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.