CORAM
PARTIES
ENG. ZUBAIRU YAKUBU & ANOR
MINISTRY OF HOUSING ENVIRONMENT, BAUCHI STATE & ANOR
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/2nd Respondent, at the High Court of Bauchi State, instituted an action against the 1st and 2nd Appellants and the 1st Respondent. It was his contention that he was allocated shop No. 53, Wunti Shopping Complex Bauchi vide a letter of allocation issued by the 1st Respondent through its Chief executive dated 3rd February, 2005. In the said letter, the 2nd Respondent was to pay a total sum of N600, 000.00 to the 1st Respondent through Yankari saving and loan limited. It is his case that he paid the said sum by two installments of N500,000.00 and N100,000.00 respectively. Receipt for the payment were tendered and admitted in evidence. Consequent upon the foregoing payments, the Yankari saving and loan limited issued to the 2nd Respondent a letter of confirmation of payment and which will authorize the 1st Respondent to release the keys of the said shop to the 2nd Respondent. When the 2nd Respondent presented the letter to the 1st Appellant, who was the Permanent Secretary in the 1st Respondents Ministry, he was allegedly abused and insulted by the 1st Appellant. At that time, it was alleged that the 1st Appellant has allocated the shop to himself using the name of his son (2nd Respondent) as crony. It is the case of the 2nd Respondent that as at that time 2005, the 1st & 2nd Appellants have not made any payment on the shop. It was on the 30th day of January, 2007 when the suit by the 2nd Respondent was pending that payment was made. It was also his contention that the Appellant did not tender any letter of allocation of the said shop but lately produced a certified letter of confirmation of payment dated 9th November, 2010. Issues were joined by parties. The 1st Respondent as 3rd Defendant did not give any evidence but adopted the evidence of the 1st and 2nd Appellants. The learned trial judge in his wisdom entered judgment in favour of the 2nd Respondent. Pained by the outcome of the trial, the Appellants filed this appeal.
HELD
Appeal Dismissed
ISSUES
Whether from the facts and evidence the Trial Court has jurisdiction to adjudicate upon the suit NO. BA/51/2007 filed by the 2nd Respondent as Plaintiff in the lower Court and against the Appellants as 1st and 2nd Defendant in the lower Court. Whether the trial Court was right to enter judgment in favour of the Plaintiff in respect of the relief not sought by him before it. Whether in view of the evidence led, the trial Court was right to have entered judgment for the Plaintiff. Whether it is the duty of Plaintiff to rely on the strength of his case and not on the weakness of the Defendants case? Whether absence of the reference number and use of paper not being used by the 3rd Defendant in its custom and traditions in respect of Exhibits LD 1 makes it in law suspicious as to its originality and authenticity?
RATIONES DECIDENDI
PERIOD OF LIMITATION – IMPLICATION OF INSTITUTING AN ACTION AFTER THE STATUTORY PERIOD HAS ELAPSED
“The single question that really come to mind having regard to the contention of the Appellant on this issue is whether or not the suit by the 2nd Respondent at the trial Court against the 1st Appellant and the 1st Respondent is statute barred. By virtue of Section 2(a) of the Public Officers (Protection Act Cap. P41, LFN. 2004 which provided statutory limitation period prescribed 3 months within which an action can be instituted against a public officer. By this provision, where an action is brought against a public officer outside the time prescribed under that law, such proceedings should not be entertained by the Court because it is statute barred. See Forestry Research Inst. of Nigeria V. Gold (2007) 11 NWLR (Pt. 1044) 1 and Agbefawo Aremu Tajudeed V. Customs, Immigration And Prison Service Board (2009) LPELR- 3655. Where an action is statute barred, a Plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period prescribed by the imitation law for instituting such an action has elapsed. See Attorney General Of Adamawa State & Ors V. Attorney General Of The Federation (2014) LPELR 23221,P.N. Udoh Trading Co. Ltd V. Sunday Abere & Anor (2001) LPELR- 2893.”
COURT- DUTY OF COURT IN DETERMINING WHETHER AN ACTION IS STATUTE BARRED
“In order to determine whether or not an action is statute barred, the Court should confine itself to the averments in the Writ of Summons and the statement of claim which alleges the factual situation that gives rise to the cause of action. See Union Bank Of Nigeria V. Romanus C. Umeoduagu (2004) 13 NWLR (Pt. 890) 352.”
PUBLIC OFFICER PROTECTION ACT-WHETHER SECTION 2(A) OF THE PUBLIC OFFICER PROTECTION ACT APPLIES TO CASES OF CONTRACT
“In the statement of claim by the Plaintiff (2nd Respondent), paragraphs 4-18 suggests to me that the 1st Respondent offered for sale to the general public in Bauchi State Shops built by Government at Wunti Shopping Complex Bauchi for N600,000.00. The 2nd Respondent applied and was allotted shop No. 53 at Wunti Shopping Complex. He paid an initial down payment of N500,000.00 and later the balance of N100,000.00. Having done this, he applied for delivery of the said shop after being issued with the certificate of completion of payment by the Yankari savings and loans Bauchi. This bid met a stone wall when the Permanent Secretary (1st Appellant) refused and told him that the said shop was allocated to another person who was later discovered to be his son. This situation motivated the 2nd Respondent to institute the action. In my humble view, the relationship between the 1st and 2nd Respondents is that of a contractual obligation of sale of landed property (shop). There is that offer of the shop to the general public in Bauchi State and the acceptance by the said Respondent and payment of consideration which is the sum of N600,000.00. that clearly suggest no other thing than a contractual relationship of sale of a shop which is a landed property. The question now is whether the limitation law ( Section 2(a) of the Public Officer Protection Act ) applies to cases of contract. My response to this is in the negative. My view is buttress with the dictum in the case of Osuu S. C. Oduko V. Govt Of Ebonyi State Of Nigeria And 3 Ors (2004) 13 NWLR (Pt. 891) pg. 487 at 493 where the Court said thus:
Section 2(a) of the Public Officer Protection Act which provides that an action, prosecution or proceeding shall not lie or be instituted against my person for an act done in pursuance of execution of intended execution of any act or law or of any pubic duty or authority or any alleged neglect or default thereof unless it is commenced within three months after the act, neglect or default complained of does not apply to cases of recovery of land, breach of contract, claim for work and labour done. In the instance case Section 2(a) of the Act cannot allow the 3rd Respondents action leading to the appeal because the Appellants claim was founded on contract. The trial Court was absolutely in error when it held that the Appellant action is statute barred. See Salako V. L.E.D.B. And Anor (1953) 20 NLR 169, Judicial Service Commission V. Alaka (1982) 8-10 CA 42, Alapiki V. Govt Of Rivers State (1991) 8 NWLR (P. 211) 575.
