IN THE HIGH COURT OF LAGOS STATE
ON MONDAY, THE 12TH DAY OF JANUARY 1970
F.O. DAWODU ........................................................ PLAINTIFF
SQUIEL AGBONAHO & ORS ................................................... DEFENDANTS
BEFORE: George, J.
Action for Damages for Negligence
The plaintiff sued the defendants jointly and severally for the sum of £750 being special and general damages for negligence.
The 2nd defendant, a driver of the 3rd defendant company was authorised by the 3rd defendant company to carry empty bottles in a lorry from Benin to Lagos.
When the 2nd defendant arrived at the Lagos Breweries where the bottles were to be deposited, he saw that there was a long queue. He thereupon took the ignition key and left the lorry and went for his meals, asking the 1st defendant to take care of the goods in the lorry and not to manoeuvre it. When it was the turn of the lorry to move forward, the 2nd defendant had not arrived.
The 1st defendant thereupon got into the lorry and tried to manoeuvre it. In the process, the lorry moved backward and collided with the plaintiff's lorry. The plaintiff thereupon brought this action.
(1) Where the owner of a vehicle allows it to be on the highway, there is a presumption that it is being driven by his servant or agent. This presumption may be rebutted by the evidence. Whether it is rebutted or not is a question of fact. But the plaintiff, in order to succeed, must show that the injury was due to the negligence of the servant of the owner acting within the scope of his employment.
(2) Where the act which was done by a person who ought not to have done it, was done by reason of any act of negligence on the part of the person authorised to do the act, then it must be proved that the person who did the act was the agent of the master in doing it; but if the facts are that the servant was authorised to do the act and was present at the doing of it, and the question arises as to whether the accident was due to his negligence in not performing his duty or controlling the driver or whether he having discharged that duty, it arose from the negligence of the man who was driving, then it is a question of fact for the jury.
(3) In this case, the 1st defendant was not an employee of the 3rd defendant company. He was a person allowed to be on the lorry at the pleasure of the 2nd defendant to whom he was apprenticed. That fact cannot make the 3rd defendant company vicariously liable for the tort committed by the 1st defendant. There was evidence that the 2nd defendant was not present at the time of the accident and, in fact, he took away the ignition key. Consequently, the 2nd defendant was not negligent in leaving the vehicle in the queue, and so the plaintiff could not succeed against the 2nd and 3rd defendants.
Judgment for the Plaintiff against the 1st Defendant: Claim Against 2nd and 3rd Defendants dismissed.
Cases referred to:
Ogunmuyiwa v. Solanke (1956) 1 F.S.C. 53.
Ilkiw v. Samuel & ors. (1963) 2 A.E.R.p. 880.
Beard v. London General Omnibus Company (1900) 2 Q.B.p.530.
Rickettes v. Tilling Limited (1915) 1 K.B. p. 644.
Englehart v. Farrant (1897) 1.Q.B. 240
ACTION FOR DAMAGES FOR NEGLIGENCE
Salisu, for the Plaintiff
Debo Akande, for the 3rd Defendant.
George, J.:-In this case, the plaintiff claims against the defendants jointly and severally the sum of £750 being Special and General damages for negligence committed by the defendants against the plaintiff in Lagos on 19th February, 1968.
In his Statement of Claim, the plaintiff averred that the 1st defendant was an apprentice driver of the 2nd defendant and that the 2nd defendant was a driver of Lorry No. MB 840 which collided with the plaintiff's lorry No. LN 2474. It is not disputed by the defendants that the 2nd defendant was the driver of lorry No. MB 840, but the 3rd defendant specifically denied the allegation that the 1st defendant was an apprentice driver of the 2nd defendant.
Now the facts giving rise to the plaintiff's claim are as follows:-
The defendant company authorised the 2nd defendant to carry empty bottles which were loaded in their lorry No. MB 840 from Benin to Lagos. The lorry arrived in Lagos with the 1st and 2nd defendants and went up to Iganmu Breweries to discharge the load. There, they found that there was a queue of lorries and each lorry moved forward when it came to its turn. The fleet of lorries in the queue were all discharging empty bottles. The 2nd defendant who travelled all the way from Benin to Lagos, apparently feeling uneasy, went home to have his meals with his wife, and left the 1st defendant in charge of the lorry. When it came to the turn of lorry No. MB 840 to move forward, the 2nd defendant had still not arrived.
The 1st defendant, therefore, went inside the lorry and tried to manoeuvre it. In the process, the lorry moved backwards and collided with the plaintiff's lorry No. LN 2474 and damaged the whole of the front part. The plaintiff, therefore, claims as stated above.
In paragraph 11 of the Statement of Claim, the plaintiff averred that the 1st defendant was seen to have the ignition key in his possession when the 2nd defendant left for his meals.
This Statement was denied by the 3rd defendant in his Statement of Defence. The 3rd defendant averred that contrary to Paragraph 11 of the Statement of Claim, the 1st defendant started the engine with a nail and the ignition key was never given to him.
