Y. A. EKEMODE (DEFENDANT/APPELLANT)
S. K. ALAUSA (PLAINTIFF/RESPONDENT)
Division: High Court of Justice (West)
Date of Judgment: 6th January, 1961
Case Number: CIVIL APPEAL from magistrate's Court: Appeal No. AB/32A/59
Before: Charles J.
The defendant/appellant who was a Road Overseer under the Epe District Council caused the plaintiff/respondent's canoe to be broken up after he, the defendant/appellant had had it removed from the water-way at Epe in carrying out an instruction of the District Council that the foreshore, water-way and landing route were to be cleared.
The plaintiff/respondent sued him in the magistrate's court claiming damages for wrongful destruction of his canoe and obtained Judgment on the ground that the defendant/appellant, as road overseer, was not a public officer and therefore not entitled to the benefits of the Public Officers' Protection Ordinance. On appeal.
(1) That the words "any person" in section 2 of the Ordinance are wide enough to cover any person whose employment requires him to act pursuant to or in execution or intended execution or any ordinance or of any public duty or authority, whatever his status or grade.
(2) That reference to "public officers" in the short title to the Ordinance is insufficient to justify a distinction between employees of a public authority on the basis that some are officers of the authority and others are of a lower status.
(3) That the defendant's authority and duty extended solely to the clearing of the foreshore, water-way, and landing route at Epe; and if, in the course of removing the canoe from the water-way, it became damaged the defendant would be entitled to the protection of the Ordinance. However, the deliberate breaking-up of the canoe after its removal from the water-way, being neither necessary nor incidental to the exercise of the defendant's duty but in excess thereof, the defendant was not entitled to the protection of the Ordinance. For which reason the Judgment in damages was upheld.
Cases referred to:-
Bradford Corporation v. Myers (1916) 1 A.C. 242; 85 L.J.K.B. 146; 114 L.T. 83; 80 J.P. 121; 32 T.L.R. 113; 60 Sol. Jo. 74.
Greenwell v. Howell (1900) 1 Q.B. 535; 69 L.J.Q.B. 461; 82 L.T. 183; 48 W.R. 307; 16 T.L.R. 235.
Edwards v. Metropolitan Water Board (1922) 1 K.B. 291; 91 L.J.K.B. 210; 126 L.T. 300; 86 J.P. 33; 38 T.L.R. 153; 66 Sol. Jo. 195.
Scammell and Nephew Limited v. Hurley (1928) 1 K.B. 419; 98 L.J.K.B. 98; 140 L.T. 236; 93 J.P. 99; 45 T.L.R. 75; 73 Sol. Jo. 12.
Omotosho (for Ayoola) for Appellant.
Okenla for Respondent.
Charles, J.:-This is an appeal from the decision of a magistrate's court awarding £90 as damages for wrongful destruction of a canoe and 8 guineas costs.
The learned magistrate found that the defendant/appellant who was the Road Overseer of the Epe District Council had caused the plaintiff/respondent's canoe to be broken up after he, the defendant appellant, had had it removed from the water-way at Epe in carrying out an instruction of the Epe District Council that the foreshore, water-way and landing route were to be cleared. According to the evidence, the Council's instruction did not extend to the destruction of canoes.
The only ground of appeal which has been argued is that the action should have been dismissed under the Public Officers Protection Ordinance 1947 (Cap. 186) because it had not been commenced within three months of the defendant's wrongful act. The learned magistrate had held that the Ordinance did not apply to the defendant as "the type of officer entitled to this protection must be holders of public office under the Crown or Council or public agents but not labourers or head labourers."
The Public Officers Protection Ordinance is entitled "An Ordinance to provide for the protection against actions of persons acting in the execution of public duties." Section 1 provides that the Ordinance may be cited as the Public Officers Protection Ordinance. The only other section, section 2, commences:-
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 of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Ordinance duty or authority, the following provisions shall have effect.
The first of the following provisions is that the action, prosecution or other proceedings shall not be instituted after three months from the act, neglect or default complained of.
I do not agree with the reasons of the learned magistrate. The words "any person" in section 2 are at least wide enough to cover any person whose employment requires him to act pursuant to or in execution or intended execution of any Ordinance or of any public duty or authority, whatever his status or grade. The short title of the Ordinance may, perhaps, confine section 2 to the persons mentioned because of its reference to "public officers" but it appears to me that the reference is insufficient to justify a distinction between employees of a public authority on the basis that some are officers of the authority and others are of a lower status. Apart from the fact that the Legislature has given no guide as to how such a distinction is to be drawn, it is to be presumed that it was not intended because it would create the absurd position that, while an officer who, in good faith, directed a wrongful act to be done in discharge of a statutory duty would be protected, his subordinates who did the act but who did not have the status of officers, such as labourers perhaps, would not be protected. It is to be noted that no such distinction has been drawn with reference to section 1 of the Public Authorities Protection Act 1893, of which section 2 of the Ordinance is a verbatim reproduction. The words "any person" in section 1 of the United Kingdom Act have been limited, because of the long title of the Act, to public authorities as distinct from individuals acting under private Acts of Parliament (Bradford Corporation v. Myers (1916) 1 A.C. 242 at 247 per Lord Buckmaster L.C.) but, nonetheless, they have been held to cover the individual subordinates who carry out the mandates of public authorities. (Greenwell v. Howell (1900) 1 Q.B. 535 at 540 per Collins L.J.).
For other reasons, however, I agree with the learned magistrate that the defendant was not entitled to the protection of the Ordinance.
As Lord Haldane said of section 1 of the United Kingdom Act (Bradford Corporation v. Myers (sup.) at 251), it is difficult to say either abstractly or exhaustively what causes of action are covered by section 2 of the Ordinance. However, I venture to say that, in the case of legislation which has been drafted, as has the section under consideration, with a plethora of words and in a context which does not entirely make sense, the only interpretative approach is to act upon the general intention which the draftsman had set out to achieve manifestly, and not to weigh each word with undue nicety as to its strict grammatical meaning. On that approach the effect of section 2 of the Public Officers Protection Ordinance appears to me to be as follows:-
(i) An act or omission on the part of a person to whom the section relates is within the section if it is proved that it was done or it occurred:-
(a) in the course of commencing to discharge, or in the course of discharging a public duty, or
(b) in the course of doing something incidental to the discharge of such a duty, or
(c) in the course of commencing to exercise, or in the course of exercising an authority or power conferred for a public purpose, or
(d) in the course of doing something incidental to the exercise of such an authority or power.
(ii) An act on the part of a person to whom the section relates is also within the section if it is proved that it, by itself, was incidental to the discharge of such a duty, or the exercise of such an authority or power, as above mentioned.
(iii) A total failure to discharge any duty or to exercise any authority or power as above mentioned on the part of a person to whom the section relates is also within the section.
The foregoing is suggested, in my opinion, by the Judgments in Bradford Corporation v. Myers (sup.) and Edwards v. Metropolitan Water Board, (1922) 1 K.B. 291 C.A. Once, but not until, a wrongful act or omission is shown to have occurred in any of the circumstances mentioned, a defendant to whom the section relates is entitled to the benefit of the section unless the evidence shows that it was accompanied with an intention on his part other than that of discharging, or promoting the discharge of the public duty, or of exercising, or promoting the exercise, of the authority or power for a public purpose to which it apparently relates. (S. Scammell and Nephew Limited v. Hurley, (1928) 1 K.B. 419 C.A.).
In this case, the defendant's employer, the Epe District Council, apparently had authority under its instrument to clear the foreshore, the water-way and landing route at Epe. The contrary was at no stage asserted for the plaintiff, nor was any point made as to the lack of evidence as to such authority. The defendant, therefore, presumably, caused the plaintiff's canoe to be removed from the water-way in exercise of that authority. Had the canoe been damaged in the course of that removal, the defendant's negligence would have been subject to the benefit of the section in the absence of evidence that it occurred from an improper motive on his part. The deliberate breaking up of the canoe after its removal, however, cannot be regarded in my Judgment as either necessary or incidental to the duty imposed upon the defendant by his employer for the purpose of exercising its authority to clear the foreshore and landing route, in the absence of evidence to the contrary. Evidence to the contrary, there was none. The result is that the defendant's wrongful act cannot be regarded as apparently having been done in any of the circumstances entitling him to the benefit of the section, and the question of the motive, whether it was bona fide or mala fide does not arise.
The appeal will therefore be dismissed.