Alhaji Aliyu Ibrahim V. Judicial Service Committee, Kaduna State & Anor. (1998)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

The proceedings leading to this appeal were first initiated in the High Court of Justice of Kaduna State of the Federal Republic of Nigeria. holden at Kaduna on the 28th day of April, 1986. In that court, the appellant, as plaintiff, claimed against the respondents, then defendants, by way of an originating summons as follows:-

“1. A declaration that the purported retirement of the plaintiff as an Upper Area Court Judge in Kaduna State by the first defendant is invalid, null and void and of no effect.

2. A declaration that the retirement of the plaintiff as conveyed by the 1st defendant’s letter reference No. S. CAC/549/72 of 8th February, 1985 in so far as it purports to be in accordance with the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984 is illegal, null and void and of no effect.
3. An order restoring the plaintiff to his office and duty as an Upper Area Judge and to continue to so function until he reaches the retirement age or he elects to retire.
4. An order on the defendants to pay the plaintiff general damages in the sum of N50,000.00only.”

The originating summons was supported by an affidavit in which the plaintiff deposed that he was at all material times an Upper Area Court Judge at Kankia in Kaduna State and that he discharged his duties creditably and 10 the best of his ability. By a letter reference No. S. CAC/549/72 of the 8th February, 1985, the 1st defendant acting pursuant to the provisions of the Public Officers (Special Provisions) Decree No. 17of 1984 retired the plaintiff from the services of the Kaduna State judiciary with effect from the 8th day of February, 1985. The said letter reads as follows:-

“No. S. CAC/549/72,

Judicial Service Committee,

High Court of Justice,

Kaduna State,

Kaduna.

8th February. 1985.

Alhaji Aliyu Abba Ibrahim,

Upper Area Court Judge,

Upper Area Court,

Kankia.

LETTER OF TERMINATION OF APPOINTMENT/DISMISSAL/RETIREMENT

The Judicial Service Committee, Kaduna State, at its meetings held on 5th and 7th February, 1985 decided to dismiss/retire/terminate your appointment with effect from the date of this letter and this is to notify you of your dismissal/retirement/termination.

2. This exercise was undertaken by virtue of the provisions of Decree No. 17, Public Officers (Special Provisions) Decree, 1984.

(Sgd) J. B. Onoba

Secretary.”

It is as a result of this compulsory retirement that the plaintiff was obliged to institute the present action against the defendants jointly and severally as aforesaid.

On the 17th July, 1986, the defendants filed a formal notice of preliminary objection founded on the provisions of sections 1(2)(b)(i), 3(3) and 3(3) of Decrees Nos. 13, 16 and 17 of 1984 respectively urging the trial court to declare the suit incompetent and to strike it out accordingly.

After hearing arguments on the objection, the leaned trial Judge in a reserved ruling delivered on the 28th July, 1986 upheld the same and dismissed the plaintiff’s action. The plaintiff, being dissatisfied with this decision, lodged an appeal to the Court of Appeal, Kaduna Division, which court on the 5th day of March, 1987 allowed the appeal, set aside the decision of the learned trial Judge and remitted the suit to the High Court of Kaduna State for hearing and determination before another Judge.

On the 10th November, 1987, the defendants filed another notice of preliminary objection to the plaintiff’s action. This time, the contention of the defendants was that by virtue of section 2(a) of the Pubic Officer (Protection) Law, Cap. 111 Vol. 3, Laws of Northern Nigeria, 1963, applicable to Kaduna State, the action instituted by the plaintiff was statute-barred, in that it was not commenced within three months next after the act complained of, and to that extent, the suit, as filed, was incompetent and should be dismissed.

The substance of the defendants’ objection was that the cause of action, namely, the plaintiff’s letter of retirement, was dated the 8th February, 1985 but that the originating summons was not filed until the 28th April, 1986. The submission was that by virtue of the provisions of section 2(a) of the Public Officers (Protection) Law, 1963, the plaintiff’s action was statute-barred as it was instituted outside the three months period prescribed by law.

The plaintiff, in reply, argued that the Law refers to Public Officers (Protection) Law and not Public Offices (Protection) Law. It was further submitted on his behalf that the intendment of the Law is to protect natural persons occupying public office or offices and carrying out public duties. He contended that public officers, to avail themselves of the protection laid down by that Law, must be sued in their individual or personal names. According to the plaintiff, the defendants were not sued in the individual names of the persons concerned but by their designated offices and could not therefore benefit from the protection afforded by the Public Officers (Protection) Law, 1963.

At the conclusion of arguments, the learned trial Judge, Akaahs, J. in a well considered ruling on the 4th day of December, 1987 upheld the defendants’ objection and dismissed the plaintiff’s suit as statute-barred. The plaintiff being aggrieved by this decision filed a notice of appeal to the Court of Appeal, Kaduna Division. The Court of Appeal, at the conclusion of hearing on the 3rd day of May, 1989, unanimously dismissed the plaintiff’s appeal and affirmed the decision of the trial court. Being dissatisfied with this decision of the Court of Appeal, the plaintiff has further appealed to this court. I shall hereinafter refer to the plaintiff and the defendants in this judgment as the appellant and the respondents respectively.

Pursuant to the rules of this court, the appellant, through his learned counsel, settled and filed his brief of argument on the 31st day of August, 1990. The respondents also duly tiled their joint brief of argument on the 30th day of September, 1998 after obtaining the leave of this court to file it out of time.

In the appellant’s brief of argument, the following two issues are identified as arising for determination in this appeal, namely:

“1. Whether the respondents in this matter i.e. the Judicial Service Committee of Kaduna State and the Attorney-General of Kaduna State, howsoever defined, fall within the contemplation of the protection afforded public officers by ti,e Public Officers (Protection) Law, Cap. III. Laws of Northern Nigeria, 1963 as applicable to Kaduna State

2. Whether it is proper for the Court of Appeal to decide on an important issue raised by it suo motu without inviting the parties or their counsel to address the court on same particularly when that issue had in an earlier decision between the parties been finally determined by the Court of Appeal”

The respondents, for their own part, submitted no issues in their brief of argument as arising in this appeal for the determination of the court. What they would appear to have done is to advance their arguments on the appellant’s grounds of appeal. a procedure which has been condemned repeatedly by this court since the introduction of brief writing several years ago. The respondents’ brief in this regard may therefore be described as defective and faulty. One may not, however, close his eyes to the fact of its existence, particularly as it attempted as much as possible 10 cover the two issues raised by the appellant in his brief. See Philip Obiora v. Paul Osele (1989) 1 NWLR (Pt.97) 279 at 300; Akpan v. The State (1992) 6 NWLR (Pt.248) 439. I am therefore prepared to take it that the respondents by their failure to submit their own issues for resolution have adopted those formulated by the appellant for the determination of this appeal. See Ajibade v. Pedro (1992) 5 NWLR (Pt.241) 257 at 267. I shall, therefore, adopt in this judgment, the questions identified in the appellant’s brief for my consideration of [his appeal.

At the oral hearing of the appeal before us, both learned counsel for the parties adopted their respective briefs of argument and proffered additional submissions in amplification thereof.

