AMUUDA & ORS V BAMGBOYE & ORS

AMUUDA & ORS V BAMGBOYE & ORS


IN THE COURT OF APPEAL
IN THE ILORIN JUDICIAL DIVISION
HOLDEN AT ILORIN

ON FRIDAY, 29TH JUNE, 2018


Appeal No: CA/IL/44A/17
CITATION:

Before Their Lordships:

MOJEED ADEKUNLE OWOADE, JCA

CHIDI NWAOMA UWA, JCA

HAMMA AKAWU BARKA, JCA


BETWEEN

ALHAJI ALABI AMUDA (CHAIRMAN, KWARA STATE GOVERNMENT BOUNDARY COMMITTEE)
SURVEYOR AFODUN (MEMBER, KWARA STATE GOVERNMENT BOUNDARY COMMITTEE)
MR. SUNDAY OLADIJI (MEMBER, KWARA STATE GOVERNMENT BOUNDARY COMMITTEE)
ALHAJI UMAR (MEMBER, KWARA STATE GOVERNMENT BOUNDARY COMMITTEE)
MR. S.B. SULEIMAN (MEMBER, KWARA STATE GOVERNMENT BOUNDARY COMMITTEE)

(APPELLANTS)

AND

H.R.H. OBA (PROF.) EZRA B. BAMIGBOYE (ELEKU OF ODO-EKU-ISIN)
CHIEF PETER O. AJIBAIYE
CHIEF JOEL AFOLAYAN (AJIROBA OF ODO-EKU-ISIN)
CHIEF JAMIU BUREMOH (OLOWIN OF ODO-EKU-ISIN)
PRINCE JOHNSON B. BAMIGBOYE
MALLAM SULEIMAN OGUNBIYI (FOR THEMSELVES AND THE ENTIRE ODO-EKU-ISIN COMMUNITY)
H.R.H. OBA JOSHUA OLUTADE, ONIWO OF IWO (FOR HIMSELF AND ON BEHALF OF IWO-ISIN COMMUNITY)

(RESPONDENTS)


PRONOUNCEMENTS


A. LIMITATION LAW
1. Limitation of Action –

Application of limitation law to application for judicial review

“The appellant’s issue one was argued under two legs, first, whether the lower Court was right to have entertained the case of the 1st – 6th Respondents against the Appellants who were sued in their respective personal capacities considering the Provisions of Section 13 of the Local Boundaries Settlement Law and secondly, whether the lower Court was right to have held that the cause of action of the 1st – 6th Respondents was not statute barred under the Provisions of Section 2(a) of the Public Officers (Protection) Law of Kwara State. I would resolve the issue in reverse order in which it was argued by first looking into whether the 1st – 6th Respondents’ action against the appellants was statute barred. The outcome would determine the resolution of the first leg of the argument under issue one.

