John Ekeogu Vs Elizabeth Aliri (1991)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C.

In her writ of summons filed on 20th day of July, 1987, the plaintiff, a minor, instituted this action by her next friend, the mother, claiming against the 1st, 2nd and 3rd defendants, jointly and severally:

“the sum of N100,000 (one hundred thousand naira) being special and general damages for assault and battery and negligence in that on the 2nd day of December, 1985, the first defendant who is a servant of, and under the control and employ of the 2nd and 3rd defendants, as a Teacher at the Community Primary School, Ohekelem, Ngor Okpala mercilessly flogged the plaintiff a minor and pupil of Community Primary School, Ohekelem, Ngor Okpala within jurisdiction which resulted in the loss of her left eye.”

The facts which gave rise to the claim are stated in paragraphs 1, 2, 5, 6, 7 and 8 in the plaintiff’s Statement of Claim as follows:-

“STATEMENT OF CLAIM

1. The plaintiff, who brings and prosecutes this action by her next friend BENADETH ALIRI, is a native of and resident at Umudim Ohelekem Ngor Okpala, Owerri within the jurisdiction of this court. As at the day of the incident giving rise to this suit, the plaintiff was a Primary five pupil of Community Primary School, Ohekelem. She was then aged eleven (11) years.
2. The 1st Defendant was at the date of the incident subject-matter of this suit, a teacher at the said Community Primary School, Ohekelem. The 1st Defendant is a teacher under the employment, discipline and control of the second and third defendants at all times and on all dates material to this suit and was deployed by the 2nd and 3rd Defendants as a teacher in the said Community Primary School, Ohekelem.
3. …………………………..

4 ……………………………

5. On or about the 2nd day of December, 1985, the plaintiff as a pupil of the said Community Primary School Ohekelem, a school under the control and management of the 2nd and 3rd defendants, reported for classes. She was a pupil in class 5 of the said school. Her class teacher was the 1st defendant who was employed by the 2nd and 3rd defendants and deployed to the said school and was in the employment of the said 2nd and 3rd defendants on the said date.
6. On the said date, there was an incident of theft in a nearby Palm Produce depot. The thief was caught and was being beaten up by irate members of the public who gathered as soon as he was caught. The 1st defendant instructed his class pupils, including the plaintiff to go and see how thieves are treated so as to learn a lesson therefrom. The plaintiff together with other pupils in the class obliged and went to the said depot.
7. Soon after the bell rang for resumption of classes and all the pupils, including the plaintiff began to run back towards the class. Suddenly, the 1st defendant picked a cane and began to flog the pupils as they ran into the classroom.
8. As the plaintiff attempted to run into the classroom the 1st defendant aimed at her face and discharged his cane right across the face of the plaintiff. The cane landed on the plaintiff’s left eye

and the plaintiff cried out in pain and anguish. The plaintiff lost balance and collapsed on the floor. The 1st defendant ignored the cries of the plaintiff and continued to flog the other pupils.

On the 12th day of April, 1988, the 1st Defendant filed a motion on Notice under Order 29 Rules 1 and 2 of the High Court Rules of Eastern Nigeria then applicable to Imo State, praying the court to dismiss the plaintiff’s claim on the grounds:

“That the action instituted by the plaintiff/respondent against the first Defendant/Applicant is a nullity as it is statutorily time-barred under Section 2 of the Public Officers Protection Law, Cap.106, Laws of Eastern Nigeria, 1963 as applicable to Imo State.”

That motion was .supported by an affidavit sworn to by the 1st defendant. The relevant paragraphs of the affidavit stated as follows:-

“5. That the cause of action against me by the plaintiff/respondent arose from an incident which took place on or about the 2nd day of December, 1985.

6. That I was at the material time a second master teaching at Ohekelem Primary School, Ngor-Okpala, Owerri.
7. That my action which was the cause of the injury to plaintiff/respondent was done in the performance of my duty as a teacher, and during school hours.
8. That the injury which the plaintiff/respondent complained of in her statement of claim, continued after the incident, but stopped and ceased 5 months thereafter.
9. That more than 3 months had expired since the injury to the plaintiff/respondent stopped.
10. That the plaintiff/respondent’s action against me was not brought within 3 months of the incident complained of as required by law.”

On the 16th day of November, 1988, the learned trial Judge (Ogu-Ugoagwu, J.) delivered his ruling dismissing the application. In his ruling he held that on the facts before him, the 1st defendant was at the material time a public servant, as defined under S.277 and the 5th Schedule to the 1979 Constitution. He also held that since the act complained of occurred on the 2nd day of December, 1985 and the suit was commenced on 20th July, 1987- “nineteen months and eighteen days after the occurrence. This action, therefore, was not commenced within the period stipulated in S.2 of the Public Officers Protection Law (supra). The cause of the action accrued to the respondent on 2nd December, 1985,when the applicant hit her left eye by flogging her with a cane, as pleaded in paragraphs 5 and 8 of the Statement of Claim.”

On the issue of whether the 1st defendant was, at the material time acting in pursuance of his duty, the Judge stated as follows:-

“Was the applicant acting in the execution of his duty as a teacher when he sent the respondent and co-pupils in his class to watch the beating of a thief by irate public who had taken the law into their own hand

Was there any lesson for the respondent and other pupils to learn from the mob action of beating a thief If yes, was the lesson beneficial or detrimental to the fledglings including the respondent who then was eleven years old Before proceeding further I am of the considered opinion, in answer to the first question, that the applicant acted outside his official duty as a teacher when he sent the respondent and other pupils out from his class to go on their own outside the school compound to watch the commission of assault on a thief at a palm produce depot. To the second question my answer is that there was a lesson to learn but that lesson was that the pupils could take the law into their own hands without recourse to appropriate authority. Such a lesson was detrimental to the moral upbringing of the fledgling.”

For the reasons given I am satisfied that the applicant’s act in causing permanent injury to the left eye of the respondent is a felonious act and so the applicant, though a public officer, cannot take cover under the Public Officers Protection Law, Cap.106. Pursuant to Order 29 rule 3, I hereby order the applicant, John Ekeogu to file his statement of defence to this action within twenty-one (21) days from this ruling.”

The first defendant, (now applicant) being dissatisfied with the ruling of the High Court appealed to the Court of Appeal, Port Harcourt Judicial Division.

The Court of Appeal, after hearing argument from counsel, dismissed the appellant’s appeal, holding that the act complained of was not done by the appellant in the execution of a public duty, Kolawole, J.C.A., who read the lead judgment put it as follows:-

“If the averments contained in paragraphs 6, 7 and 8 of the Statement of Claim are admitted by the appellant, the action of the appellant is beastly and without jurisdiction. What wrong did the respondent commit to necessitate such a brutal action on the part of the appellant which caused the loss of the left eye of an eleven year old pupil If, as a result of the flogging of the respondent,death were to result, could it be said that the appellant was acting in pursuance of public duty I do not think so. Could the appellant take cover under Section 2(a) of the Public Officers Protection Law That will defeat the purpose of the legislation. The Public Officers Protection Law is not a licence for the commission of criminal acts under which a public officer will then

seek sanctuary without answering the very grave allegations levelled against him which he is assumed to have admitted as true at the stage of the demurrer. In my view the appellant must offer an answer as to why he did what he was alleged to have done, an act which patently he did not do in pursuance of any official duty.”

Aggrieved by the decision of the Court of Appeal, the appellant has further appealed to this court on only one ground of appeal. That ground reads:-

Error of Law

The learned Justices of the Court of Appeal erred in law when they denied the appellant protection under the Public Officers Protection Act even though the suit was filed more than three months after the incident complained about, and it was not disputed that the appellant was on official duty at the material time.

