MINISTRY OF HEALTH & ORS v. MOBILE LINKS TECHNOLOGIES LTD (2020)

MINISTRY OF HEALTH & ORS v. MOBILE LINKS TECHNOLOGIES LTD

(2020)LCN/14715(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, November 18, 2020

CA/YL/99/18

RATIO

ACTION: THE PURPOSE OF THE JOINDER OF A PERSON

The purpose of the joinder of a person, natural or legal as a party to an action is that he should be bound by the outcome of the action. The issues to be settled in the action must be such that cannot be effectually and completely settled unless he is made a party. The person to be joined as Plaintiff or Defendant is a person who may have a stake in the subject matter of the suit or who may be affected by the decision of the Court. See, GREEN vs. GREEN (1987) 3 NWLR (PT. 61) P. 480, UKU & ORS. vs. OKUMAGBA & ORS. (1974) 3 SC P. 35, PEENOK INVESTMENTS LTD. vs. HOTEL PRESIDENTIAL LTD. (1982) SC. and AZUBUIKE vs. PDP & ORS. (2014) LPELR – 22258 (SC) P. 26, PARAGRAPHS A-C. PER UWA, J.C.A.
AGENCY: WHETHER A DISCLOSED PRINCIPAL CAN BE SUED

In NIGER PROGRESS LIMITED vs. NORTH-EAST LINE CORPORATION (1989) LPELR – 1996 (SC); (1989) 3 NWLR (PT. 107) P. 68 his lordship Obaseki, JSC at P. 20, paragraphs B-C held that:
“A disclosed principal may sue or be sued on any contract made on his behalf and in respect of any money paid or received on his behalf by his agent acting within the scope of his actual authority. DUKE OF NORFOLK vs. WORTHY (1808) 1 CAMP 337).
See, IKEDIFE & ANOR vs. OBIENU (1975) LPELR – 1471 (SC) P. 14, PARAGRAPHS D – F, AKALONU vs. MRS. S. O. OMOKARO (2002) LPELR–7131 (CA) PP. 16–18, PARAGRAPHS F – E, GTB PLC. vs. SOLOMON (2016) LPELR – 40342 (CA) PP. 15 – 16, PARAGRAPHS F-B, NWANKWO & ANOR vs. OKOLI & ANOR (2018) LPELR – 44053 PP. 35, PARAGRAPHS C-E and STANBIC IBTC BANK vs. LONGTERM GLOBAL CAPITAL LTD.& ORS. (2018) LPELR – 44053 (CA) PP. 106 – 107, PARARGRAPHS E-B. PER UWA, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1. MINISTRY OF HEALTH (ADAMAWA STATE HEALTH SYSTEM DEVELOPMENT PROJECT II) 2. ADAMAWA STATE GOVERNMENT 3. ATTORNEY GENERAL OF ADAMAWA STATE APPELANT(S)

And

MOBILE LINKS TECHNOLOGIES LTD RESPONDENT(S)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the ruling of the High Court of Adamawa State (hereafter referred to as the trial Court) delivered on 30th January, 2018 in which the trial Court dismissed the application for the joinder of one Mansur Suleiman and Pharm. Raymond Tartius as 4th and 5th Defendant’s respectively. At the lower Court, the Respondent was the Plaintiff while the Appellants were the Defendants.

The Appellants made out that necessary facts were shown to the effect that parties sought to be joined as necessary parties, in whose absence the suit of the Respondent before the trial Court cannot be effectively and effectually determined were contained in the affidavit in support of the Appellants’ application for joinder.

It was contended that even though the Respondent filed a counter affidavit and a written address in opposing the application for joinder, the Respondent did not raise issues of locus standi and abuse of Court process but, the trial Court, suo motu raised these issues and without hearing from the parties dismissed the application for joinder on the basis of lack of

locus standi and abuse of Court process.

The Appellants who were dissatisfied with the Ruling of the trial Court appealed to this Court. Two issues were raised for the determination of the appeal thus:
1. “Whether from the circumstances of this case the lower Court was correct in refusing the application for joinder of parties sought to be joined (Distilled from Ground 1).
2. Whether from the circumstances of this case, the lower Court was right in holding that the entire application for joinder was an abuse of Court process and that the Applicants lacked locus standi to make the application. (Distilled from Ground 2).”

