AKIN OJO v. YISA EYINFUNMI OSENI & ANOR
(1987) LCN/0036(CA)
In The Court of Appeal of Nigeria
Wednesday, the 15th day of April, 1987
Case Number: CA/L/138/85
RATIO
ACTION: THE IMPORTANCE OF MAKING A PERSON A PARTY TO AN ACTION
As was observed by Devlin J. in Amon v. Raphael Tuck & Sons Ltd. (Supra) the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. This is purely a question of jurisdiction.” Devlin. J., made it clear in Amon’s Case (supra) at p. 368, where he said: “The beginning and end of the matter is that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose. PER PHILIP NNAEMEKA-AGU, J.C.A.
JUSTICES:
PHILIP NNAEMEKA-AGU Justice of The Court of Appeal of Nigeria
IDRIS LEGBO KUTIGI Justice of The Court of Appeal of Nigeria
OWOLABI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
AKIN OJO Appellant(s)
AND
- YISA EYINFUNMI OSENI
2. JULIANA AKINBINU Respondent(s)
PHILIP NNAEMEKA-AGU, J.C.A. (Delivering the Leading Judgment): This interlocutory appeal arose from the joinder of the appellant as a party in a suit in which the first respondent was plaintiff and the second respondent, the defendant. The plaintiff did not want to sue the appellant, and the appellant did not consent to his joinder. In the substantive suit, the plaintiff (1st respondent) claimed against the defendant (2nd respondent) as follows:
“The plaintiff’s claim against the defendant is for the sum of N140,000.00 being money payable by the defendant to the plaintiff as per a loan agreement dated 25th of November 1977. The defendant has refused and/or neglected to pay the said sum of N140,000.00 despite repeated demands.”
The first respondent’s statement of claim was a straight-forward pleading showing how the debt arose. The second respondent amended her statement of defence and in the amendment pleaded fraud, non est factum, and unenforceability. She also counter-claimed against the 1st respondent for a declaration that the loan agreement was void, an order cancelling or setting it aside and an injunction. The gist of her defence was that the written agreement being relied upon to sustain the claim was fraudulent in that it was the appellant who acted as solicitor for both sides and fraudulently procured her signature on the false documents. It was also her case that the documents she was told she was signing were drafts of some deeds of conveyance, and not a loan agreement between the 1st and 2nd respondents. During the trial the appellant as solicitors for the parties gave evidence on behalf of the first respondent. He denied the fraud. When he was under cross-examination on behalf of the second respondent, the learned trial judge himself queried the propriety of continuing the trial without making the appellant a party in view of the allegations of fraud made against him. Also some of the questions put to the appellant about the fraud were disallowed by the learned judge on the ground that the particulars of fraud as pleaded were at variance with the questions being asked. Thereafter the second respondent brought an application to the court for leave to amend her statement of defence and counter-claim in order to plead fresh and different particulars of fraud. This was allowed. Leave was also given for her to join the appellant as a co-defendant. It was the granting of the application that has led to this appeal by the appellant.
The grounds of appeal were directed against the joinder of the appellant as a co-defendant and leave to amend to file fresh and different particulars of the fraud relied upon. For the appeal, only the appellant and the 2nd respondent filed their briefs.
The issues for determination as framed by the appellant appeared to me to be rather diffuse running as it does to 10 “issues”. But the issues as framed by the learned counsel for the second respondent appeared to have left out an important aspect of the case, that is, in relation to the intervention by the learned trial judge. I believe, however, that the issues canvassed by the parties will be most adequately reflected by a combination of the first issue as framed by the appellant and the three issues, framed by the respondent. The issues for determination in the appeal are, therefore, as follows:
“(i) Whether the learned trial judge was right in advising the learned counsel for the second respondent to bring an application for amendment in order to amend an allegation of fact contained in paragraph 5(ix) and (x) of the second respondent’s pleading by substituting a new allegation of fact as contained in paragraph 5(ix) and (x) of the amended statement of defence.
(ii) Whether the appellant is a necessary party having regard to the issues formulated between the first and second respondents.
(iii) If the answer to question (ii) is in the negative whether it is desirable to have the appellant joined having regard to the said issues; and
(iv) If the answer to questions (ii) and (iii) is in the affirmative whether the fact that the appellant is a witness in the action obviates a necessity to have him joined as a party.
I shall deal with the complaint against the joinder of the appellant first. The appellant pointed out that it was the learned Judge who suggested his being joined as a co-defendant on the ground that certain allegations of fraud and impropriety were made against him, even though no relief was claimed against him either in the original claim or in the 2nd respondent’s counter-claim. He pointed out that both the 1st respondent (plaintiff) and himself opposed the joinder. Giving his reasons for the joinder, the learned Judge stated:
“In this case even if it can be said that the party sought to be joined, that is Mr. Akin Ojo, is not “a necessary” party as no relief whatsoever is sought against him by the Plaintiff, on the basis of his writ and statement of claim (which is a simple claim for N140,000.00 debt alleged to be due from the defendant), I am convinced on the authority of Peenok Investment Limited v. Hotel Presidential Ltd. (1982) 12 S.C. 1 that it is desirable to join Mr. Akin Ojo as a party herein. It is for those reasons only that I exercise my discretion. I order accordingly. As the matter of joinder was first raised by me suo motu on 28th May, 1985………………”
The appellant submitted that the joinder was wrong because he was not a necessary party: Amon v. Raphael Tuck & Sons Ltd. (1956) 1 Q. B. 357. He also cited Hood Barrs v. Frampton Knight & Clayton (1924) W.N. 287 Citing Lajumoke v. Doherty (1969) N.M.L.R. 292, he submitted that courts are reluctant to join as a defendant a person who is not an intervener and a person whom the plaintiff does not wish to sue, especially as the matter in dispute can be effectually and completely adjudicated upon without the joinder. Furthermore the appellant and the original defendant have no common interest. He submitted further that it was wrong to have joined him as the effect was, as it were, to make him to defend the original claim and the counter-claim at the same time. Finally he submitted that the instant case is distinguishable from Peenok’s Case (supra).
