Statutory Protection Where Public Officer Acts Pursuant to Non-existent Law


In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 7th day of February, 2020

Before Their Lordships
Olukayode Ariwoola
Kudirat Motonmori Olatokunbo Kekere-Ekun
Chima Centus Nweze
Amina Adamu Augie
Paul Adamu Galinje
Justices, Supreme Court

Between Alhaji Abba Mohammed Sani Appellant

1. The President Federal Republic of Nigeria
2. Attorney-General of the Federation … Respondents

(Lead Judgement delivered by Honourable Chima Centus Nweze, JSC)


The Respondents had authorised the Swiss Authorities to freeze the bank accounts held in that jurisdiction by the late General Sani Abacha, his children, servants, agents or any other third party who participated in the misappropriation of public funds. The foregoing directive impelled the commencement of an action by Originating Summons, against the Respondents.
After taking submissions on the Originating Summons and the issue of limitation period as prescribed under the Public Officers’ Protection Act, the trial court dismissed the action. The appeal to the Court of Appeal was also dismissed, and the decision of the trial court affirmed. This prompted a further appeal to the Supreme Court.

Issues for Determination
Parties formulated issues for determination of the court. The Supreme Court however, adopted the issues formulated by the Respondents, which it considered as more precise and appropriate, having regard to the complaints raised in the Notice and Grounds of Appeal. The issues are:

1. Whether the Appellant’s case in its entirety is not caught by the Public Officers’ Protection Act, Cap 379, Laws of the Federation of Nigeria.

2. Whether the Appellant’s case is not caught up by the principle of Estoppel per rem judicatam by reason of the judgement in Suit No: FHC/ABJ/CS/347/2003 or Suit No. CA/A/221/2003 Sulgrave Holdings INC. & Ors. v F.G.N. & Ors (FHC/ABJ/CS/347/2001) as well as Suit No. FHC/KD/CS/281/2003 Ali Abacha v A-G Federation.

Arguing the first issue, counsel for the Appellant submitted that the provisions of the Public Officers’ Protection Act which requires that all suits against public officers be filed within three months from the date of the accrual of the cause of action, excludes the right of action . He submitted that, the Respondents relied on the Bank (Freezing of Accounts) Act, an enactment which does not exist anymore – IBRAHIM v JUDICIAL SERVICE COMMISSION KADUNA STATE (1998) 14 NWLR (Pt. 584) 32. He posited that the Respondents action was without legal justification, as they acted outside the colour of their office. Counsel reiterated that Section 2(2) of the Public Officer’ Protection Act operates subject to exceptions, qualifications or limitations imbedded in the law. He placed reliance on the authority of NWANKWERE v ADEWUNMI (1996) All NLR 119, in aid of his submission that the Respondents did not act in good faith and within the precinct of their office, when they relied on a non-existing law to issue the directive to the Swiss Bank.

Countering the submission above, Counsel for the Respondents argued that the Appellant’s case before the lower courts was caught by the provisions of the Public Officers’ Protection Act, since it was not filed within three months of the act complained of. He argued that the issue of non-existence of the Banks (Freezing Account) Act, was outside the scope of the Public Officers’ Protection Act and that the words – “any law” in Section 2(2) of the Act, is not limited to the Bank (Freezing of Accounts) Act of 1984. Counsel opined that the action of the Respondents was necessitated by their public duty, and that by Section 5 of the Constitution of the Federal Republic of Nigeria, 1999, the President has a duty to act in the best interest of the overall wellbeing of the country, even in the absence of any law in existence, to allow for the recovery of stolen money stashed away in foreign accounts by past public officers. Counsel submitted that, lack of legal justification is not enough to strip the Respondents of the protection given by the Public Officers’ Protection Act, especially when they acted in accordance with Section 5 of the Constitution. He reacted to the argument of the Appellant about the Respondents acting outside the colour of their office, by stating that the action of the Respondents was justified, as there is no law which prohibits the Respondents from requesting the Swiss Authorities to freeze the Appellant’s accounts.

