Ifeanyi Chukwu (Osondu) Co. Ltd. Vs Soleh Boneh (Nig.) Ltd (2000)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

The main question arising for determination in this appeal is a question of law framed by the parties, as follows:

“Whether the Court of Appeal was right in holding that failure (by the appellant) to join the respondent’s driver as a defendant in the present proceedings was fatal to the appellant’s case.”(words in brackets mine)

Following an accident that occurred at Abudu in Bendel State (now Edo State) on 29th May, 1981. the plaintiff (who is appellant in this appeal) sued the defendant (now respondent) claiming N64,521 damages it suffered as a result. The accident involved the two vehicles of the parties. The plaintiff’s vehicle Reg. No. IM1673G driven by its driver was a passenger coach; that of the defendant, Reg. No. OY 9065 AD was a trailer and was driven by one Mosudi Akanbi said to be the defendant’s driver. The action was instituted against Mosudi Akanbi and the defendant. Following difficulties encountered in getting Mosudi Akanbi to be served with the Writ of Summons. The action was withdrawn against him and his name was struck off the proceedings.

Pleadings were filed and exchanged and, by leave of court, amended. By paragraph 15 of its amended statement of defence, the defendant pleaded thus:

Further, or in the alternative to paragraphs 5 to 8 and 10 to 15 herein above, defendant will at or before the trial contend on a point of law that even if all the averments in the Amended Statement of claim are admitted (which is denied) the Amended Statement of Claim is bad in law in that it discloses no cause of action against the defendant.

Particulars

(i) The Writ of Summons originating this action was taken out against Mosudi Akanbi (Driver of defendant’s vehicle) as 1st defendant and the present defendant as 2nd defendant.

(ii) On the 24th February, 1984 the plaintiff discontinued the action as against the said 1st defendant:

(iii) The 2nd defendant’s (now the sole defendant on record) liability is vicarious, by operation of law and cannot be established when plaintiff has discontinued the action against the 1st defendant who is primarily liable;

(iv) The original Writ of Summons is inconsistent with the Amended Statement of claim,”

The case proceeded to trial at the end of which the learned trial Judge, in a reserved judgment, found:

1. “that I agree entirely with Mr. Okonjo that Mosudi Akande (sic) is a necessary party whose non-joinder is fatal to the plaintiffs case …. I hold that Mosudi Akande not being a party in this case I cannot pronounce any verdict against him for which the defendant company can be held vicariously liable. On this ground the plaintiffs action cannot succeed,”
2. that even if Mosudi Akanbi, the driver of the trailer were a party to this action the plaintiff would still have lost as it failed to prove any negligence against him;
3. that there is no nexus between the plaintiff’s vehicle Reg. No. IM 1673G and Exhibits B, C, D, E, F, 0 & H (tendered in support of the claim for damages). The said exhibits are not unequivocally referable to IM 1673G
4. “that the plaintiff, in the instant case. having tendered evidence of negligence on the part of the driver of OY9065AD cannot rely on the doctrine of res ipsa loquitur to sustain his claims.

He dismissed plaintiffs claims.

The plaintiff appealed to the Court of Appeal (Benin Division) upon two original and three additional grounds of appeal. The plaintiff in its written brief of argument in that court set out three issues for the court to consider, to wit:

(1) Whether failure to join the respondent’s driver as a defendant in this action against his master where it is alleged that the master is vicariously liable is fatal to the appellant’s case.

(2) Whether having regard to the evidence adduced by both parties the learned trial judge was right to dismiss the appellant’s claim.

(3) Whether an appellate court seised of the matter is competent to evaluate the whole evidence and award damages claimed in the lower court.”

