3PLR - ALAPIKI V. THE GOVERNOR OF RIVERS STATE - Judgements

11/7/2018 3PLR – ALAPIKI V.
THE GOVERNOR OF RIVERS STATE – Judgements
Home Laws Judgments Law Firms & Lawyers Attorneys-General Standards Government & Election
Law Education Nigerian Law Publications
3PLR – ALAPIKI V. THE Trending

Stories
GOVERNOR OF RIVERS STATE 3PLR – KANO
Published by  Law Nigeria Admin at  October 4, 2018 Tags  Categories  TEXTILE
PRINTERS PLC V.
GLOEDE AND
HOFF NIGERIA
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS LIMITED
[PDF copy of this judgment can be sent to your email for N300 only. Just order through
Of ine 3PLR -KANO
lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
STATE URBAN
DEV.BOARD V.
ALAPIKI
FANZ
V. CONSTRUCTION
CO.LTD
THE GOVERNOR OF RIVERS STATE
COURT OF APPEAL 3PLR – JUMANG

SHELIM & ANOR
(PORT HARCOURT DIVISION) V. FWENDIM
GOBANG
FRIDAY, 26H APRIL, 1991.
3PLR/1991/39 (CA)
OTHER CITATIONS
8 NWLR (PT. 211) 575
BEFORE THEIR LORDSHIPS
MICHAEL EKUNDAYO OGUNDARE, J.C.A. (Presided and Read the Leading Judgment)
OWOLABI KOLAWOLE, J.C.A.
BRAIMAH AMEN OMOSUN, J.C.A
BETWEEN
1. G. ALAPIKI
AND
1. THE GOVERNOR OF RIVERS STATE
2. RIVERS STATE CIVIL SERVICE COMMISSION

