Alhaji Isiyaku Yakubu & Anor. V. Nigerian Telecommunication Ltd & Anor. (2005)
LawGlobal-Hub Lead Judgment Report
AMIRU SANUSI, J.C.A.
ALHAJI ISIYAKU YAKUBU & ANOR. V. NIGERIAN TELECOMMUNICATION LTD & ANOR.
(2005)LCN/1860(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of December, 2005
CA/J/249/2001
RATIO
EVIDENCE: WHAT THE COURT IS TO DO WHEN IT IS FACED WITH AFFIDAVITS THAT ARE IRRECONCILABLE IN CONFLICT – AFFIDAVIT EVIDENCE
it is a settled law no doubt, that when a court is faced with affidavits which are irreconcilably in conflict, the judge hearing the case in order to resolve the conflict properly, should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call. See Akinsete Vs Akindutire (1966) 1 All NLR 147 at 148; Eboh & Ors Vs Oki & Ors (1974) 1 SC 179 at pp 189 – 190; Olu-Ibukun & Anor Vs Olu Ibukun (1974) 2 SC 41 at 48; Uku & Ors Vs Okumagba & 3 Ors (1974) 3 SC 35 at 56, 64-65; Falobi Vs Falobi (1976) 9-10 SC 1. PER AMIRU SANUSI, J.C.A.
EVIDENCE: WHETHER IT IS ONLY BY CALLING ORAL EVIDENCE THAT SUCH A CONFLICT IN AFFIDAVITS CAN BE RESOLVED
it is equally the law, that it is not only by calling oral evidence that such a conflict in affidavit can be resolved. Such a conflict can be resolved by authentic documentary evidence at its disposal. It can suo motu resolve conflicting affidavit evidence by resorting to the documentary evidence. See Ezegbu Vs First African Trust Bank Ltd & Anor (1992) 1 NWLR (Pt 220) 699 at page 720; Nwosu V Imo State Environmental Sanitation Authority and Ors (1990) 2 NWLR (Pt 135) 688 at 718. PER AMIRU SANUSI, J.C.A.
JUSTICES
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
IFEYINWA CECILIA NZEAKO Justice of The Court of Appeal of Nigeria
Between
ALHAJI ISIYAKU YAKUBU
ALHAJI ISIYAKU YAKUBU ENTERPRISES LTD – Appellant(s)
AND
NIGERIAN TELECOMMUNICATION LTD
THE TERRITORIAL MANAGER NITEL, YOLA – Respondent(s)
AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Adamawa State High Court, Curom I. Thomas. J (as he then was), delivered on 20th of May, 1997 (herein after referred to as the lower court). At the lower court, the two appellants herein were the plaintiffs, while the two Respondents herein were the defendants. The two appellants/plaintiffs took a writ of summons and sought the under-mentioned relief as per their Amended Statement of claim filed with leave of the lower court. The reliefs sought are set out below:-
An order of court to the 1st defendant to remove their two poles front the plaintiffs’ premises.
An order of perpetual injunction restraining the further trespass to the plaintiff’s premises.
The sum of N10,000,000.00 (Ten Million Naira) general damages jointly and severally against the defendants for trespass to the plaintiffs’ premises.
A declaration that the recoveries from the 1st plaintiff by the Defendants of two telephone line Nos. 24184 and 24119 situated at No. 19/21 Gimba Road and No.4 Warwar Street, Nassarawa Jimeta, Yola, is illegal, unlawful, unjustifiable, ineffective, null and void and of no effect whatsoever.
An order of the court compelling the defendants to restore the said two telephone lines Nos. 24184 and 24119 situated at No. 19/21 Gimba Road and No.4 Warwar Street, Nasarawa Jimeta-Yola.
The facts which gave rise to this appeal are simple and straight forward, sometime between 1977 and 1978, the 1st defendant which is public utility company, installed two telephone poles in the landed properties owned by the plaintiffs. The plaintiffs claimed that the erection of the two poles caused some inconveniences to them in that it prevented them from embarking on development of their land on which they intended to construct a two-storey building, for which they obtained goverments approval so to do. The plaintiffs claimed that they made incessant demands to the two defendants to remove the two poles, but they turned deaf ears to the plaintiff’s request and thereby failed or refused to acceed to their request of removing the two poles. In view of the defendants’ alleged refusal or failure to remove the poles, the plaintiff sued them at the lower court by filing a writ dated 7th February, 1994. Pleadings were ordered, filed, exchanged and later amended. But before hearing in the matter commenced, the defendants, now respondents filed motion on notice on 2nd April, 1997, praying the lower court to strike out the suit on the ground that the claim made by the plaintiff was statute barred. The plaintiffs filed counter affidavit opposing the application for striking out of the suit. On the 19th of May, 1997, the application came up before the lower court for hearing. On that day, the plaintiffs were present in court, but their counsel was absent. The court thereupon refused to grant the 1st plaintiff’s request that the court should allow his counsel to appear even though he conceded that his counsel was aware that the motion was coming up for hearing on that day. The motion was argued by the defendant’s/applicant’s counsel, while the 1st plaintiff also replied. The lower court thereafter, adjourned the matter for ruling. On 20/5/97, the lower court in a consider ruling granted the defendants/respondents prayers to strike out the suit filed by the two defendants and dismissed it for being statute barred. Aggrieved by the lower court’s ruling, the two appellant’s appealed to this court.
