CASE REVIEW: MALLAM NASIR AHMED EL-RUFAI V. SENATE OF THE NATIONAL ASSEMBLY & 5 ORS

MALLAM NASIR AHMED EL-RUFAI V. SENATE OF THE NATIONAL ASSEMBLY & 5 ORS

[2016] 1 NWLR (PART 1494) 504

(2014) LPELR – 23115 (CA)

Delivered by the Court of Appeal, Abuja Division

SUMMARY OF FACTS:

The appellant, Mallam Nasir Ahmed El-Rufai, was the Minister of the Federal Capital Territory between June 2003 and May 2007. The Senate reacting to several petitions written by members of the public regarding the official conducts of the appellant decided to conduct investigative public hearing on the activities of the Federal Capital Territory between 29th of May 1999 and 29th of May 2007. A Senate Committee was inaugurated to conduct the investigative hearing and in the course of the hearing, the appellant appeared before the Committee and made both oral and written presentations. At the conclusion of the hearing, the Committee submitted its report and made the following three recommendations:

  1. That the appellant should account for all funds collected by the ad-hoc bodies he raised during his tenure;
  2. That the house the appellant obtained for himself where he signed as both lessor and lessee be revoked; and
  3. That he is not a fit and proper person to hold office in a democratic set up.

 

The appellant in reaction to the report of the Committee filed a fundamental rights suit against the Senate of the National Assembly, President of the Senate, Senator Abubakar D. Sodangi, Clerk of the National Assembly, Minister of the Federal Capital Territory and Attorney General of the Federation (the respondents) alleging the following:

  1. That the failure of the Committee to make the petitions written against him available to him despite his request constituted a breach of his fundamental rights;
  2. That the membership of the Committee was composed mainly and primarily of persons who are interested in the subject matter of the investigation contrary to the principles of fair hearing and natural justice;
  3. That the Committee refused to afford him adequate time and facilities for his defence in breach of his right to fair hearing;
  4. That the recommendation of the Committee that he is not a fit and proper person to hold public office in a democratic set up is a breach of his right to participate directly in government and have access to public service.

He asked for an order quashing the entire proceedings as well as the interim report issued by the Committee and an order perpetually restraining the respondents from acting on the recommendations or deliberating upon the interim report issued by the Committee. The respondents filed various notices of objection as well as responses to the main suit.

In a judgment delivered on the 11th of March 2010, the Federal High Court sitting in Abuja, upholding one of the objections of the respondents dismissed the appellant’s fundamental rights suit on the ground that it was statute barred. The appellant immediately appealed against the judgment of the court and in a judgment delivered on the 31st of March 2014, the Court of Appeal allowed the appeal, set aside the judgment of the Federal High Court and remitted the appellant’s application for the enforcement of his fundamental rights to the Chief Judge of the Federal High Court for assignment to another Judge.

 

ISSUES IN THE APPEAL:

The main issues dealt with in the appeal are whether the provisions of Section 2(a) of the Public Officers Protection Act are applicable in an action for the enforcement of fundamental rights thereby rendering such an action statute barred and whether the trial court should have gone ahead to determine the substantive issues after ruling that the suit was statute barred.

REVIEW:

The trial court on the application of the appellant had heard the substantive application along with the Notices of Preliminary objections filed by the respondents. Upholding the argument that the suit was statute barred, the court dismissed the suit without determining the substantive application. The appellant argued that the court was wrong not to have determined the substantive application. He relied on the case of Yusuf v. Adegoke (2007) 11 NWLR (Part 1045) 332 where the Supreme Court held that “All courts (including the Supreme Court) must never leave any issue or issues raised by the party or parties to a suit without hearing and determining same before concluding the case.” He argued that the failure of the trial court to consider the substantive suit for the enforcement of his fundamental rights amounted to a breach of his fundamental rights and applied to the Court of Appeal to exercise its powers under Section 15 of the Court of Appeal Act to hear the substantive application. The respondents however argued that the court was right to have to have taken the preliminary objections first and having found that the suit was statute barred was right to have dismissed same. They argued that since the court had dismissed the suit, there was nothing left for the court to determine. They also argued that the court could not invoke its powers under section 15 of the Court of Appeal Act as the conditions set out in Inakoju v. Adeleke (2007) 4 NWLR (Part 1025) 423 are absent.

The Court agreed with the appellant that the court after its ruling on the objections should have gone ahead to express his views and opinions on the substantive application having decided to hear all the applications together and in order to save time and resources. Moore A.A. Adumein, JCA, delivering the lead judgment stated that the ‘wholesale approach’ of resolving all the issues was preferable to the ‘retail approach’ adopted by the court. He stated:

I am of the view that the learned trial Judge erred in not expressing his opinion or views on the appellant’s substantive application, after determining that the appellant’s action was statute barred. The learned trial Judge, having undertaken a judicial commitment “to hear the objections together with the substantive application” had the judicial burden to express his views on both the objections and the substantive application, as he was not sitting in a court having the final say on both the objections and or the substantive application. It was incumbent upon the trial court, having regard to its own decision to hear the objection and the substantive application together, to determine both the objections and the substantive application one way or the other. In other words, the trial court, in order to save precious judicial time, ought to have proceeded to determine the substantive application after resolving that the action was statute barred. This is usually done, in circumstances such as the present case, by the trial Judge saying: “In case I am wrong in my decision/view that the plaintiff’s action is statute-barred, I will consider the application/case on its merit” or words in like manner, indicating his alternative decision to that on the preliminary objection(s). By so doing, time and scarce resources will be saved by parties having only one ‘bag’ of appeal containing all their grievances, including the issue of jurisdiction, on the subject-matter of litigation. This ‘wholesale’ approach, in my view, is preferable to the piece-meal or ‘retail’ approach to the resolution of disputes, especially these days that the issue or question of jurisdiction has been and is being abused by some litigants and their lawyers.”

 

On the issue of whether the action was statute-barred, the court first considered whether the respondents except the third respondent (Senate of the National Assembly, President of the Senate of the National Assembly, Clerk of the National Assembly, Hon. Minister of the Federal Capital Territory and Attorney General of the Federation) were public officers under the Public Officers Protection Act. The Court agreed that they were public officers and in the lead judgment stated that “…I am tempted to agree, and I actually agree, with the view of the learned trial Judge that they qualify as persons who can take cover under the protection of the Public Officers Protection Act. This is so because the respondents are all juridical persons.” Relying on the definition of ‘Public officer’ under section 18 of the Interpretation Act and the cases of Alhaji Aliyu Ibrahim v. Judicial Service Committee, Kaduna State & Anor. (1998) 14 NWLR (Part 584) 1 and Federal Government of Nigeria & 6 Ors v. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162, Justice Adumein stated further that “The law seems settled that Public Officers Protection Act protects both artificial persons and natural persons, who act in the public service of the Federation of Nigeria or of a State of the Federal Republic of Nigeria.”

Despite the finding that the respondents were public officers, the Court of Appeal however held that the provisions of section 2(a) of the Public Officers Protection Act being a statute of limitation would not apply considering the nature of the suit. Owing to the inalienable and immutable nature of fundamental rights, the court held that such an action could not be defeated by the provisions of a statute of limitation. Justice Adumein held:

It is, therefore, clear that an action for the enforcement of a person’s fundamental right cannot be defeated by the provisions of a statute of limitation. This point has been made clear and plain by Order 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which came into force on the 1st day of December, 2009. Order 3 of the said Rules provides that: An application for the enforcement of fundamental rights shall not be affected by any limitation statute whatsoever.” It is clear, from all that I have stated above, that the applicant’s application for the enforcement of his fundamental rights was not statute barred either under section 2(a) of the Public Officers Protection Act or any other statute of limitation.”

Joseph Tine Tur, J.C.A. further elucidated the principle clearly when he stated: “I am of the humble view that no limitation statute or law, for example the Public Officers Protection Act or Law can be invoked by any litigant to cause a court of law and justice to decline jurisdiction when the cause or matter in controversy involves fundamental or human rights of an aggrieved person as occurred in the lower court.”

 The court thus allowed the appeal but refused to exercise its powers under section 15 of the Court of Appeal Act stating that “…having regard to time constraints, the nature of the appellant’s claims and his entire application, the interest of justice will be served better, if the lower court is asked to exercise its constitutional jurisdiction by hearing and determining the application on its factual and legal merits.”

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