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

LawGlobal-Hub Lead Judgment Report

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

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

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

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

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

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

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

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

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

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

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

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

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

In that:

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

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

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

(d) The 1st and 2nd Defendants are not the proper parties to be sued in view of the provisions of Section 3(1) of the Petition of Rights Law Cap. 92 Laws of Lagos State.

These were the grounds upon which defendants relied to dismiss the action of Plaintiff against them. There is no doubt the reason is the simple and well settled one already stated in this judgment, namely whether the action is maintainable against, (a) the 1st defendant who is a Judge of the High Court, a superior Court, and Chief Judge of his Court, and (b) the 2nd defendant, who was at the time the Director of Public Prosecutions, a Public Officer in the Ministry of Justice of Lagos State. Both defendants acted in the capacity of their statii and in the course of their employment.

The application which was argued by Counsel for the defendants was vigorously opposed on several grounds by the Plaintiff who appeared in person. On the 2nd October, 1981, the learned Judge in a considered ruling granted all the prayers of the defendants and dismissed Plaintiff’s action in limine.

The learned Judge ruled that the acts complained of by the Plaintiff were done by the 1st defendant in the discharge of his official duty and accordingly enjoyed immunity from liability. In the case of the 2nd defendant (i) the action is statute barred by reason of the provisions of Section 2(1) of the Public Officers Protection Law. (ii) the Court in its discretion ought not to entertain the relief claimed. Plaintiff, hereinafter, referred to as the Appellant, appealed against the ruling dismissing the action. Appellant filed and argued before the Court of Appeal seven grounds alleging various errors of law in the ruling of the learned Judge. In the judgment of the Court read by P. Nnaemeka Agu, J.C.A., with which Mohammed and Kutigi, JJ.C.A. concurred, the Court of Appeal dismissed the appeal and affirmed the ruling of the High Court dismissing the action of the appellant against the respondents on the grounds relied upon in their application.

It is pertinent to state that respondents in their application to dismiss Appellant’s action, relied upon the provisions of Section 88(1) of the High Court Law of Lagos State and Section 2(1) of the Public Officers Protection Law, Cap. 92 of Lagos State. Appellant whilst conceding the immunity conferred on Judges by S.88(1) of the High Court Law, and the protection under, Section 2(1) of the Public Officers Protection Law, submitted that in the instant case where mala fide and improper motive have been established by affidavit which was not challenged, respondents cannot enjoy the protection relied upon and that the action was maintainable.

Five grounds of appeal have been filed in this Court against the judgment of the Court of Appeal.

Grounds of Appeal:

(i) The learned trial Justices of Appeal erred in law in failing to distinguish between jurisdiction in the abstract sense of legal power and conditions precedent to the exercise of that power, in holding, contrary to the authority of Sirros v. Moore (1974) 3 All E.R. at page 776, that it was within the jurisdiction of a Judge to knowingly act unlawfully i.e. to grant consent for a criminal prosecution in circumstances where the Judge knew that no offence was disclosed or existed and for the prosecution of a person the Judge a fortiori knew was innocent.

(ii) The learned Justices of Appeal erred in law in holding that the power conferred under Section 340(2) (b) of the Criminal Procedure Law Cap. 32 Laws of Lagos State can be exercised for a purpose other than that contemplated by the enactment i.e. exclusively for the personal benefit of a Judge, in this case solely as a reprisal for the failure/inability of the prosecuted to procure for a Judge a tenant of the Judge’s preference.

(iii) The learned Justices of Appeal erred in Law in holding that neither defendant acted maliciously in preferring a criminal charge when they knew no offence was disclosed. There was no evidence upon which such a finding could have been based-the proceedings being of a summary nature under Order 22.

(iv) The learned Justices of Appeal erred in law in holding as neither defective nor invalid, a self-contained document of consent that did not specify an offence. The essential factors required for the validity of a consent document being: (1) an offence or offences (2) the identity of the person to be charged (3) the identity of the consenting authority.

(v) The learned Justices of Appeal erred in law contrary to Supreme Court’s authority of Inspector-General of Police v. Olatunji 21 N.L.R. at 52, that bona fides is not germane to the exercise of a statutory power and that malicious actions are protected under the Public Officers Protection Law Cap. 114 Laws of Lagos State.

Appellant, and Counsel for the respondents have filed their briefs of argument. They relied in essence on their briefs and expatiated where necessary for more effective elucidation of the points made in the brief. Concisely stated, the issues argued from the ruling of the learned Judge to the appeal of the appellant to the Court of Appeal and to this Court, come to this Accepting the averments in the statement of claim as they have been admitted, (a) are the claims against the 1st respondent maintainable in law (b) is the action against the 2nd respondent statute-barred, and should the Court in the circumstance entertain it (c) should the Court grant the 3rd relief in the declarations sought in the writ of summons The formulation of the questions for determination by Chief F.R.A. Williams, S.A.N., for the respondents is slightly different and in my view though adequate does not cover all the grounds argued. I therefore follow the formulation of the issues as I have indicated in this judgment.

