M N. I. EMORI, ESQ.
HON. EGWU ARONG EGWU & ANOR
IN THE COURT OF APPEAL OF NIGERIA
ON WEDNESDAY, THE 27TH DAY OF JANUARY, 2016
BEFORE THEIR LORDSHIPS:
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A
ONYEKACHI AJA OTISI, J.C.A
PAUL OBI ELECHI, J.C.A
M N. I. EMORI, ESQ. (Practising under the name and style of M. N. I. EMORI & CO. Nkanu Emori Chambers) - Appellant(s)
1. HON. EGWU ARONG EGWU (Chairman, Council and interim Manager, Ibiae Oil Palm Estate, Biase Local Government Area)
2. CHIEF E. B. EDEM (Co-ordinator, Cross River State small-holder scheme on Cocoa, Oil Palm and cashew , Plantations, Ministry of Agriculture & Natural Resources cum General Overseer of the Management of Ibiae Oil Palm Estate) - Respondent(s)
M. N. I. EMORI, ESQ. - For Appellant
NO APPEARANCE - For Respondent
Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling /Decision of the High Court of Cross River State Calabar in Suit No. HC/383/2006 delivered on the 16th April, 2OO7 .
The facts leading to this matter on appeal is that the Appellant , a Legal Practitioner with his office at No. 16 Target Rood, Calabar, Cross River State was engaged to offer legal services to the benefit of the Ibiae Oil Palm Estate by the management of the Estate owned by the Cross River State Ministry of Agriculture & Natural Resources to do the following to wit:
1. Conduct their defence in Suit No. HK/18/2003. ENGR. ONDA IZU ONDA, V. CHIET EKU' ENANG & 5 ORS;
2. Do a reaction by way of correspondence to the allegations of one Mr. Arikpo Ojah lvere's Solicitor's letter;
3. Conduct their defence in Suit No. HK/23/2004; MR. ARIKPO OJAH IVERE V. CHIEF EKUI ENANG & 7 ORS;
4. Perfect the documentation of the society at the Cooperative Society Department, Calabar.
After perfecting the above instructions, the Appellant was partly paid by the Respondents leaving a balance of N905,000.00 which has remained unpaid despite about 4 letters of repeated demand for same.
Upon its refusal to defray the balance, the Appellant took out a writ of summons dated 18th October, 2006 to recover some and other ancillary Claims. After service on them, the Respondent caused a memorandum of Appearance to be filed on their behalf on the 25th October,2006 by their Counsel, Jumbo O. Odey, Esq. of Liberation Chambers, 39, Barracks Rood, Calabar.
Upon receipt of the said memorandum of Appearance, the Appellant filed a Motion on Notice on the 26th October seeking Leave of Court to join the Ministry of Agriculture & Natural Resources as 3rd Defendant and for Leave to amend the statement of Claim and deem same as properly filed and served. On the 27th October, 2006, the 2nd Respondent caused another memorandum of Appearance to be filed on his own sole behalf by Chief E E. Ndiya & Associates, No. 9 White House Street, Calabar and also a Notice of Preliminary objection urging the Court to dismiss the suit on Grounds of Law as the 2nd Respondent has never had any dealing whatsoever ever with the Appellant.
Also on the 15th day November,2006,the 1st Respondent through his counsel Barr. okey brought his own Preliminary Objection to have the suit struck-out because the 2nd Respondent was improperly joined in the suit. All the Notices of Preliminary Objection were without accompanying Affidavits.
However, instead of taking the Motion for joinder and Amendment first the Learned trial Judges elected to take the Preliminary Objections jointly.
In his Ruling of 19th March 2OO7 but read on the 16th April 2007 due to the JUSUN strike, his Lordship found that the Respondents were not necessary parties to the suit and thereby struck-them out and also the suit. He also awarded a cost of N5,OOO.O0 each to the Respondents against the Appellant.
Aggrieved by the said Ruling, ,the Appellant has appealed the Ruling with five Grounds of Appeal filed on the 25th day of April, 2007.
The Appellant distilled four issues for determination from the five Grounds of Appeal:
1. "Whether the Learned trial Judge was not wrong when his lordship elected to first take the Preliminary Objections meant to terminate the suit in limine rather than first take the Motion for joinder and Amendment meant to build the suit. (Distilled from Grounds l & 2).
