Arch Victor S. Daudu & Ors. V. University of Agriculture, Makurdi & Ors. (2002)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE, J.C.A.

The appellants claimed in their originating summons against the respondents as follows:

(i) A declaration that there is no provision in Decree No. 48 of 1992 as amended by Decree No. 11 of 1993, that permits or allows the 1st, 2nd and 3rd defendants, their servants or agents to perform or do all or any of the functions/duties of the 4th defendant specified in sections 3 (2), 6, 10, 11, 15 and 16 or any other section of Decree No. 48 of 1992, in the absence of the 4th defendant being duly constituted and or without the approval/delegation of the 4th defendant; and consequently every action or decision taken by the 1st, 2nd and 3rd defendants which ought to have been taken by the 4th defendant and which were taken by the 1st, 2nd and 3rd defendants in the absence of the 4th defendant or without the approval or sanction of the 4th defendant between January 1979 – 11th July, 2000 A.D.; were ultra vires null and void and of no effect whatsoever.

(ii) A declaration that there is no provision in Decree No. 48 of the 1992, as amended by Decree No. 11 of 1993, that permits or allows the 5th defendant herein to step into the shoes and assume the role, functions and duties of the 4th defendant as specified in sections 3(2), 6, 10, 11, 15 and 16 or any other section of Decree No. 48 of 1992 when the said 4th defendant is not constituted and in place and consequently every approval purportedly given to the 1st, 2nd and 3rd defendants the 5th defendant from January 1997 – 11th July, 2000 A.D., on behalf of and or in place of the 4th defendant is ultra vires null, and void and a breach of Decree No. 48 of 1992 as amended.

(iii) An order quashing the warning letters issued to the 1st and 3rd plaintiffs, letters of suspension of the 2nd and 3rd plaintiffs from supervision of the postgraduate students, letters of termination of the appointments of the 4th, 5th, and 6th plaintiffs and the dismissal letters of the 7th – 14th plaintiffs on the grounds that the said warnings, suspension, termination and dismissal were done contrary to and in breach of the provisions of Decree No. 48 of 1992.

(iv) A declaration that the 4th -14th plaintiffs are still in employment of the 1st defendant and are entitled to their salaries, wages, allowances and other benefits accruing thereto from the dates of their purported termination and dismissal until they leave office or removed from office in accordance with the provisions of Decree No. 48 of 1992 as amended.

(v) A declaration that the 1st, 2nd and 3rd defendants herein cannot create in the 1st defendant, new offices, schools, colleges, departments, units, posts, divisions and redesignating the office of the 1st plaintiff and split same into two, without the approval and sanction of the 4th defendant and consequently every such schools, colleges, departments, unit, offices, post divisions and redesignation of the office of the 1st plaintiff by the 1st, 2nd and 3rd defendants between January, 1997 11th July, 2000 A.D. is null and void and of no effect whatsoever.

(vi) An order restraining every member of the 4th defendant from ratifying or approving every action done or decision taken by ratifying or approving every action done or decision taken by the 1st, 2nd, 3rd and 5th defendants on behalf of or in place of the 4th defendant between January, 1997 – 11th July, 2000 A.D.

The defendants/respondents were served with the originating summons in respect to which motion on notice dated the 19th November, 2000 was filed praying the lower court for the following orders:

(a) An order striking out the names of the 7th -14th plaintiffs from the summons as they have not authorised nor consented to its issuance and are not interested parties;

(b) An order striking out the plaintiffs’ claim on the grounds that the claims are abuse of the process of the court and do not disclose reasonable cause of action as the facts and matters relied upon occurred in all cases more than 3 months before the originating summons was taken out which is statute barred by virtue of section 2(a) Public Officers Protection Act, Cap. 379.

(c) An order striking out the 4th, 7th, 9th, 11th, 13th and 14th plaintiffs from the suit on the ground that the court lacks jurisdiction to entertain the matter by virtue of the provisions of section 3(3) Public Officers Protection Act, Cap. 381, Laws of the Federation of Nigeria, 1990.

An order that the reliefs sought under the circumstances will be an academic exercise.

(d) And for any other order or further orders as the court may deem fit to make in the circumstances.

Both parties were heard on the application, and the trial Judge, in his ruling upheld the objection and held as follows at page 170 of the record:

“By virtue of all the above, I find that the plaintiffs have been caught by section 2 of the Public Officers Protection Act (POPA) and as such the case is statute barred. Be this as it may, there is no need for me to look into the other issues raised as the plaintiffs have no legal right to be before the court. I dismiss this action.”

