Anthony Ehidimhen Vs Ahmadu Musa & Anor (2000)
LAWGLOBAL HUB Lead Judgment Report
A. KALGO, J.S.C.
This action was commenced in the High Court of Borno State. The writ of summons together with the statement of claim was served on the defendants now respondents after obtaining leave of the trial court for service on the 2nd respondent who was out of the jurisdiction of that court. In the writ, plaintiff, now appellant claimed for:-
“A declaration that the defendants are jointly and severally liable to the plaintiff for all the damages suffered by the plaintiff as a result of an accident involving the plaintiff’s Peugeot Saloon Car with registration No. BD 8118 JA and the second defendant’s MAN DIESEL Lorry with registration No. PL 218 J, driven by the first defendant for and on behalf of the second defendant which said accident occurred on the 14th of December 1987 near Lamanti Village in the Konduga Local Government of Borno State along the Biu-Maiduguri Federal Highway as a result of which the plaintiff’s car and the goods being carried therein were completely destroyed”.
The claim was particularised in paragraph 17 of the statement of claim as follows:-
“(a) N61,000.00 (sixty one thousand naira) being the pre-accident value of the plaintiff’s peugeot 505 SR Saloon car with registration No. BD 8118 JA;
“(b) As special damages the sum of N1,314,600, (one million, three hundred and fourteen thousand, six hundred naira) being the value of one Haemodialysis machine, one sonicaid ultra sound machine, one passport, Children’s clothes and drugs completely destroyed by fire as a result of the accident;
(c) Interest at the court rate of 10% per annum on the above total sum of N1,375,600.00 (one million, three hundred and seventy-five thousand, six hundred naira) with effect from the date of judgment until liquidation.”
The defendants (hereinafter referred to as the respondents) filed a joint Statement of Defence denying any liability. In particular they denied the ownership of the man diesel lorry which was involved in the accident with the appellant’s car or that G.B.O. Ollivant (Nigeria) Limited or G.B.O. is part of U.A.C. of Nigeria Limited. The appellant also filed a reply to that defence.
The trial of the action was commenced on the 20th of February, 1990, in the course of which each side called 4 witnesses, at the end of which learned counsel for the parties addressed the court at length before the court adjourned for judgment. On the 9th of August 1991, the learned trial Judge Ogunbiyi J., delivered a considered judgment in which she found that the appellant had proved his case against the respondents and she proceeded to order that the respondents were jointly and severally liable to the appellant as per paragraph 17 of the appellant’s statement of claim set out earlier in this judgment.
The respondents were not happy with his judgment and by notice of appeal containing 12 grounds of appeal, they appealed to the Court of Appeal, Jos. There, the parties filed and exchanged their written briefs. The appeal was then heard and in a reserved judgment delivered on the 26th January, 1994, by Muhammad JCA and concurred by Orah and Okezie JJCA, the Court of Appeal held that United Africa Co. of Nigeria Limited was not a proper party to these proceedings and went ahead per Muhammad JCA to order as follows:-
“In the circumstances, the appeal succeeds. The 2nd appellant is struck out. The judgment of the lower court is set aside. The case is remitted to the lower court for rehearing. The parties are at liberty to amend their pleadings – if they so wish”.
Dissatisfied with this judgment, the appellant now appealed to this court on ten grounds of appeal.
In this court, the parties filed their respective briefs as required by the rules and exchanged them between themselves. In their joint brief, the appellants formulated 3 issues for the determination of this court which are:-
“(1) Whether the Court of Appeal was correct in setting aside the decision of the trial court refusing to grant the defendants leave to amend their statement of defence at the close of the plaintiff’s case
(2) Is “G.B. Ollivant (Nig.) Ltd” one and the same as “G.B. Ollivant a Division of U.A.C Nig. Ltd”
(3) Is U.A.C. Nig. Ltd a proper party in this suit and vicariously liable for the act of the first Defendant
For the respondent, the following issues were also set out in the brief:-
“(1) Whether the Court of Appeal was right in its conclusion that the amendment of the pleading sought by the respondents in the trial court ought to have been allowed
(ii) Whether the Court of Appeal was right in its conclusion that the inscription G.B. Ollivant a Division of U.A.C. Nig. Limited as shown on exhibits F and G1 at the trial ought to have been read in the light of the oral evidence at the trial and the contents of Exhibits L and M
(iii) Whether the doctrine of estoppel would apply to bind U.A.C of Nigeria limited having regard to the admissions made in Exhibits F, G and G1 on behalf of G. B. Ollivant a Division of U.A.C. Nigeria Limited”
I have carefully examined the issues raised by both parties to this appeal in relation to the grounds of appeal filed by the appellant, and have come to the conclusion that the appellant’s issues are more germane for the determination of this appeal. I adopt them for this purpose.
