KOMOLAFE & ANOR. V. ONANUGA & ORS

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NIGERIAN SUPREME COURT CASES

[1962] N.S.C.C.

KOMOLAFE & ANOR. V. ONANUGA & ORS.

5

1.

0. KOMOLAFE

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APPELLANT

2.

THE NORTHERN ASSURANCE CO. LTD

V.

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1.

B.A. ONANUGA

2.

C.A. ORABOGUN AND OTHERS

(TRADING AS ORU TRADING

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RESPONDENTS

COMPANY REG'D NO. 41995)

FEDERAL SUPREME COURT

UNSWORTH,

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F.J.

TAYLOR,

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F.J.

BAIRAMIAN,

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F.J.

30th March, 1962.

SUIT NO. FSC 138/1961

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Law of Torts- Negligent driving - Master - Servant liability - allegation

that

driver was on frolic of his own - Whether it amounts to him not being in

Master's employ - liability based on repealed ordinance - appeal allowed.

ISSUES:

1.

Whether the deviation of a driver from his route means that he was on a frolic

of his own.

2.

Whether liability would be allowed where it stems from an ordinance which has

been repealed.

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3.

Whether a driver driving with the order or permission of his master, and going

on a frolic at that time would be dis- entitled to indeminity. Or does the order

or permission entitle him to indeminity.

FACTS:

The plaintiffs successfully sued the defendants for damage resulting out of the

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negligent drivinc of the driver of the first defendant. Learned trial Judge also ab-

solved the 2nd defendant from any liability since s.13 of the Motor Traffic Ordin-

ance Cap 137 excluded liability of insurance Company when driver is on a frolic

of his own. This Ordinance was already repealed by the Road Traffic Ordinance

No. 43 of 1947. Section 38.

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HELD:

1.

Since the extent of deviation was vague, the Supreme Court can make no finding

of fact as to whether the driver was on a frolic. It is not in all instances of

deviation that the driver may be said to be on a frolic. The proper order here

is for a retrial so that the parties can put their pleadings in order.

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2.

The liability of the appellant, based on an ordinance which had been repealed,

could not hold and the appellant should have been allowed to seek relief on

this ground.

3.

The driver could not be termed an unauthorised person because a clause in

the insurance policy states that the insurance Company will indemnify any Driver

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who is driving the car on the insured's order or with his permission. 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.