OLUTADE v. BAMIGBOYE & ORS

CITATION: (2018) LPELR-45695(CA)

In the Court of AppealIn the Ilorin Judicial Division

Holden at Ilorin

ON FRIDAY, 29TH JUNE, 2018Suit No: CA/IL/44/17

Before Their Lordships:

MOJEED ADEKUNLE OWOADE Justice, Court of AppealCHIDI NWAOMA UWA Justice, Court of AppealHAMMA AKAWU BARKA Justice, Court of Appeal

BetweenH.R.H. OBA JOSHUA OLUTADE, ONIWO OF IWO(FOR HIMSELF AND THE ENTIRE IWO-ISINCOMMUNITY)

- Appellant(s)

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1. H.R.H. OBA (PROF.) EZRA B. BAMIGBOYE(ELEKU OF ODO-EKU-ISIN)2. CHIEF PETER O. AJIBAIYE(ASIWAJU OF ODO-EKU-ISIN)3. CHIEF JOEL AFOLAYAN(AJIROBA OF ODO-EKU-ISIN)4. CHIEF JAMIU BUREMOH (OLOWIN OF ODO-EKU-ISIN)5. PRINCE JOHNSON B. BAMIGBOYE6. MALLAM SULEIMAN OGUNBIYI (FORTHEMSELVES AND THE ENTIRE ODO-EKU-ISINCOMMUNITY)7. ALHAJI ALABI AMUDA(CHAIRMAN, KWARA STATE GOVERNMENTBOUNDARY COMMITTEE)8. SURVEYOR AFODUN(MEMBER KWARA STATEGOVERNMENT BOUNDARYCOMMITTEE)9. MR. SUNDAY OLADIJI(MEMBER KWARA STATEGOVERNMENT BOUNDARY COMMITTEE)10. ALHAJI UMAR(MEMBER KWARA STATE GOVERNMENTBOUNDARY COMMITTEE)11. MR. S.B. SULEIMAN(SECRETARY, KWARA STATEGOVERNMENT BOUNDARYCOMMITTEE)

- Respondent(s)