Subscribe!
http://judgements.lawnigeria.com/2018/10/04/3plr-alapiki-v-the-governor-of-rivers-state/ 1/20
11/7/2018 3PLR – ALAPIKI V. THE GOVERNOR OF RIVERS STATE – Judgements
REPRESENTATION
S.J. Ofoluwa, ESQ. (with him, E. Ogbonna ESQ.) – for the Appellant
L.V.C. Atata, ESQ., Principal State Counsel, Ministry of Justice, Rivers State – for the Respondent
MAIN ISSUES
ACTION – Action against an office – Nature of
ADMINISTRATIVE LAW -Action against State Governor for wrongful termination – Governor relying on
Public Officers (Protection) Law – Whether law applies to cases founded on contract.
ADMINISTRATIVE LAW -Action against State Governor for wrongful termination of appointment –
Governor relying on Public Officers (Protection) Law – Absence of any law empowering Governor to
terminate appointment – Whether termination a public duty protected by law.
ADMINISTRATIVE LAW -Action against State Governor for wrongful termination of employment – Action
commenced more than 3 months after termination – Governor relying on Public Officers (Protection)
Law -Whether Governor a “Public Officer” protected by the law.
Of ine
ADMINISTRATIVE LAW – Distinction between an office and an holder of the office.
ADMINISTRATIVE LAW – Exercise of powers by State Governor-Duty to comply with relevant statutes –
Failure of compliance – Effect thereof.
ADMINISTRATIVE LAW – Governor of a State – Legal personality of
ADMINISTRATIVE LAW – Governor of a State -Need to obey and comply with the law.
ADMINISTRATIVE LAW – Laws of the State – Duty on Governor to comply therewith.
INTERPRETATION OF STATUTES – “Person” as used in statutes – How, interpreted.
LEGAL PERSONALITY – Office of State Governor – Legal personality of – Distinction between the office
and the holder thereof.
PUBLIC OFFICERS -Public Officers (Protection) Law – Act in question not done in pursuance of any law –
Whether still protected.
PUBLIC OFFICERS – Public Officers (Protection) Law – Distinction between Nigerian Statutes and English
Public Authorities Protection Act 1893 -Need for care in relying on cases decided on the basis of the
latter.
PUBLIC OFFICERS – Public Officers (Protection) Law – Whether applicable to cases founded on contract.
PUBLIC OFFICERS – Public Officers (Protection) Law – Whether protects office of State Governor.
PRACTICE AND PROCEDURE – ACTION – Action against State Governor for wrongful termination –
Governor relying on Public Officers (Protection) Law – Whether law applies to cases founded on contract.
WORDS AND PHRASES – “Person” as used in Public Officers (Protection) Law – Meaning of.
MAIN JUDGEMENT
OGUNDARE, J.C.A. (Delivering the Leading Judgment):
The only issue calling for determination in this appeal is as to whether the Governor of Rivers State is a
“public officer” within the meaning of the expression in the Public Officers (Protection) Law Cap 106
Laws of Easter Nigeria Volume 6, 1963 and, if so, whether he is protected by the Law in the
circumstance of this case.
Subscribe!
The appellant (who was plaintiff in the court below) was at all times relevant to this case, a civil servant
in the employ of the Rivers State Public Service, having been employed in 1949. His appointment was
terminated by the 1st respondent with effect from 29th September, 1981 by a letter dated 10th
November 1981. He instituted the action leading to this appeal challenging the validity of the
termination of his appointment.
By paragraph 12 and 13 of his amended Statement of Claim, the appellant pleaded thus –
“12. However, by a letter dated 10th November, 1981 bearing ref: P.663/121 the then Civilian
Governor of Rivers State purported to terminate the appointment of the plaintiff.
“13. The plaintiff will contend at the trial that:
(i) the then Civilian Governor of the Rivers State has no powers to terminate his appointment.
(ii) the purported termination is against the Constitution of the Federal Republic of Nigeria and also
against the Civil Service Rules.
(iii) no charge was ever levelled against the plaintiff by the 2nd defendant.
(iv) the plaintiff was never told either orally or in writing that he was to be dismissed or terminated.
Wherefore the plaintiff’s claim against the defendants jointly and severally is for:
Of ine
(i) A declaration that the termination of the plaintiff by the Civilian Governor of the Rivers State in
1981 is null and void and of no effect whatsoever.
(ii) A declaration that the plaintiff is still a member of the Rivers State Civil Service holding the
substantive post of Higher Executive Officer thereof and therefore entitled to be paid his salaries and
entitlements by virtue of the said employment.
(iii) An Order that the plaintiff be re-instated with immediate effect.” In their amended statement of
defence, the respondents (who were defendants in the court below) for their part pleaded inter alia as
follows:
“1. The plaintiff who was originally employed as a clerk in the Ahoada Local Government Council
became integrated into the Rivers State Public Service in April, 1972.
2. The defendants are all Public Officers and they work in the service of the Rivers State Government.
3. At all times material to this case the 1st defendant has been the executive head of the Rivers State
and as the executive head he had a constitutional duty to see to the execution of the laws of the
State as well as ensuring that the State executive machinery works efficiently and it is also free of
fraudulent or corrupt elements.
4. In his letter dated 17th May, 1981 addressed to the Chairman of the Civil Service Commission the
plaintiff accepted his termination and applied for his gratuity to be paid to him. By the contents of
that letter, which shall be founded upon at the trial, the plaintiff approbated the action of the
defendants and he cannot therefore reprobate it by the reliefs he seeks.
5. The defendants contend and shall contend at the trial that the plaintiff’s action is statute-bared by
virtue of the provisions of the Public Officers Protection Law.”
At the trial appellant gave evidence and closed his case. One witness gave evidence for the respondents.
After addresses by learned counsel for the parties the learned trial Judge, in a reserved judgment after
finding as follows:
“Plaintiff said he was dismissed without cause, he did not know his error, he was not heard, no oral
evidence was taken from him, his evidence was not challenged.
In the realm of ADMINISTRATIVE law, a cardinal principle that no person shall be condemned unheard is
implicit in the concept of fair hearing by any authority, the principle of audi alterem partem must be
applied and must not be excluded. This principle applies not only when issue involves the determination
of a lis inter parties, but also when an ADMINISTRATIVE body is exercising judicial functions in the sense
that it has to decide on the materials before it between an allegation and a defence. The concept is that
the duty placed on such a body is to act fairly in all cases. The Governor did not interrogate him, the
Subscribe!
Head of Service did not interrogate him, the Civil Service Commission did not interrogate him, he was
just brushed out from the Civil Service. It is unfortunate. I think the plaintiff had a right to remain in the
service until he is properly removed.”
however, dismissed the action for the following reason given by him –
“But I think, that right had been defeated by his delay to bring this action. Indeed the action is long out
of time. It was instituted twelve months after the time allowed by Statute. The Governor is a public
officer so he is protected by the Public Officers Protection Law which I have reproduced above, the
Rivers State Civil Service which in this action is on the same pedestal with the Governor will rise or fall
with the Governor and so can equally claim protection under the same law. By that protection, the
plaintiff cannot maintain this action against the defendants so that his right or remedy is defeated by
effluxion of time.”
Earlier in the judgment, the learned trial Judge had examined section 2 of the Public Officers Protection
Law and concluded that the 1st Respondent is a public officer within the meaning of that expression in
the Law. He found as follows:
In the course of his address, Counsel for the defence, Mr. Addai Mensah submitted that the action was
statute barred, it was commenced on 9th February 1983, that is fifteen months after the cause of
action, that is, after the termination of appointment of the plaintiff on 10th November, 1981, instead of
the period of three months allowed by law. which could be February, 1982. He argued that the
Defendants are Public Officers and that an action can only be brought against Public Officers Of ine
within
three months of the cause of action. He rested his argument on Section 18 of the interpretation Act of
1964 and on Section 2 Cap. 106 Laws of Eastern Nigeria Volume 6 1963 applicable to Rivers State.
In Section 18 of the Interpretation Act No. 1 of 1964 Laws of the Federation of Nigeria, a Public Officer
is defined as “member of the public service of the Federation within the meaning of the Constitution of
the Federation or of the public service of a Region (State) within the meaning of the Constitution of the
Region” (State).
In Section 2 Cap 106 Laws of Eastern Nigeria Vol. 6 1963 the limitation of time for actions against public
Officers is expressed in sub-section (1) as follows:
“where any action prosecution or other proceedings 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. the
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 act, neglect or default complained of, or in case of a continuance of damage
or injury, 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;
This defence was also pleaded in paragraph 11 of the amended statement of defence that:
It is therefore of primary importance to determine the situation of the defendants as to whether they
are public officers or not so as to claim the protection afforded to such officers under the law. Who then
is a public officer? To get the answer it is relevant to read Section 277 of the Constitution of the Federal
Republic of Nigeria 1979, it is stated there that a “public service” means the service of the state in any
capacity in respect of the government of the State and includes service as –
(a) Clerk or other staff of a House of Assembly.
(b) member or staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal or
other Courts established for a State by this Constitution or by a House of Assembly.
(c) member or staff of any commission or authority established for the State by this Constitution or
by a Law of a House of Assembly.
Subscribe!
(d) staff of any local government council or statutory corporation established by a Law of a House of
Assembly. (e) staff of any educational institution established or financed principally by a government of
a State.
(f) staff of any company or enterprise in which the government of a state or its agency holds
controlling shares or interest;
