Podo v Gombe State Government and Others (CA/J/231/2014)[2016] NGCA 33 (20 May 2016) (CA/J/231/2014) [2016] NGCA 33 (19 May 2016);

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  • Podo v Gombe State Government and Others (CA/J/231/2014)[2016] NGCA 33 (20 May 2016) (CA/J/231/2014) [2016] NGCA 33 (19 May 2016);

Headnote and Holding:

The case concerned an appeal of the High Court’s judgment regarding ownership of a house and the relevance of legislation relating to public officers in so far as the case was concerned.

The court considered whether the case before the High Court was a land matter and whether legislation relating to public officers was applicable to the case.

The court held that the case was indeed a land matter and that legislation relating to public officers that bars claims against public officers was not applicable to the case.

The court examined legislation and previous judgments and concluded that the legislation relating to public officers that barred claims against public officers due to prescription was not applicable to the case in the High Court because it was a land matter. The court stated that issues relating to land recovery, breach of contract and claims for work done were some of the exceptions to the application of the statute that barred claims against public officers. The court stated that since the subject matter of the case before the High Court concerned a house, it meant that the matter related to the recovery or retention of land or property.

Consequently, the appeal succeeded, the ruling of the High Court set aside, and the matter was remitted to the High Court to be heard afresh.

In the Court of Appeal
Holden at Yola

 

Between

Appellant

SULE D. PODO

and

Respondent

1.    THE GOMBE STATE GOVERNTMENT
2.    THE ATTORNEY GENERAL, GOMBE STATE
3.    GOMBE STATE INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED    
4.    MR. DANJUMA MELE, THE MANAGING DIRECTOR, GOMBE STATE INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED
5.    MR. JULIUS MIYIM

 

JUDGMENT
(DELIVERED BY SAIDU TANKO HUSAINI, JCA)

This appeal brings to the fore the question of the relevance of the Public Officers (Protection) Law in an action commenced against certain persons or bodies in relation to a house or property being the subject-matter of claim.

The Appellant as the Plaintiff at the High Court of Gombe State caused a Writ of Summons (as amended) to issue at the said court against the respondents as defendants vide Suit. No. GM/136/2011 wherein he claimed all the reliefs at paragraph20 (a) – (e) of the amended Statement of claim to wit:-

“20. WHEREOF the plaintiff is aggrieved and claim against the defendants jointly and severally as follows:-
(a). A declaration that the purported sale/allocation of house number 44, J. I. Orji Housing Estate Gombe to the 5th defendant by the 3rd and 4th defendants on the basis of the owner occupier policy while the 5th defendant was not occupying the premises and was equally not a Civil Servant as against the plaintiff who has been the occupier of the said house number 44, Orji Housing Estate since the year 2000 and as at the time of the said sale/allocation by the Gombe State Government was a Civil Servant in the employment of the Gombe State Government is null and void and of no effect whatsoever.
(b). A DECLARATION that the plaintiff is legally entitled to the ownership of the said house number 44 J. I. Housing Estate on the basis of the owner occupier policy of the Gombe State Government being an occupier of the house at every material point in time.
(c). AN ORDER of this Honourable Court setting aside the one month quit notice dated the 12th October 2011 and issued by the 3rd defendant company AND the 7 days quit notice issued to the plaintiff by the 3rd defendant’s counsel dated 10th October 2011 for being irregular null and void and of no effect whatsoever.
(d). AN ORDER of perpetual injunction restraining the defendants, their agents, servants, privies and Assigns from disturbing the plaintiff’s peaceful and quiet enjoyment of the said house number 44 Orji Housing Estate.
(e). The cost of this action to be assessed by the Honourable Court”

After service of the originating papers on them, the 1st & 2nd defendants now respondents quickly challenged the competency of the suit by virtue of the Notice of Preliminary Objection dated the 8th November, 2013 and filed on the 11/11/2013. They (1st and 2nd respondents) had not filed any defence to the Suit as at the date the Preliminary Objection was filed, argued and a Ruling delivered. By the said Notice the 1st and 2nd respondents sought for an order that: 

“The Suit filed by the Plaintiff is statute barred and thereby divesting the  Honourable (sic) with the jurisdiction to entertain same.”