Considering the forgoing and the transaction between the Appellant, 1st and 2nd Respondents which is based on a contractual obligation of offer and acceptance of sale of shop No. 53 at Wunti Shopping Complex and the payment of the consideration, it is my candid view that the suit of the 2nd Respondent is not statute barred. The trial Court has the jurisdiction to entertain the suit.”
AWARD OF COST- PURPOSE OF AWARDING COST
“The complaint in the main is that the Plaintiff asked for cost of action and the Court awarded cost of filing the suit. In my humble view, the complaint of the Appellant is unfounded and of no probative value. It is clear that the 2nd Respondent asked for cost of the action. The Court in its choice of word in awarding the cost christened it cost of filing the suit. Cost of action and cost of filing to me are one and same thing. The general rule is that cost follows event and a successful party is entitled to cost. The award or refusal of cost is at the discretion of the Court provided it is exercised judicially and judiciously. See Nigeria National Petroleum Corporation (Nnpc) Pension Limited V. Vita Construction Ltd (2016) LPELR 41259, UBN Ltd V. Nwaokolo(1995) 6 NWLR (PT. 400) 127, Stabilini Visinoni Ltd V Mallison And Partners Ltd (2014) 15 NWLR (PT. 1164) 344, F.A. Akinbobola V Plisson Fisko Nigeria Ltd And Ors (1991) 1 NWLR (PT. 167) 270 . The purpose of award of cost is for the purpose of meeting the legitimate expenses of the successful party either wholly or partially as the Court may deem fit. See Adebuyi Layinka And Anor V. Adeola Makinde & Ors (2002) 10 NWLR (PT. 775) 358. EKO JCA (as he then was, now Justice of the Supreme Court) in the case of Lonestar Drilling Nigeria Limited V. New Genesis Executive Security Ltd (2011) LPELR 4437 said thus on categories of cost:
It is abundantly clear from the foregoing that costs fall in two broad species, namely the necessary expenses in the proceedings made by a party and the cost in terms of the litigants time and effort in coming to Court”. The former category includes filing fees, and solicitors fees. This category belongs to the realm akin to special damages. They are easily ascertainable by producing for instance receipts. That is why the Rules classify them as expenses. The latter category which the Rule allow the litigant to be compensated for is the litigants time and effort in coming to Court”. The Court under this category, usually take into account the number of appearances of the litigant and his Counsel in Court.”
COURT- WHETHER COURTS CAN RIGHTLY GRANT PRAYERS NOT SET DOWN IN THE PLEADINGS
“I am not unmindful of the position of the law that a Court or Tribunal will not grant a prayer outside the ones set down in statement of claim, petition etc. See Ige Felix Oyebisi V Hon. Tijani Tunde Suleiman & Ors (2008) LPELR 4288, Ugo V. Obiekwe (1989) 1 NWLR (PT. 99) 566, The Nigeria Air Force V Wing Commander T.I.A Shekete (2002) 18 NWLR (PT. 798) 129, Dr. T.E.A. Salubi V. Mrs Benedicta E. Nwariaku 2003) 7 NWLR (PT. 819) 426, Aisha Jummai Alahassan And Anor Vs Mr Darius Dickson Ishaku And Ors (2016) LPELR- 40083.”
DUTY OF A TRIAL COURT – SCOPE OF THE DUTY OF A TRIAL COURT IN THE EVALUATION OF EVIDENCE
“What is next is whether in view of the evidence led, the trial Court was right to have entered judgment for the Plaintiff. It is common ground that the duty of a trial Court is to adequately evaluate the evidence adduced in the case and make appropriate finding of fact in respect of all issues arising in the case and material to the determination of the case. See T.A.O. Wilson And Ors V. A.B. Oshin & Ors SCNLR 1215 at 1240. A. R. Mogaji And Ors V Madam Rabiatu Odofin And Ors (1978) 4 SC 91. That is why in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appears is preferable to another set of fact given in evidence by the other party, the trial judge, after a summary of all the facts must put the two set of facts on an imaginary scale, weigh one against the other then decide upon the preponderance of credible evidence which weigh more and acceptable in preference to the other and then apply the appropriate law to it. What I am saying in essence is that before a judge before whom evidence is adduced by the parties in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale, he will put the evidence adduced by the Plaintiff on one side of scale and that of the Defendant on the other side and weigh them together. He will then see which is heavier not by number of witnesses called by each party but by the quality or the probative value of the testimony of those witnesses. See the case of Musa Sha (Jnr) & Ors V Da Rap Kwan And Ors (2000) 8 NWLR (PT. 670) 685 at 705.”
CASES CITED
Not Available
STATUTES REFERRED TO
Appeal Rules, 2016|Public Officers (Protection Act Cap. P41, LFN. 2004|
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