O. J. BABATUNDE & ANOR v. AUSTINE ELUWA
(2011)LCN/4288(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of February, 2011
CA/PH/319/2007
RATIO
JURISDICTION OF THE STATE HIGH COURT: WHETHER A STATE HIGH COURT HAS THE JURISDICTION OR COMPETENCE TO ENTERTAIN AN ACTION IN WHICH THE FEDERAL GOVERNMENT OR ANY OF ITS AGENCIES IS A PARTY
In the instant appeal it is not in dispute that the 2nd Appellant, National Drug Law Enforcement Agency is a Federal Government Agency while the 1st Appellant is an employee of the 2nd Appellant; it also not disputed that the cause of action is a claim for damages for the alleged tortuous action of the Appellants. In the light, all these, therefore the action on hand came squarely within the provision of section 251(1)G) of the 1999 Constitution, this translate to mean that this action is within the exclusive Jurisdiction of the Federal High Court. In NATIONAL ELECTRIC POWER AUTHORTTY V. EDEGBARO & 15 ORS. (2003) FWLR (PT.139) 1556 at 1569. The Supreme Court Ogundare, JSC held thus;- “A careful reading of paragraphs (Q) (r) and (s) reveals that the intention of the lawmakers was to take away the Jurisdiction of State High Court and confer same exclusively on the Federal High Court actions in which the federal Government or any of its Agencies is a party while paragraph (s) talked of actions for declarations or Injunctions, the provision extended this to actions for damages, Injunctions or specific performance. It did not say as the learned trial Judge with profound respect appears to read into it that action for damages, Injunction or specific performance against the Federal Government or its agencies could still come before a State High Court. Further at page 1571 the learned JSC states:- “From what I have said earlier in this Judgment the aim of paragraphs (Q) and (s) of subsection I of section 230 of the 1979 Constitution was to vest exclusive Jurisdiction in the Federal High Court in maters in which the Federal Government or any of its agents was a party. A State High Court would no longer have Jurisdiction in such matters notwithstanding the nature of the claim in the action” In this appeal it is clear that from the parties involved and the nature of the claim in the action, it is certain that the Imo State High Court has no Jurisdiction whatsoever to entertain the claim of the Respondent as Jurisdiction in such matters is exclusively vested in the Federal High Court. Based on my findings that the Imo State High Court lacks Jurisdiction to entertain the Respondent’s action before it, issue No. 1 is resolved -against the Respondent in favour of the Appellants. As Jurisdiction is a very fundamental fact or that robs on the competence of a Court to hear and decide on a matter and the trial Court lacks Jurisdiction to entertain the Respondent’s Claim, it would be unnecessary to consider other issues canvass in this appeal as whatever transpired in trial Court is a nullity. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
PUBLIC OFFICER PROTECTION ACT: LIMITATION PERIOD WITHIN WHICH AN ACTION AGAINST A PUBLIC OFFICER MUST BE BROUGHT AND POSITION OF THE LAW WHERE AN ACTION AGAINST A PUBLIC OFFICER IS BROUGHT AFTER THE STIPULATED LIMITATION PERIOD
…the 1st appellant in this case is a Public Officer and by virtue of the provision of Section (2) (a) of the Public officers Protection Act Cap. P.41 Laws of the Federation of Nigeria, an action against him must be brought not later than 3 months of the accrual of the cause of action. Any action brought against a Public Officer after the stipulated limitation period is said to be statute barred and the effect also is that the court does not have any jurisdiction to entertain such an action. The main objective of the Public Officers (protection) Act Cap. p. 41 LFN 2004 is to protect Public Officers who have acted pursuant to the duties of their office from being harassed with stale claims. See Ibrahim vs. J.S.C. (1998) 14 NWLR (Pt.584) 1 (SC) Fajimolu vs. Unilorin (2007) 2 NWLR (Pt. 1017) 74 C.A. PER MOJEED ADEKUNLE OWOADE, J.C.A.
ANY PERSON IN PUBLIC OFFICE: MEANING OF THE PHRASE “ANY PERSON IN PUBLIC OFFICE” AS STIPULATED IN SECTION 2 (A) OF THE PUBLIC OFFICER (PROTECTION) ACT
…the words “any person in Public Office” as stipulated in Section 2 (a) of the Public Officer (Protection) Act does not only refer to natural persons or persons sued in their personal names but extend to public bodies, artificial persons, institutions or persons sued by their official names or titles. C. B. N. vs. Adedeji (2004) 1st NWLR (Pt.890) 226 CA. In the instant case, apart from the fact that the suit was not entertainable before the Imo State High Court, both appellants are indeed public servants in the context of the provision of Section 2 (a) of the Public Officer (Protection) Act. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. O. J. BABATUNDE
2. NATIONAL DRUG LAW ENFORCEMENT AGENCY Appellant(s)
AND
AUSTINE ELUWA Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Imo State High Court sitting at Owerri delivered by Hon. Justice F. I. Duroha Igwe on the 7th day of May, 2003.
The facts leading to this appeal are stated thus:-
The Respondent claimed that on the 11th March 1999, he sustained injuries which he claimed to be as a result of negligent firing of gun shots from the rifle being carried by the 1st Appellant who is a staff of the 2nd Appellant. The Respondent also claimed that on the 16th April 1999, the 1st Appellant while acting as a servant and employee of the 2nd Appellant caused his unlawful or wrongful detention at the office of the 2nd Appellant at Naze Road Owerri, Imo State. The Respondent therefore claimed as per the particulars of claim endorse on the writ of summons dated 10th June 1999 and filed on 15/6/99.
Pleadings were filed and exchanged. The writ of summons and statement of claim dated 10th June, 1999 were filed on 15th June, 1999, a period of over three months. The Appellants filed appearance and Statement of Defence out of time via an application for extention of time. The Respondent also filed a notice of produce on 16/9/99. The Respondent filed reply to the Statement of Defence on 28/11/2000 via application dated 21/11/2000.
Trial in the Suit commenced on the 24th January 2002. The Respondent testified as Plaintiffs witness No. 1 and tendered Exhibits. He called no other witness. The Appellants did not testify neither did they call witness.
On the 7th day of May 2003, the trial Imo State High Court presided over by Hon. Justice F.I. Duroha- Igwe delivered Judgment in favour of the Respondent and ordered the Appellants to pay to the Respondent the sum of seventy nine thousand Naira (N79,000.00) special damages for loss of earnings; five hundred thousand Naira (N500,000.00) general damages for pain and suffering and Two hundred thousand (N200,000,00) Naira for wrongful or unlawful detention.
Dissatisfied with the Judgment of Imo State High Court, the Appellant filed Notice of Appeal dated 21st day of April, 2006 out of time with the leave of this Hon. Court dated 3rd day of May, 2005. On the 17th December 2007, the Appellants filed an application for leave to file one additional ground of appeal.
The appeal was heard on the 11/11/2010, learned Counsel to the Appellants Mr. J.O. Momodu informed the Court that the Appellants’ brief of argument is dated 19/1/09 and deemed filed on 20/11/07. Counsel adopts the brief of Argument and urged the Court to allow the appeal.
Learned Counsel for the Respondent Mr. O. C. Ewurum informed the Court that the Respondent brief of Argument is dated 23/3/09 and deemed field on 11/5/10.Counsel adopts the brief of argument and urged the Court to dismiss the appeal.
Learned Counsel for the Appellants formulated two Issues for determination from the four grounds of appeal filed in Court, the issues are stated as follows:
1. Whether the High Court of Imo State had Jurisdiction to hear and determine the action in view of Section 251(l) (r) (s) of the 1999 Constitution and Section 2(a) of the Public Officers Protection Act Cap P41 Laws of the Federation of Nigeria 2004′
2. Whether the learned trial Judge was right in awarding the sum of seven hundred and seventy nine thousand Naira (N779,000.00) only as special and general damages without following laid down Principles.
The Respondent adopts the Appellants’ Issues for determination as contained in their paragraphs 3.1 and 3.2 of the Appellants Brief of Argument.
On Issue No.1, learned Counsel for the Appellants submits that the learned trial Judge of the Imo state High court was wrong in law in hearing and determining the matter. That it is not in dispute that the 2nd Appellant is a Federal Government Agency while the 1st Appellant is an employee of the 2nd Appellant. That the Respondent’s Claims as per the particulars endorsed on the writ of Summons dated 10th June, 1999 and the relief sough at paragraph 15 of the statement of claim at page 8 are for damages arising from the acts of the 2nd Defendant and its agents.
