By Ogbom Goodluck Ogbom, Esq

The first Public Officers Protection Act applicable to Nigeria was enacted in 1916 to replace the received English law the Public Authorities Protection Act of 1893 which is a statute of general application. The Public Officers Protection Act (just like many other Ordinances in force at the time) has survived over 50 years of independence and was wholesomely imported to the civilian democratic setting vide the provisions of Section 315 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The Public Officers’ Protection Act does not define who a public officer is. However, the Interpretation Act, Cap 123 LFN 2004, defines “a public office holder as an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.

In Asogwa v Chukwu (2003) 4 NWLR (pt. 811) 540 at 551 per Aboki JCA (CA), the Court defined a Public Officer thus:- “The term Public Officer referred to in the interpretation Act, can only be described to be referred to those enjoying employments with statutory flavour as reflected in section 318 (1) of the 1999 Constitution”. Again, in Chief John Eze v Dr. Cosmas I. Okechukwu4 (1998) 5 NWLR (pt. 548) 43 at 73, the Court opined that a “public officer, in my view is a holder of a public office. He is in the public sector of the economy as distinct and separate from the private sector. He is entitled to some remuneration from the public revenue or treasury. He has some authority conferred on him by law. He also has a fixed tenure of office that must have some permanency or continuity. Above all, a public officer has the power to exercise some amount of sovereign authority or function of government. The Sovereign authority may be great or enormous. It may be little or small. There should be that element of sovereign authority.

In the case of University of Jos v Ikegwuoh, (2013) 9 NWLR (Pt. 1360) 478 it was held that ‘any person’ used in section 2 of the Act, is not limited only to natural persons or human beings or persons sued in their natural names, but includes artificial persons, public bodies or body of persons, whether sued by their official titles or not.

Clearly, the intendment of the Act as expressed in the long title to protect “public officers” can arguably be said to have been extended by the literal interpretation approach of the courts that has now resulted in the extension of the meaning of a public officer to public offices and public institutions by the courts. The Supreme Court has made it clear that there is no distinction between public offices and public officers under the Public Officer (Protection) Act. Thus, an individual or artificial person with the responsibility of performing the duties and functions of an office established by law is a public officer.

With the definition and the extension given in the interpretation of who a public officer is, it is also important to state that the Public Officer Protection Act is intended, within the limits of the law, to protect a public officer from detraction and unnecessary litigation but not to deprive a party of opportunity to ventilate his grievance in the face of stark injustice and breach of authority or duty.

Section 2(a) of the Public Officers’ Protection Act provides as follows:

“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 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, 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 next after the ceasing thereof.”

By virtue of the provisions above, it is settled law that, an action against a public officer for an act done pursuant to any public duty must be commenced within three (3) months following the act complained of. The limitation of time imposed by the Act is the crux of the protection.

In the case of HASSAN v. ALIYU & ORS, (2010) LPELR 1357 (SC) Per ADEKEYE, J.S.C (p. 84, paras. B-D). The Supreme Court held as follows:

“The two conditions which must exist before a person can avail himself of the protection provided by Section 2 of the Public Officers Protection Act are:

(1) The person must be a public officer.

The act done by the person in respect of which the action was commenced was an act done in pursuance or execution or intended execution of a law or public duty or authority.”
It is important to state that a public officer can be sued outside the limitation period, if he was acting outside the scope of his office. In Attorney-General of Rivers State v Attorney-General of Bayelsa State & Anor,11it was stated that;

By Section 2(a) of the Public Officer Protection Act, the Law gives generous 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 authority, and are not acting outside their statutory or constitutional duty. Thus, a Public Officer can be sued outside the limitation period of three months if, at all times material to the commission of the act complained of, he was acting outside the colour or scope of his office or outside his statutory or constitutional duty. Where a Public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act.

