John Agbaji Attah Ochaga V. Military Administrator of Benue State & Anor(2000)
LawGlobal-Hub Lead Judgment Report
UMOREN, J.C.A.
This is an appeal against the judgment of Kakaan J. sitting at the High Court of Justice, Otukpo, Benue State in suit No.OHC/127/96 dated 11th December, 1996.
The plaintiff in the lower Court, now appellant in this court, took out an originating summons in that court, praying the court for the determination of the following issues:-
“(1) Whether arising from all the issues addressed in the Government white paper of June 21,1984, the Review position of Government and all other documents of Government and its agencies exhibited hereto, it is conclusive and evident that the plaintiff, Mr. John Agbaji Attah Ochoga was personally found culpable and punished for any wrong doings by the Government of Benue State in its various views and decisions on the Report of the Panel on the Operation of the Local Government Joint Account, 1980-1983.
(2) Whether the plaintiff/Mr. John Agbaji Attah Ochoga was found culpable or guilty of any Criminal Act(s) or conduct(s) by the Benue State Government or any other Government Agency as a result of the investigations into the Operation of the Benue State Local Government Joint Account 1980-1983.
(3) Whether the plaintiff Mr. John Agbaji Attah Ochoga was banned, prohibited or black-listed from holding public office or serving in other Government capacities as a result of the Panel set up to look into the Operation of the Benue State Local Government Joint Account, 1980-1983.
(4) Whether the Administrative Panel’s findings and recommendations and the Government’s views are void.”
He sought the following reliefs pursuant to the issues to be determined:
“(a) A declaration that the plaintiff, John Agbaji Attah Ochoga was not personally found culpable nor punished for any wrong doings by the Government of Benue State in its various views and decisions on the Report of the Panel on the Operation of the Local Government Joint Account 1980-1983.
(b) A declaration that the plaintiff was not found guilty of any criminal conduct or act by the Benue State Government or any other Agency of Government as a result of the investigations into the operations of the Benue State Local Government Joint Account, 1980-1983.
(c) A declaration that the plaintiff was never banned, prohibited or blacklisted from holding public office or serving in other capacities of Government as a result of the investigations into the operations of the Benue State Local Government Joint Account, 1980 -1983
(d) A declaration that the Administrative Panel’s findings and recommendations and the government views and decisions in respect of the plaintiff in Exhibit JAAO/2, the Benue State Government white paper, is contrary to rules of natural justice, unconstitutional, null and void and of no consequence whatsoever.”
Filed along with the originating summons were the statement of facts, twenty-three paragraphed affidavit in support, as well as Exhibit JAAO/1 and JAAO/2. Before hearing in the suit commenced, there was filed by the plaintiff a further affidavit of twenty-four paragraphs to which exhibits JAAO/7 and JAAO/8 were exhibited.
On the other hand, the defendants in the lower court and respondents in this court filed a five paragraphs counter-affidavit. The learned trial Judge heard addresses from both counsel for the plaintiff and the defendants on the 29th October, 1996 and adjourned for judgment. On reading through the papers filed and hearing Counsel’s arguments in court, the learned trial Judge called for further addresses on:
“(1) Whether by virtue of the Limitation Edict No.16 of 1988, the action in the above named suit (referring to suit No.OHC127/96) is not statute-barred.
(2) If the action is not statute-barred, whether there is no substantial dispute on the facts.”
In response to the call for further addresses the plaintiff filed a further affidavit and attached to it an unmarked document referred to in the further affidavit as Exhibit JAAO/9. One Celestina Ozouwa, a litigation clerk in the Chambers of Omengala Esq, of counsel, deposed to the further affidavit. Paragraphs 2-4 of it reads as follows:
“(2) That I have the authority and consent of both the plaintiff and his counsel to depose to this further affidavit in response to some of the issues raised in the defendant’s counter-affidavit dated 29.10.96.
(3) That I know as of fact that arguments in the substantive case were taken on the 26.10.96 whereupon the case was adjourned to the 14.11.96 for ruling but recently the Honourable court has requested for further address on certain aspects of the matter.
(4) Since substantial Justice is the current hall-mark of the Judiciary, I am informed by P. A. Omengala Esq of counsel and I verily believe him as follows:
(i) That there is the need to file this further affidavit to bring out certain issues that will be of assistance in the substantive case.