The Respondent on her part, distilled the following sole issue for the determination of the appeal thus:
“Whether the learned trial judge erred when he dismissed the application for joinder and stated that the Appellants lack the locus standi”.

In arguing the appeal the learned Counsel to the Appellants Hayatu Abdulmalik, Senior State Counsel II, Adamawa State Ministry of Justice adopted and relied on his brief of argument filed on 24/12/18 as his argument in the appeal in urging us to

allow same and set aside the Ruling of the trial Court. In arguing his issue one, it was submitted that to determine whether a party should be joined to a suit, the pleadings of the parties must be considered. See, PRINCE JOEL OLOWODE AMOS & ORS vs. OBA ISRAEL ADEWALE OKOYA & ORS. (2014) LEGAL PEDIA CA EZ VP. It was argued that even though the parties sought to be joined are agents of a disclosed principal, it was alleged that they acted ultra – vires the express instructions of their principal, the 2nd Appellant, reference was made to Paragraph 4 (c) of the affidavit in support of the application; pages 140 – 142 of the printed records of appeal. It was alleged that the parties sought to be joined signed the contract, knowing that the condition necessary for the award of the contract was not met. It was contended that the parties sought to be joined cannot award a contract of such amount without the ratification of the Executive Council of the State, even if both parties have deposited their counterpart funds in the project account. It was argued that the case cannot be effectively settled without joining the parties sought to be

joined to give explanation on the issues raised. It was contended that their presence in the case would assist in the adjudication of the matter before the Court. See, NIGERIAN SOCIAL INSURANCE TRUST FUND vs. WING COMMANDER PULLEN EGBE IYEN (RTD.) & ORS. (2014) LEGALPEDIA CA 2MCI and PEENOK INVESTMENTS LTD. vs. HOTEL PRESIDENTIAL LTD. (1982) LEGAL PEDIA SC NAAL. It was concluded on this issue that the trial Court was wrong to have refused the application for joinder.

On the second issue, it was submitted that the issue of locus standi and abuse of Court process were raised and determined suo motu by the trial Court without calling on the parties to address it on the issue. See, MUDI vs. FBN PLC (2014) LPELR – 23446 (CA), LEADERS OF COMPANY LTD. & ANOR. vs. BAMAIYI (2010) LPELR – 1771 (SC) and WAGBATSOMA VS. FRN (2018) LPELR – 43722 (SC). It was submitted that the trial Court was wrong to have dismissed the application of the Appellant on the grounds of locus standi and abuse of Court process without giving the Appellants an opportunity to address the Court on these issues.

Without conceding that the decision of the trial

Court without calling the parties to address it is regular, alternatively that the Appellants had locus standi to make the application for joinder and that the application was not an abuse of Court process. In defining the meaning of abuse of Court process, reliance was placed on the cases of ADESOJI vs. FUTA (2017) 9 NWLR (PT 1570) PAGE 208 at 213, MOMOH vs. ADEDOYIN (2018) 12 NWLR (PT. 1633) PAGE 345 at 348. The abuse of Court process was defined as “improper use of judicial process by a party in litigation to interfere with due administration of justice”. It was argued that the parties sought to be joined acted without the authority of their office, even though they are agents of the 1st and 2nd Appellants they acted without the authority of their Principal in awarding the contract. It was re-argued that the parties sought to be joined are necessary parties. See, J & J TECHNO (NIG) LTD vs. Y.H.Q.S LTD (2015) 8 NWLR (PT 1460) PAGE 1 at 7 and OSIGWE vs. PSPLS MGT CONSTRUCTION LTD (2009) 3 NWLR (PT 1128) PAGE 378 at 383. Further, reference was made to Paragraph 4 (a-d), pages 140 – 141 of the printed records of appeal.

On the issue of locus standi, it was submitted that the Applicants had the locus standi to have brought the application for joinder before the lower Court. The term locus standi was defined while reliance was placed on the case of WUSHISHI vs. IMAM (2017) 18 NWLR (PT 1597) PAGE 175 at 180 and ORDER 13 RULES 4 and 19 OF THE ADAMAWA STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2013. It was concluded on this issue that the trial Court was wrong to have held that the application for joinder was an abuse of Court process and that the Applicants lacked the locus standi to have brought the application.