In reply the learned counsel for the respondent submitted that in so far as the court was required to determine the fraud or lack of it of the appellant as a necessary issue before the defence of the 2nd respondent can be found to have been established or not, it is desirable to join him as a party so that that issue would not be decided behind his back. He cited the decision of Eso, J.S.C. in Peenok’s Case that joinder should be ordered to bring in parties who claim interest in the case or who are likely to be affected by the result. He submitted that the principle of audi alteram partem dictated that the appellant should be joined. Relying on the dicta of Devlin, J. in Amon v. Raphael Tuck & Sons Ltd. (1956) 1 Q.B. 357, at p.386 he submitted that it did not matter that appellant would not be directly affected by the order in the action as originally constituted. The important thing was that he must show that he could not effectually set up a defence unless the appellant was joined. He submitted that calling a person as a witness does not obviate the necessity or desirability of his being joined as a party.
I believe it is necessary to begin my consideration of the issues raised in this appeal by noting one important factual difference between this case and that of Peenok’s Case (supra). The only connection the appellant had with this case was that he was the solicitor who prepared the document which the 2nd respondent says is a fraud and for which she pleads non-est factum. In Peenok’s case not only did the Rivers State Government promulgate the Edicts (Nos. 15 – 17) in question but also they were Edicts which they were using for their government of the Rivers State. Therefore it would be wrong, in my view, while considering whether or not the appellant ought to have been joined on the authority of Peenok’s Case to hold that because it was held that the Rivers State Government ought to have been joined as a desirable party, then it must follow that the appellant ought to be. By the very nature of things, as Eso. J.S.C., pointed out at p.98-99 the audi alteram partem rule dictates that a State Government should be given the opportunity to be heard before any of its edicts is declared null and void. It was because of this position of the Rivers State Government that Idigbe, J.S.C. (as he then was) said at p.45 of Peenok’s Case:
“There is no question that, in the case in hand, it cannot be said that the Government of the Rivers State will be directly affected by the result of the action; undoubtedly the Government may be indirectly affected by the pronouncement which could be made, even if only obiter, on the Edicts Nos. 15 and 17 of 1972. It is, therefore, desirable to have the said Government joined as a party to the proceedings in order that it may be bound by the result….
In the instant case, the learned Judge, in his ruling, made it clear that he was joining the appellant on the authority of the principle in Peenok’s Case (supra). I think, however, that there is force in the argument of the appellant that that case is distinguishable from the instant. For a solicitor who simply drafted a document, which is being challenged in the suit, is not in the same position with a State Government which has interest in defending the validity of its edicts. The Government is the “owner” of its laws for the governance of its people; in the instant case, the existing parties in the suit are the “owners” of the documents which the appellant drafted for them as their solicitor. If in the performance of his duties as a solicitor to both parties the appellant defrauded one of them, that party has his proper remedy against him which may not necessarily be to join him in a suit in which he should not be joined.
The next observation I wish to make is that both sides cited the case of Amon v. Raphael Tuck & Sons Ltd. (supra) in support of their respective arguments. It is necessary to explain that that case dealt with the question of the jurisdiction of the court in England to join a party who is not an intervener and whom the plaintiff does not want to sue under the R.S.C. Order) 16 rule 11 which makes a somewhat similar provision with Order 13 rule 19 of the High Court of Lagos (Civil Procedure) Rules, 1972. That it goes to the jurisdiction of the court to order a joinder is supported by a number of Nigerian decisions. See, for examples, the opinions of Idigbe, J.S.C. (as he then was) in Peenok’s Case at pp. 44-45, Eso, J.S.C. at p.96 ibidem; see also Taiye Oshobaja v. Raufu Dada & Ors: CA/L/134/85 of the 9th day of March, 1987 (unreported) Also in Chief A. O. Uku & 4 Ors. etc. v. D.E. Okumagba & Ors. (1974) 3 S.C. 35, Udoma J.S.C. (as he then was) said at pp. 62- 63:
“It seems to us quite plain that without the respondent being joined as a co-defendant, the present suit is not liable to be defeated as it is possible for the court to adjudicate upon the cause or matter without the presence of the respondent as a representative of the Olodi family. The respondent and the families of Emakro, Itifo and Ologho are not claiming in the same right with the appellants. As was observed by Devlin J. in Amon v. Raphael Tuck & Sons Ltd. (Supra) the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. This is purely a question of jurisdiction.”
Devlin. J., made it clear in Amon’s Case (supra) at p. 368, where he said:
“The beginning and end of the matter is that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose.”
Therefore it is beyond question that the principle in Amon’s Case is primarily that of the jurisdiction to join such a person. On this principle it follows that unless it could be said that unless the appellant was joined as a co-defendant the claims and counter-claims before the court would be defeated, the court does not even have the jurisdiction to order the joinder of the appellant. Clearly the 1st respondent’s straight claim for debt of N140,000.00 does not concern the appellant at all. Now the counter-claim was couched in the 3rd Amended Statement of Defence & Counter-claim as follows:
“The defendant repeats paragraphs 1 to 9 of her statement of defence. Wherefore the Defendant counter-claims for:
(i) A declaration that the loan agreement dated 25th November, 1977, and purportedly executed between the plaintiff and the defendant is a falsely procured document;
(ii) An order annuling, cancelling or setting aside, the said Loan Agreement;
(iii) An injunction restraining the plaintiff by himself his servants agents or his family from seeking to enforce the terms of the aforesaid loan agreement.”
