IFEANYICHUKWU (OSONDU) CO LTD (PLAINTIFF/APPELLANT)
v.
SOLEH BONEH (NIGERIA) LTD (DEFENDANT/RESPONDENT)
(2000) All N.L.R. 604
Division: Supreme Court of Nigeria
Date of Judgment: 10 March 2000
Case Number: SC 74/1994
Before: Salihu Modibbo Alfa Belgore; Michael Ekundayo Ogundare; Uthman Mohammed; Sylvester Umaru Onu; Anthony Ikechukwu Iguh, JJSC
ISSUE
Whether the failure by the appellant to join the respondent's driver as a defendant in the proceedings, where it is alleged that the master is vicariously liable, is fatal to the appellant's case?
FACTS
In May 1981 the appellant's vehicle was involved in a collision with a vehicle belonging to the respondent and driven by his employee in the scope of his employment. The appellant originally instituted action against both the respondent and the driver, but after encountering difficulties with the driver's wherabouts for purposes of serving the writ on account of the driver having jumped bail during a criminal trial against him the action against him and his name was struck of the proceedings, the appellant withdrew that action and in February 1984 commenced proceedings afresh against the respondent only.
It was the respondent's defence to the action that the appellant had failed to show a cause of action: it was not possible for an employer to be held vicariously liable for the actions of his employee in the absence of proof that the employee had been negligent and in the absence of the employee, in this case the driver of the vehicle, that could not be proved.
The appellant based his claim on the doctrine of res ipsa loquitur, for which he tendered evidence showing negligent driving by the driver of the respondent's vehicle, which, in accordance with the principles of vicarious liability, on the other hand rendered the employer liable.
The trial court held that the non-joinder of the respondent's driver was a fatal flaw in the appellant's case and dismissed the claim.
The Court of Appeal also adjudicated in the respondent's favour, holding that the action had been void ab initio by reason of the non-joinder of the respondent's driver and that, in the absence of the servant, the vicarious liability of the master could not arise.
The appellant now appealed to the Supreme Court, maintaining that in tort, a master could vicariously be held liable for his servant's wrongdoings, even if the commission of the tort had not been proved against the servant personally. The servant's liability, thus, could be proved with or without joining him. Furthermore, the appellant contended that both master and servant are joint tortfeasors and a party taking action in tort could sue either of them or both. The respondent, however, never denied that the driver had acted in the course of his employment at the time of the collision. The appellant appealed further to the Supreme Court.
[Editor's note: Although the appellant's appeal was dismissed by this Court, it was not dismissed on the basis that he had failed to join the respondent's driver, which formed the crux of the issue before the court. The appeal was dismissed because the appellant had failed to prove negligence on the part of the driver at the trial court, and not because he had failed to join the driver. Thus, although the appellant succeeded on the issue of joinder in a claim based on vicarious liability at tort, that victory was indeed hollow or pyrrhic: negligence could not be visited upon the master because it had not been proved against the servant.]
HELD
1. On the requirements for vicarious liability
The elements that needed to be proved were: (1) the liability of the wrongdoer (servant); (2) the relationship of master and servant; and (3) that the servant (wrongdoer) acted in the course of his employment with the master. The last two requirements were not in issue. The appellant failed to prove the first. Per Ogundare, JSC, at page 611.
2. On a party's non-joinder of an employee having acted in the course of his employment, in a suit against his employer
Proceedings may only be regarded a nullity as a result of non-jonder where the party not joined is a "necessary party" in that he may be affected by the outcome of the proceedings. The driver was not a necessary party. Per Ogundare JSC, at page 611.
The driver's presence was not essential to the appellant's case; the court could adjudicate upon all the questions in issue in his absence. Per Ogundare, JSC, at page 611.
The liability of the servant needs first to be established on the facts before the claim against the master can succeed. This, however, did not mean that in cases of vicarious liability the servant need first be successfully sued before his master's liability in tort arose. Imagine the absurdity of this if the servant had died in the accident giving rise to the action. The claimant would have enjoyed no recourse against his employer, even if he had been negligent. Per Ogundare, JSC, at page 611.
Since a master and servant are considered to be joint tortfeasors, either or both can be sued for the damages caused by one of them to the complainant. The appellant was therefore entitled to sue only the respondent and the driver's absence did not mean that he could not do so. The Court of Appeal had erred in holding that the respondent could not be held liable because his employee had not be joined. Per Mohammed, JSC, at page 627.
In cases of negligence based on vicarious liability, the liability of the servant is of a purely evidential nature. For the court to establish such negligence it makes no difference whether or not the driver has been joined in the suit. Per Iguh, JSC, at page 637.
