(2018) LPELR-45174(CA)

Transcription

1 WARA & ORS v. KEBBI STATE URBAN DEVT AUTHORITY & ANOR CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Sokoto Judicial Division Holden at Sokoto ON WEDNESDAY, 11TH JULY, 2018 Suit No: CA/S/146/2016 MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal SALEH WARA & 12 ORS - Appellant(s) And 1. KEBBI STATE URBAN DEVELOPMENT AUTHORITY 2. ABUBAKAR BELLO BANDA RATIO DECIDENDI 1. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: When objection to a document being made use of in a case should be taken - Respondent(s) "On the question of whether Section 104 of the Evidence Act, 2011 was rightly invoked by the Court below in rejecting Exhibits A-Z3 for failure to certify the said documents as required under the provisions of the Act, the documents being public documents, the long and short of this issue, is that documents attached to an affidavit in an interlocutory application should not be objected to as the issue of admissibility does not arise at that stage. The leading authority for this proposition of the law is old as in 1970 in the case of ADEJUMO vs. GOV. OF LAGOS STATE (1970) ALL NLR (1) 187 where the apex Court per ADEMOLA, CJN stated at page 191 thus; "...Is it proper to object to a paragraph of an affidavit, or a document exhibited in an affidavit before the substantive action is heard or before it is known to what use document is put? We think not in our view objection should be taken when all the facts are put before the Court and not at the preliminary stage."per OHO, J.C.A. (P. 33, Paras. A-F) - read in context

2 2. PUBLIC OFFICER - PUBLIC OFFICERS' PROTECTION ACT: Whether the Public Officers Protection Act can protect an illegal act of a public officer in a declaration of title under contract "The first issue nominated for the determination of this Court invariably deals with the question of when a Public Officer's act would be said to have been done in pursuance of the execution of any law, public duty or authority as it has raised the question of whether the law protects an illegal act of a public officer in a declaration of title under contract. To begin, it may well be necessary to go over a few popularly decided cases on the geranel subject preparatory to the analysis to be conducted by this Court on the subject. In the case of EKEOGU vs. ALIRI (1991) 3 NWLR (PT. 179) 258 the Supreme Court held the view that the Act is designed to protect a public officer against any action, prosecution or other proceeding, and for any act done in pursuance of or execution of any law, public duty, or authority; or for any alleged neglect or default in the execution of any law, duty or authority. In FASORO vs. MILBORNE (1923) 4 NLR 85, where a District Officer ordered a policeman to slap the Plaintiff, the suit against him was commenced three months after the incident of assault and no reasons was given for the delay in commencing the action. The suit was of course rightly held to be statute barred. In the case of OBIEFUNA vs. OKOYE (1965) ALL NLR 357 the Plaintiff was injured while driving his motor bike, which was knocked down by the defendant who was in turn was driving a police truck. He commenced the proceedings after three months of the accident, because he had been in hospital for treatment all the time. The Court held than his claim must fail as one that is statute - barred. The single thread which seems to have linked majority of the cases decided in relation to the Protection accorded the Public Officer under the provision of Section 2 of the Public Officer's protection Act is that the express letters of the statute had to be adhered to despite the yearning expectation of justice by the aggrieved. See in this connection, the case of EKEOGU vs. ALIRI (Supra), the Plaintiff was injured in the eye by her class teacher in a public school. She went through different hospitals for treatment during which time three months had passed. But, quite unfortunately, she lost the eye. She sued for damages by her next friend (the mother). It was held that the action was statute - barred. Perhaps, the proper way to see the problems usually posed under the Act is that the limitation period of three (3) months within which action may be brought is the crux of the matter and for which the Courts would not compromise. In the more recent decision of the Courts on the subject, the position has not changed. See the case of SULGRAVE HOLDINGS INC & ORS vs. FGN & ORS (2012) 17 NWLR (PT. 1329) 309 AT 334 where the Supreme Court per GALADIMA, JSC had this to say; "The Public Officers Protection Act is a statute of limitation and the import of Section 2(a) thereof, is that where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance of execution of any law or of any default in the execution of any law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act, neglect, or default complained or in the case of continuing damage or injury within three months next after the ceasing thereof. What this means is that Public Officers Protection Act removes the right of action, the right of enforcement act and the right to judicial relief in a plaint. This leaves Applicants with a bare and empty or hollow cause of action which he cannot enforce because the alleged cause of action is statute-barred and cannot be maintained. See FADARE vs. ATTORNEY-GENERAL OF OYO STATE (1982) 4 SC 1; OBIEFUNA vs. OKOYE (1964)1 ALL NLR 96; EGBE vs. ADEFARASIN (NO 1) 1985) 1 NWLR (PT. 3) 549." The grouse of the Appellant against the decision of the lower Court is that the Public Officers Protection Act ought not to avail the Respondents because in the Appellant's claim is one grounded on a declaration of title under contract and that the Act does not protect acts of illegality on the part of the Public Officer. It should perhaps, be stated here that the only way the validity or illegality of the act of a public officer would come up for consideration is where an action was filed within the prescribed three (3) months period as anything short of that is bound to fail. See the case of EGBE vs. ADEFARASIN (1985) 1 (PT. 3) 549 AT 569 where the Supreme Court held as follows: "It is on the facts clear that Appellant has no cause of action against 2nd Respondent having not brought the action within the prescribed period of three months from the accrual of the cause of action - (See ADEYEMO vs. ADEGBOYEGA & COMMISSIONER OF POLICE (1973) VOL. 3, PART 11 ECSLR. 991, OLATAWURA, J.) Again where the Defendant has raised an unanswered plea of protection under the Public Officers Protection Law on the uncontested facts: as 2nd Respondent has done in this case, there is absolutely no basis for prying into the conduct of such a Defendant which gave rise to the action. The Court of Appeal need not have gone into the question of whether malice was relevant consideration in determining the liability of the 2nd Respondent. The issue before the Court was whether the 2nd Respondent was liable. I therefore agree entirely with the Appellant that the Court of Appeal was wrong, but for different reasons, to hold that 2nd Respondent was not actuated by malice. Similarly, Appellant was in error to contend that the question of malice with respect to the conduct of the 2nd Respondent was an issue before the Court of Appeal. As I have already stated there was no cause of action against the 2nd Respondent in respect of which he is answerable to the Appellant. See the case of INSPECTOR-GENERAL OF POLICE vs. OLATUNJI (SUPRA) and NWANKWERE vs. ADEWUNMI (1967) N.M.L.R. at p.45 are all irrelevant to the determination of this appeal." Once again in the case of EGBE vs. ALHAJI (1989) 1 NWLR (PT. 128) 546 AT 584, the Supreme Court per NNAMANI, JSC was rather straightforward on the issue when His Lordship clearly puts it across thus: "It does appeal to me that the words used in this legislation are plain and ought to be given their ordinary meaning. It is indeed the first rule of interpretation of statutes that statutes are to be construed in their ordinary and natural meaning of the words. See ATTORNEY-GENERAL vs. MUTUAL TONTINE WESTMISTER CHAMBER ASSOCIATION LTD (1976) 1 EX. D It is also a rule of interpretation to assume that, the legislature mean what they have actually expressed. See R. vs. BANBURY. In Section 2(a), there is no bad faith or good faith contained therein expressly. What seems to standout so vividly are the words shall not lie unless commenced within three months it seems to me that this is more a provision of limitation and is only of defense in the sense that a person sued after three months can rely on it to have the suit dismissed. In my view, the mandatory provision shall not lie indicates that the action cannot be maintained or cannot take off unless brought within three months. In my view, it is only when such action can be maintained, i.e. where there is a cause of action that the question of whether the action complained of was done in the execution of a public duty can be canvassed. To give an interpretation which allows examination of whether the action complained of was done in the execution of a public duty with reference to whether would mean that a public officer can even be used several years after his retirement for an action which he carried out in the execution of his public duty. That to my mind would completely destroy the main protection which the statue gives a public officer." On account of the facts pleaded in the Appellant's statement of claim which learned Appellant's Counsel seem to have made a heavy weather of the Supreme Court per UWAIS, JSC at page 512 in EGBE vs. ALHAJI (Supra) had this to say on the subject; "In a civil action, when the Defendant invokes in limine, the provisions of the Public Officer Protection Act, it is not proper for the trial Court to conclude or infer from the pleadings that the protection afforded the Defendant by the Law has been vitiated by malice or bad faith. What the trial Court is obliged to decide at that stage in whether the action is maintainable and not whether the Defendant is liable." Arising from the foregoing, I cannot help but be in agreement entirely with the apex Court that on the fact that the element of bad faith, malice, ill motive, deliberate exercise of power without authority and such like conduct raised against the Appellants can only be raised if the suit is filed within the three months period. Where the cause of action is already statute barred it would be needless waste of time under the scheme of things. In the case of FAJIMOLU vs. UNIVERSITY OF ILORIN (2007) ALL FWLR (PT. 350) 1351 AT this Court per OGUNWUMIJU, JCA had this to say: "Where the protection is not raised as a shield in limine and is merely pleaded, and issues are joined and evidenced led on it by the parties, the trial Court is entitled to examined the circumstances under which the cause of action of the act complained of was performed, in order for it, in determining liability, to decide whether the protection has been vitiated by malice or bad faith." By parity of reasoning, therefore, as it applies to the instant case, in which the protection was raised as a shield ab initio by the filing unto Court of a notice of preliminary objection by the Respondent, and in which issues were not joined and evidence led on the allegations of the Appellant, the Court was entirely correct not to have bothered to examine the circumstances under which the cause of action arose in order to determine whether the protection was vitiated in any materia particular. On specific issue of whether the public officer's protection Act would apply to disputes arising from contractual obligations, it is important to state that the Act would generally not protect the public officer where the claims of the parties are steeped in contract. See the case of old case of SALAKO vs. LEDB & ANOR (1953) 20 NLR 169 where the Court held that the provisions of Section 2(a) of the Public Officer's Ordinance (now Act) do not apply in cases of recovery of land, breaches of contract, claim for work done, etc., but the lingering question remains. The Public Officer's Protection Act is a statute of limitation. The groundswell of judicial opinion is that where the defendant invokes the protection in limine, it is not proper for the trial Court to conclude or infer from the pleadings that the protection afforded the defendant has been vitiated because the claims of the parties in one grounded in contract as what the Court is obliged to do at that stage is decide whether the action is maintainable and not whether the defendant is liable. See the observation of UWAIS, JSC (as he then was) in the case of EGBE vs. ALHAJI (Supra). In essence therefore, and as in the instant case, where the protection has been raised as a shield in limine and not merely pleaded, and issues not said to be joined between the parties and evidenced led thereon, the trial Court is precluded from examining the circumstances under which the cause of action of the act complained of was performed, in order for it to determining whether it is one steeped in contractual obligation and for which the protection accorded by the Act applies or not. See the observations of OGUNWUNMIJU, JCA in the case of FAJIMOLU vs. UNIVERSITY OF ILORIN (Supra). It is, perhaps important to state here that the only way the validity or illegality of the act of a public officer would come up for consideration is where an action was filed within the prescribed three (3) months period as anything short of that is bound to fail as in the instant case where the Appellants as Plaintiffs filed their case several months after the expiration of three (3) months. See the case of EGBE vs. ADEFARASIN (Supra). In the case, the cause of action arose sometimes in January, 2014 while the action was instituted on the 4th day of June, 2014 which is six month later, and service of the processes was not effected on the defendants/applicants until in September, 2014, some nine (9) months after the cause of action arose. The action having been brought outside the period of limitation of three (3) months, the action became statute barred as rightly decided by the Court below. The Supreme Court in EGBE vs. ADEFARASIN (Supra) per ANIAGOLU, JSC stated thus; "...based on the foregoing, I am satisfied that the defendants/applicants are public office and public officers at the material time when the act complained of occurred and that the action was brought outside the period stipulated by law and consequently the action was statute barred." To rather make matters worse for the Appellants as Plaintiffs in the instant case Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, Z, Z1, Z2 and Z3 as appeared in the records of appeal do not in the opinion of this Court appear to have established a valid and subsisting contract in fact and in law between the parties. The Exhibits are mere Application Forms, Stall Allocation Cards (which contains the conditions for the use of the stall if allocated) and payment received, which do not ex facie show that any binding contracts existed between the parties. There were also no Letters of Allocation exhibited as the Appellants should have to show evidence of a binding contract between the parties. It is for this reason that I am in agreement with learned Respondent's Counsel that the case cited by the Appellants in support of their arguments would have been relevant where the pleadings of the Appellants at the trial Court below would have demonstrated the existence of a valid contract and that failure to establish the existence of a contract between the parties."per OHO, J.C.A. (Pp , Paras. F-F) - read in context

3 FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice, sitting at Birnin Kebbi in suit no KB/HC/26/2014 Coram; I. B. MAIRIGA, CJ and delivered on the wherein the Court below dismissed the case of the Appellant on the strength of the Notice of Preliminary Objection filed by the Respondents, when the objection of the Respondents that Appellant s action was statute barred pursuant to Section 2(a) of the Public Officers (Protection) Law, Cap 119 Laws of Kebbi State of Nigeria 1999, was sustained by the Court below. In the Appellants Originating Summons filed on the the Appellants as Plaintiffs claimed against the Respondents as Defendants as follows; 1. A DECLARATION that by EXHIBIT A, S, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, Z, Z1, Z2, and Z3 there exist a contract between the claimant and the Kebbi State Government. 2. A DECLARATION that the 2nd defendant as an agent of the Kebbi State Government cannot unilaterally and lawfully act outside his powers, to revoke the claimants allocation of 1

4 stalls in the Birnin Kebbi Central Market without the consent of the 1st defendant. 3. A DECLARATION that the claimant being allotee of shops no SWK 8, SWF 8, SWF 18, SWF 9, SWF 7, SWQ 11, SWQ 3, SWQ 17, SWQ 4, SWQ 5, SWQ 19, SWF 1, SWQ 1, SWQ 8, SWQ 12, SWQ 13 and SWF 19 in the Birnin Kebbi central market are entitled to occupation and quite possession of the stalls. 4. AN ORDER directing the claimants being allottee of stalls no SWK 8, SWF 8, SWF 18, SWF 9, SWF 7, SWQ 11, SWQ 3, SWQ 17, SWQ 4, SWQ 5, SWQ 19, SWF 1, SWQ 1, SWQ 8, SWQ 12, SWQ 13 and SWF 19 in the Birnin Kebbi central market to take possession of their various stalls. 5. AN ORDER directing the 2nd Defendant; his agent, privies or assign not to disturb the claimants allocation of their various stalls/shop. 6. AN ORDER directing the 2nd Defendant to pay general and aggravated damages of two million naira only ( 2,000,000) to the claimant for preventing the claimants from enjoying their allocation of stalls. 7. AN ORDER directing the Defendant to pay the cost of filling and prosecuting this suit. 2

5 In defending this suit, the Respondents filed a notice of preliminary objection. After hearing and at the conclusion of trial, the learned trial judge in a considered judgment sustained the Respondents' preliminary objection and dismissed the claim of the Appellants as Plaintiffs. Dissatisfied with this judgment, the Appellant has appealed to this Court vide a notice of Appeal filed on the By an Amended Notice of Appeal filed on the , a total of four Grounds of Appeal were filed. ISSUES FOR DETERMINATION; The Appellants nominated a total of three (3) issues for the determination of the Appeal thus; 1. Whether Section 2 (a) of the Public Officers (Protection) Law, Cap 119 Laws of Kebbi State, 1996 protects an illegal act of a public officer in a declaration of title under contract (Ground 2)? 2. Whether Section 104 of the Evidence Act 2011 is applicable to Exhibit A-Z3 issued by the respondent and used against the respondent in a case based on affidavit evidence (Ground 3)? 3. Whether the Appellants who successfully proved their ownership by challenging the respondents power to revoke, will not be given judgment when the respondents have no any defense to their claim (Ground 4)? 3

6 On the part of the Respondent, the three (3) issues nominated by the Appellants were duly adopted by the Respondent and it was in respect of these issues that learned Counsel to both sides of this dispute addressed Court extensively in their respective Briefs of arguments. The Appellant s brief of Argument dated the settled by HUSSAINI ZAKARAYAU ESQ., was filed on the but deemed filed on the while the Respondent s brief of Argument dated and settled by SHAMSUDEEN JAAFAR ESQ., was filed on the but deemed filed Upon being served with the Respondent s brief of Argument, the Appellant filed a Reply brief dated and filed on the but also deemed filed At the hearing of the Appeal on the , learned Counsel adopted their briefs of Argument on behalf of their respective clients and urged the Court to decide the Appeal in their favour. SUBMISSIONS OF COUNSEL; APPELLANTS; ISSUE ONE: Whether Section 2 (a) of the Public Officers (Protection) Law, Cap 119 Laws of Kebbi State, 1996 protects an illegal act of a public officer in a declaration of title under contract? 4

7 In arguing this issue, learned Appellants Counsel cited the case ofcbn vs. ADEDEJI (2005)26 WRN 46:8 where it was held by the Court that the Public Officers Act does not apply to contracts thus; Respondents were on firm terrain because the privilege provided by the public officers protection Act, does not apply to contract cases. Respondents' cause of action certainly was founded on the breach of the contract of employment they had with the Appellant. In the case of the NIGERIAN PORTS AUTHORITY vs. CONSTRUCTION GENERALI FARSUPRA COGEFAR SPA and ANOR (1974) All NLR 945 at 955 the Supreme Court, while interpreting Section 97 of the Ports Protection Act, which is in pari materia with Section 2 of the Public Officers Protection Act, held that the law was not intended to apply to contracts." Learned Counsel contended that the Appellants claim before the trial Court as reproduced at the preceding sections of this judgment is grounded on contract as it is clear that the grouse of the Appellants is one that seeks a declaration that the contract between them and the Respondent is valid 5

8 and still subsisting. In his arguments by the Court s decision in CBN vs. ADEDEJI (Supra) Section 2 (a) of the Public Officers Protection Laws of Kebbi State, is not applicable and cannot be used as a shield by the Respondent in defeating the Appellants contractual claim. Counsel urged this Court to so hold and resolve this issue in favour of the Appellants. ISSUE TWO: Whether Section 104 of the Evidence Act 2011 is applicable to Exhibit A-Z3 issued by the respondent and used against the respondent in a case based on affidavit evidence? In arguing this Appeal, Counsel cited the case of GOV. KWARA STATE vs. IREPODUN BLOCK MANU. CO. (2013) 12 WRN 106 at 123:18 where the Court held thus; "A document attached to or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the Court and to be used, once the Court is satisfied that it is credible. Being already evidence before the Court (on oath), the formality of certification for admissibility (if it required certification) had been dispensed with. Of course, the reason for this is easy to deduce the first being that 6

9 affidavit evidence is already an admitted evidence before the Court, unlike pleadings which must be converted to evidence at the trial, at which issues of admissibility of an exhibit is decided; the second point is that an exhibited copy of a document attached to an affidavit evidence must, necessarily, be a photocopy or secondary copy (except where the document was executed in several parts or counter parts.. and the deponent has many of the parts to exhibit in original forms). It is therefore unthinkable to expect the exhibited copy to be certified by the adverse party before the Court can attach probative value to it." Against the backdrop of this position, the submission of Counsel is that the Respondents reliance on Section 104(1) of the Evidence Act in the instant case is a misconception of the law of evidence as it relates to affidavit evidence. He said that Section 104(1) of the Evidence Act is only applicable in a situation where documents are to be tendered by a witness in a trial. Counsel cited the case of GOV. KWARA STATE vs. IREPODUN BLOCK MANU. CO (Supra) at 123:18 at 124 where the Court observed thus; 7

10 "And in the case of CRPD & INVEST CO. LTD vs. OBONGBA (2000) 89 NWLR (PT. 670) 751 AT 765 this Court held: Only certified true copies of public documents are admissible in evidence in legal proceedings and only objection to admissibility of public document not properly certified can be raised during trial. In the instant case, there was no way the Appellant could have objected to the admissibility of Exhibit 'C' and 'F in its affidavit without running foul of Section 87 of the Evidence Act." Counsel further submitted that the law of evidence relating to documents in an affidavit is that they must not be objected to until the substantive action comes up for hearing. Counsel urged the Court to so hold. Counsel therefore contended that the Respondents Counsel misunderstood the law when he submitted that EXHIBIT A- Z3 were inadmissible in law and urged the Court not look at them. He urged the Court to resolve this issue in favour of the Appellant. ISSUE THREE: Whether the Appellants who successfully proved their ownership by challenging the Respondents power to revoke, will not be given judgment when the Respondents have no defense to their claim. 8

