OANDO PLC v. MRS. COMFORT AJAIGBE & ORS (2015)

OANDO PLC v. MRS. COMFORT AJAIGBE & ORS

(2015)LCN/7905(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of June, 2015

CA/L/627/2005

RATIO

PRACTICE AND PROCEDURE: FINAL DECISION AND INTERLOCUTORY DECISION; WHEN IS A DECISION OR JUDGEMENT A FINAL DECISION AND WHEN IS IT AN INTERLOCUTORY DECISION

Now, it is settled that where an order, decision or Judgment finally and completely determines rights of parties, it is a final decision; and where the order, decision or Judgment does not finally and completely determine the rights of parties, it is an interlocutory decision only. In other words, the determining factor is not whether the Court has finally determined an issue but whether or not it has finally determined the rights of the parties in the claim before the Court. – see Owoh v. Asuk (2008) 16 NWLR (Pt. 1112) 113 SC, Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924 SC, Akinsanya v. UBA (1986) 4 NWLR (Pt. 35) 273 SC, Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5 SC and Igunbor v. Afolabi (2001) 11 NWLR (Pt. 723) 148 at 165 where Karibi-Whyte, JSC, stated the position of the law, as follows –
“A final order or Judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merit. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles some step or question but does not adjudicate the ultimate rights of the parties, in the action. However, where the order made finally determines the rights of the parties as to the particular issue disputed, it is a final order even if arising from an interlocutory application. For instance an order of committal for contempt arising in the course of proceedings in an action is a final order.” per. AMINA ADAMU AUGIE, J.C.A.

APPEAL: GROUND OF APPEAL; WHEN WOULD A GROUND OF APPEAL AMOUNT TO A QUESTION OF LAW AND A QUESTION OF MIXED LAW AND FACT

It is settled law that where a ground of appeal reveals a misunderstanding by a Court of the law or a misapplication by it of the law to the proved or admitted facts, it would be a question of law but where it requires questioning the evaluation of facts before the application of the law, it would amount to a question of mixed law and fact – see Ononuju v. A-G Anambra State (2009) 10 NWLR (Pt. 1148) 182 SC and Ogbechie v. Onochie (supra). per. AMINA ADAMU AUGIE, J.C.A.

DEFINITION OF WORDS; CLAIM; THE DEFINITION OF THE WORD “CLAIM”

Black’s Law Dictionary, 8th Ed., defines the word “claim” as – “the aggregate of operative facts giving rise to a right enforceable by a Court”, which is also termed “claim for relief”; “the assertion of an existing right”; and also –
“A demand for money, property or a legal remedy to which one asserts a right, especially, the part of a complaint in a civil action specifying what relief the Plaintiff asks for”. per. AMINA ADAMU AUGIE, J.C.A.

PRACTICE AND PROCEDURE: CAUSE OF ACTION; THE MEANING OF CAUSE OF ACTION

From the authorities on the subject, “cause of action” means –
(a) A cause of complaint;
(b) A civil right or obligation for determination by a Court of law;
(c) A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine;
(d) Consequent damages;
(e) Every fact which would be necessary for the Plaintiff to prove, if traversed in order to support his right to the Judgment of the Court. It does not comprise every piece of evidence that is necessary to be proved;
(f) All those things necessary to give a right of action whether they are to be done by the Plaintiff or a third person; and
(g) It is a factual situation, which enables one person to obtain a remedy from another in Court in respect of Injury.
See A-G Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 SC, A-G Fed. v. ANPP (2003) 12 SCNJ 67, Nwokedi v. Egbe (2005) 9 NWLR (Pt. 930) 293, Mobil Oil Plc. v. D.E.N.R. Ltd. (2004) 1 NWLR (Pt. 853) 142, and Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182 SC, wherein Edozie, JSC, observed –
“A cause of action is the bundle or aggregate of fact, which the law will recognize as giving the Plaintiff a substantive right to make the claim for the relief or remedy being sought. Thus, the factual situation on which the Plaintiff relied to support his claim must be recognized by law as giving rise to a substantive right capable of enforcement or being claim against the Defendant”.
In essence, a cause of action is the totality of facts that the law will accept as giving a claimant the basic right to make a claim for the relief being sought. We must also bear in mind that each case is considered on its own merit, and there is no one-case-fits-all in our legal system. In other words, no two cases are exactly similar – see Dokubo Asari v. FRN (2007) 6 SCNJ 192. per. AMINA ADAMU AUGIE, J.C.A.

DAMAGES: GENERAL DAMAGES; WHETHER GENERAL DAMAGES FOR PERSONAL INJURIES OR FOR ANY INJURY NEED NOT BE SPECIFIED IN THE CLAIM

At any rate, it is settled that general damages for personal injuries or for any injury need not be specified in the claim – see Akinsowon v. Akinjise & Anor. (1974) 4 UILR (Pt. IV) 473. Thus, the difference in the quantum of damages they each claim, would not, at the end of the day, count against the joint action brought at the lower Court, because any award of damages will be at large and/or at the discretion of the trial Court, based on the evidence. Rules of Court are designed to be lubricants of the machinery of justice – See Nwora & Ors. v. Nwabueze & Ors. (2011) LPELR-SC.418/2010 and they are also seen as “beacon lights” illuminating the path leading to justice – see D.Y.S. Trocca Valsesia & Co. v. Osaghae (2008) All FWLR (Pt. 413) 1313, and U.T.C. (Nig) Ltd. v. Pamotei (supra), where the Supreme Court clearly said-
“Rules of procedure are made for the convenience and orderly hearing of cases in court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the case, to my mind, will be making the Courts slavish to the rules. This certainly is not the raison d’etre of rules of Court.” per. AMINA ADAMU AUGIE, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

OANDO PLC Appellant(s)

AND

1. MRS. COMFORT AJAIGBE
2. MRS. RASHIDAT ISIAKA
3. MRS. ZAINAB KAMORUDEEN Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Respondents were the victims of kerosene explosions that occurred at different locations in Lagos, and on different dates. They filed a joint action against the Appellant at the Lagos State High Court, wherein they claimed –
“The sum of N22,075,200.00 being special and General damages and compensation for the permanent bodily injuries, medical bills, loss of earnings and destruction of personal properties all resulting from the direct negligence for sale of contaminated killer kerosene which explosions and fire incidence occurred on 11/10/2001, 17/10/2001 and 15/11/2001 respectively to which the Defendant is directly liable in damages and compensation to the Plaintiffs”.

