Chisco Samuel Trading Company Limited V. Vincent Iloerike & Ors (2016)
LawGlobal-Hub Lead Judgment Report
UZO I. NDUKWE-ANYANWU, J.C.A.
This is an appeal against the Ruling of the Federal High Court holden at Lagos State delivered on 13th day of October, 2009 by Hon. Justice J. E. Shakarho.
The facts as briefly stated:
By a writ of summon together with statement of claim the 1st – 16th Respondents as Plaintiffs claimed against the 1st – 7th Defendant now as follows:
“a) A DECLARATION that the 2nd to 16th defendants are not elected executives of Association of Progressive Traders (APT) Lagos having not been duly elected and therefore cannot act, perform or carry out any duty on behalf of the Association as executives.
b) A DECLARATION that is unlawful for a trustee of the Association of Progressive Traders of Nigeria to act as elected executive member except as provided for in the Association’s Constitution.
c) AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd to 6th defendants from presenting and parading themselves as the elected executives of Association of Progressive Traders (APT) Lagos.
d) AN ORDER of the Honourable Court allowing the Plaintiffs to conduct
1
election into the executives of the Association of Progressive Traders.
e) AN ORDER of this Honourable Court restraining the 2nd to 6th defendants from preventing and/or obstructing the Plaintiffs from conducting election into the executives of Association of Progressive Traders
f) AN ORDER of this Honourable Court compelling the 2nd to 6th defendants to either allow the members of Association of Progressive Traders Lagos who had made some deposits as payments for shops at APT Plaza to complete their parents and have their shops allotted to them,
OR ALTERNATIVELY
Refund to all of them their monies as money had and received for a failed consideration
g) AN ORDER of this Honourable Court compelling the 2nd to 6th defendants to account to the Plaintiff for all monies contributed for the building of shops at APT Plaza, sale of shops kiosks, empty land spaces and lease of land to celtel (now zain)”
At the time of commencing the suit, the 1st -16th Respondent filed a motion for interim injunction as well as a motion on notice for interlocutory injunction. The motion ex parte was taken and the Court granted the following orders:
2
1. An order restraining the 1st-7th Defendants/2nd set of Respondent from selling, alienating or dealing with the property/assets of the 1st defendants.
2. An order freezing the accounts of the 1st Defendants,”
On the 30th of March 2009, the Court visited the locus in quo and discovered that its earlier order has been violated and subsequently made the following orders:
“1. All work shall stop in Building A immediately until the owner by his counsel comes to Court in writing to process his ownership.
2. The goods in Building B can be removed for sale but no further construction work like the finishing of painting, toilet or other work must continue.
When all the goods found in Building B are removed no other goods shall application are heard and determined.
3. That this suit stand adjourned to 29/04/09 for hearing,”
Consequent upon the order made on 30th March, 2009 the Appellant who was not a party to the original suit but felt aggrieved by the order, applied vide a Motion on Notice dated 23rd April, 2009 to be joined in the suit and for the order of 30th March, 2009 to be set aside.
The 1st -16th Respondent
3
opposed the Application and filed a counter affidavit dated 2nd June, 2009.
The trial judge in his ruling granted the Appellant’s prayer for joinder but refused to set aside the order of 30th March, 2009.
The Appellant being dissatisfied with the ruling has brought this appeal.
The original Notice of Appeal was filed on 20th November, 2013 but was further amended by order of this Court on the 12th February 2014 Containing two(2) grounds of appeal.
In accordance with the Rules of Court, parties have filed their respective brief of arguments.
The amended Appellant’s brief of argument was filed on 20th November, 2013 but deemed properly filed and served on 12th February 2014. The 1st – 16th Respondents’ brief was filed on 7/12/13 and deemed properly filed and served on 12th February, 2014, while the 17th – 26th Respondent did not file any brief.
Consequently, this Court granted the Appellant’s application that the appeal be heard upon the brief of the Appellant and the 1st – 16th Respondents on 12th February, 2014 and the Appeal was therefore fixed for hearing. The appeal was heard on 3rd May, 2016.
In his brief, the Appellant
4
formulated two (2) issues for determination viz:-
“i. Whether the learned trial judge was right in refusing the prayer to vacate its order of the 30th of March, 2009 having regard to the fact that the Appellant was not a party as at the 30th of March, 2009 when the order was made.
ii. Whether the refusal of the learned trial Judge to vacate its order of the 30th of March, 2009 does not amount to improper exercise of judicial discretion and breach of fair hearing as guaranteed by Section 35(1) of the 1999 Constitution of the Federal Republic of Nigeria.”
The Respondent on the other hand formulated a sole issue for determination viz:
“Whether the Court below properly exercised its discretion in joining the Appellant/Intervener but refusing to set aside its order made on the 30th March, 2009.”
Learned counsel for the Appellant submitted that it is trite that a Court cannot make an order against a party not before it. He relied on the case of NABARUWA v. OFFODILE (2006) ALL FWLR (Pt.294) 505. According to counsel as at 30th March 2009 when the trial Court made the order stopping work on the Appellant’s building was made, the Appellant
5
was not a party to the suit. He further contended that the Appellant only became a party on the 13th October 2009. Hence the trial Court was wrong when he refused to vacate the order dated 30th March 2009 made against the Appellant.
He also contended that by applying the literal interpretation to the order of the trial judge which is hereunder reproduced for ease of reference:
“All work shall stop in building “A” immediately until the owner by his counsel comes to Court in writing to process his ownership.”
