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