Oko & Ors V. A.g., Ebonyi State (2021)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
The present appeal is consequent upon the judgment of the Court of Appeal, Enugu Judicial Division, delivered on July 15, 2015 in appeal No. CA/E/203/2013. By the said judgment the Court below, Coram M.A Oredola, T. S. Yakubu, and M. O. Bolaji- Yusuff, JJCA, dismissed the Appeal for lacking in merits.
BACKGROUND FACTS
The Appellants had the singular privilege of serving as the pioneer democratically elected councillors in the Ebonyi State Local Government system from 1999 to 2002. In the course of their tenure as councillors, the Appellants were duly paid their entitlement/allowances due thereto.
However, the Appellants were allegedly denied some entitlements for which they severally complained albeit after the expiration of the tenure thereof.
As law abiding patriots, the Appellants deemed it expedient to hearken to the due process procedure under the rule of law by instituting the instant action at the Ebonyi State trial High Court on December 6, 2010 vide a writ of summons. By the 17 paragraphed statement of claim thereof, filed along with the writ, the Appellants sought against the Respondent the following reliefs:
WHEREFORE Plaintiffs claim against the Defendant as follows:
LEGISLATIVE LEADER
Domestic Staff N25, 353.12k Monthly by 36 Months N912,712.32K
Special Assistance N8,451.04k Monthly by 36 months N304, 237.44K
Personal Assistant N8, 451.04k Monthly by 36 Months N304,237.44K
Accommodation A. N405, 680.00k Yearly by 3 years N1, 217, 040.00K
Furniture A. For a Tenure of 3 years N1, 216, 950.00K
Constituency A. N20, 282. 50k yearly by 3 years N60,847.50K
Severance A. For a Tenure of 3 years N1, 216, 950.50K
TOTAL N5, 232, 974.70k
DEPUTY LEGISLATIVE LEADER
Domestic Staff N25, 312.50k Monthly by 36 Months N911,250.00K
Special Assistance N8, 437.50 Monthly by 36 monthly N303, 750.00K
Personal Assistant N8, 437.50k by 36 Months N303, 750.00K
Accommodation A. N405, 000.00K 3years N1,215, 000.00K
Furniture A. For a Tenure of 3 years N1,215, 000.00K
Constituency A. N20, 250 yearly by 3 years N60, 750.00K
Severance For a Tenure of 3 years N1,215, 000.00K
TOTAL N5,224,50.00k OTHER COUNCILLORS EACH
(A) i. Domestic Servant Allowance N855, 085. 32
ii. Special Assistant Allowance N285, 028.20
iii. Personal Assistant Allowance N285, 028.20
iv. Accommodation Allowance N1, 140, 114.00
v. Furniture Allowance N1, 140, 114.00
vi. Constituency Allowance N57, 005.70
vii. Severance Allowance N1, 140, 114.00
TOTAL N4, 902, 489.40
(B). That payment for the above claim be made in the name of our Counsel – Dr. M.E. Ajogwu SAN or through him.
Not unexpectedly, the Respondent vehemently objected to the competence of the Appellant’s suit. By the Notice of preliminary objection thereof, dated and filed on 15/06/2012, the Respondent urged upon the trial High Court for the following fundamental reliefs:
- An Order striking out this suit for want of jurisdiction.
- And such other order or orders as the Court may deem fit to make in the circumstance.
A sole issue was raised by the Respondent for the determination of the said preliminary objection:
Whether the combined operation of the Limitation Law (Cap. 102) and Ebonyi State (ApplicabIe laws) law (Cap. 40), laws of Ebonyi State of Nigeria, 2009 does not divest this Court of jurisdiction to hear and determine this action as presently constituted, same having been filed well over five years after the accrual of the cause of the action.
On November 9, 2012 at the close of counsel’s address, the trial High Court delivered the vexed ruling in regard to the Respondent’s objection to the conclusive effect:
It is the view of this Court that Sections 18 and 42 of the Limitation Law of Ebonyi State and the Ebonyi State (Applicable Laws)(CAP.40) Laws of Ebonyi State which bar al (sic) other actions against Ebonyi State Government on the effluxion of five years from the accrual of the cause of action are applicable in this matter and that being the case, since this suit was instituted on 6/12/11 and the cause of action arose on (sic) 2002 immediately after the end of the tenure of the plaintiffs in 2002, the period is well over 5 years and thereby this suit is statute barred.
Whether or not the cause of action arose as a result of any Federal order or an Act will not insulate it from the relevant Limitation Laws. Therefore, having held that this suit is statute barred, the suit is struck out for want of jurisdiction by the Court to entertain it.
Not unnaturally, the Appellants were utterly dissatisfied with the ruling of the trial High Court. Thus, they appealed to the Court below, thereby urging the Court to allow the appeal and set aside the vexed ruling of the trial Court.
As evident on the face of the record, the Court below had dutifully heard the appeal and delivered the vexed judgment thereof on 18/06/2015, to the conclusive effect:
For all I have said, it is clear that issues 3 and 4 be resolved and they are resolved in favour of the respondent. And having resolved all the issues in the appeal against the appellants, the appeal failed. It is lacking in merits. I dismiss it, accordingly.
The ruling of BAN OGBU, J. delivered in the suit No. HAB/78/11 on 9th November, 2012, is hereby affirmed. Each side to bear own costs.
As a last resort, the Appellants filed the instant appeal on 15/07/2015. By the original notice of appeal thereof, the Appellants have solemnly urged upon the Court to set aside the judgment of the Court below, and accordingly allow the appeal.
On March 8, when the appeal ultimately came up for hearing, the learned counsel addressed the Court and accordingly adopted the articulated submissions contained in the respective briefs thereof. Thus, resulting in reserving the judgment.
Most particularly, the Appellants’ brief settled by Dr. ME Ajogwu, SAN on 09/11/2015, spans a total of 19 pages. At pages 3-4, three issues have been couched:
(1) Whether the Lower Court was right in construing the accrual of right per se to be coterminous with right of action or cause of action.
(2) Whether the Honourable Court below was right in construing the length of time when the cause of action accrued in utter disregard of the intervening effects of Exhibits ‘C’, ‘D’ and ‘H’.
(3) Whether the Limitation Law deals with accrual of right per se instead of limiting itself to the accrual of right of action or cause of action.
The issue No. 1 is argued at pages 4 – 8 of the said brief. In a nutshell, it is submitted that the crux of the issue is the real meaning of ‘right’, as different from what right can bring to us, and when such right can affect others. See Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 as amended, Section 6 (6) (a) (b) of the 1999 Constitution (supra); BLACK’S LAW DICTIONARY, 7th Edition @ 1322.
It is further submitted, that what happened to the Appellants in 2002 was accrual of rights perse; which gave them no right of action until they waited to exercise same and it was turned down. And that the rights that accrued to the Appellants remained therewith unviolated until they made the request in 2008. Thus, when their request was turned down, the Appellants were then given the right to go to Court, right and the cause of action (complaint). See DANGANA VS. GOVENOR OF KWARA STATE (2001) 50 WRN 40 @ 51; LASISI FADARE VS. AG OYO STATE (1982) ALL NLR (pt. 1) 26; (1982) FNLR 1; (1982) 4 SC 1 @ 6-7; SAVAGE VS. O. UWECHIA (1972) 3 SC 14.
It was posited that the declaration by the Revenue Mobilization, Allocation and Fiscal Commission, was at its best a declaration for existence of rights and not accrual of right of action or cause of action. That even then, the Appellants were not aware of the existence of the right until 4th of July 2008 when Exhibits ‘C’ & ‘D’ were made known to them and the road was not clear for them until relieved by’ Exhibit ‘H’.
The Court is urged to so hold.
The issue No. 2 is argued at pages 9-11 of the brief to the effect that Exhibits C & D were certified afresh and shown to the Appellants. Therefore, time could not have begun to run against them before they got the full knowledge of what was offered thereto. See JALLCO LTD VS. OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR (pt. 391) 534 @ 547; MUOMAH VS. SPRING BANK PLC (2009) NWLR (pt. 1129) 553 @ 572.
The Court is urged to hold, that time started to run with the arrival of Exhibits C & D, and the liberating effect of Exhibit H.
The issue No. 3 is canvassed at pages 11 – 14 to the effect that accrual of right is not co-terminus with accrual of cause of action. That the right must exist before it is breached by the defendant’s action. See WOHEREM VS. EMEREUWA (2004) 6-7 SC 161, et al.
Conclusively argued on issue 3 that it is the cause or action and not the accrual of right that is subject to limitation law, (and the limitation Act) which limits action after 5 years have elapsed does not affect the instant suit.
