Nigerian Tobacco Company Ltd. V. Alloysius Olumba Agunanne (1995)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C. 

The plaintiff’s claim against the defendant as stated in para. 8 of his Amended Statement of Claim was for the sum of N500,000 damages for:

“breach of duty and alternatively for the negligence of the defendant’s servant.”

The defendant denied the plaintiff’s claim whereupon pleadings were ordered, filed and exchanged. At the trial the plaintiff testified for himself and called three other witnesses while two witnesses testified on behalf of the defendant.

The facts of the case were simple. The plaintiff was at all material times a management trainee in the employment of the defendant. He was employed as a salesman in 1964 and rose to the rank of management trainee in 1975. He moved about in one of the defendant’s vehicles while performing and discharging his official duties. On the 5th day of April 1976 he was on duty and on his way to Jos from Enugu his station. He travelled in the defendant’s company vehicle registration No. LAD 7423 which at all material time was driven by defendant’s driver and servant, one Danjuma Magaji.

On this day and along Jos – Pankshin Road he was involved in an accident when the vehicle in which he was traveling left the tarred road and hit a concrete culvert on the right hand side of the road. He sustained many injuries, some of them permanent. He was rushed semi-conscious to Jos General Hospital from where he was later transferred to a mission hospital, also in Jos.

He also received specialist treatments at the Guiness Eye Clinic Kaduna and the Orthopaedic Hospital Enugu. The plaintiff maintained that the accident was caused by the negligence of defendant’s driver Danjuma Magaji and nothing else. He has remained in the employment of the defendant until January 1978 when he was retired on health grounds as a result of the accident.

The defendant did not seriously dispute the facts as narrated above. It agreed, that both the plaintiff and the driver, Danjuma Magaji, were its servants and employees at all material times; It also agreed that the plaintiff was one of its senior staff whose post was pensionable. The retirement age was 55 unless he resigned or his appointment terminated. The defendant however averred that it –

“strenuously denied that the driver of the said vehicle drove or in any way managed the same negligently or that the accident was in any way caused by the negligence of the said driver who was under the control and supervision of the plaintiff.”

The defendant also contended that it cannot at any rate be held responsible for the tort of one servant against another committed in the course of their employment under the doctrine of common employment which it claimed was applicable in Plateau State where the accident herein happened. In a reserved judgment the learned trial Judge Iguh J. (as he then was) considered the evidence from both sides and held on page 69 of the record thus ”

I am satisfied that the plaintiff has proved a case of negligence against the driver Danjuma for which the defendants are vicariously liable.”

He concluded on page 73 that –

In the result the plaintiff’s action succeeds and there will be judgment for the plaintiff against the defendant in the sum of N22,000.00 being general damages for the ‘injuries and losses sustained by” the said plaintiff on the 5th day of April 1976 as a result of the negligence of the defendant’s servant.”

Dissatisfied with the judgment of the High Court, the defendant appealed to the Court of Appeal, Enugu Division. The following questions were submitted for determination –

“1. Whether upon the pleadings and evidence led the learned trial Judge was right in making a finding of negligence against the appellant’s driver.

2, Whether upon the pleadings and evidence led the learned trial Judge was right in holding that the doctrine of common employment did not apply.

3. Whether in the circumstances of this case Exhibit was not a material document which ought to or could have affected the weight to be placed on the evidence of the respondent as regards how the accident happened
4. Whether the learned trial Judge was right in making an award of N7,000 under the head “future loss of earnings” in view of the findings he had made thereon.”

The Court of appeal dispassionately considered all the above issues in its judgment delivered on the 16th day of February 1987 and came to the conclusion that the appeal failed and dismissed it with costs.

Still not satisfied with the judgment of the Court of Appeal, the defendant has now appealed to this Court. Only one ground of appeal was filed and the single issue identified for determination on page 3 of the brief runs thus –

“Whether on the pleadings and the evidence led the Court of Appeal was right in holding that the defence of common employment did not succeed.”

Both sides filed and exchanged briefs of argument and made additional oral submissions at the hearing.

