PROGRESS SEA FOODS (NIG) LTD v. IBEDC & ANOR (2020)

PROGRESS SEA FOODS (NIG) LTD v. IBEDC & ANOR

(2020)LCN/15252(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/IB/234/2011

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

PROGRESS SEA FOODS NIGERIA LIMITED APPELANT(S)

And

IBADAN ELECTRICITY DISTRIBUTION COMPANY PLC 2. NIGERIAN ELECTRICITY LIABILITY MANAGEMENT COMPANY RESPONDENT(S)

RATIO

WHETHER OR NOT GROUNDS OF APPEAL MUST ARISE FROM THE DECISION APPEALED AGAINST AND MUST BE CONNECTED TO THE CONTROVERSY BETWEEN THE PARTIES

It is trite that the Grounds of Appeal are the pillars on which the entire appeal stands. It follows therefore that any challenge to the competence of a Ground of Appeal and the issues formulated thereon must be considered and resolved before going into the merits of the appeal.
It is the law that any Ground of Appeal shall arise from the decision appealed against and must be connected to the controversy between the parties. Any complaint that does not flow from the decision appealed against cannot be entertained by an Appellate Court. See ACHONU VS. OKUWOBI (2017) 14 NWLR (PT. 1584)142; OLONADE & ANOR VS. SOWEMIMO (2014) 14 NWLR (PT. 1428)472; IKWEKI & ORS VS. EBELE & ANOR (2005) 11 NWLR (PT. 936)397; SOGUNRO & ORS VS. YEKU & ORS (2017) 9 NWLR (PT. 1570)290 AND ODUTOLA HOLDINGS LTD & ORS VS. LADEJOBI & ORS (2006) 12 NWLR (PT. 994) 321. PER OJO, J.C.A.

WHETHER OR NOT PARTIES WILL BE ALLOWED TO CANVAS FRESH ISSUES ON APPEAL WITHOUT LEAVE OF COURT

WHAT IS A FEDERAL AGENCY?

A Federal Government agency has been held to include an agency subject to the control of the Federal Government and whose functions aim at affecting the policy of the Federal Government. See NIGERIAN REINSURANCE CORP VS. CUDJOE (2008) ALL FWLR (PT 414) 1455; NIPOST & ANOR. VS MOKWENYE (2014) LPELR- 24491; FAAN VS BI-COURTNEY LTD & ANOR. (2011) LPELR- 19742. PER OJO, J.C.A.

WHETHER OR NOT PROCEEDINGS CAN BE BROUGHT OUTSIDE THE TIME LIMITED BY STATUTE

The law is settled that where a statute provides a time limit for the institution of an action, no proceedings shall be brought outside the time limited/prescribed by such statue. Any action brought outside such time limit shall be time barred as the right of the Claimant to commence the action has been extinguished by operation of law. Such Claimants right of action has been removed and he is left with an empty cause of action. His right of action has lapsed by effluxion of time and no Court shall have jurisdiction to entertain his action as it has become statue barred. See IBRAHIM VS. JUDICIAL SERVICE COMMITTEE, KADUNA STATE & ANOR (1998) 14 NWLR (PT. 584)1; ATTORNEY-GENERAL, ADAMAWA STATE & ORS VS. ATTORNEY-GENERAL, FEDERATION (2014) 14 NWLR (PT. 1428) 515; LAFIA LOCAL GOVERNMENT VS. THE GOVERNOR, NASARAWA STATE & ORS (2012) 17 NWLR (PT. 1328) 94. PER OJO, J.C.A.

WHETHER OR NOT A PUBLIC OFFICER ACTING WITHIN HIS SCOPE OF OFFICE CAN BE SUED THREE MONTHS AFTER THE CAUSE OF ACTION AROSE

