AFUBA v. U.N.N & ORS (2020)

AFUBA v. U.N.N & ORS

(2020)LCN/14812(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Thursday, November 26, 2020

CA/E/59/2016

RATIO

ACTION: WHEN WILL A CAUSE OF ACTION ARISE

The law is settled that a cause of action arises as soon as the combination of facts giving the right to complain happens. In other words, a cause of action is said to have accrued when the entire factual situations which give a person the right to a judicial relief are present or have happened. That is, when all that is necessary to make the matter in litigation an enforceable right or an actionable wrong have occurred. See MAIGARI V. MALLE & ORS.(2019) LPELR- 49374(SC) AT 15-22 (F-B). ZUBAIR V. KOLAWOLE (2019) LPELR-46928 (SC) AT 19(D-F). It is the accrual of the cause of action that confers on the appellant the right to institute an action to enforce the cause of action or right to a judicial relief. See HASSAN V.ALLIYU & ORS. (2010) LPELR-1357(SC) AT 24-25 (A-E). PER BOLAJI-YUSUFF, J.C.A.

ACTION: HOW WILL THE CAUSE OF ACTION BE DETERMINED

In order to determine the cause of action, when it accrued and when the action is filed, the Court will look at the claim of the plaintiff and the facts pleaded in the statement of claim. PER BOLAJI-YUSUFF, J.C.A.

PUBLIC OFFICERS: INTERPRETATION OF SECTION 2 OF THE PUBLIC OFFICERS PROTECTION ACT

Section 2 of the PUBLIC OFFICERS PROTECTION ACT provides that:
“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 shall have effect-
(a) Limitation of Action
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 discharge of such person from prison; “
Section 1 of the INTERPRETATION ACT provides that:
“1. This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question.”
By the clear words ofSection 1 of the INTERPRETATION ACT, resort will be had to the Act in the interpretation of any enactment including the PUBLIC OFFICERS PROTECTION ACT. Therefore, in the search for the meaning and scope of the words “any person” used in Section 2(a) of the PUBLIC OFFICERS PROTECTION ACT, the Court must be guided by the definition of “person” in Section 18 (1) of the INTERPRETATION ACT where it is stated that “person” includes anybody of persons, corporate or unincorporate;” and public officer is defined as a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or of the public service of a State. From the avalanche of cases already decided by this Court and the Supreme Court on the issue of whether the words “any person” used in the PUBLIC OFFICERS PROTECTION ACT covers both natural persons and corporate bodies, the clear position of the Supreme Court which this Court has been following as it is supposed to do by the doctrine of stare decisis and for certainty of the law is that the word ‘person’ in that section does not only refer to natural persons but extend to public bodies, artificial persons sued by their official names or titles such as the respondents in this case. See AIYETAN V. NIGERIA INSTITUTE OF OIL PALM REASEARCH (1987) LPELR-275 (SC) AT 27-28 (G-B) where the Supreme Court Per NNAMANI, J.S.C. stated the meaning, purport and applicability of the Public Officers Protection Act as follows:
“The Public Officers Protection Act, Cap 168 Laws of the 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 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 FGN & ORS. V. ZEBRA ENERGY LTD.(2002) LPELR-3172(SC) AT 19 (C-E) the Supreme Court per MOHAMMED ,J.S.C stated the categories of persons that fall within the purview of the words “any person” used in the PUBLIC OFFICERS PROTECTION ACT as follows:
“… I did hold that the words ‘public officer’ or ‘any person’ in public office as stipulated in Section of the Public Officers (Protection) Law, 1963 not only refer to natural persons or persons sued in their personal names but that they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles “. All the appellants are therefore public officers within the meaning of the Public Officers Protection Act. See also the case of Permanent Secretary Ministry of Works, E.T.C. & Anor. v. Balogun (1975) NSCC 292.”
See OFFOBOCHE V. OGOJA L.G.& ANOR. (2001) LPELR-2265(SC) AT 23-25 (C-D). FORESTRY RESEARCH INSTITUTE OF NIGERIA V. GOLD (2007) LPELR-1287 (SC) AT 31-32 (E-D). SULGRAVE HOLDINGS INC. & ORS. V. FGN & ORS. (2012) LPELR-15520 (SC) AT 26 (D-F). AJAYI & ORS. V. ADEBIYI & ORS. (2012) LPELR- 7811 (SC) AT 36 (A-D). Some of the cases which were decided by this Court following the law as pronounced by the Supreme Court in the above cases are EL-RUFAI V. SENATE OF THE NATIONAL ASSEMBLY & ORS. (2014) LPELR-23115 (CA) AT 40-42 (A-G). HAMMAN V. NDLEA & ORS. (2018) LPELR- 47021 (CA) AT 9-15 (B-E). NWAFOR V. NCS & ORS. (2018) LPELR-45034 (CA) AT 20 -21 (A-B).WULANGS V. CBN (2019) LPELR-48085 (CA). EJIGBO LG & ORS. V. ADEPEGBA & ORS. ( 2019) LPELR- 48060 (CA) AT 15-18 (D-A). OMUETI V. UNIUYO & ORS (2019) LPELR-47155 (CA). PER BOLAJI-YUSUFF, J.C.A.

UNIVERSITY: ESTABLISHMENT OF THE UNIVERSITY OF NIGERIA AND ITS FUNCTIONS

The University of NIGERIA was established by the UNIVERSITY of NIGERIA Act Cap. U11, VOLUME 15, LAWS OF THE FEDERATION OF NIGERIA, 2004.Section 1 (1) and (2) of the Actprovide as follows:
“(1) The University of Nigeria ( in this Act referred to as “ the University”) established by the University of Nigeria Law (in this Act referred to as the “ the former Law”) shall continue in being as a body corporate with perpetual succession and a common seal.
(2) The University may sue or be sued in its corporate name.”
Section 2(1) (c) creates a senate for the university and the office of the Vice-Chancellor among the bodies and officers constituting the university.
Section 3(2) which provides for the exercise of the powers conferred on the university by Section 3(1) reads thus:
“3(2) Subject to the provisions of this Act and of the statutes, and without prejudice to Section 8(2) of this Act, the powers conferred on the University by Subsection (1) above shall be exercisable on behalf of the University by the council or by the senate or in any other manner which may be authorised by statute.”
Section 6(1) sets out the functions of the Council of the University in these words:
“6 (1) subject to the provisions of this Act relating to the visitor, the council shall be the governing body of the University and shall be charged with the general control and superintendence of the policy, finances and property of the university, including its public relations.”
The functions of the Vice-Chancellor of the university are spelt out in Section 8 of the Act, Subsection (2) of which provides:
“8(2) Subject to Section 6 and 7 of this Act and the provisions of this Act relating to the Visitor, the Vice-Chancellor shall have the general function, in addition to any other functions conferring on him by this Act or otherwise, of directing the activities of the University, and shall to the exclusion of any other person or authority be the Chief Executive and Academic Officer of the University and ex-officio chairman of the senate.”
Paragraph 6(1) of the First Schedule to the Act creates the office of the Registrar of the University and sets out his functions as follows:
“6(1) There shall be a Registrar, who shall be the Chief
Administrative Officer of the University and shall be responsible to the Vice-Chancellor for the day-to-day administrative work of the university except as regards matters for which the bursar is responsible in accordance with Paragraph 7 (2) of this Schedule.”

It is clear from the above provisions of the UNIVERSITY OF NIGERIA ACT that the council, the Vice-Chancellor and the Registrar are creations of the Act and each is assigned specific functions as stated for in the Act. In the exercise of such functions, it is certain that the rights of other persons will sometimes be affected. It is settled law that where a statute creates an office or a body with specific duties and functions, anyone who is adversely affected by the performance of those statutory duties and functions can institute an action against the persons performing those functions in their official capacity. Where the exercise of powers under the Statute would result in injustice to a party and the injustice would be irreparable, the right of the statutory body to sue and be sued in its name is implied. An aggrieved person cannot be prevented from seeking redress for the infringement of their right simply because the Act has not expressly stated that those who are been assigned specific duties and functions can sue or be sued. See CARLEN NIG. LTD. V.UNIJOS (1994) LPELR- 832(SC) AT 25-26 (A-E ). A.G.FEDERATION V. ANPP & ORS.(2003) LPELR- 630 (SC) AT 23-24(F-C). ATAGUBA & CO. V. GURA NIG.LTD.(2005) LPELR-584(SC) AT 11-12 (G). KWAGE & ORS. V.UPPER SHARIA COURT GWANDU & ORS. (2017) LPELR-42508 (SC) AT 18-20 (B-F). Since the Vice Chancellor and the Registrar of the University of Nigeria are creations of the University of Nigeria Act assigned with specific statutory duties and functions, the performance of which could adversely affect the right of others, the right to sue and be sued in a Court of Law is implied. PER BOLAJI-YUSUFF, J.C.A.

TORT: EFFECT OF AN AGENT COMMITTING A TORT ON BEHALF OF HIS PRINCIPAL

The law is settled that an agent who commits a tort on behalf of his principal is a joint tort feasor with his principal and may be liable either alone or together with his principal for his action or conduct and may be sued either alone or with his principal. See DUNU MERCHANTS LTD. V. OBANYE & ORS. (2014) LPELR-24059 (CA) AT 54 (C-G). KATOL INVESTMENT LTD. V.TAJ,DEVELOPMENT CO.LTD.& ORS. (2018) LPELR-46483 (CA) AT 19-21 (F-C). PER BOLAJI-YUSUFF, J.C.A.

