TOHIR FOLORUNSHO ISMAILA vs. CENTRAL BANK OF NIGERIA

CORAM

PARTIES

1. TOHIR FOLORUNSHO ISMAILA

2.ODUNTAN TAOFIK AYINDE

3.ADEFUYE MICHAEL OLORUNTELE

4.OBARINDE ISAAC OBATOSHO

5.OSADINIZ-U CHUCKS NWOSA (Suing for Themselves and /or on behalf of Other Shareholders of Finbank PLC)

APPELLANTS

1.CENTRAL BANK OF NIGERIA

2.GOVERNOR, CENTRAL BANK OF NIGERIA

3.FINBANK PLC

RESPONDENTS

AREA(S) OF LAW

APPEAL, CIVIL LAW AND PROCEDURE, COURT, STATUTE OF LIMITATION, STATUTE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

The Appellants who are Shareholders of the 3rd Respondent instituted proceedings at the Federal High Court, Lagos Division, for judicial review of the actions of the 1st Respondent and for an order of certiorari to lie to quash the said actions. The actions of Central Bank of Nigeria, the 1st Respondent which led to the filing of this suit is with respect to the management of the affairs of Finbank PLC, the 3rd Respondent herein.

Upon applying for leave to bring the application for judicial review, the lower court, suo motu, raised the issue of whether the application was statute barred. In its Ruling granting leave for the application to be brought, the lower court held that the action was not statute barred because the cause of action arose on 14th August 2009, therefore the application for leave to apply for judicial review which was filed on 11th November 2009 was filed within three months of the accrual of the cause of action.

The leave to bring the application for judicial review having been granted, the Appellants filed the substantive application for judicial review on 18th February 2010. Upon being served with the substantive application, the Respondents raised a preliminary objection to the competence of the application on the ground, inter alia, that it was statute barred having been filed more than three months after the cause of action accrued, contrary to the stipulations of Section 2(a) of the Public Officers Protection Act. In a considered Ruling delivered on 2nd July 2010, the lower court upheld the preliminary objection and struck out the action for being statute barred.

Aggrieved by the ruling of the trial Court, the Appellants filed the instant appeal and the 1st Respondent being aggrieved that the trial Court did not rule on all the grounds the Preliminary Objection was predicated cross appealed on this basis.

HELD

Main Appeal dismissed while Cross Appeal succeeds in part.

ISSUES

Whether the lower court was right when it held that the instant suit being an action for judicial review was statute barred on the ground that the action was commenced when the Motion on Notice for Certiorari was filed (12/2/10) and not when the Motion ex parte for leave to apply for Certiorari was filed (11/11/09).

Whether the lower court who had earlier held that this suit is not caught up with the statute of limitation was not functus officio in respect of that issue and whether the lower Court can validly reach a different decision on the same issue in the same case.

The Issues for Determination in the Cross Appeal are as follows:

Whether or not, the Learned Trial Judge was right when he failed to consider and/or make any finding on 5 out of the 6 issues raised in the Cross-Appellant’s Notice of Preliminary Objection after same has been duly argued before the court.

If the answer is in the negative, whether or not, the lower court ought not to have struck out and/or dismissed the suit on the grounds of lack of jurisdiction as set out in the Notice of Preliminary Objection; and in the circumstances whether this is a proper case for the invocation of Section 15 of the Court of Appeal Act.

RATIONES DECIDENDI

STATUTE BARRED ACTION – HOW TO DETERMINE WHETHER AN ACTION IS STATUTE BARRED

“In ascertaining whether an action is statute barred, the court looks at the date when the action was instituted and the date when the cause of action arose.” – Per OGAKWU, J.C.A.