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UNION OAK FARMS & INDUSTRIES LTD v. AMCON (2021)

UNION OAK FARMS & INDUSTRIES LTD v. AMCON

(2021)LCN/15802(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, December 02, 2021

CA/A/641/2016

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

UNION OAK FARMS AND INDUSTRIES LTD. APPELANT(S)

And

ASSET MANAGEMENT CORPORATION OF NIGERIA RESPONDENT(S)

 

RATIO

THE INTENTION OF THE LEGISLATURE IN THE PUBLIC OFFICERS (PROTECTION) LAW

The words “Public Officer” or “any person” for the purpose of the Public Officers Protection Act and as stipulated in Section 2 of the Public Officers Protection Law not only refers to natural persons or persons sued in their personal names, they extend to public bodies, institutions or persons sued by their official names or titles; see F.G.N. V. ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162 AT 195; IBRAHIM V. J.S.C. KADUNA STATE (1998) 14 NWLR (PT. 584) 1 and PERMANENT SECRETARY MINISTRY OF WORKS ETC. V. BALOGUN (1975) 5 SC 57.
​The intention of the Legislature in the Public Officers (Protection) Law is to provide protection for public officers, corporate or incorporated bodies in the discharge of their public assignment; OFFOBOCHE V. OGOJA LOCAL GOVERNMENT (2001) 16 NWLR (PT.739) 458.
​It is therefore settled that the word “person” under Section 18 of the Interpretation Act includes “anybody of persons corporate or incorporate”; as a consequence, the law is now settled that Public Officers Protection Act protects both artificial persons and natural persons, who act in the public service of the Federation of Nigeria or of a State of the Federal Republic of Nigeria; See ALHAJI ALIYU IBRAHIM V. JUDICIAL SERVICE COMMITTEE, KADUNA STATE & ANOR. (1998) 14 NWLR (PT. 584) 1 AT 36.
The Supreme Court stated in IBRAHIM V. JUDICIAL SERVICE COMMITTEE (SUPRA) as that:
“There is also the definition of the same word ‘person’ in Section 18(1) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990 as follows: “person” includes anybody of persons corporate or unincorporated. Without, therefore, seeking guidance from anywhere else, it seems to me plain that the definition of the word ‘person’ in the legal sense under the Nigerian law is not limited to natural persons or human beings only as the appellant now vigorously appears to contend, It clearly admits and includes artificial persons such as a corporation sole, company or anybody of persons corporate or incorporate. In this regard, and again without making reference to decisions of any foreign jurisdiction, it is clear to me that it cannot be right that the definition of any person in the Public Officers (Protection) Law of Northern Nigeria, 1963 must be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. I am not, with respect, prepared to accept this interpretation as well founded.”
In FEDERAL GOVERNMENT OF NIGERIA & 6 ORS. V. ZEBRA ENERGY LTD. (2002) 18 NWLR (PT. 798) 162 AT 195 the Supreme Court also held that:
“…The argument whether the appellants are public officers or not has already been settled… the meaning of “Public Officers” or “any person” used in the Public Officers (Protection) Law, Cap. 111 of Northern Nigeria, 1963…as stipulated in Section 2 refer to natural persons or persons sued in their personal names…they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles”; SEE ALSO THE CASE OF PERMANENT SECRETARY MINISTRY OF WORKS, E.T.C. & ANOR. V. BALOGUN (1975) NSCC 292 AND C. B. N. VS. ADEDEJI (2004) 1ST NWLR (PT.890) 226 CA.
The contention that the trial Court fell into error by misconstruing Section 318 (1) of the Constitution misses the point completely, because the point to be understood is, that the Public Officers Protection Law protects both public offices and the public office holders. In F. G. N. V. ZEBRA ENERGY LTD. (2003) F. W. L. R (PT. 142) 162, it was held that the words “public officer” in the Public Officers Protection Law refers not only to natural persons, or persons sued in their personal names but that they extend to institutions, bodies, artificial persons sued by their official names; See also BAMISILE V. NATIONAL JUDICIAL COUNCIL (2013) ALL F. W. L.R (PT. 678) 911. ATTORNEY GENERAL RIVERS STATE V. ATTORNEY-GENERAL BAYELSA STATE (2012) N. S. C. Q. R VOL. 52 (PT. 1) 239. EBOIGBE V. N. N. P. C (1994) 18 L. R. C. N 54, LAFIA LOCAL GOVERNMENT V. ANZAKU (2012) N. S. C. Q. R VOL. 51 539 and OSUN STATE V. DALAMI (NIG) LTD. (2007) L. R. C. N. VOL. 148 P.1311.
PER MUSTAPHA, J.C.A.

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Abuja Judicial Division, presided over by Hon Justice A. R. Mohammed, delivered on the 28th of April, 2016.

The Appellant, as plaintiff instituted the suit challenging the assignment to the Respondent, as defendant of a debt owed to Oceanic Bank, now Ecobank of Nig. Plc, and hand over of document of title to the Appellant’s property offered as security for the loan by the bank to the Respondent.

The Appellant’s case was that at the time of the assignment of the debt, the Appellant had fully repaid the loan, and there was nothing to be assigned to the respondent. The Appellant sought the following reliefs:
“(1) AN ORDER of the Court nullifying and making void the purchase by the defendant namely Asset Management Corporation of Nigeria of a purported banking transaction debt from Ecobank of Nigeria Plc as a debt purportedly owed by the plaintiff namely Union Oak Farms and Industries Limited to Ecobank of Nigeria Plc.

(2) AN ORDER of the Court nullifying and making void the transfer and handover of the title deeds of the plaintiff’s guarantor mortgaged property by Ecobank of Nigeria Plc to the defendant to wit, the title deeds in respect of plot 217A Awka Industrial Layout, Awka Anambra State that was deposited with Ecobank of Nigeria Plc by the plaintiff’s guarantors.
(3) AN ORDER of the Court nullifying and making void the sale by the defendant to any third party of the landed property Plot 217A Awka Industrial Layout, Awka, Anambra State being the mortgaged property of the plaintiff’s guarantors.
(4) AN ORDER of the Court upon the defendant action through its Managing Director to forthwith return to the plaintiff’s guarantor the title deed of the mortgage property Plot 217A Awka Industrial Layout, Awka, Anambra State that was deposited by the plaintiff’s guarantors under a mortgage and which title deed was unlawfully and wrongfully delivered by Ecobank of Nigeria Plc to the defendant pursuant to the purchase of a purported banking transaction debt by the defendant from Ecobank of Nigeria Plc as a debt purportedly owed by the plaintiff to Ecobank of Nigeria Plc.
(5) AN ORDER of the Court upon the defendant acting through its managing Director to forthwith release to the plaintiff’s guarantor through the plaintiff’s Managing Director the title deed of the plaintiff’s guarantors in respect of the property Plot 217A Awka Industrial Layout, Awka, Anambra State that was deposited by the plaintiff’s guarantors under a mortgage and which title deed was unlawfully and wrongfully delivered by Ecobank of Nigeria Plc to the defendant pursuant to the purchase of a purported banking transaction debt by the defendant from Ecobank of Nigeria Plc as a debt purportedly owed by the plaintiff to Ecobank of Nigeria Plc.
6. AN ORDER of the Court upon the defendant to pay damages to the plaintiff at the rate of the third value of the plaintiff’s guarantors mortgage property as at the date of judgment with effect from 1/12/2012 until the title deed of the aforesaid mortgage property Plot 217A Awka Industrial Layout, Awka, Anambra State is returned and released by the defendant to the plaintiff’s guarantor through the plaintiff’s Managing Director”

​The Respondent filed a notice of preliminary objection challenging the competence of the suit, urging the Court to dismiss the suit on the ground of statute bar, by reason of Section 2 (a) of the Public Officers Protection Act Cap p.41 LFN, 2004.

The Appellant filed its opposition to the preliminary objection, while the Respondent filed a reply to the response. The trial Court heard parties’ arguments on the preliminary objection and in its ruling struck out the suit.

