ATTORNEY GENERAL OF THE FEDERATION V. ALHAJI ALI ABACHA
(2010)LCN/3991(CA)
In The Court of Appeal of Nigeria
On Monday, the 19th day of July, 2010
CA/K/71/2005
RATIO
CAUSE OF ACTION: WHAT A CAUSE OF ACTION ENTAILS
A cause of action is the entire set of facts or circumstances giving rise to an enforceable claim. It also includes all those things necessary to give right of action and every fact which is material to be proved to entitle the Plaintiff to succeed. See Emiator V. Nigerian Army (1999) 12 NWLR (pt 631) 362, Sanda V. Kukawa Local Govt. (1991) 2 NWLR (pt 174) 379, Ibrahim V. Osun (1987) 4 NWLR (pt 67) 965. PER JOHN INYANG OKORO, J.C.A
INTERPRETATION OF STATUTE: MEANING OF THE WORDS “ANY PERSON” AS USED IN SECTION 2 OF THE PUBLIC OFFICERS PROTECTION ACT AND THE IMPORT OF SECTION 2(A) OF THE ACT
…the words “any person” used in section 2 of the Public Officers Protection Act is not limited to only natural persons or human beings. It admits and includes artificial persons such as corporation sole, company or any body of persons corporate or incorporate. This definitely includes the Attorney General of the Federation, the Appellant in this case. See Ibrahim V. JSC (supra). The Public Officers (Protection) Act is a statute of limitation and the import of section 2(a) thereof is that where any action, prosecution or proceedings is commenced against any person for any act done in pursuance or execution of any law or of any default in the execution of any such law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act, neglect or default complained of, or in the case of a continuing damage or injury, within three months next after the ceasing thereof. PER JOHN INYANG OKORO, J.C.A
STATUTE OF LIMITATION: WHETHER WHERE A STATUTE PROVIDES FOR THE INSTITUTION OF AN ACTION WITHIN A PRESCRIBED PERIOD, PROCEEDINGS CAN NOT BE ALLOWED TO BE INSTITUTED AFTER THE TIME ALLOWED OR STIPULATED BY THE STATUTE
…where a statute provides for the institution of an action within a prescribed period, proceedings shall not be allowed to be instituted after the time allowed or stipulated by the statute. Any action that is instituted after the period prescribed by the statute is completely barred as the right of the Plaintiff or the injured person to commence the action would have been extinguished by such law. See Obiefuna V. Okoye (1961) 1 SCNLR 144, Egbe V Adefarasin (supra), Fadare V. A G, Oyo State (1982) 4 SC. The purport of this is that the Public Officers (Protection) Act, removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and this leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute barred, this means that such action if instituted outside the three months statutory period allowed in the Act, cannot be maintained. PER JOHN INYANG OKORO, J.C.A
JURISDICTION: EFFECT OF COURT PROCEEDINGS CONDUCTED WHERE THERE IS ANY DEFECT IN THE JURISDICTION OF A COURT
The jurisdiction of a court is a fundamental issue for where there is any defect in the jurisdiction of a court, the entire proceedings, however well conducted are a complete nullity. PER JOHN INYANG OKORO, J.C.A
JURISDICTION: WHAT DETERMINES THE JURISDICTION OF A COURT
In other words, it is the plaintiffs claim that determines the jurisdiction of a court. See Abacha V. Fawehinmi (2000) FWLR (pt 3) 542. In the instant case, since the suit was commenced by way of originating summons, what is to be considered is the originating summons and the Affidavit in support thereof. See Ayanboyo V. Balogun (1992) 5 NWLR (pt 151) 392 at 407. PER JOHN INYANG OKORO, J.C.A
JURISDICTION: CRITERIA THAT MUST BE COMPLETE FOR A COURT TO HAVE THE COMPETENCE TO ADJUDICATE OVER A MATTER
In the case of Madukolu V. Nkemdilim (1962) 2 SCNCR 341, it was held that for a court to have the competence to adjudicate over a matter, the following criteria must be complete viz:- 1. The court must be properly constituted as regards number and qualifications of the members of the bench and no member is disqualified for one reason or another. 2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and, 3. The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are nullity however well conducted. The defect is extrinsic to adjudication. PER JOHN INYANG OKORO, J.C.A
PUBLIC OFFICERS’ PROTECTION ACT: WHETHER THE ACT WILL PROTECT A PUBLIC OFFICER WHO DOES AN ACT WHICH IS NOT PART OF HIS NORMAL DUTIES OR HAS NOTHING TO DO WITH HIS OFFICIAL FUNCTIONS
The Act is designed to protect a public officer who acts “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”. In other words, the Act gives the parameter within which a public officer can take protection under the Act. My understanding of this provision is that as long as the public officer acts in the usual function of his office, whether he does it correctly or wrongfully, he is protected by the section. It is not open to the court to pry into his conduct in carrying out his official assignment in order to determine whether the Act applies or not. Where however, a public officer, on a frolic of his own does an act which is not part of his normal duties or has nothing to do with his official functions or as was said in Ibrahim V. JSC (supra), acts outside the colour of his office; I do not think he can claim protection under the Act. A Public Officer who indulges in enticing other men’s wives cannot claim protection under the Act. This is so because enticing another man’s wife is not a public duty or act envisaged in the law. See Bamaiyi V. Bamaiyi (2005) 15 NWLR (pt 948) 334. PER JOHN INYANG OKORO, J.C.A
JUSTICES:
BABA ALKALI BAABA Justice of The Court of Appeal of Nigeria
MOHAMMED L. GARBA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
Between
ATTORNEY GENERAL OF THE FEDERATION – Appellant(s)
AND
ALHAJI ALI ABACHA – Respondent(s)
JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High court sitting in Kaduna and presided over by A. M Liman, J which judgment was delivered on the 24th day of September, 2004 wherein the learned trial judge granted some of the reliefs sought by the plaintiff (now Respondent) and refused the others. The Respondent herein commenced the action giving birth to this appeal via an originating summons dated 2nd April, 2004 and filed on 5th April, 2004 itemizing eight (8) questions for determination.
