Nigerian Tobacco Company Ltd. v Alloysius Olumba Agunanne (1995)



Nigerian Tobacco Company Ltd. v Alloysius Olumba Agunanne (1995) – SC

by PipAr


For the doctrine of common employment to hold sway, the employees must be involved in the same employment (i.e. doing the same thing) and be under the same employer.


– Law of Tort

⦿ TAG(S)

– Vicarious liability.
– Common employment.



Nigerian Tobacco Company Ltd.


Alloysius Olumba Agunanne


(1995) JELR 43436 (SC)


Supreme Court


Kutigi, JSC



– Chief Williams S.A.N.


– Mr. Njemanze.


⦿ FACT (as relating to the issues)

The plaintiff was at all material times a management trainee in the employment of the defendant. He was employed as a salesman in 1964 and rose to the rank of management trainee in 1975. He moved about in one of the defendant’s vehicles while performing and discharging his official duties. On the 5th day of April 1976 he was on duty and on his way to Jos from Enugu his station. He travelled in the defendant’s company vehicle registration No. LAD 7423 which at all material time was driven by defendant’s driver and servant, one Danjuma Magaji. On this day and along Jos-Pankshin Road he was involved in an accident when the vehicle in which he was traveling left the tarred road and hit a concrete culvert on the right hand side of the road. He sustained many injuries, some of them permanent. He was rushed semi-conscious to Jos General Hospital from where he was later transferred to a mission hospital, also in Jos. He also received specialist treatments at the Guinness Eye Clinic Kaduna and the Orthopaedic Hospital Enugu. The plaintiff maintained that the accident was caused by the negligence of defendant’s driver Danjuma Magaji and nothing else. He has remained in the employment of the defendant until January 1978 when he was retired on health grounds as a result of the accident.

The defendant did not seriously dispute the facts as narrated above. It agreed, that both the plaintiff and the driver, Danjuma Magaji, were its servants and employees at all material times; It also agreed that the plaintiff was one of its senior staff whose post was pensionable. The retirement age was 55 unless he resigned or his appointment terminated. The defendant however averred that it – “strenuously denied that the driver of the said vehicle drove or in any way managed the same negligently or that the accident was in any way caused by the negligence of the said driver who was under the control and supervision of the plaintiff.”

Available:  N.A.B Kotoye V. Mrs. F.M. Saraki & Anor. (1994) - SC

The defendant also contended that it cannot at any rate be held responsible for the tort of one servant against another committed in the course of their employment under the doctrine of common employment which it claimed was applicable in Plateau State where the accident herein happened.

In a reserved judgment the learned trial Judge Iguh J. (as he then was) considered the evidence from both sides and held on page 69 of the record thus: “I am satisfied that the plaintiff has proved a case of negligence against the driver Danjuma for which the defendants are vicariously liable.”

He concluded on page 73 that – “In the result the plaintiff’s action succeeds and there will be judgment for the plaintiff against the defendant in the sum of ₦22,000.00 being general damages for the ‘injuries and losses sustained by’ the said plaintiff on the 5th day of April 1976 as a result of the negligence of the defendant’s servant.”

Dissatisfied with the judgment of the High Court, the defendant appealed to the Court of Appeal, Enugu Division.

The Court of appeal dispassionately considered all the above issues in its judgment delivered on the 16th day of February 1987 and came to the conclusion that the appeal failed and dismissed it with costs.

Still not satisfied with the judgment of the Court of Appeal, the defendant has now appealed to this Court.


1. Whether on the pleadings and the evidence led the Court of Appeal was right in holding that the defence of common employment did not succeed?



[APPEAL: DISMISSED, with N1,000 cost]


i. Applying the above principles to the case in hand I have no doubt that the pleadings and evidence referred to by Chief Williams clearly go to establish the first condition set out above only. That is that the servant injured (the plaintiffs), and the servant causing the injury, the driver, Danjuma Mogaji, were fellow servants employed in the services of their common employer, the defendant. In my view there was no evidence before the court that the two servants herein were engaged on a common employment. The lower courts so found and I agree with them.
ii. Since the defence of common employment was only raised by appellant, it was for it to lead evidence to establish it. It was certainly not the duty of the plaintiff/respondent to adduce evidence thereof for the use of the appellant. Be that as it may, the learned trial Judge considered the available evidence and as I said, rightly came to the conclusion that the defence was not established by the appellant.