The Court is urged to so hold. Conclusively, the Court is urged upon to allow the appeal, set aside the judgment of the Court below and direct that the Appellants are within their time to bring the instant action.
Contrariwise, the Respondent’s brief of argument settled by Rt. Hon. Augustine Nwonkwagu Esq, on 07/04/2016 spans a total of 22 pages. At page 4 of the said brief, three issues have been couched:
3.02 Whether the Court below was wrong in holding that the cause of action in the instant case accrued in 2002 when the appellant left office at the expiration of their tenure of office as councillors?
3.03 Whether the documentary Exhibits C, D and H have the legal clout to override Law 005 of 2002 being a law validly enacted by the House of Assembly of Ebonyi State, and if not, whether Exhibits C and D made in 2001, and Exhibit H made in 2010, to which the respondent did not reply could be seen as constituting an intervening negotiation/documents capable of shifting the period of accrual of a cause of action?
3.04 Whether appellants can effectively rely on the case of Salako Vs L.E.D.B, a case decided under the Public Officers Protection Ordinance as authority for exempting their claims from the operation of the Ebonyi State Limitation Law, 2009, and if the answer is in the affirmative, whether it is not too late in the day for them to argue this point.
The issue No. 1 is argued at pages 4-12 of the Respondent’s brief. It is submitted in the main that the Local Government Council Elections in Ebonyi State were conducted on 05/12/1998. The elected councillors (Appellants’ inclusive) were sworn in 1999 for three years tenure terminating in 2002.
Further submitted that, there is no disagreement as to the period the Appellants became councillors and the fact that they had several heads of entitlements, some of which they enjoyed while in office, some they ought to have enjoyed on leaving office.
Firstly, in regard to the point at which these rights became ripe, it is submitted that there is no gainsaying the fact that the last of the 4 rights severance allowance became ripe in 2002, all the duties enabling them to earn the allowances having been performed and concluded.
As to the second question, when the rights accrued and the proper time for the Appellants to sue for same, it is submitted that the non payment of the severance entitlements climaxed in 2002, when the Appellants left office and their severance allowances were not paid.
Thirdly, that Exhibits C & D were rebutted by the Respondent who went ahead to enact Law No. 005 of 2002. It is argued that this was a good time for the Appellants to test the validity of the law. Allegedly, the Appellants reclined and waited till 2011, at least 10 years after the last of the alleged denials, before they approached the Court for redress.
Further argued, that the Court below did not equate accrual of right with right of action and that it’s the accrual of cause of action that confers on the aggrieved party the right to institute an action to enforce that right. See BALA HASSAN VS. BABANGIDA ALIYU (2010) 43 NSC 219@ 241 et al.
It was postulated, that it’s interesting to note that Exhibits E, F and G (pages, 133, 134 and 135 of the Records of Appeal) were made on 23/05/2008, 27/05/2008, and 22/04/2008, while Exhibits C and D made in 2002 were said to be brought to Appellants’ knowledge on 04/07/2008 thereby raising the question as to whether it’s possible the Appellants became aware of their benefits about 3 months after they had written for something they were not aware of: a case of inconsistent and illogical argument. The Court is urged to so hold. See KALANGO VS. GOVERNOR OF BAYELSA STATE (2009) 37 NSCQR 42.
The issue No.2 is argued at pages 12-17 of the Respondent’s brief to the conclusive effect that the presence of Exhibits C-D made in 2001 but certified in 2008, and Exhibit H made in 2010, did not whittle down the effect of the Law No. 005 of 2002, which was to exempt the Appellants from severance allowances and other benefits as contained therein.
The Court is urged to so hold.
The issue No. 3 is argued at pages 17-19 of the said brief to the conclusive effect that the instant action was commenced in 2011, two years after the coming in to effect of the Limitation law of Ebonyi State. That neither the Public Officers Protection Ordinance nor its successor, the Public Officers Protection Act is a valid law of reference in this action. See NZE BERNARD CHIGBU VS. TONIMAS NIG LTD (2006) SCNJ 262; CPC VS. OMBUGADU (2013) 55 NSCQR 570; CONTRACT RESOURCES VS. STB (2013) 53, 2 NSCQR 600.
In the circumstances, the Court is urged to expunge the Appellants’ argument seeking exemption of the case thereof from the application of the Limitation Law CAP. 102 Laws of EBONYI STATE, 2009.
Conclusively, the Court is urged to dismiss the appeal and affirm the Judgment of the Court below.
Having amply considered the circumstances surrounding the instant case, the submissions of the learned counsel contained in the respective briefs thereof vis-a-vis the Record of Appeal, I am amenable to adopting the 3 issues canvassed by the Appellants in the brief thereof for ultimate determination of the appeal, anon.
PRELIMINARY OBSERVATION
It’s obvious on the face of the records of appeal that the original notice of appeal (pages 301 – 304) is predicated upon a couple of grounds, viz:
- GROUNDS OF APPEAL
i) The lower Court erred in law when it misconstrued accrual of right to be the same thing as accrual of right of action.
PARTICULARS OF ERROR
…
ii) The lower Court erred in law when in construing the effective period of limitation it closed its eyes to the legal effects of Exhibit ‘D’ and Exhibit ‘H’.
PARTICULARS OF ERROR
…
So far, there is no indication from the records that the Appellants rely on grounds other than those two upon which the original notice of appeal is predicated. Thus, it would tantamount to breaching the fundamental rules of procedure and practice for the Appellants to now raise a total of three issues from the two grounds in question. Undoubtedly, the Appellants have disposed themselves to the unpardonable practice of proliferation of issues. Proliferation of issues is highly deplorable. In drafting grounds of appeal and issues for determination, counsel must at all times avoid proliferation of issues and this is done by distilling a sole issue from one or more grounds of appeal, thereby avoiding multiplicity of issues from the same ground. See BILLE VS. THE STATE (2016) LPELR- SC 578/2013 @ 7 Paragraphs B – C; NWAIGWE VS OKERE (2008) 5 -6 SC (Pt. 11) 93; INEGBEDION VS. SELO-OJEMEN (2013) 1 – 2 SC (Pt. 11) 59; UGO VS. OBIEKWE (1989) 2 SC (Pt. 11) 41.
Most regrettably, none of the three issues raised by the Appellants (nay the Respondent) in the brief thereof specifically relates to any of the two grounds in question, yet, the essence of relating issues to ground of appeal is not merely important but fundamental. Thus, once an issue is resolved in favour of the Appellants, the ground relating to that issue automatically succeeds thereby resulting in allowing the appeal. See JOSIAH CORNELIUS LTD VS. EZENWA (1996) LPELR – SC 102/1994; UGO VS OBIEKWE (1989) 1 NMLR (Pt. 99) 566; ZABUSKY VS ISRAELI AIRCRAFT IND. (2008) NWLR (Pt. 1070) 109 @ 131 Paragraphs D — G.
In the circumstances, I am of the considered view that there is only one crucial issue that could appropriately be said to have arisen from the two grounds of appeal:
Whether or not the Court of Appeal, Enugu Judicial Division was right when it held that “the cause of action clearly accrued as at the time the appellants left office at the expiration of their tenure of office as councillors in 2002” thereby resulting in dismissing the Appellants appeal on the ground that their suit was statute barred.
DETERMINATION OF THE SOLE ISSUE ARISING FROM BOTH GROUNDS 1 & 2 OF THE NOTICE OF APPEAL.
Instructively, the vexed judgment of the Court below spans a total of 24 pages (277 – 300) of the record of appeal. After summarising the argument of the learned counsel to the respective parties, the Court proceeded in earnest to determine the crucial issue raised in the appeal (pages 290 — 297 of the record).
Literally, the noun ’cause’ simply means to bring about or effect. A ’cause of action’ invariably denotes a combination (group) of operative facts thereby resulting in one or more bases for suing. In a sense, a cause of action is a factual situation that entitles one person to a remedy in Court from another person. Jurists all over the common law world had found it difficult, if not impossible, to accord a proper definition to the most perplexing term – ’cause of action’. Cherishingly however, Edwin Bryant, over a century ago offered some respite. According to the 19th century erudite jurist, a cause of action:
[M]ay be defined generally to be a situation or state of facts thereby entitles a party to maintain an action in a judicial tribunal. This state of facts may be — (a) a primary right of the plaintiff actually violated by the defendant; or (b) the threatened violation of such right, which violation the plaintiff is entitled to restrain or prevent, as in the case of actions or suits for injunction; or (c) it may be that there are doubts as to some apparent adverse right or claim which the plaintiff is entitled to have cleared up, that he may safely perform his duty, or enjoy his property.
