Sani V. President, Frn & Anor (2020)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
At the Federal High Court, Kano Judicial Division, the appellant, (Claimant, as he then was), commenced action, by Originating Summons, against the respondents herein. What prompted this suit was the action of the respondents which authorised the Swiss Authorities to freeze all the bank accounts held in that jurisdiction by late General Sani Abacha, his children, his servants and agents or any other third party who participated in the misappropriation of public funds.
Upon hearing the argument in the originating summons, the trial Court dismissed the plaintiff’s claims. The appeal to the Court of Appeal, Kaduna Division, having been dismissed, the plaintiff appealed to this Court. He entreated the Court to determine two issues couched thus:
- Whether the appellant’s action is caught by the Public Officer Protection Act having regard to the decision of the Court in Ibrahim v Judicial Service Commission, Kaduna State (1998) 14 NWLR (pt 584) 32 and Nwankwere v Adewumi (1966) All NLR 119?
- Whether having regard to the parties, the subject matter and reliefs sought in Sulgrave Holdings INC and Ors v F.G.N and Ors. (FHC/ABJ/CS/34/7/2001) the suit which gave rise to the instant appeal is caught by estoppel per res Judicata (sic)?
The Respondent, on the other hand, formulated the following issues, asking the Court to answer these precise questions:
- Whether the appellant’s case in its entirety is not caught by Public Officers’ Protection Act. Cap 379, Laws of Federation of Nigeria?
- Whether the appellant’s case is not caught up by the principle of estoppel per res Judicata (sic) by reason of the judgment in suit no. FHC/ABJ/CS/347/2003 or suit no CA/A/221/2003 Sulgrave Holdings INC and Ors v F.G.N and Ors (FHC/ABJ/CS/34/7/2001 as well as Suit no. FHC/KD/CS/281/2003 AIi Abacha v AG Federation?
My Lords, the respondents’ issues are more precise and more articulate apropos the complaints in the Notice and Grounds of Appeal. I therefore adopt them as the issues for the determination of this appeal.
Argument of Counsel
- Whether the appellant’s case in its entirety is not caught by Public Officers’ Protection Act, Cap 379, Laws of Federation of Nigeria?
At the hearing of this appeal on November 12, 2019, learned counsel for the appellant, on the first issue, submitted that the Public Officers’ Protection Act requires that all suits against public officers must be filed within three months from the date of accrual of the cause of action otherwise the action would be statue – barred.
He explained that the statute of limitation removes the right of action. He pointed out that the respondent, requesting the freezing of the appellants’ accounts, relied on the Banks (Freezing of Accounts) Act of 31st December, an enactment that no longer existed,Ibrahim v Judicial Service Commission Kaduna State (1998) 14 NWLR (pt. 584) 32.
He contended that the respondent acted outside the colour of his office without a semblance of legal justification. He noted that the provision of Section 2 (2) of the Public Officers’ Protection Act operates subject to certain exceptions, qualifications or limitations imbedded therein. Thus, this section protects a public officer in respect of any action, prosecution or proceedings. Thus, according to him, makes them enjoy the full protection under Section 2 (2) of the Act.
He prayed Nwankwere v Adewumi (1966) All NLR 119 in aid of his submission that the respondent did not act in good faith or within the colour of his office when he relied upon a non- existing law. In his view, the lower Court misapplied the decisions in Obiefuna v Okoye (1961) 1 SCNLR (pt.549) (sic) and Egbe v Adefarasin and Anor (1985) LPELR- 1031 (SC).
He also submitted that the lower Court did not give credence to the decision inlbrahim v Judicial Service Commission, Kaduna State (1998) 14 NWLR (pt 584) 32. He urged the Court to resolve this issue in favour of the appellant.
On his part, learned counsel for the respondent, pointed out that the appellant’s case, before the lower Courts was caught by the provisions of the Public Officers’ Protection Act in that it was not filed within three months of the act complained about. He contended the appellant’s argument about the non-existence of the Banks (Freezing Account) Act was outside the scope of the Public Officers’ Protection Act. He maintained that the appellant erroneously imported the words, “act,” into the provisions of this Act and for this said reason, his argument ought to be discountenanced.
