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.”
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).”
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/-. 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 against the second and third defendants when first defendant being a party interested and who should be put on notice was in fact not put on notice nor made party to the said motion.’ Instead of calling upon the learned counsel for the appellant, Mr. I.E.A Urie, to argue his various grounds of appeal, the Western State Court of Appeal did a curious thing. The Court called upon the learned counsel for the respondents, Mr. P.O. Aderemi, to agree that “there was no finding at all of negligence throughout the judgment,” which the latter did and the case was “adjourned sine die for judgment.”
Because of the impropriety of this strange procedure adopted by the Western State Court of Appeal, we quote the court record in its entirety as follows:-
“Court: Mr. Aderemi, we have gone through this record and we note that your claim is founded on the negligence of recklessness of the 2nd and 3rd defendants upon which the 1st defendant was vicariously seen to be liable. There was no finding at all of negligence throughout the judgment. Could you assist us about this because this is the basis of your case? Aderemi: None whatsoever. It is unfortunate. Court: We do not think we should call on Mr. Urie to argue this appeal in view of the answer of Mr. Aderemi because that disposes of the whole appeal. Court: Mr. Aderemi, do you wish to address us at all on any matter whatsoever? Aderemi: There is nothing at all that I can say. It is most unfortunate that no finding was made by the learned Chief Justice. Court: Adjourned sine die for judgment
(Sgd) E.A. Ademola JUSTICE OF APPEAL
The Western State Court of Appeal thereupon proceeded, on the basis of the record of appeal alone, to observe:
“If the learned Chief Justice had directed his mind to the issue of negligence vel non he would have had to consider whether upon this evidence and in the circumstances he could make a finding that the gas leaked in fact, that the lighted cigarette held by the driver in fact caused the explosion which the witness heard or whether it was the leak of the gas that in fact hissed like the deflation of a motor tyre. But to this he did not advert this mind and it is difficult to say that conclusion he could have reached had he given sufficient and adequate consideration to the issue.’ With reference to the learned Chief Justice’s reference to the Henderson case and in respect of the question of the doctrine of res ipsa loquitor, the Court further observed:
“That portion of the House of Lords decision which deals with evidential burden would in our respectful view deal with the doctrine of res ipsa loquitur while considering the issue of liability in negligence. But then as we have pointed out the issue of negligence was not being considered at all by the learned Chief Justice and it is only in consideration of this that the doctrine of res ipsa loquitor could be considered by him. We fail to see therefore, with respect to him, how the decision in the Henderson case could be of assistance in the determination of vicarious liability which was the only issue he held out to consider.”
The Court accordingly allowed the appeal, set aside the judgment and order of the learned Chief Justice and dismissed the appellant’s claim. It is from this decision of the Western State Court of Appeal that the present appeal has been brought before this Court. The grounds of appeal as finally permitted by us to be argued are:
“6. The Court of Appeal failed to give due consideration to the evidence of the 1st Plaintiff Witness which evidence was accepted by the learned trial Chief Justice.
7. The Court of Appeal erred in law to have called on the Counsel for the Respondent, in that Court, to show cause why the appeal should not be allowed, instead of allowing the appellant’s counsel, in that Court, to argue his case; and thereby shifted the burden from the appellant who ought to have begun to the respondent who should only reply to the arguments of the appellant.
8. The decision of the Court of Appeal is against the weight of evidence.
In arguing grounds 1 and 2 together, Mr. Akintoba, learned counsel for the appellant, pointed out that the appellants did not raise any issue as to the non-finding of negligence by the learned Chief Justice at the trial of the suit, and that it was the Western State Court of Appeal that formulated it suo motu and based its whole judgment exclusively on this question. Learned counsel submitted that this is a serious error in law, and drew attention to this Court’s rulings in two recent cases: Shittu Adeosun v. Lawani Babalola & Anor. (1972) 5 S.C. 292, at pp. 299 and 300 where we said:
“It is apparent on the face of the record that, on the appeal coming up for hearing and without hearing arguments from learned counsel for the appellant
“1. The Court of Appeal failed to distinguish between a case where the Court accepts the uncontradicted evidence of the Plaintiff and the case where the Defendants join issue with the Plaintiff on the ground of negligence and therefore came to a wrong conclusion.
2. The Court of Appeal erred in law on holding that the trial court did not consider the issue of negligence when the learned trial Chief Justice accepted that Plaintiff’s evidence which raises a presumption of negligence against the respondent’s servants.
3. The Court of Appeal erred in law in holding that the learned Chief Justice failed to direct his mind to the issue of negligence when from the judgment of the learned Chief Justice it was obvious that the doctrine of res ipsa loquitur as pleaded by the Plaintiff/Appellant and by inference had been applied.
4. The Court of Appeal erred in law in failing to apply the doctrine of Res Ipsa Loquitur to the facts of the case as on the record even if no specific findings had been made by the trial court.
