PASTOR DAVID D. ISHAYA ETSU V MR. SAMAILA MAIWIYA
CA/YL/65/2016
AREAS OF LAW:
ACTION, APPEAL, LIMITATION LAW, STATUTE
ACTION, APPEAL, LIMITATION LAW, STATUTE
SUMMARY OF FACTS
The Plaintiff/Applicant claimed against the Defendants/Respondents in the High Court of Taraba State several declaratory orders some of which affected the office of the Executive Governor of Taraba State, the Attorney-General of Taraba State and the Permanent Secretary, Bureau for Local Government and Chieftaincy Affairs respectively, among others. After the exchange of pleadings, the Respondents by a motion on notice sought for the dismissal of the suit for being statute barred, same having been caught by the provisions of Section 2 of the Public Officers Protection Law, Cap 115, Laws of Taraba State. The trial court consequently dismissed the suit after hearing the application, stating that the Plaintiff’s right of action had been extinguished by reason of late filling of the suit. Aggrieved by the dismissal of the action, the Appellant has approached this Court by a notice of appeal contending that the writ of summons and statement of claim filed on the 12th of June, 2015 was not statute- barred.
HELD
Appeal Dismissed
ISSUES FOR DETERMINATION
Ø Whether from the writ of summons and statement of claim before the trial Court, the case of the Appellant aside from an admission in a counter affidavit, can be said to be statute barred?
Ø Whether the trial Court was right in sticking to a sub – paragraph in the Appellant’s counter affidavit and proceeded to hold that the issue of statute barred has clearly been admitted, without considering the whole counter affidavit?
Ø Whether a court of law is not bound to consider issues validly raised by a party before it?
Ø Whether this is one of the cases that the mistake/sin of counsel can be visited on a litigant, who has not slept over his right?
RATIONES
REPLY BRIEF - PURPOSE OF A REPLY BRIEF
“By order 18 Rule 5 of the Court of Appeal Rules 2011 a reply brief shall deal with new points arising from the Respondent’s brief”. PER J.S.ABIRIYI, J.C.A
PRELIMINARY OBJECTION - BASIS FOR A PRELIMINARY OBJECTION
“In a preliminary objection the applicant deals with law and the ground is that the Court process has not complied with the enabling law or rules of Court and therefore should be struck out. See Abba V. Shell Petroleum (2013) 4 SCNJ 90 at 103”. PER J.S.ABIRIYI, J.C.A
TECHNICALITIES - ATTITUDE OF COURTS TO TECHNICALITIES
“The trend now is for Courts to focus on substantial justice by refusing to cling to technicalities. See Akamgbo – Okadigbo V Chidi (2015) 3 SCNJ 294 at 319 and Kakih V. PDP (2014) 7 SCNJ 65 at 92 – 93”. PER J.S.ABIRIYI, J.C.A
LIMITATION LAW- ESSENCE OF A LIMITATION LAW
“The essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statutes. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute – barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period offends the provisions of the law and does not give rise to a cause of action”. PER J.S.ABIRIYI, J.C.A
STATUTE BARRED ACTION - YARDSTICKS FOR DETERMINING WHETHER AN ACTION IS STATUTE BARRED
“The yardsticks for determining whether an action is statute barred include the following:
a) The date when the cause of action accrued.
b) The date of commencement of the suit as indicated on the writ of summons.
c) The period of time prescribed for bringing the action to be ascertained from the statute in question.
Time begins to run for the purpose of the limitation law from the date the cause of action accrues. See Ajayi V. Adebiyi (2012) 5 SCNJ 458 at 481 per Adekeye JSC”. PER J.S.ABIRIYI, J.C.A
PUBLIC OFFICERS PROTECTION LAW - PURPORT OF THE PUBLIC OFFICERS PROTECTION LAW
“The Public Officers Protection Law is a statute of limitation. It is exact as to time and frame. It provides for three months and not a day longer than three months. See Yare V. NSWIC (2013) 5 SCNJ 406 at 422 per Galadima JSC”. PER J.S.ABIRIYI, J.C.A
RELIEF - WHETHER COURTS HAVE JURISDICTION TO ENTERTAIN AN ANCILLARY RELIEF WHERE IT LACKS JURISDICTION TO ENTERTAIN THE MAIN RELIEF
“It is the law that if the Court has no jurisdiction to entertain the main relief sought it would also have no jurisdiction to entertain the ancillary reliefs. See Kakih V. PDP (2014) 7 SCNJ 65 at 105 and Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517”.PER J.S.ABIRIYI, J.C.A
PUBLIC OFFICERS (PROTECTION) LAW OF TARABA STATE - REQUIREMENT FOR INVOKING THE PUBLIC OFFICERS (PROTECTION) LAW OF TARABA STATE
“The statute of limitation, in the case, the Public Officers (Protection) Law of Taraba State can only be invoked in relation to an individual or person holding public office acting in due deligence and in discharge of public duties. See Momoh Vs. Okewale (1977) 6 SC (reprint) 49; Ekeogu Vs. Aliri (1991) 3 NWLR (Pt. 179) 258. The Second, Fourth and Fifth Respondents are such Public Officers. See: Ibrahim vs. JSC Kaduna State (1998) LPELR-1408 (SC).
Such Public Officers are protected by Law in the due discharge of their public functions unless it is proved otherwise- See Egbe V. Alhaji (1990) NWLR (Pt. 128) 546. PER S. T.HUSANI, J.C.A
STATUTE OF LIMITATION - STATUS OF AN ACTION INSTITUTED AFTER THE PRESCRIBED PERIOD STIPULATED BY A STATUTE
“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 instituted after the stipulated period is totally barred as the right of the plaintiff or the person injured to commence the action would have been extinguished by that law. See Egbe V. Adefarasin (No. 2) (1985) 1 NWLR (Pt. 3) 549)”. PER S. T.HUSANI, J.C.A
STATUTES REFERRED TO:
Court of Appeal Rules 2011
Kurmi Chiefdom Constitution Order 2015
Public Officers (Protection) Law Cap 115 Laws of Taraba State 1997
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