Miss Adepeju Adefarasin V. Dr. Yasser Dayekh & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

KEKERE-EKUN, J.C.A.

The appellant herein as plaintiff instituted an action against the 1st respondent as defendant at the Kano State High Court by a writ of summons dated 30/7/99. The particulars of claim as indorsed on the writ of summons at page 2 of the printed record are as follows:

“The defendant purports to carry out business as a Dentist at TAHIR DENTAL CENTRE at Tukur Road, Nassarawa Quarters, Kano.

Unknown to the plaintiff the defendant is not a registered Dentist with the Nigerian Medical Council and therefore not licensed to practice Dentistry in Nigeria.

On or about the 15th day of June 1998 the plaintiff called at the defendant’s Dental Centre and was attended to by the defendant.

The defendant having listened to the plaintiff’s complaint informed the plaintiff that some of her teeth will be extracted and some of them trimmed to enable the fitting of a permanent denture. He claimed that he would have to fit in a dental crown on the canine teeth, replace the missing teeth with a permanent denture and trim the other teeth to enable a permanent denture to be fitted for the plaintiff.

The defendant negligently trimmed the teeth of the plaintiff to the extent that no permanent denture can now be fitted on them. The trimming of the teeth itself caused the plaintiff such pain, injury and damage that in the circumstances the plaintiff has to travel out of Nigeria to get treatment and correction to the damage done to her teeth by the defendant.

And the plaintiff claims the sum of N5,000, 000.00 (Five Million Naira Only) from the defendant as damages.”

Along with the writ of summons the appellant filed an application for an order that the 1st respondent shall furnish the court with security for his appearance in court and for the attachment of all the dental equipment at Tahir Dental Clinic pending further order or orders that the court might make. The prayers were granted accordingly.

Subsequently, the appellant filed an ex-parte application for leave to join Mr. Tahir Fadlallah (the 2nd respondent in this appeal) as the second defendant in the suit and for leave to amend the title of the writ of summons and statement of claim by adding the words “Both trading under the name and style of Tahir Dental Clinic” beneath the names of the defendants. The court granted the application pursuant to which the appellant filed an amended writ of summons and statement of claim, which can be found at pages 57-63 of the printed record. By paragraph 40 of the amended statement of claim the plaintiff claims:

“General damages for the injury, damage and pain caused to the plaintiff due to the negligence and reckless treatment given to the plaintiff by the 1st defendant at the defendants’ dental clinic limited to N8 million.

And the plaintiff claims N10,000, 000.00 (Ten Million Naira Only) from the defendants jointly and severally.”

The amended writ of summons and statement of claim were duly served on the 2nd respondent who thereupon entered a conditional appearance to the suit, filed a statement of defence and also filed a motion on notice dated 23/10/99 for an order striking out his name on the ground, inter alia, that he neither applied for, consented to nor signed any documents directly or indirectly regarding the registration of Tahir Dental Clinic, that he was not and had never been a partner in Tahir Dental Clinic and therefore was improperly joined in the suit.

The appellant filed a counter affidavit in reaction to the application and annexed two documents marked Exhibit YY1 and YY2 thereto in support of her contention that the 2nd respondent was indeed a partner in Tahir Dental Clinic. The 1st respondent did not file any response to the application. However at the hearing of the application, learned counsel for the 1st respondent aligned himself with the submissions made on behalf of the 2nd respondent and urged the court to strike out the 2nd respondent’s name. After hearing arguments from all the counsel, the learned trial judge in a considered ruling delivered on 6/3/2000 granted the application and struck out the name of the 2nd respondent from the suit. The appellant being dissatisfied with the decision has appealed to this court by her notice of appeal containing seven grounds of appeal. The notice of appeal at pages 97-100 of the printed record is dated 24/1/01 and was filed pursuant to an order of this court granted on 22/1/01.

In compliance with the rules of this Court, the appellant and the 2nd respondent duly filed and exchanged briefs. The 1st respondent although served with all the processes relating to this appeal and duly notified of the hearing date did not file any process. In the appellant’s brief three issues were distilled for the determination of this appeal as follows:

1. “Whether exhibit YY2 the form titled COMPANIES AND ALLIED MATTERS DECREE 1990 – FORM OF APPLICATION FOR REGISTRATION OF A BUSINESS NAME – TAHIR DENTAL CLINIC on pages 73 to 76 of the printed record contains enough evidence on it showing that the 2nd defendant/respondent was one of the persons who applied for the registration of TAHIR DENTAL CLINIC?
2. Whether the failure by the trial Court to evaluate exhibit YY1 which was placed before it at the hearing of the application led to a miscarriage of justice and or a proper appraisal of the applicant’s case against the 2nd defendant/respondent.
3. Whether on the pleadings – Statement of Claim filed by the appellant before the Court there are sufficient allegations made against the 2nd defendant/respondent to make him a party to the suit and whether at the stage reached by the trial court the probative value of those allegations need be considered by the Court?”

