referred to the following cases:-
– Ketu & Another vs. Onkoro & Others (1984) 10 S.C. page 265 at 267:
– N.D.I.C. vs. C.B.N. (2002) 7 NWLR Part 766 Page 272.
He submitted that the Preliminary Objection raised by the Respondents in the Lower Court is a demurrer disguised as an objection on Jurisdiction.
On the other hand, the Learned Counsel for the 1st and 2nd Respondents stated that Jurisdiction is a threshold issue which may be raised at any stage in the course of proceedings. He referred to the following cases:-
– A. G. Ogun State vs. Coker (2000) 17 NWLR Page 303 at 314:
– Oloba vs. Akereja (1988) 3 NWLR Part 84 Page 508.
– Western Steel Works Ltd vs. Iron and Steel Workers Union (1986) 3 NWLR Part 30 Page 617.
He also stated that a Preliminary Objection challenging the jurisdiction of the Lower Court to hear the matter was based on the process which the Appellant filed before the Court.
He then submitted that a challenge on a statute of limitation to a suit is a challenge to the jurisdiction of the Court.
He referred to the cases of:-
– U.B.N. Plc vs. Ntuk (2003) 16 NWLR Part 845 Page 183 ratio 8:
– Arjay vs. Amisi (2003) 7 NWLR Part 820 Page 577:
– Galadima vs. Tambai (2000) 11 NWLR Part 677 Page 15.
The Learned Counsel for the 3rd and 4th Respondents in his own case stated that the issue of jurisdiction can be raised at any stage of the proceedings. He relied on the following cases:-
Western Steel Workers Ltd vs. Iron & Steel Workers Union (supra):
Petrojessica Enterprises Ltd vs. Leventis Technical Co. Ltd (1992) 5 NWLR Part 244 Page 675.
He went further in his argument that as at the time the 3rd and 4th Respondents filed their Preliminary Objection, the Writ of Summons, Statement of Claim and a Copious Affidavit in support of the objection were available to the Court for consideration.
He finally urged that this issue be resolved in favour of the 3rd and 4th Respondents.
In the Appellants’ Reply brief of argument in reply to 1st and 2nd Respondent’s brief of argument, the Learned Counsel for the Appellants submitted that most of the cases cited by 1st and 2nd Respondents on this issue dealt with the time the objection on jurisdiction can be raised, not the procedure for raising Limitation Statute under the High Court of the Federal Capital Territory Civil Procedure Rules 2004 which abolished demurrer.
He submitted that under Order 22 of the Federal Capital Territory High Court Civil Procedure Rules 2004, the proper procedure for raising the defence of limitation is that it is specifically pleaded and evidence lead to support it and not by demurrer.
In his reply to the 3rd and 4th Respondents, Learned Counsel for the Appellants referred to the cases of:-
– Western Steel Workers Ltd vs. Iron & Steel Workers Union (supra);
– Petroiessica Enterprises Ltd vs. Leventis Technical Co. Ltd (supra):
– Elabanjo vs. Dawodu (2006) 15 NWLR Part 1001 Page 76 cited by the 3rd & 4th Respondents.
He stated that the authorities are to establish the principle that the issue of jurisdiction could be raised at any time, and that none of the cases dealt with the procedure for raising the issue of Limitation Statute.
Learned Counsel therefore urged this Court to grant the reliefs sought by the Appellants.
A perusal of the Ruling of the Lower Court on pages 101 to 108 of the record of appeal showed that the ruling was in respect of challenge to the Jurisdiction of the Lower Court to hear the case. Jurisdiction of a Court is the lifeline of an action. It is the authority of a Court to determine a suit. In other words it is a sine qua non to an action, and it must be decided as soon as it is raised. It is like what blood is in human body, because without blood the organs of the body cannot function at all. And where a Court lacks jurisdiction, no matter how well the trial is conducted, the trial would be a nullity. See the following cases:-
– Elabanjo vs. Dawodu (supra):
– Madukolu vs. Nkemdilim (1962) SGNLR Page 321
– Aremo vs. Adekanye (2004) 13 NWLR Part 89 Page 572
– Shell Petroleum Dev. Co. vs. H. B. Fishermen (2002) 4 NWLR Part 758 Page 505.
