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FEDERAL SUPREME COURT OF NIGERIA
30TH MARCH, 1962
EDGAR IGNATIUS GODFREY UNSWORTH, F.J. (Presided)
JOHN IDOWU CONRAD TAYLOR, F.J. (Read the lead Judgment)
SIR VAHE BAIRAMIAN, F.J.
O. Ogunbiyi – for the Appellant.
E. Adesanya – for the 1st & 2nd Respondents. J. E. Burke – for the 3rd Respondent.
TORT AND PERSONAL INJURY LAW:- Claim for general and special damages due to the negligent driving of driver of insured person – Need to plead and prove driver was employee of the defendant and was in the course of his employment as at time of accident – Joinder of insurance company to the tort claim – Propriety thereof
INSURANCE AND REINSURANCE:- Motor Vehicle Insurance – Claim for indemnification against awards that may arise from an action for damages arising from negligent driving of driver of insured person – Where driver ona frolic of his own – Where insured owner only gave notice of suit to the insurer after its conclusion – Whether breach of condition of precedent to attachment of liability
INSURANCE AND REINSURANCE:- Claim for negligent driving against insured owner of vehicle – Joinder of insurance company to suit by insured – Propriety of – Whether insurer can by acquiescence become a proper party thereto
EMPLOYER AND LABOUR LAW – MASTER AND SERVANT:- Vicarious liability – Liability of motor vehicle owner – Where servant alleged to be on a frolic of his own – Effect – Need for same to be pleaded and proved – Section 13 of Motor Traffic Ordinance Cap. 137 and Section 38 of Road Traffic ordinance No. 43 of 1947 thereto – Effect
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER:- Order for retrial – When proper
PRACTICE AND PROCEDURE – PLEADINGS:- Master and Servant – Whether a servant being on a frolic of his own ought to be pleaded.
INTERPRETATION OF STATUTES:- Principles of wholesome or piecemeal construction – Which is more ideal?
WORDS AND PHRASES:- ’By virtue of any ordinance’ in section 30 of the Road Traffic Ordinance No. 43 of 1947- Meaning of
The plaintiffs, a trading company, sued one Komolafe and Folorunsho Fasipe in the High Court of the Ibadan Judicial Division for the sum of £1442. 10s. 0d. being general and special damages suffered as a result of the negligent driving of a private car No. 008526 by the 2nd defendant, who at the material time was the servant of the 1st defendant, and which brought about a collision between the plaintiffs’ Taxi Car. No. LB 4478 and the 1st defendant’s private car No.008526 on the Sabo Road, Ibadan.
On the 9th day of September, 1957 plaintiffs’ Counsel withdrew against the 2nd defendant who could not be traced for service, and an order was made dismissing him from the Suit. This defendant will henceforth be referred to as the driver. On the 25th October, 1957 the remaining defendant made an application seeking an order enabling him to issue and serve a “third party notice” on the Northern Assurance Company Ltd. An order was made in terms of the motion aforesaid on the 4th November, 1957 and a defence was accordingly filed by the Northern Assurance Co. Ltd. on the 12th June, 1958 in reply to the Statement of Claim filed by the 1st defendant on the 17th May, 1958.
After evidence had been adduced the learned trial Judge made the following findings in his Judgment:
Against this judgment the 1st defendant/appellant has appealed and argues six grounds of appeal in support thereof. At the close of the arguments for the appellant on the 12th February, 1962 we called on the parties to address us on whether:
It will at this stage, in view of the decision to which I have come, be convenient to deal with this point. The learned trial Judge says this in his judgment:
“Finally, Mr. Ogunbiyi on behalf of 1st defendant contended that since the driver of the Wolseley car was on a frolic of his own at the time that the accident occurred, his master could not, on the authority of the case of Storey v. Ashton (L.R.Q.B. cases 1868-9 at 476) be held liable for his negligence. This contention is completely answered by the provision of section 13 of the Motor Traffic Ordinance, Cap. 137.”
The effect of this section was to extend the common law liability of the owner of a motor vehicle by providing inter alia that such owner shall be liable for injury or damage caused through the negligent driving of his driver whether acting within the scope of his employment or not. This Ordinance was, in fact, repealed by the Road Traffic Ordinance No. 43 of 1947 which came into force on the 1st January, 1949, and which made no provision for the extension of the common law liability of the owner of a vehicle in the circumstances above described. Mr. Adesanya, for the respondent, however, sought to urge that although the Road Traffic Ordinance by virtue of section 38 repealed the Motor Traffic Ordinance, the effect of the earlier section, i.e. s.30, is to retain s.13 of the Motor Traffic Ordinance Cap. 137. The section (30) reads thus:
“Save as is provided in sub-section (1) of Section 7 nothing in this Ordinance shall affect any liability of the driver or owner of a motor vehicle or trailer by virtue of any Ordinance or at common law.
To my mind, one can only read the words “by virtue of any ordinance” as meaning by virtue of any ordinance existing, unrepealed, and I can see no force in the argument that because this section precedes the repealing section therefore the latter must be read subject to the former. It is a fundamental principle of construction of Statutes that – “Incivile est nisi tota lege perspecta una aliqua particula ejus proposita judicare vel respondene” – you can construe the Statute together as a whole and not piecemeal.
Mr. Ogunbiyi, for the appellant, has urged that:
On the first submission it is clear that the trial Judge, from the passage to which I have referred, made no finding of fact. In short, what he says is that whether the driver was on a frolic of his own or not makes no difference, for by virtue of the Motor Traffic Ordinance the owner is equally liable.
As to the second point, there is on record evidence led by the appellant and his witness Babatunji Olowofoyeku which might tend to show that the driver may have been on a frolic of his own, but for reasons which I shall now set out I am of the view that this important issue was not sufficiently treated in the Lower Court so as to enable us to come to a decision one way or the other.
In the first place, though Mr. Ogunbiyi contended to the contrary, it was not pleaded. The plaintiffs in their Statement of Claim averred in paragraph 3 as follows:
“The second defendant is a driver, and was on the 20th February 1956 employed by the first defendant.”
There is no specific paragraph of the Statement of Defence of the defendant, devoted to an admission or denial of this paragraph, but paragraph 1 of the Statement of Defence contains a general traverse and paragraph 6(c) reads as follows:
“The 1st defendant will contend at the trial that
(c) The 2nd defendant was not in the employment of the 1st defendant at the material time.”
From these one can only gather that the defence on this point was that the driver at the material time was not a servant of the 1st defendant, not that he was a servant but that at the material time he was on a frolic of his own. It may be mentioned that in the Statement of Claim filed by the 1st defendant against the Insurance Company, paragraph 6 reads as follows:
“On or about 20th February 1956 during the existence of the Policy the Car alleged to have collided with a taxi car LB. 4478, belonged to the Plaintiffs, while in charge of the driver of the defendant.”
This seems to be in contradiction to the paragraph in the Statement of Defence of this defendant to which I have earlier drawn attention.
Now in the second place evidence was led by the plaintiff in support of his case and not a single question or suggestion was put or made in support of this contention in cross-examination. It came out for the first time, admittedly without objection, when the 1st defendant gave evidence.
Finally, throughout this evidence the description of the distance from the scene of the accident to the place where the driver was to take the car was exceedingly vague and does not enable a Court of Appeal fully to appreciate the extent of the deviation from course by the driver. In the case of William N. Iko v. John Holt & Co. Ltd. & anor. 1957 2 F.S.C. 50 at page 52, (1957) SCNLR 107, this Court held that:
“I now pass to the substantial point in this appeal which is whether the driver was acting within the scope of his employment at the time of the accident. In order to decide this important question, the extent of the driver’s deviation from his normal route is most material. Unfortunately, as I have said before, there was no evidence on this point.
A little lower down the judgment continues thus:
“Applying the proper test to the facts of this case, it seems to me that as the driver was clearly doing what he was employed to do when he deviated to go and take some food, the submission that he was on a frolic of his own is not sustainable. The fact that he improperly disobeyed his instructions while on his master’s business cannot exonerate the master in the circumstances of this case.”
In view of what I have said on this point which goes to the root of the liability of the appellant, the proper order to make as between the appellant and the plaintiffs/respondents is to allow the appeal and to order a new trial before another Judge with full opportunity to both parties to put their pleadings in order. There is no need for me therefore, to deal with grounds 3 to 6 of the Grounds of Appeal which relate wholly to the issue of damages. In making the Order I am not unmindful of the fact that the Notice of Appeal complains only of those parts of the judgment awarding special damages and the finding in favour of the Northern Assurance Co. Ltd., nor of the fact that the relief claimed reads thus:
“(1) That the Federal Supreme Court may set aside the decision of the High Court in respect of the claim for indemnity by the defendant against the Insurance Company the third party enter any judgment in favour of the plaintiffs’ and costs of defending this action in both Courts by the defendant against the Insurance Company.
(2) That the Federal Supreme Court may set aside the award of £300 special damages for the plaintiff’s car.
(3) That the Federal Supreme Court may set aside the award of £763 special damages for loss of earnings on the Car.”
The liability of the appellant was based on an Ordinance which had been repealed and there can be no doubt that not only the trial Judge but also learned Counsel were not aware of the repeal, hence the failure of the appellant to appeal and seek relief on the general issue of liability to the plaintiffs/respondents.
I now turn to the liability or otherwise of the 2nd defendant. Mr. Burke, for the Insurance Company, also sought shelter behind the defence that the driver was on a frolic of his own and that as a result of this the car was being driven by an “unauthorised person” contrary to the terms of the Policy. This he held absolved the Insurance Company from liability. The relevant Clause in the Policy reads thus:
“In terms of and subject to the limitations of the indemnity which is granted by this Section to the Insured the Company will indemnify any Driver who is driving the Motor Car on the Insured’s order with his permission provided that such Driver
(a) is not entitled to indemnity under any other Policy
(b) shall as though he were the Insured observe fulfill and be subject to the terms exceptions and conditions of this Policy in so far as they can apply.”
Here too there was no foundation laid on any of the material points connected with this Clause in the Policy. Was the driver a person entitled to indemnity under any other Policy? Are the Conditions in Clause 3(b) satisfied, and finally was the driver driving ‘with the permission’ of or on the Insured’s order? Lord Goddard, C.J. said in the case of Ellis (John T.) Ltd. v. Hinds 1947, 1 A.E.R. 337 at p.339, that:
“A Company which employs men to drive their vehicles must take out a policy which will cover the user of the vehicles by their servants, but only while they are being driven on their business, because, if the Company’s servants are driving on their own account or are using their master’s vehicles without authority, the master has neither caused nor permitted the use of the vehicles.”
From this authority it is clear that a driver on a frolic of his own is not one driving “with the permission of or on the Insured’s order”. I now turn to the finding of the trial Judge dealing with the alleged breach of Condition 1 and 8 of the Policy by the appellant. Grounds 1 and 2 of the Grounds of appeal deal with this matter.
As to the breach of the Conditions – to refer the matter to arbitration – there is no need for me to say more on this ground than that even if there has been a breach, the remedy of the Insurance Company when the action is brought before arbitration is to apply for a Stay of Proceedings. Mr. Burke did not, however, press this point. As to the breach of Condition 1, which provides thus (inter alia):
“Notice shall be given in writing to the Company immediately upon the occurrence of any accident or loss or damage and in the event of any claim. Every letter claim writ summons and/or process shall be forwarded to the Company immediately on receipt by the Insured. Notice shall also be given in writing to the Company immediately the Insured shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this Policy…”
the learned trial Judge says this:
“Under Condition 1 of the agreement of insurance the 1st defendant is obliged to give immediate notice to the 2nd defendants of any prosecution that may be pending. In his evidence before me the 1st defendant admitted that he did not give the notice, even though he knew later that his driver was prosecuted and convicted.”
On this finding of fact accepted by the trial Judge, it is hard to see how the appellant was in breach of Condition 1, for it would seem that at the time he knew of the prosecution it was no longer pending. The driver had been convicted. On the whole I would allow this appeal set aside the judgment of the Lower Court and send the case back to the High Court for a retrial before another Judge. The parties to this appeal will bear their costs of the appeal in view of the unsatisfactory nature of the pleadings and the conduct of the proceedings. The costs of the abortive trial will abide the retrial.
I agree that there should be a retrial in this case. The issues involved have become confused for a number of reasons.
The first reason for the confusion is that the second defendant pleaded that the driver of the motor vehicle was not in his employment at the material time, whereas it appears from his evidence that what he really meant was that the driver was not at the material time acting in the course of his employment. The pleadings were not amended and Counsel and the Judge dealt with this issue at a comparatively late stage in the proceedings.
The second reason for confusion is one that we ourselves raised, namely, that the Judge in his judgment based liability upon a Law which had been repealed. Counsel did not raise objection to this matter being considered, and we heard the submissions of Counsel on the point. It was agreed that the Law had, in fact, been repealed, and, in these circumstances, the judgment in favour of the respondent cannot stand in its present form.
The third reason for confusion arises out of the fact that the Insurance Company was joined as a party in the action. This appears to me a novel procedure in a case of this kind, but it was acquiesced in by the Insurance Company, who did not ask for a stay in order that their liability might be determined in accordance with the terms of the policy on the termination of the Court proceedings. One result of this was that the second defendant alleged against the plaintiff that the accident occurred outside the course of the employment of the driver, but (presumably in case he should lose on this issue) he pleaded the complete opposite against the Insurance Company.
I also agree that there should be no order as to costs in this Court and that the costs in the High Court should abide the event.
BAIRAMIAN, F.J.: I concur.