ALHAJI MANU BELLO v. MALAM NUHU DANKASA DADAH & ANOR
(2016)LCN/8156(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of February, 2016
CA/YL/93/2014
RATIO
LABOUR LAW: SERVICE RELATIONSHIP; THE DUTY OF AN EMPLOYEE TO TAKE REASONABLE CARE FOR THE ACTIONS AN SAFETY OF THE EMPLOYER
The general requirement of the law where there exists a service relationship between employer and employee is that the former is under a duty to take reasonable care for the actions and safety of the latter in all the circumstances of the case, so as not to cause harm to others or to expose him (employee) to unnecessary risk. The level of this duty is the same as that of the employer’s Common Law duty of care in the law of negligence. per. JUMMAI HANNATU SANKEY, J.C.A.
COMMERCIAL LAW: AGENCY; WHAT AMOUNTS TO AGENCY
In the law of agency, the relationship which arises when a person called “agent” acts on behalf of another called “principal”, whereby the latter undertakes to be answerable for the lawful acts the former does within the scope of his authority, is what amounts to agency. Liability falls on the principal where he gives his agent express authority to do a tortuous act or that which results in a tort. He may also be liable for a tort committed by his agent while acting within the scope of his implied authority. But where the tort by the agent falls entirely outside the scope of his authority, the principal is not liable. per. JUMMAI HANNATU SANKEY, J.C.A.
TORT: TORTFEASOR; CATEGORIES OF JOINT TORTFEASORS
In the case of a tortfeasor, each of two or more joint tortfeasors is liable for the entire damage resulting from the tort. For instance, the following are joint tortfeasors:
1. Employer and employee where the employer is vicariously liable for the tort of the employee.
2. Principal and agent where the principal is responsible for the tort of the agent.
3. Employer and independent contractor where the employer is liable for the tort of his independent contractor
4. A person who instigates another to commit a tort and the person who then commits the tort.
5. Persons who take concerted action to a common end and in the course of executing that joint purpose, commit a tort. per. JUMMAI HANNATU SANKEY, J.C.A.
LABOUR LAW: SERVICE RELATIONSHIP; COMMON LAW PRINCIPLE ON THE RELATIONSHIP OF AN EMPLOYER AND HIS EMPLOYEE IN RESPECT OF TORTS COMMITTED BY THE EMPLOYEE
The Common Law principles which govern the relationship of an employer and his employee in respect of torts committed by the latter is well stated in Halsbury’s Laws of England Vol. 45(2) fourth Edition, paragraph 817:
“Where an employer expressly authorises his employee to do a particular act which is in itself a tort or which necessarily results in a tort, the employer is liable to an action in tort at the suit of the person injured. His liability is equally clear where he ratifies a tort committed by his employee without his authority. Where the act which the employee is expressly authorised to do is lawful, the employee does the act in such a manner as to occasion injury to a third person, the employer cannot escape liability on the ground that he did not actually authorise the particular manner in which the act was done, or even on the ground that the employee was acting on his own behalf and not on that of his employer.”
In 1952, Denning L.J. (as he then was), stated the law as follows:
“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 the tortfeasor as well as the servant.” See the case of Jones V Manchester Corporation (1952) 2 QB 852 at 870; Latimer V AEC Ltd (1953) AC 643. The general disposition of the law is that an employer is responsible for the wrongful acts authorised by him or for wrongful modes of doing authorised acts if the act is one which, if lawful, would have fallen within the scope of the employee’s employment, as being reasonably necessary for the discharge of his duties or the preservation of the employer?s interests or property, or otherwise incidental to the purposes of his employment, the employer must accept responsibility in as much as he has authorised the employee to do that particular class of act and is therefore precluded from denying the employee’s authority to do the act complained of. If, on the other hand, the act is one which, even if lawful, would not have fallen within the scope of the employee’s employment, the employer is not bound unless the act is capable of being ratified and is in fact ratified by him. See Iyere V Bendel Feed & Flour Mill Ltd (2008) LPELR-1578 (SC); & James V Mid-Motors (Nig) Co. Ltd (1978) 11-12 SC 31 at 68. per. JUMMAI HANNATU SANKEY, J.C.A.
TORT: VICARIOUS LIABILITY: THE DEFINITION OF VICARIOUS LIABILITY
At page 927 of Black’s Law Dictionary 7th Edition, “Vicarious Liability” has been defined to mean:
“Liability that a supervisory party (such as an employer) bears for the actionable conduct of subordinate or associate (such as an employee) because of the relationship between the two parties”; with the derivation from Latin “respondent superior”? defined at page 1313 Black’s Law Dictionary 7th Edition aforesaid as: (Law Latin -Let the superior make answer) Torts.
The doctrine holding an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency based on the doctrine that
“He who does a thing through another does it himself.” I would start a consideration of this point and issue by saying that the concept of the doctrine of vicarious liability in civil actions of torts has its foundation in the common law position that a master is liable for any wrong, even if it is a criminal offence or a tortuous act, committed by his servant while acting in the course of his employment; and that a principal is also responsible for acts done by his agent in the discharge of the authority of the agency. In other words, there must be some proof of relationship or connection between them to establish such liability. It is not enough to allege a wrong/tort or liability for such act on the part of the master without any proof of some master and servant or agency relationship between them. This has evolved from the principle enunciated in the case of Hern V Nicholas (C. 1700) 1 Salk, 289 by Sir John Holt, CJ, when he said:
“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.”