On an analysis of appellant’s grounds of appeal, it will be seen that grounds (i), (ii), (iv), concern and affect the issues in respect of the 1st respondent. Ground (v), concern and affect only the 2nd respondent. Ground (iii) concern and affect the issues in respect of both respondents. For the purposes of the determination of the issues and understanding of the contentions urged on us, it is pertinent to refer to and reproduce the relevant averments in the statement of claim relied upon by counsel on both sides. Paragraphs 2, 14, 15, 16 and IX of the statement of claim are as follows:

STATEMENT OF CLAIM:

2. The 1st Defendant is the Chief Judge of Lagos State and 2nd Defendant was at all times to this action the Director of Public Prosecutions in Lagos State.
3. The 2nd Defendant then maliciously wrote a letter dated 6th October 1978 to the 1st Defendant requesting the 1st Defendant to provide a “blanket” consent for the preferment of unspecified charges against the Plaintiff.
4. It will be shown that the 1st Defendant on the 11th day of October, 1978 signed a document purporting to consent to the preferment of “Criminal Information” against the Plaintiff.
5. It will be shown that both Defendants in requesting for and in purportedly granting consent for the Criminal prosecution of the Plaintiff knew that no offence was disclosed by the Statements of witnesses and that neither believed that the Plaintiff had committed any offence. The Plaintiff will rely all the Statements of Witnesses and the Judgment of the Federal Court of Appeal in FCA/71/79, Fred Egbe Vs. The State.
6. Notwithstanding the nullity of the document of consent the Plaintiff was arraigned before the Lagos High Court Criminal Division on Charge No. LCD/24/78 and it will be established that the preferment of charges by the 2nd Defendant against the Plaintiff and the arraignment of the Plaintiff are illegal null and void.

It is the averment in paragraph 16 that 1st respondent knew that “no offence was disclosed by the statements of witnesses”, neither did he believe that appellant had committed any offence at the time he consented to the filing of the information for the prosecution of the appellant. The averments in paragraphs 3, 4, 5, 6,7, 8, 9, 10, 11, 12, 13 seem to suggest motive of the respondents for their action in their averments in paragraphs 14, 15 and 16.

The brief of argument of appellant has maintained the same trend. However, it is inescapable on the evidence before the Court and admitted by the appellant as averred in the statement of claim that 1st respondent is a Judge of the High Court and committed the acts complained of in his position as a Judge. Similarly, the 2nd respondent was at all material times a public officer and committed the acts complained of as such public officer.

It is within this con that the application of respondents was decided in the Courts below.

Arguments of Counsel:

The essence of grounds I, II and IV of the grounds of appeal was to determine the scope of the immunity enjoyed by a judge of the High Court. 1st respondent has relied on section XX(I) of the High Court Law. Appellant has argued before us and formulated a proposition in law that a Judge who, in the discharge of his duties knowingly commits an unlawful act, in this case, granting consent for a criminal prosecution, when he knew that no offence was disclosed on the statements of the witnesses, was not immune from civil liability and is not entitled to the protection of section 88(1).

That he acted within his jurisdiction is immaterial. He submitted that 1st respondent having not complied with the provisions of the Indictments Ace 1933, had no jurisdiction when he gave the consent. It was submitted with considerable force, emotion and animated conviction, and relying on the dictum of Denning M. R. in Sirros v. Moore (1974) 3 All E. R. 776 that section 88(1) of the High Court Law protected 1st respondent only where he acted bona fide.

It was further contended that once malice was established, as was admitted in this case relying on Foko v. Foko (1968) NMLR 442 the immunity which is not absolute is destroyed and action was maintainable. It was conceded that where 1st respondent acts outside the jurisdiction and is bona fide, he is entitled to the protection of section 88(1). Finally, it was submitted that the consent given in this case under s.340 (2)(b) of the Criminal Procedure Law was given without jurisdiction, 1st respondent having at the material time known that no offence was committed. Counsel referred to the definition of jurisdiction in the broad sense as was stated by Lord Pearce at p.233 in the Anisminic Ltd. v. Foreign Compensation Commission (1969) 1 All E.R. 233.

Chief Williams’ short reply to this submission was that whether or not the first two claims in the writ of summons are maintainable against the 1st respondent will depend upon the proper construction of section 88(1) of the High Court Law of Lagos State. It was submitted accordingly that the 1st respondent who had the jurisdiction under s.340(2)(b) of the Criminal Procedure Law, acted within his jurisdiction and was therefore protected under s.88(1) of the High Court Law. Chief Williams submitted that the jurisdiction relevant for this purpose is the jurisdiction in the narrow sense used by Lord Keid in the Anisminic Ltd. v. Foreign Compensation Commission (1969) 1 All E.R. 233.

Construction of S.88(1) of the High Court Law.

It is important to attempt a construction of the provision of s.88(1) of the High Court Law relied upon by 1st respondent. It is significant that although section 267 of the constitution 1979 provided for immunity in respect of civil or criminal proceedings in respect of persons holding the offices named in subsection (3), no similar constitutional provision exists in respect of Judges of the superior Courts. It will seem that the provisions of the various High Court Laws regarded as existing laws by Section 274 of the Constitution 1979, were deemed sufficient for the purpose of the protection of Judges of superior Courts.

Section 88(1) of the High Court Law provides as follows:

1 No Judge shall be liable for any act done by him or ordered by him to be done in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided that he at the time, in good faith, believed himself to have jurisdiction to do or order to be done the act in question.

This provision has its origin in the rules of English Common Law and is of the highest antiquity. The general rule at common law is that persons exercising judicial functions in a Court or Tribunal are immune from all civil liability whatsoever for anything done in their judicial capacity. Section 88(1) is the common law rule enacted into statutory provision. It would seem to be the clear intention of the section to protect the Judge from attacks by law suits arising from the discharge of his judicial duties. It is not arguable that a Judge is a public officer of very high status. It is also true that in the discharge of his judicial duties consistent with his oath of office to do justice to all manner of people, without fear or favour, and without affection or ill will, his conduct is exposed daily to criticism by persons who are affected by his decisions. The constitution has provided for a procedure for dealing with Judges whose conduct have fallen below the expected standard of decorum, that is by removing such Judges.

Common Law and Judicial decisions:

Our judicial and legal system is posited entirely on the experience of the English Common Law. Where even the uncondified and unwritten common law has been translated into statutory enactment in our own jurisdiction, unless the clear words of the statutory provisions intended a departure from the common law rules, it has been the invariable practice to follow the common law rule on the subject. The issue of the immunity from suit of superior courts is one of antiquity in the common law. It has been traced to the turbulent period of Lord Chief Justice Coke, and there are speculations that the immunity predate this age (see Halsbury’s Laws of England 3rd Edition Vol. 30, articles 1351 footnote (p) and the cases in the Year Book referred to therein). The proposition is now well settled, including dicta in Sirros v. Moore (1974) 3 All E.R. 776, that a Judge in a superior Court of record is not liable in tort for any judicial act performed by him within his jurisdiction, even though he be malicious. The decided cases in support of this proposition are replete in the law reports. I will however refer to only a few to illustrate the principles upon which the proposition has been founded.

In Scott v. Stamfield (1867-68) Exch. 220 at p. 223, Kelly C.B. said,

………………..but a series of decisions uniformly to the same effect, extending from the time of Lord Coke to the present time, establish the general proposition that no action will lie against a Judge for any acts done or words spoken in his judicial capacity in a Court of Justice. This doctrine has been applied not only to the superior Courts but to the Court of a coroner and to a Court martial, which is not a Court of record.

The most recent statement of the position is in Sirros v. Moore (1974) 3 All E. R. 781 – 782, in this case Denning MR, said,

“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a Judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes cannot be made the subject of civil proceedings against him. No matter that the Judge was under some gross error or ignorance, or actuated by envy or hatred and malice and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari or take some such step to reverse his ruling. Of course, if the Judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal Courts. That apart, however, a Judge is not liable to an action for damages.”

The reason for this immunity is founded in public policy. In England as in this country, the need to protect Judges from wanton attack cannot be over stated.

Toaffee v. Downes (1813) 3 MOO P.C.C 36, was an action against the Lord Chief Justice of the Queen’s Bench of Ireland. Like the 1st respondent in the appeal before us, he declined to plead any form of justification and relied on his position as a Judge to have the action dismissed. Fox J. delivering the judgment of the Court said, at p. 38-

“The principle of law, of exemption from being sued for matters done by Judges done in their judicial capacity, is of great importance. It is necessary to the free and impartial administration of justice, that the persons administering it should be uninfluenced by fear and unbiased by hope”

Earlier in Miller v. Seare (1777) 2 Wm. B1. 1141 at p. 1145, De Grey C.J., had said,

In all the cases where protection is given to the Judge giving an erroneous judgment, he must be acting as Judge. The protection in regard to the superior Courts is absolute and universal; with respect to the inferior Court it is only when they act within their jurisdiction.

In Fray v. Blackburn (1863) 3 B & S. 576 at p. 578, which was an action against Blackburn J., Crompton J. stated the principle more forcefully when he said –

It is a principle of our law that no action will lie against a Judge of one of the superior Courts for ajudicial act, though it be alleged to have been done maliciously and corruptly

Anderson v. Gorrie (1895) 1 Q.B. 668, was an action against three Judges of the Supreme Court of Trinidad and Tobago for wrongfully, acting maliciously and knowingly without jurisdiction committing appellant for contempt and holding him to excessive bail. The jury found against one of the Judges for acting oppressively and maliciously, and assessed damages at N500. The learned Judge directed judgment to be entered for the defendants on the ground that no action will lie against a judge of a Court of record in respect of acts done by him in his judicial capacity. Plaintiff appealed to the Court of Appeal in England where Lord Esher MR, with who Kay J. and

A. L. Smith L.J. agreed said, at p. 671-

There is no doubt that the proposition is true to its fullest extent, that no action lies for acts done or words spoken by a Judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office………………………………..

