(2018) LPELR-45695(CA)

Transcription

1 OLUTADE v. BAMIGBOYE & ORS CITATION: In the Court of Appeal In the Ilorin Judicial Division Holden at Ilorin MOJEED ADEKUNLE OWOADE CHIDI NWAOMA UWA HAMMA AKAWU BARKA ON FRIDAY, 29TH JUNE, 2018 Suit No: CA/IL/44/17 Before Their Lordships: Between H.R.H. OBA JOSHUA OLUTADE, ONIWO OF IWO (FOR HIMSELF AND THE ENTIRE IWO-ISIN COMMUNITY) And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s)

2 1. H.R.H. OBA (PROF.) EZRA B. BAMIGBOYE (ELEKU OF ODO-EKU-ISIN) 2. CHIEF PETER O. AJIBAIYE (ASIWAJU OF ODO-EKU-ISIN) 3. CHIEF JOEL AFOLAYAN (AJIROBA OF ODO-EKU-ISIN) 4. CHIEF JAMIU BUREMOH (OLOWIN OF ODO-EKU- ISIN) 5. PRINCE JOHNSON B. BAMIGBOYE 6. MALLAM SULEIMAN OGUNBIYI (FOR THEMSELVES AND THE ENTIRE ODO-EKU-ISIN COMMUNITY) 7. ALHAJI ALABI AMUDA (CHAIRMAN, KWARA STATE GOVERNMENT BOUNDARY COMMITTEE) 8. SURVEYOR AFODUN (MEMBER KWARA STATE GOVERNMENT BOUNDARY COMMITTEE) 9. MR. SUNDAY OLADIJI (MEMBER KWARA STATE GOVERNMENT BOUNDARY COMMITTEE) 10. ALHAJI UMAR (MEMBER KWARA STATE GOVERNMENT BOUNDARY COMMITTEE) 11. MR. S.B. SULEIMAN (SECRETARY, KWARA STATE GOVERNMENT BOUNDARY COMMITTEE) RATIO DECIDENDI - Respondent(s)

