Yarai v Modibbo Adama University of Technology Yola (CA/YL/109/2015) [2016] NGCA 34 (16 May 2016)

 JUDGMENT
(DELIVERED BY BIOBELE ABRAHAM GEORGEWILL, JCA):
This is an appeal against the ruling of the Federal High Court Yola Division in Suit No. FHC/YL/CS/4/2014: Ijandir Isaac Samuel Yarai V. Modibbo Adama University of Technology Yola delivered on 25/5/2015 by B. B. Aliyu J., in which the suit of the Appellant as Plaintiff was dismissed as having been statute barred by virtue of the operation of the provisions of Section 2 (a) of the Public Officers (Protection) Act LFN 2004  
The Apppellant as Plaintiff had on 26/8/2014 instituted an action by means of a writ of summons before the court below claiming several declarations and an order directng the Respondent as Defendant to release forthwith the Appellant’s statement of result for his onward mobilisation for the National Youth Service Corps Programme. The parties filed and exchanged pleadings together with written statements on oath of their respective sole witness coupled with copies of documents they each intend to rely upon at the trial in line with the requirements of the Rules of the Court below. See pages 3 – 47, 104 – 112 of the Record of Appeal for the Appellant’s writ of summons, statement of claim, reply to statement of defence, written statement on oath of his sole witness and copies of documents intended to be relied upon by him at the trial; see pages 56 – 64, 74 – 93 of the record of appeal for the Respondent’s statement of defence, written statement on oath of its sole witness and copies of documents intended to be relied uopn by it at te trial. 
At the close of pleadings, however, the Respondent as Defendant/Applicant on 25/11/2014 filed a Notice of preliminary objection challenging the competence of the Appellant’s suit on the sole ground that by virtue of Section 2 (a) of the  Public Officers (Protection) Act Laws of the Federation 2004, the action was statute barred having not been commenced within three months of the cause of action and praying the court below to decline jurisdiction and to dismiss the Appellant’s suit for being incompetent. The parties joined issues on the preliminary objection by way of filing and exchange of written addresses. On 23/4/2015, the court below heard the preliminary objection and in a considered ruling delivered on 25/5/2015 it upheld the preliminary objection and consequently dismissed the Appellant’s suit for being statute barred. See pages 65 – 66, 67 – 73, 98 – 103 and 149 – 167 of the record of appeal.     

The Appellant was disastisfied with the said ruling of the court below dismissing his suit and had promptly appealed against the said ruling to this court vide a Notice of appeal filed on 21/8/2015 on four grounds of appeal. The record of appeal was transmitted to this court on 19/11/2015 but deemed on 14/4/2016. The Appellant’s brief was filed on 16/2/2016 but deemed on 14/4/2016. The Respondent’s brief was filed 23/3/2016 but also deemed on 14/4/2016. The Appellant’s reply brief was filed on 4/4/2016 but deemed on 14/4/2016. However, on 23/3/2016 the Respondent filed a Notice of preliminary objection challenging the competence of the appeal.
At the hearing of the appeal on 14/4/2016, Miss Rabi Buba appearing with T. U. Danjuma Esq, and A. A Hamma Esq, for the Appellant adopted through T. U. Danjuma Esq, the Appellant’s brief and Appellant’s reply brief as their argument in opposition to the prelimainary objection and in support of the appeal and urged the court to dismiss the preliminary objection and to allow the appeal on the merit and to grant the reliefs sought in the Notice of appeal. On their part, Yahaya Mohammed Esq, Senior State counsel, Federal Ministry of Justice, Yola Office appearing with U. F. Ahmed Esq, State counsel for the Respondent adopted the Respondent’s brief as their argument in support of the preliminary objection, of  which ground one was withdrawn, and in opposition to the appeal and urged the court to uphold the preliminary objection and to strike out the appeal for being incompetent or to dismiss same for lacking in merit.
In the Appellant’s brief, the following three issues were distilled as arising for determination in this appeal, namely: 

