Application of the Law in Relation to Public Officers and Public Authorities in Nigeria: The Public Officers Protection Act (POPA) Revisited

Application of the Law in Relation to Public Officers and Public Authorities in Nigeria: The Public Officers Protection Act (POPA) Revisited

U. E. Okolocha., J. M. Abdulmaleek

Private & Property Law, University of Abuja, Nigeria

DOI: https://dx.doi.org/10.47772/IJRISS.2025.908000507

Received: 11 August 2025; Accepted: 18 August 2025; Published: 18 September 2025

ABSTRACT

Public Officers are agents of the government engaged to perform public duties on behalf of the State. The Public Officers Protection Act (POPA) and the domesticated Public Officers Protection Laws (POPL) at the State level, are designed to protect such officers and authorities from distraction and damages in the course of their duties. This paper reviews the application of the POPA and some POPLs, with various critical examples through the cases. Itz         also reviewed the views of some legal authorities and found ample evidence of unfortunate results from the strict application of the POPA, occasioning miscarriages of justice especially in the area of computation of time. It therefore recommends that the Act be amended in such areas in lieu of its total repeal.

Key words: Justice. Public Officers. Public Authorities. Public Policy. Protection.   

INTRODUCTION

Law as it is, entails the system of rules which a particular country or community recognizes as regulating the actions of its members and its governance which it may enforce by the imposition of sanctions. The ends of law is justice. Without an effective and proper administration of justice in society, people are constrained to resort to self-help and as a result, anarchy becomes inevitable and society eventually degenerates to the Hobbesian Age in which the life of a man become “solitary, poor, nasty, brutish and short”[1]. In practical terms, the courts usually apply their interpretative jurisdiction and consider the merit and substance of a parties’ claim brought before them, while closing their eyes to any appearances that would likely defeat the cause of justice. This is in line with the principle of ubi jus, ibi remedium[2]

Nigeria inherited the English administrative law jurisprudence into its domestic legal system at independence in 1960 as one of the received English laws. The executive arm of government has remained the principal institution driving the machinery of administrative law. Thus, the Constitution of the Federal Republic of Nigeria[3] provides that the executive power is vested in the President at the federal[4] level or Governor at the state level[5] and may be exercised by him either directly or through the Vice-President or Governor or Deputy Governor, Ministers or Commissioners and other officers of the public service. Such powers extend to the execution and maintenance of the CFRN and all laws made by the National Assembly (NA) and all matters with respect to which the NA is competent to make laws[6]. It is the process of executing this power that makes up the administrative arm of government and administrative law[7].

However, over the years and of recent too, the hope of the common man to have his claims meritoriously adjudicated upon and get justice in the court of law has continued to wane and be dashed by statutes like the Public Officers’ Protection Act (POPA)[8] and its equivalent, that is, Public Officers’ Protection Laws of the various States in Nigeria. These laws shield government officials and agencies from liability at the expense of the citizenry and ultimately go down to defeat the course of justice[9].

The first POPA applicable to Nigeria was enacted in 1916 to replace the received English law-the Public Authorities Protection Act of 1893 – which was a statute of general application. However, the purpose of the Public Authorities Protection Act was to protect public authorities in their “corporate personality”, when engaged in the discharge of public responsibilities prescribed by the parliament. The same is the case in Nigeria. This is in line with the opinion of Iguh, JSC, in Ibrahim v. Judicial Service Committee Kaduna State & Anor[10] where he made the following illuminating pronouncement:

It is thus clear to me that the term “public officer” has by law been extended to include a “public department” and, therefore, an artificial person, a public officer or a public body. I do not think that it can be suggested with any degree of seriousness that the Public Officer (Protection) Law Cap. 52 of the Northern Nigeria, 1963 while it protects public officers, cannot in the same way protect a public department, an artificial person or public body, so long as they are sued for an act done in the execution of their public duties. Nor am I able to accept that Cap. 52 does not protect persons sued by their official titles, such as Attorney-General, Inspector- General of Police or Permanent Secretary.

As stated earlier, the Public Officers’ Protection Act was enacted at the inception of colonial government in Nigeria. Unfortunately, and regrettably too, the POPA (just like many other Ordinances in force at the time) has survived over 50 years; since Nigeria gained independence and was wholesomely imported into the civilian democratic setting vide the provisions of the 1999 Constitution.[11] It is generally agreed among scholars, litigants and commentators that the application of POPA in its present form promotes injustice. Some have called for its entire repeal while others have argued that it be modified.[12] This paper reviews the application of the POPA and interrogates its continued relevance with the aim of determining whether there is a need for it to be repealed or amended in the interest of justice, equity and fairness. The paper further makes enquiries on the perceived widespread injustices occasioned against litigants by the continued application of POPA[13].

Application and Scope of the Public Officers Protection Act.

The POPA was incorporated into the Nigerian legislative framework as a Statute of General Application. It was applicable throughout the Federation subject to local re-enactment. However, it does not apply to all States of the federation. It only applies to public officers employed under the federal government and does not extend to public officers employed under the state except states where their limitation laws are in pari materia with the provisions of POPA[14]. The Supreme Court of Nigeria summarized the scope of POPA in the case of CIL Risk & Asset Management Ltd v. Ekiti State Government & Ors[15] thus: …the Public Officers Protection Act does not cover “public officers” in the employ of state governments.

