Adama Dipcharima & Anor V. Alhaji Umar Ali & Anor (1974)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C.

This appeal is against the judgments of Hague Ag. J., in Suit No. NEM/15/71 delivered respectively on 11/6/73 and 20/11/73. On 10/12/73 the learned trial Judge also awarded cost of N1,420 to the respondents.

The claims of the plaintiffs, who are now the appellants before us, are set out in paragraph 10 of the Statement of Claim which reads:-

“10. It will be the Plaintiffs case that no meetings of Directors or shareholders of the 2nd Defendant Company have been summoned or held to their knowledge since the death of the late Zanna Bukar Dipcharima aforesaid.

In consequence of the foregoing the Plaintiffs have suffered loss and damage and claim from the defendants jointly and severally:-

(1) A declaration that the 1st Defendant has no proprietary in the second defendant company not being a shareholder in the said company.’

On this first claim the learned trial Judge held as follows:-

“Among other things the Plaintiffs ask for a declaration that the 1st defendant has no proprietary interest in the 2nd defendant company. Manifestly he has not as the documents filed in the action do not show him as the owner of any share.”

On this finding one would have expected the learned trial Judge to enter judgment for the plaintiffs. The learned trial Judge had in an earlier portion of the judgment rejected Exhibit O which purported to be the minutes of a meeting purporting to have been held in 1965 whereby the 1st defendant was appointed a Managing Director.

This was quite rightly rejected because an abortive attempt was made in 1969, six years later and after the death of Zanna Dipcharima and his mother, to file particulars to reflect the purported appointment of the 1st defendant as Managing Director. For some reasons, which did not appear on the record, the learned trial Judge contradicted himself by saying that 1st defendant could have been validly appointed a director, and by some further strange reasonings held that the plaintiffs had acquiesced in such appointment by not objecting to the company’s 2nd defendant’s headed note-paper in which the name of 1st defendant was shown.

If the learned trial Judge had realised that he was trying the case on issues joined by the parties in their pleadings, he might not have embarked on a fruitless endeavour of considering matters not raised in the pleadings. After all, trials based on pleadings filed by parties, are prosecuted on the lines of issues raised and joined by the parties. The judgment of such a court must, we wish to emphasise, turn on such issues as had been joined. The question of the law applicable must necessarily be based on the findings made.

It is very tempting for a trial Judge, in his endeavour to do justice “to wander into areas not pleaded by the parties” and thereby open himself to a charge of either unintentional miscarriage of justice or purported leaning to one side, thereby leaving himself open to an allegation of impartiality. Although we do not believe that the learned trial Judge did these alleged acts deliberately, we nevertheless will be shirking our duties if we fail to point out that departures from settled practice and procedure could leave a court open to such charges.

We are, therefore, of the view that the learned trial Judge was wrong, both in law and on the facts, to have held that claim for declaration was not made out. We hold that the claim was made out and that judgment should have been entered in accordance with the relief sought.

The second head of claim in paragraph 10 of the Statement of Claim reads: