ACTIONS AGAINST THE GOVERNMENT

INTRODUCTION

In ancient times it was virtually impossible for anyone to

conceive of suing the government. This is because of the

doctrine of sovereign immunity under which the king or the

queen is immune from legal action. In the words of Aihe and

Oluyede1

“Sovereign immunity is an English doctrine of great

antiquity. It originated from the old feudal structure

of English Society”.

Professor H. Street observes that: ‘just as no lord could be

sued in the court which he held to try the cases of his

tenants, so the king at the apex of the feudal pyramid and

subject to the jurisdiction of no other court was not liable’2.

The presumption at those times was summarised by the maxim “rex

non potest peccare” which means that the king could do no wrong.

However, it has been pointed out elsewhere, that the

statement, the king can do no wrong actually means that “the

king must not, was not allowed to, was not entitled to do any

wrong”3

Historically, the king in England was the first common law

judge. As a judge he was respected by the people and expected

to live above board and all manner of wrongdoing. As expressed1 Cases and materials on Constitutional and Administrative Law in Nigeria, (Oxford UniversityPress 1979)2 Government Liability, 19533 Professor L. Jaffe quoting Ehrlich, ‘Proceedings against the Crown,1216-1377’ in Vol 6 Oxford Studies in Social and Legal History 1921 p. 42

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elsewhere, “the king ought to be under God and the law because

the law made him king”4. In the words of Prof Ewelukwa,

“Two fundamental legal principles of great antiquity –

one procedural and the other substantive – accounted for

this [i.e. immunity] and made direct action or

justification of certain claims against the crown

impossible and futile. First, the feudal rule that no

lord of the manor could be sued in his own court meant

that the king too, being the great overlord of all and

the peak of the English social system, could not be sued

either in his own court or in the court of any of his

vassals. Added to this procedural difficulty was the

principle of substantive law that ‘the king can do no

wrong’ which in effect meant that no act or omission of

the sovereign was open to impeachment or condemnation on

the ground that it was wrongful or tortious. The first

barred all access to the courts, except where the

permission was given, the claim based on tort would fail

for…imputing wrongs to the crown”5.

Thus it follows that not only could he not do wrong; he could

not be sued in his own court. This immunity also covered his

servants as they were presumed to be acting on the orders of

the king and since the king could not be sued, then action may

not be maintainable against his servants.

4 Henry de Bracton cited by Denis Lloyd The idea of Law 7th ed. P 315 D. I. O. Ewelukwa Proceedings By and Against the State in Nigeria (1973) Nig. Bar J. 10,11

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With the passage of time, it became clear that there would be

situations where people had legitimate complaints against the

state or the servants. Since action was not maintainable

against the king, it followed that any citizen of the king who

is aggrieved by any act of the king, had no remedy; and such

losses could not be compensated for. The king thereupon began

to endorse his consent on the petitions where there were

allegations of wrongdoing against the king, and allow the

petitions to be heard on the merits of the cases. This

endorsement of fiat justitia6 empowered the courts to proceed and

adjudicate on the matters whether against the king or against

his servants acting on his authority. Thus it became possible

for any citizen who is aggrieved by any act of the agents of

the king, to go to court so that the losses incurred could be

remedied. This led to the Petition of Rights.

With the passage of time and the gradual move from monarchy to

statehood, this doctrine of sovereign immunity took on a new

garb called “state immunity”. This excludes the executive from

liability for any delicts7. Thus the members of the executive

though elected by the populace could not be sued by the

members of the public for any tortious acts. The application

of this doctrine in a nation like Great Britain in past years

till recently has not raised any surprises since the

monarchical system in operation in England had always been one

greatly respected or worshipped, and while one may not wonder

6 Meaning : let justice be done7 Akin Ibidapo-Obe Enforcement of Rights and the Problem of Locus Standi in Nigeria (2003) 2 UNAD L. J. 113

