NDCA & GASPA PROJECTS MANAGEMENT ENGINEERING LIMITED v. GASPA PROJECT MGT. GROUP LIMITED & ORS
(2019)LCN/13322(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of May, 2019
CA/MK/79/2017
RATIO
WHETHER THE COURT CAN USE DOCUMENTS OUTSIDE THE APPLICANT’S AFFIDAVIT
This is notably so because the legal principle has been put beyond peradventure that a Court is competent to use documents outside an Applicant?s affidavit, but within the case file, to arrive at a just decision in a case. Courts have consistently held, and it needs to be emphasized, that it is not improper for a High Court to refer to documents in the file of the case before it, but outside the Applicant?s affidavit, in arriving at a decision. See the decisions of this Court inAyo-Ayodele Pharmaceutical Chemist (Nig.) Ltd V NIDB Ltd (2000) LPELR-10109(CA) per Onnoghen, JCA (as he then was); Ideh V Onyejese (1997) LPELR-8066(CA) 31, per Akpabio, JCA; Mhambe V Shidi (1994) 2 NWLR (Pt. 326) 321 at 330; Oke V Aiyedun (1986) 2 NWLR (Pt. 23) 548. Therefore, the action of the lower Court in this regard is in order.PER JUMMAI HANNATU SANKEY, J.C.A.
AFFIDAVIT EVIDENCE: THE ATTITUDE OF THE COURTS TO A DOCUMENT THAT IS ATTACHED TO AN AFFIDAVIT BUT NOT MARKED AS EXHIBIT
It is settled law that any document attached to an affidavit but which is not so marked as an exhibit, cannot be countenanced. See Ogundehin V Olubowale (2016) LPELR-41125(CA) 6. In addition, the documents are not even referred to in the affidavit.PER JUMMAI HANNATU SANKEY, J.C.A.
AFFIDAVIT: THE ATTITUDE OF THE COURTS TOWARDS A DOCUMENT REFERRED TO IN AN AFFIDAVIT THAT CAN ONLY BE PROVED BY A CERTAIN DOCUMENT
It is also trite law that where a deposition in an affidavit makes reference to a document or a situation that can only be proved by a certain document, it is important to attach those documents as evidence of the existence of the documents. See Titanlaye V David (2013) LPELR-20160(CA) 11, per Galinje, JCA (as he then was).PER JUMMAI HANNATU SANKEY, J.C.A.
AFFIDAVIT EVIDENCE: UNCHALLENGED AND UNCONTROVERTED FACTS ARE DEEMED ADMITTED IN AN AFFIDAVIT
However, the Supreme Court in Ogoejeofo V Ogoejeofo (2006) LPELR-2308(SC) 14, per Mohammed, JSC held:
It is also the law that the unchallenged and uncontroverted facts deemed admitted in the affidavit must be capable of proving and supporting the case of the Appellant as the Applicant. In other words, the evidence contained in the unchallenged affidavit must be cogent and strong enough to sustain the case of the Applicant.
See also M.I.N. Ltd V M.F.K.W.A. Ltd (2005) 10 NWLR (Pt. 934) 645.PER JUMMAI HANNATU SANKEY, J.C.A.
COUNTER AFFIDAVIT: A COUNTER AFFIDAVIT IS NOT ALWAYS NECESSARY TO CONTROVERT FACTS IN AN AFFIDAVIT
Thus the absence of a counter affidavit is not per se a free pass to Judgment. This is because it is not in all cases that a counter-affidavit is necessary to controvert facts in an affidavit, especially where the depositions are self-contradictory. See Omowood Indust. Ltd V Regd. Trustees of Bible Believers Fellowship Church (2014 LPELR-23400(CA) 29, per Dongban-Mensem, JCA. No wonder, the Supreme Court in Okoye V Centre Point Merchant Bank (2008) LPELR-2505(SC) 32-33 per Tobi, JSC, clarified the position as follows:
I should also say that affidavit evidence is not sacrosanct. It is not above the evaluation of the Courts. Like oral evidence, a Court of law is entitled to evaluate affidavit evidence in order to ensure it veracity and/or authenticity. While un-contradicted affidavit evidence should be used by the Court, there are instances when such affidavit evidence clearly tell a lie and the Courts cannot be blind to such a lie. One example will suffice. If a party deposes to an affidavit that 1st of April every year is Nigerias Independence Anniversary, a Court of law will certainly not accept such a deposition as true as the correct date is 1st of October. I hope I have made myself clear. (Emphasis supplied).PER JUMMAI HANNATU SANKEY, J.C.A.
HOW THE MATTERS SHOULD TREAT CASES THAT ARE ONLY TRIED UPON AFFIDAVIT EVIDENCE
Thus, where cases are tried upon affidavit evidence, the facts or depositions in such affidavits have to be proved like averments in pleadings. See Chairman, EFCC V Littlechild (2015) LPELR-25199(CA) 30, per Oseji, JCA; UBN Plc V Astra Builders (WA) Ltd (2010) 2-3 SC (Pt. 1) 60; General & Aviation Services Ltd V Thahal(2004) 4 SCM 52.PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
NDCA & GASPA PROJECTS MANAGEMENT ENGINEERING LTD Appellant(s)
AND
1. GASPA PROJECT MGT. GROUP LTD
2. AMIT LEVY
3. ADOGAMHE CLEMENT DAKO
4. NDCA CONSTRUCTION & ENGINEERING CO. (NIG) LTD Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the High Court of Justice, Nasarawa State in suit No: NSD/MG160/14 delivered on 16th January, 2017 by Adeck, J., wherein the Appellant?s application seeking to be joined as a party to the suit was refused.