3 1. LIMITATION LAW - LIMITATION OF ACTION: Application of limitation law to application for judicial review "The appellants' issue one is similar to that of the respondents which is: whether the cause of action of the claimants/1st - 6th Respondents is not statute barred? The appellants contend that the action of the claimants (now 1st - 6th Respondents) was statute barred from the combined effect of Section 29 of the National Boundary Commission (Establishment) Act, Section 2(a) of the Public Officers' Protection Act and Order 48 Rule 4(2) and (3) of the Kwara State High Court (Civil Procedure) Rules, 2005 which all provide a period of three (3) months for the institution of the type of action that led to this appeal. From the records of Court, the learned trial judge acknowledged the applicability of these laws which narrows down the appellants' issue one. The only issue now is when the permitted time commenced? The learned trial judge found that the time the Ex-parte application for leave to apply for judicial review is the time to be reckoned with in the determination of the question whether or not the matter is statute barred as against the time the substantive application was filed, at paragraph 6, page 368 and paragraph 5 of page 369 of the records of appeal. The decision being challenged was read on 10th of February, 2010, there is no dispute about this date. Also, that the 1st - 6th Respondents' ex-parte application dated 7th May, 2010 which sought the leave of the Court to apply for judicial review by way of centiorari was heard and granted on the 1st day of June, 2010 following which the substantive application was filed. It is therefore evident and not disputed that as at 1st June, 2010 when the ex-parte application was granted and 10th June when the substantive application was filed, three months period had lapsed. The trial Court relied on the ex-parte application in computing when action was taken. But, looking at the ex-parte application on the face of it, simply sought "leave to seek the following Reliefs:" the reliefs were thereafter listed which included declaratory reliefs as well as to quash the proceedings and decision of the 7th - 11th Respondents constituted as the Kwara State Boundary Committee of 10th February, 2010 in the dispute between the two communities, pages 1-16 of the printed records of appeal. In other words, what was sought was leave to file the substantive application. If granted, the applicants would proceed to commence their action by filing the Motion on Notice or summons whatever the case may be, as provided under Order 48 of the Rules of the Court. Where it is refused, it ends there and the applicant would be unable to commence any action. To my mind the action can only commence after the grant of the leave. Order 48 Rule 3 of the Rules provides that: 3(1) "No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule." It cannot therefore be rightly argued that the commencement of the substantive application for judicial review would be from the date the application for leave was sought as argued by the learned Senior Counsel. The lower Court was wrong to have computed the date the action was filed from the date the leave was sought to hold that the action was filed within the time allowed, ninety (90) days. On the other hand, the grant of the leave is not automatic on application, the Court would at that stage examine whether a prima facie case has been made out for an application for an order of certiorari. In the application for leave, the applicant would have to disclose some injury done to him for which he seeks a redress, which would be highlighted in the affidavit in support of the application for leave. At that stage, the trial Court would limit its decision to the ex-parte application only and would not touch or pronounce on the substantive application not yet before him. See, UGOH VS. BENUE STATE L.G.S.C. (supra) and TABAI VS. THE V.C., R.S.U.S. & TECH (supra). In simple language or definition, "leave of Court" means judicial permission to do something. It cannot be taken to be the doing of what "leave" is sought to be done. Where the leave is granted, then the next stage is to make the substantive application, which is the date the action would be reckoned to have commenced. The purpose for the application for leave to precede the application for a judicial review (as in the present case) was explained by the Supreme Court by his lordship, Craig, JSC in IGBOHO, IREPO LOCAL GOVERNMENT COUNCIL and COMMUNITY VS. THE BOUNDARY SETTLEMENT COMMISSIONER & ANOR (1988) LPELR (SC) P. 28, PARAS. D - G (also reported in (1988) 1 NWLR (PT. 69) P. 189 and (1988) ANLR P. 111) held that: "In this respect, it must be borne in mind that an application for judicial review is effected by two distinct steps: 1. The applicant files an application for leave to apply for the judicial review in this case, an order of certiorari. This application is made ex-parte. 2. If the applicant shows a prima facie case, and leave is granted, then he would file an application for an order of certiorari to issue. This is by Motion on Notice to the Respondents in the case. See, REG. VS. I.R.C. EX - PARTE FEDERATION OF SELF-EMPLOYED and SMALL BUSINESS LIMITED (1982) AC 617 at 642." (underlined mine for emphasis) See also OFFOR and ORS VS. HIS WORSHIP M.D. KANU ESQ (2016) LPELR (CA) PP D - A. It is clear then, that the date of filing the substantive process would determine the commencement of the action for certiorari. I agree with the learned counsel to the appellants that the trial Court was wrong to have held that the ex-parte application is the initiating process in the matter. At page 368 of the printed records of appeal, the learned trial judge rightly determined when the computation of the ninety (90) days should commence, which is the day following the decision/report of the committee of 10th February, Commencement date was rightly held to be 11th February, 2010 and to end on 10th May, 2010 which is the last date the Respondents as applicants had to file their application. The trial judge rightly held thus: "In the light of the foregoing authorities, in calculating the three (3) months period prescribed for filing an action against the proceedings, report, judgment or decision of the Kwara State Government Boundaries Committee by law, the date 10th February, 2010 on which the said committee delivered its report, judgment/decision must be excluded. Consequently, the calculation must commence on the 11th February, 2010 and three (3) months from that date would ordinarily end at midnight of the 10th May, See, AZEEZ AKEREDOLU & ORS VS. LASISI AKINREMI (1985) NWLR (PT. 10) 787 and ACN VS. INEC (2014) ALL FWLR (PT. 716) 460. In my view, in law and fact, the applicants herein had up to the midnight of the 10th May, 2010 to file their action against the report, judgment/decision of the Kwara State Government Boundaries Committee." But, the learned trial judge wrongly held that the commencement of the action/application was from the date the ex-parte application for leave to apply for judicial review by way of certiorari was filed, on 10th May, 2010 to conclude that the applicants' suit was filed within the period prescribed for so doing. The trial Court erroneously held thus: "Hence having filed their ex-parte application for leave to apply for judicial review by way of certiorari which in my opinion is the originating or initiating process in this case before midnight on 10th May, 2010, applicants' suit was filed within the period of time prescribed for so doing." I hold that the above computation is wrong. The learned trial judge concluded at page 369 of the records thus: "Be that as it may, it is not open to any argument that the applicants' suit was initiated, instituted or filed within the period prescribed by the relevant law(s). It is therefore clear to me that this suit is not caught up by any of the limitation laws relied on by the respondents in this case. It is competent and valid and I so hold." The above conclusion by the learned trial judge is also erroneous. The learned trial judge was wrong to have relied upon and equated this case with the situation in IYOHO VS. OFFIONG (supra) which dealt with a situation where an application for judicial review was filed within the period allowed for appeal. The Court frowned at such application because it implied that if allowed and an appeal is filed, it would be in existence at the same time as the application for judicial review. The refusal is to avoid duplicity of actions, that is, an appeal being filed at the same time, the possibility of judicial review being filed within the period to appeal. The above case is not applicable. On the other hand, I am of the humble but, firm view that the application ex-parte and the application on Notice for judicial review should have been filed within the period allowed, that is ninety (90) days from the date of the decision/report of the committee. In the present case, the substantive application was filed by the 1st - 6th Respondents on 10th June, 2010 following the grant of the application ex-parte on 1st June, The commencement date of action was on 10th, June, 2010 which is outside the ninety (90) days prescribed. The resultant effect is that the action is statute barred. The action having become statute barred the lower Court had no jurisdiction to have entertained the matter. The 1st - 6th Respondents (as applicants) failed to invoke their right of action in time and ran the risk of the extinction of such a right of enforcement and of entitlement to a judicial relief. See, ASABORO AND ANOR VS. PAN OCEAN OIL CORPORATION (NIG) LTD and ANOR (2017) LPELR (SC) per Nweze, JSC, at PP , PARAS. B - E, A.C.B. PLC VS. N.T.S. (NIG) LTD (2007) 1 NWLR (PT. 1016) 596, 637, IBRAHIM VS. JSC KADUNA (1998) 12 KLR (PT. 73) In the case of OSUN STATE GOVERNMENT VS. DALAMI NIGERIA LTD (2007) LPELR (SC) P. 11, PARAS. C - E, his lordship Katsina Alu, JSC (as he then was) simply defined an action that is statute barred thus: "The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is commenced after the prescribed period is said to be statute barred. See, IBRAHIM VS. J.S.C. (1998) 14 NWLR (PT. 584) 1." Similarly, in INEC v. OGBADIBO LOCAL GOVT. & ORS (2015) LPELR (SC) P. 35, PARAS. D - F, his lordship Onnoghen, JSC (as he then was) reiterated and emphasized in the same way that: "It is settled law that a limitation law, such as the provisions of Section 2 (a) of the Public Officers Protection Act, takes away the legal right of a litigant to enforce an action leaving him with an empty shell of a cause of action where the action is not instituted within the time frame enacted in the statute of limitation. Where the action is instituted outside the time so allotted by the statute, we say that the action so instituted is statute barred and cannot be maintained since it robs the Court of the jurisdiction to entertain and determine same." The limitation of action statutes usually make provisions to limit the period of time within which an action in certain cases can be enforced or protected through the judicial process of the Courts. Where a statute prescribes a period within which an action must be commenced or initiated, the proceedings cannot be properly and validly commenced or initiated after the expiration or outside the prescribed period for the enforcement or protection of such right. A statute of limitation therefore removes the right of action, enforcement and judicial relief. In the case of DUZU and ANOR v YUNUSA & ORS (2010) LPELR (CA); (2010) 10 NWLR (PT. 1201) P. 80 this Court gave the rationale behind the limitation of actions generally to include the following:- (1) long dormant claims have more of cruelty than justice in them; (2) a defendant might have lost the evidence to disprove a stale claim; (3) persons with good causes of action should pursue them with reasonable diligence. Reliance was placed on LLOYD VS. BUTLER (1950) 1 KB 76 and JONES VS. BELLGROVE PROPERTIES LTD (1949) 2 KB, 700, AREMO II VS. ADEKANYE (2004) ALL FWLR (PT. 224) 2113 at 2131, NPA VS. AJOBI (2006) 7 SC (PT. 1) 23; (2006) 13 NWLR (PT. 998) 477 and AMUSAN VS. OBIDEYI (2005) 6 SC, 147 amongst others. From all that I have said, the trial Court was wrong to have held that the 1st - 6th Respondents' action at the lower Court was not statute barred; I am of the contrary view and hold that it was. Therefore, the trial Court had no jurisdiction to have entertained the matter."per UWA, J.C.A. (Pp , Paras. B-C) - read in context

4 CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Kwara State High Court delivered on the 15th December, 2016 by E.B. Mohammed, J, in which the learned trial judge dismissed the preliminary objections of both sets of Defendants and found amongst other things that the decision of the Kwara State Boundary Committee was bereft of and conducted in breach of fair hearing. The lower Court was invited by the claimants now the 1st 6th Respondents to exercise its powers of judicial review and issue an order of certiorari against the proceedings and decision of the Kwara State Boundary Committee vide an ex parte application for leave filed on 10th May, The application was heard and granted on the 1st day of June, The claimants (1st 6th Respondents) filed the substantive application on 10th June, 2010, premised on eight (8) grounds and supported by two sets of affidavits and some documents. The 7th Defendant (now Appellant) and the 1st 6th Defendants (now 7th 12th Respondents) filed separate responses and each raised a 1

5 preliminary objection on grounds of Statute of Limitation. The 7th 12th Respondents also challenged the composition of the suit being instituted against members of the Commission/Committee in their individual capacities. The background facts on the part of the appellant, are that Iwo-Isin (represented by its Traditional Ruler the Appellant) and Odo-Eku-Isin (represented by its Traditional Ruler and other indigenes, the 1st 6th Respondents) are communities sharing common boundaries in Isin Local Government Area of Kwara State. The two communities have had boundary disputes which resulted into a long history of hostilities. Sometime in 2005, the Appellant s Community filed a petition to the Kwara State Boundary Committee, a committee created under the National Boundary Commission (Establishment) Act and the Local Boundary Settlement Law of Kwara State for the determination of the boundary disputes. By virtue of the enabling Laws such committees are statutorily under the Chairmanship of an existing Deputy Governor of the State. At the time of the submission of the petition, the Deputy Governor of Kwara State, was Chief Joel Ogundeji, an 2

6 indigene of the Appellant s Iwo Community. A technical sub-committee was set up amongst members of the statutory committee, excluding the Deputy Governor, to determine the Boundary Dispute and submit its Decision to the Governor for approval or otherwise. The Technical sub-committee took oral and documentary evidence from the parties and their respective witnesses. On completion of their task, the committee submitted their findings and decision to the Governor of Kwara State for his directives. The directives came up about four (4) years later, by which time some of the members of the subcommittee had retired, which prompted the setting up of new members of the committee to read and implement the approved decision of the original Technical sub-committee on 10th February, 2010 in the presence of both parties. The claimants (now 1st 6th respondents) who were dissatisfied with the findings and decision, took out an action as representatives of Odo-Eku-Isin Community at the High Court against the members of the Kwara State Boundary Committee who read out the decision and the Appellant on behalf of his community, praying the Court to issue an order of certiorari against the 3

7 decision of the Technical Sub-committee. The Court granted the prayers sought, thus this appeal. From the appellant s grounds of appeal, five (5) issues were distilled for the determination of the appeal as follows: ISSUE ONE: Whether the cause of action of the 1st 6th Respondents (Claimants at the lower Court) is not statute barred. Grounds 1 and 2 of the appellant s Notice of Appeal. ISSUE TWO: Whether there are proper parties before the lower Court to have conferred jurisdiction on it to determine the issues raised in the matter. Grounds 4, 5 and 10 of the Appellant s Notice of Appeal. ISSUE THREE: Whether the findings/decision of the Lower Court that the justification for the 7th 12 respondents to out and (sic) read the decision written by the Technical Committee of the Kwara State Boundary Committees is untenable is not erroneous. Ground 3 of the Appellant s Notice of Appeal. ISSUE FOUR: Whether the Learned Judge of the lower Court was right to have relied on Exhibits A, B and C attached to 4

8 the Appellants Counter Affidavit as against the Record of Proceedings of the technical sub-committee to set the entire proceedings not reported in the Exhibits and the findings and Decision which was not placed before the Court. Grounds 6 and 7 of the Appellant s Notice of Appeal. ISSUE FIVE: Whether the learned judge of the lower Court was not in error in the procedure taken and orders granted in this matter without consideration of the peculiarity of the issues involved and the provisions of Order 48 Rule 9(4) of the Kwara State High Court Civil Procedure Rules Grounds 8 and 9 of the Appellant s Notice of Appeal. The 1st 6th Respondents adopted the issues as formulated by the Appellant but, with amendment of issues three (3) and five (5) as follows: 1. Whether the cause of action of the 1st 6th Respondents is statute barred. 2. Whether there are proper parties before the lower Court to have conferred jurisdiction on it to determine the issues raised in the matter. 3. Whether the findings of the lower Court that it is untenable and without justification in law for 5

9 the 7th 12th Respondents to have decided on evidence they did not hear and proceedings they did not conduct is assailable. 4. Whether the trial Court was right to have relied on Exhibits A, B and C produced by the Appellant and attached to his Counter-Affidavit to grant the Order of Certiorari sought for by the 1st 6th Respondents. 5. Whether the trial Court was right in quashing the State Boundary Committee Constituted by 7th 12th Respondents Report/proceedings and decision by an order of Certiorari as incompetent without more. The 7th 11th Respondents did not file any brief of argument but, aligned themselves with the Appellant. Before the appeal was argued (on 19/4/18), the Court was informed that the original 11th Respondent is late. Mr. Alawode applied that the name be struck out. There was no objection, the name of the 11th Respondent (Surveyor Oyebode, Member Kwara State Government Boundary Committee) was struck out, the 12th Respondent (Mr. S.B. Suleiman, Secretary, Kwara State Government Boundary Committee) then became the 11th Respondent. 6

10 In arguing the appeal, the learned counsel to the Appellant Tosin Alawode Esq, with Abdulrazaq A. Daibu Esq, Ayokunle Olufade Esq, and Cletus Uduma Esq. adopted and relied on his brief of argument filed on 28/3/17 and his reply brief filed on 12/10/17. The Learned Counsel also submitted a list of additional authorities to the effect that the High Court of the State does not have jurisdiction over boundary matters except in a supervisory role to review the decision of the boundary dispute committee in urging us to allow the appeal and set aside the decision of the trial Court. In arguing his first issue, whether the cause of action of the 1st 6th Respondents is not statute barred, it was submitted that the action is statute barred owing to the combined effect of Section 29 of the National Boundary Commission (Establishment) Act, Section 2(a) of Public Officers Protection Act and Order 48 Rule 4 (2) and (3) of the Kwara State High Court Civil Procedure Rules, 2005 which all provide a period of three months to institute this kind of action. It was submitted that even though the trial Court acknowledged the applicability of these laws 7