A brief facts of this case are that on or about the 27th day of September, 1999, the then Attorney General of the Federation and Minister of Justice, Kanu Agabi, SAN gave authority to one Mr. Erinco Monfrini, a partner in the firm of Hauchmann Monfrini & Bottage in Geneva, Switzerland to “assist and represent the Federal Republic of Nigeria for the purpose of International mutual assistance, proceedings to be initiated in Switzerland and elsewhere in the world in relation to the recovery of looted monies by the late Head of State, General Sani Abacha and his family members and other public Servants and other third parties, who have used their position or participated as accomplices to misappropriate public funds. To commence proceedings, elect domicile in any jurisdiction and to all that may be necessary for the institution of any proceedings until final judgment”.
Furthermore, in December, 1999, the President, Federal Republic of Nigeria, purporting to act in exercise of his powers under the Banking (freezing Accounts) Act of 31st December 1983, authorized the then Attorney General of the Federation and Minister of Justice, Kanu Agabi, SAN, to “request the Swiss Authorities to freeze all Bank accounts held in its jurisdiction by late General Sani Abacha, his children, his servants and agents and any other individuals or companies for the purpose of keeping the proceeds of funds misappropriated or stolen from the government and people of Nigeria between 1983 – 1998 and to seize and detain all banking and other documents relating to the said accounts, charge and prosecute all holders of such accounts, to recover and pay over to the Federal Government of Nigeria all monies falsely and fraudulently taken from the government and people of Nigeria”.
Consequent upon the delegation of authority to the Attorney General of the Federation to order freezing of Bank accounts of the late General Sani Abacha and his children and the donation of power of Attorney to Mr. Enrico Monfrini and the subsequent letters of request for mutual assistance originated by the Appellant to various countries, the accounts of the Respondent in Switzerland, United Kingdom, Jersey and Luxemburg were frozen.
In addition, in October 2003, the Appellant through Mr. Enrico Monfrini requested the Government of Switzerland to transfer all blocked funds standing to the credit of the Respondent in Banks in the Country to the Federal Republic of Nigeria. The Appellant in requesting for the freezing of the bank accounts of late General Sani Abacha and his children relied on the Banking (freezing of Accounts) Act, of 31st December, 1983.
As earlier stated, aggrieved by the action of the Appellant, the Respondent commenced an action against the Appellant via originating summons setting out eight questions for determination as follows:-
“(1).Whether the Defendant under the laws in force in the Federal Republic of Nigeria had power as at the 27th day of September 1999 to delegate to maitre Enrico Monfrini & Bottage Associate – Switzerland to freeze the account of any person particularly the plaintiff.
(2). Whether the Defendant under the laws in force in the Federal Republic of Nigeria as at 23rd December, 1999 had the power to seek to freeze the accounts of any person particularly the plaintiff without a sanction of a court of law?.
(3). Whether the Defendant can seek for mutual assistance from any person, Government or Authority (particularly the Government of United Kingdom, Switzerland, Liechtenstein, Luxemburg and Jersey) or any foreign countries of the world on the basis of the delegation of powers purportedly made to it by the President and commander in Chief of the Armed Forces of the Federal Republic of Nigeria on 23rd December, 1999.
(4). Whether the Defendant can claim right of access to the Plaintiffs foreign account and/or seek the assistance of any foreign country of authority to have access to the Plaintiff’s foreign accounts without the Plaintiff having been convicted of a criminal offence in Nigeria.
(5). Whether the Defendant purporting to act under the Banking (freezing of Account) Act of 31st December, 1983 (retained as cap 29 laws of the Federation 1990) can validly seek to freeze the accounts of the Plaintiff either in Nigeria or elsewhere in the world without granting the Plaintiff a hearing as contemplated under section 36 of the 1999 constitution of Nigeria in such determination of the plaintiff’s rights?
(6). Whether the defendant acting upon a non existent law can validly seek to freeze or seek the collaboration of foreign Government (particularly United Kingdom, Switzerland, Liechtenstein, Luxemburg and Jersey) to freeze the Accounts of the Plaintiff.
(7). Whether the defendant purporting to act on the powers of the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria under the Banking (freezing of Accounts) Act cap 29 laws of the Federation 1990 can validly request a transfer of funds from the Plaintiff accounts maintained in the United Kingdom, Switzerland, Jersey, Liechtenstein, and Luxembourg sometime in October, 2003, when the Plaintiff had not been convicted of any General offence under the laws in force in the Federal Republic of Nigeria?
(8). Whether the defendant can validly delegate the power purportedly delegated to him by the President of the Federal Republic of Nigeria to a third party i.e MAITRE ENRICO MONFRINI of Monfrini & Associates in Switzerland.
The Respondent thereafter sought the following reliefs:-
(1). A DECLARATION that the President of the Federal Republic of Nigeria’s delegation of Powers to freeze the Plaintiff’s accounts on 23rd December, 1999 to the Defendant under the Banking (freezing of Accounts) Act of 31st December, 1983 is ultra vires the powers of the President and Commander in Chief of the Armed Forces of the Federal Republic of Nigeria and consequently illegal, unconstitutional, null, void, the said statute having been repealed on 29th day of May, 1999.
(2). A DECLARATION that the Defendant’s letters of request for mutual assistance to the United Kingdom, Switzerland, Jersey and Luxembourg and the subsequent freezing of the Plaintiff’s accounts predicated on the purported delegation of authority by the President and Commander in Chief of the Federal Republic of Nigeria to the Defendant is unconstitutional, illegal, null and void.
