Attorney General Of Adamawa State & Ors V. Attorney General Of The Federation (2014)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The Plaintiffs by a Writ of Summons filed on the 22nd day of February, 2011 initiated this suit and by it activated the original jurisdiction of the Supreme Court, suit being one between the Attorney General of Adamawa State and 15 others against the Attorney General of the Federation.

The Claims set out by the plaintiffs are recast hereunder as follows:-

The Plaintiffs’ claim against the Defendant is for the sum of Seven Billion, Thirty Nine Million, Seven Hundred and Seventy Three Thousand, Three Hundred and Forty Eight Naira (N7,039,773,348.00) being the total outstanding value of the assets of the defunct Northern States Marketing Board taken over by the Federal Government of Nigeria that presently consist of Adamawa, Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Niger, Sokoto, Taraba, Yobe, and Zamfara States, which amount is computed in the following manner:-

A. Amount admitted by the Defendant as at 27th July, 1983, which is the sum of N3,091,710 (Three billion, Ninety-one Million, Seven Hundred and Seventeen thousand, Seven Hundred and Ten Naira) being the current equivalent of the admitted sum of N10,305,725.70 calculated in the following manner:-

i. The aforementioned amount admitted by the Defendant as at the time of takeover of Assets is the sum of N10,305,725.7.

ii. Rate of exchange between the Naira and the American Dollar at the time of takeover of assets was N0.50k to $1.00.

iii. American Dollar equivalent of the admitted sum at the time of takeover of assets calculated at the aforementioned governing exchange rate of N0.50k to $1.00 amounts to $20,611,451.40.

iv. Current official exchange rate between the Naira and the American Dollar is N150.00 to $1.00.

v. The standing total admitted sum calculated at the current aforementioned official exchange rate of N150.00 to $1.00 (that is $20,611,451.40 x N150.00), amounts to N3,091,717.710 (Three billion, Ninety-one million, Seven hundred and Seventeen thousand, Seven hundred and Ten Naira), and

B. Undisputed additional claim of the sum of N3,948,055,638 (Three billion, nine hundred and forty eight million, fifty-five thousand, six hundred and thirty-eight Naira) being the current equivalent of the additional undisputed claim of N13,160,185,46 submitted to the Defendant in August, 1984 calculated in the following manner:-

i. Total additional undisputed claim for movable properties and cotton store complexes taken over by the Defendant as at the time of taking over of assets is N13,160,185.46.

ii. Rate of exchange between the Naira and the America Dollar at the time of taking over of assets was calculated N0.50k to $1,00.

iii. American Dollar equivalent of additional undisputed claim at the time of taking over of assets calculated at the then governing exchange rate of N0.50k to $1.00 amounts to $26,320,370.92.

iv. Current official exchange rate between the Naira and the American Dollar is N150.00 to $1.00.

vi. Total additional claim calculated at the current official exchange rate between the Naira and the American Dollar of N150.00 to $1.00 (that is $26,320,370.92 x N150.00) amount to N3,948,055,638 (Three billion, nine hundred and forty-eight million, fifty-five thousand, six hundred and thirty-eight Naira).

C. As stated above, the total Plaintiffs, Claim against the Defendant (A+B) is for the sum of Seven Billion, Thirty-Nine Million, Seven Hundred and Seventy-Three Thousand, Three Hundred and Forty-Eight Naira (N7,039,773,348.00).

D. The cost of this action.

For a fuller understanding would be recaptured paragraphs 1 – 18 of the Statement of Claim which are, viz:-

STATEMENT OF CLAIM:

1. The sixteen Plaintiffs are the Attorney Generals (sic) of their respective States; and the sixteen States form part of the thirty-six States of the Federal Republic of Nigeria. The Plaintiffs are suing as representatives of the Governments of their respective States.
2. The Defendant is the Attorney General of the Federation and the representative of the Federal Government of Nigeria.
3. The Plaintiffs state that the sixteen States they represent constitute part of the Nineteen Northern States out of the thirty-six states that make up the Federal Republic of Nigeria.
4. The Plaintiffs state that in 1954, Northern Nigeria Marketing Board was established under the Northern Nigeria Marketing Board Law of 1954.
5. The Plaintiffs state that in 1968, when the Northern Region was split into six States comprising of North-Western, North Eastern, North-Central, Kano, Benue-Plateau and Central-Western States, the Northern Nigerian Marketing Board was renamed Northern States Marketing Board (hereinafter referred to as “the NSMB”).
6. The Plaintiffs state that in 1972, the then Benue-Plateau State comprising of the presently existing Benue, Plateau and Nasarawa States opted out of the NSMB.
7. The Plaintiffs state that in 1977, the Federal Military Government established Commodity Boards under the Commodity Boards Decree No. 29 of 1977 to replace the NSMB and other State Marketing Boards then existing in Nigeria; and provided under Section 23(3)(b) of the said Decree that the assets and liabilities of the NSMB and other State Marketing Boards that were dissolved with the coming into force of the Decree shall be transferred to the Plaintiffs that owned the NSMB and to the other States that owned the other State Marketing Boards.
8. The plaintiffs state in compliance with the provisions of the aforementioned Section 23(3)(b) of the Commodity Boards Decree the then reigning Supreme Military Council made it clear that any of the assets of the NSMB and of other dissolved State Marketing Boards taken over by the Commodity Boards shall be paid for by the Federal Military Government.
9. The Plaintiffs state that in compliance with the Federal Military Government directive the NSMB carried out an evaluation of its assets, which amounted to N42,019,229.00 and transmitted same to the Federal Ministry of Cooperatives and Supply in May, 1978.
10. The Plaintiffs state that out of the said N42,019,229.00 only N1,100,000.00 was paid to the NSMB by the Defendant leaving a balance of N40,919,229.72 calculated as follows:-

a) Immovable asset taken over by N11,106,121.79

b) Produce taken over N18,017,729.00

c) Bags, tarpaulins & twins N9,741.315.26

d) Cotton Stores Complexes (balance) N2,054,063.67

Total N40,919,229.72

11. The Plaintiffs state that in 1987, the Commodity Boards were dissolved and the Federal Military Government directed that all assets earlier taken over by the Commodity Boards be returned to NSMB.
12. The Plaintiffs state that only immovable properties were returned by the Commodity Boards but they failed to return or pay for the under listed movable properties which are valued as follows:-

a) Produce passed over to the Commodity Boards valued at N18,017,729.00

b) Tarpaulins, bags and twins valued N9,741,315.25

c) Furniture and Fittings valued at N—319,994.78

Total N28,079,994.05

13. The Plaintiffs state that in 1983, the Defendant by its letter No. SCB/MKT/XIII/53 dated 27th of July,

1983 accepted to pay N10,305,725.7 in final settlement of the indebtedness to the NSMB as stated in paragraph 12 of this Statement of Claim.

14. The Plaintiffs state that in 1984, the NSMB submitted additional claim to the Federal Military Government relating to more of its movable assets not returned to it consisting of tarpaulin, bags, twine, furniture, vehicles and fittings valued at N13,160,185.46 (Thirteen million, one hundred and sixty thousand, one hundred and eighty five thousand Naira and forty six Kobo), which claim was never disputed by the Defendant.
15. The Plaintiffs state that the NSMB, and through its Winding-up Committee, has written several letters to the Federal Government on the subjects relevant to this Suit but without any favourable response.
16. The Plaintiffs state that their Solicitors wrote several letters to the Defendant demanding payment for the amounts agreed to be paid by the Defendant and other outstanding amounts due to the Plaintiffs but without any reasonable response from the Defendant.
17. The Plaintiffs state that at the time of the takeover of the assets of the NSMB by the then Federal Military Government, the exchange rate between the Naira and the American Dollar was N0.150.00 to $1.00.
18. The Plaintiffs state that at the hearing of this Suit, they will rely on the following correspondences relevant to the Suit:-

a) Letter No. SHQS.35/14 dated 7th of February, 1977 written by Brigadier Shehu Musa Yar’adua, Chief of Staff, Supreme Headquarters to all Military Governors.

b) Letter dated 24th May, 1978 (and documents attached thereto) written to the Permanent Secretary, Federal Ministry of Cooperative and Supply by the Executive Secretary, NSMB Winding Up Committee.

c) Letter No. SCB/MKT/I/XII/269 dated 29th April, 1983 written to Sani Aminu & Co. by the Permanent Secretary, Federal Ministry of Agriculture Marked.

