Fred Egbe V. Alhaji Abubakar Alhaji & Ors. (1990)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C. 

On the 20th day of December, 1978, the appellant brought an action for libel in the High Court of Lagos State against the respondents claiming, as per his amended writ of summons, as follows-

“The plaintiff’s claim against the defendants is for the sum of FIVE HUNDRED THOUSAND NAIRA (N500,000.00) being general and special damages suffered as a result of a conspiracy by the defendants and a libel of the plaintiff by the first and second defendants in a letter dated 21st March, 1978 addressed by the first and second defendants to the Inspector General of Police and repeated by the third defendant to the Commissioner of Police Department on 22nd day of March, 1978.”

The facts of this case, as gathered from the pleadings exchanged by the parties are simple. They are briefly thus. At the time material to this case the Federal Ministry of Trade was made responsible for insurance as a subject, negotiations began between the ministry and an insurance company called American International Insurance Company (Nigeria) Limited to enable the Federal Government to purchase some shares from the company, in addition to those that the Federal Government was previously holding. The plaintiff was the company’s legal adviser. Just before the negotiations to purchase the additional shares were completed, certain information came to the possession of the 1st respondent as permanent secretary to the Federal Ministry of Trade. The 3rd respondent, who was the legal adviser to the ministry, was instructed by the 1st respondent to write a letter to the 2nd respondent, who was then the Inspector General of Police, on the information received. The letter written by the 3rd respondent reads as follows-

FEDERAL MINISTRY OF TRADE,

LEGAL DIVISION,

LAGOS.

21st March, 1978.

The Inspector-General of Police,

Force Headquarters,

Moloney Street,

Lagos.

Report of Investigation into the Activities of American International Insurance Company (Nigeria) Limited (AIIC)

Further to this Ministry’s letter Ref. No. TS.526/Vol.2/315 of 9th March, 1978 on the subject captioned above, I am directed to bring to your attention an information divulged in confidence to the Permanent Secretary that AIIC sometime ago paid the sum of N450,000.00 to Mr. Fred Egbe on behalf of an estate agency company which sum was not guaranteed by any property, real or personal, and no document prepared to show the terms and conditions relating to payment.

2. The name and address of the informant will be furnished on request.
3. Mr. Fred Egbe is the legal adviser of AIIC and a personal friend of Mr. L.D. Lafevre, the managing director. Their relationship appears to have transcended that of lawyer and client.
4. The purpose of this letter is to invite you to investigate this information which if proved to be true; a clear case of stealing would have been established.

(Signed) S.S. Ojomo,

Legal Adviser,

for Permanent Secretary.”

After the exchange of pleadings, the 2nd and 3rd respondents brought a motion in the High Court on the 15th day of February, 1984, pursuant to the provisions of order 22 rules 3 and 4 of the High Court of Lagos Civil Procedure Rules, 1972 praying that court to dismiss the plaintiffs action on, inter alia, the following grounds-

“(a) That the 2nd defendant/applicant was at the material time a public officer under the Public Officers Protection Law, (Cap.114) of Laws of Lagos State, (1973) and the Permanent Secretary in the Federal Ministry of Trade.

(b) (i) That the 3rd defendant/applicant was at the material time a public officer under the Public Officers Protection Law (Cap. 114) of Laws of Lagos State (1973) and the Inspector General of Police.

(ii)………………………..

The motion was heard by Olusola Thomas J. who, in his ruling dismissing it, observed thus-

“In the matter before me, the plaintiff’s case as can be gathered from his pleadings is that the two defendants falsely conspired to accuse him with criminal offence or offences and further published a libelous letter which injured his character, credit and reputation in the way of his occupation or employment. On the face of the pleadings, these acts constituting the cause of action may possibly have been done not in pursuant of any law or public duty and not in respect of execution of alleged neglect or default of such laws or public duty. The acts cannot therefore be presumed to have been so done or intended under the law. The issue will remain unsolved until evidence from either or both parties is adduced at the trial.”

