Rufus Alli Momoh V Afolabi Okewale & Lagos City Council. (1977)
LawGlobal-Hub Lead Judgment Report
SIR UDO UDOMA, J.S.C.
This is an appeal by the plaintiff against the judgment of the High Court of Lagos State dated 12th July, 1972, in which the plaintiff’s claim for damages for negligence was dismissed.
In Suit No. LD/487/69 instituted on 18th September, 1969, the claim by the plaintiff, herein appellant, against the defendants, herein respondents, was for the sum of 4,111.1s. 6d as general and special damages for the negligence of the first defendant as servant/driver of the second defendant in driving second defendants bus No. LJ. 8146 on 10th June, 1969, whereby it collided with and knocked down the plaintiff on Carter Bridge, Lagos, in consequence whereof the plaintiff suffered injuries, pain and loss and damage.
Pleadings having been filed and delivered, the suit was heard by Adefarasin, J., as he then was.
The case of the plaintiff, which was accepted by the learned trial Judge briefly put, was that the plaintiff, Rufus Alli Momoh a security officer, was in June, 1969, working at the American Embassy, Lagos, as a Commissionaire. On 10th June, 1969, he was returning from work riding on his motor cycle No. LH. 6671 – a Mobylette – and keeping to his correct side of the road on the Carter Bridge, traveling towards Iddo Railway Terminus, when he was suddenly hit from the rear, knocked down and his motor cycle damaged by a bus No. LJ. 8146, belonging to the second defendant. The bus was then being driven by the first defendant, a driver employed by the second defendant.
As a result of the accident, the plaintiff sustained severe injuries, including fracture of his left leg, and bruises on his head, arm and neck.
Negligence was denied by the defendants who, in addition, pleaded in paragraph 9 of their amended Statement of Defence as follows: –
“9.The defendants will contend at the trial that the action is statute-barred under Section 2(a) of the Public Officers Protection Act, Cap. 168 of the Laws of the Federation of Nigeria.
Particulars of Special Defence
(a)The Plaintiff’s right of action accrued on the 10th June, 1969.
(b)The plaintiff did not commence action until the 18th September, 1969.”
The learned trial Judge in his judgment, found on the evidence, that the first defendant drove his bus into and hit and knocked down the plaintiff and the motor cycle from the rear; and that without doubt, the first defendant was negligent in the manner in which he drove and managed the bus on that day. He also held that but for the view which he took of the special defence pleaded by the defendants, that the provisions of Section 2 of the Public Officers Protection Act, Cap. 168, Laws of Nigeria, 1958, applied and afforded protection to the first defendant, he would have had no difficulty whatsoever in entering judgment for the plaintiff.
All the same, he assessed general damages to which he felt the plaintiff was entitled at 800pounds. He also held that the special damages claimed had not been established on the evidence. Thereupon he dismissed the plaintiffs claim on the ground that the same was statute barred by virtue of the provisions of Section 2 of the Public Officers Protection Act, Cap. 168, since the suit had not been commenced, according to him, within 3 months of the accident.
The plaintiff has now appealed against that judgment to this court on a number of grounds. Of all the grounds, the most important argued before this court is that the learned trial Judge was wrong in law in holding that the first defendant – the Lagos City Council driver – was a Public Officer at the material time when the accident occurred, and therefore, was protected by the provisions of Section 2 of the Public Officers Protection Act, Cap. 168, Laws of Nigeria, 1958, and that since the suit had not been commenced within 3 months of the accident, it was statute-barred.
In his submissions, Mr. Molajo, learned counsel for the plaintiff, in arguing the appeal, pointed out that by the provisions of Section 10 of the Lagos Local Government Act, Cap. 93, the Lagos City Council first came into existence on 12th November, 1953, when it was constituted in succession to the Lagos Town Council under the Lagos Local Government Ordinance, 1950. It was then established by law as a body corporate by the name of the Lagos Town Council, and accorded perpetual succession and a common seal. So that the Lagos City Council as is known today is a distinct legal person from the first defendant, its driver. The Lagos City Council as a distinct legal entity can sue and be sued and can defend and prosecute any legal proceedings in any court where it is necessary so to do for the promotion or protection of the interests of the inhabitants of the town. (See Section 170).
Learned counsel also pointed out that, although there have been other amendments since 1953, nothing has happened to diminish the legal status of the council. On the contrary, contended learned counsel, all that had happened has rather enhanced the status and competence of the council.
It was then submitted by learned counsel that a distinction must be drawn between the Lagos City Council as a council, which is the second defendant in the present proceedings, and the first defendant, its driver, who is not merely a creature of statute.