d) Letter No. SCB/MKT/I/XIII/53 dated 27th July, 1983 written to Sani Aminu & Co. by the Permanent Secretary, Federal Ministry of Agriculture.

e) Letter dated 13th August, 1984 written to Permanent Secretary, Federal Ministry of Agriculture by Sani Aminu & Co.

f) Letter dated 12th January, 1991 written to Hon. Minister of Agriculture by Sani Aminu & Co.

g) Letter dated 16th August, 1999 written to Hon. Minister of Agriculture by Sani Aminu & Co.

h) Letter NO. CADM/VOL/3/818 dated 28th September, 1999 written to Sani Aminu & Co. by the Northern State Marketing Board (NSMB winding up Committee.

i) Letter dated 7th August, 2007 written to Hon. Minister of Agriculture by Country Chambers.

j) Letter dated 6th August, 2010 written to Hon. Minister of Agriculture by Country Chambers.

k) Letter dated 1st November, 2010 written to Hon. Minister of Agriculture & Rural Development by Country Chambers.

STATEMENT OF DEFENCE

SAVE AND EXCEPT as hereinafter expressly admitted, the Defendant denies each and every allegation of facts contained in the statement of claim as if each has been set out and traversed seriatim.

1. The Defendant is the Chief Law Officer of the Federation and a Minister of the Government of the Federation.
2. The Defendant admits paragraphs 1 – 4 of the Statement of Claim.
3. The Plaintiffs’ claim of debt was and is barred by Section 7(1)(e) Limitation Act Cap.522 Laws of the Federation of Nigeria, 1990.
4. The Plaintiffs’ cause of action is predicated on correspondences dated 27th July, 1983 and 13th August, 1984 as stated in paragraphs 13 and 14 of the Plaintiffs’ Statement of Claim dated 17th February, 2011.
5. The Plaintiffs’ cause of action is based on monies owed to them by the Federal Government of Nigeria. The Plaintiffs’ claim is one to recover debts owed to them by the Federal Government of Nigeria.
6. Notice is hereby given to the Plaintiffs that the defendant will at the hearing of this suit contend that the Plaintiffs’ claims is statute barred by virtue of the provisions of Section 7(1)(e) Limitation Act Cap.522 Laws of the Federation of Nigeria, 1990.
7. The Defendant contends that the Plaintiffs action is frivolous, vexatious and statute barred and should be dismissed.

The Defendant went further to take out a Notice of Preliminary Objection to the Suit, which Objection was filed on 8th day of March, 2012 upon four grounds stated hereunder, viz:-

1. The claim of the Plaintiffs is statute barred by virtue of Section 7(1)(e) of the Limitation Act.
2. Whereas the law as stated in Daudu v. University of Agriculture Makurdi & 4 Ors (2002) 17 NWLR (Pt.796) 362 at 384 – 385 is that where a party’s action is statute barred, the following legal consequences will follow:

a. the party would lose his right of action;

b. the party would lose the right of enforcement;

c. the party would also irretrievably lose the right of judicial relief; and

d. the party would only have an empty cause of action which no court will assist him to enforce.

3. Whereas the cause of action upon which the Plaintiffs’ action is predicated is a letter dated 27th July, 1983 and 13th August, 1984 as stated in paragraphs 13 and 14 of the Plaintiffs’ Statement of Claim.
4. Whereas the Plaintiffs/Respondents instituted this action by way of civil summons in consequence thereof, the said action is at variance with Section 7(1)(e) of the Limitation Act.

Accompanying the Notice of Preliminary Objection is an 8 paragraph Affidavit in support deposed to by Kenechukwu M. Nomeh of counsel for the Defendant/Applicant which in the main at paragraphs 5 and 6 averred that the plaintiffs’ cause of action arose sometime in 1983 and this action instituted twenty-eight (28) years after that cause of action arose since the action was filed on the 22nd day of February, 2011.

Also filed with the Notice of preliminary Objection is the written Address of the Defendant which learned counsel, O. O. Okeaya-Inneh, SAN, adopted on the 1st day of April, 2014 date of hearing since the Court was of the view that the Preliminary Objection would need be heard and determined before anything if at all would be done within the main suit.

Mr. Aliyu Umaru, learned counsel for the Plaintiffs/Respondents adopted their Reply to the Preliminary Objection which they filed on 26/3/12.

