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

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

LawGlobal-Hub Lead Judgment Report

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.”

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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.”

The two issues, therefore, which the High Court had to decide were whether the second and the third defendants had been negligent and whether the first defendant as their employer was vicariously liable for their default, if any. In this connection, it is pertinent to recall this finding of the court:

“The first defence witness was James Olubobade, Ibadan Branch Manager, for the 1st defendants since January 1966. He told the Court that the 2nd defendant was employed as a delivery driver on 2nd November, 1964, while the 3rd defendant was employed as a fitter in July 1963, but that he dismissed both of them on 29th April, 1966, as a result of the fire incident at Ode-Ona area on 28th March, 1966.”

After reviewing the evidence before him, the learned Chief Justice said:

“The essential facts in this case are not in dispute, and they are that the 2nd and 3rd defendants who were servants of the 1st defendants on the day in question went in the company’s vehicle which carried several gas cylinders and parked it in front of the plaintiff’s house. There was an explosion involving the gas cylinders in the vehicle and the plaintiff’s house and personal property were completely destroyed. The only dispute was as to whether the two servants were there in the course of their employment or were there on their own business, on a frolic as it were. I must say right away that by the defence raised in paragraphs 4 and 5 of the Statement of Defence, the onus lies squarely on the 1st defendants to establish the contention raised therein by cogent evidence. Once it was agreed that the two men were servants of the 1st defendants on the material date, that they were found in their vehicle at the material time with one of them (i.e. the 2nd defendant) actually driving it and both attending to their masters’ gas cylinders also at the time of the explosion and the fire, there was a prima facie evidence that they were someone for whose negligence the 1st defendants were responsible if there was no evidence to rebut that presumption. See James Onuchuku v. Christiana Williams 12 NLR page 19: Hibbs v. Ross (1866 LR 7 Q.B.) page 534 and Bernard v. Sully (47 TLR 557).”

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The learned Chief Justice then went on to adopt the following opinion of Lord Pearson in the House of Lords decision in Henderson v. Henry Jenkins & Sons & Anor. (1969) 3 WLR 732, at p. 745.

“…In an action for negligence the plaintiff must allege, and has the burden of proving, that the accident was caused by negligence on the part of the defendants. That is the issue throughout the trial, and in giving judgment at the end of the trial, the Judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by negligence on the part of the defendants, and if he is not so satisfied the plaintiff’s action fails. The formal burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raised a prima facie inference that the accident was caused by negligence on the part of the defendants, the issue will be decided in the plaintiff’s favour unless the defendants by their evidence provide some answers which are adequate to displace the prima facie inference. In this case there is said to be an evidential burden of proof resting on the defendants………..”

He then concluded:-

“On the whole therefore, I find the 1st defendants liable on the claim for negligence on the evidence before the court, and on the law. In respect of the 2nd and 3rd defendants, I find the case against them also proved, especially also because they have offered no defence to the action.

Similarly, the learned Chief Justice disbelieved the only evidence of D.W.1 in support of first defendant’s denial of liability by the claim that “the two men had no common business to be together on that day, or to be at the place where they were found, i.e., at Odo-Ona.” He, therefore, found for the plaintiff on the claim both for the negligence on the 1st defendants’ servants and for their vicarious liability for the latter’s default in the sum of £840 for the house, £191: 18/- for the properties destroyed therein and £800 as general damages, all totalling £1, 831: 18/-.

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From this decision the 1st defendants appealed to the Western State Court of Appeal on the following 4 grounds, the first of which is the original and 2-4 are the additional ones which the Court permitted to be argued:

“1. The decision is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.

2. The learned Chief Justice erred in law when he, on his own motion, and not at the instance of the Plaintiff nor the Defendant, recalled the First Defence Witness, and thus based his finding of facts on the evidence so obtained, to wit: that the first defendant was an occupier of the damages and what he called “Clarification of certain points as a result of the evidence of third defence witness and the contents of Exhibit ‘C’ and this has led to a miscarriage of Justice.

3. (a) The learned Chief Justice erred in law when he based his acceptance of the estimate of the value of properties damaged given by second plaintiff’s witness in his evidence in chief on his visit to the scene of incident (locus in quo) when the record of the visit was not made part of the proceedings and this had led to miscarriage of justice.

(b) Alternatively the learned Chief Justice erred in-law and in fact when he failed to make the said visit to the scene of incident (locus in quo) part of the proceedings and this has led to a miscarriage of justice.

4. The learned Chief Justice erred in law when he granted a motion by the plaintiff for judgment in default of defence again


Other Citation: (1972) LCN/1303(SC)

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