AKWA SAVINGS AND LOANS LTD v. BENSON-BASSEY (2020)

AKWA SAVINGS AND LOANS LTD v. BENSON-BASSEY

(2020)LCN/14694(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, October 30, 2020

CA/C/395/2016

RATIO

BRIEF: INTENTION OF A REPLY BRIEF

This is founded on the established legal principle that a reply brief, is strictly intended to respond or address new issues arising from the respondents’ brief, and not meant to canvass new issues. see FRN vs. Iweka (2013) 3 NWLR, 285, Kanu vs. A.G. Imo State (2014) 6 NWLR (pt. 1402) 1. PER BARKA, J.C.A.

PRELIMINARY OBJECTION: PRINCIPLES GUIDING FILING PRELIMINARY OBJECTION TO AN APPEAL

I agree with learned counsel’s argument only to the effect that where the wording of a statute are clear, the Court should not hesitate in giving effect to their literal meaning and further that Courts are duty bound seeing to it, that parties duly comply with the rules of Court as decided in Ugboh vs. Ugboh (2009) 3 NWLR (Pt. 1127) 108. Let it however be stated that by Order 10 Rule 1 of this Court, which governs the period within which a respondent desirous of raising a preliminary objection to the filing of an appeal, and which also streamlines the respondents’ decision relying upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days’ notice before the hearing, setting out the grounds for the objection, seeOduneye vs. F.R.N (2014) 3NWLR (Pt. 1425) 545, Amah vs. Nwankwo (2007) 12 NWLR (Pt.1049) 552.
The rationale herein is that appellant be accorded adequate notice of the preliminary objection filed, and to react appropriately if need be. It is now accepted practice that arguing a preliminary objection in the respondent’s brief is an accepted practice and thus in conformity with the requirement of the rule. See Okereke vs. James (2012) 16 NWLR (Pt. 1326) 339.
I must say that the procedure adopted by the appellant raising a preliminary objection to a preliminary objection appears to be out of the way and unsustainable, and has been laid to rest, for as held by Saulawa JCA in Akingbola vs. Chairman EFCC (2012) 9 NWLR (Pt. 1306). 475, also cited as (2012) LPELR – 8404 (CA):
“Although an appellant is at liberty to urge the Court to discountenance a preliminary objection or strike it out, there is no room, in the rules of this Court giving the appellant the opportunity to also file a preliminary objection against the one filed by the respondent”. I wholly agree with him. PER BARKA, J.C.A.

APPEAL: PROCEDURE FOR RAISING AN ATTACK AGAINST A SPECIFIC GROUND OF APPEAL WHICH DOES NOT UPROOT THE ENTIRE NOTICE OF APPEAL

It is now trite law that an attack against a specific ground of appeal which does not uproot the entire notice of appeal can only be raised by way of motion, praying that the said ground be struck out. See Wechie vs. Okwuworlu (2015) 11 NWLR (Pt. 1469) 95, NNPC vs. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148. In the latter case, Rhodes-Vivour JSC stated thus:
“Where as in this appeal, the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate”. PER BARKA, J.C.A.

AFFIDAVIT: POSITION OF THE LAW WHERE AVERMENTS IN A COUNTER AFFIDAVIT ARE NOT COUNTERED

The position of the law is that where averments in a counter affidavit are not countered, they are accepted to be true and correct and therefore require no further elaboration, on the bases that facts admitted require no further proof. In Henry Stephens Engineering Ltd vs. A Yakubu (NIG) Ltd (2009) LPELR-1363 (SC), the Apex Court ruled that failure to swear to a further affidavit where there is a counter affidavit which is unchallenged, it is deemed that the counter affidavit is admitted as being correct. Some of the other cases on the point are Jumbo Nwanganga & 5 ors vs. Mil. Governor of Imo State & 2 ors. (1987) 3 NWLR (pt. 59) 182, AG Plateau State vs. AG Nassarawa State (2005) 4 SCNJ 120 @ 175, Obikoya vs. Wema Bank Ltd (1989) 1 NWLR (pt. 96) 157, Din vs. African Newspapers (1990) 3 NWLR (pt. 139) 392, Obeya vs. First bank of Nigeria (2010) LPELR-4666 (CA). PER BARKA, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