The Court of Appeal. in the lead judgment of Ogebe, JCA with which the other Justices agreed, addressed itself only to issue (1) above and adjudged:

“From all these authorities which I respectfully follow, it is clear that in an action for negligence as in the present case if the principal actor (the offending driver) is not joined as a party and his liability established there can be no question of finding the master liable vicariously. In other words, once the driver is not joined in the action the action is incompetent ab initio and a trial court should not waste its time going into the merits of the case. (Italics are mine)

Akpabio. JCA in his concurring judgment. wrote:

“I think that it must be repealed for emphasis that regardless of how gross the negligence of a driver might be, the liability of his master, which is vicarious, cannot arise unless and until the servant (the principal tort-feasor) who had driven the vehicle has been established in the court. The same goes for any insurance company who may have underwritten the liability. In the instant case, since the driver was never made a party to the suit, the liability of his master can never arise.” (Italics is mine)

The appeal was dismissed without any pronouncements being made on the other issues canvassed. The plaintiff has further appealed to this court on the only issue set out at the beginning of this judgment. Both in the appellant’s brief and in oral arguments of plaintiff’s learned counsel. it is submitted that it is unnecessary to sue a servant in negligence before making the master liable. It is contended that a master can be found liable in negligence with or without joining the servant. It is learned counsel’s submission that all that is required is that for the plaintiff to succeed against the master he must establish the liability of the servant for the tort complained of. And this he can do with or without joining the servant in an action against the master, so submits learned counsel. It is further contended that both the defendant and its driver are joint tort-feasors and being joint tort-feasors the plaintiff was at liberty to sue either or both. The following cases are cited in support:Lennards Carrying Co. Ltd. v. Asiatic petroleum Co. Ltd. (1914-15) All ER 280 at 283; James v. Midmotors (1978) 11-12 SC 31 at p. 39; Benson v. Otubor (1975) NSCC (Vol. 9) p. 49 at pp. 51 & 54. It is submitted that Consortium Steel Plant Aladja v. Mrs. Angelika Akindejoye & Ors. – CA/B/128/87 of 3rd Nov. 1989 (unreported) relied on by the court below was wrongly decided and that Rose v. Plenty ( 1976) 1 All E.R. also relied on by the court below is not apposite.

For the defendant, both in its brief and in oral arguments of its learned counsel. It is contended that in the light of paragraphs 5, 6 and 7 of the amended statement of defence, the presence of the driver of the defendant’s vehicle became necessary. It is submitted that as a master is only liable vicariously for the tort of his servant where the liability of the servant has been established it follows that in the present case the liability of Mosudi Akanbi can only be established and determined when he is a party to the action. Learned counsel for the defendant supports the judgment of the Court below. He cites in support Rose v. Plenty (supra) and Management Enterprises Ltd. v. Otusanra (1987) 2 NWLR (Pt.55) 179 and distinguishes Benson v. Otubor (supra).

The general principle of law which has its roots in the earliest years of the common law is that a master is liable for any wrong even if it is a criminal offence or a tortious act ‘committed by his servant while acting in the course of his employment. Tubervill v. Stamp (1697) I Ld. Raym. 264; Dyer v. Munday (1895) 1QB 742. This is what is known as the doctrine of vicarious liability which is based on the principle of law enunciated by Sir John Holt CJ in Hern v. Nichols (c. 1700), 1 Salk 289; “one of the earliest cases on the subject wherein the learned Chief Justice pronounced.

“Seeing somebody must be a loser by this deceit. it is more reason that he, that employs and puts & trust and confidence in the deceiver, should be a loser than a stranger.”

