CHRISTOPHER MEDUKAM v. UCHENNA EGEMOLE
(2010)LCN/3819(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of May, 2010
CA/E/174/2005
RATIO
APPEAL: WHAT IS THE FOUNDATION OF ISSUES FORMULATED FOR DETERMINATION IN AN APPEAL
It is a truism that appeals are argued upon, Issues formulated for its determination by the parties. It must however always be borne in mind as well that grounds of appeal are the arrow head or the foundation of Issues for determination. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: DISTINCTION BETWEEN PRELIMINARY OBJECTION AND ISSUE FOR DETERMINATION
It is settled law that there is a difference between a preliminary objection and an Issue for determination In my considered view if the Plaintiff/Respondent has any grouse with the competence of the instant appeal, he should avail himself of the procedure provided in the Rules of this Court relating to the manner in which the competence of the process by which an appeal is initiated is challenged. The Plaintiff/Respondent cannot challenge the competence of the instant appeal by an Issue he has formulated for the determination of the appeal Also see in this regard the case of ADDAX PETROLEUM DEVELOPMENT (NIG) LTD V. IBEH & 50 ORS All FWLR (pt. 380) 11558 at 1569 where this Court per Rhodes-Vivour, JCA; stated thus –
“Where a party contends that the appeal is incompetent, he can do by:
(a) Filing a notice of preliminary objection stating the ground, to wit appeal is incompetent and the Court of Appeal lacks jurisdiction to entertain it.
(b) Filing a motion on notice seeking an order striking out the notice of appeal as incompetent and the Court of Appeal lacks jurisdiction to entertain it.
(c) Formulating the issue of jurisdiction and bringing it before the court by due process. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
ACTION: PARTIES TO AN ACTION; PRINCIPLES GOVERNING THE JOINDER OF PARTIES
The principles governing the joinder of parties whether as a plaintiff or Defendant to an existing action; and whether the application is made by the Plaintiff or defendant in the said existing action or by an intervener, are not recondite the law reports are replete with cases in which the principles the joinder of parties have been enunciated. I will now refer to some of the cases. The case of IGE & ORS V. FARINDE & ORS (1997) NWLR Pt. 354 42 clearly brings it out amongst others that the aims of joinder of a party to a pending suit are (i) to put an end to litigation and not to have parallel proceedings in which the self-same issue is raised leading to different and inconsistent results; and (ii) for the person joined to be bound by the result of the litigation. The case under reference also brings it out clearly that an applicant seeking to join a pending case has the duty of satisfying the court that he is a person who ought to have been joined in the suit in the first instance or that his presence before the court is necessary to enable the court to effectually and completely adjudicate upon and settle all issues involved therein. Again in the case under reference it was said that the main question for determination in an application for the joinder as a co-plaintiff or co-defendant is whether or not the applicant in question is a necessary party and that the court would order the joinder once the presence of the person is necessary to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter.
Dealing specifically on the joinder of an intervener whether as a plaintiff or defendant in a pending case, the key test was said to be whether the applicant will be directly affected by the judgment of the court in the suit by curtailing or interfering with the enjoyment of his legal right. The reason for this, it was further said is because the only reason which makes it necessary to make a person a party to an action is so that he would be bound by the result of the action; therefore, the question to be settled in the action must be one which cannot be effectually and completely settled unless he is a party.
The court entertaining an application for joinder brought by an intervener is enjoined to consider only whether a prima facie for joinder has been established and not wade into the merits of the case. Finally, in the case under reference, it was said that it is desirable that intending co-plaintiffs should make sure that there is no conflict of interest or any division of opinion between the original plaintiff and themselves is likely to arise. This is because co-Plaintiffs will not be allowed to sever or take inconsistent steps and ought to be represented at the trial by the same solicitor or counsel.
The question or issue of joinder of parties and the parameters governing the same was also considered in the case of RINCO CONSTRUCTION CO. LTD v. VEEPEE INDUSTRIES LTD & ANOR (2005) All FWLR (Pt.264) 816. At pages 825-826 Kalgo, JSC; dwelling on the issue of joinder of parties said thus –
“Let me take briefly the issue of joinder. Anyone whose presence is crucial and fundamental to the resolution of a matter before the court must be made a party to the proceedings. See D.O. Ogbene and Sons Ltd vs. Amoruwa (1986) 3 NWLR (Pt.32) 856. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled therefore must be a question in the action which cannot be effectively and completely settled unless he is a party. See Expso Limited vs. Pafab Enterprises Limited (1999) 1 NWLR (Pt.591).
Still on the parameters governing the joinder of parties, is the case of ALHAJI BUBA MANU MUTUM BIYU V. ALHAJI ABDULAZIZ IBRAHIM & ORS (2005) All FWLR (pt, 274) 261 at 287.
All the cases hereinbefore cited make it clear that the interest of the party being sought to be joined in a case, or the interest such a party is said to have in the case alone; and/or the desire solely, that the said party being sought be joined should be bound by the decision in the case; are no valid basis for ordering or permitting a joinder. For an order of joinder to be made, on the basis of the interest of the party being sought to be joined in a case and/or for the purpose of having the said party bound by the outcome of the case, there must be a question in the action between the existing parties which cannot be effectually and completely settled unless the said party is made a party. (Underlining supplied by me for emphasis). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA (Presided) Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
CHRISTOPHER MEDUKAM Appellant(s)
AND
UCHENNA EGEMOLE
IN THE MATTER OF APPLICATION TO JOIN AZUBUIKE OKELUE.
INTERVENER/APPELLANT AS (CO-PLAINTIFF) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling delivered on 13/4/2005 by Honourable Justice D.O.C. Amaechina of the Anambra State High Court, Onitsha Judicial Division. The High Court will hereinafter simply be referred to as ‘the lower court’.
The Ruling of the lower court appealed against is at pages 34 – 43 of the Record of Appeal. The facts of the case as gathered from the Ruling of the lower court, put briefly are that on 13/12/1995, one Sylvanus Medukam as Plaintiff commenced Suit No. 0/782/95 – a land case against one Uchenna Egemole as Defendant. The dispute in the case is over the ownership of two landed properties known as Nos. 9 and 10 Ede Road, Okpoko, Ogbaru LGA, Anambra State. The Plaintiff claimed exclusive ownership of the properties in dispute; while the Defendant alleged joint ownership of the properties with the Plaintiff. The original Plaintiff – Sylvanus Medukam died sometime in December 1998 in the course of the proceedings, and the present Plaintiff on record – Christopher Medukam was subsequently substituted for him. The original Defendant also died sometime in June 2001 in the course of the proceedings and the present Defendant on record – Charles Egemole was subsequently substituted for him. After pleadings have been settled and I exchanged by parties, and issues joined, the Intervener/Applicant/Appellant (who will hereinafter be simply referred to as ‘the Appellant’) by a motion on notice dated 26/3/2001 and filed on 27/3/2001 sought for an order joining him as a Co-Plaintiff in the suit. The application for the joinder of the Appellant as a Co-Plaintiff was made by C.A. Nwokike of counsel. C.A. Nwokike of was the counsel who filed Suit No: 0/782/95 on behalf of the deceased original Plaintiff therein. The said Suit No. 0/782/95 will hereinafter be simply referred to as the ‘instant action’. Indeed, Nwokike of counsel settled the Statement of Claim in the case.
The application for the joinder of the Appellant was opposed by both Plaintiff/Respondent and Defendant/Respondent who respectively filed counter affidavits for this purpose. The lower court in its Ruling delivered on 13/4/2005 found no merit in the application for the joinder of the Appellant as a Co-Plaintiff in the case. The lower court therefore refused the order sought and dismissed the application.
The Appellant being aggrieved with the Ruling of the lower court lodged an appeal against the same by a Notice of Appeal dated 25/4/2005 and filed on 26/4/2005. The Notice of Appeal contains three grounds of appeal. The grounds of appeal with their particulars are re-produced here under:-
GROUNDS OF APPEAL
1. The court erred in law in holding that the Intervener/Appellant is not a necessary party to join in Suit No. 0/782/95.
PARTICULARS OF ERROR IN LAW
The Court despite making a finding based on the affidavit and counter-affidavit of the parties to the proceedings that the Appellant once purchased the subject matter of the suit still hold (sic) that the Appellant is not a necessary party to join in the suit.
2. The Court erred in law in holding that C.A. NWOKIKE, ESQ the Counsel for the Intervener/Appellant is not competent to appear for the Intervener/Appellant in Suit No. 0/782/95 when there is no application before the lower court over the competence or otherwise of C.A. NWOKIKE, ESQ to appear in the suit.
PARTICULARS OF ERROR IN LAW
The Court despite the fact that there is no application before it by any of the parties to the suit on the competence or otherwise of C.A. NWOKIKE, ESQ to appear in the Suit No. 0/782/95 on its own ruled on non-existing application over the competence of the said C.A. NWOKIKE, to appear in the suit.
3. The Court erred in law in holding that the purchase made by the Intervener/Appellant of the subject matter of the Suit No. 0/782/95 is null and void when there is no application before the court for the nullity (sic) or otherwise of the purchase made by the Appellant.
PARTICULARS OF ERROR IN LAW
The Court, despite the fact that there is no application before it by any of the parties to the suit on the effect of interest acquired by the Appellant over the subject matter of the suit on its own made out a case, canvassed same and ruled that the Appellant’s interest in the subject matter of the suit is null and void.
In compliance with the Rules of this Court, parties filed and exchanged briefs of argument. The Appellant’s brief of argument dated 10/11/2005 and filed on the same date was settled by C.A. Nwokike Esq.; that of the Plaintiff/Respondent dated 2/5/2006 and filed on 6/3/2006 but deemed as properly filed and served on 19/4/2006 was settled by E.O. Maduka Esq.; while the brief of argument of the Defendant/Respondent dated 6/3/2006 and filed on the same date but deemed as properly filed and served on 6/6/2006 was settled by B.C. Uzuegbu. The appeal was entertained on 4/3/2010 and learned counsel to the parties relied on and adopted the briefs of argument as identified above, filed on behalf of their respective clients as their arguments in the appeal.
Two (2) Issues are formulated for the determination of the appeal in the Appellant’s brief of argument. They read thus: –
A. Was the trial court right in holding that the Intervener/Appellant is not a necessary party to join in Suit No. 0/782/95 despite making a finding based on the affidavit and counter affidavit of the parties in the suit that the Intervener/Appellant once purchased the subject matter if this suit.
B. Whether a trial court can make a decision or ruling prejudicing a party issue in a substantive suit without an application to that effect by any of the parties to the proceedings.
Two (2) Issues are formulated for the determination of the appeal in the brief of argument of the Plaintiff/Respondent. The Issues read thus:-
(a) Whether the Intervener/Appellant who is not a son/member of Late Mr. Sylvanus Medukam’s family and whose alleged purchase of No, 10 Ede Road, Okpoko is mala fide and not bona fide (sic) is necessary or relevant party as Co-Plaintiff in a suit instituted by Late Sylvanus Medukam on 13-12-95 and substituted by his first and Eldest son the Plaintiff/Respondent.
(b) Is the appeal filed by CA Nwokike, Esq., of counsel not incompetent or incapacitated in view of his acting as Counsel for the father of the Plaintiff/Respondent and later for the Intervener/Applicant seeking Joinder with the Plaintiff while (sic) the same time trying to oust the Plaintiff/Respondent from his heritage.
Three (3) Issues are formulated for the determination of the appeal in the brief of argument of the Defendant/Respondent. The Issues read thus:-
“a. Whether CA Nwokike Esq. of Counsel can act for the Plaintiff/Respondent and the Intervener/Appellant who have conflicting interests.
b. Was the Intervener/Appellant a necessary party to join in Suit No. 0/782/95.
c. Of what use will the presence of the Intervener/Appellant serve in Suit No.0/782/95 to determine the only live issue in the case, which is between the Plaintiff/Respondent and Defendant/Respondent who is the owner of the land thereof.
The first exercise I consider it pertinent to embark upon is, to determine which of the Issue/Issues for the determination of the appeal as formulated by the parties is/are most appropriate for the determination of the appeal; or whether to formulate Issues which I believe will determine the main complaints or grievances in the appeal. See IDRIS & ORS V. AUDU (2008) All FWLR (pt. 422) 1122 at 1148 -1149.
It is glaring from all that has been stated before now, that the Appellant who filed a Notice of Appeal containing three grounds of appeal formulated two Issues for the determination of the appeal from the said three grounds, There is nothing wrong with this, This is because the position of the law on the issue or question of grounds of appeal vis-a -vis issues formulated for the determination of the appeal is that, while a party in an appeal can formulate an Issue for determination of the appeal covering more than one ground of appeal, it is however not permissible for a party in an appeal to formulate more Issues for determination of the appeal than there are grounds of appeal.
See AMIMIKE INVESTMENT LTD V. LADIPO [2008] All FWLR (Pt. 4261 1929 at 1943 and IDRIS & ORS V. AUDU (supra) at 1147, The Appellant is therefore manifestly in order to have formulated two Issues for the determination of the appeal from the three grounds of appeal contained in the Notice of Appeal. The Appellant however did not marry the Issues formulated for the determination of the appeal to the grounds of appeal. Appellants have been consistently admonished by the appellate courts to always marry the Issues formulated for the determination of the appeal with their grounds of appeal. See TAHIR V. KAPITAL INSURANCE CO. LTD [2007] All FWLR (pt.370) 1482 at 1495; and EZEJA & ANOR V. THE STATE [2006) All FWLR (Pt.309) 1535 at 1559, I am of the considered view that the need to marry Issues formulated for the determination of an appeal to the grounds of appeal becomes more compelling when an Issue is formulated to cover more than one ground of appeal. Failure or neglect to marry or denote the ground or grounds of appeal from which each Issue is distilled, suggests that the ground or grounds of appeal which is/are not related to an Issue or from which no Issue is distilled or derived, is deemed abandoned and would be struck out See NICO OLIVER V. DANGOTE INDUSTRIES LTO (2010) All FWLR (Pt.506) 1858 at 1873.
It has already been stated that in the instant appeal, the Appellant did not marry the Issues formulated to his grounds of appeal. It is however glaring from a consideration of the Issues formulated for the determination of the instant appeal and the grounds of appeal that the Appellant has formulated no Issue from ground number two of the grounds of appeal. Given what has been stated above concerning grounds of appeal from which no Issue is distilled or derived, ground two of the grounds of appeal is liable to be struck out, the same having been abandoned; as the Appellant formulated no Issue from or in relation to it. See also the case of WEST AFRICAN EXAMINATION COUNCIL V. ADEYANJU [2008] All FWLR (Pt. 428) 206 at 221. Accordingly, ground two of the grounds of appeal herein is hereby struck out the same having been abandoned as the Appellant formulated no Issue from or in relation to it.
The Respondents respectively formulated an Issue for the determination of the appeal in relation to whether or not the Appellant’s counsel – C.A. Nwokike can act for both the Appellant and the Plaintiff/Respondent in respect of the application for joinder. Indeed, the Defendant/Respondent couched the Issue in question thus:-
Is the appeal filed by C.A. Nwokike, Esq., of counsel not incompetent or incapacitated in view of his acting as Counsel for the father of the Plaintiff/Respondent and later for the Intervener/Applicant seeking Joinder with the Plaintiff while at the same time trying to oust the Plaintiff/Respondent from his heritage?.
The instant appeal it should be borne in mind is at the instance of the Appellant and the grounds of appeal contained in the Notice of Appeal are in respect of the Appellant’s complaints in relation to the decision of the lower court refusing or declining his prayer to be joined as a Co-Plaintiff in the instant suit.
It is clear from page 38 of the Record of Appeal that the lower court in coming to a decision in respect of the application for joinder made by the Appellant considered two Issues, namely:-
1. Whether it is proper to join as co-plaintiff in this suit a person whose interest in the subject matter of litigation is in conflict with that of the existing plaintiff.
2. Whether the Applicant seeking to be joined in this suit as co-plaintiff is a necessary party in the sense that his presence is necessary for effectual and complete determination of this suit.
It is at page 41 of the Record of Appeal that the lower court in its Ruling made reference to C.A Nwokike of counsel and this is what the court said:-
In the case at hand, the Applicant had notice of this suit and also retained C.A. Nwokike, Esq former counsel for the plaintiff to handle the purported sale of the property to him during the pendency of this suit. It is even worse that the Applicant claimed that the purchase (sic) the property from the deceased (original plaintiff). I can only add that the conduct of the said C.A. Nwokike, Esq. in encouraging the Applicant to purchase the property in dispute rightly or wrongly during the pendency of this suit is, to say the least inappropriate having regard to the fact and the expectation that as counsel who filed this suit he ought to know better. I say no more on that so as not to endanger learned counsel’s career as a legal practitioner.
