Victor Iyere & Ors. V. Simeon Duru & Anor (1986)

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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.