KATOL INVESTMENT LIMITED v. TAJ DEVELOPMENT COMPANY LIMITED & ORS
(2018)LCN/12054(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of November, 2018
CA/L/581/2006
RATIO
ACTION: A CAUSE OF ACTION
“A cause of action, simply put, means a fact or combination of facts which give(s) rise to a right to a legal action or the right to sue in a Court of law for a judicial remedy. See Egbue v. Araka (1988) 7 SC (Pt. III) 98, (1988) 1 NWLR (84) 598; Adimora v. Ajufo (1988) 3 NWLR (80) 1, (1988) LPELR-182 (SC); Akilu v. Fawehinmi (No.2) (1989) 2 SC (Pt. II), 1, (1989) 2 NWLR (102) 122; Owodunni v. Reg. Trust, C. C. C. (2000) 6 SC (Pt. III) 60, (2000) 10 NWLR (675) 315 @ 365. A reasonable cause of action, on its part, means simply, as a cause of action which, when the assertions in the Statement of Claim are considered, has some chance of success.” PER MOHAMMED LAWAL GARBA, J.C.A.
COURT AND PROCEDURE: PARTY TO A SUIT
“Any party or person whose presence is crucial and fundamental to the resolution of a case before the Court is an indispensable and a necessary party who should or must be made a party to the action. See Rinco Constr. Co. Ltd v. Veepee Ind. Ltd (supra); Oloriode v. Oyebi (1984) 1 SCNLR, 390; Awoniyi v. Reg. Trustees of AMORC (2000) 10 NWLR (676) 522, (2000) 6 SC (Pt. 1) 103; Buhari v. Yusuf (2003) 4 WRN, 124; Mobil Oil Plc v. Drexel Energy & N. R. Ltd (2004) 1 NWLR (851) 142; B.O.N. Ltd v. Saleh (1999) 9 NWLR (618) 331; Uku v. Okumagba (1973) 3 SC, 35; Anabaonye v. Nwakahe (1997) 46 LRCN, 185.” PER MOHAMMED LAWAL GARBA, J.C.A.
Justice
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
Text
KATOL INVESTMENT LTD Appellant(s)
AND
1. TAJ DEVELOPMENT CO. LTD
2. UAC OF NIGERIA PLC
3. OLATUNDE AYENI
4. UACN PROPERTY LTD
5. MALLAM ALIU Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
By Writ of Summons and Statement of Claim dated 28th April, 2003 and filed at the Lagos State High Court Ikeja, (High Court) the Appellant sued the Respondents for trespass and claimed the following reliefs against them: –
1. A declaration that the invasion and partial demolition of the buildings and premises in Plaintiffs possession at No. 1, Sobo Arobiodu Street, Ikeja, Lagos by the Defendants and/or their agents on 25th and 26th April, 2003 is illegal and unlawful.
2. An order of injunction restraining the Defendants whether by themselves, their servants, agents, privies and otherwise however from further trespassing, invading, going into the premises, demolishing and/or interfering in any manner whatsoever and howsoever with the Plaintiffs possession (except under a lawful order of Court) of the buildings and premises at No. 1 Sobo Arobiodu Street, Ikeja, Lagos
3.Damages in the sum of 50,000,000.00
4.Costs of this action in the sum of 2,000,000.00.
The facts upon which the claims were premised are that the Respondents, with their agents, mobile policeman, thus, etc., illegally, wantonly and without any basis whatsoever, invaded the Plaintiffs premises and trespassed thereon at No. 1 Sobo Arobiodu Street, Ikeja, Lagos.
In paragraphs 2-6 of the Statement of Claim, the Appellant described the Respondents individually, thus: –
2. The 1st Defendant is a private limited liability company registered in Nigeria with office within the jurisdiction of the Court.
3. The 2nd Defendant is a public limited company registered in Nigeria with its office at Niger House, 1-5 Odunlami Street, Lagos.
4. The 3rd Defendant is a public limited company registered in Nigeria with its office at Niger House, 1-5 Odunlami Street, Lagos.
5. The 4th Defendant is a Lawyer and a director of the 1st Defendant company and also its solicitor.
6. The 5th Defendant is a director of the 1st Defendant company.
In the course of the pre-trial sessions, the 4th and 5th Respondents filed a preliminary of objection on 20th February, 2006 and prayed that their names be struck out of the suit on the ground that no reasonable cause of action was disclosed against them and they are neither proper, desirable nor necessary parties to the action. A nine (9) paragraphs Affidavit was deposed to in support of the objection and the Appellant filed a ten (10) paragraphs Counter Affidavit to oppose the objection and after hearing learned Counsel for parties, the High Court in a Ruling delivered on 4th July, 2006, upheld the objection and struck the names of the 4th and 5th Respondents out of the suit.
