Fred Egbe V. Justice A. Adefarasin & Anor (1985)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C.

This appeal involves issues of great constitutional and legal importance. The dimension of the issues are accentuated not only in their relative rarity in our Courts, but they involve a restatement of the two well settled principles. These are the scope of the immunity of Judges of superior Courts and the protection of public officers in the discharge of their duties, and the fundamental right of the aggrieved to seek and obtain redress in the Law Courts.

The issue to be decided in this appeal seems to me the result of the conflict between these two well settled principles. Suits against High Court Judge in our Courts are extremely rare. This appeal is strictly speaking not such an action. The claim is essentially a challenge as to the validity of the act of the Judge, and a public officer in the discharge of their duties as a Judge or such officer. The only issue to be determined is whether the action against the defendants in the circumstances is maintainable in Law.

This is an appeal from the judgment of the Court of Appeal Division, Lagos. Appellant, a Legal Practitioner, residing at Plot 197, Adeleke Adedoyin Street, Victoria Island, Lagos issued a writ of summons claiming the following declarations-

1. The document of consent dated 11th October, 1978 issued by the 1st Defendant for the criminal prosecution of the Plaintiff is illegal and void.
2. The said document was issued maliciously.
3. The preferment of Charge No. LCD/24/78 – The State vs. Fred Egbe by the 2nd Defendant in furtherance of the said charge are illegal and void.

The 1st Defendant is and was at all material times the Chief Judge of Lagos State, whereas the 2nd defendant is now a Judge of the High Court of Lagos State, but was at the material time the Director of Public Prosecutions in the Ministry of Justice of Lagos State. Both defendants are therefore public officers.

The 1st defendant, the Chief Judge of Lagos State has given consent to the prosecution of the appellant of an indictable offence, as is required by Section 340(2)(b) of the Criminal Procedure Act. This is undoubtedly a judicial duty done virtue officii. The 2nd defendant was at the material time the Director of Public Prosecutions in the Ministry of Justice of Lagos State. It is he who made the application for consent to the 1st defendant.

This duty of prosecution is traditionally undertaken by this officer on behalf of the Attorney-General, whose constitutional function it is to undertake prosecution of criminal offences. (See S.191(1) and (2) Constitution 1979). Again, the application was made in the course of his duties as a public officer. There are averments in the statement of claim alleging bad faith, improper motive and collusion in the application for consent to the prosecution and the giving of the consent between the 1st and 2nd defendants and others who are not parties to the action.

Plaintiff’s statement of claim has averred all these facts and allegations. The defendants have not filed any statement of defence, and applied to strike out the endorsement in the writ of summons and to dismiss the action with costs. For this purpose they entered a conditional appearance to the writ of summons, and thereafter applied by motion under Order 18 R. 19 R.S.C. of England 1965 and Order 22 R. 4 of the High Court of Lagos State (Civil Procedure) Rules, and the Courts inherent jurisdiction praying as follows.

1. That the particulars and statement of claim in this action and the endorsement in the writ of summons be struck out.
2. That this action be dismissed with costs.

AND FURTHER TAKE NOTICE that the grounds for this application are:

That the particulars of claim disclose no reasonable cause of action.

2. The Plaintiff’s action is scandalous, frivolous and vexatious.
3. The Plaintiff’s action is otherwise an abuse of the process of the Court.

In that:

(a) Being an action within the purview or contemplation of the Public Officers Protection Law Cap. 114 Laws of the Lagos State this action is statute barred.

(b) That the first Defendant/Applicant enjoys the protection offered under and by virtue of Section 88(1) of the High Court Law, Cap. 52 Laws of the Lagos State.

(c) That (sic) act complained of against the 1st Defendant/Applicant was done in the exercise of the 1st defendant’s discretion as a Judge of the High Court of Lagos State.