EZEKIEL IBIGBAMI & ANOR. V. THE MILITARY GOVERNOR EKITI STATE & ORS.
(2003)LCN/1446(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of July, 2003
CA/IL/43/2001
RATIO
COURT AND PROCEDURE: INDECIDING WHETHER TO JOIN A PARTY OR NOT
“That in deciding whether to join a party or not, the court considers the following factors:
(a) is the cause or matter likely to be defeated by the non-joinder.
(b) Is it possible for the court to adjudicate on the cause of action set up by the plaintiff unless a third party is added as a defendant.
(c) Is the third party a person who ought to have been joined in the first instance.
(d) Is the third party a person whose presence before the court as defendant will be necessary in order to enable the court to effectively and completely to adjudicate on and settle all the questions involved in the cause or matter – relying on Green v. Green (1987) 3 NWLR (pt.61) 480 at 498; Igbokwe v. Igbokwe (1993) 2 NWLR (pt.273) 29 41; In re Omidiyi (2000) FWLR (pt.35) 735 at 747.” PER WALTER SAMUEL NKANU ONNOGHEN, J.C.A.
COURT AND PROCEDURE: A REPRESENTATIVE ACTION
“It is trite law that in a representative action every member of the class represented by the named plaintiff(s) is equally a party to the action though unnamed. He is an unnamed party because each and everyone of the class represented will be bound by the eventual decision in the action. This principle of law equally applies to an appeal arising from an action in a representative capacity see In re Ugudu (1988) 5 NWLR (pt.93) 189. Otapo v. Sunmonu (1987) 2 NWLR (pt.58) 587. To that extent an unnamed party in a representative action has the right to appeal against the decision of the lower court in a representative action irrespective of whether the named parties representing him are not appealing against the decision, since their right of appeal is independent of that of the representative or named defendants – see section 243 (a) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as the 1999 Constitution). See also Ubagu v. Okachi (1964) 1 All NLR 36; Atanda v. Afolabi, In re Olawore (1988) 4 NWLR (pt.89)394 etc.” PER WALTER SAMUEL NKANU ONNOGHEN, J.C.A.
JUSTICES
SYLVANUS ADIEWERE NSOFOR Justice of The Court of Appeal of Nigeria
PATRICK IBE AMAIZU Justice of The Court of Appeal of Nigeria
WALTER SAMUEL NKANU ONNOGHEN Justice of The Court of Appeal of Nigeria
Between
1.EZEKIEL IBIGBAMI
2. MOSES OGUNDUMILA
(For themselves and other members of Ogbimoyun Ruling House to the Owa of Odo Aiyedun Ekiti Chieftaincy) Appellant(s)
AND
1.THE MILITARY GOVERNOR, EKITI STATE
2. THE ATTORNEY-GENERAL AND COMISSIONER FOR JUSTICE
3. THE COMMISSIONER FOR SPECIAL MATTERS
4. THE SECRETARY, IKOLE LOCAL GOVERNMENT
5. TIMOTHY OGUNLEYE (THE ELESA OF ODO AYEDUN)
6. ABRAHAM ADENIYI
7. PRINCE ADEYEMI AJIBADE
(Joined by order of court for on behalf of the Serun Family of Odo Aiyedun) Respondent(s)
WALTER SAMUEL NKANU ONNOGHEN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice of Ekiti State in suit No. HAD/60/96 sitting at Ado-Ekiti delivered by Hon. Justice D.F. BABALOLA on the 15th day of December 1999 whereby the 7th respondent was joined in the substantive action as the 3rd plaintiff, upon application to that effect.
By a Statement of Claim to be found at pages 5 to 13 of the record of appeal, the original plaintiffs – that is 5th and 6th respondents claimed the following reliefs, as stated in paragraph 47 thereof:
“47. WHEREOF THE PLAINTIFFS’ CLAIM AS FOLLOWS:
(a) A Declaration that the recommendation of the Ondo State Chieftaincy Review Commission presided over by Honourable Justice Adeyinka Morgan in respect of the Owa of Odo Aiyedun Chieftaincy is contrary to the Custom and tradition governing the selection of the Owa of Odo-Aiyedun Ekiti.
(b) A declaration that the Ondo State Government white Paper accepting the recommendation of the Ondo State Chieftaincy Review Commission presided over by Honourable Justice Adeyinka Morgan in respect of the Owa of Odo Aiyedun Chieftaincy is contrary to the Custom and tradition governing the selection of the Owa of Odo Aiyedun – Ekiti.
(c) A declaration that the Ondo State Government white Paper accepting the recommendation of the Ondo State Chieftaincy Review Commission presided over by Honourable Justice Adeyinka Morgan in respect of the Owa of Odo-Aiyedun Ekiti Chieftaincy is repugnant to Natural Justice Equity and good conscience.
(d) A declaration that the 1962 Chieftaincy declaration registered in respect of the Owa of Odo-Aiyedun – Ekiti Chieftaincy is in consonance with the custom and tradition governing the selection of the Owa of Odo-Aiyedun.
(e) A mandatory injunction compelling the defendants to call upon the Serun Ruling house to present a candidate to fill the vacancy in the Owa of Odo-Aiyedun Chieftaincy.
(f) An order restraining the defendants, their servants, agents, privies or anybody whatsoever from considering, approving any body for appointment or appointing anybody under the Declaration registered on the 2nd day of December 1994 to the Owa of Odo Aiyedun Ekiti Chieftaincy.
(g). A order restraining the defendants, their servants, agents, privies or anybody whatsoever from taking further steps to give effect to the Chieftaincy Declaration dated 2nd of December, 1994 relating to the Owa of Odo-Aiyedun Chieftaincy.
(h) An order declaring invalid, null and void the Chieftaincy declaration dated 2nd of December 1994 relating to the Owa of Odo-Aiyedun Ekiti Chieftaincy for contradicting the Native Law and Custom of Odo Aiyedun Ekiti in relation to the Owa of Odo Aiyedun Ekiti Chieftaincy and or for being repugnant to natural justice, equity and good conscience.
(i) An order declaring invalid, null and void the Chieftaincy declaration dated 2nd of December, 1994 relating to the Owa of Odo Aiyedun Ekiti Chieftaincy for contravening the Chiefs Edict of Ondo State.
(k) An order restraining the defendants, their servants, agents, privies or anybody whatsoever from registering another declaration relating to the Owa of Odo Aiyedun Ekiti Chieftaincy.
The action was instituted in a representative capacity; for and on behalf of the Serun Ruling Family of Odo Aiyedun – Ekiti, by the Original 1st and 2nd plaintiffs now 5th and 6th respondents in this appeal.
The facts of the case, as can be gathered from the record include the following: Prior to the death of the previous Owa of Odo Aiyedun – Ekiti on the 12th day of August, 1994, only one ruling house existed in Odo Aiyedun in relation to the Chieftaincy title of Owa of Odo Aiyedun and the ruling house was Known as OKE-OWA; it was registered. Sometime in 1978 the government of the then Ondo State set up the Justice Morgan Commission to review the Obaship institution of the State. In 1981, the said Commission recommended two ruling houses for the title of Owa of Odo Aiyedun Chieftaincy as allegedly requested by the leaders of the town. These ruling houses are SERUNGILE and OGBIMOYUN.
The recommendation was accepted by the Ondo State Government which later requested Ikole Local Government of the State to make a declaration along the Justice Morgan recommendation on 2nd December, 1994. The Chieftaincy declaration so made was later approved and registered by the Ondo state Government. It is against the registered declaration of 1994 that the original plaintiffs brought the action praying for a rejection of the Morgan recommendation, the consequent declaration and praying instead that the previous 1962 declaration concerning the Owa of Odo-Aiyedun Chieftaincy be used in the selection of a new Owa of Odo Aiyedun.
In their Statement of Defence to be found at pages 16 to 20 of the records the 5th and 6th defendants, now appellants, contested the competence of the action contending that it was not instituted in the name of a ruling house either past or present and that the plaintiffs therein were never contestants to the title of Owa of Odo Aiyedun and thereby lacked locus standi to institute the action. The appellants subsequently filed a motion contesting the locus standi of the 5th and 6th respondents but the said respondents filed a motion praying the court to add to the original plaintiffs a third plaintiff which application was granted thereby joining the 7th respondent as the 3rd plaintiff in the action. The appellants are dissatisfied with the ruling of the lower court joining the 7th respondent, hence the appeal. On the 6th day of July 2000 this court, in appeal No. CA/IL/M4/2000 granted the appellants leave to appeal against the ruling of the lower court complained of.
By an amended Notice of Appeal filed on the 28th day of January 2002 the appellants filed five grounds of appeal against the said ruling of 15th December 1999 out of which, by the appellants’ brief of argument filed by learned SAN for the appellants A.O. AKANLE Esq. SAN on the 28th day of January 2002 and adopted in argument by counsel on 6th May 2003, the said learned SAN has formulated three issues for the determination of the appeal. The issues are as follows:
“ISSUES IN THE APPEAL
(a) Whether or not the application for joinder was belated, unnecessary, was brought mala fide and hence capable of unduly prolonging and delaying the hearing in the case (Grounds 1, 2 and 4).
(b) Whether or not the original claim is competent and so capable of being amended by way of joinder and whether even the application of the Part (sic) seeking to be joined competent.
(c) Whether any useful purpose can be served by the joinder.”
On the other hand, learned counsel for the 5th to 7th respondents, M.A. OWOYEMI Esq., in a brief of argument deemed filed on 8/4/02 identified two issues for determination to wit:
“i. Whether or not the trial court properly exercised its discretion in joining the 7th respondent as co-plaintiffs (sic) in view of the depositions contained in the affidavit in support of the application dated 2nd day of July but filed on 5th day of July, 1999.
ii. Whether or not issues 2 and 3 raised by the appellants can be considered by this court in view of the fact that the issue on appeal is the joinder of the 7th respondent as co-plaintiffs (sic) and the State of the case before the trial court.”
I will comment on the issues as formulated by both counsel later in this judgment.
Now the 1st to 4th respondents in this appeal filed no respondents’ brief neither did they present any application to this court for leave to file one out of time? Consequently learned SAN for the appellants on the 26th day of March, 2003 filed a motion before this court praying for an order that the appeal herein be heard on the briefs of argument filed by the appellants and 5th to 7th respondents following the failure and/or refusal of the 1st to 4th respondents to file their brief of argument.
The application was served on the parties and on the 15th day of April, 2003 this court granted the reliefs sought and the appeal adjourned to 6th May, 2003 for hearing. On the said 6th May 2003, the 1st to 4th respondents though served with hearing notice for the hearing failed to attend court and the appeal was duly heard and adjourned to today for judgment.
Turning again to the issues as formulated by both counsel, I hold the view that the only live issue in this appeal is issue No.1 as formulated by counsel for both parties since what is before us is the question whether or not the trial court exercised its discretion to grant or refuse the application to join the 7th respondent judicially and judiciously in view of the facts and circumstances of the application in question.
That being the case, it is my considered view that the issue as to whether the substantive action is competent does not arise at that stage of the proceedings and it will be wrong to consider it when the motion of the appellants contesting the locus standi of the original plaintiffs still pends and has not been ruled upon.
Learned counsel for the appellants is reminded that this is the Court of appeal which has jurisdiction to determine appeals arising from decisions of the appropriate lower courts. It is therefore trite law that grounds of appeal must arise from the ratio decidendi of the decision appealed against and that issues formulated for the determination of appeals must arise from the grounds of appeal which emanated from the decisions appealed against. It is clear from the ruling of the lower Court that the learned trial judge considered only the issue of joinder of the 7th respondent and never strayed from that to touch on the competence of the substantive action. That being the case, it is my considered view that this court has no jurisdiction to consider the issues that do not arise from the judgment on appeal.
In arguing issue No. 1 learned SAN for the appellants stated that the 5th and 6th respondents instituted the action in October 1996 with the knowledge, co-operation and funding of the 7th respondent. That the appellants filed their Statement of Defence on 24th December 1996 in which they raised the issue of locus standi, of the said respondents. That the appellants also amplified their contention in a motion filed on 9th June, 1999. That on 3rd July, 1999 the 5th and 6th respondents filed a counter affidavit to that motion. That on the 5th day of July, 1999 the respondents filed the motion giving rise to this appeal.
Learned SAN then submitted that the application for joinder is belated, relying on Ademola v. Sodipo (1992) 7 NWLR (pt.253) 251 at 261, Owena Bank v. Nigerian Stock Exchange (997) 8 NWLR (pt.515) 1 at 19.
That the application was also brought mala fide as it was consequent on the appellant’s application for an order striking out the suit and was designed to rob the appellants of their line of defence relying on Oduola v. Ogunjobi (1986) 2 NWLR (pt.23) 508.
That the joinder would lead to amendments of the writ of summons, Statement of Claim, Statement of Defence and reply to the Statement of Defence all of which will cause long delay in the hearing of the matter. That the court should not allow it relying on the case of Cross River Newspaper Corporation v. Oni (1995) 1 NWLR (pt.371) 270 at 291.
That the case can be effectively settled without joining the 7th respondent and as such there is no necessity for the joinder relying on Anya v. Iyayi (1988) 3 NWLR (pt.82) 359 at 382; Okesade v. Ogunkayode (1994) 1 MWLR (pt.318) 26 at 39; Mobil Oil v. Nabson (1995) 7 NWLR (pt.407) 254 at 263; Adelaye v. Adepegba, (2001) 5 NWLR (pt.706) 330 at 349.
That the joinder is embarrassing and will surely delay the proceedings and so should be refused relying on Cross River Newspapers Corp, Supra at 291. Learned SAN then urged the court to resolve the issue in favour of the appellants.
On the other hand learned counsel for the 5th to 7th respondents stated that the action was rather first instituted by the 5th and 6th respondents at Ikole High Court on the 18th of November 1994 against the 1st to 4th respondents but the matter was struck out on 29th October, 1996 for being defective in form. That on the 4th of November 1996, the said 5th and 6th respondents commenced this action before the Ado-Ekiti High Court and the appellants were joined therein as co-defendants on the 7th day of November. 1996. That on the 5th day of February, 1999 one Samuel Dada Ojo of the appellant’s family was installed by the 1st to 4th respondents as the Owa of Odo-Aiyedun Ekiti during the pendency of the suit. That the 7th respondent filed an application to be joined in the suit on the 7th day of July, 1999 which application was granted.
Learned counsel then submitted that the 7th respondent was joined under the provisions of Orders 11 and 47 rule 1 of Ondo State High Court Rules, 1987 as applicable to Ekiti State and that the said 7th respondent is a necessary party to be joined in the proceedings, the appellants having admitted that the action was brought in October 1996 with the knowledge, co-operation and funding of the 7th respondent.
That in deciding whether to join a party or not, the court considers the following factors:
(a) is the cause or matter likely to be defeated by the non-joinder.
(b) Is it possible for the court to adjudicate on the cause of action set up by the plaintiff unless a third party is added as a defendant.
(c) Is the third party a person who ought to have been joined in the first instance.
(d) Is the third party a person whose presence before the court as defendant will be necessary in order to enable the court to effectively and completely to adjudicate on and settle all the questions involved in the cause or matter – relying on Green v. Green (1987) 3 NWLR (pt.61) 480 at 498; Igbokwe v. Igbokwe (1993) 2 NWLR (pt.273) 29 41; In re Omidiyi (2000) FWLR (pt.35) 735 at 747.
That the 7th respondent did show that he is entitled to a share in the subject matter of the suit, relying on Jia Enterprises Ltd VB. British Commonwealth Insurance Co. Ltd. (1962) 1 All NLR 363. That the name of the 7th respondent was mentioned in paragraph 7 of the reply to the statement of Defence of the appellants. That the 7th Respondent deposed to the fact that he is a Prince of Serun Ruling House to the Owa of Odo-Aiyedun – Ekiti and that he was selected by his family as the person to succeed to the Owa of Odo-Aiyedun Ekiti chieftaincy following the death of Oba M.A. Oluyi who died in August 1994. That effort were made by the 7th respondent’s family to see to it that the 1st to 4th respondents complied with an earlier Declaration (1968) by calling on the said 7th respondent’s family to produce the next candidate to the office or stool of Owa. That the 7th respondent has a share or interest in the suit originally instituted by the 5th and 6th respondents thereby necessitating his being joined as co-plaintiff in the suit.
That where the original plaintiffs claim is defective, the court will joined a third party as co-plaintiff if that would save the case thereby enabling the court to do substantial justice, relying on the Supreme Court Practice, 1979 Vol. 1 pages 180 – 181 paragraphs 15/6/3 to 15/6/5.
That an unnamed party who is interested in a matter may apply to be joined as an interested party to enable the court to determine all issues in the matter once and for all, relying on In re- Eke (1993) 4 NWLR (pt.286) 176 to 185 and 187.
That the 5th and 6th respondents instituted the action in a representative capacity for an on behalf of Serun family of Oke Owa Ruling House. That there are two rights in the Chieftaincy namely:
(a) the right of a ruling house as a whole, and,
(b) the right of individual to succeed to the chieftaincy.
That the 5th and 6th respondents instituted the action to protect the rights of the family while the 7th respondent applied to be joined as co-plaintiff in order to protest his interest to the Owa of Odo Aiyedun Chieftaincy having been selected by his family. That it would be more apposite and convenient to determine the rights of the family and that of the 7th respondent in a single action so that there will be an end to litigation, relying on Eleso V. Government of Ogun State (1990) 2 NWLR (pt.133) 420 at 444; Odeneye v. Efunga (1990) 7 NWLR (pt.164) 618 at 641. That the lower court rightly exercised its discretion in granting the application and urged the court not to interfere with same. He then urged the court to resolve the issue in favour of the 5th to 7th respondents.
In his reply brief filed on 8/4/02 learned SAN for the appellants submitted that since the 5th and 6th respondents took the action on behalf of Serun Ruling House, their representation includes all members of that family thereby making all the members parties to the case – relying on Ede v. Nwidenyi (1988) 5 NWLR (pt.93) 189 at 198; In re Eke (1993) 4 NWLR (pt.286) 176 at 184 – 185. In re Ofuedon (1995) 4 NWLR (pt.714) 200 at 211.
That the application of the 7th respondent to join in the case was therefore unnecessary as he is a member of Serun family or Ruling House on behalf of which the 5th and 6th respondents took the action. Going through the record of appeal, the following facts are not in dispute.
(1) That the 5th and 6th respondents instituted the action for and on behalf of SERUN RULING HOUSE and by Exhibit E attached to the affidavit in support of the application to join the 7th respondent as a co-plaintiff, which is the enrolled order of the lower court, the said trial court ordered inter alia as follows:
“Order as prayed. I have satisfied myself on paragraph 2 of the affidavit in support that the other members of the Serun Ruling house of Odo – Aiyedun Ekiti sought to be represented have given their consent. Leave shall be and is hereby granted to Timothy Ogunleye the Elesa of Odo Aiyedun Ekiti and Abraham Adeniyi to prosecute this action on behalf of themselves and the Serun family of Odo Aiyedun Ekiti.”
2. That the 7th respondent is a member of Serun Ruling House/Family so represented by the 5th and 6th respondents.
3. That the cause of action remains as reproduced earlier in this judgment – a claim for and on behalf of Serun Ruling House/Family against the recommendations of Morgan’s commission and other related matters and nothing personal.
4. That there is no prayer on the motion for joinder for an order for leave to amend the processes of the court to include any other relief(s) or in any other form – see the motion paper at pages 41 to 42 of the record.
In deciding the application to join the 7th respondent, the learned trial judge, in the ruling now on appeal, held inter alia, as follows, at page 88 of the record;
“In the light of the facts of this case before me, after considering the affidavit evidence of the applicant and all the exhibits herein attached (exhibits A – M) and the respondents affidavit, I have finally come to the following conclusions;
1. That the applicant is a necessary party to this proceedings whose presence is essential for the complete determination of claim before the court.
2. He is a person or a party who ought to have been joined as a plaintiff in the first instance.
3. His interest will be directly and obliquely effected by the decision of this case.
The application is therefore granted as prayed. The writ of summons, the statement of claim and Defence should be amended to reflect this…”
I must confess that I do not see, in the ruling where the learned trial judge “considered the affidavit evidence of the applicant … and the respondent’s affidavit…” as stated in the ruling.
The learned trial judge rather than deal with the merits of the application, went into irrelevant things such as discussing the factors to be considered in considering an application for joinder of a person as a defendant; “and joinder of intervener” in an application for joinder of a co-plaintiff. He even considered “who may apply for joinder”.
Order 11 Rule 1 of the Ondo State High Court (Civil Procedure) Rules 1987 (applicable to Ekiti State and hereinafter referred to as the High Court Rules), being one of the Rules of Court on which the application to join the 7th respondent was grounded provides the requirements for joinder of plaintiffs in an action.
These are that:
(a) the right to relief claimed in the suit must be vested in the plaintiffs whether jointly, severally, or in the alternative;
(b) the right to relief must be in respect of or arise out of the same transaction or series of transactions, and
(c) if all the plaintiffs had brought separate actions, a common question of law or fact would arise in all such actions.
It is only when these conditions are fulfilled or established by the plaintiffs that their joinder can be possible in law – see Newspaper Corporation v. Oni (1995) 1 SCNJ 218 at 232.
Now the prayer on the motion papers giving rise to the ruling on appeal is for “an order joining the applicant in the substantive suit as co-plaintiff for himself and on behalf of other members of Serun Royal Family of Oko-Owa Ruling House to the Owa of Odo-Aiyedun – Ekiti.”
The question that follows is what is meant by joinder?
BLACK’S LAW DICTIONARY, 7th Edition page 841 defines the term as follows:
“JOINDER,” The uniting of parties or claims in a single law suit.”
This clearly means that an application for joinder of a person as a co-plaintiff, as in this case, is an application for the joinder of a person who was not originally a party to the action. In this con, the term means adding the said person as a new plaintiff to those already before the court, such as 5th and 6th respondents in this case.
However, for such a person to be joined or added to the other plaintiffs, he must fulfill the objectives of the rules of court relating to joinder of parties – particularly plaintiffs, in this case. In that case, he has to satisfy the Court that his presence is necessary for the action to be effectively and completely settled – see Peemington V. Gayley (1912) 1 Ch. 236. That apart, the new plaintiff and the existing ones should be prepared to abide by the consequences of their being co-plaintiffs etc, etc.
The question is whether it can be said that from the facts and circumstances of this case, the 7th respondent satisfied the requirements of the law to be joined as a co-plaintiff in the substantive action.
It is trite law that the question of whether or not to grant an application for joinder of a party calls for the exercise of the discretionary powers of the trial court which discretion must not only be exercised judicially but judiciously.
