EFA v. EFA
(2022)LCN/16413(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Tuesday, January 18, 2022
CA/C/57/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
CHIEF EMMANUEL ANTHONY BRUNO EFA APPELANT(S)
And
CHIEF ETIM EDET EFA RESPONDENT(S)
RATIO:
THE SETTLED LAW IN GROUNDS OF APPEAL THAT DO NOT ARISE FROM THE JUDGMENT
It is settled law that grounds of appeal which do not arise from the judgment of the lower Court will be treated as incompetent. The complaint in the notice of appeal must be against the ratio of the decision. See GWEDE VS. INEC (2014) 18 NWLR (PT. 1438) 56 at 87; FRN VS. MOHAMMED (2014) 9 NWLR (PT. 1414) 551 at 588. ADEMOLA SAMUEL BOLA, J.C.A.
THE CONDITIONS THAT MUST EXIST TO AVAIL A OFFICER
However, two conditions must exist to avail the officer the protection of Section 2(a) of the Law. First, it must be established that the person against whom the action is commenced is a public officer in respect of whom the action was commenced. It must be an act done in pursuance or execution or intended execution of any law or of any public duty or authority. See EKEOGU VS. AGIRI (1990) 1 NWLR (PT. 126) 345, GARBA VS. SHUAIBU (2001) FWLR (PT. 56) 715. ADEMOLA SAMUEL BOLA, J.C.A.
THE DEFINITION OF A POLICE OFFICER UNDER POLICE OFFICERS PROTECTION ACT
In the case of OJIE & ORS VS. CROSS-RIVER STATE COUNCIL OF PRIVATIZATION & ANOR. (2018) LPELR-46000 (CA), a Public Officer under Public Officers Protection Act was defined as follows:
“The Public Officers Protection Law Cap 93, Laws of Cross-River State of Nigeria like all other limitation laws is aimed at protecting public officers in the discharge of public duties. Both Section 318 of the 1999 Constitution (as amended).
Section 18 of the Interpretation Act defines public officer to mean a person holding public office of the Federation or State in any capacity enumerated therein, which includes staff of statutory corporations and of companies in which Federal or State Government has controlling shares….” Per Shuaibu, JCA. ADEMOLA SAMUEL BOLA, J.C.A.
LEGAL PROCEEDINGS CANNOT BE PROPERLY INSTITUTED AFTER THE EXPIRATION OF THE PRESCRIBED PERIOD OF THE STATUTE OF LIMITATION
Where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute-barred, a Plaintiff who might have had a cause of action loses the right to enforce it by judicial process because the period of the time lay down by the limitation law as to the time for instituting the action has elapsed. See CBN VS. OKOJIE (2015) 14 NWLR (PT. 1479) 231 at 268.
Having been determined that this action was filed outside the six months time frame under the Public Officers Protection Law of Cross-River State and the matter therefore, caught by the Limitation Law, the jurisdiction of the lower Court to adjudicate in respect of the substantive matter is therefore strangulated by operation of law. This is against the background that a successful defence under the provision of the Public Officers Protection Law (POPL) of Cross-River State ousts the jurisdiction of the Court. It is notable that one of the four conditions for the Court to exercise jurisdiction in a given case is that the suit must have been commenced by due process of law and upon fulfillment of any conditions precedent to assumption of jurisdiction. A suit commenced after the expiration of the time stipulated in the law cannot be said to have been commenced by due process. See SYLVA VS. INEC (2015) 16 NWLR (PT. 1486) 576 at 620. ADEMOLA SAMUEL BOLA, J.C.A.
ADEMOLA SAMUEL BOLA, J.C.A.: (Delivering the Leading Judgment): This is an appeal challenging the decision – the ruling of Honourable Justice Ofem I. Ofem of the High Court of Justice, Cross River State sitting at Calabar which ruling was delivered on the 14th day of November, 2017 in Suit No. HCA/ 10/2016.
