Victor Iyere & Ors. V. Simeon Duru & Anor (1986)
LawGlobal-Hub Lead Judgment Report
KAZEEM, J.S.C.
On 24th September, 1986, this appeal was allowed by me and the judgment of the Court of Appeal, Benin City dated 18th September, 1980 was therefore set aside. Accordingly, the judgment of the trial court dated 7th February, 1978 was restored. I now give my reasons for doing so.
In April, 1977, the appellants who were Professional Motor Vehicle Drivers and Supervisors at the Uromi Motor Park had separately sued the two respondents for a sum of N3,000.00 each as special and general damages for their unlawful imprisonment by them for ninety-six (96) hours at the Ubiaja Police Station. The imprisonment was on the pre that the appellants were lawfully arrested and charged with offences of assault with intent to steal from one Clifford Nwude; and causing obstruction on the public highway along Uromi-Uhiaja by the junction of the new Iguehen Road. The 1st respondent was then a Police Corporal who was under the direction and control of the 2nd respondent who was then the Divisional Police Officer in charge of the Agbazilo Local Government Ubiaja. The two respondents purportedly refused to grant the appellants police bail after their arrest and purported to have detained them by Remand Warrants signed by a Justice of the Peace. The three suits were later consolidated for trial.
At the trial, evidence was adduced that on Thursday the 17th February 1977, there was an accident involving the appellants and one Clifford Nwude, along Uromi-Ubiaja Road when the said Clifford Nwude, a Professional Driver, was driving a tipper lorry along the road. The appellants were said to have obstructed the road with a taxi cab No. MGX 750 as a result of which the said Clifford Nwude reported a case of assault with intent to steal against the appellants at the Police Station Ubiaja.
The appellants denied obstructing the road, but said that they took that Taxi cab to Ubiaja to collect the driving licence of the 2nd Appellant which he had earlier sent there for renewal. But it turned out later that the appellants had gone on the road to check on vehicles which had refused to make use of the motor park where they claimed to be supervisors; and that it was in the process of sorting out those whom they regarded as defaulting drivers that they caused the said obstruction on the highway. Consequent upon the report by Clifford Nwude, the appellants were arrested on Friday the 18th February, 1977 for the said offences of attempting to steal and causing obstruction; they were taken to Ubiaja Police Station and detained on Remand Warrants signed by a Justice of the Peace.
It was said that it was because there was no Magistrate available at Ubiaja at the material time that the Police got a Justice of the Peace to issue the Remand Warrants – Exhs. D, E & F at his house at about 3.30 p.m. when no court was then in session. However, there was conflicting evidence that the appellants had been detained by about 1.45 p.m. when the 2nd respondent was told by the 1st respondent that there was no magistrate available in town. It appears that the appellants were not given any opportunity of applying for bail before they were detained at the Police Station on a week-end on the Remand Warrants signed by the said Justice of the Peace. The respondents relied on the Remand Warrants as their authority for keeping the appellants in custody.
Learned Counsel for the appellants at the trial contended that it was not proved that those warrants were signed by a Justice of the Peace; that the issue whether a particular person is a Justice of the Peace could not be taken judicial notice of under Section 73 of the Evidence Law; and that a Justice of the Peace has no authority to order a remand warrant and as such the detention was unlawful. In reply, learned Senior State Counsel contended that a Justice of the Peace, like a Magistrate could order a remand; that the police under Section 23 of the Police Act and Section 17 of the Criminal Procedure Law could detain in certain circumstances; and that Section 57 of the Magistrates’ Courts Law protects such Justice of the Peace and any person carrying out his orders.
