F.O. Obayiuwana V. Minister of Federal Capital Territory & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, JCA
This Appeal was filed against the decision of the High Court of the Federal Capital Territory delivered by Hon. Justice S.D. Sage on the 19th day of June 2006 dismissing the case of the plaintiff whose certificate of occupancy was revoked as statute barred.
Appellant appealed to this court by Notice of Appeal filed on the 5/07/06 containing 3 grounds of appeal and an Amended Notice of Appeal with the leave of court granted on 7th November, 2006 containing five grounds of appeal filed on 14th November, 2006.
FACTS
The Appellant, then the Plaintiff filed this suit in the federal High Court, Abuja against the Respondents (then Defendants) on the 29/9/97 claiming the following reliefs:-
- Against the 1st and 2nd Defendants a declaration that the purported revocation of his right of occupancy NO:ABU/FCT/BD.688 over the land measuring 865 M2 more particularly described and delineated as plot N0.337 at Wuse A7 via the Notice of revocation of Right of Occupancy NO:ABU/FCT/BD.688 dated the 9th June, 1997, on the grounds of inability to develop when the plaintiff’s building plan was yet to be approved by the 2nd Defendant is wrongful, illegal, null and void.
- A declaration that the Right of Occupancy granted to the 3rd Defendant by 1st and 2nd Defendants in and over the said land described in paragraph 1 above is illegal, null and void in that same was issued to 3rd Defendant without properly revoking the earlier certificate of occupancy issued to the plaintiff and without first serving the plaintiff personally a notice of revocation and or without a Formal deed of revocation issued to him.
- An order of perpetual injunctions restraining the 1st and 2nd Defendants from interfering with the quiet possession of the said land by the plaintiff or ejecting the plaintiff, his servants, or agents therefrom or reallocating and/or granting another statutory Right of Occupancy to the said land to any other person whatsoever or in any other way interfering with the rights of the plaintiff as owners of the said piece of land.
- Against the 3rd Defendant an order of perpetual injunction restraining her from entering upon, building on, storing construction materials, excavating or in any other manner trespassing on the land described in paragraph 1 or carrying on any construction work thereat (sic) or leasing, mortgaging, assigning or in any other manner purporting to convey any interest in the land aforesaid to any person.
- A declaration that under the principle of ”quicquid plantatur solo, solo cedit” the building now constructed by the 3rd defendant on the said plot of land that is plot 337 at Wuse A7, Abuja is the property of the Plaintiff.
Pleadings were exchanged and the matter went for trial at the Federal High Court thereof presided over by Hon. Justice Chikere. In the course of the proceedings, it was discovered that issues arising will be better disposed of by the High Court of the Federal Capital Territory, consequent upon which the case was transferred to the High Court of FCT, presided over by Hon. Justice Sidi Sage.
At the preliminary stage of the case, the counsel to the 1st and 2nd Respondents raised a preliminary objection on the ground that the suit is statute barred by the operation of Section 2(a) of the Public Officer’s Protection Act Cap P.41 LFN, 2004. Arguments were canvassed on the issue and the High Court ruled, dismissing the case as statute barred, under the Public Officer’s Protection Act Section 2(a) on the 19th June, 2006.
On the 4/11/08 when hearing of the appeal, Mr. Okoye, learned counsel for the Appellant adopted Appellants brief which was filed on 14/11/06 and deemed filed on 3/4/07. In the brief the Appellant formulated four (4) issues for determination which are as follows:-
- Whether the trial court was correct in his ruling when he held that ”it is only the purpose of allocation if found not to be for public purpose that can serve as an exception to the application of Section 2(a) of the Public Officers Protection Act in Land Matters”
- Whether the learned trial Judge was right when he held that contractual relationship between Applicants and Plaintiff/Respondent was not canvassed and reason for revocation of land was not put in issue at the stage of preliminary objection.
- Whether the learned trial court applied the right principle of law, when he held that the act of revocation was completed when the letter of revocation was dispatched or posted.
- Whether the learned trial Judge was right when he held that 17/06/97 to 29/09/97 was more than a period of three months allowed by a statute for filing an action against Public Officer exercising public duties.