Counsel to the Appellants submits that the appropriate Court to hear and determine the matter is the Federal High Court and not the Imo State High Court in accordance with the provisions of Section 251(1) (Q) (r) and (s) of the Constitution of the Federal Republic of Nigeria 1999, reference made to NATIONAL ELECTRIC POWER AUTHORITY V. MR. B. EDEGBERO & 15 ORS. (2003) FWLR (PT.139) 1556 AT 1559 E – F and 1571 B – C; DR. TAIWO OLORUNTOBA.OJU & ORS. V. PROFESSOR P.A. DOPMU & ORS. (2008) ALL FWLR (PT.411) 810 AT 829 – 830; FGN v. OSHIOMOLE (2004) 3 NWLR (PT.860) 305 AT 322-323.
Counsel for the Appellants further submits that the Imo State High Court lacked Jurisdiction to entertain the matter as the Respondent’s claim for damages was statute barred. That the cause of action accrued on the 11th day of March, 1999 while the Suit was instituted on the 15s June 1999 outside the statutory period of 3 months allowed by the public officers Protection Act Cap P41 laws of the Federation, 2004.
It is submitted for the Appellants that the action of the 1st Appellant complained of by the Respondent for which the 2nd Appellant was held vicariously. Liable occurred when the 1st Appellant was discharging his official functions. The Appellants therefore contends that the Respondent ought to have instituted the action within a period of three (3) months from the date of action being 11th March, 1999. That failure to do so has robbed the trial Court of Jurisdiction to hear the matter, reference made to VICTOR EKEOCHA V. CUSTOMS. IMMIGRATTON & PRISONS SERVICE BOARD & 3 ORS. (2007) ALL FWLR (PT.392) 1976 at 1984; FORESTRY RESEARCH INSTITUTE OF NIGERIA v. MR. I. R. ENAIFOGHE GOLD (2007) ALL FWLR (PT.380) 1444 at 1457 paragraph D – E.
Learned counsel to the Appellant submits that the Imo state High court lacked Jurisdiction to hear and determine the matter and urged this Hon. Court to allow the appeal and dismiss the Respondent’s matter.
In reply to the submissions on issue No.1, learned Counsel to the Respondent submits that in view of the decision of the Supreme court in ONUORAH V. KADUNA REFINING & PETROCHEMICAL CO. LTD.. (2005) 6 NWLR (PT.921) 393, it does not appear that the law is settled that once a Suit involves the Federal Government or any of its agencies (notwithstanding the nature or type of claim or suit) then the matter must go to Federal High Court having jurisdiction in the area. That to confirm that a look at the list of items assigned to the Federal High Court is still necessary. Counsel referred to the Judgment of Akintan, JSC at page 405 which states:-
“In other words, section 230(1) provides a limitation to the general and all embracing Jurisdiction of the State High Court because the items listed under the said Section 230(1) can only be determined exclusively by the Federal High Court. All other items not included in that list would therefore still be within the Jurisdiction of the State High Court. In the instant case, since disputes founded on contracts are not among those included in the additional jurisdiction conferred on the Federal High Court, the Court therefore had no Jurisdiction to entertain the Appellants’ Claim.”
He went on to hold –
“The question whether the Respondent is a subsidiary or agent of NNPC. Or not, has no role consideration of Jurisdiction of the Court is being made. This is because, as already stated above, the determining factor the Court, which in this case, is one founded on breach of contract.”
Counsel for the Respondent argues that the decision in ONUORAH’S case is that the cause of action of the Plaintiff is the determinant fact or not necessarily a consideration of who the parties are. That it is only when the cause of action falls within the list reserved for Federal High Court, that the Parties and who they are (whether Federal Government Agency or Subsidiary) comes into play.
It is submitted for the Respondent that following the cases of FEDERAL MORTGAGE BANK OF NIGERIA V. P.N. OLLOH (2002) 9 NWLR (PT.773) 475; 7-UP BOTTLING CO. v. ABIOLA & SONS (2001) 13 NWLR (PT.730) 469; ADELEKAN v. ECU-LINE NV (2006) ALL FWLR (PT.321) 1213; AMADIUME V. IBOK (2006) ALL FWLR (PT.21) 1241;that a case of tort such as the Respondent’s case which concern the tort of (i) Negligence and (b) Unlawful or wrongful detention (i.e. false imprisonment) is not one of the items specifically assigned to Federal High Court under section 251(1) of the Constitution of Federal Republic of Nigeria 1999. It belongs to State High Court as held by the authorities cited and Counsel to the Respondent urged the Court to so hold.
