CORAM

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PARTIES

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MALLAM NURAEN TAIWO HASSAN DINDI APPELLANTS

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EKESON BROTHERS TRANSPORT COMPANY LIMITED & ANOR RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant sued the Respondents before the the High Court of the Federal Capital Territory, for the assault and battery committed by the 2nd Respondent against the Appellant. The 2nd Respondent having left his employment after reporting the incident to the Respondent’s manager, was not present for the trial. At the end of the trial, the lower court held that the 1st Respondent was not vicariously liable for the act of the 2nd Respondent as the clause 16 of the contract of employment forbade him from engaging in a fight or open quarrel during duty hours. Aggrieved with this decision, the Appellant filed a Notice of Appeal against the judgment of the lower Court and the Notice of Appeal contains 2 grounds of appeal. But the Appellant later withdrew the appeal against the 2nd respondent, Jude Eze. Both sides filed, exchanged and adopted their respective briefs

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HELD

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Appeal Allowed

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ISSUES

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Was the learned trial Judge right to hold that the 1st Respondent was not vicariously liable for the acts of the 2nd defendant who was its servant in its employment when he carried out the alleged acts in the course of his official duty. Was the learned trial Judge right to excuse the 1st Respondent from liability on the basis of Exhibit D1 when contract of employment Clause 16 and 11 (IX) relied upon merely advised and warned its employees from engaging in fight and molesting passengers without clearly excusing/absolving the company from liability in event of contravention.

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RATIONES DECIDENDI

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LAW OF TORT

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VICARIOUS LIABILITY – PRINCIPLE OF VICARIOUS LIABILITY
“The general principle of law with respect to vicarious liability is that once a master employs a servant to do something for him, he is responsible for the servants conduct as if it were his own. If the servant commits a tort in the course of his employment, then, the master is a tortfeasor as well as the servant. The master is answerable for every wrong of the servant once it is shown to have been committed in the course of his employment.
In such a circumstance, since the servant and the master are viewed in law as joint tortfeasors, a plaintiff is at liberty to choose his victim. He may decide to sue either of the master and servant separately, or both of them jointly. See the Supreme Court decision in Ifeanyi Chukwu (Osondu) Limited Vs. Solel Boneh Limited (2000) 5 NWLR (Pt. 656) 322 (also reported in [2000] FWLR (Pt. 27) 2046]; SPDC (Nigeria) Plc. Vs. Dino [2007] 2 NWLR (Pt. 1019) 438.

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LAW OF TORT, LABOUR LAW

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VICARIOUS LIABILITY – BASIS ON WHICH AN EMPLOYER CAN ESCAPE LIABILITY FROM ACTS OF HIS EMPLOYEE
“However, the position of the law is that in order for an employer to escape liability or excuse himself from the acts of his employee, the onus is on him to prove that at the material period, the said employee was on a frolic of his own. The position was captured succinctly in Tecno Mechanical (Nigeria) Limited Vs. Ogunba [2000] 1 NWLR (Pt. 639) 150, where it was held as follows:
The principle is that once (i) there exists a master and servant relationship between an employer and a tortfeasor and (ii) it is established that the tortfeasor committed the wrong complained of in the course of his employment, there is a rebuttable presumption of the employers vicarious liability. In such a situation, the onus is on the employer to prove that the alleged wrong was committed by the tortfeasor not in the course of his employment but that it was committed while on a frolic of his own. See Francis Osabe Eseigbe Vs. Agholor [1993] 9 NWLR (Pt. 316) 128 at 144

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LAW OF TORT, PRACTICE AND PROCEDURE, LABOUR LAW

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VICARIOUS LIABILITY – GROUND ON WHICH AN EMPLOYER WOULD BE VICARIOUSLY LIABLE FOR THE WRONGFUL ACT OF A SERVANT DONE IN THE COURSE OF HIS EMPLOYMENT
But then, in Afribank (Nigeria) Plc. Vs. Adigun[2009] 11 NWLR (Pt. 1152) 329 @ 349, cited by Mr. Adeniyi, it was held that the acts of an employee would be deemed to be done in the course of his employment for which the employer shall be held liable, if it is a wrongful act authorized by the employer or a wrongful and unauthorized mode of doing some act authorized by the employer.
In Awache Vs. Chime [1990) 5 NWLR (Pt. 150) 302 @ 309, the Court of Appeal, per Uwaifo, JCA (as he then was), held as follows:
…The wrongful act of a servant is deemed to be done in the course of his employment if what happened was merely a wrongful and unauthorized or prohibited mode of performing some duty the servant was employed to do.
In the present case, the action of the 2nd Defendant, has been specifically prohibited and unauthorized by his employers, the 1st Defendant. The authorities have held that even where an employer expressly forbids the act, as in the instant case, it may still be vicariously liable if it is shown that nonetheless the act was done in the scope of the employment or for the purpose and advancement of the employers business. In other words, before an employer can be held vicariously liable for the actions of his employee, it must be established that the acts are done in furtherance of the course and purpose of the employers business. See Ruddiman & Company Vs. Smith [1889] 60 LT 708; Rose Vs. Plenty [1976] 1 All ER 97. –

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APPEAL, PRACTICE AND PROCEDURE

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APPEAL – EFFECT OF FAILURE TO APPEAL AGAINST THE FINDINGS OF COURT
“The respondents did not cross-appeal against these findings. By not appealing these findings, all parties herein accepted them as correct, conclusive and binding on them. See Iyoho V Effiong . Having accepted the findings as correct, the 1st respondent cannot competently and validly argue that the battery of the appellant by the 2nd respondent was not in the course of the 2nd respondents employment with the 1st respondent. See Dabup V Kolo. –

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LAW OF TORT, PRACTICE AND PROCEDURE, LABOUR LAW, LAW OF CONTRACT

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VICARIOUS LIABILITY – FEATURES OF VICARIOUS LIABILITY
“A distinguishing feature of this present case is that the unauthorised and wrongful actions of an employee done in the course of his employment has not only injured a third party, but has also resulted in a breach of a duty of care owed by his employer to the third party under a contract of carriage between the employer and the third party. So the vicarious liability of the 1st respondent arises not only from the fact that the 2nd respondent is its employee but also from the fact of the contract of carriage and the breach of the duty of care under the contract. Another distinguishing feature that makes it imperative to hold the 1st respondent vicariously liable for its driver’s actions is the fact that the 1st respondents said driver can no longer be found or traced after the incident. –

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LAW OF TORT, WORDS AND PHRASES

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DOCTRINE OF VICARIOUS LIABILITY – MEANING OF THE DOCTRINE OF VICARIOUS LIABILITY
“Vicarious Liability is a doctrine of law imposing liability on a person for the actionable conduct of another based on the relationship between two persons such as in Master/Servant or Principal/Agent relationship. This principle of law is a variant of the general rule that everyone is personally responsible and liable for his own faults. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty of care, and that the party complaining should be able to prove that he has suffered damage in consequence of the breach of that duty. See Orhue V. NEPA (1998) 7 NWLR (Pt. 557) 187.-

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Not Available|

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