Jarmakani Transport Ltd v. Madam Wulem Otu Abeke (1963) LLJR-SC

LawGlobal-Hub Lead Judgement Report

GEORGE BAPTIST AYODOLA COKER (Justice of The Supreme Court of Nigeria)

This is an appeal from the judgement of the High Court, Abeokuta, whereby the appellants were adjudged jointly and severally with the second defendant in the action (who has not appealed) to pay to the respondent damages in the amount of #1,750 with costs assessed at 100 guineas. The respondent had claimed against the appellants and one Ladipo Akanmu, a total of #5,020 being special and general damages for the negligence of the defendants resulting in injuries to her as follows:
Hospital and Medical Examination Fees 20
General damages 5,000
TOTAL #5, 020

The claim of the plaintiff respondent was founded on injuries received by her when a lorry owned by the appellants and driven by the second defendant and on which she was riding was involved in an accident along the Abeokuta Lagos Road on the 30th September, 1958. On the day of the accident the appellants’ driver who was driving an open lorry designed only to carry goods went to the Abeokuta (Lafenwa) lorry park and invited passengers to come on the lorry for transport to Lagos. The respondent was one of the passengers at the park waiting for transport to Lagos and she acceded to the invitation of the second defendant and went on the lorry. She paid a fare but there was no evidence that she received a ticket. At the time she boarded the lorry there were about twenty other passengers on the lorry all sitting on their loads as there were no seats provided on the body of the lorry. As the lorry was already full of passengers and loads the second defendant, the driver, invited her to sit by him in the driver’s cab and she did so. On the way to Lagos she observed that the second defendant was speeding excessively and she requested him to allow her to get off the lorry. This request was apparently unheeded by the second defendant and near the Lafenwa railway crossing the lights of the lorry went out. The driver continued to drive the lorry without lights zigzagging along the road and paid no attention whatsoever to the entreaties of the respondent to allow her to get off the lorry. Shortly afterwards the lorry collided with and rammed another stationary vehicle parked on the left side of the road near Wasinmi on the road to Lagos. The respondent sustained serious injuries to her legs and feet and indeed her feet were trapped in the metal floor of the front seat of the lorry on which she was sitting.
The learned trial Judge, after listening to the evidence of both sides and in particular the medical evidence on behalf of the plaintiff/respondent to the effect that she sustained fractures on the right leg and foot, lacerations over the tendo Achillis and a one inch shortening in the right lower limb (involving a total disability of 17 per cent), gave judgment in favour of the respondent against the appellants and the second defendant, the driver, for #1,750 general damages and awarded 100 guineas costs against both defendants.

It was contended on behalf of the appellants that the second defendant was not acting within the scope of his employment when contrary to the express prohibitions of the appellants he had carried passengers in the lorry which was manifestly not built for carrying passengers. The learned trial Judge came to the conclusion that the appellants were vicariously liable for the negligence of the second defendant who was at the material time their driver and in charge of a lorry owned by them.
A number of grounds of appeal were filed and argued on behalf of the appellants but on account of the view which I have formed of this appeal I propose to deal fully with only two of the grounds, as follows:-
“A. That the learned trial Judge erred in law in holding that the second defendant was acting within the scope of his employment with the 1st defendant in view of
(a) The uncontradicted evidence of the defence that the lorry LB 6841 was licensed to carry goods only, that it bore the inscription “Passengers Not Allowed” and the terms of Exhibit “B”;

(b) the fact that the second defendant was acting on a jaunt of his own by neglecting the duties of his employment in carrying the plaintiff as a passenger when the lorry was not designed to be and was not in fact a passenger lorry, a fact established by the lack of provision of seats of any kind in the lorry thereby showing that the driver was acting outside the ostensible scope of his employment.”

“That the damages of #1,750 awarded are excessive in view of the evidence of the second witness for the plaintiff.”
I observe in passing that on a close reading of the several grounds of appeal filed in this matter it would be found that they are all, apart from the grounds of appeal dealing with the weight of evidence and quantum of damages, directed against the finding that at the time of the accident the second defendant was acting within the scope of his employment with the appellants. It was not complained or suggested before us that in the events that happened the second defendant who drove the lorry in question on the particular day was not negligent. There can be no doubt as to his own negligence as at the material time he was driving and indeed speeding with an open lorry in the dark after his lights had failed and then collided with a stationary lorry correctly parked on its own side of the road.

This appeal therefore turns on the question whether the driver was acting at the time of the accident within or outside the scope of his employment. The respondent gave no specific evidence on this point but relied on the facts that the lorry belonged to the appellants (whose servant the driver was) and that the driver specifically invited her to join the lorry at Lafenwa Motor Park. As against this the appellants produced evidence at the trial to the effect that the vehicle concerned was an open lorry not built for the carriage of passengers, that the lorry was licensed to carry goods only and insured for that purpose only and that they had caused to be printed boldly on both sides of the lorry the warning “Passengers Not Allowed”.

The appellants also testified to the effect that all their drivers including the driver of the lorry involved in the present case were specifically warned not to carry passengers. Indeed a copy of the alleged warning notice issued to the second defendant in this case was produced in evidence as Exhibit “B”. It reads in part as follows:-
“You shall be driving Commercial Goods Lorry No. LB 6841 and this being a vehicle constructed and designed mainly for carrying goods, you are not permitted under any circumstances to carry passenger or passengers on this vehicle or any other vehicle that may be allocated to you in future. If you happen to do so, you are liable to immediate dismissal. Offence and Claims resulting from your carrying passengers in disregard of this instruction shall be your own responsibility and we shall not in any way be liable as such act is outside the scope of your employment.
You will have to sign this letter and return it to us immediately. The attached copy is yours.”

In their final addresses to the Court, Counsel on both sides referred to some legal authorities in support of their contention as to whether or not at the time of the accident the driver was acting within the scope of his employment so as to render the appellants liable for his act under the doctrine of “respondent superior” . The learned trial judge came to the conclusion that the appellants were so liable and stated inter alia in his judgment as follows:-

“With regard to the third point, I hold that in the circumstances of this case, the 1st Defendant is vicariously liable for the negligence of the 2nd Defendant. The 1st Defendant employed the 2nd Defendant to drive lorry No. LB 6841. In the course of doing what he was employed to do, he drove the lorry negligently, as a result of which the Plaintiff sustained the injuries for which she is now claiming damages. It is immaterial whether he acted improperly or contrary to express orders. In any case, I am not satisfied that the words PASSENGERS NOT ALLOWED” were written on the lorry. Even if they were, the words could not have been intended, and they were not intended, for the illiterate class of persons to which the Plaintiff belongs.

Furthermore, there is no proof that the contents of the instructions (Ex. “B”) were ever interpreted to the 2nd Defendant who the 1st Defendant admitted is an illiterate, before he affixed his thumb impression. It is significant that Yesufu Olu, who was shown on Ex. “B” as having interpreted Ex. “B” to the 2nd Defendant, was not called by the Defence to give evidence.”

Before us learned Counsel for the appellants attacked these findings and submitted that in the circumstances of this case the appellants could not be vicariously liable for the negligence of the second defendant as he was not at the material time acting within the scope of his employment with the appellants.

It is trite law that a master is vicariously liable for the negligence of his servant committed in the course of and within the scope of the servant’s employment, but the application of this principle to the realities of a situation is fraught with considerable difficulties. The result is that ultimately each case will have to be determined on its own facts.

In Goh Choon Seng v. 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. In the course of the Judgement of the Board, Lord Phillimore suggested a classification of the possible cases into three categories, in a passage which reads as follows [at p. 554]:-