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

FELICIA NNEKA AFUBA APPELANT(S)

And

1. UNIVERSITY OF NIGERIA 2. THE VICE CHANCELLOR, UNIVERSITY OF NIGERIA 3. THE REGISTRAR, UNIVERSITY OF NIGERIA RESPONDENT(S)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant herein is a graduate of the University of Nigeria, Nssuka. She was awarded a Bachelor of Arts Degree in Education/English in December, 1987. In 2001, she was offered a provisional admission into the Nnamdi Azikwe University, Awka to do a Masters Degree programme in Education which she accepted. She applied and paid for the transmission of her transcripts and academic records from the 1st respondent to Nnamdi Azikwe University. Transmission of the first degree transcript of a candidate is a pre-requisite or condition precedent for admission for post graduate studies in any university. The respondents failed, neglected and refused to transmit the appellant’s transcript as demanded and the admission was withdrawn and cancelled by the Nnamdi Azikwe University, Awka. In 2009 and 2010, the appellant again applied to Nnamdi Azikwe University, Awka for admission into post-graduate degree but could not be admitted due to the failure of the respondents to transmit her transcript to Nnamdi Azikwe University. According to the appellant, the respondents informed her that her

transcript and academic records were lost and they were searching for it. The appellant wrote a letter dated 8/9/2011 and her solicitors wrote another letter dated 15/4/201 but the respondents still failed, neglected and refused to comply with her request. The appellant after the expiration of the pre-action notice served on the respondents instituted suit no. FHC/ EN/CS/222/2013 on 19/12/2013 wherein she sought the following reliefs:
1. “A declaration that the defendants are under a duty to transmit the plaintiff’s academic record leading to the award to the plaintiff of a Bachelor of Education Degree by the 1st defendant, to the Nnamdi Azikwe University.
2. A declaration that the defendants’ failure and/or refusal to transmit the plaintiff’s academic record as demanded has caused the plaintiff tremendous harm, pain, mental and psychological anguish and totally jeopardized the plaintiff’s future for which the defendants are damnable in general, special, aggravated and exemplary damages.
3. An order directing the defendants to forthwith transmit the plaintiff’s transcript of academic records to Nnamdi Azikwe

University as demanded.
4. An order of the honourable Court compelling the defendants to pay the plaintiff the sum of #1,000,000,000.00 (One Billion Naira)”

Upon service of the Court processes on the respondents, they entered a conditional appearance and filed a notice of preliminary objection contending that the Court has no jurisdiction to entertain the suit on the grounds that:
1. The action is statute-barred by virtue of PUBLIC OFFICERS PROTECTION ACT, CAP 41, VOLUME 14, LAWS OF THE FEDERATION OF NIGERIA, 2004.
2. The 2nd and 3rd respondents are not legal or juristic persons capable of suing and being sued under the UNIVERSITY OF NIGERIA ACT, CAP 11, LAWS OF THE FEDERATION OF NIGERIA, 2004.
3. The 2nd and 3rd respondents are agents of a disclosed principal UNIVERSITY OF NIGERIA and cannot be sued or joined in a suit for the alleged wrongs of the disclosed principal.

The Court below in its considered ruling delivered on 5/2/2015 by D.V. AGISHI,J upheld the objection and struck out the suit. The appellant being dissatisfied with the ruling filed a notice of appeal on 29/4/2015. An amended notice of appeal filed on

26/4/2016 was deemed as properly filed and served on 29/1/18. The grounds of appeal without their particulars are as follows:
GROUND 1
“The learned trial judge erred in law when he held as follows:
“The fact here is that in whichever way one would like to compute time in this case either from 2009 and 2010 as stated in paragraph 12 of the statement of claim or 8th September, 2011 as stated in paragraph 13 of the claim or yet still on 15th April 2012 as per paragraph 14 of the claim or 15th August, 2013 as stated in paragraph 15 of the claim, her matter having just commenced on 19th December, 2013 is statue barred, the said suit having been filed well after 3 months statutory period provided by Section 2(a) of the Public Officers Protection Act 2004.
GROUND 2
The learned trial Court misdirected itself in law in the following passage of its ruling:
The contention of the plaintiff is that, his injury and or damage was a continuous one and that the limitation of action prescribed under the Public Officers Protection Act is inapplicable. My view on this submission is however in the contrary. In other words, I do not think

the plaintiff’s view represent the correct position of the law. The true position of the law is that negotiation by parties does not prevent or stop the time limit for filing an action from running. Even where there is exchange of correspondence and negotiation is on between the parties, the time does not stop running from the date the cause of action accrued.
GROUND 3
The Court below erred in law in holding that the 2nd and 3rd respondents are not persons known to law for the purpose of suing or being sued.”

The appellant’s brief of argument was filed on 26/4/2016. It was deemed as properly filed and served on 29/1/2018. The respondent’s brief was filed on 4/6/2018 and deemed as properly filed and served on 14/10/20. The appellant raised the following issues for determination:
1. “Whether the plea that the appellant’s suit was statue barred raised by the respondents and upheld by the trial judge can be sustained having regard to the peculiar facts and circumstances of this case, and the exceptions provided by the Public Officers Protection Act (Distilled from Ground 1 and 2).
2. Even if the Public

Officers Protection Act is applicable in this case, whether 1st respondent is a public officer within the purview of the Public Officers Protect Act, 2004, and if it is not whether the trial Court rightly declined jurisdiction on the ground that the appellant’s action was statute barred (Distilled from Ground 4, as Amended).
3. Whether the 2nd and 3rd respondents are competent and juristic persons before the Court, and if they are, whether Section 1 of the University of Nigeria Act, excluded their juristic personality. (Distilled from Ground 3).”