Chief Williams S.A.N. for the appellant said he did not quarrel with the statements of the lower courts as to what the defence of common employment amounted to. He however submitted that apart from the cases which establish the principle, the other cases where it was applied to the facts of those cases and, which the lower courts relied upon were irrelevant. He said the facts of the case in hand must be applied independently to the principle and that the pleadings and evidence in this case established common employment. He said paras 3 & 4 of the Amended Statement of Claim which were admitted by paras 5, 6, 7 & 7A of the Amended Statement of Defence, in so far as the duties of both respondent and the appellant’s driver were concerned, established that the respondent and appellant’s driver were in common employment having regard to what amounts to common employment. He referred to the evidence of the respondent on page 14, lines 14 – 27 which he said was not controverted. He said the gist of the defence of common employment was that where the work of one person was so related to the work of another person that the risk of injury to one person due to the negligence of another was not merely fortuitous, but was a special risk involved in the relationship so that such risk must be deemed to have been in the contemplation of the servant when he entered into his contract of service, such servant was said to be in common employment with the other person. He said the test was one of relationship i.e. whether their employment brought them together at the time and place of the accident in carrying

out some activity in common. The following cases were cited in support –

1. Radcliffe v. Ribble Motor Service Ltd (1939) A.C. 215
2. Miller v. Glasgow Corporation (1947) A.C. 368
3. Glasgow Corporation v. Bruce or Neilson (1948) A.C. 79

4 .Lancaster v. London Passenger Transport Board (1948) 2 All E.R. 796

5. Coldrick v. Partridge Jones & Co. Ltd. (1910) A.C. 77

It was also submitted that to infer common employment it was not necessary as wrongly stated by the trial court to produce a contract of employment in evidence. He refereed to Radcliffe v. Ribble Motor Services Ltd (supra). He said the lower courts were wrong to have held that on the facts the defence of common employment was not established by the appellant. The court was urged to allow the appeal and dismiss respondent’s claim.

Mr. Njemanze learned counsel for the respondent in reply submitted that for the doctrine of common employment which is a common law principle to apply, two conditions must be fulfilled thus –

1. The servant injured and the servant causing the injury must have been fellow servants i.e. they must be servants of the same master;
2. They must at the time of the accident have been engaged in a common work. The case of Lancaster v. London Passenger Transport Board (supra) was cited in support. He also referred to

Salmond on the Law of Tort 17th Edition.

Counsel said the learned trial Judge correctly stated the doctrine and properly applied same to the facts of the case and rightly came to the conclusion that the defence failed. It was stressed that while the respondent was a management staff, Danjuma Magaji who caused the accident was a driver showing that they performed different works in the appellant’s company. That the doctrine does not apply as in this case.

“Where the injured man and the negligent co-employee are not engaged in the same common work or are not fellow labourers in the same work or are engaged in different departments of duty.”

He referred to Pollock v. Charles Burt Ltd. (1940) 4 All E.R. 264 and Radcliffe v. Ribble Motor Services Ltd. (supra). He said the application of the doctrine was not automatic and referred us to Nigerian Commercial Law and Practice by J. Olakunle Orojo Vol. 1 1983 Edition, page 477, para. 8.66.

It was further submitted that the appellant did not give any evidence relating to the fact of common employment and that the lower courts were right on the authorities to have dismissed the defence after due consideration. We were urged to dismiss the appeal.

As shown above the only issue for determination in this appeal is whether on the facts of the case defence of common employment applied. The same issue was argued before the trial High Court and the Court of Appeal. They both respectively came to the same conclusion that the defence failed.

The learned trial Judge considering the defence said on page 57 of the record that-

“The evidence of the plaintiff in this case which I accept as substantially true is that on the material date, a defendant’s employed driver, Danjuma Magaji was assigned to convey the plaintiff in the defendant’s vehicle number LAD 7423 to Jos on the official tour of the Jos Division. The plaintiff stated that as they took off from Jos, the driver Danjuma was speeding excessively ………………………..I am however satisfied that the driver Danjuma was driving at such a speed in such circumstances which made it possible for his car to career off the tarred road and to collide with a concrete culvert on the right hand side of the said road. It was the impact resulting from this collision that inflicted diverse very serious injuries on the plaintiff, injuries which he gave in evidence and which I unhesitatingly accept as proved.”

