IGE & ANOR v. GEO RESOURCES LTD & ORS
(2020)LCN/14842(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Monday, December 14, 2020
CA/IB/M/190/2016
RATIO
PRELIMINARY OBJECTION: DUTY OF RESPONDENT TO ARGUE THE PRELIMINARY OBJECTION RAISED
This Court has said it times without number that where a notice of Preliminary Objection is filed, it must be argued before the hearing of the appeal. This is because it has a terminal effect. Once it succeeds, it will no longer be necessary for the appellate Court to consider the issue or issues distilled from the incompetent grounds of appeal. A Preliminary Objection is deemed to be effectively abandoned by the failure of the Respondent to argue it immediately before the hearing of the appeal. See MADUEKE VS. MADUEKE (2011) LPELR – 4532 (CA); OHENHEN VS. UHUMUAUBI (1995) 6 NWLR (Pt. 401) 166; NSIRIM VS. NSIRIM (1990) 3 NWLR (Pt. 138) 2851 and ADENIYI VS. AKINTAN (2011) 5 NWLR (Pt. 1241) 554 at 570 to mention just a few. PER AYODEJI OJO, J.C.A.
PARTIES TO AN ACTION: ISSUE OF JOINDER OF PARTIES
It has been settled by a plethora of judicial authorities that any person that has the feeling the outcome of a suit will adversely affect his interest may apply to be joined as a defendant before the matter proceeds to trial. The issue of joinder of parties is also embodied in the Rules of Court and the purpose of joinder in the various Rules of Court is to allow the Plaintiff proceed in the same action against all defendants he may be entitled to reliefs.
See BELLO VS. INEC & ORS (2010) LPELR-767 (SC); CROSS RIVER STATE NEWSPAPERS CORPORATION VS. ONI & ORS (1995) LPELR-898 (SC); NWANKWO VS. FBN PLC (2018) LPELR-45536 (CA); DD IKONNE VS. COMM. OF POLICE, IMO STATE & ANOR (1986) NWLR (PT. 36) 473; IGE VS. FARINDE (1994) NWLR (PT. 354) 42; OLAWOYE VS. JIMOH & ORS. (2013) LPELR-20344 (SC); AMODU TIJANI DADA & 3 ORS. VS. JACOB BANKOLE & 2 ORS (2008) 5 NWLR (PT. 1076) 26.
The person to be joined is a person whose presence is necessary as a party and the only reason which makes him a necessary party to the action is that he should be bound by the result of the action. Let me reiterate that the determining factors on the issue of joinder include:
(a) Whether the issue that is for determination in the suit cannot be effectually and completely settled unless the party sought to be joined is made a party and
(b) Whether his interest will be irreparably prejudiced if he is not made a party.
Furthermore, a necessary party is a party whose presence is necessary for the effectual and complete adjudication of the questions involved in the cause or matter. See AJAYI VS. JOLAYEMI (2001) 10 NWLR (PT. 722) PG. 516; ODUOLA VS. COKER (1981) 5 SC PG. 197; AWONIYI VS. REGISTERED TRUSTEES OF AMORC (2000) 10 NWLR (PT. 676) PG. 522; O.K. CONTACT POINT LIMITED VS. PROGRESS BANK PLC (199) 5 NWLR (PT. 604) 631 and B.O.N. LIMITED VS. SALEH (1999) 9 NWLR (PT. 618) 331.
It follows therefore that a necessary party is not just any person but must be one that has a link with the cause of action. It is the claim of the Plaintiff and not the defence of the Defendant that determines whether a person is a necessary party. See EJIGBO LOCAL GOVERNMENT & ORS. VS. ADEPEGBA & ORS (2019) LPELR-48060 (CA). PER AYODEJI OJO, J.C.A.
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
- MR. LATEEF IGE (For Himself And Otuyera Family Of Lamufon, Ijebu-Ife) 2. HRH OBA ADESESAN A. OGUNTAYO (Ajalorun Of Ijebu-Ife) For Himself And The Entire People Of Ijebu-Ife APPELANT(S)
And
1. GEO RESOURCES LIMITED 2. OBA (ENGR) MICHAEL OLUSEGUN ADESINA (OLOWU OF OWU-IJEBU) 3. HAMWO MINING AND CONSTRUCTION NIG. LTD. 4. CHINA HARBOR NIGERIA LIMITED 5. OBA (DR) SIKIRU KAYODE ADETONA (AWUJALE OF IJEBU LAND) Joined By Order Of The Court Of Appeal Dated 18/06/2014. RESPONDENT(S)
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Ogun State High Court sitting in the Abeokuta Judicial Division in Suit Nos. HCJ/125/2008 delivered on the 18th of January 2016.
