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Ifeanyi Chukwu (OSONDU) Ltd. v. Soleh Boneh Ltd. (2000)

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⦿ CASE SUMMARY OF:

Ifeanyi Chukwu (OSONDU) Ltd. v. Soleh Boneh Ltd. (2000) – SC

by PipAr-RAshid

⦿ LITE HOLDING

A servant do not have to be joined in an action before the master can be held vicariously liable.

⦿AREA OF LAW

Law of Torts

⦿ TAG(S)

– Vicarious liability.
– Joint tort-feasor;
– Necessary party.

⦿ PARTIES

APPELLANT
Ifeanyi Chukwu (Osondu) Ltd.

v.

RESPONDENT
Soleh Boneh Ltd.

⦿ CITATION

(2000) JELR 44103 (SC)

⦿ COURT

Supreme Court

⦿ LEAD JUDGEMENT DELIVERED BY:

Ogundare, JSC

⦿ APPEARANCES

* FOR THE APPELLANT

– Mr. A. O. Okeaya- Inneh.

* FOR THE RESPONDENT

– Mr. A. O. Alegeh.

AAA

⦿ FACT (as relating to the issues)

Following an accident that occurred at Abudu in Bendel State (now Edo State) on 29th May, 1981. The plaintiff (who is appellant in this appeal) sued the defendant (now respondent) claiming ₦64,521 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. OY 9065 AD 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 The action was withdrawn against him and his name was struck off the proceedings.

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 plaintiffs 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. IM 1673G and Exhibits B, C, D, E, F, G and H (tendered in support of the claim for damages). The said exhibits are not unequivocally referable to IM 1673G. 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. The trial judge dismissed plaintiff’s claim.

The Plaintiff appealed to the Court of Appeal. The Court of Appeal upheld the Trial Court’s decision. The Court of Appeal per Ogebe JCA stated: “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.”

Available:  Bashiru A. O. Rosenje v. Madam Salamotu Bakare (1973)

The appeal was dismissed; the plaintiff has herein appealed to the Supreme Court.

⦿ ISSUE(S)

1. 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?

 

⦿ RESOLUTION OF ISSUE(S)

[APPEAL: THE ISSUE AS REGARDS VICARIOUS LIABILITY SUCCEEDED, BUT THE APPEAL FAILED]

1. THE ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.

RULING:
i. In summary, to succeed against a master the plaintiff must 1. establish the liability of the wrongdoer, and prove 2. that the wrongdoer is a servant of the master and 3. that the wrongdoer acted in the course of his employment with the master.
ii. Can it be said that Mosudi Akanbi is a necessary party who is likely to be affected by the result of the action against the defendant? I rather think not. Nor do I think that his presence is necessary in order to enable the court “effectually and completely adjudicate upon and settle all the questions” in the action, I think the plaintiff could prove its case against the defendant without joining Mosudi Akanbi. It was for him to produce sufficient evidence to establish the liability of Mosudi Akanbi for the accident. it would be for the defendant to rebut the evidence for the plaintiff thereby defeating its claim. If anything, it was the defendant who would need the presence of Mosudi Akanbi and ought to have moved the trial court to join him or call him as a witness. I cannot see how plaintiff’s case could be defeated by the failure of the defendant to do so.

⦿ ENDING NOTE BY LEAD JUSTICE – Per Ogundare JSC

Considering that this simple case of negligence commenced in March 1983, I think justice will be met if this Court rather than send the case back to the Court below for the resolution of Issues (2) and (3) placed before it, exercise its powers under section 22 of the Supreme Court Act Cap. 424, Laws of the Federation of Nigeria, 1990 and rehear the case on the printed record. After going through the evidence led at the trial and the arguments proffered in the briefs of the parties in the Court below I am satisfied that the findings of fact made by the learned trial judge on merits of the case are adequately supported by the credible evidence before him. I have no reason to fault those findings. And in the light of those findings of fact I am of the view that plaintiffs case was rightly dismissed.

⦿ REFERENCED

⦿ SOME PROVISION(S)

The learned authors of Clerk and Lindsel on Tort 14th edition paragraph 237 at page 238 state the law thus: “Liability of master for torts of servant. Where the relationship of master and servant exists, the master is liable for the torts of the servant so long only as they are committed in the course of the servant’s employment. The nature of the tort is immaterial and the master is liable even where liability depends upon a specific state of mind and his own state of mind is innocent.”

Available:  Daniel Kekong v. The State (2017) - SC

Rule 10(1) of Order 7 of the defunct Bendel State High Court (Civil Procedure) Rules further provided as follows: “No cause or matter shall be defeated by reason of misjoinder or non-joinder of parties, and the parties may in every cause or matter deal with the matter in controversy so far as regards the rights and the interests of the parties actually before it.”