Thus where a trial judge is not shown to have committed any error in principle, his exercise of a discretionary power will not be interfered with except the appellate court is of the opinion that his conclusion involves injustice. That not withstanding, an appellate court is not allowed to substitute its own discretion for that of the trial court. An appellate court will thus, not interfere simply because faced with similar situation, it would have exercised its discretion differently – see Ntukidem v. Oko (1986) 5 NWLR (pt.45) 909; Omadide v. Adajeron (1976) 12 S.C. 87 at 96; Odogwu v. Odogwu (1992) NWLR (pt.225) 539; Ceekay Traders Ltd. v. General Motors Ltd. (1992) 2 NWLR (pt.222) 132; Adejumo v. Ayantegbe (1989) 3 NWLR (pt. 110) 417.
Going through the rules of the lower court particularly Order 11 thereof and the principles of law applicable to joinder of parties, it is clear that the only reason which makes it imperative to make a person a party to an action is when he would be bound by the result of the action and the questions to be settled therein. In other words, there must be a question(s) in the action which cannot be effectually and completely determined unless he is made a party. In the present case it must be constantly put in focus the fact that the action is a representative one and the original plaintiffs already represented the 7th respondent, sought to be joined. The issue is whether in view of the facts and circumstances of this case the learned trial judge is right in concluding as he did that:
“(1) That the applicant is a necessary party to this proceeding whose presence is essential for the complete determination of claim before the court.
(2) He is a person or a party who ought to have been joined as a plaintiff in the first instance.
(3) His interest will be directly and obliquely affected by the decision of this case.”
Emphasis supplied by me.
It is trite law that in a representative action every member of the class represented by the named plaintiff(s) is equally a party to the action though unnamed. He is an unnamed party because each and everyone of the class represented will be bound by the eventual decision in the action. This principle of law equally applies to an appeal arising from an action in a representative capacity see In re Ugudu (1988) 5 NWLR (pt.93) 189. Otapo v. Sunmonu (1987) 2 NWLR (pt.58) 587. To that extent an unnamed party in a representative action has the right to appeal against the decision of the lower court in a representative action irrespective of whether the named parties representing him are not appealing against the decision, since their right of appeal is independent of that of the representative or named defendants – see section 243 (a) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as the 1999 Constitution). See also Ubagu v. Okachi (1964) 1 All NLR 36; Atanda v. Afolabi, In re Olawore (1988) 4 NWLR (pt.89)394 etc.
It therefore follows that in a representative action, both the named and unnamed plaintiffs and or defendants, as applicable, and those they represent are parties to the action although the named representative plaintiffs and/or defendants are dominus litis until the suit is determined.
In other words, when an action is initiated in representative capacity, as in the present case, such actions is not only by or against the named plaintiffs or defendants but are also by and against those the named parties represent who are not stated nomine. To that extent, those represented, so long as the named parties are in court, are also deemed present at the trial of the action, through their representatives – See in re. Otuedon (1995) 4 NWLR (pt.392) 655 at 667.
It is my considered view that judging by the state of the law applicable to the relevant facts of this case, the lower court cannot be right in holding as above quoted because the 7th respondent who was held to be a necessary party and thereby joined in the action also in a representative capacity like the 5th and 6th respondents was already a party to the said proceedings by operation of law. He was an unnamed co-plaintiff. That being the case he cannot be said to be “a party who ought to have been joined as a plaintiff in the first instance” as also found by the learned trial judge neither can it be said that his interest, as shown in the reliefs claimed in the action, is different from that of the original plaintiffs and will therefore “be directly and obliquely affected by the decision of the case.”
From the pleadings the interest of the 7th respondent is the same as those of the 5th and 6th respondents and the mandate of the members of the Serun Ruling House/Family including the 7th respondent to the 5th and 6th respondents to represent them in that action still subsists and has not been counter-manded by them. That being the position of the facts and law, it is my considered opinion that the application for joinder of the 7th respondent in the present action is clearly an exercise in fulitity and consequently of no legal effect.
I therefore come to the irresistible conclusion that the issue under consideration be and is hereby resolved in favour of the appellants. That being the case, it is further held that the appeal has merit and is accordingly allowed.
The ruling of D.F. BABALOLA J of the High Court of Justice of Ekiti State, holden at Ado-Ekiti in Suit No. HAD/60/96 delivered on the 15th day of December 1999 is hereby set aside.
In it place it is hereby substituted an order dismissing the application of the 7th respondent for joinder as being grossly incompetent. There shall be cost in favour of the appellants which I fix at N10, 000.00.
Appeal allowed.
SYLVANUS ADIEWERE NSOFOR, J.C.A.: I have had a preview in draft of the leading judgment just delivered by my Lord, Onnoghen, J.C.A.
The respondents, qua plaintiffs in the Court below, had claimed, as endorsed on the writ of summons filed in November, 1996 and, repeated in paragraph 47 of the Statement of Claims, five(5) declaratory reliefs numbered as “(a), (b), (c) and (i), and four injunctive reliefs numbered as “(e)”,”(f)”, “(g)” and “(k)”.
The action was brought in a representative capacity, id est, “For AND ON BEHALF OF THE SERUN RULING FAMILY OF ODO AIYEDUN EKITI.”
Following an application by way of a “Motion ex-parte”, the court (See page 38(Mi) of the Record of Appeal) ordered, inter alias, as follows:-
“Leave shall be and is hereby granted to Timothy Ogunleye the Elesa of Odo-Aiyedun Ekiti and Abraham Adeniyi to prosecute this action on behalf of themselves and the Serun family of Odo-Aiyedun Ekiti.”
Authorisation to sue and prosecute an action is given by other members or persons interested to use, but an approval of the authority comes from the Court. See Buraimo Adegbite & Ors V. Chief Imam Quadri B. Lawal (1948) 12 WACA 398 at page 399. It becomes clear that all the other members or the Serun Ruling Family of Odo Aiyedun Ekiti, including the applicant) being interested in suing, authorised and mandated both Timothy Ogunleye, The Elesa of Odo Aiyedun Ekiti and Abraham Adeniyi parties stated nomine to sue and prosecute the action from which the present appeal arose for themselves and all the other members of the family.