RATIO DECIDENDI

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1. LIMITATION LAW - LIMITATION OF ACTION: Application of limitation law to application for judicial review"The appellants' issue one is similar to that of the respondents which is: whether the cause of action of the claimants/1st - 6th Respondents is not statute barred? Theappellants contend that the action of the claimants (now 1st - 6th Respondents) was statute barred from the combined effect of Section 29 of the National BoundaryCommission (Establishment) Act, Section 2(a) of the Public Officers' Protection Act and Order 48 Rule 4(2) and (3) of the Kwara State High Court (Civil Procedure) Rules,2005 which all provide a period of three (3) months for the institution of the type of action that led to this appeal. From the records of Court, the learned trial judgeacknowledged the applicability of these laws which narrows down the appellants' issue one. The only issue now is when the permitted time commenced? The learnedtrial judge found that the time the Ex-parte application for leave to apply for judicial review is the time to be reckoned with in the determination of the question whetheror not the matter is statute barred as against the time the substantive application was filed, at paragraph 6, page 368 and paragraph 5 of page 369 of the records ofappeal. The decision being challenged was read on 10th of February, 2010, there is no dispute about this date. Also, that the 1st - 6th Respondents' ex-parteapplication dated 7th May, 2010 which sought the leave of the Court to apply for judicial review by way of centiorari was heard and granted on the 1st day of June,2010 following which the substantive application was filed.It is therefore evident and not disputed that as at 1st June, 2010 when the ex-parte application was granted and 10th June when the substantive application was filed,three months period had lapsed. The trial Court relied on the ex-parte application in computing when action was taken. But, looking at the ex-parte application on theface of it, simply sought "leave to seek the following Reliefs:" the reliefs were thereafter listed which included declaratory reliefs as well as to quash the proceedingsand decision of the 7th - 11th Respondents constituted as the Kwara State Boundary Committee of 10th February, 2010 in the dispute between the two communities,pages 1 - 16 of the printed records of appeal. In other words, what was sought was leave to file the substantive application. If granted, the applicants would proceed tocommence their action by filing the Motion on Notice or summons whatever the case may be, as provided under Order 48 of the Rules of the Court. Where it is refused,it ends there and the applicant would be unable to commence any action. To my mind the action can only commence after the grant of the leave. Order 48 Rule 3 ofthe Rules provides that:3(1) "No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule."It cannot therefore be rightly argued that the commencement of the substantive application for judicial review would be from the date the application for leave wassought as argued by the learned Senior Counsel. The lower Court was wrong to have computed the date the action was filed from the date the leave was sought to holdthat the action was filed within the time allowed, ninety (90) days. On the other hand, the grant of the leave is not automatic on application, the Court would at thatstage examine whether a prima facie case has been made out for an application for an order of certiorari. In the application for leave, the applicant would have todisclose some injury done to him for which he seeks a redress, which would be highlighted in the affidavit in support of the application for leave. At that stage, the trialCourt would limit its decision to the ex-parte application only and would not touch or pronounce on the substantive application not yet before him. See, UGOH VS.BENUE STATE L.G.S.C. (supra) and TABAI VS. THE V.C., R.S.U.S. & TECH (supra). In simple language or definition, "leave of Court" means judicial permission to dosomething. It cannot be taken to be the doing of what "leave" is sought to be done. Where the leave is granted, then the next stage is to make the substantiveapplication, which is the date the action would be reckoned to have commenced. The purpose for the application for leave to precede the application for a judicialreview (as in the present case) was explained by the Supreme Court by his lordship, Craig, JSC in IGBOHO, IREPO LOCAL GOVERNMENT COUNCIL and COMMUNITY VS.THE BOUNDARY SETTLEMENT COMMISSIONER & ANOR (1988) LPELR - 1449 (SC) P. 28, PARAS. D - G (also reported in (1988) 1 NWLR (PT. 69) P. 189 and (1988) ANLR P.111) held that:"In this respect, it must be borne in mind that an application for judicial review is effected by two distinct steps: 1. The applicant files an application for leave to applyfor the judicial review in this case, an order of certiorari. This application is made ex-parte. 2. If the applicant shows a prima facie case, and leave is granted, then hewould file an application for an order of certiorari to issue. This is by Motion on Notice to the Respondents in the case. See, REG. VS. I.R.C. EX - PARTE FEDERATION OFSELF-EMPLOYED and SMALL BUSINESS LIMITED (1982) AC 617 at 642."(underlined mine for emphasis)See also OFFOR and ORS VS. HIS WORSHIP M.D. KANU ESQ (2016) LPELR - 40462 (CA) PP. 24 - 26 D - A. It is clear then, that the date of filing the substantive processwould determine the commencement of the action for certiorari. I agree with the learned counsel to the appellants that the trial Court was wrong to have held that theex-parte application is the initiating process in the matter. At page 368 of the printed records of appeal, the learned trial judge rightly determined when thecomputation of the ninety (90) days should commence, which is the day following the decision/report of the committee of 10th February, 2010. Commencement datewas rightly held to be 11th February, 2010 and to end on 10th May, 2010 which is the last date the Respondents as applicants had to file their application. The trialjudge rightly held thus:"In the light of the foregoing authorities, in calculating the three (3) months period prescribed for filing an action against the proceedings, report, judgment or decisionof the Kwara State Government Boundaries Committee by law, the date 10th February, 2010 on which the said committee delivered its report, judgment/decision mustbe excluded.Consequently, the calculation must commence on the 11th February, 2010 and three (3) months from that date would ordinarily end at midnight of the 10th May, 2010.See, AZEEZ AKEREDOLU & ORS VS. LASISI AKINREMI (1985) NWLR (PT. 10) 787 and ACN VS. INEC (2014) ALL FWLR (PT. 716) 460. In my view, in law and fact, theapplicants herein had up to the midnight of the 10th May, 2010 to file their action against the report, judgment/decision of the Kwara State Government BoundariesCommittee."But, the learned trial judge wrongly held that the commencement of the action/application was from the date the ex-parte application for leave to apply for judicialreview by way of certiorari was filed, on 10th May, 2010 to conclude that the applicants' suit was filed within the period prescribed for so doing. The trial Courterroneously held thus:"Hence having filed their ex-parte application for leave to apply for judicial review by way of certiorari which in my opinion is the originating or initiating process in thiscase before midnight on 10th May, 2010, applicants' suit was filed within the period of time prescribed for so doing."I hold that the above computation is wrong. The learned trial judge concluded at page 369 of the records thus: "Be that as it may, it is not open to any argument thatthe applicants' suit was initiated, instituted or filed within the period prescribed by the relevant law(s). It is therefore clear to me that this suit is not caught up by any ofthe limitation laws relied on by the respondents in this case. It is competent and valid and I so hold." The above conclusion by the learned trial judge is also erroneous.The learned trial judge was wrong to have relied upon and equated this case with the situation in IYOHO VS. OFFIONG (supra) which dealt with a situation where anapplication for judicial review was filed within the period allowed for appeal. The Court frowned at such application because it implied that if allowed and an appeal isfiled, it would be in existence at the same time as the application for judicial review. The refusal is to avoid duplicity of actions, that is, an appeal being filed at thesame time, the possibility of judicial review being filed within the period to appeal. The above case is not applicable. On the other hand, I am of the humble but, firmview that the application ex-parte and the application on Notice for judicial review should have been filed within the period allowed, that is ninety (90) days from thedate of the decision/report of the committee. In the present case, the substantive application was filed by the 1st - 6th Respondents on 10th June, 2010 following thegrant of the application ex-parte on 1st June, 2010. The commencement date of action was on 10th, June, 2010 which is outside the ninety (90) days prescribed. Theresultant effect is that the action is statute barred. The action having become statute barred the lower Court had no jurisdiction to have entertained the matter. The 1st- 6th Respondents (as applicants) failed to invoke their right of action in time and ran the risk of the extinction of such a right of enforcement and of entitlement to ajudicial relief. See, ASABORO AND ANOR VS. PAN OCEAN OIL CORPORATION (NIG) LTD and ANOR (2017) LPELR - 41558 (SC) per Nweze, JSC, at PP. 40 - 42, PARAS. B - E,A.C.B. PLC VS. N.T.S. (NIG) LTD (2007) 1 NWLR (PT. 1016) 596, 637, IBRAHIM VS. JSC KADUNA (1998) 12 KLR (PT. 73) 2489. In the case of OSUN STATE GOVERNMENTVS. DALAMI NIGERIA LTD (2007) LPELR - 2817 (SC) P. 11, PARAS. C - E, his lordship Katsina Alu, JSC (as he then was) simply defined an action that is statute barredthus:"The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the timeprescribed by such statute. Any action that is commenced after the prescribed period is said to be statute barred. See, IBRAHIM VS. J.S.C. (1998) 14 NWLR (PT. 584) 1."Similarly, in INEC v. OGBADIBO LOCAL GOVT. & ORS (2015) LPELR - 24839 (SC) P. 35, PARAS. D - F, his lordship Onnoghen, JSC (as he then was) reiterated andemphasized in the same way that:"It is settled law that a limitation law, such as the provisions of Section 2 (a) of the Public Officers Protection Act, takes away the legal right of a litigant to enforce anaction leaving him with an empty shell of a cause of action where the action is not instituted within the time frame enacted in the statute of limitation. Where the actionis instituted outside the time so allotted by the statute, we say that the action so instituted is statute barred and cannot be maintained since it robs the Court of thejurisdiction to entertain and determine same."The limitation of action statutes usually make provisions to limit the period of time within which an action in certain cases can be enforced or protected through thejudicial process of the Courts. Where a statute prescribes a period within which an action must be commenced or initiated, the proceedings cannot be properly andvalidly commenced or initiated after the expiration or outside the prescribed period for the enforcement or protection of such right. A statute of limitation thereforeremoves the right of action, enforcement and judicial relief. In the case of DUZU and ANOR v YUNUSA & ORS (2010) LPELR - 8989 (CA); (2010) 10 NWLR (PT. 1201) P.80 this Court gave the rationale behind the limitation of actions generally to include the following:- (1) long dormant claims have more of cruelty than justice in them;(2) a defendant might have lost the evidence to disprove a stale claim; (3) persons with good causes of action should pursue them with reasonable diligence. Reliancewas placed on LLOYD VS. BUTLER (1950) 1 KB 76 and JONES VS. BELLGROVE PROPERTIES LTD (1949) 2 KB, 700, AREMO II VS. ADEKANYE (2004) ALL FWLR (PT. 224)2113 at 2131, NPA VS. AJOBI (2006) 7 SC (PT. 1) 23; (2006) 13 NWLR (PT. 998) 477 and AMUSAN VS. OBIDEYI (2005) 6 SC, 147 amongst others.From all that I have said, the trial Court was wrong to have held that the 1st - 6th Respondents' action at the lower Court was not statute barred; I am of the contraryview and hold that it was. Therefore, the trial Court had no jurisdiction to have entertained the matter."Per UWA, J.C.A. (Pp. 15-26, Paras. B-C) - read in context