The brief facts of the case leading to this Appeal are as follows: the 1st and 2nd Respondent?s instituted an action against the 3rd Respondent in 2014. In 2015, the 4th Respondent applied to be joined, claiming ownership of some earth moving equipment which was in dispute and this was granted. In 2016 again, the Appellant, claiming to be a joint company owned by the 1st and 4th Respondents, also applied to be joined in the suit contending that, by virtue of a partnership agreement between the 1st and 4th Respondents, their assets and liabilities were transferred to it. The Appellant’s application was however refused and dismissed, hence this Appeal.
?At the hearing of the Appeal on 04-03-19, O.H. Okereke Esq. adopted the Appellant?s Brief of argument dated 11-09-17, filed on 18-09-17 and deemed duly filed and
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served on 16-04-18, in urging the Court to allow the Appeal, set aside the Ruling of the lower Court and grant the application for joinder. In like manner, Nathaniel Adejinle Esq., adopted the 1st and 2nd Respondents? Brief of argument dated and filed on 19-10-17 and deemed duly filed and served on 16-04-18, in urging the Court to uphold the Ruling of the lower Court and dismiss the Appeal. The 3rd and 4th Respondents did not file any Brief of argument.
The Appellant, in its Brief of Argument, framed the following issues for determination by the Court:
1. Whether the trial Court was right to rejected (sic) the Appellant?s application to be joined as a party in this suit. (Grounds 1 and 3)
2.Whether a deposition in an affidavit not denied, challenged or controverted can be taken as true and wholly relied upon by a Judge. (Ground 2)
3. Whether the learned trial Judge was entitled suo moto to embark on an inquiry to ascertain facts not raised by either party in the application for joinder. (Ground 4)
4. Whether the Court was right in relying on pleadings in Statement of Defence and averments in witness statements on oath not
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adopted before Court as if they were affidavit evidence (Ground 5)
5. Whether the trial Court was right to rejected (sic) the Appellant?s application to be joined as a party in this suit.
On their part, the 1st and 2nd Respondents formulated the two following issues for determination:
1. Whether having regard to the circumstance of this case and in consideration of the pleadings, affidavit, documents and other Court processes, the Appellant is a necessary party in this suit. (Ground 1 and 2)
2. Whether in dismissing the Appellant’s application for joinder, the trial Court acted judicially, judiciously and within the confines of the law. (Grounds 3, 4 and 5)
As observed earlier, the 3rd and 4th Respondents did not respond to the Appeal as they filed no Brief of argument. I consider the issues formulated by the Appellants splintered in a way in which arguments thereon overlap. Thus, I adopt the issues distilled by the 1st and 2nd Respondents, which I find more concise. The issues shall be addressed together.
ARGUMENTS
In arguing the Appeal, learned Counsel for the Appellants referred to Order 17 Rules 3 and 19(1) of the High
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Court of Nasarawa State (Civil Procedure) Rules, 2010 which allows a Judge to join necessary parties to a suit before it. He submits that in an application for joinder, one of the primary issues the Court is called upon to consider is whether the party seeking to be joined will be affected by the outcome of the Court’s Judgment. Where a party is likely to be affected by the outcome of a suit, it is just for the party to be joined – Green V Green (1987) 3 NWLR (Pt. 61) 480, 402; & Elegushi V Oseni (2005) All FWLR (Pt. 282), I837, 1859.
In the instant case, the Appellant claims that the earth-moving construction equipment/machines in dispute belong to it. It therefore contends that it is a necessary party as the pleadings of the Respondents contain allegations against it, and therefore that the suit cannot be effectively determined without it – Nwole V Iwuagwu (2004) All FWLR, (Pt. 200) 1604, 1618, F.
It is further contended that from the Plaintiffs’ reliefs and the counter-claim of the Defendants, the Appellant is a necessary party. Reference is made to paragraph 15 (xiii) of the 2nd Defendant’s Statement of Defence where the 2nd Defendant avers
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that the equipment which forms the subject matter of the suit, belongs to the Appellant. Therefore, the issue before the Court was the ownership rights or otherwise of the equipment in dispute. For the factors which a Court will take consideration in an application for joinder, reliance is placed on Carena V Arowolo (2008) Vol. 162 LRCN 85, 106.
In support of the contention that the Appellant is a necessary party who will be affected by the decision of the court, Counsel relies on – Abia V Cross River State Property Investment Ltd (2006) All FWLR (Pt. 339) 955, 976-977, F-B; & Regd. Trustees of National Assoc. of Community Health Practitioners V Medical Health Workers Union (2008) Vol. 158 LRCN 251, 2871. Reference is also made to Paragraphs 3, 6, 7, 8, 9, 10, 11, 12, 13, 18 of the Plaintiffs’ Statement of Claim, its Reply and Defence to the counter-claim which, it is claimed, relate to the Appellant as the name of the Appellant was prominently mentioned therein. Reference is also made to the exhibits attached to the Appellant’s affidavit.
?