After adverting to the English decisions in Cross v. Rix 29 T.L.R. 85 and Scamell & Nephew Ltd. v. Hurley (1929) 1 K.B. 419 and the Nigerian decisions in I.G.P. v. Olatunji, 21 N.L.R. 52 and Godwin Nwakwere v. Joseph Adewunmi, 1967 N.M.L.R. 45, learned trial Judge concluded the ruling as follows –

“The principle running through the gamut of these authorities, foreign and local, is that where the act of a person claiming to be entitled to protection under section 2(a) of Cap. 114 is shown to be apparently illegal, it is a question of fact whether the illegal act was 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 court must receive evidence from either or both parties in order to determine whether the person is so protected. It will be absurd law, other than the limitation law prescribing period of action for different actions where every injuria, that is, an infringement of another’s legal right; whether justified or not by law or duty shall be given a blanket cover of immunity. The defendant’s application is misconceived. It is dismissed and the costs shall be in the cause.”

Aggrieved by the ruling, the 1st and 2nd respondents appealed against it, to the Court of Appeal. Upholding the appeal by reversing the decision of the High Court, Kutigi J.C.A. (with whom Ogundere and Kolawole JJ.C.A. agreed) stated as follows –

“All that the respondent says is that the appellants were actuated by malice or bad faith and that they have no protection under section 2(a) of Cap. 114. This is certainly not acceptable. “Malice” or “bad faith” should not be imported or read into the section.

It is also clear from the pleadings that the appellants committed the act complained of on 21/3/1978 and the respondent filed his writ of summons in respect thereof on 20/12/78 a period of about nine months. I agree with Chief Sowemimo that the action against the appellants was statute barred and that the respondent has lost his cause of action,Karibi-Whyte, J.S.C., succinctly put it in Egbe v. Adefarasin (supra) at p.568 thus-

The general principle of law is that where the law provides for the bringing of action within a prescribed period, in respect of a cause of action accruing to a plaintiff, proceedings shall not be brought after the time prescribed by statute see Obiefuna v. Okoye (1961) 1 A. N.LR. 357. An action brought outside the prescribed period offends against the provision of the section and does not give rise to a cause of action.”

So it is in this case. Applying the above principles of law to this case it is manifest that the respondent has no cause of action against the appellants having inter alia brought the action after three months from the time the cause of action arose.

For the reasons already stated, this appeal succeeds and it is hereby allowed. The ruling of Olusola Thomas, J., in suit No. LD/1284/78 dated 21st May, 1984 is hereby set aside. The case is accordingly struck out.”

The appeal before us is from that judgment of the Court of Appeal. The notice of appeal contains only one ground of appeal. The ground reads-

“The learned trial (sic) Justice 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

1. A person who acts maliciously cannot under any circumstances be said to have acted ‘in the course of his official duty’ or ‘within his official duty.’
2. The authority of Nwankwere v. Adewunmi 1967 N.M.L.R. at page 45 was misinterpreted by the learned Justices of Appeal in that the court sought to limit the application of that authority to malicious acts regarded as criminal. The defence was raised in civil proceedings in Nwankwere’s case, whilst on the other hand, the actions and motives of the respondents in this appeal are just as criminal as they were in Nwankwere’s case.”

Briefs of argument were filed and exchanged by the parties with the 1st and 2nd respondents filing a joint brief of argument. As discernable from the appellant’s brief of argument, only one question for determination has been formulated by the appellant and it reads-

“The question that arises for determination in this appeal is that since all three defendants have now admitted that their actions were conspiratorial and malicious see Foko v. Foko & Ors. (1968) N.M.L.R. at 441, can they still claim protection under the statutory defence enshrined in the Public Officers Protection Law, Cap.114″

The respondents pose in their different briefs questions for determination which are wider in scope than the sole question contained in the appellant’s brief. The joint brief of the 1st and 2nd respondents poses three questions, viz-

(i) Whether the plaintiff/appellant’s action is maintainable given the fact that it was brought outside the three months period of limitation prescribed in the Public Officers Protection Law, Cap.114, Laws of Lagos State of Nigeria. As a coronary to this main question, two further questions which need to be resolved are:-

(ii) Whether it is open to a court to conduct an investigation into the motives of the defendants/respondents’ in this case before investing them with the protection of the said Public Officers Protection Law

(iii) Whether the authority of Nwankwere v. Adewunmi (1967) N.M.L.R. 48 is relevant to the facts of the present case”

The 3rd respondent was not a party in the Court of Appeal but has been made so in this appeal. The questions formulated by the 3rd respondent read as follows:

“(a) Whether the learned Justices of the Court of Appeal were in 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 Laws Cap.114, Laws of the Lagos State of Nigeria.

(b) 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 the Public Officers Protection Law Cap.114.