So to be a public officer a person must fall within the definition of that section.
In my opinion formed after reading that definition, the Governor could be said to be a public officer.”
It is to be noted that there has been no appeal against the findings of fact made by the trial Judge.
It is this conclusion that has come under challenge in this appeal. Learned counsel for the parties filed
and exchanged their respective briefs of argument. At the oral hearing of the appeal before us, both
counsel adopted and relied on their respective briefs. Appellant’s counsel, Mr. Ofoluwa also relied on his
reply brief. In addition, he cited to us three authorities additional to those contained in his briefs, to wit:
M. A. Eleso v. Government of Ogun Store & Ors (1990) 2 NWLR (Pt.133) 420,437 E-F and 443 F-H;
Nwosu v. Imo State E.S.A. (1990) 2 NWLR (Pt.135) 688,725 A-C; F.C.DA. v. Naibi (1990) 3 NWLR
(Pt.138) 270. Mr. Ofoluwa urged the Court to allow the appeal, set aside the judgment of the court
below and enter judgment for the appellant in terms of his claims.
Mr. Atata, learned Principal State Counsel (Rivers) for the respondents cited to us an additional
Of ine
authority, that is to say N.B.C v Bankole (1972) 4 SC 94, 100104. He submitted that the “Governor” was
a public officer within the meaning of the Public Officers (Protection) Law. He also submitted that the
Law protected public duties done both in tort and contract. He urged the Court to dismiss the appeal.
In his amended Notice of Appeal, appellant put forward two grounds of appeal he relies on in his
contention that the judgment of the court below be set aside. The two grounds read:
“1. The Learned trial Judge erred in Law in dismissing Plaintiff/ Appellant’s Case after upholding his
main contentions, on the ground that the Governor (1st Respondent) is a Public Officer and is thus
protected by the Public Officers Protection Law when from the facts and circumstances of the case the
Public Officers Protection law does not apply.
PARTICULARS OF ERROR
(i) The Governor is not a person employed by the Rivers State Civil Service Commission and
therefore not a public Officer.
(ii) By Section 183 Part I l of the 3rd Schedule to the 1979 Constitution of the Federal Republic of
Nigeria the Rivers State Civil Service Commission in the discharge of its functions is not subject to the
direction and control of any authority or person.
(iii) By the said Section 183 of the 3rd Schedule to the 1979 Constitution, the Governor is not an
appropriate person or authority to terminate, discipline or dismiss the Plaintiff/ Appellant.
(iv) The Governor does not come within the classes of persons or authorities defined under Section
174 of the 1979 Constitution of the Federal Republic of Nigeria as Public Officers; the office of Governor
being an office or institution specifically created by 5.162(1) of the aforesaid
In my opinion formed after reading that definition, the Governor could be said to be a public officer.”
It is to be noted that there has been no appeal against the findings of fact made by the trial Judge.
It is this conclusion that has come under challenge in this appeal. Learned counsel for the parties filed
and exchanged their respective briefs of argument, At the oral hearing of the appeal before us, both
counsel adopted and relied on their respective briefs. Appellant’s counsel, Mr. Ofoluwa also relied on his
reply brief. In addition, he cited to us three authorities additional to those contained in his briefs, to wit:
M. A. Eleso v. Government of Ogim State & Ors (1990) 2 NWLR (Pt. 133) 420,437 E-F and 443 F-H;
Nwosu v. Into State E.S.A. (1990) 2 NWLR (Pt.135) 688,725 A-C; F.C.D.A. v. Naibi (1990) 3 NWLR
(Pt.138) 270. Mr. Ofoluwa urged the Court to allow the appeal, set aside the judgment of the court
below and enter judgment for the appellant in terms of his claims.
Subscribe!
Mr. Atata, learned Principal State Counsel (Rivers) for the respondents cited to us an additional
authority, that is to say N B.C v Bankole (1972) 4 SC 94, 100104. He submitted that the “Governor” was
a public officer within the meaning of the Public Officers (Protection) Law. He also submitted that the
Law protected public duties done both in tort and contract. He urged the Court to dismiss the appeal.
In his amended Notice of Appeal, appellant put forward two grounds of appeal he relies on in his
contention that the judgment of the court below be set aside. The two grounds read:
“1. The Learned trial Judge erred in Law in dismissing Plaintiff/ Appellant’s Case after upholding his
main contentions, on the ground that the Governor (1st Respondent) is a Public Officer and
is thus protected by the Public Officers Protection Law when from the facts and circumstances of the
case the Public Officers Protection Law does not apply.
PARTICULARS OF ERROR
(i) The Governor is not a person employed by the Rivers State Civil Service Commission and
therefore not a public Officer.
(ii) By Section 183 Part 11 of the 3rd Schedule to the 1979 Constitution of the Federal Republic of
Nigeria the Rivers State Civil Service Commission in the discharge of its functions is not subject to the
direction and control of any authority or person.
(iii) Of an
By the said Section 183 of the 3rd Schedule to the 1979 Constitution, the Governor is not ine
appropriate person or authority to terminate, discipline or dismiss the Plaintiff/ Appellant.
(iv) The Governor does not come within the classes of persons or authorities defined under Section
174 of the 1979 Constitution of the Federal Republic of Nigeria as Public Officers; the office of Governor
being an office or institution specifically created by S.162(I) of the aforesaid 1979 Constitution.
(v) The Public Officers Protection Law is designed to Protect Public Officers as individuals in the
discharge of their Public duties.
2. That the Learned trial Judge erred in Law in holding that the Public Officers Protection Law applied
to this action when:
(i) The subject matter of the suit was based on contract of service i.e. to say the subject matter was
one of master and servant.
(ii) That the act complained of was not a tortious act of a Public Officer in his/her individual Capacity
in the discharge of a public duty.”
And in the appellant’s brief of argument his learned counsel put forward 5 issues as arising for
determination in this appeal, to wit:
“(i) Whether from the Evidence adduced, the pleadings and the state of the Law the
Plaintiff/Appellant’s case succeeded.
(ii) Whether if the Plaintiff/Appellant’s case succeeded, the Learned trial Judge was right in dismissing
same on the ground that the 1st Respondent is a Public Officer protected by the public Officers
Protection Law Cap 106 Laws of Eastern Nigeria applicable in Rivers State.
(iii) Whether in fact the 1st Respondent is a Public Officer who can enjoy protection under the Public
Officers Protection Law.
(iv) Whether the 1st Respondent who was not sued as an individual in the performance of a Public
duty can enjoy the Protection of the Public Officers Protection Law.
(v) Whether the Public Officers Protection Law applies to the facts of this Case based on Contract of
service.”
Mr. Atata, in the respondents’ brief formulated two issues for determination, that is:
“(a) Whether the 1st defendant/Respondent is a public Officer within the meaning of Section 18 of the
Interpretation Act 1964 and Section 277 of the Constitution of the Federal Republic of Nigeria 1979 and
Subscribe!
consequently entitled to a protection as a public officer under the Public Officers protection Law, Cap.
106 Laws of Eastern Nigeria, 1963 as applicable in the Rivers State of Nigeria.
(b) Whether the act neglect, or default complained of by the plaintiff/ appellant namely; the unlawful
or wrongful termination of the plaintiff/appellant’s appointment in the Rivers State Civil Service; is an
act, neglect, or default protectable under the Public Officers Protection Law (supra).
Having regard to the judgment appealed against and the grounds of appeal, I prefer the issues as set
out in the respondents’ brief and shall adopt same in the determination of this appeal.
Issue (a)
This issue is covered by Ground 1. The appellant’s contention is that the “Governor” is not a public
officer within the meaning of that expression in Public Officers (Protection) Law. I have given careful
consideration to the submissions of learned counsel for the parties and I have examined the authorities
referred to both in their briefs and in oral submissions.
Section 2 of the Law provides thus:
“2. Where any action, prosecution. Or other proceeding is commenced against one person for any act
done in pursuance or execution or intended execution of any Law 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
following provisions shall have effect –
Of ine
(a) the action, prosecution. or proceeding 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:
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:”
Does the word ‘person’ as used in Section 2 mean natural persons only or What is the scope of the Law
in the light of the Section 2 thereof? Does it include artificial persons as well? The 1st respondent is not
a natural person but an office created by the Constitution, although the office is occupied at any given
time by a natural person. As a constitutional office it is a corporation sole and having regard to the
functions conferred on it by the Constitution, it can be safely said to be a public authority. As a public
authority and a corporation sole it is a legal person that can sue and he sued.
A number of authorities have been referred to by learned counsel for the parties both ;- their briefs and
in oral submissions. There is, however, a misconception about the scope of the legislations that have
come for consideration in some of these authorities, particularly those cited by learned counsel for the
respondents. Such cases as N.B.C. I’. Bankole (supra) and N.P.A. v. Construction Generali F.C. (1974) 12
SC 81 deal with Acts that are analogous to the English Public Authorities (Protection) Act which seeks to
protect public authorities in England in the same way that Public Officers (Protection) Law seeks to
protect public officers in this country. I agree with learned counsel for the respondents that the decision
in Momoh v. Ofewale (1977) 6 S.C. 81: (1977) NSCC 365 is not helpful in deciding the case on hand as
to who is a “public officer” since that case was based on Section 147 of the 1963 Constitution which is
riot in pari materia with Section 277( I) of the 1979 Constitution; the dictum of the Supreme Court in
the case is however relevant to the issue under consideration. At page 368 of the latter Report. Sir
Udoma delivering the judgment of the Supreme Court observed as follows:
“There can be no doubt that there had been in the past a tendency to confuse the ambit of operation of
the provisions of Section 2 of the Public Officers Protection Act. Cap. 168, with the relevant provisions of