The 2nd respondent in his brief of argument adopted the three issues formulated by the appellant and in addition formulated a fourth issue thus:

“Whether or not from the state of the pleadings and the evidence both documentary and affidavit, placed before the lower court, the 2nd respondent is a necessary and/or proper party to the appellant’s suit before the lower court?”

At the hearing of the appeal on 15/5/06, learned counsel for the appellant, Mrs. Hashiya Ben Umar adopted the appellant’s brief and urged us to allow the appeal. Learned counsel for the 2nd respondent was absent although duly notified of the hearing date. Having filed his brief of argument he is deemed to have argued the appeal pursuant to Order 6 Rule 9 (5) of the Court of Appeal Rules 2002.

Having carefully considered the three issues formulated by the appellant and the additional issue formulated by the 2nd respondent, it is my considered view that only one issue arises for determination in this appeal and that is: whether from the state of the pleadings and the affidavit evidence before the lower court the 2nd respondent is a necessary and/or proper party to the appellant’s suit. The submissions of learned counsel shall therefore be considered in the context of this sole issue.

In arguing the sole issue for determination in this appeal, learned counsel for the appellant referred to Exhibit YY2 found at pages 73-76 of the printed record, which was attached to the counter affidavit filed by the appellant challenging the 2nd respondent’s application to have his name struck off the suit. Exhibit YY2 is a certified true copy of the application for the registration of a business name under the Companies and Allied Matters Act 1990 in respect of Tahir Dental Clinic. Learned counsel contended that from Exhibit YY2 it is clear that the 2nd respondent was one of those who applied for the registration of the business name, Tahir Dental Clinic and is therefore a proper party to be joined in the suit. He submitted that the finding of the learned trial judge that the 2nd respondent’s name does not appear on the last page of Exhibit YY2 (at page 76 of the record) where partners are expected to sign and also that the 2nd respondent’s signature does not appear on that page and that there is no evidence to suggest that the 2nd respondent was one of those who applied for the registration of the clinic, is not borne out by the printed record. He submitted that the 2nd respondent’s name appears on Exhibit YY2 and also that his name, T.M. Fadlallah, appears on the upper portion of page 76 of the record in the signature column in front of the abbreviated words, “SGD”, meaning signed. Learned counsel concluded that the learned trial Judge failed to evaluate or improperly evaluated the documentary evidence before him and submitted that in such circumstances this Court can intervene and is in as good a position as the trial court to evaluate the evidence. He relied on the following cases in support of this submission: S .B. Fashanu v. M. A. Adekoya (1974) 6 S.C. 83 at 91; Cash Affairs Finance Ltd. & Anr. v. Inland Bank (Nig.) Plc. (2000) 5 NWLR (658) 568 at 580.

In response to the submissions of learned counsel for the appellant on this issue, learned counsel for the 2nd respondent submitted that the sole basis for joining the 2nd respondent as a co-defendant in the suit was Exhibit YY2 on the presumption that a partnership existed between the 1st and 2nd respondent in respect of Tahir Dental Clinic. He referred to the amended writ of summons and statement of claim, which described the respondents as “both trading under the name and style of Tahir Dental Clinic.” He conceded that persons carrying on business under a particular name and style could be presumed to be in partnership and could be sued in either their corporate name or in their individual capacities but stressed that it is a rebuttable presumption, which cannot stand where there is no ascertained partnership. He referred to the definition of partnership as contained in Section 1 of the Partnership Act 1890 to wit:

“a partnership is a relationship which subsists between persons carrying on business in common with a view to profit”, and submitted that the two elements of partnership are (a) carrying on business in common and (b) with a view to sharing the profit. He submitted that a partnership could only exist where it is the intention of the parties and that where there is no such intention, insinuations and presumptions to that effect are irrelevant. He referred to: Nigerian Commercial Law & Practice (Vol. II) by Olakunle Orojo (Sweet & Maxwell London 1983) page 883 paragraphs 12.02, 12.04 and 12.09. He contended that the presumption of the existence of a partnership based on Exhibit YY2 alone is not sufficient to create a partnership between the 1st and 2nd respondents particularly in the face of the vehement denial by the 2nd respondent, which was not refuted by the 1st respondent. He referred to paragraphs 3 (d), (e), (f) and (g) of the 2nd respondent’s affidavit in support of his motion dated 23/10/99 in addition to the fact that the 2nd respondent’s signature does not appear on Exhibit YY2. He submitted that uncontradicted averments in an affidavit are deemed admitted and should be relied upon by the court.