Particular of Error

(a) The incident was said to have happened on the 2nd day of December, 1985, while the suit was filed on 30/10/87;

(b) Paragraphs 5, 6, 7 and 8 of the statement of claim under consideration and the inclusion of the 2nd and 3rd defendants showed conclusively that the appellant was on duty at the time the incident happened;

(c) The allegation contained in paragraph 8 of the statement of claim would have constituted a strong prima facie case against the appellant if the suit had been brought within time but was wrongly viewed by the Court of Appeal as having the effect of excluding the Public Officers Protection Act.”

In his brief of argument, appellant’s counsel formulated the issue for determination as follows:-

“Was the appellant engaged in official duty at the time he injured the respondent

If the answer is yes, can the nature of the respondent’s injury operate to deny the appellant protection under Section 2(a) of the Public Officers’ Protection Law”

In his own brief the counsel to the respondent formulated issue for determination as follows:-

“Is the appellant protected by Section 2 of the Public Officers Protection Law, Cap. 106, Laws of Eastern Nigeria, 1963 as applicable to Imo State having regard to his conduct/action”

In my view the only issue to be determined in this appeal is whether the action was, in the circumstances, maintainable in law.

I think I should state right away that it was common ground that the appellant was at the material time, a Public Officer, as defined under S.277 and 5th Schedule of the 1979 Constitution. There is also no dispute that the respondent’s action was instituted more than three months after the happening of the act complained of. The only issue to be resolved is whether the two lower courts were right in their conclusion that the act complained of cannot be said to have been performed by the appellant in the execution of his public duty so as to enable him enjoy the protection of the provisions of the Public Officers Protection Law.

Now section 2(a) of the Public Officers Protection Law, Cap. 106 of the Law, of Eastern Nigeria, 1963 as relevant, reads as follows:-

“2. 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…..”

In my view, the words used in this legislation are plain and unambiguous and should be given their ordinary and natural meaning. A careful reading of the section shows that its provision apply to an action brought against a public officer for any act done either-

(i) in pursuance or intended execution of any Law or public duty or authority, or

(ii) in respect of any alleged neglect or default in the execution of Law, duty or authority.The action must be instituted against the public officer before the expiration of the period of three months from the date of the commission of the act complained of. If the action is brought after the three months’ period, it will be unmaintainable – Obiefuna v. Okaye (1961) All NLR 357

As stated earlier, on the facts before the courts below, both courts had no difficulty in finding that at the material time, the appellant was a public servant and that the action against him was brought outside the period of three months. But they also held that the appellant was not entitled to the protection of the Law because according to the Court of Appeal as per Owolabi, J.C.A. –

“the appellant’s act in causing permanent injury to the left eye of the respondent is a felonious act and so the appellant, though a public officer, cannot take cover under the Public Officers’ Protection Law, Cap. 106”

Was the learned justice of Appeal right in coming to such a conclusion

It was the submission of learned counsel for the appellant that on the facts before the court, the court was in error in coming to the conclusion that at the time of the incident the appellant was not acting in execution of his public duty. In this regard, learned counsel referred us to paragraph 2 of the respondent’s Statement of Claim which says:-

“The 1st defendant was at the date of the incident subject matter of this suit, a teacher at the said Community Primary School Ohekelem. The 1st defendant is a teacher under the employment, discipline and control of the second and third defendants at all times and on all dates material to this suit and was deployed by the 2nd and 3rd defendants as a teacher in the said Community Primary School, Ohekelem.”

In his own submission on whether the appellant was acting in pursuance of his official duty when the incident happened, the learned counsel for the respondent at p.6 of his brief stated as follows:

“… it is humbly submitted is not the nature of the respondent’s injury but the conduct or action of the appellant. The appellant did not act COLORES OFFICII. His conduct/action was not reasonably connected with the lawful exercise of his authority.”

