In Re: Ndic & Anor. V. Mr. J. Lawal & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A.

In its motion on notice dated and filed on 21/6/05, the applicant (the NDIC) applied to this court seeking for the following relief:

“1. An order granting leave to the applicant to join as a co-respondent in this appeal.

2. An order granting leave to the applicant to respond to this appeal.
3. An order joining the applicant as co-respondent to this appeal.
4. And for such further or other orders as this Honourable Court may deem fit to make in the circumstance of this application.”

When moving the application, the learned counsel for the applicant O. C. Opara (Mrs.) stated that the application is brought pursuant to section 6(b)(a) and 243(a) of the Constitution of the Federal Republic of Nigeria, 1999; Order 3 rule 6(1) of the Court of Appeal Rules, 2002, and the inherent jurisdiction of this Honourable Court. The application is also said to be supported by a 7 paragraph affidavit with 8 exhibits. The applicant relies on all the paragraphs particularly paragraph 4-6 thereof which disclose inter alia the applicant’s interest in the present appeal and the need to join it as a co-respondent in the interest of justice. It is further pointed out by the learned counsel that in its capacity as the receiver/liquidator of the Alpha Merchant Bank it applied for the recovery of debt against the 2nd respondent at the Failed Bank Tribunal. Lagos where a consent judgment based on terms of settlement was given or entered by the said Tribunal on 18/3/98. As a result of the consent judgment and the abolition of the Failed Bank Tribunal, the applicant applied to the Federal High Court for leave to execute the said judgment and the leave was granted on 23/01/02. Upon this leave the applicant acquired and assigned to a 3rd party a 400 room Hotel project located at Plot A, Victoria Island Shopping Complex, Ahmadu Bello Way, Victoria Island, Lagos. It is further stated by the applicant’s counsel that an appeal against the leave granted to the applicant by the 3rd respondent was dismissed by this court in appeal No. CA/L/224/2004. It is submitted that the law is settled that a party who has interest in the subject – matter in any suit or appeal may apply to be joined – see O.3 R 6(1) of the Court of Appeal Rules 2002; Yakubu v. Governor of Kogi State (1995) 8 NWLR (Pt. 414) 386; Iyimoga v. Gov. Plateau State (1994) 8 NWLR (Pt. 360) 73 cited in support of the above submission. It is finally stated by the applicant counsel that the respondent did of contradict any of the facts deposed to in the supporting affidavit. This court is therefore urged to grant the application.

The appellants/respondents opposed the application. The learned senior counsel Professor Kasunmu (SAN) referred us to their counter affidavit in opposition filed on 9/2/06 containing 12 paragraphs. In his submission before us, the learned counsel for the appellants/respondents stated the test to be applied by the court in an application for joinder of a party. The test is whether or not the applicant is a necessary party to the just determination of the present appeal. It is pointed out that the property the subject matter of the present appeal was brought in the name of the 3rd respondent and the issue before the lower court was as to who owned the said property. It is also pointed out that the applicant’s application to be joined at the lower court was refused and it has not appealed against the refusal. It is also the contention of the appellants/respondents that since the property in dispute was transferred or assigned by the applicant to a 3rd party (as admitted by the said applicant) it is the 3rd party who is now an interested party who can be joined in the present appeal rather than the applicant. It is also said that the applicant has nothing to do or to contribute to the present appeal. This court is finally urged by the appellants/respondents learned counsel to refuse and dismiss the application.

The 2nd set of respondents who also oppose the application, filed their counter-affidavit on 27/2/06. It contains six (6) paragraphs.

In his submission before us, their learned counsel Mr. G. O. Bello adopted or associated himself with the submissions of the learned senior counsel for the appellants/respondents. He also added that the applicants who in law has a duty to show its interest in the subject matter of the appeal and that it will be directly affected by the outcome of the present appeal has failed to do so as the subject-matter of the appeal has left its hand. – See In Re: Muhammed Sani Abacha (2000) 5 NWLR (Pt. 655) 50 at 66-67 cited in support of the above submission. We are finally urged by learned counsel for the 2nd set of respondents, to dismiss the application.

Mrs. O. C. Opara for the applicant on her second chance to address us reiterated or re-emphasised that the applicant still has an interest in the subject matter of the appeal.

On the above submissions of all the learned counsel for the parties involved in the present application, the first point to note is the common ground accepted by all the learned counsel that the determining factor of the application is the existence or otherwise of the applicants interest in the subject matter of the substantive appeal. This consensus of the counsel provides me with the narrowed down issue or point to be resolved by this court in the application.

From the supporting affidavit which I have highlighted above the facts of the case can be stated as follows:

The applicant as a receiver or liquidator of failed banks applied for the recovery of debts on behalf of Alpha Merchant Bank Plc which was then insolvent and under liquidation against the 2nd respondent and others. (See exhibit ‘A’). As a result of the applicants applications, the parties entered and executed a term of settlement on 10/2/99 which was made the judgment of the Tribunal on 18/3/98. – See paragraph 3(III) of the supporting affidavit and exhibits ‘B’ and ‘C’. After the abolition of the Failed Bank Tribunals, the applicant applied to the Federal High Court, Lagos (the trial court) which granted it leave to execute the judgment of the erstwhile Tribunal on 23/1/2002 (see exhibit ‘E’). A renewal order of this leave was made and enrolled on 19/12/03 (as per exhibit ‘F). The applicant then assigned the property (the subject-matter of the appeal) to a third party (whose name is not mentioned in the application).

The 2nd set of respondent appealed against the trial court order of 19/12/03 to this court which dismissed the appeal and affirmed the order of the trial court on 23/5/05 – see exhibit ‘G’. After the institutions of the present suit at the trial court by the appellants/respondents, the applicant applied for leave to be joined as an interested party but its application was refused on 21/11/97. It then brought the present application in this court which is dated and filed on 21/6/05.

My next task is to consider the principles for the grant of an application for joinder and to apply it to the above facts of the present application. Under the said principles it is necessary to distinguish between a “proper party” or a “desirable party” on the one hand and a “necessary party” on the other.

The rationale and main reason for making a person or an applicant a party to an action or proceeding is so that he will be bound by the result of the action or proceeding and all questions arising in the proceedings can be settled once and for all. There must be a question in the proceedings which cannot be effectually and completely settled unless such a person or applicant is made a party. It is equally necessary to join a party whose interest is involved or is in issue in the action. – See Green v. Green (1987) 7 SCNJ 255 at 267-268; (1987) 3 NWLR (Pt. 61) 480; Amon v. Rapheal Tuck & Sons Limited (1956) 1QBD 357 at 380; Lajumoke v. Doherty (1969) 1 NMLR 281; Peenok Investments Ltd. v. Hotel Presidential Limited (1983) 4 NCLR 122; Yakubu v. Governor of Kogi State (1995) 8 NWLR (Pt. 414) 386; Onyenucheya v. Military Administrator, Imo State (1997) 1 NWLR (Pt. 482) 429 at 449-450; and Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567) 546 at 555.