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how it found its way into Nigeria, (due to Nigeria’s colonial

antecedents) Prof Schwartz says the introduction of the

doctrine into the United States of America, where sovereign

power resided with the people and the chief of state was

never sovereign is a mystery to certain American jurists8. In

his words,

‘That the English doctrine should have been introduced

into the United States where there was no king, where

the chief of state was never sovereign, where from the

beginning sovereign power resided with the people, has

appeared a mystery to certain American jurists

themselves, and it is difficult to comprehend…..how a

democratic republic, where the rights of the individual

against the state are fundamental legal principles,

people could have accepted the doctrine of sovereign

immunity of state and its non-liability for damages

inflicted by its agents on private individuals.’9

THE PETITION OF RIGHTS

The emergence of this means that the king or state could be

petitioned for the right to have a matter filed and heard by

the court. This procedure was later given legal backing by the

enactment of the Petitions of Right Act 1860. Under this law,

a claim made against the government was handled in accordance

with the ordinary laws of the land with no special privileges

accorded to the Crown against the aggrieved party. Once the8 Schwartz An Introduction to American Administrative Law (1962)9 Schwartz op. cit. at p. 226 quoting Garner, ‘La Conception anglo-américaine du droit administratif’ in Mélanges Maurice Harriou (1929) p. 377

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king or the state consented to the action, the parties are

placed on equal footing. But what happens when the state

refuses to consent to the action? It appears the aggrieved

party would have no remedy10.

Naturally since this law preceded 1900, it became part of the

received English law in operation in Nigeria. It was enacted

as the Petitions of Right Act Cap 149, Laws of the Federation

of Nigeria and of Lagos 1958. And this law was the position

until the 1979 Constitution came into force. It is worth

stating that before the 1979 Constitution was enacted in

Nigeria, the Petition of Rights Act was abolished in England

by the enactment of the Crown Proceedings Act 1947.

But meanwhile in Nigeria, the state could not be sued for any

tortious acts of its agents; except consent to file the action

was obtained through the Attorney-General. Interestingly, the

1963 Republican Constitution did not make any attempt to

repeal this provision, even though as earlier pointed out; it

was no longer good law in England from where it was imported.

Section 3 of the Petitions of Right Act11 provides that:

10 See the dictum of Olatawura JCA in Government of Imo State of Nigeria v. Greeco Construction & Engineering Associates Ltd (unreported) Suit No. CA/E/90/84 of 2nd May, 1985 where he said: “The right to refuse the fiat under Section 5 of the Petitions of Right Law is final and conclusive. There is no provision for redress once the fiat is refused. In other words, a citizen who comes by way of the Petitions of Right Law and is refused the fiat of the Governor is without remedy”

11 Cap 149 Laws of the Federation of Nigeria and of Lagos 1958 as amended byL.N. 112/1964

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“All claims against the Government of the Federation or

against any Ministry or Department thereof, being of the

same nature as claims which before the commencement of

the Crown Proceedings Act 1947 of the Parliament of the

United Kingdom, might in England have been preferred

against The Crown by Petition, manifestation or plea of

right may, with the consent of the Attorney-General of

The Federation, be preferred in a High Court having

original jurisdiction in respect thereof, or if the

Supreme Court has such jurisdiction, in that court , in

a suit instituted by the claimant as plaintiff, against

such person as the said Attorney-General may designate

as defendant for that purpose”

Section 9 of the Act, in making the law applicable to the

constituent units of the Federation, states that:

“This ordinance shall apply to the Government of a

Region and to a Department of such Government, in such

manner as it applies to the Government of the

Federation”.

Thus it was not only to the Federal Government that the

provision affected but also the other levels of government in

the nation. Subsequently the other regions enacted their own

Petitions of Right Laws.12

12 See for example the Petitions of Right Law Cap 90 Laws of the Western Region of Nigeria 1959

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In the case of Chief Aminu Are v Attorney-General Western Region13, the

petitioner claimed from the Government of the Western Region a

sum of money for compensation for land acquired by the

government some twenty years earlier. The law in operation

then,14 provided that disputes as to compensation shall be

settled by the High Court. A later amendment to that law15

provides that no such claim, interest, right or compensation

made after 12 months from the date of the publication of the

notice shall be entertained by the court. The trial court held

that the new amendment affects the petition retrospectively;

but on appeal, the Federal Supreme Court, per Abbott FJ held

that since the petition had been endorsed with the Governor’s

fiat earlier, the new amendment cannot apply retrospectively.

The appeal was allowed and the case was remitted to the High

Court to be heard on its merit.

The interpretation of the provisions of the Petitions of Right

Act was made clearer in the case of Melville K. Roberts v. Alhaji Sule

Katagum & Ors16 where the plaintiff, a Senior Police Officer was

removed from service on allegation of corruption by the Police

Service Commission. He brought the action at the Lagos High

Court seeking a declaration that his removal from service was

illegal, ultra vires and of no effect. Counsel for the defendants

applied to have the action dismissed on the ground that it was

not maintainable. The application failed at both the High

Court and the Supreme Court. His contention was that the13 (1960) W.N.L.R. 10814 Public Lands Acquisition Ordinance Cap 18515 Public Lands Acquisition Amendment Law 195816 (1968) Nigeria Lawyers Quarterly Vol. 3, Nos. 1&3, p.113

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Police Service Commission was an arm of the State though it

was not a department of a ministry or a ministry, that it was

covered by Section 3 of the Petitions of Right Act and that

this action was in fact one brought against the Government.

The court found that the defendant Commission is not the

Government of the Federation, a Ministry, nor is it a

department of a Ministry. The action was therefore properly

brought.17

However, a case where substantial injustice (to my own mind)

was done in observance of the Petitions of Right Act and in

compliance with the doctrine of Sovereign immunity was Chief Dr.

(Mrs) Olufunmilayo Ransome-Kuti & 3 Ors v. The Attorney-General of the Federation

& 8 Ors18. The Plaintiffs/Appellants brought an action in the

High Court of Lagos against the A-G of the Federation, the

Chief of Army Staff, the Permanent Secretary, Ministry of

Defence and some others jointly and severally claiming the sum

of N25,000,000.00 (Twenty-five million naira) being damages

suffered by the plaintiffs, when the defendants by their

servants and or agents wilfully and maliciously set fire to

the plaintiffs’ 2 storey building house and bungalow and

appurtenances together with other plaintiffs’ personal

effects, valuable properties, cash, professional and or

business equipment; including motor vehicles and buses, all of

which were totally destroyed by the said fire set to them by

17 See also D. O. Aihe & P. A. Oluyede: Cases and Materials on Constitutional Law in Nigeria (Oxford University Press 1979) p. 213 18 (1985) 2 NWLR (Part 6) 211

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the defendants. They also claimed for assault and battery

suffered by the plaintiffs.

The trial court dismissed the plaintiffs’ claim and the Court

of Appeal did not differ. The Supreme Court in dismissing the

appeal held that the plaintiffs claim as seen from their

pleadings was one in tort and tortious actions could not lie

against the state in this instance. In the words of Eso JSC:

‘What is left is in regard to the vicarious liability of

the Government, but the appellants have been met by that

old and almost anachronistic legal phraseology that the

King can do no wrong. The State (the King in England)

has immunity at common law against being sued…I have

checked all our Constitutions prior to 1979 and

regrettably I am not able to find any provision which

one could apply, even remotely but rightly in an

annulment of this doctrine…As it is, the appeal must

fail and it is hereby dismissed’

THE PRESENT POSITION

By the provisions of the 1999 Constitution, a citizen no

longer needed to petition the state before he could bring an

action for redress where his rights are infringed by the state

or its agents. This has been the position of the law since

Nigeria returned to civilian rule under the 1979 Constitution.

The relevant provisions of the 1999 Constitution are Sections

6, 17, 36 and 46. The sections provide that:

Section 6

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(1) The judicial powers of the Federation shall be vested in

the Courts to which this section relates, being courts

established for the Federation

(2) The judicial powers of a State shall be vested in the

courts to which this section relates being courts

established, subject as provided by this Constitution,

for a State.

(3) The courts to which this section relates, established by

this Constitution for the Federation and for the States,

specified in subsection 5 (a) to (i) of this section

shall be the only superior courts of record in Nigeria;

and save as otherwise prescribed by the National Assembly

or by the House of Assembly of a State, each court shall

have all the powers of a superior court of record.