The respondents raised the following issues for determination:
1. “Whether the learned trial judge was right in holding that the respondents are Public Officers as envisaged by the Public Officers Protection Act cap P.41 Laws of the Federation of Nigeria 2004.
2. Whether the learned trial judge was right in holding that the matter was statute-barred under Section 2 (a) of the Public Officers Protection Act, 2004.”

I have considered the grounds of appeal and the issues formulated by counsel. I find the issues raised by the appellant to be apt for the determination of

this appeal.

On issue 1, the appellant’s counsel submitted that the limitation of actions provided under the Public Officers Protection Act does not avail the respondents in the instant case because the appellant’s case falls within the exceptions provided under Section 2 (a) of the Act. He argued that the injury and damages being caused to the appellant are continuing since she has not and would not be admitted for postgraduate studies in any university in the world until she obtains her transcript and the respondents will not transmit it unless ordered to do so by the Court. He referred to A.G. RIVERS STATE V. A.G. BAYELSA & ANOR (SUPRA), ALL FWLR (PT.699) 1087 AT 1105, AREMO II V. ADEKANYE (2004) ALL FWLR (PT.224) 2113 AT 2132. C.B.N. V. AMAO (2011) ALL FWLR (PT.558) 806 AT 827. He contended that the appellant’s case falls within the second exception provided under the Act because there is no legal justification for withholding the appellant’s transcript, if not for malice, abuse of office and to victimize and destroy the academic pursuit of the appellant. He further submitted that the Act will not avail a public officer who

acted outside the colours of his office or statutory or constitutional duties. He referred to A.G. RIVERS STATE V. A.G. BAYELSA & ANOR (SUPRA). ANOZIE V. A.G. FEDERATION (2008) 10 NWLR (PT 1095) 278 AT 290-291. DUKOKE V. I.G.P & ORS. (2011) LPELR- 4287(CA). OYO STATE BOARD OF INTERNAL REVENUE V.UNIV.OF IBADAN (SUPRA).

In response, the respondents’ counsel submitted that when there is a failure or default on the part of a public officer in the execution of his public duty such as the alleged failure to transmit the transcript of the appellant, the alleged failure brings the matter squarely within the provisions of the Public Officers Protection Act and the appellant ought to have sued the respondents within the statutory period of three months after being informed that her records were misplaced or missing. He referred to EGBE V. ADEFARASIN (1987) 1 NWLR (PT.47) 1. IBRAHIM V. J. S. C. (SUPRA). UNIVERSITY OF JOS V. IKEGWUOH (SUPRA). Counsel argued that time never stopped running despite the notification and attempts by the respondents to locate the records. He referred to NNPC V. EBOIGBE (1994) 5 NWLR (PT.347) 649. A.G. ADAMAWA STATE V. A.G. (FED)

(2014) 14 NWLR (PT 1428) 515. He argued that the appellant failed to show that the respondents acted outside their statutory authority or that failure to transmit the transcript was as a result of malice in the face of the appellant’s pleading that the respondents informed her that her record was misplaced and they were searching for it. He urged the Court to affirm the ruling of the Court below that the action is statute-barred.

RESOLUTION
The law is settled that a cause of action arises as soon as the combination of facts giving the right to complain happens. In other words, a cause of action is said to have accrued when the entire factual situations which give a person the right to a judicial relief are present or have happened. That is, when all that is necessary to make the matter in litigation an enforceable right or an actionable wrong have occurred. See MAIGARI V. MALLE & ORS.(2019) LPELR- 49374(SC) AT 15-22 (F-B). ZUBAIR V. KOLAWOLE (2019) LPELR-46928 (SC) AT 19(D-F). It is the accrual of the cause of action that confers on the appellant the right to institute an action to enforce the cause of action or right to a judicial relief.

See HASSAN V.ALLIYU & ORS. (2010) LPELR-1357(SC) AT 24-25 (A-E). In order to determine the cause of action, when it accrued and when the action is filed, the Court will look at the claim of the plaintiff and the facts pleaded in the statement of claim. The appellant’s claim has been stated earlier in this judgment. The facts in support of claim are pleaded in paragraphs 10-16 of the statement of claim as follows:
10. “The plaintiff avers that the receipt of a candidate/applicant’s transcript of results by the University offering admission to a candidate or applicant is a condition precedent to offer of admission and/or continued admission into the University for Post-graduate courses.
11. The plaintiff suffered a lot when the admission earlier offered her to pursue a post-graduate (Masters) in Education was withdrawn and canceled by the Nnamdi Azikwe University consequent on the defendants’ failure and refusal to transmit the plaintiff’s academic records to Nnamdi Azikwe University, Awka.
12. The plaintiff again in 2009 and 2010 applied for admission to Nnamdi Azikwe University for post-graduate degree but

could not be admitted for the courses due to the failure, neglect and or refusal of the defendants to transmit the transcript of the plaintiff’s academic record to the Nnamdi Azikiwe University despite the plaintiff paying all the prescribed fees for the transmission of the transcript. The application forms for the Post-graduate degree programme and receipts of payment are pleaded.
13. The plaintiff made several trips to the 1st defendant pleading, begging and persuading the defendants to transmit her academic records to Nnamdi Azikwe University all to no avail. Despite the several oral and written demands made to the defendants, the defendants failed, neglected and/or refused to comply with same saying that they misplaced/lost the academic records of the plaintiff and were still in search of same. The plaintiff’s letter to the 2nd defendant dated 8th September, 2011 demanding for the transcript is pleaded. The defendants are given notice to produce same at the trial of the suit.
14. The plaintiff was constrained after a reasonably long period had elapsed to brief a firm of solicitors to formally demand for the transmission of her

transcript/academic records to Nnamdi Azikwe University. The solicitors’ said letter dated 15th April, 2012 addressed to the 2nd defendant is pleaded. The defendants are given notice to produce same at the trial of this suit.
15. Still, the defendants failed, neglected and/or refused to comply with the demands prompting the solicitors acting on the instructions of the plaintiff and on her behalf to issue the defendants with a three-month pre-action notice of her intention to ventilate her case in a law Court.
16. The defendants neither acknowledged nor acted on the said Pre-action Notice. The defendants still failed, neglected and/or refused to transmit the plaintiff’s academic records as demanded. The said pre-action notice of claim dated 15th August, 2013 and the delivery slip are hereby pleaded. The defendants are given notice to produce same at the trial of this suit.”

It is clear from the above facts that the cause of action in the instant case is the failure of the respondents to transmit the transcript of the appellant to the Nnamdi Azikwe University before 2009 and again in 2009 and 2010 which failure deprived her of

the chance to secure an admission for a post-graduate programme of that university. The Court below on the above facts held at page 79 of the record of appeal that:
“The fact here is that in whichever way one would like to compute time in this case either from 2009 and 2010 as stated in paragraph 12 of the statement of claim or 8th September, 2011 as stated in paragraph 13 of the claim yet still on 15th April 2012 as per paragraph 14 of the claim or 15th August 2013 as stated in paragraph 15 of the claim, her matter having just commenced on 19th December, 2013 is statue barred, the said suit having been filed well after 3 months statutory period provided by Section 2 (a) of the Public Officers Protection Act 2004.
The contention of the plaintiff is that, his injury and or damage was a continuous one and that the limitation of action prescribed under the Public Officers Protection Act is inapplicable. My view on this submission is however in contrary. In other words, I do not think the plaintiff’s view represent the correct position of the law. The true position of the law is that negotiation by parties does not prevent or stop the time

limit for filing an action from running. Even where there is exchange of correspondence and negotiation is on between the parties, the time does not stop running from the date the cause of action accrued.”

The finding of the Court below is unassailable because Section (2) (a) of the Public Officers Protection Act provides that 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 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. It is clear from the appellant’s pleadings that she applied for the transmission of her transcript for the first time in 2001 when she was offered provisional admission by the Nnamdi Azikwe University. The respondents failed to comply with that request.

Again in 2009 and 2010, she applied for the transmission of her transcript to the same Nnamdi Azikwe University. Again the respondents failed to comply with that request. They informed the appellant that her records were lost or missing and they were searching for it. She could not get admission to pursue the postgraduate studies. Upon the information that her records were lost, the appellant had a grievance for which she was entitled to seek redress because it was then clear that the respondents had caused her to lose the opportunity to secure an admission for post graduate studies. At that time, all the facts necessary to enable her seek redress in Court had occurred. She had applied for admission to Nnamdi Azikwe University for admission, she applied for the transmission of her transcript to the University to enable her secure the admission, she visited the defendants and pleaded several times for the transmission of the transcript and eventually, she was informed that her records were lost or missing. Upon being informed that the records were lost, all the facts necessary for her to complain and seek redress for her complaint had happened. The appellant

ought to have instituted the suit within three months from the time she was informed in 2010 that her records were lost. The provisions of the Public Officers Protection Act are very clear. An action seeking redress for the neglect or default of a public officer must be instituted within three months of the occurrence of the neglect or default or in case of a continuance of damage or injury within three months next after the ceasing of the damage or injury. The argument of the appellant’s counsel that the failure or neglect of the respondents to transmit the appellant’s record is a continuous one because she would never be able to secure an admission into any university for post graduate studies is untenable in law. In A. G. LAGOS STATE V. EKO HOTELS LTD. & ANOR. (2006)LPELR-3161(SC) AT 55 (C-E) the Supreme Court held that:
“The question as to what a cause of action is and when it is said to have accrued have long been settled by the Court and it has been held that a cause of action consists of every fact which it would be necessary to prove, if traversed in his claim for judgment and that the accrual of the cause of action is the event