The doctrine means that one person takes the place of another so far as liability for the tort is concerned – see: Launchbury v. Morgans (1971) 2 QB 245, 253. It is the relationship of master and servant that of itself gives rise to this liability and not the old fiction that the master had impliedly commanded his servant to do what he did. A lot has been written over the centuries, both judicial and academic on the basis for the doctrine of vicarious liability – see for example, Kilboy v. South-Eastern Fire Area Joint Committee, (1952) SC, 280, 285. (per Lord Cooper); Staveley Iron & Chemical Co. Ltd. v. Jones (1956) AC 627, 643: Morgans v. Launchbury (1973) AC 127, at 135, 140: Maitland in P & M Vol. (ii) at 533. Going by the judgments from Sir John Holt CJ in Hem v. Nichols (supra) to Lord Denning in Nettleship v. Weston (1971) 2 QB 691,700, it would appear that the doctrine is based on public policy or. as Lord Pearce put it in I.C.I. Ltd. v. Shatwell (1965) AC 656, 685 on “social convenience and rough justice” Viscount Dilhorne and Lord Pearson in Launchbury v. Morgans (supra) rationalised at p. 140 that, the phrase qui facit per alium, facit per se correctly expresses the principle on which vicarious liability is based. But see Stanveley Iron & Chemical Co. Ltd. v. Jones (supra) per Lord Reid as to the qualified use of the Latin maxim. On the authorities as a whole, the master is liable, though guilty of no fault himself. The liability of the master is dependent on the plaintiff being able to establish the servant’s liability for the tort and also that the servant was not only the master’s servant but that he also acted in the course of his employment. The learned authors of Clerk & Lindsel on Tom 14th edition. paragraph 237 at page 238 state the law thus:”Liability of master for torts of servant. Where the relationship of master and servant -exists, the master is liable for the torts of the servant so long only as they are committed in the course of the servant’s employment. The nature of the tort is immaterial and the master is liable even where liability depends upon a specific state of mind and his own state of mind is innocent.”See also I.C.I. Ltd. v. Shatwell (supra) where Lord Pearce stated the law succinctly thus:

“Unless the servant is liable, the master is not liable for his acts; subject to this, that the master cannot take advantage of an immunity from suit conferred on the servant (Broom v. Morgan).

It is not necessary for the purpose of this judgment to dwell into the question whether a wrongful act is done in the course of the servant’s employment For it is not disputed by the defendant in these proceedings that Mosudi Akanbi acted in the course of his employment when he was involved in the accident his vehicle had with the plaintiffs vehicle. In summary, to succeed against a master the plaintiff must

1. establish the liability of the wrongdoer, and prove
2. that the wrongdoer is a servant of the master and
3. that the wrongdoer acted in the course of his employment with the master.

See Young v. Edward Box & Co. Ltd. (1951) TLR 789; 793 where Denning L. J., said:

“In every case where it is sought to make a master liable for the conduct of his servant the first question is to see whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servant’s liability.”The next point I need make is that the master is answerable for every wrong of the servant as is committed in the course of his employment – See: James v. Midmotors (supra), Houldsworth v. City of Glasgow Bank (1874 – 1880) All ER (reprint) 333; (1880) 5 App Cas. 317. Following from the above discourse I now come to the nature of the liability of the master vis-a-vis his servant. The law regards both master and servant as joint tort-feasors – see: Jones v. Manchester v. Corporation (1952) 2 QB 852 at p. 870 where Denning L. J. (as he then was) held:

“In all these cases it is of importance to remember that when a master employs a servant to do something for him, he is responsible for the servant’s conduct as if it were his own. If the servant commits a tort in the course of his employment,then the master is a tort- feasor as well as the servant.”

Finnermore J. in Semtex Ltd. v. Gladstone (1954) 1 WLR 947 at 949 expressed some reservation about this reasoning. See also Treacy v. Robinson & Soil (1937) 1R 255, 266. Being joint tort-feasors, the person injured is at liberty to sue anyone of them separately or may sue both jointly, their liability being joint and several. That their liability is joint and several is borne out by the case of Broom v. Morgan (1953) 1 QB 597 where the defendant, the licensee of a public-house employed both the plaintiff and her husband. The plaintiff was injured as a result of her husband’s negligence committed in the course of his employment. She sued the employer, the licensee of the public-house. The Court of Appeal (England) held that she was entitled to hold the defendant vicariously responsible for her injury, even though she could not have sued her husband as the law then stood. That the person injured may sue any or both of the tort-feasors is also borne out by section 14 of the Torts Law, Cap 164, Vol. VI Laws of Bendel State, 1976 applicable in the case on hand.

