In the Supreme Court of Nigeria Holden at Abuja On Friday, the 4th day of June, 2021
Before Their Lordships
Mary U. Peter-Odili
John Inyang Okoro
Ibrahim Mohammed Musa Saulawa
Justices, Supreme Court
1. HON. FRANCIS ALUU OKO
2. HON. JOSEPH O. CHUKWU
3. HON. AMA O. UCHE APPELLANTS
(For themselves and on behalf of all
Councillors of Ebonyi State who served
for the period of 1999-2002 and whose
certificates of return are hereto annexed)
ATTORNEY-GENERAL OF EBONYI STATE RESPONDENT
(Lead Judgement delivered by Honourable Ibrahim Mohammed Musa Saulawa, JSC)
The Appellants were elected as Councillors into the various Local Government Councils, in Ebonyi State. They served between 1999 to 2002, during which they continued to receive their salaries and some other entitlements and allowances. After the expiration of their tenure, they alleged that they were denied some entitlements and severance allowances, which they alleged were approved by the Revenue Mobilisation and Fiscal Commission as per Exhibits C & D in 2001. The said documents were subsequently certified in 2008. In 2002, the Law No. 5 of 2002 which effectively outlawed the payment to and the enjoyment by the Appellants of severance allowances, was passed by the Ebonyi State House of Assembly. The Appellants did not take any step to challenge Law No. 5, or to enforce their rights to the severance allowances.
In 2010, another Policy Statement was issued by the Federal Government in Exhibit H, reiterating the Councillor’s entitlement to payment of severance allowances. Further to this, the Appellants filed an action at the High Court of Ebonyi State, claiming respectively against the Respondent, the severance allowances withheld since 2002 when their tenure elapsed. They also sought orders mandating the Ebonyi State Government to pay the salaries of their domestic staff, personal and special assistants, as well as accommodation, furniture and constituency allowances which they claimed they were entitled to, but were not paid for the three years they spent in office.
The Respondent filed a Notice of Preliminary Objection challenging the competence of the suit, on the basis that it was statute barred having been filed after the five-year period after the accrual of the cause of action. They placed reliance on the provisions of Section 18 of the Limitation Law of Ebonyi State. After hearing arguments of counsel on both sides, the trial court sustained the Respondent’s Preliminary Objection, and struck out the suit for being statute barred. Dissatisfied, the Appellants appealed to the Court of Appeal, which court dismissed the appeal and affirmed the ruling of the trial court. As a last resort, the Appellants filed an appeal to the Supreme Court.
Issue for Determination
In resolving the appeal, the Supreme Court considered the following issue:
Whether the Court of Appeal was right when it held that the cause of action clearly accrued in 2002 when the Appellants left office at the expiration of their tenure of office as Councillors, despite the intervening effects of Exhibits C, D and H, and thus, dismissed the Appellants’ appeal on the basis that the suit was statute barred.
Counsel for the Appellants contended that accrual of rights is not the same thing as accrual of cause of action or right of action, and an unviolated right does not confer on the holder of the right, any right of action because there is no cause of action. He submitted that the rights that accrued to the Appellants remained with the Appellants unviolated, until they made the request for their entitlements in 2008 and the request was turned down, and the Appellants were then given the right to go to court, further to the cause of action. He cited DANGANA v GOVERNOR OF KWARA STATE & ANOR. (2001) 50 WRN PG. 40 at 41, on this point. Counsel argued further that the Limitation Act of Ebonyi State which limits action after five years has elapsed, is not applicable to the suit, as the Appellants were not aware of the existence of their rights to some of these entitlements until 4th July, 2008 when Exhibits C and D were certified and made known to them. He argued therefore, that time could not have begun to run against them before they got full knowledge of what was offered thereto. In support of this, counsel cited JELI CO LTD v OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR (Pt. 391) 534.
