VERALAM HOLDINGS LIMITED v. GALBA LIMITED & ANOR (2014)

VERALAM HOLDINGS LIMITED v. GALBA LIMITED & ANOR

(2014)LCN/6812(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of January, 2014

CA/PH/381/2007

RATIO

WORDS AND PHRASES: CAUSE OF ACTION

The cause of action simply means the set of facts the plaintiff needs and must prove in order to be entitled to the reliefs claimed against the defendants. It is the set of facts pleaded in the statement of claim that will support the claim of the plaintiff against the defendant. see BELLO v. A.G. OYO STATE (1986) 5 NWLR [pt.45] 828 at 876 A; EGBE v. ADEFARASIN (1987) 1 NWLR [pt.47] 1 at 202; THOMAS v. OLUFOSOYE (1986) 1 NWLR [pt.18] 669 at 682 F; OSHOBOJA v. AMUDA (1992) NWLR [pt.250] 690. Per EJEMBI EKO, J.C.A.

RATIONALE FOR STRIKING OUT APPEAL NOT PROPERLY CONSTITUTED

The rationale for striking out appeal or suit not properly constituted is the general rule of law, anchored in the principle of audi alteram partem, that no person is to be adversely affected by a judgment in an action to which he was not made a party, because of the injustice in deciding an issue against an issue against him in his absence:

EKPOKE v. USILO (1978) 6 7 SC 187; PERMANENT SECRETARY, MINISTRY OF WORKS, KWARA STATE v. BALOGUN (supra) at 59. Per EJEMBI EKO, J.C.A.

ORDER TO BE MADE WHEN THERE ARE IMPROPER PARTIES ON AN ORIGINATING PROCESS

When there are improper parties on an originating process, the proper order to make is an order striking out the said process, in this case: the notice of appeal. See OLORIODE v. OYEBI (1984) 1 SCNLR 390. This is what order 6, Rule 6 of the court of Appeal Rules, 2011 is all about. A court of law has the power and duty to put an end to any proceedings if, at any stage and by any means, it becomes manifest that the proceedings are incompetent. It can do this of its own initiative or at the behest of a party in the proceedings. See WESTMINISTER BANK LTD v. EDWARDS & ANOR (1942) A C 529 at page 536. Per EJEMBI EKO, J.C.A.

JUSTICES

EJEMBI EKO Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

Between

VERALAM HOLDINGS LIMITED – Appellant(s)

AND

1. GALBA LIMITED

2. LT. GEN T.Y. DANJUMA (RTD) – Respondent(s)

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): The writ of summons taken out of the Federal High court, holden at Port Harcourt on 24th November, 2004 by the appellant, as the plaintiff, has two (2) defendants against whom the claims of the plaintiff were made. The 1st and 2nd Defendants, respectively in the said suit no FHC/PH/CS/1537/2004 were GALBA LTD and LT. GENERAL T.Y. DANJUMA (RTD).

In the suit the appellant, as plaintiff, claims in paragraph 21 of the statement of claim endorsed on the writ of summons as follows:

21. Wherefore the plaintiff claims as follows from the defendants:

(a) A declaration that the plaintiff is not indebted to the defendant (sic) in the sum of N590,000,000.00 (Five Hundred and Ninety Million Naira) as claimed in the defendant’s letter dated November, 10 2004 or at all

(b) An order of the Honourable court setting aside the notice of intention to sell the shares in Galba Ltd contained in the defendant’s letter of November 10, 2004 as illegal and fraudulent

(c) An injunction restraining the defendant from selling the shares of the plaintiff in the defendant’s company without the consent in writing of the plaintiff.

On 15th November, 2005 the 2nd defendant in the said suit at the court below brought a motion seeking inter alia, an order “that the name of the 2nd defendant, Lt. Gen. T.Y. Danjuma (RTD) be struck out of this suit”. The said 2nd defendant, succeeding in the application, was on 24th November, 2006 “struck out of the suit”. By that order the 1st defendant, GALBA LTD, became the sole defendant in the suit. It is this order that has agitated the filing of this appeal.