He drew attention to the meaning of the words “act”; “Act” and “Law”, according to the Black’s Law Dictionary (7th edition) and the Mutual Assistance in criminal matters within the Commonwealth (Enactment and Enforcement) Act Cap M 24, Laws of Federation of Nigeria, 2004. He maintained that the words “any law” in Section 2 (2) (a) of POPA is not limited to the Bank (Freezing of Accounts) Act of 1984.
The words, in his submission, also included mutual assistance in criminal matters. The appellant’s acts fall within the execution of “Any Law.”
He explained that the respondent’s act, which led to this case, arose as a result of public duty. In his view, Section 5 of the 1999 Constitution makes it a duty for the President to act in the best interest of the overall wellbeing of the country, even without any law in existence, to allow for the recovery of stolen money stashed away in foreign accounts by past public officers. He maintained that the lack of legal justification is no reason to deny the respondents the protection given by the Act because he acted in accordance to Section 5 of the Constitution.
He pointed out that the appellant’s argument that the respondent acted outside the colour of their office can be justified due to the fact that there is no law which forbids the respondents from requesting the Swiss authorities to freeze the defendant’s accounts and the Section 5 of the Constitution covers the actions of the respondent.
RESOLUTION OF THE ISSUE
As indicated above, the appellant’s counsel cited Ibrahim v Judicial Service Commission, Kaduna State (supra) and Nwankwere v Adewumi (supra) as authorities for his contention that the respondent was in breach of the POPA: an enactment which requires that suits against pubic officer must be filed within three months from the date of the accrual of the cause of action otherwise the action would be statute barred.
By way of prefatory remarks, it is important to state the essence and rationale behind the enactment of POPA. The said enactment was promulgated to provide for the protection against actions of public officers acting in the execution of public duties. It protects public officers who have acted pursuant to the duties of their offices from being harassed with litigation, Fajimolu v. University of Ilorin (2007) 2 NWLR (pt 1017) 74.
The limitation provision therein, like every other limitation provision in all Limitation statutes, owes its evolution to considerations founded on public policy. First, there is the ancient principle which is now famous for its ubiquity, It is expressed in Latin: interest rei publicae ut sit finis litium – it is in the public interest that there should be an end to litigation. In addition to this requirement of public policy, the Law has also taken the view that a stale claim may not only be unfair to a defendant, it may actually wreak cruelty on him.
The reason is simple: with the vagaries of events; the concatenation of unavoidable circumstances and the sheer passage of time, such a defendant stands the chance of losing material pieces of evidence which hitherto formed part of the formidable arsenal defence of his Limitation statutes, thus, evolved to vouchsafe to such a defendant a statutory defence to such a stale action. That is why such an action is said to be statute-barred! This formulation has an illustrious judicial ancestry, Aremo ll v Adekanye (2004)42 WRN 1; Ogboru v SPDC Co Nig Ltd (2005) 26 WRN 128. It is important however to note that what the statute bars is the action and not the cause of action. This important distinction is not often understood. Whereas the cause of action as shown above refers to the facts or combination of facts which the plaintiff must adduce to be entitled to any relief, the action itself is the medium which affords him the opportunity to ventilate his bundle of facts, Patkun Industries Ltd v Niger Shoes Ltd  5 NWLR (pt. 93) 138. Put differently, a plaintiff’s right of action eventuates from the existence of a cause of action, Ikine v Edjerode  12 KLR (pt 131) 3711, 3724.
In the context of this distinction, what emerges is that whereas the plaintiff’s cause of action remains intact, although in a vacuous and bare form, a statute of limitation denudes him (the plaintiff) of his action, that is, his right of enforcement; the right to judicial relief, Egbe v Adefarasin  1 NWLR (pt 47) 1; Eboigbe v NNPC (1994) NWLR (pt. 347) 549. To be able therefore to enjoy the dividends which recourse to the judicial process affords, such a plaintiff must commence his action within the period stipulated by statute.
In other words, it is a mandatory requirement, Sidi Ali v Takwa (2004) 1 WRN 180. Thus, legal proceedings cannot be validly instituted after the expiration of the prescribed period, Sanda v Kukawa Local Government  2 NWLR (pt 174) 374.
Such is the fate of the appellant’s action. His action being statute-barred, Aremo ll v Adekanye (2004) 42 WRN 1; Ogboru v SPDC Co., Nig Ltd (2005) 26 WRN 128, he cannot now claim any right to judicial relief, Egbe v Adefarasin (supra); Eboigbe v NNPC (supra).
Now, the protection under the POPA has its own exception. Thus, a criminal action, outside the public officer’s duties, will not fall within the scope of Act, Attorney – General of Rivers State and Anor (pt.149), paras F-C. In Kwara State Pilgrims Welfare Board v Jimoh Baba (2018) LPELR-43912 (SC), it was held pointedly that:
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 service. Doing otherwise, would amount to incentivizing dishonesty in service by encouraging potential violators of public trust to benefit and reap the evil fruits of their dishonest behavior at the expense of national good and public morality.
Scholars are also unanimous on this issue that POPA will not apply when the public officer engages in act of criminality, see for example, I. Peters, “Public Officers, Protection Act/Law cannot be Invoked to protect Fraudulent Public Officials. DNL Legal & Style, retrieved from https://dnlleqalandstyle.com/2018/public-officers-protection-act-law-cannot-be-invoked-to-protect-fraudulent-public-officials (assessed 02, 2019); A. Odusote, The Nigerian Public Officers Protection Act: An Anachronistic Legislation Yearning for reform,225 – 240.
The learned counsel for the appellant had cited Abah v Belgore  8 NWLR (pt. 875) 336 and Nwankwere v Adewumi (supra) as authorities for his proposition that the respondent was acting outside his colour of his office or statutory duty by relying solely on the non-existent law, Banks (Freezing of Accounts) Act of 1984.
With due respect, this proposition is clearly outlandish. First, I am compelled to repeat this Court’s view that the law will not apply when the public officer engages in acts of criminality and money looting. In Kwara State Pilgrims Welfare Board v Jimoh Baba (2018) LPELR-43912 (SC), this Court observed that:
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 service. Doing otherwise, would amount to incentivizing dishonesty in service by encouraging potential violators of public trust to benefit and reap the evil fruits of their dishonest behavior at the expense of national good and public morality.
I adopt these views as part of my reasoning in the resolution of this issue. It is also important to state that, where a public officer in the discharge of his statutory duties, reasonably, believes that he is so empowered to act in the interest of the overall wellbeing of the country and goes ahead to act, accordingly, even where there is no existing law to back up his action, the POPA will protect him.
However, where he acted for personal gain which resulted to criminality, his action will fall under the expectations of POPA as indicated above. Thus, the contention that the respondent relied upon a non-existent law, will no longer matter as long as there is a present principle/law which deals with the same issue.
I find no merit in the misleading submissions of the counsel for the appellant. I have no hesitation in resolving this issue against the appellant and in favour of the respondent.
Whether having regard to the parties, the subject matter and reliefs sought in Sulgrave Holdings INC and Ors v F.G.N and Ors. FHC/ABJ/CS/34/7/2001 the suit which gave rise to the instant appeal is caught by estoppel per res Judicata (sic)?
On this issue, learned Counsel for the appellant referred to the conditions that must exist before the doctrine of estoppel per rem Judicatam can be applied:
– The parties or their privies are the same in both the previous and present proceedings.
– The Claim or the issue in dispute in both actions is the same.
– The res or the subject matter of the litigation in the two cases are the same.
– The decision relied upon to support the plea of estoppel per rem judicatam is valid subsisting or final
– The Court gave the previous decision upon to sustain the plea is a Court of competent jurisdiction. (see Aborisade v Abolarin  10 NWLR (pt 671) 41, 51-52.
He submitted that the decision of the lower Court is perverse having regard to the facts and circumstances of this case. He also pointed out that the subject matter in the case of Sulgrave Holdings INC and Ors v F.G.N and Ors. (Suit No. FHC/ABJ/CS/34/7/2001) is not the same subject matter of this current appeal.
He further contended that the burden of proof is on the respondent to prove that the appellant was an economic beneficiary of Braven Holden. He equally argued that the lower Court was wrong by agreeing with the trial Court without an enough evidence by the respondent.
He cited Section 135 and 136 of the Evidence Act; Itauma v Akpe-Ime (2000) FWLR (pt.16) 2809; Braimah v Abasi  12 NWLR (pt.581) 167; Onwumechili v Akintemi  NWLR (pt.13) 504; Adene v Dantumbu  4 NWLR (pt.88) 309 and Ekuma v Silver Eagle Shipping Agencies  4 NWLR (pt.65) 472.