This pleading was exhibited to a notice of further directions on 24/7/85, that is some time after the order for joinder was made on the 13th of June, 1985. It is noteworthy that no claim is directed against the appellant, even in this last amended statement of defence. Does this necessarily mean that the appellant could not be rightly joined as a defendant in such a case? I must point out that this is not necessarily conclusive. No doubt earlier decisions treat it as conclusive against the joinder. See on this, such cases as – McCheane v. Gyles (No.2) (1902) 1 Ch. 911, per Buckley L.J. at p.913 and Norris v Beazley 2 C.P.D.80. Also Eve, J., in Hood Barrs v. Frampton Knight & Clayton (1924) W.N.287 was recorded as saying:
“Convenient as it (i.e. joinder of such a person) would no doubt be, he would decline to make an order to add a defendant against whom no relief is sought.”
Indeed in Lajumoke v Doherty (1969) N.M.L.R. 281, at p.293, Eso, J.A. (as he then was) suggested that where an order of joinder has been made in such a case but the plaintiff fails to amend his claim to include a claim against the new defendant the person joined can successfully apply to be struck out of the suit. On a view of this line of decided cases on the point, one is bound to agree with the eminent Justice of Appeal where he said at p.292:
“From all these decisions, it is our view that one principle evolves clearly and that is: in the class of cases where joinder is sought by the defendant against the wishes of the plaintiff and without the consent of the person sought to be joined ……..the court has always been reluctant to allow the joinder.”
And there are decisions of the Court of Appeal in England which show that the fact that there is no claim in form against the person so joined is not necessarily conclusive that he ought not to have been joined. Such decisions include: Montgomery v. Foy, Morgan & Co. (1895) 2 Q.B. 321 and Norbury, Natzio & Co. Ltd. v. Griffiths (1918) 2 K.B. 369. Indeed in Bentley Motors (1931) Ltd. v Lagonda Ltd. (1945) 2 All E.R. 211, Evershed, J., held in terms that it was unnecessary that the plaintiff should have a cause of action against the new defendant.
All I can say from a consideration of the gamut of decided cases on the point is that at same point they appear irreconcilable. The reason appears to be that some of the courts construed the rule very widely and others rather narrowly. For an example, the English Court of Appeal in Gurtner v. Circuit & Ors. (1968) 2 Q.B. 587 and Re Vanderville’s Trust (1969) 3 All E.R. 496 expressly gave a wider interpretation to the rule. But the House of Lords in Re Vanderville (1971) A.C. 912, at pp.932 and 933 expressly over-ruled the Court of Appeal’s decisions based on the wider interpretation. The result is that the law in England is as enunciated in Amon’s Case (supra).
In that state of the law, I should then ask myself two questions. First had the court below, on the principles I have examined, jurisdiction to have joined the appellant? It appears quite clear to me that without the joinder of the appellant neither the claim nor the counter-claim was liable to be defeated because of the non-joinder. As this is the only basis for the court’s jurisdiction in the matter and so that the appellant should be bound by the result, the joinder was erroneous as being made without jurisdiction. I am not impressed in this respect by the submission of the learned counsel for the 1st respondent that if the appellant was not joined the issue of fraud raised on the pleading of the 2nd respondent would have been decided behind his back. It is noteworthy that the appellant was already a witness in the case. This brings me to the second question which was also posed by the learned counsel for the 2nd respondent in his brief: can attendance as a witness obviate the necessity or desirability to be joined as a party? I think it depends on other considerations: if the appellant were a necessary or even a desirable party and the facts brought the matter within the cases in which the court had jurisdiction, the fact that he was called as a witness would not have obviated his being joined as a party. But, as it was otherwise, I should recall what Devlin. J. said in Amon’s Case (supra) at p.380, where he said:
“What makes a person a necessary party? It is not, of course, merely that he has relevant evidence to give on some of the questions involved: that would only make him a necessary witness. x x x x x x x x x x x x x x x x x x x x x x x The only reason which makes it necessary to make a person a party to an action is that so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.”
On these principles and on my views above, I am satisfied that the appellant was a necessary witness, and not a necessary or even desirable party.
Furthermore, it appears to me that it is after it has been shown that there are facts to found the jurisdiction of the Court, to order a joinder on the principles I have discussed that it then becomes necessary to see whether in fact joinder should be ordered in the circumstances of a particular case. The Supreme Court per Udoma, J.S.C. (as he then was) in the case of Uku v Okumagba (supra) at p.63 cited with approval the case of The Result (1958) p.174 where three relevant points for consideration for the exercise of the discretion in the matter were laid down. On my above conclusion, it is not necessary to detail them here. If it were, in the instant case, the three questions should have been resolved against the 2nd respondent on the basis of the claim and counter-claim as framed. They do not claim any relief against the appellant, and although, on the amended pleadings, he is a necessary witness, on the principle of Amon’s Case (supra), he is neither a necessary nor a desirable party. On the third question it is enough that his testimony be heard on the matter and he has already been called as a witness. The matter would have been effectually and completely settled between the existing parties. I am satisfied that if the learned Judge had approached this matter from the above principles he would have come to the conclusion that the joinder of the appellant which he himself instigated was improper.
The issue of amendment, again admittedly suggested by the learned trial Judge, raises a question of much more fundamental importance to the administration of justice. The learned Judge himself is recorded as saying as follows at the middle of the cross examination on behalf of the 2nd respondent.