See Zang V Ituma (2014) LPELR-23521(CA); Ifeanyi Chukwu (Osondu) Ltd B Soleh Boneh Ltd (2000) 3 SC 42; (2000) ALL NKLR 604; (2000) 5 NWLR (Pt. (656) 322; Gata V Paulosa Nig. Ltd (1998) LPELR-5544(CA). The principle of vicarious liability is therefore based on the existence of a relationship of a master and servant or principal and agent between the person or party who actually or in fact committed the tort and the person or party to be held responsible or liable vicariously for such tort other than that other person or party who committed the tort, commonly known in law as the tortfeasor. The principle is that once there exists a master/servant relationship between an employer and a tortfeasor, and it is established that the tortfeasor committed the wrong complained of in the course of his employment; there is a rebuttable presumption of the employer’s vicarious liability. In such a situation, the onus is on the employer to prove that the alleged wrong was committed by the tortfeasor not in the course of his employment but that it was committed while he was on a frolic of his own. The employer has an additional duty to exert reasonable control and supervision over those he engages. Thus the mere proof by an employer that the tortfeasor committed the wrong while on a frolic of his own would not discharge him from being vicariously liable. An employer can be vicariously liable for the negligent or reckless acts of an employee if he failed to provide the necessary controls by way of instructions and other steps to prevent unnecessary risks to other employees. See Techno Mechanical (Nig) Ltd V Ogunbayo (1999) LPELR-6760(CA); Eseibe V Agholor (1993) 9 NWLR (Pt. 316) 128; Quinn V Horsfall & Bickham Ltd (1956) 2 ALL ER 467; General Cleaning Contractors Ltd V Christmas (1953) AC 189; Bacack V Brighton (1949) 1 KB 339. per. JUMMAI HANNATU SANKEY, J.C.A.
TORT: TORTFEASOR; WHAT MUST BE PLEADED AND PROVED FOR A CLAIM AGAINST THE EMPLOYER TO SUCCEED FOR ACTS OR TORTS COMMITTED BY THE EMPLOYEE OR SERVANT
For a claim against the employer or master to succeed for acts or torts committed by the employee or servant, it must be pleaded and proved by evidence that:
(a) There was at the material time to the tort, the relationship of employer/employee or master/servant between the tortfeasor and the party to be held responsible for the tort.
(b) The tortfeasor was liable for the tort; and
(c) That the tortfeasor acted in the course of employment of the employer or within the specific authority of the master/principal.
See Osondu V Soleh Boneh Ltd (supra); Iyare V Bendel Feed & Flour Mill Ltd (2008) 18 NWLR (Pt. 1119) 300; Health Care Products Nig. Ltd V Alhaji Bezza (2003) FWLR (Pt. 162) 1937; Royal Ade o. Ltd (2004) ALL FWLR (Pt. 213) 1776; Gata V Panlola Nig. Ltd (1998) 3 NWLR (Pt. 543) 104; Union Bank V Ajagu (1990) 1 NWLR (Pt. 126) 328; Obi V Biwater Shellebear Nig. Ltd (1997) 1 NWLR (Pt. 484) 722. per. JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
ALHAJI MANU BELLO Appellant(s)
AND
1. MALAM NUHU DANKASA DADAH
2. BAPPA SANDA UMARU SHUAIBU Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the Judgment of the Adamawa State High Court of Justice in Suit No. ADSY/73/2006 delivered on 9th June, 2014, wherein the lower Court entered Judgment in favour of the Respondent herein (as Plaintiff) in a claim seeking special and general damages against the Appellant and the 2nd Respondent.
A precis of the facts of the case at the lower Court is as follows: On 16th October, 2006 at about 2:00pm, the 1st Respondent visited his guinea corn farm at Hosere Mbembe in Yola South L.G.A. of Adamawa State and therein, he saw the 2nd Respondent on his farmland with the cattle of the Appellant numbering about one hundred and destroyed his crops. The cows were led into his farm by the 2nd Respondent who was engaged by the Appellant to rear the Appellant’s cows. As a result, the 1st Respondent?s guinea corn farm was substantially damaged. The 1st Respondent immediately drove the cows away from his farm and thereafter confronted the 2nd Respondent, the cattle rearer who instead, threatened to kill him. The 1st Respondent, sensing
danger, left the farm immediately and returned home.
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The next day, 17th October, 2006, the 1st Respondent went to the cattle ranch of the Appellant to lodge a complaint to the Appellant about the events of the previous day. The Appellant was not at home but he met the 2nd Respondent.
Thereupon, the 2nd Respondent attacked and beat him up with a stick breaking his eye in the process and leaving him drenched in his own blood. Thereafter, the 2nd Respondent fled the scene abandoning both the 1st Respondent and the cows. The 1st Respondent proceeded to his house where his son and son-in-law took him to the Police Station to lodge a report, and subsequently to the hospital for treatment. He was first treated at a Private hospital and then referred to a Specialist Hospital for further treatment on the broken eye.
There, he was on hospital admission for one month as a result of which he incurred medical expenses on the purchase of drugs and extensive treatment. As a result of these events, the 1st Respondent suffered losses both on his farmland in terms of his crops, as well as physically to his person and his finances in terms of the injuries
inflicted on him. It is against this background that the 1st Respondent filed the claim against the 2nd Respondent (as a servant of the Appellant) and the Appellant, jointly and severally.