Learned counsel submitted further that by virtue of the provisions of Section 657 (4), (5) and (6) of the Companies and Allied Matters Act 1990 it is mandatory that the form for the application for the registration of a business name must be signed, in the case of an individual, by him unless it is accompanied by a statutory declaration made by any person to the effect that he is a partner of the firm, in which case the form may be signed by that person only. He submitted that since Exhibit YY2 was neither signed by the 2nd respondent nor accompanied by a statutory declaration signed by him that he is a partner in Tahir Dental Clinic, the document does not contain enough evidence on its face to show that the 2nd respondent was one of the persons who applied for the registration of the clinic and has therefore not established any partnership between the 1st and 2nd respondents to warrant the 2nd respondent being made a party to the suit. On the importance of the requirement of Section 657 of the Companies and Allied Matters Act 1990 he relied on the case of: Sahabi Umaru Tsalibawa v. Hajiya Habiba (1991) 2 NWLR (174) 460 at 475-477.

Learned counsel referred to the definition of signature as contained in Osborn’s Concise Law Dictionary (8th edition) at page 64 and the New Webster’s Dictionary of English Language (International edition published in 1995 by Lexicon International- Publishers Guild Group, New York) at page 925 and submitted that the characteristics of a signature are:

(a) It must be the writing or mark of the relevant person;

(b) It must be written by the person himself; and

(c) There must be an intention to be bound by the contents of the document.

He submitted that Exhibit YY2 fails to meet these criteria because:

i) The purported signatory i.e. the 2nd respondent has denied knowing of or signing Exhibit YY2;

ii) The writing appearing on the signature column of Exhibit YY2 is not handwritten but typed out;

iii) The 2nd respondent has denied ever having any intention to be bound by the contents of Exhibit YY2;

iv) The use of the letters, “SGD” is only an indication that the document has been signed without actually showing the writing or mark of the alleged signatory i.e. the 2nd respondent;

v) The 1st respondent has admitted that the 2nd respondent was not a party to Exhibit YY2.

He urged the court to find and hold that the 2nd respondent did not sign Exhibit YY2 and is therefore not bound by its contents and has no stake in Tahir Dental Clinic.

In further argument in support of this appeal, learned counsel for the appellant submitted that the learned trial judge failed to make any reference to Exhibit YY1, the search report produced by the Corporate Affairs Commission, Kano Zonal Office, which was attached to the counter affidavit filed by the appellant and in respect of which learned counsel for the appellant addressed the court. Exhibit VY1 is at page 72 of the printed record. Learned counsel submitted that Exhibit YY1 falls under the provisions of Section 664 (2) of the Companies and Allied Matters Act and as such is admissible in evidence without further proof. He noted that Exhibit YY1 contains a certification that the names of the proprietors of Tahir Dental Clinic are Tahir M. Fadlallah and Vassar Hussein Dayekh.

He submitted that the learned trial judge failed to draw the correct inferences from the document, as it was clear that there was evidence linking the 2nd respondent with the registration of the clinic. He submitted that Exhibit VY1 alone was sufficient to warrant the 2nd respondent being made a party to the suit. Learned counsel submitted on the authority of Cash Affairs Finance Ltd. v. Inland Bank (Nig.) Plc (supra) at 580, that as the learned trial judge failed to evaluate Exhibit YY1 in his ruling, this Court can intervene and evaluate the document.

In response to learned counsel’s submissions regarding Exhibit YY2, learned counsel for the 2nd respondent submitted that the 2nd respondent had neither challenged the authenticity of Exhibits YY1 and YY2 as far as their certification by the Corporate Affairs Commission is concerned nor challenged the registration of Tahir Dental Clinic as evidenced by those documents. He argued that the 2nd respondent’s contention is that he never consented to being a partner in Tahir Dental Clinic, did not sign any forms relating to the registration of the said clinic and denied being the person referred to in the documents. He submitted that there was nothing for the court to evaluate with regard to Exhibit YY1 since the only issue in controversy before it was whether the 2nd respondent was a proprietor of the clinic or not. He submitted that the lower court was right in holding that the controversy centred on Exhibit YY2. He submitted that while Exhibit YY1 and YY2 were the documents relied upon by the court to grant the application for joinder, Exhibit YY2 was the document on which the application for mis-joinder turned. He submitted that the 2nd respondent did not at any time challenge the admissibility of Exhibit YY1. He submitted finally on this point that even if the learned trial judge overlooked or ignored Exhibit YY1 (not conceded) it has not occasioned a miscarriage of justice as far as the application to strike out the name of the 2nd respondent is concerned.