AKWA SAVINGS AND LOANS LTD. APPELANT(S)

And

BARR. ANTHONY E. BENSON-BASSEY RESPONDENT(S)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The respondent herein as Claimant before the lower Court took out a writ of summons against the appellant herein, and by paragraph 12 of the statement of claim filed on the 10/11/2014 sought for the following reliefs-

“a. One Hundred Million Naira (N100,000,000.00) being special, general, exemplary and/or aggravated damages for breach of express and/or implied banking contract existing between the claimant and the defendant in that the Claimant being a customer of the Defendant, operating a Saving Account No. 1002008 (but now re-christened as savings Account No. 0101-001-0002003) with the defendant, was, without sufficient prior notice or at-all, locked out and prevented from accessing his money when the defendant suddenly closed its doors to business on 31/3/14 by 12.00 noon well before the defendant’s usual closing time of 4.00pm. The claimant was thereby prevented from withdrawing the sum of N40,000.00 for payment of his Practicing fees as a lawyer before the closing time for the said payment being 4.00pm (being official time for close of banking business) on the said 31/3/14 and

also meeting his other needs thus occasioning him severe and irreparable injuries, monumental losses and humiliation.
PARTICULARS OF SPECIAL DAMAGES
1. Professional Fees to his Lawyer – N2,000,000.00
2. Filling Receipts of the Case – N 10,800.00
Total of special damages – N2,010,800.00
Add General damages – N 50,000,000.00
Add aggravated and/or
Exemplary damages of – N 47,980,200.00
Grand Total – N100,000,000.00
b. AND/OR ALTERNATIVELY:
N100,000,000.00 being special, general, exemplary and/or aggravated damages against the Defendant in that on 31/3/14 at 12 noon or thereabout, and without prior notice to the claimant, or at all, the Defendant negligently and/or arbitrarily closed its doors for business before its usual closing time of 4p.m without due regards to its duty of care to the claimant and thereby preventing the Claimant operating a Saving Account No. 1002008 (but now re-christened Account No. 0101-001-0002003) at its Oron Road, Uyo Branch of the bank from withdrawing the sum of N40,000.00 for payment of his professional fees as a lawyer, before the closing date for the said payment which was 31/3/14,

and meeting his other needs, thus occasioning him severe and irreparable injuries, monumental losses and humiliation.
PARTICULARS OF SPECIAL DAMAGES
1. Professional Fees to his Lawyer – N2,000,000.00
2. Filling Receipts of the – N2,010,800.00
Add General damages – N50,000,000.00
Add aggravated and/or
Exemplary damages of – N47,980,200.00
Grand Total – N100,000,000.00
c. N500,000.00 cost of this action.

The grouse of the respondent in filing the writ of summons against the appellant are set out in the statement of claim. It was therefore the respondent’s case that appellant being the bankers of the respondent, and doing their business at the Uyo branch and on the 31/3/2014, appellant desirous of paying his Nigerian Bar Association practicing fees was unable to do so being that appellant closed their business before the normal business hours. The claimant piqued by that action wrote to the appellant claiming damages without response, thus the institution of the action against the appellant before the lower Court.

Appellant on receipt of the statement of claim, dutifully filed a statement of defense on the

12/3/2015 with the leave of the Court, wherein it denied each and every allegation of fact contained in the statement of claim.

On the 8th of October, 2015, appellant filed a Notice of Preliminary objection pursuant to the inherent jurisdiction of the Court; hinged on the following grounds;
1. The claimant’s action is statute barred by virtue of the provisions of Section 2(a) of the Public Officers (Protection) Act, CAP P41, Laws of the Federation of Nigeria, 2004.
2. The Claimant’s action is also statute-barred by virtue of the provisions of Section 1(1) of the Public Officers Protection Law of Akwa Ibom State CAP 104, Laws of Akwa Ibom State, 2000.

In support of the preliminary objection filed is an affidavit of 6 paragraphs deposed to by one Miss Esther Umoh, a litigation clerk in the law firm of Jubilee Chambers. There is also a written address in support of the preliminary objection filed on the same date being the 8/10/2015.

The claimant filed a reply to the statement of defence with the leave of Court, claimant also with the leave of Court filed a counter affidavit on the 28/10/2015, supported by a written address

filed on the same date. There is filed the defendant’s reply on points of law dated and filed on the 21/4/2016. The vexed ruling was delivered on the 13th of July, 2016, wherefore the preliminary objection was overruled.

