CHIEF SHEHU LAWAL v. FED. MINISTRY OF ENVIRONMENT & URBAN DEVELOPMENT & ORS
(2011)LCN/4813(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of December, 2011
CA/L/304M/10
RATIO
JOINDER OF PARTY: CIRCUMSTANCES WHERE IT WILL BE NECESSARY TO ALLOW A PERSON TO BE JOINED AS A PARTY TO THE SUIT
It is trite and a very fundamental principle of law that where it is apparent to a court that any person not being a party in a case may eventually be liable, either in whole or in part, it may be necessary to allow such person to be joined as a party to the suit. The main reason for this is to make such a party to be bound by the outcome or result of the action. See Green v. Green (1987) 3 N.W.L.R. (pt.61) 480; G. M. Enterprises Ltd. v. C. R. Investment Ltd. (2011) 14 N.W.L.R. (pt.266) 125. It is commonsensical that all persons who may be affected by an order of court in respect of any matter before it, as much as is practicable, be made parties in the suit. Whether they are proper parties, desirable parties or necessary parties, the result or effect is the same. PER JOHN INYANG OKORO, J.C.A.
NECESSARY PARTY: WHO ARE NECESSARY PARTIES TO A SUIT
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. PER JOHN INYANG OKORO, J.C.A.
JOINDER OF PARTY: WHAT THE COURT WILL CONSIDER IN DETERMINING WHETHER TO JOIN A PARTY TO A SUIT OR NOT
In determining whether to join a party to a suit or not, the court ought to peruse the pleadings or the affidavit of the parties to the suit. PER JOHN INYANG OKORO, J.C.A.
INTERPRETATION OF STATUTE : INTERPRETATION OF SECTION 243(A) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED) AS REGARDS WHETHER IT PROVIDES FOR JOINDER OF A PARTY TO A SUIT
The Applicants had brought this Application pursuit to Section 243 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), amongst other relevant rules of court. Under Section 243(a) of the said constitution, a party who is interested in any civil matter may seek leave from the Federal High Court, State High Court or the Court of Appeal in order to appeal against a decision which he was originally not a party at the hearing stage. There is no provision for joinder of an interested party under Section 243(a) of the Constitution of the Federal Republic of Nigeria 1999. All that the Section grants to an interested party is a right to appeal against a decision of a court which he was not a party. For the avoidance of doubt, Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) states:- “243 Any right of appeal to the Court of Appeal from the decision of Federal High court or a High court conferred by this constitution shall be – a. exercisable in the case of civil proceedings at the instance of a party thereto, or will the leave of the Federal High court or the High court or the court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this constitutions of any power conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or person as may be prescribed”. Clearly, the section confers a right of appeal to “any other person having an interest in the matter” and not the joining of a party to a suit at the hearing stage.” PER JOHN INYANG OKORO, J.C.A.
JUSTICE
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
CHIEF SHEHU LAWAL (For himself and on behalf of Ashogun Chieftaincy Family)Appellant(s)
AND
1. FED. MINISTRY OF ENVIRONMENT & URBAN DEVELOPMENT
2. DIRECTOR OF LANDS, URBAN & REGIONAL DEVELOPMENT, FED. MIN. OF ENV., HOUSING & URBAN DEVELOPMENT
3. ATT. GEN. AND MINISTER FOR JUSTICE, FED. MINISTRY OF JUSTICE
4. OBA BABATUNDE ADEKUNLE LAWAL – The Onigbanko Of Igbanko Land
AND
1. CHIEF OF ARMY STAFF, FED. REPUBLIC OF NIGERIA
2. GENERAL OFFICER COMMANDING, 81 MECHANIZED DIVISION, NIGERIAN ARMY, LAGOS. (Interested parties/Applicants)Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated the 27th of October, 2010, filed on 28th of October 2010, and brought under Order 7 Rule 2 of the Court of Appeal Rules 2007; Section 243 of the 1999 Constitution of the Federal Republic of Nigeria and under the inherent jurisdiction of this court, the Applicants herein prayed for the following orders:-
“1. AN ORDER for extension of time within which the Applicants as Interested Parties in this Appeal shall apply to be joined, in this Appeal as Respondents.
