KADIRI OKANOLA V. CHIEF JONATHAN ABIOYE & ORS.
(2011)LCN/4933(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of November, 2011
CA/I/133/2000
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISION OF ORDER 15 RULES 1 & 2 OF THE COURT OF APPEAL RULES 2011 AS REGARDING JOINDER OF PARTIES
Order 15 Rules (1) & (2) provide: 1. “It shall be the duty of Counsel representing a party to an appeal to give immediate notice of the death of that party, to the registrar of the court below or to the Registrar of the court (as the case may require) and to all other parties affected by the appeal as soon as he becomes aware of the fact. 2. Where it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of Order 4 Rule 10, be made in that behalf to the court below or the court either by any existing party to the appeal or by any person who wishes to be added or substituted.” PER CHINWE EUGENIA IYIZOBA J.C.A.
JOINDER OF PARTIES: WHETHER A PERSON CAN BE JOINED AS A DEFENDANT AGAINST THE WISHES OF A PLAINTIFF
In Re Moeaii (1986) 1 NWLR (Pt. 19) 759, the Supreme Court held that a person can be joined as a defendant against the wishes of a plaintiff when the justice of the matter demands that the party has to be joined before the case can be properly determined or when the plaintiffs case or the defendant’s case in the existing action cannot be effectively and effectually determined without the joinder. PER CHINWE EUGENIA IYIZOBA J.C.A.
JOINDER OF PARTIES: CONDITION THAT MUST BE SATISFIED FOR A COURT TO EXERCISE ITS DISCRETION TO ORDER THE JOINDER OF PARTIES
For a court to exercise its discretion to order the joinder of a party to a suit, the applicant must satisfy the court that he is a person who ought to have been joined in the suit in the first instance or that his presence before the court is necessary to enable the court effectually and completely adjudicate upon and settle all the issues involved in the case. See Green vs. Green (1987) 3 NWLR (61) 480; Ige vs. Farinde (1994) 7 NWLR (354) 42; Adefarasin vs. Dayekh (2007) ALL FWLR (348) 911 @ 933 D – E. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBIA Justice of The Court of Appeal of Nigeria
MOORE A.A. ADUMIEN Justice of The Court of Appeal of Nigeria
Between
1. KADIRI OKANOLA
(For himself and on behalf
Of Abiodun ruling house of
Okinni) Appellant(s)
AND
1. CHIEF JONATHAN ABIOYE (Esa of Okinni for himself and on behalf of Okinni Kingmakers)
2. CHIEF YUSUF OYEWALE (Otun of Okinni) RESPONDENTS
3. CHIEF TIJANI ADELEKE (Ekerin of Okinni)
4. CHIEF MANASEH BAMIDELE (Agbakin of Okinni)
5. CHIEF SAMUEL OGUNREMI (Alagba – Elect
6. CHIEF LASISI OYELEKE (Odofin – Elect) RESPONDENTS/APPLICANTS
7. CHIEF RAIFU ODEJAYI (Lorigan – Elect)
IN RE: ANTHONY AKINTUNDE OYEDIRAN APPLICANT/PARTY INTERESTED Respondent(s)
CHINWE EUGENIA IYIZOBA J.C.A. (Delivering the Lead Ruling) This ruling is in respect of an application dated 16th November, 2009 and filed on the same date praying for an order of this court deleting the names of 2nd, 4th and 7th respondents now deceased as respondents in this appeal; and for leave of the court permitting Anthony Akintunde Oyediran to join as a respondent in the appeal. The grounds for the application are set out in the motion paper. The application is supported by a 6 paragraph affidavit with one annexure, exhibit A; letter dated 7/9/09 to the Chief Registrar Court of appeal Ibadan notifying him of the death on various dates of the 2nd, 4th and 7th respondents.
In opposition to the application for joinder the 1st respondent filed, a 21 paragraph counter affidavit deposed to by one Adegoke Ogunsola a legal practitioner in the law firm of Olatoye Aminu & Co, the 1st respondent’s counsel. There are five exhibits annexed to the counter affidavit. The appellant as respondent in opposition also filed a counter affidavit of 23 paragraphs deposed to by Rashidi Isamotu, legal practitioner in the law office of O. Fagbemi & Co, appellant’s counsel.
In response to these counter affidavits, the applicant/party interested filed two separate further affidavits. The further affidavit in response to the 1st respondents counter affidavit is dated 15/2/10 and filed same day with 9 paragraphs. The further affidavit in response to the appellant/respondent’s counter-affidavit is dated 17/2/10 and filed same day with 6 paragraphs. The applicant/party interested also filed a further affidavit dated 27/4/10 on same day with 5 paragraphs and three exhibits.
