LEGAL PRINCIPLE: CIVIL PROCEDURE – Parties – Non-Joinder – Effect of Non-Joinder on Action Against Master for Vicarious Liability
PRINCIPLE STATEMENT
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. 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. To succeed against a master the plaintiff must (1) establish the liability of the wrongdoer, and prove (2) that the wrongdoer is a servant of the master and (3) that the wrongdoer acted in the course of his employment with the master.
RATIO DECIDENDI (SOURCE)
Per Ogundare, JSC, in Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) NLC-741994(SC) at pp. 4–5; Paras A–C.
"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. 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. To succeed against a master the plaintiff must (1) establish the liability of the wrongdoer, and prove (2) that the wrongdoer is a servant of the master and (3) that the wrongdoer acted in the course of his employment with the master."
EXPLANATION / SCOPE
Vicarious liability requires the plaintiff to prove three elements: (1) the servant’s liability for the tort; (2) the servant-master relationship; and (3) that the servant acted in the course of employment. The master’s liability is derivative—it depends on establishing the servant’s wrongdoing. However, this does not mandate suing the servant. The plaintiff may prove the servant’s liability through evidence in the action against the master without joining the servant as a party. The substantive requirement is proof of the servant’s tortious conduct, not joinder of the servant.