FIRST INLAND BANK PLC. V. CONSOLEX LEGAL PRACTITIONERS & ORS
(2013)LCN/5935(CA)
RATIO
“In addition, reasonable cause of action is not determined by the court scrutinising or examining the statement of defence, counter affidavits, exhibits or other materials furnished by the defence. It is decided solely on the face of the statement of claim, that is (i.e.) whether looking at a glance on the surface of the statement of claim it establishes a case against the defendant that might succeed or a case that is not hopeless – see NICON Insurance Corporation V. Olowofoyeku (2006) 5 NWLR (pt. 973) 244 at 257, Ikenne Local Government v. West African Portland Cement Plc (2012) All FWLR (pt.642) 1747 at 1771, Ibrahim v. Osim (1988) 19 NSCC (pt.1) 1184.” Per IKYEGH, J.C.A.
“It is settled that jurisdiction is determined on the writ and/or statement of claim, not on the statement of defence and/or counter affidavits and exhibits attached thereto by the adverse party – see Yalaju – Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (pt. 145) 422 at 441 per the lead judgment of Karibi-Whyte, J.S.C., (as he was) thus – “Jurisdiction is determined by the claim of the Plaintiff”. See again Barclays Bank v. C.B.N. (1976) 6 S.C. 175, Abia State Transport Corporation and Ors. V. Quorum Consortium Ltd. (2009) 4 SCNJ 1, Oduko v. Government of Ebonyi State (2009) 4 SCNJ 76, Justice Elelu-Habeeb and Anor. v. Attorney General of the Federation and Ors. (2012) ALL FWLR (pt.629) 1011 at 1047.” Per IKYEGH, J.C.A.
“Further, no matter how obvious or clear an issue may appear to be, once it is raised by the court itself the parties concerned with the litigation must be given a chance to react to it to avoid causing miscarriage of justice, which the appellant had shown was caused to her in the case in hand -see Araka v. Ejeagwu (2001) WRN 1 or (2000) 15 NWLR (pt.672) 684, Adeosun v. Babalola (1972) 1 All NLR (pt.2) 120 at 126, Registered Trustees of Apostolic Church, Lagos Area v. Akindele (1967) NWLR 263), Ogundoyin v. Adeyemi (2001) 33 WRN 1 or (2001) 13 NWLR (pt.730) 403, Ogembe v. Usman (2011) 17 NWLR (pt. 1277) 638 at 656 and the series of cases cited on the point in the appellant’s brief of argument.” Per IKYEGH, J.C.A.
“In my respectful opinion, it is the cause of action, not the defence to the action, (be it statement of defence and/or counter affidavit), that determines whether a defendant is a necessary or unavoidable party to the action whose absence would render the action impotent and ineffectual. Prima facie the statement of claim referred to (supra) constituted an action for defamation against the 1st respondent as the pivotal defendant whose presence in the suit is necessary or essential for the effectual and final determination of the suit. See Uku and Ors. v. Okumagba and Ors. (1974) 3 SC 35 at 63 thus – “As was observed by Devlin J. in Amon v. Raphael Tuck and Sons Ltd. (supra) (1956) 1 All E.R. 273 at 279) the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party”. See further Green v. Green (supra) at 493, Balonwu v. Ikpeazu (supra) at 516, Chief of Army Staff v. Lawal (2012) 10 NWLR (pt.1307) 62 at 70, Umar v. Onikata (1999) 3 NWLR (pt.596) 558 at 575. The question whether a person is a necessary party to an action was held by the Supreme Court in Uku v. Okumagba (supra) at page 63 to be- “… purely a question of jurisdiction”. See also Madukolu v. Nkemdilim (1962) 2 NSCC 374, Cotecna International Ltd. v. Churchgate (Nig.) Ltd. (2011) All FWLR (pt.575) 252 at 286.” Per IKYEGH, J.C.A.
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of February, 2013
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The interlocutory appeal is against the ruling of the High Court of Lagos State sitting in the Lagos Judicial Division (the court below), whereby it struck out the name of the 1st respondent as a party to the suit and ordered the joinder of the 3rd respondent as the 1st defendant.
Concisely stated, by a writ of summons and statement of claim and a deposition filed on the 5-7-2007, the appellant claimed against the 1st and 2nd respondents’ damages for a libel. At the close of pleadings, and in the course of pre-trial conference, the 1st respondent filed an application on notice seeking to strike out her name from the suit on ground of misjoinder. The appellant opposed the application with a counter affidavit and a written address, to which the 1st respondent filed a reply affidavit and written address.
