Akin Ojo V. Yisa Eyinfunmi Oseni & Anor
LawGlobal-Hub Lead Judgment Report
PHILIP NNAEMEKA-AGU, J.C.A.
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.
Other Citations: (1987) LCN/0036(CA)
