3PLR – BAUCHI STATE AGRICULTURAL DEVELOPMENT PROGRAMME V. ALHAJI ABUBAKAR ABDULLAHI

Published by Law Nigeria Admin at October 5, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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BAUCHI STATE AGRICULTURAL DEVELOPMENT PROGRAMME

V. ALHAJI ABUBAKAR ABDULLAHI

IN THE COURT OF APPEAL OF NIGERIA

ON WEDNESDAY, THE 13TH DAY OF JULY, 2011

CA/J/88/2007

3PLR/2011/17 (CA)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

MONICA B. DONGBAN-MENSEM, JCA

UZO I. NDUKWE-ANYANWU, JCA

PHILOMENA MBUA EKPE, JCA

BETWEEN

BAUCHI STATE AGRICULTURAL DEVELOPMENT PROGRAMME – Appellants

AND

ALHAJI ABUBAKAR ABDULLAHI – Respondents

REPRESENTATION

M.D. Abubakar – For Appellant

AND

J.T. Kuleve – For Respondent

MAIN ISSUES

ACTION – CAUSE OF ACTION: When does a cause of action accrue and what is a cause of action

“A cause of action accrues when there is someone to sue and all the facts that would ground an action have happened. A cause of action is the factual situation which a Plaintiff relies upon to support his claim, recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. The factual situation must, however constitute the essential ingredients of an enforceable right as claimed. ASABORO V. PAN OCEANIC OIL (NIG.) LTD. (2006) 4 NWLR (PART 971) PAGE 595, MOBIL OIL PLC. V. DENR LTD. (2004) 1 NWLR (PART 853) PAGE 142, NICON INSURANCE COMPANY V. OLOWOFOYEKU (2006) 5 NWLR (PART 973) PAGE 244. The cause of action in this case accrued when the contract of sale was entered into on 4th June 1993. That is the date of the event whereby the cause of action becomes complete so that the aggrieved party can begin and maintain his action SHELL PETROLEUM DEVELOPMENT COMPANY (NIG.) LTD. V. FARAH (1995) 3 NWLR (PART 382) PAGE 149. ALESA V. ALADETUYI (1985) 6 NWLR (PART 403) PAGE 527, ADEOSUN V. JIBESUN (2001) 14 WRN PAGE 106.” Per NDUKWE-ANYANWU, J.C.A (Pp. 15-16, paras. B-A)

ACTION – COMMENCEMENT OF ACTION: When should a suit be initiated

“Thus, once there is grievance and a defendant, a suit should be initiated.” Per DONGBAN-MENSEM, J.C.A (P. 18, para. E)

COURT – JURISDICTION: Whether a party can use any statutory provision or any Common Law principle to impose jurisdiction on court where same is lacking

“The Court was therefore robbed of jurisdiction to entertain the suits initiated by the Respondents. Once a Court lacks jurisdiction, a party cannot use any statutory provision or any Common Law principle to impose it because absence of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the Court is to strike the action out.” Per NDUKWE-ANYANWU, J.C.A (Pp. 16-17, paras. G-A)

COURT – JURISDICTION: The distinction between the two types of jurisdiction

“A distinction must be drawn between the two types of jurisdiction namely: jurisdiction as a matter of Procedural Law and jurisdiction as a matter of substantive Law. Whilst a litigant can waive the former, no litigant can confer jurisdiction on the Court where the Constitution or statute or any provision of the Common Law says that the Court does not have jurisdiction. A litigant may submit to the procedural jurisdiction of the Court for instance where a writ has been served outside jurisdiction without leave. NDAYAKO V. DANLORO (2004) 13 NWLR (PART 889) PAGE 187.” Per NDUKWE-ANYANWU, J.C.A (P. 14, paras. C-F)

COURT – JURISDICTION: What the court should do when its jurisdiction is being challenged

“Where the jurisdiction of the Court is challenged, the Court should expeditiously attend to it particularly at the trial stage and even an appeal. The Court can also raise the issue of jurisdiction suo motu so long as the parties are accorded the opportunity to react to the issue. AJAYI V. MILAD ONDO STATE (supra). AMODI V. NNPC (2000) 6 SC (PART 1) PAGE 66, GALADIMA V. TAMBAI (2000) 6 SC (PART 1) PART 196.” Per NDUKWE-ANYANWU, J.C.A (Pp. 14-15, paras. F-A)

COURT – JURISDICTION: How a court determines whether it has jurisdiction to entertain any action brought before it