ISSUES
1.    Whether or not the Appellant’s right to fair hearing was breached by the Respondent by its purported expulsion of the Appellant without according the Appellant a right of representation, in view of the provision of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999.
2.    Whether or not the trial Court was right to hold that the Respondent is protected/covered by the provisions of Sections 2(a) of the Public Officers Protection Act, Laws of the Federation of Nigeria, 2004.
3.    Whether or not the trial Court was right to hold that the Cause of action arose in 2010 in view of the negotiation and concerted efforts of the Appellant to get wrong reverted by the Respondent.
In the Respondent’s brief, the following three issues were distilled as arising for determination in this appeal, namely: 
1.    Whether or not the Appellant’s right to fair hearing could be determined when the Appellant failed to initiate his case within the 3 months period allowed by statute; Section 2 (a) of the Public Officers Protection Act, 2004? (Distilled from Grounds1 and 2)
2.    Whether the trial Court was right to have dismissed the Appellant suit by holding that it is statute – barred
3.    Whether or not the period of negotiation will stop prevent the period of     limitation from running?
I have given due consideration to the facts and circumstances of this appeal, particularly the facts in the pleadings of the Appellant and sole ground for the preliminary objection to the competence of  the Appellant’s suit and the ruling of  the court below. I have also considered the submissions of counsel in their respective briefs and I am of the view that the real isssues for determination  in this appeal are the three apt issues as concisely distilled in the Respondent’s brief and which consideration would in my view involve a consideration of the three issues as distilled in the Appellant’s brief.  Consequently, the three isssues for determination as distilled by the Respondent’s counsel are hereby set down as the three issues for determination in this appeal, namely: 

1.    Whether or not the Appellant’s right to fair hearing could be determined when the Appellant failed to initiate his case within the 3 months period allowed by statute; Section 2 (a) of the Public Officers Protection Act, 2004? (Distilled from Grounds1 and 2)
2.    Whether the trial Court was right to have dismissed the Appellant suit by holding that it is statute – barred
3.    Whether or not the period of negotiation will stop prevent the period of     limitation from running?
But first, there is the notice of preliminary objection of the Respondent challenging the competence of this appeal and it behoves this court to first consider and resolve it one way or the other, it being a challenge to the competence of the appeal and in law without a competent appeal there is nothing before the court on which to dissipitate any energy and time of both the parties and their counsel on the one hand and the court on the other hand considering and determining an incompetent appeal on the merit when it ought to be terminated in limine by way of its being struck out without much ado. See Adami V. Okoli (1977) 7 SC 571. See alos Olarenwaju V. BON Ltd. (1994) 8 NWLR (Pt. 364) 622; Peter Odofin & Anor V. Chief Agu & Anor (1992) 3 NWLR (Pt. 229) 230; Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Adewunmi V. Okefade (2010) 3 SCNJ 368.
 I proceed to consider the preliminary objection challenging the competence of this appeal anon. 

RULING ON PRELIMINARY OBJECTION
By a Notice of preliminary objection filed on 23/3/2016, the Respondent is challenging the competence of this appeal on the grounds that the record of appeal was transmitted out of time without the leave of this court and also that the three issues for determination as distilled by the Appellant’s counsel were incompetent and thus rendered the appeal itself incompetent. 
At the hearing of this appeal, the Respondent’s counsel had, consequent upon the regularisation of the record of appeal by this court on the application of the Appellant’s counsel to that effect, withdrawn the first ground for the preliminary objection as having been overtaken by events. The application to withdraw the first ground of obejcetion was not objected to by the Appellant’s counsel. Consequently, the first ground of the preliminary objection having been withdrawn it is hereby struck out. 
I now proceed to a consideration of the second ground for the preliminary objection. 
Learned counsel to the Respondent submitted that the questions which calls for determination of a vital point that when described one way or the other affects the fate of the appeal and urged the Court to strike out the Appellant’s three issues for determination and consequently to strike out the appeal for being incompetent. Counsel relied on FRN. V. Anache & Ors; In Re:Olafosoye (2004) 1 SCM 36 @ 62; Mbachu V. Anambra – Imo River Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 @ 1497.

Learned counsel to the Respondent submitted that the contention of the Respondent in its preliminary objection particulars of ground two number 1 – 4 are inconsequential as whosoever is reading same would arrive at the rightful conclusion/opinion that it is a question submitted for determination as such failure to put the question mark will not alter the intendment of the issues so submitted and urged the court to dismiss the preliminary objection. 
I have taken time to review the submissions of counsel to the parties on this ground of objection.  It does appear that the Appellant’s counsel did not consider this ground of objection of any adverse consequences on the competent of the appeal to be afforded any serious argument and thus made very little reference to it in one or two sentences in the Appellant’s reply brief, where he described it as inconsequential. 

