Bakari v. Ogundipe: On whether section 2 of the Public Officers (Protection) Act is applicable to land matter. An insight into the decision of the Supreme Court therein. Citation: (2021) 5 NWLR PT. 1768 AT 1.

Courtesy: Moruff O. Balogun Esq

PARTIES IN FULL:
HAJIA YINUSA BAKARI
V.
DECONESS (MRS.) FELICIA OGUNDIPE
THE MINISTER, FEDERAL CAPITAL TERRITORY
FEDERAL CAPITAL DEVELOPMENT AUTHORITY
ATTORNEY GENERAL OF THE FEDERATION

Summary of Fact:
The 1st respondent served in the Federal Civil Service for thirty-five years. She ended her career as a Federal Civil Servant as the Director of Library Services of the Supreme Court. She retired after thirty-five 35 years unblemished service in the Federal Civil Service. While in service in the Supreme Court, she was allocated a 3 bedroom duplex at Block D44, Flat 3, Zone F Extension, Apo Abuja, as her official quarters. She lived in the property thereafter.

Sometime in 2003, the Federal Government commenced a monetization policy of fringe benefits in the Civil Service. The thrust of the policy, among other things, was the sale of Federal Government Houses (i.e. residential houses), etc. By the policy, the 1st respondent was entitled to be given the right of first refusal since she had been living in the house for over five years.
The 1st respondent was interested in acquiring the house and she wrote a letter to the Head of Service of the Federation, through the Chief Registrar of the Supreme Court, wherein she indicated her interest to purchase the house in line With the monetization policy which took effect from 1st October 2003.
The process for purchasing houses took a different turn when the Federal Government transferred the purchase of houses to the 2nd and 3rd respondents. The 2nd and 3rd respondents proceeded to issue sales guidelines and requested the 1st respondent to fill and submit a form for the expression of interest to purchase the said house. The 1st respondent completed and submitted the form.

Thereafter, the 2nd respondent rejected the 1st respondent’s application on the ground that she was not qualified to apply as a career civil servant since she retired on 15 January 2004. The 1st respondent protested to the 2nd respondent. Sometime, in 2005, the 2nd respondent invited the 1st respondent to participate in a public bidding as a member of the general public. She participated, while still contesting the 2nd respondent’s decision to deny her the right of first refusal as a career civil servant.
While awaiting the results of the public bid, the 1st respondent travelled to England for urgent medical attention. It was while she was recuperating in England that the 2nd respondent announced that the apartment had been won by the appellant.

On her return to Nigeria, the respondent made enquiries as to what happened to her application. She was told at the 2nd respondent’s office that her form was misplaced. The 2nd respondent realized their mistake, and to correct the error, she was given yet another form which she filled and submitted with a bank draft. She had to vacate the house when she received a quit notice sometime in 2006.
When all efforts by the 1st respondent failed to redress her plight, she filed an action in the High Court of the Federal Capital Territory. The appellant and the 2nd, 3rd and 4th respondents were the defendants.

In the action, the respondent claimed, inter alia, a declaration that she is a beneficiary of the Monetization Policy of the Federal Government of Nigeria having been in active service as at the time the policy took effect; an order directing the 2nd and 3rd respondents to give the 1st respondent the opportunity to exercise her right of first refusal in respect Block D44, Flat 3, Zone D Extension Apo Legislative Quarters, Abuja
In the alternative, the 1st respondent claimed, among others, a declaration that she was entitled to be given fair consideration in the bidding exercise carried out by the 2nd and 3rd respondents in September and November 2005, the respondent having submitted the expression of interest form in respect of Flat 3, Block D44, Zone D Extension, Apo Legislative Quarters, Abuja for the said bidding exercise; a declaration that the purported sale of flat 3 Block D44, Zone D extension Apo Legislative Quarters, Abuja to the appellant was null and void.

At the conclusion of the case, the trial court found against the 1st respondent.
Dissatisfied, the 1st respondent appealed to the Court of Appeal.
By a majority decision, the Court of Appeal allowed the appeal and granted the reliefs of the 1st respondent.

