Laibru Limited V. Building & Civil Engineering Contractors (1962)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J

The appellant company complains that the learned Judge (Onyeama, J., on the 28th October, 1960, in the High Court of Lagos suit 60 of 1960), having found in favour of the claim on the merits, erred in dismissing it on the ground that there was no power to substitute Michael Ibru for the company as plaintiff.

Early in 1959, when trading as “Laibru,” Mr. Ibru sold goods to the defendants, for which they did not pay. In June, 1959, he and others formed the company known as Laibru Ltd., which took over his assets and liabilities, but he did not give the defendants notice of the assignment of his claim to the company. Thus the company had an equitable assignment of a legal chose in action. In such case, according to Halsbury’s Laws of England, 3rd edition, Vol.4, page 511-

The assignor ….  must be a party to the action either as plaintiff or defendant.

If the assignor does not bring the action himself, the assignee is entitled to do so in the name of the assignor, on giving him a proper indemnity against all costs and charges consequent on the use of his name; or on proving his failure or refusal to sue or to allow the use of his name, may make him a defendant, leave to amend being granted, if necessary.

The suit was brought in the company’s name. When Mr. Ibru was testifying as a witness for the company, the learned Judge observed that the company had no title If no notice of assignment had been given. Counsel for the company at first asked that Mr. Ibru be added as co-plaintiff, and later that he be substituted as plaintiff, and referred to Order 16, Rule 2, of the English Supreme Court Rules, and to section 12 of the Lagos High Court Ordinance in support of using that rule. Counsel for the defence objected that the local Order on Parties could not be supplemented from the English Rules. The learned Judge left it over to decide later; he went on with the trial, and eventually dismissed the claim only because he held that he could not substitute Mr. Ibru as the plaintiff.

In the notice of appeal the company complains that he erred in so holding, and asks that the substitution be allowed, and that judgment be entered for the amount; and there is a paragraph (3) which prays for-

Any further order or other orders as the Court may deem fit to make in the circumstances.-

The defendants did not give notice that they would support the judgment on any other ground.

Their learned Counsel concedes that if there is no provision to meet a situation, the English rules will apply. Section 12 of the Lagos High Court Ordinance provides that-

The jurisdiction vested in the High Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this or any other Ordinance, or by such rules and orders of court as may be made pursuant to this or any other Ordinance, and in the absence of any such provisions in substantial conformity with the practice and procedure for the time being of Her Majesty’s High Court of Justice in England.

The second clause ekes out the deficiencies of the old Supreme Court (Civil Procedure) Rules, which are still in force; and the deficiencies are twofold:-

(a) those rules are not as fully as they should be on the subjects with which the Orders deal;

(b) they contain no Orders on some other subjects.