The main contention of learned counsel for the appellant, K. Awodein, Esq., is that both respondents were not natural persons sued in their personal names and that they are therefore not covered by the said provisions of section 2(a) of the Public Officers (Protection) Law. 1963. He explained that the 1st respondent, the Judicial Service Committee, Kaduna State is not a natural person or a human being but an amorphous body and that no single officer of that Committee was sued as an individual. In the same vein, he further argued that the 2nd respondent, the Attorney-General, Kaduna State, who was also not sued in his personal name as an individual but by his official title cannot take cover under that Law.

Briefly put, the essence of the submission of learned counsel for the appellant, as far as I can see it, is that the Public Officers (Protection) Law, Cap. III, Vol. 3. Laws of Northern Nigeria, 1963, applicable to Kaduna State only applies to individuals and natural persons but not either to artificial persons, such as public and corporate bodies, or to public officers sued by their official titles, such as a Federal or ,State Attorney-General. a Minister or a Permanent Secretary of a Government Ministry. For this proposition, learned counsel relied on the decision of this court in Rufus Momoh v. Okewofe and Another(1977) 11 NSCC 365 at 368-369 and to those of the Court of Appeal in Alapiki v. The Governor of Rivers State and Another (1991) 8 NWLR (Pt.211) 575 at 588 DF; Judicial Service Commission v. Alaka (1982) CA 42; Tafida v. Abubakar and others (1992) 3 NWLR (Pt.230) 511 at 522 H and 523 A-G, and Utih v. Egorr (1990) 5 NWLR (Pt.153) 771. He submitted that the Court of Appeal could not be right in the present case when it held that the 1st and 2nd respondents were entitled to protection under the relevant law. He submitted that in-as-much as the words “any person” in the English Public Authorities Protection Act 1893 were interpreted to be limited only to the protection of public authorities under that law, mutatis mutandis the Nigerian Public Officers (Protection) Law was aimed at protecting public officers as individuals only and no more than that. Learned counsel felt obliged to draw the attention of the court to the decision of this court in Permanent Secretary, Ministry of Works, Kwara State and Another v. Balogun (1975) NSCC 292 and to the decisions of the Court of Appeal in Atiyaye v. Permanent Secretary, Ministry of Local Government, Borno State and Attorney-General, Borno State (1990) 1 NWLR (Pt.129) 728 and Hassan Amao v. Civil Service Commission and 2 others (1992) 7 NWLR (Pt.252) 214, all of which do not appear to support his contention. He invited the court to prefer the line of reasoning in the Alapiki v. Governor of Rivers State and another and Tafida v. Abubakar and others cases to that in the Atiyaye v. Permanent Secretary, Ministry of Local Governent. Borno State case. He was of the opinion that the Court of Appeal in the first set of cases was in order to have applied what he described as the latter decision in Momoh v. Okewale than that in the earlier case of Permanent Secretary, Ministry of Works, Kwara State and another v. Balogun.

On the second issue, it is the complaint of the appellant that the court below was in gross error when it raised suo motu the question of whether or not the trial court had jurisdiction to entertain the appellant’s claims, having regard to the provisions of section 3(3) of the Public Officers (Special Provisions) Decree No. 17 of 1984 which oust the jurisdiction of the trial court to entertain the appellant’s action. The appellant contended that this issue was not before the court below and that the Court of Appeal was therefore wrong to have raised the matter suo motu and to have proceeded to rule against the appellant without affording the parties opportunity to be heard thereupon. He urged the court to resolve both issues in favour of the appellant.

Learned counsel for the respondents, Mr. M. B. Wakili, in his own reply, pointed out that there was apparent misconception in the submissions of the appellant in respect of the first issue. He argued that both the 1st and 2nd respondents, the Judicial Service Committee and the Attorney-General. Kaduna State respectively are both legal personae, that is to say, legal persons or legal entities, capable of suing or being sued under our law. He contended that the words “any person” contained in section 2 of the Public Officers (Protection) Law of Northern Nigeria connote nothing other than their plain, ordinary and natural meaning and include any person or persons against whom any action is commenced for any act done in pursuance of any Law, public duty or authority. Learned counsel submitted that both respondents being “persons” sued in the discharge of their official duties are covered by the relevant Law. He contended that any limitation placed on the words “any person” in the Nigerian Public Officers (Protection) Law cannot be justified and must be regarded as unacceptable in the face of the clear provisions of that Law.

Learned counsel submitted that the Public Officers (Protection) Law of Northern Nigeria is intended to be broader in operation and covers a wider class of persons than the United Kingdom Public Authorities Protection Act. 1893. He explained that this is because although the words ;’any person” could include an authority or an artificial person, an authority or artificial person does not necessarily include a natural person. He argued that the Attorney-General is, without doubt, a public officer together with the Judicial Service Committee which a body of public officers and that both respondents are fully covered by section 2 of the Public Officers (Protection) Law of Northern Nigeria. He cited, in support. The decision of this court in Permanent Secretary). Ministry of Works, Kwara State and another v. Balogun (supra) and he urged the court to resolve issue 1 in favour of the respondents.

Turning to issue 2, learned counsel conceded that the complaint of the appellant was well founded as the court below waded into a matter that was neither an issue before it nor was it canvassed by the parties. He, however, argued that no miscarriage of justice was thereby occasioned as. at all events, the appellant’s action was caught by section 2 of the Public Officers (Protection) Law, 1963 and was therefore liable to fail. He urged the court to dismiss the appeal.

I have carefully considered all the relevant authorities of both this court and the Court of Appeal on the interpretation of this section of the Law in issue. Only three decided cases of this court came into focus. These are the decisions in Rufus Momoh v. Afolabi Okewale and all other (1977) NSCC 365 relied upon by the appellant and Permanent Secretary, Ministry of Works, Kwara State and Another v. Balogun (19750 NSCC 292 which constituted the main plank upon which the respondents’ arguments rested. There is also the decision in Adigun v. Ayinde (1993) 8 NWLR (Pt.313) 516 at 533.

As against the above two decided cases of this court is an array of conflicting decisions of various divisions of the Court of Appeal on the subject. The first set of cases considered an observation of Udoma, J.S.C. in the Okewale case as binding on the court. I will later in this judgment deal with the observation in issue. It suffices to state at this stage that as a result of the said observation, the Court of Appeal, in the first set of cases, interpreted the Law in issue as applying only to human beings sued in their personal names. It accordingly held that in as much as the words “any person” in the English Public Authorities Protection Act, 1893 were interpreted in the United Kingdom to be limited only to the protection of “public authorities” under that Act, the Nigerian Public Officers (Protection) Law was aimed at the protection of a public officers” sued in their personal names, that is to say, the protection only of natural persons as against artificial persons public bodies or persons sued by their official title.

The second set of these decisions of the Court of Appeal is of the view that the said observation of Udoma, J.S.C. is a mere obiter dictum and not the ratio decidendi in the case. This school of thought relied on the earlier decision of this court in the Balogun case and came to (he conclusion that the words “any person” in our Public Officers (Protection) Law covered all persons, whether sued as individuals in their personal names, or as artificial persons, bodies or by their official title, so long as the act for which they are sued was done in the execution of any law, or of any public duty or authority.

I have given a most careful consideration to the observation of my learned brother, Udoma, J.S.C. in the Okewale case and, with profound respect, find it difficult in the first place to accept that it forms any pan of the ratio decidendi in that case. In my view, it is, at best, an obiter dictum.