(3). A DECLARATION that the Defendant has no powers under the Banking (freezing of Accounts) Act of cap 29 Laws of the Federation 1990 and the constitution of the Federal Republic of Nigeria 1999 to seek to freeze the accounts of the Plaintiff or that of any company or companies where he is on the Board of Directors maintained either in Nigeria or any where in the world particularly United Kingdom, Switzerland, Jersey, Liechtenstein and Luxembourg.
(4). AN ORDER OF INJUNCTION
a. Restraining the Defendant whether by himself, privies, servants, agents, or whomsoever from taking any further step or action or pursuing any request for assistance or any proceedings, administrative or otherwise undertaken in any of the countries or jurisdictions namely:- United Kingdom, Switzerland, Jersey, Liechtenstein and Luxembourg on the basis of the letters of requests of the Defendant based on the President’s purported Delegation of Authority dated 23rd December, 1999.
b. Restraining the Defendant from seeking, requesting or asking for transfer of funds from the Plaintiff’s account or companies (as contained in the Defendants’ letters of mutual request) maintained, in the countries or jurisdiction namely: United Kingdom, Switzerland, Jersey, Liechtenstein and Luxembourg on the basis of the letters of request for mutual assistance predicated on the President of the Federal Republic of Nigeria’s purported powers under the Banking (Freezing of Accounts) Act cap 29 Laws of the Federation 1990.
(5). A MANDATORY ORDER directing the immediate withdrawal of the Defendant letters of request for mutual assistance and/or transfer of funds from the Plaintiffs account or any of his associated companies written to the Governments or Authorities in United Kingdom, Switzerland, Jersey, Liechtenstein and Luxembourg between 1999 to date.
(6). AN ORDER restoring the parties to the position they were prior to the date the letters of request for mutual assistance were written by the Defendant to the Governments and Authorities of United Kingdom, Switzerland, Jersey, Liechtenstein and Luxembourg predicated on the Banking (Freezing of Acts) Act cap 29 Laws of the Federation 1990.
(7). AN ORDER granting leave to the Plaintiff to serve the Judgment/Ruling of this Honourable court on the Governments and Authorities of United Kingdom, Switzerland, Jersey, Luxembourg and Liechtenstein.
On the 16th of April, 2004, the Defendant (now Appellant) filed a preliminary objection contending that
(a) the action was statute barred by virtue of section 2(a) of the Public Offices Protection Act,
(b) the court lacked jurisdiction and
(c) that the action was frivolous, academic and an abuse of court process.
That preliminary objection was struck out on 27th May, 2004 and argument taken on the originating summons though the Appellant was not in court. The matter was then adjourned to 23rd July, 2004 for judgment. The Appellant re-filed his preliminary objection which was argued on the said 23rd July, 2004. The Appellant was however not given opportunity to reply to the argument on the originating summons before it was adjourned again for judgment. On 24th September, 2004 the lower court delivered its judgment and held that the Public Officer’s Protection Act was inapplicable because the Federal Government had no power to write the letters of request for mutual assistance, the Banking (Freezing of Accounts) Act of 1983 having been repealed in May, 1999.
Dissatisfied with the said judgment, the Appellant filed notice of appeal on 5th October, 2004 containing eleven grounds of appeal out of which he has distilled four issues for determination.
The issues are:-
1. Whether the action was not statute barred by virtue of section 2(a) of the Public Officers Protection Act.
2. Whether the court had jurisdiction to entertain the suit.
3. Whether the suit disclosed a reasonable cause of action.
4. Whether the Appellant was given a fair hearing.
The learned counsel for the Respondent also formulated four issues hereinunder stated:-
(1). Whether section 2(a) of the Public Officers Protection Act can avail the Appellant whose action was predicated on a non existing law.
(2). Whether the court had jurisdiction to entertain the suit over acts emanating from and carried out by the Appellant in Nigeria.
(3). Whether the suit disclosed a reasonable cause of action having regard to the questions for determination on the originating summons, the relief sought and the Affidavit in support of same.
(4). Whether the Appellant was denied fair hearing having regard to the facts and circumstances of this case.
As can be clearly seen, the four issues by each party are identical but couched differently. I shall therefore determine this appeal based on the four issues formulated by the Appellant as they are not only cogent, but straight to the point.
In the brief settled by Paul Erokoro Esq., learned counsel for the Appellant, it is submitted on the first issue that the action of the Respondent was statute barred and ought to have been dismissed by the lower court. Citing and relying on the case of Egbe V. Adefarasin (1985) 1 NWLR (pt 30) 549, learned counsel submitted further that where an action is commenced against a public officer outside the limitation period of three months provided in section 2(a) of the Public Officers Protection Act, the court will not inquire into the merits of the case. He cited the following cases to buttress this submission. Egbe V. Yusuf (1992) 6 NWLR (pt 245) I, Egbe V. Alhaji (1990) 1 NWLR (pt 128) 546. He urged this court to hold that the court below misconstrued the cases of Ibrahim V. JSC (1998) 4 NWLR (pt 584) 1, Offoboche V. Ogoja LGC (2001 16 NWLR (pt 739) 458 and Abubakar V. Governor of Gombe State (2002) 17 NWLR (pt 797) 533. He then urged this court to resolve this issue in favour of the Appellant as there is no dispute that this suit was commenced outside the three months period allowed by the Act.
In his reply, Abdullahi Haruna Esq. learned counsel for the Respondent submitted that the Public Officers Protection Act protects a public officer whose actions were carried out in pursuance of any Act or law or of any public duty or authority where an action in respect thereto was commenced after the expiration of three months from when the cause of action arose. That the said protection is qualified to the extent that the section avails a public officer whose action or act complained of is predicated or founded on law. Furthermore, that where the act or action of a public officer does not have the backing of any existing law, the Public Officers Protection Act cannot avail such an officer. He relies on the case of Nwankwere V. Adewumi (1966) All NLR 119.
