CORAM

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HON. JUSTICE, ITA.G. MBABA (PJ), OFR

HON. JUSTICE, PATRICIA A. MAHMOUD

HON. JUSTICE, PETER O. AFFEN

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PARTIES

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1. BELLO SADIQ

2. A.M.M.T (NIG.) LTD

APPELLANTS 

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NIGERIAN NATIONAL PETROLEUM COOPERATION (NNPC)

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, LIMITATION LAW, PRACTICE AND PROCEDURE, TORT

 

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SUMMARY OF FACTS

The Appellants claim that on 26/9/2021, while they were discharging PMS (Premium Motor Spirit) at their AMMT fueling station, Yola, the officials of the 1st Respondent, otherwise called, Task Force ‘Y’, stopped the discharge which was taking place within the Jimeta Urban Area of the State Capital, located many Kilometres away from the Nigeria border with Cameroun. The Task Force, impounded the truck, with the remaining fuel inside it, and took it to its depot in the same Yola city, where it was discharged. They claim that the Task Force’s duty was that of tracking the Petroleum Products, taken out of the Country by marketers and that when the Task Force found out that they were acting in error, they released the truck in October, 2021, but have since failed to release the PMS to Appellants.

Of course, the above remained the only authentic facts of the case before the trial Court, as the Respondent did not file any pleading, but only sought the dismissal of the Suit, with their Preliminary Objection.

The trial Judge struck out the claim of the Plaintiffs, (now Appellants), for want of the jurisdiction to entertain it, upon the Preliminary Objection raised by the Defendant (now Respondent).

Aggrieved by the decision, the Appellant made the instant appeal.

 

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HELD

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Appeal allowed

 

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ISSUES

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1. Was the trial Court right to strike out the Appellant’s Suit on the claims of the Respondent that, it was statute barred?

2. Was the Suit of the Appellant located within the jurisdiction of the Federal High Court, for hearing and determination?

 

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RATIONES DECIDENDI

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ISSUES FOR DETERMINATION – WHETHER A RESPONDENT CAN DISTILL MORE ISSUES FOR DETERMINATION OF APPEAL THAN THE APPELLANT – CONDUCT OF PARTIES IN FORMULATING ISSUES FOR DETERMINATION

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The Respondent’s Counsel erred greatly by distilling three (3) Issues for the determination of the Appeal, after the Appellants had donated only two (2) Issues for determination of the Appeal from their two grounds of Appeal, serially. We have stated in several judicial decisions that a Respondent should not and cannot distill more issues for determination of Appeal than the Appellant, except where they (Respondent) had filed a cross Appeal or a Respondent’s Notice, with ground(s) to accommodate its extra issue(s). This is because, appeals are always heard on the issue(s) distilled from the ground(s) of appeal by the Appellant. See the case of UMEANO & ORS. VS. ANAEKWE & ANOR. (2022) LPELR – 56855 (SC), where it was held:

“… the respondents have formulated four issues from the two grounds of appeal contained in the Amended Notice of Appeal. As far back as 1990, this Court inEgbe vs Alhaji & Ors (1990) 3 SC (Pt. III) 63 @ 109, per Karibi-Whyte, JSC stated what is required when formulating issues for determination. His Lordship stated, inter alia: “I think it is now well understood in the appellate Courts that the formulation of issues for determination in the appeal must be consistent and fall within the scope of the grounds of appeal filed. The issues cannot be formulated to be wider than the grounds of appeal from which they derive their existence.”(Emphasis mine) In Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig) Ltd. (1993) 1 NWLR (Pt. 269) 334 @ 347 A – C it was held thus: “The essence of formulation of issues is to narrow the relevant points in issue. Since the issues must arise from grounds of appeal, they are meant to encompass all the grounds of appeal, thus a single issue should contain the points raised in one or more grounds of appeal. 

See also IMAM & ANOR. VS. USMAN & ANOR. (2023) LPELR – 60203 CA, where we said:

“The 1st Respondent’s Counsel had distilled two Issues for the determination of the appeal, from the single ground of appeal, formulated by the Appellants. That was a grave error, which affected the entire 1st Respondent’s Brief and marked it with incompetence. The law is trite, that a party cannot distil or formulate more than a single Issue for determination of the appeal, from a single ground of appeal, though he can collapse two or more grounds of appeal to formulate an Issue for determination. This position of the law has been re-stated by this Court, time and time again, and so 1st Respondent’s Counsel should not have made that grave mistake. See the case of Mansur Vs PDP & Ors (2023) LPELR – 59791 (CA): “We have stated, several times, that a Respondent cannot formulate an issue for determination of appeal outside the confines of the Appellant’s grounds of appeal. See the case of PML Nig. Ltd Vs FRN (2017) LPELR- 43480 (SC): “…The Appellant took this up in its Reply Brief. It argued that since the Respondent did not cross-appeal or file a Respondent’s Notice in this Appeal, it cannot bring in the issue of its appeal against the ruling – Imoniyame Holdings V Soneb Enterprises (2010) 4 NWLR (pt. 1185) 561, Mulima V Usman (2014) 16 NWLR (pt. 1432) 760. It submitted that it is mandatory that a Respondent, who has not cross-appealed, must confine himself to the Grounds of Appeal in formulating his issues for determination; and that such a Respondent either adopts the issues as formulated by the Appellant or distills his own issues, which must arise from or relate to the Grounds of Appeal – Oke V. Maja (2014) 3 NWLR (Pt. 1394) 374. – Per I. G. Mbaba, JCA

 

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ISSUES FOR DETERMINATION – WHERE AN ISSUE FOR DETERMINATION DOES NOT FLOW FROM THE GROUNDS OF APPEAL – WHERE A PARTY COMBINES A GIVEN GROUND OF APPEAL OR ISSUE FOR DETERMINATION WITH A DEFECTIVE ONE

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The Respondent’s Issue 2, apart from coming in excess of the issues distilled by the Appellants, also appear to be total stranger to Appellant’s Appeal, as the same does not flow from any of the two grounds of the Appeal by the Appellants. To worsen the situation of the anomalies, the Respondent’s Counsel argued the said Issue 2, together with Issue 1, (which appears to be in line with Appellants’ Issue 1). That, automatically, made the whole arguments thereof defective and incompetent as the virus of the incompetent issue has infected the said argument, making it a nullity. See KULEPA & ORS. VS. MTN COMMUNICATION LTD (2023) LPELR – 60307 CA, where this Court held:

And where a party combines a given ground of appeal or issue with a defective one to do his argument, he falls into grave error of cancelation by attrition, as the defective ground or issue has the effect of corrupting and deleting the good ground of appeal or Issue, making the entire argument, thereof, incompetent. Even by joining the said ground two with ground one, to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR-42073 (CA). Per ITA GEORGE MBABA (PP. 12-15 PARAS. F). The effect of joining a competent ground with an incompetent one in argument is that the argument is liable to be discountenanced as the Court is not to assume the role of a surgeon performing surgery on the brief of argument of a party in an appeal in order to separate argument on a competent issue from the incompetent one. Per Mbaba in the last part of his lead judgment in Garba Vs. Governor of Kano State supra held “The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.” See Akpan vs. Bob & Ors (2010) LPELR-376 SC; (2010) 17 NWLR (pt. 1223) 42. I therefore discountenance the said argument of issues 2 and 3, argued together by the 1st Respondent.” The same position was stated in NORTHWEST PETROLEUM & GAS CO. LTD & ANOR V. ILOH & ORS (2021) LPELR 55509 CA (PP. 9-11 PARAS. D) “The law is trite that arguing a valid ground(s) of appeal (or issue distilled there from) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because, the inclusion of the defective ground(s) or issue(s) in the argument, vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or Issue, and the entire argument. I hold that the vice of incompetence which afflicted grounds 1 and 2 in the Appellant’s Notice of Appeal has infected and rendered the only two issues distilled in the Appellants’ brief incompetent and the entire argument of the Appellant liable to be discountenanced.” Per UMAR, JCA (Pp. 24-27, paras. E-F) – Per I. G. Mbaba, JCA

 

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STATUTE BAR – CONDUCT OF COURTS IN DETERMINING WHETHER A SUIT IS STATUTE BARRED – WHERE A DEFENCE IS FOUNDED ON A STATUTE OF LIMITATION – WHETHER A DEFENCE OF LIMITATION MUST BE SPECIFICALLY PLEADED

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We have stated, several times, that issue of determining whether a suit is statute barred, can only be determined from the case of the Plaintiff, as to the accrual of the cause of action, and what constitutes the cause of action. It is not conjectured from the imagination or whimsical views of the Defendant, as to what the cause of action is and/or when it accrued. See the case of UNIVERSITY OF IBADAN VS. GOVERNMENT OF KWARA STATE & ORS. (2012) LPELR – 14326 (CA), where it was held:

“… even where the Limitation Act or statutory bar, under the Public Officers’ Protection law, is applicable, the position of the law is that, to determine whether an action is caught by the law of limitation, the period can only be calculated with reference to the date the cause of action accrued, which can only be inferred or found in the writ of summons or statement of claim filed by the plaintiff, vis-a-vis, the date of filing the action. In our recent case of Moyosore vs Gov. of Kwara State (2012) 5 NWLR (Pt. 1293) 242, ratio 19, it was held: “Once a party alleges that an action is statute barred, the Court must consider only the processes filed by the plaintiff to originate the case, namely the writ of summons and the statement of claim, where evidence has not been led on the case… Thus, the trial judge erred by prejudging the case of the appellant, without taking evidence. The evidence which alleged 17/6/2005 as date of revocation of the appellant’s right of occupancy merely came from the affidavit of the respondents in support of their motion to dismiss the case. That evidence could only qualify as a line of defence by the respondents, not a conclusive evidence to base the determination of the date the cause of action accrued (Adekoya vs FHA (2008) 11 NWLR (Pt. 1099) 539) referred.” In that case, Moyosore vs Gov. Kwara State (supra), (ratio 20) it was also held: ‘A defence founded on a statute of limitation like the Public Officers’ (Protection) Act, is a defence that the plaintiff has right of action. It is a defence which can be traced in limine and without any defence in support. It is sufficient if, prima facie, the date of taking the action, outside the prescribed period, is enclosed in the writ of summons and statement of claim. The defence must be pleaded while the trial Court has a duty to confine itself to the pleading filed by the parties.

In the case of FOLARIN VS. AGUSTO (2023) LPELR – 59945 (SC), it was held that:

“Now, it is instructive to state that the plea of statute of limitation is a jurisdictional issue as it can determine a matter in limine if successfully raised. Howbeit, some jurisdiction in Nigeria require, as per the High Court (Civil Procedure) Rules that the defence be specifically pleaded in order not to take the plaintiff by surprise. In that case, pleadings have to be filed and exchanged by parties before the objection that the action is statute barred can properly be taken. This is the situation in the instant appeal where Order 17 Rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1994 provides for the defence to be specifically pleaded. This Court endorsed that prescription by the rules of Court in a plethora of decided cases. See Ishola Balogun & Anor v Chief Wahab Onikoro & Ors (1984) 10 SC 265 at 267, Oyebanji v Lawanson (2008) 15 NWLR (pt. 1109) 122 at 137. Indeed in the case of Oyebanji v Lawanson (supra) Tobi, JSC observed that:- “Rule 6(1) justifies the position of the Court that a defence of limitation must be specifically pleaded. The correct way of pleading the defence is to raise distinctly the particular statutory provision relied upon. In Iheanacho v Ejogu (1995) 4 NWLR (pt. 389) 324, the Court of Appeal held that the defence of Limitation must be specifically pleaded. The same decision was reached in Allen v Odubeko (1977) 5 NWLR (pt. 506) 638. As the limitation law was not specifically pleaded by the defendants/appellants, they cannot rely on it as a defence.”Per OKORO, JSC (Pp. 26-27, paras. C-D)

Thus, the Defendant is not expected to invent a platform for statutory limitation to be founded on his wishful thinking, without filing a defence, and he cannot rely on it, to abort the case, in limine. – Per I. G. Mbaba, JCA

 

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PUBLIC OFFICERS PROTECTION LAWS – THE PURPOSE OF THE PUBLIC OFFICERS PROTECTION LAWS – WHETHER THE FEDERAL HIGH COURT HAS EXCLUSIVE JURISDICTION IN ACTIONS BY OR AGAINST THE FEDERAL GOVERNMENT

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The Public Officers Protection Act, was not meant to protect Public Officers, while doing unlawful act(s)! See the case of OOU VS. SALAMI (2022) LPELR – 58116 (CA), where it was held:

It is further the law that the Public Officers (Protection) Act is meant to protect public officers who act in good faith and does not apply to acts done in abuse of office. The law is therefore to be used as a shield and not as a sword in protecting actors of acts that are done in accordance with the Constitution and any other enactments. See CIL RISK & ASSET MANAGEMENT LIMITED VS. EKITI STATE GOVERNMENT (2020) 12 NWLR (PT. 1738)203: AWOLOLA VS. GOVERNOR OF EKITI STATE (2019) 6 NWLR (PT. 1668)247; SIFAX NIGERIA LIMITED VS. MIGFO NIGERIA LIMITED (2018) 9 NWLR (PT. 1623)138: KWARA STATE PILGRIMS WELFARE BOARD VS. BABA (2018) 9 NWLR (PT. 1623)36.” Per OJO, JCA (P. 18, paras. C-F)

