Godwin. Nwankwere V Joseph Adewunmi (1966)

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BRETT, J.S.C.

The respondent sued the appellant in the Magistrate’s Court, Ife, claiming

“the sum of £410 as damages being loss of earnings suffered by the plaintiff on account of the wilful refusal by the defendant to issue a certificate of roadworthiness in respect of plaintiffs motor vehicle No. LA 8484 after having duly tested and passed it as being roadworthy at Ife on the 8th of February, 1961, thereby preventing the said vehicle from operating on the road from the 8th of February to the 2nd May, 1961.”

He was awarded £300 damages in the magistrate’s court, and the defendant’s appeal to the High Court was dismissed. The defendant has now appealed to this Court.

At the material time the defendant was a Vehicle Inspection Officer in the Nigeria Police stationed at Ife, and it is common ground that on the 28th January, 1961, he directed the driver of the plaintiffs lorry No. LA 8484 that the lorry was to be taken off the road until it had been inspected and passed as roadworthy, and impounded the certificate of roadworthiness.

He was authorised to give the direction under regulation 70 of the Road Traffic Regulations of Western Nigeria, but our attention has not been drawn to any regulation authorising him to impound the certificate or stating in what circumstances he was entitled or required to return it, once impounded. At all events it is also common ground that he inspected the vehicle and that after certain repairs required by him had been carried out he declared it once again roadworthy.

As to what took place after that there was a conflict of evidence. The plaintiff said that he had already paid a bribe of £10 to avoid being prosecuted for putting the vehicle on the road in an unfit condition and that after the defendant had demanded a further £25 before he would inspect it they agreed on a payment of £15 and he paid £10 towards this. When he asked to be allowed to defer paying the final £5 until the vehicle was back on the road and earning him a profit the defendant refused either to return the certificate of roadworthiness or to issue a fresh one.

After some time he complained to the defendant’s superiors and his vehicle was finally inspected and passed as roadworthy at Ibadan on the 2nd May. The plaintiff s driver confirmed his story as regards the first payment of £ 10 and as regards the fact that the vehicle was off the road until the 2nd May. The defendant denied this story altogether and said that he had returned the impounded certificate after inspecting the vehicle. The only difference of opinion he mentioned was that the plaintiff asked for a fresh certificate of roadworthiness, which would be valid for six months from the 8th February, and that he refused to give him one; this part of his story was expressly rejected by the magistrate.

In arguing the appeal Mr O. Ayoola submitted (1) that the magistrate failed to direct himself properly about the standard of proof required; (2) that the special damages were not proved; and (3) that the Public Officers Protection Law applies, since the proceedings were not instituted within three months after the cause of action arose. We shall consider these submissions in that order.

As regards the standard of proof, Mr Ayoola submitted that it is governed by section 137 (1) of the Evidence Act, which reads-

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt”,

and pointed out that the magistrate does not specifically refer to this requirement in his judgment. In the High Court, Duffus, J., held that since “the plaintiffs case depends on the fact that the defendant made this illegal demand which would amount to a crime” the subsection applied, but after referring to Bello v. Police (1956) 1 F.S.C. 48 he held further (that] if there was no substantive misdirection it could be assumed that a professionally qualified magistrate knew the law applicable to the case and directed himself correctly. In Bello’s case the court was concerned with what it called the “elementary principle” of the burden of proof in a criminal case.

The standard of proof required by section 137 (1) of the Evidence Act in cases to which it applies is not equally elementary and we do not think that it can safely be assumed that the magistrate regarded it as having been satisfied unless this appears from the actual words of his judgment. In the present case this does so appear. In one passage of his judgment the magistrate said “I do not entertain any doubt as to the truth of the plaintiffs story,” and later “I am perfectly satisfied” that the plaintiffs story is true. He described the defendant’s story as “absolutely incredible” in one respect, and said that he rejected it in others. Thus even if section 137 (1) of the Evidence Act applies it was complied with.