By an Amended Writ of summons issued on 19th April, 2007 (which amendment the lower Court granted by its order of 12-03-07 at pages 46-47 and 116-117 of the printed Record of proceedings), the 1st Respondent claimed various sums as special and general damages for trespass, mischief, medical bills and permanent physical damage to the left eye of the Respondent caused by the 2nd Respondent while in the employment and service of the Appellant.
Specifically, in terms of paragraph 25 of the said Amended Statement of claim, he claimed as follows:
1. ?Special damages of N90, 000.00 for the trespass and mischief caused on the Plaintiff?s Guinea Corn farm by the cattle of the 2nd Defendant while being tended by the 1st Defendant in the course of employment and in the service of the 2nd Defendant.
2. Special damages of N39, 340.00 being hospital bill and other expenditure for the treatment of the Plaintiff?s left eye
broken by the 1st Defendant while on trespass with cattle on the Plaintiff?s Guinea Corn farm and in the course of employment and service of the 2nd Defendant.
3. General damages of N10, 000, 000.00 (Ten Million Naira) for the permanent physical damage to the left eye of the Plaintiff caused by the 1st Defendant while on trespass on the Plaintiff?s Guinea Corn farm and in the course of employment and service of the 2nd Defendant.
4. Cost of this suit.?
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At the trial, the 1st Respondent (as Plaintiff) called seven witnesses (including himself) and tendered numerous exhibits, while the Appellant (as 2nd Defendant) adduced evidence through two witnesses (himself inclusive). The 2nd Respondent (as 1st Defendant before the trial Court) was said to have absconded and so never appeared at the trial to defend himself from the claim. At the close of trial and final addresses of Counsel, Judgment was delivered on 9th June, 2014 wherein the learned trial Judge found in favour of the 1st Respondent and awarded all the claims in special damages, plus general damages to the tune of N5, 000,000.00
(Five Million Naira) against both Defendants, jointly and severally. It is against this decision that the Appellant filed this Appeal on 25th August, 2014. By his Notice of Appeal, the Appellant complained on ten grounds (as contained at pages 187-198 of the Record).
At the hearing of the Appeal on 9th November, 2015, learned Counsel for the Appellant, E.M. Zangina Esq., adopted the Appellant?s Brief of argument filed on 18-02-15 but deemed duly filed on 17-06-15, and placed reliance on the arguments therein as the Appellant?s submissions in the Appeal. He distilled five issues from the ten Grounds of Appeal, with the exception of Ground 7, from which no issue was distilled. He urged the Court to allow the Appeal, set aside the decision of the trial Court, and in its place, enter an order of dismissal of the entire claim of the Plaintiff.
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In response, learned Counsel for the 1st Respondent, G.E. Akpanamasi Esq., adopted the 1st Respondent?s Brief of argument filed on 17-06-15 and relied on the arguments contained therein as his submissions in response to the Appeal. While he distilled four issues from the ten Grounds of Appeal, no
ground was distilled from Ground 5 thereof. He urged the Court to dismiss the Appeal with costs, and to uphold and affirm the Judgment of the lower Court.
Upon a close inspection of the two sets of issues formulated by the parties, I am of the opinion that they are virtually identical in content. I shall therefore adopt the issues as formulated by the Appellant in the determination of the Appeal. They are therefore set out hereunder as follows:
1. Whether the learned trial Judge was right when he held that the 2nd Respondent was an employee of the Appellant at the time the tortuous acts were allegedly committed against the 1st Respondent by the 2nd Respondent. (Grounds 2 and 3)
2. Whether the learned trial Judge was not wrong and his decision liable to be set aside by this Court when he held that the two tortuous acts complained of by the 1st Respondent were actually committed by 2nd Respondent and within the scope of his employment with the Appellant thereby holding the Appellant vicariously liable for the said torts. (Grounds 1 and 8)
3. Whether the learned trial Judge properly evaluated the
evidence before him in arriving at his decision and whether he was right in rejecting the evidence of DW1. (Grounds 4 and 6)
4. Whether the special damages awarded by the trial Court were not wrongly assessed and awarded and therefore liable to be set aside by this Court. (Ground 5)
5. Whether the general damages of N5, 000, 000. 00 awarded by the trial Court were not wrongly awarded against the Appellant and unreasonably high and therefore, liable to be set aside by this Court. (Grounds 9 and 10)
The Appellant argued issues one and three together, issue two separately and issues four and five together. They shall therefore be taken as addressed in the Briefs.
Issues one and three:
1. Whether the learned trial Judge was right when he held that the 2nd Respondent was an employee of the Appellant at the time the tortuous acts were allegedly committed against the 1st Respondent by the 2nd Respondent.
3. Whether the learned trial Judge properly evaluated the evidence before him in arriving at his
decision and whether he was right in rejecting the evidence of DW1.
On these two issues, learned Counsel for the Appellant submits that by the state of pleadings, whereas the 1st Respondent claims that the 2nd Respondent was an employee of the Appellant and he committed the torts complained of in the course of his employment with the Appellant; the Appellant denies these allegations. Therefore, he submits, the 1st Respondent had a duty to prove his assertions. He relies on to Salmond on Tort 15th Edition page 106 for the definition of “servant” as:
“Any person employed by another master to do work for him on the terms that he, the servant, is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done.”
