3PLR – JULIANA IBIYEMI AKINBINU V. YISA EYIFUNMI OSENI & ANOR

Published by Law Nigeria Admin at November 7, 2018

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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JULIANA IBIYEMI AKINBINU

YISA EYIFUNMI OSENI & ANOR

IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 10TH DAY OF JANUARY, 1992

SC.131/87

3PLR/1992/55 (SC)

OTHER CITATIONS

(1992) 1 NWLR (Pt. 215) 97

(1992) 23 N.S.C.C (Pt I) 22

BEFORE THEIR LORDSHIPS

ADOLPHUS GODWIN KARIBI-WHYTE, JSC

SALIHU MODIBBO ALFA BELGORE, JSC

ABUBAKAR BASHIR WALI, JSC

EPHRAIM OMOROSE IBUKUN AKPATA, JSC

UCHE OMO, JSC

BETWEEN

JULIANA IBIYEMI AKINBINU – Appellant(s)

AND

YISA EYIFUNMI OSENI
AKIN OJO – Respondent(s)

APPEARANCES

B. O. Ogundipe (with him. K. E. Odogwu) – For Appellant

AND

A. Adeyemo – for the 1st Respondent
2nd Respondent in person. – For Respondent

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – ISSUES FOR DETERMINATION: Propriety of court raising an issue suo motu
PRACTICE AND PROCEDURE – APPEAL – ISSUES FOR DETERMINATION: Need for issues for determination to relate to ground of appeal
PRACTICE AND PROCEDURE – COURT – JURISDICTION: Effect of pronouncement made by court where it lacks jurisdiction

CHILDREN AND WOMEN LAW: Women in business – execution of legal documents – dealings with legal practitioners – when fraud may be inferred – attitude of court thereto

ETHICS – LEGAL PRACTITIONER: Solicitor-client relationship – duty to advise properly – when fraud could be inferred therefrom – attitude of court thereto – effect

MAIN JUDGMENT

O. I. AKPATA, J.S.C. (Delivering the Leading Judgment):

This appeal relates in the main to the right or otherwise of a person not a party in a case to appeal against an order of a trial court allowing one of the parties to amend his or her pleading. Incidental to it is the competence, or lack of it, of the Court of Appeal to pronounce on the role of the trial Court in granting the amendment when it (the Court of Appeal) had held that the appellant was not competent to appeal against the order. The plaintiff, Yisa Oseni claimed from the defendant, Juliana Akinbinu, the sum of N140,000.00 being money payable by her to him as per a loan agreement dated 25th November, 1977. It was the contention of the defendant in her statement of defence that the said loan agreement prepared by one Mr. Akin Ojo, a solicitor, was obtained by fraud. She went on to state that Mr. Ojo brought two deeds of conveyance along with the said loan agreement, and explained to her, an illiterate, that the said loan agreement “was the same document as the aforesaid deeds”.

At the hearing of the action before Balogun, J., the solicitor was called as a witness by the plaintiff, apparently to refute the allegation of fraud in the preparation and execution of the loan agreement. As PW.3, the solicitor testified to the effect the he prepared the loan agreement on the instruction of the defendant and that he delivered the agreement to her in her premises on 24th November, 1977. According to him the defendant read it over and expressed her satisfaction as to its contents.

The solicitor was subjected to rigorous cross-examination by the defendant’s counsel who suggested to him that he facilitated the fraud committed on her thus:

“The truth of the matter is that when you presented Exhibits D1 and D2 already executed by the Vendors with Exhibit P1 not yet executed to the defendant you explained to the defendant that Exhibits D1 and D2 (which were already executed by the Vendors) purport that the defendant had paid the total considerations of the purchase prices on the two conveyances amounting to N70,000.00 and that you said as she had not infact paid those purchase prices she had to execute Exhibit P1 which explained to her showed that she was owing the Vendor that sum of N70.000.00?”

The learned trial judge interjected thus:

“The question is at variance with the case pleaded by the plaintiff and I think it is my duty to disallow the question even under cross-examination. I have in mind paragraph 5 (viii) and (ix) of the 2nd Amended S/D and filed on 11th December, 1984. Don’t you agree Mr. Sofunde.”

Learned counsel for the defendant then intimated the court that he would apply to amend his pleadings. The learned trial judge expressed his views thus:

“I think it will be necessary if you want to amend your pleading to bring a formal application and amend the pleading before putting the question in that form. It is important also to stress that in this case there is a counter-claim.”

The cross-examination continued. At a stage counsel for the plaintiff objected to a question suggesting that Mr. Ojo “secured the confidence of the defendant by playing on the fact that both of you come from the same state”. On the court indicating that the question was relevant to serious allegation made in paragraph 5 of the statement of defence and counter-claim against the witness, and requesting counsel to read out paragraph 5 (xi), counsel withdrew his objection. Learned trial judge however got the court registrar to read out the relevant paragraph of the statement of defence.

The court then asked the witness to answer the question put to him by counsel for the defence, that is, “you secured the confidence of the defendant by playing on the fact that both of you come from the same state”. To this question the witness answered:

“I am not feeling well and I am no able to read document. I have been standing all day. I have benefitted by the reading done by the Registrar if you allow me to come back another day, I will read”.

Both counsel indicated that they were in favour of the court granting an adjournment.

The trial court ruled thus:

“Having heard learned counsel for the parties the issue raised by the court, and as neither counsel wished to address the court except as to the point of adjournment. I think in the interest of justice, the witness should be served with a copy of the writ of summons and pleadings in this case at this stage of the proceedings by each party on or before the adjournment date, to enable him know of the allegations being made against him in these proceedings and to enable him to consider whether or not he ought to be joined as a party in this action. At the adjourned date, and before continuing is with further evidence, I will call on learned counsel for each party to address me, having regard to Peenoks Case (1982) 12 SC. 1 on –

(a) Whether the action is properly constituted without Mr. Akin Ojo being joined as a party: and

(b) Whether or not Mr. Akin Ojo should be joined as a party, and in view of the other decisions cited by the Supreme Court in Peenok’s Cases. I order accordingly. Further hearing in this case is adjourned to 13th June, 1985. The witness address is No. 10 Akinsanmi Street, Obanikoro”.

Before the next adjourned date, counsel for the defendant filed a formal application to join Mr. Akin Ojo as a co-defendant in the action, and for leave to amend the defendant’s statement of defence and counter-claim. The application was moved on 13th June, 1985. It was opposed by counsel for plaintiff and Mr. Ojo who had been put on notice. The learned trial judge in his ruling granted his application and explained that Mr. Ojo was being joined as additional defendant to both the claim of the plaintiff and counter-claim of the defendant. He ordered that “the writ, the statement of claim and the statement of defence and counter-claim shall be amended as prescribed under the rule of court”.

Against the ruling of the learned trial judge, Mr. Ojo, joined as a co-defendant, appealed to the Court of Appeal. In the Court of Appeal issues were formulated by the parties in their respective briefs of argument. Oral submissions were also canvassed. In his judgment, Nnaemeka-Agu, J.C.A. (as he then was) found the issues framed by the appellant “rather diffuse”, and the issues framed by learned counsel for the second respondent, that is, the defendant, “appeared to have left out an important aspect of the case, that is, in relation to the intervention by the learned trial judge”. He then regarded the issues for determination as the first issue formulated by the plaintiff/appellant and the three issues identified by the defendant/respondent. The four issues put together were:

“(i) Whether the learned trial judge was right in advising the learned counsel for the second respondent to bring an application for amendment in order to amend an allegation of fact contained in paragraph 5(ix) and (x) of the second respondent’s pleading by substituting a new allegation of fact as contained in paragraph 5(ix) and (x) of the amended statement of defence:

(ii) Whether the appellant is a necessary party having regard to the issues formulated between the first and second respondents;

(iii) If the answer to question (ii) is in the negative whether it is desirable to have the appellant joined having regard to the said issues; and

(iv) If the answer to questions (ii) and (iii) is in the affirmative whether the fact that the appellant is a witness in the action obviates a necessity to have him joined as a party”.

After full consideration of the issues involved and the submissions of counsel, the then learned Justice of the Court of Appeal in his judgment allowed the appeal and set aside the order of Balogun, J .,joining the appellant as the second defendant in the suit and made an order remitting the case for trial de novo before another judge.

Kolawole, J.C.A., also delivered a considered judgment and arrived at the same conclusion reached by Nnaemeka-Agu, J.C.A., (as he then was).
In a dissenting judgment well articulated, Kutigi, J.C.A., was of the view that the application for amendment was properly made and granted. He however made the point that “it is not the business of the learned trial judge to offer any advice suo motu to counsel in a case before him on how to conduct his case. If a judge does that he is thereby taking sides and has become a contestant rather than an umpire”.

He accordingly held that the appeal must fail and went on to dismiss it.
The defendant has now brought her grievance against the majority decision of the Court of Appeal to this Court. Two grounds of appeal were originally filed. One of them complained against the majority judgment of the Court of Appeal that Mr. Akin Ojo was not a desirable party to be joined as a co-defendant.
However amended grounds of appeal were filed in this Court on 22nd June, 1990 pursuant to order of this Court made on 19th March, 1990. They were four in all. The following issues have been formulated in the amended appellant’s brief filed on 22nd June, 1990 by the defendant/appellant as arising for determination in the appeal:

“(1) Whether the 2nd respondent would be prejudiced by the order granting the amendment;

(2) Whether the 2nd respondent had any locus standi to complain about the amendment:

(3) Whether the learned justices of the Court of Appeal were right in coming to the conclusion that it was the learned trial judge who prompted the amendment: and

(4) Whether it was open to the Court of Appeal to decide the issue as to whether or not the learned trial judge prompted the amendment”.

It is obvious from the amended grounds of appeal and the issues formulated as arising from them that the defendant/appellant has conceded that Mr. Akin Ojo was wrongly joined as a party by the learned trial judge. The question of joinder is therefore not for determination in this appeal.

Mr. Akin Ojo, the second respondent in this appeal, also filed an amended respondent’s brief on 8th June, 1990 and discarded that filed by him on 27th October, 1987. The plaintiff/respondent filed what he erroneously called “first respondent’s reply brief’ on 10th May, 1988.lt was in actual fact first respondent’s brief and not first respondent’s reply brief. No amended brief was filed subsequent to the defendant’s filing amended grounds of appeal and amended appellant’s brief. The issues formulated in the plaintiff/respondent’s brief and the submissions therein arc thus based on the original grounds of appeal which have been abandoned by the defendant/appellant. The issues formulated by the second respondent (Mr. Ojo) in his amended brief are:

“1. Whether the learned Justices of the Court of appeal were right in coming to the conclusion that it was the learned trial judge who prompted the amendment.

Whether the 2nd respondent was prejudiced by the role of the learned trial judge in prompting the amendment.
Whether the learned justices of the Court of Appeal in the exercise of their discretion were right in remitting this case for trial de novo before another judge”.

Mr. Ojo as the second respondent in his brief of argument contended that the first and fourth grounds of appeal are misconceived as they do not arise from the decision of the learned Justices of the Court of Appeal. It was also his contention that the second issue proposed for determination by the appellant is irrelevant and mis-conceived as the learned Justices of the Court of Appeal specifically held that he, the appellant in that court, was not a party in the suit before the amendment was ordered and therefore could not oppose the amendment.

It is necessary in order to have a clear understanding of the issues involved in this appeal to first comprehend the reasoning of the learned Justices of the Court of Appeal in reaching their decisions in respect of the amendment granted by the trial judge.

In his judgment Justice Nnaemeka-Agu was satisfied that the joinder of Mr. Ojo by the trial judge which he himself “instigated” was improper. He went on to reason that since the joinder was improper the question of the amendment “should no longer concern the appellant (Mr. Ojo) but the first respondent”. The then learned Justice of the Court of Appeal made the point however that the issue of amendment, which according to him was suggested by the learned trial judge, raised a matter so fundamental to the administration of justice that an appellate court ought not to close its eyes to it once it has been raised. After making reference to the fact that we operate an adversary system in the administration of justice he pointed out that an amendment must not be prompted or suggested by the judge. He went on to point out the potential injustice inherent in a judge advising a party to amend his pleadings. He concluded thus:

“So by the very fact that the trial judge at the trial advised the respondent to amend her pleading, he had robbed the 1st respondent and the appellant of the advantage of raising the fact that evidence called at the trial was at variance with the pleading. On this fundamental breach of the rule of impartial administration of justice this appeal ought to be allowed and the case remitted for trial de novo before another Judge.

For all I have said above, I allow the appeal of the appellant and set aside the order of Balogun, J., joining the appellant as the 2nd defendant in this suit.

I also remit the case for trial de novo before another judge”.

It can be seen from the above quoted conclusion of the learned justice that while he specifically set aside the order of the learned trial judge joining Mr. Ojo as the second defendant, the order of the learned trial judge that “the writ, the statement of claim and the statement of defence and counter-claim shall be amended as prescribed under the rule of court” was not specifically set aside.
In his own judgment, Kolawole, J.C.A., made the point that the appeal against the order of amendment was fundamental. He went on to criticize the trial judge for prompting the application for amendment. He concluded thus:

“I do not entertain any doubt that it is a guiding principle of cardinal importance on question of amendment that, generally speaking, all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties” ….

(See G.L. Baker Ltd. v. Medway Building & Supplies Ltd. (1958) 3 ALL E. R. 540, page 546).

However in view of the order which I propose to make, it is my view that only a party to a proceeding can oppose such proceedings from being amended. Until the appellant properly becomes a party in the suit there is no question in controversy between him and the 2nd respondent. It is clear to me however that whatever order I make. I must take cognisance of the fact that the learned judge has entered into the arena of the contest. It will therefore not be in the interest of justice that he should continue with the hearing of the suit.
From all that I have stated earlier the appeal against the order of joinder of the appellant is allowed, the claim in the action can be determined without the participation of the appellant as a party. The result is that I set aside the order of Balogun, J., adding the appellant as a party. The case is remitted to the lower court for hearing before another judge.”

It is also crystal clear that Kolawole, J.C.A., did not set aside the order of amendment made by the trial judge on the ground that “only a party to a proceedings can oppose such proceedings from being amended”. In the instant case the plaintiff, who is first respondent in this appeal, has not appealed against the order granting the amendment prayed for by the defendant, now appellant. It is against this background one should set out grounds I and 4 which the second respondent submits are mis-conceived.
Ground 1with particular (a) reads:

“1) The learned justices of the court of Appeal erred in law in their majority decision in holding that the amendment of the statement of defence granted by the learned trial judge was wrong. Particulars of Error

a) They failed to observe that the amendment did not materially or substantially alter the nature af the defendant’s case.
b) ………………………………………….
c) ………………………………………….
d) . ………………………………………….

I am in agreement with the second respondent. Mr. Ojo, that the learned justices of the Court of Appeal did not in their majority decision hold that the amendment of the statement of defence granted by the learned trial judge was wrong or that the appellant could not amend her statement of defence and counter-claim. They only frowned at the conduct of the trial judge for allegedly instigating the amendment. Any issue formulated reflecting the complaint in ground One will therefore be irrelevant. Ground Four which I shall reproduce fully reads:

“The learned justices of the Court of Appeal erred in law in failing to dismiss the appeal of the 2nd Respondent against the decision of the learned trial judge allowing the Appellant to amend the Statement of Defence and Counter-Claim.

Particulars of Error

(a) In so far as it is not disputed that the ruling granting the 8 prayer for an amendment was the same ruling by which the 2nd Respondent was joined as a Defendant to the action the 2nd Respondent could not be said to have been a party to the action at the time of the amendment.

(b) In any event, in view of the judgment of the Court of Appeal allowing the 2nd Respondent’s appeal against the order of joinder the 2nd Respondent ceased to be a party.

(c) In the light of (a) and (b) foregoing the order of amendment made cannot be said to be pre-judicial to the 2nd Respondent and/or the court of Appeal had no jurisdiction to entertain the said appeal on the issue of amendment.

(d) Having regard to the decision of the Court of Appeal in (b) foregoing its further decision to the effect that the question of an amendment should no longer concern the 2nd Respondent and the state of the law the Court of Appeal had no jurisdiction to entertain the 2nd Respondent’s appeal.”

I find nothing wrong in this ground of appeal. It is a legitimate complaint in the circumstances of this appeal. Whether the ground or complaint will succeed is something to be looked into presently.

Before considering the relevance or otherwise of the issues formulated, it is also necessary to set out portions of ground two and ground three in full. They read:

“(2) The learned Justices of the Court of Appeal erred in law in holding that on the undisputed material on record the learned trial judge prompted the appellant to apply to amend her pleading that it is clear from the said material that she applied because the learned trial judge would not allow proceeding which went to no issue to be led.

Particulars of Error

a)   ………..
b)   ……….
c)   ……….

(3) The learned justices of the Court of Appeal erred in law in entertaining the issue of who it was who prompted the Appellant’s application for an amendment when:-

a) It was not an issue raised or properly raised by any of the parties:
b) It is not one of those issues which ought to be raised by a court suo motu;
c) The issue did not form one of the grounds upon which the 2nd Respondent or any of the respondent objected in the High Court to the amendment being granted and no leave was sought and/or obtained to raise and argue a point not raised and argued in the court below:’

While issues three and four formulated in the appellant’s brief seem relevant, issue one which apparently relate to ground one is irrelevant. Issue two has not in my view been correctly framed to reflect the complaint in ground four. It seems to me that the issue raised by ground four with its particulars can be said to be whether the learned justices of the Court of Appeal, Nnaemeka-Agu, JCA, (now JSC.) and Kolawole, JCA., ought not to have dismissed the second respondent’s appeal touching on the amendment granted by the trial court having allowed the second respondent’s appeal against the order of joinder and having held that only a party to any proceedings can oppose such proceedings from being amended.

I must say that issue three in the second respondent’s brief which is

“Whether the learned justices of the Court of Appeal in the exercise of their discretion were right in remitting the case for trial de novo before another judge” is most irrelevant to this appeal. No ground of appeal has questioned the order remitting the suit to another judge for hearing and determination.

The point I wish to take first is the question “whether it was open to the Court of Appeal to decide the issue as to whether or not the learned trial judge prompted the amendment.” Learned counsel for the appellant pointed out that the majority decision of the Court of Appeal was to the effect that the second respondent had no Locus Standi to question the order of the trial judge granting the amendment, he not being a party in the suit. He therefore contended that once the second respondent had no locus Standi to complain, however fundamental the issue might have been, the Court of Appeal had no jurisdiction to look into the matter.

There is no doubt that the learned justices of the Court of Appeal were conscious of the fact that the question as to whether the learned trial judge instigated or prompted the amendment was stricto sensu not an issue in the appeal before them. Nnaemaka-Agu, JCA, was of the view however that an appellate court ought not to close its eyes to it once it has been raised “because it touches on a matter so fundamental to the administration of justice in this country.” Kolawole, JCA., on his part made the point that regardless of the fact that there was no question in controversy between the second respondent and the appellant, he “must take congnizance of the fact that the learned trial judge has entered into the arena of the contest.”

