Statute Of Limitation Bars An Action Not The Cause Of Action

Omini & ORS V. Yakurr LGA & ors (2019) LPELR-46300 (CA)

In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar

ON FRIDAY, 11TH JANUARY, 2019

Suit No: CA/C/14/2011

Before Their Lordships:

MOJEED ADEKUNLE OWOADE, JCA
YARGATA BYENCHIT NIMPAR, JCA
MUHAMMED LAWAL SHUAIBU, JCA

Between

1. MACGREGOR ETENG OMINI
2. ENO OKOI IBIANG
3. BENEDICT IWARA EYONG
4. BASSEY OBONO ETTAH
5. EUGENE WILLIAMS
6. EYONG ETENG ITA
7. OMINI IKPI EFFIOM
8. MACAULAY AKONG
9. ENANG AKPAMA OBETAN
10. UBI OFEM OLOGBO
11. ONUN INAH EYO
12. ETENG ONUN ETENG
13. AUGUSTINE IWARA OFEM
(for themselves and on behalf of staff of Yakurr Local Government
Area affected by the stoppage of their salary)
Appellant
And
1. YAKURR LOCAL GOVERNMENT AREA
2. LOCAL GOVERNMENT SERVICE COMMISSION
3. ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE,
CROSS RIVER STATE OF NIGERIA
Respondent

LEAD JUDGMENT DELIVERED BY MUHAMMED LAWAL SHUAIBU,
J.C.A.
FACTS OF THE CASE

The Appellants are retired military personnel who took up a
fresh appointment with the 1st Respondent and whose salaries were
stopped. They commenced a civil suit against the Respondents on
January 15, 2007 for payment of their salaries.

Upon being served with the originating processes, the 2nd and
3rd Defendants now Respondents raised a preliminary objection
praying for the dismissal of the entire suit on the following
grounds:-

1. The suit is statute barred and is not maintainable against
the 2nd and 3rd Defendants.

2. Even if the suit is maintainable, it does not disclose any
cause of action against the 2nd and 3rd Defendants.

3. The suit is incompetent not having complied with conditions
precedent to the filing thereof, thus robbing the Court of
jurisdiction to hear and determine same.

Learned counsel for both sides filed and adopted their written
submissions. In a considered decision, the learned trial Judge of
High Court of Cross River State, held that the cause of action
arose in June, 2006 and the suit which was commenced on January 15,
2007 did not comply with Section 1 (1) (a) of the Public Officers
Protection Law, Cap 17 Volume 5, Laws of Cross River State.

He subsequently dismissed the suit for being statute barred.
Dissatisfied with the above, the Appellants approached the Court of
Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on the following issues:

1. Was the learned trial judge correct when she held that the
suit was statute barred under Section 2 (a) of the Public Officers
Protection Law of Cross River State of Nigeria 2004 even though
Section 58 of the Local Government Law of Cross River State of
Nigeria Cap L 16, 2004 (as amended) provides that suit against
local government Area Councils (such as the 1st Respondent) must be
commenced one year after the occurrence of the cause of action?

2. Whether the learned trial judge was correct when she refused,
failed and or neglected to consider and pronounce upon all issues
raised and canvassed by the appellants?

COUNSEL SUBMISSIONS

Proffering argument on issue No. 1, learned Appellants’ Counsel
submitted that Section 1(1) (a) of the Public Officers Protection
Law of Cross River State does not apply to the present suit in view
of the provisions of the Local Government Law of Cross River State
which was specifically enacted to make provisions for the
establishment, structure, composition, functions, finance and
administration of Local Government Councils in the State and
therefore takes precedence over the Public Officers Protection
Law.

Still in argument, learned counsel submitted that the Local
Government Law is a specific law where as the public officers
protection law is a general law, covering all the categories of
public officers.

Thus, where there is conflict between a specific and a general
law, the specific one would take precedence over the
general legislation. He referred to REX V ZIK PRESS LTD (1947) 12
WACA 202 at 205.

On issue No.2, the Appellants argued that the trial Court was
wrong not to have considered and applied the issues of the
continuous nature of their action and the infraction of their
Fundamental Rights to fair hearing which failure had adversely
affected the findings of the Court relying on the cases
of ONYEDIBE V MADUEKWE (2012) ALL FWLR (pt. 630) 1342 at 1352
and KARIBO  V GREND (1992) 3 NWLR (pt 230) 426.

In respect of their issue No. 1, learned counsel for the 2nd and
3rd Respondents argued that since the Appellants joined the 2nd and
3rd Respondents in the suit, it logically follows that the
applicable law that determine whether the action is statute barred
or not is the Public Officers Protection Law of Cross River State
and not the Local Government Law. And the Appellants having not
commenced their action within the period provided by the applicable
law, their action is not maintainable as same is statute –
barred.