The Defendant raised a single issue for determination stated as follows:-

Whether the Plaintiffs’ claim in this suit is statute barred and liable to be dismissed or struck out by this Honourable Court as being without jurisdiction to entertain same.

The Plaintiffs/Respondents on their part distilled two issues for determination, thus:-

1. Whether the Defendant is entitled to the Protection afforded by Section 2(a) of the Public Officers’ Protection Act in the circumstances of this case.
2. Whether the action is statute barred by virtue of the provisions of the Limitation Act.

Before proceeding with the arguments for and against the Preliminary Objection, I would want to state some salient portions of the Counter-Affidavit of the Respondents to this Objection deposed to by Friday R. Onoja, legal practitioner of the firm of solicitors for the Respondents. These paragraphs are 3 – 7 of the said Counter-Affidavit:-

3. That I know as a fact that in the pleaded letter dated 7th of August 2007 written to the Hon. Minister of Agriculture of the Federal Republic of Nigeria by the Plaintiffs, Solicitors, the attention of the Defendant was clearly drawn to the fact that as the claims of the plaintiffs are founded on acts of State such claims cannot be statute-barred.
4. That I know as a fact that the Commodity Boards Decree No. 29 of 1977 is now Commodity Boards Act Cap C17 of the Laws of Nigeria 2004, which is still in force and the said Commodity Boards Act does not make any provision for payment of money to the plaintiffs/Respondents.
5. That I know as a fact that the Defendant in this case has no defence to the Plaintiffs’ claims in this Suit.
6. That it is in the interest of justice to dismiss the Preliminary Objection and enter judgment for the Plaintiffs in the substantive Suit as the Defendant has no defence to this action.

The issue as identified by the Defendant/Objector seems to me to point out the Kernel of the dispute in this Preliminary Objection and I am comfortable with it in the determination of this Preliminary Objection. The question thereby raised, is if the plaintiffs’ claim in this suit is statute barred and liable to be struck out with the lack of jurisdiction of this court as a follow up.

Learned counsel for the Objector, Okeaya-Inneh SAN contended that the claim of the plaintiffs is statute barred by virtue of Section 7(1)(e) of the Limitation Act and that following the law as stated in Egbe v Adefarasin (1987) 1 NWLR (Pt.47) 1 it is said that where a party’s action is statute barred, the following legal consequences will ensue:-

a. the party would lose his right of action;

b. the party would lose the right of enforcement;

c. the party would also irretrievably lose the right to judicial relief; and

d. the party would only have an empty cause of action which no court will assist him to enforce.

The learned Senior Counsel stated further that whereas the cause of action upon which the plaintiffs, action is predicated is a letter dated 27th day of July, 1983 and 13th August, 1984 as stated in paragraphs 13 and 14 of the plaintiffs, Statement of Claim, but the Plaintiffs/Respondents instituted this action by way of civil summons on the 22nd February, 2011 and so the action is at variance with Section 7(1)(e) of the Limitation Act.

For the Defendant was submitted that Order 3, Rule 1 of the Supreme Court Rules as amended in 1999 has provided for the use of the Rules of the Federal High Court in the absence of a specific rule of practice and procedure in the Supreme Court Rules. That the situation thereby envisaged by the Rules of this court what should apply is Order 29, Rule 1 of the Federal High Court Rules, 2009. He cited Egbe v Adefarasin (1987) 1 NWLR (Pt.47) 1 wherein what constitutes cause of action was defined. That to determine when the cause of action in this suit arose, paragraphs 13 and 14 of the Statement of Claim have addressed that point. Also, that a look at the endorsement on the Civil Summons would reveal that 28 years had elapsed between the presentation of the cause of action and when the action was instituted. This in the clear purview of the fact that Section 7(1)(e) of the Limitation Act had prescribed that the Plaintiffs should have brought the action within 6 years from the time their cause of action crystallized.

Going on further, Mr. Okeaya-Inneh, SAN, said when an action has become barred by operation of the Limitation Act or Law, the effect is that the cause of action becomes extinguished by operation of law and no longer maintainable in court. He said in the instant case, the cause of action having arisen in 1983 when the Federal Military Government Acknowledged the debt and the action having been brought in 2011, the plaintiffs’ claim had become extinguished by virtue of Section 7(1)(e) of the Limitation Act. That the damage is not averted by the plaintiffs arguing that the cause of action arose sometime in 1978 when they submitted their evaluation report of their assets taken over by the Federal Government which Federal Government subsequently made part payment of same. This is so since Section 37(1) of the Limitation Act had provided that where a right of action has accrued to recover a debt and the person so liable has acknowledged indebtedness, the right of action is deemed to have accrued on and not before the date of the acknowledgement. He urged the court to dismiss the action on account of the operation of Section 7(1)(e) of the Limitation Act.