“The question is at variance with the case pleaded by the defendant and I think it is my duty to disallow the question even under cross-examination. I have in mind paragraph 5 (viii) and (ix) of the 2nd Amended Statement of Defence filed on 11th December, 1984. Don’t you agree Mr. Sofunde.”
Then he later continued:
“I think it will be necessary if you want to amend your pleading to bring a formal application and amend the pleading before putting the question in that form. It is important also to stress that in this case there is a counter claim.”
The complaint of the appellant is that the role played by the learned trial Judge in the matter was no longer that of an impartial umpire but that he had converted the proceedings into an inquisitorial one. Appellant submitted that by advising the 2nd respondent to amend her pleading in paragraph 5(viii) and (ix) so as to be in a position to ask a question pertaining to an allegation of fact, an amendment factually different from the allegation in paragraph 5(ix) – (x) of her then existing pleading, the learned Judge had, to the prejudice of the 1st respondent and, if the joinder stays, the appellant, improperly interfered with the proceedings.
I must point out that if my above views on the joinder of the appellant are correct, this question should no longer concern the appellant but the 1st respondent. But it is my view that it touches on a matter so fundamental to the administration of justice in this country that an appellate court ought not to close its eyes to it once it has been raised.
In considering it, I must advise myself that we operate an adversary system in the administration of justice. Under that system the Judge is an impartial umpire and must never be seen to descend into the arena of the conflict or take sides between the parties in litigation. Implicit in this system is the fact that in a civil case the court must allow the parties to decide upon and follow their own procedure, call such evidence in support of their cases as they deem necessary, and have the absolute freedom of testing the veracity and credibility of their adversary’s witnesses under the fire of cross-examination, uninterrupted. This is the necessary inference from all the decided cases. See Fallon v Calvert (1960) 2 Q.B. 201, at p.204; Enock v Zaretsky Bock & Co. (1910) 1 K.B. 327; Ordor v Nwosu (1980) 12 S.C. 103, at p. 110 -111; and Omoregbe v Lawani (1980) 3 -4 S.C. 108, at pp.120-122; Majoroh v. Lassassi (1986) 5 N.W.L.R. 243, at pp.252 – 254. In the case of Jones v National Coal Board (1957) 2 All E.R. 155, p.160 the Court of Appeal in England, per Denning, L.J., allowed an appeal and remitted the case back for retrial on the ground that the trial Judge’s persistent interruption of the cross-examination of counsel for the appellant unwarrantedly robbed him of the well-known weapon of testing the credibility of witnesses for the opposing party. For the same reason, an amendment, if it must come, must not be prompted or suggested by the Judge. The potential injustice in a judge advising a party to amend its pleading can be seen from the standpoint of those decisions wherein an appeal has been allowed on the ground that the evidence given at the trial is at variance with the pleading: see, for examples: Aniemeka Emegokwue v. James Okadigbo (1973) 4 S.C. 113, at p.117; Ogboda v Adelogba: S.C. 31 of 1970 (unreported) of February 2, 1971. So, by the very fact that the trial Judge at the trial advised the respondent to amend her pleading, he had robbed the 1st respondent and the appellant of the advantage of raising the fact that evidence called at the trial was at variance with the pleading. On this fundamental breach of the rule of impartial administration of justice this appeal ought to be allowed and the case remitted for trial de novo before another Judge.
For all I have said above, I allow the appeal of the appellant and set aside the order of Balogun, J., joining the appellant as the 2nd defendant in this suit.
I also remit the case for trial de novo before another Judge.
I assess costs in favour of the appellant and against the 2nd respondent (defendant) in the sum of N350.00. I also assess costs in favour of the 1st respondent (plaintiff) against the 2nd respondent at N200.00.
OWOLABI KOLAWOLE, J.C.A.: I have read in advance the judgment of my learned brother Nnaemeka-Agu, J.C.A., just delivered. I agree that the appeal succeeds. I only wish to add a few comments of my own by way of emphasis.
The plaintiff, Yisa Eyifunmi Oseni, instituted an action against Juliana Ibiyemi Akinbinu at the High Court of Lagos State, Ikeja Judicial Division for the sum of
“NI40,000.00 being money payable by the defendant to the plaintiff as per loan agreement dated 25th November, 1977.
The defendant has refused and/or neglected to pay the said sum of N140,000.00 despite repeated demands.”
Pleadings were filed. In the second amended statement of defence and counter claim certain allegations of fraud, unenforceability of the agreement between the plaintiff and the defendant were made and other allied defence. The defendant’s counter claim is for:-
(i) A declaration that the loan agreement dated 25th November, 1977 and purportedly executed between the plaintiff and the defendant is a falsely procured document;
(ii) An order annulling, cancelling or setting aside, the said Loan Agreement;
(iii) An injunction restraining the plaintiff by himself his servants, agents or his family from seeking to enforce the terms of the aforesaid Loan Agreement dated November 1977.
After Mr. E. O. Sofunde learned counsel for the defendant had filed the amended defence on 11 December 1984, he filed an application pursuant to Order 13 rule 19 of the High Court of Lagos State (Civil Procedure) Rules granting the defendant leave to join one Mr. Akin Ojo solicitor as a co-defendant in the action.
The grounds of the application were that the defendant had made an allegation of fraud and impropriety against Akin Ojo in the conduct of his business as a solicitor and that during the course of the trial on the 28 May 1985 the learned trial judge raised suo motu, the issue as to whether it would be proper to make a pronouncement on the conduct of the said Mr. Akin Ojo without his being made a party.