It is settled law that the principles which guide the Court in the determination of whether or not it has jurisdiction include the following.-
(a) That the subject matter of the case is within its jurisdiction,
(b) That there is no feature in the case which prevents the Court from exercising its jurisdiction and;
(c) That the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See the following cases:-
Olutola vs. University of Ilorin (2004) 18 NWLR Part 905 Page 416:
– NDIC vs. CBN (2002) (supra)
The Learned Counsel for the Appellants relied upon Order 22 rule 1 of the Federal Capital Territory High Court Civil Procedure Rules, 2004 which he said abolished demurrer.
He went further that by Order 22 Rule 2 of the same Rule, a party may raise any point of law by his pleadings, which point shall be disposed of by the trial Judge at or after the trial.
It is clear from the provisions of Order 22 rule 2 of the Federal Capital Territory High Court (Civil Procedure) Rules 2004 that under the procedure in lieu of demurrer, any party is entitled to raise by his pleading any point of law and any point so raised may be disposed of by the trial Court at or after trial. But in the abolished demurrer procedure where the Applicant must not file a statement of defence before raising the points of law in contention, under the procedure in lieu of demurrer the point of law must be raised first in the Statement of defence before the Applicant can proceed to file his objection in which the point of law is again raised for determination before the trial.
But it has been held in so many cases that the objection to jurisdiction is much more fundamental, it could not be equated with demurrer.
In Elabanjo vs. Dawodu (supra) it was held by the Supreme Court per Mohammed JSC at page 116 paragraph F-G that:-
“In the instant case, all the circumstances and attributes outlined in the Petrojessica vs. Leventis Technical (supra) were on the ground when the Respondent filed her preliminary objection at the trial Court which erroneously refused to rule on it on the alleged ground that it was not competent having been filed before filing a Statement of Defence. To say, as did the trial Court and canvassed by the Appellants in their arguments before this Court, that objection to jurisdiction should only be taken after the filing of a statement of defence, is indeed a misconception.”
Also in Petrojessica Enterprises Ltd vs. Leventis Technical Co. Ltd (supra) Page 675 at 693. Belgore JSC (as he then was) said inter alia:-
“Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity…….. This importance of Jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court, a fortiori the Court can suo motu raise it. It is desirable that the preliminary objection is raised early on issue of jurisdiction, but once it is apparent to any party that the Court may not have jurisdiction it can be raised even viva voce as in this case. 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 also the following cases:-
– Western Steel Workers Ltd vs. Iron Steel Workers Union (supra).
Also in NDIC vs. CBN (2002) 3 SC Page at Page 10, the Supreme Court held among others that:-
“The tendency to equate demurrer with objection to jurisdiction could be misleading……
It does not always follow that he must plead first in order to raise the issue of jurisdiction.”
An objection that a Court has no jurisdiction to entertain a matter or action is not an ordinary point of law contemplated under Order 22 rule 2 of the High Court of the Federal Capital Territory Civil Procedure Rules 2004.
As I said earlier, the issue of jurisdiction is very fundamental. It can be raised at any stage of the proceedings in the High Court, Court of Appeal or even the Supreme Court.
See:- Kotoye v. Saraki (1994) 7 NWLR Part 357 page 414.
It has been held in Elabanjo vs. Dawodu (supra) that it is a misconception to hold that objection to jurisdiction should be taken after the filing of a statement of defence. When the objection can be taken depends entirely on what materials are available before the Court. It could be taken on the basis of the Statement of Claim, evidence received or even by a motion on notice supported by an affidavit giving the fact upon which reliance is placed. In fact, it could be taken even on the face of the writ of summons before filing Statement of Claim.