(c) Whether the learned Justices of the Court of Appeal were correct in holding that the cases of I.G.P. v. Olatunji 21 N.L.R. at 52 and Nwankwere v. Adewunnmi (1967) N.M.L.R. 48 are not relevant in the determination of the present case.

It is settled practice that questions for determination must be related to the ground or grounds of appeal filed in any appeal. See A-G., Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 N.W.L.R. (Pt.66) 547; Oniah v. Onyia (1989) 1 N.W.L.R. (Pt.99) 514 at p.527; Osinupebi v. Saibu (1982) 7 S.C. 104 at p.110; Western Steel Works Limited v. Iron & Steel Workers Union of Nigeria (1987) 1 N.W.L.R. (Pt.49) p.304; Ugo v. Obiekwe (1989) 1 N.W.L.R (Pt.99) 566 at p.580 and Okpala v. Ibeme (1989) 2 N.W.L.R. (Pt.102) 208 at p.220. In the present case, it appears to me that the questions framed by the 3rd respondent are more comprehensive and, therefore, preferable. Consequently, I adopt them for the purpose of determining this appeal.

The gravamen of the appellant’s contention both or any and in his brief is that a public officer cannot benefit from the protection afforded by section 2(a) of the Public Officers Protection Law. Cap. 114 of the Laws of Lagos, 1973, if it is shown that the public officer acted maliciously or in bad faith. This interpretation of section 2(a) of the Law is supported by the decision of this court in Nwankwere’s case (supra) and the decision in the English case of Scamen & Nephew Ltd. v. Hurley (supra).

However, in the case of Fred Egbe v. Hon. Justice Adefarasin & Anor. (1985) 1 N.W.L.R. (Pt.3) 549 the Supreme Court contrarily held that when the protection under the law is invoked, the question whether the act which the plaintiff complains of was performed maliciously or in bad faith is irrelevant. Thus, there is a conflict between the two decisions of this court. The appellant, therefore, submitted that the decision in Fred Egbe v. Hon Justice Adefarasin & Anor, is questionable and unreliable on the interpretation of section 88(1) of the High Court Law of Lagos State and section 2(a) of the Public Officers’ Protection Law, Cap.114. He therefore urged us to hold that malice vitiates the defence under section 2(a) of the Public Officer’s Protection Law. Learned counsel for the 1st and 2nd respondents, Mr. Seyi Sowemimo, contends in his brief of argument that it is clear from the actions based on the letter which was alleged to be libellous, that the respondents acted in pursuance or intended pursuance of their public duties. He submitted that the respondents qualified for the protection accorded to public officers by the Public Officer’s Protection Law, Cap. 114 and since the appellant’s action was brought after the expiration of three months prescribed by the law, the action was statute barred by virtue of the provisions of section 2(a) of the law. Learned counsel relied on the decision of this court in Fred Egbe v. Hon. Justice Adefarasin & Anor. (supra) to submit that the decisions in the cases of Nwankwere (supra) and I.G.P. v. Olatunji (supra) which established that motive of the public officer’s action is to be determined before it can be decided that the protection under the law is available to the public officer, are irrelevant once the defence set up by the public officer is unanswerable. He canvassed that malice or bad faith should not be imported when interpreting the provisions of section 2(a) of the Public Officer’s Protection Law, Cap.114 and that the section should be given its ordinary meaning. He buttressed the argument by quoting page 117 of Craises on Statute Law, 7th Edition. Learned counsel further submitted that this court should not depart from its decision in Fred Egbe v. Hon. Justice Adefarasin & Anor. because no basis has been established by the appellant to justify the departure. He cited Yonwuren v. Modern Signs Nig. Ltd. (1985) 1 N.W.L.R. (Pt.2) 244 at p. 251 per Kazeem, J.S.C., in support of the submission.

Finally, learned counsel for the 3rd respondent argued in the 3rd respondent’s brief and made submissions which are almost on all fours with the argument advanced by learned counsel for the 1st and 2nd respondents. In addition, learned counsel drew attention to the fact that in Fred Egbe v. Hon. Justice Adefarasin & Anor. (supra), the 1st respondent therein was, as a Judge, entitled to both the protections afforded by section 88(1) of the High Court Law and section 2(a) of the Public Officers Protection Law, Cap.114, whilst the 2nd respondent therein, as Director of Public Prosecutions, was only entitled to the defence under section 2(a) of the Public Officers Law, Cap. 114.