The Appellant entered a conditional appearance, and also filed a Notice of Preliminary Objection to the hearing of the Suit on the following Grounds-
i. The action of the Claimants/Respondents is incompetent or not properly constituted in that the Claimants have jointly brought this action involving distinct and separate causes of action where no common question of fact arise in relation to the joint claims or individual claims of the Claimants/Respondents;
ii. The Court does not exercise jurisdiction over an incompetent or improperly constituted action.

The Objection was brought pursuant to Order 13, rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004, which provides as follows –
“All persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such Claimant(s) as may be found to be entitled to relief and for such relief as he or they may be entitled to without amendment”.

Parties filed and adopted Written Addresses, and other provisions of the said High Court Civil Procedure Rules that got thrown into the mix are –
Order 13 rule 16(1), which provides as follows –
“No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a judge may deal will the matter in controversy so far as regards the rights and interest of the parties actually before them”.
Order 14 rule 1 of the said High Court Civil Procedure Rules that says –
“Subject to the following rules of this Order, the Claimant may unite in the same action several causes of action; but if it appears that they cannot be conveniently tried or disposed of together a Judge may order separate trials of any such causes of action or may make such order as may be necessary or expedient for the separate disposal thereof”.
Order 14 rule 4 of the same set of Rules that further provides as follows –
“Claims by Claimants jointly may be joined with claims by them or any of them separately against the same Defendant”.

In his Ruling dated 11/4/2005, the learned trial Judge, Obadino, J., held –
“The issue now is whether Order 14 permits several Claimants to unite several causes of action in one action. Defendant Counsel said no. He said that Order 14 Rule 1 only permits a joinder of causes of action where there is a sole claimant. This submission flies in the face of Order 14 Rule 4 which provides – – Defendant counsel submitted at paragraph 5.8 of his Reply Address that the word “may” in the rule should be interpreted to mean that several claimants with several causes of action wherein common questions of law and fact would arise may or may not join together to claim against the same Defendant. He said the several Claimants must satisfy the condition that common questions of law and fact arise as stated in the case of Ayankoya v. Olukoya (supra). Since there is no proviso to Order 14 Rule 4, this submission cannot stand. In Ayankoya v. Olukoya, Iguh, JSC at page 29-30 stated the two conditions to be established by Plaintiffs seeking to join different causes of action in one suit as follows:-
“(i) that the right to relief is in respect of or arises out of the same transaction and
(ii) That if separate actions were brought by such persons, a common question of law or fact would arise.”
It is noted that the conditions stated above were in respect of and are applicable under Order 8 Rule 1 of the Oyo State High Court Civil Procedure Rules 1978, which is in pari materia with the amended Order 16 Rule 1 of the English Rules.
Earlier, I have conceded that the old Order 16 Rule 1 of the English Rules is the one that is in pari materia with our Order 13 Rule 1. Therefore, these conditions sated by Iguh, JSC are not applicable to the 2004 Rules, and this present action. For this same reason, I discountenance the argument of Claimant Counsel in paragraph 3.4 of his Written Address. In the case of Ayinde v. Akanji (1988) All NLR 59 heavily relied on by Defendant Counsel, one of the issues for determination relevant to this case as stated by Obaseki, JSC at 71 is:-
“Whether the Plaintiffs/Appellant could sue in a representative capacity on behalf of 114 customary tenants to claim for trespass and injunction when their interests and causes of action were not the same against ten different Defendants/Respondents when there could be no question or claim for joint liability in trespass or joint liability to pay damages.”
The Court held that the proprietary right of each tenant is in respect of his own holding. The right cannot be exercised over another holding not granted to him. When there is trespass to his holding it is he alone who can sue. Thus, for trespass to the 114 tenants, each tenant to the exclusion of the others has right to sue the trespass to his holding and the damage he can claim is damage committed in respect of entry to his own holding. Relying on Amachree v. Newington (supra) the Court held that there was no joint tort. The causes of action though similar are in fact distinct and different actions that ought to have been brought by each of the 114 tenants. As I have noted, this case as well as the English cases earlier referred to interpreted the equivalent provisions of our Order 13 Rule 1. I have also said that Order 14 Rules 1 and 4 of the 2004 Rules must be read together with order 13 Rule 1. Since the Claimants in this case have exercised their option under Order 14 Rule 4 to have their claims joined together in this action, their joint action is not incompetent. The only proviso is in Rule 1 i.e. if it appears to the Court that their causes of action cannot be conveniently tried or disposed of together, the Judge may order separate trials. In this case, it is my view that the different causes of action of the Claimants can be conveniently tried together. Assuming that the three claimants tried three different actions against the same Defendant and the cases are all pending in this Court pursuant to Order 37 Rule 7 on the application of the claimants, the three actions would be consolidated and determined at the same time though the actions remain separate actions. The purpose or rationale for consolidation and for joinder of these three causes of action is the same that is to save cost and time and save multiplicity of actions. The purpose or object of the 2004 Rules is “the achievement of a just efficient and speedy dispensation of justice”. The Defendant has not stated the prejudice it will suffer if the three causes of action are tried in one action. I am inclined to agree with Defendant Counsel (sic) that this preliminary objection is an attempt to rely on technicalities. The current attitude of Courts is presently geared towards the attainment of substantial justice and not a reliance on technicalities to defeat a right. Asim (Nig) Ltd. v. L.B.R.B. Dev. Authority (2002) 8 NWLR (Pt. 769) 349. See also Onakoya v. FRN (2002) 11 NWLR (Pt. 779) 595 SC. Since the Defendant will not suffer any prejudice by the constitution of this suit. I find this preliminary objection totally unmeritorious. It is accordingly dismissed with N5,000.00 costs in favour of the Claimants”.

Dissatisfied with the Ruling, the Appellant appealed to this Court with a Notice of Appeal containing 3 Grounds of Appeal, which complain that –
1. The learned trial Judge erred in law when she dismissed the Appellant’s preliminary objection challenging the competence of the Respondents’ action.
Particulars
i. The Appellant’s preliminary objection was brought under Order 13, Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2004 and the inherent jurisdiction of the Court on the grounds that:-
(a) The action was incompetent, the Respondents having jointly brought an action involving distinct and separate cause of action where no common question of fact arose in relation to their joint claims or individual claims;
(b) The Court ought not to exercise jurisdiction over an incompetent action injury to their persons and property on different dates and in varying degrees.
ii. No common question of fact arose in the Respondents’ joint claim.

2. The learned trial Judge erred in law when she held that – “Since the Claimants in this case have exercised their option under Order 14 rule 4 to have their claims joined together in this action, their joint action is incompetent”.
Particulars
i. Order 14 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004 provides that – “Claims by Claimants jointly may be joined with claims by them or any of them separately against the same Defendant”.
ii. The action of joining separate claims against the same Defendant do not extend to the Respondents each of whom had a separate and distinct cause of action and in all which causes of action no common questions of fact arose.

3. The learned trial Judge misdirected herself when, in relying on the provisions of Order 14 Rule 1 of the High Court of Lagos State (Civil Procedure Rules) 2004, she stated that – “The Defendant (i.e. the Appellant herein) has not stated the prejudice it will suffer if the three causes of action are tied in one action”.
Particulars
i. The complaint of the Appellants before the lower Court was that the action, having been jointly brought by the Respondents, who each had a distinct and separate cause of action where no common questions of fact arose, was incompetent and by virtue of which the Court ought not to exercise jurisdiction;
ii. The Appellants need not suffer prejudice before the Court could decline to exercise its jurisdiction over an incompetent action;
iii. The proviso to Rule 1 of Order 14 (whereby the Judge may order separate trials of several causes of action which may not be conveniently tried together) upon which the learned trial Judge relied applies only to several causes of action by a sole Claimant and does not apply to several causes of action by several Claimants.

The Appellant distilled three Issues for determination from the said three Grounds of Appeal in its Brief of Argument settled by R.A. Oluwa, Esq. i.e.
(1) Whether the Respondents’ joinder of their separate causes of action is permissible under Order 13 rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004;
(2) Whether by virtue of Order 14 rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004, the option of joining separate causes of action in which no common interests arose was open to the Respondents; and
(3) Whether in challenging the competence of the Respondents’ action on grounds of misjoinder of causes of action, the Appellant was under the burden of showing the prejudice it would suffer by the Respondents’ joinder of causes of action.

The Respondents, however, submitted in their Brief prepared by Vincent Ikwunne Nwana, Esq., that the sole Issue that calls for determination is –
“Whether in the circumstances of this case the learned trial Judge erred in law or fell into misdirection of law by dismissing the Appellant’s Notice of Preliminary Objection and relying on Order 14 Rule 1 and 4 of the 2004 Rules to hold that the Respondents’ case is competent”.

They also contend that this Appeal is incompetent ab initio because being an interlocutory appeal not purely based on points of law; the Appellant should have applied for leave of this Court to file same as required by law.

They cited Sections 241(1)(b) and 242(1) of the 1999 Constitution, and Alor v. Ngene (2007) 17 NWLR (Pt. 1062) 163 on the two tests used in determining whether an Order of Court is interlocutory or final, and argued that the lower Court’s Order is interlocutory for the following reasons –
a) The lower Court only dismissed the Notice of Preliminary Objection on joinder or misjoinder of parties and causes of action.
b) The lower Court by the order did not decline jurisdiction to entertain the matter, but rather the Court ordered the Appellant to file its defence for a determination of the issues in dispute.
c) Since the lower Court did not dabble into the substantive case it did not determine the rights of the Parties to the litigation.

They submitted that as the Order is interlocutory in nature, any ground of appeal challenging it other than a ground complaining of error of law must be with leave of Court by virtue of Sections 241 & 242 of the Constitution; and that the Notice of Appeal ought to have been filed with leave of Court.

Furthermore, that the 3 Grounds of Appeal raised either issues of fact or at best, grounds of mixed law and fact, and since no leave was obtained, they are liable to be struck out, and citing Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt. 450) 531 and Ogbechie v. Onochie (1986) 1 NWLR (Pt. 70) 370, on the characterization of a ground of law and one of mixed law and fact, they argued that the Grounds of Appeals are of mixed law and fact because –
– Ground one is a complaint against the dismissal of the Appellant’s preliminary objection challenging the competence of [their] action. The Particulars show that the complaint is on joint action involving distinct and separate cause of action where no common question of fact arose in relation to the killer kerosene imported by the Appellant and sold to the Respondents. The finding the Court must make in this issue is purely facts and has no colouration of pure grounds of law.
– Ground two is a complaint on the holding of the lower Court that [they] rightly exercised their option under Order 14 Rule 4 to have their claims joined together in this action. – – Issue of joinder or misjoinder of parties or causes of action are findings the Court must make based on the facts placed before [it]. The particulars is also in support of [their] submission that a consideration of ground two must necessary anchor on consideration of the entire facts vis-‘E0-vis Order 14 Rule 4, therefore Ground two is on mixed law and fact.
– Ground 3 is a complaint against the lower Court’s Ruling that the Appellant has not stated the prejudice it will suffer if the cause of action are tried in one action. The facts from the state of pleading show that there is only one cause of action available to [them] i.e. the importation and sale of killer kerosene by the Appellant to which [they] sustained injuries by usage of same. By that a common question of facts arose amongst [them]. This Ground is one of mixed law and fact since it involves the consideration of the entire fact of this case. What is more, it is the facts of each case that will determine whether the decision of a Court meets the justice of the case.