11 premised his finding on the time the Ex parte Application for Leave to Apply for Judicial Review as the time to be reckoned with in the determination of the question whether or not the matter is statute barred as against the time the substantive Application was filed, reference was made to the trial Court s findings at paragraph 6 of page 368 and paragraph 5 of page 369 of the printed records of appeal. It was argued that it is not in dispute that the decision challenged was read on 10th February, 2010, vide an ex parte application dated 7th May, 2010 but, filed on 10th May, 2010 which sought for leave of the Court to apply for judicial review by way of certiorari. Further, that the ex parte application was heard and granted on the 1st of June, 2010 upon which the 1st 6th respondents thereafter filed the Substantive Application on 10th June, It was submitted that by the 1st day of June, 2010 when the ex parte application was granted and as at the 10th day of June, 2010 when the substantive Application was filed, three months period had lapsed. It was the contention of the learned counsel that the leave sought would determine whether the substantive matter 8

12 would be filed or not, it is not the date to be reckoned with in respect of the substantive process, reliance was placed on the cases of UGOH VS. BENUE STATE L.G.S.C. (1995) 3 NWLR (PT. 383) 288 at 322 and TABAI VS. THE V.C. R.S.U.S. & TECH. (1997) 11 NWLR (PT. 529) 373 at The learned trial judge was said to have erroneously relied upon the case ofiyoho VS. EFFIONG (2007) ALL FWLR (PT. 374) 204 at 217, the above decision was distinguished from the present case. It was argued that the ex parte application for leave to apply for judicial review and the substantive application ought to have been filed within the period allowed by the applicable law. See, P.P.A. VS. INEC (2012) 13 NWLR (PT. 1317) 215 at , F C. It was concluded on this issue that a limitation period cannot be extended by the Court under any guise or by any act of judicial activism; reliance was placed on the cases of A.C.B. PLC VS. N.T.S. (NIG) LTD (2007) 1 NWLR (PT. 1016) 597 at 635, G H; EGBE v ADEFARASIN (1985) 1 NWLR (PT. 3) 549 at 568; HASSAN VS. ALIYU & ORS (2010) 17 NWLR (PT. 1223) 547 at 623, D H; AMADI VS. INEC 9

13 (2012) 4 NWLR (PT. 1345) 595 at 637, A C; AJAYI VS. ADEBIYI (2012) 11 NWLR (PT. 1310) at 137 and SULGRAVE HOLDEN INC. VS. F.G.N. (2012) 17 NWLR (PT. 1329) 309. It was submitted that the action having been commenced outside the mandatory three months period allowed by the law, the action is statute barred and the trial Court had no jurisdiction to entertain it. In response, the learned Senior Counsel J.S. Bamigboye (SAN) appearing with T.K. Abdullahi, U.K. Belgore, B.A. Oni and A.T. Smith for the 1st 6th Respondents adopted and relied on his brief of argument filed on 26/9/17 but, deemed filed on 28/9/17 as well as his list of additional authorities to the effect that he cannot withdraw affidavit evidence, in urging us to dismiss the appeal and affirm the judgment of the lower Court. The appellant s reply brief was said to have been a re-argument of the appeal. In response to the appellant s first issue, it was submitted that the Public Officers Protection Law or Act is not applicable; reliance was placed on the case of FRN VS. IFEGWU (2003) 45 WRN 27, 69. It was admitted that the duty performed by the 7th 12th Respondents 10

14 necessitating the remedy for certiorari is the determination of a boundary dispute between the two communities, Iwo and Odo-Eku which was said to be a judicial role and not an administrative act. It was argued that the Public Officers Protection Act or Law relevant to executive or administrative actions is irrelevant. It was submitted that the crux of this issue are: when the cause of action accrued and when the action was instituted? The learned Senior Counsel agreed that the period allowed by law is three months within which to have instituted the action and posed the question as to whether this action was commenced within three months accrual of the cause of action? It was submitted that the processes for determining the above question are the ones filed by the applicants for the relief of certiorari and not the defence, reliance was placed on DR. JAM AGBONIKA VS. UNIVERSITY OF ABUJA (2014) ALL FWLR (PT. 715) 335, 353, JUDE OGBONNA VS. AGHAEGBUNAM EZEWUZIE (2014) ALL FWLR (PT. 755) 336, and ACTION CONGRESS OF NIGERIA VS. INEC (2014) ALL FWLR (PT. 716) 460, It was submitted that the parties agreed that the Report 11

15 and Decision leading to the suit was delivered on 10th of February, 2010 and that from 11th February, th May, 2010 when this action was commenced by an Ex-parte application as prescribed by the applicable rules of Court, the action was commenced eighty nine (89) days, a day short of the ninety (90) days prescribed by the respective laws cited by the appellant. It was submitted that the suit was competently commenced as prescribed by all relevant limitation laws on judicial review by way of certiorari and is not statute barred. It was the contention of the learned Senior Counsel that an action for judicial review by way of certiorari shall be commenced by leave of Court vide an ex parte application within three months of the cause of action for judicial review which the 1st 6th Respondents duly complied with. It was argued that the application for leave is reckoned with in the three months period for the commencement of action for judicial review, reliance was placed on Order 48, Rule 3(1) and (2) of the Kwara State High Court (Civil Procedure) Rules, 2005, also Rule 4 (1) as well as the cases of CORPORATE IDEAL INSURANCE LTD 12

