THE SHIELD AND THE SWORD: NAVIGATING THE PUBLIC OFFICERS PROTECTION ACT IN NIGERIAN LITIGATION

By: C.K. Anyanwu (LLM)
&
Jessica D. Nkama (Miss)

Introduction
In the Nigerian legal landscape, the Public Officers Protection Act (POPA) and its various state counterparts serves as a formidable statutory shield. However, recent judicial pronouncements have refined this protection, ensuring it does not become an instrument of injustice. Drawing from landmark authorities, this article explores the mechanics of the three-month limitation period and the instances where the shield may be lowered.

A)The General Rule: The Three-Month Window

The primary effect of Section 2(a) of Public Officers Protection Act is to create a strict limitation period. As established in Kasandubu v. Ultimate Petroleum Ltd. (2008) 7 NWLR (Pt. 1086) 274 CA, any action, prosecution, or proceeding against a public officer must be commenced within three months of the act, neglect, or default complained of.

The consequences of missing this window are terminal for a suit:

Extinguishment of Right: The right to commence action is totally barred.

Loss of Cause of Action: At this stage, the plaintiff effectively has no cause of action to present before the court.

Purpose of the Shield: As noted in NPA v. Eyamba & Ors (2014) LPELR-22726(CA), the object is to afford protection to officers in the execution of their public duties, ensuring they are not haunted by stale claims indefinitely.

B) Is the Protection Absolute?

A common misconception is that Public Officers Protection Act automatically bars any action filed after three months. However, the Court of Appeal in Alhassan v. Aliyu & Ors (2009) LPELR-8340(CA) clarified that the Act does not automatically bar actions; it merely provides a defense that can render an action statute-barred.

Furthermore, it is interesting to note that the protection is conditional. In Ekeogu v. Aliri (1991) LPELR-1079(SC), the Supreme court held thus:

The protection applies in two folds:
Protected Acts: these occurs when the act was done in pursuance, execution, or intended execution of public duty.

Unprotected Acts: Acts committed under the ‘cover’ of office but which are not in the actual execution of public duties.

C) Key Exceptions to the Rule

The judiciary recognizes that rigid application of POPA could lead to absurdity. Two major exceptions stand out:

I) Continuance of Damage or Injury: In Radiographers Reg. Board, Nig. v. M. & H.W.U.N. (2021) 8 NWLR (Pt. 1777) 149 CA, the court emphasized that where injury is ongoing, a fresh cause of action arises daily. The three-month countdown only begins once the damage ceases.

Il) Abuse of Office and Bad Faith: In ABU, Zaria v. Ekundayo & Ors (2021) LPELR-55240(CA), the court held that the law does not protect an officer who uses their power for personal gain, to show undue favor, or to wreak vengeance.

In the light of the following, the burden lies on the Plaintiff to establish that the public officer acted in bad faith or abused their office to move the case outside the protection of the Act.

D) Protection for Non-Public Officers?
A fascinating dimension of the Act was explored in Sylva v. INEC & Ors (2015) LPELR-24447(SC). The Supreme Court cautioned against a “skewed interpretation” based solely on the Act’s title. The court suggested that the protection under Section 2 can extend to other persons sued alongside a public officer, depending on the nature of the act performed. The focus is on the act being protected, not just the status of the person.

E) The Mandatoriness of Section 2(a)

In Agboola v. NNPC & Ors (2020) LPELR-52436(CA), the court took a hardline approach. It emphasized that Section 2(a) uses the word “shall,” denoting a mandatory statutory provision.

The court distinguished between two types of jurisdiction:

Procedural Jurisdiction: Rights created for the benefit of a specific party (e.g., pre-action notices or service of process out of jurisdiction). These can be waived.

Substantive Jurisdiction: Rights involving elements of public policy or statutory mandates. These cannot be waived.

According to Agboola, Public Officers Protection Act falls into the latter category. Because the law extinguishes the right of action after three months, no litigant can “confer” jurisdiction back onto the court by waiving the protection. If the suit is late, the court is robbed of jurisdiction, a point the court can even raise suo motu (on its own motion).

F) The Counter-Argument:

Conversely, the principle of Quilibet potest renunciare juri pro se introducto (anyone may renounce a law made for his special benefit) suggests a different path.

In Onukogu v. Nwokolo & Anor (2021) LPELR-55185(CA), the court noted that where a right is conferred solely for the benefit of an individual who is sui juris, they should be able to forgo it. Under this school of thought, a public officer can decide not to plead the Act, thereby allowing the case to proceed.

F) Acting Outside Authority

Even where the Act is pleaded, it is not a blanket immunity for all conduct. As held in NPA v. Okereke (2016) LPELR-41446(CA), a public officer cannot claim protection if:

They acted outside the scope of their authority.

The act was done without a “semblance of legal justification.”

The conduct amounted to a total departure from statutory duties.

G) Practical Implications for the Litigant

The conflict between Agboola and Onukogu (supra) highlights a strategic crossroads in Nigerian litigation.

For the Defendant: While some authorities suggest you can waive the protection, the safer and more dominant view (following Agboola and A.G. Kwara State v. Adeyemo) is that the protection is a jurisdictional bar that “shall” be enforced.

For the Plaintiff: If you have filed outside the three-month window, your primary hope is not the defendant’s waiver, but proving that the officer acted in bad faith or that the injury is a “continuance of damage.”

Conclusion
For the Nigerian litigant, the Public Officers Protection Act is a double edged sword. While it provides a robust defense for the State, it is not an absolute immunity for malice or incompetence. To successfully navigate these waters, one must look beyond the three month calendar and scrutinize the nature of the duty performed and the intent behind the act.