NDLEA & ORS v. OWEREBULAM (2020)

NDLEA & ORS v. OWEREBULAM

(2020)LCN/13947(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Monday, February 10, 2020

CA/PH/7/2009

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

NATIONAL DRUG LAW ENFORCEMENT AGENCY 2. KASIRU ABDULAHI 3. RICHARD GHANG GYANG 4. GBADAMOSI SHAFFI 5. THOMAS GULE 6. ISA HARUNA APPELANT(S)

And

DONALD OWEREBULAM RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPEAL IN AN INTERLOCUTORY DECISION WHCH IS NOT ON A GROUND OF LAW ALONE IS COMPETENT

In the case of UBN Plc V. Sogunro & Ors (2006) LPELR – 3393 (SC); the Supreme Court held: “… an appeal in an interlocutory decision which is not on a ground of law alone, is not competent when prior leave was not sought and obtained. See Ichie Anoghalu & 3 Ors V. Nathan Oraelosi & Anor (1999) 10 SCNJ 1 at 10, 12; (1999) 13 NWLR (Pt.634) 297 Per. Ogundare JSC.
In the case of Igbokwe V. Edom & Ors (2015) LPELR – 25576 CA it was held:
“… Appellant must seek the leave of the Lower Court or of the Court of Appeal to raise such appeal, belatedly, especially where the ground of Appeal is not a question of law alone…”
See also Onowu V. Ogboko & Ors (supra) where we held:
“The law is however trite that where Appellant appeals against an interlocutory decision of a Court, he must seek and obtain the leave of the Lower Court or the appellate Court to appeal, especially where the ground(s) of appeal raise(s) question of facts or of mixed law and facts. See Section 14(1) of the Court of Appeal Act 2004… Though by Section 241(1) (a) (b) of the Constitution of Nigeria 1999, appeal can lie without leave… where it is of a final decision… or where the ground of Appeal is of law alone, it is always advisable to seek leave where the decision is not of a final judgment… This is because, it is sometimes difficult to conclude whether the ground(s) of appeal is purely of law and raises no issue of fact or mixed land and fact. See UBA PLC V. Onuoha & Ors(2014) LPELR – 24360 (CA); NJC V. Agumagu (2015) LPELR – 24503 CA.
The fate of taking out Interlocutory Appeal without prior leave, where same is required, is settled that it is incompetent.
In Okolonwamu V. Okolonwamu & Ors (2019) LPELR – 46942 SC, it was held:
“Where an appeal can only be heard after leave has been sought and obtained by the appellants, the Court would have no jurisdiction to hear the appeal if the condition precedent is not first of all obtained. Such an appeal is incompetent and should be struck out. See Abubakar V. Dankwambo (2015) 18 NWLR (Pt.1491) 213…” PER MBABA, J.C.A.

INTERPRETATION OF SECTION 2 OF THE PUBLIC OFFICER’S PROTECTION ACT

I think it has to be resolved, first, whether or not, in fact, the 2nd to 7th Appellants, while in the course of exercise of their duties, unlawfully wounded, unlawfully assaulted and illegally detained the Plaintiff and violated his fundamental rights, before it can be determined whether they can take the benefit of the Section 2 of the Public Officers’ Protection Act.
That law provides that:
“Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any act or law or 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 damage or injury, within three months next, after the ceasing thereof.”
In interpreting the above law, the Court is always consistent that “such an officer who acted within the confines of his duties, cannot be sued outside the limitation period of three months.” CBN and Anor V. Michael (2018) LPELR – 44251 (CA); Ibrahim Vs Judicial Service Commission Kaduna State

(1998) 14 NWLR (Pt.584) 1; Hassan V. Aliyu (2010) 17 NWLR (Pt.1223) 547.
In the case of Sule & Ors V. Orisajimi (2019) LPELR – 47039 SC, it was held that the Public Officer’s Protection Act was meant to protect officers who act in good faith, and my lord Bage JSC said:
“On the Issue of Section 2 (a) of the Public Officers’ Protection Act, I’m in agreement with the Court below. The law is now settled that Section 2(a) of the Public Officers’ Protection Act had been enunciated by the Supreme Court in the case of Nwankwere V. Adewunmi (supra), per Bret JSC, 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. See Lagos City Council Trading under the name of Lagos City Transport) V. Ogunbiyi (1969) ALL NLR 287 at 289.Clearly the Appellants acted in abuse of office and cannot benefit from the protection of Section 2(a) of the Public Officers’ Protection Act.”
In the case of Agboroh V. WAEC (2016) LPELR – 40974 CA, this Court held; “Various judicial decisions have been made to explain the rationale and application of the above law (Public Officers Protection Act), but it is always clear that the provisions did not intend to provide a cover or bunker for a public officer to hide to commit mischief or run there for refuge after committing the mischief. See Yabugbe V. C.O.P (1992) NWLR (Pt.234) 152; Moyosore V. Gov. of Kwara State & Ors (2012) 5 NWLR (Pt.1293) 242.” PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Ruling of the Federal High Court in Suit No. FHC/UM/CS/07/2000, delivered on 13th June, 2008 by Hon. Justice C.V. Nwokorie, wherein the Court dismissed a preliminary objection and held that the Suit was not statute barred.

