Introduction
It will not be out of place to conclude that in majority of the cases commenced against employees in Government (Federal, State or Local) Agencies, Ministries and Parastatals, the first point of call by the concerned officer is often recourse to the provisions of the Public Officers Protection Act, Cap P. 41, Laws of the Federation 2004 ("POPA or the Act") for possible defence based on the immunities provided in the Act.
Nigerian courts have over the years given their approval for the continued application and or reliance of public officers on the protection, particularly as it relates to limitation of cases commenced in Court against public officers, notwithstanding the belief by some scholars and writers that the Act has become anachronistic and deserves to be repealed or nullified.
However, the questions that remain largely unanswered as far as this statute is concerned and which this paper shall attempt to resolve are:
- Does the Public Officers Protection Act truly confer the blanket privileges and immunities it is professed to confer?
- Does the statute protect individuals who are not public officers but sued jointly with a public officer?
The first part of this paper will appraise the provisions of POPA vis-a-vis the nature of the protection provided by the Act. The second part will be dedicated to examining the exceptions created from the protections by courts over the years while the third part will answer the fundamental question on the extent of the protection offered by POPA which shall include the right of a private individual sued as co-defendant with a public officer to take benefit from the protection offered by the Act.
Nature and Scope of the protection offered by the Public Officer Protection Act, 2004
The POPA is one of the statutes recognized as an existing law under section 315 (4) (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) having been enacted on 2st September 1916. The Act was enacted to provide protection for public officers in respect of actions taken by them in the execution of public duties. It was also enacted in a bid to ensure that public officers are not distracted from their public functions and duties at the instance of many litigations pending against the officer.
The Act contains 2 sections. However, the most referenced of the two sections is section 2 which provides as follows:
2a. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance of execution or intended execution of any 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
Limitation of time
(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.
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be communicated within three months after the discharge of such person from prison.
Extent of the protection offered by POPA.
The courts have held consistently that for a person to enjoy the protection provided under POPA, such person must be a "public officer" and the act done must be "in pursuance or execution of a law, public duty or authority". This was clearly stated in Hassan v. Aliyu & Ors (2010) 17 NWLR (Pt.1223) 547. Furthermore, in NEPA v Olagunju, (2005) 3 NWLR (Pt. 913) 602, the court held that it is not every corporate body created by statute that is entitled to take benefit from the provisions of the Public Officers (Protection) Act, as the benefit is only applicable to public corporation specifically proved to be a public office under section 2(a) of the Act.
Consequently, a review of recent decisions of courts has shown that Nigeran courts have widened the net of the protection offered by POPA in some cases, while they have shrunk the net in others. These different approaches have resulted in discordant tones on the extent of the protection offered by the Act as it relates to the "persons" who are entitled to the protection as well as the circumstance(s) that will warrant the protection. Some of the recent developments in the interpretation of the Act are highlighted below.
Are there recognized exceptions to section 2(a) of POPA.
While the Act has been generally viewed as being draconian in nature, it is imperative to point out that the protection offered by the Act has both intrinsic derogations/exceptions provided in the Act itself as well as extrinsic/external derogations created by courts. Some of these exceptions are considered below:
1. Cases of Continuance of Damage or Injury.
In the interpretation of section 2 of POPA, the courts have held that where the act or omission of the public officer complained of is continuous in nature, the public officer cannot rely on the provisions of POPA to escape liability for such act or omission. The right to rely on POPA in cases of continuous damage will only crystallize where the affected individual fails to commence an action in Court within 3 months from the date of the cessation of the continuous act. This position was emphasized in RRBN v. MHWUN & Anor (2021) LPELR52745(CA).
However, it has been interpreted by the courts that the injury contemplated under section 2(a) of POPA is continuance of legal injury, and not merely continuance of the injurious effect of legal injury. This means that where a person is injured by a public officer, the right to file a case against such public officer arises on the date the injury was caused and not the date the pain or anguish suffered as a result of the injury stopped. The position was affirmed by the court in the case of Michael Obiefuna v. Alexander Okoye (1961) All NLR 357.
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