ALHAJI IBRAHIM TAIWO AJOMAGBERIN & ORS v. RAHEEM AREGBE & ORS
(2013)LCN/6547(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of November, 2013
CA/L/52/2008
RATIO
WHETHER A PARTY SEEKING TO BE JOINED IN AN APPEAL MUST DISCLOSE AN INTEREST IN THE MATTER
A party seeking to be joined in an appeal must disclose an interest which is justifiable in the cause of action. It is therefore not enough that the party entertains some fears that he might be likely affected by the decision in the appeal. – BALA V. DIKKO (2013) 4 NWLR PT.1343. PAGE 52 @ 62; YAKUBU V. GOVERNOR, KOGI STATE (1995) 8 NWLR PT.414, 385 AT 407. Per RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
ALHAJI IBRAHIM TAIWO AJOMAGBERIN & 2 ORS (for themselves and for on behalf of Deyari, Kueji and Kumuyi Ruling Houses of Obanikoro Chieftaincy Family) Appellant(s)
AND
1. RAHEEM AREGBE
2. KAYODE AREGBE
3. OLUWOLE AJAYI-BEMBE
4. ALHAJA ESUOLA AKEJU (Suing as accredited Representatives Kueji/Ilumo Branch of Obanikoro Chieftaincy Family)
5. ATTORNEY GENERAL LAGOS STATE
6. MINISTRY OF LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Honourable Justice (Mrs) D.F. Akinsanya delivered on the 12th of September 2003 sitting at the High Court No. 2 Lagos, in Suit No. LD/1228/2000. Pages 48 – 55 of the Record of Appeal.
By writ of Summons dated 20th of April 2000, and paragraph 7 of the Statement of Claim dated 10th April 2000, the Respondents, (as Plaintiffs in the lower Court) claimed the following reliefs viz:
“The nullification of the decision of the Defendants to reject the report of a fully conducted Tribunal by expanding the Two RULING HOUSES formed by it (DEYARI/OYEROKUN and KUEJI/ILUMO) to four RULING HOUSES OF DEYARI, KUEJI, KUMUYI AND ILUMO without calling any new evidence.”
And
N500,000.00 general damages for the Wrongful expansion of the same Ruling Houses. Pages 1 – 6 of the Record of Appeal.
Parties filed and exchanged their pleadings, and before the case could proceed to hearing, the Appellants brought a Motion on Notice filed on the 14th of March 2001, praying for the leave of Court to be joined. In response thereto 1st – 4th Respondents filed a Counter affidavit on 15th of March 2001 with four exhibits attached.
According to the Appellants, they did not know about the pending Suit but when they knew, they as APPLICANTS/INTERVENERS brought a motion on notice dated 12th of March 2001, but filed on the 14th of March 2001, praying Court for the following:
1. An order of LEAVE for Court permitting the Interveners/Applicants namely
IBRAHIM TAIWO AJOMAGBERIN ZAKARIYAH OYEROKUN OJORA MUSIBAU KOPADA.
to be JOINED and in a representative capacity for themselves and for and on behalf of the Deyari, Kueji and Kumuyi Ruling Houses of the Obanikoro Chieftaincy Family as the 3rd, 4th and 5th Defendants respectively in this Suit.
ii. An order consequent upon prayer (1) alone directing all processes issued in this Suit to be served on the Defendants sought to be joined.
iii. Such further or other orders as this Honourable Court may deem fit to make in the circumstances.
The application, and Counter affidavit in opposition thereto were filed. The Appellants/Interveners grouse was that they are blood members of Obanikoro Chieftaincy Family belonging to Kueji, Deyari and Kumuyi Ruling Houses respectively.
In 1978, Lagos State Government set up a Commission of Inquiry into Obanikoro Chieftaincy Declaration. At the hearing, fifteen (15) witnesses testified and forty nine (49) Exhibits were tendered.
The 1st, 2nd, and uncle of the 3rd Interveners testified as the 9th, 12th and 13th witnesses at the Inquiry and submitted Exhibits in support of their testimony.
At the conclusion of the Inquiry, the Lagos State Government a White Paper, as a result of which a Chieftaincy declaration was made, signed into law and was duly Registered on the 5th day of October, 1990.
