Thread by @savndaniel

HON. FEMI GBAJABIAMILA:

STEAMCO LTD v. MARK & ORS
(2018) LPELR-45947(CA)

TORT - VICARIOUS LIABILITY

Conditions for the principle of vicarious liability to arise
"After a careful perusal of the issues propositioned by the Appellant and the impact they would

individually have on the appeal,
I feel compelled to consider issue one on its own because it would automatically dispose of this appeal if resolved in favour of the Appellant.

Throughout the length and breadth of the judgment of the lower Court, and the facts averred by the

1st
Respondent, it is distinct that no overt act on the part of the Appellant, triggered or propelled the shooting of the 1st
Respondent by the 2nd Respondent. The Appellant became involved by the reason of it having applied to the Inspector-General
of Police for the posting of

a Supernumerary Police Officer to it for the protection of its property and staff, as provided for by
Section 18 of the Police Act, 2004. The trial Court expressed that the 1st Respondent owed the obligation to prevent the 5th Respondent now the 2nd Respondent in this

appeal from infringing on the rights of ordinary citizens while on duty for the 1st
Respondent, the 1st Respondent cannot therefore be absolved of liability in the circumstance. It is clear that the Appellant was
also held liable by reason

of the incident having taken place while the 2nd Respondent was on duty for the Appellant.
As clearly stated by the Appellant's Counsel, the 2nd Respondent was not an employee of the Appellant but a Police Officer
under the Nigerian Police

Command and the Police Force is under the Command of the Inspector General of Police. The
Appellant merely applied to the Inspector General as stipulated in Section 18 of the Police Act for the services of a
Supernumerary Police Officer and the same was approved. Also as

correctly argued by the Appellant's Counsel, the actions of
the Supernumerary Police Officer while on duty as such in the premises of the Appellant is under the command of the Inspector-General of Police, and his powers, duties and immunities remain that of a Police Officer.

Now considering the issue of holding the Appellant vicariously liable for the actions of the 2nd Respondent, recourse should be
had to the decision of the Supreme Court, per Ogundare, J.S.C., in lfeanyi Chukwu (Osondu) Ltd. v. Saleh Boneh Ltd. (2000) 5
NWLR Part 656 page 322

where it held that to succeed against a master, the plaintiff must;

1. Establish the liability of the
wrongdoer, and

2. Prove that the wrongdoer is a servant of the master and

3. That the wrongdoer acted in the course of his
employment with the master.

See Young vs. Edward Box & Co. Ltd. (1951) NWLR 789; 793 where Denning L. J., said:

"In every
case where it is sought to make a master liable for the conduct of his servant, the first question is to see whether the servant
was liable.

. If the answer is Yes, the second question is to see whether the employer must shoulder the servant's liability."

His
Lordship went further to state that

"The general principle of law which has its roots in the earliest years of the common law is
that a master is

liable for any wrong even if it is a criminal offence or a tortious act committed by his servant while acting in
the course of his employment. Tubervill vs. Stamp (1697) I Ld. Raym. 264; Dyer vs. Munday (1895) 1QB 742.

This is what is
known as the doctrine of vicarious liability

which is based on the principle of law enunciated by Sir John Holt CJ in Hern vs. Nichols (c. 1700), 1 Salk 289; "one of the earliest cases on the subject wherein the learned Chief Justice pronounced. "Seeing
somebody must be a loser by this deceit. It is more reason that

he, that employs and puts & trust and confidence in the
deceiver, should be a loser than a stranger." The doctrine means that one person takes the place of another so far as liability
for the tort is concerned - see: Launchbury vs. Morgans (1971) 2 QB 245, 253.

It is the relationship of master and servant that of itself gives rise to this liability and not the old fiction that the master had impliedly commanded his servant to do what he did.

A lot has been written over the centuries, both judicial and academic on the basis for the doctrine of vicarious liability - see
for example, Kilboy vs. South-Eastern Fire Area Joint Committee, (1952) SC, 280, 285. (per Lord Cooper);

Staveley Iron & Chemical Co. Ltd. vs. Jones (1956) AC 627, 643: Morgans vs. Launchbury (1973) AC 127, at 135, 140: Maitland in P & M Vol. (ii) at 533. Going by the judgments from Sir John Holt CJ in Hem vs. Nichols (supra) to Lord Denning in Nettleship vs.

Weston(1971) 2 QB 691, 700, it would appear that the doctrine is based on public policy or as Lord Pearce put it in I.C.I. Ltd. vs.
Shatwell (1965) AC 656, 685 on "social convenience and rough justice" Viscount Dilhorne and Lord Pearson in Launchbury vs.

Morgans (supra) rationalised at p. 140 that, the phrase qui facit per alium, facit per se correctly expresses the principle on
which various liability is based. But see Stanveley Iron & Chemical Co. Ltd. vs. Jones (supra) per Lord Reid as to the qualified
use of the Latin maxim.

On the authorities as a whole, the master is liable, though guilty of no fault himself. The liability of the master is dependent on the plaintiff being able to establish the servant's liability for the tort and also that the servant was not
only the

master's servant but that he also acted in the course of his employment. The learned authors of Clerk & Lindsel on the
14th Edition paragraph 237 at page 238 state the law thus: "Liability of master for torts of servant.

Where the relationship of
master and servant -exists, the master is liable for the torts of the servant so long only as they are committed in the course of
the servant's employment. The nature of the tort is immaterial and the master is liable

even where liability depends upon a specific state of mind and his own state of mind is innocent." As clearly enunciated by the Supreme Court, it is the relationship of master and servant that of itself

gives rise to this liability and not the old fiction that the master had impliedly commanded his servant to do what he did. That is why this Court deriving strength from the case law in Ifeanyi Chukwu (Osondu) Ltd. vs. Soleh Boneh Ltd (supra)

held in S.P.D.C. (Nig) Plc vs. Dino (2007) 2 NWLR Part 1019 page 438 at 462 paragraphs F - H, per M. D. Muhammad J.C.A., (as he then was) that for vicarious
liability to arise, an alleged tort-feasor must have been employed to work for the person that is being held liable.

It is not enough for the alleged tort-feasor to be asked or even ordered to perform in a context other than employment. In the instant case, by virtue of Sections 2, 18, 19, 20 and 21 of the Police Act, the Supernumerary Police Officers were never servants of the appellant,

and the trial Court was therefore wrong to have found the appellant vicariously liable for their torts. See Obi vs. Biwater Shellabear (Nig) Ltd (1997) 1 NWLR (Pt. 484) 722; Ifeanyi Chukwu Osondu Co Ltd vs. Soleh Boneh (Nig) Ltd (1993) 3 NWLR (Pt. 280) 474.

It is clear that the 2nd Respondent herein is not a servant of the Appellant and he was not authorised by the Appellant to shoot the 1st Respondent. The 2nd Respondent is a Nigerian Police Officer under the command of the Inspector General of Police.

The judgment of the lower Court that the doctrine of vicarious liability was established as it relates to the Appellant is utterly
wrong in law. Since it is based on the existence of a master and servant relationship between the person who actually committed

the tort and the person to be held liable vicariously for such tort other than that other person or party who committed the tort i.e. the tortfeasor, the finding of the lower Court against the Appellant was based on a wrong principle of
law and on this premise

I find merit in this appeal and hereby allow the same."Per ORJI-ABADUA, J.C.A. (Pp. 23-29, Paras.A-E).

End!

STAR OPINIONS FROM LAWYERS:

"I have read your write and humbly beg to disagree with you, the vicarious liability principle you enunciated am afraid may catch up with the speaker as well as the DSS that is the employer of the officer.

Ask me how?

Answer: the vicarious liability principle may be broader than you think, do you remember the principle of 'animal taken in oxygen and exhaling carbon dioxide and plant taking in carbon dioxide and exhaling oxygen as we were thought in primarily

school, this turned out out not to be true as we advanced in our study of biology

1. In your own words the speaker fired the the officer, that means he hired him
2. Does the speaker pay the officer?

You and I know he does, all VIPs pays those security personnel attached to them

3. Hiring, firing and payment may be enough to create vicarious may likely catch up with one who performs these three acts without more.

A decisive factor may turn on under whose control was the DSS officer working at the time which the incident occurred.

Despite that he is under the employment of the DSS, I should think he was under the immediate control of the House of Representative, the Speaker and the National Assembly, who can all be jointly liable with the primary employer, the DSS.

The remedies for the probable causes of action can be pursued under either the Fatal Accidents in the Torts Law of the State, or Enforcement of Fundamental Rights for right to life.

Agree much consideration wasn't put into the wordings of the letter.

But then it is not the letter that creates the cause of action.
This is the 2nd letter coming out of the stable of the learned silk, that to me, have betrayed his clients. The 1st was the letter he wrote on behalf of D'banj to that lady that alleged she was taped by his client.