As had been the practice in this penultimate court, the appellants, had on 28/2/2003 filed their brief of Argument wherein they formulated three issued for determination of their appeal. The 3 issued raised are as follows:-
Whether the trial Judge was right, when he held that plaintiffs/appellants action is statute barred and that the respondents are both protected by Section 2(a) of Public officers Protection Act Cap. 379 Laws of the Federation 1990.
Whether the plaintiffs/appellants were given fair hearing by the trial Judge in view of the fact that, after the counsel to the Respondents was heard on his motion, praying the suit be struck out, the appellants were denied the right to allow their counsel to reply on the motion before the ruling dismissing the Appellants suit was delivered.
Whether the trial Judge was right in dismissing the appellants’ suit instead of striking it out as sought by the motion paper filed by the Respondents’ counsel.
On their part, the Respondents when served with the appellants brief also filed their brief of argument on 10th of May, 2004, with leave of this court extending their time to do so out of time. In the said Respondents’ brief of argument, they also formulated three issues for the determination of the appeal which are set out hereunder:-
(a) Whether the plaintiffs/appellants suit is statute barred.
(b) Whether the plaintiffs/Appellants were denied fair hearing.
(c) Whether the trial Judge was right, in dismissing the Plaintiffs’/Appellants’ suit.
A cursory look at the issues for determination identified by both parties leaves one in no doubt that they are the same or identical. This appeal will be resolved therefore based on the issues formulated by the appellants as they appear to one to be more elaborative and were elegantly considered serially starting of course with issue No. 1.
ISSUE NO. 1
On the first issue for determination, the learned Counsel for the Appellant, submitted that the learned trial Judge was wrong in law in holding that the action against the defendants/respondents was statute barred as such issue was not raised by the defendants/respondent in their pleadings, since when they (the plaintiffs/appellants) amended their pleadings, the defendants did not care to amend their pleading and by not so-doing, the defendants failed to join issues with them and therefore could be presumed to have been satisfied with the state of pleadings See Apene vs. Ayetobi (1989) 1 NWLR (Pt 95) 85 at 97. On the defendant’s/respondent’s failure to specifically raise the issue of statute bar, which is a defence, he submitted that such failure on the part of the respondents to raise it offends the provisions of Order 24 Rule 6(1) of Adamawa State High Court (Civil procedure) Rules 1987, which requires that special defences must be specifically pleaded. He also cited Kano vs Oyelakin (1993) 3 SCNJ 65 at 72, (1993) 3 NWLR (Pt. 282) 399; Leventis Tech Ltd Vs Petrojessice Ent. Ltd (1992) 2 NWLR (Pt 224) at 459. He added that trial courts are bound to hear and determine only cases put forward by the parties before it. See Okonji Vs Njokanma (1991) 7 NWLR (Pt 202) Pt 131 at 150. Onwoamanam Vs Fatuade (1986) 2 NWLR (Pt 21) 199 at 201 Para 9.
The learned Counsel also submitted that, where a party (as the defendant herein) fails to plead special defence(s) in his pleadings, then he loses his right to rely on it. See Kano Vs Oyelakin (supra). Yasin Vs Berclays Bank (1968) 1 All NLR 171; Mobil Oil Vs Coker (1975) 3 SC 175; Famuyide Vs v. R. C. Irving & Co. Ltd. (1992) 5 SC 112, (1992) 7 NWLR (Pt. 256) 639; Lion of Africa Vs Anuluoha (1972) 5 SC 98; Oline Vs Obodo (1958) 3 FSC 84;(1958) SCNLR 298; FCDA VS Naibi (1990) 3 NWLR (Pt 138) 270 and 281(F).
It was also the submission of the learned Counsel for the appellant that the lower court acted ultra vires, when it considered the issue of statute of limitation as raised by the defendants in their motion dated 2/4/97 because the defence of statute of limitation/or protection Act was not within the ambit of the substantive issues before it. He further argued that interlocutory application made by the defendants ought to have been hinged on the facts as pleaded by the parties. See Adenuga Vs Odumeru (2001) 1 SCNJ 34 at 45. He said the trial Judge ought not to have determined the case on affidavit evidence. See Alhaji Alfa Adaji Vs Alhaji Umaru Amodu. (1992) 8 NWLR (Pt 260) 472 at 479 paras C – D.
The learned Counsel further argued that defence a statute of limitation does not apply to issue of trespass since issue of trespass is a continuing action as in the instant case because a fresh cause of action arises and every continuance of trespass is a fresh trespass.
(1) Thompson Vs Gibson (1841) 7 MOW 456
(2) Clark Vs MGWRY (1895) 2 IrR 294
(3) Konskier Vs Goodman (1928) 1 KB 421
(4) Holmes Vs Wilson (1839) 10 A & E 503
(5) Hudson Vs Nicholson (1839) 5m & W 437
(6) Bowyer Vs Cooke (1847) 4 CB 236.
In another submission, the learned Counsel for the Appellant argued that section 2(a) of Public Officers Protection Law does not apply to cases founded on contract. See.
(a) NPA vs ConstruZioni Generali (1974) 12 SC 81 or (1974) NSCC 622 at 636/7.
(b) Salako V LEDB (1953) 20 NLR 169.
(c) Noriode V Western Urhobo Native Administration (1955 – 56) WRNLR 67 at 68.
(d) Judicial Service Commission Vs Alaka (1982) 8 -10 SC 42 at 65.
It is also submitted by the appellant’s Counsel, that Public officers Protection Act only applies to natural persons and does not protect an institutions or corporate bodies personalities or public utility companies and in this instant case, it does not protect the 1st defendant/respondent. See Atiyaye Vs Permanent Secretary Borno State (1990) 1 NWLR (pt 129) 728 at 730; Alapiki Vs Government of Rivers State (1991) 8 NWLR (Pt 211) 575 at 598. See also Nwankere Vs Adewunmi (1967) NMLR 45 or (1966) 1 All NLR 129 at 133; Judicial Service Commission Bendel State Vs Alaka (supra); Momoh Vs Okewale & Anor (1977) NSCC 365 or (1977) 6 SC 81 at 88; Yare V Nunku (1995) 5 NWLR (Pt 394) 129 para O Or (1995) 5 SCNJ 104. Quite interestingly, the learned Counsel also cited some authorities of the apex court, which gave decisions in conflict with those mentioned above, wherein the Supreme Court decided that Public Protection Law also extends to artificial persons. Some of these decisions include Ibrahim V JSC Kaduna State (1998) 14 NWLR (Pt 584) 1 at 36; Offoboche V Ogoja LG (2001) 7 SCNJ 468 at 486/7. He then urged this court to choose and follow any of the sets of decisions, it desires or pleases. See NEPA V Mrs Onah Trading under the name and style of El-Par Hair Care Centre (1997) 1 NWLR (Pt 484) 680. Concluding his submissions on this issue however, the learned Counsel in another breath, urged this court to hold that the Public Protection law does not apply to corporate persons, but applies to natural persons only. That is to say he urged this court to be guided by the decisions in the first set of decided authorities he cited earlier.
In his reply, the learned Counsel for the respondents submitted that the lower court was right in its decision, that the plaintiffs’/appellants’ action was statute-barred, adding also, that the respondents were protected by the Public Officer Protection Act, Cap 379, Laws of the Federation of Nigeria of 1990. He said that in order to determine the period of limitation the writ of summons and the statement of claim should be referred to see when the alleged wrong was committed which gave the plaintiff a cause of action. He said that this exercise could be done even without taking oral evidence. See Releigh Ind.(Nig) Ltd Vs Nwaiwu (1994) 4 NWLR (Pt 341) 760 at 764. The learned respondent’s counsel also submitted that it is only when trial or proceedings begin, that a party would not be allowed to call evidence to prove facts which were not pleaded or to rely on special defence that was not pleaded as provided in Order 25 Rule 6 of Gongola State High Court (Civil Procedure) Rules of 1987 applicable to Adamawa State. He said the provisions of the Rules did not preclude or bar a party from raising a defence of statute of limitation in an interlocutory application, even if the defence was not pleaded in the Statement of Defence. He submitted that since the plaintiffs’/appellants’ claims was founded on trespass to land, Section 7(4) of the Act 1966 limits the period for filing cases founded on tort to the six years. He said from the particulars of claim the Appellants, the action complained against by the plaintiffs took place 15 years after the suit was filed in 1993. He said that the action was therefore statute barred and as such no proceedings could be brought in respect of that cause of action. See Releigh Ind. (Nig) Ltd Vs Nwaiwu (supra); Egbe Vs Adefarasin (1987) 1 NWLR (Pt 47) 1.