A careful study of the decision of this court in the Balogun case clearly shows that it is to the effect that the provisions of the Public Officers (Protection) Law, 1963 covered and were available to the 1st respondent therein, namely the Permanent Secretary, Ministry of Works. Kwara Stale, a person sued by his official title and not in his persona/name. The point decided in that case is plain, direct and relevant to the issue that has arisen for consideration in this appeal. I think that the Court of Appeal in the second set of cases rightly felt bound by the decision in the Balogun case. The issues for decision in the present appeal are, however, much wider in scope than those pronounced upon in the Balogun case. I therefore, propose to proceed with a consideration of the various issues that call for decision in this appeal. I will later in this judgment return to a fuller consideration of the conflicting decisions of the Court of Appeal that were relied upon by the parties in this appeal.

Section 2(a) of the Public Officers (Protection) Law, Cap. 111, Vol. 3, Laws of Northern Nigeria, 1963 around which this appeal revolves provides as follows:-

“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such 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:

….”(Italics supplied for emphasis).

It is mainly the interpretation of the above section of the Law, short and plain as it seems to be, that calls for decision in this appeal.

The Public Officers (Protection) Law, as its head note indicates s a Law:-

“to provide for the protection against actions of persons acting in the execution of public duties.”

It is a limitation law and the substance of section 2(a) is that where any action, prosecution or proceeding is commenced against any person, for any act done in pursuance or execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act, neglect or default complained of, or, in the case of a continuance of damage or injury, within three months next after the ceasing thereof. There is a proviso to section 2(a) of this enactment. With this proviso, this appeal is not now concerned. It suffices to state that a statute of limitation, such as the Public Officers (Protection) Law, Cap. 111, Vol. 3, Laws of Northern Nigeria, 1963 removes the right of action, the right of enforcement, and the right to judicial relief in a plaintiff and this leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute barred, that is to say, if such a cause of action is instituted outside the three months statutory period allowed by such Law.

The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. See Michael Obiefuna v. Alexander Okoye (961) 1 All NLR 357; Fred Egbe v. Adefarasin (No.2) (1985) 1 NWLR (Pt.3) 549; Fadare v. Attorney-General, Oyo State (1982) NSCC 643.

However, for section 2(a) of the Public Officers (Protection) Law to avail any person, two conditions must be satisfied, namely:

(i) it must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that Law;

(ii) the act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any Law, public duty or authority or in respect of an alleged neglect or default in the execution of any such Law, duty or authority.

See John Ekeogu v. Elizabeth Aliri (1990) 1 NWLR (Pt. 126) 345. It can therefore be said that section 2(a) of the Public Officers (Protection) Law, 1963 gives 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. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose protection of that Law. In other words, a public officer can be sued outside the limitation period of three months if at all times material to the commission of the act complained of, he was acting outside the colour of his office or outside his statutory or constitutional duty. Where, however, he acted within the colour of his office, he can only lose protection of the limitation law if he is sued within three months of the act, neglect or default complained of. See Nwankwere v. Adewunmi (1967) NMLR 45 at 49; Atiyaye v. Permanent Secretary, Ministry of Local Government, Borno State (1990) 1 NWLR (Pt. 129) 728; John Ekeogu v. Elizabeth Aliri (supra) etc.

I think I ought to state at this stage that no issue has arisen in this case as to whether or not the action against the respondents was against them as a result of an act done in pursuance or execution of any Act or Law or of any public duty or authority. The action which the appellant is challenging is his purported retirement from the judicial service of Kaduna State by the 1st respondent through its letter No. S. CAC/549/72 of the 8th February, 1985. The 1st respondent which was established by section 178(1)(d) of the Constitution of the Federal Republic of Nigeria, 1979 (as amended) was inter alia conferred with powers under section 9(d), Part II of the Third Schedule to the said Constitution –

“to appoint, dismiss and exercise disciplinary control over … magistrates, judges and members of Area Courts and Customary Courts.”

Thus when the 1st respondent communicated its decision to retire the appellant from service by virtue of the provisions of the Public Officers (Special Provisions) Decree No. 17 of 1984, it was essentially performing a statutory duty. The 2nd respondent was joined in the action as a necessary party as the Chief Law Officer of the Kaduna State Government. There can be no doubt, therefore, that the respondents were sued in this action for an act done in pursuance or execution of an Act or Law or of any public duty or authority. The crucial issue for resolution in this appeal is whether or not the said respondents are covered or come within the provisions of section 2(a) of the Public Officers (Protection) Law, 1963.

The contention of the appellant is that only named individuals, natural persons or public officers who are sued ill their personal names are covered by the provisions of the Law in question. It was strenuously argued that the Public Officers (Protection) Law does not cover or protect public bodies, artificial persons whether corporate or incorporate, institutions or a person sued in his official name or by his official title, such as an Attorney-Genera], Permanent Secretary, Judicial Service Commission (now Committee) or the like. I think it will be best to start with a brief consideration of the status of the respondents individually.

As already mentioned, the 1st respondent is a creation of section 178(1)(d) of the Constitution of the Federal Republic of Nigeria, 1979 (as amended). Section 8 of Part II to the Third Schedule to the 1979 Constitution stipulates that the Judicial Service Commission (now Committee) shall comprise or the following members, namely:-

“(a) the Chief Judge of the High Court of the State, who shall be the Chairman;

(b) the Attorney-General of the State;

(c) the Grand Kadi of the Sharia Court of Appeal of the State, if any;

(d) the President of the Customary Court of Appeal of the State, if any;

(e) one member, who is a legal practitioner, and who has been qualified to practice as a legal practitioner in Nigeria for not less than ten years; and

(f) one other person, not being a legal practitioner, who in the opinion or the Governor is of unquestionable integrity.”

The Judicial Service Committee is one of the four statutory bodies established at State level under section 178(1) of the 1979 Constitution. Its membership and official duties are clearly spell out under the Constitution. It is a statutory body, a corporation aggregate and or a legal personality capable of suing and/or being sued.

There is also section 176(1) of the 1979 Constitution under which the State Attorney-General as Chief Law Officer was created. The 2nd respondent as the Kaduna State Attorney-Genera] is also a creation of the 1979 Constitution. It is therefore a legal personality, capable also of suing and/or being sued. The Attorney-General in Part II of the Fifth Schedule to the 1979 Constitution item 6

is therein also specified as a public officer. I will now consider whether, as submitted by learned counsel for the appellant, the respondents are not covered under the Public Officers (Protection) Law, for the sole reason that the 1st respondent was sued as an artificial person, a public body or a corporate entity whilst the 2nd respondent, for his own pan, was sued by his official title and not in his persona] names. Put differently, do the words “any’ person” as provided in section 2 of the Public Officers (Protection) Law of Northern Nigeria, 1963, refer only to natural persons, that is to say, to human beings sued in their personal names to the exclusion of artificial persons, public bodies, corporate entities, and public officers sued by their various individual official titles, such as Attorney-General or Permanent Secretary.

