Whether States’ Public Officers are Protected by the Public Officers Protection Act 2004

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In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 13th day of March, 2020

Before Their Lordships
Olabode Rhodes-Vivour
Mary Ukaego Peter-Odili
Chima Centus Nweze
Amina Adamu Augie
Ejembi Eko
SC.990/2018

Between

CIL RISK & ASSET MANAGEMENT LIMITED APPELLANT
And

1. EKITI STATE GOVERNMENT
2. MINISTRY OF LANDS, HOUSING AND
URBAN DEVELOPMENT, EKITI STATE
3. ATTORNEY-GENERAL OF EKITI STATE
4. AFE BABALOLA UNIVERSITY RESPONDENTS

(Lead Judgement delivered by Honourable Ejembi
Eko, JSC)
Facts
The 1st Respondent revoked the Appellant’s Statutory Right of Occupancy over a parcel of land, which is evidenced by Certificate of Occupancy (C of O) No. DG 00104/2007 registered in the Lands Registry Office, Ekiti State. The revocation was published in the 1st Respondent’s Official Gazette No. 1, Volume 20 of 20th October, 2016. The parcel of land was subsequently re-allocated to the 4th Respondent. Further to this, the Appellant instituted an action at the High Court of Ekiti State by a Writ of Summons taken out on 16th January 2017, challenging the said revocation on the ground that it was illegal, unconstitutional and a nullity. The Appellant asked for a declaration that it remained vested with the Right of Occupancy over the land, and that its Right of Occupancy had neither been extinguished nor affected in law by the said revocation. It sought inter alia, a declaration that the re-allocation of the land to the 4th Respondent was unlawful. It also sought Perpetual Injunctive Orders to restrain the 1st to 3rd Respondent from issuing a fresh Certificate of Occupancy over the land to the 4th Respondent, and to restrain the 4th Respondent from interfering with its structures built on the land.

The Respondents, had by way of demurrer, instead of filing a Statement of Defence, filed Notices of Preliminary Objection supported by affidavits, in which they challenged the jurisdiction of the High Court of Ekiti State to entertain the suit, and asked that the suit be struck out in limine. The basis of their Preliminary Objections was that the Appellant’s suit was statute barred, having been instituted outside the three months period stipulated under Section 2 of the Public Officers Protection Act (POPA).

The Respondents alleged that the 1st to 3rd Respondent issued the Appellant with a notice of revocation via a letter dated 16th December, 2014, and any action to challenge the said revocation should have been instituted by the Appellant within three months from that date. The Respondents also challenged the suit, which they regarded as not disclosing any reasonable course of action. In their affidavit in support of the Notice of Preliminary Objection, the 1st – 3rd Respondent justified the revocation, on the ground that the Appellant had seriously violated the terms and conditions of the Certificate of Occupancy by failing to pay ground rents and failing to erect and complete buildings on the land, in accordance with the approved building plan within two years from the grant of the Statutory Right of Occupancy.

In a Ruling delivered on 5th June, 2017, the trial court upheld the Respondent’s Preliminary Objection and struck out the Appellant’s suit, on the ground that same was statute barred by virtue of Section 2(a) of POPA, having not been filed within three months after the revocation. The court also found that the suit did not disclose a reasonable cause of action, in the Statement of Claim. The Appellant’s appeal to the Court of Appeal was unsuccessful; hence, it filed a further appeal to the Supreme Court.

Issues for Determination
The Appellant submitted seven issues for determination of the appeal. However, the Apex Court decided the appeal on the two issues below:

1. Whether the Court of Appeal was right when it upheld the decision of the trial court that by virtue of Section 2(a) of
the Public Officers Protection Act, the Appellant’s suit was statute barred.

2. Whether the concurrent findings of fact by the Court of Appeal and the trial Court that the Appellant did not disclose any
reasonable cause of action in its Statement of Claim, was right.

Arguments
On the first issue, counsel for the Appellant argued that the suit was not caught by the operation of the Public Officers Protection Act; thus, the suit was not statute barred. Counsel for the Respondents argued conversely, that the Appellant’s suit was caught by Section 2(a), having been instituted outside the three months period from the date of the revocation of the Appellant’s Certificate of Occupancy on 22nd December, 2014, when the cause of action accrued.
Regarding the second issue, Counsel for the Appellant contended that the suit before the trial court as constituted in the Writ of Summons and the Statement of Claim, disclosed a reasonable cause of action upon which the trial court could adjudicate. This submission was refuted by Counsel for the Respondents, who argued that the suit did not disclose any reasonable cause of action, and that the Court of Appeal was right to have upheld the finding of the trial court in that regard.

Court’s Judgement and Rationale
On the first issue, the Supreme Court held that the Respondents erroneously took protection under the Public Officers Protection Act, 2004. The Act, which was enacted pursuant to Item 53 of the Exclusive Legislative List and Section 4(2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), applies only to protect public officers in the “public service of the Federation”. It has no general application such as to apply or offer protection to public officers in the service of Ekiti State, or any other State in the Federal Republic of Nigeria. The public service of Ekiti State being a matter within the residual list by Section 4(6) and (8) of the 1999 Constitution, only the Ekiti State House of Assembly can constitutionally legislate on it. The resort to the POPA, a Federal statute, to provide a statutory defence for the Respondents who are officers in the public service of Ekiti State, was thus, ultra vires.

The court held further that the protection under Section 2(a) of POPA does not apply in cases of recovery of land, as in the instant case – A-G RIVERS STATE v A-G BAYELSA STATE (2013) NWLR (Pt. 1340) 123 at 150 and MULIMA v USMAN (2014) 16 NWLR (Pt. 1432) 160 at 212.
Relying on OSUN STATE GOVERNMENT v DALAMI (NIG) LTD (2007) 9 NWLR (Pt. 1038) 66, the Supreme Court held that the provisions of Section 2(a) of POPA does not also extend to cases of breach of contract. The Appellant’s cause of action was premised on breach of the contractual terms in the Certificate of Occupancy by the 1st – 3rd Respondent, and it was clear from the ipse dixit of the Respondents, in the record of appeal, that they justified the revocation of the Appellant’s Statutory Right of Occupancy on the fact that the Appellant was in breach of the contract terms, conditions and obligations contained in the Certificate of Occupancy. The protection under Section 2 of POPA was thus, improperly invoked by the Respondent, and wrongfully upheld by the trial court and the Court of Appeal.

Deciding the second issue, the Supreme Court held that so long as the Statement of Claim discloses the cause the Plaintiff has to complain to the court against the Defendant for violation, infraction or imposition of undue burden on his legal right or obligations, or raises some question fit to be decided by the court or the Judge; a reasonable cause is disclosed thereby. A reasonable cause of action is disclosed once the Statement of Claim sets out the Plaintiff’s legal right qua the Defendant’s obligations towards him, and goes further to set out the facts constituting the infraction of the Plaintiff’s legal rights, or failure of the Defendant to fulfil his obligations towards the Plaintiff. It is not material at this stage, whether the case of the Plaintiff is strong or weak. The only thing important at this stage, is whether the court can decipher from the Statement of Claim, if there is either a prima facie triable case, or issue or there is a reasonable chance of success if no defence were offered – RINO CONSTRUCTION CO. LTD v VEEPEE IND LTD & ANOR. (2005) 9 NWLR (Pt. 929) 85 at 96.
Their Lordships held that, it was clear from the Notices of Preliminary Objection filed at the trial court by the Respondents, that the Respondents made efforts, at the interlocutory stage, to join issues with the Appellant on the salient allegations against them. They also raised special defences in law, without filing defence by way of demurrer, to the claims of the Appellants. It therefore, does not lie in their mouth to say that the Statement of Claim, in the circumstance, did not disclose any reasonable cause of action against them.
The Supreme Court concluded that, the concurrent finding of facts by the High Court of Ekiti State and the Court of Appeal that the Statement of Claim discloses no reasonable cause of action, was thus, perverse.

Appeal Allowed.

Suit restored on the cause list of the High Court of Ekiti State, to be heard and determined by another trial Judge.

Representation
Peter Nwatu with Michael Olawale and Chioma Ezeobika for the Appellant.

O. Olatawura, for the 1st for the 3rd Respondent.

Toyese Owoade, for the 4th Respondent.