The Apex Court in a number of cases has expounded and propounded a number of exceptions to the protection provided for “public offices” and “public officers” under the Public Officer (Protection) Law. The latest case is that of Attorney-General of Rivers

State v Attorney-General of Bayelsa State & Anor (2013) 3 NWLR (Pt.1340) 123 at pages 148-149,paras.H-A:

The case was a case of boundary dispute between Rivers State (the Plaintiff) and Bayelsa State (the 1st Defendant). The Honourable Attorney-General of Rivers State commenced an action on behalf of the Government of Rivers State, pursuant to the original jurisdiction conferred on the Supreme Court by Section 232 (1) of the 1999 Constitution, against the Attorney-General of Bayelsa State and the Attorney-General of the Federation. The Supreme Court did not grant the reliefs sought by the Plaintiff on the ground that it does not feel comfortable to do so, due to the conflicting maps tendered in evidence before it. It however took the opportunity to review exceptions to the Public Officers Protection Act. The following are some of the exceptions:

Continuance of Damage or Injury
Where the person relying on it acted outside the colour of his office or
outside his Statutory or Constitutional duty

Cases of recovery of land
Breaches of contract
Claims for work and labour done
Good faith
(a) Continuance of Damage or Injury

As it concerns continuance of damage or injury, the Public Officer (Protection) Law permits

actions to be brought on the cessation thereof outside three months. This is the position of the law as expounded by Galadima, J.S.C, in the Lead Judgment in Attorney-General of Rivers State v Attorney-General of Bayelsa State & Anor.

Where the person relying on it acted outside the colour of his office or outside his Statutory or Constitutional duty. In Attorney-General of Rivers State v Attorney-General of Bayelsa State & Anor16 puts it thus:(supra)
“The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his Statutory or Constitutional duty as claimed by the Plaintiff in this suit.

Cases of recovery of land.
In Attorney-General of Rivers State v Attorney- General of Bayelsa State & Anor. The court held this:

Again, the Plaintiff argues that the protection afforded Public Officers under the Act does not apply in cases of recovery of land. I have noted however, that the Plaintiff’s action is related to recovery of land. The claim, particularly, of Oil wells fields are in issue, as well as the revenue therefrom. In view of the foregoing and for the fact that the Plaintiff is mostly seeking for declaratory reliefs having to do with the claim of entitlement to derivative funds from the disputed Oil fields, which have fallen due and which they complained have not been paid, the Act cannot be invoked to defeat the grant of such reliefs.

. Breaches of contract.
In Bureau of Public Enterprises v Reinsurance Acquisition Group Ltd & Ors(2008) LPELR-CA/A/195/M/05, Mary U. Peter-Odili, J.C.A. (as she then was ), the Court of Appeal in its lead judgment relied on the dictum of Mohammed JSC in FGN v Zebra Energy Ltd.(2002) 18 NWLR (pt.798) 162 at 196 and pronounced that: “The provisions of the Public Officers Protection Law are not absolute. The provisions do not apply in actions for recovery of land, breaches of contract, claims for work and labour done.” The Public Officers Protection Act was not intended by the Legislature to apply to contract. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done.

e) Claims for work and labour done.
The provisions of the Public Officers Protection Law does not apply not only to cases of recovery of land, breaches of contract but also for claims for work and labour done. See Osun State Government v Dalami Nigeria Limited (Suit No: SC. 277/2002)

Good faith.
The protection under Public Officers Protection Law is only available to a public officer who acted in good faith in the execution of his public duty. See Inspector General of Police v Olatunji 21 NLR 52.

In the case of SALAHUDEEN & ORS v. AJIBOLA & ORS,(2019) LPELR 47412 (CA) Per BARKA, J.C.A (pp. 37-38, paras. D-C).

the Court of Appeal held as follows:

“The fulcrum of the appellant’s contention is straightforward. It is whether there are exceptions to the application of the Public officers Protection Act with regards to knowledge. My simple answer is to agree with the lower Court, having held that: “I therefore agree with the submission of counsel for the respondent that the cause of action in this case had not accrued until they became aware of the appointment of the 1st defendant/applicant as Onigbin of Oke-Onigbin which was alleged not to be published equally there was an allegation of fraud, concealment, deceit and connivance pleaded in this case.” The case of A.G Rivers State vs. A. G Bayelsa State & Anor (2012) LPELR – 9336 (SC) gives some of the exceptions to the Act. See also Hassan vs. Borno State Govt. (2016) LPELR – 40250 (CA), Hon Minister of the FCT vs. J. Alucon Ltd (2017) LPELR – 42870(CA)”

Flowing from the decision in Ajibola (supra), the court has made it clear that the limitation period under the POPA will not apply where there is fraudulent concealment, collusion or deceit on the part of the defendant.

Having clearly evaluated the principles, scope, exceptions and limitations of POPA, it is germane to state whether or not It has general application such as to apply or offer protection to public officers in the service of States in the Federal Republic of Nigeria.

It is without doubt, that the protection offered or covered by the Act is only available to public officers as defined by the court in the service of the federal government of Nigeria. The notion or impression by some that every public officer in the service of states in the federal republic of Nigeria, is covered by the Act without domestication has been addressed by the Supreme Court in the case of CIL RISK & ASSET MANAGEMENT LTD v. EKITI STATE GOVT & ORS 7 (2020) LPELR 49565 (SC)., decided on the 13th day of March 2020. Where the Appellant being aggrieved approached the Ekiti State High court for redress. The 1st – 3rd Defendants as well as the 4th Defendant, without filing a defence to the action, filed separate notices of preliminary objection to the suit on the grounds that the failure of the Plaintiff to institute its action within three (3) months as provided for under the Public Officers’ Protection Act has rendered same statute-barred and unenforceable. The trial High Court upheld the preliminary objections and that decision was affirmed by the Court of Appeal. On further appeal to the Supreme Court, the decisions of two lower courts were set aside, and the matter was restored to the cause list of the Ekiti state High Court for retrial before a different Judge.

The Supreme Court based its decision on the fact that Public Officers Protection Act does not cover “public officers” in the employ of state governments. Ejembi-Eko JSC, held as follows:

“The Respondents appear to me to have taken shelter under Section 2 (a) of the Public Officers Protection Act, Cap P41, 2004 LFN (updated up to the 31st day of December, 2010). This Act enacted pursuant to Item 53 of the Exclusive Legislative List and Section 4(2) & (3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, applies only to protect public officers in the “public service of the Federation”. It has no general application such as to apply or offer protection to public officers in the service of Ekiti State or any other State in the Federal Republic of Nigeria. The public Service of Ekiti State is a matter within the residual list that is matter neither in the Exclusive Legislative List set out in Part l of the Second Schedule to the Constitution nor in the Concurrent Legislative List set out in the First Column of the Second Schedule to the Constitution. The public service of Ekiti State, being a residual matter, only the Ekiti State House of Assembly, by dint of Section 4(6) & (7) of the Constitution,1999, as amended, to the exclusion of the National Assembly or any other State House of Assembly, can constitutionally legislate on it. This basic Constitutional Law eluded the Respondents and the two Courts below. The resort to the Federal statute, the Public officers Protection Act, to scrounge a statutory defence for officers in Ekiti State public service is no doubt ultra vires.” EJEMBI EKO, J.S.C (pp. 5-6, paras. C-D).

The decision in CIL RISK & ASSET MANAGEMENT LTD v. EKITI STATE GOVT & ORS(supra), clearly shows that the Public Officers Protection Act does not have general application such as to apply or offer protection to public officers in the service of States in the Federal Republic of Nigeria and cannot be used to challenge action(s) brought against public officers in the service of states in the federal republic of Nigeria. Though the Supreme Court did not cite any previous judicial pronouncement of the same court in holding as he did but the decision could be said to be one which reinstates the powers of the federal government and the states government to make laws relating to public officers in the Concurrent Legislative List. Lastly, it is also important to state that the decision will be different where a state has domesticated the POPA.

Ogbom Goodluck Ogbom, Esq, is a PhD researcher.

A Partner at Law Freight Attorney.
Port Harcourt.
And can be reached via [email protected].