Now, I have no doubt in my mind that on the facts of this case, both the trial court and the Court of Appeal were in error when they concluded that the conduct of the appellant was such that he should not be allowed the protection of section 2 of the Public Officers Protection Law. It is clear, on the facts, that at all material times the appellant was acting in pursuance of his public duty as a teacher exercising disciplinary control over his pupils. The fact that there was or might be some default or negligence on his part in the performance of his duty should not be the basis for depriving him of the protection under the section. After all what was in issue at that stage of the proceeding was not the liability of the appellant but whether the action was maintainable or not. It is only after the action has been instituted that the appellant’s conduct can be probed. In Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549 at p.569, this court, as per Karibi-Whyte, J.S.C. put the matter as follows:-

“Again where the defendant has raised an unanswerable plea of protection under the Public Officers Law on the uncontested facts as 2nd respondent has done in this case, there is absolutely no basis for prying into the conduct of such a defendant which gave rise to the action. The Court of Appeal need not have gone into the question of whether malice was a relevant consideration in determining the liability of the 2nd respondent. The issue before the Court was whether the action was maintainable. It is not whether the 2nd respondent was liable.”

In this case the issue before the court was whether the appellant was acting in pursuance of his duty as a teacher when he caused injury to the respondent and not his liability for the injury which can only be determined after the case has been properly instituted. In this case as the respondent had failed to institute the action within the period stipulated by the law, his action was statute barred, and as was observed by Aniagolu, J.S.C., in Egbe v. Adefarasin No. 2 (1987) 1 NWLR (Pt.47) at p.13

“… if the action was barred by Statute, no amount of resort to the merits of appellant’s contention will serve to keep the action in being.”

I am satisfied the appellant was a public officer at the material time, that the act complained of occurred in pursuance of his duty as such public officer and that action was not brought against him within the period stipulated by law and consequently the action was statute-barred. The judgment of the Court of Appeal affirming that of the High Court which dismissed the appellant’s application and directed him to file his Statement of Defence within twenty-one days is hereby set aside. The respondent’s action filed on 20th July, 1987, not having been brought within three months of the occurrence of the act complained of, is hereby struck out. Costs assessed at N500.00 are awarded to the appellant.M. L. UWAIS, J.S.C.: I have had the advantage of reading in advance the judgment read by my learned brother, Kawu, J.S.C. I entirely agree that the appeal has merit and that it should be allowed.

The issue in the case before the trial Judge was whether the appellant could avail himself of the protection afforded him by section 2 subsection (a) of the Public Officers Protection Law, Cap. 106 of the Laws of Eastern Nigeria, 1963 and not, whether the appellant acted in the colour of his office as a teacher. The section provides in part as follows-

“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance of execution or intended execution of any law or of 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 case of a continuance of damage or injury, within three months next after the ceasing thereof…”

The action in the High Court was commenced on the 20th day of July, 1987 but the incident that gave rise to the action, namely the striking of the respondent in the eye with a cane which resulted in her losing the eye, took place on the 2nd day of December, 1985. The action was therefore instituted about nineteen months after the act complained of occurred. It is not in dispute that the appellant was employed as a teacher by Imo State Schools Management Board. Although neither the Public Officers Protection Law, Cap. 106 nor the Interpretation Law, Cap.66 of the Laws of Eastern Nigeria, 1963 define “Public Officer” it is not in dispute that the appellant was a public officer at the time the cause of action arose. I am indeed aware that some doubt had been expressed by the Court of Appeal (per Ogundare, J.C.A) in Utih v. Egorr (199O) 5 NWLR (Pt. 153) 771 at p.781 on the definition given to the words “public officer” in Aiyetan v. N.I.F.O.R. (1987) 3 NWLR (Pt.59) 48 by this court by relying on the definition of the words “public service of a State” in Section 277 subsection (1) of the 1979 Constitution. Be that as it may, it is not necessary in the present case to define “public officer” since, the parties and the lower courts do not dispute that the appellant was a public officer at the time the cause of action arose. It is clear from the facts, as averred in the respondents statement of claim, that at the time of the incident that gave rise to the cause of action, the appellant was acting in pursuance of his public duty as a teacher. In the discharge of that duty the appellant was entitled to exercise some disciplinary measure over the pupils of which the respondent was one. It is clear to me therefore, that the appellant came under the protection given to public officers by section 2(a) of the Public Officers Protection Law, Cap. 106. The fact that he was or could have been negligent in carrying out his public duty did not arise and could only be an issue if the action had been commenced within the three months prescribed by the Law – See Obiefuna v. Okoye (1961) All NLR 357; Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549; Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 13 and Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546.