“In considering whether Court has jurisdiction to entertain any action brought before it, the Court is guided by the claim before it. The Court has to look critically, at the writ of summons and the statement of claim. GAFAN V GOVERNMENT, KWARA STATE (2007) 4 NWLR (PART 1024) PAGE 375, ONUORAH V K.R.P.C. (2005) 6 NWLR (921) PAGE 393, TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PART 117) PAGE 517, NKUMA V ODILI (2006) 6 NWLR (PART 977) PAGE 587. Where the jurisdiction of a Court is challenged, the Court is entitled under Section 6 of the 1999 Constitution to consider the Plaintiff’s claim before it, in order to decide, whether it has the jurisdiction to entertain it. ADELEKE V OSHA (2006) 16 NWLR (PART 1006) PAGE 608, EGBEBU V IGP (2006) 5 NWLR (PART 972) PAGE 146.” Per NDUKWE-ANYANWU, J.C.A (Pp. 13-14, paras. E-B)

LIMITATION LAW – LIMITATION OF ACTION: When is a case said to be statute barred

“A case is said to be statute barred when the time prescribed by the Statute of Limitation has extinguished.” Per NDUKWE-ANYANWU, J.C.A (Pp. 12-13, paras. G-A)

LIMITATION LAW – LIMITATION PERIOD: The limitation period for bringing action in Bauchi State

“Section 18 Part III of the Bauchi State Limitation Law provides as follows: “No action founded on contract, tort or any other action specifically provided for in part 1 and II of this law shall be brought after the expiration of five years from the date on which the cause of action accrued”. The limitation period of Bauchi State is five (5) years even though the Limitation Law or Act is six (6) years. In the instant case, the contract of sale was entered into between the parties on 4th June 1993. The Respondent filed the first Suit No. BA/08m/2000 in the year 2000. The subsequent Suit No. BA/37/2003 for specific performance on the said contract was initiated in 2003.” Per NDUKWE-ANYANWU, J.C.A (P. 13, paras. A-E)

LIMITATION LAW – LIMITATION PERIOD: The limitation period for cause of action founded contract

“By virtue of the Limitation Law or Act, a right of action for breach of contract is extinguished six (6) years after the date on which the cause of action accrued. In the case of Bauchi five (5) years. EGBE V. ADEFARASIN (1987) 1 NWLR (PART 47) PAGE 20, BRITISH AIRWAYS V. AKINYESOYE (1995) 1 NWLR (PART 374) PAGE 722, YAKUBU V. NITEL LTD. (2006) 9 NWLR (PART 985) PAGE 376.” Per NDUKWE-ANYANWU, J.C.A (P. 16, paras. B-C)

MAIN JUDGMENT

UZO I. NDUKWE-ANYANWU, J.C.A: (Delivering the Leading Judgment):

This is an appeal against the Judgment of the High Court of Justice Bauchi State. Briefly the facts of this case is as follows:

Sometime in June 1993, the Appellant a parastatal of the Bauchi State Government auctioned 3 of its low loader beds vehicles. The Respondent paid N8,000.00 for one of the vehicles he bought from the auction.

The Respondent claimed that he made several attempts to collect what he paid for but could not. In frustration he instituted Suit No. BA/08M/2000.
The trial Court entered judgment in favour of the Respondent and ordered the Appellant to release the vehicle. The Appellant failed to release the vehicle and thereby caused the Respondent to initiate a fresh suit for specific performance, and general damages for breach of contract in Suit No. BA/37/2003.
The Judgment in this 2nd suit was also in favour of the Respondent.
The Appellant being dissatisfied filed a Notice and Grounds of Appeal. The Appellant filed his brief and articulated two (2) issues for determination as follows:

“1. WHETHER the lower Court had jurisdiction to entertain the Respondent’s matter in spite of the exhibited Judgment order dated 24th April, 2001 of Suit No. BA/08M/2000, which is a subsisting Judgment of a Court of competent jurisdiction between the same parties in respect of the same subject matter earlier decided by High Court 4 Bauchi?

WHETHER the Appellant’s were accorded fair hearing by the trial Court, when the trial Court refused the Appellant’s application seeking the arrest of its judgment to enable the Appellant cross-examine the Respondent’s witnesses and to enter his defence?”

The Respondent filed his Respondent’s brief on 8th December, 2010 by leave of Court granted on 18th November, 2010. In it the Respondent articulated two (2) issues for determination as follows:-

“a. Whether the lower Court had jurisdiction to entertain the claim of the Plaintiff/Respondent in spite of the exhibited Judgment order dated 24th April, 2001 of Suit No. BA/08/2000, which is a subsisting judgment of a Court of competent jurisdiction between the same parties in respect of the same subject matter earlier decided by High Court No. 4 Bauchi?

