MR S.A. IBRAHIM V. MR AZEEZ ADEKUNLE (2011)

MR S.A. IBRAHIM V. MR AZEEZ ADEKUNLE

(2011)LCN/4283(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 8th day of February, 2011

CA/IL/35/2010

RATIO

AN APPLICATION FOR JOINDER OF THIRD PARTY: WHETHER THE GRANT OF AN APPLICATION FOR JOINDER OF THIRD PARTY IS WITHIN THE DISCRETION OF A TRIAL JUDGE AND WHETHER THE APPELLATE CAN INTERFERE WITH THE DISCRETION

An application for joinder of third party is discretionary and a Judge has the right to use his discretion to join or not to join a third party based on the facts placed before it and this court will not interfere with such discretion once it is judicial and judicious see IWU V. FEDERAL COMMISSIONER OF ESTABLISHMENT (1985) 4 SC (PT 277) and BABATUNDE VS. A.S.A & TA LTD (2007) 4 SC (PT.1). PER SOTONYE DENTON-WEST, J.C.A.

WHETHER THE STEPS TAKEN BY A PARTY MUST NOT BE MALAFIDE

RULES OF THE COURT: WHETHER THE RULES OF COURT ARE MEANT TO BE OBEYED AND APPLIED AT THE RIGHT TIME; PURPOSE OF THE RULES OF COURT

Rules of court are meant to be obeyed and applied at the right time and not to be selfishly used or abused as done by the appellant in this case see OWNERS OF MV ARABELA V NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (PT.1097), AROMOLARAN V OLADELE (1990) 7 NWLR (PT.162) 359 and CLEMENT V IWANYANWU (1989) 4 SC. Rules of Court are made for the purpose of directing parties in the way and manner of conducting their case and not necessarily to act a clog in the wheel of obtaining justice. See DINYADI VS. I.N.E.C. (2001) ALL FWLR PAGE 1204; SOLANKE VS. SOMEFUN (1974) ALL NLR (PART 1) 1526. PER SOTONYE DENTON-WEST, J.C.A.

RULES OF the COURT : DUTY OF A LITIGANT TO APPLY ALL THE RULES OF COURT APPROPRIATELY

…a litigant does not have the right to apply one rule and evade the other, all the rules of court should be applied appropriately see OWNERS OF MV ARABELA V NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (PT.1097), AROMOLARAN V OLADELE (1990) 7 NWLR (PT.162) 359; CLEMENT v IWANYANWU (1989) 4 SC and KALU V ODILI (SUPRA); DINYADI -VS- I.N.E.C supra. In IKEYI -VS- CROWN REALITIES PLC (2010) ALL FWLR (PT.544) P.1 AT PAGE 11, Rhodes Vivour, JCA as he then was observed thus: “In this case, the appellant participated at all the pre-trial conferences held on 14 February 2005, 28 February 2005, 10 March 2005, 11 April 2005, 26 April 2005, 5 May 2005, 9 May 2005, 12 May 2005. That is 8 appearances. The appellant and the respondent agreed on the issues in dispute and the issues were resolved. Thereafter, the court terminated the suit by striking it out, there being nothing more to resolve between the parties to send to trial. The Court keeps to its schedule and counsel and litigants are expected to arrange their affairs to fall in line with it and not expect the court to wait on them. Fair hearing clearly does not amount to hearing at all cost. Once the parties were given time to state their case as was the case in this matter, a party cannot be heard after to say that he was denied fair hearing.” PER SOTONYE DENTON-WEST, J.C.A.

DUTY OF THE COURT: DUTY OF A COURT TO EXERCISE ITS DISCRETION JUDICIALLY AND JUDICIOUSLY AND UNDER WHAT CIRCUMSTANCE WILL AN APPELLATE COURT SET ASIDE SUCH DISCRETION

It is the duty of a court to exercise its discretion judicially and judiciously in the determination of issues before it and when such discretion has been duly exercised, an appellate court would be slow to set same aside except for good reasons and the appellant herein has not shown any good reason why this court should set aside the Ruling of the lower court delivered on 13th January, 2010. See the decision of this court in OLOJEDE VS. OLALEYE (2010) All FWLR 1503, PAGE 1503. PER SOTONYE DENTON-WEST, J.C.A.

