In Re: Ndic & Anor. V. Mr. J. Lawal & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
ADAMU, J.C.A.
In its motion on notice dated and filed on 21/6/05, the applicant (the NDIC) applied to this court seeking for the following relief:
“1. An order granting leave to the applicant to join as a co-respondent in this appeal.
- An order granting leave to the applicant to respond to this appeal.
- An order joining the applicant as co-respondent to this appeal.
- And for such further or other orders as this Honourable Court may deem fit to make in the circumstance of this application.”
When moving the application, the learned counsel for the applicant O. C. Opara (Mrs.) stated that the application is brought pursuant to section 6(b)(a) and 243(a) of the Constitution of the Federal Republic of Nigeria, 1999; Order 3 rule 6(1) of the Court of Appeal Rules, 2002, and the inherent jurisdiction of this Honourable Court. The application is also said to be supported by a 7 paragraph affidavit with 8 exhibits. The applicant relies on all the paragraphs particularly paragraph 4-6 thereof which disclose inter alia the applicant’s interest in the present appeal and the need to join it as a co-respondent in the interest of justice. It is further pointed out by the learned counsel that in its capacity as the receiver/liquidator of the Alpha Merchant Bank it applied for the recovery of debt against the 2nd respondent at the Failed Bank Tribunal. Lagos where a consent judgment based on terms of settlement was given or entered by the said Tribunal on 18/3/98. As a result of the consent judgment and the abolition of the Failed Bank Tribunal, the applicant applied to the Federal High Court for leave to execute the said judgment and the leave was granted on 23/01/02. Upon this leave the applicant acquired and assigned to a 3rd party a 400 room Hotel project located at Plot A, Victoria Island Shopping Complex, Ahmadu Bello Way, Victoria Island, Lagos. It is further stated by the applicant’s counsel that an appeal against the leave granted to the applicant by the 3rd respondent was dismissed by this court in appeal No. CA/L/224/2004. It is submitted that the law is settled that a party who has interest in the subject – matter in any suit or appeal may apply to be joined – see O.3 R 6(1) of the Court of Appeal Rules 2002; Yakubu v. Governor of Kogi State (1995) 8 NWLR (Pt. 414) 386; Iyimoga v. Gov. Plateau State (1994) 8 NWLR (Pt. 360) 73 cited in support of the above submission. It is finally stated by the applicant counsel that the respondent did of contradict any of the facts deposed to in the supporting affidavit. This court is therefore urged to grant the application.
The appellants/respondents opposed the application. The learned senior counsel Professor Kasunmu (SAN) referred us to their counter affidavit in opposition filed on 9/2/06 containing 12 paragraphs. In his submission before us, the learned counsel for the appellants/respondents stated the test to be applied by the court in an application for joinder of a party. The test is whether or not the applicant is a necessary party to the just determination of the present appeal. It is pointed out that the property the subject matter of the present appeal was brought in the name of the 3rd respondent and the issue before the lower court was as to who owned the said property. It is also pointed out that the applicant’s application to be joined at the lower court was refused and it has not appealed against the refusal. It is also the contention of the appellants/respondents that since the property in dispute was transferred or assigned by the applicant to a 3rd party (as admitted by the said applicant) it is the 3rd party who is now an interested party who can be joined in the present appeal rather than the applicant. It is also said that the applicant has nothing to do or to contribute to the present appeal. This court is finally urged by the appellants/respondents learned counsel to refuse and dismiss the application.
The 2nd set of respondents who also oppose the application, filed their counter-affidavit on 27/2/06. It contains six (6) paragraphs.
In his submission before us, their learned counsel Mr. G. O. Bello adopted or associated himself with the submissions of the learned senior counsel for the appellants/respondents. He also added that the applicants who in law has a duty to show its interest in the subject matter of the appeal and that it will be directly affected by the outcome of the present appeal has failed to do so as the subject-matter of the appeal has left its hand. – See In Re: Muhammed Sani Abacha (2000) 5 NWLR (Pt. 655) 50 at 66-67 cited in support of the above submission. We are finally urged by learned counsel for the 2nd set of respondents, to dismiss the application.