Dissatisfied with the decision of the trial Court, the Claimant/Appellant filed their Notice of Appeal at the Registry of the lower Court on 7th December, 2017. The Notice of Appeal consists of three (3) grounds.
The Record of Appeal was transmitted to this Court on 7th February, 2018. The Appellant filed their brief of argument on 26th June, 2019. The Appellant’s brief was settled by H. E. Chukwu, Esq. The Respondent failed to file his Respondent’s brief.
On 23rd September, 2021 by a motion on notice dated and filed on 16th March, 2021, the Appellant applied to this Court for an order granting leave to the Appellant/Applicant for the hearing of this appeal on the basis of the Appellant’s brief of argument alone for the failure of the Respondent to file his brief of argument, the period within which the Respondent could file his brief having lapsed. The application was accordingly granted by this Court.
BACKGROUND FACTS
This action is in respect of a chieftaincy tussle between the parties. The Appellant commenced the action at the lower Court vide a writ of summons claiming the following reliefs:
a. A DECLARATION that the Claimant is the rightful person to be recognized, installed and issued with Certificate of Recognition as the Village Head of Idebe Ikot Esu Village, Akpabuyo Local Government Area.
b. AN ORDER directing the 2nd Defendant to issue Certificate of Recognition of the Plaintiff as the Village Head of Idebe Ikot Esu Village, Akpabuyo Local Government Area.
c. AN ORDER restraining the 2nd Defendants from recognizing, installing and issuing Certificate of Recognition to the 1st Defendant as Village Head of Idebe Ikot Esu.
d. AN ORDER of perpetual injunction restraining the Defendant from parading himself as the Village Head of Idebe Ikot Esu Village, Akpabuyo Local Government Area.
e. General damages ofN5m (Five Million Naira) only.
f. Cost of Litigation N1. 5m.
The Claimant/Appellant and the 1st Defendant/Respondent joined issues as per their pleadings.
On 11th October, 2017, the 1st Defendant/Respondent filed a motion on notice praying the lower Court to dismiss the suit on grounds that the action was statute-barred. That is, whether by the provision of the Public Officer’s (Protection) Law of Cross River State, the action was statute-barred.
The trial judge delivered his considered ruling. It was adjudged that the action was statute-barred, the action having been instituted 10 months after the cause of action arose.
The ruling of the lower Court constitutes the bedrock of this appeal.
APPELLANT’S BRIEF OF ARGUMENT
The Appellant’s brief consist of four (4) issues distilled for consideration and determination in this appeal. The issues are:
1. Whether the trial Court’s consideration of the representation and submission of a Counsel who was not briefed by that party does not amount to a nullity. (Ground 1).
2. Whether in consideration of the facts of this case the action of the Appellant was statute-barred. (Ground 2).
3. Whether it is in the intent of the Nigerian Law to regard a village head as a Public Officer. (Ground 3).
4. Whether the failure of the trial Court to consider the fact that the Respondent is neither an indigene of Idebe Ikot Esu nor a descendant of any of the Royal families qualify to ascend the traditional stool of the village head does not amount to pervasion of justice. (Ground 4).
ISSUE ONE
It was the submission of the Appellant’s Counsel that the trial Court considered the representation of the 2nd Defendant Government of Cross-River State by the Counsel of the 1st Defendant/Respondent who was only hired by the 1st Defendant/Respondent and was not in any way briefed by the 2nd Defendant in the trial Court either to cast appearance on her behalf or to hold her brief. That it was apparent that the 2nd Defendant was absent in Court and was not represented by Counsel from the beginning of this matter till the end in the trial. That the Counsel to the 1st Defendant/Respondent who is not a lawyer from the Ministry of Justice of Cross-River State nor was he issued with any fiat by the State Attorney General could put up a defence for the State Government. He referred to the case of ATAKE VS. AFEJUKU (1994) 25 LRCN 25; (1994) 9 MVLR (PT. 368) 79; LPELR – SC 218/1992.