The issue of whether the action of the 1st – 6th respondents at the lower Court was statute barred or not has been decided by this Court in the sister appeal number CA/IL/44/17, to the effect that the action/application was statute barred and that the trial Court ought not to have entertained it. I would not deviate from the decision in the above appeal but, would only go into the present appeal for the purpose of emphasis. As held in the sister appeal above, the Limitation Law relied on by the Appellants are applicable, also relied on and held by the learned trial judge. There was no appeal against this finding by the trial Court. The only issue therefore is the computation of the time, to determine when the applicants ran out of time to file their action/application, depending on when the action was taken. While the trial Court held that the application was filed when the motion ex-parte for leave was filed, this Court held that the application for leave was to seek permission so as to say, to file the substantive action, which was held to have been filed out of time. Order 48 Rule 3(1) of the Kwara State High Court (Civil Procedure) Rules, 2015 provides as follows: 3(1):
“No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.”
See also Section 2(a) of the Public Officers (Protection) Law of Kwara State. It is clear that the application for leave must be sought and granted before the application for the substantive action/application is filed, both must be done and completed within the period of time stipulated under the limitation law, where statute has limited the time within which to do so, as in the present case. From the provisions of Order 48, the leave of Court is a pre-requisite to bringing the substantive application, without which the application cannot be properly filed. On the other hand, leave could be refused and even where granted, the applicant could decide not to proceed beyond the leave, as rightly argued by the Solicitor General. In computing the three (3) months statutory period (which is not disputed) the date of filing ought to be the date of filing the substantive application, which is 10th June, 2010 and not 10th May, 2010 the date the ex-parte application was filed. It was agreed by the parties that the report/decision in which the application was sought was given on 10th February, 2010, the trial Court also found so. From the said date till 10th June, 2010 when the substantive application was filed it was clearly more than the Ninety (90) days within which the applicants should have done so. In the case of ASABORO & ANOR VS. PAN OCEAN OIL CORPORATION (NIG) LTD & ANOR (2017) PELR – 41558 (SC) PP. 30-31, PARA. E his Lordship Peter Odili, JSC reiterated the effect of a statute barred action thus:
“It is to be reiterated that in an action instituted after the expiration of the prescribed period is said to be statue barred. That is to say that where the limitation of time is imposed in a statute unless that same law makes provision for extension of time, the Courts have their hands tied from extending the time as the action filed outside the stipulated period will lapse by effluxion of time. The follow up to the above is to determine whether an action is statute barred and in doing this the Court is expected to peruse the originating process, statement of claim together with the evidence on record where that has taken place to know when the wrong in question occurred and compare it with the date the originating process was filed in Court. I rely on the case of OGUNDIPE VS. NDIC (2 8) ALL FWLR (PT. 432) 1220 at 1239. The implication of the action being statute barred is that a plaintiff who ordinarily would have had a cause of action by judicial process because the period of the time laid down by the Limitation Law for instituting such an action has elapsed, automatically loses that right to approach the Court to ventilate his grievance. See EBOIGBE VS. NNPC (1994) 5 NWLR (PT. 347) 649.”
In the present case, the wrong in question occurred on 11th February, 2010 which is not disputed. The originating process is the substantive application which was filed on 7th, June 2010 which is later than the Ninety (90) days prescribed for such action by the Limitation Law. The 1st – 6th Respondents (applicants at the lower Court) lost their right to approach the Court to ventilate their grievances. See also NASIR VS. CIVIL SERVICE COMMISSION, KANO STATE & ORS (2010) LPELR – 1943 (SC), EBOIGBE VS. NNPC (1994) LPELR – 992 (SC) and OGUNDIPE VS. AWE & ORS (1988) LPELR – 2332 (SC). The learned trial judge was wrong to have held that the date of the filing of the ex-parte application for leave to apply for judicial review by way of certiorari is the date to be reckoned with for filing of the initiating process, pages 368 – 369 of the printed records of appeal. I am of the humble view that the leave must be sought and the substantive application filed within the time allowed by the law. I hold that the substantive application filed on the 10th day of June, 2010 was filed outside the period of three months allowed by law, therefore statute barred. The resultant effect is that the learned trial judge had no jurisdiction to have entertained the matter. For this reason, there would be no need to look into the first part of the appellants’ issue one as to whether the 1st – 6th Respondents’ action against the appellants sued in their personal capacities was right or wrong, considering the Provisions of Section 13 of the Local Boundaries Settlement Law. Resolution of same would yield no fruit.”Per UWA, JCA read in context

B. PRACTICE AND PROCEDURE
2. Academic or Hypothetical Issues –

Attitude of Courts to academic/hypothetical issues or questions

“With the resolution of the appellants’ issue one in their favour, to the effect that the action was statute barred, there would be no need to determine the rest of the issues formulated, doing so would also be academic. In the case of BAMGBOYE VS. UNILORIN & ANOR (1999) LPELR – 737 (SC) PP. 37 – 38, PARAS. E – C, his Lordship Onu, JSC made clear the attitude of the Courts to academic/hypothetical issues or questions thus: “… it is not part of the function of the Court to entertain and decide hypothetical and academic questions, i.e. questions not arising from the facts of the case. See also the cases of NATIONAL INSURANCE CORPORATION VS. POWER & INDUSTRIAL ENGINEERING CO. LTD (1986) 1 NWLR (PT. 14) 1, 22 and AKEREDOLU VS. AKINREMI (1986) 2 NWLR (PT. 25) 710, the matter in which this Court held at page 728 as follows:- “Courts of law are not established to deal with hypothetical and academic questions. They are established to deal with matters in difference between the parties.”Per UWA, J.C.A read in context