The Notice of Appeal, at pages 63 and 64, filed on 8th December, 2006 has only Lt. General T.Y. Danjuma (RTD) as the sole respondent in the appeal. Thus the parties in the suit leading to the appeal have been unilaterally altered without leave of court.

By order 6 Rule 2 (1) of the court of Appeal Rules, 2011 “all appeals shall be by way of rehearing”. As stated in ADEGOKE MOTORS LTD v. ADESANYA (1998) 3 NWLR [pt.109] 250 at page 266, which principle of law was restated in NGIGE v. OBI (2006) 14 NWLR [pt.999] 1 at page 225: because appeal is generally regarded as continuation of the original suit, rather than the inception of a new action; parties are normally confined to the case, as pleaded, in the court of first instance. This case at the court below, being the court of first instance, has the appellant, as the plaintiff, with Galba Ltd and Lt. Gen. T.Y. Danjuma (RTD) as 1st and 2nd defendants respectively.

The unilateral alteration of the parties in the suit, as pleaded at the court below, by the appellant as reflected in the Notice of Appeal, renders the notice of appeal incompetent. With these parties, improperly altered, on the notice of appeal the said notice of appeal is liable to be struck out, and it is hereby struck out. When there are improper parties on an originating process, the proper order to make is an order striking out the said process, in this case: the notice of appeal. See OLORIODE v. OYEBI (1984) 1 SCNLR 390. This is what order 6, Rule 6 of the court of Appeal Rules, 2011 is all about. A court of law has the power and duty to put an end to any proceedings if, at any stage and by any means, it becomes manifest that the proceedings are incompetent. It can do this of its own initiative or at the behest of a party in the proceedings. See WESTMINISTER BANK LTD v. EDWARDS & ANOR (1942) A C 529 at page 536.

The parties in the appeal seem to acquiesce in the fundamental defect bedevilling this interlocutory appeal. The appellant and the defendants at the court of first instance, including GALBA LTD, who is not a respondent in this appeal, exchanged briefs of argument. Galba Ltd and Lt. Gen. T.Y. Danjuma (RTD) filed joint “Respondents’ Brief of Argument” on 16th April, 2010. The brief was deemed filed on 12th February, 2013. This was in response to the Appellant’s Brief with two respondents therein.

By Order 6 Rule 15 of the extant Rules of this Court amendment of any process before this Court is only by leave of court, and not by acquiescence of the parties thereto. If a process, as this notice of appeal, is incompetent the parties can not by acquiescence validate or re-validate it for purposes of the court’s jurisdiction over it. See A.G. ANAMBRA STATE v. OKEKE (2002) 12 NWLR [pt.782] 575 wherein the Supreme Court cited with approval the statement of law on this principle as contained in WESTMINISTER BANK LTD v. EDWARDS (supra).

The appeal, as it is now, is not properly constituted by the unilateral alteration of the parties to the suit from which the appeal emanates. The situation entitles me to strike out the appeal on the Authority of PERMANENT SECRETARY MINISTRY OF WORKS, KWARA STATE v. BALOGUN (1975) 5 SC 57; (1975) ALL NLR 253.

EKPOKE v. USILO (1978) 6 7 SC 187; PERMANENT SECRETARY, MINISTRY OF WORKS, KWARA STATE v. BALOGUN (supra) at 59

It is clear from the notice of appeal that this appellant herein did not want or intend that GALBA LTD be heard in this appeal. The appellant, however, belatedly and against the letters and spirit of Order 6 rule 15 of the Rules of this court made GALBA LTD the 1st respondent by the Appellant’s Brief of Argument filed on March, 28, 2008. He has consequently altered or amended the notice of appeal without leave of court. This also renders the Brief of Argument incompetent. Upon striking out this brief, which I hereby do; the appeal becomes liable to be dismissed under Order 18 Rules 2 and 10 court of Appeal Rules, 2011. This is so because, in law, the appellant has not filed his brief within the time stipulated after the transmission of the records of appeal, which in this case was deemed compiled and transmitted since 2008.

I may not be right in law in the views expressed above. In that case, let me consider the merits of the appeal.

The sole issue formulated and argued in the Appellant’s Brief filed on 25th March, 2008 is:

Whether the 2nd Respondent is not a proper party to this suit in view of some specific allegations levelled against him in the statement of claim?

The Respondents, on the other hand, formulated and argued a sole issue that reads thus:

Whether the Appellant has disclosed any cause of action against the 2nd Respondent as to require him being a party to the suit?

The two issues are not too dissimilar.

I have read the briefs exchanged in this appeal. The appellant’s contention is that paragraphs 3, 4, 5, 6, 7, 8, 11, 12, 18 and 19 of the statement of claim at pages 5, 6, 7 and 8 of the records of appeal contain some specific allegations against the 2nd Respondent to warrant him answer these allegations, which he can not answer unless he is made a party to the suit. What I have not found from the Appellant’s Brief is the answer to the question: are these specific allegations against the 2nd Respondent related to the reliefs sought in paragraph 21 of the statement of claim? I had earlier reproduced the reliefs sought in the suit.

The determinant, as to whether a set of facts pleaded in the statement of claim constitutes the cause of action, is whether that set of facts, as pleaded, will prove or support the reliefs claimed. The cause of action, of necessity, must relate to the claim or the reliefs sought: see A.G., ANAMBRA STATE v. OKAFOR (1992) 2 NWLR [pt.224] 396 at page 431 A – B. By the rules of trial courts and the inherent powers of those courts the trial courts have powers to strike out frivolous, vexatious and scandalous pleadings which, usually, are not necessary to support or prove the reliefs sought. Where no cause of action is disclosed against a defendant the trial court, on proper application of the party, may strike out such party. See DURU v. NWAGWU (2006) ALL FWLR [pt.334] 1830.

In the Respondents’ Brief it is submitted, on authority of AJAYI v. JOLAYEMI (2001) 10 NWLR [pt.722] 516 at 531, that it is not proper to join, as co-defendants, persons against whom the plaintiff has no cause of action. The Respondents are on strong grounds here.

The Appellant relies on GREEN v. GREEN (1987) 3 NWLR [pt.61] 480 at 492 for its contention that the 2nd Respondent is a necessary party, and as such should be joined in the suit. I am strongly persuaded by the Respondents submission that in the case of GREEN v. GREEN (supra) the cause of action, as it relates to the claims against the person sought to be joined as a party, was sufficiently disclosed. Is there any such disclosure in the instant case?

Paragraphs 11 and 19 of the statement of claim suggest that one Barr. Musa Danjuma, a nominee of the 2nd Respondent, and not the 2nd Respondent himself, is the one running the affairs of the 1st Respondent. It is though pleaded that the 2nd Respondent is running the affairs of 1st Respondent by proxy. It is, however, not clear to me how paragraphs 3, 4, 5, 6, 7, 8, 11, 12, 18 and 19 of the statement of claim disclose sufficient cause of action against the 2nd Respondent to warrant his defending the three claims or reliefs sought in the suit in paragraph 21 of the statement of claim. I am in complete agreement with the learned trial Judge when he stated in the decision appealed, particularly at page 60 of the Record, that –

The plaintiff has however not sought any remedies or reliefs in respect of those anomalies. The reliefs which the plaintiff seeks, as stated in paragraph 21 of the statement of claim, have nothing to do with the 2nd Defendant, as 2nd Defendant’s actions have not been questioned in relation to those reliefs neither is any of the reliefs directed at the 2nd Defendant.

