Lead Merchant Bank Limited V. Musiliu Salami & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
MONICA BOLNA’AN DONGBAN-MENSEM J.C.A.
The Appellant is dissatisfied with the decision of the trial Court delivered by Hon. Justice L.G.A. MARSH of the Lagos State High Court joining it as a co-Defendant in the suit of the Respondent at the trial Court. The Ruling was pronounced on the 31st day of January 2001, following a considering of the arguments of learned Counsel on each side in a motion on Notice for the joinder.
The case of the Respondent before the trial Court is for an alleged disturbance and interference with its possession, use and occupation of a DRAIN SET-back at PLOT 1214C KARIMU KOTUN STREET, VICTORIA ISLAND LAGOS. The Appellant is said to have commenced some illegal construction on the said plot of land.
The grouse of the Appellant is that it had been wrongfully joined as a party in the suit of the Respondent who is Plaintiff before the trial Court. The Appellant was joined as a 3rd Defendant to the original Defendant along with the Eti-Osa Local Government.
The brief facts of the case are that “some people” said to be “from Lead Merchant Bank Limited” erected a sign post on the land indicating the nature of the construction on going on the land. On the sign post, is a directive that all enquiries were to be directed to the bank. A photograph of the said sign post was annexed to the affidavit in support of the motion for a joinder. The said exhibit marked Exh. KK forms the kernel of the decision which is being appealed against.
Two issues were formulated for the Appellant for the determination of this Court.
These ISSUES are :-
“(1) Whether the appellant is a necessary party to the respondent’s suit at the High Court.
(ii) Whether the learned trial Judge properly evaluated the two conflicting affidavit evidence on the Motion for joinder and the exhibits attached to the respective affidavits.”
Issue two formulated by the Appellant is no more than the other side of the same coin. It is a mere repetition of the argument proffered under issue one. The determination of issue one would thus necessarily involve a consideration of the evaluation of the two affidavits placed before the trial Court. Being an issue of documentary evidence, this court is in as good a position as the trial Court to evaluate the said evidence.
The question is whether the Appellant is a necessary party. In determining these questions, the learned trial Judge would either have fully considered the affidavit evidence placed before it by both parties or would have failed so to do and thereby came to a wrong decision. I am therefore of the humble option that the resolution of issue one will dispose of this appeal. I shall so proceed.
The case of the Appellant is that prior to the filling of the motion on Notice, the Plaintiff/Respondents had written a letter to the Appellant complaining about a sign post erected on the land in question. It was alleged in the letter that the sign post was erected by “some men from the Lead Merchant Bank” connecting the Appellant with some illegal construction being under taken on the land. (Page 39 of the records referred).
The Appellant replied by a letter dated the 9th day of November 2000, denying any knowledge of the said sign post and the alleged construction. The Respondents nonetheless went to Court seeking to join the Appellants, but failed to put all the facts before the trial court. In its counter – affidavit challenging the application for its joinder, the Appellant put all the facts before the trial court. The Learned trial Judge, submitted the learned Counsel for the Appellant, did not however take into consideration, the conflicting depositions before arriving at its decision to join the Appellant as a party in the suit of the Respondent.
The learned trial Judge at pg 62c of the record for this appeal held as followings- .
“….On going through the advert in Ext KK2, one will irresistibly concluded that Lead Merchant Bank has an interest in the property the subject matter of the property. This interest cannot be explained away as learned 2nd Defendant Counsel sought to do by arguing that they are only a commercial Bank. From the foregoing, I am satisfied that all the three parties sought to be joined are necessary parties…The parties sought to be joined are hereby joined as 2nd and 3rd Defendants to the plaintiffs suit…”
Attached
The facts upon which the decision of the trial Court is premised are stated in paragraphs 8, 9, 10.11.12.13 of the affidavit in support of the motion for joinder. The said paragraphs are hereby reproduced for the ease of reference.
PARA.8:- .”That some people from Lead Merchant Bank Limited came to the Land, the subject matter of this suit and erected a sign post indicating the nature of construction presently undertaking on the land and directing any person wishing to make enquiries Now shown to me is the photograph of the sign post attached herewith and marked EXHIBIT KK.
PARA.9:-. That by a letter dated 2nd November, 2000, our solicitors Messrs Johnson Bryant advised the Bank to stop the construction as the Land in question is the subject of the dispute in this suit.