It was also submitted that no instruction of the 2nd Defendant in the trial Court to the Counsel of the 1st Defendant/Respondent to represent her. That the Counsel to the Respondent was just a meddlesome interloper. Counsel cited the case ADEFULU VS. OKULAJA (2002) 2 QRR 201; (1998) 5 NWLR (PT. 550) 442, ROUDEL VS. WORSLEY (1966) 3 AER 665, CHIEF GANI FAWEHINMI VS. NBA (1985) HCNLR 765 at 783.
It was argued that the trial Court erred by condoning the Counsel to the 1st Defendant/Respondent to square up for the 2nd Defendant as the right to choice of Counsel and change of same is entirely the exclusive preserve of the known litigant on record and not that of the Court or the co-defendant as in this case. Refer to the case OGUNDIMU VS. KASUMU (2006) ALL FWLR (PT. 326) at 218, ERIOBUNA VS. EZEIFE (1992) 4 NWLR (PT. 236) 417 at 420. Counsel argued further that the over-indulgence of the trial Court in allowing the counsel to the 1st Defendant/Respondent to argue the case of the Government of Cross-River State and act on same which is not relevant gave rise to miscarriage of justice. He cited the cases SPRING BANK PLC VS. OJOTU SAMUEL ADEKUNLE (2011) 4 NWLR (PT. 1229) 51, EGBE VS. ONOGUN (1972) LPELR SC 284/1970.
ISSUE 2 AND 3
On whether in consideration of the facts of this case, the action of the Claimant/Appellant was statute-barred and whether it is the intent of Nigeria Law to regard a village head as a public officer.
Counsel argued that notwithstanding jurisdiction is the kernel of adjudication and can be raised at any time, for an action to be statute-barred, time begins to run from when the other party becomes aware of the existence of the wrong or damages done to him. That time begins to run from when there is a person who can sue and another who can be sued and all facts have happened which are material to be proved to ensure the Plaintiff’s success. Refer to UBA VS. BTL INDUSTRIES LTD. AC 384.
It was submitted that time began to run from the time the Appellant became aware of the issuance of the certificate of recognition and not when it was secretly collected by the Respondent.
Counsel referred to Section 1(b) of the Public Officers (Protection) Amendment Law No. 1 of 2017 of Cross- River State and the case ABUBAKAR VS. GOVERNMENT OF GOMBE STATE & ANOR (2002) 17 NWLR (PT. 797) at 533 which case referred to Section 18(1) of the Interpretation Act LFN 1990 which define a public officer. Counsel referred to Section 318(1) Paragraph 8 of the Constitution of the Federation of Nigeria 1999 on the definition of public office. That the definition precludes the Respondent from being classified as a public officer and is therefore not entitled to the limitation law contrary to the argument of the Respondent’s Counsel. Counsel also referred to Paragraph 11 of the 5th Schedule of the Constitution, which does not include a village head as a public officer.
It was argued that the Public Officers Protection Law does not cover a situation where the person relying on it acted outside the colour of his office or outside his constitutional or statutory duty. Refer to the case NWANKWERE VS. ADEWUNMI (1967) NMLR 45 at 49, ANOZIE VS. A.G. FEDERATION (2008) 10 NWLR (PT. 1095) 278 at 290 – 291.
Counsel submitted that the argument that the Respondent was a public officer because the position of a village head is a creation of statute by the Traditional Rulers Law of Cross-River State, 2004 was a misconception, a misnomer and misinterpretation of the law. That the state law cannot be superior to the constitution. That any law which is inconsistent with the constitution of the Federal Republic of Nigeria is a nullity and void to the extent of its inconsistency. He referred to Section 1 (3) of the Constitution, the cases ABACHA VS. FAWEHINMI (2000) 4 SC (PT. 11) P. 1, ABIA STATE VS. A.G. FEDERATION (2002) 6 NWLR (PT. 763) 204, A.G. ONDO VS. A.G. FEDERATION (2002) NWLR (PT. 772) 22.