Mrs. O. C. Opara for the applicant on her second chance to address us reiterated or re-emphasised that the applicant still has an interest in the subject matter of the appeal.
On the above submissions of all the learned counsel for the parties involved in the present application, the first point to note is the common ground accepted by all the learned counsel that the determining factor of the application is the existence or otherwise of the applicants interest in the subject matter of the substantive appeal. This consensus of the counsel provides me with the narrowed down issue or point to be resolved by this court in the application.
From the supporting affidavit which I have highlighted above the facts of the case can be stated as follows:
The applicant as a receiver or liquidator of failed banks applied for the recovery of debts on behalf of Alpha Merchant Bank Plc which was then insolvent and under liquidation against the 2nd respondent and others. (See exhibit ‘A’). As a result of the applicants applications, the parties entered and executed a term of settlement on 10/2/99 which was made the judgment of the Tribunal on 18/3/98. – See paragraph 3(III) of the supporting affidavit and exhibits ‘B’ and ‘C’. After the abolition of the Failed Bank Tribunals, the applicant applied to the Federal High Court, Lagos (the trial court) which granted it leave to execute the judgment of the erstwhile Tribunal on 23/1/2002 (see exhibit ‘E’). A renewal order of this leave was made and enrolled on 19/12/03 (as per exhibit ‘F). The applicant then assigned the property (the subject-matter of the appeal) to a third party (whose name is not mentioned in the application).
The 2nd set of respondent appealed against the trial court order of 19/12/03 to this court which dismissed the appeal and affirmed the order of the trial court on 23/5/05 – see exhibit ‘G’. After the institutions of the present suit at the trial court by the appellants/respondents, the applicant applied for leave to be joined as an interested party but its application was refused on 21/11/97. It then brought the present application in this court which is dated and filed on 21/6/05.
My next task is to consider the principles for the grant of an application for joinder and to apply it to the above facts of the present application. Under the said principles it is necessary to distinguish between a “proper party” or a “desirable party” on the one hand and a “necessary party” on the other.
The rationale and main reason for making a person or an applicant a party to an action or proceeding is so that he will be bound by the result of the action or proceeding and all questions arising in the proceedings can be settled once and for all. There must be a question in the proceedings which cannot be effectually and completely settled unless such a person or applicant is made a party. It is equally necessary to join a party whose interest is involved or is in issue in the action. – See Green v. Green (1987) 7 SCNJ 255 at 267-268; (1987) 3 NWLR (Pt. 61) 480; Amon v. Rapheal Tuck & Sons Limited (1956) 1QBD 357 at 380; Lajumoke v. Doherty (1969) 1 NMLR 281; Peenok Investments Ltd. v. Hotel Presidential Limited (1983) 4 NCLR 122; Yakubu v. Governor of Kogi State (1995) 8 NWLR (Pt. 414) 386; Onyenucheya v. Military Administrator, Imo State (1997) 1 NWLR (Pt. 482) 429 at 449-450; and Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567) 546 at 555.
The test applied by the court in determining whether or not to join a party to a suit (or appeal) is whether the person to be joined has sufficient interest in the matter or the subject-matter and his interest will be irreparably prejudiced if an order joining him in the suit or appeal is not made.
– See Uku v. Okumagba (1974) 3 SC 35; Oduola v. Coker (1981) 5 SC 197; and Rufai v. Otu (1998) 12 NWLR (Pt. 578) 423 at 437.
In applying the above principles to the present case, the questions to be asked are as follows:
(1) What is the interest of the applicant in the present appeal or in the subject matter of the appeal.
(2) Is the applicant a necessary party to the present appeal which cannot be effectually or completely settled unless he is made a party’?
(3) Will the appellant be bound by the ultimate decision of this court in the present appeal?
(4) Is there any question in the present appeal which cannot be settled unless the applicant is made a party?
On the first of the above posers, it is clear from the affidavit evidence that the subject-matter of the appellants suit is the landed property of a 400 Room Hotel at Plot A, Victoria Island Layout, “Shopping Complex” Ahmadu Bello Way, Victoria Island Lagos (described in paragraph 3(v) of the supporting affidavit). The applicant had acquired the said property as a result of the consent judgment entered in its favour by the Failed Bank Tribunal, Lagos which was ratified and renewed by the trial court. The respondents appeal against the ratification was thrown out and dismissed by this court in Appeal No. CA/L/224/04 on 23/5/05 (just last year). It is to be noted that the present appeal was filed since in the year 2001 and the applicant did not make this application until last year (i.e. 21/6/05).