See Edwin E. Bryant: THE LAW OF PLEADINGS UNDER THE CODES OF CIVIL PROCEDURE (1899) 2nd edition @ 170; BLACK’S LAW DICTIONARY, I edition (2019) @ 275.
Undoubtedly, it was this master piece definition of ’cause of action’, as enunciated by Edwin Bryant over a century ago, that was adopted by renown jurists all over the common law world. See LAGOS STATE BULK PURCHASE CORPORATION VS PURIFICATION TECHNIQUES NIGERIA LTD (2012) 521 NSCQR 274 @ 292; YARE VS NATIONAL SALARIES WAGES AND INCOME COMMISSION (2013) 12 NWLR (Pt. 1367) 173 @ 186; et al.
Contrary to the Appellants’ postulation, the Court below was not oblivious to the apparent disparities that naturally exist between a right of action, on the one hand, and a cause of action, on the other.
As aptly postulated by the Court below (page 292, lines 6 — 25 of the record):
“The parties are ad idem that a right is different from a cause of action and the former precedes the latter. I agree with both of them.”
In the instant case, as aptly found by the Court below (page 293), the Appellants in the course of their service and tenure as councillors were duly entitled to some emoluments — otherwise termed salaries and allowances:
“In that regard, Exhibit C (REVENUE MOBILAZATION ALLOCATION AND FISCAL COMMISSION CIRCULAR, dated 07/11/2001) is very much instructive. Exhibit C was unusably addressed to the following distinguished public officials:
- Deputy Chief of Staff to the Vice President,
- Speakers of State House of Assembly,
- Bureau for Local Government Affairs,
- Auditors — General for Local Governments,
- Local Government
- And Legislative Leaders.
What’s more, the heading (main theme) of Exhibit C is most explicit:
“EXPLANATORY NOTES ON CONCILLORS REMUNERATIONS PACKAGE.”
Exhibit C spans a total of three pages (pages 127 – 129 of the record). It was duly signed by the then Chairman of the RCMAF Commission, in the person of Engr. Hamman A.
Tukur mni, to the conclusive effect thus:
The Commission in accordance with the provisions of the 1999 Constitution has reviewed the Remuneration of Political and Public Affairs Office Holders. A report on this has been forwarded to Government for implementation.
…
- There is also the vehicle loan which has to be repaid in full; while the furniture allowance is paid enbloc only once in the councillor’s tenure. The severance gratuity is paid enbloc at the end of the councillor’s successful tenure. Prorata gratuity is not parable. These are shown in table C.
- It is our hope that you will find these explanatory notes useful in addressing these contentious issues and note that this circular is also copied to all stated Executive Governors for their information and necessary action.
Exhibit D (pages 130 — 132 of the record) reads:
A. LOCAL GOVERNMENT REMUNERATION PACKAGE FOR POLITICAL OFFICE HOLDERS:
ANALYSIS OF PERSONAL MONTHLY EMOLUMENTS
…
B. LOCAL GOVERNMENT REMUNERATION PACKAGE FOR THE POLITICAL OFFICE HOLDER;
ANALYSIS OF NON PERSONAL MONTHLY EMOLUMENTS.
…
C. LOCAL GOVERNMENT REMUNERATION PACKAGE FOR
POLITICAL OFFICE HOLDERS:
ANALYSIS OF MONETISED BENEFITS
It is pertinent to equally allude to some of the other exhibits relied upon by the Appellants in the course of the trial of the case:
EXHIBIT E: (page 133):
Dated 23/05/2008:
TITLED: RE INFORMATION PAYMENT OF REMUNERATIONS PACKAGE TO FORMER COUNCILLORS”
- EXHIBIT F: (Page 134) Dated 27/05/2008
- EXHIBIT H: (Page 136-137)
- EXHIBIT I: (Page 138-140) Dated 06/04/2011.
“NOTICE OF INTENTION TO COMMENCE SUIT”
At page 10 (Paragraph 4.03) of the brief thereof, the Appellants alleged that until the July 4, 2008, they had not become aware that the offer of Severance Allowance was available thereto and that on the date in question, following the arrival of Exhibits C, D and H, that the cause of action accrued. What’s more, it was posited that —
The Appellants were not communicated directly of their rights in 2002, all they knew was that the State Government had blocked a venture by the Federal Government to give them a severance package. The real letter communicating rights to severance package was certified and dated of 4th July, 2008.
