Action against Government

Despite the provisions of S. 6(6)(b) of the 1999 Constitution that guaranteed access to court and judicial powers over any matter between any person in Nigeria and government leaders authority, there are constitutional and statutory provisions that confer immunity on and limitation of action that can be successfully instituted against the government, authority and public officers. Some of these defences are discussed below:

Constitutional Immunity

S. 308 of the 1999 constitution provides:

Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section -
1. no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
2. a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
3. no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:
The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to "period of office" is a reference to the period during which the person holding such office is required to perform the functions of the office.

From the foregoing, no civil or criminal proceedings shall be instituted against any person to whom they Section applies during his period in office. Per Kekere Ekun JSC in the case of Ali v Albashir, the rationale for this ruling is the provision of protective shields for these offices and to uphold the dignity of the office holders in the discharge of their functions. It is to afford the person complete devotion to the high office which pertains to the welfare and stability of governance.

See the case of IMB plc v Tinubu which explains the nature and scope of constitutional immunity. In the said case, during the pendent of appeal against the respondent, the respondent contested for and won election into the office of Governor of Lagos State and was subsequently sworn-in. The Court of Appeal adjourned the appeal until he had vacated the office of the Governor of Lagos State based on the provisions of S. 308 of the Constitution. On appeal to the Supreme Court, the apex court determined the fact that the immunity under S. 308 is an absolute immunity and cannot be waivered.

The absoluteness of this immunity was again determined in the case of A-G Federation v Abubakar where S. 308 was considered in relation to the alleged breaches of the Code of conduct. The court held that S. 308 gave absolute immunity to relevant office holders under the section and so, these office holders cannot be tried.

This notion of absolute immunity does not however mean absolute in the literal sense. There exist certain exceptions to the scope of immunity. These limitations are stated below:

First, the Constitutional immunity will only apply during the period of office of the holder, as it will cease to avail him at the expiration of his tenure in office.

Second, Constitutional immunity would also not avail an office holder where his election is being challenged in the election petition proceedings before the Election Petition Tribunal.

Pre-action Notice

Pre-action notice is a statutory provision which requires notice of intended action to be first served on certain would-be defendant by an aggrieved party before such aggrieved party may seek judicial redress. This includes notice to certain corporate bodies. Such notice of action is usually required to disclose the cause of action, relief or reliefs sought and the name and place of business or abode of the aggrieved party.

Pre-action notice, where it is required, constitutes a condition precedent for institution of action; any action brought without the notice would be premature and incompetent. It is a condition which must be fulfilled in appropriate cases before seeking the intervention of the Court. A ‘condition’ is a “provision which makes the existence of a right dependent on the happening of an event, as opposed to an absolute right.

The Scope of Pre-Action Notice

It can be gleaned from the foregoing that pre-action notice operates to delay the exercise of an accrued right of action until the notice is given in the manner prescribed, that is, the notice of intention to seek judicial intervention in a matter must be served on the beneficiary of the statute.

Pre-action notice is a condition mandated or compelled to be done by statute before a litigant is entitled to sue the Defendant, who is a beneficiary, by reason of the statutory provision. The legitimacy of such provisions has long been recognized by our courts.

There are authorities for the proposition that pre-action notice is inapplicable to counterclaims. This may be garnered from the holding of T.I.C. Taylor C.J. (as he then was) in NPA v. Construzioni Generali F.G.S. & Another, to the effect that section 97 of the Ports Act which requires pre-action notice to be served on NPA is inapplicable to counterclaim. This received the nodding of the Supreme Court.

Mobil v. LASEPA & Ors is the authority for the proposition that a third party cannot rely on none service of pre-action notice to impeach a suit for non-compliance with pre-action notice.

Also see Prince Atolagbe & Another v. Alhaji Awunmi & Others where it was held per Mohammed JSC that pre-action notice is a condition precedent ordered to be done before a litigant is entitled to sue, by reason of the provision of some statute. It is not an ouster clause and not a device adopted by government to prohibit a judicial review. It is an additional formality and unless proved to be enacted with a view to inhibiting citizens from having access to courts, is not contrary to section 6(6)(b).

Any Justification?

It has been argued by pro-right scholars that statutory pre-action notice is contrary to the provision of section 6 of the Constitution. Essentially the argument is that the as the Constitution sets no condition precedent before a citizen may approach the Court for redress, any statute that purports to set such conditionality is unconstitutional.

The justification for pre-action notice has been advanced by some notable legal scholars and jurists. According to Sutton P.J. in the case of Ngelela v Tribal Authority, Nongowa Chiefdom, the “object of the notice is to give the Defendant a breathing time to enable it determine whether he could make reparation to the plaintiff”. In other words, the rationale for pre-action letter or notice is to give the other party opportunity to embrace non-judicial resolution of whatever disputes are between the parties.

The Supreme Court clearly expounded this in Katsina Native Authority v. Alhaji Makudawa that “the purpose of a pre-action notice to Local Government is that it is not taken by surprise, but has adequate time to prepare to deal with the claim in its defence.” The Apex Court stated further that the purpose of the notice is “not to throw hazards in the way of bringing litigation against it”.

In similar manner, the Supreme Court in Captain Amadi v. NNPC, put forward the view that the purposes of pre-action notice are legitimate, and are recognised procedural provisions to give the defendant “breathing time so as to enable him or it, determine whether he or it, make reparation to the plaintiff.”

It has been persuasively argued by M.O. Unegbu that by “giving the notice the authorities may initiate steps to amicably resolve the issue”.