This was a case in which one of the grounds of appeal before the Court of Appeal was incompetent. I think it is valid to say that where a Court of Appeal has jurisdiction to entertain an appeal but one of the grounds of appeal is incompetent. in that the appellant has no locus standi to complain and therefore is not competent to bring the matter before the court, the court of Appeal is deprived of jurisdiction to make observations, not even in the form of obiter dicta, in relation to the incompetent ground of appeal. Obiter dicta, although not directly upon the question before a judge, and therefore not binding as precedent, are only permissible where the judge is vested with jurisdiction to resolve the question in controversy before him. It seems to me that the fact that a matter appears to be fundamental to the administration of justice will not by itself entitle a judge to pronounce on it when the matter in the first place should not have been before him. I am therefore of the strong view that the strictures directed at the trial judge in respect of the amendment allegedly instigated or prompted by him were uncalled for in the circumstances of the case.

Did the trial court really prompt or instigate the amendment? It is necessary in answering this question to set out fully the relevant portion of the proceedings in issue. I have at the initial stage of this judgment done so. I do so again for ease of reference. At page 46 learned counsel for defendant/appellant put to the second respondent who was then testifying as PW.3 an obviously incriminating question. As the record shows at page 47 the following transpired thereafter:

“Court:

The question is at variance with the case pleaded by the plaintiff and I think it is my duty to disallow the question even under cross-examination. I have in mind paragraph 5 (viii) and (ix) of the 2nd Amended SID and filed on 11th December. 1984. Don’t you agree. Mr. Sofunde.”

A.L.A.L. BALOGUN -O.F.R.
(JUDGE)
Mr. Sofunde

“I will apply to amend my pleadings'”

Court

” I think it will be necessary if you want to amend your pleading to bring a formal application and amend the pleading before putting the question in that form. It is important also to stress that in this case there is a counter-claim.”

It is clear to me from the above passage called from the record of appeal that when the trial judge disallowed counsel’s question because, according to him, it went to no issue, counsel without any prompting from the trial judge indicated immediately that he would apply to amend his pleading. It was after counsel had made his intention to amend known to the court that the learned trial judge made the point that such an application for amendment should be formal and that the question which he had disallowed would not be countenanced without such an amendment. In my view, the criticism levelled at the trial judge was unjustified. The justices of the Court of Appeal no doubt over sighted the indication given by counsel that he would apply to amend his pleadings. In effect what was regarded as a prompting or an instigation by the trial judge was not considered along with counsel’s prior indication that he would amend the statement of defence. The final issue which calls for a decision is whether the Court of Appeal ought not to have struck out or dismissed the second respondent’s appeal against the order granting amendment having held that only a party to any proceedings can oppose an application for amendment. As I have already pointed out, in its majority decision the Court of Appeal made no order arising from the incompetence of the second respondent to appeal against the order relating to amendment of the statement of defence. A cursory glance at the conclusion of Nnaemeka-Agu and Kolawole, J.J.C.A., would give the impression that the appeal of the second respondent against the order of amendment was upheld by them and that the order made by trial Judge was set aside. A close scrutiny of the conclusions reached by the two justices suggests that while they frowned at the role played by the learned trial judge in the matter of the amendment, they stopped short of setting aside the amendment because the second respondent was not an aggrieved party. It was only the order for joinder made by the trial judge that was set aside. The position however is that the Court of Appeal having held that the second respondent could not complain against the amendment ought to have gone further to strike out the appeal touching the amendment.

It is not in dispute in this appeal that the second respondent had no standing to appeal against the order granting the prayer to amend. In passing I wish to state however that if the second respondent thought he had interest in the matter and desired to appeal he ought to have sought the leave of the High Court or Court of Appeal pursuant to section 222(a) of the Constitution of the Federal Republic of Nigeria. 1979.

In the circumstance the defendant/appellant’s appeal succeeds. The order of the learned trial judge granting the amendment prayed for by the defendant is hereby affirmed. The appeal of the second respondent to the Court of Appeal against the, the order of amendment, which ought to have been struck out, is hereby struck out. For the avoidance of doubt the case stands remitted to the High Court for hearing and determination by another judge. Costs in this Court are assessed at N1,000.00 against the second respondent in favour of the defendant/appellant. Costs awarded in the Court below are set aside. Each party to bear his or her own costs in that Court.

A. G. KARIBI-WHYTE, J.S.C.: I have had a preview of the judgment of my learned brother Akpata, JSC, I agree with his reasoning and conclusion allowing the appeal. I wish however to make some contribution to the issues raised because of my views which though identical, have been approached slightly differently.

My learned brother Akpata, J.S.C. has stated the facts of the case lucidly and in considerable detail. I adopt them. Although the facts so stated are relevant to the appeal before us, a considerable part of them could be ignored without affecting the conclusions reached in the determination of the issues litigated in this appeal.

The principal of the two issues litigated in this appeal is the issue whether a witness in the proceeding against who the Defendant had alleged the perpetration of fraud in the transaction, subject matter of the action, and against who neither the plaintiff in his claim, nor the Defendant in his counter claim and sought any relief, could subsequently be made a party to the action. The other issue and not less important, is whether the learned trial judge was right to have prompted, if he actually did, the amendment to the statement of defence, and consequent application to join the witness as a party to the action. Both issues are of great importance and judicial significance in our administration of justice. The facts similarly and concisely stated are as follows.

Plaintiff claimed from the defendant the sum of N140,000 being money payable to him as per loan agreement dated No. 25, 1977, Defendant denied the claim in its entirety. In her statement of defence, she alleged that the loan agreement relied up by plaintiff, and prepared by Mr. Akin Ojo, as her solicitor was a fraud on her. Mr. Akin Ojo appeared at the trial as a witness for the plaintiff. During his evidence in Chief, he admitted preparing the loan agreement on the instruction of the Defendant, and that he delivered the agreement to heron the 24th Nov. 1977. He stated in his testimony that the defendant read over the agreement and expressed satisfaction.

Learned counsel to the Defendant subjected the witness, Mr. Akin Ojo, to a rigorous and searching Cross-examination about ‘his role as a Solicitor in the transaction between the parties. It was suggested to him in several ways, unequivocally, that he as the Solicitor, facilitated the fraud on the Defendant. The averments in paragraph 5(viii)(ix)(x)(xi) of the statement of defence were relied upon for this line of cross-examination. They are as follows-

“(viii) That the Deeds of Conveyance registered as No. 18 at page 18 in volume 1665 and as No.19 at page 19 in Volume 1665 bore the same date as Exhibit’ A’ attached to the Statement of Claim and both Deeds as well as Exhibit’ A’ were prepared by the Plaintiff’s Solicitor, Mr. Akin Ojo.

(ix) That the said Mr. Akin Ojo presented both Deeds of Conveyance Nos. 18 and 19 at pages 18 and 19 in Volume 1665 of the Land Register and Exhibit’ A’ to the Defendant whilst representing to her at the same time that Exhibit’ A’ was the same document as the aforesaid Deeds Nos. 18 and 19 at pages 18 and 19 in Volume 1665 of the Lands Register.

