OWOYELE & ORS v. MOBIL PRODUCING (NIG) UNLTD
(2020)LCN/15330(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, July 23, 2020
CA/L/64/2011
Before Our Lordships:
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
1. PATRICK OWOYELE 2. EARLITON NIG. LTD 3. PACRACO NIG. LTD APPELANT(S)
And
MOBIL PRODUCING NIGERIA UNLIMITED RESPONDENT(S)
RATIO
THE ESSENTIAL ELEMENTS OF ACTIONABLE NEGLIGENCE
The essential elements or ingredients of actionable negligence have been settled beyond peradventure by a glut of judicial decisions. The elements or ingredients are:
1. The existence of a duty to take care owed to the claimant by the defendant
2. Failure to attain the standard of care prescribed by law (breach of the duty)
3. Damages suffered by the claimant, which must be connected with the breach of the duty to take care.
Once these ingredients are established at a hearing, the defendant will be held liable in negligence. See MAKWE vs. NWUKOR (2001) LPELR (1830) 1 at 20-21, AGBONMAGBE BANK LTD vs. CFAO (1966) LPELR (25282) 1 at 10, BRITISH AIRWAYS vs. ATOYEBI (2014) LPELR (23120) 1 at 64-65, UTB vs. OZOEMENA (2007) LPELR (3414) 1 at 14, NGILARI vs. MOTHERCAT LTD (1999) LPELR (1988) 1 at 35 and ABUBAKAR vs. JOSEPH (2008) LPELR (48) 1 at 31. PER OGAKWU, J.C.A.
WHETHER A FINDING OF A COURT NOT CHALLANGED ON APPEAL REMAINS BINDING
It is abecedarian law that the finding of a Court which has not been challenged on appeal remains binding and its correctness cannot be questioned. See COMMERCE ASSURANCE LTD vs. ALLI (1992) 3 NWLR (PT 232) 710, YESUFU vs. KUPPER INTERNATIONAL (1996) 5 NWLR (PT 446) 17, P. N. UDOH TRADING CO. LTD vs. ABERE (2001) 11 NWLR (PT 723) 114 at 146, OLUKOGA vs. FATUNDE (1996) LPELR (2623) 1 at 8, FBN PLC vs. OZOKWERE (2013) LPELR (21897) 1 at 20 and FIRST DEEPWATER DISCOVERY LTD vs. FAICECK PETROLEUM LTD (2020) LPELR (49783) 1 at 27. PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal arises from the flimflam meted out to the Appellants on a phantom contract for the supply of mobile phones to the Respondent. The Appellants, contending that they suffered losses and damages on account of this hornswoggle, instituted proceedings before the High Court of Lagos State in SUIT NO. LD/1522/2004: PATRICK OWOYELE & ORS vs. MOBIL PRODUCING NIGERIA UNLIMITED & ANOR. The Appellants claimed the following reliefs:
“The sum of ONE HUNDRED AND FIFTY MILLION NAIRA (N150 MILLION), being special and general damages against the defendants jointly and severally which damages the plaintiffs incurred due to the misrepresentation and negligence of the defendants.”
In fealty to the prescriptions of the adjectival law, the action at the lower Court was tried on the pleadings filed and exchanged by the parties. At the end of the trial, the lower Court dismissed the Appellants’ case in its entirety. Piqued by the said decision, the Appellants appealed against the same by their Notice of Appeal dated 24th December 2010. The chafed decision of the lower Court which was delivered on 29th September 2010 is at pages 153-167 of the Records while the Notice of Appeal is at pages 168-172 of the Records.
The Records of Appeal and Additional Records were compiled and transmitted and the parties filed and exchanged briefs of argument. The Appellants’ Brief was filed on 23rd April 2019, while the Respondent’s Brief was filed on 31st May 2019. The Respondent filed a Notice of Intention to contend that the judgment of the lower Court should be affirmed on grounds other that those relied upon by the lower Court hereafter (Notice of Contention). The said Notice of Contention which was filed on 26th January 2011 was argued in the Respondent’s Brief.
The Appellant formulated three issues for determination in the appeal, namely:
“1. Whether the Respondent is not guilty of negligence in the circumstances of this case? – Ground 1,
2. Whether the Respondent does not owe the Appellants a duty of care to protect its premises, vehicle and security guards from being used by fraudsters to perpetrate fraud? Grounds 2 &3;
3. Whether there was no negligent misrepresentation by the Respondent for allowing its premises, vehicle and security guards to be used to defraud innocent citizens? Ground 4.”