Mr. Obiamalu learned counsel for 1st and 2nd Respondents adopted their Brief filed and deemed filed on 22/11/07 and in it stated they were not raising any new issues apart from those of the Appellant which they would answer to.
The 3rd Respondent represented by Mr. Ajoku adopted their Brief filed on 3/7/08 and deemed filed on 7/7/08. 3rd Respondent also hung onto the issues as framed by the Appellant in arguing against the appeal.
The route therefore being cut out with ease I shall go into the issues as framed to determine what really is the right position in this appeal.
ISSUE NO.1
Whether the trial court was correct in his ruling when he held that “it is only the purpose of allocation if found not to be for public purpose that can serve as an exception to the application of the Public Officers protection Act in land matters”.
Learned counsel for the Appellant stated that section 2(a) of the Public Officers Protection Act in language relates to the realm of tort and should not be extended to contract and land matters to which the Act does not apply. He cited FGN v. Zebra Energy Ltd (2002) 18 NWLR (pt. 798) 162 at 175.
Mr. Okoye for the Appellant said that this suit emanates from a purported revocation of land, Certificate of Occupancy issued to the Appellant by the FCDA i.e. the 2nd Respondent and its purported reallocation to the 3rd Respondent and so the issues arose from a contractual obligation, offer of land and its acceptance and presently its purported revocation. He cited Ibrahim v. JSC (199B) 14 NWLR (pt. 584) 1; FGN v. Zebra Energy (2002) 18 NWLR (pt. 798) 162; Section 75 (j) Evidence Act; Section 97 of the Port Act; NPA v. Construzioni Fasura SPA (1974) 1 All NLR (pt. 2) 468; Salako v. LEDB &. anor 20 NLR 169; Attorney-General Abia State v. Attorney-General Federation (2005) 12 NWLR (pt. 940) 452 at 466.
Learned counsel for the Appellant further submitted that statutes which take away the right of access to court should not be handled with kid gloves or pampered, rather they should be scrutinized methodically and strictly. He cited Oduko v. Government of Ebonyi State (2004) 13 NWLR (pt. 891) 487.
Also those courts are enjoined to guard their jurisdiction strictly and not give it up for the mere asking.
For the 1st and 2nd Respondents it was contended that the Appellant’s over reliance on the case of FGN v. Zebra Energy Ltd (supra) which was purely based on specific contract misled the Appellant into believing that the acts giving rise to this suit were contractual. Mr. Obiamalu for 1st and 2nd Respondents stated that 1st and 2nd Respondent’s exercised the powers conferred on them by Sections 297(2) of the 1999 Constitution and 5(1) & 52 of the Land Use Act and 1 (3), 4 & 18 of the FCT Act by performing the acts giving rise to this suit.
Learned counsel submitted that any action as contained in Section 2(a) Public Officers Protection Act is one arising out of any act done in pursuance or execution of any Act or law or of any Public Duty undertaken by the Defendants or its staff. He referred to Umukoro v. NPA (1997) 4 NWLR (pt. 502) 656; Odedina v. NPA (2004) 7 NWLR (pt. 872) 230 at 237; The Statement of Claim; NPA Plc v. Lotus Plastics Ltd (2005) 19 NWLR (pt. 959) 158 at 188; Ambode v. Ministry of Foreign Affairs (2004) 14 NWLR (pt. 894) 506 at 523.
Mr. Obiamalu for the 1st and 2nd Respondents stated that an appraisal of the Plaintiffs/Appellant’s statement of claim will show that no contract was pleaded and none was proved to have been entered into between the parties in respect of the transaction giving rise to this suit. He cited NPA Plc v. Lotus Plastics Ltd (supra). That the issue in this suit being contractual or a land matter as argued by the Appellant ought not to have arisen as reliefs claimed in the suit are essentially declaratory. He referred to Captain Hon. Otiki & anor v. Alhaji Momoh Bajehson in suit NO: CA/A/90/2000 per Abdullahi JCA (unreported judgment of Court of Appeal on 15/7/05).