Perhaps, for the sake of the mention of it, written pleadings were ordered. They were filed and exchanged. Actual hearing in the suit has not yet commenced.
This was the stage reached in the case, when Prince Adeyemi Ajibade, qua “Applicant”, brought an application by way of a “Motion on Notice” dated the 2nd or July, 1999 praying for:-
“An Order Joining the Applicant in the substantive suit as co-plaintiff for himself and on behalf of other members of Serun Royal Family of Oke Owa Ruling House to the OWA OF ODO AYEDUN EKITI Chieftaincy.
AND FOR SUCH FURTHER Order and orders as the Honourable Court may deem fit to make in the circumstances.”
The quo warranto for the application as it was expressed on the notice of motion was: “Order 11 Rule (s) 3 AND 5 AND Order 47 Rule 1 of the Ondo State High Court, 1987 as made applicable to Ekiti State, Section 16 of the High Court Law of Ondo State, 1987 Sections 6(b) AND 33(1) and (2) of the Constitution of the Federal Republic of Nigeria.”(The small letters are mine).
There was filed an affidavit in support of the motion. It was sworn by the applicant himself (Prince Adeyemi Ajibade). There was, also, filed by the respondents to the motion an affidavit in opposition.
The following paragraphs 1, 2, 17, 39, 40 and 41 of the affidavit in support of the motion are relevant. They read:-
1. That I a (sic) prince of Serun Ruling House of Odo-Ayedun Ekiti.
2. That I have the consent of members of the said Serun Royal Family Oke Owa Ruling House of Odo-Ayedun Ekiti to swear to this affidavit.
19. That Serun Royal Family House is synonymous with Oke Owa Ruling House in Odo-Ayedun-Ekiti.
39. That on November, 1966 the plaintiffs commenced this action against the 1st to 4th Defendants.
40. That on the 27th of November, 1996 the Plaintiffs were given leave of this Honourable Court to Prosecute this case for and on behalf of Serun Ruling House to the Owa Odo-Ayedun-Ekiti Chieftaincy. A copy of the Order is hereby attached and marked Exhibit A.
41. That on the 27th day of November, 1996 the 5th and 6th Defendants were joined as Defendants in this suit.”
The motion came on for the hearing on the 15th of November 1991. The Court (D.F. Babalola, J.) heard the Counsel. Thereafter, it adjourned its Ruling to 1/12/99. In a reserved and considered Ruling, the learned trial Judge allowed the motion and, granted the application.
In reaching his conclusion, he expressed himself in the following terms, at page 88 of the Record of Appeal,
“In the light of the fact of this case before me I have finally come to the following conclusions:-
1. That the applicant is a necessary party to this proceedings whose presence is essential for the complete determination of the Claim before Court.
2. He is a person or party who ought to have been joined as a plaintiff in the first instance.
3. His interest will be directly and obliquely affected by the decision of this case.
The application is therefore granted as prayed. The writ of summons, the Statement of Claim and Defence should be amended to reflect this.”
He made no Order for costs.
Aggrieved and dissatisfied with the Ruling, the respondents have now appealed therefrom.
Briefs of Arguments have been filed and exchanged in accordance with the Rules of the Court. I decline to carry the grounds of appeal filed.
The appellants in the Appellants’ brief formulated the following three issues, herein under, immediately set down.
“A. Whether or not the application for joinder was belated, unnecessary, was brought mala fide and hence capable of unduly prolonging and delaying the hearing in the case.
B. Whether or not the original claim is competent and so capable of being amended by way of joinder and whether even the application for joinder of part (sic) seeking to be joined is competent.
C. Whether any useful purpose can be served by the joinder.”
On their part, the respondents in the Respondents’ brief identified two issues for determination. (See page 4 thereof). These are:-
“i. Whether or not the trial Court properly exercised its discretion in joining the 7th Respondent as co-plaintiffs (in view of the deposition contained in the affidavit in support of the application dated 2nd day or July but filed on 5th day of July, 1999.) (The brackets are supplied by me).
“ii. Whether or not issues 2 and 3 raised by the Appellants can be considered by this Court in view of the fact that the issue or appeal is joinder of the 7th Respondent as co-plaintiffs and the state of the case before the trial court.”
I shall pause here for a while for a comment or two on the issues as formulated by the parties respectively in their respective briefs of argument for the purpose of clarity and elucidation to put the point aside.
Firstly, I do not “quite easily see my way through, having examined the grounds of appeal filed, how issues “B” and “C” arose from the grounds of appeal filed. Besides, the competence of the “motion on Notice” (the application) or, otherwise, was not raised “at the hearing of the application. The competency of the motion was not raised or/and pronounced on by the trial court. But was this appeal against any decision on the competence of the motion? I think not.
Secondly, I fail to see how the contents of the square brackets (supra) could reasonably be said to form any part of the ground or grounds of appeal filed. And the Respondents have not cross-appealed. They are no appellants.
Thirdly, the Respondents’ issue No.2 is of a nature of a preliminary objection. The Respondents have not raised any objections to Issues Nos. (2) and (3) of the Appellants. And it is clear to me that, as framed, issue No.2 by the Respondents cannot be said to arise or, flow from any of the grounds of appeal filed. Counsel ought to make his own decision and take a stand one way or the other rather than leaving it to the Court to make that decision for him. If Counsel felt that those issues were incompetent for any reason, it was for him to advise himself and take the appropriate steps.
I have scrutinised the issues as formulated by the parties respectively. The Respondents’ issue No.1 covers the field. It is more preferable than the issues by the appellants. A resolution thereof holds the master key to the appeal. I shall, therefore, consider and deal with the appeal based on that issue.
The learned Counsel for the Respondents had referred to and reproduced the relevant rules (i.e. the quo warranto) pursuant to which the “motion on Notice” was brought. Much effort and energy was spent reproducing what principles guide the Court when considering an application for a joinder of a party as a defendant to the suit (quite a waste of time and unnecessary). The Counsel acknowledged this, when in paragraph 4.12 at page 7 of the brief, he submitted, “with respect that the above factors are better considered where the application for joinder is aimed at joining a third party as co-defendant.”
