THE EXCEPTIONS TO PUBLIC OFFICERS PROTECTION LAW IN NIGERIA

1.0 THE PUBLIC OFFICERS PROTECTION LAW

 

1.1 The Public Officers Protection Law is one of the statutes of limitation in Nigeria, it prohibits the institution of court action against a public officer after a period of three (3) months of the act or omission complained of. The right of the claimant or the injured person to commence or institute an action against a public officer after three (3) months of the act or omission complained of becomes extinguished by virtue of Section 2 of the Public Officers Protection Law, Vol.6  Cap P26 Laws of Lagos  State 2003*, which  provides:

“Where any action, prosecution or other proceedings is concerned against any person for any act done in pursuance or intended execution of any Act or Law or of any Public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect;

a. the action, prosecution or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof.”

1.2 The Supreme Court has made it clear that there is no distinction between “public offices” and “public officers” under the Public Officer (Protection) Law. In Ibrahim v. Judicial Service Committee Kaduna State & Anor. (1997 -1998) All NLR 302, Iguh JSC  in the leading judgment made the following illuminating pronouncement:

It is thus clear to me that the term “public officer” has by law been extended to include a “public department” and , therefore, an artificial person, a public officer or a public body. I do not  think that it can be suggested with any degree of seriousness that the Public Officer (Protection) Law Cap. 52 of  the Northern Nigeria, 1963 while it protects public officers, cannot in the same way protect a public department, an artificial person or public body, so long as they are sued for an act done in the execution of their public duties. Nor am I able to accept that Cap. 52 does not protect persons sued by their official titles, such as Attorney-General, Inspector- General of Police or Permanent Secretary. As I have repeatedly stated, the words of the Section of the law under interpretation are clearly not in themselves ambiguous. There is also nothing in either the long or short title as against the full context of the legislation, which suggests that any special meaning is to be given the words “any person” in that law other than their ordinary and plain meaning. I therefore find myself unable to introduce any limitation words to qualify the words “any person” in the legislation is issue.”

1.3 Therefore, it is settled law that, an action against a public officer for an act done pursuant to any public duty must be commenced within three (3) months following the act complained of.

1.4 Secondly, the Supreme Court has made it clear that there is no distinction between “public offices” and “public officers” under the Public Officer (Protection) Law.

 

1.5 However, the Public Officer (Protection) Law is intended as much as within the limits of the law to protect a public officer from detraction and unnecessary litigation but never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice. 

 

1.6 Consequently, the Public Officer (Protection) Law does not provide a blanket protection for “public offices” and “public officers”, there are exceptions to the protection provided for “public offices” and “public officers” under the Law. See Attorney-General of Rivers State v. Attorney-General of Bayelsa State & Anor. (2013) 3 NWLR (Pt.1340) 123 at 148, para. G. 

 

2.0 THE EXCEPTIONS

 

2.1 The Supreme Court in a number of cases has expounded and propounded a number of exceptions to the  protection provided for “public offices” and “public officers” under the Public Officer (Protection) Law. The following are some of such exceptions: 

a. Cases Of Continuance Of Damage Or Injury

 

b. A situation where the person relying on it acted outside the colour of his office or outside his Statutory or Constitutional duty.

 

c. Cases of recovery of land.

 

d. Breaches of contract.

 

e.  Claims for work and labour done.

 

f. Good faith 

 

2.2 CASES OF CONTINUANCE OF DAMAGE OR INJURY

 

2.2.1 In cases of continuance of damage or injury, the Public Officer (Protection) Law permits actions to be brought on the cessation thereof outside three months. This is the position of the law as expounded by GALADIMA, J.S.C, in the Leading Judgment in Attorney-General of Rivers State v. Attorney-General of Bayelsa State & Anor. (2013) 3 NWLR (Pt.1340) 123 at pages 148-149,paras.H-A:  

“In cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months. From the Amended Statement of Claim and as equally deposed to in his Counter-affidavit, the Plaintiff averred that he continues to be deprived of the allocation he is entitled to every month and the same has not ceased. I am of the respected view that in such a situation of continuance of damage or injury which has not ceased the Defence is not available to the 1st Defendant….”

2.2.2 See also Aremo II v. Adekanye (2004) All FWLR (Pt. 224) 2113 at 2132 and Battishill V. Reed (1856) 18 CB 696 at 714.