(6) The judicial powers vested in accordance with the

foregoing provisions of this section –

(a) shall extend, notwithstanding anything to the contrary

in this Constitution, to all inherent powers and sanction

of a court of law;

(b) shall extend to all matters between persons, or between

government or authority and to any person in Nigeria, and

to all actions and proceedings in relation thereto, for

the determination of any question as to the civil rights

and obligations of that person;

Section 17

(1) The State social order is founded on ideals of

Freedom, Equality and Justice.

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(2) In furtherance of the social order –

(a) every citizen shall have equality of rights,

obligations and opportunities before the law;

(e) the independence, impartiality and integrity of courts

of law, and easy accessibility thereto shall be secured

and maintained.

Section 36

(1) In the determination of his civil rights and

obligations, including any question or determination by

or against any government or authority, a person shall be

entitled to a fair hearing within a reasonable time by a

court or other tribunal established by law and

constituted in such manner as to secure its independence

and impartiality

(2) Without prejudice to the foregoing provisions of this

section, a law shall not be invalidated by reason only

that it confers on any government or authority power to

determine questions arising in the administration of a

law that affects or may affect the civil rights and

obligations of any person if such law –

(a) provides for an opportunity for the person whose right

and obligations may be affected to make representations

to the administering authority before that authority

makes the decision affecting that person; and

(b) contains no provision making the determination of the

administering authority final and conclusive.

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Section 46

(1) Any person who alleges that any of the provisions of

this Chapter has been, is being or is likely to be

contravened in any State in relation to him may apply to

a High Court in that State for redress.

(2) Subject to the provisions of this Constitution, a High

Court shall have original jurisdiction to hear and

determine any application made to it in pursuance of the

provisions of this section and may make such orders,

issue such writs and give such directions as it may

consider appropriate for the purpose of enforcing or

securing the enforcement within that State of any right

to which the person who makes the application may be

entitled under this Chapter.

Thus the citizens have freedom to go before the courts to sue

the State and no need arises to secure the consent of the

Attorney-General or any other person for that matter and the

courts are likewise empowered to administer justice freely.

Thus, the ghost of the Petitions of Right Act has been laid to

rest.19

As Obaseki JSC put it in Attorney-General of Bendel State v. Attorney-

General of the Federation & Ors20

“The restrictive rule of locus standi developed in other

jurisdictions cannot, in my view, operate against the19 See the cases of Governor of Lagos State v. Ojukwu (1986) 1 N. W. L. R. (Pt 18) p 621; Obeya Memorial Hospital v. Attorney-General of the Federation (1987) 3 N. W. L. R. (Part 60) p 325; A-G of Bendel State v. Aideyan (1989) 4 N. W. L . R (Part 118) p 646 20 (1981) All N. L. R. 85

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constitutional duty of Bendel State Attorney-General of

bringing to the notice of the court the

unconstitutionality of the Allocation of Revenue

(Federation Account, etc.) Act 1981. The Constitution has

opened the gates to the courts by its provisions and there can be no

justifiable reasons for closing the gates against those who do not want to be

governed by a law enacted NOT in accordance with the provisions of the

Constitution” (italics mine)

An instructive case in this regard is the case of Government of

Imo State of Nigeria v. Greeco Construction & Engineering Associates Ltd.21 where

the respondent company sued the appellant State Government for

the balance of a sum of money due in respect of a contract

agreement. Upon receipt of the statement of claim, the

appellants applied that the claim be struck out on the ground

inter alia that the action should have been by Petition of Right

and not by issuing a Writ of Summons. The Court of Appeal per

Olatawura JCA, in agreeing with the lower court’s rejection of

the submission and dismissal of the appeal, held that the

provision of the law mandating the plaintiff/respondent to

secure the fiat of the Government, before bringing the action,

contradicted the provision of Section 6 (6) (b) of the 1979

constitution which provides that:

“The judicial powers vested in accordance with the

foregoing provisions of this section –

(b) Shall extend to all matters between persons, or

between government or authority and any person in

Nigeria, and to all actions and proceedings relating21 (Unreported) Suit No. CA/E/90/84 of 2nd May, 1985

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thereto, for the determination of any question as to the

civil rights and obligations of that person”

The importance of the provision was well appreciated by Eso

JSC in the above mentioned case of Ransome Kuti & Ors v. The Attorney-

General of the Federation and Others22 even though the court rightly

held that it did not apply to the case, the event having

occurred before the coming into force of the 1979

constitution. In his words: ‘happily for the country… Section

6 of the 1979 Constitution which vests the judicial powers of

the country in the court has to my mind removed this

anachronism’.

One area where the Nigerian citizen has freely exercised this

right to come before the courts is in the area of enforcement

of fundamental human rights. Thus in the case of Darman Shugaba

v. Minister of Internal Affairs & Ors23 the plaintiff brought an

application to enforce his fundamental human rights against

his deportation by the Federal Government from Nigeria. The

court held in his favour and ruled that once a person

establishes his citizenship in Nigeria, he cannot be deported.

(He accepted that his father was a Chadian but proved that his

mother of the Kanuri tribe.) The court granted an injunction

restraining the Government from interfering with the applicant

and further awarded the sum of N50,000.00 (fifty thousand

naira) as damages for the unlawful deportation of the

applicant.

22 (1985) 2 N. W. L. R. 21123 (1981) 2 N. C. L. R. 459

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LIABILITY OF PUBLIC OFFICERS

The President, Vice President, Governors and Deputy-GovernorsAs with the 1979 Constitution24, the 1999 Constitution makes

provision to prevent lawsuits against certain public office

holders. By Section 308, immunity from legal action in

personal capacity is provided for the President, the Vice

President, the Governor and the Deputy-Governor of each state

respectively.

The Constitution provides thus:

Section 308

(1) Notwithstanding anything to the contrary in this

Constitution, but subject to subsection (2) of this

section:

(a) no civil or criminal proceedings shall be

instituted or continued against a person to whom this

section applies during his period of office;

(b) a person to whom this section applies shall not be

arrested or imprisoned during that period either in

pursuance of the process of any court or otherwise; and

(c) no process of any court requiring or compelling the

appearance of a person to whom this section applies,

shall be applied for or issued:

provided that in ascertaining whether any period of

limitation has expired for the purpose of any proceedings

against a person to whom this section applies, no account

shall be taken of his period of office 24 See Section 267 of the 1979 Constitution

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(2) The provisions of subsection (1) of this section

shall not apply to civil proceedings against a person to

whom this section applies in his official capacity or to

civil or criminal proceedings in which such a person is

only a nominal party

(3) This section applies to a person holding the office

of President or Vice-president, Governor or Deputy-

Governor; and the reference in this section to “period of

office” is a reference to the period during which the

person holding such office is required to perform the

functions of such office.

These Constitutional provisions have made it practically

impossible to contemplate bringing any action against the

foregoing office holders. If any action was pending before any

of them got into office, it is either the matter is settled

out of court, discontinued or adjourned indefinitely.

It is worth noting however that this immunity precedes the

1979 Constitution. In the case of Ebun Omoregie v. Col Samuel O.

Ogbemudia25 where the plaintiff instituted an action against

the defendant, a military governor, in his private capacity,

the court in holding that it had no jurisdiction to hear the

case said:

“The Provisions of Section 161(1) (c) and (2) of the

Constitution (1963) makes it obligatory that no

proceedings in which relief is claimed against the

governor of any State in the federation in his personal25 (1973) 3 U. I. L. R. 115

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capacity shall be instituted or continued in any court

during his period of office.” Per Begho CJ

However, as general as this blanket may be, there are some

exceptions:

(a) They may be sued in their official capacity

(b) They may be sued as a nominal party in an action

(c) They may be impeached (in case of the President or

the Vice-President by the National Assembly and in cases

of the Governors or the deputies, by the State House of

Assembly)

(d) They may be sued in an Election Petition26

Some writers have expressed the opinion that these public

office holders who are immune from legal action in their

private capacities are not barred from instituting action

against other persons27. This reasoning was also given judicial

backing in the case of Bisi Onabanjo v. Concord Press of Nigeria Ltd.28 In

that case, the plaintiff, then Governor of Ogun State of

Nigeria, sued the defendant publisher of the Concord

Newspapers claiming damages for libel. Upon the defendant’s

objections to the jurisdiction of the court on the ground that

since the Governor cannot be sued in his private capacity29, it

will be unconstitutional and inequitable for him to sue other

persons; the court held that the plaintiff can sue in his

private or personal capacity. The court noted that the26 See generally Ese Malemi Cases and Materials on Administrative Law27 ibid28 (1981) 2 N. C. L. R 39929 See Section 267 of the 1979 Constitution