It is against this ruling that the plaintiffs appealed to this court. Before us, four grounds of appeal were filed, these grounds without their particulars are as follows:

1. Judgment is against the weight of evidence.
2. The learned trial Judge erred in law when she held that the action of the plaintiffs/appellants is statute-barred and then dismissed the action/suit.
3. The learned trial Judge erred in law when she held that the action of the plaintiffs/appellants was statute-barred simply because according to her sections 3, and 19(9) of Decree No. 48 of 1992 place the supervision of the 1st respondent under the 5th respondent and that the visitor is the final arbiter on staff and student discipline.
4. The learned trial Judge erred in law when he held that the action of the plaintiffs/appellants is statute-barred by virtue of section 2(a) of the Public Officers Protection Act.

In accordance with the rules of this court, briefs were filed and exchanged. The appellants, in their brief of argument, formulated one single issue for determination thus:

“Whether the claims of the appellants were statute-barred by virtue of section 2(a) of the Public Officers Protection Act.”

The 1st to 4th respondents in their joint brief adopted the issue as formulated by the appellants while the 5th respondent formulated the issue for determination as follows:

“Whether the claims of the appellants against the 5th respondent is not statute-barred by virtue of section 2(a) of the Public Officers Protection Act, Cap. 379, Laws of the Federation, 1990.”

However, it is my humble view that both issues are saying one and the same thing, and I will therefore in this judgment prefer the issue as formulated by the appellants.

At the hearing of this appeal, on 18/4/2002, the learned counsel to the appellants J. S. Okutepa, Esq., adopted the brief of the appellants and submitted, in further amplification, that all his arguments are covered by the grounds of appeal. He then urged us to discountenance all arguments of the respondents which were not covered by any grounds of appeal. For example their argument touching on the competency of the suit before the lower court was never raised in any of the grounds of appeal they cannot therefore raise same in their brief. That they cross-appeal on the finding of the lower court that her jurisdiction was not ousted by virtue of the provisions of section 3 of the Public Officers (Special Provisions) Act, Cap. 381, Laws of the Federation of Nigeria, 1990. He then relied on the said submissions on the case of Adehi v. Atega & Ors. (1995) 5 NWLR (Pt.398) 656, (1995) 6 SCNJ 44-52. He then urged us to allow the appeal, set aside the decision and orders of the lower court.

The 1st-4th respondents counsel, Mr. J. Koudoum also adopted his brief of argument on behalf of his clients, he further submitted that the president as the visitor, has the power to dismiss public officer under the Public Officers Special Provisions Act, Cap. 381 and he urged this court to dismiss the appeal. The learned counsel to the 5th respondent Ononiwu, Esq., similarly adopted his brief of argument on behalf of his client, the Hon. Minister of Agriculture and Rural Development, and urged this court to dismiss this appeal.

The appellants’ counsel in his brief, argued strenuously that the provisions of section 2(a) of the Public Officers Protection Act did not apply to this case or matter. He conceded that the respondents are public officers however, he submitted that the protection given to the public officers by section 2(a) of the Public Officers Protection Act does not cover every act or action of the public officer, it only protects them from liability in respect of act they are empowered to do by law. He distinguished the Supreme Court decision in the case of Ibrahim v. Judicial Service Committee (1998) 14 NWLR (pt.584) 1, (1998) 11 & 12 SCNJ 255 from the instant case. It was his further submission that where a public officer acted ultra vires, or did any act outside the powers, duties or obligation conferred on him by the law such public officer would not enjoy the protection of the Public Officers Protection Act. He therefore submitted that for a public officer to enjoy the Protection Act to avail any public officer seeking to take advantage of the Act, such public officer must in addition to being a public officer show that the acts complained of were done in pursuance or execution of any law, public duty or authority. It was therefore his submission that since the acts i.e. the acts of termination, dismissal, warning and creation of colleges which are the subject of complaints in this case were not carried out by the 4th respondent as provided in section 2(a), 6, 10, 11, 15 and 16 of Decree No. 48 of 1992, the 1st, 2nd, 3rd and 5th respondents who carried out the acts acted illegally and outside the provisions of the enabling law, hence the provisions of section 2(a) of the Public Officers Protection Act cannot therefore protect them.

