Asiata Abubakar V. Alhaji Bashiru Falola & Anor (1997)
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OGEBE, J.C.A.
The 1st respondent sued the present appellant as 2nd defendant and the present 2nd respondent as 1st defendant before the High Court of Kaduna in a writ of summons endorsed as follows:
‘The plaintiff claims against the defendants jointly and severally the sum of N220,000 (Two hundred and twenty thousand naira only) being the amount of the goods i.e. dry pepper taken by the defendants from the plaintiff arising from a mutually agreed contract.
The said sum of N220,000 (Two hundred and twenty thousand naira) has fallen due but the defendants failed, neglected and or refused to pay as agreed by the defendants.
WHEREOF the plaintiff claims against the defendant the said sum of N220,000 with interest at 10% per annum from 10th day of May 1993 until judgment is delivered.”
The 1st respondent who was plaintiff in the court below filed a statement of claim in which he mixed up the names of the defendants and made the 1st defendant in the writ of summons the 2nd defendant, and the 2nd defendant as the 1st defendant. He subsequently brought a motion to correct the mistake so that the parties should be as in the writ of summons. The motion was not opposed but at page 32 of the record of appeal the trial court inadvertently failed to give its ruling on it. It merely adjourned the matter without ruling on the motion before it. It was obvious however that the parties before the trial court stood as per the writ of summons.
The appellant filed a notice of preliminary objection to the case on the ground that he was not a proper party to be sued in the action and that there was no cause of action disclosed against him. There was no counter affidavit to his motion. The motion was argued before the trial court and in its ruling the learned trial judge dismissed the motion on the ground that there was a mix up in the names of the parties but failed to rule on the appellant’s grounds for the preliminary objection.
Dissatisfied with this ruling the appellant with leave of court granted on the 14th of January 1997 appealed to this Court on three grounds of appeal. In accordance with the rules of court, the appellant filed a brief of argument and identified two Issues for determination as follows:-
“1. Whether the learned trial judge considered either in full or at all the grounds of objection of the 2nd defendant
- Whether the trial judge raising suo motu issues of alteration of position of parties on the statement of claim without hearing the parties had occasioned any miscarriage of justice.”
The 1st respondent filed a brief of argument with leave of court and in the brief he identified only one issue for determination as follows:-
“Whether or not the learned trial judge considered – the issues raised in the appellant’s Notice of preliminary objection.”
In the brief there was a preliminary objection to the competence of the appeal on the ground that the ruling of the lower court was an interlocutory decision which can only be appealed against with the leave of the lower court or this court and that the appellant appealed without leave. The preliminary objection has been overtaken by events. Originally the appellant appealed without leave but subsequently he sought leave to regularize his appeal and that leave was granted on the 14th of January 1997. Consequently the preliminary objection is hereby stuck out.
The appellant also filed a reply-brief which I find quite unnecessary as it does not advance his case in anyway.
The main argument of the appellant under the first issue is that having regard to the statement of claim, the action was based on contract between the 1st respondent and the 2nd respondent to which he was not privy, he was therefore not a proper party to the case and there was no cause of action disclosed against him. The trial court was therefore wrong in dismissing the preliminary objection without considering the substance of the objection. He referred to the case of Re Mogaji (1986) 1 NWLR (Pt. 19) 759.
On the 2nd Issue it was the contention of the learned counsel for the appellant that the trial judge was in error when he considered suo motu the issue of the alteration of the positions of the parties as reflected on the statement of claim and used that as a basis for dismissing the appellant’s preliminary objection without affording the parties the opportunity to address him on that issue. In reply the learned counsel for the 1st respondent submitted that the trial court was right in the exercise of its discretion in over-ruling the preliminary objection. He argued that the failure on the part of the trial judge to consider the various heads of objection is not uncommon in law. In his submission the principle of law is that if a consideration of a point can dispose the entire suit or objection, there is no compulsive reason to decide on the ancillary ones.