However, the law is as aptly submitted by the Respondent’s counsel, and with which submission I am in complete agreement, that an issue for determination properly so called in an appeal is a question arising from one or more of the grounds of appeal which is on a vital point on the issues as joined between the parties in the appeal and which when decided one way or the other would affect the fate of the appeal, whether for good or for bad I may add. See FRN V. Anache & 3 Ors; In Re: Olafosoye (2004) 1 SCM 36 @ p. 62.
My lords. with the absence of any salient response by the Appellant’s counsel to the submissions of the Respondent’s counsel on the second ground of obejction, I take it as well settled and also conceeded to by the Appellant that an issue for determination in an appeal is as aptly defined or described by the Respondent’s counsel and shall be applied in my consideration of the competence or otherwise of the three issues as distilled by the Appellant’s counsel in this appeal. 
With the above uncontested position of the law borne in my mind, the only question to resolve in the second ground of preliminary objection is namely this: Are the three issues for determination as distilled by the Appellant’s counsel from the four grounds of appeal incompetent and thus rendered the appeal as merely amounting to an academic exercise? 

Th sole contention of the Respondent’s counsel would appear to be that the three issues for determination as distilled by the Appellant’s counsel are incompetent because they lack the question mark signs and which had thus rendered or made them mere “story telling” and the appeal a mere academic exercise. The Respondent’s counsel had sought in aid the decision in Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 @ p 1497, where Ogbuagu JSC, had stated inter alia thus: 
                      “All the other issues of the appellant, with respect, are most irrlevant to the crux of the instant appeal. They amount to “story telling” or academic exercise. Issues 1 and 2 have no question marks (?). Therfore, I ignore/discountenance them as non issues in all the circumstances of the case”

In that appeal, the Appellant had formulated six issues for determination. In his contribution to the leading judgment, Mohammed JSC, had observed thus: 
                       “Although six issues were distilled in the Appellant’s brief of argument from the grounds of appeal filed by the Appellant, all the issues were framed at large because only issue six really complained against the judgment of the Court of Appeal”
                    Now to some pertinent observations on the above lucid judgment of the Supreme Court. Firstly, it is to be noted that the said appeal was heard and determined on the merit by the Supreme Court. Secondly, and most importantly in my view, out of the six issues for determination only issue six carried a question mark (?) as can be seen in the law report. Yet, His lordsip, Ogbuagu JSC, who delivered the leading judgment still considered issues three and five and found them, not imcompetent but, grossly misconceived when he stated thus: 
                                    “Now coming to the crux of this matter, the appellant contends that the Respondent was in breach of its contract of employment with him. With respect, this contention and all the arguments proferred in respect thereof under issues nos. 3 and 5 of the Appellant’s brief are grossly misconceived”

                    My lords the above view of their eminent lordships of the Supreme Court in that appeal, that all the other five issues for determination save isssue six were either framed at large or grossly misconceived, does not in my humble understanding give rise to the construction or interpretation being canvassed by the Respondent in the instant appeal to mean that any issue for determination which does not carry the question mark (?) is incompetent. Indeed, in that appeal issues three and five which did not carry any question marks were still considered by His lordship, Ogbuagu JSC, and found to be grossly misconceived, while Mohammed JSC, considered issues one – five, which did not not carry any question marks, to have been framed at large. I am therefore, unable to see or indeed fathom the rationale behind the Respondent’s vehement contention that in law an issue for determination merely found to be either grossly misconceived or framed at large is tantamount to being found incompetent. 

                    It has long been a pervasive though very indolent, with due respect, practice for counsel to rely on judgments of the courts out of context to suit their fancies and arguments without taking time to read through the entire judgment with a view to clearly understanding its purport and decisions reached therein. In my thinking, and I believe I am right, it is such hollow appreciation of the illuminating judgments of their Lordships in that appeal that had led to the second ground for the preliminary objection challenging the competence of this appeal. 
                    In my view, therefore, there can be nothing more farther from the truth than to contend as did the Respondent’s counsel in this appeal that the three issues as distilled by the Appellant’s counsel, though with due respect very clumsy in my view, amounted to mere “story telling” and an academic exercise. I do not think so and in my view they are neither mere story telling, academic exercise nor framed at large to be considered on their merit. I cannot however, at this stage in this judgment without considering these issues for whatever they may be worth on the merit, decide if they are grossly misconceived or not. 

