EGBE V. ALHAJI & ORS.

• Pages: 306-342

306

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NIGERIAN SUPREME COURT CASES

[1990] 1 N.S.C.C.

It is for these and the more detailed reasons in the lead judgment of my learned

brother, Belgore, J.S.C. that I am also allowing the appeal. I abide by the consequen-

tial orders made in the lead judgment, including that of costs.

5

EGBE V. ALHAJI & ORS.

10

FRED EGBE



APPELLANT

V

ALHAJI ABUBAKAR ALHAJI

M.D. YUSUF



RESPONDENTS

S.A. OJOMO



15

SUIT NO. SC.189/1986.

SUPREME COURT OF NIGERIA

BELLO,



C.J.N.

OBASEKI,



J.S.C.

NNAMANI,



J.S.C.



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UWAIS,



J.S.C.

KARI BI-WHYTE,



J.S.C.

BELGORE,



J.S.C.

NNAEMEKA-AGU, J.S.C.

2nd March, 1990.

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Public Officers Protection Law - S.2 - Purport of - Public Officers Protection Law - Cause

of action - When accrued.

Public Officers Protection Law - Actions brought within the prescribed three months -

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Actions brought after three months - Distinction between - Public Officers Protection

Law - Nwankwere v. Adewunmi and Egbe v. Adefarasin - Whether conflicting.

Practice and Procedure - Issues for determination - Formulation of - How done -

Preliminary Objection - Dismissal of - Evidence not taken - Propriety of - Application

35

to dismiss suit in limine - Whether defendant is then deemed to be admitting all the

averments in Statement of Claim - Order 22 rules 1, 2, 3 and 4, High Court Rules, Lagos

State - How construed.

Interpretation and Construction - Beneficial Statutes - How construed.

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Words and Phrases - Malice - Meaning of

ISSUES:

1.

Whether a public officer who acts maliciously loses his right to rely upon the 45

protection otherwise given to him under s.2(a) of the Public Officers Protection

Law, Cap.114 of Lagos State?

2.

What object does the Public Officers Protection Law seek to achieve?

3.

How are "beneficial" statutes construed?

4.

What is the meaning of 'Malice'?

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5.

When may the issue of Malice arise in connection with s.2(a) of the public officers

protection law?

6.

When does the protection afforded by s.2(a) of the Public Officers Protection Law

avail an officer?

7.

Whether s.2(a) of the Public Officers Protection Law is a defence or a limitation?

EGBE V. ALHAJI & ORS.

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307

8.

When may the question, whether the act of the Public Officer complained of was

done in the execution of his public duty or not arise?

9.

When does an action lie against a public officer under the Public Officers

Protection Law and when does it not?

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10. How may issues for determination be formulated?

11.

When may a defendant apply to Court to dismiss an action against him

in limine

under Order 22, rule 3 of Lagos State Civil Procedure Rules?

12.

Whether a defendant who brings an application to court for the dismissal of

plaintiffs action against it

in lim:ne

is deemed to have admitted the facts pleaded

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and relied upon by the plaintiff?

FACTS:

The plaintiff sued the defendant .

3

claiming N500,000.00 being general and special

damages suffered as a result of a conspiracy by the defendants and a libellous

statement made against of the plait rtiff by the 1st and 2nd defendants in a letter dated

15

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21st March, 1978 addressed by the first (1st) and second (2nd) defendants to the

Inspector General of Police and repeated by the 3rd defendant to the Commissioner

of Police `D' Department on 22nd day of March, 1978. Before evidence was given,

the defendant brought an application to court urging it to strike out the action of the

plaintiff as it did not disclose any cause of action. The defendants, who were public

20

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officers, contended that the action of the plaintiff was barred by virtue of s.2(a) of the

Public Officers Protection Law, Caf

~

.114, Laws of Lagos State, 1973. The application

of the defendants that the action was Statute - barred having not been commenced

within three months after the alleged acts complained of were committed was

dismissed by the trial Court.

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The defendants appealed to the Court of Appeal, Lagos Division, which allowed

the defendants' appeal and held that the 3 (three) months' bar created by the Public

Officers Protection Law, Cap.114, Laws of Lagos State, 1973 extinguished the right

of the plaintiff to file his action 9 months after the acts complained of. Dis-satisfied

with the judgment of the Court of Appeal, the Plaintiff then appealed to the Supreme

30

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Court contending that the learned Justices of the Court of Appeal erred in law in

holding that admittedly malicious actions are protected under s.2 of the Public

Officers Protection Law, Cap.114.