Learned counsel further submitted that having acted or predicated his actions on the Banking (Freezing of Accounts) Act cap 29 Laws of the Federation 1990 which was repealed and therefore non-existent at the material time, the Appellant acted without legal basis or justification, and therefore cannot enjoy the protection under section 2(a) of the Act. He urged the court to follow the decision in Nwankwere’s case. Relying also on the case of Ibrahim V. JSC (supra) learned counsel submitted that the Act does not avail a public officer who acts outside the colour of his office and the Appellant in this appeal acted outside his statutory or constitutional duty. Therefore he could be sued outside the three months limitation period. Also relying on the case of Offoboche Vs Ogoja Local Government Council (supra), he submitted further that a public officer automatically looses his protection under the Act where he acts outside the colour of his office or duty. He urged this court to resolve this issue against the Appellant.
The facts of this case clearly show that the last of a series of events which gave rise to this suit at the court below happened in October, 2003 when it can be said the cause of action arose. The letters of request for International Assistance to the UK, Jersey, Liechtenstein, Luxembourg and Switzerland to freeze the accounts of the Respondent were written between 20th of December, 1999 and the year 2001. The Respondent did not institute this action until 5th April, 2004, clearly more than three months after the accrual of the right to sue or cause of action. This fact appears settled as none of the parties has made it an issue. A cause of action is the entire set of facts or circumstances giving rise to an enforceable claim. It also includes all those things necessary to give right of action and every fact which is material to be proved to entitle the Plaintiff to succeed. See Emiator V. Nigerian Army (1999) 12 NWLR (pt 631) 362, Sanda V. Kukawa Local Govt. (1991) 2 NWLR (pt 174) 379, Ibrahim V. Osun (1987) 4 NWLR (pt 67) 965.
Again, it is not in dispute whether the Appellant is a public officer or not. This appears settled. That notwithstanding, I need to stress the fact that the words “any person” used in section 2 of the Public Officers Protection Act is not limited to only natural persons or human beings. It admits and includes artificial persons such as corporation sole, company or any body of persons corporate or incorporate. This definitely includes the Attorney General of the Federation, the Appellant in this case. See Ibrahim V. JSC (supra).
The Public Officers (Protection) Act is a statute of limitation and the import of section 2(a) thereof is that where any action, prosecution or proceedings is commenced against any person for any act done in pursuance or execution of any law or of any default in the execution of any such law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act, neglect or default complained of, or in the case of a continuing damage or injury, within three months next after the ceasing thereof. Let me just reproduce the section as rendered in the Act itself. It states:-
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance of 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 provision shall have effect:-
(a). The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of continuance of damage or injury, within three months next after the ceasing thereof’.
Let me emphasize here that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be allowed to be instituted after the time allowed or stipulated by the statute. Any action that is instituted after the period prescribed by the statute is completely barred as the right of the Plaintiff or the injured person to commence the action would have been extinguished by such law. See Obiefuna V. Okoye (1961) 1 SCNLR 144, Egbe V Adefarasin (supra), Fadare V. A G, Oyo State (1982) 4 SC.
The purport of this is that the Public Officers (Protection) Act, removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and this leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute barred, this means that such action if instituted outside the three months statutory period allowed in the Act, cannot be maintained.
One issue which has to be bourne in mind is that this Act is intended to protect public officers who are defendants. The Act assumes some misconduct on the part of the public officer and the Act is designed to protect such officers wherever they may have been guilty of misconduct. See Egbe V. Yusuf (1992) 6 NWLR (pt 245) I. Egbe V. Alhaji (supra).
In the instant appeal, there is no doubt that this action was filed outside the three months allowed by law. If this was the only aspect of this issue, I would have ended the matter here. But there is another angle to it. The Respondent had argued that in order for the Act to apply, the conduct of the public officer has to be scrutinized relying mainly on the case of Nwankwere V. Adewunmi (supra). The Supreme court had however refused to buy this idea in the case of Egbe V. Adefarasi (supra) wherein it held that where a defendant has raised an unanswerable plea of protection under the Public officers Protection Law, there is absolutely no basis of prying into the conduct of such a public officer which gave rise to the action. Also in Egbe V. Yusuf (supra) the Apex court held at page 323 that –
“Now it is well established principle of interpretation that if the words used in legislation are plain and unambiguous they should be given their ordinary meaning – See Okumagba Vs Egbe (1965) 1 All NLR 62. It is therefore not the function of a judge to import into a statute words which do violence to the provision of the law. I find no element of good or bad faith contained in this enactment. The law provides quite clearly that once it is shown that the act complained of was done by the officer in the course of his official duties, action must be commenced within three months”.
Much weather was made on the difference between the “Egbe cases” to borrow the language of the learned trial judge and the cases of Ibrahim V. JSC (supra), Offoboche V. Ogoja LGC (supra) and Abubakar V. Governor Gombe State (supra). For me I really do not see any difference. The Act is designed to protect a public officer who acts “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”. In other words, the Act gives the parameter within which a public officer can take protection under the Act. My understanding of this provision is that as long as the public officer acts in the usual function of his office, whether he does it correctly or wrongfully, he is protected by the section. It is not open to the court to pry into his conduct in carrying out his official assignment in order to determine whether the Act applies or not. Where however, a public officer, on a frolic of his own does an act which is not part of his normal duties or has nothing to do with his official functions or as was said in Ibrahim V. JSC (supra), acts outside the colour of his office; I do not think he can claim protection under the Act. A Public Officer who indulges in enticing other men’s wives cannot claim protection under the Act. This is so because enticing another man’s wife is not a public duty or act envisaged in the law. See Bamaiyi V. Bamaiyi (2005) 15 NWLR (pt 948) 334.
