MR. Kelvin Ihesiaba & Ors V. Chief Mathew Ochepa (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment)

The appellants alleged that at diverse occasions the respondent employed them to work as security guards in Makeri Smelting Company Ltd., a company under receivership at the time this suit was filed in the Court below on 15th December, 2005. Their appointments were in the course of performing their respective duties terminated without the payment of their individual salaries and allowances.

The respondent alleged in paragraph 4(a)-(h) of their defences that in the course of the performance of their duties it was discovered that 20 bags of columbite each weighing about 50kg i.e almost one ton, kept under key and lock disappeared from the premises on the 1st respondent. The appellants usually kept the keys to the warehouse where the columbite was stored. Police invited to investigate the theft found that an analyzing machine was also missing. Only the 2nd respondent filed a statement of defence on 31st May, 2006 denying liability.

2nd respondent prayed that the suit be struck out for lack of jurisdiction. Alternatively, that the name of the 2nd respondent should be struck out on the grounds that the 1st respondent is under receivership. The proper party to have been sued is the Receiver/Manager of the 1st respondent. The 2nd respondent was therefore misjoined in the proceedings, he being an agent of a disclosed principal.

Counsel addressed the Court. Hon. Justice R.K. Sha (Mrs) of the High Court of Justice, Plateau State, sitting in Jos, in a considered ruling delivered on 5th February, 2009 struck out the substantive suit, holding at page 86 lines 19 to page 87 lines 1-2 of the printed record as follows:

“On the whole, I agree with learned Counsel to the 2nd defendant, Mr. Madugu that the suit of the plaintiffs is incompetent before the Court for reason of non-joinder and misjoinder. Learned plaintiffs’ Counsel had in his arguments submitted that the 2nd defendant was not competent to raise this objection on behalf of the 1st defendant, I think he can since it is a matter that affects the jurisdiction of this Court. In my view the objection succeeds. This suit is hereby struck out for lack of competence.”

Aggrieved by the ruling the appellants incorporated three grounds of appeal to their Notice of Appeal filed on 21st May, 2013 pursuant to an order of the Court of Appeal made on 17th May, 2012. The appellants filed a brief of argument on 4th July, 2013 with a deeming order made on 26th May, 2014. The respondent’s brief was settled by Solomon Umoh, SAN and filed on 10th September, 2014 with a deeming order on 3rd March, 2015.

When the appeal came up for hearing on 24th March, 2015 Counsel adopted their respective briefs of argument. The learned silk referred to the preliminary objection filed on behalf of the respondent to the hearing of the substantive appeal on the following grounds:

“(1) The proper party i.e defendant is not before the Honourable Court.

PARTICULARS:

(a) The 1st defendant is a company under receivership.

(b) The proper defendant in this action is the receiver/manager of the 1st defendant.

(2) There is a misjoinder of 2nd defendant in this suit.

PARTICULARS: