ELDER S. A. SOYINKA V. DR. OLAIYA ONI & ORS
(2011)LCN/4466(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2011
CA/B/209/2005
RATIO
DECISION OF COURT OF CONCURRENT JURISDICTION: WHETHER THE ORDER OF ONE JUDGE CANNOT BE REOPENED BY ANOTHER JUDGE OF CONCURRENT JURISDICTION
In the case of Amanambu v. Okafor (1960) 1 All NLR 201 a plaintiff obtained an order to amend his claim before the trial court, the case later came up for trial before another judge who upheld the objection of the defendants that the order to amend before the earlier court was invalid. On appeal to the Supreme Court as then constituted Onyeama JSC held that the later court had no power to review the order of the earlier court as though he were sitting on appeal over it. In other words, the Supreme Court upheld the argument of the plaintiffs that the order of one judge cannot be reopened by another judge of the same court. Again in Uku v. Okumaebe (1974) 3 SC 24, Udo Udoma JSC held that a judge acts without jurisdiction if he purports to set aside, though indirectly the previous order made by a court of competent and concurrent jurisdiction. He was functions officio. Also in Akporue v. Okei (1973) 12 SC 137 @, 145 – 146, the Supreme Court observed: “We agree with Dr. Odje, learned counsel for the appellants, that the learned trial judge lacks jurisdiction or power to set aside the representation order made by Prest J; as he purported to do in his judgment. In our view no judge is competent to sit in judgment over the decision or order made by his brother judge. In the context of our legal system, judicial review is primarily the function of the Appellate Court. Delivering the ruling of this court in Ukpa Orewere and ors v. Rev. Moses Abiegbe and ors (1973) 9 and 10 SC 1 @ page 6 Elias CJN said: “Ovie Whiskey J; would therefore appear to have misconceived Order 26 rules 8 and 9 which misconception led him to assume the power of judicial review over his brother judge. We think that the proper course would have been for the plaintiffs/applicants to have come on appeal to the Supreme Court against the ruling of Ogbobine J.” In the light of the above Supreme Court Judgment the authority of Bakule v. Tanerewa (Nig) Ltd (Supra) heavily relied on by the appellant is with all due respect doubtful. In the case, the court of appeal Kaduna Division observed: “This appeal is against the ruling or decision of Adamu J. delivered on 19/3/92″ Surely the ruling of Abdullahi J., which is part of the proceedings in the substantive case that were terminated on the transfer of Abdullahi J., to Jigawa state cannot be relevant in this appeal which is part of fresh proceedings in the case began de novo before another Judge Adamu J. The effect of starting the case afresh before Adamu J. is to sweep clean all previous proceedings in the case before Abdullahi J. See Odi v. Osafile (1987) 2 NWLR (pt 57). Any of the party’s herefore is free to this appeal.” This view apparently arose from a misinterpretation of the judgment of the court of Appeal Benin Division in Odi v. Osafile [1987] 2 NWLR (pt 57) 510 where it was held that when a judgment is set aside on appeal and a rehearing is ordered the duty of the court rehearing the case is to consider the case afresh on the merits of each party’s case without referring to the previous judgment. The procedure for rehearing a case set aside as a nullity on appeal is different from the rehearing of a case transferred from one judge to another judge of concurrent jurisdiction. In the case of rehearing after appeal, the hearing begins on a clean slate without reference whatever to the proceedings in the judgment declared a nullity. Where a case is transferred from one judge to another, all final decisions and orders of the previous court remain binding on the parties and can only be the subject of an appeal. The second judge has no jurisdiction to set aside directly or indirectly the decision of the former judge as that would mean sitting on appeal against the decision of his brother judge of concurrent jurisdiction. It is indeed an abuse of court process for a party before the second judge to seek to revisit a matter already decided by the previous court. See Onyebuchi v. INEC (Supra). The exception however is where the issue to be determined is one involving the exercise of the discretion of the presiding judge. In other words, where the relevant rule of court puts the issue to be determined in the realm of the exercise of the discretion of the judge and the first judge in the exercise of his discretion determines the issue a particular way, the second judge could in the exercise of his own discretion go in a different direction. PER CHINWE E. IYIZOBA, J.C.A.
