A. Ibegbu V. Lagos City Council Caretaker Committee & Anor. (1974)
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A. G. IRIKEFE, J.S.C.
The issue raised by this appeal fits within a narrow compass. The appellant herein instituted before the Lagos High Court, an action worded thus:-“The plaintiff’s claim against the defendants jointly and severally is for the sum of Five Thousand Pounds (N35,000) being special and general damages suffered by the plaintiff when on the 6th day of October, 1969, the 2nd defendant as servant and driver of the 1st defendants drove a bus No. LG 2105 belonging to the 1st defendants in such a very negligent manner that the said bus collided with the plaintiff’s HONDA MOTORCYCLE No. LO 9407 and damaged it beyond repairs. The plaintiff was seriously injured as a result of the collision.”
For the purpose of this appeal the material averments are to be found in paragraphs 1, 2, 3, 4 and 5 of the Statement of Claim. These read as follows:-
(1) The plaintiff was at all times material to this action an Insurance Clerk Employed by Law Union and Rock Insurance Company Nigeria Limited and the owner of motorcycle No. LO 9407.
(2) The 1st defendant is a City Corporation carrying on Municipal Transport Services within Lagos State and the owner of the commercial vehicle No. LO 2105.
(3) At all material times the 2nd defendant, Raufu Adetona was a servant or agent of the 1st defendant and drove with the 1st defendant’s authority for the purpose of the 1st defendant’s business the said vehicle No. LG 2105.
(4) On the 6th day of October, 1969, the said Raufu Adetona in the course of his employment drove along Denton Street Ebute-Metta the 1st defendant’s vehicle No. LG 2105 so negligently unskillfully and without proper control that it collided with the plaintiff’s motor cycle registration No. LO 9407
(5) By the said accident the plaintiff was seriously injured and was incapacitated from attending to his work for a period of 8 months.
The defence, while admitting the matters raised in paragraphs 2 and 3 of the Statement of Claim in paragraph 2 of their Statement of Defence, proceeded in paragraph 10 to raise a statutory defence framed thus:-
“The defendants will contend at the trial that the action is statute-barred under the Public Officers Protection Act; Section 2(a) Cap, 168 of the Laws of the Federation of Nigeria.
Particulars of Special Defence
(a) The plaintiff’s right of action accrued on the 6th October, 1969.
(b) The plaintiff did not commence action until 2nd April, 1970.”
At the hearing before the High Court, counsel representing the respondents took an objection in limine and argued that the claim was statute-barred. The learned trial Judge after hearing counsel for the parties, reserved his ruling. In his ruling delivered on 26th November, 1971, George, J., upheld the respondent’s contention and struck out the claim with costs. This appeal is against the said ruling.
Learned counsel for the appellant, Mr. J. O. Coker relied on only one ground of appeal which reads thus:-
“The learned trial Judge erred in law in holding that the defendants were entitled to protection under Section 2(a) of the Public Officers Protection Act Cap. 168 of the Laws of the Federation of Nigeria.”
Mr. Coker’s submissions before us may be summarised under three heads as follows:-
(a) That the Public Officers Protection Act – Cap. 168 Laws of the Federation of Nigeria on which the ruling is based, if it applies at all, offers protection to persons when acting in the execution of public duties.
(b) That the learned Judge was in error to rule that the action was statute-barred without spelling out which among the defendants qualified for the protection afforded under Section 2(a) of the Public Officers Protection Act, Cap. 168 of the Laws of the Federation of Nigeria.
(c) That by virtue of the Interpretation Act of 1964, “a public officer” as therein defined does not and cannot include an employee of the Lagos City Council.
For the respondents, Mrs. Ibironke argued that the order made by the learned Judge was a proper order in the circumstances of this case, and drew our attention to Section 8 of the Limitations Decree (No. 88 of 1966) which prescribes a period of 3 years within which to bring an action sounding in negligence.
In as much as the ruling, the subject of this appeal is apparently based on the provisions of the Public Officers Protection Act, Cap. 168 – Laws of the Federation of Nigeria – 1958, we are of the view that the learned Judge was in error. This is so because in the Lagos State, the above federal statute is no longer in force; having been replaced by the Public Officers Protection Law – Cap. 106 Laws of Western Nigeria – 1959 by virtue of the Lagos State (Applicable Laws) Edict No. 2 of 1968 which came into force on 1st May, 1968.
It is also our view that, as the respondents were sued jointly and severally, the statutory defence pleaded at paragraph 10 of the Statement of Defence does not sufficiently set out, as it should, the party on whose behalf it is being raised. The need for such precision becomes apparent when it is realised that the 1st respondent, the Lagos City Council Caretaker Committee, derives its corporate existence from the Lagos Local Government Act – Cap 93 – Laws of the Federation of Nigeria – 1958 as amended by Ordinance No. 18 of 1959.
In this regard, the 1st respondent is a separate and distinct entity from its employees such as the 2nd respondent. See Town Clerk, L.T.C. v. Clement – (1963) 1 All Nigeria Law Reports p. 166 and Ajayi v. L.T.C. (1969) – 1 All Nigeria Law Reports p. 367.
For the above reasons, we think that a case for the application of the statute was not made out and that the learned Judge was in error in ruling that this action is statute-barred. In the result, the appeal succeeds and it is allowed. The order made in the ruling delivered in this matter by George, J., on 26 November, 1971 is hereby set aside. The respondents are to pay the appellant costs assessed at N103.
Other Citation: (1974) LCN/1944(SC)