Responding to the submissions above, counsel for the Respondent argued that the rights of the Appellants became ripe in 2002 when they left office, after the duties enabling them to earn the allowances had been performed and concluded. He argued that by 2010 when they instituted the action after their request for the said entitlements were rebuffed in 2002, the limitation law had operated to bar them from approaching the court as they had slept on their rights in this regard. Counsel for the Respondent submitted further that the presence of Exhibits C, D made in 2001 but certified in 2008, did not whittle down the effect of Law No. 005 of 2002 which is to exempt the Appellants from severance allowances and other benefits as contained in the said law, and which was never challenged by the Appellants.
Court’s Judgement and Rationale
In its determination of this issue, the Court of Appeal distinguished accrual of rights from accrual of right of action or cause of action. The court referred to A-G, LAGOS STATE v A-G FEDERATION (2004) LPELR-SC 70/2004 in which legal right was defined as a right recognised by law and capable of being enforced by the Plaintiff; a right recognised and protected by a rule of law, the violation of which would be a legal wrong done to the interest of the Plaintiff, even though no action was taken.
The implication is thus, that an unviolated right does not confer on the holder of the right, any right of action, because there is no cause of action. The court held that, on the other hand, a right of action only accrues where the legal right has been violated. It is the infringement of that legal right, that is the cause of action which gives the holder the right of action, to activate the constitutional judicial powers of the court to enforce the legal right that has been violated. In summary, a right of action is the right to bring a specific case to court, which right can only be enforceable with the happening of certain events, and these events which must take place before the Claimant’s right of action is activated, is collectively referred to as cause of action.
Explaining further, the Appellate Court held that, it is the duty of the beneficiary of that right to make moves to claim his right. When the move is made without success or a favourable response from the other party, there is nothing more to infer than that the refusal to respond is tantamount to denial. At this point, the cause of action has accrued, and is now enforceable through the instrumentality of a judicial process. For the purpose of limitation of an action, time begins to run from the time when there is in existence a person who can be sued, and all facts have happened which are material to be proved to entitle the Plaintiff to succeed; that is, time begins to run when the cause of action has accrued. HASSAN v ALIYU (2010) 17 NWLR (Pt. 1223) 547.
The court held that it is not in doubt that the Appellants had rights to their salaries and other sundry allowances, since they performed their duties for three years. However, the proper time for the Appellants to have approached the court for any alleged non-payment of their entitlements, climaxed in 2002 when they left office. In this regard, the salaries and allowances of the Appellants’ domestic staff and assistants became ripe for enjoyment, at the end of each month of their three years in service; hence, the proper time for the Appellants to approach the court for each of the monthly entitlements, was at the end of each month. The Appellants’ accommodation, furniture and constituency allowances on the other hand, became due in piecemeal at the end of each year of their three years in office, and the proper time to approach the court was at the end of each year. The severance allowances on another hand, became due upon their vacation of office after their individual tenures expired in 2002. It follows therefore, that the last of these rights – the Severance Allowance – became ripe in 2002, when all the duties enabling them to earn the allowances had been performed and concluded.
Furthermore, from the Statement of Claim, the Appellants had written to the Ebonyi State Government in 2002, after they left office to have the accrued entitlements paid. Their letter was however, rebuffed by the Respondents who went ahead to enact Law No. 005 of 2002, which exonerated the State from paying the severance package. Hence, the wrongful act of the Respondent which gave the Appellant their cause of action, is the failure of the former to pay the latter their earned entitlements.
Still on the issue, the Apex Court found that, even if the Appellants were not aware of the existence of Exhibits C and D until they were certified and brought to their knowledge in 2008, they were certainly aware of their entitlements and the enactment and existence of Law No. 005 of 2002 by the Ebonyi State Government, that tried to block the payment of the severance package and other benefits thereunder. The knowledge notwithstanding, the Appellants failed to challenge the same to test its validity and enforce their rights to the said entitlements. They reclined and waited till 2010, more than eight years after the last of the alleged denials, at which time their right of action was statute barred before they approached the court for redress.
Furthermore, the fact that Exhibits C and D were certified in 2008 did not alter the date of making them, that is, 2001, for the purpose of computation of time.
D.D. Dodo, SAN with others for the Appellants.
Paul Awada, Esq. – Director, Civil Litigation, Ebonyi State for the Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)
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