(ii) That the central complaint in the substantive case is the interpretation of Exhibit JAAO/2 and the effect for the letter written by the Military Administrator Benue State and reproduced in paragraph 10 of the further affidavit dated 27.9.96 a copy of which is ‘annexed hereto and marked Exhibit JAAO/9.
(iii) That the originals of the documents above referred in paragraph 4(ii) are in possession and custody of the defendants and notice to produce the original copies thereof is hereby given to the defendants failing which the copies exhibited will be relied upon for consideration and justice of the case.
(iv) That the originals of all documents exhibited to the substantive case are all in possession of defendants and all efforts to obtain copies other than the white paper published and circulated by the government failed.
(v) That since the defendants are making out matters about the originals of the documents referred to in the substantive case, a production of the originals thereof by them will be in the interest of Justice.”
After taking all the arguments from counsel the learned trial Judge adjourned for judgment which he delivered on 11.12.96 dismissing the plaintiff’s claim. Dissatisfied with the said judgment, the appellant has appealed to this court on the following grounds which with particulars are reproduced hereunder as follows:-
(1) The learned trial Judge erred in law in applying the provisions of the Benue State Limitation Edict No. 16 of 1988 to the facts and circumstances of present case on appeal when the court found as of fact that Exh. JAAO/2 (Government Views and Decisions on the Report and Recommendations of the Panel on the Operations of the Local Government Joint Account 1980-1983) was issued “as far back as 21st day of June,1984.”
Particulars of Error
(i) The trial court found as of fact that Exh. JAAO/2, the crux of the current matter on appeal was issued by the Benue State Government in 1984.
(ii) The Benue State Limitation Edict, 1988, which the learned trial Judge applied to dismiss the appellant’s claim came into force in 1988.
(iii) Even if the cause of action arose in 1984 (which is not conceded) as the trial court held, the provisions of the Benue State Limitation Edict, 1988, will be inapplicable.
(iv) It is trite law that the relevant law applicable to a cause or matter is the law in force at time the cause of action arose. See Chief Utuedor Utih v. Jacob Umuruhrhu Onoyivwe (1991) 1.S.C.N. 25 at 44,(1991) 1 NWLR (Pt.166) 166
- The learned trial Judge erred in law when it was held that the cause of action in the appellant’s claim before the lower court arose in 1984, following the publication of Exh. JAAO/2 when in fact the cause of action arose in 1996 following Exh. JAAO/9 a letter written by the Military Administrator of Benue State addressed to the Chief of General Staff.
Particulars of Error
(i) In Exhibit JAAO/2, the Benue State Government merely ‘Noted’ the recommendations made of and concerning the appellant by the Panel.
(ii) That ‘Nothing’ not being an acceptance of the recommendations by the Government did not give rise to any cause of action in favour of the appellant.
(iii) That contrary to the clear and unamiqous provisions of Exh. JAAO/2, Exh. JAAO/3, the Military Administration issued Exh. JAAO/9 which tended to and gave wrong meanings to Exh. JAAO/2.
(iv) It was this wrong meaning as conveyed by Exh. JAAO/9 that gave rise to the action of the plaintiff which was intended to find the actual meaning of the words contained in Exh. JAAO/2.
- That the learned trial Judge erred in law to have dismissed the plaintiff’s claim having come to the conclusion as he did, that the court has no jurisdiction or lacks the jurisdiction to entertain the claim.
Particulars of Error
(i) That trial court in its judgment held that it had no jurisdiction to entertain the claim and still proceeded to dismiss same.
(ii) It is settled law that when the court has no jurisdiction to entertain a claim, the consequential order is not a dismissal but an order striking out the case. See Ohiaeri v. Adakeze (1992) 2 S.C.N.J. (Pt.1) 76 at 92, (1992) 2 NWLR (Pt.221).
- The learned trial Judge erred in law and came to a wrong conclusion when he declined jurisdiction to entertain the appellant’s complainant arising from Exh. JAAO/9 on the ground that the said Exh. JAAO/9 is a product of Exh. JAAO/2 and thus statute-barred by the operation of the Benue State Limitation Edict, 1988.
Particulars of Error
(i) Exh. JAAO/2 came into existence in 1984 while Exh. JAAO/9 came into existence in 1996.
(ii) Exhibit JAAO/9 has no bearing whatsoever with Exh. JAAO/2 as no provision exists for the Government to interpret or give meaning to Exh. JAAO/2 as was done in the present case.
