Nigeria: Has The Supreme Court Created A New Exception To The Application Of Section 2(A) Of The Public Officers' Protection Act? – Abdulkabir Badmos

Dispute Resolution

17^th June 2020

Abdulkabir Badmos¹

HAS THE SUPREME COURT CREATED A NEW EXCEPTION TO THE  APPLICATION OF SECTION 2(A) OF THE PUBLIC OFFICERS' PROTECTION ACT?

Introduction

In most cases instituted against a Public Officer, under Nigeria's dispute resolution system, it is not uncommon to find a Defendant raising either by way of preliminary objection or outright defence to a claim that the cause of action has become statute barred by virtue of the provisions of Section 2(a) of the Public Officers' Protection Act (POPA).² The section provides that for any action brought against a public officer to be valid, it must be instituted in a competent court of law within a period of three (3) months from the accrual of the cause of action. This article seeks to highlight some of the exceptions to this rule that has been judicially recognized overtime including the most recent Supreme Court pronouncement that has seemingly added a new exception.

The Content and Effect of Section 2 (A) of The POPA

Section 2(a) of the Public Officers' Protection Act³ provides as follows:

"Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect. (a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof."

The operation of this section has been interpreted in a plethora of judicial authorities to the effect that it excludes a Plaintiff from bringing an action that would have otherwise been valid save that it is not instituted within a period of three (3) months from the accrual of the cause of action or the ceasing of the damage or injury constituting the complaint.

A "cause of action" according to Obaseki JSC in THOMAS v. OLUFOSOYE,⁴ is the factual situation, the existence of which entitles one to obtain from the Court a remedy against another person. In other words, a cause of action means the fact (not evidence) that will be necessary for the plaintiff to prove for him to be entitled to judgment, if not traversed by the Defendant.⁵

By virtue of Section 2(a) of the POPA therefore, a Plaintiff is "robbed" of the right to institute an action against any person that falls within the definition of "public officer" according to law, unless its provisions are satisfied. The essence of this provision, as held by the courts, is to give full protection or cover to all Public Officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty.⁶ It is also worthy of note that a "public officer" has been interpreted to include artificial persons in law⁷ or an agency of government, e.g., the Central Bank of Nigeria.⁸ For a public officer to enjoy this protection however, two conditions must co-exist as stated in the case of HASSAN v. ALIYU & ORS,⁹ where the Supreme Court held as follows:

"The two conditions which must exist before a person can avail himself of the protection provided by Section 2 of the Public Officers Protection Act are – (1) The person must be a public officer. (2) The act done by the person in respect of which the action was commenced was an act done in pursuance or execution or intended execution of a law or public duty or authority."

It is therefore settled law that in appropriate cases, where a public officer does an act that is actionable at the instance of the Plaintiff, but such Plaintiff fails to file his suit within a period of three (3) months from the date the act/omission was committed or he becomes aware of the act/omission in cases of concealment or fraud), his action becomes statute barred. In other words, his right may still be valid, but he is without a remedy at law.

Previously Established Exceptions to This Rule

Overtime, the Supreme Court has affirmed and stated many statutory and equitable exceptions to this rule in appropriate cases to ensure that justice is done. With these exceptions, a plaintiff's right of action against a public officer has been held to remain valid and enforceable despite the expiry of the three (3) months limitation period. The exceptions are discussed below, albeit in brief.

A plaintiff's right of action will not be extinguished when not brought within the limitation period for the purpose of the POPA where the subject of litigation is a breach of contract or recovery of debt. Thus, where it is discernable from the statement of claim that the cause of action is upon a breach of contract, this special defence under the POPA will not be available to the defendant. In the case of ROE LTD v. UNN,¹⁰ the Supreme Court reiterated the principle and held as follows:"...I entirely agree with learned counsel for the Appellant that the Public Officers Protection Act does not apply to cases of breach of contract for work done or recovery of debt."¹¹

Second, the limitation period under the POPA will not apply where the claim is for recovery of land. In the case of MULIMA v. USMAN,¹² it was held that:"Section 2 (a) of the Public Officers Protection Act does not apply in cases of recovery of land." Similarly, in A. G. RIVERS STATE v. A. G., BAYELSA STATE,¹³ the same Supreme Court held: "The protection afforded public officers under the Public Officers (Protection) Act does not apply in cases of recovery of land..."

