In The Court of Appeal

(Lagos Judicial Division)

On Friday, the 15th day of February, 2013

Suit No: CA/L/878M/07

Before Their Lordships

 Between

 And

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Lead Ruling): This is an application by motion on notice brought pursugnt to Order 4 Rule 1, Order 7 Rule 1, 4 & 10 of the Court of Appeal Rules 2007, Section 15 of the Court of Appeal Act and under the inherent jurisdiction of the Court by the interested party praying for leave of the Court to apply to join, extension of time within which to apply for leave to join and an order joining Chief Bartholomew Azuka Umeh as an interested party in this appeal.

The application was brought on the following grounds:

1. The person sought to be joined is the bona fide purchaser in good faith of the property the subject of this appeal from the respondent.

2. As at the time of the purchase of the property by the party sought to be joined there was no pending suit from the appellant or any person on the property.

3. By a ruling delivered on the 6th day of February, 2007 by Hon. Justice Alogba of the Ikeja High Court in suit no. ID/1171/2005 between the appellant herein as the 2nd respondent and the party sought (sic seeking) to be joined as claimant the Honourable Court confirmed the sale of the property to the party sought (sic seeking) to be joined by the respondent herein.

4. The party sought (sic seeking) to be joined has obtained the Governor's consent to the transaction i.e. sale of the property to him. 

5. Any judgment delivered by this court will affect the right of the party sought (sic seeking) to be joined in this matter.

6. The party sought (sic seeking) to be joined is in lawful possession of the property and by a ruling of the Ikeja High Court in suit No.ID/1171/2005 delivered on the 6th day of October, 2008 the court further put the party sought (sic seeking) to be joined into possession.

7. The party sought (sic seeking) to be joined would be bounded (sic bound) by the judgment to be obtained in this suit.

8. The party sought (sic seeking) to be joined is an interest (sic interested) party in this suit being the legal owner of the property which was purchased after the order of foreclosure was made which order is the subject of the appeal herein. 

The application is supported by an affidavit of 26 paragraphs deposed to by the party seeking to join with four exhibits. In opposition to the application, the appellant/respondent filed a counter-affidavit of 8 paragraphs. 

The gist of the applicant's case as deduced from his affidavit is that the respondent herein Wema Securities Ltd advertised the property, the subject of this suit for sale. The applicant averred that he was informed that the appellant herein used the property as collateral for a loan. He defaulted in repaying the loan and an order of foreclosure was obtained against him. The applicant bought the property and after execution of the deed of assignment, the respondent put him into possession. When he noticed an encroachment on the property he commenced an action against the appellant, the respondent and one other at the High Court Ikeja. In the course of the proceedings, he found out that the appellant was challenging the order of foreclosure granted to the respondent by the High Court. Before he could apply to be joined in the suit in the lower court, the appellant had already filed this appeal. He claimed he later got information that that the appellant and the respondent were colluding to set aside the sale of the property to him. This, he further claimed prompted him to file a suit against the appellant and the respondent at the High court, which court confirmed the sale of the property to him. The applicant claimed that the present suit is part of their grand design to dispossess him of the property and that they claimed to have obtained another affidavit from the bailiff who first served the motion on notice on them before the order of foreclosure was made to the effect that he was forced to swear to the affidavit of service. The applicant claims he desires to be joined as a party in the appeal in order to protect his interest in the property as the owner.

In its counter-affidavit, the appellant/respondent deposed that the subject matter of the appeal is the jurisdiction of the lower court to have entertained the foreclosure proceedings and not the sale or purchase of the property. There was consequently no basis for the applicant's application to be joined in the appeal.

Pursuant to the order of the court that the parties should file written addresses, the Applicant filed a written address dated 25th September 2011 in support of his application to join in the appeal, while the Appellant/respondent filed a written address in opposition dated 21st December 2011. The Applicant also filed a reply on points of law dated 7th March 2012.

The Applicant in his written address raised 2 issues for determination to wit:

i. Whether this court i.e. the court of appeal has the jurisdiction to join the applicant as a party in this appeal notwithstanding that the applicant was not a party at the lower court.

ii. Whether the applicant would be bound by the decision or affected by the decision to be reached by this court in this appeal.

The appellant/respondent on his part in his written address raised 3 issues for determination to wit:

i. Whether the honourable court can in law join a party who is not a necessary party to a suit merely on a contingent interest when that party seeking to be joined is not appealing against the order of the lower court.

ii. What are the effects of introducing fresh facts on appeal and extraneous matter not appealed on and not before this honourable court?

iii. What is the effect of the maxim "He who comes to equity must come with clean hands" when a party seeking for an order of the court has lied on oath to the same court.

On 26th November 2012, parties adopted their respective written addresses. The applicant at the hearing withdrew relief 2 on his motion paper seeking extension of time within which to apply for leave of the court to apply to be joined in the appeal and same was struck out by the court.

On issue 1, learned counsel for the applicant relying on section 15 of the court of appeal Act, order 4 rule 1 of the court of appeal Rules 2007 (now 2011) and the cases of Yakubu v. Governor of Kogi State (1995) 8 NWLR (Pt.414) 386 at 405, Iyimoga v. Gov. Plateau State (1994) 8 NWLR Part 360 73 at 92 submitted that this court has full jurisdiction to grant the application sought notwithstanding that the applicant was not a party at the lower court as though it was a court of first instance. Counsel urged the court to invoke its powers and exercise its jurisdiction by granting the applicants application. 

Learned counsel for the applicant on issue 2 submitted that whatever decision that would be arrived at in the appeal would affect the applicant's right and interest in the property. He urged the court to grant the application for joinder, the applicant being a person who will be affected and bound by any decision to be reached by the court in the appeal. Counsel called in aid the cases of Oba Joseph Adeyemi Ajayi & 2 Ors v. Oba Joseph Abolarin Jolayemi 2011 FWLR Part 55 page 586, Akanbi v. Fabunmi 1986 2 SC 431.

Learned counsel for the Appellant/respondent in his submission vide his issue 1 set out the provisions of section 243(a) of the 1999 constitution of the Federal Republic of Nigeria dealing with exercise of right of appeal and submitted that the provisions contemplate a person or party appealing against the decision of the lower court and not otherwise' counsel argued that the applicant is not appealing against the decision of the lower court and also failed to disclose in his application whether he is seeking to be Joined as a co-appellant or as a co-respondent. Counsel urged the court to discountenance the submissions of Learned counsel for the applicant and hold that the applicant is not a necessary party in the appeal since he has no interest to be protected having purchased the property during the pendency of litigation. He relied on the cases of Osagie v. Voyeyinka (1987) 2 NSCC 840 at 849, Barclays Bank of Nigeria Ltd. v. Ashiru (1978) 6 SC 99 page 190 paras D-F, Rinco Construction Company v. Vee Pee Industries Ltd (2005) 9 NWLR (Part 929) 75 at page 100 paras A - B, Green v. Green (1987) 2 NSCC page 1115 at 1123 paras 5 - 10.  

On issue 2, learned counsel submitted that the grant of the application for joinder will introduce fresh facts on appeal and extraneous matters not appealed on and not before the court. He relied on Ige v. Farinde (1994) 7 NWLR part 354 at page 50 paragraph 7, UDZA and ors v. Paul Loko (1988) 2 NWLR Part 77 430 at 438 paras B - E. 

On issue 3, learned counsel relying on the principle that "He who comes to equity must come with clean hands" submitted that equity is not on the side of the applicant. He urged the court to disregard and dismiss the applicant's application to join, the applicant having lied on oath and misrepresented facts to the court. 

The applicant in his reply on points of law urged the court to discountenance the submissions of learned counsel for the appellant/respondent and prayed the court to grant his application.

I have considered carefully the arguments and submissions of the parties. It is not in doubt that this court has the power in appropriate cases to join as a party in the appeal one who was not a party in the proceedings at the trial. The power is derived from Section 15 of the Court of Appeal Act and order 4 rule 1 of the court of Appeal Rules. Yakubu vs Governor of Kogi State (1995) 8 NWLR (Part 414) 386 at 405, Iyimoga v. Gov. Plateau State (1994) 8 NWLR Part 360 73 at 92. 

Further Section 243(a) of the Constitution of the Federal Republic of Nigeria provides thus:

..Any right of appeal to the court of appeal from the decisions of the Federal High Court or a High Court conferred by this constitution shall be -

(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other Person matter..."

The above section of the constitution guarantees the right of any person who has interest in a matter to appeal to the court of appeal and this confirms or substantiates the fact that the right of appeal to the court of appeal is a constitutional right exercisable by a party in a civil suit. However, the right of appeal is only exercisable with leave of the High Court or the court of appeal at the instance of a person appealing as a non-party whose name does not appear in the record. Such a person must be a person interested and directly a High court conferred by this affected or likely to be affected by the decision in the suit. In other words, any party appealing against a decision must have been aggrieved by the decision. See Yusuf v. Adeyemi (2009) 15 NWLR (Part 1165) 616, Opekun v. Sadiq (2003) 5 NWLR (Part 814) 475.

The right under section 243(a) of the Constitution does not apply only to appellants but to respondents as well. It contemplates the right of non-parties either as appellants (co-appellants) or respondents (co-respondents).

This is because a respondent to an appeal is also allowed to appeal a decision made in his favour either by way of cross-appeal or a respondent's notice. 

The requirement for a non-party to be joined in an appeal is that such a person must have an interest in the appeal and must seek the leave of court to join in the appeal. The test to determine whether a non-party is a person having an interest in a matter is whether the person could have been joined as a party to the suit. In the case of Okoli v. Ojiakor (1997) 1 NWLR (Pt.479) 48 @ 57 E-G, it was held that in order to determine if a party has interest in the subject matter of the litigation, the court will ask itself the following questions:

1. Is the suit likely to be defeated by the non-joinder of the party?

2. Is it not possible for the court to determine the live issues in the litigation without joining the party?

3. Will the party seeking to be joined suffer injustice if he is not joined?

4. Can the party seeking to be joined sue as a plaintiff or be made a defendant in the first place?

5. Will the party be affected by the result of the litigation to the extent that he will be forced to instituted a fresh action which could be a victim of the plea of res judicata?

See also EFP Co. Ltd. v. NDIC (2007) 9 NWLR (Pt.1039) 216.

In the instant case, the applicant's supposed interest in the appeal is that he is the alleged owner of the property, the subject matter of this appeal. The applicant in his application submitted that he is the bonafide purchaser in good faith of the said property from the respondent and that at the time of the purchase there was no pending suit from the appellant or any person whatsoever on the property. The applicant also argued that he is a person that will be bound by the decision of the court in the appeal. This submission was challenged by the appellant/respondent who argued that at the time the applicant purchased the property in question, there was a suit pending before the High court of Lagos challenging the foreclosure order by Lufadeju J. Learned counsel for the appellant/respondent referred this court to the date of execution of the Deed of assignment and the date and period the application challenging the foreclosure order was pending in court. From the evidence available to this court vide the record of appeal; it is not in dispute that Exhibit 1 being relied on by the applicant which is the Deed of assignment transferring the property to the applicant was dated 14th January 2006. The applicant's case is that the respondent put him into possession after execution of the deed of assignment. But it is also not in dispute that the appellant/respondent's application challenging the foreclosure order at the lower court was dated 28th July 2005 and was pending before the lower court. Further, the respondent in the appeal was served with the appellant's application challenging the foreclosure order. The respondent in the appeal was consequently taking steps to transfer the property to the applicant fully aware of the pendency of the suit challenging the foreclosure order. I have no doubt in my mind that there was a pending suit before the lower court in respect of the property, the subject matter of this appeal at the time the property was purchased by the Applicant. The respondent in the appeal had notice of the pending suit prior to completing the sale and transfer of the property to the applicant. The purchase by the applicant was done lis pendens. The doctrine of lis pendens is a strict one which operates to prevent the effective transfer of any property in dispute during the pendency of the dispute. It is insignificant, irrelevant, and immaterial whether the purchaser had notice, actual or constructive. Lis pendens applies to title of a property and when such title is the subject matter of litigation, all intending sales must abate, pending the outcome of the litigation. See Osagie v. Voyeyinka (1987) 2 NSCC 840 at 849, Barclays Bank of Nigeria Ltd. v. Ashiru (1978) 6 SC 99 page 190 paras D-F; EFP Co. Ltd. v. NDIC (supra). A vendor of a property in dispute has nothing at all in law to give to a purchaser, whether a bonafide purchaser or not. The main purport and essence of the doctrine of lis pendensis that parties to proceedings pending in court must not do anything which may have the effect of rendering nugatory the ultimate judgment of the court therein.The interest of the applicant in the subject matter of the appeal before this court is consequently questionable. He cannot in the circumstances be said to be a person having interest in the appeal and cannot be adjudged by this court to be an interested party in the appeal. Whatever interest the applicant believes he has is subsumed in the respondent's interest. From the facts and evidence before this court vide the record of appeal; the applicant has not established that he is an interested party in this appeal.

This court has the jurisdiction to join an interested party to an appeal before it if such a person is a necessary party. Such a person will not be joined for a mere interest which is subsumed in the interest of an existing party to the appeal. In the instant case, the applicant can only allow the Respondent to this appeal to fight his cause.

Furthermore, as submitted by learned counsel for the appellant/respondent, the applicant is not a necessary party who ought to be joined in this appeal. One of the compelling reasons which make it necessary to make a person a party to an action is so that he should be bound by the outcome of the action and the question to be settled must be a question which cannot be effectively and completely settled unless he is joined in the action. Afolayan v. Ogunrinde (1990) 1 NWLR (Pt.127) 369. or (1990) 2 SCNJ 62. The issue fought at the lower court which is on appeal is a question of law whether the lower court had the jurisdiction to make the order of foreclosure on 20/5/05. That issue can be effectively and completely settled without the applicant being joined as a party in the suit. If the test outlined above as set out in Okoli v. Ojiakor (supra) is applied to this application, it becomes obvious that the application for joinder is totally misconceived. The suit could not have been defeated for non-joinder of the applicant; the live issues in the suit - whether the lower court had jurisdiction to entertain the foreclosure proceedings could be determined without joining the applicant; the applicant would not have suffered any injustice if not joined because his purported interest in the property was acquired during the pendency of the suit; given the purport of the suit, the applicant could not have sued as a plaintiff or be made a defendant in the first place; given the purport of the suit, the applicant could not have been affected by the result of the litigation to the extent that he will be forced to institute a fresh action which could be a victim of the plea of res judicata.

To further confound his situation, the applicant in his motion paper did not disclose to this court on which side of the appeal he was pitching his tent. He has only asked to be joined as an interested party without stating whether he wishes to join as co-appellant or co-respondent. It is not within the powers of this court to choose on which side the applicant should fight or defend. The court has a duty to grant only the reliefs sought or prayed for by an applicant and cannot grant a relief not prayed for. see Ekpenyong v Nyang (1975) 2 SC 71.

In the final result therefore, this application lacks merit and is bound to fail. It is hereby dismissed with costs of N20, 000.00 in favour of the appellant/respondent.

RITA NOSAKHARE PEMU, J.C.A.: I have read before now the Ruling just delivered by my brother CHINWE EUGENIA IWZOBA J.C.A., and I agree and fully adopt his reasoning and conclusions.

The Appeal is devoid of merit and same is dismissed by me. 

I subscribe to the consequential order made as to costs. 

FATIMA OMORO AKINBAMI, J.C.A.: My learned brother, the Hon. Justice Chinwe Eugenia Iyizoba ICA has obliged me with a copy of the draft of the Ruling just delivered by him.

I had read before now, the briefs of argument of the learned counsel to the parties vis-a-vis the record of appeal as a whole. I cannot but concur with the reasoning and conclusion reached in the said Ruling.

Having adopted the reasoning and conclusion reached in the lead Ruling as mine, I hereby dismiss the appeal for lacking in merits.

I adhere to the order of my learned brother on costs.

     Appearances