2. Whether the Learned trial judge was not wrong when his Lordship refused, to hear the Motion for joinder and Amendment, yet in considering the Preliminary Objection he veered off course to comment on the merit of the said Motion, which was not under consideration and then proceeded to refuse it without hearing the Appellant on it. (Distilled from Ground 3).
3, Whether the Learned trial Judge was not wrong he held that from the facts aveered to by the Appellant in his Statement of Claim, the Respondents were not necessary parties to the suit (distilled from Ground 4).
4. Whether the Learned trial Judge was not wrong when his Lordship punitively awarded a cost of N5,000.00 in favour of the Respondents to the cumulative effect of N10,000.00 (Distilled from Ground 5)".
It is on Record that the Appellant filed his Brief of Argument on the 12th May ,2014 and served same on the Respondent over three months ago, By the Rules of Court, the Respondents have 30 days to file their Brief of Argument after service of the Appellant's Brief of Argument on them. The Respondents 30 days period expired on the 14th June, 2004 or thereabout and yet no Respondent's Brief of Argument filed. It was on the basis of this that this Count granted Leave to the Appellant to hear and determine this Appeal on the Appellant's Brief of Argument alone on the 14th May , 2015.
In arguing issue No. 1, Learned counsel referred the Court o his Motion paper dated 20th October, 2006 and filed same day praying the Court for the following reliefs:
1. An order joining Ministry of Agriculture & Natural Resources as the 3rd Defendant in the Suit.
2. An order granting Leave to the plaintiff/Applicant to amend his Statement of Claim and;
3. An order deeming the amended Statement of Claim already filed as being properly filed ad served, the requisite fees having been settled.
Thereafter, the 2nd Respondent through his counsel filed a Preliminary objection on the 27th October,ý2006 challenging the suit on Grounds of Law. Also on the 15th November, 2006, the 1st Respondent through his counsel Barr. Jumbo O. Odey, Esq. filed his Preliminary Objection challenging the suit on Grounds of jurisdiction of the Court to entertain the suit.
Learned Appellant counsel argued that instead of taking the Motion for joinder and Amendment that is meant to build up the suit, the Learned trial Judge, Hon. Justice Eyo Ita elected to take the Preliminary Objections severally that were meant to terminate the suit in limine. In that respect, it is the submission of the Learned Appellant Counsel that the Learned trial Judge erred in Law when instead of taking the Motion for joinder and Amendment first, he opted for the Preliminary objections which were meant to destroy the suit. He contended that under the extant proposition of Law that says that where there are two competing Motion, - one to destroy and the other to build , the later takes priority and must be taken first. See MOBIL PRODUCING NIGERIA UNLIMITED & ANOR. Vs. CHIEF SMIEON NONOKPO & ANOR. (2003) 18 NWLR (Pt. 852) 346 at 414 - 415. The Application to join a party to a suit and by implication to amend the suit is better done at the beginning of trial in order to give the in-coming party ample opportunity to face and prepare for the questions in controversy which is in tandem with the Rules of Natural Justice, equity and good conscience. Amendment can still be effected even one of the parties his closed its case and the other opened his own. See EQUITY BANK OF NIGERIA LTD. V. ONARA (1999) 10 NWLR (Pt. 621) 147. The Motion for Amendment ought to have been allowed to be moved as the sole purpose was to bring to the front burner of the case the real issue in controversy between the parties. see MAMMAN V. SALAUDEM (2005) 12 KLR (pt. 2O4 - 207) 3095 at 3110.
In seeking to join the 3rd Respondent, the trial Court was being called to exercise its discretion while bearing in mind the provisions of Section 36(1) of the Nigeria Constitution on fair hearing the said application could only be refused if it would cause unnecessary delay or if it is irrelevant, useless or would raise technical issues which is not the case here. The Learned trial Judge on his own brought the issue of irrelevancy in his Ruling and used same to decide the application that was not even moved in the first place.
Furthermore, by allowing the Preliminary Objection to be taken first when pleadings have not been first settled by the Respondents and the point of Law on the alleged misjoinder of parties raised in their Statement of Defence, the Learned trial Judge gave the Respondents the opportunity to introduce demurrer into the proceedings which has since been abolished.
For the Lower Court to form an opinion and take whatever step necessary in the circumstance of this case, the Respondent ought to have brought their action properly and the Court made to hear them in line with Order 24 Rule 3 of the cross River state (civil Procedure) Rules of 1987 , see also AKINADE V. NASU & ORS (1999) 2 NWLR (PT. 592) 57O, ADESANYA V. OLAYENI.
