J.O. Ayinde & Ors. V. Samuel A. Adigun (1993)

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OLATAWURA, JSC.

The nub of this appeal is whether the plaintiff’s action is statute barred. The plaintiff was up till the time of his accident a civil servant in the Federal Civil Service of Nigeria and was on a official duty when the vehicle, a Range Rover, belonging to the Federal Government of Nigeria and registered as FGN.5020 was involved in an accident which resulted in severe injuries sustained by the plaintiff.

At the time of the accident the 1st defendant who was also an employee of the Federal Government of Nigeria and employed by the 3rd defendant was the driver of the said vehicle. It was not denied that both the plaintiff and the 1st defendant were on official assignment to Monai near Bussa to commission the Monai Fishing Pond which belongs to the Federal Government when the accident occurred. The plaintiff attributed the cause of the accident to the negligence of the 1st defendant.

The particulars of negligence pleaded are not necessary for the just determination of the appeal. The negligence was denied by the defendants in their joint defence and they raised two main defences; that the Federal Government or any of its departments cannot be sued in tort and that the action is statute barred in that it was not brought within 3 months of the cause of action as the 1st defendant was a public officer.

The preliminary objection was taken in limine by the learned trial Judge because if successfully raised would dispose of the action. The learned trial Judge in a well considered ruling dismissed the action on the ground that the action was statute barred. The plaintiff was not satisfied with that ruling, he appealed to the Court of Appeal, Kaduna Division in a unanimous decision; Wali, Maidama and Ogundere, J.J.C.A-, the Court dismissed the appeal on 11/12/86. The plaintiff has now appealed to this court. Briefs were filed by both parties but suffice it to say that the appellant’s brief offends against all the rules and authorities on the filing of briefs. However I will refer to the issues raised by the appellant, namely:

“(i) Whether or not the doctrine of state immunity applied after promulgation of 1963 Constitution.

(ii) Whether or not the trial court would validly dismiss the plaintiff’s case without taking of evidence when the plaintiff in his pleading claimed that the injury/damage was continuous and

(iii) Whether or not the public officers protection law applied to the case when the plaintiff and the 1st defendant were public officers.”

The defendants while agreeing with the issues raised by the plaintiff summarised the issues in an elegant manner into two:

“(i) Whether the procedure adopted by the High Court and upheld by the Court of Appeal, in dealing with the preliminary objections was right,

(ii) Whether the interpretation and application of the law by the High Court upheld by the Court of Appeal, is right with respect to –

(a) Public Officers Protection Law Section 2(a) Cap, 111, Laws of Niger State. (See Ruling of H/ct; reproduced) and

(b) The Common Law Doctrine of State Immunity.”

I will prefer the issues raised by the defendants as they cover the issues arising from the pleadings.

It was agreed that both the plaintiff and the 1st defendant were, at the time the cause of action arose, public officers. This was clearly brought out in the pleadings. See paragraphs 1, 2 and 4 of the Statement of Claim and paragraph 10 of the Statement of Defence.

The plaintiff has contended that time did not start to run from the date the cause of action arose in view of the nature of the injuries sustained by the plaintiff “since there was no cessation of damage and/or injury” and relied on Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1; (1988) 6 SCNJ. 18/30-31 or (1988) 1 N.S.C.C. 1005 for this submission. In other words the plaintiff on this issue is not denying that the Public Officers Protection Law applies. Since it is the contention of the plaintiff that the law does not apply, I will reproduce the relevant section 2(a) Cap. 111 Laws of Niger State which provides:

“Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provisions shall have effect:

(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within three months next after the ceasing thereof.”

I will say straight away that the case of Adimora v. Ajufo (supra) relied upon by the plaintiff is not applicable to this case. It will be helpful to state the facts in ADIMORA’S case if only to show that reliance placed on it by the plaintiff shows a misconception of the issues raised in that case. The plaintiff in that case bought about 11 plots of land from the defendants through the 2nd defendants who represented the defendants’ family. Receipts were issued by the 2nd defendant. This contract was before the Nigerian Civil War. The defendants’ family had a dispute with a different party in respect of the same parcel of land out of which the 11 plots formed a part. The defendants succeeded in their action and thereafter the plaintiff asked for a conveyance of the 11 plots to him.

After the civil war the plots of land attracted a higher price. The plaintiff then sued for specific performance or the value of the plots at the current market value. At a later stage the plaintiff was called to the family meeting and it was at that meeting that the defendants’ family refused to convey the plots the plaintiff purchased to him The issue was, when did the cause of action accrue because the plaintiff filed his action 3 months and 3 days after the defendant refused to convey the 11 plots he bought before the civil war to him It was held that the cause of action accrued when the plaintiff could prosecute the action effectively, that is, after the defendants’ refusal to convey. That is not the position in this appeal.

The accident took place on 10th February, 1978 and the plaintiff in this case did not issue a writ until January 1981 which was almost 3 years as against the 3 months under the Public Officers Protection Law. This is clearly against the law meant for the protection of public officers and the action is therefore statute barred: Obiefuna v. Okoye (1964) 1 ANLR 96; (1964) N.S.C.C. 52; Egbe v. Adefarasin (1985) 1 NWLR (pt. 3) 549: Ogunsan v. Iwuagwu (1968) 2 All NLR 124; John Ekeogu v. Elizabeth Aliri (1991) 3 NWLR (pt.179) 258.