2. AN ORDER granting leave to the Applicants as Interested Parties to be joined in this appeal as Interested Respondents.
3. AN ORDER joining the Applicants as Respondents in this Appeal.
AND FOR SUCH order or further orders as the Honourable court may deem fit to make in the circumstances”.
In support of this application is a 16 paragraphs affidavit deposed to by Musa Usman Ibrahim Esq., a legal practitioner in the law firm of M. U. Ibrahim & Co., Solicitors to the Applicants. One exhibit, marked Exhibit A is annexed to the said affidavit.
In opposition to this application, the 1st Respondent filed a 12 paragraph counter affidavit deposed to by Chief Shehu Lawal, the Appellant/Respondent in this case. Attached to the counter affidavit are four exhibits marked SL1, SL2, SL3 and SL4 respectively.
Upon receipt of the 1st Respondent’s counter affidavit, the Applicants filed a reply affidavit which was deposed to by Lt. Col. Redley Japhet Alexander, an Army Officer and a Legal Practitioner in the services of the Applicants. Exhibits AA1 and AA2 are annexed to the further or reply affidavit.
At the hearing of this application on 26th October, 2011, the learned counsel for the Applicants moved the application and relied on both affidavits filed in support of the motion. He also relied on the exhibits attached. Harping on the need for all necessary and proper parties to be joined in this matter, he referred to the recent case of G. M. Enterprises Ltd. v. C. R. Investment Ltd. (2011) 14 N.W.L.R. (pt.1266) 125 and urged this court to grant this application. He then moved in terms of the motion paper.
In his reply, the learned counsel for the 1st Respondent to this application submitted that this court has no jurisdiction to join the applications to this appeal. He gave two reasons for taking this position. The first is that the Applicants do not have any interest in the matter whatsoever. That an interested party can only appeal to the Court of Appeal under Section 243 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He refers to the case of Adeosun v. Akinyemi (2007) 4 N.W.L.R. (pt. 1023) 47 at 61 paras F-H; Bello v. INEC (2010) 3 MJSG 1 at 25.
He submitted further and gave as another reason for urging this court to refuse the application that since this appeal is an interlocutory appeal and the main suit is still pending at the court below, there is no deposition in the affidavit in support that the Applicants have sought the leave of the lower court to be joined and were refused. He urged this court to dismiss this application.
P. C. Ofor Esq. and Ibrahim Bawa Esq., both learned counsel representing the other Respondents to this application told the court that they do not oppose the application at all.
By way of a rejoinder, M. U. Ibrahim Esq., learned counsel for the Applicants, referred to Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria cited by G. C. Anyafulu Esq., counsel for the 1st Respondent and submitted that the section is quite clear and supports the Applicant’s case.
It is trite and a very fundamental principle of law that where it is apparent to a court that any person not being a party in a case may eventually be liable, either in whole or in part, it may be necessary to allow such person to be joined as a party to the suit. The main reason for this is to make such a party to be bound by the outcome or result of the action.
See Green v. Green (1987) 3 N.W.L.R. (pt.61) 480; G. M. Enterprises Ltd. v. C. R. Investment Ltd. (2011) 14 N.W.L.R. (pt.266) 125.
It is commonsensical that all persons who may be affected by an order of court in respect of any matter before it, as much as is practicable, be made parties in the suit. Whether they are proper parties, desirable parties or necessary parties, the result or effect is the same. 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 the 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.
See Green v. Green (Supra).
In determining whether to join a party to a suit or not, the court ought to peruse the pleadings or the affidavit of the parties to the suit. In the instant case, the parties seeking to be joined have stated in their affidavit in support of the application that they are presently in effective control and possession of the land, the subject matter of this appeal. Paragraphs 4 – 14 of the supporting affidavit capture the reason why the Applicants are seeking to be joined at this stage. I shall reproduce the relevant paragraphs here under:-
“4. That the large track or expense of land in issue in Suit No. FHC/L/CS/5386/2008 is the same large expanse of land in issue in Suit No.FHC/L/CS/468/2009.
