IFEANYICHUKWU (OSONDU) CO LTD v. SOLEH BONEH (NIGERIA) LTD

IFEANYICHUKWU (OSONDU) CO LTD (PLAINTIFF/APPELLANT)

AND

SOLEH BONEH (NIGERIA) LTD (DEFENDANT/RESPONDENT)

……………………..A…………………….

Ogundare, JSC (Delivered the Leading Judgment):- 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 29 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 OY9065AD 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 Following difficulties encountered in getting Mosudi Akanbi to be served with the Writ of Summons, the action was withdrawn against him and his name was struck off the proceedings.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:-

“15. Further, or in the alternative to paragraphs 5 to 8 and 10 to 15 hereinabove, 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 first defendant and the present defendant as second defendant;

(ii) On the 24 February 1984 the plaintiff discontinued the action as against the said first defendant;