Attached: Herewith and marked EXHIBIT KK2 is Messrs Johnson Bryant’s
PARA 10:- That in spite of the above, construction works persisted on the land.
PARA.11:- That I also know as a fact that official, of Eti-Osa Local were coming to the land, the subject matter of this suit for and on behalf of Eti Osa Local Government to monitor the progress of construction works undertaking on the land.
PARA.12:- That the Chairman of Eti-Osa Local Government was also coming to Inspect the state of construction works on the land.
PARA.13:- That I know as a fact that both Lead Merchant Bank Limited and Eti-Osa local Government is in some manner involved in the construction works and other activities on the land.
In response to these averments, the Appellant filed a counter – affidavit (See page 41 – 45 of the records of the appeal). Some paragraphs of the counter-affidavit are out right denials of the averments of the Respondent as applicant before the trial Court. These are also hereby reproduced for the ease of reference. [pg 41-45 of the record):-
PARA.5 That the Bank is not involved in any construction work or in any other dealing or any form of interference with the Plaintiffs’ alleged possession and use of the drain set back at Plot 1314c Karimu Kotun Street Victoria Island, Lagos which is the subject matter of this suit.
PARA 6. That further to paragraph 5 above, the Bank denies paragraph 5 above Bank denies paragraph 8 of the affidavit of the Plaintiffs and stated that at no time did any person or group of persons from or representing the bank visited the land in question or erected a Sign Post thereon.
PARA 7 That on November 3,2000, the bank received a letter (Exhibit KK2 of the Affidavit of the 1st Plaintiff) from the firm of Messrs Johnson Bryant stating inter alia that “We observed that sometime last week, some people came to the land the land in dispute and erected a Sign Post indicating the nature of the construction presently under taking by person unknown and your Bank” in disregard of the authority of the Honourable Court to adjudicate on the matter.
PARA 8 That upon receipt of the said letter, I checked the records of the Bank and did not find any trace of such involvement or knowledge of such development and the bank respondent with a letter dated November 9, 2000 informing the firm of Messrs, Johnson Bryant that the Bank is not involved in the construction of any structures on the plot of land referred to in their letter.
A copy of the said letter, which the Plaintiffs have failed to disclose in their affidavit is attached herewith and marked as Exhibit AE. The said letter was copies to the Registrar of Court 11 in the High Court, Lagos. (Emphasis mine).
PARA 9 That further to paragraph 6 above, the bank did not at time Commission or engage the services of or authorize any person or group of persons to produce or erect the Sign Post shown in Exhibit KK of the Plaintiff’s Affidavit or any other Sign Post.
PARA 10 That following the receipt of the Motion on Notice by the bank I personally went to confirm the existence or otherwise of the Sign Post shown in Exhibit KK of the Plaintiff’s Affidavit on January, 12, 2001 and found that there no such Sign Post erected on the said Plot 1314c Karimu Kotun Street, Victoria Island, Lagos as alleged in the Plaintiffs’ Affidavit.
PARA 11 “That the Bank denies paragraph 13 of the Plaintiffs’ Affidavit in support of the Motion on Notice and state that the Bank has no contract, agreement, dealings in the form of business or commercial relationship whatsoever with Eti-Osa Local Government and/or Lagos State Urban and Regional Planning Board either in connection with the land in question or in any other respect.”
Was the learned trial Judge adequately guided by these depositions in arriving at the decision that the Appellant is a necessary party in the suit of the Respondent?
A dispassionate perusal of a statement of claim should ordinarily disclose the nexus between the party sought to be joined and the claimant. The nexus between the Appellant and the claim in this appeal is in the nature of the Appellant’s alleged interference with the free usage of the land by the Respondent.
Is the Appellant a necessary party? This question can be effectively determined with a consideration of the statement of claim of the respondent which is as follows (page 1of the records for this appeal)-
“The plaintiffs claim against the Defendant is as follows:
(a) A DECLARATION that by virtue of the Approval letter Dated 17th September, 1998, the Plaintiffs are in legal occupation of the Drain Set-back at Plot 1314C Karimu Kotun Street, Victoria Island, Lagos.
(b) A declaration that the Defendant disturbance and interference with the Plaintiffs possession, use and occupation of the Drain, Set-back at Plot 1314C Karimu Kotun Street, Victoria Island, Lagos is illegal, utra-vires, null and void.
(c) An Order of Perpetual Injunction Restraining the Defendant from disturbing, and/or interfering with the Plaintiffs Possession, use, occupation and enjoyment of the Drain Setback at Plot 1314C Karimu Kotun Street, Victoria Island Lagos.
