Mr. Pius Okan & Anor V. Oredo Local Government Council & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A. (Delivering the Leading Judgment)

By a Writ of Summons taken out on 3/5/05, the Appellants as Plaintiffs at the High Court Benin, instituted an action against the Respondents as Defendants and crystallised their claims in paragraph 13 of their Statement of Claim in the following terms:

“13

(i) A DECLARATION that the Defendants have no right to approve the premises of the Plaintiff for the use of a private Motor Park.

(ii) A DECLARATION that the purported letter dated 29/3/03 is null and void and constitutes an infringement on the right of the Plaintiff acquire property guaranteed under the 1999 Constitution.

(iii) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their Agents, Servants and Privies from further approving the premises of the Plaintiff for the use of a Private Motor Park or directing anyone to use same as a Private Motor Park.

(iv) THE SUM OF N10,000,000,000.00 (Ten Billion Naira) for the untold hardship inflicted on the Plaintiffs by the implementation of the approval of the said Motor Park as the Plaintiffs have lost huge revenue due to the Plaintiffs and the harassment and embarrassment suffered by the Plaintiffs.

(v) AN ORDER setting aside the purported letter of approval issued by the Defendants as same is unconstitutional and constitute illegality.

Upon service on them of the Appellants’ Statement of Claim, the Respondents entered appearance and filed their Statement of Defence wherein in paragraph 11 they pleaded that the action was statute-barred having been commenced outside the prescribed statutory period. Subsequently by Motion on Notice dated 1/7/05, the Respondents challenged the competence of the action on the same ground as was raised in the aforesaid paragraph 1 of their Statement of Defence. The learned trial Judge, Idahosa J, as he then was, took arguments on the motion and in a considered ruling delivered on 15/11/05 upheld the objection and struck out the action. The present appeal is against that ruling.

Three Grounds of Appeal were filed which, without their particulars, read:

“1. The learned trial Judge erred in law when he held that the 2nd and 3d Respondents are Public Officers only because the Appellants described them as the Executive Chairman and Secretary respectively of the 1st Respondent.

2. The learned trial judge erred in law when he held that the 2nd and 3rd Respondents were Public Officers because the Appellant made the averment making them out as Public Officers hence the action was held to be statute barred.
3. The learned trial Judge erred in law when he held that the Appellants cause of action is statute-barred, the cause of action having arisen on the 29/03/03 and the Writ of Summons filed on 03/05/05.”

and from which the Appellants in their brief, formulated two issues for determination namely:

“(1) Whether the learned trial Judge was right when he held that the 2nd and 3rd Defendants were Public Officers within the meaning of the 1999 Constitution on the mere ground that the Appellants described them as Executive Chairman and Secretary of the Local Government Council respectively in their Statement of Claim.

(2) Having regard to the to law of evidence on record whether the learned trial Judge was right when he held that the case of the Appellants against the Respondents was statute-barred.”