In that ruling, the lower Court found substantially against the Appellants who sought to be joined as the 6th and 7th Defendants/Interveners respectively in the Suit filed by the 1st Respondent against the 2nd to 5th Respondents.
Dissatisfied with the Ruling, the Appellants filed the instant appeal.
By a Further Amended Writ of Summons and Statement of Claim filed on the 29th of April, 2015, the 1st Respondent claimed against the 2nd – 4th Respondents jointly and severally as follows:
“a) An Order of specific performance compelling the 1st Defendant to give effect to the deed of lease duly executed by the Claimant and the 1st Defendant in respect of the piece or parcel of land situate at Erilota, Owu-Ijebu, Ogun State.
b) An Order of perpetual injunction restraining the 2nd – 4th defendants jointly and or severally or their agents, assigns, beneficiaries,
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privies or anybody claiming through them howsoever called from further committing any act or acts of trespass on the piece or parcel of land leased by the 1st Defendant to the Claimant.
c) An Order for immediate possession of the piece or parcel of land situate at Erilota, Owu-Ijebu leased by the 1st Defendant to the Claimant, which being trespassed and illegally occupied by the 2nd, 3rd and 4th Defendants.
d) The sum of Ten Billion Naira (N10,000,000,000:00) being special and general damages against the 2nd, 3rd and 4th Defendants for acts of trespass and illegal occupation of the piece or parcel of land situate at Erilota, Owu-Ijebu, Ogun State and economic loss suffered by the Claimant.
e) Cost of this action.”
The 5th Respondent was not one of the parties originally sued by the 1st Respondent but he became a Defendant pursuant to an order of this Court made on the 18th of June, 2014 based on an application for joinder brought by him. The ruling of this Court granting leave to join 5th Respondent as a defendant is contained at pages 74-96 of the Record.
The Appellants later applied to the lower Court to be joined as the 6th and
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7th Defendants respectively on the ground that they are the owners of the disputed land. The application for joinder which is contained at pages 28-73 of the record was dismissed by the lower Court for lacking in merit. The Court at pages 108-109 of the Record held as follows:
“In the circumstance, it seems to me that allowing this application will not only obfuscate and relegate the Claimant and its claim to the background, it would change the coloration of the action and cause avoidable confusion and delay. While it is not this Court’s intention to chase the applicants away from the seat of justice, I must also recognize the interest and right of the Claimant to be heard on the action it instituted.
In the circumstance of all said above, I am of the view that the justice of this case demands that the application be refused as to do otherwise will result in situation of ‘too many cooks spoil the broth’. I am in no doubt that the Applicant will suffer prejudice in any form by the refusal as they are at liberty, if they feel strongly about their claim of ownership to institute an action against any person from whom they are
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entitled to redress, after all judgment in land cases is judgment in personam. It binds only and or raises an estoppel against the parties to it …
In sum, the application lacks merit, it fails and it is dismissed.”
The lower Court in its ruling made the following specific findings:
(a) That the subject matter of the Claimant’s action is the parcel of land situate and being at Erilota, Tagbore, Owu-Ijebu wherein the Claimant claims specific performance of a 25 year lease granted it by the 1st Defendant in 1977; perpetual injunction against 2nd – 4th Defendants from further committing any acts of trespass, immediate possession of land and damages (See page 104 of the record).
(b) That the applicants are seeking to be joined as 6th and 7th Defendants because the Claimant and the 1st, 4th and 5th Defendants are not the owners of the land in dispute. The land belongs exclusively to them (Applicants) and they will be adversely affected by the result of the suit if they are not joined as 6th and 7th Defendants respectively. (See page 104 of the record).
(c) That the Claimant has not claimed against the 5th
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Defendant; none of the Defendants raised a counter-claim against the Claimant or each other; there is no claim or counter-claim for title; neither the 1st or 4th Defendants is laying claim to ownership; and, that the 5th Defendant has no counter-claim for declaration of title to the land in dispute. (See pages 104-105 of the record).