The Registered Declaration, indentified and recognized four (4) Ruling Houses. They are DEYARI, KUEJI, KUMUYI and ILUMO. The order of rotation for selection and installation of Chiefs in the Obanikoro Chieftaincy family was in that order.
The Obanikoro family Wielded this Registered Declaration for the first time, when Chief Sikiru Oyebowale Oyerokun Ojora was installed as a candidate from Deyari Ruling House. This candidate is the biological father of the 2nd Appellant and he ruled from 1991 – 1998.
Upon his death, a vacancy occurred and from the order of rotation stated in the 1990 Registered Declaration, it is now the turn of the KUEJI Ruling House to nominate a candidate to fill the vacant stool. It is the case of the Appellants that since the parents/privies of the 1st – 4th Respondents were parties to the making of the Registered Declaration in 1990, they are now estopped from changing or making any move to change the Registered Declaration. This is because they were desperate to install a candidate from ILUMO Ruling House and this is contrary to the provisions of the 1990 Registered Declaration.
The 5th – 6th Respondents had averred in their Statement of Defence, to the claims of the 1st – 4th Respondents at the lower Court and agreed to the existence of the Registered Declaration, but only to the extent that there are four (4) Ruling Houses. That the decision was in accordance with the provisions of the Obas and Chiefs of Lagos State Laws, which entitled the State Government to set aside the decision of the Tribunal set up by it.
This informed the Appellants bringing an application before the lower Court to be joined as the 3rd, 4th and 5th Defendants, to enable the learned trial Judge to effectively resolve the issues in controversy between the Appellants and the Respondents. After considering the application, the learned trial Judge in a considered Ruling on the 12th of September 2003, refused the application and dismissed same – Pages 34 – 55 of the Record of Appeal.
The Appellants, dissatisfied with the Ruling has appeared same. Pursuant to the Practice Direction of this Honourable Court, the Appellants filed a Notice of Appeal on the 24th of September 2003 with four (4) Grounds of Appeal – pages 57 – 59 of the Record of Appeal.
The Appellants filed their brief of argument on the 7th of September 2009, but same was deemed filed on the 17th of February 2011. It is settled by Olusegun Fabunmi Esq. The 1st – 4th Respondents filed their brief of Argument on the 29th of October 2009. It is settled by H. Okey Igbokwe Esq.,
The 5th and 6th Respondents filed no brief of argument.
In their brief of Argument, the 1st – 4th Appellants proffered just one sole issue for determination, which they argue arise from the four (4) Grounds of Appeal.
It is:
“Whether from the copious affidavit evidence before the lower Court, the learned trial Judge ought to have joined the Appellants as 3rd, 4th and 5th Defendants to the suit having held that as interveners they are necessary parties to the suit”.
On their part, the 1st – 4th Respondents had proffered two (2) issues for determination. They are
i. Whether the learned trial Judge gave full consideration of all materials facts and evidence before the lower Court in arriving at her decision.
ii. Whether it was necessary to join the Appellants as Defendants since there was no claim against them.
A cursory look at the issues for determination of the Appellants and Respondents, show that they flow from the Ground of Appeal. Indeed the issues for determination of the 1st – 4th Respondents are an adoption of the sole issue for determination proffered by the Appellants.
The fulcrum of the Appellants appeal is the issue of JOINDER. In other words, whether the learned trial Judge ought to have joined the Appellants as 3rd, 4th and 5th Defendants to the Suit in the lower Court, having held that as interveners, they are necessary parties to the suit. I shall determine this appeal on this issue.
On the 7th of November 2013, the parties adopted their respective briefs of argument while the Appellants urged this Honourable Court to allow the appeal, the 1st – 4th Respondents urged this Honourable Court to dismiss the Appeal.
The Appellants had argued that the learned trial Judge did not consider the affidavit evidence of the Appellants, in the area of the issue of presenting a candidate for the vacant stool of the Obanikoro of Lagos. That they had discovered the existence of the suit in the lower Court when the case was slated for hearing on the same date as their other matter. This made them file the motion on Notice on the 12th of March 2001.
