Introduction
Vicarious liability is a common law doctrine of tort law that imposes strict, no-fault liability on one person for a tort committed by another. Its most common application is in the employment context, where an employer is held liable for the tortious acts of their employee. As a common law country, Nigeria received the principles of English law, including the doctrine of vicarious liability. Consequently, the position under Nigerian law is substantially similar to that in England and Wales. For vicarious liability to be established, two main conditions must be satisfied: firstly, that the tortfeasor was an employee of the defendant, and secondly, that the tort was committed during the course of their employment. This essay will briefly analyse these two elements within the Nigerian legal framework, drawing comparisons with the English common law principles upon which it is based.
Establishing the Employment Relationship
The first crucial step in establishing vicarious liability in Nigeria is to prove that the person who committed the tort was an employee. The courts must distinguish between a contract of service (an employer-employee relationship) and a contract for services (a relationship with an independent contractor). An employer is generally only liable for the torts of an employee. The traditional test for determining this relationship is the 'control test', which asks whether the employer had the power to control not just what the employee did, but also the manner in which it was done.
Nigerian courts have adopted this test from English law, but also recognise its limitations in the context of modern and complex working relationships. As a result, the courts often apply a multiple test, considering a range of factors. In the Supreme Court of Nigeria case of UBN PLC v Ajabule [2011] 11 NWLR (Pt 1258) 152 SC, the court outlined several factors to be considered, including the power to select and hire, the payment of wages, the power to control the method of work, and the power to dismiss or suspend. This approach demonstrates a move away from relying solely on the control test and aligns with developments in other common law jurisdictions, which take a more rounded view of the economic reality of the relationship. This holistic approach is necessary to deal with situations where the employee has skills and expertise not possessed by the employer.
Torts Committed in the Course of Employment
Once an employment relationship is established, the claimant must then prove that the tort was committed ‘in the course of employment’. This does not only mean acts that the employer has expressly authorised. It also covers acts that are a wrongful and unauthorised mode of doing something that is authorised. The leading Nigerian authority on this point is the Supreme Court case of Ifeanyi Chukwu (Osondu) Co Ltd v Soleh Boneh (Nig.) Ltd [2000] 5 NWLR (pt. 656) 322. In this case, the court held an employer liable for a fire caused by one of its employees, even though the specific act of lighting a fire was not authorised. The court found that the employee was carrying out his duties (in this instance, as a watchman) and the tortious act was connected to this employment.
The test is whether the employee’s act was so closely connected with their employment that it would be fair and just to hold the employer liable. However, liability has its limits. An employer will not be held liable if the employee was acting on a ‘frolic of his own’, meaning the act was so unconnected with their job as to be an entirely personal act. This principle, drawn from English law, ensures that the scope of vicarious liability is not extended indefinitely.
Conclusion
The doctrine of vicarious liability in Nigeria is fundamentally based on principles inherited from English common law. The two-part test requiring an employment relationship and a tort committed in the course of employment remains the core of the legal analysis. As shown in cases like UBN PLC v Ajabule and Ifeanyi Chukwu (Osondu) Co Ltd v Soleh Boneh (Nig.) Ltd, the Nigerian judiciary has applied and developed these principles in a manner consistent with their English origins. The primary "comparative" point is that there is very little divergence; Nigerian law in this area is a direct application of received English principles. While this reliance on established common law provides legal certainty, it also means that the development of the law in Nigeria often mirrors developments in England, and may in future need to adapt more specifically to the unique economic and social circumstances of Nigeria.
References
- Ifeanyi Chukwu (Osondu) Co Ltd v Soleh Boneh (Nig.) Ltd [2000] 5 NWLR (pt. 656) 322 (SC)
- Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1
- UBN PLC v Ajabule [2011] 11 NWLR (Pt 1258) 152 (SC)