Aggrieved, the appellant appealed to the Supreme Court.
In determining the appeal, the Supreme Court considered the provisions of section 299 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and section 2(a) of the Public Officers Protection Act. They provide as follows:
Section 299 of the Constitution of the Federal Republic of Nigeria, 1999(as amended) states-
299. The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation; and accordingly –
(a) all the Legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the courts of a State shall respectively, vest in the National Assembly, the President of the Federation and in the courts which by virtue of the foregoing provisions are courts established for the Federal Capital Territory, Abuja;
(b) all the powers referred to in paragraph (a) of this section shall be exercised in accordance with the provisions of this Constitution; and
(c) the provisions of this Constitution pertaining to the matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this section.

Section 2(a) of the Public Officers Protection Act reads:-
“Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any
act or law or any public duty or default in the 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 of such act, 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.
Held: Unanimously dismissing the appeal.
The following issues were raised and determined by the Supreme Court.
On Whether section 2 of the Public Officers (Protection) Act is applicable to land matter-
The provisions of section 2 of the Public Officers (Protection) Act does not apply to cases of recovery of land. In the instant case, the action was for recovery of land/house occupied by the 1st respondent from which she was thrown out. She wanted her house back and for her house to be given to her in accordance with the monetization policy. In that wise, the suit was not statute barred, since section 2 of the Public Officers (Protection) Act was not applicable to it.

On How processes filed in court are to be signed-
Court processes filed in court are to be signed in the following manner:
(a) signature of counsel, which may be any contraption.
(b) name of counsel clearly written
(c) who counsel represents, and;
(d) name and address of legal firm.
In the instant case, it was clear from the facts that the statement of claim was signed, but there was no name of counsel. So the process was irregular.

On Nature and types of jurisdiction and whether jurisdiction may be waived-
Jurisdiction is a question of law. There are two types of jurisdiction, viz:
(a) Jurisdiction as a matter of procedural law; and
(b) Jurisdiction as a matter of substantive law.
A litigant may waive procedural law jurisdiction.

On Status of Minister of the Federal Capital Territory-
The Minister of the Federal Capital Territory, though a Minister of the Federal Government occupies a similar position of Governor of a State, since Abuja is classified as a State by section 299 of the Constitution. The Minister of the Federal Capital Territory is thus the Chief Executive of the Federal Capital Territory, Abuja.

On Status of the Federal Capital Development Authority-
The Federal Capital Development Authority is established by section 3 of the Federal Capital Territory Act. It is a Governmental Agency of the Federal Territory, Abuja.

On Meaning and consequences of waiver –
Waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile, and complain of what he has waived. In other words, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. It is only when objection is made at the earliest opportunity can it be said that the right was not waived. In the instant case, after the writ of summons and statement of claim filed by the 1st respondent were served on the appellant, he did not raise any objection to the defect in the statement of claim at the trial court. Instead, he filed a statement of defence and participated in trial and judgment was delivered in his favour. Not objecting to the Signature on the statement of claim amounted to waiver.

Per RHODES-VIVOUR, J.S.C.:
The appellant accepted the statement of claim as if it was very much in order. He participated in the proceedings, filed a statement of defence and called evidence. Judgment of the trial court was given dismissing the 1st respondent’s claim. The appellant was happy. He did not complain. The 1st respondent/plaintiff filed an appeal. On appeal the appellant defended the judgment and never made the defective statement of claim an issue.
When the appellant lost in the Court of Appeal he appealed to the Supreme Court, and made the issue of the competence of the statement of claim an issue for the first time. It is clear he waived his right to object to the defective process. The right of the appellant to object to the defective statement of claim is a waivable right, being procedural jurisdiction. A private right.
It would be most inequitable and unjust to the, 1st respondent/plaintiff for the appellant after waiving his right to complain about the plaintiff’s incompetent process, to be allowed to complain on appeal. Waiver is inferred or implied after examining the conduct of the appellant.
No court would allow the appellant to renege from his acquiescence.”