Section I of the English Public Authorities Protection Act, 1893, (56 and 57 Vict. c.61), because the
provisions of Section 2 of the former Act were lifted almost wholesale from the provisions of Section 1 of
the English Public Authorities Protection Act, 1893.
It seemed to have been over-looked that there is a vast difference between the titles of the two Acts.
The Nigerian Act is entitled: “Public Officers Protection Act”. whilst the English Statute bears the title of
“Public Authorities Protection Act.” The aims and objects and the purposes of the two Acts are also
different. The intention of the British Parliament in enacting the English Act was to protect Public
Subscribe!
Authorities engaged in the discharge of responsibilities imposed upon them by Parliament. The Nigerian
law was aimed at protecting Public Officers as individuals in the discharge of public duties.”
The Supreme Court in OKEWALE held the view that the aim of the Nigerian law is to protect “public
officers as individuals” in the discharge of their public duties. This is why that in nearly all cases where
the law has been held to apply the public officers sued were sued in their individual names and not by
their official titles. The two exceptions that I know of are decisions of this Court. The first is Patrick
lyamah v. N.E.P.A.: FCAB/7/81 decided on 4/2/82 by the Benin Division of this Court and now reported
in (1982) CA 2 page 68 at pages 70-71 where the following passage occurs:
“Indeed what seemed to be issue was whether the Protection of section 2 of the Public Officers
Protection Act could be extended to N.E.P.A. apart from its officers.
This question was laid to rest in my view by the decision in Akin Bakrin v. L.C.C. & S. A. Ogunmodede
(1965) Lagos High Court Reports P.151 where Adefarasin J. (as he then was) held – “that the learned
Magistrate was right in holding that the action was statute barred in that the act complained of
concerned the execution of a public duty. The second appellant who was a driver in the employment of
the Lagos Municipal Transport service was performing an act in the performance of a public duty.”
This was an appeal against the decision of a Magistrate who ruled that the Lagos Town Council was a
public body performing a public duty and therefore any action against it had to be commenced within 3
months”.
Of ine
It would appear that this Court in that Case, was of the view that the Public Officers (Protection) Law
applied to individual persons and public authorities (such as the first defendant in the case) alike. It
does not appear that the attention of this Court was drawn to the dictum of the Supreme Court in
Momoh v. Okewale.
In the second case, Atiyaye v. The permanent Secretary, Ministry of Local Government, Borno State
(1990)1 NWLR (Pt.129) 728 the Jos Division of this Court held that by the provisions of Section 176 and
188 of the 1979 Constitution vis-à-vis section 55 of the Interpretation Law (of Borno State) and the
meaning. ascribed to Civil Service of the Federation, both Permanent Secretary and the Attorney-
General are public officers within the meaning of section 2(a) of the Public Officers (Protection) Law.
Maidama, J.C.A. delivering the lead judgment of the Court (with which Mukhtar and Adio, JJCA agreed)
said at pages 737-738: “Now the first question to be answered is whether either the Permanent
Secretary, Ministry of Local Government or the Attorney-General of Borno State, is a public officer within
the meaning of Section 2(a) of the Public Officers (Protection) Law? By Section 55 of the Interpretation
Law, Cap. 52 Laws of Northern Nigeria, a. public officer is defined as follows:
“A reference in any Law to any public officer by the usual or common title of his office shall, if there be
such an office customarily in Nigeria and unless the contrary intention appears, be read and construed
as referring to the person for the time being holding or carrying out the duties of that office in Nigeria.”
Section 18 of the Interpretation Act No. 1 of 1964, Laws of the Federation of Nigeria, also defines a
public officer as:
“A member of the public service of the Federation within the meaning of the Constitution of the
Federation or of the public service of a Region (now State) within the meaning of the constitution of the
Region (or State).”
Under the present Constitution, “Civil service of the Federation” means service of the Federation in a
civil capacity as staff of the office of the President, the Vice-President, a ministry or department of the
Government of the Federation assigned with the responsibility for any business of the Government of
the Federation; and “Civil service of the State” means service of the government of a State in a civil
capacity as staff of the office of the Governor, the Deputy Governor or a ministry or department of the
Government of the State assigned with the responsibility for any business of the Government of the
State. The powers of appointing a Permanent Secretary or Attorney-General of a State are governed by
Sections 176 and 188 of the Constitution. Section 176(1) of the Constitution reads:
“176(1) There shall be an Attorney-General for each State who; shall be a Commissioner of the
Government of that State.
Subscribe!
(2) A person shall not be qualified to hold or perform the functions of the office of the Attorney-
General of a State unless he is qualified to practice as a legal practitioner in Nigeria and has been so
qualified for not less than 10 years.”
and Section 188 of the Constitution also provides: “188(1) Power to appoint persons to hold or act in
the offices to which this section applies and to remove persons so appointed from any such office shall
vest in the Governor.
(2) The offices to which this Section applies are, namely:-
(a) Secretary to the Government of the State;
(b) Head of the State Civil Service:
(c) Permanent Secretary or other executive in any ministry or department of Government of the State
howsoever designated;
(d) Any office on the personal staff of the Governor.”
From the foregoing, it is quite obvious that both the Permanent Secretary and the Attorney-General are
public officers within the meaning of Section 2 (a) of the Public Officers (Protection) Law. The next
question is whether they are both entitled to the protection offered by Section 2(a) of the Public Officers
(Protection) Law. The main purpose of this law is to protect public officers, high or low, as individuals
Of
against any person for any act done in pursuance or execution, any intended execution of any ine
ordinance
or law or of any public duty or authority or in respect of any alleged neglect or default in execution of
any such ordinance, law, duty or authority. The test is not based on status but on function and authority.
Thus an action could still be maintained after three months where the public officers act is not
reasonably connected with the lawful exercise of his authority e.g. where a wrongful act resulting in
injury to another person is done prior to or after the completion of a public duty.
I have already stated that both the 1st and the 2nd respondents are public officers. The injury
complained of in the present case was done by the 1st respondent in the performance of his public duty
and in the absence of any malice or bad faith, he is entitled to the protection offered by Section 2 (a) of
the Public Officers (Protection) Law. The same applies to the 2nd respondent who, though not directly
connected with the injury complained of, is the highest legal officer representing the State. The cases of
P1-ed El-be v. Adefarasin and Alhaji Abubakar Alhaji v. Fred Egbe cited supra are therefore relevant.
Also relevant and directly on four is the case of Permanent Secretary. Ministry of Works, Kwara State &
Anor. v. Bologun N.L.R. page 91 and Obiefuna v. Okoye (1961) 1 All NLR page 357; (1961) 1
SCNLR.144″
Iyamah v. NEPA was considered by this Court (Benin Division) in Judicial Service Commission, Bendel
State and Attorney-General. Bendel Slate vs. Moses B. U. Atoka: FCAB/59/82 decided on 8/9/82 and
reported in (1982) 8-10 CA 42. At pages 56-62 Agbaje. JCA (as he then was), delivering the lead
judgment in the case (with which Nasir, P.C.A., Ete and Okagbue, JJCA and Nnaemeka-Agu. JCA (as he
then was) agreed) said:
“The essence of the submission of counsel, as far as I can see it, was that when the word “person” is
used in the enactment that word should not be taken. having regard to its definition in the Inter-
pretation Law as being limited to a natural person alone but as including a corporation or unincorporated
association, that is, an artificial person. It is to be noted that in the Interpretation Law the inclusive
interpretation provision of the sort we are now considering has the effect of enlarging the ordinary
meaning of the word in the body of the Statute to the extent only provided by the further words used
and without altering the ordinary meaning. See R. v. Herman per Lord Coleridge C.J. (1879) 4 QBD 284
at 288; Dilworth v. Commissioner of Stamps (1899) A.C. 99 at 105, 106 per Lord Watson. The
interpretation Law where the definition of the word “person” occurs applies to all laws in force in the
State. I have just said that an inclusive interpretation provision does not alter the ordinary meaning of
the word in question. No doubt under the inclusive interpretation provision in the Interpretation Law the
ordinary meaning of the word “person” is extended to include an artificial person that is to say, a
corporation or an unincorporated association. It is however my view that when dealing with a particular
statute where the word “person” occurs, it is a matter of construction having regard to the context in
which the word is used whether that word should be taken only in its natural meaning or both in its
natural meaning and in its meaning as enlarged by the provision in the interpretation law. It is therefore
my view that in the case in hand, it is a matter of construction having regard to the context of the Public
Subscribe!
Officers Protection Law and the decided cases whether the word “person” in S. 2 of the law is used only
in its natural meaning, or as referring to both a natural person and an artificial person. I hold therefore,
that the definition clause of the word “person” in the Interpretation Law will not by itself alone lead us to
the conclusion that S. 2 of the Public Officers Protection Law protects persons and statutory bodies i.e.
artificial persons, such as the first defendant alike.
It therefore behoves me to consider all the authorities put before us by counsel for both sides on the
point in issue. Counsel for the defendants in support of his submission that the Public Officers Protection
Law protects persons and authorities, referred us to many authorities. He referred to the case of
Ademola 11 v. Thomas 12 W.A.C.A. 81, where it was held that the first appellant (the Alake of
Abeokuta) therein was protected by the Public Officers protection ordinance and so no action lay against