17

Constitution is silent as to whether or not a Governor can sue

in his private capacity, but that it is not the duty of the

court to fill in any gaps in the Constitution. Since he is not

expressly prohibited, he can sue. The same line of reasoning

was adopted in the case of Aper Aku v. Plateau Publishing Co. Ltd.30

It is my view, that though the Constitution does not expressly

bar them from suing others, it will be grossly inequitable to

allow them sue others while they remain protected. In any

case, should any of them decide to bring an action in their

private capacities and the other party counterclaims and

requires the President or Governor as the case may be to step

into the witness box for cross-examination, what happens? Yet

the provisions of the Constitution are to the effect that “no

process of any court requiring or compelling the appearance of

a person to whom this section applies, shall be applied for or

issued.” Suppose the defendant/counterclaimant succeeds, what

happens to the judgement of the court? Will there be no

execution? Or where the ‘person to whom this section applies’

files an action and commits a contempt in the face of the

court, what does the judge do? Yet there must be equality

before the law. I suppose the dignity of statehood that

shields them from lawsuits, also require them foregoing their

rights to institute actions while they are in office. Sadly,

the 1999 Constitution failed to address this critical issue.

30 (1985) 6 N. C. L. R. 338

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Other Categories of Public OfficersWith respect to other public officers, the Public Officers

Protection Act has always afforded some protection for public

officers. In the words of Iguh JSC in Aliyu Ibrahim v. Judicial Service

Committee of Kaduna State31

“It can therefore be said that Section 2(a) of the

Public Officers (Protection) Law, 1963 gives full

protection or cover to all public officers or persons

engaged in the execution of public duties who at all

material times acted within the confines of their public

duty. Once they step outside the bound of their public

authority and are acting outside the colour of their

office or employment or outside their statutory or

constitutional duty, they automatically loose protection

of that law”

But they may be sued in their private capacity if their

actions do not have any justification or it is performed

outside the scope of duty. The protection afforded them was

done by limiting the period within which action could be

brought against a public officer to three months from the time

the cause of action arose, and in cases of continuing damage

or injury, to three months after the cessation.

Section 2 of the Act provides that:

“Where any action, prosecution or other proceedings is

commenced against any person for any act done in

pursuance or execution or intended execution of any

ordinance or law or of any public duty or authority, or31 (1998) 14 N. W. L. R. 1

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in respect of any alleged neglect or default in the

execution of any such ordinance, law, duty or authority,

the following provisions shall have effect -

(a) the action, prosecution or proceeding shall not lie or

be instituted unless it is commenced within three months

next after the act, neglect or default complained of or

in case of a continuance of damage or injury, within

three months after the ceasing thereof:

Provided that if the action, prosecution or proceeding

be at the instance of any person for cause arising while

such person was a convict prisoner, it may be commenced

within three months after the discharge of such person

from prison;

(b) whenever in such action a judgement is obtained by

the defendant, it shall carry the weight to recover from

the plaintiff all the cost which the defendant has

properly incurred in defending such action;

It follows that, no matter the extent of damage suffered by

the aggrieved party, and how malicious the public officer was

in the process of committing the tort, failure to seek redress

within the 3 months limit stipulated by law makes the action

statute-barred and the public officer becomes free from any

liability for all time.

Thus, in the case of Obiefuna v. Okoye32 the plaintiff claimed the

sum of £2,000 from the defendant as damages for injury32 (1961) All N. L. R. 357

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suffered as a result of the negligent and reckless driving of

the defendant while driving a Black Maria vehicle in which

there were prisoners, sometime in May 1958. (24th May

precisely). The counsel to the defendant showed that the

defendant was a public officer and that the writ of summons

was not issued until the 31st day of March, 1959. This was

clearly more than three months since the incident occurred.

