Bohsali And Co. Ltd V Okoi Arikpo (1966)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

This is an appeal by the plaintiff from Adefarasin, J., sitting in the Lagos High Court in which he struck out the plaintiffs claim in suit No. LD 32/64 on 22nd July, 1964 but made no order as to costs. The plaintiff in the action had claimed £600 being the balance of an amount due to the plaintiff from the defendant for arrears of rent at 45 Ereko Street, Lagos. The plaintiff called one witness to establish his claim but the defendant chose not to call evidence. The learned trial judge in his judgment said:  “Learned counsel for the defendant contended that the defendant as a partner in the firm of Arthur Prest & Co. was jointly liable with other partners. With that view I fully agree but are the plaintiffs entitled to sue him independently of the partnership?

The general principle seems to be that any two or more persons claiming or being liable as co-partners and carrying on business within the jurisdiction may sue or be sued in the name of the respective firm. (See Annual Practice 1962 Vol. II p. 115 1., see also Bullen & Leake’s Precedents of Pleadings, l 1th edition p. 29. See also Halsbury’s Laws of England Vol. 28, paragraph 1005 at pages 519 and 520.) The plaintiffs have proceeded on the footing that the defendant because he was one of the partners in the firm of Arthur Prest & Co. was solely liable to the plaintiffs. I think this is wrong. I think the action of the plaintiffs should have been brought in the name of the firm or alternately in the name of the partners with a description that they carried on business in the firm of Arthur Prest & Co.”

The record does not disclose the arguments of counsel and the cases, if any, they cited in respect of that portion of the judgment.

It is always desirable for counsel to cite authorities to assist the court, and if the learned judge makes a brief note of the arguments and authorities, it is of assistance to the appellant in drafting his grounds of appeal and to this Court in understanding the legal points raised before the trial court. The plaintiff in his grounds of appeal has complained that the learned trial judge erred in law in holding that in the law of partnership one is bound to sue all the partners. Mr Akinyele for the plaintiff relied on Order 4, rule 4 of the Supreme Court (Civil Procedure) Rules but as that dealt with where a person has a joint and several demand against more persons than one we do not consider it applicable here as this is not a joint and several demand (See Kendall v. Hamilton (1879) 4 App. Cas. 504). The defendant’s counsel claimed that Order 4, rule 6 of these Rules applies and that the proper procedure was for the plaintiff to sue the partners in the name of the firm, further contending that Bullen & Leake’s Precedents of Pleadings IIth edition p. 29 supports this submission, but in our judgment this rule does not make this a requirement but is an enabling provision and Bullen & Leake as cited does not say partners must be sued in the name of the firm. The learned trial judge in support of his decision cited Halsbury’s Laws of England Third Edition Vol. 28 paragraph 1005 on pages 519 and 520 which deals with the same point, but he did not advert to paragraph 1008 at page 523 which we note states:-

“Action against individual partners. The foregoing procedure is optional, and a plaintiff may, if he thinks fit, sue all the partners whom he seeks to make liable individually; but in such a case they must all be made defendants. If he sues some only of the partners, the defendants can insist on the other partners being made parties if they are within the jurisdiction and can be found.

Mr Braithwaite for the defendant endeavoured to argue that this paragraph 1008 only applied when the partners are within the jurisdiction but in our view the position in respect of jurisdiction in this context is that if one person jointly liable with another is sued alone he has the right to ask the court to join the other partner but if the other partner is outside the jurisdiction then the court in its discretion need not order the other partner to be joined, but if the other partner is within the jurisdiction then joinder will normally be ordered. Lord Esher, M.R. in Wilson, Sons & Co. Ltd. v. Balcarres Brook Steamship Company Ltd. [189311 Q.B. 422 at 427 said:-

“Therefore, where there are two joint contractors, both resident within the jurisdiction. I think that prima facie, if one of them is sued on the joint contract, he would have a right to have the other made a co-defendant. Order 16, r.ll, so far as its terms are concerned, gives a discretion. It is not necessary to say that, even where all the joint contractors are within the jurisdiction, there might not be circumstances under which the court could refuse to insist on their all being joined as defendants. It is not necessary to decide that point in this case. I doubt whether in extreme cases the court would be bound, even in that case, to order the joinder of a joint contractor; but, as a general rule, T should say the court would be bound to do so”

and again in Robinson v. Geisel and Others [1894] 2 Q.B. 685 at 687 Lord Esher M.R. said:-

“The state of the law seems to me to be this: if the co-contractors are within the jurisdiction and can be found, they ought to be joined, not because it is obligatory on the plaintiff to join them, but because, if there is no reason to the contrary, all the co-contractors ought to be joined as defendants.” (Our underlining).

The essential point, however, is that there is no requirement to sue all the partners, but if the plaintiff sues one or more but not all and obtains judgment then he cannot subsequently proceed against the others (See Kendall v. Hamilton (1879) 4 App. Cas. 504).

In our judgment therefore the plaintiff was not bound to sue all the partners but could sue one partner. Moreover in this appeal one reason for doing so may well have been because we note from the letter the defendant wrote on the June, 1963 at page 4 of the record that he stated:-

“I enclose herewith a cheque for £100 in part payment of the arrears of rent due from Arthur Prest & Co. to you in respect of 45 Ereko Street, for the period 1st August, 1961 to 31st July, 1962 at the rate of £350 per annum. I undertake to pay the balance of £600 by monthly instalments from the end of June.” (Our underlining).

In any case in our view it was quite wrong of the learned trial judge to allow this action to be defeated solely because he thought that all the partners ought to have been sued. Order 15 rule 6 (the former Order 16 rule 11) of the English Rules of the Supreme Court in the White Book for 1966 makes this clear and this Court in M. O. Onayemi v. Olatunji Okunubi and Another), S.C. 477/64 [decided on 9th December, 1965] has said:-

“It is clear from the notes under Order 16, rl l, of the English Rules Of the Supreme Court in the White Book for 1963 (‘Application of Rule-Misjoinder, Nonjoinder’, at p. 346) that nonjoinder cannot defeat a claim. It rests rather with the defendant to raise, as early as possible, the point that not all interested persons are before the court, so that the court may direct the plaintiff to give them notice and have everybody concerned as a party at the trial: See Sheehan v. Great Eastern Railway Co. (1880) 16 Ch. D.S9, at p. 64.”

The appeal is therefore allowed with 45 guineas costs in this Court and judgment is entered for £600 for the plaintiff with 45 guineas costs in the High Court.

Other Citation: (1966) LCN/1321(SC)