The Appellants submit that from the affidavit evidence before the Court below, Exhibit “B” which is the “Declaration” was jointly made by parents, or uncle, or representatives or proxies/privies of the present Appellants and the 1st – 4th Respondents and the 5th – 6th Respondents.
Therefore, he argues if Exhibit “B” must undergo any review or change whether rightly or wrongly, the process must be seen to be, or must indeed involve, or be approved by all concerned.
He submits that the copies of the Registered Declaration were forwarded to all Heads of the four (4) Ruling Houses- Deyari, Kueji, Kumuyi and Ilumo. That the father of the 2nd Appellant was not only a witness at the tribunal of Inquiry that culminated in the making of the Declaration, he was also the first Chief Obanikoro to be installed through the instrumentality of the Registered Declaration. He argues that all these clothes the Appellants with sufficient interest in the “RES” of this case.
He submits that since the privies of the present Appellants were parties to the making of Exhibit “B”, the Registered Declaration, they ought to have been joined as parties, were there to be a review of it rightly or wrongly. That any review, or re-appraisal, and or alteration of Exhibit “B”, the Registered Declaration must necessarily involve all the parties, representatives or privies to its making. That to shut out the Appellants would be wrong and prejudicial to their interests.
On the part of the Respondents, their argument is that the learned trial Judge had appraised the affidavit evidence sufficiently, before coming to the conclusion as she did; that the Applicants are not necessary parties. That once it is ascertained that there was proper evaluation, as in the instant case, the Appellate Courts do not make a habit of interfering – Citing BATURE V. STATE (1994) 1 NWLR PT. 320, 267; ADAJE V STATE (1976) 6-9 SC. 18; OSUIGWE V. NWIHIM (1995) 3 NWLR PART 386 PAGE 752 @ 763.
He submits that the claim, as reflected in the Writ of Summons at the lower Court, was for a nullification of the decision of the Defendants (5th and 6th Respondents in this Appeal) to reject the Report of a fully conducted commission of Inquiry headed by a High court Judge J.O. Kassim Rtd. in 1978.
The Commission of Inquiry having concluded and recommended two Ruling Houses for the Obanikoro Chieftaincy stool in Lagos thus:
i. DEYARI/OYEROKUN Ruling House
ii. KUEJI/ILUMO Ruling House
the Defendants (5th and 6th Respondents in this appeal) however published a Written rejection of the Report of the Commission of Inquiry. The Writ of Summons filed at the lower Court sought a nullification of the rejection.
He submits that the learned trial Judge was right in refusing to join the Appellants as interveners. That the learned trial Judge had reasoned that “any case must be resolved on its peculiar facts and circumstances”
He submits that the Plaintiffs have no claim against the Interveners/Appellants. That the learned trial Judge was right when he held inter alia that
“The claim before the Court is not one on which the Applicant can find any answer as the action ties with the Government”
That the rejection of the decision of the Commission of Inquiry was made by the 5th and 6th Respondents and not the Interveners/Appellants. Therefore, he argues, any remedy sought would be required from the 5th and 6th Respondents.
He submits that it is possible for the trial Court to adjudicate upon the case in the Court below without the Interveners/Appellants. He further submits that the Court was right in holding that it is not necessary to join the Interveners/Appellants as Defendants.
In considering this appeal viz -a viz the submission of the parties, certain facts must be acknowledged.
First and foremost by writ of summons dated 10th of April 2000, the Plaintiffs (Respondents in this appeal) claim against the 5th and 6th Respondents. The Appellants Applicants were not sued – pages 1 – 4 of the Record of Appeal.
Second of all, there was a Declaration made in 1989 titled DECLARATION MADE UNDER CUSTOMARY LAW REGULATING SELECTION – THE OBANIKORO CHIEFTAINCY IN LAGOS ISLAND LOCAL GOVERNMENT AREA OF LAGOS STATE. – Pages 18-19 of the Record of Appeal. This Declaration touched on the Ruling Houses. In its Paragraph 1 – He states that there are four Ruling Houses – DEYARI, KUEJI, KUMUYI and ILUMO Ruling Houses.