In its ruling, the lower court never formulated the issue of the propriety or otherwise of C.A. Nwokike, Esq. who had previously acted for the original Plaintiff to now represent the Appellant for the determination of the application for joinder and never based its decision refusing the application for the joinder sought on any such Issue.
The law clearly allows either of the parties to a case whether he is a plaintiff or a defendant to appeal against any aspect of the decision of the lower court such a party finds unconscionable or is not satisfied with. If both of the Plaintiff/Respondent and Defendant/Respondent feel aggrieved with the failure of the lower court to have based its decision in refusing the Appellant’s application for joinder on the ground of his counsel – C.A. Nwokike, Esq. having previously acted for the original plaintiff, they have the right to have appealed against the Ruling of the lower court on that ground Neither of them has done this.
It is a truism that appeals are argued upon, Issues formulated for its determination by the parties. It must however always be borne in mind as well that grounds of appeal are the arrow head or the foundation of Issues for determination. Neither of the Respondents in the instant appeal lodged an appeal against the non-finding or any finding made by the lower court in relation to the Appellant’s counsel representing the Appellant despite the fact that he had prior to the making of the application for the joinder of the Appellant acted as counsel for the father of the Plaintiff/Respondent. Before now, I have found the ground of appeal (i.e. ground two) of the Appellant relating to this Issue as having been abandoned by him inasmuch as no Issue was formulated in relation to the same and same has been struck out. The said ground two having been abandoned and struck out, it would appear in the circumstances that the Issue as to whether or not C.A. Nwokike, Esq. can act for the Appellant having previously acted for the original Plaintiff is no longer a live one upon which the appeal can be determined even though made an Issue by the Respondents. The reason for this is not farfetched and it is that there is no longer any ground of appeal in existence upon which the said Issue can be said to be predicated. Indeed it would appear that the Issue in question as framed or couched by the Plaintiff/Respondent and which attacks the competence of the instant appeal by reason of the Appellant’s counsel having once acted as counsel for the father of the plaintiff/Respondent transcends the bounds of an Issue properly so called and has entered into the realms of a preliminary objection. It is settled law that there is a difference between a preliminary objection and an Issue for determination In my considered view if the Plaintiff/Respondent has any grouse with the competence of the instant appeal, he should avail himself of the procedure provided in the Rules of this Court relating to the manner in which the competence of the process by which an appeal is initiated is challenged. The Plaintiff/Respondent cannot challenge the competence of the instant appeal by an Issue he has formulated for the determination of the appeal Also see in this regard the case of ADDAX PETROLEUM DEVELOPMENT (NIG) LTD V. IBEH & 50 ORS All FWLR (pt. 380) 11558 at 1569 where this Court per Rhodes-Vivour, JCA; stated thus –
“Where a party contends that the appeal is incompetent, he can do by:
(a) Filing a notice of preliminary objection stating the ground, to wit appeal is incompetent and the Court of Appeal lacks jurisdiction to entertain it.
(b) Filing a motion on notice seeking an order striking out the notice of appeal as incompetent and the Court of Appeal lacks jurisdiction to entertain it.
(c) Formulating the issue of jurisdiction and bringing it before the court by due process.
From all that has been said, Issue (b) hereinbefore set out formulated for the determination of the instant appeal by the Plaintiff/Respondent and Issue (a) also hereinbefore set out formulated by the Defendant/Respondent for the determination of the instant appeal not being related to or flowing from any of the extant grounds of appeal contained, in the Notice of Appeal are discountenanced The appeal will therefore be determined upon the two issues formulated by the Appellant in his brief of argument.
ISSUE A
Dwelling on this Issue, the Appellant in the main submitted that the lower court was wrong in holding that he is not a necessary party to join the instant suit as a Co-Plaintiff when the said court made a finding based on the affidavit evidence before it that he, (i.e Appellant) once purchased the subject matter of the said suit. The Appellant said to the effect that the lower court as if it was at the stage of the application for joinder trying the case held as established (i) that he purchased the property the subject matter of the instant suit after the death of the original Plaintiff; (ii) that the property the subject matter of the instant suit was purchased during the pendency of the case and (iii) that his interest is in conflict with that of the existing sale Plaintiff. The Appellant said that the fact that he purchased the subject matter of the instant suit is common and admitted by the parties in the case. It is the submission of the Appellant that the date, time, who he purchased the subject matter of the instant suit from, or the circumstances of the purchase of the subject matter of the suit, are areas of conflict in the affidavit evidence before the lower court and that the same could not be taken as established until evidence was led by the parties and document of purchase placed before the lower court or tendered as an exhibit. It is the further submission of the Appellant that at the stage of the application for his joinder as a Co-Plaintiff, the lower court ought to have limited itself to the common element in the affidavit and counter affidavit of the parties in determining whether he is a necessary party in the instant suit which may be affected by the outcome of the case and not delve into the incidences of proof and establishment of facts not apparent from the said affidavit and counter affidavits. The Appellant submitted to the effect that the common element that he purchased the subject matter of the instant suit was sufficient to have warranted his joinder as a Co-Plaintiff. This is more so as his deposition to the effect that he has the original documents in respect of the subject matter of the instant suit was not challenged by the Respondents in their respective counter affidavits. The cases of Eboka v. Esebede (2003) 17 WRN 173; and Ijebu-Ode LGC v. Segun (2004) 46 WRN 96 were cited in ration to who qualifies as a necessary party.
