EASTERN MASS TRANSIT LTD & ANOR v. OKONKWO
(2021)LCN/15127(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, March 11, 2021
CA/AW/707/2017
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
- EASTERN MASS TRANSIT LTD 2. MR. STEVEN AJAEGBO (The Manager, Eastern Mass Transit Ltd, Enugu Park, Awka) APPELANT(S)
And
BARR. RAYMOND OLOJIDEOFOR OKONKWO RESPONDENT(S)
RATIO
HOW TO ESTABLISH LIABILITY FOR VICARIOUS LIABILITY
Vicarious liability applies to employers for the tort of their employees in the course of their employment. To establish liability, it must be established that the person who committed the tort was an employee and that the employee was acting in the course of his employment when the tort was committed. See UNION BANK NIG LTD V AJAGU (1990) 1 NWLR PT 126 PG 328. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
POSITION OF THE LAW WHERE A RELATIONSHIP OF MASTER AND SERVANT IS SHOWN TO EXIST IN A CLAIM FOR VICARIOUS LIABILITY
Once it is established, as in this case that a relationship of Master and Servant exists between the 1st and Second Appellants, the Master becomes vicariously liable for the tort of his Servant. See CHUKWU V. SOLEL BONEH NIG LTD. (1993) 3 NWLR (PT. 280) PG. 246. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): This instant Appeal is a fall out from the Judgment of Anambra State High Court sitting in Awka in its Appellate jurisdiction in Suit No A/1A/2016, delivered on the 25th day of July, 2017 by D. A. ONYEFULU, J., wherein the learned trial Judge dismissed the Appeal and affirmed the decision of the trial Chief Magistrate.
SUMMARY OF RELEVANT FACTS: –
The Respondent herein was the Plaintiff at the Trial Magistrate Court. Being a Legal Practitioner, he appeared in person during the trial at the Magistrate Court as well as the High Court that heard the case in its Appellate jurisdiction.
The 1st Appellant is a Limited Liability Company engaged in transportation of people as passengers as well as goods.
The 2nd Appellant is the Manager of the 1st Appellant at Enugu Park, Unizik Junction, Awka.
The Respondent claimed that one Mr. Ifeanyi Nwaobi (sued as 3rd Defendant at the trial Court) battered and assaulted him on the 20th of January, 2009.
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The Respondent further averred that the said Ifeanyi Nwaobi was a staff of the 1st Appellant. This averment was however denied by the 1st Appellant through the 2nd Appellant who testified as DW1. He stated that the only link was that the father of Mr. Ifeanyi Nwaobi was the landlord of the 1st Appellant.
The story as presented by the Respondent was that he boarded one of the 1st Appellant’s buses at the said Enugu Park, Unizik Junction Awka for a journey to Enugu. While the bus was on its way to Enugu, one of the female passengers in the bus raised alarm that her money was missing and she started looking for the money. The driver of the vehicle was asked to stop so that the passenger could search for the missing money inside the vehicle. They then resorted to search every person in the bus. When the Respondent was about to be searched, he told them that he was a Lawyer on his way to Enugu to register a company with the Corporate Affairs Commission. That the said Ifeanyi Nwaobi started searching his wallet and beat him up, he was joined by some unnamed staff of the 1st Appellant. They called him a thief, molested and brutalized him in the presence of people. The Respondent also stated that the said Ifeanyi Nwaobi, the 2nd Appellant and others unnamed tortured him in
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the office of the 1st Appellant and prevented him from continuing his journey to Enugu. The money was later found at the door of the vehicle. The Appellants denied the foregoing.
In a considered Judgment delivered on the 31st day of August, 2015, the trial Chief Magistrate ordered the 1st Appellant to transmit a well-worded written apology to the Respondent within seven days from the date of Judgment, the 2nd Appellant was ordered to tender an oral apology to the Respondent while the Appellants were ordered to pay the sum of N550,000 (Five Hundred and Fifty Thousand Naira) as general damages to the Respondent.
This did not go down well with the Appellants who appealed to the High Court. The Respondent Cross-Appealed.
After hearing both parties, the learned Judge sitting in his Appellate jurisdiction, affirmed the Judgment of the trial Chief Magistrate and dismissed the appeal as well as the cross Appeal. This Appeal is a by-product of that Judgment.
Learned Counsel for the Appellants C. S. G. Anozie Esq distilled two issues for determination as follows:
1. “Whether there was any credible material on which the learned trial
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Judge at the lower Court relied upon to hold that the Trial Chief Magistrate applied the Principle of vicarious liability in his Judgment.
2. Whether the learned Judge at the lower Court was right in raising the issue of duty of care suo motu and resolving same without inviting the parties to address him on that issue.”