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CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading

Judgment): The appeal is against the judgment of the

Kwara State High Court delivered on the 15th December,

2016 by E.B. Mohammed, J, in which the learned trial judge

dismissed the preliminary objections of both sets of

Defendants and found amongst other things that the

decision of the Kwara State Boundary Committee was

bereft of and conducted in breach of fair hearing.

The lower Court was invited by the claimants now the 1st –

6th Respondents to exercise its powers of judicial review

and issue an order of certiorari against the proceedings

and decision of the Kwara State Boundary Committee vide

an ex parte application for leave filed on 10th May, 2010.

The application was heard and granted on the 1st day of

June, 2010. The claimants (1st – 6th Respondents) filed the

substantive application on 10th June, 2010, premised on

eight (8) grounds and supported by two sets of affidavits

and some documents. The 7th Defendant (now Appellant)

and the 1st – 6th Defendants (now 7th – 12th Respondents)

filed separate responses and each raised a

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preliminary objection on grounds of Statute of Limitation.

The 7th – 12th Respondents also challenged the

composition of the suit being instituted against members of

the Commission/Committee in their individual capacities.

The background facts on the part of the appellant, are that

Iwo-Isin (represented by its Traditional Ruler the Appellant)

and Odo-Eku-Isin (represented by its Traditional Ruler and

other indigenes, the 1st – 6th Respondents) are

communities sharing common boundaries in Isin Local

Government Area of Kwara State. The two communities

have had boundary disputes which resulted into a long

history of hostilities. Sometime in 2005, the Appellant’s

Community filed a petition to the Kwara State Boundary

Committee, a committee created under the National

Boundary Commission (Establishment) Act and the Local

Boundary Settlement Law of Kwara State for the

determination of the boundary disputes. By virtue of the

enabling Laws such committees are statutorily under the

Chairmanship of an existing Deputy Governor of the State.

