GANI-TARZAN MARINE ENTERPRISES LIMITED v. CARAVELLE RESOURCES AND INVESTMENT LTD & ANOR
(2011)LCN/4467(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2011
CA/L/10/09
RATIO
REPLY BRIEF: POSITION OF THE LAW ON THE TIME FRAME WITHIN WHICH AN APPELLANT IS ENTITLED TO FILE A REPLY BRIEF IN RESPECT OF ALL THE NEW ISSUES ARISING FROM THE RESPONDENTS’ BRIEF
By virtue of order 17 Rule 5 of the Court of Appeal Rules 2007, the Appellant was entitled to, within 14 days of the service thereupon of the Respondents’ brief, file a reply brief which shall deal with all new issues arising from the Respondents’ brief. PER IBRAHIM MUHAMMED MUSA SAULAWA, J.C.A.
PARTIES TO AN ACTION: DISTINCTION BETWEEN PROPER PARTIES, DESIRABLE PARTIES AND NECESSARY PARTIES
The word party or parties is a correlative term. A distinction has been made between proper parties, desirable parties and necessary parties, respectively. 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 dealt with. That’s to say, the issue or question to be determined in the matter between the existing parties should be one which cannot be properly settled unless they are parties to the action. See AMONU VS. RAPHEAL TUCK & SONS (1956) 1 WN 3571; SETTLEMENT CORPORATION VS HOSHSCHILD (NO. 2) (1959) 1 WLR 1664; RE VANEVILLS TRUST (1971) AC 812; RE – VANDERVELLE (1969) 3 ALL ER 496; GREEN VS GREEN (supra) at 493 paragraph D- F. PER IBRAHIM MUHAMMED MUSA SAULAWA, J.C.A.
JOINDER OF PARTIES TO AN ACTION: FUNDAMENTAL REASON NECESSITATING THE JOINDER OF A PERSON AS A PARTY TO AN ACTION OR SUIT; WHETHER A PERSON WHOSE INTEREST IN A SUIT MAY BE AFFECTED BY THE RESULT THEREOF BUT WHO KNOWINGLY CHOSE TO STAND BY WILL EQUALLY BE BOUND BY THE RESULT IN THE SAME WAY AS IF HE WERE A PARTY
It is a trite and well settled doctrine that one of the fundamental reasons necessitating the joinder of a person as a party to an action or suit is to make him bound by the consequence or result of the action. This common law doctrine was eloquently enunciated in the case of AMONU VS. RAPHEAL TUCK & SONS LTD (1959)1 QB 357 at 380. per Devlin. In the case of GREEN VS. GREEN (Supra) at 492 paragraphs C – E, the Supreme Court was reported to have authoritatively held, inter alia, that – under our law also a person whose interest is involved or is in issue in an action and who knowingly chose to stand by and let others fight his battle for him is equally bound by the result in the same way as if he were a party, see INRELART (1986) 2 CH D. 788 LEEDS VS. AMHERST 16 CJ. CHS, ESIAKO VS OBIASOGWU 14 WACA 178, ABUAKWA VS ADANSE (1957) “3 ALL ER. 559.” per Oputa, JSC. PER IBRAHIM MUHAMMED MUSA SAULAWA, J.C.A.
JOINDER OF PARTIES TO AN ACTION: WHETHER WHERE IT IS SO APPARENT TO A COURT THAT ANY PERSON NOT BEING A PARTY IN THE CASE MAY EVENTUALLY BE LIABLE, IT MAY UPON AN EX-PARTE APPLICATION ALLOW THAT PERSON TO BE JOINED AS A THIRD PARTY
It is indeed a trite general principle, that where it is so apparent to a court that any person not [being] a party in the case may eventually be liable, either in whole or in part, it may upon an ex-parte application allow that person to be joined as a third party by any of the defendants. See order 13 Rule 19(1) of the High court of Lagos state (civil procedure) Rules, 2004. PER IBRAHIM MUHAMMED MUSA SAULAWA, J.C.A.
JOINDER OF PARTIES TO AN ACTION: WHETHER WHERE A DEFENDANT TO A SUIT, BY HIS PLEADINGS, RESTS HIS DEFENCE ON THE ACT OF A THIRD PARTY HE HAS THE ONEROUS DUTY TO JOIN THE SAID THIRD PARTY AS A CO-DEFENDANT TO THE SUIT
…it’s no longer in doubt that the rule is well settled that where a defendant to a suit, by his pleadings, rests his defence on the act of a third party, he has the onerous duty to join the said third party as a co-defendant to the suit. See OSHO VS. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (Pt. 184) 157 at 188 paragraphs B – C… PER IBRAHIM MUHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MUHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
GANI-TARZAN MARINE ENTERPRISES LIMITED Appellant(s)
AND
1. CARAVELLE RESOURCES AND INVESTMENT LTD
2. ADETUNJI ADEGBOYEGA ADEBAYO Respondent(s)
IBRAHIM MUHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Lagos state High court, Lagos Judicial Division, holden at Lagos in suit No. LD/962/2005. By the said ruling, which was delivered by the Hon. Justice B.A. Oke-Lawal on June 17, 2008, the Appellant application, dated May 5, 2007, seeking to join the National Inland waterways Authority as a co-defendant to the suit was refused. Not unnaturally, the Appellant was utterly dissatisfied with the lower court’s decision. Thus, resulting in filing the instant appeal.
