Total Nigeria Plc V. Delmar Petroleum Company Ltd. (2002)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

The respondent company sued the appellant company, claiming the sum of N1.6 million, which the appellant debited to the account of the respondent, kept by the appellant in an oil business. The suit was brought before the High Court of Port Harcourt. It was commenced under the Undefended List Procedure, but was subsequently transferred to the General Cause List.

The appellant brought an application, to join Alhaji Kam Selem Shetima and Amsam Incorporated Limited ,as 3rd party for the purpose of indemnifying the appellant, under Order 11 rule 17 of the Rivers State High Court (Civil Procedure) Rules, 1987. The application was refused and the appellant appealed to this court and in accordance with the rules of court, filed a brief and formulated two issues for determination as follows:

“(1) Was the exercise of his discretion by the learned trial Judge of refusing to join the third parties, Alhaji Kam Selem Shetima and Amsam Incorporated Ltd. judicious and judicial in the circumstance?

(2) Was the learned trial Judge right in his conclusion that the appellant had not made out a prima facie case to entitle it to the grant of the application for joinder under Order 11 rule 17 High Court (Civil Procedure) Rules, 1987 of Rivers State?”

The respondent also filed a brief of argument and adopted the issues formulated by the appellant.

The facts of this case are relatively simple. The appellant granted N10 million facility to Alhaji Kam Selem Shetima and Amsam Incorporated Limited. They were unable to pay the full amount and the appellant, who acted under the mistaken belief that the respondent company was owned by Alhaji Kam Selem Shetima and Amsam Incorporated Limited debited the account of the respondent company. The respondent protested and the appellant issued some cheques to reduce the indebtedness, leaving a balance of N1.6 million. When the appellant was sued for the recovery of the balance, it then brought an ex-parte application praying the court for third party proceedings for the purpose of bringing in Alhaji Kam Selem Shetima and Amsam Incorporated Limited to indemnify it.

The learned Counsel for the appellant argued in his brief under issue 1 that the trial Judge did not exercise his discretion judiciously and judicially in refusing to grant the application. He said that there was enough affidavit evidence before him to show that the 1st party sought to be joined in the 3rd party proceedings misrepresented to the appellant that he owned the respondent company as well as Amsam Incorporated Limited and that was why the debt of one was taken from the account of the other.

The learned Counsel for the respondent argued that the trial Judge had earlier refused an application to join the parties sought to be joined in the 3rd party proceedings as co-defenders with the appellant. It was therefore, an abuse of court process for the appellant to renew a similar application before the same court. He said that the appellant had not shown sufficient reasons from the evidence before the court that, Alhaji Kam Selem Shetima and Amsam Incorporated Limited are necessary parties to be joined.

It is trite law that a Court of Appeal does not usually interfere in matters of the exercise of discretion by a lower court provided that such exercise is judicious and judicial. See the case of Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628. However, when such exercise is not in consonance with the facts before the court and is not based on good reasoning and correct principles, the appeal court may interfere.

From the affidavit evidence before the trial court, especially the various exhibits attached to the affidavit of the appellant, it was clear that Amsam Incorporated Limited did not deny its indebtedness to the appellant, but was asking for time to clear the debt. It was as a result of this debt that the appellant debited the account of the respondent. What the appellant wanted to do was simply to bring in the 3rd parties to compensate it for any liability that would be found against it in favour of the respondent. This clearly accords with Order 11 rule 17 which reads:

“17(1)Where in any action a defendant claims as against any person not already a party to the action (in this rule called ‘the third party’)

(a) that he is entitled to contribution or indemnity; or

(b) that he is entitled to any relief or remedy relating to, or connected with the original subject-matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or

(c) that any question or issue relating to or connected with the said subject-matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant and the third party or between any or either of them; the Court or a Judge in Chambers may give leave to the defendant to issue and serve a third party notice.”

It is my view that, the trial court was wrong in refusing the application. The respondent has nothing to lose from bringing in the third parties. A lot of time would have been saved and the main case would have been disposed of but for this interlocutory appeal.

The fact that the trial court had earlier refused to join Alhaji Kam Selem Shetima and Amsam Incorporated Ltd., as co-defendants with the appellant was no justification for refusing to bring them in as third parties. In third party proceedings, the defendant is simply saying, if I am liable to the plaintiff, the third party is liable to me. The plaintiff may not have any claim against the 3rd party, but the defendant has.

My resolution of the first issue disposes also of the second issue because there was abundant material before the lower court to justify granting the application sought by the appellant for 3rd party notice. Consequently, I allow this appeal and set aside the ruling of the trial court delivered on the 29th February, 2000. In its place, I hereby, grant leave to the defendant/appellant to issue and serve 3rd party notice on Alhaji Kam Selem Shetima and Amsam Incorporated Limited. I award costs of N5,000.00 against the respondent in favour of the appellant.

Other Citations: 2002)LCN/1243(CA)