LEAD JUDGMENT DELIVERED BY UWA, JCA


The High Court of Kwara State, presided over by E.B. Mohammed, J, in its judgment delivered on 15th December, 2016 refused the appellant’s preliminary objection but, granted the relief for an order of certiorari to quash the proceedings and decision of the Kwara State Boundary Committee in favour of the 1st – 6th Respondents. The Appellants were dissatisfied with the decision, thus this appeal.

The background facts are that Iwo-Isin and Odo-Eku-Isin share common boundaries in Isin Local Government Area of Kwara State which has resulted in a series of disputes between the two communities. The Iwo-Isin Community petitioned to the Kwara State Boundary Committee, said to be a hybrid of the Local Boundary Settlement Law of Kwara State, a body statutorily empowered to determine and settle to finality boundary disputes in the State. The boundary dispute between the two communities became a subject of consideration by the State Boundary Committee.

The Boundary Committee under its enabling law, placed an incumbent Deputy Governor of the State as the Chairman, at the time of the petition, the incumbent Deputy Governor of the State came from Iwo-Isin. In line with the enabling law of the committee, a technical committee was set up amongst members of the statutory committee excluding the said Deputy Governor to determine the boundary dispute between the duo communities with a mandate to submit its report to the Governor for his decision.

Both parties were said to have presented their representatives and witnesses who presented oral and documentary evidence before the technical sub-committee that subsequently submitted their finding and/or report to the Governor for a decision as required under the law. The Governor’s decision came four years after the submission of the report. It was contended that the Respondents at the time did not raise any issue of bias or lack of fair hearing against the committee, its membership constitution, action of the technical sub-committee or against the Deputy Governor as the Chairman of the main committee. The report of the Governor was said to have been made known on the 10th of February, 2010 by the Appellants who constituted the new members of the committee some of the former members having retired from service of the State Government or deceased.

The 1st – 6th Respondents who were unhappy with the report and decision of the Governor on 10th May, 2010 approached the lower Court for leave to file an application for an order of certiorari to quash the proceedings and report of the Kwara State Boundary Committee established under the Local Boundary Settlement Law of Kwara State. The leave to file the application for an order of certiorari was granted on 1st June, 2010 and on 10th June, 2010, the 1st – 6th Respondents filed the substantive application for an order of certiorari. While relying on Section 13 of the Kwara State Local Boundaries Settlement Law, CAP L. 7, Laws of Kwara State and Section 2 (a) of the Public Officers (Protection) Laws of Kwara State, the Appellants challenged the jurisdiction of the lower Court to entertain the suit of the 1st – 6th Respondents on the grounds of statute of limitation and also joined issues with the 1st – 6th respondents on the substantive application.

The parties were heard on the preliminary objection and the substantive suit, the lower Court granted the order of certiorari on the grounds of fair hearing and breach of the rules of natural justice. The appellants’ dissatisfaction with the decision of the lower Court resulted in this appeal. The appellants identified four (4) issues for the determination of the appeal thus:

1. “Whether considering the provisions of the Local Boundaries Settlement Law and Public Officers (Protection) Law of Kwara State, the lower Court was right when it assumed jurisdiction to entertain the suit against the Appellants.

2. Whether from the circumstance of the case, the proceedings and the Report of the Kwara State Local Boundary Committee in respect of Iwo and Odo-Eku Communities delivered on 10th February, 2010 is bereft of fair hearing as concluded by the Lower Court.

3. Whether the ower Court relying on Exhibits A, B, and C attached to the 7th Responntde’s Counter Affidavit rightly granted the order of certiorari in the absence of the committee’s record of proceedings.

