SHARIKA & SONS LTD V. THE GOVERNOR OF KADUNA STATE & ORS
(2013)LCN/5937(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of February, 2013
CA/K/358/2005
RATIO
“In Asogwa v. Chukwu (2003) 4 NWLR (pt. 811) 540 at 551 the Court defined a Public Officer as:- “The term Public Officer referred to in the interpretation Act can only be described to be referable to those enjoying employments with statutory flavour as reflected in section 318 (1) of the 1999 Constitution”. Per ABOKI J.C.A.
“In the Federal Mortgage Bank of Nigeria v. Olloh (2002) 9 NWLR (pt. 773) page 475 the Supreme Court held that: “It has been decided by this Court in Okomu Oil Palm Co. Ltd v. Isierluierluien (2001) 6 NWLR (pt 710) 660, (2002) FWLR (pt. 45) 670, (2001) 85 LRCN 873, that the definition therein read along with the 5th 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”. On whether the Attorney-General i.e. the 2nd respondent is a Public Officer or not, the Supreme Court in Ibrahim v. The Governor of Kaduna State (1998) 12 S.C.N.J 255 at 272 held that:- “With the greatest respect, I cannot pretend that I fully appreciate learned counsel’s contention in this area of his argument. In the first place although the title of the relevant law implies a law to protect “public officers” and not “Public offices”, it is beyond argument that government positions such as Attorney-General, Permanent Secretary Inspector General of Police e.t.c. although Public Offices” they are none – the – less “Public officers” in law. I cannot, with respect, accept that the Attorney-General, Permanent Secretary or the Inspector General is not a “Public Officer” as known to Law” Per ABOKI J.C.A.
“In Chief John Eze v. Dr. Cosmas I. Okechukwu (1998) 5 NWLR (pt. 548) 43 at 73, the Court opined that: “A public officer, in my view is a holder of a public office. He is in the public sector of the economy as distinct and separate from the private sector. He is entitled to some remuneration from the public revenue or treasury. He has some authority conferred on him by law. He also has a fixed tenure of office which must have some permanency or continuity. Above all, a public officer has the power to exercise some amount of sovereign authority or function of government. The Sovereign authority may be great or enormous. It may be little or small. There should be that element of sovereign authority. So too the exercise of government function in lieu of sovereign authority. There should be that element of government function. All the above characteristics must be present to vest in a person the status of a Public Officer. In other words, they must co-exist in person”. In Governor of Ebonyi State & ors v. Isuama (2004) 6 NWLR (pt. 870) page 511 at 516, the Court of Appeal in the course of interpreting section 318 of the 1999 Constitution of the Federal Republic of Nigeria vis-?-vis determining the issue of whether the Governor of Ebonyi State was a Public Officer opined that:- “In the instant case, neither the Governor of Ebonyi State nor Ebonyi State House of Assembly and the National Judicial Council can be considered as a Public Officers”. Similarly in Asogwa v. Chukwu (2003) 4 NWLR (pt. 811) 540 at 550 – 551, the Court held that:- “In other words, the term Public Officer should only relate to the holders of the Offices as reflected only in section 318(1) of the 1999 Constitution.” Per ABOKI J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
HABEEB A. ABIRU Justice of The Court of Appeal of Nigeria
Between
SHARIKA & SONS LTD. Appellant(s)
AND
1. THE GOVERNOR OF KADUNA STATE
2. THE ATTORNEY GENERAL OF KADUNA STATE
3. KADUNA STATE URBAN PLANNING & DEVELOPMENT
4. KADUNA STATE BUREAU FOR LANDS SURVEYS & COUNTRY
5. MAJOR ABUBAKAR UMAR
6. ALHAJI YAU KURA
7. ALHAJI DAHIRU MANGAL
8. GAMBO SHUIABU
9. ALIYU HALILU
10. IBRAHIM LAWAL IBRAHIM
11. DR. HAKEEM BABA-AHMED Respondent(s)
ABDU ABOKI JCA (Delivering the Leading Judgment): This appeal is against the decision of the High Court, Kaduna State delivered on the 17th day of October, 2005, by A. A. Othman J.
The facts that gave rise to this appeal are that the plaintiff (hereinafter called the appellant) instituted an action before the lower Court challenging the purported revocation of the piece of land located along western bye-pass near Mando road junction that was allocated to it in 1987.
During the pendency of the said action before the lower Court, learned counsel to the 1st-4th respondent’s in this appeal filed an application challenging the competency of the said action.
The lower Court in a considered judgment dismissed the said action against all the respondents in this appeal for being statute barred.