See the following cases:-
– Kasikwu Farms Ltd vs. Attorney General of Bendel State (1986) 1 NWLR Part 19 at Page 695:
Attorney General of Kwara State vs. Olawale (1993) 1 NWLR Part 272 Page 645:
Arjay Ltd vs. Airline Management Support Ltd (supra)
The difference between an objection to jurisdiction and a demurrer is that in a demurrer application, there should be a statement of claim in place, the facts of which the Applicant would be required to admit before bringing his objection. On the other hand, an objection to jurisdiction of the Court can be raised at any time, even when there are no pleading filed and a party raising such an objection need not bring application under any rule of Court.
The application can be brought under the inherent jurisdiction of the Court.
In this appeal under consideration, as at the time the Respondents filed their Preliminary Objection to the jurisdiction of the trial Court to entertain the Appellants’ suit, not only the writ of summons and statement of claim had been filed and served, the 1st and 2nd Respondent’s notice of Preliminary Objection and the Preliminary Objection by 3rd and 4th Respondents which was supported by an affidavit had also been filed and served.
The trial Court was therefore right when it held that “an objection challenging the jurisdiction of a Court is not a demurrer and can be raised without filing a statement of defence.”
In effect all that I have been saying boiled down to the fact that an objection to jurisdiction stands on its own because it is much more fundamental than demurrer, it must be determined before the Court can proceed in the matter and a Defendant is permitted to raise such an objection if it will be decisive of the whole litigation, therefore the failure to file a statement of defence cannot disentitle the Respondent from raising an objection as to the jurisdiction of the lower Court to entertain the suit.
It is therefore my humble view that an objection to jurisdiction based on statute of limitation is undoubtedly an objection on the competence of the lower Court to entertain the suit.
In view of the foregoing this issue is therefore resolved in favour of the Respondents and against the Appellants.
ISSUE 2
Whether Section 2(a) of the Public Officers Protection Act can be applied to dismiss the Appellant’s action for Declaration of Title to Land on the ground that the action is not filed within 3 months and therefore statute barred.
The Learned Counsel for the Appellants referred to their claim at the Lower Court which is for Declaration of Title to Plot No. 6 Utako (BO5) District, Abuja.
He referred to the following cases of:-
Federal Government of Nigeria vs. Zebra Energy Ltd (2002) 18 NWLR Part 798 Page 162 where it was held among others that the Public Officers Protection Act is not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or claims for work and labour done.
– Salako vs. L.E.D.B. & Another (1953) 20 NLR Page 169.
He submitted that the applicable law on the limitation of time in an action for recovery of land within the Federal Capital Territory Abuja is Section 15 of the Limitation Act Cap 522 Laws of the Federation of Nigeria.
He stated that the letter of revocation of the Appellants’ Statutory Right of Occupancy in Plot 6 Utako (BO5) District Abuja was dated 5th October 2005 but received on 18th May 2000 and an action was filed on 19th June 2007.
He submitted that the Appellants’ Claim against the Respondents at the lower Court was commenced within time and that it is not statute barred.
The Learned Counsel for the 1st and 2nd Respondents in his own submissions argued that time began to run from 18th May 2000 when the Appellants received the notice of revocation. He went further that the suit was filed outside the statutory period of 3 months.
He relied on the following cases:-
– Owie vs. Ighiwi (2005) 5 NWLR Part 917 page 184 at 214:
– Woherem vs. Emeruawa (2004) 13 NWLR Part 890 Page 398 at 419.
Learned Counsel stated that it is trite Law that Statement of Defence is of no probative value in determining in limine whether or not a suit is statute barred.
He relied on the case of:-
– Ajibona vs. Kolawole (1996) 10 NWLR Part 476.
He also stated that it is trite that the power of the 1st and 2nd Respondents to grant allocation is statutorily provided for in Section 5(1) (a) Land Use Act.
He went further in his submissions that an exercise of a statutory power cannot be held to be invalid.
He relied on the following cases:-
Dabo vs. Abdulahi (2005) 7 NLR Part 923 Page 181 :
Ibrahim vs. JSG Kaduna State (1998) 14 NWLR Part 584 Page 36:
Sanda vs. Kukawa L.G.A. (1991) 2 NWLR Part 174 Page 379 Pages 388 – 389.