As for the 2nd claim of protection of public officers, he argued that the provisions of Public Officers Protection Act also apply to cases founded on contract and tort, adding that the persons accused of committing the act are public officers acting in execution of their public duties. They were therefore protected by the provisions of section 2 (a) of Public Officers Protection Law Cap 111 Laws of Northern Nigeria which is in pari material with the corresponding section in the Public Officers Protection Acts Cap 379 Laws of the Federation of Nigeria of 1990. See Ibrahim Vs JSC (supra).
With regard to the second claim of the Plaintiffs/Appellants, their learned Counsel submitted that the protection by the Act applies also to both natural and artificial persons. See Section 2(a) of the Act and the case of Ibrahim Vs JSC (supra) See also section 18(1) of the Interpretation Act Cap 192 on the definition of a “Public Officer.”
I think it is helpful for a better appreciation of the complaints, to set out the relevant provisions of laws which are the pivots on which the appellants complaints revolve. In the first place, the respondents to the application on which the lower court ruled and which said ruling later become the subject matter of this appeal, was made pursuant to Section 7(4) of the limitation Act of 1966 (Act for short reads as below:-
Section 7(4) of the Act states this.
“(4)- Subject to the provisions of this Decree, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action occurred.”
Also, section 2(a) of the Public Officer Protection Act Cap 379, Laws of the Federation of Nigeria 1990 states as follows:-
“(2) Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance of execution or of any public duty, or in respect, or default in the execution of any such Act, law duty or authority, the following provision shall have effect:-
(a) The action, prosecution or proceedings 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 within three months after the ceasing there of.
Again, the Fifth Schedule to the Constitution of Federal Republic of Nigeria, 1979 as amended provided in its Interpretation Clause, the definition of the phrase “Public Officer” as a person holding any of the offices specified in Part II of the said “Fifth Schedule” Paragraph 14 as follows:-
“14- Chairman and members of the Board or other Governing bodies and staff of statutory or corporations and of companies in which the Federal Government or state Government has controlling interest”.
The foregoing are some of the pertinent provisions of the law to which references were made in the contentions of the parties in this appeal.
I deem it appropriate to deal with the first leg of the appellants’ grouse on the procedure adopted by the respondents by not raising the defence of limitation of time, in his pleading (“i.e. statement of defence) but instead by raising it by way of Motion on Notice before the commencement of the hearing in the suit at the lower court. Much as I am in entire agreement with the appellant’s counsel’s submission that special defences such limitation of action or that on action is statute barred should be specifically pleaded. See Kano Vs Oyelakin (supra); Yasin Vs Barclays Bank (supra). I am however unable to agree with him that such defence can not be raised in a motion even before taking evidence. See Raleigh Ind. (Nig.) Ltd Vs Nwaiwu (supra). Again in Nigeria Customs Service Vs Pazunaiye (2001) 7 NWLR (Pt.712) 357. Such defence was even raised in a Preliminary Objection. In fact, the Supreme Court in P.N. Udoh Trading Co. Ltd. vs. Abere (2001) 11 NWLR (Pt.723) held that a defence founded on statute of limitation is a defene that the plaintiff has no cause of action which can even be raised in limine and even without any evidence in its support. It is sufficient if prima facie, the date taking the cause of action outside the prescribed period is disclosed on the writ of summon and the statement of claim. It is therefore not correct to say that it can not be raised by the defendant/respondents in an interlocutory application.
It is also the submission of the appellants’ counsel in their brief, that interlocutory application made by the defendants ought to have been hinged on the facts as pleaded before the court. That is true. I think the facts as pleaded in the statement of claim brought in issue, the time the cause of action arose. The defendants in the Motion used the time stated in the statement of claim to aver in their affidavit supporting their motion and raised the issue that the action was statute barred. In that regard, I feel it would not be necessary to file or amend their statement of defence again to raise such defence especially in view of the fact, that the suit was disposed of by the lower court through affidavit evidence when it upheld the respondents’ averments and dismissed the action.
The learned Counsel for the appellant raised the issue of conflict in the affidavit supporting the motion and the counter affidavit filed by them (appellants) and queried that the lower court’s failure to call oral evidence to resolve the alleged conflict was fatal to their cases and was erroneous.