At p. 672 his Lordship added to avoid ambiguity,

It follows from what I have said that, taking the findings of the jury to be true to the fullest extent, the action will not lie against the defendant.

In the recent decision of the Court of Appeal in Sirros v. Moore (1974) 3 All E.R. 776 the principle has been reaffirmed with greater emphasis, and suggesting its extension to Courts exercising inferior jurisdiction. That Judges of superior Courts are immune from civil liability was not in doubt in the judgments reported, (see Denning MR at p. 785, Buckley L.J. at p. 786, Omrod L.J at p. 788). The books and other books of authority are all agreed on the,validity of the principle – see Salmond on Torts (16th Ed.) (1973) pp. 416, 417; Winfield and Jolowics on Torts 9th Ed. (1971) pp. 608, 609, Clerk and Lindsell on Torts 14th Ed. p. 1100. Street – The Law of torts, Fifth Ed. (1972) p. 95 Houldsworth – A History of English Law, Vol. 6 pp. 236 – 240. In re MCC (A Minor) (1964) 3 W.L.R. 1227. See also Regina v. Welthamn Forest Justices, Exparte Solanke, Times Law Report, Jan. 12, 1985.

The essential prerequisites for this immunity to be distilled from all the authorities are that the defendant must be –

(a) A Judge of a Superior Court of record

(b) Acting within jurisdiction in respect of the matter complained of, or

(c) If acting in excess of or outside jurisdiction, must believe himself to have the jurisdiction to do the act complained of.

This last mentioned precondition is clearly stated in the judgment of Denning M.R. in Sirros v. Moore (supra) at p. 785, where he said,

…… so long as he does his work in honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction in fact or in law but so long as he honestly believes it to be within his jurisdiction, he should not be liable…………..

(see also Buckley L.J. at p. 786).

I now turn to construe the provisions of section 88(1) of the High Court Law. The construction of an identical provision, i.e. section 61(1) of the Magistrate’s Court Law was given by De Command S.P.J. in Onitiri v. Ojomo 21 N.L.R. 19. This was an action for damages against a Magistrate who had detained Plaintiff for a few hours in his Court having found him guilty of contempt of his Court. It was held that the Magistrate was protected from liability, and the preliminary objection raised to dismiss the action in limine was granted.

Section 61 (1) provides –

No Magistrate, Justice of the Peace or other persons acting judicially, shall be liable to be sued in any civil court for any act, done or ordered to be done by him in the discharge of his official duty whether or not within the limits of his jurisdiction.

Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of.

In interpreting this provision, the learned Judge held that the words “acting judicially” in the sub-section applied only to the expression “other persons” and was used in contradistinction to acting ministerially. In view of the ejusdem generis rule which applies, this construction cannot be correct. Although the words are used in contradistinction to ministerial duties, it is not confined to other persons. It merely means Magistrates. Justices of the Peace or other persons acting judicially shall be immune from suit in any civil Court for acts done or ordered to be done in the discharge of their judicial duty. The section protects acts done whether within the limits of jurisdiction or not. The learned Judge held that even where a Magistrate assumes jurisdiction through a mislake of law, he is still protected by the law unless he acted in bad faith.

In Calder v. Halket (1835-42) All E. R. Rep. 307 at p. 308, the provisions of section 24 of the East India Company Act 1780 and East India Company Act 1813 (both now repealed by the Government of India Act 1915), fell to be construed. The section enacted for the protection of provincial Magistrates in India reads-

“That no action for wrong or injury shall lie in the Supreme Court against any person whatsoever exercising judicial office in the County Courts, for any judgment decree or order of the said Court…………”

The respondent was a provincial Magistrate in India. He had jurisdiction only over non-British subjects and over British subjects on complaint made against them by natives. Respondent without such a complaint against appellant ordered his arrest after a riot. Appellant is a British subject. Appellant brought an action against respondent for trespass. Respondent then relied on section 24 cited above.

There is no doubt that respondent did not have the requisite jurisdiction, appellant being a British subject against who no complaint had been made by a native. Baron Parke in dismissing the appeal gave three possible meanings of the section. Firstly, it may confer complete and absolute immunity and preclude all inquiry respecting the acts of one exercising judicial office in the County Courts. Secondly, it may protect the Judge only where he acts in the bona fide exercise of his office under the belief that he has jurisdiction, though he may not. Thirdly, to put the Judges of the Native Courts on the same footing of Judges of superior Courts of record or Courts having similar jurisdiction to Native Courts in India, protecting them from acts done or things said in the exercise of their jurisdiction, though erroneously or irregularly done. Liability is therefore confined to things done wholly without jurisdiction. Baron Parke held that the third reason is the true object of the section.

This view would seem to neutralise the distinction made in England in the liability of Judges, between superior and inferior Courts which Sirros v. Moore (supra) is up against. In Onitiri v. Ojomo (supra) it was clearly stated at p.23-

“Our law is quite different in this respect from the English Law: in England the Justices Protection Act 1948 distinguishes between acts or orders done or made without jurisdiction and those made within jurisdiction. In England there are cases such as Houlden v. Smith where it was held that a Judge cannot rely on the defence that he acted wrongly through a mistake of law because he is supposed to know the law. Here in Nigeria sub-section (1) of section 61 of Cap. 122 protects a Magistrate who acts in good faith outside the limit of his jurisdiction, whether he does so through a mistake of law or of fact.”

As I have indicated above the provisions of section 61(1) of the Magistrate’s Court Law, and s. 88(1) of the High Court Law in issue in this case are similar. Indeed the intendment of section 61(1) and s.24 of the East India Company Act 1700 are the same. In the Court of Appeal, Nnaemeka-Agu, JCA, gave a construction of s.88(1) which the other members of the Court concurred with. He said,

“It is clear from the wording of the section that the Judge is fully immune from liability from any act done or ordered to be done by him in the discharge of his judicial duty when he acts within his jurisdiction. He is also fully protected when he acts outside his jurisdiction if he believed, in good faith, that he was acting within his jurisdiction. It is only when he is acting outside the jurisdiction at the time of the act which is called in question that he is not protected. The good or bad faith relates to his belief and not necessarily to his act.”

I accept this construction as consistent with the judicial authorities and the provision of the section. I will however add in amplification that a Judge of the superior Court manifestly loses his immunity only where he acts without jurisdiction and in bad faith. In such a case he will not be acting in coram judice. Thus where the act is one within the jurisdiction bad faith, collusion etc. per se will not deprive him of the immunity under s. 88(1) (See Mayor of Bradford v. Pickles (1891) A.C. 587).

Accordingly, for appellant to succeed he must show that (a) respondent acted without jurisdiction in the exercise of his function (b) that he was actuated by malice. It will appear from the statement of claim and the averments therein appellant was trying to establish the second reason. In respect of the first his contention before us tended towards the suggestion that a validly assumed jurisdiction can be lost by operation of law arising from malice and improper motive. This is an extraordinary proposition which may be described as the doctrine of the constructive loss of jurisdiction. The law as I understand it, has always been and still is that where the Judge has assumed jurisdiction properly and the matter complained of was done within jurisdiction, neither malice nor corruption nor bias renders such conduct liable in an action. The remedy of the aggrieved lies in an appeal to an appellate Court exercising supervisory jurisdiction. In extreme cases resort to public opinion and removal under s. 256 of the Constitution is the remedy. The Judge does not cease to have jurisdiction.

Appellant would seem to have relied on the dictum of Buckley L.J. in Sirros v. Moore (supra) at pp. 787 – 788 where it was said,

In determining whether a Judge is liable for some act which he purports to have done in his judicial capacity, the sole question may, I think, be said to be whether it was an act coram non judice. If he were then not performing a judicial function, the act was not coram judice and the Judge has no protection.

If he was purporting to perform a judicial function but the matter was such that he had no jurisdiction to adjudicate on it. again the act was not coram judice because he had no authority to act as a Judge for that purpose, and again he is without protection. If however, he did the act in purported performance of his judicial function and it was within his jurisdiction, then the act was coram judice. And the Judge is protected notwithstanding any error in his reason for doing the act or his method of doing it.

To summarise, and render the above dictum free from ambiguity Buckley L.J. concluded at p. 788 as follows-

In my judgment, it should now be taken as settled both on authority and on principle that a Judge of the High Court is absolutely immune from personal civil liability in respect of any judicial act which he does in his capacity as a judge of that court. He enjoys no such immunity, however, in respect of any act not done in his capacity as a Judge.

Appellant’s contention that 1st respondent lacked jurisdiction was as he submitted, because of the non compliance with the provisions of the Indictment Rules 1933. He argued that, since the essentials of the document constituting the consent was lacking, namely, the offence consented to was not stated, that defect divested 1st respondent of his jurisdiction to give consent. The document was accordingly invalid. The issue here is befogged by the nature of the jurisdiction exercised. And it is in this connection important to make a distinction between jurisdiction and power. Appellant has submitted that the jurisdiction relied upon here, is in the sense used by Lord Pearce in the Anisminic Case (1962) 2A.C. at p. 195, where he referred to “………an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account, thereby it would step outside its jurisdiction………. Any of these things would cause its purported decision to be a nullity.”

Counsel to the respondents had adopted the narrow meaning used by Lord Reid, at p. 171 in the same case. The narrow meaning of the word enables a person or Court to enter upon on enquiry whether it can exercise certain powers. This meaning is implicit in the first sense in which Lord Pearce used the word and clearly distinguishes between jurisdiction to consider whether a power can be exercised and the exercise of the power. Section 340(1) confers jurisdiction on a High Court Judge to consider the circumstances, when on the application of the prosecutor, he can exercise the power to direct the Registrar to file an information if satisfied that the requirements have been complied with. It is surely not satisfying the requirements that confers jurisdiction on the Judge. That only predicates the exercise of his powers to give consent. There is no doubt that in the original and narrow sense in which the word jurisdiction is used, the 1st respondent has jurisdiction to enter into inquiry to exercise the power to give consent. I accept that interpretation of jurisdiction to be correct and applicable to the case in hand. It is therefore a different consideration, which is not want of jurisdiction, whether the preconditions for giving consent have been satisfied. He may have given the consent in bad faith as alleged, or may have based his consent on some matters which he had no right to take into account – or indeed erroneously. The relevant consideration for determining whether he is protected under section 88(1) are (a) was the act a judicial act, that is a function done in the exercise of his duties as a judge, or (b) was the act complained of within the jurisdiction of the Judge The question of his motives is irrelevant.

In Sirros v. Moore (supra) at p. 788 Buckley L.J., echoing earlier dicta on the principle stated,

If a Judge acting judicially, does something which is within his jurisdiction, the law will not permit his motives to be impugned in an action brought by anyone who has sustained damage by reason of the act.

See also Denning MR at p. 671. Anderson v. Garris (supra) at p.871, per Lord Exher, Kay J at p. 672, A.L. Smith L.J at p. 673, Fray v. Blackburn (supra) per Crompton J at p. 578.

From the analysis of the judicial authorities cited in this judgment and the construction of section 88(1) of the High Court Law of Lagos State, the two questions posed must be answered in the affirmative. The exercise of the power to give consent to an application to file information for a prosecution of the appellant was done by the 1st respondent in his capacity as a judge, and the act was done within his jurisdiction. 1st respondent is therefore fully protected from suit. No action is therefore maintainable against him on that ground.

Since 1st respondent acted within his jurisdiction, the question of the bona fides, etc. of his act does not arise. The averments tending to show mala fides, are in the circumstances, scandalous and irrelevant. The case has been argued by appellant in person. This appears to be the tradition in many of the actions of this nature – See Everett v. Griffiths (supra); Anderson v. Gorrie (supra); Fray v. Blackburn (supra); Taaffee v. Downes (supra). The aggrieved are usually persons of strong conviction in the righteousness of their cause. But the calumny invectiveness in their speeches and scandalous nature of the allegations introduced have evoked the public policy behind the protection of the Judge who traditionally and in the interest of justice is not expected to reply.

The Rationale for the immunity.

In Taaffee v. Dawnes (supra) Fox J. stated the principle at considerable length, as follows –

The principle at law, of exemption from being sued for matters done by Judges in their judicial capacity, is of great importance. It is necessary to the free and impartial administration of justice, that the person administering it should be uninfluenced by fear and unbiased by hope. Judges have not been invested with this privilege for their own protection merely; it is calculated for the benefit of the people, by ensuring to them a calm, steady and impartial administration of justice; it is a principle coeval with the law of the land, and the dispensation of justice in this country; and is founded on the very frame of the constitution; it is to be met with in the earliest books of law; and has been continued down to the present time, without one authority or dictum to the contrary, that I have been unable to find.

“It appears to be most necessary that a Judge administering justice shall not be liable to answer for acts done judicially by him, by the way of action or prosecution; they are only answerable for their judicial conduct in the High Court of Parliament; and without the existence of this principle, it is utterly impossible that there could be such a dispensation of justice, as would have the effect of protecting the lives or property of the subject. A Judge must – A Judge ought to be uninfluenced by any personal consideration whatsoever operating upon his mind, when he is hearing a discussion concerning the rights of contending parties; otherwise instead of hearing them abstractedly, a considerable portion of his attention must be devoted to himself. There is something so monstrous in the contrary doctrine, that it would poison the very source of justice, and introduce a system of servility, utterly inconsistent with the constitutional independence of the Judges, – an independence which it had been the work of ages to establish, and would be utterly inconsistent with the preservation of the rights and liberties of the subject.

In Sirros v. Moore (supra) at p. 732, Denning M.R. wisely stated the reason for the immunity of the High Court Judge as follows-

The reason is not because the Judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.

In Cornett v. Perrand (1827) 6 B & C 611 at p.625, Lord Tettenden C. J. also said –

This freedom from action and question at the suit of an individual is given by the law to the Judges, not so much, for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment. as all who are to administer justice ought to be.

