Robert Nnaji V. Joseph Ede (1996)

LawGlobal-Hub Lead Judgment Report

ACHIKE, J.C.A.

The original suit for declaration of title to land etc. was between the plaintiffs, (not parties to this appeal), and the 1st defendant/respondent. The 1st defendant/respondent’ s statement of defence contained a counter-claim against the plaintiffs wherein he claimed an extensive area of land greater than the one plaintiffs laid claim to which, in fact, affected the interest of the appellant who successfully sought to be joined as a co-defendant, to contest the 1st defendant’s counter-claim. Co-defendant/appellant, having been joined, also filed his pleadings. The joinder was ordered by Ubaezonu J, as he then was. The three parties thereafter exchanged pleadings and the suit was set down for hearing.

The second stage commences with the application of 1st defendant/respondent in this appeal praying the court that co-defendant/appellant be made in the above suit a plaintiff or in the alternative a defendant in a different or separate suit. After hearing counsel’s submissions, the trial judge now presided over by Onyia, J struck out the name of the appellant from the suit. This appeal is brought against the striking out of the name of the appellant from the suit. The appeal, therefore, as earlier noted, is strictly between co-defendant herein, as appellant, and 1st defendant herein, as respondent.

Appellant identified these three issues for determination, namely;
(i) Was the lower court competent or within jurisdiction to review an earlier order of joinder it had made on a subsequent application of a party to the suit?

(ii) Was the lower court competent to make an order that was not prayed for by a party to the suit without first asking the parties to address the court specifically on that issue?

(iii) Having regard to the stage of the proceedings in this suit was it right for the lower court to limit itself to the affidavit in support of the motion without regard to the pleadings of the parties in considering the application before him.

For the respondent, three issues were formulated by his learned counsel, to wit:
(1) Is the presence of the applicant as a co-defendant in the above suit necessary for the just determination of the plaintiffs’ claim? If the answer to the above question is no, was the applicant’s name rightly struck out as a defendant from the above suit.

(2) Could the plaintiffs’ claim as framed be properly determined without the joinder of the applicant as a defendant? If the answer to this second question is no, was the applicant’s name rightly struck out as a defendant at the application of the respondent.

(3) By virtue of Order 3 Rule 7 High Court Rules 1988 Anambra State applicable to Enugu State is the lower court right to revisit an earlier order it made when it (Lower Court) discovers that such order was wrong and cannot stand having regard to all the circumstances of that case.

Now a word about postulation of issues by parties’ counsel. The appellate court may suo motu or at the invitation of either or both counsel examine the issues for determination as postulated by the parties’ counsel. This is a matter of law.
Thus where the appellant fails to formulate issues for determination there is no basis for considering the appeal and the same is dismissed. Furthermore, where the issues as formulated by the parties are inelegant the court is obliged to formulate issues as may be warranted, having regard to the grounds of appeal. If on the other hand the issues formulated by the respondent are unsatisfactory, the same may be struck out; but such parts of the arguments in the brief or in oral submission which have relevance to the appellant’s issues are given consideration.
Now we shall have a look at some of respondent’s issues for determination.

Issues Nos. 1 and 2 seek to question whether the joinder of appellant as co-defendant was properly done or whether it was a misjoinder. Be it noted that there is no cross-appeal at the instance of the respondent so the appeal must be fought only on the appellant’s grounds of appeal. I have closely examined the grounds of appeal formulated and filed by the appellant. I make bold to say that issues Nos. 1 and 2 do not arise from any of the grounds of appeal. These issues are bad in law and accordingly, are struck out. I shall adopt the appellant’s issues for the consideration of this appeal.
Now to the Issue No. 1 which questions the competence of the right of the lower court to review its earlier order of joinder it had made on a subsequent application of a party to the suit. For the appellant, it was submitted that the lower court had no jurisdiction to entertain the application and that such a review of the joinder of the appellant as a third party to this suit amounts to the court sitting on appeal over its earlier decision. Such an exercise, he contends, is the exclusive preserve of an appellate court.

In Issue No.2, counsel contends that the learned trial judge was in error to grant to the respondent a relief not sought by him. According to counsel, respondent’s application prayed for appellant herein to be made a plaintiff or in the alternative defendant in a different or separate suit and yet, and contrary to that prayer, the trial court ordered that appellant’s name be struck out without hearing the appellant on the order it made.
Finally, counsel submits that the learned trial Judge appeared not to have had a good grasp of the issue before the court having regard to the affidavit evidence and the parties’ pleadings already placed before the court when he (the trial Judge) observed that plaintiff on record had no substantial relief against the 2nd defendant, i.e., the appellant herein. Arguing the issues together, respondent’s learned counsel submitted that since it was improper to join co-defendant as a party to the suit it was perfectly right for the court to be invited to remove a party wrongly joined as a co-defendant, particularly if the interest of the person joined is adverse to that of the existing party. Counsel relies on Alhaji J. Aromire & Ors. v. Awoyemi (1972)1 All NLR (Pt. 1) 101 and Joseph Asaboro Ltd v. State Agric Credit Corporation and Life Flour Mills Ltd (1974)4 NMLR (Pt.11) 483. He further submits that it is within the jurisdiction of the lower court to vary, review or rescind orders previously made by it provided it is made before judgment is delivered. In support of this proposition, counsel relies on Alapa v. Sanni & Ors (1967) NMLR 397, Order 16 Rule 14 High Court Rules 1 and Udeogu v. Okereke & Ors (1966/67) 10 ENLR 123 and again submits that such powers of review amount to review or variation of its earlier order and do not amount to sitting on appeal over its earlier decision. Finally, counsel submits that the court was right to limit itself to the relief sought in the motion.

The controversy in this case lies within a very narrow margin. Put on briefly, the main thrust of the appeal is whether Onyia J. was competent to set aside an interlocutory order of joinder of appellant, (as 2nd defendant, herein appellant  made by Ubaeronu J. (as he then was). Both judges were, at all material times, judges of co-ordinate jurisdiction. To avoid unnecessary repetition, I intend to consider all the issues for determination together.

The posture of the learned trial Judge, Onyia, J. is rooted in the fact that since the plaintiff on record has no claim against the appellant herein, it was erroneous to have allowed appellant to be joined in the suit. Thus relying on Ige v. Farinde  (1994) 7 NWLR (Pt.354) 42; (1994) 7-8 SCNJ 284 at 286-287, and observing that the plaintiff did not dispute any land case with appellant nor did the latter file any plan in the land suit, the lower court judge expressed himself thus in his ruling on the respondent’s motion:
“In the circumstances of the present case, I have my doubts if the 2nd defendant (appellant herein) had been the right person to be joined when I did on his application. (emphasis mine).