4. Whether by the combined effect of Section 11 of the Local Boundaries Settlement Law and Order 48 Rule 9 (4) of the Kwara State High Court (Civil Procedure) Rules, 2005, the Lower Court was right in its failure to remit the matter back to the Boundary Committee.”

The 1st – 6th Respondents on their part distilled the following four (4) issues for the determination of the appeal:

1. “Whether considering the provisions of the Local Boundaries Settlement Law and Public Officers (Protection) Law of Kwara State, the Lower Court was right in assuming jurisdiction to determine this suit against the Appellants.

2. Whether from the circumstances of this case, the proceedings and the Report of the Kwara State proceedings and the Report of the Kwara State Local Boundaries Committee in respect Iwo and Odo-Eku Communities delivered on 10th February, 2010 is bereft of fair hearing as concluded by the Lower Court.

3. Whether the trial Court was right to have relied on Exhibits A, B and C produced by the 7th Respondent and attached to his Counter-Affidavit to grant the order of certiorari sought for by the 1st – 6th Respondents.

4. Whether the trial Court was right in quashing the State Boundary Committee constituted by the Appellants minutes, Reports, proceedings and decision founded on them by an order of certiorari as incompetent without referring the dispute back to the State Boundary Committee.”

No brief of argument was filed on behalf of the 7th respondent but the learned counsel to the 7th Respondent, Mr. Alawode aligned himself with the appellants.

Before the appeal was argued, the learned Solicitor General of Kwara State, Funsho D. Lawal, applied that the name of the 5th Appellant be struck out as he was then deceased, the application was granted and the name of the 5th appellant was struck out and the th appellant became the 5th appellant now on record. In arguing the appeal, the learned Solicitor General adopted and relied on the appellants’ brief of argument filed on 13/10/17 but deemed filed on 13/3/18 in urging us to allow the appeal. The appellants’ first issue is whether considering the provisions of the Local Boundaries Settlement Law and The Public Officers (Protection) Law of Kwara State, the lower Court was right when it assumed jurisdiction to entertain the suit against the appellants? The issue was argued under two sub heads, firstly whether the lower Court was right to have entertained the case of the 1st – 6th Respondents against the Appellants who were sued in their respective personal capacities considering the provisions of Section 13 of the Local Boundaries Settlement Law and secondly, whether the Lower Court was right to have held the cause of action of the 1st – 6th Respondents was not statute barred under the provisions of Section 2 (a) of the Public Officers (Protection) Law of Kwara State. It was submitted that the lower Court was wrong and that the case of the 1st – 6th Respondents ought to have been dismissed. It was argued that the provisions of Section 13 of the Boundaries Settlement Law (hereafter referred to as the Boundary Law) was submitted for consideration by the lower Court under the preliminary objection raised by the Appellants but, in its judgment leading to this appeal, the trial Court failed to consider the objection and instead dwelt on the principal which the appellants likened themselves to after their argument on Section 13 of the Boundary Law. It was alleged that the trial Court failed to consider all the issues placed before it before arriving at its decision, which rendered the decision invalid, reliance was placed on the following cases, JOHN ONENIBE ONYEDIBE & 2 ORS VS. OBIORA MADUEKE & ANOR (2012) ALL FWLR (PT. 30) 1342 at 1370 and EMIRATE AIRLINE VS. FRN & 4 ORS (2015) ALL FWLR (PT. 773) 1865 at 1887. It was argued that the members of the commission ought not to have been sued personally for acts or omissions done in pursuance of their duties under the Law. Further, that the trial Court’s disregard for the provisions of Section 13 of the Boundary Law led to a perverse decision. See AKHAJI OSENI OLANIYAN & 4 ORS VS. CHIEF (MRS) E.T. FATOKI (2014) ALL FWLR (PT.717) 703 at 715 and SECTION 74 of the Evidence Act, 2011 to the effect that the applicable law governs the Court’s decision and not the judge’s personal view. See ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANNI ABACHA VS. SAMUEL DAVID EKE-SPIFF & 3 ORS (2003) ALL FWLR (PT. 144) 531 at 595.

