ALH. FARUK MAITURARE v. HON. AMINU WAZIRI TAMBUWAL & Ors
(2010)LCN/3755(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of April, 2010
CA/S/113/2009
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
ALH. FARUK MAITURARE Appellant(s)
AND
1. HON. AMINU WAZIRI TAMBUWAL
2. PEOPLE DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
RATIO
WHETHER OR NOT A PUBLIC OFFICER IS PROTECTED WHEN HIS ACT IS NOT REASONABLY CONNECTED WITH THE LAWFUL EXERCISE OF HIS AUTHORITY
Now Section 2 (a) of the Act, provides as follows :-
“2 (a) 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 Act or law or of any public duty or authority or in respect of any alleged neglect or default in the execution.
(a) The action, prosecution, or proceeding shall not be 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.” PER BELGORE, J.C.A.
AHMAD OLAREWAJU BELGORE, J.C.A. ( Delivering the Leading Judgment): The Appellant herein filed a civil action, as a plaintiff, at the Federal High Court, Sokoto against three defendants who are now the Respondents claiming the following reliefs :-
“1. A declaration that the substitution of the plaintiff with the 1st Defendant by the 2nd Defendant as its candidate for the election into the Tambuwal/Kebbe Federal Constituency of Sokoto State for the April 2007 election is unlawful, wrongful, illegal, null and void.
2 A declaration that the substitution or replacement of the Plaintiff by the 3rd Defendant on a letter of substitution from the 2nd Defendant for the Tambuwal/Kebbe Federal Constitution of Sokoto State for the April 2007 election is unlawful, wrongful, illegal, null and void.
3. A declaration that the return and declaration of the 1st Defendant as duly elected member representing Tambuwal/Kebbe Federal Constituency in Sokoto state is unlawful, wrongful, illegal, null and void.
4. A declaration that the Plaintiff’ is the due and lawful candidate/aspirant of the 2nd Defendant having been returned unopposed at the House of Representatives primary Congress of November 25, 2006 for the Tambuwal/Kebbe Federal Constituency and same submitted to the 3rd Defendant as its candidate for the 2007 House of Representatives Election.
5. A declaration that the Plaintiff is the lawfully and duly elected member of the House of Representative in the 2007 General Election representing the Tambuwal/Kebbe Constituency of Sokoto State on the platform of the 2nd Defendant and not the 1st Defendant
6. An order of this Court directing/Compelling the 3rd Defendant to issue a Certificate of return to the Plaintiff as the duly elected member of the Federal House of Representatives representing Tambuwal/Kebbe Federal Constituency of Sokoto State in the 2007 General Elections.
That was the Appellant’s claim, before the Federal High Court, Sokoto (now referred to as “The lower Court”), both in his writ of summons and the statement of claim filed on the 29th day of January, 2008.
1st and 3rd Respondents filed pleadings and raised preliminary objection to the suit as constituted. The main plant of their objection was that the action was filed in violation of the provision of Section 2 (a) of the Public Officers (Protection) Act, Laws of the Federation, 1990.
The lower court took submissions from counsel in respect of the preliminary objection and in a considered ruling, held that it had jurisdiction as against an election tribunal to entertain the Appellant’s claim. On the vexed issue of the action being statute barred, the learned trial Judge held, inter alia, that-
“I can see vividly a case of tardiness and even perhaps a complacency which might have lately been rudely shaken by the far reaching decision in AMAECHI’S case.”
The lower court concluded in the following terms:-
“In the instant case, the Plaintiff has alleged that his name was substituted about one and half month to the election, which means his name was substituted about 45 days to the election which took place in April. The Plaintiff’s cause of action accrued from the date of substitution and the period for the purpose of limitation began to run from that date. His right of action, in my view, had 45 days after the conduct of the election. He did not bring this action within this period until after five and half months after his cause of action has extinguished. No doubt he had indulged in dilatoriness, a fatal procrastination that consumed his right of access to court and for this delay his action must succumb to an ultimate perdition. He has no cause of action left and his case must be dismissed and it is so dismissed.”
It is against this decision that the instant appeal has been brought.
Two grounds of appeal were filed along with the notice of appeal. The two grounds read thus :-
“1. The learned trial Judge erred in law when he held “His right of action in my view had 45 days after the conduct of the election, he did not bring his action within this period until after five and half months after his cause of action has been extinguished”, thereby occasioning a miscarriage of justice.
PARTICULARS OF ERROR
(A) It is the law that in determine whether a suit is statute barred or not, the only Process to be construed are the writ of summons and statement of Claim
(B) The instant action was predicated on an alleged substitution, removal or replacement of the Plaintiff/Appellant as a candidate of the 2nd Defendant/Respondent for the Tambuwal/Kebbe Federal Constituency.
(C) Nowhere did the Writ of summon or removal was carried out.
(D) The claim of the Plaintiff/Appellant is solely on who was the candidate of the 2nd Defendant/Respondent for the Tambuwal/Kebbe Federal Constituency of Sokoto State for the April 21st, 2007 election and not on who won votes in the said election.
(E) The trial court was under obligation to investigate the date of substitution, replacement or removal of the Plaintiff/Appellant as the candidate for Tambuwal/Kebbe Federal Constituency of Sokoto State.
(F) That the trial courts finding in the absence of a date stated in the Writ of Summons or Statement of Claim was speculative.
(G) The Courts finding was premature as evidence ought to be led before the time within which the action could be brought could be ascertained.
2. The learned trial Judge erred in law when he found that Section 2 (a) of the Public Officers Protection Act was available to the 3rd Defendant/Respondent thereby occasioning a miscarriage of justice.