Mr. Aliyu Umaru, learned counsel for the Plaintiffs/Respondents conceded that the Defendant is a public officer within the meaning of Section 2(a) of the public Officer’s Protection Act but that for the protection to enure to the defendant, performing such public duties and at all times material be acting within the confines of their public authority or outside their statutory or constitutional duty. That, with that principle above stated, in this instance, the plaintiffs contend that the defendant acted outside the scope of their statutory and constitutional duty and so not entitled to the protection offered by Section 2(a) of the Public Officers’ Protection Act. He cited Ibrahim v J.S.C. Kaduna State (1998) 14 NWLR (Pt.584) Page 1; Hassan v Aliyu (2010) 17 NWLR (Pt.1223) 547 at 591.

For the Respondents was submitted that both the originating summons and the statement of claim show that the Defendant failed in their legal or statutory duty to pay the compensation mandated by law and therefore cannot find protection from their wrongful neglect to do a public duty under section 2(a) of the Public Officer’s Protection Act. Also, that Section 2(a) of the Public Officer’s Protection Act does not extend to all classes of action, such as recovery of land, actions founded on simple contracts or for recovery of debt. He referred to N.P.A Construzioni SPA (1974) 1 All NLR (Pt.2) 463; F.G.N. v. Zebra Energy (2002) 18 NWLR (Pt.798) page 162; Osun State Government v. Dalami (Nig.) Ltd. (2007) 9 NWLR (Pt.1038) 606.

Learned counsel for the plaintiffs/respondents submitted further that in the alternative argument that the Limitation Act, 1966 does not apply to disputes between States of the Federation and the Federal Government of Nigeria because of the application of section 4 of the said Limitation Act.

He stated further, that the plaintiffs had through their counsel written demand letters dated 7th August, 2007 and 6th August, 2010 respectively and the applicable legal principle provides that a cause of action for recovery of a debt arises when a demand is made and the completion of the cause of action is when the demand is refused. That in the circumstance prevailing in the case at hand, the cause of action accrued on the 7th August 2010 when the final revised claims of the plaintiffs were demanded and the Defendant failed to make the payment within a reasonable time, thereby resulting in the Plaintiffs’ action concretizing sometime after 7th August, 2010 and so when this action was brought in 2011, the Plaintiffs were within time and so the Limitation Act is inapplicable.

In reply on points of law sequel to the Reply on points of law filed by, O. O. Okeaya-Inneh, SAN, on 3/5/12, learned counsel stated that the plaintiffs anchoring on the doctrine of act of state with regard to the act of the Federal Government in 1977/1978 or even in 1983/1984 in agreeing to pay to the Plaintiffs a certain amount of money as an act of state is misconceived and wrong in law. That the doctrine is one of public international law dealing with sovereignty of State within its own borders which domestic action cannot be questioned by another nation in a court of law. He referred to Wikimedia encyclopaedia and some other United States cases.

Mr. Okeaya-Inneh, SAN, also submitted that the claim by the Plaintiffs in response to the Objection are claims founded on the implementation of Public Policy and so cannot be statute barred is a submission that cannot be sustained as it is one outside the ambit of Section 6(b)(c) of the 1999 Constitution which has provided for the Fundamental Objectives and Directive Principles of State Policy.

The contest before this court which is being played out in the Preliminary Objection raised by the Defendant/Objector and as contended by the Plaintiffs is that the Defence anchors their objection on the Limitation Act Section 7(1)(e) thereof on the ground that the action as initiated by the Plaintiffs is statute barred, same having been brought 28 years after the cause of action accrued. The stance of the Plaintiffs is that they are well within time since their first demand was made on the 7th of August, 2007 and the revised claim made on the 6th August, 2010 and so the Limitation Act does not apply to the facts and circumstances of this case.

