ELIJAH ADEBIYI (TRADING UNDER THE STYLE OF DELOCK ASSOCIATION) & ORS v. NATIONAL INSTITUTE OF PUBLIC INFORMATION & ORS (2013)

ELIJAH ADEBIYI (TRADING UNDER THE STYLE OF DELOCK ASSOCIATION) & ORS v. NATIONAL INSTITUTE OF PUBLIC INFORMATION & ORS

(2013)LCN/6403(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of July, 2013

CA/K/388/2007

JUSTICES:

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

ITA G. MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

ELIJAH ADEBIYI (TRADING UNDER THE STYLE OF DELOCK ASSOCIATION)
ABDUL GANIYU OYETUNJI (TRADING UNDER THE STYLE OF GRANNY OYETUNJI NIGERIA)
YEKINI JIMOH (TRADING UNDER THE STYLE OF YEKIJIMI ENTERPRISES)
JONNY GOOD NIGERIA ENTERPRISES
SAMJOOS ELECTRICAL NIGERIA ENTERPRISES
NUGATEC ENTERPRISES
MOBRAC ENTERPRISES LTD
D. LAWRENCE & CO. NIGERIA LTD – Appellant(s)

AND

NATIONAL INSTITUTE OF PUBLIC INFORMATION
MINISTER OF INFORMATION AND COMMUNICATION
ATTORNEY GENERAL OF THE FEDERATION – Respondent(s)

RATIO

THE POWER OF THE COURT OF APPEAL TO MAKE AN ORDER NECESSARY FOR DETERMINING CONTROVERSIES IN AN APPEAL

This Court is empowered by the provisions in section 15 of the Court of Appeal Act, 2004 to make any order necessary for determining the real question in controversy in an appeal and to, in doing so, generally exercise full jurisdiction over the whole proceedings as if the proceedings had been instituted in this Court as court of first instance and may rehear the case in whole or in part. It is, however, not a power that this Court can exercise as it desires. Certain conditions must exist for the power to come into play and these are:
i. that the High Court or trial court must have had the legal power to adjudicate in the matter before the appellate Court can entertain it;

ii. that the real issue raised by the claim of the appellant at the High Court or trial Court must be capable of being distilled from the grounds of appeal;

iii. that all necessary materials to determine the matter must be available to the court for consideration;

iv. that the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the material presented and, in this wise, the length of time between the disposal of the action at the trial court and the hearing of the appeal is a factor; and

v. that the injustice or hardship that will follow if the case is remitted to the court below must be clearly manifest.
See the cases ofInakoju Vs. Adeleke (2007) 4 NWLR (pt 1025) 423, Amaechi Vs. Independent National Electoral Commission (2008) 5 NWLR (pt 1080) 227, Ezigwe Vs. Nwawulu (2010) 4 NWLR (pt 1183) 159 and Onyero Vs. Nwadike (2011) 18 NWLR (pt 1279) 954. PER ABIRU, J.C.A.

THE PURPOSE OF A SUMMARY JUDGEMENT PROCEDURE

As stated earlier, this case was commenced under the Undefended List Procedure. This is a summary judgment procedure. The whole purpose of a summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, the summary judgment rules are specially made to help the court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied –United Bank for Africa Plc Vs. Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs. Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441. Speaking on the essence of the Undefended List procedure, this Court in its unreported judgment in Appeal No CA/K/131/2010 – Samabey International Communications Ltd Vs. Celtel Nigeria Ltd (Trading as Zain) delivered on the 26th of April, 2013 stated thus:
“It is pertinent to state that the provisions on undefended list in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course of justice. They are rules of court touching on the administration of justice and the procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has absolutely no defence to the plaintiff’s case. PER ABIRU, J.C.A.

THE UNDEFENDED LIST PROCEDURE

The undefended list procedure is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiffs claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled –Imoniyame Holdings Ltd Vs. Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 561, G. M. O. Nworah & Sons Co Ltd Vs. Afam Akputa Esq (2010) 9 NWLR (Pt 1200) 443, Babale Vs. Eze (2011) 11 NWLR (Pt 1257) 48, David Vs. Jolayemi (2011) 11 NWLR (Pt 1258) 320.”
There are two steps to the applicability of the Undefended List procedure and these are (i) there must be no reasonable doubt as to the efficacy of the claims of a plaintiff; and (ii) the defendant must not have a plausible defence to the claim of the plaintiff. The first step must be present before the second step can be inquired into and where either of them is absent, then the undefended list procedure cannot be used – Aubergine Collections Ltd Vs. Habib Nigeria Bank Ltd (2002) 4 NWLR (pt 757), David Vs. Jolayemi (2011) 11 NWLR (pt 1258) 320. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in the Kaduna Judicial Division in Suit No FHC/KD/CS/56/2007 delivered by Honorable Justice A. M. Liman on the 16th of May, 2007. The Appellants, as plaintiffs, commenced this action under the Undefended List Procedure, with the leave of the Court, against the Respondents, as defendants, claiming for:
i. An order for the immediate payment in the sum of N622, 563.00 (Six Hundred and Twenty Two Thousand Five Hundred and Sixty Three Naira) only to the Plaintiffs, same being the total amount owed for the supplies and execution of projects in favour of the first Defendant, which amount has been long outstanding.

ii. Interest at the rate of 21% per annum on the said sum of N622, 563.00 (Six Hundred and Twenty Two Thousand Five Hundred and Sixty Three Naira) only, commencing from January 2000 (for the first and eighth Plaintiffs) and January 2003 (for the second to the seventh Plaintiffs) up to the date of Judgment, and thereafter interest at 10% per annum until the entire judgment debt is liquidated.

iii. Cost of this action.

The case of the Appellants in the affidavit in support of their case under the undefended list was that each of them was an independent contractor and that each of them at different times made supplies and executed various projects for the first Defendant such as repairs, replacements, printing jobs, amongst others and that the combined total cost of the services was N622, 563.00. It was their case that all the supplies and various projects executed were done at the request of the first Defendant as evidenced by eight Local Purchase Orders and one letter of request issued by the first Defendant in their favour and copies of the Local Purchase Orders and the letter were attached as a bunch and marked as Exhibit COC 1. It was their case that after waiting for a long time for the first Defendant to settle the indebtedness and nothing was forthcoming, they caused their Solicitors to write a letter dated the 23rd of August, 2006 to the first Defendant demanding payment of the outstanding sum and a copy of the letter was attached as Exhibit COC 2. It was their case that the first Defendant responded by a letter dated the 25th of August, 2006 acknowledging the indebtedness and pleading for an extension of time as it had “requested for funds to settle all this debt” and that the extension of time would “facilitate the payment without any legal redress in court.” The letter was attached as Exhibit COC 3. It was their case that the first Defendant still refused, failed and/or neglected to settle the indebtedness thereafter and that the Defendants had no defence to the matter.
Upon being served with the processes of the Appellants, the Respondents entered a conditional appearance and filed a notice of preliminary objection wherein they contended that the suit was statute barred and that the lower Court lacked jurisdiction to entertain it and prayed that the suit be struck out for lack of jurisdiction. The Respondents also filed an affidavit to show cause which they captioned as “counter affidavit” and wherein they admitted that the just Defendant did issue the Local Purchase Orders and letter, Exhibit COC 1, in favour of the Appellants and that there was indeed an exchange of the letters, Exhibits COC 2 and COC 3, between the Appellants and the first Defendant. It was their case that the Appellants did not supply or execute the projects specified in the Local Purchase Orders and letter and that the no single kobo was owed to the Appellants and that they had a valid defence to the action.

The lower Court took arguments on the notice of preliminary objection and in a judgment delivered on the 16th of May, 2007 held that the admission of liability by the Respondents by the letter of 25th of August, 2006 had the effect of resetting when time would commence to run for the purpose of limitation and that by the provision of section 2 (2) of the Public Officers Protection Act, the Appellants ought to have commenced this suit within three months thereafter, but that the Appellants did not commence the action until 13th of March, 2007, seven months after and that as such the action was statute barred and it was doomed. The lower Court dismissed the case of the Appellants. The Appellants were dissatisfied with the decision and they caused to be filed a notice of appeal dated the 11th of August, 2007 and containing two grounds of appeal against it.

In arguing the appeal, Counsel to the Appellants filed a brief of arguments dated the 24th of September, 2007 on the 17th of December 2007 and it consisted of seven pages. The Respondents did not file any brief of arguments and by a motion dated the 1st of July, 2010, the Appellants sought for an order of this Court to hear the appeal solely on their brief of arguments. The motion was granted on the 26th of February, 2013. At the hearing of the appeal on the 25th of June, 2013, Counsel to the Appellants relied on and adopted the brief of arguments.

In the brief of arguments, Counsel to the Appellants formulated one issue for determination and this was – whether or not the learned trial Judge was correct to have held that the Public Officers Protection Act could be invoked to regulate the time of an issue which is purely contractual in nature between the parties to the Appeal.

Counsel stated that there was no gainsaying that the relationship between the Appellants and the Respondents was contractual and he submitted that the law was settled by the Supreme Court in FGN v. Zebra Energy Ltd (2002) 18 NWLR (Pt 798) 162 that the Public Officers Protection Act was inapplicable to matters of contract. Counsel stated that the applicable limitation law to the matter was the Statute of Limitation 1623 which is the same as section 2 of the Limitation Act, Cap 522 Laws of the Federation, 1990 and that by this law the limitation period for actions predicated on contract is six years. Counsel urged this Court to find that the lower Court misapplied the provisions of the Public Officers Protection Act to the facts of this case. Counsel submitted further that the facts deposed in the counter affidavit of the Respondents disclosed no defence on the merit and he implored this Court to exercise its powers under section 16 of the Court of Appeal Act to take over the proceedings in the matter as if the case was filed in this Court, as the court of first instance, and to examine the evidence and documents advanced by the parties and do justice in the matter. Counsel referred to the case of Okpalaeke V. NEPA (2003) 14 NWLR (Pt 840) 383. Counsel stated that the principles necessary for this Court to exercise its powers under section 16 of the Court of Appeal Act were present in this case and he referred to the case of Obi V. INEC (2007) 11 NWLR (pt 1046) 565.
Counsel urged this Court to allow the appeal and enter judgment for the Appellants in the sum claimed.

Section 2 (a) of the Public Officers Protection Act Cap 379, Laws of Federation of Nigeria 1990 states:
“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution of any act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority, the following provisions shall have effect –
(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damages or injury within three months next after ceasing thereof …”
This provision has been severally interpreted by the Courts with respect to its application to contracts entered into by public corporations. The position appears to be that the performance or breach of a contract which a public authority has the power but not the duty to make is not within the protection of the Act while the breach of a contract which the public authority has the duty or is by statute bound to make is within the protection of the Act. In other words, in determining the statutory provision on limitation of action against a public corporation in an action brought upon a contract, the nature of the contract must be considered. If the contract in issue is one which is a specific or special contract in which it might be expected that the parties would have freely agreed to the terms of the relationship between them, the provision of the limitation period will not apply, unless the public corporation and the party contracting have specifically made it part of the terms of the contract. Thus, it had been held that the provisions of the Act do not apply to contracts for sale of land, construction contracts, claims for work and labour done and where goods are sold and the price is to be paid upon a quantum meruit, and this is because in all these instances refusal or omission to perform would be a failure to comply with the terms of the contract and not with the provisions of the statute – Nigerian Ports Authority Vs. Construzioni SPA (1974) 1 All NLR (Pt 2) 463, Federal Government of Nigeria Vs. Zebra Energy Ltd, (2002) 18 NWLR (pt 798) 162, Osun State Government Vs. Danlami (Nig) Ltd (2007) 9 NWLR (Pt 1038) 606, Bakare Vs. Nigeria Railway Corporation (2007) 17 NWLR (Pt 1064) 606.
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Where, however, the contract deals with the day to day operations of the public corporation as provided for by the statute governing the public corporation, the provisions of the Act will apply. Thus, it has been held that contracts of employment of staff of public corporations are covered by the limitation provisions of the Act – Nigerian Broadcasting Corporation Vs. Bankole (1972) NSCC 220, Forestry Research Institute of Nigeria Vs. Gold (2007) 11 NWLR (Pt 1044) 1, Bakare Vs. Nigeria Railway Corporation (2007) 17 NWLR (Pt 1064) 606, Tajudeen Vs. Customs, Immxxigration & Prisons Service Board (2010) 4 NWLR (pt 1184) 325, Ibekwe Vs. Nigeria National Petroleum Corporation (2011) 6 NWLR (pt 1243) 245.