Dissatisfied with the ruling of the trial Court, the Appellant appealed on three grounds as follows:
GROUNDS OF APPEAL
GROUND 1:
The Learned Trial Judge erred in law when it held that the Defendant/Respondent is qualified as a public officer within the contemplation of Section 2(a) of Public Officers Protection Act, Cap P, 42 L. F. N. 2004.
GROUND 2:
The Learned Trial Judge erred in law when he held that the action of the Plaintiff/Appellant is statute barred.
GROUND 3:
The Learned Trial Judge erred in law when it relied on the case of Ibrahim vs. JSC Kaduna State (1998) 14 NWLR (Pt. 584) 1 in deciding the facts of this Ruling.

​From these grounds, the appellant formulated a lone issue for determination by this Court as follows:
Whether the trial Court was not in error in striking out the suit on the ground that the suit against the respondent is statute barred, respondent being a public officer entitled to the protection of the public officers protection Act.

The Respondent also formulated a lone issue for the determination of this Court in the respondent’s brief filed on the 25th May, 2018 but deemed properly filed on the 16th October, 2018; it is fundamentally the same with that of the appellant. The appeal will be determined on the issue formulated on behalf of the Appellant.

It is submitted for the appellant on the lone issue that for the public officers protection Act to apply, it has to be established, first, that the defendant is a public officer; and that Section 18 (1) of the Interpretation Act defines a public office simply as:
“A member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or the public service of a State.”

That the respondent is not a public officer within the meaning and intendment of the Act; see CBN V NJEMANZE (2015) 4 NWLR part 1449 page 276 and SHARIKA & SONS V GOV OF KADUNA STATE (2013) LPELR-20378; this is more so, as the trial Court misconstrued the wordings of paragraphs (c) and (e) of Section 318 (1) of the constitution, as amended, and thus came to a wrong conclusion, because the Section referred to staff of such institution and not the institution itself; see A. G. OF RIVERS STATE V A. G. OF BAYELSA STATE & ANR (2012) LPELR- 9336-SC.

That whether or not an agency of the Federal Government is a public officer within the meaning of the Act is dependent on the provision of the statute that created it.

That having shown that the respondent is not a public officer within the meaning of the Act, the time the suit was instituted for the purpose of the public officers protection Act becomes irrelevant.

That the error of the trial Court occasioned grave miscarriage of justice, and this Court has a duty to reverse the decision of the trial Court by setting aside the ruling.

It is submitted for the respondent in response that the Public Officers’ Protection Act did not provide that its applicability shall only be enjoyed by persons or bodies who incorporated it into their establishment Act.

That the Act is generally applicable to all persons and public officers of the Federal Government of Nigeria; GOV KADUNA STATE V KAGOMA (1982) 6 SC 87; and also that where an Act or statute establishes an institution or agency of the Federation incorporating a general statute in its provisions, the incorporated provision continues its application and enjoyment by other bodies or agencies regardless of its non-inclusion in their establishing statutes. Thus the non-inclusion of the Public Officers’ Protection Act in a statute like AMCON Act does not prevent the agency from benefiting from the Act.

That even though the AMCON is not mentioned by name in Section 318 of the Constitution, it is not excluded from the category of persons called public officers; ABUBAKAR & ANR V GOV OF GOMBE STATE & ORS (2002) 17 NWLR part 797 page 533 and OFFOBOCHE V OGOJA L.G. (2001) 16 NWLR part 739 page 458.

That the respondent is a public officer within the meaning of Section 2 (a) of the Public Officers Protection Act; AIYETAN NIG. V INSTITUTE OF OIL PALM RESEARCH (1987) 6 SC; ASO TIM DOZ INVESTMENT CO LTD V ABUJA MARKETS MANAGEMENT LTD & ANR ​ (2016) LPELR-40367-CA.

That the word ‘person’ means both artificial and natural persons, and includes sole or public bodies corporate; KASANDUBU V ULTIMATE PETROLEUM LTD (2008) 7 NWLR part 1086 CA and UNIVERSITY OF JOS V IKEGWUOH (2013) 9 NWLR part 1360 page 478.

