AFOLABI KASALI v. ACCESS BANK PLC
April 24, 2025AHMADU FALKE vs BILLIRI LOCAL GOVERNMENT COUNCIL & ORS
April 24, 2025Legalpedia Citation: (2016) Legalpedia (CA) 16811
In the Court of Appeal
HOLDEN AT OWERRI
Wed May 25, 2016
Suit Number: CA/OW/425/2013
CORAM
PARTIES
PROFESSOR MVENDAGA JIBO
MINISTRY OF EDUCATION & ORS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Appellant was the former Pro-Chancellor/Chairman of the Governing Council of the 3rd Respondent. One aspect of the matter was that he was relieved of his position following the dissolution of the Governing Council of the 3rd Respondent by the 4th Respondent. The other aspect of the matter was that the Visitation Panel constituted by the 4th Respondent to look into the affairs of the 3rd Respondent in its Report made remarks which the Applicant found distasteful. The Visitation Panel Report was released in June 2011. Aggrieved by these developments, the Appellant instituted a suit at the Federal High Court claiming against the Respondents jointly and severally; a declaration that the purported dissolution of the Governing Council of the Michael Okpara University of Agriculture, Umudike, chaired by the Plaintiff by the 4th Defendant upon the advice of the 1st Defendant on 19th October, 2011 is unconstitutional, illegal, capricious, oppressive, mala fide, ultra-vires the powers of the 4th Defendant and in reckless disregard of the enabling Act, the Universities (Miscellaneous Provisions) Act 1993 (as amended) and the White Paper which did not approve the recommendation for the removal of the Plaintiff but only noted it and is therefore null and void and of no effect whatsoever, a declaration that the tenure of the Governing Council of the Michael Okpara University of Agriculture, Umudike which the Plaintiff is the Chairman, and which tenure is for a four year period is still subsisting having commenced from February, 2009 and shall only elapse on 19th February, 2013 as prescribed by the Enabling Act, The Universities (Miscellaneous Provisions) Act, 1993 as amended, a declaration that the visitation panel comprising the 5th to 11th Defendant acted mala fide and under corrupt influence and was therefore biased in its findings and recommendations by singling out the Plaintiff from 20 members of the Governing Council and Principal Officers of the 3rd Defendant to recommend his removal on the ground of management style and not on the ground of corruption and incompetence, which is the only valid ground that a Chairman of Council can be removed under the enabling Act, among other reliefs. The Plaintiff, alternatively claimed the sum of Four Million, Six Hundred and Forty Thousand, Forty-Three Naira and Seventeen Kobo, (N4, 640,043.17), being special damages for illegally and unlawfully interfering with the tenure of the Plaintiff as the Pro-Chancellor and Chairman of the Governing Council of the Michael Okpara University of Agriculture Umudike, the sum of Five Hundred Million Naira (N500, 000,000.00), being exemplary and aggravated damages and the cost of the action. The 2nd, 5th -11th Defendants/Respondents filed a Notice of Preliminary objection on the ground that the Plaintiff’s claim was statute barred and that the court lacked the jurisdiction to entertain the matter which they contended is a labour or industrial dispute. After the close of trial, the court dismissed the Plaintiff/Appellant’s case on grounds that the suit was statute barred. Aggrieved by the said judgment, the Appellant brought this appeal.
HELD
Appeal Dismissed
ISSUES
Whether or not the trial Federal High Court was right in dismissing the Appellant’s matter before it instead of transferring same to the National Industrial Court after holding that it lacked the jurisdiction to hear and determine same. Whether or not the Appellant’s action was statute barred by virtue of the Public Officers’ Protection Act, in view of his allegations in his originating processes that the Respondents’ acts complained of were in bad faith, ultra vires their powers and outside the scope of their duties.
RATIONES DECIDENDI
SECTION 2(A) OF THE PUBLIC OFFICERS (PROTECTION) LAW- CONDITIONS PRECEDENT TO THE APPLICATION OF SECTION 2(A) OF THE PUBLIC OFFICERS (PROTECTION) LAW
“In the case of Central Bank Of Nigeria vs. Ukpong 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”
PUBLIC OFFICER – DEFINITION OF A PUBLIC OFFICER
“The question of who is a public officer and whether his act was done in pursuance of execution of any law, public duty or authority, must be resolved before the limitation period will apply. On the question of the definition of a Public Officer it may be proper to disclose at this point that the Act did not define who a Public Officer is; but the decisions of the Nigerian Courts, including the Supreme Court followed the English common law interpretation of a Public Officer in the cases of R vs. Bembridge(1783) 3 DOUG KB 32; R vs. Whitaker (1914) KB 1283 thus:
A public office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public. Apart from this, the Interpretation Act Cap 149 LFN 1990, that also defines a Public Officer thus;
A Public Office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.