Again, as was rightly pointed out by the learned counsel for the Appellant, a public officer, vying for the chieftaincy stool of his village is acting outside the colour of his office or employment and can be sued in relation to that chieftaincy matter after three months. This Act is not designed to cover such acts of a Public Officer. That is my understanding of the section.
The summary of all I have endeavoured to say so far is that section 2(a) of the public officers (Protection) Act protects a public officer from any proceedings on any act or omission he had done or left undone if the suit is not commenced within three months from the date the cause of action accrued. The section does not make room for any inquiry into the conduct of the public officer in the course of exercising his official functions before the Act can apply, No, it does not. As long as the public officer acted within the colour of his office, what the court is to decide is whether the action is maintainable and not whether the public officer is liable. Where however a public officer acts on a frolic of his own, he cannot be protected under the Act.
From the facts of this case, the Appellant acted within the colour of his office whether he acted rightly or wrongly. He is protected by the Act. Having filed this action outside the three months allowed by law, this suit is statute barred and is not maintainable. Whether there was a law backing up his action or not or whether he acted maliciously is not part of section 2(a) of the Public Officers (Protection) Act.
The learned trial judge was in grave error in holding that the Act does not avail the Appellant. The Appellant, as Attorney General acted in compliance with the powers delegated to him by the President and Commander in Chief of the Armed Forces of Nigeria. Those letters written by him for international mutual assistance were done in pursuance of his public duties. Accordingly, he has the protection of the law. In sum, this issue is hereby resolved in favour of the Appellant. The suit before the court below was statute barred and is not maintainable. I so held. The originating motion is accordingly struck out.
Having held that the Respondent’s suit was incompetent, being statute barred, that appears to have knocked the bottom off this appeal leaving nothing further to be said except to embark on some academic exercise. However, since this court is an intermediate court, I shall consider the other three issues albeit briefly.
The Appellant’s argument on the second issue is that the lower court lacked the jurisdiction to entertain the originating summons as constituted. The jurisdiction of the lower court is not challenged on the basis that the suit is statute barred, but that the subject matter of the suit is not within the competence of the Federal High Court. In paragraph 4.6 of the Appellants brief, he submits that “it is patent that from the processes filed by the Plaintiff before the trial court, that the bank accounts allegedly frozen were in foreign countries over which Nigerian courts have no jurisdiction”. He further submitted that the jurisdiction of Nigerian courts is limited to the international boundaries of Nigeria. Finally that there is nothing in section 251 of the 1999 constitution of the Federal Republic of Nigeria which suggests or empowers extra territoriality of trial courts’ jurisdiction. That any declarations by the trial court cannot be enforced in foreign jurisdiction and is therefore made in vain except in a few recognized exceptions citing the following cases:- Ibidokun V. Adaradode (2001) 12 NWLR (pt 727) 268, Attorney General of the Federation V. Attorney General Abia State & 35 Ors (2000) 6 NWLR (pt 763) 264, RTC V. FOB Investment Ltd (2001) 6 NWLR (pt 708) 246 among others. He urged this court to resolve this issue in favour of the Appellant.
It was however the contention of the learned counsel for the Respondent that on the face of the originating summons the eight questions submitted for determination border on acts carried out by the Appellant in Nigeria within the jurisdiction of the Federal High Court. Also, that the seven reliefs sought on the originating summons are interwoven around and/or emanated from the said acts of the Appellant which purports, from their nature to be administrative or executive actions. Also relying on section 251(1)(r) of the 1999 constitution, he submitted that the Federal High court had jurisdiction to entertain the suit. He urged this court to so hold. The jurisdiction of a court is a fundamental issue for where there is any defect in the jurisdiction of a court, the entire proceedings, however well conducted are a complete nullity.
Jurisdiction, simply put is the competence or power of a court to adjudicate over a matter brought before it. See Shell Petroleum Development Coy Nig. Ltd V. Isaiah (2001) 5 SC (pt 11) 1, Att. Gen of the Federation V. Sode (1990) 1 NWLR (pt 126) 500, Okolo V. Union Bank Nig. PLC (2004) 1 SC (pt 1) 1.
In the case of Madukolu V. Nkemdilim (1962) 2 SCNCR 341, it was held that for a court to have the competence to adjudicate over a matter, the following criteria must be complete viz:-
1. The court must be properly constituted as regards number and qualifications of the members of the bench and no member is disqualified for one reason or another.
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and,
3. The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are nullity however well conducted. The defect is extrinsic to adjudication.
Quite apart from that, section 251 of the 1999 constitution of the Federal Republic of Nigeria confers jurisdiction on the Federal High Court on certain matters. Section 251(1)(v) thereof states:
“Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies”.
Administrative acts have been defined in Black’s law Dictionary (6th Edition) at page 45 as” Those acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body or such as are devolved upon it by the organic law of its existence”.
Thus any administrative or executive action of the Federal Government or any of its agencies can be challenged at the Federal High Court. The 1999 constitution gives the Federal High court exclusive jurisdiction over such matters.
In view of the criteria set out in Madukolu V. Nkemdilim (supra), in order to determine the subject matter of the case before the court, recourse has to be made to the plaintiff’s claim before the court. In other words, it is the plaintiffs claim that determines the jurisdiction of a court. See Abacha V. Fawehinmi (2000) FWLR (pt 3) 542.
In the instant case, since the suit was commenced by way of originating summons, what is to be considered is the originating summons and the Affidavit in support thereof. See Ayanboyo V. Balogun (1992) 5 NWLR (pt 151) 392 at 407.
