Facts:

The 1st respondent is engaged in the business of the sale of equipment spare parts, leasing and hiring of equipment such as excavator machines and engines. The 2nd respondent is a staff of the 1st respondent and he is the operator/driver of the 1st respondent’s heavy equipment such as the excavator machine. The appellant is engaged in the business of general contracts, leasing and oil services in the oil Industry.

On the 9th of October 2001, the 1st respondent and the appellant signed a hiring agreement. And it contained that the excavator the appellant hired from the 1st respondent was to be used to excavate sand at the appellant’s project site at Gokana, Rivers State. The 2nd respondent was in complete control of the excavator. According to him he drove the excavator to the appellant’s site at Gokana and on arriving at the site he was ordered by the appellant to use the excavator to excavate sand and put out the fire that was raging at the site and that, It was while he was trying to put out the fire as ordered by the appellant that the fire engulfed the excavator and him. The excavator was damaged and he was hospitalized for burns.