Michael Obiefuna V. Alexander Okoye (1964)

LawGlobal-Hub Lead Judgment Report

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.”