Rahamaniyya United Nig. Ltd. V. Ministry for Federal Capital Territory & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
ABDU ABOKI, J.C.A.
This is an appeal against the Ruling of the Federal High Court, Abuja delivered by A. I. Chikere J. on the 4th day of March, 2005.
The facts of the case are briefly stated as follows; The Plaintiff/Appellant claimed to have been given a letter of offer otherwise called a letter of Grant/Conveyance of approval dated 4th January, 1995 for Plot Nos, 216, 217, 218, 219, 225, 226, 227 and 228 within Wuye District, Abuja. The Plaintiff/Appellant also claimed that he wrote a letter of acceptance to that offer and forwarded it to the 2nd Respondent but could not commence any meaningful development on the plots because infrastructures were not yet in place. However, on site inspection of the plots on 18th October 2000, the Appellant’s Solicitors and staff discovered that the 4th Respondent have taken possession of a part of the plots and were digging foundation with the intention of commencing development. Thereafter, the Plaintiff/Appellant instituted this action at the trial Court challenging the validity of the allocation of the plots to the 4th Respondent by the 1st- 3rd Respondents.
The 1st-3rd Respondents raised a preliminary objection to the hearing of the suit on the ground that it is statute barred under Section 2(a) Public Officers Protection Act, Cap 379 LFN 1990 since the Plaintiff/Appellant’s cause of action arose on 18th October 2000 when he discovered that the plots were encroached. The Preliminary objection was upheld by the learned trial Judge.
The Plaintiff/Appellant being dissatisfied with the Ruling of the trial Court appealed to this Court. The Appellant’s Brief of Argument was dated and filed on the 14th day of August 2006, while the Respondent’s Brief of Argument dated the 24th day of October, 2007 was filed on 26th October 2007. The Appellant’s Reply Brief was filed on the 18th day of March, 2008.
The Appellant from his three Grounds of Appeal distilled five issues for determination in this Appeal as follows:
“1. Whether or not the learned trial judge was right to hold that the wrongful act of the 1st-3rd Respondents occurred on the 18th October 2000 and completed on the same date when the Respondents did not place any fact before the Court to justify this finding.
- Whether the provisions o/Section 28(6) & (7) o/the Land Use Act Cap 202 Laws of the Federation 1990 and or Section 44(1) of 1999 Constitution envisage an indirect revocation or withdrawal of a citizen’s title to land. In other words, whether a citizen’s title to land can be revoked without a notice first made in writing and sent to such citizen before the same subsisting allocation is given to another person.
- And if the answer to question No.2 is in the affirmative, whether non compliance with the provisions of Section 28(6) & (7) of the Land Use Act and or violation a/Section 44(1) of 1999 Constitution by a public officer as in the instant case, the 1st-3rd Respondents does not amount to abuse of office or violation of statutory duties sufficient enough to rob off them the protection offered by Section 2(a) of the Public Officers Protection Act Cap 379 Laws of the Federation 1990.
- Whether or not the learned trial judge was bound to consider the date when the event giving rise to the cause of action came to the knowledge of the Appellant in the determination or calculation of the mandatory 3 months period for the purpose of ascertaining whether a public officer is protected by Section 2(a) of the Public Officers Protection Act or not.
- What is the nature of the relationship between the Appellant and the Respondent?”
The Respondents on their part formulated a lone issue for determination and it is adumbrated as follows:
“Whether this action is maintainable against the 1st-3rd Respondents in view of the provisions of Section 2(a) Public Officers Protection Act, Cap 379, LFN 1990.”
After a careful perusal of the issues raised by the parties for determination in this Appeal, I observe that five (5) issues were formulated or distilled from the three (3) grounds of Appeal filed by the Appellant. It is most improper in law for a party to distil more issues than the grounds of Appeal filed. See:
Adedipe v. Theophilus (2005) 16 NWLR Pt. 951 page 250 at 261;
Kalu v. Ohuabunwa (2004) 7 NWLR Pt. 871 page 1;
UBA Ltd. v. Mode (Nig.) Ltd. (2001) 13 NWLR Pt. 730 page 335;
Iweka v. SCOA (2000) 7 NWLR Pt. 664 page 325.
Issues formulated must correlate and married with the grounds of Appeal. An issue for determination ordinarily may be formulated or distilled from one or more grounds of Appeal. Where there are more issues than the grounds of Appeal, that is said to be proliferation or prolixity of issues in a brief of argument. The Court merely rebukes or cautions the Counsel guilty. The party does not serious sanction or penalty. The prolix issues will only be discountenanced as going to no issue. The Court will regard them merely as excess load. See: UPS Ltd. v. Ufot (2006) 2 NWLR Pt. 963 page 1 at 11;
Eze v. Nwaubani (2002) 7 NWLR Pt.818 page 50 at 62-63;
Isbon v. State (2002) 3 NWLR Pt. 754 page 271;
Consolidated Breweries Plc. v. Aisonuevan (2001) 15 NWLR Pt. 736 page 424.
However notwithstanding the fact that issues for determination may be prolix, the Court has a duty to consider the Appeal on its merit. I also observe that issues 2 and 3 as couched by the Appellant are too wide and does not seem to address the dispute between the parties in this Appeal. In Shanu v. Afribank (Nig.) Plc. (2002) 17 NWLR Pt. 795 page 185, the Court held that:
“An issue for determination in an appeal that is too wide is liable to be struck out. Such an issue is not fit for deliberation by an appellate Court whose duty is to consider in what aspect and manner a lower Court has been in error, if at all.”
Issues 2 and 3 formulated by the Appellant in this Appeal for the reason of being too wide and having not reflected the proper dispute between the parties are hereby struck out.
Where there is a prolixity of issues, the Court of Appeal is free to either adopt the issues formulated for determination by the parties or to formulate such issues as are consistent with the grounds of Appeal. The Appellate Court takes disfavourable view of proliferation of issues for determination formulated from grounds of Appeal and frown at such practices. The principle governing the formulation of issues for determination is that a number of grounds could where appropriate be formulated into a single congruent issue and it is patently undesirable to split the issue in a ground of Appeal. See:
Labuji v. Anretiol (1992) 8 NWLR Pt.258 page 139 at 159;
Dung v. Gyang (1994) 8 NWLR Pt.362 page 315.
The Appellant’s remaining issues 1, 4 and 5 can be conveniently condensed into a single issue. I however prefer the issue as formulated by the Respondents and I adopt same for the determination of this Appeal. It reads;
“Whether this action is maintainable against the 1st – 3rd Respondents in view of the provisions of Section 2(a) Public Officers Protection Act Cap. 379, LFN 1990”.
The learned Counsel for the Appellant, Mr. Adekola Mustapha submitted that the learned trial judge was wrong when he held that Plaintiff’s right of action is extinguished after 3 months from 18/10/2000 and thereby dismissed the suit for lack of jurisdiction.
He argued that up to the time of the institution of the case at the lower Court, the Appellant was not in any position to know with accurate precision when the alleged wrongful act of the 1st – 3rd Respondents could be said to have accrued for the purpose of determining the 3 months grace period provided by the Public Officers Protection Act.
Learned Counsel for the Appellant contended that as for the 4th Respondents the alleged wrongful act accrued or commenced on or about the 18th October, 2000 when the Appellant sighted the encroachment but that the same dale cannot be imputed to the 1st-3rd Respondents because there was no official communication whatsoever either from the trespassers or the 1st-3rd Respondents to the Appellant even by way of defence before the Court to show when the alleged wrong was committed.
He submitted that the decision of the learned trial judge is hasty, premature and unsupported by facts.
Mr. Adekola Mustapha maintained that the learned trial Judge had a duty to consider and determine the date when the event giving rise to the Plaintiff’s cause of action arose against the Defendants for the purpose of determining or calculating the 3 months mandatory period provided by the Public Officers Protection Act. He referred the Court to the cases of;
Ibrahim v. Kaduna Judicial Service Commission (1998) 14 NWLR Pt. 584 Page 1;
Abubakar v. Governor of Gombe State (2002) 17NWLR Pt. 797 Page 533.
Learned Counsel argued that the learned trial judge was wrong to assume that the alleged wrongful act of the 1″ – 3rd Respondents arose on the same date the alleged wrongful act of the 4th Respondents arose.
Mr. Adekola Mustapha maintained that the purpose of the Public Officers Protection Act is designed to protect the officer who acts in good faith and does not apply to officer who acts in abuse of office and with no semblance of legal justification.
Learned Counsel for the Appellant, Mr. Adekola Mustapha insisted that it is not in dispute that the 1st-3rd Respondents are public officers or that they were performing or actually performed a public duty when they allegedly revoked or allocated the plots in issue to the ‘persons unknown’, He argued that the issue is whether the public duty was properly carried out or whether indeed any law was violated or whether they abused their position in the course of carrying out the ‘so called public duty’.
He invited the Court to examine the provisions of the Land Use Act which governs the exercise of the 1st-3rd Respondents on the issue relating to land matters and in particular Section 28(1) and Section 28(5) of the Land Use Act and Section 44(1) of the 1999 Constitution to see whether the Respondents complied with that provision.
Mr. Adekola Mustapha submitted that in the instant case, there is nothing before the Court which shows that the Defendants/Respondents had complied with the above provisions before the purported allocation was made in favour of the 4th Defendant/Respondent. He contended that the acts of the 1st-3rd Respondents as claimed by their Counsel are wrongful, Unlawful and contrary to the provisions of the Land Use Act. He referred the Court to the cases of:
Ibafon v. Nigeria Ports Plc. (2000) 17 WRN 56 at 60;
Jegede v. Citicon (2001)] WRN Page 1 at 5.
Learned Counsel for the Appellant argued that the ‘so called public duty of the 1st-3rd Respondents is the act of indirect revocation, then the 1st-3rd Defendants/Respondents have acted outside the colour of their office and should lose the protection of the Public Officers Protection Act. He referred the Court to the cases of:
Ogieva v. Igbinedion (2004) 14 NWLR Pt, 894 Page 467 at 485-486;
F.G.N. v. Zebra Energy Limited (2002) 18 NWLR Pt. 798 Page 163 at 175.
He contended that the law that gave the Respondents the authority to allocate and revoke or withdraw allocation of plot made in FCT is the Land Use Act and since they have failed to comply with the law giving them such powers, they cannot be entitled to be protected.
Learned Counsel for the Appellant submitted that the nature of the relationship between the Appellant and the 1st-3rd Respondents is based on contract. He insisted that the Appellant was given an offer of terms and Grant/Conveyance of Approval on 14th January 1995 which contains certain contractual terms and which the Appellant properly accepted. He referred the Court to pages 8-9 of the Record of Appeal.
He submitted that it is the Law that Public Officers Protection Act does not apply to cases of contract and referred to the case of FGN v. Zebra Energy Ltd. (supra),
Mr. Adekola Mustapha further submitted that the essential ingredients of contract are offer and acceptance and once these are found to have taken place, contract is said to have been formed.
He maintained that if the Court finds that documents at Pages 8-9 of the Record on the face of it are Contractual documents, then the Public Officers Protection Act would not apply to the instant case.
Learned Counsel for the Appellant urged the Court to resolve the issue in favour of the Appellant and set aside the judgment of the lower Court for reasons canvassed above.
In reply to the submissions of the Appellants, Learned Counsel for the 1st-3rd Respondents, Mr. F. C. Obiamalu states that a cause of action arises when there is a concurrence of facts giving rise to enforceable claims. He referred the Court to the case of Elebanjo v. Dawodu (2006) 15 NWLR Pt. 1001 Page 76 at 122.
He submitted that sometime in February 2000 when the Appellant became aware that his plot has been re-allocated to another person that was when the Appellant’s cause of action arose and crystallized on 18th October, 2000 when he discovered the 4th Respondent on the land digging foundation with the intention of commencing development. Learned Counsel further maintained that the accrual of a cause of action is when the aggrieved party can begin to maintain his cause of action and referred the Court to Owie v. Ighiwi (2005) 5 NWLR Pt. 917 Page 184 at 214.