(x) That the Defendant being all illiterate within the meaning of the illiterate’s protection Law believed the afore-said representations of Mr. Akin Ojo, Legal Practitioner, the Plaintiff’s Solicitor in Exhibit’ A’ and in Deeds of Conveyance Nos. 18 and 19 at pages 18 and 19 of Volume 1665 of the Lands Register, kept in Lagos.

(xi) That the said Mr.Akin Ojo, Legal Practitioner, acted for both the Plaintiff herein as Vendor and the Defendant herein as Purchaser in the above transactions and the Defendant will inter alia rely on a letter dated 2nd December 1977 written by Mr.Akin Ojo to the defendant and demanding the sum of N2,071.40 payable to him as professional fees and incidental expenses in respect of these transactions”.

The learned trial Judge disallowed the question on the ground that the answer would be at variance with the pleadings in the case. He particularly referred to paragraphs 5(viii) and (ix) of the second amended statement of defence, filed on the 11th December, 1984 as the relevant averments.

At this point, Mr. Sofunde, learned counsel to the defendants sought an adjournment to enable him amend the statement of defence, to enable him put his questions in the form disallowed by the court. The learned trial Judge then expressed the following opinion, at p.47.

The Cross-examination continued. Mr. Sofunde concentrated his cross-examination on the effort to establish the allegation of fraud made against the witness Akin Ojo. in the Defendant’s statement of defence. The Objection of learned counsel co the plaintiff to the suggestion under Cross-examination that the witness took advantage of the fact that he and the Defendant came from the same State in committing the fraud against her was rejected by the learned trial Judge. The learned trial Judge considered that the question was relevant, and asked the Registrar of the Court to read out the relevant paragraph of the statement of defence to the defendant, who refused to read the relevant paragraphs.

When the learned trial Judge insisted that the witness shall answer the question, which was put by the court as follows – at p.51

“You secure the confidence of the defendant by playing on the fact that both of you come from the same state”.

The witness declined to answer the same, pleading on grounds of sudden illness, to be allowed to come back another day. On the agreement of counsel on both sides, the court granted an adjournment.

The learned trial Judge granted the adjournment and ruled as follows – at p.52

“Having heard learned counsel for the parties on the issue raised by the court and as neither counsel wished to address the court except as to the point of adjournment. I think in the interest of justice, the witness should be served with a copy of the writ of summons and pleadings in this case at this stage of the proceedings by each party on or before the adjournment date, to enable him know of the allegations being made against him in these proceedings and to enable him to consider whether or not he ought to be joined as a party in this action. At the adjourned date, and before continuing with further evidence, I will call on learned counsel for each party to address me, having regard to Peenock’s case (1982) 12 S.C. 17 on-

(a) Whether the action is properly constituted without Mr. Akin Ojo being joined as a party: and

(b) Whether or not Mr. Akin Ojo should be joined as a party and in view of the other decisions cited by the Supreme Court in Peenock’s Cases, I order accordingly. Further hearing in this case is adjourned to 13th June, 1985. The witness address is No. 10 Akinsanmi Street, Obanikoro”

Before the next adjourned date, learned counsel to the defendants brought an application to join the witness Mr. Akin Ojo as a co-defendant in the action, and for leave to amend the statement of defence and counter-claim. Mr. Akin Ojo was put on Notice.

Learned counsel to the defendants moved his motion on the 13th June, 1985. The application was opposed by learned counsel to the plaintiff and Mr. Ojo, who had been put on Notice.

I think it is fair to reproduce the opinion of the learned trial judge on the submission of leaned counsel to the plaintiff, opposing the joinder of Mr. Akin Ojo. Learned counsel submitted that there was nothing in the statement of claim or the counter-claim, which can amount to any relief against Mr. Akin Ojo, sought to be joined. He also said “that nothing which the court will decide in this case on the basis of the pleadings of the parties can affect Mr. Akin Ojo. If Mr. Akin Ojo is joined all he needs to do is to bring an application to strike him out”
The following then appears from the record of proceedings at p.55

“Court. Such an application must fail if an order had been made to join him by the court because his application would then be an abuse of process. Don’t you agree“.

Mr.Adeyemo. I don’t agree. If this application succeeds then Mr. Akin Ojo, will be a defendant to the main claim and also to the counterclaim ……”

The learned trial Judge nevertheless granted the application. His reason for so doing as explained by him was that Mr. Ojo was being joined as additional defendant to both the claim of the plaintiff and counterclaim of the Defendant. He ordered that “the writ, the statement of claim and the statement of defence and counterclaim shall be amended as prescribed under the rule of court”.
Mr. Akin Ojo appealed against the ruling to the court of Appeal relying on three grounds of appeal. Grounds 1 and 2 of the grounds of appeal relate to the validity of the joinder. Ground 3 complained about the order for the amendment of the 2nd amended statement of defence. The Appellant and Respondent filed and exchanged briefs of argument. They relied on the briefs in their argument before the court below. The court below considered the ten issues for determination formulated by counsel for the Appellant as prolix and inappropriate in accentuating the real issue in controversy in the appeal. The issues formulated were reduced to four. The first issue related to the propriety, if at all, of the learned trial judge advising learned counsel to the defendant to apply to amend paragraphs 5(ix) and (x) of the statement of Defence. by substituting another paragraph 5(ix) and (x). The remaining issues relate to the joinder of the Appellant as a defendant in the action and counter-claim.
The Court by a majority decided that the joinder of the Appellant was improper, as this was not necessary for the determination of the dispute between the parties. The Court held that Mr. Akin Ojo was at all times a necessary nor a desirable party. Furthermore, the court below held that the question of the amendment of the statement of defence suggested by the learned trial Judge constituted a fundamental breach of the rules of impartial administration of justice.

The appeal was allowed and the case remitted for trial de novo before another Judge.

Kutigi, J.C.A dissented. He was of opinion that it was necessary and in the F interest of justice to join the Appellant as a party to the action. Again, he was satisfied that the amendment challenged was properly made and granted. Although he observed that it is not the business of the learned trial Judge to offer any advice suo motu to counsel in a case before him on how to conduct his case ….. The Defendant appealed against the decision. This is the appeal now before us.

Two original grounds of appeal were filed. Subsequently, pursuant to order of this court, dated March 19, 1990, other grounds of appeal were filed. There are now four grounds.