(A) The Public Officers Protection Act does not protect acts that are malicious and are not legally
justifiable.
(B) Whereas the 3rd Defendant/Respondent have not been found to have acted under Section 34 of the Electoral Act, 2006.
(C) The Write of summons and Statement of Claim of the Plaintiff/Appellant did not allege or suggest that the action of the third Defendant/Respondent was done under Section 34 of the Electoral Act, 2006 or any other Law.
(D) Whereas there was the urgent need to lead evidence to find out whether there was malice or lack of legal justification in the act of the Defendants/Respondents.”
Parties herein have filed and exchanged briefs of argument, including a reply brief by the Appellant. Each party has filed a brief and there is no joint brief, both the 1st and 3rd Respondents adopt the sole issue formulated by the Appellant while the 2nd Respondent’s issue for determination is also not dissimilar to that of the appellant. The sole issue learned by the Appellant from his two grounds of appeal reads thus :-
“Whether the action was defeated by reason of the provisions of Section 2 (a) of the Public Officers Protection Act…”
And this appeal will be determined based on this issue.
It is the submission of the Appellant that the Public Officers protection Act (hereinafter referred to as “The Act”) is meant to protect public officers who act within the ambit of the law and does not protect public officer who act without legal justification or act mala fide. It is submitted by the joint team of E.I. Ogizand and F.E. Okotete of counsel for the Appellant in their brief that the Appellant having not been informed formally by either the 2nd or 3rd Respondents that he had been substituted, he cannot be said to have been substituted under the law. It is also submitted that any change or substitution of candidate in less than 60 days to an election is unlawful and clearly prohibited by law, citing Section 34 of the Electoral Act, 2006. It is further submitted that a public officer is not protected when his act is not reasonably connected with the lawful exercise of his authority. Reliance is placed on ATIYAYE V. PERMANENT SECRETARY, BORNO STATE (sic) [1990] NWLR (Pt. 129) 731 and OLALEYE FADIMOLU V. UNIVERSITY OF ILORIN (2007) 7 W.R.N. 55. It is the contention of the Appellant that since his claim is predicated upon the facts that he was not formally informed and that he only heard the rumour that he was going to be substituted about 45 days to the election, it follows then that 3rd Respondent or anybody or person or authority cannot claim any legal justification for doing exactly what Section 34 of the Electoral Act, 2006 prohibits. UNILORIN V. ADENIRAN [2007] 6 NWLR (Pt. 103) 498 was cited. The Court was urged to hold that the provision of Public Officers (Protection) Act do not apply to the instant case and to allow the appeal.
Now Section 2 (a) of the Act, provides as follows :-
“2 (a) 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 Act or law or of any public duty or authority or in respect of any alleged neglect or default in the execution.
(a) The action, prosecution, or proceeding shall not be 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.”
I do not see how this case falls within the exception to the provisions of Section 2 (a) of the Public Officer (Protection) Act. I do not also see how the mala fide alleged on the part of the 3rd Respondent was proved in the instant case. The duty is on the Appellant to show how the 3rd Respondent exceeded or defaulted in the exercise of its authority.
The Appellant pleaded and front loaded the letter he had written to the National chairman of the PDP complaining about his substitution with a decampee from ANPP. The letter was dated 26th February, 2007 and was pleaded in paragraph 16 of the statement of claim. That was some 45 days before the election of the 21st April, 2007.
By paragraph 5.10 of the 1st Respondents (1st Defendant’s) Statement of Defence, the 3rd Respondent, upon the receipt of the sworn affidavit of the 1st Respondent, caused same to be displayed at their (3rd Respondent’s) Sokoto office and therefore the electorate of the Tambuwal/Kebbe Federal Constituency were put on notice as to the 1st Respondent’s candidature as the 2nd Respondent’s flag bearer for the April election. By paragraphs 5.11 and 5.12, the 1st Respondent pleaded that during the campaign towards the April, 2007 election prominent members of the PDP and party men like the Appellant gave him support and that as a legal member of the PDP, the Appellant campaigned openly and widely for him.
I have looked at the entire pleadings in this case but the above mentioned averments have not been denied, contradicted or controverted by the appellant. Based simply on the state of the pleadings, no reasonable tribunal will believe the claim by the Appellant that he was not aware of his substitution by his party and the acceptance of same by the 3rd Respondent.
In the circumstances, I find no difficulty in agreeing with the learned trial Judge that this action is statute barred and that Appellant has lost his right to institute an action and enforce his right of access to court.
This appeal is accordingly hereby dismissed.
MUSA DATTIJO MUHAMMAD, J.C.A.: I have read in draft the lead Judgment of my learned brother Belgore, JCA. I also participated in the conference which deliberations my lord admirably reproduced in the lead Judgment to the effect that this appeal lacks merit. I adopt the Judgment as mine and dismiss the appeal on the basis of the reasons advanced therein.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privileged opportunity of reading in advance, the lead judgment just delivered by my learned brother, Belgore, JCA. I am in full agreement with the reasoning and conclusion reached therein, to the effect that the appeal should be dismissed. Thus, for the fuller reasons articulated and detailed in the said lead judgment of my learned brother, Belgore, JCA, that I also find no merit whatsoever in this appeal which I also dismiss.
Appearances
E.I. Ogizand Esq., (with F.E. Okotete Esq.)For Appellant
AND
Steve O. Emelieze Esq.
Hon. Chief Olusola Oke (with him Zabairu Abdullahi Esq.)
Oluwike Osaze Uzzi Esq.,For Respondent
