First Inland Bank Plc. V. Consolex Legal Practitioners & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The interlocutory appeal is against the ruling of the High Court of Lagos State sitting in the Lagos Judicial Division (the court below), whereby it struck out the name of the 1st respondent as a party to the suit and ordered the joinder of the 3rd respondent as the 1st defendant.

Concisely stated, by a writ of summons and statement of claim and a deposition filed on the 5-7-2007, the appellant claimed against the 1st and 2nd respondents’ damages for a libel. At the close of pleadings, and in the course of pre-trial conference, the 1st respondent filed an application on notice seeking to strike out her name from the suit on ground of misjoinder. The appellant opposed the application with a counter affidavit and a written address, to which the 1st respondent filed a reply affidavit and written address.

The court below heard the application on the merit and ruled that the 1st respondent was not a necessary party to the suit; that the appellant’s case did not disclose a reasonable cause of action against the 1st respondent; and that the 1st respondent cannot be held liable for the admitted acts of her client. The court below then struck out the 1st respondent’s name from the suit and ordered the joinder of the 3rd respondent as the 1st defendant in the suit.

Not satisfied with the ruling, the appellant appealed against it by a notice of appeal containing three grounds of appeal filed on 9-6-09. The 1st respondent raised and argued a preliminary objection that grounds 1 and 2 of the notice of appeal are on facts or mixed law and facts arising from an interlocutory ruling of the court below requiring leave of Court to appeal and leave having not been obtained, the said grounds of appeal and the issues formulated in respect of them together with the arguments advanced thereon are incompetent and must be discountenanced following section 241(1) and (2)(c) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) and the cases of Akinsanya v. U.B.A. (1986) 4 NWLR (pt.35) 273, Mohammed v. Olawunmi (1990) 2 NWLR (pt.135) 458, Owor v. Asuk (2008) 16 NWLR (pt.1112) 113, Igunbor v. Afolabi (2001) 1 NWLR (pt.723) 148 at 155, C.C.C.T.S. Ltd. v. Ekpo (2008) 6 NWLR (pt.1083) 362.

The preliminary objection was addressed in the reply brief filed on 10-6-10 to the effect that grounds 1 and 2 of the notice of appeal are on the application of the law to settled or admitted facts and arose from a decision of the court below that determined to finality the rights of the parties in the misjoinder and/or joinder of the 1st respondent and the 3rd respondent respectively in the suit which do not require leave to appeal, therefore the preliminary objection should be overruled citing in support the cases of Attorney General of Kwara State v. Olawale (1993) 1 SCNJ 208 at 219, Nwadike v. Ibekwe (1987) 12 SC 14 at 36, Iwueke v. Imo Broadcasting Corporation (2005) 17 NWLR (pt.955) 447 at 472 – 473, Fumudoh v. Aboro (1991) 9 NWLR (pt. 214) 210 at 227 228, Ifediorah v. Umeh (1988) 2 NWLR (pt.74) 5 at 15 – 16, Owoh v. Asuk (2008) 16 NWLR (pt.1112) 133 at 128, Igunbor v. Afolabi (2001) 1 NWLR (pt.723) 148 at 165, and section 241(b) of the 1999 Constitution.

The 1st respondent filed a notice of intention to contend that the decision should be affirmed on grounds other than those relied upon by the court below to wit – that upon the consideration of the pleadings, the affidavits and the documentary evidence placed before the court below, especially Exhibit C1 attached to the 1st respondent’s affidavit seeking for the name of the 1st respondent to be struck off the suit, coupled with the admission by the 3rd respondent that she issued Exhibit A in the name of the 1st respondent, who merely wrote it without publication, the court below was right to hold that the 1st respondent was not a necessary party to the suit and the order striking out her name should be affirmed.

A brief of argument was filed on 27-2-11 by the appellant identifying these issues for determination –

“Whether or not the 1st Respondent is necessary party in the suit.

Whether the order of the learned pre-trial judge directing the joinder of the 3rd Respondent as the 1st Defendant in the suit is justified in law.”

After referring to the reliefs endorsed in the statement of claim against the 1st and 2nd respondents on pages 8 – 9 of the record of appeal (the record) which are in the nature of declarations, injunctive orders, and damages, as well as all the paragraphs of the statement of claim and the statements on oath filed by the appellant, the appellant submitted that the allegations in the suit are directed at the 1st respondent.

The appellant further referred to the 1st respondent’s statement of defence and the statement on oath on pages 82 – 86 of the record, the appellant’s reply to statements of defence on pages 253-254 of the record, the further written statement on oath on pages 272 – 273 of the record and the 2nd respondent’s statement of defence with the front-loaded processes on pages 124 – 133 of the record to submit that the processes filed by the parties to the action joined issues on whether there was a publication; whether the publication was malicious; and whether the 1st and 2nd respondents were liable as per the endorsement on the statement of claim.

The appellant’s brief observed and contended that, whilst the 1st respondent admitted writing the letter which was published in Thisday Newspaper, they contended that they were not responsible for its publication in the Thisday Newspaper, whereas, the 2nd respondent stated it was the 1st respondent that placed the advertorial.

Based on the foregoing background, the appellant argued that the issue, whether or not the 1st respondent should be held liable for the acts of the 3rd respondent was not to be determined at that stage of the proceedings, but at the conclusion of trial vide the case of Odutola Holdings Ltd. & Ors. V. Kunle Ladejobi & Ors (2006) 12 NWLR (pt.994) 321 at 346-347, University Press Ltd. v. I. K. Martins Ltd. (200?) FWLR (pt.5) 722 at 732, to the effect that substantive issues should not be decided at interlocutory stage of the proceedings.