See also NDLEA & ORS VS. DONALD OWEREBULAM (2020) LPELR – 49556 (CA), where this Court held, as follows:

In interpreting the above law, the Court is always consistent that “such an officer who acted within the confines of his duties, cannot be sued outside the limitation period of three months.”  CBN and Anor V. Michael (2018) LPELR – 44251 (CA); Ibrahim Vs Judicial Service Commission Kaduna State (1998) 14 NWLR (Pt.584) 1; Hassan V. Aliyu (2010) 17 NWLR (Pt.1223) 547.

In the case of Sule & Ors V. Orisajimi (2019) LPELR – 47039 SC, it was held that the Public Officer” Protection Act was meant to protect officers who act in good faith, and my lord Bage JSC said:

“On the Issue of Section 2 (a) of the Public Officers’ Protection Act, I’m in agreement with the Court below. The law is now settled that Section 2(a) of the Public Officers’ Protection Act had been enunciated by the Supreme Court in the case of Nwankwere V. Adewunmi (supra), per Bret JSC, thus:

“The law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office, and with no semblance of legal justification. See Lagos City Council Trading under the name of Lagos City Transport) V. Ogunbiyi (1969) ALL NLR 287 at 289. Clearly the Appellants acted in abuse of office and cannot benefit from the protection of Section 2(a) of the Public Officers’ Protection Act.” 

In the case of Agboroh V. WAEC (2016) LPELR – 40974 CA, this Court held:

“Various judicial decisions have been made to explain the rationale and application of the above law (Public Officers Protection Act), but it is always clear that the provisions did not intend to provide a cover or bunker for a public officer to hide to commit mischief or run there for refuge after committing the mischief. See Yabugbe V. C.O.P (1992) NWLR (Pt.234) 152; Moyosore V. Gov. of Kwara State & Ors (2012) 5 NWLR (Pt.1293) 242.”

The trial Court had also held as follows:

“On the issue of jurisdiction with reference to Section 251 (r) of the Constitution. I have read the case of CBN VS. RAHMANIYYA GLOBAL RESOURCES (SUPRA) cited by both parties. The Apex Court held that:

“… there is no provision that confers automatic and exclusive jurisdiction on the Federal High Court in every action by or against the Federal Government irrespective of the subject matter. . .”

I have gone through, the statement of claim of the Plaintiff in the case before me and what it discloses is seizure of Plaintiff’s truck with PMS on 26th September, 2021. Agreed the Defendant and their purported agents are Federal Government Agencies, as provided in Section 251 of the 1999 Constitution (sic). But the issue is, looking at the subject matter, can this be said to be falling under Sub-section, 1 (r) of the Section 251? The subject matter in my view relates to seizure of goods and this, in effect, refers to action in tort of detinue, even though not specifically pleaded by the Plaintiff herein. The fact that the Defendant is a Federal Government Agency does not, ipso facto, donate exclusive jurisdiction to the Federal High Court, considering the subject matter of the action as analyzed above.” – Per I. G. Mbaba, JCA

 

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JURISDICTION – CONDUCT OF COURTS AS IT RELATES TO JURISDICTION – THE IMPORTANCE OF JURISDICTION

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It is an established principle of law that courts guard their jurisdiction jealously. Be that as it may the issue of jurisdiction is not a matter to be left to conjecture. Uwais, CJN in the case of AG, LAGOS STATE V AGF (2004) 18 NWLR, PT 904, 1 expressed how the courts should react to the issue of jurisdiction thus:

“It is a general principle of law that the court will not readily deny itself jurisdiction unless the jurisdiction is expressly ousted by legislation.” 

What determines the jurisdiction of the court to entertain a cause or matter has been clearly set out by the Apex Court in the case of ADEYEMI & ORS V OPEYORI (1976) LPELR-171 (SC) where Idigbe, JSC opined thus:

“At the risk of over-emphasising the point we repeat that it is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of a court entertaining the same, this is because only too often this point is lost sight of by courts of trial, as has happened in the instant case.”  

See also the cases of AGI V PDP (2016) 17 NWLR, PT 1595, 386 and NNPC V FUNG TAI ENGINEERING CO LTD (2023) LPELR-59745 (SC) – Per P. A. Mahmoud, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Public Officers Protection Act

3. Limitation Act

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