IN THE HIGH COURT OF JUSTICE OF THE FEDERAL CAPITAL TERRITORY ABUJA. OJI PRESIDING JUDGE SUIT NO: FCT\HC\CV\6015\11 BETWEEN:

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1 IN THE HIGH COURT OF JUSTICE OF THE FEDERAL CAPITAL TERRITORY ABUJA. IN THE ABUJA JUDICIAL DIVISION HOLDEN AT WUSE ABUJA ON THE 13 TH DAY OF MAY, 2013 BEFORE HIS LORDSHIP HON JUSTICE CHIZOBA N. OJI PRESIDING JUDGE SUIT NO: FCT\HC\CV\6015\11 BETWEEN: EAUXWELL NIGERIA LIMITED PLAINTIFF/APPLICANT AND 1. THE HON. MINISTER FCT 2. FCDA DEFENDANTS 3. THE NIGERIAN POLICE FORCE RULING. By a Notice of Preliminary objection filed on 19 th July 2011, Mr. Ndakatsu, learned counsel to the 1 st and 2 nd defendants objected to the jurisdiction of this Honourable Court to entertain this suit on the ground that the suit is statute barred by virtue of the Public Officers Protection Act. Reliance was placed on all the court processes filed in the suit. Pursuant to the objection he raised a sole issue for determination in his written address in support of the objection, thus: Whether this action is maintainable against the 1 st and 2 nd Defendant (sic) in view of the Provisions of S. 2 (a) Public officers (sic) Act Cap. P41 LFN

2 Learned counsel answered in the negative because as at 20 th of June 2011 when the plaintiff instituted this action, the 3 months peril within which he was allowed to do so, had already elapsed by operation of the provisions of S. 2 (a) of the Public Officers Protection Act. He submitted that for a person to be protected by the Act, it has to be established that the party against whom the action was commenced was a public officer and that the act done by him in respect of which the action was commenced was done in pursuance or execution of any law or of any public duty. See FOLOLAKE V PUBLIC SERVICE COMMISSION (1993) 1 NWLR Pt (271) 639 at ; AMODE V MINISTRY OF FOREIGN AFFAIRS (2004) 14 NWLR Pt 894; 506 at 523; NPA PLC V LOTUS PLASTICS LTD (2005) 19 NWLR Pt 959 page 158 at 201. He submitted that the statement of claim reveals that the main complaints against the 1 st and 2 nd defendants who are public officers is the withdrawal of the plaintiff s allocation of Plot 111 cadastral zone B05 Utako Abuja on 26 th May 2009 or 26 th September 2009, and the purported trespass by the 3 rd defendant. These acts or ownerless complained of against the 1 st and 2 nd defendants and which constitute the cause of action were carried out in pursuance or execution of appropriate laws and a public duty within the extended definition given in IBRAHIM V JUDICIAL SERVICE COMMISSION (1998) 14 NWLR Pt 584. Relying on the definition of cause of action in ELEBANJO V DAWUDU (2006) 15 NWLR (Pt 1001) 76 at 122, he submitted that a cause of action repairs on a date when a breach of duty or act occurs which warrants the person aggrieved or injured by such breach of duty or action to institute a legal action to assert or protect his legal right which has been breached or violated. 2