 

2.3 A SITUATION WHERE THE PERSON RELYING ON IT ACTED OUTSIDE THE COLOUR OF HIS OFFICE OR OUTSIDE HIS STATUTORY OR CONSTITUTIONAL DUTY

 

2.3.1 On this second exception GALADIMA, J.S.C, in Attorney-General of Rivers State v. Attorney-General of Bayelsa State & Anor.(supra) at page 149,paras F - G puts it thus:

“The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his Statutory or Constitutional duty as claimed by the Plaintiff in this suit. See: NWANKWERE V. ADEWUNMI (1967) NWLR 45 at 49; ANOZIE V. ATTORNEY-GENERAL OF THE FEDERATION (2008) 10 NWLR (Pt. 1095) 278m at 290 - 291.”

2.4 CASES OF RECOVERY OF LAND.

 

2.4.1 It is settled law that, the Public Officers Protection Law does not apply in cases of recovery of land. GALADIMA, J.S.C, in Attorney-General of Rivers State v. Attorney-General of Bayelsa State & Anor. (supra) at page 150,paras. A-C, held instructively thus:

“Again, the Plaintiff argues that the protection afforded Public Officers under the Act does not apply in cases of recovery of land. I have noted however, that the Plaintiff's action is related to recovery of land. The claim, particularly, of Oil wells fields are in issue, as well as the revenue therefrom.

In view of the foregoing and for the fact that the Plaintiff is mostly seeking for declaratory reliefs having to do with the claim of entitlement to derivative funds from the disputed Oil fields, which have fallen due and which they complained have not been paid, the Act cannot be invoked to defeat the grant of such reliefs.”

2.4.2 It is worthy of note that, the case of Attorney-General of Rivers State v. Attorney-General of Bayelsa State & Anor. (supra) was a case of boundary dispute between Rivers State (the Plaintiff) and Bayelsa State(the 1^st Defendant). The Honourable Attorney-General of Rivers State commenced an action on behalf of the Government of Rivers State, pursuant to the original jurisdiction conferred on the Supreme Court by Section 232 (1) of the 1999 Constitution, against the Attorney-General of Bayelsa State and the Attorney-General of the Federation, as Defendants respectively. 

2.4.3 In the Plaintiff's amended Statement of Claim in paragraph 77 thereof the reliefs sought against the Defendants are as follows: 

1. DECLARATION that the purported boundary between the Plaintiff State and the 1st Defendant State as shown in the 11th Edition of the Administrative Map of Nigeria does not represent the correct boundary between the Plaintiff State and the 1st Defendant State.

 

2. DECLARATION that the correct boundary between the Plaintiff state and the 1st Defendant is River Santa Barbara. 

 

3. DECLARATION that the 1st Defendant's claim to Soku Oil fields in the Plaintiff's territorial jurisdiction is false, wrongful, illegal, unconstitutional, vexatious, null and void and of no effect whatsoever.

 

4. DECLARATION that the Soku Oil Fields/Oil Wells are situated within the territorial boundaries of Rivers State of Nigeria.

 

5. DECLARATION that the Plaintiff State is entitled to all the revenue that has accrued and is accruing to the Federation Account from the said Soku Oil Fields/Oil Wells from July, 2005, by reason of the derivation principle stipulated in Section 162(2) of the Constitution of the Federal Republic of Nigeria, 1999.

 

6. DECLARATION that all accrued revenues from the Soku Oil Fields/Oil Wells however arisen and either being kept in the account known as "Rivers State/Bayelsa States Excrow account" or in any other account be released forthwith to the Plaintiff, with all accrued interest thereon.

 

7. AN ORDER against the 2nd Defendant for account of revenue that has accrued to the federation account from "Soku" Oil field/wells on the basis of the derivative principle, from July, 2005 which Rivers State should have received but for the wrongful payment of same by the 2nd Defendant to the 1st Defendant.

 

8. AN ORDER for payment by the 2nd Defendant to the Plaintiff of any sums due from the Federation Account to Rivers State upon the taking of such account.

 

9. OR IN THE EVENT THAT all sums found due upon the taking of such account have been paid to the 1st Defendant, then AN ORDER directing the 1st Defendant to pay and/or refund to the Plaintiff all the revenue wrongly paid to the 1st Defendant from the Federation Account in respect of the Soku Oil Fields/Wells from July, 2005.

 

10. FURTHER to relief (i) AN ORDER directing the 2nd defendant to cause to be deducted from the statutory allocation of the 1st defendant and paid over to the plaintiff any sums due from the Federation Account to the plaintiff state upon the taking of such account.