ISSUE NO. 4
It is whether the failure of the trial Court to consider that the Respondent is neither an indigene of Idebe Ikot Esu nor a descendant of the Royal Family to ascend the Traditional Stool of the village head does not amount to perversion of justice.
This issue is in relation to the merit of the substantive action as the lower Court. It is necessary and imperative for this Court to consider this issue and determine whether it is competent first before considering other issues (1, 2 and 3) on their merit.
Issue no. 4 is said to have been distilled from ground 4 of the notice and grounds of appeal. It is pertinent to assert that the notice of appeal is on pages 286 and 287 of the Records of Appeal. The notice consists of three (3) grounds only. There is no ground 4.
In the light of this, it is therefore unequivocal that issue no. 4 flows from no ground in the notice of appeal. Neither can it be said that the 4th issue flows from any other grounds in the notice of appeal. What then is the effect of an issue that has no link with any ground on the notice of appeal? Every issue for determination must be formulated from one or more grounds of appeal and any issue which does not arise from the ground of appeal is incompetent. Such issue is irrelevant to the appeal and would therefore be discountenanced by the Court. See DADA VS. DOSUNMU (2006) 18 NWLR (PT. 1010) 134 at 156, CHIADI VS. AGGO (2018) 2 NWLR (PT. 1603) 175 at 211. Issues for determination must arise from and be limited to the grounds of appeal. SOGUNRO VS. YEKU (2017) 9 NWLR (PT. 1570) 290 at 339, FEDERAL REPUBLIC OF NIGERIA VS. MOHAMMED (2014) 9 NWLR (PT. 1414) 551 at 588.
Relying heavily on the above decision and flowing from the background that issue no. 4 distilled by the Appellant is not anchored or linked to any ground 4 in the notice of appeal, this Court holds that issue no. 4 is incompetent. For emphasis sake, the notice of appeal has only three grounds, no ground 4 exist which the 4th issue could be said to have been anchored on. This issue is discountenanced consequently.
Further to the above, issue no. 4 dealt extensively with the merit of the substantive action. The records of appeal reveal that at the lower Court the substantive case had not gone beyond the ruling delivered by the trial judge in respect of the application of the Defendant/Applicant. Hearing had not commenced. Evidence had not been elicited from the witnesses. No judgment had been delivered, yet the Defendant/Appellant proceeded under the incompetent issue no. 4 to canvass argument and submission on the merit of the substantive action. It is equally important to assert the 4th issue is predicated on the merit of the case. The merit of the case is not an issue before this Court but the ruling delivered by the lower Court on 14th November, 2017. Therefore, both the issue and the submission of Counsel do not arise from the ruling of the lower Court on appeal before this Court. Therefore, the issue and the submission predicated on it are incompetent; so much for the issue no. 4 which is incompetent.
RESOLUTION OF ISSUES 1, 2 AND 3
Issue 1 has to do with whether the trial Court’s consideration of the representation and submission of a Counsel who was not briefed by that party does not amount to a nullity. The Appellant’s contention is that the lower Court allowed the representation of the 2nd Defendant – Cross-River State by the Counsel of the 1st Defendant/Appellant who was only lured by the 1st Defendant/Respondent and not in any way briefed by the 2nd Defendant. That he was not issued a fiat by the State Attorney General and, therefore, could not have put up a defence for the State Government (2nd Defendant).
From the records, there is no where the Counsel for the 1st Defendant/Respondent appeared for the 2nd Respondent at the hearing of the 1st Defendant/Applicant motion on notice for the striking of the action at the lower Court. Mr. Breakthrough Eshiet did appear for the 1st Defendant/Applicant/Respondent only. He did not announce his appearance for the 2nd Defendant. Likewise, on 14th November, 2017 when theruling was delivered, the 1st Defendant’s Counsel did not put up representation for the 2nd Defendant. The 1st Defendant’s Counsel only made reference to the 2nd Defendant in the course of the argument of the application. In any case, the trial Court referred to the Counsel as counsel for the 1st Defendant, not Counsel for the 1st and 2nd Defendants.
Further to the above, the motion on notice filed on 11th October, 2017 challenging the jurisdiction of the lower Court was filed on behalf of the 1st Defendant/Applicant/Respondent. That the supporting affidavit was deposed to by the 1st Defendant/Applicant. It was not on behalf of the 1st and 2nd Defendants likewise, the written address of the 1st Defendant/Applicant. The 1st Defendant/Respondent’s Counsel never submitted on behalf of the 2nd Defendant not did he appear on behalf of the 2nd Defendant. The record of appeal does not show any record of the 1st Defendant/Respondent’s Counsel appearing for the 2nd Defendant.
The corollary of the above is that ground 1 of the notice of appeal and the 1st issue of the Appellant’s brief predicated on ground 1 of the notice do not flow from the record ofappeal. In other words, the record of appeal does not have any link with the 1st ground of the notice and the 1st issue of the brief of argument.
Assuming without conceding that the 1st Defendant’s Counsel appeared for the 2nd Defendant, was any objection raised by the Claimant Appellant’s counsel at the lower Court to the appearance? The record of appeal does not reflect any objection whatsoever. No decision was reached by the lower Court in respect of any appearance by the 1st Defendant. Invariably, ground 1 of the notice of appeal does not arise from the ruling of the lower Court.
It is settled law that grounds of appeal which do not arise from the judgment of the lower Court will be treated as incompetent. The complaint in the notice of appeal must be against the ratio of the decision. See GWEDE VS. INEC (2014) 18 NWLR (PT. 1438) 56 at 87; FRN VS. MOHAMMED (2014) 9 NWLR (PT. 1414) 551 at 588.
For a ground of appeal to be valid and competent, it must arise from and be traceable to the judgment appealed against and should constitute a challenge to the ratio of the decision on appeal. See SOGUNRO VS. YEKU (2017) 9 NWLR (PT. 1570) 290 at 339,OGUEBEGO VS. PDP (2016) 4 NWLR (PT. 1503) 446 AT 472.
The ground of appeal must attack the ratio and the issues for determination must be distilled from the grounds of appeal, which grounds must attack the ratio decidendi of the judgment. See KRK HOLDINGS (NG.) LTD. V. FIRST BANK OF NIGERIA LIMITED & ANOR (2017) 3 NWLR (PT. 1552) 326 AT 342.
Flowing from the above premises, it is the decision of this Court that ground 1 of the notice of appeal having no foundation on the decision of the lower Court and the records of appeal is invalid and incompetent. Ditto the issue no. 1 of the Appellant’s brief predicated on the invalid ground 1 is equally invalid and incompetent.
The submission of the Appellant’s Counsel in respect of issue no. 1 in the Appellant’s brief is of no moment in the circumstance. Issue no. 1 fails.
This Court now proceeds to consider issues no. 2 and 3 together. I consider issue no. 3 first. It is whether a village head is a public officer under the Nigerian Law. Can Chief EtimEdetEfa, the Village Head of Idebe Ikot Esu Village be said to be a public officer under Section 1 of the Public Officers (Protection) Amendment Law No. 1 2017 of Cross-River State? For the defence created under the law or Act, as it may be, is for public officer who acted pursuant to his duties as public officer. However, two conditions must exist to avail the officer the protection of Section 2(a) of the Law. First, it must be established that the person against whom the action is commenced is a public officer in respect of whom the action was commenced. It must be an act done in pursuance or execution or intended execution of any law or of any public duty or authority. See EKEOGU VS. AGIRI (1990) 1 NWLR (PT. 126) 345, GARBA VS. SHUAIBU (2001) FWLR (PT. 56) 715.