It was submitted in paragraph 4.13 of the Respondents’ brief that, “what is required of the applicant to show before the trial and which the 7th Respondent showed; is that he is entitled to a share or interest in the subject of the suit.” Counsel cited Jia Enterprised Ltd V. British Commonwealth Insurance Ltd (1962) 1 All NLR 363.
Continuing, Counsel in the Respondents’ brief further submitted in paragraph 4.19 at page 8 thereof, as follows:-
“With the above, we submit with respect that the 7th Respondent has a share or interest in the suit originally instituted by the 5th and 6th plaintiffs/Respondents thereby necessitating his being joined as co-plaintiff in this suit by the trial Court.”
It was the further submission by Counsel at page 9 of the Respondents’ brief paragraph 4.25 that the 7th Respondent, qua applicant for “Joinder” was properly joined as co-plaintiff and that the Court below properly exercised its discretion judiciously in allowing the motion and granting the application for a joinder. Quite significantly the Counsel, in the Respondents’ brief in paragraph 4.44 at page 12 thereof, urged the Court thus:
“We therefore urge the Court to hold that the right of the 7th Respondent in respect of Owa of Odo Ayedun is inseparable from that of his entire “family.”
I have tried to read and appreciate the Appellants’ brief. I do not know if I full well comprehended the contentions. Perhaps imperfectly! But certainly, the one area of the Senior Counsel’s contentions, in my view, relevant to the appeal is as contended in the Reply brief. Therein, dealing with the Respondents’ Issue No.1, he submitted as follows:-
“(a) The Plaintiffs (fifth and sixth) respondents took the action on behalf of Serun Ruling House/family.
(b) their representation includes all members of that family and so all members are parties to the case.”
I shall not omit stating and, with respect to the learned Senior Counsel, that, from my study of the Appellants’ brief, most of the contentions, (if not all the contentions) were directed and devoted to matters which, in my view, would arise for determination on the merits of the case at the trial.
This is an interlocutory appeal. It is clear to me that this Court, at this stage, is precluded from delving into or expressing any opinion on the issues yet to be determined and decided upon at the trial.
Otherwise this Court would be prejudging the case and placing the trial Court in a rather difficult position. I shall, therefore, decline to venture into such a “no-go-area” at this stage.
The learned Senior Counsel had cited and relied on a long line of decided cases in support of the convention in the Reply brief (supra).
These included (i) In Re Eke (1993) 4 NWLR (Pt.286) 176, 184/155.
(ii) In Re Otuebon (1995) 4 NWLR (Pt.392) N.W.L.R. (pt.392) 655
(iii) In Re Adeosun (2001) 8 NWLR (Pt.714)200
Before I embark on my consideration of the issue in hand, I shall pause here for a while to consider one of those cases cited to us by the learned Senior Counsel for the appellant for what assistance it may offer me in reaching my conclusion.
Now, to the In Re Otuebon case (supra). The short facts of the case, relevant for my consideration here and now, are: (A) By an application dated and filed on the 20th of October, 1994 the applicants,(Osibakoro D. Otuebon and Peter O. Egueya) applied to the Supreme Court for” among others:-
“1. Substituting the applicants for named plaintiffs/appellant’s to prosecute this appeal for themselves and on behalf of the Gbolokoso people.
2. For a fresh hearing of the application dated 14th day of May, 1993.
3. Dispensing with:- x x x
(B) The application was supported by a 15 paragraph affidavit. The named appellants had for themselves and on behalf of the Gbolokposo people in Oke Local Government Area of Delta State instituted the action against the respondent for title to land.
(C) A further affidavit in support of the application had, exhibited thereto, a resolution by the Gbolokposo Community authorising the applicants to replace the named appellants on record and to prosecute the appeal on behalf of the Community.
(D) Both the 2nd and 3rd appellants had died between 1975 and 1983. The 1st appellant died on 3rd August, 1993. Before the death of the last appellant the appellants had filed an application in the Supreme Court for, among others, an order for extending the time within which to apply to the Court for leave to appeal against the decision of the Court of Appeal.
(E) All the appellants to the appeal had died before the application for extension of time was granted.
(F) But the appellant had filed a Notice of Appeal dated 14th February, 1990.
(G) The respondents shortly opposed the application based on their affidavit in opposition.
Granting, the application in part, the Supreme Court held, per Iguh, J.S.C. at pages 666/667:-
“It seems to me that the first point to be stressed is that it is indisputable that the plaintiffs instituted this action against the defendants/respondents in a representative capacity. This suit was filed by the named plaintiffs for themselves and on behalf of Gbolokposo Community who duly authorised them so to do.
The second point that must be made is that in a representative action, both the named plaintiffs and/or defendants at the case may be and those they represent are parties to the action although the named representative plaintiffs and/or defendants are dominus litis until the suit is determined. And so, for the purpose of initiating any process in a representative action, such process must be by and in the name of the named plaintiffs or defendants so long as their mandate from those they represent remains acceptable and uncontermanded. See Atanda V. Olarewaju (1988) 4 NWLR (Pt.89) 394, Ede V. Nwidenyi, In re Ugadu (1988) 5 NWLR (pt.93) and Obi Okonji V. George Njokanma, (1989) 4 NWLR (pt. 114) 161 at 169.
Put differently when an action is instituted in a representative capacity and/or against persons in a representative capacity, such action is not only by or against the named plaintiffs or defendants but also by and against those the named parties represent who are not stated nomine. Those represented, so long as the named parties are in Court, are also deemed present at the trial of the action through their representatives. See Calgary & Medicine Hat Land Co. Ltd (1908) 2 Ch. D. 652, Market and Co. Ltd V. Knight Steaming Co. Ltd (1910) 2 KB 1021 at 1039 and Barker V. Allanson (1937) 1 KB 463 at 475. They were present by representation and would be bound in law by whatever decision the Court would give for or against their representatives. I will now consider the position of deceased parties to a suit…”
Now, in Re: Otuedon (Supra), as in the suit from which the application, the Ruling on which is the subject matter of this appeal, the action was instituted in representative capacity.