FACTS & CIRCUMSTANCES OF THE CASES:
The genesis of the present appeal dates back to June 7, 2005. That’s the day on which the two Respondents filed in the court below a writ of summons against the Appellant claiming statutory right of occupancy over a parcel of land, measuring a total of 1062 a square metres, situate at Oyinkan Abayomi (formerly Queen’s) Drive, Ikoyi Lagos’ By the statement of claim thereof, dated May 19, 2005, the Respondents have claimed against the Appellant the following reliefs:
(i) A declaration that the statutory rights of occupancy over the piece or parcel of land comprised in the deed of lease dated 1st May 1995 and registered as No. 68 at page 68 in volume 14 of the Federal Lands Registry Ikoyi, Lagos belongs to the 1st claimant subject to the consent of the Honourable Minister of Housing and Urban Development.
(ii) An order setting aside any purported licence or temporary right of occupancy granted to the defendant over the said piece of land, same being illusory, invalid and void.
(iii) An order of perpetual injunction restraining the Defendant, its servants, agents or privies from further trespass into the land.
(iv) N500, 000.00 damages for trespass on the said land.
On July 19, 2005, the Appellant filed in the court below the statement of defence thereof, thereby not only denying the claim in its entirety, but also counterclaiming against the Respondents. The Appellant also filed on the same date a notice of preliminary objection, along with a written address. The preliminary objection was to the effect that the lower court has no jurisdiction to entertain the suit, by virtue of the provision of section 251(1) (p) and (N) of the constitution of the Federal Republic of Nigeria, 1999.
On March 17, 2007 the lower court, coram the Hon. Justice E. A. Lufadeju (Mrs.), delivered a ruling, overruling the preliminary objection in question. On May 18, 2007, the Appellant’s erstwhile counsel, Candide Johnson filed a notice of appeal to that ruling. However, on April 10, 2007 the Appellant changed its counsel from Candide Johnson & partners to Messrs Rickey Tarfa & co. of 538 Mainland way, Dolphin Estate, Ikoyi Lagos.
On May 9, 2008, the Appellant filed a motion ex-parte specifically praying for the following reliefs:
i. AN order granting leave to join NATIONAL INLAND WATERWAYS AUTHORITY as third party.
ii. AN order joining the NATIONAL INLAND WATERWAYS AUTHORITY as a third party.
iii. AN order directing the originating process in this suit is Served on the NATIONAL INLAND WATERWAYS AUTHORITY designated as third party.
The motion exparte was predicated on the following five grounds:
i. By virtue of Decree 13 of 1997, National inland Waterways Authority was established as a body corporate with perpetual succession to sue and be sued in its corporate,
ii. By virtue of the combined effect of provisions of section 9 (i) (j) and paragraph 5 of the second schedule to the Decree 13 of 1997, the NATIONAL INLAND WATERWAYS AUTHORITY is empowered to grant permit/license over the subject matter of the Claimant’s Claim;
iii. The NATIONAL INLAND WATERWAYS AUTHORITY is the primary grantor of the licence/permit unto the Defendant upon which the Defendant has acted.
iv. The title that passed by the said licence/permit was not contested by anybody before the Claimant’s action.
v. The NATIONAL INLAND WATERWAYS AUTHORITY is a proper, desirable, necessary party to be a third party in this suit at the instance of the Defendant.
On the part thereof, the Respondents filed a counter affidavit dated May 7, 2008, objecting to the motion ex-parte. The lower court, corum the Hon. Justice B.A. Oke-Lawal, delivered a ruling on June 7, 2008, thereby refusing the ex-parte application in question thus:
“Conclusively, I hold that the National inland waterways are not a necessary party to be joined as a defendant for the determination of the case, the motion therefore lacks substance and is accordingly dismissed as lacking merit.” See page 444 of the Record of appeal
As alluded to above, the instant appeal is against the aforementioned ruling of the lower court.
The original notice and grounds of appeal, dated June 17, 2008, are contained at pages 445 – 447 of the Record. The Appellant’s amended notice of appeal, initially filed on November 23, 2009, was deemed to have been properly filed and served on November 24, 2009.
BRIEFS OF ARGUMENT:
Parties filed and served their respective briefs of argument. The Appellant amended brief was filed on 27/01/2010, but deemed to have been properly filed and served on 28/01/2010. In response to the Appellant’s amended brief, the Respondents filed the amended brief thereof on 12/3/2010, but deemed to have been properly filed and served on 10/6/2010. The Appellant’s reply brief to the Respondents, amended brief was filed on 11/8/2010.
In the said amended brief thereof, the Appellant’s learned counsel Anthony Nwogbe Esq., has raised a total of three issues for determination, to wit:
“3:01 whether in the light of the facts and law presented by the Appellant in the below, the Appellant has not proved to the court the joinder of National inland Waterways Authority as a third party rather than be called as a witness, in view of the fact that the Appellant rests his defence on the act of the National inland Waterways Authority?
3:02 whether in the light of the facts and law presented by the Appellant, the Appellant has not proved that the Federal Government has an interest in this matter.
3:03 whether by virtue of law and facts presented by the Appellant, the Appellant has not proved to the court that National inland Water ways Authority is a necessary party.”