Dissatisfied with the ruling of the lower Court, appellant filed a Notice of Appeal on the 27th of July, 2016, predicated on two grounds of appeal.

The record of appeal was duly transmitted to this Court on the 22/10/2016. Appellant filed a brief of argument on the 30/1/2017. Upon receiving the respondent’s brief, learned counsel filed a reply brief on the 10/10/2017, deemed filed on the 8/9/2020, while the respondent in opposing the appeal filed a respondent’s brief incorporating a preliminary objection on the 29/9/2017.

On the 6/10/2020 being the scheduled hearing date, the learned counsel for the respondent identified the process filed by him on behalf on the respondent, adopted the same and urged the Court to strike out the appeal and to uphold the ruling of the lower Court.

There being evidence that Dr. Obot Obot had been served hearing notice against the scheduled hearing date, and having filed

appellants brief and a reply brief as aforesaid, this Court pursuant to the provision of Order 19 Rule 9(4) deemed the appellants appeal as having been argued.

In the brief filed on behalf of the appellant by Dr. Obot Obot and specifically at page 2 thereof two issues were isolated for the determination of the appeal as follows:
1. Whether the appellant as a public officer within the contemplation of Section 1 (1) of the Public Officers Protection Law, CAP P41, Laws of Akwa Ibom State of Nigeria 2000 and availing itself of the protection offered under the said law.
2. Whether Respondent suit is statute barred by virtue of the provisions of Section 1 (1) of the Public oOfficers Protection Law CAP 104, Laws of Akwa Ibom State 2000.

Mr. Ita B. Ekpo, who settled the respondent’s brief on the other hand, and at pages 12-13 thereof, raised a Notice of preliminary objection challenging the competence of the appeal filed. That notwithstanding, learned counsel identified a lone issue for the resolution of the appeal as follows:
Whether from the evidence proffered by the appellant and placed at the disposal of the lower Court, the

appellant can be said to be a public officer entitled to avail herself of the indulgence offered to public officers by the provisions of Section 1(1) of the Public Officers (Protection) Law CAP P41, Laws of Akwa Ibom State of Nigeria.

First, to be dealt with however is the preliminary objection raised by the respondents.

PRELIMINARY OBJECTION
In the Preliminary Objection raised by the respondent, embedded in the brief filed on the 29/9/2017 was anchored on two grounds namely;
a) That the decision appealed against being interlocutory in nature and not final, the notice of appeal of the appellant is incompetent, leave having not been first obtained before the appellant filed same;
b) That the Appellant’s ground of appeal being one of mixed law and facts, and the appellant having not first obtained leave before filing his said Notice of Appeal, the said ground of appeal is incompetent and or is unsustainable.

Submitting on the first ground, learned counsel referred to Section 241 (1)(a) of the Constitution of the Federal Republic of Nigeria (1999) and argued that an appeal lies as of right from a High Court to the Court of

Appeal, where the decision sought to be challenged is final; and where the decision to be challenged is not final, then the leave of Court must be sought and obtained. He stated that the test for determining whether a decision is final or interlocutory is as set out in the case of Sanni vs. Lateju and Ors. (2012) LPELR- 9300, Akinsanya vs. UBA Plc. (1986) 4NWLR (Pt. 35) 222 @ 296, Lion Bank of Nigeria Plc vs. Siyak Industries (NIG) Ltd. (2007) All FNLR (Pt. 344) 106 @ 121.

He submitted that where the principles enunciated in the cases cited are applied to the case at hand, it will be obvious that the ruling of the lower Court to the effect that it had jurisdiction, is interlocutory.

He goes on to contend that Appellant in the circumstance, ought to have obtained leave of either the lower Court or this Court before filing the Notice of Appeal challenging the interlocutory ruling. The consequences of failing to do so, counsel argued is that the appeal is incompetent, thereby robbing this Court the jurisdiction to entertain the appeal. The case of Abdul vs. APC (2014) 1 NWLR (Pt. 1388) 299 @ 327 and Macfoy vs. UAC Ltd (1962) AC 152 adopted in

Aderibigbe and Anor vs. Abidoye (2009) 10 NWLR (Pt. 1150) 592 were relied upon.

