"The appellants contended that Section 2(a) of the Public Officers Protection Act Cap P41 LFN 2004 (POPA) has rendered the respondent's cause of action statute barred. They rely on EGBE v. ALHAJI (1989) 1 NWLR (pt. 128) 546; IBRAHIM v. J. S. C. (1998) NWLR (Pt.584) 1; OSUN STATE GOVT. v. DANLAMI (NIG) LTD (2007) 9 NWLR (pt. 1038) 66, and F. R. I. N v. GOLD (2007) 11 NWLR (pt.1044) 1 for the contention that the respondent's cause of action, having elapsed by effluxion of time, had become extinguished by Section 2(a) of POPA at the time the suit was taken out on 14th April, 2006.
The issue of jurisdiction raised from these facts is that the respondent's cause of action having become statute-barred, the trial Court lacked jurisdiction to entertain it. In the first place, the appellants did not raise this special defence at the trial. They did not file any defence or counter-affidavit to challenge the facts which the respondent's cause of action was predicated. The averments, in the supporting affidavit of the respondent remain unchallenged, and are consequently taken or deemed to have been admitted. Paragraph 17 of the said supporting affidavit avers "that on receiving the letter of expulsion, Exhibit E, the respondent wrote Exhibit F to appeal the decision and ask for the review of the expulsion. She got no reply or response thereto.
The question that follows is; when did the cause of action accrue to warrant the appellant's invocation of Section 2(a) of POPA? This is a question of fact. I agree, as submitted for the appellants relying on BRONIK MOTORS v. WEMA BANK LTD (1983) 1 SCNLR 296, that it is the claim of the plaintiff that determines the jurisdiction of the Court of first instance that entertains the claim. In the appellate jurisprudence, the burden is on the appellant to show how and in what way the trial Court or the Court below erred in its decision. To corroborate this, Section 131(1) of the Evidence Act, 2011 [formerly Section 134(1)] firmly places on whoever desires any Court to give him judgment as to any civil right or obligation dependent on the existence of facts which he asserts must prove that those facts exist.
The appellants have not pointed at or shown on what legal evidence have they situated their invocation of Section 2(a) of POPA. The appellants may have obtained leave to raise and argue this fresh issue about the suit or claim of the respondent at the trial Court being statute-barred by the operation of Section 2(a) of POPA. They, however, did not obtain any leave to adduce fresh or additional evidence. The operational facts in this case are those facts in the claim of the respondent as contained in her supporting affidavit. The appellants cannot insist on the cause of action accruing from the date the letter of expulsion in Exhibit E was written, that is 3 months from 22nd December, 2005, without showing when the letter was infact delivered to her, or when the fact of her expulsion was brought to her knowledge. The computation of the 3 months, for purpose of the limitation imposed by Section 2(a) of POPA starts from the date the cause of action accrue. In this case, it should start from when the expulsion or the letter of expulsion, Exhibit E, was either brought to the knowledge of the respondent or from the date the letter Exhibit E was delivered. It is therefore, not enough that the letter was written.
This Court, in EJEGI v. C. O. P (1977) 10 SC 11, has held that a driving licence prepared, but not delivered to the driver or his agent, is not a certificate issued until it was delivered. On this analogy, I hold firmly the view that for the appellants to successfully plead the three month limitation, on the basis of their letter of expulsion, Exhibit E; they must also prove the date the said letter was delivered to the respondent and that she became seised of the fact and knowledge of her expulsion from thence.
I therefore agree with the counsel for the respondent that the actual date the letter of expulsion was brought to the respondent is material for the computation of the period of limitation. The learned counsel, relying on U.B.A. PLC v. BTL INDUSTRIES LTD (2007) ALL FWLR (Pt.352) 1619 at pages 1650 - 1651; JALLCO LTD v. OWONIBOYS TECH. SERVICES LTD (1995) 4 NWLR (pt. 391) 534; A. G, BAYELSA STATE v. A. G, RIVERS STATE (2007) ALL FWLR (pt.349) 1012, submits and I agree that the respondent's right to the cause of action accrued to her from the date she became aware of the cause of action. Section 135 of the Evidence Act, 2004 (now Section 132 of the Evidence Act, 2011) places the burden of proof in a suit or proceeding, on that party who would fail if no evidence at all were given on either side. In this case the burden of proving their defence or objection founded on Section 2(a) of POPA is on the appellants to discharge.
This evidential burden they have failed to discharge. They failed to prove the date the cause of accrued to the respondent. This, of course, is fatal to the appellant's case. Limitation provisions, like penal provisions, take away or derogate from vested rights. They have to be construed strictly. See WILSON v. A.G, BENDEL STATE (1985) 1 NWLR (Pt.4) 572; OJO v. GOVERNOR OF OYO STATE (1989) NWLR (Pt.95) 1. The right of the respondent vested by law cannot just be set aside by the mere ipsi dixit of the appellants. In any case the respondent's right to enforce her Fundamental right to fair hearing is one specially vested by Section 46(1) of the 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules. Accordingly, reasoning as this Court did in UZOUKWU v. EZEONU II & ORS (1991) 6 NWLR (Pt. 200) 708 at 761, I hold that the right to enforce fundamental rights stands above the ordinary laws, including Section 2(a) of POPA; which in my firm view is inapplicable in the circumstance."
Per EKO, J.S.C.IN FUTMINA & ORS v. OLUTAYO CITATION: (2017) LPELR-43827(SC)