At the time of the submission of the petition, the Deputy

Governor of Kwara State, was Chief Joel Ogundeji, an

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indigene of the Appellant’s Iwo Community. A technical

sub-committee was set up amongst members of the

statutory committee, excluding the Deputy Governor, to

determine the Boundary Dispute and submit its Decision to

the Governor for approval or otherwise.

The Technical sub-committee took oral and documentary

evidence from the parties and their respective witnesses.

On completion of their task, the committee submitted their

findings and decision to the Governor of Kwara State for

his directives. The directives came up about four (4) years

later, by which time some of the members of the sub-

committee had retired, which prompted the setting up of

new members of the committee to read and implement the

approved decision of the original Technical sub-committee

on 10th February, 2010 in the presence of both parties.

The claimants (now 1st – 6th respondents) who were

dissatisfied with the findings and decision, took out an

action as representatives of Odo-Eku-Isin Community at the

High Court against the members of the Kwara State

Boundary Committee who read out the decision and the

Appellant on behalf of his community, praying the Court to

issue an order of certiorari against the

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decision of the Technical Sub-committee. The Court

granted the prayers sought, thus this appeal.

From the appellant’s grounds of appeal, five (5) issues were

distilled for the determination of the appeal as follows:

ISSUE ONE:

“Whether the cause of action of the 1st – 6th

Respondents (Claimants at the lower Court) is not

statute barred.

Grounds 1 and 2 of the appellant’s Notice of Appeal.

ISSUE TWO:

Whether there are proper parties before the lower

Court to have conferred jurisdiction on it to

determine the issues raised in the matter. Grounds 4,

5 and 10 of the Appellant’s Notice of Appeal.

ISSUE THREE:

Whether the findings/decision of the Lower Court that

the justification for the 7th – 12 respondents to out

and (sic) read the decision written by the Technical

Committee of the Kwara State Boundary Committees

is untenable is not erroneous.

Ground 3 of the Appellant’s Notice of Appeal.

ISSUE FOUR:

Whether the Learned Judge of the lower Court was

right to have relied on Exhibits A, B and C attached

to

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the Appellants’ Counter Affidavit as against the

Record of Proceedings of the technical sub-committee

to set the entire proceedings not reported in the

Exhibits and the findings and Decision which was not

placed before the Court.

Grounds 6 and 7 of the Appellant’s Notice of Appeal.

ISSUE FIVE:

Whether the learned judge of the lower Court was not

in error in the procedure taken and orders granted in

this matter without consideration of the peculiarity of

the issues involved and the provisions of Order 48

Rule 9(4) of the Kwara State High Court Civil

Procedure Rules 2005.”

Grounds 8 and 9 of the Appellant’s Notice of Appeal.

The 1st – 6th Respondents adopted the issues as formulated

by the Appellant but, with amendment of issues three (3)

and five (5) as follows:

1. “Whether the cause of action of the 1st – 6th

Respondents is statute barred.

2. Whether there are proper parties before the lower

Court to have conferred jurisdiction on it to

determine the issues raised in the matter.

3. Whether the findings of the lower Court that it is

untenable and without justification in law for

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the 7th – 12th Respondents to have decided on

evidence they did not hear and proceedings they did

not conduct is assailable.

4. Whether the trial Court was right to have relied on

Exhibits A, B and C produced by the Appellant and

attached to his Counter-Affidavit to grant the Order

of Certiorari sought for by the 1st – 6th Respondents.

5. Whether the trial Court was right in quashing the

State Boundary Committee Constituted by 7th – 12th

Respondents’ Report/proceedings and decision by an

order of Certiorari as incompetent without more.”

The 7th – 11th Respondents did not file any brief of

argument but, aligned themselves with the Appellant.

Before the appeal was argued (on 19/4/18), the Court was

informed that the original 11th Respondent is late. Mr.

Alawode applied that the name be struck out. There was no

objection, the name of the 11th Respondent (Surveyor

Oyebode, Member Kwara State Government Boundary

Committee) was struck out, the 12th Respondent (Mr. S.B.

Suleiman, Secretary, Kwara State Government Boundary

Committee) then became the 11th Respondent.

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In arguing the appeal, the learned counsel to the Appellant

Tosin Alawode Esq, with Abdulrazaq A. Daibu Esq,

Ayokunle Olufade Esq, and Cletus Uduma Esq. adopted and

relied on his brief of argument filed on 28/3/17 and his

reply brief filed on 12/10/17. The Learned Counsel also

submitted a list of additional authorities to the effect that

the High Court of the State does not have jurisdiction over

boundary matters except in a supervisory role to review the

decision of the boundary dispute committee in urging us to

allow the appeal and set aside the decision of the trial

Court. In arguing his first issue, whether the cause of

action of the 1st – 6th Respondents is not statute barred, it

was submitted that the action is statute barred owing to the

combined effect of Section 29 of the National Boundary

Commission (Establishment) Act, Section 2(a) of Public

Officers’ Protection Act and Order 48 Rule 4 (2) and (3) of

the Kwara State High Court Civil Procedure Rules, 2005

which all provide a period of three months to institute this

kind of action. It was submitted that even though the trial

Court acknowledged the applicability of these laws

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premised his finding on the time the Ex parte Application

for Leave to Apply for Judicial Review as the time to be

reckoned with in the determination of the question whether

or not the matter is statute barred as against the time the

substantive Application was filed, reference was made to

the trial Court’s findings at paragraph 6 of page 368 and

paragraph 5 of page 369 of the printed records of appeal. It

was argued that it is not in dispute that the decision

challenged was read on 10th February, 2010, vide an ex

parte application dated 7th May, 2010 but, filed on 10th

May, 2010 which sought for leave of the Court to apply for

judicial review by way of certiorari.