The final submissions made on behalf of the appellant in arguing this appeal are concerned with the view expressed by the learned trial judge at pages 88-89 of the printed record that in determining whether the 2nd respondent was improperly joined in the suit or not, what the court should examine is whether paragraphs 2, 3, 11, 12, 31 and 36 of the amended statement of claim have established a prima facie case. Learned counsel for the appellant submitted that at the time the application was argued the parties had adduced no evidence and therefore allegations made in their pleadings remained mere allegations. He referred to page 90 of the record where the learned trial judge queried whether the allegation in paragraph 2 of the amended statement of claim that the 1st and 2nd respondent jointly registered the name Tahir Dental Clinic with the Ministry of Health Kano and the Corporate Affairs Commission Kano area office as co-directors, without any supportive evidence, could amount to a prima facie case and submitted that it was erroneous for the court to call for supportive evidence or to apply the preponderance or balance of probability test at that stage of the proceedings.

He submitted that in the course of the ruling at pages 92-93 of the record the learned trial judge had reached definite conclusions regarding the partnership, registration and signature in respect of Tahir Dental Clinic, an exercise that ought to have awaited the hearing of the substantive suit. He submitted that a careful examination of paragraphs 2, 3, 11, 12, 31, 36 and 40 of the amended statement of claim show that there are sufficient allegations made against the 2nd respondent to warrant him being made a party to the action. He submitted that the premature application of the balance of probability and preponderance of evidence tests by the lower court has the effect of shutting the appellant out before she has had an opportunity to adduce evidence in support of her claims.

He urged us to allow the appeal.

Learned counsel for the 2nd respondent submitted that the basis for joining the 2nd respondent as a co-defendant before the lower court was Exhibits YY1 and YY2 attached to the appellant’s application for joinder and that the same exhibits were relied upon by the 2nd respondent in support of his contention that he was improperly joined in the suit. He submitted that the 2nd respondent adopted the procedure prescribed in Order 24 Rules 2 and 3 of the Kano State High Court (Civil Procedure) Rules 1988 by filing his statement of defence, raising the issue of his improper joinder in the suit therein and filing a motion on notice for the issue so raised in his pleadings to be determined at the interlocutory stage. He contended that in the circumstances where Exhibits YY1 and YY2 are found to be of little or no probative value, the appellant’s case would fail. Learned counsel submitted that the contention that the learned trial judge had delved into the merits of the substantive case in the course of determining the application before it is misconceived. He submitted that the pronouncements and findings made in the ruling do not touch on the substantive suit, wherein the appellant claims special and general damages for the alleged professional negligence of the 1st respondent. He argued that having regard to the nature of the 2nd respondent’s application, which contends that there is no reasonable cause of action against him, the lower court in determining the application, was bound to consider whether the appellant had a reasonable chance of success against the 2nd respondent. He submitted that this has not affected the substantive suit against the 1st respondent. He cited the following cases in support of this submission: Shell Petroleum Devt. Co. Ltd. v. Nwawka (2001) 10 NWLR (Pt.720) 64, (2001) FWLR (47) 1353; Labode v. Otubu (2001) 7 NWLR (Pt. 712) 256, (2001) FWLR (43) 207 at 217; Ayorinde v. Oni (2000) 3 NWLR (Pt.649) 348, (2000) FWLR (3) 445 at 447; Akindipe v. C.O.P. (2000) 8 NWLR (Pt.669) 376, (2000) FWLR (Pt.5) 709 at 712; Maidara v. Halilu (2000) 13 NWLR (Pt.684) 257, (2000) FWLR (19) 433 at 440; Military Administrator, Benue State v. Abayilo (2001) 5 NWLR (Pt.705) 19, (2001) FWLR (45) 602 at 605.

He submitted further that it is trite law that only a person against whom there is a cause of action or whose presence is necessary for determining the issue in controversy should be joined as a party to an action. He submitted that the test is whether it is possible for the court to adjudicate upon the case set up by the plaintiff without necessarily joining a particular party. He referred to: Atolayan v. Ogunrinde (1990) 1 NWLR (Pt.127) 369; Ugorji v. Onwu (1991) 3 NWLR (Pt.178) 117.

Learned counsel submitted that a careful examination of the cause of action as set out by the appellant before the lower court shows that the dispute is between the appellant and the 1st respondent and that the 2nd respondent was only joined in the suit because of the appellant’s belief that he had a stake in Tahir Dental Clinic. He submitted that the dispute could be conveniently adjudicated upon without the 2nd respondent being joined as a party. In conclusion he urged this Court to dismiss the appeal.