- Trial court erred in law when it held that it cannot interpret Exhibit JAAO/9 based on Exh. JAAO/2, when it is the interpretation made in Exhibit JAAO/9 and not Exhibit JAAO/2 per se, that is the cause of action.
Particulars
(a) It is concluded that any action found on Exhibit JAAO/2 is statute-barred, though not by the Benue State Limitation Edict as erroneously held by the Judge.
(b) Exhibit JAAO/2 does not apportion any blame on the appellant for any misfeasance or non feasance.
(c) It is only on Exhibit JAAO/9 that the author indicated the appellant.
(d) Exhibit JAAO/9 is not statute-barred.
(e) Appellant’s cause of action arose from the interpretation made on Exhibit JAAO/9 purportedly on account of Exhibit JAAO/2. It is concluded that any action found on Exhibit JAAO/2
(f) The court was therefore empowered, and indeed obliged to considered Exhibit JAAO/9 since it is from the interpretation of Exhibit JAAO/2 contained, therein (JAAO/9) that has given rise to the action.
(g) For the court to decline Jurisdiction and refuse to interpret Exhibit JAAO/9 simply because of it’s offshoot from Exhibit JAAO/2 was an error.
Briefs of argument were filed and exchanged by the appellant and respondents. Each party relied on his brief. Five issues were distilled from the five grounds of appeal by the appellant as set out at page 2 of his brief of argument as follows:-
(1) Whether the lower court was right in applying the provisions of the Benue State Limitation Edict No. 16 of 1988 to the case on appeal fact that the cause of action arose as far back as 21st June, 1984 when EXH. JAAO/2 (Government Views and Decisions on the Report and Recommendations of the Panel on the Operations of the Local government Joint Account – 1980 -1983) was issued.
(2) Whether in the particular circumstances of the case on appeal, it was right for the lower court to have held that it was EXH. JAAO/2 (Government Views and Decisions on the Report and Recommendations of the Panel on the Operations of the Local Government Joint Account- 1980- 1983) constituted or gave right to the cause of action and not EXH. JAAO/9 (a letter written by the Military Administrator of Benue State in 1996 addressed to the Chief of General Staff purporting to interpret EXH. JAAO/2) and thereby come to the conclusion that the action was statute-barred.
(3) Whether the lower court was right in dismissing the claim of the appellant after it came to the conclusion that the court has no jurisdiction to entertain the claim.
(4) Whether the lower court was right in declining jurisdiction to entertain the appellant’s complaint arising from Exhibit JAAO/9 on the ground that same was the product of Exhibit JAAO/2 and thus statute-barred by the operation of the Benue State Limitation Edict, 1988.
(5) Whether the lower court was right to have declined to interpret Exhibit JAAO/9 when sarne was the main complaint of the appellant and not Exhibit JAAO/2 per se.”
The respondents on their part formulated one issue for determination as follows:
“(1) Whether in light of the facts and evidence before the trial court, the appellant action was not in fact statute-barred?”
Considering all the grounds of appeal and the issue distilled from them, it appears to me that the grouse of appellant was whether the action of the plaintiff/appellant was statute-barred. This is also the sole issue as formulated by the respondent, which I adopt.
The appellant in issue No.1, which appears to correspond to the only issue formulated by the respondent raised the questions:-
(1) Whether the action of the appellant was caught by the Benue State Limitation Edict No.16 of 1984, which came into force on 1st April, 1988.
(2) This leads to the next question which is: When did the cause of action accrue to the plaintiff and when did time begin to run against him?
The argument of the appellant on issue No. 1 is that the cause of action arose as far back as 21st June, 1984 when Exhibit JAAO/2 was issued. The lower court agreed with him and relied on the provisions of the Benue State Limitation Edict No. 16 of 1988 which provides for a period of 5 years within which to commence an action. The action not having been commenced within 5 years was in the opinion of the court statute-barred. But by S.1 of the Benue State Limitation Edict, 1988, the operational or commencement date was the 1st day of April, 1988. The appellant further argued that the cause of action accrued to the appellant in 1984 when the said Edict, which has no retrospective effect beyond 1st April, 1988, is not applicable to this case. Learned counsel submitted that the applicable law at the time was the English Limitation Act of 1623 – a pre – 1900 statute of General Application. Learned counsel further argued that it is settled law that the relevant law applicable in respect of cause or matter is the law in force at the time the cause of action (sic) arose. Learned counsel cited Utih v. Onoyivwe (1991) 1 NWLR(Pt.166) 168, (1991) 1 SCNJ 25 at 44; Olaniyi v Aroyehum (1991) 1 SCNJ (pt.1) 40 at 51, (1991) 5 NWLR (Pt.194) 652. Learned Counsel finally submitted that the Benue State Limitation Edict came into force on 1st April, 1988 and so is not applicable to the determination of the case on appeal. He urges the court to allow the appeal on this issue.