In moving the application, Awoniyi Alabi Esq learned counsel for the applicant/party interested submitted that the application was brought pursuant to Section 15 of the Court of Appeal Act, 2004, Order 15 rules 1 & 2 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of this court. Counsel submitted that the applicant had been a stakeholder and a necessary party in the appeal right from the lower court where his interest was represented by the deceased 2nd, 4th and 7th respondents. He further submitted that the failure of the applicant to join in the case in the lower court was a procedural irregularity which ought not to affect the present application.
Counsel relied on the case of Re Mogaji (1986) 1 NWLR (Pt.19) 759 @ 766 – 768B. Citing also the cases of Re Abacha (2000) FWLR (Pt.2) 217 @ 230. para 3 & 235. para 6: Uku v. Okumagbe (1974) All NLR 429 @ 446: Oiukwu v. Gov. of Lagos State (1985) 2 NWLR (Pt.10) 806 @ 815 G – H, learned counsel submitted that this court can join the applicant even against the wish of the other respondents. Learned counsel urged us to grant the application.
Wuraola Ogunfolabi Esq for the appellant/respondent relying on the case of Yakubu v. Governor of Kogi State (1995) 8 NWLR (Pt.414) 386 @ 402 submitted that the applicant failed to disclose to the Honourable court his interest in this appeal. Counsel contended that the applicant’s affidavit did not show that any claim was made against him in the lower court or that the judgment of the lower court affected him in any way. Counsel submitted that the case has been on for over 20 years and the applicant was aware of its pendency and waited till now to apply to be joined. Citing the case of Osho & Anor v. Foreign Finance Corporation & Anor (1991) 4 NWLR (Pt.184) 157 @ 171. Counsel urged us to refuse the application.
The 1st respondent’s counsel was absent but was duly served with hearing notice.
It is necessary to give a brief resume of the facts of this case for proper understanding or grasp of the issues involved in this application.
The dispute is in respect of the stool of Olokinni of Okinni, a minor Chieftaincy in Egbedore Local Government Area of Osun State. There are seven ruling houses namely, (1) Oluyeyin (2) Atoyebi (3) Oyewole (4) Olatunbosun (5) Abiodun (6) Kinnimofisomo and (7) Olanrewaju. Whenever a vacancy occurred, all the ruling houses except the ruling house that produced the last Olokinni vied for the vacant stool. Each ruling house nominated its candidate and forwarded same (according to the appellants) to the prescribed authority, the Oludo of Ido-Osun (the 1st defendant/appellant) for consideration and approval. The appellants claimed there were no kingmakers. But the plaintiffs/respondents disagree. Their stand is that there are kingmakers and that the names of the candidates are forwarded to Okinni Kingmakers whose duty is to consider and select a candidate out of the lot and present same to the Oludo, the prescribed authority for approval, appointment and installation. On the death of the last Olokinni, Oba Yesufu Oyewumi, from Atoyebi ruling house on 11/6/90, the other six ruling houses except Atoyebi vied for the vacant stool and those interested submitted the names of their nominees for consideration. While the meeting of the kingmakers was on as to which ruling house to select from, a meeting was held at the palace of the Oludo where it was agreed that only the ruling houses that had produced only one Olokinni in the past should be considered in fairness to all the ruling houses. The ruling houses that fell into this category were three – (1) Oyewole (2) Kinnimofisome (3) Abiodun. Of these three ruling houses Oyewole withdrew from the race on the ground that she had no suitable candidate. The second ruling house Kinnimofisome claimed they presented one candidate Anthony Akintunde Oyediran, the applicant/party interested herein. There was however another claimant from the ruling house. So there was some kind of internal wrangling. The third ruling house of Abiodun presented the 2nd defendant/appellant. The 1st plaintiff the head of the kingmakers who was to present a candidate to the prescribed authority ignored the candidates from the recommended ruling houses and picked the second plaintif, Rufus Olaniyi Ilori (now deceased) from Olatunbosun ruling house. The prescribed authority the 1st defendant/appellant apparently cashed in on the confusion and inspite of protest from the community appointed and installed Kadiri Okanola, the 2nd defendant/appellant as the Olokinni. The 1st plaintiff Abioye, Esa of Okinni for himself and on behalf of Okinni Kingmakers with the deceased Rufus Ilori as 2nd plaintiff sued the prescribed authority, Oba Jimoh Oyeyemi, the Oludo of Ido-Osun as 1st defendant and Okanola on behalf of Abiodun ruling house as 2nd defendant. The 3rd – 8th defendants on their own as kingmakers now applied and were joined as defendants in the suit. In the suit the plaintiffs claimed as follows:
1. Declaration that it is the traditional role of Okinni Kingmakers headed by the 1st plaintiff to select a candidate for the vacant stool of Olokinni of Okinni.
2. Declaration that the selection of the 2nd defendant for the vacant stool of the said Olokinni by the 1st defendant and his subsequent installation by the 1st defendant …..is contrary to Okinni native law and custom and is therefore null and void and of no effect.
