Foster Sutton, P. This is an appeal from a judgment of Evelyn-Brown, J. by which he .dismissed the appellants' claim against the respondents for the sum of £2,701-19s-4d being the value of 120 bundles of corrugated iron sheets and 215 cases of beer alleged to have been converted by the respondents' servants.
Shortly put the facts, which were agreed at the trial, are as follows: By an agreement entered into by the parties on the 1st September, 1951, the respondents who are private carriers undertook to supply daily four three and a half ton motor lorries for the purpose of carrying the appellants' goods from the Customs Wharf to their stores wherever situated, and to transport goods for the appellants anywhere in the Lagos, Apapa, Ikoyi, Ebute Metta and Yaba areas. The drivers of the vehicles supplied were employed by the respondents, and between the months of September and November 1951, the goods in question which had been placed on the respondent's motor lorries for delivery to the appellants' store in Lagos were stolen by the respondent's drivers and others who were subsequently prosecuted to conviction for the thefts.
After discussing the facts and the arguments of Counsel the learned trial Judge concluded his judgment by saying:
“On the question that the Defendant cannot be liable for the felonious acts of his servant done outside the scope of his employment or authority, learned Counsel refers to Cheshire v. Bailey 1904,21, T.L.R. at page 130 and Miniz v. Silverston 1920,36 T.L.R. at page 399. Both these two cases are on all fours with the present case. It was held in both cases that theft by. a servant being outside the scope of his employment his master is not liable.
In all the cases quoted by Mr David the master was held liable where it was proved that the driver was negligent. Here, however it was the felonious act of the driver with others which caused the loss. The authorities quoted above are very appropriate to the present case. If even I hold that at the material time the driver was the serv,ant of the Defendant, he had not held out the driver as having the authority to do the act which caused the loss, he is not liable. I give judgment for Defendant with costs. . . .”
The trial Judge does not make a finding on the question whether the drivers of the vehicles were, at the material time, the servants of the respondent, and Mr Ferguson who appeared for them before us submitted that the agreement was for the loan of motor lorries and drivers for the hirers to direct.
No one I am sure would dispute the proposition that a man may be in the general employment of A and yet at the relevant moment, as the result of an agreement made between A and a third party, may be the servant of the latter. The question can only be determined in the light of the facts in each case.
On the facts in the present case I have no hesitation in reaching the conclusion that the position of the respondents under the agreement was not that of a person who lent vehicles and drivers for the appellants to direct, but of independent contractors who undertook by the use of their own vehicles and by the activities of their own servants to deliver the appellants' goods to stipulated destinations, and that at the material time the drivers were the servants of the respondents.
In support of his submission that the respondents ought to have been held liable for the loss of the goods the appellants' Counsel, Mr David, referred us to the decision of the. Privy Council in the case of the United Africa Company, Limited v. Saka Owoade, Privy Council Appeal No. 30 of 1952.
In that case the appellants were general merchants in Nigeria, and the respondent owned motor lorries and was a transport contractor. In February, 1948, the respondent went to the appellants' premises in Lagos, saw certain of their employees and solicited employment to carry goods from Lagos to the appellants' branches up country. He introduced to the appellants' employees two men whom he said were his driver and clerk and stated that when the appellants had goods for him to carry they should give them to the driver and clerk. The clerk in question attended at the appellants' premises on two occasions in March and April, 1948, and on each occasion was given certain goods namely, cigarrettes and brandy the total value of which was £4,777-9s-4d for carriage to two branches up country and the lorry driver and clerk were subsequently convicted for stealing them.
Their Lordships held that the fair inference from the facts proved in that case was that the goods were committed expressly to the respondents' servants, and that they converted the goods whilst they were on a journey which the respondent had undertaken to carry out and the conversion therefore was in the course of the employment of the respondent's servants. Their Lordships went on to say: “There is in their Lordships' opinion no difference in the liability of a master for wrongs whether for fraud or any other wrong committed by a servant in the course of his employment”. A view with which I respectfully agree.
Counsel for the respondent suggested that the difference between the present case and the one under consideration by the Privy Council is that in the latter case the transporter's conduct amounted to an express representation that his driver and clerk could safely be entrusted with the hirer's goods, but it seems to me that is a distinction without a difference, because if the transporters conduct in that case amounted to such a representation, a similar one was made by necessary implication in the present case on each occasion upon which the respondent, in conformity with his agreement, sent one of his vehicles to carry the appellants' goods.
In my view the facts in the present case are indistinguishable from those in the case their Lordships had under consideration. That being so I am of the opinion that the learned trial Judge erred in not holding, on the admitted facts, that the appellants' goods were converted by the respondent's servants in the course of their employment.
It follows that I would allow this appeal, set aside the judgment of the Court below and enter judgment for the plaintiffs for the sum of £2,701-19s-4d with costs to be taxed. The appellants should also have their costs on this appeal fixed at £35-ls:-Gd.
Jibowu, Ag. C.J. I Concur. Coussey, J.A. I concur.
Appeal allowed and Judgment entered for the Plaintiffs Appellants.