THIRD PARTY PROCEEDINGS: NATURE OF A THIRD PARTY PROCEEDING; WHETHER THE MERE ADDITION OF A PERSON AS A THIRD PARTY TO A WILL IPSO FACTO MAKE HIM A DEFENDANT TO THE SUIT
Justice Ademola Bakare in his book titled THE UNIFIED RULES OF THE HIGH COURT [CIVIL PROCEDURE] IN NIGERIA ‘AN ANNOTATION’ page 68 has this to say about a 3rd party proceedings “A third party proceedings is like a “counter-claim” in the sense that it has a separate life of its own, the third party proceeding already started will continue to finality even where the original action has been settled. The person served with the notice is of necessity a defendant vis-?-vis the person serving it upon him” It is a misconception of the law to say that a 3rd party who is already a party cannot be joined as a co-defendant any more. In the case of Expo Ltd v. Pafab Ent. Ltd. [1999] 2 NWLR (P591) 449 @ 460, this court observed “The mere addition of a person as a third party to a suit does not ipso facto make him a defendant to the suit. He cannot defend the plaintiff s case nor can the plaintiff obtain judgment against him in the suit. If the plaintiff wishes to obtain judgment against a third party, he must apply to add him as a defendant. Also if the third party wishes to defend or counter-claim against the plaintiff he must apply to be added as a defendant. Otherwise all he is entitled to do is to admit or contest the claim against him by the defendant. In other words, the only way to make a third party responsible to the plaintiff or for the third party to make any counter-claim against the plaintiff is for him to be properly joined as a defendant. [Okafor v. A.C.B. Ltd (1975) 5SC 89 @103: Famuyiwa v. Folawivo (1973) 3 UILR 372… PER CHINWE E. IYIZOBA, J.C.A.
THIRD PARTY: WHETHER A PERSON THAT IS MADE A THIRD PARTY TO A SUIT CANNOT THEREAFTER BE ADDED AS A DEFENDANT
In Labode v. Otubu above, the appellant bought a property and gave the documents of title to a legal practitioner to process. The legal practitioner used the document as security for money advanced to him by the respondent. When the appellant found out what happened she sued the respondent for the return of her documents of title. She did not join the legal practitioner in the action. The respondent then took out a third party proceeding and thereby made the legal practitioner a third party in the suit. Much later the respondent filed an application to strike out the statement of claim on the ground that the proper parties were not before the court. The Supreme Court then held that the respondent himself having joined the legal practitioner as a 3rd party to the action could not be heard to complain that the proper parties were not before the court and for that reason to ask the trial court to strike out the statement of claim as it would have been an exercise in futility for the appellant after the respondent had joined the legal practitioner as a 3rd party to seek to join him as a co-defendant. This clearly is no authority for a general principle that a 3rd party in a proceeding cannot subsequently be made a defendant in the suit. The point is that a third party is brought into a suit at the instance of the defendant. The defendant who is sued by the plaintiff takes this action when he has a claim against the third party for contribution, indemnity or other remedy or relief connected with the plaintiff’s claim against the defendant. The third party cannot defend the plaintiff’s suit or counter-claim against the plaintiff and the plaintiff cannot obtain judgment against him in the suit. For any of that to happen, the plaintiff or the third party must apply for the third party to be added as a defendant. It is therefore a complete misconception of the law to say that once a person is made a third party in a suit, he cannot thereafter be added as a defendant. PER CHINWE E. IYIZOBA, J.C.A.
DISCRETION OF COURT IN THE JOINDER OF PARTIES: WHETHER THE GRANT OR REFUSAL OF APPLICATION FOR JOINDER OF PARTIES IS WITHIN THE DISCRETION OF THE TRIAL JUDGE
The phrase “if it shall appear to the court” in Order 11 v. 5 (1) of the Ondo State High Court (Civil Procedure) Rules 1987 places the grant or refusal of the appellant’s application within the discretion of the trial Judge, subject to the judicious and judicial exercise of the discretion see Egwu v. Stephen Modunkwn (1997) 4 NWLR (pt 501) 574 pt 585 Odionye Ohanaka v. Edmund Achugana & Anor (1998) of NWLR (pt 58a) 37 pt 66. PER NWALI SYLVESTER NGWUTA, J.C.A.
DISCRETION: MEANING OF THE WORD “DISCRETION” AND WHETHER A DISCRETION OF A JUDGE CAN BIND ANOTHER JUDGE
Discretion in the judicial and legal con means equitable decision of what is just and proper under the facts and circumstances of a particular case guided by the principles of Law. See Artra Industries Nigeria Ltd v. Nigerian Bank for Commerce and Industries (1998) 4 NWLR (pt 546) 357 Act 381 (S.C), Doherty v. Doherty (1964), At NLR 299. It follows that the exercise of the judges discretion is not binding on another judge. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES
SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE ADUMEIN Justice of The Court of Appeal of Nigeria
Between
ELDER S. A. SOYINKA Appellant(s)
AND
1. DR. OLAIYA ONI
2. SAMDEK INVESTMENTS LTD
3. MR. SAMUEL HARUNA Respondent(s)
CHINWE E. IYIZOBA, J.C.A.(Delivering the Leading Judgment): This is an appeal against an interlocutory decision of Sidiq J. of the High Court of Ondo State sitting at Akure in which the learned trial judge refused the application of the appellant to be joined as a co-defendant in this suit. The 1st respondent, Dr. Olaiya Oni was the plaintiff in the High court.
The 2nd and 3rd respondents were 1st and 2nd defendants. The 2nd defendant who is a cousin to the plaintiff is the owner and managing director of the 2nd defendant company. The plaintiff’s claims in the High Court against the defendants were as follows:
a. A declaration that a sum of N15, 000, 000 .00 kept in account No. 036-000- 4445 by the plaintiff in favour of the 1st defendant at Afribank Nig. Plc Akure Shopping Complex Branch, Akure is meant to be held in trust by the defendants for the plaintiff.
b. A declaration that the outstanding balance of N15, 000, 000.00 in the defendants’ account No. 036-000-4445 at Afribank Nig. Plc Akure Shopping Complex Branch, Akure is held in trust for the plaintiff by the defendants.
c. A declaration that the failure/refusal of the defendants to refund/release the said sum of N15, 000, 000 .00 to the plaintiff, the plaintiff having demanded the same is tantamount to a breach of trust reposed in the defendants by the plaintiff.
d. A declaration that the refusal of the defendants to release/refund the said sum of N15, 000,000 .00 to the plaintiff amounts to fraudulent conversion of the said sum of N15, 000, 000.00 by the defendants.
e. A declaration that the plaintiff is entitled to interest on the said sum of N15, 000, 000 .00 at the rate of 10% per annum which the plaintiff instructed the 2nd defendant to invest in fixed deposit (Bankers Acceptance) for an initial period of six months and thereafter for another period of six months from February 27th, 1999 as agreed between the 2nd defendant, Afribank Nig Plc, Akure Shopping Complex Branch Akure and the plaintiff.
f. A sum of N15, 000, 000 .00 from the defendants to the plaintiff being the outstanding balance in the defendants’ account No. 036-000-4445 at Afribank Nig. Plc Akure Shopping Complex branch Akure which sum is held in trust for the plaintiff by the defendants and interest on the said sum at the rate of 10% per annum from January, 2000 till the whole sum is paid.
g. Interest on the said sum of N15, 000, 000.00 at the rate of 10% per annum for initial period of six months and thereafter for another period of six months as agreed between the 2nd defendant Afribank Nig. Plc Akure Shopping Complex branch, Akure and the plaintiff.
h. A sum of N5, 000, 000 .00 as aggravated and exemplary damages for breach of trust.
After pleadings were exchanged, on the application of the 1st and 2nd defendants, 3rd party notice was issued and served on Elder S.A. Soyinka, the appellant. He thus became the 3rd party in these proceedings. The appellant then applied to be joined as a co-defendant in the suit because he wanted to defend the plaintiffs case and also to make a counter claim against the plaintiff. His application was refused, hence this appeal.
It is necessary at this point to set out the facts of this case from the appellant’s perspective. The appellant was a former employee of Afribank Plc. He was the manager of its Akure branch. The appellant was introduced to Dr. Oni, the plaintiff/1st respondent by the 3rd respondent as a seasoned banker who could be trusted. Dr Oni had just then been appointed the Minister of Education under the brief regime of General Abdulsalam Abubakar. The appellant was taken to Abuja by the 3rd respondent to meet the 1st respondent Dr. Oni at his official Ministerial quarters where they discussed how the appellant would help Dr. Oni keep all the monies that will be accruing to him as a minister; how best to maintain an account to shield his identity and how best to invest the money made during his tenure as a minister.
The appellant Elder Soyinka and the 1st respondent Dr. Oni, there and then agreed as follows:
1. To open for the 1st respondent a personal current account No. 35-002-512 with a fictitious name – Ade Olowu Akinwale at Afribank PLC Akure shopping complex branch
2. To use the 2nd respondents account No. 036-000-4445 with the said bank, the company account of the 3rd respondent as a conduit pipe for huge amounts
3. The use of Certificate of Deposit, which is a bearer and a negotiable instrument that does not carry the name of the holder.
On that same 28/9/98 the appellant met with the 1st respondent at Ministerial quarters at Abuja, the 1st respondent gave the appellant N1.2 Million to be utilized as follows:-
a) N100, 000 to be used in opening account No. 35-002-512 in the fictitious name of Ade Olowu Akinwale, and
b) N1, 000,000 to be lodged into the Certificate of Deposit Account.
Thereafter, the appellant visited the 1st Respondent several times in Abuja either to pick cheques or to carry huge sums of money to be lodged into either the account of the 2nd respondent or the account of Ade Olowu Akinwale. The only duty required of the 3rd Respondent as the owner of the 2nd respondent company was the signing of blank cheques to be given to the appellant to withdraw money from the 2nd respondent’s account and transfer it as may be directed by the 1st respondent.