Some states of the federation, in considering the hardship caused by the enforcement of the provisions of the POPA which relates to the three months limitation period within which to bring an action in court have removed same and have made the limitation period the same with private individuals.[16] Thus, the provisions of the Public Officers Protection and Limitation Law of Ebonyi State enjoyed judicial support as seen in the case of Uduma v. Attorney General of Ebonyi State.[17] The POPA is intended, within the limits of the law, to protect a public officer from distraction 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 POPA[18] provides as follows:

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 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-

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…

The POPA protects as distinct entities in certain cases public officers holding public offices in the public service. This includes corporations, sole or public bodies, corporate or incorporates as thumped by Iguh, JSC, in Ibrahim v. J.S.C.[19]

The words public officer or any person in public office as stipulated in section 2 of the Public Officers (Protection) Law, 1963, not only refer to natural persons or persons sued in their personal names but that they extend to public bodies, artificial persons, institutions or persons sued by their names or titles.[20] Similarly, in Ekeogu v. Aliri[21] the Supreme Court stated that the Act is designed to protect a public officer against any action, prosecution or other proceeding; and for any act done in pursuance of or execution of any law, public duty, or authority; or for any alleged neglect or default in the execution of any law, duty or authority. A public officer can be sued outside the limitation period, if he was acting outside the scope of his office as was held Attorney-General of Rivers State v. Attorney-General of Bayelsa State & Anor[22].

Where a Public Officer is acting or has acted within his authority or duty, he may still be liable in certain cases. There are exceptions to the protection provided for “public offices” and “public officers” under the Law.[23] Thus the law does not provide a blanket protection for “public offices” and “public officers.” In Central Bank of Nigeria v. Ukpong[24], the Court of Appeal in the course of interpreting section 2(a) of the Public Officers (Protection) Law of Oyo State[25] which is inpari materia with section 2(a) of the Public Officers Protection Act, opined that there are two conditions precedent to the application of section 2(a) of the Public Officers (protection) Law. The two conditions are: it must be established that the person against whom the action is commenced is a Public Officer or a person acting in the execution of public justices within the meaning of the law; and the act done by the person in respect of which the action is commenced must be one done in pursuance of execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law or authority. The question of who is a public officer and whether his act was done in pursuance of execution of any law, public duty or authority, must be resolved before the limitation period will apply.

Justification for the Enactment of Public Officers Protection Act.

The Supreme Court held in the case of Ekeogu v. Aliri[26] that:

The Act is designed to protect a public officer against any action, prosecution or other proceeding; and for any act done in pursuance of or execution of any law, public duty, or authority; or for any alleged neglect or default in the execution of any law, duty or authority’, though, it does not afford protection for conduct that is criminal or acts done outside the scope of employment.

It is opined and indeed suggested that the provisions of Chapter 4 of the Constitution, dealing with Fundamental Rights ought to and should be excluded from the coverage of the POPA.

The policy behind POPA is founded on the belief that public institutions may be severely handicapped by having to retain records for longer periods than necessary. This is understandable because as at the time POPA was enacted over hundred years ago, records were being preserved manually. The limitation period was needed because the defendant might have lost the evidence to disprove a case, in the event of a long dormant claim. In addition, there would be problems arising from loss of evidence, due to the substantial staff turnover of public authorities and the transfer policy of public authorities.

It is also the general belief that those who go to sleep on their claim should not be assisted by the courts because they have been indolent and those claimants with good case should pursue them with reasonable diligent.[27] These reasons are not good enough for giving preferential treatment to public officers and institutions. If public officers and institutions are protected, why is there no protection given to big companies of comparable size in the private sector? Private companies and individuals suffer sustained prejudice by the application of the provisions of POPA and the requirement of pre action notice. Their claims against public officers and institutions are being defeated by merely procedural advantages secured under the special protection.

Public Officers Protection Act as a Shield of Legal Proceedings on Public Officers

The Immunity Clause

The CFRN[28] places restriction on legal proceedings against public officers. It states that:

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 on 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 purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.

The foregoing 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 his office.[29]

A difference must be made between suing a public officer like the President in his official capacity and the actions, for example, of the National Assembly in impeaching the President in his official capacity. A President or Governor may be impeached and removed from office for illegal actions committed in his official capacity which grossly violate the Constitution.[30]Examples abound of serving Governors whose elections were nullified after they had been sworn into office for over six months period by election tribunals that rules against them.[31]

The Inclusion of Public Authorities as Public Officers

On the statutory front, various enactments provide various cooling-off periods during which the relevant parties are to take steps to resolve the dispute. For instance, the Companies and Allied Matters Act[32] provide that an action against the Corporate Affairs Commission (“the Commission”) shall not be commenced before the expiration of 30 days after a written notice of intention to commence the suit is served upon the Commission by the intending plaintiff. The notice to be served on the Commission is to clearly state the cause of action, particulars of the claim, name, and place of abode of the intending plaintiff, and the relief sought.[33]

In the case of NICON Insurance Plc v. Anagba Ventures Ltd,[34] the Court of Appeal explained the purpose of pre-action notice and the effect of non-compliance with the requirement of a pre-action notice when it held that:

The rationale behind pre-action notice is to enable the defendant know in advance the expected action and if possible, find an amicable means of settlement without recourse to litigation. It also gives the defendant an opportunity to adequately prepare its defence. See the cases of Abuja Municipal Area Council v. C.N. Okoli Transport Co. Ltd [2009] LPELR – 3579 (CA); Eze v. Okechukwu & Ors [2002] LPELR – 1194 (SC). So therefore where an enabling statute provides for pre-action notice, unless it is waived by the party entitled thereto, it must be complied with…[35]

What can be inferred from the above decision, is that generally, a statutory agency has a right to be notified of a suit against them and unless it waives this right, non-compliance with same could render a suit incompetent or irregular. This was the purport of the decision of the Supreme Court in Ntiero v. NPA.[36] In Akahall & Sons Ltd v. NDIC[37], the apex court elucidated on the jurisdictional implications of pre-action notice when it held in summary that non-compliance with the pre-action notice requirements in a suit… goes to the root of the case thereby robbing the court of the requisite jurisdiction to adjudicate over the dispute.

The effect this inclusion creates is the fact that these public institutions may prolong negotiations once they have received a pre-action notice to exhaust the three months limitation period, after which they will renounce all liability against the complainant who then, though unaware, is caught by the three months limitation period under the Act. As opined by Odusote,[38] what this does is make public corporations appear untouchable and cripples the wheels of justice. To an objective observer, this is no more than clustering the wheel of justice in favour of public officers and public institutions, the effect of which is an improper and unjust obstacle in accessing justice.[39] In the words of Denton-West JCA in Nwaka v. Head of Service, Ebonyi State[40] wherein it was stated that the POPA is providing an undeserved shield for public officers against ordinary citizens who as it were, may be ignorant of the provisions of the Act.

Exceptions to the Shield of Legal Proceedings on Public Officers

Cases of Continuance of Damage or Injury

The law permits the institution of legal action outside the three-month period where the action, damage or injury is a continuous one. In the case of continuance of damage or injury, POPA provides that action can be brought on cessation outside the three months. In Michael Obiefuna v. Alexander Okoye,[41] the Supreme Court stated that: the continuance of the injurious effects of an accident is not a continuance of the injury or damage within the meaning of the POPA.

In Michael Obiefuna v. Alexander Okoye,[42] the court held that the claim failed because it was statute barred since continuance of injury means continuance of the act causing the injury not the continuous effect of the injury.

Again, in Ekeoga v. Aliri,[43] the Plaintiff was injured in the eye by her class teacher in a public school. She was admitted for treatment in many different hospitals during which time three-month time limit had lapsed. Despite the fact that she lost the eye and was receiving treatment in the hospitals within the three-month time limit, it was held that the action was statute barred. More particularly disturbing is the decision of the Supreme Court in Adigun v. Ayinde.[44] The Appellant, a civil servant had an automobile accident and sustained very serious injuries in the course of an official assignment, in an official car driven by the first Respondent, a driver in the ministry. The Appellant had been rushed to the University Teaching Hospital in Ibadan, where he spent 18months, and was further referred to a hospital in Edinburgh in the U.K. He was paralyzed from the waist down-wards owing to damage done to his spinal cord. He spent about three years from the date of the accident, moving from one hospital to the other. His disability upon final discharge from hospital was assessed at 100%. On the 21st of January 1981 (a period of about three years) he commenced his action against the 1st Respondent and his employers, the Federal Ministry of Agriculture before the High Court in Minna. The Respondent objected to the hearing of the suit relying on the provisions of the POPA. The trial court upheld the objection and dismissed the suit as being statute-barred. Both the Court of Appeal and the Supreme Court respectively affirmed the decision of the trial court. Belgore JSC stated that:

I share the sentiments expressed in the penultimate paragraph of the judgment that the law has been cruel to the appellant. The appellant has been caught in the strait jacket of computation of time within which to sue and legally seems to have no remedy. The remedy he cannot enforce is that of the litigation in Court of law because his suit is statute-barred.

In Adigun v. Ayinde,[45] the Supreme Court was of the view that the injury referred to in POPA is the injury sustained on the day of the accident and not the continuous effect of the injury on the appellant and therefore the provision in the Act as to the continuance of damage or injury is with effect from when the accident occurred.

The law is that, generally, where the injury complained of is a continuing one, time does not begin to run for the purpose of application of a limitation law until the cessation of the event leading to the cause of action.[46] Also, where the continuance of damage is such that gives rise to a fresh cause of action every time it occurs, limitation law will not apply to bar action on the fresh cause of action.[47]

However, in Inspector Dominic Ibo v. Nigerian Police Force[48] the Plaintiffs plea for continuance of damage or injury was rejected. The Plaintiffs were variously enlisted in the Nigerian Army in 1975 and subsequently had their service transferred to the Nigerian Police Force where they served until retirement in 2005 upon attaining the compulsory retirement age. They approached the court sometime in 2014 to seek redress for their irregular and incomplete pension payments. The defendants filed a preliminary objection to the suit on the ground that the plaintiff’s suit was caught up by the 3 months limitation period under the POPA. Counsel to the plaintiffs contended that the plaintiffs had suffered continuous injury/damage as a result of the actions of the defendants and thereby urged the National Industrial Court to make an exception and not apply the limitation under the Public Officers Protection Act. The Court in its judgment delivered on 3/3/2015, upheld the preliminary objection of the defendants and dismissed the suit holding that the plaintiff’s suit was caught up by the 3 months limitation period under the Act. In this case, the court ignored the defense of the plaintiff that being a pensioner is a continuous status therefore the damage of being deprived of his complete entitlement of his pension benefits also is continuous injury. This ought to be an exception to the application of the Act.

In another development, the Court of Appeal considered the issue of continuous effect of injury in a case and tolled the time, although this goes against the norm established by many judicial pronouncements on the POPA. In Engineer G.F.C Ezeani v. Nigerian Railway Corporation,[49]  the plaintiff/appellant was an employee of the defendant/respondent. He was promoted to a director on 15/04/2007, on 18/04/2007 was retired from the service of the defendant/respondent on the grounds of “public interest”, and on 22/04/2007, was forcibly ejected from his office by armed men. Thereafter the plaintiff/appellant petitioned the Bureau of Public Service Reforms through its steering committee. On 11/08/2008 via a letter, the Chairman of the steering committee and the Secretary to the Government of the Federation (SGF) ordered the reinstatement of the plaintiff/appellant. On 05/01/2009, the Minister, vide a letter ordered the managing director of the defendant/appellant to reinstate the plaintiff/respondent but the respondent ignored the directive. On 18/12/2009, the respondent communicated its refusal to reinstate the appellant. Dissatisfied the plaintiff/appellant went to court but he lost the case in the court of first instance on the ground that the action was statute barred as it had exceeded the limitation period under the POPA. The plaintiff/appellant further appealed and on appeal the court held among other things that the trial court failed to take into consideration the surrounding circumstances. The Court of Appeal further held that the cause of action arose when the letter of 17/05/2009 from the respondent refusing to re-instate the appellant was issued but the “injury (mental and psychological) inflicted on the appellant continued.” The appeal succeeded.[50]