Now, on the issue of conflict in averments in affidavits, I agree that it is a settled law no doubt, that when a court is faced with affidavits which are irreconcilably in conflict, the judge hearing the case in order to resolve the conflict properly, should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call. See Akinsete Vs Akindutire (1966) 1 All NLR 147 at 148; Eboh & Ors Vs Oki & Ors (1974) 1 SC 179 at pp 189 – 190; Olu-Ibukun & Anor Vs Olu Ibukun (1974) 2 SC 41 at 48; Uku & Ors Vs Okumagba & 3 Ors (1974) 3 SC 35 at 56, 64-65; Falobi Vs Falobi (1976) 9-10 SC 1. But it is equally the law, that it is not only by calling oral evidence that such a conflict in affidavit can be resolved. Such a conflict can be resolved by authentic documentary evidence at its disposal. It can suo motu resolve conflicting affidavit evidence by resorting to the documentary evidence. See Ezegbu Vs First African Trust Bank Ltd & Anor (1992) 1 NWLR (Pt 220) 699 at page 720; Nwosu V Imo State Environmental Sanitation Authority and Ors (1990) 2 NWLR (Pt 135) 688 at 718. A close look at the depositions in the counter affidavit filed by the plaintiffs/appellants shows that they contradicted the facts contained in the statement of claim filed by them while the affidavit filed in support of the Motion filed by the defendants/respondents tally with the averments of the appellants in their Statement of Claim. It would even appear to me that there was no irreconcilable conflict in the affidavit evidence filed by the parties as would require the court resorting to calling oral evidence in order to determine whether or not the case was statute-barred and even if there was such conflict, the trial Judge could resolve and in did resolve same by referring to the documents available before him without necessarily calling any oral evidence. See also Madagali Local Government V National Population Commission (1998) 11 NWLR (Pt 572) 66; Nwosu V Imo State Environment Sanitation Authority (supra).
It is clear from paragraph 39 of the plaintiffs’ joint amended statement of claim that their claims, inter alia, are as follows:-
The sum of N10,000,000.00 (Ten Million Naira) general damages jointly and severally against the defendants for trespass to the plaintiffs premises.
The sum of N10,000,000.00 (Ten Million Naira, general damages in favour of the plaintiff for being deprived the use of the said two telephone lines. (emphasis supplied by me).
Paragraph 4(d) of the affidavit supporting the motion also incorporates the first claim mentioned in the Amended Statement of Claim as highlighted above. In the same affidavit, the applicants/respondents also in Paragraph 4(e) and (f) averred that the alleged cause of action occurred sometimes in 1977/78 and that they (applicants) are public officers respectively. It was also averred that the action was statute barred. These averments were however denied by the respondents to the motion who are appellants herein. From the nature of the claims as adumbrated supra. I have no difficulty in accepting the submissions, that the claims were founded on contract and tort alike. It is now settled law that statute of limitation is applicable to actions founded on simple contract or tort and that such action shall not be brought after the expiration of six years from the date in which the cause of action accrued. An action on contract must therefore be filed within six years from the time when the cause of action arose. Any such action brought out side the limited period prescribed by law is invalid, incompetent and can not be maintainable See Julius Berger Nig. Plc Vs Omogui (2001) 15 NWLR (Pt 736) 401; Nigerian Broadcasting Co V Bankole (1972) 1 All NLR (pt.1) Humbe Vs A-G Benue State (2000) 3 NWLR (Pt 649) 419; Bello V AG; Oyo State (1986) 5 NWLR (Pt 45) 828; Egbe V Adefarasin (No.2) (1987) 1 NWLR (Pt 47) 1; G & C lines Vs Olaleye (2000) 10 NWLR (Pt 676) 613; Akinbode V Chief Registrar (2003) 3 NWLR (Pt 808) 585. The instant action which relates to trespass and also tortuous, squarely came within the areas of law to which statute of limitation applied.
In the instant case, the appellant alleged trespass committed on his premises between 1977 and 1978 when the defendants/respondents (herein) erected poles on the premises. In Paragraphs 476 of their joint statement of claim, they alleged that they complained to them to remove them. It will seem to me therefore, that cause of action accrued right from the date they complained to the defendants/respondents. As from that date of the complaint for removal the alleged poles, trespass ceases to be continuing. Right from the date of the complaint, the cause of action accrued. In deciding whether an action is caught by law of limitation of action, regards must always be had to the time when the cause of action accrued. A cause of action accrues to a plaintiff when his cause of action becomes complete so that he can begin and maintain his action. See Adimora Vs Ajufo (supra) Per Oputa JSC at 30 – 31. See also Read V Brown (1989) 22 QBD 128; Lasisi Fadare Vs A-G of Oyo State (1982) 1 ALL NLR (Pt 1) 24.
