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SAKA OWOADE
V.
THE UNITED AFRICA COMPANY LIMITED
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
15TH DAY OF MAY, 1951
2PLR/1951/63 (WACA)
OTHER CITATION(S)
2PLR/1951/63 (WACA)
(1951) XIII WACA PP. 204 – 206
LEX (1951) – XIII WACA PP. 204 – 206
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
LEWEY, J.A.
DE COMARMOND, J.
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BETWEEN:
SAKA OWOADE – Defendant-Appellant
AND
THE UNITED AFRICA COMPANY LIMITED – Plaintiffs-Respondents
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ORIGINATING COURT(s)
Appeal from Decision of Reece, J.
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
PRACTICE AND PROCEDURE ISSUE(S)
PLEADINGS:- Pleadings insufficient – Alternative claims not pleaded – Plaintiff can only rely on case of action pleaded.
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CASE SUMMARY
The defendant was the appellant. By his writ of summons the plaintiff sued the defendant as a common carrier, and his statement of claim based his claim on the same grounds.
Counsel for the plaintiff in opening his case stated that the defendant was liable on two grounds, firstly as a common carrier, and secondly by virtue of the principle respondent superior. Plaintiff led no evidence to prove that defendant was a common carrier but led evidence to establish the doctrine of respondent superior.
At the conclusion of the plaintiff’s case counsel for the defendant submitted there was no case to answer as the plaintiff could not rely upon an alternative claim not pleaded.
The trial Court rejected this submission on the grounds that facts only need be pleaded and the facts pleaded disclosed the alternative claims. The Court gave judgment for the plaintiff.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. Both the writ of summons and the statement of claim showed that the defendant was sued in his capacity as a common carrier and no other.
2. The plaintiff had failed to comply with the provisions of Order 22, rule 8, of the Supreme Court (Civil Procedure) Rules, which requires that distinct causes of action should be stated separately and distinctly. The plaintiff’s claim therefore failed.
Cases referred to:-
(1) Guatret v. Egerton, L.R. 2, C.P. 371.
(2) West Rand Central Gold Mining Company v. Rex (1905), 2 K.B. 391.
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MAIN JUDGMENT
The following Judgment was delivered:
DE COMARMOND, S.P.J.
This is an appeal from a decision of Reece, J., given in favour of the plaintiff Company (now the respondent).
The defendant-appellant’s main ground of appeal is that the plaintiff having failed to establish that the defendant was a common carrier (which was the very basis of the claim) the action should have been dismissed.
The writ of summons set out a claim for a certain sum of money alleged to be the value of certain goods delivered to and accepted by the defendant’s clerk and the defendant’s lorry driver on behalf of the defendant, as common carrier, for transport to the plaintiff’s station at Ilorin, which goods the defendant failed to deliver.
The writ clearly means that the defendant was sued in his alleged capacity as a common carrier and in no other capacity. The clerk and the lorry driver are mentioned because they received the goods on behalf of their employer (the common carrier).
The statement of claim contained averments to the effect that the defendant carried on a road transport business as a common carrier, that he had introduced his clerk and his driver to the plaintiff Company and requested that goods for stations up-country be entrusted to him by the plaintiff Company for transport.
It was further averred that goods had been so entrusted and had been stolen by the said clerk and lorry driver. The statement of claim concluded thus:
“The defendant is liable as a common carrier to make good to the plaintiff the value of the said goods but has failed to do so. Whereof (sic) the plaintiffs claim as per writ of summons.”
The defendant denied in his statement of defence that he was a common carrier. He also denied all the other averments affecting him and went on to aver that the so-called clerk bad never been in his employ and that the driver bad no authority to accept the goods for transport.
The learned counsel for the plaintiff Company stated, when opening the case, that the defendant was liable on two grounds (presumably in the alternative?). The first ground was that he was liable as a common carrier, and the second was that he was liable by virtue of the principle respondent superior.
The plaintiff did not lead evidence to show that the defendant was a common carrier, but sought to rest the claim solely on the alleged responsibility of the defendant for the acts of his alleged servants. This was objected to by defendant’s counsel who had not called evidence, and who submitted that neither the writ nor the pleadings revealed that plaintiff had an alternative basis for his claim, and that the claim could not succeed because the defendant had failed to establish the ground of responsibility invoked by him, namely, the defendant’s responsibility as a common carrier.
The learned trial Judge rejected the submission made by counsel for the defendant. The gist of the reasons given by the learned Judge was that facts only are to be stated in pleadings and that paragraph 5 of the statement of claim violated the principle enunciated in Gautret v. Egerton (1) in that it set out that the defendant was liable as a common carrier to make good to the plaintiffs the value of the goods.
It is to be noted that the learned Judge made no reference to the writ of summons. I would also point out that, even if paragraph 5 of the statement of claim had not contained the words “as a common carrier”, there still remained paragraph 1 which clearly shows that the defendant was sued in his capacity as a common carrier and in no other. Had the plaintiff intended to sue the defendant, in the alternative, as a private carrier, he should have complied with Order 22, rule 8 of the Supreme Court (Civil Procedure) Rules which reads in part as follows:
“Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, they shall be stated as far as may be, separately and distinctly.”
I might also draw attention to Order 2, rule 2 of the Supreme Court (Civil Procedure) Rules which lays down, inter alia, that a writ of summons shall state briefly and clearly the subject matter of the claim and the relief sought for Rule 6 of the same Order makes it permissible to join several causes of action in the same suit.
I cannot subscribed to the view that the writ and the statement of claim in this case set out alternative causes of action.
I find it difficult to understand how the case of Gautre v. Egerton could be invoked against the defendant-appellant’s contention in the present case. That case makes it clear that ” the plaintiff must, in his declaration, give the defendant notice of what his complaint is … It (the declaration) ought to state the facts upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is charged …” I might also mention the case of West Rand Central Gold Mining Company v. Rex (2) where Lord Alverstone, C.J., quoted from Gautret v. Egerton after saying:
“Upon all sound principles of pleading it is necessary to allege what must, and not what may, be a cause of action …”
I am of opinion that the plaintiff could not succeed in the court below because he failed to establish the only cause of action that was before the Court, namely, that the defendant was responsible as a common earner.
I would therefore allow this appeal with costs.
The judgment of the Court below is set aside and a judgment dismissing the action with costs is substituted therefor.
Appeal allowed.
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