3 Citing FRED AGBAJE V HON. JUSTICE J.A. ADEFASASIN (1987) 1 NWLR Pt 47, 1 at 20; Per Oputa JSC. He further submitted that the limitation period is determined by looking at the writ of summons and statement of claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date with the date the writ of summons was filed. He urged that in this case, paragraphs 9, 10 and 17 of the statement of claim unequivocally show that the cause of action arose on 5 th October 2006 when the plaintiff met opposition from the Utako District of the 3 rd defendant on the plaintiff s land; and an additional case of action arose on 26 th May 2009 (stated as 26 th September 2009 in paragraph 17 of the statement of claim) when the 1 st and 2 nd defendants by letter withdrew the plaintiff s allocation to thee said plot for failure to develop within the terms and conditions of the lease Agreement from these dates, 5 th October 2006, 26 th May 2006, or 26 th September 2009 and 3 rd June 2009 when the plaintiff received the letter of withdrawal therefore to 20 th June 2011 when the plaintiff filed this suit, the 3 months limitation period had already elapsed. See also ADEKOYA V FHA (2008) 11 NWLR pt at 557 paragraphs B-E. The court must therefore give effect to the law, regardless of the consequences. See CHIGBU V TONIMAS NIG. LTD (2008) 9 NWLR Pt 986 page 189 at 210 (wrong citation) SC Part at 191. Further reliance was placed on RAHAMA NIYYA (NIG LTD) V MINISTRY OF FEDERAL CAPITAL TERRITORY (UNREPORTED) Court of Appeal case No. CA/A/69/2006 delivered on 23 rd December 2008 and F.O. OBAJIAWANA V MINISTER OF FEDERAL CAPITAL TERRITORY (unreported) Court of Appeal case No. CA/A/152/06 decided on 15 th January,

4 This he urged that the suit be dismissed. Expectedly, Mr. Atetan learned counsel to the plaintiff disagreed with the objection. He raised this issue in response thereto: Whether the 1 st and 2 nd defendants notice of preliminary objection is competent before this court on the argument that the suit is statute barred. He submitted that the objection of the 1 st and 2 nd defendants is incompetent having come by way of demurrer which has been abolished by Order 22 Rule 1 of the Rules of this Court. By order 22 Rule 2(1), the defendants are required to file their pleadings and raise the point of law therein. Having failed to do so, learned counsel urged that they needed to explain to the court why they have disobeyed the rules. If no explanation is offered for the non compliances as in this instance then no indulgence should be granted to the defendants. The case of WILLIAMS V HOPE RISING VOLUNTARY FUND SOCIETY (1982) 25C 145 AND LEWIS & PEAT (N.R.I.) LTD V ARHIMISEN (1976) 7 SC 157 were relied upon. He submitted that the failure to obey the rules is not a mere irregularity but a deliberate violation. Furthermore, by not filing a statement of defence, the 1 st and 2 nd defendants are deemed to have admitted the allegations contained in the statement of claim. If, however the court finds the notice of preliminary objection competent, learned counsel then raised this issue: Whether the preliminary objection raised by the 1 st and 2 nd defendants is competent/sustainable. 4

5 He submitted that Public Officers Protection Act does not apply to cases of recovery of land, breach of contract, merk, labour done, etc. reliance was placed on OSUN STATE GOVT. V D.N. LTD (2007) Vol. 17 WRN 1199 at He urged that as the crux of the plaintiffs care is on recovery of land, and the above position of the law is more recent then and the cases cited by the 1 st and 2 nd defendants that Public Officer Protection Act is not applicable to this case. See also OKEKE V BABA (2000) Vol. 3 NWLR Part 650 at 644. Learned counsel however submitted that if the court should find the objection sustainable, that the 2 nd defendant is not protected by the Public Officer Protection Act as it is not a public officer. He placed reliance on the definition and listing of public officer in the Interpretation Act Cap C23 LFN 2004, page 9, 5 th schedule of the 1999 constitution of the federal republic of Nigeria (as amended) page 197 and 198, pages , which consciously extended the 2 nd defendant. Further S. 2 Public Officer Protection Act itself refers to any person and not any authority He maintained that the acts of trespass of the 3 rd defendant on plaintiff s land was with the knowledge of the 1 st and 2 nd defendants and this has removed the immunity conferred on the 1 st and 2 nd defendants by S. 2(a) of the Public Officer Protection Act. He prayed the objection be dismissed. In their reply on points of law it was submitted for the 1 st and 2 nd defendants that there is a distinction between demurrer and objection to jurisdiction of a court. AKINTARO V ESGUNBOLUN (2007) 9 NWLR (Pt 1038) 106, NDIC V CBN (2002) 7 NWLR (Pt 766) 272, USMAN V BABA (2005) 5 NWLR (Pt 917) 113; were relied upon. 5

