ECO BANK NIGERIA PLC V. MICHAEL C. METU & ORS
(2012)LCN/5734(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/OW/108/2011
RATIO
WORDS AND PHRASES: MEANING OF JOINDER
The Black’s Law Dictionary 8th Edition simply defines joinder at page 853 thereof as:
“The uniting of parties or claims in a single law suit.” PER HARUNA SIMON TSAMMANI, J.C.A.
WORDS AND PHRASES: DEFINITION OF SUBSTITUTION OF PARTIES
It defines “substitution of parties” as:
“The replacement of one litigant by another because of the first litigant’s death, incompetence, transfer of interest, or, when the litigant is a public official, separation from office. PER HARUNA SIMON TSAMMANI, J.C.A.
PROCEDURE: DISTINCTION BETWEEN JOINDER OF A PARTY AND SUBSTITUTION OF PARTIES
“It would be seen therefore that there is a distinction between joinder of a party or parties, and substitution of parties or parties. An application for joinder therefore is made to a court so as to join a person to a suit, who was not originally a party to the action, either as a plaintiff or a defendant. It simply means adding a new party to a suit as a plaintiff or defendant, to those already before the court. In an order of substitution, the suit may be properly constituted as regards the parties, but in the course of the proceedings, any of the parties may die, become bankrupt or there may be an assignment, transmission or devolution of the interest or liability involved in the pending suit by a party to the suit. In those circumstances, there will need for a substitution or alteration in the parties, as failure to do that, the action or claim will abate or become ineffectual. PER HARUNA SIMON TSAMMANI, J.C.A.
PROCEDURE: GUIDING PRINCIPLE FOR JOINDER OF PARTIES
The guiding principle for joinder of parties generally as enshrined in the various Rules of court is to allow a plaintiff to proceed against all defendants in the same suit, against whom he claims any relief or remedy, whether the action is brought jointly, severally or in the alternative. What is required in an application for joinder is for the court to ensure that the person sought to be joined is one whose presence is necessary for any effective and effectual determination of the issues or questions involved in the matter. In determining whether to join a person as a defendant in a suit, the court will have regard to the following issues;
(a) Whether it is possible for the court to adjudicate upon the cause of action set up by the plaintiff unless the person is added as a defendant;
(b) Whether the person is someone who ought to have been joined as a defendant in the first instance;
(c) Whether the cause of action or matter is liable to be defeated for non-joinder.
See BELLO v. I.N.E.C (supra) at Pg. 418 Paras C-E; U.B.N PLC v. OSAZF.E (supra) OGUNBULE v. ADEBANJO (2006) 2 NWLR (Pt.964) Pg. 319 and COTECNA INT’L LTD v. CHURCHGATE (NIG.) LTD (2010) 18 NWLR (Pt.1225) Pg.346 PER HARUNA SIMON TSAMMANI, J.C.A.
PROCEDURE: PURPOSE OF JOINDER OF PARTIES
The purpose of joinder of parties to an action is to enable the court to effectively and effectually adjudicate upon the issues involved in the matter’ That being so, the overriding consideration in determining an application for joinder are whether the issues that call for determination cannot be effectually and completely settled unless the party sought to be joined is made a party and that his interest may be irreparably prejudiced if he is not made a party. The main reason for joinder however is to avoid multiplicity of actions. See ADEFARASIN v. DAYEKH (2007) 11 NWLR (Pt.1044) Pg. 89; ONONYE v. ODITA (2008) 10 NWLR (Pt.1096); E.M.S.I. v. E.M.W.H. (2009) 7 NWLR (Pt. 1171) Pg. 510 and OGUNBULE v. ADEBANJO (supra) at Pg. 331-332 Paras. F-B. PER HARUNA SIMON TSAMMANI, J.C.A.
Before Their Lordships
UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria
MOJEED A. OWOADEJustice of The Court of Appeal of Nigeria
HARUNA S. TSAMMANIJustice of The Court of Appeal of Nigeria
Between
ECO BANK NIGERIA PLC.Appellant(s)
AND
1. MICHAEL C. METU Carrying on business in the name and style of Summit International Guest House
2. HALLMARK BANK PLC.
3. NIGERIA DEPOSIT INSURANCE CORPORATIONRespondent(s)
HARUNA SIMON TSAMMANI, J.C.A., (Delivering the Leading Judgment): This is an interlocutory appeal against the Ruling of P. O. Nnadi; J of the Imo State High Court. Suing at Owerri delivered on the 27th day of April, 2009 in Suit No. HOW/302/2003, wherein the learned trial judge granted leave to the 1st Respondent as Plaintiff to join the Appellant as Defendant in the said suit.
The 1st Respondent had taken out a Writ of Summons against the 2nd and 3rd Respondents dated the 04/11/2003 and filed the same day. He subsequently filed a Statement of Claim which was subsequently amended by leave of the trial court on the 25/9/2006. The said Amended Statement of Claim is dated the 06/11/2006 and filed the 22/11/2006. Therein, the 1st Respondent as Plaintiff claimed at paragraph 24, as follows:
(a) N50,000,000.00 (Fifty Million Naira) as damages.
(b) An Order compelling the defendants to discharge and to release the Plaintiffs Certificate of Occupancy and property title document No. 39 at page 39 in volume 294 of the Land Registry, Owerri over which the 1st Defendant created a legal mortgage.
In the course of the proceedings, the 1st Respondent again filed a motion on Notice dated the 24/11/2008 and filed the 25/11/2008, praying for the following reliefs:
“(1) AN ORDER court (sic) granting the Plaintiff/Applicant leave to further amend the Amended Writ of Summons’ the Amended Statement of Claim and other processes in this suit as follows:
(a) By substituting Hallmark Bank Plc with ECO BANK NIGERIA PLC (which has acquired Hallmark Bank Plc) as the 1st defendant in this suit.