were a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. It is very clear from a community reading of decisions of the Courts on the issue that cause of action always deals with events in the immediate past, not in the future.”
The loss of the records and the knowledge that the appellant may never be able to secure an admission into any University for postgraduate studies completed her cause of action. The cause of action is the loss of the appellant’s records not the continuous effect of the loss. In INEC V. ENASITO & ORS. (2017) LPELR-47991(SC) AT 25-27(F-D), the Supreme Court considered a similar argument as the appellant’s argument. The Court per MUHAMMAD, J.S.C .held as follows:
“Appellant’s argument in this appeal is that the injury, if any, they caused the respondent is not continuous to entitle them to the lower Court’s favourable decision. The law, it is argued, only removes the protection Section 2(a) of the Public Officers Protection Act confers on the appellant if the injury, not the effect of the said injury, the respondents make the basis of their suit persists.

Learned appellant’s counsel insists and correctly too, that the lower Court is wrong to have removed the protection the law conferred on the appellant where the respondents’ complaint, as established, is on the continuous effect of the injury. In Obiefuna v. Okoye (1961) All NLR 357 at 360, this Court stated as follows: – “Continuance of injury or damage means continuance of the legal injury and not merely continuance of the injurious effects of a legal injury.” In the case at hand, the respondents’ action coming fifteen years after appellant’s omission to restore and recognise Ughelli South State Constituency 1 with constituency No. SC.33/DT as an approved Constituency in Delta State, learned appellant’s counsel is right, given the protection appellant enjoys under Section 2(a) of the Public Officers Protection Act, is not maintainable. It is not about the continuous result of the excision. Time begins to run, for the purpose of any suit the respondents are to pursue, from the date of the excision of the constituency by the appellant and not on account of the continued suppression of the right of the people of the constituency to representation. Unless the

respondents’ action is commenced within the three months allowed by the statute, their right of action runs out by effluxion of time. See Egbe v. Adefarasin (No. 2) (1987) 1 NWLR (Pt. 47) 1, (1987) 1 SC 1 and I.N.E.C. v. Ogbadibo Local Government (2016) 3 NWLR (Pt. 1498) 167 at 208. Accordingly, respondents’ action commenced outside the time allowed by the limitation section is incompetent. Both Courts are wrong to have found otherwise.”
See also INEC V. ONOWAKPOKO (2017) LPELR- 47943(SC) AT 46-53(A). Time began to run for the purpose of instituting an action to seek redress the moment the appellant was informed that her records were lost and not on the continuing inability or impossibility of securing an admission for postgraduate studies. Accordingly, this action having been instituted outside the three months period stipulated by Section 2(a) of the Public Officers Protection Act is statute-barred.

The argument of the appellant’s counsel that the failure of the respondents to transmit the appellant’s transcript is an abuse of office, activated by malice and aimed at victimising the appellant has no leg to stand in view of the

appellant’s own pleading that the appellants informed her that her records were lost or missing. On the facts pleaded by the appellant, the failure of the respondents to transmit the appellant’s record was due to the loss of the records and not deliberate. If it was not deliberate, then it is not malicious or done with the aim of victimising the appellant. Public Officers Protection Act shall not avail a public officer only when the public officer acts outside the scope of his authority or without a semblance of legal justification or acted in bad faith. See HASSAN V. ALIYU (SUPRA) where the Supreme Court per ONNOGHEN,J.S.C. AT 27 (A-D ) stated the factors that would deprive a party of the protection of Section 2 (a) of the Public Officers’ (Protection) Act as follows:
“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act. It is the duty of the plaintiff/appellant to adduce evidence or facts to establish the bad faith, lack of semblance of legal justification etc,

etc. The facts to be produced must exist to enable the Court find the absence of semblance of legal justification etc, etc otherwise once it is established that the action was instituted outside the statutory period of three months, the action is time-barred and the Court will have no jurisdiction to entertain same.”
The appellant has by her pleadings failed to show that her claim falls within the exceptions mentioned under the proviso to Section 2(a) of the Public Officers Protection Act. Issue 1 is resolved against the appellant.