It is further submitted that the respondent is a public officer or person entitled to the benefit of Section 2 (a) of the Public Officers Protection Act, as such the suit of the appellant brought against the respondent after three months was statute barred.

RESOLUTION:
The words “Public Officer” or “any person” for the purpose of the Public Officers Protection Act and as stipulated in Section 2 of the Public Officers Protection Law not only refers to natural persons or persons sued in their personal names, they extend to public bodies, institutions or persons sued by their official names or titles; see F.G.N. V. ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162 AT 195; IBRAHIM V. J.S.C. KADUNA STATE (1998) 14 NWLR (PT. 584) 1 and PERMANENT SECRETARY MINISTRY OF WORKS ETC. V. BALOGUN (1975) 5 SC 57.
​The intention of the Legislature in the Public Officers (Protection) Law is to provide protection for public officers, corporate or incorporated bodies in the discharge of their public assignment; OFFOBOCHE V. OGOJA LOCAL GOVERNMENT (2001) 16 NWLR (PT.739) 458.
​It is therefore settled that the word “person” under Section 18 of the Interpretation Act includes “anybody of persons corporate or incorporate”; as a consequence, the law is now settled that Public Officers Protection Act protects both artificial persons and natural persons, who act in the public service of the Federation of Nigeria or of a State of the Federal Republic of Nigeria; See ALHAJI ALIYU IBRAHIM V. JUDICIAL SERVICE COMMITTEE, KADUNA STATE & ANOR. (1998) 14 NWLR (PT. 584) 1 AT 36.
The Supreme Court stated in IBRAHIM V. JUDICIAL SERVICE COMMITTEE (SUPRA) as that:
“There is also the definition of the same word ‘person’ in Section 18(1) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990 as follows: “person” includes anybody of persons corporate or unincorporated. Without, therefore, seeking guidance from anywhere else, it seems to me plain that the definition of the word ‘person’ in the legal sense under the Nigerian law is not limited to natural persons or human beings only as the appellant now vigorously appears to contend, It clearly admits and includes artificial persons such as a corporation sole, company or anybody of persons corporate or incorporate. In this regard, and again without making reference to decisions of any foreign jurisdiction, it is clear to me that it cannot be right that the definition of any person in the Public Officers (Protection) Law of Northern Nigeria, 1963 must be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. I am not, with respect, prepared to accept this interpretation as well founded.”
In FEDERAL GOVERNMENT OF NIGERIA & 6 ORS. V. ZEBRA ENERGY LTD. (2002) 18 NWLR (PT. 798) 162 AT 195 the Supreme Court also held that:
“…The argument whether the appellants are public officers or not has already been settled… the meaning of “Public Officers” or “any person” used in the Public Officers (Protection) Law, Cap. 111 of Northern Nigeria, 1963…as stipulated in Section 2 refer to natural persons or persons sued in their personal names…they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles”; SEE ALSO THE CASE OF PERMANENT SECRETARY MINISTRY OF WORKS, E.T.C. & ANOR. V. BALOGUN (1975) NSCC 292 AND C. B. N. VS. ADEDEJI (2004) 1ST NWLR (PT.890) 226 CA.
The contention that the trial Court fell into error by misconstruing Section 318 (1) of the Constitution misses the point completely, because the point to be understood is, that the Public Officers Protection Law protects both public offices and the public office holders. In F. G. N. V. ZEBRA ENERGY LTD. (2003) F. W. L. R (PT. 142) 162, it was held that the words “public officer” in the Public Officers Protection Law refers not only to natural persons, or persons sued in their personal names but that they extend to institutions, bodies, artificial persons sued by their official names; See also BAMISILE V. NATIONAL JUDICIAL COUNCIL (2013) ALL F. W. L.R (PT. 678) 911. ATTORNEY GENERAL RIVERS STATE V. ATTORNEY-GENERAL BAYELSA STATE (2012) N. S. C. Q. R VOL. 52 (PT. 1) 239. EBOIGBE V. N. N. P. C (1994) 18 L. R. C. N 54, LAFIA LOCAL GOVERNMENT V. ANZAKU (2012) N. S. C. Q. R VOL. 51 539 and OSUN STATE V. DALAMI (NIG) LTD. (2007) L. R. C. N. VOL. 148 P.1311.