6 Citing the case of IBRAHIM V JUDICIAL SERVICE COMMISSION (supra) it was submitted that the Public Officer Protection Act covers any public officers that is all civil servants in their individual capacity and all governments bodies, public institution, agencies, ministries and departments by whatever name called and whether corporate or unincorporated; that 1 st and 2 nd defendants acted pursuant to S. 5 (1) (a) and S. 28 Land Use Act and this protected by S. 2 (a) Public Officer Protection Act; that to exempt cases of relocation/recovery of land from the application of the Public Officer Protection Act is to defect or restrict the manifestation of the legislature s intention. See EKIINOLA V CBN (2006) 14 NWLR (Pt 1000) 292 at 324. I have considered the submissions of both learned counsel. I shall begin by addressing the issue raised by learned counsel for the plaintiff on the competence of the preliminary objection. He submits that it is by way of demurrer which has been clearly abolished by Order 22 (1) of the Rules of this court. For the 1 st and 2 nd defendants it was contented that they need not file a statement of defence before they can raise an issue on jurisdiction. In the case of TIJANI BAMBE & ORS V ALHAJI YUSUFU ADETINJI ADERIONOLA & ORS (1977) 1 SC 1, the 1 st to 7 th Applicants were defendants at the trial court. Upon being served the statement of claim they filed an application in the lower court for an order striking out the action on the ground inter alia that the action could only be brought in the name of the registered trustees of the Ijaiye National Society, Lagos; or in the alternative an order dismissing the action on the ground that even if all the facts pleaded in the statement of claim were admitted, the plaintiff s will not be entitled to any of the reliefs claimed. 6

7 The learned trial judge was of the view that the application was in the nature of a demurrer which had been abolished by Order 22 rule 1 of the High Court of Lagos State (civil Procedure) Rules 1972 and dismissed the application. On appeal the Supreme Court held that: In construing the provisions of Rule 1, it will be wrong to ignore the provisions of Rules 2 to 4. Order 22 is similar to Order 25 of the Rules of the Supreme Court applicable in England in Order 22 not only abolishes demurrer but substitutes a more summary processes for getting rid of pleadings which shows no reasonable cause of action (1963). The Annual Practice page 571). As the objection taken in the instant case could, if upheld, dispose of the whole action, we are of the view that it comes within the ambit of order 22. We find ourselves unable to support the view expressed by the learned trial judge that the objection was premature. Order 22 of the High Court of Lagos State (CP) Rules 1972 considered therein is same in substance with our Order 22. The Supreme Court again in Pt 3SC 1 at 8 to 10 held as follows: it is now beyond argument that the issue of jurisdiction can be raised at any state of the proceedings even on appeal. As observed by Oputa JSC in WESTERN STELL WORKERS LTD V IRON & STELL WORKERS UNION (1986) 2 NSCC (Vol. 17) 786 at 798. A court has to be competent in the sense that it has jurisdiction before it can undertake to probe and decide the rights o the parties. But because it is regarded as a threshold issue and a lifeline for continuing any proceedings objection to jurisdiction ought to be taken at the earliest opportunity if there are sufficient materials before the court to consider it and a decision reached on it before any other step in the proceeding is taken because if there is not jurisdiction, the entire proceedings are a nullity no matter how well conducted. 7

8 There are far too many decisions on this: see NDAEYO V OGUNNAYA (1977) 1 SC 11, CHACHAROS V EKIMPEX LTD (1988) 1 NWLR (Pt 68) 88 JERIC (NIGERIA) LTD V UNION BANK OF NIGERIA PLC (2000) 12 SC (Pt 11) 133. It is plain from the authorities that any state sufficient facts or materials are available to raise the issue of jurisdiction, or that it has become apparent too any party to the action that it can be canvassed, there is not reason why there should be delay in raising it The tendency to equate demurrer with objection to jurisdiction can be misleading. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all the facts pleaded to be true, the plaintiff has no cause of action, or where appropriate, no locus standi, But as already shown the issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend on such on what a plaintiff may plead as facts to prove the reliefs he seeks: What it involves is what will enable the plaintiff to seek a hearing in court over his grievance and get it reduced because he is able to show that the court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction In that case the Supreme Court upheld the preliminary objection filed by the 2 nd defendant had filed its statement of claim. These two authorities were reached by the Court of Appeal in AKINTARO V EEGUNGBOHUN, so also was USMAN V BABA (supra). On these authorities relied upon by the 1 st and 2 nd defendants, I must hold that the preliminary objection of 8