JUSTICES

TIJJANI ABDULAHI Justice of The Court of Appeal of Nigeria

SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

Between

MR S.A. IBRAHIM Appellant(s)

AND

MR AZEEZ ADEKUNLE Respondent(s)

SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment): Fundamentally, this Appeal stems from the ruling of Honorable Justice Mahmud Abdulgafar of the Kwara State High Court of Justice delivered on 13th January, 2010 dismissing the appellant’s application.
The Appellant, before the lower court brought a motion exparte under Order 1 – 4 Rule 19(1) of the Kwara State Civil Procedure Rules 2001, that the “Iloffo Oba-in-Council as represented by Oba Samuel Niyi Dada be joined as a “Third Party” to this suit. And for such further or other orders as this Honorable court might deem fit to make”. And same was dismissed by the lower Court.
Flowing from above, the appellant filed a notice of appeal containing two grounds of appeal. Similarly the appellant formulated two issues for determination as follows:
1. Whether the learned trial Judge conducted the trial of the appellant’s exparte application for joinder with fairness and in accordance with the law.
2. Whether the learned trial Judge is not wrong in law in refusing to grant the appellant’s application for joinder on the ground that there is no dispute between the appellant and the Third Party.
The respondent on his own adopted the issues as formulated by the appellant with little modification. For ease of reference the issues are highlighted below:
1. Whether the trial High Court treated the Appellant’s ex parte application for joinder of third party with fairness and in accordance with law.
2. Whether the trial High Court was wrong in law in dismissing the appellant’s application for joinder of the third party.
The two parties in line with the practice of this court adopted their brief of argument on 10th November, 2010. The appellant vide his counsel adopted the appellant’s brief of argument and prayed this honorable court to strike out the respondent’s brief of argument. He finally urged this court to allow the appeal and grant the prayers of the appellant. He further prayed this court to strike out the respondent’s brief filed 28/9/2010 for not complying with order 17 of the Court of Appeal Rules.
The respondent’s counsel urged this honorable court to dismiss the appellant’s appeal and that this court should discountenance with the notice of preliminary objection.
The preliminary objection is of no moment, as this court granted the respondent extension of time within which to file his respondent’s brief of argument and same was complied with by the respondent.
In determining this appeal, this court will appraise all the issues raised by the parties wherein all the issues will be determined. The issues as raised by the appellant will first be reviewed before that of the respondent.
The appellant’s issues will be used to determine this appeal.
ISSUE 1
1. Whether the learned trial Judge conducted the trial of the appellant’s exparte application for joinder with fairness and in accordance with the law.
The appellant’s counsel Chief Odeyemi urged this honorable court to reject the findings of the lower court and that it was not true that the applicant filed his application when hearing commenced, he stated that hearing commenced on 14th of October, 2009 and that he filed his application on the 8th of October, 2009. He therefore, urged this Honorable Court to hold that he filed his application for joinder before the commencement of hearing at the lower court.
He further argued that the appellant’s application has not occasioned any denial to respondent’s right to fair hearing.
Chief S.F. Odeyemi, further argued that the learned trial Judge failed to follow the provisions of Order 14 Rule 19(1) and Order 11 Rule 8 of the High Court Civil Procedure Rules of Kwara State which he complained of but was overruled by the lower court.
Instead of dismissing the motion exparte, and direct the claimant to put the respondent on notice, the lower Court refused the application and dismissed same.
Appellant’s counsel further contended that, the appellant was not given fair hearing because the respondent who was not supposed to be heard was heard and that the appellant was not given the opportunity to controvert the respondent’s argument. He thereafter submitted that it is mandatory for the trial court to follow rules of court and he relied on Section 274 of the 1999 Constitution and the case of KALU V. ODILI (1992) 6 SCNJ Pt 176 at 79 to buttress his position. He finally prayed this Honorable court to hold that since the ruling of the trial Judge is void, for not complying with the Kwara State Civil Procedure Rules 2005, that this court should set aside the ruling of the lower court and grant the appellant’s application for joinder.
J.S. Bamigboye Esq, argued that the issue of joinder of parties is specifically provided by the rules of court as a pre-trial issue to be scheduled at the pre-trial conference and he referred this court to Order 33 Rule 3 of the High Court Civil Procedure Rules, 2005. He further, contended that the pre-trial conference rules make provision for 45 days but that in this case it spanned for 65 days and the appellant suggested 12/5/2009 for hearing and that there are no issues to be resolved before hearing.
He further stated that the two parties agreed during the pre-trial conference that the appellant never raised the issue of his motion and it was after six (6) months and when hearing has commenced that he raised the issue of joinder. He argued that, the position of the appellant that he was refused fair hearing was an afterthought and no court will allow itself to be unduly abused. As regards to the appellant’s rights of fair hearing, he refers this court to the case of CHIEF TOYE OGUNYEMI v. BINTU EJIDE (2008) ALL FWLR (Pt.403) 1400, 1406 – 1407 to support their position.
He further contended that the appellant’s behavior is tardy as his attitude is designed to frustrate the case, he referred to the case of BANK OF BARODA V. MERCHANTILE BANK (NIG) LTD (1987) 6 SCNJ 165, 175 to buttress his argument. He thereafter argued that adherence to the directive of court and rules of court is fundamental and a party that fails to comply with the rules of court cannot complain of breach of fair hearing, he referred this court to the case of CHIEF ONWUKA KALU V. CHIEF I. ODILI (1992) 5 SCNJ Pt.76, 79 to buttress his position.
The respondent counsel argued that, the appellant lied on the issue that he filed his application before the commencement of hearing, he said the pre-trial conference where all issues of joinder is by the rules scheduled to be completed was concluded on the 7th of April, 2009 and the appellant never complained.
That on the 14th October, 2010 when hearing commenced, the appellant never made mention of any application for joinder of third party and that same was only raised for the first time when the 1st respondent was called as a witness and was cross examined by the appellant and discharged by the court on the 21st of October, 2010.
Respondent argued that the Judge has the right to use his discretion to join a third party and where such discretion is not used in favor of the appellant that does not affect the jurisdiction of the court.
He argued, that the issue of joinder is not very fundamental in a case except where non joinder will occasioned the miscarriage of justice and that is not applicable in this case and referred this court to the case of MR MICHAEL AGBEKONI V. ALHAJI IBRAHIM A. KAREEM (2008) ALL FWLR (Pt. 405) 1970, 1985 and that the application of third party joinder is misconceived. He argued that the appellant was not denied fair hearing in any way as the court acted within the dictate of his power as enshrined in Section 6 (5) & (6) of the 1999 constitution. He referred this court to the case of NDUKWE ESIRI & ORS V. UZOR IDIKA & ORS (1987) 9-10 SC 170, 179 – 180.
Respondent counsel submitted that, even though the motion is exparte but since the respondent is in court he should be allowed to respond and that the Judge acted within his inherent jurisdiction. Still on this issue the appellant must establish what prejudice he suffered by the court allowing the respondent to reply. On the case of KALU v. ODILI (SUPRA), cited by the appellant, the respondent contended that the authority cited is misconceived by the appellant and similarly section 274 of the 1999 Constitution was misconstrued and that same should be discountenanced.
He thereafter urged this court to resolved this issue against the appellant and dismiss it.
RESOLUTION OF ISSUE 1
Before delving into the determination of this issue it will be wise to reproduce Order 14 Rule 19(1) which provides thus:
“Where it appears to the court that any person not a party in the proceedings may bear eventual liability either in whole or in part, the court may upon an exparte application allow that person to be joined as a third party by any of the defendants. The application shall state the grounds for the applicant’s belief that such a party may hear eventual liability.”
The lower court on its own held that:
“In the light of the fact that application was filed at a time when the hearing of the case was commenced, it would amount to denial of fair hearing not to allow the claimant to respond to the application. I therefore over rule the objection of Chief Odeyemi to the claimant’s right to be heard in respect of the application for joinder.”
This was one of the decisions the appellant is contending in respect of Order 1 – 4 Rule 19(1) of the Kwara state civil procedure rules.
Going through the record of proceedings, the appellant filed his exparte application on 8/10/2009 and hearing of the substantive matter commenced on 14/10/2009 wherein the appellant cross examined the 1st witness and the witness was discharged. It should similarly be noted that the pre-trial conference was concluded on the 7th of April, 2009 after which the appellant sought for adjournment for various reasons before it was finally slated for hearing. Similarly, after the alleged contentious ruling, the respondent entered his defence and called three witnesses who were cross examined and discharged.
I agree that Order 14 Rule 19 (1) provides that application for joinder of third party is vide motion ex parte but such issue should have been brought and determined at the pre-trial conference as provided for under Order 33 Rule 3 of the Kwara State High Court Civil Procedure Rules 2005 which Provide thus:
“At the pre-trial conference, the Court shall enter a scheduling 0rder for
a) joining other parties;
b) Amending Pleadings or any other;
c) Filing motions;”
(underlined is mine for emphasis)
It is pitiable that the appellant refused to bring his application up for hearing months after the completion of the pre-trial conference. The appellant got it wrong, as it is on record that he applied to the lower court to move his application after participating in cross examining a witness. The appellant should have informed the court that he has a pending application before the court which was ripe for hearing before the lower court would proceed to take evidence, and at this juncture of taking evidence, issues have been narrowed down and joined. Consequently the lower court in its discretion set down the case for hearing.
This court does not query lower courts as argued by chief Odeyemi and we shall not query the lower court. The Language of Chief Odeyemi is therefore incongruous, harsh and very uncomplimentary on the lower court, as regards the exercise of its discretion.

This court is a court of equity and he that comes to equity must come with clean hands. Steps taken by a party must not be malafide. See ADEFARATI V. GOV. ONDO STATE (2006) 7 NWLR (PART 960) 145 AT 157. LEASING CO. (NIG) LTD. V. TIGERS (2007) 14 NWLR (PT 1054) 346 AT 380 – 381, ADEJUMO v AYANTEGBE (1989) 6 SC (PART 1) 76. In this case, the appellant has not shown that he has clean hands and equity will not help him. More so, when such issue was clearly stated in the rules of the court that it must be taken at the pre-trial period. See SECTION 33 OF KWARA STATE HIGH COURT CIVIL PROCEDURE RULES AND OSULA V OSULA (1995) 3 SCNJ 60.
The time at which the appellant brought up his application to be heard calls for serious caution and that was why I believe the lower court directed the respondent counsel to react to the motion ex parte in the interest of justice. Ex parte as it goes should be an application that its only a single party that can argue and or move his application even if the other party is in court, but in this case the lower court call on the other party to respond. I hold that calling the other to reply to the motion exparte never caused the appellant any injustice, injury or unfairness as the appellant never showed that any of his right was breached. In fact it is my view that it is expedient what the learned trial judge Mahmud Abdulgafar, J. did when he instantly allowed the third party sought to be joined to respond to the application. This act of the lower court dispenses with undue delay and paves way for speedy dispensation of Justice by eschewing or removing all unnecessary technicalities.
The judicial authority cited by the appellant does not help their matter. The appellant abused the provision of the law as of when to bring the application for joinder of third party for hearing and he cannot be heard to cry or complain now.
The lower court conducted and heard the application for joinder with fairness and in line with the circumstance of the case as enumerated above. The lower court acted within its constitutional and inherent jurisdiction to exercise his discretion. The discretion of the lower court to hear the respondent is faultless and just.

The appellant should have made his application during the pre-trial conference if he is sincere about his application and not when a witness has been called, as such will be prejudicial to the respondent. Finally, the right to fair hearing is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 and a breach of it, particularly in trial vitiates such proceedings rendering same null and void.
However in the instant appeal, there has been no breach of fair hearing against the Appellant. See DINYADI VS. I.N.E.C. supra.
In view of the above issue one fails and it is resolved against the appellant. The appellant’s right to fair hearing was not at anytime or in any way breached.
ISSUE TWO:
Whether the learned trial Judge is not wrong in law in refusing to grant the appellant’s application for joinder on the ground that there is no dispute between the appellant and the Third Party.
Chief S.F Odeyemi, submitted based on the ruling that, the court said third party is not necessary and, that under Order 14 Rule 19(1) it is not a condition or requirement that before an application for joinder is granted there must be a dispute between the applicant and the third party to be joined and that the trial Judge misapplied Order 14 Rule 19(1). Appellant thereafter argued that the trial Judge did not follow the provisions of the law and because he did not define what dispute is between the appellant and the third party, the lower court’s ruling should be set aside.
Appellant’s counsel further submitted that the trial Judge fell into greater error when he held that third party proceedings is to define the share of the liability when the third party is responsible for and should bear the loss. That it will be premature for the lower court to share liabilities for the parties. Appellant contended that the lower court admitted that the 3rd party is a necessary party. He thereafter cited the case of OLORIODE V. OYEBI (1984) 5 SC 1, 16, 22 where the Supreme Court held that all proper parties to a suit must be joined.
Appellant counsel further argued that the lower court made a speculative decision and submitted that, that was the height of bias and prejudice against the entire suit. He went further to state that Order 14 Rule 19(1) does not provide for speculative decisions. He thereafter restated the date he filed his application, the date the first witness was called and the date ruling was delivered and concluded and that he was not late. Counsel thereafter surmised his argument and urged this court to set aside the ruling of the lower court.
Counsel to the respondent on his own argued that the application for joinder of third party calls for exercise of the discretion by court; he cited the cases of MINISTER OF PETROLEUM & MINERAL RESOURCES V. EXPO SHIPPING LINE (NIG) LTD (2010) ALL FWLR (Pt 530) 1236, 1247 and JOHN OYEGUN v. FRANCIS NZERIBE (2010) ALL FWLR (Pt 516) 425, 440 to the effect that court will not interfere with the discretion of a court that is based on law and exercised judicially and judiciously.
Counsel restated the fact that the appellant counsel never raised the joinder during the pre-trial issue, and that granting the application when a witness has already given evidence will be prejudicial to the respondent.
Respondent contended that an appellant that is untruthful about his complaint against the lower court decision will fail in his appeal. He referred this court to the case of CHIEF SAMUEL ADEBISI FALOWO V. OBA OMONIYI BANIGBE (1998) 6 SCNJ 42, 65 to the extent that the appellant was given opportunity to reply and same is on the record of proceedings. He referred this court to the case of ATAKE V. AFEJUKU (1994) 12 SCNJ 1 to the extent that this appeal is academicals.
Respondent counsel further contended that the appellant is confused about Order 14 Rule 19(1), and he referred this court to the case of BAXTER V. FRANCE NO.2 (1895) 1 QB 591, 593. Respondent submitted that the appellant’s mere claim that the third party as his root of title did not establish any triable question or dispute between the appellant and the third party and that the quest is only speculative, that a court will not grant or exercise its discretion on speculation, he referred this court to the case of ODUBEKO V. FOWLER (1993) 9 SCNJ 185, 196 to the extent that the appellant failed to establish a fundamental condition for the grant of the joinder of the third party and submitted that the application was made in bad faith. He thereafter submitted that, an application that is ill timed will not be granted; he referred to the case of NATIONAL BANK OF NIGERIA LTD V. GUTHRTE (NIG) LTD (1993) 4 SCNJ 1, 15.
He further submitted that the application is frivolous and misconceived, and urged this court to dismiss the appeal.
RESOLUTION OF ISSUE 2:
As earlier resolved in issue one, the law is sacrosanct and it shall be applied appropriately,a litigant does not have the right to apply one rule and evade the other, all the rules of court should be applied appropriately see OWNERS OF MV ARABELA V NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (PT.1097), AROMOLARAN V OLADELE (1990) 7 NWLR (PT.162) 359; CLEMENT v IWANYANWU (1989) 4 SC and KALU V ODILI (SUPRA); DINYADI -VS- I.N.E.C supra.

In IKEYI -VS- CROWN REALITIES PLC (2010) ALL FWLR (PT.544) P.1 AT PAGE 11, Rhodes Vivour, JCA as he then was observed thus:
“In this case, the appellant participated at all the pre-trial conferences held on 14 February 2005, 28 February 2005, 10 March 2005, 11 April 2005, 26 April 2005, 5 May 2005, 9 May 2005, 12 May 2005. That is 8 appearances. The appellant and the respondent agreed on the issues in dispute and the issues were resolved. Thereafter, the court terminated the suit by striking it out, there being nothing more to resolve between the parties to send to trial.
The Court keeps to its schedule and counsel and litigants are expected to arrange their affairs to fall in line with it and not expect the court to wait on them. Fair hearing clearly does not amount to hearing at all cost. Once the parties were given time to state their case as was the case in this matter, a party cannot be heard after to say that he was denied fair hearing.”
To avoid unnecessary repetition but for clarity sake, a Judge will use his discretion judicially and judiciously based on facts placed before him and such discretion will not be tampered with, except where there are reasons to do so.

The lower court held inter alia:
“It is clear to me from the pleadings before the court that there is no semblance of dispute between the defendants and the third party to warrant the joinder of the third party.”
The lower court came to the above decision based on the facts placed before him and we will not venture into it. The judicial authority and assertions of the appellant in this case does not hold water. At no time did the lower court speculate, rather, the ruling of the lower court was based on the content of the affidavit deposed to in the affidavit before the court. The lower court was not in any way bias nor prejudice.
It is unfortunate that rather than the appellant to attack the decision of the lower court, he was busy abusing the Judge, blaming the Judge for his own outright tardiness and clumsiness. It is unfortunate that the appellant want his application for third party to be heard after hearing has commenced which is against the provisions of Order 33 Kwara State High Court Civil Procedure Rules. I am sorry to say that he cannot eat his cake and have it. The lower court was fair and just and I so hold.

This is just an application in a case that have spanned about ten years without resolution. It is clearer that counsel rather than courts are the cause of slow pace of administration of justice in Nigeria. Counsel should try to run away from technicalities so that justice will thrive.
The appeal fails and it is dismissed. There is no order as to costs.

TIJJANI ABDULLAHI, J.C.A: I have had the benefit of reading in draft the lead judgment of my learned brother, Denton-West, JCA just delivered.
My Lordship has exhaustively dealt with the issues that call for determination in this appeal. I have nothing more useful to add. I adopt her reasoning and conclusion as mine. I too dismiss the appeal for lacking in merit. Parties shall bear their own costs of prosecuting this appeal.

IGNATIUS IGWE AGUBE, J.C.A.: I agree.

Appearances

Chief S.F. Odeyemi Esq;For Appellant

AND

J.S. Bamigboye Esq;
L.O. Abdulsalami Esq and
Bolatito David EsqFor Respondent