INC. TRUSTEES OF CHAPEL OF GOODNEWS v. KADUNA STATE GOVT & ORS
(2020)LCN/14016(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, March 20, 2020
CA/K/459/2018
Before Our Lordships:
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
THE INCORPORATED TRUSTEES OF CHAPEL OF GOODNEWS APPELANT(S)
And
1. KADUNA STATE GOVERNMNET 2. HONOURABLE ATTORNEY GENERAL, KADUNA STATE 3. KADUNA STATE UNIVERSITY RESPONDENT(S)
RATIO
THE PRINCIPLE OF JOINDER OF PARTIES
The principles for joinder have been well stated in the cases cited by both Counsel. A necessary party has been held to be one not only interested in the dispute but whose presence is essential for the effectual and complete determination of the matter. It is a party not only interested in the dispute, but the matter cannot be decided fairly in his absence. See All Progressives Congress v. Peoples’ Democratic Party (2015) 15 NWLR Part 1481 Page 1 at 60 Para F-G; 62 Para B per Ngwuta JSC.
A necessary party is that person whose presence is essential for the effectual and complete determination of the issues before the Court. It is a party in the absence of whom the whole claim cannot be effectually and completely determined -ADC v Bello (2017) 1 NWLR Part 1545 Page 112 at 136 Para F-H per Ogunbiyi JSC; Okwu v. Umeh (2016) 4 NWLR Part 1501 Page 120 at 143 Para B-C per Okoro JSC; B.B. Apugo & Sons Ltd v. Orthopaedic Hospital Management Board (2016) 13 NWLR Part 1529 Page 206 at 263 Para A per Kekere-Ekun JSC; Green v Green (2001) FWLR Part 76 Page 795 at 814 Para F-H per Oputa JSC; Poroye v Makarfi (2018) 1 NWLR Part 1599 Page 91 at 142-143 Para G-D per Ariwoola JSC.
The rules permit joinder of parties who claim jointly, severally or in the alternative, as Plaintiffs or Defendants, so as to avoid multiplicity of actions, particularly where they have a common interest and common questions of law and common demand. The judgment of the Court shall be given to one or more of the parties as may be found entitled to reliefs in the action. See Olufeagba vs. Abdul-Raheam (2009) 18 NWLR Part 1173 Page 384 per Adekeye JSC.
With regard to joinder as a Co-Plaintiff, a right to relief must arise from the same transaction and it must be shown that there is no conflict of interest between them. See Ayankoya v. Olukoya (1996) 4 NWLR Part 440 Page 1, SC at 15 Para B-D; at 16 Para B-D, G-H per Adio JSC; Fadayomi v. Sadipe (1986) 1 NSCC Vol. 17 Page 570 at 574 Lines 15-25 per Coker JSC; Okelue v. Medukam (2011) 2 NWLR Part 1230 Page 176 at 200 Para A-B per Lokulo-Sodipe JCA.
It follows, in consequence, that a person cannot be made a Plaintiff without his consent. SeeFadayomi v. Sadipe (1986) 1 NSCC Vol. 17 Page 570 at 574 Lines 15-25 per Coker JSC. PER ADEFOPE-OKOJIE, J.C.A.
WHETHER OR NOT THE COURT CAN MAKE AN ORDER AGAINST A PERSON WHO IS NOT A PARTY IN A PROCEEDING BEFORE IT
I agree, as submitted by the Appellant’s Counsel, that a Court cannot make an order against a person who is neither a party nor a privy in a proceeding before it. See Alhaji Mudashiru Kokoro-Owo v Lagos State Government (2001) FWLR Part 61 Page 1709 at 17717, Fayemi v Oni (2009) All FWLR Part 493 Page 1254 at 1280. This is however no reason to join the Minister as a Co-Plaintiff, I hold. It is also not necessary for the Minister to be a party to the action to enable the lower Court give validity to the Appellant’s title. PER ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory decision of the Hon. Justice Isa Aliyu of Kaduna State High Court, delivered on the 14th day of February 2018 in Suit No. KDH/KAD/798/2017.
The Suit was instituted by the Appellant, as Plaintiff in the lower Court, against the 1st to 3rd Respondents as Defendants, jointly and severally for declarations that the Appellants are beneficially entitled to the land in dispute and that the Respondents have no power to forcefully dispossess them of the same.
Opposing the claim, the Defendants, Respondents herein, filed a Statement of Defence and Counter Claimed that the 1st Respondent is the legal owner of the property, consequent upon the transfer of ownership to it of all the properties under the control of the Ahmadu Bello University Teaching Hospital, Kaduna by the Federal Government. It impugned the Certificate of Occupancy issued to the Appellant and Counterclaimed for declarations of title and a declaration of the nullity of the Appellant’s title.