On issue No. 1, the Appellant’s learned counsel submitted, inter alia, that the court is required in all proceedings to admit and act on all legal evidence before it. And that where affidavit evidence is used, the court is bound to consider the annexed exhibit in support thereof. see OMEGA BANK (NIG.) PLC VS. OBC LTD (2002) 16 NWLR (PT. 794) 483 at 521 paras B – C; NEC VS. WODI (1989) 2NWLR (PT. 104) AT 455 PARAS. F – G.
According to the learned counsel, the Appellant’s affidavit in support of the motion for joinder and exhibits annexed there to, contained at pages 285 -300 of the record, were not considered by the lower court. Reference was made to sections 1, 2, 3, 4 & s of the Lands Titles Nesting, etc ACT, CAP. L. 7 Laws of the Federation of Nigeria, 2004 and sections 8, 9, 12 & 13 of the National Inland waterways ACT CAP. N 47 Laws of the Federation of Nigeria, 2004, by virtue of which the National Inland Waterways Authority had granted the Appellant the permit to operate its ferry services from five cowries creek at Oyinkan Abayomi Drive, opposite Kalabari Close, lkoyi. See paragraph a (viii) of the affidavit, contained at pages 285 – 290 of the record.
It was contended, that the lower court erred when it ruled that the National Inland waterways Authority should be made a witness and not a defendant. See GREEN VS. GREEN (1987) 3 NWLR (PT. 61) 480 at 492 – 493; order 13 Rule 19(1) of the High court of Lagos state (civil procedure) Rules, 2004; sections 1, 3, 4 & 5 of the Lands (Title vesting etc) ACT CAP. 47 Laws of the Federation of Nigeria, 2004; Section 9 of the National Inland Waterways Authority ACT; UBA PLC VS. ACB (NIG) LTD (2005) 12 NWLR (PT. 939) 232 of 267 – 268; RINCO CONST. CO. VS VEEPEE LTD (2005) 9 NWLR (PT. 929) 88 at 100 paras. A-B.
It was argued that once a defendant to a suit vests his defence on the act of a third party, it is proper to join him to the suit as a co- defendant. see OSHO vs. FOREIGN FINANCE CORPORATION (1991)4 NWLR (Pt. 184) 157 at 188 paras. B – C.
The Appellant had allegedly duly paid for the permit granted thereto by the National Inland waterways Authority (NIWA), as such the latter’s interest is equally at stake. The lower court is empowered to join the NIWA as a co-defendant. See GREEN VS. GREEN (supra) at 492 paras. C – E.
The court has been urged to resolve the issue No. 1 in favour of the Appellant, and accordingly hold that the NIWA should have been joined as a co-defendant.
on issue No. 2, it was submitted that paragraph 5 of the Respondents, statement of claim, at pages 3 – 4 of the Record, is to the effect that the piece of land along the back of the Lagos Lagoon was purportedly registered at the Federal Lands Registry, Ikoyi, Lagos. That, parties are bound by their pleadings. See JAZA VS BAMGBOSE (1999) 7 NWLR (Pt. 610) 182 at 191 paras G – H; NJOKU VS. EME (1973) 5 SC 291.
It was contended that the assigning of the land (in dispute) to the 2nd Respondent is illegal. See TIDEX (NIG.) LTD VS. NUPENG (19981 11 NWLR (Pt. 573) 203 at 277 para. F; UDOH VS OHMB (19931 7 NWLR (pt.304)?
It was equally contended that by virtue of sections 11, 12, & 13 of the National Inland Waterways Authority Act, the piece of land belongs to the Federal Government of Nigeria and NIWA, And that by virtue of section 251 (1) (q) & (r) (q) the 1999 constitution, it is the Federal High Court that has the competent jurisdiction to entertain the matter and not the Lagos State High Court. See NIG. BOKAN vs. BARUWA (1998) 8 NWLR (pt. 5601 96 at 107 – 108 paras. H – A.
The submission of the Appellant’s counsel on issue No. 3, is that by virtue of sections 12 & 13 of the NIWA Act, and section 2 of the Lands (Title Vesting etc) Act, the NIWA is a necessary party to the suit. See GREEN VS. GREEN (1987) 3 NWLR (pt. 61) 480.
The court has been urged to allow the appeal, set aside the ruling of the lower court, dated 17/6/08, and order the joinder of the National Inland Waterways Authority as a co-defendant to the suit in the court below, or declare the jurisdiction of the Federal High Court.
On the other hand, Emeka Okpoko Esq. has equally raised three issues in the Respondents’ brief to wit –
1. Whether in the circumstances of this case the National inland Waterways Authority should be joined as a party in the suit.
2. Whether having regards to facts and law, the Appellant has proved that the Federal Government has an interest in this matter.
3. Whether by virtue of law and facts presented, the Appellant has proved that the National inland waterways Authority are a necessary party.
Curiously enough, pages 2 – 4 of the Respondents’ brief exclusively deal with the alleged incompetence of Ground One of the Appellant’s ground of appeal. It was submitted that the said ground one of appeal is indeed incompetent, thus ought to be struck out. The reasons being that the ground of appeal is the finding and not the decision of the lower court. And that an appeal shall lie from the decision of a High Court, by virtue of sections 240 and 241 of the 1999 constitution. See also Order 5 Rule 2(1) of the Court of Appeal Rules, 2007. The two particulars to the sole ground of appeal are allegedly bad and offended the provisions of order 6 Rule 2(2) & (3) the Court of Appeal, Rules 2007. See OKWUODI VS. SOWUNMI (2004) 2 NWLR (Pt. 836) 1 AT 22 PARA. D – W: SOSANYA VS. ONADEKO (2005) 8NWLR (Pt. 926) 185 at 209 – 216; STERLING CIVIL END. LTD VS. YAHAYA (2002) 2 NWLR (Pt. 750) 1 at 15 to 16 paras. G – B; KANO ILE PRINTERS PLC VS GLOEDE & HOFF NIGERIA LTD (2002) 2 NWLR (Pt. 751) 420 at 444 paras. E – F. respectively.