The court ruled that “…it is quite clear from the authorities

that the statutory period under the Public Officers Protection

Act begins to run from the date of the act, default or neglect

complained of, or in the case of a continuance of injury or

damage, from the date of its ceasing. In the case of personal

injuries caused by negligence, as it is here, the statutory

period runs from the date of the incident.” Though the trial

judge had feelings for the plaintiff, there was nothing he

could do as the action was statute-barred. He said: ‘In the

instant case, it is with regret that I have to come to the

conclusion that the suit must be dismissed irrespective of the

merits’. A further appeal to the Supreme Court did not yield a

different result.33

However in the case of Ekemode v. Alausa34 where the

defendant/appellant who was the Road Overseer of the Epe

District Council had caused the Plaintiff/Respondent canoe to

be broken up after removing it from the waterway. The evidence

adduced showed that the Council’s instruction did not extend

to the destruction of the canoe. The trial magistrate held

33 See (1964) N. M. L. R. 3934 (1961) All N. L. R. 135

21

that the provision of the Public Officers Protection

Ordinance, Cap 186 of 1947 did not apply to the

defendant/appellant since he is not in the class of public

officers protected by the law; and thus was asked to pay

damages in the sum of £90 for the wrongful destruction of the

canoe. On appeal, it was contended that the action should have

been dismissed under the public Officers Protection ordinance

because it was not begun within 3 months of the defendant’s

wrongful act.

The court held that the defendant was not entitled to the

protection of the law not because of the level of his

employment but because the deliberate breaking up of the canoe

after its removal cannot be regarded as either necessary or

incidental to the duty imposed upon the defendant/appellant by

his employer for the purpose of carrying out its duties.

Statutory BodiesIt appears statutory bodies apart from those specifically

classified as Departments of Government have been suable from

time. This line of reasoning finds support in the earlier case

of Melville K Roberts v. Alh. Sule Katagum35; where the motion to dismiss

the Plaintiff’s suit, on the ground that it was not

maintainable, against the defendants was refused by the court.

(Per Taylor CJ.) The court held that the Police Service

Commission though established by statute is neither the

35 Footnote 16 above

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Government of the Federation, or a Ministry or a Department of

a Ministry.

The attitude of the court in cases like S. O. Adedeji v. Police Service

Commission36, Adeyemo v. Oyo State Public Service Commission37 and Shitta-Bey v.

The Federal Public Service Commission38 has shown that actions are well

maintainable against statutory or other constitutionally

established bodies. In the Adeyemo v. Oyo State Public Service

Commission case the plaintiff’s appointment was wrongly

terminated by the defendant without following the proper

procedure. The counsel to the defendant argued inter alia that the

plaintiff had no cause of action and that he could not

maintain the action except to come by petition of right

because a civil servant holds his appointment at the pleasure

of the state or the government. The court ruled that the

plaintiff’s action has been wrongly terminated and declared

that he be reinstated in his office.39

In the Shitta-Bey case, the plaintiff also had his appointment

terminated and the High Court ruled that the termination was

unlawful and consequentially ordered his reinstatement. The

defendant did not comply with the court order; the plaintiff

thereupon applied for an order of mandamus to compel the

defendant to comply. The High Court (per Adefarasin CJ) and

the Court of Appeal held that the principle of English law36 (1967) All N. L. R. 7237 (1972) 2 L. R. N. 26838 (1981) 12 N. S. C. C. 1939 The court cited the case of Oguche v. Kano State Public service Commission [1974] 1 NMLR 128 where the court held that the power of the State to dismiss a civil servant is fettered by Public Service Commission Regulations and thatif the regulations are breached, the civil servant who is aggrieved by the breach can sue for a declaratory judgment

23

which precludes mandamus from issuing against the Crown,

applies in this country in regard to public officers in the

established and pensionable cadre of the Federal Government

Service. The Supreme Court per Idigbe JSC held that:

“the principle of law which precludes mandamus from

issuing against the Crown has historical justification

in English legal history and, in my view, there is no

basis for its application in this country (a republic)

in respect of the respondent who, being a creature of

statute, can sue and be sued; there being no provisions

to the contrary, express or implied, in any enactment in

our statute books”