He argues that the learned trial Judge, in arriving at his conclusion that the 2nd Respondent was an employee of the Appellant, wrongly relied on the evidence of PW1, PW2, PW3 and PW7 to answer this question in the affirmative and that the finding is not borne out by the evidence of the said witnesses as none of the witnesses
testified that he saw the 1st Defendant rearing the cattle of the 2nd Defendant. Counsel thus submits that the 1st Respondent failed to call credible evidence to establish a master/servant relationship between the Appellant and the 2nd Respondent.
Counsel draws attention to the evidence of the Appellant as DW2 wherein he stated that he did not know the 2nd Respondent; and that his cattle was reared by his own children, in particular by his son, DW1. DW1, a 39 year old man also testified in that vein, stating that he had been rearing his father?s cattle since he was 15 years old. He therefore submits that where a trial Court failed to properly evaluate the evidence adduced before it or where a Judgment is based on wrong findings, an appeal Court can interfere, re-evaluate the evidence, make proper findings and come to a proper conclusion. Relying on Ifeata V Shell Petroleum Dev. Company Ltd (2006) All FWLR (Pt. 314) 305, paras C-E at 324; Okodion V FAAN (2008) All FWLR (Pt. 441) 914 at 920; & Odofin V Mogaji Vol. 2 SCJE PAGE 48 AT 49, Counsel urged the Court to reevaluate the evidence adduced and to therefore resolve these two issues in
favour of the Appellant.
In his submission under these issues, learned Counsel for the 1st Respondent agrees that by the pleadings, it is the 1st Respondent’s case that the 2nd Respondent was an employee and/or servant of the Appellant and that he committed the torts complained of by the 1st Respondent in the course of his employment with the Appellant. In proving these assertions, he relies on the evidence of the 1st Respondent as PW7, and the evidence of PW1, PW2, PW3 and PW4. He submits that the learned trial Judge was right when he found as he did that the damage to the farm and the injury caused to the person of the 1st Respondent were committed by the 2nd Respondent when he was under the employment of the Appellant as his cattle rearer.
In respect of the submission by the Appellant’s Counsel that there were no clear and unambiguous terms of employment and that an employment cannot be said to exist by inference, Counsel submits that the law is that an employment establishing master/servant relationship need not be in writing at all times. It is sufficient if it is oral provided that there is offer, acceptance and consideration
acceptable in law. This is more so considering the fact of illiteracy of the parties and their local setting. He therefore submits that from the evidence adduced through the PW1, there was offer and acceptance, and the consideration was one cow to be given to the 2nd Respondent for every five months of service rendered in rearing the Appellant?s cows. For this, he relies on Uwemedimo V Mobil Producing (Nig) Unlimited (2011) 4 NWLR (Pt. 1236) Page 80 at 84; Metibaiye V Narelli International Ltd (2009) 16 NWLR (Pt. 1167) 326 at 330-333; & Olarewaju V Afribank (Nig) Plc (2001) 7 NSQR 22 at 24.
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Counsel submits that, in addition to the evidence of PW1, PW7 (1st Respondent), PW3 and PW4 also testified in proof of the master/servant relationship between the Appellant and the 1st Respondent. He agrees with the findings of the lower Court that a contract of employment can be formal or, express or implied, and that the contract for rearing of cattle in this case falls within the nature of contracts where a servant holds office at pleasure. He submits that this finding was consistent with the evidence of the witnesses, particularly that of PW3 and PW7 who
said that they knew the 2nd Respondent as the Appellant?s cattle rearer because they all live in the same locality and had seen him rearing and tending the Appellant?s cows. Counsel submits that on the contrary, DW1 and DW2 (Appellant), were found not to be witnesses of truth in that both claimed that DW1, as at the time of the tortuous acts complained of, was the cattle rearer of his father’s cows at 38 years of age with two wives and eight children. Counsel submits that that a trial Judge has the primary responsibility of hearing witnesses before him, assessing and evaluating their evidence, ascribing probative value to every piece of evidence and to believe or not to believe any particular witness. It is also the law that a witness is disbelieved if the trial Judge finds his evidence manifestly unreliable.
He relies on Agbi V Ogbeh (2006) 11 NWLR (Pt. 990) 65 at 116; & AMC (Nig) Ltd V Volkswagen of Nig. Ltd (2011) All FWLR (Pt. 588) 928 at 952.
Counsel further submits that the Court of Appeal will not interfere with the opinion of the trial Court on the credibility of a witness whom it had the singular advantage of hearing
and seeing in the witness box, when such an opinion is based on either some sound reason referred to in the Judgment, or on the manifest untruthfulness of the witness. An appeal Court will not entertain arguments showing that the trial Court should or should not have believed a witness. He relies on Johnson V Maja (1950-51) 13 WACA 294; Ukaegbu V Nwololo (2009) 3 NWLR (Pt. 127) 194 at 209; Onogitere V Itietie (1972) 1 ANLR (Pt. 2) 147 at 149; & Annels Transport Ltd V Martins (1970) 1 ANLR 27 at 32. Based on all these, Counsel urged the Court to resolve issues one and three in favour of the 1st Respondent.
Findings:
The crux of these issues is quite simply the resolution of whether the 1st Respondent proved the assertions in his pleadings that for the purposes of liability, the 2nd Respondent was the servant of the Appellant, as his cattle rearer tending and protecting his cattle, and under his employment at the time of the commission of the acts complained of. A contract of employment connotes a contract of service or apprenticeship, whether express or implied, and if it is
express, whether it is oral or in writing.
