National Oil & Chemical Marketing Plc V. Kamardeen Leye Adewusi & Ors (2007)

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KUMAI BAYANG AKAAHS, J.C.A.

The 1st Respondent was the Plaintiff while the 2nd, 3rd, 4th Respondent and the Appellant were the Defendants respectively in suit No.I/142/97. There were 34 cases in all and even though there was no formal consolidation of the cases, counsel to (he parties and the trial court agreed that suit No. I/142/97 between KAMARDEEN LEYE ADEWUSI v. (1) SAMUEL AZU, (2) SAMUEL GRAZE (3) ISMAILA ADEDIRAN & NATIONAL OIL & CHEMICAL MARKETING PLC should be treated as a test case for the other cases. In the court below the plaintiff claimed in paragraph 31 of the Amended Statement of Claim filed pursuant to order of court dated 1st August, 1997 as follows:-

“31 WHEREOF the plaintiff claims against the defendants jointly and severally the sum of N1,581,100.00 damages suffered by the plaintiff as a result of the negligence of the 3rd defendant who in the course of his employment negligently drove vehicle No. OY 3682 AB on the 15th of May, 1996 at Dugbe Alawo a public highway and caused the tanker to somersault spilled oil and caught fire which destroyed the plaintiff’s property.

PARTICULARS

The sum of N1,425,200.00 as special damages.

The sum of N1, 156,000,00 as General damages.

The Plaintiff also claims:-

a. Loss of profit from the dale of Writ at the rate of N6,000,00 per day till judgment .

b. Interest at the rate of 10% from the date of judgment till payment of judgment debt”.

The 2 respondent was the registered owner of the tanker and he gave it to the 3rd respondent who in turn engaged the services of the 4th respondent as the driver to convey and distribute the petroleum products to different filling stations from the NNPC depot at Apata Ibadan. In compliance with the directions of NNPC, the tanker was painted in the colour of the Appellant Company with its name inscribed on it. Before the fire incident, there was a contract of haulage between the 3rd respondent and the appellant wherein it was agreed that the appellant would make use of the tanker provided by the 3m respondent to transport and distribute petrol to the appellant’s filling stations in Ibadan. The 2nd and 3rd respondents contested the 1st respondent’s claims and part of their defence was that they had no control of the tanker and its driver, the 4th Respondent, who was driving the tanker that caused the damage to the claimants who were awarded damages at the lower court. The appellant on its part claimed that the 3rd respondent was an Independent Contractor and the 4th respondent was his servant. The 4th respondent was engaged by the 3rd respondent to drive the tanker and he actually was the driver at the lime of the accident. The Appellant also denied and seriously contested the respondents’ claims and allegations that the tanker belonged to her, that she was the employer of the 4th respondent and was therefore not vicariously liable for the alleged negligence of the said 4th respondent.

In support of their case, the parties gave evidence. The 2nd and 3rd respondents called witnesses but did not testify in person. The 4th respondent testified in person. There were witnesses who testified on behalf of the appellant. The other plaintiffs who agreed that suit No. I/142/97 should be used as a lead case thereafter gave evidence regarding their claims for damages and judgment was given against the defendants jointly and severally. Dissatisfied with the said judgment the appellant who was the 4th defendant at the lower court appealed to this court. The appellant formulated the following four issues for determination:-

1. Whether the learned Chief Judge was right when he held that the appellant was also vicariously liable for the negligence of the 3rd defendant.
2. Whether from the evidence led in this case the learned trial Chief Judge was right to have adjudged the 4th respondent negligent in the driving of the vehicle at the time of the accident
3. Whether the learned trial Judge was right not to have considered all the issues properly raised by the appellant before him before arriving at a conclusion that the appellant was vicariously liable for the negligence of the 4th respondent, the driver of an Independent Contractor.
4. Whether the learned trial Chief Judge was right to have awarded the special and general damages when the respondents did not strictly prove their entitlements to such amounts as required by law.

The 1st respondent filed a Respondent’s Notice pursuant to Order 9 Rule 2 Court of Appeal Rules, 2007 (formerly Order 3 Rule 14(1) Court of Appeal Rules 2002) urging this court to vary the judgment of the lower court dated the 21st June, 2000 in the following manner:-

“the 4th defendant being the owner of the petrol which the 3rd defendant was carrying to the 4th defendant’s depot was liable in damages to the plaintiff when the petrol escaped and caught fire and damaged the property of the plaintiffs”.

In his Brief of Argument, the 1st respondent urged this court to strike out Ground 5 in the Notice of Appeal since no issue was framed from it and it was therefore deemed abandoned. He noted that issues 1 and 4 were the same. He proceeded to formulate the following three issues for determination namely:-