9 the 1 st and 2 nd defendants which challenges the jurisdiction of this court does not amount to a demurrer. It is therefore competent. I now proceed to consider the objection on its merits. The general principles of law is 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. Any action that is commenced after the prescribed period is said to be statute barred. See IBRAHIM V JSC KADUNA STATE (1998) 4 NWLR Pt It has been argued for the 1 st and 2 nd defendants that the this suit is caught by S. 2 (a) Public Officer Protection Act and ought to be dismissed it was argued for the plaintiff that the suit is not caught by S. 2 (a) Public Officer Protection Act as it is on recovery of land. S. 2 (a) Public Officers Protection Act Cap P41 LFN 2004 provides. where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Acct, law, duty or Authority the following provisions shall have effect. (a) the action, prosecution or proceeding shall not he or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage to injury, within three months next after the ceasing thereof. To benefit from this provision, both the 1 st and 2 nd defendants must be public officers to begin with. 9

10 It has also been argued for the plaintiff that the Public Officers Protection Act will not avail the 2 nd defendant as it is not a public officer. In response to this, the 1 st and 2 nd defendants relied on the authority of IBRAHIM V JSC KADUNA STATE (supra) to debunk that argument. Indeed in IBRAHIM V JSC KADUNA STATE; the Supreme Court in its majority judgment delivered by Iguh JSC (as he then was) at page 38, paragraphs D-F, put it beyond doubt thus: It is clear to me that the term public officer has by law been extended to include a public department and, therefore, an artificial person, a public officer or a public body. I do not think that it can be suggested with any degree of seriousness that the Public Officers (Protection) Law Cap 111 of Northern Nigeria 1963 while it protects public officers, cannot in the same wise protect a public department, an artificial person or a public body, so as long as they are sued for an act done in the execution of their public duties. Nor am I able to accept that Cap 111 does not protect persons, officers, bodies or institution or persons sued in their official titles, such as Attorney General, Inspector General of Police or Permanent Secretary. As I have repeatedly stated, the words of the section of the law under interpretation are clearly not in themselves ambiguous. There is also nothing in either the long or short title, against the full context of the legislation which suggests that any special meaning is to be given the words any person in that law other than their ordinary and plain meaning. I therefore find myself unable to introduce any limitation words to qualify any person in the legislation in issue... The provisions decided upon in that are is the same as Public Officer Protection Act Cap P41 LFN

11 I am bound by this decision I therefore agree with the 1 st and 2 nd defendants that the 2 nd defendant comes with the description of any person contemplated by the public officers protection Act and will be protected by the Act where its properly invoke. The issue however is whether the Public Officer Protection Act applies in the circumstances of this case. According to the plaintiff her action is on recovery of Land, in which case Public Officer Protection Act will be executed. As it is the statement of claim of the plaintiff that determines the jurisdiction of the court, it is important to consider the claims of the plaintiff and the reliefs sought therein. The plaintiff claims against the as 1 st and 2 nd and 3 rd defendants as follows: a. A declaration that the plaintiff is the bonafide owner of Plot No. 111 cadastral zone B05 Utako district, Abuja b. an order of this Honourable Court directing the 3 rd defendant to immediately vacate plot No. 111 cadastral zone B05 Utako District, Abuja to enable the plaintiff to assume possession of her plot of land c. an order of this Honourable court that the purported cancellation of the accelerated development programmed and withdrawal of the allocation of plot No. 111 cadastral zone B05 Utako District Abuja by the 1 st defendant from the plaintiff is illegal, null and void and of no effect. d. an order of perpetual injunction restraining the 1 st and 2 nd defendants from either by themselves, privies, representatives e.t.c from trespassing into the plaintiff s plot of land. 11