On the lower Court’s holding that the appellants are not agents of a disclosed principal was said to be wrong. It was submitted that the 1st – 6th Respondents ought to have sought the order against the commission or committee, as any decision against the appellants as individuals in their personal capacities would not be effective and therefore wrong for the lower Court to have assumed jurisdiction over the appellants who are agents of the commission by implication of the law and have no personal interest in the reliefs claimed before the lower Court . See ADEDEJI VS . POLICE SERVICE COMMISSION (1967) 1 ALL NLR 67.

It was also argued that the action of the 1st – 6th Respondents against the 7th respondent cannot be sustained as the 7th Respondent was not part of the decision sought to be quashed before the lower Court. It was submitted that the 7th Respondent is an auxiliary party over whom the Court would also have no jurisdiction in the absence of the principal party, the commission.

See TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517.

On the trial Court’s reliance on the ex parte application for leave to file the application for an order of certiorari, it was submitted that the trial Court erroneously placed reliance on Iyoho’s case (supra) as it is not on all fours with the present case.

The case of Iyoho (supra) was distinguished from the present one and it was submitted that the lower Court ought not to have relied on it. Further, that the lower Court ought to have considered the implication of seeking leave to take a substantive action where the action is governed by limitation law. See UGOH VS. BENUE STATE LOCAL GOVERNMENT SERVICE COMMISSION (1995) 3 NWLR (PT. 383) 288 at 332, P.P.A. VS. INEC (2012) 13 NWLR (PT. 1317) 215 at 239 – 240 and MOBIL PRODUCING NIGERIA UNLIMITED VS. CJA UWEMEDIMO & ANOR (2006) ALL FWLR (PT. 313) 166 at 132. It was stressed that the application for leave, the grant of leave as well as the substantive matter must be done and completed within the stipulated period under the limitation law, in the present case, three months. Reference was made to Section 2 (a) of the Public Officers (Protection) Law of Kwara State and Order 48 Rule 3 (1) of the Kwara State High Court (Civil Procedure) Rules 2005. It was submitted that the date the trial Court ought to have reckoned with was 7th June, 2010 when the substantive application was filed and not 10th May, 2010 when the ex parte application was filed.

It was concluded under this issue that from the date of the accrual of the cause of action on 10th February, 2010, the substantive application having been filed on 10th May, 2010, a period of over three months had lapsed and the action, was statute barred. It was argued that the lower Court acted without jurisdiction to entertain the stale claim and that the decision is a nullity. See OKOLO VS. U.B.N. (2004) 1 SCNJ, 113.

In response, the learned Senior Counsel J.S. Bamigboye (SAN), appearing with T.K. Abdullahi, U.K. Belgore, B.A. Oni and A.T. Smith for the 1st – 6th Respondents relied on his brief of argument filed on 1 /4/18 in urging us to dismiss the appeal. In arguing his first issue, it was submitted that the appellants’ submission on this issue is misconceived and irrelevant as they were not set up under the law and therefore it does not oust the jurisdiction of the High Court in judicially reviewing the conduct and proceedings of a commission but only protects members from civil and criminal liability which is not the 1st – 6th Respondents’ cause of action. It was argued that the Appellants did not represent their committee as a “commission” set up under the Local Boundaries Settlement Law and that Section 3 on the setting up of a commission under the law is inapplicable to the Appellants. It was submitted that the Appellants did not comply with the mandatory provision of oath taking by members under Section 4 of the Law and that the secretary of the Appellants’ Committee is not a Legal Practitioner as mandatorily provided for under Section 6 of the Law, neither is a Legal Practitioner a member, the procedure laid down under Section 7 of the law was said not to have been complied with by the Appellants. It was submitted that the appellants’ case at the trial Court was not that they were set up under Local Boundaries Settlement Law of Kwara State. It was argued that the appellants should be consistent with their pleadings, reliance was placed on the cases ofIBIBIAMA F.G. ODOM VS. THE .D.P. (2015) 2 SC NJ 58 at 79, CHIEF ELIJAH OMONIYI AJAYI VS. TOTAL NIGERIA PLC (2014) ALL FWLR (PT. 719) 1069, 1089 and AJIDE VS. KELANI (1985) 2 NSCC 1298, 1316.