It is further settled that a Public Officer acting within the scope of his office cannot be sued three months after the cause of action arose. He may however be sued outside the limitation period of three months if at all times material to the commission of the act he acted outside the scope of his office or his statutory duty. In the case of AWOLOLA VS. GOVERNOR OF EKITI STATE (2019) 6 NWLR (PT. 1668) 247 AT 270, PARAS. F-H, the Supreme Court, per Galinje JSC held thus:
“Public Officers (Protection) Law is meant to protect public officers who act in good faith as it does not apply to acts done in abuse of office with no semblance of legal justification. Public Officers Protection Law is used as a shield and not as a sword in protecting actors of acts that are done in accordance with the Constitution and any other enactments, and it does not apply if it is established that the public officer had abused his position for purpose of acting maliciously. In that case, he has not acted bona fide and within the terms of the statutory or other legal authority. In such a state of facts he has abused his position for the purpose of doing the wrong thing, and the provision of the law will not apply to protect him.”PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Ogun State sitting at Otta, in the Otta Judicial Division delivered on the 30th day of June, 2011 wherein the Lower Court upheld the Preliminary Objection of the Respondents and went on to dismiss the Appellant’s Suit filed before it.

The Appellant vide a Writ of Summons filed on the 7th of September, 2010 at the Lower Court sought the following reliefs:
1) A declaration that the Defendants’ action of disconnecting the Claimant’s 1 MVA (1000 KVA) electric power transformer from the supply grid without default in payment of tariffs and without prior notice to the Claimant, thereby occasioning monumental pecuniary loss to the Claimant, is in breach of contract of approval and installation between the Claimant and the Defendants.
2) A declaration that the Defendants and their officials were statutorily negligent in disconnecting the Claimant’s 1 MVA (1000KVA) electric power transformer from the supply grid without default in payment of tariffs and without prior notice to the Claimant, thereby occasioning monumental pecuniary loss to the Claimant.
3) N100,000,000.00 (One Hundred Million Naira) special and general damages for breach of contract and negligence.
4) A mandatory Order directing the Defendants to reconnect the Claimant’s 1 MVA transformer to the supply grid and to return the vandalized electric cables carted away by the Defendants.
5) Cost of this litigation.

Upon being served with the originating processes, the Respondents entered a conditional appearance and went on to file their Statement of Defence as well as a Notice of Preliminary Objection.
The Grounds of the Objection are as follows:
1. (a) That the 1st Defendant is a Company or Enterprise in which the Federal Government of Nigeria has controlling shares or interest.
(b) The 2nd – 4th Defendants are Management Staff in the employment of the 1st defendant.
(c) The 5th Defendant is a distribution arm/unit of the 1st Defendant.
(d) The 1st Defendant being a state owned bureaucracy, it is only the Federal High Court that can adjudicate over the suit.
2. (a) The cause of action allegedly arose sometime in February 2010 and the Writ of Summons initiating this action is dated and was sealed on the 7th September, 2010.
b) The Defendants being persons within the meaning and contemplation of the Public Officer (Protection) Act, Cap. 379 Laws of the Federation of Nigeria 1990, the matter is statute barred.
See pages 19 – 20 of the Record of Appeal.

The Notice of Preliminary Objection was accompanied with an affidavit and a written address. The Appellant filed a counter affidavit with a written address. The objection was set down for hearing and duly heard. In a Ruling delivered on the 30th of June, 2011, the Lower Court upheld the objection.
It held as follows at page 66 of the Record:
“The negligence complained of in this case occurred sometime in February, 2010, this action was not filed before 7th of September, 2010, this is clearly outside the limitation period, the defendants being Public Officers are covered and protected by the Limitation Acts. I therefore resolve issue two in favour of the Defendants/Applicants.
The Preliminary Objection therefore succeeds and the Claimant’s case is dismissed.”

Dissatisfied with the Ruling of the Lower Court, the Appellant filed a Notice of Appeal against same on the 15th of July, 2011. It is pertinent to state at this stage that the action at the Lower Court was instituted against the Power Holding Company of Nigeria as 1st Defendant and Mr. Hussein Labo, Engineer Kayode Moyosade, Engineer Dele Adeola and Ibadan Electricity Distribution Company Plc. as 2nd – 5th Defendants respectively.

During the pendency of this appeal, the 1st Defendant was unbundled into various Distribution and Generation Companies. Pursuant to the provisions of the Electric Power Sector Reform Act, 2005, the Nigerian Electricity Liability Management Company Limited took over the assets, liabilities of the 1st Defendant. By an application filed in this court on the 22nd of September, 2017, the Appellant sought to discontinue the appeal against the 1st – 4th Defendants/Respondents and to join the Nigerian Electricity Liability Management Company as a Respondent. The said application was granted on the 18th of October, 2017, consequent upon which the Appellant amended its Notice of Appeal and parties filed fresh processes to reflect the names of the present Respondents.

