CORAM

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Ugochukwu Anthony Ogakwu JSC

Mohammed Mustapha JSC

James Gambo Abundaga JSC

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PARTIES

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1. PREDRA PROPERTIES LIMITED AND

2. MR. SAMSON OMEBIJE

APPELLANTS 

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1.  MR. KELVIN AYOGU AND ANOR

2. CHIEF CYRIL AYOGU

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellants herein were the Claimants before the High Court of the Federal Capital Territory, Abuja

The Appellants entered a transaction with the Respondent for which money exchanged hands. The transaction did not come to fruition, consequent upon which the Respondent demanded for a refund of the money he had paid to the Appellants. In this regard, a Memorandum of Understanding was entered into between the parties on the mode and manner of the repayment to the Respondent. It is this Memorandum of Understanding which is between the Appellants and the Respondent that formed the fulcrum of the Appellants’ action.

The trial Court ruled in favour of the Respondents. Dissatisfied by the decision, the Appellants filed the instant appeal. The Respondents cross-appealed to express their dissatisfaction with a part of the judgment.

 

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HELD

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Appeal dismissed

Cross Appeal dismissed

 

 

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ISSUES

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1. Whether the trial Court has the right to chose [sic] for the Claimants who to sue and who not to sue to realize their claims?

2. Whether the Appellants’ right to fair hearing was not breached when the learned trial Judge suo motu raised and decides [sic] that the Claimants’ statement of claim does not show any relief against the party sought to be joined without affording parties an opportunity of addressing him on that issue?

3. Whether the lower Court was not deprived of jurisdiction to utilize the Respondent’s reply on point of law that has been earlier?

4. Whether Paragraph 2 of the Cross Respondents’ Motion on Notice M/9014/2021 constitutes legal arguments, opinions and conclusions contrary to Section 115 (1) and (2) of the Evidence Act, 2011 as to have rendered the entire motion on Notice incompetent?

 

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RATIONES DECIDENDI

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OBJECTION – WHERE AN OBJECTION TO A GROUND OF APPEAL OR ISSUE FOR DETERMINATION IS ARGUED AS AN ISSUE DISTILLED FOR DETERMINATION IN THE APPEAL

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It is hornbook law that an objection to a ground of appeal or an issue for determination cannot merely be argued under an issue distilled for determination in the appeal. When as in this case the objection is only against one of the grounds of appeal, then the Respondent ought to articulate his objection in a Motion on Notice. The Respondent not having filed an application in that regard cannot by mere arguing the point as an adjunct to an issue for determination secure the striking out of the Appellants’ ground one of the grounds of appeal and the issue distilled therefrom. See ODUNZE vs. NWOSU (2007) 13 NWLR (PT 1050) 1, EFCC vs. AKINGBOLA (2014) LPELR (24257) 1 at 47-49 and YAKUBU vs. ODIDI (2022) LPELR (57897) 1 at 6-7. – Per U. A. Ogakwu, JCA

 

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SUO MOTU – CONDUCT OF COURTS WHEN ISSUES ARE RAISED SUO MOTU

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By all odds, it is settled law that a Court should not raise an issue suo motu and unilaterally resolve the same without affording the parties a hearing, particularly the party that may be adversely affected by the issue raised: OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (19030) 1 at 25, LEADERS & COMPANY LTD vs. BAMAIYI (2010) LPELR (1771) 1 at 11-12 and SANI vs. AYE (2022) LPELR (58096) 1 at 12. – Per U. A. Ogakwu, JCA

 

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SUO MOTU – WHEN A COURT CANNOT BE SAID TO HAVE RAISED AN ISSUE SUO MOTU

