IFEANYICHUKWU OKONKWO V. MODE NIGERIA LIMITED & ANOR
In The Court of Appeal of Nigeria
On Thursday, the 14th day of March, 2002
EUGENE CHUKWUEMEKA UBAEZONU Justice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
IFEANYICHUKWU OKONKWO Appellant(s)
- MODE NIGERIA LIMITED
2. UNITED BANK FOR AFRICA PLC Respondent(s)
JOHN AFOLABI FABIYI, J.C.A. (Delivering the Lead Ruling): Vide his notice of motion dated 8th February, 2002, the plaintiff/appellant prayed for:-
“(a) Extension of time within which to apply for leave to appeal against only a part of the decision of Hon. J.C.N Ugwu – Chief Judge High Court of Enugu State, delivered on 26th July, 2000.
(b) Leave to appeal against only a part of the said decision. Extension of time within which to file the notice and grounds of appeal against only a part of the said decision, the time allowed by the statute to file such appeal has expired.
(c) Leave of the honourable court for the appellant/applicant to appeal in person to conduct his case in person/through representative agent”.
The applicant deposed to an affidavit of 24 paragraphs. Exhibits 1-10, both inclusive, were annexed.
A motion on notice dated 19th February, 2002 was filed on the same date on behalf of the third party/respondent. Therein, the third party indicated that it will apply that the plaintiff/applicant’s motion be struck out on the ground that he is a person aggrieved by the ruling of the High Court. The motion is supported by an affidavit of 7 paragraphs. One exhibit, marked CJA 1, was annexed.
In moving his application, the plaintiff/applicant placed reliance on his 24 paragraph affidavit in support as well as the 10 exhibits annexed by him. He referred to Section 343 (a) of the 1999 Constitution and Section 25 (2)(a) of the Court of Appeal Act, 1976. Mr. A. N. Anyamene, senior counsel for the third party/respondent, referred to exhibit 3 to plaintiff/applicant’s motion. He further referred to Order 12 Rules 10 and 12 of the High Court Rules of Anambra State, 1988 applicable to Enugu State. He pointed it out that the applicant has no interest in exhibit 3 and that exhibit 9 is a ruling staying the execution of the judgment contained in exhibit 3. To cap it, he maintained that vide exhibit CJA 1, the defendant/judgment creditor has discontinued execution.
Replying briefly, the applicant maintained that he is a party and that he was served.
I need to state it right away that by Section 243(a) of the 1999 Constitution heavily relied upon by the applicant, it is only an interested party that can make move to appeal. Refer to Military Governor, Ondo State v. Ajayi (1998) 3 NWLR (Pt.540) 27, Ogunbiyi v. Mustapha (1996) 4 NWLR (Pt.442) 337.
In Owena Bank (Nig.) Plc v. N.S.E. Ltd. (1997) 8 NWLR (Pt.515) 1 at Pp.11-12, 18-19, the Supreme Court laid it down that a person who has no legal function to perform or whose interest has expired or lapsed could not be a person aggrieved and therefore cannot appeal as a person interested. For an applicant to be entitled to appeal as “a person having an interest in the matter” under Section 222(a) of the 1979 of the Constitution; now Section 243 (a) of the 1999 Constitution, he needs to show that the order made affects his interest prejudicially. The interest referred to must be a legally recognisable interest. Refer to Ikonne v. Commissioner of Police, & Nnanna Wachukwu (1986) 4 NWLR (Pt.36) 473 at 503; IN Re: Ijelu (1992) 9 NWLR (Pt.266) 414.
The third party proceeding was between the defendant/respondent and the third party. Order 12, rule 12(1) of the High Court Rules, 1988 is here relevant. I reproduce same as follows:-
“12 (1)Where the case is tried, the court that tries the action may, at or after the trial, enter such judgment as the nature of the case may require for or against the defendant giving the notice or for or against the third party; and may grant to the defendant or to the third party, any relief or remedy which might properly have been granted if the third party has been made a defendant to a suit duly instituted against him by the defendant.”
It is clear and extant on the face of exhibit 3 attached to applicant’s motion that Ugwu, C.J, complied with this Rule of court by giving his judgment, in the main, as follows:-
“(i) The third party to wit United Bank for Africa Plc shall pay the sum of N13,700,000 in favour of the defendant/applicant being the amount owed. (other awards relate to interest and costs)
In Exhibit 9, the trial Chief Judge stayed the execution of his judgment. The applicant herein desires to appeal against part of the ruling contained in exhibit 9. It is clear that as far as the main judgment is concerned, he is not connected with it. He is not an interested party. He has no legal function to perform in respect of the judgment. He cannot meddle with it. The defendant/respondent in whose favour the judgment was entered and thereafter stayed, should be allowed to bear it’s cross. After all, it discontinued its action against the third party vide exhibit CJA 1. I say no more.