In urging the court to strike out the suit on account of want of jurisdiction, defendants/respondents listed six (6) grounds why the court below should uphold the objection. The grounds relied upon are reproduced hereunder, that is:

(1)    That house No. 44 J. I. Orji Housing Estate Gombe has been the property of the 1st Defendant.

(2)    That the 3rd Defendant whom(sic) was only empowered to managed (sic) house 44 J. I. Orji and all houses at Orji Housing Estate Gombe which is sole property of the 1st Defendant.

(3)    That House No. 44. J. I.  Orji Housing Estate and other houses in the Estate was reallocated and allocated to the 5th dependent (sic) and other persons by a Committee set up and approved  by the 1st Defendant, in January, 2011.

(4)    That House No. J. I Orji Estate and other Houses in the Estate were sold by (sic) owner occupier basis  by the 1st defendant to individuals holders (sic) in February, 2011 and these include the 5th Defendant.

(5)    That the suit filed by the Plaintiff against the 1st defendant actions was commenced outside the Statutory period of 3 months as prescribed by Section 2 (A) of the Public Officers (Protection) Law Cap 127, Laws of Bauchi State, as applicable to Gombe State

(6)    That  the action is barred from being heard by statute.
The Notice of Objection before the trial court had in support an affidavit of 5 paragraphs and the same accompanied with a written address of counsel.

Upon service of the Notice of objection on him, the appellant as Plaintiff filed a counter-affidavit and a written address in opposition hence the court below set the matter down for adoption of the respective written addresses filed by counsel.

In the ruling reserved and delivered on the 9th April, 2014 the Court upheld  the Preliminary Objection raised by the 1st and 2nd respondents, thereby striking out the suit in its entirety.

Against this Ruling and finding of the Court below the Plaintiff appealed to this Court on 6 Grounds by reason of the Notice of Appeal dated the 11th April, 2014 and filed on the 14th April, 2014, (record: pages 465 to 470). From the (six) Grounds of Appeal, the appellant distilled 2 (two) issues for determination at page 4 of the Appellant’s brief of argument thus:
(a)    . Whether or not the learned trial judge was right in holding that the plaintiff’s/Appellant’s case/action having regard to the claim of the Appellant before the lower Court is not a land matter (distilled from grounds one, two and four of the grounds of appeal).

(b)    . Whether or not section 2 (a) of the public officers (protection) law cap 127 (Laws of Bauchi State) is applicable to the instant case to limit the right of party to institute an action (as in this instant case). (Distilled from grounds five and six of the grounds of appeal)

Respondents, in the same manner, identified 2 (two) issues in their brief of argument at page 4 thus: 

(i)    Whether the learned trial Judge was right in held that the cause of action of the appellant’s suit was that against the administrative action of the 1st respondent and not a land dispute
(ii)    Whether the 1st & 2nd respondent can raise the provision of section 2 (a) of the public officer (protection) law 1 cap 127 (Laws of Bauchi State) as applicable to Gombe State as right of defence to the appellant’s claim.

After a careful consideration of the two sets of issues, I chose to adopt the all embracing and all encompassing issue formulated by the appellant in his brief in addressing this appeal. But before I do that I felt I should put on record the fact that neither the appellant in his brief of argument nor the respondents in their brief have raised or formulated any issue from Ground 3 of the Notice and Grounds of Appeal for the determination of Court. A Ground of Appeal for which no issue was formulated is deemed as abandoned and must necessarily be struck out. This court has held in Compact Disc Technologies Ltd & Ors. Vs. Musical Copyright of Nigeria GTD (MCSN) (2010) LPELR – 4006 (CA) that:
“It is indeed a trite and well settled doctrine that where no issue is raised in respect of a particular ground of appeal, the said ground of appeal is, at large and deemed abandoned,  thus it ought to be discountenanced and stuck out…” see further decision in Ndime V. Okocha (1992) 2 NWLR (Pt. 252) 129.
This is so because it is on the issues so formulated and not the Grounds that parties found their contention. See: Macaulay Vs NAL Merchant Bank (1990) 4 NWLR (Pt. 144) 283, 321; Chinwye V. Mesi (1989) 1 NWLR (Pt. 97) 254; IKweki V. Ebele (2005) 11 NWLR (Pt. 936) 397. There being no issue formulated out of Ground 3, same is hereby struck without much ado. I will now proceed to consider and address this appeal based on the 2 issues formulated by the appellant in his brief of argument as follows:

ISSUE 1
Whether or not the learned trial judge was right in holding that the plaintiff’s/Appellant’s case/action having regard to the claim of the Appellant before the lower Court is not a land matter (distilled from grounds one, two and four of the grounds of appeal).

ISSUE 2

Whether or not section 2 (a) of the public officers (protection) law cap 127 (Laws of Bauchi State) is applicable to the instant case to limit the right of party to institute an action (as in this instant case). (Distilled from grounds five and six of the grounds of appeal).

Submissions made by counsel relative to the 2 (two) issues reproduced above are contained in their respective briefs at pages 4 – 11 in the Appellant’s brief of argument, and at pages 1 – 4 in his reply brief on points of law. For the Respondents, the submissions are contained at pages 4 – 16 in the Respondents’ brief of argument. 

On issue No. 1 it was argued for appellant that the suit instituted by him at court below was a land case or land matter even though  the suit relates to  the property at No. 44 J. I. Orji Housing Estate at Gombe.

Counsel for the Appellant in his brief in his effort to drive home his point on the meaning and purport of the word “land” referred us to the definition as contained in Statute Books and the meaning or definition accorded to that word by textbook writers and submitted that the word or term “land” includes all that was attached to it and for which reason, his claim was/is a land matter. Drawing from the pleadings, counsel referred us to the indorsements contained in the Writ of Summons (as amended) particularly the indorsement at paragraph (b) which seeks a declaratory order that the Plaintiff is legally entitled to the ownership of the house at No. 44, as a relief or prayer which among others, makes his claim a land dispute or claim.

Learned appellant’s counsel argued further on this issue that the holding or ruling of the Court below stating the contrary, that is, that the suit was not a land matter or case was wrong in law and he urged this court to so hold. 

To the learned counsel for the appellant, the Public Officers Protection law was not applicable in a case for the recovery or retention of a house such as house No. 44, J. I. Orji Housing Estate, rather the Limitation Law of Bauchi State applicable to Gombe State applies to this case by reason of Sections 4 and 5 of that law. Even at that he said the appellant was still within the time limit set by that law. He urged us finally on this point to resolve issue No. 1 in favour of the appellant.

Learned Appellant counsel reiterated his stance in his submissions to issue No. 2 where he argued that the Public Officers Protection Law would not apply in the instant case to limit or narrow the period within which the appellant can file his action to 3 months from the date when the cause of action arose. Citing decisions in Attorney-General Rivers State Vs. Attorney-General Bayelsa State (2013) 3 NWLR (Pt. 1340) 123, 135; Okeke V. Baba (2000) 3 NWLR (Pt. 652) 644; Osun State Ent. Vs. D. N.Ltd (20007) Vol. 17 WRN 1, 199 at 476 – 477 it was argued that the provisions of the Public Officers Protection Law do not apply in actions of recovery of land, breaches of contract, claim for work and labour done; and in the instant case on appeal, being a land matter the law as it is argued, does not apply. 

On whom the law is designed to protect, and whom the law will not protect, he referred us to the decision on Kwara State Civil Service Commission V. Abiodun  (2009) All FWLR (pt. 493).

Learned Appellant’s counsel argued that in the instant case, the defendant are not protected by the law since they acted with malice, dictated by bad faith or improper motive when the 4th respondent issued the 5th respondent a post active allocation letter dated 17/01/2011 but to take effect on 20/4/2011 whereas the 5th respondent was neither entitled to nor qualified for the issuance of such letter  of allocation.

