Akin Ojo V. Yisa Eyinfunmi Oseni & Anor

LawGlobal-Hub Lead Judgment Report

PHILIP NNAEMEKA-AGU, J.C.A.

This interlocutory appeal arose from the joinder of the appellant as a party in a suit in which the first respondent was plaintiff and the second respondent, the defendant. The plaintiff did not want to sue the appellant, and the appellant did not consent to his joinder. In the substantive suit, the plaintiff (1st respondent) claimed against the defendant (2nd respondent) as follows:

“The plaintiff’s claim against the defendant is for the sum of N140,000.00 being money payable by the defendant to the plaintiff as per a loan agreement dated 25th of November 1977. The defendant has refused and/or neglected to pay the said sum of N140,000.00 despite repeated demands.”

The first respondent’s statement of claim was a straight-forward pleading showing how the debt arose. The second respondent amended her statement of defence and in the amendment pleaded fraud, non est factum, and unenforceability. She also counter-claimed against the 1st respondent for a declaration that the loan agreement was void, an order cancelling or setting it aside and an injunction. The gist of her defence was that the written agreement being relied upon to sustain the claim was fraudulent in that it was the appellant who acted as solicitor for both sides and fraudulently procured her signature on the false documents. It was also her case that the documents she was told she was signing were drafts of some deeds of conveyance, and not a loan agreement between the 1st and 2nd respondents. During the trial the appellant as solicitors for the parties gave evidence on behalf of the first respondent. He denied the fraud. When he was under cross-examination on behalf of the second respondent, the learned trial judge himself queried the propriety of continuing the trial without making the appellant a party in view of the allegations of fraud made against him. Also some of the questions put to the appellant about the fraud were disallowed by the learned judge on the ground that the particulars of fraud as pleaded were at variance with the questions being asked. Thereafter the second respondent brought an application to the court for leave to amend her statement of defence and counter-claim in order to plead fresh and different particulars of fraud. This was allowed. Leave was also given for her to join the appellant as a co-defendant. It was the granting of the application that has led to this appeal by the appellant.

The grounds of appeal were directed against the joinder of the appellant as a co-defendant and leave to amend to file fresh and different particulars of the fraud relied upon. For the appeal, only the appellant and the 2nd respondent filed their briefs.

The issues for determination as framed by the appellant appeared to me to be rather diffuse running as it does to 10 “issues”. But the issues as framed by the learned counsel for the second respondent appeared to have left out an important aspect of the case, that is, in relation to the intervention by the learned trial judge. I believe, however, that the issues canvassed by the parties will be most adequately reflected by a combination of the first issue as framed by the appellant and the three issues, framed by the respondent. The issues for determination in the appeal are, therefore, as follows:

“(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.

I shall deal with the complaint against the joinder of the appellant first. The appellant pointed out that it was the learned Judge who suggested his being joined as a co-defendant on the ground that certain allegations of fraud and impropriety were made against him, even though no relief was claimed against him either in the original claim or in the 2nd respondent’s counter-claim. He pointed out that both the 1st respondent (plaintiff) and himself opposed the joinder. Giving his reasons for the joinder, the learned Judge stated:

“In this case even if it can be said that the party sought to be joined, that is Mr. Akin Ojo, is not “a necessary” party as no relief whatsoever is sought against him by the Plaintiff, on the basis of his writ and statement of claim (which is a simple claim for N140,000.00 debt alleged to be due from the defendant), I am convinced on the authority of Peenok Investment Limited v. Hotel Presidential Ltd. (1982) 12 S.C. 1 that it is desirable to join Mr. Akin Ojo as a party herein. It is for those reasons only that I exercise my discretion. I order accordingly. As the matter of joinder was first raised by me suo motu on 28th May, 1985………………”

The appellant submitted that the joinder was wrong because he was not a necessary party: Amon v. Raphael Tuck & Sons Ltd. (1956) 1 Q. B. 357. He also cited Hood Barrs v. Frampton Knight & Clayton (1924) W.N. 287 Citing Lajumoke v. Doherty (1969) N.M.L.R. 292, he submitted that courts are reluctant to join as a defendant a person who is not an intervener and a person whom the plaintiff does not wish to sue, especially as the matter in dispute can be effectually and completely adjudicated upon without the joinder. Furthermore the appellant and the original defendant have no common interest. He submitted further that it was wrong to have joined him as the effect was, as it were, to make him to defend the original claim and the counter-claim at the same time. Finally he submitted that the instant case is distinguishable from Peenok’s Case (supra).

In reply the learned counsel for the respondent submitted that in so far as the court was required to determine the fraud or lack of it of the appellant as a necessary issue before the defence of the 2nd respondent can be found to have been established or not, it is desirable to join him as a party so that that issue would not be decided behind his back. He cited the decision of Eso, J.S.C. in Peenok’s Case that joinder should be ordered to bring in parties who claim interest in the case or who are likely to be affected by the result. He submitted that the principle of audi alteram partem dictated that the appellant should be joined. Relying on the dicta of Devlin, J. in Amon v. Raphael Tuck & Sons Ltd. (1956) 1 Q.B. 357, at p.386 he submitted that it did not matter that appellant would not be directly affected by the order in the action as originally constituted. The important thing was that he must show that he could not effectually set up a defence unless the appellant was joined. He submitted that calling a person as a witness does not obviate the necessity or desirability of his being joined as a party.