BARRISTER YUSUF DANKOFA V FEDERAL REPUBLIC OF NIGERIAMarch 15, 2019
Legalpedia Electronic Citation: LER SC. 194/2008
AREAS OF LAW:
Action, Appeal, Constitutional Law, Court, Judgment And Order, Words And Phrases
SUMMARY OF FACTS:
The Federal Military Government of Nigeria, by the State’s Creation Transitional Provisions Decree No. 36 of 1999 created among others, Ekiti State with Ilejemeje Local Government Area, as one of the constituent Local Governments. Soon after the creation of the Local Government Area, its headquarter was established in Eda-Oniyo, where the Appellant herein is the paramount traditional ruler. The 3rd Respondent herein and the staff of the Local Government moved to Eda-Oniyo to set up all its required administrative machinery. Three months later, the Ekiti State Government through a radio announcement notified the general public that the Ilejemeje Local Government Headquarter had been relocated from Eda-Oniyo to Iye-Ekiti, hence; the 3rd Respondents moved to Iye-Ekiti and commenced operations from there. The Appellant, in protest contacted the office of the Head of State which informed him that the Federal Military Government had not ordered the relocation of the Local Government headquarter from Eda-Oniyo to Iye-Ekiti. All protest by the Appellant and his people to return the Local Government headquarters to Eda-Oniyo were rebuffed by the Ekiti State Government and its functionaries. The Appellant instituted an action by a writ of summons at the Ekiti State High Court seeking declaratory and injunctive reliefs among which is a declaration that by virtue of the State Creation and Transition Decree NO. 36, Volume 83 of 1996, Local Government (Basic Constitutional and Transitional Provision) Decree of 1997 and 1998, Eda-Oniyo is still the headquarters of Ilejemeje Local Government of Ekiti State. The trial court in a considered judgment granted all the reliefs sought by the Appellant except the relief seeking for perpetual injunction restraining the Defendants jointly and severally from carrying out the administrative activities of the Ilejemeje local Government in any other town apart from the Local Government Headquarters, which is Eda-Oniyo, Ekiti. Dissatisfied with the judgment of the trial court, the Respondents appealed against same to the Court of Appeal, contending that the trial court lacked jurisdiction to hear the matter on grounds that it was statute barred, the proper Defendants were not before the court and that the Appellant had no reasonable cause of action. The Court of Appeal in delivering its judgment by a panel different from that which heard the appeal held that the action had become statute barred as at the time it was instituted. After the delivery of the judgment the Court of Appeal discovered that Tijjani Abdullahi JCA contributed to the judgment in error as he did not take part in the hearing of the appeal. Parties were summoned to address the court on whether the appeal should be heard de novo or same should be rolled back and judgment delivered by the original party. After the address by counsel, the court in its ruling upheld the sanctity of the said judgment, hence, the instant appeal against the judgment and ruling of the Court of Appeal.
Appeal Allowed In Part
ISSUES FOR DETERMINATION
Was the decision of the Court of Appeal delivered on 6th March 2006 by a panel differently constituted from that which had heard the case a valid judgment within the meaning of the provisions of Section 294(2) of the constitution of the Federal Republic of Nigeria, 1999?
Was the Court of Appeal right in holding that the Public Officers Protection Act was applicable to this case and that the action of the plaintiff/appellant was statute barred?
DELIVERY OF JUDGMENT – SECTION 294 (1) (2) AND (3) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999
“Section 258(1)(2) and (3) of the 1979 Constitution of the Federal Republic of Nigeria, the extant constitution when the case of Shuaibu vs NAB Ltd (supra) was decided is in pari material with Section 294 (1)(2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria. This section provides as follows:¬
294 (1) Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
(2) Each Justices of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing or may state in writing that he adopts the opinion of any other Justices who delivers a written opinion: Provided that it shall not be necessary for all the Justices who heard a cause or mater to be present when judgment is to be delivered and the opinion of a justice may be pronounced, or read by any other Justice whether or not he was present at the hearing.
(3) A decision of a court consisting of more than one Judge shall be determined by the opinion of the majority of its members.”