Following the receipt of the Respondents’ Statement of Defence and
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Counter Claim, the Appellant filed before the lower Court, a Motion on Notice, seeking an order for leave to join the Honourable Minister of Power, Works and Housing as a Co-Plaintiff. The Court, in a considered ruling, refused the application, holding that the party sought to be joined has not been shown to be a necessary party to the action. Aggrieved, the Appellant filed the instant appeal on 3/7/18, pursuant to an order of this Court given on 26/6/18 for an extension of time to and for leave to appeal against the interlocutory decision of the lower Court.
In prosecution of his appeal, the Appellant filed a Brief of Arguments on 5/9/18, settled by Messrs Sunny O. Ake, Chris Ubogu and Unekwu Enagbani of Sunny Olurunmola Ake & Co in which two issues were formulated for determination, to wit:
1. Whether having regard to the pleadings and affidavit evidence placed before the lower Court by the Appellant and the 1st to 3rd Respondents, can it be said that the Court was right in dismissing the Appellant’s motion on notice for the joinder of the Honourable Minister of Power, Works and housing as a Co-Plaintiff in the suit, on the ground that,
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the Appellant could not show that the party sought to be joined is a necessary party to the suit or how the party sought to be joined will be affected by the outcome of the suit?
2. Whether the lower Court was right in coming to the conclusion that, if the honourable Minister of Power, Works and Housing, is joined as a Co-Plaintiff in the suit, he would put up a conflicting claim different from that of the Appellant, when there is no factual basis for such a conclusion?
The Respondents, in their Brief of Arguments filed on 20/9/18, settled by Messrs Abdullahi Zakariyya Zubaid Mora, Hafsat Umar, and Sani Shehu Idris of the Ministry of Justice, Kaduna State, formulated a sole issue to be determined by this Court as follows;
Whether having regard to the facts and circumstance of this case the Appellant/Applicant seeking to be joined had shown that he is a necessary party in this case.
The issues raised by both Counsel can be subsumed under the simple issue of:
Whether the lower Court was right to have refused the application of the Appellant to join the Hon. Minister of Works and Housing as a Co-Plaintiff to the suit at the lower Court.
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The lower Court, refusing the application, held as follows:
“Now, as I said, the Plaintiff is the Applicant in this motion, seeking to join the Minister for Works, Housing and Urban Development as a co-Plaintiff. The Applicant in the affidavit in support has not shown how the Minister will be affected by the outcome of this suit. The fact that the Plaintiffs’ certificate of occupancy was issued by the Ministry does necessary means that the minister will be affected by the outcome or if joined will not have a confuting interest. It is not shown that the minister is a necessary party in his absence this suit will not be effectually and completely determined. After all, the minister is not the applicant and has not shown interest in this suit and nothing to show that it is with his consent that the Applicant is seeking to join him. It is not shown by evidence that the Minister is joined will not put a conflicting claim in this case”.
Learned Counsel submits that, the findings made by the lower Court as a ground for dismissing the Appellant’s Motion for joinder as a Co-Plaintiff is clearly perverse, as the said findings are not
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based on the pleading and affidavit evidence placed before it by the Appellant and the 1st to 3rd Respondents. He cited the cases of Chief Ogolo & Ors vs. Chief Fubara (2003) FWLR (Part 169) 1285 at 1313 Paras H-B; Udengwu vs Uzuegbu & Ors (2003) FWLR (Part 179) 1173 at 1182-1183 Paras. H-C and Stephen Okedion & Anor vs. Federal Airport Authority of Nigeria & Anor (2008) FWLR (Part 441) 914 at 936 paras D-C, as authorities for when the judgment of the Court is perverse.
He further submitted that, having regard to the facts pleaded by the Appellant in paragraphs 11, 12 and 13 of the Appellant’s Statement of Claim with regard to the role played by the party sought to be joined and the reliefs claimed by the Respondents in the Counter Claim seeking to declare the Certificate of Occupancy null and void, the party sought to be joined has been shown not only to be a proper party but also a necessary party to the suit. There is no way, he argued, that the Court can make any pronouncement on the relief being sought by the Respondents without the party being joined and being heard in the proceedings as to why and how the Certificate of Occupancy was issued to the Appellant.