The Amended Notice of Appeal with five Grounds of Appeal was filed on the 31st of October, 2017.

Parties filed and exchanged their briefs of Argument. The Appellant’s Brief of Argument settled by Oluropo Awoyele, Esq., filed on 7th October, 2019 was deemed as properly filed on the 3rd of March, 2020. The Amended Respondents’ Brief of Argument settled by Lukman Fagbemi, Esq., filed on 24th February, 2020 was deemed as properly filed on 3rd of March, 2020. The Appellant’s Reply Brief of Argument filed on 7th October, 2019 was deemed as properly filed on 3rd of March, 2020.

At the hearing of this Appeal on the 3rd of March 2020, Learned Counsel to the Appellant adopted the Appellant’s Brief of Argument and the Reply Brief as his oral arguments and urged us to allow this appeal.

For his part, Learned Counsel to the Respondents adopted his Brief of Argument and urged us to dismiss the appeal.

Learned Counsel to the Appellant formulated four issues for determination to wit:
(i) Whether the learned trial Judge was right when she arbitrarily declined jurisdiction and dismissed the Appellant’s case based on the notice of preliminary objection filed by the Respondents, wherein they claimed, albeit erroneously, that they are Federal Government Agencies, without recourse to the substantive suit. (Grounds 1 and 4 of the Appeal)
(ii) Whether the learned trial Judge was right when, having adjudged that the Respondents are Federal Government Agents, she therefore dismissed the case of the Appellant pursuant to Section 2(a) of the Public Officers (Protection) Act without recourse to the exceptions thereto (Ground 2 of the Appeal)
(iii) Whether the provisions of the 1999 Constitution (Sections 6(6)(b), 36(1) and 272(1) is not supreme to the provisions of the Section 2(a) of the Public Officers (Protection) Act (Ground 3 of the Appeal)
(iv) Whether a Notice of Preliminary Objection supported by affidavit evidence can be seen as valid and subsisting.

In the Respondents’ Brief of Argument, Learned Counsel to the Respondents raised a complaint against the competence of Grounds 2 and 5 of the appeal and the issues formulated thereon. He also distilled the following two (2) issues for the determination of this appeal:
1. Whether the learned trial Judge was right to hold that the Defendants before the Lower Court, now represented by the Respondents herein were Federal Government Agencies and Public Officers? (Grounds 1 and 4)
2. Whether considering the reliefs claimed by the Appellants and the facts as contained in the pleadings before the Lower Court, the learned trial Judge was right to have held that the Appellant’s action was statute barred? (Ground 2).

On the Complaint of the Respondents, on Grounds 2 and 5 of the Notice of Appeal and the issues formulated thereon, learned counsel to the Respondent argued that the said Grounds of Appeal did not emanate from the Ruling appealed against and as such issues 3 and 4 formulated thereon are incompetent. He relied on the cases of PLATEAU STATE GOVERNMENT VS. CREST HOTEL & GARDEN LTD (2012) LPELR- CA/J/57/2010; UMANAH VS. NDIC (2016) LPELR – SC; OSSAI VS. FRN (2013) WRN 7; ONUEGBU & ORS VS. GOV. IMO STATE & ORS (2015) LPELR- 25968 (CA); ONOWU VS. OGBOKO & ORS (2016) 1 CAR 167 AT 187 AND SHETTIMA VS. GONI (2012) 18 NWLR (PT. 1297)413.

Responding in his Reply Brief, Learned Counsel to the Appellant submitted the grounds of appeal complained about contain arguable grounds. He agreed there may be blunders in the drafting of the grounds but submitted such blunders should not overshadow the need to do substantial justice. He relied on the case of ADEKEYE VS. AKIN-OLUGBADE (1987) 2 NWLR (PT. 60)214.