The court below heard the application on the merit and ruled that the 1st respondent was not a necessary party to the suit; that the appellant’s case did not disclose a reasonable cause of action against the 1st respondent; and that the 1st respondent cannot be held liable for the admitted acts of her client. The court below then struck out the 1st respondent’s name from the suit and ordered the joinder of the 3rd respondent as the 1st defendant in the suit.
Not satisfied with the ruling, the appellant appealed against it by a notice of appeal containing three grounds of appeal filed on 9-6-09. The 1st respondent raised and argued a preliminary objection that grounds 1 and 2 of the notice of appeal are on facts or mixed law and facts arising from an interlocutory ruling of the court below requiring leave of Court to appeal and leave having not been obtained, the said grounds of appeal and the issues formulated in respect of them together with the arguments advanced thereon are incompetent and must be discountenanced following section 241(1) and (2)(c) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) and the cases of Akinsanya v. U.B.A. (1986) 4 NWLR (pt.35) 273, Mohammed v. Olawunmi (1990) 2 NWLR (pt.135) 458, Owor v. Asuk (2008) 16 NWLR (pt.1112) 113, Igunbor v. Afolabi (2001) 1 NWLR (pt.723) 148 at 155, C.C.C.T.S. Ltd. v. Ekpo (2008) 6 NWLR (pt.1083) 362.
The preliminary objection was addressed in the reply brief filed on 10-6-10 to the effect that grounds 1 and 2 of the notice of appeal are on the application of the law to settled or admitted facts and arose from a decision of the court below that determined to finality the rights of the parties in the misjoinder and/or joinder of the 1st respondent and the 3rd respondent respectively in the suit which do not require leave to appeal, therefore the preliminary objection should be overruled citing in support the cases of Attorney General of Kwara State v. Olawale (1993) 1 SCNJ 208 at 219, Nwadike v. Ibekwe (1987) 12 SC 14 at 36, Iwueke v. Imo Broadcasting Corporation (2005) 17 NWLR (pt.955) 447 at 472 – 473, Fumudoh v. Aboro (1991) 9 NWLR (pt. 214) 210 at 227 228, Ifediorah v. Umeh (1988) 2 NWLR (pt.74) 5 at 15 – 16, Owoh v. Asuk (2008) 16 NWLR (pt.1112) 133 at 128, Igunbor v. Afolabi (2001) 1 NWLR (pt.723) 148 at 165, and section 241(b) of the 1999 Constitution.
The 1st respondent filed a notice of intention to contend that the decision should be affirmed on grounds other than those relied upon by the court below to wit – that upon the consideration of the pleadings, the affidavits and the documentary evidence placed before the court below, especially Exhibit C1 attached to the 1st respondent’s affidavit seeking for the name of the 1st respondent to be struck off the suit, coupled with the admission by the 3rd respondent that she issued Exhibit A in the name of the 1st respondent, who merely wrote it without publication, the court below was right to hold that the 1st respondent was not a necessary party to the suit and the order striking out her name should be affirmed.
A brief of argument was filed on 27-2-11 by the appellant identifying these issues for determination –
“Whether or not the 1st Respondent is necessary party in the suit.
Whether the order of the learned pre-trial judge directing the joinder of the 3rd Respondent as the 1st Defendant in the suit is justified in law.”
After referring to the reliefs endorsed in the statement of claim against the 1st and 2nd respondents on pages 8 – 9 of the record of appeal (the record) which are in the nature of declarations, injunctive orders, and damages, as well as all the paragraphs of the statement of claim and the statements on oath filed by the appellant, the appellant submitted that the allegations in the suit are directed at the 1st respondent.
The appellant further referred to the 1st respondent’s statement of defence and the statement on oath on pages 82 – 86 of the record, the appellant’s reply to statements of defence on pages 253-254 of the record, the further written statement on oath on pages 272 – 273 of the record and the 2nd respondent’s statement of defence with the front-loaded processes on pages 124 – 133 of the record to submit that the processes filed by the parties to the action joined issues on whether there was a publication; whether the publication was malicious; and whether the 1st and 2nd respondents were liable as per the endorsement on the statement of claim.
The appellant’s brief observed and contended that, whilst the 1st respondent admitted writing the letter which was published in Thisday Newspaper, they contended that they were not responsible for its publication in the Thisday Newspaper, whereas, the 2nd respondent stated it was the 1st respondent that placed the advertorial.