However, the Court below apparently is impervious to the Appellants’ argument. According to the Court below (page 295 — 296 of the record):
Exhibits C and D clearly indicate the earned entitlements of the appellants. In other words, their right to be paid their earned entitlements as per Exhibits C and D gave them the right to litigate on that cause of action, that is, the failure of the respondent to pay them their earned entitlements, as councillors.
It is instructive, that Exhibits C and D were made on 7th November, 2001. They were certified on 4th July, 2008 and not that they were made on 4th July, 2008 as conversed by learned senior counsel to the appellants therefore, can it be rightly said that the cause of action clearly accrued on 4th July, 2008? Certainly not? The cause clearly accrued as at the time the appellants left office at the expiration of their tenure of office as Councillors in 2002. The facts that the appellants were aware of their earned entitlements which were not paid by the respondent who took steps to block the payments in 2002 is evident at paragraph 20 of the appellants’ counter affidavit …
The Court below equally alluded to Exhibits E and F (pages 133 – 134 dated 23th and 27th of May, 2008), to the effect that:
[T]he appellants were aware of their right to their earned salaries and allowances that were not paid to them perhaps, if the appellants had sued qua timet on their entitlement and nevertheless, contemporaneously engaged in correspondences and negotiations, they would not have lost their right of action on this matter.
…what a pity for crying “wolf” when the head is off!
In my considered view, the foregoing findings of the Court below are cogent, unassailable and duly supported by the pleadings of the respective parties and evidence on record.
Invariably, the noun ‘right’ literary means that which is proper under law, morality, ethics, et al; in contradiction to wrong; know right from wrong.
Jurisprudentially, the term ‘right’ denotes something that is due to a person by just claim, legal guarantee or moral principle — the right of liberty; a power, privilege, or immunity accorded a person by law the right to dispose of one’s property or estate; a legally enforceable claim that another will do or will not do a given act; the interest, claim, or ownership that one has in tangible or intangible property; the privilege of corporate shareholders to purchase newly issued securities in amount proportionate to their respective holdings. According to Gray:
The right is correlative to duty, where there is no duty there can be no right. But the converse is not necessarily true. There may be duties without rights. In order for a duty to create a right, it must be a duty to act or forbear. Thus, among those duties which have rights corresponding to them do not come the duties, if such there be, which call for an inward state of mind, as distinguished from external acts or forbearances. It is only to acts and forbearances that others have a right. It may be our duty to love our neighhour; but he has no right to our love.
See John Chipman Gray: NATURE AND SOURCES OF THE LAW edition 1921 @ 89, copiously alluded in BLACK’S LAW DICTIONARY, edition 2019 @ – 1582.
IN AMERICAN BANK & TRUST CO. VS. FEDERAL RESERVE BANK OF ATLANTA (1921) 256 @ 500 US. 350, 358, 41 SC et 499 @ 500, the US Supreme Court aptly held:
“[T]he word ‘right’ is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified.”
Undoubtedly, the term ‘right’ has been a subject of definitions in quite a plethora of authorities by this Court. In the case of SHITTA-BEY VS PUBLIC SERVICE COMMISSION (1981) LPELR — SC. 57/1980, this Court aptly postulated regarding the definition and characteristics of right:
Again, it seems to me that Exhibit “D” invests the Appellant with a legal right to remain in office and carry out his public duties as a civil servant; and one of the characteristics of a legal right is in the word of Salmond “that” it avails against a person upon whom lies the correlative duty. He may be described as the person bound or as the subject of the duty or as the person of incidence (See Salmond on Jurisprudence 12th Edition (1996) P. 221, Paragraph 41 (item 2).
Per Idighe, JSC@ 38 paragraphs E — G.
Again, in the case of AG of Lagos State Vs. AG FEDERATION (2004) LPELR – SC 70/2004, this Court aptly postulated:
What is legal right? A legal right in my view, is a right recognisable in law. It means a right recognised by law and capable of being enforced by the plaintiff. It is a right of a party recognised and protected by a rule of law, the violation of which would be a legal wrong done to the interest of the plaintiff; even though no action is taken. The determination of the existence of a legal right is not whether the action will succeed at the trial but whether the action denotes such a right by reference to the enabling law in respect of the commencement of the action.
Per Niki Tobi, JSC @ 97-98 paragraphs G — B.