In the result, for these and the fuller reasons given by my learned brother, Kawu, J.S.C. I too will allow the appeal and set aside the decisions of the lower courts. The action brought by the respondent in the High Court of Imo State is hereby struck out. N500 costs are hereby awarded in favour of the appellant against the respondent.

P. NNAEMEKA-AGU, J.S.C.: This is a further appeal by the 1st defendant against the judgment of the Court of Appeal, Enugu Division, which had dismissed his appeal against the judgment of Ogu-Ugoagwu, J., sitting at Owerri, in Imo Slate.

The plaintiff claimed the sum of N100,000.00 (one hundred thousand Naira) jointly and severally against the 1st defendant (appellant herein), the Director of Schools, Imo State, as the 2nd defendant, and The State School Management Board, as the 3rd defendant. According to the plaintiff, the 2nd and 3rd defendants had deployed the 1st defendant to the Community Primary School, Ohekelem, Imo State, a school said to be under the control and management of the 2nd and 3rd defendants. The relevant facts leading to the action have been set out admirably in the leading judgment of my learned brother, Kawu, J.S.C. I have had the opportunity of a preview and shall not repeat them. Suffice it to say that as a result of the flogging of the plaintiff, an eleven year old pupil of the school, by the 1st defendant, she sustained a serious injury in the left eye, for which she sued for special and general damages through her next friend.

It was common ground that the action was brought some nineteen months and eight days after the incident. It was not disputed either that the appellant was at all times material to the action a public officer within the meaning of section 277 and the 5th schedule to the Constitution of 1979. Nor was it disputed that the appellant was all times material to the suit a teacher in the school.

The only question is whether having regard to the circumstances of the flogging and the resultant injury, the appellant was entitled to protection under the Public Officers Protection Law (Cap. 106) Laws of Eastern Nigeria, 1958, applicable in Imo State. Relying on Godwin Nwankwere v. Joseph Adewunmi (1967) NMLR 45 at p.49, Kolawole, J.C.A. with whom the other two Justices of Appeal concurred adopted the opinion expressed in that case thus:

“The Law (i.e. Public Officers Protection Law) is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office 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.”

The Court also distinguished Egbe v. Adefarasin (1985) 1 NWLR 549 from the instant case. What this court has to decide is, therefore, whether their Lordships were right in their conclusions.

The preliminary question I have to consider is: on what facts do I have to decide this appeal I must point out that there was no trial of the facts raised in the statement of claim. So there cannot be any findings of fact, much less concurrent findings of fact by the two lower courts as suggested by the learned counsel for the respondent. Findings of fact can only emerge after a trial of issues of fact that have been joined on the pleadings. All that the rule (i.e. O.29 r.2) says is that for purposes of the application the defendant shall be taken as admitting the truth of the plaintiff’s allegations in the statement of claim. I do not think that mere admission of the facts in the circumstances contemplated by the rule justifies the learned Justices of Appeal to go to the extent of finding that “the action of the appellant is beastly and without justification” or to the supposition that “if, as a result of the flogging of the respondent, death were to result, could it be said that the appellant was acting in pursuance of a public duty” With respects, I am of the view that until trial, such conclusions and inferences of facts were unnecessary, particularly as they tended to obscure the court from making a proper and objective approach to the issue before it at that stage of the proceedings. What should have been considered was whether, in view of section 2 of the Public Officers Protection Law (Cap. 106) there was in existence any cause of action and a right of action which he could enforce by an action in court: Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1 at pp.20-21. The statements of the learned Justice of Appeal might have been apt if it were settled that the respondent had a cause and a right of action and the need then arose to consider the merits or the demerits of the case.