Aggrieved by the decision on the objection, the Appellant caused an appeal to be filed against it on the same date vide the Notice of Appeal of three (3) grounds, dated 4th July, 2006 and in the Appellants brief filed on 24th June, 2008, deemed on the 25th May 2018, two (2) issues are submitted for decision by the Court as follows: –
i. Whether the lower Court was right in holding on the strength of an affidavit evidence filed by the 4th and 5th Respondents that the action does not disclose a reasonable cause of action against them;
ii.Whether the lower Court was right in holding that it was not necessary to have joined the 4th and 5th Respondents to the action.
Although from the record of the Court, all the Respondents were duly served with material processes of the appeal, particularly the Appellants brief and Hearing Notice of the appeal, there is no record to show that any of them filed a Respondents brief of argument for the prosecution of the appeal and none of them was represented at hearing of the appeal. Consequently being satisfied that the Respondents were duly served with the Appellants brief and hearing notice of the appeal and in the absence of communication from any of them to the Court to excuse their absence at the hearing of the appeal, the Court heard the appeal on the Appellants brief alone.
The implication is that the appeal is uncontested since none of the Respondents has filed a brief of argument to be considered in the determination of the appeal by the Court. However, the absence of the Respondents briefs of argument does not mean or translate, automatically, to the success of the appeal since it is to succeed on its viability and sustainability in law and not merely on the absence of the Respondents briefs. See Ebe v. Ebe (2004) 3 NWLR (860) 215; John Holt Ventures Ltd v. Oputa (1996) 9 NWLR (470) 101; Echere v. Ezirike (2006) ALL FWLR (323) 1597 @ 1608.
I would consider the Appellants issues together.
Under Issue 1, it is submitted that only the provisions of Order 15 Rule 18 of the High Court Rules, 2004, allow an application on the ground that a suit does not disclose reasonable cause of action against a party and not Order 39 Rules 1 and 2 under which the 4th and 5th Respondents application was made. Citing Order 15, Rule 18(2) of the Rules, it is argued that a Court is forbidden from relying on any other evidence outside the statement of claim of the Plaintiff in the determination of whether a reasonable cause of action is disclosed in a case and so the High Court was wrong to have relied on the Affidavit evidence in support of the application by the 4th and 5th Respondents, on the authority of Cookey v. Fombo (2005) 5 SC (Pt. II) 107; Yusuf v. Akindipe (2000) 8 NWLR (669) 370 @ 387 and other cases.
Reference was made to parts of the Ruling by the High Court in which it made use of the Affidavit and paragraphs 14, 15, 19, 20, 21 and 22 of the statement of claim and it is contended that the trespass complained of the Appellant was committed by all the Respondents against whom declaratory and injunctive reliefs were sought by the Appellant. The Court is urged to hold that the suit discloses reasonable cause of action against the 4th and 5th Respondents and that the order striking their names out of the action was wrong.
On Issue 2, after setting out a portion of the Ruling by the High Court at pages 68-69 of the record of Appeal, it is submitted that the finding by the High Court on whether the 4th and 5th Respondents were properly joined in the action was solely based on the earlier finding that the action discloses no reasonable cause of action against them and so must fail if it was wrong. In further argument, it is said that the joinder of Defendants in actions before the High Court was as provided in Order 13, Rule 4 and that the Appellant had sought reliefs against the 4th and 5th and so would be bound by decision of the High Court if they were granted. Green v. Green (1987) 3 NWLR (61) 480 @ 492 and Peenok Invest. Ltd v. Hotel Presidential Ltd. (1982) NSCC, 477 @ 486 were cited for the argument that the trespass action arose out of the conduct of all the Respondents, jointly and severally and so it cannot be properly, effectually and completely determined in the absence of the 4th and 5th Respondents. The Court is urged to hold that they are both necessary parties and were properly joined.
In addition, learned Counsel submitted that contrary to the position of the High Court, even if 4th Respondent was an agent of a disclosed principal, he was liable to be sued as a joint tortfeasor with the principal by virtue of participation in the trespass relying on Halbury Laws of England, Vol. 1, page 509, paragraph 846.