The Appellant said that his interest and that of the Plaintiff/Respondent is harmonious and there is no iota of conflict of interest as far as the prosecution of the instant suit is concerned. In this regard, the Appellant said that the case of the Plaintiff/Respondent is that the subject matter of the suit belongs to Chief Sylvanus Medukam the original Plaintiff and that the Defendant/Respondent is a trespasser. He also said that his own case in the same vein is that the subject matter of the instant suit belongs to Chief Sylvanus Medukam, the original Plaintiff from whom he derived his title and that the Defendant/Respondent is a trespasser It is the submission of the Appellant that the result which he and the Plaintiff/Respondent hope to achieve in prosecuting the instant suit before the lower court is for the said court to hold that its subject matter belongs to Chief Sylvanus Medukam and not the Defendant/Respondent The Appellant submitted that it is only after the files his Statement of Claim that the lower court can be in a better position to assess whether his interest is in conflict with that of the Plaintiff/Respondent or not “The case of Fubara v. Minimah (2003) 32 WRN 1 was cited in aid.
In his brief of argument, the Plaintiff/Respondent contended that the claim or cause of action of the original Plaintiff in the instant suit would help determine or serve as a pointer concerning the issue as to whether the Appellant is a relevant, proper or necessary party to warrant the success of the application for his joinder as a Co-Plaintiff. The Plaintiff/Respondent in effect submitted that the position of the Appellant in the light of the cause of action of the original Plaintiff constitutes a riotous diversion and a total divorce to the. Plaintiff/Respondent’s position, right/interest and or claim. It is also the submission of the Plaintiff/Respondent that the finding of the lower court based on the affidavit evidence before it does not render the Appellant a necessary party but on the contrary rendered him as one who should sue him (i.e. Plaintiff/Respondent) in a separate claim and separate suit to get back the property which the original Plaintiff genuinely or fraudulently or induced the Appellant into, by way of purchase. The Plaintiff/Respondent submitted that the issues in the instant suit which the Appellant wishes to join as a Co-Plaintiff can be effectively and completely adjudicated upon by the court without joining the Appellant The case of Lajumoke v. Doherty (1969) 1 NWLR 287 (sic) was cited in aid. The Plaintiff/Respondent submitted that the case cited by the Appellant in his brief were not applicable or relevant given the peculiar facts of this case.
Dwelling on the Issue as to whether or not the Appellant qualified as a necessary party to join the instant suit as a Co-Plaintiff, the Defendant/Respondent identified the live issue the lower court has to decide in he instant suit as relating to title and particularly as to who between the Plaintiff and the Defendant is the true owner of the land in dispute. The injunctive reliefs according to the Defendant/Respondent would be determined by the answer to the live issue. It is the submission of the Defendant/Respondent that the presence of the Appellant as a Co-Plaintiff in the instant action is not necessary for the determination of the live issue in the case. The submission was also made that the Appellant does not qualify as a necessary party simply because he claims to have interest in the subject matter the proceedings. That to qualify as a necessary party; the question to be settled in the instant suit must be such that cannot be so settled unless the Appellant is made a party. It was submitted that the presence of the Appellant would confuse the issues in the instant suit and the cases of Penook, Investment Ltd v. Hotel Presidential Ltd (1983) 4 NWLR (sic) and Lajumoke v. Doherty (supra) were cited in aid.
The principles governing the joinder of parties whether as a plaintiff or Defendant to an existing action; and whether the application is made by the Plaintiff or defendant in the said existing action or by an intervener, are not recondite the law reports are replete with cases in which the principles the joinder of parties have been enunciated. I will now refer to some of the cases. The case of IGE & ORS V. FARINDE & ORS (1997) NWLR Pt. 354 42 clearly brings it out amongst others that the aims of joinder of a party to a pending suit are (i) to put an end to litigation and not to have parallel proceedings in which the self-same issue is raised leading to different and inconsistent results; and (ii) for the person joined to be bound by the result of the litigation. The case under reference also brings it out clearly that an applicant seeking to join a pending case has the duty of satisfying the court that he is a person who ought to have been joined in the suit in the first instance or that his presence before the court is necessary to enable the court to effectually and completely adjudicate upon and settle all issues involved therein. Again in the case under reference it was said that the main question for determination in an application for the joinder as a co-plaintiff or co-defendant is whether or not the applicant in question is a necessary party and that the court would order the joinder once the presence of the person is necessary to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter.
Dealing specifically on the joinder of an intervener whether as a plaintiff or defendant in a pending case, the key test was said to be whether the applicant will be directly affected by the judgment of the court in the suit by curtailing or interfering with the enjoyment of his legal right. The reason for this, it was further said is because the only reason which makes it necessary to make a person a party to an action is so that he would be bound by the result of the action; therefore, the question to be settled in the action must be one which cannot be effectually and completely settled unless he is a party.
The court entertaining an application for joinder brought by an intervener is enjoined to consider only whether a prima facie for joinder has been established and not wade into the merits of the case. Finally, in the case under reference, it was said that it is desirable that intending co-plaintiffs should make sure that there is no conflict of interest or any division of opinion between the original plaintiff and themselves is likely to arise. This is because co-Plaintiffs will not be allowed to sever or take inconsistent steps and ought to be represented at the trial by the same solicitor or counsel.
The question or issue of joinder of parties and the parameters governing the same was also considered in the case of RINCO CONSTRUCTION CO. LTD v. VEEPEE INDUSTRIES LTD & ANOR (2005) All FWLR (Pt.264) 816. At pages 825-826 Kalgo, JSC; dwelling on the issue of joinder of parties said thus –
“Let me take briefly the issue of joinder. Anyone whose presence is crucial and fundamental to the resolution of a matter before the court must be made a party to the proceedings. See D.O. Ogbene and Sons Ltd vs. Amoruwa (1986) 3 NWLR (Pt.32) 856. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled therefore must be a question in the action which cannot be effectively and completely settled unless he is a party. See Expso Limited vs. Pafab Enterprises Limited (1999) 1 NWLR (Pt.591).
Still on the parameters governing the joinder of parties, is the case of ALHAJI BUBA MANU MUTUM BIYU V. ALHAJI ABDULAZIZ IBRAHIM & ORS (2005) All FWLR (pt, 274) 261 at 287.
All the cases hereinbefore cited make it clear that the interest of the party being sought to be joined in a case, or the interest such a party is said to have in the case alone; and/or the desire solely, that the said party being sought be joined should be bound by the decision in the case; are no valid basis for ordering or permitting a joinder. For an order of joinder to be made, on the basis of the interest of the party being sought to be joined in a case and/or for the purpose of having the said party bound by the outcome of the case, there must be a question in the action between the existing parties which cannot be effectually and completely settled unless the said party is made a party. (Underlining supplied by me for emphasis).
The Appellant brought an application before the lower court to join the instant suit – Suit No: 0/782/95 – Christopher Medukam v. Charles Egemole as a Co-Plaintiff. The Plaintiff/Respondent glaringly does not wish to have the Appellant join him as a Co-Plaintiff in the prosecution of the instant case. The Defendant/Respondent likewise is opposed to the joinder of the Appellant as a party in the instant suit. It is clear from the cases cited hereinbefore that the Appellant being an Intervener in the instant suit, has the duty or burden of establishing (i) that he will be directly affected by the judgment in the suit by curtailing or interfering with the enjoyment of his legal rights in the subject matter of the instant suit; and (ii) that it is necessary for him to be joined as a Co-Plaintiff as he seeks, so that he should be bound by the result of the case because there is a question to be settled in the instant suit which cannot be effectually and completely settled unless he is joined as a Co-Plaintiff.
The motion brought by the Appellant before the lower court for his joinder as a Co-plaintiff in the instant suit is at page 1 of the Record of Appeal while the supporting affidavit of the said motion is at pages 2 – 4. The Appellant did not exhibit the processes in the instant suit which he seeks to join as a Co-Plaintiff to the application, What the Appellant exhibited to the motion for joinder are the writ of summons and claims in Suit No. 0/362/99 (i.e. Exhibits A and B). The parties in the said suit are as follows:-
1. MRS. JOSEPHINE EGOMOLE
2. MR. CRISTOPHER MEDUKAM
AND
1. MASTER ELOCHUKWU MEDUKAM
2. MASTER ABEL MEDUKAN
3. MASTER EKENE MEDUKAM
4. MRS. CELMENTINE MEDUKAM
As 1st Set of Defendants collectively and individually
AND
1. MR. MIKE EZENEGAROKA
2. MR. AZUBIKE OKELUA
2nd Set of Defendants
In paragraphs 2, 3 and 4 of the supporting affidavit of the motion for joinder, the Appellant deposed to the effect that he purchased the subject matter of the instant suit from Chief Sylvanus Medukam (i.e the original Plaintiff); and that the fact of the purchase of the said subject matter by him is not only well known to both the Plaintiff/Respondent and Defendant/Respondent but that the said parties had earlier sued him in respect of the subject matter of the instant suit. To buttress the depositions, the Appellant exhibited the writ of summons and claims in Suit No 0/362/99, The claim in Suit No: 0/362/99 as contained in Exhibit ‘B’ attached to the supporting affidavit of the motion for joinder is hereby re-produced:-
CLAIM
The Plaintiffs are owners in possession of the property known as and called No- 10 Ede Road, Okpoko valued One Million Naira, Sometime in December 1998, the 1st Set of Defendants through their Agent, Michael Ezenagalora of the second set of Defendants, purported to have sold the said No 10 Ede Road to Mr. Azubike Okelue of the 2nd Set of Defendants.
The purported sale was done without the knowledge and consent t of the Plaintiffs, WHEREOF THE PLAINTIFFS CLAIM AS FOLLOWS: –
(1) A declaration that the purported sale is Null and Void and without effect.
(2) Declaration that the sale being Null and Void, that the 2nd Defendant of the second set of defendants has received nothing in exchange for his money.
(3) Damages for Trespass.”
It would be noted that the Appellant is not seeking to join Suit No. 0/362/99 as a Plaintiff. It is the instant suit before the lower court, i.e Suit No. 0/782/95 that he wants to join as a Co-Plaintiff. Indeed, the Appellant in law cannot apply to be joined as a Co-Plaintiff in Suit No: 0/362/99. This is because he is already a Defendant therein and the position of the law is that a party cannot be both a plaintiff and defendant in the same action.
It is clear from the Ruling of the lower court that pleadings have been settled, filed and exchanged by the parties in the instant suit which the Appellant Seeks to join as a Co-Plaintiff as at the time the Appellant applied for the order in this regard. The processes in the instant suit, particularly the writ of summons and the pleadings of the parties are not part of the record in the instant appeal The position of the law as it relates to the joining of an Intervener such as the Appellant to a pending action, whether as a plaintiff or defendant, as enunciated in the case of IGE V. FARINDE (supra) enjoins the Appellant to establish (i) that he will be directly affected by the judgment in the suit by curtailing or interfering with the enjoyment of his legal rights in the subject matter of the suit; (ii) that it is necessary for him to be joined as a Co-Plaintiff as he seeks, so that he should be bound by the result of the case because there is a question to be settled in the instant suit which cannot be effectually and completely settled unless he is joined as a Co-Plaintiff.