In the case of OJIE & ORS VS. CROSS-RIVER STATE COUNCIL OF PRIVATIZATION & ANOR. (2018) LPELR-46000 (CA), a Public Officer under Public Officers Protection Act was defined as follows:
“The Public Officers Protection Law Cap 93, Laws of Cross-River State of Nigeria like all other limitation laws is aimed at protecting public officers in the discharge of public duties. Both Section 318 of the 1999 Constitution (as amended).
Section 18 of the Interpretation Act defines public officer to mean a person holding public office of the Federation or State in anycapacity enumerated therein, which includes staff of statutory corporations and of companies in which Federal or State Government has controlling shares….” Per Shuaibu, JCA.
Section 318 of the Constitution of the FRN 1999 (as amended) defines “public service of the state” to mean the service of the state in any capacity in respect of the Government of the State and includes clerk and staff of the House of Assembly, member of staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal, all other Courts established by the Constitution or the House of Assembly of a State, member or staff of any commission established by State, by the constitution or by law of House of Assembly, staff of Local Government Council, staff of statutory corporation, educational institution established or financed by government, staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest. It is apparent that a traditional office does not fall into any of these categories of public service of a State.
In the case of MAKAAN VS. HANGEM & ORS. (2018) LPELR 44401 (CA). It was contended bythe Appellant that the 2nd and 5th Defendants being creations of Sections 8 and 5 of the Council of Chiefs and Traditional Councils Law Cap 49 Laws of Benue State 2004 respectively and their functions respectively provided in Sections 9 and 4 of the same Law, they are public officers within the meaning of Section 3(1) of the Interpretation Law of Benue State 2004 and that they fall under the definition of public service as contemplated under Section 318(1)(c) of the Constitution. The appellate Court held that they are most likely not in the category of officers engaged in the service of the State in a civil capacity. These are not persons who can be held accountable to the high office and demands of a public service of a State. It was held that they are persons versed in traditional matters and whose assignment is to guide the State or Local Government council on such related matters. The appellate Court upheld the decision of the trial judge who considered the provisions of the Law and held that the 2nd and 5th Defendants were not public officers. The Court of Appeal per Otisi, JCA followed and relied on the decision of the Supreme Court where Uwaifo, JSC in EZE VS. OKECHUKWU (2002) 12 SCNJ 528 AT 274pronounced:
“The definition of public service in Section 277(1) of the 1979 Constitution which was then applicable was very wide. Even so, it did not include the office of traditional rulers.”
Otisi, JCA held in MAKAAN VS. HANGEM (supra) that:
“Not being public officers, the provision of Section 2(a) of the Public Officers Protection Law of Benue State, 2004 have no application in an action involving the 2nd and 5th Defendants.”
On the strength of the above decisions, in the instant appeal, this Court holds that the 1st Defendant/Respondent being a traditional ruler cannot be covered by the canopy of Public Officers Protection Law of Cross-River State. He is not a public officer under the law. This settles the 3rd issue against the 1st Defendant/Respondent and in favour of the Appellant.
With respect to issue 2, whether in consideration of the fact of this case, the action of the Appellant was statute-barred viz-a-viz the 2nd Defendant. In other words, wasthis action outside the 6 months time frame under Section 1 (a) of the Public Officers Protection Law of Cross-River State? There is no doubt the 2nd Defendant is a Public Officer within the intendment of Section 318 of the Constitution of the Federal Republic of Nigeria. The Certificate of Recognition was issued in favour of the 1st Defendant/Respondent on 22nd day of May, 2015. There is no doubt the issuance of this Certificate of Recognition is the subject matter of the substantive action against the Defendant. In other words, the cause of action arose on 22nd May, 2015 when the certificate was issued. The certificate was signed by Senator LiyelImoke, the Governor of Cross-River State at the material time.