Available:  Saeby Jernstoberi Maskinfabric A/S v. Olaogun Enterprises Ltd. (1999) - SC




Maxwell on Interpretation of Statutes, 12th Edition, on pages 9-10, as follows- “The notes often found printed at the side of sections in an Act, which purport to summarise the effect of the sections, have sometimes been used as an aid to construction. But the weight of the authorities is to the effect that they are not parts of the statute and so should not be considered, for they are inserted not by Parliament nor under the authority of Parliament, but by irresponsible persons.”


In Olusanya v. Olusanya (supra) I made the following observation at page 139F:- “This court has said on a number of occasions that although an appeal court is entitled, in its discretion, to take points suo motu, if it sees fit to do so, yet that discretion must be exercised sparingly and in exceptional circumstances only. Where the points are so taken the parties must be given the opportunity to address the appeal court before decision on the points is made by the appeal court.”

Bowel L.J: in Cooke v. New River Company (1888) L.R. 38 Ch. D. 70 at page 71 – “I believe by long experience that judgments come with far more weight and gravity when they come upon points which the Judges are bound to decide, and I believe that obiter dicta, like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the Judges who have uttered them, and are a great source of embarrassment in future cases.”

Obazke Ogiamien and Anor. v. Obahon Ogiamien (1967) NMLR 245, this Court said at pages 248 and 249:- “This court has pointed out on several occasions that it is wrong for a judge to give a decision on a point which opportunity was not afforded counsel to argue at the hearing and particularly at a point which throughout the hearing was not raised.”





As the point was raised by counsel to the parties and we were duly addressed, we have the obligation and indeed the duty to pronounce on the point. The fact that our view on the point may differ from the submissions made by counsel to the parties is not, with respect, a ground for us to hear further address by counsel on the point. If this were the case, then each time a submission is made by parties, in the case and the Court, when it comes to consider its decision, disagree with or does not accept the submission, for either being wrong, inapplicable or untenable, there will be no end to the Court hearing further addresses, unless of course the Court comes to agree with the submission made by the parties. I am afraid this cannot be right and is not in accord with the practice and Rules of this Court. – Uwais, JSC. Tobacco v. Agunanne (1995)

Available:  His Highness V. A. Otitoju v. Governor Of Ondo State & Ors (1994)


Now, the doctrine of common employment as the authorities show would apply where the party injured is not a stranger but a fellow-servant of the party causing the injury and engaged in a common employment with him. In such a case the master is at common law not liable for injuries caused by the negligence of his servant in the course of his employment. But to exempt the master from liability two conditions as rightly submitted by Mr. Njamanze for the plaintiff must be satisfied. First, the servants must be fellow-servants, in other words they must be in the service of a common employer. It is not enough that the work should be common, but both parties must be servants of the same master (See Swanson v. North Eastern Rly (1878) 3 Ex. D341. Also workmen do not cease to be fellow-workmen because they are not all equal in point of station or authority (See Wilson v. Merry (1868) LRI SC. and Div. 326. Secondly, they must be engaged on a common employment, that is to say, the work must be common, but it need not be identical. The employment must be in common, in the sense that the safety of the one servant must in the ordinary and natural course of things depend on the care and skill of the others. – Kutigi, JSC. Tobacco v. Agunanne (1995)

The common law is distinguishable from any law enacted by the legislature. It is a body of principles and rules of action relating to the government and security of persons and property which derive their authority solely from usages and customs of immemorial antiquity and from the judgments and decrees of the courts recognising, affirming and enforcing such usages and customs. As defined by an American court, “it consists of those principles, usages and rules of action applicable to Government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the legislature” – see Bishop v. U.S.D.C. Tex; 334 F Supp 415,418. – Ogundare, JSC. Tobacco v. Agunanne (1995)




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