Aggrieved by the said decision, the appellant filed a notice of appeal containing 5 grounds of appeal.
Briefs of argument were in accordance with the relevant rules of this Court duly filed and exchanged and at the hearing of this appeal the parties duly adopted and relied on the arguments and submissions contained in their respective briefs.
The appellant’s brief of argument dated and filed on 20/12/2005 was settled by Garbiel Didam while 1st -4th respondents brief of argument dated 28/2/2006 and filed on 01/3/2006 was settled by Yunus Ustaz Usman (SAN) and 8th – 11th respondents’ brief of argument dated and filed on 26/3/2009 was settled by I. B. Odigie.
In the appellant’s brief of argument, the following issues for determination were raised :-
“i. Whether the Provisions of the Public Officers Protection Act are applicable in favour of the 1st – 4th respondents and moreso considering the nature of the dispute which is Land Recovery.
ii. Whether the trial Court was right in dismissing the suit it did not hear on the merit and also dismissing same in favour of the 11th respondents who are not public officers and who raise no preliminary objection to the competency of the suit.”
Learned counsel to the 1st -4th respondents in their joint brief of argument formulated the following issues for determination to wit:
“(i). Whether the Provisions of the Public Officers Protection Act are applicable in favour of the 1st -4th respondents (Grounds 1, 2 and 3 of the Appeal).
(ii). Whether the trial Court was right in dismissing the suit in its entirety (Grounds 4 and 5 of the Appeal).
Learned counsel to the 8th – 11th respondents formulated the following issues for determination:-
“1. Whether the provisions of Public Officers Protection Act are applicable in favour of the 1st-4th respondent’s.
2. Whether the Trial Court was right in dismissing the suit in it entirety”.
Except for the mode of couching, the parties formulated identical issues for determination. I adopt issue No. 2 formulated by the learned counsel to the 1st – 4th respondents as well as the 8th – 11th respondents in the consideration of this appeal to wit:-
“Whether the trial Court was right in dismissing the suit in its entirety?”
On the said issue, learned counsel to the appellant contended in his brief of argument that the lower Court erred in law when it relied on the Provisions of the Public Officers Protection Act as neither the 1st – 2nd respondents as well as the 5th – 11th respondents are Public Officers.
He argued that the lower Court ought not to have applied the Provision of the Public Officers Protection Act in view of the fact that the main subject matter of the dispute before the lower Court revolves around the recovery of land.
Learned counsel referred the Court to pages 28-48, 46-61 of the record and the cases of
Hon. Justice Mamman Kolo v. A. G. of the Federation (2003) 10 NWLR (pt. 829) 602 at 624,
Chief John Eze v. Dr. Cosmas I. Okechukwu (1998) 5 NWLR (pt. 548) 43 at 73,
Mohammed Garba v. Umaru Shuaibu (2001) 8 NWLR (pt. 716) 730 at 744,
B. A Shitta-Bey v. A. G of the Federation (1998) 10 NWLR (pt. 570) 392 at 416,
The Registered Trustees P.P.F.N v. Dr. Jimmy Shogbola (2004) 11 NWLR (pt. 883) 1 at 20,
Hon. Charles Ogbonnia Asogwa v. The right Hon. Abel Chukwu (2003) 4 NWLR (pt. 811) 540 at 574,
Governor of Ebonyi State v. Hon. Justice E. I. Isuama (2004) 6 NWLR (pt. 870) 511 at 528,
Alhaji Musa Abubakar v. The Executive Governor, Gombe State (2002) 17 NWLR (pt. 797) 533 at 559,
Alhaji Abbas Njidda Tafida v. Alhaji Sa’adu Abubakar (1992) 3 NWLR (pt. 230) 511 at 523,
Felix Onyejekwe v. The Nigerian Police Council (1996) 7 NWLR (pt. 463) 704 at 712, sections 1, 18(1) of the Interpretation Act, and sections 318, 209 of the 1999 constitution.
Learned counsel to the appellant also opined that the Provisions of the Public Officers Protection Act is inapplicable were the subject matter of the dispute borders around recovery of land.
He referred the Court to the cases of
Peter I. Okeke v. Alhaji Baba (2000) 2 NWLR (pt, 650) 644 at 653 and
The Federal Government of Nigeria v. Zebra Energy Ltd (2002) 18 NWLR (pt. 798) 162 at 196.
In conclusion, learned counsel to the appellant urged the Court to set aside the decision of the High Court and consequently order that the said suit be heard by another judge of the High Court of Kaduna State.
Learned counsel to the 1st – 4th respondents maintained that the lower Court was not in error when it held that both the 1st and 2nd respondents in this appeal were Public Officers.