It is further argued that where a statute seeks to inhibit citizens ‘ right of access to court such statute should be interpreted strictly in favour of a guaranteed right of access to court hence as in  this case, the Officers Protection Law will not operate to deprive the appellant the right to seek redress at any point in time. He referred us to Kalongo V. Governor, Bayelsa State (2009) 7 NWLR (Pt. 1139) 17, 20. 

On the purpose for which the Government of Gombe State adopted the policy of owner-occupier, he said the policy was to vest ownership and title over Government properties or houses on civil servants living in those houses at the time Government introduced that policy. He argued further that the appellant was qualified as such civil servant to own House No. 44 J. I. Orji Estate on owner-occupier basis. He urged on the court to resolve issue No. 2 in favour of the appellant.

Learned counsel for the respondent arguing per contra on issue No. 1 took the view that this case on appeal is not a land matter or a dispute relating to land over  which ownership is in contest. He argued that the ownership of House No. 44. J. I. Orji Housing Estate was known and same is vested in the Government of Gombe State. What he said was the complaint of the appellant giving rise  to a cause of action, was the alleged wrongful exercise of power by the 1st respondent in allocating House No. 44 J. I. Orji Housing Estate to the 5th Respondent rather than to himself (the appellant). This exercise of power of allocation it is argued, is an administrative act which cannot translate to a land matter or dispute.

In response  to the submissions made under  issue No. 2; Learned counsel for respondents argued that the defence of limitation law was available to the Respondent as Public Officers who in the circumstances of this case were protected by the Public Officers (Protection) Law Cap 127, laws of Bauchi State as applicable to Gombe State hence the attempt by the Appellant to redefine his claim from one which relates to the questioning of the administrative action of the 1st respondent in reallocating  the house rented by the Appellant to that of a dispute as to ownership of land must fail. The Public Officers Protection Law, said the learned respondents’ counsel, was not meant to over-reach citizen’s right of access to court but same as a statute of limitation was founded on principles of equity and fair play such that a sleeping slumbering complainant would not just wake up at any time to remember that a defendant had wronged him and against whom he claimed for redress. A limitation statute, said the learned counsel was meant to take care of such situation as in the case of Mercantile Bank (Nig) Ltd Vs. Feteco Nigeria Ltd. (1989) 3 NWLR (Pt. 540) 143, 156-157 unless the act of the respondents was actuated by malice, fraud or concealment of action complained of, from the Appellant. Such is the case and the only ground the Limitation Law or Act would not apply. He cited the decision in Admin/Executor, Abacha V. Eke – Spith  (2009) 7 NWLR (Pt. 11 39) 39. By reference to the decision in Bello Nasir V. CSC 41 NSCGR 267, counsel further argued that the Public Officers Protection Law,  as a Statute of limitation of actions has direct relevance on the jurisdiction of the courts to entertain actions, such that no action can be commenced or entertained upon the expiry of the time limit set by Limitation law, as in this case, the Public Officers Protection Law. He argued that since the appellant failed to commence his action within 3 months set by the law, his action was statute barred and the defendants/respondents are entitled to this defence. He urged on the court to also resolve issue No. 2 in favour of the respondents. 

I have taken a careful study of the issues presented in this appeal case for determination as well as submissions made thereto by the respective counsel. I want to believe that issues 1 and 2 dovetail into the other and as such the two (2) can be taken and addressed together.

The court below in the concluding paragraphs of the ruling under reference 
held at page 451 of the record as follows:-
“From the above it follows that Plaintiff’s suit whatever its merit may in fact be, is caught by Section 2 (a) of the Public Officers (Protection) Law having filed more than three months after the act complained of. The Preliminary Objection is therefore upheld and the suit struck out for want of Jurisdiction.”

So, the Order of court striking out the suit filed by the Appellant was made pursuant to a law, that is to say the Public Officers (Protection) Law Cap 127 Laws of Bauchi State as applicable to Gombe State, on account of the suit being statute barred. 

