FRED EGBE VS. M.D.YUSUF (1992)

FRED EGBE VS. M.D.YUSUF

(1992) LCN/2517(SC)

In the Supreme Court of Nigeria

Friday, June 26, 1992


Case Number: SC. 212/1988

 

JUSTICES:

UWAIS, JUSTICE, SUPREME COURT

KARIBI-WHYTE, JUSTICE, SUPREME COURT

KAWU, JUSTICE, SUPREME COURT

BELGORE, JUSTICE, SUPREME COURT

WALI , JUSTICE, SUPREME COURT

OLATAWURA, JUSTICE, SUPREME COURT

OMO, JUSTICE, SUPREME COURT

 

BETWEEN

APPELLANTS

FRED EGBE

 

AND

RESPONDENTS

FRED EGBE

 

RATIO

PUBLIC OFFICERS PROTECTION

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.” Per BELGORE JSC.

  1. KAWU, J.S.C. (Delivering the Leading Judgment): 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.

    A. B. WALI, J.S.C.: I have been privileged to read in advance a copy of the lead judgment of my learned brother Kawu, J.S.C. I entirely agree with his reasoning and the conclusion that the appeal has no merit.
    The main issue involved in the appeal is the interpretation of Section 2 of the Public Officers Protection Law, Cap. 114, Laws of Lagos State of Nigeria, 1973, Vol. VI. The section provides 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 continuance of damage or injury, within three months next after the ceasing thereof.
    This section has been interpreted by this Court in Fred Egbe v. Abubakar Alhaji & Ors. (1990) 1 NWLR (Pt.128) 546; (1990) 3 S.C.NJ 41, where Uwais J.S.C., after reviewing cases decided dealing with acts done by public officers in the course of execution of duties imposed on them by law, went on to state-
    “Now in Fred Egbe v. Justice Adefarasin & Another (supra); (1985) 1 NWLR (Pt.3) 549 the plaintiff after instituting the action filed his statement of claim. The defendants before filing their statement of defence brought an application under inter alia Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 of the Laws of Lagos State, 1973 praying that the endorsement to the writ of summons be struck out and the action be dismissed on the ground that the 1st defendant, as a Judge, was protected from the action under the provision; of section 88(1) of the High Court Law, Cap 52 of the Laws of Lagos State, 1973 and section 2(a) of the Public Officers Protection Law, Cap. 114; and secondly, the 2nd defendant, as Director of Public Prosecution, was protected under the provisions of section 2(a) of the Public Officers Protection Law, Cap. 114. The application was heard and prayers were granted by the trial Judge who, consequently, dismissed the action in limine. The plaintiff appealed to the Court of Appeal against the decision of the trial Judge arguing that the protection under sectlon 2(a) of the Public Officers Protection Law could not avail the 2nd defendant because he, like the 1st defendant, acted maliciously and in bad faith. The appeal was dismissed by the Court of Appeal and the plaintiff appealed further to this Court. In again dismissing the appeal, this Court held (per Karibi-Whyte, J.S.C.) as follows on p. 569-
    ‘Again where the defendant has raised an unanswerable plea of protection under the Public Officers Protection 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 this 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…….. As I have already stated there was no cause of action against the 2nd respondent in respect of which he is answerable to the appellant. The cases of Inspector-General of Police v. Olatunji (supra) and Nwankwere v. Adewunmi (1967) NMLR at 45 are all irrelevant to the determination of this appeal.’
    From the foregoing it is clear that whilst the decisions in the case of Olatunji (supra) and Nwankwere (supra) that malice or bad faith would vitiate protection under section 2(a) of the Public Officers Protection Law, Cap. 114, it was decided in Fred Egbe v. Justice Adefarasin & Anor, that it would not if the defence was raised in limine, that is before evidence was heard in the case because at that stage the issue is not whether the defendant is liable of the action but whether the action is at all maintainable against the defendant.”
    He then referred to and quoted a passage in Akinsanya v. U.BA. Ltd. (1986) 4 NWLR (Pt.35) 273, where the learned Justice said:-
    “The principle on which this Court will depart from and overrule its decision has been well stated in a number of cases. The underlying consideration being that the decision has been impeding the proper development of the law or has led to results which were unjust or which are contrary to public policy.”
    and then concluded:
    “What has emerged from all that has been stated above may be summarised as follows. In a civil action, where the defendant invokes, in limine, the procedure under Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52, to claim protection under section 2(a) of the Public Officers Protection Law, Cap. 114 (which is, indeed, a defence by way of limitation of action) it is, as laid down in Fred Egbe v. Justice Adefarasin & Anor. (supra), not proper for the trial Court to infer or conclude from the pleadings that the protection afforded the defendant by the law, has been vitiated by malice or bad faith. For what the trial Court is obliged to decide at that stage is whether the action is maintainable and not whether the defendant is liable. The proof of liability can only come about after evidence in support of the pleadings has been adduced by the parties or the plaintiff, as the case may be. The defendant has, of course, the burden to show, at the time of making the application under Order 22 rule 4 that the cause of action arose from the act complained of was carried out, in the course of performance of his duty and that the action was not instituted before the expiration of the three months prescribed by the Public Officers Protection Law.”
    I entirely agree with the learned Justice, particularly on his interpretation of section 2 of the Public Officers Protection Law (supra).
    It is the general principle of interpretation of statutes and instruments that in the absence of an ambiguity, no exposition shall be made which is opposed to the express words of the statute or instrument. A Court, of law will not put any interpretation on any enactment which is contrary to its plain meaning. If the words are expressly clear, even inconvenience will not justify the Court to depart from their ordinary meanings. See Charles Robert Leader & Henrietta Ada Leader v. George F. Duffey & Amyatt Edmond Ray (1888) 13 AC 294 at 301 where Lord Halsbury L.C., in construing a Marriage Settlement said:-
    “…… Whatever the instrument, it must receive a construction according to the plain meaning of the words and sentences therein contained. But I agree that you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must. if you can ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it. But it appears to me to be arguing in a vicious circle to begin by assuming an intention apart from the language of the instrument itself, and having made that fallacious assumption to bend the language in favour of the assumption so made.”
    It is for these and the fuller reasons well stated in the lead judgment of my learned brother Kawu, J.S.C. and which I hereby adopt as mine, that I too came to the same conclusion that the appeal has no merit. I also dismiss it with N1,000.00 cost to the respondent.

    E. O. OLATAWURA, J.S.C: I had a preview of the judgment of my learned brother Kawu, J.S.C. just delivered. I agree with his reasoning and conclusion. I will dismiss this appeal.
    My learned brother Kawu J.S.C. has stated the issues arising out of the grounds of appeal, the facts and the reasons for the decisions of the lower Courts. I will only make reference to some of them if only to emphasise some-points already articulated in the lead judgment.
    It appears to me that the appellant is inviting this Court not only for a reconsideration of the decision of this Court in Fred Egbe v. Alhaji Abuhakar Alhaji & 2 Ors. (1990) 1 NWLR (Pt. 128) 546 where the interpretation of section 2(a) of the Public Officers Protection Law Cap. 114, Laws of Lagos State of Nigeria was considered, but also to overrule it.
    ‘The cases referred to and relied upon i.e. Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549; Nwankwere v. Adewunmi (1967) NMLR 48 and Inspector-General of Police v. Olatunji 21 NLR 52 came up for consideration in Egbe v. Alhaji Abubakar Alhaji & 2 Ors. (supra). I am fortified in my view because the 1st question for determination regarded the earlier interpretation as confusing. The first question for determination states:- .
    “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”
    Before setting out the relevant provision of section 2(a) of the Public Officers’ Protection Law Cap. 114, Laws of Lagos State, I need to remind myself of the claim filed by the Appellant. It is:
    “The plaintiff’s claim against the defendant is for 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.”
    It is necessary to say the details of each item of claim were clearly set out in the pleading.
    What led to this appeal had its genesis in the motion filed by the respondent (then defendant) and dated 18th day of January 1984 asking that the appellant’s action be struck out on the ground that the respondent was a public officer whose actions were protected by section 2(a) of the Public Officers Protection Law Cap. 114 Laws of Lagos State. The motion was dismissed. Earlier in the Amended Statement of Defence, the Defendant in paragraph 41(g) pleaded thus:-
    “41. The defendant will contend at the trial that the defendant was a public officer – a Police Officer.
    (g) The action is statute-barred under section 2(a) of the Public Officers Protection Law Cap, 114 Laws of the Lagos State of Nigeria.