For the 3rd Respondent it was submitted that recovery of land or revocation of land are different in meaning and connotation. That while recovery of land is the restoration or vindication of a right existing in a person, by the formal judgment or decree of a competent court at his instance or suit, while recovery of land is the withdrawal or recall of some power, authority, or thing granted or a destroying or making void of offer of land. He cited Blacks Law Dictionary, centennial Edition 1990 pages 1276 and 1321. That the act of the Minister in this respect is in the realm of tort and not of contract because the duty imposed on the Minister which he invoked arose by the operation of law and not by mere agreement of the parties. He stated that the appellant and the 1st and 2nd Respondents did not agree on the terms but the terms were imposed by the Land Use Act.
Part of the judgment of the court below germane to this issue on appeal is as follows:
”In the present application, the purpose of the allocation by 1st and 2nd defendant to 3rd defendant was never canvassed… It is only the purpose of allocation, if found not for public purpose can serve as an exception to the application of the Public Officers Protection Act in Land Matters. Learned counsel’s submission in this regard therefore fails. It has also been decided that an action for breach of contract does not fall within the provisions of Public Officers Protection Act. The issue of contractual relationship between applicants and plaintiff/Respondent was never canvassed and whether revoking and allocating to 3rd defendant the purpose was not put in issue and decided”.
The question in issue here seems to me straight forward and that is, that while the Appellant is of the view that the trial Judge ought not to have applied the Public Officers Protection Act Section 2 to declare the action statute barred since in that same frame of mind the dispute is one of contract to which that Act does not apply. That the trial Judge ought not to have applied the Public Officers Protection Act Section 2 to declare the action statute barred since in that same frame of mind the dispute is one of contract to which that Public Officers Protection Act does not apply to. The Respondents on the other hand took a line of argument that the posture is wrong as the matter in issue arose out of execution of a public duty of the 1st Respondent and squarely located both in tort and the involvement of the Public Officers Protection Act and therefore the court below decided properly.
Those opposing views which in summary translate to whether or not the jurisdiction of the trial court was ousted on account of the suit being statute barred by operation of the Public Officers Protection Act. It is for that, that there calls to attention the need for the court to be circumspect in consideration of the question of the ouster of jurisdiction. It has to examine carefully the exhibits so as to find out whether in fact the jurisdiction of the court has been ousted. In other words, the court will have to examine whether the act or matter or thing done or purported to be done was properly done under the enabling statute. The court must ensure that its jurisdiction is not ousted to perpetrate or let in fraud. It is when all these aspects are ascertained and found to be positively in order and both the acts and things done under the statute or pursuant to it are properly done and the provision of the statute strictly and scrupulously complied with will the ouster clause in the provisions of the statute come into play. See Fabiyi JCA in Oduko v. Government of Ebonyi State (2004) 13 NWLR (pt. 891) 487 at 499 – 500; Madike v. IGP (1992) 3 NWLR (pt. 227) 70; Katto v. Central Bank of Nigeria (1991) 9 NWLR (pt. 214) 126.
I would want to further consider certain aspects or facts of a limitation law, such as the Public Officers’ Protection Act within the con of this appeal and in doing so would refer to the case of:
Chigbu v. Tonimas (Nig) Ltd (2006) 9 NWLR (pt. 984) 189 where it was held as follows:-
- A limitation law is procedural, setting out clearly a time frame within which an action must be filed. Unlike substantive law it is retrospective in nature and such statutes on an all-important subject must be read as a whole. As such, whether specifically stated or not in such a statute, it must be read retroactively.
- Statutes of limitation only take away the right of action from a party without destroying that right since it can be enforced in other ways, for example by exercise of a right of lien. Limitation laws are matters of practice and procedure. They are not aspects of the substantive law.
- The purport of law on limitation of actions is to obviate the inconvenience and embarrassment to defendants whose witnesses, be they members of staff or people having dealings with them, may no longer be available.
Having the Act (Public Officers’ Protection Act) in contemplation within the confines of the prevailing circumstances it is easy to agree with learned counsel for 1st and 2nd Respondents that the act of the 1st Respondent was in the execution of a public duty and covered by the Public Officers Protection Act and raising the issue of whether or not there was a contractual situation which would render that Act inapplicable moot and it is for that reason that citing the case of FGN v. Zebra Energy Ltd (2002) 18 NWLR(pt. 798) 162 would not avail the Appellant. This is so because FGN v. Zebra Energy Ltd (supra) was founded in contract to which the proper decision was given thereby which is certainly not the case here. Also not coming into play is the fact that it was not a matter between the parties in the court below including the pleadings that the revocation or reallocation was for public purpose to which the exception to the Public Officers Protection Act would have been invoked.