They urged us to strike out the said 3 Grounds of Appeal, and the 3 Issues distilled there-from by the Appellant. They predicated their position on the ground that the said Issues were distilled from the said Grounds of Appeal, and this Court cannot embark on a surgical exercise to separate arguments canvassed on an incompetent issue. Thus, we were urged to dismiss the appeal with substantial cost on grounds of incompetence and lack of merit.

The Appellant countered in its Reply Brief that while they deployed energy towards demonstrating that this Appeal is against an interlocutory order, it is most apparent that the Appeal is against an interlocutory order, therefore, no dispute arises as to whether the order appealed against is an interlocutory order, and their arguments in that regard are unnecessary; that they correctly submitted that grounds of appeal, which complain about the lower Court’s misunderstanding of the law or misapplication of the law to facts, which have already been proven or admitted are grounds of law; and that the Grounds of Appeal in its Notice of Appeal complain about –
i. The error on the part of the learned trial Judge in dismissing [its] Objection brought under Order 13 Rule 1 of the Rules of the trial Court despite the fact that the Statement of Claim disclosed that each Respondent pleaded different issues of fact as to the different venues and dates of the occurrence of their injuries and differences in the extent of their injuries (i.e. Ground 1);
ii. The error on the part of the learned trial Judge in concluding that by virtue of Order 14 Rule 4 of the Rules of the trial Court, the Respondents had correctly exercised the option of joining their claims together in a single action when the said Rule does not accommodate the joinder of such separate claims (Ground 2);
iii. The misdirection on the part of the trial Court in stating that while Order 14 Rule 1 – – – provided for separate trial of several causes of action, which could not be conveniently tried together, [it] had not demonstrated the prejudice it would suffer by the joint trial of the Respondents’ separate causes of action when Order 14 Rule 1 applies only to several causes of action by a sole claimant (Ground 3).

It also cited Marine Management Associates Inc. v. National Maritime Authority (2012) 18 NWLR (Pt. 1333) 506, where the Supreme Court held –
“Five particular classes of errors of law, which when addressed by the grounds can be categorized as grounds of law have been set out in the decision of this Court in Comex Ltd. v. N.A.B. Ltd. (1997) 3 NWLR (Pt. 496) 643 at 656-675 – – while affirming the dictum of Nnaemeka-Agu, J.S.C. (of blessed memory) in Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744-745 paras. C-E to wit-
1. It is an error in law if the adjudicating Tribunal took into account some wrong criteria in reading its conclusion or applied some wrong standard of proof or, if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors. See O’Kelly v. Trusthouse Forte Plc. (1983) 3 All E.R. at page 456.
2. Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases and inferences drawn therefrom are grounds of law: Ogbechie v. Onochie (No. 1) (supra) at pp. 491-492.
3. Where a ground deals merely with a matter of inference even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted fact. Edwards v. Bairstow (supra) at p. 55 H.L. For many years, it has been recognized that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary facts, are matters upon which an appellant Court is as competent as the Court of trial: See Benmax v. Austin Motor Co. Ltd. 9149 All ER 326 at 327.
4. Where a Tribunal states the law on a point wrongly, it commits an error of law – – –
5. Lastly I should mention one class of grounds of law, which have the deceptive appearance of grounds of fact, id est where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury. Before a Judge sitting with a Jury could have left a case to the Jury there ought to have been more than a scintilla of evidence. So, for this rather historical reason, a ground of appeal complaining that there was no evidence or no admissible evidence, upon which a decision or finding was based, has always been regarded as a ground of law. See Odgers; On Pleading and Practice (20th Ed.) p. 372 also the decision of the House of Lords in Edwards (Inspector of Taxes) v. Bairstow (supra) at p. 491 paragraph 14, My Lord Eso, J.S.C. citing with approval an article by C.T. Emery in Vol. 100 L.Q.R. held:
“If the Tribunal purports to find that a particular event occurred although it is seized of no admissible evidence that the event did in fact occur, it is a question of law.”

Based on the foregoing decision, the Appellant submitted as follows –
i. Ground 1 (which complains of the error in dismissing [its] objection despite disclosure in the Statement of Claim of different causes of action by each of the 3 Respondents) falls under the 2nd and 3rd class of error of law;
ii. Ground 2 (which complains of the error in the exercise of an option which Order 14 Rule 1 does not accommodate) falls under the 2nd category of error of law; and
iii. Ground 3 (which complains of the error in wrongly imposing on [it], the non-existent burden of demonstrating the prejudice to be suffered by [it] by the joint trial of the 3 separate causes of action) also falls under the 2nd category of error of law.

It also argued that at that stage, no facts in issue had arisen as it had not yet filed its Statement of Defence, thus, the Statement of Claim encompassed facts that were not yet in dispute, while the objection called for the correct application of Order 13 Rule 1 to the yet undisputed facts averred therein; so, the Grounds are grounds of pure law as they complained of the failure to correctly apply Order 13 Rule 1 to the undisputed facts disclosed in the Statement of Claim and the misapplication of Order 14 Rules 1 and 4.

In this case, there is no contest that the Ruling is an interlocutory decision, and the Appellant is standing on firm ground with its submission that the three Grounds of Appeal are grounds of law. It is settled law that where a ground of appeal reveals a misunderstanding by a Court of the law or a misapplication by it of the law to the proved or admitted facts, it would be a question of law but where it requires questioning the evaluation of facts before the application of the law, it would amount to a question of mixed law and fact – see Ononuju v. A-G Anambra State (2009) 10 NWLR (Pt. 1148) 182 SC and Ogbechie v. Onochie (supra). In this case, the Appellant merely filed a Notice of Preliminary Objection, and there was no question of any evaluation of evidence carried out by the lower Court in dismissing same.

The long and short of is that the Respondents’ argument on this score totally lacks merit, and is of no consequence in this Appeal. Even so, I will adopt the Issue formulated by the Respondents in dealing with this appeal. In my view, the Appellant’s three Issues amount to a mere splitting of hairs, which scatters rather than underscore the crux of the Issue, in this Appeal. The gist of the Appellant’s contentions in the Appeal, are as follows –
1. In the light of the decisions in Smurthwaite & Ors. v. Hanay & Ors. (1894) All E.R. 865, Carter & Ors. v. Rigby & Co. (1986) 2 Q.B. 113, Amachree & Ors. v. Newington (1952) 14 WACA 97, and Ayankoya v. Olukoya (1996) 4 NWLR (Pt. 440) 1, wherein the identical provisions of the old English Order 16(1) were construed to the effect that the rule did not permit joinder of causes of action, Order 13 rule 1 of the Lagos State High Court (Civil Procedure) Rules, ought to be similarly construed to the same effect.
2. The Respondents’ joinder of several causes of action is, therefore, prima facie incompetent.
3. Although rule 4 of Order 14 permits the joinder of separate causes of action by a multitude of Claimants, such Claimants must, first of all, have a valid joint claim in which they all have a common interest before they can join separate causes of action, in which they all may not have common interest.
4. The causes of action disclosed by the Respondents in their pleadings are individual, particular, distinct and disconnected, and to which extent cannot be said to constitute a joint claim.
5. Therefore the option of joining separate causes of action under rule 4 of Order 14 does not avail the Respondents as a valid joint claim in which the Respondents have common interest is the foundation for joinder of any separate and disconnected claims.
6. The proviso to rule 1 of Order 14 ought not to be used in qualifying or limiting provisions of rule 4, which latter rule applies to a multitude of Claimants while the former rule applies to a sole Claimant.
7. [It] was, therefore not under the burden of showing any likely inconvenience or prejudice to it by the joinder of the Respondents’ causes of action.
8. [Its] Preliminary Objection ought to have been upheld.

It argued that having regard to the totality of their pleadings, it can hardly be disputed that each Respondent has disclosed her own cause of action, and each Respondent’s claims have been joined with those of the others; that without questions as to the merit or otherwise of the claims as joined, they are not permitted to jointly pursue their perceived remedies against it in a single action; and that it is clear from the endorsements on the Writ of Summons, and some of the averments in their Statement of claim that –
i. There were 3 separate incidents of alleged kerosene explosion each of which happened separately to each Respondent;
ii. The incidents took place at different locations having regard to the fact that –
(a) The 1st Respondent resides at No. 9, Ilasamaja Street Alafia, Mushin;
(b) The 2nd Respondent resides at No. 25, Onaigbo Street, Ilasamaja; and
(c) The 3rd respondent resides at No. 80, Itire Road Mushin Lagos;
iii. The alleged incidents of kerosene explosion occurred on different dates having regard to the fact that:-
(a) The event which allegedly caused the 1st Respondent’s injuries is averred to have occurred on 11/10/01;
(b) The event which allegedly caused the 2nd Respondent’s injuries is averred to have occurred on 17/10/01:
(c) The event which allegedly caused the 3 Respondent’s injuries is alleged to have occurred on 15/11/01 (although inconsistently stated in paragraph 18(c) to be 17/10/01 but which, from the entirety of the Writ of Summons and Statement of Claim, is deducible as having occurred on 15/11/01);
iv. The items purportedly lost in the fire from the alleged kerosene explosion were not jointly owned by all 3 Claimants, which items were neither identical nor uniform in value;
v. The nature and extent of the injury allegedly suffered by each Respondent is distinct and different from that of the other Respondents having regard to the fact that –
(a) The 1st Respondent allegedly suffered “45% burns on her hands, chest and face” (i.e. at paragraph 18(b) of the Statement of Claim);
(b) The 2nd Respondent allegedly suffered “burn injuries on her face, neck, truck (sic) and upper limbs” (i.e. at paragraph 18(d) of the statement of claim);
(c) The 3rd respondent allegedly suffered 30% burns on her thighs, hands, breast and stomach (i.e. at paragraph 18(e) of the Statement of Claim).
vi. The alleged quantum of monetary loss to each Respondent is different in that:-
(a) The sum total of the 1st Respondent’s alleged damages is N5,692,000.00;
(b) The sum total of the 2nd Respondent’s alleged damages is N5,722,500.00;
(c) The sum total of the 3rd Respondent’s alleged damages is N10,660,700.00.

It submitted that the 3 Respondents as separate individuals have jointly filed an action for damages in respect of 3 separate incidents that occurred at 3 different locations, on 3 different dates, and which separate events allegedly caused physical injury to each Respondent in a manner different in form and extent from the injury caused to each of the other Respondents, and with loss of separately owned items of personal property of disparate monetary values, and for which injuries and losses, disparate monetary sums are jointly claimed. It referred us to Order 13 rule 1, of the said Rules, which it submitted is in pari materia with Order 16(1) the old English Supreme Court Rules, which were in operation prior to October 26th, 1896.