On its part, the Respondent crafted a solitary issue for determination, scilicet:
“Whether there is any relationship between the Appellant and the Respondent to sustain any nature of enforceable duty of care or claim for negligence by the Appellants against the Respondent?”
I will shortly review the submissions of learned counsel based on the issues as distilled by them and then seamlessly resolve the appeal en bloc. However, let me deal with the Respondent’s Notice of Contention first.
RESPONDENT’S NOTICE OF CONTENTION
The Respondent submits that the lower Court having held in an earlier Ruling that part of Appellant’s claim was exposed to illegality, ought to have dismissed the Appellants’ entire suit on the same ground of illegality since a Court cannot lend its assistance to illegality. It was maintained that since the lower Court found that illegality was evinced, it was not necessary to merely remove the area bordering on illegality before adjudging the remaining aspects because the illegality overrides all other aspects of the pleadings. The cases of SODIPO vs. LEMMINKAINEN OY (1986) 1 NWLR (PT15) 220 and UAC vs. MACFOY (1962) AC 152 at 162 were relied upon.
The Appellants did not file any Reply Brief so they did not proffer any submissions on the Respondent’s Notice of Contention. The fact that the Appellants did not proffer any submission does not connote that the Respondent’s submissions are correct, neither does it mean that the Respondent’s Notice of Contention must perforce succeed. The Respondent must still succeed on the strength of the argument it proffered and the Court is still obligated to determine the validity of the argument, notwithstanding that the Appellants did not proffer any alternative or contrary submissions. SeeJOHN HOLT VENTURES vs. OPUTA (1996) 9 NWLR (PT 470) 101, ECHERE vs. EZURIKE (2006) ALL FWLR (PT 323) 1597 at 1608, UNITY BANK PLC vs. BOUARI (2008) LPELR (3411) 1 at 24-25, MAMAH vs. AGBO (2015) LPELR (40671) 1 at 17-19 and OFULUE II vs. OKOH (2014) LPELR (23218) 1 at 15.
Now, a Respondent’s Notice of Contention for a decision to be affirmed on grounds other than those relied on by a Court is not for use in a situation where the respondent wants to ask for a complete reversal of the findings that are not in his favour. It is resorted to where the position of the respondent is that there is evidence on record which can sustain the judgment on grounds other than those relied upon by the Court. The Respondent’s Notice of Contention postulates the correctness of the judgment. Where the respondent seeks to have a finding or decision of the Court reversed or set aside, the appropriate procedure is to file a cross appeal. See generally AMERICAN CYANAMID COMPANY vs. VITALITY PHARMACEUTICALS LTD (1991) 2 NWLR (PT 171) 15 or (1991) LPELR (461) 1 at 23-24, SUNMONU vs. ASHOROTA (1975) 1 NMLR 16, LAGOS CITY COUNCIL vs. AJAYI (1970) 1 ALL NLR 291, AFRICAN CONTINENTAL SEAWAYS LTD vs. NIGERIAN DREDGING ROADS AND GENERAL WORKS LTD (1977) 5 SC 235, BRIGGS vs. BOB-MANUEL (2003) 1 SCNJ 218 at 227, ABIC (NIG) LTD vs. ECOBANK (NIG) PLC (2010) LPELR (3566) 1 at 11-12 and OTIGBAH vs. UWANAKA (2020) LPELR (49539) 1 at 11-13.
The ground relied on by the Respondent as set out in the Respondent’s Notice of Contention is that:
“The claims of the Appellants are founded on diverse actions and or facts founded on illegality as sumptuously admitted and or reflected in their pleadings. Accordingly, this suit was completely incompetent from the outset as you can not [sic] put something on nothing and expect it to stand – exturpi causa oritur non actio as in the locus classicus of UAC V MCFOY (1962) AC 152, 160.”
The Respondent anchored its contention on the earlier Ruling of the lower Court, that a part of the Appellants’ claim was exposed to illegality whereupon it dismissed that part of the Appellants’ claim. The said Ruling of the lower Court which was delivered on 6th April 2006 is at pages 72-76 of the Records. There was no appeal against the said Ruling. It is the contention of the Respondent that the illegality pervades the entire action filed by the Appellants and that the lower Court in its judgment should have dismissed the entire action on grounds of illegality.