(d) That even though the utmost result from a resolution of the issue of title is a finding as to who between the Claimant and the Defendants on record proves a better title to the land, it will not result in judgment for declaration of title in favour of any of the parties since neither the Claimant nor any of the Defendants has such a claim or counter-claim. (See page 105 of the record).
(e) That it is not enough for the Applicants to merely allege that they would be adversely affected by the result of the action, they must show how their interest will be adversely affected. Unfortunately, the Applicants have not been able to show how they will be adversely affected on the issue of title between the parties on record. (See page 105 of the record).
(f) That the Applicants are not necessary parties (see page 105 of
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the record), and have not shown prima facie any discernible legal or direct interest in the subject matter of Claimant’s claim to make them one. (See pages 107-108 of the record).
(g) That the Claimant has no claim against and does not intend to sue the Applicants (See page 108 of the record). The Court will not compel the Claimant to proceed against a party it has no cause of action against or desire to sue. (See page 103 of the record).
The Notice of Appeal containing four (4) grounds was filed on the 29th of January, 2016. The Record of Appeal transmitted on 13th July, 2016 was deemed properly transmitted on the 11th of October, 2018.
Additional record of appeal transmitted by the 1st Respondent’s counsel on 21st November, 2018 was deemed as properly transmitted on 26th February, 2019. Parties filed their respective briefs of arguments identified hereunder as follows:
(a) Appellants’ brief of argument filed on 26th of October, 2018 was settled by A. A. Ogunba of Counsel.
(b) 1st Respondent’s brief of Argument filed on 26/2/2019 was settled by Oluwole Aina of counsel.
(c) 3rd, 4th and 5th Respondents’
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brief of Argument filed on 13th December, 2018 deemed properly filed and served on 26th February, 2019 was settled by O. Ayanlaja SAN and A.R. Adesanya of Counsel.
(d) Appellants’ Reply Brief to the 1st Respondent’s brief of Argument filed on 4th April, 2019 was deemed properly filed on 13th June, 2019.
(e) Appellants’ Reply to the 3rd, 4th and 5th Respondents’ brief of Argument was filed on 26th February, 2019.
Learned counsel to the Appellants filed a notice of withdrawal of this appeal against the 5th Respondent on the 26th of October, 2018. Also, learned counsel to the 3rd, 4th and 5th Respondents filed a Notice of Preliminary Objection urging us to dismiss the instant appeal for being incompetent.
Appellants’ counsel in his Brief of Argument formulated the following two issues for the determination of this appeal:
(a) Whether from the facts, pleadings and processes before the Court the interveners/Appellants are not necessary parties for the effectual and complete determination of all the issues involved in the suit.
(b) Whether the lower Court is right in its interpretation and application of the
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principle of law and facts enunciated in the unreported judgment of the Court of Appeal in SUIT NOS. CA/I/365A/2009 between ALAIYELUWA OBA (DR) SIKIRU KAYODE ADETONA VS. GEO RESOURCES urged on him when he distinguished and refused to follow and be bound by the said decision delivered by the Court of Appeal on 18/6/2014.
The following two (2) issues were formulated on behalf of the 1st Respondent:
1. Whether having regard to the Claimant/1st Respondent’s claim at the lower Court, the position of law and the affidavit evidence, the decision of the Court refusing the Appellants’ application for joinder was correct.
2. Whether the joinder of the Appellants on the ground of their counter-claim to ownership of the land would not amount to an academic exercise and waste of judicial time, having regard to the Claimant’s claim before the lower Court and the present status of the 5th Respondent, who was previously joined based on his claim to ownership of the land.
The 2nd Respondent did not file any brief of Argument. The 3rd, 4th and 5th Respondents argued their Preliminary Objection in paragraphs 1.04 – 2.01 on pages 3
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– 5 of their brief and thereafter formulated a sole issue for determination as follows:
“Whether in consideration of discretionary power of the Court below in refusing to join an intervener as a party to an action, an appellate Court would readily set aside the refusal of the Court below to join the intervener unless the exercise of that discretion was upon wrong principles.”
On the 28th of October, 2020 when this appeal was heard, counsel representing respective parties adopted and relied on their respective briefs of argument filed. While learned counsel to the Appellant argued in favour of allowing the appeal, 1st, 3rd, 4th and 5th Respondents’ counsel respectively submitted to the contrary i.e. in favour of its dismissal.