Identical opinions were expressed by Kelly C.B. in Scott v. Stansfield (supra) at p.223 and Anderson v. Corries (supra) at p. 671, and more fully by Denning M.R. in Sirros v. Moore (supra) at p. 785. In Onitiri v. Ojomo (Supra) De Commarmond SPJ, also said, at p. 23-

It is clear to me that the law giver intended that a Magistrate should not be inhibited from doing his duty, or what he conceives to be his duty, by fear of being sued if he makes a mistake. This to my mind is a most important provision. It does not mean that a Magistrate can be reckless…………………………

There is no doubt that the above dicta apply with equal validity, force and relevance to our society. It is of considerable interest to the administration of justice and the stability of our society and constitution that the thin and fragile fabric of our judicial wall should be protected from the wanton attacks of rate litigants whose only grievance is that they have lost their cause of falsely believe that they are persecuted. However, even where the grievance is right, where the effect is aimed at creating a destablising effect in the administration of justice. the greater interest of the public in the society and in the maintenance of an uninhibited administration of justice must prevail. The claim of the appellant falls within the category of cases where public policy puts its weight behind the administration of justice to protect the Judge from wanton attack. The grounds of appeal I, II and IV fail and are hereby dismissed.

The 2nd respondent is concerned with grounds III and V of the grounds of appeal. Ground III complains that the Justices of the Court of Appeal held erroneously that neither respondent acted maliciously, and ground V also relying on Inspector-General of Police v. Olatunji 21 NLR. at p. 52, that the Court erred in law that malicious actions are protected under the Public Officers Protection Law. I have already held that with respect to the 1st respondent, the acts complained of being in coram judice; the question of malice of mala fides is irrelevant and does not arise.

Public Officers Protection Law

The submission of Chief Williams in respect of the 2nd respondent was that the action against him was statute-barred, and that appellant had lost his right of action.

It is clear from the averments in the statement of claim of the appellant that the 2nd respondent committed the act complained of on the 6th October, 1978; and appellant filed his writ of summons in respect of the act claiming the relief on the 3rd day of August, 1981, – a period of two years and 9 months and 28 days. Section 2 of the Public Officers Protection Law relied upon by the 2nd respondent provides as follows-

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 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, as proceeding shall not lies 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, prosecuting of proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within the months after the discharge of such person from prisons;

It is clear from the averments that appellant does not fall with the category of persons referred to in the provision to paragraph (a) of the section.

Constitution of S.2(a)

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 the plaintiff, proceeding shall not be brought after the time prescribed by the statute – see Obiofuna v. Okoye (1961) 1 All NLR. 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. A cause of action means the factual situation stated by the plaintiff, if substantiated, entitles him to a remedy against the defendant -See Latana v. Cooper (1964) 2 All E.R. 929. The claim must rest on and be supplied by a cause of action. In Riches v. DPP (1973) 2 All E.R. 935, appellant who was prosecuted with others in connection with an offence under the Agriculture Act, 1947, was convicted, by the trial Court. His conviction was subsequently quashed on appeal. Appellant issued a writ of summons against the DPP claiming damages for malicious prosecution. The appellant’s conviction was quashed on 7th April, 1965, in the Court of Criminal Appeal, the action against the DPP was brought on the 6th March, 1972. The DPP applied under Order 18, R. 19 to strike out the statement of claim on the grounds that it disclosed no reasonable cause of action, and that the facts and matters relied on occurred more than six years before the issue of the writ and claim and was therefore barred by the Limitation Act 1939. The action was accordingly dismissed. The appeal to the Court of Appeal was also dismissed. The reason given for dismissing the appeal which apply mutatis mutandi to the appeal before us are that

“……it is difficult to see why a defendant should be called on to pay large sums of money and a plaintiff permitted to waste large sums of his money or somebody, else’s money in an attempt to pursue a cause of action which has already been barred by the statute of limitations and must fail.” (per Davies LJ. at p. 939).

Stephenson LJ described such a claim as an abuse of the process of the Court ’97 (See p. 941), Lawton LJ, went further to say that the reason for striking off such actions which are statute-barred is – to prevent parties being harassed and put to expense by frivolous, vexatious or hopeless litigation. It would be contrary to the public interest that justice should be shackled by rules of procedure when the shackles will fall to the ground the moment the uncontested facts appear and that is just this case.” (see p. 942.)

It is on the facts clear that appellant has no cause of action against 2nd respondent having not brought the action within the prescribed period of three months from the accrual of the cause of action – (See Adeyerno v. Adegboyega & Commissioner of Police (1973) Vol. 3, Part 11 ECSLR. 991, Olatawura J.). 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 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. I therefore agree entirely with the appellant that the Court of Appeal was wrong, but for different reasons, to hold that 2nd respondent was not actuated by malice. Similarly, appellant was in error to contend that the question of the malice with respect to the conduct of the 2nd respondent was an issue before the Court of Appeal. 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 Nwankwerre v. Adewunmi (1967) N.M.L.R. at p. 45 are all irrelevant to the determination of this appeal.

I now turn to the first claim endorsed on the writ of summons. This was a claim seeking a declaration that the preferment of Charge No. LCD/24/78, The State v. Fred Egbe, by the 2nd defendant in furtherance of the illegal document and the arraignment of the plaintiff in furtherance of the charge are illegal and void.

It is relevant to mention that appellant averred in paragraph 16 of the statement of claim that both respondents knew that “no offence was disclosed by the statements of the witnesses and that” “they neither believed that the plaintiff had committed any offence”. Appellant also referred to the judgment of the Court of Appeal in FCS/71/79, which quashed the purported indictment. It is therefore clear that the question of the nullity of the information against appellant has been put beyond any controversy by this judgment of the Court of Appeal.

Counsel for the respondent has aptly described this claim as an abuse of the process of the Court. It is elementary and trite law that where a Court has quashed an indictment, the proceedings so far as the records of the Court are concerned are deemed never to have been valid. The contention of appellant before us was that the object of the declaration is to expunge the proceedings from the records of the Court as having never existed.

The fact that a prosecution was initiated against appellant is a matter of record. It is also a matter of record that the proceedings are a nullity and never were legally valid. There is no doubt that the effort is and will remain a historical fact. Appellant has already got his relief from the unlawful and illegal prosecution by the declaration of judgment of the Court of Appeal in FCA/71/79 that the proceedings are null and void. It seems to me that no additional relief in any sense will accrue to the appellant by the declaration sought even if granted.

The claim here seems to me insubstantial and indirect and would not relieve appellant from any liability or disadvantage; because there is neither. This being a declaratory remedy, accepting in its fullest sense of facts of this case and the purpose for which the declaration is sought, there are no sufficient grounds for making a declaration such as the one being urged in respect of the matter. The application tantamounts indirectly to an appeal against the judgment of the Court of Appeal which allowed the appeal of the appellant and quashed the information against him. It seems to me not strong enough to describe this head of claim as both vexatious, frivolous and an abuse of the process of the Court. The flexibility in the scope of orders for declaration should not be exposed to abuses of this scandalous nature. The Court of Appeal was in my opinion right to have endorsed the dismissal of this claim by the learned Judge. For the reasons I have stated above, the claim is dismissed. All the grounds of appeal have failed and are hereby dismissed. The judgment of the Court of Appeal is affirmed. Appeal is dismissed in its entirety.

Appellant shall pay N300 as costs of this action.

A. G. IRIKEFE, J.S.C. (Presiding): I had a preview of the judgment just read by my learned brother, KARIBI-WHYTE, J.S.C. and I agree that it has adequately dealt with all the issues raised in this appeal.

By way of further emphasis, I wish to state that, as regards the 1st respondent the Chief Judge (now retired), not only was he immune from process under Statute (Section 88(1) of the High Court Law of Lagos State – Cap 52), he was equally beyond the reach of process under the common law. See Anderson v. gorrie – (1895) 15 Q.B. p.668 at p.672 where KAY, L.J. had this to say:-

I take the law to be clear that for an act done by a judge in his capacity of judge he cannot be made liable in an action, even though he acted maliciously and for the purpose of gratifying private spleen.

See also Haggard v. Pelicier Freres – (1892) A.C. p. 61 at p. 68 where Lord WATSON – after dwelling on the scope of the immunity enjoyed by judges of courts of record stated thus:-

It is due to the appellant……….although their Lordships do not mean to suggest that such an imputation, if it had been made and proved, would have deprived him of the immunity which the law accords to a judge in his position. The remedy, when such a case does occur, does not lie in an action of damages against the offending judge, but by making a representation to the authorities whose duty it is to see that justice is administered with due care and attention.”

The position in Nigeria is not dissimilar. Under the 1979 Constitution of the Federal Republic of Nigeria, anyone seeking redress against a judge for abuse of his office as a judge could look to the Judicial Service Comm ission or the Advisory Judicial Committee under the present dispendation.

The allegation here is that the 1st respondent conspired with the 2nd respondent in order to use judicial process to serve his own ends, that is, to even out the scores with the appellant whom he assumed, had placed a stumbling block in the way of his property being let.

That may well be so, but so long as the 1st (as per the consent to prosecution papers filed) he still cannot be sued, The same situation arose in 1970 in the then Mid-Western State when late Barrister Godwin Mogbeyi Boyo sued retired Justice FRANKLIN ORITSEMUEYIWA ATAKE who had issued a warrant for the former’s arrest for contempt of court. I ruled at the time that no matter what the motive of Justice Atake might have been, he was immune from process. See Boyo v. Atake- Mid-Western State of Nigeria Law Reports (1970) p. 197. The appeal against this decision by the applicant BOYO was dismissed.

Accordingly, I also would dismiss this appeal and adopt all the orders made in the lead judgment inclusive of the order as to costs.

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SC.77/1984