God Bless Ezenwata Nigeria Limited V. Sunday Odioku & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment)

The Appellant herein, which was the Plaintiff at the Lower Court is in the transportation business. The Appellant is the owner of a Toyota Hiace vehicle with Registration number XP 621 LND which it uses to transport fare paying passengers. On 26th, April 2007,the Appellant’s said Hiace vehicle was travelling between Lagos and Onitsha, when at Agbor along the Benin-Onitsha Expressway it was involved in an accident with a MAN Diesel Truck belonging to the 3rd Respondent and which was at the material time driven by the 1st Respondent.

The Appellant’s Toyota Hiace vehicle was damaged. On 21st April 2008, the Appellant instituted proceedings against the Respondents claiming special and general damages for the damage and loss occasioned.

Upon being served with the originating processes, the 3rd Respondent entered a conditional appearance and further filed a preliminary objection challenging the competence of the action and the jurisdiction of the Lower Court to entertain the same.

The said preliminary objection was duly argued and in a considered Ruling delivered on 17th June 2009 the Lower Court upheld the preliminary objection and struck out the action against the 3rd Respondent on the ground that the action was statute barred by virtue of the provisions of Section 2 (a) of the Public Officers Protection Law, Cap. 137 Laws of the Defunct Bendel State as applicable to Delta State. The Ruling of the Lower Court is at pages 53 – 61 of the Records.

The Appellant being dissatisfied with the said Ruling appealed against the same. The Notice of Appeal is at pages 62 – 66 of the Records. The Records of Appeal having been complied and transmitted, the parties filed and exchanged briefs of argument.

The Appellant’s Brief of Argument is dated 4th November 2010 but filed on 19th November 2010. The Appellant also filed a Reply Brief which is dated and filed on 11th November 2013. The Respondents Brief of Argument is dated 28th October 2013, filed on 24th October 2013 and deemed as properly filed and served on 28th October 2013. The Appellant distilled two issues as arising for determination as follows:

“(1) Whether the Provision of the Public Officers Protection Act, Laws of the Federation is applicable to the Public Officers of the state of Delta State even when the Delta State Legislature have taken care of the Provision by enacting laws on public officers protection.

(2) Whether the twelve months statutory period created for the commencement of action against the Direct Labour Agency of Delta State as provided in Section 20 of the Delta State Direct Labour Agency Laws 1999 as it affects the Direct Labour Agency of Delta State alone supercedes the provision of the statutory period of three months provided in the Public Officers Protection Law Cap 137 Laws of the defunct Bendel State as applicable now in Delta State as it applies to Direct Labour Agency of Delta State alone as a public officer.”

The Respondent distilled a sole issue for determination, namely:

“Whether the Learned Trial Judge was not justified in Law and in the circumstances of the case to hold that the Appellant’s action against the 3rd Respondent was statute-barred and the Appellants right of action against her extinguished.”

At the hearing of the appeal, Ms T. O. Ezike,counsel who appeared for the Appellant adopted the submissions in the Appellant’s Briefs, which were both settled by Maurice C. Efobi, Esq., and she urged the Court to allow the appeal. In the same vein, A. O. Orhorhoro, Esq., Assistant Director, Department of Civil Litigation, Ministry of Justice, Delta State who appeared for the Respondents adopted the submissions in the Respondents’ Brief of Argument and he urged the Court to dismiss the appeal.

I have insightfully considered the Records of Appeal and the Briefs of Argument filed by the parties and I am of the informed view that the issues for determination as distilled by the Respondents bring out more clearly the pith of the issue arising for determination in this appeal. Accordingly it is on the basis of the issue as distilled by the Respondents that I will consider the submissions of learned counsel and resolve this appeal.

ISSUE FOR DETERMINATION