Whether the Appellant’s were (sic) accorded fair hearing by the trial Court, when the trial Court refused the Appellant’s application seeking the arrest of its Judgment to enable the Appellant cross-examine the Respondent’s witnesses and to enter his defence?”

Both Counsel adopted their respective brief on 17th March 2011 and Judgment was Reserved. However a question of jurisdiction cropped up during the conference and parties were therefore invited to address the Court on it.
Appellant filed its written address on 25th June 2011 and the Respondent filed its own on 27th June 2011. Both Counsels adopted their respective address on the 30th June 2011.

The Appellant articulated two issues for determination viz:

“(1) whether this action was statute barred ab initio.

(2) whether the Hon. Court can raise the issue of statute barred (sic) suo motu and at this time when Judgment is reserved.

The Appellant’s Counsel submitted that certain enactments stipulated a time frame within which an aggrieved party may bring an action in Court to redress a wrong meted out to him. Failure to take action within the stipulated period robbed the Court of jurisdiction to entertain the Plaintiff’s claim see AJAYI V. MILAD ONDO STATE (1997) 5 NWI.R (PART 504) PAGE 237. In order to determine whether a suit is statute barred the Court has to look at the writ of summons and the statement of claim to ascertain when the cause of action accrued. See AMUSAN V. ABIDEYI (2005) 14 NWLR (PART 945) PAGE 595, ADEKOYA V. FHA (2008) 34 NSCQR PAGE 952.

Counsel submitted further that malice, good faith and ignorance are not defences to the non-observance of the Limitation Act see FAJIMOLU V. UNILORIN (2007) 2 NWLR (PART 1017) PAGE 74. Counsel drew the court’s attention to the Plaintiff’s/Respondent’s writ of summons and statement of claim. In it the Respondent stated that the wrong was committed in June 1993 and the action was filed in February 2003 about 10 years from the date the cause of action accrued. Both parties are resident in Bauchi and the cause of action accrued in Bauchi and therefore the Limitation Law of Bauchi State Cap. 84 Laws of Bauchi State of Nigeria Volume 2 is the relevant law. Section 18 provides as follows:

“No action founded on contract, tort or any other action specifically provided for in part I and II of this law shall be brought after the expiration of five years from the date on which the cause of action accrued”.

NPA PLC V LOTUS PLASTICS LTD & 2 ORS. (2005) NSCQR VI 24 PAGE 566.
Counsel submitted finally that the issue of whether an action is statute barred is one touching on jurisdiction of the Court. Once an action is statute barred a Plaintiff may still have a cause of action but has lost the right to pursue his rights in a law Court. AJAYI V. MILAD ONDO STATE (supra). Where a Court lacks jurisdiction all actions taken towards that suit are a nullity no matter how well conducted CHIEF E.O. LAKANMI V P.A. ADERE & 3 ORS. (2003) NSCQR VOLUME 14 PAGE 384.

Counsel urged the Court to hold that the action is statute barred. In reply learned Counsel to the Respondent submitted that the action was not statute barred as the parties were engaged in negotiations. The cause of action only accrued when negotiations broke down. Counsel stated that the issue of statute of limitation is not one of such issues of jurisdiction that can be raised of any stage of the proceedings even for the first time on appeal. In a long line of cases the issue of Statute of Limitation must be specifically raised in the pleadings and evidence led during trial. See BAKARE V NRC (2007) where the Supreme Court held as follows:

“Limitation of action is the principle of law requiring the Plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in the Court of law within the time limited by the law otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. This principle is used as a defence in actions in tort and contract amongst other actions. The law requires that it must be sufficiently pleaded or otherwise it is deemed to have been waived”.

Also in U.B.R.B.D.A. v ALKA (1998) 2 NWLR (PART 547) PAGE 328, where it was held as follows:

“Where a defendant relies on a special defence like the statute of limitation, such a defence has to be specially pleaded. In the instant case, the Appellant failed to plead the Public Officers Protection Act as a defence to the Respondents’ case and having failed to do so, the Appellant waived such a defence and submitted to the jurisdiction of the Court and such an issue cannot therefore be raise an appeal”.

Counsel submits that where a Defendant fails to plead Statute of Limitation it would be taken that he had waived his right to the defense. See ESTATE OF ABACHA V EKE SPIFF (2003) FWLR (PART 144), CHIME V. ATTORNEY-GENERAL OF THE FEDERATION (2008) All FWLR (PART 439) PA6E 530.

