MACHAME KASKAZINI CORPORATION LIMITED (LAMBO ESTATE) v AIKAELI MBOWE 1984 TLR 70 (CA)

MACHAME KASKAZINI CORPORATION LIMITED (LAMBO ESTATE) v AIKAELI MBOWE 1984 TLR 70 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Mustafa JJA, Makame JJA and Kisanga JJA

October 1, 1984

CIVIL APPEAL 11 OF 1984 

Flynote

Tort - Negligence - Vicarious liability - Unauthorised employee drives employer's vehicle -Scope of employment - Whether employer vicariously liable.

Tort - Costs - Appeal - Defect in preparation of record - Documents omitted - Party successful - Whether I entitled to all costs.

-Headnote

The respondent had sued the appellant and one Simon Alfayo Msomari jointly and severally in negligence for damage caused to his house and goods as well as for loss of earnings as a result of such damage. It was established as a fact that on 14th February 1977, Simon, after working hours B and without the authority or knowledge of the appellant, took and drove the vehicle to visit a relative. On his return at 8.15 p.m. he crashed into the respondent's building and was subsequently charged and convicted of reckless driving. The High Court found the appellant vicariously liable for the tort committed by Simon, his employee, despite the fact that he was not authorized to drive the employer's vehicle at all.

Held: (i) It is a question of fact whether the unauthorized act by a servant is within, or outside the scope of his employment;

(ii) Simon was not engaged in his employer's business at the material time; the visit to his relative had absolutely no connection with his employment, but was an independent act outside the scope of his employment; his driving the vehicle was an unauthorized act outside the scope of his employment.

Per curiam: Owing to the defect in the preparation of the record, only half the costs incurred in the item for the preparation of the record of appeal should be awarded to the appellant.

Case Information

Appeal allowed.

Cases referred to:

1. Marsh v Moores [1974] 2 K.B. 280

2. Canadian Pacific Railway v Lockhard [1942] A.C. 591

O. Sang'ka for the appellant

G P. Jonathan for the respondent.

[zJDz]Judgment

Mustafa, J.A.: read the following considered judgment of the court: The respondent Aikaeli Mbowe had sued the appellant Machame Kaskazini Corporation Ltd. and one Simon Alfayo Msomari jointly H and severally in the High Court in negligence for damage caused to the respondent's house and goods as well as for loss of earnings as a result of such damage. The High Court (Mwesiumo, J.) gave judgment in favour of the respondent as prayed and the appellant is appealing from that I decision. Simon Msomari has not appealed.

The appellant is a limited liability company and is engaged in farming, among other activities, in the A Moshi District. Simon, at the material time, was an employee of the appellant as a field officer. The appellant had provided Simon with a motor vehicle and a driver for his work. It was alleged by the appellant that Simon was not authorized to drive any motor vehicle of the appellant's; Simon had to use a driver. Simon had no valid driving licence.

On the 14th February, 1977, at about 8.15 p.m. Simon drove a Landrover MS 7063 belonging to the appellant and was so negligent that he crashed it into the Bar & Restaurant building of the respondent at Machame, causing considerable damage to the structure. The respondent claimed C Shs. 60,000/= for the damage to the building, Shs. 40,000/= for articles and items of furniture and utensils destroyed in the building and for loss of income arising from the cessation of the business.

As far as Simon is concerned, there was clear evidence that he was negligent and was liable for damages for his action. The appellant has submitted that, as employer, it was, in this case not vicariously liable for the tort of Simon. The appellant alleges that Simon, at the material time, was not acting in the course of his employment. The appellant also appeals against the award of damages E and the quantum.

The facts are not seriously in dispute. On the 14th February, 1977, Simon had finished work at 6.00 p.m., and the driver had parked the motor vehicle used by Simon in the garage. At 6.45 p.m. Simon without authority and unknown to the appellant, took and drove the vehicle to visit a relative, and F on his return at 8.15 p.m. he crashed into the respondent's building, and lost consciousness. Simon was subsequently charged and convicted of careless driving.

The trial judge frames five issues:

1. Whether Simon was employed by the appellant as a driver;

2. Whether, if so, Simon was driving in the course of his duties;

3. Whether Simon was negligent;

4. Whether the appellant was vicariously liable;

5. What relief.

The trial judge found that Simon was not employed as a driver, but as a field officer. He dealt with issues (2) and (3) together. He held that because (1) the appellant did not file a complaint to the police about conversion of the motor vehicle not amounting to theft against Simon but only I recovered from Simon the cost of repairs to the vehicle (2) that as a field officer Simon was clothed with apparent authority to drive the appellant's motor vehicle, A and prima facie Simon was the vehicle owner's agent (3) the action of the appellant in safeguarding and storing the damage items of goods and (4) the appellant's earlier attempts at settlement, he was of the view that Simon was driving negligently and that the appellant was vicariously liable.

We fail to understand how any of the above factors, or a combination of them, on the facts of this case, could be a reason for imposing vicarious liability on the appellant.

As Lynskey, J. stated in Marsh v Moores [1949] 2 KB 208 at 215 (and both Lord Goddard, C.J. and Birkett, J. concurred):

It is well settled law that a master is liable even for acts which he has not authorized provided they are so connected with the acts which he has authorized that they may rightly be regarded as modes, although improper modes, of doing them. On the other hand, if the unauthorized and wrongful act of the servant is not connected with the authorized act as to be a mode of doing it but is an independent act, the master is not responsible, for in such a case, the servant is not acting in the course of his employment but has gone outside it.

And he referred to, among other authorities, Canadian Pacific Railway v Lockhart [1942]A.C. 591, 599.

In Halsbury's Laws of England 4th Edition Vol. 16 paragraph 743 it is stated: In order to render the employer liable for the employee's act it is necessary to show that the employee, in doing the act which occasioned the injury, was acting in the course of his employment. An employer is not liable if the act which gave rise to the injury was an independent act unconnected with the employee's employment. If at the time when the injury took place, the employee was engaged, not on his employer's business, but on his own, the relationship of employer and employee does not exist, and the employer is not therefore liable to third persons for the manner in which it is performed, since he is in the H position of a stranger. In this case it is immaterial whether the employee in using his employer's property with his employer's permission, as long as he is clearly acting on his own behalf, or whether he is using it surreptiously, and is therefore, as regards his employer, trespasser. 

In such cases, it is a question of fact whether the unauthorized act by a servant is within, or outside A the scope of his employment.

Here it is clear that Simon was not engaged in his employer's business at the material time. He had already finished his work. He had taken the motor vehicle clearly on his own behalf, for a visit to his relative. That visit had absolutely no connection with his employment, but was an independent act B outside the scope of his employment. He was not even authorized to drive a motor vehicle. This was an unauthorized act outside the scope of his employment.

We agree with Mr. Sang'ka who appeared for the appellant that the appellant could not be vicariously liable for the negligence of Simon in the circumstances. Since we have found in favor of the appellant on the issue of vicarious liability, it is unnecessary to deal with the other grounds of appeal.

We allow the appeal, set aside the judgment and decree of the High Court in so far as it concerns the appellant, and substitute therefor an order dismissing the claim against the appellant. We order that any decretal sum if paid, be returned to the appellant. We allow costs to the appellant both here and below. However, as Mr. Jonathan for the respondent has pointed out, relevant documents like the ruling by Mwakibete, J. dated 22nd September, 1981, and the ruling by the Chief Justice dated 25th July, 1983, were not included in the record of appeal. Owing to this defect in the preparation of the record, we direct that only half the costs incurred in the item for the preparation of the record of appeal be awarded to the appellant.

Appeal allowed.

1984 TLR p74

G