It cited Amachree & Ors. v. Newington (supra), wherein WACA relied on the decisions in Smurthwaite’s Case (supra) and Carter’s Case (supra), and submitted that while the facts in Smurthwaite’s case disclose an action founded on contract, the English Court of Appeal in Carter’s case, upheld the construction of the rule as being applicable to both contract and tort; that the Respondent’s action is not such as is contemplated nor permissible under Order 13 rule 1 of the said Rules; that contrary to the comment made by the lower Court regarding the old English rule, what the drafters of the rule failed to avert their minds to, ought not to influence the construction of the rule as the Court’s duty lies in interpreting the law in accordance with the settled rules of statutory interpretation, citing Ogbonna v. Attorney-General of Imo State (1992) 1 NWLR (Pt. 220) 647; that regardless of the departure in England from the position under the English Order 16(1), Order 13 rule 1 still remains the operative rule in Lagos State, citing Olafisoye v. FRN (2004) 4 NWLR (Pt. 864) 580; that if the lower Court recognized that the old English rule was similar to Order 13 rule 1, and having relied on the decision in Ayankoya v. Olukoya (supra) in concluding that the old English rule “did not permit the joinder of parties and joinder of several causes of action in the same action”, it is difficult to reconcile its conclusion with the dismissal of its preliminary objection; that the elements that informed any amendments to the English rule cannot be imported into Order 13 rule 1; that if it is established that prior to the amendment of the old English rule, joinder of causes of action by several Plaintiffs was not permitted, and that Order 13, rule 1 is in pari materia with the old English rule, it follows that the Respondents’ action should not be allowed at least as far as provisions of Order 13 rule 1 are concerned; and that if drafters of the rule have inserted provisions similar to the old English rule, the decisions in those cases should have been followed and applied in relation to Order 13 rule 1.

Under its Issue 2, it referred us to the definition of causes of action adopted in Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669 and Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598, and submitted that the Respondents’ joint action does not comprise a single cause of action but rather comprises joint causes of action as made up by each of Respondent’s cause of action. It conceded that it would be wrong and futile to contend that a joinder of causes of action is not at all permissible under the said Rules in its totality, but argued that the crux of its Objection is simply that the joinder of causes of action by separate persons as co-claimants in a single suit must satisfy certain conditions, which conditions the Respondents have not and, indeed, cannot fulfill, and on account of which the said joint action is incompetent. It drew our attention to Order 14 rule 4, which the lower Court relied upon, and submitted that although the same rule formed part of the 1965 and 1972 High Court (Civil Procedure) Rules, the rule does not appear to have enjoyed the benefit of judicial construction, and it urged us to undertake the construction of the said Order 14 rule 4, citing Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, wherein Iguh, JSC, observed as follows –
“- – It is right to bear in mind the well-established principle of law that the safer and more correct course of dealing with a question of construction is to take the words of the document or statute themselves and arrive, if possible, at their meaning without, in the first instance, reference to cases”.

It also cited UTC (Nig.) Ltd v. Pamotei (1989) 2 NWLR (Pt. 103) 244, wherein Nnaemeka-Agu, JSC, held that “it is now a settled principle of construction of statutes that the legislator does not use any words in vain” and submitted that the word “separately” could not have been used in vain in Order 14 rule 4, and must be allowed to serve its rightful purpose; that the correct meaning of the said Order 14 rule 1 of the said Rules is that if all Claimants have a joint claim against the same Defendant, then individual, distinct, particular or disconnected claims by all or any of the Claimants may be joined with the Claimants’ joint claim against the same defendant.

Furthermore, if the Claimants do not have a joint claim against the same Defendant, then individual, distinct, particular or disconnected claims by all or any of the Claimants cannot howsoever be joined. Consequently without foundation, in the form of a joint claim, nothing exists upon which to build individual, distinct, particular or disconnected claims of all of them; that the well-worn dictum of Lord Denning that “You cannot put something on nothing and expect it to stay there. It will collapse” in Macfoy v. UAC Ltd. (1969) 3 ALL ER 1169, becomes tailor-made for the Respondent’s Suit, which ought to collapse on account of being devoid of foundation for the joinder of disconnected causes of action; that the Legislator could not have used “claims by Claimants jointly” and “separately” if no distinction was to be drawn between them, so, “claims by Claimants jointly” must be distinct from “claims by them (i.e. Claimants) or any them separately”; and that –
– If it is agreed that the Respondents have 3 separate causes of action, then their claims cannot properly be described as a joint claim;
– If it is further agreed that the Respondents have joined 3 separate causes of action in a single action against the same Defendant, it must follow that there is no joint claim, properly so called, before the lower Court;
– And if there is no joint claim before the lower Court; the pre-condition for the joinder of 3 separate causes of action does not exist in the Respondents’ Suit.

It argued that the Respondents filed individual, distinct, particular or disconnected causes of action without any disclosure as to any cause of action in which they all have a common interest; that to permit joinder of separate causes of action where no joint claim is apparent amounts to disregarding Order 13 rule 1 and undermining Order 14 Rule 1, which permits the joinder of separate causes of action only with a joint claim, citing Ukatta v. Ndinaeze (1997) 4 NWLR (Pt. 499) 251; and that the lower Court erred when it said – “Since the Claimants in this case have exercised their option under Order 14 Rule 4 to have their claims joined together in this action, their joint action is not incompetent”, because the foundation for exercising that option is absent in the suit as currently constituted.