(d) The sum of N8,000,000.00 (Eight Million Naira) being General damages suffered by the Plaintiffs as a result of the Defendant disturbance of the Plaintiff use of the Drain Set-back at Plot 1314C Karimu Kotun Street, Victoria Island, Lagos.
(d) The Sum of N500,000.00 (Five Hundred Thousand Naira being costs of the action.
It is the submission of the learned Counsel that based on the facts in the counter affidavit and the claim of the Respondents as detailed out in the statement of claim, the Appellant cannot be said to be a necessary party.
The Appellant’s learned Counsel posits that the learned trial Judge should have invoked the provisions of Section 149d of the Evidence Act Cap 112 LFNl990 to rule against the Applicant for suppressing Exh AE of the Respondent before the Court, the Applicants having not denied the receipt of the said Exh. AE. Relying on the case of GANIYU TEWOGBADE v. ARASI AKANDE (1968) MNLR 404@408,the trial Court should have applied Section 149d against the Applicant in deciding whether or not the Respondent is a necessary party. The learned Counsel then refers to the definition of who is a necessary party as held in the following cases; [(GANIU TEWOGBOLA V. ARASI AKANDE (Supra) (1968) NMLR 404 at pg. 408, NWANKWO V. ECUMENTAL DEV. CO. SOCIETY(2002) 1 NWLR (Pt.749) 513 at pg. 534 P. 34, NNAMANI V. NNAJI (1999) 7 (pt.610) 3113 at pg. 330, JIDDA V. KACHALLAH (1999) 4 NWLR (Pt. 599) 426 at 432, GUDA V. KITTA (1999) 12 NWLR (Pt, 629) 21 at pg. 49, GBADAMOSI v DAIRO (2001) 6 NWLR (Pt.708) 137 at pg. 166)
Conversely the Respondent’s learned Counsel submits that ‘…since the Plaintiffs action relates to the act of interference and disturbance with their use and occupation of the land, subject matter of the suit, the act of the Appellant as evidenced by Exhibit KK i.e. the sign post indication (sic) the nature of construction work on the land and directing enquiries to it, is a clear indication that the Appellant has an interest in the land which qualified it as necessary party to the Suit. The averments of the Appellant denying the real evidence of the Respondents as shown in Exhibit KK on the involvement of the Appellant with the subject matter of the claim at the lower court cannot outweigh the evidentiary value of the real evidence.
The question to ask is what the “real evidence” is? The ‘real evidence’ is Exhibit KK said to have been erected by SOME MEN from Lead Merchant Bank. Against this ‘real evidence’ is the uncontroverted evidence of the Respondent, presented to the trial court as Exhibit AE. Therein the Appellant denies any interest in the said land and avowed it had nothing to do with the erection of Exhibit KK. Not an iota, not a shred of evidence was adduced to link the Appellant directly with Exhibit KK. The deponent to the affidavit in support of the application for joinder made some wild declarations which go totally contrary to the provisions of section 87 of the evidence Act cap 112 of the LFN 1990 as now amended. His source of information as disposed to in paragraphs, 8, 9, 10, 11, 12 and 13 is left entirely to the imagination of the adjudicator.