In whatever way, they are looked at, these three issues as distilled by the Appelant’s counsel are competent. In my finding and I so hold they are based on the crux of the matter between the parties in this appeal and flowing from the four grounds of appeal filed by the Apellant against the judgment of the court below.  It is in this sense only that I am now minded to take a second critical look at the attitude of Appellant’s counsel when he with a mere wave of the hand discountenanced the second ground of the preliminary objection as being inconsequential and concisely submitted in the Appellant’s reply brief thus:

       “Whoever is reading same would arrive at the rightful conclusion/opinion that it is a question submitted for determination, as such the failure to put the question mark will not alter the intendment of the issues so submitted”

                    I agree, though I thought I should hasten to point it out at once that it  is desirable that an issue for determination should carry a question mark.             

                    At any rate, and more importantly, the issue of question mark as raised by the Appellant in this appeal for the settled purposes of terminating as it were in limine the entire appeal is, to say the least and with due respect, taking the issue of technicality too far in our jurisprudence. I consider the lack of question mark, an omission solely by Appellant’s counsel and not by the Appellant, the litigant, as at most a mere human or typographical error which had in no way, misled the Respondent, as it was also not so argued. Interestingly, the Respondent’s counsel had, in the alternative to the Appellant’s counsel three issues for determination, distilled his own very apt three issues for determination, which I had already adopted and set down as the three issues for determination in this appeal. This issue as raised by the Respondent’s counsel therefore, in my view is not and cannot be an issue of competence or jurisdiction as could affect the competence of an appeal form being heard on the merit. It is akin to taking the issue of competence and jurisdiction a bit too far and reducing it, as it appears, to such a triffling level. 

                    A court of law, I must hasten to observe, does not concern itself with triffles but with substance and justice of the case which are weightier matters. The long accepted attitude of the courts is as enscapulated in the old age Latin Maxim: “de minimis non curat lex”, meaning the court does not concern itself with triffles. Indeed and assuredly, at all times and in all cases, it is the bourden duty of the courts to do, prefer and administer substantial justice over and far above mere technicality. See Nneji & Ors V. Chukwu & Ors (1988) NWLR (Pt. 81) 84. See also National Employers Mutual General Insurance Association Ltd V. Vehay (1973) 1 All NLR 170; Dr Okonjo V. Mudiaga Odje & Ors (1985) 10 SC 267; Afolabi V. Adekunle (1983) 8 SC 98; Onyema Oke & Ors V. Amos Eke & Ors (1982) 12 SC 218; Obadiaru V. Uyigue & Anor (1986) 3 SC 39; Nofia Surakatu V. Nigerian Housing Development Society Ltd. (1981) 4 SWC 26; Ojora V. Odunsi (1964) NMLR 12; Ojikutu V. Odeli (1954) 14 WACA 640; Jeric Nigeria Ltd. V. Union Bank of Nig. Plc (2007) 5 NWLR (Pt. 691) 477; Adegbuyi V. APC & Ors. (2013) LPELR  22799(CA). 
                    In Nneji & Ors v. Chukwu & Ors (supra), Wali JSC, had captured succinctly the real essence of rendering substantial justice at all time and in all cases thus: 

      “The attitude of this court has always been that whenever it is possible to determine a case on its merit, the court should not cling to mere legal technicalities to refuse a complainant (be it the Appellant or the Respondent) the opportunity of being heard.......”
                    I therefore, consider the issue of lack of question marks on issues one, two and three  as distilled by the Appellant’s counsel in the instant appeal as amounting to no more than mere technicality, a term which was aptly defined so admirably in Nneji & Ors V. Chukwu & Ors (supra) by Oputa JSC, thus: 

                                  “ I will at any time and any where cast my lot for truth and justice than for mere forml objection .....What is a technicality? A technical error is one committed in the course of a trial but withou prejudice to a party. It is an error which is purely abstract and harmless for pratical purposes. ‘Technical’ relates to details rather than principle” 

                    My lords, need I say anything more on this issue as touching on the mere technicality of the second ground of the preliminary objection in this appeal? I think I dare not but simply to bow to the wisdom ingarined in the words above and so I bow! 
                    In the circumsatnces therefore, I hold that the second ground of preliminary objection lacks merit and is hereby overruled and consequently the Noitice of preliminary objection filed by the Respondent on 23/3/2016 is hereby dismissed. The coast now seems clear for me to proceed to consider the merit of this appeal and I so do anon!
 
JUDGMENT 
                    I had earlier in this judgment adopted and set down the three issues for determination as distilled by the Respondent’s counsel as the three issues for determination in this appeal. Let me now consider these three issues for determination. I shall consider them ad seriatim commencing with the first issue. 

