In the Court of Appeal,
Ilorin Judicial Division
Holden at Ilorin,
On Friday, December 17, 2010, Before their Lordships:
Tijani Abdulahi, Justice, Court of Appeal;
Ignatius Igwe Agube, Justice, Court of Appeal;
Chima Centus Nweze, Justice, Court of Appeal;
Appeal No. CA/IL/8/2009
Between
Abdullahi Ibrahim (appellant)
and Inspector General of Police (respondent) and Others.
BY the doctrine of stare decision, subordinate courts are not permitted the indulgence of nibbling at the reasoning of superior courts, that is, courts which are higher than them in the judicial hierarchy. So held the Court of Appeal, holden at Ilorin, in a unanimous leading judgment delivered by his Lordship, C.C. Nweze, JCA, and his learned brothers, Tijani Abdullahi, Ignatius Igwe Agube, JJCA, concurring while allowing the appellant?s appeal. The parties were represented by the appellant in person and Y. Olarenwaju, Senior State Counsel, for the 2nd and 3rd respondents. The facts are as contained in the body of the judgment.
This is an appeal against the judgment of the Kwara State High Court, holden at Ilorin (Coram Elelu-Habeeb J.). In its judgment delivered on September 24, 2007, the court (hereinafter referred to as ?the lower court?) dismissed the appellant?s application on the ground that it was statute-barred having been instituted outside the three months stipulated by Section 2(a) of Public Officers Protection Act.
The appellant had commenced an action before the lower court seeking redress against the respondent for the violation of his rights to personal liberty; dignity of human person; presumption of innocence, among others, the substantive action was initiated through a motion on notice dated June 20, 2005. It must be observed here that the appellant, as claimant, initially beseeched the Federal High Court, Kwara State Division, for the said reliefs. By order of that court, the suit was transferred to the High Court of Kwara State, Ilorin Judicial Division.
The respondents greeted the substantive suit with a notice preliminary objection, which prayed for the following orders:
? The alleged act of the claimant/respondent complained (sic) what of (sic) happened between March 14 and 16, 2005;
? The suit was filed on April 5, 2006;
? The 12 months allowed for bringing such an action has elapsed;
? The respondents acted on the complaint lodged before its command by one Bayo Fatile of the Silver Training Group (STG) who is a necessary party to this suit;
? Failure to join the complaint as a necessary party makes the suit to be incompetent;
? The 2nd and 3rd respondents are public officers.
The appellant/claimant filed his reply to the preliminary objection.
The court took arguments on the preliminary objection. It dismissed the action of the claimant for being statute barred, page 64 of the record. It reasoned that since the second and third respondents were public officers, they ought to have been sued within the three months? period prescribed by the Public Officers Protection Law. Dissatisfied with the judgment, the appellant, by his notice of appeal dated October 15, 2007 and filed on October 19, 2007, appealed against be said judgment on the two grounds stated therein. He formulated the following issues for the determination of this appeal.
Issues for determination
? Whether the provisions of Public Officers? Protection Act apply to the Fundamental Rights proceedings by virtue of Order 1 Rule 3 (1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979;
? Whether the provisions of Public Officers? Protection Act apply to the Fundamental Rights proceedings by virtue of Order 1 Rule 3 (1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979; and
? Whether the hearing on the preliminary objection of the respondents before or without granting leave to the appellant to seek redress for the series of violations of his fundamental rights against the respondents is competent.
Without any further ado, we shall adopt the issues formulated by the appellants in the determination of this appeal. After all, it is his appeal.
Arguments on issue one
The appellant, who appeared in person, adopted his brief of arguments. He argued that the provisions of the Public Officers? Protection Act (hereinafter simply referred as the Act) pre-existed the Fundamental Rights (Enforcement Procedure) Rules 1979 (hereinafter simply referred to as the 1979 Rules) and were applicable to fundamental rights proceedings then. However, since the promulgation of the 1979 Rules of January of 1, 1980, the said Act ceased to apply to fundamental rights proceedings. The effect was that the first limb of Order 1 Rule 3 (1) of the 1979 Rules evolved its own express 12 months? period of limitation for the institution of suit.
The appellant contended that it was absurd for the trial judge to have interpreted the second limb of the same Order 1 Rule l3 (1) of 1979 Rules as reviving the three months? period of limitation under the Public Officers? Protection Act so as to render the earlier 12 months? period of limitation in the same Order 1 Rule 3(1) of FREP?79 ineffective.
He submitted that the only proper interpretation open to the trial judge was to interpret the first limb of Order 1 Rule 3(1) of the 1979 Rules in such a manner as to override the second limb of the same Order 1 Rule 3(1), which makes reference to ?any other enactment? which may include the Public Officers? Act which, in turn, stipulates a-three-month period of limitation. Abia State University and Ors vs Chima Anyaibe (1996) 3 NWLR (pt. 439) 646,661.