The Court is urged to resolve the two (2) issues in the negative, to allow the appeal and set aside the Ruling of the High Court.
I should start a consideration of the issue with the argument by the learned Counsel for the Appellant that the objection by the 4th and 5th Respondents was brought under the wrong provisions or Rules of the High Court, i.e., Order 39, Rules 1 and 2 instead of Order 15, Rule 18 of the High Court Rules, 2004.
There is no legal consequence on the competence or validity of the objection simply because it was said to have been brought under wrong number of the Rules since the Rules admittedly make provisions for and allow the objection to be made, raised or brought by parties in a case before the High Court. Failure to state or mistake in stating the correct number of the Rules of a Court under or pursuant to which either a motion or an objection was brought by a party does not affect the validity and competence of the process or any subsequent order or decision by the Court in the proceedings of such motion or objection. See Maja v. Samouris (2002) 9 NSCQR, 546 @ 567; Uchendu v. Ogboni (1999) 5 NWLR (603) 337; Falobi v. Falobi (1976) 9-10, SC, 1.
Therefore, the mere fact that the objection by the 4th and 5th Respondents was indicated on the face thereof to have been made, raised and brought under and/pursuant to the provisions of Order 39, Rules 1 and 2 instead of Order 15, Rule 18 of the High Court Rules, was of no moment since the Rules in Order 15, Rule 18 provide for and allow parties in a case before the High Court to raise and bring it for decision.
I should however, point out that a preliminary objection is ordinarily and usually filed to challenge the competence of suit or action on any of the cognisable grounds of law and because it is predicated on point(s) of law, no affidavits which are essentially averments of facts, are required or necessary to be filed in respect thereof by the parties either in support thereof or opposition thereto. See Amah v. Nwankwo (2007) LPELR-8225(CA). However, from the grounds of the objection filed on the 20th February, 2006 by the 4th and 5th Respondents, it was predicated largely on facts stated on the face of the objection and those contained on the Appellants Statement of Claim, and because it did not seek to challenge the competence of the suit on grounds of law, but rather, that the facts averred in the statement of claim do not disclose a reasonable cause of action against them, a motion was the appropriate process to have been brought on ground of misjoinder and not a preliminary objection. Be that as it may, since the Rules of the High Court admit and allow the filing of a preliminary objection on whatever grounds, I am prepared to accept that the objection was brought under the Rules of that Court.
However, since the grounds of the objection are predicated on the facts set out in the statement of claim of the Appellant which are deemed accepted by the 4th and 5th Respondents on the assertion that they do not disclose reasonable cause of action against them, then the only relevant materials for the determination of the question whether or not the facts disclose reasonable cause of action against them, would be the avernments in the statement of claim alone.
In the case of Dantata v. Mohammed (2000) 7 NWLR (664) 176 @ 203, the apex Court per Onu, JSC, stated the law that:-
it is trite law that in the determination of a reasonable cause of action in the statement of claim, all the facts contained therein are deemed admitted. The admitted facts will then be examined to ascertain if they would entitle the plaintiff to the remedy sought. Shell B. Petroleum Dev. Co. v. Onasanya (1976) 6 SC, 89.
Having admitted or deemed to have admitted the facts in the statement of claim by the plea or assertion that they do not disclose reasonable cause of action against them, the 4th and 5th Respondents cannot at the same time be permitted or be heard to turn round to produce evidence by way of an Affidavit in support of the objection, that tends to contradict the facts in the statement of claim which they are deemed in law to have admitted. In these premises and by the provisions of Rule 13, Rule 18(2) of the Rules of the High Court applicable to the case, the High Court erred to have permitted the affidavit of the 4th and 5th Respondents in support of the preliminary objection, to have used and relied on it in the determination of the question whether reasonable cause of action was disclosed by the facts set out in the Appellants Statement of Claim against them. Once again, the only relevant process to be considered in the determination of whether reasonable cause of action was disclosed against the 4th and 5th Respondents was the statement of claim and no other document or process in the case. Dealing with a similar issue in the case of Labode v. Otubu (2001) 3 SC, 15 (2001) 7 NWLR Pt 712 256, Uwais, CJN, had stated that: –
Now it is true that in determining an application under Order 22 of the High Court of Lagos (Civil Procedure) Rules, Cap 52 of the Laws of Lagos State, 1972, the trial Court will only examine the writ of summons and the Statement of Claim. It will not examine the statement of defence or any defence by way of the affidavit in support of the application to strike out or dismiss the action or suit.