16 VS. AJAOKUTA STEEL CO. LTD (2014) ALL FWLR (PT. 731) 1441, 1458, 1459; EBELE OKOYE VS. C.O.P. (2015) ALL FWLR (PT. 799) 1101, 1140 and MADAM AKON IYOHO VS. E.P.E. EFFIONG ESQ. (2007) ALL FWLR (PT. 374) 204, It was submitted that Order 48 Rule 3 (1) (9) of the Kwara State High Court (Civil Procedure) Rules 2005 made it clear that the ex parte application for leave commences an application for certiorari and should be read with Order 49 Rule 9 (a) and (b). It was argued that the application for leave is equated with a writ and commences a relief by way of certiorari; reliance was placed on the case of CHIEF ONWUKA KALU VS. CHIEF VICTOR ODILI (1992) 6 SCNJ 76, 96. It was stressed that by the ex parte application the 1st 6th Respondents commenced the action within the time allowed and using the prescribed process. It was contended by the learned Senior Counsel that the 7th 12th Respondents committee was not in composition and mode of operation constituted under Section 29 of the National Boundary Commission (Establishment) Act, and cannot claim any benefit or defence under that law. It was also argued that the learned 13

17 counsel to the appellant was wrong to have equated leave to appeal with leave for judicial review. It was concluded on this issue that the trial Court was right in holding that the ex parte application for leave to apply for judicial review commences an action for judicial review. It was argued that the action was competently commenced within the time frame allowed and is not statute barred. In reply to the submissions of the Learned Senior Counsel in respect of issue one, it was submitted by the learned counsel to the appellant that the 1st 6th Respondents did not cross appeal or file a Respondent s Notice to challenge the findings of the lower Court to the effect that the Public Officers Protection Act is applicable to an application for Judicial Review argued in the 1st 6th Respondents paragraphs 4.12 to 4.13 at page 7 of their brief of argument, reliance was placed on the cases of CHAMI VS. UNITED BANK PLC (2010) 6 NWLR (1191) P. 474 at 496, PARAS. F G, EZUKWU VS. UKACHUKWU (2004) 17 NWLR (902) 227 and OJABO VS. INLAND BANK NIG. PLC. (1998) 11 NWLR (574) 433. Section 29 of the National Boundary Commission 14

18 (Establishment) Act was argued to be applicable in the present circumstance. It was concluded that leave sought and had is only permission to commence the action. The appellants issue one is similar to that of the respondents which is: whether the cause of action of the claimants/1st 6th Respondents is not statute barred? The appellants contend that the action of the claimants (now 1st 6th Respondents) was statute barred from the combined effect of Section 29 of the National Boundary Commission (Establishment) Act, Section 2(a) of the Public Officers Protection Act and Order 48 Rule 4(2) and (3) of the Kwara State High Court (Civil Procedure) Rules, 2005 which all provide a period of three (3) months for the institution of the type of action that led to this appeal. From the records of Court, the learned trial judge acknowledged the applicability of these laws which narrows down the appellants issue one. The only issue now is when the permitted time commenced? The learned trial judge found that the time the Ex-parte application for leave to apply for judicial review is the time to be reckoned 15

19 with in the determination of the question whether or not the matter is statute barred as against the time the substantive application was filed, at paragraph 6, page 368 and paragraph 5 of page 369 of the records of appeal. The decision being challenged was read on 10th of February, 2010, there is no dispute about this date. Also, that the 1st 6th Respondents ex-parte application dated 7th May, 2010 which sought the leave of the Court to apply for judicial review by way of certiorari was heard and granted on the 1st day of June, 2010 following which the substantive application was filed. It is therefore evident and not disputed that as at 1st June, 2010 when the ex-parte application was granted and 10th June when the substantive application was filed, three months period had lapsed. The trial Court relied on the exparte application in computing when action was taken. But, looking at the ex-parte application on the face of it, simply sought leave to seek the following Reliefs: the reliefs were thereafter listed which included declaratory reliefs as well as to quash the proceedings and decision of 16

20 the 7th 11th Respondents constituted as the Kwara State Boundary Committee of 10th February, 2010 in the dispute between the two communities, pages 1 16 of the printed records of appeal. In other words, what was sought was leave to file the substantive application. If granted, the applicants would proceed to commence their action by filing the Motion on Notice or summons whatever the case may be, as provided under Order 48 of the Rules of the Court. Where it is refused, it ends there and the applicant would be unable to commence any action. To my mind the action can only commence after the grant of the leave. Order 48 Rule 3 of the Rules provides that: 3(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule. It cannot therefore be rightly argued that the commencement of the substantive application for judicial review would be from the date the application for leave was sought as argued by the learned Senior Counsel. The lower Court was wrong to have computed the date the action was filed from the date the leave was sought to hold that the action was filed within the time 17

