1. LAGOS CITY COUNCIL CARTAKER COMMITTEE
2. RAUFU ADETONA (DEFENDANTS)
(1971) All N.L.R. 643
Division: High Court of Lagos
Date of Judgment: 26th November, 1971
Case Number: SUIT NO. LD/207/70
Before: George, J.
Action for Negligence.
(1) Although section 141 of the Lagos Local Govt. Act gives the plaintiff a power to provide any form of transport service but not a duty, yet the Act itself regards it as an additional duty when the power is exercised because it begins by saying "In addition to the duties etc." In the view of the court this Section means on its true construction that once the Council begins to provide transport services under the Act, anybody employed in the performance of transport service to the Council is performing a public duty unless the transport service was based on a contract between the Council and a private person.
(2) Since the transport facility is provided by the City Council to the Public at large irrespective of the personality of the user, the City Council is acting in the exercise of a public duty. Besides, the driver was acting not only in the pursuance of a public duty but also a public authority.
(3) In the view of the court a distinction between a power and an Authority was a distinction without a difference.
Preliminary Objection sustained: Action Struck out.
Cases referred to:
Aliu Bakare v. L.C.C. and S.A. Ogunmodede, (1965) LL.R. 151.
Obiefuna v. Okoye, (1964) N.M.L.R. 39.
Bradford Corporation v. Myers, (1916) A.C. 242.
Act referred to:
Lagos Local Govt. Act ss.141, 142.
PRELIMINARY OBJECTION. Action for Negligence.
SUIT NO. LD/207/70.
Folade for Chief Coker for the Plaintiff.
Branco for the Defendant.
George, J.:-The plaintiff in this case has instituted an action against the Lagos City Council Caretaker Committee and one R. Adetona, a driver in the employment of the defendant Committee for negligence. The second defendant was alleged to have driven a bus No. LG. 2105 belonging to the first defendant in a very negligent manner and the said bus collided with a private motor cycle and damaged it beyond repairs. The defendant pleaded the Public Officers Protection Act and contended that since the plaintiff did not comply with Section 2A of the Act his claim was Statute Barred. At the trial of the Action, Counsel for the defendants raised a preliminary objection based on their statement of defence and claimed Protection under Section 2A of the Act. He contended that the right of action accrued on the 6th October, 1969 but the plaintiff did not commence action until the 2nd April, 1970.
Now Section 2 of the Act reads:-
"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 such Act, 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 ..."
He cited several authorities to show that the claim was Statute Barred but I think that the two relevant decisions are Aliu Bakare v. L.C.C. and S.A. Ogunmodede 1965 L.L.R. 151 and Obiefuna v. Okoye 1964 N.M.L.R. 39. The first case is on All Fours with the one under consideration and is a decision of Adefarasin J. on appeal from a decision of the Magistrate Lagos to the High Court of Lagos.
The appellant did not give the necessary Statutory notice and the action was Barred by the provision of the Public Officers' Protection Act in that the action was not commenced within three months. The facts of the case are that the appellant took out a claim against the respondent/committee and the drive of their bus in the Magistrate's Court for damages for negligence on the part of the driver while in course of his employment. The Learned Magistrate decided that the claim was Barred by the Provision of the Act and this decision was confirmed by Adefarasin J.
In the case of Obiefuna v. Okoye 1964 N.M.L.R. 39, at page 41, Taylor J.S.C. in delivering the judgment of the Supreme Court said inter alia:-
"On the third Ground of Appeal, the facts as deposed to show quite clearly that (i) the defendant was a police officer, (ii) that on the day in question he was driving a police van, (iii) that at the material time he was performing a duty assigned to him as a police officer-a public duty, i.e. the conveying of prisoners in the black Maria from the prisons to Court and back again. We find it difficult to understand the line of argument that says that a cause of action arising out of the mode in which the defendant drove the vehicle in the performance of and in the course of the duty imposed on him is not one envisaged by the Public Officers Protection Ordinance.
Mr Coker for the plaintiff contended that the Law does not impose a duty on the L.C.C. to run a transport service but only a power and that where there is only a power, the Public Authority can not take protection under this section. He referred to Section 141 of the Lagos Local Government Act which deals with the duty of the Council and sought to distinguish it from the power conferred on the Council by Section 142.
His line of argument was that where an Act imposes or gives a Corporation a power but does not impose a duty to exercise that power; it cannot claim protection under the Public Authority's Protection Act if it has chosen to exercise that power. This distinction is based on a case of, Bradford Corporation v. Myers (1916) A.C. 242.
In that case, Lord Buck master L.C. at p. 247 said
"In other words, it is not because the Act out of which an action arises is within their power that a public authority enjoys the benefit of the statute. It is because the Act is one which is either an act, in the direct execution of a statute, or in the discharge of a public duty, or the exercise of a Public Authority. I referred these later words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all the public. It assumes that there are duties and authorities which are not public, and that in the exercise or discharge of such duties or authorities this Protection does not apply"
In this case the defendant Corporation contracted to sell and deliver a ton of coke to the plaintiff and by the negligence of their agent the coke was shot through plaintiff's shop window.
In that case the Local authorities were bound to dispose of their residual products; but there was no obligation upon them to dispose by sale still less was there any duty to dispose of them to the plaintiff.
It is not surprising that the majority of the Law Lords held "that the Act complained of was not done in the direct execution of a statute, or in the discharge of a Public authority, and that the Public Authority Protection Act afforded no defence."
It will be observed from the facts of this case that the negligence arose from a private contract between the plaintiff and the defendant, and their servant was not therefore acting in the exercise of a Public Duty but under a power hence the decision of the House of Lords.
Now Section 142 of the Lagos Local Government Act reads:
"In addition to the duties conferred upon the Council by Section 141, the Council shall have power;
(8) With the approval of the Government to provide any form of transport service"
It was contended strenuously by the Counsel for the plaintiff that this section of the Act gives the plaintiff a power to provide any form of Transport service but not a duty, but the act itself regards it as an additional duty once the power is exercised, because it begins by saying; "In addition to the duties etc." In my view, this section means on its true construction that once the Council begins to provide Transport services under the Act, anybody employed in the performance of transport Service to the Council is performing a Public duty unless the transport service was based on a contract between the Council and a private person.
In my view since the Transport facility is provided by the City Council to the public at large irrespective of the personality of the user, the City Council is acting in the exercise of a public duty. Besides, the driver was acting not only in the pursuance of a Public duty but also a Public Authority. In my view a distinction between a Power and an Authority is a distinction without a difference. The preliminary point in my opinion is well taken and the plaintiff's claim is therefore struck out with costs assessed
Preliminary objection sustained: Action sustained.