Obasanjo & Anor V. Wuro Bogga (Nig) Ltd & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

ADAMU JAURO, J.S.C. 

This appeal is against the judgment of the Court of Appeal, Abuja Judicial Division setting aside the ruling of the High Court of the Federal Capital Territory which dismissed the 1st and 2nd Respondents’ suit for being statute barred under Section 2 (a) of the Public Officers (Protection) Act.

BRIEF STATEMENT OF FACTS

The 1st and 2nd Respondents as Plaintiffs took out a Writ of Summons and Statement of Claim against the Appellants as well as the 3rd and 4th Respondents seeking the following reliefs:

1. “A DECLARATION that the 2nd Plaintiff is the beneficial owner of the property located at Plot 6 Cadastral Zone B05, Utako, Abuja which is covered by a previous Certificate of Occupancy File No: FCT/ABV/MISC: 7300 now numbered as File NO: MISC 55124.
2. AN ORDER of this Honourable Court that the purported revocation without prior notice or fair hearing by the 1st & 2nd Defendants of the Plaintiffs’ right of occupancy in Plot No. 6 Cadastral Zone B05, Utako Abuja is unconstitutional, invalid, null, void and of no effect.
3. AN ORDER of this Honourable Court that the purported reallocation by the 1st and 2nd Defendant of the Plaintiffs’ fight of occupancy in Plot No. 6 Cadastral Zone B05, Utako – Abuja to the 3rd and/or the 4th Defendants and indeed any third party is invalid, null, void and of no effect.
4. AN ORDER of this Honourable Court that the 1st and 2nd Defendants should reinstate the property located at Plot No. 6 Cadastral Zone BO 5, Utako-Abuja to the 1st and/or the 2nd Plaintiff.
5. AN ORDER of this Honourable Court restraining all the Defendants, their agents, servants or privies from interfering with the right of the 1st and/or 2nd Plaintiffs to develop Plot No. 6 within Jabi District, Abuja.
6. AN ORDER of this Honourable Court awarding the sum of N10,000,000.00 (Ten Million Naira) only against the 3rd and 4th Defendants to the Plaintiffs for trespass to the property of the Plaintiffs.
7. AND for such other orders or further orders as this Honourable Court may deem fit.

The averments of the 1st and 2nd Respondents as Plaintiffs in their Statement of Claim are to the effect that the 1st Respondent was issued a C of O in respect of the land in dispute on 7/6/1998. That the 1st Respondent sold the said land to the 2nd Respondent in 2004, which sale was evidenced by a Deed of Assignment and an Irrevocable Power of Attorney. According to the 1st and 2nd Respondents, the 4th Respondent was made aware of the sale by submitting relevant documents to it. It was further averred that by a letter dated 5/10/2005, the 3rd Respondent revoked the 1st Respondent’s C of O without prior notice or fair hearing. Miffed by the said revocation, the 1st and 2nd Respondents filed the suit culminating into the instant appeal via a Writ of Summons on 18/6/2007.

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Upon service of the originating processes on the Defendants, the Appellants as 3rd and 4th Defendants on one hand and the 3rd and 4th Respondents as 1st and 2nd Defendants on the other hand, filed Memorandum of Conditional Appearances as well as notices of preliminary objections. Their objections were basically to the effect that the action was statute barred by virtue of Section 2(a) of the Public Officers (Protection) Act. According to them, the essence of the action was a challenge to the powers of the 3rd and 4th Respondents in revoking the 1st Respondent’s Certificate of Occupancy. The 1st and 2nd Respondents filed a joint reply to the notices of preliminary objection wherein it was contended that the objections were incompetent for being demurrers and that the Public Officers (Protection) Act was inapplicable to an action predicated on recovery of land.

In its ruling on the preliminary objections, the trial Court held that the Defendants’ objections challenged the jurisdiction of the Court and could therefore not be considered demurrer and that the action was caught by Section 2(a) of the Public Officers (Protection) Act. The trial Court declined jurisdiction and consequently dismissed the suit.

The 1st and 2nd Respondents were aggrieved causing them to lodge an appeal before the Court below. The Court below in its judgment, upheld the ruling of the trial Court on the issue of demurrer, but set aside the part of the ruling wherein it was held that the action was statute barred by virtue of Section 2(a) of the Public Officers (Protection) Act. The Court below held further that the applicable law to the suit was Section 15 of the Limitation Act Cap 522 Laws of the Federation of Nigeria which provides for a limitation period of 12 years. Disgruntled by the turn of events, the Appellants instituted this appeal via a Notice of Appeal filed on 23/2/2010.