I will wish to spend a little time on this issue as I am of the view that it can dispose of the appeal. If the action is statute-barred by operation of law, there is nothing more to be done except to dismiss the appeal, if not then other issues, if relevant, may be considered.
On the Issues that the trial court applied the Benue State Limitation Edict instead of the English Limitation Act, 1623, the respondent’s answer was that:
“If a party is entitled to a remedy or a relief and is rightly claimed, he does not lose same by applying for it under a wrong law”. Falobi v. Falobi (1976) 9-10 SC.1.
I agree with him since the Judge can, in the interest of justice use the applicable law.
The respondent also submitted that there is a general consensus that whether action was statute-barred whether by the provisions of the Benue State Limitation Edict or the English Statute Law of Limitation, it would still produce the same effect – the matter remains statute-barred.
There is no dispute:
(1) That Exhibit JAAO/2 was issued on 21st June, 1984.
(2) That Benue State Limitation Edict commenced on 1st April, 1988.
(3) That claim before the court and the reliefs sought at pages 2 to 4 of the record do not contain Exhibit JAAO/9.
It is therefore essential to consider when the cause of action arose, when the action was commenced and which statute of Limitation applied. By the time answers are found for these posers, the issue of Limitation would have resolved itself.
As a matter of interest and for a start, what is a cause of action? Oputa J.S.C. in Egbe v. Adefarasin (1987) I NWLR (Pt. 47) 1 at 20 attempted a definition of a cause of action as: factual situation which gives a person a right to judicial relief.
In his words Oputa J.S.C.said:
“It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action – it is the factual situation which gives a person a right to judicial relief. A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right.”
In Ibrahim v. Osim (1988) 3 NWLR (Pt.82) 207 cause of action was defined as the entire set of circumstances giving rise to an enforceable claim. It is in fact the fact or combination of facts which give rise to a right to sue and it consists of two elements:
(i) The wrongful act of the defendant which gives the plaintiff his cause of complaint, and
(ii) The consequent damage.
See also Savage v. Uwechia (1972) 1 All NLR (Pt.1) 251; Bello v. A-G., Oyo State (1986) 5 NWLR (Pt.45) 828 which were followed Thomas v. Olufosoye (1986) 1 NWLR (pt. 18) 669.
In Olaniyi v. Aroyehun (1991) 5 NWLR (Pt.194) 652, it was held that the law applicable to a matter is that in force at the time the cause of action arose and not the law when the writ of summons was filed. See also Omisade v. Akande (1987) 2 NWLR (Pt.55) 158, Mustapher v. Governor of Lagos State (1987) 2 NWLR (Pt.58) 539; A-G., Lagos State v. Dosunmu (1989) 3 NWLR (pt.111) 552. This is because the rights of parties in an issue in litigation are decided on the basis of the substantive or organic law in force at the time of the act in question. See Olaniyi v. Aroyehun (supra) at 691 paragraphs C-E.
The Limitation Edict of Benue State No. 16 came into force on 1st April 1988. By its section 1, it has no retrospective effect. Therefore, the operational or commencement date was 1st April, 1988. Before that date it was of no effect even though it was in existence since 1984.
The question next to ask is, was there no limitation law applicable to Benue State before 1988?
The law of limitation applicable in Benue State before the coming into force of the Benue State Limitation Edict No. 16 of 1988 was by operation of S.28 of the High Court Law Cap. 49, Laws of Northern Nigeria, 1963, the English Limitation Act, 1939 which replaced the Limitation Act of 1623 which was a law of general application. S. 2(1) (a) of the said Limitation Act, 1939 provides for a uniform period of Limitation of six years, for all actions founded on Tort. So that it is clear that before 1988, the period of limitation on an action founded on tort was six years. This period of Limitation begins to run from the date on which the cause of action accrued, by S. 2(1) of the Limitation Act 1939.
It is not in dispute that Exhibit JAAO/2 was made in 1984. That was when the cause of action accrued, but 1996 when this action was commenced, the plaintiff’s cause of action has been extinguished, after twelve years had elapsed. It does not matter whether it was under the English Statute of Limitation 1939 or the Benue State Limitation Edict No. 16 of 1984 assuming it was applicable.
