Pagade Chemicals Ltd & Ors V. N.D.I.C (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

JOHN INYANG OKORO, J.S.C. (Delivering the Lead Judgment): By an application by way of motion on notice dated and filed on 9th June, 2006 at the trial Court, the Appellants as defendants sought the following reliefs:-

“1(a) AN ORDER GRANTING LEAVE TO THE DEFENDANTS herein to issue and serve a third party notice on the party sought to be Joined in this suit.
1.(b) AN ORDER joining the “CENTRAL BANK OF NIGERIA” as a defendant in this suit.

2. AN ORDER striking out the name (s) of the defendants/Applicants from this suit, and substituting it/them with the following persons/organization (s):-
3. Nigerian deposit Insurance Corporation (Liquidator of Group Merchant Bank Ltd)
4. AVM Mouktar Mohammed (RTD)
5. AVM Usman Muazu (RTD)
6. Kabir Mohammed
7. Bashir Dalhatu
8. Khadiza Mohammed
9. Umaru Mohammed
10. Mouktar Yola
11. Ahmed M. B. (W.A.) (DR)
12. Mgbenwelu Peter
13. Eshalomi Mathew (DR)
14. Edu Babatunde
    ALTERNATIVELY
    (1) AN ORDER joining the above mentioned persons as co-defendants in this suit.
    (2) AN ORDER joining the “CENTRAL BANK OF

NIGERIA ” as a Defendant in this suit
(3) SUCH FURTHER ORDER (s) as the Honourabe Court may deem fit to make in the circumstance(s).”

The motion was supported by a 17 paragraph affidavit and a reply affidavit in reaction to the counter affidavit of the Respondent.

After considering the affidavit of the parties and their arguments for and against the application, the trial Court ruled that the Appellants failed to show any cause of action or claim against the Central Bank of Nigeria to warrant the grant of the relief of a third party notice. The Court further ruled that from the materials placed before the Court and especially the affidavits of the parties, he was satisfied that the Respondent’s claim could be effectually, effectively and completely determined between the parties already before the Court without the need to join fresh persons as sought in the application. The motion on notice was accordingly dismissed.

Dissatisfied with the decision of the trial Court, the Appellants appealed to the Court below vide notice of appeal dated and filed on 10th March, 2009 containing three grounds of appeal thus:-

“GROUND 1
The learned trial Judge erred in law and occasioned a miscarriage of justice when he held that the affidavit evidence in support of the motion for joinder did not disclose any cause of action against the Central Bank of Nigeria (the party sought to be joined) and without more.

PARTICULARS OF ERROR

1. Defendants/Applicants’ relief as contained in the motion for joinder are hinged substantially on the fact that all matters concerning the formerly proposed “Dolphin International Bank” and which formed substantially, the cause of action in this suit revolved around the guidelines/actions of the Central Bank of Nigeria in its capacity as the regulatory authority in the banking industry and are thus central in the adjudication of this matter.
   
   GROUND 2
   The learned trial Judge erred in law and occasioned a gross miscarriage of justice when he held inter alia that the persons/organization(s) named in prayer 2 on the motion paper are not proper parties to be joined in the suit as the Defendants/Appellants Affidavit in support of the motion did not disclose any claim by the plaintiff/respondent against the parties sought to be joined and without due consideration

for the position of the law in this regards.

PARTICULARS OF ERROR

1. It has been held that a person may be joined as a defendant, even against the interest of the plaintiff, whenever the facts/evidence makes it imperative to do so.
2. The parties sought to be joined are the only persons who stand in a position to defend themselves and not the plaintiff/respondent and thus, only the direct evidence of the parties sought to be joined as opposed to the opinions of the plaintiff/respondent is admissible in law and in the circumstances of this case.
   GROUND 3
   The Ruling of the Honourable Trial Court is against the weight of the affidavit evidence before the Court and thus perverse.”

The parties filed and exchanged their respective briefs proffering their arguments for and against the appeal. The respondent also filed a notice of preliminary objection on the 29th day of October, 2010 which was incorporated in its brief of argument. The preliminary objection urged the lower Court to dismiss the appeal on three grounds, namely:-

(1) That the decision which was being appealed against is an interlocutory decision of the trial Court and leave of that Court or of the lower Court was neither sought nor obtained before the appeal was filed.
(2) That the grounds of appeal contained in the notice of appeal were grounds of facts or at best, mixed law and facts which require leave of Court, which was neither sought nor obtained by the appeal before the appeal was filed.
(3) That the Grounds of Appeal contained in the notice of appeal did not relate to the decision of the trial Court.

The lower Court found merit in the preliminary objection and upheld same. The Court declared the notice of appeal incompetent and struck same out. The Court further held that to entertain the main appeal would be an academic exercise. Aggrieved by the decision of the lower Court, the Appellant has further appealed to this Court vide notice of appeal containing two grounds of appeal.
​
The parties filed and exchanged their respective briefs. When the appeal came up for hearing on 20th September, 2022, the Appellants’ counsel adopted the Appellants’ brief of argument filed on 1st July, 2014 but deemed properly filed on 8th June, 2018. The Respondent’s counsel also adopted the Respondent’s brief of argument filed on 15th March, 2018 but deemed on 8th June, 2018.

In their Appellants’ brief, counsel for the Appellants identified two issues for determination thus:-