⦿ CASE SUMMARY OF:
Mallam Nasir Ahmed El-rufai v. Senate Of The National Assembly & Ors (2014) – CA
by PaulPipar
⦿ PARTIES
APPELLANT
Mallam Nasir Ahmed El-rufai
v.
RESPONDENTS
1. Senate of The National Assembly
2. President of The Senate of The National Assembly
3. Senator Abubakar D. Sodangi
4. Clerk of The National Assembly
5. Hon. Minister Of The Federal Capital Territory
6. Attorney General Of The Federation
⦿ CITATION
(2014) LPELR-23115(CA);
⦿ COURT
Court of Appeal
⦿LEAD JUDGEMENT DELIVERED BY:
Moore A. A. Adumein, J.C.A.
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– Bamidele Aturu, Esq
FOR THE RESPONDENT
– Yunus Ustaz (SAN)
⦿ FACT
This is an appeal against the final judgment of the Federal High Court, Abuja Division per Honourable Justice M. G. Umar delivered on 11th March, 2010 whereby the lower court dismissed the action of the Appellant on the ground that it was statute barred.
The appellant was the Minister of the Federal Capital Territory between June 2003 and May 2007. In response to several petitions written by members of the public against some of his official conduct, while in office. On 12/03/2008 there was a resolution of the Senate to conduct investigative public hearing on the activities in the Federal Capital Territory between 29th of May 1999 and 29th day of May 2007. A Senate Committee was thereafter inaugurated to conduct the investigative hearing. The appellant appeared before the Committee and made his oral and written presentation. The Joint Committee on the 10th day of July, 2008 submitted its report and made recommendations to the Senate that:
a. He should account for all funds collected by the Ad Hoc bodies he raised during his tenure.
b. The House he obtained for himself where he signed as lessor and lessee be revoked.
c. He is not a fit and proper person to hold office in a democratic set up.
Pursuant to the said report, the Appellant commenced an action at the lower court by way of motion ex-parte seeking leave of court to enforce his fundamental rights, and sought:
“the Order, of perpetual injunction restraining the respondents whether by themselves, agents, privies, officers, members or by whomsoever and howsoever from acting on the recommendations or deliberating upon the interim report on the investigative public hearing on the Activities of the Federal Capital Territory, for Administration between 1999 – 2008 or any other report for that matter based upon the illegal and unconstitutional investigative Public hearing between 12th of March, 2008 and 10th of July, 2008 by them insofar as it affects the applicant or at all.”
⦿ ISSUE
a. Whether the learned trial judge was right in holding that the failure of the respondents to make available to the Appellant petitions written against him was the principal cause of action.
b. Whether having regard to the entire circumstances, the learned trial judge was correct to have held that Appellant’s suit was caught by the provision of Section 2(a) of the Public Officers Protection Act.
c. Whether it was right for the learned trial judge not to have considered the case of the Appellant on the merits.
⦿ HOLDING
For issue A, the Court of Appeal held, “An examination of the appellant’s action in the lower court reveals clearly that his action is for the enforcement of his ‘fundamental rights.”
Issues B & C were resolved in favour of the Appellants.
On issue B, the Court of Appeal held, “I have considered the arguments on whether the 1st, 2nd, 4th, 5th and 6th respondents qualify as “public officers” or “persons” under the Public Officers Protection Act and 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.”; “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.”;
On issue C, the Court of Appeal held, “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 Court of Appeal held, “In summary, I hold that this appeal has merit and it is hereby allowed. The judgment of M. G. Umar, J. delivered on 11th March, 2010 in Suit No. FHC/ABJ/CS/535/08 is hereby set aside. per Adumein JCA”
Court of Appeal held further, “The appellant’s application for enforcement of his fundamental rights in [Suit] No. FHC/ABJ/CS/535/08 is hereby remitted to the Honourable Chief Judge of the Federal High Court to be assigned to any Judge of that court, other than M. G. Umar, J., to be expeditiously heard and determined.”
⦿ REFERENCED
Interpretation Act Cap. 192, Laws of the Federation of Nigeria, 1990;
S.(2)(a) Public Service Protection Act;
Black’s Law Dictionary, 9th edition;
Fundamental Rights (Enforcement Procedure) Rules 1979;
⦿ SOME PROVISIONS
⦿ NOTABLE DICTA
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). – Moore A. A. Adumein, J.C.A. El-rufai v. Senate of the National Assembly (2014)
The law seems settled that Public Officers Protection Act protect 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. – Moore A. A. Adumein, J.C.A. El-rufai v. Senate of the National Assembly (2014)
The law seems quite settled that a time specified in a statute of limitation for filing an action cannot be extended by the court, unless the statute itself has made provision for extension of time. – Moore A. A. Adumein, J.C.A. El-rufai v. Senate of the National Assembly (2014)
In the determination of a question whether or not an action is statute barred the processes that should be examined are the claims endorsed in writ of summons and/or statement of claim and the facts pleaded in the claimant’s statement of claim. – Moore A. A. Adumein, J.C.A. El-rufai v. Senate of the National Assembly (2014)
Fundamental rights are, therefore regarded as inalienable human rights which cannot be infringed without a breach of the fundamental law of the land, that is the Constitution, which recognizes such rights. – Moore A. A. Adumein, J.C.A. El-rufai v. Senate of the National Assembly (2014)
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.” – Moore A. A. Adumein, J.C.A. El-rufai v. Senate of the National Assembly (2014)
The African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 by virtue of its ratification by the National Assembly is deemed to be an Act of the National Assembly. – Joseph Tine Tur, J.C.A. El-rufai v. Senate of the National Assembly (2014)
If the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, 1983 did not prescribe time limit for instituting an action to enforce the violation of a fundamental right of an aggrieved person, it will seem to me that the deemed Act of the National Assembly ought to over-ride Rules of practice and Procedure made by the Chief Justice of Nigeria in 1979 which prescribed 12 months as the limitation period for seeking leave of Court to enforce fundamental rights. – Joseph Tine Tur, J.C.A. El-rufai v. Senate of the National Assembly (2014)
That is to say that the legislative intention is to read Chapter IV of the 1999 Federal Constitution together with the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act to come to a definite term as what constitutes “Fundamental Rights” or “Human and Peoples’ Rights” as envisaged by the National Assembly. – Joseph Tine Tur, J.C.A. El-rufai v. Senate of the National Assembly (2014)
Whether the action was instituted under the Fundamental Rights (Enforcement Procedure) Rules, 1979 or 2009 or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap A9, Laws of the Federation, Vol. 1 of 2004. I am of the humble view that no limitation statute or law, 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. – Joseph Tine Tur, J.C.A. El-rufai v. Senate of the National Assembly (2014)
