MR. FRANCIS IZU & ORS v. HIS HIGHNESS, MARCUS ODILI IKEH & ORS (2019)

MR. FRANCIS IZU & ORS v. HIS HIGHNESS, MARCUS ODILI IKEH & ORS

(2019)LCN/13384(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of May, 2019

CA/B/243/2018

RATIO

PARTIES AND COURTS ARE BOUND BY RECORDS OF APPEAL

The law is that once the record of appeal, and this includes any additional record of appeal, has been compiled and transmitted to the Court of Appeal, the Court and parties are bound by the record before it. In the case of Veepee Industries Limited v. Cocoa Industries Limited (2008) 13 NWLR (Pt. 1105) 486 at 512, per Ibrahim Tanko Muhammad, JSC (as he then was, now Ag. CJN) the Supreme Court pointedly held that: –
It is the law that a Court of law has no right to act outside the four walls of the record of appeal placed before it.
See also Funduk Engineering Ltd. v. James McArthur & Ors. (1995) 4 NWLR (Pt. 392) 640.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

PARTIES: NECESSARY PARTY: DEFINITION

A necessary party has been defined as a person so closely connected to a lawsuit that, even though his absence from the lawsuit will not result in a dismissal of the proceedings, he should be made a party to the lawsuit, if feasible. See Ibegwura O. Azubuike v. Peoples Democratic Party (2014) 7 NWLR (Pt. 1406) 292 and National Film & Video Censors Board & Anor. v. Akinola Adegboyega & Ors. (2019) 4 NWLR (Pt. 1662) 283 at 307, per Ariwoola, JSC.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

WHETHER A PARTY WILL BE BOUND BY A MATTER HE DIDNT INTERVENE IN DESPITE IT AFFECTING HIS INTEREST
The law, as settled by the decisions of the apex Court, is that where a party omits to intervene in a pending lawsuit affecting his interest, he would be bound by the outcome of the action, although he was not a party thereto. This is a principle of law encapsulated in the doctrine of estoppel by standing-by, which is a species of estoppel by conduct. See Alashe v. Olori Ilu (1964) 1 All NLR 390; Iga v. Amakiri (1976) 11 SC 1; Obodo v. Ogba (1987) 2 NWLR (Pt. 54) 1 and Onyia Nwagwu Ngwu & Ors. v. Ugwu Onuigbo & Ors. (1999) 13 NWLR (Pt. 636) 512.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

A RELIEF CANNOT BE SOUGHT ON BEHALF OF A PERSON WHO IS NOT A PARTY TO A SUIT
Similarly, it is also the law that a relief sought on behalf of a person who is not a party to a suit is incompetent and should be struck out. See Victor Manyo Ndoma-Egba v. Nnameka Chikwukelou Chukwuogor (2004) 6 NWLR (Pt. 869) 382.PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

WHAT ORDER CAN A COURT MAKE WHEN RELIEF IS SOUGHT FOR A PERSON WHO IS NOT A PARTY TO A SUIT
The reason is that where, in a lawsuit, the interest of a party not before the Court is challenged or raised, with respect to the matter in dispute, the order that the Court can make, in the interest of justice, is an order of non-suit. See Onibudo v. Akibu (1982) All NLR 207 and Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

1. MR. FRANCIS IZU
2. MR. CHARLES OGWAZOR
3. MR. ANTHONY OKWUAGWU
4. MR. EMMANUEL KOKONUM
(For themselves and on behalf Of the Beneku Community in Ndokwa East Local Govt. Area of Delta State) Appellant(s)

AND

1. HIS HIGHNESS, MARCUS ODILI IKEH (Okpala-Uku of Umusadege-Ogbe Community of Utagba-Ogbe, Kwale, Ndokwa West Local Govt. Area of Delta State).
2. CHIEF ODINI EJECHI
3. CHIEF VINCENT AKPE
4. CHIEF GODWIN OSSAI UZOKA
(For themselves and on behalf of Umusadege- Ogbe Community of Utagba-Ogbe, Kwale, Ndokwa West Local Govt. Area of Delta State).
5. INDEPENDENT NATIONAL ELECTORAL COMMISSION
6. DELTA STATE INDEPENDENT NATIONAL ELECTORAL COMMISSION
7. NATIONAL BOUNDARY COMMISSION Respondent(s)

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The 1st -4th respondents in this appeal, are the plaintiffs in Suit No. FHC/ASB/CS/57/2014 instituted in the Federal High Court, Asaba Judicial Division, holden at Asaba. The 5th, 6th and 7th respondents are the defendants in the said suit where the 1st ? 4th respondents have asked the trial Court to determine the following questions in their originating summons:-
1. Whether, having regard to (1) the consolidated Terms of Settlement in Consolidated Suits No. UHC/43/1971: Chief Paul Otuya v. Nigeria Agip Oil Co. Ltd.: UHC/50/71: Chief Vincent Olie v. Chief Paul Otuya & 2 Ors and UHC/70/71: Chief Paul Otuya v. Nigeria Agip Oil Co. Ltd. & Anor. dated the 29th October, 1972, coram R.A.I. Ogbobine J; (2) the judgment in Suit No. HCK/26/76: Chief Ugbeh Okwuagu & Anor. v. Chief Vincent Olie & 2 Ors. dated the 17th of July 1981, coram J.O. Idahosa J. which held that Beneku family of Beneku (also known as Obiogo) is a part and parcel of Umusadege Community of Kwale (also known as Utagba-Ogbe) the Headquarter of Ndokwa West Local Government

Area of Delta State, (3) the Court of Appeal judgment in Appeal No. CA/B/148/82: Chief Ugbeh Okwuagu & Anor. v. Chief Vincent Olie & 2 Ors., upholding the judgment in Suit No. HCK/26/76, dated 2nd December 1986 and (4) the States Creation and Transitional Provisions (No. 2) Decree No. 41 of 1991 (Schedule to S.2 thereto, S.3(2) (a) of the National Electoral Commission Act, Cap. 225 (1990) empowered the Commission to unilaterally adjust the boundaries of the Ndokwa-West Local Government Area, by excising Beneku, also known as Obiogo from Umusadege Community of Kwale, the Headquarters of the Ndokwa- West Local Government Area and transferring same to Okpai/Utchi (Code Area No. LG/112/DL), comprising Utchi/Okpai/Beneku Clan.
2. Whether the adjustment of the boundaries of the Ndokwa West Local Government Area as contained in the National Electoral Commission (Local Government) Delimitation of Electoral Wards) Notice 1992 Okpai/Utchi Electoral Ward Code Area No. LG/112/DL in the Ndokwa-East Local Government Area is not ultra vires, unlawful, null and void.
3. Whether the judgments of the High Court of justice, Ughelli and Kwale and the Court of

Appeal judgment referred to ante and the State Creation and Transitional Provision (No. 2) Decree No. 41 of 1991, the National Electoral Commission (Local Government) (Delimitation of Electoral Wards) Notice of 1992 and S. 3(2) (a) of the National Electoral Act. Cap 225 Laws of the Federation empowered the 1st defendant to adjust of the boundaries of the Ndokwa-West Local Government Area, by excising Beneku from Umusadege Community of Utagba-Ogbe (Kwale) and transferring same to the Okpai/Utchi Electoral Ward Code Area No. LG/112/DL in the Ndokwa-East Local Government Area.?

The relief sought in the suit is as follows: –
1. A declaration that Beneku (also known as Obiogo) is one of the seven families which comprise Umusadege Community of Kwale (also known as Utagba-Ogbe), Headquarters of the Ndokwa-West Local Government Area.
2. A declaration that the Independent National Electoral Commission has no powers to unilaterally adjust the boundaries of the Ndokwa-West Local Government Area and the Ndokwa-East Local government Area, by excising Beneku (also known as Obiogo) from the Umusadege Community of Kwale, (also known as

Utagba-Ogbe), Headquarters of the Ndokwa-West Local Government Area and merging same with Okpai/Utchi to constitute the Okpai/Utchi Electoral Ward of the Ndokwa East Local Government Area (Code No. LG/112/DL) comprising Okpai/Utchi Beneku Clan.
3. An Order setting aside paragraph Code No. LG/112/DL of the National Electoral Commission (Local Government) (Delimitation of Electoral Wards) Notice 1992.
4. An Order restraining the 1st and 2nd defendants from conducting any election in which Beneku (also known as Obiogo) is treated as a part of the Okpai/Utchi Electoral Ward (Code LG/112/DL) of the Ndokwa-East Local Government Area.
5. An Order nullifying any election conducted by the 1st and 2nd defendants in which Beneku (also known as Obiogo) is treated as a part of the Okpai/Utchi Electoral Ward (Code LG/112/DL) of the Ndokwa-East Local Government Area.?

On the 12th day of November, 2014, the appellants filed a motion on notice, in the trial Court, wherein they sought to be joined as co-defendants. The said motion was opposed by the 1st ? 4th respondents and, after hearing the parties, the trial Court delivered a ruling on the 2nd

day of July, 2015 whereby it refused the application. This appeal is against the said decision.

The appellants filed their brief on 14/06/2018 and they therein raised the following issues for determination:-
1. Did the trial Court err in law by refusing to join the appellants who have an interest in the issues and subject matter of the suit, and will be bound by the result of the litigation, which will remove them from Ndokwa-East Local Government Area where they have belonged to, for over twenty years, despite the fact that they are members of an autonomous community with their own Okpala-Uku (Traditional Ruler) and their well entrenched system of Local Administration not tied to the 1st to 4th respondents of Umusadege, and that they are located in Ndokwa-East Local Government away from the 1st to 4th respondents. (Formulated from grounds I and II).
2. Was the lower Court right by stating that the 1st to 4th respondents have no claim against the appellants despite the fact that the CLAIM AGAINST the appellants form the basis of the reliefs sought at the trial Court, so they have an interest in the case should be joined as a party since

they have an interest and will be bound by the result of the case assuming but without conceding that no claim or relief is sought against them. (Formulated from grounds 3 and 4).

On behalf of the 1st 4th respondents, a brief was filed on 29/06/2018 whereby they distilled two issues for determination thus: –
3.1. Whether in the face of the judgments and Documents sought to be interpreted at the lower Court by the 1st – 4th respondents Community, the 1st – 4th appellants are members of autonomous community and have interest different and distinct from that of the 1st ? 4th respondents? Community, Umusadege-Ogbe, Kwale, in Ndokwa-West Local Government Area of Delta State, to be joined as parties in this suit.
3.2. Whether the 1st 4th respondents herein have claim against the 1st ? 4th appellants at the lower Court to warrant them being joined as parties when they are but one of the seven (7) constituent families that make up the 1st 4th respondents? Community, Umusadege- Ogbe, Utagba-Ogbe, Kwale, in Ndokwa-West Local Government Area of Delta State.

The 7th respondent filed its brief on 04/03/2019 wherein a sole issue has been identified for determination: –
In view of the refusal of the joinder application by the lower Court, have the appellants been denied fair hearing.

PRELIMINARY OBJECTION
Let me put it on record that the appellants filed a notice of preliminary objection on 02/08/2018 seeking the following relief: –
AN ORDER that the documents attached to the 1st to 4th respondents? brief of argument at the back thereof being photocopy of judgment in Suit No. 7 of 1933 and Suit No. HCO/63/2007 respectively, shall be struck out, since they do not form part of the Record of Appeal in the Appeal No. CA/B/243/2018, but merely attached to the respondents? brief of argument.?

The appellants based their prayer on the following grounds:-
1. The photocopies of respective judgments in Suit No. 7 of 1933 IKUNI VS OMOLU and Suit No. HCO/63/2007 OPENE & OTHERS VS. OLOKU ONA & OTHERS which were attached to the back of the 1st to 4th respondents? brief of argument should be struck out.
2. They do not form part of the record

of appeal in this appeal, so it is an anathema to attach such strange document or any document(s) whatsoever, to a brief of argument.
3. A Court of law has no right to act outside the four walls of the record of appeal placed before it, as was decided by the Supreme Court in VEEPEE INDUSTRIES LTD. VS. COCOA INDUSTRIES LTD. (2008) 13 NWLR PART 1105 PG. 486 at 512 E F.

It is true that learned counsel attached copies of alleged judgments in Suit No. 7 of 1933 and Suit No. HCO/63/2007 as annexures to the 1st 4th respondents? brief.

The law is that the Court of appeal becomes seised of an appeal when the appeal is entered. And an appeal is entered from the date the record of appeal is transmitted to the Court of Appeal. See Ogwuche v. Mba (1994) 4 NWLR (pt. 336) 75 and Leaders and Company Ltd. v. Kusamotu (2008) All FWLR (Pt. 405) 1800.

The primary duty of transmitting the record of appeal is that of the registrar of the Court below the Court of Appeal. Where, however, the registrar of the Court below fails in his duty, to compile and transmit the record of appeal within 60 days after the filing of the notice of

appeal, it becomes mandatory for the appellant to compile and transmit the record within 30 days after the failure or neglect of the registrar of the Court below. See Order 8 Rules 1 and 4 of the Court of Appeal Rules, 2016. Where there is need for any of the parties to compile and transmit additional record of appeal, that party must do so ?within 15 days of the service on him of the records? ? Order 8 Rule 6 of the Court of Appeal Rules, 2016.

The method employed by the 1st ? 4th

respondents in bringing the so-called judgment to the attention of this Court is strange and it is not supported by the Rules of this Court or any law.
The appellants? objection has merit and it is hereby upheld as prayed.

SUBSTANTIVE APPEAL
From the issues identified by the parties, the live issue for determination in this appeal is: –
Whether or not the trial Court rightly refused to grant the appellants? application to be joined as co-defendants in Suit No. FHC/ASB/CS/57/2014.

Learned Senior counsel for the appellants submitted that the relief sought by the 1st ? 4th respondents in their suit ?is all about the appellants? and the appellants, ?being persons who will be affected and bound by the decision? of the trial Court in the 1st ? 4th respondents? suit, ?ought to be made parties to the action.? He argued further that ?the appellants who complaints have been made against are necessary parties? and that their application for joinder ought to have been granted. In support of these submissions, learned senior counsel for the appellants referred the Court

to and relied on the cases of Awoniyi v. Registered Trustees of AMORC (2000) 10 NWLR (Pt. 676) 522; Ajayi v. Jolayemi (2001) 10 NWLR (Pt. 722) 516 and Inyang v. Ebong (2002) 2 NWLR (Pt. 751) 284.

In response, learned counsel for the 1st ? 4th respondents referred to the judgments in about 6 (six) cases allegedly already adjudicated upon and decided between the 1st-4th appellants and the 1st ? 4th respondents herein ..both at various High Court of Justices and this Court of Appeal, still subsisting and binding on both parties. It was contended that the appellants are estopped from claiming to be autonomous community in the face of the subsisting and binding judgments which already determined their status vis–vis that of the 1st-4th respondents community (Umusadege-Ogbe) herein. In support of their argument on estoppel, learned counsel for the 1st – 4th respondents referred to the cases of Madam Abusatu Agbogunleri v. John Depo (2008) 2 MJSC 70 and O.N.L. v. Dyktrade Ltd. (2007) 12 MJSC 115.

I have read the ruling of the trial Court, which the appellants have

appealed against. The said Ruling covers pages 596 to 603 of the record of appeal. I have also read the appellants application for joinder and the affidavit and written address in support thereof. In addition, I have read the 1st-4th respondents counter affidavit and their written address filed in the trial Court. Since some of the issues raised in this appeal may be live issues for determination by the lower Court, I shall endeavour to be brief in my judgment.

The argument of the 1st -4th respondents that the relief sought in their present suit has been adjudicated in the 6 (six) judgments allegedly delivered by various High Courts and this Court is irrelevant, because that was not the basis for the refusal by the trial Court of the appellants? application for joinder. In any case, by their counter affidavit, which spans pages 132 to 137 of the record of appeal, the 1st ? 4th respondents did not tender copies of the alleged 6 (six) judgments as exhibits and this Court cannot speculate on their contents. It is trite law that a Court of law does not indulge itself in any form of speculation, which is a mere product

of curious guesswork. See Overseas Construction Co. Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407; African Continental Bank PLC v. Emostrade Limited (2002) 8 NWLR (Pt. 770) 501; Ikenta Best (Nig.) Ltd. v. A.G, Rivers State (2008) 8 NWLR (Pt. 1084) 612 and Olabisi Olakunle v. The State (2016) 6 NWLR (Pt. 1614) 91.

Earlier in this judgment, I reproduced the relief sought by the 1st-4th respondents in their suit in the trial Court. The 1st-4th respondents first and second prayers, respectively, are to declare that the appellants community Beneku (also known as Obiogo) is one of the seven families which comprise Umusadege Community of Kwale (also known as Utagba-Ogbe), Headquarters of Ndokwa-West Local Government Area and that the 5th respondent (Independent National Electoral Commission) has no power to unilaterally adjust the boundaries of Ndokwa-West Local Government Area by constituting the appellants? community as a ward in Ndokwa-East Local Government Area. The 1st-4th respondents then proceeded to pray for orders setting aside any delineation of wards by the 5th

respondent, whereby the appellants? community is a ward or forms a part of Ndokwa-East Local Government Area.

The 1st-4th respondents relief, referred to above, directly affects the appellants? rights ? either to be in Ndokwa-West Local Government Area or Ndokwa-East Local Government Area of Delta State. The 1st ? 4th respondents? claim, in their suit in the trial Court, is directly against the appellants and the appellants are necessary parties, whose presence is significant and compulsory, for the effective and effectual determination of the 1st ? 4th respondents? suit.

where a party omits to intervene in a pending lawsuit affecting his interest, he would be bound by the outcome of the action, although he was not a party thereto. This is a principle of law encapsulated in the doctrine of estoppel by standing-by, which is a species of estoppel by conduct. See Alashe v. Olori Ilu (1964) 1 All NLR 390; Iga v. Amakiri (1976) 11 SC 1; Obodo v. Ogba (1987) 2 NWLR (Pt. 54) 1 and Onyia Nwagwu Ngwu & Ors. v. Ugwu Onuigbo & Ors. (1999) 13 NWLR (Pt. 636) 512.
As stated earlier, the 1st- 4th respondents claim, in their pending action, is directed at affecting and binding the appellants. The law is that a Court has no power to make an order which binds non-parties to the case before it. See Charles Chinwendu Odedo v. Independent National Electoral Commission (2008) 17 NWLR (Pt. 1117) 554.
Similarly, it is also the law that a relief sought on behalf of a person who is not a party to a suit is incompetent and should be struck out. See Victor Manyo Ndoma-Egba v. Nnameka Chikwukelou Chukwuogor (2004) 6 NWLR (Pt. 869) 382.
Another angle to the matter is that it is even in the interest of the 1st -4th

respondents for the appellants to be joined as parties to their lawsuit. The reason is that where, in a lawsuit, the interest of a party not before the Court is challenged or raised, with respect to the matter in dispute, the order that the Court can make, in the interest of justice, is an order of non-suit. See Onibudo v. Akibu (1982) All NLR 207 and Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208. What will the 1st -4th respondents gain if the trial Court eventually discovers that the appellants? interest were litigated upon in their absence and makes an order non-suiting the 1st ? 4th respondents? suit. The answer to this question is very obvious nothing, absolutely nothing.
The appellants, being necessary parties to the 1st ? 4th respondents? suit, ought to have been joined as co-defendants to the suit.

It is for all the foregoing reasons that I hereby resolve the live issue in this appeal in favour of the appellants.

The ruling of the trial Court, per C.M.A. Olatoregun, J., delivered on the 2nd day of July, 2015 in Suit No. FHC/ASB/CS/57/2014, is hereby set aside. In place of the said ruling, the

appellants motion on notice filed on the 12th day of November, 2014 is hereby granted. The appellants are hereby joined as co-defendants to Suit No. FHC/ASB/CS/57/2014.

The sum of N100, 000.00 (one hundred thousand naira only) is hereby awarded as costs in favour of the appellants and against the 1st ? 4th respondents.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading before now the leading judgment just delivered by my learned brother Moore Aseimo Abraham Adumein, JCA. I agree with the reasoning and conclusion reached therein to the effect that the appellants’ complaint deserves a favourable consideration.

Accordingly, I hold that the appeal has merit and it is accordingly allowed. I also abide by the consequential order made in the leading judgment including the order as to cost.

Appearances:

–For Appellant(s)

Nnamdi Ibegbu (SAN) with E.O. Ibegbu, Esq. and P.O. Ogwudu, Esq., F.I. Obigbor, Esq. with H.C. Okolo, Esq. and A.C. Akpe, Esq. for the 1st ? 4th respondents.

Titilayo Ibironke, Esq. for the 7th respondent.
For Respondent(s)

Appearances

–For Appellant

AND

Nnamdi Ibegbu (SAN) with E.O. Ibegbu, Esq. and P.O. Ogwudu, Esq., F.I. Obigbor, Esq. with H.C. Okolo, Esq. and A.C. Akpe, Esq. for the 1st – 4th respondents.

Titilayo Ibironke, Esq. for the 7th respondent.For Respondent