Section 2(a) of the Public Officer’s Protection Law, Cap.114 of the Laws of Lagos State, 1973, as relevant, reads thus-

“2. Where any action, prosecution, or other proceeding 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 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;

Now a careful perusal of the section will show that its provisions apply to an action being brought against a public officer in relation to any act done by the public officer either-

(a) In pursuance or execution or intended execution of any law; or

(b) In pursuance or execution or intended execution of any public duty or authority; or

(c) In respect of any alleged neglect or default in the execution of any law, duty or authority.

If the action is brought or commenced after the expiration of three months after the commission of the act being complained against, then the action –

(i) Cannot be instituted; and

(ii) If instituted shall not lie against the public officer.

The same applies to any prosecution or other proceedings against a public officer for any act committed by the public officer in any of the circumstances enumerated under (a) or (b) or (b) above.

Does a proper interpretation of the section then permit or admit allegation of malice or bad faith This question was answered in the affirmative in the cases of I.G.P. v. Olatunji 21 N.L.R. 52, by Ademola, J. (as he then was) and Godwin Nwankwere v. Joseph Adewunmi (1967) N.M.L.R. 45 at p.48 decided by this court. In Olatunji’s case (supra) the protection under the law (ordinance) was raised as a preliminary objection before any evidence was heard in the case and the trial Magistrate Grade 1, upheld the objection. On appeal to the High Court, Ademola, J., (as he then was) relied on English authorities, namely, Morgan v. Palmer (1824) 2 B & C 729; Irving v. Wilson (1791) 4 Term Rep: 485; Pearson v. Dublin Corporation (1907) A.C. and Scammell & Nephew Ltd. v. Hurley (1929) 1 K.B. 429 and the then Gold Coast (i.e. Ghana) case of Commissioner of Police v Dennis, (unreported) judgment delivered by McCarthy and Turbett, JJ., to hold that to claim the protection under section 2(a), the public officer must have done the act complained of in good faith and there can be no bona fides in the commission of a fraudulent or malicious act. In Nwankwere’s case, the action was instituted in a Magistrate’s Court. Evidence adduced by both the plaintiff and the respondent was heard by the Magistrate before he gave judgment for the plaintiff. The respondent Nwankwere appealed from the decision to the High Court (Duffus, J.). The protection under section 2(a) of the Public Officers Protection Law was not mentioned or raised before the trial Magistrate but on appeal to the High Court. In his judgment dismissing the appeal, Duffus. J. relied on the decision in Scammel & Nephew Ltd. v. Hurley (supra) to hold that-

“To require the protection of the Public Authorities Protection Act, the acts must be acts not authorised by any statute or legal justification, but acts intended to be done in pursuance or execution of some statute or legal power.”

And when Nwankwere appealed further to this court (Bren. Onyeama and Coker. JJ.S.C.), the court dismissed the appeal holding that-

“We agree with Duffus, J., in regarding that passage (in Scammell & Nephew v. Hurley) as applying to the Public Officers Protection Law. The law is designed to protect the office that acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification, if the plaintiff’s story was true, the defendant did not purport to be acting in the execution of any public duty.”

It is pertinent to mention that in both the English cases of Pearson v. Dublin Corporation (supra) and Scammell & Nephew v. Hurley (supra), full trial took place in the lower courts and evidence was adduced by the parties therein. The relevant provisions of Public Authorities Protection Act, 1893 were raised at the hearing of the cases.

Now, in Fred Egbe v. Justice Adefarasin & Another (supra) (1985) 1 N.W.L.R. (Pt.3) 549, the plaintiff after instituting the action, filed his statement of claim. The defendants before filing their statements 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 provisions of section 88(1) of the High Court Law, Cap.52 of the Law 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 Prosecutions, was protected under the provisions of section 2(a) of the Public Officers Protection Law, Cap. 114. The application was heard and the 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 section 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 or 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 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 ….. 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) N.M.L.R. at p.45 are irrelevant to the determination of this appeal.”

From the foregoing, it is clear that whilst the decisions in the cases of Olatunji (supra) and Nwankwere (supra), that malice or bad faith would vitiate protection under section 2(a) of the Public Officer’s 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 an maintainable against the defendant.

The appellant has argued that since the application in the present case to dismiss the action was brought in the High Court under the provisions of Order 22 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, Cap.52, the respondents were taken to have admitted the averment in his statement of claim to the effect that they acted maliciously in conspiring to libel him in the letter copied earlier in this judgment. He relied on the decision in Foko & Ors v. Foko & Ors. (1968) NMLR 441 in support of the argument. (As a matter of interest, the same submission was made in the case of Fred Egbe v. Justice Adefarasin & Anor. (supra) See p.559). I do not think that the appellant is right in stating that by making the application under order 22 rule 4, the respondents have admitted malice. Order 22 rule 4 reads-

“4. The Court or Judge in chambers may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court or a Judge in chambers may order the action to be stayed or dismissed, or judgment to be entered accordingly, as just.”

Rule 1 of the same order provides “No demurrer shall be allowed.” This makes the provisions of order 22 markedly different from those of order 28 of the Supreme Court (Civil Procedure) Rules Cap.211 of the Laws of Nigeria, 1948 which made demurrer applicable. Order 28 rules 1 and 2 of the latter rules read –

“1. Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.

2. For the purposes of such application, the defendant shall be taken as admitting the truth of the plaintiff’s allegations, and no evidence respecting matters of fact, and no discussion of questions of fact, shall be allowed.”

Although the provisions of Order 22 of the High Court (Civil Procedure) Rules, Cap.44 of the Laws of Western Region of Nigeria, 1959 are the same as those of Order 22 of the High Court of Lagos State (Civil Procedure) Rules, Cap.52, the decision in Foko’s case (supra), at p.445 thereof, was based on the decision in Adewale Fashalu v. Governor, Western Region & Anor. (1956) WRNLR 138 at p.140, which in turn was based on the provisions of Order 28 of the Supreme Court (Civil Procedure) Rules, Cap. 211, which allowed demurrer. As there is no provision for demurrer under the High Court of Lagos (Civil Procedure) Rules, Cap. 52 and indeed under Order 22 of the High Court (Civil Procedure) Rules, Cap.44 of the Laws of Western Region, 1959, the trial Judge in Foko’s case (supra) was in error to have held that by applying under Order 22 the defendants were taken to have admitted the averments in the statement of claim. Accordingly, the Appellant’s submission that the respondents are deemed to have admitted malice since they made their application to dismiss his action under Order 22 rule 4 of the High Court of Lagos (Civil Procedure) Rules. Cap.52 is misconceived. There is no such admission.

Next, the Appellant has canvassed that the decision in Fred Egbe v. Justice Adefarasin & Anor. (supra) should be overturned in favour of the decision in Nwankwere’s case (supra). As already shown, there is a clear distinction between the facts in the former case and the latter case. Neither evidence nor admission of the malice or bad faith alleged by the Appellant in his pleadings – statement of claim and reply – has satisfactorily been shown by the Appellant. Since both cases are by their facts different and the decisions in them were based on different circumstances, the ground on which they can be said to be in conflict has not been established. No foundation has therefore been laid, for us to depart from the decision in Fred Egbe v. Justice Adefarasin & Anor. (supra) – See Mrs. Bucknor-Maclean & Anor. v. Inlaks Ltd. (1980) 8-11 S.C. 1 at pp.23-25; Nofiu Surakatu v. Nigeria Housing Development Society Ltd. (1981) 4 S.C. 26; Oduola & Ors v Coker & Ors. (1981) 5 S.C. 179; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 S.C. 158 at p.298.[1983] SCNLR 296 and Akinsanya v U.B.A. Ltd. (1986) 4 NWLR (Pt.35) 273 at p.323, where I 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.”

What has emerged from all that has been stated above may be summarized 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 or 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.

On the other hand, where the protection under section 2(a) of the Public Officers Protection Law, Cap. 114 is pleaded and evidence has been led by the parties, then the trial court is entitled to examine the facts and the circumstances under which the cause of action or the act complained of was performed, in order for it, in determining liability, to decide whether the protection has been vitiated by malice or bad faith. This is the ratio decidendi in Nwankwere’s case as decided by this Court and is also the ratio decidendi in the English authorities cited in Olatunji’s case, namely, Pearson v. Dublin Corporation, (supra) and Scammell & Nephew v. Hurley (supra). Hence, the absence of conflict between the different decisions of this Court in the cases of Nwankwere and Fred Egbe v. Justice Adefarasin & Anor.

In the result, this appeal has failed and it is hereby dismissed. The judgment of the Court of Appeal is hereby affirmed with N500.00 costs to each set of the respondents.

BELLO, C.J.N: I agree with the conclusion of my learned brother, Uwais, J.S.C. that the appeal should be dismissed. I endorse the order as to costs.