him in respect of the act alleged because the action was taken more than three months after the date of
the act complained of. In that case a natural person was involved and not an artificial person – an
authority or a statutory body. So it does not help us in the case in hand.
Counsel next referred to the case of Oduhme v. The Minister of Local Government & Anor. (1962)
W.R.N.L.R. 112. In that case Charles J., held that the Public Officers Protection Law was applicable to
Ministers of the Crown in respect of any act, neglect or default to which it relates, a Minister of the
Crown being a holder of an office and consequently an officer, the functions of whose office are such that
he is a “public Officer” as defined by section 3 of the Interpretation Law, Cap. 51. Here, again the case
was concerned with a natural person holding public office. So again, it is not of assistance to us in this
case.
Of ine
Counsel next referred to the case of Joseph Nahman v. Ibadan (Provisional) District Council (1957 – 58)
W. R.N. L.R. 113. In that case, Taylor J., as he then was, applying S. 205 (b) of the Western Region
Local Government Law 1952 held that the action should have been brought at least within six months
from the date upon which the defendant council was established and that it not having been so brought
leave to withdraw should be refused and the action be dismissed. But S.205(b) of the Western Region
Local Government Law 1952 expressly provided that action against any council must be brought within
six months of the act complained of. So that provision of the law was clearly different from the one we
are now considering which uses the word “person” simpliciter in respect of the subject protected by the
enactment. So that case too is not in point here.
The case of Ojo v. Awe & Anor. cited by counsel for the defendants is equally not in point for it was
concerned with the operation of S.3 of the Torts Law Cap. 112, Laws of Western State, dealing with
limitation of action arising from death caused by’ negligence.
The chief weapon in the arsenal deployed by counsel for the defendants in his attack on the learned
judge’s finding in question is the case of Patrick Iyamah v. N.E.P.A. FCAB/7/81 decided on 4/2/82 by the
Benin Branch of Federal Court of Appeal, differently constituted from the one hearing this appeal, yet
unreported. In that case this branch, as I said differently constituted: held as follows: “Indeed what
seemed to be issue was whether the Protection of section 2 of the Public Officers Protection Act could be
extended to N.E.P.A. apart from its officers.
This question was laid to rest in my view by the decision in Akin Bakrin v. L.C.C. & S.A. Ogunmodede
(1965) Lagos High Court Reports p.151 where Adefarasin J., (as he then was) held:
“that the learned Magistrate was right in holding that the action was statute barred in that the act
complained of concerned the execution of a Public duty. The second appellant who was a driver in the
employment of the Lagos Municipal Transport Service was performing an act in the performance of a
public duty.”
This was an appeal against the decision of a Magistrate who ruled that the Lagos Town Council was a
public body performing a public duty and therefore any action against it had to be commenced within 3
months.”
That judgment, in my view, gives clear support for the contention of counsel for the defendants that the
Public Officers Protection Law applies to person and statutory bodies like the first defendant.
What I have just said must of necessity lead me to the case of Young v. Bristol Aeroplane Co. Ltd.
(1944) 2. All E.R. 293 where it was held as follows:
Subscribe!
“the Court of Appeal is bound to follow previous decisions of its own as well as those of courts of co-
ordinate jurisdiction with 3 exceptions:
(a) “ it may choose between two conflicting decisions of its own; (b) it must refuse to follow a decision
of its own which, though not expressly overruled, is inconsistent with a decision of the House of Lords;
(c) it is not bound to follow a decision of its own given per incuriam. “
So, unless I can show that the judgment of this branch in question was inconsistent with the decision of
the Supreme Court or that it was given Per incuriam I must follow it.
This now takes me to the submission of counsel for the plaintiff that the decision of this branch in
lyamah v. N.E.P.A. was inconsistent with the view of the Supreme Court in an earlier decision. He
referred us to the case of Rufus Alli Momoh v. Afolabi Okewale & Anor. (1977) 6 S.C. 81. At pages 88 to
89 of the report, Sir Udo Udoma delivering the judgment of the court said:
“There can be no doubt that there had been in the past a tendency to confuse the ambit of operation of
the provisions of Section 2 of the Public Officers Protection Act, Cap. 168, with the relevant provisions of
Section I of the English Pub] is Authorities Protection Act, 1893, (56, and 57 Viet. C.61), because the
provisions of Section 2 of the former Act were lifted almost wholesale from the provisions of Section I of
the English Public Authorities Protection Act, 1893. It seemed to have been over-looked that there is a
vast difference between the titles of the two Acts. The Nigerian Act is entitled: “Public Officers Protection
Act”, whilst the English Statute bears the title of “Public Authorities Protection Act”. The aims and objects
and the purposes of the two Acts are also different. The intention of the British Parliament in Of ine
enacting
the English Act was to protect Public Authorities engaged in the discharge of responsibilities imposed
upon them by Parliament. The Nigerian law was aimed at Protecting Public Officers as individuals in the
discharge of public duties. This is a clear and an unequivocal pronouncement by the Supreme Court that
the Public Officers Protection Act (Public Officers Protection Law) was aimed at protecting public officers
as individuals in the discharge of public duties. So, it is clear from this judgment that the Public Officers
Protection law unlike the Public Authorities Protection Act of U.K. was not aimed at protecting public
authorities engaged in the discharge of their public duties. So, this Supreme Court decision is authority
for the proposition, contrary to what was said in this court in Iyamah v. N.E.PA. (supra), that the law
could not be extended to protect public authorities. I am, therefore, satisfied that the decision is in
conflict with the compelling authority of the Supreme Court. So, I refuse to be bound by lyamah v.
N.E.P.A. (Supra).
I am satisfied that the Public Officers Protection Law protects public officers as individuals in the
discharge of public duties and does not protect public authorities engaged in the discharge of public
duties. So, the word “person” used in the Public Officers Protection Law is used, in my judgment, in its
ordinary meaning to connote a natural person, that is to say a public officer. I cannot do better than to
adopt the reasoning of the Supreme Court in Momoh v. Okewale & Anor. (supra) in coming to this
conclusion” (Italics is mine).
Thus Ivamah v. N.E.P.A. was not followed.
Another decision of this Court (Benin Division) which is inconsistent with lyamah v. N.E.P.A. is Utih v.
Egorr. (1990) 5 NWLR (Pt. 153) 771 where it was held that by virtue of section 2 (a) of the Public
Officers (Protection) Law, only individual public officers are protected in the discharge of public duties.
In my lead judgment in that case (with which Musdapher and Salami JJCA agreed) I had AL following to
say at pages 779-782 of the Report:
“QUESTION A:
It is the submission of learned counsel for the appellant that although under the 1979 Constitution, the
21st respondent could be said to be a Public Officer, this is only within the context of the Constitution
especially as regards to the 5th Schedule (Part one) titled Code of Conduct for Public Officers. He is not
public officer within the context of the Public Officers Protection Law. Learned counsel for the 21st and
22nd respondents has argued to the contrary. It is his submission that as the 21st respondent is not a
Public Officer for the purpose of the Public Officers Protection Law.
In his judgment the learned trial Judge said as follows:
“The crux of the matter must be whether the 21st and 22nd Defendants can take advantage of Section
2(a) of the Public Officers Protection Law, Cap. 137, Vol. V. Laws of Bendel State of Nigeria, 1976. If the
Subscribe!
21st defendant is a Public Officer then of course, he is protected.
The available affidavit evidence and the pleadings aver that he is a public officer because he is an Editor
of the “NIGERIAN OBSERVER” owned and published by the 22nd defendant, a statutory Corporation.
“Public Service of a State” is defined in the sixth Schedule in Section 277 of the Constitution of the
Federal Republic of Nigeria, 1979 as follows:
“Public Service of a State” means the Service of the State in any capacity in respect of the Government
of the State and includes service as –
(c) members of Staff of any Commission or Authority established by the State by this Constitution or
(d) Staff of any Local Government Council or Statutory Corporation established by a Law of a House
of Assembly.
(e) …………………
(f) Staff of any Company or Enterprise in which the Government of a State or its Agency holds con-
trolling shares or interest.
The 22nd defendant (BENDEL NEWSPAPER CORPORATION) is a Corporation wholly owned and
established by the Bendel State Government. See the Bendel Newspaper Corporation Edict, 1972 which
Of
established the Corporation. The Edict existed before the coming into force of the 1979 Federal ine
Constitution. It is as such an existing Law and Section 274(1) deems it to be a Law made by the House
of Assembly. I incline to the view that by the combined effects of paragraphs (d) and (f) of the Sixth
Schedule of Section 277 of the Constitution and the Bendel Newspaper Corporation Edict of 1972, the
21st defendant is a Public Servant being the Editor of a Statutory Corporation i.e. the 22nd defendant
21st Defendant being a Public Servant, it is my judgment that he is covered by Section (2)’(a) of the
Public Officers Protection Law”.
What is the correct position? It is not in dispute that the Public Officers Protection Law seeks to protect a
public officer in respect of any act done by him 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. Who then is a “public officer” within the context of the Law?
The expression is not defined in the Law itself. Counsel for the respondents relied on Section 277(1) of
the 1979 Constitution particularly the definition of “Public Service of a State” contained therein. Section
277(1) in so far as it related to the definition of “Public Service of a state” reads:
“277(1) In this Constitution, unless it is otherwise expressly provided or the context otherwise requires
– “public service of a State” means the service of the State in any capacity in respect of the government
of the State and includes service as –
