EZIKE & ANOR v. EZIKE
(2022)LCN/16543(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/OW/109/2021
Before Our Lordships:
Rita NosakharePemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim WakiliJauro Justice of the Court of Appeal
Between
1. MR. IFEANYI EZIKE 2. ARINZE BENNETH EZIKE APPELANT(S)
And
MRS. IJEOMA EZIKE RESPONDENT(S)
RATIO
FAILURE TO JOIN AS A PARTY A PERSON OUGHT TO HAVE BEEN SO JOINED GIVES RISE TO THE MISTAKE OF NON JOINDER OF A PARTY
The Court suomotu was at liberty to join the claimant’s husband. In the case of BELLO V. INEC & ORS (2010) LPELR-767(SC) the Court in that case held inter alia:
‘The failure to join as a party a person who ought to have been so joined gives rise to the mistake of non-joinder of party. The fact that a necessary party to the action has not been joined will not render the action a nullity … the Court cannot dismiss a suit because a party who ought to have been joined was left out.’ RITA NOSAKHARE PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Abia State, Aba Judicial Division in Suit No. A/62/2019 delivered on the 23rd day of February, 2021.
SYNOPSIS OF FACTS
The said Ruling was delivered sequel to the preliminary objection raised by the Appellants herein.
The Court, according to the Appellants, wrongfully dismissed the preliminary objection, relying on mistake of non-joinder of party. The Appellant, being dissatisfied with the Ruling, and desirous of appealing it, filed a Notice of Appeal on the 9th day of March 2021 with two (2) Grounds of Appeal – pages 114-117 of the Record of Appeal.
The Ruling appealed is at pages 111-113 of the Record of Appeal.
The Appellants filed their brief of argument on the 22nd day of June, 2021. It is settled by John C. Okoli Esq.
The Respondent filed his brief of argument on the 16th day of July, 2021. It is settled by Chief Okey Obikeze Esq.
The Appellants distilled a sole issue for determination from the Grounds of Appeal viz:
“WHETHER IN THE PARTICULAR CIRCUMSTANCES OF THE APPLICATION TODISMISS/STRIKE OUT THE SUIT, THE LEARNED TRIAL JUDGE WAS RIGHT TO RELY SOLELY ON NON-JOINDER OF PARTIES TO DISMISS THE PRELIMINARY OBJECTION PREDICATED ON GROUNDS OF FATAL FAILURE TO INITIATE THE CASE BY MANDATED DUE PROCESS”.
The Respondent distilled a sole issue for determination.
“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN DISMISSING THE APPELLANT’S MOTION ON NOTICE DATED 11TH DAY OF NOVEMBER 2020 AND FILED ON THE 12TH DAY OF NOVEMBER 2020”.
On the 7th day of February 2022, the parties adopted their respective briefs of argument.
SOLE ISSUE
The Appellants submit that it is not within the permissible province of the Court to ignore a party’s case, or treat same in isolation of facts in issue or matters agitated by the parties.
The Court below, he submits, erred in law when holding that the complaints was predicated on non-joinder of a necessary party, when in actual fact, the Appellants complained against commencing the suit without compliance with the condition precedent.
That the context of this case as formulated and presented by the Respondent is that the owner of the property is mentally incapacitated and failure to sue as a guardian/next friend and to endorse same on the originating processes is incurably fatal and consequently renders the suit to be struck out.
The Respondent submits that the argument of the Appellants that the Respondent has a duty to make Pius Obiora Ezike party in the matter and thereafter obtain leave of Court to appoint a guardian to sue or defend him as an incapacitated party is not supported by law.
RESOLUTION
The complaint of the Defendants is that Pius Obiora Ezike ought to be a party in the suit in the Court below, as a necessary party otherwise the suit should be struck out or dismissed for non-joinder.
According to the Court below, the fulcrum of the Defendants contention is that notwithstanding the Claimant/Respondent’s assertion that the owner of the property is physically and mentally incapacitated, the Claimant/Respondent did not make Pius Obiora Ezike a party, neither was leave obtained to appoint a guardian to sue for or defend Pius Obiora Ezike as mandated by law.
And that this is a fundamental defect touching the competence of the suit as it touches on jurisdiction.
A cursory look at the process of Court, including the Record of Appeal dated 24th day of March 2021 encapsulating the Notice of Appeal, the parties therein are:-
Ifeanyi Ezike
Arinze Benneth Ezike as Appellants
And Mrs. Ijeoma Ezike as Respondent – page 114 of the Record of Appeal.
The said Pius Ezike’s name is not on the Record of Appeal. The respondent (Claimant at the Court below) had in paragraph 1 of her statement of claim filed on the 15th day of March 2019 stated thus:
‘The claimant is a pharmacist and works at Rufus Obi Pharmacy Ltd at No. 140 Aba-Owerri Road Aba, Abia State. The claimant is married to Mr. Pius Obiora Ezike and she resides at No. 242 Aba-Owerri Road, Aba, Abia state. The marriage between the claimant and Mr. Pius Obiora Ezike is blessed with two children, namely: Nnaemeka Obiora Ezike aged 12 years and Adaobi Ezike aged 9 years. The claimant maintains this action for herself and the nuclear family Pius Obiora Ezike’.
In paragraph 6 she avers thus:
‘In about the year 2015, the claimant’s husband became sick. He had stroke. The stroke by the claimant’s husband resulted in his having impaired body and reasoning. The defendants took advantage of the health challenges of the claimant’s husband and the fact that her children are still minors to start laying claim to the management, control and ownership of the properties of Pius Obiora Ezike without any iota of right in that regard’.
The claimant in the lower Court did not specifically say that she was suing in a representative capacity. She only indicated her name in the process. However, she was at liberty to seek joinder of her husband.
The Court suomotu was at liberty to join the claimant’s husband. In the case of BELLO V. INEC & ORS (2010) LPELR-767(SC) the Court in that case held inter alia:
‘The failure to join as a party a person who ought to have been so joined gives rise to the mistake of non-joinder of party. The fact that a necessary party to the action has not been joined will not render the action a nullity … the Court cannot dismiss a suit because a party who ought to have been joined was left out.’
From the pleadings in the statement of claim, the claimant has unequivocally stated that her husband was ill and with a stroke which we all know is a devastating ailment, as it renders the patient incapacitated.
I am of the view that the Court below was right to have dismissed the motion on notice which the defendant filed on the 12th day of November 2020.
The appeal is misconceived. It fails and the ruling of the High Court of Abia State, Aba Judicial division delivered on the 23rd day of February 2021 in suit No. A/62/2019 is hereby affirmed.
N50,000 cost in favour of the respondent.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in advance the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where the facts leading to this appeal and the issues in contention have been set out.
I agree that this appeal is lacking in merit and dismiss it, in consequence affirming the decision of the lower Court.
I concur with the quantum of costs awarded.
IBRAHIM WAKILI JAURO, J.C.A.: I have had the preview of reading in draft the judgment delivered by my learned brother RITA N. PEMU, JCA (Presiding Justice). The appeal is indeed misconceived and must therefore fail. I hereby dismiss same and affirm the ruling of the lower Court of 23rd day of February, 2021.
Appearances:
John C. Okoli, Esq. For Appellant(s)
C. R. Ariguzo, Esq. For Respondent(s)