I shall set out below paragraph 3 (d) – (k) of the affidavit in support of the 2nd respondent’s application dated 23/9/99 and paragraphs 7-10 of the appellant’s counter affidavit thereto, which I consider relevant to the determination of this appeal. Paragraph 3 of the supporting affidavit deposed to by Miss Lukayatu Ahmed, secretary in the law firm of J.K. Bature & Co. reads thus:

“3.That Tahir M. Fadlallah informed me in my office at No.2, Beirut Road, Kano on 23rd October 1999 at about 11.46 a.m. of the following facts which I verily believe to be true and correct:

(d) That he never at all material times relevant to this suit, met with, had any dealings of any nature with, presented to or advices (sic) the plaintiff to go to the first defendant for dental medical treatment.

(e) That he never at all material times relevant to this suit applied for, sought for, consented to or signed any documents directly or indirectly regarding the registration of Tahir Dental Clinic.

(f) That he is not and has never been a Partner in the entity known and called Tahir Dental Clinic.

(g) That the Plaintiff joined him in this suit as a Co-defendant because she believed he is one of the Partners in Tahir Dental Clinic.

(h) That he was not a party to all that might have transpired between the Plaintiff and the First Defendant and ought not to have been joined as a party in this suit.

(i) That no cause of action has been alleged against him other than alleging that he is a partner in Tahir Dental Clinic.

(j) That the plaintiff’s case is glaringly against the first defendant and that neither the plaintiff nor the first defendant will be prejudiced if this application is granted.

(k) That it will be in the interest of justice to grant this application.”

(Emphasis supplied)

In paragraphs 7-11 of the counter affidavit it is averred:

7. That the decision of the Plaintiff/Respondent to join the 2nd Defendant/Applicant was not a figment of her own speculation. And the joinder of 2nd Defendant/Applicant is necessary for the effectual and complete determination of this suit.
8. Mr. Yaqub Omotoso, one of the counsel in our office informed me at about 5.00 p.m. on Monday 15th November 1999 at our office that he found out from the search conducted at the Corporate Affairs Commission that the 2nd Defendant/Applicant Mr. Tahir M. Fadlallah and the 1st Defendant/Respondent, Mr. Yasser Dayekh jointly applied for Registration and filled the Corporate Affairs Commission Forms as proprietors of Tahir Dental Clinic with the main object of offering Dental Health Care service at No. 1A Tukur Road Mukalh Link Nassarawa Kano. The clinic was duly registered on the 3rd day of December, 1996 with Registration No. KN-009323. A certified true copy of the search report issued by the Corporate Affairs Commission Kano Zonal office is attached to this counter affidavit and marked Exhibit YY1.
9. Mr. Yaqub Omotoso further informed me at the same time and place that he also discovered at the Corporate Affairs Commission that it was the 2nd defendant/applicant that personally approached the Corporate Affairs Commission Zonal office Kano for the registration of the name Tahir Dental Clinic as a Business Name that the Application form for that purpose was personally collected by the 2nd defendant/applicant and signed for collecting the same and he also appended his name and signature along with the 1st defendant as directors and/or proprietors of Tahir Dental Clinic. A certified true copy of Corporate Affairs Commission Form 1 obtained by the 2nd defendant/applicant and jointly filed by the defendant for the purpose of registration of the said clinic is attached to this counter affidavit and marked Exhibit YY2.
10. It is untrue that no cause of action has been disclosed against the 2nd defendant/applicant and that the plaintiff’s claim is only directed against the 1st defendant/respondent in this suit.
11. The plaintiff/respondent has set out her claim against the 2nd defendant/applicant along with the 1st defendant in her both (sic) amended writ of summons and the amended statement of claim filed on the 13th day of October 1999 pursuant to the order of this Honourable Court dated 12th day of October 1999. The plaintiff/respondent shall rely on the same amended writ of summons and the amended statement of claim in opposing this application.”

(Emphasis supplied)

The relevant portion of the appellant’s amended particulars of claim at page 51 of the printed record is as follows:

”The 1st and 2nd Defendants jointly owned and registered TAHIR DENTAL CLINIC with the Ministry of Health Kana and the Corporate Affairs Commission and purported to carry on business of Dental services, treatment and care to members of the public in Kano at No. 1 Tukur Road, Nassarawa Quarters. And the 1st defendant is presented by the defendants as the qualified and registered Dentist operating the clinic.” (Italics supplied)

Paragraphs 2, 3, 11, 31, 36 and 40 of the amended statement of claim are also relevant and are reproduced hereunder:

2. “The 1st and 2nd defendants jointly registered the name TAHIR DENTAL CLINIC with the Ministry of Health Kano and the Corporate Affairs Commission Kano Area Office as co-directors and purported to be offering dental services, treatment and care to members of the public.
3. The 1st defendant with the knowledge and consent of the 2nd defendant presented himself to members of the public in Kano as a qualified dentist registered and licensed to administer and practice Dentistry in Nigeria by the Medical and Dental Council of Nigeria.
4. The plaintiff avers that the 1st defendant with the knowledge and consent of the 2nd defendant presented himself to members of the public as a registered Dentist, qualified to practice Dentistry in Nigeria whereas he is not registered as such, nor has he taken and passed the prescribed examination by the Medical and Dental Council of Nigeria.
5. The plaintiff avers that at all times material to this suit the defendants made representations to her that the 1st defendant is a qualified and registered dentist competent to practice Dentistry in Nigeria whereas he is not. The plaintiff would rely on the appointment card issued to her by the defendants’ clinic, prescription papers issued to her by the 1st defendant, receipt of drugs purchased by her, drawings made by the 1st defendant explaining the treatment to be carried out and any other document material and relevant to the issues raised in this statement of claim. The defendants are hereby put on notice to produce the original copies of these documents at the trial.
6. The plaintiff avers that the Defendants are not qualified to seek for registration of TAHIR DENTAL CLINIC, nor is the 1st defendant qualified to administer or practice Dentistry in Nigeria, but professes himself with the knowledge and/or consent of the 2nd defendant to be competent and qualified to do so and purported to be doing so at the said TAHIR DENTAL CLINIC.
7. The plaintiff further avers that as a result of the disability which the defendants particularly the 1st defendant had caused her, she had to procure and wear a cosmetic denture which is not clearly suitable for her purpose pending the time when she can make a denture that would enable her chew and eat food of the nature she likes but this has caused her considerable expense.”

The remaining 34 paragraphs of the amended statement of claim make specific allegations of professional negligence against the 1st respondent alone.

It is clear from the paragraphs of the supporting affidavit and the counter affidavit reproduced above that the issue of whether the 2nd respondent ought to have been made a party to the suit or not revolved around Exhibits YY1 and YY2. In other words the appellant opposed the application for the 2nd respondent’s name to be struck out on the ground that she had information, obtained from the Corporate Affairs Commission Kano Zonal Office, that the respondents jointly applied to register and did register the business name Tahir Dental Clinic for the purpose of rendering dental health services to members of the public. Therefore what was crucial for the determination of the application was whether the 2nd respondent was one of those who applied for the registration of the clinic as alleged.

The first important factor to bear in mind in this regard is that at the hearing of the application the 1st respondent who is alleged to be the 2nd respondent’s partner did not file a counter affidavit challenging the 2nd respondent’s averments that he had nothing to do with the registration of the clinic and that he was not a partner in the said clinic. Not only that, learned counsel representing the 1st respondent aligned himself with the submissions made in support of the application and joined his voice to that of the 2nd respondent asking that his name be struck out. It seems to me that in the circumstances of this case the 1st respondent was in the best position to state whether he and the 2nd defendant jointly registered the business name, TAHIR DENTAL CLINIC. Furthermore, as pointed out by learned counsel for the 2nd respondent, it is well settled that averments in an affidavit that are not denied are deemed admitted and the court is entitled to act on them. See: Ajomale v. Yaduat NO.2 (1991) 5 NWLR (Pt.191) 266.

The next issue to consider is Exhibit YY2. Learned counsel for the appellant challenged the findings of the learned trial judge at pages 92-93 of the record where he held that there is no signature on Exhibit YY2 to show that the 2nd respondent was one of those who applied for the registration of the clinic, that the name “Tahir” does not appear on the last page of the document where the partners are expected to sign and that on the first page of the document the hand written but unsigned endorsement that the document was collected by one “Tahir” without more does not suggest that the person who collected the document was a partner in the firm or one of those who applied for its registration.

Now Section 657 (1) and (5) (b) of the Companies and Allied Matters Act 1990 provides inter alia:

(1) “Every firm, individual or corporation required under this PART of this Act to be registered shall, within twenty-eight days after the firm, individual or corporation commences the business in respect of which registration is required or within three months of the coming into operation of this Act, furnish the Registrar at the registry of the State in which the principal place of business of the firm, individual or corporation is situated, a statement in writing in the prescribed form, signed as required by this section and containing the following particulars .

(5) A statement furnished in accordance with subsections (1) to (4) of this section shall –

(b) in the case of a statement furnished by a firm, be signed by each individual who is a partner and by a director or the secretary of each corporation which is a partner.”