On Public officers Protection Act cap. P41 Laws of the Federation, 2004 which the Appellants relied upon both in their grounds of Appeal and Issue No.1 for determination and arguments was not the law applicable when the cause of action arise in 1999. That it is the duty of the Appellant to supply and base their complaint on the appropriate applicable law, failing which that ground and Issues predicated on it should fail.
Further Counsel to the Respondent submits that the Claims of the Plaintiff/Respondent at the lower Court were two fold namely:-
I. Negligence that occurred on 11/3/99 and
II. Wrongful or Unlawful detention that occurred between 16/4/99 and 17/4/99, separating the two claims for the purposes of the Public Officers Protection Act, it is clear that the tort of wrongful or unlawful detention which occurred between 16/6/99 and 17/6/99 is not up to three months apart from the 15/6/99 date of filing the Suit. That from 17/4/99 to 15/6/99 is 59 days which is barely two (2) months.
Counsel for the Respondent argues that the action for Wrongful or Unlawful detention was commenced within 3 months and it is not caught by the Public Officers Protection Act reference made to ANWUDIKE v. ADMINISTRATOR -GENERAL ANAMBRA STATE (1996) 1 NWLR (PT.460) 315 AT 333.
On the claim for negligence vis-a-vis the Public Officers Protection Act, Counsel to the Respondent conceded that the action was filed on 15/6/99 i.e. 4 days behind (as the act of negligence complained of occurred on 11/3/99. but contends that it appears now from decided cases that such a defence under Public officers Protection Act in order to avail a defendant need to be pleaded and raised specifically in his statement of Defence reference made to FORESTORY RESEARCH INSTITUTE OF NIGERIA v. GOLD (2007) ALL FWLR (PT.380) 1444 at 1466.
Further, learned counsel for the Respondent contends that the defence is not an issue of Jurisdiction as such it can be waived. Counsel referred to ARIORI V. ELEMO (1983) 1 SC 13; EZOMO V. OYAKIHRE (1985) 1 NWLR (PT.2) 195 at 202.
Counsel to the Respondent submits that another dent on the defence of limitation (Public Officers Protection Act is the representation made by the 1st Defendant/Appellant to the effect that they, the Defendants were not going to rely on any of the statutory defences available to them but were going to compensate the Plaintiff for injury inflicted on him and hence dissuaded the Plaintiff from calling in his lawyer who would have commenced a timeous action. That the same raises the issue of estoppels as provided under Section 151 of Evidence Act. That the Appellants cannot in the circumstances be heard to raise this issue of Public Officers protection Act and to reckoned from 16/4/99 when the 1st appellant reneged from his representation – reference made to MERCHANTILE BANK OF NIG. PLC v. FETECO NIG. LTD. (1998) 3 NWLR (PT.540) 143; UNIVERSITY OF IBADAN V. ADETOTO (1991) 4 (PT.185) 375 at 385.
Counsel to the Respondent argues that it is clear that the Appellants did not raise this issue of public officers protection Act anywhere in their defence, and even if they did they abandoned it by failing to substantiate same by oral evidence, learned Counsel for the Respondent urged the Court to resolve this issue affirmatively against the Appellants.
Issue No. 1 as formulated by the Appellants is whether the High Court of Imo State had Jurisdiction to hear and determine the action in view of Section 251(1) & (s) of the 1999 Constitution and Section (2) (a) of the Public Officers Protection Act Cap P41 Laws of the Federation of Nigeria.
In determining issue No. 1 it is not in doubt that the 1st Appellant is an employee of the 2nd Appellant which is an Agency of the Federal Government and the claims against then are for damages arising from the acts of 2nd Appellant and its agent the 1st Appellant.
In the instant appeal it is not in dispute that the 2nd Appellant, National Drug Law Enforcement Agency is a Federal Government Agency while the 1st Appellant is an employee of the 2nd Appellant; it also not disputed that the cause of action is a claim for damages for the alleged tortuous action of the Appellants. In the light, all these, therefore the action on hand came squarely within the provision of section 251(1)G) of the 1999 Constitution, this translate to mean that this action is within the exclusive Jurisdiction of the Federal High Court. In NATIONAL ELECTRIC POWER AUTHORTTY V. EDEGBARO & 15 ORS. (2003) FWLR (PT.139) 1556 at 1569. The Supreme Court Ogundare, JSC held thus;-
“A careful reading of paragraphs (Q) (r) and (s) reveals that the intention of the lawmakers was to take away the Jurisdiction of State High Court and confer same exclusively on the Federal High Court actions in which the federal Government or any of its Agencies is a party while paragraph (s) talked of actions for declarations or Injunctions, the provision extended this to actions for damages, Injunctions or specific performance. It did not say as the learned trial Judge with profound respect appears to read into it that action for damages, Injunction or specific performance against the Federal Government or its agencies could still come before a State High Court.