OLUWOLE ALADEDOYE ESQ., settled the Appellants’ brief of argument filed on 28/5/2010. The following issue was identified by the Appellants’ counsel as arising for determination in this appeal:

“Whether the learned Justices of the Court of Appeal were right not to have invoked the provisions of the Public Officers (Protection) Act having regard to the facts and circumstances of this case? (grounds 1 – 4)”

S.O. IMHANOBE ESQ., settled the 1st & 2nd Respondents’ brief of argument filed on 21/07/2020. Learned counsel formulated the following issue on behalf of the 1st and 2nd Respondents:

“Whether the learned Justices of the lower Court were in error when they held that the applicable law on limitation of time in an action for recovery of land within the Federal Capital Territory Abuja is Section 15 of the Limitation Act, Cap 522, Laws of the Federation of Nigeria?”

The 3rd and 4th Respondents’ brief was filed on 18/3/2022 and same was settled by CHIEF KINSLEY CHUKU who for the determination of the instant appeal adopted the Appellants’ sole issue.

Before going into submissions and arguments of counsel as encapsulated in their respective briefs of argument, it is important that I comment on the propriety of the 3rd and 4th Respondents’ brief of argument. As Respondents in this appeal, it presupposes that the 3rd and Respondents stick to their roles by defending the decision being appealed against. Contrary to the principles guiding appellate practice, the 3rd and 4th Respondents’ counsel argued against the judgment of the Court below. The law is trite that the duty of a Respondent in an appellate exercise is to defend the decision appealed against. See DAHIRU & ANOR V. APC & ORS (2016) LPELR – 42089 (SC), OBI V. INEC & ORS (2007) LPELR – 2166 (SC), BUHARI & ORS V. OBASANJO & ORS (2003) LPELR – 24859 (SC), EZEANAH V. ATTA (2004) LPELR – 1198 (SC), ZAKIRAI V. MUHAMMAD & ORS (2017) LPELR – 42349(SC).

In the circumstance therefore, the 3rd and 4th Respondents’ brief is not worthy of consideration. If they are disgruntled with the decision of the Court below, they ought to have filed a separate notice of appeal or a notice of cross-appeal. On the premise of the above, the said brief would not be countenanced in the determination of this appeal. Consequently, the 3rd and 4th Respondents’ brief of argument is hereby struck out.

This appeal will therefore be determined within the confines of the issues distilled by the Appellants and the 1st and 2nd Respondents.

ARGUMENTS AND SUBMISSIONS OF COUNSEL

Arguing the lone issue, learned counsel for the Appellants submitted that the 1st and 2nd Respondent pleaded the capacity of the 3rd and 4th Respondents in paragraphs 3 and 4 of the Statement of Claim before the trial Court. He submitted that paragraph 11 of the Statement of Claim formed the basis of the 1st and 2nd Respondent’s grievances and that same showed that they were displeased with the administrative or ministerial actions of the 3rd and 4th Respondents who are public officers and by virtue of which Section 2(a) of the Public Officers (Protection) Act is applicable.

Counsel cited the case of IBRAHIM V. JSC (1998) 14 NWLR (PT. 584) 1 and submitted that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be instituted after the time prescribed by such statute. It was further submitted that it is clear from the Statement of Claim that the case of the 1st and 2nd Respondents is not for recovery of land simpliciter. He also submitted that since Section 2(a) of the Public Officers (Protection) Act has fixed three months for an action such as this which seeks to challenge the administrative action of a public officer, the Limitation Act relied upon by the lower Court is inapplicable to this case.

It was the further submission of counsel that the 1st and 2nd Respondents did not aver that the 3rd and 4th Respondents acted outside the scope of their duties. That father the Statement of Claim reveals that the act of the 3rd and 4th Respondents which forms the basis of the 1st and 2nd Respondents’ complaints was carried out in the course of execution of intended execution of a public duty. That from the contents of the Notice of Revocation frontloaded by the 1st and 2nd Respondents which is at page 23 of the record, the 3rd and 4th Respondents were exercising their power under Section 28 (5) (a) & (b) of the Land Use Act, 1978.

In the final analysis, counsel urged this Court to allow the appeal and hold that the suit is statute barred having regard to Section 2(a) of the Public Officers (Protection) Act.

By way of reply, learned counsel for the 1st and 2nd Respondents submitted that while the Appellants rightly argued that the basis of the 1st and 2nd Respondents’ grievances is their displeasure over the revocation of the 1st Respondent’s Right of Occupancy in respect of the disputed property, however they fell short of stating that the relief sought by the 1st and 2nd Respondents is the recovery of the land in dispute. It was further submitted that the Appellants misconstrued the purport of paragraph 11 of the Statement of Claim and placed undue premium on the words “Purporting to exercise powers under Section 28(5)(a) and (b)”. That upon a proper construction of the said paragraph, the real import thereof is that the 1st and 2nd Respondents’ sought to recover the land unlawfully taken away from them. He urged this Court to affirm the finding of the lower Court that the suit is a claim for recovery of land.