Both the trial court and the court below were of the view that as Mosudi Akanbi was not joined as a defendant in this case, the action as constituted was incompetent. They relied on some authorities the most important of which I shall now proceed to consider. It is Management Enterprises Ltd. & Anor. v. Otusanya (supra) (1987) 4 SC 367; (1987)2 NWLR(Pt.55) 179. In this case, there was a ghastly motor accident on the Benin-Ijebu-Ode road involving two vehicles traveling in opposite directions. One of the drivers, Dangana Musa died in the accident. The respondent in the appeal to this court was a fare-paying passenger in one of the two vehicles. He was injured as a result of the accident and sued both the owners and the drivers of the two vehicles. In his pleadings he blamed the two drivers for the accident which he attributed to the failure of both drivers to give way, to steer clear or stop for each A other; failure to exercise reasonable prudence in the circumstances; excessive speeding, plying the road with vehicles in unsafe and dangerous conditions and permitting their vehicles to get out of control. He also pleaded res ipsa loquitur. He pleaded in the alternative damages for breach by the defendants of section 3(1) of the Motor vehicles (Third Party Insurance) Act Cap 126 Laws of the Federation of Nigeria. Plaintiff in the course of proceedings withdrew the action against the owner and driver of the commercial vehicle in which he was traveling as passenger (that is, 3rd & 4th defendants) and the action proceeded against the 1st and 2nd defendants (the owner and driver of the trailer vehicle), The 2nd defendant was the driver that died in the accident. Plaintiff did not, after withdrawing against 3rd and 4th defendants, amend his pleadings. The 1st and 2nd defendants in their statement of defence blamed the accident on the 4th defendant, the driver of the commercial

vehicle and denied liability under section 3( I) of Cap, 126 and further pleaded, in respect of that claim, that it was statute-barred.

Oputa JSC who read the lead judgment of this court put the issues arising in the case as being (1) whose negligence caused the accident and (2) was there any breach by 1st and 2nd defendants of the statutory duly imposed by section 3(1) of Cap. 126

The trial court found that no admissible evidence was led in support of the alleged negligence against the two drivers and dismissed plaintiff’s claim. On appeal to the Court of Appeal, the latter court allowed the appeal and entered judgment for the plaintiff. On further appeal to this court by the defendants, the incompetence of the action was raised for the first time. It is important to set out the particulars of error complained of: They are

“(a) The second defendant was not a juristic person because he was not alive when the plaintiff/respondent instituted his action in 1972 under Suit HCJ/29/72 and no legal personal representative was appointed by the court,

(b) The vicarious liability of the first defendant depended on the established liability of the second defendant,

(c) The service of the Writ of Summons in Suit HCJ/29/72 on the dead second defendant through the first defendant who was not appointed the legal personal representative of the second defendant, is void and all the proceedings of the trial court and those of the Court of Appeal are automatically void”.

In the course of his consideration of the issue Oputa JSC observed at pp, 387 – 388 or the second report:

“The plaintiff’s claim in the trial Court was for damages for negligence. The negligence alleged was that of the 2nd defendant, Dangana Musa. The 1st defendant/company is the owner of the trailer No. 9801 driven by Dangana Musa on the 22nd April 1969 – the day of the accident, The liability of the 1st defendant is not direct but consequential and vicarious. It rests on the successful action against the 2nd defendant. (Italics is mine)

The learned trial judge in this case on hand relied on the underlined portion of this passage in coming to his decision.

On the validity of service of the writ against the 2nd defendant on the 1st defendant Oputa JSC held that the service was invalid and concluded at p. 395.

“I hold that the Ijebu-Ode High Court lacked the necessary competence to carry on this case against the 2nd defendant. If then the trial court could not validly deliver any judgment against the 2nd defendant, and since the liability or otherwise of the 1st defendant depended wholly on a verdict against the 2nd defendant then the Court of Appeal was wrong in its judgment against the 1st defendant/appellant. My answer to question No 1 for determination is that the action against the 2nd defendant was a nullity not because he was dead when the Writ was issued, but because there was no application by the plaintiff for an order under order 15 rule 6A/4 R.S.C. (England) for the court to appoint someone else to carry on the action. The action was also and thereby a nullity because there was no proper service of the Writ against the 2nd defendant through his such representative appointed by order of Court.” (Italics is mine)

It is the italicized part of the passage above that the court below, per Ogebe. JCA. relied on in arriving at its own conclusion which is being attacked in this appeal. I shall come back to this case later in this judgment.