Learned Counsel also cited and relied on the case of Madukolu vs. Nkemdilim (1962) 2 SCNLR 341 amongst many others on when a Court is competent to exercise jurisdiction, finally submitting, relying on NDLEA vs. Zakari (2015) 7NWLR (Pt. 1458) 361, to submit that an appeal filed without obtaining leave is incompetent and thereby liable to be struck out.

On the 2nd limb of his objection, learned counsel still referred to Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria (1999), to argue that an appeal is of right, where the ground of appeal sought to be relied on is based on issues of law alone. He referred to ground One of the grounds of appeal, i.e. the Omnibus ground, contending that the ground relates to facts. He thus submitted that the ground is incompetent as the leave of Court was neither sought nor obtained, counsel still relied on NDLEA vs. Zakari (supra) on the legal principle. He further cited the cases of GOC vs. Adio (1995) 2 NWLR (Pt. 379) 570, Amuda vs. Adelodun (1994) 8 NWLR (Pt. 360) 23 amongst others on the criteria for determining whether a

ground of appeal is of law or fact or, mixed law and facts, submitting that the claim by the appellant that she is a public officer, which was disputed by the respondent is a question of fact, and the appellant having so asserted, must provide concrete proof that she was indeed such a public officer.

Learned counsel further citing the case of Addex Petroleum Development Company Ltd vs. Ohaegbulem and Ors. (2009) LPELR – 3594 (CA), of the view that the principle of law has since been established that failure to obtain leave or the absence of prior leave where and when necessary is fatal to the competence of such a ground of appeal. Where all the grounds of appeal are incompetent counsel argued, the Court should dismiss the appeal.

The response by the appellant to the preliminary objection is located in the reply brief filed on the 19/10/2017, deemed filed on the 8/9/2020. Therein, learned counsel sought to raise the issue of the competence of the respondent’s brief on the ground that it was filed out of time, and thereby urged the Court to discountenance the brief filed. Also responding to the two grounds of objection raised in the

respondent’s brief, it was argued that the preliminary objection failed to conform with Order 10 Rule 1 of the Court of Appeal Rules (2016). He contended that Respondent having failed to conform with the rules of Court, this Court should discountenance the said preliminary objection.

On whether the decision complained of is interlocutory, and whether appellant satisfied the conditions precedent for appealing against the said decision, counsel conceded to the fact that the decision was interlocutory, but contended that appellant did not need the leave of Court, since the ground of appeal raised the issue of jurisdiction which is a point of law. He argued that it was the ruling of the lower Court, which overruled the appellants objection and assumed jurisdiction, that gave rise to the appeal. He then relied on Adeyemi vs. Agbede (2008) All FWLR (Pt. 412) 1163 @ 1165, to submit that the instant appeal was filed as of right.

On whether the grounds of appeal submitted to this Court can be effectively dealt with, without resort to mix law and facts, learned counsel reiterated the fact that the appeal is of right, and further that the ground raised an

issue of law based on accepted and undisputed facts, and relied on NNSC Ltd vs. Establishment Sima of Vadus (1990) 7 NWLR (Pt. 164) 526. The fact counsel argued is that the brief was filed in excess of the three months allowed by the law, and thereby urged the Court to resolve the issue in favour of the appellant.

On whether the lone ground of appeal is sustainable in law and whether appellant had a duty to show that it is a public officer by law, and covered under Section 1(1) of the Public Officers Protection Law Cap. P41 of the Akwa Ibom State of Nigeria, it was argued that the ground of appeal is sustainable because it is founded on jurisdiction which is law.

I have no hesitation whatsoever determining the contention of the appellant with regards to whether respondent’s brief was filed out of time or not. This is founded on the established legal principle that a reply brief, is strictly intended to respond or address new issues arising from the respondents’ brief, and not meant to canvass new issues. see FRN vs. Iweka (2013) 3 NWLR, 285, Kanu vs. A.G. Imo State (2014) 6 NWLR (pt. 1402) 1.

