Fred Egbe Vs. M.D. Yusuf (1992)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C.

In the substantive action in the High Court of Lagos State, the appellant in this appeal, as plaintiff, issues a writ on the 19th day of November, 1979, claiming against the respondent herein, the sum of N5,000,000 (Five million Naira) “being general and special damages for the torts of false imprisonment, malicious detention, malicious arrest, injurious falsehood and conspiracy.” Subsequently, a statement of claim was filed and thereafter the respondent filed a statement of defence.

The appellant claimed that he was arrested and detained by the respondent by virtue of detention order No.230 of 30th March, 1978 issued pursuant to Decree No.24 of 1967. This averment was admitted by the respondent in the statement of defence.

In January 1984, the respondent filed an application under Order 18 rule 11 of the Rules of Supreme Court of England which is in pari materia with Order 22 rule 2 of the Rules of Lagos State praying the Court “that the writ of summons and statement of claim filed herein be struck out on the ground that it discloses no legal cause action and that the said action be dismissed on the ground that

(1) That detention of the Plaintiff by the Defendant was done under the Armed Forces And Police (Special Powers) Decree 1967 in pursuance of which the Detention Order No.230 of 30th March, 1979 was executed and covered by the Detention Orders (Bar to certain Civil Proceedings) Decree 1969.

(2) The action is statute barred under the Public Officers Protection Law of Lagos State Cap. 114.

And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.”

Having considered the submissions of both parties, the learned trial Judge, Oladipo Williams, J. delivered a Ruling on the 21st day of March, 1984 dismissing the application. He was of the view that it was necessary to take some evidence before deciding the issue of jurisdiction. He concluded his ruling as follows:

“The state of the pleadings in this case and the course of events therein show that there are facts which would have to be considered very carefully in relation to the law of exclusion before a determination is made. Without attempting to decide anything at this stage, it may well be that at the end of the day the provisions of the law and the authorities cited by learned counsel for the defendant/applicant may be considered, but for now. I think it is necessary that the facts should be considered before arriving at any conclusion in respect of the privilege or protection which the law might have given to the defendant.

For these reasons, I am of the considered opinion that all the receivable facts should be examined carefully at the trial which has not commenced before the matter of jurisdiction is determined.

In the circumstances therefore, this motion is dismissed and the orders sought by it are accordingly refused.”

Against the ruling of Oladipo Williams, J., the respondent herein with the leave of the Court of Appeal granted on 29/5/1986, appealed to that Court on the following two grounds of appeal:-

“(1) The learned trial Judge misdirected himself in law when on Page 7 of his ruling, he stated as follows:-

“For these reasons, I am of the considered opinion that all the receivable facts should be examined carefully at the trial which has now commenced before the matter of jurisdiction is determined.”