Based on the foregoing background, the appellant argued that the issue, whether or not the 1st respondent should be held liable for the acts of the 3rd respondent was not to be determined at that stage of the proceedings, but at the conclusion of trial vide the case of Odutola Holdings Ltd. & Ors. V. Kunle Ladejobi & Ors (2006) 12 NWLR (pt.994) 321 at 346-347, University Press Ltd. v. I. K. Martins Ltd. (200?) FWLR (pt.5) 722 at 732, to the effect that substantive issues should not be decided at interlocutory stage of the proceedings.
It was also argued that by Order 13 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004 (the rules of the court below), a person may be joined as a defendant in an action in Lagos State where there is an allegation that a right to a relief exists against the person, therefore the 1st respondent was properly made a party to the suit, having been shown to be a necessary party to the suit on the basis of the decision in Green v. Green (1987) 3 NWLR (pt.61) at p.493.
It was submitted that, although the 3rd respondent’s Third Party processes admitted the letter was written by the 1st respondent at her instance, the said admission is not sufficient to discharge the 1st respondent at that stage of the proceedings because declarations are not made on the basis of admissions but on evidence vide Buhari v. Obasanjo (2005) 2 NWLR (pt. 910) p. 241 and Ajao v. Ademola (2005) 3 NWLR (pt.913) p. 636.
The appellant went on to submit that in striking out the name of the 1st respondent, the court below suo motu held that the appellant had no reasonable cause of action against the 1st respondent, when the ground upon which the 1st respondent’s name was sought to be struck out from the suit was misjoinder contrary to the cases of Obolur v. Okoro (2001) 8 NWLR (pt.714) pg.25 at 32, University of Calabar v. Essien (1996) 10 NWLR (pt.447) pg.225 at 247 – 248, Abimbola v. Abatan (2001) 4 SC (pt.1) 64 at 73/74, Ugo v. Obiekwe (1989) 1 NWLR (pt.99) 566 at 581 Dairo v. U.B.N. Plc (2007) All FWLR (pt.392) 1846 at 1879 – 1880.
It was contended on the second issue that the court below ordered the joinder of the 3rd respondent as the 1st defendant in the suit on the ground that the 3rd respondent admitted causing the publication of the letter in the Thisday Newspaper when the parties did not apply for the joinder of the 3rd respondent as the 1st defendant in the suit, nor were the parties given the opportunity to argue for or against the said joinder and, having failed to order counsel to address it on that issue, the court below caused a miscarriage of justice to the appellant and the appeal be allowed vide Ugo v. Obiekwe (1989) 1 NWLR (pt.99) 556, Ejezie & Anor. V. Anuwu & 3 ors. (2008) All FWLR (pt.422) 1005 at p.1049, Ekpenyong & Ors. v. Nyong & Ors. (175) 2 SC 71 at 80, Union Beverages Ltd. v. Owolabi (1988) 2 NWLR (pt.68) 128, Mobil Oil (Nigeria) Ltd. vs. FBIR (1977) 3 SC 53 at 74, Balonwu v. Ikpeazu (2005) 13 NWLR (pt.942) 479 at 516.
The 1st respondent then submitted this issue for determination in the appeal:-
“Whether, from the state of the Pleadings and the affidavit evidence before the Court below, the 1st Respondent was property struck-out as a party to the Appellant’s Suit. (This issue is formulated from Grounds 1 and 2 in the Appellant’s Notice of Appeal and Ground 1 of the Respondent’s Notice)”.
The 1st Respondent adopted issue 2 formulated in the appellant’s brief and proceeded to argue on the first issue that the heart of the 1st respondent’s application in the court below seeking to have her name struck out from the suit was based on the assertion that she did not cause the publication complained of by the appellant and that based on the settled position of the law that it is only a party who has published the words complained of by the claimant that can be properly joined as a defendant in an action for defamation, the 1st defendant was not a necessary party to the suit following the cases of Omega Bank v. Government of Ekiti State (2007) 16 NWLR (pt. 106) 445 at 466 E – F, Adefarasin v. Deyekh (2007) 11 NWLR (pt.104) 89 at 118.
The 1st respondent also argued that from the state of the respondents’ pleadings and the unchallenged reply affidavit of 1st respondent absolving the 1st respondent of responsibility for publication of the alleged libel, the said unchallenged affidavit evidence was deemed admitted by the 2nd and 3rd respondents and the court below rightly acted on it to hold that the 1st respondent was not a necessary party to the suit vide Ajomale v. Yaduat (No.2) (1991) 5 NWLR (pt.191) 266 at 282 – 283.