Moreover the said applicant is said to have assigned all his rights, title or interest in the subject-matter to a third party whose name and identity are not given in the supporting affidavit. See paragraph 3(vii) thereof. The cardinal point to be considered under this poser is as rightly pointed out by the respondents learned counsel that the applicant has no longer any interest in the subject matter which it has assigned to a third party. I agree entirely with this submission to which the applicant’s counsel has no reply in her second chance of the hearing of this application. It is a settled principle in land disputes (as in the present case) that where a party has sold, assigned or otherwise alienated his interest in the land in dispute to a third party his proprietory interest in the said land becomes completely extinguished and he cannot pretend to have a subsisting interest worthy of protection by the mere fact that he was the earst while grantor (or assignor) of the land to a third party. Thus, he is regarded by such a demise as neither a proper or necessary party or person to the final determination of the suit as constituted between other persons or parties even though the suit or proceeding involves the subject matter of the grant or alienation made by him – See Amuda v. Ajobo (1995) 7 NWLR (Pt. 406) 170. On the above principle, I agree with the respondents counsel that the only person or party who now has an interest in the subject-matter of this appeal and who can therefore properly apply to be joined is the 3rd party (the assignee) whose names and identities are not disclosed by the said applicant in the supporting affidavit.
Based on my above answer to the 1st poser, the 2nd question should also follow suit and be resolved accordingly as it is tied to the 1st question.
On the 3rd question, it is my view that the applicant will not be bound by the ultimate decision of this court in the present appeal.
This is because in the earliest appeal by all the respondents against him in this court in Appeal No. CA/L/224/04, this court has confirmed the title of the property in question to the said applicant by affirming the order of the lower court and dismissing the respondents appeal against him. It is to be noted that the applicant whether deliberately or otherwise omitted to annex any document to show the nature of the appellants claim in its present suit or appeal (i.e. writ of summons or an originating summons or the notice of appeal). This omission is in my view fatal to the applicants application which does not provide all the necessary materials to entitle the applicant to the relief(s) or discretion it claims or seeks in its application. It is trite that for a court to exercise its discretion properly or in favour of the applicant the said applicant must place before it sufficient materials to enable it to do so. In the instant case the appellants failure to disclose the particulars of the action or claims of the respondents in the present suit or appeal is fatal to the said applicant. Such materials or particulars if placed before this court will enable it to properly consider the applicants interest or the necessity for joining it as a party (or respondent) in the appeal. Even the proceeding or ruling of the lower court refusing the applicants earlier application for joinder which would have been of assistance to this court was not annexed to the supporting affidavit (see paragraph 3(xii) of the supporting affidavit). See University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143; Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; (1982) 1 All NLR (Pt. 1) p. 1; Hart v. T.S.K.J. Nig. Ltd. (1998) 12 NWLR (Pt. 578) 372 at 392 and 399. The applicant is not also favoured by or under the 3rd question.
The last and final, question (i.e. question 4) can easily and simply be answered in the negative because the applicant has not pointed out to us any serious question in the present appeal which cannot be answered unless it is made a party. The ownership of the landed property can easily be found or established by the deed of assignment between the applicant and the 2nd respondent. It is not necessary for the applicant to be made a party in the case in order to show or prove that it had assigned the property to the 3rd party. It can do so as a witness rather than a party. In any case both the applicant and the 3rd party not being parties to the present suit or appeal will not be bound by the decisions of this court in the present appeal.
Finally on my above consideration of the present application, I find it to be lacking in merit and an attempt by the applicant for an unnecessary relitigation over a single transaction which should be discouraged by this court. The applicant also slept over his right of appeal against the ruling of the lower court refusing his earlier application for joinder. The application is accordingly hereby refused and dismissed. I make no order as to cost and each party should bear its own costs.
Other Citations: (2006)LCN/1993(CA)
