MISS BOMA PEPPLE v. MR. T.A. PRINCEWILL (2011)

MISS BOMA PEPPLE v. MR. T.A. PRINCEWILL

(2011)LCN/4338(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of February, 2011

CA/PH/159/2009

RATIO

JOINDER OF PARTIES: CONSEQUENCE OF NON-JOINDER OF ALL THE PERSONS LIKELY TO BE AFFECTED BY THE DECISION IN A DECLARATORY ACTION

In all actions for declarations, it is the rule that all persons likely to be affected should be made parties to the action and the court will not make the declaration in such persons’ absence. That is to say, before a declaratory order is made all necessary parties must before the court: See IPADOLA v. OSHOWOLE (1987) 3 NWLR 18. The supreme court, in AEDGBENRO v. A.G. FEDERATION & ORS (1962) 1 ALL NLR 431, held that it could not determine one of the reliefs claimed, to wit; a declaration that the plaintiff’s appointment, as premier of Western Region, was valid, on the grounds inter alia that the Plaintiff did not make all the necessary parties, parties to the action. One of such necessary parties was the former premier who the Plaintiff was purportedly appointed to replace. He was not made a party even as the claim of the plaintiff was disputed. IN THOMAS V. LOCAL GOVERNMENT SERVICE BOARD (1965) NMLR 310 the Supreme Court declined to grant one of the reliefs sought by the Plaintiff/Appellant to the effect that he was and had, at all material times, been entitled to receive salaries from the Local Government Council under which he worked before the disciplinary action, because that Local Government Council, a distinct body from the Local Government Service Board that merely exercised disciplinary powers over the said Plaintiff, was not joined as a defendant. The Local Government Service Board, unlike the Local Government council, did not have the powers or duty to pay the salaries of the staff in the Local Government Council. Where the Plaintiff seeks a declaration that a statute or statutory instrument is invalid, the government by which the law or statute was made, usually through its Attorney-General, must be made a party; as the statute or statutory instrument the Plaintiff seeks to invalidate or nullify is an act of the said government. For this See PEENOK INVESTMENT LTD V. HOTEL PRESIDENTIAL LTD (1982) 12 SC 1 at pages 54 – 55, 144 – 145. The same rule was applied in OBAIA v. ADESINA (1999) 2 SCNJ 1 at 18, in which a Chieftaincy Title Declaration instrument, sought to be invalidated, was held not justiceable without the joinder of makers of the said statutory instrument as defendants, since they were necessary parties. PER EJEMBI EKO, J.C.A.

WHETHER THE COURT WILL REFRAIN FROM MAKING A DECLARATION OF A RIGHT ABOUT MATTERS OF LAW WHEN IT IS APPARENT THAT THE DECLARATION ASKED FOR CONCERNS OTHER INTERESTED PARTIES, WHO ARE NOT BEFORE THE COURT

The courts are generally not disposed to making a declaration of a right about matters of law when it is apparent that the declaration asked for concerns other interested parties, who are not before the court. This refrain or restraint accords with the principle of natural justice, that is audi altleram partem (hear the other party) now enshrined in the fair hearing provisions of the 1999 Constitution, section 36(1) thereof. Order 6, rule 2(1) of the Court of Appeal Rules, 2007 enjoins every appellant, in his notice of appeal, “to state the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal.” All these are designed to attain the ends of justice. PER EJEMBI EKO, J.C.A.

EFFECT OF NON-COMPLIANCE WITH THE PROVISION OF ORDER 6 RULE 2(1) OF THE COURT OF APPEAL RULES

Order 6 Rule 6 of the Court of Appeal Rules state thus “The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.” Order 6 Rule 2(1) of the Rules makes it mandatory that a notice of appeal shall state the names and addresses of ALL PARTIES DIRECLY AFFECTED by the appeal – – -.” Failure to do this vitiates the notice of appeal, renders it incompetent and makes the entire appeal liable to be struck out on ground of incompetence. The Notice of Appeal is the substratum of the appeal. See UWAZURIKE v. A.G. FED (2001) 8 NWLR (Pt.1035) 1; A-G FED v. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (Pt.618) 187. PER T.O. AWOTOYE, J.C.A.