The Respondent Raymond Okonkwo Esq, who appeared in person on the other hand adopted the two issues formulated by Counsel for the Appellant.
Learned Counsel for the Appellants in his argument on the issues he raised, contended that there was no credible evidence before the lower Court that the 3rd Defendant at the trial Court was a servant or agent of the 1st Appellant in order to make it vicariously liable for the action of the said 3rd Defendant.
He posited that the fact that the incident complained about happened in the vehicle of the 1st Appellant does not make the Appellants liable for the act of the 3rd Defendant at the trial Court who was not proved to be a servant or agent of the 1st Appellant.
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Counsel argued that it was wrong to make the 2nd Appellant an alleged co-worker of the 3rd Defendant. He submitted that a co-worker is not vicariously liable under the law for the acts or omission of his fellow workers. He therefore urged the Court to allow the Appeal.
Reacting to the foregoing the Respondent submitted that there was enough evidence before the lower Court that the 3rd Defendant was a servant of the Appellants and that the Respondent has discharged the burden of proving that the 3rd Defendant was a servant of the Appellants.
He contended that the learned trial Judge at the lower Court did not raise the issue of duty of care suo motu. The duty of care Counsel argued, is said to arise immediately the Respondent entered the Appellants’ vehicle to convey the Respondent to his destination without being molested, assaulted, or battered by the Appellants, their staff or any other person. The lower Court, he submitted was therefore within the law to so hold.
Respondent opined that the incident not only happened in the vehicle of the Appellants, but also in their park in the presence of the Appellants.
He described the 2nd Appellant as the manager of the 1st Appellant and supervised the Company (Eastern Mass Transit Ltd) at Awka where the incident occurred.
He urged this Court to affirm the Judgment of the High Court.
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I shall make use of the two issues formulated by learned Counsel for the Appellants which issues were adopted by the Respondent. I shall take both issues together.
This Appeal revolves round the tort of vicarious liability. Vicarious liability applies to employers for the tort of their employees in the course of their employment.
To establish liability, it must be established that the person who committed the tort was an employee and that the employee was acting in the course of his employment when the tort was committed. See UNION BANK NIG LTD V AJAGU (1990) 1 NWLR PT 126 PG 328.
It is on Record that the 1st Appellant Eastern Mass Transit Ltd was the employer of the 2nd Appellant Mr. Steven Ajaegbo. Mr. Steven Ajaegbo was its Manager. Both parties are in agreement that the Respondent was their passenger on that fateful day.
The 2nd Appellant at the trial Magistrate Court admitted that the Respondent was accused of stealing the missing money and was assaulted. The 2nd Appellant admitted being at the scene, but did not participate in assaulting the Respondent.
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I agree with the Court below that once it is established that the Respondent was a passenger of the Appellants, they owe him a duty of care, which duty they failed to provide.
Once it is established, as in this case that a relationship of Master and Servant exists between the 1st and Second Appellants, the Master becomes vicariously liable for the tort of his Servant. See CHUKWU V. SOLEL BONEH NIG LTD. (1993) 3 NWLR (PT. 280) PG. 246.
There is no doubt that the Respondent suffered humiliation and was assaulted. He is therefore entitled to damages. Since this Appeal revolves on vicarious liability, duty of care goes with it. It is therefore not out of place for the lower Court to bring in the issue of duty of care while looking at the tort of vicarious liability. They are like siamese twins that cannot be separated in law. The learned Judge acting in his Appellate jurisdiction was well within the law to have suo motu brought the issue of duty of care. I agree entirely with him.
On the issue of General damages, the lower Court x-rayed the basis for the award of N550,000:00 (Five Hundred and Fifty Thousand Naira)
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awarded to the Respondent and came to the right decision that it was judiciously and judicially awarded being losses which are not capable of exact quantification.
In the premise, the two issues are resolved against the Appellants and in favour of the Respondent. This Appeal is bereft of merit, it is hereby dismissed in its entirety.
The Judgment of D. A. Onyefulu, J, of the Awka Division of the Anambra State High Court delivered on the 25th day of July, 2017 in Suit No A/1A/2016 is hereby affirmed.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, CHIOMA NWOSU-IHEME, J.C.A. gave me the privilege of reading this judgment before it was delivered. I agree with my learned brother and I dismiss the appeal. I abide by the consequential orders.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have read the lead judgment of my learned brother CHIOMA NWOSU-IHEME, J.C.A. just delivered.
I agree with his Lordship that this appeal is devoid of merit and should be dismissed. I accordingly dismiss the appeal.
I also affirm the decision of the trial lower Court.
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Appearances:
C. Anozie For Appellant(s)
Raymond Okonkwo appears in person For Respondent(s)