Mr. F. C. Obiamalu argued that in an action caught by limitation law, it is irrelevant whether parties joined issues on the matter and that the question of proof of any averment in the Plaintiff! Appellant’s Statement of Claim is immaterial.
Learned Counsel for the 1st – 3rd Respondents maintained that Statement of Defence is of no probative value in determining in limine whether or not a suit is statute barred. He referred the Court to Wochem v. Emereuwa (2004) 13 NWLR Pt. 890 Page 398 at 419.
He argued that the Appellant recognized that the plot has been allocated to another person, hence he closed his pleading with the statement that the other person’s right was not proper because due process was not followed and his own right still subsists.
Mr. F. C. Obiamalu maintained that the power of the 1st-3rd Respondents to grant allocation is statutorily provided in Section 5(1)(a) Land Use Act and that an exercise of a statutory power cannot be held to be invalid. He referred to the case of Dabo v. Abdullahi (2005) 7 NWLR Pt. 923 Pt.181 at 200.
Learned Counsel for the 1st-3rd Respondents submitted that the argument as to whether or not the Appellant’s alleged prior existing rights have been extinguished is not relevant to this Appeal as it deals with the merits of the substantive matter and should thus be discountenanced.
Mr. F. C. Obiamalu argued that the propriety or otherwis8 of the act is not a relevant consideration for the applicability of the Public Officers Protection Act.
He referred the Court to the cases of:
Chigbu v. Tonimas (Nig.) Ltd. (2006) 9 NWLR Pt. 984 Page 189 at 210;
Egbe v. Alhaji (1990) 1 NWLR Pt. 128 Pg 546 at 584;
Ekunola v. CBN (2006) 14 NWLR Pt. 1000 Pg 292 at 324;
NPA Plc. v. Lotus Plastics Ltd. (2005) 19 NWLR Pt. 959 Pg.158 at 210;
Elebanjo v. Dawodu (supra).
He argued that Appellant’s contention that the cause of action of the 1st-3m Respondents did not accrue at the same time with that of the 4th Respondent is incongruous and unfounded as the Respondents were sued jointly thereby positing that they have a joint cause of action and interest. He cited the provisions of Order 13 Rule 3 Federal High Court (Civil Procedure) Rules 2000.
Learned Counsel for the 1st – 3rd Respondents maintained that a cause of action matures or arises on a date when a breach of any duty or act occurs which warrants the person thereby injured by such to institute a legal action in assertion/protection of this legal right that has been breached.
Mr. F. C. Obiamalu submitted that the action which gave rise to this Appeal was filed by the Plaintiff/Appellant against the Respondents herein jointly on 22nd March, 2004. Learned Counsel pointed out that the status of the Respondents and their functions vis-a-vis the subject matter of the suit was described in paragraph 2 of the Statement of Claim while the main grievance of the Appellant which is his discovery of the allocation of the plot to another person in February 2000 and the commencement of development thereon by the allottee on 18th October, 2000 was averred in paragraphs 10, 13 and 15 of the Statement of Claim. He argued that from the above averments, the subject matter of the suit is the allocation of the Plot.
Learned Counsel maintained that the correct legal position is that where parties are sued jointly as Defendants they have a common interest and cause of action and as such their case usually collapse or succeed jointly. He referred the Court to the case of Kadzi Int’l Ltd. v. Kana Tannery Co. Ltd (2004) 4 NWLR Pt. 8634 Pg 545 at 574.
He submitted that the Appellant’s Counsel misguided himself under the mistaken belief that the subject matter of the suit is revocation and compulsory acquisition and thus over-relied on Sections 28 and 44 of the Land Use Act. He maintained that revocation and/or acquisition is not an issue in this suit as neither was raised in the Appellant’s relief either in the Writ of Summons or the Statement of Claim. The Court was referred to the cases of:
Egbe v. Adefarasin (1987) 1 NWLR Pt. 47 Page 1;
Aremo II v. Adekanye (2004) 13 NWLR Pt. 891 Page 572 at 593.