In any case, the respondents’ brief

filed out of time was duly regularized by order of Court granted on the 8/9/2020, rendering the objection herein as that without merit and thereby discountenanced. Learned counsel equally complained that Order 10 Rule 1 of the Court of Appeal Rules (2016). Which provides that:
“A respondent intending to rely upon a preliminary objection to the hearing of an appeal, shall give the appellant three clear days’ notice, thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time………..” was not complied with.
I agree with learned counsel’s argument only to the effect that where the wording of a statute are clear, the Court should not hesitate in giving effect to their literal meaning and further that Courts are duty bound seeing to it, that parties duly comply with the rules of Court as decided in Ugboh vs. Ugboh (2009) 3 NWLR (Pt. 1127) 108. Let it however be stated that by Order 10 Rule 1 of this Court, which governs the period within which a respondent desirous of raising a preliminary objection

to the filing of an appeal, and which also streamlines the respondents’ decision relying upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days’ notice before the hearing, setting out the grounds for the objection, seeOduneye vs. F.R.N (2014) 3NWLR (Pt. 1425) 545, Amah vs. Nwankwo (2007) 12 NWLR (Pt.1049) 552.
The rationale herein is that appellant be accorded adequate notice of the preliminary objection filed, and to react appropriately if need be. It is now accepted practice that arguing a preliminary objection in the respondent’s brief is an accepted practice and thus in conformity with the requirement of the rule. See Okereke vs. James (2012) 16 NWLR (Pt. 1326) 339.
I must say that the procedure adopted by the appellant raising a preliminary objection to a preliminary objection appears to be out of the way and unsustainable, and has been laid to rest, for as held by Saulawa JCA in Akingbola vs. Chairman EFCC (2012) 9 NWLR (Pt. 1306). 475, also cited as (2012) LPELR – 8404 (CA):
“Although an appellant is at liberty to urge the Court to discountenance a preliminary

objection or strike it out, there is no room, in the rules of this Court giving the appellant the opportunity to also file a preliminary objection against the one filed by the respondent”. I wholly agree with him. I therefore agree with the learned counsel representing the respondents, that the preliminary objection filed by the respondent herein complied with the requirements of Order 10 Rule 1 of the Court of Appeal Rules (2016), and the submission of the appellant thereon misconceived, this is more so since the appellant had more than the 3 days’ notice before the hearing of the appeal. The objection by the appellant is of no moment and it is accordingly struck out”

I cannot say more on the issue.
On the contention by the respondent that the decision appealed against being interlocutory in nature, and not final, the said notice of appeal is incompetent on the basis that leave was not obtained in obedience to the provisions of Section 241 (1)(a) of the Constitution of the Federal Republic of Nigeria (1999).

Both Parties rightly are on common ground in that the decision appealed against is an interlocutory decision of the

lower Court. This being so, for resolution is whether the leave of Court is necessary before filing the instant appeal in the circumstance of the case.
I have studied the proceedings of the lower Court in respect of the issue at hand, and my understanding is that the appellant herein by the earlier preliminary objection filed before the lower Court sought to challenge the jurisdiction of the lower Court in entertaining the action filed before it on the ground that, the action was statute barred. In resolving the issue, the lower Court considered the totality of the arguments for and against the objection that it was bereft of the jurisdiction to entertain the action, and concluded that indeed it had jurisdiction to entertain the matter. It is on that premise that I agree with the appellant that the important condition in the determination of the nature of a ground of appeal does not lie on the form, but rather upon the question propped up for consideration. See Visafone Communication Ltd vs. Musical Copyright Society of Nigeria Ltd (2011) LPELR– 9063 (CA) Per Jauro JCA. I agree with the appellant that it was the ruling delivered by the lower Court

assuming jurisdiction that formed the fulcrum of the instant appeal. It is therefore a jurisdictional matter for which leave of Court is unnecessary and the objection discountenanced on that ground.

The second arm of the preliminary objection seeks to question the competency of ground one of the grounds of appeal. It is now trite law that an attack against a specific ground of appeal which does not uproot the entire notice of appeal can only be raised by way of motion, praying that the said ground be struck out. See Wechie vs. Okwuworlu (2015) 11 NWLR (Pt. 1469) 95, NNPC vs. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148. In the latter case, Rhodes-Vivour JSC stated thus:
“Where as in this appeal, the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate”.