I will take issues (2) and (3) together. These two issues encompassed the argument of the appellant that the phrase “G.B. Ollivant a Division of U.A.C. (Nig) Limited” made U.A.C. Nig. Limited, the second respondent, a proper party to this action.
On page 5 of the record, the appellant pleaded in his statement of claim, paragraph 2 inter alia that:-
“……………. the second defendant on the other hand is United Africa Company of Nigeria Limited otherwise known as U.A.C. of (Nigeria) Limited; a limited liability company incorporated in Nigeria engaged in commerce and industry operating all over Nigeria through its various divisions such as A. J. Seward, and G.B.Ollivant (otherwise known as G.B.O.). The second defendant’s office within jurisdiction is situated at No. 3 Kirikasama Road, Maiduguri”.
And in paragraph 3 of the Statement of Defence, the respondents pleaded on page 25 of the record thus:-
“The Defendants deny paragraph 2 of the statement of claim and aver that United Africa Company of Nigeria Limited is a separate entity and has nothing to do with A.J. Seward and G.B.O. as these are not part of U.A.C. of Nigeria Limited. The Defendants aver that it has no branch office in Maiduguri. In further reply to paragraph 2 of the statement of claim, the defendants aver that G. B. Ollivant does not exist since its voluntary winding up and published in Official Gazette No. 34 Vol. 6 of 27th June 1974 and does not legally exist in its corporate personality and by reasons of which G.B.O. cannot be sued or sue except through the liquidator appointed to run its affairs. The second defendant avers that the first defendant is not known to second defendant nor is he an agent to the second defendant at any time material to this action”.
At the trial both parties called evidence in line with their pleadings. The appellant himself testified that he went to the premises of the second respondent at No. 3, Kirikasama Road, Maidugri where he collected reply of a letter his counsel wrote earlier to the branch manager of the respondent. The reply was admitted in evidence without any objection, as Exhibit ‘F’ and D.W. 3, A. L. Wudil, who was the branch manager at the material time, confirmed in his evidence that he wrote and signed Exhibit ‘F’. Exhibits G and G1 were the negative and the photograph respectively of the said branch office. The respondents’ witnesses DW 1 and DW 3 also testified to the effect that they did not know the second defendant and that it did not employ them. They said that they were working for G.B.Ollivant. DW.3 confirmed writing Exhibit ‘F’ as the branch manager of G.B.O. but did not know the relationship between the second defendant and G.B.Ollivant. He also confirmed that the man diesel lorry which was involved in the accident belong to his employers, G.B.Ollivant.
Pursuant to the provisions of section 73 of the Evidence Act, a Federal Gazette notice of the voluntary winding up of G.B. Ollivant (Nigeria) Limited was admitted in evidence as Exhibit ‘L’ with the consent of the parties. According to the respondents, the company called G.B. Ollivant (Nigeria) Ltd did not exist in its corporate name but it could sue or be sued through its liquidator. There was evidence that one Mr. Pinder was appointed the liquidator of the said company as per Exhibit ‘L’.
The argument of the learned counsel for the appellant in his brief is that Exhibit ‘F’ is a clear admission by the respondents through D.W. 3 that the vehicle involved in the accident and the goods therein at the time of the accident belonged to the second respondent. He further argued that G.B. Ollivant where the goods were being carried to and which employed the 1st respondent was only a “division” of the second respondent.
Exhibit ‘F’ reads as follows:-
G B OLLIVANT
DIVISION OF UAC OF NIGERIA LIMITED
Divisional Headquarters
182-184 Broad Street P.O. Box 144 Lagos
Telephone 664466
The Branch Manager’s Office,
P. O. Box 12,
Maiduguri, Tel: 232121
DM.38/56/88 4th November, 1988.
Ngilari & Co.,
Solicitors & Advocates,
91, Bukar Kolo Street,
Off Sir Kashim Ibrahim Road,
Maiduguri.
Dear Sir,
RE – MOTOR ACCIDENT ALONG DAMBOA – MAIDUGURI ROAD INVOLVING OUR COMPANY’S MAN DIESEL LORRY WITH REGISTRATION NUMBER PL 218 J DRIVEN BY AHMADU MUSA
Your letter C/11/9/88 of 4th October, 1988 delivered by hand on 4th November, 1988 refers:
By writing this letter, I am confirming to you that the vehicle involved in the accident together with the goods carried therein belong to our Company and the said ALHAJI AHMADU MUSA was at the time of the accident carrying the goods to our Maiduguri Branch.
Yours faithfully,
for: G. B., Ollivant
Division of UAC of Nig. Ltd.
(SGD)
A.L. WUDIL
BRANCH MANAGER
CC: North East Area Manager-GBO-Jos.
In his evidence in Chief, D.W. 3 who was the maker of Exhibit ‘F’ had this to say:-
“I do not know the relationship between the 2nd defendant i.e. U.A.C. Nigeria Limited and G.B. Ollivant. On the 24th of June 1974 the G.B. Ollivant Company was wound up. Mr. L.M. Pinder controls the management of G. B.
Ollivant. The vehicle involved in the accident in this matter Registration No. Pl 218 J belongs to G. B. Ollivant”.
In his cross -examination, he said:-
“On the 4th November, 1988, I could remember writing a letter to the plaintiff’s solicitors in my official capacity which I gave the plaintiff. Exhibit ‘F’ is the letter which I wrote. At the top of Exhibit F is written G. B. Ollivant a Division of U.A.C Nigeria Limited. I do not agree that Exhibit F at the time it was written showed any relationship between G. B. Ollivant and U.A.C. Nigeria Limited”.
D.W. 1 who is the 1st defendant /respondent also testified thus:-
“I started driving in 1966 with G.B.O. Jos. I know the plaintiff in this case. I also would like to state that I do not know the 2nd defendant U.A.C. of Nigeria Limited. I started driving G. B. O. since 1966 but as of now I have left them and I am working with D. M. Pinder in Jos. In 1974 sometimes in June I was in Jos. Around this time the G.B.O. Stopped working. In other words, they wound up the company. At that time one luketador (sic) took over the company. As at now my employer is D.M. Pinder”.
(Underlining mine)
Let me now look at Exhibit ‘L’. It states:-
“Public Notice No. 93.
Company Decree 1968.
G.B. OLLIVANT (NIGERIA) LIMITED
MEMBERS VOLUNTARY WINDING UP. NOTICE OF APPOINTMENT OF LIQUIDATOR
Pursuant to Section 285
Name of Company – G.B. Ollivant
(NIGERIA) LIMITED
Nature of business – Manufacturing Trading and General Merchandising, address of Registered Office – NIGER HOUSE, 1/5 Odunlami Street, Lagos.
Liquidator’s Name and Address-David Maurice Pinder, Niger House 1/5 Odunlami Street, Lagos.
Date of Appointment – 27th May 1974. By whom appointed – members in general meeting.
D.M. Pinder
Liquidator”.
From the contents of Exhibit ‘F’ copied above, it is very clear that D.W 3 who wrote it was the branch manager of G.B. Ollivant at the material time and that the vehicle which was involved in the accident and the goods in it, belonged to G. B.Ollivant. It was also clear from the evidence of D.W. 1 that he was at the material time an employee of one Mr. Pinder and not G. B. Ollivant. It is also abundantly clear that both DW 1 and DW 3 did not know the 2nd respondent and that the latter had no relationship with G. B. Ollivant at the time. Since all these have been clearly established, there is therefore no doubt in my mind that the premises, No 3 Kirikasama Road, mentioned in Exhibit ‘F’ could not possibly be a divisional office of the 2nd respondent. Exhibit ‘L’ the public notice No. 93 in the Federal Gazette, has clearly and undoubtedly established that the company called G.B. Ollivant (Nigeria) Limited commenced voluntary winding up since June 1974 and that one Mr. Pinder was its liquidator. It is certainly different from G.B. Ollivant, a division of U.A.C (Nigeria) Limited mentioned in Exhibnit ‘F’ because G. B.Ollivant as a division, simpliciter, is not an incorporated company in law and in fact. And according to Exhibit ‘L’ the address of the registered office of the G.B.Ollivant (Nigeria) Limited is Niger House, 1/5 Odunlami Street, Lagos, whereas the address of the Divisional Headquarters of “G.B. Ollivant a Division of U.A.C of Nigeria Limited” mentioned in Exhibit ‘F’ is 182 – 184 Broad Street, Lagos. The addresses are clearly different and for different associations or bodies.