It was the submission of learned counsel that a Public Officer is clearly defined by Section 18 of the Interpretation Act, 1964; and that a public officer as therein defined would not and could not include a driver like the first defendant, who is an employee of the Lagos City Council.
Learned counsel then referred to and relied on Chapter 10, Section 147 of the Constitution of the Federation as regards the system or method of appointing officers into the public service, whether of the Federation or of a State, as descriptive of a public officer as distinct from a driver employed by the Lagos City Council. It was also contended by learned counsel that there was no evidence throughout the proceedings to establish that the driver involved in the present proceedings was appointed by the Public Service Commission either of the Federation or of Lagos State or indeed, that he is a member of the Public Service of Lagos State at all.
In these premises, learned counsel submitted that the learned trial Judge was in error in holding that the first defendant was protected by the Public Officers Protection Act, Cap. 168.
We turn now to consider these submissions, and in doing so, we must examine how the learned trial Judge dealt with the issue as to whether or not the driver was a public officer and the manner of his appointment into the service of the Lagos City Council.
In dealing with that issue, the learned trial Judge said:
“I now return to the contention that the driver of a Lagos City Council bus is not a public officer. I think he is a public officer within the meaning of Section 2 of the Public Officers Protection Act and Section 18 of the Interpretation Act. Even if I am wrong in this view, it seems to me that the requirement of the Public Officers Protection Act is that the person protected shall be a person acting in the execution of a public duty and it is clear that the Lagos City Transport Service which is owned by the Lagos City Council operates the bus services under a public duty derived under the Local Government Law.”
In support of this decision, the learned trial Judge quoted and relied on the observations of de Lestang, CJ., as he then was, in Lagos Municipal Transport Service v. Peter Ibechim (1961) Law Reports of the High Court of the Federal Territory of Lagos, p. 146.
In the light of the submissions made to us on the issue as to whether or not a driver employed by the Lagos City Council is a public officer to be protected by the provisions of Section 2 of the Public Officers Protection Act, Cap. 168, Laws of the Federation of Nigeria, Vol. II, 1958, we are of opinion that Lagos Municipal Transport Service v. Peter Ibechim (supra) is irrelevant. Three issues were determined by the High Court in that case which, incidentally, was also a claim sounding in negligence. The issues were:
1.That the Lagos Municipal Transport Service was not a legal person and could not be sued in court in that name and therefore that the action was bad in law;
2.That the Lagos Municipal Transport Service was operated by the Lagos Town Council and that the Lagos Town Council was protected by the Public Authorities Protection Ordinance; and
3.That the maxim res ipsa lequitur did not apply to the facts of the case as established on the evidence.
The public officers Protection Act, Cap., 168, was nowhere mentioned throughout the judgment, let alone considered.
There can be no doubt that there had been in the past a tendency to confuse the ambit of operation of the provisions of Section 2 of the Public Officers Protection Act, Cap., 168, with the relevant provisions of Section 1 of the English Public Authorities Protection Act, 1893, (56 and 57 Vict. C. 61), because the provisions of Section 2 of the former Act were lifted almost wholesale from the provisions of Section 1 of the English Public Authorities Protection Act, 1893.
It seemed to have been over-looked that there is a vast difference between the titles of the two Acts. The Nigerian Act is entitled: “Public Officers Protection Act”, whilst the English Statute bears the title of “Public Authorities Protection Act”.
The aims and objects and the purposes of the two Acts are also different. The intention of the British Parliament in enacting the English Act was to protect Public Authorities engaged in the discharge of responsibilities imposed upon them by Parliament. The Nigerian law was aimed at protecting public officers as individuals in the discharge of public duties.
Public Authorities are usually bodies corporate and therefore legal persons. In both the Nigerian and the English Acts, the titles form part of the Acts as aids to interpretation and enforcement of their provisions.
In England, the tendency and indeed, the attitude of the courts has been to restrict and not to widen the field and scope of the application of the Public Authorities Protection Act, 1893.
In T. Tilling Limited v. Dick Kerr and Co. Ltd. (1905) 1 KB 562, it was held that the protection given by the Public Authorities Protection Act, 1893, does not extend to an independent contractor doing under contract and for his own profit work which a Public Authority has been authorised to do. Where, for example, tramways were carried on for the purpose of earning profits, it was held in Attorney-General v. Company of Proprietors of Margate Pier & Harbour (1900) 1 Ch. 749 that even the London city Council was not entitled to the benefit of the Act. And in Parker v. London County Council (1904) 2 KB 501, it was held that the words “Any persons” in Section 1 of the Public Authorities Protection Act, 1893, must be read with some limitations, and not in their widest sense.