Further at page 1571 the learned JSC states:-
“From what I have said earlier in this Judgment the aim of paragraphs (Q) and (s) of subsection I of section 230 of the 1979 Constitution was to vest exclusive Jurisdiction in the Federal High Court in maters in which the Federal Government or any of its agents was a party. A State High Court would no longer have Jurisdiction in such matters notwithstanding the nature of the claim in the action”
In this appeal it is clear that from the parties involved and the nature of the claim in the action, it is certain that the Imo State High Court has no Jurisdiction whatsoever to entertain the claim of the Respondent as Jurisdiction in such matters is exclusively vested in the Federal High Court.
Based on my findings that the Imo State High Court lacks Jurisdiction to entertain the Respondent’s action before it, issue No. 1 is resolved -against the Respondent in favour of the Appellants.
As Jurisdiction is a very fundamental fact or that robs on the competence of a Court to hear and decide on a matter and the trial Court lacks Jurisdiction to entertain the Respondent’s Claim, it would be unnecessary to consider other issues canvass in this appeal as whatever transpired in trial Court is a nullity.
Consequently I find substance in this appeal which I hereby allow. I set aside the Judgment of the Imo State High Court delivered on 7/5/03. I strike out the Plaintiffs action against the Defendants instituted in the Imo State High Court. I make no order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I agree
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment just delivered by my learned brother JEGA ABDUL-KADIR JCA. I agree with the reasoning and conclusion. I also allow the appeal.
The central question in this appeal is whether the High Court of Imo State had jurisdiction to hear and determine the action in view of section 251 (1) (r) & (s) of the 1999 Constitution and section 2 (a) of the Public Office Protection Act Cap. P.41 Laws of the Federation of Nigeria.
The appellant in the instant case brought an action against a Federal Government Agency in the State High Court at a period, which is more than 3 months after the accrual of the cause of action.
On the first leg of the above question, the Supreme Court has-made it very clear in the case of National Electric Power Authority vs. Edegbero & 15 Ors. (supra) per Ogundare, JSC, at page 1569 that the provision of Section 251 (1) (q) (r) & (s) vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agencies is a party and that the State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.
There is no gainsaying that the 2nd appellant in this appeal, i.e the National Drug Law Enforcement Agency is an agency of the Federal Government of Nigeria and consequently the action was not maintainable in the High Court of Imo State.
Secondly, the 1st appellant in this case is a Public Officer and by virtue of the provision of Section (2) (a) of the Public officers Protection Act Cap. P.41 Laws of the Federation of Nigeria, an action against him must be brought not later than 3 months of the accrual of the cause of action.
Any action brought against a Public Officer after the stipulated limitation period is said to be statute barred and the effect also is that the court does not have any jurisdiction to entertain such an action. The main objective of the Public Officers (protection) Act Cap. p. 41 LFN 2004 is to protect Public Officers who have acted pursuant to the duties of their office from being harassed with stale claims. See Ibrahim vs. J.S.C. (1998) 14 NWLR (Pt.5B4) 1 (SC) Fajimolu vs. Unilorin (2007) 2 NWLR (Pt. 1017) 74 C.A.
In relation to this appeal, it is of note that the words “any person in Public Office” as stipulated in Section 2 (a) of the Public Officer (Protection) Act does not only refer to natural persons or persons sued in their personal names but extend to public bodies, artificial persons, institutions or persons sued by their official names or titles.
C. B. N. vs. Adedeji (2004) 1st NWLR (Pt.890) 226 CA.
In the instant case, apart from the fact that the suit was not entertainable before the Imo State High Court, both appellants are indeed public servants in the con of the provision of Section 2 (a) of the Public Officer (Protection) Act. For these reasons, and the fuller reasons contained in the lead judgment of my learned brother JEGA ABDULKADIR JCA. I also allow the appeal. I abide with the consequential Orders.
Appearances
Mr. J. O. MomoduFor Appellant
AND
Mr. O. C. EwurumFor Respondent