All the issues formulated for determination by the parties are similar and for this reason I shall determine this appeal based on the issues formulated on behalf of the Appellants but with some slight modification. The issues are as follows:
a) Whether the lower Court was right when it rejected the Appellants Application to be joined as defendants in the suit.
b) Whether the lower Court was
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also right when it distinguished and refused to follow and be bound by the unreported decision of this Court in Appeal No: CA/I/365A/2009 ALAIYELUWA OBA (DR) SIKIRU KAYODE ADETONA VS. GEO RESOURCES delivered on 18th June, 2014.
As stated earlier on, the 3rd, 4th and 5th Respondents filed a Notice of Preliminary Objection which was argued in the brief of Argument filed on their behalf.
The summary of the Preliminary Objection is as follows:
a) That the three (3) grounds of Appeal are purely grounds of mixed law and facts.
b) That the Ruling of the lower Court appealed against is an interlocutory order and
c) That no leave of the lower Court or this Court was obtained before filing the appeal.
The Appellants joined issues with the 3rd, 4th and 5th Respondents on the Preliminary Objection in the Appellants Reply brief of Argument to the 3rd, 4th and 5th Respondents’ Brief of Argument filed on 26/2/19.
On the 28th of October, 2020 when this appeal was heard, learned senior counsel to the 3rd, 4th and 5th Respondents Bambo Adesanya SAN failed to draw the attention of the Court to the notice of Preliminary Objection before
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the appeal was argued. He failed to move the Preliminary Objection before the hearing of the appeal.
This Court has said it times without number that where a notice of Preliminary Objection is filed, it must be argued before the hearing of the appeal. This is because it has a terminal effect. Once it succeeds, it will no longer be necessary for the appellate Court to consider the issue or issues distilled from the incompetent grounds of appeal. A Preliminary Objection is deemed to be effectively abandoned by the failure of the Respondent to argue it immediately before the hearing of the appeal. See MADUEKE VS. MADUEKE (2011) LPELR – 4532 (CA); OHENHEN VS. UHUMUAUBI (1995) 6 NWLR (Pt. 401) 166; NSIRIM VS. NSIRIM (1990) 3 NWLR (Pt. 138) 2851 and ADENIYI VS. AKINTAN (2011) 5 NWLR (Pt. 1241) 554 at 570 to mention just a few.
The inevitable conclusion is that the Preliminary Objection of the 3rd, 4th and 5th Respondents is deemed abandoned and it is hereby struck out.
I shall now go on to consider the issues formulated for the determination of this appeal.
ISSUE 1
Whether the lower Court was right when it rejected the
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Appellants’ application to be joined as defendants in the suit.
Learned Counsel to the Appellants under this issue argued that the joinder of the Appellants would have enabled the lower Court effectively and completely adjudicate upon and settle all questions involved in the matter. He relied on the cases of PEENOK INVESTMENTS LTD. VS. HOTEL PRESIDENTIAL LTD. (1982) LPELR–2908 (SC) and AWONIYI & ORS. VS. THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER AMORC (NIGERIA) (2000) LPELR–655 (SC) AT PS. 22 PARAGRAPHS E – G to support his submission.
He also submitted that a careful perusal of paragraph 6 of the Amended Statement of Defence of the 3rd, 4th and 5th Respondents contained at pages 15 – 20 of the Record reveal that they lay claim to customary ownership of the land in dispute as their defence to defeat the claim of the 1st Respondent. That this being the case and by virtue of the Appellants proposed counter claim and interest in the subject matter of the dispute, they (the Appellants) are necessary parties for the effectual and complete determination of the issues involved in the Suit.
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He further argued that the joinder of the Appellants is necessary to avoid multiplicity of action which may lead to varied result and referred us to the cases of UNITED GEOPHYSICAL (NIG.) LTD. & ORS. VS. FIDELIS OSIOBE & ORS. (2014) LPELR–24528 (CA) and MEDUKAM VS. EGEMOLE (2010) LPELR–8143 (CA) to support his argument. He pointed out that Relief C claimed by the 1st Respondent in its Further Amended Statement of Claim deals mainly with ownership and that the word “lessor” used in that relief implies ownership. He urged us to resolve this issue in favour of the Appellants.
Arguing per contra, learned counsel to the 1st Respondent submitted that it is only the 1st Respondent that presently has a claim before the lower Court. He submitted none of the other Respondents has a counter-claim for title to land before the Court and that all the paragraphs of the pleading of the 2nd Respondent where he claimed ownership were struck out by the lower Court in its Ruling of 17th November, 2016. See pages 1 – 6 of the Additional Record. He submitted that the Appellants have no claim against the 5th Respondent.
He argued further that the 1st
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Respondent cannot be compelled to proceed against a party he has no desire to prosecute and that the Appellants have failed to show they are necessary parties to the action. He submitted that non joinder or misjoinder of a party does not defeat an action under Order 13 Rule 16(1) of the Ogun State High Court (Civil Procedure) Rules 2014 and that the overall interest of justice will not be preserved if this appeal is allowed. He referred to IGE VS. FARINDE (1994) 20 LRCN 322; PEENOK INVESTMENT LIMITED VS. HOTEL PRESIDENTIAL LTD. (1982) 12 SC 1; OLUJITAN VS. OSHATOBA (1992) 5 NWLR (PT. 241) 326 at 3551 and AZUH VS. UBN PLC. (2014) 5 SC (PT. 1) 112 at 121 to support his submission.
Learned Senior Counsel to the 3rd, 4th and 5th Respondents also urged us to hold that the Appellants failed to establish that the lower Court erred when it refused their application to be joined in the Suit. He submitted they failed to show that their presence is necessary for an effectual adjudication of the matter by the Court and settlement of all the issues involved. He cited IGE VS. FARINDE (1994) NWLR (PT. 354) 42 to support his submission. He stressed the point that the
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facts before the lower Court are sufficient for the effectual or complete adjudication of the matters before it and that the Appellants are not necessary parties in that proceeding. He cited the cases of EGONU VS. EGONU (1973) 3 ECSLR (PT. 2) 644 and MONTGOMARY VS. MORGAN & CO. (1895) 2QB 321 to support his point.
I have painstakingly perused the record of appeal and the supplementary record. The summary of what happened which culminated in the instant appeal is that the Appellants by a notice of motion dated 30/10/15 sought the leave of the lower Court to join them as the 6th and 7th Defendants respectively on the grounds that they are the owners of the parcel of land situate at Erilota/Agbede and that they are necessary parties for the proper and effectual determination of all the issues in that suit. They deposed to several facts to justify their supposed ownership. They attached their proposed statement of defence and counter-claim to their affidavit as Exhibit AA1.
It has been settled by a plethora of judicial authorities that any person that has the feeling the outcome of a suit will adversely affect his interest may apply to be joined as a
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defendant before the matter proceeds to trial. The issue of joinder of parties is also embodied in the Rules of Court and the purpose of joinder in the various Rules of Court is to allow the Plaintiff proceed in the same action against all defendants he may be entitled to reliefs.
See BELLO VS. INEC & ORS (2010) LPELR-767 (SC); CROSS RIVER STATE NEWSPAPERS CORPORATION VS. ONI & ORS (1995) LPELR-898 (SC); NWANKWO VS. FBN PLC (2018) LPELR-45536 (CA); DD IKONNE VS. COMM. OF POLICE, IMO STATE & ANOR (1986) NWLR (PT. 36) 473; IGE VS. FARINDE (1994) NWLR (PT. 354) 42; OLAWOYE VS. JIMOH & ORS. (2013) LPELR-20344 (SC); AMODU TIJANI DADA & 3 ORS. VS. JACOB BANKOLE & 2 ORS (2008) 5 NWLR (PT. 1076) 26.
The person to be joined is a person whose presence is necessary as a party and the only reason which makes him a necessary party to the action is that he should be bound by the result of the action. Let me reiterate that the determining factors on the issue of joinder include:
(a) Whether the issue that is for determination in the suit cannot be effectually and completely settled unless the party sought to be joined is made a party and
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(b) Whether his interest will be irreparably prejudiced if he is not made a party.
Furthermore, a necessary party is a party whose presence is necessary for the effectual and complete adjudication of the questions involved in the cause or matter. See AJAYI VS. JOLAYEMI (2001) 10 NWLR (PT. 722) PG. 516; ODUOLA VS. COKER (1981) 5 SC PG. 197; AWONIYI VS. REGISTERED TRUSTEES OF AMORC (2000) 10 NWLR (PT. 676) PG. 522; O.K. CONTACT POINT LIMITED VS. PROGRESS BANK PLC (199) 5 NWLR (PT. 604) 631 and B.O.N. LIMITED VS. SALEH (1999) 9 NWLR (PT. 618) 331.