5. That the Plaintiff/Applicant in this Appeal is the same Plaintiff in Suit No. FHC/L/CS/5386/2008 and in suit No. FHC/L/CS/468/2009 the subject matter of this Appeal, attached and marked Exhibit ‘A’ is the Writ of Summons in Suit No. FHC/L/CS/5238/2008.
6. That is was when the Plaintiff/Applicant in this Suit filed his reply to the 4th Respondent/interested party statement of Defence and counter claim in suit No. FHC/L/CS/5386/2008 as the 5th Defendants thereof that the Applicants herein got to know that suit No. FHC/L/CS/468/2009 was pending. The Plaintiff/Appellant in this suit filed suit No.FHC/L/CS/468/2009 a case involving same piece of land and Default Judgment had indeed been delivered in default of appearance in suit No. FHC/L/CS/468/2009.
7. That we conducted a search in the case file in Suit No. FHC/L/CS/468/2009 in preparatory to our application for joinder and setting aside the Default Judgment that was obtained behind the backs of the Applicants herein and found out that the 5th Defendants in suit No. FHC/L/CS/5386/2008 who is the 4th Respondent in this Appeal had already applied and the Default Judgment was set aside.
8. That the Appellant as plaintiff in suit No.FHC/L/CS/5386/2008 served us with a process in suit No. FHC/L/CS/5386/2008 on the 7th day of July, 2010 while going through the process, I discovered that there is a pending Appeal filed by the Plaintiff/Appellant against the ruling or order setting aside its purported Default Judgment before this Honourable Court in Suit No. FHC/L/CS/468/2009.
9. That the counsel to the Applicant (Chief of Army staff, and the Nigeria Army) in suit No. FHC/L/CS/5386/2008 informed the Applicants of the development and the need to be joined as Respondents in this Appeal whilst if not joined the pronouncement of this Honourable will affect the interest of the Applicants one way or the other.
10. That the Applicants (the Chief of Army staff and the Nigeria Army) after due deliberation instructed us to apply for them to be joined in this Appeal as Respondents.
11. That it was due to administrative changes in the Nigeria Army for the approval of the instructions to apply to be joined in the Appeal that the Applicants could not bring this Application before now.
12. That the Applicants are in possession of the land subject matter of this Appeal and are in occupation of same till date.
13. That the Applicants are both necessary and desirable parties for the effectual determination of this Appeal.
14. That joining the Applicants as Respondents in this Appeal will not prejudice the interest of Plaintiff/Appellant in this Appeal whatsoever and however”.
These paragraphs of the supporting affidavit show that the Appellant/Respondent herein has dragged the Applicants herein before the Federal High Court in Suit No. FHC/L/CS/5386/08 for declaration of title over the same piece of land at Ashogun Village, Satellite Town, Lagos. See Exhibit A annexed to the supporting affidavit. However, in Suit No. FHC/L/CS/468/2009 which gives birth to this appeal and which is on the same parcel of land, the names of the Appellants are conspicuously absent. In the process, a default Judgment was obtained in Suit No. FHC/L/CS/468/2009. However, the 4th Respondent herein as an interested party got the default Judgment set aside. The Appellant/Respondent is not satisfied with the decision of the court below which set aside the default Judgment and that is why there is this appeal. The Applicants, becoming aware of the state of affairs have applied to be joined at this stage.
The Appellant/Respondent has stated in his counter affidavit that the Applicants have no interest whatsoever on this land and as such are not entitled to be joined at all. Relying on Exhibits SL1, SL2 and SL3, the Appellant/Respondent has stated that the Applicants have already been directed by the Hon. Attorney General of the Federation to quit the land in dispute. However, in a reply affidavit, the Applicants have exhibited a document marked Exhibit AA2 to show their interest on the land in dispute.
At this stage, it is not the duty of this court to decide on the merit or relevance of these documents to the substantive matter. Rather, they are just documents to establish the possibility of the Applicants having an interest in the matter.
