Cil Risk & Asset Management Ltd V. Ekiti State Govt. & Ors (2020)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The Appellant’s statutory Right of Occupancy (R of O), the grant of which was evidenced by the Certificate of Occupancy (C of O) No. DG 00104/2007 registered in the Lands Registry office, Ado Ekiti, Ekiti State, was revoked and the revocation was published in the Ekiti State Government (1st Respondent’s) official Gazette No. 1, Vol. 20 of 20th October, 2016. The Appellant, as the Plaintiff Ekiti at State High Court, sitting at Ado Ekiti, challenged the revocation contending, inter alia, that the revocation was illegal, unconstitutional and a nullity and that it be declared that he remained vested with the R of O over the disputed land – the same having neither been extinguished nor in anyway affected in law by the purported revocation. He also sought a declaration that the subsequent re-allocation of the disputed plot of land to the 4th Respondent, who allegedly actively instigated the revocation of the Appellant’s R of O, was illegal, unlawful and a nullity. The Appellant further sought a perpetual injunctive order to restrain the 1st – 3rd Defendants/Respondents from issuing any C of O to the 4th
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Respondent and/or restraining the 4th Defendant/Respondent from howsoever interfering with his structures built on the land. In the ALTERNATIVE claims, the Appellant sought a declaration that he was in no way in default or breach of any term, condition or obligation in the C of O for the grant of the R of O.
The Appellant’s Statement of Claim at the trial Court was specially endorsed on the writ of summons taken out on 16th January, 2017. The revocation the Appellant complained of was conveyed in the official Gazette published on 20th October, 2016.
The Respondents, as Defendants, had by way of demurrer, contrary to Order 22 Rules 1 & 2 of the Ekiti State High Court (Civil Procedure) Rules, filed Notices of Preliminary Objection on 1st February, 2017 supported by affidavits contending that the trial High Court lacked “jurisdiction to entertain this action and pray(s) that the suit be struck out in limine”. The 1st – 3rd Respondents filed a joint Notice of preliminary objection, independent of the 4th Respondent. The 1st – 3rd Respondents’ Notice of Preliminary Objection, more exhaustive than that of the 4th Respondent’s Notice, was predicated on the
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grounds that the suit –
i. was “statute barred having been brought outside of the three months period stipulated by Section 2 of the Public Officers Protection Act as the 1st to 3rd Defendants/Appellants issued the Claimant with notice of revocation via letter dated 16th December, 2014 on the ground that the Claimant breached Paragraph 4 of the Certificate of Occupancy.
ii. disclosed no reasonable cause of action.
In the supporting affidavit, particularly paragraphs 6, 7, 8, 9 and 10 thereof, the 1st – 3rd Respondents founded justification for their revoking the Appellant’s R of O on the grounds that the Appellant had serially breached and violated the terms and conditions in the C of O under which the R of O was granted; that the Appellant, instead of paying ground rents, “appealed for waiver which was not granted” and was thereby in breach of paragraph 12(ii) of the C of O – Exhibit C. They further alleged that the Appellant was in breach of paragraph 4 of the C of O that enjoined the Appellant to erect and complete buildings in accordance with the approved building plans within two years. They admitted that the Appellant had merely built a
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perimeter fence round the disputed land. The Appellant vehemently opposed the Notices of Preliminary Objections.
In a lengthy Ruling (of 53 pages) on the two Notices of Preliminary Objection, the learned trial Judge (C. L Akintayo, J) delivered on 5th June, 2017, sustained the preliminary Objection on the grounds that the suit of the Appellant, by virtue of Section 2(a) of Public Officers Protection Act (POPA), was statute barred having not been filed within 3 months after the revocation and further that the Appellant had not disclosed any reasonable cause of action in his statement of claim. His appeal against the decision was unsuccessful – hence this further appeal. The Appellant has formulated 7 issues for the determination of the appeal. My Lords, in my firm view, two major issues stand out for the determination of this appeal, that is – whether by virtue of Section 2(a) of the Public Officers Protection Act the suit of the Appellant at the trial Court was statute barred; and whether the Appellant disclosed, in the Statement of Claim, any reasonable cause of action?