3. On negligence
Judging by the evidence placed before the trial Judge, and his findings of fact made as a result, there is no reason to believe that the trial court had come to the wrong conclusion in its decision that the appellant had failed to prove the driver's negligence. Per Ogundare, JSC, at page 611.
AO Okeaya-Inneh for the appellant.
AO Alegeh for the respondent.
The following cases were referred to in this judgment:
Nigeria
Aiyetan v Nifor (1987) 3 NWLR (Part 59) 148
Akibu v Opaleye (1974) 1 All NLR 344
Alhaji v Egbe (1986) 1 NWLR (Part 16) 364
Ayodele James v Mid-Motors (1978) 11-12 SC 31
Benson v Otubor (1975) 3 SC 9; (1975) NSCC 49
Boyle v Kodak (1969) 1 WLR 661
Chukuka Ossai Nwabuekei v Francis Iwenjiwe & others (1978) 2 SC 61
Consortium Steel Plant Aladja v Mrs Angelika Akindejoye & others CA/B/128/87 of 3 November 1989 (unreported)
Edok-eter Mandilas Ltd Ale (1985) 3 NWLR (Part 11) 43
Ekpere v Aforije (1972) 1 All NLR (Part 1) 220, (1972) ANLR 224
Fatoyinbo v Williams (1956) 1 FSC 8
Green v Green (1987) 3 NWLR (Part 61) 480
Laibru Ltd v Building & Civil Engineering Contractor (1962) 2 SC NLR 118
Lawrence Adebola Oredoyin & others v Chief Akala Arowolo (1989) 4 NWLR (Part 114) 172
Lennard's Carrying Company v Asiatic Petroleum Ltd [1914-15] All ER 280
Madukolu & others v Nkemdilim (1962) 1 ANLR 587
Management Enterprises Ltd v Otusanya (1987) 2 NWLR (Part 55) 179
Odunayo v The State (1972) 8-9 SC 290
Ogunsan v Iwuagu (1968) 2 All NLR 124
Okoye v N.C.F.C. Ltd (1991) 6 NWLR (Part 199)
Okoye v Nigerian Cons. & Furniture Co Ltd (1991) 6 NWLR 501
Peenock Investment Ltd v Hotel Presidential (1982) 12 SC 1
Thank Brothers Ltd v Landed Properties Ltd & another (1962) 2 All NLR 22
Uku v Okumagba (1974) 1 All NLR (Part 1) 475
Umudje v Awajene (1975) 9-11 SC 115
Foreign
Broom v Morgan (1953) 1 QB 597
Cassel & Co v Broome [1972] 1 All ER 801
Cutlar v Phill (1962) 2 QB 292
Dougherty v Chandler (1946) SR (NSW) 370
Duck v Mayer (1899) 2 QB 511
Dyer v Munday (1895) 1 QB 742
Hern v Nichols (c.1700), 1 Salk 289
Hewitt v Bonvit & another (1940) 1 KB 188
Houldsworth v City of Glasgow Bank [1874-1880] All ER
I.C.I Ltd v Shatwell (1965) AC 656
Jones v Manchester Corporation (1952) 2 QB 852
Kilboy v South-Eastern Fire Area Joint Committee (1952) SC 280
Kunstler v Kunstler [1969] 2 All ER 673
Launchbury v Morgans (1971) 2 QB 243
Launchbury v Morgans (1973) AC 127
Performing Rights Society Ltd v London Theatre of Varieties Ltd (1924) AC 1
Rose v Plenty [1976] 1 All ER 99
Semtex Ltd v Gladstone (1954) 1 WLR 947
Staveley Iron & Chemical Co Ltd v Jones (1956) AC 627
The Koursk (1924) P 140
Thomas v Thomas (1947) AC 484
Treacy v Robinson & Son (1937) 1R 255
Turbervill v Stamp (1697) 1 Ld Raym 264
Young v Edward Box & Co Ltd (1951) TLR 789
The following statutes were referred to in this judgment:
Motor Vehicles (Thirty Party Insurance) Act Cap. 126 Laws of the Federation of Nigeria: S 3(1)
Supreme Court Act Cap. 424 Laws of the Federation of Nigeria 1990: S 22
Torts Law Cap. 164 Laws of Bendel State of Nigeria 1976: S 1; 14
The following rules were referred to in this judgment:
Defunct Bendel State High Court (Civil Procedure) Rules: Order 7 rule 10(1) High Court (Civil Procedure) Rules Cap. 65 Laws of Bendel State of Nigeria 1976: Order 7 rule 10
The following books were referred to in this judgment:
Halbury's Laws of England (4ed) Vol. 9 paragraph 1374
Law of Torts (13ed) Salmond at 70
Law of Torts (17ed) Salmond paragraph 167 at 442 at 443
Precedents of Pleadings (12ed) Bullen, Leake and Jacobs at 685
Torts (14ed) Clerk & Lindsell paragraph 237 at 238
Torts (7ed) Clerk & Lindsell at 59
Ogundare, JSC (Delivered the Leading Judgment):- The main question arising for determination in this appeal is a question of law framed by the parties, as follows:-
"Whether the Court of Appeal was right in holding that failure (by the appellant) to join the respondent's driver as a defendant in the present proceedings was fatal to the appellant's case." (Words in brackets mine.)