Counsel also submits that where an affidavit is filed deposing to certain facts and the other party does
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not file a counter-affidavit, the facts deposed to in the affidavit would be deemed unchallenged, undisputed and admitted. Such admitted evidence requires no further proof. He therefore submits that the unchallenged and uncontroverted facts contained in the Appellants affidavit should have been deemed admitted – Adamu V Akukalia (2005) NWLR (Pt. 936) 263; Honeywell Flour Mills Plc V Ecobank (Nig) Ltd (2016) 16 NWLR (Pt. 1539) 387, 433, E-G; Maisaje V Hassan (2004) 11 NWLR (Pt. 883) 181; Ezeanah V Atta (2004) 7 NWLR (Pt. 873) 648; & Buhari V Obasanjo (2003) 17 NWLR (Pt. 850) 587.
Furthermore, Counsel submits that a Court is empowered to join any party through an application in line with Order 17 Rules 1 and 2 of the High Court (Civil Procedure) Rules Nasarawa State, 2010.
On the question of whether a judge is entitled to make use of documents filed in the suit in arriving at a decision for joinder, Counsel submits that it was wrong for a judge to rely on strange facts and draw conclusions as he did. A Court ought not to arbitrarily make use of documents in a Court file or outside the Court’s file, unless such a document or fact was put in
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evidence or they are allowed to be used under other provisions of the law, such as judicially noticed facts, or they are part of the processes of the Court or part of its records. The Memorandum and Articles of Association which the learned trial Judge anchored his ruling does not form part of the records, both at the lower Court and in this Appeal. – Maersk Line V Addide Investment Limited (2002) 11 NWLR (Pt. 778) 317, 374 per Ayoola, JSC; ACB Ltd V Awogboro (1996) 3 NWLR (Pt. 437) 383; (1996) 2 SCNJ 233; Vogt V Akin-Taylor (2012) 10 NWLR (Pt. 79).
Additionally, Counsel complains that the lower Court in its Ruling relied on witnesses? statements on oath that were yet to be adopted by the witnesses and who were yet to be cross-examined on such statements, as if they were affidavit evidence. He contends that averments in pleadings do not constitute evidence and cannot be taken as the truth unless oral evidence is led to prove them. It is contended that, but for the unsubstantiated averments and witness statement of the 1st and 2nd Defendants, the trial Court would have ruled otherwise – Okpa V Irek (2012) LPELR-8033 (CA).
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Finally, Counsel submits that the trial Court laid premium on the fact that the 1st Defendant referred to himself as Chairman of the Appellant and so imputed constructive notice on the Appellant without affording the Appellant opportunity to either accept or deny the assertion of the 1st Defendant contained in the 1st and 2nd Defendant pleadings. It is submitted that from the processes, the Appellant has fulfilled all of the conditions and has shown why it was necessary to be joined as a party in the suit. The Court is therefore urged to resolve these issues in its favour.
In responding to these submissions, learned Counsel for the 1st and 2nd Respondents refers to the decision of the Supreme Court in the case of Olawoye V Jimoh (2014) All FWLR (Pt. 718) 901 on the question as to who constitutes a necessary party. He submits that the Appellant was not able to show that it has an interest in the suit to warrant its joinder as a party to the suit. Reference is made to Order 17 Rule 17(2) of the High Court (Civil Procedure) Rules 2010 of Nasarawa State where it is provided that an application for joinder of a party shall be accompanied by the statement of claim or defence as
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the case may be, all exhibits intended to be used and the deposition of all the witnesses. In doing so, the provisions of Order 35 Rules 8 and 9 must be adhered to by specifically referring to the attached documents in the affidavit as exhibits and so marked. Counsel contends that although paragraphs 5 and 6 of the Appellant?s affidavit in support of the application for joinder made references to Exhibits A1, A2, A3 and B respectively, no such documents are marked in the entire application. To this extent, it is submitted that paragraph 3 at page 11 of the Appellant?s Brief of argument is misrepresented.
Counsel further submits that the first relief sought by the Plaintiffs and the first relief sought by the Defendants/Counter claimants reliefs do not in any way suggest that the Appellant is a necessary party. Instead, that the reliefs seek to vest ownership of all the equipment and tools in dispute in the 1st Plaintiff/1st Respondent or to the 2nd Defendant/4th Respondent, without fixing the Appellant in any of the claims/reliefs.
?
It is submitted that even though the Appellant claims that it is a joint company owned by the 1st
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Plaintiff/1st Respondent and the 2nd Defendant/4th Respondent; and that by virtue of their partnership agreement, all liabilities and assets formerly belonging to the 1st Plaintiff and 2nd Defendant were surrendered and transferred to the Appellant, the documents of incorporation of the Appellant do not reflect the name of the 1st Plaintiff/1st Respondent and that of the 2nd Defendant/4th Respondent as members/owners/shareholders of the Appellant. Also, they did not disclose a transfer of any equipment/asset or liability to the Appellant. Reliance is placed on Kwara Investment Co. Ltd V Garuba (2000) 10 NWLR (Pt. 674) 25.
Counsel submits that the Partnership Agreement which the Appellant heavily relied on to substantiate his assertion that the 1st Respondent?s assets had been transferred to it does not do so. Reference is made in particular to paragraph 2 of the said Agreement which provides that the 1st Plaintiff shall provide all necessary equipment and machinery for the execution of the project.
?
Furthermore, it is submitted that the 2nd Plaintiff, as a witness to the 1st Plaintiff, asserts that the equipment belongs to the 1st Plaintiff;
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whilst the 1st Defendant, who is a witness to the 2nd Defendant, also asserts that the equipment belongs to the 2nd Defendant. In addition, the 1st Defendant in paragraph 18(i) of his Statement of defence and in his witness statement on oath, stated that he is the Chairman of the Appellant Company. Similarly, he stated that he is both the Chairman of the Appellant and the Managing Director of the 2nd Defendant. Thus, the 1st Defendant is a party in his personal capacity and he also represents the 2nd Defendant as the Managing Director and as a witness, and therefore is fully aware of the claims in the suit. Yet, as the Chairman of the Appellant, he still sought reliefs that the equipment in dispute belong to the 2nd Defendant. Counsel submits that this same 1st Defendant, in order to cause delay in the suit, went behind and gave consent to the proposed witness of the Appellant to depose to a witness statement on oath.
?
In respect to paragraph 15(xiii) of the 2nd Defendant’s Statement of defence referred to by the Appellant, Counsel contends that the averment made reference to the equipment belonging to the Appellant and the 2nd Defendant without stating
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which one belongs to each of them; whereas the Plaintiffs in their relief and the Defendants in the relief in their counter claim both lay claim to the ownership of all the equipment in dispute. The mere mention of the name of the Appellant in the pleading does not vest interest or ownership of the equipment on the Appellant. It also does not mean that the Plaintiff has a cause of action against the Appellant.
Counsel submits that for the Court to have jurisdiction to join a person as a defendant, the plaintiff must have a claim against the person seeking to be joined. Hence, where there is no such claim against the person sought to be joined, there can be no jurisdiction. It is also the duty of the plaintiff to bring to Court a party whose presence is crucial to the resolution of his case. In other words, the plaintiff has the monopoly of deciding who to sue in any proceedings – In Re: Mogaji (1986)1 NWLR (Pt. 19) 759; Ayorinde V Oni (2000) 1 SCNQR 180; & Sapo V Summonu (2010) 11 NWLR (Pt. 1205) 374. Counsel therefore submits that the Appellant has no interest in the subject matter of dispute in the suit and therefore is not a necessary party. The existing
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parties are competent and necessary parties and without the Appellant, the suit would be effectively determined.
Counsel also submits that in the determination of whether to join a party to a suit, the Court ought to peruse the pleadings or the affidavit of the parties. The case of the 1st and 2nd Respondents is that the Plaintiffs do not have any claim against the Appellant; and that there is no document or any reliable and admissible evidence connecting the Appellant as owner of any of the equipment/tools in dispute. As a result, the Court would not exercise its discretion to join the Appellant – Chief of Army Staff V Lawal (2012) 10 NWLR (Pt. 1307) 62. Also, paragraph 10 of the Appellant?s affidavit in support of motion for joinder referred the lower Court to the parties’ pleadings. It is therefore submitted that by the combined effect of Section 122(2) (m) of the Evidence Act, 2011 and the decisions in Joseph V Kwara State Polytechnic (2014) All FWLR (Pt. 750) 1215; & Agbareh V Mimra (2008) 2 NWLR (Pt. 1071) 379, the Court has powers to take judicial notice of Court records and the case file, and to make reference to them, as well as use them
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when delivering Rulings or Judgments. Thus, the lower Court judicially, judiciously and within the confine of the laws, painstakingly went through the Court Record before holding that the Appellant’s application is not grantable and accordingly dismissed same. On the strength of this the argument of the Appellant?s Counsel faulting the use of pleadings, Court record and other documents contained in the Court file by the lower Court, is misconceived. The Court can make use of documents in its file despite the fact that they were not tendered and admitted as exhibits – Famudoh V Aboro (1991) 9 NWLR (Pt. 214) 210; & Akinola V. VC Unilorin (2004)11 NWLR (Pt. 885) 6.
Counsel submits that the lower Court, contrary to the contention of the Appellants, made use of the Appellant’s affidavit in considering the application. It is submitted that as a general rule, Courts act on uncontroverted affidavit. However, the Court is precluded from acting on an affidavit which, even though not controverted, is to its knowledge, false – Orient Bank Nigeria Plc V Bilante Int’l Ltd (1996) 5 NWLR (Pt. 447) 166, 180; Bedding Holdings Ltd V NEC (1992) 8 NWLR (Pt. 260) 428, 436.
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Counsel submits that the Appellant?s alleged interest in the subject matter of the dispute is centered on a company owned by the 1st Plaintiff and the 2nd Defendant; whereas facts on the incorporation document of the Appellant (contained at pages 242-245 of the Record of Appeal) is at variance with the claim, as neither the 1st Plaintiff nor the 2nd Defendant is a shareholder in the Appellant company. Therefore no Court would safely act on such facts as contained in the affidavit.
Counsel submits that by Section 36(1) and (5) of Companies and Allied Matters Act, (CAMA) 2004, it is mandatory for the Corporate Affairs Commission to register the Memorandum and Articles of Association as part of the requirements before a company is incorporated. Also, by Section 36(6) thereof, the certificate of incorporation shall be prima facie evidence that all the requirements of the Act in respect of registration and matters precedent and incidental to it, have been complied with; and that the association is a company authorized to be registered and duly registered under this Act.