HELD:

1 Where an officer was acting pursuant to or in execution of his official function,

35

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malice or ulterior motive cannot deprive the officer of the statutory protection

intended for him under s.2(a) of

t

he Public Officers Protection Law, Cap.114, Laws

of Lagos State, 1973. The protection intended by s.2 of the Public Officers

Protection Law was designed it favour of public officers not

qua

public officers,

but with respect to acts done in pursuance or execution or intended execution

40

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of any Law or public duty or authority or in respect of any default or neglect

thereof, and there is, therefore. no express provision that malice shall deprive

such a public officer of such a protection. In the instant case, the fact that

defendants/respondents were alleged to have acted maliciously does not deprive

them of the protection invested in them by s.2 of the Public Officers Protection

45

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Law, Cap.114 of Lagos State.

2.

The main object of the Public Officers Protection Law is to protect public officers

who have acted pursuant to the duties of their office from being harrassed with

state claims and proceedings. Thus, the Law is designed to protect an officer

who acts in good faith and does not apply to acts done in abuse of office and

50

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with no semblance of legal justification.

3.

It is a sound principle of construction that beneficial statutes which were designed

to protect a section of the public. ought to be construed in such a way as to meet

that objective. This implies that where there is a choice between a wide meaning

which carries out the legislative intent and a narrow meaning which does not, the

wide meaning ought to be chosen. In the instant case, the Public Officers

308

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NIGERIAN SUPREME COURT CASES

119901 1 N.S.C.C.

Protection Law is beneficial in intention and thus no words which would defeat

the legislative intention will be supplied.

4.

The word 'malice' is a term of art of rather imprecise import. It may mean doing

mischief to another - knowing of a person's right, and doing something with intent

to interfere with that right. In another context, it may mean doing something with 5

ill-will,

probably with hatred. It sometimes refers to the intention for doing a thing

but more often to its motive. So, it may sometimes mean doing something

intentionally.

5.

The issue of malice in connection with s.2(a) of the Public Officers Protection Law

may arise in two circumstances. A public officer might have done an act in 10

pursuance or execution or intended execution of a law or his public duty with an

ulterior motive such as helping himself or his friend or injuring the plaintiff.

Another public officer may, while a public officer and under cover of the office,

do an act contrary to, or not authorised by, Law or not in accord with his public

duty. If both acts result in an injury to a plaintiff, it may be said that both acted 15

maliciously. However, the question of malice comes for determination only after

an action is maintainable against a public officer, i.e. where the suit is commenced

within three months.

6.

For the protection contemplated by S.2 (a) of the Public Officers Protection Law

to avail an officer that officer must have, at all times material to the action, been 20

acting

Colories Officii.

In other words, if the facts show that although he was

holding a public office his act which is called in question in the action is contrary

to, or has no connection with, his duties in the public office which he holds, he

cannot take advantage of the provision of the statute.

7.

The provision of s. 2(a) of the Public Officers Protection Law is a limitation since 25

what seems to stand out so vividly are the words

'shall not lie unless commenced

within three months'.

Thus, the provision is more of limitation and is only one of

defence in the sense that a person sued after three months can rely on it to have

the suit dismissed. The mandatory provision (or words)

shall not lie

indicates

that the action cannot be maintained

unless

brought within three months.

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8.

It is only when an action can be maintained against a public officer, i.e. where

there is a cause of action, that the question of whether the act complained of was

done in the execution of a public duty can be canvassed. To give an interpretation

which allows examination of whether the action complained of was done in the

execution of a public duty without reference to whether the action was brought 35

within three months would mean that a public officer can even be sued several

years after his retirement for an act which he carries out in the execution of his

public duty. That would completely destroy the main protection which the statute

gives a public officer. In the instant case, the question as to whether the alleged

acts were done in the execution of a public duty or not cannot be entertained 40

and, indeed, does not arise since the action of the plaintiff/appellant is

incompetent.

9.

When an action is brought against a public officer within the three months period

prescribed by the Public Officers Protection Law, the action lies and is

maintainable against the defendant/public officer and he cannot rely on the 45

defence of due execution of duty or exercise of lawful authority because of the

wrongfulness of his act. But where the action is not brought within the prescribed

three months period, the action cannot lie. In the instant case, the

plaintiff/appellant's action having not been brought within the period prescribed,

the claim is incompetent and the action not maintainable.

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10.

Issues for determination in the appeal must be consistent and fall within the scope

of the grounds of appeal filed. The issues cannot be formulated to be wider than

the grounds of appeal from which they derive their existence. Indeed, the

grounds of appeal against a decision must relate to the decision and should be

a challenge to the validity of the

ratio

of that decision.