On the totality of the evidence before the learned trial Judge, he found that the Remand Warrants were signed before 1.45 p.m. and that it was not around 4 p.m. when no magistrate was available at Ubiaja; that before the warrants were signed, no opportunity for bail was at that time or thereafter offered the appellants in accordance with Section 17 of the Criminal Procedure Law; that what happened at the time was a result of an erroneous and undue exercise of authority on the part of the two respondents even though it might not have been done maliciously. Moreover, the learned trial Judge duly considered the validity of the Remand Warrants (Exhs. D, E & F) in relation to Form 12 used for issuing them and which should have been issued in accordance with the provisions of Section 236 of the Criminal Procedure Law, but without regard to the provisions of Section 21(1) of the 1963 Constitution of the Federal Republic of Nigeria which preserves the right to personal liberty by a citizen. He also considered the provision of Section 57(2) of the Magistrates’ Courts Law which protects the officer of any court or any person bound to execute the lawful warrants or orders of any magistrate, Justice of the Peace acting judicially or other persons acting judicially, against liability for any civil action. He then came to the following conclusion:-
From any point of view those warrants were utterly improper and the said Justice of the Peace had no powers to issue them. Therefore they were unlawful and void. I am also of the opinion that when the alleged Justice of the Peace issued those warrants he was not acting judicially and so section 57(2) of the Magistrates’ Court Law cannot as such protect the defendants……. It is of course to be assumed that a Justice of the Peace or any other person acting as a court will be taken to have acted judicially when he performs an act which he believes he has jurisdiction to do in the process. But here the said Justice of the Peace did not act as a court or in a judicial capacity nor can I take what he did to be a judicial act. It does not come within what is known as judicial acts in the circumstances: see also Everrett v. Griffiths and another (1921) 1 A.C.631 at pp.682 – 683. The office of a Justice of the Peace depends on statute which has been considered already. If he hurts anyone by his void act, any person executing that act, like the defendants in this case, renders himself liable.”
Consequently, the respondents were found liable for false imprisonment, and ordered to pay N275 damages to each appellant with N60.00 costs each.
On an appeal to the Court of Appeal, Benin City against the decision by the respondents, the submissions centred around whether or not the Justice of the Peace was acting judicially when he issued the Remand Warrants Exhs. D, E & F – on Form 12; and whether by acting on such warrants in detaining the appellants, the respondents were protected against liability for civil action by Section 57(2) of the Magistrates’ Courts Law. After hearing submissions of learned counsel, the Court of Appeal unanimously took the view that a Justice of the Peace in signing a warrant for a remand was performing a judicial act; that it could not be otherwise; that Section 57(1) of the Magistrates’ Courts Law Cap.97 amply protected him: and that Section 57(2) of the same Law clearly gave protection to the respondents, In the result, the appeal was allowed.
Against that decision, the appellants have appealed to this court on the following two grounds:-
“Grounds of Appeal
The Learned Justices of the Federal Court of Appeal erred in law in their interpretation of Section 57(1) of the Magistrates’ Courts Law Cap.97 to the effect that a Justice of the Peace in signing a warrant for the remand of a suspect during Police investigation performs a judicial act that is protected by section 57 of the same Magistrates’ Courts Law.
Particulars of Error
(i) Powers and functions of Justices of the Peace spelt out by Section 13 of the Magistrates’ Courts Law of the Bendel State do not include signing of remand warrants by Justices of the Peace to enable suspects to be sent to prison or any custody anterior to the institution of criminal proceedings in a case under Police Investigation.
(ii) A Justice of the Peace who signs a remand warrant brought to him at home by a Police man does not act judicially within the contemplation of Section 57 of the Magistrates’ Court Law so as to make such warrant a lawful warrant.
- The learned Justices of the Court of Appeal erred in law when they held inter alia “Respondents sued for false imprisonment an action which is not available to them where there has been an intervening Warrant duly signed by a Justice of the Peace acting judicially,”
Particulars of Error
The Justice of Peace could not have been acting judicially when he signed the Warrants as he had no duty in law to sign remand warrants.”
In arguing the appeal, Mr. Ihensekhien, learned counsel for the appellants referred to the Remand Warrants – Exhs D, E & F – and submitted that they were issued on Form 12 in the first Schedule to the Criminal Procedure Law Cap. 49 of Laws of Bendel State; and that such Form can only be used after a suspect or an accused person has been brought to Court. He then said that in this case, the suspected persons had not been charged before the court as shown on the warrants. Learned Counsel also referred to the provisions of Section 13 of the Magistrates’ Courts Law – Cap. 97 of the Laws of Bendel State (which defines the powers and functions of Justices of the Peace); and submitted that even though Justices of the Peace like magistrates have powers to issue certain summons and warrants, it does not appear that they can issue warrants to remand any person in custody unless in accordance with section 236(1) of the Criminal Procedure Law and after a hearing in court. Finally, it was contended that in this case, the Justice of the Peace signed illegal warrants; was not acting within his jurisdiction when he did so; and the respondents were not able to show at the trial that the Justice of the Peace was acting lawfully when he signed the warrants.