The facts of the case and the submissions of Counsel have been fully considered by Uwais, J.S.C. I do not intend to repeat them. I shall only deal with the apparent inconsistency in the decision of the former Supreme Court in Inspector-General of Police v. Olatunji (1955) 21 NLR 52 and of this Court in Nwankwere v. Adewunmi (1967) NMLR 45 which decided that a public officer could not benefit from the protection afforded by section 2(a) of the Public Officer’s Protection Law, if it was shown that the public officer had acted maliciously or in bad faith, and the decision in Egbe v. Justice Adefarasin (1985) 1 NWLR (Pt.3) 549 which decided that once the protection accorded by the section was invoked, the question whether the act complained of had been done maliciously or in bad faith was irrelevant.

For the resolution of the apparent conflict, I consider it necessary to examine the very foundation upon which the decision in each case was predicated. Inspector-General of Police v. Olatunji (Supra) was a criminal case in which the accused who was a public officer was charged with the offences of abuse of office under section 104 of the Criminal Code and also with contempt of court under section 21 of the Native Courts Ordinance, Cap. 142, 1948 Laws of Nigeria. The Magistrate did not hear evidence but dismissed the summons on the ground that the prosecution was not commenced within three months as required by the Public officers Protection Ordinance, Cap. 186, 1948 Laws of Nigeria.

In allowing the appeal and remitting the case to the court below for trial, Ademola, J. stated:

“The allegation against the accused respondent in the present appeal was that he has acted in abuse of the authority of his office. On the strength of all the authorities I have referred to, I am of the view that the learned Magistrate was wrong in not hearing evidence in the case and in holding that the accused respondent can rightly claim the protection of the Ordinance.

I therefore allow this appeal. I hereby order that the case be remitted to the court below and that the trial be re-opened: that the charges be determined on the basis that the Public Officer’s Protection Ordinance is inapplicable to the case.”

It may be observed that although the report did not state the duty of the public officer for the performance of which the Magistrate afforded him the protection of the Ordinance, a reasonable tribunal may rightly infer that whatever was his public duty, the commission of criminal offences could not be done “in pursuance or execution of any Ordinance or Law or of any public duty” as envisaged by the Ordinance. Accordingly, one may rightly conclude that Ademola J. held that the Ordinance was inapplicable because the accused could not have committed the alleged crimes in the lawful execution of his public duty.

The five authorities upon which Ademola J. based his judgment were referred to in his judgment. I shall consider each one. In the case of Morgan v. Palmer (1824) 2 B & C 729, bad faith was not in issue. For 65 years publicans had been paying 4 shillings fee annually to Mayors for licensing public houses. The plaintiff sued the defendant, who was a Mayor and a Justice of Peace, for the refund of the fee on the ground that there was no statutory basis for it. The defendant pleaded the Act, 43 G.3 C.99, which required a prior notice to be given before commencing an action against a Justice of the Peace for any thing done by him. It was held since the fee was given to the defendant in his capacity as the Mayor and not as a Justice of Peace, the Act was inapplicable.

Irving v Wilson (1971) 4 Term. Rep. 485 was a case of extortion in which Custom Officers had seized goods as forfeited which were not liable for seizure and later took money from the owner and released the goods. In an action to recover the money, it was held a month’s notice needed not to be given to the officers under the 23 G.3, C. 70.

Again, in Pearson v. Dublin (1907) A.C. 351, the cause of action was in respect of a fraud arising out of a private contract and consequently the defence under the Public Authorities Protection Act, 1893, that the action was instituted outside the 6 months, was over-ruled on the ground that the action was not brought before any act done in pursuance of any public duty or authority” as required by the Act.

Scammell and Nephew Ltd. v Hurley (1929) 1 K.B. 419 was complicated. The plaintiffs were entitled to receive electricity from Borough Council but were deprived due to strike. They sued the defendants, the Borough Electricity Supply Committee, for damages accusing the Committee of conspiracy with Trade Union to discontinue supply of electricity to the plaintiffs. The defendants denied and pleaded the Public Authorities Protection Act 1893.

At the trial, it was proved to quote from the report at p.419;

“They (the defendants), discussed the position with the Trades Union Council, and eventually resolved that if the union workers would continue the supply of light they would abandon the supply of power. The result of this was that the supply of power to the plaintiffs, as to another occupier of premises in the borough, was discontinued, whereby the plaintiffs suffered damage. The jury found that the defendants in making the agreement whereby power was not supplied to the plaintiffs were not acting in good faith and in the honest belief that they were carrying out their statutory duties, and that they were actuated by an indirect motive to injure the plaintiffs and to further the interests of those taking part in the strike. Upon these findings, judgment was entered for the plaintiffs.”