?The general requirement of the law where there exists a service relationship between employer and employee is that the former is under a duty to take reasonable care for the actions and safety of the latter in all the circumstances of the case, so as not to cause harm to others or to expose him (employee) to unnecessary risk. The level of this duty is the same as that of the employer’s Common Law duty of care in the law of negligence.
In the law of agency, the relationship which arises when a person called “agent” acts on behalf of another called “principal”, whereby the latter undertakes to be answerable for the lawful acts the former does within the scope of his authority, is what amounts to agency. Liability falls on the principal where he gives his agent express authority to do a tortuous act or that which results in a tort. He may also be liable for a tort committed by his agent while acting within the scope of his implied authority. But where the tort by the agent falls entirely outside the scope of his authority, the principal is not liable.
In the case of a tortfeasor,
each of two or more joint tortfeasors is liable for the entire damage resulting from the tort. For instance, the following are joint tortfeasors:
1. Employer and employee where the employer is vicariously liable for the tort of the employee.
2. Principal and agent where the principal is responsible for the tort of the agent.
3. Employer and independent contractor where the employer is liable for the tort of his independent contractor
4. A person who instigates another to commit a tort and the person who then commits the tort.
5. Persons who take concerted action to a common end and in the course of executing that joint purpose, commit a tort.
The present Appeal falls within the first category of joint tortfeasor, i.e. employer and employee. The Common Law principles which govern the relationship of an employer and his employee in respect of torts committed by the latter is well stated in Halsbury’s Laws of England Vol. 45(2) fourth Edition, paragraph 817:
“Where an employer expressly authorises his employee to do a particular act which is in itself a tort or which necessarily results in a tort, the
employer is liable to an action in tort at the suit of the person injured. His liability is equally clear where he ratifies a tort committed by his employee without his authority. Where the act which the employee is expressly authorised to do is lawful, the employee does the act in such a manner as to occasion injury to a third person, the employer cannot escape liability on the ground that he did not actually authorise the particular manner in which the act was done, or even on the ground that the employee was acting on his own behalf and not on that of his employer.”
In 1952, Denning L.J. (as he then was), stated the law as follows:
“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 the tortfeasor as well as the servant.”
See the case of Jones V Manchester Corporation (1952) 2 QB 852 at 870; Latimer V AEC Ltd (1953) AC 643.
The general disposition of the law is that an employer
is responsible for the wrongful acts authorised by him or for wrongful modes of doing authorised acts if the act is one which, if lawful, would have fallen within the scope of the employee’s employment, as being reasonably necessary for the discharge of his duties or the preservation of the employer?s interests or property, or otherwise incidental to the purposes of his employment, the employer must accept responsibility in as much as he has authorised the employee to do that particular class of act and is therefore precluded from denying the employee’s authority to do the act complained of. If, on the other hand, the act is one which, even if lawful, would not have fallen within the scope of the employee’s employment, the employer is not bound unless the act is capable of being ratified and is in fact ratified by him. See Iyere V Bendel Feed & Flour Mill Ltd (2008) LPELR-1578 (SC); & James V Mid-Motors (Nig) Co. Ltd (1978) 11-12 SC 31 at 68.
The 1st Respondent herein called seven witnesses to prove his claim, and of these witnesses, PW1, PW3 and PW7 dwelt squarely on this issue. PW1, the biological father of the 1st
Respondent was very categorical in his testimony that his son was employed by the Appellant to tend his cattle. He went further to give details of his role in agreement, the terms of employment and the fact that after the agreement, the 2nd Respondent moved into the house of the Appellant to live there. For avoidance of doubt, this is his viva voce evidence from page 123 of the Record:
“I know the 1st Defendant he is my son. I know Alhaji Manu Bello 2nd Defendant he went to my house and ask for my son … seeking for my son to look after his cattle. This was about two years now, and I permitted my son the 1st Defendant to do so. He was leaving (sic) in the house of 2nd Defendant whom (sic) doing his work. They settled that after five months of rearing the cows the 2nd defendant will give him a cow. My son the 2nd Defendant was rearing a (sic) cows for the 2nd Defendant.”
Under cross-examination, he went on to say that his son who was 25 years old when he was engaged by the Appellant and the incident occurred only three to four months after he started his job. The Appellant has sought to impugn the testimony of this
witness, contending that he agreed to give such evidence based on an agreement with that his name would be substituted with that of his son, which was done. There is however no factual basis for this submission, as no further attempt was made by the Appellant to substantiate such a serious allegation. It therefore remains a mere allegation directed at discrediting the witness who, as the father of the servant of the Appellant, had no reason to lie against his son. Also the father of the tortfeasor, there was no credible reason on Record why the lower Court should have disbelieved the PW1 and refused to act on this evidence, particularly coming from a father about his son, and given the fact that he was even a vital part of the negotiations of the employment agreement. His evidence was believable and proper weight was attached to it. The fact that he was once a defendant to the suit notwithstanding, as it is also in evidence that his son absconded immediately after the incident and the PW1 was even arraigned in Court for screening of an offender. However, he stated quite categorically that after the 2nd Respondent left the house of the Appellant, he did not
know where he went.