(a) clerk or other staff of a House of Assembly.
(b) member or staff of the High Court the Sharia Court of Appeal or other courts established for a
State by this Constitution or by a House of Assembly.
(c) member or staff of any commission or authority established for the State by this Constitution or
(d) staff of any Local Government Council or statutory Corporation established by a Law of a House of
Assembly.
(e) staff of any educational institution established or financed principally by a government of a State
and
(f) staff of any company or enterprises in which the government of a State or its agency holds
controlling shares or interest.” (Italics is mine)
Under the above definition the editor of a newspaper established by the Bendel State Newspaper
Corporation (‘such as the Nigeria Observer is) will be a person in the public service of Bendel State. Our
attention has been drawn to Egbe v. Adefarasin (1985) 1 NWLR (Part 3) 549 Alhaji v. Egbe (1986) 1
NWLR (Part 16) 361 and Aiyetan v. N.I.F.O.R. (1987) 3 NWLR (Part 59) 48. In the first two cases, the
Subscribe!
definition of “public officer” was not directly in issue; it was generally accepted by both sides that the
defendants therein were public officers within the context of the Public Officers Protection Law. In
Aiyetan v. N.I.F.O.R. (supra) however, Nnamani, J.S.C. in his lead judgment, to which the other Justices
concurred, said at page 65 of the Report:
“There is no doubt that the appellant was a public officer. “Public Service of the Federation” is defined in
Section 277 of the 1979 Constitution of the Federal Republic of Nigeria as “service of the Federation in
any capacity in respect of the Government of the Federation and includes service as –
(d) staff of any statutory corporation established by an Act of the National Assembly.”
By section 274(1) (a) of the same Constitution– the Research Institutes Act, 1964 is an existing law and
therefore is deemed to be an Act of the National Assembly and the appellant was therefore a public
officer in the service of the Federation. Section 2(a) of the Public Officers Protection Law of Bendel State
provides that – “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, the 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 act, neglect or default
complained of…” –
The appellant was alleged to have taken for his own use N12,000.00 property of the Respondent on
Ofmonths,
17th September, 1979. The counter-claim was not raised until 14th April, 1981, a period of 19 ine I
am of the view that the learned trial Judge was right in holding the claim statute-barred.”
Before Aiyetan v. N.I.F.O.R. (supra) I would have held that the definition of “public service of a State” in
section 277(1) was limited to the definition of that expression as used in the Constitution and not for the
purpose of “public officer” as used in the Public Officers Protection Law of Bendel State.
With the decision in Aiyetan v. N.I.F.O.R. (supra) I must hold that the 21st Respondent was at all times
relevant to the action leading to this appeal a public officer entitled to the protection afforded by section
2(a) of the Public Officers Protection Law. As that section seeks to protect individual public officers in the
discharge of public duties however, I am not prepared to extend its protection to the 22nd Respondent –
see: Momoh v. Okewale & Anor. (1977) 6 SC.81 at 89.”
Thus, in Utih v. Egorr this Court once again held that section 2 of the Public Officers (Protection) Law
applied only to individual officers and not to public bodies or institutions. It is interesting to observe that
Maidama, JCA was also of the view that the Law applied to individual officers. I am in complete
agreement with ALAKA and EGORR more so that the long title of the Law and the dictum of the
Supreme Court in OKEWALE seem to support the view held in these cases. The long title reads:
“A Law to provide for the protection against actions of persons acting in the execution of public duties.”
“Person” in general usage, means a human being, that is, a natural person. By statute, however, the
word may mean a natural person and an artificial person, a Corporation. The meaning attributable to it
will depend on the context in which the word is used in the Statute or the object of the Statute as a
whole. For as Lord Blackburn observed in Pharmaceutical Society v. The London and Provincial Supply
Association Ltd. (1880) 5 App. Cas 877 at pages 868 – 869:
“I own I have no great doubt myself, for instance, that the word “person” may very well include both a
natural person, a human being, and an artificial person, a corporation. I think that in an act of
Parliament, unless there be something to the contrary, probably (but that I should not like to pledge
myself to) it ought to be held to include both. I have equally no doubt that in common talk, the
language of men not speaking technically, a “person” does not include an artificial person, that is to say,
a corporation. Nobody in common talk if he were asked, who is the richest person in London, would
answer, the London and North-Western Railway Company. The thing is absurd. It is plain that in
common conversation and ordinary speech, “a person” would mean a natural person: in technical
language it may mean the artificial person: in which way it is used in any particular Act, must depend
upon the context and the subject-matter. 1 do not think that the presumption that it does include an
artificial person, a corporation, if that is the presumption, is at all a strong one. Circumstances and
indeed circumstances of a slight nature in the context, might shew in which way the word is to be
construed in an Act of Parliament, whether it is to have the one meaning or the other. I am quite clear
about this, that, whenever you can see that the object of the Act requires that the word “person” shall
Subscribe!
have the more extended or the less extended sense, then, whichever sense it requires, you should apply
the word in that sense, and construe the Act accordingly.”
To that case “person” in sections 1 and 15 of the Pharmacy Act was held not to include a corporation.
Considering the context in which the word “person” is used in the Public Officers (Protection) Law, I am
in no doubt that natural persons only are protected. It must be borne in mind that there is a world of
difference between an office and the holder of that office. In my respectful view, Section 2(a) of the
Public Officers (Protection) Law protects the holder of the Office and not the office itself. An action
against an office is on action against the holder for the time being of that office who may not necessarily
be the alleged wrongdoer. Section 2(a) seeks to protect the alleged wrongdoer and that is why it is only
that individual alleged wrongdoer that can take advantage of the Law.
The conclusion I reach is that the 1st Respondent in the appeal on hand is not a public officer within the
meaning of the expression in the Public Officers (Protection) Law.
In the event I am held to be wrong in the conclusion I have just reached I am now to consider if the 1st
Respondent could take advantage of the protection offered by section 2(a) of the law. A public officer
can only be protected by the Law if he acts “in pursuance or execution or intended execution of any Law
or of any public duty or authority”. Was the 1st Respondent in terminating the appointment of the
appellant acting in pursuance or execution of any Law or of any public duty or authority? 1 rather think
not. Section 178(1) of the 1979 Constitution established a State Civil Service Commission for each of
the States of the Federation whose powers as set out in paragraph 2(1) of Part II of the Third Schedule
to the Constitution are – Of ine
(a) to appoint to offices in the State Civil Service; and
(b) to dismiss and exercise disciplinary control over persons holding such offices.
It is not in dispute that the appellant is one of such persons. Thus, under the Constitution, the only body
or authority that could dismiss and exercise disciplinary control over him is the 2nd Respondent. The
power given by the Constitution to the State Governor to make appointments and to remove such
appointees does not extend to the appellant. For section 188(1) and (2) provide:
“188.(1) Power to appoint persons to hold or act in the offices to which this section applies and to
remove persons so appointed from any such office shall vest in the Governor:
(2) The offices to which this section applies are, namely:
(a) Secretary to the Government of the State;
(b) Head of the State Civil Service;
(c) Permanent Secretary or other chief executive in any Ministry or department of Government of the
State howsoever designated; and
(d) any office on the personal staff of the Governor.” When the 1st Respondent purported in November
1981 to terminate the appellant’s appointment with the State Civil Service he was not acting in
pursuance or execution of any Law. Nor had he any public duty or authority to terminate the appellant’s
appointment. Simply put, the 1st Respondent had no power to do what he purported to have done in
November, 1981. The protection afforded by section 2(a) of the Public Officers (Protection) Law would
not therefore, avail the 1st Respondent.
Ground I, therefore, succeeds.
Issue (b)
The conclusion 1 have reached on Issue (a) is, enough to dispose of this appeal but in view of the issue
of law involved in Issue (b) which deserves of consideration, I will venture to consider it as well. It is Mr.
Ofoluwa’s contention that appellant’s claim being based on contract of master and servant, section 2(a)
of the Public Officers (Protection) Law would not apply. Mr. Atata has argued to the contrary. He argues
in his brief thus:
111. It is respectfully submitted that those contentions are misconceived. The subject matter of this suit
is not based on a breach of contract. The plaintiffs/Appellants complaint and action is founded
Subscribe!
upon the wrongful or unlawful exercise by the Defendants/Respondents of the statutory
(Constitutional) power, authority or duty vested in them.
The 1st Defendant/Respondent is by Section 188(1) and (2) of the Constitution of the Federal Republic
of Nigeria, 1979 vested with certain powers of appointment and removal.
The 2nd Defendant/Respondent is by Section 178(2) and paragraph 2(1) of Part II of 3rd Schedule of
the 1979 Constitution and the Civil Service Rules No. 04102 vested with powers of dismissal and other
disciplinary control over persons holding offices in the State Civil Service. The Plaintiff/Appellant’s com-
plaint and the gravamen of his action is against the wrongful or unlawful exercise of these powers,
authority or duties.
The case of:
1. i) Salako v. L.E.D.B. & Another (1953) 20 NLR 169 and
2. ii) N.P.A. vs. Construction Generali F.C.S. (1974) 12 S.C. 81 are in applicable the subject matters
thereof being one of contract simpliciter.
3. In answer to ground 2(ii) of the Plaintiff/Appellant’s grounds of appeal, it is respectfully submitted