It was finally canvassed that the issue of the reasonableness of the action was argued by the parties in the course of considering the application whether the 1st respondent was a necessary party to the suit and that, even if the issue was raised suo motu by the court below, the appellant did not establish miscarriage of justice from the consideration of the issue by the court below, therefore the discretion exercised by the court below to decide the issue of the reasonableness of the action while considering the question of joinder of the 1st respondent in the suit under Order 13 rule 16(2) of its rules was judiciously and judicially exercised and should not be interfered with by this Court following the case of Babatunde V. P.A.S. and T.A. (supra) and the appeal be dismissed.
The decision of the court below was premised on an application for misjoinder of the 1st defendant, now 1st respondent in the appeal. The court below ruled that the 1st respondent was not a necessary party to the suit and struck off her name from the suit and ordered the joinder of Zumex Nigeria Ltd. as 3rd defendant in the suit. In respect of that particular issue of joinder and/or misjoinder of parties the decision of the court below thereat was final. None of the parties will be entitled to go back to the court below to revisit the matter of misjoinder and/or joinder either by way of review or setting aside.
The said decision therefore determined the rights of the parties in that particular matter finally and qualified as a final decision entitling the appellant to appeal as of right to this Court pursuant to section 241(1)(a) of the 1999 Constitution. See Igunbor (supra) at page 165 thus-
“The test has been to look at the nature of the order made rather than the nature of the proceedings resulting in the order. What has to be considered is whether the order has finally determined the rights of the parties in the proceedings in issue appealed against and not whether the rights of the parties in the substantive action have been finally disposed of…
The instant case as rightly submitted by appellant’s counsel is an interlocutory motion by the appellant to be joined as co-administrators with the respondents. The order of the learned trial Judge granting the application determined the rights of the parties in the application. It is an order which did not require something else to be done in answer and without any further reference to itself or any other court of co-ordinate jurisdiction. The order of the learned trial Judge is therefore a final order. An appeal on the final order is of right under section 241 (a) of the 1999 Constitution.”
See also Falola v. Union Bank of Nigeria Plc (2005) 2 S.C. (pt.11) 62 at 75 -77, where the Supreme Court cited with approval Igunbor (supra).
Grounds 1 and 2 of the notice of appeal on pages 289 – 291 of the record are complaints on the application of the law to settled facts and wear the toga of grounds of law which did not require leave of the Court before urging them on appeal following the cases of Attorney General of Kwara State v. Olawale (supra), Nwadike v. Ibekwe (supra), Ononuju v. Attorney General of Anambra State (2009) 5 SCNJ 31 at 45 – 46 and section 241(b) of the 1999 Constitution cited in the appellant’s reply brief settled by her learned senior counsel, Dr. Nwobike.
In my considered opinion, there is no merit in the preliminary objection. I hereby overrule it and proceed to determine the appeal on the merit. Having regard to the three grounds of appeal on pages 289 – 291 the record, it appears to me that the issues formulated by the appellant are apposite for the determination of the appeal. I hereby follow the said issues in the discourse.
Grounds 1 and 2 tally with the first issue for determination formulated by the appellant. On the face of the statement of claim of the appellant on pages 4 – 9 of the record, the 1st respondent was featured as the author of the alleged libelous document with paragraphs 6 – 16 thereof averring in particular and in nutshell, that the alleged libelous document, the contents of which are pleaded in paragraph I of the statement of claim, was signed by one Mr. Okoye, 1st employee of the 1st respondent, and was made known to the “world through the published and circulated printed newspaper version and on the internet at www.thisdayonline.com“. (See paragraph 10 of the statement of claim on pages 6 – 7 of the record).
The said statement of claim ex-facie disclosed the authorship of the alleged libelous material and its publication which, according to the statement of claim (on face value), was caused by the 1st respondent. So all the ingredients of an action for libel appear on the surface of the statement of claim against the 1st respondent who was portrayed by the allegations in the statement of claim to be responsible for the alleged libel.
See Savage v. Uwaechia (1972) 1 ALL NLR (pt.1) 251 at 257 on components of complete cause of action.
The reliefs sought by the appellant against the 1st respondent, as the paramount or prime defendant sued by her at the court below, are stated in paragraph 18 of the statement of claim thus –
“The claimant claims against the 1st Defendant as follows:
(i) The sum of N1 billion (one billion naira) as damages for the defamation of the claimant by its publication titled “CASE OF FRAUD AND CONVERSION OF CUSTOMER’S MONEY AGAINST FIRST INLAND BANK PLC” published in the Thisday Newspaper of April 19th, 2007.