On appeal, it was held that there was no evidence to support the findings of the jury and that the acts and neglects complained of were done in the execution of statutory duties and the defendants were entitled to the protection of the Act. It follows therefore that although, bad faith was put in issue, to wit the alleged conspiracy, it was not proved.

It appears the peroration of Scrutton, L.J. which may be regarded as an obiter dictum, went beyond the ratio decidendi of the case. The learned Lord Justice opined at pp.427 to 429:

“The Public Authorities Protection Act, 1893, is wanted only if the acts complained of are illegal. It may be an answer to the action that those acts were legal, or gave no cause of action; but it is unnecessary to consider this if though the acts were illegal, they are acts in respect of which an action can only lie if brought within the statutory limit of time, in this case six months next after the act, neglect or default complained of. To require the application of the Public Authorities Protection Act, the acts must be acts not authorized by any statute or legal justification, but acts intended to be done in pursuance or execution of some statute or legal power. It would appear, therefore, if illegal acts are really done from some motive other than an honest desire to execute the statutory or other legal duty and an honest belief that they are justified by statutory or other legal authority; if they are done from a desire to injure a person or to assist some person or cause without any honest belief that they are covered by statutory authority, or are necessary in the execution of statutory authority, the Public Authorities Protection Act is no defence, for the acts complained of are not done in intended execution of a statute, but only pretended execution thereof. In the same way as to “defaults” which in my view cover simple omissions to do something which is required by statute to be done, if it can be proved that the default is the result of the motives or intentions specified above, motives other than the desire and intention to perform statutory duty, the Act would not give protection. But a default in executing the statute from no positive motive or intention, but from simple forgetfulness or ignorance, would not lose the protection of the statute. In my opinion, this represents the law, though there is not at present, much direct case authority for it. In Newell v. Starkie (1), an Irish appeal to the House of Lords, the plaintiff alleged that the defendant did certain acts, apparently in executing a statute, “maliciously,” but gave no evidence of malice, treating the defendant as having the burden of proving that he acted in performance of a statutory duty. An the members of the House agreed that in the acts complained of, being apparently acts in the execution of statutory duty, there was no evidence on which a question could be left to the jury whether the defendant acted maliciously, and therefore outside the protection of the statute; but Lord Finlay went on to say what was presumably not necessary for the decision (2): “The second observation I have to make is that the Act necessarily will not apply if it is established that the defendant had abused his position for the purpose of acting maliciously; in that case he has not been acting within the terms of the statutory or other legal authority; he has not been bona fide endeavouring to carry it out. In such a state of facts, he has abused his position for the purpose of doing a wrong, and the protection of this Act, of course, never could apply to such a case.”

In Selmes v. Judge, (3) surveyors of highways made a rate of an amount not authorized by any Act. Blackburn. J. said (4): “Here, the defendants were surveyors of highways, elected under 5 & 6 Will. 4. C. 50. It is probable that they did not know what was the Act under which they were appointed; but assuredly they intended that everything which they did as surveyors of highways should be done under the authority of the statute under which they were appointed.

The Judge thought that the defendants were not acting under the 5 & 6 Will. 4, C. 50, and that consequently, they were not entitled to the notice of action allowed thereby. I agree that if a person knows that he has not under a statute authority to do a certain thing, and yet intentionally does that thing, he cannot shelter himself by pretending that the thing was done with intent to carry out that statute.”

The defendants were there protected, though they had done a thing unauthorized by any Act, and did not know the terms of any Act authorizing the act they did, because they honestly thought they were carrying out some statutory duty.

Again in Cross v. Rix (1) Ridley, J. said, obiter, there was an issue of fact as to whether the defendant’s actions were done bona fide in pursuance of a public duty, or were done out of malice or spite,” which must be determined to see whether the Public Authorities Protection Act applied.