PARTIES DIRECTLY AFFECTED BY AN APPEAL: WHO IS A “PARTY DIRECTLY AFFECTED BY THE APPEAL”

In my view a party directly affected by the appeal is a party to the action at the trial court. By virtue of section 12 of the Court of Appeal Act 2004 such a party has a right of audience before the Court of Appeal. Section 12 of the Court of Appeal Act read, “Subject to the provisions of any other enactment is all in all proceedings before the Court of Appeal; the parties may appear in person or be represented by legal practitioners” Order 6 Rule 8 of the Court of Appeal Rules differentiates between the parties to the action or party directly affected by the appeal as opposed to a person not a party or not directly affected by the appeal. Order 6 Rule 8 reads thus:- The Registry of the court below shall after the notice of appeal has been filed, cause to be served a true copy thereof upon each parties mentioned in the notice or appeal but it shall not be necessary to serve any party not directly affected: Provided that the court may, of its own motion, or on the application of any person claiming to be affected, direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and make such orders as might have been made if the persons served with such notice had been originally parties to the appeal. PER T.O. AWOTOYE, J.C.A.

JUSTICE

MUSA DATTIJO MUHAMMAD (OFR)Justice of The Court of Appeal of Nigeria

EJEMBI EKOJustice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYEJustice of The Court of Appeal of Nigeria

Between

MISS BOMA PEPPLE (For herself and as representing the Estate to BEKEE SOLOMON ACCRA PEPPLE (Deceased)Appellant(s)

AND

MR. T.A. PRINCEWILLRespondent(s)

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Rivers State (Coram: C.I. Uriri, J) delivered on 24th November, 2006 in the Suit No PHC/39/93 wherein the parties were
T.A. PRINCEWILL – Plaintiff

AND

1. BEKEE SOLOMON ACCRA PEPPLE
2. ABANDONED PROPERTIES COMMITTEE Respondent
This Plaintiff, now the Respondent, had averred in the amended statement of claim that –
At all times material to this suit, the 2nd Defendant (formerly Abandoned Properties Implementation Committee) is Federal Government Agency charged with the sale of Abandoned Properties in Rivers State, now carrying on its operations at produce House, No 9 Moscow Road, port Harcourt.
This fact was expressly admitted in the statement of defence filed by the 1st Defendant, now Appellant. It is therefore not in dispute.
The dispute constituting the cause of action was the alleged sale of one propety, known as plot B, Block 58 Township Layout, Port Harcourt to the 1st Defendant/Appellant for N880.00 by the 2nd Defendant after the previous sale of the same property to the Plaintiff/Respondent. The Plaintiff/Respondent claimed that he had paid the sum of N4,500.00 the assessed value of the property in September, 1977 and had been put into possession of the property upon the sale of the same property to him in 1977. In the Amended statement of claim the Plaintiff/Respondent sought inter alia –
A declaration that the offer and/or sale of the property known as plot B, Block 58 Township Layout Port Harcourt otherwise called No 51, Bonny Street, Port Harcourt to the 1st Defendant is invalid – and the 1st Defendant consequently has no interest in the said property rightly sold to the plaintiff and is owned by the plaintiff.
The Plaintiff/Respondent also prayed that a perpetual order of injunction restraining the 1st Defendant and/or his agents or successors from entering on the property or laying adverse claims of title to the disputed property be made in his favour. The act the Plaintiff wanted invalidated was the subsequent purported sale of disputed property to the 1st Defendant by the 2nd Defendant, after the Abandoned Properties Committee (2nd Defendant) had earlier sold the same property to the Plaintiff. The Abandoned Properties Committee (the 2nd Defendant) was therefore a necessary party in that suit. It is no doubt an agency of the Federal Government of Nigeria.
In the judgment appealed, particularly that portion at pages 82 – 83 of the Record, the trial court declared that the Plaintiff/Respondent was the person entitled to the statutory right of occupancy over the disputed property. It invalidated the subsequent sale of the property to the 1st Defendant/Appellant by the 2nd Defendant. Hence, this appeal.
The 1st Defendant had died before this appeal was filed on 24th April, 2008. The present Appellant brought an application for leave to appeal as an interested party. The leave sought was granted on 21st April, 2008 and this appeal was duly filed on 24th April, 2008. Apparently before the leave to appeal as an interested party was granted on 21st April, 2008; the Applicant the present Appellant, had, as disclosed in paragraph 2.03 of the Appellant’s Brief moved this court to strike out the name of the 2nd Defendant, as a respondent in the application for leave to appeal as an interested party. The 2nd Defendant/Respondent was accordingly struck off the processes in this appeal on 30th October, 2007. As it is now, the 2nd Defendant, a very necessary party in the suit at the trial, which is the subject of this appeal, is no longer a party. This was what agitated me to checking the authorities on whether this appeal is competent in the absence of a necessary party thereto. Moreso, that an appeal is a continuation of the suit appealed.
In all actions for declarations, it is the rule that all persons likely to be affected should be made parties to the action and the court will not make the declaration in such persons’ absence. That is to say, before a declaratory order is made all necessary parties must before the court: See IPADOLA v. OSHOWOLE (1987) 3 NWLR 18.
The supreme court, in AEDGBENRO v. A.G. FEDERATION & ORS (1962) 1 ALL NLR 431, held that it could not determine one of the reliefs claimed, to wit; a declaration that the plaintiff’s appointment, as premier of Western Region, was valid, on the grounds inter alia that the Plaintiff did not make all the necessary parties, parties to the action. One of such necessary parties was the former premier who the Plaintiff was purportedly appointed to replace. He was not made a party even as the claim of the plaintiff was disputed.
IN THOMAS V. LOCAL GOVERNMENT SERVICE BOARD (1965) NMLR 310 the Supreme Court declined to grant one of the reliefs sought by the Plaintiff/Appellant to the effect that he was and had, at all material times, been entitled to receive salaries from the Local Government Council under which he worked before the disciplinary action, because that Local Government Council, a distinct body from the Local Government Service Board that merely exercised disciplinary powers over the said Plaintiff, was not joined as a defendant. The Local Government Service Board, unlike the Local Government council, did not have the powers or duty to pay the salaries of the staff in the Local Government Council.
Where the Plaintiff seeks a declaration that a statute or statutory instrument is invalid, the government by which the law or statute was made, usually through its Attorney-General, must be made a party; as the statute or statutory instrument the Plaintiff seeks to invalidate or nullify is an act of the said government. For this See PEENOK INVESTMENT LTD V. HOTEL PRESIDENTIAL LTD (1982) 12 SC 1 at pages 54 – 55, 144 – 145. The same rule was applied in OBAIA v. ADESINA (1999) 2 SCNJ 1 at 18, in which a Chieftaincy Title Declaration instrument, sought to be invalidated, was held not justiceable without the joinder of makers of the said statutory instrument as defendants, since they were necessary parties.
Again, in CHIEF ADENIRAN OGUNSANYA v. PROF. ISHAYA AUDU & ANOR (1982) 3 NCLR 529 the Plaintiff claimed a declaration that the refusal of the President of the Federal Republic of Nigeria to receive the resignation of a Minister in his government and relieve him of his duty in the government was ultra vires the president. The action was dismissed on the ground that the President, who was to accept the resignation of the Minister and relieve him of his appointment, was not made a party, and the President was a necessary party in the circumstance. The suit will be hollow where the necessary party for the attainment of the reliefs sought therein is not made a party thereto.
The courts are generally not disposed to making a declaration of a right about matters of law when it is apparent that the declaration asked for concerns other interested parties, who are not before the court. This refrain or restraint accords with the principle of natural justice, that is audi altleram partem (hear the other party) now enshrined in the fair hearing provisions of the 1999 Constitution, section 36(1) thereof. Order 6, rule 2(1) of the Court of Appeal Rules, 2007 enjoins every appellant, in his notice of appeal, “to state the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal.” All these are designed to attain the ends of justice.
By all parameters the 2nd Defendant, the Abandoned properties Committee, an agency of the Federal Government of Nigeria, is a necessary party in this appeal and a party directly affected by this appeal. The appeal will be incompetent without its joinder. It is idle to say, as did the Appellant, that “the 2nd Respondent is no longer in existence.” As admitted by the 1st Defendant, in his statement of Defence, the 2nd Defendant was an agency of the Federal Government. If it was wound up the relevant authorities that wound up its activities, including the office of the Attorney-General of the Federation could have been made parties in the suit as its successors. This is exactly what the present Appellant herself did, as an interested party, and took over from the deceased 1st Defendant’, as the Appellant in this matter.
The invalidation of the purported sale of the disputed property to the 1st Defendant/Appellant, subsequent to the previous sale of the same property to the plaintiff/Respondent, by the 2nd Defendant is the very basis or substratum of this appeal. It is the act of the Abandoned properties committee, the 2nd Defendant that the trial court invalidated in its judgment that has prompted this appeal. The 2nd Defendant is therefore a necessary party in this appeal. This appeal will not be properly constituted without the said 2nd Defendant, as a respondent. It is incompetent, order 6, Rule 6 of the Court of Appeal Rules, 2007 empowers us to strike out any incompetent notice of appeal where the appeal itself is not competent. Accordingly, this appeal is hereby struck out for being incompetent.
Costs at N50,000.00 are hereby awarded to the Respondent against the Appellant.

