ZABADNE v. SHINCO (NIG) LTD & ANOR
(2021)LCN/15888(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Wednesday, June 30, 2021
CA/J/151/2020
Before Our Lordships:
Adzira Gana Mshelia Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
AHMAD ZABADNE APPELANT(S)
And
(1) SHINCO NIG. LTD. (2) ACCESS BANK NIG. RESPONDENT(S)
RATIO
DEFINITION OF AN “AMICUS CURIAE”
My learned brother Adumein JCA in the case of DR. (REV.) OLOPADE AGORO V OBA ADEKUNLE AROMOLARAN AND ANOR (2011) LPELR – 8906 (CA) has this to say on who is an amicus cariae. Hear him:
“An Amicus Curiae is the latin phrase for a “friend of the Court” and he is “a person who is not a party to a lawsuit but petitions the Court or is required by the Court to file a brief in the action because that person has a strong interest in the subject matter” BLACK’S LAW DICTIONARY, EIGHT EDITION, page 93. In practice, a learned counsel does not need to have “strong interest”, or any interest at all, before he can be invited to briefly address the Court as amicus curiae.”
See also the case of JUSTICE F.O.M. ATAKE V CHIEF NELSON ASIGBORO AFEJUKU (1994) LPELR-585 (SC). Ogundare JSC of blessed memory said thus:
“Amicus curiae has been defined in Osborr’s concise Law Dictionary 7th Edition at page 25 as: A friend of the Court, one who calls the attention of Court to some point of law or fact which would appear to have been overlooked; usually a member of the Bar. On occasion, the law officer are requested or permitted to argue a case which they are not instructed to appear. And in Grice v The Queen (1957) II DLR (2nd) 699, 702 Ferguson, J define the expression thus “Amicus Curiae is defined as a bystander, usually a lawyer who interposes and volunteers information upon same matter of law in regard to which the judge is doubtful or mistaken in a matter of law, may inform the Court… A similar definition appears in Earl Jowtt’s Dictionary of English Law where it is stated: “Amicus Curiae, a friend of the Court, that is to say, a person whether a member of the bar not engaged in the case or any other bystander, who calls attention of the Court to some decision, whether reported or unreported or some point of law which would appear to have been overlooked……” PER ONIYANGI, J.C.A.
THE POSITON OF LAW ON THE NECESSARY PARTY TO A SUIT
It is trite that once the question in issue can be settled without the presence of the Applicant then the application of the Applicant seeking to be joined is dispensable. To clear this question whether or not the Appellant is a necessary party, recourse has to be made to the subject matter of the suit. See GENERAL ELECTRIC CO. V AKANDE (2017) ALL FWLR (Pt. 893) 13010 at 1323, FBN PLC V OZOKWERE (2014) 3 NWLR (Pt. 1395) 439 at 460. In the case of FEBSON FITNESS CENTRE V CAPPA LTD (2015) 6 NWLR (Pt. 1455) 265 at 281, the apex Court said thus:
“A necessary party to a suit is a party who is not only interested in the subject matter of the proceeding but also a party whose absence in the proceeding could not be fairly dealt with.” PER ONIYANGI, J.C.A.
WHETHER OR NOT EXERCISE OF DISCRETION MUST BE EXERCISED JUDICIALLY AND JUDICIOUSLY
Therefore, if exercise of discretion in an application of this nature has to be exercised judicially and judiciously and based on sufficient material. See the case of IDEOZU V OCHOMA (2006) 4 NWLR (Pt. 970) pg. 364. The exercise of such discretion must be honest and in the spirit of the statute otherwise the act done will not fall within the statute. See OPUTA JSC as he then was and of blessed memory in the case of THE UNIVERISTY OF LAGOS AND ORS V. C.I.O. OLANIYAN AND ORS (1985) 1 SC 295 at Pp. 344-345 and 345-346, ANPP V R.E.C. AKWA IBOM STATE (2008) 8 NWLR (Pt. 1090) 453 at 513. In the circumstance of the fact of this case, the learned trial Judge cannot be faulted in refusing to exercise the Court’s discretion in favour of the Applicant (Appellant). I am also not unmindful of the finding of the trial Court on issue of the power of attorney donated to the counsel to the Applicant. The general rule governing the fiduciary relationship of a legal practitioner and his client is that no disclosure of any communication made to the legal practitioner in the cause and for the purpose of his employment as a legal practitioner by or on behalf of his client is allowed. This kind of communication is the one regarded as privileged communication. See the case of DAWAKI GEN. INT. LTD V AMAFCO ENT LTD. (1999) 3 NWLR (Pt. 594) 224. PER ONIYANGI, J.C.A.
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): The Appellant AHMAD ZABADNE, by way of a Motion on Notice dated 2nd January, 2019 and filed on 3rd January, 2019 approached the High Court of Justice Plateau State sitting in Jos and sought to be joined as a Defendant in suit no. PLD/J/619/2018 by SHINCO NIGERIA LIMITED as Plaintiff against DIAMOND BANK PLC as Defendant. Vides the said Motion on Notice, the Appellant sought for the following reliefs:
(1) AN ORDER of this Court joining AHMAD ZIBADNE as a Defendant in this suit.
(2) AN ORDER of this Court directing the service of all processes filed and to be served in this suit to be effected on AHMAD ZIBADNE as the 2nd Defendant for being a necessary, proper and/or desirable party to this suit.
(3) ALTERNATIVELY AND ORDER dismissing and or striking out this suit for being instituted without the requisite capacity, authorization or concurrence of the board of directors of the Plaintiff.
(4) AND for such further order(s) as the Court may deem fit to make in the circumstance of the case. The ground upon which the application is predicated is:
“That AHMAD ZIBADNE is a proper and necessary party to this suit having a joint/vested interest in the subject matter of the suit brought by the Plaintiff and would be bound by the result of the action.”
Issues were joined before the trial Court by the Appellant and the 1st Respondent. In his considered ruling after arguments from respective counsel on 7th day of March, 2019, the learned trial judge adjudged the application as lacking in merit and same was dismissed. See pages 73-80 of the record of appeal.
Miffed by the outcome of his application, the Appellant approached this Court vide his notice of appeal dated and filed on 3rd March, 2020. Therein are four grounds of appeal. He sought for the following reliefs:
(i) An order allowing the appeal and setting aside the ruling of the trial Court.
(ii) An order joining the Appellant as a Defendant in suit No. PLD/J619/2018.
The record of appeal was compiled and transmitted on 3rd July, 2020 and consequent upon which respective counsel filed and exchanged their briefs of argument. Both the Appellant and the 1st Respondent filed their briefs timeously on 7th August, 2020 and 9th September, 2020 respectively. The 2nd Respondent however filed his brief of argument on the 22nd day of January, 2021 but out of time. Vide the order of this Court granted on 25th day of January, 2021, the said brief was deemed as properly filed and served.
The Appellant also filed a reply to the 1st Respondent’s brief of argument on the 18th day of September, 2020. The Appellant submitted the following issues for determination of the appeal. They are:-
APPELLANT’S ISSUES FOR DETERMINATION
(1) Whether the trial Court in its ruling was right to refuse the application of the Appellant based on the fact that the Appellant/Applicant is not aware of the suit at the lower Court? (Ground one)
(2) Whether the authority to file an application to be joined as a party is one and the same with the interest of the party sought to be joined? (Distilled from grounds 2 and 4)
(3) Whether the Honourable trial Court had the jurisdiction to dismiss an application not heard on the merit? (Ground 3)
The 1st Respondent on his part, submitted a lone issue for the determination of the appeal thus:
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FIRST RESPONDENT ISSUE FOR DETERMINATION
Whether having regard to the affidavit evidence and other materials placed before the lower Court, the learned trial judge was right in his well considered ruling refusing the application for joinder made at the instance of the Applicant at the Court below.
Equally, the 2nd Respondent also formulated a lone issue for the determination of the appeal. It goes thus:
2ND RESPONDENT ISSUE FOR DETERMINATION
Whether the trial Court was right in dismissing the Appellant’s application for joinder and or whether the trial Court was right in refusing the Appellant to be joined as a party in the extant suit.
Meanwhile the 1st Respondent filed a notice of preliminary objection on 16th September, 2021 through which he challenged the competence of the appeal which robs this Court of its jurisdiction to entertain the appeal.
The grounds upon which the objection is predicated are:
(i) The Appellant herein not being a party to the proceedings at the lower Court leading to the ruling, the subject matter of this appeal, ought to have sought and obtained the leave of either the Court below or this Honourable Court before commencing this appeal as an interested party.
(ii) That the Appellant herein has neither sought nor obtained the leave of either the Court below or this Honourable Court before commencing this appeal.
(iii) All the grounds of appeal as considered in the notice of appeal are misleading and therefore incompetent.
(iv) The record was not signed properly.
The argument in support of the preliminary objection can be found in paragraph 3.3 of page 3 to paragraph 3.22 of page 8 of the 1st Respondent’s brief of argument.
The Appellant’s reply to the preliminary objection is contained in the Appellant’s reply to the 1st Respondent brief of argument filed on 18th September, 2020. Both the 1st Respondent and the Appellant adopted their respective argument contained in their respective processes filed.
In the light of this development, I will first determine the preliminary objection and after, proceed with the determination of the main appeal if necessary.
The argument of the 1st Respondent in respect of the 1st and 2nd grounds of preliminary objection is that right of appeal being statutory can only be exercised as provided for in the statute. He referred to S. 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and submitted that the provision has made ample provisions as to right of appeal from the decisions of the High Court to the Court of Appeal. His argument in this regard is that the Appellant by name Ahmed Zabadne was never a party to the proceeding culminating in this appeal at the lower Court and that his name is not in the ruling sought to be set aside (He relied on pages 1-16 and 73-80 of the record of appeal). He argued that the Appellant could not have appealed as of right to set aside the ruling of the trial Court refusing joinder of the Appellant to the suit as a Defendant. He added that the only available option left for the Appellant herein is to have appealed with leave as an interested party and follow the step laid down by the apex Court in the case of ODEDO V OGUEBEGO (2015) 13 NWLR (Pt. 1476) pg. 229 at 267-268 paras. H-C. He added that there is nothing to show that the Appellant had sought and obtained leave to appeal as an interested party before filing his notice of appeal. He referred to pages 81-84 of the record. Relying on the case of OBASI V MIKSON EST IND. LTD (2016) 16 NWLR (Pt. 1539) pg. 335 at 378 paras. F-G. He submitted that the appeal having been grossly found wanting by not seeking leave to appeal as an interested party deserves to be visited with the full weight of the law as enunciated in the case of OBASI V MIKSON EST IND. LTD (supra). That is to say that the Court should pronounce the appeal incompetent and also decline jurisdiction. He urge the Court to declare the appeal incompetent, dismiss it in-limine with substantial cost.
On the second ground of objection which is the alleged infraction of the rules of the Court wherein he alleged in grounds 1, 2 and 3 of the notice of appeal that the learned trial judge erred and or misdirected herself in law. This he said constitute an infraction of Order 7 Rule 2(2) of the Court of Appeal Rules, 2016. He argued that grounds 1, 2 and 3 of the Appellant’s grounds of appeal are not couched in line with the said Rule of Court (Order 7 Rule 2(2)). He added that the grounds are vague and misleading. Further, he contended that the rules of this Court does not contemplate a conjunctive complaint of error of law and misdirection rather what the rules provide for is a disjunctive ground of complaint as evident in Order 7 Rule 2(2). He urged the Court to strike out the three grounds. He relied on the case of NWADIKE V IBEKWE (1987) 4 NWLR (Pt. 67) page 718.
On ground 4 and from which issue 2 is distilled, he contended that the ground being an omnibus ground and the said ground being that of law, the omnibus ground cannot give birth to an issue of law. He relied on the case of CHIADI V AGGO (2018) 2 NWLR (Pt. 1603) pg. 128 at 211-212. In consequence, he submitted that no issue has been distilled from ground 4 and hence it should be deemed as abandoned. He relied on BAWA V ALIYU (2015) 3 NWLR (Pt. 1447) pg. 523. In the light of all the foregoing therefore, he argued that since all the grounds of appeal are incompetent, it leaves the appeal empty and naked and only worthy of being thrown out. It robs the Court of its jurisdiction and hence the Court should dismiss the appeal in limine.
In respect of the 4th ground of the preliminary objection, he submitted that the Appellant’s process was not properly signed in the sense that the signature on the said process is not specifically traceable to any of the counsel listed on the Appellant’s brief of argument. Thus he said, has the implication of misleading the Court as to the exact author of the brief. He relied on the case of WILLIAMS V ADOLD/STAMM INT. LTD (2017) 6 NWLR (Pt. 1560 pg. 1 at pages 19-20. The failure to tick the name of the signatory of the said brief will lead the Court into speculation as to the exact identity of the settler of the Appellant’s brief of argument. He relied on the case of UNITY BANK PLC V OLATUNJI (2013) 15 NWLR (Pt. 1378) pg. 503 at 535 paras. B-D. The implication of failure to specifically identify the counsel who signed the brief is fatal and leave the Court with no other option than to discountenance the Appellant’s brief of argument and strike out the appeal in limine.
The reaction of the Appellant to the foregoing argument of the 1st Respondent in respect of the preliminary objection is rooted in his suggested issue of whether the Appellant needed leave to file an appeal in this Court. He argued that the 1st Respondent by his notice of preliminary objection is out to mislead the Honourable Court. He added that it is the Appellant that filed the application for joinder at the lower Court and which was refused by the trial Court on 8th May, 2019, this he said was done with the leave of the Court granted on the 24th February, 2020 after hearing the motion on notice by the Appellant for joinder contain on page 1 of the record of appeal. The determination of that application against the Appellant by the trial Court led to the instant appeal before this Court. He added that issues were joined by parties. The 1st Respondent filed a counter-affidavit dated 9th January, 2019 and the Appellant filed a further affidavit dated 16th January, 2019. The trial Court took evidence on the identified conflict in the affidavit evidence and thereafter the Court ruled on the 8th day of May, 2020 and against which ruling gave birth to this appeal. He argued that paragraph 3.6 of the 1st Respondent’s brief constitute a misconception. He urge the Court to discountenance the argument and dismiss the preliminary objection for lacking in merit.
On the second issue which is on the ground of appeal, he argued that all the grounds are in line with the provision of the rule of the Court. He urged the Court to refuse the application and hear the appeal on its merit and find that the Appellant ought to be joined in the appeal as an interest party in the pending suit before the trial Court. The application which is the subject matter of this appeal is not that seeking to join in the appeal as an interested party. On whether or not the issue is properly distilled from the ground identified, he argued that it does not lie within the domain of the 1st Respondent to question. He urged the Court to discountenance the argument which he describes as a wild goose chase. He relied on the following cases WESTERN STEEL WORKS V IRON AND STEEL WORKS (1987) 1 NWLR (Pt. 49) 284 at 304, EJOWHOMU V EDOK-ETER MANCHLAS LTD (1986) 5 NWLR (Pt. 39) 1 at 16 and KANO TEXTILES V GLOEDE AND HOFF LTD (2005) 22 NSCQR (page not provided). He added that affidavit evidence is to be considered by the Court by placing same in an imaginary scale and not impugn one affidavit and allow the other. He accused the lower Court of not allowing the Appellant to ventilate his grievance and did not resolve the issue before it. He referred to the following cases ADEBOIYO V ADUSEI (2004) 4 NWLR (Pt. 862) Ratio 4 at page 60. AGBONIFO V AIWEREOBA (1988) 1 NWLR (Pt. 70) 325, MISR (NIG) LTD V IBRAHIM (1975) 5 SC 55 and EGONU V EGONU (1978) 11-12 SC 111.
He prayed the Court to dismiss the notice of preliminary objection and hear the appeal on its merit.
I have carefully read through the argument of respective Counsel in respect of the preliminary objection raised by the 1st Respondent to the competence of the appeal by the Appellant, as an interested party ought to seek leave of this Court before he could competently appeal. Having not done that an infraction of Section 243(a) of the Constitution of the Federal Republic Nigeria 1999 has occasioned a miscarriage of justice and hence the appeal should be dismissed in-limine. The position of the law as stated by the 1st Respondent’s learned counsel regarding Section 243 (a) is correct however, considering the submission and argument of the learned Counsel to the Appellant contained on pages 1-2 of the Appellant’s reply brief wherein he stated that leave was sought and obtained on 14th day of November, 2019 and to which the 1st Respondent has no response, in the circumstance simply suggest that the Appellant duly sought and obtained the requisite leave prescribed under the Constitution before launching his appeal.
There is that argument by the 1st Respondent that the Appellant is not a party to the suit and hence he has no right of appeal. This contention to me and in agreeing with the submission of the learned counsel representing the Appellant that it is a gross misconception on the part of the learned counsel representing the 1st Respondent. This cannot be put in any other way better than as described by the learned counsel representing the Appellant. A look at the party column of the Certified True Copy of the motion on notice filed by the Appellant, contained on pages 1-5 and page 9 of the record, together with pages 17 and 29 of the record of appeal are the counter-affidavit by the 1st Respondent and his written address in opposition to the application by the Appellant is contained, it becomes obvious and crystal clear on those pages that the Appellant name future conspicuously as Applicant on all those pages. It is therefore apt and right to come to the conclusion that the 1st Respondent has a gross misconception of the processes filed by the Appellant seeking the order of the Court joining him as an interest party. Let me add that this type of allegations and complaint by the 1st Respondent in the presence of those processes herein before referred to constitute a gross inadvertence on the part of the 1st Respondent’s learned counsel. I will in circumstance advice him to read carefully when going through the records.
The Appellant in my humble view diligently vide his motion on notice dated 2nd January, 2019 and filed on 3rd January, 2019 sought for the order of the trial Court to be joined as a second Defendant in the suit instituted by the 1st Respondent. Having said this much, I decline to associate myself with the submission by the learned counsel representing the 1st Respondent that the Appellant did not seek and obtained leave of the Court to appeal and that his name did not feature in the processes before the Court.
For all the foregoing, I have no hesitation in my mind that the preliminary objection by the 1st Respondent is meritless and same be and is hereby dismissed.
I now proceed to consider the main appeal haven put the contention of the 1st Respondent vide his notice preliminary objection to rest.
Somewhere before now, in this judgment, I reproduced the respective issues presented by counsel representing parties i.e., the Appellant and the 1st and 2nd Respondents respectively. I have decided to adopt the issues formulated by the Appellant for the determination of the appeal. In my view, the three issues are interwoven and hence I have decided to treat them together.
The Appellant contended that before any action is instituted by company, the Board of Director would pass a board resolution to commence an action to remedy the wrong against the company. He argued that the right to the Appellant was breached and hence the need to join him in the suit so that the Appellant would be able to ventilate his grievance over the action instituted at the trial Court. He relied on Sections 300 and 301 of Companies and Allied Matters Act (Cap. 20) 2004. He added that the fact that the trial Court agreed that the Appellant was not aware of the suit at the trial Court, the right order would have been one joining the Appellant. He submitted that none of the provision of Section 303 of CAMA can be carried out without joining the Appellant. He urged the Court to resolve issue one in favour of the Appellant.
On issue two, he argued that the Appellant being a director of the Plaintiff suggests that he should be joined and this has nothing to do with the counsel’s authority to file the application. He relied on the case of ALEPARABONG COMM. BANK (NIG.) LTD V U.B.A PLC (2020) 8 NWLR (Pt. 1726) page 201 at pages 217-218 paras. E-C where it was held thus:
“A joinder of a party can be made by the Court suo motu or on application by a person or persons who can satisfy the requirement that his joinder is necessary to enable the Court effectually and completely to adjudicate upon and settle all the question involved in the cause or matter.”
In the light of the foregoing, he argued that the finding of the trial Court that the power of attorney is fraudulent and dismissing the application of the Appellant has nothing to do with the application of the Appellant to be joined as a Defendant. The finding of the trial Court that the power of attorney is fraudulent has nothing to do with the Appellant’s application and hence occasioned a miscarriage of justice. He submitted that the application by the Appellant for joinder is competent. He contended further that in an application for joinder, the consideration of the trial Court is whether the entry of the party sought to be joined will enable the Court to effectually and completely adjudicate upon and settle all questions. He added that the questions to be determined are:
(a) Whether the cause or matter is liable to be defeated by the non-joinder of the third party as Defendant or in other words, whether it is possible for the trial Court to adjudicate upon the cause of action set up by the Plaintiff unless the third party is added as Defendant.
(b) Whether the third party is a person who ought to have been joinder as Defendant in the first instance.
(c) Whether the third party is a person whose presence before the Court as Defendant will be necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter.
He argued that from the foregoing, there is no where that the law states that the authority to bring application once faulty, the application for joinder should be dismissed. He urged the Court to set aside the judgment of the trial Court and join the Appellant so as to effectually and completely adjudicate on the matter before the trial Court.
On issue 3, he submitted that rather than for the Court dismissing the application haven refused same, it should have been struck out. He added that an order for dismissal of a case can only be made when a case has been heard on its merit and when all the parties are before the Court and the Appellant fail to prove his case or the party that asserts a position fails to provide sufficient evidence to prove the facts asserted. He relied on the case of ILORI V BENSON (2000) 9 NWLR (Pt. 573) 570, YONZUGHUL V A.G. BENUE STATE (2005) 5 NWLR (Pt. 918) 226 Ratio 12.
He urged the Court to resolve the issue against the Respondents and in favour of the Appellant and set aside the ruling of the trial Court and join the Appellant as a Defendant in suit no. PLD/J619/2018.
On behalf of the 1st Respondent, it is submitted that the lone issue begging for determination in this appeal is whether having regard to the Affidavit evidence and other materials placed before the lower Court, the learned trial judge was right in his well considered ruling refusing the application for joinder made at the instance of the Applicant at the Court below. He argued that it is pertinent to state that having discovered a major irregularity in the annexure to the application for joinder wherein one Ibrahim Zibadne has been fraudulently included as one of the directors of the 1st Respondent, the learned counsel for the 1st Respondent had caused an inquiry to be made at the Corporate Affairs Commission in respect of the authority to the annexed Exhibit 1 (He referred to pg. 7 of the record). He added that the commission had confirmed the suspicion of the learned counsel to the 1st Respondent when in the said Exhibit B, the name of the said Ibrahim Zibadne is conspicuously missing in the list of directors of the 1st Respondent. In addition to the foregoing, it was discovered that the instrument of authority referred to in para. 4 of the Applicant’s further and better affidavit was not signed by the purported donor and Applicant for joinder at the lower Court. It is his argument that the submission of the learned counsel of the Appellant is misleading as canvassed in his brief particularly in respect of his issues 1 and 3 to suggest that the application for joinder at the lower Court was not heard before same was dismissed. He added that contrary to the Appellant’s counsel argument in support of his issue 3 in paragraphs 6.01-6.03 of the Appellant’s brief, the said motion for joinder was not only moved but a well considered ruling was delivered. He referred to page 53 lines 6-9 of the record wherein the learned trial judge a finding to the effect that oral evidence was required to resolve the contradictions found in the affidavit of the parties in line with the decision in the case of OBIEGUE V A.G. FED. (2014) 5 NWLR (Pt. 1379) pg. 171 at 211-212 paras. H-G. He argued further that having resolved the conflict in favour of the Respondents, the learned trial judge gave a considered ruling dismissing the application for joinder on 8th/5/2019 (He relied on page 68 of the record). It is his argument that one cannot put something upon nothing and referred to the case of UAC V MCFOY (1962) AC 152. He submitted that it is crystal clear that contrary to the submission of learned counsel to the Appellant in support of his issues 1 and 3, not only was the application for joinder heard, a well considered ruling was delivered dismissing same. He urge the Court to resolve the issue against the Appellant.
