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BEKS KIMSE NIGERIA LIMITED
EBIOTU AFRICA & ANOR
IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 13TH DAY OF FEBRUARY, 2015
BEFORE THEIR LORDSHIPS
PHILOMENA MBUA EKPE, JCA
HAMMA AKAWU BARKA, JCA
UGOCHUKWU ANTHONY OGAKWU, JCA
BEKS KIMSE NIGERIA LIMITED – Appellant(s)
Frank Fubara Esq. – For Appellant
Aroye Asabakene Esq – for the 1st Respondent
TORT AND PERSONAL INJURIES – JOINT TORT FEASORS: liability for tort covered by servant-master relationship – whether discretion of plaintiff to elect the party or parties to proceed against is limited – relevant considerations thereto
CONSTITUTIONAL LAW -JUDGMENT AND ORDER: delivery of judgment – constitutional duty to deliver court decision in writing not later than 30 days after conclusion of evidence and final addresses – constitutional duty to furnish all parties to the cause or matter determined with duly authenticated copies of decision within seven days of the delivery thereof – whether there are exceptions thereto
COMMERCIAL LAW – AGENCY: Disclosed and undisclosed principal – liability of a principal for the tortious or contractual wrong of an agent – relevant principles thereof
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the High Court Delta State sitting in Bomadi by Justice P. J. O. Anigboro delivered on the 6th day of August, 2009 in Suit No.HCB/31/2009. In his considered ruling, the learned trial judge dismissed the appellant’s motion on notice for an order striking out the name of the appellant from the suit and accordingly dismissing the entire suit.
The plaintiffs reliefs in the Lower Court are as follows:
The ground upon which the said application was based was that the suit as constituted discloses no reasonable cause of action against the appellant and that the appellant being an employee/agent of the 2nd respondent is therefore an agent of a Disclosed Principal.
The action from which the ruling appealed against emanated was commenced by the 1st respondent vide a writ of summons and statement of claim both filed with leave of court on the 27th day of April, 2009. Appellant’s statement of defence was filed with leave of court. The 1st respondent then filed a reply to the appellant’s statement of Defence. Ruling was delivered on the 6th day of August, 1990.
Being dissatisfied with the said ruling which dismissed the appellant’s application, the appellant appealed against same, hence this appeal.
The notice and grounds of appeal are found at pages 36 – 38 of the record.
Learned counsel for the appellant filed his brief of argument dated 12th June 2012 and deemed filed on the 8th day May 2014.
The 1st respondent filed his brief of argument which was dated the 7th day of May 2013 and deemed filed on 8/5/14.
The 2nd respondent also filed his brief of argument dated the 2nd day of August 2013 and deemed filed on 8/5/14.
In his brief of argument learned counsel for the appellant raised 2 issues for determination as follows:
Learned counsel for the 1st respondent on his part raised two issues for determination to wit:
Whether the principle of agent of a disclosed principal applies only in contract and not in tort as in this instant case which is founded in Tort
Whether from the writ of summons and statement of claim filed in the suit the appellant is an agent of a disclosed principal and ought not to be sued as a party to this suit.
The 2nd respondent in his brief of argument raised a sole issue for determination as follows:
Was the trial court right to have held that the appellant was a proper party in the suit and that there was a reasonable cause of action against it?.
I have taken into consideration all the issues raised and couched by all the parties and I have decided to adopt issue No.2 as raised in the brief of the 1st respondent as it encompasses all the other issues raised by the other parties and it reads thus:
“Whether from the writ of summons and statement of claim filed in the suit, the appellant is an agent of a disclosed principal and ought not to be sued as a party to this suit.”
Learned counsel for the appellant in his brief settled by frank Fubara Esq. submitted that the principle of law which frees an agent of a disclosed principal from liability is not limited to damages in contract alone but is also applicable to damages in torts. That liability in the circumstances is fixed and immutable for torts authorized and subsequently ratified by the principal, He then called in aid the following cases:
Learned counsel also submitted that it is admitted that the appellant is an independent contractor engaged by the 2nd respondent to carry out works at the respondent’s Tuoma B. Location and that the principle of vicarious liability requiring the suing of the principal tort feasor does not arise. He however distinguished the above scenario from the instant case where the appellant in relation to the 2nd respondent is an independent contractor acting as an agent engaged under contract to render the services that resulted in the alleged tortuous act which gave rise to the suit in the Lower Court. He further opined that the learned trial judge erred in law when he held that the principle of law which frees an agent of a disclosed principal from liability applies only in contract and not in tort as to make the appellant a necessary party to the suit even when there are sufficient grounds to strike out the appellant’s name from the suit as an agent of a disclosed principal.
Learned counsel further submitted that where the principal of an agent is disclosed or known, the correct party to be sued for an act done or neglected to be done is the disclosed principal. He then cited the following authorities:
He further maintained that the 1st respondent in the writ of summons and statement of claim paragraph 8 referred to the appellant as an employee and agent of the 2nd respondent and also that in the same vein, the 1st respondent averred in paragraph 13 that he was promised by a certain Chief Endoni Diriseimor that the 2nd respondent would compensate him for the alleged damage to his properties by the appellant. Learned counsel concluded that the implication of these averments is that the appellant is an agent of a disclosed principal.
Counsel then concluded that where pleadings filed by the 1st respondent/plaintiff does not disclose any reasonable cause of action due to the status of the appellant as an agent of a disclosed principal, the Lower Court lacked the jurisdiction to entertain the suit against the appellant and the trial court ought in the circumstance to have dismissed the action as it affects the appellant. He then cited the following cases in aid – ADETONA V. EDET (2002) 3 NWLR (Pt.669) 186 @ 190 Paras E-F; NBC PLC V. EZEIFO (2001) 12 NWLR (Pt.726) 11 @ 28-29 Paras G-A.
In reply learned counsel for the 1st respondent submitted that in the ordinary law of Agency, the agreement is that both parties should act for one another. That it is therefore trite that agency arises mainly from a contract or express or implied agreement between the parties. See ESSO WEST AFRICAN INC V. ALI in the practice book of Nigeria Commercial Law and agency by KINGSLEY IKEM IGWEIKE page 77 particularly at page 80 paragraph 3 where it was held inter-alia: “it is the duty of an agent to carry out any instruction that may be given to him by the principal and such agent cannot depart from the instructions, even though he reasonably believed that in so doing, he was promoting the interest of the principal: failure to carry out an instruction of the principal may therefore involve the agent in liability to the former”.
Learned counsel further submitted that a person is liable not only for torts committed by him, but also for those torts if he acts outside the ostensible authority of the principal, as in this case.
He further stated that the appellant, an agent of the 2nd respondent who cleared and destroyed the 1st respondent’s property due to the 2nd respondent’s oil exploration activities is not exempt from liability. That the person who directed and the person who carried out the instructions are both vicariously liable for acts of trespass in tort particularly since the appellant was directly involved in the destruction of the 1st respondent’s property and that the 1st respondent can maintain an action against any or both of them in accordance with ORDER II RULE 6 of the High Court (Civil Procedure Rules) 1988 of Bendel State as applicable to Delta State see the Practice book of Kodilinye and Aluko on ‘Nigeria Law of tort” (1999) 2nd edition) page 255. IYERE V. BENDEL FEED AND FOUR MILLS (2008) 7-12 S.C, 151, 168, it was held that non-Joinder of the employee is fatal to the suit. James V. Mid-Motors Nig. Co. Ltd (1978) 11-12 S.C. at 13 page 68 (Reprint) 25. IFEANYI CHUKWU OSONDO CO. LTD V. SOLEH BONEH LTD. (1993) 3 NWLR (Pt.280) at page 246.