In reply, Mrs. Akomolafe- Wilson, Principal State Counsel Bendel State conceded that the warrants were not signed within the jurisdiction of the Justice of the Peace, and that the warrant were wrong; even though she was reluctant to admit that they were unlawful warrants. However, she relied heavily on the provisions of section 57(1) & (2) of the Magistrates’ Courts Law, and submitted firstly that the Justice of the Peace was acting judicially when he signed the warrants; and he was therefore protected from civil action by subsection (1) of section 57 of that Law. It was further submitted that the protection given to the Justice of the Peace by subsection (1) is extended by subsection (2) of that section to any person acting under the order of the Justice of the Peace or any warrant issued by him. Consequently, she concluded that the respondents were not liable for anything done by them pursuant to those warrants. She cited S. A. Onitiri v. M. E. Ojomo 21 N.L.R.19 at pp.22 and 23 in support of her contentions.
It seems to me that the issues for determination in this appeal fall within a narrow compass. There was no question of malice suggested or canvassed in the appeal. Hence, it is not a case of malicious prosecution. The complaint relates to a denial of fundamental human right which is a breach of section 21(1) of the Constitution of the Federal Republic of Nigeria 1963 dealing with deprivation of personal liberty. However, no action for a breach of that right has been instituted by the appellants: and no relief has been claimed under the section. Yet sub-section(4) of section 21 of that Constitution entitles any person who is unlawfully arrested or detained, to claim compensation. But what has been claimed in this appeal is a tortious liability of false imprisonment.
It is not disputed by the respondents that the appellants were arrested and detained from Friday the 18th February, 1977 till 8 a.m. on Monday 21st February, 1977 even though the period of commencement was disputed. The learned trial judge however found from the evidence that the appellants were indeed detained around 1.30 p.m. on Friday and that they were denied an opportunity of being granted either police bail or court bail at a time when they could easily have been so granted. Moreover, the respondents having admitted the detention of the appellants, the onus was on them to prove that such detention or imprisonment was lawful: See Joe Sandy v. Johanne Hotogua & Anor. 14 WACA. 18. It was therefore to justify their action that the respondents relied on the Remand Warrants – Exhs D, E & F -; and sought immunity from legal proceedings under section 57(2) of the Magistrates’ Courts Law. It was submitted by Mrs. Akomolafe-Wilson on behalf of the respondents that the Justice of the peace was acting judicially when he issued the warrants; that he was as such protected from civil liability by section 57(1) of the Magistrates’ Courts Law and that such protection could avail the respondents who acted on the warrants, under section 57(2) of the same Law.
The questions that have therefore arisen for determination are:
(i) Whether the remand warrants Exhs D, E and F issued on Criminal Form 12 were in compliance with Section 236(1) and (2) of the Criminal Procedure Law
(ii) Whether the said warrants were such “Lawful warrants” contemplated by section 57(2) of the Magistrates’ Courts Law as being “within the jurisdiction of the person issuing them” when a magistrate can only issue such remand warrants in the course of actual and not contemplated proceeding
(iii) Whether the Justice of the Peace was acting judicially when he issued those remand warrants
and
(iv) Whether the respondents could claim protection under Section 57(2) of the Magistrates’ Courts Law for acting on those warrants in detaining the appellants
In order to answer those questions, one has to examine carefully the Remand Warrants Exhs D, E & F; and the provisions of Section 236 of the Criminal Procedure Law, sections 13 of the Magistrates’ Courts Law, and section 57(1) and (2) of the Magistrates’ Courts Law.
Exhs. D, E & F were adapted from the Criminal Form 12 for the purpose of remanding the appellants in custody. But section 236(1) of the Criminal Procedure Law under which those remand warrants were issued provided as follows:-
“If during any proceedings before a court it becomes necessary to adjourn the hearing of the same, the court may from time to time adjourn such proceedings after or without hearing the evidence, if it thinks fit, to a certain time and place, to be then appointed in the hearing of the parties or the legal practitioners representing them and If the defendant is in custody the court may admit him to bail, as in this Law provided, or by its warrant remand him to prison or other suitable place of security for any time not normally exceeding eight days but if necessary for such longer period as the court may consider advisable, and if such remand shall not be for longer than three clear days the court may order the person in whose custody the person remanded is, or any other fit officer or person, to continue to keep the accused in his custody, and to bring him again before the court at the time appointed for continuance of the case.” (The italics are mine)
It seems obvious from a comparison of Exhibits D, E and F with the provisions of section 236(1) of the Criminal Procedure Law and the contents of the Criminal Form 12, that those warrants were false. In the first place, the section together with the Form clearly envisage the power to remand when proceedings are already pending before a court presided over by a Magistrate or Judge ordering the remand. Secondly, the matters that may be deleted in that Form do not seem to include the place of detention. That place is the prison, and not the Police Station. Thirdly, the person who is commanded to take custody of the detained person is the Superintendent of Prisons and not the Superintendent of Police, But what the remand warrants purported to do was to provide for detention in the Police Station other than the Prison as provided by Statute. They also purported to have been issued in the Magistrate’s Court of Ubiaja whereas according to the evidence, it was signed in the house of the Justice of the Peace.
It is however to be observed that section 21 of the 1963 Constitution does not approve of any detention unless by a procedure permitted by the law; and it has also been conceded by the learned counsel for the respondents that the remand warrants were wrong; though she would not admit that they were unlawful.
Also Section 13 of the Magistrates’ Courts Law (which defines the powers of a Justice of the Peace) provides as follows:-
“Subject to the provisions of this Law and of any other Act or Law, every Justice of the Peace shall, subject to any exceptions which may be contained in the appointment, within the area in and for which he holds such office have
(a) power to preserve the peace to suppress riots and affrays and to disperse all disorderly and tumultuous assemblages, and for any of these purposes to call in the aid and assistance of any person, who shall be bound to obey all such lawful commands;
(b) power to direct post-mortem examination,; under section 12 of the Coroners law;
(c) all the powers, rights and duties of a magistrate under this any other Law or Act to –
(i) issue summonses and warrants for the purpose of compelling the attendance of accused persons or persons as witnesses before a court;
(ii) issue writ of summons and summonses in civil causes;
(iii) admit to bail persons who are accused but not convicted of crime;
(iv) issue search warrants: and
(v) take solemn affirmations and statutory declarations.
But there is nothing in the section which empowers a Justice of the Peace to issue a remand warrant anterior to any proceedings in court, even though he can exercise the powers of a magistrate when so appointed. Having regard to the circumstances. I am of the view that the remand warrant were issued in breach of section 236(1) of the Criminal Procedure Law and the Justice of the peace who signed them had no power to do so.
It was argued that the Justice of the peace was acting judicially when he signed the warrants and reliance was placed on the authority of the observations of Lopes LJ. in Royal Acquarium v. Parkins (1892) 1 Q.B.431 at p.452. In that case the learned Lord Justice said:-
“The word “judicial” has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in court, or to administrative duties which need not he performed in court, but in respect of which it is necessary to bring to bear a judicial mind – that is a mind to determine what is fair and just in respect of the matters under consideration. Justices, for instance, act judicially when determining in their private room what is right and fair ill some administrative matter brought before them as for instance, levying a rate.”
But it seems to me that the observation was quoted out of con. It was made in a case of slander where the defence of privilege was put up; and it was contended that the Local Government Act, 1888 had conferred absolute privilege upon members of the County Council because there had been transferred to them by that Act certain businesses of the quarter sessions in respect of which they had judicial duties to perform. It was when considering the meaning of the word “Judicial” in the expression “Judicial duties” that Lopes L.J. made that observation. But after considering certain sections of the Local Government Act, 1888 itself, he came to this conclusion:
“I understand that the legislature intended that all the administrative business of the quarter sessions was to be transferred to the county council, and they were in all respects to be placed in the same position as the justices had previously occupied with respect to that administrative business, and in respect of it were to enjoy the same privileges and immunities which the jurisdiction to perform any duties which the justices discharged in court. That part of the judicial business of Justices of the Peace was to remain undisturbed in the Justices. If this is a correct view, the County Council did not acquire the absolute privilege now contended for. The justices never had it when discharging administrative duties in their private room. They could only invoke it when administering the law in court. The country council have not that jurisdiction to which only the absolute privilege can attach.” (The Italics are mine)
The evidence adduced in this case was that when there was no magistrate court in session and there was no magistrate available in Ubiaja at the time the appellants were to he detained in police custody for the week-end of 18th to 21st February 1977, the 1st respondent on the order of the 2nd respondent took the remand warrants – Ex”s. D, E & F – to the house of the Justice of the Peace for his signature. Even though that may be regarded as an administrative or ministerial act, it is not in my view a judicial act. According to the provisions of section 236(1) of the Criminal Procedure Law it is mandatory that no remand warrant on Criminal Form 12 can be issued except in the process of pending legal proceedings. Moreover, the case of Brown v. Chapman (1848) 6 C.B. 365 or 136 E.R. 1292 clearly illustrates the distinction between a ministerial and judicial act. In that case the plaintiff had gone before a magistrate voluntarily to meet any charge which the defendant might bring against him. The magistrate declined to deal with the case unless a definite charge was made. The defendant said that the plaintiff had been embezzling. The magistrate said, “Do you give him into custody”
The defendant replied, “I do give him into custody.” It was held that he was not liable in an action of trespass, because the imprisonment was the judicial act of the magistrate.