Thus, the court has been urged upon to strike out the sole ground of appeal.
The alternative submission of the learned counsel is contained at pages 4 – 13 of the Respondents’. Regarding the settled principles on joinder of parties, the following authorities were cited and relied upon: (1) UBA PLC VS. ACB NIG. LTD (2005) 12 NWLR (Pt. 939) 232; BUHARI VS INEC (2008) 4 NWLR (PT. 549) 1078 at 654; GREEN VS GREEN (1987) 3 NWLR (Pt. 61) 480; UKU VS OKUMAGBE (1974) 1 ALL NLR 475; ADEFARASIN VS DAYEKH (2007) 11 NWLR (PT. 1044) 89 at 94
It was contended that from the reliefs sought by the Appellant (counterclaimant), the presence of the party sought to be joined would not be required even to prove the counter claim thereof. It was argued, that the cases of OMEGA BANK NIG PLC OBC LTD, NEC VS WODI, GREEN VS GREEN AND OSHO VS FOREIGN FINANCE CORP. were cited out of con by the Appellant and apply against the Appellant. The court has been urged to also discountenance the Appellant’s contention on order 1.3, Rule 19(1) of the High Court (civil procedure) Rules 2004, and accordingly resolve the issue in favour of the Respondents.
On issue No. 2, the Respondents’ submission on issue No. l was adopted. It was further submitted, that it would be unreasonable or ridiculous to treat all issuers of licences or certificates of occupancy as necessary parties for the purpose of determining the validity of licence. The court has been urged to resolve this issue in favour of the Respondent as well and accordingly dismiss the appeal.
ON THE ISSUE OF COMPETENCE OR OTHERWISE OF GROUND ONE OF THE GROUNDS OF APPEAL VIS-‘A-VIS THE APPELLANT REPLY BRIEF:
Without much ado, I would want to point out that the argument on the alleged in-competence of ground one of the grounds of appeal, canvassed under issue one (pages 2 – 4 of the Respondents’ brief), is most innocuous, to say the least. And the reason is quite obvious. That argument is characteristically a preliminary objection. Unfortunately for the Respondents, however, the provision of order 10 of the Court of Appeal Rules, 2007 has apparently not been complied with prior to incorporating the preliminary objection in the said brief.
By virtue of order 10, Rule 1 of the Court of Appeal Rules (supra), a respondent wishing to rely upon a preliminary objection to the hearing of the appeal, shall accord the appellant three clear days notice thereof before the hearing date, setting out the grounds of objection. Thus, in the absence of leave of court (granted) to the Respondents to raise a preliminary objection to the competence of the appeal, the argument incorporated in pages 2 – 4 of the Respondents’ brief is incompetent. The argument in question is accordingly hereby discountenanced.
As alluded to above, the Appellant had filed a reply brief on 11/8/2010, in response to the Respondents’ brief. Ironically, however, the said reply brief was apparently filed out of the statutory time limit of fourteen days accorded to the Appellant.
By virtue of order 17 Rule 5 of the Court of Appeal Rules 2007, the Appellant was entitled to, within 14 days of the service thereupon of the Respondents’ brief, file a reply brief which shall deal with all new issues arising from the Respondents’ brief. Unfortunately for the Appellant, the reply brief thereof in question must be deemed to be abandoned for having been filed out of the statutory time limit without the leave of Court.
The Appellant’s application, seeking to file a reply brief, was evidently withdrawn and struck out on 27/10/2010. That’s four months after the Respondents’ brief was deemed to have been properly filed and served. Up to the February 17, 2011, when the appeal was heard, no leave was sought by the Appellant to extend time (there to) to file the reply brief. Thus, by implication, the Appellant has no validly subsisting reply brief. The reply brief in question ought to be, and same is hereby discountenanced. In the circumstance, the appeal shall be determined on the basis of the Appellant’s and Respondents’ briefs of argument alone.
As a result of a calm perusal of the issues formulated in the two respective briefs, I am of the firm view that the issues are not mutually exclusive. However, it’s my considered view that there are only two issues that are germain to determination of the appeal, viz:
1. Whether or not the Appellant has established before the lower court that the National Inland waterways Authority was a necessary party to the suit.
2. Whether or not the trial court was right in refusing to join the National Inland waterways Authority to the suit.
It’s my belief that the above two issues have adequately addressed all the relevant points raised in the three issues formulated in the respective briefs of the parties.
ISSUE NO. 1:
Issue No. 1 raises the question of whether or not the Appellant has established in the court below that the National Inland waterways Authority was a necessary party to the suit in question.