For the respondents, it was contended that the Act pre-existed the 1979 Rules. Thus, if the said Rules intended to abrogate the time prescribed by the Act, it would have done so expressly. Since this was not done, the obvious conclusion is that the time limits provided by the Act are still operative law. Counsel submitted that for a competently instituted action against any public officer, it must be commenced within three months. Any action instituted outside the prescribed period is incompetent because it is statute barred, citing Orders 1 Rules 3(1) of the 1979 Rules; Ibrahim V JSC (1998) 12 SCJN 255, 272.
Counsel observed that the second and third respondents are officers who come within the purview of Public Officers? Protection Law. It was submitted that the law applies to all civil matters, once the officers involved are performing their official duties, State vs Onagoruwa (1992) 2 NWLR (pt. 221) 33,55.
He explained that the duties of Police Officers, among other things, include arrest, detection of crime etc., citing Section 24 (1)(a) of the Police Act. Under the said section of the Police Act, the police shall be employed for the prevention and detection of crime; the apprehension of offenders; the preservation of law and orders; the protection of lives and property and the due enforcement of all laws and regulations with which they are directly charged.
Resolution of the issue
As noted at the outset, the judgment that prompted this appeal was delivered on September 24, 2007. Specifically, the reasoning of the lower court, which agitated the appellant can be found on pages 67-68 of the record. Listed to the court?s reasoning:
Order 1 Rule 3 (1) of the Fundamental Human (sic) Rights (Enforcement Procedure Rules) 1979 made mention of any period prescribed by any other enactment and public officers can only be sued within three months, failure of which such rights shall be deemed to have lapsed. In the originating summons, the Act complained of occurred between March 14 and 16, 2005 and this summons was filed on September 26, 2005? This shows clearly a period of about six months after the Act complained of occurred.
Even if the originating summons was filed on June 20, 2005, the action still falls outside the three months? period stipulated by Section 2(a) of the Public Officers? Protection Act. For the above reason, therefore, the originating summons in this case is statute-barred and this being so, this court lacks the jurisdictional competence to entertain same?
Wonders shall never end! This is a curious piece of reasoning which constitutes an embarrassment to the impregnable doctrine of state decision. The Supreme Court 2003 (that is four years before this judgment being appealed against) and this court in 1996 (that is 11 whole years before the said judgment) had resolved this question is such an admirable manner that admits of no ambivalence. In FRN vs Ifegwu (2003) 45 WRN 27, 69, the learned Senior Advocate for the respondent had contended very strenuously that it was the limitation period ordained in the Public Officers? Protection Act, which should be construed in determining whether an action seeking a remedy to enforce rights was statute-barred or not.
Uwaifo JSC, who read the leading judgment of the court, unequivocally stated thus: ?It would be argument carried too far to say that the Public Officers? Protection Act applied to bar a relief sought in connection within an error committed in purely judicial capacity. It does not. The remedy sought is to enforce a constitutional right contravened by a court acting judicially. The time within which to seek that remedy is not subject to the time prescribed by the (Act). There is no reason why it should. If it did, it would likely conflict with court rules.
In Abia State University and Ors vs Anyaibe (supra), one of the issues for determination was framed thus:
? Whether the trial judge was right holding that the 12 months? period prescribed by Order 1 Rule 3(1) of Fundamental Rights (Enforcement Procedure) Rules 1979 overrides the limitation period of three months within which a person can institute legal proceedings of 1978 (as amended) by Imo State University Edict No. 5 of 1991.
Katsina-Alu JCA (as he then was), who reads the leading judgment, proceeded thus:
Section 22(2) of the Edict provides that no suit shall be brought against the university unless it is commenced within three months from the day the cause of action arose. Order 1 Rule 3(1) of the Rules provides inter alia that an applicant must apply for leave within 12 months from the day the cause of action arose or within ?such other period as may be prescribed by any enactment.? The contention of the appellants is to the effect that this provision of the Rules recognises and protects Section 22(2) of the Edict. In other words, if the respondent herein commenced his action outside three months? period prescribed by the ?Edict, Order 1 Rule 3(1) of the rules cannot save the action.
In determining the proper construction to be given to the provision of Order 1 Rule 3 (1) 1 of the Rules and Section 22(2) of the said Edict, His Lordship opined that:
? an action under the fundamental rights (Enforcement Procedure) Rules, 1979 is a peculiar action. It is a special action. The procedure is provided by the Rules, which were made pursuant to Section 42(3) of the 1979l Constitution. For the court to have jurisdiction, the procedure specifically provided for must be strictly followed. As I have already stated earlier on in this judgment, the Rules have the same force of law as the Constitution itself. What this means is that the Rules override any other enactment envisaged by Order 1 Rule 3(1) of the Rules.
Appellant in person, Y. Olarenwaju, Senior State Counsel.
(To be continued)
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