This action was instituted on 1st of April, 2016. This was more than ten (10) months after the cause of action had arisen. This is clearly beyond the six months time frame provided under Section 1 (a) & (b) of the Public Officers Protection Law of Cross River State Law.
Where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute-barred, a Plaintiff who might have had a cause of action loses the right to enforce it by judicial process because the period of the time lay down by the limitation law as to the time for instituting the action has elapsed. See CBN VS. OKOJIE (2015) 14 NWLR (PT. 1479) 231 AT 268.
Having been determined that this action was filed outside the six months time frame under the Public Officers Protection Law of Cross-River State and the matter therefore, caught by the Limitation Law, the jurisdiction of the lower Court to adjudicate in respect of the substantive matter is therefore strangulated by operation of law. This is against the background that a successful defence under the provision of the Public Officers Protection Law (POPL) of Cross-River State ousts the jurisdiction of the Court. It is notable that one of the four conditions for the Court to exercise jurisdiction in a given case is that the suit must have been commenced by due process of law and upon fulfillment of any conditions precedent to assumption of jurisdiction. A suit commenced after the expiration of the time stipulated in the law cannot be said to have been commenced by due process. See SYLVA VS. INEC (2015) 16 NWLR (PT. 1486) 576 AT 620.
This Court had earlier held that the Public Officers Protection Law was not applicable to the 1st Defendant/Respondent. Does the decision in respect of the 2nd Defendant enure in respect of the 1st Defendant/Respondent? Ngwuta, JSC held in the case SYLVA VS. INEC (supra) that where Defendants are sued together for the same act and the public officers successfully raise the defence, the same enures to the benefit of the other Defendants. A successful defence under this Act thus ousts the jurisdiction of the Court.
The Appellant’s action having been held to be statute-barred by reason of the provisions of Section 1 (a) and (b) of the Public Officers Protection Law of Cross-River State, the lower Court no longer had jurisdiction in respect of the matter.
In the final analysis, this appeal fails in its entirety. The ruling of the lower Court delivered by Ofem I. Ofem, J., on 14th November, 2017 in suit No. HCA/10/2016 to the effect that the substantive action was statute-barred is hereby affirmed.
Parties to bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, S. A. Bola JCA. I agree with the reasoning and conclusion reached in the judgment.
I also agree that the appeal lacks merit and deserves being dismissed.
I abide with the order as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading the draft judgment of my learned brother, Samuel A. Bola, JCA just delivered. I agree with the reasoning and conclusion dismissing the appeal.
The question as to who is a public officer and whether his act was done in pursuance of execution of public duty or authority must necessarily resolve before the limitation period will apply. It was held in plethora of judicial decisions that a public office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so when he is paid out of a fund provided by the public. The term public officer referred to in the Interpretation Act can only be described to be referable to those enjoying employment with statutory flavour as contained in Section 318 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Thus, a public officer within the intendment of Section 318 (1) of the Constitution means:-
(a) Holders of offices as reflected only in Section 318 (1) of the Constitution aforesaid.
(b) Those officers whose employment enjoys statutory flavour as reflected in Section 318 (1) of the Constitution.
(c) The office must be a creation of the Constitution statute or enabling legislation.
(d) The functions duties and powers are defined by law and other regulation.
(e) The office must have some permanency.
(f) A person employed by the Public Service Commission of the Federation or State. See INEC V ORJI & ORS (2009) LPELR – 4320 (CA).
In the light of the above, I agree with my learned brother in the lead judgment that the 1st defendant in the lower Court that being a traditional ruler not protected by the Public Officers Protection Law of Cross-River State.
However, the protection given to the 2nd defendant enures to benefit him because they were sued together.This is so because where defendants are sued together for the same act and the public officers successfully raises the defence, the same enures to the benefit of other defendants.
I also dismiss the appeal and abide by the consequential orders.
Appearances:
H. E. Chukwu, Esq. For Appellant(s)
…For Respondent(s)
