S. A. OLAWALE (DEFENDANT/APPELLANT)

v.

THE ATTORNEY-GENERAL OF THE FEDERATION & TOTAL OIL PRODUCTS (NIGERIA) LTD (PLAINTIFF/RESPONDENT)

1971) All N.L.R. 315

Division: High Court of Lagos

Date of Judgment: 26th November, 1971

Case Number: SUIT NO. 199/1970

Before: Ademola, C.J.N., Madarikan, Fatai-Williams, JJ.S.C.

Appeal from the High Court (Lagos).

HELD:

(1)     Even if the trial Judge in this case was of the view that the 2nd defendant should not have been made a respondent to the petition, the decision in Kirk's case was no authority for dismissing the plaintiff/appellant's petition against the 1st defendant/respondent. He should have proceeded to consider the claim against the 1st defendant/respondent alone on its merit.

(2)     It is not the intention of the legislature in section 3 of the Petition of Rights Act that if the Attorney-General, as he indeed has the power to do, designates any other person as a defendant in a petition of right, nobody could be joined as a defendant with that person in that action.

(3)     Consequently, the trial Judge was in error when he dismissed the plaintiff/appellant's claim against the Attorney-General on the flimsy objection as to the joinder of the 2nd defendant.

Appeal allowed: Judgment of High Court set aside: Case remitted to High Court to be heard against the 1st defendant on its merits.

Cases referred to:

Emmanuel Olasupo & ors v. Attorney-General of Western Nigeria & Ors, (1961) All N.L.R. 562.

Attorney-General v. Kirk, (1872) L.R. 14 Eq. 558.

Feathers v. The Queen, 12 L.T. 114.

Act referred to:

Petition of Rights Act, Ss. 3, 4, Cap. 149. Laws of the Federation.

Petition of Rights Act, (23 and 24 Vict. C. 34).

Crown Proceedings Act, 1947 (England).

APPEAL from the High Court (Lagos).

SUIT NO. 199/1970.

Owodunni for the Defendant/Appellant.

Omotosho (Mrs), Principal State Counsel, for the Plaintiff/Respondent.

Fatai-Williams, J.S.C. (delivering the judgment of the court):-The plaintiff, now appellant, is a transporter and owner of a bus bearing the identification No. LF.3995. On 20th December, 1965, at Sapele, the plaintiff's driver (1st Pl/W) obtained a ticket (ex. E) for 9s for the purpose of conveying the said bus from the Sapele side of the River Ethiope to the Benin side of the said River on the MB. "SAPO", a ferry owned by the Federal Ministry of Transport. The plaintiff's bus together with an oil tanker (identification No. LJ.5405) and other vehicles were duly put on the said ferry. At about 10p.m. with all the vehicles still on the ferry, the oil tanker, while being repaired by its driver, caught fire. The fire quickly spread to the plaintiff's bus before it could be taken off the ferry. As a result of the fire, both the oil tanker and the bus were completely destroyed. Whereupon the plaintiff in Suit LD/108/1968 commenced proceedings by petition of right in the High Court of Lagos wherein he claimed against the two defendants jointly and severally the sum of £5,970 as damages suffered as a result of the destruction of his vehicle. The particulars of claim read:-

"1. To cost of the vehicle                £1,700

2. To building of its body                     120

3. To cost of rebuilding to bus             500

4. General damages                        3,650

                          Total                    £5,970"

In order to institute the proceedings against the Federal Ministry of Transport, the plaintiff had to comply with the provisions of section 3 of the Petitions of Right Act (Cap. 149 of the Laws of the Federation and hereinafter referred to as the Act) which read:-

"All claims against the Government of the Federation or against any Ministry or department thereof, being of the same nature as claims which before the commencement of the Crown Proceedings Act 1947 of the Parliament of the United Kingdom might in England have been preferred against the Crown by petition, manifestation or plea of right may, with the consent of the Attorney-General of the Federation, be preferred in a High Court having original jurisdiction in respect thereof or if the Supreme Court has such jurisdiction, in that Court, in a suit instituted by the claimant as plaintiff against such person as the said Attorney-General may designate, as defendant, for the purpose."

Pursuant to the above provisions a statement of claim in which the Attorney-General of the Federation was sued jointly with the Total Oil Products (Nigeria) Limited was filed in accordance with the procedure laid down in section 4 of this Act. This section reads:-

"4      (1)     The claimant shall not issue a writ of summons, but the suit shall be commenced by the filing of a statement of claim in the court and the delivering of two copies thereof at the office of the Attorney-General of the Federation and no fee shall be payable on filing or delivering such statement.

(2)     The decision of the Attorney-General of the Federation shall be conclusive and, if he gives his consent, one copy of the statement of claim with his fiat endorsed shall be returned to the court having original jurisdiction; and the claim shall be prosecuted in the court."

The Attorney-General duly gave his consent and signified this in a letter dated 20th October, 1969, addressed to the Registrar, High Court, Lagos. Having regard to the provisions of section 4 of the Act referred to above, we must observe that the Attorney-General must be deemed to have seen a copy of the statement of claim before giving his consent.

Paragraphs 11-26 of the statement of claim read:-

"11. That the driver of the oil tanker at about 10 pm. decided to open the bonnet of the tanker to examine what was wrong when he could not get somebody to help him push down the tanker, the government workers in the ferry having deliberately refused to push down the tanker from the ferry.

12.     That the driver having opened the bonnet switched a match negligently to light his cigarette and candle to examine the engine on the ferry.

13.     That the driver did this negligent act to the knowledge of the servants of the Ministry of Transport and without sufficient warning if there was warning at all.

14.     That as a result of the negligent lighting of the candle, the tanker caught fire.

15.     In consequence of the event in paragraph 14, the plaintiff's vehicle and the tanker were completely destroyed.

16.     That as a result of the fire accident, the plaintiff has suffered financial loss.

17.     That the plaintiff bought the vehicle in 1962 for £1,700. That the plaintiff spent £120 to build its body.

18.     That early in 1965 the plaintiff converted the vehicle to a bus and spent another £500 to rebuild the body.

19.     That the plaintiff has used the vehicle for only 5 months after the reconstruction before this destruction.

20.     That the bus was fetching the plaintiff £10 daily.

21.     That the passengers of the bus who had their luggage's destroyed had been putting up their various claims to the tune of £2,000.

22.     That the plaintiff will contend at the trial that the government was negligent in allowing a spoilt vehicle to be left on the ferry for upwards of 4 hours without arranging to push it down.

23.     That the government was negligent in allowing a spoilt tanker to be repaired on the ferry.

24.     That it was negligent in not giving sufficient notice to the driver of LJ.5414 not to use open light on the ferry.

25.     Finally that the contractual obligation of a common carrier had not been fulfilled by the government.

26.     That the 1st and 2nd defendants are jointly and severally liable."

The 1st defendant, in his statement of defence headed "Statement of 1st named defendant" admitted the averments in paragraphs 14, 15, and 16 of the statement of claim but denied those in paras. 12, 13, 17 to 26.

At the hearing on 20th February, 1970, the plaintiff gave evidence in support of his claim and called one witness. In addition he produced a letter dated 31st July, 1968, which he received from the 1st defendant before he commenced proceedings. The contents of the letter (Ex. C) read:-

"WITHOUT PREJUDICE"

Messrs M. Ola Owodunni and Co., Barrister and Solicitors,

48 Docemo Street, Lagos.

Dear Sir,

Destruction of Vehicle LF.3995 S.A. Olawale

With further reference to my letter No. MJ.807/S.2/G/Vol.N/700 of the 4th March, 1968, I am now in a position to inform you that, quite without prejudice, the Government admits liability for the destruction of this vehicle.

Although the Government has no intention of disputing the issue of liability, it still has to be satisfied as to the quantum of damages claimed by you. To enable this to be assessed positively, I would request you to commence proceedings by way of Petition of Right joining both the Solicitor-General of the Federation and Total Oil Products as defendants. This procedure will also help to determine whether or not Total is liable to indemnify the Government or their degree of contribution as the case may be.

I am, Sir,

Your obedient servant,

N. Lolade Isikalu (Mrs).,

Ag. Principal State Counsel,

for Solicitor-General of the

Federation and Permanent Secretary."

(The italics are ours.)

The 1st defendant called only one witness, one James Sinclair (1st D/W), a Principal Marine Officer attached to the Inland Waterways Division of the Federal Ministry of Transport, Lagos. Part of his testimony reads:-

"The Ministry of Transport was in no way negligent about the operation of the Sapo. Nothing done by the Sapo was responsible for the destruction of the plaintiff's vehicle. The Ministry is not liable to the plaintiff in the sum of £5,970 or at all."

To questions asked during cross-examination, this witness answered as follows:-

"I was not present when the fire broke out on the ferry. One John Ogutubo was the Rivermaster on the Sapo at the material time. He was solely responsible for the operation of the ferry."

In his address at the close of the case for both parties, Mr Ibidapo-Obe, the Senior State Counsel, who appeared for the 1st defendant submitted, for the first time, that the plaintiff's action must fail on the ground of misjoinder. The learned Senior State Counsel then pointed out that while an action instituted by a petition of right against the Crown alone was good, when a plaintiff joined another party with the Crown, the claim could no longer be instituted by way of petition of right. He referred to the decision in Emmanuel Olasupo and ors. v. Attorney-General of Western Nigeria and 2 ors. (1961) All N.L.R. 562 as authority for this proposition.

In a reserved judgment, the learned trial Judge dismissed, with justification, the claim against the 2nd defendants on the ground that no case had been made out against them. He did not consider the plaintiff's claim against the 1st defendant on the merits. He merely referred to the submission made on behalf of the 1st defendant as to joinder and to the decision in Olasupo v. the Attorney-General of Western Nigeria cited by Counsel and then dismissed the plaintiff's claim after finding as follows:-

"In Kirk v. R: Attorney-General v. Kirk, L.R. 14 Eq. 558 it was held that it is wrong to join anyone with the Queen as a respondent to a Petition of Right. The cases in which the Petition of Right is open to the subject are set out in Feathers v. The Queen 12 LT. 114 at p. 117. The submission of Counsel for the 1st defendant raises in my view an important issue of procedure. I know of no impediment preventing a citizen from instituting action by way of a writ against a public officer in a Department, Ministry or Corporation in respect of any alleged negligence or default in the execution of the Public Officer's duty, to which other parties may be joined as long as the action is filed within the time prescribed by law and/or on the giving of the requisite notice where this condition is stipulated. If a citizen chooses to bring an action by way of Petition of Right, then on the authority cited the Attorney-General alone can be made a respondent."

At the hearing of this appeal, the plaintiff/appellant withdrew the appeal against the 2nd defendant/respondent and the appeal against him was accordingly dismissed. Hearing of the appeal against the 1st defendant/respondent then continued. Mr Owodunni, for the plaintiff/appellant, complained that under the Act, the Attorney-General (1st defendant/respondent) could not be sued without his consent. Moreover, having seen the statement of claim and given his consent, it was not open to the Attorney-General to contend at the trial that he had been wrongly joined with another person. Learned Counsel further complained that this contention about misjoinder was not raised by the 1st defendant/respondent in his pleadings and that, assuming there was a misjoinder, it was unjust to dismiss the plaintiff/appellant's claim; what the learned trial Judge should have done was to strike out the claim against the 2nd defendant and proceed to consider the claim against the 1st defendant/appellant on the merits. Finally, learned Counsel submitted that the decision in Attorney-General v. Kirk L.R. 14 Eq. 558 relied upon by Morgan J. (as he then was) in Olasupo v. Attorney-General of Western Nigeria (1961) All N.L.R. 562 in deciding that the Crown could not be joined with another party in a petition of right did not support that conclusion, and that that case is, therefore, no authority for that proposition of law. Learned Counsel then implored us to send the case back for judgment to be given on its merits.

Succinctly stated, the reply of Mrs Omotosho, Principal State Counsel, who appeared for the 1st defendant/respondent, to these complaints is as follows. There should be a distinction between an action instituted by way of petition of right and one instituted by the issue of a writ of summons. If the action had started by the issue of a writ, there would have been no question of misjoinder. However, as it was commenced by a petition of right, it was wrong to join another person in the claim against the Attorney-General. As this objection as to joinder is a point of law, it could be raised at any time during the trial and need not be pleaded at all. Moreover, since there could be no estoppel with respect to a point of law, the consent given by the Attorney-General cannot stop him from raising the question of misjoinder which is a point of law. The two decisions relied upon by the learned trial Judge for holding that there was a misjoinder showed clearly that before the Crown Proceeding Act, 1947, came into force, the Crown could not be joined with another party in a petition of right. For the same reason, argued Mrs Omotosho, the Attorney-General of the Federation, having regard to the provisions of section 3 of the Petitions of Right Act, could not be joined with another person in the instant case.

To our mind, there is merit in the complaints of learned Counsel for the plaintiff/appellant. In the first place, the contents of the letter (ex. C) shows clearly that the 2nd defendant was joined at the suggestion of the 1st defendant/respondent. Secondly, the title of the case as shown in the statement of claim and the averments in paragraph 26 thereof indicate that at the time he gave his consent, the 1st defendant/respondent ought to have known that he was being sued jointly with the 2nd defendant. Thirdly, the complaint about misjoinder should have been made earlier in the proceedings and not sprung as a surprise on the plaintiff/appellant after evidence had been led by all the parties to the dispute; in this respect, we find it difficult to resist the conclusion that the complaint was only made when learned Counsel for the 1st defendant/respondent realised at that late stage of the proceedings that the plaintiff/appellant was unable to make out a case against the 2nd defendant. Finally, while it is a fact that Morgan J. (as he then was) held in Olasupo and ors v. Attorney-General, Western Nigeria and ors (supra) that:-

"it is wrong to join anyone with the Crown as respondent to a petition of right,"

he relied, for that decision, on the observation of Sir John Wickens, Vice-Chancellor in Kirk v. The Queen; Attorney-General v. Kirk (1872) 14 Eq. 558. We, however, doubt whether the observation of the learned Vice-Chancellor in that case went as far as learned Counsel for the 1st defendant/respondent would want us to believe. This view is borne out by the facts which are as follows. One John Kirk, a contractor for public works, commenced the first of the two cases (that is Kirk v. The Queen) by a petition of right. The respondents to it were the Queen and one Captain Percy Smith of the Royal Engineers. Kirk's object in bringing the petition was to be allowed to continue a contract for the construction of barracks and buildings made between him and the Secretary of State for War, and to obtain payment of the sums due to him for works already executed and materials supplied which payment, he alleged, was unjustly withheld through the conduct of Captain Percy Smith; he also claimed compensation in damages for breach of the contract by the War Department.

At the hearing, the Solicitor-General who appeared for the respondents submitted that "a petition of right against the Queen and another respondent cannot be sustained." In considering this objection the learned Vice-Chancellor observed at page 563 as follows:-

"Before the Petitions of Right Act (23 and 24 Vict C. 34), the petition was addressed was addressed to the Queen alone; and had this peculiarity, that you had to establish, ex parte, a prima facie case, on oath, before the petition could be heard at all. On a petition of right proper, before the Act, a subject could not have been joined with the Crown. On petitions of right, since the Act, bills have been filed against the Attorney-General. Rolt v. Attorney-General (unreported) was a petition of right first, and then turned into a bill. The result of a petition of right was, if successful, that Her Majesty-not with reference to the remedy, but the trial of the right, so to speak-descended from the throne and allowed herself to be sued before her own inferior officers, just as if she were a subject; and proceedings were instituted in the same form; and with the addition of whatever other parties might be necessary, or would be proper if the Queen had been a subject. But it seems to me there is nothing which in the least authorises the joining of a subject with the Queen as respondent to the petition itself. However, if I have jurisdiction, by consent or otherwise, to grant an injunction against the Crown, the fact that Captain Smith is unnecessarily or improperly mentioned as a party can hardly oust it, at least in this proceeding." (The italics are ours.)

It is clear from the above that while he expressed the opinion that there was nothing which authorised the joining of a subject with the Queen as respondent to the petition itself, the learned Vice-Chancellor observed, in plain terms, that if he had jurisdiction to hear the petition, that misjoinder could "hardly oust it". It therefore follows that even if the learned trial Judge in the instant case was of the view that the 2nd defendant should not have been made a respondent to the petition, the decision in Kirk's case is no authority for dismissing the plaintiff/appellant's petition against the 1st defendant/respondent. He should have proceeded to consider the claim against the 1st defendant/respondent alone on the merits.