AN APPRAISAL OF LIMITATION OF ACTION UNDER PUBLIC OFFICER PROTECTION ACT

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ABSTRACT

This paper an appraisal of the limitations of the public Officer Protection Act and the rationale for the enactment of the legislation, the policy and constitutionality, are all discussed for a better understanding of the need for the continued existence or repeal of the legislation. The jurisprudence evolving from the courts’ interpretation of the legislation is critically appraised and analyzed. The judgments reveal the injustice and hardship that the operation of the Public Officer Protection Act and Laws had occasioned. Moreover, the broad interpretation of who is a public officer beyond natural persons to artificial public institutions has elasticized the scope of the Act and Law beyond its original legislative intendment. The courts’ broad interpretation of acts done in pursuance of public duty and distinction between continuance of damage or injury and continuing effect of damage and injury goes against the principles of interpretation that postulates that limitation statutes ought to be construed restrictively against the one who seeks to have benefit of such limitation. The paper recommends the repeal of the Public Officer Protection Act before or immediately after the centennial observation of its anniversary on 21st September 2016.

CHAPTER ONE

GENERAL INTRODUCTION

1.1. Background of Study

It is axiomatic that the law will have little relevance if it fails to balance the interests of disputing parties and achieve justice towards all. To this end, the legislators1 have been saddled with the responsibility of making laws in abstract; specifically, the National Assembly is conferred with the powers to make laws for the peace, order and good governance of the federation or any part thereof2, while on the other hand, it is the primary duty of the court to apply the laws to solve problems, placing reliance on the statutory powers3 reposed in it, in the independence of its discretion; the court must therefore apply the law in such a way as to ensure justice.

A trace of the application of the Limitation Laws/Statutes in Nigeria so far will reveal that the practice although profitable, has more often occasioned injustice to claimants with genuine causes of action who have literally been shut out without any remedy or solution proffered by the courts.4 Much as it is desirable that a party who claims to have suffered legal injury should assert his right timeously, it is imperative for the legislature and judiciary to ensure that the end of justice is not defeated by operation of statutes, judicial principles or public policy originally aimed at injecting efficiency into the judicial system in the first place. The danger inherent in the laws limiting action is further pronounced in the fact that, a statute of limitation does not require good faith to avail a defendant of the special defence of limitation of action nor does it require malice to deprive him of the defence; once it can be established that the claimant in question has come out of the time provided, it automatically and totally extinguishes the right of action

Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Asein, J. O. 2005. Introduction to Nigerian Legal System. Nigeria: Ababa Press Ltd. 2nd p.32

Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Especially under the Public Officers Protection Act which provide for a period of 3 months within which to institute an action, the existence of which Act/law is unknown to many litigants and prospective litigant.

however ingenious the claim.5 Therefore, application of law or public policy whose overall assessment and evaluation defiles good faith, lacks curative value and occasions miscarriage of justice must of necessity be re-visited. Among other defects, it is noted that, the applicability of limitation law often discourages settlement though the running out of time should not ordinarily constitute a barrier towards a meaningful exploration of settlement outside court proceedings (otherwise referred to as Alternative Dispute Resolution (ADR) techniques).

This work is an attempt to provide an appraisal of limitation laws to civil actions under the officer protection act in Nigeria vis-a-vis the extant hardship arising from the lack of reform within the Nigeria Legal system and to suggest a remedy which does not seek to totally eradicate its application but targeted at introducing a balance of interest on both6 sides.

1.2. Statement of the Problem

The Public Officer Protection Act has its origin rooted in Nigeria’s colonial history when it was enacted as an Ordinance with the sole objective of protecting public officials from legal action for their tortious act done in the course of the official duty, after a limitation period of three months. However, the protection of the Act at the Federal and Laws at the State level within the Nigeria Federation have brought about absurd and unjust results, as seen from several judicial interpretations and decisions. For example, a Public School Teacher who flogged his students and hit one on the eye and blinded her was held by the Supreme Court to be protected by the Public Officer Protection Law.1Consequently, calls for the repeal and abrogation of the Act/Laws have not only dogged the continued existence of this piece of anachronistic legislation, but it has actually been repealed and abrogated in some States of the Nigerian Federation.

Recently the Nigerian Law Reform Commission organized a Conference to fully consider the legislation and the verdict was for its repeal and abrogation at the Federal level.3 This was followed by a proposal to the National Assembly through the Speaker of the House of Representatives to have the Act repealed and abrogated. Hence this work examines the application of statutes and limitation laws to civil actions under the officer protection act within the Nigeria Legal system and ascertains whether the statutes and their applications meet the current need of Nigeria as a developing country. It further seeks to determine whether there is necessity for changes to the law as it is presently constituted in Nigeria, putting into consideration the structure of the society and the end of justice.

Odum v. Uganden (2009) 9 NWLR ( PT. 1146), 281
For the Claimant and the Defendant
1.3. Aims and Objectives

The thesis will examine the background, reception and development of limitation of action under the public officers protection act in Nigeria legal system as a general overview; its application in the different heads of civil causes of action and the applicability of the general principles of common law and equitable rules. It will proceed from the above to evaluate the efficacy of the application of limitation law while pointing out the areas of defect and taking a firm position as to the way forward.

4 Scope Of Study
The main scope of this work is to focus on the effect of applying limitation laws on the effective dispensation of justice and balance of interest between parties by the court. It will particularly focus on a constructive application of the public officers’ protection act which takes into consideration balance of interest between dispensation of justice and public interest, and lastly, it will present a balance of interest (by a system of compromise) whereby a portion of the claimants’ claim could be compromised as penalty for delay in instituting the action, but not totally barred.

1.4. Research Methodology:

The methodology of this research is analytical in nature. The sources of information are mainly primary and secondary materials. Primary sources include legislation and case laws, while the secondary sources include Books, articles and internet materials.

1.5. Structure of the Study

The dissertation is divided into five chapters; chapter one is the introductory aspect of the work where the background, statement of problem, the scope of the work among others are outlined, with a concluding paragraph explaining the meaning, the evolution and rationale behind limitation of actions. It will attempt a general introduction of the concept of limitation of action and furnish the paper with a preliminary background.

Chapter two addresses the reception of the concept of limitation of action into the Nigerian legal system and its subsequent development tracing the development through the Received English Law (Statute of General Application), its procedural application and development through court system and judicial precedent. The last part of chapter two will examine the other sources of limitation of action by considering the doctrines of equity particularly the doctrine of Laches which has the implication of the statute of limitation. The chapter basically looks into the common law principles, applicable statutes, case laws and application of equitable rules to the limitation of action.’

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