In the instance case, it is obvious from the Local Purchase Orders and the letter attached as Exhibit COC 1 to the affidavit of the Appellants in support of their case under the Undefended List Procedure that the claims of the Appellants against the Respondents are in respect of claims for work and labour done and for materials supplied. These claims are outside the protection of the Public Officers Protection Act. The lower Court was obviously in error when it applied the provisions of the Act to nullify and dismiss the claims of the Appellant.
Counsel to the Appellants has urged that should this Court find the lower Court in error on the application of the Public Officers Protection Act, it should not remit this case to the lower Court for a hearing on the merits but should exercise its powers under section 76 of the Court of Appeal Act to hear and determine the matter on its merits as the lower Court would have done. This case exhibits, once again, the folly of a lower Court in the judiciary hierarchy that fails to determine all the issues arising or submitted by parties in a matter but chooses to hinge its decision on only one of the issues. Where a higher Court finds that its decision on that single issue is wrong, as in the instance case, it creates a dilemma as to whether that higher Court should remit the case to the lower Court for determination of the other issues it neglected to resolve or to take over the functions of the lower Court and determine the outstanding issues on the merits. This creates a possibility of inadequate justice occurring, a possibility that should not have a place in the administration of justice system. This underscores the wisdom in the view that where a Court is not the final Court in the judicial hierarchy, it is wise that it resolves all the issues for determination raised or submitted by the parties rather than selecting some of the issues, so that should it turn out on a further challenge that its findings on the selected issues are wrong, the higher Court would only have to contend with determining the correctness of its findings on the other issues – Ovunwo Vs. Woko (2011) 17 NWLR (pt 1277) 522, Iwunze Vs. Federal Republic of Nigeria (2013) 1 NWLR (pt 1334) 119 and University of Calabar Vs. Akintunde (2013) 3 NWLR (Pt 1340) 1.

ii. that the real issue raised by the claim of the appellant at the High Court or trial Court must be capable of being distilled from the grounds of appeal;

iii. that all necessary materials to determine the matter must be available to the court for consideration;

v. that the injustice or hardship that will follow if the case is remitted to the court below must be clearly manifest.
See the cases of Inakoju Vs. Adeleke (2007) 4 NWLR (pt 1025) 423, Amaechi Vs. Independent National Electoral Commission (2008) 5 NWLR (pt 1080) 227, Ezigwe Vs. Nwawulu (2010) 4 NWLR (pt 1183) 159 and Onyero Vs. Nwadike (2011) 18 NWLR (pt 1279) 954.

The instant case was commenced in March 2007 in respect of debts which the Appellants say that the first Respondent had owed them since year 2000 in respect of some of them and year 2003 in respect of others. The lower Court had the jurisdiction to determine the matter and the issue in the claims of the Appellant is whether there were indeed monies due to them from the Respondents. The matter was commenced under the Undefended List Procedure and the materials necessary to determine it are the affidavits and exhibits filed by the parties and which form part of the records of appeal. The journey of this case from the decision of the lower Court till date has taken over six years. It is obvious that it will cause unnecessary hardship to the parties if this case is remitted to the lower Court for determination. All the factors necessary for this Court to exercise its powers under section 15 of the Court of Appeal Act are present in this suit and this Court shall determine the case on the merits.