He referred the Court to the cases of
Chief John Eze v. L. F. Cosmas I. Okechukwu (1998) 5 NWLR (pt. 548) 43 at 73,
Ibrahim v. The Governor of Kaduna State (1998) 12 S.C.N.J 255 at 272-273,
Wilson v. Attorney General of Bendel State & ors (1985) 16 NSCC (pt. 1) page 191 at 204 -207,
Nafiu Rabiu v. The State (1982) 12 NSCC 29 at 301,
Chambers English Dictionary 7th edition (published by W & R Chambers Ltd, 43 – 45) at 721, 5th schedule to the 1999 constitution of the Federal Republic of Nigeria, section 18 of the Interpretation Act.
Learned counsel contended that the lower Court was not in error when it relied on the provision of the Public Officers (Protection) Act to dismiss the case that was filed before it by the appellant.
Learned counsel to the 1st – 4th respondent referred the Court to the cases of Egbe v. Adefarasin (1987) 1 SCJ 1 at 17, Cookey v. Fombo (2005) 15 NWLR (pt. 947) 182 at 207 – 208,
Arch. Victor S. Daudu v. University of Agriculture, Makurdi (2002) 17 NWLR (pt. 796) 362.
In conclusion learned counsel to the 1st – 4th respondent urged the Court to dismiss this appeal.
Learned counsel to the 8th – 11th respondents opined that the lower Court was not in error when it upheld the preliminary objection that was filed by the learned counsel to the 1st – 4th respondents and accordingly dismissed the action that was filed against all the respondents in this appeal.
Learned counsel referred the Court to the cases of
Emiantor v. NNPC (1999) 9 SCNJ 52 at 84 and
Ebiogb v. NNPC (1994) 18 A LRCN 54 at 64.
He contended that since the action against the 1st – 4th respondents had been dismissed by the lower Court for being statute barred, the lower Court was not in error when it dismissed the said action on its entirety due to the fact that the said action cannot be determined effectually and completely against the other respondents without the presence of the 1st – 4th respondents who were necessary parties to the said action.
In support of his submission the Court was referred to the cases of
New Nigeria Newspaper v. Ademola (1997) 6 NWLR (pt. 507) 76 at 33D per Ogebe JCA,
S. T. I. C v. M. C. F. T (2007) 11 WRN 167 at 179,
Tafida v. Bafarawa (1999) 4 NWLR (pt. 597) 70,
Bawa v. Ita G. M (2007) 8 WRN 53 at 62,
Egbuono v. Borno R. T. C (1997) 54 LRCN 2736 at 2755,
Tukur v. Governor Gongola State (1989) 4 NWLR (pt. 117) 517 at 548,
Tukur v. Gov. Gongola State (1999) 6 NWLR (pt. 510) 549,
AGF v. ANPP (2004) 1 MJSC 1 at 23 and
Akeredolu v. Akinremi (1986) 2 NWLR (pt. 25).
In conclusion, learned counsel to the 8th – 11th respondents urged the Court to resolve this issue against the appellant.
In Asogwa v. Chukwu (2003) 4 NWLR (pt. 811) 540 at 551 the Court defined a Public Officer as:-
“The term Public Officer referred to in the interpretation Act can only be described to be referable to those enjoying employments with statutory flavour as reflected in section 318 (1) of the 1999 Constitution”.
Section 318 of the 1999 Constitution of the Federal Republic of Nigeria provide that:-
“Public service of a State” means the service of the State in any capacity in respect of the Government of the State and includes service as
(a). Clerk or other staff of the House of Assembly;
(b). Member of staff of the High Court, the Sharia Court of Appeal or other Courts established for a State by this Constitution or by a law of a House of Assembly;
(c). member or staff of any Commission or authority established for the State by this constitution or by a law of a House of Assembly;
(d). Staff of any local government council;
(e). Staff of any Statutory Corporation established by a law of a House of Assembly;
(f). Staff of any educational institution established of financed principally by a government of a State; and
(g). Staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest”.
In Chief John Eze v. Dr. Cosmas I. Okechukwu (1998) 5 NWLR (pt. 548) 43 at 73, the Court opined that:
“A public officer, in my view is a holder of a public office. He is in the public sector of the economy as distinct and separate from the private sector. He is entitled to some remuneration from the public revenue or treasury. He has some authority conferred on him by law. He also has a fixed tenure of office which must have some permanency or continuity. Above all, a public officer has the power to exercise some amount of sovereign authority or function of government. The Sovereign authority may be great or enormous. It may be little or small. There should be that element of sovereign authority. So too the exercise of government function in lieu of sovereign authority. There should be that element of government function. All the above characteristics must be present to vest in a person the status of a Public Officer. In other words, they must co-exist in person”.
