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.”

PARTICULARS OF MISDIRECTION

(a) The provisions of the Armed Forces and Police (Special Powers) Decree 1967 and Detention Order. (Bars to Certain Civil Proceedings) constitutes a bar to the institution of any action in respect of any steps taken by the Inspector General of Police pursuant to the Decree.

(b) Section 2(a) of the Public Officers Protection Law Cap 114, Laws of the Lagos State of Nigeria provides for a three months statutory period of limitation for instituting actions against Public Officers.

(c) The Defendant was at the material time the Inspector- General of Police.

(2) The learned trial Judge erred in law in holding that the Armed Forces and Police (Special Powers) Decree 1967, the Detention Orders (Bar to certain Civil Proceedings) Decree Law 1969 and the Public Officers Protection Law, Cap 114, Laws of the Lagos State of Nigeria did not constitute a statutory bar to the trial of the Plaintiff’s action on the ground that the action before the Court was in respect of more claims than for damages for arrest and detention.PARTICULARS OF MISDIRECTION

(a) All the alleged wrongs constituted in the Plaintiff’s claim occurred more than three months before the institution of the action; the alleged wrongs culminated in the arrest and detention of the Plaintiff which occurred on 30th March, 1978 while the action was filed on the 19th November, 1979.

(b) The Defendant was the Inspector-General of Police at the material time.

(c) The provisions of the aforementioned statutes deprive the Court of Appeal jurisdiction in the matter.”

In the unanimous judgment of the Court of Appeal delivered on 10th February, 1987, that Court allowed the appeal holding that the action was statute barred by the terms of the Public Officers Protection Law Cap.114 of the Laws of Lagos State following the decision of this Court in Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) p. 549. The action was consequently struck out. It is from that decision of the Court of Appeal that the appellant has further appealed to this Court on the following grounds of appeal:-

(a) The learned Justices of Appeal erred in law in holding that admittedly malicious actions are protected under Section 2 of the Public Officers Protection Law Cap. 114.

PARTICULARS

The defendant admits on the authority of Foko v. Foko 1968 NMLR 441 at page 444 that his actions were motivated by malice and a fortiori not in “furtherance of any public duty” or “course of official duty.” Such actions therefore cannot be protected.

(b) The learned Justices of Appeal erred in holding that public officers committing crimes in the pretended discharge of their public duties were protected under the Public Officers Protection Law Cap. 114 – strange and illogical reversal of this same Court’s decision in CA/L/l38/84 – Fred Egbe v. Abubakar Alhaji. M.D. Yusuf and S.O. Ojomo.

PARTICULARS

In CA/L/l38/84 Fred Egbe v. Abubakar Alhaji,MD. Yusuf and S.O. Ojomo, the Court of Appeal said al Page 12 lines 4 to 6 as follows:- “The law in my view is not intended to offer protection to any public officer engaged in criminal acts and or acts outside official duties” – per Hon. Kutigi, J.CA.

In the present appeal, the Respondent, M.D. Yusuf, admits that the averments in the Statement of Claim allege the commission of serious crimes (felonies). In fact Respondent had earlier applied by way of motion in this same action to the Lagos High Court (motion dated 22nd June 1982), praying that the Plaintiff’s action be stayed until the felonies disclosed in the Plaintiff’s averments had been prosecuted. The authority of Smith v. Selwyn (1914) 3 K.B. 98 was called in aid by Respondent – See FCA/L/148/82 delivered by Justice M.B. Ogundare J.CA.

(c) The learned Justices of Appeal erred in law in treating the Public Officers Protection Law Cap. 114 on the same basis and giving it the same legal effect as a Statute of Limitation.

PARTICULARS

This effort is graphically illustrated by this classic mistake by the Hon. Karibi-Whyte, J.S.C when he said that in considering the application of the Public Officers Protection Law, the question was “whether the action was maintainable, it was not whether the defendant is liable.”

Arising from the grounds of appeal filed, the appellant, in his brief of argument formulated three issues for determination in this appeal as follows:”

QUESTIONS FOR DETERMINATION

(1) Whether the confusion concerning the interpretation of S.2(a) of the Public Officers Protection Law now introduced by the decision in Fred Egbe v. Adefarasin has been satisfactorily resolved in the latest Supreme Court decision in Fred Egbe v. Alhaji Abubakar Alhaji.