The plaintiff/applicant’s application is misplaced. And it is hereby dismissed. He is hereby to pay N2,000 costs to the third party/respondent.
EUGENE CHUKWUEMEKA UBAEZONU, J.C.A.: I have had the opportunity of reading in draft the ruling of my learned brother, Fabiyi, JCA. I agree with him that the application of Ifeanyichukwu Okonkwo should be dismissed. The application is a case of intermeddlesomeness in a matter that he is not and should not be interested. I therefore also dismiss the application. I make the same order as to costs as is made in the lead ruling.
SULE AREMU OLAGUNJU, J.C.A.: A preliminary objection was raised by learned Senior Advocate for the third party to the application by the applicant who is appearing for himself. In the application the applicant is seeking leave of this court for an extension of time to apply for leave to appeal ‘against only a part of the decision of (the) Chief Judge of Enugu State delivered on 26/7/2000’, leave to appeal and extension of time within which to file notice and grounds of appeal from the decision on the third party proceedings instituted by the defendant against the third party pursuant to suit NO.E/427/99 in which the applicant was the plaintiff.
It is necessary to give a summary of the antecedents of the application so as to ease an understanding of the issue involved. The applicant was the plaintiff in suit No. E/427/99 at the Enugu State High Court in which Mode Nigerian Ltd. was the defendant which in course of the proceedings, on 27/10/99, joined U.B.A. Plc as ‘the Third Party’. On 4/4/2000 judgment was entered for the plaintiff, the applicant herein, for N13,700,000 against the defendant and on 12/4/2000 the defendant obtained judgment against the third party in the same sum of N13,700,00. There followed a rash of motions by the third party.
In a motion dated 2/5/2000 and filed on 3/5/2000 the Third Party applied for the judgment given against her on 12/4/2000 to be set aside together with execution of that judgment. In another motion dated the same 2/5/2000 the Third Party applied to the Federal High Court to strike out the application for registration or to set aside registration of the same judgment in the Federal High Court for the purpose of obtaining a garinshee order against the third party. On 21/7/2000 the third party applied to withdraw her motion of 3/5/2000 which she superseded by another motion filed on the same 21/7/2000 praying the court to stay execution of the default judgment of 12/4/2000 entered against her pending the determination of her appeal against that judgment.
On 26/7/2000 in the proceedings headed ‘Suit No. 428/99, Contract Resources (Nig.) Ltd. v. Mode Nigeria Ltd. & Anor’. the Enugu State High Court heard the application of the third party filed on 21/7/2000 for withdrawal of her application of 3/5/2000, granted the prayer and dismissed the motion. In the same proceedings, the third party’s motion of 21/7/2000 for stay of execution of the judgment of 12/4/2000 given against her pending the determination of her appeal against the judgment was also heard and the prayer granted. The material part of the drawn-up order dated 26/7/2000 to cover the decisions on the two motions heard on 26/7/2000 reads:
“THIS COURT under Order 22 rule 7, of the High Court Rules, 1988 dismissed the motion on notice dated 2nd May, 2000 and filed on 3rd May, 2000. Praying this honourable court to set aside its judgment on 12th April, 2000. The court further ordered the stay of the judgment (sic) pending the determination of the appeal filed in this case.
THE COURT FINALLY ORDERED that the order of dismissal and stay also applies to suit No.E/427/99 as agreed by the parties.” (Italics mine)
Against the above factual backdrop, the preliminary objection by learned Senior Advocate for the third party is that the contest in the third party proceedings was between the defendant in the earlier action in which the applicant was the plaintiff and the third party who was joined in the earlier action by the defendant. He submitted that the proceedings of 26/7/2000 at the Enugu State High Court being confined to the claims in respect of the judgment given in favour of the Mode Nigeria Ltd., the defendant in the earlier action, against the third party in that action the applicant is a stranger to the proceedings as he has no interest in the matter and, therefore, without any right to appeal against any decision arising from those proceedings. He further contended that the relationship between the third party and the defendant in the action in which the third party was joined is made explicit by rules 10 and 12 of Order 12 of the Anambra State High Court Rules, 1988. The plaintiff in the earlier action being a stranger in the subsequent Third party proceedings he cannot be an interested person in an appeal from those proceedings he argued. He finally submitted that the applicant with no legal right in the proceedings of 26/7/2000 on stay of execution of judgment given against the third party on 12/4/2000 is, ipso jure, not entitled to leave to challenge that decision. The application for leave to appeal is incompetent, he concluded, and urged this court to strike out the application.