Action outside Statutory Duty

Some public officers have tried unsuccessfully to rely on the Act for protection in matters the commission of crime.[51] In Yabugbe v. C.O.P,[52] the Supreme Court defined the word “Prosecution” used in the Act to exclude criminal matters. In this case, the appellant, an Assistant Superintendent of Police at the material time of the case, 3/6/1979, was arraigned as the third accused along with two others before the Magistrates Court, Oyo. On a charge of unlawfully assaulting one Olayiwola Afolabi on 3/6/1979 and causing him harm and thereby committed an offence contrary to and punishable under Section 296, of the Criminal Code Cap.28 Laws of Western Nigeria 1956. The victim of the assault was alleged to have been arrested by the accused persons for causing obstruction with his car. He was allegedly beaten and dragged to the police station and left in a state of unconsciousness before being taken to the hospital. The victim turned out to be a senior Magistrate. In defense, the accused persons raised the maxim “nemo judex in causa sua” that is to say that the trial Senior Magistrate being a member of the Magistrate Association, cannot try the matter as that would amount to being a judge in his own cause. This defense was rejected and the accused persons were convicted to 12 months imprisonment without an option of fine. On appeal to the High Court, the appeal was dismissed. The court however gave each of the accused persons an option of fine of N250 on the ground that the appellants were first offenders. The 3rd accused further appealed to the Court of Appeal and the appeal was also dismissed. The appellant still felt dissatisfied and appealed to the Supreme Court. In the Supreme Court, the appellant raised a fresh issue to wit; that his prosecution could not stand in view of the fact that it was commenced outside the three months prescribed by the Public Officer’s Protection Law, Cap.106, Laws of Oyo State of Nigeria, 1978.

The Supreme Court stated that it could not have been the intention of the State to shield or protect public officers from criminal prosecution for criminal offences committed by them in the guise of performing their official duties by limiting the time to initiate prosecution to only three months. According to Akpata, JSC:

It cannot be said to be within the contemplation of the law-makers to protect public officers against prosecution for crimes they may commit on the pretext or otherwise that such crimes were committed in the lawful execution of a public duty. It cannot be. The prosecution of the appellant was proper. The protection law is not available to him.[53]

Also, in Egbe v. Yusuf,[54] the Supreme Court, per Belgore, JSC held that there is no time limit for prosecuting an officer for crime even if that crime was committed in course of public duty.[55]

Recovery of Land

POPA does not apply to cases of recovery of land and land disputes. The limitation period under the POPA will not apply where the claim is for recovery of land. In the case of Mulima v. Usman,[56] it was held that: section 2 (a) of the Public Officers Protection Act does not apply in cases of recovery of land. Similarly, in A. G. Rivers State v. A. G., Bayelsa State,[57]  the same Supreme Court held: the protection afforded public officers under the Public Officers (Protection) Act does not apply in cases of recovery of land…Galadima, J.S.C, in Attorney-General of Rivers State v. Attorney-General of Bayelsa State & Anor,[58] held instructively thus:

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.

Breach of Contract or Recovery of Debt

An action for breach of contract does not fall within the contemplation of section 2 (a) of the POPA. A plaintiff’s right of action will not be extinguished when not brought within the limitation period for the purpose of the POPA where the subject of litigation is a breach of contract or recovery of debt. Thus, where it is discernable from the statement of claim that the cause of action is upon a breach of contract, this special defense under the POPA will not be available to the defendant. In the case of Roe Ltd v. UNN,[59] the Supreme Court reiterated the principle and held as follows: …I entirely agree with learned counsel for the Appellant that the Public Officers Protection Act does not apply to cases of breach of contract for work done or recovery of debt.[60] In Bureau of Public Enterprises v. Reinsurance Acquisition Group Ltd & Ors[61] the Court of Appeal in its lead judgment relied on the dictum of Mohammed JSC in FGN v. Zebra Energy Ltd.[62] Mohammed JSC in FGN v. Zebra Energy Ltd[63]  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.

Claims for Work and Labour Done

Section 2 of the POPA does not apply to work and labour done and cases of contract. The cases of Bureau of Public Enterprises v. Reinsurance Acquisition Group Ltd & Ors[64] and F.G.N v Zebra Energy Ltd.[65] Show that 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.[66]

Bad Faith

Public officers who act in bad faith will not be exempted from the protection guaranteed by the law. For a public officer to enjoy the protection offered under the POPA, such officer must have acted in good faith and with legal justification. The underpinning philosophy of this exception is to make public officers accountable, as was held in IGP v. Olatunji.[67]

In the case of Sule & Ors v. Orisajimi,[68] the Supreme Court stated the principle poignantly as follows:

On the issue of Section 2 (a) of the Public Officers’ Protection Act, I’m in agreement with the Court below. The law is now settled that Section 2 (a) of the Public Officers Protection Act had been enunciated by the Supreme Court in the case of Nwankwere v. Adewunmi (Supra), per Bret JSC thus: “The law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification.” See also Lagos City Council (Trading under the Name of Lagos City Transport) v. S.S.J. Ogunbiyi (1969) All NLR 287 at 289. Clearly, the Appellants acted in abuse of office and cannot benefit from the protection of Section 2 (a) of the Public Officers Protection Act.[69]

Fraudulent Concealment, Collusion or Deceit.

The limitation period under the POPA will not apply where there is fraudulent concealment, collusion or deceit on the part of the defendant. In Salahudeen & Ors v. Ajibola & Ors,[70] the Court of Appeal held inter alia –

…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 v. A. G Bayelsa State & Anor [2012] LPELR – 9336 (SC) gives some of the exceptions to the Act. See also Hassan v. Borno State Govt. (2016) LPELR – 40250 (CA), Hon. Minister of the FCT v. J. Alucon Ltd (2017) LPELR – 42870(CA).

Removal of Public Officers from Service

Public servants do not hold their appointment at the pleasure of the state. Therefore, no state can dismiss them at will under Nigerian law. The Supreme Court in Shitta-Bey v. Federal Public Service Commission[71] has put an end to the right of the state to dismiss its servants at will hitherto considered as part of the Crown’s progressive rights applicable in Nigeria both before and after independence. It was held that the Civil Service Rule invests in these public servants a legal status; they can be properly or legally removed only as provided by the said rules. Accordingly, the principle of law which precludes mandamus from issuing against the Crown has historical justification in English legal history and there is no basis for its application in Nigeria (a Republic), there being no provision for it in any enactment in pour statute books. It is now settled law that there are roughly three categories of contracts of employment in Nigeria[72] viz:

1. the purely master and servant contract of employment;
2. the regulated contract of employment having statutory flavor; and
3. the hybrid form of the above two categories.

There is no fixed rule of law defining the degree of misconduct which would justify a dismissal. In the law of master and servant, a misconduct is what the employer considers to be a misconduct.

Public service in Nigeria encompasses service in government departments, agencies[73] as well as statutory or public corporations. For the purpose of security of tenure, Nigeria judges draw a distinction between employees in the private and public sector on the one hand, and in the public service, between civil servants and other public servants on the other hand.[74]

In Daniel v. Adaji[75] it was held by the Court of Appeal, that the National Electric Power Authority (NEPA) formed part of the public service of the Federation. In Okomu Oil Palm Co. Ltd. v. Iserhienrhien[76], it was held by the Supreme Court that before the respondent can take benefit of the Civil Service Rules, he must prove that he was employed by the Civil Service Commission.

CONCLUSION

In this paper, it has been observed that individuals who suffered legal injury as a result of the acts of public officers were caught in the web of statute bar. Even the exceptions created by Courts to cushion the effect of the injustice does not seem to provide the needed solution owing to the clog of three months limitation period provided by POPA. This is a serious infringement on the rights of individuals to access justice. As seen in the decided cases in this paper, the protection provided by POPA availed the public officers because the courts adhered to the express letters of the Act despite the cry for justice from the aggrieved parties. This is why some scholars have argued that the Supreme Court having recognized the injustice occasioned by POPA ought to have recommended the repeal of same.[77]

The inclusion of public authorities to the definition of the term “public officer” has given these public bodies double protection against actions from litigants. There already exist a requirement of pre-action notice to be given to corporate bodies before any action can lie against them. The problem this inclusion creates is the fact that these public institutions may prolong negotiations once they have received a pre-action notice to exhaust the three months limitation period, after which they will renounce all liability against the complainant who then, though unaware, is caught by the three months limitation period under the Act. 

RECOMMENDATIONS

Flowing from the above, this paper recommends that the provisions of POPA be amended to include all the exceptions provided in the case laws earlier discussed, including the following:

Private litigants and public authorities should, in general, be placed on an equal footing. POPA should therefore be amended in line with other general statute of limitations, in particular for actions arising out of personal injury cases. A new limitation period of three years is recommended and that it operates uniformly, without the need for prior notice, whoever the defendant may be. Some states of the federation have taken the initiative of removing the three months limitation period and make the limitation period the same with private individuals.[78] More so, that the Constitution sets no condition of pre-action notice requirement before a citizen may approach the Court for redress, any statute that purports to set such conditionality should be regarded unconstitutional.

It is recommended that the provisions of Chapter 4 of the Constitution[79], dealing with Fundamental Rights should be excluded from the coverage of the POPA. The Constitution being the Grundnorm[80] and Fons et Origo[81] should entrench the protection of rights only for a subordinate law to subtract from such protected rights. The limitations to such rights are already constitutionally provided for[82].

The protection of public authorities through pre-action notice requirement as a condition precedent should be discouraged. The three months limitation period imposed by POPA should start running only after the expiration of the term of notice and not concurrently. The limitation clock should be paused during the pre-litigation negotiations.

The existence of this pre-action notice as a condition precedent before instituting an action against public officers has caused many cases in this paper to fail on the altar of procedural irregularities and has been a worrying source of injustice. Procedural abuse should be distinguished from clear exceptions. Indeed, judicial activism in this regard should be encouraged by Bench and Bar leaders.

In sum, a combination of the provisions of POPA and requirements of statutory pre-action notice seemingly amount to denial of justice. These provisions are out of date with the reality of modern governance. An amendment is strongly advised as they are serious infringements of the rights of individuals to access the justice system. This is in line with the opinion of Denton-West, JCA in Nwaka v. Head of Service, Ebonyi State that:

It appears … that the Public Officers Protection Act is providing an undeserved shield for public officers against ordinary citizens who as it were, may be ignorant of the provisions of the Act. It is my humble view that laws should operate to enhance the lives of citizens and not to deprive the citizenry the opportunity to ventilate his grievances especially where there is an infraction of their entitlement and constitutional right.[83]

As the Constitution sets no condition precedent before a citizen may approach the Court for redress, any statute that purports to set such conditionality should be regarded unconstitutional.

Mitigating the problems POPA is causing by making the period of limitation run from the accrual of the cause of action rather than the date of the act, neglect or default in question, or in the event of injury the exception should accommodate the effect of the injury. The accrual of cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can began to maintain his action. Time begins to run when the cause of action crystalizes or becomes completethe most crucial consideration is when the cause of action arose or accrued”.

REFERENCES

Textbooks

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2. Dicey, A.V. Introduction to the Study of the Law of the Constitution (Macmillan Publishers London, 1915).
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5. Iluyomade, B.O. Cases and Materials on Administrative Law in Nigeria (Obafemi Awolowo University Press Limited, Ile-Ife, 1992).
6. Jan-Erik, L. The Public Sector: Concepts, Models and Approaches (Sage Publications Ltd, London 2000).
7. Malemi, E. Administrative Law (Princeton Publishing Company Lagos, 1999).
8. Marshall, T.H. Citizenship and Social Class (Cambridge University Press, 1950).
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10. Nwabueze, B.O. How President Obasanjo Subverted the Rule of Law and Democracy, (Ibadan, Gold Press ltd., 2007).
11. Nwogugu. E.I. Family Law in Nigeria, (HEBN Publishers Abuja, 2014).
12. Oluyede, P.A. Nigerian Administrative Law (University Press, 1988).
13. Phillips, O.H. Constitutional and Administrative Law (Sweet and Maxwell, London 1978).
14. Sani, A.M. “Discipline and Ethical Values: A Tool for Effective Public Service Delivery in Wamako” A.M (ed), Ethics and Discipline in Public service (Ahmadu Bello University Press Ltd, Zaria, 2013).
15. Sokefun, J.A. etal, Human Right Law, (Lagos, National Open University of Nigeria, 2008).
16. Udoma, U. History and the Law of the Constitution in Nigeria, (Lagos, Malthouse Press ltd., 1994).
17. Wade, W and Forsyth, C.F. Administrative Law (Oxford University Press, Oxford 2004).
18. Weber, M. Rheinstein, M. (ed), On Law in Economy and Society (Harvard University Press Cambridge, 1954).
19. Yusuf, A. Introduction to Legal Research Methodology, (Ajiba Printing Production Kaduna, 2013).

Articles In Journals

1. Agu, O.C and Ude, C.F “Application and Scope of the Public Officers Protection Act in Nigeria: A Critique” [2019] (3) African Journal of Constitutional and Administrative Law (AJCAL).
2. Amucheazi, O.D and Moneke, F “The Ambit of Legislative Powers under the 1999 Constitution of Nigeria”, [2009] (1) (1) Legislative Practice Review.
3. Ashi, V.B. “Limitation of Actions under the Public Officers’ Protection Act: Evaluation of Jus Dicere and the Poverty of the Declaratory Theory of Judicial Methodology” [2007-2010] Nigerian Current Law Review.
4. Babalola, J.A. “Judicial Review of Legislation in Nigeria: A Constitutional Imperative”, [2015] (2) (1), University Law Journal.
5. Davis, K.C. “Administrative Law” [1952] (27) (4) Indiana Law Journal.
6. Fayokun, K.O. “Removal of Public Officers from Office: Law and Justice in a Flux” [2012] (5), Journal of Science & Sustainable Development.
7. Igwenyi, B.O. etal. “Appraisal of the Limitations of Judicial Review of Administrative Powers in Nigeria” [2022] (4) (3) International Journal of Comparative Law and Legal Philosophy.
8. Igwenyi, B.O. etal, “A Public Officer Convicted of Breach of the Code of Conduct for Public Officers in Nigeria cannot be granted Amnesty: A Legislative Overkill”, [2019] (7) (7), Global Journal of Politics and Law Research.
9. Ihugba, B.U. etal, “Revisiting the Prohibition of Private Practice for Public Officers in Nigeria and its implication on provision of technical services: The Case of Law Lecturers” [2019] (13) (1), Journal of Commonwealth Law and Legal Education.
10. Ijalaiye, D.A. “Democratic Governance in Nigeria: A Critical Appraisal” in Law, politics and Development: The Challenges of an Emerging Mega City: Essays in Honour of Babatunde Raji Fashila, SAN, (Lagos, NBA Ikeja Branch, 2010).
11. Imam, I. “Judicial Activism in Nigeria: Delineating the Extend of Legislative-judicial Engagement in Law Making” [2015] (15) (1) International and Comparative Law Review.
12. Jakab, R. “The Influence of EU Law on Public Administration in New Member States” [2020] (1) Public Governance, Administration and Finances Law Review.
13. Julian, R. “Proportionality and Variable Intensity of Review”, [2006] (65) (1), Cambridge Law Journal, 181.
14. Madubuike-Ekwe, N.J and Mbadugha, J.N. “The Scope and Limitations of Legislative Powers under the 1999 Constitution of Nigeria” Benson Idahosa University Journal of Private and Property Law.
15. Marshall J.B. and Murtala, A.M. “Public Service in Nigeria- An Overview of Functions and Code of Conduct” [2015] (3) (1), Global Journal of Politics and Law Research.
16. Muktar Mohammed, Ph.D: “Judicial Activism and a Developing Legislature in Nigeria”- Tuma Law Review – a journal of the Faculty of Law, Tumaini University Makumira (TUMALR) Tanzania. (May, 2013). Vol. 2 no. 1
17. Nwocha, M.E. “An Appraisal of Judicial Powers under the Nigerian Constitution” [2017] (6) (10) International Journal of Humanities and Social Science Invention.
18. Nwogu, M.I. “The Rule of Law in Governance in Nigeria” [2010] (1) (1) Nnamdi Azikiwe University Journal of International Law and Jurisprudence.
19. Odusote, A. “The Nigerian Public Officers Protection Act: An Anachronistic Legislation Yearning for Reforms”, [2019] (9) (1), Journal of Public Administration and Governance.
20. Ogboye, L. and Yekini,O. “Constitutionalism and Good Governance in Nigeria (1999-2014)” [2014] (1) NAUJILJ.
21. Ogbuabor,A. “Expanding the Frontiers of Judicial Review in Nigeria: The Gathering Storm” [2011-2012] (10) Nigerian Juridical Review.
22. Otu, M.T. “Administrative Law and the Challenges of Good Governance in Nigeria under Democratic System of Government: the Exigency of Legal Reforms” [2017] (2) (1) International Journal of Scientific Research in Humanities, Legal Studies & International Relations.
23. Oyewo, O “Sounding the Death Knell of the Public Officer Protection Act/Law in Nigeria” [2016] (4) (1) International Journal of Liberal Arts and Social Science.
24. Prothro, J.W and Grigg, C.M “Fundamental Principles of Democracy: Bases of Agreement and Agreement the Journal of Politics” [1960] (22) (2) The Journal of Politics.
25. Riesenfeld, A. etal, “Judicial Control of Administrative Action by Means of the Extraordinary Remedies in Minnesota” [1949] (33) (7) Minnesota Law Review.
26. Shehu, A.T.“Judicial Review and Judicial Supremacy: A Paradigm of Constitutionalism in Nigeria” [2011] (11) (1) International and Comparative Law Review.
27. Taiwo, E.A. “The Supreme Court and the True Ambit of Public Officers Protection Act: A Critique”, [2003] (1) (4) Nigerian Bar Journal.