11 In arguing this Appeal, Counsel referred Court to the case of HENRY LTD vs. YAKUBU LTD (2009) 38 NSCQR 392 at 395:4 where the Supreme Court held thus: "It is now settled law that an affidavit evidence constitute evidence and any deposition therein not challenged, is deemed admitted." It was further argued by Counsel that in the instant case, the Respondent who relied heavily on their preliminary objection in their defense did not file any counter affidavits in opposition of the averments in the Appellants affidavit and for this reason, he submitted that the averments in the supporting affidavits of Appellants as Plaintiffs are deemed admitted and Counsel urged this Court to so hold. Counsel further submitted that the Respondents having admitted the Appellants claims without countering same, he urged this Court to enter Judgment for the Appellants as contained in their claim. RESPONDENTS: ISSUE ONE; Whether Section 2(a) of the Public Officers (Protection) Law Cap 119 Laws of Kebbi State, 1996 protect an illegal act of a public officer in a declaration of title under contract. 9

12 In arguing this issue, Counsel referred to the case of C.B.N vs. ADEDEJI (2005) 26 WRN 46:8 cited by the Appellants in support of their argument and contended that the case is not relevant and that it is inapplicable in the present situation. He argued that the case is relevant only where there is a subsisting contract and breach by one of the parties arises. According to Counsel, there was no contract at all. In assuming but not conceding that Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, Z, Z1, Z2 and Z3 as appeared in the records of appeal are admissible in law, he said that they cannot establish and/or constitute a valid and subsisting contract in fact and in law. He also said that the attached Exhibits are mere Application Forms, Stall Allocation Cards (which contains the conditions for the use of the stall if allocated) and payment received which has not been proved by the Appellants to have been duly issued by the Defendants/Respondents. Counsel further said that there was no Allocation Letter to the Appellants by the Respondents and as such there was no contract. Counsel referred to the purported attached Exhibits in the Record of Appeal. 10

13 It was further argued by Counsel that the case cited by the Appellants might have been relevant where the pleadings of the Appellants at the trial Court proved the existence of a valid contract and that failure to establish the existence of a contract between the Appellants and the Respondents is fatal to the case of the Appellants. Counsel drew attention to paragraph 5 (a-x) of the Defendants' Counter Affidavit and paragraphs 3.1 to 3.15 of the Defendants' Written Address in the records of proceedings. It was further argued that the Appellants must prove the existence of contract first before alleging breach of contract. Counsel cited the of BANK OF THE NORTH LTD vs. MEMUDU ADIGUN ONIYO [2002] 20 WRN 83; I.B.W.A. LTD vs. UNAKALAMBA [1998] 9 NWLR (PT. 565) 245; EZENWA vs. EKONG (1999) 11 NWLR (PT. 625) 35; OMIDIJI vs. FEDERAL MORTGAGE BANK (2001)13 NWLR (PT. 731) 646; OHAKANU vs. NLEMAGU [2002] 33 WRN 100; CARPENTER vs. BELLO [1970] ANLR 455; E.O. AMODU vs. DR. J.O. AMODE (1990) 5 NWLR (PT. 150) 356. Learned Counsel also cited the case of LASISI ADEGBESAN ABIMBOLA v SAKA ABATAN [2001] FWLR (PT. 46) PG 989, on the principle of law that in civil 11

14 cases, the onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to the remedy he claims and that the Plaintiff must rely on the strength of his own case and not on the weakness of the defendant's case and if this onus is not discharged, the weakness of the defendant's case may not help him and the proper judgment will be for the defendant. See KODILINYE vs. MBANEFO ODU (1935) 2 W.A.C.A 336 at 337; FREMPONG vs. BREMPONG (1952) 14 W.A.C.A 13; WOLUCHEM vs. GUDI (1981) 5 S.C It was further contended by Counsel that assuming that there was a valid and subsisting contract between the Appellants and Respondents, the fact that more than three months elapsed before instituting the case by the Appellants at the trial Court rob the Appellants of their right to seek for remedy before the Court. And that the learned trial judge in his well-considered judgment as appeared in the records of appeal stated thus - there is no dispute in the instant case that the defendants/applicants are public office and public officer and that the cause of action arose sometimes in January, 2014 while the action was instituted on 12

15 the 4th day of June, 2014 which is six month later, and was served to the defendants/applicants in September, 2014, nine (9) months after the cause of action arose. It follows therefore that the action was brought outside the period of 3 months. It is trite law that if the action is barred by statute, no amount of resort to the merits of the case will serve to keep the action in being. That has been the decision of the Supreme Court in EGBE vs. ADEFARASIN No. 2 (1987) 1 NWLR (PT. 47) 13, per ANIAGOLU, JSC. Based on the foregoing, I am satisfied that the defendants/applicants are public office and public officer at the material time when the act complained of occurred and that the action was brought outside the period stipulated by law and consequently the action was statute barred." The submission of Counsel is that based on the provisions of Section 2(a) of the Public Officers (Protection) Law Cap 119 Laws of Kebbi State of Nigeria, the case of C.B.N vs. ADEDEJI (supra) cited by the Appellants is irrelevant as it was not determined under the provisions of Section 2(a) of the Public Officers (Protection) Law, Cap 119 Laws of Kebbi 13

