IYERE & ORS. V. DURU & ANOR.

• Pages: 1215-1230

HERE & ORS. V. DURU & ANOR.

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1215

prevented from doing. An additional award as general damages made by

the court below was set aside as being unjustified double compensation.

In

Henry Ezeani & 6 Others vs. Abraham Ejidike

(1964) 1 All N.L.R. 402, Brett

5

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J.S.C. stated at p. 405:-

"Although the measure of damages in an action in tort is not the same as in an

action in contract, but the rule against double compensation remains the same,

and applies to both".

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In the aforementioned case the plaintiff claimed in an action for conversion

the value of the goods converted and general damages. The trial Judge

awarded him both. This court set aside the award of general damages as being

double compensation."

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The point however has not been argued and I do hope that the trial Judge and

the parties will direct themselves to these and other guiding principles at the re-

hearing on the issue of damages.

In the result, I will allow the appeal and remit the case to the High Court of Ben-

del State, for the re-hearing on the assessment of damages only. The parties are

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at liberty to call evidence and address the court on any issue relating thereto.

I agree with the order for costs made by my learned brother, Karibi-Whyte,

J.S.C.

Appeal allowed.

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IYERE & ORS. V. DURU & ANOR.

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1.

VICTOR IYERE

2.

PATRICK EBOSELE

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APPELLANTS

3.

MATHEW UMOBETA

V

35 1. SIMEON DURU

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RESPONDENTS

2. MATHEW U. ALEGEH

SUIT NO. SC 170/1984

SUPREME COURT OF NIGERIA

OBASEKI,

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J.S.C.

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ESO,

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J.S.C.

NNAMANI,

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J.S.C.

UWAIS,

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J.S.C.

KAZEEM,

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J.S.C.

28th November, 1986

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Administrative Law - Judicial Act and Ministerial Act - Distinction between both

- Obedience to superior order - Unlawful superior order - Effect thereof

Constitutional Law - Right to Liberty - Unlawful detention - Onus of proof

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Detention of citizens - Need for strict compliance with procedural law by the

Police.

Criminal Procedure - Remand in custody - When ordered - S.236(1) Criminal

Procedure Law.

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NIGERIAN SUPREME COURT CASES

[1986] 2 N.S.C.C.

Evidence - Onus of Proof - Unlawful detention - Admission of detention by

defendant - Onus of proof of lawfulness - Judicial Acts - Protection of -

S.57(1) and (2) Magistrates' Court Law, Bendel Stale - When applicable -

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Justice of the Peace - Power to remand citizen in custody - When exercisable

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- Whether judicial or ministerial act - Police - Detention of citizens - Need

for compliance with the law - Detention pursuance to remand warrant -

Warrant issued by Justice of the Peace signing warrant al home - Warrant

issued without criminal proceedings pending - Effect thereof - S.236(1) Criminal

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Procedure Law and S.57(1) and (2) Magistrates' Court Law of Bendel State.

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ISSUES:

1.

Whether a remand warrant can be validly issued on Form 12 under s.236(1) of

the Criminal Procedure Law of Bendel State when no criminal proceedings

were pending against the detainee.

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2.

Where a Justice of the Peace issues such remand warrants as in (1) above in

his private room, can he be said to have been acting judicially when so doing.

3.

Whether the remand warrants issued in this case were such "Lawful warrants"

contemplated by s.57(2) of the Magistrates' Court Law as being "within the

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jurisdiction of the person issuing them" when a Magistrate can only issue such

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warrants in the course of actual and not contemplated proceedings.

4.

Where a remand warrant is issued in breach of s.236(1) of the Criminal

Procedure Law, in that no criminal proceedings were pending before it was

issued against a detainee, can the police officers who executed the warrant

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claim protection under s.57(2) of the Magistrates' Courts Law in an action for

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unlawful imprisonment brought against them by the detainee.

FACTS:

The appellants were arrested on a Friday by the respondents (Police Officers)

for allegedly committing assault and obstructing a public highway and they were

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taken to the Ubiaja (Bendel State) Police Station. After the arrest the respondents

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got a Justice of the Peace to issue remand warrants (Exhibits D, E & F), which were

issued at the house of the Justice of the Peace about 1.45 p.m. The trial Judge

found as a fact that before the warrants were signed no opportunity for bail was

at that time or thereafter offered to the appellants in accordance with s.17 of the

Criminal Procedure Law of Bendel State.

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In issuing the warrants, the Justice used Form 12 in Schedule 1 of the Criminal

Procedure Law and the warrants were purported to have been issued in the Magis-

trate's Court of Ubiaja. Pursuant to the remand warrants, the appellants were de-

tained by the respondents from Friday till 8 a.m on the following Monday even

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though no criminal proceedings had then been instituted against them. By virtue

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of S.236(1) of the C.P.L., if during any criminal proceedings before a Court it

becomes necessary necessary to adjourn the hearing, the court may, if the Ac-

cused is in custody remand him to prison or other suitable place of security - Form

12 is then used for this purpose.

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Upon their release, the appellants sued the respondents for damages for un-

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lawful imprisonment. The trial Judge gave judgment for the appellants on the

grounds that the remand warrants were unlawful and void and that consequently

the respondents were not protected by S. 57(2) of the Magistrates' Court Law,

whereupon the respondents appealed to the Court of Appeal. The Court of Ap-

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peal held that the Justice of the Peace was acting judicially when signing the re-

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mand warrants and therefore S. 57(1) of the Magistrates' Court Law protected the

Respondents. The appellants appealed against this decision to the Supreme

Court.