Further, that the ex parte application was heard and

granted on the 1st of June, 2010 upon which the 1st – 6th

respondents thereafter filed the Substantive Application on

10th June, 2010. It was submitted that by the 1st day of

June, 2010 when the ex parte application was granted and

as at the 10th day of June, 2010 when the substantive

Application was filed, three months period had lapsed.

It was the contention of the learned counsel that the leave

sought would determine whether the substantive matter

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would be filed or not, it is not the date to be reckoned with

in respect of the substantive process, reliance was placed

on the cases of UGOH VS. BENUE STATE L.G.S.C.

(1995) 3 NWLR (PT. 383) 288 at 322 and TABAI VS.

THE V.C. R.S.U.S. & TECH. (1997) 11 NWLR (PT. 529)

373 at 379 – 380. The learned trial judge was said to have

erroneously relied upon the case ofIYOHO VS. EFFIONG

(2007) ALL FWLR (PT. 374) 204 at 217, the above

decision was distinguished from the present case. It was

argued that the ex parte application for leave to apply for

judicial review and the substantive application ought to

have been filed within the period allowed by the applicable

law. See, P.P.A. VS. INEC (2012) 13 NWLR (PT. 1317)

215 at 239 – 240, F – C. It was concluded on this issue

that a limitation period cannot be extended by the Court

under any guise or by any act of judicial activism; reliance

was placed on the cases of A.C.B. PLC VS. N.T.S. (NIG)

LTD (2007) 1 NWLR (PT. 1016) 597 at 635, G – H;

EGBE v ADEFARASIN (1985) 1 NWLR (PT. 3) 549 at

568; HASSAN VS. ALIYU & ORS (2010) 17 NWLR (PT.

1223) 547 at 623, D – H; AMADI VS. INEC

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(2012) 4 NWLR (PT. 1345) 595 at 637, A – C; AJAYI

VS. ADEBIYI (2012) 11 NWLR (PT. 1310) at 137 and

SULGRAVE HOLDEN INC. VS. F.G.N. (2012) 17 NWLR

(PT. 1329) 309. It was submitted that the action having

been commenced outside the mandatory three months

period allowed by the law, the action is statute barred and

the trial Court had no jurisdiction to entertain it.

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 adopted and

relied on his brief of argument filed on 26/9/17 but, deemed

filed on 28/9/17 as well as his list of additional authorities

to the effect that he cannot withdraw affidavit evidence, in

urging us to dismiss the appeal and affirm the judgment of

the lower Court. The appellant’s reply brief was said to

have been a re-argument of the appeal. In response to the

appellant’s first issue, it was submitted that the Public

Officers’ Protection Law or Act is not applicable; reliance

was placed on the case of FRN VS. IFEGWU (2003) 45

WRN 27, 69. It was admitted that the duty performed by

the 7th – 12th Respondents

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necessitating the remedy for certiorari is the determination

of a boundary dispute between the two communities, Iwo

and Odo-Eku which was said to be a judicial role and not an

administrative act. It was argued that the Public Officers’

Protection Act or Law relevant to executive or

administrative actions is irrelevant. It was submitted that

the crux of this issue are: when the cause of action accrued

and when the action was instituted? The learned Senior

Counsel agreed that the period allowed by law is three

months within which to have instituted the action and

posed the question as to whether this action was

commenced within three months accrual of the cause of

action? It was submitted that the processes for determining

the above question are the ones filed by the applicants for

the relief of certiorari and not the defence, reliance was

placed on DR. JAM AGBONIKA VS. UNIVERSITY OF

ABUJA (2014) ALL FWLR (PT. 715) 335, 353, JUDE

OGBONNA VS. AGHAEGBUNAM EZEWUZIE (2014)

ALL FWLR (PT. 755) 336, 354 – 355 and ACTION

CONGRESS OF NIGERIA VS. INEC (2014) ALL FWLR

(PT. 716) 460, 474 – 475.

It was submitted that the parties agreed that the Report

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and Decision leading to the suit was delivered on 10th of

February, 2010 and that from 11th February, 2010 – 10th

May, 2010 when this action was commenced by an Ex-parte

application as prescribed by the applicable rules of Court,

the action was commenced eighty nine (89) days, a day

short of the ninety (90) days prescribed by the respective

laws cited by the appellant. It was submitted that the suit

was competently commenced as prescribed by all relevant

limitation laws on judicial review by way of certiorari and is

not statute barred.