I now come to the State Immunity under the Common Law Doctrine. It has its historical origin in the Common Law of England that “the king can do no wrong”. In the case of Ransome-Kuti v. Attorney-General & Commissioner/or Justice & Ors (1985) 2 NWLR (Pt.6) 211; (1985) 2 NSCC 879, this principle was examined, explained and this court held that since the case of the plaintiff was founded on that and that as at the time the cause of action arose in 1977 the State cannot be liable for the tortious acts of its servants and agents. Having held earlier in this judgment that the cause of action in this case arose on 10th February, 1978, it appears to me that learned counsel for the appellant did not appreciate fully the ratio decidendi in Ransome-Kuti’s case. Learned counsel’s reliance on the Republican Status of the country brought about by the 1963 Constitution appears to me he was in fundamental error of the meaning of a State. A state has been defined as “the organised community, the central political authority”. Dicey’s Conflict of Laws 7th Edition defines State: The word “State” has various senses. It is often used as meaning a political society, governed by one and the same sovereign power”. This definition is in contrast with the meaning of a country which is “the entire territory under one sovereign power”. What is enforced is the authority of the country as laid down in the laws of the country. I do not see where under the provisions of the 1963 Constitution that the State is liable in tort. What the appellant seeks to achieve is what the Public Officers Protection Law prohibits. Since the cause of action occurred before the 1979 Constitution: the Limitation imposed by the Public Officers Protection Law still applies. I will refuse to be drawn into an issue not before us, i.e. the provision of section 6(6)(b) and 236 of the 1979 Constitution. As the facts of this appeal before use are concerned, it will be an hypothetical question.

An action must be predicated on law and not on sentiments. The court can only act in accordance with the law and procedure thereunder since the court can only do what the law permits. Sentiment has no specific boundaries whereas the law applicable to any cause of action must be specific and certain. It is my firm view that the State is not liable in tort and the plaintiff is caught by the doctrine of State Immunity.

Although I have adopted the issues raised by the respondents in view of the fact that they are concise and relate directly to the matter before the Court, but since there is no appeal against the procedure followed and approved by the Court of Appeal, it is in my view irrelevant to consider that issue not covered by the ground of appeal. I will therefore not bother to question what by implication the appellant has accepted to be true. Any part of the decision not question by way of appeal should not be a matter to be raise by the respondent more so where there has been no cross-appeal.

In the final analysis, this appeal has no merit and is dismissed.

I now come to an issue which should not escape our attention in view of the pleading by the defendants and the facts pleaded in the Statement of Claim and which facts were admitted. Paragraph 11 of the Joint Statement of Defence reads:

“11. The plaintiff is not entitled to his claim as the computation of damages in the case of injuries by civil servant in the course of their duty is regulated to be awarded.”

I take this pleading to mean that there is a provision whereby civil servants involved in accidents which led to injuries are paid some damages. The plaintiff was brought to court on a wheel chair. If the matter has gone to trial, I am sure paragraph 2 of the Statement of Defence which avers that the defendants” are not in a position to admit or deny” the paragraphs dealing with the nature of injuries, the hospital where he was treated would have been disallowed as it was not a proper traverse. The defendants admitted paragraphs 1, 2, 3, 4 which read thus:

“1. The plaintiff is a servant in the public service of the Federal Government of Nigeria.

2. The plaintiff was a passenger in the Federal Government of Nigeria Range Rover FGN 5020 driven by the first defendant as the servant and/or agent of the second and third defendants on 10/2/78 which had an accident at the vicinity of Mokwa.
3. The plaintiff and other officers in the said vehicle were on the way to Monai near New Bussa to commission the Federal Government Monai Fishing Pond.
4. The plaintiff and the first defendant were servants and/or agents of the Federal Government of Nigeria under the general control of the third defendant and were serving in the second defendant’s Ministry.”

This unfortunate incident occurred when the appellant was on duty. The joy of service is the benefit due to dutiful and loyal public servants after retirement. If his service is cut short through no fault of his as in this case, he should not be cast away in his hour of need. As at the time of the accident he was just 33 years of age. He is now unable to fend for himself, his wife and children. These are his dependants. To leave him, without any compensation based on the usual computation will demoralise public servants. His services to the nation has been cut short by an event over which he had no control. He carries a scar, a deformity and all other disadvantages for the rest of his life.

He should not be cast away like a rag no longer useful for even a dirty job. He might have been wrongly advised, but the public service had up till that unfortunate day served should be magnanimous not to deny him any entitlement due to him. He deserves pity and compassion.

I will therefore order that a copy of this judgment be sent to the 3rd defendant to consider what is due to the plaintiff whose services were terminated by the accident suffered in the course of duty.

In view of the peculiar facts of this case and the unfortunate present position of the appellant, I will make no order as to costs.

Other Citation: (1993) LCN/2495(SC)