PROF. AKIN MABOGUNJE & ORS v. MR. ADEMOLA ADEWUMI ODUTOLA & ORS
In The Court of Appeal of Nigeria
On Thursday, the 11th day of July, 2002
SUNDAY AKINOLA AKINTAN Justice of The Court of Appeal of Nigeria
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
- PROF. AKIN MABOGUNJE
2. CHIEF AMUSA BEYIOKU ADEBOWALE
3. PROF. (MRS.) OYINADE ODUTOLA-OLURIN Appellant(s)
- MR. ADEMOLA ADEWUMI ODUTOLA
2. MADAM OLAYIDE ODUTOLA
3. CHIEF (MRS.) ADEBISOLA OKUPE
4. CHIEF (MRS.) FOLORUNSHO ADEUJA
5. DR. ABISOYE ODUTOLA
6. MR. ADEBOYE ODUTOLA
7. MR.OLUFEMI ODUTOLA
8. MR. ADEREMI ODUTOLA
9. MR. ADEGBOLA ODUTOLA
10. MR. OLADELE ODUTOLA
11. MISS ADETUTU ODUTOLA
12. MISS ADERONKE ODUTOLA
13. MR. ADEGBENGA ADEDAPO ODUTOLA
IN RE: CHIEF BABATUNDE OLUSHOLA BENSON (SAN)
ADEKEYE, J.C.A. (Delivering the Leading Ruling): By a motion on notice, dated the 2nd day of October, 2001 and filed on the 3rd day of October, 2001, Chief Babatunde Olushola Benson SAN as an interested party/applicant prayed for the following order:
“An order of this Honourable Court, granting leave to the applicant as a party interested to be joined as co-respondent in the appeal before this Honourable Court, against the judgment and order of Honourable Justice I. B. Delano, delivered on 24/5/2000 in suit No. AB/130/96 at the Abeokuta High Court, Ogun State and for such further and other orders as this Honourable Court may deem fit to make in the circumstances.”
When moving the application on 6/6/2002, the learned Counsel for the interested party/applicant (hereinafter called the applicant) O. F. Adeniyi (Mrs) told this court that the motion on notice was brought pursuant to Section 243 of the Constitution of the Federal Republic of Nigeria, 1999; Order 3 rules 3(1) 4 and Order 1 rule 20(1) of the Court of Appeal Rules. She pointed out that the applicant as an interested party, is seeking to be joined as a co-respondent in the present appeal before this court. She also stated that the motion is supported by a 28 paragraph affidavit with some exhibits. She relies on all the paragraphs of the affidavit particularly paragraphs 8 – 17 thereof. She also cited and relied on the case of Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557 where a ‘party interested’ was defined. She then submitted that the applicant has satisfied the test for a sufficient interest of a party seeking to be joined in a proceeding as prescribed in the case of Albion Const. Co. Ltd. v. R.O.O. Investment & Properties Ltd & Anor. (1992) 1 NWLR (Pt. 219) 583 at 587. She argued that the applicant’s interest in the matter is on the counsel’s fees which by the ruling of the trial court dated 24/5/2000 (exhibit PB attached to the affidavit in support of the motion) was ordered to be paid to him, out of the estate of the deceased.
Thus, it is pointed out that the applicant will be affected by the outcome of the present appeal, which is against the said ruling -See grounds 1 and 2 of the grounds of appeal attached to the motion paper and marked exhibit PC. The learned Counsel for the applicant finally urged this court to grant the application as prayed in the motion paper.
The learned Counsel for the appellants/respondents. Chief B. Aiku (SAN) opposed the application. He has filed a counter-affidavit on 10/4/2001. He referred to the earlier ruling of this court delivered on 30/4/2002 in which the applicants client (deceased) was substituted by his daughter, Miss Adejumoke Odutola, as the 13th respondent in the appeal, see the ruling of this court in the earlier motion in CA/I/M./150/99. The learned SAN submitted that the interest of the applicant as a counsel to the substituted 13th respondent will be sufficiently protected by her as his new client. It is pointed out that apart from the applicant, the order on payment of counsel’s fees also affected Ayanlaja SAN who represented the 1st – 12th respondents in the case but has not applied to be joined in this appeal.
The applicant’s counsel relied on the paragraphs of the supporting affidavit and particularly paragraphs 6-17. Of particular interest are paragraphs 12-16 – which shall be reproduced below:
That before judgment was delivered on 24/5/2000, the applicant submitted to the administrator his final bill totaling N11,500.000.00 (Eleven Million Five Hundred Thousand Naira only) under cover of letter of 18/5/2000 and a copy sent to the court. The said bill and covering letter are attached and marked as exhibit PA.
That upon delivery of judgment on 24/5/2000, the applicant prayed the court to approve the bill for professional service rendered in the suit whereof the court approved same.
That attached and marked as exhibit PB is the order of court approving that counsel fee be paid.
That inspite of the court’s approval of counsel fee, the Administrator has been unable to pay the fee due to the frustrating act of the 1st, 2nd and 4th defendants/respondents.
That the appellants have appealed against the judgment of the court and the order approving payment of counsel fee copy of notice of appeal, dated 26th May, 2001, attached as Exhibit PC. Exhibit PB the order of the High Court of 24/5/2000 approving that counsel fee be paid reads:
“In view of the contention which necessitated my ruling on the payment of fees from the estate, it is my view that the fees of counsel shall be made an order of court. It is noted that fees of counsel cannot be bargained. It is hereby, ordered as follows:
(i) The sum of N20,000,000 fees of the plaintiffs counsel shall be paid from estate of the deceased; and
(ii) The sum of N11,500,000 fees of the counsel for the 3rd defendant shall also be paid from the estate of the deceased.
Paragraph 23 of the affidavit in support reads:
“That some of the grounds of appeal before this court, affect his interest in the judgment and orders of the High Court granting payment of his professional fees and that, it is only by being joined as a party to the appeal, that his interest in the subject matter of the appeal may be protected.”
In the original notice of appeal filed against the judgment delivered on the 24th of May, 2000, the first ground of appeal filed also reads:
“The learned trial Judge erred in law, when he made an order that the plaintiff’s counsel and the 3rd defendant’s counsel be paid fees of N20 Million and N11.5 Million respectively, out of the estate of Chief T. A. Odutola (deceased), when the making of such orders was contrary to the provision of the rules of court governing probate matters and the provisions of the Legal Practitioners Act 1975, as amended in relation to the Bill of Costs of Legal Practitioners.”
The court is now left to determine whether from the foregoing, the applicant Chief Babatunde Olushola Benson – counsel to the 13th respondent – now Miss Adejumo Odutola, substituted for Adegbenga Adedapo Odutola deceased, by order of this court made on 30/4/2002, can be an “interested party” joined to defend the appeal pending before this court as co-respondent. Affidavit evidence in support of the application disclosed that on 26/2/98, the High Court Ogun State, in suit No. AB/130/96, granted the summons that counsel’s fee be paid out of the estate of late Chief T. A. Odutola -which summons was supported by the late Adegbenga Adedapo Odutola, the deceased client of the applicant – vide paragraph 5 of the affidavit in support of the application as party interested for joinder as co-respondent. The order made by the court in its judgment in that suit also gave a judicial confirmation to the payment of counsel fees.
Under what circumstances can the applicant qualify to be joined as a co-respondent -having scaled the hurdle of an interested party to prosecute the appeal lodged against the judgment delivered on 24/5/2000? – After all, throughout the proceedings and judgment of the lower court – he only appeared as counsel to the 13th respondent and not as a party before the trial court. In other words, the applicant was not a party to the suit in the lower court nor did he testify as a witness. The applicant brought the application pursuant to section 243 of the Constitution which provides that:
“Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be:
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter.”
The interest being referred to here, is legal interest and not just sentimental interest. It is however, trite that to be able to approach the court, one must have legal interest or the party must have locus standi. Locus standi has been defined in a plethora of cases by our superior courts – the term shall be related to or denotes legal capacity to institute an action or proceedings in a court of law – or right of appearance in a court of justice or before a legislative body on a given question. A right to be heard.
Blackburn v. Attorney General (1971) 1 NCLR 1037
Senator Adesanya v. President of the Republic of Nigeria & Anor. (1981) 2 NCLR 358; (1981) 5 SC 113
Chief Gani Fawehinmi v. Col. Halilu Akilu, Col. A. K. Ogun in Re
Oduneye Director of Public Prosecutions (1987) 4 NWLR (Pt. 67) 797
Chief De. Irene Thomas & Ors. v. Most Reverend Archbishop T. O. Olufosoye (1986) 1 NWLR (Pt. 18) 669
Badejo v. Federal Ministry of Education & Ors. (1990) 4 NWLR (Pt. 143) 254
It is indisputable that a party must have sufficient legal interest in order to competently seek redress in a court of law. In the cases of Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557, particularly, Albion Construction Ltd v. Rao Investment & Properties Co. Ltd. & 1 Or, the tests of sufficient interest to determine a party interested in a matter are inter alia:
(a) Whether the person could have been joined as a party to the suit.
