ABUBAKAR DUDU MOTORS & ANOR v. ABDULKADIR KACHIA
(2016)LCN/8309(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of March, 2016
CA/ K/181/2015
RATIO
PRACTICE AND PROCEDURE: FACTORS AND TESTS WHICH DETERMINE THE PARTIES TO BE JOINED TO A SUIT BEFORE A COURT OF LAW
At this juncture, I think it is pertinent to consider the factors or the tests which determine the parties to be joined to a suit before a Court of law in a given factual situation. This Court in the case of Chief of Staff, Nigerian Army v. Lawal (2012) 10 NWLR (Pt.1307) P.62 @ 70, held that in determining whether to join a party to a suit or not, the Court ought to peruse the pleadings or the affidavit (where filed) of the parties thereto. In LSBPC v. Purification Tech. (Nig) Ltd (2013) 7 NWLR (pt. 1352) P. 82 @ 113, the supreme Court per Mohammad, J.S.C espoused the general principles of law which guides a Court of law in determining whether to join a party to an existing suit or not in these words on page 107 – 108 thus:
“But, who, in law, is a party whose joinder in the suit is necessary? This Court, has, in a number of decided cases laid down the test as to whether a person is a necessary party to be joined in a suit. For instance it has been held in the case of Peenok Investments limited v. Hotel Presidential Limited (1982) NSCC 477, (1983) 4 NCLR 122.
“The test as to whether there should be joinder of a party in a suit is based on the need to have before the Court such parties as would enable it to effectually and completely adjudicate upon and settle all the questions in the suit”
Again, in a number of decided Cases, it has been stated that the main reason/purpose for joinder of a party/parties in a suit is to make that person(s) bound by the result of the suit and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he/they be made a party or parties”.
The learned jurist continued on page 109 of LSBPC v. Purification Tech. (Nig.) Ltd Supra, and stated that:
“(a). Is it possible for the trial 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? And
(c). As an alternative is the person someone whose presence before the Court as defendant will be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause”. The question that arises is, who is a proper, or desirable or necessary party who ought to be joined for the effective and effectual determination of a dispute in a case or suit. In Chief of Army Staff v. Lawal (2012) 10 NWLR (Pt.1307) P. 62 @ 70, it has been enunciated that, proper parties are those who, though not actually interested in the claim, are joined as parties for some good reasons. Desirable parties are those who have an interest in a suit or may be affected by the result thereof. Necessary parties are those who not only have interest in the matter, but also who in their absence, the proceedings could not be fairly and effectually dealt with. Green v. Green (1987) 3 NWLR (Pt. 61) 480. In LSBPC v. Purification Tech. (Nig) Ltd (2013) 7 NWLR (P.1352) p. 82 @ 113, necessary party has been defined as someone whose presence is essential for the effectual and complete determination of the issues before the Court. He is a party, in the absence of whom, the whole claim cannot be effectually and completely determined. per. IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
1. ABUBAKAR DUDU MOTORS
2. DUDU MOTORS NIGERIA LTD – Appellant(s)
AND
ABDULKADIR KACHIA – Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): The facts or events culminating to the litigation at the Kaduna State High Court of Justice (the lower Court) and subsequently to this Court (the Court of Appeal) are simple and straightforward. The respondent (who was the plaintiff) at the lower Court, is a businessman dealing in buying and selling of cars. He resides in Kaduna, Kaduna State. The 1st appellant (also a businessman) was the 1st defendant residing in Kaduna. The 2nd appellant (as 2nd defendant) is a company whereat the 1st appellant carries on his business. In or about the year 2006, the respondent imported a Chevrolet Avalanche pickup, 2002 model, valued at Three Million naira (3,000,000.00). The said vehicle was placed at the premises of the 2nd appellant which was owned by the 1st appellant. The 1st appellant and the respondent entered into an agreement whereby the car was to be sold by the 1st appellant at any price provided that the sum of N3,000,000.00 was to be given to the respondent. The 1st appellant took possession of the car. After sometime, the respondent found out that the 1st appellant
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had sold the car but did not give him the N3,000,000.00 as agreed. Upon further investigation, the respondent discovered that the car was sold to three (3) other persons successively up to the sum of N5,000,000.00. The 1st appellant however failed to give the respondent the sum of N3,000,000.00, being the cost of the car.
The respondent, dismayed and disappointed, filed a suit before the High Court of Justice (the lower Court) Kaduna, Kaduna state, against the 1st and 2nd appellants, jointly, claiming as follows:
“i. The sum of N3,000,000.00 being the cost of the Chevrolet Avalanche pickup, 2002 model, which was sold by the 1st appellant but he refused to make available to the respondent the agreed sum of N3,000,000=00.
ii. 10% interest on the sum of N3,000,000=00 from date of filing the suit till judgment, and final liquidation of the total judgment sum.
iii. Cost of the suit.
iv. Such other order(s) the Court may deem fit to make in the circumstances”.
The parties filed pleadings, and issues having been joined, the matter went to trial, whereat the parties gave evidence and called witnesses. On the 19th of May 2015, the
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learned judge of the lower Court delivered his judgment granting all the claims of the respondent in these terms:
“The law is trite, for he who asserts must prove and this the 1st Defendant has failed to do. I am incline to agree with submission of the plaintiff’s counsel that the remedy of the plaintiffs lies in this suit and no other. I also agree with the learned counsel for the plaintiff that the fact there were other parties involve in the sale of the car does not invalidate the agreement between the 1st Defendant and the plaintiff and those others involved in the sale of the car as submitted by the learned counsel for the plaintiff were involved at the instance of the 1st Defendant”
Dissatisfied with the judgment, the appellants filed notice of appeal to this Court on the 12th of June, 2015. The appellants’ brief of argument was filed on the 23rd of July 2015. The respondent’s brief of argument was filed on the 28th of August, 2015. The appeal was heard by this Court on the 2nd of February 2016, whereat learned counsel to the parties adopted their respective briefs of argument. Bassey Esq. did urge the Court to allow the appeal and set aside the
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judgment of the lower Court. Sulaiman Esq. did urge the Court to dismiss the appeal, and affirm the judgment of the lower Court.
On page 4 of the appellants’ brief of argument a sole issue has been distilled from the grounds of the notice of appeal, which is thus:
“WHETHER NECESSARY PARTIES WERE BEFORE THE LOWER COURT”
The respondent adopted the sole issue contained in the appellants’ brief of argument on page 2 thereof.
RESOLUTION OF ISSUE
Bassey Esq., of learned counsel contended that the averments contained in the pleadings of the parties before the lower Court evidently showed that there were necessary parties whose presence would have aided that Court in resolving the dispute judicially and judiciously but they were not joined. That the non-joinder of the parties had deprived the lower Court the opportunity of dealing with the issues in dispute effectively and effectually. The case of Agbekoni v. Kareem (2008) All FWLR (pt. 406) p. 1970 @ 1987 was cited and relied on to buttress the proposition of the principles of law that it is the duty of a plaintiff to join all necessary parties whose presence would be crucial to the
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resolution of the disputes. On the pleadings before the lower Court, learned counsel submitted, Murtala Dan Tamar, played vital role in the transaction involving selling of the respondent’s car, Chevrolet Avalanche pickup, such that the dispute between the appellants and the respondent was not resolved effectively and effectually having not joined him as a party. Learned counsel did urge the Court to hold that Murtala Dan Tamor, was a necessary party, whose presence was essential in resolving the dispute between the appellants and the respondent. That the sole issue be resolved in favour of the appellants.
A. A. Suleiman Esq., did submit that all necessary parties were joined in the case before the lower Court. As to who is a necessary party, learned counsel cited and relied on the cases of LSBPC v. Purification Tech. Nig. Ltd (2013) 7 NWLR (Pt. 1352) P. 82 @ 113; Chief of Army Staff v. Lawal (2012) 10 NWLR (Pt. 1307) P.62 @ 70; Okanola v. Avioye (2013) 3 NWLR (Pt.1341) P. 221 @ 233. It has been pointed out that Muntala Dan Tamar was not a necessary party in view of the pleadings by the parties before the lower Court. That if the appellants had any case
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against him, they ought to have joined him through a third party proceedings. Learned counsel contended that it was the duty of the appellants to have joined any person they thought ought to be joined, not for the respondent to have done so. The cases of Soyinka v. Oni (2011) 13 NWLR (Pt. 1264) P. 294 @ 312 and Muhammed v. Babalola (2012) 5 NWLR (Pt. 1293) P. 395 @ 430 cited in aid.