PW3, the son-in-law of the 1st Respondent and a resident in the village where all the parties to the suit live, also testified that he has known the Appellant for 35 years because they live in the same village and he knows that the 2nd Respondent was the cattle rearer of the Appellant. He explained the basis of his knowledge at pages 130-131 of the Record as follows:
?The 1st Defendant was working for the 2nd Defendant and I know (sic) very well and he lives side (sic) the 2nd Defendant?s house. The 1st Defendant is no where to be found as he has run away. I know he has ran away because he is no longer with the 2nd Defendant. He is no longer taking care of the cattle.?
Under cross examination, he expatiated as follows:
?I know 1st Defendant from 2005… I know him as cattle rearer of 2nd Defendant. I was not present when the 2nd Defendant employed the 1st Defendant. I know that 1st Defendant was employed by the 2nd Defendant because I known (sic) our cows was near their cows… I know Alhaji Shuaibu as father of 1st Defendant during the case, but I know 1st Defendant before he
started working with 2nd Defendant.?
As for the PW7 (1st Respondent), he repeatedly and consistently stated both in his evidence in chief as well as under cross-examination that he knew the 2nd Respondent as the servant of the Appellant, serving as his cattle rearer, who also lived in his master?s house (pages 149-152 of the Record). He reiterated that it was the 2nd Respondent who launched such a vicious attack on him while he was under the employment of the Appellant as his cattle rearer.
When he encountered the 2nd Respondent on his (1st Respondent?s) farm on 16-10-06 when he drove the cattle into the farm and destroyed his guinea corn crop, instead of being remorseful, the 2nd Respondent threatened to kill him.
Therefore the next day, he proceeded to the Appellant?s cattle ranch to report the incident to him, being the 2nd Respondent?s employer/master/principal. It was at the Appellant?s ranch that the 2nd Respondent, whom he found engaged in tending the cattle of the Appellant, ultimately attacked and inflicted such grievous injury on him. By this testimony, in conjunction with other pieces of evidence
before the lower Court, especially that of the PW1, certainly an inference could justifiably and reasonably be drawn that the 2nd Respondent was the employee of the Appellant at the time of the incident leading to the suit.
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Confronted with all these pieces of evidence on the relationship between the Appellant and the 2nd Respondent, the Appellant?s response, from his testimony as DW2 and that of his son as DW1, was a denial and the assertion that it was DW1 who was his cattle rearer, and had been so engaged since he was 15 years old. No further evidence was adduced through any other member of the community to establish this assertion. This is in addition to the fact that the Appellant admitted that he knew the 1st Respondent very well because they live in the same community. This latter piece of evidence is in tandem with the evidence of PW1, PW2, PW3 and PW7 that they also knew the Appellant very well as they all lived in the same village. Thus, they also knew that the 2nd Respondent had been tending his cattle up to the time of the incident. Therefore on the preponderance of evidence, the lower Court was right and entitled to find as it did, based
on the balance of probabilities that, while under the employment of the Appellant tending his cattle, the 2nd Respondent damaged the guinea corn farm of the 1st Respondent and beat him up breaking his left eye in the process and causing him permanent loss of vision. This is a finding of fact which is amply borne out by the evidence, and I find no reason to disturb or to interfere with same.
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A summary of the relationship can be summarised thus: the 2nd Respondent was employed as a cattle rearer to tend and protect the cattle of the Appellant and to generally take care of their general welfare. In the course of discharging these duties, the former encroached and trespassed into the 1st Respondent?s farm destroying his guinea corn crop. In addition, he assaulted and inflicted serious injury on the owner of the farm, 1st Respondent, when the latter dared to attempt to lodge a report of the damage to the 2nd Respondent?s employer, the Appellant. By law, the Appellant is certainly vicariously liable for the tortuous acts of the 2nd Respondent committed in the course of carrying out the duties of his employment, i.e. tending the Appellant?s
cattle. I do so find.
It is settled law that the ascription of probative value to evidence is primarily that of the lower Court and the interference by an appeal Court on findings of fact is limited to a very narrow dimension. An appeal Court must attach the greatest weight to the opinion of the trial Judge who has the privilege of seeing and indeed has seen and heard the witnesses. The appeal Court must not disturb the findings of fact made by the trial Judge except where such findings are unsound. It is also trite law for the determination of an appeal on issues of facts, that it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless such findings are perverse. In other words, where there has been a proper appraisal of evidence by a trial Court, a Court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. I have therefore not been persuaded that there was anything wrong with the findings in favour of the 1st Respondent by the lower Court.
See Anyegwu V Onuche (2009) LPELR-521(SC); UBA Plc V BTL Industries Ltd (2005) LPELR-8065(SC); Olatunde V Abidogun (2001) LPELR-2576(SC); Lagga V Sarhuna (2008) LPELR- 1740(SC); Oba Fasikun II V Oba Oluronke II (1999) LPELR-1248(SC); Anyanwu V Mbara (1992) LPELR-516(SC); Nwaezeme V Nwaiyeke (1990) LPELR-2092(SC); Ali V State (1988) LPELT-421(SC); Ayanwale V Atannda (1988) LPELR-671(SC); Ayowale V Ogunbiyi (1986) 4 SC 98.