When the 1st Respondent left office as a Minister, the appellant gave him a comprehensive account of the amount that passed through the 2nd respondent’s account and how it was disbursed. The 1st respondent was unhappy with the account and rejected the figure. He then petitioned the Commissioner of Police and on the basis of the petition, the appellant, the 3rd respondent and one Mr. Bosun were arrested and arraigned before the Chief Magistrate Court Akure, where they were granted bail. The Magistrate Court ordered that the case file be sent to the D.P.P. Ministry of Justice Ondo for legal advice. The DPP’s office advised that the dispute related to an undisclosed business transaction which would be better resolved in a civil suit. The 1st respondent then instituted this action in the High Court of Akure against just the 2nd and 3rd Respondents as 1st and 2nd defendants claiming the reliefs set out above. Even before the 1st and 2nd defendants filed their Statement of defence, the appellant and the said Bosun brought an application before Odunwo J. who was then seized of the case to be joined as co-defendants.
This was resisted by the 1st respondent. The application was refused by Odunwo J in a well considered ruling. As a result of a petition to the Chief Judge by one of the parties the case was transferred to Ogunwumrju J (as he then was). The 1st and 2nd defendants (2nd and 3rd Respondents) then filed their joint statement of defence. They also applied and were granted leave to issue and serve 3rd party notice on Elder Soyinka (the appellant). The 3rd party entered appearance within the days stipulated by the Learned Judge. Instead of filing his pleadings as ordered by the court, the 3rd party that is the appellant herein filed an application seeking the leave of the court to be joined as a co-defendant in the suit. The application was argued but before Ogunwumiju J. could deliver the ruling, he was transferred. The application was re-argued before Sidiq J., who again in a well considered ruling dismissed the application. With the leave of this court the appellant herein filed a notice of appeal with five grounds of appeal.
In compliance with our rules, briefs of argument were filed and exchanged by the appellant and the 2nd and 3rd respondents. The 1st respondent did not file any brief. By motion on notice the appellant obtained an order from the court to hear and determine this appeal on the appellant’s and 2nd/3rd respondents’ brief, the 1st respondent having failed to file his brief as required by law. When this appeal came up for hearing on 1/2/01, three years after the appellant filed his brief of argument, a counsel, Timi Yayu Esq. who announced appearance for the 1st respondent prayed this court for adjournment claiming that they had just been briefed and that processes had not been served on them. This court refused to adjourn the case on the ground that an order had already been granted the appellant to hear and determine the appeal on the brief of the appellant and the joint brief of the 2nd and 3rd Respondents, the 1st Respondent having failed to file his brief.
Thereupon Learned Counsel for the appellant and the 2nd/3rd Respondents adopted their briefs and urged the court to allow the appeal and set aside the ruling of the lower court.
From the five grounds of appeal the appellant formulated four issues for determination. They are:
1. Whether the appellant in this appeal ought to be joined as a co-defendant in this action before the trial court under the facts and circumstances of the case (Grounds 1 and 2).
2. Whether the appellant’s application for joinder as a co-defendant to the suit constitute an abuse of court processes (Ground 4).
3. Whether the learned trial judge exercised his discretion judiciously and judicially by refusing the application for joinder.
4. Whether the learned trial judge accorded the appellant fair hearing by refusing the appellant right of reply on points of law (Ground 5).
Learned Counsel for the 2nd and 3rd Respondents in their joint brief of argument formulated two issued for determination:
a. Whether having regard to the circumstances of the facts of this case, the trial judge was right to have refused to join the appellant as a co-defendant
b. Whether the trial court correctly applied the guiding principles for joinder in this case
I do not see the difference between issues (a) and (b) above. I am of the opinion that the following two issues are adequate to dispose of the appeal
1. Whether the appellant’s application for joinder as a co-defendant constituted an abuse of court process (Ground 4)
2. Whether having regard to the circumstances and facts of this case, the trial judge was right to have refused to join the appellant as a co-defendant (Grounds 1, 2 and 3)
Issue I: whether the application for joinder as a co-defendant constitutes an abuse of court process
The appellant herein, when the case was pending before Odunwo J., had along with one Bosun applied to be joined as co-defendants. The application was refused in a considered ruling. The case was then transferred to another judge before whom the appellant was made a 3rd party on the application of the defendants. The appellant alone now brought another application to be made a co-defendant. On these facts, the learned trial judge being satisfied that both applications were made by the same Elder S. A. Soyinka agreed with Learned Counsel for the 1st respondent that the application constituted an abuse of court process. Relying on Onyebuchi v. INEC [2002] 8 NWLR (pt 769) 417, the trial court held that an applicant cannot be allowed to re-litigate an issue already decided by a court of competent and concurrent jurisdiction.
The contention of the appellant is that there is no abuse of court process here. Relying on the case of Bakule v. Tanerewa (Nig) Ltd [1995] 2 NWLR (pt 3S0) 728 @ 738. Learned Counsel submitted that the transfer of the case from Odunwo J. to Ogunwumiju J. by the Chief Judge of Ondo State made the case start afresh before Ogunwumiju J. Either party was therefore free to bring any application before the court, even one that had earlier been decided by the previous court. Counsel submitted that the Court of Appeal (Kaduna Division) held in Bakule’s case that the effect of starting a case afresh before another judge is to sweep clean all previous proceedings in the case. Any of the parties therefore is free to bring afresh any application brought before the previous judge and in which he gave an adverse ruling against the party. Counsel also relied on Odi v. Osafile [1987] 2 NWLR (pt 57) 510 @ 512.
The question, therefore is whether the ruling of Odunwo J. on 18/7/01 refusing the application of the appellant as an intervener to be joined as a co-defendant in this case is a bar to the appellant bringing a similar application, even though as a third party before Sidiq J to whose court the case was subsequently transferred to? Or is the present application an abuse of court process in view of the earlier refusal of the same application by Odunwo J.?
In the case of Amanambu v. Okafor (1960) 1 All NLR 201 a plaintiff obtained an order to amend his claim before the trial court, the case later came up for trial before another judge who upheld the objection of the defendants that the order to amend before the earlier court was invalid. On appeal to the Supreme Court as then constituted Onyeama JSC held that the later court had no power to review the order of the earlier court as though he were sitting on appeal over it. In other words, the Supreme Court upheld the argument of the plaintiffs that the order of one judge cannot be reopened by another judge of the same court.
Again in Uku v. Okumaebe (1974) 3 SC 24, Udo Udoma JSC held that a judge acts without jurisdiction if he purports to set aside, though indirectly the previous order made by a court of competent and concurrent jurisdiction. He was functions officio.
Also in Akporue v. Okei (1973) 12 SC 137 @, 145 – 146, the Supreme Court observed:
“We agree with Dr. Odje, learned counsel for the appellants, that the learned trial judge lacks jurisdiction or power to set aside the representation order made by Prest J; as he purported to do in his judgment. In our view no judge is competent to sit in judgment over the decision or order made by his brother judge.
In the con of our legal system, judicial review is primarily the function of the Appellate Court. Delivering the ruling of this court in Ukpa Orewere and ors v. Rev. Moses Abiegbe and ors (1973) 9 and 10 SC 1 @ page 6 Elias CJN said:
“Ovie Whiskey J; would therefore appear to have misconceived Order 26 rules 8 and 9 which misconception led him to assume the power of judicial review over his brother judge. We think that the proper course would have been for the plaintiffs/applicants to have come on appeal to the Supreme Court against the ruling of Ogbobine J.”
In the light of the above Supreme Court Judgment the authority of Bakule v. Tanerewa (Nig) Ltd (Supra) heavily relied on by the appellant is with all due respect doubtful. In the case, the court of appeal Kaduna Division observed:
“This appeal is against the ruling or decision of Adamu J. delivered on 19/3/92″ Surely the ruling of Abdullahi J., which is part of the proceedings in the substantive case that were terminated on the transfer of Abdullahi J., to Jigawa state cannot be relevant in this appeal which is part of fresh proceedings in the case began de novo before another Judge Adamu J. The effect of starting the case afresh before Adamu J. is to sweep clean all previous proceedings in the case before Abdullahi J. See Odi v. Osafile (1987) 2 NWLR (pt 57). Any of the party’s herefore is free to bring afresh any application including the type the subject of this appeal.”
This view apparently arose from a misinterpretation of the judgment of the court of Appeal Benin Division in Odi v. Osafile [1987] 2 NWLR (pt 57) 510 where it was held that when a judgment is set aside on appeal and a rehearing is ordered the duty of the court rehearing the case is to consider the case afresh on the merits of each party’s case without referring to the previous judgment.
The procedure for rehearing a case set aside as a nullity on appeal is different from the rehearing of a case transferred from one judge to another judge of concurrent jurisdiction. In the case of rehearing after appeal, the hearing begins on a clean slate without reference whatever to the proceedings in the judgment declared a nullity. Where a case is transferred from one judge to another, all final decisions and orders of the previous court remain binding on the parties and can only be the subject of an appeal. The second judge has no jurisdiction to set aside directly or indirectly the decision of the former judge as that would mean sitting on appeal against the decision of his brother judge of concurrent jurisdiction.
It is indeed an abuse of court process for a party before the second judge to seek to revisit a matter already decided by the previous court. See Onyebuchi v. INEC (Supra). The exception however is where the issue to be determined is one involving the exercise of the discretion of the presiding judge. In other words, where the relevant rule of court puts the issue to be determined in the realm of the exercise of the discretion of the judge and the first judge in the exercise of his discretion determines the issue a particular way, the second judge could in the exercise of his own discretion go in a different direction.It thus becomes necessary to examine critically the relevant rules of court applicable here. They are Order, 11 Rules 3 and 5 Ondo State High Court (Civil Procedure) Rules 1987
Order 11 rule 3 provides:-
“All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly or severally, or in the alternative. Any 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”
Order 11 rule (5) (1) provides:
“If that before the hearing of a suit, that all the persons who may be entitled to or who may claim some shares 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 date, 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. In such case, the court shall cause to be issued a notice to such persons which shall be served in the manner provided by these rules for the service of a writ of summons or in such other manner as the court thinks fit to direct; and on proof of due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause provided that a person so served and failing to appeal within the time limited, by the notice for his appearance, may at any time before judgment in the suit apply to the court for leave to appear, and such leave may be given on such terms (if any) as the court shall think fit.”