It follows therefore that a complaint made vide a ground of appeal must be one that was made an issue before the Lower Court. The settled position of the law is that a party will not be allowed to canvass a fresh issue on appeal except with leave of Court. See IBRAHIM VS. LAWAL & ORS (2015) 17 NWLR (PT. 1489) 490; EZE VS. UNIVERSITY OF JOS (2017) 17 NWLR (PT. 1593) 1; MALAMI & ANOR VS. OHIKHUARE & ORS (2018) 4 NWLR (PT. 1610) 431 AND ADEOSUN VS. GOVERNOR OF EKITI STATE (2001) 8 NWLR (PT. 714)200.
The complaint in ground 3 of this appeal is that the provision of Section 2(a) of the Public Officers (Protection) Act impedes the constitutional right of access to Court contrary to Section 6(6)(b), 36(1) and 272(1) of the 1999 Constitution. Ground 5 is a challenge to the competence of the Notice of the Preliminary Objection before the lower Court. The gravamen of this complaint is that the objection being a challenge on points of law, there was no need for an affidavit in support. I have gone through the entire gamut of the record of proceedings before the Lower Court and I find that there is nowhere the complaints raised in Ground 3 and 5 was placed before the lower Court. The issues contained therein are fresh issues for which no leave was sought and I so hold.
Grounds 3 and 4 formulated thereon are incompetent and are accordingly struck out.

Now to the substantive appeal, I am of the view that the issues formulated by the Respondents are sufficient in the determination of this appeal and I shall resolve it thereon. For ease of reference the issues are reproduced below:
1. Whether the learned trial Judge was right to hold that the Defendants before the lower Court, now represented by the Respondents herein, were Federal Government Agencies and Public Officers?” (Grounds 1 and 4)
2. Whether considering the reliefs claimed by the Appellant and the facts as contained in the pleadings before the Lower Court, the learned trial Judge was right to have held that the Appellant’s action was statute barred.”

ISSUE 1
Whether the learned trial Judge was right to hold that the Defendants before the lower Court, now represented by the Respondents herein, were Federal Government Agencies and Public Officers.
(Grounds 1 and 4)

Learned Counsel to the Appellant in arguing this issue submitted that the original 1st respondent, Power Holding Company of Nigeria was not a Federal Government Agency but a Public Limited Liability Company duly registered under the Companies and Allied Matters Act. He urged us to hold that the learned trial judge erred when he held that the Respondents were agencies of the Federal Government of Nigeria.

For his part, Learned Counsel to the respondents argued that because the Federal Government held 100% controlling shares in the original 1st Respondent it was an agent of the Federal Government. He craved in aid of his submission the cases of NRC VS. CUDJOE (2008) 10 NWLR (PT. 1095) 329 AT 356-357, PARAS. B-B; ADEKOYE VS. N.S.P.M.C. LTD (2009) 5 NWLR (PT. 1134)322 and urged us to hold the Lower Court was right when it held that the Power Holding Company and the instant 1st Respondent are Federal Government Agencies and their staff were Public Officers.

In dismissing the Appellant’s case before it, the learned trial judge held inter alia at pages 64 – 65 of the record as follows:
“The above provision shows that the staff of the Power Holding Company shall continue to enjoy the status which they enjoy as staff of the authority i.e. they continue to enjoy the status of being public officers which they enjoyed under NEPA. It follows that the 2nd-3rd Defendants are public officers as defined by Section 318(1) of the 1999 Constitution of the Federal Republic of Nigeria, the 5th Defendant is a subsidiary holding of the 1st Defendant, this was admitted by the Claimant in paragraph 6 of its statement of claim and it thus enjoy the same status of being a Federal Government Agency as the 1st Defendant.”