At the Trial Court, the Plaintiff (now Respondent) in a Writ of Summons, filed on 12/12/2000, had sought the following reliefs:
(1) A declaration by the Honourable Court that the 2nd – 7th Defendants who are in the employment of the 1st Defendant are not fit and proper persons to be employed in the public service of the Federal Republic of Nigeria.
(2) A declaration… that the 2nd – 7th Defendants are not fit and proper persons to remain in the service of the 1st Defendant as employees, servants and/or agents of the 1st Defendant, and therefore liable to be dismissed.
(3) N1,000,000 (One Million Naira) being general damages for unlawful wounding, unlawful assault and illegal detention of the Plaintiff by the Defendants in that on or about the 16th day of December, 1999, the 2nd – 7th Defendants, unlawfully wounded, unlawfully

assaulted and illegally detained the Plaintiff in a cell at the Office of the 1st Defendant along Owerri – Aba Road, Naze, Owerri North L.G.A, within the jurisdiction for no justifiable reason and in utter violation of the Fundamental Rights of the Plaintiff to dignity of his person, freedom of movement and liberty.
(4) And Order on the 1st Defendant dismissing the 2nd – 7th Defendants from the employment and/or services of the NDLEA (the 1st Defendant).
(5) An Injunction perpetual restraining the Defendants by themselves, their servants, agents and privies from any further violation of the Fundamental Human Rights of the Plaintiff.”

The Defendants (Appellants) filed Amended Statement of Defence on 13/7/2004 denying the claim, and pleaded therein, that the Suit was statute barred, and raised a preliminary objection to the trial, seeking dismissal of the Suit. They followed up with a motion on 4/2/2005, praying for the dismissal of the Suit on the ground that it was statute barred, pursuant to the Public Officers Protection Act, Cap 379, Laws of the Federation, 1990. The Respondent, as Plaintiff, filed a Counter – Affidavit and

Defendants filed a further affidavit in reply. The application could not be taken before the initial Judges (J.E. Shakar J. and S.Yahaya J, who were seised of the case at different times), until Hon. Justice C.V. Nwokorie assumed jurisdiction in the case in 2008, and upon hearing the preliminary objection, ruled that the Suit did not come within the purview of the Public Officers Protection Act, and that the said point of law by the Appellants was an afterthought. He said:
“I have studiously examined all the processes in these proceedings… I have also carefully considered, examined and evaluated all the brilliant submissions of both learned Counsel together with the judicial and statutory authorities… I am therefore able to find and accordingly hold, that this Suit does not come within the purview of the Public Officers Protection Act, aside from my earlier finding that the rather belated raising of this point of law in 2004, almost four years this Suit was pending, was at best an afterthought, perhaps designed only to further delay the speedy determination of the respective rights and obligations of the parties.” (Page 132 of the Records)

Dissatisfied with that Ruling, Appellants filed this Appeal on 20/6/2008, disclosing three grounds of Appeal (pages 69 to 71 of the Records). They filed their Brief on 23/2/2009 and donated three Issues for the determination of the Appeal, as follows:
(1) Whether the learned trial Judge was right when he held that the subject matter of this Suit as endorsed on the Writ of Summons and Statement of claim does not come within the purview of the Public Officers Protection Act. (Ground 1)
(2) Whether the learned trial Judge was not in error when he held that the defence of preliminary objection that the Suit was statute barred was belated in that it was raised on the 15/5/2005, (sic) after four years that the Suit was filed. (Ground 2)
(3) Whether upon proper evaluation of the affidavit evidence and all other processes filed before the trial Court, the Hon. Trial Judge’s holding that “the rather belated raising of this point of law in 2004, almost four years after this Suit was pending, was at best an afterthought, perhaps designed only to further delay the speedy determination of the respective right and obligations of the

parties” was not speculative, perverse and unsupported.” (Ground 3).

The Respondent filed Amended Brief on 22/1/2016 which was deemed duly filed on 22/1/2016, which was deemed duly filed on 28/1/2020 (when this Appeal was heard). The Respondent raised a preliminary objection in the Brief against the Appeal on the ground that the 3 grounds of the Appeal are incompetent, not being purely grounds of law, under Section 241(b) of the 1999 Constitution (as amended), and yet Appellants did not seek and obtain the leave of this Court to appeal, same being an interlocutory Appeal.

In the alternative, the Respondent distilled a lone issue for the determination of the Appeal, namely:
“Whether, having regard to the facts pleaded in the amended statement of claim, the protection as provided for in Section 2 of the Public Officers Protection Act, Cap 379, Laws of the Federation of Nigeria, 1990, avails the Appellants?” (Grounds 1 and 2)

RESOLUTION OF PRELIMINARY OBJECTION
As it is expected, we have to consider the preliminary objection first, being a threshold issue. Onuegbu & Ors V. Gov. Imo State & Ors (2015) LPELR

– 25968 CA; Rabiu V. Adebajo (2012) All FWLR (Pt.43) 1836.

The gravamen of the Preliminary Objection is that Appellants should have sought and obtained the leave of this Court (or of the Court below) to appeal against the ruling of the trial Court, being an interlocutory decision, especially as the grounds of the Appeal (grounds 1 and 3) did not raise issue(s) of law alone; that ground one raised error in law and misdirection, whereas a ground of appeal cannot be an error in law and a misdirection, at the same time (Nwadike V. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744); that ground 2 merely expressed opinion which did not fall within the scope of question of law; and that ground 3 says the decision of the trial Court is against the weight of evidence. Counsel relied on the said case of Nwadike V. Ibekwe (Supra) and Ogbechie V. Onochie (1986) 2 NWLR (Pt.23) 484, to urge us to strike out the appeal for incompetence.

In their Reply Brief, which they termed “Reply on Points of Law to Respondent’s Preliminary Objection filed and Dated on 22/10/2016”, (deemed duly filed on 28/1/2020). Appellants argued that the grounds of Appeal are grounds

of law and that they required no leave of Court to Appeal on them. He relied on the case of Ugboaja V. Sowemimo & Ors (2008) 7 SC 1 at 18 – 19 on how to construe a ground of law and/or of fact, or mixed law and fact.

The 3 Grounds of the appeal by Appellants stated as follows:
“GROUND ONE: ERROR IN LAW/MISDIRECTION
The Learned trial Judge erred in law and misdirected himself when he heard (sic) that the subject matter does not come within the purview of the Public Officers Protection Act.
PARTICULARS OF ERROR/MISDIRECTION
a) That the Trial Judge failed to appreciate that the Respondent’s writ of summons was filed on 12th day of December, 2000.
b) That the cause of action in this Suit arose on the 16th day of December, 1999.
c) The Appellants herein are persons covered by the Public Officer’s Protection Act.
d) The 2nd – 7th Appellants under the employ of the 1st Appellant were carrying out their statutory duties when the alleged breach complained by the Respondent occurred.
e) That the learned trial Judge did not follow the laid down principles guiding the application of Public Officers

Protection Act.
GROUND TWO: ERROR IN LAW
The learned trial Judge erred in law, when, he heard (sic) that failure to raise the point of law on time, that is, raising the point of law on 13th day of June, 2004, four Years after the writ of summons was issued is belated, and an afterthought.
PARTICULARS OF ERROR
a) The point of law that the subject matter of this Suit is statute barred is an issue of jurisdiction. It can be raised at any time.
b) The Issue of point of law was raised in this matter when issues were joined by parties.
GROUND THREE:
The Ruling/Decision is unreasonable and cannot be supported having regard to the weight of evidence before the Court.” See Pages 69 – 70 of the Records of Appeal.

It is surprising to me that Appellants’ Counsel argued that the grounds of this Appeal are all of law, and that they required no leave of Court to appeal against the Ruling on these grounds, including the 3rd ground that is outrightly on the weight of evidence! Of course, every Counsel is expected to know that a ground of appeal that “the judgment is against the weight of evidence” is basically a

ground of facts and it throws up issues of facts and law, calling for the re-evaluation of the entire evidence, and seeking a review of all the facts and evidence adduced in the case to reach the conclusion. See Mogaji v. Odofin (1978) 4 SC 91 at 93 – 94; Ayabam V. C.O.P Benue State (2019) LPELR – 47283 CA; Udosen V. NDE (2019) LPELR – 47157 CA; TAL & Ors V. Anampara & Ors (2016) LPELR – 40799 CA; Awusa V. NA (2018) LPELR – 44377 (SC).
Even the ground one, whereof the particulars alleged that “Appellants herein are persons governed by the Public Officers Protection Act”; and that Appellants were carrying out their statutory duties, when the alleged breach complained by Respondent occurred and that the trial Court did not follow laid down principles guiding the application of Public Officers Protection Act, all suggest some background facts, which cannot be assumed, in this appeal, in the absence of application for leave to appeal against the interlocutory Ruling.
Appellant has rightly cited the case of Ugboaja V. Sowemimo & Ors (2008) 7 SC P.1 at 18 – 19, to the effect that:

“… in order to determine the nature of the ground of appeal, one must look closely at the main ground, together with the particulars thereof, to see whether it is a ground of law, fact or mixed law and fact. It is therefore not enough for Counsel for the Appellant to brand a ground of appeal, a ground of law to make it one. It is also settled law that a ground of appeal is the totality of the reasons why decision complained of is considered wrong by the party appealing.”
We have had cause, many times, to caution Counsel and Appellants, that in seeking to appeal against an interlocutory decision of the lower Court, it is always advisable to seek and obtain the leave of Court to do so, especially where Appellants is in doubt that the grounds of appeal are purely of law, to peg the appeal exclusively within Section 241(1) b of the 1999 Constitution, as amended, namely appeal on ground(s) of law, alone (to permit or excuse the taking out of the appeal without leave of Court). See Onowu V. Ogboko & Ors (2016) LPELR – 40074 CA.

In the case of UBN Plc V. Sogunro & Ors (2006) LPELR – 3393 (SC); the Supreme Court held:

“… an appeal in an interlocutory decision which is not on a ground of law alone, is not competent when prior leave was not sought and obtained. See Ichie Anoghalu & 3 Ors V. Nathan Oraelosi & Anor (1999) 10 SCNJ 1 at 10, 12; (1999) 13 NWLR (Pt.634) 297 Per. Ogundare JSC.
In the case of Igbokwe V. Edom & Ors (2015) LPELR – 25576 CA it was held:
“… Appellant must seek the leave of the Lower Court or of the Court of Appeal to raise such appeal, belatedly, especially where the ground of Appeal is not a question of law alone…”
See also Onowu V. Ogboko & Ors (supra) where we held:
“The law is however trite that where Appellant appeals against an interlocutory decision of a Court, he must seek and obtain the leave of the Lower Court or the appellate Court to appeal, especially where the ground(s) of appeal raise(s) question of facts or of mixed law and facts. See Section 14(1) of the Court of Appeal Act 2004… Though by Section 241(1) (a) (b) of the Constitution of Nigeria 1999, appeal can lie without leave… where it is of a final decision… or where the ground of Appeal is of law alone, it is always advisable to seek

leave where the decision is not of a final judgment… This is because, it is sometimes difficult to conclude whether the ground(s) of appeal is purely of law and raises no issue of fact or mixed land and fact. See UBA PLC V. Onuoha & Ors(2014) LPELR – 24360 (CA); NJC V. Agumagu (2015) LPELR – 24503 CA.
The fate of taking out Interlocutory Appeal without prior leave, where same is required, is settled that it is incompetent.
In Okolonwamu V. Okolonwamu & Ors (2019) LPELR – 46942 SC, it was held:
“Where an appeal can only be heard after leave has been sought and obtained by the appellants, the Court would have no jurisdiction to hear the appeal if the condition precedent is not first of all obtained. Such an appeal is incompetent and should be struck out. See Abubakar V. Dankwambo (2015) 18 NWLR (Pt.1491) 213…”
That obviously, is the fate of this Appeal, Appellants having failed to invoke the jurisdiction of this Court to entertain the interlocutory Appeal, same being founded on complaints bordering on law, facts and mixed law and facts.
I, therefore, hold that this Appeal is incompetent, as argued by the

Respondent and ought to be struck out. The preliminary objection is therefore valid and is upheld. I strike the Appeal, for incompetence.