Mr. F. C. Obiamalu argued that the Appellant’s reliance on the case of FGN v. Zebra Energy Ltd. (supra) which is purely based on specific contract misled him into believing that the transaction which gave rise to this suit is contractual. He maintained that 1st-3rd Respondents exercised the powers conferred on them by Section 297(2) of the 1999 Constitution, Sections 5(1) and 52 of the Land Use Act and Sections 1(3), 4 and 18 of the FCT Act by performing the act giving rise to the Suit.
He submitted that “any action” as contained in Section 2(a) Public Officers Protection Act is one arising out of any act done in pursuance or execution of any Act or Law or of any public duty undertaken by Respondents or its staff. See
Umukoro v. NPA (1997) R NWLR Pt.502 Page 656;
Odediran v. NPA (2004) 7 NWLR Pt, 872 Page 230 at 237.
Learned Counsel for the 1st – 3rd Respondents maintained that the 1st-3rd Respondents were unarguably sued for an act allegedly done or omitted to be done in the course of their official statutory duties and are thus entitled to the protection of the Public Officers Protection Act. He cited the cases of:
NPA Plc. v. Lotus Plastics Ltd. (supra) at 2002;
Ambode v. Ministry of Foreign Affairs (2004) 14 NWLR Pt.894 Page 506 at 523.
He argued that an appraisal of the Appellant’s Statement of Claim will show that no contract was pleaded and none was proved to have been entered into between the parties in respect of the transaction giving rise to this Suit. He referred to the cases of:
NPA Plc. v. Lotus Plastics Ltd. (supra) at 2002;
Odediran v. NPA (supra) at 241.
Mr. F. C. Obiamalu pointed out that the Appellant in his Brief insinuated fraudulent concealment on the part of 1st-3rd Respondents but he submitted that there is no paragraph in the Statement of Claim where the Appellant specifically pleaded the fraud. He maintained that the law is settled that allegations of fraud must be specifically pleaded with particularity and proved and referred the Court to the case of Tor-Tiv and Anor v. Wombo & 2 others (1996) 9 NWLR Part 471 Page 161 at 174.
Learned Counsel for the Respondents argued that the Appellant did not argue that the action was filed within the statutory period but complained that the action should have proceeded to trial and evidence led before the issue of whether not the action is statute barred could be determined rather than resolving it in limine. He maintained that this is a misconception of the basic and fundamental principle in limitation of actions and submitted that when an action is said to be statute barred, what is of paramount consideration is the determination of when the cause of action accrue and when it became statute barred and not the merits of the case.
Mr. F. C. Obiamalu maintained that where actions are brought against public officials, they must be brought quickly, that is within 3 months as provided by Section 2(a) Public Officers Protection Act so as to protect Public Officers from being distracted or submerged in a sea of litigation usually at the instance of professional litigants. He cited the cases of:
Worchem v. Emereuwa (supra) at 415;
Mohammed v. Military Administrator, Plateau State (2001) 16 NWLR Pt. 740 Page 524 at 545-549.
In conclusion, Learned Counsel for the 1st – 3rd Respondents submitted that all the Respondents needed to show is that the action was not instituted before the expiration of the three (3) months prescribed by the Public Officers Protection Act and the Respondents showed it.
In his reply on point of Jaw to the submissions of the Learned Counsel for the 1st – 3rd Respondents, Learned Counsel for the Appellant Mr. Adekola Mustapha argued that the Law is that in an application by way of Preliminary objection for dismissal of a suit in limine, where the Defendant relies only on the facts stated by the Plaintiff in his Writ of Summons and Statement of Claim, the Applicant is deemed to have admitted the facts as stated by the Plaintiff. He referred to the case of Worchem v. Emereuwa (supra) at Page 419,
Learned Counsel maintained that the position therefore is that the Appellant’s contention that his Plot “was revoked” without due process of Law was well admitted by the Respondents.
Mr. Adekola Mustapha pointed out that the Respondents in paragraph 4.7 at page 4 of their brief submitted that though their act was outside the colours of their office (illegal) that alone is not enough to make them lose the protection of the Act. Learned Counsel submitted that this cannot be the true position of the Law as the Public Officers Protection Act cannot be used to condone illegality. He referred to the case of Offochoe he v. Oguja Local Govt. (2001) 16 NWLR Pt. 739 Pg 458.
He further maintained that a party cannot be allowed to take benefit of rus illegality. He cited the cases of:
Sosan v. H.F.P. Eng. (Nig.) Ltd. (2004) 3 NWLR Pt. 861 Page 546;
Kwajaffa v. B.O.N. Ltd. (2004) 13 NWLR Pt.889 Page 146.
In the present case the Appellant sued the Ministry of Federal Capital Territory, the Han. Minister for F.C.T., the Federal Capital Development Authority and All Persons Now Unknown.
The claim of the Plaintiff/Appellant as can gleaned from its statement of claim on page 7 of the Record of Appeal reads:
“WHEREOF the Plaintiff claims against the Defendants as follows:
(a) A declaration that the Plaintiff is the allotee of plots 216, 217, 218, 219, 225, 226, 227 and 228 located at Wuye district, Abuja.
(b)A declaration that the Plaintiffs letter of offer of terms of grant/conveyance of approval datell 4/1/95 in respect of plot No. 216, 217, 218, 219, 225, 226, 227 and 228 within Wuye District is valid and subsisting and that any purported allocation of all or any part of the plot to any individual or organisation is illegal, wrongful, null and void.
(c) A declaration that the Plaintiff is entitled to the statutory right of Occupancy to the following plots located within Wuye District, Abuja, plots 216, 217, 218, 219, 225, 226, 227 and 228.
(d) A perpetual injunction restraining all persons now unknown claiming allocation or offer/conveyance of approval or ownership of all or any of the following plots Nos. 216, 217, 218, 219, 225, 226, 227 and 228 Wuye District, Abuja from developing or committing any act of trespass on the plot.
(e)An order directing the 1st, 2nd and 3rd Defendants to resume and or continue or initiate the processing of the Plaintiff’s application for a statutory right of occupancy.
(f) An order of perpetual injunction restraining the 1st, 2nd and 3rd Defendant from processing and issuing certificate of occupancy in respect of any of the plots in favour of any other person except the plaintiffs.”
Before the commencement of hearing into the matter, a Notice of Preliminary objection was filed on behalf of the 1st, 2nd and 3rd Defendants/Respondents challenging the jurisdiction of the trial Court to hear the suit against them on the ground that the suit is statute barred.
The general principle of Law is that where the Law provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to the Plaintiff, proceeding shall not be brought after the time prescribed by Statute.
See Obicfuna v. Okoye (1961) 1 All NLR 357.
An action brought outside the prescribed period offends against the provision of the Section and does not give rise to a cause of action. A cause of action means the factual situation stated by the Plaintiff which if substantiated entitles him to a remedy against the Defendant. The claim of the Plaintiff must rest on and be supplied by the cause of action. See
Egbe v. Adefarasin (985) 1 NWLR Pt. 3 page 549 at 568;
Onyejekwc v. The Nigerian Police Council (1996) 7 NWLR Pt. 463 Page 704 at 712.
In my opinion, the crucial issue for determination in this Appeal is whether the learned trial judge was right in his decision that the 1st, 2nd and 3rd Respondents are protected from any suit by virtue of the provisions of Section 2(a) of the Public Officers Protection Act Cap 379 of the Laws of the Federation of Nigeria, 1990.
Section 2 (a) of the Act is hereby reproduced thus:
“Where any action, prosecution or other proceedings commenced against any person for any act done in particular or execution or intended execution of any Act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect –
(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof;
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharged of such person from prison.”
In order that a party may be protected by the provisions of Section 2(a) of the Public Officers Protection Act, it has to be established that the party against whom the action was commenced was a public officer and that the act done by him in respect of which the action was commenced was an act done in pursuance or execution of any law or of any public duty. See:
Fokolade v, Public Service Commission (1993) 1 NWLR Pt. 27J page 639 at 643-644;
Ekeogu v. Aliri (1990) 1 NWLR Pt, 126 page 245.
A public officer is any person who is directly employed in government, public service, civil service or any public agency. See:
Okomu Oil Palm Co. v. Iserhienrhien (2001) 6 NWLR Pi. 710 page 660;
Eze v. Okechukwu (2002) 18 NWLR Pt. 799 page 348.
The protection offered by the Public Officers Protection Act covers and protects all public officers, that is, all civil servants in their individual capacity and all government bodies, public institutions and agencies, ministries, and departments, by whatever name called and whether corporate or unincorporated.
See Ibrahim v. Judicial Service Commission (1998) 14 NWLR Pt. 584 page 1.
The Act also limits their liability to a three month period from the date the cause of action arose or from the date the cause of action ceased if it was a continuous act, except where any other statute has modified the position, such as by enlarging the limitation period to extend beyond three months or where any other limitation specifically applies.
The propriety or otherwise of the act of the Defendants is not a relevant consideration for the applicability of the Public Officers Protection Act. In Chigbu v. Tonimas (Nig.) Ltd. (2006) 9 NWLR Pt. 986 Page 189 at 210, Oguntade JSC stated thus:
“…..I do not see that it is within our power to dance around the issue.
It is not for us to consider whether or not the Plaintiffs/Respondents have been fairly treated. Our duty is to ascertain-the intention of the lawmaker from the words he used. Once we have done that, we are in duty bound to give effect to it regardless of the consequences.”
See also; Egbe v. Alhaji (1990) I NWLR Pt. 128 Page 546 at 584;
Ekunola v. C. B. N. (2006) 14 NWLR Pt. 1000 Page 292 at 324;
NPA Plc v. Lotus Plastics Ltd. (2005) 19 NWLR Pt.959 Page 158 at 210;
Elebanjo v. Dawodu (supra) at Page 15.
If an action against a Public Officer or Public Institution and Organisation is statute barred having not been brought within the period of three months prescribed by the Public Officers Protection Act, there will be no basis for investigating the conduct of the Public Officer which gave rise to the action. The conduct of the Defendant as to whether he was malicious or not is irrelevant in determining whether the cause of action is statute barred under Section 2 of the Public Officers Protection Act, See:
Egbe v. Adefarasin (1987) 1 NWLR Pt. 47 Page 1;
Aremo II v. Adekanye (2004) 13 NWLR Pt. 891 Page 572 at 593.
In the instant case since the issue before the trial Court which is the subject of this Appeal relates to whether the suit is statue barred, the trial Court has no business in investigating the issues of revocation and/or acquisition of the land in dispute. This is moreso since such matters are not issues in the Statement of Claim and in the reliefs claimed.
In the Brief of Argument filed on behalf of the Appellants, it is conceded that the 1st, 2nd and 3rd Respondents are public officers and that the provision of Section 2(a) of the Act applies to them where they act in good faith in the execution of a public duty.
A cause of action ripens or arises on a date when a breach of duty or act occurs which warrants the person aggrieved or injured by such breach of duty or action to institute a legal action to assert or protect his legal right which has been breached or violated.
A cause of action is defined in the case of Elebanjo v. Dawodu (2006) 15 NWLR Pt. 1001 Page 76 at 122 thus;
“a combination of facts and circumstances giving rise to the right to file a claim in Court for remedy. It includes all those things which are necessary to give a right on action and every material to be proved and to entitle the Plaintiff to success.
In the instant case, the cause of action giving rise to the present case could be said to have arisen either in February 2000 or 18th October 2000, However, the Plaintiff/Appellant went to Court to complain about the infringement to his propriety right by the Defendants/Respondents on 22nd March 2004 when he filed an action against them jointly before the Federal High Court Abuja.