From the affidavit and counter affidavit filed in this case, including the reply affidavit and all the exhibits annexed, I am of the view that the Applicants are not only interested parties but necessary parties to this proceeding. The desirability of the Applicants to this suit is anchored on the fact that they are presently occupying the land, the subject matter of this suit and by Exhibit AA2 to their reply affidavit, are laying claim to the said land. Secondly, although the Appellant/Respondent had averred that the Applicants have no interest in the land, he had sued the Applicants in Suit No. FHC/L/CS/5386/08 in respect of the said land, which case is still pending. I think it is necessary to join the Applicants in order that whatever order to be made in the appeal before this court or the matter pending at the court below, they should be bound by it.
The Applicants had brought this Application pursuit to Section 243 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), amongst other relevant rules of court. Under Section 243(a) of the said constitution, a party who is interested in any civil matter may seek leave from the Federal High Court, State High Court or the Court of Appeal in order to appeal against a decision which he was originally not a party at the hearing stage. There is no provision for joinder of an interested party under Section 243(a) of the Constitution of the Federal Republic of Nigeria 1999.
All that the Section grants to an interested party is a right to appeal against a decision of a court which he was not a party. For the avoidance of doubt, Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) states:-
“243 Any right of appeal to the Court of Appeal from the decision of Federal High court or a High court conferred by this constitution shall be –
a. exercisable in the case of civil proceedings at the instance of a party thereto, or will the leave of the Federal High court or the High court or the court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this constitutions of any power conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or person as may be prescribed”.
Clearly, the section confers a right of appeal to “any other person having an interest in the matter” and not the joining of a party to a suit at the hearing stage. The learned counsel for the Appellant/Respondent had argued that since the Applicants did not make their application to be joined at the court below, they cannot be heard here. In normal circumstances, a party seeking to be joined ought to do so before the court hearing the matter. The instant case has a peculiar circumstance which must be given a peculiar treatment. The court below had given a default Judgment which was applied to be set aside by another Interested party. It was accordingly set aside. But before the present Applicants could go before the lower court to file their joinder application, the Appellant/Respondent had appealed to this court. Were they expected to stand by and watch the proceedings after becoming aware of the suit? The apex court had held in Green v. Green (Supra) that a person whose interest is involved or is in issue in an action and who knowingly choose to stand-by and let others fight his battle for him is equally bound by the result in the same way as if he was a party.
Under Order 9 Rule 14(3) of the Federal High Court (Civil Procedure) Rules 2009, a Judge may order that the name of any party who ought to have been joined or whose presence before the court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings be added. It is true that this matter is pending at the court below in view of the fact that the court set aside the default Judgment. That is where the Applicant should apply to be joined. But the order setting aside the default Judgment is now before this court on appeal. Should the Applicants who have shown sufficient interest in the matter and whose interest will be affected adversely by the outcome of this appeal fold their arms and watch the proceedings? I do not think so. It is in the interest of Justice that the Applicants be joined in this matter.
It is trite that where the determination of an action between two parties would directly affect a third party’s legal rights or his pecuniary interest as in this case, the court has a discretion to order the third person to be added as a party. See Green v. Green (Supra).
I am satisfied that the Applicants herein have shown sufficient interest in this matter and ought to be joined in the prosecution of this appeal. This application is meritorious and is hereby granted. Accordingly, leave is hereby granted the Applicants to be joined as interested Respondents in this appeal. The Applicants shall henceforth be the 5th and 6th Respondents accordingly.
SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in draft the lead ruling of my learned brother J. I OKORO JCA, I agree that the application is meritorious and it also granted by me.
I abide by the order contained in the lead ruling.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having considered the nature and circumstances surrounding the instant application, the submissions of the respective learned counsel thereon, I have no hesitation in concurring with the reasoning and conclusion reached in the lead ruling just delivered by my learned brother Okoro, JCA, to the conclusive effect that the application is meritorious.
Without any much ado, I hereby grant leave to the Applicants to be joined in the substantive appeal as the 5th and 6th Respondents, respectively.
No order as to costs.
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Appearances
G. C. Anyafulu Esq. for Appellant/RespondentFor Appellant
AND
1. P. C. A. for Esq. for 3rd Respondent
2. Ibrahim Bawa Esq. with W. I. Salami Esq. for 4th Respondent
3. M. U. Ibrahim Esq. for Interested Party/ApplicantFor Respondent
