Public Officers Protection Act/Law cannot be Invoked to Protect Fraudulent Public Officials

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Preamble

“It is not, and cannot be the intention of the law to compensate dishonest public officers with statutory protection that defeats the essence of probity in public service. The question is, would it have been the intention of the Public Officers Protection Law to offer a shield and protect public officers found to have violated public trust? The answer again is certainly NO. Doing otherwise would amount to incentivizing dishonesty in public service by encouraging potential violators of public trust to benefit and reap the evil fruits of their dishonest behaviour at the expense of national good and public morality. This should never be allowed to happen.”

The above quote is the holding of Mi Lord Justice SIDI DAUDA BAGE, J.S.C. while delivering the leading judgment in the Supreme Court case of KWARA STATE PILGRIMS WELFARE BOARD v. BABA (2018) LPELR-43912(SC).

Facts

Baba (the respondent) was a finance clerk with the Kwara State Pilgrims Welfare Board (the Appellant) and was charged with the responsibility of assisting the Accountant to lodge monies into the Board’s bank account. On 11 April 1994, the Accountant and Baba went to the Kwara State Government House, Ilorin to retrieve the Board’s money for lodgment at the United Bank for Africa (UBA) Plc, Ilorin Branch. The monies were kept in three separate bags containing N683, 590.00; N782, 550.00 and N310, 201.00 respectively.

The Accountant left the monies with Baba to attend to urgent engagements concerning the yearly Hajj operations with the understanding that Baba would deposit the monies into the designated bank account.  Baba deposited some of the money but kept back N310, 210.00 on the excuse that the Bank had heavy transaction on that particular day. He also failed to deposit the money on the following day. It was subsequently discovered that the sum of N 125, 000. 00 was missing from the money.

When Baba failed to give any reasonable explanation as to the whereabouts of the missing money, the Board instituted a civil action in the Kwara State High Court, Ilorin for the recovery of the said N125, 000.00. At the end of the trial, Judgment was entered in favour of the Board.  Baba then appealed to the Court of Appeal against the judgment of the High Court raising the plea that the action was statute barred as the suit was not commenced within 3 months from when the cause of action arose. He contended that he was a public servant in Kwara State and so was entitled to the Public Officers Protection Law. The appeal was allowed and the judgment of the High Court was set aside.

Miffed by the judgment of the Court of Appeal, the Board filed this appeal to the Supreme Court.

Issues for Determination

The appeal was determined on this lone issue:

“(1) Whether the Respondent is a public officer entitled to statutory protection from a legal action by the Plaintiff/Appellant herein within the context of Section 2(a) of the Public Officers Protection Law of Kwara State Volume 3, Cap 135, of 1994.”

Decision

In a unanimous decision, the appeal was allowed. The Judgment of the Court of Appeal delivered on 15th December, 2004 was set aside and the decision of the trial Court dated the 2nd May, 2000 per Kawu J. (as he then was) was restored.

Ratio Decidendi 

  • LEGISLATION – PUBLIC OFFICERS (PROTECTION) ACT/LAW:Essence, scope and applicability of the Public Officers Protection Act/Law.

“The Appellant instituted an action against the Respondent at the Kwara State High Court to recover the stolen money and got judgment. The Respondent herein appealed to the Court of Appeal, Ilorin Division, and it was argued on his behalf that, the action against him was statute barred by virtue of S.2(a) of the Public Officers Protection law of Kwara State 1994 as the said action was not initiated within three months. The lower Court in its judgment upheld the argument on the ground that the Respondent being a public officer could not be sued after the expiration of three months as provided by Section 2(a) of the Public Officers Protection Law. It will appear that the lower Court did not know or appreciated the purport and the scope of Public Officers Protection Law of Kwara State. Section 2(a) of the Public Officers Protection Law of Kwara State 1994 provides as follows:

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“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance of execution or intended execution of any Law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provision 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 continuance of damage or injury, within three months next after the ceasing thereof…”
In Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 591 Paras B – D, this Court while considering the scope of Section 2(a) of the Public Officers Protection Act, 1990, which is in pari-materia with Section 2(a) or the Kwara State Public Officers protection Law 1994, said:

“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal jurisdiction, he cannot claim the protection of the provisions of the public officers Protection Act.”