(2) Whether the distinction made by the Supreme Court in Egbe v.Ojomo & Ors., that there is a difference between malicious acts which are criminal and which are not protected, and malicious acts which are not criminal and therefore are protected is valid.

AND

(3) Where for the purposes of this appeal the validity of the distinction is admitted, the category into which the present appeal falls bearing in mind that even the Defendant/Respondent, M.D. Yusuf, admits that the actions attributed to him in the complaint were both malicious and criminal and felonious.”

In his own brief of argument, counsel for the respondent raised the issue for determination as follows:

“Is the issue of malice a relevant consideration in the application of Section 2(a) of the Public Officers Protection Law Cap. 114, Laws of Lagos State of Nigeria. As a corollary to this issue is the question of whether or not the Public Officers Protection Law is a limitation enactment or matter to be raised only by way of a special defence or both.”

It is well settled practice that in any appeal, issues for determination must relate to the ground or grounds of appeal filed – A-G Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 NWLR (Pt.66) 547; Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514 at p.529 and Western Steel Works Limited v. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt.49) p. 284. In this case, however having considered the grounds of appeal filed and the submissions of counsel. I am of the view that the formulation of the issues for determination by the respondent is more preferable than that of the appellant and I will accordingly adopt the issues for the determination of the appeal. In addition I will consider the invitation of the appellant to this Court to overrule its decision in Fred Egbe v. Adefarasin on the ground that it was wrongly decided.

As rightly stated by the learned counsel for the respondent, the pith and substance of the appellant’s contention in this appeal is that malice be a relevant factor to be taken into account in the application of the provisions of S.2 of the Public Officers Protection Law, Cap. 114 of the Laws of Lagos State of Nigeria. It is the contention of the appellant that a “Public Officer is only entitled to the Protection contained in section 2 of the Public Officers Protection Law, Cap.114, if these two elements are present i.e. if the officer involved acted in furtherance of the statute and in good faith.” In support of this submission he cited the English case of Scammel and Nephew Ltd. v. Hurley which case, he submitted was adopted by this Court in the cases of Inspector General of Police v. Olatunji (1955) 20 NLR at p.52 and Godwin Nwankwere v. Adewunmi (1967) NMLR 45.

It was the submission of respondent’s counsel that the action of the appellant in this case was caught by the provision of the Public Officers Protection Law as the action was commenced well after three months of the act complained of. He further submitted that on the authorities of this Court, malice is completely irrelevant when considering the applicability of the Law which is essentially a statute of limitation.

Section 2(a) of the Public Officers Protection Law, Cap. 114 Laws of Lagos Slate of Nigeria, 1973, reads as follows:-

“2. Where any action prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law. duty or authority, the following provisions shall have effect:-

(a) the action, prosecution or proceedings 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 convicted prisoner, it may be commenced within three months after the discharge of such person from prison.”

Now it is a well established principle of interpretation that if the words used in a legislation are plain and unambiguous they should be given their ordinary meaning. See Okumagba v. Egbe (1965) 1 All NLR. 62. It is therefore not the function of a Judge to import into a statute words which would do violence to the provisions of the law. I find no element of good or bad faith contained in this enactment. The law provides quite clearly that once it is shown that the act complained of was done by the officer in the course of his official duty, action “shall not lies unless commenced within three months.” It is common ground that at the material time when the appellant was detained, the respondent was a public officer and he acted in that capacity when he issued a detention order. It is also not in dispute that the appellant commenced this action against the respondent well after the period of three months allowed by the law. Since the action was not commenced within the stipulated period. it automatically became extinguished. This was the decision of this Court in Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549, where at page 569, Karibi-Whyte, J.S.C. said:

“Again where the defendant has raised an unanswerable plea of protection under the Public Officers Law on the uncontested facts as 2nd respondent has done in this case, there is absolutely no basis for prying into the conduct of such a defendant which gave rise to the action. The Court of Appeal need not have gone into the question of whether malice was a relevant consideration in determining the liability of the 2nd respondent. The issue before the Court was whether the action was maintainable. It is not whether the 2nd respondent was liable.”

This statement of the law was adopted and followed by this Court in Egbe v. Alhaji (1990) 1 NWLR (Pt. 128). It was the unanimous decision of this Court in that case that an action is not maintainable against a public officer in respect of an injury done if it is brought after the period of three months. Such an action is statute – barred although it must be pointed out that injuries committed by public officers without authority are not protected by the law.

As to whether there is a conflict in the decision of this Court in Egbe v. Adefarasin (supra) and Nwankwere v. Adewunmi (supra) which would justify a departure from the latter case, I am satisfied there is none as was clearly pointed out in the lead judgment of my learned brother, Uwais, J.S.C.in Egbe v. Adefarasin (supra) case. In my view therefore no foundation has been laid for this Court to depart from its decision in Egbe v. Alhaji & Ors. (1990) 1 NWLR 546. See Nofiu Surakatu v. Nigerian Housing Development Society Ltd. (1981) 4 S.C. 26: Oduola & Ors. v. Coker & Ors. (1981) 5 S.C. 197 and Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 S.C. 158 at p.298; (1983) 1 SCNLR 296: (1985) 6 NCLR 1.

Finally the appellant raised the point in his brief that the decision of this Court in Egbe v. Adefarasin (supra) was wrongly made because of the erroneous view of this Court that the Public Officers Protection Law is a statute of limitation. At p.23 of the brief, the appellant put the matter as follows:-

“The mistake in this judgment is that the Supreme Court has treated this enactment on the same footing as a limitation enactment which it is not, it uses in its judgment the words “statute – barred” which properly belong to the domain of statutory limitations than to protection of Public Officers.”

In his reply learned counsel to the respondent submitted that the reasoning of this Court in Egbe v. Adefarasin (supra) is in line with several decisions of the English Courts and accepted principles of statutory interpretation. He cited in support the case of Gregory v. Torquay Corporation (1911) 2 KB 556, where it was held, when interpreting the provisions of the Public Authorities Protection Act, 1893 of England, an act similar to our Public Officers Protection Law, that the Act is a statute of limitation being an Act which imposes a limitation of time upon an existing right of action. In that case at p.559-560 of the Report, Pickford, 1. stated as follows:-

“It is not, however, necessary to consider that point, for the Public Officers Authorities Act does not confer any new rights of action. It seems to me that Prima facie any statute which imposes a limitation of time upon an existing right of action is properly called a statute of limitations. It is necessary therefore in each case to look at the particular statute and see what its effect is. Now in the Public Authorities Protection Act the only practically operative one of its five sections is the first, and the whole object of that section is to place restrictions of various kinds upon rights of action which a person would have apart from that statute against a public authority for any wrongful acts of its servants……………it therefore presupposes an existing right of action and places upon it a limitation of time, namely six months. Prima facie, therefore, the Act ought to be considered as a statute of limitation and I can see nothing in the rest of the Act to prevent its being so considered.”

I am therefore unable to accept the contention of the appellant that the Public Officers Protection Law is not a statute of limitation.

I see no merit in any of the points urged by the appellant in this Court to justify a reversal of the decision of Court below. Consequently the appeal fails in its entirety and it is accordingly dismissed with N1,000.00 costs against the appellant and in favour of the respondent.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Kawu, J.S.C. I entirely agree with the judgment. I too see no merit in the appeal and it is hereby dismissed with N1,000.00 costs to the respondent.

A. G. KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother Kawu, J.S.C. in this appeal. I agree entirely with his reasoning and with his conclusion dismissing the appeal. 1also will and hereby do dismiss the appeal of the appellant for the reasons given in the judgment of Kawu, J.S.C.

Appellant shall pay N1,000.00 as costs to the respondents.

S. M. A. BELGORE, J.S.C: The Public Officers Protection Law is clear as to its purport.

Once a public officer is alleged to have done some wrong in the execution of his public duty as such public officer, he can be sued only within three months of the action complained of. This is only in matters strictly civil. The fact that a crime is alleged does not take the civil matter out of the ambit of civil litigation. There is no time limit for prosecuting an officer for crime even if that crime was committed in course of public duty.

The respondent is not being prosecuted for crime and as such being a civil matter and was not commenced against him within three months of the act complained of the action is statute barred. It is for the above reason, and fuller reasons in the judgment of Kawu, J.S.C. that I entirely agree with, that I also dismiss this appeal with N1,000.00 costs to the respondent.

Other Citation: (1992) LCN/2517(SC)