    PARTICULARS OF SPECIAL DEFENCE
    (a) The plaintiff’s right of action occurred on or before 1974/78
    (b) The plaintiff did not take action until the 19th day of November 1979.”
    Section 2 of the Public Officers Protection Law Cap, 114 Laws of the Lagos State of Nigeria 1973 provides:-
    “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 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 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.”
    As said earlier the motion asking that the action brought by the plaintiff be struck out was dismissed by Oladipo Williams, J. An appeal against that decision was upheld by the Court of Appeal.
    I have already stated the issue which is germane to this appeal as set out by the Appellant.
    The amended brief filed by the appellant has traced the history of the earlier decisions already set out above. In his oral submissions which were virtually a repetition of the submissions in his amended brief Mr. Egbe who appeared in person submitted further that once the action of the respondent involved a criminal offence it cannot be protected by the Act and that the “immunity” conferred is not absolute.
    In his own oral reply Mr. Seyi Sowemimo described the Public Officers Protection Law as a Statute of Limitation. Learned counsel urged the Court to confirm our decision in Egbe v. Adefarasin (supra) and Egbe v. Abubakar Alhaji (supra). In his interpretation of the Act in question Mr. Sowemimo laid emphasis on the time limit under the Act and that it would be wrong for the appellant to blame his failure to bring the action within the stipulated time. Further, learned counsel submitted that to make bad faith a condition precedent is to read into the Act words of limitation which are not in the Act.

    Mr. Egbe has carefully stated the facts, the law in respect of each case, the pronouncements by the Judges right from the High Court to the Supreme Court. As at the time the judgment in this appeal was delivered by the lower Court on 10th February 1987, Egbe v. Alhaji &2 ors. (supra) had not been heard. The judgment was delivered by this Court on 2nd March, 1990. It was the judgment of a full Court. All earlier cases: I.G.P. v. Olatunji; Nwankwere v. Adewunmi; Egbe v. Adefarasin were cited and referred to in that judgment. Consequently Mr. Egbe was aware of this fact when he filed his amended appellants brief on 2/6/91. He dealt fully with these cases in paragraphs 34-55 of his brief. Mr. Egbe in his criticism of the latest decision of the Court as at the time he filed his brief said (paragraph 47)
    “If the question is whether the action is maintainable then the defence should succeed whenever it is raised. The mistake of 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. All cases cited in the judgment which may be repeated here for clarity involve the construction of limitation enactments and are clearly inapplicable. The cases are (1) Obiefuna v. Okoye (1961) All NLR 257 (2) Letang v. Cooper (1964) All ER at 929 (3) Riches v. D.P.P. (1973) 2 All ER 935.”
    The relevant question now is if the action is not to be brought after a lapse of specific term, what protection does it offer

