Michael Obiefuna V. Alexander Okoye (1964)

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TAYLOR JSC

The appellant, who was plaintiff in the action Instituted in the High Court of Lagos, claimed the sum of £2,000 being general damages for personal injuries suffered as a result of an accident alleged to have been caused by the negligence of the defendant/respondent who was the driver of a motor vehicle No. LB 4791. The appellant was at the time of the accident a pillion rider on a motorcycle driven by one Solomon Omeili, P.W. 4.

The learned trial Judge upheld the submission of Counsel for the defendant that the action was barred by section 2 of the Public Officers’ Protection Ordinance not having been commenced ‘Within three months next after the act, neglect or default complained of.” After holding that there was no alternative but to dismiss the action, the learned trial Judge then went on to consider the other aspects of the case and came to the conclusion that:

“I would hold on the facts as proved that the defendant is guilty of negligence. I find no negligence on the part of the plaintiff and do not accept the story that the motorcyclist was wiping his face when crossing the junction.”

The plaintiff has appealed to this Court and his three Grounds of Appeal filed with the Notice of Appeal deal solely with the finding that the action was statute-barred, and they read as follows:-

1. The learned trial Judge erred in law in giving judgement for the defendant on the ground that the action was barred, when on the facts placed before the Court it was not barred, since the action was brought within three months of the ceasing of the damage or injury complained of.

2. The learned trial Judge erred in law in dismissing the plaintiff’s case on a point that was not specifically pleaded in the Statement of Defence, namely, that the action was barred by the operation of the Public Officers’ Protection Ordinance.

3. The learned trial Judge erred in law in dismissing the plaintiff’s claim in that the negligence alleged against the defendant was not in respect of any alleged neglect or default in the execution of any Ordinance, duty or authority as envisaged by the Public Officers Protection Ordinance and there was no evidence to that effect.”

Learned Counsel for the appellant abandoned ground one at the hearing of the appeal and argued only the second and third grounds. He submitted on Ground 2 that there were insufficient facts pleaded if reliance was to be placed on the Public Officers’ Protection Ordinance, and that from paragraphs 3 and 5 of the Statement of Defence the facts relied on show no other defence than that of a denial of negligence on the part of the defendant. Learned Counsel urged that the Statement of Defence should have contained averments to the effect that the action was being brought more than three months after the happening of the incident. Our attention was drawn to the cases of Ademola II v. Thomas, 12 W.A.C.A. 81, page 88; Lee v. Rogers, 83 E.R. 322, p. 323; Dockings v. Lord Penryn, 1878, 4 A.C. 51 and Domingo Paul v. Mrs F. A. George, 4 F.S.C. 198, p. 207. On Ground 3 Learned Counsel contended that the duty must be in the nature of a public one or must be one done in pursuance of an act of Parliament or Ordinance; that a Policeman sent on an errand and given a car or vehicle for the purposes is not a person envisaged by the section of the Ordinance. Here our attention was drawn to the case of Harriet v. Fisher, [1927] A.C. 573, pages 583 and 590.

Mr Wheeler, for the respondent, argued that sufficient detail was pleaded in the Statement of Defence to apprise the plaintiff of the defence intended to be raised; that the plaintiff never at any time applied for particulars and at no stage of the proceedings did the plaintiff take this post now being taken on appeal. On the last Ground, Counsel contended that there can be no doubt whatever that a Policeman driving a Police van in the course of his duties was a person acting in the execution of a public duty; that in this case the police officer was performing a duty under S.236 of the Criminal Procedure Act. Counsel drew our attention to the cases of] Edward v. Metropolitan Water Board, [1922] 1 K.B. 291, page 302, Betts v. Receiver for Metropolitan Police District, [1932] 2 K.B.D. 598, pages 6012, and Reeves v. Freeman, [1953] 1 Q.B.D. 459, page 469.

The facts relevant to the point raised in Ground 2 of the Grounds of Appeal will be found in paragraph 2 of the Statement of Claim, and paragraphs 3 and 5 of the Statement of Defence which read thus:-

“2. The defendant is a policeman residing at the Police Barracks, Yaba, and is sued in his personal capacity.”