21 allowed, ninety (90) days. On the other hand, the grant of the leave is not automatic on application, the Court would at that stage examine whether a prima facie case has been made out for an application for an order of certiorari. In the application for leave, the applicant would have to disclose some injury done to him for which he seeks a redress, which would be highlighted in the affidavit in support of the application for leave. At that stage, the trial Court would limit its decision to the ex-parte application only and would not touch or pronounce on the substantive application not yet before him. See, UGOH VS. BENUE STATE L.G.S.C. (supra) and TABAI VS. THE V.C., R.S.U.S. & TECH (supra). In simple language or definition, leave of Court means judicial permission to do something. It cannot be taken to be the doing of what leave is sought to be done. Where the leave is granted, then the next stage is to make the substantive application, which is the date the action would be reckoned to have commenced. The purpose for the application for leave to precede the application for a judicial review (as in the 18

22 present case) was explained by the Supreme Court by his lordship, Craig, JSC in IGBOHO, IREPO LOCAL GOVERNMENT COUNCIL and COMMUNITY VS. THE BOUNDARY SETTLEMENT COMMISSIONER & ANOR (1988) LPELR 1449 (SC) P. 28, PARAS. D G (also reported in (1988) 1 NWLR (PT. 69) P. 189 and (1988) ANLR P. 111) held that: In this respect, it must be borne in mind that an application for judicial review is effected by two distinct steps: 1. The applicant files an application for leave to apply for the judicial review in this case, an order of certiorari. This application is made ex-parte. 2. If the applicant shows a prima facie case, and leave is granted, then he would file an application for an order of certiorari to issue. This is by Motion on Notice to the Respondents in the case. See, REG. VS. I.R.C. EX PARTE FEDERATION OF SELF-EMPLOYED and SMALL BUSINESS LIMITED (1982) AC 617 at 642. (underlined mine for emphasis) See also OFFOR and ORS VS. HIS WORSHIP M.D. KANU ESQ (2016) LPELR (CA) PP D A. It is clear then, that the date of filing the substantive process would 19

23 determine the commencement of the action for certiorari. I agree with the learned counsel to the appellants that the trial Court was wrong to have held that the ex-parte application is the initiating process in the matter. At page 368 of the printed records of appeal, the learned trial judge rightly determined when the computation of the ninety (90) days should commence, which is the day following the decision/report of the committee of 10th February, Commencement date was rightly held to be 11th February, 2010 and to end on 10th May, 2010 which is the last date the Respondents as applicants had to file their application. The trial judge rightly held thus: In the light of the foregoing authorities, in calculating the three (3) months period prescribed for filing an action against the proceedings, report, judgment or decision of the Kwara State Government Boundaries Committee by law, the date 10th February, 2010 on which the said committee delivered its report, judgment/decision must be excluded. Consequently, the calculation must commence on the 11th February, 2010 and three (3) months from that date would ordinarily end at midnight of the 20

24 10th May, See, AZEEZ AKEREDOLU & ORS VS. LASISI AKINREMI (1985) NWLR (PT. 10) 787 and ACN VS. INEC (2014) ALL FWLR (PT. 716) 460. In my view, in law and fact, the applicants herein had up to the midnight of the 10th May, 2010 to file their action against the report, judgment/decision of the Kwara State Government Boundaries Committee. But, the learned trial judge wrongly held that the commencement of the action/application was from the date the ex-parte application for leave to apply for judicial review by way of certiorari was filed, on 10th May, 2010 to conclude that the applicants suit was filed within the period prescribed for so doing. The trial Court erroneously held thus: Hence having filed their ex-parte application for leave to apply for judicial review by way of certiorari which in my opinion is the originating or initiating process in this case before midnight on 10th May, 2010, applicants suit was filed within the period of time prescribed for so doing. I hold that the above computation is wrong. The learned trial judge concluded at page 369 of the records thus: 21

25 Be that as it may, it is not open to any argument that the applicants suit was initiated, instituted or filed within the period prescribed by the relevant law(s). It is therefore clear to me that this suit is not caught up by any of the limitation laws relied on by the respondents in this case. It is competent and valid and I so hold. The above conclusion by the learned trial judge is also erroneous. The learned trial judge was wrong to have relied upon and equated this case with the situation in IYOHO VS. OFFIONG (supra) which dealt with a situation where an application for judicial review was filed within the period allowed for appeal. The Court frowned at such application because it implied that if allowed and an appeal is filed, it would be in existence at the same time as the application for judicial review. The refusal is to avoid duplicity of actions, that is, an appeal being filed at the same time, the possibility of judicial review being filed within the period to appeal. The above case is not applicable. On the other hand, I am of the humble but, firm view that the application ex-parte and the application on Notice for 22

