Asiata Abubakar V. Alhaji Bashiru Falola & Anor (1997)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

The 1st respondent sued the present appellant as 2nd defendant and the present 2nd respondent as 1st defendant before the High Court of Kaduna in a writ of summons endorsed as follows:

‘The plaintiff claims against the defendants jointly and severally the sum of N220,000 (Two hundred and twenty thousand naira only) being the amount of the goods i.e. dry pepper taken by the defendants from the plaintiff arising from a mutually agreed contract.

The said sum of N220,000 (Two hundred and twenty thousand naira) has fallen due but the defendants failed, neglected and or refused to pay as agreed by the defendants.

WHEREOF the plaintiff claims against the defendant the said sum of N220,000 with interest at 10% per annum from 10th day of May 1993 until judgment is delivered.”

The 1st respondent who was plaintiff in the court below filed a statement of claim in which he mixed up the names of the defendants and made the 1st defendant in the writ of summons the 2nd defendant, and the 2nd defendant as the 1st defendant. He subsequently brought a motion to correct the mistake so that the parties should be as in the writ of summons. The motion was not opposed but at page 32 of the record of appeal the trial court inadvertently failed to give its ruling on it. It merely adjourned the matter without ruling on the motion before it. It was obvious however that the parties before the trial court stood as per the writ of summons.

The appellant filed a notice of preliminary objection to the case on the ground that he was not a proper party to be sued in the action and that there was no cause of action disclosed against him. There was no counter affidavit to his motion. The motion was argued before the trial court and in its ruling the learned trial judge dismissed the motion on the ground that there was a mix up in the names of the parties but failed to rule on the appellant’s grounds for the preliminary objection.

Dissatisfied with this ruling the appellant with leave of court granted on the 14th of January 1997 appealed to this Court on three grounds of appeal. In accordance with the rules of court, the appellant filed a brief of argument and identified two Issues for determination as follows:-

“1. Whether the learned trial judge considered either in full or at all the grounds of objection of the 2nd defendant

2. Whether the trial judge raising suo motu issues of alteration of position of parties on the statement of claim without hearing the parties had occasioned any miscarriage of justice.”

The 1st respondent filed a brief of argument with leave of court and in the brief he identified only one issue for determination as follows:-

“Whether or not the learned trial judge considered – the issues raised in the appellant’s Notice of preliminary objection.”

In the brief there was a preliminary objection to the competence of the appeal on the ground that the ruling of the lower court was an interlocutory decision which can only be appealed against with the leave of the lower court or this court and that the appellant appealed without leave. The preliminary objection has been overtaken by events. Originally the appellant appealed without leave but subsequently he sought leave to regularize his appeal and that leave was granted on the 14th of January 1997. Consequently the preliminary objection is hereby stuck out.

The appellant also filed a reply-brief which I find quite unnecessary as it does not advance his case in anyway.

The main argument of the appellant under the first issue is that having regard to the statement of claim, the action was based on contract between the 1st respondent and the 2nd respondent to which he was not privy, he was therefore not a proper party to the case and there was no cause of action disclosed against him. The trial court was therefore wrong in dismissing the preliminary objection without considering the substance of the objection. He referred to the case of Re Mogaji (1986) 1 NWLR (Pt. 19) 759.