As stated earlier, this case was commenced under the Undefended List Procedure. This is a summary judgment procedure. The whole purpose of a summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, the summary judgment rules are specially made to help the court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc Vs. Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs. Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441. Speaking on the essence of the Undefended List procedure, this Court in its unreported judgment in Appeal No CA/K/131/2010 – Samabey International Communications Ltd Vs. Celtel Nigeria Ltd (Trading as Zain) delivered on the 26th of April, 2013 stated thus:
“It is pertinent to state that the provisions on undefended list in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course of justice. They are rules of court touching on the administration of justice and the procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has absolutely no defence to the plaintiff’s case.

The undefended list procedure is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiffs claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Imoniyame Holdings Ltd Vs. Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 561, G. M. O. Nworah & Sons Co Ltd Vs. Afam Akputa Esq (2010) 9 NWLR (Pt 1200) 443, Babale Vs. Eze (2011) 11 NWLR (Pt 1257) 48, David Vs. Jolayemi (2011) 11 NWLR (Pt 1258) 320.”
There are two steps to the applicability of the Undefended List procedure and these are (i) there must be no reasonable doubt as to the efficacy of the claims of a plaintiff; and (ii) the defendant must not have a plausible defence to the claim of the plaintiff. The first step must be present before the second step can be inquired into and where either of them is absent, then the undefended list procedure cannot be used – Aubergine Collections Ltd Vs. Habib Nigeria Bank Ltd (2002) 4 NWLR (pt 757), David Vs. Jolayemi (2011) 11 NWLR (pt 1258) 320.

Looking at the case made out by the Appellants in the affidavit in support of their case under the undefended list, particularly the bunch of Local Purchase Orders and letter attached as Exhibit COC 1, the letter of demand for the indebtedness attached as Exhibit COC 2 and the letter of response of the first Respondent thereto attached as Exhibit COC 3, it cannot be contested that there is no reasonable doubt about the efficacy of the claims of the Appellants against the Respondents.

With regards to the defence of the Respondents, it is settled law that a defendant willing to defend an action under the undefended list must depose to facts in an affidavit disclosing a defence on the merits. Now, for art affidavit to constitute a defence on the merit, the defendant must set out the defence in the affidavit and not simply say that he has a defence. The affidavit must show reasonable grounds of defence; that there is some dispute between the parties requiring to be gone into – Osifo V. Okogbo Community Bank Ltd (2006) 15 NWLR (Pt 1002) 260. Under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiffs claim and affidavit, and state clearly and concisely what the defence is and what facts and documents are relied on to support it. The affidavit must of necessity disclose facts which will at least throw some doubt on the case of the plaintiff. A mere general denial of the plaintiffs claim and affidavit is devoid of any evidential value and as such would not have disclosed any defence which will at least throw some doubt on the plaintiffs claim – Ataguba & Co V. Gura (Nig) Ltd (2005) 8 NWLR (Pt 927) 429, Tahir V. Kapital Insurance Ltd (2006) 13 NWLR (Pt 997) 452, David V. Jolayemi (2011) 11 NWLR (pt 1258) 320.

The Respondents, in their counter affidavit, admitted issuing the Local Purchase Orders and letter, Exhibit COC 1, to the Appellants and they admitted receiving the letter of demand for payment of indebtedness and their response thereto, Exhibits COC 2 and COC 3. Their only defence was that the Appellants did not supply or execute the projects specified in the Local Purchase Orders and letter and that they therefore did owe the Appellants a single kobo. This defence is a general statement and it is negated by the contents of the letter of the first Respondent, Exhibit COC 3, which was an admission of the debt owed to the Appellants. The Respondents did not disclose a defence on the merit and the Appellants are entitled to judgment on their claim for the monies owed them by the Respondent.
The Appellants claimed for pre judgment and post judgment interest on the sum. The general rule at common law is that pre judgment interest is not payable on a debt or loan in the absence of express agreement or some course of dealing or custom to that effect. Thus, pre judgment interest will, be payable where there is an express agreement to that effect and such agreement may be inferred from a course of dealing between the parties or where an obligation to pay interest arises from the common practice or usage of a particular trade or business – Alfontrin Ltd Vs. Attorney General, Federation (1996) 9 NWLR (Pt 4750) 634, Diamond Bank Ltd Vs. Partnership Investment Co Ltd (2009) 18 NWLR (pt 1172) 67. Consequentially, a plaintiff, in order to succeed in a claim for pre judgment interest, must show how the entitlement to such interest arose, that is whether by law, by contract or agreement or he must plead facts showing that the claim is part of the loss or special damages which the defendant’s wrong imposed on him. It is not enough to merely say that the plaintiff is claiming interest. The basis of the claim of interest must be made manifest on the pleadings – Ekwunife Vs. Wayne (W.A.) Ltd (1989) 2 NWLR (pt 122) 422, Sani Abacha Foundation for Peace & Unity Vs. United Bank for Africa Plc (2010) 17 NWLR (pt 1221) 192. The Appellants did not show any basis for the claim for pre-judgment interest and the claim for pre-judgment interest must fail.
With regards to post judgment interest, a plaintiff need not show any basis for the claim or lead any evidence in respect of the interest claimed. The High Courts are empowered, some by their High Court Law and some by their Rules of Civil Procedure, to award post judgment interest and the award of post judgment interest is entirely discretionary. The Federal High Court from which this present matter emanated is given the discretion to award post judgment interest not exceeding 10% by the provisions of Order 23 Rule 5 of the Federal High Court Civil Procedure Rules 2009. The Appellants were kept out of monies due to them by the Respondent for many years, even after admitting liability to pay. The Appellants are entitled to post judgment interest.

In conclusion, this Court finds merits in the appeal and it is hereby allowed. The judgment of the Federal High Court sitting in the Kaduna Judicial Division in Suit No FHC/KD/CS/56/2007 delivered by Honorable Justice A. M. Liman on the 16th of May, 2007 is hereby set aside. Judgment is hereby entered in favour of the Appellants in the sum of N622, 563.00 (Six Hundred and Twenty Two Thousand Five Hundred and Sixty Three Naira) being the total amount owed by the Respondents for the supplies and execution of projects in favour of the first Respondent. The Appellants are awarded interest on the said sum at the rate of 10% per annum from today until the entire judgment debt is liquidated. The Appellants are awarded costs of this appeal assessed at N50,000.00. These shall be the orders of this Court.

DALHATU ADAMU, J.C.A.: I have gone through the draft of the leading judgment of my learned brother H.A.O. Abiru JCA. I agree with his reasoning and conclusion that the appeal has merit and should be allowed. I accordingly hereby allow it and abide by the consequential orders made in the leading judgment including an order as to costs.

ITA GEORGE MBABA, J.C.A.: I have had the privilege of reading, in draft, the lead judgment, just delivered by my learned brother, H.A.O. ABIRU, JCA and I agree with his reasoning and conclusions.
It has been held several times that even when applicable, the Public Officers’ Protection Act was not intended to serve as an instrument of fraud to protect fraudulent as a public officers.
By the proviso in section 2(a) of the Act, a public officer cannot run under the cover of the Act, when acting in bad faith, or outside the limits of the law.
See the case of HASSAN Vs. ALIYU (2010) 17 NWLR (Pt.1223) 547;
“Where a public officer acts outside the scope of his authority or without semblance of legal jurisdiction, he cannot claim the protection of the Act…” See also the case of Kapo vs. Okorie (2012) All FWLR (Pt 612) 1778.

In this case, the respondent cannot therefore hide under the cover of Public Officers’ Protection Act to escape his contractual responsibilities. To allow that would amount to using the law to entrench dishonesty, cheating and other vices.
With this and the fuller reasons in the lead judgment, I too allow the appeal and abide by the consequential orders in the lead judgment.

Appearances

Biola Oyebanji
Sani Kilawa For Appellant

AND

No appearance For Respondent