Thirdly, for a public officer to enjoy the protection offered under the POPA, such officer must have acted in good faith and with legal justification. The underpinning philosophy of this exception is to make public officers accountable. In the case of SULE & ORS v. ORISAJIMI,¹⁴ the Supreme Court stated the principle poignantly as follows:

"On the issue of Section 2 (a) of the Public Officers' Protection Act, I'm in agreement with the Court below. The law is now settled that Section 2 (a) of the Public Officers Protection Act had been enunciated by the Supreme Court in the case of NWANKWERE VS ADEWUNMI (Supra), per Bret JSC thus: "The law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification." See also LAGOS CITY COUNCIL (TRADING UNDER THE NAME OF LAGOS CITY TRANSPORT) VS & S.S.J. OGUNBIYI (1969) All NLR 287 at 289. Clearly, the Appellants acted in abuse of office and cannot benefit from the protection of Section 2 (a) of the Public Officers Protection Act."¹⁵

Finally, the limitation period under the POPA will not apply where there is fraudulent concealment, collusion or deceit on the part of the defendant. Put differently, the cause of action will not be deemed to have accrued until the Plaintiff has knowledge of the breach. In the case of SALAHUDEEN & ORS v. AJIBOLA & ORS,¹⁶ the Court of Appeal held as follows:

"The fulcrum of the appellant's contention is straightforward. It is whether there are exceptions to the application of the Public officers Protection Act with regards to knowledge. My simple answer is to agree with the lower Court, having held that: "I therefore agree with the submission of counsel for the respondent that the cause of action in this case had not accrued until they became aware of the appointment of the 1^st defendant/applicant as Onigbin of Oke-Onigbin which was alleged not to be published equally there was an allegation of fraud, concealment, deceit and connivance pleaded in this case." The case of A.G Rivers State vs. A. G Bayelsa State & Anor (2012) LPELR – 9336 (SC) gives some of the exceptions to the Act. See also Hassan vs. Borno State Govt. (2016) LPELR – 40250 (CA), Hon Minister of the FCT vs. J. Alucon Ltd (2017) LPELR – 42870(CA)"

In all of the cases cited above, the courts held that the provisions of section 2 (a) of the POPA did not apply under the various circumstances and pronounced that the claims of the various plaintiffs were not statute-barred.

Was A New Exception Created in the Recent Case of CIL Risk & Asset Management Ltd v. Ekiti State Govt & Ors?

The case of CIL RISK & ASSET MANAGEMENT LTD v. EKITI STATE GOVT & ORS¹⁷ was decided by the Nigerian Supreme Court on the 13^th day of March 2020. The brief facts of the case are as follows:

The Appellant as Plaintiff at the trial court was allocated a parcel of land in the year 2007 via a Certificate of Occupancy. By an official gazette of October 2016 and a subsequent publication in the newspapers in November 2016, the Ekiti State Government had published the purported revocation of the Appellant's right of occupancy. The revocation, as alleged by the Defendants, was as a result of the failure of the Appellant to pay ground rents and develop the land within two years of grant, as contractually agreed between the parties. The Appellant on the other hand, alleged that the revocation was done in bad faith as a result of its inconclusive agreement to sell the land to its neighbor, Afe Babalola University – the 4^th Defendant, to whom a subsequent allocation was made by Ekiti State Government.

The Appellant therefore being aggrieved approached the Ekiti State High court for redress. The 1^st – 3^rd Defendants as well as the 4^th Defendant, without filing a defence to the action, filed separate notices of preliminary objection to the suit on the grounds that the failure of the Plaintiff to institute its action within three (3) months as provided for under the Public Officers' Protection Act has rendered same statute-barred and unenforceable. The trial High Court upheld the preliminary objections and that decision was affirmed by the Court of Appeal. On further appeal to the Supreme Court, the decisions of two lower courts were set aside, and the matter was restored to the cause list of the Ekiti state High Court for retrial before a different Judge.

It is worthy of note that this Supreme Court decision is hinged on the fact that Public Officers Protection Act does not cover "public officers" in the employ of state governments. Ejembi-Eko JSC, who delivered the lead judgment held as follows:

"The Respondents appear to me to have taken shelter under Section 2 (a) of the Public Officers Protection Act, Cap P41, 2004 LFN (updated up to the 31^st day of December, 2010). This Act enacted pursuant to Item 53 of the Exclusive Legislative List and Section 4(2) & (3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, applies only to protect public officers in the "public service of the Federation". It has no general application such as to apply or offer protection to public officers in the service of Ekiti State or any other State in the Federal Republic of Nigeria. The public Service of Ekiti State is a matter within the residual list that is matter neither in the Exclusive Legislative List set out in Part l of the Second Schedule to the Constitution nor in the Concurrent Legislative List set out in the First Column of the Second Schedule to the Constitution. The public service of Ekiti State, being a residual matter, only the Ekiti State House of Assembly, by dint of Section 4(6) & (7) of the Constitution,1999, as amended, to the exclusion of the National Assembly or any other State House of Assembly, can constitutionally legislate on it. This basic Constitutional Law eluded the Respondents and the two Courts below. The resort to the Federal statute, the Public officers Protection Act, to scrounge a statutory defence for officers in Ekiti State public service is no doubt ultra vires."¹⁸

The above dictum of the learned jurist above puts it beyond any iota of doubt that the Public Officers Protection Act does not cover acts of officers of the various state governments in Nigeria. It is the writer's view that this decision has not essentially created a new exception to the applicability of the POPA rather, it has delimitated the constitutional legislative roles of each tier of government. Although the jurist did not cite any previous judicial pronouncement of the same court in holding as he did, it is submitted that he is not bound by law to do so. The inherent jurisdiction of the Supreme Court, in any case, allows the apex court to overrule its previous decision where it believes it is in the interest of justice to so do.¹⁹ Besides, it seems the apex court was deciding this kind of constitutional angle for the first time.

Thus, the seemingly new exception created in this case is not new in this sense and essentially not peculiar to the POPA. The rule, as established by the court, will apply to all items in the residual list, which only the State Houses of Assembly to the exclusion of the National Assembly can competently legislate upon.²⁰

As a corollary to the above, from the decision under review, a crucial question that comes to mind is whether the holding would have been different if the Defendants, for instance, had relied on a Public Officers' Protection Law of Ekiti State? The importance of this poser is further underscored by the fact that the same Supreme Court, in a previous matter, had interpreted the Public Protection Law of Ekiti State to be inapplicable where a public officer has acted outside the scope of his authority.²¹ Either by design or a stroke of coincidence, it was the same learned jurist, Ejembi-Eko, J.S.C that gave the lead decision in both cases, so he most respectfully, is/ought to be aware of that law.

The follow-up question to the above submission would be, should the Supreme Court deprive a party of a defence/relief simply because the relief is being sought under a wrong law or even no law at all? It is a notorious principle of law that a court would not turn its face from a claim or relief merely because the party seeking it cited the wrong law, in so far as that relief exists in a law in force.²²

The writer is therefore respectfully of the opinion that since the Supreme had earlier applied the provisions of the Public Officers Protection Law of Ekiti State in the Awolola's case,²³ the Respondents needed not to have expressly relied on same to have it applied by the Court. This is the only way to ensure consistency on the principles of stare decisis.

Conclusion

It is therefore desirable that when the Supreme Court has more than one occasion to pronounce on a principle of law or interpretation of statutes, it remains consistent in its methodology and approach. Although it is acknowledged that each case is to be decided on its peculiar facts, the goal is always still justice according to law. The "new exception" seemingly created in the CIL RISK & ASSET MANAGEMENT's case is respectfully no new exception and that conclusion would not have been reached if the Court considered the provisions of the Public Officers' Protection Law of Ekiti state.

Footnotes

1 Abdulkabir Badmos, Associate Dispute Resolution Department, SPA Ajibade & Co., Lagos, NIGERIA.

2 Cap P41 L.F.N. 2004 (as updated up to 31^st December, 2010).

4 (1986) 1 NWLR (Pt. 18) 669.

5 See also AFOLAYAN v. OGUNRINDE & Ors. {1990) 2 SCNJ 62 at 70.

6 CBN & ANOR v. MICHAEL (2018) LPELR 44251 (CA) Per EKANEM, J.C.A (pp. 11-12, para. D).

7 IBRAHIM v. JSC, KADUNA STATE & ANOR (1998) 14 NWLR (PT. 584) 1 at 35 per IGUH, JSC.

8 WULANGS v. CBN (2019) LPELR 48085 (CA) Per IGE, J.C.A (pp. 37-52, paras. C-D).

9 (2010) LPELR 1357 (SC) Per ADEKEYE, J.S.C (p. 84, paras. B-D).

10 (2018) LPELR – 43855(SC).

11  See also FUTO v. AMCON & ORS (2019) 47327 (CA) Per OBASEKI-ADEJUMO, J.C.A (pp. 31-33, paras. F-A).

12 (2014) 16 NWLR (Pt.1432) 160 at 212, paras. C – E.

13 (2013) 3 NWLR (Pt.1340) 123 at 150.

14 (2019) LPELR 470 (SC) Per BAGE, J.S.C (p. 9, paras. A-E).

15 See also AWOLOLA v. GOVERNOR OF EKITI STATE & ORS (2018) LPELR 46346 (SC) Per EKO, J.S.C (pp. 47-50, paras. B-E).

16 (2019) LPELR 47412 (CA) Per BARKA, J.C.A (pp. 37-38, paras. D-C).

17 (2020) LPELR 49565 (SC).

18 EJEMBI EKO, J.S.C (pp. 5-6, paras. C-D).

19 Jev. v. Irtom (2015) 15 NWLR (Pt. 1483) 484 at 503-504, paras F-D.

20 Section 4 (6) & (7) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

21 AWOLOLA v. GOVERNOR OF EKITI STATE & ORS (2018) LPELR 46346 (SC) Per EKO, J.S.C (pp. 47-50, paras. B-E).

22 FORESTRY RESEARCH INSTITUTE OF NIGERIA v. GOLD (2007) LPELR 1287 (SC) Per ONNOGHEN, J.S.C (p. 28, paras. B-C).

23 Supra, n. 21.

Originally published June 17, 2020.

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