The above order was not meant to last until the conclusion of the substantive case. Thus the trial Court violated its own order when he refused to vacate the said order and ruled that the issue of ownership shall be determined at the end of the substantive trial. He also submitted that the trial Court was wrong when it suo motu raised the issue of ownership to the Appellant’s property when the issue of the ownership of the Appellant’s property was never submitted for the Court to adjudicate on.
On issue 2, counsel submitted that the order made by the learned trial Judge on 30th March, 2009 against the Appellant is a gross violation of
6
the Appellant’s right to fair hearing guaranteed under Section 36 of the 1999 Constitution as the Appellant was not served with any of the processes nor was he given an opportunity to be heard. He relied on the case of MARK v. EZE (2004) ALL FWLR (PT 200) 1455; OBIENU v. OKEKE (2006) ALL FWLR (Pt.340) 1166; HAASTRUP LINES (W.A) LTD v. WICHE (2006) ALL FWLR (PT.304) 483.
Learned counsel for the respondent on the other hand submitted that the trial judge was right in refusing the order setting aside its order made on the 30th March, 2009 and holding that the issue of ownership of the property which the Appellant claims belong to him could only be resolved at the end of the substantive trial.
According to counsel, the approach adopted by the trial judge is consistent with the position of the law that a substantive issue should not be determined at the interlocutory stage. According to counsel the Appellant’s contention, in his affidavit in support of the application for setting aside, that the property in question belongs to him has been denied by the Respondent in his counter- affidavit and having joined issue on the ownership of the property, it would
7
be wrong for the trial judge to set aside the earlier order dated 30th March 2009 as that will amount to holding that the property indeed belonged to the Appellant thereby, resolving the issue of ownership of the property at the interlocutory stage.
On the issue on fair hearing, counsel submitted that the Appellant’s argument on the said issue will not avail the Appellant as the Appellant did not appeal against the ruling of 30th March 2009 but that of 13th October 2009. The Appellant in this appeal applied to the Court below to be joined as an intervener and prayed for the following orders.
“(a) An order granting leave to the Applicant/Intervener to be joined as Intervener in this suit”
(b) An order setting aside, vacating and/or discharging the order of this honourable Court made on the 30th March, 2009 stopping work in the Intervener’s 2 storey building situate at APT Complex, International Trade Fair Complex, Lagos which said property is described as building ‘A’ in the said order of Court.
(c) Any other order(s) as this honourable Court may deem fit to make in the circumstances.”
The first order prayed for was granted thereby
8
joined as an intervener in the suit below. Respondents urged the Court to dismiss this appeal.
It is trite law that parties to a suit is important so as to foist jurisdiction on the Court. Ataguba & Co. v. Gura (Nig.) Ltd (2005) All FWLR (Pt.265) page 1219, (2005) 2 SCNJ page 139.
“The term parties includes not only those, named in the record of proceedings but also those who had direct interest in the subject matter of the dispute and had an opportunity to attend the proceedings and to join as parties in the suit but chose not to do so and were content to stand by and see the battle in which their interest is directly in issue fought by somebody else or let witnesses testify as to their interest In the subject matter of the action. Ndulue v. Ibezim (2002) 12 NWLR Pt.780 page 139.
Parties to an action have been classified into three namely (a) proper parties, (b) desirable parties and (c) necessary parties, Proper parties are those who, though not interested in the Plaintiffs claims are made parties, for some reasons, and desirable parties are those who have an interest on who may be affected by the result. Dapialong v. Lalong (2007)
9
5 NWLR Pt.1026 page 199, Green v. Green (1989) 3 NWLR Pt.61 page 48.”
The Appellant falls within the group of desirable parties. The Appellant has joined issues in his affidavit about the house, a part of the res in issue.
In the Appellant’s motion seeking to be joined as intervener, he also prayed for the order of 30th March, 2009 to be vacated. This the learned trial judge refused and held:
“I have read all the processes filed by the parties in respect of this application. The contention of the applicant/intervener in the main is that it owns the property or building marked Building A.
I have realized that a simple case of interpretation has taken a long and persistent drawn battle. The parties are seeking to take orders of this Court in peace meal. I am aware that any pronouncement about the ownership of the property may put an end to any issue concerning ownership. I do not intend to dwell on the ownership of the property at this stage. I would rather leave the issue as it is now without making any pronouncement on the ownership of the property.
The issue of ownership shall be determined at the end of the substantive trial.
10
Parties are urged to accelerate the hearing of this case in order to give all the parties a permanent respite.”
The learned Judge in his wisdom refused this prayer and stated that the determination of the ownership would be made at the end of proceedings i.e. judgment. The proceeding is still at interlocutory stages and it would be out of place to decide substantive issues at this stage.
F.B.N Plc v. Akparabong Community Bank Ltd. & Anor., (2006) l NWLR Pt.962 page 438. The Courts have held that it is very wrong for a Court to decide in limine, at the interlocutory stage issues to be determined in the substantive suit. In the above case the Court held:
“In an interlocutory application or appeal, the Court must avoid making any observation in the ruling or judgment which might appear to prejudge the main issues in the proceedings relative to the interlocutory application and which may have the effect of affecting the merits of the substantive case or remove the substratum thereof”
See also Pharmatek Ind. Ltd. v. Ojo (1994) 7 NWLR Pt.359 page 751 where this Court held per Thomas JCA that:
“Judges while making interlocutory rulings
11
must desist from making any finding which may prejudice the substantive case. Kotoye v. Saraki (1994) 7 NWLR Pt.357 page 414.”
From the above I make bold to hold that the learned trial judge was right when he refused to grant the Appellant the order to determine the ownership of House A, the Res.
The Appeal is for the above reasons unmeritorious and therefore dismissed.
N50,000.00 cost to the Respondent.
Other Citations: (2016)LCN/8653(CA)
