MINISTER OF DEFENCE v. YAGANAMI & ANOR (2022)

MINISTER OF DEFENCE v. YAGANAMI & ANOR

(2022)LCN/17095(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Thursday, June 02, 2022

CA/G/70/2016

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

HON. MINISTER OF DEFENCE APPELANT(S)

And

1. ALHAJI BUKAR YAGANAMI 2. ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

RATIO

THE POSITION OF LAW ON WHEN A GROUND OF APPEAL IS SAID TO BE ABANDONED

A ground of appeal is abandoned when no issue is formulated from the ground and the consequence of this is to strike out the abandoned notice of appeal if that is the only ground or strike out the ground and proceed with other grounds upon which issues are formulated. See State vs Omoyele (2017) 1 NWLR (pt 1547)341; FRN vs Mamu (2020) 15 NWLR (pt 1747) 303;D.P.P & Anor v. INEC & Ors (2008) LPELR-4044(CA). It is unthinkable that Counsel will be bold to make a submission that ground 7 is abandoned in the light of issue 1 formulated by the Appellant. I reproduce issue 1 formulated at page 6 Paragraph 3.01 in Appellant’s brief for ease of reference and to make my point clear. This is the issue as formulated:
“Whether the Respondent’s action is competent thus vesting the trial Court with jurisdiction to entertain same having regard to the materials placed before the Court.” PER TOBI, J.C.A

THE POSITION OF LAW ON LIMITATION OF ACTION AGAINST A PUBLIC OFFICER

The law is settled by the provision of Section 2 (a) of POPA that any grievance against a public officer must be commenced in Court within 3 months otherwise the action is statute barred. See Hassan vs Aliyu & Ors (2010) 7-12 S.C. 21; Oba Awolola, The Ededa of Eda-Oniyo, Ekiti vs The Governor of Ekiti State (2018) LPELR-46346(SC). I will at this stage reproduce the provision of Section 2 (a) POPA and some decisions of the Courts.
Section 2 of the Public Officers Protection Act, Laws of the Federation, 2010 provides as follows:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, law, duty or authority, the following provisions shall have effect:
(a) Limitation of time – the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof”.
By the above provision, it is clear that the provision only relates to public officers who are protected in the course of carrying out their legitimate public duty. To enjoy the protection, the person must be a public officer who is acting within his legitimate duties. It stands to reason that the law does not protect a person who is not a public officer or even a public officer who arbitrarily uses his power or act clearly outside his jurisdiction. Let us take a little excursion into the case law on the subject. In B.P.E. vs. Reinsurance Acquisition Group Ltd & Ors (2008) LPELR-8560 (CA) at pages 38-41, it was held:
“The persons whom the provisions of the Public Officer Protection Act would not cover are persons who are independent contractors for the provision of services for a public of (sic) services body or authority by virtue of contract. The words “Public Officer” or “any person for the purpose of the Public Officers Protection Act and as stipulated in Section 2 of the Public Officers Protection Law not only refer to natural persons or persons sued in their personal names. They extend to public bodies, initial persons, institutions or persons sued by their official names or titles. See F.G.N. v. Zebra Energy Ltd (2002) 18 NWLR (pt. (798) 162 at 195; Ibrahim v. J.S.C. Kaduna State (1998) 14 NWLR (pt. 584) 1; Permanent Secretary Ministry of Works etc. v. Balogun (1975) 5 SC 57. PER TOBI, J.C.A

THE POSITION OF LAW ON THE PERIOD UPON WHICH AN ACTION CAN BE COMMENCED AGAINST A PUBLIC OFFICER

The period within which an action can be commenced against a person covered by the said Section 2, POPA is 3 months from when the cause of action arose. Any action commenced against a Public Officer covered by this Section after 3 months will be statute barred. The implication of this is that such an action is dead on arrival and no amount of legal oxygen by the most brilliant and articulate lawyer can bring such an action back to life. No matter how serious or good the case can be, it is all over as the Courts is deprived of any power to adjudicate on a statute barred action. See Elukpo vs. Ibrahim & Anor. (2013) LPELR-20235 (CA). The implication is that people should not sleep over their rights as equity does not aid the indolent. See Att. Gen. of Rivers State vs. Ude (2006) LPELR-626 (SC).
I must however hasten to add that there are exceptions to this principle. These are matters dealing with recovery of land, contract and when the public officer acts beyond his powers and duties. In such situations, Section 2 (a) of POPA will not apply. See Offoboche vs Ogoja LG & Anor (2001) 16 NWLR (pt 739) 458 where it was held as follows:
“Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers (Protection) Law, of such protection. The burden is on the plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties or, that he had acted in error of judgment or, in honest excess of his responsibility, will not amount to bad faith or abuse of office. Abuse of office is the use of power to achieve ends other than those for which power was granted, for example, for personal gain, to show undue favour to another or to wreak vengeance on an opponent, to mention but a few. Malice, that, on the other hand, would defeat the defence of qualified privilege relates to the use of the occasion of publication of liable for some indirect purpose. The law has been put thus: “If the occasion is privileged it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive.” Per AYOOLA, J.S.C. PER TOBI, J.C.A

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling and judgment of the Federal High Court of Nigeria, Maidugri Judicial Division, delivered by Hon. Justice M. T. Salihu on 10/07/2014 in Suit No. FHC/MG/CS/2/2014- Alhaji Bukar Yaganami vs Hon. Minister of Defence & Anor. The 1st Respondent, Applicant in the lower Court alleged he was unlawfully arrested and kept in the custody of the Appellant without bail hence the suit for the enforcement of his fundamental right was instituted. The 1st Respondent filed the originating motion seeking for a declaration (among other reliefs sought) that his continued arrest and detention without just cause was illegal and unconstitutional and consequently sought for an order of his production before the trial Court. In the judgment of the lower Court found at pages 200-212 of the records, particularly on pages 209-210 His Lordship held:
“From the affidavit evidence before the Court, I am bound to find that the detention of the Applicant from the 19th January, 2013 for a period of over one year and the half is not supported by the Constitution. Indeed it is unconstitutional. The detention is in breach of the clear provisions of the Constitution which guarantee the fundamental rights of all people living in the country.
Section 35(4) provides: “Any person who is arrested or detained in accordance with Sub-section vi(c) of this Section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of (a) two months from the date of his arrest or detention in the case of a person who is in custody and not entitled to bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such condition as are reasonably necessary to ensure that he appears for trial at a later date”. Reasonable time is explained in sub-paragraph (a) and (b)… In the light of the foregoing, the Appellant shall be released conditionally to ensure he appears before the Court for trial in case the Respondent turns to have a case against him …”

The decision went in favour of the 1st Respondent who was the Applicant in the lower Court and against the Appellant who was 1st Respondent before the Court. The Appellant here filed a notice of preliminary objection to the action challenging the jurisdiction of the Court to entertain the matter specifically on the provision of Section 2(a) of the Public Officers Protection Act (POPA). The lower Court in a considered ruling found at pages 184-199 of the records dismissed the preliminary objection. The Appellant in this appeal lost the preliminary objection and the substantive suit. The Appellant dissatisfied and unhappy with both the ruling and judgment of the lower Court filed this appeal of 7 grounds in the amended Notice of Appeal filed on 24/11/21. The Appellant’s Counsel in this appeal is Festus Ibude, Esq. who settled the Appellant’s amended brief filed on 24/11/2021. The 1st Respondent’s Counsel who settled his brief on 15/09/2017 is Mohammed Adamu Esq. The 2nd Respondent despite being served with processes did not file any process. The Appellant’s Counsel in the Appellant’s brief of argument formulated 3 issues for determination viz:
1. Whether the Respondent’s action is competent thus vesting the trial Court with jurisdiction to entertain same having regard to the materials placed before the Court.
2. Whether the Respondent has discharged the burden of proof placed upon him as required by the law to entitle him to the reliefs sought.
3. Whether the trial Court has not misconceived the position of the law relating to burden of proof under the Nigerian law.