It follows therefore that a necessary party is not just any person but must be one that has a link with the cause of action. It is the claim of the Plaintiff and not the defence of the Defendant that determines whether a person is a necessary party. See EJIGBO LOCAL GOVERNMENT & ORS. VS. ADEPEGBA & ORS (2019) LPELR-48060 (CA).
It is on record that the claim of the 1st Respondent against the remaining Respondents at the lower Court is for specific performance of a 25 year lease purportedly granted to it by the 2nd Respondent in 1977; perpetual injunction to restrain the 3rd – 4th
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Respondents from further committing any acts of trespass; immediate possession of the land occupied by the said 3rd – 4th Respondents. They also claim damages for trespass and illegal occupation of the land.
The Appellants sought to be joined as the 6th and 7th Defendants in the suit filed by the 1st Respondent against the 2nd, 3rd and 4th Respondents and in which the 5th Respondent was joined by an order of Court. The ground upon which the Appellants sought to be joined is that the disputed land belongs exclusively to them and not the 1st, 2nd and 5th Respondents. They say the 2nd and 5th Respondents lay claim to the land which belongs to them and that if they are not joined as defendants they will be adversely affected by the outcome of the suit.
It is to be noted that the 1st Respondent who is the Claimant before the lower Court has no claim whatsoever against the 5th Respondent. The 2nd – 5th Respondents did not raise a counter-claim against the 1st Respondent or against one another. The claim of the 1st Respondent before the lower Court has been set out in the earlier part of this judgment but for ease of reference I shall reproduce
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it again. It is as follows:
“(a) An Order of specific performance compelling the 1st defendant to give effect to the Deed of Lease dated duly executed by the Claimant and the 1st Defendant in respect of the piece or parcel of land situate at Erilota, Owu-Ijebu, Ogun State.
(b) An order of perpetual injunction restraining the 2nd – 4th Defendants jointly and severally or their agent, assigns, beneficiaries, privies or anybody claiming through them howsoever called from further committing any act or acts of trespass on the piece or parcel of land leased by the 1st Defendant to the Claimant.
(c) An Order for immediate possession of the piece or parcel of land situate at Erilota, Owu-Ijebu leased by the 1st Defendant to the claimant which being trespassed and illegally occupied by the 2nd, 3rd and 4th Defendants.
(d) The sum of Ten Billion Naira (N10,000,000,000:00) being special and general damages against the 2nd, 3rd and 4th Defendants for acts of trespass and illegal occupation of the piece or parcel of land situate at Erilota Owu-Ijebu, Ogun State and economic loss suffered by the Claimant.
(e) Cost of this action.”
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It is evident from the above that there is no claim for title/ownership of the disputed land. There is no counterclaim before the lower Court. The sole ground for the application of the Appellants is their claim to ownership of the land. The case of the 1st Respondent is not for declaration of title to land. I cannot therefore see how the Appellants are necessary parties in the case filed by the 1st Respondent. They are not and I so hold.
I agree with the lower Court that from the claim before it, the best that can be arrived at is a finding as to who among the Respondents proved a better title and not a declaration of title in favour of any of them. There is no claim for declaration of title before the Court. Furthermore, in the event the 1st Respondent’s claim fail, such failure would not entitle the 5th Respondent or any of the other Respondents to a declaration of title since there is no counter-claim before the Court. The judgment of the lower Court will not adversely affect and/or bind the Appellants whose claim centers around ownership of the land. The claim before the lower Court relate to who has a better claim for
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possession. Certainly, the Appellants are not necessary parties in the suit before the lower Court.
I am therefore unable to fault the finding of the lower Court that joining the Appellants to the suit will obfuscate and relegate the 1st Respondent and its claims to the background. I also agree in toto that a grant of the application of the Appellants will change the coloration of the action and cause avoidable confusion and delay. The issue of title which hitherto was not an issue and still not in issue between the Respondents will definitely be introduced.