In the case of: Tsalibawa v. Habiba (1991) 2 NWLR (Pt.174) 461 at 480-481 H-A, His Lordship Ogundere, JCA (as he then was) had this to say on the importance of a signature on a document (in that case the document under consideration was the judgment of the trial court):

“It is common knowledge that a person’s signature, written names or mark on a document, not under seal, signifies an authentication of that document that such a person holds himself out as bound or responsible for the contents of such a document: R v. Kent Justices L.R. 8 Q.B. 305. In Morton v. Copeland 16 C.B. 535, it was held that signature does not necessarily mean writing a person’s Christian and surname, but any mark which identifies it as the act of the party.” (Italics mine)

I have examined Exhibit YY2 very carefully. I find that the learned trial judge was correct when he observed that the name “Tahir” does not appear on the last page of the document (at page 76 of the record). What is typed in the column for the names of the partners is “T.M. Fadlallah”. I also observe that there is no signature against either of the names that appear in that column. In front of the name “T.M. Fadlallah” are the letters “Sgd”. There is however no mark of any kind on the portion of the document reserved for signatures.

By virtue of Section 657 (1) and (5) (b) of the Companies and Allied Matters Act the signature of a partner on the application form for the registration of a business name is a mandatory requirement. Exhibit YY2 was certified as a true copy of the original application form. The only conclusion that can be drawn from this fact is that the 2nd respondent did not sign the original form. Since the 2nd respondent denied being a party to the document, the only proof would have been his signature.

Where a trial court has satisfactorily performed its function of evaluating the evidence before it and correctly ascribing probative value thereto, an appellate court will neither intervene nor interfere with the trial court’s findings. See: Cash Affairs Finance Ltd. v Island Bank (Nig.) Plc. (2000) 5 NWLR (658) at 580 C.D; Fashanu v. Adekoya (1974) 6 S.C. 83; Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360; Shell B.P. v. Cole (1978) 3 S.C. 183. In the instant case there is clearly no signature of the 2nd respondent on Exhibit YY2. There is therefore no reason to interfere with the findings of fact of the learned trial judge in that regard.

I shall now consider Exhibit YY1. It is a search report issued by the Corporate Affairs Commission, Kano Zonal Office in respect of the registration of Tahir Dental Clinic. It states among other things the names of the partners as Tahir M. Fadlallah and Yassar Hussein Dayekh. Learned counsel for the appellant made very heavy weather of exhibit YY1, arguing that the learned trial judge failed to evaluate it. He relied on Section 664 (2) of the Companies and Allied Matters Act to contend that the document is admissible without further proof.

In the first place, as submitted by learned counsel for the 2nd respondent, there was no challenge to the admissibility or authenticity of the document. The submission that it is admissible without further proof is therefore neither here nor there. The admissibility of a document and the evidential value to be ascribed to it are not the same thing. The fact that Exhibit YY1 is admissible in evidence without further proof is not a determining factor of the weight to be attached to it. In the case of: Nwankwo v. Nwankwo (1995) 5 NWLR (Pt.394) 153 at 171 A-B the Supreme Court per Iguh, JSC held that the fact that a business enterprise is registered as a firm or unincorporated body of two persons raises, as between the two parties a presumption that the business is their joint business. He held that the presumption is however a rebuttable one and either of the parties is entitled to adduce evidence to establish that the business belongs to only one of them.

In my view there was nothing to evaluate in Exhibit YY1. It had not been challenged. Furthermore the foundation of exhibit YY1 was exhibit YY2. The presumption that both respondents applied for the registration of Tahir Dental Clinic had been rebutted, first by the failure of the 1st respondent to deny the averments of the 2nd respondent in his supporting affidavit that he was not involved in the registration of the clinic and was not a partner therein, and secondly by the absence of the 2nd respondent’s signature on exhibit YY2. The appellant has failed to show that the non-evaluation of exhibit YY1 has occasioned a miscarriage of justice.

In his final submissions in respect of this appeal, learned counsel for the appellant referred to pages 88-89 of the record where the learned trial judge stated:

“The argument of the applicant counsel is that the name of the 2nd defendant should be struck out because he was improperly joined. He said that unless where it can be established that the 2nd defendant is a partner to the 1st defendant or that he is in partnership business with him before the 2nd defendant applicant can be said to be an interested party and who could be joined as a defendant to the claim against the 1st defendant.

The counsel contended further that exhibit YY2 which the plaintiff respondent is placing reliance upon as making the applicant a party is of no evidential value since none of the two parties signed it. Although the learned SAN disagreed and also contended that what the law requires of the plaintiff to establish for a joinder is a prima facie case and the plaintiff has successfully done this through her paragraph 2, 3, 11, 12, 31, 36 and 40. I want to agree with the noble submissions of the learned SAN but what the court should examine is whether those paragraphs of the amended statement of claim have in fact and law established prima facie case to have the applicant joined as a party.” (Italics and emphasis supplied)

Learned counsel challenged the underlined portion of the record on the ground that it was premature to call for supportive evidence or to apply the balance of probability test at that stage of the proceedings. He also argued that the learned trial judge had made findings in respect of the substantive suit in the course of determining the application before him.