By an action barred by statute or statute barred it simply means barred by a provision of the statute. It is usually as to time i.e. the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute. See:  Araka V. Ejeagwu (2000) 12 SC (Pt. 1)99; Daewoo Nigeria Ltd V. Project Masters Ltd (2010) LPELR – 4010 (CA).

When an action is statute barred, the Plaintiff losses his right of action even when he has a cause of action so far as the action was commenced after the expiration of the statutory period within which the action must be brought. It means in other words that action cannot properly be initiated or commenced after the expiration of the prescribed period. See: Hassan V. Aliya (2010) 17 NWLR (Pt. 1233 547 (SC).

This is the contention of the respondents and their reason for raising as it were, the Preliminary Objection based on the Public Officers (Protection) Law, Cap 127, laws of Bauchi State (Gombe State). 

This statute itself is meant to protect officers in the lawful discharge of their public duties and cannot therefore protect officers whose acts or neglect or default is outside the scope of their lawful duties. The law provides at Section 2 (a) as follows:-

“2. 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 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 provisions shall have effect:- 
(a)    The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:”

By this provision it is clear that before any person can enjoy the protection of this law, two conditions must be satisfied namely:

(1)    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 duties within the meaning of that law.
(2)    The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, Public duty or authority, or in respect of an alleged neglect or default in the execution of any such law, duty or authority.

Who then is a Public Officer? Are the respondents in this appeal case, particularly the 1st and 2nd respondents “Public Officers”? From a long line of decided cases including decisions in Ibrahim V. JSC, Kaduna State (1998) 14 NWLR (Pt. 584) at 1; Permanent Secretary Ministry of Works Vs Balogun (1975) 5 SC 57; Offoboche Vs. Ogoja Local Government (2001) 16 NWLR (Pt. 739) 458; Sule Vs. LEDB (1965) LLR 118; Federal Government of Nigeria Vs Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162, It is now settled that persons such as 1st and 2nd Respondents are public Officers. Thus, the words “Public Officer” not only refer to natural persons or person sued in their natural names, it also extend to cover Public Bodies, initial persons sued by their official names or title as it is the case with the 1st and 2nd respondents. 
In any case, the question of the status of the 1st and 2nd respondents is not the burning issue in this appeal. Parties herein seem to accept, no doubt the fact which is now settled, that the 1st and 2nd respondents are public officers within the meaning of the law. The controversy between the parties hereto is whether the respondents, taking the facts and circumstances of this case into consideration, can it be said that the Respondents and in particular the 1st and 2nd respondents are protected by the law, that is, the Public Officer Protection Law? 

This brings me to the second condition under which the public officers (Protection) law can avail any person. This condition, at the risk of repetition is to the effect that the act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, Public duty or authority or in respect of an alleged neglect or default in the execution of any such law duty or authority. It follows therefore that Section 2 (a) of the Public Officers Protection Law give full protection or cover to all public officers or persons engaged in the execution of public duties who at all material time acted within the confines of their public duty.  They cease to have that protection when they step outside the scope of their lawful duties. In that case the public officer can be sued outside the 3 months limitation period allowed by the statute. Where however the public officer acted within the colour of his office he can only loose protection of the Limitation Law if the Public officer was sued within 3 months of the act, neglect or default complained of. See: Nwankwere V. Adewonmi (1967) NMLR 45, at 49; Atiyaye V. Permanent Secretary, Ministry of Local Government Borno State (1990) 1 NWLR (Pt. 129); John Ekeogu V. Elizabeth Aliri (1990) NWLR (Pt. 126) 345; Udo Vs. Civil Service Commission, Akwa Ibom State (2006) LPELR – 11564 (CA).

It has been argued on behalf of the respondents that the suit commenced against them by the appellant was incompetent, the same not having been instituted within the time frame set by law under Section 2 (a) of the Public Officer Protection Law hence the respondents, in particular the 1st and 2nd respondents as Public Officers can raise as a defence, the statute of limitation. I think this submission is a restatement of the law. Where a party who has a right to sue and establish his right does so outside or after the period limited by statute such a suit or action is statute barred. See: NEPA Vs. Ajobe (2006) 7 SC Pt. 1) 23; Ejura V. Idris (2006) 4 NWLR (Pt. 971) 538. But for the submission made to the contrary by the party on the opposite side, I would without hesitation, come to the conclusion that the appellant in commencing his action as he did by way of Writ of Summons did so outside the 3 months within which the law allow him to exercise his right of action bearing in mind that by his averments in the Statement of claim, the cause of action or injury, he claimed he has suffered, arose sometimes in January or February, 2011. See paragraph 8 of the amended Statement of claim at page 204 of the record but the Writ or the amended Writ of Summons was issued sometime in October, 2011, a period well over 3 months. 

However the submission has also been made on behalf of the appellant to the effect that the Public Officers Protection law was not the applicable law or legislation considering the facts and circumstances surrounding this case on appeal. The applicable law as contended by  his counsel is Section 4 and 5 of Bauchi State Limitation Law (as applicable to Gombe State), as the relevant Limitation Law and even at that the appellant was still within time as at the date he filed his claim or action. But more significantly is the contention by the appellant that his case fall within the recognized exceptions and as such it was wrong of the court below to dismiss or strike out his case in lamine as it did. 

There is the need at this point in time to look at the pleadings, the Statement of claim (as amended), the averments thereto and the reliefs sought at the court below. This is even more so when the appellant in his brief of argument (including the reply brief) has contended that his claim relates to ownership of House No. 44 J. I. Orji Housing Estate Gombe. The court below had in its ruling held that the act complained of by the Appellant was the administrative acts or duties when respondents in the exercise of those duties reallocated House No. 44 J. I Orji Housing Estate to the 5th respondent. I should refer to paragraphs 4, 6, 7, 8, 9, 10, 16, 17, and 18 of the amended Statement of claim among others to clarify issues. In those various paragraphs the appellant averred thus:-

“4. The Plaintiff avers that he was allocated house number 44 Orji Housing Estate on the 1st June 2000. The letter of allocation is hereby pleaded and would be relied upon at the trial.
6.    The plaintiff avers that sometime in February 2011 the government of Gombe State announced its intention to sell – off some government owned houses on owner occupier basis, the Orji Housing Estate inclusive. The plaintiff hereby plead the copies of Jewel News Magazine of February 2011 edition and the speech of the then Executive Governor Alhaji Muhammed Danjuma Goje (Sarkin Yakin Gombe).
7.    The plaintiff avers that as a Civil Servant by then, and an occupier of the said house number 44, J. I. Orji Housing Estate he was eligible to benefit from the said owner occupier programme initiated by the Gombe State Government.
8.    The plaintiff avers that sometime in January 2011 the 3rd defendant sent to the plaintiff a letter of a purported re-allocation of the said house number 44 J. I. Orji Housing Estate which the plaintiff occupies. the photocopy of the letter is hereby pleaded and will  be relied upon at the trial.
9.    The plaintiff avers that thereafter, the Gombe State Government announced its intention to sell – off the houses in the Orji Housing Estate on owner occupier basis sometime in February 2011, while the plaintiff was still in the Gombe State civil service and occupation of the said house number 44 J. I. Orji Housing Estate, Bauchi Road, Gombe.

10.    The plaintiff avers that thereafter he wrote a letter dated 20th June 2011 to His Excellency the Executive Governor Gombe State, Alhaji Ibrahim Hassan Dankwambo (Talban Gombe), and another one to the Chief of Staff, Gombe State Government House dated 4th September 2011, and in both letters pleaded for mercy in the matter of the said house number 44 J. I. Orji Housing Estate which the plaintiff occupies. The copies of the said letters are hereby pleaded and would be relied upon at the trial.
16.    The plaintiff avers that the 3rd and 4th defendants have no discretion whatsoever under  the law to act contrary to the public  policy of the Gombe State Government.
17.    The plaintiff further avers that the 5th defendant has never ever been a Civil Servant and as at the time of the initiated owner occupier policy, the 5th defendant has never been in the service of Gombe State Government and consequently, the 5th defendant was not entitled to enjoy the policy of owner occupier as against the existing prior interest of the plaintiff.
18.    The plaintiff avers that the 4th defendant without any just cause re-allocated the plaintiff’s premises to the 5th defendant out of sheer prejudice and nepotism.”