The plaintiff has drawn our attention to James v. Mid motors (supra) where this court considered the law of the liability of a principal for the act of his servant or agent Aniagolu JSC who read the judgment of the court observed at page 51 of the report:

“The general law has been stated that a corporation aggregate is liable to be sued for any tort provided that:

(1) it is a tort in respect of which an action will be brought against a private individual;

(2) the person by whom the tort is actually committed is acting within the scope of his authority and in the course of his employment as agent of the corporation; and

(3) the act complained of is not one which the corporation would not in any circumstances, be authorized by its constitution to commit unless perhaps the corporation has expressly authorized the act. (See Volume 9, Halbury’s Laws of England, 4th edition paragraph 1374).

Among the acts for which a corporation can be held liable in tort is fraud. Not being a human person the corporation or company of necessity, acts through human beings who are its agents or servants and the corporation or company, like every master. is liable for the fraud committed by its servant or agent in the course of its service,”

It is interesting to observe that although the case was fought on the basis of the vicarious liability of a master for the tort (in the case, the tort of fraud) of his servant or agent, the servant or agent was never made a party to the case, This notwithstanding. this court entered judgment against the master and in favour of the plaintiff. There are numerous other cases in the law reports both in this country and in other common law jurisdictions, where only the master was sued, Coming now to the case on hand, the two courts below held that the non-joinder in the action before them of Mosudi Akanbi, the defendant’s driver was fatal to the plaintiffs action. Order 7 rule 10 of the High Court (Civil Procedure) Rules, Cap 65, Laws of Bendel State of Nigeria, 1976 (applicable at all times relevant to this case) provided:

“10(1)No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties. and the parties may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

( 2). The court or a judge may, at any stage of the proceedings. Either upon or without the application of either party, and on such terms as to the court or a judge may seem just order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names or any parties, whether plaintiffs or defendants who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions. ”

The effect of this rule has been determined by this court in such cases as Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 11-12 SC 1; Uku v. Okumagba (1974) 1 All NLR (pt.1) 475; Okoye v. Nigerian Cons. & Furniture Co. Ltd. (1991) 6 NWLR (Pt.302) 692; Laibru Ltd. v. Building & Civil Engineering Contractors (1962) 2 SCNLR 118; Ekpere v. Aforije (1972) 1 All NLR (Pt.1) 220, (1972) ANLR 224. And that is that no cause or matter shall be defeated by reason of the non-joinder of parties and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. Failure to join as a party a person who ought to have been joined will not render the proceedings a nullity on ground of jurisdiction or competence of the court. It is only where a person is a necessary party in the sense that that person is likely to be affected by the result of the action that his joinder becomes essential. For the court ought to have before it such parties as would enable it to “effectually and completely adjudicate upon and settle all the questions” in the suit – see: Uku v. Okwuagba (supra): Peenok Investment Ltd. v. Hotel Presidential Ltd. (supra):Performing Rights Society Ltd. v. London Theatre of Varieties Ltd. (1924) AC 1 at p. 14 where Viscount Cave said:

“Further, under Order XVI, r. 11 (as it then was), no action can now be defeated by reason of the misjoinder or non-joinder of any party; but this does not mean that judgment can be obtained in the absence of a necessary party to the action, and the rule is satisfied by allowing parties to be added at any stage of a case.”

See also: Kunstler v. Kunstler (1969) 2 All ER 673. Can it be said that Mosudi Akanbi is a necessary party who is likely to be affected by the result of the action against the defendant I rather think not. Nor do I think that his presence is necessary in order to enable the court “effectually and completely adjudicate upon and settle all the questions” in the action, I think the plaintiff could prove its case against the defendant without joining Mosudi Akanbi. It was for him to produce sufficient evidence to establish the liability of Mosudi Akanbi for the accident. it would be for the defendant to rebut the evidence for the plaintiff thereby defeating its claim. If anything, it was the defendant who would need the presence of Mosudi Akanbi and ought to have moved the trial court to join him or call him as a witness. I cannot see how plaintiff’s case could be defeated by the failure of the defendant to do so. Looking at the question on hand from another angle, the master and his servant are joint tort-feasors. The learned authors of Salmond on the Law of Tons, 17th edition, paragraph 167 at page 442 define who are joint tort-feasors in these words:

“Persons are to be deemed joint tort-feasors within the meaning of this rule whenever they are responsible for the same tort – that is to say, whenever the law for any reason imputes the commission of the same wrongful act to two or more persons at once. This happens in at least three classes of cases – namely, agency, vicarious liability, and common action. i.e. where a tort is committed in the course of a common action,a joint act done in pursuance of a concerted purpose …. …..