ISSUE NO. 1
Whether or not the Appellant’s right to fair hearing could be determined when the Appellant failed to initiate his case within the 3 months period allowed by statute; Section 2 (a) of the Public Officers Protection Act, 2004? 
Learned counsel to the Appellant submitted that the right to fair hearing is a constitutionally guaranteed right under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and contended that the Constitution makes it a fundamental right as such our Courts are enjoined to uphold 

the principles of fair hearing, which right entails that Courts and administrative tribunals must not only give equal treatment and opportunity to all parties but must also hear both sides on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.   Counsel relied on Ovunda V. Woko (2011) 17 NWLR (pt. 1277) SC 522 @ 555 – 6; Aiyetan V. Nifor (1987) 3 NWLR (Pt. 59) P. 48 @ 58; Garba V. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550, 603; Adigun V. A. G, Oyo State (1987) 1 NWLR (Pt. 53) P. 678 @ 682.
Learned counsel to the Appellant submitted that litigation on Constitutional Provisions touching on fundamental rights cannot be statute barred and contended that any action or act which is contrary to the Provisions of the Constitution, can be challenged at any time and cannot be statute barred. Counsel relied on Obi Akejule V. Delta State Government (2009) 17 NWLR (Pt. 1170) P. 29 @ 299.

Learned counsel to the Respondent submitted that where a statute provides for the commencement of an action within a given time or period no proceeding can be commenced after the period prescribed by the statute has elapsed and contended that any action instituted after the period is statute barred and the right of the Plaintiff/Appellant to commence the action is said to be extinguished by operation of  Law. Counsel relied on Osun state Government V. Dalami (Nig) Ltd (2007) 2 NWLR (Pt. 1017) P. 74 C.A; A. C. B. Plc V. N. T. S. (Nig) Ltd (2007) 1 NWLR (Pt.853) P. 142 @ 158 -159; Globe Fishing Industries Ltd V. Coker (1990) 7 NWLR (Pt. 60) P. 265 @ 278 – 279; Obeya Memorial Hospital Ltd V. A. G. Federation (1987) 3 NWLR (Pt. 60) P. 325; Lawan Sanda V. Kukawa Local Government (1991) 3 SCNJ (Pt. 35) P.41.

                    Learned counsel to the Appellant is his reply brief submitted that litigation on Constitutional fundamental rights provisions cannot be statute barred. Counsel relied on Obi Ajekule V. Delta State Government (2009) 17 NWLR (Pt. 1170) P. 292; Hassan V. Aliyu (2010) 17 NWLR (Pt. 1223) P, 547 @ 622; A. G. Rivers V. A. G. Bayelsa (2013) 3 NWLR (PT. 1340) P. 123; Obeya Memorial Hospital Ltd V. A. G. FED. (1987) 3 NWLR (PT. 60) P. 325; Mobil Oil Plc V. D.E.N.R. Ltd (2004 1 NWLR (Pt. 853) P. 142 @ 158 – 159
                    In considering the first issue for determination, two pertinent questions must be answered namely; 

1.    At the stage the court below dismissed the Appellant’s suit was the right     to fair hearing between the Appellant and the Respondent in issue? 

2.    Does time run against allegation of breach of any of the funadmantal rights of the citizen, including the right to fair hearing as guaranteed under Section 36 of the Constitution of Federal Republic of Nigeria 1999 as amended? 

                  On the first question, having calmly read through the record of appeal, particularly the pleadings, the submissions of counsel and the ruling of the court below, I am minded to agree with the Respondent’s counsel submission that the issue of the alleged breach of right to fair hearing of the Appellant by the Respondent was not an issue for determination in the preliminary objection challenging the competence of the Appellant’s suit and that the court below confined its consideration to only the issue whether or not the Appellant’s suit was statute barred.

                    The law is well settled that where there is a challenge to the competence of a suit, it touches on the jurisdiction of the court itself and must first be considered and determined one way or the other by the court. It follows therefore, unless and until the issue of jurisdiction is resolved the court would be acting in vain to proceed to consider the merit or otherwise of the suit as it can only do so if the issue of jurisdiction is resolved in favour of the Plaintiff’s suit. In this vein, the Respondent’s counsel was right on point when he contended, and quite rightly too in my view, that all the submissions of the Appellant’s counsel dealing with the alleged breach of the Appellant’s right to fair hearing by the Respondent, which is the subject matter of the Appellant’s suit which was terminated in limine before a hearing on the merit, are premature, irrelevant and grossly misconceived as they have no place in this appeal and I so hold.  The first question is therefore, answered in the negative against the Appellant.

