Chief Yakubu Sani V Okene L.G Traditional Council & Anor (2008)
LAWGLOBAL HUB Lead Judgment Report
NIKI TOBI, J.S.C.
The Kogi State Government in a letter dated 17th July, 1995 appointed the appellant a member of Okene Local Government Traditional Council, the 1st respondent. He took oath of office in accordance with the law. On 19th January 1998, the respondents served the appellant a letter removing him from office.
Angered by his removal as a member of the Traditional Council, appellant sued on 11th June, 1998. On 1st January, 2001 respondents filed a motion by way of preliminary objection challenging the competence of the action by virtue of section 2(a) of the Public Officers Protection Law, Cap 111 Volume 3, Laws of Northern Nigeria 1963. They argued that the action was statute barred in that it was not commenced within three months after the act complained of. The appellant opposed the motion.
The learned trial Judge upheld the preliminary objection and dismissed the action. An appeal to the Court of Appeal was dismissed. He has come to this court. Briefs were filed and duly exchanged. Appellant formulated two issues for determination:
“1. Whether the lower court was right in not reversing the decision of the trial court on the ground that the preliminary objection was premature for consideration at the interlocutory stage of the proceedings (Grounds II and III of the notice of appeal).
- Whether the lower court was right in not reversing the decision of the trial court that the defendants are protected by section 2(a) of the Public Officers (Protection) Law, as applicable in Kogi State (Ground I of the notice of appeal).”
The respondents also formulated two issues for determination:
“1. Was the court below right when it affirmed the decision of the trial court that the court was entitled to consider and determine in limine the preliminary objection of the respondents that the action was statute barred (Grounds II and III of the notice of appeal).
- Was the court below correct when it affirmed the decision of the trial court that the respondents were protected by section 2(a) of the Public Officer (Protection) Law, as applicable to Kogi State (Ground I of the notice of appeal).”
Learned counsel for the appellant, Hon. Tony Anyanwu, submitted that the Court of Appeal erred in not reversing the decision of the trial court on the ground that the preliminary objection was premature for consideration at the interlocutory stage of the proceedings. Having held that the trial court could not determine whether or not the respondents acted outside the colour of their offices or outside their statutory or constitutional duties, the trial court erred when it nonetheless proceeded to dismiss the action on the basis of the Protection Law, counsel argued. The trial court should have declined hearing the interlocutory application as the same was premature and had the potential to prejudice the substantive suit, counsel further argued. Citing Iweka v. S.C.O.A (Nig) ltd. (2000) 7 NWLR (Pt. 664) 326 at 329, learned counsel submitted that the trial court erred when it prejudged the substantive suit by dismissing the action.
Learned counsel submitted that the Protection Law does not apply where public officers are sued for an act not done in pursuance or execution or intended execution of any law or of any public duty or authority. The law, counsel argued, does not protect officers alleged to have abused their office. He cited Offobuche v. Ogoja Local Government (2001) 16 NWLR (Pt.739) 458 at 475. He contended that the case of Ekeogu v. Aliri relied upon by the trial court is not applicable as the facts are distinguishable from the appellant’s action. Counsel submitted that because of the interlocutory stage of the proceedings, the learned trial Judge should have held the preliminary objection premature, as it was impossible to determine the objection, without considering the respondents capacity under the Chiefs Law.
Taking Issue No.2, learned counsel submitted that the Court of Appeal erred in not reversing the decision of the trial court that the respondents are protected by section 2(a) of the Public Officers (Protection) Law. Referring to section 2(a) of the Public Officers (Protection) Law, sections 7 and 24(A) of the Kogi State Chiefs (Appointment Deposition and Establishment of Traditional Council) Law No. 7 of 1992 and the cases of Alhaji Ibrahim v. Judicial Service Commission, Kaduna State (1998) (64) LRCN 5044 at 5070;(1998) 14 NWLR (Pt.584) 1; Enwezor v. Onyejekwe (1964) All NLR 14; Anya v. Iyayi (1993) SCNJ (without the page number) and Agbahornovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) 170 at 176, learned counsel submitted that the respondents have no power to remove the appellant from the membership of the traditional council. He urged the court to allow the appeal.
Learned counsel for the respondents, Fola Ajayi, Esq. submitted on issue no. 1 that the trial court was right when it upheld the preliminary objection which was affirmed by the Court of Appeal. The decision, counsel contended, is unassailable because it is consistent with and supported by decisions of this court. He cited Nnonye v. Anyichie (2005) 1 SCNJ 306 at 318;(2000) 1 NWLR (Pt. 639) 66; Ekeogu v. Aliri (1991) 3 SCNJ 45 at 51;(1991) 3 NWLR (Pt.l79) 258; Egbe v. Adefarasin (1985) 1 NWLR (pt. 3) 549 at 568; Egbe v. Alhaji (1990) 1 NWLR (pt. 128) 546 at 546; P. N. Uddoh Trading Co. Ltd. v. Abere (2001) FWLR (PI. 57) 900 at 922;(2001) II NWLR (Pt.723) 114; Nwakwere v. Adewunmi (1966) 1 All NLR 12; Lagos City Council v. Ogunbiyi (1969) 1 All NLR 297 and Ajagunna v. Attorney-General of Ondo State (2005) 21 WRN 153.
Dealing with issue no.2, learned counsel contended that as the decision of the trial court was predicated upon findings of facts which were not disputed, the appellant cannot raise the issue here. He cited Dabo v. Abdullahi (2005) 25 CNJ 76 at 95;(2005) 7 NWLR (Pt.923) 181. He argued that as the decision of the trial court that the act of the respondents was done in pursuance or execution of their public duties under the law, was not challenged in the Court of Appeal, all submissions predicated upon it in this court are unavailing and must be discountenanced. He urged the court to dismiss the appeal.
Let me first take the issue that the preliminary objection raised by the respondents was premature. The word “premature” means introductory, initiatory, preceding, temporary and provisional. On the other hand, an objection is an act of objecting, that which is, or may be presented in opposition. It is an adverse reason or argument. It connotes a disapproval. Preliminary objection as the expression connotes, is an objection which is initiated or commenced at the earliest opportunity. A preliminary objection should be taken first in time because it could be liable to time in our adjectival law. Perhaps, apart from preliminary objection as to the jurisdiction of the court, most others are liable to time and could be subject of waiver.
A preliminary objection is raised where a party fails to comply with the enabling law and or the rules of court. See Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 288) 384; Oloriode v. Oyebi (1984) 1 SCNLR 390. The proper stage at which a defendant should raise a preliminary objection to the plaintiff’s suit should be either at the inception or early stage of the proceedings. See Carlen (Nig) Limited v. University of Jos (1994) 1 NWLR (PI. 323) 631. There are instances where it is permissible to raise a preliminary objection that can terminate a case at the threshold; the competence of which is where the competence of an action is called into question. In a case where the competence of the action is in issue, the court not only has the authority but also the duty to determine the action in limine, as in this appeal, where lack of competence is established. This is because the competence of an action robs on the jurisdiction of the court to hear it within the classification of the elements that make jurisdiction as expounded in Madukolu v. Nkemdilim (1962) 2 SCNLR 341. See Nnonye v. Anyichie (2000) 1 NWLR (pt. 639) 66.
In the light of the above, I do not agree with the submission of learned counsel for the appellant that the preliminary objection was premature, if the word premature as used by counsel retains its dictionary meaning of an event happening before the proper or usual time. It is good law that a preliminary objection could be taken at the interlocutory stage if the objector so desires. The issue accordingly fails.
I take the second issue. The cause of action in this matter arose on 19th January, 1998 when the respondents served a letter on the appellant removing him from office as a member of the Okene Local Government Traditional Council. Appellant filed the action on 11th June, 1998, a period of more than four months when the cause of action arose. Dealing with the issue, Rhodes-Vivour, JCA in his judgment said at pages 107 and 108 of the record:
“In this appeal uncontroverted facts reveal that the appellant received from the respondents a letter dated 19/1/98 informing him of his removal from the Okene Local Government Traditional Council. The appellant claimed to have received the said letter at the tail end of January, 1998 (see paragraph 11 of the statement of claim). It was at the end of January 1998 that the appellant had a cause of action. He was expected by the provisions of section 2(a) of the Public Officers (Protection) Law Cap 111 Laws of Northern Nigeria 1973 to commence action against the respondents within three months from the 31st of January, 1998, that is to say on or before the end of April 1998, but in this case he took out a writ against the respondents on the 11th of June, 1998. It is obvious that the appellant’s suit is no longer maintainable, it being statute barred.”
I am in grave difficulty to fault the above conclusion of the learned Justice of the Court of Appeal. He is right. It does not appear that the Court of Appeal dealt with the issue of the respondents acting outside their colour of office. The learned trial Judge dealt with it at page 39 of the record. He said:
“At this stage, the court cannot go into the merit or demerit of the case, hence it cannot determine whether or not the defendants acted outside the colour of their office or outside their statutory or constitutional duties.”
I entirely agree with the learned trial Judge. The issue before the court was whether the action was statute barred or not and that involved calculation of months and days. The learned trial Judge did the calculation and came to the conclusion that the action was statute barred. This was rightly affirmed by the Court of Appeal.
In sum, this appeal has no merit and it is dismissed. I award N50,000.00 in favour of the respondents.
SC.215/2002