Interestingly, the issue of joinder, non-joinder and misjoinder of parties has recurrently been agitated by parties in the courts. There is undoubtedly a plethora of authorities as regards this particular branch of the law. However, it must be acknowledged that the difficulty that usually arises is regarding the application of those trite principles and dicta to the facts and circumstances of any particular case. See GREEN VS GREEN VS (1987) 3 NWLR (Pt. 61) 480 at 488 para. B. per Oputa, JSC.
His Lordship, the Hon. Justice Oputa, has in GREEN VS. GREEN (supra) alluded to four categories of cases in which the issues of joinder, or non-joinder of parties is treated differently, viz:
(i) Where a party to an existing (pending) suit applies to join another person or persons as parties;
(ii) Where an intervener applies to join on existing suit;
(iii) Where the court itself suo motu, opts to join parties; and
(iv) Where a total failure either by the parties or on intervener or the court to join. See GREEN VS. GREEN (Supra) or 488 paragraphs B – C.
In view of the pleadings of the parties, there is no doubt that the instant case has to do with the first category listed there above. The word party or parties is a correlative term. A distinction has been made between proper parties, desirable parties and necessary parties, respectively. 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 dealt with. That’s to say, the issue or question to be determined in the matter between the existing parties should be one which cannot be properly settled unless they are parties to the action. See AMON VS. RAPHEAL TUCK & SONS (1956) 1 WN 3571; SETTLEMENT CORPORATION VS HOSHSCHILD (NO. 2) (1959) 1 WLR 1664; RE VANEVILLS TRUST (1971) AC 812; RE – VANDERVELLE (1969) 3 ALL ER 496; GREEN VS GREEN (supra) at 493 paragraph D- F.
The learned trial judge’s finding, at page 443 of the record of appeal, is to the effect that by the statement of claim, statement of defence, counter claim of the parties, the Federal Government, the Local Government and the National Inland Waterways have no legal interest in the matter. Thus, the learned trial judge came to the conclusion that –
“The National inland Waterways (Authority) is not a necessary party to be joined as a defendant for the just determination of the case. The motion therefore lacks substance and is accordingly dismissed as lacking merit”
See page 444 of the Record.
According to the Appellant’s learned counsel, at page 4 of the brief thereof, the Appellant’s affidavit supporting the application and the exhibits attached thereto were not considered by the trial court. Yet, the said affidavit and exhibits have allegedly disclosed the Appellant’s interest therein.
I have deemed it appropriate to, at this point in time; refer to both the affidavit and the counter affidavit regarding the application in question. The six paragraphed affidavit supporting the said motion deposed to by David Udoh, is contained at pages 285 – 288 of the Record. Undoubtedly, the affidavit is to some extent a rehearse of the statement of claim contained at pages 3 – 6 of the Record. Paragraphs 4, i, ii, iii, iv, v, vii, xi, xii. (b), (c), (d), (e) of the affidavit are to the following effect:
4. That I was informed by Mr. G.S. Balogun the managing Director, Chief Executive Officer of the Defendant/Applicant’s company on 13th February 2007 in chambers at about 3pm and I verily believed him as follows that;
(i) Sometime in 1989, the Defendant began to use the foreshore of the Oyinkon Abayomi Boat/bus stop to operate its boat services in order to support the Federal Government Mass Transit Programme.
(ii) in order to formalize and regularize its occupation of the shoreline, the Defendant on 24th April, 1990 applied to the Eti-Osa Local Government Area, being the Arm of Government in charge of the inland eaters at that time for a permit to construct a loading and discharging jetty along five cowries creek. Attached and marked AA is a copy of the permit granted by the Eti-Osa Local Government Area after all rents, dues, taxes, levies have been paid.
(iii) Following the said grant, the Defendant/Applicant further expended monies in reclaiming and modifying the land to suit its business which include boat transportation, mooring and storage facilities.
(iv) On June 3rd 1997, the inland Waterways Department of the Federal Ministry of Transport by a letter dated June 3, 1997 informed the Defendant/Applicant that by virtue of NAVIGABLE WATERWAYS (DECLARATIONS) DECREE NO. 56 of 1988, the management and control of Lagos Lagoon shore fronting five Cowries Creek, where the applicant carries on its business, was vested in the ministry. The letter is attached and marked exhibit AB.
(v) The Defendant/Applicant then applied to the Federal Ministry of Transport (inland Waterways Department) for grant of a licence. Attached and marked exhibit AC is a copy of the said application.
(vii) The Defendant/Applicant was to reapply to the National inland Waterways Authority on 15th April 1998 for permit to use the said piece of land for its business. Attached and marked AD is a copy of the letter of application.
(xi) The Defendant/Applicant later reclaimed the land by expending lots of money and facilities and the total land reclaimed amounted to 1680.38 Sq Mt as at 12th May, 2005.
(xii) The Defendant/Applicant has been in possession since 1989, and they have enjoyed uninterrupted, undisturbed, quiet possession until the claimant’s insurgence on the land.
b. by virtue of Section 1(2), 8, 9 & 13 of the Decree, NATIONAL INLAND WATERWAYS AUTHORITY is a body corporate with perpetual succession and a common seal, and may sue and be sued in its corporate name and these provisions authorized the NATIONAL INLAND WATERWAYS AUTHORITY to grant land notwithstanding the provisions of the land Use Act 1978 or other law;
c. from the totality of the above, the land which is the subject matter of this suit was the property of NATIONAL INLAND WATERWAYS AUTHORITY which has been granted to the Defendant/Applicant;
d. if there are rival claimants over the property, it is only the NATIONAL INLAND WATERWAYS AUTHORITY who can resolve such claim;
e. it will be in the interest of justice to join NATIONAL INLAND WATERWAYS as a third party in this suit.
On the other hand, the Respondents’ 18 paragraphed counter-affidavits is contained at pages 309 – 311 of the Record. It was deposed to by one Jude Nwaokolo on 07/5/08. Most especially, paragraphs 6(i), (ii), (iii), (iv), (v), (vi), 7, 8, 9, 15, & 16 of the counter affidavit are to the following effect:
6 That with further reference to paragraphs 5 (d) to (e) 1 state:
(i) The land the subject matter of this action is a lease over Federal Government land granted to the claimant,
(ii) The National inland Waterways Authority sought to be joined granted no lease to the defendant and has no power to grant a leases over Federal Government land nor did it purport to grant a lease to the defendant.
(iii) The National inland Waterways Authority can only grant licences (not lands or leases) and over lands over which there are no holders of a Federal Government lease.
(iv) The provisions of section 13 of the National inland Waterways Authority Decree 1997, as a re-enacted in the National inland Waterways Act, Up N.47, Laws of the Federation 2004, are subordinate and subject to the Lands (Title Vesting etc) Act CAP L.7 Laws of the Federation 2004.
(v) By virtue of section I and 2 of CAP L. 7 the control and management of the land in dispute, being “land” to which CAP L.7 applies, is vested in the Federal Ministry with the responsibility for lands and land matters, that is, the Federal Ministry of Housing and Urban Development, or any other authority designated by that ministry for the purpose of the Act, and not the Federal Ministry of Transport relied on by the defendant.
(vi) The Claimants’ subsisting lease was duly registered pursuant to section 5 of CAP L. 7 and section 2(a) of Federal Lands Registry (Miscellaneous Provisions) Act CAP F, 15, Laws of the Federation of Nigeria 2004 and supersedes any licence granted over the same federal land pursuant to a subordinate Legislation.
7. That I verily believe that the party sought to he joined is not a party whose interests are likely to be affected or whose rights are threatened in this action.
8. That the fact of the grant of a licence is not in issue, it is the validity in law of the grant that is in issue with regard to the claimants’ third relief that is before the court.
9. That it would result in an absurdity to join issuers of any licences, certificates of occupancy, etc in relation to land in all cases not affecting their interests or where their rights are not threatened.
15. That I verily believe that the party sought to be joined has been adjudged an irrelevant party for the purposes of the claimant’s claim and the defendant’s counter-claims in this matter which is an action against a particular trespasser,
16. That I verily believe that the Respondent s application is an abuse of court process.
Having accorded a critical, albeit dispassionate, perusal of the averments contained in both the affidavit and the counter affidavit aforementioned, it has become rather obvious that issues have been joined by parties regarding whether or not the National Inland Waterways Authority (NIWA) sought to be joined have vested interests in the suit.
By virtue of the provisions of the Lands (Title Vesting, ETC) Act CAP. L7, Laws of the Federation of Nigeria, 2004 (Decree No. 52 of 1993), the title of all land (situated) within the 100 metres limit of the 1967 shore line and all land reclaimed near the lagoon, sea or ocean in or bordering Nigeria has been exclusively vested in the Federal Government of Nigeria.
In the same vein, the provision of section 11 of the National Inland Waterways Authority CAP, N47, Laws of the Federation of Nigeria, 2004, is to the following effect:
“All navigable waterways, inland waterways, river pots and internal waters of Nigeria, excluding all direct approaches to the ports under or pursuant to the Nigerian Ports Authority Act, up to 250 meteres beyond the upstream edge of quay of such ports, shall be under the exclusive management, direction and control of the Authority.
See also sections 8, 9 & 13 of the National Inland Waterways Authority Act (supra) regarding the general functions, powers and rights of NIWA.
It is a trite and well settled doctrine that one of the fundamental reasons necessitating the joinder of a person as a party to an action or suit is to make him bound by the consequence or result of the action. This common law doctrine was eloquently enunciated in the case of AMONU VS. RAPHEAL TUCK & SONS LTD (1959)1 QB 357 at 380. per Devlin. In the case of GREEN VS. GREEN (Supra) at 492 paragraphs c – E, the Supreme Court was reported to have authoritatively held, inter alia, that –
under our law also a person whose interest is involved or is in issue in an action and who knowingly chose to stand by and let others fight his battle for him is equally bound by the result in the same way as if he were a party, see INRELART (1986) 2 CH D. 788 LEEDS VS. AMHERST 16 CJ. CHS, ESIAKO VS OBIASOGWU 14 WACA 178, ABUAKWA VS ADANSE (1957) “3 ALL ER. 559.” per Oputa, JSC.
It is indeed a trite general principle, that where it is so apparent to a court that any person not [being] a party in the case may eventually be liable, either in whole or in part, it may upon an ex-parte application allow that person to be joined as a third party by any of the defendants. See order 13 Rule 19(1) of the High court of Lagos state (civil procedure) Rules, 2004.
Thus, it’s no longer in doubt that the rule is well settled that where a defendant to a suit, by his pleadings, rests his defence on the act of a third party, he has the onerous duty to join the said third party as a co-defendant to the suit. See OSHO VS. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (Pt. 184) 157 at 188 paragraphs B – C, where in the Supreme Court held, per Obaseki, JSC thus:
Since the 1st, 2nd and 3rd respondents rested their defence on the revocation by the Military Governor and reallocation to the 2nd and 3rd defendants, the defendants’ duty to establish their defence imposes upon them a duty to join the Military Governor as a Co-defendant or at least call him as a witness.
As alluded to above, the Lands (Title Vesting, ETC) Act (supra) was principally enacted to provide, inter alia, for the vesting of the title of all land within the 100 metres limit of the 1967 shoreline and all land reclaimed near the Lagoon, Sea or Ocean in or bordering Nigeria exclusively in the Federal Government of Nigeria. Thus, by virtue of the provisions of the said Act, any title to any land purportedly held by any State or Local Government, individual, body corporate or incorporate before January 1, 1975, has been exclusively vested in Federal Government of Nigeria. See section 1(1) & (2) of the Lands (Title Vesting, ETC) Act (supra).
In the same vein, the law has equally been settled, that all the lands referred to in section 1 of the Lands (Title Vesting, ETC) Act (supra) shall be controlled and managed for and on behalf of the Federal Government of Nigeria by the Federal Ministry charged with the responsibility for lands and land matters or any other authority designated by that Ministry for the purposes of the Act. see section 2 of the Lands (Title Vesting, ETC) Act (supra).
There is no doubt that the National Inland Waterways Authority (NIWA) sought to be joined has vested interest in the instant case. As alluded heretofore, the NIWA is a creation of the National Inland Waterways Authority Act CAP. N4, Laws of the Federation of Nigeria, 2004. Invariably, it has been conferred with the responsibility to, inter alia, improve and develop the Nigerian Inland waterways for navigation purposes. See sections 1, 2, 8 & 9 of the Act.
I think, it should also be reiterated that by virtue of the provisions of sections 10, 11, 12 & 13 of the Act, the NIWA has been conferred with far-reaching power and right to control, develop, manage and use all the lands, navigable waterways, inland ways, river posts et al throughout Nigeria.
Hence, in the light of the averments contained in both the affidavit and the counter affidavit of the respective parties vis-a-vis the statutory provisions of both the Lands (Title Vesting, ETC) Act, and National Inland waterways Authority Act referred to above, there is every reasonable cause for me to believe that the NIWA, desperately sought to be joined as a co-defendant to the suit by the Appellant, is not only an interested or desirable party, but also a necessary party to the suit. And I so hold.
Thus, my answer to issue No. 1 is undoubtedly in the positive, and same is hereby resolved in favour of the Appellant.
ISSUE NO.2:
The second issue raises the vexed question of whether or not the lower court was right in refusing to join the National Inland Waterways Authority (NIWA) to the suit. I would want to hold that, in view of the positive answer to issue No. 1 above, the answer to the instant second issue is most inevitably in the negative, for some obvious reasons.
Firstly, as alluded to above, both parties claim to have derived their respective interests in the land in dispute from one particular source. And that source happens to be the Federal Government of Nigeria vides the National Inland Waterways Authority (NIWA). Undoubtedly, NIWA was the body or organ that allegedly-leased or licenced the land in dispute to both parties for ferry services. Undisputable, by virtue of the provisions of sections 12 & 13 of National Inland Waterways Act, (supra), and section 2 of the Lands (Title Vesting, ETC) Act (supra) NIWA is the organ or Agency of the Federal Government duly empowered by law to control and manage all areas of land within the 100 metres perpendicular from the edge of the channel along the banks of all lagoons of inland waterways for navigation purposes. of course, the land in dispute not exclusive!
Secondly, in the instant case, the fact that the Appellant has rested his case or defence on the act of the NIWA, has imposed a duty there on to join the Authority as a co-defendant in the suit. See OSHO VS. FOREIGN FINANCE CORPORATION & 1 OR (supra) at 188 paragraphs B – C.
However, unlike in OSHO’s case (supra), it’s not the case of any of the parties that the lease purportedly granted to the Appellant had been revoked by the Federal Government or NIWA, as the case may be. Thus, in my considered view, in the instant case, the most reasonable way to resolve whatever dispute existing between both parties is to join NIWA as a co-defendant to the suit. Contrary to the findings of the learned trial judge, the dispute between the parties could not reasonably be resolved by merely calling the NIWA as a witness in the matter.
I have the view that it would be extremely difficult if not impossible, for lower court or any court for that matter, to determine the case before it without considering the relevant provisions of both the Lands (Title Vesting ETC) Act and the National Inland Waterways Authority Act (supra). The National inland Waterways Authority undoubtedly has a vested interest in the outcome of the suit, thus ought to be joined as a necessary party therein.
Indeed, it would be contrary to the well cherished principles of natural justice, equity, good conscience and public policy to deny the Appellant the opportunity he so desperately needs to present his defence the best way he could, by joining the NIWA (a public institution) as a co-defendant to the suit. If in the course of the determination of the case, the court eventually comes to the conclusion that the NIWA’s exercise of the power thereof under the Act is invalid, it would be declared ultra vires, null and void. This is so, because it would be against the principles of public policy for the NIWA, or any Government organization for that matter, to exceed its powers. I think, it was Hobert CJ who once described public policy as “an unruly horse,” over 300 years ago. Not surprisingly, Burrough J came to the conclusion, avowedly or otherwise, that public policy is so unruly a horse that no judge should ever try to mount it lest it gallops away with him. See RICHARDSON VS. METUSH (1824) 2 BING 229. 252. However, in the course of time that view became rather untenable. As aptly maintained by Lord Denning, MR, in his notorious erudite characteristics –
I disagree. With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles. It can leap the fences put up by fictions and come down on the side of justice, as indeed was done in NAGLE VS, FEKDEN (1966) 2 Q8633. See the Discipline of Law, First Indian Edition, 2007 at 172.