Further, that the Appellants did not make a case as to the establishment, composition or proceeding under the Local Boundaries Settlement Law and cannot therefore take advantage under any of its provisions, therefore that the contention under Section 13 of the law is misconceived. It was argued that the trial Court adequately considered the preliminary objection before dismissing it, contrary to the argument of the appellants that it did not.

It was contended that by the composition and procedure, the appellants were neither set up under the National Boundaries Commission (Establishment) Act nor under the Local Boundaries Settlement Law of Kwara State. It was argued that the Appellants cannot claim any right under any of the provisions of either the Act or Section 13 of the Law. The State Boundary Committee was said to have been sued in the capacity of their individual membership of the committee. See ALHAJI A.J. ONIBUDO VS. ALHAJI IMAM T. ABDU AHI & 12 ORS (on behalf of the Executive Committee of the Onibudo Mosque) now described as OKO – OWO MOSQUE (1991) 2 NWLR (PT.172) 230, 241. It was also argued that the Public O f f i c e r ’ s ( P r o t e c t i o n ) L a w a p p l i e s t o administrative/executive acts, and not judicial acts, which is the conduct of the Appellants being challenged by this application, for an order of certiorari, reliance was placed on the case of F.R.N. VS. IFEGWU (2003) 45 WRN 27, 69.

The learned Senior Counsel identified the kernel of this issue as the determination of when the cause of action accrued and when the action was instituted. It was submitted that the action ought to be taken within three months of accrual of the cause of action and that the processes to be examined are those filed by the Applicants for the relief of certiorari and not the defence, reliance was placed on the cases of DR. JAM AGBONIKA VS. UNIVERSITY OF ABUJA (2014) ALL FWLR (PT. 715) 335, 353, JUDE OGBONNA VS. AGHAEGBUNAM EMEWUZIE (2014) A FWLR (PT. 755) 336, 354 – 355 and ACTION CONGRESS OF NIGERIA VS. INEC (2014) ALL FW R (PT. 716) 460, 474 – 475. It was argued that the parties agreed and the trial Court found that the Report and Decision leading to the present case were delivered on 10th February, 2010 and that there is no appeal against the finding, page 368 of the printed records.

It was contended that by the provisions of Order 10 Rule 1(a) of the Kwara State High Court (Civil Procedure) Rules, 2005 in computing the three months, the 10th of February, 2010, the date the report and decision were delivered would be excluded. It was argued that the action leading to this appeal was commenced 89 days in aggregate, therefore within the three (3) months (90 days) prescribed by the respective laws cited by the appellants, the suit was said to have been competently commenced as prescribed by all the relevant limitation laws on judicial review by way of certiorari and is not statute barred. Further, that the appellants were misconceived when it was argued that the ex-parte application for leave to file the substantive application for certiorari does not commence the action but, the substantive application. The provision of Order 48, Rule 3 (1) and (2) of the Kwara State High Court (Civil Procedure) Rules, 2005,was reviewed, also Rule 4 (1). We were urged to interpret the law as it is, and give it, its ordinary meaning, reliance was placed on the cases of CORPORATE IDEAL INSURANCE LTD VS. AJAOKUTA STEEL CO. LTD (2014) ALL FWLR (PT. 731) 1441, 1458, EBELE OKOYE VS. C.O.P. (2015) ALL FWLR (PT. 799) 1101, 1140 and MADAM AKON IYOHO VS. E.P.E. EFFIONG ESQ (2007) ALL FWLR (PT. 374) 204, 224 – 225. We were urged to read Order 48 Rule 3 (1) – (9) together to the effect that the ex-parte application for leave commences an application for certiorari, reference was also made to Order 49 Rule 9 (a) and (b). The application for leave was equated with a writ to the effect that the application for leave commences a relief by way of certiorari; reliance was placed on the case of CHIEF ONWUKA KALU VS. CHIEF VICTOR ODILI (1992) 6 SCNJ 76, 96. It was re-argued that the Appellants’ committee was not in composition and mode of operation constituted under Section 29 of the National Boundary Commission (Establishment) Act and cannot claim any benefit or defence under that law.