On issue 2, the appellant’s counsel argued that the decision of the Court below that the 1st respondent is also a public officer and therefore caught by the provisions of the PUBLIC OFFICERS PROTECTION ACT, CAP 41, VOLUME 14, LAWS OF THE FEDERATION OF NIGERIA, 2004 cannot be sustained because the case of IBRAHIM V. J.S.C. (1998) 14 NWLR (PT.584) 132 which the Court relied on is not applicable to the instant case. He submitted that public department is not included in the definition of a public officer under Section 18 (1) of the INTERPRETATION ACT,CAP C23 LAWS OF THE FEDERATION OF NIGERIA which is the Law applicable

to this case and not the INTERPRETATION LAW OF NORTHERN NIGERIA,1963 which was relied on in IBRAHIM V. J.S.C. (SUPRA). He further submitted that the 1st respondent is a creation of the UNIVERSITY OF NIGERIA ACT, CAP U11, VOLUME 15, LAWS OF THE FEDERATION OF NIGERIA, 2004 which legislation can only be interpreted with the aid of the INTERPRETATION ACT. He was emphatic that an agency or institution of the Federal Government such as the 1st respondent is not a public officer within Section 2(a) of the PUBLIC OFFICERS PROTECTION ACT. He referred to C. B.N. V. NJEMANZE (2015) 4 NWLR (PT.1449) 276 AT 284-285. A.G.(RIVERS STATE) V. A.G. (BAYELSA STATE)& ANOR.(2012)LPELR-9336(SC). OYO STATE BOARD OF INTERNAL REVENUE V. UNIVERSITY OF IBADAN (2014) ALL FWLR (PT.736) 595 AT 609.

In response, the respondents’ counsel submitted that the settled position of the law as pronounced by the Supreme Court is that the University of Nigeria and its officers are public officers within the purview of Section 2 (a) of the OFFICERS PROTECTION ACT as defined bySection 18 (1) of the INTERPRETATION ACT which is the same as the definition of a public officer in

Section 3 of INTERPRETATION LAW OF NORTHERN NIGERIA, 1963 relied on IBRAHIM V. J.S.C. (SUPRA). He referred to UNIVERSITY OF JOS V. IKEGWUOH (2013) 9 NWLR (PT.1360) 478. PETER NWANGWU V. UNIVERSITY OF NIGERIA & ANOR. (2017) LPELR-43772(CA). ROE LTD V. UNIVERSITY OF NIGERIA (2018) 6 NWLR (PT. 1616) 420.

RESOLUTION
Section 2 of the PUBLIC OFFICERS PROTECTION ACT provides that:
“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 shall have effect-
(a) Limitation of Action
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 discharge of such person from prison; “
Section 1 of the INTERPRETATION ACT provides that:
“1. This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question.”
By the clear words ofSection 1 of the INTERPRETATION ACT, resort will be had to the Act in the interpretation of any enactment including the PUBLIC OFFICERS PROTECTION ACT. Therefore, in the search for the meaning and scope of the words “any person” used in Section 2(a) of the PUBLIC OFFICERS PROTECTION ACT, the Court must be guided by the definition of “person” in Section 18 (1) of the INTERPRETATION ACT where it is stated that “person” includes anybody of persons, corporate or unincorporate;” and public officer is defined as a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or of the public service of a State. From the avalanche of cases already decided by this Court and the Supreme Court on the issue of

whether the words “any person” used in the PUBLIC OFFICERS PROTECTION ACT covers both natural persons and corporate bodies, the clear position of the Supreme Court which this Court has been following as it is supposed to do by the doctrine of stare decisis and for certainty of the law is that the word ‘person’ in that section does not only refer to natural persons but extend to public bodies, artificial persons sued by their official names or titles such as the respondents in this case. See AIYETAN V. NIGERIA INSTITUTE OF OIL PALM REASEARCH (1987) LPELR-275 (SC) AT 27-28 (G-B) where the Supreme Court Per NNAMANI, J.S.C. stated the meaning, purport and applicability of the Public Officers Protection Act as follows:
“The Public Officers Protection Act, Cap 168 Laws of the 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 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.”

which were decided by this Court following the law as pronounced by the Supreme Court in the above cases are EL-RUFAI V. SENATE OF THE NATIONAL ASSEMBLY & ORS. (2014) LPELR-23115 (CA) AT 40-42 (A-G). HAMMAN V. NDLEA & ORS. (2018) LPELR- 47021 (CA) AT 9-15 (B-E). NWAFOR V. NCS & ORS. (2018) LPELR-45034 (CA) AT 20 -21 (A-B).WULANGS V. CBN (2019) LPELR-48085 (CA). EJIGBO LG & ORS. V. ADEPEGBA & ORS. ( 2019) LPELR- 48060 (CA) AT 15-18 (D-A). OMUETI V. UNIUYO & ORS (2019) LPELR-47155 (CA). I cannot decipher why inspite of the legion of cases in which this Court and the Supreme Court have severally made a firm pronouncement that the words “any person” extends to and include public bodies, artificial persons, institutions or persons sued by their official names or titles, the appellant’s counsel would continue to argue the contrary. Issue 2 is resolved against the appellant.

On issue 3, the appellant’s counsel argued that the 2nd and 3rd respondents being vested with statutory powers and functions under Section 2(1) (c) of the UNIVERSITY OF NIGERIA ACT and FIRST SCHEDULE to the Act, they are impliedly conferred

with legal personality by the Act and are capable of being sued. He referred to CARLEN V. UNIVERSITY OF JOS (1994) 1 NWLR (PT.323) 631 AT 658-659 (E-D).