On his part, the learned counsel for the respondent contented that the appellant’s argument on the conditions that have to exist before the doctrine of estoppel per rem Judicatam can avail you and they are:
– The parties or their privies are the same in both the previous and present proceedings;
– The Claim or the issue in dispute in both actions is the same;
– the res or the subject matter of the litigation in the two cases is the same;
– The decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting or final
– The Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
He submitted that the lower Court rightly, upheld the decision of the trial Court by relying on paragraph 63 (exhibit 1 attached to the further affidavit) as it forms part of the evidence submitted by the parties, I.F.A. INT’L Ltd v L.M.B. PLC (2005) 9 NWLR (pt. 930) 247, 291. He further explained that paragraph 63 of Exhibit 1 shows that the appellant in the suit was caught by the principle of res Judicata. He maintained that FHC/KD/28/2003 and FHC/ABJ/CS/247/2003 have identical subject matters.
He pointed out that the Court has the power to decide if a subject matter is same or not. Adone v Ikebudu  14 NWLR (pt.733) 385. He further submitted that the issue of the absence of evidence to prove that the appellant was an economic beneficiary to Braven company was not deposed to by the appellant. Accordingly, the trial Court could not rely on it.
He submitted that the law allows him to rely on evidence which is averse to his case and same is admissible against him, Bello v Eweka  SC 101, 118.
He argued that the act of the appellant attaching Exhibit 1 in his further affidavit in support of Originating Summons means that the appellant had testified in favour of the respondent and the respondent can take advantage of it to strengthen his case. In his view, it means that the lower Courts were right by relying on it, Onisaodu v Elewuju  12 NWLR (pt 998) 517, 529 – 530.
He urged the Court to discountenance the contention of the appellant that the lower Court erred in law in holding that Sulgrave Holdings INC and Ors v F.G.N and Ors. FHC/ABJ/CS/34/7/2001 constituted res Judicata.
RESOLUTION OF THE ISSUE
The meaning of the plea of res judicata is fairly well-settled. For example, in D.T.T ENT (Nig) Co. Ltd v Busari  8 NWLR (pt.1249) 387, this Court explained that:
The doctrine of res judicata means that once a dispute or matter has been finally judicially pronounced upon or determined by a Court of competent jurisdiction, neither the parties thereto nor their privies can subsequently be allowed to re-litigate the matter because a judicial determination properly handed down is conclusive until reversed by an appellate Court. The veracity of that decision or determination is also not open to a challenge nor it be contradicted.
The doctrine is grounded on public policy which stipulates that there must be an end to litigation as captured in the Latin maxim ‘interest rei publicae ut sit finis litium.’ The plea of res judicata is only employed by a plaintiff as a sword as the legal effect to the effect that the Court before which it has been raised has no jurisdiction to entertain the matter.
As indicated above, the counsel cited Aborisade v Abolarin (2000) 10 NWLR (pt 671) 41, 51-52 as an authority to confirm if the conditions of estoppel per rem judicatam exist before it an be applied.
Such cases like Ogbolosingha and Anor v B.S.I.E.C and Ors (2015) Vol 245 LRCN 140; D.T.T ENT (NIG) Co. Ltd v Busari (2011) 8 NWLR (pt.1249) 387; Bwacha v Ikenya (2011) 3 NWLR (pt 1235) 610 confirm the proposition that the conditions listed below must exist before the doctrine of res Judicata can apply;
– The parties or their privies are the same in both the previous and present proceeding;
– The claim or the issue in dispute in both actions is the same.
– The res or the subject matter of the litigation in the two cases is the same;
– The decision relied upon to support the plea of estoppel per rem judicatam is valid, subsisting or final;
– The Court that gave the previous decision, upon which to sustain the plea, is a Court of competent jurisdiction.
However, with respect to the learned appellant’s counsel point, I find the above submission to be erroneous. It is not true that the lower Court erred in law by upholding the decision of the trial Court relying on paragraph 63 of Exhibit 1 as it forms part of the evidence submitted to it by parties and it forms part of the record of proceedings, I.F.A. INT’L Ltd v L.M.B. Plc  9 NWLR (pt. 930) 247, 291.