It is clear the 1st Respondent is not desirous of prosecuting the Appellants. He cannot be compelled either by the lower Court or this Court to do so. See INRE MOGAJI (1986) LPELR 1891 (SC); AROMIRE VS. AWOYEMI (1972) 1 ANLR (PT. 1) PG. 101 AT 108; LAJUMOKE VS. DOHERTY (1969) VOL. 1 NMLR 281; GREEN VS. GREEN (1987) LPELR-1338 (SC) and OLAWOYE VS. JIMOH & ORS (2013) 13 NWLR (PT. 1371) 362 AT 383.
From all of the foregoing, and in a nutshell I am unable to agree with the Appellants that the refusal of the lower Court to join them as parties to the suit before it is premised on wrong
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principles. I do not find any reason to disturb the exercise of the discretion of the lower Court. It is in order.
This issue is resolved against the Appellants.
Issue Two
Whether the lower Court was right when it distinguished and refused to follow and be bound by the unreported decision of this Court in APPEAL NO. CA/I/365A/2009, ALAIYELUWA OBA (DR.) SIKIRU KAYODE ADETONA VS. GEO RESOURCES LTD delivered on 18/06/2014.
It is the contention of the Appellants counsel that the judgment of this Court in Appeal No. CA/I/365A/2009 is on all fours with the case at hand. He referred us to page 90 of the record wherein this Court in its judgment delivered on 18/06/2014 held that persons affected or to be affected by a resolution of the same question ought to be parties in the action. He argued vehemently that since this Court in that appeal identified that an issue of title arose between the Olowu (2nd Respondent herein) and the Awujale (The 5th Respondent herein) the lower Court ought to have bound itself by that decision and join the Appellants as 6th and 7th Defendants respectively.
On the doctrine of stare decisis, counsel commended to us
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the cases of NIGERIA AGIP OIL COMPANY LIMITED VS. CHIEF GIFT NKWEKE & ANOR. (2016) LPELR-26060 (SC) and NWABUEZE VS. THE PEOPLE OF LAGOS STATE (2018) LPELR-44113 (SC) and urged us to resolve this issue in favour of the Appellants.
For his part, learned counsel to the 1st Respondent placed a different set of arguments before us. He emphasised that the claim/suit before the lower Court does not raise the issue of ownership, that the status of the 5th Respondent who was joined by the order of this Court on 18/06/2014 is redundant and he cannot counterclaim for ownership since the 1st Respondent (Claimant at the lower Court) has no claim on ownership; that the main reason for joining the 5th Respondent was because the 3rd and 4th Respondents who the 1st Respondent sued for trespass came into possession through him and not because he claimed ownership. That the Appellants are not trespassers and no trespasser on the land is claiming through them and that the only reason the Appellants seek to be joined is their claim of ownership of the land.
1st Respondent’s counsel further argued that the intended claim of the Appellants and the claim of the
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5th Respondent which borders on ownership is at best an academic exercise having regard to the 1st Respondent’s claim in which ownership of the land is not an issue. He relied on the cases of ARDO VS. INEC (2017) 3 – 4 SC 36 at 53 and OKOTIE EBOH VS. MANAGER (2001) 18 NWLR (PT. 905) 242 at 284 – 285 to support his point.
He finally stressed that the counter-claim of the Appellants for ownership cannot fly since the 1st Respondent has no claim for ownership and urged us to hold that the counter-claim of the Appellants is incompetent and constitute an abuse of Court process. He cited UIC LIMITED VS. T.A. HAMMOND NIG. LTD. (1998) 9 NWLR (PT. 565) 340 at 365; NPA VS. CGFC (1974) 12 SC 81; PETERSIDE VS. IMB (NIG.) LTD. (1993) 2 NWLR (Pt. 278) 712 at 731 and OBALA OF OTAN AIYEGBAJU VS. ADESINA (1999) 2 NWLR (Pt. 590) 163 at 180 to support his submission and urged us to resolve this issue against the Appellants.
On his part, learned counsel to the 3rd, 4th and 5th Respondents submitted and urged us to so hold that the facts of the case in APPEAL NOS: CA/I/365A/2009 are different and clearly distinguishable from the facts in this appeal and
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therefore not caught by the doctrine of stare decisis. He urged us not to interfere or disturb the exercise of the discretion of the lower Court. He craved in aid of his submission the case of AGROCHEMICALS NIGERIA LTD. VS. KUDU HOLD LTD. (2000) 15 NWLR (Pt. 691) 493.