12 e. the sum of N50, 000, as general damages against the defendants jointly and severally f. costs of this action. It is clear to me that the plaintiff s case is on recovery of land. The plaintiff met opposition from the 3 rd defendant on 5 th October 2006 when it moved men and materials to the site, and by a letter dated 26 th September 2009 (26 th may 2009) the 1 st and 2 nd defendants purportedly withdrew the plaintiff s allocation to the said Plot No The plaintiff has this brought this action to recover the said plot of land. In that event therefore the public officers protection Act will not apply as the Act does not apply to case of recovery of land as decided in FGN V ZEBRA ENERGY (2002) 18 NWLR Pt 798, 162 I have read the cases of REHAMANIYYA NIG. LTD V MINISTRY OF FEDERAL CAPITAL TERRITORY, decided on December 28, 2008 and that of F.O. OBAJIWANNA V MINISTER OF FEDERAL CAPITAL TERRITORY decided on 15 th January In RAHAMANNIYYA s case the court stated that the subject matter was not revocation or acquisition of plaintiff, plot, but on allocation of same to another; that the appellant did not plead contract in the statement of claim. In OBAJIUWANA S case, the Court of Appeal held that the purpose of revoking and allocation to the 3 rd defendant was not canvassed neither was the issue of contractual relationship between the plaintiff and 1 st and 2 nd defendants canvassed. It stated that if allocation was not for public purpose, then it would be an exception to the Protection offered by Public Officer Protection Act. 12

13 In both cases, the court held that the Public Officer Protection Act applied and that the action was statutes barred. However in WURO BAGGA NIGERIA LTD V ANOR V HON. MINISTER OF FEDERAL CAPITAL TERRITORY & ORS (Unreported) Suit NO. CA/A/255M/08, decided by the Court of Appeal on 15 th December 2009, a letter decision, the court held that the applicable on limitation of time in an action for recovery of land within the Federal Capital territory Abuja Cap 522 Laws of the federation of Nigeria, and not the Public Officers Protection Act Hon. Justice Mary Peter Odili JCA (as she then was) agreed with that decision her Lordship sat on the panel that decided RAHAMANIYYA and her Lordship decided OBAJIUWANA case. Again in HON. MINISTER FEDERAL CAPITAL TERRITORY V MONOMIA HOTEL NIGERIA LIMITED (2010) LPELR 4257 (CA) delivered on 15 th December 2010 the court of appeal held that the plaintiffs action was on recovery of land and that Public Officer Protection Act did not apply. Therein the plaintiff complained of the revocation of his certificate of occupancy. The court held that all the claims for declaration, injunction and damages by the 1 st respondent were essentially for the recovery of the plot of land and damages for the destruction of its property and the wrong committed against its claimed right to the plot of land. That the primary claim of the 1 st respondent against the appellants was for the recovery of the plot damages and injunctions were secondary. As these last two authorities cases, I with disrespect follows them as the current position of the law. The law is that every case must be decided within its own peculiar circumstances 13

14 In the circumstances of this case. I agree with the plaintiffs that her suit is on recovery of land and therefore Public Officer Protection Act does not apply. The applicable limitation law is S. 15 Limitation Act Cap 522 LFN (Abuja) 1990 and which provides for 12 years within which she can bring this suit. From 5 th October 2006 when the 3 rd defendant opposed the plaintiff, 26 th May 2006 when the letter withdrawing the plaintiffs allocation was written on 26 th September 2009 stated in the statement of claim, and the 3 rd June 2009 when the letter was received by the Plaintiff (from the stamp thereon), to 20 th June 2011 when the plaintiff filed this action is less than 12 years. Therefore the plaintiff s action is competent. The notice of preliminary objection is hereby dismisses. Atetan: we are grateful. Court: matter adjourned to 9 th July 2013 for define hearing. Hearing notices to the defendants. Hon. Justice Chizoba N. Oji Hon. Judge 14

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE FOLASADE OJO JUDGE: BETWEEN:

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA ON THE 3RD DAY OF OCTOBER 2013 SUIT NO. FCT/HC/CV/2563/12 BEFORE HIS LORDSHIP: HONOURABLE JUSTICE FOLASADE