In order to be joint tort-feasors there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage. The injuria as well as the damnum must be the same.”

See also The Koursk (1924) p. 140, 156, 159. A master is always treated as a joint tort-feasor with the servant for whom he is vicariously liable – Jones v. Manchester Corporation (supra); Dougherty v. Chandler ( 1946) S.R. (N.S.W.) 370, 375 where Jordan CJ. stated:

“If a number of persons jointly participate in the commission of a tort, each is responsible, jointly with each and all of the others, and also severally, for the whole amount of the damage caused by the tort, irrespective of the extent of his participation.”

Being joint tort-feasors, therefore, a plaintiff is at liberty to chose his victim; he may decide to sue either of the master and servant separately or both of them jointly – See: Salmond on The Law of Torts at page 443. Where he sues one of them separately and succeeds, this is not a bar to an action against the other who would if sued, have been liable as a joint tort-feasor in respect of the same damage. The question that may arise is as to contribution between the joint tort-feasors. And this question is taken care of by (in the present proceedings) sections 14 & 15 of the Torts Law, Cap. 164 Laws of Bendel State of Nigeria, J 976 which provide:

“14. Where damage is suffered by any person as a result or a tort (whether a crime or not)-

(a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would if sued, have been liable as a joint tort-feasor in respect of the same damage;

(b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered or for the benefit of the estate or of the wife, husband, parent or child of that person. against tort-feasors liable in respect of the damage (whether as joint tort-feasors or otherwise) the sums recoverable under the judgment given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action;

c. any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.

15. In any proceeding for contribution under this Part the amount of the contributions recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.”

I now return to Management Enterprises v. Otusanya (supra) where Oputa JSC is reported to have said:

‘The liability of the 1st defendant is not direct but consequential and vicarious. It rests on the successful action against the 2nd defendant . I hold that the Ijebu-Ode High Court lacked the necessary competence to carry on this case against the 2nd defendant. If then the trial court could not validly deliver any judgment against the 2nd defendant, and since the liability or otherwise of the 1st defendant depended wholly on a verdict against the 2nd defendant then the Court of Appeal was wrong in its judgment against the 1st defendant/appellant”.

It is this passage that the two courts below relied on in holding that the plaintiff’s failure to join the defendant’s driver in the present proceeding was fatal to his case. With profound respect to their Lordships of the two courts below, I think they misconceived the true purport or meaning of the expressions – “successful action”, “any judgment against the 2nd defendant”, “a verdict against the 2nd defendant” used by the learned Justice of the Supreme Court in the passage. From the welter of authorities on the point- statutory, judicial and academic some of which I have cited in this judgment – it is a finding of liability against the servant that results in the master’s liability. In other words, in an action against the master the plaintiff to succeed must produce sufficient evidence from which the court makes a finding of fact to the effect that the servant is liable for the tort complained of. That is, the plaintiff must establish the liability of the servant in order to succeed against the master in an action.

I believe that when Oputa JSC used those expressions in the passage in his judgment he meant findings of fact of liability against the servant (the purported 2nd defendant in the case) must be made before there could be a successful action against the master (the 1st defendant in the case). To suggest otherwise,would mean that this court, per Oputa JSC, was laying it down that in every case of vicarious liability, the servant must first be successfully sued before the action against the master or that both must be jointly sued and a verdict entered against the servant before the master could be held accountable for his servant’s tort. Such would not only be absurd and lead to injustice but would also run against the grain of all authorities – both Nigerian and foreign – on the point. A person who has suffered damage as a result of the tort of the servant of a master would not be able to recover simply because the servant is dead or has absconded and disappeared into thin air. Such a situation would undoubtedly encourage a master to keep his servant out of the reach of the injured person. I do not think this court meant to create such a state of injustice by its judgment in Management Enterprises v. Otusanya, nor or alter the existing state of the law. It is interesting to note that the trial court in that case found that the liability of the 2nd defendant (the deceased driver) for the accident was not established.