And at paragraph 20 (b) of the amended statement, the Appellant as Plaintiff, claims thus:- 
“20. WHEREOF the plaintiff is aggrieved and claim against the defendants jointly and severally as follows:-
 (b). A DECLARATION that the plaintiff is legally entitled to the ownership of the said house number 44 J. I. Housing Estate on the basis of the owner occupier policy of the Gombe State Government being an occupier of the house at every material point in time.”

It is true or correct to say that the respondents in the exercise of their powers, were carrying out administrative duties or functions but I cannot say that this exercise of administrative duties or functions by the Respondents was done in vacuum but by reference to House at No. 44 J. I. Orji Estate, Gombe, the house or property to which the Appellant claims he is  entitled to as the owner on the basis of “owner-occupier” policy of Gombe State Government. It is not correct therefore to hold as done at the court below in its ruling that Plaintiffs’ case does not relate to land matter. After all, “land”  as defined at Section 18 (1) of the Interpretation Act, Cap 123 includes anything and everything attached to it. It includes “any building and any other thing attached to earth or permanently fastened to anything so attached but does not include minerals. In the light of the definition given above, House No. 44 at J. I Orji Housing Estate and issues  surrounding it all relate to land and as a consequence, Section 2 (a) of the Public Officers (Protection) Law ceazes to apply in a case like this which seek as it were, the recovery or retention of land or property (House No. 44 J. I. Orji Housing Estate, Gombe). This is an exceptional situation or circumstance and the courts of the land have recognized these exceptional circumstances and have given effect to it.

In Wurro Boga Nig. Ltd Vs, Minister of Federal Capital territory (2009) LPELR – 20032 (CA) it was held that provisions of the Public Officers Protection Act would not apply to cases or matters bordering on recovery of land, breach of contract or claims for work done. See further decisions in Energy Marine AND Industrial Ltd Vs. Minister of Federal Capital Territory (2010) LPER – 19774 (CA); NPA Vs. Constuzoni General Fasura Coge far SPA & Anor (1994) 1 All NLR (Pt. 2) 463 or (1974) All NLR 945, 957; Federal Government of Nigeria Vs. Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162; Osun State Government Vs. Danlami Nigeria Ltd (2007) All FWLR (Pt. 305) 436, 402 or (2007) 9 NWLR (Pt. 1038) 66, 83 – 84 Okeke Vs. Baba (2000) 3 NWLR (Pt. 650) 653. 

On the whole therefore I find this appeal meritorious and it succeeds and same is allowed as issues 1 and 2 are resolved in favour of the appellant and against the respondents. In effect the Ruling of the High Court of Gombe State delivered on the 9th April, 2014 in Suit No. GM/136/2011 is hereby set aside and in its place is entered this Judgment remitting Suit No.GM/136/2011 between same parties to the Chief Judge of the High Court of Gombe State who shall reassign the case to a Judge other than Hon. Justice Saadu Mohammed, who shall hear the case on the merits. 
Ordered accordingly.

JUMMAI HANNATU SANKEY, J.C.A.
My learned brother, Husaini, JCA, who prepared the lead Judgment, has fittingly addressed the issues arising for determination. 
Hence, in the light of the detailed reasoning and conclusion reached therein, I have also come to the unavoidable conclusion that the instant Appeal has merit and same is allowed. I therefore endorse the orders made in the lead Judgment.
 

BIOBELE ABRAHAM GEORGEWILL, JCA: 
I have been afforded in advance a draft copy of the lead judgment just delivered by my learned brother, SAIDU TANKO HUSAINI, JCA; and I am in complete agreement with the sound reasoning and inescapable conclusions reached therein. I only wish to say a word or two as my contribution to the lucid lead judgment.