According to the record of appeal, for this
instant case, paragraph 63 of Exhibit 1 attached to the further affidavit in support of the originating summons constitutes the pleadings and the proceedings in this instant appeal since evidence is not allowed to be led in an action instituted by Originating Summons which the Court is not bound to call parties to address it since the documents were in Court before argument were taken.
The Court therefore has the power to look at all the documents in its file.Winlyn Ltd v N.A.C.B and FIN Co. Ltd (2000) 8 NWLR (pt. 670) 594, 600. The Court has the power to study the proceedings and the judgment in the previous action, even if the subject matter and parties are not the same. Adone v Ikebudu  14 NWLR (pt.733) 385.
As seen in the records, the subject matter of the suits FHC/KD/2812003 and FHC/ABJ/CS/247/2003 or CA/A/221/2003 and the subject matter in this suit as contained in pages 4-7 are identical. The reliefs claimed are not only similar but also identical. In view of the above reasoning, it is fair to say that I find no merit in the misguided submission of the appellant’s counsel. I hereby resolve the above issue against the appellant.
Even then, as learned counsel for the appellant eloquently pointed out in paragraph 6.5 in the subject matter of this case and SULGRAVE HOLDINGS case are not the same hence principle of res judicata cannot apply. This submission is misplaced because once the end result of the two cases is the same, even if the reliefs are different, res judicata will apply.
In Ministry for Works v Tomas (Nig) Ltd (2002) 2 NWLR (pt 752) 740, 778-779, the Court held that:
… the wordings of the two reliefs may be different but the substance and the end results are same. So, I have no hesitations in holding that the subject matter of two suits is the same.
Thus, I adopt the above principle in Ministry for Works v Tomas (Nig) Ltd (supra). I have no hesitations than to hold that the subject matter of FHC/KD/28/2003 and FHC/ABJ/CS/247/2003 or CA/A/221/2003 and the subject matter in this suit, as contained on pages 4-7, are the same.
The learned counsel pointed out that if the evidence given by the appellant, vide Exhibit 1, is at variance with the pleading, the plaintiff/appellant’s claim will fail, Okhuarobo v Aigbe (2002) 3 SCNJ 109, 106.
As counsel had pointed out, all affidavits, including the appellant’s further affidavit in support of Originating Summons, to which Exhibits 1 was attached, constitute pleading on the originating summons. In effect, by attaching Exhibit 1 to the further affidavit in support of Originating Summons, the appellant had testified in favour of the respondent. The respondents could therefore take advantage of Exhibit 1 to strengthen their case as they did and the decision of the trial Court was right by relying same.
According, I shall be loath to interfere with them, Onisaodu v Elewuju  12 NWLR (pt 998) 517, 529; Ojiebe v Okwaranya  2 SCNLR 358; N.B.N. v. T.A Ltd  8 NWLR (pt. 468) 511; Onwumechili v Akintemi  3 NWLR (pt. 13) 504; Adene v Dantumbu  4 NWLR (pt 88) 309.
This must be so for this is an appeal on concurrent findings of two lower Courts. On several occasions, this Court had cautioned that, unless they are supported by exemplary evidence, and have occasioned miscarriage of justice, such concurrence should not be disturbed. Sobakin v State  5 SC 75 Shurumo v State  19 NWLR (pt 1226) 73.
The contention of the appellant that the lower Court erred in law to have held that the case of Sulgrave Holdings Inc and Ors v F.G.N and Ors (supra) constituted res judicata in this suit is therefore grossly misconceived. I find the above submission to be erroneous. With no hesitation, I discountenance it.
I agree with the learned respondent’s counsel that Onwumechili v Akintemi (supra); Adene v Dantumbu (supra); Ekuma v Silver Eagle Shipping Agencies (supra):
… are not apposite because there was no breach of fair hearing by the decision of the trial Court and the lower Court as the trial Court had the unfettered right to rely on all the documents tendered by a party in the case and that was what was done in this matter.
Thus, from the above view, it is all right to state that the lower Court was right to have held that Sulgrave’s case constituted estoppel per rem judicatam to this instant appeal.
In all, from the eloquent submissions of the respondent’s counsel, submissions anchored on the admitted evidence, I have no hesitation in affirming the concurrent decisions of the lower Courts. Accordingly, I hereby enter an order dismissing this appeal.
I further affirm the concurrent findings and decisions of the lower Courts. Appeal dismissed.