                    Curiously however, it would appear that the Respondent’s counsel in  his haste and zeal to close the first issue for determination ended up not responding to the salient issue also canvassed by the Appellant’s counsel under the first issue as to whether in law time does run against an allegation of breach of the right to fair hearing. As uncontested as this salient issue has become in this appeal due to the absence of any submission to the contrary by the Respondent’s counsel, I feel duty bound in law as a court of law to still consider it on the merit. 
                    In the Appellant’s brief, reliance was placed on two decisions of the Supreme Court  namely; Aiyetan V. N.I.F.O.R (1987) 3 NWLR (Pt. 59) 48 and Adigun V. AG. Oyo State (1987) 1 NWLR (Pt. 53) 678 to contend that due to the fundamental nature of the right to fair hearing as guaranteed under Section 36 of the Constitution of Nigeria 1999 as amended, time does not run against an allegagtion of its breach such as the claim of the Appellant against the Respondent. On the other side of the scale there was, as I had earlier noted, no submissions of law on the part of the Respondent’s counsel.
                    Be that as it may, I have taken time to read through the law reports of these two decisions and regrettably, but with due respct to Appellant’s counsel, they did not make any such pronouncement of law as was canvassed by the Appellant’s counsel in this appeal. However, I bear in mind that the Appellant’s suit was initiated by means of a writ of summons and not by way of an originating application pursuant to the Fundamental Rights (Enforcement Procedure) Rules 2009 for the enforcement or securing of the Appellant’s right to fair hearing against the Respondent. 

                    An indepth research on this aspect of the law in the preparartion for the writing of this judgment revealed to me that the law is that whilst a claim for declaration touching on the right to fair  hearing initiated by way of a writ of summons is not strictu senso an application for the enforcement of fundamental right and thus not protected by the succinct provision of Order 3 of the Fundamantal Rights (Enforcement Procedure) Rules 2009, which came into force on 11/12/2009 to oust the operation of any statute of limitation, of which the Public Officers (Protection ) Act 2004 is one, See C. P. C. V. INEC & Ors. (2011) 18 NWLR (Pt. 1279) 493,  on the other hand an originating application made pursuant to the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 enjoys the protection afforded by the provisions of Order 3  thereof, which provision, for the purpose of  emphasis, is reproduced hereunder thus: 

              “An application for the Enforcement of fundamental right shall not be affected  by any statute of limitation whatsoever”  

    It is therefore, the law that whilst an application for the enforcement of the fundamental rights  of the citizen pursaunt to the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 is not affected by the operation of any statute of limitation, including the Public Officers (Protection ) Act 2004, it is not the same for a claim for declarations such as the Appellant suit initiated by means of a writ of summons which is not protected by the provision of Order 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and thus affected by any relevant statute of limitation and where commenced outside the prescribed period of limitation would become statute barred in law. See Mallam Nasir Ahmed El – Rufai V. Senate of the National Assembly & Ors  ( 2014) LPELR 423115 (CA), where Adumein JCA, had stated succinctly thus: 
    “It is therefore, clear that an action for the enforcement of a person’s fundamental right cannot be defeated by the provisions of a statute of limitation”
In the circumstances therefore, I have no difficulty resolving the first issue for determination in the negative against the Appellant and hold firmly that the isue of fair hearing was not at the stage in which the Appellant’s suit was dismissed by the court below an issue properly arising for determination and further that the Appellant’s suit initiated by writ of summons claiming declarations and orders against the Respondent is not an application for the enforcement of the Appellant’s right to fair hearing pursaunt to the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 and thus not protected by the provision of Order 3 of the said Rules 2009 which oust the operation of any statute of limitation.          

ISSUE NO. 2
Whether the trial Court was right to have dismissed the Appellant suit by holding that it is statute – barred?
In my understanding of the facts and circumstances of this appeal, this issue is the real crux of the matter as it deals with the most pertinent question in this appeal on whether on the pleadings and circumstances of the Appellant’s suit against the Respondent was the suit statute barred  by virtue of the operation of Section 2 (a) of the Public Officers (Protection) Act LFN 2004? 

Learned counsel to the Appellant had submitted that where the words used in statute are clear and not ambigious effect should be given to them.  Counsel relied on Federal Government of Nigeria V. Zebra Energy Ltd (2002) All FWLR (Pt. 92) P. 1749 @ 1771; Momoh V. Okewale (1977) 6 SC 81 @ 88 – 89; NECO V. Tokode (2011) 5 NWLR (Pt. 1239) P. 45; Ibrahim V. JSC Kaduna (