A recently authority of the Supreme Court appears to have struck the right cords when it stated per Uwaifo JSC that pre-action notice is known to have one rationale – it is to apprise the Defendant before-hand of the nature of the action contemplated and to give him enough time to consider and reconsider his position in the matter as whether to compromise or contest it. This is in consonance with another more recent decision of the Supreme Court, where the apex court stated as that: “the rationale behind the jurisprudence of pre-action notice is to enable the defendant know in advance the anticipated action and a possible amicable settlement of the matter between the parties, without recourse to adjudication by the Court. It is a harmless procedure designed essentially to stop a possible litigation, thus saving money and time of the parties”.

Effect of Non-Compliance

By and large, it is agreed that none compliance with pre-action notice where it is required renders the action premature. This is so as “the language is imperative and would appear to bar a court from entertaining a suit instituted without compliance with its provision.”

On this implication of non-service, it has been stated that ‘there is no dearth of authorities as to the consequences of failure to serve a pre-action notice when such is made a condition precedent for the commencement of a suit. A suit commenced in default of service of a pre-action notice is incompetent as against the party who ought to have been served with the pre-action notice…”

It must equally be understood that failure to give the notice though renders any action incompetent; nevertheless, care must be taken to understand the essence of the notice. Non-compliance does not abrogate the right of the plaintiff to approach the court or defeat his cause of action. If the subject matter is within the jurisdiction of the court, failure on the part of the plaintiff to serve a pre-action notice on the defendant gives the defendant a private right solely for his benefit to insist on such notice before the plaintiff may approach the court.

Thus non-service of pre-action notice does not obliterate the right of the plaintiff to approach the court for redress. It merely puts the jurisdiction of a court on hold pending compliance.

Pre-action Notice, Pleading and Waiver of Right

This is the area where controversy has recently surfaced in this subject. The water that has remained apparently calm over the years has been intermittently rippled to the extent that uncertainty has gradually crept in.

It has been fairly settled that any defendant who wishes to insist on his right to be served a pre-action notice, must act timeously by pleading non-service of the notice in his defence, and raise objection to the suit. Failure to do this is deemed to be a waiver. This can be distilled from the rule that an individual may renounce a law made for his special benefit.

This is the rule laid down by the Supreme Court in Makudawa’s case. In that case, the Respondent sued and obtained judgment against Katsina Local Authority at the Upper Area Court. The local authority appealed to the High Court where the question of non-compliance with section 116(2) (which required pre-action notice to be issued to Katsina Local Government Authority) was raised for the first time.

It was argued on behalf of the Local Authority that the whole trial was a nullity by reason of the non-compliance with pre-action notice. The High Court dismissed this contention. On further appeal to the Supreme Court, the argument that the service of the required pre-action notice is a pre-condition for the exercise of jurisdiction and that unless the sub-section is complied with, the entire proceedings are a nullity was rejected.

Actions against Public Officers

Who is a Public officer?

A Public officer as defined by the Merriam-Webster dictionary is a person who has been legally elected or appointed to office and who exercises governmental functions.

Is there a difference between a public officer and a civil servant in Nigeria?

A civil servant in Nigeria is an employee of any of the three tiers of government in Nigeria or its agencies other than the military.

In Nigeria, the Supreme Court has made it clear that a public officer not only includes the individual (public officer) but also includes the office itself (the public office). This was stated in Ibrahim V. Judicial Service Committee Kaduna State & Anor. What this also means is that an artificial body or public department is now a public officer as long as they are sued for an act done in the execution of their public duties. i.e. public officers and public offices have no distinction between them.

With this it is clear that the distinction between the civil servant and public officer is that while the civil servant is restricted to only natural persons (humans), the public officer is not only a natural person but also an artificial person (offices, departments etc.).

The public officer is protected by the Public Officers Protection Act. The Public Officers Protection Law is one of the statutes of limitation in Nigeria. It prohibits the institution of court actions against a public officer after a period of three (3) months. This is by virtue of Section 2 of the Public Officers Protection Act.

It is a settled law that the complainant or plaintiff must bring the action against the public officer for an act done pursuant to any public duty within three (3) months following the act complained of.

This protection which has been guaranteed by the Supreme Court is not a full protection to Public Officers. There are exceptions to the protection offered to public officers. These are;

Cases of recovery of land
Claims for work & labour done
Good faith
Breaches of contract
Cases of continuance of damage or injury
Actions not within the statuary or constitutional provision of the public officer

Cases Of Recovery Of Land: - In respect of recovery of land, public officers are not protected under the law. The Supreme Court has emphasized this in Attorney General Rivers State v. Attorney General Bayelsa State & anor.

Claims for Work & Labour done: - The law does not protect public officers who are sued over claims for work & labour done. FGN v. Zebra Energy Ltd is a Supreme Court decision to support this exception.

Good Faith: - Public officers who do not act in good faith will not be exempted from the protection guaranteed by the law. Inspector General of Police V. Olatunji.

Breaches of Contract: - Where there is a breach of contract, the public officer is not protected from being sued.

Cases of Continuance of Damage or Injury: - The law permits the institution of legal action outside the three-month period where the action, damage or injury is a continuous one.

Actions not within the statuary or constitutional provision of the public officer: - When a public officer carries out an act which does not fall within the statutory provision of the public office then the law will not avail such officer. See Nwankwere v. Adewunmi.

It is important to note that these exceptions are for civil cases. Where the public officer is involved in a crime then such public officer is not protected from the law. However, there is an exception to this, The President, Vice President, Governor and Deputy Governor are public officers who are exempted from criminal trials while holding such positions this is otherwise called the immunity.