that the acts, neglect or default contemplated by Section 2 of the Public Officers Protection Law
(supra) is not stagnated or restricted to tortious acts only.
In the case of Egbe vs. Adefarasin (No. 1) (1985) 1 NWLR (Pt.3) page 549, the act or default
Of ine
complained by the plaintiff thereof was in connection with an unlawful exercise of a statutory authority
by a public officer namely; the Director of Public Prosecution, Lagos State. The Supreme Court held that
the provisions of the Public Officers Protection Law were applicable to cases of such unlawful exercise of
a statutory authority by a public officer.
Also, in the English cases of Scammen/Nephew v. Hurley (1929) 1 K.B. 419 a similar decision was
reached by the English Court of Appeal.
In Ekemode vs. Alausa (1961)1 All NLR. 135 at 137-138, Charles 1. said: “As Lord “Haldane said of
Section I of the United Kingdom “Act (Bradford Corporation vs. Mayas (supra) at”p. 251)
it is difficult to say either abstractly or exhaustively what causes of action are covered by section 2 of
the ordinance……”
And in Yusuf vs. Egbe (1987) 2 NWLR (Pt.56) 341 at 364 C-D, Kutigi JCA, said:
“A Court of law is bound to presume that the law intended what it has said. A statute should be given its
ordinary and natural meaning free from imported ideas”.
The plaintiff/appellant’s contention in ground 2 (ii) of this appeal tantamount to importing ideas not
contemplated by the statute into the Public Officers Protection Law.
From the foregoing authorities, it is respectfully submitted that the classes of acts neglect or default
contemplated by Section 2 of the Public Officers Protection Law (supra) is not restricted to tortious acts
only. It is inclusive of any wrongful or unlawful exercise of a statutory authority or duty as was held by
the Supreme Court in Egbe vs. Adefarasin (supra). The same is applicable to this case.”
It was held as long ago as 1953 by de Comarmond, S.P.J. in Salako v. L.E.D.B. & Anor. 20 NLR 169 that
“section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land,
breaches of contract, claims for work and labour done, etc.” He relied for his decision on Milford Docks
Co. v. Milford Haven UDC Empire Digest, Vol. 38 page 109 No. 780; Foat v. The Mayor, & C., of Margate
11 QBD 299; Halsbury’s Laws of England, 2nd edition Vol, XXVI. p. 298. A couple of years later S.P.Q.1.
Thomas, J. in construing S.62 (1) of the Native Authority Ordinance (which is in pari materia with
section 2(a) of the Public Officers (Protection) Law under consideration) observed as follows in Not iode
v. Western Urhobo Native Administration (1955-56) W.R.N.L.R. 67 at pages 67 – 68 in a case based on
contract:
“This section reads inter alia:
“When any suit is commenced against any Native Authority for any act done in pursuance, or execution,
or intended execution of any Ordinance, or Law of any public duties or authority, or in respect of any
Subscribe!
alleged neglect or default in the execution of any such Ordinance or Law, duty or authority, such suit
shall not lie or be instituted unless it is commenced within six months next after ceasing thereof:-”
For purposes of comparison, in a like provision in respect of the Railways, section 40 of the Railways
Ordinance (Cap. 191) reads as follows:
“No action shall be brought against a Railway administration unless the same be commenced within six
months after the cause of the action arose”.
It appears then to me that there is a limit placed on the protection proposed in favour of Public
Authorities.
I am fortified in that belief in that in respect of Public Authorities Protection Act, 1893, which is in the
exact terms of our Ordinance, the law is stated as thus in Halsbury’s Laws of England (1st Edition) Vol.
23, article 693, page 342.
“The performance of the Specific contract made in pursuance of a public duty is not the performance of
a public duty even though the defendant is a public authority and the making of such contract would
have been ultra vires save for statutory powers nor is the performance, even by a public authority, of
acts merely incidental to the ownership of property the performance of a public duty.”
In the circumstances I do hold that the Respondents have not got the necessary protection that they
thought they had in this appeal.”
Of ine
Next, in Bankole v. Nigerian Broadcasting Corporation (1969) NCLR 385, 390, a case of unlawful
dismissal, George, J. in interpreting the scope of section 61(1) of the Nigerian Broadcasting Act Cap.133
Laws of Nigeria (which is in pari materia with section 2(a) of the Public Officers Protection Law) had this
to say: “At the close of the case for the defendant, counsel for the defendant submitted that since the
dismissal of the plaintiff was on June, 10th 1965 and the action was brought in 1968 it was statute
barred. He drew my attention to S.61(1) of the Nigerian Broadcasting Act (Cap. 133), which read:
“No suit against the Corporation or any servant of the Corporation for any act done in pursuance or
execution 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 such Act or Law, duty or authority. shall lie or be
instituted in any court unless it is commenced within twelve months next after the act neglect or default
complained of or, in the case of a continuance of damage or injury, within twelve months next after the
ceasing thereof.”
1 n my view, S.61(1) contemplates the position where the corporation or the authority of an Act does an
act which causes injury or trespass to a person or his property. But it does not apply to a case where the
corporation is exercising its rights based on common law or on a contract.”
These three cases are decisions of courts of first instance. In Nigerian Ports Authority v. Construction
Generali F.C.S. & Anor. (1974) 12 SC 81; (1974) NSCC 622 the Supreme Court had the opportunity of
considering the scope of Section 97(1)–of the Ports Act. The section, which is in part materia with the
provisions under consideration in this appeal, provides:
“When any suit is commenced against the Authority or any servant of the Authority for any act done in
pursuance or execution, or intended execution of any Act or Law, or of any public duties or authority, or
in respect of any alleged neglect or default in the execution of such Act, Law, duty or authority, such
suit….”
The 1st Respondent had counter-claimed against the Appellant (N.P.A.) in the sum of 287,986 pounds.
The trial Chief Justice of Lagos State (Taylor, C.J.) had held that section 97 did not deal with actions
relating to contract. On appeal, the Supreme Court, per Ibekwe JSC (as he then was) held at pages
630-631 of the latter Report:
“We shall now deal with the other point which to our mind, does not seem to be well-settled, namely
whether the kind of statutory privilege which we have been considering i s applicable to an action
founded upon a contract. In other words, whether S.97 of the Ports Act applies to cases of contract. We
think that the answer to this question must be in the negative. We agree that the section applies to
everything done or omitted or neglected to be done under the powers granted by the Act. But we are
not prepared to give to the section the stress which it does not possess. We take the view that the
section does not apply to cases of contract. The learned Chief Justice, in Subscribe!
deciding this point, made
reference to the case of Salako v. LEDB. and Anor. 20 NLR 169 where de Commarmond S.P.J. as he then
was, construed the provision of S.2 of the Public Officers Protection Ordinance which is almost identical
with S.97 of the Ports Act, and thereafter stated the law as follows:
“I am of opinion that section 2 of the Public Officers Protection Ordinance does not apply in cases of
recovery of land, breaches of contract, claims for work and labour done, etc.”
We too are of the opinion that de Commarmond S.P.J., has quite rightly stated the law in the passage of
his judgment cited above. It seems to us that an enactment of this kind i.e. S.97 of the Ports Act is not
intended by the legislature to apply to specific contracts.
It is pertinent to point out that the view which we have just expressed seems to be in consonance with
the trend of the judgment pronounced in English cases dealing with similar provisions in certain English
Statutes. We shall refer only to one case as an example. In the Midland Railway Company v. The Local
Board.for the District of withington (1882) 11 Q.B.D., 788, the Court of Appeal construed 5.264 of the
Public Health Act, 1875 (38 & 39 Viet. C.55) which, more, or less falls in line with S.97 of the Ports Act,
the subject-matter of this appeal. We think that it is desirable that we should here set out the provision
of 5.264 of the Public Health Act, 1875, as follows:
Sec. 264. A writ or process shall not be issued out against or served on any local authority, or any
member thereof, or any officer of a local authority, or persons acting in his aid, for anything done or
intended to be done or omitted to be done under the provisions of this Act, until the expiration of one
month after notice in writing has been served on such local authority member, officer, or Of ine
person……………..,”
Delivering the judgment of the court at p.794, Brett, M.R., made the following illuminating observation:
“It has been contended that this is an action in contract, and that whenever an action is brought upon a
contract, the section does not apply. I think that where an action has been brought for something done
or omitted to be done under an express contract, the section does not apply; according to the cases
cited an enactment of this kind does not apply to specific contracts. Again, when goods have been sold,
and the price is to be paid upon a quantum meruit, the section will not apply to the action for the price,
because the refusal or omission to pay would be a failure to comply with the terms of the contract and
not with the provisions of the statute.”
We agree with their Lordships’ exposition of the law on this point. Clearly, the appellants’ claim and the
1st respondents’ counter-claim in the present case are founded in contract. The counter-claim, in brief,
is for the payment of the balance of money due from the appellants to the respondents as a result of the
contract they both entered into for the construction of the second Apapa Wharf Extension.”
This same point came for consideration by this Court (Benin Division) in Judicial Service Commission &
Anor. v. Moses B. U. Alaka (supra) to which reference has been made earlier in this judgment, Agbaje,
J.C.A. (as he then was) delivering the lead judgment of the Court said at page 62 of the Report:
“The other point taken by counsel, which was put in the alternative to the first point I have just dealt
with, is also worthy of consideration because, in my view,…… there is merit in it too. The point was this:
even if the Public Officers Protection Law protects public officers as well as institutions like the first
defendant, Judicial Service Commission, counsel submitted, a contract is not one of such transactions in
respect of which a public officer or a public body or institution can claim the protection of that law in an
action grounded on the breach of the contract.”
After reviewing the cases of Bankole v. NBC (supra), and Noriode v. Western Urhobo Native
Administration (supra) he held at page 65 of the Report:
“I have no doubt, therefore, that counsel for the plaintiff, Mr. Ihensikhien, was right in this other
submission of his which I have stated above. So, even if 1 had held that the protection given by S.2 of
the Public Officers Protection Law can be extended to protect institutions like the first defendant, which I
don’t, I would have held that in an action sounding in contract like the one in hand; the protection given
in the law cannot be claimed by the defendants since the protection does not extend to the transaction
the subject matter of this action i.e. a contract.”
It is noteworthy to observe that in ALAKA, although this Court did not have the advantage of having
Salako v. LEDB (supra) and N.P.A. V. Construzioni Generali PFCS (supra) cited before it, nevertheless
Subscribe!
came to the same conclusion as in those cases.
In the light of the weight of judicial opinion highlighted above, I must come to the conclusion that the
respondent’s action leading to the instant appeal, being founded on the contract of employment, section
2(a) of the Public Officers (Protection) Law will not avail the 1st Respondent. Ground 2 also succeeds.
Thus, for the reasons that
(a) the 1st Respondent is not a person within the contemplation of the Law,
(b) the act of the 1st Respondent is not one done in the pursuance or execution, or intended
execution of any Act or Law or of any public duty or authority, and
(c) the appellants claim being one founded on contract, the learned trial Judge., with profound
respect to him, was seriously in error when he held that the appellant’s action was statute-barred, not
having been instituted within 3 months of 10th November 1982. The judgment must be set aside.
On the findings of fact made by the learned trial Judge and against which there has been no appeal, it
follows that judgment ought be entered in favour of the appellant on all his claims – see: Obayuwana v.
Governor of Bendel State & Anor. (1982) 12 SC 147, (1982) NSCC 524; Shitta-Bey v. Federal Public
Service Commission (1981) 1 SC 40.
I, therefore, allow this appeal and set aside the judgment of the court below dismissing plaintiff’s claim.
I enter judgment for the plaintiff/appellant as follows:
Of ine
1. I hereby declare that the termination of the plaintiff by the Governor of the Rivers State in 1981 is
null and void and of no effect whatsoever.
2. I also declare that the plaintiff is still a member of the Rivers State Civil Service holding the
substantive post of Higher Executive Officer (or whatever designation is now attached to that post)
thereof and therefore entitled to be paid his salaries and entitlements by virtue of the said
employment.
3. I order that the plaintiff be reinstated by the 2nd Respondent with immediate effect.
I award to the appellant N250.00 costs of the trial and N350.00 costs of this appeal, both inclusive of
out of pocket expenses.
KOLAWOLE, J.C.A.: I have had the advantage to read in draft the judgment of my learned brother
Ogundare, J.C.A. just delivered. I am in agreement with his reasoning and conclusions that the appeal
be allowed.
I also allow the appeal. I set aside the judgment of the court below. I enter judgment in favour of the
appellant in the terms set out in the judgment of my learned brother Ogundare, J.C.A.
OMOSUN, J.C.A.: I have read in draft the judgment of my learned brother OGUNDARE JCA just
delivered. The striking feature in this appeal is that the learned Judge in the lower court made findings
of fact which are amply supported by evidence. But he dismissed the plaintiff’s case because of wrong
application of Section 2 of the Public Officers Laws of Eastern Nigeria 1963 Vol. VI. He held that 1st
respondent was a “public Officer” and so was protected by the law. In CHIEF JJ.G. ONYIA V. GOVERNOR-
IN-COUNCIL & ORS. (1962) 2 All NLR 174 at 179.
QUARSHIE-IDUN, C.J. at page 179 said:
“I now come to the question as to whether the action is statute barred by virtue of the public Officers
Protection Law Cap. 106. I would refer to the definition of the term “public Officer: as – contained in the
Interpretation Law Cap. 51 of the Laws of the Western Region. It is defined as extending and including
every officer or department invested with or performing duties of a public Nature, whether under the
immediate control of the Governor General or the Governor of a Region or not. This definition implies
that the Governor is a different entity from a Public Officer.
The term “Governor-in-Council” is also defined in the Interpretation Law as meaning the Executive
Council, which also indicates that it is a different entity from a public Officer although
it must be conceded that they all perform public functions. It is my considered opinion that as the public
Officers Protection Law does not expressly mention the Governor-in Council as coming within its ambit,
Subscribe!
it must be deemed that the Governor-in-Council is not a public Officer. In the case of LAMBERT versus
TAYLOR, 107 E.R. page 110 at page 1016 it was held that the crown was not within the operation of the
Statute of Limitation.”
The learned Judge was in serious error in holding that Section 2 of the public Officers Protection Law
protected the action of the 1st respondent. The 1st respondent is not a Public Officer within the meaning
ascribed to the tern in the Public Officers Protection Law E.N. Cap. 106 Vol. VI.
The Governor is bound by the Law which the Government has made. The constitution which is the
supreme law of the land binds him. It is not within his powers to swap the functions of the Civil Service
Commission in disciplinary matters. The 1979 Constitution made provisions for the functions of the three
arms of Government and 1st respondent cannot unilaterally arrogate to him the functions of any organ
of the Government. 1st respondents termination of the appointment of the appellant was arbitrary and
unlawful. ESO JSC put the matter beyond doubt in ELESO v. GOVT. OF OGUN STATE (1990) 2 NWLR (Pt.
133) 420 at page 437. He said:
“In exercise of his powers as a matter of order peace and good government, the Governor must have
recourse to law. The Governor is certainly not there to seize the power of other functionaries nor is he
there to rule in dictatorship in disregard of the established laws of the land. That would not bring order
nor peace nor good government ……. For the Government to step in and approve the appointment of one
of the candidates without any backing of the law, when the provisions of the law are there, clear,
straightforward and binding is to introduce arrogance into governance.” NNAEMEKA-AGU, J.S.C. at page
443 F-H held the same view.
The 1st respondent cannot rightly take over the function which the law allocated to the Civil Service
Commission. He set about the termination of the appellant in a wrong manner. He gave him no chance
to counter the allegations against him – audi alterem patem – hear the other side before the
termination. No doubt he was performing in unfamiliar surroundings and it is little wonder that in the
course of usurpation he went astray and did wrong things.
I agree that the appeal be allowed. I set aside the judgment of the lower court dismissing plaintiff’s
claim. I enter judgment for the plaintiff in the terms set out in the lead judgment. I abide by the order
of costs made in the lead judgment.
Appeal allowed.
Law Nigeria Admin
Related posts
November 7, 2018
3PLR – KANO TEXTILE