The Appellant, under his issue 3, contends that the suit, by operation of POPA,
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was not statute barred. The Respondents postulate the contrary. The 1st – 3rd Respondents, in paragraph 4.75 of their Brief, insist “that the action of the Appellant is caught by Section 2(a) of the Public Officers Protection Act” having been instituted outside the 3 months reckoned from 22nd December, 2014 when the cause of Action accrued. The 4th Respondent maintains his position, concurrently affirmed by the two Courts below, that “the Appellant’s action was statute barred by the operation of the Public Officers Protection Act”.
The Respondents appear to me to have taken shelter under Section 2 (a) of the Public Officers Protection Act, Cap P41, 2004 LFN (updated up to the 31st day of December, 2010). This Act enacted pursuant to Item 53 of the Exclusive Legislative List and Section 4(2) & (3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, applies only to protect public officers in the “public service of the Federation”. It has no general application such as to apply or offer protection to public officers in the service of Ekiti State or any other State in the Federal Republic of Nigeria. The public Service of Ekiti State is a
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matter within the residual list, that is matter neither in the Exclusive Legislative List set out in Part l of the Second Schedule to the Constitution nor in the Concurrent Legislative List set out in the First Column of the Second Schedule to the Constitution. The public service of Ekiti State, being a residual matter, only the Ekiti State House of Assembly, by dint of Section 4(6) & (7) of the Constitution,1999, as amended, to the exclusion of the National Assembly or any other State House of Assembly, can constitutionally legislate on it.
This basic Constitutional Law eluded the Respondents and the two Courts below. The resort to the Federal statute, the Public officers Protection Act, to scrounge a statutory defence for officers in Ekiti State public service is no doubt ultra vires.
This apart, granted Public Officers Protection Act were invokable by officers in the public service of Ekiti State, the two Courts below misapplied the scope of the Act to the peculiar facts of this case.
The Appellant had consistently submitted to the two Courts below that the provision of Section 2(a) of the Public Officers Protection Act is not applicable to
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the instant case, in that the action was founded on recovery of land and/or breach of contract. This Court had, in A. G. RIVERS STATE V. A. G. BAYELSA STATE (2013) 3 NWLR (pt. 1340) 123 at 150; MULIMA V. USMAN (2014) 16 NWLR (pt. 1432) 160 at 212, held that “the protection afforded public officers under the public Officers protection Act does not apply in cases of recovery of land”.
The second limb of the Appellant’s submission on the scope of Section 2(a) of the Public Officers Protection Act is that the provision does not apply to cases founded on contract, or breach of contract. The Appellant is correct. Numerous judicial dicta of this Court support this submission. OSUN STATE GOVERNMENT V. DALAMI (NIG) LTD (2007) 9 NWLR (pt. 1038) 66 is a case founded on breach of lease agreement. The respondent sued the Osun State Government seeking a declaration that the latter’s purported termination of the Management Lease Agreement was wrongful. The respondent sought a further order nullifying or setting aside the purported termination, and an order for specific performance. Osun State Government pleaded limitation afforded by the Public Officers Protection
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Act. This Court unanimously rejected the plea and held that Section 2 of the Public Officers Protection Act does not apply in cases for recovery of land or breach of contract. It cited, with approval, previous decisions on the point in SALAKO V. L.E.D.B (1953) 20 NLR 159; NPA V. CONSTRUZIONI GENRALI F.C.S (1974) 9 NSCC 622; (1969) 1 ALL NLR (pt. 2) 463; BANKOLE V. NBL (1969) NCLR 385 at 390.