He continued on page 62 thus –

“I will now consider whether the defendants who are the employers of both the plaintiff and the said driver Danjuma, can be vicariously liable for this negligence of their servant. In this regard the defendants have relied on the common law doctrine of common employment and have submitted that they cannot be liable on negligence of their servant under the above doctrine.

At common law a master was not responsible for negligent harm done by one of his servants to a fellow servant engaged in a common employment with him. For this to apply the servants had to be employees of the same master and must be engaged in common employment at the time of the accident in the sense that the skill and care of one were of such special importance to the other by reason of the relationship between their services that the risk of injury to one was the natural and necessary consequence of the other’s misconduct in failing to show such skill and care.”

Applying the above principles and relying on various authorities including Radcliff v. Ribble Motor Servants Ltd (supra); Miller v. Glasgow (supra); PolloCk v. Charles Burt Ltd (supra); Metcalfe v. London Passenger Transport Board (1939) 2 All E.R. 542 and McGovern v. London Midland & Scottishrly Co. & Ors (1944) 1 All E.R. 730 amongst others, the learned trial Judge came to the conclusion on page 69 of the record thus –

“It appears to me that the risk to which the plaintiff was exposed while he was being driven by the defendant’s driver Danjuma on the material date has not been proved to be the particular or natural risk of his employment and I am for all the reasons I have given above unable to hold that the doctrine of common employment has been proved to be applicable to this case.

I am satisfied that the plaintiff has proved a case of negligence against the driver Danjuma for which the defendants are vicariously liable.”

The Court of Appeal also dealing with the same doctrine of common employment concluded in the lead judgment of Maidama J.C.A. (of blessed memory) on page 138 of the record thus –

“On the authorities which I have referred to above and which I hereby adopt, I am in full agreement with the learned trial Judge’s finding that the doctrine does not avail the present appellant. The appeal on this ground therefore fails.”

I am also clearly of the view that the doctrine or principle of common employment did not avail the defendant on the facts of the case and that the lower courts were right in rejecting it.

Chief Williams’ submission that the doctrine applied, revolved around para. 3 & 4 of the Amended Statement of Claim only which he said were admitted by paras. 5, 6, 7 & 7A of the Amended Statement of Defence.

Paras. 3 & 4 of the Amended Statement of Claim read –

“3. It was the duty of the plaintiff to go on sales promotion drive in vehicle provided by the defendant and driven by a servant of defendant. It was equally the duty of the defendant to employ a competent and experienced driver to ensure the safety of the plaintiff in course of his employment.

4. On the 5th day of April 1976 the plaintiff was in the course of his employment and was travelling along Jos to Pankshin Road in the defendant’s vehicle registration No. LAD 7423 driven by the defendant’s servant one Danjuma Magaji, whoso negligently managed and drove the said vehicle on the said road that it left the road and hit a concrete culvert, in consequence whereof the plaintiff sustained severe injuries and has suffered loss and damage.

Particulars of Breach of Duty

(i) Failing to take any or any adequate precautions for the safety of the plaintiff while in the course of his employment.

(ii) Failing to employ a competent and experienced driver to drive the plaintiff while on duty.

(iii) Exposing the plaintiff to the risk of accident by engaging to drive him a driver whom the defendant knows or ought to have known is incompetent and inexperienced.

And paras. 5, 6, 7 & 7A of the Amended Statement of Defence also read –

“5. The defendant admits paragraph 3 of the statement of claim to the effect that the duties of the plaintiff included going on sales promotion drives whenever its expected to provide qualified such sales promotion drivers.

6. In further answer to the said paragraph 3, the defendant avert that at all material times and on the day of the accident, the defendant provided a qualified and competent driver to drive the plaintiff on his sales promotion drive and that the said driver was under the control and supervision of the plaintiff.
7. The defendant admits paragraph 4 of the statement of claim only to the extent that on the date stated, the plaintiff was as averred, travelling in vehicle Registration No. LAD 7423, driven by one Danjuma Magaji; but strenuously and unreservedly deny that the said driver of the said vehicle drove or in any way managed the same negligently or that the accident was in any way caused by the negligence of the said driver, who was under the control and supervision of the plaintiff.

