Global Soap And Detergent Ind. Ltd. & Ors. V. Gen. S.t. Bello & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABDULLAHI, J.C.A, (Delivering the Leading Judgment)

On the 12th January, 2009, at the Kwara State High Court of Justice, Ilorin, the Plaintiff/Respondent filed a writ of summons on the undefended list procedure for and on behalf of himself and Fossil Petroleum Nigeria claiming the under listed reliefs against the defendants/appellants. The writ of summons reads thus:

“The claimant’s claim against the defendant(s) jointly and or severally is for:

1. The sum of N1,320,000.00 (One Million, Three Hundred And Twenty Thousand Naira) only.
2. The cost of this suit.
3. 10% interest per annum on the judgment sum from the date of judgment till judgment is finally liquidated.”

The facts of the case briefly stated are that: During the course of hearing, the claimant/Respondent sought the leave of the trial Court to join Fossil Petroleum Nigeria Ltd. as co-claimant in the suit which the defendant did not oppose (see page 49 of the record).

The defendants /appellants filed a notice of preliminary objection on 25th February, 2009, asking for an order of the trial Court striking out the names of 2nd, 3rd and 4th defendants alleging that they are mere agents of the 1st defendant. In a ruling delivered on the 14th of May 2009, the learned trial Judge, I.B. Garuba (J) refused to strike out the names of 2nd to 4th defendants/appellants herein he held that:

“In fact, the 2nd, 3rd and 4th defendants in my humble view are like fingers with which the 1st defendant used to feed and lift objects of its interest and therefore cannot be severed from this case. Having found them effectually desirable for a successful resolution of this case, and I accordingly decline to strike out their name from this suit.”

Aggrieved by the ruling of the learned trial judge, the appellants approached this Court and expressed their dissatisfaction by filing a notice of appeal which carries two grounds of appeal and sought for the followings:

1. “An order of the Court allowing the appeal and setting aside the ruling of the lower Court delivered on 14/5/2009, and to strike out the 2nd, 3rd and 4th appellants from the suit”.

On 11th October, 2011, counsel for the parties adopted their briefs of argument. Learned counsel for the appellants adopted their brief dated 8th day of June, 2010 and filed on the 10th of June, 2010. He also filed a Reply Brief dated and filed on 28th/07/2011. Learned counsel adopted the two briefs and urged us to allow the appeal and set aside the Judgment of the lower Court.

Learned Counsel for the respondents also adopted their ‘brief dated and filed on 12th July, 2010. He urged us to dismiss and affirm the decision of the lower Court

In a brief settled by Tosin Alawode, appellants distilled two issues for determination from the two grounds of appeal as follows:

1. Whether by the originating process and other processes before the lower court, the 2nd 3rd and 4th appellants are not mere agents of the 1st appellant whose names where liable to be struck out.
2. Whether there existed conflicts in the Affidavits of the appellants which could make the lower Court jettison same.

The first issue is said to arise from the first ground of appeal while the second arises from the 2nd ground.

For his part, Learned Counsel for the respondents formulated two issues for determination to wit:

1. “Whether 2nd, 3rd and 4th defendants/appellants are not necessary parties to the just determination of the Claimants/Respondents’ case having regard to the entire circumstances surrounding this case.
2. Whether the trial Court was right, proper (sic) and justified when it dismissed the defendants/appellants’ preliminary objection in its considered ruling delivered on 14th May, 2009.

Learned Counsel did not relate the issues with the two grounds of appeal but the appeal can be determined by giving consideration to the first issue as distilled by the appellants. It is in the light of this issue that the appeal will be considered and determined.

ARGUMENT OF THE ISSUE