5. The Court of Appeal erred in law to have allowed the appeal on a ground of law not filed by the respondent and for which leave of the court was not granted to argue any further grounds of appeal. The respondents herein in support of his grounds of appeal, the Western State Court of Appeal immediately called upon learned counsel for the appellants herein to satisfy it or to show cause why the appeal should not be allowed thereby shifting the burden from the respondents herein who ought to have begun, to the appellants.
We think, with respect, that such a method of approach especially on a third appeal in the circumstances of the present case on appeal is not only undesirable, it is palpably irregular.”
And Chief J.O. Lahan & Ors. v. R. Lajoyetan & Ors. (1972) 6 S.C. 190, at p. 200 where we again observed:
“We regret we cannot but repeat, that a procedure whereby a Court of Appeal takes up a point before parties or their counsel are heard and decides the issue is most inappropriate and irregular. We have often in the past drawn attention to the impropriety of dealing with an appeal in this way and it is our hope that this practice will be discontinued.”
We think that by framing entirely new grounds of appeal other than those filed by the appellant and granted by the court itself and by not allowing the appellant’s counsel to say a word about the appeal brought before the court, the learned Justices of Appeal were seriously in error sufficient to vitiate the proceedings and render the judgment nugatory. As can be seen from the two cases cited, this is not the first time that this Court has had to upset a decision of the Western State Court of Appeal on the ground of the impropriety of the procedure adopted by it when hearing a case on appeal from a lower Court. We are clearly of the view that the Western State Court of Appeal was in serious error when it called on the counsel for the respondent in that Court to show cause why the appeal should not be allowed instead of allowing the counsel for the appellant in that Court to argue his case; in doing so, the Court of Appeal shifted the burden from the appellant who ought to have begun to the respondent who should only reply to the arguments of the appellant.
Learned counsel for the appellant chose to argue grounds 3-8 together. His contention is that, assuming that the appellant in fact raised the issue of negligence in the present appeal, there was a finding on the issue of negligence before the court of trial. He referred to the evidence of P.W.1 who gave an eye-witness account of how his father’s house was burnt down by the negligence of the 2nd and 3rd defendants as they were fiddling with one of the cylinders while the driver held a lighted cigarette in his left hand and there was an explosion. He also referred to the evidence of James Olubobade (D.W.1) who said that he sacked both defendants as a result of the fire incident, and testified further:
“If there is gas leakage and a naked light is near, the gas can catch fire and the cylinder can explode. Our drivers and workmen are forbidden to use naked light near the gas cylinders.”
The same witness had a little earlier said:
“I sacked the two of them on 29/4/66 because I was convinced that they were at the scene of the fire accident at Odo-Ona on 28/4/66, and they were not supposed to be there.”
The learned trial Judge accepted all these pieces of evidence and summed up as follows:
“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.”
Mr. Akande, learned counsel for the respondents, conceded that the procedure adopted by the Western State Court of Appeal was improper, but argued that the Court had been right in holding that there was no evidence before the trial court on the issue of negligence of the 2nd and the 3rd defendants. He tried to argue that the fire incident was not a case of res ipsa loquitur but one coming within the Rule in Rylands v. Fletcher (1868) LR 3 HL 330 because it has to do with the accidental spreading of fire within the premises burnt down incidentally. Both as to the line of argument and to another one that the 2nd and the 3rd defendants were acting outside the scope of their employment when the fire incident took place, we think that learned counsel is in error. In Century Insurance Co. v. Northern Ireland Transport Board (1942) AC 509, the House of Lords held the employers of the driver of a petrol delivery van liable for damage caused to the plaintiff’s premises by fire as a result of the explosion caused by the exposure of a lighted cigarette held in the driver’s hands during the delivery operation; the negligence was held to have occurred in the course of the driver’s employment.
We are also of the view that the Western State Court of Appeal was in error when it held that the learned Chief Justice had not made a finding as to the doctrine of res ipsa loquitur. We think that the learned trial Judge had dealt sufficiently with the matter in his judgment. Thus, apart from the obvious irregularity of not allowing the appellant to argue his appeal at all, the Western State Court of Appeal erred when on the entirely new ground which it formulated itself and on which it purported to set aside the learned Chief Justice’s judgment and to dismiss the claim. In the result, the appeal succeeds and it is allowed. We hereby set aside the judgment of the Western State Court of Appeal and the award of costs to the respondents. The Orders of this Court will, therefore, be as follows:-
“(i) That this Appeal be and is hereby allowed.
(ii) That the judgment of the Western State Court of Appeal in Suit No. CAW/116/70 delivered on June 3, 1971, be and is hereby set aside.
(iii) That the damages amounting to £1,831: 18/-, together with the 100 guineas costs, awarded to the appellant by the High Court in Suit No. 1/235/68 delivered on June 8, 1970, be and are hereby restored, and
(iv) That costs assessed at 47 guineas be and are hereby awarded to the appellant as costs of this appeal, and costs assessed at 65 guineas be and are hereby awarded to the appellant as costs in the Western State Court of Appeal.
Other Citation: (1972) LCN/1340(SC)
