Juliana Ibiyemi Akinbinu V. Yisa Eyifunmi Oseni & Anor. (1992)

LawGlobal-Hub Lead Judgment Report

O. I. AKPATA, J.S.C. 

This appeal relates in the main to the right or otherwise of a person not a party in a case to appeal against an order of a trial court allowing one of the parties to amend his or her pleading. Incidental to it is the competence, or lack of it, of the Court of Appeal to pronounce on the role of the trial Court in granting the amendment when it (the Court of Appeal) had held that the appellant was not competent to appeal against the order.

The plaintiff, Yisa Oseni claimed from the defendant, Juliana Akinbinu, the sum of N140,000.00 being money payable by her to him as per a loan agreement dated 25th November, 1977. It was the contention of the defendant in her statement of defence that the said loan agreement prepared by one Mr. Akin Ojo, a solicitor, was obtained by fraud. She went on to state that Mr. Ojo brought two deeds of conveyance along with the said loan agreement, and explained to her, an illiterate, that the said loan agreement “was the same document as the aforesaid deeds”.

At the hearing of the action before Balogun, J., the solicitor was called as a witness by the plaintiff, apparently to refute the allegation of fraud in the preparation and execution of the loan agreement. As PW.3, the solicitor testified to the effect the he prepared the loan agreement on the instruction of the defendant and that he delivered the agreement to her in her premises on 24th November, 1977. According to him the defendant read it over and expressed her satisfaction as to its contents.

The solicitor was subjected to rigorous cross-examination by the defendant’s counsel who suggested to him that he facilitated the fraud committed on her thus:

“The truth of the matter is that when you presented Exhibits D1 and D2 already executed by the Vendors with Exhibit P1 not yet executed to the defendant you explained to the defendant that Exhibits D1 and D2 (which were already executed by the Vendors) purport that the defendant had paid the total considerations of the purchase prices on the two conveyances amounting to N70,000.00 and that you said as she had not infact paid those purchase prices she had to execute Exhibit P1 which explained to her showed that she was owing the Vendor that sum of N70.000.00”

The learned trial judge interjected thus:

“The question is at variance with the case pleaded by the plaintiff 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 S/D and filed on 11th December, 1984. Don’t you agree Mr. Sofunde.”

Learned counsel for the defendant then intimated the court that he would apply to amend his pleadings. The learned trial judge expressed his views thus:

“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 cross-examination continued. At a stage counsel for the plaintiff objected to a question suggesting that Mr. Ojo “secured the confidence of the defendant by playing on the fact that both of you come from the same state”. On the court indicating that the question was relevant to serious allegation made in paragraph 5 of the statement of defence and counter-claim against the witness, and requesting counsel to read out paragraph 5 (xi), counsel withdrew his objection. Learned trial judge however got the court registrar to read out the relevant paragraph of the statement of defence.

The court then asked the witness to answer the question put to him by counsel for the defence, that is, “you secured the confidence of the defendant by playing on the fact that both of you come from the same state”. To this question the witness answered:

“I am not feeling well and I am no able to read document. I have been standing all day. I have benefitted by the reading done by the Registrar if you allow me to come back another day, I will read”.

Both counsel indicated that they were in favour of the court granting an adjournment.

The trial court ruled thus:

“Having heard learned counsel for the parties the issue raised by the court, and as neither counsel wished to address the court except as to the point of adjournment. I think in the interest of justice, the witness should be served with a copy of the writ of summons and pleadings in this case at this stage of the proceedings by each party on or before the adjournment date, to enable him know of the allegations being made against him in these proceedings and to enable him to consider whether or not he ought to be joined as a party in this action. At the adjourned date, and before continuing is with further evidence, I will call on learned counsel for each party to address me, having regard to Peenoks Case (1982) 12 SC. 1 on –

(a) Whether the action is properly constituted without Mr. Akin Ojo being joined as a party: and

(b) Whether or not Mr. Akin Ojo should be joined as a party, and in view of the other decisions cited by the Supreme Court in Peenok’s Cases. I order accordingly. Further hearing in this case is adjourned to 13th June, 1985. The witness address is No. 10 Akinsanmi Street, Obanikoro”.