It is a well-known principle of law that an issue properly raised and canvassed before a trial court must be given a fair hearing and consideration. It must be examined critically in order to avoid miscarriage of justice. See the case of Ugbodume v. Abiegbe (1991) 8 NWLR (Pt. 209) 261 and Bala v. Bankole (1986) 3 NWLR (Pt. 27) 141.
The main complaint of the 1st respondent before the trial court in his writ of summons and the statement of claim was based on contract between him and the 1st defendant before the lower court. According to his claim he gave some pepper to the 1st defendant Taiye Yusuf to sell and give him the money. Taiye Yusuf in turn gave the same pepper to the present appellant to sell. Something went wrong and the money for the sale did not reach the 1st respondent. That was what led the 1st respondent to go to court Paragraphs 3-11 of the statement of claim bear this out and they are reproduced hereunder. They can be found at p. 7 of the record of appeal;-
‘3. The plaintiff engages in speculative purchase and sale of goods. To manifest this thought, he bought for keeps certain numbers of dry pepper.
- When the time for sale was ripe, the plaintiff contacted the first defendant on the 10th day of May 1993 to assist in the sale and or distribution for sale of 104 bags of the dry pepper worth the sum of N220,000.00.
- The first defendant accepted them and informed the plaintiff that she will take them to Bela Market in Sakata State for sale.
- That after having collected the numerous bags from the plaintiff the first defendant entrusted them to the second defendant with whom she had always done business with to take to Bela Market for sale.
- The mutual agreement with the plaintiff and the first defendant is that the proceeds of the sale shall be delivered not later than two weeks after collection.
- For reasons best known to the first defendant she entrusted the goods to the custody of the second defendant who proceeded to Ilela alone.
- Having waited for more than two weeks when the second defendant did not return, the first defendant went several times to the house of the second defendant to find out the reason for her running behind schedule.
- After three weeks of waiting the first defendant reported the matter to the Nigeria Police Force where she made a statement which is hereby pleaded.
- Invariably when the second defendant returned she told first defendant that she was robbed and started behaving abnormally.”
In determining whether or not a party has been properly joined in an action or there is a cause of action against a particular party, the law is that you must examine only the writ of summons and the statement of claim of the plaintiff. If there is nothing to connect a party to the suit, such a person is not proper party. See the following cases:-Joseph Ayanboye & Ors. v. Balogun (1990) 9 SCNJ 93; (1990) 5 NWLR (Pt 151) 392, Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669. From the facts of this case, particularly the statement of claim, it is clear that there was no privity of contract between the 1st respondent who was plaintiff in the court below and the appellant who was 2nd defendant in the court below. If anything the pepper that gave rise to this action was given to the appellant by the 1st defendant to sell and the 1st defendant is the only person who could competently sue him in that regard. I am firmly of the view therefore that if the trial Judge had properly considered the preliminary objection he would have granted it, and his failure to do so led to a miscarriage of justice.
On the 2nd issue the contention of the learned counsel for the appellant is that the trial court ought not to have suo motu raised the issue of the alteration of the position of the parties to overrule the preliminary objection without giving the parties an opportunity to address it on that issue. The law is that when a court raised a point suo motu it must afford the parties an opportunity to address it on that issue especially the party that may suffer punishment as a result. See Odubeko v. Fowler and Anor (1993) 9 SCNJ 185; (1993) 7 NWLR (Pt.308) 637; Ajao v. Ashiru (1973) 11 S.C. 23. The trial Court was in grave error in failing to consider the substance of the preliminary objection and dismissing the same on an issue that was raised suo motu without giving the parties an opportunity to be heard thereon. Consequently this is an appeal that must succeed. Accordingly I allow the appeal and set aside the ruling of the trial judge. In its place it is ordered that the appellant’s preliminary objection before the trial court that he was not a proper party to the suit and that the suit so disclosed no cause of action against him, is upheld and the case against him is accordingly struck out. The appellant is entitled to costs of N2,000 against the 1st respondent only.
Other Citations: (1997)LCN/0346(CA)
