ALI SHOUR & ANOR v. NIGERIA DEPOSIT INSURANCE CORPORATION & ORS (2014)

ALI SHOUR & ANOR v. NIGERIA DEPOSIT INSURANCE CORPORATION & ORS

(2014)LCN/7200(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of May, 2014

CA/K/179/2011

RATIO

WHETHER AN APPELATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COUURT

Ordinarily, an appellate Court does not interfere with the exercise of discretion by a trial. An appellate Court will, however, interfere where it is shown that the discretion was not exercised judicially and judiciously; that is to say, if the exercise was mala fide, arbitrary, illegal either by considering extraneous matters or failing to consider material issues. The question is whether the exercise of discretion by the trial Court accorded with the dictates of justice – Babatunde v. Pan Atlantic Shipping and Transport Agencies Ltd (2007) 13 NWLR (Pt. 1050) 113, Ado v. Commissioner for Works, Benue State (2007) 15 NWLR (Pt. 1058) 429. The lower Court in the instant case did not consider the material issues necessary for the exercise of its discretion and it relied on extraneous matters in making the order joining the Appellants as co-plaintiffs in the matter. It is a proper case that calls for the interference of this Court. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ITA G. MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

1. ALI SHOUR
2. MRS. YUSUF MOHAMMED SHOUR Appellant(s)

AND

1. NIGERIA DEPOSIT INSURANCE CORPORATION
2. SHOURTEX NIGERIA LIMITED
3. MR. KHODOR Y. SHOUR Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Kano State in Suit No. K/687/2001 delivered by Honourable Justice N. S. Umar on the 9th of March, 2010 wherein the lower Court made an order joining the Appellants as co-plaintiffs in the suit on the application of the first Respondent.

The second and third Respondents, as plaintiffs, commenced the action in Suit No. K/687/2001 in the High Court of Kano State against City Express Bank Limited, as defendant, and the first Respondent was subsequently substituted for City Express Bank. The claims of the second and third Respondents, as plaintiffs, were:
i. A declaration that the Defendant’s refusal to allow the first Plaintiff draw down part of the facility granted it on the 2nd of October, 2001 and renewed severally is a breach of the terms and conditions of their agreement and occasioned a miscarriage of justice to the Plaintiffs.
ii. A declaration that the interest and/or other banking charges debited to the account of the first Plaintiff is excessive and arbitrary.
iii. A declaration that the recent threats of recall and or withdrawal of the facility under reference is a breach of the terms and conditions of the agreement between the parties herein and therefore null and void whatsoever.
iv. A declaration that the Defendant’s threat of auctioning the Plaintiffs landed property at No. 11, Dawaki Road, Nassarawa, GRA Kano, and trading stock is a breach of the agreement between the parties herein and therefore null and void whatsoever.
v. An order compelling/directing the Defendant to obey the terms and conditions of the grant of the facility in question relating to the repayment schedule and sources.
vi. An order of this Honourable Court appointing or directing the appointment of an independent auditor or a firm of auditors to properly audit the account of the first Plaintiff with the Defendant’s Kano Branch.
vii. An order of injunction restraining the Defendant from making excessive and arbitrary interest and or other bank charges on the first Plaintiff’s account with it.
viii. An order of injunction restraining the Defendant either by itself, its agents, servants, successor-in-title, privies and assigns from selling by auction or otherwise disturbing in whatever way the Plaintiffs’ title and possession of their property situate at No. 11, Dawaki Road, Kano covered by the Kano State certificate of occupancy No. LKN/RES/RC/8100010 and trading stock at No. 10 Fagge Takudu, Kano.

The third Respondent is the chairman of the second Respondent and their case on the pleadings was that the second Respondent maintained a current account with the Kano Branch of City Express Bank Ltd and that sometime in April 2000, the Bank granted an overdraft (renewal/enhancement) facility of N25 Million to the second Respondent on terms and conditions contained in a letter of approval dated 17th of April, 2000 and the interest rate on the facility was fixed at 35% per annum renewable in line with prevailing market conditions. It was their case the facility was subsequently renewed and enhanced to the sum of N30 Million on terms and conditions contained in a letter dated the 2nd of October, 2000 and the interest rate was fixed at 30% also renewable in line with prevailing market conditions. It was their case that the facilities were secured by a legal mortgage created over the property lying and being at No. 11, Dawaki Road, Kano covered by the Kano State Certificate of Occupancy No. LKN/RES/RC/8100010 and a lien mortgage on the trading stock of ile materials of the second Respondent. Problems arose with the servicing of the facilities and the Bank threatened to call in the mortgage and the lien and it was the case of the second and third Respondents that the action of the Bank was not within the terms and conditions of the facilities and that the Bank debited the account with excessive interests and bank charges contrary to the agreed terms and conditions.

In response, the Bank filed a statement of defence and a counterclaim wherein it admitted that the second Respondent was its customer in its Kano Branch and that it granted the second Respondent the overdraft facility of N25 Million and which was subsequent enhanced to N30 Million on terms and conditions embodied in letters of approval and it stated that the facilities were secured by (i) a tripartite deed of legal mortgage over the property at No. 11, Dawaki Road, Kano covered by the Kano State certificate of occupancy No. LKN/RES/RC/8100010, (ii) personal guarantee of the third Respondent, and (iii) a deed of Hypothecation of Stock. It denied acting and/or charging interest and charges outside the agreed terms and conditions and it was its case that it was the second and third Respondents that breached the terms of repayment agreed by the parties such that as at 30th of April, 2003 the debit balance in the account was N74,644,908.01 and that the second and third Respondents failed to liquidate the debt despite repeated promises. The Bank counterclaimed for the sum of N74,644.908.01 together with interest at the rate of 40% from the 1st of May, 2003 until judgment and thereafter at the rate of 10% until liquidation.

On the 4th of March, 2010, the first Respondent filed an application dated the 3rd of March, 2010 before the lower Court praying for an Order joining the Appellants herein as the third and fourth plaintiffs in the matter. The case of the first Respondent on the affidavit in support of the application was that the first Appellant was the brother of the third Respondent while the second Appellant was their mother and that the third Respondent and the Appellants were joint title holders by inheritance of the property at No. 11, Dawaki Road, GRA Kano covered by the Kano State Certificate of Occupancy No. LKN/RES/RC/8100010 and that this was the subject matter of a dispute in Suit No. K/729/2003 pending before the High Court of Kano State. It was the case of the first Respondent that the property was also part of the subject matter of the present suit and was the only real estate owned by late Mohammed Yusuf Shour, the father of the third Respondent and first Appellant and husband of the second Appellant and that the third Respondent and the Appellants are the beneficiaries to the property under the Islamic Law of succession. It was its case that it was necessary for the Appellants to be joined as parties in the present suit so that all the issues relating to the property in question would be resolved and the decision of the lower Court in this suit will be binding on all persons who have an interest in the property.

The second and third Respondents did not oppose the application and the lower Court granted same on the 9th of March, 2010. The Appellants filed a motion on notice dated the 30th of March, 2010 praying the lower Court to set aside the order joining the Appellants as co-plaintiffs in the suit and striking out the names of the Appellants as parties in the suit. The first Respondent opposed the application. The lower Court took arguments on the motion and it dismissed same in a ruling delivered on the 30th of September, 2010. The Appellants thereafter filed a motion on notice dated the 22nd of December, 2010 before this Honourable Court praying for leave to appeal against the ruling of the lower Court dated the 9th of March, 2010 granting the application joining them as co-plaintiffs. This court heard and granted the application on 24th of March, 2011 and gave the Appellants two days to file their notice of appeal and whereupon the Appellants filed a notice of appeal containing two grounds of appeal on the 25th of March, 2011.

In arguing this appeal, counsel to the Appellants presented a brief of arguments dated the 24th of October, 2013 and filed on the 10th of January, 2014. The brief of arguments was deemed properly filed on the 6th of February, 2014. The Respondents did not file any brief of arguments to contend the case of the Appellants. At the hearing of the appeal, Counsel to the Appellants adopted his brief of arguments. Counsel who appeared for the first Respondent stated that they were not contesting the appeal while the second and third Respondents were absent from Court and were not represented by Counsel.

Counsel to the Appellants formulated one issue for determination in this appeal and it was:
Whether having regard to the questions and issues as contained in the pleadings of the parties before the lower Court, the Appellants have an interest in the matter and their presence is necessary for the effectual and complete adjudication and settlement of the questions and issues involved in the matter.

In arguing the issue for determination, Counsel referred to the provisions of Order 11 Rule 1 of the High Court of Kano State Civil Procedure Rules dealing with joinder of a party as a co-plaintiff and stated that the requirements for joining a person as a plaintiff in a matter are that:
i. the right to relief claimed in the suit must be vested in the plaintiffs whether jointly, severally, or in the alternative;
ii. the right to relief must be in respect of or arise out of the same transaction or series of transactions; and
iii. if all the plaintiff had brought separate actions, a common contention of law or fact would arise in all such actions.

Counsel also referred to the provisions of Order 11 Rule 5 (1) of the High Court of Kano State Rules which empowered the trial Court to, at any stage of the proceedings, join any person as a party, with or without the application of the parties, any person who ought to have been joined, or whose presence before the court is necessary to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter. Counsel thereafter traversed through the claims and counterclaims of the parties before the lower court and their respective cases on the pleadings and stated that it was obvious that the Appellants do not share an interest in the subject matter of the suit and their presence was not necessary for the effectual determination of the issues involved in the matter. Counsel referred to the cases of Green v. Green (1987) 2 NSCC 1115 and Panalpina World Transport (Nig) Ltd v. J. B. Oladeen International Ltd (2011) All FWLR (Pt. 564) 21 and principles governing joining of only persons who were necessary parties in a suit and stated that the Appellants were not necessary parties in this matter. Counsel stated that it was not shown that the second Respondent was a family company in which the Appellants had interests and that the property at No. 11, Dawaki Road, Kano was not in issue before the lower Court and the validity of the deed of legal mortgage created over the property was not in contest in the matter. Counsel stated that the lower Court did not possess the jurisdiction to join the Appellants as parties in the circumstances and he referred to the case of Uku v. Okumagba (1974) NSCC 128. Counsel urged this Court to find in favour of the Appellants on the issue for determination.

The lower Court joined the Appellants as co-plaintiffs with the second and third Respondents on the application of the first Respondent. In other words, the Appellants were not originally parties to the action between the second and third Respondents, as plaintiffs, and the first Respondent, as defendant, and they were added as new plaintiffs by the lower Court. It is trite that the issue of joinder of a person as a party in a suit is governed by the provisions of the High Court Rules and for an application seeking to join or add a person as a new plaintiff to be appropriate, it must fulfill the objectives of the rules of court relating to joinder of parties.

The relevant provisions in the instant case, as rightly pointed out by Counsel to the Appellants, are Order 11 Rules 1 and 5 (1) of the High Court of Kano State (Civil Procedure) Rules 1988. Order 11 Rule 1 reads:
“All persons may be joined in one action as plaintiffs in whom right to relief (in respect of or arising out of the same transaction or in a series of transactions) is alleged to exist whether jointly, severally, or in the alternative, where if such persons brought separate actions, any common questions of law or fact would arise, and judgment may be given for such one or more of the plaintiff as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment.”
This provision is not peculiar to the High Court of Kano State and it is contained in the High Court Civil Procedure Rules of other States and such similar provisions have been the subject of judicial interpretation. The Courts say that an application seeking to join a person as a plaintiff in a matter, must, in order to succeed, establish the following conditions or factors:
(a) that the right to relief claimed in the suit must be vested in the plaintiffs whether jointly, severally, or in the alternative;
(b) that the right to relief must be in respect of or arise out of the same transaction or series of transactions, and;
(c) that if all the plaintiffs had brought separate actions, a common question of law or fact would arise in all such actions.
It is only when these conditions are fulfilled or established by the application that the joinder of a person as a plaintiff can be possible in law – Cross River State Newspapers Corporation Vs Oni (1995) 1 NWLR (Pt. 371) 270, Ibigbami Vs Military Governor, Ekiti State (2004) 4 NWLR (Pt. 863) 243, AbdulRaheem Vs Oduleye (2005) 8 NWLR (Pt. 926) 144, Ogunbule Vs Adebanjo (2006) 2 NWLR (Pt. 964) 319.

The need for a party seeking to be joined as plaintiff in a matter to have consistent and collaborative interest with the existing plaintiffs is that co-plaintiffs in a matter are represented at trial by one legal practitioner and their case is conducted on their collective behalf and it is thus essential that as far as prosecution of the suit is concerned parties joined as co-plaintiffs should not have conflicting interests between themselves and be agreeable to all the necessary steps to be taken in the presentation of their case.

The basis upon which the application seeking that the Appellants be joined as co-plaintiffs before the lower Court was predicated was that the first Appellant was the brother of the third Respondent while the second Appellant was their mother and that the third Respondent and the Appellants were joint title holders by inheritance of the property at No. 11, Dawaki Road, GRA Kano covered by the Kano State Certificate of Occupancy No. LKN/RES/RC/8100010 and that this was the subject matter of a dispute in Suit No. K/729/2003 pending before the High Court of Kano State. It was the case of the first Respondent that the property was also part of the subject matter of the present suit and was the only real estate owned by late Mohammed Yusuf Shour, the father of the third Respondent and first Appellant and husband of the second Appellant and that the third Respondent and the Appellants are the beneficiaries to the property under the Islamic Law of succession.

The court processes filed in Suit No. K/729/2003 were part of the records of appeal in this matter. The action was commenced by the first Appellant against the first, second and third Respondents herein, as fourth, second and first defendants respectively, and Union Bank of Nigeria Ltd, Commissioner for Lands and Physical Planning, Kano State and Registrar of Deeds, Kano State, as third, fifth and sixth defendants respectively. The right to relief claimed by the first Appellant in that suit was that he and the third Respondent are brothers and that the property lying and being at No. 11, Dawaki Road, Kano covered by the Kano State Certificate of Occupancy No. LKN/RES/RC/8100010 originally belonged to their father, Mohammed Yusuf Shour, who died on the 10th of June 1987 and that the said property devolved on him and the third Respondent upon the distribution of their father’s estate and that third Respondent fraudulently mortgaged the property to the first Respondent by first representing himself to be Mohammed Yusuf Shour, their father, and later by forging his own signature.

It is obvious that the right to relief claimed by the first Appellant in Suit No. K/729/2003 was different from the right to relief claimed by the second and third Respondents in the present suit and that the claims in both suits did not arise from the same transaction or series of transactions and that a common question of law or fact does not arise in both actions. The right to relief of the first Appellant in Suit No. K/729/2003 does not rhyme with the right to relief of the second and third Respondents in the present case. The application for joinder of the Appellants as co-plaintiffs in this suit did not thus qualify for grant under the provisions of Order 11 Rule 1 of the High Court of Kano State (Civil Procedure) Rules 1988.

Another provision of the High Court of Kano State (Civil Procedure) Rules 1988 dealing with joinder of parties generally is Order 11 Rule 5 (1). It states that:
“If it shall appear to the Court, at or before the hearing of a suit, that all persons who may be entitled to or who claim some shares or interests 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 plaintiffs or defendants in the suit, as the case may be. …”
This rule empowers the trial Court to join persons as parties in a suit, either on its own motion or on the application of that party or of the existing parties in the matter. This power of the trial court is, however, not at large and the principles governing intervention by a third party have been settled by many authorities in England and in this country. In Re: Mogaji: Yesufu Faleke Mogaji v. Oyedeji Akanbi Mogaji (1986) NWLR (Pt. 19) 759, Nnamani, JSC, referring to his judgment in Peenok Investments Ltd v. Hotel Presidential Ltd (1952) 12 SC 1 stated:
“From the earliest times, as far as this rule is concerned, the consideration has always been whether the entry of the party sought to be joined will enable the Court effectually and completely adjudicate upon and settle all questions … Perhaps the best construction of this rule is that which was placed on it by Wilmer J in “The Result” (Miguel) Sanchiez & Companies S. I. v. Result (Owners) Nello Simons Ltd (1958) P 1974 ……
The learned Judge said:
‘Having regard to the terms of the rule, it appears to me that the questions to be determined on this summons are these. First, is the cause or matter liable to be defeated by the non-joinder of the third parties as defendants? This I think means in effect; is it possible for the court to adjudicate upon the cause of action set up by the plaintiffs, unless the third parties be added as defendants? Secondly, are the third parties persons who ought to have been joined as defendants in the first instance? Thirdly, and alternatively, are the third parties persons whose presence before the Court as defendants will be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the question involved in the cause or matter?’
These criteria were restated by the Supreme Court in Green v. Green (1987) 3 NWLR (Pt. 61) 480 and Cotecna International Ltd v. Churchgate (Nig) Ltd (2010) 18 NWLR (Pt. 1225) 346. In other words, the purpose of joinder of parties in an action under this rule is to enable the court effectually and completely adjudicate upon and settle all questions involved in the cause or matter. Therefore, the overriding considerations 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 will be irreparably prejudiced if he is not made a party – Oduola Vs Coker (1981) 5 SC 197, Osunrinde Vs Ajamogun (1992) 6 NWLR (Pt. 246) 156, Awoniyi v. Registered Trustees of Amorc (2000) 10 NWLR (Pt. 676) 522, Bello Vs Independent National Electoral Commission (2010) 8 NWLR (Pt. 1196) 342. It is on these bases that a trial court can exercise the power to join a person as a party in a matter and for no other reason. This point was succinctly made by Udoma, JSC in Uku Vs Okumagba (1974) 3 SC 35 when the learned Justice after stating that the key words are ‘effectually and completely to adjudicate upon and settle all the questions’, said that:
“The beginning and end of the matter is that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose.”

In the instant case, the issues or questions submitted for adjudication before the lower Court in the pleadings of the second and third Respondents, as plaintiffs, and of the first Respondent, as defendant, revolved around the overdraft facility extended to the second Respondent by City Express Bank Ltd, the predecessor of the first Respondent, and which facility was secured by a deed of legal mortgage over the property lying at No. 11, Dawaki Road, Kano covered by the Kano State Certificate of Occupancy No. LKN/RES/RC/8100010 and by the personal guarantee of the third Respondent and by a deed of hypothecation over the stock of the second Respondent. The contest between the parties was whether either of them had breached of the terms and conditions of the facility. There was no contest over the validity of the deed of legal mortgage over the property at No. 11, Dawaki Road, Kano covered by the Kano State Certificate of Occupancy No. LKN/RES/RC/8100010 and neither was there a claim by the first Respondent to enforce the deed of legal mortgage. There is nothing on the records to show that either of the Appellants had an interest in the second Respondent or partook in any transaction concerning the facility extended to the second Respondent by City Express Bank Ltd or in the alleged breach of the terms and conditions of the facility. There is nothing showing any question or issue in the suit before the lower Court which cannot be effectually and completely adjudicated upon and settled without the presence of either of the Appellants. The Appellants were not necessary parties to the matter before the lower Court to warrant their being joined as parties. The order made by the lower Court joining the Appellants as parties cannot thus also be sustained under the provisions of Order 11 Rule 5 (1) of the High Court of Kano State (Civil Procedure) Rules 1988.

The grant or refusal of an application for joinder of a party in a suit before a trial Court involves the exercise of discretion by that Court.

In conclusion, this Court finds merits in this appeal and it is hereby allowed. The Ruling of the High Court of Kano State in suit No. K/687/2001 delivered by Honourable Justice N. S. Umar on the 9th of March, 2010 wherein the lower Court made an order joining the Appellants as co-plaintiffs in the suit is hereby set aside. The Appellants are struck out as parties in the matter before the lower court. The parties shall bear their respective costs of this appeal. These shall be the orders of this Court.

ABDU ABOKI, J.C.A.: I have had the opportunity of reading the lead judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with the reasoning and conclusion reached that the appeal should be allowed and I accordingly allowed it. I abide by the consequential orders as to costs in the lead judgment.

ITA G. MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother H. A. O. Abiru, JCA. I abide by the consequential orders in the lead judgment.

Appearances

Ishaku I. Garba with Yusuf AmmaniFor Appellant

AND

K. M. Kura for the first Respondent

No appearance for the second and third RespondentsFor Respondent