MICHARRY AND CO. LTD v. EYURO & ORS
(2020)LCN/14258(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, June 10, 2020
CA/AS/193/2006
Before Our Lordships:
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
MICHARRY AND COMPANY LIMITED APPELANT(S)
And
- MR. FELIX EYURO 2. THE SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED 3. TEDDYBELLS LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT THE DOCTRINE OF PRIVITY OF CONTRACT IS APPLICABLE TO A NON-PARTY OR AN OUTSIDER WHO HAS BEEN UNWILLINGLY DRAGGED INTO THE CONTRACT
There is no opposition to the argument raised on this issue and the points raised therein are deemed conceded. However, it is proper to reiterate that the position of the law as succinctly put by the Supreme Court in United Bank for Africa Plc Vs Alhaji Babangida Jargaba (Supra) cannot be otherwise.
The sanctity of contract between parties must be respected. It is upon this that the doctrine of privity of contract is anchored. The doctrine does not extend to a non-party or an outsider who may have unwillingly been dragged into the contract with a view of becoming a shield or scape goat against the non-performance by one of the parties. PER DANJUMA, J.C.A.
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an Appeal by the 3rd Defendant from the judgment of Anigboro J. of the Delta State High Court of Justice, Warri Judicial Division in Suit No. W/187/2002. The Judgment which appears at pages 120-171 of the record was delivered on the 6th of January, 2005.
The Appellant herein was the 3rd Defendant at the trial and had been adjudged liable to pay the 1st Respondent, then plaintiff in suit No W/87/2007 salaries and allowances together with the 2nd Respondent herein, who was the 1st Defendant, for the months of March – November, 2002 when he was suspended from rendering his services, for which he was hired.
The 1st Respondent had pleaded and testified that this Appellant was a contractor of the 1st Defendant, now 2nd Respondent in respect of the services and only paid his salaries at the instance of the 2nd Respondent and at the 2nd Respondent’s office.
That he was infact a staff of the 2nd Respondent and not of this Appellant, herein. Inspite of the stance of the plaintiff/1st Respondent, the learned trial judge entered Judgment against the Appellant herein
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jointly with the 2nd Respondent for the payment of the salaries and Allowances of the 1st Respondent from March – November, 2002.
Peeved by the decision, the instant Appeal raising two (2 Nos) Issues have been filed. The subject Judgment delivered on the 6th of January 2005 was appealed against vide the Notice of Appeal dated and filed by R. E. Akpaorido, Esq on the 7th March, 2005 for the Appellant. It is contained on pages 182-184 of the record of Appeal and 3 Grounds of Appeal are raised.
Two (2) Issues were formulated therefrom the Grounds of Appeal.
There was no Respondent’s Brief of Argument in opposition filed by any of three (3) respondents in this appeal.
Arguing his first Issue the Appellant contended that the plaintiff who brought an action to Court was bound by his pleadings and the claim which he sets out before the Court. That it is upon the strength of his case that he will succeed or fail. The cases of Adeniran Vs. Alao (2002) FWLR (pt 90) p. 1285 at 1302, E-F Attorney-General of Ekiti State & Ors V. Prince Michael Daramola & Ors (2003) FWLR (pt 169) p. 1121 @ 1138 F-G relied on.
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That by the pleadings and evidence led by the 1st Respondent, he had insisted on the existence of a contract of service between the 1st and 2nd respondent since 1997, although he was not given any letter of employment, and had insisted on having same. That the 1st Respondent’s case was based on an oral contract of service in the 2nd Respondent’s company.
The learned counsel submitted that by the very assertion of the 1st Respondent, the burden of prove that he was employed by the 2nd Respondent rested squarely on the 1st Respondent by virtue of Sections 35 and 36 of the Evidence Act, 1990. That the 1st Respondent never predicated his case on the existence of any umbrella contract; that is Exhibit R3 in the proceedings before the trial Court. That the Exhibit R3, a contract between the 2nd Respondent and the Appellant was pleaded by the 2nd Respondent at paragraph 3 of its further amended statement of Defence contained at page 48 of the Record and tendered as R3 to defeat the 1st Respondent’s claim or assertion of the existence of a contract of service between the 1st Respondent and the 2ndRespondend which took effect in 1997.
It is submitted
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that the issue as to who employed the 1st Respondent between the 2nd Respondent and the Appellant and in respect of which Exhibit R3 was pleaded by the 2nd Respondent and tendered in evidence do not form part of the case of the 1st Respondent. The determination of which cannot be employed by the trial Court to enter judgment against the Appellant; that 1st Respondent did not found his claim on Exhibit R3 and made no claim there from.
That the trial judge made a case for the 1st Respondent, Klifco Nigeria Limited Vs. Nigeria Social Insurance Trust Fund Management Board, (2005) ALL FWLR (pt 288) p. 1209 at 12/9 par E-F relied upon.
That the Court having come to the conclusion that the 1st Respondent was not an employee of the 2nd Respondent and having dismissed relief 32 (c) of the statement of claim and struck out 32 (d), the claim against the Appellant seeking the relief in 32 (e) ought to have been dismissed.
Relying on Dije Mamman Dahiru Kinfau V. Musa Nazara Kinfau (2006) FWLR (pt 325) p. 188 at 204 A – B that it is not competent for the Court to suo motu make a case for either or both parties and then proceed to give judgment on the
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case formulated contrary to the case of the parties before it.
That Exhibit R3 was a contract between only the 2nd Respondent and the Appellant and the 1st Respondent, not being privy thereto, cannot enforce same.
United Bank for Africa Plc Vs Alhaji Babangida Jargaba (2007) ALL FWLR pt 380 p. 1419 at 1433 and International Carpets Ltd V. Savannah Bank Nig. Plc (2006) ALL FWLR (pt 325) p. 108 at 139, F-G refers and urged that this issue be resolved in favour of the Appellant.
RESOLUTION
There is no opposition to the argument raised on this issue and the points raised therein are deemed conceded. However, it is proper to reiterate that the position of the law as succinctly put by the Supreme Court in United Bank for Africa Plc Vs Alhaji Babangida Jargaba (Supra) cannot be otherwise.
The sanctity of contract between parties must be respected. It is upon this that the doctrine of privity of contract is anchored. The doctrine does not extend to a non-party or an outsider who may have unwillingly been dragged into the contract with a view of becoming a shield or scape goat against the non-performance by one of the parties. That is exactly
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the position of the Appellant in this appeal. The Court suo motu joined the Appellant herein when it noticed a relationship between it and the 2nd Respondent in Exhibit R3 and when it saw that salaries and Allowances were paid the 1st Respondent in the parol agreement by the Appellant in the 2nd Respondent’s premises.
The 1st Respondent – could perhaps, have sued on a quantum meruit claim but as a volunteer though. The challenge of the existence of an implied contract is yet another hurdle to cross.
This issue is resolved in favour of the Appellant.
On the 2nd Issue:
The Appellant contends that the relief sought and granted for salaries and Allowances ought not to have been so, as the 1st respondent’s case was founded on a contract of service/employment between the 1st respondent and the 2nd respondent. That 1st respondent in his evidence in chief said it was the 2nd Respondent that employed him and that the Appellant was only a pay point to the 2nd Respondent through which the 1st Respondent was paid salaries as represented by Exhibits Land T respectively. That the plaintiff/1st respondent throughout his pleadings, and
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oral evidence maintained this position stoutly and founded his reliefs on para 32(c), (d), (e) and (f) on same.
Appellant’s counsel contends that the reliefs 32 © and (d) being for declarations, the plaintiff must show that he has an interest or right which forms the foundation of his right to the relief.
That the plaintiff must succeed on the strength of his case and not on the weakness of the defendant’s case. That having dismissed 32(C) and struck out relief 32(d) of the statement of claim, the success of relief 32 (e) and 32(f) respectively are dependent on the struck out reliefs. That relief 32 (e) ought to have been dismissed. That its grant was not upon the case presented by the 1st respondent, but on the trial Court’s formulation, suo motu.
That the failure of the declaratory reliefs in 32 (d) and (f) automatically translated to a failure of the relief 32 (e) granted. That, this issue be resolved for the Appellant.
RESOLUTION OF ISSUE
The resolution of this issue is as predictable as day follows the night. The failure of reliefs (32) c and 32(d) on the claim of the 1st respondent, made his claim for
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salaries/allowances per relief 32 (e) on the account of the said employment, a non-issue.
That the plaintiff / 1st Respondent was on a sandy ground as to who his Employer (if any) was, can be seen in the fact that he had to file a motion on the 14-11-2002 for the joinder of the Appellant herein, Charry& Company Limited as 3rd Respondent and the amendment of his writ of summons as he was not sure of who his actual employer was. Were it not so, the application for joinder would have been by the 2ndrespondent, herein.
The success of the relief 32 (e) as granted was a perversion of justice and logic. It is set aside. That is to say, that the trial Court was wrong in holding the Appellant jointly liable for the payment of Salaries and Allowances to the 1st Respondent for the period it adjudged.
This issue is also resolved in favour of the Appellant.
Accordingly, this Appeal filed on the 7th day of March, 2005 succeeds and the Judgment in suit No M/187/2002 delivered thereupon on the 6th January, 2005 is set aside inconsequence. All the awards had no anchor and are vacated.
Parties to bear their respective costs.
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UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother M. A. DANJUMA. JCA. I agree with his reasoning and final conclusions.
This appeal succeeds and it is allowed. The judgment of the trial Court is hereby set aside. I adopt all the consequential orders including that as to costs.
ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.: I have read before now a draft copy of the judgment of M. A. DANJUMA, JCA and I agree with the reasoning and conclusions therein I have nothing more to add.
I hold that the appeal succeeds and is allowed. The decisions and orders of the trial Court are set aside. I abide by the order on costs.
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Appearances:
Diejomaoh, Esq. For Appellant(s)
Jonathan Ekperusi Esq. – for 1st Respondent
J. A. Ajuyah Esq. – for 2nd Respondent
3rd Respondent not represented and filed no Brief of Argument For Respondent(s)