He referred to EGBE V ADEFARASIN (1985) 1 NWLR (pt. 3) 549
ELABANJO V DAWODU (2006) ALL FWLR (pt. 328) 604 and TAFIDA
V ABUBAKAR (1997)3 NWLR (pt. 233) 91.

On issue No.2, learned counsel for the 2nd and 3rd Respondents
contended that the trial judge had considered all the issues
canvassed by the parties inclusive of the case of AMAO v. CIVIL
SERVICE COMMISSION (1991) 71 NWLR (pt. 25) 18 being relied upon by
the Appellants’ counsel, notwithstanding his failure to submit the
said authority.

He thus submitted that the learned trial judge rightly
identified the stoppage of appellants’ salaries in June 2006 as the
cause of action, while the suit was commenced on January 15, 2007
and concluded that the action was statute barred. And therefore the
trial judge considered all the issues canvassed before arriving at
his conclusion.

RESOLUTION OF ISSUES

In resolving issue 1, the Court in defining cause of action
cited the case of ALIU BELLO & ORS V.  ATTORNEY GENERAL, OYO
STATE (1986) 5 NWLR (pt. 45) 828.

The Court observed that the point of divergence between the
parties on this appeal is which of the two State Legislations
regulates the cause of action as regards the application of statute
of limitation.

The Court held that a plaintiff’s right of action eventuates
from the existence of a cause of action.

Therefore, what a statute of limitation bars is an action not
the cause of action. See SIFAX (NIG) LTD  V  MIGFO (NIG)
LTD (Supra).

Quoting the relevant provisions of Section 58 of the Local
Government Law of Cross-River State of Nigeria, Cap. 216, 2004 and
the provisions of Section 1 (a) of the Public Officers Protection
Law, Cap P7 Laws of Cross River State of Nigeria, 2004, the Court
stated the position of the law that where a specific provision
follows a general provision, the specific provision overrides the
general provision.

Hence, where there are two provisions, one specific and the
other general, covering the same subject matter a case falling
within the words of the specific provision must be governed thereby
and not by the terms of the general provisions.

See SCHRODER V MAJOR (1989)2 NWLR (pt. 101)1, F.M.B. N.  V
 OLLOH (2002) 9 NWLR (pt 773) 475 AKPAN V  STATE (1986) 3
NWLR (pt. 27) 225 and N.N.D.C.  V  PRECISION ASSOCIATES
LTD (2006) 16 NWLR (pt. 1006) 527 at 553.

The Court stated the principle of generalia specialibus non
derogant, which means where a specific provision is made to govern
a particular subject matter, it is excluded from the operation of
general provision.

The Court held that the provision of Public Officers Protection
Laws Cap P7, Laws of Cross Rivers, 2004 are specific provisions
with respect to limitation of action against public officers.

The provisions of the Local Government Laws of Cross River State
on the other hand, is a general law dealing with establishment,
structure composition, finance, etc. The Court cited the case of F.
B. N. PLC  V  MAIWADA (2013) 5 NWLR (pt. 1348) 444 at
497, where the Supreme Court while considering the provision of the
Companies and Allied Matters Act vis-a-vis the provisions of the
Legal Practitioners Act in respect of signing of Court process,
held that the provisions of the Companies and Allied Matters Act
cannot be employed to supplant the legal requirement imposed by the
Legal Practitioners Act in the sense that the Legal Practitioners
Act provides specific provision that governed that particular
subject matter.

Considering the instant case, the Court held that the Local
Government Laws cannot supplant the provisions of the Public
Officers Protection Law which specifically deals with limitation of
action against public servants such as the 2nd and 3rd
Respondents.

Where there is a specific provision and a general provision on
the same subject matter, the special provision shall supersede the
general provision.

The Court further held that the cause of action which was the
stoppage of payments of the Appellants’ salaries happened in June,
2006 while the suit seeking for a mandatory order to pay same was
instituted on January 15, 2007, a period of 7 months which is
outside the 3 months period provided for under Section 1(a) of the
Public Officers Protection Laws of Cross River State.

Resolving the issue, the Court held that from the facts of this
case, the Appellants’ injury for which they sought for remedy is
not of a continuing nature. Hence, the cause of action has abated
and their action is time barred.

On issue 2, the Court stated that the learned trial judge having
arrived at the conclusion that the appellants’ action was statute
barred, going ahead to consider other issue (s) will no doubt
amount to an academic exercise or an exercise in futility.

The Court stated that an action, which is statute-barred cannot
confer any jurisdiction on a Court.

This is because such action has lost its right of initiation as
it no longer comes within recognition, but empty cause of action,
which cannot confer any right to judicial relief.

See DAUDU  V UNIVERSITY OF AGRICULTURE, MAKURDI (2002)
17 NWLR (pt. 796) 363 and A.G. ADAMAWA STATE V A.G. FEDERATION
(2014) 14 NWLR (pt. 1428) 515 at 577.

HELD

Having resolved all the two issues against the Appellants, the
Court found the appeal lacking in merit and it was dismissed.

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