I do not consider it necessary to reproduce the grounds of appeal as the issues for determination formulated adequately identify and cover the issues in the grounds of appeal. Appellant formulated the following issues:-

“(1) Whether the 2nd respondent would be prejudiced by the order granting the amendment:

(2) whether the 2nd respondent had any locus standi to complain about the amendment;

(3) Whether the learned justices of the Court of Appeal were right in coming to the conclusion that it was the learned trial judge who prompted the amendment: and

(4) Whether it was open to the Court of Appeal to decide the issue as to whether or not the learned trial judge prompted the amendment;

It is clearly unarguable from the above issues that the only issue for determination in this appeal arising from the issues formulated is the question of the amendment of the statement of defence.

Mr. Akin Ojo, the second respondent in this appeal, filed an amendment respondent’s brief dated 8th June. 1990. The plaintiff also filed a brief of argument, referred to as the 1st Respondent’s brief of argument based on the amended grounds of appeal. 1st respondent did not file an amendment brief of argument following the amended brief of argument of the defendant. Hence, the issues formulated in the plaintiff/1st respondent brief are those based on the original grounds of appeal, abandoned by the defendant/appellant.
Mr. Ojo, the 2nd Respondent formulated the following issues:-

“1. Whether the learned Justices of the Court of Appeal were right in coming to the conclusion that it was the learned trial judge who prompted the amendment.

Whether the 2nd respondent was prejudiced by the role of the learned trial judge in prompting the amendment,
Whether the learned justice of the Court of Appeal in the exercise of their discretion were right in remitting this case for trial de novo before another Judge”.

It seems to me that even though the appellant and the 2nd Respondent formulated the issues for determination on the grounds of appeal based on the errors emanating from the amendment of the statement of defence, the formulation of the issues are not identical. However, both formulations make prejudice to the second respondent prompting of the amendment by the learned trial judge, issues for determination. They differ in the issue of the locus standi of the 2nd respondent, contained in Appellant’s formulation, and the exercise of the discretion to order a trial de novo in 2nd Respondent’s formulation.
A composite reading of the two sets of the issues for determination formulated would result in the compromise of the following four issues –

(a) Whether the learned justices of the Court below were right in holding that the learned trial judge prompted the amendment and that the 2nd Respondent was prejudiced by the amendment.

(b) Whether the 2nd Respondent had locus standi to complain about the amendment,

(c) Whether it was open to the Court of Appeal to decide the issue whether or not the learned trial judge prompted the amendment.

(d) Whether the learned justices of the Court of Appeal were right in remitting the case for trial de novo before another judge.

It is convenient to begin with issue (b) which questions the locus standi of the 2nd Respondent. The 2nd Respondent was Appellant in the court below. It is pertinent to observe that the only parties to the action in the Court of first instance as endorsed on the writ of summons and indicated in the statement of claim are the 1st Respondent before us, as the plaintiff, and the Appellant before us as the Defendant. The 2nd Respondent now before us, was at all material times in the court of trial, a witness in the case. It is also of critical importance to appreciate the fact that the amendment of the statement of defence became necessary. It became obvious to learned counsel to the defendant that the evidence sought to be elicited from the cross-examination of the 2nd respondent as a witness was not supported by the relevant averments of the statement of defence relied upon.

I consider it pertinent to discuss the reasoning of the majority decision relating to the amendment in issue in this appeal.

All the justices of the court below dealt with the issue of the amendment of the statement of defence, Nnaemeka-Agu, J.C.A., (as he then was, but now of this court) took the view that the attitude of the learned trial judge raised “a question of much more fundamental importance to the administration of justice; whether the role played by the learned trial judge was in accord with the administration of justice”.

I have already reproduced in this judgment, the relevant part of the dialogue between learned counsel to the Defendants and the learned trial judge during the cross-examination of the witness. Mr. Akin Ojo. In the leading judgment of Nnaemeka-Agu, J.C.A., he observed that the amendment was challenged on the ground that the role played by the learned trial judge was no longer that of an impartial umpire but that he had conducted the trial as an inquisitorial proceeding. It was argued that the gratuitous advice to learned counsel to the defendant to amend the averment in paragraphs 5(viii) and (ix) so as to enable a question pertaining to an allegation of fraud to be properly put to the witness, to the plaintiff, and if the joinder stays the appellant, was an improper interference with the proceedings.

The learned Justice of the Court of Appeal, then went on to say

“I must point out that if my above views on the joinder of the appellant are correct, this question should no longer concern the appellant but the 1st respondent. But it is my view that it touches on a matter so fundamental to the administration of justice in this country that an appellant court ought not to close its eyes to it once it has been raised.’

The learned justice of the Court of Appeal had already held that the joinder of the appellant, Mr. Akin Ojo, was improper. Accordingly, not being a party to the case, the question of the amendment no longer concerned him. This is why I am in complete agreement with the 2nd respondent in the appeal before us that in the Court below the question of the validity of the amendment was neither considered nor decided. It was indeed not in issue. The issue of the propriety of the conduct of the Judge was considered on the general principle that by advising the respondent to amend her pleading, the learned trial judge had robbed the plaintiff and the appellant of the advantage of raising the fact that evidence called at the trial was at variance with the pleading. This being a fundamental breach of the rule of the impartial administration of justice. the appeal ought to be allowed.

Kolawole, J.C.A. was clearly unequivocal in his consideration of the issue of the amendment. He also did not pronounce on the validity vel non of the amendment. He however, after stating the well settled principle that the Judge must allow the parties to the contest to fight out their case, and that once he entered the arena he ceases to be an independent umpire. The learned justice of the Court of Appeal stated the rule that amendments can be made at any stage of the proceedings, but that it is not the duty of the Court to force upon parties amendments for which they do not ask.

Without pronouncing on the validity of the amendment, the learned Justice came to the following conclusion at p.85 –

“However, in view of the order which I propose to make it is my view that only a party to a proceedings can oppose such proceedings from being amended. Until the appellant properly becomes a party in the suit there is no question in controversy between him and the 2nd respondent.”
respondent,”

The opinion of Kutigi, J.C.A, is not different. Referring to the rule of the Judge in respect of the amendment, he stated as follows – at p.91

“My first observation is that while the case was in progress and a witness was being cross-examined. it was no business of the Court to interrupt proceedings by offering unsolicited and gratuitous advice to the parties as to who should or should not be a party to the case. The judge being an umpire should not descend into the arena himself.”

In his conclusion agreeing with the submission that the amendment did not alter the nature of the claim, he reiterated his earlier opinion stating as follows – at p.96.

“But I have to repeat here again that it is no business of the learned trial judge to offer any advice suo motu to counsel in a case before him on how to conduct his case. If a judge does that he is thereby taking sides and has become a contestant rather than an umpire.”