Replying to the preliminary objection the applicant who appealed for himself argued that his interest in the proceedings of the court below on 26/7/2000 is the concluding part of the drawn-up order on the decision of the court that says ‘the order of dismissal and stay also applies to suit No. E/427/99 as agreed by parties. The substance of the applicant’s complaints as reflected in the two grounds of appeal in the proposed notice of appeal annexed to the applicant’s motion as exhibit ’10’ is encompassed in paragraph 5, 6 and 7 of his affidavit supporting the application. In paragraph 6 he deposed to the judgment delivered against the third party on 12/4/2000 while in paragraph 7 he deposed that the judgment was registered in the Federal High Court for garnishment as a result of which an order nisi was issued on 3/5/2000. The thrust of his argument is summed up in paragraph 5 of the affidavit which reads:
“I know as a fact that the third party ‘Form’ 13A requires the third party, if he so wishes, to be heard on the question of dispute between the defendant/respondent and the plaintiff/appellant. This provision is mandatory and makes the plaintiff/appellant a very necessary party to the dispute between the defendant/respondent and the third party/respondent”. (Italics mine)
The applicant relied on sub-section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999, on who are entitled to exercise the right of appeal contending that he is the person aggrieved by the order made by the learned trial Judge as it affects his right in the judgment given in favour of the defendant in suit No.E/427/99 on 12/4/2000 which was registered for execution in the Federal High Court. The summary of the argument of the applicant is that making the order of 26/7/2000 without putting him on notice is a violation of his right of fair hearing which entitles him to complain against the decision as of right and that by staying the process of execution of judgment that had been put in motion in a court of co-ordinate jurisdiction with the Enugu State High Court the learned trial Judge acted without jurisdiction. On that notice, he urged this court to dismissed the preliminary objection and to grant his prayer for leave to appeal against part of the order of the Enugu State High Court made on 26/7/2000 affecting his interest.
As a general principle third party proceedings are basically a contest between the defendant in an action, on the one hand, and the person who is joined to the action at the instance of the defendant for the purpose of obtaining contribution, indemnity or other remedy or relief against that person called the third party, on the other hand. This is made intelligibly clear by the provision of rule 5 of Order 12 of the Anambra State High Court Rules, 1988, which reads:
“The third party shall, as from the date of the service upon him of the notice, be a party to the suit for the purpose of, and with the same rights in respect of, his defence against the claim made against him by the defendant and otherwise as if he had been duly sued in ordinary way by the defendant”. (Italics mine)
From the above provision as far as liability arising from an action is concerned, the obligation of the third party is to the defendant in the action which given the object of the joinder of the third party as stated in rule 1 of Order 12 is to enable the defendant to claim from the third party’s contribution, indemnity, or other remedy or relief that may arise from the action. It follows logically that in any action between the defendant and the third party known as ‘third – party proceedings’ the plaintiff in the earlier action in which the obligation of the third party arose cannot be a party.
Rule 5 of Order 12 of Anambra State High Court Rules, 1988, is substantially similar to rule 24 of Order 13 of the Civil Procedure Rules of the Lagos State High Court, 1972, which was interpreted in Okafor v. ACB Ltd. and Anor. (1975) 5 SC 89, where the position of parties in Third Party proceedings was examined by the Supreme Court. The court, per Fatai-Williams, JSC, as he then was, at page 100, explained that:
“…. the mere service of a third-party notice does not make the person on whom it is served a defendant to the main action but makes him only a defendant vis-a-vis the person serving the notice. In the main action, the rights of the plaintiff and the defendant are determined without reference to the defendant’s claim against the third party, but when those rights have been ascertained, it is then open to the person brought in as the third party to have all relevant dispute determined between him and the person serving the notice”.