In response, the learned Counsel to the Respondent, G. C. Adikwu, Esq., relied on his brief of argument filed on 24/1/19 as his argument in the appeal in urging us to dismiss the appeal. In arguing his sole issue, it was submitted that the contract in issue was signed on behalf of the 1st Appellant. Further, that the parties before the trial Court are sufficient to determine the Respondent’s claim. See, VASSILEV vs. PAAS INDUSTRIES LTD. (2000) ALL FWLR PT. 19 at 418 at 430, PARAGRAPHS B – E, R.C.A.P. (NIG.) LTD vs. GOVERNOR OF OYO STATE (2009) ALL FWLR (PT 458) at

326, 430, PARAGRAPH C-D; also PARAGRAPH D-F, PAGE 337. It was submitted that the act of the parties to be joined has been ratified by the part payment made of the contract sum, contrary to the argument of the learned Counsel to the Appellants that the parties sought to be joined cannot award contracts of such amount without ratification of the Executive Council of the State, Paragraph 4.02, page 7 of the Appellants’ brief of argument. It was contended that the Appellants had no power to decide that the persons sought to be joined exceeded their powers as rightly stated by the trial Court at page 178 of the printed records of appeal.

It was argued that the parties sought to be joined signed the contract and acted in course of their employment therefore, the Appellants cannot rightly argue that the condition necessary for the award of the contract was not met as contended in Paragraph 4.02 at page 7 of the appellant’s brief of argument. See, IFEANYI CHUKWU vs. SOLEH BONEH LTD (2000) ALL FWLR (PT 27) at 2046 at 2065, PARAGRAPHS A-C, G-H. It was concluded on this issue that the Appellants benefitted from the contract and cannot turn around to deny the

contract. See, GLOBESTAR ENGR CO. LTD vs. MALLE HOLDINGS LTD (2005) ALL FWLR (PT 256) at 1309 at 1325, PARAGRAPHS D-E. Further, it was concluded that the trial Court was right to have held that the application for joinder is an abuse of Court process.

The Appellants’ two issues are encompassed in the Respondent’s sole issue. I will reformulate the issues into one thus:
Whether the trial Court was right to have dismissed the application for joinder and in holding that the Appellants lacked the locus standi and that the application was an abuse of Court process.

PEENOK INVESTMENTS LTD. vs. HOTEL PRESIDENTIAL LTD. (1982) SC. and AZUBUIKE vs. PDP & ORS. (2014) LPELR – 22258 (SC) P. 26, PARAGRAPHS A-C.
In the present appeal, the parties sought to be joined at the lower Court as the 4th and 5th Defendants (Mansur Suleiman and Pharm. Raymond Tartius) respectively from the pleadings and the averments in the affidavit in support of the application deposed to by one Fatti Abbo Jimeta, at page 141 of the printed records of appeal, in paragraphs 4 (a) and (b) deposed thus:
4. “That considering the documents at our disposal and after obtaining further brief from the first Defendant/Applicant it was revealed:
(a) That Mansur Suleiman and Pharm. Raymond Tartius signed this contract in their capacity as project manager and procurement officer respectively. The contract document is herewith attached and marked as Exh. “A”.
(b) That they acted ultra-vires the express instruction of their principal which is the 2ndDefendant/Applicant.
(c) That the project being a counterpart funded project, the award of the contract ought to have been done after both parties deposit counterpart fund in the project account.

(d) That the 4th and 5thDefendants (sought to be join) (sic) signed the contract knowing fully that the condition necessary for the award of the contract have not been met.”
From paragraphs 4 (a) and (b) above, it is clear that the parties sought to be joined were agents of a disclosed principal, the 1st and 2nd Appellants. The Appellants’ grouse is that the parties sought to be joined acted ultra vires that is, acted without the authority of their principal in awarding the contract in issue. In his brief of argument, at page 14, the learned Counsel to the Appellants agreed that an agent of a disclosed principal is not ordinarily a necessary party. The learned Counsel to the Appellants cited and relied on the case of J & J TECHNO (NIG.) LTD. vs. Y.H.Q.S. LTD. (2015) (SUPRA) in which it was held that a contract made by an agent of a disclosed principal acting within the scope of his authority binds the principal. The Appellants had argued that the parties sought to be joined, even though agents of a disclosed principal acted outside their authority by awarding a contract that was over N2,500,000.00 (Two Million Five Hundred Thousand Naira)

without ratification of the Executive Council of the State, reliance was placed on the case of OSIGWE vs. PSPLS MGT. CONSTRUCTION LTD. (2009) (SUPRA) which is not applicable in the present circumstances, I say so because looking at the claim of the Respondent as Plaintiff at the lower Court, it is for the payment of the unpaid balance of the money owed the Respondent by the Appellants emanating from the contract for the supply of class room, library and office furnitures supplied by the Respondent in favour of the Appellants. The issue to determine here therefore is whether the parties sought to be joined as 4th and 5th Defendants at the lower Court are necessary parties for an effectual and complete determination of the substantive matter without which the Court would not arrive at a final and proper decision, which would not entail subsequent or multiple actions from the same transaction. It is on record and not disputed by the Appellants that the contract in issue had already been awarded, page 77 of the records of appeal, there was an agreement entered into in that respect between the 1st Appellant and Respondent, pages 78 and 79 of the records and an

assurance letter acknowledging the execution of the contract, delivery of the goods as specified in the Bill of Quantity, part payment of N35,502,000.00 (Thirty Five Million Five Hundred and Two Thousand Naira) for the contract had been made leaving a balance sum of N18,805,800 (Eighteen Million, Eight Hundred and Five Thousand Eight Hundred Naira). In the letter of assurance, the 1st Appellant promised to pay the Respondent the outstanding balance with the approval and release of funds by the 1st Appellant, World Bank-Assisted.
The Respondent was assured of the payment of the outstanding debt on the project. From the correspondences highlighted above the issue of whether the parties to be joined acted outside their authorized powers or not, did not arise, also whether the parties sought to be joined exceeded their limit in terms of the contract awarded which is the crux of the substantive matter at the trial Court, could be determined without the parties sought to be joined who acted on behalf of the Appellants in the award, they were agents of a disclosed principal, which is not in dispute. Paragraph 5 of the letter of assurance of 27/3/2013 at

page 81 of the printed records stated thus:
“However, we enjoin you to be patience (sic) and be assured that the Ministry is working hard on it”.
It is clear from the above Paragraph (5) that the parties sought to be joined acted on behalf of the 1st Appellant.
In the present situation where the Respondent took out an action against a known principal, the principal is the proper party to have been sued and rightly so for anything done or omitted to be done by the agent, the disclosed principal is liable to take responsibility for the conduct of his agents. The law is that even where the principal is sued with his agent, the name of the agent would be struck out. The Respondent in this appeal would and is entitled to pursue his remedy as sought at the lower Court without the parties sought to be joined at the lower Court. In NIGER PROGRESS LIMITED vs. NORTH-EAST LINE CORPORATION (1989) LPELR – 1996 (SC); (1989) 3 NWLR (PT. 107) P. 68 his lordship Obaseki, JSC at P. 20, paragraphs B-C held that:
“A disclosed principal may sue or be sued on any contract made on his behalf and in respect of any money paid or received on

his behalf by his agent acting within the scope of his actual authority. DUKE OF NORFOLK vs. WORTHY (1808) 1 CAMP 337).
See, IKEDIFE & ANOR vs. OBIENU (1975) LPELR – 1471 (SC) P. 14, PARAGRAPHS D – F, AKALONU vs. MRS. S. O. OMOKARO (2002) LPELR–7131 (CA) PP. 16–18, PARAGRAPHS F – E, GTB PLC. vs. SOLOMON (2016) LPELR – 40342 (CA) PP. 15 – 16, PARAGRAPHS F-B, NWANKWO & ANOR vs. OKOLI & ANOR (2018) LPELR – 44053 PP. 35, PARAGRAPHS C-E and STANBIC IBTC BANK vs. LONGTERM GLOBAL CAPITAL LTD.& ORS. (2018) LPELR – 44053 (CA) PP. 106 – 107, PARARGRAPHS E-B.
Since the parties sought to be joined were agents of the 1st Appellant (the position which the Appellants accepted) the law is that the envisaged liability or otherwise of the agents cease where the principal is disclosed, it is the principal and not the agents who in the present circumstance are answerable for any act or omission of the agent, the act of such agent is taken to be that of his principal. It would be taken as if it was the principal that did what the agent did or failed to do, in other words, he who