It has been contended on behalf of the Appellant that the cause of action giving rise to the case in the instant Appeal did not accrue at the same time. That the cause of action giving rise to the claim against the 1st, 2nd and 3rd Respondents arose in February 2000 when the agents of the Appellant discovered that part of the plots of land allocated to the Appellant has been re-allocated to the 4th, Respondent, while the cause of action with regard to the claim against the 4th Respondent arose on 18th October 200 when some labourers were scen digging the said plot of land with the intention of erecting foundation on it.
However at the trial Court the Appellant presented a joint claim against all the Respondents at the trial Court which indicate that the Respondents have a common interest in the dispute and that the cause of action arose at the same time.
It is trite that parties can only be sued jointly as Defendants when they have a common interest and cause of action. In such circumstance their case usually succeeds or collapses jointly. It has been held in the case of Kadzi International Ltd. v. Kano Tannery Co. Ltd. (2004) 4 NWLR Pt. 863 Page 545 at 574, per Salami JCA:
“Where there is a joint cause of action against two (2) or more persons, a discharge as against one of them operates as a discharge of all, the cause of action being one, having been discharged all persons otherwise liable are consequently released.”
The provisions of Section 2(a) of the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria 1990 stipulates that any action, prosecution or other proceedings commenced against any person on account of any act done in pursuance or execution or intended execution or alleged neglect or default in the execution of any legislation, public duty or authority shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in case of a continuance of damage or injury within three months next after the ceasing thereof.
The 1st, 2nd and 3rd Respondents in the instant case having been sued for an act allegedly done or omitted to be done in the course of their official statutory duties are entitled to protection under the Public Officers Protection Act Cap 379 Laws of the Federation 1990.
In NPA Plc v. Lotus Plastics Ltd. (supra) at 188, per Mohammed JSC:
“In this respect, I am of the firm view that the duty performed by the appellant by the appellant in this transaction between it and the 1st Respondent in relation to the Tata Bus imported by the 1st Respondent was carried out in the course of execution or in pursuance of execution of an enactment of an enactment or public duty or authority of the appellant. The transaction therefore comes squarely within the provisions of Section 72(1) of the Nigerian Ports Decree No. 74 of 1993. To this end, the appellant’s objection to the 1st Respondent’s claim rooted in the limitation of action prescribed under the section is clearly well founded.”
See Ambode v. Ministry of Foreign Affairs (2004) 14 NWLR Pt. 894 Page 506 at 523.
In the instant case, whichever of the dates February 2000 or 18th October 2000 is taken as the dale when the cause of action arose, it look the Plaintiff/Appellant four years or three years and four months to commence action against the Respondents on account of the execution of their public duty. Time has elapsed for bringing the action against the 1st, 2nd and 3rd Respondents who are public officers, consequently the action is statute barred. The learned trial judge in his ruling at page 50 of the Record of Appeal said:
“In the instant case, the acts complained about are that the 1st, 2nd and 3rd Defendant and whose acts arose on 18/10/2000. The acts were completed on 18/10/2000 and not continuous as submitted by the Plaintiff’s Counsel. The Public Officers (Protection) Act as the law indicates is a law to protect Public Officers against action in the performance of their public duties. The present suit brought after the statutory period of 3 months as provided for by low is totally barred as the right of the Plaintiff to commence the action has been extinguished by the low. Like I have earlier on held, the 1st, 2nd and 3rd Defendants are public officers and the acts complained of are those done in the performance of their Statutory/Public duties.
I disagree with the Plaintiff’s Counsel submission that the Defendants acted outside their Statutory duties and so can be sued outside 3 months. The Plaintiff’s right of action extinguished after 3 months from 18/1012000. The suit is accordingly dismissed for lack of jurisdiction on this Court.”
The Appellant has not advanced any useful argument from the content of its Brief of Argument to warrant disturbing this finding of the trial Court, the ruling is therefore upheld. I also see no merit in this Appeal and it is hereby dismissed.
There is no order as to costs.
Other Citations: (2008)LCN/3030(CA)