Counsel submits that the Appellant’s certificate of incorporation (at
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page 241 of Record of Appeal) indicates that the Appellant is limited by shares. The Memorandum and Articles of Association are vital documents of incorporation which regulate the relationship vis-a-vis rights and obligations of members of a company. He contends that the lower Court rightly presumed the existence of such a vital document and accordingly held that the non-presentation of such a document, despite its existence, is fatal to the case of the Applicant. There are some circumstances which would warrant the Court to raise issues suo motu without affording parties a hearing on it, and this does not amount to breach of fair hearing – Shepherd Construction Co. Ltd V Kingston (2014) All FWLR (Pt.39 755) 390. Finally, Counsel submits that if the Appellant feels it has issues against any of the parties in this suit, he is at liberty to institute an action against such a party or parties. The Court is urged to resolve both issues against the Appellant, to dismiss the Appeal and to award costs of N500, 000.00 against the Appellant.
Findings
The crux of this Appeal is the decision of the lower Court to refuse the application of the Appellant to
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join as an interested party in the suit. From a close scrutiny of the pleadings of both the Plaintiffs before the trial Court, (now 1st and 2nd Respondents) and the Defendants (now 3rd and 4th Respondents), it is evident that both sets of parties lay exclusive claim to the ownership of the equipment in dispute and therefore are ad idem that the Appellant is not required in a complete determination of the suit.
Before then however, the Appellant has contended that the trial Court was in error when, in the consideration of its application for joinder, it made references to the pleadings of the parties as well as the witnesses? statements on oath filed in the case. However, the Appellant is mistaken in this submission as the law is not on its side. Indeed, the learned trial Judge was not precluded from looking into the processes filed in the substantive suit and making apposite use of them with regard to the application for joinder. This is notably so because the legal principle has been put beyond peradventure that a Court is competent to use documents outside an Applicant?s affidavit, but within the case file, to arrive at a just decision in a
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case. Courts have consistently held, and it needs to be emphasized, that it is not improper for a High Court to refer to documents in the file of the case before it, but outside the Applicant?s affidavit, in arriving at a decision. See the decisions of this Court inAyo-Ayodele Pharmaceutical Chemist (Nig.) Ltd V NIDB Ltd (2000) LPELR-10109(CA) per Onnoghen, JCA (as he then was); Ideh V Onyejese (1997) LPELR-8066(CA) 31, per Akpabio, JCA; Mhambe V Shidi (1994) 2 NWLR (Pt. 326) 321 at 330; Oke V Aiyedun (1986) 2 NWLR (Pt. 23) 548. Therefore, the action of the lower Court in this regard is in order.
Secondly, one of the major constituents or bedrock of the Appellant?s application for joinder was the documents purported to have been exhibited to the affidavit of the Applicant in support of the application to fulfill the conditions set out in Order 17 of the High Court (Civil Procedure) Rules of Nasarawa State, 2010, and also to establish his interest in the suit. Order 17 Rules 17 (1 )and 2 provide –
1.?Any application to add or strike out or substitute or vary the name of a plaintiff or defendant may be made to a judge by motion.<br< p=””
</br<
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2. Where the application is to add a plaintiff or a defendant, the application shall be accompanied by a statement of claim or defence as the case may be, all the exhibits intended to be used and the depositions of all the witnesses;
Provided that where the application is to substitute a deceased party with another person, the application may not be accompanied by the documents specified above.? (Emphasis supplied)
In the instant application, the Applicant purported to plead the attached documents as if the averments in the affidavit were the pleadings contained in a Statement of claim or defence. In addition, even though the documents were referred to as Exhibits ?A1?, ?A2? ?A3? and ?B? in the affidavit, the only document remotely marked in any way is the ?Proposed 3rd Defendant?s Statement of Defence? which was however marked Exhibit ?A?. Worse still, the said ?Proposed 3rd Defendant?s Statement of Defence? and the witness? statement on oath were not referred to at all in the affidavit. It is settled law that any document attached to an
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affidavit but which is not so marked as an exhibit, cannot be countenanced. See Ogundehin V Olubowale (2016) LPELR-41125(CA) 6. In addition, the documents are not even referred to in the affidavit.
In further substantiation of her application, the Applicant in paragraphs 5 and 6 her affidavit, referred to a Partnership Agreement, a Certificate of incorporation and a Memorandum of Understanding which it contended were pleaded and marked as Exhibits accordingly. These documents were not however so marked as contended. They were therefore strange processes to the application. The learned trial Judge was therefore right to discountenance these strange documents which accompanied the affidavit when he stated as follows at page 264 of the Record of Appeal:
?For all intents and purposes therefore, it cannot be said that there are any exhibits to this application as provided for in Order 17 Rule 17(2) of the Rules of Court.?
The law is that such documents should have been annexed or exhibited to the affidavit in support of the application as evidence of its entitlement to be joined as a necessary party to the suit. Without these documents,
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there was no evidence placed before the Court that the applicant was indeed a necessary party as claimed.
It is also trite law that where a deposition in an affidavit makes reference to a document or a situation that can only be proved by a certain document, it is important to attach those documents as evidence of the existence of the documents. See Titanlaye V David (2013) LPELR-20160(CA) 11, per Galinje, JCA (as he then was). Nonetheless, in spite of this finding, the lower Court still proceeded to consider the application on its merit since the decision is subject to review by the appellate Courts.
