Facts:

The Appellant’s case as plaintiff against the Respondent as defendant before the High Court of Lagos State (trial Court) is that sometime in 1998, the Respondent, a construction firm, agreed with the Appellant to hire the latter’s excavator and payloader. The agreement was later reviewed by the Appellant’s letter dated 11th May, 1992 which was accepted by the Respondent through its reply dated 25th May, 1992. These two documents form the bedrock upon which the contract between the parties herein was made.

In accordance with the custom of the construction industries, the parties had right from the onset in 1998 adopted the policy of keeping the hired machineries after each day’s work in a secured fenced yard. The Respondent’s security personnel guarded the storage or packing yard. All sub-contractors who hired out equipments to the respondent accepted this policy and always complied therewith. The Appellant’s machineries hired by the Respondent were controlled and operated by operators/drivers employed by the Appellant who were responsible for ensuring that such machineries or equipments were packed in the secured yard provided by the respondent after each day’s work and when the equipments were not in use.

On 11/5/1993, the Appellant’s excavator hired by the Respondent was damaged by rioters at the Respondent’s Dolphin Estate site in Ikoyi and the thence operator was one Johnson Egwu, an employee of the Appellant, who parked it outside the fenced parking yard provided by the Respondent for parking of the hired machineries. This led to the institution of the suit by the Appellant against the Respondent; which filed a final amended statement of defence and counter-claim. After the trial, the trial court gave judgment in favour of the Appellant against the Respondent while the Respondent’s counter-claim was dismissed, The Respondent aggrieved, appealed to the Court of Appeal (lower Court), which allowed the appeal and set aside the trial court’s judgment.

Dissatisfied with the decision of the lower Court, the Appellant appealed to the Supreme Court.