Nigerian Postal Service (Nipost) & Anr. V. Aminu Mordi (2007)
LawGlobal-Hub Lead Judgment Report
OLUKAYODE ARIWOOLA, J.C.A,
This appeal is against the decision of Federal High Court sitting in Sokoto delivered by the Honourable Justice D.J.K. Lawson on 19th July, 1999 infavour of the Plaintiff(herein after referred to as the Respondent) against the Defendants, (hereinafter referred to as the Appellants). The Respondent had claimed against the Appellants jointly and severally, the following reliefs –
(i) Market value of a road worthy and commercially fit Datsun C20 ten seater bus.
(ii) Refund of N91,704.00 being expenses incurred by the Plaintiff, in attempt to salvage the . Plaintiff’s Vehicle registration No. SO 2932 SD.
(iii) N842,000.00 being expected earnings/profit for the use of the said Vehicle from 10th August, 1996 to 3rd October, 1997 at a daily rate of N2,000.00
(iv) N2,000.00 per day from 4th October, 1997 until judgment and satisfaction thereof.
(v) Interest on total sum in (i), (ii), (iii), and (iv) at the rate of 10% per annum.
(vi) Cost of this action.
The trial Court had entered judgment in the following terms –
“Judgment is entered for the Plaintiff for the sum of N91,704.00 for spare parts repairs plus loss of earnings from 10/8/96 – 3/10/97 at N842,000 plus 5% interest at N47,000 total N980,704.00. Cost is assessed at N5,000.00…………Gross total N985,704.00…………………….. ”
Dissatisfied with the above judgment, the Appellants appealed to this Court by filing a Notice of Appeal dated 20th July, 1999 on the same date, the following day the judgment was delivered. However, on 9th August, 1999, the Appellants filed yet another Notice of Appeal, now of 6 grounds though called 7 grounds of Appeal.
On 14th February, 2002, the Appellants were granted leave to amend their Notice of Appeal filed on 9th August, 1999. The amended Notice of Appeal dated 15th October, 2001 contains three additional grounds of appeal, numbered as grounds 7, 8 and 9.
And subsequently the Appellants were granted leave to further amend their already amended Notice of Appeal filed on 27th February, 2002 by substituting new grounds 1, 2, 3, 4, 5 and 9. The further amended Notice of Appeal dated 18t February, 2005 contains the following nine grounds of appeal herewith reproduced without their particulars.
GROUND ONE
The judgment is against the weight of evidence.
GROUND TWO
The Learned trial Judge erred in Law in holding that “there is evidence before me that the Plaintiff spent N91,704.00 EXHIBIT D1 – 17 in an attempt to salvage his accident( sic) vehicle in mitigation. There is no evidence to contradict this expenditure. I therefore accept the expenditure of N91,704.00 as claimed” when this item of expenditure being in the nature of special damages was not specifically pleaded and proved strictly.
GROUND THREE
The Learned trial Judge erred in law when he found and concluded that “on the loss of earnings of N842,000.00 for the use of the said vehicle from 10th August to 3rd October 1997 at a daily rate of N2,000.00. The Plaintiff said he was earning N2,000.00 per day and this was confirmed by PW3, the Plaintiffs driver. The defendant did not lead any evidence to contradict this evidence. The court shall accept it as true” when there is evidence before the trial court that the respondent used the vehicle for sometime before commencing this action on 3/10/97.
GROUND FOUR
The Learned trial Judge erred in law when, having found and held that “once the Plaintiff chose the (sic) repair his vehicle in mitigation and after repairs used the vehicle for commercial purposes even for a day and later found it not fit for the purpose, the plaintiff, for all intents and purposes has lost grip of the defendants from 4/10/97” went ahead to award the sum of N842,000 as loss of earning for the use of the vehicle from 10/8/1996 to 3rd October, 1997 at a daily rate of N2,000.00.
GROUND FIVE
The Learned trial Judge erred in Law and acted without jurisdiction when he, held that “Judgment is entered for the plaintiff for the sum of N91,704.00 for spare parts, repairs plus loss of earnings from 10/8/1996 – 03/10/1997 at N842,000.00 plus 5% interest at N47,000.00” when there is no evidence that the claim of interest is founded upon any rationale.
GROUND SIX
The Learned trial Judge erred I(sic) Law in assuming jurisdiction over the plaintiff s action when there was no evidence before the court that the Writ of Summons was served in compliance with the provisions of the Federal High Court (civil procedure) Rules cap 134 laws of Federation of Nigeria, 1990.
GROUND SEVEN
The Learned trial Judge erred in Law in trying the Suit and entering Judgment in favour of the respondent when the suit was incompetent and not properly before the court.
GROUND EIGHT
The Learned trial Judge misdirected himself in Law and thereby came to the wrong conclusion that the presence of the Defendants and their counsel in court showed that the defendants were served with the Writ of Summons and consequently that he had jurisdiction over the defendants.
GROUND NINE
The Learned trial Judge erred in Law in assuming jurisdiction over the respondent’s action when the action is incompetent for non-compliance with fundamental requirement for seeking redress in court.
The facts of this case briefly are as follows – The Respondent is at all material times the owner of a Datson C 20 ten seater bus Registration No. SO 2932 SD being used for commercial purpose of carrying passengers along the Sokoto/Jeba Road. The 1st Appellant is a statutory monopoly corporation established by the Federal Government of Nigeria for the purpose of delivery of mails in and outside Nigeria. For that purpose it maintains an office or branch at Birnin Kebbi in Kebbi State. The 2nd Appellant was at all material times a servant of the 1st Appellant employed as a driver in charge of the 1st Appellant’s motor vehicle Peugeot 504 Station Wagon Car with Reg. No. LA 1454 R. On or about 9th August, 1996 the 2nd Appellant drove the above 18th Appellant’s vehicle along Sokoto/Bodinga Road and had collision with the Respondent’s vehicle aforementioned while it was being driven, conveying passengers. Following the collision, the respondent’s vehicle got damaged and had to be parked for a long period of time. The Respondent later got his vehicle repaired when the Appellants did not take any step to mitigate the damage suffered by the Respondent, leading to the action instituted
ISSUES FOR DETERMINATION
“1. Whether the suit before the trial Federal High Court was competent in view of non-compliance with the fundamental requirement of the provisions of Section 59(1) of the Nigerian Postal Service Decree 41 of 1992.
- Whether on the printed record there was proper service or any service at all of the Writ of Summons on the 1st Appellant in view of the provisions of Order X, Rule 8 of the Federal High Court (Civil Procedure) Rules, Cap 134. Laws of Federation of Nigeria, 1990.
- Whether the suit before the trial Federal High Court was competent in view of non-compliance with the fundamental requirement of the proviso to Section 230 (i) of the Constitution (Suspension and Modification) Decree No. 107 of 1993.” Sequel to the application dated 17th October, 2005, the Respondent was granted leave on 7th March, 2006 to file his brief of argument out of time and the brief was accordingly filed on 7th March, 2006. In the said brief of argument, the Respondent formulated three issues from the grounds of appeal as follows:-
“1. Whether on the printed record there was proper service on the Appellants in view of the provision of Order X Rule 8 of the Federal High Court (Civil Procedure) Rules CAP 134, Laws of the Federation of Nigeria 1990. This issue is distilled for good(sic) ground 6 of the further amended Notice of Appeal.
- Whether or not the Respondent’s action for damages, loss of earnings and interest, premised on the tort of negligence driving within the jurisdiction conferred on the Federal High Court by Section 230(1) of the Constitution (Suspension and Modification) Decree No. 107 of 1993. This issue is distilled from ground 7 of the further Amended Notice of Appeal.
- Whether the Respondent’s action before the trial Federal High Court was competent in views of the statutory limitation placed by Section 59(1) of the Nigeria(sic) Postal Service Decree No. 41 of 1992. This issue is distilled from ground 9 of the further Amended Notice of Appeal.”
In arguing the issues formulated for determination, learned counsel for the Appellants took the issues one after the other. Issue No.1 relates to ground 9 of the further amended Notice of Appeal. It questions the competence of the suit before the trial court for non-compliance with fundamental requirement for the institution of action in Court against the Appellants under the provisions of Section 59(1) of the Nigerian Postal Service Decree 41 of 1992. Learned counsel submitted that when a statute prescribes a condition precedent to the institution of an action in court, any suit instituted in contravention of the pre-condition provisions of the relevant law is incompetent and the Court is for that reason lacking in jurisdictional power to entertain it. He cited a few cases including – Madukolu vs. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR 587, Western Steel Works vs. Iron & Steel Workers Union of Nigeria (1980) 3 NWLR (pt 30) 617, Ajanaku vs. COP (1979) 3 – 4 SC 28, Gambari vs. Gambari (1990) 5 NWLR (pt 152) 572, Chevron Nig. Limited vs. Onwugbelu (1998) 3 NWLR (pt 437) 404 at 419, Babalola vs. Osogbo Local Government (2003) 10 NWLR (pt 829) 465.
Learned counsel referred to the pleadings of the Respondent and the evidence adduced to the effect that the 2nd Appellant negligently drove 1st Appellant’s Vehicle on 9th August, 1996 and collided with the Respondent’s vehicle causing extensive damages on the said Respondent’s vehicle. The respondent took out a Writ of Summons in this case against the Appellants on 3rd October, 1997. Learned counsel also referred to the trial Judge’s holding that the 2nd Appellant was negligent in causing the accident. He however contended that by the law that established the 18th Appellant, the respondent was required to institute his action against the Appellants within twelve months of the neglect act or default complained of. He referred to Section 59(1) Nigerian Postal Service Decree 41 of 1992. Learned counsel contended further that the period between the 9th August, 1996 and 3rd October, 1997 was certainly more than the twelve months required by law within which the Respondent had to commence the action. It was thirteen months, twenty-three days (13months 23 days). He submitted that having commenced the action outside the twelve months required by law, the action was not initiated by due process of law for non compliance with the condition precedent to issuance of Writ of Summons under Section 59(1) of Decree 41 of 1992. Learned counsel further submitted that the Writ of Summons issued after twelve months had expired was fundamentally defective robbing the Federal High Court of competence to entertain the suit. Consequently, the proceedings conducted by the trial court including judgment and orders made thereto are null and void. He cited, Madukolu vs. Nkemdilim (supra), Babalola vs. Osogbo Local Government (supra) and other cases earlier cited.
Learned counsel submitted that .the issue of competence of an action can be raised at any stage of the proceedings even on appeal to the Supreme Court. He cited a number of cases to back up his submission. He finally urged us to resolve issue No. 1 in the negative against the respondent. He cited Section 74 of Evidence Act, Cap 112 LFN 1990, Majaki vs. LCTCCC (1977) 7 SC 81.
Issue NO.2 relates to ground six of the Appellants’ further amended Notice of Appeal. The Appellants complaint is against the exercise of jurisdiction by the learned trial judge in the absence of proof of service of the Writ of Summons on the Appellants as required by the rules of the trial court.
Learned counsel submitted that service of a writ or of an originating process is a precondition to the exercise of jurisdiction by the Court. Where there is no service or there is procedural fault in the service or service was not done in the manner it should be served, the subsequent proceedings are nullity ab initio for failure to comply with statutory requirement for initiation of proceedings. He cited, Eimskip Ltd. Vs. Exquisite Industrial Ltd. (2003) 4 NWLR (pt 809) 88 at 118-119, Madukolu vs. Nkemdilim (sum), Odutola vs. Kayode (1994) 2 NWLR (pt 324) 1 at 2, (1994) 14 LRCN 1 at 19, Nwabueze vs. Okoye (1988) 4 NWLR (pt 91) 664.
Learned counsel referred to the address for service on the 1st Appellant as shown on the Writ of Summons. He cited; Sections 1(1), 4, 5 and 7 of the Nigerian Postal Service Decree 41 of 1992. Learned counsel contended that by virtue of Order X Rule 8 of the Federal High Court (Civil Procedure) Rules Cap 134, Laws of the Federation of Nigeria, 1990, Writ of Summons is served on the 1st Appellant, a corporate body, only in the manner provided by the Rules of Court. He submitted that the procedure is by giving the Writ of Summons to any Director, Trustee, Secretary or any Principal Officer or by leaving it at the office of the 1st Appellant. He referred to Order X Rules 16 and 19 of the Rules of Court, and submitted that service of Writ of Summons is proved by the production of a Certificate of Service.
Learned counsel contended that with the address of service as given on the Writ of Summons, the writ was not served as required hence it was bad, ineffective and not a proper service in law. He cited, Kisari Investment Ltd. Vs. La-Terminal Company Ltd. (2001) 16 NWLR (pt 739) 381 at 406, Mark vs. Eke (2004) 5 NWLR (pt 865) 54, Union Bevera2es Ltd. Vs. Adamite Company Ltd. (1990) 7 NWLR (pt 162) 348.
Learned counsel submitted that the absence of proof of service of Writ of Summons on 1st Appellant is a fundamental breach of an essential condition for the Court to have the competence and jurisdiction to entertain the action. The failure to prove service of the Writ on the 1st Appellant, he submitted, rendered the whole proceedings including the judgment wholly irregular, null and void. He urged the Court to resolve issue No. 2 in the negative, allow the appeal and set aside the judgment of the trial Court.
The third issue for determination relates to ground seven of the Appellants’ further amended Notice of Appeal, Learned counsel referred to his submissions on Issues No. 1 and 2 and relied on the cases cited therein.
Learned counsel contended that for the action to be competent, it must be shown to be based on an enactment, law or equity in compliance with the proviso to Section 230(1) of Decree 107 of 1993, he submitted that the proviso cannot be invoked where no relevant enactment, law or equity authorizes an action for damages. He relied on the Decree, the cases of Ransome Kuti vs. A.G., Federation (1985) 2 NWLR (pt 6) 211 at 233, NEPA vs. Edegbero (2002) 103) LRCN 2280 at 2298.
Learned counsel contended that in the instant case, the Respondent’s action for damages is not shown to be based on any enactment, law or equity within the meaning of those words in the proviso to Section 230(1) of Decree 107 of 1993. Rather there were allegations in the particulars of negligence. On what is “Enactment” and “Law”, he referred to Sections 37(1) and 18(1) of Interpretation Act Cap 192 of Laws of Federation, 1990.
Learned counsel further submitted that the respondent’s suit was commenced in contravention of the proviso to Section 230(1) of Decree 107 of 1993 and therefore was incompetent and not properly constituted. Compliance with the proviso being a condition precedent to the competence of the Respondent’s action for damages. He cited; Abakaliki Local Govt. vs. Abakaliki R.M.O. (1990) 6 NWLR (pt 155) 182 at 190.
Learned counsel submitted that the defect in not basing the action for damages on any enactment, law or equity is fundamental to the institution of the action, consequently, the entire proceedings including judgment founded on the fundamentally defective foundation are incurably bad, null and void and of no effect. He cited; Macfoy vs. U.A.C. (1961) 3 All ER 1169.
Learned counsel finally urged the Court to resolve Issue No.3 in the negative against the Respondent, allow the appeal and set aside the judgment of the trial court. In responding, learned counsel to the Respondent referred to the three issues formulated for determination by the Appellants’ counsel and contended that the issues were distilled from only grounds 9, 6 and 7 respectively of the further amended Notice of Appeal. He submitted that the implication is that those grounds from which no issues are raised and in respect of which no argument can be preferred are deemed abandoned. Hence, he urged the Court to strike out other grounds 1, 2, 3, 4, 5 and 8 of the further amended Notice of Appeal. He cited, Esuruoso & Ors.vs. Ogidi (2002) 35 WRN 129 at 139 – 140.
Learned counsel to the Respondent thereafter took the issues he had formulated for argument. He contended that Respondent’s Issue No.1 is equivalent to the Appellants’ Issue No.2 on the allegation of failure of service of Writ of Summons. He contended that the issue of failure to serve was taken by the Appellants’ counsel in his address before the trial court hence springing surprises on the Respondent and the trial Court. He further contended that yet the objection even only relates to failure of service on the 2nd Appellant.