I note that the original 1st Defendant/Respondent is the Power Holding Company of Nigeria. The present 1st Respondent, Ibadan Electricity Distribution Company Plc was the 5th Defendant before the lower Court with the National Electric Power Authority (NEPA) as its predecessor in office
Section 5(3)(a) of the Electric Power Sector Reform Act provides as follows:
“3. Until such time as conditions of service are drawn by the initial holding company or the Commission, as the case may be:
(a) The terms and conditions of service applicable to employees of the authority shall continue to apply to every person transferred to the initial holding company or to the commission as if every such person were still in the service of the authority.”
It is evident from the above provision that the intention of the law maker is that the employees of the original 1st Defendant/Respondent i.e. the National Electric Power Authority shall continue to enjoy the status they had when they were its employees. I cannot fault the findings of the trial judge at pages 64 – 65 of the record quoted above.
It is further the argument of learned counsel to the Appellant that Section 2(a) of the Public Officers (Protection) Act is applicable to only people holding any of the offices specified in Part 2 of the Fifth Schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended). This schedule is clearly headed “Public Officers for the Purpose of Code of Conduct”. It is therefore not in doubt that the said provision is for the purpose of identifying public officers to whom the code of conduct applies. Interpreting the said provision, the Supreme Court per Uwaifo, JSC in the case of FEDERAL MORTGAGE BANK OF NIGERIA VS. P.N. OLLOH (2002) 9 NWLR (PT. 773)475 held thus:
“It has been decided by this Court in OKOMU OIL PALM CO. LTD. VS. ISERHIENRHIEN (2001) 6 NWLR (PT. 710) 660; (2001) FWLR (PT.45) 670; (2001) 85 LRCN 873, that the definition therein, read along with the Fifth Schedule to that Constitution, is essentially for the purpose of the Code of Conduct for public officers; that is to say, to specify by definition who is a public officer to whom the Code of Conduct applies. It does not imply that an establishment in which such public officers are employed is a Federal Government body or an agency of the Government as learned counsel for the appellant’s contention would seem to suggest. It has been decided by this court in OKOMU OIL PALM CO. LTD. VS. ISERHIENRHIEN (2001) 6NWLR (PT. 710) 660; (2001) FWLR (PT.45) 670; (2001) 85 LRCN 873, that the definition therein, read along with the Fifth Schedule to that Constitution, is essentially for the purpose of the Code of Conduct for public officers; that is to say, to specify by definition who is a public officer to whom the Code of Conduct applies. It does not imply that an establishment in which such public officers are employed is a Federal Government body or an agency of the Government as learned counsel for the appellant’s contention would seem to suggest.”
A Federal Government agency has been held to include an agency subject to the control of the Federal Government and whose functions aim at affecting the policy of the Federal Government. See NIGERIAN REINSURANCE CORP VS. CUDJOE (2008) ALL FWLR (PT 414) 1455; NIPOST & ANOR. VS MOKWENYE (2014) LPELR- 24491; FAAN VS BI-COURTNEY LTD & ANOR. (2011) LPELR- 19742.
Sections 1 and 2 of the Electric Power Sector Reform Act provides as follows:
“1. The National Council on Privatization shall, not later than six months after the coming into force of this Act, take such steps as are necessary under the Companies and Allied Matters Act to incorporate a company limited by shares, which shall be the initial holding company for the assets and liabilities of the Authority.
2. The shares of the initial holding company on its incorporation shall be held by the Ministry of Finance incorporated and Bureau of Public enterprises in the name of and on behalf of the Federal Government of Nigeria.

From the above provision, it is clear that the Federal Government of Nigeria gave the National Council on Privatization power to incorporate a Company Limited by Shares to take over the assets and liabilities of the National Electric Power Authority (N.E.P.A). The emergent company was the Power Holding Company of Nigeria, the original 1st defendant. Its shares were held by the Federal Ministry of Finance Incorporated and the Bureau of Public Enterprises. It is a Company whose equity was owned by the Federal Government of Nigeria. It is a Federal Agency and I so hold. Its employees were in the Public Service of the Federation and are Public Servants. In the light of all of the above, I answer Issue 1 in the affirmative and resolve it in favour of the Respondents.

ISSUE NO. 2
“Whether considering the reliefs claimed by the Appellant and the facts as contained in the pleadings before the Lower Court, the learned trial Judge was right to have held that the Appellant’s action was statute barred.”

Learned Counsel to the Appellant argued that the Public Officers (Protection) Act is not applicable to this case as it falls within the exception in the Act. He submitted there was a contractual relationship between the Appellant and the Respondents and since the Act is not applicable to contract cases it would not be applicable. He relied on the cases CBN VS. ADEDEJI (2005) 26 WRN 38 AT 46; NPA VS CONSTRUZIONI GENRALI FARSUPRA COGEFAR SPA & ANOR (1974) 12 S.C. 81; AIYELABEGAN VS. LOCAL GOVERNMENT SERVICE COMMISSION ILORIN, KWARA STATE (2009) 22 WRN 108 AT 122.

He submitted it is apparent the Appellant entered into a contract with the Respondents for the supply of Electricity. He went on to submit that the Respondents acted malafide and would therefore not enjoy the protection of the Act. He relied on the cases of OKON VS. NIGERIAN NAVY & 2 ORS (2007) 25 WRN 46 AT 52; OFFOBOCHE VS. OGOJA LOCAL GOVERNMENT (2001) 36 WRN 1.

He urged us to dismiss this appeal and hold that the Respondent acted outside their lawful duties.

For his part, Learned Counsel to the Respondents submitted that the action filed by the Appellant run foul of the Public Officers Protection Act as it was filed after the prescribed period of three months provided for by the Act.

He relied on the cases of PDP VS. APC & ORS (2015) LPELR- 25704 (CA); AIYETAN VS. THE NIGERIAN INSTITUTE OF OIL PALM RESEARCH (1987) LPELR-275 (SC); (1987) NWLR PT. 59)48; RAHAMANIYYA UNITED NIG LTD VS. MINISTRY FOR FEDERAL CAPITAL TERRITORY & ORS (2008) LPELR- 8391(CA); VERNER VS. FEDERAL UNIVERSITY OF TECHNOLOGY, YOLA (2017) LPELR- 43001 (CA); IBRAHIM VS. LAWAL & ORS (2015) LPELR- 24736 (SC).