In the opinion of the learned justice of the Court of Appeal, the application for the amendment, baring his observation on the issue of the conduct of the learned trial Judge, was properly made and-granted. It seems to me that Kutigi, J.C.A, was not prepared to reverse the ruling on the amendment which did not alter the nature of the claim merely because of the conduct of the learned trial Judge.

It is significant however, that none of the Justices in the Court below set aside the order of amendment made by the learned trial Judge. Nnaemeka-Agu, Kolawole. J.J.C.A., were of the opinion and so held that only a party to proceedings can validly oppose the application for an amendment. It follows therefore that Mr. Akin Ojo, who was only a witness and not a party to the case, lacked the locus standi to oppose the amendment.

Mr. Akin Ojo, the 2nd respondent to this appeal has submitted, and I entirely agree with him, that the majority decision did not hold that the amendment of the statement of defence by the learned trial Judge was wrong, or that appellant could not amend the statement of defence and counter-claim. They could not have so held since they had no jurisdiction to do “so. It was agreed that Mr. Akin Ojo, had no locus standi at the time. Their lordships held that the conduct of the learned trial judge offended against our constitutional safeguards and fundamental principles of the administration of justice. In that sense any decision subsequent was irretrievably tainted with bias and injustice and ought not be allowed to stand. This can only apply in the valid exercise of the jurisdiction of the court. The amendment of the statement of defence not having been set aside in the Court below, is not an issue for determination in this appeal. Hence any issue formulated seeking the determination of the amendment is irrelevant.

I shall now turn to issue (d) which seeks a determination of the propriety of the exercise of the discretion of the majority in remitting the case for trial de novo in the High Court before another Judge. No ground of appeal has raised the issue. It is well settled that issues for determination are formulated on the basis of grounds of appeal filed. – See Ugo v. Obiekwe (1989) 1 NWLR (Pt.89) 566. The issue formulated must therefore relate to the ground or grounds of appeal challenging the correctness of the judgment appealed. – See Modupe v. State (1988) 4 NWLR (Pt. 57) 130. Hence any issue formulated aliunde, cannot but be obviously irrelevant. Such issue ought not be countenanced. So is issue (a) in this appeal.

Having disposed of issues (b) and (d), I shall now turn to issues (a) and (c) 8 which concern the determination whether it was open to the court below to decide whether the learned trial Judge prompted the amendment, and whether the 2nd respondent was prejudiced thereby.

The contention of learned Counsel to the appellant before us was that absent locus standi in the 2nd respondent, to challenge the amendment, not being a party to the case the court below had-no jurisdiction to decide the issue. The question of the fundamental breach of the principles of the administration of justice by the conduct of the learned trial Judge notwithstanding, the amendment remains valid.

It is clear from the dicta of their Lordships of the Court below in this case that they were quite conscious of the fact that the question whether the learned trial Judge prompted the amendment was not an issue in the appeal before them. It seems to me that they relied on considerations of general principles of the administration of justice in determining the appeal. Nnaemeka-Agu, J.C.A. in his judgment observed at p.73 that the issue

“…. raises a question of much more fundamental importance to the administration of justice: whether the role played by the learned trial Judge was in accord with due administration of justice,”

Although conceding that the question of amendment did not concern the appellant in the court below, but the 1st respondent, the learned Justice of the Court of Appeal went on to say, at p.74

“But it is my view that it touches on a matter so fundamental to the administration of justice in this Country that an appellate court ought not to close its eyes to it once it has been raised.”

Similarly, Kolawole, J.C.A., recognising that appellant was not a party to the case in respect of the amendment, stated at p.85,

“Until the appellant properly becomes a party in the suit there is no question in controversy between him and the 2nd respondent. It is clear to me however that whatever order I make, I must take cognizance of the fact that the learned judge has entered into the arena of contest. It will therefore not be in the interest of justice that he should continue with the hearing of the suit.”

A careful reading of the judgments of the learned justices discloses that they limited their decisions and Orders specifically to the joinder in respect of which the Court had jurisdiction. It seems to me that the order remitting the case to the High Court for trial de novo, was to enable the parties to hear the case again after the amendment and the joinder. This will enable the case to be heard by a judge who had not entered the arena of contest.

The Court of Appeal is only entitled to make pronouncements in respect of an appeal in which it has jurisdiction, and the parties of the person before it, seeking its relief has the locus standi in respect of the manner. See Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) 517 Where the Court has no jurisdiction, or the party seeking relief has no locus standi, any observations it makes in respect of the matter is made without jurisdiction. It’s pronouncements do not even enjoy the status of an obiter dicta.

Hence where the Court has no jurisdiction, the fact that the conduct of the judge in the trial appears to have or actually offended the fundamental principles of the administration of justice, cannot vest jurisdiction in the court in respect of the matter. If there was no jurisdiction Queesito cadit. Since in the instant case, the matter was in law not before him, any pronouncements made in respect of such matter is of no legal validity.

I therefore agree with the appellants that the trenchant observations and adverse criticisms made of the conduct of the learned trial Judge with respect to the amendment of the statement of defence was without jurisdiction, and did not affect the amendment properly and validly granted on the application of the defendant.

The other issue which, though closely related, should be considered on its own, is whether the learned Judge prompted the amendment of the statement of defence.

It is necessary for a proper appreciation of the issue to trace the genesis of the amendment. I have already in this judgment set out concisely the events leading to the amendment. At the risk of obvious tedious repetition, I set out the sequence hereunder.

The cross-examination related to the instructions given to the witness by the defendant as regards the preparation of “Exhibit “P1” witness had claimed the instructions where oral, but that he made jottings of them in file which was in his office, but was not with him in the Court. Learned Counsel suggested that witness was not given any instructions by the defendant. The witness rejected the suggestion.

Learned Counsel then suggested that the witness explained “Exhibit P1,” whilst presenting Exhibits D1 and D2” to the defendant and that the defendant never read it. Witness rejected the suggestion and answered that he was not present at the execution of “Exhibits P1 and D2.” Then comes the question leading to the application for amendment.

“Q. The truth of the matter is that when you presented “Exhibits D1 and D2“, already executed by the vendors, with “Exhibit P1″ not yet executed, to the defendant you explained to the defendant that “Exhibits D1 and D2″ (which were already executed by the vendors) purports that the defendant had paid the total considerations of the purchase prices on the two conveyances amounting to N70.000 and that you said as she had not in fact paid those purchase prices she had to execute “Exhibit P1” which you explained to her showed that she was owing the vendor that sum of N70,000.00?”

Court: The question is at variance with the case pleaded by the plaintiff and I think it is my duty to disallow the question even under cross-examination. I have in mind paragraph 5(viii) and (ix) of the Amended S/D and filed on 11th December, 1984. Don’t you agree Mr. Sofunde?

A.L.A.L. Balogun – O.F.R.
(JUDGE)

Mr. Sofunde,

I will apply to amend my pleadings.

“Court – I think it will be necessary if you want to amend your pleading to bring a formal (sic) applicant and amend the pleading before putting the question in that form. It is important also to stress that in this case there is a counterclaim.”

A.L.A. Balogun – a.F.R.
(JUDGE)

Above is the sequence stigmatized as the prompting by the learned judge which resulted in the application for the amendment by learned Counsel to the defendant.

The verb “to prompt” is not a term of art, and has not been used in this grounds of appeal in that sense.

It seems to me that it was intended to express its more common use, which is to incite. It is clear that the reaction of the learned Counsel to the learned judge disallowing a question in cross-examination, which was completely at variance with the pleadings of the parties, led to learned Counsel intimating the Court of his desire to apply to amend the pleadings. It is true the learned judge referred to the relevant paragraphs of the statement of defence at variance with the allegations in the cross-examination, and that was the reason for disallowing the question. This gesture cannot reasonably be regarded as prompting the amendment of the relevant averment in the statement of defence. It was only a reason for disallowing the question. It would have been understandable if the allegation of prompting the joinder of the witness Mr. Akin Ojo, as a defendant to the action was in issue. The record of proceedings eloquently supports such a conclusion.

The subsequent opinion that the application to amend the statement of defence should be formal before the question disallowed, could be in the form it was disallowed was proffered only after learned Counsel to the defendant had indicated his intention to amend the pleadings. In the circumstances, the criticism of the learned judge was rather unfair and unjustified. There was nothing to suggest that the application by defendant to amend the statement of defence was on the prompting of the learned judge.

This appeal has raised again again an often criticized conduct on the part of trial judges who have the responsibility of finding primary facts and directing the conduct of trials. The mastery of the facts of the cases before him and the application of the principles of practice and procedure to the facts is the accomplishment always expected of him. He is also expected to remain the unbiased umpire between the parties. He is not aloof. Loquacity is certainly not a merit in the discharge of his responsibility towards the parties. The Judge must remain severely impartial in the correction of errors made by a party in the case before him. He should not give the lest impression of learning to either of the parties. Impartial detachment should be his guide words. It is only on the observance of these rules will he not merely be presumed to be doing justice, but be seen manifestly to be doing so. Otherwise his intervention with the best of motives, even if gratuitous as ever it may be could be misunderstood where the effect is advantageous to either of the parties. His interventions in the case should be limited to what is absolutely necessary for a fair trial between the parties. This does not mean that he must keep his vision clouded in the nature of the proverbial blindfolded justice. He will do better by being blind to favour or justice. Clear to see where the truth lies: the less dust there is. the better.
For the reasons I have given above. I agree with the judgment of my learned brother Akpata. J.S.C. that this appeal succeeds.

The order of the learned judge granting the amendment prayed for by the defendant is hereby affirmed. The appeal of the 2nd respondent to the Court of Appeal against the order of amendment which ought to have been struck out, is hereby struck out.

For the avoidance of doubt the case is remitted to the High Court of Lagos State for hearing and determination before another judge.

Costs awarded in the Court below are hereby set aside. Each party to bear his costs in that Court.

Costs in this Court is assessed at N1,000 in favour of the defendants/appellants.

S. M. A. BELGORE, J.S.C.: I read in advance the judgment of my learned brother Akpata. J.S.C. and I agree with him. I adopt his reasons as mine in allowing this appeal. I make the same orders as contained in the said judgment.

A. B. WALI, J.S.C.: I have had the advantage of reading in advance the lead judgment of my learned brother Akpata. J.S.C., which has just been delivered. I am in complete agreement with the judgment and for the same reasons stated therein, which I hereby adopt as mine, I also allow the appeal.

I abide by all the consequential orders made by my learned brother. Akpata, J.s.c. in the lead judgment.

U. OMO, J.S.C.: I have been privileged to read in draft the judgment of my learned brother Akpala. J.S.C, in this appeal. He has so ably dealt with all the issues raised for determination, and arrived thereafter at the correct conclusion, that I have nothing to add thereto, except by way of a few succinct comments.
Although the appeal against the decision of the Court of Appeal setting aside the order of the High Court joining the second respondent (Mr. Akin Ojo) as a party to the proceedings, was abandoned by the appellant when she filed her brief, a very brief comment therein appears necessary.

The proper administration of justice in our courts demands, not only the independence of the judge in the due process of adjudicating over a case, but also the protection of counsel in his role as a solicitor advising and/or acting on behalf of his client. A situation in which counsel can be ordered to be joined as a Party to an action, on the mere allegation of one of the parties that he acted fraudulently in his conduct in advising him/her, not only removes any such protection, but also exposes him to blackmail by an aggrieved client. Whilst it is open to a trial court to come to the conclusion, on clearly proven facts, that fraud was perpetuated by counsel, clients will be well-advised to refer any such serious allegations to the disciplinary bodies provided by the Bar Council for dealing with such matters.

Secondly, I also wish to state that the strictures on the High Court Judge made by the Court of Appeal were uncalled for, based as they were on an erroneous conclusion, not supported by the evidence on record, that he prompted the amendment made to her pleadings by the plaintiffs/respondent in that court (the appellant here). It is not necessary for me to set out again the relevant evidence which is in the judgment of my learned brother Akpata, J.S.C. Suffice it to say that he did no such thing. It is rather with regard to the issue of joinder that he appeared not only too loquacious, but in his undue anxiety to ensure that the second respondent was JOINED as a party, he exposed himself to a possible accusation that he descended into the arena.

For the reasons so ably set out in the judgment of my learned brother Akpata. J.S.C., with which I am in full agreement, and adopt as mine, I also allow this appeal. I also affirm the order of the learned trial judge granting the amendment prayed for by the defendant/appellant. The appeal of the second respondent to the Court of Appeal against the order of amendment made by the High Court is also struck out. The order of the Court of Appeal remitting this case to the High Court for hearing and determination by another Judge is also hereby affirmed. I also set aside the costs awarded in the court below; each party being ordered to bear its own costs in that Court. The appellant entitled to costs in this appeal which I assess at N1.000.00 only.

Appeal allowed.

3PLR – JULIANA IBIYEMI AKINBINU V. YISA EYIFUNMI OSENI & ANOR

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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