It needs to be emphasized at this stage, that what determines whether a cause of action is statute barred or not is the claim in the Writ of Summons or Statement of Claim alleging when the wrong giving rise to the cause of action was committed and of course the date when the suit was filed. See Gulf Oil Co Nig. Ltd Vs Oluba (2002) 12 NWLR (Pt 780) 92. It is clear and undisputable, that the first cause of action arose in 1977/1978 and the writ was taken in 1993. That is to say a period of fifteen years. Thus, the first claim being one that touches on tortuous liability, is statute barred as held by the lower court by the provisions of Section 7(4) of Limitation Act, claims founded on tort should not be brought after expiration of six years from the date the cause of action accrued.
On the second leg of the plaintiffs’/appellants’ claim at the lower court, they alleged that the defendant’s respondents (herein) recovered their telephone lines. There is no dispute that the respondents are “Public Officer” within the definition of that phrase in Part II of the 5th Schedule to the 1979 Constitution of the Federal Republic of Nigerians as reproduced supra. It goes without saying therefore, that their action or omission is governed by the provisions of Public Officers Protection Act Cap 379, Laws of the Federation of Nigeria 1990, which is in pari materia with Public Officers Protection Law, Cap II Laws of Northern Nigeria. There is no doubt, that action could be instituted against public officers on tort or breach of contract. In other words, public officers could be sued for damages in claim of tort or breach of contract committed by them where such act or omission was committed by them in the execution of their official duty or duties. However, by the corresponding Provisions of Section 2(a) of the Act or Law, such action must be instituted within three months from the date the cause of action accrued. See Ibrahim V JSC (1998) 14 NWLR (Pt 584) Ekeogu Vs Aliri (1990) 1 NWLR (Pt 126) 345; Nwankwere V Adewunmi (supra); Atiyaye v. Permanent Secretary Ministry of Local Government Borno State (supra). In the instant case, as shown in Paragraph 37 of the plaintiff/appellants’ Amended Statement of Claim, the cause of action accrued in December 1992. That was the time the telephone lines were allegedly recovered. The two public officers i.e. the defendants/ respondents were sued in June, 1993 as shown on the Writ of Summons. That is to say, about seven months after the cause of action accrued. As I remarked above, Section 2 (a) of the Public Officers Protection Law/Act precludes any action from being filed against public officers after three months from the date when the cause of action accrued. In the instant case, the cause of action, i.e. alleged recovery of telephone lines occurred between 1987 to December, 1992. The action instituted against the two defendants/appellants is statute barred as rightly held by the lower court. See Ibrahim Vs JSC (supra).
The learned Counsel for the appellant somewhere in his submissions argued that the provisions of the Public Officers Protection Act or Law did not apply to the two Defendants/Appellants as they were not public officers and/or that they both are artificial persons and that the Act Law only applies to natural persons. I am in entire agreement with the finding of the learned trial Judge that the 1st respondent, i.e. Nigerian Telecommunications Ltd (NITEL) is a Company owned by the Federal government and thus covered by the provisions of the Public Officers Protection Act. The 2nd respondent is also a public officer. This contention is further supported by the decision of the Supreme Court in Ibrahim Vs JSC (supra) where it held by the Supreme Court that the word “person” used in a legislation connotes natural person and an “artificial person” such as corporation, sole or public bodies corporate or unincorporated. It was further held that the phrase “any person” used in the statute admits and includes artificial person. On this authority, I am of the view that the defendants/appellants are entitled to protection under Section 2(a) the Public Officers Protection Law/Act. I so hold. I also equally hold, that the plaintiffs’/appellants’ action or suit was statute-barred as found by the learned trial judge. The first issue for determination is therefore resolved against the two appellants and in favour of the two respondents.
Issue NO.2
On this issue the appellant’s counsel submitted that the learned trial judge by on 19/5/97 permitting the respondents’ counsel to move his motion, seeking the court’s order to strike out the plaintiffs/appellant’s case he did not give them fair hearing as guaranteed in Section 36(1) of the Constitution of Federal Republic of Nigeria 1979. He argued that by such provisions, courts should hear both sides in dispute before it determines their rights. He said the 1st appellant who was representing the 2nd plaintiff/appellant, informed the court that he was in their lawyer’s office on 18th and 19th May, 1997, but was informed that their lawyer was not in town. He said the 1st plaintiff/appellant then because of the absence of their counsel sought for adjournment but the lower court refused and ordered the defendants’/applicants’ (now respondents’) counsel to move his motion which he did. He said thereafter, the lower court asked the 1st appellant, who was an illiterate to respond to the submissions of the applicants/respondents counsel even though he asked for time to enable his counsel appear, but the court refused to adjourn and closed the matter. The learned Counsel further submitted that the 1st appellant having been forced into the witness box had no option but to tell the court that he had no reply. He finally argued that in view of the importance of the matter before the court in which they even filed counter affidavit, the lower court should have adjourned the matter for their counsel to appear and reply accordingly. By not granting them adjournment, the lower court, according to the learned appellant’s counsel, had shut them out. He said with the conflicts that manifest in the affidavit supporting the motion and the counter affidavit which would have warranted the calling of oral evidence to resolve the conflict, the lower court ought to have granted them adjournment. He finally submitted that sins of counsel should not be visited on the litigant. He referred to the case of Daniang V Teachers Service Commission (1996) 5 NWLR (Pt 446) 96 at 98. He urged this court to hold that they were denied their right to be heard.