Section 2(a) of Public Officers Protection Act 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 provision shall have effect-
Limitation of time:
(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.”
The law is settled that where a statute provides a time limit for the institution of an action, no proceedings shall be brought outside the time limited/prescribed by such statue. Any action brought outside such time limit shall be time barred as the right of the Claimant to commence the action has been extinguished by operation of law. Such Claimants right of action has been removed and he is left with an empty cause of action. His right of action has lapsed by effluxion of time and no Court shall have jurisdiction to entertain his action as it has become statue barred. See IBRAHIM VS. JUDICIAL SERVICE COMMITTEE, KADUNA STATE & ANOR (1998) 14 NWLR (PT. 584)1; ATTORNEY-GENERAL, ADAMAWA STATE & ORS VS. ATTORNEY-GENERAL, FEDERATION (2014) 14 NWLR (PT. 1428) 515; LAFIA LOCAL GOVERNMENT VS. THE GOVERNOR, NASARAWA STATE & ORS (2012) 17 NWLR (PT. 1328) 94.
It is further settled that a Public Officer acting within the scope of his office cannot be sued three months after the cause of action arose. He may however be sued outside the limitation period of three months if at all times material to the commission of the act he acted outside the scope of his office or his statutory duty. In the case of AWOLOLA VS. GOVERNOR OF EKITI STATE (2019) 6 NWLR (PT. 1668) 247 AT 270, PARAS. F-H, the Supreme Court, per Galinje JSC held thus:
“Public Officers (Protection) Law is meant to protect public officers who act in good faith as it does not apply to acts done in abuse of office with no semblance of legal justification. Public Officers Protection Law is used as a shield and not as a sword in protecting actors of acts that are done in accordance with the Constitution and any other enactments, and it does not apply if it is established that the public officer had abused his position for purpose of acting maliciously. In that case, he has not acted bona fide and within the terms of the statutory or other legal authority. In such a state of facts he has abused his position for the purpose of doing the wrong thing, and the provision of the law will not apply to protect him.”
The above position accords with the provision of Paragraph 9 of the Fifth Schedule to the 1999 Constitution of the Federal Republic of Nigeria which provides thus:
“A public officer shall not do or direct to be done, in abuse of his office, any arbitrary act prejudicial to the rights of any other person knowing that such act is unlawful or contrary to any government policy.”
A Public Officer is thus duty bound to ensure that he does not act in a way that is prejudicial to the right of any person. He has a duty not to abuse his office and must exercise due diligence in the execution of his duties so as not to do anything contrary to government policy. Where a public officer acts outside the scope of his authority, the defence of limitation of time under Section 2(a) of the Public Officers Protection Act will not avail him.
From the reliefs claimed by the Appellant in the Writ of Summons filed at the Lower Court and the averments in the Statement of Claim particularly Paragraphs 16 to 20 thereof it is not in doubt that the complain of the Appellant for which he sought redress is on the way and manner the Respondents disconnected electricity supply to its premises without notice despite the fact that it paid its tariffs as at when due.
Learned Counsel to the Appellant in the Appellant’s Brief of Argument argued that the action of the Respondents was contrary to the provisions of the Nigerian Electricity Regulatory Commission Connection and Disconnection Procedures for Electricity Service, 2007.
The Nigerian Electricity Regulatory Commission Connection and Disconnection Procedures for Electricity Services, 2007 was published in the Federal Republic of Nigeria Official Gazette Vol. 94, No. 103 of 24th December, 2007.
Paragraph 5 of the said regulation makes provision for the procedure to be followed by the commission in disconnecting a customer’s electric power supply.
It reads thus:
“5(1) A Distribution Company may only disconnect supply to a customer’s address when the customer has not paid the amount correctly billed for that supply address by the relevant payment date:
PROVIDED that-
(a) payment date is clearly shown on the bill;
(b) payment date is at least 10 working days from the date of delivery of the bill to the supply address or a delivery address provided by the customer, which is acceptable to the distribution company;
(c) payment date has not been superseded by a subsequent payment date issued to the same customer for the same supply address;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(d) period between the payment date and the date of disconnection is not less than 3 months;
(e) Distribution Company has verified from its record that the bill has not been paid; and
(f) Distribution Company has given the customer a written warning that the electricity supply shall be disconnected if payment is not made by the payment date and the warning contains:
(i) The date of its delivery to the supply address or any other address provided by the customer “and”
(ii) A telephone number and or address acceptable to the distribution company, where the customer can request assistance for paying the outstanding bill.
It is clear from the above provision that the electricity distribution company cannot legitimately disconnect electricity supply from the premises of a customer who has not defaulted in the payment of electricity bill. Paragraph 6 of the Regulation states the conditions when the Respondent may disconnect electricity supply to the premises of a customer. It includes where the customer is connected to its network illegally, where it considers the installation to be dangerous to the health and/or integrity of the Network or where the customer’s meter located in the premises cannot be assessed for reading for a period of three consecutive bills. It further provides that whenever a Distribution Company decides to disconnect electricity supply to a customer’s premises, it shall leave a written Notice of Disconnection advising the Customer of the following:
(a) The date and time of disconnection;
(b) The reason for disconnection;
(c) The actions to be taken by the customer to have the electricity supply reconnected; and
(d) The contact address and telephone number of the Distribution Company.
From all of the foregoing, it follows that it is mandatory for a Distribution Company such as the 1st Respondent to issue notice prior to disconnecting a customer’s electric power supply and leave a disconnection notice to that effect at the premises.
The case of the Appellant ex-facie its Statement of Claim is that the Respondents failed to comply with the statutory procedures for disconnecting before disconnecting its electricity power supply. It is their case that the Respondents acted outside the scope of their statutory duties.

To emphasize the seriousness of compliance with the Regulation, the Nigerian Electricity Regulatory Commissions’ Connection and Disconnection Procedure for Electricity Service, 2007 provides sanctions for non-compliance with the procedure expressly stated therein. Paragraph 11 of the regulation (supra) provide as follows:
“11. Any Distribution Company which disconnects electricity supply to a customer’s premises in violation of this regulation commits an offence and is liable on conviction to pay the customer a penalty as stipulated in the table below for each, or part of a day that the supply is wrongfully disconnected.
………
The instant Respondents who are bound by the provisions of the Regulation (supra) cannot hide under Section 2(a) of the Public Officers (Protection) Act to escape liability where they fail to comply with the laid down statutory procedures for disconnection of electricity supply.
Where the Respondents fail to comply with the procedure before disconnection, they have clearly acted outside the scope of their authority and the provisions of Section 2(a) of the Public Officers Protection Act would not avail them.