Before the next adjourned date, counsel for the defendant filed a formal application to join Mr. Akin Ojo as a co-defendant in the action, and for leave to amend the defendant’s statement of defence and counter-claim. The application was moved on 13th June, 1985. 1t was opposed by counsel for plaintiff and Mr. Ojo who had been put on notice. The learned trial judge in his ruling granted his application and explained that Mr. Ojo was being joined as additional defendant to both the claim of the plaintiff and counter-claim of the defendant. He ordered that “the writ, the statement of claim and the statement of defence and counter-claim shall be amended as prescribed under the rule of court”.

Against the ruling of the learned trial judge, Mr. Ojo, joined as a co-defendant, appealed to the Court of Appeal. In the Court of Appeal issues were formulated by the parties in their respective briefs of argument. Oral submissions were also canvassed. In his judgment, Nnaemeka-Agu, J.C.A. (as he then was) found the issues framed by the appellant “rather diffuse”, and the issues framed by learned counsel for the second respondent, that is, the defendant, “appeared to have left out an important aspect of the case, that is, in relation to the intervention by the learned trial judge”. He then regarded the issues for determination as the first issue formulated by the plaintiff/appellant and the three issues identified by the defendant/respondent. The four issues put together were:

“(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”.

After full consideration of the issues involved and the submissions of counsel, the then learned Justice of the Court of Appeal in his judgment allowed the appeal and set aside the order of Balogun, J .,joining the appellant as the second defendant in the suit and made an order remitting the case for trial de novo before another judge.

Kolawole, J.C.A., also delivered a considered judgment and arrived at the same conclusion reached by Nnaemeka-Agu, J.C.A., (as he then was).

In a dissenting judgment well articulated, Kutigi, J.C.A., was of the view that the application for amendment was properly made and granted. He however made the point that “it is not the 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”.

He accordingly held that the appeal must fail and went on to dismiss it.

The defendant has now brought her grievance against the majority decision of the Court of Appeal to this Court. Two grounds of appeal were originally filed. One of them complained against the majority judgment of the Court of Appeal that Mr. Akin Ojo was not a desirable party to be joined as a co-defendant.

However amended grounds of appeal were filed in this Court on 22nd June, 1990 pursuant to order of this Court made on 19th March, 1990. They were four in all. The following issues have been formulated in the amended appellant’s brief filed on 22nd June, 1990 by the defendant/appellant as arising for determination in the appeal:

“(1) Whether the 2nd respondent would be prejudiced by the order granting the amendment;

(2) Whether the 2nd respondent had any locus standi to complain about the amendment:

(3) Whether the learned justices of the Court of Appeal were right in coming to the conclusion that it was the learned trial judge who prompted the amendment: and

(4) Whether it was open to the Court of Appeal to decide the issue as to whether or not the learned trial judge prompted the amendment”.

It is obvious from the amended grounds of appeal and the issues formulated as arising from them that the defendant/appellant has conceded that Mr. Akin Ojo was wrongly joined as a party by the learned trial judge. The question of joinder is therefore not for determination in this appeal.

Mr. Akin Ojo, the second respondent in this appeal, also filed an amended respondent’s brief on 8th June, 1990 and discarded that filed by him on 27th October, 1987. The plaintiff/respondent filed what he erroneously called “first respondent’s reply brief’ on 10th May, 1988.lt was in actual fact first respondent’s brief and not first respondent’s reply brief. No amended brief was filed subsequent to the defendant’s filing amended grounds of appeal and amended appellant’s brief. The issues formulated in the plaintiff/respondent’s brief and the submissions therein arc thus based on the original grounds of appeal which have been abandoned by the defendant/appellant. The issues formulated by the second respondent (Mr. Ojo) in his amended brief are:

“1. Whether the learned Justices of the Court of appeal were right in coming to the conclusion that it was the learned trial judge who prompted the amendment.