Now, the issue for determination and decision in the instant appeal is: Is a driver employed by the Lagos City Council a Public Officer And is he protected by the Public Officers Protection Act, Cap. 168.
The relevant provisions of Section 2 of the Public Officers Protection Act, Cap. 168, vol. II, Laws of Nigeria, 1958, are as hereunder set forth:
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any ordinance or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance Law, duty or authority, the following provisions shall have effect: –
(a)the action, prosecution, or proceeding, shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”
In Section 18 of the Interpretation Act, No. 1 of 1964, Laws of the Federation of Nigeria, a public officer is defined as “a member of the public service of the federation within the meaning of the Constitution of the Federation or of the public service of a region (state) within the meaning of the Constitution of the region” (state).
The provisions of Section 147 of the Constitution of the Federal Republic of Nigeria which need be considered are the following:
“147.(1) Power to appoint persons to hold or act in offices in the public service of the Federation (including power to make appointments on promotion and transfer and to confirm appointments) and to dismiss and exercise disciplinary control over persons holding or acting in such offices shall vest in the Public Service Commission of the Federation:
Provided that the commission may, with the approval of the Prime Minister and subject to such conditions as it may think fit, delegate any of its powers under this section to any of its members or to any officer in the public service of the federation.
(2)Subsection (1) of this section shall not apply in relation to any of the following offices –
“(a.)the office of any Justice of the Supreme Court or the High Court of Lagos;
(b.)except for the purposes of making appointments thereto, the office of the Director of Audit of the Federation;
(c.)any office in the Nigeria Police Force; or
(d.)any office to which Section 148 of this Constitution applies.
(3) The provisions of this section shall be subject to any office on the personal staff of the President unless the president signifies his approval of the appointment.”
In terms of the provisions of the Constitution of the Federation set out above, to hold or act in an office in the Public Service of the Federation and to be qualified to be described as a public officer, a person must have been appointed thereto, with certain exceptions, by the Public Service Commission of the Federation. Similarly, in the case of a state, which now includes Lagos, to be entitled to be described as a public officer a person must have been appointed to the office which he holds and in which he is serving by the Public Service Commission of the State concerned.
There was no evidence before the High Court of Lagos State that the first defendant was appointed to the office of driver of the Lagos City Council by the Public Service Commission either of the federation or of the state of Lagos.
As the averments that the action was statute-barred under Section 2 of the Public Officers Protection Act, Cap. 168 of the Laws of the Federation was specially pleaded by the defendants, the onus was on them to establish by evidence that the first defendant was a public officer under the Constitution, having been appointed as a driver for the Lagos City Council by the Public Service Commission of Lagos State as prescribed by the Constitution. That onus, in our view, the defendants had failed to discharge.
We think that the decision of this court in A. Ihegbu v. Lagos City Council Caretaker Committee and Anor. (1974) 1 All NLR (Part I) to which our attention was drawn is not directly in point, having regard to the issue for decision in the present appeal.
In that case our decision was strictly in effect that the Public Officers Protection Act, Cap. 168, being a Federal Statute, and not the applicable law in Lagos State, would no longer apply to the territory of Lagos, which has since ceased to be a Federal Territory and has become an autonomous State under the Constitution; that the Statement of Defence filed in that suit lacked clarity in that the pleader did not clearly specify on whose behalf of the two defendants therein, the defence was raised as the Lagos City Council as such is a corporation aggregate, and therefore, a distinct legal person in law.
On a careful consideration of the evidence and the law involved in the appeal under consideration, we are satisfied and hold that the learned trial Judge was clearly wrong in law in holding that the first defendant was a public officer, and therefore, protected by the provisions of Section 2 of the Public Officers Protection Act, Cap. 168. We accordingly reverse that decision.
Having reached that conclusion, we are also satisfied that the plaintiff ought to have succeeded in his claim in the High Court against the defendants. We think that on the evidence, the learned trial Judge was justified in assessing the damages to which the plaintiff is entitled as 800 (now N1,600) since the plaintiff had failed to establish the special damages claimed by him.
This appeal succeeds. It is accordingly allowed. The judgment and order of the High Court dated 12th July, 1972, dismissing the plaintiff’s claim with costs is hereby set aside. Plaintiff’s claim succeeds.Judgment is entered for the plaintiff in his claim for negligence against the defendants.
The plaintiff is awarded damages in the sum of N1,600.00. And this shall be the judgment of the court. The plaintiff is also entitled to costs in the High Court assessed and fixed at N30.00 and in this court at N213.00. Order accordingly.
Other Citation: (1977) LCN/1891(SC)