In respect of the contention of the Appellant that the lower Court should have acted on the Applicant?s affidavit since the Plaintiffs (now 1st and 2nd Respondents) did not file a counter affidavit in response, it is indeed the law that facts in an affidavit not challenged, contradicted or controverted by the opposing party are deemed admitted by him unless such facts on the face of it will lead to an absurdity if it is taken to be the truth of what is being sought to be established. In the absence of a counter-affidavit to an affidavit, the facts in
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the affidavit would generally be deemed unchallenged, undisputed and, in essence, admitted. Such admitted evidence requires no further proof. See Adeboye V Baje (2016) LPELR-40578(CA) 36, per Obaseki-Adejumo, JCA; Maisaje V Hassan (2004) 11 NWLR (Pt. 883) 181; Ezeanah V Attah (2004) 7 NWLR (Pt. 873) 648.
However, the Supreme Court in Ogoejeofo V Ogoejeofo (2006) LPELR-2308(SC) 14, per Mohammed, JSC held:
?It is also the law that the unchallenged and uncontroverted facts deemed admitted in the affidavit must be capable of proving and supporting the case of the Appellant as the Applicant. In other words, the evidence contained in the unchallenged affidavit must be cogent and strong enough to sustain the case of the Applicant.?
See also M.I.N. Ltd V M.F.K.W.A. Ltd (2005) 10 NWLR (Pt. 934) 645. Thus the absence of a counter affidavit is not per se a free pass to Judgment. This is because it is not in all cases that a counter-affidavit is necessary to controvert facts in an affidavit, especially where the depositions are self-contradictory. See Omowood Indust. Ltd V Regd. Trustees of Bible Believers Fellowship Church (2014)
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LPELR-23400(CA) 29, per Dongban-Mensem, JCA. No wonder, the Supreme Court in Okoye V Centre Point Merchant Bank (2008) LPELR-2505(SC) 32-33 per Tobi, JSC, clarified the position as follows:
?I should also say that affidavit evidence is not sacrosanct. It is not above the evaluation of the Courts. Like oral evidence, a Court of law is entitled to evaluate affidavit evidence in order to ensure it veracity and/or authenticity. While un-contradicted affidavit evidence should be used by the Court, there are instances when such affidavit evidence clearly tell a lie and the Courts cannot be blind to such a lie. One example will suffice. If a party deposes to an affidavit that 1st of April every year is Nigeria?s Independence Anniversary, a Court of law will certainly not accept such a deposition as true as the correct date is 1st of October. I hope I have made myself clear.? (Emphasis supplied)
This is exactly what the learned trial Judge did in the determination of the application. Affidavit evidence which is a bare allegation and/or a conclusion not supported by facts and/or documents needed to establish them, are omissions which are
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fatal to any application before the Court. Thus, where cases are tried upon affidavit evidence, the facts or depositions in such affidavits have to be proved like averments in pleadings. See Chairman, EFCC V Littlechild (2015) LPELR-25199(CA) 30, per Oseji, JCA; UBN Plc V Astra Builders (WA) Ltd (2010) 2-3 SC (Pt. 1) 60; General & Aviation Services Ltd V Thahal(2004) 4 SCM 52.
In order to determine whether, contrary to the finding of the lower Court, the Appellant is a necessary party in the proceedings, I have, (much as the lower Court did), reviewed its findings vis–vis the pleadings of the parties, (both Plaintiffs and Defendants), before the Court. By paragraphs 1-4, 8, 9, 10 and 11 of the Statement of claim, it is disclosed that the 1st Plaintiff is a Construction Company incorporated under the Laws of Israel and the 2nd Plaintiff is an Israeli citizen and businessman; while the 1st Defendant is the Managing Director of the 2nd Defendant, also a Construction Company registered in Nigeria. The Plaintiffs gave a graphic description of how the Appellant/Applicant Company came into being. The 2nd Plaintiff and 1st Defendant (and not their
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individual Companies) had come together and entered into a Partnership Agreement to incorporate a new Construction Company in Nigeria. They entered into a Memorandum of Understanding, and the new Company, being the Appellant, was duly incorporated. In the MOU, it was agreed that the 1st Plaintiff shall provide all the necessary equipment and machinery for the execution of projects by the Appellant. Thus, in anticipation of such construction works, the 1st Appellant imported some Caterpillars (the equipment in dispute) from Israel into the country. ?On his own part, the 1st Defendant in paragraphs 18(iv), (v), (vi) and (xii) of the 1st Defendant?s Statement of Defence, pleaded that the equipment in question belong to the 2nd Defendant and that he acted as an agent of the 2nd Defendant in his transaction with the Plaintiffs. It is informative that in the joint counter-claim of the Defendants, they expressly claimed that the equipment in dispute belong exclusively to the 2nd Defendant as it was the 1st Defendant who sent money to the 1st Plaintiff in Israel to purchase them. See, also paragraphs 15(xiii) (xiv) and (xv) of the 2nd Defendant?s
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Statement of Claim. All the witness statements of the parties served to buttress their opposing claims.
Most importantly, by paragraphs 1 and 2 of the Statement of Oath of the 1st Defendant, he states that he doubles as the Managing/Director of the 2nd Defendant as well as the Chairman of the Appellant/Applicant. By reason of this, the learned trial Judge drew the correct inference that, as Chairman of the Applicant seeking to be joined to the suit between the Plaintiffs and Defendants, he was the alter ego of the Applicant, and yet he still deposed in paragraph 8 of his witness statement thus:
?That the said equipment?s requested were for the exclusive ownership of the 2nd Defendant.”
In addition, the same 1st Defendant, as the sole witness of the 2nd Defendant, repeated this assertion of ownership of the equipment by the 2nd Defendant in paragraph 11 of his Witness Statement on Oath for the 2nd Defendant. Thus, by the positions taken by both Plaintiffs and Defendants, each side claimed ownership of the equipment in dispute.
