MIDLAND GALVANISING PRODUCTS LIMITED VS COMET SHIPPING AGENCIES NIGERIA LTD

CORAM

RITA NOSAKHARE PEMU – JUSTICE, COURT OF APPEAL

CHINWE EUGENIA IYIZOBA – JUSTICE, COURT OF APPEAL

JAMILU YAMMAMA TUKUR – JUSTICE, COURT OF APPEAL

PARTIES

MIDLAND GALVANISING PRODUCTS LIMITED   APPELLANTS

COMET SHIPPING AGENCIES NIGERIA LTD RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiff/Appellant instituted an action at the trial court against the Defendant/Respondent claiming the sum of N4, 173,830.00 (Four Million, One Hundred and Seventy-Three Thousand, Eight Hundred and Thirty Naira) for 15 of the cold rolled steel which got damaged as the goods were being off loaded from the vessel. During cross examination of witnesses, at the conclusion of evidence in chief, it was showed that the witnesses were insurers exercising a right of subrogation. The Plaintiff/Appellant then filed an application to further amend its amended statement of claim to plead facts relating to the subrogation. The application was granted. The Defendant/Respondent did not amend its statement of defence but opened its defence. At the conclusion of trial, the trial court entered judgment in favour of the Defendant/Respondent. Aggrieved by the decision of the trial court, the Plaintiff/Appellant appealed to this court.

HELD

Appeal Allowed

ISSUES

1. Whether the Learned trial court judge was right in law when he raised the issue of whether this suit was sustainable in the name of the Plaintiff/Appellant suo moto and decided the issue against the Plaintiff/Appellant without calling for further address on the issue from the parties?

2. Whether Leadway Assurance Company Limited, the Plaintiff/Appellant’s insurer right to have instituted and maintained this suit under a right of subrogation in the Plaintiff/Appellant’s name?

RATIONES DECIDENDI

RAISING AN ISSUE SUO MOTO BY COURT – EFFECT OF RAISING AN ISSUE SUO MOTO WITHOUT GIVING THE PARTIES OPPORTUNITY TO ADDRESS THE COURT ON THE NEW ISSUE

“It is a fundamental flaw and a mistrial in breach of the rule of fair hearing for a court to raise an issue suo moto and rely on same to decide the case without giving the parties the opportunity to address him on the new issue.” PER CHINWE E. IYIZOBA, JCA

COMMENCEMENT OF ACTION – WHERE THERE IS SUBROGATION, A SUIT SHOULD BE INSTITUTED IN THE NAME OF THE INSURED AND NOT IN THE NAME OF THE INSURANCE COMPANY

“When there is subrogation, a suit in court must be instituted in the name of the insured and not in the name the insurance company as there is no privity of contract between the insurance company and the defendant.” PER CHINWE E. IYIZOBA, JCA

JUDGE – DUTY OF A JUDGE

“A judge is not supposed to make case for any of the parties. He should be seen to maintain his independence as an unbiased arbiter and to decide issues presented to him. If the need arises for him to raise a new issue; he must give the parties the opportunity to be heard before taking a decision based on the new issue.” PER CHINWE E. IYIZOBA, JCA

CASES CITED

STATUTES REFERRED TO

Court of Appeal Act.

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