It is apparent then, as shown in the underlined phrase “if it shall appear to the court”, that the trial court has the discretion at any time before hearing, once it appears to it that any of the conditions stated in the rule exists, to adjourn the case and direct that such persons be made plaintiff or defendants in the suit as the case may be. The import of this rule is that a trial court could at a stage refuse an application for joinder on the ground that none of the conditions in the rule exists.
But if subsequently other events occur in the case which show that the conditions now exist, the same trial judge could on a subsequent application now exercise his discretion to grant the application for joinder. In the same vein if the case is transferred to another Judge, notwithstanding that an earlier application had been refused by the first judge, if the conditions exist, the second judge could in the exercise of his discretion grant an application for joinder.
It is my humble view that the learned trial judge Sidiq J. misconceived the law in refusing the application for joinder brought before him by the appellant on the ground that it constitutes an abuse of court process. At the time the appellant made the first application for joinder before Odunwo J. the defendants had not filed their statement of defence, all that was before the Judge was the statement of claim. All the averments in the appellant’s affidavit in support of the application for joinder were denied by the 1st respondent in his counter affidavits. Odunwo J. pointed out in his ruling that the defendants who were also respondents in the application for joinder did not file any affidavit to confirm or deny applicant’s contention. All the learned judge had to work with were the writ of summons and the statement of claim. After thorough examination of those processes, Odunwo J. came to the conclusion that the cause of action in the suit were:
1. Alleged payment of certain sums of money by the plaintiff into the 1st defendant’s account No. 036-000-4445 at Afribank which account is owned and operated solely by the 2nd defendant and which amounts of money were to be held in trust by the 2nd defendant for the use and benefit of the plaintiff.
2. Alleged breach of trust and fraudulent conversion of the balance of Fifteen Million Naira still in the account being the plaintiff s money which the 2nd defendant refused to release/refund to the plaintiff on demand and
3. Interests and damages for breach of trust.
The learned trial judge, Odunwo J. simply did not see nor could he fathom the interest of the appellant that should justify his being joined as a co-defendant in the suit when the plaintiff who instituted the action vehemently opposed the application and maintained vigorously his stand that he had no claim against the appellant and that any information the appellant had was as a result of his being the bank manager of the bank. To confound the situation the application for joinder included one Mr. Bosun Adebiyi whose position was even worse as there was nothing to show any reason why he should be joined in the suit. Odunwo J. properly exercised his discretion to refuse the application. The situation was completely different in the application brought before Sadiq J. By then the defendants had filed their statement of defence. The statement of defence clearly set out the role played by the appellant in the entire transaction such as to make it obvious that the appellant is a person whose presence as defendant would be necessary in order to enable the court effectively and completely adjudicate or settle all the questions involved in the case. At this point therefore, the learned trial judge Sadiq J. had all the materials necessary to enable him exercise discretion different from that exercised by Odunwo J. The application was consequently not an abuse of court process. Issue 1 is resolved in favour of the appellant.
Issue 2:
Whether having regard to the circumstances and facts of this case, the trial judge was right to have refused to join the appellant as a co-defendant (Grounds 1, 2 and 3)
Mr Adeyanju for the appellant in his argument on this issue referred to Order 11 rule 3 and 5 of the High Court (Civil Procedure) Rules of Ondo State set out above and submitted that by those rules, any person who is interested in a matter could apply to the court to be joined either as a plaintiff or as a defendant. Under rule 5(1), the court could suo motu order the joinder of a party to a case either as plaintiff or as defendant if the court thinks that the presence of such a party could assist the court in effective determination of the case before it. Counsel referred to the case of Green v. Green [1987] 3 NWLR (Pt 61) 480 @498 where the Supreme Court laid down the guiding principles courts should follow in considering an application for joinder and submitted that the trial judge failed to consider these principles because of his wrong conclusion that the application was an abuse of court process. Learned Counsel further submitted that the learned trial judge acted upon a misconception of the law as it relates to 3rd party procedure by holding that a party brought into a case through a 3rd party application cannot subsequently be joined as a co-defendant in the case. Counsel submitted that the trial judge fell into grave error by ignoring binding authorities of the Court of appeal and the Supreme Court cases cited before him particularly Green v. Green (supra) and Espo Limited v. Pafab Enterprises Ltd (supra) and choosing instead to rely on a book written by Justice Ademola Bakare titled the Unified Rules of the High Court (Civil Procedure) in Nigeria ‘An Annotation’. Counsel argued that the learned trial judge failed to advert his mind to the relevant surrounding circumstances of the application such as the fact that the appellant had a counter-claim against the 1st respondent and consequently failed to exercise his discretion judicially and judiciously. Counsel urged us to interfere with the exercise of discretion by the learned judge and allow this appeal.
Mr. Ojopagogo counsel for the 2nd and 3rd respondents in his brief of argument reiterated the points argued by Mr. Adeyanju and finally submitted that with all the revelations in the affidavit in support of the motion for joinder, the trial court ought to have joined the third party as a party in this case. Counsel argued that there would have been no way the case would have been argued and determined effectively and efficiently without joining the third party as a defendant.
I have no doubt whatever that the learned trial judge misconceived the law when he said in his ruling at page 73 of the record of appeal:
“I am in total agreement with the submission of the learned counsel to the respondent that the 3rd party who is already a party cannot be joined as co-defendant any more. Justice Ademola Bakare in his book titled THE UNIFIED RULES OF THE HIGH COURT [CIVIL PROCEDURE] IN NIGERIA ‘AN ANNOTATION’ page 68 has this to say about a 3rd party proceedings “A third party proceedings is like a “counter-claim” in the sense that it has a separate life of its own, the third party proceeding already started will continue to finality even where the original action has been settled. The person served with the notice is of necessity a defendant vis-Ã -vis the person serving it upon him”
It is a misconception of the law to say that a 3rd party who is already a party cannot be joined as a co-defendant any more. In the case of Expo Ltd v. Pafab Ent. Ltd. [1999] 2 NWLR (P591) 449 @ 460, this court observed “The mere addition of a person as a third party to a suit does not ipso facto make him a defendant to the suit. He cannot defend the plaintiff s case nor can the plaintiff obtain judgment against him in the suit. If the plaintiff wishes to obtain judgment against a third party, he must apply to add him as a defendant. Also if the third party wishes to defend or counter-claim against the plaintiff he must apply to be added as a defendant. Otherwise all he is entitled to do is to admit or contest the claim against him by the defendant. In other words, the only way to make a third party responsible to the plaintiff or for the third party to make any counter-claim against the plaintiff is for him to be properly joined as a defendant. [Okafor v. A.C.B. Ltd (1975) 5SC 89 @103: Famuyiwa v. Folawivo (1973) 3 UILR 372 referred to.]”
The learned trial judge apparently took out of con the statement of the Supreme Court when in his ruling also at page 73 of the record of appeal he stated:
“The Supreme court on whether it is necessary to apply to join a person already made a party by a third party application held “It is an exercise in futility to join a person as a co-defendant in an action if he has already been made so in a third party application as in the instant case. See Mrs. Florence Omotayo Labode vs Dr. Godfrey Otubu & 1 or [2001] 7 NWLR (Pt. 712) 256 @ 277”
In Labode v. Otubu above, the appellant bought a property and gave the documents of title to a legal practitioner to process. The legal practitioner used the document as security for money advanced to him by the respondent. When the appellant found out what happened she sued the respondent for the return of her documents of title. She did not join the legal practitioner in the action. The respondent then took out a third party proceeding and thereby made the legal practitioner a third party in the suit. Much later the respondent filed an application to strike out the statement of claim on the ground that the proper parties were not before the court. The Supreme Court then held that the respondent himself having joined the legal practitioner as a 3rd party to the action could not be heard to complain that the proper parties were not before the court and for that reason to ask the trial court to strike out the statement of claim as it would have been an exercise in futility for the appellant after the respondent had joined the legal practitioner as a 3rd party to seek to join him as a co-defendant.
This clearly is no authority for a general principle that a 3rd party in a proceeding cannot subsequently be made a defendant in the suit. The point is that a third party is brought into a suit at the instance of the defendant. The defendant who is sued by the plaintiff takes this action when he has a claim against the third party for contribution, indemnity or other remedy or relief connected with the plaintiff’s claim against the defendant. The third party cannot defend the plaintiff’s suit or counter-claim against the plaintiff and the plaintiff cannot obtain judgment against him in the suit. For any of that to happen, the plaintiff or the third party must apply for the third party to be added as a defendant. It is therefore a complete misconception of the law to say that once a person is made a third party in a suit, he cannot thereafter be added as a defendant.
The learned trial judge having arrived at the wrong conclusions in these two fundamental issues viz: whether or not the application is an abuse of court of process and whether a person made a 3rd party in a suit can also be made a co-defendant, he did not proceed to consider the facts and circumstances of the case in order to decide whether or not to grant the application.
From the processes filed in this suit, particularly the defence put forward by the 2nd and 3rd respondents, it is obvious that the appellant is a necessary party to this suit.
The plaintiff/1st respondent claims that various sums of money were paid into the account of the 2nd respondent, a company account owned by the 3rd respondent in trust for him and his business associates; that the 2nd and 3rd respondents have failed on demand to return to him the balance of 15 Million Naira. The defendant in his statement of defence denies the claim and alleges that all the transactions in the account were personally handled by the appellant whom he introduced to the 1st respondent at his request to help him plan how to safeguard money he would make during his tenure as minister of education. The 2nd and 3rd respondents averred that the transactions were directly between the 1st respondent and the appellant and that all he (3rd respondent) did was to sign blank cheques for the appellant who directly made all the investments for the 1st respondent in his personal capacity and not as a staff of the bank. The plaintiff /1st respondent in paragraph 19 (b) of the statement of claim pleaded a copy of a fax message sent to him by the appellant containing a statement of account of funds passing through the 2nd respondent’s account No. 036-000-4445 (and how same were utilized) including the maturity profile of the said sum of Fifteen Million Naira invested in banker’s acceptance. It is certainly unusual and unethical that a bank manager would be sending to a person who is not the owner of the account details regarding the account if there was so special understanding between the parties as claimed by the 3rd respondent. All these facts were deposed to by the appellant in his affidavit in support of the application for joinder. The appellant will be unable to defend the case against the 1st respondent or make a counter-claim as he definitely wants to unless he is made a co-defendant in the suit. The appellant exhibited his proposed statement of defence in his affidavit in support of the application. These are factors the learned trial judge should have considered in exercising his discretion as to whether or not to grant the application. He did not because he misconceived the law on the matter and applied wrong legal principles. The trial judge was therefore wrong to have refused to join the appellant as a defendant in the suit. The interest of justice requires that the appellant ought to be joined. This issue is resolved in favour of the appellant.
In the circumstances this appeal succeeds. It is hereby allowed. The ruling of the lower court dismissing the application of the appellant to be joined as a co-defendant in this suit is hereby set aside. In its place the appellant, Elder S. A. Soyinka is hereby joined as 3rd defendant in this suit. The suit shall proceed to hearing accordingly. I award N20, 000 .00 costs to the appellant against the 1st respondent.
NWALI SYLVESTER NGWUTA, J.C.A.: I read in draft the lead judgment just delivered by my learned brother Iyizoba, JCA and I adopt the reasoning and conclusion therein.
The phrase “if it shall appear to the court” in Order 11 v. 5 (1) of the Ondo State High Court (Civil Procedure) Rules 1987 places the grant or refusal of the appellant’s application within the discretion of the trial Judge, subject to the judicious and judicial exercise of the discretion see Egwu v. Stephen Modunkwn (1997) 4 NWLR (pt 501) 574 pt 585, Odionye Ohanaka v. Edmund Achugana & Anor (1998) of NWLR (pt 58a) 37 pt 66.
Discretion in the judicial and legal con means equitable decision of what is just and proper under the facts and circumstances of a particular case guided by the principles of Law. See Artra Industries Nigeria Ltd v. Nigerian Bank for Commerce and Industries (1998) 4 NWLR (pt 546) 357 Act 381 (S.C), Doherty v. Doherty (1964), At NLR 299. It follows that the exercise of the judges discretion is not binding on another judge.
The trial court failed to appreciate that the appellant, having been arrested and charged to court in respect of the subject matter of the suit is a necessary party in the determination of the dispute.
It is surprising that non of the counsel to the parties in the lower court raised the obvious issue that the plaintiff’s case is tainted with corrupts practices, a matter that is apparent on the facts of the case. This is a case of the application of the principle of “Ex Turpi causa Non Oritur Actio” this principle is to the effect that a party does not have a right to enforce performance of an agreement founded on the consideration that is contrary to public interest.
It is a base cause, based on illegal transaction see Solanke v. Abed & Anor (1962) WRNLR 92, Kasumu v. Baba Egbe 14 WHCA 444. No court should give its aid to a cause tainted with a crime. The issue is not raised in the appeal but it ought to be mentioned.
For the above and the fuller reasoning in the lead judgment I also allow the appeal and abide by order for costs.
MOORE A. A. ADUMEIN, J.C.A.: I had the opportunity of reading in draft form the judgment just delivered by my learned brother, CHINWE IYIZOBA (JCA).
I agree with His Lordship’s reasoning and conclusion that this appeal is meritorious and it is hereby allowed.
The appellant is hereby joined as the 3rd defendant in Suit No: AK/8/2001 between DR. OLAIYA ONI (as plaintiff) against SAMDEK INVESTMENTS LTD and MR SAMIJEL HARIINA (1st and 2nd defendants) in the Akure Division of the High Court of Ondo State.
I abide with the order as to costs.
Appearances
J.I. ADEYANJU ESQFor Appellant
AND
1. TIMI YAYU ESQ
2. A.A. OJOPAGOGO ESQFor Respondent
