Mabel Ayankoya & Ors. V. E. Aina Olukoya & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

ADIO, J.S.C.

In the writ of summons which contained the claim in the action which the appellant instituted against the respondents in the Ibadan Judicial Division of the High Court of Oyo State, the appellants claim was as follows:-

“The plaintiffs claim against the Defendants jointly and severally is for the Recovery of various sums of money totalling Twenty-Four Thousand, Six Hundred and Twenty-Nine Naira (N24,629) being money paid by the plaintiffs to the Defendants at various dates in 1984 at Mrs. E. Aina Olukoya’s Beer Supply Shop: SW8/871C Liberty Stadium Road, Ibadan, for the Purchase of assorted Brands of cartons of Beer and Drinks.

The Defendants failed to supply the cartons of beer and drinks. And have refused and/or neglected to Refund the payments for the Beer and Drinks despite repeated demands.

In the alternative – Plaintiffs claim a Declaration that they are entitled to Repayment – Back of their various Beer Purchase. Deposits with the Defendants at Ibadan since 1984 totalling the sum of Twenty Four Thousand, Six Hundred and Twenty Nine Naira (N24,629.00) upon a consideration that has failed.”

The averment in the Statement of Claim was that at various times in 1984, each of the appellants paid certain amount of money,as usual, to the 2nd appellant for and on behalf of the 1st respondent for weekly supply allocation of assorted beer and drinks. It was alleged that the 2nd respondent collected the various sums of money from the appellants during the course of his employment with the 1st respondent. The appellants in their averments in their Statement of Claim, gave particulars of the amount collected from each of them in the manner aforesaid, including the date of payment, mode of payment (whether by cash or cheque). The quantity and the type of drinks for which payment was made. Only the 5th appellant paid with a cheque which she issued to the 2nd respondent. The 2nd respondent was to cash the cheque and use the cash for the aforesaid purpose.

The evidence led by the appellants was, inter alia, that the 1st respondent was a beer distributor. The 2nd respondent was a clerk/cashier to the 1st respondent. The 1st respondent had her beer shop on the ground floor of her house whilst she lived on the first floor. The appellants, between 1979 and 1984, patronised the 1st respondent and became her customers as they used to buy beer from her. During the relevant period, the 1st respondent introduced the 2nd respondent to each of the appellants as her clerk through whom the appellants could order and pay to the 1st respondent for beer of all types. No receipt was to be issued for any payment, made in the manner aforesaid, but such payment was to be recorded in the 1st respondent’s ledger book by the 2nd respondent. The arrangement was followed for some time without hitch but in March, 1984, the appellants paid various sums of money individually, at different times and in the manner aforesaid for some cartons of beer but none of them was supplied with the cartons of beer which she ordered for and the amount paid by each of them was not refunded to her.

The 1st respondent denied ever knowing the 2nd, and the 6th to 9th appellants. Her evidence was that she was selling her beer on cash and carry basis and she asserted that she never gave the 2nd respondent authority to accept money in advance or at all from her customers. In the case of the 2nd respondent, he denied knowing some of the appellants but admitted that he dealt with some of them in his private and/or personal capacity separate from the transactions involving the appellants, the 1st respondent and himself (the 2nd respondent).

After consideration of the evidence before him and the submissions of the learned counsel for each of the parties, the learned trial Judge entered judgment in favour of the appellants in terms of their Statement of Claim except the two of them (2nd and 7th plaintiffs) whose claims were struck out. The learned trial Judge gave consideration to the question whether by virtue of Order 8 rule 1 of the High Court (Civil Procedure) Rules of Oyo State the appellants could join their causes of action in one writ of summons and he came to the conclusion that they could. He also considered the question whether there was a contract between the appellants and the respondents and, if so, whether the respondents jointly or any of them could be held liable for the refund of the contract and he held that a master and servant relationship existed between the respondents. He rejected the evidence that the 1st respondent did not instruct the 2nd respondent to collect or accept money on behalf of the 1st respondent. Consequently, the learned trial Judge held that the 2nd respondent was directly liable while the 1st respondent was vicariously liable for the act of the 2nd respondent.

Dissatisfied with the judgment of the learned trial Judge, the respondents lodged an appeal against it to the Court of Appeal. The court below allowed the appeal. The judgment of the learned trial Judge was set aside and the appellants claim was struck out. The court below held that the learned trial Judge erred in law in holding that the 1st respondent was liable vicariously for the acts of the 2nd respondent because of the relationship of master and servant between them. In the view of the court below, the submission of the learned counsel for the respondents that the 5th appellant by issuing a cheque to the 2nd respondent made him her own (5th appellant’s) agent was correct. In any case, the court below held that the appellants could not bring a joint action as they did.

Dissatisfied with the judgment of the court below, the appellants have lodged an appeal against it to this court. The appellants and the 1st respondent duly filed and exchanged briefs. The appellants formulated four issues for determination in their brief and the 1st respondent adopted and relied on the issues as formulated by the appellants. The aforesaid issues are as follows:-

“(1) Whether the lower court was right by its reference to foreign rules of court in the construction of local rules of court, especially when the local rules of procedure provided for a wider base.

(2) Whether the plaintiffs action was incompetent for misjoinder of parties and/or misjoinder of causes of action.

(3) Whether the lower court was right in basing its decision solely on technicality of procedure, especially when the procedure is not fundamentally defective.