Under Issue 3, it submitted that the lower Court misquoted the proviso to Order 14 rule 1, which cannot be used in limiting the ambit of rule 4, citing NDIC v. Okem Enterprises Ltd. (2004) 10 NWLR (Pt. 880) 107; that the basis upon which the proviso was applied in qualifying rule 4 is impossible to comprehend because while both rules 1 and 4 permit joinder of causes of action, rule 1 contemplates the joinder of causes of action by a sole Claimant while rule 4 contemplates the joinder of causes of action by several Claimants, thus, if the proviso qualifies the right of a sole Claimant to unite several causes of action, the same proviso ought not to be imported into rule 4, which provides to the effect that a multitude of Claimants, who have a valid joint claim, enjoy the unfettered option of uniting their separate causes of action, only on the condition that they have a valid joint claim; that once several claimants have a valid joint claim and elect to join separate claims with the joint claim, the inconvenience or prejudice to the Defendant is irrelevant as rule 4 makes no provisions for ameliorating any perceived inconvenience or prejudice, and it would have been futile for it to have alluded to any inconvenience or prejudice it was likely to suffer; that by holding it out as having omitted to show prejudice or inconvenience it would have suffered, and rejecting its contention that the Respondents’ joinder of causes of action ought not to be allowed, it appears to have been sanctioned for not doing what it ought not to have done; and that the implication of importing an alien qualification into rule 4 is that the Claimants are suddenly burdened with an additional/alien qualification to their options; and that it is apparent that the criteria, which it was under no obligation to fulfill, have been applied as basis for rejecting the contention that joinder of several causes of action by the Respondents, who did not have a valid joint claim, ought not to be allowed.

The Respondents, on their own part, contend that the questions to be answered for the proper determination of this Appeal are as follows –
a) Do our rules of Court and case law authorities permit the joinder of parties and joinder of causes of action to determine a common question of fact or law and to avoid multiplicity of suits?
b) Will the Appellant suffer any prejudice or injustice for the joinder of parties and causes of action?
c) What is the purpose and purport of Order 14 Rules 1 and 4 of the High Court of Rules 2004 on joinder of parties and causes of action?

In answering the questions, it referred to the decision of the Supreme Court in Olufeagba v. Abdur-Raheem (2010) All FWLR (Pt. 512) 1033, thus –
“The Rules of the Court permit joinder of parties among persons claiming jointly, severally or in the alternative as Plaintiffs or Defendants so as to avoid multiplicity of actions, particularly where they have common interest and common questions of law and common demand. Judgment of Court shall be given to one or more of the Parties as may be found to be entitled to relief in the action. Such action shall continue upon the death of any of the parties as long as there are survivors appearing in the matter before the Court”.

They submitted that their claim as contained in their Statement of Claim was that at various times in 2001, each of them purchased and used the killer kerosene imported and put up for sale by the Appellant, which is what the Appellant wants the lower Court to declare incompetent because of alleged misjoinder of causes of action and misjoinder of the Claimants; that the English provision is not applicable in this case, and all the English Authorities cited is of mere persuasive authority as it is settled that English rules and case law are only applicable where the High Court Rules did not provide for it or where there is no rule, or case law on the subject matter; that Order 13 Rule 1 of the said High Court Rules, which authorizes and empowers persons claiming jointly, several or in the alternative to be joint Claimants, is by far wider than Order 16 rule 1 of the English Rules; and that the common question of fact and law, which arises in this case, is the sale of the killer kerosene, and the liability under it by the Appellant.

They further submitted that the only remedy under the rule available to the Appellant is that if it feels that their claim as presently constituted, would embarrass them or delay trial, it has a right to bring an application for a separate trial because by virtue of Order 13 rule 16(1), no cause or matter can be defeated by reason of the misjoinder or non-joinder of parties and the Court is empowered in every causes or matter to deal with matters in controversy regarding the rights and interests of the parties actually before it, citing Ayankoya v. Olukoya (supra); that permitting joinder of parties or joinder of causes of action is designed and intended to prevent multiplicity of actions, prevent delay, and save time of the Court, lawyers and save parties unnecessary costs; that a Defendant, who intends to raise the issue of misjoinder of parties or misjoinder of causes of action, has to do so timeously; that the situation will not be allowed to degenerate into using the defect as a technical point upon which an opponent’s claim will be defeated where the Claimants has complied with the new Rules for purposes of having their matter set down for hearing, citing Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130; that the Appellant did not take into account Order 13 Rule 16, Order 14 Rules 1 and 4 of the said High Court Rules, and the trite law that cases should not be decided on the basis of technicalities, which is predicated on the trite principles that in the interest of justice, cases should be decided on its merit, citing Nipol Ltd. v. Bioku Investment & Property Co. Ltd. (1992) 3 NWLR (Pt. 232) 727 SC; that the ONLY question of facts, the lower Court will determine is the liability of the Appellant for putting out for sale the killer Kerosine, which caused devastating havoc to not only the Respondents in this case but to the generality of Nigerians; and that its liability is not, cannot and is not capable of being repudiated in view of the obvious admission by the Appellant, who has paid compensation to various other persons. We were urged to resolve this Issue in their favour.

To resolve this issue, we need to understand the meaning of some of the terms bandied about by the Appellant, who centred its arguments on a differentiation between joint claim, causes of action and common interest. Black’s Law Dictionary, 8th Ed., defines the word “claim” as – “the aggregate of operative facts giving rise to a right enforceable by a Court”, which is also termed “claim for relief”; “the assertion of an existing right”; and also –
“A demand for money, property or a legal remedy to which one asserts a right, especially, the part of a complaint in a civil action specifying what relief the Plaintiff asks for”.

In this case, the Respondents hinged the joint claim on one basic fact – being victims of explosions that occurred when using “killer kerosene”, which the Appellant “knew or ought to have known to be adulterated and unfit for human usage” – see paragraph 17 of their Joint Statement of Claim. They suffered varying degrees of “injuries, pains, mental agony”, and also incurred some “medical bills” for their treatments after the explosions – see paragraph 18 of their Statement of Claim. The said Order 14 rule 4 says –
“Claims by Claimants jointly may be joined with claims by them or any of them separately against the same Defendant”.