It was the contention of the learned Senior Counsel that an

action for judicial review by way of certiorari shall be

commenced by leave of Court vide an ex parte application

within three months of the cause of action for judicial

review which the 1st – 6th Respondents duly complied with.

It was argued that the application for leave is reckoned

with in the three months period for the commencement of

action for judicial review, reliance was placed on Order 48,

Rule 3(1) and (2) of the Kwara State High Court (Civil

Procedure) Rules, 2005, also Rule 4 (1) as well as the cases

of CORPORATE IDEAL INSURANCE LTD

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VS. AJAOKUTA STEEL CO. LTD (2014) ALL FWLR (PT.

731) 1441, 1458, 1459; 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. It was submitted that

Order 48 Rule 3 (1) – (9) of the Kwara State High Court

(Civil Procedure) Rules 2005 made it clear that the ex parte

application for leave commences an application for

certiorari and should be read with Order 49 Rule 9 (a) and

(b). It was argued that the application for leave is equated

with a writ and 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 stressed that by the ex parte application the 1st – 6th

Respondents commenced the action within the time

allowed and using the prescribed process.

It was contended by the learned Senior Counsel that the

7th – 12th Respondents’ 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. It was

also argued that the learned

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counsel to the appellant was wrong to have equated leave

to appeal with leave for judicial review. It was concluded on

this issue that the trial Court was right in holding that the

ex parte application for leave to apply for judicial review

commences an action for judicial review. It was argued that

the action was competently commenced within the time

frame allowed and is not statute barred.

In reply to the submissions of the Learned Senior Counsel

in respect of issue one, it was submitted by the learned

counsel to the appellant that the 1st – 6th Respondents did

not cross appeal or file a Respondent’s Notice to challenge

the findings of the lower Court to the effect that the Public

Officers’ Protection Act is applicable to an application for

Judicial Review argued in the 1st – 6th Respondents’

paragraphs 4.12 to 4.13 at page 7 of their brief of

argument, reliance was placed on the cases of CHAMI VS.

UNITED BANK PLC (2010) 6 NWLR (1191) P. 474 at

496, PARAS. F – G, EZUKWU VS. UKACHUKWU

(2004) 17 NWLR (902) 227 and OJABO VS. INLAND

BANK NIG. PLC. (1998) 11 NWLR (574) 433.

Section 29 of the National Boundary Commission

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(Establishment) Act was argued to be applicable in the

present circumstance. It was concluded that “leave” sought

and had is only permission to commence the action.

The appellants’ issue one is similar to that of the

respondents which is: whether the cause of action of the

claimants/1st – 6th Respondents is not statute barred? The

appellants contend that the action of the claimants (now 1st

– 6th Respondents) was statute barred from the combined

effect of Section 29 of the National Boundary Commission

(Establishment) Act, Section 2(a) of the Public Officers’

Protection Act and Order 48 Rule 4(2) and (3) of the Kwara

State High Court (Civil Procedure) Rules, 2005 which all

provide a period of three (3) months for the institution of

the type of action that led to this appeal. From the records

of Court, the learned trial judge acknowledged the

applicability of these laws which narrows down the

appellants’ issue one. The only issue now is when the

permitted time commenced? The learned trial judge found

that the time the Ex-parte application for leave to apply for

judicial review is the time to be reckoned

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with in the determination of the question whether or not

the matter is statute barred as against the time the

substantive application was filed, at paragraph 6, page 368

and paragraph 5 of page 369 of the records of appeal. The

decision being challenged was read on 10th of February,

2010, there is no dispute about this date. Also, that the 1st

– 6th Respondents’ ex-parte application dated 7th May,

2010 which sought the leave of the Court to apply for

judicial review by way of certiorari was heard and granted

on the 1st day of June, 2010 following which the

substantive application was filed.

It is therefore evident and not disputed that as at 1st June,

2010 when the ex-parte application was granted and 10th

June when the substantive application was filed, three

months period had lapsed. The trial Court relied on the ex-

parte application in computing when action was taken. But,

looking at the ex-parte application on the face of it, simply

sought “leave to seek the following Reliefs:” the reliefs

were thereafter listed which included declaratory reliefs as

well as to quash the proceedings and decision of

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the 7th – 11th Respondents constituted as the Kwara State

Boundary Committee of 10th February, 2010 in the dispute

between the two communities, pages 1 – 16 of the printed

records of appeal. In other words, what was sought was

leave to file the substantive application. If granted, the

applicants would proceed to commence their action by

filing the Motion on Notice or summons whatever the case

may be, as provided under Order 48 of the Rules of the

Court. Where it is refused, it ends there and the applicant

would be unable to commence any action. To my mind the

action can only commence after the grant of the leave.

Order 48 Rule 3 of the Rules provides that:

3(1) “No application for judicial review shall be made

unless the leave of the Court has been obtained in

accordance with this rule.”

It cannot therefore be r ightly argued that the

commencement of the substantive application for judicial

review would be from the date the application for leave was

sought as argued by the learned Senior Counsel. The lower

Court was wrong to have computed the date the action was

filed from the date the leave was sought to hold that the

action was filed within the time

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allowed, ninety (90) days. On the other hand, the grant of

the leave is not automatic on application, the Court would

at that stage examine whether a prima facie case has been

made out for an application for an order of certiorari. In the

application for leave, the applicant would have to disclose

some injury done to him for which he seeks a redress,

which would be highlighted in the affidavit in support of the

application for leave. At that stage, the trial Court would

limit its decision to the ex-parte application only and would

not touch or pronounce on the substantive application not

yet before him. See, UGOH VS. BENUE STATE L.G.S.C.

(supra) and TABAI VS. THE V.C., R.S.U.S. & TECH

(supra). In simple language or definition, “leave of Court”

means judicial permission to do something. It cannot be

taken to be the doing of what “leave” is sought to be done.

Where the leave is granted, then the next stage is to make

the substantive application, which is the date the action

would be reckoned to have commenced. The purpose for

the application for leave to precede the application for a

judicial review (as in the

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present case) was explained by the Supreme Court by his

lordship, Craig, JSC in IGBOHO, IREPO LOCAL

GOVERNMENT COUNCIL and COMMUNITY VS. THE

BOUNDARY SETTLEMENT COMMISSIONER & ANOR

(1988) LPELR – 1449 (SC) P. 28, PARAS. D – G (also

reported in (1988) 1 NWLR (PT. 69) P. 189 and (1988)

ANLR P. 111) held that:

“In this respect, it must be borne in mind that an

application for judicial review is effected by two

distinct steps: 1. The applicant files an application for

leave to apply for the judicial review in this case, an

order of certiorari. This application is made ex-parte.

2. If the applicant shows a prima facie case, and leave

is granted, then he would file an application for an

order of certiorari to issue. This is by Motion on

Notice to the Respondents in the case. See, REG. VS.

I.R.C. EX – PARTE FEDERATION OF SELF-EMPLOYED

and SMALL BUSINESS LIMITED (1982) AC 617 at

642.”

(underlined mine for emphasis)

See also OFFOR and ORS VS. HIS WORSHIP M.D.

KANU ESQ (2016) LPELR – 40462 (CA) PP. 24 – 26 D –

A. It is clear then, that the date of filing the substantive

process would

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determine the commencement of the action for certiorari. I

agree with the learned counsel to the appellants that the

trial Court was wrong to have held that the ex-parte

application is the initiating process in the matter. At page

368 of the printed records of appeal, the learned trial judge

rightly determined when the computation of the ninety (90)

days should commence, which is the day following the

decision/report of the committee of 10th February, 2010.

Commencement date was rightly held to be 11th February,

2010 and to end on 10th May, 2010 which is the last date

the Respondents as applicants had to file their application.

The trial judge rightly held thus:

“In the light of the foregoing authorities, in

calculating the three (3) months period prescribed for

filing an action against the proceedings, report,

judgment or decision of the Kwara State Government

Boundaries Committee by law, the date 10th

February, 2010 on which the said committee delivered

its report, judgment/decision must be excluded.

Consequently, the calculation must commence on the

11th February, 2010 and three (3) months from that

date would ordinarily end at midnight of the

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10th May, 2010. See, AZEEZ AKEREDOLU & ORS VS.

LASISI AKINREMI (1985) NWLR (PT. 10) 787 and

ACN VS. INEC (2014) ALL FWLR (PT. 716) 460.

In my view, in law and fact, the applicants herein had

up to the midnight of the 10th May, 2010 to file their

action against the report, judgment/decision of the

Kwara State Government Boundaries Committee.”

But, the learned trial judge wrongly held that the

commencement of the action/application was from the date

the ex-parte application for leave to apply for judicial

review by way of certiorari was filed, on 10th May, 2010 to

conclude that the applicants’ suit was filed within the

period prescribed for so doing. The trial Court erroneously

held thus:

“Hence having filed their ex-parte application for

leave to apply for judicial review by way of certiorari

which in my opinion is the originating or initiating

process in this case before midnight on 10th May,

2010, applicants’ suit was filed within the period of

time prescribed for so doing.”

I hold that the above computation is wrong. The learned

trial judge concluded at page 369 of the records thus:

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“Be that as it may, it is not open to any argument that

the applicants’ suit was initiated, instituted or filed

within the period prescribed by the relevant law(s). It

is therefore clear to me that this suit is not caught up

by any of the limitation laws relied on by the

respondents in this case. It is competent and valid

and I so hold.”

The above conclusion by the learned trial judge is also

erroneous. The learned trial judge was wrong to have relied

upon and equated this case with the situation in IYOHO

VS. OFFIONG (supra) which dealt with a situation where

an application for judicial review was filed within the

period allowed for appeal. The Court frowned at such

application because it implied that if allowed and an appeal

is filed, it would be in existence at the same time as the

application for judicial review. The refusal is to avoid

duplicity of actions, that is, an appeal being filed at the

same time, the possibility of judicial review being filed

within the period to appeal. The above case is not

applicable.