But the Re: Otuodon case (supra) is distinguishable from the application from which the Ruling on appeal arose. The application in the Re Otuedon case was for the substitution of the applicants for the deceased appellants.
The application, the Ruling on which is the subject matter of this appeal, was not for a substitution of the applicant, (Prince Adeyemi Ajibade), for the named plaintiffs on record. No. The plaintiffs stated nomine are alive.
Guided by the principle decided in the In Re Otuedon case (supra), it is clear that applicant (Prince Adeyemi Ajibade) and all other members of the Serun Ruling Family are plaintiffs not stated nomine. The plaintiffs stated nomine are domini licis. The applicant with all those other members of the Serun Ruling Family whose authorisation to the plaintiffs named on record was approved by the Court, (See Exh. E) will be deemed present at the trial of the action through their representatives.
He and all the other members of the Serun Ruling Family will be bound in law by whatever decision the Court will give for or against their representatives.
Now, this question arises:-
Q: Would the applicant for joinder, really, be seeking to be joined, “as a co-plaintiff for himself and on behalf of other members of Serun Royal family”?
ANS: Most certainly not. Why? Only because and because only he was/is already, a co-plaintiff not stated: nomine.
The word, “Joinder” is a simple English word. “Joinder” is defined at page 709 of the Chambers Twentieth Century Dictionary to mean, “joining”. This opens the doors to me to examine the Order and Rules, the quo warranto, for the application. It is my respectful opinion that they are wholly and entirely irrelevant to the application. And they were the rules the Court below was called upon to consider the application, grant it or refuse it.
And here the observation by the Supreme Court in Mrs. Olu Solanke V. G Somefun & Ors (1974) 1 S.C. 141 per Sowemimo J.S.C. (as then he was) at page 148 merits my respectful quotation. Said he:-
“Rules of Court are meant to be complied with and therefore any party or Counsel seeking the discretionary power of a Judge to be exercised in his favour must bring his case within the provisions of the. Rules on which he purported to make his application.
If Counsel fails to discharge their duties in that respect, it is but fair and right that a Court should refuse to exercise its discretionary power… Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case within a procedure made for the purpose of a fair and quick trial.”
Certainly, in allowing the motion by the applicant and granting the application; the learned trial Judge was exercising discretion. It is legalis discretio. Discretion is not freedom. Discretion does not empower a man to do what he likes because he is minded to do so; he must in the exercise of his discretion do, not what he likes but what he ought. See Roberts V. Hopwood (1925) A.C. 578, 613 per Lord Wrenburg.
The present appeal is against the exercise by the learned trial Judge of his legal discretion. As observed by the Supreme Court in University of Lagos V. Aigoro (1985) 1 NWLR (Pt.1) 143 per Bello, JSC, (as then he was) at page 145:-
“An appeal court (which we are) may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all cases where it is in the interest of justice to interfere”. (the brackets with the contents are supplied).
An appellate court has a right, indeed, a duty to inquire whether or not the discretion of a lower court was exercised judicially – that is in accordance with law, the Rules and all the existing binding decisions interpreting the Law or Rules. If a court proceeds on a wrong principle in a matter within its discretion, the order may be set aside by an appellate court.
In my respectful opinion, after reading the Record of Appeal and considering the arguments by counsel in their respective briefs, I have no doubt that this is an appropriate case where this court ought to interfere with the exercise of its discretion by the court below. I do interfere accordingly.
There is, therefore, some merit in the appeal. I do allow it and, do hereby set aside the Ruling and Orders by the Court below on the 15th day of December, 1999.
For the above reason and for the other reasons more fully detailed in the leading judgment by my Lord, I do agree completely with his conclusion and do abide by the consequential order (s) contained in the leading judgment.
PATRICK IBE AMAIZU, J.C.A.: It is trite that in a representative action, every member of the class represented by the named plaintiff is equally a party to the action though not named. Ambassador A. Y. Eke & Or. v. Nayo Rubber Industries Ltd. & Or In Re Clara Eke (1993) 4 NWLR Part 286, p. 176.
In the present suit/one Abraham Adeniyi sued for and on behalf of the Serum Ruling family of Odo Ayedum Ekiti as plaintiffs in the lower court. The Statement of Claim is dated 30th day of October, 1997. In the course of hearing the suit, the defendants (No.6) now the appellants filed a motion on notice praying the lower court for an order –
“Striking out the substantive case for incompetence as the plaintiffs – respondents have no locus to bring the action”.
Following this application, Prince Adeyemi Ajibade, a member of Serum Ruling family brought a motion on notice for –
“An order joining the applicant in the substantive suit as co-plaintiff and on behalf of other members of Serum Royal Family of Owa Ruling House to the Owa of Odo – Ayedum Ekiti”.
In an affidavit opposing the application the appellants averred in paragraphs 5 & 6 thereof as follows –
“5. That the present motion to add a co-plaintiff is a result of the motion we filed on 9th June, 1999, to get the substantive case struck out as the plaintiffs therein have no standing to bring the case.
6. That the purpose of the present motion of the plaintiffs/applicants is to overreach us”.
It is my view that the motion for striking out the substantive suit should have been considered first as the interest of the applicant – Prince Adeyemi Ajibade is subsumed in the plaintiffs’ now the respondents’ interest.
For the above reason and the fuller reason given in the lead judgment of my learned brother Onnoghen J.C.A., I also agree that the appeal has merit and should be allowed. The appeal is allowed.
Appearances
A.O. Akanle, Esq. – (with him, B. Udevbure, Esq.)For Appellant
AND
- A. Owoyemi, Esq.For Respondent