3. Declaration that the selection of the 2nd plaintiff to fill vacant stool of Olokinni is in accordance with native law and custom. 4. Injunction to restrain the 2nd defendant from parading himself as the Olokinni of Okinni or performing functions attached to the office till the determination of this suit.
The learned trial Judge granted declarations (1) and (2) above but dismissed reliefs (3) and (a). The 1st and 2nd defendants being dissatisfied with the judgment of the lower court with respect to reliefs (1) and (2) appealed to this court. It is in respect of this appeal that the applicant/party interested is seeking to be joined as a party.
This application for joinder is brought under Section 15 Court of Appeal Act, 2004 and order 15 rules 1 & 2 of the Court of Appeal Rules 2011. Order 15 Rules (1) & (2) provide:
1. “It shall be the duty of Counsel representing a party to an appeal to give immediate notice of the death of that party, to the registrar of the court below or to the Registrar of the court (as the case may require) and to all other parties affected by the appeal as soon as he becomes aware of the fact.
2. Where it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of Order 4 Rule 10, be made in that behalf to the court below or the court either by any existing party to the appeal or by any person who wishes to be added or substituted.”
It was stated as one of the grounds for the application that the applicant Anthony Akintunde Oyediran is a rival candidate/claimant to Olokinni Chieftaincy with the appellant; that the 2nd – 7th respondents had been defending the suit since the trial stage and up to this appeal for themselves and on his behalf. An examination of the processes filed in the lower court especially the statement of defence of the 3rd – 8th defendants at pages 11 – 18 of the record of appeal confirm that indeed the applicant is a claimant to the stool in dispute. Paragraph 6 of the statement of defence of the 3rd – 8th defendants who are kingmakers in Okinni township averred that the applicant was chosen by a majority vote of 6-3-1 to be presented to the prescribed authority for approval as the next Olokinni of Okinni. It is consequently not in doubt that the applicant is an interested party who ought to have been joined in the suit right from inception when the 3rd – 8th defendants were joined. But it appears that the primary interest of the 3rd – 8th defendants in joining as parties was to protect their interest as Kingmakers, and not necessarily to fight the course of the applicant. That is why no counter claim was made that the claimant is the rightful candidate nominated by the kingmakers. That is also why they were content to invite the claimant to testify as a witness instead of having him joined as a party. As pointed out by the respondents, this case has been on for a long time. It was filed in the year 2000, eleven years ago. It seems odd that it is only now that the case is on appeal, with issues narrowed down to the decision of the lower court being appealed against that the claimant would want to be joined as a party. Out of the six defendants’ kingmakers who were defending their interest as kingmakers and by implication the interest of the applicant, three are dead and this application also seeks to have their names struck out. The question therefore is whether it is necessary in the circumstances to add the name of the applicant as a party to the appeal at this stage. The lower court in its judgment declared that it is the traditional role of Okinni Kingmakers headed by the 1st plaintiff to select a candidate for the vacant stool of Olokinni of Okinni; and that the selection of the 2nd defendant for the vacant stool of the said Olokinni by the 1st defendant and his subsequent installation by the 1st defendant …..is contrary to Okinni native law and custom and is therefore null and void and of no effect. The defendants appealed. What purpose will be served by joining the applicant as respondent at this stage? Is his presence necessary for the determination of the appeal? Apart from the three deceased respondents, three other respondents, the 3rd, 5th and 6th are still available to continue with the appeal. One of the grounds alleged in the motion paper is that the chieftaincy tussle in the appeal cannot be effectively and effectually resolved unless the applicant is made a party to the appeal. The issues in this appeal have already been narrowed down to the declarations appealed against. The appeal will settle the issue of the role of the kingmakers in the selection process and the validity of the selection and installation of the 2nd defendant. The outcome of the appeal cannot impact on the alleged selection of the applicant by the Kingmakers as no counterclaim was made in the lower court. Notwithstanding that the applicant is a claimant to the stool in dispute, given the issues involved in this appeal, adding him as a party at this point will in my view serve no useful purpose.
In Re Moeaii (1986) 1 NWLR (Pt. 19) 759, the Supreme Court held that a person can be joined as a defendant against the wishes of a plaintiff when the justice of the matter demands that the party has to be joined before the case can be properly determined or when the plaintiffs case or the defendant’s case in the existing action cannot be effectively and effectually determined without the joinder. Neither of these conditions exists in this appeal. The presence of the applicant is not necessary for the determination of the appeal. Furthermore, from the conflicts in the affidavit evidence filed by the parties, the justice of the matter does not demand that he be joined as a party to the appeal at this stage. His interest is adequately protected by the surviving three respondents/kingmakers. Since no counterclaim was by the kingmakers in the lower court praying for a declaration that it is the name of the applicant that should be forwarded to the prescribed authority for approval and installation as the Olokinni of Okinni, the issue cannot be resolved in the present appeal. It is consequently not necessary to add the applicant as a party in this appeal.