Third of all, by letter dated 26th of January 2000, the Obanikoro Chieftaincy Family had before the suit was instituted in April 2000, appointed the 1st-4th Respondents namely Mr. Raheem Aregbe, Mr. Kayode Aregbe, Mr. Oluwole Ajayi- Bembe and Alhaja Esuola Akeju as the accredited Representatives of the Kueji/Ilumo Branch of the Obanikoro Chieftaincy Family in respect of the law suit, challenging the findings of the Lagos State Government as to the number of Branches in the Obanikoro Chieftaincy Family.
The Appellants refer to themselves as for and on behalf of Deyari, Kueji and Kumuyi Ruling House of the Obanikoro Chieftaincy Family.
The Relief sought is the nullification of the decision of Government to reject the report of the Tribunal.
The Question now arises – Is it necessary to join the Appellants?
Decidedly, in considering whether a joinder need be ordered, the Court should take the following into consideration.
They are:
i. Is the cause or matter liable to be defeated by the non-joinder?
ii Is it possible for the Court to adjudicate on the cause of action set up by the Plaintiff unless the third party is added as Defendant?
iii. Is the third party a person who ought to have been joined as a Defendant?
iv. Is the third party a person whose presence will be necessary in order to enable the Court to effectually and completely adjudicate on and settle all question involved in the cause or matter?
SANUSI V. MAKINDE (1994) 5 NWLR PART 343. PAGE 214 @ 232 (Paragraph f).
It is apparent that the claim in the lower Court is one against the Government, and the Appellants can find no answer to the Plaintiffs claim.
The Rejection of the decision of the Commission of Inquiry was made by the Defendants (i.e the 5th and 6th Respondents), and not the Appellants/Interveners.
The Remedy sought would be therefore from the 5th and 6th Respondents and not the Appellants/Interveners.
The Relief sought at the lower Court is a peculiar relief, and the circumstances surrounding same, peculiar.
I am of the view that the learned trial Judge was right in refusing to join the Appellants/Interveners. This is because, their non-joinder would not defeat the cause or matter.
It is in my view possible, for the trial Court to adjudicate on the matter without the Appellants/Interveners. The 1st-4th Respondents were authorized to prosecute the suit at the lower Court on behalf of the Obanikoro Chieftaincy Family.
I am further of the view that the Appellants/Interveners are not necessary parties to the suit, and their presence is not necessary for the effectual adjudication and settlement of the matter.
To join them would enable multiplicity of actions and cause confusion. This is highly depreciated by the Courts.
A party seeking to be joined in an appeal must disclose an interest which is justifiable in the cause of action. It is therefore not enough that the party entertains some fears that he might be likely affected by the decision in the appeal. – BALA V. DIKKO (2013) 4 NWLR PT.1343. PAGE 52 @ 62; YAKUBU V. GOVERNOR, KOGI STATE (1995) 8 NWLR PT.414, 385 AT 407.
The case of BALA (supra) has to do with primaries in an election, but in that case the Applicant did not participate in the said primary. Ipso facto, the Appellants/Interveners were never sued by the Plaintiffs in the Court below. It is the prerogative of a Plaintiff as to whom to sue. And this he can do, except the Court deem it fit to join a party, which it can do even suo motu, for the effectual determination of the case.
The claim of the Plaintiff in the lower Court is just for the nullification of the decision of the Defendants to reject the Report of a fully conducted Tribunal, and damages. This smacks of a matter with peculiar features different from the usual, and the learned trial judge is right when she said in her Ruling that any cause must be resolved on its peculiar facts and circumstances – Page 53 of the Record of Appeal.
The result is that the sole issue is resolved in favour of the Respondents and against the Appellants.
The Appeal fails and same is hereby dismissed. The case is hereby remitted to the Chief Judge of Lagos State for assignment to a Judge of the Lagos State High Court for determination on its merits and the Ruling of Hon. Justice D.F. Akinsanya of the Lagos State High Court, Lagos Judicial Division delivered on the 12th of September 2003 in Suit No. ID/1228/2000 is hereby affirmed.
