When limitation law won’t apply – SC

IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA ON FRIDAY, THE 22ND DAY OF FEBUARY, 2013 SUIT No: SC. 107/2010 IBRAHIM TANKO MUHAMMAD    JSC JOHN AFOLABI FABIYI    JSC            OLUKAYODE ARIWOOLA    JSC MUSA DATTIJO MUHAMMAD    JSC                KUMAI BAYANG AKAAHS     JUSTICE, SUPREME COURT (JSC) BETWEEN THE NIGERIAN ARMY  –  APPELLANT    […]

IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY, THE 22ND DAY OF FEBUARY, 2013
SUIT No: SC. 107/2010
IBRAHIM TANKO MUHAMMAD    JSC
JOHN AFOLABI FABIYI    JSC           
OLUKAYODE ARIWOOLA    JSC
MUSA DATTIJO MUHAMMAD    JSC               
KUMAI BAYANG AKAAHS     JUSTICE, SUPREME COURT (JSC)
BETWEEN
THE NIGERIAN ARMY  –  APPELLANT   
    AND
WARRANT OFFICER BANNI YAKUBU  –  RESPONDENT   
       
JUDGMENT
(Delivered by J.A. FABIYI, JSC)

This is an appeal against the ruling of the Court of Appeal, Abuja Division (the court below) delivered on the 9th day of February, 2010 in Appeal No. CA/A/66/M/09. Therein, the court below granted extension of time within which to apply for leave to the respondent to appeal against the decision of the trial General Court Martial (‘GCM’ for short) presided over by Col. O. O. Okoro (N/7710) at DHQ Joint Officers Mess Mogadishu Cantonment, Asokoro, Abuja delivered on 20/12/07 after overruling preliminary objection on two grounds strenuously urged on behalf of the appellant.
The relevant facts of the matter leading to this appeal are not in serious contention. The respondent was convicted by the G.C.M presided over by Col. O. O. Okoro (N/7710) on 20/12/07 along with one Warrant Officer Peter Weibey for conspiracy. The verdict of the G.C.M was confirmed on 9/8/2008 and same was published on 13/8/2008. The respondent instructed his solicitors to write letter of appeal to the appellant for a review of his case. There was no response to same.
The respondent then approached the lower court by way of motion on notice pursuant to Order 7, Rule 10 (1) and (2) of the Court of Appeal Rules 2007 wherein he prayed for extension of time within which to apply for leave to appeal against the decision of the G.C.M, leave to appeal and extension of time within which to appeal; often referred to as ‘the trinity prayers.’
The appellant raised preliminary objection to the application on two grounds that the respondent had not complied with the condition precedent before approaching the lower court and that the respondent’s action was statute barred by virtue of the provision of section 2 (a) of the Public Officers Protection Act.
The court below considered the materials placed before it and the submission of counsel on the laws seriously canvassed and dismissed the appellant’s preliminary objection. The court below thereafter granted the requisite leave to the respondent to appeal against the decision of the G.C.M which found the respondent guilty of conspiracy. The appellant felt dissatisfied with the said Ruling of the court below and has appealed to this court. The Notice of Appeal filed on 23/2/2010 contains two grounds of appeal.
The lone issue couched of the appellant’s brief of argument for determination of the appeal reads as follows:-
“Whether the Court of Appeal correctly evaluated (sic) the law when it ruled that the appeal was properly before their lordships, and consequently dismissed the preliminary objection.”
Let me state it in clear terms that by the provision of section 240 of the 1999 Constitution of the Federal Republic of Nigeria, the court below is given exclusive appellate jurisdiction over decisions of the G.C.M. Such jurisdiction is not subject to the whims of any other quasi-judicial body or outfit. The appellant should appreciate this vital point right from the onset.
The appellant’s counsel strenuously maintained in the brief of argument that the respondent failed to comply with condition precedent before initiating his application for leave to appeal. He relied on sections 179 (4) and 184 (5) of the Armed Forces Act, inter alia.
Let me now move to the real matter in contention between the parties. The respondent maintained that there are good reasons for his failure to appeal within time and that there are substantial points of law to be canvassed at the hearing before the lower court.
It must be stated here that Order 7 Rule 10 (2) of the Court of Appeal Rules 2007 provides for two conditions which must be satisfied conjunctively. The affidavit evidence must disclose good and substantial reasons for failure to appeal or seek leave to appeal within the prescribed time. The proposed grounds of appeal must show good cause why the appeal should be heard. The grounds must be arguable; not frivolous. See: University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; Holman Bros Nig. Ltd. v. Kigo Nig. Ltd. (1980) 8-11 SC. 43.
In the case of Central Bank of Nigeria v. Salihu H’ Ahmed & Ors. (2001) 5 SC (Pt. 11) 146 at 162; cited by respondent’s counsel in the brief, this court emphatically maintained that:-
“It must be remembered that before an application of this kind could succeed, the applicant must satisfy the court that there are good and satisfactory reasons for not filing his application timorously. It must also be shown that the applicant has good, substantial and arguable grounds of appeal. It is settled that for this court to exercise its discretionary power, an application of this sort must be supported by an affidavit which must give sufficient reasons to explain the delay, the judgment or ruling of the court below against which he is seeking to appeal and proposed grounds of appeal against the said judgment or ruling.”
The respondent deposed to the fact that he was not informed of the decision of the Army Authority which confirmed his sentence for the offence of conspiracy and his demotion in rank. He was informed later by his co-accused. The grounds of appeal in the proposed grounds of appeal appear, prima facie, arguable. There is ground 4 which complains that the Army Authority, contrary to the finding of the G.C.M went ahead to enter a finding of ‘Guilty’ on the respondent for making false document, punishable under section 90 (d) of AFA Cap. A20 LFN, 2004. To my mind, this is an arguable point.
The court below, resolved issue 1 decoded by the respondent in his favour. I pitch my tent with the court below as it was on a firm stand.
The next point relates to the applicability of the provision of section 2 (a) of the Public Officers Protection Act. The appellant maintained that same applied to foreclose the right of the respondent to approach the lower court for leave to appeal. On his part, learned counsel for the respondent maintained that the law cannot be employed to gag him from exercising his constitutional right of appeal to the court below.
As stated by learned counsel for the respondent, it is basic that courts do guard their jurisdiction jealously and zealously. As such, any enactment which takes away the rights of the citizen accessing the court are to be construed narrowly against any one claiming its benefit.
The appellant who is trying to cling tenaciously to the law put obstacles on the respondent’s way by failing to react to his complaint in good time. He was subjected to trauma and he fell sick as contained in his affidavit and further affidavit. This court has held in Abacha v. Spiff (2009) 5 SCNJ 119 at 140 that where a party is prevented from bringing an action or denied the opportunity to sue timorously, limitation law will not apply. The position in the case at hand points to the same direction.
Further, the position here is that the respondent desires to enforce his fundamental right of access to the law court to determine his innocence in the conviction meted out to him by the G.C.M. The right, is as dictated by section 240 of the 1999 Constitution of the Federal Republic of Nigeria. It is unthinkable to imagine that the provision of section 2 (a) of the Public Officers Protection Law can be employed to truncate the respondent’s opportunity to ventilate his grievances to the decision of the G.C.M.
The remedy sought is to enforce a constitutional right contravened by a court acting judicially. The time within which to seek that remedy is not subject to the time limit prescribed by the Public Officers Protection Act. There is no reason why it should. If it did, it will likely conflict with court rules—-”

The above remains the stance of this court. I completely agree with same. And by parity of reasoning, there is no way by which the decision of the G.C.M can be covered from being challenged as constitutionally guaranteed by Section 240 of the stated constitution under the feigned canopy of the provision of Section 2 (a) of the Public Officers Protection Act.
In conclusion, I am of the considered opinion that viewed from any angle; this appeal is bound to fail. It lacks merit and, it is hereby dismissed. The ruling of the court below handed out on 9th February, 2010 is hereby affirmed in its entirety.