Lagos City Council (Trading Under The Name Of Lagos City Transport) V. S. A. J. Ogunbiyi (1967)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N.

The defendant/appellant runs transport service in Lagos and its environs, and it is not in dispute that the plaintiff/respondent on the 12th August, 1965 travelled in one of its buses along Ikorodu Road from Lagos. A lady was the conductress in charge of the bus and the plain-tiff/respondent paid his fare of 8d. by tendering Is. to the conductress who said she would give the change later. The plaintiff/respondent got to his destination and demanded the change of 4d.; he was given a sum of Id. and an argument ensued. The conductress pressed the bell for the bus, which was then at a standstill, to move.

The plaintiff/respondent asked her to stop the bus as he must get down; he returned the Id. to the conductress who then pressed the bell and the bus stopped. It would appear that before the plain-tiff/respondent actually alighted from the bus the conductress pressed the bell and the bus moved. The plaintiff/respondent fell down, his two legs were crushed and he had to be carried to the hospital. His right leg was amputated above the knee and the left leg which was saved, according to the surgeon, may have to be amputated at a future date.For the present it would continue to cause him constant pain. In an action for negligence brought by the plaintiff/respondent the learned judge in the High Court of Ikeja awarded him damages of £15,741 and 250 guineas costs.

This appeal is against both the decision and the amount awarded as dam-ages on the ground (1) that as the action was not commenced “within three months next after the act complained of’ the defence or plea under section 2 of the Public Officers Protection Act should have succeeded and (2) that damages awarded in any case was excessive.

On the first ground it was argued that the Lagos City Council being a corporate body and running transport service for profit by virtue of sections 9(d), 92 & 142 of the Lagos Local Government Act, Cap. 93, its officers can claim the protection of the Public Officers Protection Act. It was not seriously contested that the officers of the Lagos City Council are not en-titled to the protection of the Act but what has come up for decision is whether the protection which the Act affords can be claimed where the act of the defendant was malicious.

There was ample evidence before the learned trial judge, which he accepted, that there was exchange of words in the bus and the conductress became abusive, violent and intolerant to the plaintiff/respondent and that her action was deliberate when she pressed the bell for the bus to move on, knowing well that the plaintiff/respondent had not fully alighted from the bus. There can be no doubt that the evidence before the learned trial judge, if accepted, provides ample grounds for coming to the conclusion that the action of the conductress was malicious.

It was argued that to rely on the protection of the Act, one who claims the protection must have acted without malice. In other words if the acts are done maliciously the Act will not afford protection. In the case Newell v. Starkie (1920) P C. 89 L. J. R. 1, where a plea of malice was considered as affecting the protection of the English Act, Lord Finlay at page 6 of the report said:-

“The second observation which I have to make is that the Act necessarily will not apply if it is established that the defendant had abused his position for the purpose of acting maliciously. In that case he has not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavouring to carry it out. In such a state of facts he has abused his position for the purpose of doing a wrong, and the protection of this Act, of course, never could apply to such a case.”

We are in agreement with the views of the learned judge that the evidence before the court provides ample justification that the conductress had acted maliciously and her actions had debarred her from the protection of the Act.

Learned counsel for the appellants, however, submitted that as malice was not specifically pleaded by the plaintiff/respondent the learned judge was wrong to have inferred it from the evidence before the court. We do not see any substance in this submission since it was clear from paragraph 7 of the statement of claim that the plaintiff had alleged that the conductress acted maliciously. In fact, apart from the general traverse there was no denial of this paragraph in the statement of defence. This ground of appeal therefore fails.

The only other ground of appeal argued before us was on the quantum of damages awarded. In this connection an item of £500 was awarded by the learned trial judge for loss of expectation of life. Counsel for the appellant argued that there was no medical evidence on this point and the judge was in error in making this award without such evidence. In his judgment, the learned judge in making his award of damages said as follows:-

“I consider the plaintiff’s condition to be very serious and pitiable. I hereby award the plaintiff damages as follows:

(a) £241 special damages; (b) £500 for loss of expectation of life and (c) £15,000 as general damages, of which, in my estimation, £5,000 should be attributable to his being conscious of his present unfortunate condition and its attendant handicaps to him for the rest of his life.”

With respect to the learned judge we do not see how he came to award the £500 under item (b) since this was never made a separate item of claim in the writ, in the particulars of claim made by the plaintiff nor was it made a claim in his statement of claim. We are of the view that the award under this item must be disallowed.