John Ekeogu Vs Elizabeth Aliri (1991)

LawGlobal-Hub Lead Judgment Report

S. KAWU, JSC 

 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 employ ment, 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 Section 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 Section 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 team 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, JCA., 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(11) 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.16, 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 Section 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 Laws 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 of public duty or authority, or (ii) in respect of any alleged neglect of default in the execution of Law, duty or authority. The acti

Other Citation: (1991) LCN/2471(SC)