Fasasi Adesina v. The Federal Public Trustee & Ors (1972)
LawGlobal-Hub Lead Judgment Report
C. O. MADARIKAN, J.S.C
The present respondents were the plaintiffs in an action instituted by them in the High Court of Lagos (Suit No. LD/494/68) against the appellant as defendant and in which their claims as endorsed on the writ were as follows:-
“The Plaintiffs claim from the defendant
- A full, true and up to date account of the business of Commercial and Industrial Transport Services as from 1st May, 1960.
- Dissolution of the said business and payment over to the plaintiffs of whatever is found due to the plaintiffs.”
It is convenient at this stage to point out that by an order of court dated the 11th of November, 1965, (Exhibit 1), the Federal Public Trustee was appointed to take over the administration of the estate of one M.R. Ojikutu, deceased (hereinafter referred to as the deceased), and it was in this capacity that the Federal Public Trustee as the 1st Plaintiff joined the other plaintiffs who are some of the children of deceased to commence this action.
Pleadings were ordered and duly delivered. In their Statement of Claim, the plaintiffs averred that on the 1st of May, 1960, the deceased and the defendant were awarded a conservancy contract by the Lagos Town Council (hereinafter referred to as the Council), for a period of one year; that at the expiration of the contract and indeed on the 1st of May, 1961, the deceased and the defendant trading as the Commercial and Industrial Transport Services were awarded another conservancy contract by the Council for the period 1961 to 1963, subject to renewal; that after the death of the deceased that contract was renewed on the 1st of May, 1963, for a further period of 5 years; and that the defendant has since been carrying on the business to the exclusion of the plaintiffs and without rendering an account to them despite repeated demands.
In reply, the defendant averred in his Statement of Defence that the deceased, the defendant and 5 others were partners in the Commercial and Industrial Transport Services; that in May, 1960, the Council awarded a conservancy contract to the company that on the 1st of May, 1961, the contract was renewed for a period of 2 years; and that on the death of the deceased on the 8th of September, 1962, the business was at a standstill because the administrator of the estate of the deceased told the bank to deny the company overdraft facilities; and as a result, the defendant maintained that the partnership became dissolved.
The Statement of Defence continued as follows:
“16. The defendant further avers that in 1963, under a business name of F. Adeshina & Sons, he won the conservancy contract of the Lagos City Council.
- That the Firm of the said F. Adeshina and Sons is distinct and is of a different composition from the said Commercial and Industrial Services.”
At the trial, evidence was led on behalf of the plaintiffs to prove that the 1960 contract was awarded to the deceased and the defendant trading as the Commercial and Industrial Transport Services, that the contract was renewed in 1961 for a period of 3 years expiring in 1963; that the company owned some vehicles and built 24 houses on a parcel of land allocated to it by the Council and that each house consisting of 12 rooms was let for 1.5/’97 per month per room to the labourers engaged by the company. It was also part of the plaintiff’s case that the company was making huge profits and that the defendant has refused to accede to the request of the plaintiffs for an account of the partnership business.
The brother of the deceased testified as the 1st witness for the defendant. He admitted receiving from the defendant a statement of account of the partnership business which he showed to the children of the deceased who in turn gave him another statement of account which he was unable to reconcile with the account received by him from the defendant. He also stated that he handed over all the estate papers in his possession to the children of the deceased when the Federal Public Trustee took over the administration of the estate.
The defendant himself was the next witness. He deposed that the 1960 conservancy contract was awarded to the company and that the partners in the company were the defendant, the deceased and others on behalf of whom he signed the contract; that in 1961 the contract was renewed for 2 years; that he obtained overdraft facilities to the tune of 5,000(pounds) from the African Continental Bank to enable him to run the business and that after the death of the deceased in 1962 the Federal Administrator-General instructed the bank to deny the company overdraft facilities. In consequence of this, he had to repay the overdraft of 12,320:12:11d (pounds)then owing by the company.
He also stated that the 1963 contract was awarded to F. Adeshina and Sons of which he was the sole proprietor. He further stated that when the Federal Public Trustee demanded a statement of account of the business from him, he furnished the Federal Public Trustee with a copy of Exhibit 3. Exhibit 3 was prepared by Messrs B. Finnih and Company, Accountants and Auditors, and it covers the period 23rd of February, 1960, to 9th of September 1962, that is, a day after the death of the deceased. The defendant was severely cross examined in an attempt to show background to the formation of the partnership.