This seems to us to show that the plaintiff is aware of the possibility of the defendant wishing to rely on a defence relating to his official capacity. In answer to this paragraphs 3 and 5 of the Statement of Defence aver that:

“3.  The defendant admits that he is a Police Constable in the Nigeria Police Force.”

“5.  The defendant avers that on the 24th day of May, 1958 at about 11.30 a.m., he was driving the vehicle No. LB 4791 during the course of his duty along King George Avenue carefully …etc.”

Before we consider the evidence that was led on this point, the first question for determination is whether the defendant has by his defence sufficiently brought it home to the plaintiff that he Intends to rely on the Public Officers Protection Ordinance, section 2 of which reads as follows:

“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 Ordinance or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance, 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 provision which follows is riot relevant for the purposes of this action on appeal. In our view no useful purpose will be served by considering the English cases on this point of pleading for as the West African Court of Appeal observed in Ademola II v. Thomas, 12 W.AC.A 81, page 89:

“In this connection it may be observed that while it is true, as contended by Counsel for the appellants, that according to English practice, this defence must be specially pleaded [i.e., the defence under the same Ordinance] yet by virtue of the Rules of the Supreme Court of Nigeria, Order XXXII rule 13, it is sufficient that there should be pleaded the facts upon which it is relied to establish a special defence of this nature. These facts were sufficiently pleaded in paragraph 13 of the Statement of Defence.”

This is equally true of paragraphs 3 and 5 of the Statement of Defence when read in answer to paragraph 2 of the Statement of Claim. They Inform the plaintiff that the defendant at the time of the incident was a police officer, and though the plaintiff says he sues the defendant In his personal capacity, the latter relies on his position as a police officer, a public officer, and also on the fact that the act the Area Of Law of the action arose out of the performance by the defendant of a public duty, or to put I in the words of the pleader, arose In the course of his duty. Now during the hearing it was the plaintiff himself who deposed to the vehicle which knocked him down being a “Police car”, a “Black Maria Van”, and the third Plaintiff Witness, William Uba, who said that:

“After the Impact, I ran out of my shop to assist the plaintiff. I saw the defendant. He came down from the van. I recognised him as a public officer.”

When the defence opened, no objection was raised when Defence Witness I gave evidence saying that:-

“On 24-5-58, the defendant was on duty. He was assigned to drive a black-maria on that day for the purposes of carrying prisoners to and from the Court.”

In fact the cross-examination of the witness was devoted mainly to this point in an endeavour to establish that at the material time the defendant was not assigned to convey prisoners, but without success. This Ground of Appeal must in our view fail and is dismissed.

On the third Ground of Appeal, the facts as deposed to show quite clearly that

(i) the defendant was a police officer,

(ii) that on the day in question he was driving a police van,

(iii) that at the material time he was performing a duty assigned to him as a police officer – a public duty, i.e., the conveying of prisoners in the Black Maria from the prisons to Court and back again. We find it difficult to understand the line of argument that says that a cause of action arising out of the mode in which the defendant drove the vehicle in the performance of and in the course of the duty Imposed on him is not one envisaged by the Public Officers Protection Ordinance. In this respect we would refer to the Judgement of Somervell, L. J. In Reeves v. Deane-Freeman, [1953] 1 O.B. 459, page 468, where he said that:

“Mr Vester’s next point was that a soldier, as here, during a lorry on a highway, should be regarded as not on the execution of his duties, but the accident should be regarded as caused by a breach of a private right.

I find great difficulty about that. In all the ordinary cases, of course, the plaintiff is complaining of a breach of his private rights. Once one comes to the conclusion to which I have come that the neglect was in the carrying out of duty, as is indeed the commonest case which occurs where the protection of the Act is invoked, I do not think that that submission avails the plaintiff. Once you find that the claim is based on some act or neglect in carrying out duties, it seems to me that, having regard to the cases which I have cited, the Act applies.”

The facts of this case on appeal are fully covered by S.2 of the Public Officers Protection Ordinance and in our view this Ground of Appeal must also fail, and the appeal is dismissed. In view of the circumstances of the appeal we make no order as to costs as to costs in this Court.

Other Citation: (1964) LCN/1169(SC)