The law is settled that in the determination of whether or not there exists a valid cause of action, the Court would consider only the Writ of Summons and Statement of claim.
The case of the Appellant as I stated earlier is that the Respondents did not comply with the Regulation before disconnecting its electricity supply. The provision of Section 2(a) of the Public Officers Protection would therefore not apply and I so hold.

The Appellant further contend that its case is based on a breach of contract and that being so, the provisions of the Public Officers Protection Act would not apply. Its case is that it sought permission to purchase and install an electric transformer from the respondents for which it got a tentative approval and was connected to the supply grid. By this, the Respondents had a contractual obligation to supply electricity to the Appellants premises for which the Appellant paid N2 Million Monthly as consideration.
The breach complained about is for disconnection of electric power supply to its premises without notice which the Appellant allege occasioned damages to it. It is further my firm view that the issue of alleged breach of contract to supply electricity to the Appellant’s premises brings the Suit of the Appellant within the exceptions contemplated under Section 2(a) of the Public Officers (Protection) Act and I so hold.
My conclusion under this issue is that the Lower Court was in error when it held that the Appellant’s action was statute barred by virtue of Section 2(a) of the Public Officers Protection Act and I so hold.
Issue No. 2 is resolved in favour of the Appellant.

This appeal is allowed in part. The resultant effect is that the decision of the Lower Court in Suit Nos. HCT/204/2010 invoking the provision of Section 2(a) of the Public Officers Protection Act to hold that the suit filed by the Appellant is statute barred is hereby set aside.

I hereby order that the case be remitted back to the Chief Judge of Ogun State for re-assignment to another judge for hearing on the merit.
I award costs of N100,000 in favour of the Appellant.

HARUNA SIMON TSAMMANI, J.C.A.: I read a draft of the judgment just delivered by my learned brother Folasade Ayodeji Ojo, JCA.

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It is apparent from the averment in the Appellant’s Statement of Claim that the claim is predicated on a breach of contract. In the case of Salako v. L.E.D.B. & Anor 1953 20 NLR 169, it was held that, the provisions of Section 2 of the Public Officers Protection Act does not apply in cases of, inter alia, breach of contract. See also Alapiki v. Governor of Rivers State (1991) 8 NWLR (Pt. 211) 575 at 602; F.G.N. v. Zebra Energy Ltd (2002) 18 NWLR (pt.798) 162 at 197; Oduko v. Government of Ebonyi State (2004) 13 NWLR (pt. 891) 481; Osun State Government v. Dalami (Nig) Ltd (2007) 9 NWLR (pt.1038) 66 and Bakare v. Nigeria Railway crop (2007) 17 NWLR (pt1064) 606. It means therefore that, where a Public Authority is concerned with the execution of statutory duty or authority, as in the instant case, the breach of such duty or authority is not protected by the Public Officers Protection Act (supra). Thus in Roe Ltd v. U.N.N. (2018) 6 NWLR (PT 1616) 420, My Lord, Galumje, JSC held as follows:
“…I entirely agree with Learned Counsel for the Appellant that the Public Officers Protection Act does not apply to cases of breach of contract for work done or recovery of debt. This Court in F.G.N. vs. Zebra Energy Ltd (2002) 18 NWLR (pt.798) 162 at 196 held:
“The Public Officers Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done.”
In the instant case, the relationship between the Appellant and the Respondents was based on contract for the supply of electricity power to the Appellant’s business premises. That being so, the Public Officers Protection Act (supra) would not apply.

It is for the above reason and the fuller reason(s) marshalled out in the lead judgment that I agreed that this appeal be allowed in part, I also abide by the consequential order made by my learned brother.

NONYEREM OKORONKWO, J.C.A.: I have carefully read the judgment of my Lord Folasade Ayodeji Ojo JCA on this appeal.
In part of the final summation my Lord said thus:-
My conclusion under this issue is that the Lower Court was in error when it held that the Appellant’s action was statute barred by virtue of Section 2 (a) of the Public Officers Protection Act and I so hold.”

I agree with the conclusion that the Lower Court was in error that action was statute barred.
I adopt the orders made.

Appearances:

OLUROPO AWOYELE For Appellant(s)

OLADIPUPO A. IGE For Respondent(s)