No order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of perusing in advance the succinct judgment prepared by my learned brother, Rita Nosakhare Pemu, J.C.A., in which I fully concur and adopt as my judgment with this little addition, by way of emphasis.
An intervener is no more than a person who voluntarily seeks to and/or enters a pending lawsuit as a third party because of his personal stake or justiciable interest in the action (Black’s Law Dictionary, Eighth Edition, 840). The court below held aright, in my respectful opinion, that “the claim before the court is not one on which the Applicant can find any answer as the action lies with the Government (5th and 6th Respondents). Already the Declaration as it stands is in favour of the Applicant and the Defence filed has taken care of the interest of the Applicant”. (See page 54 of the record of appeal).
It is clear in the portion of the Ruling copied above that there is no complaint against the appellants in the suit and on that basis the appellants cannot be necessary parties in the suit at the court below. Parties are not added to a suit just to increase or swell up the number. Parties are joined in an action based on their indispensability to the action. If their presence in the action is necessary for the proper, complete and effectual determination of the action then they can be joined as parties to the action. The court does not, except in rare and exceptional cases which is not the case here, also, foist on a plaintiff a defendant he does not desire to prosecute or litigate against. See Ige and Ors. v. Farinde and Ors. (1994) 7 NWLR (Pt.354) 42 at 66 per the lead judgment of Iguh, J.S.C., (as he was) thus-
“It may therefore be stated that a key test for the joinder of an intervener whether as a plaintiff or a defendant is whether he will be directly affected by the judgment of the court in the suit by curtailing or interfering with the enjoyment of his legal rights. This is because 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 effectually and completely settled unless he is a party. See Amon v. Raphael Tuck & Sons Limited supra at 287.
It must however be pointed out that the law appears also settled that the courts will not generally compel a plaintiff to proceed against a party he has no desire to prosecute. See Aromire v. Awoyemi (1972) 1 All NLR (Part 1) 101 at 108 (1972) 2 S.C. 1 and Dollfus Miegete Compaquene S.A. v. Bank of England (1950) 2 All E.R. 605 at 608”.
See also In Re Mogaji (1986) 1 NWLR (Pt.19) 597.
The appellants do not, therefore, fall within the compass of indispensable parties to the action pending at the court below. For these reasons and for the measured reasons contained in the lead judgment, I too see no substance in the appeal and hereby dismiss it and abide by the consequential orders in the lead judgment.
TIJJANI ABUBAKAR, J.C.A.: My learned brother Pemu, JCA granted me the privilege to read in draft the lead Judgment just delivered, the reasoning and conclusion are adopted by me.
I may just add, that in BELLO V. INEC (2010) 8 NWLR (PART 1196) 342 S.C: the Supreme Court of Nigeria stated that the purpose of joinder under various rules of court is to allow the Plaintiff proceed in the same action against all Defendants where he thinks or conceives he has a claim against them. The person to be joined must be someone whose presence is necessary as a party, and the only reason which makes him necessary is that he should be bound by the result of the action which cannot be settled unless he is a party.
On the factors to consider the Supreme Court set out the questions which the court must consider before joining a party.
Adekeye JSC said:
“In determining whether to join a person as a Defendant in a suit, the court will consider the following questions that is, (a) Is it possible for the court to adjudicate upon the cause of action set up by the Plaintiff unless the person is added as a defendant. (b) Is the person someone who ought to have been joined as a defendant in the first instance. (c) Is the cause or matter, liable to be defeated for non joinder. These questions must be answered in the affirmative for the joinder to be justifiable.
I also agree that the claim being against the Government, Appellants are unlikely to profer answer to Plaintiffs claims, and at all times Plaintiff must be allowed to design his suit against persons he conceives he has some reliefs to claim.
I also resolve the sole issue in favour of the Respondents against the Appellants. There is therefore no merit in the appeal it is accordingly dismissed, ruling delivered by Akinsanya J. 12th September 2003 in suit No. ID 1228/2000 is affirmed.
There is no order as to costs.
Appearances
O. Fabunmi Esq., with him were O. Onamade Esq., and R. Oguntade Esq.For Appellant
AND
Mrs. Olufunso Oladiji Esq.For Respondent