In the circumstance, the first prayer in the motion paper succeeds. It is hereby ordered that the names of the 2nd, 4th and 7th deceased respondents be deleted as respondents in this appeal. The second prayer for leave to join the applicant Anthony Akintunde Oyediran as a respondent in this appeal fails. It is hereby dismissed with N10,000 costs in favour of the appellant.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have read before now the Ruling of my learned brother, Iyizoba, JCA just delivered. I agree with the reasoning and conclusion therein.
For a court to exercise its discretion to order the joinder of a party to a suit, the applicant must satisfy the court that he is a person who ought to have been joined in the suit in the first instance or that his presence before the court is necessary to enable the court effectually and completely adjudicate upon and settle all the issues involved in the case. See Green vs. Green (1987) 3 NWLR (61) 480; Ige vs. Farinde (1994) 7 NWLR (354) 42; Adefarasin vs. Dayekh (2007) ALL FWLR (348) 911 @ 933 D – E.
In the instant case the issue before the lower court as shown in paragraph 30 of the Amended Statement of Claim was the traditional role of the Okinni kingmakers in the selection of a candidate for the vacant stool of Okinni in Egbedore Local Government Area of Osun State and whether the selection of the 2nd Defendant (now Appellant herein) was contrary to Okinni native law and custom.
The 3rd – 8th Defendants as Kingmakers of Okinni Township applied to be joined in the suit. They defended their role in the selection process, which incidentally included the submission of the name of Anthony Akintunde Oyediran (the present applicant) from the Kinimofisomo Ruling House for consideration. It is thus not in doubt that the applicant was one of the contenders for the vacant stool and therefore had an interest in the outcome of the suit. For reasons best known to the parties at the time, he was not made a party to the suit before the lower court, nor did he apply to be joined. The 3rd – 8th Defendants defended the suit on the basis that any candidate for consideration to the vacant stool must first be chosen by the majority vote of all the Okinni Kingmakers before the selected candidate’s name would be forwarded to the Oludo of Ido-Osun, the Prescribed Authority, for his consent prior to installation. It was their contention that the 2nd Plaintiff never had the majority of the kingmakers’ votes. At the same time they challenged the eventual installation of the 2nd Defendant from the Abiodun Ruling House as the Olokinni of Okinni. The present applicant testified as a witness on their behalf.
The lower court granted the plaintiffs’ reliefs (i) and (ii) which are as follows:-
(i) “Declaration that it is the traditional role of Okinni kingmakers headed by the 1st Plaintiff to select a candidate for the vacant stool of Olokinni of Okinni in Egbedore Local Government of Osun State, Nigeria’
(ii) Declaration that the selection of the 2nd Defendant for the vacant stool of the said Olokinni by 1st Defendant and his subsequent installation as Olokinni by 1st Defendant at midnight 15/7/91 – 16/7/91 is contrary to Okinni native law and custom and is therefore null and void and of no effect.”
This is the basis of the appeal before this court. It is quite evident that these two issues can be completely and effectually resolved without the applicant being made a party to the appeal.
The 3rd, 5th and 6th Respondents are fully capable of pursuing the appeal to its logical conclusion. The applicant was content to sit back and allow them to defend the suit from 1991 till now. The notice of appeal was filed on 2/6/97 and entered in this court in the year 2000. The applicant has not satisfied this court that he is a necessary party in this appeal, as no reliefs were sought against him and the 3rd – 8th Defendants did not file a counter claim.
In concurrence with the lead ruling, I also grant the first prayer of the motion on notice dated and filed on 16/11/09 by deleting the names of the 2nd, 4th and 7th Respondents now deceased from the appeal, Prayer 2 is refused and accordingly dismissed. I also award costs of N10,000.00 in favour of the Appellant.
MOORE A.A. ADUMEIN, J.C.A.: I read before now the ruling just delivered by my learned brother, IYIZOBA, JCA,
I agree with my learned brother that the presence of Mr. Anthony Akintunde Oyediran is not necessary for the effective and effectual resolution of this appeal. The applicant, whose alleged interest is completely different and divorced from that of the existing respondents, may by his presence in this appeal introduce complications which will not lead to the expeditious determination and disposal of the appeal.
For these reasons and the more detailed reasons in the lead ruling, I hold that the application to have Mr. Anthony Akintunde Oyediran join this appeal as a respondent is hereby dismissed.
I abide by the order as to costs in the lead ruling.
Appearances
L.O. Fagbemi Esq.For Appellant
AND
Olatoye Aminu Esq.
Awoniyi Alabi Esq.For Respondent