The appellant in his brief appears to make much fuss about Exhibit JAAO/9. He submitted that it was Exhibit JAAO/9 that gave rise to the cause of action and not Exhibit JAAO/2. By this submission, the appellant appears to be approbating and reprobating at the same time. It is trite that it is the claim before the court that determines jurisdiction of the court. The claim before the lower court and the reliefs sought are at pages 1-4 of the record. The affidavit in support is at pages 6-9, paragraphs 1 – 23 of the record. The exhibits attached thereto are Exhibits JAAO/1 – JAAO/8. Statement of facts and grounds upon which the reliefs are sought are at pages 11-14 of the record. I have taken pains to peruse the pages of the record above referred to and I have found no reference to Exhibit JAAO/9. At page 33, I came across a paper titled ‘Office of the Military Administrator’ dated 19 – 8 – 96 and addressed to Chief of General Staff. This document is not mentioned in the claim or in the affidavit and is not related to the reliefs sought. It appears it was thrown in there as an after thought. Even if this document were to be given any interpretation, I am unable to see which of the reliefs it could be tied to. The appellant may have put himself in the position of a drowning man that catches every straw. It appears this straw does not assist to keep him afloat. I agree with learned trial Judge that once the plaintiff’s cause of action had been extinguished with regard to Exhibit JAAO/2, interpretation of Exhibit JAAO/9 is a mere academic exercise which no court would want to indulge in.
However, in reaching the same conclusion as I have done, the learned trial Judge put it thus:
“As I said earlier on, the plaintiff has come to this court by originating summons seeking a number of reliefs already set out above. The whole essence of originating summons as discernible from Order 38 rule 1 of the High court (Civil Procedure Rules) is a summary procedure for litigations in which the main issue is likely to be one of statutory interpretation of the construction of other formal documents. The reliefs sought are themselves based on the issues for determinating and in this case the issues for determination bother on the interpretation to be given on the Government views and decisions on the report of the Panel on the Operation of the Local Government Joint Account 1980 -1983. The government’s views and decision as shown on Exhibit JAAO/2 were given on the panels report as far back as 21” day of June, 1984. By the Benue State Limitation Edict No. 16 of 1988, any action arising from the decision and views of Government on that report is statute-barred if that action is not brought within five years next after such decision of Government. Plaintiff having not commenced his action within five years has conceded that his action is statute-barred but only as it pertains the rules of natural justice affecting him. The plaintiff’s concession to my mind is the crux of the matter. If the plaintiff is no longer pursuing the fact that the panel’s report and Exhibit JAAO/2 thereon which he says constitutes an infraction of his right under the rules of natural justice, what is left of the matter? My view is that with that concession, all the issues for determination are taken as abandoned and without the issues for determination, the substratum of the case is gone since the reliefs cannot be based on nothing. With the tap root of the case, the action is taken as dead. What then is the basis of the reliefs sought of me? It has been held that an issue that could have been made the subject of an action for a declaration may cease to be justiciable because the situation on which the claim might have been founded no longer exists. Howard v. Oickford Tool Co. (1951) AC 797. The court will concern themselves only with living issues.
Apart from that, even though the action of the plaintiff is statute barred and the plaintiff admits it is, plaintiff from the less prays for an interpretation of the Report and Government views thereon. Since the instrument to be interpreted is statute barred, I have my doubts if I have the jurisdiction to interpret it. Considering the issue of competence of a court, the Federal Supreme Court”
Per BARIAMIAN, F. J. in Madukolu & Ors. v. Nkemdilim (1962) 1 ALL NLR (pt.4) P. 587 at 595, (1962) 2 SCNLR 341 at 348 held.
“A court is competent when:
(1) It is properly constituted as regards numbers and qualification of the members of the Bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within it’s jurisdiction and there is no facture in the case which prevents the court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. Exhibit JAAO/2 is the subject matter of this case. I had earlier held that it is statute-barred. That means any action relating to it is not maintainable, such action will itself be dead. I therefore have no jurisdiction to entertain it.”
This issue, to my mind, disposes of all the issues raised by the appellant. In the result, I find this appeal unmeritorious and I hereby dismiss it and affirm the decision of the lower court. I make no order as to costs.
Other Citations: (2000)LCN/0713(CA)