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UMAR v. NPF & ORS (2021)

UMAR v. NPF & ORS

(2021)LCN/15787(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Wednesday, February 10, 2021

CA/K/129/2018

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

ALH. MOHAMMED NDAGI UMAR APPELANT(S)

And

1. THE NIGERIA POLICE FORCE 2. THE INSPECTOR GENERAL OF POLICE 3. THE COMMISSIONER OF POLICE KADUNA STATE 4. CONSTABLE AARON OGBUNU RESPONDENT(S)

 

RATIO

THE PRINCIPLE OF VICARIOUS LIABILITY

My lord, Sankey, JCA, relying on the decisions in Techno Mechanical Nig. Ltd vs. Ogunbayo (1999) LPELR-6960 (CA); Eseigbe vs. Agholor (1993) 9 NWLR (Pt. 316) 129; Quinn vs. Horsfall & Bickham Ltd (1956) 2 ALL ER 467; General Cleaning Contractors Ltd vs. Christmas (1953) A.C 189; Bacock vs. Brighton (1949) (1949) 1 K.B 339, speaking on the nature and basis for the doctrine of vicarious liability has held in Bello vs. Dadah (2016) LPELR-40337 (CA) Pages 38-39 that:
“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 infact 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 a tort feasor. The principle is that once there exist a master/servant relationship between an employer and a Tortfeasor, and it is established that the tort feasor committed the wrong complained of in the cause 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 trotfeasor 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 employee if he failed to provide the necessary controls by way of instructions and other steps to prevent on necessary risks to other employees…”
PER HUSSAINI, J.C.A.

THE PRINCIPLE OF VICARIOUS LIABILITY

The principle of vicarious liability is 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. See Bello V. Dadah & Anor (2016) LPELR-40337(CA) at Page 40-41 per Sankey JCA; Conoil V Solomon(2017) 3 NWLR Part 1551 Page 50 at 82 Para C-F Per Eko JCA (as he then was); BeksKimse Nig Ltd v Africa (2016) 1 NWLR Part 1494 Page 456 at 471 Para C-D per Ekpe JCA.
PER ADEFOPE-OKOJIE, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The appellant was the plaintiff in the action commenced by him at the Federal High Court, Kaduna Division vide the procedure for the enforcement of the right to life of his son, late Badamasi Abdullahi Umar.

By his Amended Motion on Notice, the appellant as applicant prayed the Court for a declaratory order or relief that the killing of late Badamasi Abdullahi Umar in cold blood at Gamji Gate in Kaduna on the 2nd June, 2012 by the 4th Respondent who was the agent and officer of the 1st, 2nd and 3rd Respondents was unlawful, illegal and a gross violation of the fundamental rights of the deceased (Badamasi Abdullahi Umar) as guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (as amended). The appellant by his prayers also sought for an award of damages in the sum of (two hundred million Naira) only as compensation/general damages for the killing of his son, Badamasi Abdullahi Umar. The application before the trial Court was predicated on that fact, i.e the unlawful killing of the subject aforesaid.

​The Motion on Notice, the affidavit in support and the amended and the verifying affidavit and the Written address of counsel which accompany the application were all served on the Respondents. The 1st – 3rd Respondents quickly filed a joint-counter affidavit with certain documents attached and marked as Exhibits in opposition to the Motion on Notice.

Prompted by the Counter-affidavit filed by or for the 1st – 3rd Respondents, the appellant filed a further affidavit in support of his application as at pages 80-83 of the record of appeal. For all intents and purposes the case before the Federal High Court, Kaduna Division, was fought on the affidavit evidence placed before it by the parties on both sides. The facts set out in the affidavit evidence are clear enough.

​On the 2nd June, 2012 the late Badamasi Abdullahi Umar was driving through Gamji Gate in Kaduna along with his friends in his car when he was accosted and shot with a rifle by the 4th respondent, Constable Aaron Ogbunu, who at that material time was at Gamji Gate on duty. One of the occupants in the car pulled a call through to late Badamasi’s father to intimate him that his son had been killed. The appellant quickly rushed to the scene and confirmed the killing of his son, Badamasi. He lodged a report at Police Station and thereafter instituted action at the Court below, which gave rise to this appeal.

From the perspectives of the Respondents, the fact are that the 4th Respondent while on an illegal duty mounted a road block contrary to the lawful signals, directives and police regulation shot and killed one Badamasi Abdullahi Umar, the son of the appellant hence the appellant commenced action at the Court below leading to this appeal.