?To crown it all, by the ?Statement of Share Capital and Returns of Allotment of
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Shares? filed at the Corporate Affairs Commission which the Appellant attached to its affidavit in support of the application for joinder, (pages 242-243 of the Record of Appeal), it is the 2nd Plaintiff and the 1st Defendant who, as individual natural persons, are major shareholders in the Company. The 1st Plaintiff and the 2nd Defendant, both incorporated companies, are nowhere reflected. Therefore, contrary to the contention of the Appellant, there was no evidence placed before the lower Court to show that the two companies were subsumed into the Appellant by the Partnership Agreement, to warrant the presumption that the equipment in dispute between the parties was now vested in the Appellant. In respect of the Appellant?s claim that it is a joint company owned by the 1st Plaintiff/1st Respondent and the 2nd Defendant/4th Respondent, both incorporated Construction Companies; and that by virtue of their partnership agreement, all liabilities and assets formerly belonging to them had been surrendered and transferred to the Appellant, the documents of incorporation of the Appellant relied on by the Appellant do not reflect the names of these
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two Companies as members or owners or shareholders of the Appellant. In addition, the documents do not disclose a transfer of any equipments or assets to the Appellant, as claimed by it. It is the law that a corporation?s assets and liabilities can be transferred to another corporate body through:
1. Statutory Proclamation; and
2. Acquisition by the corporate body by virtue of company’s resolution to that affect pursuant to its Memorandum and Articles of Association.
See: Kwara Investment Co. Ltd V Garuba (2000) 10 NWLR (Pt. 674) 25. The Appellant failed to show that the 1st Plaintiff or even the 2nd Defendant were acquired (or that there was an acquisition) and it also failed to produce any evidence, (particularly in the form of the Memorandum and Articles of Association) showing the transfer of such assets. Thus, I agree with Counsel for the 1st and 2nd Respondents that the Applicant failed to prove with credible evidence that it has interest in the subject matter in dispute. ?In respect of the Partnership Agreement which the Appellant heavily relied on to claim that 1st Respondent?s assets had been transferred to the Appellant,
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there is nothing therein to justify this assertion as it does not transfer the 1st Plaintiff?s assets to the company to be incorporated. In particular, paragraph 2 thereof expressly provides that the 1st Plaintiff shall provide all necessary equipment and machinery for the execution of the project. It is true that indeed, the Partnership Agreement between the 1st Plaintiff and the 2nd Defendant contemplates only the 1st Plaintiff and the 2nd Defendant as owners/shareholders or members of the intended/intending company to be incorporated by them, both of them being corporate bodies. However, in spite of this, the members, owners or shareholders of the Appellant were ultimately seven (7) natural persons, excluding the 1st Plaintiff and the 2nd Defendant companies. In actual fact, the 2nd Plaintiff (and not 1st Plaintiff Company), hold the largest share in the Appellant Company, followed by the 1st Defendant (and not the 2nd Defendant Company). It is significant that although both persons were aware of the existence of the Appellant, none of them applied for it to be joined, and more importantly, none of them claimed that the equipment mentioned in the
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reliefs in the claim and counter-claim belonged to the Appellant. Therefore, indeed the Appellant has no stake or interest in the suit. The upshot of all these is that, since the Appellant is an artificial person who acts through its principal officers, it has spoken through the 1st Defendant, the self-confessed Chairman of the Appellant, who has fiercely laid claim to the equipment in dispute as exclusively belonging to the 2nd Defendant. In the same vein, the 2nd Plaintiff and the 1st Defendant are the major shareholders of the Appellant. It is therefore difficult to see the necessity of the Appellant?s presence in an effectual and complete determination of the suit. This is more so that the Plaintiffs have not sought any reliefs against the Appellant neither have the counter claimants. The mere mention made of the Appellant in the pleadings notwithstanding, as the averments wherein it is mentioned only have to do with the history and formation of the Appellant as a company. I therefore cannot agree more with the findings of the learned trial Judge at pages 268-269 of the Record as follows: ?Now assuming that I am to believe the
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assertion in paragraph 11 of the supporting affidavit of the of this application that the parties on record seek to exclude the Applicant deliberately so as to cause confusion, I now ask how true is that? I do not believe this because if the 1st Defendant is the Chairman of the Applicant as well as the Director of the 2nd Defendant and himself a party, the mere fact that he knows of this suit means that the Applicant is aware of the suit. This is so again because in one of the documents the 2nd Defendant frontloaded along with its statement of defence, both the 1st Defendant and the said Joseph Dako are both listed as Directors. I am not aware of any law that says all the Directors must know of an issue before the company can be deemed to know of it, after all a person such as the 1st Defendant who is both the Chairman as well as a Director of the Applicant should be more conversant with its affairs than Joseph Dako who is only a Director. It seems to me that the standpoint of the Plaintiff?s counsel is more plausible because the Applicant as an artificial person who breaths in and breaths out through the 1st Defendant and so to me the instant
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application is a veiled attempt to cause confusion or some dislocation in this sojourn.
To be gainfully said is that I think this is one of the instances that in the interest of justice and based on economic realities, the veil of incorporation can be pierced to see the human beings behind the Applicant Company and I am convinced that the 1st Defendant has three faces i.e. he is a natural human being who masked behind the 2nd Defendant as a Director and major shareholder and the same person who mask behind the Applicant company as Chairman of the Board of Trustees. I therefore do not see how the Applicant can be heard to say it was deliberately excluded from this suit especially as the 2nd Plaintiff is also a Director of the Applicant Company and yet never gave any clue of the Applicant being the owner of the subject of the dispute.? (Emphasis supplied) The law governing joinder of parties makes it explicitly clear that it is only where there are questions in proceedings which cannot be effectively and completely settled without the presence of a party, that such a party can be joined in an action. In the instant case, the 1st and 2nd
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Respondents (1st and 2nd Plaintiffs) did not have any cause of action or reliefs against the Appellant to have warranted joining him in the suit. In Ajayi V Jolayemi (2001) 10 NWLR (Pt. 722) 516, 537-538, the Supreme Court held ?
?The principle guiding joinder of parties as provided in our various rules of Court has received judicial interpretation in our Courts and Courts of other Common Law jurisdiction. The purpose of the rules is to allow a plaintiff to proceed in the same action against whom he alleges to be entitled to any relief whether his claim is brought against the defendants against whom he alleges to be entitled to any relief whether his claim is brought against the defendants jointly, severally or in the alternative? It is improper to join as co-defendants persons against whom the plaintiff has no cause of action and against whom he has made no claim
See also PDP V Philips (2010) LPELR-8980(CA) 28, per Bada, JCA.
The purpose of joinder is to enable the Court bind parties who ought to be bound by the decision of the Court; and in a proper case, the Court can join a third party as a co-defendant,
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even against the wish of a plaintiff. However, a joinder would be refused when the Court is satisfied that the case can be effectively and completely determined without the joinder. The law is that a person is a necessary party to an action where it is desirable that he should be bound by the result and where the question in controversy cannot be effectually and completely settled unless he is a party. The principles guiding the joinder of parties are as follows:
1. Is the cause or matter liable to be defeated by the non-joinder?
2. Is it possible for the Court to adjudicate on the cause of action set up by the plaintiff unless the third party is added as a defendant?
3. Is the third party a person who ought to have been joined as a defendant?
4. Is the third party a person whose presence before the Court as defendant will be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter?
See: Green V Green (1987) 3 NWLR (Pt. 61) 480; ACB V Nwaigwe (2000) LPELR-5212(CA) 8; Peenok Investment Ltd V Hotel Presidential (1982) 12 SC 1.
?
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From all the above review and analysis of the facts on Record, I agree with the lower Court and therefore join in holding that the Appellant has failed woefully in satisfying the Court that he is a person who should be joined as a necessary party; and that he is one whose joinder as a party is vital for the purpose of adjudicating effectually and completely upon the matter in dispute, and that it is just and convenient to so join him. Going by the dissected relationship between the 2nd Plaintiff and 1st Defendant to the Appellant, it is obvious that the Appellant cannot be said to be a necessary party, as it (the Appellant), is made up of the 2nd Plaintiff and 1st Defendant as its major shareholder, and the 2nd Defendant as its principal officer, being the Managing Director. Therefore, no matter the outcome of the case, the Appellant?s interest is well represented; and more importantly, the case can be effectually and completely decided without the Appellant. In addition, the claims and reliefs sought by the Plaintiffs are wholly against the 1st and 2nd Defendants, with none sought against the Appellant. Therefore, the Plaintiffs cannot be compelled to make any claim
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against the Appellant.
Finally, it is the law that where a trial Court has satisfactorily performed its function of evaluating the evidence before it and correctly ascribing probative value thereto, an appellate Court will neither intervene nor interfere with the trial Court?s findings – Cash Affairs Finance Ltd V Island Bank (2000) 5 NWLR (Pt. 658) 580. The learned trial Judge did a good job of painstaking assessing and evaluating the evidence adduced to buttress the application, and in my respectful view, came to a proper finding. I therefore decline to interfere with the sound findings of the learned trial Judge. Hence, the two issues for determination are resolved against the Appellant and in favour of the 1st and 2nd Respondents.
Accordingly, I find no merit in the Appeal. It fails and is dismissed. I affirm the Ruling of the lower Court delivered on 16th January, 2017. I award costs of N100,000.00 to the 1st and 2nd Respondents against the Appellant.
ONYEKACHI AJA OTISI, J.C.A.: My learnt Brother Jummai Hannatu Sankey, JCA, made available to me a draft copy of the Judgment just delivered, dismissing
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this appeal. I agree with, and adopt as mine, the resolution of the issues raised therein.
I also dismiss the appeal and abide by the orders made in the lead Judgment, including the order as to costs.
JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Sankey, JCA. I agree with the reasoning and conclusion therein which I adopt as mine in dismissing the appeal.
?I abide by the order as to costs contained in the lead judgment.
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Appearances:
O.H Okereke, Esq.For Appellant(s)
Nathaniel Adejinle, Esq. for 1st and 2nd Respondents.
Shaka Awaliene, Esq. for the 4th Respondent,holds the
brief of Kennedy Khanoba, Esq. for the 3rd RespondentFor Respondent(s)
Appearances
O.H Okereke, Esq.For Appellant
AND
Nathaniel Adejinle, Esq. for 1st and 2nd Respondents.
Shaka Awaliene, Esq. for the 4th Respondent,holds the
brief of Kennedy Khanoba, Esq. for the 3rd RespondentFor Respondent
