ATTORNEY GENERAL OF EDO STATE v. ORIANE AKERE ESQ & ORS
(2018)LCN/11636(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of June, 2018
CA/B/399/2015
RATIO
PRINCIPLES OF FAIR HEARING
It is a fundamental principle of law that all parties who will be affected one way or other in a litigation must be made parties. They are entitled to be heard and must be heard before judgment is given by the Court. This is because it is against all known principles of fair hearing for a party to be condemned in a judgment in which he is not given an opportunity to lead evidence either in support or in defence of his right. per HUSSEIN MUKHTAR, J.C.A.
JUSTICES:
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
ATTORNEY GENERAL OF EDO STATE – Appellant(s)
AND
1. ORIANE AKERE, ESQ.
(CHAIRMAN NIGERIAN BAR
ASSOCIATION BENIN
BRANCH)
2. PRINCE COLLINS
SECRETARY NIGERIAN BAR ASSOCIATION
(FOR THEMSELVES AND ON BEHALF OF MEMBERS OF THE NIGERIAN BAR ASSOCIATION
BENIN BRANCH)
3. SIR CHIEF (DR) ALFRED OGHOGHO EGHOBAMIEN,
S.A.N. FCI, Arb – Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the High Court of Edo State delivered by Hon. Justice A. N. Erhabo, J on 5th May 2014 in suit No. B/2/0S/13, wherein the lower Court refused the Appellant’s application for joinder.
The matter commenced at the lower Court by the Respondent’s originating summons filed on 18th January 2013 wherein the following questions were posed for determination by the Court.
1. Whether in the light of S.7 and paragraph 1(j) of the Schedule IV of the Constitution of the Federal Republic of Nigeria 1999 as amended, the Edo State Government can validly impose land use charge on residential buildings in Edo State.
2. Whether in the light of S.7 and paragraph 1(j) of Schedule IV of the Constitution of the Federal Republic of Nigeria as amended the Edo State Land Use Charge on Residential Building in Edo State is not unconstitutional and consequently invalid and of no effect whatsoever.
3. Whether in the light of S. 7 and paragraph 1(j) of Schedule IV of the Constitution of the Federal Republic of Nigeria 1999 as amended a Local Government Council can delegate a constitutional function to the State Government as envisaged by Section 3(2) of the Edo State Land Use Charge Law 2012.
The Respondents then sought for the following declaratory reliefs:
1. A Declaration that the Edo State Land Use Charge Law 2012 is unconstitutional, illegal, null and void and of no effect whatsoever.
2. An Order of perpetual injunction restraining the Defendant and agencies of Edo State Government from collecting land use charge levies on residential houses or giving effect whatsoever to the law as it relates to residential houses in Edo State.
3. An Order for the Defendant to pay cost of this proceeding to the Claimant.
In view of the questions posed for determination and relief sought by the Respondents, the Appellant filed a motion dated 22nd July 2013 for joinder of the 18 Local Government Councils in Edo State as Co-defendants. The application was deemed necessary and expedient because the originating summons challenged the power of the Local Government Councils in Edo State to vire the charges collected on residential houses having regard to the provision of Section 7 and Paragraph 1(j) of the Forth Schedule to the Constitution.
In his considered ruling delivered on 5th May 2014 on the motion for joinder, the learned trial Judge refused the application for joinder of the 18 Local Government Councils.
The Appellant with the leave of the lower Court filed an appeal against that interlocutory ruling vide their Notice of Appeal predicated upon the following twin grounds:
1. The Learned Trial Judge erred in law when he dismissed the motion for Joinder and held that the parties sought be joined are not necessary parties.
PARTICULARS OF ERROR
(i) The parties sought to be joined are necessary parties in this proceeding:
(ii) Joining the parties sought to be joined will enable the Court to effectively and properly adjudicate on all the issues before Court.
(iii) The parties sought to be joined will be directly, legally and financially affected by the result of the litigation in this suit.
(iv) Joining the parties sought to be joined will avoid multiplicity of actions in this suit.
2. The Learned Trial Judge in his ruling has denied the parties sought to be joined fair hearing under Section 36(i) of the Constitution of the Federal Republic of Nigeria, 1999.
PARTICULARS OF ERROR
(i) The functions of the parties sought to be joined under the 1999 Constitution as amended are in issue in this suit and Natural Justice demands that they should be heard.
(ii) Joining the parties will accord more with the dictate of justice.
(iii) Further grounds of appeal will be filed on receipt of the ruling of the Lower Court.
The Appellants counsel argued that the parties sought to be joined to the suit by the Appellant have vested interest in this matter or are necessary parties that will be bound by the judgment/outcome of this case.
It was submitted for the Appellant that refusal of the joinder application to join the 18 Local Government Councils in Ondo State was tantamount to denying them right to fair hearing.