Learned counsel emphasized the fact that it was the tortuous act of the appellant that resulted in the loss of the 1st respondent’s properties, which act does not exempt the appellant from being sued for acts of trespass in tort. That the appellant during the clearing of the location site acted outside the ostensible authority of the 2nd respondent and is therefore liable for damages as joint tort feasor in the present case. See the following authorities as cited: ORDER II RULE 6 OF THE HIGH COURT (CIVIL PROCEDURE RULES) 1988 OF DEFUNCT BENDEL STATE AS APPLICABLE TO DELTA STATE (SUPRA) The Practice book of Kodilinye and Aluko on “Nigeria Law of Tort” (1999 2nd edition) page 225 (Supra) Iyere V. Bendel Feed and Flour Mills (2008) 7-12 SC. 151, 168, (Supra). That non-joinder of the employee is fatal to the suit. JAMES V. MID MOTORS NIG. CO. LTD (1978) 11-12 S.C 13 at page 68.
Learned counsel then concluded that the claim is for trespass on the property of the 1st respondent by the joint acts of both the appellant and the 2nd respondent and that as a result the 1st respondent is entitled to damages for the joint acts of both the appellant and the 2nd respondent.
Learned counsel for the 2nd respondent in his brief settled by HAROLD ERHABOR ESQ. of KEN E. MOZIA (SAN) & CO submitted that the general principle of law is that a master is liable for any wrong act committed by his servant while acting in the course of employment. See TUBERVILL V. STAMP (1697) 1 LD RAYM. 264; That a person takes the place of another so far as liability for the tort is concerned. Also that a master is always treated as a joint tortfeasor with the servant for whom he is vicariously liable. He then cited the case of JONES V. MANCHESTER CORP. (SUPRA); DOUGHERTY V. CHANDLER (1946) S.R. (N.S.W) 370 at 375 where the court thus 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, also severally, for the whole amount of the damage caused by the tort, irrespective of the extent of his participation”.
That being joint tort feasors, a plaintiff is at liberty to choose his victim who may be either the master and the servant separately or both of them jointly. He then referred to SALMOND ON THE LAW OF TORTS, 17th Ed. 443 and also the case of DUMEZ (NIG) LTD V. UKPENI (1991) where the Court of Appeal thus stated:
“It is trite law that an agent who commits a tort on behalf of his principal and the principal are joint tort feasors and may be sued jointly or severally”.
Learned counsel further submitted that on the issue of whether the appellant was a proper or necessary party in his case at the Lower Court he referred to ORDER 11 RULE 3 OF the Bendel State High Court (Civil Procedure) Rules 1988 applicable in Delta State and reproduced as follows:
“All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment”.
In addition, learned counsel also cited the authority in Order 11 Rule 3 of Kaduna State High Court (Civil Procedure) Rules 1987. To further buttress the foregoing principle as elucidated, counsel again referred to the case of ADENIPEKUN V. ADEPARUSI (1994)2 NWLR (Pt.329) 705 @ 715 Para A where the Court of Appeal stated as follows:
“In other words, the former 1st, and 2nd defendants wrote the letter complained of as agents of a disclosed principal, and so it is their principal that should have been sued either alone or in conjunction with their agents, but certainly not the agents alone’.
Learned counsel then contended that the 1st respondent’s statement of claim which he reproduced in his brief of argument has disclosed a reasonable cause of action against the appellant who he urged the court to adjudge a proper party to the suit in the Lower Court.
I have carefully considered the submissions of all learned counsel in this appeal. The sole substantive prayer sought by the appellant/1st defendant in the Lower Court is an order striking out the name of the 1st defendant from the suit and accordingly dismissing the entire suit for reason of the fact that:
The learned trial judge in a considered ruling found in favour of the plaintiff/1st respondent in the following conclusive words:
“The court holds that the joinder of the applicant to the suit is proper and in accordance with Order 1 Rule 6 of the 1988 Rules, The Court holds that there is a reasonable cause of action against the applicant. In view of the above the court holds that the motion lacks merit and the prayer sought is refused; the motion is hereby dismissed”.
It is common legal parlance that the principles of vicarious liability and joint tort feasors are principles applicable to the law of tort and invariably the statement of claim becomes the determinant factor in the existence of a reasonable cause of action against the appellant in the suit. Paragraphs 8, 11 and 12 of the statement of claim of the 1st respondent in the Lower Court clearly reveal a reasonable cause of action and the said paragraphs are hereby reproduced for clarity:
The learned trial judge also held in his ruling that “There is no doubt in the mind of the court that there are copious allegations made against the applicant in the averments set out. The court also found that the deposition in para 5(c) was to the effect that the applicant was alleged to have been present on the land of the plaintiff where the properties of the plaintiff were allegedly damaged. Suffice it to say that since the appellant was seen to have created some activities on the land where the properties of the 1st respondent were situate, it can then be rightly concluded that there is a reasonable cause of action to warrant the suit in the Lower Court. The trial court held likewise and I am in total agreement with the decision of the Lower Court that the statement of claim disclosed a reasonal cause of action. See NWANKWO V. ONONEZE – MADU (2009) 1 WLR 671 @ 677 Para 8 & 9.
On the proper party or parties to be sued, the general disposition of the law is that an employer is liable for the wrongful acts of his employee authorized by him or for wrongful modes of doing authorized acts. The main grouse of the appellant is that he ought not to have been sued alongside the 2nd respondent in the Lower Court as he had been authorized by the latter to carry on the alleged tortuous acts for which he had been sued by the plaintiff/1st respondent in the court below. The necessary and sufficient conditions for liability are that the relationship of master and servant exists and also that the servant would have committed the tort in the course of his employment. For a master to be liable for the conduct of his servant, the question that comes to the fore is whether the servant is in the first place liable. If the answer is in the affirmative, then the 2nd question is whether the employer ought to shoulder the responsibility of his servant. In the case at hand, I hold the humble view that the appellant is a necessary party to the suit in order to ascertain the liability of the master. This is so by virtue of the fact that it was the singular act of the appellant that caused the institution of the suit in the Lower Court by a third party who is the plaintiff/1st respondent.
In this case there has to be a nexus between the 3rd party who is the 1st respondent and the principal who is the 2nd respondent. The appellant is therefore that missing link between the two aforementioned parties particularly since the act or wrong complained of falls within the course of the appellant’s employment. There is therefore the necessity to join the appellant as a party in the suit and the trial judge rightly found it so.
It is worthy of note that the appellant and the 2nd respondent were sued as joint tortfeasors at the Lower Court. It therefore stands to reason that the cause of action against them is the same, with the same pieces of evidence to prove their case. I therefore agree with the learned counsel for the 2nd respondent that allowing this appeal would be tantamount to a discharge of the appellant who is indeed the dramatis persona in the court below.
Even at the risk of repetition I still stand by the principle that a master is always treated as a joint tortfeasor with the servant for whom he is vicariously liable. See JONES V. MANCHESTER CORP. (1952) 2 QB 852 at Page 870. Being joint tortfeasors therefore a plaintiff is at liberty to choose his victim. He may decide to sue either the master or the servant or both of them jointly.
The law is clear on the premise that an agent who commits a tort on behalf of his principal and the principal are joint tortfeasors and may be sued jointly or severally. See DUMEZ (NIG) LTD. V. UKPENI (1991) 4 NWLR (Pt.188) 734 @ 743.
See also ORDER 11 RULES of the Bendel State High Court (Civil Procedure) Rules 1988 applicable in Delta State.
ORDER 11 RULES of the Kaduna State High court (Civil Procedure) Rules 1987.
I shall however conclude by referring to the dictum of Igeh JSC at pages 366-367 in SALMON ON THE LAW OF TORT where he clearly stated as follows:
“It is beyond dispute that an agent who commits a tort on behalf of or on the instruction of his principal is along with the said principal, a joint tortfeasor in law. The same is true where a servant commits a tort in the course of his employment. He and his master are in law equally joint tortfeasors as the law in appropriate cases, imputes the commission of the same tort or wrongful act on both of them jointly”.
In the light of all of the foregoing, I hold the view that the appellant is a necessary party in the suit before the Lower Court and consequently this appeal is adjudged as having no scintilla of merit and I do hereby dismiss it accordingly. Consequently, the ruling of the Delta State High Court delivered by Justice P. J. O, Anigboro on the 6tn day of August 2009 in Suit No.HCB/31/2009 is hereby affirmed. I make no order as to costs.
Before I finally conclude this judgment, I have deemed it expedient to allude to the fact that having heard and reserved the appeal on the 5th of November 2014, Judgment ought to have been delivered not later than the 4th of February, 2015. It is trite, that by virtue of the provision of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended,-
every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of decision within seven days of the delivery thereof.
Nonetheless, the above provision of the Constitution, notwithstanding, it is a fact that the Judiciary Staff (JUNSUN) have embarked upon a nationwide strike with effect from 05/01/15. Consequent upon the timely and most commendable intervention of the Hon. Chief Justice, all the Federal Courts (the Court of Appeal, inclusive) were only able to resume duties from the 26/01/15. However, all state courts in the Federation remain closed, as JUNSUN indefinite strikes still continues.
Thus, in my considered view, the delay in delivering the Judgment within the 90 days time limit has not in any way overreached the respective parties. See subsection (5) of Section 294 of the Constitution. Indeed, the provisions of Section 294 of the 1979 Constitution are akin fundamental principles of fair hearing as enshrined in the 1999 Constitution (Supra). The most fundamental question is whether or not a reasonable person who witnessed the trial, or peruses the Record of Proceedings of the court, would have the impression that the delay in the delivery of the Judgment outside the constitutional time limit of three months has occasioned a miscarriage of justice upon the Appellant. As alluded to above, my answer to that pertinent question is that no miscarriage of Justice would have been caused. See MUHAMMED VS. KANO N.A (1968) 1 ALL NLR 424 @ 426; NNAJIOFOR VS. OKONU (1985) 2 NMLR 686; AKPAN vs. THE STATE (1986) @ UNITY BANK PLC VS. ADAMU (2013) LPELR – 2204 (CA); HARUNA VS. UNI. OF AGRICULTURE MAKURDI (2005) 3 NWLR (PT.912) 233; (2004) LPELR – 5899 (CA).
HAMMA AKAWU BARKA, J.C.A.:
I had the privilege of reading in draft the judgment just read by my Lord, Philomena Mbua Ekpe JCA.
I agree with the reasoning and conclusions reached therein. The question to be answered in this appeal to my mind is whether the agent or employee who commits a tort on behalf of his principal, the said agent/employee and the principal are not joint tortfeasors? It has been established in law that such agent who commits a tort on behalf of his principal are joint tortfeasors and can be sued either jointly or severally.
In a case not dissimilar to the present case in this appeal, this court in Alhaji Lai Mohammed vs. Chief Afe Babalola (SAN) 2011 LPELR 8973, my Lord Tsammani JCA, guided by the decisions in Pan Brothers Ltd vs. Landed Properties Ltd (1952) All NLR page 22; Management Enterprises Ltd & Ors. Vs. Johnson Otusanaya (1987) 4 SCNJ 110; Ifeanyi Osondu Co. Ltd vs. Bolel Sonei Nig Ltd (2000) 3 NWLR (Pt.656) 322, held that in situations of this nature, the plaintiff is at liberty to either sue the tortfeasors jointly, or pick which amongst the tortfeasors to sue.
I do agree therefore that the ruling of the Lower Court delivered on the 6th of August 2009 in suit HCB/31/2009 cannot be faulted and it is hereby affirmed by me. The appeal is dismissed; and I abide by my Lord’s order on costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.:
I read in draft the judgment just delivered by my Lord, Philomena Mbua Ekpe, JCA. His Lordship has insightfully and exhaustively dealt with the issues thrust up for determination in this appeal. I agree with and adopt His Lordship’s reasoning and conclusions. Having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I assert my concurrence that the inexorable conclusion is that the appeal is devoid of merit. I also join in dismissing the appeal. The Ruling of the Lower Court in Suit No.HCB/31/2009 delivered on 6th August 2009 is hereby affirmed. I abide by the consequential orders made in the lead judgment.