If there is” real evidence”, it is that provided by the Appellant in Exhibit AE which was concealed and remains uncontroverted when brought to light; totally uncontroverted by the Respondent. How could the learned trial Judge possibly miss out on this? (Refer; Moorage v Lawani (1990) NSCC 164).? Compounding the case of the Respondent on the uncontroverted piece of evidence is the fact of its concealment by the Respondent. Certainly, if oral evidence was dispensed with to resolve the obvious conflict, then Section 149(d) of the Evidence Act should have come in handy to the aid of the learned trial Judge to find that evidence which it suppressed would be unfavorable if produced. Having thus been produced by the Defendant, the learned trial Judge was obliged to give some Judicial consideration to it. He failed to do so and thereby undermined the Constitutional right of the Appellant to a fair hearing under the provision of section 36 of the 1999 Constitution of the Federal Republic of Nigeria.(Refer; Ganiyu Tewogbade v. Arasi Akande .. see pg. 19)
Who is a necessary party in a suit? This question has been judicially considered/several times. A necessary party is he/she” … whose presence is essential for the effectual and complete determination of the claim before the court (NWANKWO vs. ECUMENICAL DEV. CO. SOCIETY (2002) 1 N.W.L.R.,.1 Pt.749 p513@534, NNAMANI vs. NNAJI (1999) 7 N.W.L.R. Pt.610 page 313 @ 330). I would add that a necessary party in a suit is he/she who’s absence leaves a gulf, a lacuna in the final determination of the suit placed before the court. In other words, a suit for the determination of the interest of a number of people should have all the persons interested contesting or defending their respective rights. Many reasons abound for the need to have all the necessary parties joined in one scoop of a legal battle. It brings an end to litigation on the same issue between likely parties (Refer ADEDIRAN VS INTERLAND TRANSPORT LIMITED (1991) 9 N.W.L.R. Pt 214 P 155, AGUNRINDE VS AJAMOGUN (1992) 6 N.W.L.R. Pt 246 P 156 @ 171). The interests of all potential parties are hereby completely and effectually determined; all rights on the issue are put in proper perspective. Generally, a party who seeks to join in a suit he is not made a party, does so with a desire to shield himself from irreparable prejudice of his interest. The parties could become estopped from raising the issue again having stood by, acquiesced, when the litigation was on. It also curbs the proliferation of litigation on the same subject matter and between the same parties.
The Learn1edtrial Judge found as a fact that the Appellant and the Respondent
“…conflict on whether or not the sign post was erected by or on behalf of the Lead Merchant Bank…”. The Learned trial Judge without resolving the conflict placed the burden of proofing the erection of the sign post on the Appellant. No further evidence from the Respondent as to how the Appellant must have been responsible for erecting the sign post was adduced. The learned trial Judge failed to adopt the procedure for resolving conflict in the affidavit evidence of the parties. He elected a short cut as he held as follows”
“…it is trite that conflict in affidavit doe not need to be resolved by calling oral evidence in all cases particularly
“…as in the present application, the second party sought to be joined will have the upbill (sic) task of satisfying the court as to where the sign post directing enquirers to the Lead Merchant Bank came to be erected on the disputed land”.
Why should the Respondent as the party sought to be joined have the uphill task ‘satisfying the court’ when the applicant has not adduced any direct evidence linking it to the said evidence? SOME MEN is a far cry from the real issue. He who has the initial burden is he who alleges: he it is who stands to loose if no further evidence is adduced.(Refer: The Appellant is a commercial institution its address and telephone number is not a secret. The depositions in support of the sign post fall far short of valuable evidential standard. Paragraphs 8 -13 of the affidavit in support of the motion had earlier been reproduced in this judgment. Apart from falling short of the requirements of section 87 of the evidence Act cap 112 of the laws of the Federation of Nigeria, they disclosed no useful facts but are conclusions made there in. The said depositions go to no issue and should in fact have been struck out at the trial Court. The reason being that he who asserts has the burden of proof. (Refer MID FORD EDOSOMW AN VS KENNETH LOGBEYFUN – (1996) 4 N.W.L.R. Pt 442 page 266 @ 278).
It was not shown that the “some people from Lead Merchant Bank” were traced to the Appellant either as its workers or agents. The Appellants have denied any knowledge or association with the said men. Why the Appellant should be interested in the land has also not been stated by way of disproving its outright denial.
The learned trial judge did not at all give a reason why, from the statement of claim, the Appellant should be joined as a party in the suit of the Respondent. His lordship failed to consider all the facts placed at its disposal by all the parties. The trial Court thereby came to a wrong decision which is perverse by reason of amounting to a miscarriage of Justice. [Refer; ODIBA v. AZEGE (1998) 8 NWLR Pt.566 p.370 @ v. NIPOST LTD (2003) 8 NWLR Pt.822 p.308.
There is no question that has been directly linked to the Appellant in the suit of the Respondent which cannot be completely and effectually determined in the absence of the Appellant. Refer; UMAR v. ONIKATA (1999) 3 NWLR (Pt.596) 558 at pg.574, GREEN V. GREEN (supra) at pg.1123, O. U. DAVIDSON GROUP CONS. (NIG.) LTD V. BEES ELEC. CO. LTD (supra) at pg.516. The Appellant has no stake in the matter and the Respondent has not established how the Appellant is a necessary party.
The appeal therefore succeeds and is allowed. The decision of the trial Court is hereby set aside. A cost of N10,000.00 is awarded to the Appellant against the Respondent. IT IS HEREBY SO ORDERED.
Other Citations: (2007)LCN/2343(CA)