It was argued that from the claim filed at the lower Court against the Appellant by the Respondent, the parties sought to be joined to the action by the Appellants have vested interest in this matter, are necessary parties and they will be affected in one way or the other by the judgment/outcome of this case.
The provision of Section 7(1) of the Fourth Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as Amended) which pertains to the establishment and function of the Local Government Councils (Parties sought to be joined) is hereunder reproduced:
S.7(1) “The system of Local Government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to Section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils.”
The said paragraph 1(j) to Schedule IV of the Constitution states as follows:
“The main functions of a local government councils are as follows:
Assessment of privately owned houses or tenements for the purpose of levying such rates as may be prescribed by the Houses of Assembly of a State ….. ”
It was therefore submitted for the Appellant that since it is the alleged constitutional functions of the council the Appellant passed a law to carry out and same is being challenged by the originating summons of the Respondent, the councils (parties sought to be joined) have vested interest in this matter which qualify them to be joined as parties. Reference was made to the statement of Law made by TABAI JSC in the case of CARRENA VS. AKINLASE (2008) VOL 162 LRCN PAGE 85 AT PAGE 150 PARAG. PAGE 106 PARA. A-P where the Learned Jurist stated thus:
“It is a settled principle of Law that an application by a third party or intervener for a joinder can only be granted if the applicant satisfies the Court;
(I) That his presence is necessary for the effectual adjudication of the matter
(II) That the Plaintiff’s claim against the existing defendants also affects him and/or
(III) That his interest is the same as or identical with that of the existing defendants.
The Court was urged to resolve both issues in favour of the Appellant and allow the appeal.
Submitting to the contrary, however, Mr Okoh, Esq the Learned Counsel for the Respondent argued that an application such as this is not granted as a matter of course. It is not an application brought in frivolity. There are principles enunciated in several decided cases guiding the grant or refusal of the Application.
Before a party can be joined to a pending suit the party sought to be joined must be a necessary party. The Supreme Court in L.S.B.P.C VS. Purification Tech (Nig) Ltd (2013) 7 NWLR (part 1352) page 82 at 91 Ratio 12 held thus:
” … A necessary party is 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 Appellant deposed to affidavit in support of their application. From the depositions of the Applicant as contained in paragraphs 1 – 9 of the affidavit in support of motion, the questions that may arise are:
a. Whether a very strong case is made out, showing that in the particular case, justice cannot be done and the case cannot be properly determined without the parties sought to be joined be brought in;
b. Whether the Claimants’ case or the existing Defendant’s case cannot be very effectually and completely determined without the joinder.
See the cases of Aromire V. Awoyemi (1972) All NLR (pt. 1)101 at 108; Lajumoke V. Doherty (1969) 1 NMLR 281. The Supreme Court has held in Cotecna Int. Ltd v. Churchgate (Nig) Ltd (2010) 18 N.W.L.R pg 346, pp 392-393, paras F-A, that Court should ask itself the following questions in order to decide the effect of non-joinder.
a. Is the cause or matter to be defeated for non joinder?
b. Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a Defendant?
c. Is the 3rd party a person who should have been joined in the first instance?
d. Is the 3rd party a person whose presence before the Court as a Defendant will be necessary in order to enable the Court to effectually and completely, adjudicate or settle all the questions involved in the cause or matter?
It was submitted for the Respondents that the affidavit evidence of the Applicant before the Court does not fulfill the conditions for the grant of this application, and consequently the questions as raised in the above cited case is answered in the negative. It was further argued for the Respondents that there is nothing on the face of the Claimant’s Originating Summons, which cannot be completely and effectually adjudicated upon in the absence of the parties sought to be joined and that following the principles of law as stated above cited cases, it is clear that the interest of a party sought to be joined in a suit which makes the party a necessary party, is not self-imposed, but must be an interest emanating from claim before the Court and the Applicant having failed to show by his affidavit evidence that their interest emanate from the claim before the Court is fatal to the case of the Defendant/Applicant and in the circumstance, the presence of the parties sought to be joined is not essential in any way for the effectual and determination of this case and the joinder sought therefore by the Defendant/Applicant becomes unnecessary.
Also in the Supreme Court case of Babayeju v. Ashamu (1998)9 NWLR pg 567 and 555 the Supreme Court per Ogwuegbu, JSC in the lead judgment observed thus:
“Necessary party is someone whose presence is necessary as a party. The only reason which makes it necessary to make a person a party to an action is 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.”
It was submitted for the Respondents that there is no case made out against the parties sought to be joined as evident by the reliefs as endorsed on the Originating Summons and the Affidavit Evidence before the Court to warrant the grant of this application.