As aptly found by the Court below in the instant case, the action was statute barred for having been filed outside the statutory time limit. The Court below was absolutely right, in my view. Indeed, the doctrine is well settled beyond peradventure, that the law provides for commencing an action within a prescribed period in regard to a cause of action accruing to the plaintiff, proceeding shall not (ought not) be brought after the time so prescribed by the statute (has lapsed). See EGBE VS ADEFARASIN (1985) 1 NWLR (Pt. 3) 549 @ 568 – 569:
An action brought outside the prescribed period offends against the provision of the section and does not give rise to a cause of action. A cause of action means the factual situation stated by the Plaintiff, if substantiated, entitle him to a remedy against the defendant. See Latana Vs. Cooper (1964) 2 All ER 929. The claim must rest on and be supplied by a cause of action.
Of course, the foregoing trite fundamental doctrine is not devoid of an exception thereto. As aptly pontificated by this Court in HASSAN VS ALIYU (2010) LPELR SC 170/2009, the exception duly applies:
Where the public officer concerned fails to act in good faith or acts in abuse of office or maliciously, or with no semblance of legal justification as decided in the cases of Lagos City Council vs. Ogunbiyi (1969) All NLR 297 at 299; CBN VS OKOJIE (2004) 10 NWLR (Pt. 882) 448 AT 523; NWANKWO VS ADEWUNMI (1966) All NLR 119 at 192; Offoboche vs. Ogoja Local Government (2001) 16NWLR (Pt. 739) 458.
Per Onnoghen, JSC (as he then was).
Most instructively, as aptly postulated above, the effect of limitation on the action is that it takes away the Plaintiff’s right to institute the action, but leaving him with his cause of action intact albeit devoid of the right to some judicial relief.
As aptly reiterated in HASSAN VS ALIYU (supra);
when an issue of limitation of time to institute an action is raised, it is a preliminary issue touching on the competence of not only the action, but of the Court before which the action pends. It is long settled that an issue of jurisdiction is a periphery matter which must be resolved before proceeding to determine the merits of the case, where the issue is found not have any merit…
It is trite that jurisdiction is very fundamental to adjudication and where a Court lacks the competence to hear and determine a matter but proceeds to do so, an appellate Court is duty hound to nullify a decision resulting therefrom.
Per Onnoghen, JSC (as the learned Lord then was).
In the instant case, the Court below wisely hearkened to the formidable ‘Voice of’ wisdom’ and arrived at the most inevitable conclusion in the vexed judgment:
“And having resolved all the issues in the appeal against the appellants, the appeal failed. It is lacking in merits. I dismiss it, accordingly.”
My noble Lords, against the backdrop of the foregoing postulations, it has become rather obvious that the sole issue (distilled from the Appellants’ two grounds of the original notice of appeal), ought to be, and same is hereby resolved against the Appellants.
Thus, having resolved the sole issue against the Appellants, there is no gainsaying that the appeal resultantly fails, and same is hereby dismissed by me.
Consequently, the judgment of the Court of Appeal, Enugu Judicial Division, delivered on June 18, 2015 in appeal No. CA/E/203/2013, is hereby affirmed.
There shall be no order in regard to costs.
Before placing the very last dot to the instant judgment, I have deemed it compellingly expedient to say that the Appellants were solely responsible for the predicament thereof. As aptly alluded to by the Court below in the vexed judgment, the Appellants had not been vigilant enough in pursuing the rights vis-a-vis the prosecution of the case thereof. Yet, the biblical truism is indeed trite, that the fundamental condition upon which the Almighty God, the Beneficent graciously accorded man liberty is ETERNAL VIGILANCE. Thus, the well cherished equitable doctrine VIGILANTIBU ET NON DORNTILNTIBUS JURA SERVENIAM – The laws aid the VIGILANT, not the INDOLENT!
In that sense, the Legendary William Shakespeare must have been absolutely not far from the truth, when he lyrically philosophised:
The enemy increases every day,
We, at the height are ready to decline.
There is a tide in the affairs of men.
Which taken at the flood leads on to fortune.
Omitted, all the voyage of their life is bound in
shallows and in miseries.
See JULIUS CAESER (‘KAISER’; properly so pronounced) Act IV, SCENE 3; AROMIRE VS. AJOMAGBERIN (2011) LPELR —3809 (CA) Per Saulawa, JCA (as he then was).
SC.565/2015