2. Whether the 2nd respondent was prejudiced by the role of the learned trial judge in prompting the amendment.
3. Whether the learned justices of the Court of Appeal in the exercise of their discretion were right in remitting this case for trial de novo before another judge”.

Mr. Ojo as the second respondent in his brief of argument contended that the first and fourth grounds of appeal are misconceived as they do not arise from the decision of the learned Justices of the Court of Appeal. It was also his contention that the second issue proposed for determination by the appellant is irrelevant and mis-conceived as the learned Justices of the Court of Appeal specifically held that he, the appellant in that court, was not a party in the suit before the amendment was ordered and therefore could not oppose the amendment.

It is necessary in order to have a clear understanding of the issues involved in this appeal to first comprehend the reasoning of the learned Justices of the Court of Appeal in reaching their decisions in respect of the amendment granted by the trial judge.

In his judgment Justice Nnaemeka-Agu was satisfied that the joinder of Mr. Ojo by the trial judge which he himself “instigated” was improper. He went on to reason that since the joinder was improper the question of the amendment “should no longer concern the appellant (Mr. Ojo) but the first respondent”. The then learned Justice of the Court of Appeal made the point however that the issue of amendment, which according to him was suggested by the learned trial judge, raised a matter so fundamental to the administration of justice that an appellate court ought not to close its eyes to it once it has been raised. After making reference to the fact that we operate an adversary system in the administration of justice he pointed out that an amendment must not be prompted or suggested by the judge. He went on to point out the potential injustice inherent in a judge advising a party to amend his pleadings. He concluded thus:

“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”.

It can be seen from the above quoted conclusion of the learned justice that while he specifically set aside the order of the learned trial judge joining Mr. Ojo as the second defendant, the order of the learned trial judge that “the writ, the statement of claim and the statement of defence and counter-claim shall be amended as prescribed under the rule of court” was not specifically set aside.

In his own judgment, Kolawole, J.C.A., made the point that the appeal against the order of amendment was fundamental. He went on to criticize the trial judge for prompting the application for amendment. He concluded thus:

“I do not entertain any doubt that it is a guiding principle of cardinal importance on 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 proceeding 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.”

It is also crystal clear that Kolawole, J.C.A., did not set aside the order of amendment made by the trial judge on the ground that “only a party to a proceedings can oppose such proceedings from being amended”. In the instant case the plaintiff, who is first respondent in this appeal, has not appealed against the order granting the amendment prayed for by the defendant, now appellant. It is against this background one should set out grounds I and 4 which the second respondent submits are mis-conceived.

Ground 1with particular (a) reads:

“1) The learned justices of the court of Appeal erred in law in their majority decision in holding that the amendment of the statement of defence granted by the learned trial judge was wrong. Particulars of Error

a) They failed to observe that the amendment did not materially or substantially alter the nature af the defendant’s case.

b) ………………………………………….

c) ………………………………………….

d) . ………………………………………….

I am in agreement with the second respondent. Mr. Ojo, that the learned justices of the Court of Appeal did not in their majority decision hold that the amendment of the statement of defence granted by the learned trial judge was wrong or that the appellant could not amend her statement of defence and counter-claim. They only frowned at the conduct of the trial judge for allegedly instigating the amendment. Any issue formulated reflecting the complaint in ground One will therefore be irrelevant. Ground Four which I shall reproduce fully reads:

“The learned justices of the Court of Appeal erred in law in failing to dismiss the appeal of the 2nd Respondent against the decision of the learned trial judge allowing the Appellant to amend the Statement of Defence and Counter-Claim.

Particulars of Error

(a) In so far as it is not disputed that the ruling granting the 8 prayer for an amendment was the same ruling by which the 2nd Respondent was joined as a Defendant to the action the 2nd Respondent could not be said to have been a party to the action at the time of the amendment.