It is important to note that in Brown v. Chapman (supra), the act was in the process of a legal proceeding and not an act performed in the private room of the magistrate.
In the circumstances, I am of the view that the Justice of the Peace could not have been acting judicially when he signed the remand warrants in his private room an act which he clearly had no power to perform under section 13 of the Magistrates’ Courts Law and in breach of section 236(1) of the Criminal Procedure Law.
The next question for consideration is whether in the circumstances of this case, the respondents could claim protection for their action under section 57(1) & (2) of the Magistrates’ Courts Law. That section provides as follows:
“(1) No magistrate, Justice of the Peace or other person 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 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 the act complained of.
(2) No officer of any court or other person bound to execute the lawful warrants or orders of any such magistrate, Justice of the Peace or other person acting judicially, shall be liable to be sued in any civil court, for the execution of any warrant or order which he would be bound to execute, if within the jurisdiction of the person issuing the same.”
Here again, the protection can only be claimed under this section (i) when the Justice of the Peace was “acting judicially” or was sued “for any act done or ordered to be done by him in the discharge of his judicial duty whether or not within his jurisdiction”; and (ii) when any person was bound to execute the lawful warrants or orders of the Justice of the Peace acting judicially.
It has already been shown that the Justice of the Peace was not acting judicially or performing judicial act when he signed the three remand warrants- Exhs D, E & F – and that those warrants were unlawful.
The respondents relied on the decision on Onitiri Ojomo (Supra), but I do not think that that decision is tenable in this case. It was very clear in the Onitiri’s case that the magistrate acted throughout during the course of Criminal proceedings; and he did what was complained of during the course of those proceedings, and not in the magistrate’s private room. It is therefore not surprising that it was held that the magistrate was acting judicially when he ordered that the plaintiff in that case be remanded in custody for contempt.
Even though the case exemplifies and interprets the provisions of section 61 (1) of the Magistrates’ Courts Ordinance which is in pari material with section 57(1) of the Magistrates’ Courts Laws, I am of the view that it is untenable in this case. What seems to be apposite to the circumstances of this case is the decision in Watson v. Bodell (1845) 14 M & W 57 (153 E.R. 388).
In that case the plaintiff was ordered to be detained by the Commissioner of a District Court of Bankruptcy of England which order the defendant, and messenger of the court, carried out as he ordinarily had a duty to do. The plaintiff later brought an “action of trespass for the imprisonment” against the defendant. Parke B. delivering the judgment of the Court, held that the office of a “commissioner of bankruptcy” depended on statute law; and that he had no other power than that which was so given by statute, and in the mode so prescribed; that the power did not cover the order made, and therefore the order in question was without jurisdiction, and was void. Consequently, the defendant who must be assumed to have known of such want of jurisdiction was also liable. This decision clearly shows in my view, that any person who acts on an unlawful order made in breach of the provisions of a statute as in this appeal, cannot be protected from an action of trespass.
It cannot be over-emphasized that police officers who in the performance of their official duties find it necessary to apply for remand warrants must take cognizance of the provisions of section 32 of the Constitution of the Federal Republic of Nigeria 1979. This Section which is similar to Section 21 of the 1963 Constitution gives to every person a fundamental right to personal liberty which right is jealously guarded by every citizen of Nigeria.
A person cannot therefore be deprived of such right except in the manner prescribed by that section and in accordance with a process permitted by law. A breach of that right entitles the victim to an appropriate remedy under the law. Hence whenever it becomes desirable for the police in the course of their investigation of crimes triable in a Magistrate Court, to cause the remand in custody of any suspect, and in circumstances where such suspect cannot be granted bail immediately, the provisions of section 236(1) of the Criminal Procedure Law must be strictly observed; and there must be pending criminal proceedings before Criminal Form 12 can be used. Any person who fails to observe the provisions of that section cannot avail himself of the protection prescribed under section 57(2) of the Magistrates’ Courts Law.
It was for the above reasons that I allowed this appeal and set aside the decision of the Court of Appeal.
OBASEKI, J.S.C. (Presiding): On the 24th day of September, 1986 after hearing arguments of counsel and reading the briefs of arguments filed by the parties in this appeal, I allowed the appeal of the appellants, set aside the judgment of the Court of appeal and restored the judgment of the trial Court dated 7th February, 1978 in favour of the appellants. I then reserved my reasons for the judgment till today. Since then, I have had the advantage of reading in draft, the reasons for Judgment delivered a short while ago by my learned brother, Kazeem, JSC. in the appeal. It was for those reasons so ably expressed by him that I allowed the appeal. However, I consider it necessary to add the following comments.
The principal question raised in this appeal is whether the Remand Warrants Exhibits D, E and signed by a Justice of the Peace at the request of the respondent had legal validity to justify the remand of the appellants by the respondents in police custody from Friday afternoon of one week to Monday morning of the following week.
There is no doubt that under section 17 of the Criminal Procedure Law of Bendel State Cap 49 Vol. 2 Laws of Bendel State 1976, the respondent could have detained the appellants in police custody for the relevant period if they considered the offence serious enough to warrant the detention before bringing them before the magistrate. That section reads:
“When any person has been taken into custody without a warrant for an offence other than an offence punishable with death, any officer in charge of a police station may in any case and shall if it will not be practicable to bring such a person before a magistrate or Justice of the Peace having jurisdiction with respect to the offence charged within 24 hours after he was so taken into custody, inquire into the case and unless the offence appears to such officer to be of a serious nature, discharge the person upon his entering into a recognisance with or without sureties for a reasonable amount to appear before a court at the time and place named in the recognisance but where such person is retained in custody he shall be brought before a Court or Justice of the Peace having jurisdiction with respect to the offence or empowered to deal with such person by section 484 as soon as practicable whether or not the police inquiries are completed.”
However, the respondents chose not to rest their authority on that section but under section 236 of the Criminal Procedure Law under which Exhibits D, E and F were issued. This section reads:
“If during any proceedings before a court it becomes necessary to adjourn the hearing of the same, the court may from time to time adjourn such proceedings after or without hearing the evidence, if it thinks fit, to a certain time and place, to be then appointed in the hearing of the parties or the legal practitioners representing them and if the defendant is in custody, the Court may admit him to bail, as in this law provided, or by its warrant remand him to prison or other suitable place of security for any time not normally exceeding eight days, but, if necessary, for such longer period as the Court may consider advisable, and if such remand shall not be longer than three clear days the court may order the person in whose custody the person remanded is, or any other fit officer or person, to continue to keep the accused in his custody, and to bring him again before the court at the time appointed for continuance of the case.”
The facts of the case reveal that the appellants had before Exhibits D, E and F were issued never been charged to Court that the remand warrants were prepared by the appellants and taken to the Justice of the Peace in his house for his signature. But the contents of Exhibits D, E and F presented different facts, i.e. that the appellants had been charged to Court, the Magistrate Court, that hearing of the case had been adjourned, that it was necessary to remand the appellants in police custody till Monday the day to which hearing had been adjourned. If it had been correct that the appellants had been charged before the Magistrate Court and that the magistrate adjourned the hearing and ordered the appellants to be remanded in police custody, the Exhibits D, E and F would have been valid as a judicial act being issued in pursuance of an order of the court. Unfortunately for the respondents, there were no judicial proceedings at all and although the Justice of the Peace was made to believe that there was one and that the remand warrants were prepared in pursuance of the order for adjournment and refusal or failure to order bail for the appellants, the absence of any proceedings before the Magistrate Court deprived them of the protection afforded by subsection 2 of Section 57 of the Magistrates’ Courts Law which reads:
“No officer of any Court or other person bound to execute lawful warrant or orders of any such magistrate, Justice of the Peace or other person acting judicially shall be liable to be sued in any civil Court, for the execution of any warrant or order which he would be bound to execute, if within the jurisdiction of the person issuing the same.”