Learned Counsel submitted that the Defendant did not plead that the action was statute barred and it is deemed that the Appellant had waived it. Counsel therefore urged the Court to discountenance this issue of jurisdiction as it is deemed that the Appellant had waived it.

This appeal is anchored on Suit No. BA/37/2003 which itself is an offshoot of Suit No. BA/08m/2000. Both parties in their statement of claim and statement of defence stated clearly that the said transaction that originated these two sister cases was contracted on 4th June 1993. The Respondent in this appeal in Suit No. BA/08m/2000 initiated the suit in 2000.

These dates were not in issue. The question here is whether a suit initiated in 2000 a clear 7 years after the event – the contract of sale was initiated within time or was it statute barred-

A case is said to be statute barred when the time prescribed by the Statute of Limitation has extinguished. All the parties to this contract are resident in Bauchi and the contract of sale was negotiated in Bauchi, Therefore the limitation law of Bauchi State is the relevant law in this appeal.

Section 18 Part III of the Bauchi State Limitation Law provides as follows:

“No action founded on contract, tort or any other action specifically provided for in part 1 and II of this law shall be brought after the expiration of five years from the date on which the cause of action accrued”.

The limitation period of Bauchi State is five (5) years even though the Limitation Law or Act is six (6) years.

In the instant case, the contract of sale was entered into between the parties on 4th June 1993. The Respondent filed the first Suit No. BA/08m/2000 in the year 2000. The subsequent Suit No. BA/37/2003 for specific performance on the said contract was initiated in 2003.

In considering whether Court has jurisdiction to entertain any action brought before it, the Court is guided by the claim before it. The Court has to look critically, at the writ of summons and the statement of claim.

GAFAN V GOVERNMENT, KWARA STATE (2007) 4 NWLR (PART 1024) PAGE 375, ONUORAH V K.R.P.C. (2005) 6 NWLR (921) PAGE 393, TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PART 117) PAGE 517, NKUMA V ODILI (2006) 6 NWLR (PART 977) PAGE 587.

Where the jurisdiction of a Court is challenged, the Court is entitled under Section 6 of the 1999 Constitution to consider the Plaintiff’s claim before it, in order to decide, whether it has the jurisdiction to entertain it.
ADELEKE V OSHA (2006) 16 NWLR (PART 1006) PAGE 608, EGBEBU V IGP (2006) 5 NWLR (PART 972) PAGE 146.

The learned counsel for the Respondent in his submission stated succinctly that the Appellant had waived his defence for the limitation law of Bauchi State which provides for only five (5) years.

A distinction must be drawn between the two types of jurisdiction namely: jurisdiction as a matter of Procedural Law and jurisdiction as a matter of substantive Law. Whilst a litigant can waive the former, no litigant can confer jurisdiction on the Court where the Constitution or statute or any provision of the Common Law says that the Court does not have jurisdiction. A litigant may submit to the procedural jurisdiction of the Court for instance where a writ has been served outside jurisdiction without leave. NDAYAKO V. DANLORO (2004) 13 NWLR (PART 889) PAGE 187.

Where the jurisdiction of the Court is challenged, the Court should expeditiously attend to it particularly at the trial stage and even an appeal. The Court can also raise the issue of jurisdiction suo motu so long as the parties are accorded the opportunity to react to the issue.

AJAYI V. MILAD ONDO STATE (supra). AMODI V. NNPC (2000) 6 SC (PART 1) PAGE 66, GALADIMA V. TAMBAI (2000) 6 SC (PART 1) PART 196.

The learned Counsel to the Respondents argued that even though the contract was entered into on 4th June 1993 that negotiations were on going through out and only when the Respondent got frustrated did he file the first suit in 2000. Learned Counsel argued that the cause of action only arose when the Respondent got frustrated.

When does a cause of action accrue? A cause of action accrues when there is someone to sue and all the facts that would ground an action have happened.
A cause of action is the factual situation which a Plaintiff relies upon to support his claim, recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. The factual situation must, however constitute the essential ingredients of an enforceable right as claimed. ASABORO V. PAN OCEANIC OIL (NIG.) LTD. (2006) 4 NWLR (PART 971) PAGE 595, MOBIL OIL PLC. V. DENR LTD. (2004) 1 NWLR (PART 853) PAGE 142, NICON INSURANCE COMPANY V. OLOWOFOYEKU (2006) 5 NWLR (PART 973) PAGE 244.

The cause of action in this case accrued when the contract of sale was entered into on 4th June 1993. That is the date of the event whereby the cause of action becomes complete so that the aggrieved party can begin and maintain his action SHELL PETROLEUM DEVELOPMENT COMPANY (NIG.) LTD. V. FARAH (1995) 3 NWLR (PART 382) PAGE 149. ALESA V. ALADETUYI (1985) 6 NWLR (PART 403) PAGE 527, ADEOSUN V. JIBESUN (2001) 14 WRN PAGE 106.

The Respondent in his submission stated that it was only when he got frustrated did he file an action in Court. As of that time, the action was already statute barred. By virtue of the Limitation Law or Act, a right of action for breach of contract is extinguished six (6) years after the date on which the cause of action accrued. In the case of Bauchi five (5) years.

EGBE V. ADEFARASIN (1987) 1 NWLR (PART 47) PAGE 20, BRITISH AIRWAYS V. AKINYESOYE (1995) 1 NWLR (PART 374) PAGE 722, YAKUBU V. NITEL LTD. (2006) 9 NWLR (PART 985) PAGE 376.

In the instant case, the Appellant challenged the jurisdiction of this Court to entertain Suit No. BA/37/03 on the basis of Res Judicata. However the two suits initiated by the Respondents are both statute barred. The Bauchi Limitation Law stipulated five (5) years. The general Statute of Limitation stipulated six (6) years. Whichever of the two laws both suits are statute barred BA/08m/2000 instituted in 2000 is 7 years from the time of the contract. Suit BA/37/2003 institute in 2003 is ten (10) years after the contract of sale was entered into.
The Respondent filed his suit seven years after, beyond the time of 5 years stipulates by the Bauchi State Limitation Law. The Court was therefore robbed of jurisdiction to entertain the suits initiated by the Respondents. Once a Court lacks jurisdiction, a party cannot use any statutory provision or any Common Law principle to impose it because absence of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the Court is to strike the action out.

The trial Court lacked jurisdiction to entertain Suit Nos. BA/08m/2000 and BA/37/2003 they being statute barred.

This appeal has merit and it is hereby allowed. The judgments in BA/08m/2000 and BA/37/2003 are hereby set aside. I make no orders as to costs.

MONICA B. DONGBAN-MENSEM, J.C.A:

I agree with the lead Judgment prepared by my learned brother Ndukwe-Anyanwu JCA, allowing the appeal.

The parties cannot even by consent confer jurisdiction on the Court nor can a party waive the want of jurisdiction once substantive law is involved. The submission of the learned Counsel for the Respondent that negotiations where ongoing and therefore the cause of action only accrued of the collapse of such negotiation is without the force of law, and wishful. It is like a defendant in an undefended list suit who files a preliminary objection but fails to file a notice of intention to defend. Once the preliminary objection is dismissed, and there is no notice of intention to defend, the Court is bound to enter Judgment for the Plaintiff.

Negotiation does not place time on hold, time continues to run. The Respondent should have filed his suit even while negotiating and at the collapse of negotiations, he would have fallen back on the suit filed within time.

Both the suits of the Respondent No. BA/08m/2000 and BA/37/2003 which were filed outside the five years limitation period as enacted in Section 18 Limitation Law of Bauchi State Cap 84 Laws of Bauchi State of Nigeria Volume 2:
A cause of action consists of every fact which it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to judgment. When these facts have occurred and provided there are in existence a competent Plaintiff and a competent Defendant, a cause of action is said to accrue to the Plaintiff because he can then prosecute an action effectively. Thus, the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. (ADIMORA V. AJUFO (1988) 3 NWLR (Pt.80) 1 at 17 referred to). (Page 61 paragraphs F – G)

Thus, once there is grievance and a defendant, a suit should be initiated. Ordinarily, the filing of a suit draws the defaulting party to the negotiating table. Will a man wait and negotiate for six years before going to court? The long wait did not stop the effluxion of time which kept moving. I adopt the consequential order made in the lead Judgment.

I hereby adopt the consequential orders made in the lead Judgment.

PHILOMENA M. EKPE, J.C.A:

I had the opportunity of reading before now the Judgment just delivered by my learned brother U.I. Ndukwe-Anyanwu, JCA. His lordship has dealt with all the relevant issues arising for determination in this appeal in very lucid detail. I agree with the reasoning contained in the Judgment as well as the conclusion that the appeal has merit and should be allowed. The trial court lacked jurisdiction to entertain suits BA/08M/2000 and BA/37/2003 being statute barred.

I too allow the appeal and I abide by the order made as to cost.