⦿ RELEVANT CASE(S)

AAAA

⦿ CASE(S) RELATED

Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179

⦿ NOTABLE DICTA

* PROCEDURAL

And that is that no cause or matter shall be defeated by reason of the non-joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. Failure to join as a party a person who ought to have been joined will not render the proceedings a nullity on ground of jurisdiction or competence of the court. It is only where a person is a necessary party in the sense that that person is likely to be affected by the result of the action that his joinder becomes essential. For the court ought to have before it such parties as would enable it to “effectually and completely adjudicate upon and settle all the questions” – Ogundare, JSC. Ifeanyi v. Boneh (2000)

Being joint tort-feasors, therefore, a plaintiff is at liberty to chose his victim; he may decide to sue either of the master and servant separately or both of them jointly – See: Salmond on The Law of Torts at page 443. Where he sues one of them separately and succeeds, this is not a bar to an action against the other who would if sued, have been liable as a joint tort-feasor in respect of the same damage. The question that may arise is as to contribution between the joint tort-feasors. – Ogundare, JSC. Ifeanyi v. Boneh (2000)

Unless in the clearest of cases, an intermediate court should endeavour to resolve all issues put before it. There are decided cases of this court which enjoin a trial court even where it has dismissed an action to consider and pronounce on the quantum of damages to be awarded in the event of the plaintiff finally succeeding. – Ogundare, JSC. Ifeanyi v. Boneh (2000)

Where a claim is brought jointly and severally against defendants it means that each party is responsible jointly with each other and also severally for the whole amount of damage caused by the tort irrespective of the extent of participation … Therefore a person injured may sue anyone of them separately for the full amount of the loss; or he may sue all of them jointly in the same action, and in this latter case the judgment so obtained against all of them may be executed in full against anyone of them. – Muhammed, JSC. Ifeanyi v. Boneh (2000)

Be it noted that persons are said to be joint tort-feasors when their separate shares in the commission of the tort are done in furtherance of a common design, See The Koursk (1924) P. 140 per Bankes L. J, citing Clerk and Lindsell on Torts, 7th Edition p, 59, where it was held that where the master and servant are joint tort-feasors., it is settled that the release of one joint tort-feasor from liability operates as the release of the other. – Onu, JSC. Ifeanyi v. Boneh (2000)

Available:  University Of Calabar v. Dr. Okon J. Essien (1996)

Where several persons are jointly liable, the plaintiff is at liberty to select and sue anyone or any number of them and he can recover his claim in full from those he sued; the issue of contribution among such persons to meet the claim is their internal affair. – Iguh, JSC. Ifeanyi v. Boneh (2000)

* SUBSTANTIVE

The general principle of law which has its roots in the earliest years of the common law is that a master is liable for any wrong even if it is a criminal offence or a tortious act ‘committed by his servant while acting in the course of his employment. Tubervill v. Stamp (1697) I Ld. Raym. 264; Dyer v. Munday (1895) 1 QB 742. This is what is known as the doctrine of vicarious liability which is based on the principle of law enunciated by Sir John Holt CJ in Hern v. Nichols (c. 1700), 1 Salk 289; one of the earliest cases on the subject wherein the learned Chief Justice pronounced. “Seeing somebody must be a loser by this deceit. it is more reason that he, that employs and puts and trust and confidence in the deceiver, should be a loser than a stranger.” – Ogundare, JSC. Ifeanyi v. Boneh (2000)

On the authorities as a whole, the master is liable, though guilty of no fault himself. The liability of the master is dependent on the plaintiff being able to establish the servant’s liability for the tort and also that the servant was not only the master’s servant but that he also acted in the course of his employment. – Ogundare, JSC. Ifeanyi v. Boneh (2000)

The law regards both master and servant as joint tort-feasors – see: Jones v. Manchester v. Corporation (1952) 2 QB 852 at p. 870 where Denning L. J. (as he then was) held: “In all these cases it is of importance to remember that when a master employs a servant to do something for him, he is responsible for the servant’s conduct as if it were his own. If the servant commits a tort in the course of his employment, then the master is a tort-feasor as well as the servant.” – Ogundare, JSC. Ifeanyi v. Boneh (2000)

It is plain to me that the question of the liability of the servant is purely an evidential issue which can easily be established by cogent and acceptable evidence before the court and it would make no difference whether or not the driver of the offending vehicle is joined in the suit. Indeed, to suggest otherwise would mean that in all motor accident cases, where an offending driver dies in the collision, no action in negligence based on vicarious liability of the owner of the vehicle may ever arise. This, with respect, is not and cannot be the state of the law. – Iguh, JSC. Ifeanyi v. Boneh (2000)

End

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