A third amended statement of defence was then filed in which the original defendant alleged that the document between her and the plaintiff constituted a fraud practised on the defendant by the plaintiff and the co-defendant. Certain allegations of impropriety and/or fraud were also made against Akin Ojo, the solicitor but no relief was claimed from him in the 3rd amended statement of defence and neither was a claim raised against Akin Ojo in the counter claim nor was there any relief claimed against him in the plaintiff’s writ of summons or statement of claim. The plaintiff opposed the application for joinder as well as the co-defendant.
The learned judge in his Ruling said:-
“In this case even if it can be said that the party sought to be joined that is, Mr. Akin Ojo, is not a “necessary party” as no relief whatsoever is sought against him by the plaintiff, on the basis of his writ and statement of claim (which is a simple claim for N140,000 debt alleged to be due from the defendant), I am convinced on the authority of Peenock Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C.1 that it is desirable to join Mr. Akin Ojo as a party herein”.
The party joined has appealed against the order of joinder.
In my judgment the appellant’s brief missed the core of the application before the trial judge. That is – should the appellant have been joined as a co-defendant upon all the materials placed before the learned judge? Is it right, under the Rules, to foist a co-defendant upon an unwilling plaintiff when the original defendant is not claiming contribution or an indemnity from such co-defendant and when he is not claiming that either they together were joint tortfeasors or co-contractors under a contract which is the subject of the main action.
Before I deal with the Rule under which Mr. Sofunde brought the application for joinder (that is Order 13 Rule 19), I believe the paramount Rule is Order 13 rule 4 which provides that –
“All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.”
The question which arises here is this: in a claim by the plaintiff against the defendant for N140,000 is any relief alleged to exist against the appellant? Absolutely no.
If the defendant succeeds in his counter claim against the plaintiff can the judgment make any order against the appellant which has not been asked for? Again the answer is no.
Mr. Sofunde, learned counsel for the 2nd respondent has relied heavily on the case of Peenock Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1 but I am of the view that each case must be decided on its peculiar facts. The facts of the Peenock’s case which are also well known are distinguishable from the facts of this case. So while we must loyally follow the decisions of the Supreme Court we must not do so with our eyes blind folded for as Idigbe JSC said in the Peenock’s case at page 53
“As I stated earlier on, although desirable to add the Government of Rivers State as a party in this action it is not a necessary party because each of the claims in this action can be determined without its participation as a party in these proceedings.”
Again at page 54 Idigbe JSC said –
“It is also on this principle that I have come to the conclusion that where in proceedings (such as the one in hand) it becomes necessary for the Court seised of the matter to rule, even if only incidentally to the main point or points for decision in the claims therein, on the validity of a law of the Federal Government or of the Government of the component States of the Federation, that court ought in exercise of its discretionary powers on the question of joinder, misjoinder or non-joinder of parties, to bring into the proceedings (i.e. as one of the parties thereto) the relevant Government before adjudicating on claims before it”.
I think I ought to consider Order 13 rule 4 in some detail before I come to deal with Order 13 rule 19 and the relevance of the Peenock’s case to the instant case. Primarily under the Rules of Lagos those who may be joined as defendants are those against whom the right to any relief is alleged to exist.
Order 13 rule 19 deals with non-joinder and misjoinder. The principal purpose of that rule, in my judgment, is that no cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties. In other words one has to go back to rule 4 to find out that a cause is not defeated merely because a party who ought to be joined as a defendant is not joined against whom the right to any relief is alleged to exist. The words in rule 19 to wit:
“and the names of any parties whether plaintiffs or defendants, who ought to have been joined or whose presence before the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.”
are governed by rules 1 and 4 of Order 13 to the extent that such parties sought to be joined have against them the right to some relief.
In the Peenock’s case what was involved there was the validity of certain Edict. A court in Anambra State in dealing with a claim for mesne profits was called upon to pronounce upon the validity of a law passed by the Rivers State. In such a case no court can treat the legislation of any state as if it did not exist or pronounce upon its validity in vacuo. It can only do so in a proper case and in a dispute between parties before it. (See Peenock’s case page 19).
It has been stated in Uku & Ors. v. Okumagba & Ors.(1974) 3 S.C. 35 at page 60 by Udoma JSC that the key words in rule 19 part of which I have reproduced above are for the purpose of enabling the court ‘effectually and completely to adjudicate upon and settle all the questions’ in that suit”.
In my judgment although it may be desirable, which I doubt very much, to add Mr. Akin Ojo as a party in this action he is not a necessary party because the claim in this action can be determined without his participation as a party in these proceedings. Whatever fraud or impropriety which the 2nd respondent may level at the doors of Mr. Akin Ojo and if these allegations are proved may be the cause of other proceedings but in the claim for N140,000 by the plaintiff against the defendant the claim can be determined without the presence of the appellant.
The appellant can properly be called as a witness and the learned judge will be perfectly justified in commenting on the conduct of the appellant as a witness in the proceedings. The learned judge does not have to make the appellant a party. In my judgment the appellant Akin Ojo, was right when he said during argument that –
“The court can make any decision on my conduct on the pleadings and any evidence adduced as I have in fact been a witness and it will be binding without me being joined as a party.”