Contrasted with the provision of subsection 1 of the same section the protection provided by the subsection is very lean, scanty or inadequate and leaves the officer to the vagaries of determining when a magistrate or Justice of the Peace is acting judicially. Provided that a magistrate or a Justice of the Peace at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of, subsection 1 of Section 57 gives him absolute protection from suits for judicial acts. The subsection reads:
“No magistrate, Justice of the Peace or other person acting judicially shall be liable to be sued in any civil Court for any act do or ordered to be done by him, 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 the act to be done.” (Italics mine)
Thus, on the facts of these proceedings, while the Justice of the Peace may receive statutory protection, the appellants are not entitled to receive the statutory protection. This is because the questions:
(1) was the Justice of the Peace acting judicially in the discharge of his judicial duty and
(2) was the act within the limits of his jurisdiction
cannot be answered in the affirmative and this is known to the appellants.
What does “acting judicially” mean in relation to a Justice of the Peace It means simply in relation to an offence or a civil case the hearing of evidence and making orders warranted by the hearing of the case. A Justice of the Peace can act judicially when under Section 11 of the Magistrates Courts Law, the Chief Judge of the State confers additionally to the powers conferred by Section 13 the powers of a magistrate under the Magistrates Courts Law on him. These powers include the power of adjudication. Section 11 expressly provides:
“If a magistrate is not available for the court in any district, or where in respect of any district the Chief Judge for any reason considers it necessary to do, the Chief Judge may by appointment confer upon any person being a Justice of the Peace the powers of a Magistrate of such grade as he may think fit or such of those powers as the Chief Judge may specify and until the Chief Judge revokes the appointment, such a person shall be deemed to be a Magistrate with such powers, in and for the district.”
A Justice of the Peace thus appointed shall not exceed the powers granted him. See Section 15 – Magistrates Courts Law Cap. 97. Thus, invested with such powers, the Justice of the Peace can sit in Court, hear evidence and consider them and make orders on which the judicial mind has been brought to bear. He must act with fairness to all parties and all his actions in relation to adjudication can therefore be termed judicial.
Judicial acts have not been confined to orders made while a tribunal is sitting in court. The term ‘judicial’ does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law. [See Australian Apple & Pear Marketing Board v. Tanking, 66 CLR 77 per Williams, J. J But when a body is bound to “act judicially” as is provided in Section 57(1) and (2) with reference to a Magistrate or a Justice of the Peace, he is bound to hear evidence from both sides and to come to a judicial decision approximately in the same way that a court may do. JR. v. St. Lawrence’s Hospital Catsham Statutory Visitors), ex p Pritchard (1953) 1 WLR 1158; (1953) 2 All ER. 766 768 per Lord Goddard, C.J.] In that case, Lord Goddard said at p.768:
“It is not easy to give an exact definition of what is meant by “act judicially” but I should say that for this purpose it means a body bound to hear evidence from one side and the other. There need not be anything called strictly a lis, but the body would have to hear submissions and evidence by each side and come to a judicial decision approximately the same way that a court must do.”
The powers conferred on a Justice of the Peace by Section 13 are all ministerial powers and do not impose on the Justice of the Peace the bounding duty of hearing evidence from one side and the other and come to a decision. It does not give the Justice of the Peace jurisdiction to try civil and criminal causes or matter the exercise of which would have compelled the Justice of the Peace to act judicially. But when appointed and conferred with the powers of a Magistrate pursuant to Section 11 of the Magistrates Courts Law Cap 97, the Justice of the Peace will have and exercise jurisdiction in civil causes [see Section 19(1), (2) and (3)]; and jurisdiction and powers in criminal causes (see Section 21(1), (2) and (3); Section 22(a) and (b) of the Magistrates Courts Law].
Every Magistrate is given general powers including judicial and administrative powers in relations to the administration of justice (see Section 26). If a Justice of the Peace is not appointed and conferred with the powers of a Magistrate, he does not sit in Court and is not bound by Section 49 of the Magistrates Courts Act Cap 97 which stipulates that:
“The Practice and Procedure of the Court
(a) in its civil jurisdiction shall be regulated by Rules made by the Chief Judge;
(b) in its criminal jurisdiction shall be regulated in accordance with the Criminal Procedure Law.”
“Judicial Act” is, in my view, used in the Bendel State Magistrates Courts Law Cap 97 Section 57(1) and (2) in contrast with purely ministerial acts. This is more so as the Justice of the Peace may not have to discharge judicial duties. The word “judicial”, according to the learned authors of Stroud’s Judicial Dictionary 4th Ed. p. 1448, has two meanings – “it may refer to the discharge of duties exercisable by a Judge or Justices in Court; or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind, i.e. a mind to determine what is fair and just in respect of the matters under consideration”.
