Action Against Public Officer Acting In The Country’s Interest

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
Ejembi Eko
Justices, Supreme Court
SC.359/2010

Between

Alhaji Ali Abacha Appellant

And

Attorney-General of the Federation Respondent

(Lead Judgement delivered by Honourable Kudirat
Motonmori Olatokunbo Kekere-Ekun , JSC)

Facts

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 their 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repealed on the 29th day of May, 1999.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
was 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 availed
the Respondent whose action was predicated on a repealed or
non-existing law.

Arguments

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 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 authorising the act, offers
the protection provided under the law. Counsel posited further that
there was no imputation of bad faith against the Respondent, and
even though he might have been accused of overzealousness or error
of judgement, 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 was 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 against 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 would
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 & THE ATTORNEY-GENERAL
OF THE FEDERATION – SC.68/2010, which facts and issues were 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.

Appeal Dismissed.

Representation
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.

Reported by Optimum Publishers Limited, Publishers of the
Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin &
Co.)

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
Ejembi Eko
Justices, Supreme Court
SC.359/2010

Between

Alhaji Ali Abacha Appellant

And

Attorney-General of the Federation Respondent

(Lead Judgement delivered by Honourable Kudirat
Motonmori Olatokunbo Kekere-Ekun , JSC)

Facts

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 their 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 the 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
was 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 availed
the Respondent whose action was predicated on a repealed or
non-existing law.

Arguments

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 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 authorising the act, offers
the protection provided under the law. Counsel posited further that
there was no imputation of bad faith against the Respondent, and
even though he might have been accused of overzealousness or error
of judgement, 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 was 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 against 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 would
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 & THE ATTORNEY-GENERAL
OF THE FEDERATION – SC.68/2010, which facts and issues were 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.

Appeal Dismissed.

Representation
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.

Reported by Optimum Publishers Limited, Publishers of the
Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin &
Co.)