DURU v. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2020)

DURU v. FEDERAL CAPITAL DEVELOPMENT AUTHORITY

(2020)LCN/14050CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, March 24, 2020

CA/A/226/2009

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Adamu Jauro Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Between

CHARLES U. DURU APPELANT(S)

And

FEDERAL CAPITAL DEVELOPMENT AUTHORITY RESPONDENT(S)

RATIO

COMMENCEMENT OF AN ACTION AGAINST A PUBLIC OFFICER

Section 2 (a) of the Public Officers (Protection) Act Cap. P. 41. LFN 2004 provides:
“Where any action, prosecution or other proceedings 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 act, law duty or authority, such action, prosecution or proceedings shall not lie or be instituted unless it is commenced within 3 months next after the act, neglect or default complained of or in the case of continuance of damage or injury, within three months next after the ceasing thereof.”
The provision above is clear and unambiguous and should be given their ordinary and natural meaning. The provision applies to an action brought against a public officer for any act done either in pursuance of execution or intended execution of any act or law or of any public duty or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority. In any of these situations, the action against the public officer must be commenced within 3 months of the date of the commission of the act complained of. An action commenced after three months, the cause of action accrued is un-maintainable. See
EKEOGU V. ALIRI (1991) 3 NWLR (PT 179) 258;
HASSAN V ALIYU (2010) 17 NWLR PT 1223 @ PG 547.
The primary objective of the Act is to protect Public Officers who have acted pursuant to the duties of their office from being harassed with stale claims. In the case of LAFIA LOCAL GOVERNMENT V. THE EXECUTIVE GOVERNMENT OF NASARAWA STATE & ORS (2012) LPELR-20602 (SC) the apex Court observed that the law is designed to protect public officials who are very busy people from being distracted or submerged in a sea of litigation a times at the instance of professional litigants. A situation in which public officers spend the limited precious time they have for their work in defending actions in Court is not in the public interest. To strike a balance, persons aggrieved by the action of such public officers must remain fully and consciously agitated and must commence their action in Court promptly within 3 months, otherwise their action will be declared stale and statute barred. The Act gives full protection or cover to all public officers persons engaged in the exercise of public duties who at all material times acted within the confine of their public authority and did not act outside their statutory or constitutional duty.
Indeed, there are judicially settled exceptions to the applicability of Section 2(a) of the Public Officers Protection Act, to Public Officers. The exceptions include:
(a) Lack of legal justification for the action of the Public Officer involved
(b) Abuse of office or misuse of power
(c) Action of the Public Officers tainted with malice, or
(d) Where there is a gross breach of a constitutional or fundamental right of a person by the Public Officers involved.
In OFFOBOCHE VS OGOJA L.G (2001) 16 NWLR (PT 739) 458-485 it was held as follows: “The law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification. The Act necessarily will not apply if it is established that the Defendant had abused his position for purpose of acting maliciously. In that case he has not been acting within the terms of statutory or other legal authority. He was not bonafide endeavouring to carry it out. In such a state of fact, he has abused his position, for the purposes of doing a wrong, and the protection of this Act of course never could apply to such a case.” See also the case of HASSAN VS ALIYU (2010) 17 NWLR (PT 1223) 547 @ 622 A-F. PER ABOKI, J.C.A.

THE BASIC FUNCTION OF EVERY COURT

It is a well settled law that the basic function of every Court called upon to interpret a piece of legislation is to seek out the intention of the legislator, as could be gathered from the four corners of the statute itself… PER ABOKI, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT OF THE TRIAL COURT

It is now firmly settled that where a trial Judge properly evaluates the case before him before dismissing a claim of a plaintiff, as in the instant case leading to this appeal, an appellate Court, will not interfere. See:
ARISONS TRADING & ENGINEERING CO LTD v. MILITARY GOV. OGUN STATE & ORS (2009) LPELR 554 (SC). PER ABOKI, J.C.A.

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): By way of an Originating Summons filed on the 9th of November 2005, the Appellant herein, as Plaintiff at the High Court of the Federal Capital Territory, sitting at Abuja, sought for the determination of the following question:

“Whether the defendant and or its Disciplinary Committee has powers and competence to try, determine and punish the plaintiff for the offences alleged against him as contained in the Defendant’s letter of alleged dismissal of the Plaintiff, same being allegation of criminal offences known and recognized by the criminal justice system, the criminal laws of the Federal Republic of Nigeria.”

The Appellant then claimed the following reliefs:
1. A Declaration that the Defendant has no power and competence to try. determine and punish the Plaintiff, for the allegations contained In the Defendant’s alleged dismissal letter dated the 30th day of June 2005.
2. A Declaration that the purported trial, determination and punishment (purported dismissal) of the Plaintiff by the Defendant for the said allegations is wrongful, unlawful, illegal and

therefore null and void and of no legal effect whatsoever.
3. An Order directing the Defendant to pay and continue to pay the Plaintiff the salaries and allowances from the date same were withheld by the Defendant on account of the purported dismissal till the Plaintiff’s appointment is determined by either party by due process of law.

The Respondent thereafter raised a Preliminary Objection on the ground that the suit of the Appellant was brought after three (3) months and therefore caught up by Section 2(a) of the Public Officers’ Protection Act. The Appellant in reply to the Preliminary Objection contended that where the issue before the Court is to challenge the competence and the authority of a public officer, Section 2(a) of the Public Officers’ Protection Act, will not apply.

In its Ruling delivered on the 30th of April 2008, the Trial Court, per M.E. ANENIK, J; sustained the Preliminary Objection and accordingly dismissed the Appellant’s suit.

The Appellant, being dissatisfied with this Ruling, appealed to this Court, vide a Notice of Appeal filed on the 13th of June 2008, upon a sole ground. (See pages

63—64 of the Record).

The parties, in line with the practice and procedure of this Court, filed and exchanged their briefs of argument. A brief of argument was filed on behalf of the Appellant on the 18th of March, 2011. CHIJIOKE KANU Esq., who settled the brief, distilled a sole issue for determination to wit:
“Whether the determination of the competence and authority of a public officer to perform a duty is not the basis for the application of and protection, under Section 2(a) of the Public Officers’ Protection Act (POPA)”

For the Respondent, the brief of argument filed on the 11th of April 2011, was settled by B.E.C. DURU (MRS), wherein was distilled two issues for determination. They are:
1. Whether this action is maintainable against the Respondent in view of the provisions of Section 2(a) of the Public Officers’ Protection Act CAP P41 LFN 2004.
2. Whether the learned trial Judge was right to have dismissed the suit (or being statute barred.

I have perused the record, the issues raised for determination and the arguments canvassed therein. I adopt the sole issue formulated by the Appellant in determining

this appeal, as it encapsulates the two issues distilled by the Respondent. For avoidance of doubt, the sole issue is:
“Whether the determination of the competence and authority of a public officer to perform a duty is not the basis for the application of and protection, under Section 2(a) of the Public Officers’ Protection Act (POPA)”

It is submitted for the Appellant that the answer to this question, is in the positive. According to learned counsel for the Appellant, the Public Officers’ Protection Act does not protect as a matter of course in all situations. He contended that the Public Officers’ Protection Act does not apply where the competence and authority of a public officer to do or not to do an act, is in issue. Reliance was placed on the case of MATTIAS ONU v. COMMISSIONER OF POLICE (1994) 1 NWLR (PT 232) 673.

It is the opinion of learned counsel for the Appellant that the Appellant’s suit is one for a declaration of the extent of the powers and competence of the Respondent to exercise the particular function being challenged, and that it is only when the Court comes to the conclusion that the act is one

over which the person against whom the action is commenced has competence and authority to act upon, that the said Section 2(a) of the Act is invoked in favour of such public officer.

This Court is urged to hold that the provisions of Section 2(a) of the Act does not apply to the suit of the Appellant because the act done by the Respondent is not one within its authority as a public officer.

In conclusion, this Court is urged to resolve this issue in favour of the Appellant, allow the appeal and set aside the Ruling if the Trial Court.

In response to the above, it is submitted for the Respondent that pursuant to Section 2(a) of the Public Officers’ Protection Act, any action commenced against any public officer must be brought within three months statutory period, otherwise such a cause of action cannot be maintained thereafter as it is statute barred.

Learned counsel for the Respondent stated that to determine the limitation period of an action, one has to look at the writ of summons and the statement of claim so as to verify when the alleged wrong giving rise to the cause of action was committed and compare same with the date the

action was instituted.
According to him, the Appellant was issued a letter of dismissal dated 30/04/2005 by which time the cause of action had arisen but he did not file the action against the Respondent, challenging the dismissal until 09/11/2005, seven months outside the statutory period stipulated by Law.

Relying on the case of OWIE v. IGHIWI (2005) 5 NWLR (PT 9170 184, amongst others, it is submitted for the Respondent that a cause of action matures or arises on a date when a breach or duty or act occurs which warrants the person injured by such, to Institute a legal action in assertion/protection of legal has been breached.

Learned counsel for the Respondent further stated that the provisions of Section 2(a) of POPA is clear and unambiguous and the phrase “any act done” in the statute should be given its literal interpretation, which means that the Respondent, having been sued for an act allegedly done or omitted to be done in the course of their official statutory duties are entitled to protection under the Public Officers’ Protection Act (POPA). Reliance was placed on the case of NPA PLC v. LOTUS PLASTICS (2005) 19 NWLR (PT

959) 158.
He maintained that the whole action of the Respondent was lawful, and in exercise of the executive function which was statutorily imposed on him. Furthermore, it is his view that for the Section 2(a) of POPA to avail any person, it must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties and also that the act done by the person in respect of which the action is commenced must be an act done In pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority. He called in aid the following cases:
ADIGUN v. AYINDE (1993) 8 NWLR (PT 313)
ALHAJI ALIYU IBRAHIM v. JUDICIAL SERVICE COMMITTEE, KADUNA STATE & ANOR (1998) 14 NWLR (PT 584) 1 @ 7.

It is finally submitted on behalf of the Respondent that the learned trial Judge was right to have dismissed the Appellants case, after its finding that the suit is statute barred. He relied on the case of SUNDAY ETIM & ORS v. I.G.P (2011) 11 NWLR (PT 724) 266.

This Court is urged to so hold and resolve the

issue in favour of the Respondent.

In conclusion, this Court is urged to dismiss the appeal and affirm the decision of the Trial Court.

law, duty or authority. In any of these situations, the action against the public officer must be commenced within 3 months of the date of the commission of the act complained of. An action commenced after three months, the cause of action accrued is un-maintainable. See
EKEOGU V. ALIRI (1991) 3 NWLR (PT 179) 258;
HASSAN V ALIYU (2010) 17 NWLR PT 1223 @ PG 547.
The primary objective of the Act is to protect Public Officers who have acted pursuant to the duties of their office from being harassed with stale claims. In the case of LAFIA LOCAL GOVERNMENT V. THE EXECUTIVE GOVERNMENT OF NASARAWA STATE & ORS (2012) LPELR-20602 (SC) the apex Court observed that the law is designed to protect public officials who are very busy people from being distracted or submerged in a sea of litigation a times at the instance of professional litigants. A situation in which public officers spend the limited precious time they have for their work in defending actions in Court is not in the public interest. To strike a balance, persons aggrieved by the action of such public officers must remain fully and consciously agitated and must commence their action in

Court promptly within 3 months, otherwise their action will be declared stale and statute barred. The Act gives full protection or cover to all public officers persons engaged in the exercise of public duties who at all material times acted within the confine of their public authority and did not act outside their statutory or constitutional duty.
Indeed, there are judicially settled exceptions to the applicability of Section 2(a) of the Public Officers Protection Act, to Public Officers. The exceptions include:
(a) Lack of legal justification for the action of the Public Officer involved
(b) Abuse of office or misuse of power
(c) Action of the Public Officers tainted with malice, or
(d) Where there is a gross breach of a constitutional or fundamental right of a person by the Public Officers involved.
In OFFOBOCHE VS OGOJA L.G (2001) 16 NWLR (PT 739) 458-485 it was held as follows:

“The law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification. The Act necessarily will not apply if it is established that the Defendant

had abused his position for purpose of acting maliciously. In that case he has not been acting within the terms of statutory or other legal authority. He was not bonafide endeavouring to carry it out. In such a state of fact, he has abused his position, for the purposes of doing a wrong, and the protection of this Act of course never could apply to such a case.”
See also the case of HASSAN VS ALIYU (2010) 17 NWLR (PT 1223) 547 @ 622 A-F.
The provision of Section 2(a) of the Public Officers Protection Act is subject to the provisions of the 1999 Constitution. A public officer who has contravened the provisions of the Constitution, particularly, as they relate to the fundamental rights enshrined therein, in the execution of his public duty cannot claim protection under the Act. The public officer can only seek for such protection when he is not guity of flagrant abuse of the Fundamental Human Rights in the execution of his public duties.
The above statement of the law and the various authorities cited do in fact represent the true position of the law as espoused by the Apex Court and this Court.
The contention of the Appellant herein is

whether or not the Respondent and or its Disciplinary Committee has powers and competence to try, determine and punish the plaintiff for the offences alleged against him as contained in the Defendant’s letter of alleged dismissal of the Plaintiff, same being allegation of criminal offences known and recognized by the criminal justice system, the criminal laws of the Federal Republic of Nigeria. It is his view that the learned trial Judge with respect, misconceived the contention of the Appellant before dismissing his case.
At pages 59 – 61 of the Record, the Trial Court had this to say:
“The Plaintiffs contention in their reply address is that the action of the defendant is not protected by Section 2(a) of the Public Officers’ Protection Act for the following reason: That this suit in issue is for a declaration as to the competence of the Public Officer, where Section 2(a) of the Public Officers Protection Act CAP 379 LFN 1990 does not apply. He proffered that what the suit challenges is the competence of the defendant/applicant to take the steps it took which led to his purported dismissal and not the regularity, diligence or lack

of it, fair hearing or bias in the procedure it adopted or the decision reached by the Applicant/Defendant… Section 2(a) of the Public Officers’ Protection Act to my mind, is clear and unambiguous. It is a well settled law that the basic function of every Court called upon to interpret a piece of legislation is to seek out the intention of the legislator, as could be gathered from the four corners of the statute itself… What is clear is that the Respondent is seeking to introduce the competence of the action of the Public Officer as a basis or sine qua non for the application of the Section 2(a) of the Public Officers’ Protection Act. This to my mind is a misconception of that section. There is a clear distinction between the contention of the Respondent and the ratio he referred to in ONUH v. COP supra, ratio 2. It reads thus: “A distinction can be drawn between cases where a public officer is obviously acting outside the colour of his office, or outside his statutory or constitutional duty, in which case, he loses the protection of the Act, without question and where he is acting within the colour of his office, in which case he can

only lose protection of the Act if he is sued within three months. The Respondent did not deny nor challenge the affidavit in support of this application. So the facts therein are deemed admitted. Also, looking at the originating summons and the affidavit thereto, there is no indication that the alleged act of the defendant/applicant falls outside the scope of Section 2(a) of the Public Officers’ Protection Act. The Act does not say that this Section applies where the act was carried out competently and with proper authority. Precisely the act refers to “…any act done in pursuance or execution or intended execution of any Act or Law 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… To my mind, the defendant herein ought to have sued within 3 months of the cause of action, which is the dismissal from office…”
From the above it appears the learned trial judge was under no misconception that the Appellant herein was challenging the competence of Respondent to try, determine and punish the Appellant for the offences alleged against him.
It is indeed

settled by a long line of authorities of the Apex Court and this Court that there are exceptions to the application of Section 2(a) of the Public Officers (Protection) Act. These exceptions cover instances where there is lack of justification for the action of the public officer, abuse of office or misuse of power; where the action of the public officer is tainted with malice or where there is a breach of constitutional or fundamental rights of a person by the public officer.
The instant case does not fall within the ambit of the listed exceptions. What is evident from the Record is that the cause of action should be deemed to have arisen when the letter of dismissal was issued to the Appellant in April 2005 as it is settled from the authorities that a cause of action arises on a date or from the time when a breach of any duty or an act occurs which warrants the person who is injured or the victim who is adversely affected by such breach to take Court action to assert or protect his legal right that has been breached or violated. SeeWOHEREM V. EMEREUWA & ORS (2004) LPELR-3500(SC), where the apex Court held inter alia that:

“Time therefore begins to run when there is in existence a person who can sue and another who can be sued and when all facts have happened which are material to be proved to entitle the Plaintiff to succeed. In other words, time will start to run when all the facts which constitute the Plaintiffs cause of action arose…”
Flowing from all I have said, I am in complete agreement with the decision of the learned trial Judge that the Act does not say that this Section applies where the act was carried out competently and with proper authority.

This sole issue is therefore resolved against the Appellant.

On this note, I hold that this appeal is unmeritorious. It is hereby dismissed. The Judgment of the High Court of the Federal Capital Territory, Abuja, delivered on the 30th of April, 2008, is hereby affirmed.

I make no order as to costs.

ADAMU JAURO, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, Abdu Aboki, JCA. I am in full and complete agreement with the reasoning and conclusion therein to the effect that the appeal is lacking in merit and ought to be dismissed.

I adopt the said judgment as mine and join my brother in dismissing the appeal. I abide by all consequential orders made, including that awarding no costs.

Appeal Dismissed.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE ABDU ABOKI, PJCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

Nnonye- Okpor For Appellant(s)

B.E.C. Duru For Respondent(s)