16 State of Nigeria; that the holdings of the trial judge and the failure of the Appellants to establish the existence of the contract between themselves and the Respondents renders the case of the Appellants futile. It was further submitted by Counsel that the findings of fact of the Court below, which was supported by evidence that the action was instituted outside the three (3) months statutory period cannot be interfered with by the Appellate Court. Counsel cited the case of OGUANUHU vs. CHIEGBOKA [2003] 25 WRN 113 in support. He urged this Court to resolve issue number one in favor of the Respondents, affirm the decision of the trial lower Court and dismiss this Appeal as it is lacking in merit. ISSUE TWO; Whether Section 104 of the Evidence Act, 2011 is applicable to Exhibits A-Z3 issued by the Respondent and used against the Respondent in a case based on affidavit evidence? In arguing this issue, Counsel cited the case of GOV. KWARA STATE vs. IREPODUN BLOCK MANU. CO (Supra) and submitted that the Court made a proviso in its holdings in the following words -... is deemed to be properly before the Court and to be used, once the Court is satisfied that it is credible... 14

17 Counsel next reproduced verbatim the holdings of the learned trial Judge in his well-considered judgment at pages 159 to 160 of the record of Appeal. From the wordings of the learned trial Judge, whom Counsel opined captured the true position and distinguishable situations between the cases cited and relied upon by the Appellants, Counsel submitted that the cases cited by the Appellants are irrelevant and not applicable in the instant case and urged this Court not to rely on the said authorities. It was further submitted by Counsel that the position of the law is that Section 104 of the Evidence Act, 2011 on certification of Public Documents as a prerequisite to its admissibility in a Court of law is still valid and must be complied with by the Appellants, failure of which renders all the Exhibits attached to the supporting affidavit worthless. He urged this Court to so hold and to resolve this issue in favour of the Respondents. ISSUE THREE; Whether the Appellants who successfully proved ownership by challenging the Respondents power to revoke, will not be given judgment when the Respondents have no any defense to their claim? 15

18 In arguing this issue, Counsel contended that the Respondents' defense at the trial Court can be seen in the Records of Appeal where the Respondents stated the true position of the case in the Defendants' Counter Affidavit' to the effect that there was nothing before the Court to back the claims of the Claimants and up to the end of the case at the trial Court the Claimants failed woefully to do so. Counsel also contended that Application form or Application for Stalls can never stand in a position of Stall Allocation Letter. He added that there is nowhere in the Appellants' proceedings where stall allocation letter was exhibited to back the assertions of the Appellants. He contended further that the Claimants must prove their case to the standard of prove required in civil proceedings to be entitled to a judgment of Court. Counsel submitted that apart from the failure on the part of the Appellants to prove their case on the preponderance of evidence as required by law in civil cases, there were other irregularities that raises many loopholes in the case of the Appellants at the trial Court. 16

19 He referred this Court to the Records of Appeal, specifically at paragraph 3.15 of the referred pages and contended that in the Records of Appeal, specifically paragraphs 1.0 to 4.3 of the Defendants written address the said documents were properly before the Court via motion number KB/HC/M.188/2014 dated 3rd November, 2014 for extension of time for the Defendants/Respondents to file their processes, which included Defendant Counter Affidavit and Written Address. According to Counsel, the motion was granted on the 7th July, He argued that the Respondents did not rely solely on the Preliminary Objection but rather filed their defense to the suit contrary to the assertion of the Appellants. Counsel urged this Court to resolve issue three in favour of the Respondent and to dismiss the Appeal. The Appellant s Reply Brief was mainly repetitive of the issues already argued in the Appellant s Brief and for this reason, it is stuck out. RESOLUTION OF APPEAL The facts of the case are clearly not in controversy. They are very well set out in the briefs of arguments of the parties. The facts have it that the Appellants are businessmen 17

20 based in Birnin Kebbi before and after the creation of Kebbi State in 1991 and that upon the creation of Kebbi State, the State Government decided to establish a new modern market complex in the State Capital 'Birnin Kebbi' and as a result of which the State Government invited applications from interested parties for the allocation of market stalls. The Appellants herein were some of the applicants who applied and were said to have been each allocated stalls in their various names. While construction of the stalls took place at the new central market Birnin Kebbi, the old market stalls were razed by fire and as a result of which the Kebbi State Government quickly relocated the old market to the new market site, with the result that those applicants whose stalls were completed at the new market complex were allocated theirs while those whose own were not completed were requested to hold on pending the completion of new stalls. This was in 2006 and the Appellants were among those whose stalls were, at the time yet to be completed and had to wait. However, due to the changes in Government and bureaucratic slots and other administrative bottle-necks, 18

21 these stalls were not completed until sometimes in The 1st Respondent, herein is the body in charge of the management of the market while the 2nd Respondent is the General Manager of the new central market Birnin Kebbi appointed by the 1st Respondent. Upon the completion of the new market stalls, the Appellants approached the 2nd Respondent and requested to be allowed to take possession of their allocated stalls, but the 2nd Respondent refused claiming that their allocation has since been revoked and that other stalls will be allocated to them in due course. The Appellants were forced to take their complaints to the 1st Respondent and the 1st Respondent s response to them was that no such instruction was given to the 2nd Respondent to allocate any fresh stalls to the Appellants, as the said 2nd Respondent had acted on a frolic of his own. This led to the institution of suit no KB/HC/26/2014 by the Appellants as Plaintiffs at the Court below challenging the powers of the 2nd Respondent to revoke their allocation. In defending this suit, the Respondents filed a notice of preliminary objection. 19