As indicated before, this case was fought on the affidavit evidence supplied by parties on both sides and the Court below upon taking counsel’s arguments relative to the application seeking as it were, the application for the enforcement of the appellant’s fundamental right of son to right of life, delivered a Ruling/Judgment after taking counsel’s final addresses. The trial Court in its judgment upheld appellant’s son’s right to life by which it ruled was unjustifiably terminated by the 4th Respondent hence the Court by reason of that conduct, held that the 4th Respondent was in breach of the Constitutional provision provided for under Section 33(1) of the Constitution. The Court awarded the sum of N5,000,000.00 (Five Million Naira) only against the 4th Respondent as general damages, and by that order, exculpated the 1st – 3rd respondents of the acts/conduct of the 4th Respondent, whom the appellant had by the said application, was described as an officer and agent of the 1st – 3rd respondents.

It is worthy of note that the Court below, in the course of the evaluation of evidence before it had his own reason to hold that the act or conduct of the 4th respondent at the material time the incident took place cannot be said was done in the ordinary course of the employment of the 4th Respondent, given the fact that he had no authority of his employers to do what he did.

The appeal to this Court against those findings made at the Court below is vide the Notice of Appeal which the appellant filed on the 27th February, 2017 containing two (2) grounds of appeal (pages 107-110 of the record).

​Before us, the appellant and the 1st – 3rd respondent have filed and exchanged their briefs of argument. The appellant formulated three (3) issues in his brief for determination thus:
“(1) Whether the trial Court was right when it held that the appellant has an additional duty under the law to establish that for the 1st – 3rd Respondents to be vicariously liable for the killing of the Appellant’s son, the appellant had an additional burden to prove that they were instrumental to the killing of the deceased.
(2) Whether the trial Court was right when it refused to award the sum of N200,000.00 (Two hundred Million) only claimed by the Appellant against all the respondents as compensatory damages for the violation of the right to life of the Appellant’s son as guaranteed by and protected under Section 33 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
(3) Whether the trial Court was right when it awarded the sum of N5,000,000.00 (Five Million Naira only) as damages against the 4th Respondent only.”

The 1st – 3rd Respondent in their brief of argument, adopted all the three (3) issues formulated by the Appellants in his brief of argument at page 5, accordingly the parties and their counsel respectively, at the hearing of the appeal, adopted their briefs including the Reply brief.

From the submissions made by counsel respectively before us in their briefs of argument including appellant’s reply brief, deemed filed on 24th February, 2020, the live question which I think this Court is called upon to determine is whether the 1st – 3rd respondents can be held vicariously liable in so far as:-
“(1) The 1st – 3rd respondents did not authorize the act or conduct of the 4th respondent, who killed late Badamasi Abdullahi Umar.
(2) The act or conducts of the 4th respondent giving rise to this case, was not the lawful duty assigned to the 4th respondent by the 1st – 3rd respondents.
(3) The 1st – 3rd respondents did not in any way violate the appellant’s rights or his son’s right to life.”

That was the conclusion arrived at by the Court below and the question is whether this conclusion can be said was derived from the relevant paragraphs of the counter-affidavit of the 1st – 3rd respondents and the annexures attached to that counter-affidavit i.e Exhibits 1-5.

​At paragraph 6(a)-(j), are facts deposed which are to the effect that:
“6. That the true set of facts which came to my knowledge in the course of investigation is as follows:
(a) That on 03/06/2012, a case file dealing with a criminal allegation of Culpable Homicide involving the 4th Respondents, Ex-constable, Aaron Egbunu attached to Kabala Doki Division was transferred to State C.I.D by the DPO and was referred to my section for discreet investigation.
(c) That consequent upon the paragraph 6(b) above, the other Non Commissioned Officer NCO was reduced in Rank while the 4th Respondent was dismissed from the Police Force. Photocopies of the Dismissal Signals are annexed as Exhibit P1-P1(a).
(d) That the 4th Respondent was later arraigned before Chief Magistrate Court 6, Ibrahim Taiwo Road, Kaduna for Culpable Homicide and was remanded in prison custody. The F.I.R is annexed as Exhibit P2.
(e) That is response to the Applicant’s deposition in paragraph 8 of his affidavit in support, the 1st – 3rd Respondents admit same to the extent that they never gave the rifle with which the 4th Respondent allegedly killed the Applicant’s son.

(f) That in further response to the said Applicant’s deposition in paragraph 8 above, the 1st – 3rd Respondents aver that in line with extant regulation of the Police Force, the Rank of constable as in the instant case of the 4th Respondent do not bear arms in the Police Force neither did they issue him one. A copy of the Arms movement Register is annexed as Exhibit P3.
(g) That in response to the Applicant’s deposition in paragraphs 11, 12, 13, the respondent could not have killed the Applicant’s son on behalf of the 1st – 3rd Respondents to warrant the said letters referred to. Photocopy of the 4th Respondent’s Confessional Statement is annexed as Exhibit P4.
(h) That in further response to paragraphs 13 of the Applicant’s deposition, the 1st – 3rd Respondents aver that the 4th Respondent and others were never posted to check points nor road blocks since such duty were banned by the 1st and 2nd Respondents. The Signal from the 2nd Respondent to that effect is annexed as Exhibit P5.
(i) That the 4th Respondent and others were on a frolic of their own in outright disobedience to the said signal and are liable for any act of omission or commission arising there from.
(j) That the 1st – 3rd Respondents vehemently deny responsibility for the Applicant’s son death and not in a position to pay any compensation not to talk of N200,000,000.00 for that matter to the Applicant for the loss of his son as deposed to in paragraph 14 of his affidavit in support.”
See pages 61-62 of the record of appeal.