Following an accident that occurred at Abudu in Bendel State (now Edo State) on 29 May 1981, the plaintiff (who is appellant in this appeal) sued the defendant (now respondent) claiming N64,521 damages it suffered as a result.
The accident involved the two vehicles of the parties. The plaintiff's vehicle Reg No IM1673G driven by its driver was a passenger coach; that of the defendant, Reg No OY9065AD was a trailer and was driven by one Mosudi Akanbi said to be the defendant's driver. The action was instituted against Mosudi Akanbi and the defendant. Following difficulties encountered in getting Mosudi Akanbi to be served with the Writ of Summons, the action was withdrawn against him and his name was struck off the proceedings.
Pleadings were filed and exchanged and, by leave of court, amended. By paragraph 15 of its amended Statement of Defence, the defendant pleaded thus:-
"15. Further, or in the alternative to paragraphs 5 to 8 and 10 to 15 hereinabove, defendant will at or before the trial contend on a point of law that even if all the averments in the amended Statement of Claim are admitted (which is denied) the amended Statement of Claim is bad in law in that it discloses no cause of action against the defendant.
Particulars
(i) The Writ of Summons originating this action was taken out against Mosudi Akanbi (driver of defendant's vehicle) as first defendant and the present defendant as second defendant;
(ii) On the 24 February 1984 the plaintiff discontinued the action as against the said first defendant;
(iii) The second defendant's (now the sole defendant on record) liability is vicarious, by operation of law and cannot be established when plaintiff has discontinued the action against the first defendant who is primarily liable;
(iv) The original Writ of Summons is inconsistent with the amended Statement of Claim."
The case proceeded to trial at the end of which the learned trial Judge, in a reserved judgment, found:-
1. "that I agree entirely with Mr Okonjo that Mosudi Akande (sic) is a necessary party whose non-joinder is fatal to the plaintiff's case . . . I hold that Mosudi Akande not being a party in this case I cannot pronounce any verdict against him for which the defendant company can be held vicariously liable. On this ground the plaintiff's action cannot succeed."
2. "that even if Mosudi Akanbi, the driver of the trailer were a party to this action the plaintiff would still have lost as it failed to prove any negligence against him";
3. "that there is no nexus between the plaintiff's vehicle Reg No IM1673G and Exhibits 'B', 'C', 'D', 'E', 'F', 'G' & 'H' (tendered in support of the claim for damages). The said exhibits are not unequivocally referable to IM1673G.
4. "that the plaintiff, in the instant case, having tendered evidence of negligence on the part of the driver of OY9065AD cannot rely on the doctrine of res ipsa loquitur to sustain his claims."
He dismissed plaintiff's claims.
The plaintiff appealed to the Court of Appeal (Benin Division) upon two original and three additional grounds of appeal. The plaintiff in its written brief of argument in that court set out three issues for the court to consider, to wit:-
(1) Whether failure to join the respondent's driver as a defendant in this action against his master where it is alleged that the master is vicariously liable is fatal to the appellant's case.
(2) Whether having regard to the evidence adduced by both parties the learned trial Judge was right to dismiss the appellant's claim.
(3) Whether an appellate court seized of the matter is competent to evaluate the whole evidence and award damages claimed in the lower court."
The Court of Appeal, in the lead judgment of Ogebe, JCA with which the other Justices agreed, addressed itself only to Issue (1) above and adjudged:-
"From all these authorities which I respectfully follow, it is clear that in an action for negligence as in the present case if the principal actor (the offending driver) is not joined as a party and his liability established there can be no question of finding the master liable vicariously. In other words, once the driver is not joined in the action the action is incompetent ab initio and a trial court should not waste its time going into the merits of the case." (My emphasis.)
Akpabio, JCA in his concurring judgment, wrote:-
"I think that it must be repeated for emphasis that regardless of how gross the negligence of a driver might be, the liability of his master, which is vicarious, cannot arise unless and until the servant (the principal tortfeasor) who had driven the vehicle has been established in the court. The same goes for any insurance company who may have underwritten the liability. In the instant case, since the driver was never made a party to the suit, the liability of his master can never arise." (My emphasis.)
The appeal was dismissed without any pron