In my opinion, when a defendant appears to be acting as a member of a public body under statutory authority and pleads the Public Authorities Protection Act, the plaintiff can defeat that claim by proving on sufficient evidence that the defendant was not really intending to act in pursuance of the statutory authority, but was using his pretended authority for some improper motive, such as spite, or a purpose entirely outside statutory justification. When defendants are found purporting to execute a statute, the burden of proof in my opinion is on the plaintiffs to prove the existence of the dishonest motives above described and the absence of any honest desire to execute the statute, and such existence and absence should only be found on strong and cogent evidence.” Greer, L.J. had only this to say at p.444:

“If this opinion is correct it is unnecessary to consider the protection afforded by the Public Authorities Protection Act, but if I should be wrong in holding that there was no cause of action, the question whether they are so protected would arise. In my judgment they would be so protected, because they were acting in intended execution of the Stepney Electricity Order, in as much as they were endeavouring to secure a continuance of the supply of electric light for their borough, and they were also acting in intended execution of their public duty as members of the Council and representatives of the people of the borough. I do not think it follows from the fact that they knew that the necessary result would be that the corporation would be involved in an illegality would prevent the application of S.1 of the Public Authorities Protection Act, 1893.”

In his judgment relating to the issue, Sankey, L.J. simply stated “Not only was there no evidence of conspiracy, but in my view also the defendants are protected by the Public Authorities Protection Act, 1893.”

The last case relied upon by Ademola. J. was Commissioner of Police v. Deniss, Gold Coast, 29th March, 1941 (unreported) in which it was held the accused could not be protected by the Gold Coast Public Officers Protection Ordinance for the crime of “theft.”

It now remains to consider Nwankere v. Adewumi (supra) where a public officer, Vehicle Inspection Officer, laid a motor vehicle off the road and impounded its certificate of road-worthiness. He inspected the vehicle and after certain repairs required by him had been done, he declared it roadworthy but refused to issue a certificate of roadworthiness until a bribe was given to him. The owner sued for wrongful detention of the vehicle. The Magistrate awarded N300 damages. The defence under section 2 of the Public Officers Protection Law was raised for the first time at the hearing of the appeal in the High Court which it dismissed. In upholding the decision of the High Court, on further appeal, this court said.

“The Law (The Public Officers Protection Law) is designed to protect the officer acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification; if the plaintiff’s story was true the defendant did not purport to be acting in the execution of any public duty.” (Bracket mine)

The decision of the court is clear that the cause of action was not based on the lawful act of the Vehicle Inspection Officer for inspection of the vehicle and causing its repairs but for its wrongful detention for the purpose of obtaining a bribe, which was a criminal offence that could not have been committed in the execution of his public duty.

It is clear from the ratio decidendi of the foregoing cases, except that of Morgan v Palmer (supra) and Scammell v Hurley (supra), the bad faith in each case which was held to be unprotected by the relevant statute was the commission of a criminal offence which could not have been committed in pursuance or execution of the lawful duty of each public officer. Consequently, the rationale for the non-application of the relevant statute is that in all the cases the offences were committed outside the scope of the lawful duties of the public officers concerned. As I have earlier shown, bad faith was not in issue in Mortan v Palmer (supra) while in Scammell v Hurley (supra) there was allegation of bad faith, conspiracy, which was not proved.

I now come to consider Egbe v Adefarasin and Anor. (supra). In the lead judgment, Karibi-Whyte, J.S.C. stated the facts and circumstances of the case as follows at pp. 554 and 555:

“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 v. Fred Egbe by the 2nd defendant in furtherance of the said charge are illegal and void.”

The 1st defendant is and was at an 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 office. 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 other who are not parties to the action.”

The judgment was clear that it was on the strength of the facts of the case that this court held that the 2nd respondent was entitled to the protection of the Public Officers Protection Law, the action having not been brought within the prescribed period of three months from the accrual of the cause of action.

In my view, Egbe v Adefarasin & An. (supra) is distinguishable from all the cases, other than Scammell v. Hurley (supra), I have referred to in this judgment. On the face of the writ of summons and the Statement of Claim, and the courts so found, that the acts complained of in Egbe v. Adefarasin were done by the public officers in pursuance and execution of their constitutional and statutory duties. So it was of the public officers in Scammell v. Hurley.

In all the other cases I have referred to, the public officers acted outside their lawful duties. It is clear that the cause of action in the Egbe v. Adefarasin arose out of the performance of the duties of the two public officers. The same applies to the cause of action in the case on appeal.

Finally, my understanding of the ratio decidendi in Egbe v. Adefarasin may be stated thus: where it is shown that a cause of action arose out of an act done by a public officer in pursuance or execution of his lawful duty, then malice is irrelevant for the purpose of his protection by the law.

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SC.189/1986