In view of the above postulations, the answer to the second issue is obviously in the negative, and same is hereby resolved in favour of the Appellant.
In the light of the foregoing postulations, having resolved both issues in favour of the Appellant, I am of the considered view that the instant appeal has merit, and same is hereby allowed by me. Consequently, the ruling of the lower court, which was delivered on June 17, 2008, is hereby set aside.
CONSEQUENTIAL ORDERS:
I would want to reiterate that the preliminary objection, filed by the Appellant on July 19, 2005, challenging the jurisdiction of the lower court was overruled by that court on May 18, 2007. I think there is a need for this court to take judicial notice of the fact that the Appellant filed a motion seeking an extension of time and leave of this court to appeal against the ruling of the lower court, dated 17/3/06, overruling the preliminary objection challenging the jurisdiction of that court. That motion was indeed heard and duly granted by this court on 11/3/2011.
Thus, in view of the pending appeal against the ruling of the lower court overruling the preliminary objection in question, it would be not only inappropriate but also injudicious for this court to make any further finding on the purported issue of jurisdiction at this point in time.
Undoubtedly, the court is bound to restrict itself to the reliefs sought by the Appellant in the amended notice and grounds of appeal, deemed to have been properly filed and served on 24/11/2009, to wit:
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL
i. Allow the Appeal,
ii. Set aside the Ruling of 17/06/08.
iii. Transfer the file to another judge of the Lagos state High Court,
Thus, it would be most innocuous, to say the least, for the Appellant’s learned counsel to urge the court, as he did in the brief thereof, that the court should [in the alternative) “declare the jurisdiction of the Federal High Court”.
Yet, it is a trite fundamental principle that parties are bound by their pleadings. It is likewise a trite principle, that a court of law is not merely a father xmas, thus should not charitably dispose itself to indiscriminately granting reliefs that have not been sought by parties in their pleadings.
Hence, in view of the circumstances of this case, I have deemed it not only expedient but utterly imperative to order as follows:
(i) That the National inland waterways Authority be, and same is hereby, joined as a co-defendant to the suit No. LD/962/05 between GANI-TARZAN MARINE ENTERPRISES LIMITED VS. CARAVELLE RESOURCES AND INVESTMENT LIMITED & ADETUNJI ADEGBOYEGA ADEBAYO.
(ii) That the suit in question shall be reassigned by the Hon, Chief Judge of the Lagos State High Court to another judge of the court for trial de novo.
ADAMU JAURO, J.C.A.: I have been afforded an opportunity of reading in advance the leading judgment of my learned brother, I. M. M. SAULAWA, JCA. His Lordship has meticulously and beautifully considered all the issues for determination in this appeal. I am in agreement with the reasoning and conclusion expressed in the judgment, which I also adopt as mine.
For the reasons adumbrated in the lead judgment, I also hold that the appeal is meritorious. I join my brother in allowing the appeal and setting aside the ruling of the lower court delivered on 17th June, 2008.
I abide by the consequential orders made in the lead judgment.
RITA NOSAKHARE PEMU, J.C.A.: I have had the privilege of reading in draft the lead Judgment of my brother I.M.M. Saulawa J.C.A.
I agree entirely with his reasoning and conclusion arrived at. I also abide by the consequential order made.
By way of emphasis, the case of GREEN VS. GREEN (1987) 3 NWLR (pt. 61) 480 at 488 paragraph b is the locus classicus on the issue of joinder and indeed non-joinder of parties.
Oputa JSC (as he then was) put the principles guiding it quite succinctly into four categories which are:
(i) Where a party to an existing pending suit applies to join another person or persons as parties;
(ii) Where an intervener applies to join an existing suit;
(iii) Where the court itself suo motu opts to join parties and
(iv) Where a total failure either by the parties or an intervener or the Court to join.
As aptly observed in the lead judgment, the pleadings of the respective parties are linked to the first category.
Where a Court is of the view that to join a party would enable it effectively and effectually decide a case, he has an obligation to join that party. This is always invariably discernible from the pleadings and or affidavit evidence.
In the present circumstance of this case, the Appellant rested its defence on the act of the National Inland Waterways Authority.
After a cursory look at the facts deposed to by David Udoh in the affidavit in support of the motion (pages 285-288 of the Record of Appeal) and the facts deposed to in the Counter Affidavit, it shows that the NATIONAL INLAND WATERWAYS AUTHORITY is a party that must of necessity be joined in this suit. This is so, even where in the Counter Affidavit in paragraph 7 thereof, it was deposed thus;
“That I verily believe that the party sought to be joined is not a party whose interests are likely to be affected or whose rights are threatened in this action.”
It is a necessary Party, and not one that should be merely fielded as a witness.
Appearances
Nwogbe with Grant Nwuka EsqFor Appellant
AND
Emeka Okpoko with C.E. Ikebuasi Miss EsqFor Respondent