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The law is settled beyond peradventure that a Court is bound to make a pronouncement on the disparate contentions placed by the parties before it and their effect on the matter. See EJOWHOMU vs. EDOK-ETER MANDILAS LTD (1986) 9 SC 41 at 102-103, AKINTOLA vs. SOLANO (1986) LPELR (360) 1, MARINE MANAGEMENT ASSOCIATES INC vs. NMA (2012) LPELR (20618) 1 at 27, ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 17 and NKUMA vs. ODILI (2006) LPELR (2047) 1 at 17. In the circumstances, the lower Court making a pronouncement on the legal effect of the submissions made before it, is not raising an issue suo motu; rather, it is an integral consideration of the case made out by the parties. In aliis verbis, the lower Court, drawing the necessary inferences from the materials before it is not raising an issue suo motu; rather, it is the lower Court discharging its adjudicatory functions and due application of the law to arrive at the correct decision. In IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) 6 NWLR (PT 1084) 612 at 642 or (2008) LPELR (1476) 1 at 28-29 Tobi, JSC stated:

“A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”

Also, in ENEKWE vs. IMB LTD (2006) LPELR (1140) 1 at 25 Tobi, JSC stated:

“A Judge has the right in our adjectival law to use particular words or phrases, which in his opinion, are germane to … facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu.”

Furthermore, in OTU vs. ANI (2013) LPELR (21405) 1 at 31-34, Garba, JCA [now JSC] quipped:

“…it is clear that so long as the issue is derivable from the facts and evidence of the parties before the Court, the Court cannot be said to have raised it suo motu for reason only that it used particular words or phrases not used by the parties to describe the issue.”

See also ADEMOK CONTINENTAL LIMITED vs. OGUN STATE GOVT (2022) LPELR (56418) 1 at 11-16, SAHARA ENERGY RESOURCES LTD vs. OYEBOLA (2020) LPELR (51806) 1 at 75-79, TOWOJU vs. GOV OF KWARA STATE (2005) LPELR (5390) 1 at 38-39, CHIDI vs. CONSOLIDATED HALLMARK INSURANCE PLC (2018) LPELR (44384) 1 at 16-24, TSEGBA vs. REGD TRUSTEES OF MISSION HOUSE (2018) LPELR (44242) 1 at 51-52, FCMB vs. ACTION ALLIANCE (2018) LPELR (44445) 1 at 10-11 and FINNIH vs. IMADE (1992) 1 NWLR (PT 219) 511 at 537.  – Per U. A. Ogakwu, JCA

 

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AFFIDAVIT – THE DUTY OF COURTS TO EVALUATE AND ASCRIBE PROBATIVE VALUE TO AN AFFIDAVIT WHETHER IT IS CHALLENGED OR NOT

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…the evidence in an affidavit, even if unchallenged and uncontroverted, still has to be evaluated by the Court to see if it is credible enough to sustain the relief or prayer sought. See OGUNDIPE vs. A-G KWARA STATE (1993) 2 NWLR (PT 313) 588, NEKA B. B. B. MANUFACTURING CO. LTD vs. ACB LTD (2004) 15 WRN 1 at 27 and HARUNA vs. SALAU (1998) 7 NWLR (PT 559) 653 at 659. So, the fact that there was no counter affidavit filed did not imply that the Appellants’ application must willy-nilly succeed. The lower Court discharged its primary duty by evaluating the affidavit evidence and then found and held that it was not of a quality to ground the grant of the application: 12 BASKET FOODS LTD vs. FCMB (2020) LPELR (50281) 1 at 18-19. It is therefore idle for the Appellants to seek a reversal of the decision of the lower Court merely based on its having failed to grant the application based on the unchallenged and uncontroverted affidavit evidence.

The lower Court by evaluating the affidavit evidence and ascribing probative value thereto did not descend into the arena. In FAWEHINMI vs. AKILU (1987) 4 NWLR (PT 67) 797 at 843, Eso, JSC stated:

“A Judge is certainly not a robot nor an automation who once he is fed data produces an automatic answer. In every action before his Court, in every step taken by a Judge, his discretion is called into play whether in interpreting the law or in deciding an action one way or another. If it is otherwise, giving effect to the rule of law would amount to dexterity in manipulating data which are fed into a machine called judex.”

Equally, in MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2006) ALL FWLR (PT 298) 1313 at 1345, Pats-Acholonu, JSC held:

“… it must be equally admitted that Judges are not robots (or zombies) who have no mind of their own … They are intrepid by their great learning and training and can distinguish in order to render justice to whom it is due.” – Per U. A. Ogakwu, JCA

 

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JUDGES – THE POSITION AND DUTY OF JUDGES IN ADJUDICATION

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It must be remembered that it is apothegmatic to state that the law is in the bosom of the judge, lex in gremis iudicis sedere. The Judge is a repository of the law, or in the Latinism jurat novit curia (the Court knows the law); and so, the Judge is bound to bring his erudition to bear in the determination of a matter before him. See OKAFOR vs. NWAZOJIE (2015) LPELR (40690) 1 at 12-13 and MALHOTRA vs. BANK OF SINGAPORE LTD (2014) LPELR (22442) 1 at 28.  – Per U. A. Ogakwu, JCA

 

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JOINDER – WHETHER AN APPLICATION FOR JOINDER OF PARTIES IS GRANTED AS A MATTER OF COURSE

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It is abecedarian law that a claimant in an action has the monopoly of deciding who to sue in a proceeding. The claimant has the right to sue whoever he perceives has wronged him and who he thinks he has a right to claim any relief against. It is rudimentary to state that a party who brings an action knows precisely who it is he believes that has wronged him, thereby giving him his cause of action. It is in this wise that the Appellants sued the Respondent only. Having commenced the action, the Court before which the action is pending became dominis litis, thereby ending the Appellants’ monopoly as to who to sue. The addition of any other defendant to the action can only be with the leave of Court. It is in this knowledge of the settled state of the law that the Appellants applied for leave to join an additional defendant in the action as its monopoly on who to sue without reference to the Court came to an end when the action was filed.

Undoubtedly, the law in its wisdom recognises that there may be situations where all the persons who ought to be sued in an action are not sued. In this wise, the law makes provisions for such persons to be joined as defendants to the action, where appropriate. The provision of Order 13 Rule 4 of the FCT Rules, 2018 is relevant in this context. It stipulates:

“Any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. Judgment may be given against one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.” (underlining supplied)

By the above provision, the joinder of a person as a defendant is not granted as a matter of course. The grant of the joinder is not inevitable upon the application being filed. The grant of the order is not a mechanical process, like a locomotive in the process of locomotion. The person to be joined as defendant must be a person against whom the right to any relief is alleged to exist. – Per U. A. Ogakwu, JCA

 

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CONTRACT – WHETHER A CONTRACT CAN BE ENFORCED AGAINST A PERSON THAT IS NOT A PARTY TO IT

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…it is elementary law that a contract cannot be enforced against a person who is not party to it, neither can he sue on the contract even if it is made for his benefit. Put differently, only parties to a contract can sue or be sued on the contract: MAKWE vs. NWUKOR (2001) 14 NWLR (PT 733) 356, IDUFUEKO vs. PFIZER PRODUCTS LTD (2014) 12 NWLR (PT 1420) 96 at 101, REBOLD INDUSTRIES LTD vs. MAGREOLA (2015) 8 NWLR (PT 1461) 210 and A-G FEDERATION vs. A.I.C. LTD (2000) 4 WRN 96 at 103.  – Per U. A. Ogakwu, JCA

 

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PARTIES – DISTINCTION BETWEEN TYPES OF PARTIES TO A SUIT – THE REASON THAT QUALIFIES A PERSON AS A NECESSARY PARTY

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In the leading case of GREEN vs. GREEN (1987) LPELR (1338) 1 at 20, Oputa, JSC graphically explained the distinction between “proper parties”, “desirable parties” and “necessary parties” in the context of an application for joinder of parties as follows:

“Proper parties are those who, though not interested in the plaintiff’s claim, are made parties for some good reasons e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be, fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. Amon v. Raphael Tuck & Sons (1956) 1 W. B. 357; Settlement Corporation v. Roshschild (No.21) (1959) 1 W.L.R. 1664; Re Vandervills Trust (1971) A C. 812; Re Vandervelle Trust (1969) 3 All E R. 497.”