In Governor of Ebonyi State & ors v. Isuama (2004) 6 NWLR (pt. 870) page 511 at 516, the Court of Appeal in the course of interpreting section 318 of the 1999 Constitution of the Federal Republic of Nigeria vis-Ã -vis determining the issue of whether the Governor of Ebonyi State was a Public Officer opined that:-
“In the instant case, neither the Governor of Ebonyi State nor Ebonyi State House of Assembly and the National Judicial Council can be considered as a Public Officers”.
Similarly in Asogwa v. Chukwu (2003) 4 NWLR (pt. 811) 540 at 550 – 551, the Court held that:-
“In other words, the term Public Officer should only relate to the holders of the Offices as reflected only in section 318(1) of the 1999 Constitution.”
It is evidently clear from these authorities that the 1st respondent does not fall within the purview of a Public Officer as contemplated by section 318 of the 1999 Constitution of the Federal Republic of Nigeria.
In the Federal Mortgage Bank of Nigeria v. Olloh (2002) 9 NWLR (pt. 773) page 475 the Supreme Court held that:
“It has been decided by this Court in Okomu Oil Palm Co. Ltd v. Isierluierluien (2001) 6 NWLR (pt 710) 660, (2002) FWLR (pt. 45) 670, (2001) 85 LRCN 873, that the definition therein read along with the 5th 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”.
On whether the Attorney-General i.e. the 2nd respondent is a Public Officer or not, the Supreme Court in Ibrahim v. The Governor of Kaduna State (1998) 12 S.C.N.J 255 at 272 held that:-
“With the greatest respect, I cannot pretend that I fully appreciate learned counsel’s contention in this area of his argument. In the first place although the title of the relevant law implies a law to protect “public officers” and not “Public offices”, it is beyond argument that government positions such as Attorney-General, Permanent Secretary Inspector General of Police e.t.c. although Public Offices” they are none – the – less “Public officers” in law. I cannot, with respect, accept that the Attorney-General, Permanent Secretary or the Inspector General is not a “Public Officer” as known to Law”
It is manifestly clear from the judicial authorities that the lower Court was not in error when it held that the 2nd respondent was a Public Officer.
On whether the 3rd – 4th respondents in this appeal are Public Officers and consequently covered by the provision of the Public Officers Protection Act, the Court in Nwaogwugwu v. President of the Federal Republic of Nigeria (2007) 6 NWLR (pt. 1030) 237 at 247 held that:-
“The words “any person” in section 2(a) of the Public Officers Protection Act are not limited to human beings or to persons sued in their personal names but also include artificial persons, that is public bodies, or body corporate, or incorporate statutory bodies or persons”.
In view of the fact that both the 3rd-4th respondents are statutory bodies established by the law, I am not in doubt that the 3rd – 4th respondents are Public Officers and the lower Court was not in error to have decided in that direction.
On whether the 5th – 11th respondents are Public Officer, from the plethora judicial authorities cited earlier returned to in this judgment none of them could individually or collectively be termed a Public Officer under the law. There is nothing before the Court indicating that the 5th -11th respondents occupied any office specified under section 318 of the 1999 Constitution of the Federal Republic of Nigeria, it is the occupation of any of the enlisted office under section 318 of the constitution of Nigeria 1999 that confers upon the occupier of such an office “Public Officer”.
Having held that only the 2nd – 4th respondents in this appeal are Public Officers out of the 11 respondents in this appeal, I shall now proceed to enumerate the conditions which must be fulfilled before the Public Officers (Protection) Act can become applicable. In Central Bank of Nigeria v. Ukpong (2006) 13 NWLR (pt. 998) 555 at 559, the Court of Appeal in the course of interpreting section 2(a) of the Public Officers (Protection) Law, Cap 106, Laws of Oyo State, 1978 which is impari materia with section 2(a) of the Public Officers Protection Act, laws of Kaduna State opined that:
“There are two conditions precedent to the application of section 2(a) of the Public Officers (protection) Law. The two conditions are:-
(a). it must be established that the person against whom the action is commenced is a Public Officer or a person acting in the execution of public justices within the meaning of the law; and
(b). the act done by the person in respect of which the action is commenced must be one done in pursuance of execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law or authority”.