I, therefore, have to decide among other things whether in actual fact the 1st defendant had the ignition key with him at the time he manoeuvred the lorry.
Now, the plaintiff gave evidence and called five witnesses. The evidence of the 1st witness is to the effect that on the 19th of February, 1968, he and the driver of LN 2474 went to Iganmu in lorry No. LN 2474 to discharge empty bottles. When they got there, there was a queue of lorries and each lorry moved forward one by one as the cargo in the lorries in front of them was discharged. At that time, the vehicle in front of them was MB 840 with the letters J.B.S. inscribed on its sides. He was an apprentice driver and knew the 1st defendant also to be an apprentice driver. He also knew the 2nd defendant the driver of vehicle No. MB 840. When the vehicles were stationary, he alighted from his vehicle and the 1st defendant also alighted from lorry No. MB 840. The 1st defendant informed him that he was assisting his master to drive the vehicle because they came from a long distance. At that time, the driver of lorry No. MB 840, that is, the 2nd defendant, came towards them and told the 1st defendant to take care of the lorry. After the 2nd defendant had gone, some of the vehicles in front of MB 840 had started to move, so the 1st defendant went inside the lorry (i.e., MB 840) and switched on the ignition key and operated it.
The lorry suddenly moved back and collided with LN 2474. After the accident, the other vehicles by-passed LN 2474 and went to the Brewery to discharge their goods.
The 2nd Witness P.C. 130 attached to the Security Department, Lion Building, testified that on the 19th of February, he was patrolling around the Nigerian Brewery when he heard the crash of a lorry. He went to the scene and saw a certain man who was later known to him as Daniel Agbonaho (that is the 1st defendant). He testified further that the 1st defendant told him that he was trying to reverse his master's vehicle and that he did not know that his master had put the gear of the lorry in the reverse position. He wanted to move forward but the vehicle suddenly moved backwards. He went further to say, and this is very vital to the case:-
"I told him to give me the ignition key. He did not produce the key but showed me a nail which he used to ignite the vehicle."
He then handed over the 1st defendant to the Traffic Police, PW3 who took the sketch of the scene of accident and produced the Statement made by the 2nd defendant. In the Statement exhibit D, the 2nd defendant said that when he was going away from Iganmu Breweries he took with him the ignition key of vehicle No. MB 840 and he left his motor boy that is the 1st defendant in care of the vehicle.
The PW4 gave evidence concerning damages to the vehicle LN 2474.
The 5th witness, a dealer in motor parts, gave evidence concerning the spare parts bought by the plaintiff which amounted in value to £477. 2s. 0d.
The 3rd defendant called only one witness. He was a representative of the Firm of J.A. Bazuanye trading as J.B. & Sons.
The material part of his evidence is that the Firm engaged only drivers and not "motor boys." He was aware of the fact that the 2nd defendant engaged a "motor boy" to be on the goods and to inform him whenever there was any lorry or vehicle coming behind his lorry. This arrangement was done with all the defendants fleet of lorries.
At the trial of the action, the 1st and 2nd defendants did not give evidence nor do they call any witnesses.
I, therefore, have to decide from the evidence adduced before me, and on the issues joined in the pleadings, whether the 3rd defendant was vicariously liable for the negligence, if any, of the 1st defendant.
Counsel for the plaintiff and the defendant addressed me at length on the issues involved in this case. It was the contention of Counsel for the 3rd defendant that the 1st defendant was not an employee of the 3rd defendant and as such, his negligence could not be imputed to him
Counsel for the plaintiff on the other hand submitted that since the 3rd defendant was the owner of the vehicle, and he allowed it to be on the road, he was vicariously liable for the negligence of the driver. He relied in this contention on the cases of Ogunmuyiwa v. Solanke (1956) 1 F.S.C. 53 and Ilkiw v. Samuel & ors. (1963) 2 A.E.R. Page 880.
Ogunmuyiwa Vs Solanke shows that where the owner of a vehicle allows it to be on the high-way, there is a presumption that it is being driven by his servant or agent. Beyond that it does not go. That this is the Law is unquestionable. It is a decision of the Federal Supreme Court and is supported by Ilkiw Vs Samuel.
Ilkiw's case also deals with other aspects of vicarious liability in the Law of Tort to which I shall refer later on.
Counsel for the 3rd defendant relied on Beard Vs London General Omnibus Company, (1990) 2 Q.B. page 530 and Rickettes Vs Tilling Limited 1915, 1 K.B. page 644.
In Beard's case, at the end of a journey the conductor of an Omnibus belonging to the defendant, in the absence of the driver and apparently for the purpose of turning the Omnibus in the right direction for the next journey, drove it through some streets at a considerable pace, and while doing so, negligently ran into and injured the plaintiff.
The plaintiff claimed damages, but it was held by the Court of Appeal that the plaintiff had not discharged himself from the burden cast upon him of showing that the injury was due to the negligence of the servant of the defendant acting within the scope of his employment, and that the defendants were entitled to judgment.