PRINTERS PLC V.
GLOEDE AND HOFF
NIGERIA LIMITED
Subscribe!
 Read more
0 Comments Law Nigeria Judgment Segment  O Danny Boy
 Recommend t Tweet f Share Sort by Best
Start the discussion…
Be the first to comment.
✉ Subscribe d Add Disqus to your siteAdd DisqusAdd

🔒 Di 'P i P li Pi P li Pi
ABOUT US QUICK LINKS OUR SUPPORT CORPORATE OFFICE
LawNigeria.com was conceived as Phone Numbers Tree & Trees Center, 28, Greenville
About Us
Nigeria's first multi-segment free +234 706-710-2097 Estate, Badore off Jubilee Bridge, Eti-
access clearing for legal, policy, +2348134600908 Osa LGA, Lagos, Nigeria
Terms & Conditions
business and government standards
Email
and intelligence. Information in 2009 Children & Women
info@lawnigeria.com
by justice sector entrepreneur, Sam
lawnigeria@gmail.com Email
Eleanya...Read More Contact Us
Subscribe
Tree & Trees JusticeMedia Ltd © 2018, All rights reserved. | Web Design: Penciledge       
Subscribe!

3PLR - ALAPIKI V. THE GOVERNOR OF RIVERS STATE - Judgements

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

3PLR - ALAPIKI V. THE GOVERNOR OF RIVERS STATE - Judgements

Uploaded by

Copyright:

Available Formats

11/7/2018 3PLR – ALAPIKI V.

THE GOVERNOR OF RIVERS STATE – Judgements

Law Education Nigerian Law Publications

3PLR – ALAPIKI V. THE Trending

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS LIMITED

COURT OF APPEAL 3PLR – JUMANG

8 NWLR (PT. 211) 575

BEFORE THEIR LORDSHIPS

OWOLABI KOLAWOLE, J.C.A.

BRAIMAH AMEN OMOSUN, J.C.A

1. THE GOVERNOR OF RIVERS STATE

2. RIVERS STATE CIVIL SERVICE COMMISSION

ACTION – Action against an office – Nature of

ADMINISTRATIVE LAW – Governor of a State – Legal personality of

ADMINISTRATIVE LAW – Laws of the State – Duty on Governor to comply therewith.

INTERPRETATION OF STATUTES – “Person” as used in statutes – How, interpreted.

OGUNDARE, J.C.A. (Delivering the Leading Judgment):

“13. The plaintiff will contend at the trial that:

(a) Clerk or other staff of a House of Assembly.

Section 2 of the Law provides thus:

(2) The offices to which this Section applies are, namely:-

(a) Secretary to the Government of the State;

(b) Head of the State Civil Service:

(d) Any office on the personal staff of the Governor.”

Thus Ivamah v. N.E.P.A. was not followed.

In his judgment the learned trial Judge said as follows:

(a) clerk or other staff of a House of Assembly.

(a) to appoint to offices in the State Civil Service; and

(2) The offices to which this section applies are, namely:

(a) Secretary to the Government of the State;

(b) Head of the State Civil Service;

Ground I, therefore, succeeds.

The case of:

1. i) Salako v. L.E.D.B. & Another (1953) 20 NLR 169 and

3. In answer to ground 2(ii) of the Plaintiff/Appellant’s grounds of appeal, it is respectfully submitted

“This section reads inter alia:

QUARSHIE-IDUN, C.J. at page 179 said:

Law Nigeria Admin

3PLR – KANO TEXTILE

0 Comments Law Nigeria Judgment Segment  O Danny Boy

 Recommend t Tweet f Share Sort by Best

Start the discussion…

Be the first to comment.

✉ Subscribe d Add Disqus to your siteAdd DisqusAdd

ABOUT US QUICK LINKS OUR SUPPORT CORPORATE OFFICE

You might also like