It was also contended on behalf of the 1st and 2nd Respondents that an action for recovery of land presupposes that there is a trespasser. And the nitty gritty of such action therefore will be to recover possession or eject the trespasser from the land. He went further in his argument that the 1st and 2nd Respondents exercised the powers conferred on them by Section 297 (2) of the 1999 Constitution, Section 5 (1) and 28 of the Land Use Act and Sections 1 (3), (4) and 18 of the Federal Capital Territory Act by performing the action giving rise to this suit and therefore protected by Section 2(a) of the Public Officers Protection Act.
He submitted that “any action” as contained in Section 2(a) Public Officers Protection Act, is one arising out of any act done in pursuance or execution of any Act or Law or of any Public Duty undertaken by the 1st and 2nd Respondents or its staff.
He relied on the following cases:-
– Umukoro vs. NPA (1997) 4 NWLR Part 502 at 656:
– Odediran vs. NPA (2004) 7 NWLR Part 872 Page 230 at 237:
– NPA Plc vs. Lotus Plastics Ltd (2005) 19 NWLR Part 959 Page 158 at 188:
– Ambode vs. Ministry of Foreign Affairs (2004) 14 NWLR Part 894 Page 506 at 523.
It was submitted further that where actions are brought against Public Officials, they must be brought quickly, that is within 3 months as provided by Section 2(a) Public Officers Protection Act.
He relied on the following cases:-
Woherem vs. Emereuwa (supra) at 415:
Mohammed vs. Military Administrator Plateau State (2001) 16 NWLR Part 740 Page 524 at 545 – 549.
Learned Counsel for the 1st and 2nd Respondent finally urged this Court to dismiss this appeal.
The Learned Counsel for the 3rd and 4th Respondents in his own submissions stated that an examination of the totality of the statement of claim filed by the Appellants would reveal that their complaint or grouse is against the revocation of their title to a piece of land by the 1st and 2nd Respondents. He submitted that 1’t and 2nd Respondents were acting in the execution of their public duties in the revocation of the Appellants Right of Occupancy. He referred to Section 2 (a) of the Public Officers Protection Act.
He stated further that this suit was filed on 19th of June 2007, a period of over one year after the receipt of the letter of revocation. He then submitted that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be instituted after the time prescribed by such statute. He relied on the case of:-
Ibrahim vs. JSC Kaduna State (supra) at Page 32.
Learned Counsel finally urged this Court to resolve the issue in favour of the 3rd and 4th Respondents and hold that the Appellant’s action was statute barred having regard to the Public Officers Protection Act.
In his reply brief the Learned Counsel for the Appellants reiterated his earlier submissions and urged that the ruling of the lower Court be set aside and the suit be sent to another Judge of the High Court of the Federal Capital Territory for the trial of the issues on the merit.
The Appellants claim at the lower Court is for the Declaration of Title to Plot No. 6 Utako (BO5) District Abuja. A careful examination of the Writ of Summons and the Statement of Claim at the lower Court would reveal that the Appellants are contesting the revocation of the Right of Occupancy granted them over the piece of land earlier referred to above. Their claim is therefore a claim for the recovery of land.
It has been contended on behalf of the 1st, 2nd, 3rd and 4th Respondents that the suit of the Appellants at the lower Court is statute barred by virtue of the provision of Section 2 of the Public Officers Protection Act.
It is settled law that the Public Officers Act would not apply in cases of this nature because in Federal Government of Nigeria vs. Zebra Energy Limited (supra) the Supreme Court held among others that:-
“…the Public Officers Protection Act is not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or claims for work and labour done.”
Also in Salako v. L.E.D.B. & Another (supra) it was held that Public Officers Protection Act does not apply to cases of recovery of land.
See also the case of Okeke vs. Baba (2000) 3 NWLR Part 650 Page 644.