In the further affidavit in support of the application at pages 80-81 of the record, it was deposed at paragraph 2(b) 3, 4 and 6 that:-
“2(b) That paragraph 6(a) and 6(b) confirms that the 4th Respondent was an officer of the 2nd Respondent and was on duty on the fateful day which contradicts paragraph 6(j).
(3) That the 4th respondent used the 2nd respondent gun to violate the right to life of the applicant’s son and as an officer in the 1-3 has made the visas only liable for his wrongful act or conduct.
(4) That the 1st – 3rd Respondent found the action of the 4th Respondent as reprehensible and dismissed him from their employ after finding him culpable for taking the life of the applicant’s son.
XXX
(6) That the 4th Respondent as an officer and agent of the 1st – 3rd Respondent extends liability of his wrongful act to his principle for the act committed under duty.”

My lord, Sankey, JCA, relying on the decisions in Techno Mechanical Nig. Ltd vs. Ogunbayo (1999) LPELR-6960 (CA); Eseigbe vs. Agholor (1993) 9 NWLR (Pt. 316) 129; Quinn vs. Horsfall & Bickham Ltd (1956) 2 ALL ER 467; General Cleaning Contractors Ltd vs. Christmas (1953) A.C 189; Bacock vs. Brighton (1949) (1949) 1 K.B 339, speaking on the nature and basis for the doctrine of vicarious liability has held in Bello vs. Dadah (2016) LPELR-40337 (CA) Pages 38-39 that:
“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 infact 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 a tort feasor. The principle is that once there exist a master/servant relationship between an employer and a Tortfeasor, and it is established that the tort feasor committed the wrong complained of in the cause 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 trotfeasor 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 employee if he failed to provide the necessary controls by way of instructions and other steps to prevent on necessary risks to other employees…”
​From the affidavit evidence supplied by parties on both sides it is evident that the 4th Respondent was in the employment of the 1st – 3rd respondents at the material time the incident involving the killing of the son of the appellant took place. The 4th Respondent was the doer. There is thus a master/servant or master/employee relationship between them. In other words at that material time, the 1st – 3rd respondents had the vires to exert control and superintend over the conduct of the 4th Respondent and that is why, the 1st – 3rd respondent subjected the 4th Respondent to Orderly Room trial which led to him (4th Respondent) being dismissed from service as a police man after the occurrence of the incident of the 2/6/2012, but more importantly, bearing in mind the master/servant relationship between them i.e 1st – 3rd respondents on the one side and the 4th respondent on the other, the question should then be asked how the former exerted control or superintend over the day to day official activities of the former (4th Respondent). I do not think it is sufficient as alleged by the 1st – 3rd respondents that they issued signals and guidelines to all police formations, of information covered by Exhibits 1-5 attached to the counter-affidavit. It is not being denied that the rifle used by the 4th respondent on that fateful day belong to the 1st – 3rd Respondents.

The question now is how did that rifle get to him (4th Respondent) at the time he was assigned the duty of that day. This is where the question of effective control and supervision of the 4th respondent by the 1st – 3rd respondents comes in. The latter, to my mind should be held vicariously liable for the acts and conduct of the 4th respondent whose acts or conduct led to the killing or death of Badamasi Abdullahi Umar on the 2nd June, 2012.
In coming to this conclusion I am not unmindful of the considerable difficulties attendant to the doctrine of vicarious liability, hence each case has to be considered and determined on its own perculiar facts. In the case of Goh Choon Song vs. Lee Kim Soo (1925) A.C 550, the Privy Council held that an employer is responsible for damage caused by the negligent act of his servant in the course of performing the duties of his office even if the act incidentally involves a trespass which the employer has not authorised. That Court, in the course of its judgment gave a classification of possible cases of master/servant relationship into 3 categories thus:- (1) the first case is where the servant was reported to be “using his master’s place, or his master’s horses, vehicles, machinery or tools for his own purposes. Then the master is not responsible. (2) Under the second head are cases where the servant is employed only to do a particular work or a particular class of work, and he does something out of scope of his employment. Again, the master is not responsible for any mischief which he may do to a third party. Under head (3), where the servant is doing some work which he is appointed to do, but does it in a way which his master has not authorised and could not have authorised, had he known of it. In those cases, the master is, nevertheless responsible. See:-Jarmakam Transport Ltd vs. Madam Wule Maifu Abeke (1963) LPELR-25398 (SC).
The third classification or category set out above equally applies to the case on hand. I am of the view that the 1st – 3rd respondents are vicariously liable for the conduct of the 4th Respondent. I hold. In effect the appeal succeeds on this point and same is allowed.