He submitted that the supervision of the 1st respondent is the exclusive duty of the 4th respondent, i.e. the Governing Council and not the Federal Ministry of Agriculture as erroneously held by the lower court. He also submitted that the removal of the 4th, 7th, – 14th appellants were done by one M. T. Atsaka for the Ag. Registrar and not by the visitor. He referred to exhibit UAM 4 and submitted that the termination and dismissal were not carried out under the provisions of the said law, since the said termination and dismissal were not done under the directive of the Head of State. Hence the defendants/respondents were not entitled to be protected. He referred to the case of Ulegbede v. The Military Administrator of Benue State & Ors. (2001) 2 NWLR (Pt.696) 73, (2002) FWLR (Pt. 22) 981 at 996.

Finally, the learned counsel submitted that the relationship between the appellants and the respondents are contractual in nature, hence the provisions of the Public Officers Protection Act cannot lie to prevent the claim of damages for wrongful dismissal or termination. He relied on the case of Amao v. Civil Service Commission & Ors. (1992) 7 NWLR (Pt. 252) 214 at 228. He further submitted that there is no dispute that there is a contract of employment between the appellants and the respondents. There is equally no dispute that the Decree and the regulations made thereunder have specified the persons competent to bring the contracts between the appellants and the 1st respondent to an end.

He therefore submitted that the lower court was in error to apply section 2(a) of the Public Officers Protection Act to the case purely based on “contract of service”.

The 1st – 4th respondents’ counsel submitted in his brief that the complaints of the appellant were lawfully carried out by the competent authorities. He therefore submitted that the appellants’ claim is statute-barred by virtue of the provisions of section 2(a) and 3(3) of the Public Officers Protection Act, 1990 and also that the court is without jurisdiction to adjudicate on it by virtue of the Public Officers (Special Provision) Act, Cap. 381 of 1990.

Learned counsel submitted that public officer is defined in section 277(1) of the 1979 Constitution, section 1(1) of Decree 48 of 1992 and section 18 of the Interpretation Act. He therefore submitted that all the appellants and respondents are public officers within the meaning and intendment of the law. Learned counsel submitted further that the appellants were removed from the service of the 1st respondent by the Head of State who has power of removal of any public officer in the country pursuant to sections 1(1) and 4(2) of the Public Officers (Special Provisions) Act, Cap. 381 of 1990. And by the instrument dated 19/3/99 and communicated to some of the appellants, the Head of State and Commander-in-Chief of the Armed Forces of Nigeria, as the appropriate authority, to remove the appellants from the service of the 1st respondent. Since they were removed by appropriate authority, their removal cannot therefore be challenged in court.

He referred to the cases of:

1. Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688, (1990) 4 SCNJ 97;
2. Shitta-Bey v. Attorney-General of the Federation (1998) 10 NWLR (Pt.570) 392, (1998) 7 SCNJ 224.

Mr. Koudoum, learned counsel to the 1st – 4th respondents also submitted that by virtue of the provisions of section 3 of Decree 48 of 1992 the entire supervision and control including discipline of 1st respondent and her officers are put under Federal Ministry of Agriculture which is headed by the 5th respondent. He referred to section 8 of Decree 48 of 1992 and submitted that the 2nd respondent acted within his powers and duties under the law when he splitted the physical facilities department of 1st respondent and issued warning letters to 3rd appellant and also the suspension of the 3rd appellant.

He finally submitted on this point that since these acts to wit; dismissal, termination of employment and other disciplinary measures taken by the respondents were validly made within the law, the appellants could only file this action within 3 months after the accrual of the cause of action. He referred to section 2(a) of the Public Officers Protection Act; and Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) page 1, and Ibrahim v. JSC (1998) 14 NWLR (pt.584) 1, (1998) 12 SCNJ 255.

On the issue of the claim of the appellants being a cause of action in contracts, learned counsel submitted that even though there is a contract of employment between the parties, the claims of the appellant is for the interpretation of a statute as it affects their personal rights in the administration of the 1st respondent and not claim for damages. He concluded that if the claims of the appellants are based on contract, they could not commence their action by way of an originating summons. He therefore urged the court to dismiss the appeal.

Learned counsel to the 5th respondent submitted in his brief of argument that the appeal should be dismissed as the lower court was correct in holding that the claims are statute-barred. He referred to the admission of the appellants’ counsel that the 5th respondent is a public officer. He further submitted that the Decree 48 of 1992 statutorily charges the 5th respondent with the supervisory control of the 1st respondent in the following areas:

(a) In the area of investment of the finances of 1st respondent for expansion by way of establishing more campuses, colleges, etc he referred to section 3(1) (a) of the Decree, he therefore submitted that notwithstanding the provisions of section 6(1) of the Decree, the 4th respondent is under the direct control of the 5th respondent.

(b) In the area of the determination and fixation of the allowances and other expenses of members of the governing council of the 1st respondent. He referred to Section 6(7) of the Decree; and

(c) In the area of control over the activities and staff of the 1st respondent in the area of discipline, he also referred to section 14(1) of the Decree.

He finally submitted that section 19 (9) of the same Decree makes it clear that the decision of the Head of State (the visitor) is final with respect to discipline.

Learned counsel submitted that the defence provided by section 2(a) of the Public Officers Protection Act does not require good faith or malice to establish if the action is commenced outside the statutory period of three months provided by law. He relied on the case Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546 at 584. Learned counsel then submitted that the actions being challenged in this case occurred in 1988 and this matter was commenced in the year 2000. He therefore submitted that the action is statute-barred. Hence the consequences are the following:

(a) The plaintiffs have lost the right of action;

(b) They have lost the right of enforcement;

(c) They have irretrievably lost the right to judicial reliefs; and

(d) They only have an empty cause of action which no court will assist them to enforce.

He again referred to Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 10.

Learned counsel further submitted that the appellants’ submission concerning the issue of claim be founded in contract of service is completely misconceived. This, he stated, was because there is a difference between “contract of service” and “contract for service” which the Supreme Court held is not covered by section 2(a) of the Public Officers Protection Act. Section 2(a) of the law, he submitted, applied to contract of employment, which is contract of service as in the appellant’s case. He therefore urged this court to dismiss the appeal.

In order to appreciate the submissions of the learned counsel to all the parties a brief statement of the facts of this case is necessary. The appellants were employees in the employment of the 1st respondent. However, between 1997 – 1998, the 1st to 3rd respondents on the authority and orders of the 5th respondent dismissed the 7th – 15th appellants, issued warning letters to the 1st appellant, the 4th, 5th, and 6th appellants employment were terminated, while the 1st – 3rd appellants were placed on suspension. In addition, some fundamental administrative changes were effected by the said 1st – 3rd respondents under the authority of the 5th respondent.

By a letter dated 14th April, 1999, the 5th respondent wrote a letter to the 2nd respondent as follows:

“The Vice Chancellor,

University of Agriculture,

P.M.B.2373,

Makurdi.

REMOVAL OF PUBLIC OFFICERS

1. Kindly refer to circular No. TSR.02/197/T/140 dated 25th March, 1999 (copy) attached) which was received here on 14th April, 1999.
2. The names of the public officers affected in your university are enclosed for your implementation as stipulated in the circular.
3. Please note that “the effective date of removal of the affected officers is as prescribed by the instrument but not later than 30th April, 1999.
4. Thank you.

Signed

Lawrence H. V. Tsumba

For: Honourable Minister.”

The circular TSR.02/197/T/140 which was referred to in the letter quoted above stated as follows:

“Office of the Secretary to the

Federal Government of the Federation,

The Presidency, Federal Secretariat,

Shehu Shagari Way, Abuja.

Ref.TSR.02/197/7/140 Date 15th March, 1999

The Permanent Secretary,

Federal Ministry of Agriculture,

Abuja.

REMOVAL OF PUBLIC OFFICER ON DISCIPLINARY GROUND

The Head of State and Commander-in-Chief of the Armed Forces has approved the removal from the public service of officers who are known to have committed offences warranting removal by dismissal, termination or retirement. The affected officers, whose names are on the attached list are being removed under the Public Officers (Special Provisions) Decree No. 17 of 1984. Furthermore, the Head of State has delegated his powers under this Decree as follows:

(i) For officers on OL.07 – 17; Federal Civil Service Commission and the appropriate parastatals/agencies.

(ii) For officers on GL. 01 – 06; Ministries/Extra-Ministerial Departments and parastatals/agencies.

2. The modality of implementation is as follows:

(i) The Federal Civil Service Commission is to issue the appropriate letters of dismissal/retirement/termination, as the case may be, to the affected civil servants on GL. 07 -17 only.

(ii) Ministers are required to issue similar letters to only those of their affected staff who are on GL. 01 – 06.

3. The list of contract officers as well as officers who ought to have left the service on the ground of age or because they had served for 35 years before the circular Ref. No. SGF 17/Vol.iii/T/26 of 20th February, 1997 is also enclosed. They should be removed immediately.
4. The effective date of removal of the affected officers is as prescribed by the instrument but not later than 30th April, 1999 for an officer who absconded, the effective date of his removal is the date of the abscondment.
5. The Chairman, Federal Civil Service Commission, Permanent Secretaries and Head of Extra-Ministerial departments/parastatals/agencies are required to give this exercise the personal attention to ensure that it is completed on the due date.