In the light of the foregoing Learned Appellant counsel urged the Court to resolve this issue in their favour.
Issue No. 2 - that is whether the Learned trial Judge was not wrong when he refused to hear the Motion for joinder ad Amendment, yet in considering the Preliminary Objections, he veered off course to comment on the merit of the said Motion which was not under consideration and then proceeded to refuse it without hearing the Appellant on it (distilled from Ground 3), Learned Appellant counsel submitted that the Learned trial Judge not only erred in Law in refusing to take the Motion for joinder but committed more error in Law when he proceeded into the merit of the Motion itself without affording the Appellant the opportunity to move same or address him on it in his Ruling as could be seen on page 77 , lines 32 - 34 and page 78, lines 1 - 5 of the Record of proceedings. By so doing Learned Appellant's Counsel submitted that the Learned trial Judge denied the Appellant the right of fair hearing as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) . on the Fundamental Right of fair hearing, Learned Counsel referred the Court to the case of FAGBULE v. RODRIGUES (2003) FWLR (pt.137) 1171.
The Court should hear every Motion before it no matter how frivolous or otherwise of the prayers on the face of it. Also a Court should not ignore a Motion or process before it and give a decision one way or the other in line with the decision of Tobi JSC in NEWSWATCH COMM . LTD. V. ATTA (2006 7 MJSC 88 at 104: ONYEKWULUJE V, ANIMASHAUN (1996) 3 NWLR (Pt. 439) 637.
The said Motion in Contention and Amendment as herein before stated is for the joinder of the 3rd Defendant. The Motion itself is not contentions nor was there any indication that the other party intended to challenge the Application. It was, therefore, a harmless Motion to build the case of the Appellant. It is within the rights of the parties to amend their pleadings be it Statement of Claim or defence provided no real justice will be done to the other party.
Therefore, Learned Appellant Counsel contended that it was wrong when his Lordship went out of his way to opine that granting the Amendment would be giving the suit a Defendant for the first time; see UBN PLC V. DAFIAGA (2000) 1 NWLR (pt. 640) 175.
The Rules of Amendment of pleadings are very flexible and greatly depend on the discretion of the Court; see FBN (NIG.) PLC V. M. O. KANU SON & CO. (1999) NWLR (pt. 619) 484.
In the light of the above, Learned Appellant Counsel then urged the Court to resolve this issue No. 2 in their favour.
Issue No. 3 - on whether the Learned trial Judge was not wrong when he held that from the facts averred by the Appellant in his Statement of Claim, the Respondents were not necessary parties to the suit (distilled from Ground 4). Learned Appellant Counsel contended that from all the correspondence with the Respondents show the estate was being managed by the Co-operative Society and the council chairman, Hon. Egwu Arong Egwu sued as 1st Defendant (now 1st Respondent) and that of a point, the Co-operative was sent packing and it was the 1st Respondent alone in conjunction with 2nd Respondent that were jointly in charge.
Worthy of note is that none of the said correspondence was challenged in any Statement of Defence since none was filed. Rather, the Respondents accepted hook line and sinker all that the Appellant averred in his statement of claim and Amended Statement of claim which they elected to challenge by way of Preliminary objection instead of responding to the said averments.
On the unchallenged evidence of the Appellant at the lower Court, Learned Appellant counseI referred to HASSAN v. ATANYI (2003) 21 WRN 1 at 125 where it was held that evidence that is neither challenged nor debunked and which is relevant to the issue in controversy ought to be accepted and relied upon.
The Respondents he submitted are the proper parties in the suit because they will be directly or financially affected by the outcome of the judgment. see UBA PLC V . SAMBA PETROLEUM CO. LTD. (2003) FWLR (Pt. 137) 1199. It is even the Law that misjoinder does not defect a suit and on the irrelevance of non-joinder or misjoinder of parties to the validity of an action. see A. G. RIVER STATE V. A. G. AKWA IBOAA STATE (2011) ALL FWLR (Pt. 579) l023 at 1096, NNAJI V. NIGERIA FOOTBALL ASSOCIATION (2011) ALL FWLR (pt. 559) 1195.
In view of the above, Learned Appellant's counsel then urged the Court to resolve this issue in favour of the Appellant.
Issue No. 4 which is to the effect of whether the Learned trial Judge was not wrong when he punitively and without adhering to laid down principles awarded a cost of N5,000.00 in favour of each Respondents to the cumulative effect of N10,000.00 (Distilled from Ground 5). Learned counsel submitted that the action of the Learned trial Judge was oppressive and punitive without justification in that the Respondents only filed a Notice of Preliminary Objection each without first complying with the rules of settling of pleadings. The Respondents also entered appearance twice is 14th December, 2006 and 6th February , 2007 and no more .
There was, therefore, no basis for the award of N10,000.00 as cost against the Appellant. Therefore, he urged the Court to resolve this issue in their favour.
Finally, he urged the Court to allow the appeal and set aside the Ruling of the lower Court. Issues distilled in this appeal will be considered as formulated by the Appellant in the way they are formulated.
As stated earlier on in the course of this judgment, that the Respondents did not file any Respondent's Brief of Argument.
An issue may then be raised as to whether the non-filing of the Respondent's Brief of Argument will make the Appellants appeal to succeed. All the some, the non-filing of the Brief of Argument in respect of this appeal by the Respondent to the issues ventilated by the Appellant in his Brief of Argument does not mean that it is a work-over for the Appellant.
The Appellant still has to justify the appeal against the judgment or decision of the Learned trial Judge based on the strength of his case as borne and by the Records of appeal in this matter. See UNITY BANK PLC & ANOR V. EDWARD BONHART (2008) 7 NWLR (Pt. 1086) 372 AT 413 where OGBUAGU JSC held as follows:
The failure of a Respondent to file a reply Brief is immaterial. This is because an Appellant will succeed on the strength of his own case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant's Brief in so far as such is borne out by the Records. In other words, it is not automatic. An Appellant must succeed or fall on his own Brief. See JOHN HOT VENTURES LTD. V. OPUTA (1996) 9 NWLR (Pt. 470) l0l; ONYEJEKWE V. NIGERIAN POLICE COUNCIL (1996) 7 NWLR (pt. 463) 704, WAZIRI V. WAZIRI (1998) 1 NWIR (Ft. 533) 322; UBA , PLC V. AJILEYE (1999) 13 NWLR (pt. 633) 116.
It is on the basis of the above principle that I shall now commence my consideration of the issues distilled by the Appellant in this appeal as hereinafter set out hereunder.
On Issue No. 1 & 2 on whether the Learned trial Judge was not wrong when he refused to hear the Motion for joinder and Amendment, yet in considering the Preliminary Objection , he veered off course to comment on the merit of the said Motion which was not under consideration and then proceeded to refuse it without hearing the Appellant on it.
At the lower Court, there were three outstanding applications ready for hearing and determination thus:
1. Motion on Notice for joinder and Amendment dated 26th October, 2006 and filed same date.
2. Notice of Preliminary Objection dated and filed on the 27th October, 2006 by the 2nd Respondent.
3. Notice of Preliminary Objection on the Grounds that the Court lacks the jurisdiction to entertain the suit filed on the l5th November, 2006 by the 1st Respondent.
In the presence of the above three application, how should a Court exercise it discretion in handling both the 1st Motion meant to regularize the process and the other two meant to terminate the proceedings?
In MOBIL PRODUCING NIGERIA UNLIMITED & ANOR V. NONOKPO (2003) 18 NWLR (Pt. 852) 346, Uwaifo JSC held that:
...The practice has always been to give priority to hearing such Motion seeking to regularize a process. That is the hallmark of a proper exercise of discretion. If the Motion to regularize succeeds, the other Motions or Motion seeking to terminate the proceedings will be withdrawn and in appropriate cases, these will be compensation by way of costs. This has eloquently been laid down by this Court. See NALSA & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR (Pt.212) 652, LONGJOHN V. BLAKK (1998) 6 NWLR (pt. 555) 524 at 550, 551 -552.
In the instant case, the Learned trial Judge instead of first taking the Motion for joinder and Amendment that was meant to build up the suit, he elected to take the preliminary objections of the 1st and 2nd Respondents based on the jurisdiction of the Court meant to terminate the suit in limine. This was against the decision of the Supreme Court in MOBIL PRODUCING NIGERIA UNLIMITED V. NONOKPO & ANOR (supra). This means that as of the 19th March,2007 when a Ruling on this matter was delivered, the Appellant's Motion for joinder and Amendment dated 26th october, 2006 and file same date was still not moved and yet the Learned trial Judge without hearing the Appellant on the said application went out of his way to make some comments on the merit of the said Motion and refused it. It is on the basis of that, that I hereby agree with the Appellant's submission that the Learned trial Judge was wrong by so doing.
Issue No. 2 is therefore resolved in favour of the Appellant.
On Issue No. 3 as to whether the Learned trial Judge was not wrong when he held that from the facts averred to by the Appellant in his Statement of Claim, the Respondents were not necessary parties to the suit. It must be stated that under our Laws, one reason which makes it necessary to make a person a party to an action is so that he would be bound by the result of the action.
This leads me to the consideration of a necessary party as the lower Court have pronounced that the Respondents are not necessary parties to the suit contrary to the submission of the Appellant necessary parties are likened to those who are not only interested in the subject matter of the proceeding but also who in their absence, the proceedings would not be fairly dealt with. In other words, the question to be settled in the action between the parties must be a question which cannot be properly settled unless they are parties to the action, instituted by the Plaintiff .
From the nature of the suit and the reliefs there is no iota of doubt in my mind that the Respondents are necessary parties in this suit because they would be directly or financially affected by the outcome of the judgment in this case. See GREEN V. GREEN (1987) NWLR (Pt. 61) 481, the Respondents are necessary parties because they are not only interested in the subject matter of the proceedings but they constitute those who in their absence, the proceedings could not be fairly dealt with.
And so I hereby resolve issue No. 3 in favour of the Appellant.
Issue No. 4 concerns the issue whether the Learned trial Judge was not wrong when his Lordship awarded a cost of N5,000.00 in favour of end of the Respondents to the cumulative effect of N10,000.00. It is trite that a Court has an absolute and unfettered discretion to award or refuse costs in any particular case but that discretion must be exercised judicially and judiciously.
Usually, costs follow events and are not awarded as a punitive means nor are they designed or meant to be a bonus to the successful party. And although granted by way of an indemnity to a successful party, an unsuccessful party ought not to be indemnified for no good reason. See ADENAIYA V. GOVERNOR IN COUNCIL, WESTERN REGION (1962) 1 SCNLR 442, REWANE V. OKOTIE-EBOH (1960 I SCNLR 461: U.S.N. LTD V. NWAOKOLO (1998) 5 NWLR (pt. 100) 127. Assessment of the amount allowed in terms of the award of costs is the responsibility of the Court who determines what reasonable costs in the circumstances are. And when the Court in exercise of its discretion orders the costs payable and does so without being capricious id est in the sense that it is ordered in honest exercise of his discretion.
The lower Court awarded a cost of N5,00O.OO each to the Respondents id est N10,000.00 one in all. Indeed, in my own assessment, the amount of costs awarded cannot be said to be exceptionally high or punitive as to hold that the Court's discretion was capriciously not be in the interest of justice to interfere with the award of costs made by the trial Court.
As with all exercise of discretion, an Appellant Court will not interfere with the exercise of discretion by a lower Court merely because it would have exercised its discretion, differently if faced with the same set of facts.
The award of N5,OOO.OO each to the Respondents is not punitive after all costs are awarded for the purpose of meeting the legitimate expenses of the successful party, either, wholly or partially as the Court sees it see ADBUJI V. LAYINKE & ANOR (2002) 98 LRCN 1139; C.C.B.NIG. PLC V; OKPALA (1997) 8 NWLR (Pt. 518) 673. Issue No. 4 is hereby resolved against the Appellant.
Having resolved all the issues in this appeal except Issue No. 4, it is my considered view that the appeal is meritorious and it is hereby allowed. The Ruling of the lower Court is hereby set aside.
IBRAHIM MOHAMMED MUSA SAULAWA J.C.A.:ýHaving read the judgment just delivered by my learned brother, the Hon. Justice Paul obi Elechi, JCA, I have no hesitation in concurring with the reasoning and conclusion reached therein to the effect that the instant appeal is unmeritorious. Hence, I too hereby dismiss the appeal and affirm the decision of the High Court of Cross River State, calabar Judicial Division, delivered on September 28, 2012 in Suit No. HC/255/20O9.
ONYEKACHI AJA OTISI J.C.A.: My learned Brother, Paul Obi Elechi, JCA, made available to me a draft copy of the leading Judgment in this appeal, in which he allowed the appeal. I am in complete agreement with his reasoning and conclusion, which I adopt as mine.
I also allow this appeal and I abide by the orders made in the leading Judgment.