On the assertion of lack of jurisdiction, counsel contended that the failure to join Murtala Dan Tamar did not oust the jurisdiction of the lower Court to adjudicate the case filed by the respondent. That if Murtala Dan Tamar desired to be joined, he could have done so. The case of Mohammed v. Babalola Supra cited to buttress the submissions supra.
On joinder or non-joinder of a party to a case and its effect, the case of LSBPC v. Purification Tech. Nig. Ltd Supra P. 113-114 cited wherein the factors to be taken in consideration in determining when it is necessary to join a person as a party have been enumerated. That the conditions required to join Murtala Dan Tamar as a defendant to the suit before the lower Court have not been established, therefore, the assertion of
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the appellants that the proceedings at the lower Court is a nullity for non-joinder cannot be correct in law. Concluding, learned counsel did urge the Court to resolve the sole issue against the appellant, and dismiss the appeal for lacking in merit.
The grouse or complaint of the appellants against the case instituted against them by the respondent before the lower Court is that necessary parties were not joined for the effective and effectual determination of the dispute between them and the respondent. Having filed pleadings, issues joined and evidence taken, the learned judge of the lower Court found and held on page 128 of the printed record of appeal thus:
“It is therefore clear that even thought the plaintiff could be said to have been aware of the involvement of the said Murtala in the transaction as stated herein above, that does not preclude from liability as he was the penas in whose custody the vehicle was entrusted with and an agreement to remit the agreed sum of N3M only to the plaintiff.
This because the said Murtala in the actual sense has no direct or even indirect link or agreement with plaintiff in the said transaction. The
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said Murtala it is therefore clear is answerable or accountable to the 1st Defendant only since they had a deal between them to share whatever profit he made there from.
Furthermore, it is clear that there was no agreement between the plaintiff and the said Murtala that the latter should remit the agreed N3M directly to the plaintiff and by pass the 1st Defendant who bought and or allegedly introduced the said Murtala.
It is also evidently clear that the Defendants did not denied this or controvert the allegations or facts pleaded and evidence of the plaintiff thereto in his reply to the statement of defence and neither were the challenged even under cross-examination by the Defendants thereto”. (Underlining mine for emphasis).
From the portion of the judgment of the learned trial judge of the lower Court reproduced supra, it is deducible that he did not consider MURTALA DAN TAMAR as a necessary or desirable party whose presence as a party to the suit instituted by respondent is necessary or desirable for the effective and effectual determination of the dispute, once and for all. Was the learned trial judge right in arriving at the findings
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and decision supra. At this juncture, I think it is pertinent to consider the factors or the tests which determine the parties to be joined to a suit before a Court of law in a given factual situation. This Court in the case of Chief of Staff, Nigerian Army v. Lawal (2012) 10 NWLR (Pt.1307) P.62 @ 70, held that in determining whether to join a party to a suit or not, the Court ought to peruse the pleadings or the affidavit (where filed) of the parties thereto. In LSBPC v. Purification Tech. (Nig) Ltd (2013) 7 NWLR (pt. 1352) P. 82 @ 113, the supreme Court per Mohammad, J.S.C espoused the general principles of law which guides a Court of law in determining whether to join a party to an existing suit or not in these words on page 107 – 108 thus:
“But, who, in law, is a party whose joinder in the suit is necessary? This Court, has, in a number of decided cases laid down the test as to whether a person is a necessary party to be joined in a suit. For instance it has been held in the case of Peenok Investments limited v. Hotel Presidential Limited (1982) NSCC 477, (1983) 4 NCLR 122.
“The test as to whether there should be joinder of a party in a suit is
9
based on the need to have before the Court such parties as would enable it to effectually and completely adjudicate upon and settle all the questions in the suit”
Again, in a number of decided Cases, it has been stated that the main reason/purpose for joinder of a party/parties in a suit is to make that person(s) bound by the result of the suit and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he/they be made a party or parties”.
The learned jurist continued on page 109 of LSBPC v. Purification Tech. (Nig.) Ltd Supra, and stated that:
“(a). Is it possible for the trial 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? And
(c). As an alternative is the person someone whose presence before the Court as defendant will be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause”.
The question that arises is, who is a
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proper, or desirable or necessary party who ought to be joined for the effective and effectual determination of a dispute in a case or suit. In Chief of Army Staff v. Lawal (2012) 10 NWLR (Pt.1307) P. 62 @ 70, it has been enunciated that, proper parties are those who, though not actually interested in the claim, are joined as parties for some good reasons. Desirable parties are those who have an interest in a suit or may be affected by the result thereof. Necessary parties are those who not only have interest in the matter, but also who in their absence, the proceedings could not be fairly and effectually dealt with. Green v. Green (1987) 3 NWLR (Pt. 61) 480.
In LSBPC v. Purification Tech. (Nig) Ltd (2013) 7 NWLR (P.1352) p. 82 @ 113, necessary party has been defined as someone whose presence is essential for the effectual and complete determination of the issues before the Court. He is a party, in the absence of whom, the whole claim cannot be effectually and completely determined.
The pleadings in support of the respondent (as plaintiff,) claims are on pages 003 to 004 of the printed record of appeal. As pointed out in Chief of Staff v. Lawal
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(2012) 10 NWLR (Pt. 1307) P.62 @ 70, in determining whether to join a person to a suit or not, the Court is to peruse the pleadings or any affidavit, if filed in the case/suit by the parties.
For this reason the averments contained in the statement of claim filed by the respondent are reproduced hereunder for easy comprehension.
Paragraphs 1 to 14 thereof are as follows:
“1. The plaintiff is an importer of cars who resides in Kaduna within the jurisdiction of the Honourable Court.
2. The 1st Defendant is also businessman who carries on the business of car dealer in Kaduna state within the jurisdiction of the Honourable Court.
3. The 2nd Defendant is the company used for the purposes of the business mentioned in paragraph 1 above in Kaduna within the jurisdiction of the Honourable Court.
4. That the Plaintiff avers that sometimes in the year 2006 he imported a Chevrolet Avalanche Pickup 2002 model from Cotonou valued at the sum of N3,000,000.00 (Three Million Naira Only) and displayed same in the premises of the 2nd Defendant for sale as he usually does. The importation documents, which includes the certificate of title (also
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known as category), general customs import papers, payment receipt of custom duty, assessment notice, release order, certificate of entry, bill of lading, debit note of Nigeria ports Plc, invoice, customs revenue receipt and motor vehicle duty certificate, are hereby pleaded and shall be relied upon at the hearing of this suit.
5. That the Plaintiff further avers that while the car was on display at the said premises of the 2nd Defendant, the 1st Defendant sold same to a buyer and refused to remit the money to the Plaintiff even when he sold at a higher price than the value of the car.
6. That sometimes in 2009, the Plaintiff filed a case at the Chief Magistrate Court, Ibrahim Taiwo Road, Kaduna for Criminal Breach of Trust, Cheating and Misappropriation against the 1st Defendant wherein he approached the Plaintiff for settlement with a promise to pay the value of the car which is the N3,000,000.00 being claimed by the Plaintiff.
7. That the Plaintiff also avers that despite that promise, the 1st Defendant neither paid the value nor returned the car.
8. That the case at the chief Magistrate Court, Ibrahim Taiwo Road, Kaduna took another
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dimension when it was found out that after the 1st Defendant sold the car, it was sold to another person then another person, then another person and another person finally for the sum of N5,500,000.00 (Five Million, Five Hundred Thousand Naira Only).
9. That the chief Magistrate Court, Ibrahim Road, Kaduna gave an order impounding the car and same was impounded and deposited at the premises of the Court.
10. That the last buyer filed a suit at the High Court of Justice, Kaduna asking the Court to release the car to him since he is a bona fide purchaser for value and same is still pending at the High Court of Justice while the car is still deposited at the premises of the Chief Magistrate Court, Ibrahim Taiwo road, Kaduna depreciating.
11. That the Plaintiff further avers that he had no dealings with any other person than the 1st and 2nd Defendants and the car has since been sold while the Plaintiff is yet to be paid his money.
12. That the value of the car deposited at the premises of the chief Magistrate Court, Ibrahim Taiwo Road, Kaduna has depreciated in value, while at the same time the Plaintiff has been denied the fruits of the
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value of the car by the Defendants.
13. That the Defendants cannot denied collecting the car at the value of N3,000,000.00 in 2006 and did not remit the money to the Plaintiff.
14. That the Defendants cannot deny the claims of the Plaintiff”.
The appellants’ (as defendants) joint statement of defence are on pages 050 to 053 of the printed record of appeal. Paragraphs 2, (a)-(q) and 3, (i)-(ii) thereof are germane to the determination of the issue raised by them. The respondent (plaintiff) filed a Reply to the joint statement of defence on pages 067-071 of the record of appeal. Paragraphs 3,4,6-12, 14-17, 20 and 21 thereof are relevant to the dispute between the parties.
As pointed out in the case of LSBPC v. Purification Tech. (Nig) Ltd (2013) 7 NWLR (Pt. 1352) P.82 @ 107, the test as to whether there should be joinder of a party in a suit is based on the need to have before the Court such parties as would enable it to effectually and completely adjudicate upon and settle all the questions in the suit.
The main reason or purpose for joinder of a party or parties in a suit is to make that person(s) bound by the results of the suit, and the
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question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he or they are made a party or parties.
I have had a dispassionate consideration of the averments contained in the statement of claim, the Joint statement of defence and the Reply thereto by the respondent. To my mind, the dispute is purely between the respondent (as plaintiff) and the appellants (as defendants). What Murtala Dan Tamar did or what the other persons named by the appellants did have nothing to do with the respondent. The respondent’s statement of claim disclosed a dispute with the appellants. The subsequent dealings did not involve the respondent. The respondent’s claims, therefore cannot be enforced against the appellants, even if granted. In the result, I hold that in suit KDH/KAD/486/2012, between Abdulkadir Kachia and Abubakar Dudu Motors and Dudu Motors Nigeria Ltd, necessary parties have been joined as parties. Consequently, the sole issue for determination in the appeal, this is, whether necessary parties have been joined in the suit before the lower Court is hereby resolved against the appellants. The appeal
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therefore, fails. The judgment of the lower Court in suit No. KDH/KAD/2015, delivered on the 19th of May, 2015 is hereby affirmed.
UWANI MUSA ABBA AJI, J.C.A.: I had a preview of the judgment of my learned brother, Ibrahim S. Bdliya, JCA, just delivered.
I completely agree with the reasoning and conclusions of my learned brother that the appeal is devoid of any merit. It is for the same reasons therein contained which I adopt as mine that I too dismiss the appeal and affirm the judgment of the lower Court in Suit No. KDH/KAD/486/2012 delivered on the 19th of May, 2015 is hereby affirmed.
I endorse the consequential order made including orders as to costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: With the determination by my learned brother, Ibrahim Shata Bdliya JCA of the sole issue in favour of the Respondent, I am in agreement, as lucidly expounded in the lead Judgment, that the necessary parties were before the lower Court.
As held in the case of All Progressives Congress v Peoples Democratic Party (2015) 15 NWLR Part 1481 Page 1 at 60 para F – G and p. 62 para B per Ngwuta
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JSC; a necessary party is one not only interested in the dispute but that the matter cannot be decided fairly in his absence. It does not make sense, the learned Jurist said, to join a party to any proceeding, except a statutory body, where no complaint is made against such a party.
Except it can be said that unless a party is joined as a Defendant, the claims before the Court would be defeated, the Court does not have jurisdiction to order a joinder. So held Nnaemeka-Agu JSC in Ojo v Oseni (1987) 4 NWLR Part 66 P. 622 at 633 para A – B.
The dispute in the instant case is between the Respondent, as plaintiff, and the Appellants, as Defendants. The other persons named by the Appellants are not necessary parties to the suit by the Respondent against the Appellants, I hold.
I agree with my learned brother that the appeal by the Appellants should and is hereby dismissed. The judgment of the lower Court is accordingly affirmed.
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Appearances:
Lawrence Bassey, Esq. For Appellant(s)
A. S. Sulaiman, Esq. For Respondent(s)
Appearances
Lawrence Bassey, Esq. For Appellant
AND
A. S. Sulaiman, Esq. For Respondent