(b) Consequent upon the substitution, by amending the Amended Writ of Summons and Amended Statement of Claim in the way and manner shown and/or underlined in the Amended Writ of Summons and the Amended Statement of Claim hereto.
2) AN ORDER of court deeming the further Amended Writ of Summons and the further Amended Statement of claim filed and served on the defendants as properly filed and served, necessary filing fees having been paid.
AND FOR SUCH further order or Orders as this Honourable Court may deem fit to make in the circumstances
The motion was supported by an affidavit of 6 paragraphs wherein he deposed to facts necessitating the application. The motion was opposed by the Appellant who filed a Notice of Preliminary Objection thereto. He also filed a Counter Affidavit of 10 paragraphs also in opposition to the motion. The learned trial judge took the preliminary objection together with the substantive motion. After considering the Written Addresses of counsel, the learned trial judge in a considered ruling dated the 27/4/2009, dismissed the preliminary objection and granted the reliefs sought by the 1st Respondent as the Applicant, pursuant to Order 11 Rules 3, 5, 15 and 34 of the Imo State High Court (Civil Procedure) Rules, 1988 (now Order 13 Rules 5, 6, 8, 17, 19, 29 and 31 of the Imo State High Court (Civil Procedure) Rules, 2008. Consequently, he ordered as follows:
1. That leave is hereby granted to the Plaintiff/Applicant to add and join ECOBANK NIGERIA PLC as a Defendant in this suit.
2. That leave is granted the Plaintiff/Applicant to Amend the Amended Writ of Summons and Amended Statement of Claim filed in this suit to reflect the name of ECO BANK NIGERIA PLC herein joined as a Defendant in this suit and cause same to be served on all the Defendants.
3. I make no order as to costs.
It is that Ruling that the Appellant is aggrieved by and has now filed this appeal. The Notice of Appeal was filed consequent upon the leave of this court made on the 1st day of February, 2011. The Notice of Appeal which was dated the 01/2/2011 was filed on the same day. It consists of three (3) Grounds of Appeal, which are hereunder reproduced, but without their particulars as follows:
1. The learned trial judge erred in law when he held that the 1st Respondent’s Motion on Notice dated 24th November, 2008 does not suffer from any defect.
2. The learned trial judge misdirected itself on the facts when he held that:
“From the averments in the Counter Affidavit of ECO BANK NIG, PLC, it admitted acquiring some assets of Hallmark Bank Plc but denied acquiring the entire assets and liabilities of Hallmark Bank Plc as alleged and claimed by the Plaintiff/Applicant. It follows that having admitted the acquisition of some of Hallmark Bank Plc, there is transmission of the interest of Hallmark Bank Plc in the acquired assets of Eco Bank Nig. Plc and that makes Eco bank Nig, Plc a necessary party to the present proceedings and whose presence is necessary for the effective and effectual determination of the issues in controversy including the extent of acquisition of the assets and liabilities of Hallmark Bank Nig. Plc, which issues the parties would be required to proffer evidence at the trial.”
3. The learned trial judge erred in law when he applied Order 111 Rules 3, 5, 15, and 34 of the Imo State High Court (Civil Procedure) Rules, 1988 in deciding the 1st Respondent’s application for leave to amend by substitution, to join the Appellant to the lower court and granted leave to the 1st Respondent to amend his Amended Writ of Summons and Amended statement of Claim to reflect the Appellant as a Defendant in the suit before the lower court.
As the Rules of this court demands, the parties filed their Written Briefs of Argument. The Appellant’s Brief of Argument was dated the 10/5/2011 and filed the same day. Therein, the Appellant nominated the following three (3) issues for determination:
1. Whether considering the law and materials before the lower court, the Learned Trial Judge rightly held that he 1st Respondent’s motion on Notice dated 24th November, 2008 does not suffer from any defect (Ground One)’
2. Whether considering the undisputed materials before the lower court and the law, the learned Trial Judge rightly held that Eco Bank Nigeria Plc, the Appellant, is a necessary party to the suit before the lower court (Ground Two).
3. Whether the application of the Rules of the lower court by the learned Trial Judge in ordering joinder of the Appellant to the suit not withstanding that the application before the lower court was for substitution of a party right and justified in law (Ground Three).
The 1st Respondent’s Brief of Argument is dated the 12/4/2012 and filed the 18/4/2012 vide motion on Notice filed the 18/4/12 and granted the 09/5/12. The 1st Respondent nominated only one issue for determination as follows:
“Whether the court below rightly granted the Application for Amendment, given the circumstances of the case.”
The 3rd Respondent was granted enlargement of time to file its brief of Argument. The said Brief of Argument is dated the 14/3/2012 and filed the 16/2/2012 but deemed filed the 23/2/2012 vide Motion on Notice filed the 16/2/2012. Therein, only one issue was formulated for determination by this court. It is:
“Whether the Appellant was a necessary party to be joined in SUIT No. HOW/302/2003.”
Upon being served, the Appellant filed Reply Briefs in response to the Respondents’ Briefs of arguments. The Appellant’s Reply to the 1st Respondent’s Brief of Argument is dated the 16/5/2012 and filed the 17/5/2012. It’s Reply to the 3rd Respondent’s Brief was dated the 05/3/2012 and filed the same day. It is instructive to note that the 2nd Respondent did not participate in this proceeding.
I have carefully studied the issues nominated by the parties. It is clear that the arguments raised on issues 1 and 3 are inter-related. In that respect, I shall consider those two issues together, while issue 2 will be considered on its own. This appeal will therefore be determined on the issues formulated by the Appellant. I now begin with issues 1 and 3.
On the issue (ISSUE ONE), it is the contention of learned counsel for the Appellant that, an amendment for the substitution of the names of a party can only arise where a competent order for substitution has been made by the court, and that where such order does not exist, the prayer for such amendment becomes premature and incompetent. He then referred to Order 13 Rule 18 of the Imo State High Court (Civil Procedure) Rules, 2008 to submit that, nowhere in the record is it shown that an order for substitution was made or granted by the lower court before the 1st Respondent filed his application for leave to amend the originating process. That the leave granted by the lower court and the Further Amended Statement of Claim filed by the 1st Respondent is therefore void as it affects the Appellant. He therefore submitted that considering the feature or defect stated above, the order of joinder in favour of the 1st Respondent is incompetent and defective. He further relied on the cases of MACFOY v. UAC LTD (1962) A.C. 152 at 160 and MADUKOLU v. NKEMDILIM (1962) 2 SCNLR PG. 342, to submit that, the jurisdiction of the court was therefore wrongly exercised in granting the application or order.
Learned counsel for the Appellant cited the cases of OKORODUDU v. OKOROMADU (1977) 3 S.C. Pg.21 and NTUKS & 9 ORS v. N.P.A (2007) 5-6 S.C Pg. 1 to contend that based on his submissions above, the Respondent’s Motion on Notice dated 24/11/2008 amounted to an abuse of court process, because it was an improper use of judicial process to the irritation, harassment and annoyance of the Appellant. We were then urged to resolve this issue in favour of the Appellant.
The 3rd issue raised by the Appellant is, whether the Application of the Rules of the lower court by the learned trial judge in ordering a joinder of the Appellant not withstanding that the application before the lower court was for substitution of a party was right in law. It was then submitted that, the law is that, a judge is bound by the claims of parties and must restrict himself within the ambit of the claims. He then relied on the cases of AMADI v. A.G FEDERATION v. A.I.C LTD (2000) S.C (Pt. 1) Pg. 175; DUMEZ (NIG.) LTD v. NWAKHOBIA & ORS (2008) 12 S.C (Pt.III) Pg. 142 at 162 and ATIVIE v. KABEL METAL (NIG) LTD (2008) 5-6 S.C (Pt. II) Pg. 47 at 67, to submit that the Ruling of the trial court is therefore a clear departure from the prayer sought by the 1st Respondent. It was further submitted that, the provisions of order 11 Rules 3, 5, 15 and 34 of the Imo State High Court (Civil Procedure) Rules, 1988 upon which the learned trial judge based his decision, cannot justify the orders made by the trial court considering the circumstances of the case.
It is the contention of learned counsel for the 1st Respondent that, the Appellant’s contention that the 1st Respondent’s application for substitution and amendment at the court below is incompetent is manifestly misconceived. That there were prayers for substitution and amendment of the originating process to accommodate the substitution of the Appellant. That in any case, it would not matter that the 1st Respondent had prayed for amendment by way of substitution instead of application for joinder. He further contended that rules of court are a guide in the administration of justice and not meant to impede the wheel of justice or enslave the court. The cases of U.T.C v. PAMOTEI (1989) 2 NWLR (Pt. 103) Pg. 244 at 296 and OMABUWA v. OWHOFATSHO (2006) 5 NWLR (Pt. 972) Pg. 40 at 61 – 62 Paras. H-A, were cited in support.
Learned counsel for the 1st Respondent further contended that, the grant of the application was at the discretion of the lower court and which discretion the court properly exercised in granting the application. That the joinder of the Appellant as ordered by the lower court, instead of substitution prayed for, has not occasioned any miscarriage of justice to the Appellant.
It is also the contention of learned counsel for the 1st Respondent that, the Appellants submission that the 1st Respondent’s application was an abuse of court process is misplaced. That there is nothing to suggest that the application was brought in bad faith so as to irritate, annoy or vex the Appellant. That the lower court having exercised its discretion, this court would not set aside the exercise of such discretion of the lower court, simply because, it would have taken a different view if it were in the place of the lower court. The cases of IKIKE v. EDJERODE (2001) 18 NWLR (Pt. 745) Pg.446; OYEGUN v. NZIRIBE (2010) 7 NWLR (Pt. 1194) Pg. 577 and UNIVERSITY OF LAGOS v. AIGORO (1985) 1 NWLR (Pt. 1) Pg. 143 were cited in urging us to disregard the arguments of the Appellant.
Learned counsel for the 3rd Respondent also argued in a similar vein. He submitted that, an amendment can be made at any stage of the proceedings. That the Application for joinder or substitution of ECO BANK NIG. PLC necessitated the amendment of the Writ of Summons and other court processes as provided in Order 11 Rule 15 of the Imo State High Court (Civil procedure) Rules. That the contention of the Appellant that the joinder of the Appellant in the suit rather than substituting the Appellant for HALLMARK BANK PLC as prayed by the 1st Respondent was wrong, is frivolous, as the Applicant has not complained in the Notice of Appeal that the said order for joinder has occasioned any miscarriage of justice to him.
It is also the submission of learned counsel for the 3rd Respondent that, the lower court had the jurisdiction to summarily or even suo motu join the Appellant in the suit. He then relied on the provision of Order 11 Rule 16 of the Imo State High Court (Civil Procedure) Rules (supra) and the case of OSUNRINDE v. AJAMOGUN (supra) at Pg. 171 Para. C. in support. He accordingly urged us to resolve this issue in favour of the Respondents and to dismiss the Appeal as lacking in merit.
Replying to the 1st Respondent’s arguments, learned counsel for the Appellant submitted that, the substance of the Appellant’s extant Appeal is inter alia, that the order of joinder is not justifiable in law in view of the fact that the prayer sought by the 1st Respondent was for an order for joinder. That based on the law that a court can only grant to a party what he seeks, the lower court therefore erred in granting an order of joinder when the prayer sought for by the 1st Respondent was for substitution. He relied on the cases of S.P.D.C. (NIG) LTD v. KATAD (NIG) LTD (2005) All FWLR (Pt. 263) Pg. 679; APATIRA v. L.I.L.G.C (2006) 17 NWLR (Pt.1007) Pg. 46; AKINBONI v. AKINBONI (2002) 5 NWLR (Pt. 761) Pg.564 at 578-579; EKPEYONG v. NYONG (1975) 2 S.C. Pg. 71 and OMOTUNDE v. OMOTUNDE (2001) 9 NWLR (Pt. 718) Pg.25.