Internet Sources

1. Ademola A. (2012). Why Code of Conduct Bureau should not be Removed from the Constitution. thisdaylive.com/article/why-code-of – conduct – bureau – should not – be – removed – from – the – constitution
2. Anyim, B.A. etal, “Civil Servants in Nigeria: Servants or Masters? An Overview”103.<https://www.google.com/url?esrc=s&q=&rct=j&sa=U&url=https://journals.ezenwaohaetorc.org/index.php/NAJP/article/download/912017009/195&ved=2ahUKEwjh48_lo5SLAxX4XEEAHdyBLe8QFnoECAIQAg&usg=AOvVaw1SwSQKgNiljyxo2lD_OT8l> Accessed on the 12^th day of January, 2025.
3. Badmos, A. Has the Supreme Court Created a New Exception to the Application of Section 2(A) of the Public Officers’ Protection Act? <https://ssrn.com/abstract=3632759>
4. Heckscher, E.F. “The Continental System: An Economic Interpretation” 2018. https://www.econlib.org/library/YPDBooks/Heckscher/hksrCS.html?chapter_num=25#book-reader
5. Igwenyi etalO. “An Appraisal of the Limitations of Judicial Review of Administrative Powers in Nigeria”, 32-38. <https://www.nigerianjournalsonline.com/index.php/IJOCLLEP/article/view/3257/0>
6. Ogiga, O.I. “A Practical Approach to the Defence of the Limitation under Section 2(a) of the Public Officers Protection Act” <https://www.alaiyingich.com/wp-content/uploads/2021/10/POPA-review.pdf>
7. Orie, E.G. “Administrative Law”, <https://nou.edu.ng/coursewarecontent/PAD%20%20844%20ADMINISTRATIVE%20LAW.pdf
8. Peters, I. “Public Officers Protection Act/Law cannot be invoked to Protect Fraudulent Public Officials” 2018. <https://dnllegalandstyle.com/2018/public-officers-protection-act-law-cannot-be-invoked-to-protect-fraudulent-public-officials/
9. Rakshita, P. ‘Application of Principles of Natural Justice to Administrative Actions’ <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3622103>
10. Udenta, J.O.E. Ndigbo and the Current Political Equation in Nigeria: A Parametric Outlook, 24th Inaugural Lecture of Enugu State University of Science and Technology Delivered on January 26^th, 2017 at Enugu.

FOOTNOTE

[1] T. Hobbes, Leviathan (or The Matter, Form and Power of A Commonwealth, Ecclesiastical and Civil), 3^rd Edn, 1887, George Routledge and Sons, Glasgow, xiii.

[2] Where there is a right, there must be a remedy.

[3] Section 5 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). (Hereinafter referred to as “the Constitution” or “CFRN”).

[4] S.5(1)(a) of the CFRN.

[5] S.5(2)(a) of the CFRN

[6] S.5(1)(b) of the CFRN; and S.5(2)(b) at the state level

[7]E.G. Orie, “Administrative Law” https://nou.edu.ng/coursewarecontent/PAD%20%20844%20 ADMINISTRATIVE %20LAW.pdf accessed 12^th March, 2024, 27.

[8] Cap P41 LFN, 2004.

[9] O .C. Agu and C.F. Ude “Application and Scope of the Public Officers Protection Act in Nigeria: A Critique” [2019] (3) African Journal of Constitutional and Administrative Law (AJCAL), 2.

[10] [1998] 14 NWLR (Pt. 584)

[11] Section 315, (n9).

[12] O. Oyewo, “Sounding the Death Knell of the Public Officer Protection Act/Law in Nigeria” [2016] (4) (1) International Journal of Liberal Arts and Social Science, 106.

[13] A. Odusote, “The Nigerian Public Officers Protection Act: An Anachronistic Legislation Yearning for Reforms”, [2019] (9) (1), Journal of Public Administration and Governance, 220.

[14] O.I. Ogiga, “A Practical Approach to the Defense of the Limitation under S.2(a) of the Public Officers Protection Act.” <https://www.alaiyingich.com/wp-content/uploads/2021/10/POPA-review.pdf> Accessed7th March, 2024

[15] [2020] LPELR 49565 (SC).

[16] For example, section 40 of the Limitation Laws of Rivers State, Cap 80. Laws of Rivers State, Vol. 4, 1999; Sections 42 and 44 of the Limitation Laws of Abia State, Cap.24. Laws of Abia State, 2001; and Sections 42 and 44 of the Public Officers Protection and Limitation Law of Ebonyi State, Cap.102, Laws of Ebonyi State, 2009.

[17] [2013] LPELR 21267.

[18] POPA, (n9).

[19] [1998] 14 NWLR (Pt. 584).

[20] This was the decision of the Supreme Court in the case of Central Bank of Nigeria v. Adedeji [2004] 13 NWLR (Pt. 890) p. 226 at 245 Para. F.

[21] [1991] 3 NWLR (Pt.179) 258. But it does not afford protection for conduct that is criminal or acts done outside the scope of employment. See, Yabugbe v C.O.P [1992] 4 NWLR(Pt.234) 152

[22] [2013] 3 NWLR (Pt.1340) 123 at 149, paras F-G.

[23] Attorney-General of Rivers State v. Attorney-General of Bayelsa State & Anor [2013] 3 NWLR (Pt.1340) 123 at 148, para. G.

[24] [2006] 13 NWLR (pt. 998) 555 at 559.

[25] Public Officers (Protection) Law, Cap 106, Laws of Oyo State, 1978.