In the instant case, the appeal lodged is grounded or predicated upon two grounds of appeal, and the attack on ground one, by way of a preliminary objection which obviously does not obviate the striking out or termination of the appeal is obviously inappropriate. In

any event, I am of the view that the ground being complained against raises a jurisdictional question for which leave of this Court or the Court below is unnecessary.

In conclusion, I see no merit in the preliminary objection filed and thereby dismiss the same.

The Main Appeal.
The learned appellant’s counsel moving the appeal, referred to the holding of the lower Court at page 138 of the record, where the lower Court had this to say;
“In the instant case, the defendant has failed to refer the Court to the specific law or statute creating the defendant as a statutory body, such as to avail defendant the indulgence sought in that law under the provision of the Public Officer’s Protection Law. In the absence of any law creating the defendant as a statutory body worthy of being considered as a public body entitled to be accorded official status as a public officer under the Public Officer’s Protection Law (as submitted by Dr. Obot E. Obot), I hold that the defendant cannot avail itself of the protection offered under the said law. This objection is in the circumstance overruled for lacking in merit”,
and

submitted that the reasons given by the lower Court in overruling its preliminary objection were not cogent enough to have overruled the preliminary objection. This counsel stated is because the record showed that appellant Akwa Savings and loans Ltd, is a limited liability company incorporated by the Akwa Ibom State Government at the Corporate Affairs Commission under the Companies and Allied Matters Act. He submitted that the Court in circumstances such as these, is bound to draw the inference as to the existence of facts where there is no evidence to the contrary and relied on Ogbuanyinya vs. Okudo (1990) 7SC (pt. 1) 66.

Learned counsel argued that what ought to have concerned the Court was whether appellant fulfilled the two conditions settled by the Apex Court inHassan vs. Aliyu (2010) 17 NWLR (pt. 1223) 547, entitling a person to come under the protection of the Public Officer’s Protection Act, which are;
i. The person must be a Public Officer,
ii. The act done by the person in respect of which the action was commenced, was an act done in pursuance or execution or intended execution of a law of public duty or authority. The case of

CBN vs. Okojie (2004) 10 NWLR (pt. 882) 488 was also cited in support of the legal principle.

Learned counsel submitting further, stated that the appellant is a Public Officer because the Public Officer’s Act applies to both Natural and juristic person, and referred to judicial pronouncements on the issue, including that of Ibrahim vs. Judicial service Committee, Kaduna State and Anor (1998) 14 NWLR (pt. 584) 1 per Iguh JSC,Francis Ofoli vs. Civil Service Commission (2008)2NWLR (pt. 1071) 238, University of Ilorin v. Adeniran (2006) LPELR 1180(CA)

Still submitting counsel stated that the dragnet of persons capable of availing himself/itself of the protection offered under the Public Officer’s Act had since been extended to cover limited liability companies like the appellant and made reference to the case of Suleiman vs. Kaduna State Polytechnic (2006) LPELR-11648(CA). He maintained that from the case law cited, appellant had satisfied the first limb of the requirements set out in Hassan vs. Aliyu (supra). With respect to the 2nd limb; which is whether the act done by the defendant in respect of which the action was commenced was an act

done in pursuance or execution or intended execution of a law or Public duty or authority, it was submitted for the appellant that the appellant a Mortgage Bank incorporated as a limited liability company to carry out activities in Public duties on matters of mortgage, it can be safely stated that appellant met the requirement of the second limb. He urged the Court to resolve the issue in favour of the appellant and to hold that appellant satisfied all the prerequisites of being a Public Officer and entitled to avail itself of the protection offered under the Public Officer’s Protection law of Akwa Ibom State.

The learned respondents counsel identified only one issue in resolving the appeal. It is whether from the evidence proffered by the appellant and placed at the disposal of the lower Court, the appellant can be said to be a Public Officer entitled to avail herself of the indulgence afforded to Public Officers by the provisions of Section 1(1) of the Public Officer (Protection) Law CAP P41, Laws of Akwa Ibom State of Nigeria.

Therein, it was submitted by learned counsel that the mere Ipsi dixit of the appellant that she is a public officer

without more is not enough. Counsel submitted that appellant ought to have supplied enough materials as a Court of law cannot be sent on a voyage of discovery. He argued that appellant ought to have supplied or exhibited the legislation of the Akwa Ibom State Government setting her up as one of its agencies, as he who alleges by law, has the anus of proof, and relied on the case of Muhammed vs. DHL International Ltd (2001) FWLR (pt. 38) CA. Counsel still argued that the onus of adducing further evidence resides on the person who will fail if such evidence were not produced, contending that despite the fact that respondent denied that appellant was not a public officer, appellant failed to lay further materials for the lower Court’s consideration .

He went still further to argue, though conceding that appellant was incorporated as a limited liability company and licensed to carry out banking operations, the mere fact of its incorporation does not confer on it the status of a public officer. He admits that even though the Court is entitled to drew inference as to the existence of facts where there is no evidence to the contrary, the respondent having

denied that appellant is not owned by Akwa Ibom State Government, that inference cannot be drawn by the lower Court.

On whether the trial Court ought to have taken judicial notice of the fact that appellant is owned by the Akwa Ibom State Government, counsel posits on the authority of A.G Bendel State vs. AG Federation (2001) FWLR (pt. 65) 448, that it is not permissible for a Court of law to speculate.

He maintained that appellant ought to have provided the necessary, documentary particulars to substantiate its claim and failing to do so, this Court should hold that appellant failed to discharge the onus placed on it by law. Counsel then argued conclusively that appellant having failed to provide the necessary materials supporting their claim that it is a public officer, and thereby entitled to the protection offered by the public officer’s protection law, the lower Court’s decision to the effect that no such materials are before it enabling it to hold that appellant was a public officer, that decision cannot be faulted. He then argued that appellants arguments with respect to juristic and non-juristic parties, as well as the cases

cited thereon are inapplicable, further contending that the relationship between the parties is contractual and thereby bound by the terms of the contract.

The crux of the appellant’s complaint with respect to the instant issue is whether the lower Court was right when it held that appellant failed to establish that it was a public officer within the contemplation of the Public Officer’s (Protection) Law, applicable to Akwa Ibom State of Nigeria.

The resolution of the issue calls for a clear understanding of the processes filed before the lower Court in support and against the preliminary objection filed, particularly, this Court must of necessity resolve whether appellants were able to establish that it is a public officer within the meaning of the Public Officer’s (Protection) Law of Akwa Ibom State.

Let me commence looking at the issue from the contents of the preliminary objection generating the instant appeal. It reads:
TAKE NOTICE that this honourable Court will be moved on the 13th day of October 2015 at the hour of 9 0’ clock in the forenoon or so soon thereafter as the Defendant/Applicant’s Counsel on

its behalf may be heard by way of preliminary Objection to the jurisdiction of this honourable Court to hear this suit on the following grounds:
a) The Claimant’s action is statute barred by virtue of the provisions of Section 2(a) of the Public Officers (Protection) Act, CAP P41, Laws of the Federation of Nigeria, 2004.
b) The Claimant’s action is also statute barred by virtue of the provision of Section 1(1) of the Public Officers Protection Law of Akwa-Ibom State, CAP 104, Laws of Akwa Ibom State, 2000.
TAKE FURTHER NOTICE that the defendant shall in addition to the above statutes rely on the Claimant’s writ of summons and statement of claim as well as the defendant’s statement of defense already filed before this Court in arguing this objection, and shall urge the Court to strike out this suit.

Also in the statement of defense filed, the defendant now appellant averred therein that:
The defendant admits paragraph 2 of the Claimant’s Statement of Claim, and avers further that she is an agency of the Government of Akwa Ibom State, established and fully owned by the government as a Primary Mortgage

Institution, and operating also under license of the Central Bank of Nigeria and the supervision of the Nigerian Deposit Insurance Corporation to provide ancillary banking services to members of the public.

In the affidavit in support of the objection, one Esther Umoh a litigation clerk in jubilee chambers on the authority of the appellant deposed to the fact that:
3. that the defendant is an agency of the government of Akwa Ibom State, fully owned by the Government of Akwa Ibom State.
6. that counsel to the defendant, Dr. Obot Obot of Jubilee Chambers, 5 Udotung Ubo Street Uyo, has informed me, and I verily believe him that the claimants action is against a corporate body which if this Court decides that it is a public officer by that status, this honorable Court will further decide whether it has the jurisdiction to hear this matter.