Accordingly, in order to determine whether the lower court had jurisdiction to hear the matter, the following issues are to be considered:-
1. The questions raised for determination in the Originating Summons
2. The reliefs sought from the court on the basis of the questions raised and
3. The affidavit stating the facts relied upon by the Plaintiff in support of the Originating Summons.
I had earlier set out all the 8 questions submitted by the Plaintiff (now Respondent) for the court to determine. I had also set out the reliefs sought. I do not intend to repeat the exercise here. On the face of the Originating Summons, the eight questions border on acts carried out by the Appellant, as defendant in Nigeria within the jurisdiction of the Federal High Court. As was rightly pointed out by the learned counsel for the Respondent, and I agree with him, the case of the Respondent before the trial court, basically, is that the acts of the Appellant in delegating his powers to Maitre Enrico Monfrini of Monfrini and Bottage & Associates – Switzerland to freeze the accounts of the Respondent was illegal, null, and void same being predicated on the powers conferred on the Appellant by the provision of the Banking (freezing of Accounts) Act, cap 29 Laws of the Federation 1990 which is a non existent law, same having been repealed when the Appellant carried out the acts. In other words, what the Respondent did in the suit before the trial court was to challenge the administrative or executive acts of the Appellant done in Nigeria which the Federal High Court has the jurisdiction to entertain by virtue of section 251(1)(r) of the 1999 constitution of the Federal Republic of Nigeria.
For me, the submission of the learned counsel for the Appellant that the suit before the court below was to challenge the action of the Swiss Authorities is not tenable as there is nothing to suggest that any of the eight questions sought by the Respondent was to challenge the authorities in Switzerland or any other foreign country. The suit did not challenge the proceedings in Switzerland but the executive or administrative acts of the Appellant in Nigeria. I agree with the court below that it had jurisdiction to entertain the matter only as regards the subject matter before it. But because the suit itself was statute barred, the jurisdiction of the court was not properly activated. That is as regards the issue of jurisdiction.
The next issue is whether the suit disclosed a reasonable cause of action. In the main the learned counsel for the Appellant submitted that the Respondent’s suit at the court below did not disclose a reasonable cause of action. Specifically; that if the Respondent had stated the following facts, a reasonable cause of action would have been disclosed. That is to say:-
1. The names of the banks where he had accounts
2. The names under which the accounts were held
3. The account numbers
4. The amount frozen in the accounts
5. Evidence of account ownership such as account statements, cheque books or other bank documents
6. Communication from the banks saying his accounts were frozen.
Having not provided the above particulars in his affidavit in support of the originating summons, the learned counsel for the Appellant urged this court to hold that the Respondent’s suit has not disclosed a reasonable cause of action. Secondly, that the name contained in Exhibit D attached to the affidavit in support of the originating summons is Mr. Ali Abacha and not Alhaji Ali Abacha used in this suit and as such there is no nexus between the two names citing the case of Kuforiji and Anor Vs V.Y.B. Nig. Ltd (1981) NSCC 250.
It was his further submission that as the Respondent made no averments whatsoever connecting him with any of the actions of the Appellant that he was challenging, the Respondent had no standing to sue relying on the following cases:- Senator Adesanya V. The President FRN (1981) NSCC 146 at 156, Arowolo V. Akapo (2003) 8 NWLR (pt 823) 451, Owodunni V. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (pt 675) 315 amongst others.
Furthermore, that the suit disclosed no infringement of the Respondents’ right and therefore did not disclose a cause of action relying on the case of Akintola V. Solenko (1986) 2 NKLR (pt 24) 598 at 623.
There are other submissions relating to whether or not the Attorney General exercised his power pursuant to the constitution or by virtue of the delegation of power by the President of Nigeria. These submissions, to my mind are quite outside this issue and are accordingly discountenanced by me. I shall only consider the submission relating to.
It was however the submission of the learned counsel for the Respondent that two elements must be present in a set of facts to give rise to a reasonable cause of action. That is to say (1) the wrongful acts of the defendant which gave rise to the Plaintiff’s complaint and (2) the consequent damage arising from the wrongful acts, relying on the case Arabami V. Advance Beverages Industries Ltd (2006) All FWLR (pt 295) 581. He contended that these two elements are present in the Respondent’s case at the trial court which gave rise to a reasonable case of action. He pointed out that the wrongful act of the Appellant was the letter of delegation of powers to freeze the account of the Respondent under a non existent or repealed law and the damage is the prevention of the Respondent from having access to his accounts. That the elements listed by the Appellant before the suit can be said to disclose a reasonable cause of action are listed by the Appellant before the suit can be said to disclose a reasonable cause of action are misconceived as a plaintiff is not required to state all those things before a cause of action arises.
As regards the name and address of the Respondent, he submitted that his name is Alhaji Ali Abacha of 10 Guava Road Kaduna. That the name Mr. Ali Abacha of 1/7 Gidado Rd Nasarawa Kano was contained in a document signed by the Appellant. That the information as regards the title of “Mr” ascribed to the Respondent and the address thereto did not derogate from the deposition in paragraph (5) of the affidavit wherein it was sworn on oath that the accounts that were frozen were those of the Respondent. Also that by this deposition, a nexus was created between the Respondent and “Mr Ali Abacha” mentioned in exhibit D. The said nexus, he opined, is that the Respondent Alhaji Ali Abacha, and Mr. Ali Abacha are one and the same person. He then submitted that the Respondent had the locus to sue. He urged this court to hold that the suit before the court below disclosed a reasonable cause of action.
In order to determine whether the Originating Summons filed by the Respondent in the court below discloses a reasonable cause of action, it is pertinent to define a cause of action. Although I had in the course of determining the 1st issue in this appeal touched on what constitutes a cause of action, it becomes necessary to repeat the exercise here. I understand a cause of action to mean the entire set of facts or circumstances giving rise to an enforceable claim. It also includes all those things necessary to give a right of action and every facts which is material to be proved to entitle the Plaintiff to succeed. See Emiator V. Nigerian Army (supra), Sanda V. Kukewa Local Govt. (supra) and Ibrahim V. Osun (supra).
