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Kolo vs. Att.-Gen., Federation

HON. JUSTICE MAMAN KOLO

V

ATTORNEY-GENERAL OF THE FEDERATION

COURT OF APPEAL

( ABUJA DIVISION )

MUHAMMAD S. MUNTAKA-COOMASSIE, JCA ( Presided )

ZAINAB ADAMU BULKACHUWA, JCA

ALBERT GBADEBO ODUYEMI, JCA ( Read the Lead Judgment )

CA/A/18/M/2001

WEDNESDAY, 17TH JULY, 2002

ACTION - Concurrent liability under tort of negligence and breach of contract - A plaintiff maintaining action therefor - Better option thereto

ACTION - Contract which is actionable per se - Action for damages in breach of - When cause of action accrues - When limitation starts to run

ACTION - Pre-action notice - Aim and legitimacy of

CONTRACT - Law of contract and law of tort - Distinction between

CONTRACT - Tort and Contract - Distinction between

COURT - A statute that seeks to regulate access to a court - Court holding that same constitutes an infringement of right of access to court as guaranteed by section 33(1) of 1979 Constitution - Onus upon court before so doing

FAIR HEARING - A statute that seeks to regulate access to a court - Court holding that same constitutes an infringement of right of access to court as guaranteed by section 33(1) of 1979 Constitution - Onus upon court before so doing

JUDICIAL PRECEDENT - Nigerian Ports Authority vs. Construzioni Generali F.C.S. & Anor. (1974-75) 9 NSCC 622; (1974) ALL NLR ( Reprint) 1945 - Whether really decided the question whether section 97  of the former Ports Act relating to statutory limitation applied to contracts

LIMITATION LAW - Statute on limitation of action - Essence of

LIMITATION OF ACTION - Breach of contract - Tort of negligence Statutory limitation therefor - Difference between

LIMITATION OF ACTION - Contract which is actionable per se - Action for damages in breach of - When cause of action accrues - When limitation starts to run

LIMITATION OF ACTION - Public Officers Protection Act - Scope of applicability of

PRACTICE AND PROCEDURE - A statute that seeks to regulate access to a court - Court holding that same constitutes an infringement of right of access to court as guaranteed by section 33(1) of 1979 Constitution - Onus upon court before so doing

PUBLIC OFFICER - Public Officers Protection Act - Scope of applicability of

PUBLIC OFFICER - Public Officers Protection Act Cap 379, Laws of Federation 1999 and similar legislations which prescribe giving of pre-action notice - Whether contravene section 36 of 1999 Constitution

STATUTE - A statute that prescribes the procedure for invoking the exercise of judicial powers - Whether can be said to be in conflict with section

6  or section 33(1) of 1979 Constitution

STATUTE - Public Officers Protection Act - Scope of applicability of

TORT - Tort and Contract - Distinction between

Issues:

1.             Whether the claims of the appellant against the respondent is not statute-barred by virtue of section 2(a) of the Public Officers Protection Act Cap. 379 Laws of the Federation 1990 or not.

2.             Whether Cap. 379 Laws of the Federation is unconstitutional.

Facts:

The appellant, Hon. Justice Mamman Kolo, was a Judge of the Federal High Court, Abuja until he was compulsorily retired from his employment in the Judicial Service of the Government of the Federation of Nigeria on 22 nd April, 1998 by the decision of the then (defunct) Provisional Ruling Council. The appellant, challenged the legality of his retirement by filing a writ of summons in the Federal High Court, Abuja his former court on 12th March, 1999 after a lapse of more than ten months from the date of the commencement of the cause of action. Before the proper commencement of hearing before that court, and after the close of pleadings, the respondent raised a preliminary objection that the action of the appellant herein was statute-barred in that it was not brought within 3 months as required by section 2 of the Public Officers Protection Law.

After conclusion of arguments of counsel, the trial court upheld the respondent’s preliminary objection and dismissed the appellant’s case, hence this appeal. The Court of Appeal considered section 97 of NPA Act, Cap 361  Laws of Federation of Nigeria and section 2(a) of the Public Officers Protection Act, which provides as follows:

Section 2(a) of the Public Officers Protection Act:

2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or 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 -

(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 commenced within three months after the discharge of such person from prison.