26 judicial review should have been filed within the period allowed, that is ninety (90) days from the date of the decision/report of the committee. In the present case, the substantive application was filed by the 1st 6th Respondents on 10th June, 2010 following the grant of the application ex-parte on 1st June, The commencement date of action was on 10th, June, 2010 which is outside the ninety (90) days prescribed. The resultant effect is that the action is statute barred. The action having become statute barred the lower Court had no jurisdiction to have entertained the matter. The 1st 6th Respondents (as applicants) failed to invoke their right of action in time and ran the risk of the extinction of such a right of enforcement and of entitlement to a judicial relief. See, ASABORO AND ANOR VS. PAN OCEAN OIL CORPORATION (NIG) LTD and ANOR (2017) LPELR (SC) per Nweze, JSC, at PP , PARAS. B E, A.C.B. PLC VS. N.T.S. (NIG) LTD (2007) 1 NWLR (PT. 1016) 596, 637, IBRAHIM VS. JSC KADUNA (1998) 12 KLR (PT. 73) In the case of OSUN STATE GOVERNMENT VS. DALAMI NIGERIA LTD (2007) LPELR 2817 (SC) P. 11, PARAS. C E, his 23

27 lordship Katsina Alu, JSC (as he then was) simply defined an action that is statute barred thus: The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is commenced after the prescribed period is said to be statute barred. See, IBRAHIM VS. J.S.C. (1998) 14 NWLR (PT. 584) 1. Similarly, in INEC v. OGBADIBO LOCAL GOVT. & ORS (2015) LPELR (SC) P. 35, PARAS. D F, his lordship Onnoghen, JSC (as he then was) reiterated and emphasized in the same way that: It is settled law that a limitation law, such as the provisions of Section 2 (a) of the Public Officers Protection Act, takes away the legal right of a litigant to enforce an action leaving him with an empty shell of a cause of action where the action is not instituted within the time frame enacted in the statute of limitation. Where the action is instituted outside the time so allotted by the statute, we say that the action so instituted is statute barred and cannot be 24

28 maintained since it robs the Court of the jurisdiction to entertain and determine same. The limitation of action statutes usually make provisions to limit the period of time within which an action in certain cases can be enforced or protected through the judicial process of the Courts. Where a statute prescribes a period within which an action must be commenced or initiated, the proceedings cannot be properly and validly commenced or initiated after the expiration or outside the prescribed period for the enforcement or protection of such right. A statute of limitation therefore removes the right of action, enforcement and judicial relief. In the case of DUZU and ANOR v YUNUSA & ORS (2010) LPELR 8989 (CA); (2010) 10 NWLR (PT. 1201) P. 80 this Court gave the rationale behind the limitation of actions generally to include the following:- (1) long dormant claims have more of cruelty than justice in them; (2) a defendant might have lost the evidence to disprove a stale claim; (3) persons with good causes of action should pursue them with reasonable diligence. Reliance was placed on LLOYD VS. BUTLER (1950) 1 KB 76 and JONES VS. BELLGROVE PROPERTIES 25

29 LTD (1949) 2 KB, 700, AREMO II VS. ADEKANYE (2004) ALL FWLR (PT. 224) 2113 at 2131, NPA VS. AJOBI (2006) 7 SC (PT. 1) 23; (2006) 13 NWLR (PT. 998) 477 and AMUSAN VS. OBIDEYI (2005) 6 SC, 147 amongst others. From all that I have said, the trial Court was wrong to have held that the 1st 6th Respondents action at the lower Court was not statute barred; I am of the contrary view and hold that it was. Therefore, the trial Court had no jurisdiction to have entertained the matter. The appellant s issue one is resolved in his favour. Having resolved the appellant s first issue in his favour, there would be no need to look into the rest of the issues as to whether the proper parties were before the Court or not, evaluation of evidence and findings of the trial Court. The appeal is allowed on the resolution of issue one alone. Resolving the other issues would be a waste of judicial time. In sum, the decision of the trial Court is a nullity, same is hereby set aside. Parties to bear their respective costs. MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege 26

30 of reading the draft of the lead Judgment just delivered by my learned brother, CHIDI NWAOMA UWA, JCA I agree with the reasoning and conclusions therein. I also allow the Appeal. I abide with the consequential Order. HAMMA AKAWU BARKA, J.C.A.: The decision of my learned brother CHIDI NWAOMA UWA JCA, was made available to me before now in draft I agree with the reasoning and conclusion reached to the inevitable conclusion that the appeal has merit' and is hereby allowed by me. 27

31 Appearances: Tosin Alawode, Esq. with him, Abdulrasaq A. Daibu, Esq., Ayokunle Olufade, Esq. and Cletus Uduma, Esq. For Appellant(s) J.S. Bamigboye, (SAN) with him, T.K. Abdullahi, U.K. Belgore, B.A. Oni and A.T. Smith - for 1st-6th Respondents. Funsho D. Lawal, Solicitor General of Kwara State -for 7th-11th Respondents For Respondent(s)