PARTY CANNOT BE GRANTED WHAT HE DID NOT CLAIM

PARTY IS BOUND BY WHAT HIS COUNSEL DOES – APPARENT AUTHORITY

In the instant case there is no averment that the authority of plaintiff’s Counsel to conduct the case on his behalf was withdrawn at any stage or limited by any general or specific instruction. Counsel to plaintiff therefore had throughout the conduct of the case general and apparent authority to conduct the case of the plaintiff in his discretion within his professional skill and in the best interest of the plaintiff. The consent of Counsel in the negotiation for settlement of the dispute out of court was with the consent of plaintiff. There was no averment that Counsel and the defendants were not ad idem, both in the terms of agreement to settle out of court and in entering the consent judgment in court. Plaintiff was therefore bound by whatever results from such negotiations.

– Karibi-Whyte, JSC. Afegbai v. A.G Edo State (2001)

WHO IS AN INTERESTED PARTY IN A LITIGATION

✓ Nigerian Social Insurance Trust v. Klifco Nigeria Ltd (2010)LPELR 22 23 Paras CE as follows: ‘As regards the phrase “a person interested “I agree with the respondent that the phrase has been examined in the case of Evan v. Noble (1949) 1 KB 222 at 225 where a person not interested in the outcome of action has been described as, a person who has no temptation to depart from the truth one side or the other, a person not swayed by personal interest but completely detached, judicial, impartial, independent’. In other words, it contemplates that the person must be detached, independent, and non-partisan and really not interested which way in the context the case goes. Normally, a person who is performing an act in official capacity cannot be a person interested under Section 91(3). I think the phrase a person interested’ ever moreso has been quite definitively put in the case of Holton v. Holton (1946) 2 AER 534 at 535 to mean a person who has pecuniary or other material interest in the result of the proceeding a person whose interest is affected by the result of the proceedings, and, therefore would have no temptation to pervert the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means an interest in the legal sense, which imports something to be gained or lost.’

✓ In C.P.C. v. Ombugadu (2013) ALL FWLR (Pt.706) 406 at 472 473 Para H B when considering and determining who is a person interested under Section 91(3) of the Evidence Act 2011 held thus: “By the provision of Section 91(3), Evidence Act, a person interested is a person who has a pecuniary or other material interest and is affected by the result of the proceedings and therefore would have a temptation to pervert the truth to serve his personal or private ends. It does not mean an interest purely due to sympathy. It means an interest in the legal sense which imports something be gained or lost”.

✓ In fact, in its most recent decision in OYETOLA & ANOR v INEC & ORS (2023) LPELR-60392(SC), the Supreme Court, per Agim, JSC restated this position in the following words: “The other evidence adduced by the Appellant to prove their case is the expert analysis report prepared by PW1, who by his own admission is a member of the 2nd Appellant and had been a Special Assistant to the 1st Appellant and was engaged by the Appellants to establish the invalidity of the disputed results in Form EC8A for the 744 polling units. He testified further that “I made the report as directed by the Petitioners” and that “I am part of those who wrote the Petition”. By his own testimony he established that he was no an independent expert as he had an interest in the subject of his analysis and carried out the analysis from the conclusion that the results were invalid, to justify to support the contemplated election petition. It was an analysis from an answer and not from a question. Such a report is not the product of an independent, impartial, detached and professional analysis. He is clearly a person with the disposition or temptation to depart from the truth… The listing of the expert analysis report in the Petition among the documents to be relied on to prove the petition show it was made in anticipation or contemplation to be filed. The report having been made by PW1 as a person interested in the subject matter of the report when the petition was anticipated to establish that the election result was invalid is not admissible evidence.

PARTIES COMPLAINED AGAINST MUST BE MADE PARTIES

It is trite that parties against whom complaints are made in an action must be made parties to such action. – Mohammed JSC. Awoniyi v. AMORC (2000)