The conclusion I reach is that Management Enterprises v. Otusanya is no authority for the finding of law made by the two courts below. And as that finding is inconsistent with the existing law, I find no hesitation in concluding that it is wrong. Equally so, I must hold, and do hold, that the case Consortium Steel Plant Aladja v. Mrs. Angelika Akindejoye – CA/B/128/87 decided by the court of Appeal on 3rd Nov. 1987 was wrongly decided. I therefore, resolve the question put before us in plaintiff’s favour and set aside the decisions of the two courts below on it. This conclusion, however, is not the end of this appeal. The learned trial judge went into the merits or the case and after proper evaluation of the evidence before him found as a fact that negligence was not proved against Mosudi Akanbi. Nor were the damages claimed proved either. In the result he dismissed the suit on its merits. There was an appeal against this part as well, of the judgment of the trial court to the Court of Appeal but the latter court made no pronouncements on that part of the appeal to it. The plaintiff did not appeal to this court complaining against the refusal or failure of the court below to give a verdict on its complaints against the trial court’s findings of fact on the merits of the case. But the defendant is seeking in this appeal an order remitting the case to the Court of Appeal for the appeal to be considered on its merits.

Before I proceed further I like to comment briefly on the course taken by the Court of Appeal in this case. Ogebe JCA in his lead judgment said:

“The answer to the first issue is a capital Yes. Since this issue disposes of this appeal, I shall not engage in an academic exercise in discussing the other issues.”

This approach to the issues placed before the court is, to say the least. unfortunate. The course taken, while permissible with the final Court of Appeal is not always the proper course for an intermediate court to take. Unless in the clearest of cases, an intermediate court should endeavour to resolve all issues put before it. There are decided cases of this court which enjoin a trial court even where it has dismissed an action to consider and pronounce on the quantum of damages to be awarded in the event of the plaintiff finally succeeding. In Odunayo v. The State (1972) 8-9 SC 290 at 296. Sowemimo JSC (as he then was) delivering the judgment of this court observed:

“Although Mrs. Solanke’s argument before the appeal court, was on a different aspect from that raised by Mr. Adedeji, the learned counsel who defended the appellant at the Ado-Ekiti High Court, nothing was said in the judgment of the Appeal Court about the points she had raised. The result of this was that, on a further appeal before us, learned counsel had to address us on the decision of the High Court as ‘confirmed by the Western State Court of Appeal.’ In a capital offence, there is the right of a further appeal from the decision of the Western State Court of Appeal to this court. Such appeal should in normal circumstances be directed against the decision of the Western State Court of Appeal. As no reasons were given why they rejected the new points raised before them by Mrs. Solanke, this court had to embark upon a consideration of the evidence and judgment of the court of trial on the basis that the judgment of that court had been adopted by the Appeal Court. There must be, and there are a number of cases where it is most desirable, especially in the case of an intermediate court of appeal, that the final Court of Appeal, which is the Supreme Court of Nigeria, should have the benefit of the opinion of that court on points raised before it, should it come up for further consideration by this court. We did not have that benefit in this case and so we have had to have recourse to the evidence and judgment at the High Court.”

Considering that this simple case of negligence commenced in March 1983, I think justice will be met if this Court rather than send the case back to the Court below for the resolution of Issues (2) & (3) placed before it, exercise its powers under section 22 of the Supreme Court Act Cap. 424, Laws of the Federation of Nigeria, 1990 and rehear the case on the printed record. After going through the evidence led at the trial and the arguments proffered in the briefs of the parties in the Court below I am satisfied that the findings of fact made by the learned trial judge on merits of the case are adequately supported by the credible evidence before him. I have no reason to fault those findings. And in the light of those findings of fact I am of the view that plaintiffs case was rightly dismissed.

Although the issue canvassed in this appeal is resolved in plaintiffs favour, this is of little comfort to the plaintiff. Having regard to the conclusion I have just reached this appeal must be and is hereby dismissed by me.

I make no order as to costs.

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SC.74/1994