In response, the respondent’s counsel argued that Section 1(1) of the University of Nigeria Act having expressly made provision for who can sue and be sued under the Act, the 2nd and 3rd respondents cannot sue or be sued. He further argued that holding that the 2nd and 3rd respondents can be sued amount to joining an agent of a disclosed principal in a suit for the alleged wrong of the disclosed principal which is contrary to the law. He submitted that the ruling of the Court below that neither the 2nd nor the 3rd respondent is known to law is correct. He referred toQUA STEEL PRODUCTS LTD. AND ANOR V. AKPAN BASSEY (1992) 5 NWLR (PT.239) 67 AT 69. NIGER PROGRESS LTD. V. NORTH EAST LINE CORPORATION (1989) 3 NWLR (PT.107) 68 AT 83-84.

RESOLUTION
The University of NIGERIA was established by the UNIVERSITY of NIGERIA Act Cap. U11, VOLUME 15, LAWS OF THE FEDERATION OF NIGERIA, 2004.Section 1 (1) and (2) of the Actprovide as follows:
“(1) The University of Nigeria ( in this Act referred

to as “ the University”) established by the University of Nigeria Law (in this Act referred to as the “ the former Law”) shall continue in being as a body corporate with perpetual succession and a common seal.
(2) The University may sue or be sued in its corporate name.”
Section 2(1) (c) creates a senate for the university and the office of the Vice-Chancellor among the bodies and officers constituting the university.
Section 3(2) which provides for the exercise of the powers conferred on the university by Section 3(1) reads thus:
“3(2) Subject to the provisions of this Act and of the statutes, and without prejudice to Section 8(2) of this Act, the powers conferred on the University by Subsection (1) above shall be exercisable on behalf of the University by the council or by the senate or in any other manner which may be authorised by statute.”
Section 6(1) sets out the functions of the Council of the University in these words:
“6 (1) subject to the provisions of this Act relating to the visitor, the council shall be the governing body of the University and shall be charged with the general

control and superintendence of the policy, finances and property of the university, including its public relations.”
The functions of the Vice-Chancellor of the university are spelt out in Section 8 of the Act, Subsection (2) of which provides:
“8(2) Subject to Section 6 and 7 of this Act and the provisions of this Act relating to the Visitor, the Vice-Chancellor shall have the general function, in addition to any other functions conferring on him by this Act or otherwise, of directing the activities of the University, and shall to the exclusion of any other person or authority be the Chief Executive and Academic Officer of the University and ex-officio chairman of the senate.”
Paragraph 6(1) of the First Schedule to the Act creates the office of the Registrar of the University and sets out his functions as follows:
“6(1) There shall be a Registrar, who shall be the Chief
Administrative Officer of the University and shall be responsible to the Vice-Chancellor for the day-to-day administrative work of the university except as regards matters for which the bursar is responsible in accordance with Paragraph 7 (2) of this Schedule.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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23-24(F-C). ATAGUBA & CO. V. GURA NIG.LTD.(2005) LPELR-584(SC) AT 11-12 (G). KWAGE & ORS. V.UPPER SHARIA COURT GWANDU & ORS. (2017) LPELR-42508 (SC) AT 18-20 (B-F). Since the Vice Chancellor and the Registrar of the University of Nigeria are creations of the University of Nigeria Act assigned with specific statutory duties and functions, the performance of which could adversely affect the right of others, the right to sue and be sued in a Court of Law is implied. The holding of the Court below that neither the 2nd nor the 3rd respondent is known to law for the purpose of suing or being sued is wrong.
The argument of the respondents’ counsel that the 2nd and 3rd respondents are agents of a disclosed principal is in my view misconceived. The 2nd and 3rd respondents are empowered to by the Act to perform specific functions and duties and they are answerable for their actions and inactions in the course of performing their functions and exercising their statutory powers. Secondly, the appellant’s action is an action in tort. The law is settled that an agent who commits a tort on behalf of his principal is a joint tort feasor with his

principal and may be liable either alone or together with his principal for his action or conduct and may be sued either alone or with his principal. See DUNU MERCHANTS LTD. V. OBANYE & ORS. (2014) LPELR-24059 (CA) AT 54 (C-G). KATOL INVESTMENT LTD. V.TAJ,DEVELOPMENT CO.LTD.& ORS. (2018) LPELR-46483 (CA) AT 19-21 (F-C). For these reasons, issue 3 is resolved in favour of the appellant.

In conclusion, issues 1 and 2 having been resolved against the appellant, the appeal fails. It is hereby dismissed. Parties shall bear their own costs.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege Of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.

For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I accordingly dismiss it.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Misitura Omodere Bolaji-Yusuff, JCA just delivered. I am in agreement with the decision reached and the reasoning

behind the decision.

For the detailed reasons adumbrated in the lead judgment, I too, hold that the appeal lacks merit. Same is equally dismissed. I abide by the order as to cost made in the lead judgment.

Appearances:

Chief (Hon.) Ray Nnaji, with him, A. O. Ukah For Appellant(s)

Michael Ifeanyi Nwamkpa For Respondent(s)