The answer to the above question will depend entirely on the interpretation of the words “any person” in section 2 of the relevant Law. At the risk of repetition but for purposes of easy reference, I will once again reproduce hereunder the provisions of section 2(a) of the Public Officers (Protection) Law, 1963. It stipulates thus:

“2. Where any action, prosecution, or other proceeding is commenced against an)’ person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such 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.” (Italics supplied for emphasis)

Before I proceed any further, I think it ought to be stressed that it is the cardinal principle of law in the interpretation of a statute that where the words of such a statute are clear and unambiguous, they must be given their plain and ordinary meaning unless this would lead to absurdity and effect must be given to the provision in question without any recourse to any other consideration. See Nafiu Rabiu v. The State (1980) 8-11 S.C. 130; (1982) 2 NCLR 117. The words of a statute are to be interpreted as bearing their natural and ordinary meaning. See Attorney-General v. Milne (1914) A.C. 765. And where such words of an Act of Parliament are plain and clear, there will not arise any room for applying any of the principles of interpretation which, incidentally, are merely presumptions that are applied in cases of ambiguity in a statute. See Croxford v. Universal Insurance Co. (1936) 2 K.B. 253 at 281. Although, therefore, there are quite a few rules of construction that courts of law have resorted to in their interpretation of statutes, the paramount and golden rule remains that every statute is to be expounded according to its manifest and expressed intention. See Attorney-General for Canada v. Hallet and Carey LD. (1952) A.C. 427 at 449.

Accordingly, where a statutory provision is clear, it cannot be constructed and stretched beyond its con. If its language and legislative content are apparent, a court of law is not clothed with jurisdiction to distort its plain meaning in order to make it conform with its own views of sound social justice. See Osadebay v. Attorney-General of Bendel State (1991) 1 NWLR (Pt. 169) 525 at 574. So, a mere conjecture that Parliament entertained a purpose which, however natural, has not been embodied in the words it has used, if they be literally interpreted, is no sufficient reason for departing from the literal construction. See Lumsden v. Inland Revenue Commissioners (1914) A.C. 877 at 892. The duty of the court is to interpret the words that the legislature has used; and even where those words infact present some ambiguity, the powers and duty of the court to travel outside them on a voyage of discovery are strictly limited. See Assam Railway and Trading Co. v. Internal Revenue Commissioners (1935) A.C. 445 at 458. See too Magor and St. Mellons Rural District Council v. Newport Corporation (1952) A.C. 189 at 191. So, in the latter case, Lord Simonds, commenting on this proposition of law at page 191 of the report expounded his views on the matter as follows:-

“It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation. And it is the less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it in. If a gap is disclosed, the remedy lies in an amending Act.”

See too London Transport Executive v. Betts (1959) A.C. 213 at 247. It is against the above principles of law that I must now proceed to examine the meaning of the words “any person” in section 2 of the Public Officers (Protection) Law, 1963.

I have closely read and reread the provisions of section 2 of the Public Officers (Protection) Law, 1963 and can find no ambiguity whatsoever therein. That section of the Law lays down certain conditions a plaintiff must comply with where he commences any action against “any person” in respect of an act done in the execution of a public duty. Without doubt, those words “any person” are crystal clear. They also seem to me plain and admit of no ambiguity. In the circumstance, I ask myself the natural and ordinary meaning of those words. I ask myself the plain, manifest and expressed meaning of those words. In my view, they connote nothing else other than what they mean, that is to say, “any person” by their plain clear and ordinary meaning under the Law.

It is beyond dispute that the word “person” when used in a legal parlance, such as in a legislation or stature, connotes both a “natural person”, that is to say, a “human being” and an “artificial person” such as corporation sole or public bodies corporate or incorporate. See Royal Mail Steam Packet Co. v. Braham (1877) 2 A.C. 381 at 386 (P.C.). So, too, in the Australian case of Leske v. S. A. Real Estate Investment Co. Ltd. (1930) 45 CLR 22, the position was stated per Rich and Dixon, J1. at page 25 as follows:-

“The time has passed for supposing that the Legislature would use the word ‘person’ only to signify a natural person in dealing with a class of business in which the utility of the proprietary company has long been made manifest. Indeed, it may be said that in modern business, as elsewhere, Jelly’ ‘persons’ remain natural.” (Italics supplied for emphasis)

Now to come nearer home, there is the Interpretation Law, Cap. 52, Laws of Northern Nigeria, 1963 which is of particular relevance and significance to the Public Officers (Protection) Law, Cap. 111, Laws of Northern Nigeria, 1963. That Law makes provision for the “construction” of Laws and of the “terms” and “provisions” adopted in the Laws of Northern Nigeria. Section 2 thereof provides as follows:-

“2. This Law shall apply to this Law and to all Laws in force at the date of this Law and to all Laws hereafter enacted. and to regulations, orders, rules or court, appointments, notices and directions made, issued or given in Northern Nigeria consequent upon authority vested in any person or body by Act of Parliament or Order of the Queen in Council.€¢ ‘

In this regard, it must be pointed out that the interpretation and construction of the terms in and the provisions of the Public Officers (Protection) Law. 1963 are fully covered by the definitions contained in the said Interpretation Law.

Section 3 of the Interpretation Law Cap. 52, Laws of Northern Nigeria, 1963 defines the word “person” by way of inclusion as follows:-

“‘Person’ includes any company or association or body of persons corporate or unincorporate,”

There is also the definition of the same word “person” in section 18(1) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990 as follows:-

“‘person’ includes any body of persons corporate or unincorporate.”

Without, therefore, seeking guidance from any where else, it seems to me plain that the definition of the word “person” in the legal sense under the Nigerian Law is not limited to natural persons or human beings only as the appellant now vigorously appears to contend. It clearly admits and includes artificial persons such as a corporation sole, company or any body of persons corporate or incorporate. In this regard, and again without making reference to decisions of any foreign jurisdiction, it is clear to me that it cannot be right that the definition of “any person” in the Public Officers (Protection) Law of Northern Nigeria, 1963 must be read as meaning any person in any limited sense, that is to say. as referring only to natural persons or human beings. I am not, with respect, prepared to accept this interpretation as well founded. This is because to ascribe to those words any limited meaning would tantamount to importing into the words of a statute, such qualifying or additional words those were not provided there in the first instance by the legislature. This exercise the courts are not permitted in law to indulge in. See Obafemi Awolowo v, Shehu Shagari (1979) 6-9 S.C. 51 at 68: Okumagba v. Egbe (1965) 1 All NLR 62 etc.

The simple reason for the above legal principle is that in the construction or a statute, as I have earlier indicated, the duty of the courts of law is limited to interpreting the words used by the legislature and it is neither the function of the courts nor do they have any power to fill in what it conceives to be any gaps in an Act of Parliament. To do so would naturally mean to usurp the function of the legislature under the guise of judicial interpretation. See Magor v. Corporation (1952) A.C. 189 (HL). As has been pointed out repeatedly, the office of a judge is jus dicere, that is to say, to state the law, not jus dare, that is, to enact law. Any amendment of an enactment is the function or tile legislature anti the courts cannot fill a gap which it conceives has come to light by altering the words of a statute to make it read the way, they think. it should have been enacted. See too Okumagba v. Egbe (supra). The law makers, if they had intended the words “any person” in the Public Officers (Protection) Law to mean “any person” in a limited sense should have clearly so stated in the legislation. This, it did not do, and I do not conceive that it is the duty of this court, or indeed, of any court of law to go in for judicial legislation by limiting the clear and plain meaning of the words employed in the Law in issue.

In this connection, attention must also be drawn to section 42(b) of the Interpretation Law of Northern Nigeria which is section 14(b) of the Interpretation Act. Cap. 192. Laws of the Federation of Nigeria 1990 where in it is provided thus.-

“14(b) words in the singular include the plural and words in the plural include the singular.”

I have also referred to the definition of the word “person” under section 3 of the Interpretation Law and section 18 of the Interpretation Act respectively. This is defined to include any body of persons corporate or unincorporate. It is my view therefore that the words “any person” as provided in section 2 of the Public Officers (Protection) Law of Northern Nigeria, 1963 are not limited only to natural persons or human beings or to persons sued in their personal names. Unless the contrary intention is indicated, and no such intention is therein manifested, those words in the Public Officers (Protection) Law include persons known to Law, inclusive of artificial persons, public bodies or body of persons corporate or incorporate as well as statutory bodies or persons, whether sued by their official titles or not, so long as they are sued in respect of an act or acts done in pursuance or execution of any Law or of any public duty or authority.

Learned counsel for the appellant did further argue that the Law in question, as its title implies, is a law to protect “public officers” and not “public offices”. He therefore submitted relying on the decision of the Court of Appeal in Felix Onyejekwe v. The Nigeria Police Council and The Inspector- General of Police (1996) 7 NWLR (Pt. 463) 704 at 712 – 713 that “any person” in the relevant Law must be restricted to “public officers” as human beings or natural persons only as the dictum of Udoma, J.S.C. seems to suggest and cannot include persons in the wider sense of those words, such as an Attorney-General, Permanent Secretary, Inspector-General of Police or artificial persons and/or bodies.

With the greatest respect, I cannot pretend that I fully appreciate learned counsel’s contention in this area of his argument. In the first place, although the title of the relevant Law implies a Law to protect “public officers” and not “public officer”, it is beyond argument that government positions such as Attorney-General, Permanent Secretary, Inspector-General of Police etc although” public offices”, they are none-the -less “public officers” in law. I cannot, with respect, accept that an Attorney-General, Permanent Secretary or the Inspector-General of Police is not a “public officer” as known to law.

In the second place, the short title to the Law in issue reads:-

“This Law may be cited as the Public Officers (Protection) Law’”

There is also the long title of the Law which goes thus:-

“A Law to provide for the protection against actions of persons acting in the execution of public duties,”

The term “public officer” is used synonymously with the term “public department” and is defined as follows:-

“public officer’ or ‘public department’ extends to and includes every officer or department invested with or performing duties of a public nature whether under the immediate control of the President or of the Governor of Northern Nigeria or not.”

There is yet section 55 of the Interpretation Law of Northern Nigeria which explains thus:”

55. A reference in my Law to any public officer by the usual or common title of his office shall, if there be such an office customarily in Nigeria and unless the contrary intention appears, be read and construed as referring to the person for the time being holding or carrying out the duties of that office in Nigeria.”

There is finally section 18(1) of the Interpretation Act in which term “public officer” is defined as meaning:€¢

“a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or of the public service of a State.”

I have found it desirable to set out the various definitions of the term “public officer” as the definition in section 3 of the Interpretation Law of Northern Nigeria, 1963, in particular, equates the term “public officer” with “public department” and includes every officer or department invested with the performance of public dillies. Section 55 of the same Law then provides that a reference in any Law to a public officer by his official title or public office shall, unless the contrary intention appears, he read and construed as referring to the individual person for the time being holding or carrying out the duties of that office. Additionally there is section 18(1) of the Interpretation Act which defines public officer as meaning a member of the public service of the Federation within the meaning of the 1979 Constitution or of the public service of a State. And it is beyond argument that the positions of Attorney-General. Permanent Secretary, Inspector-General of Police etc, arc all offices duly created under the 1979 Constitution.

It is thus clear to me that the term “public officer” has by law been extended to include a “public department” and, therefore, an artificial person, a public office or a public body. I do not think that it can be suggested with any degree or seriousness that the Public Officers (Protection) Law, Cap III of Northern Nigeria, 1963 while it protects public officers, cannot in the same wise protect a public department, an artificial person or a public body, so long as they are sued for an act done in the execution of their public duties. Nor am I able to accept that Cap. III does not protect persons, offices, bodies or institutions created by statute or the Constitution or persons sued by their official titles, such as Attorney-General, Inspector-General of Police or Permanent Secretary. As I have repeatedly stated, the words of the section of the Law under interpretation are clearly not in themselves ambiguous. There is also nothing in either the long or short title, against the full con of the legislation, which suggests that any special meaning is to be given the words “any person” in that Law other than their ordinary and plain meaning. I therefore find myself unable to introduce any limitation words to qualify the words “any person” in the legislation in issue. See Fielding v. Morley Corporation (1899) 1 Ch. 1. I will now turn to the decided cases cited by learned counsel for the parties on the issue of whether or not the respondents are covered by Section 2 (a) of the Public Officers (Protection) Law. 1963.

Two decided cases of this court were relied on by learned counsel. The appellant’s contention was that the decision of this court in Rufus Momoh v. Afolabi Okewale and another (1977) NSCC 365 settled the main issue for determination in this appeal. In his submission, this court in that case decided that the Nigerian Public Officers Protection Law was aimed at protecting public officers as individuals in the discharge of public duties. He maintained that in-as-much as the two respondents in the present cases were sued as a statutory body an by official title respectively, and not as natural persons, they could not be covered by the Law in issue. In support of his contention, learned counsel cited a number of decisions which I drew attention to earlier on in this judgment.

The respondents, for their part, relied on the earlier decision of this court in Permanent Seeretary, Ministry of Works etc and another v. S. Balogun (1975) NSCC 292. Their submission is that the ratio decidendi in that case settled the issue under consideration in this appeal and that the observation of Udoma, J.S.C in the Rufus Momoh case is a mere obiter dictum and cannot be regarded as the rario decidendi in the case. I will now examine these cases.

In Rufus Momoh v. Afolabi Okewale and another (supra), the plaintiff s claim was in damages for negligence following a road traffic accident involving the plaintiff and a bus driven at all material times by the 1st defendant who was in the employment of the 2nd defendant, the Lagos City Council. At the trial, the defendants, in addition to denying negligence, urged that the action should be dismissed on the ground that it was statute-barred as the 1st defendant was a public officer and therefore protected under section 2(a) of the Public Officers Protection Act, Cap. 168. Laws of the Federation of Nigeria, 1958. The trial court found negligence established but upheld the submission that the 1st defendant was a public officer and that the action was statute-barred since it had not been commenced within 3 months of the accident.

On appeal before this court, the only issue in contention was as to whether or not the 1st defendant was a public officer and therefore protected under section 2(a) of the Public Officers Protection Act, 1958. This issue was carefully considered by this court and resolved thus:

“…we are satisfied and hold that the learned trial Judge was clearly wrong in law in holding that the 1st defendant was a public officer, and, therefore, protected by the provisions of section 2, of the Public Officers Protection Act. Cap. 168. We accordingly reverse that decision.”

The above finding completely resolved the only issue between the parties in the appeal before this court.

The court, per Udoma, J.S.C., however, subsequently observed:-

“It seemed to have been overlooked that there is a vast difference between the titles of the two Acts. The Nigerian Act is entitled: ‘Public Officers Protection Act’, whilst the” English statute bears the title of ‘Public Authorities Protection Act’. The aims and objects and the purposes of the two acts arc also different. The intention of the British Parliament in enacting the English Act was to protect public authorities engaged in the discharge of responsibilities imposed upon them by Parliament. The Nigerian law was aimed at protecting public officers as individuals in the discharge of public duties. “(Italics supplied for emphasis).

It is the above italicized observation of Udoma. J.S.C. that learned counsel for the appellant relied on in his submission that the decision in the Okewale case is to the effect that the Public Officers Protection Act which, by the way, is in pari material with the provisions of the Public Officers (Protection) Law. 1963 was aimed at protecting only public officers who are human beings, that is to say, natural persons and not otherwise.

As I have already stated, I cannot accept that proposition of law by learned counsel as well founded. This is for the simple reason that the observation in issue is not a ratio decidendi in the case which will be regarded as binding until departed from. The 1st respondent in that case was admittedly sued as a human being or a natural person and in his personal names. The question whether he was sued as an individual or a natural person did not therefore arise for decision or constitute an issue for consideration in that case. Nor was the issue infact canvassed by the parties.

I think I ought to mention that it does appear clear that the chain of the decided cases of the Court of Appeal in support of the appellant’s contention invariably relied on the said observation of Udoma, J.S.C. in the Okewale case as a binding precedent, as a result of which it arrived at its decisions. I think, with respect, that the Court of Appeal was wrong in this exercise.

In Alhaji Abbas Tafida v. Abubakar and others (1992) 3 NWLR (Pt. 230) 511, the Court of Appeal per Katisina-Alu, J.C.A., as he then was, applied the said observation of Udoma, J.S.C. in the Okewale case as the law and declared thus:”

It is now settled law that the Public Officers Protection Act. Cap. 168, Law of the Federation of Nigeria protects public officers and will not protect an institution, office or public authority. See Nwankwere v. Adewunmi (1967) NMLR 45 at 49, Momoh v. Okewale and another (1977) 6 SC 81. In Mamoh’s case, the Supreme Court held that unlike the English Public Authorities Protection Act, 1893 which protects public authorities, the Public Officers Protection Act was aimed at protecting public officers in the performance of their public duties: See Agboola v. Saibu (supra) where this court held that €¢ Public Officers Protection Act protects public officers as individuals and will not protect the 2nd defendant, an institution.’”

Having so held the Court of Appeal went on:-

“The 7th respondent is the Government of Gongola State. It is not a person. It is an institution. The 6th respondent is the Attorney-General of Gongola State…

The office of the Attorney-General, in my view, is an institution or a public office; the holder of the office is a public officer. In the present proceedings no action has been brought against a named individual as the holder of the office of Attorney-General… I am of [the] opinion, therefore, that the 6th respondent is not a public officer:’

There is next the Court of Appeal decision in Utih v. Egorr (1990) 5 NWLR (Pt. 153) 771 in which it held. Again relying on the Okewale case, that section 2 of the Public Officers Protection Law applied only to natural persons and not to public bodies or institutions, In that case, Ogundare, J.C.A, as he then was, delivering the judgment of the court stated:-

“….I must hold that the 21st respondent was at all times relevant to the action leading to this appeal a public officer entitled to the protection afforded by section 2(a) of the Public Officers Protection Law. As that section seeks to protect individual public officers in the discharge of public duties however, I am not prepared to extend its protection to the 22nd respondent . see Momoh v. Okewale and another (1977’bb) 6 SC 81 at 89.”

There is then the decision in Hassan Amao v. Civil Service Commission and others (1992) 7 NWLR (Pt. 252) 214 where the Court of Appeal, again applying the observation in the Okewale case stated per Achike, J.C.A., as he then was, as follows:-

“It is now tolerably clear that the uncertainty in the operation of section 2 of the Law has been finally laid to rest by the decision in Momoh v. Okewale, where in construing section 2 of the Public Officers Protection Act which is in pari materia with section 2 of the Law, the Supreme Court observed as follows at page 367:-

…. The intention of the British Parliament in enacting the English Act was to protect public authorities engaged in the discharge of responsibilities imposed upon them by Parliament. The Nigeria Law was aimed at protecting public officers as individuals in the discharge of public duties.’ ”

The court not unexpectedly concluded thus:-

“Section 178(1) (a) of the Constitution of the Federal Republic of Nigeria makes provision for the establishment of a State Civil Service Commission … The Commission is therefore a constitutionally created authority.” it follows that the Commission being a public authority is outside the contemplation of the provisions of section 2(a) of the Law. The time bar to the institution of action within the period of three months of the commission or omission of the act under the Law cannot avail the Ist respondent, not being a public officer or person within the provisions of that Law,”

In the case of Felix Onyejekwe v. The Nigeria Police Council and the Inspector- General of Police (1996) 7 NWLR (Pt. 463) 704, the Court of Appeal relying on the case of Alhaji Abbas Tafida (supra) which in turn was based on the same observation in the Okewale case held that the Inspector-General of Police, not having been sued in the action in his personal name was not protected under the Public Officers Protection Act. Said Musdapher, J.C.A.:-

“It is now settled law that the Act protects only public officers acting in the execution of public duty and does not protect an institution, office or public authority … In Tajida v. Abubakar (1992)

3 NWLR (Pt. 230) 511, it was held that the office of Attorney-General is an institution or a public office and therefore is not protected by the Act. .. It is beyond any doubt that the appellant sued the office of the Inspector-General of Police and not the person of the Inspector-General of Police, .. It is an institution and the action was not filed against the incumbent Inspector-General of Police in his individual personal capacity acting in the execution of a public duty. From the authorities cited above, I am satisfied that the office of the Inspector-General of Police is not protected under the Public Officers (Protection) Act.”

Reference must finally be made to the Court of Appeal decision in Alapiki v. The Governor of River State and another (1991) 8 NWLR (Pt. 211) 575. In that case, as in the Okewale case and in the rest of the cases which were based on the Okewale case, the Court of Appeal on comparative basis restated that there was a vast difference between the titles of the English Public Authorities Protection Act, 1893 and the Nigerian Public Officers Protection Act. Again, relying on the observation in the Okewale case, it affirmed that whereas the English Act was enacted to protect public authorities, the Nigerian Law was aimed at protecting public officers as individuals in the discharge of public duties. It therefore held that by virtue of the Public Officers (Protection) Law, only public officers, who are natural persons, are protected and that the provisions do not apply to public bodies or institutions. It accordingly ruled that the 1st respondent, the Governor of Rivers Slate, was not sued in the action as a natural person but as a corporation sole created by the Constitution and that it was not therefore protected by the Public Officers Protection Law.

I think I ought to stress that one common feature that runs through the above Court of Appeal decisions is the reliance by each and every on~ of them on the observation of this court in the Okewale case. But as I have pointed out, the observation relied on in that case. if I may say with profound respect, is neither the ratio decidendi nor did it infact pertain to any issue between the parties in that case. I will now briefly consider the other set of authorities which supports the respondents’ contention in this appeal.

I will start with the decision of this court in Permanent Secretary, Ministry of Works etc, and another v. S. Balogun (supra).