It is necessary to properly contextualize the Ruling of the lower Court on which the Respondent has founded its Respondent’s Notice of Contention. Upon being served the originating processes, the Respondent filed a preliminary objection contending that the lower Court lacked jurisdiction to entertain the action as the foundation of the cause of action was tainted with illegality, thereby making the suit incompetent. So by the preliminary objection the Respondent sought to scuttle the hearing of the entire action in limine on grounds of illegality. The Respondent did not succeed in its quest as the lower Court conclusively held as follows at page 75 of the Records:
“It is indeed true that all transactions emanating from illegality are rendered void …
The law is that once a Court or judge becomes aware of illegality, it is the duty of the Court to dismiss the claim for being enforceable and void…
I, for this reason, dismiss the claim for the sum of N10 Million being money given for mobilization.
The claim of the Claimants is however not only about the ‘mobilization’ fee paid but other damages suffered by the Claimant.
It would be unjust to the Claimant, I hold, to dismiss his entire claim because of one claim which I have held to be illegal. The other claims I hold are justiciable.
I accordingly allow the preliminary objection in part, striking out the claim for N10 Million (Ten Million Naira) for ‘mobilization’ fee. I however refuse to strike out the entire suit, and hold that this Court has jurisdiction, save as aforesaid, to entertain this suit.”
So the Respondent’s preliminary objection succeeded in part as the lower Court declined to strike out the entire suit as hankered after by the Respondent. The Respondent did not appeal against the said Ruling of the lower Court declining to strike out the entire suit even after it had held that part of the Appellants’ claim was tainted by illegality. The Respondent’s Notice of Contention seeks to reverse the decision of the lower Court that the illegality on the basis of which it dismissed part of the Appellants’ claim was not deserving of defeating the entire action as the other reliefs claimed were justiciable. This cannot be achieved by a Respondent’s Notice of Contention. The option open to the Respondent, if it strongly felt that the illegality pervaded the entire action and ought to have led to the dismissal of the entire action, was to appeal against the said Ruling. But it did not. It is an appeal that is the appropriate procedure to achieve that goal, not a Respondent’s Notice of Contention to affirm: AFRICAN CONTINENTAL SEAWAYS LTD vs. NIGERIAN DREDGING ROADS AND GENERAL WORKS LTD (supra), ELIOCHIN NIG. LTD vs. MBADIWE (1986) 1 NWLR (PT 14) 47, ORO vs. FALADE (1995) 5 NWLR (PT 398) 385, COUNTY & CITY BRICKS DEVELOPMENT COMPANY LTD vs. MKC NIGERIA LTD (2019) LPELR (46889) 1 at 8-11 and OTIGBAH vs. UWANAKA (supra). The Respondent’s Notice of Contention is therefore incompetent and it will not play any part in the consideration of the appeal. We segue to the merits of the appeal.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that it is the duty of the trial Court to evaluate the evidence vide CPC vs. INEC (2011) 18 NWLR (PT 1279) 493 at 537-538, but that the lower Court failed in its duty by not considering the totality of the evidence on the material issues. It was posited that the Respondent was negligent because its office premises was used to defraud the Appellants. It was maintained that the Respondent’s gross negligence resulted in financial loss to the Appellants. The cases of ANDREWS vs. DPP (1937) AC 576 at 583, RUDDELL vs. REID (1943) AC 1 at 31 and PENTECOST vs. LONDON DISTRICT AUDITOR (1951) 2 KB 759 at 764 and 766 were referred to.
The Appellants opine that the Respondent was negligent by allowing its office at Eketto be used to perpetrate fraud, as negligence is the omission to do something which a reasonable man would not do. The case of OJO vs. GHARORO (2006) LPELR-SC 2383 or (2006) 10 NWLR (Pt 987) 173 was relied upon. It was asserted that the Respondent was negligent by allowing its premises, vehicles, offices and telecoms to be used to perpetrate fraud.