It must be borne in mind that at the time the application that gave rise to the ruling appealed against was filed, the 2nd respondent had already been made a party to the suit by an earlier order of the court.

What the court was called upon to determine therefore was whether he had been wrongly joined as a party. Learned counsel for the appellant at page 15 of his brief correctly submitted that the central issue before the court below was whether or not the 2nd respondent was concerned and/or connected with Tahir Dental Clinic and its registration and whether he is a co-director, proprietor and/or partner. In reaction to the 2nd respondent’s averments that he did not participate in the application for or registration of Tahir Dental Clinic, the appellant filed a counter affidavit in which she relied on Exhibits YY1 and YY2 attached thereto to support her conviction that the 2nd respondent was in fact a partner in the business. The learned trial judge found that in the absence of the 2nd respondent’s signature on Exhibit YY2 there was nothing before him to suggest that the 2nd respondent was one of those who applied for the registration of the clinic or that he was a partner in the business. I have in the course of this judgment held that there is no reason to disturb that finding.

It is pertinent at this juncture to consider the position of the law regarding the joinder of parties in an action. The law is settled that a person is a necessary party to an action where it is desirable that he should be bound by the result and where the question in controversy cannot be effectually and completely settled unless he is a party. See: Peenok Investments Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1.

The principles guiding the joinder of parties are as follows:

1. Is the cause or matter liable to be defeated by the non-joinder?
2. Is it possible for the court to adjudicate on the cause of action set up by the plaintiff unless the third party is added as a defendant?
3. Is the third party a person who ought to have been joined as a defendant?
4. Is the third party a person whose presence before the court as defendant will be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter?

See: Green v. Green (1987) 3 NWLR (Pt.61) 480, (1987) 2 N.S.C.C. Vol. 18 (Part II) 1115 at 1127; Uku v. Okumagba (1974) 1 ALL NLR (Part 1) 475; Peenok Investments Ltd. v. Hotel Presidential Ltd. (supra); Ugorji v. Onwu (1991) 3 NWLR (Pt.178) 177. I am of the view that the principles enunciated in these cases are equally relevant to the mis-joinder of parties.

A careful look at paragraphs 2, 3, 11, 31, 36 and 40 of the amended statement of claim (reproduced earlier in this judgment) show that the averments are all based on the contention that the 1st and 2nd respondents are partners in Tahir Dental Clinic. This is particularly relevant having regard to the fact that all the other paragraphs of the amended statement of claim make specific allegations of professional negligence against the 1st respondent alone. The statement of claim was amended after a search conducted at the Corporate Affairs Commission Kano Zonal Office revealed that Tahir Dental Clinic was allegedly registered by the 1st and 2nd respondents. It follows therefore that where it is shown that the 2nd respondent is not a partner in the business, the foundation upon which paragraphs 2, 3, 11, 31, 36 and 40 of the amended statement of claim rest would crumble and accordingly his joinder as a co-defendant would have been improper. In the instant case I would answer questions 1, 3, and 4 of the guiding principles for the joinder of parties set out above in the negative and would answer question 2 positively.

Order 11 Rule 5 (2) and Rule 16 of the Kano State High Court Civil Procedure Rules 1988 provide:

5 (2) “The court may at any stage of the proceedings and on such terms as may appear to the court to be just, order that the name of any party or parties whether as plaintiffs or defendants, improperly joined be struck out.

(16) Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court or Judge in Chambers at any time before trial by motion or summons or in a summary manner at the trial of the action.”

(Emphasis mine)

It is my considered view that the learned trial judge was correct, in light of his findings regarding exhibit YY2 to consider whether paragraphs 2, 3, 11, 31, 36 and 40 of the amended statement of claim disclosed a prima facie case against the 2nd respondent. It is not correct, as contended by learned counsel for the appellant that in the process of doing so, he made findings in respect of the substantive suit. He rightly held on the basis of the affidavit evidence and pleadings before him, that the 2nd respondent had been improperly joined in the suit. I find no reason to disturb his findings.

In conclusion the sole issue for determination in this appeal is resolved against the appellant and in favour of the 2nd respondent. I find no merit in the appeal and it is hereby dismissed. The ruling of the Kano State High Court per Saka Yusuf, J in Suit No. K/582/99 delivered on 6/3/2000 is hereby affirmed.

I make no order for costs.

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Other Citations: (2006)LCN/2028(CA)