(b) In any event, in view of the judgment of the Court of Appeal allowing the 2nd Respondent’s appeal against the order of joinder the 2nd Respondent ceased to be a party.

(c) In the light of (a) and (b) foregoing the order of amendment made cannot be said to be pre-judicial to the 2nd Respondent and/or the court of Appeal had no jurisdiction to entertain the said appeal on the issue of amendment.

(d) Having regard to the decision of the Court of Appeal in (b) foregoing its further decision to the effect that the question of an amendment should no longer concern the 2nd Respondent and the state of the law the Court of Appeal had no jurisdiction to entertain the 2nd Respondent’s appeal.”

I find nothing wrong in this ground of appeal. It is a legitimate complaint in the circumstances of this appeal. Whether the ground or complaint will succeed is something to be looked into presently.

Before considering the relevance or otherwise of the issues formulated, it is also necessary to set out portions of ground two and ground three in full. They read:

“(2) The learned Justices of the Court of Appeal erred in law in holding that on the undisputed material on record the learned trial judge prompted the appellant to apply to amend her pleading that it is clear from the said material that she applied because the learned trial judge would not allow proceeding which went to no issue to be led.

Particulars of Error

a) ………..

b) ……….

c) ……….

(3) The learned justices of the Court of Appeal erred in law in entertaining the issue of who it was who prompted the Appellant’s application for an amendment when:-

a) It was not an issue raised or properly raised by any of the parties:

b) It is not one of those issues which ought to be raised by a court suo motu;

c) The issue did not form one of the grounds upon which the 2nd Respondent or any of the respondent objected in the High Court to the amendment being granted and no leave was sought and/or obtained to raise and argue a point not raised and argued in the court below:’

While issues three and four formulated in the appellant’s brief seem relevant, issue one which apparently relate to ground one is irrelevant. Issue two has not in my view been correctly framed to reflect the complaint in ground four. It seems to me that the issue raised by ground four with its particulars can be said to be whether the learned justices of the Court of Appeal, Nnaemeka-Agu, JCA, (now JSC.) and Kolawole, JCA., ought not to have dismissed the second respondent’s appeal touching on the amendment granted by the trial court having allowed the second respondent’s appeal against the order of joinder and having held that only a party to any proceedings can oppose such proceedings from being amended.

I must say that issue three in the second respondent’s brief which is

“Whether the learned justices of the Court of Appeal in the exercise of their discretion were right in remitting the case for trial de novo before another judge” is most irrelevant to this appeal. No ground of appeal has questioned the order remitting the suit to another judge for hearing and determination.

The point I wish to take first is the question “whether it was open to the Court of Appeal to decide the issue as to whether or not the learned trial judge prompted the amendment.” Learned counsel for the appellant pointed out that the majority decision of the Court of Appeal was to the effect that the second respondent had no Locus Standi to question the order of the trial judge granting the amendment, he not being a party in the suit. He therefore contended that once the second respondent had no locus Standi to complain, however fundamental the issue might have been, the Court of Appeal had no jurisdiction to look into the matter.

There is no doubt that the learned justices of the Court of Appeal were conscious of the fact that the question as to whether the learned trial judge instigated or prompted the amendment was stricto sensu not an issue in the appeal before them. Nnaemaka-Agu, JCA, was of the view however that an appellate court ought not to close its eyes to it once it has been raised “because it touches on a matter so fundamental to the administration of justice in this country.” Kolawole, JCA., on his part made the point that regardless of the fact that there was no question in controversy between the second respondent and the appellant, he “must take congnizance of the fact that the learned trial judge has entered into the arena of the contest.”

