Amusa Ajani Popoola Vs Pan African Gas Distributors & Ors (1972)

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ELIAS, CJN

This is an appeal from the judgment of the Western State Court of Appeal delivered on June 3, 1971, reversing the decision of Somolu, CJ., in the High Court of Ibadan delivered on June 8, 1970, in which damages in the sum of £1,831: 18/- and £105 costs were awarded in favour of the plaintiff against the defendants jointly and severally. The plaintiff’s writ of summons in the High Court was endorsed as follows:-

“1. The Plaintiff’s claim against the defendants jointly and severally is for the sum of £2,000 (Two Thousand Pounds) being special and general damages suffered by the plaintiff when on 24/4/68 the second defendant who was the driver of vehicle No. LK 5808 carrying filled Gas Cylinders both properties of the first defendants, parked same in front of the plaintiff’s house situate and being at Ode-Ona, Ibadan, without the plaintiff’s knowledge and consent and both the second and third defendants negligently and or recklessly tampered with the said filled Gas cylinders in the cause of their employment and the Gas Cylinders exploded into fire flames which destroyed the plaintiff’s said house at Ode-Ona, and his properties contained therein.

The second and third defendants were at the material time the servants and/or agents of the first defendants and were at the said material time acting in the cause of their employment as servants and/or agents of the said first defendant.”

The relevant paragraphs of the Statement of Claim are as follows:-

“5. The Plaintiff is the bona fide owner of the house situate at Odo-Ona, Ibadan, erected in 1953.

7. On or about the 28th April, 1966, the second and the third defendants both employees, servants or agents of the first defendant during the course of their duty parked, without the consent of the Plaintiffs, a lorry loaded with filled Gas Cylinders in the premises of the house of the Plaintiff at Odo-Ona.

8. The second and third Defendants after off-loading the said Gas Cylinders in the premises of the Plaintiff deliberately and negligently tampered with the said filled Gas Cylinders and thereby caused them to explode.

9. As a result of the explosion caused by the negligence of the second and third defendants (during the course of their duty), the Plaintiff’s house at Odo-Ona, Ibadan, and all the properties therein were completely destroyed.

11. The Plaintiff will contend at the trial that it was the negligence of the second and third defendants (both employees of the first Defendant) that caused the total destruction of his house and property therein.

12. The Plaintiff will further contend at the trial that the principle of Res Ipsa Loquitor applies with reference to the said explosion.”

The 1st defendant admitted in his Statement of Defence that the 2nd and the 3rd defendants were his employees at the material time, but otherwise denied paragraphs 7, 8, 9, 10 and 11 of the Statement of Claim. It is to be noted that the 1st defendant, who alone defended the action in the Court below and who alone appealed against the judgment, did not deny paragraph 12 of the Statement of Claim on the issue of the plea of Res Ipsa Loquitor. The two other material paragraphs of the Statement of Defence are as follows:-

“4. The 1st defendant will contend at the trial that the 2nd and 3rd defendants were not on the 1st defendant’s business when they stopped and parked in front of the house of the plaintiff.

5. The 1st defendant will contend at the trial that the 2nd and 3rd defendants’ acts in front of the plaintiff’s house were a deliberate breach of their employment with the 1st defendant and against the 1st defendant’s interest.”