The law is now well settled that for a person to be joined in an action, he must be someone whose presence is necessary as a party. What makes a person a necessary party is not, of course, merely that he has relevant evidence to give on some of the questions involved. That would only make him a necessary witness, but not a necessary party. It is also not merely that the person has an interest in the correct solution of some questions involved and has thought of some relevant arguments to advance. If it were so, it would mean that an infinite variety of persons could claim to be entitled to be heard in a case. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and his presence before the Court may be necessary to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the cause or matter. See AMON vs. RAPHAEL TUCK & SONS LTD (1956) 1 Q.B. 357 at 380, PEENOK INVESTMENT LIMITED vs. HOTEL PRESIDENTIAL (1982) 12 SC 1, IGE vs. FARINDE (supra) at 50, JIA ENTERPRISES LIMITED vs. BRITISH COMMONWEALTH INSURANCE CO. LIMITED (1962) 1 ALL NLR (PT 2) 363 and UKU vs. OKUMAGBA (1974) ALL NLR (PT 1) 475. – Per U. A. Ogakwu, JCA

 

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JOINDER OF PARTIES – THE PRINCIPLES GOVERNING THE JOINDER OF PARTIES

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In expounding the principles governing the issue of joinder of parties in AZUBUIKE vs. PDP (2014) LPELR (22258) 1 at 16-17, Fabiyi, JSC stated:

“This Court per Oputa, JSC in the same case of Green v. Green (1987) 3 NWLR (Pt. 60) 480 laid it down that in order to decide the effect of non-joinder or misjoinder of a party, the Court should ask itself the following questions: (a) Is the cause or matter liable to be defeated by non joinder? (b) Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant? (c) Is the 3rd party a person who should have been joined in the first instance? (d) Is the 3rd party a person whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter?”

See also APC vs. UDUJI (2020) 2 NWLR (PT 1744) 571, ONEMU vs. COMMISSIONER FOR AGRICULTURE & NATURAL RESOURCES, ASABA (2019) LPELR (47391) 1 at 22-23 and BELLO vs. INEC (2010) LPELR (767) 1 at 77 where Adekeye, JSC intoned:

“In determining whether to join a person as a defendant in a suit, the Court will consider the following questions that is: a) Is it possible for the Court to adjudicate upon the cause of action set up by the plaintiff unless the person is added as a defendant. b) Is the person someone who ought to have been joined as a defendant in the first instance. c) Is the cause or matter liable to be defeated for non-joinder. These questions must be answered in the affirmative for the joinder to be justifiable.” – Per U. A. Ogakwu, JCA

 

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JOINDER – CONDUCT OF COURTS WHERE A PARTY IS NOT JOINED

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Concomitantly, since there is no joinder, there cannot be an order to amend the processes to reflect the name of a party who was not joined. The legal principle remains sublato principali tollitur adjunctum (co. Litt 389) [the principal being taken away, its adjunct is also taken away]: ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 269, OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 32 and ADEMOK CONTINENTAL LTD vs. OGUN STATE GOVT. (supra) at 22. – Per U. A. Ogakwu, JCA

 

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ERROR – WHETHER EVERY ERROR COMMITTED BY THE COURT IS FATAL TO THE CASE

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It is settled law that it is not every peccadillo or error committed by the lower Court that will result in its decision being set aside on appeal except where it occasioned a miscarriage of justice. See LARMIE vs. DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) LPELR (1756) 1 at 24, OLONADE vs. SOWEMIMO (supra) at 23, APP vs. OBASEKI (2021) LPELR (58374) 1 at 41-42 and AKOMOLAFE vs. GUARDIAN PRESS LTD (2010) LPELR (366) 1 at 10 and 25. – Per U. A. Ogakwu, JCA

 

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AFFIDAVIT – FACTS OR CIRCUMSTANCES WHICH ARE PERMISSIBLE FOR USE IN AN AFFIDAVIT

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Now, Section 115 of the Evidence Act, 2011 enacts as follows:

“115. (1) Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.

(2) An affidavit shall not contain extraneous matter, by way of objection, prayer, or legal argument or conclusion.

(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.

(4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place, and circumstance of the information.”

The Cross Appellant’s objection on the defect in the affidavit is that it offends Section 115 (2) of the Evidence Act. The stipulations of Section 115 of the Evidence Act, 2011 is a reproduction of the provisions of Sections 86, 88, and 89 of the Evidence Act, 1990. It is rudimentary law that any paragraph of an affidavit which offends against the provisions of Section 115 of the Evidence Act may be struck out, but if it is not struck out, no weight should be attached to it:JOSIEN HOLDINGS LTD vs. LORNAMEAD LTD (supra), FMG vs. SANI (NO. 2) (1989) 4 NWLR (PT 117) 624, EDU vs. COMM. FOR AGRIC. (2000) 12 NWLR (PT 681) 318 and A-G ANAMBRA STATE vs. A-G FEDERATION (2007) LPELR (24343) 1 at 20. Indeed, it seems to be settled law that any paragraph of an affidavit which offends against the provisions of Section 115 of the Evidence Act ought not to be acted upon. It is liable to be discountenanced and struck out. See OSIAN vs. FLOUR MILLS (1968) 2 ALL NLR 13, EURO BATI CONCEPT S.A. vs. TROPICAL INDUSTRIAL CO. LTD (2001) 18 NWLR (PT 744) 165, A-G ADAMAWA vs. A-G (FED) (2005) 18 NWLR (PT 958) 581 at 625 and 657-658 and LAGOS STATE GOVERNMENT Vs. NDIC (2020) LPELR (49781) 1 at 11-13.

An affidavit meant for use in Court stands as evidence and must as near as possible conform to oral evidence that is admissible in Court. A deponent to an affidavit is therefore to confine himself to facts and circumstances. See BAMAIYI vs. THE STATE (2001) 4 SC (PT 1) 18 at 29. Often times, it is only a thin line that separates facts or circumstances which are permissible for use in an affidavit, from depositions which are legal argument or prayer or conclusion, which are not permissible for use in an affidavit. Happily, the Supreme Court per Uwaifo, JSC in BAMAIYI vs. STATE (2001) 4 SC (PT 1) 18 at 32-33 laid down the test to be applied as follows:

“The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as submission which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and it is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections, and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence, while conclusions should not be drawn by witnesses but left for the Court to reach.”

See also GENERAL & AVIATION SERVICES LTD vs. THAHAL (2004) LPELR (1317) 1 at 19-20, LAGOS STATE GOVERNMENT Vs. NDIC (supra) at 15-17 and POLARIS BANK vs. BELLVIEW AIRLINES LTD (2021) LPELR (56258) 1 at 45-47. – Per U. A. Ogakwu, JCA

 

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NECESSARY PARTY – WHETHER THE PHRASE NECESSARY PARTY IN AN AFFIDAVIT OFFENDS S.115 OF THE EVIDENCE ACT – WHERE A PARAGRAPH IN AN AFFIDAVIT IS IN THE FORM OF EVIDENCE WHICH A WITNESS MAY BE ENTITLED TO PLACE BEFORE THE COURT

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The phrase necessary party is a term of art, encapsulating various facts and circumstances. The said term of art having been employed in an affidavit does not make it offend Section 115 (2) of the Evidence Act, as it is neither “objection, prayer or legal argument or conclusion.” The same is equally true of the factual statement that if an order for joinder is that the processes would have to be amended and that it will be done in a timely manner, I am not in any doubt whatsoever that the said paragraph 2 of the affidavit is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath. It is not in the form of prayers and legal arguments which may be pressed by counsel in Court, and which are not fit for a witness in oral testimony or in affidavit evidence, neither are they in the form of conclusions that can only be reached by the Court and not by a witness. In aliis verbis, the said paragraph 2 contains statement of facts which a witness may be entitled to place before the Court in his testimony on oath. It does not offend against the provisions of the Evidence Act: AGIP (NIG) PLC vs. OSSAI (2016) LPELR (40976) 1 at 16-18 and 21-23 and SEABULK OFFSHORE OPERATORS NIG LTD vs. AUGUSTA OFFSHORE S. P. A. (2019) LPELR (50510) 1 at 25-26. – Per U. A. Ogakwu, JCA

 

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CASES CITED

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NIL

 

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act 2011

3. High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018

4. Evidence Act, 1990

 

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