The Law is settled that it is the duty of the plaintiff to adduce evidence or facts to prove that the officer acted outside the scope of his authority or without semblance of legal jurisdiction. The facts to be produced must exist to enable the Court find the absence of semblance of legal jurisdiction, otherwise once it is established that the action was instituted outside the statutory period of three months, the action is time barred and the Court will have no jurisdiction to entertain same. In the instant case sufficient evidence was led and parties are in agreement that N310,210.00 was entrusted to the Respondent and out of this amount, N125,000.00 was missing. The missing or theft of money was not within the scope of the official duty of the Respondent. In other words, the Respondent had no legal authority to retain N125,000.00 out of the money that was given to him to deposit in the bank. Having acted outside the scope of his authority, the Respondent had no right of protection under the Public Officers Protection Law of Kwara State. The lower Court was therefore wrong to have succumbed to the argument on behalf of the Respondent. The Law is very clear that the Public Officers Protection Law is used as a shield to protect public officers who act strictly within the confines of their official duties and no more.”Per GALINJE, J.S.C. (Pp. 24-27, Paras. E-D).

  • PUBLIC OFFICER – PUBLIC OFFICERS PROTECTION ACT: Whether the Public Officers Protection Act/Law can be invoked to protect fraudulent public officials.

“I now turn to answer the issue: “Whether the Respondent is a public officer entitled to statutory protection from a legal action by the Plaintiff/Appellant herein, within the context of Section 2(a) of the Public Officers Protection Law of Kwara State Volume 3, Cap 135, of 1994.”

It seems the parties are at consensus that there was a third bag containing the sum of N310,210:00 and which bag was in the custody or control of the Respondent from which he held back the sum of N125,000:00. The evidence on this issue is settled, and seemingly incontrovertible. This singular act prompted the chain of reactions from the Appellant, ranging from suspension to filing of a suit at the High Court of Kwara State. To defeat the suit, the Respondent contended that being a public officer, he is entitled to statutory protection from a legal action from the Plaintiff/Appellant herein, within the context of Section 2(a) of the Public Officers Protection Law of Kwara State Volume 3, Cap 135, of 1994.

The issue in this appeal goes beyond the three months rule of limitation of action against a Public Officer. In the context of this appeal, the lower Court would have seen a bigger picture of fraud and financial infelicities or breach of public trust on the part of the Respondent, if it had not regarded the issue of limitation of 3 months rule as the most crucial issue to be determined in the appeal. This is because, the lower Court anchored its decision on the 3 months limitation without having the benefit of much more vital issues of whether the said protection is intended to be used to defeat the ends of justice.
The error of judgment becomes more apparent looking at the last paragraph of page 138 of the Records, which contains the judgment of the lower Court. In its final remarks, the lower Court declared, and I think erroneously, that: –

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“Finally, in this appeal the resolution of the most important issue i.e. issue No. 1, is in favour of the Appellant (now Respondent) the appeal has succeeded and must therefore be allowed. It is accordingly allowed by me. The judgment of the lower Court is hereby set aside with its consequential Orders. For the avoidance of any Possible doubt, all the reliefs awarded by the lower Court are hereby set aside. Appeal allowed (emphasis added).”

The question is, would the Public Officers Protection Law have intended to protect fraudulent public officials? The answer is a capital NO. I’m in accord with Appellant that Section of the Public Officers Protection Law (supra) ought to read in consonance with the provisions of Order 04118 of Chapter 4 of Kwara State Civil Service Rules under which the Appellant and Respondent contractual relationship arose. This is because Order 04118 provides that: –

“Suspension should not be used as a synonymy for interdiction. It shall apply where a Prima facie case (the nature of which is serious) have been established against an officer and it is considered necessary in the public interest that he should forthwith be prohibited from carrying on his duties. Pending investigation into the misconduct, the State Public Service Commission or the Head of Department (if within his delegated powers) shall forthwith suspend him from the exercise of the powers and functions of his office and from the enjoyment of his salary.”

The veil of any protection of the Respondent under the Public Officers Protection Law is lifted, removed, suspended or is kept in abeyance once he has been suspended from functioning or exercising the duties of a Public officer. Thus, by virtue of the provisions of the Order, any staff suspended for any misconduct like in this instance, is prohibited from carrying on his duties as a Public officer and shall cease to exercise the powers and functions of his office as a Civil Servant. This is the clear and unambiguous provision of the order and ought to be given its fullest effect to avoid defeating the objective of probity in public service. See KOTOYE VS. SARAKI (1994) 7 NWLR (Pt. 357) 414 at 460 at Para H-G. See also ATTORNEY-GENERAL OF ONDO STATE VS. ATTORNEY-GENERAL OF EKITI STATE (2001) 17 NWLR (Pt. 743) 106 at 756 where this Court declared that: –

“It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions are clear and unambiguous effect must be given to them without resorting to any aid internal or external. It is the duty of the Court to interpret the words of the law maker as used. Those words may be ambiguous, but even if they are, the Power and duty of the Court to travel outside them on voyage of discovery are strictly limited (see for example Magor and St. Mellon R.D.C VS NEWPORT (1951) 2 All E.L.R. 839, LONDON TRANSPORT EXECUTIVE VS BETTS (1959) AC 231, ATTORNEY-GENERAL OF BENDEL STATE VS ATTORNEY-GENERAL OF THE FEDERATION & ORS. (1981) 10 S.C. 1, (1981) 12 N.S.C.C. 314.).” It is not, and cannot be the intention of the law to compensate dishonest public officers with statutory protection that defeats the essence of probity in public service. The question is, would it have been the intention of the Public Officers Protection Law to offer a shield and protect public officers found to have violated public trust? The answer again is certainly NO. Doing otherwise would amount to incentivising dishonesty in public service by encouraging potential violators of public trust to benefit and reap the evil fruits of their dishonest behaviour at the expense of national good and public morality. This should never be allowed to happen.

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I wish to make a quick reference to the case of Godwin NWANKWERE VS JOSEPH ADEWUNMI (supra) to the effect that the law (that is Public Officers Protection Law – an adaption of the Public Officers Protection Act), is designed to protect the officer who acts in good faith and does not apply to acts in abuse of office and with no semblance of legal justification whatsoever. See also LAGOS CITY COUNCIL VS. S.A.J OGUNBIYI (supra).
The duty of Court, particularly ours as the Apex Court, is to interpret the statute in accordance with the intention of the law makers. This point is apt in this appeal, as amplified in UGWU vs. ARARUME (2007) 12 NWLR (Pt. 1048) 367 at 498 where this Court stated thus: –

“A statute, it is always said, is “the will of the legislature” and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declares the intention of the legislature.”

Ours is a Court of law and of public policy. We are clear as to the public good behind the public policy intended in the regime of Public Officers Protection law at the Federal and States levels. We are also not unmindful of the intendment of the makers of the law and Order 04118 of Chapter 4 of Kwara State Civil Service Rules under which the Appellant and Respondent contractual relationship arose. We have reconciled and matched both against the facts and evidence before the Court in this appeal. Justice must not be allowed to be “slaughtered” on the altar of technicalities. This Court has declared in several instances that we are not judicial technicians in the workshop of technical justice and the logic of our reasoning is, and as humanly possible, be devoid of technicalities in this case, as in several other previous and up-coming cases. The need to do substantial justice and avoid delving into the error of technicalities is well settled. See for example MAKERI SMELTING CO. LTD. VS. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 447 at 476-477 where it was declared that: –

“The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”
See also AJAKAIYE VS IDEHIA (1994) 8 NWLR (Pt. 364) 504, ARTRA IND. LTD VS NBCI (1997) 1 NWLR (Pt.483) 574, DAKAT VS DASHE (1997) 12 NWLR (Pt.531) 46, BENSON vs. NIGERIA AGIP CO. LTD (1982) 5 S.C. 1.

A number of points have been made that informed our final decision in this appeal. At this stage when respect for probity and public trust is probably, at its low ebb due to corruption and institutional decadences in public service, it would amount to disservice to the polity if this Court allows misplaced or misconceived technicalities to distort public service.
In the final analysis, it is my candid view, based on law and public policy, that no law worth even the piece of papers on which it is printed, if it dignifies corrupt and untrustworthy public servants with statutory protection for committing offences, misconduct and infraction of public interests, good conscious and morality.

In view of the foregoing, and to instill and set an agenda for public probity based on law, the sole issue for determination in this appeal is resolved in favour of the Appellant. This appeal succeeds and it hereby allowed. The judgment of the Court of Appeal delivered on 15th December, 2004 hereby set aside. The decision of the trial Court and its consequential orders dated 2nd May, 2000, is hereby restored.”Per BAGE, J.S.C. (Pp. 12-20, Paras. D-E).

KWARA STATE PILGRIMS WELFARE BOARD v. ALHAJI JIMOH BABA (2018) LPELR-43912(SC)

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