FEDERAL COLLEGE OF EDUCATION OSIELE, ABEOKUTA v. CHIEF OLUFEMI AJAYI
(2014)LCN/7620(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of December, 2014
CA/I/75/2010
RATIO
ACTION: ACTION THAT IS STATUTE BARRED; THE EFFECT OF AN ACTION THAT IS STATUTE BARRED
Where an action is statute bar, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation Law for instituting such action has elapsed – Eboigbe v. NNPC (1994) 6 SCNJ 71 at 78 per. MUDASHIRU NASIRU ONIYANGI, J.C.A.
STATUTORY INTERPRETATION; WHETHER THE COURT SHALL GIVE EFFECT TO THE LITERAL MEANING TO THE WORDS OF A STATUTE WHERE IT THE WORDS ARE CLEAR
The general rule for construing a statute has been stated by courts in a number of cases. The rule is where the words of a statute are clear the court shall give effect to the literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the court may seek internal aid within the body of the statute itself or external aid from statute in pari materia in order to resolve the ambiguity or avoid doing injustice – See the old case of Olalere Obadara & Ors v. The President NAADAN (Ibadan) West District Customary Court (1964) 1 ALL NLR 47 and Mobil Oil (Nig) Limited v. Federal Board of Inland Revenue (1977) 1 SC 53 at 74. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICES
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
FEDERAL COLLEGE OF EDUCATION OSIELE, ABEOKUTA – Appellant(s)
AND
CHIEF OLUFEMI AJAYI – Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the leading Judgment): At the Federal High Court Abeokuta, the respondent instituted a civil action. In his Statement of Claim dated 18/7/2007 in Suit number FHC/AB/CS/20/2007, he is claiming as follows:
(a) The sum of N5,000,000.00 (Five million Naira)
(b) Cost of this action.
The summary of the fact leading to the Suit is that the daughter of Gbonjubola Ajayi a student of the appellant (Federal College of Education Osiele, Abeokuta Ogun State) died in an inferno that engulfed the room allocated to her in the student hostel of the institution (the appellant) in the early hours of Sunday the 11th day of March 2007.
The suit was set down for hearing before the court below. The appellant by way of a notice of preliminary objection challenged the jurisdiction of the trial court on the ground that the action is statute barred and relying on Section 2(a) of the Public Officer Protection Act, Cap. p.41. Laws of Federation of Nigeria 2004 and urged the court to dismiss the action.
The respondent plaintiff objected to the application and submitted that the action was not statute barred haven regard to the provision of Section 4(1) of the (Torts Law) (Fatal Accident) Cap. 126 of Laws of Ogun State 1978 which prescribed a period of 3 years from the date of demise of the victim within which to commence a tortuous action for damages.
In a considered Ruling by Hon. Justice C. M. A. Olatoregun on the 13th day of December 2007, the court overruled the preliminary objection and dismissed same. See pages 6 to 7 of the said ruling where the court concluded as follows:
“I have had a look at the Torts Law of Ogun State Cap. 126 and in particular ss 3-7 which deal with fatal Accident.
And it is my view that actions brought under the Fatal Accident Law can be commenced within three years after the death of such deceased person.
This case is therefore not caught by the general limitation period provided by the public officer which no doubt the defendant is one.
I therefore dismiss the preliminary objection dated 24/9/07”.
Dissatisfied with the conclusion of the court hence this appeal predicated on the notice of appeal dated and filed on the 14th day of May 2009. The appeal is fought on two grounds. I reproduce herein below the two grounds with their particulars.
Ground One
The learned trial court erred in law in holding that actions brought under the Fatal Accidents law can be commenced within three years after the death of such deceased person.
Particulars of Error
(a) The Public Officer Protection Act (Law) limits the period within which a public officer can be sued for any action involving negligence to three months.
(b) The Torts Law of Ogun State of Nigeria did not exclude the operation of the Public Officers Protection Law hence the head note is the public officers law of Ogun State states that it is a Law “to provide for the protection against action of person acting in the execution of public duties”
(c) All other persons could be sued in tort for negligence after the period of 3 months but not a person like the defendant acting in the execution of a public duty.
Ground Two
The learned trial judge erred in law in not dismissing the suit of the plaintiff once he has found that the defendant is a public officer and the action was brought after three months of the act complained of.
Pursuant to the rules of this court, the appellant filed his written brief of argument dated 12th day of January 2011 and filed on 19th January, 2011. By the order of the court the brief was deemed filed on 22/3/2012. The respondent’s brief of argument is dated and filed on 18th day of April 2012.
Respective counsel adopted and relied on their brief of argument while the appellant urged the court to allow the appeal and set aside the ruling of the court below, the respondent urged the court to refuse, dismiss the action and uphold the decision of the court below.
In his adopted brief of argument the appellant formulated the following four issues for determination:
They are:
(i) Whether the learned trial judge was right to have held that actions brought under the Fatal Accidents Law can be commenced against a public officer within three years after the death of the deceased.
(ii) Whether the Torts Law of Ogun State did not exclude the operation of Public Officers Protection Law.
(iii) Whether the learned trial judge was right to have dismissed the application of the appellant having found that the appellant is a public officer and that the action was brought after three months of the Act complained of.
(iv) Whether the Public Officers Protection act is of general application or specific.
In his own adopted brief of argument the learned counsel for the respondent formulated two issues but in alternative for the determination of the appeal. They are:
(1) As between the Public Officers Protection Act and the Torts Law of Ogun State which should apply in the determination of the appropriate time the claimant/appellant ought to institute this Suit being a claim rooted in fatal accident.
Alternatively:
Whether the applicable statute for the determination of the limitation period for the respondent’s action is the Public Officers Protection Act or the Torts Law of Ogun State.
After a calm reading of all the processes in this appeal and comparing the issues for determination formulated by the respective counsel, I am of the view that any of the issue formulated by the respondent even though they are in the alternative would take care of the yearning of the appellant. My conclusion is based on the complaint of the appellant as spelt out in his notice of preliminary objection dated 24th day of September 2007 and upon which the ruling of the court dated 13th December 2007 appeal against is predicated and the two grounds of appeal by the appellant.
This appeal will therefore be determined by the issue formulated by the respondent. As I have said before the issues are two in number but they are in the alternative hence the determination of one would negate the consideration of the other.
Issue for Determination
“As between the Public Officers Protection Act and the Torts Law of Ogun State, which should apply in the determination of the appropriate time the claimant appellant ought to institute this suit being a claim rooted in fatal accident?”
The argument of the appellant relevant to this issue is premised on the provision of section 2(a) Public Officers Protection Act which according to him protect public officers from litigation arising in the course of their duties and limit the period to institute such action to three (3) months. It is clear that Fatal Accidents Law limits the period for the commencement of an action to three years while the public officer’s Protection Act limits the time to three months after the occurrence of the matter in case of a public officer exercising a public duty. He submitted that the learned trial judge correctly stated the law when she found and confirmed the status of the defendant/appellant as a public officer which the Act protects but fell into grave error in holding that the plaintiff/respondent’s case is not caught by the limitation period provided by the Public Officers Protection Act. After citing section 2(a) of the Public Officers Protection Act he submitted that whenever anything is required by any law to be done against a public officer such will only be done and if done within the time allowed by the law i.e. within three months of accrual of action. He referred to the cases of Ibrahim v. JSC & Anr. (1998) SCNJ 11 and 12 page 255 at 272; Momoh v. Okewale (1997) NSCC 365.
He added that when a law is of general application and another is specific the latter will prevail. The general provisions are made to cover all situations that could evolve in an action while the specific provisions are made to take charge of specified and specific situations. Fatal Accident laws are enacted to care for matters which could arise under the provision. The Public Officers Protection Act is specifically made to protect public officers in the discharge of their duties in order to reduce confusion and disturbance with the hope of safeguarding wastages of government resources through frivolous and vexations litigation. He added that where a law is of general application and another of specific application, the specific provision will prevail because of its unique creation. He referred to the following cases Federal Mortgage Bank v. Olloh (2002) 4 SCNJ page 423 at 430-431, A.G. Ogun State v. A.G. Federation (2002) 12 SCNJ 191 at 227, Grace Jack v. University of Agriculture Makurdi (2004) 1 SCNJ 335 at 346 and Hon. Muyiwa Inakoju, Ibadan South East & Ors v. Hon. A. A. Adeleke (2002) 1 SCNJ 1 page 93-94.
The limitation law of three (3) years for action in Tort and contract is a provision that applies to everybody bringing an action in Tort or contract while the provision of Public Officers Protection Act is specific as it only applies for the protection against action of persons acting in the execution of public duties where a public officer is sued in his personal capacity, the Limitation Law of the Public Officers Protection Act which applies only on the execution of Public duty will not avail him or her. He also dealt with issue of which time to commence an action and cited the case of Sani v. Okene Local Govt. & Ors (2008) 5 SCNJ at 246-255, Forestry Research Institute of Nigeria v. Mr. I. A. Enaifogne Gold (2007) 5 SCNJ 302 at 314 and Williams v. Williams (2008) SCNJ page 156 at 166.
He added that the laws of Ogun State did not exclude the operation of the Public Officers Protection Law hence a statutory interpretation must construe a situation where public officers are protected in the discharge of their duties. This according to him is making nonsense of the statute. The non inclusion of the operation of the Public Officers Protection Law in the Tort Law of Ogun State has manifestly shown the instruction between the two statutory provisions. Courts are enjoyed to give effect to the ordinary meaning of words used in the interpretation of statute. He cited Olaide Ibrahim v. S. A. Ojomo & Ors (2004) 1 SCNJ 309 page 321.
Where an action is statute bar, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation Law for instituting such action has elapsed – Eboigbe v. NNPC (1994) 6 SCNJ 71 at 78. He concluded by urging the court to resolve all the issue in favour of the appellant, allow the appeal and set aside the ruling of the lower court.
In his adopted written brief of argument the learned counsel for the respondent submitted that a legal right to institute an action is not a perpetual right but a right generally limited by statute. Whoever has such right of action will only loose the right after the date which the applicable statute provides that legal proceeding cannot be taken. He referred to Ogboru v. S.D.P.C. (Nig) Ltd. (2005) 17 NWLR (Pt. 955) 596; Ayame v. Governor Edo State (2008) ALL FWLR (Pt. 425) 1807 at 1825-1826.
He added that the bone of contention in this appeal as cognizable from the Notice of Preliminary objection before the lower court is whether the applicable statute is the Public Officers Protection Act or the Torts Law of Ogun State both of which have prescribed limitation period in a manner like no other statutes and made conflicting provisions as to when an action will become statute bar. He sought refuge in the case of Kraus Thompson Org. v. N.I.P.S.S. (2004) ALL FWLR (Pt. 218) 797 at 808.
What is in contention between parties is which of the provisions is a “specific provision” and “general provision”. His reaction to this question posed by him is that Tort Law of Ogun State to the extent that it provides specifically for compensation for the families of persons killed in accidents is the specific provision in the con of this suit whilst the public officers protection act which deals at large, with any suit against the public officer is but a statute of general application. He cited the case of Unilorin v. Adeniran (2007) 1871 at 1901 where the court described the statute is “of a general application all over the Federal Republic of Nigeria”. Further, he added that the Tort Law of Ogun State, which is a statute of wider application, a part is specially carved out and specifically designated as “Fatal Accident” thereby bringing that particular part out of the general provision on Tort. He relied on the Dictionary definition of “general provision” and “specific provision” by Black Law Dictionary at page 900. By the definition provided for “general law” and the word “specific” and “law” when combined, one can argue that the Public Officers Protection Act applied to all persons or place of specified class namely “public officer”. It applies to one category of persons and entities in a manner that is neither local nor continental in application to a particular person. The Tort Law of Ogun State on the other hand he submitted though applies generally but creating a special class of law that applies only to a particular case namely families of person “killed in accidents.”
Therefore, part two-Torts Law of Ogun State which specifically provides for compensation for the families of persons killed in accident is a specific provision in the sense that it applies to a particular or specific case which is the case of “compensation for the families of accident victims.”
This action he submitted haven been brought within three years as provided for in the statute is not statutes barred. He urged the court to dismiss the appeal and affirm the Ruling of the lower court.
I have carefully read and compare the respective submissions. Both counsel conceded to the fact that the Public Officers Protection Act is a general legislation and also ad-idem on the fact that Torts Law of Ogun State is specific on compensation for families of accident victims. Both enactments prescribed time within which an action can be instituted. Further to this, is that there is no dispute on the fact that the respondent is a public institution i.e. an artificial person. What is now call for determination and which is the bone of contention is which law is applicable in the circumstance of the suit before the lower court i.e. whether the Public Officer Protection Act or the Torts Law of Ogun State. This question calls for the interpretation of the two enactments. For better understanding I reproduce herein below the two provisions. First is section 2(a) of the Public Officers Protection Act cap p.41 Laws of Federation of Nigeria.
Section 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 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 should 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 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 discharge of such person from prison.”
Section 3 of the Torts Law of Ogun state 1978, cap 126 provides.
Section 3
“Whensoever the death of a person shall be caused by the fault of any other person and the fault is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstance as amount in Law to felony.
Provided always that not more than one action shall lie for and in respect of the same subject matter of complaint and that every such action shall be commenced within three years after the death of such deceased person”.
As I said before what is now call for interpretation are the foregoing provisions.
The general rule for construing a statute has been stated by courts in a number of cases. The rule is where the words of a statute are clear the court shall give effect to the literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the court may seek internal aid within the body of the statute itself or external aid from statute in pari materia in order to resolve the ambiguity or avoid doing injustice – See the old case of Olalere Obadara & Ors v. The President NAADAN (Ibadan) West District Customary Court (1964) 1 ALL NLR 47 and Mobil Oil (Nig) Limited v. Federal Board of Inland Revenue (1977) 1 SC 53 at 74.
Agreed the two provisions limit the time victim can file an action in court. Where the words of a statute are clear and unambiguous in their ordinary meaning effect should be given to them without resort to any external aid. See the cases of Attorney General of Abia State v. Attorney-General of the Federation & Ors (2005) 7 SC 1, Mr. Popoola Elabanjo v. Chief (Mrs.) Ganiyat Dawodu (2006) 6 SCNJ 204 and Nigerian Petroleum Corporation v. Lutin Investments Ltd. & Anor (2006) 1 SCNJ 131.
I am not unmindful of the concurrent submissions of counsel that where a law is of general application and another of specific application, the specific provision prevails because of the unique creation. See the decisions in the cases of Federal Mortgage Bank v. Olloh (2002) 4 SCNJ pg. 423 at 430-431; Attorney-General Ogun State v. Attorney-General Federation (2002) 12 SCNJ 191 at 227.
Here we are considering two legislations which tend to touch on limitation of action; one is a Federal Act and the other is that of a state (Ogun State).
I agree entirely that section 2(a) of the Public Officers Protection Act is general in nature, it applies to all forms of action that is targeted against a public officer and applicable in all the state of Nigeria whereas the Tort Law of Ogun State is territorially limited to actions on the subject matter therein and within the jurisdiction of courts in Ogun State. A careful reading of section 2(a) of the Public Officers Protection Act, i.e. the title (CITATION) is “PUBLIC OFFICERS PROTECTION ACT”.
Further to this it is also provided in the enactment that the law is to protect public officers by the use of the following words.
“An act to provide for the protection against action of persons acting in the execution of public duties”.
The short title of the legislation also is-
“This act may be cited as the Public Officers Protection Act”
It is not in contention that the Federal college of Education Osiele Abeokuta is a public Institution. The Public Officers Protection Act to my understanding is to protect public officers and not a shield for public institutions. Here the action in the court below is against a public institution i.e. Federal college of Education Osiele Abeokuta and not a Public Officer. Giving an ordinary meaning to the words used in the said act my reaction is negative to the submission that the public offers protection act is applicable to the suit before the lower court. In the circumstance of the fact of this case, the allege complaint happened in Ogun State, the nature of the claim is in damages (compensation). The Tort law of Ogun State on the face of it opens a window to channel such complaint and ventilate same in court, I concede to the submission that the Public Officers Protection Act is general in nature. It protects public officers. But same cannot be said of public institution. That is to say that it protects the acts of public officers while discharging their public function. Whereas the Tort Law of Ogun State deals on a specific type of action. To that extent, I feel bold to say that the Public Officers Protection Act is not applicable to the matter before the lower court because the complaint is not against a public officer but against a public institution (An artificial person).
The action I feel could be tested under the Tort Law of Ogun State which also prescribes and limit the time within which to bring such action to three years. I accordingly so hold. On that note I answer the issue in the negative. That is to say that the Public Officers Protection Act is not applicable to the subject matter of the action before the Federal High Court Abeokuta.
I therefore conclude that the action is not statute barred. Haven gone this far, the need to consider the other issue which is in the alternative become otious. The appeal, I conclude lacks merit and it is dismissed. The Ruling of the Federal high Court sitting in Abeokuta delivered by Hon. Justice C. M. A. Olatoregun on 13th day of December 2007 is hereby affirmed.
Fifty thousand Naira (N50,000.00) is awarded in favour of the respondent and against the appellant.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother, Oniyangi, JCA, I fully agree with all his reasonings and conclusions I adopt them as mine in dismissing this appeal for being devoid of any merit. I too would award N50,000 costs to the Respondent against the Appellant.
NONYEREM OKORONKWO, J.C.A.: The protection afforded by the Public Officers protection Act cap 41 Laws of the Federation of Nigeria 2004, in its rationale is intended to protect Public officers in the execution or intended execution of their duties and to limit law suits which would have effect of hindering their performance. But who then is a Public Officer?
Public officer is explained in relation to Public Office of the Federation in Section 318(f) of the constitution and includes staff of any educational institution established or financed principally by the Government of the Federation; it never was enlarged to include the Institution where the Officer is employed in.
This was the challenge presented in this appeal without more and my lord Mudashiru Nasiru Oniyangi, JCA has admirably resolved the issue.
I agree with the more detailed reasoning contained in the judgment he just delivered and abide by the orders made therein.
Appearances
C. J. P. Ogugbara, Esq.For Appellant
AND
Abiola Owolabi, Esq.For Respondent