It is very clear from the ipixit dexit of the Respondents, at pages 150 – 160 and 191 – 192 of the Record, in their respective preliminary objections, that they justified the revocation of the Appellant’s R. of O on the fact that the Appellant was in breach of the contract terms, conditions and obligations contained in the C of O. They accordingly invoked the provision of Section 2(a)of the Public Officers Protection Act, being a special defence, as having extinguished the Appellant’s right to enforce the cause of action founded on the said breach of contract. It is apparent also from paragraphs 2.3; 4.43; 4.58; 4.91; 4.100 – 106, and 4.109 of the 1st – 3rd Respondents Brief that they had, contrary to established judicial precedents, invoked Section 2(a) Public Officers Protection Act
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as a statutory bar to Appellant’s cause of action premised on breach of the contractual terms, condition or obligations in the Certificate of Occupancy.
In my firm view, my Lords, the two Courts below were in error to have acted on Section 2(a) Public Officers Protection Act to strike out the suit of the Appellant for being statute barred. The scope of the Act does not extend to actions founded on recovery of land or breach of contract. The two Courts below had definitely misconceived the scope and spirit of the Act. This issue is resolved in favour of the Appellant against the Respondents.
The Second reason given by the trial Court for striking out the Appellant’s suit was that the statement of claim did not disclose any reasonable cause of action. The lower Court subsequently affirmed this obviously perverse finding of fact. The contention that the Appellant, as the claimant, did not disclose any reasonable cause of action in his statement of claim was largely instrumented by the erroneous finding that the suit was statute barred. It is of course true, and the law is, that where an action is statute barred the effect is that the
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cause of action is or becomes extinct by operation and it can no longer be maintained in the law Court: SOSAN V. ADEMUYIWA (1986) 3 NWLR (pt.27) 241. Consequently, a cause of action extinguished or statute barred cannot be a reasonable cause of action.
The appellant had in the statement of claim alleged that the revocation of his R of O, actively instigated maliciously by the 4th Defendant/Respondent, was wrongful, baseless and in bad faith. The Respondents admit that the right of occupancy over the disputed parcel of land vested originally in the Appellant and that it was revoked. They joined issues with the Appellant in their supporting affidavit at pages 159 – 160 of the Record where they averred that the disputed plot was allocated to the Appellant upon certain conditions including his perimeter fencing and developing the land in accordance with the approved building plans within 2 years of the issuance of the C of O; that the Appellant only fenced the plot and had not built or developed it in terms of the purpose of the grant; that the Appellant, instead of paying his ground rents as and when due, was asking for waiver. In the statement of claim, the
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Appellant had alleged that the refusal of the 1st – 3rd Respondents to properly compute the ground rents was a mere fait accompli for the malicious revocation of the R of O; that the ulterior purpose of the revocation was to satisfy the avarice of his neighbour, the 4th Respondent, who persistently actuated/instigated the revocation from which he benefited by the subsequent re-allocation of the same plot. The Appellant further averred, in the Statement of Claim, that the 4th Respondent, who had initially encroached on the land and reduced its size, was told to buy the land for N750,000,000.00 and that instead of making formal offer to buy or pay for the land chose rather, mala fide, to instigate the 1st – 3rd Respondents to revoke the R of O vested in the Appellant by petition writing. That the Governor of Ekiti State, the 1st Respondent, pandered to the instigation and petitions of the 4th Respondent by unilaterally, albeit maliciously and arbitrarily, declaring the area of the disputed land “Education Free Zone”, only thereafter to re-allocate the disputed plot to the 4th Respondent.
In the face of the myriad allegations or complaints of the Appellant,
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as can be seen from the Statement of Claim particularly paragraphs 7, 8, 9, 11, 12, 13, 14, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32 thereof the learned trial Judge found, and the lower Court affirmed, that the Statement of Claim disclosed no reasonable cause of action. I think and I hold the firm view, that the two Courts below were wrong in holding that the Appellant did not disclose any reasonable cause of action.