However, one way by which the liability of the public bodies

is limited is by making the provisions of the Public Officers

Protection Act applicable to them. Thus no action may lie

against any of these government bodies, institutions,

agencies, ministries or departments except the action is

brought within three months of the date the cause of action

arose. The only exception is where any other statute has

modified the position, such as by enlarging the period of

limitation.40

Thus in the case of Alhaji Aliyu Ibrahhim v. Judicial Service Committee,

Kaduna State & Anor41 the appellant challenged by suing the40 For example see Section 61(1) of the Nigerian Broadcasting Corporation Act 1957 which provides that action against the Corporation or any of its servants could be commenced within 12 months next after the act, neglect ordefault complained of or where injury is continuous, within 12 months afterthe ceasing of the act.41 (1998) 14 N. W. L. R. (Part 584) p 1

24

respondents at the High Court. The respondents filed

preliminary objection and the action was dismissed and a

further appeal did not yield a different result. The substance

of the respondents’ objection was that by virtue of provisions

of Section 2(a) of the Public Officers (Protection) Law, the

action was statute-barred as it was instituted outside the

three months period stipulated by law. The appellant replied

that the law refers to Public Officers (Protection) Law and

not Public Offices (Protection) Law. He contended that since

the defendants were not sued in their respective names but by

their designated offices, they could not benefit from the

protection afforded by the Public Officers (protection) Law,

1963.

In determining whether the word person in the law covers only

natural or artificial persons, the court referred to Section 3

of the Interpretation Law42 which states “ ‘Person’ includes

any company or association or body of persons corporate or

incorporate” and said:

“Without, therefore, seeking guidance from anywhere

else, it seems to me plain that the definition of the

word “person” in the legal sense under the Nigerian law

is not limited to the natural persons or human beings

only, as the appellant now vigorously appears to

contend. It clearly admits and includes artificial

persons such as a corporation sole, company or any body

of persons corporate or incorporate. In this regard, and

again without making reference to the decision of any42 Cap 52, Laws of Northern Nigeria, 1963

25

foreign jurisdiction, it is clear to me that it cannot

be right that the definition of any person in the Public

Officers (Protection) Law of Northern Nigeria 1963 must

be read as meaning any person in the limited sense, that

is to say as referring to natural persons or human

beings….It is thus clear to me that the term “public

officer” has by law been extended to include “public

department” and therefore, an artificial person, a

public office or a public body.”

IN CONCLUSIONIt is worth noting that the law governing the liability of the

government for the actions of its agents and officers have

come a long way. Our colonial experience dictated the larger

part of the development of our laws and the unholy incursions

of the military into the realms of governance have by no small

means hampered the overall development of the legal system.

Most public bodies and officers tend to work in the

consciousness of the legal protection they have and thus act

without regards to the rights of others which are equally

protected by the Constitution. Since the effect of limitation

statute is to remove the right of action, the right of

enforcement, and the right to judicial relief in a plaintiff,

and this leaves him with a bare and empty cause of action

which he cannot enforce; it follows that no litigant whose

rights have been violated either in tort or in contract by the

26

government or any of its agents or servants should waste time

before bringing action.

Action should be filed immediately in the appropriate court.

Even in cases where there are moves to settle, such moves

should not operate as to bar out redress for an aggrieved

party. This was the reasoning of the court in the case of

Nigerian Customs Service & Anor v. Sunday Bazuaye43 where the court said

“it is settled law that in considering whether an action is

statute-barred, negotiation within parties will not stop the

time from running, yet where there has been an admission of

liability during negotiation and all that remains is

fulfilment of the agreement, it cannot be just and equitable

that the action would be barred after the statutory period of

limitation giving rise to the action, if the defendant is to

resile from agreement during the negotiation”.

The government exist to maintain the society. Life at any

level must not be allowed to degenerate to levels where people

who are servants of the government themselves use the

instrumentality of the government or any of the machinery

apparatus to oppress other citizens of the country. This is a

republic and not a kingdom, and as Oputa JSC said

“I will hasten to add that it will be contradictory in

terms for a citizen of a republic such as Nigeria to

hold his office at the pleasure of the Crown. Which

Crown? We have no Crown here…”44

43 (2001) 7 N. W. L. R . (Part 712) 357

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44 Olaniyan & Ors v. University of Lagos & Anor (1985) 2 N. W. L. R. (Pt 9) p 599

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