                       The issue whether or not the Appellant’s claim against the Respondents, particularly the 1st and 2nd Respondents was statute bared is an issue touching on the jurisdiction of the court below and being an issue of jurisdiction, a very fundamental one and constituting a critical element of the process of administration of justice, must be taken up timeously once raised and promptly resolved as perfectly done by the court below. 

                       However,  it is one thing for a court to take up an issue of jurisdiction timeosuly once raised against the competence of a suit and quite an entirely different thing  how the issue of jurisdiction was resolved by the court. The resolution may be correct or it may be wrong depending on the facts and circumstances of the case coupled with the relevant and applicable law. 

                       In the instant appeal, the Appellant had vehemently contended that the resolution by the court below of the issue of jurisdiction as raised by the Respondents was wrong and perverse and ought to be set aside. On the contrary, the Respondents had contended vehemently too that the resolution by court below of the issue of jurisdiction raised by them against the competence of the Appellant’s suit was correct and sound and ought to be affirmed. The lead judgment has  resolved, and I have agreed too, that the resolution of the issue of jurisdiction by the court below was wrong, in that contrary to the decision of the court below the Appellant’s claim, which in essence is a claim relating to recovery of land, falls squarely within one of the exceptions to the application of limitation law, including the Public Officers (Protection) Law of Bauchi State as applicable in Gombe State. 

                       In law, the protection afforded “public officers” by the succinct provisions of Section 2 (a) of the Public Officers (Protection) Law of Bauchi State as applicable to Gombe State, as well  as other statutes to similar effect, is not absolute as there are some well defined and accepted exceptions to the operation of limitation statutes and which when properly invoked would legitimately stop the limitation period prescribed by the limitation law from running against a Plaintiff. See AG. Rivers State V. AG. Bayelsa State (2013) 3 NWLR (Pt. 1340) 123 @ p. 148.
My lords, without attempting to set down any exhaustive list of all situations and circumstances that could stop the three months limitation period prescribed in Section 2 (a) of the Public Officers (Protection) Law, either from running or completely render it devoid of any legal consequences against the suit of a Plaintiff are the following, namely; (a) Cases of continuance of damage or injury; (b) A public officer acting outside the colour of his statutory or constitutional duty; (c) Cases of recovery of land; (d) Breaches of contract; (e) Claims for work done; ( f) Lack of good faith; (g) Revival of cause of action by admission of liability during negotiation and (h) Application for enforcement of fundamental rights. See Order 3 of the Fundamental Rights (Enforcement Procedure ) Rules 2009. See also El – Rufai V. Senate of the National Asssembly & Ors (2014) LPELR 423115(CA); AG. Rivers State V. AG. Bayelsa State (2013) 3 NWLR (Pt. 1340) 123 @ p. 148. See also Egbe V. Alhaji (1990) 1 NWLR (Pt. 127) 546; Egbe V. Belgore (2004) 8 NWLR (Pt. 875)336; Nwankwere V. Adewunmi (1966) SCNLR 66; Offoboche V. Ogoja LG. (2001) 16 NWLR (Pt. 739) 458; Lagos City Council V. Ogunbiyi (1969) 1 All NLR 197; Ibeto Cement Co.Ltd. V. AG. Federation (2008) 1 NWLR (Pt. 1069470 @ pp. 499 – 501; Hassan V. Akilu (2010) 17  NWLR (Pt. 1223) 547 @ p. 622; Egboigbe V. NNPC (1994) 5 NWLR (Pt. 347) 649 @ p. 659. See also Lahan V. AG. Western Region of Nigeria (1976) WNLR 39; Nwadiaro V. Shell PDC (1990) 5 NWLR (Pt. 150) 322.

                        It is in the light of the above and the fuller reasons in the lead judgment that I too hold that the appeal has merit and ought to be allowed. I too allow the appeal and the ruling of the court below is set aside. I shall abide by the consequential orders made in the lead judgment.?

Counsel

1.    I. Yohanna (with B.R. Esthorn and M. N. Wayeth), for the Appellant.
2.    Musa Saidu Esq, Director Civil Litigation, Ministry of Justice Gombe State for the Respondents.