(b) Whether the party seeking for the redress or remedy will suffer some fundamental injury or hardship arising directly from the litigation.
In other words, in considering whether or not, an applicant comes within the expression any other person having sufficient interest in the matter as contained in section 243 of the 1999 Constitution, the acid test which is usually applied is whether such person could have been joined as a party to the suit Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806. Such person includes, a person affected or likely to be affected or aggrieved or likely to be aggrieved.
A person having an interest in the matter means, a person who has suffered a legal grievance, a man against whom a decision has been made which has wrongfully deprived him of something or wrongfully refused him something affecting his title. The interest must be a genuine and legally recognisable interest in respect of a decision which prejudicially affects such interest. Harry Akande v. General Electric & Ors. (1979) 3-4 SC page 115 at 125.
The question whether or not a claimant has sufficient justifiable interest or sufferance or injury or damage depends on the facts and circumstance of each case. In the instant case, the interested party seeking to be joined as co-respondent for the purpose of the appeal pending before this court indicated the reason culminating in his being regarded as a person having interest – that is sufficient interest as defined in the legal authorities and the Constitution of the Federal Republic of Nigeria 1999 – gave this as his professional fee a sum of N11,500,000 which should have been paid from the estate of Chief T. A. Odutola (deceased) and which the appellants before this court, as executors of the will of the late Chief Odutola had done everything to frustrate the payment. The appellants even filed a stay of execution of the judgment. The appellants in their appeal made the payment of his professional fee an issue. The appeal thereby, affects his interest which interest he can protect if joined as a party to the appeal. A letter exhibit PA attached to this application, shows that the professional fee cover legal services rendered by him, since 1996 to 1999, in four legal suits handled by him on behalf of his client. He had only been paid a sum of N4 Million out of the fee. This court had seen and perused the appeal filed touching upon the payment of the professional fee to the applicant. It is the impression that the subject- matter touches upon substantial issues of law on which the applicant has to submit a brief or address the court as party directly interested or affected. I am sure that submitting a well written brief, will assist this court in doing substantial justice in the matter. The only reason which makes it necessary to make a person, a party to an action is that, he should be bound by the result of the action and the question to be settled. There must be a question in the action, which cannot be effectually and completely settled unless he is a party.
Delvin J. as he then was in the case of Amon v. Raphael Tuck & Sons Ltd (1956) 1 Q.B. 357 at 380, Green v. Green (1987) 3 NWLR (Pt. 61) 480. He cannot effectively argue his case without been joined.
After all if not joined – as a co-respondent – he would be obliged to concentrate on filing a well-considered brief on behalf of his client – the 13th respondent. Mr. Adesanya did not oppose the application – and he did not apply to be joined – he must have chosen to standby and let others in the same shoes fight his battle. After which, this chambers would be equally bound by the result of the pronouncement of this court in the same way as if he were a party. The Nigeria Legal System allows this.
For the purpose of joinder the case of Green v. Green (1987) 3 NWLR (Pt. 61) 480 defined parties as proper parties, desirable parties and necessary parties.
The rules of court of the superior courts of record have provisions for joinder of parties. Order 13 Rule 1 of the Ogun State High Court, Civil Procedure Rules, 1988, Order 3 rules 3(1) and 4, Order 1 rule 20(1) of the Court of Appeal Rules 1981, as amended based joinder on common interest of the parties. The rules made adequate provision for joinder of defendants or respondents as the case may be. The court has the power to add, substitute, strike out a defendant at any time before trial, at the trial – even before an appeal is heard. Funduk Engineering Ltd. V. James McArthur & 4 Ors. In Re Colonel Yonanah Antayen Madaki Rtd (1996) 7 NWLR (Pt.459) 153. In the case of Col. Hassan Yakubu Rtd -Gov. of Kogi State & 3 Ors. v. His Royal Highness Alhaji Ahmadu Yakubu [The Ejeh of Ankpa] (1995) 8 NWLR (Pt. 414) 386 at 402, it was held that the test whether under the relevant rule of court dealing with joinder of parties the court has jurisdiction to add as a defendant a person whom the plaintiff did not wish to sue is:
(1) Whether the order which the plaintiff is seeking or asking in the action might directly affect the person seeking or proposed to be added as a party by curtailing the enjoyment of his legal right.
(2) The only reason which might render the presence of a party before the court to be necessary to enable the court to adjudicate completely within the meaning of the rule was that he should be bound by the result of the proceedings.