I must point out that it would appear that this Order 14 rule 4 is innovative, as it has no equivalent in any of the Rules of Court discussed in the cases of Ayankoya v. Olukoya (1996) 4 NWLR (Pt. 440) 1, and Ayinde v. Akanji (1988) 1 NSCC (Vol. 19) 43, which dealt with the issue of whether the mere fact of having a common landlord, will enable a group of tenants, who have individual holdings in land, to sue or be sued in a representative capacity, and wherein the Supreme Court relied on Amachree v. Newington (supra), and the English cases of Carter v. Rigby & Co. (1896) Q.B. 113 and Markt & Co. Ltd. v. Knight Steamship Co. Ltd. (1910) 2 KB 1021, on different rules. In the case of Amachree & Ors v. Newington (1952 case) WACA considered Order 4 rule 2 of the Supreme Court (Civil Procedure) Rules, which says-
“Where a person has jointly with other persons a ground for instituting a suit, all those other persons ought ordinarily to be made parties to the suit”.
In that case, the nine Appellants sued the Respondent claiming a single amount for damages for assault and false imprisonment, and WACA held –
“In the case before us, the cause of action of each plaintiff may be said to arise out of similar transactions, but they are distinct transactions in the sense that there is no joint tort. Order 4 rule 2 permits joinder of plaintiffs in an action but not joinder of causes of action. The alleged damage of each plaintiff is not a common ground of action. An amendment of Order 4 rule 2 may have the effect of preventing some multiplicity of suits but in the present case the rule, as it exists, has not in my opinion worked an injustice. The damages claimed could only be personal to each Plaintiff alone but no special damage was alleged or proved”.

In the English case of Carter v. Rigby & Co., decided in 1896, a number of miners got drowned through the flooding of a mine. The representatives of the dead miners joined together and brought an action against the owners, claiming that the mine had been flooded through their negligence, however, it was held that the Plaintiffs could not bring one action. In Markt & Co. Ltd. Knight Steamship Co. Ltd., decided in 1910, Plaintiffs shipped goods in the Defendant’s ship, which was sunk by a Russian Cruiser before it reached its destination – Japan. In the Writ of Summons, the Plaintiffs were described as suing on behalf of themselves and other owners of cargo laden on board the ship. Endorsed on it was a claim for damages for breach of contract and duty in and about carriage of goods by sea. It was held that the Plaintiffs and those whom they purported to represent were not “persons having the same interest in one cause or matter”, and that shippers of goods in a general ship could not have “the same interest in one cause or matter”.

I want to believe we have come a long way with our Rules of Court since the above cases were decided in 1952, 1896, and 1910 respectively. Order 14 rule 4 of the Lagos State High Court (Civil Procedure) Rules 2004, allows claims by the Respondents jointly to be joined with claims by them or any of them separately against the same Appellant, and that is what it is. All the arguments/submissions made by the Appellant that seeks to draw in old English Cases from 1869 etc., and old Rules of Court that are not the same with this specific Rule being considered, is of no consequence here.

The lower Court is right to hold as it did that the Respondents are authorised by Order 14 rule 4 of the Rules of its Court to join as claimants in the Suit against the Appellant, relating to the said kerosene explosions. Besides, there is nothing in the said Rule to the effect that common interest, involving common questions of law and common demand in damages are required criteria for a joint claim by several Claimants against a Defendant.

At any rate, it is settled that general damages for personal injuries or for any injury need not be specified in the claim – see Akinsowon v. Akinjise & Anor. (1974) 4 UILR (Pt. IV) 473. Thus, the difference in the quantum of damages they each claim, would not, at the end of the day, count against the joint action brought at the lower Court, because any award of damages will be at large and/or at the discretion of the trial Court, based on the evidence. Rules of Court are designed to be lubricants of the machinery of justice –
See Nwora & Ors. v. Nwabueze & Ors. (2011) LPELR-SC.418/2010 and they are also seen as “beacon lights” illuminating the path leading to justice – see D.Y.S. Trocca Valsesia & Co. v. Osaghae (2008) All FWLR (Pt. 413) 1313, and U.T.C. (Nig) Ltd. v. Pamotei (supra), where the Supreme Court clearly said-
“Rules of procedure are made for the convenience and orderly hearing of cases in court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the case, to my mind, will be making the Courts slavish to the rules. This certainly is not the raison d’etre of rules of Court.”

In the final analysis, the lower court properly invoked Order 14 rule 4 of its Rules to overrule the Appellant’s objection, and assuming without agreeing that there was really a misjoinder, this would not be fatal to the said action; bearing in mind Order 13 rule 16(1) of the same Rules and the decision in Ayankoya v. Olukoya (supra), to the effect that even if, there is misjoinder and the Defendant feels prejudiced, the solution is to file an application for a separate trial of the action, and not to let the misjoinder defeat the action.

This Appeal, therefore, lacks merit. It fails and it is hereby dismissed. The suit is remitted to the lower court for continuation. No order on costs.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother HON. JUSTICE AMINA A. AUGIE, JCA.

I agree with the reasoning and conclusion reached therein and have nothing extra to add.

I too join my learned brother in holding that the appeal lacks merits. It fails and it is also hereby dismissed by me. The Suit is remitted to the lower Court for continuation.

No order on costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of a preview of the incisive judgment prepared by my learned brother, Amina Adamu Augie, J.C.A. (CON), with which I agree and adopt as my judgment with nothing extra to add.

Appearances

O. O. Atoloye, Esq.For Appellant

AND

V. I. P. Nwana, Esq.For Respondent