(ii) AN ORDER directing the 1st Defendant to tender a letter of apology to the claimant and the publication of same in three (3) widely read national newspapers including Thisday Newspaper and the Guardian Newspaper with the same prominence as the aforesaid defamatory publication”.
It shows from the allegations in the statement of claim and the reliefs sought therein (supra) that the appellant made the 1st respondent an indispensable party that is essentially needed for the maintenance of her action at the court below. See Awoniyi v. Registered Trustees of AMORC (2000) 10 NWLR (pt.676) 522, Alimi v. Aderonye (2011) AII FWLR (pt.580) 1368 at 1377(D).
In my respectful opinion, it is the cause of action, not the defence to the action, (be it statement of defence and/or counter affidavit), that determines whether a defendant is a necessary or unavoidable party to the action whose absence would render the action impotent and ineffectual. Prima facie the statement of claim referred to (supra) constituted an action for defamation against the 1st respondent as the pivotal defendant whose presence in the suit is necessary or essential for the effectual and final determination of the suit. See Uku and Ors. v. Okumagba and Ors. (1974) 3 SC 35 at 63 thus –
“As was observed by Devlin J. in Amon v. Raphael Tuck and Sons Ltd. (supra) (1956) 1 All E.R. 273 at 279) the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party”.
See further Green v. Green (supra) at 493, Balonwu v. Ikpeazu (supra) at 516, Chief of Army Staff v. Lawal (2012) 10 NWLR (pt.1307) 62 at 70, Umar v. Onikata (1999) 3 NWLR (pt.596) 558 at 575.
The question whether a person is a necessary party to an action was held by the Supreme Court in Uku v. Okumagba (supra) at page 63 to be-
“… purely a question of jurisdiction”.
See also Madukolu v. Nkemdilim (1962) 2 NSCC 374, Cotecna International Ltd. v. Churchgate (Nig.) Ltd. (2011) All FWLR (pt.575) 252 at 286.
It is settled that jurisdiction is determined on the writ and/or statement of claim, not on the statement of defence and/or counter affidavits and exhibits attached thereto by the adverse party – see Yalaju – Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (pt. 145) 422 at 441 per the lead judgment of Karibi-Whyte, J.S.C., (as he was) thus –
“Jurisdiction is determined by the claim of the Plaintiff”.
See again Barclays Bank v. C.B.N. (1976) 6 S.C. 175, Abia State Transport Corporation and Ors. V. Quorum Consortium Ltd. (2009) 4 SCNJ 1, Oduko v. Government of Ebonyi State (2009) 4 SCNJ 76, Justice Elelu-Habeeb and Anor. v. Attorney General of the Federation and Ors. (2012) ALL FWLR (pt.629) 1011 at 1047.
In my considered opinion, the court below erred by referring to the averments in the statement of defence and the counter affidavits of the 1st and 3rd respondents together with the Exhibits brought by the defence into the dispute to hold that the 1st respondent was not a necessary party to the action, when the averments in the statement of claim of the appellant made the 1st respondent a necessary party to the action. I would resolve the first issue in favour of the appellant.
Page 239 of the record contains the motion paper filed by the 1st respondent at the court below with this solitary substantive prayer –
“(1) An Order striking-out the name of the 1st Defendant/Applicant from this suit, on grounds of misjoinder”.
There was no other application before the court below. The tail-piece of the ruling of the court below on page 288 of the record indicated the court below decided on its own, without affording the appellant the opportunity to be heard, that the 3rd respondent was improperly joined as a Third Party instead of defendant and ordered that the 3rd respondent be substituted as a defendant in the suit. I find the said approach of the court below, with deference, unsettling. Because parties are bound by the substantive prayer(s) stated in the application or motion paper – see Commissioner for Works Benue state v. Devcon (1988) 7 SCNJ (pt. 1) 1 at 11, Okoya v. Santili (1990) 3 S.C. (pt.11) 1 at 35 and 37 – 38.
Also, a court of law does not award to a party what was not claimed or prayed for – Ekpenyong v. Nyong (supra), Union Beverages Ltd. v. Owolabi (supra), Elumeze v. Elumeze (1969) 1 All NLR 311, Chief Registrar v. Vamos (1976) 1 S.C. 33 at 40 – 41, Obioma v. Olomu (1978) 3 S.C. 1 at 7 -8.