(3) A party proposing to join or be joined in an existing action, must have a legal interest in order to take advantage of the rule. It is not enough that he has an indirect interest. A person is legally interested if the answer to the question in issue may curtail his rights – LSDPC v. Adold/Stamm Int. (1994) 7 NWLR (Pt. 358) 545; LSDPC & Anor v. Foreign Finance & Ors. (1987) 1 NWLR (Pt. 50) 413; Benson S. Ige & Ors. v. V.B.A. Farinde & Ors. (1994) 7 NWLR (Pt. 354) SC 42, Klifco Ltd. v. Phillipp Helzmann A.G. & Anor (1996) 3 NWLR (Pt. 436) 276.
In this appeal, I believe that the applicant’s right or interest is capable of being affected by the appeal filed against the judgment of the lower court delivered on 24/5/2000. This would constitute his being a person having an interest in the decision of the trial Judge within the ambit of section 243 of the Constitution of the Federal Republic of Nigeria, 1999. It is desirable to join the applicant as co-respondent so as to be bound by the result and pronouncement in the appeal on the issue of his professional fee charged on the estate of Chief T. A. Odutola (deceased). Order granted as prayed -The applicant as party interested is to be joined to prosecute this appeal, as co-respondent. All records and court process are to be amended to reflect the joinder. No order as to costs.
AKINTAN, J.C.A.: I had the advantage of reading the draft of the leading ruling prepared by my Lord, Adekeye, J.CA. I agree with the reasoning and conclusion, expressed therein that there is merit in the application and as such it should be granted as prayed.
The main requirement of the law as provided in section 243 of the Constitution is that an applicant for joinder, as in the instance case, must satisfy the court, that ‘he is a person having an interest in the matter’. To this end, the applicant has shown that one of the grounds of appeal filed in the appeal against the judgment is against the award of fees made to the applicant as counsel’s fee by the lower court.
It follows therefore, that if his present application is refused, the applicant’s right to effectively defend his right to the awards of counsel’s professional fees made to him by the lower court and which is now a matter being challenged on appeal, will be greatly weakened.
I therefore, believe that the applicant has made out a good case to warrant being classified as a person having an interest in the appeal now pending in this court in the matter. In the result, I agree with the view expressed in the leading ruling that the application for joinder should be granted. I accordingly, also grant the prayer and abide with the order on costs made in the leading ruling.
ADAMU, J.C.A.: I was privileged to have read, before now, the leading ruling of my learned brother, Adekeye, J.C.A., in this application for joinder of the interested party/applicant as a respondent in the appeal, now pending before this court. My Lord has succinctly and adequately, considered the competing affidavit facts in support or against the application for joinder of the applicant as a party in this appeal. I adopt the consideration and the reasons given, in the lead ruling that the application for joinder should be granted.
Under both the provision of section 243 of the Constitution of the Federal Republic of Nigeria, 1999 and case law authorities that are germane to the application, the applicant is qualified, as an interested person or a desirable party on his legal fees, which has been pronounced upon by the trial court, to be joined as a respondent in the appeal. The fact that he is a legal practitioner or that the other counsel (also a SAN) who is also entitled to his counsel fees under the judgment of the trial court has not applied to be joined are immaterial and are not fatal or should not affect the applicant, who as a person entitled to be joined decided to apply to be so joined in the appeal (under the appropriate rules and the constitutional provision supra). If the other counsel decides not to press on his right, but fold his arm and watch others fighting for him, that is his own option or choice and at the end of the day he will be bound by the judgment of the court under the equitable rule(s) of laches and acquiscence. It is trite that in Nigeria, unlike the position in the United Kingdom a barrister or legal practitioner as the applicant in the present case is, can, or has a right to sue for his professional fees – see The Legal Practitioners Act 1975 (Cap. 207) Laws of the Federation of Nigeria, 1990 (Section 9(2) thereof); Aburime v. Nigerian Ports Authority (1978) 4 SC 111 at 134; Olukoya v. Odulaja & Anor. 1LRN 335; Chuka Okoli & Associates v. Crusader Insurance Co. (1994) 2 NWLR (Pt. 329) 635; and IBWA v. Imano Nig. Ltd. (1988) 3 NWLR (Pt. 85) 633 at 656.
For further definition of an interested or a desirable party by the Supreme Court – See Green v. Green (1987) 3 NWLR (Pt. 61) 480; and Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264.
For my above consideration and the fuller consideration and reasons given in the lead ruling, I also hereby, grant the application of the interested party/applicant and abide by the consequential order made in the said lead ruling, including the order on costs.
- Femi Adeniyi (Mrs.)For Appellant
Chief B. Aiku S.A.N. (with him, P. Agbejule, L. O. Ebeloku (Miss)
Bambo Adesanya, Esq.For Respondent