[26] [1991] 3 NWLR(Pt.179) 258.

[27] C. Harlow, Law and Administration (Cambridge University Press, Cambridge, 2009). <https://doi.org/10.1017/CBO9780511809941> Accessed on the 24^th February, 2024.

[28] S.308 (1) (n9).

[29] S.308(3) (9).

[30] S.143, (n9).

[31] For example, Osunbor, Governor of Edo State had his election nullified by an election tribunal over one year after he had been sworn into office as Governor of Edo State of Nigeria. Comrade Adams Oshiomhonle of the Action Congress Party was declared by the election tribunal to have been validly elected as de jure Governor of Edo State. He took over from Prof. Osunbor. The same process of election nullification by the election tribunal took place in Anambra and Ekiti states respectively.

[32] Section 17 (2), Companies and Allied Matters Act, 2020, Cap C21, LFN, 2004

[33] Ibid.

[34] [2018] LPELR-46672(CA).

[35] Ibid, 46672.

[36] [2008] 10 NWLR (Pt.1094) 129.

[37] [2017] LPELR-41984(SC).

[38]O. Odusote. (n15).

[39]Ibid.

[40][2008] 3 NWLR (Pt. 1073) 156 at 163.

[41] [1961] All NLR 357 at 360.

[42] Ibid, 362.

[43] [1991] 3 NWLR (Pt.179) 258.

[44] [1993] 8 NWLR (Pt.313) 516.

[45] Ibid, 516.

[46] Abiodun v. Attorney General of the Federation [2007] 15 NWLR (Pt. 1057) 359; Nigerian National Petroleum Corporation v. Mallam Idi Zaria [2014] LPELR-22362 per Abiru JCA (CA).

[47] The Shell Petroleum Development Company of Nigeria Ltd v. Amadi [2010] 13 NWLR (Pt. 1210) 82.

[48]  Judgment of the National Industrial Court, Calabar Division in Suit No NICN/CA/39/2014 (Unreported)

[49] [2013] LPELR-22065 (CA).

[50] Ibid, 2202.

[51] O Oyewo, ‘Constitutionalism and the Oversight Functions of the Legislature In Nigeria’, Draft paper presented at African Network of Constitutional Law conference on Fostering Constitutionalism in Africa Nairobi, April 2007, 104. See Muktar Mohammed, Ph.D: “Judicial Activism and a Developing Legislature in Nigeria”- Tuma Law Review – a journal of the Faculty of Law, Tumaini University Makumira (TUMALR) Tanzania. (May, 2013). Vol. 2 no. 1

[52] [1992] 4 NWLR (Pt. 234) 152 at 170-171 (SC)

[53] Ibid, 177.

[54] [1992] 23 NSCC (Pt.11) 243.

[55] Ibid, 251.

[56] [2014] 16 NWLR (Pt.1432) 160 at 212, paras. C-E.

[57] [2013] 3 NWLR (Pt.1340) 123 at 150.

[58] [2013]3 NWLR (Pt.1340) 123, paras. A-C.

[59] [2018] LPELR – 43855(SC).

[60] See also FUTO v. AMCON & Ors [2019] 47327 (CA) Per Obaseki-Adejumo, J.C.A (pp. 31-33, paras. F-A).

[61] [2008] LPELR-CA/A/195/M/05, Mary U. Peter-Odili, J.C.A. (as she then was)

[62] [2002] 18 NWLR (pt.798) 162 at 196

[63] Ibid, 196.

[64] [2008] LPELR-CA/A/195/M/05, Mary U. Peter-Odili, J.C.A. (as she then was )

[65] [2002] 18 NWLR (pt.798) 162 at 196

[66] See also Osun State Government v. Dalami Nigeria Limited (Suit No: SC. 277/2002)

[67] 21 NLR 52

[68] [2019] LPELR 470 (SC) Per Bage, J.S.C (p. 9, paras. A-E).

[69] Ibid, 470. See also Awolola v. Governor of Ekiti State & Ors [2018] LPELR 46346 (SC) Per EKO, J.S.C (pp. 47-50, paras. B-E).

[70] [2019] LPELR 47412 (CA) Per BARKA, J.C.A (pp. 37-38, paras. D-C).

[71] [1981] NSCC 19; (1981) I SC 40

[72] Taiwo v. Kingsway stores Ltd. [1950] NLR 122

[73] C. Emeka, Employment Law, (Bemico Publishers Nig. Ltd. 2004), 94.

[74] K.O. Fayokun, “Removal of Public Officers from Office: Law and Justice in a Flux” [2012] (5), Journal of Science & Sustainable Development, 90.

[75] [1998] II NWLR (pt. 574) 524.

[76] [2001] 21 WRN 161.

[77] O. Oyewo, (n14). See Usman Ibrahim, Professor Muktar Adamu Mohammed & U.E. Okolocha, PhD,“An Analysis of the Imperative for Autochthonous Constitution Making in Nigeria’s Plural Society” Journal of Law & Global Peace (JLGP) a Journal of International Institute of Research & Development IIRD 2025 Vol. 10 No.2 DOI: 10.56201/JLGP

[78] Sections 42 and 44 of the Limitation Law of Abia State Cap.24 of 2001; Sections 42 and 44 of the Public Officers Protection and Limitation Law, Cap.102, 2009 of Ebonyi State, Section 43 of the Limitation Law, Cap 80. Laws of Rivers State. The provisions of Public Officers Protection and Limitation Law, Cap.102, 2009 of Ebonyi State enjoyed judicial support in the case of Udumav v. Attorney General of Eboyin State, [2013] LPELR 21267.

[79] Sections 33 to 46 of the Constitution.

[80] The superior (or mother or transcendental) law.

[81] The first and original (foundational) law.

[82] Each of the protected rights have exceptions as non is absolute. Section 45 specifically delimits some of them.

[83] (2008) 3 NWLR (Pt. 1073) 156 at 163