On the other hand, I am of the humble but, firm view that

the application ex-parte and the application on Notice for

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judicial review should have been filed within the period

allowed, that is ninety (90) days from the date of the

decision/report of the committee. In the present case, the

substantive application was filed by the 1st – 6th

Respondents on 10th June, 2010 following the grant of the

application ex-parte on 1st June, 2010. The commencement

date of action was on 10th, June, 2010 which is outside the

ninety (90) days prescribed. The resultant effect is that the

action is statute barred. The action having become statute

barred the lower Court had no jurisdiction to have

entertained the matter. The 1st – 6th Respondents (as

applicants) failed to invoke their right of action in time and

ran the risk of the extinction of such a right of enforcement

and of entitlement to a judicial relief. See, ASABORO AND

ANOR VS. PAN OCEAN OIL CORPORATION (NIG) LTD

and ANOR (2017) LPELR – 41558 (SC) per Nweze, JSC,

at PP. 40 – 42, PARAS. B – E, A.C.B. PLC VS. N.T.S.

(NIG) LTD (2007) 1 NWLR (PT. 1016) 596, 637,

IBRAHIM VS. JSC KADUNA (1998) 12 KLR (PT. 73)

2489. In the case of OSUN STATE GOVERNMENT VS.

DALAMI NIGERIA LTD (2007) LPELR – 2817 (SC) P.

11, PARAS. C – E, his

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lordship Katsina Alu, JSC (as he then was) simply defined

an action that is statute barred thus:

“The general principle of law is that where a statute

provides for the institution of an action within a

prescribed period, proceedings shall not be brought

after the time prescribed by such statute. Any action

that is commenced after the prescribed period is said

to be statute barred. See, IBRAHIM VS. J.S.C. (1998)

14 NWLR (PT. 584) 1.”

Similarly, in INEC v. OGBADIBO LOCAL GOVT. & ORS

(2015) LPELR – 24839 (SC) P. 35, PARAS. D – F, his

lordship Onnoghen, JSC (as he then was) reiterated and

emphasized in the same way that:

“It is settled law that a limitation law, such as the

provisions of Section 2 (a) of the Public Officers

Protection Act, takes away the legal right of a litigant

to enforce an action leaving him with an empty shell

of a cause of action where the action is not instituted

within the time frame enacted in the statute of

limitation. Where the action is instituted outside the

time so allotted by the statute, we say that the action

so instituted is statute barred and cannot be

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maintained since it robs the Court of the jurisdiction

to entertain and determine same.”

The limitation of action statutes usually make provisions to

limit the period of time within which an action in certain

cases can be enforced or protected through the judicial

process of the Courts. Where a statute prescribes a period

within which an action must be commenced or initiated, the

proceedings cannot be properly and validly commenced or

initiated after the expiration or outside the prescribed

period for the enforcement or protection of such right. A

statute of limitation therefore removes the right of action,

enforcement and judicial relief. In the case of DUZU and

ANOR v YUNUSA & ORS (2010) LPELR – 8989 (CA);

(2010) 10 NWLR (PT. 1201) P. 80 this Court gave the

rationale behind the limitation of actions generally to

include the following:- (1) long dormant claims have more

of cruelty than justice in them; (2) a defendant might have

lost the evidence to disprove a stale claim; (3) persons with

good causes of action should pursue them with reasonable

diligence. Reliance was placed on LLOYD VS. BUTLER

(1950) 1 KB 76 and JONES VS. BELLGROVE

PROPERTIES

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LTD (1949) 2 KB, 700, AREMO II VS. ADEKANYE

(2004) ALL FWLR (PT. 224) 2113 at 2131, NPA VS.

AJOBI (2006) 7 SC (PT. 1) 23; (2006) 13 NWLR (PT.

998) 477 and AMUSAN VS. OBIDEYI (2005) 6 SC, 147

amongst others.

From all that I have said, the trial Court was wrong to have

held that the 1st – 6th Respondents’ action at the lower

Court was not statute barred; I am of the contrary view and

hold that it was. Therefore, the trial Court had no

jurisdiction to have entertained the matter. The appellant’s

issue one is resolved in his favour.

Having resolved the appellant’s first issue in his favour,

there would be no need to look into the rest of the issues as

to whether the proper parties were before the Court or not,

evaluation of evidence and findings of the trial Court. The

appeal is allowed on the resolution of issue one alone.

Resolving the other issues would be a waste of judicial

time.

In sum, the decision of the trial Court is a nullity, same is

hereby set aside. Parties to bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had the

privilege

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of reading the draft of the lead Judgment just delivered by

my learned brother, CHIDI NWAOMA UWA, JCA

I agree with the reasoning and conclusions therein. I also

allow the Appeal. I abide with the consequential Order.

HAMMA AKAWU BARKA, J.C.A.: 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.

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Appearances:

Tosin Alawode, Esq. with him, Abdulrasaq A.Daibu, Esq., Ayokunle Olufade, Esq. and CletusUduma, Esq. For Appellant(s)

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

Funsho D. Lawal, Solicitor General of KwaraState - for 7 th -11th Respondents ForRespondent(s)

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