In my judgment the case of Peenock upon which the learned judge relied in making the order of joinder is distinguishable from the instant case. The validity of the Edict of one State which cuts across another State was in question. The Loan Agreement in question here was a private document between the parties and it is unnecessary to add the appellant as a party before “effectually and completely to adjudicate” upon and settle the question involved in the cause. It was necessary in the Peenock’s case to add the Rivers State Government as a party to enable the Anambra State High Court to pronounce on the validity of the Rivers State Government Edict in a dispute in which the Rivers State Government was a party. It is unnecessary to add the appellant in this case as a party to enable the Court to pronounce on the validity of the Loan Agreement between the plaintiff and the 2nd respondent. That is the distinguishing feature between the Peenock’s case and the instant case. The appellant was not a party to the dispute in the loan Agreement as one would say the Rivers State Government was in the Peenock case.
The case of Amon v. Raphael Tuck & Sons Ltd. (1956) 1 All E.R. 273 upon which learned counsel for the second respondent further relied is also distinguishable from the case in hand. The decision in that case is that:”
The test whether under R.S.C. Order 16 rule 11, the court had jurisdiction to add as defendant a person whom the plaintiff did not wish to sue was whether the order for which the plaintiff was asking in the action might directly affect the intervener (i.e. the person proposed to be added as a party) by curtailing the enjoyment of his legal rights, for the only reason which might render the presence of a party before the court to be “necessary” to enable the court to adjudicate completely ….. was that he should be bound by the result of the proceedings.” In that case D was added as defendant because the defendants were shown prima facie to be bound to him in contract to manufacture the STIXIT pen, which obligation constituted a legal right of D’s the enjoyment of which might be curtailed by injunction asked by the plaintiff in that action.”
That is not the case here.
In my opinion the appeal against the order of amendment is more fundamental. The age long rule is that the judge must allow the parties to the contest to fight out their case. Once he enters the arena of the contest he ceases to be an independent umpire. It is true that the Rules of Court permit the amendment of proceedings at any stage but it is not the duty of the court to force upon parties amendments for which they do not ask. As Fry L.J. said –
“this is all more important when as in the instant case, the amendment took on the character of a completely different claim.”
(See Cropper v. Smith (1883) 26 Ch.D.700 at page 715).
During the cross-examination of the appellant by Learned counsel Mr. Sofunde, the learned judge ruled that the question asked was at variance with the case pleaded and then went on –
“I think it will be necessary if you want to amend your pleading to bring a formal application and amend the pleading before putting the question in that form”.
The matter was then adjourned and on the next date of adjournment, as the learned judge had advised, Mr. Sofunde brought his application to add Mr. Akin Ojo as a co-defendant and to amend the statement of defence and counter claim. The proposed 3rd amended statement of defence substituted a fresh allegation for what was pleaded in paragraphs 5(ix) – (x). I do not entertain any doubt that it is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties” …. (See G.L. Baker Ltd. v. Medway Building & Supplies Ltd. (1958) 3 All E.R.540, page 546.)
However in view of the order which I propose to make, it is my view that only a party to a proceedings can oppose such proceedings from being amended. Until the appellant properly becomes a party in the suit there is no question in controversy between him and the 2nd respondent. It is clear to me however that whatever order I make, I must take cognisance of the fact that the learned judge has entered into the arena of the contest. It will therefore not be in the interest of justice that he should continue with the hearing of the suit.
From all that I have stated earlier the appeal against the order of joinder of the appellant is allowed, the claim in the action can be determined without the participation of the appellant as a party. The result is that I set aside the order of Balogun J. adding the appellant as a party. The case is remitted to the lower court for hearing before another judge.
I award N350 costs in favour of the appellant and N250 costs in favour of the first respondent.
I. L. KUTIGI, J.C.A. (Dissenting): This is an interlocutory appeal. I should therefore not delve into issues that would appear to have the effect of prejudging the substantive suit or which would fetter the exercise of a discretion by the trial judge at the hearing.
The 1st respondent (who is the plaintiff) sued the 2nd respondent (who is the defendant) for a debt of N140.000.00. The 2nd respondent in her Statement of Defence and Counter-Claim denied owing the 1st respondent the said sum. Her explanation was that her signature was obtained on the Loan Agreement by the fraud of the 1st respondent and her solicitor the appellant herein. In the course of trial the appellant gave evidence on behalf of the 1st respondent denying the fraud. He was subjected to a very rigorous cross-examination on behalf of the 2nd respondent. In the process of being cross-examined the learned trial judge queried the propriety of continuing the trial without making the appellant a party having regard to the allegation of fraud made against him. The questions put to the appellant about the fraud were also disallowed by the judge because the pleaded particulars of fraud were at variance with the questions. The 2nd respondent then made an application to the court for leave to amend the Statement of Defence and Counter Claim to plead “fresh” particulars of fraud which had been disallowed and for leave to join the appellant as co-defendant. The application was duly granted.
The appellant has now appealed to this Court complaining about the amendment and joinder. Only three grounds of appeal were filed. Without stating the particulars they read as follows:
Grounds of Appeal:
1. The learned trial judge erred in law by granting an order for the joinder of the appellant as Co-defendant when there is no relief sought against him by either the plaintiff or the defendant and when all the matters in dispute in the matter can be effectively and completely determined and adjudicated upon without the Appellant being joined as a party.
2. The learned trial judge misdirected himself in holding that it is desirable to grant an order for the joinder of the Appellant because of any pronouncement even though irrelevant to the proper determination of the case, can be made without joining the Appellant.
3. The order for the amendment of the 2nd Amended Statement of Defence dated 10th day of December 1984 granted by the learned trial judge in this suit is not in the interest of fair litigation.
It appears to me from the grounds of appeal above that the two main issues for determination in this appeal are:-
(a) Whether the appellant is a necessary party having regard to the issues formulated between the 1st and 2nd respondents; and
(b) Whether the appellant would be prejudiced by the order granting the amendment.