Section 2(a) of the Public Officers Protection Act which provides that an action, prosecution or proceeding shall not lie or be instituted against any person for an act done in pursuance or execution or intended execution, of any act or law or of any public duty or authority, or any alleged neglect or default thereof, unless it is commenced within three months next after the act, neglect or default complained of does not apply to cases of recovery of land, breach of contract, claim for work and labour done. Salako v. LEDR & anor (1953) 20 NLR 169; Judicial Service Commission v. Alaka (1982) 8 – 10 CA 42; Alapiti v. Governor of Rivers State (1991) 8 NWLR (pt. 211) 575; Nigerian Ports Authority v. Construzioni Generali F.C.S. &. anor (1974) 12 SC 81; Oduko v. Government of Ebonyi State (2004) 13 NWLR (pt. 891) 487.
That jurisdictional ousting provision of Section 2(a) of the Public Officers Protection Act applies in this instance and nothing has brought into effect those exceptions which would have caused its non-application. This issue is answered in favour of the Respondents
ISSUE NO.2
Whether the learned trial Judge was right when he held that the contractual relationship between Applicants and Plaintiff/Respondent was not canvassed and reason for revocation of land was not put in issue at the stage of the preliminary objection.
Mr. Okoye of counsel for the Appellant contended that at the stage of preliminary objection in a suit only the writ and statement of claim, if filed that determines the cause of action. He cited Arjay Ltd v. A.M.S. Ltd (2003) 7 NWLR (pt. 820) 601.
Learned counsel said the view of the trial court that the Public Officers Protection Act applies to contract or not was not canvassed before him, is erroneous.
Mr. Obiamalu for 1st and 2nd Respondents submitted that the acts giving rise to this suit were exercised by the 1st and 2nd Respondents pursuant to Sections 5(1) (a) and 28 of the Land Use Act and therefore liable to be protected by Section 2(a) Public Officers Protection Act. That to exempt cases of revocation of land from the application of the Public Officers Protection Act is to defeat or restrict the manifestion of the legislature’s intention. He cited Ekunola v. CBN (2006) 14 NWLR (pt. 1000) 292 at 324; Sekoni v. UTC (Nig) PLC (2006) 8 NWLR (pt. 982) 287; Egbe v. Adefarasin (1985) 1 NWLR (pt. 474) 513 at 529.
That once it is established as in this case that the subject matter of a suit arose out of the exercise by the Defendant of a public duty or enactment, the Public Officers Protection Act shall apply and the issue of whether or not the suit is for recovery of land, contract or revocation becomes Otiose because to do otherwise is to defeat the intendment of the law makers. He cited Chigbu v. Tonimas (Nig) Ltd (2006) 9 NWLR (pt. 984) 89 at 210; Ekeogu v. Ahiri (1990) 1 NWLR (pt. 126) 345 at 353.
Mr. Ajoku for the 3rd Respondent argued along the same lines as counsel for 1st and 2nd Respondent.
The answer to the issue raised here would appear to have been given in the Issue NO 1 consideration but for a fuller appreciation of what is being asked here it would be necessary to restate that if a statute encroaches on private rights, the courts must insist upon strict and rigid adherence to the formalities laid down by the statute and non-compliance with the procedure laid down by the enabling statute in respect of the compulsory acquisition of a person’s property renders such acquisition invalid as is being suggested in the case at hand. See Obikoya & Sons Ltd v. Governor of Lagos State (1987) 1 NWLR (pt. 50) 385.
In answer therefore it is correct as the learned trial Judge held that the contractual relationship between the parties was not brought in for the consideration of the court at the preliminary objection stage nor was the reason for the revocation canvassed. There is therefore the need for the warning that extraneous considerations to which the present arguments of appellant fall into should not be brought into the interpretation of the certificate of Occupancy he held and which was revoked by another document, all of which had operative words in them which were clear and free from ambiguity and should be given their simple and ordinary meaning. I rely on Ekunola v. CBN (2006) 14 NWLR (pt. 1000) 292; M.F. Kert (W.A.) Ltd v. Martchem Industries limited (2000) 8 NWLR (pt. 669) 459; UBN Ltd v. Ozigi (1994) 3 NWLR (pt. 333) 385.
ISSUE NO 3
Whether the learned trial court applied the right principles of law, when he held that the act of revocation was completed when the letter of revocation was dispatched or posted.
Learned counsel for the Appellant stated that the law is that acceptance of an offer in a contract offered by post, comes to effect at the time of posting or dispatch, while the revocation of contract by post is valid and binding only on the receipt of the notice or letter of revocation, this concurs with the law and common sense. That it will be injustice, if a party to a contract is allowed to wallow in ignorance and incur liabilities while unknown to him the contract has been revoked. That a holder of a statutory right of occupancy must be heard before the right is revoked as this is a constitutional right and so the notice of revocation must have been received by the person affected by it. Obikoya v. Governor of Lagos State (1987) 1 NWLR (pt. 50) 385; Section 28 of the Land Use Act.
Mr. Okoye said that the Public Officers Protection Act can only protect a public officer only where he follows the dictates of the Act in question and not when he deviated from same. He cited Abubakar v. Governor of Gombe State (2002) 17 NWLR (pt. 797) 533 at 551.
Mr. Okoye further stated that in determining the cause of action, only the statement of claim and/or the writ of summons should be relied upon by the court and the trial court ought to rely on it even on its own. That in this instance the cause of action arose when the letter of revocation of the Appellant’s certificate of occupancy was received by the Appellant by post which was on the 17/07/97 and not on the 17/06/97 when the letter was dispatched or posted. He cited Prof. Sagay his book Nigeria Law of Contract Sections 28(7) and 544 of the land Use Act; LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (pt. 50) 413 at 420.
For the Appellant it was also contended that if a law or statute encroaches on private rights, the courts must insist upon strict and rigid adherence to the formalities laid down by the statute and that Section 28 of the Land Use Act has provided that the Notice of Revocation must be served personally on the party to which it relates. He cited Obikoya v. Governor of Lagos State (1987) 1 NWLR (pt. 50) 385 at 389 and Section 36 of the 1999 Constitution. That it is instructive that the rights of the plaintiff/Appellant on the land was determined by a letter of revocation in transit by post and even before it was received, his rights on the property had been re-allocated to the 3rd defendant/Respondent. He referred to Section 28(7) of the Land Use Act.
Mr. Obiamalu for the 1st and 2nd Respondent disagrees urging that by the wordings of Section 44(c) of the Land Use Act revocation takes effect upon the posting of the notice by pre-paid registered post. He referred to Nigerian Commercial Law, Africana – Fep Publishers limited 1992 by M.C. Okany pp 326 – 330.
He stated that the taking effect of the Notice of Revocation upon receipt as provided in Section 28(7) of the Land Use Act is with regard to personal service under Section 44(a) of the land Use Act, as Section 44(c) did not envisage that revocation shall be dependent upon receipt of the notice but upon service. He also cited Section 44(e) of the same Act which deals with affixing of the revocation notion on part of the premises. That the use of the word “or” after each mode of service in Section 44 of the Act is disjunctive, exhaustive and explicit on the mode of serving notice. He cited Section 188(3) Interpretation Act; Ifekwe v. Madu (2000) 14 NWLR (pt. 688) 459 at 467.
Also that the mailing of the notice of revocation at the Post of Office by registered post suffices as knowledge by the Appellant of the accrual of the cause of action is not a pre-condition to the operation of Section 2(a) of the Public Officers Protection Act. He cited Ajibona v. Kolawole (1996) 10 NWLR (pt. 476) 22 at 25; Davies v. Ajibona (1994) 5 NWLR (pt. 343) 234 at 255.
Learned counsel for the 1st and 2nd Respondents said that assuming without conceding that this suit was filed within time with respect to the first relief, the case is still statute barred as the 2nd relief which challenged the allocation of the plot by the 1st – 2nd Defendants/Respondents to the 3rd Defendant/Respondent which was made on the 3rd June 1997. He cited Owie v. Ighiwi (2005) 124 LRCN 503 at 531.
Mr. Ajoku for the 3rd Respondent said by the letters of Section 44, Section 44 (C) did not contemplate a situation where personal service as in Section 44(a) must have failed. That there is no requirement that Section 44(b) and (c) can be invoked only when personal service is not possible. He cited Attorney-General Lagos State v. Sowande (1992) 8 NWLR (pt. 26) 589 at 601 – 602.
On the matter of communicating the notice of revocation as provided for by Section 44 of the Land Use Act, Tobi JCA (as he then was) in interpreting that Section and its subsections stated:-
“The Section provides for five different ways of serving any notice required by the Act. They are:-
(a) by delivering the notice on whom it is to be served; or
(b) by leaving it at the usual or last known place of abode of that person; or
(c) by sending it on a prepaid registered letter addressed to that person at his usual or last known place of abode; or
(d) in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending it in a prepaid letter addressed to the secretary or clerk of the company or body at that office, or
(e) if it is not practicable after reasonable inquiry to ascertain the name or address of a holder or occupier of land on whom it should be served, by addressing it to him by the description of “holder” or “occupier” of the premises or, if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises while section 44(a) is personal service, service under 44(b) is service by substitution so also is Section 44(e) and (e). There is no requirement that Section 44(b) and (e) can be invoked only when personal service is not possible. There seems to be such requirement in Section 44(e)” per Tobi JCA (as he then was) in Attorney-General Lagos State v. Sowande (1992) 8 NWLR (pt 261) 589 at 601 – 602.
This case of Attorney-General Lagos State v. Sowande (supra) has answered the question as to the validity of notice when sent by prepaid post as in the case in hand, as required by Section 44(c) land Use Act. Furthermore by the wordings of Section 44 and its subsections, it is intended as even stated by this court in Sowande’s case (supra) that each of the subsections or alternatives stand independent of each other. Therefore the issue of the taking into effect of the Notice of Revocation upon receipt as provided in Section 28(7) of the Land Use Act is with respect to Section 44(a) of that Act and not operative under the situation where it is the alternative mode provided for in Section 44(c) is utilised. Certainly it can safely be taken that the use of the word “or” after each mode of service in Section 44 of the Act is disjunctive, which intendment of the legislature is glaring and should be respected and applied. Indeed by the language of Section 44, it was not contemplated that Section 44(c) can only apply where personal service as in Section 44(a) had been unsuccessful. See Attorney-General Lagos State v. Sowande (1992) 8 NWLR (pt. 26) 589 at 601- 602.
In respect to when the Notice of Revocation sent by prepaid post became effective, while the Appellant opined strongly that it would be at the point of receipt of the document the Respondents disagree contending that the effective date is date of mailing which is ascertainable unlike the purported date of receipt which may never be known. The position of the Appellant who was plaintiff in the court below stems from their stand point that what transpired was contractual and so the notice can only be valid after the receipt by the offeree to whom the document had been posted. They had anchored on Sagay in his book Nigeria Law of Contract page 52 para 2 which opinion relied on the English case of Byrne v. Van Tien Hoven; Obikoya & Son Ltd v. Governor of Lagos State (1987) 1 NWLR (pt. 50) 385 at 389 when that court held that Section 28 of the Land Use Act provides for notification of the Revocation must be served personally on the party to which it relates.
I am more inclined to the views of the Respondents that those authorities cited by the Appellant above would apply in the instance of contract or in revocation where personal service as under Section 44(a) had been used. I accept that the mailing of the notice of revocation at the post by registered post suffices as knowledge by the Appellant of the accrual of the cause of action is not a precondition to the operation of Section 2(a) of Public Officers Protection Act; See Ajibona Kolawole (1996) 10 NWLR (pt. 476) 25; Davies v. Ajibona (1994) 5 NWLR (pt. 343) 234.
The courts are under a duty as provided by the constitution to see that executive actions are in conformity with the fundamental rights of persons and to see that all organs of Government, observe the provisions of the constitution which includes the Land Use Act as part of the Constitution. In the instant case, there was conformity by the 1st and 2nd Respondent in sending the Notice of revocation to the Appellant in one of the modes specified by Section 44 and in this case, the method prescribed under Section 44(c) of the Land Use Act. See LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (pt. 50) 413.
I answer this third issue in favour of the Respondents.