Signed

Dr. Gidado Idris, GCON,

Secretary to the Government of the

Federation.”

The list attached to the 5th respondent’s letter which was made pursuant to the circular stated above contained the following. Dr. S. Ochair, A. I. Omokobi, M. N. Yaor and T. K. Yesufu as Nos. 12, 13, 14, and 34 respectively.

Those whose names were not on the list have either been dismissed or have their employment terminated by exhibit “C” between 1995 – 1998.

It was after these events had happened between 1995-1999, that the appellants commenced this action in 2000 (17th day of July, 2000).

Having stated the facts briefly above, it is therefore my duty to determine the followings:

(a) Were the respondents in this case public officers?

(b) If they were, did they act within their powers as provided by law and or as delegated to them by the appropriate authorities? and

(c) What are the legal consequences of filing this case after the expiration of 3 months from the date the cause of action arose.

Firstly, both parties are at ad-idem that the respondents are public officers and I have no cause to disagree with this fact and I so hold.

Secondly, both counsels have argued strenuously (both in favour and against) about whether the respondents acted within their legal powers.

The lower court in its ruling found as follows:

“It is very important to note that it is not in dispute that the termination of the appointments of the plaintiffs was conveyed to them vide their various letter of termination dated in September 1998 and also by the letter signed by the Secretary to the Government of the Federation (SGF) Dr. Gidado Idris dated 25/3/99 conveying their termination by the Head of State by virtue of Decree 17 of 1984 with effect from 30th April, 1999.”

I have carefully gone through the notice of appeal filed by the appellants there was no ground of appeal challenging this finding. It is now becoming trite law that where a finding of the lower court is not challenged on appeal this court has no power or jurisdiction to set it aside. This finding is therefore valid and subsisting.

However, this matter does not stop there, it will be necessary to know, the legal consequences if a servant being dismissed or having his employment terminated under Decree No. 17 of 1984. In the meantime, it is to be noted that the circular Issued by the SGF was made pursuant to the Public Officers (Special Provisions) Decree, 1984 No. 17 (Instrument For Dismissal, Removal And Retirement) of Certain Officer (Special Provisions) Decree, 1984.” issued by Gen. Abdulsalami Alhaji Abubakar – Head of State, Commander-In-Chief of Armed Forces of Federal Republic of Nigeria and dated 19th March, 1999.

Hence pursuance to section 3(3) of the Public Officers (Special Provisions) Decree of 1984, the lower court has no jurisdiction to entertain the claims of the set of appellants so dismissed or who had their employment terminated. See the case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688, (1990) 4 SCNJ 97; Shitta-Bey v. Attorney-General of the Federation (1998) 10 NWLR (Pt.570) 392, (1998) 7 SCNJ 224.

Another aspect of this case is the set of appellants whose letters of dismissal or termination of employment were signed with the approval of the 5th respondent. This, therefore, calls for the determination of whether the Public Officers Protection Act, Cap. 379 applies to the case. In determining this issue, it would be pertinent to have a recourse to the decisions of courts, particularly that of the Supreme Court to know how the said law had been previously applied.

Section 2(a) of the Public Officers Protection Act for the sake of clarity provides as follows:

“Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance of 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 proceedings 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 continuance of damage or injury, within three months next after the ceasing thereof.”

Having held that the respondents are public officers, the issue to decide first of all is whether the above stated provisions of the law applied to their respective offices. This has been settled in the case of Offoboche v. Ogoja Local Government (2001) 16 NWLR (Pt.739) 458 at 489, (2001) 7 SCNJ 462 at 486-487 where the Supreme Court, Per Ayoola, J.CA., held as follows:

“The question whether the Public Officers Protection Law applies to institutions is not being raised for the first time in this court. In the recent case of Ibrahim v. Judicial Committee, Kaduna State (1998) 14 NWLR (Pt. 584) 1 this court held that “any persons” in section 2(a) admits and includes artificial person.”

See also Permanent Secretary Ministry of Works Kwara State v. Balogun (1975) NSCC 292, it is therefore clear, without any doubt, that the respondents fall within the categories of persons protected by this law.

Secondly, do these classes of persons, particularly 1st, 2nd, and 3rd respondents loose the enjoyment of the protection of the law simply because they acted as agent of the 5th respondent, and in a broader sense, the visitor to the University? This issue too was decided in the case of Aiyetan v. N.I.F.O.R. (1987) 3 NWLR (Pt.59) 48 at 65-66, (1987) 6 SCNJ 36 at 52 where His Lordship Nnamani, J.S.C. as he then was (of blessed memory) held as follows:

“The Court of Appeal accepted proposition that the Public Officers Protection Law does not protect a public officer against his master; that it does not protect the appellants against the Federal Government or its agent on whose behalf the public officer was performing the duty. No authority was cited in support of this very wide proposition for, as the court rightly pointed out, Inspector General of Police v. Olatunji 21 NLR 52 which held that protection is only available to a public officer who does that act in good faith in the execution of his public duty, was not of any assistance. The Public Officers Protection Act, Cap. 168, Laws of Federation, which is in the same terms as the Bendel State Law to which reference was earlier made is an “ordinance to provide for the protection against actions of persons acting in the execution of the public duties.” I see nothing which would necessitate the exclusion of the Federal Government or any of its agents from the application of the Act.”

In view of the above, I hold that it is therefore irrelevant whether the public officer was acting on his own authority or as delegated to him and/or as agent of the Federal Government or any of its parastatals, provided he is a public officer, the provision of the law applies.

Thirdly, what is the scope of the applicability of this law were its provisions restricted to action carried out under a particular law, or any law in operation. In the case of Ekeogu v. Aliri (1991) 3 NWLR (pt.179) 259, (1991) 3 SCNJ 45 at 51, His Lordship Kawu, J.S.C. stated as follows:

“Now section 2(a) of the Public Officers Protection Law, Cap. 106 of the Laws of Eastern Nigeria, 1963 as relevant, reads 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.

In my view, the words used in this legislation are plain and unambiguous and should be given their ordinary and natural meaning. A careful reading of the section shows that its provisions apply to an action brought against a public officer for any act done either:

(i) In pursuance or intended execution of any law or public duty or authority, or

(ii) In respect of any alleged neglect or default in the execution of law, duty or authority.

The action must be instituted against the public officer before the expiration of the period of three months from the date of the commission of the act complained of. If the action is brought after three months, it will be unmaintainable.”

See also Obiefuna v. Okoye (1961) All NLR 357; (1961) 1 SCNLR 144.

From the above, it is apparent that the law is not restricted to action carried out under a particular law or intended execution of a particular law. It applies without limitation in any action carried out under any law in operation, or in respect of any public duty or authority. In the instant case, the appellants have restricted their submissions to alleged violation of the provisions of Decree No. 48 of 1992, without adverting their minds to the provisions of the Public Officers (Special Provisions) Act, Cap. 381 otherwise known as Decree No. 17 of 1984.

Finally, has elements of good or bad faith any role to play in the applicability of this law in question? In the case of Egbe v. Yusuf (1992) 6 NWLR (Pt.245) 1, (1992) 6 SCNJ (Pt. 2) 263 at 270 the Supreme Court per Kawu, J.S.C. held as follows:

“Now it is well established principle of interpretation that if the words used in a legislation are plain and unambiguous they should be given their natural ordinary meaning. See Okumagba v. Egbe (1965) 1 All NLR 62. It is therefore not the function of a Judge to import into a statute words which would do violence to the provisions of the law. I find no element of good or bad faith contained in this enactment. The law provides quite clearly that once it is shown that the act complained of was done by the officer in the course of his official duty, action “shall not lie unless commenced within three months.”

As earlier stated in this case, it is not in doubt that all the respondents are public officers, and the actions, and/or neglects complained of by the appellants were carried out by the respondents in the course of the performance of their official duties. It is also not disputed that this action was commenced after the expiration of the three months provided in the Public Officers Protection Act. My Lords, it is my considered view therefore that the action of the appellants is statute-barred, by reason of which the following legal consequences flow:

(a) The appellants have lost their right of action,

(b) They have lost the right of enforcement

(c) The appellants have irretrievable lost the right to judicial reliefs; and

(d) The appellants only have empty cause of action which not court, with respect, will assist them to enforce.

See the case of Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 4.

In the final analysis, this appeal fails and is hereby dismissed. The respondents deserved the judgment entered in their favour by the trial court. The decision of that court is quite faultless and unassailable same is hereby affirmed. Costs is assessed at N3,000.00 in favour of the respondents against the appellants.

---

Other Citations: (2002)LCN/1216(CA)