The Apex court in Arabami V. Advance Beverages Ind. Ltd (supra) at p. 597 paras B – C defined cause of action as follows:-
“To our mind, it is in effect, the fact or combination of facts which gives rise to a right to sue and it consists of two elements: the wrongful act of the defendant which gives the Plaintiff his cause of complainant and the consequent damage”.
As was rightly submitted by the learned counsel for the Appellant, if a Plaintiff’s claim discloses a violation of his legal right, no matter how slight that violation may have been, it would have disclosed a reasonable cause of action and the court would be bound to hear it. Let me quickly point out here that in determining whether a reasonable cause of action exists or not, it is the claim of the Plaintiff as bourne out by his writ of summons and statement of claim that will be considered. In the instant suit which gives birth to this appeal, it is the Originating Summons together with the affidavit in support and all the accompanying documents therein attached. See Farinre V. Alaka – Coker (2003) FWLR (pt 181) 1755 at 1761 paras F-G.
Since it is the Originating Summons that will show whether the suit discloses a reasonable cause of action, I now turn my searchlight to the said process filed on the 5th of April, 2004. In it the Respondent set out eight questions for determination and all the questions are woven around the alleged wrongful acts committed by the Appellant to wit: the delegation of Powers to freeze the Respondent’s foreign accounts to Maitre Enrico Monfrini in pursuance of the Banking (Freezing of Accounts) Act cap 29 Laws of the Federation 1990 which was repealed and non-existent as at the time the delegation was made. Also based on the said repealed Law, the Appellant wrote letters for mutual assistance to the Governments and authorities of United Kingdom, Jersey, Liechtenstein, Luxembourg and Switzerland requesting the foreign countries or authorities to freeze the account of the Respondent. In other words, the Respondent as Plaintiff verily believed that the Appellant had acted ultra vires as the enabling law was no more potent. That in my opinion constituted the alleged wrongful act of the Appellants. Whether this will succeed in court, is another issue entirely. To ask whether the Respondent has suffered any damage as a result of the alleged freezing of his accounts is to state the obvious. I think the Respondent has shown in his affidavit in support of the originating summons particularly paragraphs (4)(d)-(l), (5), (6), (7) and (8) thereof that the action of the Appellant had affected him, his bank accounts having been frozen by reason of the said action of the appellant. I hold the view that it was the presence of this state of facts that sufficiently clothed the Respondent with the requisite interest or locus to sue the Appellant in respect of the said actions of the appellant. As it is the cases cited by the Appellant on the issue of locus standi do not apply here.
On the issue regarding the name of the Respondent, I think, that issue is a creation of the Appellant. He decided to write the name of the Respondent as Mr. Ali Abacha in Exhibit D. The Respondent filed this suit using his proper title as Alhaji Ali Abacha and he says, that the account so frozen in the name of Mr. Ali Abacha is his own. It is left for him at the trial to show that the account belongs to him. Even in Exhibit A, the names of the children of late Gen. Sani Abacha were not mentioned. The document states in part “to freeze Bank accounts held by late Gen. Sani Abacha, his children, his servants and agents and any other individual or companies”. For me, I do not se how the use of the prefix Mr or ‘Alhaji’ for Ali Abacha tainted or vitiated the cause of action of the Respondent.
On the whole, I am of a well considered opinion that the suit of the Respondent, the Originating Summons, disclosed sufficiently, a reasonable cause of action. This issue does not avail the Appellant at all.
The last issue to be considered in this appeal is whether the Appellant was given fair hearing at the court below. A brief fact leading to this issue will suffice. On 16th of April, 2004, the Appellant filed a Preliminary Objection to the Respondent’s Originating Summons. The matter was fixed for hearing on 27th May, 2004. On that date, the learned counsel for the Appellant was absent from court and the preliminary objection was struck out. On that date, the learned counsel for the Respondent argued his Originating Summons after which the court adjourned for judgment on 15th July, 2004. Before the date stated for judgment, the Appellant filed a motion seeking the following reliefs:
“1 An order for the arrest of judgment in this matter pending the determination of the points raised in this motion.
2. An order dismissing the suit in its entirety”.
On 23rd of July, 2004, the motion to arrest the judgment was granted without objection by the Respondent. Thereafter, the Appellants’ counsel argued his objection to the suit. The judgment of the trial court was predicated on the submission made on both the Preliminary Objection and the substantive suit.
Based on the facts above, the learned counsel for the Appellant submitted that hearing the defendant’s preliminary objection necessarily implied that the plaintiff’s earlier submission in the substantive suit had been set aside and that having decided to overrule the preliminary objection, the learned trial judge should have heard both sides on the substantive suit de novo. He cited the cases of Anyebe V. Adesiyun (1997) 5 NWLR (pt 505) 403, Baba V. NC ATC (1991) NWLR (pt 192) 388.
It was his further submission in the alternative that having overruled the preliminary objection, the trial court should have delivered its ruling and then allowed the defendant to be heard in response to the Plaintiffs earlier submission before adjourning for judgment. That to have adjourned for judgment immediately after the close of arguments on the preliminary objection effectively shut the defendant out of the substantive proceedings. Having been denied a hearing, he submitted that they were denied fair hearing urging the court to set aside the entire proceeding including the judgment on the substantive suit relying on the following cases: Ariori V. Elemo (1983) ISC 13 at 57, Yusuf V. Union Bank (1996) 6 NWLR (pt 450) 632, Olonesan V. Ogundepo (1996) 2 NWLR (pt 433) 628 among others.
Finally, he submitted that where an objection is based on issue of jurisdiction, the objection must be taken first before going into the substantive suit relying on the case of Attorney General of Anambra State Vs Attorney General of Federation (1993) 6 NWLR (pt 302) 692. He then urged this court to resolve this issue in favour of the Appellant.