In Igwe I. R.E Iweka & Ors v. AGF & Ors (1996) 4 NWLR (pt442) 1 pg 362 the principles guiding the joinder of parties were stated to include the following:
a. There should be a joinder of a party where it will prevent multiplicity of actions arising from the same series of transactions and would thus enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the case or matter.
b. There should be joinder of a party if his presence before the Court is necessary to enable the Court properly determine once and for all the issues for adjudication before the Court. Thus, a party should be joined if he will have his interest irreparably prejudiced should he not be joined as a party.
c. There should be joinder of a party if he will be bound or is likely to be affected by the result of the decision of the Court.
d. There should be a joinder of a party as Defendant if the cause or matter will be defeated or if it will not be possible without doing injustice to the Defendant to adjudicated on the cause of action set up by the Claimant. See Adediran vs. Interland Transport Ltd (1993) 9 NWLR (pt. 214) p.155, Igbokwe vs. Igbokwe (1993) 2 NWLR (pt. 273).
The crucial reason for a joinder is to ensure that an interested party is not caught by the principle of res judicata in the sense that he remained aloof to a suit in which his legal interest is at stake and secondly to avoid a multiplicity of actions arising from the same subject matter. See Uku v. Okumagba (1974) 3 se pg 38, Oladeinde vs. Oluwole (1962) WNLR pg 41.
The Court was urged to resolve the two issues in favour of the Respondents and dismiss the appeal.
The factors for joinder of parties is, in my view, not as shallow as appraised by the lower Court and Learned Counsel in their respective arguments before this Court. It is not merely a question of disclosure of the extent of interest that guides the Courts in the principle of joinder of parties. It is enough if the parties sought to be joined will be bound by the outcome of the case in question.
Thus, a party who shows the probability of being affected by the result of the action should have shown enough interest to be allowed to join in the action. The authorities cited state alternative and disjunctive conditions for joinder. The law does not intend that water tight stringency should be imported into it simply to make the task of joinder next to impossible.
It fails to meet my sense of justice that the principle of joinder which is discretionary would be employed to admit some relevant parties to the action and refuse others. The Court might often think it convenient or desirable that persons who have shown their stake and could be affected by the result of the action should be heard so that the Court could be sure that it had found the complete answer to questions posed in the originating summons. It is not necessary to hear them for that purpose. It suffices if the outcome of the action is likely going to touch on the rights under the law.
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 if he is not a party.
The two main objective for joining a party in an action are:
i) To put an end to litigation and not to have two parallel proceedings in which the same issue is raised leading to different and inconsistent results.
ii) To make the person joined to be bound by the result of the litigation. See Re Mogaji (1986) 1 NWLR (pt. 19) pg 759. In the case of Chinweze & Anor vs. Mrs. Masi & Anor. (1989)1 NWLR (pt. 97) 254 it was held inter alia that the Court has a duty to prevent the expensive luxury of having two separate suits where it can by joinder settle the whole matter in one action. See Registered Trustees of National Association of Community Health Practitioners of Nigeria & Ors. Vs. Medical and Health Workers Union of Nigeria (MHWUN) & Ors. (2008) 34 NSCQR pg. 321 at 401.
It is a fundamental principle of law that all parties who will be affected one way or other in a litigation must be made parties. They are entitled to be heard and must be heard before judgment is given by the Court. This is because it is against all known principles of fair hearing for a party to be condemned in a judgment in which he is not given an opportunity to lead evidence either in support or in defence of his right. See Onabanjo vs. Ewetuga (1993)4 NWLR (pt. 288) pg 445.
The issue is not as the learned trial judge found that no case was made against the parties sought to be joined in the originating process. (See page 121 of the record).
The learned trial judge at page 122 of the record held:
“I agree that the Court can resolve the questions stated in the originating summons and they border strictly sensu on the interpretation of the Constitution and the claimants in paragraphs 3(c) of their counter affidavit stated as follows:
(a) That the Claimants have no relief against the Local Government Councils the parties sought to be joined. The parties sought to be joined have not breached any of the Claimant rights
I must endorse that averment as apt, apposite and appropriate. The Attorney General of the State as the Chief Law Officer of the State can appropriately and adequately defend their suit.”
From the evaluation and finding made by the trial judge it is clear that the learned trial judge wrongly appraised the principle of joinder of parties since he has not ruled out the possibility of the outcome of the proceedings affecting the rights of the Applicants, especially as the posers require the interpretation of the powers or functions of Local Government Councils in Edo State under the Constitution. They have everything to lose if their rights are interpreted negatively in a case in which they are refused audience for no clear reason.
The Learned Counsel for the Respondents was so vehement that he usurped the function of the Court by pronouncing on the limit of the powers of Local Government Councils under the provisions sought to be interpreted. For the avoidance of doubt he submitted thus:
My Lords, the parties sought to be joined have no say or powers to alter the constitutional provisions, for as a matter of fact, they can not delegate the functions assigned to them by the Constitution to any other body.