Learned counsel referred to the record of appeal where on one of the twenty-three (23) appearances of counsel in the case, one of the Respondent’s counsel, Mr. Maikyau clearly admitted that the “Defendants have been served with summons in the suit.” He also referred to the “unconditional appearance” entered by the Appellants to the Respondent’s action. Also the oral testimony of the 2nd Appellant as DWI at pages 59 – 62 of the printed record of appeal did not complain about non service on him of writ of summons. He submitted that the 2nd Appellant should be bound by the admission made by their counsel on service of Writ of Summons. He cited; M.G.N. Ltd. vs. N.S.P. Ltd. (1987) 1 NWLR (pt 55) 110 at 121, Afegbai vs. A.G. Edo State (2001) 7 SC (pt 11) 1 at 19.
On the service on 1st Appellant through the Area Postal Controller, Kebbi State, he contended that the Area Postal Controller occupies a position very much like the branch manager of a Company whom the Court has held to be a Principal Officer. He cited, Nigeria Airways Ltd. vs. Ahmadu (1991) 5 NWLR (pt 198) 492. He urged the Court to hold that the Area controller of Kebbi State is a Principal Officer within the organisation of the 1st Appellant and that service on him is proper service within the contemplation of Order X Rule 8 of the Federal High Court (Civil Procedure) Rules.
Learned counsel further contended that having submitted themselves to jurisdiction and participated in the proceedings of the Court, the Appellants should be taken to have waived their right to personal service or that service on the 2nd Appellant through his employer was improper. He submitted that the Appellants should have raised the objection in limine and before taking fresh steps in the proceedings, else the right to proper service or the breach of service, which is not admitted, would be considered as mere irregularity not sufficient to vitiate the whole of the proceedings which the party had consented to. He cited; Ames vs. FAAN (2002) 3 WRN 162 at 171 Fasade & Ors. vs. Babalola & Drs. (2003) 14 NSCQR (pt 1) 138 at 153.
Learned counsel contended that the 2nd Appellant cannot insist on personal service of the Writ of Summons given the fact that he is a servant of the 1st Appellant which is a department or statutory corporation of the Federal Government of Nigeria. He referred to the averments in paragraphs 3 and 4 of the amended statement of claim of the Respondent at page 41 of the record as expressly admitted by the Appellants in paragraph 1 of their statement of defence at page 31 of the record of appeal. He further contended that the 2nd Appellant was at all material times an employee of the Federal Government of Nigeria within the contemplation of the provisions of Order X Rule 6 of the Federal High Court (Civil Procedure) Rules, Cap. 134, Laws of the Federation of Nigeria, 1990, which requires a government employee such as the 2nd Appellant to be served through the most Senior Officer of the relevant department of government within the Judicial division or place where the party to be served works or resides. He urged the Court to resolve this Issue No. 1 against the Appellants, dismiss the appeal and uphold the decision of the Court below on the issue.
On Issue No.2, as formulated by the Respondent which corresponds with Issue No. 3 of the Appellants’ formulated issues, learned counsel to the Respondent adopts as his own the submissions of the Appellants’ counsel in paragraph 4.33 through to paragraph 4.40 of the Appellants brief of argument.
Learned counsel submitted that the provisions of Section 230(1) of decree 107 of 1993 preserves the right of an aggrieved person to bring an action against an agency of the Federal Government before the Court below for damages, specific performance or injunction based or arising from any enactment, law or equity. He submitted further that where a right of action arises pursuant to a right recognised by common law or in equity against a Federal Government agency, as in the present case, the proviso to Section 230(1) of the Decree clearly preserves such right of action before the Federal High Court. The claim of the Respondent is therefore cognizable by the Court below under the said proviso to Section 230(1) of Decree 107 of 1993, he concluded.
He finally submitted on this issue and urged this Court to hold, that the trial Court had jurisdiction to hear and determine the Respondent’s claim before it. He urged us to resolve the issue against the Appellants and thereby dismiss the appeal on this ground.
Issue No.3 of the Respondent’s formulated issues is the same as Issue No. 1 of the Appellants Issues distilled from the grounds of appeal. This issue has to do with the provision of Section 59(1) of the Nigeria Postal Service, Decree 41 of 1992 which stipulates a mandatory period of twelve (12) months from the accrued right of action within which to seek redress in Court. Learned Respondent’s counsel agreed and conceded that ordinarily, the Respondent’s claim “would have been barred” at the time he filed it which was outside the required twelve months, but for the peculiar tardiness of the Appellants in raising the point. He contended that the Appellants had waited for too long before raising the point. He said during this period, a lot of judicial time and cost had been wasted which could have been saved by a timely objection. He cited, Ishola Balogun Ketu & Anor vs, Chief Wahab Onikoro & Ors. (1964) 1 All NLR 96. He urged the Court to hold that the Appellant did not raise the defence of limitation timeously hence should resolve the issue against the Appellant and dismiss the appeal.
The Appellants on receipt of the respondent’s brief of argument filed a reply brief of argument dated 21st March., 2006 on 22nd March, 2006. Learned counsel to the Appellants in the said reply brief controverted the issues formally formulated by the Respondent, purportedly from the grounds of appeal contained in the Notice of Appeal.
I have carefully considered the issues formulated by the Respondent and compared same with those formulated by the Appellants in their joint brief of argument. The said Issues are not radically and fundamentally different from those distilled from the ground of appeal by the Appellants though differently couched, arranged and numbered. The Issues are saying the same thing in different words. As a result, I propose to consider the Issues formulated by the Appellants in determining this appeal.
However, before I proceed further in this judgment it is pertinent to consider the competence of the grounds of appeal as contained in the further amended Notice of Appeal. It is noteworthy that nine (9) grounds of appeal were listed in the further amended notice of appeal but three issues were formulated therefrom. As ordinarily expected, the issues were married to the respective ground from which they were formulated. In otherworld, the 1st issue is said to relate to ground nine (9) while the 2nd and 3rd issues are said to have been formulated from grounds six (6) and seven (7) of the grounds of appeal. It follows therefore that no issue has been formulated from or can be related to grounds 1, 2, 3, 4, 5 and 8 of the grounds of appeal. The position of the law is that a ground of appeal in respect of which no issue has been formulated is deemed abandoned and is liable to be struck out. See; Emespo J. Continental Ltd. vs. Corona Shjfah-Rtsgesllschaff & Ors. (2006) 8 SCM 149 at 161, Enawakponmwhem Aigbobabi & Ors. vs. Chief Edokpayi Aifuwa & Ors. (2006) 2 SCM 123 at 130, Newswatch Communications Ltd. vs Attah (2000) 2 NWLR (Pt.645) 592, H.R.H. Eze Dr. F. Adele Eke vs. G.C. Ogbonda (2007) 6 WRN 1 at 16, (2006) 18 NWLR (Pt. 1012) 506 at 522 – 523. Accordingly, grounds 1, 2, 3, 4, 5 and 8 of the grounds of Appeal from which no issue has been formulated are deemed to have been abandoned and are hereby struck out.
This leads me to the consideration of the Issues formulated for determination by the Appellants. Issue No. 1 is, “whether the suit before the trial Federal High Court was competent in view of non-compliance with the fundamental requirement of the provisions of Section 59(1) of the Nigerian Postal Service Decree 41 of 1992”. The Law reads thus:
“59(1) Notwithstanding anything contained in any enactment whatsoever, no action shall lie or be instituted in any Court against the Postal service, a member or an Officer of the Postal Service, for any act done in pursuance of or execution of any enactment or law of any public duty or authority unless it is commenced within twelve months after the act or default complained of or, in the case of a continuous damage or injury, within twelve months next after the ceasing thereof”.
There is no doubt that the act of the Appellants, in particular, the act of the 2nd Appellant which led to the action being instituted, took place on or about the 9th day of August, 1996. It is also clear from the records of appeal and not disputable that this action commenced with a Writ of Summons issued or taken out on 3rd October, 1997. The period between the date the act complained of took place and commencement of action is thirteen months, twenty-three days (13 months 23 days). The pleadings of the parties are very clear on this. The Statement of Claim in particular reads, inter-alia, as follows:
“5. On or about 9th August, 1996 the 2nd Defendant negligently drove/managed the vehicle aforesaid along Sokoto/Bodinga
Road within the jurisdiction of this Honourable Court and caused a collision with the Plaintiff’s vehicle Registration No. SO 2932 SD which was then being driven normally on the highway in the course of conveying passengers.
- The Plaintiff avers that as a result of the impact caused by the collision the Plaintiff’s vehicle was extensively damaged and became unroad worthy and unfit for its commercial purpose.
……………………………….
……………………………….
- The Plaintiff avers that his vehicle sustained damage to its body, chassis, suspension system and engine by reason of which it had to be parked for a long period thus causing the Plaintiff loss of his expected profits.”
It is clear from the enabling Law that created the Appellants that for any claimant to succeed in any cause of action against the Appellants, the action must be commenced within the stipulated period of time. That is, twelve months. In other words, any action instituted after the expiration of the twelve months will surely be statute barred and the trial Court will thereby be robbed of competence to adjudicate on the cause of action. It is trite that in considering whether or not a Court has jurisdiction to entertain a matter or action, it is the Plaintiffs claim as endorsed on the Writ of Summons and the Statement of Claim that the court has to consider but not the defence. See; Adeyemi vs.Opeyori (1976) 9 – 10 SC 31, Aremo II vs. Adekanye & 2 Ors. (2004) 13 NWLR (pt 891) 572 at 590, (2004) 8 SCM 9, (20040 42 WRN 1, Balogun & Ors. vs. Ode & Ors. (2004) 4 NWLR (pt 1023) 1 at 14.
The law makers sometimes prescribes certain periods of limitation for instituting certain actions. The Laws that prescribe such periods and regulate the subsistence of cause of action are known as statutes of limitation. Therefore, where a law prescribes the period within which an action must be instituted or commenced, legal proceedings cannot be properly or validly commenced after the expiration of the prescribed period. Such action is said to be statute barred. Where an action is caught by the limitation law, a Plaintiff who might otherwise have had a cause of action will loose the right to enforce such cause by judicial process due to the expiration of the time prescribed for the institution of such an action. See;’ Eboh!be vs. N.N.P.C. (1994) 5 NWLR (pt 347) 649, Odubeko vs. Fowler (1993) 7 NWLR (pt 308) 637, Sanda vs. Kukawa Local Government (1991) 2 NWLR (pt 174) 379. In Oba J.A. Aremo II vs. S.F. Adekanye & Ors. (supra) at 592 the Supreme Court, per Edozie, JSC on when the limitation period, the expiration of which creates bar to an otherwise justiciable cause of action begins to run, had this to say;
“The period of limitation begins to run from the date on which the cause of action accrued. To determine whether an action is statute barred, all that is required is for one to examine the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and comparing that date with the date on which the Writ of Summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred”.
See also; Egbe vs. Adefarasin (1987) 1 NWLR (pt 47) 1 at 20 – 21, Elabanjo & Anor vs. Dawodu (2006) 10 – 11 SCM 267 at 291 – 292.
Applying the above principle to the instant suit and looking at the pleadings vis-a-vis the time the Civil Summons was taken out against the Appellants, it is clear that the respondent’s action was caught by the limitation period prescribed in the law that established the 1st Appellant as stated earlier. In otherwords, as at the time the Writ of Summons was issued out, the action had become statute barred and the trial Court had become incompetent to entertain the action as he did. It is interesting to note that after conceding that the Respondent’s action in this case which was instituted outside the expiration of the prescribed period, was caught by the limitation period, learned counsel to the Respondent, contended that the issue was not raised by the Appellant timeously. As much as it is conceded to the learned counsel to the respondent that the issue could have been taken in limine whereby time and costs could have been saved, the defence of limitation law relates to the jurisdiction of Court. And a question of jurisdiction or competence of Court, being radically fundamental can be raised at any stage of a proceeding, even for the first time at the Appellate Court. See; Mgt. Enterprises Limited vs. Otusanya (1987) 2 NWLR (pt 55) 179, Samson Owie vs. Solomon E. Ighiwi (2005) 5 NWLR (pt 917) 184 at 223.
Similarly, the learned counsel to the Respondent contended further to the effect that having entered unconditional appearance, joined issues and taken part in the proceedings at the trial court, the Appellants cannot be heard to raise the issue of incompetence of the action again. They should be seen to have waived their right to complain. This, to say the least, is a misconception. It is trite law that where a Court lacks jurisdiction or competence to entertain an action, the parties to the suit cannot by acquiescence, waiver or even agreement confer jurisdiction or competence upon the Court. See; S.D. Ukpong & 1 Or. vs. Commissioner for Finance etc. & 1 Or. (2006) 12 SCM (pt 2) 460. And as in the instant case where expiration of prescribed period has robbed the Court of competence, parties cannot extend the time that has lapsed in order to confer jurisdiction upon the Court. See: Agu vs. Odofin (1992) 3 SCNJ 161 at 177. A party cannot waive a situation where, clearly the Court lacks jurisdiction to entertain a matter. See; Ugo vs. Okafor (1996) 3 NWLR (pt 438) 542 at 558.In the result, the instant case having been commenced on 3rd October, 1997 when the cause of action arose on 9th August, 1996, the action is caught by the provision of Section 59(1) of the Nigerian Postal Service Decree 41 of 1992 applicable in this case. In otherwords, the action is caught by statute of limitation, rendering the case to be statute barred and no longer justiciable.
Accordingly, Issue No. 1 is hereby resolved against the Respondent but in favour of the Appellants.
Having come to the conclusion that the trial court was lacking in competence to entertain the Respondent’s action, Issue No.1 alone is enough to resolve the appeal without considering any of the other two issues formulated. I am of the view that no miscarriage of justice will be occasioned thereby. Generally, the Court is expected to consider all issues formulated or raised by parties in their brief. See; Owodunni vs. Registered Trustees of Celestial Church of Christ & 3 Ors. (2000) 2 WRN 29, (2000) 6 SCNJ 399 at 426 – 427, (2000) 10 NWLR (pt 675) 315, Ishaya Bamaiyi vs. The State (2001) 16 WRN 1 (2001) 4 SCNJ 103, (2001) 8 NWLR (pt 715) 270. However, although it is the duty of an appellate Court to consider all Issues placed before it, but where the Court is of the view that consideration of one Issue is enough to dispose of the appeal, it is not under any obligation to consider all the other Issues posed in the case. See; Diokpa Francis Onochie & 2 Ors. vs. Ferguson Odogwu & 7 Ors. (2006) 2 SCM 95, (2006) 17 WRN 1, (2006) 2 SCNJ 96.
In Dr. Ime Sampson Umanah vs. Obong (Arc.) Victor Attah & Ors. (2006) 12 SCM (pt 2) 487 at 512, the Supreme Court, per Onnoghen, JSC having resolved the appeal on lack of jurisdiction by the trial Court stated thus:
“In conclusion, since the Court of trial had no jurisdiction to entertain the matter, it becomes unnecessary for me to consider the other issues formulated for determination as they are thereby rendered academic or hypothetical.”
It is on the above premise that I hold that this appeal is disposable and shall be disposed on the only Issue No. 1 already considered.
Accordingly, this appeal succeeds and is allowed on the ground that the action had become statute barred when it was instituted, and the trial Court thereby lacked competence to entertain it. It is trite that proceedings concluded and decision given by a Court without jurisdiction or competence is a nullity. See; Ekulo Farms Limited & Anor vs. Union Bank of Nigeria Plc (2006) 6 SCM 78 at 91- 92.
In the circumstance, the judgment of the trial Federal High Court, sitting in Sokoto delivered by Hon. Justice D.J.K. Lawson on 19th July, 1999 in Suit No. FHC/S/CS/17/97 is hereby set aside and the Respondent’s suit before the trial Court is accordingly struck out.
I make no further order on costs.
Other Citations: (2007)LCN/2332(CA)
