⦿ CASE SUMMARY OF:
Joseph Obi v. Biwater Shellabear Nigeria Limited and Joseph O. Yange (1996) – CA
⦿ LITE HOLDING
For the liability of a master to be established, the servant, being the principal offender, needs to be joined in the suit.
⦿AREA OF LAW
– Law of Torts.
– Vicarious liability.
– Proof in civil claim.
Biwater Shellabear Nigeria Limited
Joseph O. Yange
(1996) 1 NWLR PART 484 PG. 722
⦿ LEAD JUDGEMENT DELIVERED BY:
Adrian Chukwuemeka Orah, JSC
* FOR THE APPELLANT
G. Ofodile Okafor Esq;
* FOR THE RESPONDENT
– J.K. Mada Esq.
⦿ FACT (as relating to the issues)
The first defendant’s vehicle, a heavy duty Leyland trailer with registration No. KW 5357 AD driven by the 2nd defendant Joseph O. Iyange in the ordinary course of his duty on 30/5/92 collided with a Peugeot 504 saloon car Registration No. BN 5252 GA owned by the plaintiff, at the material time driven by the plaintiff’s driver, one SUNDAY ACHUPA who testified as PW1 in this case.
The collision occurred along Yandev-Gboko Road a public Highway near Amaco Hotel at a sharp bend corner; while PW1 Sunday Achupa, the driver of the plaintiff who had gone to the Benue Cement Company at the instance of the plaintiff was driving back to Gboko in the said Peugeot Car Registration No. BN 5252 GA.
The appellant as plaintiff commenced an action for negligence at the High Court of Benue State, sitting at Gboko presided over by I. Hwande, J. in suit No. GHC/72/93 against the respondents claiming jointly and severally as follows:
(a) Special damages – N150,000.00;
(b) General damages – N20,000.00;
Total claim – N 170,000.00, and
(c) 4% interest rate on judgment debt from date of judgment to date judgment will be liquidated.
In summary the learned trial Judge in his judgment delivered on 12/1/95 held:
1. a) dismissed the plaintiff’s claim for special and general damages in their entirety.
2. b) upheld the counter-claim of the 1st defendant and entered judgment in the counter-claim in favour of the 1st defendant against the plaintiff as follows: (i) the sum of N120,704.10K special damages, and (ii) N60,000.00 general damages for loss of services of the accident vehicle for six months.
This is an appeal by the Plaintiff to the Court of Appeal.
1. Whether the plaintiff/appellant was negligent and vicariously liable to the respondent when his (respondent) servant, the driver alleged to be negligent was not a party to the proceedings and in the sum of N180,704.10 claimed as special damages or to N120,704.10 awarded by the learned trial Judge and whether same were specifically proved.
2. Whether or not the award of N60,000.00 general damages being compensation for loss of service was justified and if the answer is in the affirmative, does it amount to double compensation?
3. Whether the plaintiff/appellant was entitled to judgment.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED, IN PART]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. It is beyond question and crystal clear that from the records of appeal, that appellant’s driver (PW1) Sunday Achukpa, who drove appellant’s vehicle Peugeot 504 Saloon car Registration No. BN 5252 GA on the fateful day 30/5/92 that was involved in an accident with 1st respondent’s trailer Leyland lorry with Registration No. KW 5357 AD serial number 02158 driven by the 2nd respondent on a public Highway at Amaco Hotel by-pass bending/sharp corner along Aliade-Yandev Road, Gboko, was never a party to the whole civil proceedings. The respondents did not join him in the proceedings and consequently did not establish any liability against the said appellant’s driver.
ii. A master and servant relationship has to be established and the servant held liable before a vicarious liability of a master can arise. The servant has to be joined as a party to a suit against his master before either the relationship of master and servant or principal and agent can arise and consequently the liability of the servant can be established and the vicarious liability of the master can arise. In an action of this nature, it is imperative to bring an action albeit, a counter-claim as in the instant case jointly and severally against the master and his servant. Indeed, the servant must first be held liable before the master can be vicariously held liable. The liability of the master is predicated on the liability of the servant. The servant is the principal tortfeasor while the master is the accessory. It is the accessory that follows the principal never the reverse. It is expressed in the Latin maxims: “Accessorium non ducit, sed sequitur suum principale” (That which is the accessory in incident does not lead, but follows its principal). “Accessorius sequitur naturam sui principalis” (Accessory follows the nature of its principal. One who is accessory to a crime cannot be guilty of a higher degree of crime than his principal.)