Smith, L.J., in the course of his judgment said: "My brother Romer in the course of the argument put the illustration of an Omnibus being driven by a stranger to the defendant. In such a case, it would be impossible to say that the proof that the Omnibus was being driven by a stranger would raise any case against the company. The plaintiff must in such a case have gone on to show that the stranger was driving with the consent or approval of the company, or on such an emergency that their consent was implied."
At page 534 of the same judgment, Romer, L.J., said: "If one sees in the street of London an Omnibus admittedly belonging to the defendant company, driven in the ordinary way by a person who appears to be a driver, the presumption is that he is authorised by the company. That presumption may be removed. In this case, it was rebutted by the plaintiff's evidence for it was proved that the de facto driver was not a person authorised to drive but the person authorised to act as a conductor."
It is thus clear that in cases of this nature, although the plaintiff is entitled, if he so desires, to rely on the presumption that the driver of a vehicle seen on the road is an employee of the owner, that presumption may be rebutted by the evidence. Whether this presumption has been rebutted by the evidence led in this case is a matter of fact to which I shall advert hereafter.
The Court of Appeal in the case of Rickettes Vs Tilling (1915) 1 K.B. page 644 distinguished Beard's case on the ground that since the Omnibus was driven by the conductor in the presence of the driver there was evidence of negligence on the part of the driver in allowing the Omnibus to be negligently driven. After distinguishing Beard's case, the distinction being the presence or absence of the driver at the time the accident occurred, and reviewing Englehart Vs Farrant, Buckley, L.J., said:-
"What I get from these two cases, therefore, is this: That if, as in Beard Vs. London General Omnibus Company, the act which was done by a person who ought not to have done it, was not done by reason of any act of negligence on the part of the person authorised to do the act, then it must be proved that the person who did the act was the agent of the master in doing it; but if the facts are that the servant was authorised to do the act and was present at the doing of it and the question arises as to whether the accident was due to his negligence in not performing his duty or controlling the driver or whether he having discharged that duty it arose from the negligence of the man who was driving, then that is a question of fact for the Jury."
Now in this case, there is evidence before me that the driver of the lorry was not present at the time the accident occurred. In fact, the plaintiff's own witness rebutted the presumption in the plaintiff's favour by saying that the 1st defendant could not produce the ignition key of the lorry when asked to do so. This piece of evidence was given by the 2nd plaintiff's witness, P.C. 130, an independent witness who arrived at the scene of accident almost immediately after it occurred. His evidence cannot be brushed aside lightly. When read with the evidence of the only witness called for the defence it becomes quite clear that the 1st defendant manoeuvred the lorry without using the ignition key. It is, therefore, my finding that the 2nd defendant when leaving the lorry for his meals simply asked the 1st defendant to take care of the goods in the lorry and not to manoeuvre it.
It follows from my finding of facts in this case that the 1st defendant was not an employee of the 3rd defendant company. He is, as far as this company is concerned, a person allowed to be on the lorry at the pleasure of the 2nd defendant to whom he was apprenticed. But that fact cannot make the company vicariously liable for the Tort committed by the 1st defendant. The authorities show that what the plaintiff must prove in this case is that the defendant negligently left the vehicle to the care and control of the 1st defendant. The real issue is whether the defendant, in leaving the vehicle in the queue was negligent and if so, was that act the "effective cause" of the accident. I do not think so. There is evidence before me that after the accident other vehicles by-passed the two lorries in collision. If that is so, the 1st defendant, in manoeuvring the lorry was not an agent of necessity as other lorries could have passed by MB 840 in which case there would have been no accident. The question of agency of necessity, I must say was not raised before me, but I only mention it in determining an issue of facts.
In the Ilkiw's case referred to above, the lorry driver had strict instructions from his employers not to allow the lorry to be driven by anybody else; notwithstanding, and without making any enquiry as to the workman's competence he allowed a workman who was not the servant of his employers, but had been engaged on loading, to move the lorry, showing him how to start the engine and remaining in the back of the lorry while it was being driven. The workman had never driven a lorry before and had not a driving licence and though he thought himself competent to move the lorry, he was not competent to manoeuvre a heavily loaded vehicle in the confined space.
The Court of Appeal in finding the employers liable held that the liability of the driver's employers was due to the negligence of the driver in allowing the workman to drive without making enquiries as to his ability.
It does not in my view support the plaintiff's case and it is distinguishable from the case under consideration because in the instant case, unlike the Ilkiw's case the driver did not authorise the 1st defendant to drive the lorry nor was he present at the scene when the lorry was being driven by the 1st defendant.
The plaintiff cannot, therefore, succeed in his claim either on the facts or on the Law. The plaintiff's claim against the 2nd and 3rd defendants is, therefore, dismissed.
With regard to the 1st defendant who was absent, I do not think that anybody disputes his liability. There will, therefore, be judgment for the plaintiff against the 1st defendant for the sum of £500 Special damages and £100 General damages with cost assessed at 50 guineas.
The plaintiff will pay costs of the 2nd and 3rd defendants assessed at 35 guineas.
Judgment for the Plaintiff against the 1st Defendant: Claim against the 2nd and 3rd Defendants dismissed.