The scenario above makes it necessary to go into the definitions of cause of action, its accrual and what follows when brought within a specified period. In that regard therefore, it is to be said that in the consideration of whether an action is caught by the statute of limitation, what is of paramount consideration is the determination of:

(a) the cause of action;

(b) when the cause of action accrued; and

(c) when the action became statute-barred,

To determine the conditions above, what the court would look at are the writ of summons and the statement of claim alleging when the wrong which gave the plaintiff a cause of action was committed and by comparing that date with the date on which the writ of summons was filed. Muhammad v Military Administrator Plateau State (2001) 16 NWLR (Pt.740) 510 at 545 – 546; British Airways Plc v Akinyosoye (1995) 1 NWLR (Pt.374) 722.

The definition that has been followed on cause of action is that cause of action is the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief. Thus, when an action is said to be statute-barred, what it connotes is that the plaintiffs may have an actionable cause of action, but their recourse to judicial remedy is voided. No proceedings could be brought to prosecute the action. Muhammad v Military Administration, Plateau State (2001) 16 NWLR (Pt.740) 510 at 544 – 545; Egbe v Adefarasin (1837) 1 NWLR (Pt.47) 1; Yusuf v C.C.B. Ltd (1994) 7 NWLR (Pt.359) 676.

Going by the definition above and the determination of when the cause of action accrued are to be discerned from the Writ of Summons and the Statement of Claim. For specificity are paragraphs 13 and 14 of the Statement of Claim which claims are thus:-

“13: The Plaintiffs state that in 1983, the Defendant by its letter NO. SCB/MKT/XIII/53 dated 27th July, 1983 accepted to pay N10,305,725.7 (Ten Million, Three Hundred and Five Thousand, Seven Hundred and

Twenty Five Naira, Seven Kobo) in final settlement of the indebtedness to the Northern States Marketing

Board (NSMB) as stated in paragraph 12 of this Statement of Claim.

14. The plaintiffs state that in 1984, the Northern States Marketing Board (NSMB) submitted additional claim to the Federal Military Government relating to more of its movable assets not returned to it consisting of tarpaulin, bags, twine, furniture, vehicles and fittings valued at N13,160,185.46 (Thirteen Million, One Hundred and Sixty Thousand, One Hundred and Eighty Five Thousand Naira and Forty Six Kobo) which claim was never disputed by the Defendant.”

In respect of the limitation law and an action being statute barred, I shall refer to the case of United Bank For Africa Limited v. Michael O’ Abimbolu & Co. (1995) 9 NWLR (Pt.419) 371 (CA) Tanko Muhammad, JCA (as he then was) held:-

Where an action is statute barred, a Plaintiff who might 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. Thus, an action commenced after the expiration of the period within which an action must be brought as stipulated in a statute of limitation is not maintainable. Stated differently, when the statute of limitation in question prescribes a period within which an action must be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Eboigbe v NNPC (1994) 5 NWLR (Pt.347) 649.

The need to state what the general rule is with respect to the ventilation of grievances in a court of law must not be lost sight of. This is because of the principle that where there is a right, there is a remedy, that is to say, where there is a cause of action, there is a remedy. But the legislature has prescribed certain periods of limitation for instituting certain actions.

This is based on public policy which prescribes that there must be an end to litigation and that stale demands should be suppressed for it would be unfair to a person to allow claims to be made upon him after a long period during which he may have lost the evidence previously available to him with which he would rebut such a claim. Therefore, where an action is statute-barred, a plaintiff who would otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the time laid down by limitation law for instituting such an action had elapsed. Muhammad v Military Administrator, Plateau State (2001) 16 NWLR (Pt.740) 510 at 545 per Obadina, JCA; SPDC Ltd v Farah (1995) 3 NWLR (Pt.382) 148.

Having put across the general rule as to when there is an injury which needs redress, it has to be brought to light the fact that such remediation is not unlimited.

A statute of limitation removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute-barred, that is, if such a cause of action is instituted outside the statutory period allowed by such law. Another way of stating the above proposition is that any action that is commenced after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law.

See Ibrahim v Judicial Service Committee Kaduna State (1998) 14 NWLR (Pt. 584) 1; Obiefuna v Okoye (1961) 1 All NLR 357; Egbe v Adefarasin (NO.2) (1985) 1 NWLR (Pt.3) 549; Fadare v A.G., Oyo State (1982) 4 SC 1; Abubakar v Governor of Gombe State (2002) 17 NWLR (Pt.797) 533.