See Knight, Frank & Rutley v. A. G. Kano (1998) 7 NWLR (Pt. 556) Se. 1 at 18-19, paras E-B where Uwais, C.J.N., observed thus:
“It can be seen that the main purpose for which the contract was entered into by the parties corresponds with the functions allocated to Local Government Councils by the 1979 Constitution….. it is clear from the provisions of Paragraph l(b) and (j) of the Fourth Schedule read together with the provisions of Section 7 Subsection (5) of the Constitution that the intendment of the Constitution is that only Local Government Councils have the power to assess and impose rates on privately owned property”.
See also the case of A.G. Cross River State v. Ojua (2011) All F.W.L.R (Pt.594) 151.
The Learned trial judge realised that the Applicants have a right to protect but instead of allowing them to participate in the proceedings, he made an undertaking on the bench to the Applicants when he held thus:
“The analogy painted in the written address of the defence of shaving a man’s head in his absence may be an ingenious literary gem, however it is of doubtful legal significance, inapplicable, untenable and implausible in my considered view as the rights and interest of the parties sought to be joined will not be prejudiced or irreparably and deleteriously affected by the outcome of the substantive suit if not joined”. (Emphasis supplied)
So long that the originating summons of the Respondents at the deals with the interpretation of Section 7 paragraph 1(j) to the 4th Schedule to the 1999 Constitution (as amended), which deals with the establishment and functions of the Local Government Councils (parties sought to be joined), the applicants have made out sufficient case to be granted an application for joinder and I hereby so hold.
The Applicants, who apparently have an equal if not better stake than any other party in the proceedings, are necessary parties as their interest may be affected by the outcome of the judgment. See the case of AKPAMGBO-OKADIGBO & ORS VS. CHIDI & ORS (NO.1) (2015) VOL. 247: RCN 45 AT PAGE 79 PARA EE – JJ PAGE 80 PARA AK where the Supreme Court per Muhammad JSC restate the principles for joinder, thus:
(a) “the party is aggrieved or likely to be aggrieved by the result of the litigation to the extent that he will be directly, legally or financially affected by the result of the litigation.
(b) to avoid multiplicity of suits arising from the same subject matter or res.
(c) to enable the Court fully, completely and effectively deal with the suit in order to frustrate or stop a possible future litigation on the subject matter.
(d) to ensure that the principle of fair hearing under S.36 of the 1999 Constitution as amended and natural justice rule of audi alterem partem are not breached.
(e) to avoid loss of jurisdiction by the fact of non-joinder ….”
It is clear that the refusal of the lower Court to join the local government councils to the suit of the Respondent amounted to a denial of fair hearing. See the case of INAKOJU & ORS VS. ADELEKE & ORS (2007) Vol. 143 LRCN PAGE 1 AT PAGE 105 PARAGRAPH TT PAGE 106 PARA AK, where the Supreme Court per Tobi JSC held as follows:
“Section 36 of the 1999 Constitution provides for the fair hearing in the determination of the civil rights and obligations of a person. The Constitutional provision mainly stems or germinates from two common law principles of natural justice. They are audi alteram partem and nemo judex in causa sua.
It is the first of the two that is relevant to this appeal. The meaning of the Latinism is “hear the other side; hear both sides. No man should be condemned unheard.
See Black’s Law Dictionary, 6th edition, page 131. What the rule or doctrine means is that the parties must be given equal opportunity to present their cases to the Court and that no party should be given ample opportunity or advantage in the prosecution of his case.
Also, GALADIMA JSC in the case of DUKE VS. GOVT CRS (2013) VOL. 222 PT. I p. 90 at 109 paras. K-U has this to say about fair hearing:
By the term fair hearing, within the context of S.36 {1} of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all costs to all parties..
It is also pertinent that no cause or matter shall be defeated by reason of misjoinder or non-joinder of parties, and the Court or Judge may in every cause or matter deal with matter in controversy so far as regards the rights and interests of the parties actually before it. For the foregoing appraisal, I find merit in this appeal. I accordingly allow the appeal as meritorious. The ruling of the lower Court delivered on 5th May 2014 is hereby set aside. In the stead thereof, the Appellant/Applicant application for joinder before the lower Court is granted as prayed. The parties shall bear their respective costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Hussein Mukhtar, JCA. I completely agree with his reasoning and conclusions contained therein in allowing the appeal.
I too allow the appeal and abide by the consequential orders to the effect that parties shall bear their respective costs.
FREDERICK OZIAKPONO OHO, J.C.A.: I had a preview of the Judgment of my Learned Brother, HUSSEIN MUKHTAR, JCA which he has just delivered. I am in agreement with his reasoning and conclusions in allowing the appeal as meritorious. I abide by the consequential orders made by Court.
Appearances
M. O. Airende, Esq.
(DDCL MOJ, Ondo State) For Appellant
AND
Uwa Okoh, Esq. For Respondent
