⦿ CASE SUMMARY OF:
Cil Risk & Asset Management Limited v. Ekiti State Government & Ors (2020) – SC
by PaulPipAr
⦿ TAG(S)
– Statute Barred;
– Cause of action;
– Preliminary objection;
– Demurrer;
– Public officer;
⦿ PARTIES
APPELLANT
Cil Risk & Asset Management Limited
v.
RESPONDENTS
1. Ekiti State Government;
2. Ministry Of Lands, Housing And Urban Development, Ekiti State;
3. Attorney General Of Ekiti State;
4. Afe Babalola University;
⦿ CITATION
(2020) LPELR-49565(SC);
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, J.S.C.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Peter Nwatu Esq.;
* FOR THE RESPONDENT
– Olalekan Olatawura Esq. (1st – 3rd respondent);
– Oluwasina Ogungbade (4th respondent);
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⦿ FACT (as relating to the issues)
The Appellant’s statutory Right of Occupancy (R of O), the grant of which was evidenced by the Certificate of Occupancy (C of O) No. DG 00104/2007 registered in the Lands Registry office, Ado Ekiti, Ekiti State, was revoked and the revocation was published in the Ekiti State Government (1st Respondent’s) official Gazette No. 1, Vol. 20 of 20th October, 2016. The Appellant, as the Plaintiff at Ekiti State High Court, sitting at Ado Ekiti, challenged the revocation contending, inter alia, that the revocation was illegal, unconstitutional and a nullity and that it be declared that he remained vested with the R of O over the disputed land the same having neither been extinguished nor in anyway affected in law by the purported revocation. He also sought a declaration that the subsequent re-allocation of the disputed plot of land to the 4th Respondent, who allegedly actively instigated the revocation of the Appellant’s R of O, was illegal, unlawful and a nullity. The Appellant further sought a perpetual injunctive order to restrain the 1st – 3rd Defendants/Respondents from issuing any C of O to the 4th Respondent and/or restraining the 4th Defendant/Respondent from howsoever interfering with his structures built on the land.
The Respondents, as Defendants, had by way of demurrer, contrary to Order 22 Rules 1 & 2 of the Ekiti State High Court (Civil Procedure) Rules, filed Notices of Preliminary Objection on 1st February, 2017 supported by affidavits contending that the trial High Court lacked “jurisdiction to entertain this action and pray(s) that the suit be struck out in limine”.
In a lengthy Ruling (of 53 pages) on the two Notices of Preliminary Objection, the learned trial Judge (C. L Akintayo, J) delivered on 5th June, 2017, sustained the preliminary objection on the grounds that the suit of the Appellant, by virtue of Section 2(a) of Public Officers Protection Act (POPA), was statute barred having not been filed within 3 months after the revocation and further that the Appellant had not disclosed any reasonable cause of action in his statement of claim. His appeal against the decision was unsuccessful hence this further appeal.
⦿ ISSUE(S)
1. Whether by virtue of Section 2(a) of the Public Officers Protection Act the suit of the Appellant at the trial Court was statute barred?
2. Whether the Appellant disclosed, in the Statement of Claim, any reasonable cause of action?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: SUCCEED]
(Each set of Respondents, that is the 1st – 3rd Respondents on one hand and the 4th Respondent on the other, shall pay costs assessed at N600,00.00 to the Appellant.)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
RATIO:
i. The Respondents appear to me to have taken shelter under Section 2 (a) of the Public Officers Protection Act, Cap P41, 2004 LFN (updated up to the 31st day of December, 2010). This Act enacted pursuant to Item 53 of the Exclusive Legislative List and Section 4(2) & (3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, applies only to protect public officers in the “public service of the Federation”.
ii. It has no general application such as to apply or offer protection to public officers in the service of Ekiti State or any other State in the Federal Republic of Nigeria. The public Service of Ekiti State is a matter within the residual list, that is matter neither in the Exclusive Legislative List set out in Part l of the Second Schedule to the Constitution nor in the Concurrent Legislative List set out in the First Column of the Second Schedule to the Constitution.
iii. In my firm view, my Lords, the two Courts below were in error to have acted on Section 2(a) Public Officers Protection Act to strike out the suit of the Appellant for being statute barred. The scope of the Act does not extend to actions founded on recovery of land or breach of contract. The two Courts below had definitely misconceived the scope and spirit of the Act. This issue is resolved in favour of the Appellant against the Respondents.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
RATIO:
i. The second reason given by the trial Court for striking out the Appellant’s suit was that the statement of claim did not disclose any reasonable cause of action. The lower Court subsequently affirmed this obviously perverse finding of fact. The contention that the Appellant, as the claimant, did not in his statement of claim disclose any reasonable cause of action was largely instrumented by the erroneous finding that the suit was statute barred.
ii. It is clear from the Notices of Preliminary Objection that the Respondents made efforts, at this interlocutory stage, to join issues with the Appellant on the salient allegations against them. They also raised special defences in law, without filing defence by way of demurer, to the claims of the Appellant. It does not lie in their mouths to say that the Statement of Claim, in the circumstances, does not disclose any reasonable cause of action against them. The concurrent finding of fact that the Statement of Claim discloses no reasonable cause of action is perverse, and it is hereby set aside.