On issue 2 by the Appellant, he urge the Court to discountenance the Appellant’s argument. He submitted that an application for joinder is not usually granted as a matter of cause as same is within the ambit of the discretionary power of the Court and that such discretionary power must be exercised judiciously and judicially based on the totality of materials placed before the Court. He referred on the case of ENTERPRICE BANK LTD V AROSA (2014) 3 NWLR (Pt. 1394) pg. 256 at 292 paras. A-B which among others laid the principle of joinder of parties and the case of AZUBUIKE V PDP (2014) 7 NWLR (Pt. 1406) pg. 292 at 313-314 paras. G-A. He argued that the Appellant could not have been joined in the substantive suit having regard to the fact that the Applicant does not fall within the contemplation of the four ways test enunciated by the Supreme Court in the case of AZUBUIKE V PDP (supra). He contended that the document of title sought to be recovered by the 1st Respondent from the 2nd Respondent’s company belong to the 1st Respondent’s company. The said document of title was deposited as collateral for loan advanced to the 1st Respondent by the 2nd Respondent. Upon full payment of the loan, the 2nd Respondent has neglected and or refused to release the document of title contrary to the terms of the contract between 1st and 2nd Respondent. This led to the institution of the suit no. PLD/J151/2017 against the 2nd Respondent by the 1st Respondent. The Appellant who is one of the directors of the 1st Respondent applied to be joined as a co-defendant. He submitted that the 1st Respondent’s company has no business in joining its own director to recover the document used to secure a loan facility taken from the 2nd Respondent having fully paid the said loan and accordingly discharged from the obligation therein. He argued further that the suit of the 1st Respondent against the 2nd Respondent for return of its document of title could be decided without joining the Applicant/Appellant.
Finally he submitted that the Applicant at the Court below is not contesting the decision of the lower Court declining joinder but a fifth columnist and meddle some interloper who clearly was not seized of the proceedings at the lower Court but has approached this Court with misleading set of facts totally at variance with what transpired at the trial Court. He urged the Court to discountenance the appeal and dismiss same with cost.
The learned counsel representing the 2nd Respondent and who is the only Defendant in the main suit before the trial Court also file a brief of argument on the 22nd day of January, 2021 but out of time. By the order of this Court sought and obtained, the said brief of argument of the 2nd Respondent was deemed as properly filed and served on the 25th day of January, 2021. Therein he submitted a lone issue for determination thus:
2ND RESPONDENT ISSUE FOR DETERMINATION
Whether the trial Court was right in dismissing the Appellant’s application for joinder and or whether the trial Court was right in refusing the Appellant to be joined as a party in the extant suit.
I have painstakingly read the brief. It is neither here nor there. He has cleverly acted as an amicus curiae though self appointed. He has advanced arguments which according to him would assist the Court in arriving at a just determination of the appeal. See pages 4 and 11 of his brief of argument where he said and concluded as follows:
At page 4 he said thus:
“We must humbly submit from the outset that the facts and circumstance of this appeal are such that the 2nd Respondent’s counsel as ministers in the temple of justice owes this Honourable Court a duty to assist the Court in reaching and or arriving at a just determination of this appeal whichever way this appeal goes, the 1st Respondent already has a formidable defence to the 1st Respondent’s suit at the trial Court.”
At page 11, he has this to say in conclusion:
“In conclusion as earlier submitted, the role of the 2nd Respondent (particularly its counsel) in this appeal is to assist the Court in arriving at the just determination of this appeal. We most humbly hope and believe that this brief will assist the Court in arriving at its decision in this appeal. Most obliged.”
My learned brother Adumein JCA in the case of DR. (REV.) OLOPADE AGORO V OBA ADEKUNLE AROMOLARAN AND ANOR (2011) LPELR – 8906 (CA) has this to say on who is an amicus cariae. Hear him:
“An Amicus Curiae is the latin phrase for a “friend of the Court” and he is “a person who is not a party to a lawsuit but petitions the Court or is required by the Court to file a brief in the action because that person has a strong interest in the subject matter” BLACK’S LAW DICTIONARY, EIGHT EDITION, page 93. In practice, a learned counsel does not need to have “strong interest”, or any interest at all, before he can be invited to briefly address the Court as amicus curiae.”
See also the case of JUSTICE F.O.M. ATAKE V CHIEF NELSON ASIGBORO AFEJUKU (1994) LPELR-585 (SC). Ogundare JSC of blessed memory said thus:
“Amicus curiae has been defined in Osborr’s concise Law Dictionary 7th Edition at page 25 as: A friend of the Court, one who calls the attention of Court to some point of law or fact which would appear to have been overlooked; usually a member of the Bar. On occasion, the law officer are requested or permitted to argue a case which they are not instructed to appear. And in Grice v The Queen (1957) II DLR (2nd) 699, 702 Ferguson, J define the expression thus “Amicus Curiae is defined as a bystander, usually a lawyer who interposes and volunteers information upon same matter of law in regard to which the judge is doubtful or mistaken in a matter of law, may inform the Court… A similar definition appears in Earl Jowtt’s Dictionary of English Law where it is stated: “Amicus Curiae, a friend of the Court, that is to say, a person whether a member of the bar not engaged in the case or any other bystander, who calls attention of the Court to some decision, whether reported or unreported or some point of law which would appear to have been overlooked……”
Bearing all the foregoing and many other decide cases on issue of amicus curiae in mind and the seeming part played by Mrs. L. J. Lagan of counsel in this interplay vis a vis his position as a legal practitioner duly engaged by the 2nd Respondent in this appeal, his brief has no place considering provision of Order 19 of the Court of Appeal Rules, 2016. To me, he abdicated the duty assigned to him by his client (the 2nd Respondent) and instead decided to play the role of an amicus curiae. It cannot be said in this circumstance that he was invited by the Court to so act, he is not acting as a neutral legal practitioner who is ordinarily advising the Court and devoid of any interest in the appeal at hand. He is the counsel engaged by and representing the 2nd Respondent. On that note, his brief of argument is discountenanced.
Having said these and upon a careful reading of the submission by counsel representing the Appellant and 1st Respondent, the question I consider germane having regard to the three issues donated by the Appellant is whether or not the Court below was right in refusing the application for joinder of the Appellant as a Defendant in the suit instituted by the 1st Respondent against the 2nd Respondent.
Generally in an application of the nature of that of the Appellant before the trial Court seeking for an order joining him as a co-defendant, what the Court is called upon to do is to exercise his discretionary power and grant the application. Let me put on record that the application of the Appellant before the trial Court is not to join as a party simpliciter but to join as an interested party. Let me also add that I am not unmindful of the position of the law for making a person either natural or legal to be a party to an action which is that he should be bound by the result of the action. Such question to be settled in the action must be those which cannot be effectually and completely settled unless he is a party. See IBEGWURA ORDU AZUBUIKE V PEOPLES DEMOCRATIC PARTY AND ORS (2014) LPELR – 22258 (SC). In this appeal, the application as I said before is that of joining an interested party.
The question therefore is who is an interested party. An interested party in a matter to my understanding is that person who has suffered or may suffer a legal grievance or such person against whom a decision has been made depriving him of a legitimate right. See NGIGE V OBI (2006) 14 NWLR (Pt. 999) 1. It is also trite that a person aggrieved is that who has suffered a legal grievance.
The contention of the Appellant before the trial Court in summary is that he is a director of the Plaintiff (1st Respondent) in the suit before the trial Court and desires to be joined as 2nd Defendant to the action against the sole Defendant, ACCESS BANK PLC. The brief fact of the case between the 1st and 2nd Respondents as Plaintiff and Defendant is that the Plaintiff took a loan facility from the Defendant bank and deposited collateral. Having repaid the facility granted her, she is seeking for the release of the title documents from the Defendant. The Applicant being a director of the Plaintiff said the directors are not considered and that there is no resolution of the board of director conferring authority on the Plaintiff to sue. He sought to be joined as a Defendant. My worry here is predicated on the view of whether the Appellant has a common interest with the Defendant bank who granted a loan facility to the company to which his is a director. He is now standing against the interest of the Plaintiff’s company to which he is a director and whose interest he has a duty to protect and defend.
The foregoing stated facts clearly show the cause of action in the matter between the 1st and 2nd Respondents. The question is whether the presence of the Appellant as a Defendant in the suit is necessary and if the issue before the Court cannot be effectually and effectively determined without the Applicant. It is trite that once the question in issue can be settled without the presence of the Applicant then the application of the Applicant seeking to be joined is dispensable. To clear this question whether or not the Appellant is a necessary party, recourse has to be made to the subject matter of the suit. See GENERAL ELECTRIC CO. V AKANDE (2017) ALL FWLR (Pt. 893) 13010 at 1323, FBN PLC V OZOKWERE (2014) 3 NWLR (Pt. 1395) 439 at 460. In the case of FEBSON FITNESS CENTRE V CAPPA LTD (2015) 6 NWLR (Pt. 1455) 265 at 281, the apex Court said thus:
“A necessary party to a suit is a party who is not only interested in the subject matter of the proceeding but also a party whose absence in the proceeding could not be fairly dealt with.”
Looking at the application of the Appellant before the trial Court and considering his reason for seeking to be joined as a Defendant I cannot see how the matter between the 1st and 2nd Respondents would not be determined without the presence of the Appellant as a Defendant. Does it mean that joining as a Defendant, he will be defending the interest of the Plaintiff as one of her director or that of the bank. Also I cannot see how the release of a title document used as a collateral for a loan facility to his company (the Plaintiff) will adversely affect his interest. If there is any reason, it is not disclosed in the Appellant’s affidavit in support of the application before the trial Court.
Therefore, if exercise of discretion in an application of this nature has to be exercised judicially and judiciously and based on sufficient material. See the case of IDEOZU V OCHOMA (2006) 4 NWLR (Pt. 970) pg. 364. The exercise of such discretion must be honest and in the spirit of the statute otherwise the act done will not fall within the statute. See OPUTA JSC as he then was and of blessed memory in the case of THE UNIVERISTY OF LAGOS AND ORS V. C.I.O. OLANIYAN AND ORS (1985) 1 SC 295 at Pp. 344-345 and 345-346, ANPP V R.E.C. AKWA IBOM STATE (2008) 8 NWLR (Pt. 1090) 453 at 513. In the circumstance of the fact of this case, the learned trial Judge cannot be faulted in refusing to exercise the Court’s discretion in favour of the Applicant (Appellant). I am also not unmindful of the finding of the trial Court on issue of the power of attorney donated to the counsel to the Applicant. The general rule governing the fiduciary relationship of a legal practitioner and his client is that no disclosure of any communication made to the legal practitioner in the cause and for the purpose of his employment as a legal practitioner by or on behalf of his client is allowed. This kind of communication is the one regarded as privileged communication. See the case of DAWAKI GEN. INT. LTD V AMAFCO ENT LTD. (1999) 3 NWLR (Pt. 594) 224.
It is also trite that Courts usually and normally take counsel’s word for it when he announces that he is appearing for a client. The Court does not require counsel to tender written evidence to prove that he has been so briefed. The issue of power of Attorney to show that the learned counsel who acted on behalf of the Appellant has his authority to do so is of no moment. See TUKUR V GOVERNMENT OF GONGOLA STATE (1988) 1 NWLR (Pt. 68) 39. The finding of the learned trial judge as it relates to issue of power of attorney is hereby set aside.
Having gone this far and in view of all the foregoing, it is my conclusion that in the circumstance of the fact of this case and considering the condition laid down by the Supreme Court and this Court for granting of an application for joinder as an interest party as stated in chain of decided case, some of which are referred to in this judgment, I have no hesitation in resolving the issues against the Appellant. This appeal therefore lacks merit and it is hereby dismissed.
Therefore, the ruling of the learned trial judge other than his finding on the issue of power of attorney set aside herein in suit no. PLD/J619/2018 delivered on the 8th day of May, 2019 Coram Hon. Justice N. L. Musa is hereby affirmed.
Parties to bear their respective costs.
ADZIRA GANA MSHELIA, J.C.A.: I have gone through the draft of the lead Judgment just delivered by my learned brother Oniyangi, J.C.A. I agree with his reasoning and conclusion that the appeal should be dismissed. I too dismiss the appeal and abide by the consequential orders contained in the lead Judgment, inclusive of costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, JCA, I am in agreement with his reasoning and conclusion. I also dismiss the appeal.
Parties are to bear their costs.
Appearances:
A. J. Adick, Esq. For Appellant(s)
F. M. Kwede Esq., with him, O. A. Komolafe Esq. and Matta Daniel Esq. – for 1st Respondent
Kamle Paul Esq. holding the brief of I.K. Ijomah Esq. – for 2nd Respondent For Respondent(s)