– PER P.A.GALINJE, J.S.C
ESTABLISHMENT OF COURTS – PURPOSE OF ESTABLISHMENT OF COURTS
“Courts are established for the purpose of deciding the rights of disputing parties in order to terminate their disputes once and for all. Once a case has been rightly decided, the dispute should not be reopened by resort to legal technicalities”. PER P.A.GALINJE, J.S.C
LIMITATION OF ACTION – APPLICATION OF THE PUBLIC OFFICERS (PROTECTION) LAW
“Section 2 (a) of the Ekiti State Public Officers (Protection) Law provides as follows:
“2. 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 law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, (he following provisions shall have effect:-(
a) the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the ceasing thereof
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”
The proviso to Section 2 (a) of the Public Officers (Protection) Law does not apply to this case. However the provision of the law is very clear, and that is, where any action, prosecution or proceeding is commenced against any person, for any act done in pursuance or execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act neglect or default complained of or in the case of a continuance of damage or injury, within three months next after the ceasing thereof. PER P.A.GALINJE, J.S.C
LIMITATION OF ACTION – WHETHER LEGAL PROCEEDINGS CAN BE VALIDLY INSTITUTED OUTSIDE THE PERIOD OF LIMITATION PRESCRIBED BY A STATUTE
“The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the stipulated period by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. See Ibrahim vs JSC (1998) 14 NWLR (Pt. 584), at 32; Michael Obiefuna vs Alexander Okoye (1961) 1 ALL NLR 357; Fred Egbe vs Adefarasin (No. 2) (1985) 1 NWLR (Pt 3) 549; Fadare vs A.G Oyo State (1982) NSCC 643”. PER P.A.GALINJE, J.S.C
PUBLIC OFFICERS (PROTECTION) LAW – CONDITIONS THAT MUST EXIST BEFORE SECTION 2 (A) OF THE PUBLIC OFFICERS (PROTECTION) LAW CAN BE INVOKED
“For Section 2 (a) of the Public Officers (Protection) Law to avail any person, two conditions must be satisfied:-
(1) 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 duties within the meaning of that law,
(2) The act done by the person is in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority.
See Ekeogu vs Aliri (1990) 1 NWLR (Pt 126) 345.
The two conditions must be satisfied conjunctively before the protection under Section 2 (a) of Public Officers (Protection) Law will be invoked”. PER P.A.GALINJE, J.S.C
FINDINGS OF A COURT – STATUS OF THE FINDINGS OF A COURT NOT APPEALED AGAINST
“The law is settled that a finding of a court against which there is no appeal is treated as admitted. See Odedo vs INEC (2008) 17 NWLR (Pt 1117) 554 at 630 paras B – C; Bona vs Idakwo (2003) 11 NWLR (Pt 830) 53 at 83 paras E – F; Adejumo vs Ayantegbe (1989) 3 NWLR (Pt 110) 417; Okuoja vs Ishola (1982) 7 SC 314; Awote vs Owodunmi (1986) 5 NWLR (Pt. 45) 941; Atoyebi vs Gov., Oyo State (1994) 5 NWLR Z(Pt. 344) 290”. PER P.A.GALINJE, J.S.C
“PUBLIC OFFICE” AND “OFFICER” – DEFINITION OF “PUBLIC OFFICE” AND “OFFICER”
“The Black’s law Dictionary, 9th Edition at page 1351 defines Public Office as a position whose occupant has legal authority to exercise a government sovereign power for a fixed period. An officer is defined by the same dictionary at page 1193 as follows:-
“A person who holds an office of trust, authority or command. In public affairs, the term refers especially to a person holding public office under a national, state, or local government and authorized by that government to exercise some specific function.”
– PER P.A.GALINJE, J.S.C
PUBLIC OFFICERS (PROTECTION) LAW – PURPOSE OF THE PUBLIC OFFICERS (PROTECTION) LAW
“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 P.A.GALINJE, J.S.C
SPECULATIONS -ATTITUDE OF THE COURTS AND PARTIES TO SPECULATIONS
“The law is trite and well settled that the Courts and the parties in litigation do not act on speculations: Engr. Frank Okon Daniel v. I.N.E.C & OR. (2015) LPELR – 24566 (SC); Plateau State Government v. A.G., Federation (2006) 3 N.W.LR. (Pt. 967) 346; Ezerebo v. Ehindero (2009) 10 N.W.LR. (Pt. 1148) 166. The Courts act only on empirical facts provided by the parties”. PER E. EKO, J.S.C
STATUTES REFERRED TO:
Constitution of the Federal Republic of Nigeria (as amended) 1999
Court of Appeal Act (as amended)