NIGERIAN AGIP OIL COMPANY LIMITED v. MR PROPHET NWAKETI (2013)

NIGERIAN AGIP OIL COMPANY LIMITED v. MR PROPHET NWAKETI

(2013)LCN/6615(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of December, 2013

CA/PH/89/2006

 

JUSTICES

M. L. TSAMIYA Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

NIGERIAN AGIP OIL COMPANY LIMITED Appellant(s)

AND

MR. PROPHET NWAKETI Respondent(s)

RATIO

WHETHER OR NOT AN EMPLOYER IS LIABLE FOR THE WRONGFUL ACTS OF HIS EMPLOYEE AUTHORIZED BY HIM

The general disposition of the law is that an employer is liable for the wrongful acts of his employee authorized by him or for wrongful modes of doing authorized act if the act is one of 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 authorized 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 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 infact ratified by him. See R. O. IYERE v. BENDEL FEED & FLOUR MILL LTD (2008) 7 – 8 SC 151; (2008) 18 NWLR [pt.1119] 300 sc; citing with approval JAMES v. MID-MOTORS (NIG) Co. LTD (1978) 11 – 12 SC 31 at 68. PER EKO, J.C.A.

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): On 17th June, 2004 the appellant was ordered to pay the following sums to the respondent; i.e.:
i. N1,000,000.00 as general damages for the detention of the Plaintiff/Respondent for 4 hours in the defendant/appellant’s caravan.
ii. N2,000,000.00 general damages for detaining plaintiff/respondent at the Okwuze police station for 3 days.
iii. N5,000,000.00 general damages for malicious prosecution of the plaintiff/respondent at the Magistrate’s Court, Omoku in MCO/63C/96 for stealing.

Aggrieved by the judgment and the orders of the High Court of Rivers State (coram: E. N. T. Ebete, J) the appellant on 18th June, 2004, filed the notice of appeal at pages 90 – 92 of the Records of Appeal. The appellant paid N30.00 filing fee for the said notice of appeal.
The notice of appeal was filed under the 2002 Rules of this Court, which in Order 1, Rule 5 provides:
The fees set out in the Third schedule shall be payable in respect of matters to which they relate.
Under the said Third Schedule the fee payable for filing notice of appeal is N500.00. That is mandatory and a condition precedent for bringing an appeal under Order 3 Rule 5 of the same Rules. Rule 5 of Order 3 says that “an appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the court below”.
The balance of N450.00 was not paid within the period prescribed for bringing an appeal, or filing the notice of appeal, against the decision of the Rivers State High Court delivered on 17th June, 2004. The three months stipulated for filing appeal against that decision elapsed on or about 15th September, 2004. Upon effluxion of the period stipulated by Section 24 of the Court of Appeal Act and the appellant refusing, failing or neglecting to pay the correct fees prescribed by the Rules of this Court, the appeal brought on the notice of appeal filed on 18th June, 2004 became invalid and a nullity. It has to be struck out for being incompetent on the authority of MADUKOLU v. NKEMDILIM (1962) ALL NLR 357 which held that a court is competent to entertain a matter when, among others, the matter before it is initiated in accordance with the due process of law and upon fulfillment of all conditions precedent for the court to assume jurisdiction.

We have held in a number of cases including ENGR. IBEABUCHI v. IKPOKPO (CA/PH/406/2009 of 16th January, 2013; MGBENWA & ORS v. KINGSLEY NNAGU & NIG. AGIP OIL CO. LTD (CA/PH/515/2009 of 22nd November, 2013) that the payment of the correct and appropriate filing fee within the time prescribed for bringing an appeal is what gives a validity to the notice of appeal. See ONWUGBUFOR v. OKOYE (1996) 1 NWLR [pt.424] 252 SC; 7UP BOTTLING CO LTD v. YAHAYA (2001) 4 NWLR [pt.702] 47; ABIA TRANSPORT CO. v. QUORUM CONSORTIUM LTD (2009) 9 NWLR [pt.1145] 1. In other words, that a notice of appeal filed upon an inadequate filing fee is incompetent. We have no cause to depart from this rule. Consequently, this appeal being incompetent is hereby struck out.
I am enjoined to consider the merits of the appeal, as an intermediate court, in case I may be wrong in my stance that the appeal is incompetent.

The pleadings and evidence of the respondent, as the plaintiff, revolve round the malice pleaded in paragraphs 5, 6 and 7 of the statement of claim at pages 4-6 of the Record of Appeal. That is that the plaintiff was arrested, detained, harassed and prosecuted for theft solely because he refused to give the bribe demanded by Inspector Ezekiel Akpobasahan, Corporal Gerald Onyeze and others, said to be security men in the employment of the appellant, as defendant. They are said to be agents of the defendant/appellant as supernumerary police officers. The appellant submits that as supernumerary police officers the tortfeasors were not its staff or agents, but those of the Nigeria police Force.
I have read all the briefs exchanged in the appeal. The only issue in the appeal, in my firm belief, is whether an employer or principal would be vicariously liable for the misconduct of his agent amounting to a crime, which was committed outside the scope of their employment or authority? The plaintiff by his own showing alleged in the statement of claim in paragraphs 3, 4, 5, 6 and 7 as follows against the sole defendant, the appellant:
3 The plaintiff avers that on the 2nd day of February 1996 in the course of carrying on his business of iron scraps went into a bush at Ebocha in Egbema to pick pieces of iron scraps scattered all over in the bush by companies operating in the area.