    From the reasoning and conclusion of Mr. Egbe, it is a qualified protection. I think the answer that it is an act which gives an unqualified protection can be found in the case of Freeborn v. Leeming (1926) 1 K.B. 160. That was a case where the defendant a qualified medical officer was negligent in failing to diagnose the nature of the injury suffered by the plaintiff and also failed to give the plaintiff, if properly given at the time of the injury, what would have cured him. The plaintiff later consulted another doctor who diagnosed correctly the nature of the injury, but as at that time it was too late too apply the necessary remedy. The plaintiff’s injury became permanent. He sued after the statutory period of six months. The defendant relied on the Public Authorities Protection Act of 1893 which is in pari materia with the Public Officers Protection Law of Lagos State under consideration. The learned Judge Salter J. said on page 164 of the report:-
    “The words of the Act seem to me to be very plain. It is very easy to imagine cases of hardship and it may well be that by the time a cause of action has accrued, the happening of the damage as a result of the act, it may be too late to sue. But it must be remembered that this Act is obviously intended for the protection of Public Officers who are defendants. It assumes misconduct, and it is designed to protect public officers even when they have been guilty of misconduct. ”
    I respectfully adopt these words. I think this is an answer to the anxiety expressed by Mr. Egbe in respect of what he described as “confusion” emanating from the decisions. To read words which were not intended into a statute is to do violence to a clear and unambiguous language of the Act. The words of S.2(a) of the Public Officers Protection Law are plain. In interpreting a statute one does not play with words. The “misconduct” relied upon notwithstanding, any right of action which the appellant failed to take within the statutory period is barred.

    Nothing stops this Court from overruling its decision if and when it is shown to have been wrongly decided. We cannot change existing law. We apply the law. If it is incorrectly applied, such a decision must be changed. The flame of justice must be kept alive, be kindled and rekindled through reasoned judgments that brush aside technicalities which will be a clog in the attainment of justice. Judges are not and must not be insensitive to injustice but will never allow sentiments to guide them so as to overrule precedents. Where there is a just cause to overrule or overturn a decision, this Court being a Court of last resort will not hesitate to do so. We are here to terminate injustice, to right the wrong but certainly not to change well laid down principles of law and procedure where there is no cause for it.
    In any attempt to distinguish cases counsel must draw a line between criticisms and castigation.
    There is the development of the law through constructive and articulate criticisms of judgments, but castigation tends to confuse reasoning with conclusions.
    It is for these reasons and the fuller reasons given by my learned brother Kawu, J.S.C. that I will also dismiss the appeal with costs assessed at N1,000.00 in favour of the respondent.

    U. OMO, J.S.C: I have had a preview of the judgment just delivered by my learned brother Kawu, J.S.C. I am in full agreement with his conclusion that this appeal be dismissed, and also his reasons for arriving at that conclusion. I only intend to make a few brief comments of my own.
    After hearing in the action filed by the appellant in the Lagos State High Court claiming N5,000,000 special and general damages for the torts of false imprisonment, malicious detention, malicious arrest, injurious falsehood and conspiracy, had commenced, the respondent filed a motion for an order that it be struck out because the writ of summons/statement of claim discloses no cause of action, on the grounds:-
    (a) that the detention of the plaintiff was made pursuant to the Armed Forces and Police (Special Powers) Decree 1967 under Detention Order No.230 of 30/3/78 and Detention Orders (Bar to Civil Proceedings) Decree 1969.
    (b) that the defendant was at the material time a public officer, to wit, an Inspector-General of Police, and therefore entitled to the protection of the Public Officers Protection Law Cap. 114 Laws of Lagos State, under which the present action is time-barred, having been commenced outside the three months limitation period.
    The learned trial Judge dismissed this application on the grounds that the facts deposed to in the pleadings suggest acts complained of were done outside the scope of respondent’s official authority which could lead to the conclusion that he is not covered by the Decrees relied on. He therefore concluded that it was necessary to take all the evidence before arriving at a proper decision on the objections raised. The respondent appealed against this decision to the Court of Appeal.
    The Court below dismissed the appellants appeal holding that the jurisdiction of the High Court had been ousted by the Detention Orders (Bar to Civil Proceedings) Decree 1969. It also decided that having failed to bring the present action within 3 months of the wrongful actions complained of, the respondent is protected by Section 2(a) of the Public Officers Protection Law from same. The action is not maintainable, and the issue of liability does not arise vide Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549. Further dissatisfied the appellant has appealed to this Court.

