De – Jese Nigeria Limited V. Wema Securities & Finance PLC & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Lead Ruling)

This is an application by motion on notice brought pursugnt to Order 4 Rule 1, Order 7 Rule 1, 4 & 10 of the Court of Appeal Rules 2007, Section 15 of the Court of Appeal Act and under the inherent jurisdiction of the Court by the interested party praying for leave of the Court to apply to join, extension of time within which to apply for leave to join and an order joining Chief Bartholomew Azuka Umeh as an interested party in this appeal.

The application was brought on the following grounds:

1. The person sought to be joined is the bona fide purchaser in good faith of the property the subject of this appeal from the respondent.
2. As at the time of the purchase of the property by the party sought to be joined there was no pending suit from the appellant or any person on the property.
3. By a ruling delivered on the 6th day of February, 2007 by Hon. Justice Alogba of the Ikeja High Court in suit no. ID/1171/2005 between the appellant herein as the 2nd respondent and the party sought (sic seeking) to be joined as claimant the Honourable Court confirmed the sale of the property to the party sought (sic seeking) to be joined by the respondent herein.
4. The party sought (sic seeking) to be joined has obtained the Governor’s consent to the transaction i.e. sale of the property to him.
5. Any judgment delivered by this court will affect the right of the party sought (sic seeking) to be joined in this matter.
6. The party sought (sic seeking) to be joined is in lawful possession of the property and by a ruling of the Ikeja High Court in suit No.ID/1171/2005 delivered on the 6th day of October, 2008 the court further put the party sought (sic seeking) to be joined into possession.
7. The party sought (sic seeking) to be joined would be bounded (sic bound) by the judgment to be obtained in this suit.
8. The party sought (sic seeking) to be joined is an interest (sic interested) party in this suit being the legal owner of the property which was purchased after the order of foreclosure was made which order is the subject of the appeal herein.

The application is supported by an affidavit of 26 paragraphs deposed to by the party seeking to join with four exhibits. In opposition to the application, the appellant/respondent filed a counter-affidavit of 8 paragraphs.

The gist of the applicant’s case as deduced from his affidavit is that the respondent herein Wema Securities Ltd advertised the property, the subject of this suit for sale. The applicant averred that he was informed that the appellant herein used the property as collateral for a loan. He defaulted in repaying the loan and an order of foreclosure was obtained against him. The applicant bought the property and after execution of the deed of assignment, the respondent put him into possession. When he noticed an encroachment on the property he commenced an action against the appellant, the respondent and one other at the High Court Ikeja. In the course of the proceedings, he found out that the appellant was challenging the order of foreclosure granted to the respondent by the High Court. Before he could apply to be joined in the suit in the lower court, the appellant had already filed this appeal. He claimed he later got information that that the appellant and the respondent were colluding to set aside the sale of the property to him. This, he further claimed prompted him to file a suit against the appellant and the respondent at the High court, which court confirmed the sale of the property to him. The applicant claimed that the present suit is part of their grand design to dispossess him of the property and that they claimed to have obtained another affidavit from the bailiff who first served the motion on notice on them before the order of foreclosure was made to the effect that he was forced to swear to the affidavit of service. The applicant claims he desires to be joined as a party in the appeal in order to protect his interest in the property as the owner.

In its counter-affidavit, the appellant/respondent deposed that the subject matter of the appeal is the jurisdiction of the lower court to have entertained the foreclosure proceedings and not the sale or purchase of the property. There was consequently no basis for the applicant’s application to be joined in the appeal.

Pursuant to the order of the court that the parties should file written addresses, the Applicant filed a written address dated 25th September 2011 in support of his application to join in the appeal, while the Appellant/respondent filed a written address in opposition dated 21st December 2011. The Applicant also filed a reply on points of law dated 7th March 2012.

The Applicant in his written address raised 2 issues for determination to wit:

i. Whether this court i.e. the court of appeal has the jurisdiction to join the applicant as a party in this appeal notwithstanding that the applicant was not a party at the lower court.

ii. Whether the applicant would be bound by the decision or affected by the decision to be reached by this court in this appeal.

The appellant/respondent on his part in his written address raised 3 issues for determination to wit:

i. Whether the honourable court can in law join a party who is not a necessary party to a suit merely on a contingent interest when that party seeking to be joined is not appealing against the order of the lower court.

ii. What are the effects of introducing fresh facts on appeal and extraneous matter not appealed on and not before this honourable court?

iii. What is the effect of the maxim “He who comes to equity must come with clean hands” when a party seeking for an order of the court has lied on oath to the same court.