In the alternative, it was argued that the application for leave to seek judicial review is of general application to all such suits and the substantive application which must be filed together with the application for leave to seek judicial review and is a continuation of the ex- parte application bearing the same suit number. Further, that the leave in that respect stays all actions in the proceedings sought to be quashed pending the determination of the substantive application. It was concluded on this issue that the Ex-parte application for leave to apply for judicial review commences an action for judicial review and that the action was competently commenced within the time frame allowed. We were urged to resolve this issue in favour of the 1st – 6th Respondents.

The appellant’s issue one was argued under two legs, first, whether the lower Court was right to have entertained the case of the 1st – 6th Respondents against the Appellants who were sued in their respective personal capacities considering the Provisions of Section 13 of the Local Boundaries Settlement Law and secondly, whether the lower Court was right to have held that the cause of action of the 1st – 6th Respondents was not statute barred under the Provisions of Section 2(a) of the Public Officers (Protection) Law of Kwara State. I would resolve the issue in reverse order in which it was argued by first looking into whether the 1st – 6th Respondents’ action against the appellants was statute barred. The outcome would determine the resolution of the first leg of the argument under issue one.

The issue of whether the action of the 1st – 6th respondents at the lower Court was statute barred or not has been decided by this Court in the sister appeal number CA/IL/44/17, to the effect that the action/application was statute barred and that the trial Court ought not to have entertained it. I would not deviate from the decision in the above appeal but, would only go into the present appeal for the purpose of emphasis. As held in the sister appeal above, the Limitation Law relied on by the Appellants are applicable, also relied on and held by the learned trial judge. There was no appeal against this finding by the trial Court. The only issue therefore is the computation of the time, to determine when the applicants ran out of time to file their action/application, depending on when the action was taken. While the trial Court held that the application was filed when the motion ex-parte for leave was filed, this Court held that the application for leave was to seek permission so as to say, to file the substantive action, which was held to have been filed out of time.

Order 48 Rule 3(1) of the Kwara State High Court (Civil Procedure) Rules, 2005 provides as follows:

3(1):

“No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.”

See also Section 2(a) of the Public Officers (Protection) Law of Kwara State. It is clear that the application for leave must be sought and granted before the application for the substantive action/application is filed, both must be done and completed within the period of time stipulated under the limitation law, where statute has limited the time within which to do so, as in the present case. From the provisions of Order 48, the leave of Court is a pre-requisite to bringing the substantive application, without which the application cannot be properly filed. On the other hand, leave could be refused and even where granted, the applicant could decide not to proceed beyond the leave, as rightly argued by the Solicitor General.

In computing the three (3) months statutory period (which is not disputed) the date of filing ought to be the date of filing the substantive application, which is 10th June, 2010 and not 10th May, 2010 the date the ex-parte application was filed. It was agreed by the parties that the report/decision in which the application was sought was given on 10th February, 2010, the trial Court also found so. From the said date till 10th June, 2010 when the substantive application was filed it was clearly more than the Ninety (90) days within which the applicants should have done so. In the case of ASABORO & ANOR VS. PAN OCEAN OIL CORPORATION (NIG) LTD & ANOR (2017) LPELR – 41558 (SC) PP. 30-31, PARA. E his Lordship Peter Odili, JSC reiterated the effect of a statute barred action thus:

“It is to be reiterated that in an action instituted after the expiration of the prescribed period is said to be statue barred. That is to say that where the limitation of time is imposed in a statute unless that same law makes provision for extension of time, the Courts have their hands tied from extending the time as the action filed outside the stipulated period will lapse by effluxion of time. The follow up to the above is to determine whether an action is statute barred and in doing this the Court is expected to peruse the originating process, statement of claim together with the evidence on record where that has taken place to know when the wrong in question occurred and compare it with the date the originating process was filed in Court. I rely on the case of OGUNDIPE VS. NDIC (2008) ALL FWLR (PT. 432) 1220 at 1239. The implication of the action being statute barred is that a plaintiff who ordinarily would have had a cause of action by judicial process because the period of the time laid down by the Limitation Law for instituting such an action has elapsed, automatically loses that right to approach the Court to ventilate his grievance. See EBOIGBE VS. NNPC (1994) 5 NWLR (PT. 347) 649.”