A cause of action simply means the fact (not evidence) that will be necessary for the plaintiff to prove, if traversed, to support his right to judgment: THE SUPREME COURT PRACTICE (THE WHITE BOOK – English) 1991, vol. 1, pages 172 – 173 paragraph 15/1/23: states that “A cause of action” was held to mean “the subject-matter of grievance founding the action”: O’KEEFE V. WALSH (1903) 2, Ir. R.681 at 718; ANNS V. MERTON LONDON BOROUGH COUNCIL (1978) 2 ALL E.R. 492. In other words, it is the reason for the grievance and the complaint to the Court for redress. It includes every material fact the plaintiff must, or shall, prove to enable him succeed against the defendant: AFOLAYAN V. OGUNRINDE & ORS {1990) 2 SCNJ 62 at 70.
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In other words, as Obaseki, JSC had put it, in THOMAS V. OLUFOSOYE (1986) 1 NWLR {pt. 18) 669, the cause of action is the factual situation, the existence of which entitles one to obtain from the Court a remedy against another person. See also Lord Esher, M. R in READ V. BROWN (1998) 2 QBD 128 at 131 & 151- cited with approval by this Court in SPDC OF NIG LTD V. XM (2005) 7 SC (pt. 2) 189; (2006) 16 NWLR (pt. 1004) 27.
For so long as the Statement of Claim discloses the cause the plaintiff has to complain to the Court against the defendant for violation, infraction or imposition of undue burden on his legal rights or obligations, or raises some question fit to be decided by the Court or the Judge: a reasonable cause is disclosed thereby: YUSUF & ORS V. AKINDIPE & ORS (2000) 8 NWLR (pt. 669) 376 (SC). In my view, a reasonable cause of action is disclosed once the Statement of Claim sets out the plaintiff’s legal right qua the defendant’s obligations towards him, and goes further to set out the facts constituting the infraction of the plaintiffs’ legal rights or failure of the defendant to fulfill his obligations towards the plaintiff:
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RINCO CONSTRUCTION CO LTD V. VEEPEE IND. LTD & ANOR (2005) 9 NWLR (pt. 929). Once the Statement of Claim discloses a reasonable chance that the plaintiff will succeed, if not traversed, on his allegations as pleaded; a reasonable cause of action will be said to have been disclosed. That is the substance of the English decision in DRUMMOND-JACOKSON V. BRITISH MEDICAL ASSOCIATION (1970) 1 WLR 688; (1970) 1 ALL E. R. 1094 (CA) cited with approval in THOMAS & ORS V. OLUFOSOYE (supra). It is not material at this stage whether the case of the plaintiff is strong or weak. The only thing important at this stage is whether the Court can decipher from the Statement of Claim if there is either a prima facie triable case or issue or there is a reasonable chance of success if no defence were offered.
It is clear from the Notices of Preliminary Objection that the Respondents made efforts, at this interlocutory stage, to join issues with the Appellant on the salient allegations against them. They also raised special defences in law, without filing defence by way of demurer, to the claims of the Appellant. It does not lie in their mouths to say that the Statement of
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Claim, in the circumstances, does not disclose any reasonable cause of action against them. The concurrent finding of fact that the Statement of Claim discloses no reasonable cause of action is perverse, and it is hereby set aside. I hereby resolve this issue against the Respondents.
The Preliminary Objections argued at the trial Court are hereby overruled. The concurrent decisions of the two Courts below sustaining the preliminary objections are hereby set aside.
The appeal succeeds. The decision of the trial Court, by which the suit of the Appellant was struck out is hereby set aside. The suit is hereby restored on the cause List of the trial Court to be heard and determined by a Judge of the said Court other than C.I. Akintayo, J. This order shall forthwith be served on the Chief Judge of Ekiti State.
The Appellant is entitled to costs having from the trial Court through the lower Court to this Court thrown away costs by the needless and ill-thought out Notices of Preliminary Objection. Each set of Respondents, that is the 1st – 3rd Respondents on one hand and the 4th Respondent on the other, shall pay costs assessed at N600,00.00 to the
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Appellant.
Appeal allowed.
SC.990/2018