The point therefore is, how does the Appellant expect this Court to independently (and I have used the word ‘independently’ most advisedly) go about identifying the question to be settled in the instant suit No. 0/782/95 which he seeks to join as a Co-Plaintiff, talk less of whether or not there is a question or issue therein which cannot be effectually and completely adjudicated upon unless he is joined as a Co-Plaintiff, in the absence of the pleadings in the said suit, in the Record of Appeal? The Court is no magician and I simply do not see how this Court can independently embark on this vital exercise, be that as it may.
This Court therefore can only rely on facts relating to the instant suit which the Appellant seeks to join as a Co-Plaintiff as can be gathered from the processes available in the Record of Appeal, particularly the Ruling of the lower court The lower court in the first paragraph of its Ruling at page 34 of the Record of Appeal gave a summary of what the instant suit which the Appellant seeks to join as a Co-Plaintiff is about. The court stated thus –
This is a land suit commenced on 13th December, 1995; it arose because the original plaintiff, Sylvanus Medukam (now deceased) and the original defendant, Uchenna Egoillone (also deceased) disputed over the ownership of two landed properties known as Nos. 9 and 10 Ede Road, Okpoko, Ogbaru L.G.A of Anambra State within the jurisdiction of this Court The said original plaintiff claimed exclusive ownership of the said properties while the original defendant alleged joint ownership of the properties with the original plaintiff.”
The first question to ask against the backdrop of the parameters for joinder of parties (which had extensively been stated hereinbefore) vis-a -vis the summary of the instant suit which the Appellant seeks to join as a Co-Plaintiff is what question is there for determination in the instant suit, which cannot be effectually and completely adjudicated upon unless the Appellant is joined as a Co-Plaintiff? It is my considered view that the question raised in the instant suit which the Appellant seeks to join as a Co-Plaintiff and which question is whether the properties in dispute are exclusively owned by the original Plaintiff as substituted by the present Plaintiff/Respondent or jointly owned by the Plaintiff/Respondent and the Defendant/Respondent as alleged by the original Defendant as substituted by the present Defendant/Respondent, glaringly does not require the presence of the Appellant who is claiming one of the said properties i.e No. 10, Ede Road, as his own, for its effectual and complete adjudication. Indeed, the very fact that the Appellant claims the property at No 10, Ede Road, as his own by virtue of having purchased the same from the original Plaintiff and which original Plaintiff instituted the instant suit claiming exclusive ownership of the same property, glaringly shows that there is conflict of interest between the Appellant and the original Plaintiff as substituted by the present Plaintiff/Respondent, in respect of the said property. This is because, while the original Plaintiff as substituted by the present Plaintiff/Respondent (and who by the Appellant’s case should be his vendor) is claiming the exclusive ownership of the said property on the one hand: the Appellant on the other hand is equally laying claim to the same property and this is definitely or glaringly an adverse claim as it relates to the Plaintiff/respondent. The question then is, would it be a judicial and judicious exercise of discretion on the part of the lower court to allow parties who glaringly have adverse claims in respect of a property in dispute, join together as Co-Plaintiffs to prosecute any claim against another party in respect of the said property? I simply do not see how allowing this can qualify as a judicial and judicious exercise of discretion.
The Appellant having regard to his submissions would appear to be of the view that because the lower court made the finding that he once purchased the subject matter of the instant suit, his interest in this regard suffices to warrant his joinder as a Co-Plaintiff This is a clear misconception of the principles governing the question of joinder by the Appellant. The interest the Appellant has in the subject matter of the instant suit by virtue of his claiming to have purchased the same, without more, cannot warrant his joinder as a Co-Plaintiff in the case. The issue involved in the case and which as earlier sated is whether the properties in dispute are exclusively owned by the original Plaintiff as substituted by Plaintiff/Respondent or jointly owned by the plaintiff/Respondent and the Defendant/Respondent as alleged by the original Defendant as substituted by the present Defendant/Respondent glaringly does not require the presence of the Appellant who is claiming one of the said properties i.e. No 10, Ede Road, as his own, for its effectual and complete adjudication. The Appellant clearly is not a necessary party in the instant suit given his claim to the ownership of one of the properties involved therein. It would have been otherwise if the Appellant had been the vendor of the original Plaintiff as substituted by the present Plaintiff/Respondent and seeks to join the suit as a Co-Plaintiff for the purpose of defending the said Plaintiff/Respondent’s title. In the same vein, it would have been otherwise if the Plaintiff /Respondent was not claiming exclusive ownership of the property in dispute and thereby disputing the claim of any other person including the Appellant to the ownership of the property in question. The conflict of interest of the present Plaintiff/Respondent and the Appellant in the subject matter of the instant suit is most glaring and sufficiently identifiable at this stage. The submission of the Appellant that it is only when he files his Statement of Claim that the lower court will be in a better position to assess whether his interest is in conflict with that of the present Plaintiff/Respondent or not has no basis in law.
The lower court in refusing the prayer of the Appellant for his joinder as a Cop-Plaintiff held that it is not proper to join him (i.e Appellant) because his interest in the subject matter of the litigation is in conflict with that of the existing sole Plaintiff. The lower court in my considered view is eminently correct in its finding in this respect having regard to the fact that I too, have hereinbefore found the interest of the Appellant in the subject matter of the instant suit to be in conflict with that of the present Plaintiff/Respondent as the Appellant’s interest is adverse to that of the Plaintiff/Respondent.