Consequently, contrary to the assertion by the Appellant that the 1st Respondent failed to call credible evidence to establish the master/servant relationship between the Appellant and the 2nd Respondent, he actually did through the evidence of PW1, PW3 and PW7. A community reading and appraisal of the evidence of these witnesses unequivocally establishes this. The learned trial Judge meticulously evaluated this evidence and this culminated in his findings that there was a master/servant relationship established in the evidence before him to prove that the 2nd Respondent was an employee of the Appellant on the 16th and 17th October, 2006 when the acts culminating in the suit leading to this Appeal took place. I therefore find the learned
trial Judge’s reliance on the decision in Olarewaju V Afribank Nig. Plc (2001) 7 NSQR 22 at 24 for the three categories of employment classified by the apex Court quite apt and suited to the facts of the case. The categories are as follows:
(a) Master and servant;
(b) A servant holds office at pleasure; and
(c) Employment that is governed by statute;
Clearly, by the un-controverted evidence of PW1, the father of the 2nd Respondent, who was a witness to the cattle rearing oral agreement between the Appellant and the 2nd Respondent, the 2nd Respondent was an employee/servant of the Appellant, no more no less! I do so find. It is thus for all these reasons that I resolve issues one and three in favour of the 1st Respondent and against the Appellant.
Issue two:
Whether the learned trial Judge was not wrong and his decision liable to be set aside by this Court when he held that the two tortuous acts complained of by the 1st Respondent were actually committed by 2nd Respondent and within the scope of his employment with the Appellant, thereby holding the
Appellant vicariously liable for the said torts.
Under this issue, learned Counsel for the Appellant while proceeding on the presumption, but not conceding that the 2nd Respondent was an employee of the Appellant, submits that the 1st Respondent was still under an obligation to prove that:
(a) the torts were actually committed by the 2nd Respondent; and
(b) that the torts committed by the 2nd Respondent were committed within the scope of his employment with the Appellant.
He submits that the liability of the master is always predicated on the liability of the servant. The servant is the principle tortfeasor while the master is the accessory, as expressed in the Latin maxim, asscessorium non deceit sed sequitur suum principle. He contends that the 1st Respondent must therefore prove that the torts he complained of were actually committed by the principal tortfeasor. Counsel submits that the allegations against the 2nd Respondent are grievous allegations bordering on the commission of crimes of mischief, trespass, assault and causing grievous hurt to the 1st Respondent. Thus, that the burden of proof is not on a preponderance of
evidence, but on proof beyond reasonable doubt even though the case is civil in nature. He submits that the evidence adduced by the 1st Respondent did not prove these allegations against the 2nd Respondent as required by law and that the Appellant cannot therefore be held vicariously liable. He relies on Section 135 (1) of the Evidence Act, 2011; Akinu V Emulum Holdings Ltd (2006-2011) Vol. 7 SCJE 195 at 196-197; Ofodile V Onejeme (2012) All FWLR (Pt. 608) 946, paras A-B at 968; & Audu Otukpo V Apa John (2013) All FWLR (Pt. 661) 1509 at 1528, paras C-D.
Counsel further argues that apart from the 1st Respondent (as PW7), no other witness stated that he witnessed the incidents. He contends that the conduct of the 1st Respondent after his contact with the 2nd Respondent in his farm on 16-10-06 was not consistent with his allegations; that the 1st Respondent did not immediately report the farm incident of 16-10-06 to the police, village head or any other constituted authority; and that he failed to call the children hawking milk, who witnessed the attack of 17-06-06 on him, as witnesses.
Counsel therefore submits that the 1st Respondent failed to
prove his case against the 2nd Respondent either by proof beyond reasonable doubt or even on a balance of probabilities.
Additionally, Counsel submits that a person who is sued in a vicarious capacity cannot be held liable where the liability of the principal tortfeasor cannot be established. He contends that the learned trial Judge was consequently wrong in holding the Appellant vicariously liable for acts which had not been proved against 2nd Respondent. Reliance is placed on Management Enterprises Ltd V Otusanya (1987) 2 NWLR (Pt. 55) 179 at 181; & Obi V Biwater Shellbeer (Nig) Ltd (1997) 1 NWLR (Pt. 484) 722 at 736.
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Furthermore, Counsel submits that, assuming without conceding that the 2nd Respondent was an employee of the Appellant and that he was the one that committed the alleged torts, the question arises whether the 2nd Respondent could be said to have been acting within the scope of his employment with Appellant when he committed the alleged torts. He refers to the testimony of the PW1 under cross examination that the 2nd Respondent was employed by the Appellant to rear his cattle and not to fight. Also, that throughout the evidence of
PW7 and all other Plaintiff?s witnesses, there was no evidence of any threat to the Appellant?s cows by the 1st Respondent to warrant the 2nd Respondent?s attack on the 1st Respondent in protection of the said cows of the Appellant. It is therefore his contention that the 2nd Respondent, if he indeed attacked the 1st Respondent on his ranch as claimed, did so on a frolic of his own and not on the basis of his employment. He relies on BPE Nig Ltd V Roli Hotels Ltd (2006) ALL FWLR (Pt. 314) 238 at 276, paras D-E; Jarakanmi Transport Limited V Abeke 1963 All NLR 179 at 187; & Chukwu V Uheagbu (1963) 2 All NLR 642 at 645. He thus urged the Court to resolve this issue in favour of the Appellant.
In response, learned Counsel for the 1st Respondent agrees that the 1st Respondent’s claim against the Appellant is rooted in vicarious liability.