Replying, the learned Counsel for the respondent submitted that the appellants were not denied fair hearing. He said their counsel was duly served, but he refused to appear in court on 19/5/1997 and also did not write to the court to seek for adjournment. He said further that the 1st appellant who appeared personally and also represented the 2nd appellant, did not apply for adjournment to another date, but merely requested the court to wait for their counsel before it could allow the applicants’/respondents’ counsel to move his motion. He said since there was no application for adjournment, the lower court was therefore right in allowing the applicants’/respondents’ counsel to move their motion. He also submitted that there was no application by the 1st appellant for adjournment to reply before or after the motion was heard. He said the appellants were therefore not denied their right to fair hearing as availed them by Section 36(1) of the 1979 Constitution adding that their counter-affidavit was duly considered by lower court in its ruling. For what constitutes denial of fair hearing, the learned counsel cited referred to the case of Wilson V Oshin (2002) 2 SCNQR (Pt 2). It was also the submission of the respondent’s counsel that refusal of the court to wait for a counsel has not occasioned any miscarriage of justice or did not offend the doctrine of audi alteram partem, as courts do not wait for counsel.
In view of the conflicting submissions made by the learned Counsel in the parties on what transpired at the lower court’s proceedings of the 19th May, 1997, I think it would be of immense importance to reproduce below, the proceeding of 19/5/97 as shown on pages 60-61 of the Record of Proceedings of the lower court. The proceedings of that day went this way:-
“This 19th May, 1997.
Plaintiffs and defendants are in court.
Appearances;
Hassan Esq for the defendants/applicant.
Plaintiff’s counsel is absent, and there is no letter from the counsel explaining his absence.
Plaintiff:- My counsel is aware of today’s sitting. I went to his chambers yesterday and today, but his secretary told me that he traveled. He is out of town.
Hassan:- We have a motion on notice and since the plaintiff’s counsel is absent and he is aware, we are ready to proceed with the permission of the court.
Plaintiff:- We have filed a counter affidavit to the motion, I would like the court to wait until when my counsel comes before the motion is heard.
COURT:- The court will not wait for the plaintiff’s counsel to come at the time pleases him. He is aware of today’s sitting, but he has absented himself without even the courtesy of writing to the court explaining his absence or seeking for an adjournment. Since plaintiffs are in court, the motion should proceed.
SGD
(HON.JUSTICE .I.THOMAS)
HC/JUDGE
19/5/97.”
And after the learned Counsel for the applicants (now respondents) finished moving his motion, the proceedings of the lower court of the same 19/5/1999 contained as follows:-
“Plaintiff – Alh. Isiyaku Yakubu:
All that the defendant’s counsel has stated has been explained to me by the court clerk in Hausa, but I want my counsel to reply not me.
COURT:- The court has already explained to you that we can not wait for your counsel to come at the time he pleases. You should either reply or I record that you have no reply to make.
After all you yourself had deposed to and swore to the counter-affidavit dated 5th May, 1997.
Plaintiff: I have no reply to the motion.
COURT:- The motion is stood down to tomorrow 20th May, 1997 for ruling. Parties to appear tomorrow.
SGD
(HON. JUSTICE I. THOMAS
HC/JUDGE
19/5/97”
What can be gathered from the proceedings on what transpired on 19/5/1997 is that the learned Counsel for the appellants herein was aware that the case was to come up on 19/5/1997 but failed or refused to appear in court. He also did not write to tell the court his reason(s) for not coming to court or to seek for adjournment. Again there was nowhere in the record where the 1st appellant who was present in court, asked for adjournment, but he merely asked the court to wait for his count to come. And after the lower court refused to accede to his request to what for his counsel, the motion was heard and he also did not ask for adjournment to reply but merely insisted that he wanted his counsel to reply on his behalf. When there was no reply forthcoming from him, the court recorded him as having ‘No reply’ and thereupon adjourns the case to another date for ruling.