The cause of action and the right to the reliefs sought against a defendant are co-terminus. They must co-exist. That is why order 12 Rule 3 of the Federal High court (Civil procedure) Rules, 2002 (now Order 9 Rule 1 of the 2009 Rules) states:

All persons may be joined as Defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in alternative and judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment.

As Fatai-Williams JSC stated in SAVAGE v. UWECHIA (1972) ANLR 225: a cause of action, which is the fact or combination of facts which gives rise to a right to sue – consists of two elements – the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage.

It is, therefore, not every allegation in the statement of claim that constitutes the cause of action. It is only that fact that is necessary for the plaintiff to prove in support of his reliefs in order to entitle him to the judgment in the suit against the defendant that the law regards as the cause of action. An allegation made, merely to evoke reaction, sentiments and emotions, which are not related to or intended to support and prove the reliefs sought are nothing but frivolous, vexatious or scandalous allegations.

In view of my foregoing stance; I would have dismissed the appeal for lacking in merits or substance. However, as the notice of appeal is incompetent the notice of appeal is hereby struck out.

Consequently, therefore, I will not disturb the order of the trial court made in the suit.

The costs of this appeal assessed at N100,000.00 are hereby awarded to the Respondents

MODUPE FASANMI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother EJEMBI EKO, J.C.A, just delivered.

The parties on the notice of appeal are not properly constituted by the unilateral alteration of the parties to the suit from which the appeal emanates. The notice of appeal is grossly incompetent and it is accordingly struck out by me as well. I abide by the consequential orders contained therein inclusive of costs.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned Brother Ejembi Eko, JCA, and I agree entirely with the reasoning and conclusions therein. The issue of unilateral alteration of parties in any suit pending before this Court not a trivial issue.

At the commencement of any case, it is the undisputed right of a Plaintiff-to choose the person or persons he wishes to sue (see – A.G. Rivers v. A.G. Akwa Ibom State (2011) 8 NWLR (Pt.1248) 31. The moment the action is filed in Court and the processes are issued out by the Court the Court now becomes dominus litis and no one other than the Court can alter the parties. It now would only be the Court that can permit or issue leave or fiat for alteration of the parties. The fact that the matter has proceeded from the trial Court to the Court of Appeal does not change the nomenclature of a case because an appeal under our Rules is by way of a rehearing of the matter.

In the case of SS. (Nig) Ltd. v. A.S. (Nig) Ltd (2011) 4 NWLR (Pt.1238) 596, the Supreme Court held that an applicant cannot change the parties in the notice of appeal in his application. The parties in both processes should be the same and none should be excluded unless it has been formally withdrawn. Similarly in PPA v. INEC (2012) 13 NWLR (Pt.1317) 215, the Supreme Court also held Per Ngwuta, JSC held that if any party is displaced and a stranger to the proceedings at the trial Court has usurped his place the appeal will be incompetent and the appellate Court will lack jurisdiction to hear it. This applies equally for an application for leave to appeal. In that case of PPA v. INEC (supra) Ariwoola JSC in his own contribution said:

“What is more, a cursory look at all the processes filed in this Court shows that they do not reflect the same title as that which obtained in the trial tribunal. The parties are completely and radically different. For a Court to have jurisdiction, one of the conditions to be satisfied is that the proper parties are before the Court where proper parties are not before the Court, the Court will be lacking in competence. Hence the case is liable to be struck out.”

The Court cannot be helpless in dealing with issues of improper constitution of a suit. In Gov. Kogi State v. Yakubu (2001) 6 NWLR (Pt.710) 521, the Supreme Court held that when a Court finds an action improperly constituted, the proper order to make is to strike it out.

It is for this, and the fuller reasons adduced by my learned brother Ejembi Eko, JCA in the lead judgment that I also order the striking out of this notice of appeal. I abide by all the consequential orders including order as to cost.

Appearances

Chief M.I. Ahamba, SAN with C.C. Okoroafor Esq.For Appellant

AND

B. B. Dan-Habu Esq. with A. E. MoyedeFor Respondent