Joinder of the Appellant as a Co-Defendant
Mr. Akin Ojo the appellant appeared for himself in this appeal. He submitted in his brief that the application for joinder ought to have been refused because as the learned trial judge rightly observed in his ruling, no relief whatsoever is claimed against him by the plaintiff. It was also submitted that the joinder was against the wishes of both the plaintiff (1st respondent) and the appellant. He said the matter in dispute, a sum the claim of N140,000.00 can be effectively and completely determined without the joinder. That the appellant and the defendant have no common interest at all. The following cases were cited in support:
AMON v. RAPHAEL TUCK & SONS LTD. (1956) 1 Q.B. 357; HOOD BARRS v. FRAMPTON KINGHT & CLAYTON (1924) W.N. 287;
LAJUMOKE v. DOHERTY (1969) NMLR 292;
OKAFOR & ORS v. NNAIFE & ORS (1973) NMLR 245.
Mr. O. Ojo for the 1st respondent supported appellant’s submissions.
Mr. Sofunde learned counsel for the 2nd respondent in reply submitted that because the court is required to determine the fraud or lack of it of the appellant as a necessary issue before the defence of the 2nd respondent can be found to have been established or not, it is desirable to join the appellant as a party so as to avoid any decision being taken behind his back without hearing him. He referred to the case of PEENOK INVESTMENT LTD. v. HOTEL PRESIDENTIAL LTD. (1982) 12 S.C. at 43-51 per ESO J.S.C.
Counsel further submitted that the fact that there is no claim by the plaintiff (1st respondent) against the appellant makes no difference if it is otherwise necessary or desirable to join the appellant as a party. The case of AMON vs. RAPHAEL TUCK & SONS LTD. (1956) 1 Q.B. 357 at 386 per Devlin J. was cited in support. He said in PEENOK’S CASE (supra), there was no claim against the Rivers State Government which the Supreme Court held ought to have been joined. It was submitted that the appellant was joined as a necessary party to the action so that he would be bound by the result of the action since as a mere witness he may not be bound by any decision.
Dealing with the issue of joinder the learned trial judge had this to say at page 4 of his ruling:-
“The next question is that of joinder. In this case even if it can be said that the party sought to be joined, that is, Mr. Akin Ojo, is not a “necessary party” as no relief whatsoever is sought against him by the plaintiff, on the basis of his writ and statement of Claim (which is a simple claim for N140,000.00 debt alleged to be due from the defendant), I am convinced on the authority of PEENOK INVESTMENT LTD. vs. HOTEL PRESIDENTIAL LTD. (1982) 12 S.C.1 that it is desirable to join Mr. Akin Ojo as a party herein. It is for those reasons only that I exercise my discretion to grant the orders sought on this application. I order accordingly. As the matter of joinder was first raised by me suo motu on 28/5/85 (when I infact referred to PEENOK’S CASE) I do not think I ought to make any award of costs in this application. I must emphasize for avoidance of doubt that the “added party” is being joined as additional to both the claim of the Plaintiff by original action and the counter-claim.”
My first observation is that while the case was in progress and a witness was being cross-examined, it was no business of the court to interrupt proceedings by offering unsolicited and gratuitous advice to the parties as to who should or should not be a party to the case. The judge being an umpire should not descend to the arena himself. I think it was wrong for the learned trial judge to have advised that the appellant be joined as a co-defendant. But having said that, was the joinder necessary or proper? Clearly the Supreme Court in PEENOK’S case (supra) which the learned trial judge relied upon, emphasized that where in proceedings it becomes necessary for the court seized of the matter to rule even if only incidentally to the main point or points for decision in the claim therein that court ought in exercise of its discretion of any powers on the question of joinder, misjoinder or non-joinder of parties, to bring into the proceedings (i.e. as one of the parties thereto) the relevant party before adjudicating on the claims before it. I am inclined to agree with the learned trial judge that on this authority it would not be proper for him to determine in this action, even if only as an incidental matter, the questions raised in the 2nd Amended Statement of Claim and Counter-claim, the allegations made against the appellant by the 2nd respondent without joining the appellant as a party. I shall set out these allegations which are contained in para. 5 of the said Amended Statement of Defence and Counter-claim soon. While still on this issue it is instructive to refer to the case of AMON v. RAPHAEL TUCK & SONS LTD. (supra) where Devlin J. stated at p.386 thus:-
“Likewise a defendant who seeks to join another defendant does not inevitably have to show that the new defendant will be directly affected by an order in the action as it is constituted. He may succeed if he can show that he cannot effectually set up a defence which he desires to set up unless the new defendant is joined with it or unless the order made binds the “new defendant.” (Underlining is mine)
Mr. Sofunde has submitted that the court is required to determine the fraud or lack of the fraud of the appellant as necessary issue before the defence of the 2nd respondent/defendant can be found to have been established or not. I agree with him having regard to the allegations contained in para. 5 of the 2nd Amended Statement of Defence and Counter-claim thereof. On the authorities therefore I agree with the learned trial judge that the appellant is a necessary party to the suit and that the joinder was proper. The allegations against the appellant as contained in para. 5 of the said Amended Statement of Defence and Counter-claim read thus:-
“5. The Defendant denies paragraph 6 of the plaintiff’s Statement of Claim and avers that the document constituted a fraud practiced on the Defendant by the Plaintiff. The Defendant will at the trial of this action rely on all legal and equitable defences, and doctrines including fraud, non est factum, unenforceability and illegality.
Particulars of Fraud, Non-Est Factum and Unenforceability
(i) The Defendant is not owing the Plaintiff the sum of N140,000.00 (one hundred and forty thousand Naira) nor any money at all.
(ii) The alleged loan was a ruse and no money was lent to her by the Plaintiff.
(iii) Neither the Plaintiff nor his family is a Money Lender under the Money- Lender’s Ordinance or Law.
(iv) No consideration passed from the Defendant to the Plaintiff for the grant of the alleged loan in spite of Exhibit A attached to the Statement of Claim.
(v) The alleged agreement stated in paragraph 6 by the Plaintiff and attached as Exhibit A to the Statement of Claim is a falsely procured document, procured by a cover-up to defraud the Defendant.
(vi) That by the Deed of Conveyance dated 25th November, 1977, and registered as No. 19 at page 19 in Volume 1665 of the Register (of Deeds) at the Lands Register in the Office at Lagos, the Plaintiff and his family sold to the Defendant for the sum of N20,000.00 (Twenty thousand Naira) a plot of land at Itapami Onigbongbo Village, and in the aforesaid deed indemnified the Defendant against (a) possible claimant(s)
of the said land sold to the Defendant.
(vii) That by another Deed of Conveyance dated the 25th November, 1977 and registered as No. 18 at Page 18 in Volume 1665 of the Register (of Deeds) at the Lands Registry in the Office at the Lagos the Plaintiff and his family sold yet another plot of land to the Defendant at Itapami, Onigbongbo Village, Lagos State for the sum of N50,000.00 (fifty thousand Naira).
(viii) That the Deeds of Conveyance registered as No. 18 at page 18 in Volume 1665 and as No. 19 at page 19 in Volume 1665 both the same date as Exhibit A attached to the Statement of Claim and both Deeds as well as Exhibit A were prepared by the Plaintiff’s Solicitor Mr. Akin Ojo.
(ix) That the said Mr. Akin Ojo presented both Deeds of Conveyance Nos. 18 and 19 at Pages 18 and 19 in Volume 1665 of the (Register of Deeds at the) Lands Registry and Exhibit A to the Defendant whilst representing to her at the same time that Exhibit A was the same document as the aforesaid Deeds Nos. 18 and 19 at Pages 18 and 19 in Volume 1665 of the (Register of Deeds at the) Lands Registry.
(x) That the Defendant being an illiterate within the meaning of the Illiterates Protection Law believed the afore-said representations of Mr. Akin Ojo, Legal Practitioner, the Plaintiff’s Solicitor in Exhibit A and in the Deeds of Conveyances Nos. 18 & 19 at Pages 18 and 19 of Volume 1665 of (the Register of Deeds) kept in Lagos.
(xi) That the said Mr. Akin Ojo, Legal Practitioner, acted for both the Plaintiff herein as Vendor and the Defendant herein as Purchaser in the above transactions and the Defendant will inter alia rely on a letter dated 2nd December 1977 written by Mr. Akin Ojo to the Defendant and demanding the sum of N2,071.40 payable to him as professional fees and incidental expenses in respect of these transactions.”
I do not think there is any way out without making the appellant a party to the action.
I now proceed to treat the second issue in this appeal.
Amendment of the Statement of Defence and Counter-Claim:
The appellant submitted that the learned trial judge by advising counsel for the defendant to amend his pleadings was no longer playing the role of an umpire in the matter but was being inquisitorial. He said the amendment ought to have been disallowed in the interest of fair litigation because it completely changed the nature of the defendant’s case. That as a general rule no amendment should be allowed at the trial which would enable a party to set up an entirely new case or change completely the nature of his case. The cases of CROPPER v. SMITH 26 CH. 700; NEWBY v. SHARPE (1878) 8 CH.D. 39; BELL v. LEVER BROS. LTD. (1932) A.C.161; NOAD v. MURROW (1879) 40 L.T. 100 were cited in support. Mr. O. Ojo for the 1st respondent once again associated himself with the submissions of the appellant. Mr. Sofunde in reply submitted that the nature of the amendment does not materially alter the nature of the allegation made against the appellant and that his evidence in chief has amply taken care of the amendment. It was further submitted that in so far as the appellant was not a party before the order of amendment was made, he cannot be prejudiced by the amendment. That upon the order of joinder, the appellant is required to meet the case as contained in the Amended Statement of Defence and Counter-Claim and is entitled to recall the witnesses for cross-examination and to testify on his own behalf.
I entirely agree with the above submissions of Mr. Sofunde. But I have to repeat here again that it is no business of the learned trial judge to offer any advice suo motu to counsel in a case before him on how to conduct his case. If a judge does that he is thereby taking sides and has become a contestant rather than an umpire. I do not however share the view of the appellant that the amendment changed the nature of the claim. It did not. The guiding principle generally is that amendments of pleadings ought to be made
“for the purposes of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings. ”
(See per Jenkins L.J. in G.L. BAKER LTD. v. MEDWAY BUILDINGS & SUPPLIES LTD. (1958) 1 W.L.R. 1216 at 1231. Also in TYLBESLEY v. HARPER 10 CH.D. 396 at 397 Bramwell L.J. stated as follows:-
“My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide or that by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise.”
If the principles of law stated above were rightly applied to the facts of this case, the only conclusion would be that the application for amendment was properly made and granted. After all there are only two ways in which pleadings may be amended. It is either before evidence is called or after evidence has been called in order to bring the pleadings in line with the evidence so led. We are here concerned with the first way.
On the whole this appeal must fail. It is hereby dismissed with costs of two hundred Naira (N200.00) against the appellant.
Appeal dismissed.
Appearances
Akin Ojo – Appellant in personFor Appellant
AND
O. Ojo for the 1st Respondent
E. O. Sofunde, with M. D. Belgore for the 2nd RespondentFor Respondent