It is my view that the authorities relied upon by Learned Counsel for the 1st, 2nd, 3rd and 4th Respondents on this matter are not relevant. Therefore, the provisions of Section 2(a) of the Public Officers Protection Act relied upon by the Learned Counsel for the Respondents is not helpful to them.
In view of the foregoing, I agree with the submissions of Learned Counsel for the Appellants that the applicable law on limitation of time in an action for recovery of land within the Federal Capital Territory, Abuja is Section 15 of the Limitation Act. Cap. 522 Laws of the Federation of Nigeria.
In this appeal, the letter of revocation of the Appellants Statutory Right of Occupancy in Plot 6 Utako (BO5) District is dated 5th day of October 2005 which the Appellant said he received on 18th day of May 2005 and that he filed an action at the lower Court on the 19th day of June 2007.
According to Section 15 of the Limitation Act, no action by a person to recover land shall be brought after the expiration of twelve (12) years from the date on which the right of action accrued for the person bringing the action.
It is a common ground between the parties that this suit was filed on 19th day of June 2007 a period of over one year after the receipt of the letter of revocation. This will now lead me to the cause of action in this matter. A cause of action has been defined in the Dictionary of English Law, second impression page 325 as “the fact or combination of facts which give rise to a right to sue.”
This definition had been adopted in the following decisions:-
– Elabanjo vs. Dawodu (supra):
– Egbe vs. Adefarasin No. 2 (1987) 1 NWLR Part 47 Page 1;
– Savanah Bank of Nigeria Limited vs. Pan Atlantic Shipping & Transport Agencies Ltd (1987) 1 NWLR Part 49 at Page 212:
– Thadant vs. National Bank of Nigeria (1972) 1 SC Page 105.
Finally in P. N. Udoh Trading Company Limited vs. Abere (2001) 11 NWLR Part 723 Page 114 at 129 the term was defined thus:-
“Cause of action had been defined by Courts to mean a combination of facts and circumstances giving rise to the right to file a claim in Court for remedy. It includes all things which are necessary to give a right of action and every material fact which is material to be proved to entitle the Plaintiff to succeed.”
A cause of action matures or arises on a date where breach of any duty or act occurs which warrants the person thereby injured by such to institute a legal action in assertion or protection of his legal right that has been breached.
A perusal of the decision of the Supreme Court in Esbe vs. Adefarasin (No.2) (supra) would show that the period of limitation in any limitation statute is determined by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the Limitation Law, the action is statute-barred.
In this case the writ of summons and the Statement of Claim were filed at the lower Court on the 19th day of June 2007 and it is a common ground between the parties that the letter of revocation of the Appellants’ Statutory Right of Occupancy in Plot 6 Utako (BO5) District Abuja was dated 5th day of October 2005 which the Appellant received on 18th day of May 2006. The cause of action arose on 18th day of May 2006 and the period between 18th day of May 2006 and 19th day of June 2007 is just about one (1) year and one month. Whereas the Limitation Act allows an action to be filed within 12 years from the date on which the right of action accrued and the time the action was filed.
In view of the foregoing, I hold that the Appellant’s action at the lower Court against the Respondents was commenced within time and it is not statute barred. The Learned trial Judge was therefore in error in applying Section 2(a) of the Public Officers Protection Act to hold that the suit of the Appellants for a declaration of title to Plot No. 6 Utako (BO5) District Abuja is statute barred.
This issue is therefore resolved in favour of the Appellants against the Respondents.
In conclusion, the fact that Issue 1 was resolved against the Appellants will not stop this Court from allowing this appeal because there is merit in it.
In the result the Ruling of the lower Court in this matter delivered on 7/3/08 is hereby set aside and in its place, this suit is hereby sent back to the Chief Judge of the High Court of the Federal Capital Territory Abuja for re-assignment to another Judge who will hear the case on its merit without further delay.
The Appellants are entitled to costs which is fixed at (N75,000.00) Seventy-Five Thousand Naira against the Respondents jointly and severally.
Other Citations: (2009)LCN/3471(CA)