I also think that even if the Appeal is heard on the merits, Appellants stand no chance of success on the main issue for determination, which I think has been properly summarized by the Respondent – namely “whether, having regard to the facts pleaded in the amended statement of claim, the protection as provided for the Section 2 of the Public Officers Protection Act, Cap 379, Laws of the Federation of Nigeria, 1990, avails the Appellants?”

The pleadings and the relief sought had alleged that the 2nd to 7th Appellants had “in the course of their duties as agents and/or servants of 1st Defendant, unlawfully wounded, unlawfully assaulted and illegally detained the Plaintiff in a cell for no justifiable reason and in utter violation of the Fundamental Rights of the Plaintiff to dignity of his person, freedom of movement and liberty.”

I think it has to be resolved, first, whether or not, in fact, the 2nd to 7th Appellants, while in the course of exercise of their duties, unlawfully

wounded, unlawfully assaulted and illegally detained the Plaintiff and violated his fundamental rights, before it can be determined whether they can take the benefit of the Section 2 of the Public Officers’ Protection Act.
That law provides that:
“Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any act or law or 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 damage or injury, within three months next, after the ceasing thereof.”
In interpreting the above law, the Court is always consistent that “such an officer who acted within the confines of his duties, cannot be sued outside the limitation period of three months.” CBN and Anor V. Michael (2018) LPELR – 44251 (CA); Ibrahim Vs Judicial Service Commission Kaduna State

held;
“Various judicial decisions have been made to explain the rationale and application of the above law (Public Officers Protection Act), but it is always clear that the provisions did not intend to provide a cover or bunker for a public officer to hide to commit mischief or run there for refuge after committing the mischief. See Yabugbe V. C.O.P (1992) NWLR (Pt.234) 152; Moyosore V. Gov. of Kwara State & Ors (2012) 5 NWLR (Pt.1293) 242.”

In this case at hand, the Respondent had deposed to say that the 2nd to 7th Appellants were on a frolic of their own at the time the cause of action arose; that they were executing unlawful duty, upon the lawful authority imposed on them by 1st Defendant (See page 131 of the Records of Appeal). I think that allegation has to be resolved, by hearing the case to determine whether they were on a frolic, and the case should not be brushed aside or short-changed by premature reliance on limitation law – Public Officers’ Protection Act.

I have already ruled that the Appeal is incompetent and should be struck out. I only considered the merit of it, in case of appeal going to the Supreme Court.

It is struck out with cost of Fifty Thousand Naira (N50,000.00) against the Appellants, payable to Respondent.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother Mbaba JCA.
I am in complete agreement that the preliminary objection to the hearing of the appeal succeeds and is hereby upheld by me.
I am however stating and expressly too, that I am not expressing any view regarding the merit of the appeal as has been done in the leading judgment. This is because the success of the preliminary objection which is to the effect that there is in law no appeal before this Court, has rendered this unnecessary. See the case of EFFIOM V. ETENG (2018) LPELR-46130(CA) where this Court stated thus: –
Having found that this Court is divested of the jurisdiction to hear the appeal, the law makes it idle to consider the other Issues canvassed by the feuding parties. In lkechukwu V. FRN (2015) NWLR (pt. 1457) 1 at 21, Nweze, JSC, incisively, declared:
“It cannot be gainsaid that, as a general rule, an Intermediate Court, like the lower Court, (Court of Appeal) has a duty to pronounce on

all the issues before it. However, there are some exception to the above rule that applies to the lower Court, as an Intermediate Court. Thus, for example, where the said Court, as an intermediate Court, decided that it lacks jurisdiction in an (sic) before it, it then becomes unnecessary to consider other Issues once it has taken a decision on the question of jurisdiction. See also, Braithwaite V. Skye Bank Plc. (2013) 5 NWLR (Pt. 1346) 1; Oni V. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80. …Where the jurisdiction of a Court to hear a matter is undermined, the order it makes is plain, it is one of striking it out. See Okolo V. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87;…”
See also amongst many others, the cases of OLUFEMI V. KASSIM (2019) LPELR- 46790 (CA) and NHRI V. OYELEDUN (2018) LPELR- 46052(CA).

Flowing from all that has been said, is that I, too strike out the instant appeal for being incompetent. I abide by the order in respect of costs as contained in the leading judgment.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree.

Appearances:

J.O. MOMODU ESQ. For Appellant(s)

NATHS EPELLE ESQ., with him, J.O. UDEGBULEM ESQ. For Respondent(s)