iii. Applying the principles in the foregoing cases, I am of the firm view, that since the respondents counter-claimants in their counter-claim did not join the servant of the 1st appellant to the suit, the issue of the liability of the servant upon which the respondents counterclaim special and general damages does not at all arise and has not arisen and has not been established for a consideration whether or not the appellant should shoulder the servant’s liability. Consequently, because, the servant was not joined in the action, I hold, that the action (sic) the counterclaim against ab initio incompetent and I so declare. The counter-claim being ab initio incompetent for the reasons I have given, the Court of Appeal like trial court should not waste further time going into the merits of the issue of award for special and general damages in the case, it is for this reason, that I had earlier declared and pronounced the two heads of claim/relief’s of the counter-claim for special and general damages against the appellant dismissed.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. It is clear from the judgment of the trial Court that the award of N60,000.00 general damages awarded to the 1st respondent against the appellant for loss of income of 1st respondent’s use of its vehicle Registration No. KW 5357 AD cannot be presumed by law to be the direct, natural or probable consequence of the act of the appellant complained of (See E.K.O. Odulaja v. A.F. Haddad (1973) 1 All NLR 71, 191 at p. 195-196 at p. 195). Indeed, loss of income is in my view special damages, which ought to but has not been specifically pleaded and proved. Where it is awarded as general damages in addition to special damages already awarded, it amounts to double compensation. The court must not make any such award of general damages, which will in effect amount to compensating the plaintiff twice for a single loss. Such award must be impeached on that ground.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT. THE COURT HELD THAT THE PLAINTIFF DID NOT PROVE ITS’ CASE AT THE TRIAL COURT.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In the case of Ifeanyi Chukwu Osondu Co. Ltd. v. Solel Boneh (Nig.) Ltd. (1993) 3 NWLR (Pt. 280) 246 to 248 the Court of Appeal in a similar circumstance held: ”
1. In the case of vicarious liability of a master for the negligence of his servant, be that master a natural or a juristic person, the negligence and liability of the servant must first be established. Thus where the liability or otherwise of the master depends wholly on a verdict against the servant, then it is very necessary to see whether the servant was liable. Once the liability of the servant is established, then it must be determined whether or not the master or employee must shoulder the servant’s liability. (Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179 at 189; Consortium Steel Plant Alaja v. Akindejoye (unreported) Case No. CA/B/128/87 of 3/11/89 referred to and followed (p. 251 paras, B-E).
2. For a party claiming for negligence in tort against a natural or juristic person and a servant of that natural or juristic person, who is the principal tortfeasor, the servant must be joined because the vicarious liability of the master is predicated or consequent upon that of the servant (Consortium Steel Plant Alaja v. Akindejoye unreported supra).
3. In an action for negligence, if the principal actor – the offending servant – is not joined as a party so that his liability may be established, the question of finding the master vicariously liable can never arise. Consequently, once a servant 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 (Chukwu v. Solel Boneh (Nig.) Ltd. (supra) (pp. 251-252) paras, H-A).
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
I have to observe with respect, that a counterclaim is a different action from that on which the counter-claim is predicted. In such a case, there must be two separate judgments since each is a separate claim though brought together in one suit. From the parties on records, it is crystal clear, that only the plaintiff/appellant Joseph Obi was plaintiff in his claim and the defendant in the counterclaim against him. The plaintiffs-Biwater Shellbear (Nig.) Ltd, and Joseph O. Yange as plaintiffs in their counter-claim, did not make Joseph Obi’s (the defendant’s) driver (PW1) Sunday Achupa, a party in the suit/the counter-claim. – Orah, JSC. Obi v. BiWater (1996)
The law is that if all the losses suffered by the plaintiff have been compensated for by an award of special damages, the court should refrain from awarding general damages to the plaintiff in order to avoid double compensation. (See Nigerian Railway Corporation v. Odemuyiwa (1974) NMLR 115. See also Lagos City Council v. Unachukwu (1978) 1 All NLR 324 where it was held that, the plaintiff having been awarded for his actual loss under various special headings he could not recover any further award under the heading of general damages. – Orah, JSC. Obi v. BiWater (1996)
It is the duty of the trial Court when confronted with two conflicting or opposing accounts to consider on the balance of probabilities which of them to accept and the Appeal Court does not disturb a finding of fact made by the trial court unless it is satisfied that it is unsound or perverse. – Orah, JSC. Obi v. BiWater (1996)
The non-joinder for the appellant’s driver to the counter-claim (sic) to the whole proceedings is fatal to every head of claim made by the 1st respondent(s) in the said counter-claim. – Orah, JSC. Obi v. BiWater (1996)
The burden of proof in this case lies on the plaintiff who would fail, assuming no evidence had been adduced on either side. The burden of proof in the particular case rests on the plaintiff, he is the party against whom judgment would be given if no evidence were produced in respect of the negligence he alleges against the 2nd defendant in this case. – Orah, JSC. Obi v. BiWater (1996)