Action against a Public Officer Who Acts in the Interest of the Country – Sustainability of
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 22nd Day of January, 2021
Before Their Lordships
Nwali Sylvester Ngwuta
Musa Dattijo Muhammad
Kudirat Motonmori Olatokunbo Kekere-Ekun
Amina Adamu Augie
Justices, Supreme Court
Alhaji Ali Abacha Appellant
Attorney-General of the Federation Respondent
“WHERE A PUBLIC OFFICER IN THE DISCHARGE OF HIS STATUTORY DUTIES, REASONABLY BELIEVES THAT HE IS SO EMPOWERED TO ACT IN THE INTEREST OF THE OVERALL WELLBEING OF THE COUNTRY AND GOES AHEAD TO ACT ACCORDINGLY, EVEN WHERE THERE IS NO EXISTING LAW TO BACK UP HIS ACTION, THE POP ACT WILL PROTECT HIM.”
(Lead judgment delivered by Honourable Kudirat Motonmori Olatokunbo Kekere-Ekun , JSC)
On 23rd December 1999, the President of the Federal Republic of Nigeria (“the President”) delegated the power to freeze the Appellant’s accounts, under the Banking (Freezing of Account) Act, to the Respondent. Based on the delegated authority, the Respondent wrote various letters to the governments or authorities of United Kingdom, Switzerland, Jersey, Liechtenstein and Luxembourg requesting for mutual assistance to freeze the accounts of the Appellant maintained in the respective countries and steps were taken in this regard by the named countries. The Respondent also delegated powers to a certain Maitre Enrico Monfrini of Monfrini & Bottege Associates, Switzerland to assist and represent the Federal Republic of Nigeria in this regard.
Sometime in October 2003, the Respondent requested that the funds in the accounts be transferred to Nigeria. The Appellant, therefore, commenced an action against the Respondent via Originating Summons filed on 5th April 2004 at the Kaduna Judicial Division of the Federal High Court. He sought the determination of some questions including whether the Respondent, purporting to act on the powers of the President under the Banking (Freezing of Accounts) Act Cap29 Laws of the Federation of Nigeria 1990, can validly request a transfer of funds from the Appellant’s account maintained in the United Kingdom, Switzerland, Jersey, Liechtenstein, and Luxembourg, when the Appellant was yet to be convicted of any criminal offence under the laws in force in the Federal Republic of Nigeria. The Appellant also sought inter alia, a declaration that the President’s delegation of power to freeze the Appellant’s accounts on 23rd December, 1999 under the Banking (Freezing of Accounts) Act of 31st December 1983 is ultra vires the powers of the President and consequently illegal, unconstitutional, null and void, the said statute having been repealed on 29th day of May, 1999.
The Respondent filed a Preliminary Objection contending principally that the action was statute barred by virtue of the provisions of Section 2(2) of the Public Officers Protection Act (“POPA”). When the suit came up on 23rd July 2004, the Respondent was absent from court when his Preliminary Objection was struck out and argument was taken on the Originating Summons. The suit was, thereafter, adjourned to 23rd July, 2004 for delivery of judgement. However, the Respondent refiled his Preliminary Objection and same was argued on 23rd July, 2004. A further date of fixed for delivery of judgement without the Respondent being called upon to Reply to the arguments made in support of the Originating Summons.
In its decision on the Preliminary Objection on 29th July 2004, the trial court found that the POPA could not avail the Respondent because the Federal Government had no authority to write the letters of request for mutual assistance since the Banking (Freezing of Accounts) Act of 1983 had been repealed in May, 1999. Dissatisfied, the Respondent successfully appealed to the Court of Appeal and this led to a further appeal to the Supreme Court by the Appellant.
Issue for Determination
The appeal was determined on the sole issue below –
Whether Section 2(a) of the Public Officers Protection Act avails the Respondent whose action was predicated in a repealed or non-existing law?