The apercu of the Appellants’ submission on the second issue they distilled is that the duty of care connotes a relationship by which obligation is imposed upon one person for the benefit of another to take reasonable care. This was said to arise from proximity or neighbourhood such that it would be contemplated that carelessness in such situations may cause damage to another. The cases of IMNL vs. NWACHUKWU (2004) LPELR-SC 132/2000 and ANYAH vs. IMO CONCORDE HOTELS LTD (2002) 12 SC (PT II) 17 were called in aid.
It was stated that where the duty of care is breached and injury occasioned, damages for negligence will be incurred. The cases of A-G LAGOS STATE vs. EKO HOTELS LTD (2006) NWLR [no volume stated] (PT 1011) 378 and BELLO vs. A-G OYO STATE (1986) LPELR-SC 104/1985 were cited in support. It was asserted that the Respondent omitted to checkmate the use of its premises, vehicles, offices and telecommunication gadgets by its staff and security guards to perpetrate fraud. It was posited that the Respondent usually advertised tenders for contracts and that it should have taken precautionary measures by informing the general public that it did not advertise for any tender for the supply of mobile phones vide NGILARI vs. MOTHERCAT LTD (1999) LPELR – SC 223/199.
Arguing their third issue, the Appellants submit that the representation was made that the Respondent issued tender for the supply of mobile phones for its staff and that Appellants, relying on the said negligent misrepresentation, borne out by the use of Respondent’s premises and vehicle, suffered financial losses. The cases ofCARTER vs. BOEHM (1766) 3 BURR 1905, REDGRAVE vs. HURD (1881) 20 Ch. D 1, DERRY vs. PEEK (1889) UKHL 1, ROYSCOT TRUST LTD vs. ROGERSON (1991) 3 WLR 57, among other cases were referred to.
The Appellants assert that the Respondent was vicariously liable for the acts of its staff which gave the impression that the Respondent was being actually represented vide LAUNCHBURY vs. MORGAN (1971) 2 Q. B. 245 at 252. It was stated that an act can be regarded as done in the course of employment when the employee engaged in activity that is incidental to the work he is employed to do and when going about business which concerns the employee and employer. The driver of the Respondent’s vehicle, the security officer who allowed the Respondent’s vehicle and premises to be used to perpetrate fraud, were said to have made the Respondent liable to damages. The cases of COMPTON vs. McCLURE (1975) I. C. R. 378, KAY vs. I. T. W. LTD (1968) 1 Q. B. 140, LAYCOCK vs. GRAYSON (1939) 55 T. L. R. 698 among other cases were relied upon.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the lower Court duly considered all the evidence adduced and rightly held that there was no duty of care between the Appellants and the Respondent, and that the Appellants did not prove any case of negligence against the Respondent. It was opined that negligence is a question of fact not law and that each case is decided on its own facts and circumstances. The case of UTB vs. OZOEMENA (2007) 1 SC (PT II) 212 at 221 was called in aid.
It was contended that the Appellants’ witness admitted that the Appellants had no relationship or business with the Respondent and therefore a duty of care cannot accrue to the Appellants, who are self-confessed strangers as the proximity required by law is non-existent. The cases of KANU AND SONS & CO vs. FIRST BANK PLC (2006) 5 SC (PT III) 101, IMNL vs. NWACHUKWU (2004) 6-7 SC 88 at 102, WEMA BANK vs. BBC BROWN BOVERI NIG LTD (1996) 6 NWLR (PT 454) 364 at 381 and Charlesworth & Perryon Negligence, 10th Edition, Sweet & Maxwell, page 258, paragraph 2-03 were referred to.
The Respondent asserted that the lower Court held that the person that the Appellants dealt with were employers of independent contractors, and that the Appellants met with them in a premises that was not under the control of the Respondent; which finding the Appellants did not challenge. It was contended that the Respondent can therefore not be vicariously liable for the employees of the independent contractors vide Charlesworth & Percy (op. cit.) pages 166-167, Winfield and Jolowicz on Tort, 16th Edition, Sweet & Maxwell, page 733 para. 20.28 and the cases of HARD vs. IDLE DISTRICT COUNCIL (1896) 1 Q.B. 335 at 340, THOMPSON vs. ANGLO-SAXON PETROLEUM CO. LTD (1955) 2 Lloyds Rep. 363 and PICKARD vs. SMITH (1861) 10 C.B. (N.S.) 470 at 480. It was maintained that where the independent contractor or his servant goes outside the purview of the work agreed or contemplated by the employer, the employer cannot be vicariously liable for the liabilities of the independent contractor or his servant.
It is the further submission of the Respondent that the lower Court was correct in holding that the Respondent was not liable for negligent misrepresentation as the Appellants had no neighbourly relationship with the Respondent from which a duty of care would arise, which duty may be breached and from which damages may arise, if proved. The case of ANYAH vs. IMO CONCORDE HOTELS LTD (2002) 12 SC (PT II) 17 was cited in support. It was posited that the duty of care does not extend to strangers that a defendant has never heard about and therefore could not have contemplated. The cases of CANDLER vs. CRANE CHRISTMAS & CO (1951) 2 KB 164, ULTRAMARES CORPORATION vs. TOUCHE (1931) 174 NE 44, HEDLEY BYRNE & CO LTD vs. HELLER & PARTNERS LTD (1964) AC 466, JAMES McNAUGHTON PAPERS GROUP LTD vs. HICKS ANDERSON & CO. (1991) ALL R 134, Winfield & Jolowicz (op. cit.) para 11.23 & 11.25 and Source Book on Torts; Graham Stephenson, 2nd Edition, Cavendish Publishing Ltd.pg 305were relied upon. It was conclusively submitted that the Appellants’ complaint was about the acts of staff of independent contractors, supernumerary police (SPY) and for things done on premises or with vehicles that were not under the control or management of the Respondent. The lower Court it was asserted properly evaluated the evidence and dismissed the Appellants’ case as the Appellants had no relationship with the Respondent.
RESOLUTION
The Appellants’ cause of action at the lower Court was predicated on the tort of negligence. The Appellants contention is that on account of negligent misrepresentation it suffered losses and damages. The essential elements or ingredients of actionable negligence have been settled beyond peradventure by a glut of judicial decisions. The elements or ingredients are:
1. The existence of a duty to take care owed to the claimant by the defendant
2. Failure to attain the standard of care prescribed by law (breach of the duty)
3. Damages suffered by the claimant, which must be connected with the breach of the duty to take care.
Once these ingredients are established at a hearing, the defendant will be held liable in negligence. See MAKWE vs. NWUKOR (2001) LPELR (1830) 1 at 20-21, AGBONMAGBE BANK LTD vs. CFAO (1966) LPELR (25282) 1 at 10, BRITISH AIRWAYS vs. ATOYEBI (2014) LPELR (23120) 1 at 64-65, UTB vs. OZOEMENA (2007) LPELR (3414) 1 at 14, NGILARI vs. MOTHERCAT LTD (1999) LPELR (1988) 1 at 35 and ABUBAKAR vs. JOSEPH (2008) LPELR (48) 1 at 31.
An important consideration that arises in an action founded on negligence is whether as between the alleged wrongdoer (in this case, the Respondent) and the person who has suffered damages (the Appellants herein), there is sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former, carelessness on his part may likely cause damage to the latter: ABUBAKAR vs. JOSEPH (supra) and ABUSOMWAN vs. MERCANTILE BANK OF NIG LTD (1987) 3 NWLR (PT 60) 196 or (1987) 6 SC 303. The Appellants contention on the establishment of this relationship of proximity or neighbourhood on account of which the Respondent owed them a duty of care is that the fraud perpetrated on them took place in the Respondent’s premises and offices and was perpetrated by the staff and security personnel of the Respondent, utilising the Respondent’s vehicles and telecommunication gadgets. For this duty of care to arise in the diacritical circumstances of this matter, it has to be established on the evidence that the Appellants, in fact, dealt with the staff of the Respondent and that the vehicles, office, premises and security personnel allegedly used to perpetrate the fraud were within the control and management of the Respondent. It is upon the existence of the duty of care being established and the breach of the same, that the Appellants would be entitled to damages if the same is proved. As stated by Karibi-Whyte, JSC in ABUSOMWAN vs. MERCANTILE BANK OF NIG. LTD (1987) 6 SC 303 at 335, the duty arising from proximity in law or fact is a condition precedent for liability in negligence.