See also Adeosun v. Jibesin (2001) 11 NWLR (724) 290; Cookey v, Fombo (supra); Dantata v. Mohammed (supra); Ayanboye v. Balogun (1990) 5 NWLR (151) 392; Egbe v. Adefarasin (1987) ALL NLR, 1 @ 21; Rinco Cosntr. Co. Ltd v. Veepee Ind. Ltd (2005) 3-4 SC, 1, (2005) 9 NWLR (929) 85; UBN, Plc. v. Umeoduagu (2004) 13 NWLR (890) 352.
It may need to be pointed out that even though all the aforenamed cases dealt with objections/applications to strike out or dismiss a case on grounds of non-disclosure of reasonable cause of action, the principle of law stated and restated therein on the relevant process to be considered in the determination of whether reasonable cause of action was disclosed against the objectors/defendants, applies to the 4th and 5th Respondents objection since it sought to strike out or dismiss the Appellants suit or action against them on the same ground. In fact, the High Court recognized this position in its Ruling where, at page 61 of the Record of Appeal it stated that:-
For a determination of this sought of application, the pleading to be examined is the avernment in the Statement of Claim which are already deemed to be admitted. The admitted facts will then be examined to ascertain if they would entitle the Claimant to the remedy sought. See Cookey v. Fombo (2003) 5 SC (Pt 11) 107-1-8; Alalade V. Moroundiya (2002) 16 NWLR (Pt 792) 81; Shell B. P. Petroleum Development Company v. Onasanya (1976) 6 SC 89.
Inspite of the above restatement of the established principle of law by the High Court, it took its eyes off the ball, and went outside of and contrary to the principle when it went ahead to consider the Affidavit evidence filed by the parties on the objection outside of and in addition to the facts in the statement of claim, in the determination of the objection. Hear the High Court determine whether a cause of action was disclosed against the 4th and 5th Respondents by the facts in the Appellants statement of claim, at page 68 of the Record of Appeal:-
On a perusal of the Statement of Claim, the allegation against the applicants are that they are Directors of the 1st defendant. This is contained in paragraphs 5 and 6 of the Statement of Claim dated 28/4/03. However, this allegation has been faulted by Exhibits EN2 and EN3 which are particulars of Director and Memorandum and Article of Association of the 1st defendant, attached to the Motion. These exhibits show that the applicants are not Directors of 1st defendant. Also there is no avernment in the Statement of Claim which clearly states that the applicants were present at the scene of action on the 25th and 26th of April 2003 the days the alleged demolition was said to have taken place.
The applicants also denied being at the scene on those days. Neither in the Respondents Counter-affidavit not in its submission was this assertion of the applicants controverted. Evidence which are not controverted by the other party at the time he has the opportunity to do so is taken by the Court as the truth of what the position is and the Court will therefore act on such uncontroverted piece of evidence. See Ajomale V. Yaduat (No2) (1991) 5 NWLR (Pt 191) 266; Nwabuoku V. Ottih (1963) 3 SCNLR 232; and NBTC Ltd V. Narumal (1986) 4 NWLR (Pt 33) 117. From the set of facts above, this Court holds that no reasonable cause of action has been disclosed against the applicants.
Although I have found the High Court erred to have used and relied on the Affidavit evidence filed by the 4th and 5th Respondents in support of the objection in the determination of the question whether the facts averred in the Appellants Statement of Claim disclosed reasonable cause of action against them, the next step is to find out if the said Affidavit evidence was the only basis upon which the High Court upheld the objection by the 4th and 5th Respondents.
From the consideration and finding by the High Court above, it is clear that the Affidavit in support of the objection by the 4th and 5th Respondents was the primary basis for the ultimate finding that the facts in the Appellants Statement of Claim do not disclose reasonable cause of action against them and without it, the decision by the High Court on the question or objection would clearly have been different.
I therefore find merit in the arguments of learned Counsel for the Appellant on Issue 1 which is resolved in favour of the Appellant to the effect that the High Court was not right to, on the strength of the Affidavit evidence filed by the 4th and 5th Respondents, hold that the action does not disclose reasonable action against them.
On the Issue 2, since the facts pleaded in the Statement of Claim by the Appellant are deemed admitted by the 4th and 5th Respondents on the ground of the plea and objection determined under Issue 1, the facts, prima facie, show that the alleged tort of trespass to the premises of the Appellant was committed by all the Respondents and that the 4th and 5th Respondents are Directors of the 1st Respondent. These admitted facts, which, under the evidence law; see Section 75 of the Evidence Act, 2004, (now Section 123 of the 2011 Act), Nzeribe v. Dave Engr. Co. Ltd (1994) 8 NWLR (361) 124; Omoregbe v. Lawani (1980) 2-4 SC, 108; Ragnolds v. Rocknoh (2005) 10 MJSC, 159; Z. P. Ind. Ltd v. Samotech Ltd (2007) 16 NWLR (1060) 315, require no further proof, are contained in paragraphs 5, 6, 14 and 18 of the Statement of Claim as follows: –
5. The 4th Defendant is a Lawyer and a director of the 1st Defendant company and also its solicitor.
6. The 5th Defendant is a director of the 1st Defendant company.
14. On 25th April, 2003, the Defendants with their agents, mobile policemen, thugs, etc and notwithstanding the pendency of Suit No. ID/2576/2000 illegally, unlawfully, wantonly and without any basis whatsoever invaded the Plaintiffs premises and trespassed thereon.
18. On 26th April, 2003, the Defendants returned to continue with the mayhem on the premises but were resisted by a team of policemen who came to maintain peace after a report had been lodged of the Defendants action.
The reliefs sought by the Appellant in the action were thus: –
1. A declaration that the invasion and partial demolition of the buildings and premises in Plaintiffs possession at No. 1 Sobo Arobiodu Street, Ikeja, Lagos by the Defendants and/or their agents on 25th and 26th April, 2003 is illegal and unlawful.
2. An order of injunction restraining the Defendants whether by themselves, their servants, agents, privies and otherwise however from further trespassing, invading, going unto the premises, demolishing and/or interfering in any manner whatsoever and howsoever with the Plaintiffs possession (except under a lawful order of Court) of the buildings and premises at No. 1 Sobo Arobiodu Street, Ikeja, Lagos.
3. Damages in the sum of 50,000,000.00
4. Costs of this action in the sum of 2,000,000.00.
The aggregate of the above admitted facts show, prima facie, until proved otherwise at the trial by the 4th and 5th Respondents, that the 4th and 5th Respondents are Directors of the 1st Respondents, who along with others, committed the alleged acts of trespass on the premises of the Appellant, which if proved at the trial would entitle it to the judicial remedies or reliefs sought in the action. The facts show not only a cause of action, but reasonable cause of action against the 4th and 5th Respondents.
A cause of action, simply put, means a fact or combination of facts which give(s) rise to a right to a legal action or the right to sue in a Court of law for a judicial remedy. See Egbue v. Araka (1988) 7 SC (Pt. III) 98, (1988) 1 NWLR (84) 598; Adimora v. Ajufo (1988) 3 NWLR (80) 1, (1988) LPELR-182 (SC); Akilu v. Fawehinmi (No.2) (1989) 2 SC (Pt. II), 1, (1989) 2 NWLR (102) 122; Owodunni v. Reg. Trust, C. C. C. (2000) 6 SC (Pt. III) 60, (2000) 10 NWLR (675) 315 @ 365.
A reasonable cause of action, on its part, means simply, as a cause of action which, when the assertions in the Statement of Claim are considered, has some chance of success.
In determining whether a Statement of Claim discloses a reasonable cause of action, the Statement of Claim is to be examined as a whole and to see whether, on its face, it discloses or contains facts which if proved, would entitle the claimant/plaintiff, to a judicial remedy and not whether it discloses any ground of law to support the claims. Put shortly, a reasonable cause of action is a fact or combination of facts which give(s) a right of action in a Court of law and has/have a chance of success, on their face. See Oshoboja v. Amuda (1992) 1 NWLR (250) 690; Ogbimi v. Ololo (1993) 7 SCNJ, 447; Yusuf v. Akindipe (2000) 55 SCNJ 128 @ 137, (2000) 8 NWLR (669) 376; A.G. Abia State v. A.G. Federation (2005) 6 SCNJ 1,; Rinco Constr. Co. Ltd v. Veepee Ind. Ltd (supra).
The learned Counsel for the Appellant is right that joint tortfeasors can be sued jointly or severally even if a disclosed principal and his agents, and each would be liable in damages for loss or injuries caused by their joint acts which constitute or amount to the tort in issue. Relying on the cases of Izuogu v. Emuwa (1991) 4 NWLR (183) 78 and Iyere v. B. F. & F. M. (2008) 12 MJSC, 102, I had cause to restate the law in the case of Dickson v. Assamudo (2013) LPELR – 20416 (CA) thus:-
The law is beyond argument that jointfesors can be sued severally and jointly and each would be liable in damages for the injuries caused by their joint acts which amounted to the tort in issue. However, it is to be noted that before the issue of joint or several liability of joint, tortfeasors arises, there must be evidence of participation of the persons or parties sued in the commission of the tort complained of, first. Mere presence of a person at the scene of alleged tort without participation directly or by conduct in the commission of the tortious acts would not, or better, cannot make a person liable for such acts simply because he was sued along with the tortfeasors.
I. T. Mohammad, JSC had enunciated instances when joint tortfeasors would each be liable for a tort in the case of Iyere v. B. F. & F. M. (supra) as follows:- The following for instance, are joint tortfeasors:-
1. Employer and Employee where the employer is vicariously liable for the tort of the employee.
2. Principal and agent where the principal is liable for the tort of the agent.
3. Employer and Independent Contractor where the employer is liable for the tort of his independent contractor,.
4. A person who instigates another to commit a tort and the person then commits the tort.
5. Persons who take concerted action to a common end and in the course of executing the joint purpose, commit tort.
So even if the 4th and 5th Respondents, as Directors of the 1st Respondent; are agents of the 1st Respondent, who is their disclosed principal since they are alleged by the facts in the Appellants Statement of Claim to have committed the tort of the trespass complained of, they, along with the 1st Respondent, are liable to and can be sued as joint tortfeasors and if proved, each would be liable for the tort.
In the above circumstances, on the face of the facts pleaded in the Appellants Statement of Claim, which once more, are deemed admitted by the 4th and 5th Respondents, they are necessary parties to the Appellants action for them to be bound by the decision of the High Court on the reliefs sought by the Appellant in the action and for the case to be effectually, completely and finally determined on the merit. Necessary parties are those who are not only interested in the outcome of litigation, but in whose absence, the issues of dispute cannot be effectually, completely, finally and fairly be determined or decided on the merit by a Court.
Any party or person whose presence is crucial and fundamental to the resolution of a case before the Court is an indispensable and a necessary party who should or must be made a party to the action. See Rinco Constr. Co. Ltd v. Veepee Ind. Ltd (supra); Oloriode v. Oyebi (1984) 1 SCNLR, 390; Awoniyi v. Reg. Trustees of AMORC (2000) 10 NWLR (676) 522, (2000) 6 SC (Pt. 1) 103; Buhari v. Yusuf (2003) 4 WRN, 124; Mobil Oil Plc v. Drexel Energy & N. R. Ltd (2004) 1 NWLR (851) 142; B.O.N. Ltd v. Saleh (1999) 9 NWLR (618) 331; Uku v. Okumagba (1973) 3 SC, 35; Anabaonye v. Nwakahe (1997) 46 LRCN, 185.
For the above reasons and in the circumstances shown by the facts in the Appellants Statement of Claim, the 4th and 5th Respondents are/were necessary parties to the Appellants action and were properly joined thereto and the High Court decision to the contrary in the Ruling appealed against is wrong in law. Accordingly, I answer the Appellants issue in the negative and resolve it in its favour.
In the final result, the appeal succeeds and is allowed.
Consequently, the Ruling by the High Court delivered on 4th July, 2006 is hereby set aside and the action shall proceed as constituted with the 4th and 5th Respondents as parties thereto (in case it has not been concluded due to its age).
There shall be costs assessed at Two Hundred Thousand Naira (200,000.00) in favour of the Appellant to be paid by the 4th & 5th Respondents for the prosecuting of the Appeal.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the succinct judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A., (Hon. P.J.) which I read in print.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before now the lead judgment just delivered by my learned brother MOHAMMED LAWAL GARBA JCA. I agree with the reasoning and conclusion in the judgment. I also allow the appeal and I abide by the consequential orders made in the judgment.
Appearances:
Olukemi Adebanjo with her, I. M. ElumeluFor Appellant(s)
Bebor Tabai with him, K. Abama for the 1st Respondent.
2nd-5th Respondents not represented.For Respondent(s)