In a reserved judgment, the learned trial Judge commented as follows:
“The first relief that is claimed on the endorsement on the writ is for an account of the business of the Commercial and Industrial Transport Services. In the Statement of Claim however the plaintiffs’ claim appear to be that the Lagos City Council awarded a conservancy contract to the deceased and the defendant, that these two individuals carried on business in the name and style of the Commercial and Industrial Transport Services, that the defendant had neglected to render an account of the business between the two to the personal representatives of the deceased and (paragraph 10 of the Statement of Claim) that the partnership between the defendant and the deceased still continues and has not been dissolved. It will be seen from this that the Statement of Claim makes out that the account sought by the Plaintiffs is in respect of the business between the defendant and the deceased and that the Commercial and Industrial Transport Services was only the name by which they carried out the conservancy business. In order to meet the justice of the case the Statement of Claim will be treated as having superceded the endorsement on the writ and I shall examine whether the defendant and the deceased had any conservancy business between them, to the exclusion of other person, in respect of which an account ought to be ordered.”
and after reviewing the evidence, he came to the conclusion
“(1) that there was a conservancy business between the deceased and the defendant on the one hand and the Lagos City Council on the other hand;
(2) that the conservancy contract was awarded to the deceased and the defendant;
(3) that the name of the firm, Commercial and Industrial Transport Services, appearing on the contract (Exhibit 5) was a camouflage; and
(4) that the business between the deceased and the defendant has some assets and liabilities an account of which ought to be given.”
He finally entered judgment for the plaintiffs by ordering an account in the following terms:
“I make order that the defendant shall within 90 days of this date file an account of the business between the defendant and the deceased from the period 1st May, 1960 to the 30th April, 1963.”
The defendant has now appealed against that decision. Before us on appeal, learned counsel for the appellant, Mr. Sofola, referred to a passage in the judgment where the learned trial Judge whilst reviewing the evidence posed the following questions:
“With regard to this, I must inquire into five things, namely:-
(i) whether the conservancy business was for all purposes awarded to the defendant and the deceased to the exclusion of other persons;
(ii) whether the contract was awarded to the Commercial and Industrial Transport Services and the partners in that firm from time to time in the period material to this action;
xxxxx”
Later in the judgment, he answered the questions as follows:
“I have come to the view that the registration of the Commercial and Industrial Transport Services with the names of partners other than the deceased and the defendant was a ruse. I answer question No. (i) above in the affirmative and hold that the contract in question was awarded to the defendant and the deceased and not as well to the other registered partners of the Commercial and Industrial Transport Services as posed in the question (ii).”
The crux of Mr. Sofola’s argument was that in view of the overwhelming evidence that apart from the deceased and the defendant, there were other partners in the company, the learned trial Judge was wrong in concluding that there were two partners in the company, that is, the deceased and the defendant.
We consider that Mr. Sofola’s argument is well founded. It was not disputed that the company was registered under the Registration of Business Names Act. Indeed, a copy of the application for registration was tendered in evidence as Exhibit 4. In Exhibit 4 which was dated the 23rd of February, 1960, the names of the partners in the firm were shown as follows:-
“1. Atiku Adamoh
- Sanusi Tanimowo Balogun
- Ramonu Obanibasiri Ahmed
- Fasasi Adeshina
- Mustafa Ojikutu
It is therefore clear beyond any dispute that on the 23rd of February, 1960, there were three other partners in the firm apart from the deceased and the defendant. We are in no doubt that the learned trial Judge would have accepted this evidence if he had not taken the view that “the whole business was crooked.” The criticism of the learned trial Judge was couched in rather strong language. He said:
“Counsel on both sides came to accept that the contract award was full of what they described as “wuruwuru” a word which by local parlance means “crooked business.” What I have heard in evidence convinces me that the whole business was crooked.”
We mean no disrespect when we say that, from the record of proceedings, we can find no justification for these strictures. We therefore cannot support the finding of the learned trial Judge as we feel that he ought to have accepted the evidence that apart from the deceased and the defendant, there were other partners in the Commercial and Industrial Transport Services.
It therefore follows that in effect only two out of the five partners in the company were before the court; one seeking as against the other an order for an account of the partnership and also for the dissolution of the partnership.
Mr. Sofola next argued that as all the parties were not before the court the suit was bad and incurable for want of parties.
The general rule is that, provided the number of partners are not great, in an action for an account of a partnership by one of the partners against some of the other partners, all the partners are necessary parties and ought to be joined as parties to the suit. (See Hill v. Nash (1845) 1 Ph. 594 reported in 41 ER 759). In the instant case, as all the partners were not before the court, we are in doubt no that failure to join the other partners rendered the suit incompetent on the ground that it was defective as to parties. For this reason, the action ought to have been dismissed.
In the result, this appeal succeeds and it is hereby allowed. The judgment of Adefarasin, J., in Suit No. LD/494/68 including the order for costs is hereby set aside. We accordingly order that the plaintiff’s claim be and is hereby dismissed. The defendant/appellant is entitled to costs which we fix at 40 guineas in the High Court and 64 guineas in this court.
SC.265/1969