See the case of Asogwa vs. Chukwu (2003) 4 NWLR (PT. 811) 540 AT 551 where this Court per Aboki JCA defined a Public Officer thus;
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.
In the case of Chief John Eze vs. Dr. Cosmas I. Okechukwu (1998) 5 NWLR (PT. 548) 43 AT 73 the Court was of the view that a ‘Public Officer’ is a holder of a public office in the public sector of the economy as distinct and separate from the private sector and that he is entitled to some remuneration from the public revenue or treasury. In addition that he has some authority conferred on him by law, with a fixed tenure of office that must have some permanency or continuity; above all else that a public officer has the power to exercise some amount of sovereign authority or function of government. It is, however important to note that the ratio in the case of Ibrahim vs. Judicial Service Committee, Kaduna State (Supra) has been followed and applied in a number of cases ever since.”
“PERSON”- DEFINITION OF THE WORD “PERSON”
“The word ‘Person’ for instance, was defined in the case of Kasandubu vs. Ultimate Petroleum Ltd (2008) 7 NWLR (PT. 1086) CA 274 to mean both artificial and natural persons and includes sole or public bodies-corporate or incorporate. More importantly, the word ‘person’ is the decision of the Supreme Court in the case of University Of Jos vs. Ikegwuoh (2013) 9 NWLR (PT. 1360) 478, the phrase; ‘any person’ used in Section 2 of the Act was held to apply to both natural persons or human beings or persons sued in their natural names, and also artificial persons, public bodies or body of persons, whether sued by their official titles or not. See also Adio Suleiman vs. Kwara State Polytechnic (2006) LPELR-11648(CA).”
PUBLIC OFFICER – INSTANCE WHERE A PUBLIC OFFICER’S ACT WOULD BE SAID TO HAVE BEEN DONE IN PURSUANCE OF THE EXECUTION OF ANY LAW, PUBLIC DUTY OR AUTHORITY
“On the question of when the Public Officer’s act would be said to have been done in pursuance of the execution of any law, public duty or authority, it may well be necessary to go over a few popularly decided cases on the subject preparatory to the analysis to be conducted by this Court on the subject. In the case of Ekeogu vs. Aliri (1991) 3 NWLR (PT.179) 258 the Supreme Court held the view that the Act is designed to protect a public officer against any action, prosecution or other proceeding; and for any act done in pursuance of or execution of any law, public duty, or authority; or for any alleged neglect or default in the execution of any law, duty or authority. In Fasoro vs. Milborne (1923) 4 NLR 85, where a District Officer ordered a policeman to slap the Plaintiff, the suit against him was commenced three months after the incident of assault and no reasons was given for the delay in commencing the action. The suit was of course rightly held to be statute barred. In the case of Obiefuna vs. Okoye (1965) ALL NLR 357 the Plaintiff was injured while driving his motor bike, which was knocked down by the defendant who was in turn was driving a police truck. He commenced the proceedings after three months of the accident, because he had been in hospital for treatment all the time. The Court held that his claim must fail as one that is statute-barred. The single thread, which seem to have linked majority of the cases decided under in relation to the Protection accorded the Public Officer under the provision of Section 2 of the Public Officers protection Act is that the express letters of the statute had to be adhered to despite the yearning expectation of justice by the aggrieved.”
LIMITATION PERIOD- IMPLICATION OF NON-COMPLIANCE WITH THE LIMITATION PERIOD FOR COMMENCING AN ACTION AGAINST A PUBLIC OFFICER
“See in this connection, the case of Ekeogu vs. Aliri (Supra), the Plaintiff was injured in the eye by her class teacher in a public school. She went through different hospitals for treatment during which time three months had passed. But, quite unfortunately, she lost the eye. She sued for damages by her next friend (the mother). It was held that the action was statute barred. Perhaps, the proper way to see the problems usually posed under the Act, is that the limitation period of three months within which actions may be brought is the crux of the matter and for which the Courts would not compromise. In the more recent decision of the Courts on the subject, the position has not changed. See the case of – Sulgrave Holdings Inc & Others vs. FGN & Others (2012) 17 NWLR (PT. 1329) 309 AT 334 where the Supreme Court per Galadima, JSC had this to say;
The Public Officers Protection Act is a statute of limitation and the import of Section 2(a) thereof, is that where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance of execution of any law or of any default in the execution of any 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 or in the case of continuing damage or injury within three months next after the ceasing thereof. What this means is that Public Officers Protection Act removes the right of action, the right of enforcement act and the right to judicial relief in a plaint. This leaves Respondents with a bare and empty or hollow cause of action which he cannot enforce because the alleged cause of action is statute-barred and cannot be maintained. See Fadare vs. Attorney-General Of Oyo State (1982) 4 SC 1; Obiefuna vs. Okoye (1964) 1 ALL NLR 96; Egbe vs. Adefarasin (NO 1) 1985) 1 NWLR (PT. 3) 549.”