On issue 1, Counsel to the Appellant submitted that the 1st Respondent’s action is incompetent and the trial Court lacked jurisdiction to entertain same. Learned counsel stated the position of the law with regard to jurisdiction and its importance while vehemently submitting that the lower Court had no jurisdiction to entertain the matter since the Appellant is a public officer and therefore on the application of Section 2(a) of the Public Officers Protection Act the action is statute barred since it was not commenced within 3 months. He referred to a host of cases including GOVT OF IMO STATE VS. AMUZIE (2009) 13 NWLR (PT.1157) 34 AT 68 PARAS D-F; ADETAYO VS. ADEMOLA (2010) 3-5 SC (PT.1) 87 AT 115-116; (2010) 15 NWLR (PT.1215) 169 AT 189 PARAS E-F & PARAS B-G; MIL ADM. TARABA STATE V. JEN (2001)1 NWLR (PT 694) 416 AT 428-429 Paras H-B.

Counsel further submitted while relying on the following cases: FORESTRY RESEARCH INSTITUTE OF NIGERIA VS. GOLD [2007] 1 NWLR [PT.1044]; ONI VS. FAYEMI [2013] 12 NWLR [PT. 1369] 431 AT 461 PARAS E-F; OPARA VS. AMADI [2013]12 NWLR [PT 1369] 512 AT 529 PARAS G-H; BRITISH AIRWAYS PLC VS. AKINYOSOYE [1995] 1 NWLR [PT. 374] 722 AT 730 and stated that to determine if a matter is statute barred, recourse should be made to the Plaintiff’s initiating processes. In the instant case, Counsel submitted that looking at the initiating processes that the alleged infringement of the fundamental right of the Appellant occurred on 19th January, 2013 while the matter was instituted at the lower Court on 22nd January, 2014, about a year and three days after the alleged cause of action arose. This makes the matter statute barred ab initio and therefore the 1st Respondent’s right has been extinguished and the proper order to make is an order dismissing the claim. He relied on the case of IBRAHIM VS. J.S.C. [1998] 14 NWLR [ PT. 584] 1 AT 31-32 PARAS H-A; REPUBLIC OF AWAOGWUGWU VS. PRESIDENT FRN [2007] ALL NWLR [PT.358]; UNILORIN VS. ADENIRAN [2007] 6 NWLR [PT. 1031] 498 AT 552 PARAS E-H

Learned Counsel further submitted that the Public Officers Protection Act is a statute and its provisions supersedes the provisions of the Fundamental Right [Enforcement Procedure] Rules when there is a conflict. He relied on the cases of AUTO IMPORT EXPORT VS. ADEBAYO (2002) 18 NWLR (PT 799) 554 AT 580 PARAS A-B.

It is the further submission of counsel that the trial Court was wrong in concluding at the interlocutory stage that the Appellant has acted outside its statutory duty. Deciding a substantive matter at an interlocutory stage is forbidden in law, counsel submitted relying on ALCATEL KABELM METAL NIG PLC. VS. OJUGBELE [2003] NWLR [PT. 805] 429. The foundation of the case collapsed and there is nothing to build on and therefore the appeal should be allowed on this ground alone.

On issues 2 and 3 Counsel submitted that the 1st Respondent failed to discharge the burden of proof placed on him by law. Where the Plaintiff like in this instant case fails to prove his case upon the balance of probability, the Defendant has no duty to adduce any evidence in rebuttal Counsel submitted relying on the case: JOLAYEMI VS. ALAOYE [2004] 12 NWLR [PT.887] 322 AT 348 PARAS D-E.

The Appellant’s Counsel submitted that the 1st Respondent made general depositions as to the people and organization that arrested him but failed to give particulars of the officers who purportedly arrested him. He was unable to link the purported officers to the Appellant and thus gave speculative information which does not satisfy the burden of proof.

The relief sought by the 1st Respondent at the trial Court is declaratory and the Court does not grant such relief even on admission of the other party but rather on cogent and credible evidence which in this instance case is lacking. 1st Respondent in the case only gave contradictory evidence, counsel submitted. He relied on the following cases for the above submission: VINCENT BELLO VS. MAGNUS A. EWEKA [1981] 1. SC 63 AT 71; ABDULLAHI VS. MILAD [2004] 5 NWLR [PT.866] 232 AT 253; AGBANA VS. OWA [2004] 13 NWLR [PT.889] 1 AT 17 PARA C.

Counsel finally submitted that when a case is tried on affidavit evidence, the facts or depositions in the affidavit have to be proved like averments in the pleadings and that mere insinuation or guess work cannot be said to be cogent and credible evidence. He relied on the following cases: UBN PLC VS ASTRABUILDERS [WA] LTD [2010] 5 NWLR [PT.1186] 1 AT 29 PARAC; MARITIME INCORP VS. FARAST MERCANTILE CO. LTD[2001] 9 NWLR [PT. 719] 572; OLADIPO VS. MOBA LGA [2010] 5 NWLR [PT.1186] 117 AT 117 PARAS C-E.

On receipt of the Appellant’s amended brief, the Respondents’ Counsel formulated 4 issues for determination in its brief settled by Mohammed Adamu Esq. The issues formulated are not radically different from those formulated by the Appellant’s Counsel. For completeness however, I reproduce them as follows:
1. Whether the trial Court had jurisdiction to have entertained the 1st Respondent’s action with regards to material facts and pleadings before it.
2. Whether the 1st Respondent has discharged the burden of proof placed on him and the said burden has been shifted to the Appellant as required by law.
3. Whether the trial Court was right in holding that the 1st Respondents deposition does not contain legal argument except paragraph 18 with regards to Paragraph 2, 3, 4, 5, 6, 8, 11 of the 2nd Respondent’s counter affidavit and Paragraphs 5.2, 5.3, 7.1, 8.1, 8.2(a), 8.3 and 9.2 of the 2nd Respondent’s written address to the counter affidavit.
4. Whether the trial Court was right in holding that it is the Appellant’s affidavit that is not credible.

On issue 1, the 1st Respondent’s Counsel submitted that the trial Court had jurisdiction to entertain the suit been an action under the Fundamental Human Right in view of Order 1(2) of the Interpretation Act and Order III Rule 1 Limitation Act which are not eroded by Section 2(a) Public Officers Protection Act (POPA). It is Counsel’s submission that there was evidence that the 1st Respondent was in the custody of the Appellant until he was released on 14/4/17. This continuous act makes the provision of Section 2(a) of the POPA inapplicable he submitted.

Learned Counsel further submitted that from the letter to the GOC 7th Division Maiduguri and submissions of the 2nd Respondent’s counsel on pages 101-106 of the records, it can be gleaned that the Appellant has been in custody of the 1st Respondent till 14th April 2017 when he was released to his lawyer. It is the further submission of counsel that since the action of the Appellant is continuing without a break till the date of the institution of the action at the lower Court, the injury is continuing and it therefore falls under the exception to the provisions of Section 2(a) (POPA) 2004, Counsel relied on the case of: AREMO II VS. ADEKANYE (2004) 13 NWLR (PT 891) 572 AT 573-594; AG RIVERS STATE V. AG BAYELSA STATE (2013) 3 NWLR (PT 1340) P 148-150 PARAS F-A.

On issue 2, Learned Counsel submitted that the 1st Respondent has discharged the burden of proof placed on him and the onus is now on the Appellant who is in gross violation of the Court order to inform the Honourable Court why it disobeyed the order of the Court. Counsel relied on the case of OGBORU V. UDUAGHAN (2011) 2 NWLR (PT 1232) Pp. 590-591. Counsel submitted that unlike the general burden of proof, the burden of proof on pleadings rests on any party who substantially asserts an issue. He relied on the case of IMANA V. ROBINSON (1978) 6 SC 83.

Learned Counsel further submitted that the joining of grounds 2, 3, 4, and 6 to raise one issue for determination is alien to our procedural practice while objecting to ground 3 of the ground of appeal arguing that the said ground is a complaint on the ruling of the trial Court while ground 2, 4 and 6 are complaints on the judgment of the trial Court. These two cannot go together without seeking leave of Court Counsel submitted.

On issue 3, Learned Counsel submitted that it is clear that the 1st Respondent was in the custody of the Appellant until 14th April, 2017. Counsel finally submitted that it is trite learning that a person cannot approbate and reprobate at the same time. Consequently, a defendant who has admitted some averments of Plaintiff’s statement of claim would not be allowed to abandon such admission. He relied on the case of AG LAGOS STATE V. PURIFICATION TECHNIQUES LIMITED (2003) 16 NWLR (PT. 845) P.1 RATIO II.

Finally, on issue 4, Learned Counsel submitted that the trial Court was right in holding that it was the Appellant’s affidavit that is not credible. Since the Appellant is saying that it has gone through all its records of the people in its custody, it is now the duty of the Appellant to have shown such records to the honourable Court to make inference and draw conclusions. Relying on Section 131(2) Evidence Act 2011; and the case of G & T INVEST LTD V. WTT & BUSH LTD (2011) 8 NWLR (PT 1250) 500 SC, Counsel submitted that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. He finally urged the Court to dismiss the appeal and affirm the decision of the lower Court.

The Appellant filed a reply brief to address the salient issues raised in the 1st Respondent’s brief paragraph by paragraph. On the issue of abandonment of ground 7, it is the submission of Counsel that it is misconceived as issue 1 dealing with the issue of jurisdiction covers ground 7, just as it did ground 1. It is submitted by Counsel that in view of Exhibit A, there is no burden on the Appellant to show the list of people in its custody.

In response to paragraph 5.3, 5.6 and 5.7 of the 1st Respondent’s brief, Counsel submitted that the trial Court in its final judgment considered the same issues in its ruling, therefore there is no need for the Appellant to seek leave of Court before he can formulate grounds of appeal from both the ruling and judgment since the notice of appeal was filed within the time frame stipulated by law. Counsel relied on the following cases: IWEKA VS. SCOA NIG LTD (2007) 7 NWLR (PT 664) 325 AT 325 AT 48; ISHAKU VS. KANTIOK (2012) 7 NWLR (PT 1300) 457 AT 495; FBN PLC VS TSOKWA (2004) 5 NWLR (PT 866) 271 AT 297-298 PARAS H-G and OKOBIA VS. AJANYA (1998) 6 NWLR (PT 554) 348.

Counsel further submitted that a person who has appealed against an order of Court cannot be said to be in disobedience or contempt of that order as in the case leading to this appeal. He relied on the case of ODOGWU VS. ODOGWU [1992] SCNJ [PT.II] 357 AT 366-367; GLOBE STARS [NIG] LTD VS. MALLE HOLDINGS LTD [1999] 10 NWLR [PT. 622] 270 AT 286 PARAS F-G.

Counsel finally submitted that the 1st Respondent is duty bound to pay filing fee for the preliminary objection before same can be competent.

In this appeal, the Appellant is challenging the decision of the lower Court on the ruling on the preliminary objection and the substantive application for the violation of the fundamental right of the 1st Respondent. The main issue in this appeal is, whether the lower Court was right in dismissing the Appellant’s preliminary objection and in upholding the claim of the 1st Respondent against the Appellant for the violation of his fundamental right. The 1st Respondent Counsel had argued that the Appellant should have sought for leave before filing one appeal against the ruling and the judgment. I cannot seem to agree with him as I am not aware of any legal requirement that such leave is required. Both the ruling and the judgment arose from the same suit and therefore the appeal can be filed against both the ruling and the judgment and issues can be raised and formulated on them provided the grounds of appeals covers it. This is more so that the ruling deals with the preliminary objection while the substantive suit deals with the breach of fundamental right. The Appellant is in order in filing a single appeal against the ruling and the judgment without seeking for leave to do so provided the appeal was filed within time. In Onwe & Ors v. Nwaogbuinya & Ors (2001) LPELR-2709(SC), the apex Court held:
“One of the authorities relied upon by learned counsel for the respondents is Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179. In that case, the question that arose for the determination of this Court was whether the appellants could properly appeal against the interlocutory ruling of the trial Court with the grounds of appeal filed against the final judgment of the trial Court. In the lead judgment delivered by Uwais C.J.N. (as he then was), this question was considered and determined at page 195, thus:- “Now, no reference was made throughout the judgment of the trial Judge to the issue of applicability of Land Use Act or Bendel State Legal Notice No. 22 of 1978. Such references were made only in the ruling delivered on the 31st May, 1984. Can the appellants, therefore, raise such interlocutory issue in the appeal against the judgment? I respectfully think not. Although a party can include an appeal against a ruling in an interlocutory application when he comes to appeal against the final judgment, and this is to be encouraged in order to avoid unnecessary delay by appealing separately, there is a procedure to be followed in order to meet the unavoidable technicalities involved. By Section 25 Subsection (2)(a) of the Court of Appeal Act, 1976, the period prescribed for appealing against an interlocutory decision is 14 days, while the time prescribed for appealing against a final decision is three months. In order to marry the two appeals together one has to obtain leave to appeal out of time against the interlocutory ruling. Clearly, this has not been done in this case. Therefore, the appeal against the ruling of the learned trial Judge, which contains the point about the applicability of the Land Use Act and Legal Notice No. 22 of 1978 as to whether the land in dispute is situated in an urban area or rural area so as to determine the trial Judge’s jurisdiction is incompetent.” Per EJIWUNMI, J.S.C
To determine whether leave was required before filing this appeal, I will need to look at the date the ruling and the judgment were delivered, and compare with the date the original notice of appeal was filed. Since the Notice of appeal covers the ruling (interlocutory matter) and the judgment (final decision), the appeal must be filed within 14 days. If the appeal was not filed within 14 days, then leave should have been sought much more for extension of time. If such leave is not sought, the appeal will be incompetent and therefore struck out. The destiny of incompetent appeals is to be struck out. I will refer to yet another case on this very important aspect of this judgment. In Kakih v. PDP & Ors (2014) LPELR-23277(SC), the apex Court held:
“Although a party can include an appeal against a ruling in an interlocutory application when he comes to appeal against the final judgment, and this is to be encouraged in order to avoid unnecessary delay by appealing separately, there is a procedure to be followed in order to meet the unavoidable technicalities involved. In order to merge the two appeals together, the party has to obtain leave to appeal out of time against the interlocutory ruling: See OGIGIE v. OBIYAN (1997) 10 SCNJ 4. See also the clear provision of S. 25 of the Court of Appeal Act which provides that a party has 14 days within which to appeal against an interlocutory ruling of a trial Court to the Court of Appeal from the decision of the ruling. See N.L.C. v. PACIFIC MERCHANT BANK LTD (2012) ALL FWLR (Pt. 640) 1211 at pp. 1222-1223; CBN v. OKOJIE (2002) 8 NWLR (Pt. 768) 488.” Per Galadima, J.S.C

I will consider this issue later in this judgment but for now, I will deal with it briefly before I deal with the real issue in the front burner of this appeal. The issue is whether ground 7 of the notice of appeal was abandoned. I am really at loss where this argument is coming from. This is a complete misconception of ground 7 or completely a mischievous submission. To appropriate the point I am making, I will reproduce ground 7 which is couched in these words:
“The trial Court lacked the requisite jurisdiction to adjudicate on the matter as constituted”

A ground of appeal is abandoned when no issue is formulated from the ground and the consequence of this is to strike out the abandoned notice of appeal if that is the only ground or strike out the ground and proceed with other grounds upon which issues are formulated. See State vs Omoyele (2017) 1 NWLR (pt 1547)341; FRN vs Mamu (2020) 15 NWLR (pt 1747) 303;D.P.P & Anor v. INEC & Ors (2008) LPELR-4044(CA). It is unthinkable that Counsel will be bold to make a submission that ground 7 is abandoned in the light of issue 1 formulated by the Appellant. I reproduce issue 1 formulated at page 6 Paragraph 3.01 in Appellant’s brief for ease of reference and to make my point clear. This is the issue as formulated:
“Whether the Respondent’s action is competent thus vesting the trial Court with jurisdiction to entertain same having regard to the materials placed before the Court.”

If this is not an issue dealing with ground 7, I wonder what it is? At page 5 paragraph 3.2 of the 1st Respondent’s brief, the issue 1 is couched this way
“Whether the trial Court had jurisdiction to have entertained the 1st Respondent action with regard to material facts and pleadings before it?”

This issue as formulated by the 1st Respondent from the grounds of appeal deals with the jurisdiction of the lower Court. The issue 1, formulated by both the Appellant and Respondents’ Counsel deals with jurisdiction which ground 7 of the grounds of appeal is all about. I therefore cannot agree that ground 7 is abandoned. On taking a second look at the Appellant’s brief, I noticed that it was the Appellant’s Counsel that started the confusion. In the 3 issues formulated for determination, ground 7 was not tied to any issue. The Respondents’ Counsel just followed suit. While I do not commend Appellant’s Counsel for misleading the other Counsel who should know better, I refuse to be blind and misled as this is not a Court of law alone but also a Court of justice which should ensure substantial justice is done. The law is trite that mistake of Counsel on procedural issues should not be visited on litigant. See Stanbic IBTC Bank Plc v. Longterm Global Capital Ltd & Ors (2021) LPELR-56661 (SC); Ogundoyin & Ors v. Adeyemi (2001) LPELR-2335(SC).

Ground 7 in the circumstance is not abandoned and it is a life issue in this appeal for determination.

Having disposed of the above, I will now deal with the appeal by adopting the 3 issues formulated by the Appellant in this appeal. I reproduce the issues for determination as follows:
1. Whether the Respondent’s action is competent thus vesting the trial Court with jurisdiction to entertain same having regard to the materials placed before the Court.
2. Whether the Respondent has discharged the burden of proof placed upon him as required by the law to entitle him to the reliefs sought
3. Whether the trial Court has not misconceived the position of law relating to burden of proof under the Nigerian law

I will start with issue 1 being the first issues formulated and much more than that, being an issue on jurisdiction it has to be handled first because the determination of that issue will determine whether we will consider the merit of the appeal. On issue 1, the Appellant is saying that the lower Court lacked jurisdiction to entertain the matter because the action was not commenced within 3 months as required by Section 2(a) of POPA, the Appellant been a public officer. The law is settled by the provision of Section 2 (a) of POPA that any grievance against a public officer must be commenced in Court within 3 months otherwise the action is statute barred. See Hassan vs Aliyu & Ors (2010) 7-12 S.C. 21; Oba Awolola, The Ededa of Eda-Oniyo, Ekiti vs The Governor of Ekiti State (2018) LPELR-46346(SC). I will at this stage reproduce the provision of Section 2 (a) POPA and some decisions of the Courts.
Section 2 of the Public Officers Protection Act, Laws of the Federation, 2010 provides as follows:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, law, duty or authority, the following provisions shall have effect:
(a) Limitation of time – the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof”.
By the above provision, it is clear that the provision only relates to public officers who are protected in the course of carrying out their legitimate public duty. To enjoy the protection, the person must be a public officer who is acting within his legitimate duties. It stands to reason that the law does not protect a person who is not a public officer or even a public officer who arbitrarily uses his power or act clearly outside his jurisdiction. Let us take a little excursion into the case law on the subject. In B.P.E. vs. Reinsurance Acquisition Group Ltd & Ors (2008) LPELR-8560 (CA) at pages 38-41, it was held:
“The persons whom the provisions of the Public Officer Protection Act would not cover are persons who are independent contractors for the provision of services for a public of (sic) services body or authority by virtue of contract. The words “Public Officer” or “any person for the purpose of the Public Officers Protection Act and as stipulated in Section 2 of the Public Officers Protection Law not only refer to natural persons or persons sued in their personal names. They extend to public bodies, initial persons, institutions or persons sued by their official names or titles. See F.G.N. v. Zebra Energy Ltd (2002) 18 NWLR (pt. (798) 162 at 195; Ibrahim v. J.S.C. Kaduna State (1998) 14 NWLR (pt. 584) 1; Permanent Secretary Ministry of Works etc. v. Balogun (1975) 5 SC 57.
The intention of the Legislature in the Public Officers (Protection) Law is to provide protection for public officer, corporate or incorporated bodies in the discharge of their public assignment. Offoboche vs. Ogoja Local Government (2001) 16 NWLR (pt.739) 458. The defence of the Public Officers Protection Law can avail public officers who act in execution of their duty without malice. Thus motive on the part of the public officer is relevant but the mala fide of the public officer must be made an issue. Okeke vs. Baba (2000) 3 NWLR (Pt. 798) 644 at 652; Eboigbe vs. NNPC (1994)5 NWLR (Pt. 347) 649; Sanda vs. Kukawa Local Government (1991)2 NWLR (Pt. 174) 379; Olaosebikan vs. Williams(1996) 5 NWLR(Pt. 449) 437. In Offoboche vs. Ogoja Local Government &. Anor (2001) 16 NWLR (Pt. 739) 458, the Supreme Court held:-
The Public Officers (protection) 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. Thus the law will not apply if it is established that the defendant had abused his position for the purpose of acting maliciously. In that case, he is not acting within the terms of the statutory or other legal authority. In such state of facts, he has abused his position for the purpose of doing wrong, and the protection of the law would never apply to such a case. Nwankwere vs. Adewunmi (1966) 1 All NLR 129; Lagos City Council vs. Ogunbiyi (1969) 1 All NLR 297.
The object of the public officers protection law is to afford protection to public officers in respect of anything done in the execution of or carrying out their duty. The protection comes into play after the expiration of 3 months from the date of the commission of the act or acts which give rise to the cause of action. Per Uwais JSC (as he then was) in Yabugbe vs. COP (1992) 4 NWLR (pt. 234) 152 at 176; Egbe vs. Adefarasin (1985) 1 NWLR (pt.3) 549, Egbe vs. Alhaji (1990) 1 NWLR (pt. 128) 546; Ekeogu vs. Aliri (1991) 3 NWLR (Pt. 179) 258 .”
The period within which an action can be commenced against a person covered by the said Section 2, POPA is 3 months from when the cause of action arose. Any action commenced against a Public Officer covered by this Section after 3 months will be statute barred. The implication of this is that such an action is dead on arrival and no amount of legal oxygen by the most brilliant and articulate lawyer can bring such an action back to life. No matter how serious or good the case can be, it is all over as the Courts is deprived of any power to adjudicate on a statute barred action. See Elukpo vs. Ibrahim & Anor. (2013) LPELR-20235 (CA). The implication is that people should not sleep over their rights as equity does not aid the indolent. See Att. Gen. of Rivers State vs. Ude (2006) LPELR-626 (SC).
I must however hasten to add that there are exceptions to this principle. These are matters dealing with recovery of land, contract and when the public officer acts beyond his powers and duties. In such situations, Section 2 (a) of POPA will not apply. See Offoboche vs Ogoja LG & Anor (2001) 16 NWLR (pt 739) 458 where it was held as follows:
“Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers (Protection) Law, of such protection. The burden is on the plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties or, that he had acted in error of judgment or, in honest excess of his responsibility, will not amount to bad faith or abuse of office. Abuse of office is the use of power to achieve ends other than those for which power was granted, for example, for personal gain, to show undue favour to another or to wreak vengeance on an opponent, to mention but a few. Malice, that, on the other hand, would defeat the defence of qualified privilege relates to the use of the occasion of publication of liable for some indirect purpose. The law has been put thus: “If the occasion is privileged it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive.” Per AYOOLA, J.S.C

Two more cases will not be out of place. This is the case of Rahamaniya United (Nig) Ltd v. Minister of FCT & Ors (2021) LPELR-55633 (SC), the apex Court held:
“Section 2(a) of the Public Officers Protection Act is intended to protect public officers from undue litigation in the course of the discharge of their official assignments. See OFFOBOCHE VS OGOJA LOCAL GOVERNMENT (2000) 16 NWLR (PT.739) 458. It must however, be reiterated that the provisions of the Public Officers Protection Act does not provide an impenetrable shield for public officers. The protection is not absolute, hence it does not apply to actions for recovery of land, breach of contract or claims for work and labour done. See ROE LTD VS UNN (2018) LPELR-43855 (SC), F.G.N. VS ZEBRA ENERGY LTD (2002) 18 NWLR (PT.798) 162 at 196; WEMA SECURITIES AND FINANCE PLC. VS NAIC (2015) LPELR-24833 (SC) at 64-65, BAKARE VS NIGERIAN RAILWAY CORPORATION (2007) 17 NWLR (PT.1064) 606.
The defence of the Public Officers Protection Act can only avail Public Officers whose act in the course of the execution of their duty is without malice.” Per OSEJI, J.S.C.
Finally on this point is the case of Cil Risk & Asset Management Limited vs. Ekiti State Government & Ors (2020) LPELR-49565 (SC), where the apex Court per Peter- Odili, JSC held:
“Indeed, Section 2 (a) of the Public Officers Protection Act is inapplicable to the case in hand, because the matter under discourse and review pertains to land which is an exception to the applicability of that provision. In this regard, I place reliance on the decision of this noble Court in Mulima v Usman (2014) 16 NWLR (Pt.1432) 160 at 212, paras. C-E, wherein it was held that:- ” Section 2 (a) of the Public Officers Protection Act does not apply in cases of recovery of land.”

Similarly, in A. G. Rivers State v A. G., Bayelsa State (2013) 3 NWLR (Pt.1340) 123 at 150, this Honourable Court held thus: “The protection afforded public officers under the Public Officers (Protection) Act does not apply in cases of recovery of land…”
See Sani vs President, FRN (2020) 15 NWLR (pt 1746) 151; Radiographers Reg. Board, Nig vs M. & H.W.U.N. (2021) 8 NWLR (pt 1777) 149; INEC vs Enasito (2018) 2 NWLR (pt 1602) 63.

The 1st Respondent’s Counsel trying to take advantage of the exception submitted that matters involving fundamental right do not fall within the purview of Section 2(a) of POPA. The Appellant’s counsel is of the firm view that cases involving breach of fundamental right is not one of the exceptions to Section 2 (a) POPA. Counsel’s argument is based on the principle that statutes are superior to Rules. This argument may be a true representation of the law but the Fundamental Right Procedure Rule is not a Rule of Court but also a statute as it is an offshoot of the Constitution. I must hasten to add however a complaint against the violation of the fundamental right of a person is a complaint against a violation of the Constitution of the Federal Republic of Nigeria. The question therefore is whether a public officer who is alleged to have violated the Constitution right dealing with his fundamental right must be brought before Court within a period of 3 months failing which the action is statute barred? what the Appellant’s or Respondents’ counsel feels about this does not matter, what matters is the position of the law. The position of the law is that the provision of Section 2 (a) of POPA is subject to the provision of 1999 Constitution (as amended). In fact, a public officer who violates the fundamental right of a person cannot claim protection under Section 2 (a) of POPA. See Tajudeen vs FIRS (2020) 12 NWLR (pt 1739) 459; Muhammed vs A.B.U. (2014) 7 NWLR (pt 1407. When a public officer violates the constitutional right of a person, Section 2(a) of POPA will not avail him. The bottom line of the above is that, if there is enough evidence that the Appellant violated the fundamental right of the 1st Respondent, the Appellant cannot be exonerated or take cover under Section 2 (a) of POPA. The question which this judgment will answer is whether there is evidence that the Appellant unlawfully arrested and detained the 1st Respondent. If the answer to the question is in the positive, the appeal will fail but if the answer is to the negative, the appeal will succeed.
The action commenced in the lower Court is an action that borders on fundamental right, cannot be covered by Section 2(a) POPA and therefore it is an action that is not statute barred. The lower Court in my opinion was right in the circumstance of the case to assume jurisdiction over the matter being a matter bordering on fundamental right which is not covered by Section 2 (a) of POPA. On the point whether leave was sought and granted and indeed whether the action was competent, this Court asked counsel to address Court on 31/5/2022. This is a factual situation which both counsels agreed to as reflected in the record of appeal. From the record of appeal at page 249 of the records, there is an order from the Jos Division of this Court granting the prayers as prayed following a motion filed on 20/1/2016 wherein the Appellant sought for extension of time within which to seek leave to appeal against the ruling and the judgment of the lower Court delivered on 10/7/14, granting leave to appeal against the ruling and judgment and extension of time to file the notice of appeal. This application is found at pages 113-118 of the record. I reproduce the order of the Court at page 249 of the record as follows:
“IT IS HEREBY ORDERED:
1. That the application filed on the 20/01/2016 be and is hereby granted as prayed.
2. That leave be and is hereby granted the Appellant/Applicant to appeal against the ruling and judgment of his lordship Hon. Justice M.T, Salihu both dated 10th day of July, 2014.
3. That time be and is hereby extended by 14 days within which the Appellant/Applicant may file its ruling and judgment of His Lordship Hon. Justice M.T. Salihn both dated the 10th day of July, 2014.”

This order was made on 16/2/2016. Complying with the order, the original Notice of Appeal which was amended was filed on 17/2/2016.

The Notice of Appeal is therefore competent. I resolve the first issue in favour of the 1st Respondent against the Appellant. The lower Court was therefore right in assuming jurisdiction and proceeded to the substantive matter.

Having held that the lower Court was right in assuming jurisdiction, it remains to now deal with the merit of the substantive matter, that is whether the 1st Respondent is entitled to his claim at the lower Court. This is where issues 2 and 3 will be considered, I will take both issues together. What seem to be in the front burner of the issues in the substantive appeal is the burden of proof and whether the party on whom the burden of proof lies has discharged the burden? At this stage let me look at the general position of the burden of proof and on whom the burden in civil cases lies on and how it is discharged. The burden of proof in civil matter lies on the Claimant or Plaintiff who has the responsibility to prove his case on the balance of probability. This is because the burden of proof is on the person who will lose if no evidence is adduced before the Court. See Adegoke v. Adibi & Anor (1992) LPELR-95 (SC); Aminu & Ors v. Hassan & Ors (2014)1 SC (pt 1) 1. The 1st Respondent is the person who is alleging that he was unlawfully arrested. If no evidence is adduced, the 1st Respondent who is making the allegation will lose, therefore the initial burden is on him. This burden to proof the case does not shift as it is squarely on the Applicant, 1st Respondent who is alleging that his right was violated by his unlawful arrest or detention by the Appellant. While the burden to prove that the arrest of the 1st Respondent is constitutional and lawful lies with the Appellant, the initial burden to prove that he was arrested lies on the 1st Respondent. It is after the 1st Respondent has proved that he was arrested by the Appellant that the burden now shifts to the Appellant to show that the arrest was lawful. I do not think that the line of cases on the burden of proof in fundamental right cases exonerates the Applicant from initially proving that he was arrested. To sound more specific, the point I am laboring to make is that the initial burden is on the 1st Respondent to show that the Appellant arrested him and it is only when that has been done that the Appellant has the burden to show that the arrest was constitutional, legal and lawful. The Appellant has no burden to show that the arrest was lawful when the 1st Respondent has not proved that the Appellant arrested him. It is not enough to show that the 1st Respondent was arrested but he must go further to show that he was arrested by the Appellant or its agents. In this regard, I will refer to the case of Eziegbo & Anor v. Asco Investment Ltd & Anor (2022) LPELR- 56864(SC)
“… the law is that once facts deposed to by a person shows prima breach or contravention of the right to personal liberty, the burden of proving that the arrest and detention of the person is lawful and justified under the constitutional provisions, is on the party making the arrest. See Director SSS v. Agbakoba (supra), FRN v. Ifegwu (2003) 15 NWLR (pt. 843) 113 at 180, Ejefor v. Okeke (2007) 7 NWLR (pt. 665) 373, Onagoruwa v. IGP (1991) 5 N WLR (pt. 193) 593).” Per GARBA, J.S.C
In this regard, he will depend on the strength of his case and not on the weakness of the Respondent’s case. See Mohammed v. Wammako & Ors (2017) 7 S.C. 1; Ayorinde v. Kuforiji (2022) LPELR-56600 (SC). Since the case is fought on affidavit evidence, the affidavit is like the pleading and the evidence. The implication of this is that the Applicant in the lower Court now 1st Respondent in this appeal has the burden to show in the affidavit evidence that he was arrested and detained by the Applicant for the period he claims he was detained for. He must in the affidavit provide material facts to show that he was not just detained but that he was detained by the Appellant. If his affidavit is bereft of material evidence to that effect, this appeal will be allowed. See Buhari & Ors v. Obasanjo & Ors (2003) LPELR-813(SC).

At this point, I will look at the affidavit in support found at pages 17-20, and counter affidavit found at pages 29-32 of the record of appeal. The 1st Respondent in the supporting affidavit in paragraphs 10 and 11 averred through the deponent, Mr. Kurama Modu, who described himself as a human right activist and cousin to the 1st Respondent that armed men came to arrest the Applicant and drove with him to an unknown destination but he was later informed that the Applicant was detained at Giwa Barracks Maiduguri. I reproduce the said paragraphs:
10. That the team of soldiers fully armed to the teeth arrested and drove off with the said Alh. Bukar Yanganami to an unknown destination in his car.
11. That pursuant to paragraph 10 above, news reaching me and other family members is that he has been detained at the Giwa Barracks Maiduguri from 19th January, 2013 till date without access to his medical doctor, family and legal practitioner.
Let me take a look at the above paragraphs to determine whether there is enough evidence to show that the Appellant arrested and detained the 1st Respondent. In paragraph 10, the deponent to the affidavit in support averred that a team of soldiers fully armed arrested and drove the 1st Respondent away to an unknown destination. My challenge with this averment is that there is no evidence that the soldiers fully armed were from the Appellant. It is not enough to say that once armed men dressed in army uniform effect an arrest, they were sent by the Appellant. In Nigeria of today, so many people use armed soldiers for recovery of debt etc purely outside their scope of duty. Sadly some military officers and indeed security operatives have allowed themselves to be used without the knowledge of their command headquarters for personal vendetta. They should not debase the uniform by allowing themselves to be used for such reasons or to settle personal score. See Egheghe v. State (2020) LPELR-50552(SC); The point I am making is that, the 1st Respondent should have gone further to narrow it down by pointing same to the Appellant. An addition to paragraph 10 to the effect that these are military officers sent by the Appellant would have driven home the point. This is particularly necessary since the Appellant denied any such arrest as I will soon refer to in the affidavit of the Appellant. This did not state or establish the fact that the Appellant or its agents arrested the 1st Respondent.
Paragraph 11 of the supporting affidavit did not help the 1st Respondent. The facility the 1st Respondent was detained would have cured the challenge in paragraph 10. If there is evidence that the 1st Respondent was detained in a facility under the control of the Appellant, for instance an army barracks, then a combined reading of paragraphs 10 and 11 will have completed the puzzle. Paragraph 11 in my view did not come to the rescue of the 1st Respondent because the averment did not satisfy the provision of the Evidence Act as the averment in paragraph 11 not been within his personal knowledge was lacking in substance in the failure to provide the name and the circumstance of the informant that the 1st Respondent was kept at the Giwa Barracks.
These paragraphs did not satisfy the provision of the law as the law requires that if information is not within the knowledge of the deponent, the deponent must state the source of the information otherwise that paragraph will not be admissible. All that the Applicant said in the affidavit through the deponent is that he got information that the Appellant was in Giwa Barracks. These paragraphs offend Section 115 (3) (4) of the Evidence Act which provides that if a fact is outside the knowledge of the deponent, he must state the source. I reproduce the appropriate Section:
“115 (3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.”
See Ezembogu & Anor v. Onyechi (2015) LPELR-25877(CA); Oboh & Anor v. NFL Ltd & Ors (2020) LPELR-55520 (SC). In Jimoh v. Hon. Minister Federal Capital Territory & Ors (2018) LPELR-46329(SC), the apex Court held:
“A deponent of an affidavit in any proceeding before a Court of law is a witness in the matter. Section 115 (1) of the Evidence Act, 2011 enjoins the deponent as a witness, to depose to facts in an affidavit that “either of his own personal knowledge or from information which he believes to be true”. It is not enough to set out in the preamble paragraphs of an affidavit for the deponent to restate the facts that he has been authorized either by his principal or employer, and the client to make the affidavit; and that he derived the facts averred in the affidavit in the course of his employment and/or from his personal knowledge and/or information generally. For every assertion in a specific averment the deponent, consistent with Section 115 (1), (3) & (4) of the Evidence Act, must disclose with particulars his source of information and belief.
The counter-affidavit of Charles Jibuaku, Esq., a Legal Practitioner, is replete with obvious hearsay and unverifiable facts.
Paragraph 4 of the counter-affidavit, for instance, avers “that private investigation reveals that the Applicant had secretly relinquished his interest in the res in favour of the deponent and/or other unknown persons, which fact is concealed from this Honourable Court but can be ascertained from the tenancy contracts and proof of payment of rent”. No tenancy contract or receipt for payment of rent was exhibited. The source of this information on which the weighty allegation is predicated remains a matter of conjecture. The averment, like many others in the counter-affidavit, is reckless, and offensive of the provisions of Section 115 of the Evidence Act. Paragraph 3 thereof does not state how the deponent of the counter-affidavit comes to the bold assertion “that the deponent of the Applicant’s affidavit is a total stranger to this proceeding.” The averment does not seek to discharge the burden of proof laid on his shoulders by Sections 131 and 132 of Evidence Act that he who asserts any facts must prove that those facts exist in order to succeed.
Upon reading the counter-affidavit, one gets the impression that it is tailored to meet an application for stay of execution of a judgment. There is no such prayer in the application. The quixotic counter-affidavit appears to substantially attack a phantom.” Per EKO, J.S.C.
The deponent of the supporting affidavit did not state the source of the information that the Applicant was detained in Giwa Barracks. This piece of evidence is not admissible and in the circumstance, there is no evidence before the lower Court to justify the decision of the lower Court.

Let me now look at the counter-affidavit where the Appellant in this appeal denied arresting or detaining the Applicant. At paragraphs 3 (d) (e) (f) (g) (h) (I) (j) (k) and (l) the 1st Respondent specifically denied the arrest and went on to say that by its record, the Applicant is not in their custody and indeed it never arrested anyone bearing the name of the 1st Respondent. I reproduce the paragraphs for ease of reference:
3(d) That the 2nd, 3rd, and 4th Respondents vehemently deny paragraphs 2, 4, 5, 6, 7, 8, 9, 10, 1, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 and states that they are false and untrue.
(e) That further to paragraph 3(d) above the 2nd, 3rd and 4th Respondents states further that upon receipt of the processes in this suit, the 2nd, 3rd and 4th Respondents conducted a thorough search into its records and a archives and found no record of the facts contained in paragraphs 6, 7, 8, 9, 10, 1, 12, 13, 14, 15, 16, 17, 18 and 19 nor the name of the Applicant.
(f) That these facts are indeed strange to the 2nd, 3rd and 4th Respondents and thus vehemently deny them.
(g) That he has gone through all the records of the 2nd, 3rd and 4th Respondents and he knows as a fact that no such operation was authorized or carried out by officers or agents of the 2nd, 3rd and 4th Respondents.
(h) That the 2nd, 3rd and 4th Respondents never arrested any person with the name Alh. Bukar Yaganami or any person so related whatsoever.
(i) That he knows as a fact that the 2nd, 3rd and 4th Respondents do not interfere with the activities of civilians.
(j) That at no point did the men and/or agents of the 2nd, 3rd and 4th Respondents bust into residential apartment of one Alh. Bukar Yaganami or anybody so related.
(k) That the 2nd, 3rd and 4th Respondents or their agents does not know the Applicant, have any dealings with the Applicant, neither do they transact any business or make any withdrawal from his account, if any.
(l) That the 2nd, 3rd and 4th Respondents or their agents never drove off with Alh. Bukar Yanganami to an unknown destination in his car.

Despite the fact that the 1st Respondent was unable to show that he was arrested and detained by the Appellant, the Appellant did not just make general denial but was specific in stating that it never arrested the 1st Respondent.

Placing both affidavits before the lower, from the state of the law, it is not difficult to say that the counter affidavit is more believable put side by side, the inadmissible averment in paragraph 11 of the affidavit in support. It is not the duty of the Appellant to show a list of the people in its custody to justify the fact that the Applicant is not in their custody. I had mentioned earlier that the initial burden that does not shift is on the Applicant, 1st Respondent in this appeal to show that he was arrested and detained by the Appellant for the period he alleged he was arrested and detained. It is when this is done that the Appellant has the duty to show that the arrest is lawful. The 1st Respondent from the evidence before the lower Court could not discharge its burden.

The lower Court seems to use the content of Exhibit A as basis of his judgment. The 1st Respondent and the Appellant relied on it. The lower Court acted and relied on it too, to prove that the Applicant was in the custody of the Appellant. The Appellant relied on it to show that the 1st Respondent had surrendered himself to the State Security Service. Exhibit A is the letter from the 1st Respondent’s counsel, Mohammed Adamu Esq. It is found at page 119 of the record of appeal. It is not referred to in the affidavit in support before the lower Court. It therefore cannot be evidence before the lower Court. It is a standalone document and therefore cannot be evidence before the Court. On a general note, the lower Court should not have referred to it. There is a twist however, that the document was annexed to the motion for leave and extension of time. It is part of the documents in the Court’s file and therefore the Court is at liberty to refer to it.

To this extent, we can look at Exhibit A, while doing that, I will not accord it much probative value as it is a letter from the counsel to the 1st Respondent which is not enough evidence to show that the 1st Respondent was arrested and detained by the Appellant. Let me take a closer look at Exhibit A made on 17th March 2014, three months after the action was instituted. The counsel said following the pandemonium in Giwa Barracks, the 1st Respondent escaped death and that he had not seen the 1st Respondent, his client. In the last two lines of paragraph 2 of Exhibit A, the counsel said he had adviced him to surrender himself to the authorities concerned. He went on to say the 1st Respondent has officially surrendered himself to the State Security Service. The inconsistency in Exhibit A does not help the case of the 1st Respondent in the lower Court and therefore the lower Court was wrong in relying on Exhibit A.

On the whole, the lower Court misplaced where the burden of proof lied in the case and therefore arrived at the judgment which occasioned a miscarriage of justice. The lower Court was wrong in holding that the 1st Respondent has discharged the burden placed on it by law and indeed the lower Court misconceived the position of the law relating to burden of proof in this matter. I resolve issues 2 and 3 in favour of the Appellant.

The Appellant in this appeal is seeking the following relief
“An order setting aside part of the ruling complained of which is dated 10th day of July, 2014 and the entire judgment of the trial Court dated the 10th day of July, 2014 in its entirety.”

Having resolved issues 2 and 3 in favour of the Appellant against the 1st Respondent, this appeal succeeds and it is allowed. The part of the ruling complained against by the Appellant and the entire judgment delivered on 10/7/2014 by M. T. Salihu J. of the Federal High Court, Maiduguri Division is hereby set aside.

I award N50,000 in favour of the Appellant against the 1st Respondent.

JUMMAI HANNATU SANKEY, J.C.A.: I have read in draft, the lead judgment of my learned brother, Ebiowei Tobi, J.C.A.

The first issue for determination in this appeal rests on the question of jurisdiction. The 1st Respondent had brought an application before the lower Court sometime in 2014 under the Fundamental Rights Enforcement Procedure Rules against the Appellant and 2nd Respondent for the enforcement of his fundamental rights. The facts disclosed that, whereas the Appellant was detained on 19-01-13, he filed the action on 22-01-14, a period of one year and three months after the act complained of. The Appellant had contested the jurisdiction of the lower Court to entertain the suit on the ground that, being an action against a public officer, the action was statute-barred having been filed outside the three months period prescribed under Section 2(a) of the Public Officers Protection Act, Laws of the Federation, 2010. However, the lower Court reasoned otherwise and overruled the Appellant.

On a close examination of the facts on record, there is no doubt that the Appellant is a public officer within the meaning of the Public Officers Protection Act. Secondly, the facts are not in dispute that the suit was filed outside of three months from the date of the detention of the 1st Respondent. Thirdly, while the case is not a claim for recovery of land or contract, it is a claim which contends that the public officer has acted beyond his powers and duties and contravened the Appellant’s fundamental human rights guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Therefore, contrary to the finding of the trial Court, the case falls within the few exceptions to Section 2(a) of the Public Officers Protection Act.

The objective of the Public Officers Protection Act is to afford protection to public officers in respect of anything done in the execution of or in carrying out their duties. The protection comes into play after the expiration of three months from the date of the commission of the act or acts which gave rise to the cause of action. The law removes the right of action, the right of enforcement and the right of judicial relief and leaves the claimant with a bare and empty cause of action which he cannot enforce in a Court of law after three months of the accrual of the cause of action. 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. See Governor, Delta State V Edun (2021) LPELR-53369(CA) 10-11, D-G; Offoboche V Ogoja LG (2001) 16 NWLR (Pt. 739) 458; Ibrahim V JSC (1998) 64 LRCN 5044; Egbe V Alhaji (1990) LPELR-1033(SC).
The view has been espoused by the Supreme Court in LCC V Ogunbiyi (1969) All NLR 297, 299; (1969) SCNLR 94, per Ademola, CJN thus:
“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.”
Again, in Hassan V Aliyu (2010) 17 NWLR (Pt. 1223) 547, 622, A-F, the Supreme Court per Adekeye JSC, relying on LCC V Ogunbiyi (supra), held:
“Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers Protection Law of such protection. The burden is on the Plaintiffs to establish that the Defendant had abused his position or that he has acted with no semblance of legal justification… Where a Public Officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provision of the Public Officers Protection Act. It is the duty of the Plaintiff to adduce evidence or facts to establish the bad faith, lack of semblance of legal justification.” (Emphasis supplied)
Still, in AG Adamawa State V AG Federation (2014) 14 NWLR (Pt. 1428) 515, 552-553, H-A, Peter-Odili, JSC referring to Hassan v. Aliyu (supra) per Onnoghen, JSC, held:
“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act.”
This Court has faithfully followed the law as laid down by the apex Court inMuhammed V ABU Zaria (2014) 7 NWLR (Pt. 1407) 500, 539-540, F-H, when it held that –
“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 guilty of flagrant abuse of the Fundamental Human Rights in the execution of his public duties.”

(Emphasis supplied)
See also Tajudeen V FIRS (2018) LPELR 43856 (CA) 13-20, C-B, per Iyizoba, JCA.
In the light of the settled position of the law as espoused in the above cases and numerous others, a public officer who abuses his powers or acts maliciously or outside the scope of his duty, especially when it has to do with the breach of constitutional provisions in respect of fundamental human rights, is not covered by Section 2(a) of the Public Officers Protection Act. In such a case, the time limited by the Act does not avail the public officer as he is no longer covered by the protection. The lower Court was therefore right in assuming jurisdiction and proceeding to hear the matter, even though for the wrong reason.

In respect of the merit of the appeal, it is evident from the facts contained in the Record of Appeal that the 1st Respondent failed to adduce sufficient evidence in proof of his assertion that he was arrested by the Appellant and/or its agents. This is more so in view of the Appellant’s vehement and categorical denial in its counter-affidavit, paragraphs 3 (d)–(l) in particular. The burden of proof to prove his assertion was first on the 1st Respondent. I agree with the lead judgment that the allegation contained in paragraph 11 of the 1st Respondent’s affidavit was a second-hand report which failed to name its source and therefore was not worthy of belief – See Section 115(3) & (4) of the Evidence Act, 2011. The 1st Respondent therefore failed to discharge the burden of proof on him in this regard. The trial Court therefore erred when it found in favour of the 1st Respondent and granted his claim.

It is therefore for these reasons that I find merit in the appeal. It succeeds and is allowed. I abide by the consequential orders in the lead judgment, including the order as to costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I have read in draft, the lead judgment of my learned brother, EBIOWEI TOBI, JCA, just delivered.

I agree with the reasoning and conclusion of my learned brother that the appeal is meritorious.

It is for the reasons therein adumbrated in the lead judgment, which I adopt as mine, (with profound gratitude) and I too, allow the appeal and set aside the judgment of the lower Court delivered on the 10th July, 2014, for lacking in merit.

I endorse the order made on cost contained in the lead judgment.