Learned Appellant’s counsel further relied on the cases of G.M.O.N & SONS CO. LTD v. AKPUTA (2010) 9 NWLR (Pt. 1200) Pg. 443 at 473; OWNER OF THE MV ARABELLA v. N.A.I.C (2008) 11 NWLR (Pt. 1097) Pg. 182 and MALGWI v. GADZAMA (2000) 11 NWLR (Pt. 678) pg. 258, to submit that Rules of court are in the nature of subsidiary legislation by virtue of Section 18 of the Interpretation Act, Cap. 123 Laws of the Federal Republic of Nigeria, 2004 and therefore must be obeyed; they having the force of law.
In response to the arguments of the 3rd Respondent, the Appellant contended that, it is undisputed that, the 1st Respondent’s application before the lower court is for an order of substitution of the Appellant for the 2nd Respondent and not for the inclusion or addition of the Appellant as another Defendant.
The crux of the Appellant’s complaint here is that the lower court granted the 1st Respondent a relief he did not ask for. That the 1st Respondent sought that the lower court make an order joining the Appellant in the suit, whereas the prayer of the 1st Respondent was for the Appellant to be substituted for the 2nd Respondent (Hallmark Bank Plc). It would be helpful if the specific prayer of the 1st Respondent under consideration is reproduced. The prayer of the 1st Respondent on the motion paper is dated the 24/11/2008 and filed the 25/11/2008, specifically is for:
“1. All ORDER of court granting the plaintiff/applicant leave to further amend the Amended Writ of Summons, the Amended Statement of Claim and other processes in this suit as follow:
(a) By substituting Hallmark Bank Plc with ECO BANK NIGERH PLC (which has acquired Hallmark Bank Plc) as the 1st defendant in this suit”
The substantive prayer (a) of the 1st Respondent in the motion therefore sought for an order of substitution. However, after granting the motion, the learned trial judge made an order as follows:
1. That leave is granted to the Plaintiff/Applicant to add and join ECO BANK PLC herein joined as a Defendant in this suit.”
It would be seen clearly that the order made by the learned trial judge was that of joinder of the Appellant ECO BANK (NIG.) PLC as a party to the suit. The prayer of the 1st Respondent in the motion paper is for the substitution of the 2nd Respondent (Hallmark Bank Plc) as the Defendant in the suit. The Black’s Law Dictionary 8th Edition simply defines joinder at page 853 thereof as:
“The uniting of parties or claims in a single law suit.”
It defines “substitution of parties” as:
“The replacement of one litigant by another because of the first litigant’s death, incompetence, transfer of interest, or, when the litigant is a public official, separation from office.”It would be seen therefore that there is a distinction between joinder of a party or parties, and substitution of parties or parties. An application for joinder therefore is made to a court so as to join a person to a suit, who was not originally a party to the action, either as a plaintiff or a defendant. It simply means adding a new party to a suit as a plaintiff or defendant, to those already before the court. In an order of substitution, the suit may be properly constituted as regards the parties, but in the course of the proceedings, any of the parties may die, become bankrupt or there may be an assignment, transmission or devolution of the interest or liability involved in the pending suit by a party to the suit. In those circumstances, there will need for a substitution or alteration in the parties, as failure to do that, the action or claim will abate or become ineffectual.
Under the Imo State High Court (Civil Procedure) Rules, 1988 the two situations are provided for under Order 11 Rules 5(1) and 16; and Order 11 Rule 34(1) respectively. While Order 11 Rules 5(1) deals with joinder of parties either as plaintiffs or defendants, order 11 Rule 34 deal with substitution of parties. Order 11 Rule 16, deals with the method for bringing the application either to add, strike out or substitute a party. It would be seen therefore that a prayer for addition of a party to a suit is distinct from that seeking for an order of substitution. The incidents of the two, and the rules for their application differ.After considering the motion of the 1st Respondent before the lower court and the Ruling of the learned trial judge thereon, I am in agreement with the contention of learned counsel for the Appellant that what the trial court granted the 1st Respondent is not what he asked for.
The issue now is whether this action of the lower court will render the order granted by him a nullity. I think the answer to this issue can only be found in the Ruling of the lower court and the provisions of the Imo State High Court (Civil Procedure) Rules, 1988 being the applicable Rules when the 1st Respondent’s motion was filed.
Now, the learned trial judge had found at page 85 of the Record of Appeal as follows:
“From the averments in the counter affidavit of Eco Bank Nig, Plc, it admitted acquiring some assets of Hallmark Bank Plc but denied acquiring the entire assets and liabilities of the Hallmark Bank Plc as alleged and claimed by the Plaintiff/Applicant. It follows that having admitted the acquisition of some of the assets of Hallmark Bank Plc, there is transmission of the interest of Hallmark Bank Plc in the acquired assets of Eco Bank Nig. Plc and that makes Eco Bank Nig, Plc a necessary party to the present proceedings and whose presence is necessary for the effective and effectual determination of the issues in controversy including the extent of the acquisition of the assets and liabilities of Hallmark Bank Plc by Eco Bank Nig Plc, which issues the parties would be required to proffer evidence at the trial”
The learned trial judge then concluded with these words:
“In conclusion, this court finds that there is merit in this motion on notice and shall as the justice of this case demands, proceed to apply the provision of order 11 Rules 3, 5, 15 and 34 of the Imo State High Court (Civil Procedure) Rules, 1988…. in making the following order:”
To start with, the reference to Order 11 Rule 34 was an error on the part of the learned trial judge. The said Rule 34 of Order 11 of the Imo State High Court Rules (supra) is inconsistent with the order(s) made by the court. It is rather obvious that the learned trial judge used his discretion to make an order of joinder of the Appellant as a defendant in the suit rather than make an order of substitution as prayed by the 1st Respondent. The learned trial judge stated that he made the order in the interest of justice. I think the learned trial judge was influenced by the affidavit evidence produced before him by the parties. The issue as I stated earlier is whether the learned trial judge had the power to apply any discretion in the matter.
