It is trite law that the donee of a Power of Attorney or an agent in the presentation of a Court suit or action pursuant to his powers must sue in the name of the donor or his principal and not otherwise.[1] Likewise, a donor has to be sued as a defendant, and not the donee. The issue now is, what happens where the donor is sued but has refused or neglected to defend the case. What should the donee do in the instance.
Order 13 Rule 4 Rules of the FCT Civil Procedure Rules 2018 and S 36 (a) of the Constitution of the Federal Republic of Nigeria (as amended) enjoin the court to join a party whose interest will be effected by the outcome or decision in a case. Such a person should be bound by the result of the action, and the question to be determined in the action must be such that cannot be effectually and completely settled unless the person sought to by joined is made a party to the action. Also the essence of joining such a person is to avoid a multiplicity of actions and to save litigation time in the judicial process, and to avoid abuse of court process.[2]
Further,
Order 13 Rule 4 of the Rules of this court provides:
“Any person may be joined as a defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against any or more of the defendant as may be found to be liable, according to their respective liabilities, without any amendment”.
Order 13 Rule 18 sub Rule (3) provides;
“The court may order that the names of any party who ought to have been joined or whose presence before the court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings be added”
Rule 19 (1) & (2) provides
“Any application to add or strike out or substitute or vary the name of a claimant or Defendant may be made by a court by motion.
(2) Where the application is to add a claimant or a defendant, the application shall be accompanied by the statement of claim or defence as the case may be …….”
And Rule 20 provides
“Where a defendant is added or substituted the originating process shall be amended accordingly and the claimant shall unless otherwise ordered by the court file an amended originating process and cause the new defendant to be served in the same manner as the original defendant”.
Resolution: A donee in this instance must seek to be joined in the subsisting matter.
Procedure 1: The done must file a motion on notice providing sufficient credible materials which the court can rely on to exercises its discretion in his favour.[3] These credible materials should include (1) certified true copies of copies of Right of Occupancy, Power of Attorney, Deed of Assignment, Authority to Register power of Attorney Authority to collect original. All these are aimed at convincing the court that the real interest of this suit has passed to the Applicant seeking to be joined, and of course dislodging the argument of the defendant who may be arguing that joining the donee will amount to unnecessary superfluity. (2) The affidavit accompanying the application must also show that the Donor has refused/neglected to defend the matter. Evidence of relocation of the donor to another country without briefing a lawyer, or service on the donor without reaction should suffice. This will help to convince the court that the donee should be joined.
Procedure 2: The court will consider the application to ensure if the applicant is likely to be affected by the result of the action, and join him accordingly. A necessary party should not be allowed to have his fate in his own hands and not be shut out to watch through the window especially as judgment made with an order against a person who is not a party to a suit cannot stand.[4] Also, that to refuse to join the applicant will be tantamount to denying him fair hearing.
Procedure 3: Where the court is satisfied that the donee has right to be protected and should be joined, the question is, in what capacity should the Applicant be joined. Since the donor who is the principal has already been sued, how then will the agent who is the done (who has equally convinced the court that he should be joined), be joined.
A court is a court of substantive justice, and has the inherent power to order that names of parties whose presence is necessary for the effectual and complete adjudication of the case be added. Consequently, the court can grant leave for the joinder of the donee not as a separate Defendant but as the lawful attorney of the donor already sued. This means that whenever a donee seeks to be joined as a defendant, having credible material facts that will convince the court, he must file his application for: Joinder of (Donee) defending through his lawful Attorney Donor”, and not “as a defendant.”
Finally, once the court orders that the donee be joined as a lawful attorney, such a person so added as defendant, “shall be served with the originating processes or notices in the manner prescribed in the Rules or in such manner as may be prescribed by the court and the proceeding against such person shall be deemed to have begun on the service of such originating process or notice”.[5]
Mrs. Chioma Angela Okeke
(LLM, MBA, IcSA, IcMC)
[1] Vulcan Gases Ltd V. Gesellschaft Fur Ind. Gasverwertung A.G (2001) LPELR-3465 Per Iguh ,J.S.C P 24, paras A-B; Timothy Ofodum v. Onyeacho 1966/67 10 ENLR 132; Jones v. Gurney (1913) WN 72; John Agbim v. Mallam Gamba Jemeyita (1972) 2 ECSLR 365.
[2] Akubeze V Obi & Ors (2016) LPELR – 41018 (CA) Pp 18-20; Paragraphs D- B, Per Yakuhi JCA; Ogoto V Fubara (2003) 11 NWLR (Pt 831) 231 at 161 paragraph B-C, per Tobi JSC;
[3] I.C.A N V Unegbu (2012) 2 NWLR Part 1284) page 231 paragraph per Okoro JCA.
[4] I O AZUBUIKE V PEOPLES DEMOCRATIC PARTY & ORS (2014) LPELR – 22258 (SC).
[5] High Court of the FCT Civil Procedure Rules, Order 13 Rule 18 (5).