Anthony Ehidimhen Vs Ahmadu Musa & Anor (2000)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C.

This action was commenced in the High Court of Borno State. The writ of summons together with the statement of claim was served on the defendants now respondents after obtaining leave of the trial court for service on the 2nd respondent who was out of the jurisdiction of that court. In the writ, plaintiff, now appellant claimed for:-

“A declaration that the defendants are jointly and severally liable to the plaintiff for all the damages suffered by the plaintiff as a result of an accident involving the plaintiff’s Peugeot Saloon Car with registration No. BD 8118 JA and the second defendant’s MAN DIESEL Lorry with registration No. PL 218 J, driven by the first defendant for and on behalf of the second defendant which said accident occurred on the 14th of December 1987 near Lamanti Village in the Konduga Local Government of Borno State along the Biu-Maiduguri Federal Highway as a result of which the plaintiff’s car and the goods being carried therein were completely destroyed”.

The claim was particularised in paragraph 17 of the statement of claim as follows:-

“(a) N61,000.00 (sixty one thousand naira) being the pre-accident value of the plaintiff’s peugeot 505 SR Saloon car with registration No. BD 8118 JA;

“(b) As special damages the sum of N1,314,600, (one million, three hundred and fourteen thousand, six hundred naira) being the value of one Haemodialysis machine, one sonicaid ultra sound machine, one passport, Children’s clothes and drugs completely destroyed by fire as a result of the accident;

(c) Interest at the court rate of 10% per annum on the above total sum of N1,375,600.00 (one million, three hundred and seventy-five thousand, six hundred naira) with effect from the date of judgment until liquidation.”

The defendants (hereinafter referred to as the respondents) filed a joint Statement of Defence denying any liability. In particular they denied the ownership of the man diesel lorry which was involved in the accident with the appellant’s car or that G.B.O. Ollivant (Nigeria) Limited or G.B.O. is part of U.A.C. of Nigeria Limited. The appellant also filed a reply to that defence.

The trial of the action was commenced on the 20th of February, 1990, in the course of which each side called 4 witnesses, at the end of which learned counsel for the parties addressed the court at length before the court adjourned for judgment. On the 9th of August 1991, the learned trial Judge Ogunbiyi J., delivered a considered judgment in which she found that the appellant had proved his case against the respondents and she proceeded to order that the respondents were jointly and severally liable to the appellant as per paragraph 17 of the appellant’s statement of claim set out earlier in this judgment.

The respondents were not happy with his judgment and by notice of appeal containing 12 grounds of appeal, they appealed to the Court of Appeal, Jos. There, the parties filed and exchanged their written briefs. The appeal was then heard and in a reserved judgment delivered on the 26th January, 1994, by Muhammad JCA and concurred by Orah and Okezie JJCA, the Court of Appeal held that United Africa Co. of Nigeria Limited was not a proper party to these proceedings and went ahead per Muhammad JCA to order as follows:-

“In the circumstances, the appeal succeeds. The 2nd appellant is struck out. The judgment of the lower court is set aside. The case is remitted to the lower court for rehearing. The parties are at liberty to amend their pleadings – if they so wish”.

Dissatisfied with this judgment, the appellant now appealed to this court on ten grounds of appeal.

In this court, the parties filed their respective briefs as required by the rules and exchanged them between themselves. In their joint brief, the appellants formulated 3 issues for the determination of this court which are:-

“(1) Whether the Court of Appeal was correct in setting aside the decision of the trial court refusing to grant the defendants leave to amend their statement of defence at the close of the plaintiff’s case