IN THE HIGH COURT OF BAYELSA STATE OF NIGERIA

IN THE YENGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

SUIT NO: YHC/15M/2018

BETWEEN:
1. MR. DUMOLAGHA JOSEPH FIEMEYA
2. MRS. SILIDIANA JOSEPH
3. MR. AKIEMINI JOSEPH APPLICANTS
(Suit for and on behalf of late Atomoboizibe
Fiemeya Joseph, of Niesemba Compound,
Dumolagha Family, Kpansia Epie Town,
In Yenagoa Local Government Area,
Bayelsa State)

AND
1. THE NIGERIA POLICE FORCE
2. THE INSPECTOR GENERAL OF POLICE
3. THE POLICE SERVICE COMMISSION
4. THE COMMISSIONER OF POLICE, RESPONDENTS
BAYELSA STATE
5. MR. NAPOLEON DAVID

1ST, 2ND AND 4TH RESPONDENTS’ WRITTEN ADDRESS

1.0 INTRODUCTION

1.1 The applicants brought this application under the fundamental

rights enforcement procedure Rules against the 1 st to 5th
respondents, the application was dated 13th day of February 2018
and filed on the 14th day of February 2018. They supported their
application with a 37 paragraph affidavit and a written address.

1.2 The 1st, 2nd and 4th respondents reacted by filing a 21 paragraph
counter affidavit deposed to by one George Ogu an inspector of
police attached to the Homicide section of the State CIID Yenagoa,
and annexed one Exhibit in Support, as well as a written address
to oppose this application.

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2.0 BRIEF FACTS OF THE CASE

2.1 The brief facts given rise to this applications are that the 5 th
respondent a police Corporal attached to the Operations
Department Police headquarters Yenagoa, was posted on night
duty at Birikari Ltd Biogbolo on the 26 th of October 2017, at about
9:00pm of that 26th October, he abandoned his duty post at
Biogbolo and went to Kpansia town on a frolic of his own without
the consent of his superior officers or his employer the Nigeria
Police and at Kpansia he was alleged to have shot one
Atomboizibe Joseph, an act done outside the authority of his
employer or any of his superior officers hence the institution of
this action against the respondents.

3.0 ISSUE FOR DETERMINATION

3.1 The issue for the court’s determination is whether an employer can
be vicariously liable for the act of his employee done outside his
duty schedule or his scope of employment while on a frolic of his
own?

4.0 LEGAL ARGUMENT

4.1 On this issue whether an employer can be vicariously liable for an

act of his Employee done outside his schedule of duty or scope of
employment of duty and while on a frolic of his own, we submit
that an Employer cannot be held vicariously liable for the act of his
Employee where the act is done outside the employees schedule
of duty and while he is on a frolic of his own.

4.2 We have deposed to in paragraphs 8, 9, 10 and 11 of our counter

affidavit to the effect that the employee 5 th respondent was posted
on official duty to Biriki Ltd Biogbolo town on the 26 th of October
2017. The duty commences at 18:00hrs (i.e. 6pm) and closes at
06:00hrs (i.e. 6am) he abandoned his duty post and went to
Kpansia on his own and short the deceased, in the circumstance,
he is on a frolic of his own, his employers’ cannot be held
vicariously liable.

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4.3 Further we submit that for an Employer to be held liable for the
act of the Employee it must be shown that the Employee
committed the act in the course of duty or Employment i.e. it must
be shown that the employee or servant was doing his master’s
job. See CHUKWU V. UHEGBUA (1963) 2 ALL NLR 209
DAIBU V. IBE & CO (1975) 7 CCHCJ 1139.

4.4 We submit again that a master will not be vicariously liable for his
servant’s action unless the plaintiff shows that the servant
committed the act during the course of his employment.

4.5 We exhibited exhibit CP1 which is the posting showing were the 5 th
respondent was supposed to be performing his master’s duty on
the 26th October 2017, he abandoned his duty post and went on a
frolic of his own which now has resulted in crime, he is to be made
personally liable for the crime he committed, after all under our
criminal law policies, there is no vicarious liability in crime, the
individual who committed the act must be made to be personally
liable for his criminal conduct, we urge your Lordship to so hold.

4.6 When an Employee is employed for the protection of citizens and

with express instructions not to misuse his free arm force order
237, is an express instruction when a police officer will use his
firearm, failure to comply with the expressly laid down rules, the
master will not be held vicariously liable, he will be personally
liable. See Beard V. London General Ominibus Comp. (1900) 2 Q B
241.

4.7 The existence of Express Prohibition will relieve the Employer of

liability, if the prohibition is such that limits the sphere of
employment. Force order 237 limits all police officers from
arbitrary use of firearms. The order provides for only six instances
where a police officer can use his firearm. Any use of firearm
outside the provisions of force order 237, the Employee or the
police officer will be personally liable.

4.8 My Lord, where such prohibition curtails the Scope of the servant’s
employment, the employer will not be liable, if the Employee does
any act contrary to the express prohibition, he is not acting in the

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 course of duty as such the employer is not liable in damages to
the applicant for the negligent act of his erring employee.

4.9 On the argument of counsel in his submissions in his address in

paragraph 3 of the page headed submissions, he quite agreed that
it is the 5th respondent that violated the deceased right not the
other respondents, the 5th respondent though a police officer, his
actions while on a frolic of his own will not be borne by the 1 st to
4th respondents we therefore urge the court to so hold.

4.10 Further we submit that where a person was negligent and does an
act after making a detour from his authorized duty or route and is
on a frolic of his own without being at all on his master’s business
(as in the present case). The master will not be liable, so held by
Parke B. in Joel V. Morrison (1834) 172 ER 1338.

5.0 CONCLUSION

5.1 Concluding my Lord, we urge my Lord, to consider our

submissions, exhibit CP1 and the fact that the 5 th respondent was
not on official duty at Kpansia on the 26 th of October 2016, he was
on a frolic of his own at the time of the incident and hold that the
5th respondent is personally liable, the 1st to 4th respondents are
not vicariously liable in damages for the death of the deceased.

May it please your Lordship.

Dated this ……………. Day of July 2018.

S.C. Njoku, Esq.,

Deputy Supt. of Police,
Legal Officer,
State CIID,
Yenagoa.
08035531461