⦿ REFERENCED
Section 28(1)(4)(6)(7) and 44(a)(e) of the Land Use Act;
Section 44 of the Constitution of the Federal Republic of Nigeria 1999;
⦿ SOME PROVISIONS
THE SUPREME COURT PRACTICE (THE WHITE BOOK English) 1991, vol. 1, pages 172 – 173 paragraph 15/1/23: states that “A cause of action” was held to mean “the subject-matter of grievance founding the action”;
Section 2(a) of the Public Officers (Protection) Act provides as follows:
“(2) Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance of execution or intended execution of any Act or law or of any public duty, or authority or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority, the following provisions shall have effect: (a) the action, prosecution, or proceedings shall no lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”;
Section 51 of the Land Use Act which defines “developed land” as: “Land where there exists any physical improvement in the nature of road, development services, water, electricity, drainage, building, structure or such improvement that may enhance the value of land for industrial, agricultural or residential purposes.”
⦿ RELEVANT CASES
Okafor V. Igbo (1991) 8 NWLR (Pt.210) P.476 where Katsina Alu, JCA (as he then was) held at Pp.483, paras. F-H, Para. A as follows: “There is no general discretion in light on the facts. However, a judge has the power and indeed the duty to call oral evidence to resolve some conflict in affidavit evidence. He has a duty to resolve the conflict if he is to make a finding even where the parties did not initiate it.”
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⦿ NOTABLE DICTA
* PROCEDURAL
* SUBSTANTIVE
It is of course true, and the law is, that where an action is statute barred the effect is that the cause of action is or becomes extinct by operation and it can no longer be maintained in the law Court: SOSAN V. ADEMUYIWA (1986) 3 NWLR (pt.27) 241. Consequently, a cause of action extinguished or statute barred cannot be a reasonable cause of action. – Ejembi Eko, JSC. CIL v. Ekiti State Government (2020)
A cause of action simply means the fact (not evidence) that will be necessary for the plaintiff to prove, if traversed, to support his right to judgment. In other words, it is the reason for the grievance and the complaint to the Court for redress. It includes every material fact the plaintiff must, or shall, prove to enable him succeed against the defendant. Once the Statement of Claim discloses a reasonable chance that the plaintiff will succeed, if not traversed, on his allegations as pleaded; a reasonable cause of action will be said to have been disclosed. It is not material at this stage whether the case of the plaintiff is strong or weak. The only thing important at this stage is whether the Court can decipher from the Statement of Claim if there is either a prima facie triable case or issue or there is a reasonable chance of success if no defence were offered. – Ejembi Eko, JSC. CIL v. Ekiti State Government (2020)
It is no longer in dispute that time begins to run for the purpose of limitation law when the cause of action arose, that is, when the plaintiff becomes aware that his legal right has been breached by the defendant. In other words, time begins to run in this regard, when, there is in existence, a person who can sue and another who can be sued and when, to the knowledge of the plaintiff, all facts have 53 happened which are material to be proved to entitle him to succeed. – Peter-Odili, JSC. CIL v. Ekiti State Government (2020)
In the instant case, the appellant was lawfully allocated the land in dispute by the 1st and 2nd respondents. However, due to unsettled scores and strained relationships existing between the appellant and the 1st respondent, the detailed particulars of which are highlighted at pages 15-17 of Volume 1 of the record, and relying on the 4th respondent’s petition against the appellant, contained at pages 34-39 of Volume 1 of the record, the 1st respondent allegedly actuated by malice and bad faith, purportedly revoked the appellant’s Right of Occupancy over the land in dispute, and thereupon, re-allocated same to the 4th respondent. In purporting to revoke the appellant’s right of occupancy as aforesaid, the 1st respondent failed to serve on the appellant any notice of revocation whatsoever, in flagrant breach of Sections 28(1)(4)(6) and (7), 29 and 44 (a), (e) of the Land Use Act as well as Section 44(1)(a) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). – Peter-Odili, JSC. CIL v. Ekiti State Government (2020)
Flowing from the decision of this Court in Orianzi v A.G., Rivers State (supra), the germane and decisive questions to be posed, with a view to determining the validity vel non of a revocation of a Right of Occupancy under the Land Use Act are no longer limited to: 1. Whether the title holder was served with a notice of revocation of his right of occupancy? 2. Whether the public purpose or overriding public interest for such revocation was spelt out in the notice thereof? 3. Did the acquiring authority revoke the holder’s title in the land, and thereupon, reallocated same to a private individual or private entity? 4. Whether the revocation signified under the hand of a public officer was duly authorized in that behalf by the Governor? The fifth question that must inescapably be posed in addition to the above is: was the title holder in this case, the appellant heard on the proposed revocation of its title? Save for question number 3 which must be answered in the negative to render a revocation of a right of occupancy valid, if the answer to any of questions 1, 2, 4 and 5 is in the negative, such revocation, I posit becomes invalid, ineffectual, null and void. – Peter-Odili, JSC. CIL v. Ekiti State Government (2020)
It is submitted that the jurisprudential basis for the decision of this Court in Orianzi v. A.G., Rivers State (supra) and the requirement of strict compliance with the provisions of the Land Use Act relating to revocation is that expropriatory statutes such as the Land Use Act which encroach on a person’s proprietary rights must be construed as penal laws that is, strictly against the acquiring authority but liberally and sympathetically in favour of the citizen whose proprietary rights are being deprived. – Peter-Odili, JSC. CIL v. Ekiti State Government (2020)