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Furthermore, as observed by the lower Court, it is the Federal Ministry of Power, Works and Housing that has the reversionary interest in the property. He contended that an application for joinder does not have to be made by the intending party or with his consent, for if his consent were mandatory, an existing party seeking a joinder would be unable to do so, even if the intending party is a proper party to the suit. He cited the cases of Alhaji Mudashiru Kokoro-owo & Ors vs Lagos State Government & Ors (2001) FWLR (Part 610 1709 AT 1717 Para H, Dr. John Olukayode Fayemi vs Olusegun Adebayo Oni & Ors. (2009) All FWLR (Part 493) 1254 at 1280 Para C.; Chief Abusi David Green vs Chief Dr. E.T. Dublin Green (2001) FWLR (Part 76) 795 at 814 Page F-H and Union Beverages Limited vs. Pepsi Cola International Limited & Ors. (1994) 2 SCNJ 157 at 174.
Learned Counsel contended further that, the party sought to be joined was served with a copy of the Appellant’s Motion on notice for joinder, but did not show any objection and did not file any counter affidavit, or any other process in opposition. He argued further
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that it is improper for a Court to supply evidence on facts not pleaded by the parties and for the Court to draw conclusions other than those based on evidence adduced in support of pleaded facts.
In his response, the learned Counsel to the Respondents submitted that the Appellant failed woefully to establish in his supporting affidavit that the right of the Hon. Ministry of Power, Works and Housing, hereafter referred to as “the Minister” would be affected by the outcome of the action and equally failed to establish that the Appellant has a common interest with the said Minster or are claiming the res in issue jointly and severally. He cited Order 13 Rules 2 of the Lower Court’s Rules 2007 and the case of Olufeagba vs. Abdul-Raheam (2009) 18 NWLR (Part 1173) 384 submitting that the above rule will not apply in the subject matter of litigation where the Plaintiff is not the employee of a common employer, nor were the services of the Plaintiff’s solicitors engaged by the party seeking to be joined. They have separate and distinct interests, he contended. He referred the Court to the case of Ige vs. Farinde (1994) 7 NWLR (Part 354)
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Page 42 on factors that the Courts consider in deciding whether or not to make an order for joinder.
In order to determine whether the Minister is a proper party to be joined, it is necessary to give a summary of the history of the case as well as the claims of the parties.
The Appellant alleges, by its Statement of Claim, that it was issued with consent to use the piece of land in dispute for Christian fellowship by the Hospital Management Committee of the Ahmadu Bello University Teaching Hospital, Kaduna. Following this consent, it sought and obtained approval of its building plans and constructed a chapel and other buildings on the site. The larger piece of land was a Federal Government land. Following the relocation of the Teaching Hospital to Shika, Zaria, the Appellant decided to take steps to regularize its ownership and possession of the land and applied for, and was granted a Federal Government Certificate of Occupancy. Surprisingly, the 1st to 3rd Respondents started making unjustifiable claims over the land, claiming that the land formed part of the land ceded to it by the Federal Government, which claim the Appellants deny.
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They therefore seek the following reliefs against the Respondents:
a. A declaration that the Plaintiff is the lawful lessees and the beneficial owner of the statutory right of occupancy of a parcel of land located at Tafawa Balewa way Kaduna, Kaduna North Local Government Area, Kaduna State.
b. A declaration that the Plaintiff who had been in exclusive possession of the said land since 1987 is entitled to continue to have and enjoy peaceful and undisturbed possession of the same, to the exclusion of the Defendants.
c. A declaration that the Defendants have no power to forcibly take over the said land from the Plaintiff.
d. A declaration that the attempt or plan by the Defendants to forcibly take over the said parcel of land, including all the buildings and appurtenances thereon from the Plaintiff, is unlawful, unconstitutional and constitutes a violation of the Plaintiff’s rights of ownership and possession thereof.
e. An Order of perpetual injunction restraining the Defendants, their agents, servants, privies and any other person(s) acting for or through them from entering in to the said parcel of land or doing anything whatsoever that
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would interfere with the Plaintiffs right of ownership and possession thereof.
In opposition, the Respondents filed a Statement of Defence and Counter Claimed for the following:
i. A Declaration that the 1st Defendant/Counter-claimant is the legal title holder of the property lying and situate at of No. 28/30. Tafawa Balewa way, Kaduna known as Chapel of Good News.
ii. A Declaration that the 1st Defendant became the legal title holder of the property lying and situate at No. 28/30. Tafawa Balewa way, Kaduna known as Chapel of Good News by handing over and transfer of ownership of all the properties belonging to the Federal Government under the control of the then Ahmadu Bello University Teaching Hospital, Kaduna vide the Handing over/Taking over Notice of Phase 1 structure of Ahmadu Belo University Teaching Hospital, Kaduna to Kaduna State Government dated the 7th day of June, 2006.
iii. A Declaration that the purported Certificate of Occupancy No. Doo4913 dated the 18th February, 2011 granted to Chapel of Good News by the Federal Ministry of Works, Housing and Urban Development is null and void as there is no any Documents setting aside the
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transfer of Ownership of the said property in dispute by the Federal Government of Nigeria before issuing a new Certificate to the Plaintiff/Defendant.
The principles for joinder have been well stated in the cases cited by both Counsel. A necessary party has been held to be one not only interested in the dispute but whose presence is essential for the effectual and complete determination of the matter. It is a party not only interested in the dispute, but the matter cannot be decided fairly in his absence. See All Progressives Congress v. Peoples’ Democratic Party (2015) 15 NWLR Part 1481 Page 1 at 60 Para F-G; 62 Para B per Ngwuta JSC.
A necessary party is that person whose presence is essential for the effectual and complete determination of the issues before the Court. It is a party in the absence of whom the whole claim cannot be effectually and completely determined -ADC v Bello (2017) 1 NWLR Part 1545 Page 112 at 136 Para F-H per Ogunbiyi JSC; Okwu v. Umeh (2016) 4 NWLR Part 1501 Page 120 at 143 Para B-C per Okoro JSC; B.B. Apugo & Sons Ltd v. Orthopaedic Hospital Management Board (2016) 13 NWLR Part 1529 Page 206 at 263 Para A per
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Kekere-Ekun JSC; Green v Green (2001) FWLR Part 76 Page 795 at 814 Para F-H per Oputa JSC; Poroye v Makarfi (2018) 1 NWLR Part 1599 Page 91 at 142-143 Para G-D per Ariwoola JSC
The rules permit joinder of parties who claim jointly, severally or in the alternative, as Plaintiffs or Defendants, so as to avoid multiplicity of actions, particularly where they have a common interest and common questions of law and common demand. The judgment of the Court shall be given to one or more of the parties as may be found entitled to reliefs in the action. See Olufeagba vs. Abdul-Raheam (2009) 18 NWLR Part 1173 Page 384 per Adekeye JSC.
With regard to joinder as a Co-Plaintiff, a right to relief must arise from the same transaction and it must be shown that there is no conflict of interest between them. See Ayankoya v. Olukoya (1996) 4 NWLR Part 440 Page 1, SC at 15 Para B-D; at 16 Para B-D, G-H per Adio JSC; Fadayomi v. Sadipe (1986) 1 NSCC Vol. 17 Page 570 at 574 Lines 15-25 per Coker JSC; Okelue v. Medukam (2011) 2 NWLR Part 1230 Page 176 at 200 Para A-B per Lokulo-Sodipe JCA.
It follows, in consequence, that a person cannot be made a Plaintiff without
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his consent. SeeFadayomi v. Sadipe (1986) 1 NSCC Vol. 17 Page 570 at 574 Lines 15-25 per Coker JSC.
In the instant case, the claim of the Appellant is in protection of the legitimacy of its title. This has not been shown to be a claim of the Minister for Power, Works and Housing. The party sought to be joined has not sought its joinder as a Plaintiff, even though the Appellant alleges that he has filed no counter affidavit or in any way opposed its motion.
The failure to file a counter affidavit is, however, not enough to show that his interest in the action is the same as the Appellant or that he has a cause of action against the Respondents.
The fact that the Certificate of Occupancy issued by the Hon. Minister to the Appellant is being questioned by the Respondents, does not convert the Appellant’s grouse to his grouse. Support from the Ministry, by evidence, is certainly necessary for the validation of the Appellant’s title.
I agree, as submitted by the Appellant’s Counsel, that a Court cannot make an order against a person who is neither a party nor a privy in a proceeding before it. See
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Alhaji Mudashiru Kokoro-Owo v Lagos State Government (2001) FWLR Part 61 Page 1709 at 17717, Fayemi v Oni (2009) All FWLR Part 493 Page 1254 at 1280. This is however no reason to join the Minister as a Co-Plaintiff, I hold. It is also not necessary for the Minister to be a party to the action to enable the lower Court give validity to the Appellant’s title.
The trial Court was thus not in error to have refused the application of the Appellant for the joinder of the Hon. Minister of Power, Works and Housing as a party to the action. I accordingly resolve the sole issue for determination against the Appellant. This appeal fails and is accordingly dismissed. The ruling of the lower Court delivered on 14/2/2018 is, in consequence, affirmed.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment by my learned brother Oludotun Adebola Adefope-Okojie JCA. I agree.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Oludotun Adebola Adefope-Okojie JCA.
I agree with reasoning and conclusion reached in the judgment.
The appeal therefore lacks merit, and is hereby dismissed.
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Appearances:
Christ Ubogu, Esq. with him, Deborah Oke, Esq. For Appellant(s)
A. Saleh, SC Ministry of Justice Kaduna State for all Respondents For Respondent(s)