On Right of party to make alternative claim and power of court to consider and grant same-
When a party makes claims in the alternative, he is saying that he wants either of his reliefs. So any of the claims granted suffices for the purpose of satisfying the claim. When a court grants the main claim, the alternative claim would no longer be considered.
When the main claim fails the alternative claim must be considered, and if found proved the court should grant it.

On Whether court can grant relief not claimed-
A court has no jurisdiction to grant a relief not claimed or more than the claimant can prove, but can grant less than is claimed.

On Power of court to give consequential orders-
A court has jurisdiction to give consequential orders where necessary. In this case, the order by the Court of Appeal that the 1st respondent pay the bid amount and other legal charges arose from the fact that the 1st respondent won the bid. The natural sequence is for her to pay up. Hence the order by the Court of Appeal, the consequential order was therefore correct.

On Meaning of consequential order-
A consequential order is an order which gives effect to the judgment. It must flow from the judgment.

On When and how defective statement of claim may be challenged-
Where the statement of claim is being attacked, the application may be made before the defence is served. In other words, the objection must be made timeously before the defence is served; otherwise, the objection is deemed to have been waived or compromised.
Per EKO, J.S.C.:
“All the defendants, including the appellant, at pages 245-249 and 262-265 of the record filed their respective statements of defence wherein they joined issues on the substance of the dispute with the plaintiff/l respondent. Evidence at the trial was called on the pleadings. The trial court delivered judgment on the evidence based on the pleadings. The appellant finding no cause to challenge the statement of claim remained mute both at the trial court and the lower court. He has clearly waived his right of objection to the irregular process. As I stated in Heritage Bank Ltd. v. Benworth Finance (Nig) Ltd, – SC.175/2015 (2018) 9 NWLR (Pt.1625) 420; the appellant having waived his right of objection cannot now be heard to, belatedly, raise the objection at the apex court. Equity helps the vigilant and not the indolent. Delay, I repeat, defeats equity.
It is now unconscionable to allow the appellant succeed on this issue; the appellant having slept too long on his right to timeously object to the irregular statement of claim. Doing so, now, will be pandering to undue technicality at the expense of substantial justice; which in turn will inflict grave injustice to the plaintiff/1st respondent. This is a court of justice. It does justice evenly to the parties before it, and will not allow a party dole out injustice to the other:

On Doctrine of estoppel by conduct-
By virtue of section 169 of the Evidence Act, 2011, when one person has, either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing. In the instant case, the point of the statement of claim being defective, for been settled by an unknown proxy of Chief A. S. Awomolo, SAN, was raised for the first time at the Supreme Court. The appellant, on this issue, was caught by the doctrine of estoppel by conduct. It would be inequitable and unjust to the plaintiff/1st respondent for the Supreme Court to accede to the belated objection; the appellant having waived his right of timeous object to the irregular statement of claim. Delay defeats equity.

On Limitation of action against public officers and exceptions thereto-
By virtue of section 2(a) of the Public Officers Protection Act, where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any act or law or any public duty or default in the 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 of such act, law, duty or authority, 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. However, this principle does not affect transactions of recovery of premises, title to land, and breach of contract, which are exceptions to the operation of the Public Officers Protection Act, when the officers operate within their administrative competence. Therefore, the proposition for the action to be statute barred with the attendant ousting of the jurisdiction of the court will not apply in such instances.
On Role of respondent in an appeal-
A respondent’s role in an appeal is to defend the judgment on appeal, and not attack it. If a respondent is not satisfied with the judgment on appeal he should file a cross-appeal or respondent’s notice. He cannot file both cross-appeal and a respondents’ notice because they cannot co-exist. In the instant case, rather than defend the judgment of the Court of Appeal, the 2nd and 3rd respondents filed a joint brief attacking the judgment. In their conclusion, they prayed the Supreme Court to set aside the judgment of the Court of Appeal and in its place restore the judgment of the trial court dismissing the claims of the 1st respondent. Their role was fundamentally wrong. Their prayer ought to be for the court to dismiss the appeal. Since the 2nd and 3rd respondents abandoned their role as respondents, their joint brief could not be considered. It was thereby struck out.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414