The question whether the subsection does apply was fully argued before us and since Duffus, J., held that it did we think it desirable that we should give a ruling. In the one reported case in which the applicability of the subsection has been considered by this Court, Ikoku v. Oli [1962] l All N.L.R. 196, the members of the Court were divided in their opinions, but the nature of the present claim is quite different from that of the claim in Ikoku v. Oli and the judgments in that case were concerned with a question which does not arise here. The subsection applies where “the commission of a crime by a party to any proceedings is directly in issue.”

The Act gives a number of words and phrases a special and precise meaning and in construing any particular provision of the Act it is essential to give effect to that meaning. Section 2 contains a definition of “fact in issue” which is far from including every allegation which might properly be made or denied in a pleading. The definition reads-

“fact in issue” includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows.

Fact “directly in issue” is not defined. Section 6 declares that evidence may be given of facts in issue and of “such other facts as are hereinafter declared to be relevant.” Section 9 (1) states that “any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact,” which indicates that facts showing motive are not in the ordinary case to be included among the facts in issue but among the other facts declared to be relevant. In our view that is the way to regard the evidence of bribery in this case. The evidence that the defendant refused to return the certificate in order to bring pressure on the plaintiff to pay him the final £5 showed a motive for his act, but as the plaintiff could have succeeded in his claim without proving any motive it cannot be said that the alleged motive was a fact in issue or directly in issue.

Mr Ayoola submitted that the defendant had a duty under regulation31 (2) of the Road Traffic Regulations to give a certificate, and that that fact brought the question whether he had committed an offence under section 136 of the Criminal Code of Western Nigeria directly in issue, but the regulation is not concerned with the return of an impounded certificate and section 136 of the Code applies only to a duty directly imposed by some piece of legislation

As regards the amount of damages awarded, the plaintiff claimed a loss of profit at £5 per day for 82 days, and his evidence was not challenged in cross-examination. The magistrate felt that there should be some deduction for Sundays and Public Holidays and decided to “exercise his discretion in reducing the damages to £300.” The cases which decide that special damages must be strictly proved do not appear to us to be in point at this stage. There was evidence to justify an award of not less than £300 and if the defendant wished to challenge it the time to do so was at the trial.

The Public Officers Protection Law was not mentioned before the magistrate, but was raised on the appeal to the High Court. Duffus, J., quoted from the judgment of Scrutton, L.J., in Scammell & Nephew Ltd. v. Hurley [1929] 1 K.B. 419, where he said [at p. 427] that

“To require the application of the Public Authorities Protection Act, the acts must be acts not authorised by any statute or legal justification, but acts intended to be done in pursuance or execution of some statute or legal power.”

We agree with Duffus, J., in regarding that passage as applying equally to the Public Officers Protection Law. The Law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification; if the plaintiffs story was true the defendant did not purport to be acting in the execution of any public duty. This ground of appeal also fails.

In addressing this Court for the respondent Mr Fatoki described the action as being brought in detinue for the detention of the impounded certificate. and in his reply Mr Ayoola submitted that the use of the word “issue” in the claim restricted its application to the refusal to grant a new certificate. There were no written pleadings, and the plaintiffs evidence showed that the substance of his complaint was that the vehicle was kept off the road for want of a certificate, old or new, and that he would have been content with either. At worst the claim was ambiguous, and it could have been amended without prejudice to the defendant if more precision was required. According to the notes of counsel’s argument for the appellant in the High Court he himself twice called the case an action in detinue and we regard it as clear that that is the basis on which it was contested throughout.

Even if the point were a good one it would merely be a ground for ordering a retrial, with leave to amend, and it is not the practice of this Court to order a retrial of a case originating in a magistrate’s court on technical points of this kind.

The appeal is dismissed with costs assessed at 30 guineas.

Other Citation: (1966) LCN/1328(SC)