The principal provision on joinder of parties under the Imo State High Court (Civil Procedure) Rules, 1988 is Order 11 Rule 5(1). It stipulates that:
“5(1) If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may likely be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiff or defendants in the suit, as the case may be…”
Though most of the decided cases on joinder of parties deal with situations where the parties to the action initiated the proceeding for joinder, it is clear from the words “if it shall appear to the court….”, the Rule of the Imo State High Court cited above, casts the burden of initiating same on the court. That being so, the power of a trial court to join a person whether as a plaintiff or as a defendant, as envisaged by Order 11 Rule 5(1) of the Imo State High Court (Civil Procedure) Rules (supra) is entirely discretionary. See U.B.N PLC v. OSAZEE (2011) 7 NWLR (Pt. 1246) Pg.293; BELLO v. I.N.E.C (2010) 8 NWLR (Pt. 1196) P9.342 and IN. RE: YAR’ADUA (2011) 7 NWLR (Pt. 1277) Pg. 567. In the instant case, it is agreed that the 1st Respondent’s motion at the lower court was for substitution. It is also true that the learned trial, considering the facts before him as deposed in the affidavits of the parties decided to order for joinder rather than substitution. It has not been argued by the Appellant that the learned trial judge applied his discretion wrongly. It is therefore not the case of the trial court granting to the 1st Respondent what he did not ask for as argued by the Appellant. It is a case of the trial court exercising its discretion, in the interest of justice, as stated by the learned trial judge. This issue is therefore resolved in favour of the Respondents.
I now come to the 2nd issue which is, whether considering the undisputed materials before lower court and the law, the learned trial judge rightly held that Eco bank Nigeria Plc, the Appellant, is a necessary party to the suit before the lower court. Learned counsel for the Appellant began with a definition of a necessary party as defined in the cases of IYIMOGA v. GOV. PLATEAU STATE (1994) 8 NWLR (Pt. 360) Pg. 73; GREEN v. GREEN (1987) 3 NWLR (Pt. 61) Pg. 480 at 493 and BIYU v. ALIYU (2006) 8 NWLR (Pt. 981) Pg. 1 at 35; to submit that there must be some nexus between the defendant and the act complained of, He also reproduced the provisions of Section 6(6) of the 1999 Constitution of the Federal Republic of Nigeria and the depositions of the Appellant at Paragraphs 5(a) to (e) of the Appellant’s Counter Affidavit in pages 55-56 of the Record of Appeal, to further submit that the evidence presented before the lower court by the parties, show clearly that, the Appellant has no interest in the subject matter of the suit before the lower court. The cases of NWOSU v. IMO STATE ENVIRONMENTAL SANITATION AUTHORTTY (1990) 2 NWLR (Pt. 135) Pg. 688; I. K. MARTINS (NIG) LTD v. U.P.L (1992) 1 NWLR (Pt. 217) at 322 and OKOEBOR v. POLICE COUNCIL & ORS (2003) 5 S.C Pg. 11 at 31-32 were also cited in support.
It is also the submission of the Appellant that, it is undisputed that the Appellant merely acquired some selected assets of Hallmark Bank Plc from Nigeria Deposit Insurance Corporation (N.D.I.C) and the Central Bank of Nigeria (C.B.N) which excludes the present action, and that this fact was not denied by either the N.D.I.C or the C.B.N, who are parties to the action. That the material evidence before the lower court is that the Appellant has no interest in the subject matter of the suit, and therefore there is no nexus between the Appellant and the claim of the 1st Respondent. He accordingly submitted that the presence of the Appellant is not needed to effectively determine the matter. He then cited the cases of DOKUBO-ASARI v. F.R.N (2007) 5-6 S.C Pg. 150 at 179 and A.G; OF ANAMBRA STATE v. OKEKE (2002) 5 S.C (Pt. II) Pg. 58, to also submit that, the claim of the Appellant that he did not acquire the subject matter of this suit from the 2nd Respondent was never challenged by the 2nd and 3rd Respondents nor contradicted by the 1st Respondent, and therefore the trial court erred in the ruling that the Appellant was a necessary party on the ground of transmission of interest. We were then urged to resolve this issue in favour of the Appellant.
It is the contention of learned counsel for the 1st Respondent that, the court below rightly granted the application, in view of the circumstance of the case. That the 1st Respondent’s action against the 2nd Respondent anchored on a banker and customer relationship in the course of which the 2nd Respondent became distressed and the 3rd Respondent began the process of its liquidation, which led to the joinder of the 3rd Respondent in the dispute between the 1st Respondent and the 2nd Respondent. That in the course of the action, it was discovered that the Appellant had acquired the assets of the distressed 2nd Respondent, and therefore it became necessary to bring in the Appellant as a necessary party who would be affected by the outcome of the action. He then relied on the case of OSURINDE v. AJAMOGUN (1992) 6 NWLR (Pt. 246) Pg. 156 at 170-171 Paras. B-E, and also reproduced Paragraph 4(9) of the Further Amended Statement of Claim, in support. Reference was also made to Paragraph 3 of the 3rd Respondent’s statement of defence wherein the 3rd Respondent pleaded that the assets of the 2nd Respondent had been acquired by the Appellant.
