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 –