Arguing the sole issue, counsel for the Appellant contended that for a public officer to enjoy the protection of POPA in respect of an action brought after three months of the act complained of, the act must have been done in the execution of an Act or Law. He likened the facts of this case to the facts in the case of NWANKWERE v ADEWUNMI (1966) ANLR 119 and submitted that the Respondent purportedly acted based on powers conferred by the Banking (Freezing of Accounts) Act which had been repealed as at the time the various letters were written requesting the assistance of foreign governments to freeze the Appellant’s accounts. He noted that the Supreme Court in EGBE v YUSUF (1992) 6 NWLR (Pt. 245) 1 referred to NWANKERE v ADEWUNMI as an instance where a public officer acted outside his statutory duty and was therefore, not covered by the law.
Counsel submitted that the Court of Appeal erred when it held that the Respondent acted in compliance with the powers delegated to him by the President because the Respondent could only exercise powers that the President could legally exercise. Since the Banking (Freezing of Accounts) Act had been repealed, the President could not exercise any power under the Act. In support of his position, counsel referred to Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the case of A-G FEDERATION v SODE (1990) 1 NWLR (Pt. 128) 500 at 544 and stated that POPA is not intended to have a blanket application in all cases where an action is commenced against a public officer after the three (3) months limitation period.
Responding to the submissions above, counsel for the Respondent submitted that the Appellant misconstrued the provision of Section 2(a) of POPA. He stated that the said provision of POPA applies in three circumstances which are where the act of the public officer is in the execution or intended execution of – (i) any Act or law; (ii) any public duty; or (iii) authority. Counsel contended that the Respondent was acting within the colour of his office under Section 174 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in his office as the Attorney-General of the Federation. He argued that a reasonable belief in the execution of public duty, even where there is no law authorizing the act, offers the protection provided under the law. Counsel posits further that there is no imputation of bad faith against the Respondent and even though he might be accused of overzealousness or error of judgment, it was not sufficient to disentitle him from the protection under POPA. He referred to the case of OFFOBOCHE v OGOJA L.G. & ANOR. (2001) FWLR (Pt. 68) 1051 at 1067 – 1069 B – B.
Further, the Respondent distinguished the decision in NWANKWERE v ADEWUNMI (supra), relied on by the Appellant, from the instant case. He stated that what was in issue in the case was abuse of power which is not the situation in the instant case. It was also submitted for the Respondent that subsequent to the case of NWANKWERE v ADEWUNMI (supra), the Supreme Court has held in other decisions that where an action is filed outside the statutory period, the court is not expected to pry into the conduct of the Defendant that gave rise to the action.
Court’s Judgement and Rationale
The Supreme Court set out the provisions of Section 2(a) of POPA which provides that an action shall not be instituted again any person 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 any such Act, Law, duty or authority unless the action is commenced within three months of the act, neglect or default complained of. The court reckoned that there are at least three circumstances where the provision of Section 2(a) of POPA will apply to foreclose a litigant’s right of action against a public officer. Relying on the case of EGBE v ALHAJI (1990) 1 NWLR (Pt. 128) 546 at 568 – 568 N – A, the court held that the provision will apply to an action brought against a public officer in relation to any act done (a) in pursuance or execution or intended execution of any law; (b) in pursuance or execution of any public duty or authority; or (c) in respect of any alleged default or neglect in the execution of any law, duty or authority.
Further, the apex court held that where a public officer in the discharge of his statutory duties, reasonably believes that he is so empowered to act in the interest of the overall wellbeing of the country and goes ahead to act accordingly, even where there is no existing law to back up his action, the POPA will protect him. In support of this position, Their Lordships relied on the earlier decisions of the apex court in ALHAJI ABBA MOHAMMED SANI v THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA AND THE ATTORNEY GENERAL OF THE FEDERATION – SC.68/2010, which facts and issues are on all fours with the instant case.
Also, the Supreme Court opined that malice or bad faith in the conduct of the public officer complained of would not vitiate the protection afforded under the Act where the defence of limitation is raised in limine. The court found that in the instant case, the suit was filed outside the three months stipulated in Section 2(a) of POPA and the issue of limitation was raised in limine. Consequently, the suit was statute barred and was rightly struck out by the Court of Appeal.
R.O. Atabo Esq. with Dr. S.U. Osia, S.O. Atabor, O.D. Ogunniyi and I.O. Enagbonma for the Appellant.
D.C. Enwelum, SAN and S.C. Enwelum Esq. for the Respondent.
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