The lower court equally found the Appellant not entitled to be joined as a Co-Plaintiff in the instant suit because he is not a necessary party. The lower court in arriving at the conclusion, applied the doctrine of lis pendens. Though, I do not consider the application of the doctrine of lis pendens proper in the circumstances of this case, I am still in agreement with the conclusion reached by the lower court that the Appellant is not a necessary party in the instant suit which he seeks to join as a Co-Plaintiff as the issue in dispute in the case can be effectually and completely adjudicated upon, in his absence in the circumstances Issue A is resolved against the Appellant.
ISSUE B
Dwelling on this Issue, the Appellant submitted in the main that the lower court was wrong to have made a decision or ruling prejudicing the question of his ownership of the subject matter of the instant suit he seeks to join as a Co-Plaintiff without an application in that regard by the Respondents. The holding/finding of the lower court the Appellant quarrels with is that the purchase made by him is null and void. It is the submission of the Appellant that the law is that when an issue is not placed before a court of law, the court has no business dealing with the same. The case of Abbas & Ors Solomon (2001) 7 NSCQR 44 at page 64 was cited in aid. Also, the case of Ijebu-Ode LGC v. Segun (supra) was cited to show that the position of the law is that a court should refrain from entering into enquiry or findings that may prejudice the substantive case at the interlocutory stage.
Dwelling on this Issue, the Plaintiff/Respondent submitted to the effect the lower court necessarily made a pronouncement on the issue of the alleged purchase made by the Appellant due to and pursuant to the forceful depositions of the Appellant on the matter in his supporting affidavit. In order words that the Appellant himself put in issue, the question of the propriety of his purchase on the subject matter of the instant suit he seeks to join as a Co-Plaintiff.
Dwelling on the Issue, the Defendant/Respondent submitted to the effect that the lower court was very correct to have applied the doctrine of lis pendens as it related to the application for joinder before it, as the said court Ii, ground that the Appellant purchased the subject matter of the instant suit which he seeks to join as a Co-Plaintiff during its pendency. It is the further submission of the Defendant/Respondent that the lower court did not rule on the substantive case and that the court had sufficient materials before it to have dealt with the issue of lis pendens.
It would appear most clear from the case of IGE V. FARINDE (supra) that all a court has the vires or power to do in an application for joinder is to decide whether or not a prima facie case for the joinder being sought has been established by an applicant. The court is not to wade into the merits of the case This is because the true or correct test for joinder does not lie in the analysis of the constituents of an applicant’s rights, but rather in what would be the result on the subject matter if those rights were to be established.
The Appellant in seeking to join the instant suit as a Co-Plaintiff, claimed to have purchased the subject matter of the said suit from the original Plaintiff. It is sufficient for -the lower court to have determined whether or not the Appellant qualified as a necessary party to join the suit as a Co-Plaintiff upon the alleged interest of the Appellant vis-a -vis the question which calls for determination in the instant suit. The lower court for this purpose did not need and is indeed precluded in law from dwelling on the validity of the alleged interest of the Appellant in the subject matter of the instant suit, talk less of pronouncing the interest in that regard null and void.
The fact that the lower court refused the application for the joinder of the Appellant as a Co-Plaintiff in the instant suit, is not a bar to his instituting an action in which he will be the sole Plaintiff in respect of the property he claims to own. The danger that any finding on the validity of the Appellant’s interest in the subject matter of the instant suit which he sought to join as a Co-Plaintiff but was refused the order in that regard portends, is that the Appellant might be confronted with issue estoppel in respect of his title in any such action he might decide to institute. This no doubt is the wisdom behind the admonition that the merits of a case should not be considered in an application for joinder.
The lower court irrespective of what necessitated its consideration of the doctrine of lis pendens, clearly waded into the merits of the instant suit, and it did this without joining the Appellant as a Co-plaintiff as prayed by him and yet nullified the alleged title of the Appellant to the subject matter of the said suit. This is unacceptable as it is wrong in law. The pronouncement of the lower court to wit:
“…the Appellant bought nothing in the sense that his purchase of No 10, Ede Road, Okpoko (the subject matter of this suit) during the pendency of this suit is null and void, Therefore his interest in the property is not recognised or allowed by law and so cannot ground or support an application to join this suit as a co-plaintiff”
cannot be and is indeed not a correct parameter for deciding whether or not the joinder sought by the Appellant should be allowed. It is not supported in the circumstances, Issue B is resolved in favour of the Appellant.
Despite the resolution of Issue B in favour of the Appellant, the instant appeal however must fail given my earlier conclusions that the lower court is correct in refusing the joinder of the Appellant as a Co-Plaintiff in the instant suit he seeks to join as the said Appellant’s interest in the subject matter of litigation is not only in conflict with that of the existing Plaintiff therein, but also as the Appellant is not a necessary party whose presence is crucial for the effectual and complete determination of the suit (though not on the basis of lis pendens). Appeal is accordingly dismissed and the Ruling of the lower court delivered on 13/4/2005 affirmed.
MOHAMMED L. TSAMIYA, J.C.A.: I had the privilege of reading in draft the lead judgment prepared by my learned brother. LOKULO-SODIPE, JCA. The facts of the case and all the issues raised in this appeal are fully set out and examined therein. I therefore agree with the conclusion reached in the lead judgment that the appeal should be dismissed. I also dismissed the appeal, and the ruling of the lower court delivered on 13/4/2995 is here affirmed.
JUMMAI HANNATU SANKEY, J.C.A: I agree.
Appearances
C.A. NwokikeFor Appellant
AND
E.O. Maduka
B.C. UzuegbuFor Respondent