M.DATTIJO MUHAMMAD, OFR, J.C.A.: I read before now the lead judgment of my learned brother Eko JCA. I agree with him that it is a fruitless venture to press a right in the absence of a necessary defendant in the matter. In the instant case the 2nd defendant at the court below, Abandoned Properties Committee, is an important and necessary party in the appeal since whatever relief the Appellant eventually acquires remains phyrric in the party’s absence. For this and the fuller reasons articulated in the lead judgment I also allow the appeal. I make the same order on costs of the appeal as made by my learned brother.

T.O. AWOTOYE, J.C.A.:  I have the privilege of reading the draft of the judgment just delivered by my learned brother, EJEMBI EKO, JCA. I agree that the appeal is incompetent. Order 6 Rule 6 of the Court of Appeal Rules state thus
“The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”
Order 6 Rule 2(1) of the Rules makes it mandatory that a notice of appeal shall state the names and addresses of ALL PARTIES DIRECLY AFFECTED by the appeal – – -.”
Failure to do this vitiates the notice of appeal, renders it incompetent and makes the entire appeal liable to be struck out on ground of incompetence. The Notice of Appeal is the substratum of the appeal. See UWAZURIKE v. A.G. FED (2001) 8 NWLR (Pt.1035) 1; A-G FED v. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (Pt.618) 187.
What then is the meaning of parties directly affected by the appeal? In my view a party directly affected by the appeal is a party to the action at the trial court.
By virtue of section 12 of the Court of Appeal Act 2004 such a party has a right of audience before the Court of Appeal. Section 12 of the Court of Appeal Act read,
“Subject to the provisions of any other enactment is all in all proceedings before the Court of Appeal; the parties may appear in person or be represented by legal practitioners”
Order 6 Rule 8 of the Court of Appeal Rules differentiates between the parties to the action or party directly affected by the appeal as opposed to a person not a party or not directly affected by the appeal.
Order 6 Rule 8 reads thus:-
The Registry of the court below shall after the notice of appeal has been filed, cause to be served a true copy thereof upon each parties mentioned in the notice or appeal but it shall not be necessary to serve any party not directly affected:
Provided that the court may, of its own motion, or on the application of any person claiming to be affected, direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and make such orders as might have been made if the persons served with such notice had been originally parties to the appeal.”
In my respectful view a party directly affected by the appeal is the party who has a right of appeal in the appeal as guaranteed under section 241 of the 1999 Constitution as distinct from a person who needed leave of court to appeal as stipulated under section 243(a) of the 1999 Constitution.
Section 243(a) of the said Constitution states-
“Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person of , subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a state to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.”
It follows from the above that an appellant must mandatorily state in the notice of appeal the names and addresses of ALL PARTIES TO THE ACTION subject matter of the appeal to comply with the requirements of order 6 Rule 2(1) of the court of Appeal Rules. This apparently is to ensure that the right to fair hearing of every Plaintiff, defendant, applicant or respondent in the proceeding or action at the lower court is not trampled upon. Under order 6 Rule 8 such notice of appeal must be served on the parties mentioned therein.
In this appeal, the parties to the action in suit No PHC/39/93 at the lower court were MR. J.A. PRINCEWILL (PLAINTIFF) AND BEKEE SOLOMON ACCRA PEBBLE AND ABANDONED PROPERTIES COMMITTEE DEFENDANTS.
When on 24/11/2006, the trial court gave judgment; it was against the two defendants. The judgment as per pages 80 – 83 read inter alia thus-
JUDGMENT
As per the amended statement of claim filed 22/3/98 the claimant’s claims against the defendants jointly and severally are as follows “…I have carefully examined the evidence of the claimant as well as the compelling submission of his counsel and the case law authorities cited in adumbration of those points and have no difficulties whatsoever is agreeing entirely with him that, that is the position of the law. According it is ordered as prayed…”
However in the Notice of Appeal filed by the appellant on 24-4-2008 the appellant gave the following names of persons directly affected by the appeal.
(i) MISS BAMA PEPPLE       APPELLANT
(ii) MR. T.A. PRINCEWILL        RESPONDENT
The name and address of ABANDONED PROPERTIES COMMITTEE was conspicuously omitted. This falls short of the mandatory requirement of Order 6 Rule 2(1) of the Court of Appeal Rules.
In the circumstance, I hold that the Notice of Appeal is incompetent. This appeal is therefore incompetent. It is hereby struck out. I abide by the costs as assessed by my learned brother, EJEMBI EKO, JCA in the lead judgment.
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