    The grounds of appeal and the issues for determination have been set out in the judgment of my learned brother Kawu, J.S.C. and I do not intend to reproduce them in this short judgment.
    The issues raised in this appeal have been canvassed and re-canvassed in decisions of this Court to wit, Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549; and Egbe v. Alhaji ann error in holding that the plaintiff/appellant has no cause of action against the respondents, having brought the action outside the three months period of limitation prescribed in the Public Officers Protection Law, Cap. 114 Lad 3 Ors. (1990) 1 NWLR (Pt.128) 546. In the latter case the issues arising for determination in the appeal are set out in p.548 of the report as follows:-
    “Issues:
    1. Whether the learned Justices of the Court of Appeal were iws of the Lagos State of Nigeria.
    2. Whether the learned Justices of the Court of Appeal were to inquire into and determine the motives of the defendants/respondents as a prerequisite in availing them the protection of Public Officers Protection Law.
    3. Whether the learned Justices of the Court of Appeal were correct in holding that the cases of Inspector General of Police v. Olatunji 21 NLR 52 and Nwankwere v. Adewunmi (1967) NMLR 48 are not relevant in the determination of the present case.”
    These three issues (questions) were answered in the negative in respect of the first two and positive in respect of the third. On the first two issues and interpretation of Section 2(a) of the Public. Officers Protection Act, Obaseki J.S.C. stated as follows:-
    “The importation of malice and good faith into the section by the appellant defeats the intention of the law makers and does violence to the section. It is the law that where an act which has caused damage is done in the pursuance of any law or public duty an injured party can recover damages or other relief whether the act was done in good faith or not. The arguments of the appellant have not established any case for departing from the decision in Fred Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549 (supra). It is otherwise where the act is not in pursuance of any law or public duty. The learned trial Judge was therefore wrong to have overruled the objection and rejected the plea. The Court of Appeal was perfectly justified in law to have reversed the decision of the High Court and dismiss the action. The appeal of the appellant to this Court lacks merit. The appellant was not only barred from instituting the action but also by virtue of the fact that his action does not lie,he has no cause of action.”
    On the third issue, it was held that the decision in Egbe v. Adefarasin (supra) is not in conflict with those of Nwankwere v. Adewunmi (1967) NMLR 48; and Inspector General of Police v. Olatunji 21 NLR 52. In Egbe v. Adefarasin (supra) the acts complained of were done by the public officers in pursuance and execution of their constitutional and statutory duties, while in the cases of Olatunji (supra) and Nwankwere (supra) – the facts as disclosed showed that the acts of the public officers concerned were contrary to or have no connection with their duties in the public offices which they have held hence they could not take advantage of the protection of the Public Officers Protection Law. The invitation to overrule Egbe v. Adefarasin (supra) on the ground that it conflicts with Nwankwere and Olatunji (supra) was refused in Egbe v. Alhaji (supra). The same invitation has been extended in this appeal. Appellant has insisted in argument in his brief that the cases of Nwankwere and Olatunji show that motive and good faith are prerequisites for the protection of the Public Protections Law. These submissions have been considered in the judgment of Uwais, J.S.C. in Eghe v. Alhaji (supra – vide p.572 para. A – p. 573 para. A). I entirely agree with the views therein expressed which are a complete answer to the submissions of the appellant.
    I agree that no new submissions have been canvassed to justify this Court departing from its decision in the cases of Egbe v. Adefarasin (supra) and Egbe v. Alhaji (supra) vide Mrs. Bucknor-McLean & Or. v. lnlaks Ltd. (1980) 8-11 S.C. l (23/5); Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 S.C. 158; (1983) 1 SCNLR 296; (1985) 6 NCLR 1.

    For these and the other reasons in the judgment of my learned brother Kawu J.S.C. which I adopt as mine, I also dismiss this appeal. I award N1,000.00 costs to the respondent.
    Appeal dismissed.

 

Appearances

Appellant in person For Appellant

 

AND

Seyi Sowemimo For Respondent

 

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