ISSUE NO 4
Whether the learned trial Judge was right when he held that 17/06/97 to 29/09/97 was more than a period of three months allowed by a statute for filing an action against a public officer exercising public duties.
Learned counsel for the Appellant said even if this court concurs with the trial court on issue NO 3, that the cause of action arose when the letter was posted on 17/06/97 and not when it was received on 17/07/97 that by virtue of Section 8 of the Interpretation Act, Cap 123 LFN 1990, a month when used in a statute refers to a calendar month, that is, month reckoned according to the Gregorian calendar. That it is not correct to equate 3 months to 90 days as held by the trial Judge. That one month is not 30 days and neither three months to be seen as 90 days. He cited Obikoya v. G.B. Olivant (Nig) Limited (1969) NSCC vol 6 page 69 at 72; U.L.C. v. Harmond (Nig.) limited (1998) 9 NWLR (pt. 565) 340 at 364; Yaskey v. The Freetown City Council 1 WACA 297 at 303″
Mr. Okoye concluded that the revocation which was purportedly dispatched or sent on the 17/06/97 began to count from the 1st day of July and not 17th day of June 1997 and so the period of limitation had not lapsed when the action was filed.
For the 1st and 2nd Respondent it was contended that it is of no moment to argue as was done by the appellant that all months are not made up of the same number of days. He cited Niger Insurance Co. v. NAL Merchant Bank (1996) 2 NWLR (pt. 430) 370 at 377; Akeredolu v. Akinremi (1985) 2 NWLR (pt.10) 787; Yasaba v. Donklin (1998) 7 NWLR (pt. 556) 162 at 165; Civil Procedure, In Nigeria, 2nd Edition 2000, by Fidelis Nwadialor pp 1187 – 1189.
Mr. Ajoku for 3rd Respondent submitted that in the objection, all the 1st – 2nd Respondents needed to show is that they are Public Officers and that the act complained of was done pursuant to an amendment that the cause of action accrued on 17/06/97 and the writ filed on 29/09/97 outside the three months statutory period prescribed by the Public Officers Protection Act, which they had comprehensively shown.
The learned trial Judge had held:-
“…this court settled that applicant’s application is of merit. The cause of action in the present case arose on the 17/6/97 when the letter revoking the plaintiff’s plot was dispatched and not on the 17/7/97 when he received the letter in his registered post. The plaintiff’s action was filed on the 29/9/97, a period more than 3months allowed by the statute for filing such actions against Public Officers exercising public duties”.
It is a known fact that the Court of Appeal will only interfere with an exercise of a judicial discretion of a trial court where the discretion was exercised in favour of a party without regard to relevant principles of law relating to the issue in dispute between the parties before the court. That is trite but that principle cannot here apply since the trial court based its decision on the relevant legal principles. See U.I.C. Ltd v. Hammond (Nig) Ltd (1998) 9 NWLR (pt. 565) 340.
In fact on all fours with the present situation as to computation of one month is the case of Yasaba v. Donkin (1998) 7 NWLR (pt. 556) 156 per Edozie JCA (as he then was) when he said:
“By section 18 of the Interpretation Act Cap 192 Laws of the Federation 1990, ”one month” means one calendar month reckoned according to the Gregorian calendar. In the instant case, as the appeal in question was filed on 8th July, 1997 limitation period will start to run from 9th July 1997 and will expire on 8th August, 1997″.
The same calculation was used by Muhammed JCA (as he then was) in The Niger Insurance Co. v. NAL Merchant Bank (1996) 2 NWLR (pt. 430) 370 at 375. Therefore when the learned trial Judge in this instance found correctly that the letter posted on 17/06/97, which was the valid date was not reacted to by the Appellant until 29/07/97 a period more than three months, thus made the suit brought on that 29/07/97 statute barred, the argument that Appellant received the letter on 17/07/97 cannot change that state of affairs. Also of no moment is the calculation by the Appellant as to how many days in a particular month based on which 90 days would not have gone past and so covered.
In the light of these I find for the Respondents on this issue and even in respect to the entire appeal nothing has caused a different approach or decision by this court and so this appeal lacking in merit is dismissed as I affirm the decision of the court below.
Each party to bear own costs.
Other Citations: (2009)LCN/3089(CA)