The respondent responded to the statement in the preliminary objection, by stating in the affidavit of the claimant opposing the preliminary objection, by stating that:
4 (b) The defendant is not a public officer. She is a privately owned limited liability company and a privately owned banking concern

engaged in private banking business.

The lower Court on the issue faulted the appellant for not providing enough particulars from which it could deduce that appellant was a public officer within the meaning of the act, and thereby dismissed the objection. Appellant now submits that the status of the applicant in the preliminary objection cannot be determined from the point of view of the counter affidavit, relying on Ibrahim vs. Judicial Service Committee (supra), Francis Ofili vs. Civil Service Commission (supra) and University of Ilorin vs. Adeniran (supra).
No doubt the cases above cited are formidable authorities from this Court, establishing the fact that any person refers to artificial and natural persons alike. Ogunwumiju JCA in the case of University of Ilorin vs. Adeniran (supra) relying on the dictum of Iguh JSC in Akeem vs. Unibadan (2003) 10NWLR (pt. 829) 584 @ 596 held that the Public Officers Protection Act protects as distinct entities in certain cases public officers, which includes corporation sole or public bodies corporate or incorporate. In that case, UNILORIN being a federal Government Agency was held to be a public officer

within the ambit of the Act. This much is settled. The area to my mind which calls for resolution is whether appellant is an agency of the Akwa Ibom State Government. I have before now reproduced the various affidavits in support as well as the counter affidavit filed. The position of the lower Court is that appellant ought to have in the circumstance provided further materials upon which it could discern whether appellant is an agent of the Akwa Ibom State Government or not. I do not see where the lower Court can be said to have gone wrong.
The position of the law is that where averments in a counter affidavit are not countered, they are accepted to be true and correct and therefore require no further elaboration, on the bases that facts admitted require no further proof. In Henry Stephens Engineering Ltd vs. A Yakubu (NIG) Ltd (2009) LPELR-1363 (SC), the Apex Court ruled that failure to swear to a further affidavit where there is a counter affidavit which is unchallenged, it is deemed that the counter affidavit is admitted as being correct. Some of the other cases on the point are Jumbo Nwanganga & 5 ors vs. Mil. Governor of Imo State & 2 ors. (1987)

3 NWLR (pt. 59) 182, AG Plateau State vs. AG Nassarawa State (2005) 4 SCNJ 120 @ 175, Obikoya vs. Wema Bank Ltd (1989) 1 NWLR (pt. 96) 157, Din vs. African Newspapers (1990) 3 NWLR (pt. 139) 392, Obeya vs. First bank of Nigeria (2010) LPELR-4666 (CA).
It flows as argued that the counter affidavit having pungently denied the fact that appellant was an agency of the Akwa Ibom State Government, going further to depose that appellant was a privately owned limited liability concern, engaged in banking activities, appellant ought to have gone further to file a further affidavit, exhibiting therein any proof capable of showing that its averment in the affidavit in support is the true position. It is this lacuna that faced the lower Court, giving rise to his conclusion that there were no enough materials upon which he could hold that appellant was a public officer within the meaning of the Public Officers Protection Act. I think he is absolutely correct. The nagging question as to whether appellant is a public officer having been settled against the appellant, all the cases cited, though good authority for the cases it decided are indeed in applicable to the instant case.

This issue is resolved against the appellant.

With regard to the 2nd issue; whether respondent’s suit is statute barred by virtue of the provisions of Section 1(1) of the Public Officers Protection Law, Cap. 104, Laws of Akwa Ibom State, 2000, same has to be resolved in the negative in view of the resolution of the first issue. I also resolve the issue against the appellant.

Hence the two issues having been resolved against the appellant, the appeal fails and it is hereby dismissed by me. The ruling of Hon. Justice Ekaette F. F. Obot of the High Court of Justice Uyo in suit No. HU/335/2014 delivered on the 27th day of July, 2016 is hereby affirmed N50,000.00 costs to the respondent.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother Hamma Akawu Barka, JCA. I agree with the reasoning and conclusion reached in the judgment.
I also dismiss the appeal.

MUHAMMED LAWAL SHUAIBU, J.C.A.: My learned brother Hamma A. Barka, JCA has obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that being unmeritorious, this appeal is accordingly dismissed.

Appearances:

No legal representation For Appellant(s)

Alex Umoh Esq. For Respondent(s)