By way of a hiatal, let me state that facts are the fountainhead of the law. The decision in a case is intimately related to the facts that induced the decision. Where the facts of a given matter are different from the decision in an earlier case, it will be pulling the ratio in the earlier case out of context and giving it a general application if it is sought to apply the decision to totally different facts. As stated by Oputa, JSC in ADEGOKE MOTORS LTD vs. ADESANYA (1989) 5 SC 92 at 100:
“It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts.
… that Court’s decisions and pronouncement derive their strength, their persuasive potency, their inspiration and therefore their value as precedent from the facts of the case as pleaded and as presented.”
The principle laid down in the cases relied upon by the Appellants will only be applicable where the diacritical facts of this matter are the same as the facts that induced the decision in the said cases, due regard being had to the findings and decision of the lower Court. Hear Oputa, JSC in FAWEHINMI vs. NBA (NO. 2) (1989) 2 NWLR (PT 105) 558 at 650:
“Our law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the Courts in like or similar cases. The facts of two cases must either be the same or at least similar before the decision in the earlier case can be used in a later case, and even then, merely as a guide. What the earlier decision establishes is only a principle, not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely incline decisions one way or the other. They form a principle or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand.”
The Appellants proceeded in their argument as though the snippets of facts on which they build their case of proximity of relationship or neighbourhood creating the duty of care was established on the evidence. It is pertinent to state that it is only where the evidence so established it, that the duty of care would arise.
Dealing with whether the individuals who the Appellants dealt with were individuals who the Respondent can be liable for their acts and conduct such that a duty of care can be said to exist, the lower Court held as follows at page 164 of the Records:
“The position of the law is that in recovering for negligent misrepresentation, the remedy for damages and rescission would accrue to a person with whom the represent or has a special relationship which has to be defined in each particular case, the important thing is that there must have been a special relationship warranting reliance thereon by the person to who it is made and in order to recover for untrue statements there must be proved the ingredients of misrepresentation.
I have carefully perused exhibits MPNUL 2-4 i.e. the Invitation for prequalification services Agreement with AJU Enterprises and Amori International and the evidence of Defendant Witness 1 and Defendant Witness 2, there is no special relationship between the Claimants and the Defendant to warrant reliance by the 1st Plaintiff, [sic] that he was being awarded a contract by the Defendants, the Defendant Witness’s have stated that Engr. Williams is not a staff, the Claimants are not registered [sic] contractors, they are not in their records, no negligent misrepresentation on the part of the Defendants as both Sunday Amos Dickson, Amorit International staff of Aju Enterprises were independent contractors to the 1st Defendant, the Claimants relied on statements from independent contractors, their staff.
Article 3 of Exhibit MPNY 3, the service Agreement, it is my view that liability lies with the independent contractors as an independent contractor undertakes to produce a given result without being under any order or control of the person for whom he does it and may use his discretion on things not specified before hand. The person procuring an independent contractor to do some work would not be liable for the negligence or other tort committed by the independent contractor”.
The lower Court continued and conclusively held thus at page 165 of the Records:
“In this instant case, the Defendants are not liable for uncompromised tortuous or contractual act of the staff of the contractors, Defendants cannot be bound by the negligence misrepresentation of their staff, they have gone outside the purview of the work as agreed by the Employer, the Defendants are not guilty of fraudulent and negligent misrepresentation”.
So the finding of the lower Court is that the acts of the individuals that the Appellants dealt with cannot be imputed to the Respondent.
In dealing with the security personnel that the Appellants contend freely allowed them into the premises, and the location where the Appellants met with the individuals who fleeced them, the lower Court reasoned and held as follows:
“I have also carefully perused exhibit PO 2E, the spy police woman, Glory Idungeta’s statement allowing the Plaintiffs and his colleagues to pass through the 1st Defendant’s gate as visitors.
Exhibit PO2B – Statement of Sunday Dickson and PO2F, Statement of Ewen Nyibo
Exhibit PO2G – Statement of Eme Ekpa, a business woman, a registered contractor.
Vicarious liability can be found from the circumstances from which task or duty must have been delegated. The onus of proving facts which would establish vicarious liability lies on the Plaintiffs…
The spy police woman under the law is a member of the Nigeria Police Force the Defendants cannot be liable for her acts.
Emen Nyono acted outside the scope of her duty by allowing the parking store to be used for meeting, Aju Enterprises an independent contractor, operated the Golf Bar, the Defendants cannot be vicariously liable for the acts of independent contractor cannot be liable. [sic]”
(See Page 165 of the Records)
The lower Court continued and stated as follows at page 166 of the Records:
“In order to establish that a duty of care arises in a particular situation, it would not require the bringing of facts of that situation within those of previous situations in which a duty of care had been held to exist, what is necessary is the question whether there is sufficient relationship or proximity or neighbourhood such that in the reasonable contemplation of the wrongdoer, carelessness on his part may be likely to cause damage to the latter in which case a prima facia duty of care arises.
Negligence arises when a legal duty not a moral duty of care is owed to the Plaintiff.
An occupier of premises owes a duty of care to lawful visitors to ensure that the premises are reasonably safe.
On grounds of public policy the Defendants cannot be held liable in negligence in relation to act done in connection with the commission of a crime, having regards to the facts of this case.
It is my view that a Duty of Care does not exist between the Defendants and the Claimants, the Claimants have failed to show the existence of circumstances which give rise to a duty of care to them, they merely passed through the Defendants premises to the Bar where they met with Engineer Williams.”
On the question of occupiers liability for what happens in its premises and whether the Respondent was liable, the lower Court held as follows:
“The Claimant Witness gave evidence to the fact that the he would not have participated in the entire transaction because there was no doubt in their minds about the premises they were using, they had no harassment or embarrassment from anybody nor challenged.
It is the evidence of Defendant Witness 1 that the Golf Recreational Building was located near a restaurant and bar operated by Aju Enterprises, independent contractor, no usage of various conference rooms at Defendants offices in Qua Ibo terminal could be possible without permission being obtained, it was the parking store used by Aju Enterprises that was used.
It is his evidence that Mr. Williams and his friends were only able to pass through the gate to the recreational facility because Mr. Amos conveyed them straight to their point of meeting in the vehicle under his control, no singular staff of the 1st Defendant was involved in the alleged discussions.
The liability of an occupier of premises to lawful visitors is that it has a duty to take care as in the circumstances of the case to see visitors are reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there.
It is a question of facts in each case.
From the evidence Defendant Witness 1 and the exhibits PO 2F, it is clear that the Claimants have failed to prove that it was the Defendants premises that the meetings were held, the conference hall, the store where drinks were kept. The Defendant owes a duty to a visitor using the premises for what he is invited for or permitted, thus where he uses for an unauthorized purpose, they will not be liable for any injury.”
(See page 166 of the Records)
Finally on the question of the driver and the use of the vehicle the lower Court held as follows:
“The Defendant Witness 1 in his evidence on oath, exhibit MPNU 1 gave evidence to the fact that whilst the vehicle belonged to the 1st Defendant, control and management of same was under the driver who was employed and controlled by Amorit International Limited and it was only his employers who could answer as to whether he was acting within the armbit [sic] of his instructions when he allegedly was ferrying Mr. Williams and his guests.
The position of the law is that where a servant engages in a frolic of his own there would be no vicarious liability…
The Defendants are not liable for the direct consequence of the drivers acts, the onus of proving vicarious liability lies on the Claimants, this they have failed to discharge.”
(See pages 166-167 of the Records)
I have deliberately gone to some detail to set out the pericope from the decision of the lower Court on the snippets on which the Appellants predicated and founded the alleged proximity of relationship or neighbourhood with the Respondent. It is designed to bring out the fact that the lower Court held that no proximity of relationship or neighbourhood could be said to exist between the Appellants and the Respondent based on the snippets relied upon by the Appellants. I iterate that in the absence of proximity of relationship or neighbourhood, a duty of care does not arise and where a duty of care does not arise, there cannot be a breach of the duty which can lead to award of damages.
The Notice of Appeal filed by the Appellants is at pages 168-172 of the Records. It is instructive that the Appellants did not challenge or appeal against any of the findings of the lower Court on the snippets on which they sought to establish the existence of a duty of care. The trite law is that negligence is a question of fact and not of law, and each case is decided on its own diacritical facts. The snippets of facts relied on by the Appellants were resolved against them and they did not appeal in respect of those findings. The principles of law relied on by the Appellants would only be availing where the facts of the case are such that would make the principles applicable: FAWEHINMI vs. NBA (No. 2) (supra).