7A. By reason of the facts pleaded and/or admitted by paragraphs 3, 5, 6 and 7 of the Statement of Defence to wit –

(i) that the plaintiff was employed by the defendant;

(ii) That the duties of the plaintiff included going on sales promotion drives in the defendant company vehicle driven by a qualified and competent driver provided by the defendant;

(iii) and that Danjuma Magaji a driver employed by the defendant pursuant to (ii) above drove the plaintiff on the day in question on his sales promotion drive; the plaintiff is not entitled to succeed against the defendant having regard to the fact that the plaintiff Danjuma Magaji were in common employment at the time of the accident.

Now, the doctrine of common employment as the authorities show would apply where the party injured is not a stranger but a fellow-servant of the party causing the injury and engaged in a common employment with him. In such a case the master is at common law not liable for injuries caused by the negligence of his servant in the course of his employment. But to exempt the master from liability two conditions as rightly submitted by Mr. Njamanze for the plaintiff must be satisfied.

First, the servants must be fellow-servants, in other words they must be in the service of a common employer. It is not enough that the work should be common, but both parties must be servants of the same master (See Swanson v. North Eastern Rly (1878) 3 Ex. D341. Also workmen do not cease to be fellow-workmen because they are not all equal in point of station or authority (See Wilson v. Merry (1868) LRI SC. & Div. 326.

Secondly, they must be engaged on a common employment, that is to say, the work must be common, but it need not be identical. The employment must be in common, in the sense that the safety of the one servant must in the ordinary and natural course of things depend on the care and skill of the others (See Morgan v. Vale of Neath Rly (1864) 5B &S 570). Whether the work is common is in each case a question of degree. There is however no common employment where the employees are engaged in different departments of duty (Pollock v. Charles Burt Ltd. (1941) IK. B. 121. (See generally Clerk & Lindsell-on The Law of Torts, 10th Edition page 124 etc.

Applying the above principles to the case in hand I have no doubt that the pleadings and evidence referred to by Chief Williams clearly go to establish the first condition set out above only. That is that the servant injured (the plaintiffs), and the servant causing the injury, the driver, Danjuma Mogaji, were fellow servants employed in the services of their common employer, the defendant. In my view there was no evidence before the court that the two servants herein were engaged on a common employment. The lower courts so found and I agree with them.

In the case of Radcliffe v. Ribble Motor Services Ltd. (supra), Lord Macmillian delivering judgment in the House of Lords had this to say on page 648 of the report

“It is, therefore, essential in a case such as the present, where the doctrine is invoked in circumstances of a quite exceptional character, to examine carefully whether the case falls within the principle upon which the doctrine is professedly based. One thing is clear. It is not enough, for the doctrine to apply, that the negligent employee and the injured employee should be in the service of a common master. They must be serving him in a common employment, or as it was put by Lord Cranworth, L.C., “engaged in a common work.” The chauffeur who drives his master to the works is not in a common employment with his master’s employees in the works, though they have a common employer. In the ordinary case of common employment, the nature of the employment is such as to bring the employees into association with each other in carrying on some activity in common, and it is from this association that there arises the risk that one of those engaged may be injured by the negligence of another also so engaged.”.

So it is in this case. The negligent driver in this case cannot in any way be said to be engaged in a common employment with the injured respondent herein. And in addition, the accident cannot be said to be any particular or natural risk of respondent’s employment. (See also Glasgow Corporation v. Bruce or Neilson (supra).

It is not correct as argued by Chief Williams that the learned trial Judge said

“Since the full conditions of service of the respondent were not before the court, the court was handicapped in determining whether the defence of common employment avails.”

what the trial Judge said on page 67 of the record reads –

“The full conditions of service of the plaintiff, if they are in writing, were not tendered in evidence to assist the court to determine the actual and real duties of the said plaintiff by virtue of his said employment.” This is clear enough.

Since the defence of common employment was only raised by appellant, it was for it to lead evidence to establish it. It was certainly not the duty of the plaintiff/respondent to adduce evidence thereof for the use of the appellant. Be that as it may, the learned trial Judge considered the available evidence and as I said, rightly came to the conclusion that the defence was not established by the appellant.

Before I close there is one point which worries my mind and which I would irresistibly like to comment briefly upon. The point is whether it is correct to say that the common law doctrine of common employment is yet to be abolished in the Northern States of Nigeria as stated by the learned trial Judge on page 63 of the record where he said –

“The doctrine is yet to be abolished in the Northern states of Nigeria and is by virtue of Section 28 of the High Court Law of Northern Nigeria 1955 applicable till this date in the said Northern States.”

The learned trial Judge had held on page 62 of the record thus –

“The doctrine of common employment was applicable in England in the year 1900 and up to 1948 when it was abolished by the Law Reform (Personal injuries) Act, 1948.”

Now Section 28 of the High Court Law Cap. 49 Laws of Northern Nigeria 1963 volume II reads:-

“28. Subject to the provisions of any written law and in particular of this section and of sections 26, 33 and 35 of this Law –

(a) the common law;

(b) the doctrines of equity; and

(c) the statutes of general application which were in force in England on the’ 1st day of January, 1900

shall, in so far as they relate to any matter with respect to which the Legislature of Northern Nigeria is for the time being competent to make laws, be in force within the jurisdiction of the court.”

First, it is doubtless that the year 1900 in section 28(c) above is only applicable to statutes of general application. The common law and doctrines of equity in section 28(a) & (b) could only respectively mean the current common law and current doctrines of equity.

Secondly, section 28 of the High Court Law (cap. 49) above came into force in 1955 while the Law Reform (Personal Injuries) Act, 1948 which abolished the doctrine of common employment in England was passed in 1948.

So clearly in whichever way one looks at it the common law of England adopted under section 28(a) of the High Court Law above did not and could not have included the doctrine of common employment which had been abolished in England in 1948. Consequently therefore when the cause of action, the accident herein, occurred on 5th April 1976. the defence of common employment was no longer available because it had been abolished in England as long ago as 1948 even before the High Court Law of Northern Nigeria was enacted in 1955. The learned trial Judge was manifestly in error when he held as he did above that the doctrine was yet to be abolished in Northern States and therefore applicable by virtue of section 28 of the High Court Law of Northern Nigeria, 1955 above.

The following passage to which we were referred by Chief Njemanze in the Nigerian Commercial Law & Practice by J. Olakunle Orojo. Vol. 1983 Edition. Page 477 para. 8.66 is also relevant. It reads –

“Although the doctrine of common employment was abolished in England in 1948 by the Law Reform (Personal Injuries) Act 1948,. in Nigeria, the doctrine was only abolished in Bendel, Ogun, Ondo and Oyo (formerly Western State) in 1958, in the Federal Territory of Lagos, now in Lagos State, in 1961 and in Anambra, Imo, Rivers and Cross River States (formerly Eastern Nigeria) in 1962. With the abolition of the doctrine, any term in a contract of employment purporting to exclude the liability of the employer with regard to his liability for injuries sustained by his worker through the default of a fellow-worker is void as being against public policy. It should be noted that in the Northern States, the doctrine has not yet been abolished and is therefore part of the law of these States;”

With greatest respect to the learned author, I think it is not correct to say that the doctrine of common employment is still part of the law of the Northern States as I have endeavoured to show above. The doctrine was in fact never part of the common law of Northern Nigeria, certainly not after 1948, and it is consequently not necessary or even relevant for a law to be passed in any Northern State abolishing the doctrine. The position therefore is that the doctrine of common employment did not exist as a defence in the instant case. The appeal again fails.

I must confess that this point never seriously occurred to any of us or any of the counsel at the hearing. He glossed over it as was the case in the Court of Appeal, and it was when I was preparing the draft judgment that I observed its significance and then decided to address the point. Counsel probably ought to have addressed us fully on the point. Nevertheless no harm or damage is done to the appellant herein which has before now already lost its appeal under the single issue submitted for determination (see for example Ajao v. Ashiru (1973) 11 Sc. 23, Atanda v. Lakanmi (1974) 3 sc. 109; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566).

In the circumstances, this appeal fails and it is hereby dismissed with one Thousand Naira (N1,000.00) costs to the plaintiff/respondent.

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SC.31/1989