Ifeanyi Chukwu (Osondu) Co. Ltd. Vs Soleh Boneh (Nig.) Ltd (2000)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

The main question arising for determination in this appeal is a question of law framed by the parties, as follows:

“Whether the Court of Appeal was right in holding that failure (by the appellant) to join the respondent’s driver as a defendant in the present proceedings was fatal to the appellant’s case.”(words in brackets mine)

Following an accident that occurred at Abudu in Bendel State (now Edo State) on 29th May, 1981. the plaintiff (who is appellant in this appeal) sued the defendant (now respondent) claiming N64,521 damages it suffered as a result. The accident involved the two vehicles of the parties. The plaintiff’s vehicle Reg. No. IM1673G driven by its driver was a passenger coach; that of the defendant, Reg. No. OY 9065 AD was a trailer and was driven by one Mosudi Akanbi said to be the defendant’s driver. The action was instituted against Mosudi Akanbi and the defendant. Following difficulties encountered in getting Mosudi Akanbi to be served with the Writ of Summons. The action was withdrawn against him and his name was struck off the proceedings.

Pleadings were filed and exchanged and, by leave of court, amended. By paragraph 15 of its amended statement of defence, the defendant pleaded thus:

Further, or in the alternative to paragraphs 5 to 8 and 10 to 15 herein above, defendant will at or before the trial contend on a point of law that even if all the averments in the Amended Statement of claim are admitted (which is denied) the Amended Statement of Claim is bad in law in that it discloses no cause of action against the defendant.

Particulars

(i) The Writ of Summons originating this action was taken out against Mosudi Akanbi (Driver of defendant’s vehicle) as 1st defendant and the present defendant as 2nd defendant.

(ii) On the 24th February, 1984 the plaintiff discontinued the action as against the said 1st defendant:

(iii) The 2nd defendant’s (now the sole defendant on record) liability is vicarious, by operation of law and cannot be established when plaintiff has discontinued the action against the 1st defendant who is primarily liable;

(iv) The original Writ of Summons is inconsistent with the Amended Statement of claim,”

The case proceeded to trial at the end of which the learned trial Judge, in a reserved judgment, found:

1. “that I agree entirely with Mr. Okonjo that Mosudi Akande (sic) is a necessary party whose non-joinder is fatal to the plaintiffs case …. I hold that Mosudi Akande not being a party in this case I cannot pronounce any verdict against him for which the defendant company can be held vicariously liable. On this ground the plaintiffs action cannot succeed,”
2. that even if Mosudi Akanbi, the driver of the trailer were a party to this action the plaintiff would still have lost as it failed to prove any negligence against him;
3. that there is no nexus between the plaintiff’s vehicle Reg. No. IM 1673G and Exhibits B, C, D, E, F, 0 & H (tendered in support of the claim for damages). The said exhibits are not unequivocally referable to IM 1673G
4. “that the plaintiff, in the instant case. having tendered evidence of negligence on the part of the driver of OY9065AD cannot rely on the doctrine of res ipsa loquitur to sustain his claims.

He dismissed plaintiffs claims.

The plaintiff appealed to the Court of Appeal (Benin Division) upon two original and three additional grounds of appeal. The plaintiff in its written brief of argument in that court set out three issues for the court to consider, to wit: