Lead Merchant Bank Limited V. Musiliu Salami & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

MONICA BOLNA’AN DONGBAN-MENSEM J.C.A.

The Appellant is dissatisfied with the decision of the trial Court delivered by Hon. Justice L.G.A. MARSH of the Lagos State High Court joining it as a co-Defendant in the suit of the Respondent at the trial Court. The Ruling was pronounced on the 31st day of January 2001, following a considering of the arguments of learned Counsel on each side in a motion on Notice for the joinder.

The case of the Respondent before the trial Court is for an alleged disturbance and interference with its possession, use and occupation of a DRAIN SET-back at PLOT 1214C KARIMU KOTUN STREET, VICTORIA ISLAND LAGOS. The Appellant is said to have commenced some illegal construction on the said plot of land.

The grouse of the Appellant is that it had been wrongfully joined as a party in the suit of the Respondent who is Plaintiff before the trial Court. The Appellant was joined as a 3rd Defendant to the original Defendant along with the Eti-Osa Local Government.

The brief facts of the case are that “some people” said to be “from Lead Merchant Bank Limited” erected a sign post on the land indicating the nature of the construction on going on the land. On the sign post, is a directive that all enquiries were to be directed to the bank. A photograph of the said sign post was annexed to the affidavit in support of the motion for a joinder. The said exhibit marked Exh. KK forms the kernel of the decision which is being appealed against.

Two issues were formulated for the Appellant for the determination of this Court.

These ISSUES are :-

“(1) Whether the appellant is a necessary party to the respondent’s suit at the High Court.

(ii) Whether the learned trial Judge properly evaluated the two conflicting affidavit evidence on the Motion for joinder and the exhibits attached to the respective affidavits.”

Issue two formulated by the Appellant is no more than the other side of the same coin. It is a mere repetition of the argument proffered under issue one. The determination of issue one would thus necessarily involve a consideration of the evaluation of the two affidavits placed before the trial Court. Being an issue of documentary evidence, this court is in as good a position as the trial Court to evaluate the said evidence.

The question is whether the Appellant is a necessary party. In determining these questions, the learned trial Judge would either have fully considered the affidavit evidence placed before it by both parties or would have failed so to do and thereby came to a wrong decision. I am therefore of the humble option that the resolution of issue one will dispose of this appeal. I shall so proceed.

The case of the Appellant is that prior to the filling of the motion on Notice, the Plaintiff/Respondents had written a letter to the Appellant complaining about a sign post erected on the land in question. It was alleged in the letter that the sign post was erected by “some men from the Lead Merchant Bank” connecting the Appellant with some illegal construction being under taken on the land. (Page 39 of the records referred).

The Appellant replied by a letter dated the 9th day of November 2000, denying any knowledge of the said sign post and the alleged construction. The Respondents nonetheless went to Court seeking to join the Appellants, but failed to put all the facts before the trial court. In its counter – affidavit challenging the application for its joinder, the Appellant put all the facts before the trial court. The Learned trial Judge, submitted the learned Counsel for the Appellant, did not however take into consideration, the conflicting depositions before arriving at its decision to join the Appellant as a party in the suit of the Respondent.

The learned trial Judge at pg 62c of the record for this appeal held as followings- .