 

11. AN ORDER OF PERPETUAL INJUNCTION restraining the Federal Government of Nigeria by itself, its servants agents or privies and all its agencies or departments and functionaries howsoever called or described from allotting or continuing to allot the Soku Oil Fields/Oil Wells or all revenues derived from the Oil Fields/Oil Wells to the 1st Defendant.

 

12. AN ORDER directing the Federal Government of Nigeria by itself its servants, agent's or privies and all its agencies or departments and functionaries howsoever called or described to continue to pay to Plaintiff State all revenues and/or proceeds accrued and/or derived from Soku Oil Fields/Oil Wells."

 

2.4.4 The Supreme Court did not grant the reliefs sought by the   Plaintiff on the ground that it does not feel comfortable to do so, due to the conflicting maps tendered in evidence before it. However, the issue can be revisited after the National Boundary Commission concludes its exercise of the delineation of the disputed boundary to it finality. See Galadima,JSC at page 155 -156,paras.F-B, where his Lordship concluded the leading judgment thus:

“I have observed the 12 different maps tendered for our consideration are conflicting and contradictory, the evidence of the Surveyors-General of the respective States of the Plaintiff and 1st Defendant is contradictory and totally at variance with each other; the technical reports dealing with the geographical indices measurements and projections of Isobaths and some distances supporting the parties case are contradictory.

It is on account of the foregoing and because of the technical nature of the dispute and the claims of the parties this Court finds that the NBC as an authority vested with authorities and expertise know-how in dealing with this matter should have once and for all conducted an exhaustive exercise of delineating the disputed boundary. Hence the long-awaited 12th Edition of the Administrative Map when completed soonest would have been of tremendous assistance in settling this lingering dispute. In the light of the observations I have clearly expressed above I do not feel comfortable to grant the declarations sought until the NBC concludes its exercise of delineation of disputed boundary to finality. It will be futile and premature to determine the boundary of the two parties States in the present circumstances. However, the appropriate order to be made in the prevailing circumstance is that of striking out the Plaintiff's suit, and I so order accordingly. Each party to bear its costs.”

2.5 BREACHES OF CONTRACT.

 

2.5.1 It is also settled law that, the Public Officers Protection Law does not apply in cases of breaches of contract. In Bureau of Public Enterprises v. Reinsurance Acquisition Group Ltd & Ors. (2008) LPELR-CA/A/195/M/05, MARY U. PETER-ODILI, J.C.A. (as she then was ) in the Leading Judgment relied on the dictum of Mohammed JSC in FGN v. Zebra Energy Ltd. (2002) 18 NWLR (pt.798) 162 at 196  and pronounced that:

“The provisions of the Public Officers Protection Law are not absolute. The provisions do not apply in actions for recovery of land, breaches of contract, claims for work and labour done. See Okeke v. Baba (2000) 3 Soule v. L.E.D.B. (1965) LIR 118; Salako v. L.E.D.B. (1953) 20 NLR 169.

The Public Officers Protection Act was not intended by the Legislature to apply to contract. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done.”

2.5.2 Likewise, in the case of  Nigerian Ports Authority v. Construzioni General Farsura Cogefar Spa & Another (1974) 1 All NLR, 463, it was held that, an action for breach of contract does not fall within the contemplation of Section 2(a) of the Public Officer (Protection) Law.

 

2.6 CLAIMS FOR WORK AND LABOUR DONE

 

2.6.1 It is glaring from the cases of Bureau of Public Enterprises v. Reinsurance Acquisition Group Ltd & Ors. (supra) and FGN v. Zebra Energy Ltd. (supra) that, the provisions of the Public Officers Protection Law does not apply not only to cases of recovery of land, breaches of contract but also for claims for work and labour done. See also Osun State Government v. Dalami Nigeria Limited (Suit No: SC. 277/2002).

 

2.7 GOOD FAITH 

 

2.7.1 In Inspector General of Police v. Olatunji 21 NLR 52 it was held that, the protection under Public Officers Protection Law is only available to a public officer who acted in good faith in the execution of his public duty. 

Akintunde Esan, Solicitor, Advocate and Chartered Mediator, Managing Partner at Ase Olodumare Chambers a Lagos based Commercial and  Dispute Resolution Law Firm. 

*NOTICE: The Public Officers Protection Law, Vol.6  Cap P26 Laws of Lagos  State 2003 has been repealed. Read More.... LIST OF LAWS REPEALED/OMITTED FROM 2015 LAWS OF LAGOS STATE, NIGERIA