22 After hearing and at the conclusion of trial, the learned trial judge in a considered judgment sustained the Respondents' preliminary objection and struck out the claim of the Appellants as Plaintiffs. In urging the lower Court to strike out Appellant s suit, the Respondents canvassed five (5) Grounds, the first and second of which were that the Plaintiffs suit was statute barred; the Plaintiff having failed to commence his suit within three (3) months from the date the cause of action arose pursuant to Section 2(a) of the Public Officers Protection Act Cap P41 LFN 2004 and thirdly, that the Plaintiffs failed to comply with Section 104 of the Evidence Act, 2011 and sundry other reliefs. At the conclusion of hearing of the notice of objection, the lower Court spared no moments in throwing the matter out. This has been the cause of this Appeal in this Court. The question here is was the lower Court right in throwing out the Appellant s suit the way it did? The answer to this question shall be made known in the course of this judgment. The first issue nominated for the determination of this Court invariably deals with the question of when a Public Officer s act would be said to have 20

23 been done in pursuance of the execution of any law, public duty or authority as it has raised the question of whether the law protects an illegal act of a public officer in a declaration of title under contract. To begin, it may well be necessary to go over a few popularly decided cases on the geranel subject preparatory to the analysis to be conducted by this Court on the subject. In the case of EKEOGU vs. ALIRI (1991) 3 NWLR (PT. 179) 258 the Supreme Court held the view that the Act is designed to protect a public officer against any action, prosecution or other proceeding, and for any act done in pursuance of or execution of any law, public duty, or authority; or for any alleged neglect or default in the execution of any law, duty or authority. In FASORO vs. MILBORNE (1923) 4 NLR 85, where a District Officer ordered a policeman to slap the Plaintiff, the suit against him was commenced three months after the incident of assault and no reasons was given for the delay in commencing the action. The suit was of course rightly held to be statute barred. In the case of OBIEFUNA vs. OKOYE (1965) ALL NLR 357 the Plaintiff was injured while driving his motor bike, 21

24 which was knocked down by the defendant who was in turn was driving a police truck. He commenced the proceedings after three months of the accident, because he had been in hospital for treatment all the time. The Court held than his claim must fail as one that is statute - barred. The single thread which seems to have linked majority of the cases decided in relation to the Protection accorded the Public Officer under the provision of Section 2 of the Public Officer s Protection Act is that the express letters of the statute had to be adhered to despite the yearning expectation of justice by the aggrieved. See in this connection, the case ofekeogu vs. ALIRI (Supra), the Plaintiff was injured in the eye by her class teacher in a public school. She went through different hospitals for treatment during which time three months had passed. But, quite unfortunately, she lost the eye. She sued for damages by her next friend (the mother). It was held that the action was statute - barred. Perhaps, the proper way to see the problems usually posed under the Act is that the limitation period of three (3) months within which action may be brought is the crux of the matter and for which the Courts would not compromise. 22

25 In the more recent decision of the Courts on the subject, the position has not changed. See the case of SULGRAVE HOLDINGS INC & ORS vs. FGN & ORS (2012) 17 NWLR (PT. 1329) 309 AT 334 where the Supreme Court per GALADIMA, JSC had this to say; The Public Officers Protection Act is a statute of limitation and the import of Section 2(a) thereof, is that where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance of execution of any law or of any default in the execution of any law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act, neglect, or default complained or in the case of continuing damage or injury within three months next after the ceasing thereof. What this means is that Public Officers Protection Act removes the right of action, the right of enforcement act and the right to judicial relief in a plaint. This leaves Applicants with a bare and empty or hollow cause of action which he cannot enforce because the alleged cause of action 23

26 is statute-barred and cannot be maintained. See FADARE vs. ATTORNEY-GENERAL OF OYO STATE (1982) 4 SC 1; OBIEFUNA vs. OKOYE (1964)1 ALL NLR 96; EGBE vs. ADEFARASIN (NO 1) 1985) 1 NWLR (PT. 3) 549. The grouse of the Appellant against the decision of the lower Court is that the Public Officers Protection Act ought not to avail the Respondents because in the Appellant s claim is one grounded on a declaration of title under contract and that the Act does not protect acts of illegality on the part of the Public Officer. It should perhaps, be stated here that the only way the validity or illegality of the act of a public officer would come up for consideration is where an action was filed within the prescribed three (3) months period as anything short of that is bound to fail. See the case of EGBE vs. ADEFARASIN (1985) 1 (PT. 3) 549 AT 569 where the Supreme Court held as follows: It is on the facts clear that Appellant has no cause of action against 2nd Respondent having not brought the action within the prescribed period of three months from the accrual of the cause of action - (See ADEYEMO vs. ADEGBOYEGA & COMMISSIONER OF 24