In the present case, the wrong in question occurred on 11th February, 2010 which is not disputed. The originating process is the substantive application which was filed on 7th, June 2010 which is later than the Ninety (90) days prescribed for such action by the Limitation Law. The 1st – 6th Respondents (applicants at the lower Court) lost their right to approach the Court to ventilate their grievances. See also NASIR VS. CIVIL SERVICE COMMISSION, KANO STATE & ORS (2010) LPELR – 1943 (SC), EBOIGBE VS. NNPC (1994) LPELR – 992 (SC) and OGUNDIPE VS. AWE & ORS (1988) LPELR – 2332 (SC). The learned trial judge was wrong to have held that the date of the filing of the ex-parte application for leave to apply for judicial review by way of certiorari is the date to be reckoned with for filing of the initiating process, pages 368 – 369 of the printed records of appeal. I am of the humble view that the leave must be sought and the substantive application filed within the time allowed by the law. I hold that the substantive application filed on the 10th day of June, 2010 was filed outside the period of three months allowed by law, therefore statute barred. The resultant effect is that the learned trial judge had no jurisdiction to have entertained the matter. For this reason, there would be no need to look into the first part of the appellants’ issue one as to whether the 1st – 6th Respondents’ action against the appellants sued in their personal capacities was right or wrong, considering the Provisions of Section 13 of the Local Boundaries Settlement Law. Resolution of same would yield no fruit. The appellants’ issue one is resolved in their favour.

With the resolution of the appellants’ issue one in their favour, to the effect that the action was statute barred, there would be no need to determine the rest of the issues formulated, doing so would also be academic. In the case of BAMGBOYE VS. UNILORIN & ANOR (1999) LPELR – 737 (SC) PP. 37 – 38, PARAS. E – C, his Lordship Onu, JSC made clear the attitude of the Courts to academic/hypothetical issues or questions thus: “… it is not part of the function of the Court to entertain and decide hypothetical and academic questions, i.e. questions not arising from the facts of the case. See also the cases of NATIONAL INSURANCE CORPORATION VS. POWER & INDUSTRIAL ENGINEERING CO. LTD (1986) 1 NWLR (PT. 14) 1, 22 and AKEREDOLU VS. AKINREMI (1986) 2 NW R (PT. 25) 710, the matter in which this Court held at page 728 as follows:- “Courts of law are not established to deal with hypothetical and academic questions. They are established to deal with matters in difference between the parties.”

In sum, the appeal would be determined on the basis of the resolution of issue one only.

In the final analysis, issue one having been determined in favour of the appellants, the appeal is meritorious and is hereby allowed. The judgment of the learned trial judge is a nullity having been decided without jurisdiction, same is hereby set aside.

Parties to bear their respective costs.

OWOADE, JCA

I had the opportunity of reading the draft of the lead Judgment just delivered by my learned brother, CHIDI NWAOMA UWA, JCA, I agree with the reasoning and conclusion therein. The Appeal is meritorious and is hereby allowed by me. I also declare that the Judgment of the trial Judge is a nullity having been decided without jurisdiction. I abide with the consequential Order

BARKA, JCA

The decision of my learned brother CHIDI NWAOMA UWA JCA, was made available to me before now in draft. I agree with the reasoning and conclusion reached to the inevitable conclusion that the appeal has merit and is hereby allowed by me.

Appearances:

Funsho D. Lawal, Solicitor

General of Kwara State For Appellant(s)

J.S. Bamigboye, (SAN) with him, T.K. Abdullahi, U.K. Belgore, B.A. Oni and A.T. Smith – for 1st – 6th Respondents.

Tosin Alawode, Esq.- for 7th Respondent with him, Abdulrasaq A. Daibu, Esq., Ayokunle Olufade, Esq. and Cletus Uduma, Esq. For Respondent(s)