On the second issue, counsel drew the attention of the court to the conditions that must exist for the doctrine of estoppel per rem judicatam to be applied. Counsel relied on the conditions in aid of his submission that the subject-matter in Sulgrave Holdings INC and Ors v F.G.N. and Ors. (Suit No. FHC/ABJ/CS/347/2001), is not the same as that in the present appeal. He argued that the Respondents had the onus to prove that the Appellant was an economic beneficiary of Braven Company, and that the lower courts were wrong in their decisions when the Respondents did not furnish enough evidence. The Respondents, on their part, maintained that the suit was caught by the doctrine of res judicata as Suit No. FHC/KD/28/2003 and FHC/ABJ/CS/247/2003 contain identical subject-matters. Counsel submitted that the issue of absence of evidence to prove that the Appellant was an economic beneficiary of Braven Company, was not deposed to by the Appellant in the Affidavit in support of the Originating Summons, for the trial court to rely on same.

Court’s Judgement and Rationale
Their Lordships prefaced the resolution of the first issue, by stating that the limitation provision in the Public Officers’ Protection Act, was promulgated to provide protection against actions of public officers acting in execution of public duties – FAMILOJU v UNIVERSITY OF ILORIN (2007) 2 NWLR (Pt. 1017) 74. This limitation period, like every other one, is founded on public policy, as a stale claim may not only be unfair to the Defendant, it may actually wreak cruelty on him. Nonetheless, it is important to note that, what the statute bars is the action and not the cause of action. Whereas, the cause of action refers to the facts or combination of facts which the Plaintiff must adduce to be entitled to any relief, the action itself is the medium which affords him the opportunity to ventilate his bundle of facts – PATKUM INDUSTRIES LTD v NIGER SHOES LTD (1988) 5 NWLR (Pt. 93) 138. Thus, whereas the Plaintiff’s cause of action remains intact, although in a vacuous and bare form, a statute of limitation denudes him of his action, the right to judicial relief.

A Plaintiff, who desires to enjoy the dividends which recourse to the judicial process affords, must commence his action within the period stipulated by statute. Legal proceedings cannot be validly instituted after the expiration of the period prescribed by the law – SANDA v KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (Pt. 174) 374. Given the above, the action of the Appellant is statute barred; he cannot claim any right to judicial relief – EGBE v ADEFARASIN (1987) 1 NWLR (Pt. 47) 1.

On the Appellant’s contention that the Respondents acted outside the colour of their office/outside the scope of their statutory duty, by relying solely on a non-existent law – Banks (Freezing of Accounts) Act of 1984, the Supreme 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 his action, he will be protected under the Public Officers’ Protection Act. The delegation of power by the President of the Federal Republic of Nigeria to the Attorney-General of the Federation, to recover monies belonging to the people and Government of Nigeria looted and stashed away in foreign countries by past public officers, their family members and associates, is in exercise of a public duty owed the citizens and Government of this country by the President, to act in their best interests in accordance with the powers conferred on him by Section 5 of the 1999 Constitution.

With regard to the second issue, their Lordships held that, the lower court was right in upholding the decision of the trial court, relying on paragraph 63 of Exhibit 1, as the said exhibit forms part of the evidence before the court. The exhibit, which was attached to the affidavit in support of the Originating Summons, constitutes pleadings in the proceedings and the court is not bound to call parties to address it, since the documents were in court before argument was taken on the Originating Summons. The trial court has the power to study the proceedings and judgement in a previous action, even if the subject-matter and parties are not the same – ADONE v IKEBUDU (2001) 14 NWLR (Pt. 733) 385.

From the Records of Appeal, it can be seen that the subject in Suits FHC/KD/28/2003 and FHC/ABJ/CS/247/2003 or CA/A/221/2003 and the subject in the present suit, are identical. The reliefs claimed, are also identical. The position of the Appellant, that the subject of this appeal and the case of SULGRAVE HOLDINGS are not the same, and that the principle of res judicata is not applicable, is untenable. Once the end result of the two cases is the same, even if the reliefs are different, res judicata will apply – MINISTRY FOR WORKS v TOMAS (NIG) LTD (2002) 2 NWLR (Pt. 752) 740, 778-779.

Appeal Dismissed.

R.O. Atabo with S.O. Atabo, Esq.; D.O. Ogunniyi and I.O. Enagbonwa for the Appellant.

I.V. Ogiemwonyi with Oluseye Adebayo for the Respondents.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)