Another facet of the third party proceedings came up far interpretation in Union Bank of Nigeria Ltd. v. Bisi Edionseri, (1988) 2 NWLR (Pt.74) 93, 104, where it was explained that the lis of the substantive action is different from that of the third party proceedings originating from it. The lis of the substantive action terminates as soon as the action is concluded by the trial court where there is no appeal against the decision on any material point canvassed at the trial but the lis of third party proceedings begins as soon as the statutory third party notice is served an the third party and outlives the substantive action. Though not particularly relevant to the present application yet it should be put on record for the purpose of amplification that the objects of the third party Rule which capture the essence of the proceedings were adumbrated by the Supreme Court in Kigo (Nig.) Ltd. v. Holman Bros. (Nig.) Ltd. & Anor. (1980) 5-7 SC 60,75; and Bank of Ireland v. Union Bank of Nigeria Ltd. & Anour. (1998) 10 NWLR (Pt.569) 178, (1998) 7 SCNJ 385,396 & 400.
It has been held that where a higher court in the hierarchy of courts has construed a rule of court which is in pari materia with the rule of a lower court that decision of the higher court is binding on the lower court in so far as the meaning of that rule of court is concerned” : See University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156, 167. Having shown that rule 5 of Order 12 of the Anambra State High Court Rules, 1988, is substantially similar to rule 24 of Order 13 of the Lagos State High Court (Civil Procedure) Rules, 1972, and are, therefore, in pari materia the interpretation of the latter rule by the Supreme Court in Okafor v. ACB Ltd. (supra), as regards the relationship of a defendant to the third party who, is joined by him vis-a-vis the plaintiff in the action from where the obligation of the third party arose is applicable to, the provision of the former rule.
Therefore, on the principle of stare decisis in interpreting rule 5 of Order 12 of the Rules of the court below, I am bound to, adapt the interpretation in Okafor v. ACB Ltd. (supra), as complemented by Union Bank of Nigeria Ltd. v. Bisi Edionseri (supra). That leads me to, the inescapable conclusion that the appellant being the plaintiff in the decision in Ifeanyichukwu Okonkwo v. Mode Nigeria Ltd. (supra), from which the obligation between the defendant and the third party arose the applicant qua the plaintiff in that earlier action is a stranger to the third party proceedings leading to the judgment entered in favour of the Mode Nigeria Ltd. against the third party on 12/4/2000. The law is res inter alios acta alteri nocere non debet, that is to say, a transaction between others does not prejudice one who was not a party to it. See Okunoren v. United Africa Co. Ltd. (1951) 20 NLR 25; Agu v. Atuagwu (1955) 21 NLR 83; and Okafor v. Obiwo (1978) 9-10 SC 115, 112. A fortiori, the lis between the applicant and the Mode Nigeria Ltd. as the defendant in suit No.E/427/99 having terminated on 4/4/2000 with the judgment entered for the applicant for N13,700,00 the third party proceedings leading to the recovery of that amount from the third party are entirely a matter between the Mode Nigeria Ltd. and the third party and so are the post-judgment proceedings culminating in the ruling and drawn-up order of 26/7/2000 on which the present application is predicated. In other words, the applicant, Mr. Ifeanyichukwu Okonkwo as the plaintiff in the action concluded on 4/4/2000 with judgment given in his favour has no locus standi to be heard in the third party proceedings arising from the earlier action. Consequently, the applicant’s contention in paragraph 5 of his affidavit that he is ‘a very necessary party to the dispute between the defendant/respondent and the third party/respondent’ flies in the face of all authorities on the matter. To be emphatic, the applicant cannot be a party of any of the three types known to law defined in Green v. Green (1987) 3 NWLR (Pt.61) 480, (1987) 7 SCNJ 255, 269, as either proper party ‘desirable party’ or ‘necessary party’, in the third party proceedings initiated by Mode Nigeria Ltd. in an action in which the applicant was the plaintiff.
As regard the concluding part of the drawn-up order made on 26/7/2000 which is the sting of the applicant’s grief, I do not consider the matter to be as worrisome as it is made to appear or to be insuperable without an appeal being taken personally by the applicant as it is being painted. Mode Nigeria Limited being the party directly affected is a party to the appeal in consequence of which matters were ordered to be kept in the status quo ante pending the determination of the appeal. It is not futile to hope that she will take care of her interest.
However that may be, in the final analysis, learned Senior Advocate for the third party is on the strong wicket that the applicant is a stranger to the third party proceedings in which he has no locus standi and that the application is, ipso facto, adventurous as a calculated attempt to fish in trouble waters. Therefore, I uphold the preliminary objection. In consequence, I agree with the leading ruling that the application is incompetent and I strike it out. I abide by the order for costs made in the leading ruling.
Preliminary objection upheld. Application is struck out.
Applicant in personFor Appellant
A.N. Anyamene SAN (with him,
M.O. Nwagbo (Mrs) and N.Uko (Mrs)For Respondent