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In reaction to the Appellants’ argument that the 1st and 2nd Respondents did not aver that the 3rd and 4th Respondents acted outside their duty, it was submitted that the 1st and 2nd Respondents alleged in paragraph 11 of their Statement of Claim that the 3rd and 4th Respondents breached their constitutional fight to fair hearing. That the said breach cannot be circumvented by reliance on exercise of the 3rd and 4th Respondents’ statutory powers under Section 28(5)(a) & (b) of the Land Use Act and the limitation provision in Section 2(a) of the Public Officers (Protection) Act. Counsel cited the case of OSUN STATE GOVERNMENT V. DALAMI (2007) 9 NWLR (PT. 1038) 66 and urged this Court to dismiss the appeal and affirm the decision of the lower Court.

RESOLUTION

The law is settled that a cause of action arises as soon as the combination of facts giving the right to complain happens. In other words, a cause of action is said to have accrued when the entire factual situations which give a person the right to a judicial relief are present or have happened. That is, when all that is necessary to make the matter in litigation an enforceable right or an actionable wrong have occurred. See ZUBAIR V. KOLAWOLE (2019) LPELR-46928 (SC) AT 19(D-F), MAIGARI V. MALLE & ORS. (2019) LPELR-49374(SC) AT 15-22 (F-B). It is the accrual of the cause of action that confers on the appellant the fight to institute an action to enforce the cause of action or right to a judicial relief. See HASSAN V. ALIYU & ORS. (2010) LPELR-1357(SC) AT 24- 25 (A-E). In order to determine the cause of action, when it accrued and when the action is filed, the Court will look at the claim of the plaintiff and the facts pleaded in the statement of claim.

The Appellants’ claim has been stated earlier in this judgment. The facts in support of claim are pleaded in paragraphs 7 – 15 of the Statement of Claim as follows:

“7. On 07/06/1998, the 1st Plaintiff was issued the Certificate of Occupancy No. FCT/ABU/MISC: 7300 in respect of Plot No.6 Cadastral Zone B05, Utako – Abuja measuring 4246.92 square meters for a term of 99 years commencing 12/01/1994 (the ‘Property’).

8. On 25/8/2004, the 1st plaintiff sold the property to the 2nd plaintiff. The sale is evidenced a deed of assignment and an irrevocable power of attorney dated 25/8/2004. The plaintiffs hereby plead the said Certificate of Occupancy and Power of Attorney.
9. The plaintiff submitted the power of attorney to the 2nd defendant and paid to the 2nd defendant the sum of N51,000 (Fifty-one thousand Naira) only for registration of the power of attorney. The plaintiffs hereby plead the receipt of payment number 000722307 dated 29/04/2004.
10. On the 20/06/2005, the 2nd plaintiff through their agent Lawal I. Isa, submitted the Certificate of Occupancy No. FCT/ABU/MISC:7300 and the Power of Attorney in respect of Plot No. 6 Cadastral Zone B05, Utako – Abuja to Abuja Geographic Information Systems (AGIS). The plaintiffs hereby plead the Deposit Slip No 0021364 evidencing payment of N110,000 (One hundred and ten thousand Naira) only to the 1st and 2nd defendant and the Acknowledgement issued by the 1st and 2nd defendant dated 20/06/2005.
11. By a letter dated 05/10/2005, the 1st defendant without prior notice or fair hearing to the plaintiffs, purporting to exercise powers under Section 28(5) (a) and (b) served on the 1st plaintiff through the 2nd plaintiff a notice of revocation of the Certificate of Occupancy in respect of the property. The notice of revocation though dated 05/10/2005 was received by the 2nd plaintiff via DHL courier on 18/5/2006. The plaintiffs hereby plead and shall at the trial rely on the letter of revocation dated 05/10/2005.
12. On 22/05/2006, the 2nd plaintiff wrote a letter of appeal to the 1st defendant complaining about the purported revocation and requesting that the property should be reinstated to them. The plaintiffs hereby plead and shall at the trial rely on the letter of appeal.
13. The 1st and 2nd defendant have failed and/or refused to reinstate the property to the plaintiffs.
14. Sometime in December 2006, the plaintiffs discovered that the 3rd and 4th defendant, had trespassed the property, destroying the 2nd plaintiff’s fence and constructing their own fence instead.
15. The 2nd defendant reported the matter to the office of the Commissioner of Police, Federal Capital Territory Command Abuja. The plaintiffs hereby plead and shall at the trial rely on the letter of complaint written to the Commissioner of Police dated 28/12/2006.”

