Continuance of Injury under the Public Officers Protection Act

The Respondents as Plaintiffs, filed an action at the Federal High Court, Warri seeking inter

alia, a declaration that by virtue of the mandatory provisions of Sections 6, 36, 91 and 112 of the Constitution of the Federal Republic of Nigeria, 1999 and other enabling laws, the Delta State House of Assembly consisting of twenty-nine (29) members which is less than three (3) or four (4) times the number of seats which Delta State has in the National Assembly, is not properly constituted; a declaration that the Appellant does not have any power and/or discretion whatsoever to suppress the existing Ughelli South State Constituency 1 with Constituency Code No. SC/33/DT in the Delta State House of Assembly, lawfully created and approved by the National Assembly by omitting, failing, refusing and/or neglecting to include the Ughelli South State Constituency 1 in the approved list of State Constituencies. They also sought an Order directing and compelling the Appellant to restore forthwith, the Ughelli South State Constituency 1 so as to bring the composition and numbers of the created, delineated and delimited constituencies in the Delta State House of Assembly in compliance with the mandatory provisions of Section 91 and 112 of the Constitution of the Federal Republic of Nigeria, 1999.

The Appellant filed a notice of preliminary objection, and contended that the suit was statute barred, having not been instituted within three months after the accrual of the cause of action. He contended that the Court therefore, lacked jurisdiction to hear and determine the matter. The trial Court dismissed the Appellant’s preliminary objection and held that the complaints of the Respondents is a continuous act, which removes the protection granted under Section 2(a) of the Public Officers Protection Act. The Court, thereafter, granted all the reliefs sought by the Respondents. The Appellant, not satisfied with the decision, appealed to the Court of Appeal. The Court of Appeal affirmed the decision of the trial Court, and dismissed the Appellant’s appeal. The Appellant further appealed to the Supreme Court.

Issue for Determination The Appellant formulated four issues for the determination of the appeal. The same issues were adopted by the Respondent. However, the Supreme Court determined the suit on only one issue as follows:

Whether the Appellant is not protected by Section 2(a) of the Public Officers Protection Act CAP P41 of the Laws of the Federation of Nigeria, 2004 having regard to the circumstances of this case.

Arguments

Learned Counsel for the Appellant argued that the trial Court found that the difference between the time the Ughelli South State Constituency 1 was excised and suppressed, and the time of coming into life of this action was about 15 years in excess of the three months the Public Officer’s Protection Act, allocated for the commencement of an action against a Public Officer. He submitted that for that reason alone, the Court ought to have dismissed the suit. He relied on AJAYI v

ADEBIYI (2012) 11 NWLR (Pt. 1310) 137 in support of his assertion. He argued further that, the decision of the Court of Appeal on this issue of limitation applicable to Public Officers, has completely defeated the purpose and intendment of Section 2(a) of the Public Officers Protection Act.

Counsel for the Respondents on the other hand, argued that the Court below was correct when it held that the time for instituting the action by the Respondents had not elapsed or expired, as this could only expire on the cessation of the alleged wrong; that is, the suppression of Ughelli South State Constituency 1. He argued that the Appellant has been conducting elections without Ughelli South State Constitu-

"...THE ESSENCE OR EFFECT OF THE PUBLIC OFFICERS PROTECTION ACT IS TO EXTINGUISH THE CAUSE OF ACTION, IF IT IS COMMENCED AFTER THE STIPULATED PERIOD, WHICH IS THREE MONTHS, SUBJECT TO THE EXCEPTION PROVIDED FOR IN SECTION 2(A) OF THE ACT. THUS, WHERE THERE HAS BEEN A CONTINUANCE OF INJURY OR DAMAGE, A FRESH CAUSE OF ACTION ARISES FROM TIME TO TIME, AS OFTEN AS DAMAGE OR INJURY IS CAUSED"

ency 1 since 1998 – 2011 and for that reason, the cause of action continues and never ceased. He argued further that where a Public Officer acted in bad faith, and with no semblance of legal justification in the performance of his public duty, he cannot enjoy the protection under section 2(a) of the Public Officers Protection Act, 2004. He finally urged the Court not to disturb the concurrent findings of the two lower Courts.

Court’s Judgement and Rationale The Supreme Court held that the limitation law does generally either of two things; it either bars the remedy without extinguishing the right or bars the remedy and at the same time extinguishes the right. Whichever effect it has will depend on the particular statute. The effect of provisions of limitation laws, is to foreclose the right of action of a litigant, if his claim is not initiated within the stipulated time. In other words, although he might have a competent cause of action, his right to ventilate his grievance before a court of law may be curtailed by the provisions of a statute of limitation such as the Public Officers (Protection ) Act. The Court held further that ... the essence or effect of the Public Officers Protection Act, is to extinguish the cause of action if it is commenced after the stipulated period, which is three months, subject to the exception provided for in Section 2(a) of the Act. Thus, where there has been a continuance of injury or damage, a fresh cause of action arises from time to time, as often as damage or injury is caused.

The Supreme Court in explaining continuance of injury, relied on the case of MICHAEL OBIEFUNA v ALEXANDER OKOYE (1961) All NLR 357 at 360 and 362 where it was stated that Continuance of injury or damage means continuance of legal injury, and not merely continuance of the injurious effect of legal injury. The continuance of the injurious effect of an accident, is not a continuance of the injury or damage within the meaning of the Public Authorities Protection Act 1993’.

The Court stated that in the present case, the excision of Ughelli South State Constituency 1 for the elections conducted between 1999 till date was the effect of the excision by the Appellant in 1999. Their Lordships also found that there was in existence, a person who could be sued, and that the Respondents failed or neglected to take any step to redress the wrong allegedly done to them until 12th May 2014, more than 15 years after the cause of action accrued. The lower Courts having found that the constituency was excised in 1999 and without any further affidavit evidence on record, disclosing legal damages, failed to be guided by a number of judicial authorities of the Supreme Court on statute of limitation and thereby, arrived at a perverse decision.

The apex Court found that there is nothing to show that in acting the way the Appellant did, it acted in bad faith, maliciously or that its act was devoid of any legal justification. Thus, with the accrual of the cause of action in 1999 and the institution of the suit in 2014, a period of more than three months from the accrual of the cause of action, the suit so instituted was caught by the provisions of Section 2(a) of the Public Officers Protection Act and therefore, incompetent.

Appeal Allowed; the findings of the two lower courts were set aside and accordingly, the suit was struck out.

Representations:

S.O. Ibrahim with Alhassan A. Umar, Okechukwu Okeke and Bashir M. Abubakar for the Appellant

E.L. Akpofure, SAN with John Okoriko, V.O. Idiapho, E.K. Okoko and E.M. Kpuwhara for the Respondents Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))