The concomitance of the Appellants having failed to appeal in respect of the said findings means that they remain binding and this Court cannot hold that the Respondent owes the Appellant a duty of care without first setting aside the findings of the lower Court on the basis of which it held that no duty of care was owed; which this Court cannot do because the Appellants did not appeal against the said findings. It is abecedarian law that the finding of a Court which has not been challenged on appeal remains binding and its correctness cannot be questioned. See COMMERCE ASSURANCE LTD vs. ALLI (1992) 3 NWLR (PT 232) 710, YESUFU vs. KUPPER INTERNATIONAL (1996) 5 NWLR (PT 446) 17, P. N. UDOH TRADING CO. LTD vs. ABERE (2001) 11 NWLR (PT 723) 114 at 146, OLUKOGA vs. FATUNDE (1996) LPELR (2623) 1 at 8, FBN PLC vs. OZOKWERE (2013) LPELR (21897) 1 at 20 and FIRST DEEPWATER DISCOVERY LTD vs. FAICECK PETROLEUM LTD (2020) LPELR (49783) 1 at 27.
I started the resolution of this appeal by setting out the essential elements or ingredients of an actionable negligence. The Appellants have failed at the very first hurdle as they did not establish, and failed to appeal against the finding of the lower Court, that the Respondent did not owe them a duty of care.
Arguendo, even if the Respondent owed the Appellants a duty of care, which by the unchallenged finding of the lower Court the Respondent did not, the Appellants did not establish their entitlement to the award of the special and general damages claimed. This is what the lower Court held at page 167 of the Records on damages:
“From the evidence before the Court, on the issue of N100,000,000 Contract due to Pacraco Nigeria Limited, exhibit P.O. 6 dated 16/12/03 the Proforma Invoice with the condition stated that it was subject to Letters of Credit opening within 7 days and letter dated 13/5/04 after the 5 months expiration, the transaction had been reported to the police for presentation, it expired on 23/12/06.
I therefore find myself unable to grant this prayer, it is hereby dismissed.
On the N20,000,000 value of abandoned contract i.e. letter dated 1/7/02 from Chevron which expired 30/6/03, I find myself unable to grant this prayer, it is hereby dismissed.
On the claim for special damages of N5,000,000 Running Expenses from Delta to Akwa Ibom, this expired 30/6/03, these heads of special damages have not been strictly proved.
Value of other contracts abandoned or lost by Earliton Nigeria has not been strictly proved, it is also dismissed.
On General damages of N15 million naira as loss of profit is a special damage which must be adequately particularized with precise calculations…
No credible evidence before me to justify those claims.
On claim for General Damages of N15 million naira, the Court has the discretion to award general damages, such discretion must be exercised judicially and judiciously, there is no evidence before the Court to show the Claimants suffered such damages.
General damages cannot be a substitute for special damages when a Plaintiff fails to prove his claim, even when evidence is led on it.
Accordingly, the claim for General Damages is hereby refused and dismissed.”
The Appellants did not appeal against the finding and decision of the lower Court that the special and general damages claimed were not proved. The said finding and decision remains subsisting and binding. It seems that even if the Appellants had established the first two ingredients of an actionable negligence, id est, existence of a duty of care and breach of the said duty, which I reiterate that they did not; they would have still not been entitled to any damages since they did not appeal against the decision of the lower Court in that regard.
As I approach the terminus for this judgment, it is important to underscore that the alluring submissions of the Appellants on the law are not rooted in the facts. The brass tacks on which to build the sound legal principles remain similar and applicable facts. The decision of the lower Court on the fundamental facts did not favour the Appellants and the Appellants did not appeal against the findings. Their submissions on the issues for determination in the circumstances became like building castles in the air. The issues for determination are resolved against the Appellants. The appeal is bereft of any merit and it is only deserving of a dismissal. The appeal is therefore dismissed and the judgment of the lower Court, Coram Judice: Nicol-Clay, J. delivered on 29th September 2010 is hereby affirmed. The parties are to bear their respective costs of this appeal.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA and I adopt the judgment as mine with nothing further to add.
EBIOWEI TOBI, J.C.A.: I have been afforded the privilege of reading in draft the leading judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA. and I am in agreement with his reasoning and the conclusion reached therein. On my part, I have nothing more to add.
Appearances:
Kingsley Izimah, Esq. For Appellant(s)
Uche Udeoji, Esq. For Respondent(s)