This was a case in which one of the grounds of appeal before the Court of Appeal was incompetent. I think it is valid to say that where a Court of Appeal has jurisdiction to entertain an appeal but one of the grounds of appeal is incompetent. in that the appellant has no locus standi to complain and therefore is not competent to bring the matter before the court, the court of Appeal is deprived of jurisdiction to make observations, not even in the form of obiter dicta, in relation to the incompetent ground of appeal. Obiter dicta, although not directly upon the question before a judge, and therefore not binding as precedent, are only permissible where the judge is vested with jurisdiction to resolve the question in controversy before him. It seems to me that the fact that a matter appears to be fundamental to the administration of justice will not by itself entitle a judge to pronounce on it when the matter in the first place should not have been before him. I am therefore of the strong view that the strictures directed at the trial judge in respect of the amendment allegedly instigated or prompted by him were uncalled for in the circumstances of the case.

Did the trial court really prompt or instigate the amendment It is necessary in answering this question to set out fully the relevant portion of the proceedings in issue. I have at the initial stage of this judgment done so. I do so again for ease of reference. At page 46 learned counsel for defendant/appellant put to the second respondent who was then testifying as PW.3 an obviously incriminating question. As the record shows at page 47 the following transpired thereafter:

“Court:

The question is at variance with the case pleaded by the plaintiff 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 SID and filed on 11th December. 1984. Don’t you agree. Mr. Sofunde.”

A.L.A.L. BALOGUN -O.F.R.

(JUDGE)

Mr. Sofunde

“I will apply to amend my pleadings’”

Court

” 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.”

It is clear to me from the above passage called from the record of appeal that when the trial judge disallowed counsel’s question because, according to him, it went to no issue, counsel without any prompting from the trial judge indicated immediately that he would apply to amend his pleading. It was after counsel had made his intention to amend known to the court that the learned trial judge made the point that such an application for amendment should be formal and that the question which he had disallowed would not be countenanced without such an amendment. In my view, the criticism levelled at the trial judge was unjustified. The justices of the Court of Appeal no doubt over sighted the indication given by counsel that he would apply to amend his pleadings. In effect what was regarded as a prompting or an instigation by the trial judge was not considered along with counsel’s prior indication that he would amend the statement of defence. The final issue which calls for a decision is whether the Court of Appeal ought not to have struck out or dismissed the second respondent’s appeal against the order granting amendment having held that only a party to any proceedings can oppose an application for amendment. As I have already pointed out, in its majority decision the Court of Appeal made no order arising from the incompetence of the second respondent to appeal against the order relating to amendment of the statement of defence. A cursory glance at the conclusion of Nnaemeka-Agu and Kolawole, J.J.C.A., would give the impression that the appeal of the second respondent against the order of amendment was upheld by them and that the order made by trial Judge was set aside. A close scrutiny of the conclusions reached by the two justices suggests that while they frowned at the role played by the learned trial judge in the matter of the amendment, they stopped short of setting aside the amendment because the second respondent was not an aggrieved party. It was only the order for joinder made by the trial judge that was set aside. The position however is that the Court of Appeal having held that the second respondent could not complain against the amendment ought to have gone further to strike out the appeal touching the amendment.

It is not in dispute in this appeal that the second respondent had no standing to appeal against the order granting the prayer to amend. In passing I wish to state however that if the second respondent thought he had interest in the matter and desired to appeal he ought to have sought the leave of the High Court or Court of Appeal pursuant to section 222(a) of the Constitution of the Federal Republic of Nigeria. 1979.

In the circumstance the defendant/appellant’s appeal succeeds. The order of the learned trial judge granting the amendment prayed for by the defendant is hereby affirmed. The appeal of the second respondent to the Court of Appeal against the, the order of amendment, which ought to have been struck out, is hereby struck out. For the avoidance of doubt the case stands remitted to the High Court for hearing and determination by another judge.Costs in this Court are assessed at N1,000.00 against the second respondent in favour of the defendant/appellant. Costs awarded in the Court below are set aside. Each party to bear his or her own costs in that Court.

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Other Citation: (1992) LCN/2503(SC)