Referring to the decision of the Supreme Court in Ifeanyi Chukwu Co. Ltd V Saleh Boneh (Nig) Ltd (2000) 12 WRN 1 at 13, & 20-25, per Ogundare JSC, he submits that in order to prove that a master is vicariously liable for the acts of his servant, the Plaintiff:
1. must establish the
liability of the wrong doer;
2. prove that the wrong doer is a servant of the master, and
3. prove that the wrong doer acted in the course of his employment with the master.
Thus, he refers to paragraphs 4, 6, 11, 12, 13, 14, 15 and 16 of the Amended Statement of claim for the torts committed by the 2nd Respondent against the 1st Respondent, i.e.-
(1) trespass to the 1st Respondent’s farm by the 2nd Respondent and the destruction of the farm crops by the Appellant’s cows under his care and control; and
(2) physical assault on the 1st Respondent by the 2nd Respondent which led to the loss of his left eye.
Counsel urged the Court to uphold the findings of the learned trial Judge that the alleged trespass and the attendant destruction of his crops was wrong doing, as trespass alone in law even without damages, is actionable and damages recoverable. He relies on Oriorio V Osain (2012) 16 NWLR (Pt. 1327) 560. He submits that in the instant case, there was more than simple trespass since the 1st Respondent?s crops were destroyed in the course of the trespass and there was an unprovoked threat of a physical attack on
the 1st Respondent by the 2nd Respondent while on the guinea corn farm. Similarly, the act of the 2nd Respondent the next day, of abandoning the work he was doing, loosening the ropes tying the cows of the Appellant, to suddenly unleash another unprovoked physical attack on the 1st Respondent breaking his left eye, after uttering the following words in Fulfulde language: “Again this old man still follows me here, I will finish you”, was a wrongdoing. Counsel therefore contends that these two acts render the 2nd Respondent as the principal tortfeasor and the Appellant vicariously liable for his servant’s actions as his principal since they were done in the course of his employment.
Counsel further refers to the account of the incident as recounted by the 1st
Respondent (as PW7) that the assault on him, which resulted in blinding his left eye, was inflicted by the 2nd Respondent when he beat him with his cattle rearing stick, which stick was among other pieces of evidence tendered at the trial Court. It is submitted therefore that the acts complained of i.e. trespass into the 1st Respondent?s guinea corn farm and physical
assault on him which left his left eye broken and blinded, were actually committed by the 2nd Respondent, the principal tortfeasor in the course of his employment with and/or service of the Appellant.
Given the two scenarios of what transpired on the 16th and 17th October, 2006 and the 1st Respondent?s unshakable evidence that the 2nd Respondent and himself were the only people on the farm during the trespass, and given the fact that the physical assault on him that early morning was only witnessed by children who hawked milk and whom he could not possibly know, Counsel argues that the evidence of the PW1-PW7 was not irrelevant. He submits that they also testified on other relevant facts such as details of the treatment of the 1st Respondent?s injuries in hospital.
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Counsel submits that a Plaintiff need not call a village of witnesses to establish a fact or given sets of facts in his case. The credible evidence of a party or a witness is enough to establish a civil claim on a scale of probability. He also contests the submission that the Plaintiff needed to prove his claim beyond reasonable doubt. On the imputation of criminality of the
2nd Respondent?s acts made by the Appellant, Counsel submits that the answer is found in Ifeanyi V Soleh Boneh (Nig) Ltd (2000) 12 WRN 1, where it was held thus:
?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 criminal offence or a tortuous act committed by his servant while acting in the course of his employment…. This is what is known as the doctrine of vicarious liability which is based on the principle of law enunciated by Sir John Holt C. J. In Hern V. Nichole (C. 1700), I salk 289…. The doctrine means that one person takes the place of another so far as liability for the tort is concerned… It is the relationship of master and servant that of itself gives rise to this liability and not the old fiction that master has impliedly commanded his servant to do what he did… On the authorities as a whole, the master is liable though guilty of no fault himself.?
He relies also on Odutola V Maboguneje (2013) 7 NWLR (Pt. 1354) 522 at 530; & Agbi V Ogbeh (2006) 11 NWLR (Pt. 990) 65 at 89 to 90.
On whether the
2nd Respondent, (tortfeasor) acted in the course of his employment with his master the Appellant, Counsel submits that the 2nd Respondent was primarily employed by the Appellant to rear his cows on a settled consideration of one cow for every five months of service. The course of his employment was therefore the rearing of the Appellant?s cows. The wrongdoing of trespass to the 1st Respondent?s farm took place when the 2nd Defendant was rearing the Appellant?s cows. Similarly, the tort of an unprovoked assault by the 2nd Respondent on the 1st Respondent with his cattle-rearing stick at the cattle ranch, which resulted in the loss of the 1st Respondent?s left eye, took place as the 2nd Respondent was loosening the ropes of the Appellant?s cows at his cattle ranch.
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Additionally, Counsel refers to the evidence of PW1, who is the biological father of the 2nd Respondent, when he testified that the 2nd Respondent was engaged by the Appellant ?to look after his cows, not to trespass into people?s farm and not to fight any body.? He argues that this notwithstanding, the trespass into the 1st Respondent?s
guinea corn farm still took place in the course and within the scope of his employment, i.e. when and as the 2nd Respondent was rearing and tending the Appellant?s cows. He submits further that the assault