Learned counsel for the 1st Respondent further submitted that, in view of the deposition of the Appellant at Paragraph 5(d) of this Counter affidavit and that of the 3rd Respondent whom the Appellant admitted was a party to the transaction by which the Appellant purchased and assumed selected assets of the 2nd Respondent, it is clear that there is a common ground that the Appellant had acquired assets of the 2nd Respondent. That in view of the deposition of the 1st Respondent at Paragraph 4 of the supporting affidavit to the motion, the appellant had contended that it only acquired selected assets of the 2nd Respondent, the question whether or not the selected assets of the 2nd Respondent acquired by the Appellant includes the subject matter of this action, is an issue which the lower court could not determine by way of interlocutory application. That this is moreso as the extent of the assets of the 2nd Respondent acquired by the Appellant has not been demonstrated in the counter affidavit of the Appellant, and it would thus be premature and speculative of the lower court to act on the mere ipse dixit of the Appellant, and conclude that the assets of the 2nd Respondent acquired by the Appellant excludes the subject matter within this suit. The cases of ODIVE v. OBOR (1974) 2 S.C Pg. 18 at 26 lines 10-15; KOTOYE v. C.B.N
(1989) NWLR (Pt. 98) Pg. 419; ALCATEL KABEL METAL NIG. PLC v. OJUEGBELE (2003) (Pt. 805) Pg. 429 and OBEYA MEMORIAL HOSPITAL v. A.G; FEDERATION (1987) 3 NWLR (Pt. 60) Pg.325 were cited in support.
Learned counsel for the 1st Respondent therefore submitted that, the lower court was right in granting the application when he was confronted with issues which could only be resolved with finality by abduction of oral and documentary evidence at the trial, particularly, when it was obvious from the admission of the Appellant that it acquired selected assets of the 2nd Respondent in which case, there is a transmission of interest from the 2nd Respondent to the Appellant. Furthermore, that by order 13 Rule 16(2) and (3) of the Imo State High Court (Civil Procedure) Rules, 2008, the lower court is enjoined to ensure joinder including substitution of parties whose interests might be affected by the outcome of the proceedings and in the absence of whom the case cannot be fairly dealt with. He then cited the cases of AFOLAYAN v. OGUNRINDE (1990) 1 NWLR (Pt. 127) Pg.369 at 396 Paras. C-D; OLAGUNJU v. YAHAYA (1998) 3 NWLR (Pt.542) Pg. 501 at 513 Paras. C-D; ADELEKE v. OYO STATE HOUSE OF ASSEMBLY (2006) 10 NWLR (Pt. 987) Pg. 81 and OSUNRINDE v. AJAMOGUN (supra) at Pg. 171 Paras. B-E to further submit that on the principles stated in the above cited cases, the decision of the lower court cannot be faulted.
The argument of learned counsel for the 3rd Respondent is similar to that of the 1st Respondent. Thus in arguing this issue learned counsel referred to paragraphs 3, 4, and 5 of the Affidavit and Paragraph 4, 5(a), (b), (d) and (e) of the Counter Affidavit of the Appellant to submit that, from those depositions issues had been joined, and indeed had been admitted by the Appellant that it acquired assets of Hallmark Bank Plc, but denied acquiring the entire assets and liabilities of Hallmark Bank Plc as claimed by the 1st Respondent. That having admitted the acquisition of some of the assets and liabilities of Hallmark Bank Plc (2nd Respondent), the presence of the Appellant ECO BANK (NIG.) PLC becomes necessary for the effective and effectual determination of the issues in controversy, including the extent of the acquisition of the assets and liabilities of the Hallmark Bank Plc by ECO BANK (NIG) PLC, which are issues the parties would be required to proffer evidence at the hearing of the suit. He relied on the cases of ADELEKE v. OYO STATE HOUSE OF ASSEMBLY (2006) 10 NWLR (Pt. 987) Pg. 81 Paras. B-D and OSUNRINDE v. AJAMOGUN (1992) 6 NWLR (Pt. 246) Pg. 156 at Pg. 171 Paras. B-E per Ogundare; JSC in urging us to hold that the Appellant is a necessary party and to dismiss the appeal.
The answer of the Appellant in his Reply Brief to the 1st Respondent’s Brief of Argument is a virtual recapitulation of his argument in his main brief of argument. His response to the 3rd Respondent’s arguments on this issue is also a repeat of the arguments he had proffered in his main brief of argument. I therefore need not summarize those arguments here, as they will not add any value to the determination of this appeal.
Now, I had stated earlier in the course of this judgment that, it is Order 11 Rule 5(1) of the Imo State High Court (Civil Procedure) Rules, 1988 that governed the Application before the lower court. I had also reproduced the said Order 11 Rule 5(1) while considering the first issue for determination in this appeal. What is paramount here is that, a court may exercise its discretion to order for joinder so as to ensure that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result of the litigation between the existing parties, and who have not been made parties to the suit. In making the order, it is my view that the court should be guided by the provisions of Order 11 Rules 1 and 3 of the Imo State High Court (Civil Procedure) Rules (supra). For the purposes of this appeal, it is Rule 3 of the said Order 11 of the High Court Rules, that is germane. In making an order for joinder of a defendant therefore, the trial court must ensure that, effect in given to the provision of Order 11 Rule 3 of the Imo State High Court (Civil Procedure) Rules (supra). Thus, all persons may be joined as defendants against whom the right to any relief is alleged to exist; whether joined, severally or in the alternative.
The guiding principle for joinder of parties generally as enshrined in the various Rules of court is to allow a plaintiff to proceed against all defendants in the same suit, against whom he claims any relief or remedy, whether the action is brought jointly, severally or in the alternative. What is required in an application for joinder is for the court to ensure that the person sought to be joined is one whose presence is necessary for any effective and effectual determination of the issues or questions involved in the matter. In determining whether to join a person as a defendant in a suit, the court will have regard to the following issues;
(a) Whether it is possible for the court to adjudicate upon the cause of action set up by the plaintiff unless the person is added as a defendant;
(b) Whether the person is someone who ought to have been joined as a defendant in the first instance;
(c) Whether the cause of action or matter is liable to be defeated for non-joinder.
See BELLO v. I.N.E.C (supra) at Pg. 418 Paras C-E; U.B.N PLC v. OSAZF.E (supra) OGUNBULE v. ADEBANJO (2006) 2 NWLR (Pt.964) Pg. 319 and COTECNA INT’L LTD v. CHURCHGATE (NIG.) LTD (2010) 18 NWLR (Pt.1225) Pg.346
The purpose of joinder of parties to an action is to enable the court to effectively and effectually adjudicate upon the issues involved in the matter’ That being so, the overriding consideration in determining an application for joinder are whether the issues that call for determination cannot be effectually and completely settled unless the party sought to be joined is made a party and that his interest may be irreparably prejudiced if he is not made a party. The main reason for joinder however is to avoid multiplicity of actions. See ADEFARASIN v. DAYEKH (2007) 11 NWLR (Pt.1044) Pg. 89; ONONYE v. ODITA (2008) 10 NWLR (Pt.1096); E.M.S.I. v. E.M.W.H. (2009) 7 NWLR (Pt. 1171) Pg. 510 and OGUNBULE v. ADEBANJO (supra) at Pg. 331-332 Paras. F-B.
In order to determine whether a party is a proper defendant in an action or a suit, all the court needs to do is to examine the claim of the plaintiff before the court. In other words, it is the plaintiff’s claim that gives him the right to initiate the action or to seek to join a defendant. See BELLO v. I.N.E.C (supra) at Pg. 416 – 417 Paras H-B.In the instant case, the 1st Respondent as plaintiff had pleaded his claim against the Appellant at paragraphs 4 and 4(a) of the Further Amended Statement of claim as follows:
“4. The Hallmark Bank Plc (hereinafter simply referred to as “The Bank,,) became distressed owing to its inability to meet up with the N25 million (Twenty Five Million Naira) capital base as stipulated by the Central Bank of Nigeria which situation led to the 2nd defendant exercising its statutory duty in respect of the bank’s distress.
4(a) The 1st defendsnt later acquired the bank, its assets and liabilities, including this suit, in a process of acquisition approved by the Central Bank of Nigeria”
It should be pointed out that the 1st defendant referred to in paragraph 4(a) of the Further Amended Statement of Claim reproduced above is the Appellant herein. In supporting his motion, the 1st Respondent also deposed at paragraphs 3, 4, 5(a), (b), (c) and (d) of his Affidavit as follows:
“3. That as a result of the inability of Hallmark Bank Plc to meet up with the recent recapitalization exercise in the banking industry, its operational banking license was revoked and could no longer transact its business.
4. That subsequently, Hallmark Bank Plc was acquired by Eco Bank Plc together with the assets and liabilities of Hallmark Bank Plc, including this action. I was so informed by the Plaintiff/Applicant which I verily believe to be true.
5. That I was also informed by S. N. Nnadi; Esq. of D. C. Denwigwe & Associates Plaintiff/Applicant’s solicitor and I verily believe him:
(a) That it has become necessary in view of the foregoing, to apply to this court to substitute Hallmark Bank Plc with Eco Bank Plc as the 1st defendant in this suit.
(b) That the substitution has also necessitated further Amendment of the Writ of Summons and the Amended Statement of Claim in the way and manner shown and/or underlined in the Further Amended Writ of Summons and the Further Statement of Claim Exhibits “A” and “B” hereto.
(c) That the defendants/party sought to be substituted will not be prejudiced by this application.
(d) That the purpose of the amendment is to enable the court determine the real issues in controversy between the parties.
The motion seeking to substitute Hallmark Bank Plc for Eco Bank Plc, I believe was informed by the pleading of the 3rd Respondent at paragraph 3 of the Statement of Defence, wherein it was averred that, the 1st Defendant (Hallmark Bank Plc) was taken over by Eco Bank (Appellant), which fact was pleaded is public and common knowledge. In view of those depositions and averments, the Appellant filed Counter Affidavit to the 1st Respondent’s motion seeking to join it to the action. Therein, it was deposed at paragraphs 5(a), (b), (c), (d) and (e) as follows:
“5 . . . . . . . . . . .
(a) It is not correct that Hallmark Bank Plc was acquired by Eco Bank Nigeria Plc.
(b) It is also false that Eco bank Nigeria Plc has acquired all assets and liabilities of Hallmark Bank Plc the 1st Defendant.
(c) That Eco bank Nigeria Plc never acquired this action nor did it acquire any mater related, incidental or being part of this action and has nothing to do with this action.
(d) That though under the purchase and assumption transaction between Eco Bank Nigeria Plc, The Central Bank of Nigeria and Nigerian (sic) Deposit Insurance Corporation (NDIC), Eco bank purchased some selected assets of Hallmark Bank Plc (in liquidation) it did not purchase this action or any claim, assets, liabilities or benefits associated thereto and that the claim of the plaintiff herein that it purchased some is false.
(e) That in truth, Eco Bank Nigeria Plc did not purchase all the assets and liabilities of Hallmark Bank Plc and that Hallmark Bank Plc is still in existence though presently under the liquidation of the 2nd Defendant/Respondent.
It is obvious from the pleading of the 1st Respondent at paragraphs 4 and 4(a) of the Further Amended Statement of Claim and paragraphs 3, 4, and 5 of his Affidavit in support of the motion, that he sought to join the Appellant in the action due to the Appellant’s acquisition of the assets and liabilities of Hallmark Bank Plc (the 1st Defendant in the original writ). By the depositions of the Appellant in its counter-affidavit it deposed to facts which are consistent to its total denial of the 1st Respondent’s claim against it.