In his reply the learned counsel for the Respondent submitted that issue of denial of fair hearing must be considered in the light of the facts and circumstances of each case citing the case of Ejeka Vs The State (2003) FWLR (pt 162) 1893 at 1904 paras D – E.
It was his further submission that Appellant’s counsel was in court on 20th April, 2004 when Respondents counsel applied that arguments in the substantive suit and preliminary objection be taken together and he did not object. Consequently, he had acquiesced with the procedure suggested by the Respondent’s counsel. It was his further contention that the hinging of Appellants plea of denial of fair hearing on the procedure adopted by the learned trial judge in the hearing of the Originating Summons and Appellants motion in the objection to the suit is not enough for a conclusion that Appellant was denied a fair hearing. He urged this court to hold that there was no breach of Appellant’s right to fair hearing at the trial.
It is a cardinal principle of our jurisprudence that parties having a matter in court must be accorded equal opportunities to ventilate their cases before the court can properly evaluate their case before judgment is given. This practice of hearing both sides is usually termed “fair hearing”. The right to fair hearing is so fundamental a principle of our adjudicating process that it cannot be compromised on any ground whatsoever except in cases where the rules of court allow matters to be heard ex-parte. See Nwokoro & Ors V. Anuma & Ors (1990) 3 NWLR (pt 136)22 at 35, Shitta – Bay V. Att Gen. Fed. & Anor (1998) 10 NWLR (pt 570) 392. In Bello V. NEPA (1978) 1 LRN 200 at 203 it was held that fair hearing is the epitome of the rules of natural justice.
Indeed, the right to fair hearing is so important that in this country and other parts of the world it is made a constitutional issue. It is one of the fundamental human rights provided in our constitution. Thus in section 36 of the 1999 constitution of the Federal Republic of Nigeria is provided as follows:-
“36 (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law in such manner as to secure its independence and impartiality”.
This is a fundamental and constitutional right and should not be waived. If the defendant was given an opportunity to defend himself but he chose to keep quiet or stay away without lawful excuse, then he has himself to blame. It is the practice and I agree it is the right thing to do that whenever a party has a right to be heard in a matter but was absent at the hearing, the court has an inherent jurisdiction to set aside whatever order or decision was made in the proceedings upon a satisfactory explanation of his absence. See Falbod V. Alpha Merchant Bank (1996) 10 NWLR (pt 478) 344.
In the instant appeal, the learned trial judge, after accepting the explanation of the Appellants counsel as to why he could not attend court on the date his preliminary objection was struck out, decided to arrest the judgment and allow the Appellant to argue his preliminary objection. That decision, to my mind was sound and in the interest of justice. That is as far as that stage in the proceedings is concerned.
As was rightly pointed out by the learned trial judge in his judgment at page 617 of the record when he said:-
“It should be noted that the defendant’s objection to the competence of the suit strikes directly at the heart of the court’s jurisdiction”, it is trite that whenever issue of jurisdiction is raised in any proceedings, such issue must first be determined before taking further steps in the matter. This is so because where a court lacks jurisdiction to entertain a matter, the proceedings no matter how well conducted is a nullity. See Att. Gen. Anambra V. Att. Gen. Fed. (supra).
Thus, when arguments were taken on the preliminary objection and a reply made by the Respondent, it is my view that the adjournment which the court below made was in respect of the preliminary objection only. This is so because when the matter was reopened by allowing the Appellant to argue his preliminary objection, the substantive matter ought to have been heard de novo after the ruling on the preliminary objection. When the lower court decided to deliver judgment on both the preliminary objection and the substantive matter without calling on the Appellant to make a reply in the alternative, the Appellant was sadly denied his right to a fair hearing. I have searched the entire record of appeal before me and I am unable to see the proceedings of 20th April, 2004 where the preliminary objection and the substantive matter were consolidated. Counsel did not refer the court to the page of the record either. It is trite that any breach of the right to fair hearing vitiates the proceedings, rendering them null and void. See Saleh V. Nonguno (2003) 1 NWLR (pt 801) 221 at 246.
Having come to the conclusion that the Appellant was denied fair hearing in the substantive suit, the only sensible thing to do is to set aside the decision of the trial court on the matter and I so order. See Kotoye V. Saraki (1994) 7 NWLR (pt 357) 414 at 456, Union Bank V. Nwaokolo (1995) 6 NWLR (pt 400) 127 at 149.
On the whole, as I had said earlier, this appeal could have succeeded based on issue No.1 alone having held that the suit at the court below was statute barred and struck out. However, I tried to profer answers to the other questions raised in the other three issues albeit brief in view of the intermediary nature of this court. Be that as it may, there is merit in this appeal and is hereby allowed. The judgment of the court below is hereby set aside and the suit being statute barred is hereby dismissed. Parties are to bear their respective costs.
BABA ALKALI BA’ABA, J.C.A: I have had the opportunity to read before now the judgment of my learned brother, Okoro, JCA with which I entirely agree.
For the same reasons contained in the said judgment which I adopt as mine, I too allow the appeal and set aside the judgment of the court below. I abide by the order on costs in the lead judgment.
MOHAMMED LAWAL GARBA, J.C.A: My learned brother Okoro, JCA had given me a draft copy of the lead judgment before today.
After a reading of the said draft, I found that the views expressed therein on the 4 issues canvassed by the Appellant in particular, which are substantially the same with those of the Respondent, are the same with mine.
In the result, I agree with the conclusions reached by my learned brother on each of them and join him in allowing the appeal primarily on the ground that the Respondent’s action was statute barred by virtue of Section 2(a) of the Public Officers Protection Act, Cap. 379, Laws of the Federation of Nigeria, 1990, which is applicable to the action.
Appearances
D.C. ENWELUM Esq. with G.T. OLUJITAN Esq. and S.A. HARUNA Esq For Appellant
AND
ABDULLAHI HARUNA Esq. with M.P. ONEKUTU Esq. For Respondent