ILLEGALITY OF THE ACT OF A PUBLIC OFFICER- CIRCUMSTANCE WHERE THE VALIDITY OR ILLEGALITY OF THE ACT OF A PUBLIC OFFICER WOULD COME UP FOR CONSIDERATION
“It should perhaps, be stated here that the only way the validity or illegality of the act of a public officer would come up for consideration is where an action was filed within the prescribed three months period anything short of that is bound to fail. See the case of Egbe vs. Adefarasin (1985) 1 (PT. 3) 549 AT 569 where the Supreme Court held as follows:
“It is on the facts clear that Appellant has no cause of action against 2nd Respondent having not brought the action within the prescribed period of three months from the accrual of the cause of action (See Adeyemo vs. Adegboyega & Commissioner Of Police (1973) VOL. 3, PART 11 ECSLR. 991, Olatawura, J.).”
SECTION 2(A) OF THE PUBLIC OFFICERS (PROTECTION) LAW – INTERPRETATION OF SECTION 2(A) OF THE PUBLIC OFFICERS (PROTECTION) LAW
“Once again in the case of Egbe vs. Alhaji (1989) 1 NWLR (PT. 128) 546 AT 584, the Supreme Court per Nnamani, JSC was rather straightforward on the issue when he clearly puts it across thus:
It does appeal to me that the words used in this legislation are plain and ought to be given their ordinary meaning. It is indeed the first rule of interpretation of statues that statutes are to be construed in their ordinary and natural meaning of the words. See Attorney-General vs. Mutual Tontine Westmister Chamber Association Ltd (1976) 1 EX. D. 469. It is also a rule of interpretation to assume that, the legislature mean what they have actually expressed. See R. vs. Banbury 2(a), there is no bad faith or good faith contained therein expressly. What seems to standout so vividly are the words shall not lie unless commenced within three months it seems to me that this is more a provision of limitation and is only of defense in the sense that a person sued after three months can rely on it to have the suit dismissed. In my view, the mandatory provision shall not lie indicates that the action cannot be maintained or cannot take off unless brought within three months. In my view, it is only when such action can be maintained, i.e. where there is a cause of action that the question of whether the action complained of was done in the execution of a public duty can be canvassed. To give an interpretation which allows examination of whether the action complained of was done in the execution of a public duty with reference to whether would mean that a public officer can even be used several years after his retirement for an action which he carried out in the execution of his public duty. That to my mind would completely destroy the main protection which the statue gives a public officer.””
PUBLIC OFFICER – INSTANCE WHEN AN ELEMENT OF BAD FAITH, MALICE AND EXERCISE OF POWER WITHOUT AUTHORITY CAN BE PROPERLY RAISED AGAINST A PUBLIC OFFICER
In his own contributions in Egbe vs. Alhaji (Supra) AT P. 512 UWAIS, JSC (as he then was) was rather terse when he said:
“In a civil action, when the Defendant invokes in limine, the provisions of the Public Officer Protection Act, it is not proper for the trial Court to conclude or infer from the pleadings that the protection afforded the Defendant by the Law has been vitiated by malice or bad faith. What the trial Court is obliged to decide at that stage in whether the action is maintainable and not whether the Defendant is liable.”
Arising from the foregoing, I cannot help but to agree entirely with learned Respondents Counsel on the fact that the element of bad faith, malice, ill motive, deliberate exercise of power without authority and such like can conduct raised against the Respondents can only be raised if the suit is filed within the three months period. Where the cause of action is already statute barred it would be needless waste of time under the scheme of things. In the case of Fajimolu vs. University Of Ilorin (2007) ALL FWLR (PT. 350) 1351 AT 1374-1375 this Court per OGUNWUMIJU, JCA had this to say:
“Where the protection is not raised as a shield in limine and is merely pleaded, and issues are joined and evidenced led on it by the parties, the trial Court is entitled to examined the circumstances under which the cause of action of the act complained of was performed, in order for it, in determining liability; to decide whether the protection has been vitiated by malice or bad faith.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (As amended)|
Federal High Court (Civil Procedure) Rules 2009|
Interpretation Act Cap 149 LFN 1990|
National Industrial Court Act Cap N155 LFN 2004|
National Industrial Court Rule 2009|
Public Officers Protection Act, Cap. P41 LFN 2004|