In my respectful view, Exhibit ‘L’ has proved or established conclusively that G. B. Ollivant (Nigeria) Limited is an incorporated Company with a legal personality, status and capacity to sue and be sued. Salomon v. Salomon (1897) AC 22. Therefore, it has no connection or relationships with “G.B.Ollivant a Division of U.A.C. (Nigeria) Limited” which to me is described as a division of another incorporated company (U.A.C. Nigeria Limited). In this respect, I will agree with the submission of the learned counsel for the appellant in his brief, that the Court of Appeal was wrong to say that G.B.Ollivant (Nigeria) Limited is one and the same as the G.B. Ollivant Division of U.A.C. (Nig.) Ltd”. But this is not the end of the matter. The most important issue here is to determine whether the said division of U.A.C. (Nig.) Limited has any relationship with or actually belonged to the 2nd respondent. It must also be clearly proved that the vehicle (Man Diesel Lorry) involved in the accident actually belonged to the 2nd respondent and that D.W.1. its driver at the time, was an employee of the 2nd respondent. It should not be left to the learned trial Judge to conclude by some logical deductions that “the whole” includes “a division”. Learned trial Judge on page 32 of the record said:-
“In other words, G.B.O is a part of U.A.C. which is the whole; consequently therefore, a part or a division cannot be a company on its own and cannot therefore exist on its own as an entity. In the case of Fawehinmi V N.B.A. supra, the position of the law is that only person (sic) who are of legal existence can sue or be sued. It follows from the said authority that G.B.O in the matter at hand being a branch has no legal status………..”
By this finding, the learned trial judge found that the 2nd respondent was a proper party to this action. With respect to her, I think she was wrong in so finding because even though Exhibit ‘F’ was not denied by Dw 3, who agreed that DW. I was their staff carrying goods to them in Maiduguri, both DW. 1 and DW. 3 in their testimonies denied knowing the 2nd respondent or having any relationship with it. How can that relationship or knowledge be automatically presumed against the 2nd respondent The learned trial judge did this using the principle of estoppel.
On page 133 of the record, the learned trial Judge said:-
“With the existence of Exhibit F, G and G1, whereby the 2nd defendants are held out as the main company to which G.B.O. is a division, they are estopped from denying that the 1st defendant is neither their employee nor is the vehicle their own and also that the G.B.O. is their division”.
(Underlining mine)
By this, the learned trial judge is holding the contents of Exhibit ‘F’ as issue estoppel against the 2nd respondent. She held that by Exhibit ‘F’ the 2nd respondent could not deny that G.B.O. is not their division nor that the DW.1 is not their employee or that the Man Diesel Lorry involved in the accident is not their vehicle. She relied on Sections 19, 20 (1) and 151 of the Evidence Act. Sections 19 and 20 of the Act, deal with admissions as a relevant fact, but according to Section 26 of the same Act they “are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions of part VIII of this Act”. This means that evidence may be called to rebut any such admissions but they may in some cases constitute estoppel. What then is an estoppel
In the case of Ukaegbu V Ugoji (1991) 6 NWLR (pt. 196) 127 at 143-144, this court defined estoppel as:-
“…..an admission, or something which the law views as equivalent to an admission. By its very nature, it is so important, so conclusive, that the party whom it affects is not allowed to plead against it, or adduce evidence to contradict it …………….. Estoppel prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party who relying upon them has altered position”.
(Underlining mine)
Section 151 of the Evidence Act contained in part VIII of the said Act also provides:-
“When one person has, by his declaration, act or omission, intentionally caused or permitted a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing”.
(Underlining mine)
It is pertinent to observe that in the meaning of estoppel expatiated by this court in the Ugoji case quoted above, and in Section 151 of the Evidence Act, before estoppel applies, there must be some previous act, declaration, act or omission intentionally made by a person which caused or permitted another person to believe to be true and upon which the latter acted to his detriment. In that case, and in that case only, can the principle of estoppel apply and the person who made the said act, declaration or omission cannot be allowed to deny such act, declaration or omission. See Osinrinde V Ajamogun (1992) 6 NWLR (pt. 246) 156.
In the instant appeal, there is nothing to show that Exhibit ‘F’ which was solely relied upon to found estoppel, was infact made previous to the happening of the accident upon which this action arose. In other words, the 2nd respondent did not expressly or by any conduct inform the appellant or his representative at any time before the happening of the said accident that “G.B. Ollivant, a division of U.A.C. (Nig.) Ltd” whose address is at 3 Kirikasama Road, Maiduguri is a division of the 2nd respondent. Exhibit ‘F’ was only made as a result of a letter written by the appellant’s counsel after the accident giving rise to this action. It appears to me therefore, and I find accordingly, that Exhibit ‘F’ cannot work as an estoppel against the 2nd respondent and that Sections 19, 20 (1) and 151 of the Evidence Act are not relevant thereto.
I also agree entirely with the finding of the Court of Appeal per Muhammed JCA at page 215 of the record that:-
“Exhibit F in which DW 3 confirmed that ‘the vehicle involved in the accident together with the goods being carried therein belong to our company and the said Alhaji Ahmadu Musa was at the time of the accident carrying the goods to our Maiduguri Branch’could only mean that the vehicle and the goods carried therein belonged to G.B.O. and that Alhaji Ahmadu Musa was carrying goods to G.B.O.’s Maiduguri Branch. It cannot mean that the vehicle belong to U.A.C. nor that Alhaji Ahmadu Musa was a staff of U.A.C.”
This finding was fully supported by the testimonies of DW.1 and DW.3 which I quoted earlier in this judgment and I do not consider it necessary to repeat them here. But the substance of what they said was that neither of them knew U.A.C. (Nig) Ltd or had any relationships with it and they are not under its employment. D.W.1 said that he was, at the material time employed by one Mr. Pinder. DW.3 also testified that he was at that time, an employee of G.B. Ollivant, which gave him a letter of employment which was in his possession, and that the vehicle Man Diesel Lorry has its registration particulars in the possession of his employers. The appellant did not call any evidence, apart from relying on Exhibit ‘F’ to connect the 2nd respondent with G. B. Ollivant or DW. 1 and DW. 3 nor did he call Mr. Pinder the Liquidator of G.B. Ollivant (Nig.) Ltd to give any evidence. He even failed to produce the letters of employment of DW. 1 and Dw.3 to confirm who employed them. He also failed to produce in evidence the registration particulars of the Man Diesel Lorry Registration No. PL 218 J which was involved in the accident with his vehicle. If he had produced these pieces of evidence, the position of the 2nd respondent in connection with DW.1 and the vehicle PL 218 J would have been clear and would be easier to determine whether it was a proper party to this action.
Having found that Exhibit ‘F’ did not operate as estoppel to the 2nd respondent in this action and that there was no evidence to connect it with DW.1, D.W.3, and the vehicle No. PL 218 J, I have no hesitation in concluding that the 2nd respondent was not a proper party to this action. I agree with the conclusion of the Court of Appeal on this and answer issues (2) and (3) in the negative.
The appellant’s claim against the 1st and 2nd respondent was joint and several. The learned trial Judge gave judgment against the respondents jointly and severally having found that the 1st respondent was negligent and the 2nd respondent was vicariously liable. Now that the 2nd respondent by this judgment is not a proper party to the action, its name must be struck out leaving only the 1st respondent. The judgment of the learned trial judge cannot now stand against the 1st respondent alone. It is accordingly set aside. In the circumstance I do not think that any useful purpose will be achieved in considering issue I which deals with the amendment of pleadings. I will not consider it as it is a useless exercise in view of my earlier findings on issues (2) and (3).
Finally and for the reasons set out above, I find that there is no merit in this appeal. I dismiss it with N10,000.00 costs in favour of the respondents and make the following orders:-
(1) The name of the 2nd respondent be and is hereby struck out as a party to the action;
(2) Decision of the Court of Appeal is affirmed and case is remitted to the Borno State High Court for rehearing by another judge;
(3) The parties shall be at liberty to amend their pleadings if they so wish.
SC.79/1994