The question, who is a Public Officer under the Public Officers Protection Act, was effectively determined by the Supreme Court in OFFOBOCHE v. OGOJA L. G. & ANOR (2001) 16 NWLR PART. 739 page 458. It is important to bear in mind that the question, whether the Public Officer Protection Law applies to institutions is not coming up for the first time in this Court or even the Supreme Court. At the risk of repetition it has to be emphasized that IBRAHIM v. JUDICIAL SERVICE COMMITTEE KADUNA STATE (1998) 14 NWLR (PT. 584) 1 clearly settled it all, when it was held that “any person” in Section 2(a) admits and include artificial persons, and it remains authority which this Court is compelled to follow; See also NIGERIA CUSTOM SERVICE BOARD v. ECHY (NIG) LTD (2017) LPELR-42891 (C.A.).
​Furthermore, Section 18 (1) of the Interpretation Act expresses “public officer” to mean, a member of the public service of the federation and the state, within the meaning of constitution. Section 318 (1) (e) of the Constitution, as amended expresses ‘public service of the Federation’ to mean, “the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as (e) state of any corporation established by an Act of the National Assembly”.
The AMCON was established by an Act of the National Assembly, and is part of the public service of the federation. The respondent is therefore, clearly an agency of the Federal government; see CBN V JACOB OLADELE AMAO & 2 ORS (2010) 16 NWLR PART 1219 PAGE 271.
The contention that the Respondent does not qualify to be a public officer within the meaning of Section 2 (a) of the Act, because the AMCON was not mentioned anywhere in Section 318 of the Constitution, as amended turns both logic and common sense on their respective heads. The public officers’ protection Act applies not only to public officers but public offices, agencies and institutions, established for the effective functioning of the federal government. The functions of the AMCON are stated in Sections 4, 5 and 6 of the ACT creating it.
While referring to ATTORNEY GEN OF RIVERS STATE V ATTORNEY GEN OF BAYELSA STATE & ANR (2012) LPELR-9336 SC, learned counsel for the appellant sought to draw a comparison between the provisions of the National Boundary Commission, Act, 2006, which clearly stated in Section 29 that the provision of the Limitation Act shall apply to any suit against an employee or officer, and Section 1 of the Amcon Act, which made no reference to the limitation law, and contended that the respondent is not a public officer, simply because the limitation law was not incorporated into the Amcon Act. That to my mind is clear misunderstanding of the Public Officers Protection Act, not least because, there is no requirement that the Act has to be incorporated into any Act establishing an institution or agency before it can enjoy the protestation of the Act.
The Respondent does not have to be mentioned directly by Section 318 (1) of the Constitution for the respondent to qualify as a public officer, because the operative words “in any capacity” and “includes”, suggest existence of other public officers in addition to the ones mentioned; see ABUBAKAR & ANR V GOV GOMBE STATE & ORS (2002) 17 NWLR part 797 page 533.

​The trial Court was therefore right, and its decision in the ruling appealed is impeccable.

It is for these reasons that I now resolve the sole issue for determination in favour of the respondent, against the appellant. Having done so, I am led to accordingly dismiss the appeal for lack of merit, and affirm the decision of the trial Court.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read the draft of the judgment just delivered in Court by my learned brother MOHAMMED MUSTAPHA, JCA.

I am in complete agreement with his reasoning and the conclusion. I, for the same reason do dismiss the appeal for lack of merit. I abide by the consequential Order as made in the lead judgment.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of reading before now, the lead judgment just delivered by my learned brother, Mohammed Mustapha, JCA.

I am in complete agreement with the reasoning and conclusion contained therein and I also dismiss the appeal for lacking in merit. I therefore affirm the decision of the trial Court.
​I make no order as to costs.

Appearances:

V. I. P Ozumba For Appellant(s)

Agbai N. Agwu with him U. Ikegwonu For Respondent(s)