Now section 2 of the Public Officers Protection Law provides as follows:

“2. 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 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 …..

In interpreting the provisions of the section, I should give the words their ordinary and natural meaning, as I see no reason to the contrary: Okumagba v. Egbe (1965) 1 All NLR 62. If anything else, being a statute designed to protect the public officer, i should give it a construction beneficial to him: see Fred Egbe v. Alhaji & Ors. (1990) 1 NWLR (Pt.128) 546 at pp.599-600.

Giving the section its natural and ordinary meaning, it appears to me that it was designed to protect –

(a) a public officer

(b) against any action, prosecution or other proceeding, and

(c) for any act done in pursuance or execution or intended execution of any Law, or public duty, or authority, or

(d) for any alleged neglect or default in the execution of any Law, duty or authority.

The protection which the section gives is that:

the action, prosecution, or proceeding shall not lie unless it is commenced within three months next after the act, neglect or default complained of such an action can not be instituted, and if instituted shall abate.

This court has similarly interpreted the provisions of the section: see Fred Egbe v. Alhaji Abubakar Alhaji & Ors. (1990) 1 NWLR (Pt.128) 546 at pp.568-9; 580-581; 592-594 and 599-600.

Now, on the facts of this case, there is no dispute that the appellant was a public officer. He was at the material time employed as a teacher and deployed in the Community Primary School, Ohekelem, where he was assigned to teach the respondent. Taking judicial notice that under the laws of Imo State, the right to teach a pupil carries with it the right to discipline him/her, I feel bound to find that the appellant did the act complained of in this suit in pursuance or execution or intended execution of his public duty as a teacher. All the necessary ingredients to entitle the appellant to protection under the Law were therefore present in the case.

I must observe that the courts below denied the appellant protection on two further grounds: that what he did by flogging and injuring the respondent in the circumstances of this case was malicious and improper and that, in any event, from the case of Nwankwere v. Adewunmi (supra) the Law cannot protect the act in question which amounts to a felony. Learned counsel for the respondent has in argument before us sought to support the line of reasoning.

With greatest respects, I find it difficult to agree with this line of reasoning. Clearly the act which the courts below referred to as felonious, without trial, is the very default or neglect in the appellant’s intended execution of his public duty which the Law expressly protects. There are no degrees of defaults, some protected while others are not. To use it as a basis for denying the appellant of the protection which the law has given to him is to act contrary to the Law.

Also the court’s reliance upon Nwankwere v. Adewunmi (supra) is, in my respectful opinion, erroneous. For since the decision of this court in Egbe v. Alhaji & Ors. (supra) two clear principles have emerged, namely:-

(i) where a public officer commits the act complained of under the cover of his public office but the act is not in execution of his duties as a public officer, the Law does not give him any protection Nwankwere’s case (supra); but

(ii) where the public officer commits the act complained’ of and it is connected with and done in pursuance or execution or intended execution of the public duty, the Law still protects him: Egbe v. Alhaji (supra).

The instant case comes squarely within the principle in Egbe v. Alhaji. For this reason, I am of the view that the appellant is fully protected under the Law.

I must also observe that it does appear that the courts below allowed themselves to be influenced by the pleading in paragraphs 6, 7 and 8 of the statement of claim which tended to show that the appellant acted maliciously. But it has been settled in Egbe v. Alhaji (supra) that where the act in question comes within the four corners of the acts intended to be protected under the Law, malice is irrelevant in that proof of malice cannot take an act which ought to have been protected out of the statutory protection. Malice can only be relevant where there is no protection and the issues of liability and damages arise.

For the above reasons and those contained in the judgment of my learned brother, Kawu, J.S.C., I agree that the appeal has merit. The right of action had expired before the suit was filed. I allow the appeal and subscribe to the orders made in the lead judgment.

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Other Citation: (1991) LCN/2481(SC)