On the issue of compensation, I take note of the pains the appellant suffered for the loss of his son, Badamasi Abdullahi Umar resulting from the acts of the 4th respondent, of which, by this judgment the 1st – 3rd respondent, are also held vicariously liable. Consequently, the sum of N10,000,000.00 (Ten Million Naira) only is assessed against them i.e. (1st – 4th respondents) jointly and severally as compensatory damages for the loss, in favour of the appellant.

In effect, the judgment or Ruling of the Federal High Court delivered on the 4th November, 2016 is set aside and in its place is entered this judgment.
I so order.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother SAIDU TANKO HUSSAINI, JCA. I agree.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, Saidu Tanko Hussaini, JCA, where the facts leading to this appeal have been succinctly set out. I am in entire agreement with my learned brother’s reasoning and conclusions.

From the submissions made by counsel respectively before us in their briefs of argument, the question which this Court is called upon to determine is whether the 1st – 3rd Respondents can be held vicariously liable,as:-
“(1) The 1st – 3rd Respondents did not authorize the act or conduct of the 4th Respondent, who killed late Badamasi Abdullahi Umar.
(2) The act or conducts of the 4th Respondent giving rise to this case, was not the lawful duty assigned to the 4th Respondent by the 1st – 3rd respondents.
(3) The 1st – 3rd Respondents did not in any way violate the Appellant’s rights or his son’s right to life.”

I agree with my learned brother on the vicarious liability of the 1st -3rd Respondents for the act of the 4th Respondent on the day in question.

The principle of vicarious liability is 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. See Bello V. Dadah & Anor (2016) LPELR-40337(CA) at Page 40-41 per Sankey JCA; Conoil V Solomon(2017) 3 NWLR Part 1551 Page 50 at 82 Para C-F Per Eko JCA (as he then was); BeksKimse Nig Ltd v Africa (2016) 1 NWLR Part 1494 Page 456 at 471 Para C-D per Ekpe JCA.
It is not denied that the rifle used by the 4th Respondent on the day in question belonged to the 1st – 3rd Respondent. As observed by my learned brother, the question how did the rifle got to him (4th Respondent) at the time he was assigned the duty this being where the question of effective control and supervision of the 4th Respondent by the 1st – 3rd Respondent comes in.
Indeed, it was held by the Supreme Court in the age old case of C.F.A.O. v. IKPEAZU (1966)1 SCNLR 180 that an express prohibition may not avail the employer.
The Supreme Court held:
“It is a well-established principle of law that a master cannot escape liability for the servant’s wrongful acts committed in the course of the servant’s employment merely because he expressly prohibited the act – Limpus v. General Omnibus Co. Ltd. (1862)7 L.T. (N.S.) 641; the essential question is this: was the act committed in the course of the servant’s employment? If it was, it does not matter that as between the servant and the master, the former was prohibited from doing the act in question. Undoubtedly an express prohibition by the master may, however, limit the scope of the servant’s employment. On the same principle, a principal is liable for the acts of his agent done within the scope of his authority…”
Underlining Mine
​In Iko v John Holt and Co Ltd (1957) SCNLR 107 the same Court held:
“It is well settled that a master is liable for the tortuous acts of his servant committed within the scope of his authority whether they are for the benefit of the master or for the benefit of the servant. Lloyd v. Grace Smith & Co. (1912) AC 716, Swire v. Francis (1877) 3 AC 106.
No doubt every employer will seek to distance itself from any tort perpetrated by its servant, which is why the law holds it responsible for tortuous acts of its servant committed within the scope of his authority, whether they are for the benefit of the master or not or in disobedience of the master’s instructions. Once it is committed in the course of the servant’s employment, the master is rendered liable, I hold.

​I accordingly agree with my learned brother’s conclusion holding the said Respondents vicariously liable for the acts of the 4th Respondent.
I also allow this appeal and concur with the orders made by my learned brother.

Appearances:

Yakubu Hussai, Esq. with him, A. I Muhammad, Esq. For Appellant(s)

J. O. K Irikefe, Esq., with him J. S Zira, Esq., F. I. Gandu, Esq., R. Y Emmanuel, Esq., R. Y Emmanuel., and B. N Aun, Esq. – for 1st -3rd Respondents. For Respondent(s)