4 The plaintiff avers that the pieces of iron scraps which the plaintiff went to pick from the bush at Ebocha were at all time material to this suit no longer useful for the companies operating in the area of Ebocha including the defendant.

5 The plaintiff avers that while he was still in the bush picking pieces of iron scraps Inspector Ezekiel Akpobsaahan, Corporal Gerald Onyeze and others attached to the defendant’s company as security men met the plaintiff in the bush and demanded money from the plaintiff in order to allow the plaintiff carry the pieces of iron scraps he had been gathering together.

6 The plaintiff further avers that Inspector Ezekiel Akpobasahan, Corporal Gerald Onyeze and Others were at all time material to this suit, under the employment of the defendant and acting in their official capacity and on behalf of the defendant even at the time they met the plaintiff in the bush picking pieces of iron scraps.

7. The plaintiff avers that when he refused to give Inspector Ezekiel Akpobasahan, Corporal Gerald Onyeze and others money as demanded by them, the plaintiff was taken to the defendant’s base at Ebocah where he was beaten up and falsely imprisoned by the said security men of the defendant.

The said super-numerary Police officers are not parties to this action. They are however the alleged agents of the appellant. The only liability of the appellant, as the sole defendant, is that being the principal of these tortfeasors, he (the appellant) is vicariously liable for the torts they committed against the plaintiff. The general disposition of the law is that an employer is liable for the wrongful acts of his employee authorized by him or for wrongful modes of doing authorized act if the act is one of 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 authorized 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 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 infact ratified by him. See R. O. IYERE v. BENDEL FEED & FLOUR MILL LTD (2008) 7 – 8 SC 151; (2008) 18 NWLR [pt.1119] 300 sc; citing with approval JAMES v. MID-MOTORS (NIG) Co. LTD (1978) 11 – 12 SC 31 at 68.
I do not think the crime of demanding bribe in order to compromise the employer’s business or property is within the scope of the employment of any staff or agent. Demanding and receiving bribes are offences against the general law of the realm. It is punishable under the Rivers State Criminal Code. It is also an economic crime under the Independent Corrupt Practices commission Act, and the Economic and Financial crimes Act. This crime is not capable of being ratified by an employer, if it is committed by his staff or agent. The facts of this case clearly show that the appellant, the alleged employer of the supernumerary policemen who allegedly committed the alleged torts, did not ratify or condone the misconduct of the supernumerary Police officers for which the learned trial held it vicariously liable for and awarded these huge sums as damages in damnation.
All I have been trying to say had eloquently been restated by Ogundare, JSC in IFEANYI CHUKWU (OSONDU) LTD v SOLEH BONEH LTD (2000) 5 NWLR [pt.656] 322 at page 15 A – D:
In summary, to succeed against the master the plaintiff must –
1. Establish the liability of the wrong doer, and prove
2. That the wrong doer is the servant of the master, and
3. The wrong doer acted in the course of his employment with the master. See YOUNG v. EDWARD BOX & CO LTD (1951) TLR 789; 793 where Lord Denning LJ said
In every case where it is sought to make a master liable for the conduct of his servant the first question is to see whether the servant was liable. If the answer is yes, the second question is to see whether the employer must shoulder the servant’s liability.
In view of all I have so far said I think the learned trial Judge was wrong in holding the appellant, the defendant, liable in the suit of the plaintiff/respondent and consequently awarding general damages, as he did, against the defendant/appellant. In holding the defendant/appellant liable in the suit of the plaintiff/respondent the learned trial Judge did not even once consider that the plaintiff’s cause of action and the evidence that were all predicated on the averments in paragraphs 5, 6 and 7 of the statement of claim, which averments and evidence disclose serious misconduct that smacks of a criminal offence against each of the supernumerary police officers mentioned therein.

As offering and taking of bribes cannot be part of the lawful business or objects of the defendant nor do they form part of the duties of the supernumerary Police officers at their duty post in the premises of the defendant/appellant; it is my considered view that the learned trial Judge wrongly held the defendant/appellant liable and awarded damages for the torts committed by the supernumerary police officers. The learned trial Judge had exercised his discretion wrongly. In this regard I would have allowed the appeal, on merits, if it were competent.
Since the appeal is not competent it is hereby struck out. That is the only order I can legitimately make in the circumstances.

M. L. TSAMIYA, J.C.A.: I agree.

MODUPE FASANMI, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother EJEMBI EKO, J.C.A.
I agree entirely with the reasoning and the conclusion that the appeal is not competent. It is also struck out by me.

 

Appearances

D. J. Irerhime Esq.For Appellant

 

AND

E. J. Nwachukwu Esq.For Respondent