I must state here that question of adjournment is matter of discretion of the court concerned. It must depend on the facts and circumstances of each given case. This is so because, in matter of direction, no one case can be an authority for another and court can not. be bound by a previous decision to exercise its discretion in a particular way, for to be so bound, will in effect amount to putting an end to the discretion See Odusote Vs Odusote (1971) 1 NMLR 228 at 231. To my mind, an adjournment is therefore a matter within the discretion of the court even though such discretion must be exercised judicially and judiciously too. An appeal court will always interfere with refusal of court to exercise its discretion judicially and judiciously in granting application for adjournment where such refusal has occasioned mis-carriage of justice. See also; Tanko Juwa Vs The State (1969) NMLR 168 (SC); Nwokanem Vs State (1967) MLR 178 at 179. I should however point out here, that it is not every application for adjournment that should be allowed. Each case must be treated according to its special circumstances. See Abeki Vs Amboro (1961) 1 All NLR (Pt. 4)368, State V Iyabo Albert (1982) 5 SC 6, R V Shorunke (1946) AC 316.
Now, considering the circumstance of their case, it is clear that the learned Counsel was aware of the date fixed for the hearing of the motion. This is confirmed by the 1st appellant himself. He did not bother to write to the court informing it of his reason for his inability to appear. The court is not expected and in fact should not wait for a counsel to come and conduct his case before it. The 1st appellant when told that the court was not prepared to wait for his counsel as he urged, he did not ask for adjournment to enable him reply to the arguments of learned Counsel for the applicants/respondents in the appeal when moving his motion. In the present circumstances of this case, I do not agree with the appellant’s counsel’s submissions that they were not given fair hearing. This was an application in which the appellant filed counter affidavit and the lower court has duly considered their counter affidavit in its ruling now being appealed against. The appellants had as well, not shown that by not waiting for his counsel and proceeding in the hearing of the motion, a miscarriage of justice was occasioned to them. I therefore hold that the appellants were not denied fair hearing by the lower court. Their issue is again resolved in favour of the respondents and against the appellants.
Issue No.3
In this last issue, the appellants queried the decision of the lower court to dismiss the suit before it, instead of striking it out. By so doing, the learned Counsel submitted, that the lower court granted a relief which was not sought by the applicants/respondents, adding that it was wrong of it to dismiss suit instead of striking it out as prayed by the applicant/respondent in their motion. Responding to these submissions, the learned Counsel for the respondent though conceded that courts are not charitable organizations and would therefore not grant relief not sought, he however argued that where a court finds that an action is statute barred, such finding brings the matter to finality as it could not be relitigated again. Therefore, the order of dismissal made by the lower court was correct. He cited Lamina V Ikeja Local Government (1993) 8 NWLR (Pt 314) 758 at 760. Admittedly, the relief sought by the applicants/respondents was that the lower court should strike out the suit filed by the plaintiffs/respondents (now appellants) as shown in the motion papers. As a general rule, where there is right there is remedy. But an exception to that general rule is in the case of statute of limitation or limitation law. In such type of law the legislature prescribes a period within which a person who claims that his right has been tampered with or infringed upon, could bring an action in court for remedy. Such law is normally promulgated based on public policy and to bring an end to and litigation to avoid litigant from going in deep sleep to infinity and forget to seek redress on their infringed rights. This law will wake them and make them be alert and be up and doing in seeking redress timeously or within a short period rather than to delay in instituting such actions. By such law therefore, a plaintiff who might otherwise have had cause of action loses such right to enforce the cause of action or seek redress, loses such right to enforce such cause of action or seek redress through judicial process, against the person he feels has infringed on his right, because of the time laid down by the law, for instituting such action has elapsed See SPDC Ltd V Farah (1995) 3 NWLR (Pt 382) 148 Muhammed V Military Administrator Plateau State (2001) 16 NWLR (Pt 740) 524.
Now, on the type of final order a court could make, it has since been settled, that where a defendant raises a defence that a plaintiff’s action is statute-barred whether in his statement of defence, preliminary objection or through a motion on notice or in any other way and the court sustains or upholds such defence, the proper order such court will make in that circumstance is that of dismissal of the plaintiff’s action AND NOT merely striking it out. See Egboigbe V NNPC (1994) 5 NWLR (Pt 347) 649; Etim Vs IGP (2001) 11 NWLR (Pt 724) 266 at 285. In the instant case therefore, the learned trial Judge was right when in his ruling he said “the case is therefore not only struck out but is hereby dismissed being statute-barred…” Dismissal of the suit is therefore the proper order to be made in the circumstance of this case, since it can not be relitigated again by the plaintiffs/appellants, having been instituted outside the periods the claims could be made. The third issue is again decided against the appellants.
In the result, the having resolved all the issues raised by the appellants against them, the appeal is devoid of any merit. It fails and is accordingly dismissed. The Ruling of the lower court delivered on 20th of May, 1997 is hereby affirmed. I make no order on costs. So parties are to bear their respective costs.
(2005)LCN/1860(CA)