27 POLICE (1973) VOL. 3, PART 11 ECSLR. 991, OLATAWURA, J.) Again where the Defendant has raised an unanswered plea of protection under the Public Officers Protection Law on the uncontested facts: as 2nd Respondent has done in this case, there is absolutely no basis for prying into the conduct of such a Defendant which gave rise to the action. The Court of Appeal need not have gone into the question of whether malice was relevant consideration in determining the liability of the 2nd Respondent. The issue before the Court was whether the 2nd Respondent was liable. I therefore agree entirely with the Appellant that the Court of Appeal was wrong, but for different reasons, to hold that 2nd Respondent was not actuated by malice. Similarly, Appellant was in error to contend that the question of malice with respect to the conduct of the 2nd Respondent was an issue before the Court of Appeal. As I have already stated there was no cause of action against the 2nd Respondent in respect of which he is answerable to the Appellant. See the case of INSPECTOR-GENERAL OF POLICE vs. OLATUNJI (SUPRA) and NWANKWERE vs. ADEWUNMI (1967) N.M.L.R. at p.45 are all irrelevant to the determination of this appeal." 25

28 Once again in the case of EGBE vs. ALHAJI (1990) 1 NWLR (PT. 128) 546 AT 584, the Supreme Court per NNAMANI, JSC was rather straightforward on the issue when His Lordship clearly puts it across thus: It does appeal to me that the words used in this legislation are plain and ought to be given their ordinary meaning. It is indeed the first rule of interpretation of statutes that statutes are to be construed in their ordinary and natural meaning of the words. See ATTORNEY-GENERAL vs. MUTUAL TONTINE WESTMISTER CHAMBER ASSOCIATION LTD (1976) 1 EX. D It is also a rule of interpretation to assume that, the legislature mean what they have actually expressed. See R. vs. BANBURY. In Section 2(a), there is no bad faith or good faith contained therein expressly. What seems to standout so vividly are the words shall not lie unless commenced within three months it seems to me that this is more a provision of limitation and is only of defense in the sense that a person sued after three months can rely on it to have the suit dismissed. In my view, the mandatory provision shall not lie indicates that the action cannot 26

29 be maintained or cannot take off unless brought within three months. In my view, it is only when such action can be maintained, i.e. where there is a cause of action that the question of whether the action complained of was done in the execution of a public duty can be canvassed. To give an interpretation which allows examination of whether the action complained of was done in the execution of a public duty with reference to whether would mean that a public officer can even be used several years after his retirement for an action which he carried out in the execution of his public duty. That to my mind would completely destroy the main protection which the statue gives a public officer. On account of the facts pleaded in the Appellant s statement of claim which learned Appellant s Counsel seem to have made a heavy weather of the Supreme Court per UWAIS, JSC at page 512 in EGBE vs. ALHAJI (Supra) had this to say on the subject; In a civil action, when the Defendant invokes in limine, the provisions of the Public Officer Protection Act, it is not proper for the trial Court to conclude or infer from the pleadings that the 27

30 protection afforded the Defendant by the Law has been vitiated by malice or bad faith. What the trial Court is obliged to decide at that stage in whether the action is maintainable and not whether the Defendant is liable. Arising from the foregoing, I cannot help but be in agreement entirely with the apex Court that on the fact that the element of bad faith, malice, ill motive, deliberate exercise of power without authority and such like conduct raised against the Appellants can only be raised if the suit is filed within the three months period. Where the cause of action is already statute barred it would be needless waste of time under the scheme of things. In the case of FAJIMOLU vs. UNIVERSITY OF ILORIN (2007) ALL FWLR (PT. 350) 1351 AT this Court per OGUNWUMIJU, JCA had this to say: Where the protection is not raised as a shield in limine and is merely pleaded, and issues are joined and evidenced led on it by the parties, the trial Court is entitled to examined the circumstances under which the cause of action of the act complained of was performed, in order for it, in determining liability, to decide whether the protection has been vitiated by malice or bad faith. 28

31 By parity of reasoning, therefore, as it applies to the instant case, in which the protection was raised as a shield ab initio by the filing unto Court of a notice of preliminary objection by the Respondent, and in which issues were not joined and evidence led on the allegations of the Appellant, the Court was entirely correct not to have bothered to examine the circumstances under which the cause of action arose in order to determine whether the protection was vitiated in any materia particular. On specific issue of whether the public officer s protection Act would apply to disputes arising from contractual obligations, it is important to state that the Act would generally not protect the public officer where the claims of the parties are steeped in contract. See the case of old case of SALAKO vs. LEDB & ANOR (1953) 20 NLR 169 where the Court held that the provisions of Section 2(a) of the Public Officer s Ordinance (now Act) do not apply in cases of recovery of land, breaches of contract, claim for work done, etc., but the lingering question remains. 29

32 The Public Officer s Protection Act is a statute of limitation. The groundswell of judicial opinion is that where the defendant invokes the protection in limine, it is not proper for the trial Court to conclude or infer from the pleadings that the protection afforded the defendant has been vitiated because the claims of the parties in one grounded in contract as what the Court is obliged to do at that stage is decide whether the action is maintainable and not whether the defendant is liable. See the observation of UWAIS, JSC (as he then was) in the case of EGBE vs. ALHAJI (Supra). In essence therefore, and as in the instant case, where the protection has been raised as a shield in limine and not merely pleaded, and issues not said to be joined between the parties and evidenced led thereon, the trial Court is precluded from examining the circumstances under which the cause of action of the act complained of was performed, in order for it to determining whether it is one steeped in contractual obligation and for which the protection accorded by the Act applies or not. See the observations of OGUNWUNMIJU, JCA in the case of FAJIMOLU vs. UNIVERSITY OF ILORIN (Supra). 30