While not arguing against the legal principles on the Statute of Limitation, the point being raised and vehemently too by the Plaintiffs is that the protection that would have enured on the Defendant had been lost, the defendant having acted outside the scope of their office in failing to carry out the lawful duty to pay compensation to the plaintiffs.

Learned counsel for the plaintiffs relied on the cases of Ibrahim v J.S.C Kaduna State (1998) 14 NWLR (Pt.584) 1 and the more recent judgment of this Court in Hassan v Aliyu (2010) 17 NWLR (Pt.1223) 547 at 591.

Indeed, the Court per Onnoghen, JSC, had stated in clear terms in Hassan v Aliyu (supra) 591 thus:-

“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers’ Protection Act.”

I shall quote Section 2(a) of Public Officers’ Protection Act for clarity and thus:-

“2. 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-

Limitation of time:

(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, within three months next after the ceasing thereof.”

The stance of the plaintiffs is two pronged, one that Section 2(a) of the Public Officers protection Act would have applied against the Plaintiffs’ claims if the Defendant had acted within the scope of its official duties and so the three months period for such actions would not affect the plaintiffs and on the other leg that their cause of action arose in 2007 when the last demand from the Defendant was made and so plaintiffs were within the 6 years Limitation Period in bringing the action on 22nd February, 2011. The contention of the Plaintiffs ouster of Section 2(a) Public Officers protection Act is not substantiated and how that Law come in focus of what is on ground. The Public Officers Protection Act is not relevant for our purpose here.

On the other hand, the Objector/Defendant contends that the cause of action crystallized on 27th July, 1983 when the Federal Military Government or the Defendant acknowledged the debt and so well over the 6 years permissible in initiating the action.

Taking the two contending positions in view and juxtaposing them with the positions of Section 37(1) of the Limitation Act to see what is in reality the prevailing situation. That section and subsection stipulate as follows:-

“(1) Where –

(a) a right of action has accrued to recover a debt: and

(b) the person liable therefore has acknowledged the debt, the right of action shall be deemed to have accrued on and not before the date of the acknowledgement.”

It is clear from the above stated statutory provision of the Limitation Law that the cause of action had come full blown by the 27th July 1983 when the Defendant acknowledged the indebtedness. Therefore, the subsequent correspondences which climaxed on 6th August, 2010 including that of 7th August, 2007 would not add to or subtract from the event which had already taken place, that is, the crystallization of the cause of action which took place on 27th July 1983, This happening would bring about the attendant fall out which is the operation of Section 7(1)(e) of the Limitation Act. Therefore, what had been restated in Egbe v Adefarasin (1987) 1 NWLR (Pt.47) 1 would apply and these are:-

“where a party’s action is statute-barred, the following legal consequences will follow:-

a. the party would lose his right of action;

b. the party would lose the right of enforcement;

c. the party would also irretrievably lose the right to judicial relief;

d. the party would only have an empty cause of action which no court will assist him to enforce.”

See also Daudu v University of Agriculture, Makurdi & 4 Ors (2002) 17 NWLR (Pt.796) 363 at 384 – 385.

For effect, I shall cite the provisions of the said Section 7 of the Limitation Act and it is as follows:-

“7(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued –

(e) actions to recover a sum recoverable by virtue of an enactment other than –

(i) a penalty or forfeiture or sum by way of penalty or forfeiture;

(ii) a sum due to a registered company by a member thereof under its articles of association,

(iii) An amount recoverable against concurrent wrong doers under a civil liability enactment for the time being in force relating to concurrent wrong doer.”

In the light of the foregoing, it is to be said without equivocation that the cause of action in this matter arose in 1983 precisely, 27th July, thereof, when the Defendant acknowledged the debt and this action commenced on the 22nd of February 2011, was an action in futility the cause of action having expired after six years of its accrual computed from 27th July 1983. Another way of saying the same thing is that this action as presently constituted and initiated on 22nd February 2011 is statute barred and therefore, the jurisdiction of this court has been effectively ousted by operation of Section 7(1)(e) Limitation Act Cap 522 Laws of the Federation of Nigeria; 1990. The ensuing conclusion is that this suit lacks competence and is hereby struck out.

I make no order as to costs.

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SC.41/2011