I have gone through the judgment of this Court in Appeal No. CA/I/365A/2009 contained at pages 74 – 96 of the record vis-à-vis the Ruling of the lower Court delivered on 18/01/2016 with a view to determining whether the lower Court was caught by the doctrine of stare decisis and whether it’s decision not to follow the said judgment of this Court amount to judicial rascality and therefore unjustifiable. After a thorough consideration of the two decisions I am unable to fault the decision of the lower Court for the following reasons:
The suit of the 1st Respondent at the lower Court does not relate to ownership. This Court allowed the 5th Respondent to be joined as a party to the suit because the 3rd and 4th Respondents who the 1st Respondent sued for trespass came into possession through the 5th Respondent and not because he claimed ownership of the land.
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There is therefore no gainsaying the fact that the pending suit before the lower Court does not relate to ownership of the land and that the sole reason why the Appellants seek to be joined is on the ground of ownership. I am therefore of the view and hold that the basis and/or circumstances for joining the 5th Respondent to the Suit in APPEAL NO: CA/I/356A/2009 is different and distinguishable from the grounds presented by the Appellants in the instant appeal. The lower Court was therefore right when it distinguished the case before it from the unreported decision of this Court in APPEAL NOS: CA/I/365A/2009 delivered on 18/06/2014 and refused to follow it and be bound by it. This issue is also resolved against the Appellants.
Having resolved the two issues in this appeal against the Appellants, the inevitable conclusion is that this appeal lacks merit and should be dismissed. It is accordingly dismissed. I affirm the Ruling of the Ogun State High Court sitting at the Ijebu Ode Judicial Division in SUIT NOS. HCJ/125/2008 delivered on 18th Jan., 2016.
I award cost of N50,000.00 in favour of each of the Respondents.
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JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead judgment of my Lord FOLASHADE AYODEJI OJO, JCA, just delivered. I agree with my Lord’s reasoning and conclusion that the Appeal lacks merit.
Having read the Records of Appeal as well as the Briefs of Argument filed by Counsel on behalf of the parties, I am also of the view that the Appeal lacks merit and it is also dismissed by me.
I abide also by the consequential Orders made in the said Lead Judgment including Order as to costs.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother, Folasade Ayodeji OJO, JCA.
The crucial issue the learned trial Judge in the Court below was saddled with related to joinder of the Appellants as Defendants in the 1st Appellant’s suit against the 2nd – 5th Respondents. The Appellants were parties in the suit as filed by the 1st Respondent but applied to be joined as Defendants. The trial Court saw no merit in their application and therefore dismissed same. It is the law that the choice of who to sue lies entirely with a Plaintiff or Claimant. It is also the settled law that
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the Court has the power to order the joinder of a person, whether as Plaintiff or Defendant whose presence before the Court is necessary to enable the Court effectually and completely adjudicate and settle all the questions involved in the case or matter. See Reg’d Trustees of National Asso. of Comm. Heath Practitioners of Nig. & Ors v. Med & Health Workers Union of Nig & Ors (2008) 2 NWLR (Pt.1012) 575 and Attorney-General of Federation v. Attorney-General of Abia State & Ors (2001) LPELR – 24862 (SC). Having carefully perused the averments in the 1st Respondent’s Statement of Claim, the Affidavit in support of the Appellants’ Motion for joinder, and the applicable law, I agree with the findings of my learned brother in the lead judgment when he held at page 19 of the judgment as follows:
“I am therefore unable to fault the finding of the lower Court that joining the Appellants to the suit will obfuscate and relegate the 1st Respondent and its claim to the background. I also agree in toto that a grant of the application of the Appellants will change the coloration of the action and cause avoidable confusion and delay.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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I adopt the above findings of my learned brother as mine, and conclude that this appeal lacks merit. It is therefore dismissed.
I abide by the order on costs.
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Appearances:
A. OGUNBA with him L. J. DICKSON (MISS) For Appellant(s)
OLUWOLE AINA with him E. S. OLUDOTUN (MRS) – for the 1st RESPONDENT
SEUN A. OMOKANKE – for the 2nd RESPONDENT
BAMBO ADESANYA SAN with him LEKE ADETONA – for 3rd, 4th and 5th RESPONDENTS For Respondent(s)