Further, no matter how obvious or clear an issue may appear to be, once it is raised by the court itself the parties concerned with the litigation must be given a chance to react to it to avoid causing miscarriage of justice, which the appellant had shown was caused to her in the case in hand -see Araka v. Ejeagwu (2001) WRN 1 or (2000) 15 NWLR (pt.672) 684, Adeosun v. Babalola (1972) 1 All NLR (pt.2) 120 at 126, Registered Trustees of Apostolic Church, Lagos Area v. Akindele (1967) NWLR 263), Ogundoyin v. Adeyemi (2001) 33 WRN 1 or (2001) 13 NWLR (pt.730) 403, Ogembe v. Usman (2011) 17 NWLR (pt. 1277) 638 at 656 and the series of cases cited on the point in the appellant’s brief of argument. The second issue has substance and is, also, hereby resolved in favour of the appellant.
The court below fell into the temptation of deciding the case on the merit at the interlocutory stage of the proceedings when it held on page 288 of the record that –
“Where a solicitor with the client’s instructions write a letter, the client will be liable… It also follows that letters written by a legal practitioner on behalf of his client to a 3rd party is privileged…
In the final analysis it is my view that the claimant does not have a reasonable cause of action against the 1st Defendant”.
I think, with deference, that the court below went too far by holding the way it did in the passage quoted above. By holding so, the court below erroneously prejudged the case at the interlocutory stage of the proceedings without viva voce and/or documentary evidence to support it contrary to the cases of Odutola Holdings Ltd. and Ors. v. Ladejobi and Ors. (supra) at 346 – 347, University Press Ltd. v. Martins Ltd. (supra) at 732.
In addition, reasonable cause of action is not determined by the court scrutinising or examining the statement of defence, counter affidavits, exhibits or other materials furnished by the defence. It is decided solely on the face of the statement of claim, that is (i.e.) whether looking at a glance on the surface of the statement of claim it establishes a case against the defendant that might succeed or a case that is not hopeless – see NICON Insurance Corporation V. Olowofoyeku (2006) 5 NWLR (pt. 973) 244 at 257, Ikenne Local Government v. West African Portland Cement Plc (2012) All FWLR (pt.642) 1747 a t1771, Ibrahim v. Osim (1988) 19 NSCC (pt.1) 1184.
I conclude that the appeal is meritorious. I allow it. The respondent advocated by notice that the decision of the court below be affirmed on grounds other than those relied upon by the court below; but the said notice utilised materials or processes from the defence, especially Exhibits A and C1, which are not germane to the consideration of the issues of joinder and misjoinder of parties canvassed before the court below. Nor can the said materials or processes be extended for use in determining the issue of reasonable cause of action not argued by the parties before the court below. In the circumstance, I cannot give effect to the said notice.
Having allowed the appeal, I believe the appropriate order to make, which I hereby make, is the setting aside of the order of the court below striking out the 1st defendant’s name from the suit and making the 3rd respondent 1st defendant in the suit. Also, I order the case to be heard before another learned Judge of the High Court of Justice of Lagos State as the court below (Taiwo, J.) prejudged the substantive case respecting the 1st respondent’s liability at the interlocutory level of the proceedings. Accordingly, I remit the case to the learned Chief Judge of Lagos State for assignment to another learned Judge of the state for hearing. Parties to bear this costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the judgment just delivered by my learned brother, Ikyegh, JCA, I agree with the reasoning and conclusion reached therein, to the effect that the appeal is meritorious.
Unhesitatingly, I hereby allow the appeal, and accordingly set aside the order of the court below striking out the name of the 1st defendant from the suit (LD/847/2007). I abide by the consequential order remitting the suit to the Chief Judge of Lagos State for reassignment to another judge, other than Taiwo J. for hearing.
Parties to bear their respective costs.
RITA NOSAKHARE PEMU, J.C.A.: I have read before now, the Judgment just delivered by my brother JOSEPH SHAGBAOR IKYEGH J.C.A. and I agree with the reasoning and conclusions, and I adopt same.
I allow the appeal and I subscribe to the consequential order made in the lead judgment inclusive of the order as to costs.
Appearances
MR. J. NWOBIKE, S.A.N, (WITH MESSRS. Z. KELANI AND K. GBOLAHAN)For Appellant
AND
MR. O. OMOTOSHO (WITH MRS. I. ADEOBA AND MISS A. OGUNDE)
MISS T. U. OKWUMEFor Respondent