The signing of a remand warrant in pursuance of a purported adjournment order made by magistrate that never was, prepared and taken by the appellants to a Justice of the Peace in his home for his signature, cannot amount to a judicial act entitling the appellants to the protection afforded by Section 57(2) of the Magistrates Courts Act Cap. 97.
For the above reasons and the reasons so ably stated in the Reasons for Judgment delivered this morning by my learned brother, Kazeem, J.S.C., I allowed the appeal against the decision of the Court of Appeal.
ESO, J.S.C.: I have had the advantage of a preview of the judgment just read by my learned brother Kazeem. J.S.C. and I am in entire agreement. I view this case from the angle of the power of a Justice of Peace under the Law. A Justice of Peace is a creation of statute and his powers are defined by Statute. Section 13 of the Magistrates Court Law (Cap. 97) Laws of Bendel State defines the powers as follows –
“13. Subject to the provisions of this and of any other Ordinance, every Justice of the Peace shall, subject to any exceptions which may be contained in the appointment, within the area in and for which he holds such office have –
(a) power to preserve the peace, to suppress riots and affrays, and to disperse all disorderly and tumultuous assemblages, and for any of these purposes to call in the aid and assistance of police officers and others who shall severally be bound to obey all such lawful commands;
(b) all the powers, rights and duties of a magistrate under this or any other Ordinance to –
(i) issue summonses and warrants for the purpose of compelling the attendance of accused persons or persons as witnesses before a court;
(ii) issue writs of summons and summonses in civil causes;
(iii) admit to bail persons who are accused but not convicted of crime;
(iv.) issue search warrants;
(v) take solemn affirmations and statutory declarations; and
(c) such other powers and rights and perform such duties of magistrates as may be conferred or imposed upon him by rules of court made under any Ordinance not involving the trial of causes or, in criminal cases, the holding of preliminary investigations.”
One may ask why the powers of the Justice of Peace are so restricted. The creation of the Justice of the Peace was first done by Ordinance 24 of 1943 when Nigeria was a colony. Every administrative officer (in those days mainly expatriate) is an ex officio Justice of the Peace. That being the case the powers conferred by law are quite different from the powers in England. By the Justices of the Peace Act 1361 (34 Edw. 3c.1) the short title to the Act reads –
“First, that in every county of England shall be assigned for the keeping of the peace, one lord, and with him three or four of the most worthy in the county, with some learned in the law, and they shall have power to restrain the offenders, rioters, and all other barators and to pursue, arrest, take, and chastise them according their trespass or offence; and to cause to be imprisoned and duly punished according to the law and customs of the realm, and according to that which to them shall seem best to do by their discretions and good advisement; ….. and to take and arrest all those that they may find by indictment or by suspicion, and to put them in prison; and to take of all them that be not of good fame, where they shall be found, sufficient surety and mainprise of their good behaviour towards the King and his people, and the other duly to punish; to the intent that the people be not by such rioters or rebels troubled nor endamaged, nor the peace blemished, nor merchants nor other passing by the highways of the realm disturbed, nor [put in the peril which may happen] of such offenders…….”
his appointment was owed to a feudal system where he existed to assist a feudal lord in manners so stated.
It is to be seen that by this, the powers are extensive – far more extensive than the powers conferred by section 13 of the Magistrates Court Law system.
A Justice of Peace under our Law cannot issue a remand warrant before proceedings are commenced. On the criminal scene, he can admit to bail those who have been charged but have not been convicted upon offence, he can issue such warrants, he can issue summons and warrants to compel the attendance of accused persons or witnesses, he can suppress riots and affrays and disperse disorderly or tumultuous assemblages. He cannot as the Lord with whom will be three or four Justices of the Peace and some learned in the law pursue arrest, take and chastise offenders in the manner stipulated by the Act of Edward 3.
It is obvious therefore that the power exercised by the Respondents in this case cannot be protected by law. A fortiori they cannot seek sanctuary under S.57(1) and (2) of the Magistrates Courts Law.
I allowed the appeal for these reasons and the reasons stated more fully in the judgment of my learned brother, Kazeem, J.S.C.
Other Citation: (1986) LCN/2263(SC)