does an act through another is deemed in law to have done it himself. Therefore, an action against a known principal and the correct party for the Respondent to have sued is the principal for an effectual determination of the dispute between them, the agents (the parties sought to be joined) need not be joined as defendants for the proper determination of the case. See, AKALONU vs. MR. S. O. OMOKARO (2002) (SUPRA), ALLIED TRADING CO. LTD. vs. GBN LINE (1985) 2 NWLR (PT 5) 74, NIGER PROGRESS LTD. vs. NORTH-EAST LINE CORPORATION (1989) (SUPRA) and QUA STEEL PRODUCTS LTD vs. BASSEY (1992) 5 NWLR (PT 239) 67.
There are situations where an agent would be liable for the acts of the principal, where an agent exceeds the limit or bounds of its authority as has been alleged in the present case. See, COTECNA INTERNATIONAL LIMITED vs. CHURCHGATE NIGERIA LIMITED & ANOR. (2010) LPELR – 897 (SC) but, the above case could be distinguished from the present case where the principal itself awarded the contract, part payment for the contract had been made without any dispute, the delay in the payment of the balance is what brought about the action that led to this

appeal. The 1st Appellant having made the part payment without the parties sought to be joined, the issue of payment of the balance could be effectually and effectively determined without joining the parties sought to be joined. Their presence in the action is not necessary, the parties at the lower Court are sufficient to determine the claim of the respondent. I am of the humble but, firm view that joining Mansur Suleiman and Pharm Raymond Tartius is of no use to the claim as rightly deposed to in Paragraph 3 (c) of the Respondent’s counter affidavit in opposition to the application for joinder at the trial Court, page 157 of the printed records.
The learned counsel to the Appellant had argued that the persons sought to be joined acted outside the scope of their authorities, that is ultra vires their powers. It is on record and not disputed that the contract had been awarded, executed and the 1st Appellant had made some payment leaving a balance yet to be paid as rightly submitted by the learned counsel to the Respondent, the act of the parties to be joined had been ratified by the part payment made of the contract sum without any question leaving

a balance of what is in contention before the trial Court, contrary to the submissions of the learned counsel to the Appellants that the parties sought to be joined cannot award contracts of such amount without ratification of the Executive Council of the State. The learned trial Judge was right to have held at page 178 of the judgment as follows:
“In the case at hand the parties sought to be joined by the defendant are agents worthy (sic) for a disclosed principal and already payment has deem (sic) made the only issue before the Court is the issue of the balance of payment.”
The above view cannot be faulted. The Appellants at this stage cannot rightly make out that the parties sought to be joined exceeded their power in the amount or limit of the contract awarded. It is noteworthy that the Appellants received or benefitted from the goods supplied in line with the contract (Exhibit A) and had no complaint then, until the payment of the outstanding balance that the issue of joinder of those who acted on their behalf arose. Part payment was made by the appellants who also accepted or received the goods. The Appellants cannot rightly at this

stage seek to join their two employees who signed the contract in course of their duties to raise the issue that conditions necessary for the award of the contract were not met when the contract has been awarded, delivery made and part payment also made by the same Appellants, it is late in the day.

The final order or decision of the trial Court in respect of the application by the Appellants to join Mansur Suleiman and Pharm Raymond Tartius as 4th and 5th Defendants is a dismissal of the application, having held that the parties sought to be joined are not necessary parties for an effectual and effective determination of the pending matter at the trial Court, that the applicants had no locus standi to have brought the application was only part of the reasons for the dismissal, which cannot be faulted.

The sole issue as reformulated is resolved against the appellants.

In the final analysis, the appeal is unmeritorious, it is hereby dismissed. The Ruling of the trial Court is hereby affirmed.
Parties to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered

by my learned brother Chidi Nwaoma Uwa JCA.

I am in agreement with my learned brother that it was unnecessary to join Mansur Suleiman and Pharm Raymond Tartius who were agents of the 1st Appellant in a claim by the Respondent for payment of the outstanding balance for the contract between the parties when the 1st Appellant did not dispute the contract and had even made a part payment on it.

For the detailed reasons in the judgment, I too dismiss the appeal for being unmeritorious. I affirm the ruling of the Court below.
I abide by all other orders including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

Hayatu Abdulmalik, Esq. Senior State Counsel II, Adamawa State, Ministry of Justice For Appellant(s)

C. Adikwu, Esq. For Respondent(s)