It is clear from the above facts that the cause of action in the instant case is the revocation of the 1st Respondent’s certificate of occupancy in Plot No. 6 Cadastral Zone B05, Utako – Abuja by the 3rd Respondent. According to the 1st and 2nd Respondents, the said revocation which was said to have been done pursuant to the powers of the 3rd Respondent under Section 28(5) (a) and (b) of the Land Use Act, was done without prior notice or fair hearing given to them.

The aim of the Public Officer (Protection) Act is to protect public officers who have acted pursuant to their duties from being slapped or harassed with stale claim and suits. See the cases of IBRAHIM V JSC (1998) 14 NWLR, PART 584, and FAJIMOLU V UNILORIN (2007) 2 NWLR PART 1017, 74.

By the provision of Section 2 of the Act, any action, prosecution or any proceeding commenced against any public officer shall be brought within three months of the act, neglect or default complained of or in the case of a continuing damage or injury within three months next after the ceasing thereof. See NIIA V AYANFALU (2007) 2 NWLR PART 1018, 26, EKEOGU V ALIRI (1991) 3 NWLR PART 179, 258.

The Court below in the resolution of the issue under controversy held at pages 224 – 245 of the record that:

“It is settled law that the Public Officers Act would not apply in cases of this nature because in Federal Government of Nigeria vs. Zebra Energy Limited (supra) the Supreme Court held among others that:

“…the Public Officers Protection Act is not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contact or claims for work and labour done.”

Also in Salako vs. L.E.D.B. & Another (supra) it was held that Public Officers Protection Act does not apply to cases of recovery of land…

It is my view that the authorities relied upon by learned Counsel for the 1st, 2nd, 3rd and 4th Respondents on this matter are not relevant. Therefore, the provisions of Section 2(a) of the Public Officers Protection Act relied upon by the learned counsel for the Respondent is not helpful to them.

In view of the foregoing, I agree with the submissions of learned counsel for the Appellants that the applicable law on limitation of time in an action for recovery of land within the Federal Capital Territory, Abuja is Section 15 of the Limitation Act, Cap, 522 Laws of the Federation of Nigeria.” The finding of the Court below is unassailable because this Court has held in a legion of cases that the provision of Section 2 (a) of the Public Officers (Protection) Act is not absolute and without its limitations. Such limitations are cases predicated on recovery of land, breach of contract or claims for work and labour done.

This Court in the case of CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT. & ORS (2020) LPELR-49565 (SC) held a similar view on the fact that the provision of Section 2 (a) of the Public Officers (Protection) Act does not apply to actions predicated on recovery of land or breach of contract. The facts of the case culminating into the instant appeal are on all fours with the decision of this Court cited above. In CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT. & ORS (supra), the Appellant instituted an action at the High Court of Ekiti State, Ado Ekiti challenging the decision of the Ekiti State Government revoking its fight of occupancy and subsequently allocating the said land to a third party. Both the High Court of Ekiti State sitting in Ado Ekiti and the Court of Appeal, Ado Ekiti Division declined jurisdiction holding that the suit was statute barred under Section 2 (a) of the Public Officers (Protection) Act. In allowing the appeal, my learned brother, Ejembi Eko JSC delivering the lead judgment held that:

“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 of setting aside the purported termination, and an order for specific performance. Osun State Government pleaded limitation afforded by the Public Officers Protection 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 C 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 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.” Per EKO, J.S.C (Pp. 6-9 paras. E)

I am in agreement with counsel for the 1st and 2nd Respondents that the action is predicated recovery of land simpliciter and not connected with the administrative or ministerial actions of the 3rd and 4th Respondents who are public officers as contended by the Appellants. See OSUN STATE GOVERNMENT V. DALAMI (supra); SALAKO V. L.E.D.B (supra).

On the strength of the decisions of this Court on the inapplicability of the Public Officers (Protection) Act to cases predicated on recovery of land, the sole issue distilled for the determination of the appeal is hereby resolved in favour of the 1st and 2nd Respondents and against the Appellants.

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I find no iota of merit in this appeal. Same is hereby dismissed. Consequently, the decision of the Court of Appeal, Abuja Division, delivered on 15th December, 2009 wherein the ruling of the High Court of the Federal Capital Territory, Abuja dismissing the 1st and 2nd Respondents’ suit for being statute barred is hereby affirmed. Costs of N2,000,000.00 is hereby awarded in favour of the 1st and 2nd Respondents and against the Appellants.

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SC.82/2010