In the Balogun case, the respondents, as plaintiff, had sued the 1st appellant, Permanent Secretary, Ministry of Works. Kwara State and the 2nd appellant challenging the validity of a certificate of title issued by the 1st to the 2nd appellant. Both appellants, as defendants, raised two distinct defences in limine to the plaintiff’s action, namely:-

(1) that the plaintiffs action was statute-barred by virtue of the provisions of section 2 of the Public Officers Protection Law. Cap. III, Laws of Northern Nigeria: and

(2) res judicata in that the subject matter of the action had been adjudicated upon in a previous case between the plaintiff and the 2nd defendant and that the plaintiff lost in the suit.

The trial court upheld the plea of estoppel by res judicata and struck out the action as against the 2nd defendant, leaving only the 1st defendant, to wit, the Permanent Secretary. The trial court overruled the plea of time-bar by the Permanent Secretary. It held that the injury to the plaintiff vis-a-vis the Permanent Secretary being a continuing one, the limitation law under (he provisions of the Public Officers (Protection) Law did not avail the Permanent Secretary.

On appeal, this court held that the plea of time-bar succeeded since the complaint of the plaintiff was that the Permanent Secretary acted irregularly at the time of granting the certificate and not that the case was that of a continuing injury as the trial court had found. Disposing of the issue of time-bar canvassed in the appeal, this court per Coker, J.S.C. stated:-

“Both defendants have now appealed to this court against the judgment and had argued that the plea of time-bar against the 2nd (sic) defendant should have been upheld and that in any case, the plaintiff could not, at least in the present proceedings, defeat the plea of res judicata by adding a nominal [party] to the proceedings. The argument was sternly resisted by learned counsel for the plaintiff but we are convinced that the contention of the defendants is well founded. We do not agree with the learned trial Judge that the plea of time-bar did not succeed and we point out that he was in error in basing his ruling on its inapplicability on an issue which was not pleaded by the parties.”

One thing that is indisputable in the decision of this court in the Balogun case is that a definite issue was joined by the parties as to whether the Permanent Secretary, a position created by the Constitution, was protected under section 2 (a) of the Public Officers (Protection) Law of Northern Nigeria. The issue, to quote the judgment of this court, was “sternly” argued and a clear decision was taken to the effect that the plea of time-bar raised by the Permanent Secretary, Ministry of Works, Kwara State, an artificial person or institution sued by an official title and not as an individual natural person was wrongly overruled by the trial court. This court held that this plea of the Permanent Secretary under the Public Officers (Protection) Law succeeded. In my view, the decision of this court in the Balogun case is binding on the Court of Appeal. This is as against the mere obiter dictum in the Okewale case which, regrettably, would appear to have been erroneously applied in some decisions of the Court of Appeal.

There is then the illuminating decision of this court in Adigun v. Ayinde and 2 others (1993) 8 NWLR (Pt. 313) 516 at 533 where Karibi-Whyte, J.S.C. in his interpretation of section 2(a) of the Public Officers (Protection) Law of Niger State, which is inpari materia with the Law in issue in the present appeal, was of the view that that Law covered public officers or authority, that is to say, both natural and artificial persons alike. Said he:-

“The words of this section appear to me unambiguous and clear, it relates and applies to actions against public officers or authorities for acts done, or in respect of neglect or default in the execution of their duties. Applying the literal rule of statutory construction, the section applies to ‘any action against a public officer or authority, without exception as to who or in respect of who the action was instituted. The phrase ‘any action’ must be given its natural and ordinary meaning …

The section relates to and unequivocally refers to actions against public officers and authorities for injury/damage caused in the execution of duty. It does not seem to me to exclude actions by public officers in the same situation. In the instant case, it is common ground that 1st respondent is a public officer, the 2nd and 3rd respondents are public functionary and authority. The action instituted by appellant against the respondents for injury/damage caused to him through the driving of the 1st respondent, is in respect of an act done in pursuance or execution of a public duty, or in respect of an alleged neglect or default in the execution of such duty within the meaning of section 2(a) Public Officers (Protection) Law above.” (Italics supplied for emphasis) It is instructive to observe that the 2nd and 3rd respondents in that suit were the Permanent Secretary, Federal Ministry of Agriculture and the Federal Civil Commission who were sued by their official title and as corporate body respectively.

I think I ought to say a word or two with regard to the decision of this court in Gamu Yare v. Alhaji Adamu Nunku (1995) 5 NWLR (Pt. 394) 129. In my contribution to the leading judgment in that case, I did observe in very general terms that the purpose of the Public Officers (Protection) Law is 10 protect public officers as individuals in the discharge of their public duties. That observation, in the first place, was entirely obiter as it related to no issue argued before the court in that appeal. I should however make it clear that it was not my intention by the use of the words “as individuals” in that observation to limit the public officers covered under that Law to natural persons only. The words “as individuals” do not necessarily refer at all times to natural persons. to the exclusion of artificial persons, public bodies or persons who go by their official titles, such as an Attorney-General or a Permanent Secretary. In my view, the word “individual” may, in appropriate cases, be construed in law as extending not only to natural persons but to artificial persons as well. So, by section 9 of the English Railway and Canal Traffic Act, 1888, the Railway and Canal Commissioners are conferred with jurisdiction to hear complaints where an enactment in a special Act imposes on a railway company an obligation in favour of the public or any individual. It was held that the words “any individual” in the Act include not only what is commonly called an individual person, but also a company or corporation, that is to say, “any legal person who is not the general public”. See Great Northern Railway Co. v. Grear Central Railway Co. (1899) 10 Ry, and Canal Traffic Cas 266 at 275 – 276. Said Wright, J.:-

“It seems to me that (he word individual must be construed as extending, not merely to what is commonly called an individual person, but to a company or corporation … ‘Individual’ seems to me to be any legal person who is not the general public.”

I accept the above proposition of law as well founded. Similarly in Commissioner of Taxation (6th) v. Cappid Property (1971) 45 ALJR 329 the words individual members’ in section 103 A(2)(c) of the English Income Tax Assessment Act 1936 were construed as including corporate members. It cannot be, therefore, right to suggest that the word “individual” necessarily means ‘natural persons’ at all times to the exclusion of ‘”artificial persons”.

In the case on hand, I did hold that the words “public officer” or “any person” in public office as stipulated in section 2 of the Public Officers (Protection) Law, 1963 not only refer to natural persons or persons sued in their personal names but that they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles, It seems to me plain that my observation in [he Alhaji Nunku case with regard to the protection of public officers as individuals was not meant to refer to natural persons only but also covered artificial persons alike. The question may finally be asked whether an Attorney-General or a Permanent Secretary who is duly appointed and sworn into office may not also be referred to as an “individual” in the con of the obiter dicta in the Okewale and Nunku cases. My straight answer must be in the affirmative, Speaking for myself, therefore, the issue in this appeal is far more extensive than the observations in issue. This is whether apart from public officers sued as individuals in their personal names, the provisions of the Public Officers (Protection) Law, 1963 do not also cover other persons that come within the con of section 2(a) thereof but who are sued otherwise than as natural persons. That is the issue {hat has now come directly into question in this appeal.

There is next the decision of the Court of Appeal, Jos Division, in the case of Atiyaye v. Permanent Secretary, Ministry of Local Government and Attorney-General, Borno State (1990) 1 NWLR (Pt. 129) 728 where Maidama, J.C.A., relying on the Balogun case held that both respondent, the Permanent Secretary Ministry of Local Government, Borno State and the Attorney-General, Borno State being creations of the Constitution were covered by section 2(a) of the Public Officers (Protection) Law. Said he:-

“Now the first question to be answered is whether either the Permanent Secretary, Ministry of Local Government or the Attorney-General of Borno State is a public officer within the meaning of section 2(a) of the Public Officers (Protection) Law … From the foregoing. it is quite obvious that both the Permanent Secretary and the Attorney-General are public officers within the meaning of section 2(a) of the Public Officers (Protection) Law … The next question is whether they are both entitled to the protection offered by section 2(a) of the Public Officers (Protection) Law. The injury complained of in the present case was done by the 1st respondent in the performance of his public duty and in the absence of any malice or bad faith, he is entitled to the protection offered by section 2(a) of the Public Officers (Protection) Law. The same applies to the 2nd respondent …”

There is finally the decision of the Court of Appeal Benin Division, in Patrick Iyamah v. N.E.P.A. (1982) C.A. 2 page 68 at 70 – 71 which, in my view, gives clear support for the contention of the respondents that the Public Officers (Protection) Law applies to natural persons and statutory bodies alike.

I have repeatedly stressed that all the Court of Appeal cases which establish that the Public Officers (Protection) Law only applies to protect public officers as individuals or natural persons and not otherwise erroneously arrived al those decisions from the obiter dictum in the Okewale case. That obiter dictum, by no means, forms any pan of ratio decidendi in the case. In my view, the set of cases of the Court of Appeal which purports to have applied the decision in the Okewale case were decided per incuriam and ought not be allowed to stand. Speaking for myself, and for all the reasons I have advanced earlier on in this judgment, I entertain no doubt that the decision of this court in the Balogun case remains good law. It seems to me that to hold that the Public Officers (Protection) Law only covers public officers as individuals or as natural persons only will tantamount to an amendment of the relevant law by the addition of the words ;’as individuals” after the words against “any person” in line 2 of section 2 of the Public Officers (Protection) Law, 1963. This exercise, as I have pointed out, is not the duty of any court of law. It is the legitimate duty of the legislature to carry out any amendments they consider necessary in any legislation.

There is one final point I wish to make in connection with the set of cases that favours an amendment of the relevant Law, This is the fact that in virtually all those cases, beginning with the Okewale case, the courts for one reason or the other proceeded with considering the “vast difference” between the English and the Nigeria legislations on the subject. Without doubt, there is a vast difference between both legislations. But where the provisions of a statute, such as the provisions of our Public Officers (Protection) Law, are clear and unambiguous, it is the duty of the court to give such provisions their plain meaning. There will be no need under such circumstance to make a voyage of discovery to other countries to ascertain the construction they have placed on their own statute that deals with a particular group of persons before deciding on the interpretation that must be given to our own legislation that covers a different class of persons. It seems to me that the safer and more correct course of dealing with a question of construction is to take words themselves and arrive, if possible, at their meaning, without in the first instance making reference to decided cases from other jurisdictions. See Barrell v. Fordree (1932) A.C. 676 at 682. I agree entirely that the provisions of our Public Officers (Protection) Law, 1963 are clearly broader in operation and patently cover a wider class of persons than the English Public Authorities Protection Act, 1893. This is simply because whereas the words “any person” would, in law, include an artificial person, such as an authority, an artificial person would not and cannot include a natural person. This seems to me to explain the admittedly “vast difference” between the meaning of the words “any person” in the Public Officers (Protection) Law, 1963 as against their meaning in the English Public Authorities Protection Act, 1893. Whereas the words “any person” in the former law is referrable to both natural and artificial persons, they only cover public authorities in the United Kingdom Act.

Having held that the act complained of by the appellant was an act done by the respondents in the direct execution or in the discharge of a public duty, the conclusion I therefore reach is that the said respondents fall within the contemplation of the protection afforded by the Public Officers (Protection) Law, Cap. III, Laws of Northern Nigeria, 1963. The cause of action in the suit arose on the 8th February, 1984 on which date he appellant was retired from the judicial service of Kaduna State. The present action, however, was not commenced until the 28th April, 1986, a period over two years since the cause of action in the suit arose. It is clear that the appellant’s suit is caught by the provisions of the Public Officers (Protection) Law, 1963 and is therefore statute-barred. Issue I is accordingly resolved against the appel1ant.

In view of my finding on issue 1, it become idle for me to consider issue 2 in any detail. It suffices to state that the respondents, quire rightly in my view, conceded that the complaint of the appellant under issue 2 was well founded as the court below dealt with the question of the competence of the appellant’s action, a matter that was neither an issue nor was it canvassed before it by the parties. The point cannot be over-emphasized that decisions of a court of law ought not to be founded on any ground in respect of which it has neither received argument from or on behalf of the parties before it nor even raised by or for such parties or either of them. See Shitta-Bay v. Federal Public Service Commission (1981) 1 SC 40. Saude v.Abdullahi (1989) 4 NWLR (Pt. 116) 387; (1989) 7 SCNJ 216 at229, Chief Ebba v. Chief Ogodo and anorher (1984) 1 SCNLR 372; (1984) 4 SC 84 at I 12.

The court has no business whatsoever to deal with any issue not placed before it. See Florence Olusanya v. Olufemi Olusanya (1983) ` SCNLR 134; (1983) 3 SC 41 at 56-57 and Ochonma v. Unosi (1965) NMLR 321 at 323. Besides, on no account should a court raise a point suo motu as it did in the present case, no matter how clear it may appear to be and proceed to resolve it one way or the other without hearing the parties. See Okafor v. Nnaife (1972) 3 ECSLR (Pt.1) 261; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at p. 581. If it does not, it will be in breach of the fundamental right of the parties to fair hearing. See Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 at 280.

In the present case, the court below not only raised suo motu the question of the competence of the appellant’s action but proceeded to hold, without hearing the parties or any or them, that it was caught by Decree No. 17 of 1984 which ousted the jurisdiction of the court. The matter was neither raised nor constituted an issue before it. This, without doubt, is clearly an error in law.

It is, however, not every mistake or error in a judgment that will result in an appeal allowed. It is only when the error is substantial in that it has occasioned a miscarriage of justice that the appellate court is bound to interfere. See Qnajobi v. Olanipekun (1985) 4 SC (Pt. 2) 156 at 163, Ukejianya v. Uehendu (1950) 13 WACA 45 at 46; Azuetonma Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539 at 556, Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386 at 400.

In the present case, it seems to me clear that no miscarriage of justice was thereby occasioned as a result of the said error of the court below. This is because, the appellant’s action, at all events, was caught by the provisions of the Public Officers (Protection) Law, 1963 and was therefore liable to fail. The resolution of issue 2 in favour of the appellant cannot therefore be any matter of great comfort to him as his action, at all events and in all the circumstances of the case, is bound to fail.

In the final result and for all the reasons that I have given above, this appeal fails and the same is hereby dismissed with costs to the respondents against the appellant which I assess and fix at N10,000.00.

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SC.130/1990