In the instant appeal, the 1st condition encapsulated in the above judicial authority has not been satisfied and as such the lower Court was in error when it applied the Provision of the Public Officers (Protection) Act to dismiss the said action. There is also the fact the main issue before the lower Court revolves around the recovery of the piece of land that was revoked from the appellant via a Revocation Notice that was issue to the appellant. The lower Court was in error when it applied the provision of the Public Officers (Protection) Act, laws of Kaduna State to resolve the issue before it as action bordering on recovery of land is exempted from the applicability of the provision of the said Act. In Peter I. Okeke v. Alhaji Baba (2000) 2 NWLR (pt.650) 644 at 653 A, the Court held that:-
“It is also settled law that the provisions of the Public Officers Protection Law, are not absolute, they do not apply in action for recovery of Land, breaches of contract, claims for work and labour done.
See Salako v. LEDB (1953) 20 NLR 196.
Soule v. LEDB (1965) LLR 118”
It is for these reasons advanced that, I find merit in this appeal and it is hereby allowed. The Chief Judge of Kaduna State is hereby directed to re-assign this case to another judge of the High court of Justice, Kaduna State to be retried.
There will be no order as to costs.
ITA G. MBABA, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother ABDU ABOKI, JCA. I agree with his reasoning and conclusion, completely.
It would be wrong and fraudulent to use the Public Officer’s protection Law to deny a party a right to litigate over wrongful interference with his land, oil the mere excuse that he did not take action within the time allowed by Section 2(a) of the Public Officers Protection Law, and determining the alleged time, from the date of the purported letter of the revocation. That would simply permit unscrupulous Public officers to dispossess Land holders of their Right of Occupancies, keep the purported revocation letter from the victims, take over their lands, and fall back on the letter of revocation, served be-latedly on the victim!
This point was considered by the Court in the case of GOVERNMENT KWARA STATE (2012) 5 NWLR (Pt. 1293) 242, held 21, where the beneficiaries of the fraudulent re-allocation of the land of the plaintiff were also parties to the purported revocation of the Plaintiff’s right of occupancy. And they were also the people who brought the motion to dismiss the Suit, hiding under the Section 2 (a) of Public Officers Protection Act. It was held:
“Where it is found that the action of a public officer is unlawful or done in bad faith or an abuse of his office, he cannot be protected under Section 2 (a) of the Public Officers (Protection) law. In the instant case, if the re-allocation of the appellant’s land to the 4th to 6th Respondents was in fact done by the 1st Respondent, that becomes a ground of defence, which the Respondent must plead and lead credible evidence to prove and justify at the hearing. In the circumstance, the alleged act of re-allocation of the claimant’s land to the 4th to 6th Respondents could not, therefore, be taken for granted, as a lawful act by the 1st Respondent, without credible evidence to prove and justify it… The defendants had a duty to file their defence to deny those grave allegation so if disputed. They did not, but in rare display of arrogance and mischief, they brought that application to say that the case was statute barred; that the revocation of the appellant’s right of occupancy had become a done deal, since it had been done more than 3 months before the appellant came to Court to question it; that by the Public Officers Protection Law, the appellant’s right of action has been extinguished!
Sadly, the learned trial Judge bought their weird reasoning and held that the suit was statute barred, because the appellant did not take out the action within 3 months of the revocation of the appellant’s right of occupancy! Meanwhile, no defence was filed by the defendants to deny the claimant’s claim no evidence was led to show whether or not appellant’s right of occupancy was revoked or lawfully revoked, and if so, when? No evidence was taken to establish when the cause of action accrued in the circumstances, to establish the alleged statutory limitation of three (3) months for the appellant to take action!
Even if the defence of limitation of time were to apply in such a case, can the Respondents invoke such provision Public Officers Protection Law-to deny the appellant a hearing and take the land in the face of such damaging accusation of bad faith and abuse of office, which are yet to be determined? To answer that question in the affirmative would be to use the legal process to enthrone illegality, absurdity and impunity. I shall not say more on that, since the case of the appellant is yet to be heard to establish or disprove those grave allegations by the appellant, of bad faith and abuse of office by the Respondent.”
That seems to be talking about this case!
With this and the fuller reasons in the lead judgment, I too allow the appeal, and abide by the consequential orders in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Aboki, JCA. His Lordship has meticulously considered and resolved the issues in contention in this appeal. I agree with the reasoning and conclusions. I have nothing more to add. I, too, hold that this appeal has merits. I set aside the decision of lower Court contained in the Ruling delivered by Honorable Justice A. A. Othman on the 17th of October, 2005 in Suit No KDH/KAD/180/2001. I abide the consequential order in the lead judgment.
Appearances
Appellant absent and unrepresentedFor Appellant
AND
Mrs. S. O. Omoloba for 1st-4th Respondents, 5th -10th Respondent absent and unrepresentedFor Respondent