It is the law that, it is the prerogative of a plaintiff to determine the defendants in a suit. See BELLO v. I.N.E.C (supra) at Pg. 416. It is the pleading of the plaintiff that will determine the liability of such a defendant or each defendant. Whether or not the claims of the plaintiff will be established is a matter to be determined at the trial. I am therefore of the view that the issues raised by the Appellant in the Counter-Affidavit are facts that needed to be pleaded in his defence at the trial. He will then lead evidence at the trial to establish same, but they cannot be determined by way of affidavit evidence. I therefore agree with the Respondents that the issues raised by the Appellant cannot be determined at an interlocutory application. They can only enure to the Appellant as his defence at the trial.
I am therefore of the view that the learned trial judge rightly exercised his discretion in granting the prayer joining the Appellant in view of facts before him. This issue is therefore resolved in favour of the Respondents.
Having resolved all the issues in favour of the Respondents, the appeal therefore lacks merit. It is accordingly dismissed. The ruling and orders made by the learned trial judge on the 1st day of February, 2011 in Suit No. HOW/302/2003 is hereby affirmed.
I award thirty thousand naira (N30,000.00) as cost against the Appellant in favour of each of the 1st and 3rd Respondents.
UWANI MUSA ABBA AJI, J.C.A., PRESIDING: I have had the opportunity of reading in draft the lead judgment of my learned brother, H. S. Tsammani, JCA.
I am entirely in agreement with the reasons therein and the conclusion that the appeal is bereft of any merit.
Order 11 Rule 5(1) of the Imo State High Court (Civil Procedures) Rules 1988, governs the application for joinder before the Lower court. It provides as follows:
5(1) “If it shall appear to the Court at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit or who may likely be affected by the result, have not been made parties, the Court may adjourn the hearing of the suit to a future day, to be fixed by the Court and direct that such persons shall be made either Plaintiff or defendants in the suit, as the case may be…”
From a clear construction of this Rule, it is clear that the Court has a discretion or power to join person whether as a plaintiff or as a defendant who have not been joined in the suit and have an interest in the matter. See UBN Plc vs. Ozazee (2011) 7 NWLR (Pt.1246) 293; Bello vs. INEC (2010) 8 NWLR (Pt.1196) 342.
In the instant case, the 1st Respondent’s action against the 2nd Respondent was anchored on a banker and customer relationship in the cause of which the 2nd Respondent became distressed and the 3rd Respondent began the process of its liquidation. It was in the course of this action that it was discovered that the Appellant had acquired the assets of the distressed 2nd Respondent and therefore it becomes necessary to bring the Appellant as a necessary party who would be affected by the outcome of the case. In the circumstances, the Lower Court exercised its discretion judicially and judiciously in joining the Appellant as a necessary party. It was not a wrongful exercise of discretion as contended by the Appellant.
Paragraph 4(9) of the further amended statement of claim in support and paragraph 3 of the 3rd Respondents statement of defence pleaded the fact that the assets of the 2nd Respondent had been acquired by the Appellant. This fact is not denied by the Appellant because it was a party in the transaction by which the Appellant purchased the selected assets of the 2nd Respondent. In the circumstances therefore, the question whether or not the Appellant had only acquired selected assets of the 2nd Respondent and whether or not the selected assets includes the subject matter of this action is an issue that could only be determined at the hearing of the substantive suit and not at the hearing for application for joinder, more so when those selected assets were not demonstrated in the counter affidavit of the Appellant. See Kotoye vs. CBN (1989) 1 NWLR (PT 98) 419: Alcatel Kabekl Metal (Nig.) Plc vs. Ojuegbeke (2003) 2 (PT 805) 429: and Obeya. Memorial Hospital vs. A. G. Federation (1987) 3 NWLR (PT 60) 325.
I therefore agree with the Learned Counsel for the Respondents that the Lower Court was right in granting the application because by the Rules of Court, the Lower Court is enjoined to ensure joinder including substitution of parties whose interest might be affected by the outcome of the proceedings and in the absence of whom the case cannot be fairly dealt with when it was obvious from the admission of the Appellant that it acquired selected assets of the 2nd Respondent.
In other words, the Appellant having admitted that the it acquired selected assets of the 2nd Respondent but denied acquiring the entire assets and liabilities, the presence of the Appellant becomes necessary for the effective and effectual determination of the issues in controversy including the extent of the acquisition of the assets and liabilities which are issues the parties would be required to proffer evidence at the trial. See Adeleke vs. Oyo State House of Assembly (2006) 10 NWLR (Pt.987) 81; Ogunrinde vs. Ajamogun (1992) 6 NWLR (PT 246) 156.
The guiding principles for joinder of parties generally as allowed by the Rules of Court is to allow a Plaintiff to proceed against all defendants in the same suit against whom he claims any relief or remedy whether the action is brought jointly severally or in the alternative. The Appellant is therefore a necessary party.
It is for this reason and the more detailed reasons in the judgment of my learned brother that I find the appeal unmeritorious. It is accordingly dismissed. The ruling of the learned trial Judge delivered on the 1st February, 2011 is hereby affirmed.
I abide by the order as to costs.
MOJEED A. OWOADE, J.C.A.: I read in advance the Judgment delivered by my learned brother HARUNA S. TSAMMANI, JCA. I agree with the reasoning and conclusion and I abide with the consequential orders.
Appearances
C.V.C. Ihekweazu; Esq with C.C. Obiefule; EsqFor Appellant
AND
O.S. Akinola; Esq N. V. Nwanwa (Mrs)
K. C. Nwufo; Esq with M. I. Njoku; EsqFor Respondent
