MR. LINUS CHINEDU OGOKE & ANOR v. EZE-ELECT CHUKWUMA GREG NDUKA & ORS
(2019)LCN/13568(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/OW/294/2016
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. MR. LINUS CHINEDU OGOKE
2. CHIEF BENJAMIN OSUNWA
(For themselves and as representing other members of Umualumaku/Umuihim Autonomous of Ehime Mbano L.G.A of Imo State except the 1st Respondent, his family members and cohorts) Appellant(s)
AND
1. EZE-ELECT CHUKWUMA GREG NDUKA
2. GOVERNOR, IMO NSTATE
3. ATTORNEY GENERAL AND COMMISSIONER
FOR JUSTICE, IMO STATE
4. COMMISSIONER FOR COMMUNITY GOVERNMENT COUNCIL AND CHIEFTAINCY AFFAIRS Respondent(s)
RATIO
THE MEANING OF THE PHRASE “SCHEDULING”
In tackling issue No. 2 which queries whether the trial Court was not bound by its scheduling order which it declined to follow and thereby breached the Appellants? right to fair hearing, it should be noted that the phrase scheduling order means the process of arranging or controlling the order of joining other parties to the suit. It is also a Court order designed to manage the flow of a case from the date it is entered through the beginning of the trial. The schedule order is said to be the roadmap that governs the course of a case and that a schedule, once ordered, shall not be modified except by leave of the Court upon the showing of good cause. It is instructive to note that the issue herein is not really whether the lower Court was not bound by its scheduling order but whether it had the competence to proceed to determine the ancillary prayer No. 3 in the Motion for Joinder that is dependent on the outcome of prayer No. 1 for Joinder, after it had refused the said prayer No. 1, denying the Appellants the opportunity to be joined as co-Defendants to the suit. It is imperative to note that it is only when the order for joinder had been made in favour of the Applicants that the trial Court would rightly proceed to consider the issue of jurisdiction, then they would have been before the Court. The prayer for dismissal of the suit for want of jurisdiction ought not to have been joined together with the prayer for order for joinder nor should it have been considered at all by the trial Court after refusing the Appellants? principal claim for joinder as parties to the suit. The trial Court even took cognisance of submissions of the learned Senior Counsel for the Claimant before it to the effect that the prayer bordering on lack of jurisdiction is misconceived and premature, that it was improper for the Applicants who were then yet to be joined in the suit to ask for the suit to be struck out for lack jurisdiction, and that it is only when they succeed in joining as parties to the suit that they can bring any application pertaining to the substantive suit.
It is indeed an established principle of law “that where a party’s principal claim fails, the accessory claims that are appendages to it will fail too. This cardinal principle of law was, clearly, espoused by the Supreme Court in the cases of Fagunwa v. Adibi (supra) and Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) 312. The principle traces its paternity to the Latin maxim: Accessorium seguitur principale – an accessory thing goes with the principal to which it is incidental to. PER ORJI-ABADUA, J.C.A.
WHETHER OR NOT A PERSON WHO IS NOT A PARTY TO SUIT CAN BE PROCEEDED AGAINST
It is trite law that a person who is not a party to a suit cannot be proceeded against by virtue of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. It will amount to a breach of his fundamental right of fair hearing should that be done. The proceeding against him will be a nullity. It is well established that “a necessary party should be allowed to have his fate in his own hands. He should not be shut out to watch through the window. Judgment made with an order against a person who was not a party to a suit is to no avail. It cannot be allowed to stand. SeeUku v. Okumagba (supra). Also, any judgment made with an order against a necessary and desirable party behind its back will be to no avail. It cannot be allowed to stand. See Chief Abusi David Green v. Dr. E. T. Dublin Green (1987) 3 NWLR (Pt. 60) 480; Uku v. Okumagba (1974) 1 ALL NLR 475.” PER ORJI-ABADUA, J.C.A.
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): In the course of the proceeding in suit No. HME/68/2013 commenced by the 1st Respondent in this appeal against the 2nd and 3rd Respondents as the Defendants, before the High Court of Imo State in the Mbano/Etiti Judicial Division sitting at Etiti, and presided over by Agbadara, J., the Appellants, then Applicants, filed a Motion on Notice on the 28th May, 2015 as Parties seeking to be joined and prayed for the following reliefs:
1. ?An Order joining the Applicants as 4th and 5th Defendants in this suit, to defend it for themselves and as representing other members of Umualumaku/Umuahia Autonomous Community of Ehime Mbano Local Government Area of Imo State, except the Claimant, his family members and cohorts.
2. An Order deeming the Applicants? Memorandum of Conditional appearance, Statement of Defence, Witness Depositions and documents to rely upon as properly filed, the filing fees of same having been paid,
3. An Order dismissing this suit for lack of jurisdiction to entertain it.
?4. And for such further order(s) as the Honourable
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Court may deem fit to make in the circumstance.?
?
The application was hinged on four grounds and buttressed by the facts deposed to in an affidavit of 40 paragraphs and a further affidavit of three paragraphs deposed to by the 1st Appellant and 2nd Appellant respectively. The Plaintiff deposed to a counter-affidavit of 13 paragraphs that was filed on 12th June, 2015. The said Motion was argued on 29/2/2016 and was thereafter adjourned to 4/5/16 for Ruling. The Ruling was however, delivered on the 31st October, 2016 and the said Motion for Joinder was dismissed by the lower Court with N10, 000.00 costs in favour of the Claimant. In consequence thereof coupled with their displeasure with the said decision of the trial High Court, the Appellants as the Applicants thereat, lodged an appeal against the same which was founded on four grounds of appeal on the 14th November, 2016. The record of appeal was transmitted to this Court on 28/11/2016 and on the 11th October, 2017, the Appellants? Brief of Argument was filed after an order extending the time for them to file the same was granted on the 18th May, 2018 by this Court. Then on the 25th October,
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2018 the 1st Respondent filed his Brief of Argument. The 2nd to 4th Respondents did not file any Brief of Argument in this appeal. The Appellants in their Brief propounded two issues which read thus:
?1. Whether in refusing the application of the Appellants to join as parties to the suit in the lower Court, the trial Court not only misapplied the decision in Green vs. Green (1987) 3 NWLR Part 61 page 480 but also failed to apply the provisions of Section 5(1) of the Imo State Traditional Rulers and Autonomous Communities Law No. 6 (2006) (Grounds 1 and 2).
2. Whether the trial Court was not bound by its scheduling order which it declined to follow and thereby breached the Appellants? right to fair hearing? (Grounds 3 and 4).?
The 1st Respondent, in turn, projected a lone issue in the like manner:
?Whether the lower Court was right to consider the issues of jurisdiction by the Appellants in their application for joinder and to uphold jurisdiction to entertain the suit.?
In the Appellants? Brief of Argument, prepared by A. S. Kolawole, Esq., on behalf of Dr. Livy Uzoukwu, S.A.N., but adopted
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before this Court by Mike Onyekachi, Esq., it was stated that the Appellants sought to be joined suing in a representative capacity ?for themselves and on behalf of the other members of Umualumaku/Umuihim Autonomous Community of Ehime Mbano L. G. A of Imo State, except the 1st Respondent, his family members and cohorts.” He made reference to the reliefs sought by the 1st Respondent in his Amended Statement of Claim and the fact that the chieftaincy stool to which the 1st Defendant is laying claim before the trial Court, is the plank of the suit. He stated that by virtue of Section 5(1) of the Imo State Traditional Rulers Autonomous Communities Law No.6 2006, and the decision in Akuneziri vs. Okenwa (2000) 15 NWLR Part 691 page 526, traditional rulership or chieftaincy institution in any community belongs to that community and that under the Chieftaincy Law, the appointment or selection of the Chief (Eze) is a matter for the community, therefore, issues that border on the rightful person to be the traditional ruler of Umualumaku/Umuihim Autonomous Community directly affect the Appellants, and that makes the Appellants necessary parties for the purpose of
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determining questions or issues concerning the traditional rulership of their community. He referred to Akindele v Abiodun (2009) NWLR Part 1152 page 356 at 381-382 para G-C; Green vs. Green (supra);Yakubu v Governor of Kogi State (1995) 8 NWLR Part 414 page 386 and submitted that the trial Court not only misapplied the decision in Green vs. Green (supra) but failed to apply the provisions of Section 5(1) of the Imo State Traditional Ruler and Autonomous Communities Law No.6 2006 to which it was referred. He highlighted some facts which he claimed were uncontested before the trial Court and which showed that the said community and the Appellants are necessary parties that ought to have been joined. He contended that the trial Court did not consider the interests of the community the Appellants were representing but the personal interests of the Appellants. He submitted that had the trial Court appreciated the connotation of Section 5(1) of the Imo State Traditional Rulers Autonomous Communities Law No.6 2006, i.e. that chieftaincy institution belongs to the community, it should have considered the corporate interest of the community. He further submitted that in
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all actions for declaration, the law is that all persons to be affected should be made parties to the action and that the Court will not make the declaration sought in the absence of such persons. It was also argued that had the application been granted, it would have prevented multiplicity of actions over the same subject matter. He stressed that the Appellants are necessary parties in the absence of which the lower Court will not be able to resolve all the issues surrounding the traditional rulership of the Appellants? community effectually and completely and that the interests of Umualumaku/Umuihim Autonomous Community would be irreparably prejudiced if not joined in the matter before the lower Court. He urged the Court to resolve this issue against the Respondent.
?On issue No. 2, it was submitted that under the 2008 High Court of Imo State Civil Procedure Rules, a party seeking to be joined in a suit as a Defendant shall file his application along with his Statement of Defence. He explained that the Motion challenging the jurisdiction of the trial Court by the Appellants was part of their defence and it would only be due for hearing if the
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application for Joinder is heard and resolved in their favour. He contended it was inappropriate to refuse to join a party in a matter and then turned round to make findings bordering on jurisdiction against the same party who was not joined as it was contrary to the Scheduling Order of the trial Court made on 2/6/2015 which stated that the Motion for Joinder was adjourned to 5/10/15 for hearing and ruling while the Motion challenging the jurisdiction of the Court was fixed for hearing on 26/10/15 and 11/11/15 for ruling. It clearly signified that the Motion for jurisdiction is dependent on the success or otherwise of the Motion for Joinder. He argued that having refused the application for joinder, the lower Court was functus officio and should not have proceeded to determine the questions of jurisdiction raised by a non-party in breach of their right to fair hearing. It was submitted that the issue of jurisdiction raised by the Appellants is consequential upon the success of their Application for joinder and the prayer deeming their Memorandum of Conditional Appearance, Statement of Defence, Witness Depositions and Documents as duly filed. He further argued
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that having refused the first two reliefs in the application, the trial Court should not have proceeded to consider the issue of jurisdiction by persons who were not parties before it and that rendered the lower Court?s decision incompetent. The ruling on jurisdiction is incompetent as it was raised by a non-party. He submitted that it was therefore an exercise in futility to make an order against a non-party as such order is not binding on a non-party, and, that the ruling is perverse in that Courts have been cautioned to be wary of adjudicating on the rights of non-parties to an action. Learned Counsel then persuaded this Court to resolve issue No. 2 in favour of the Appellants and allow the appeal.
?The 1st Respondent argued that the trial Court was right in considering the issue of jurisdiction raised by the Appellants in their application for joinder. Learned Counsel for the 1st Respondent, Ogbonna Enekwa, Esq., referred to the prayers on lack of jurisdiction made by the Appellants in their said Motion and the fact that both sides joined issue on the fact of allegations of lack of jurisdiction and the copious addresses of Counsel on the
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issues and stated that the Appellants having raised the issues and issues having been joined on it, the lower Court was bound to resolve it. He referred to page 11 of the judgment contained at page 148 of the record and submitted that both the principles applied and the conclusion reached by the lower Court cannot be faulted. Ojomo Ors vs. Frozen Food Nig Ltd &Ors (2009) LPELR 8926 (CA); Ajuwa v SPDC (Nig) Ltd (2008) 10 NWLR Part 1094; Matari v Dangaladima (1993) 3 NWLR (Pt. 281) 266; Padawa & Ors v Jatau (2002) LPELR 5380 (CA); Oke v Oke (2006) 17 NWLR (Pt. 1008) 244; Petro Jessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd (1992) 5 NWLR (pt. 244) 675; Adegoke v Adibi & Anor (1992) 5 NWLR (Pt. 242) 410 and submitted that issue of jurisdiction can be raised at any stage and even suo moto by the Court. He submitted that the argument of Counsel that the trial Court ought not to have considered the issues of jurisdiction raised by him after it declined their application for joinder is strange, and also stating that the Appellants are approbating and reprobating at the same time and, that, the Courts frown at. Learned Counsel further argued that a
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scheduling direction for hearing of a matter or proceeding which is akin to adjourning a matter cannot qualify as a decision of the Court as to bind it, otherwise the decisions to adjourn would constitute a ground for appeal where a matter is not heard on any of the adjourned dates. He submitted that it is at the convenience of the Court as its business permits. He stated that no hearing was conducted as scheduled and the matter was adjourned to further dates at the exercise of discretion of the Court. Learned Counsel referred to Ntukidem v Oko (1986) NWLR Part45 page 909, and emphasised that there was no appeal on the exercise of the lower Court?s discretion in adjournment of the scheduled dates. On the point made that the issue of jurisdiction was raised by a non party, learned Counsel relied on Padawa vs. Jatau (2002) LPELR 5380 (CA) and contended that a party includes any party to a proceeding and that the decision of the Court was based on the application the Appellants brought as parties in which they challenged the jurisdiction of the lower Court, therefore, it was a misconception on the part of the Appellants that the decision of the lower Court
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assuming the jurisdiction to entertain the matter was made against non parties to the suit. He stressed that there is no decision of the lower Court touching on non party challenging the jurisdiction, and, then urged this Court to resolve the lone issue in favour of the 1st Respondent and dismiss the appeal.
In determining this appeal, I find it imperative to recapitulate at this juncture the reliefs sought by the 1st Respondent in the Court so as to ascertain whether they touch on the interests of the Appellants and whether they can be effectually and effectively be determined in the absence of the Appellants or without them making an input. The 1st Respondent claimed thus:
?1. A declaration that the Claimant is the person entitled to be recognized given Certificate of Recognition and Staff of Office as the Eze of Umualumaku/Umuihim Autonomous Community in Ehime Mbano L. G. A of Imo State, having been identified, selected and presented to the Ehime Local Government Council for recognition by the 1st Defendant in accordance with the tradition, native law and custom of the community.
2. A declaration that by virtue of hereditary nature
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of Ezeship Institution in Umualumaku/Umuihim in Ehime Mbano L. G. A., no other person is entitled to be identified, selected, presented or recognized as Eze of the said community save a person from NjokuIwundu lineage of the Claimants.
3. An order of the Court compelling the 1st Defendant to accord recognition and Staff of Office to the Claimant as the Eze of Umualumaku/Umuihim Autonomous Community having fulfilled all the criteria for such position, in accordance with their native law and custom.
The Appellants articulated the facts in support of their application at paragraphs 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26-38 of the affidavit in support of their Motion for Joinder, before the Court below. In response to those facts, the Claimant filed a counter-affidavit of 13 paragraphs sworn to by himself and denying the recognition of the late Chima John Paul Paulinus Okoronkwo as the Eze of Umualumaku/Umuihim Autonomous Community by the 1st Defendant. The Appellants filed a Further Affidavit of ten paragraphs deposed to by the 2nd Appellant reiterating their facts.
?The facts as copiously
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demonstrated in paragraphs 1, 2, 3, 6 of the Appellants? affidavit in support of their Motion for Joinder indicated the basis of their interests in the suit and how they evolved. They averred in paragraph 7 that the Eze-stool custom of the community is rotatory in nature and has always been rotatory in line with the custom the custom of sharing and rotation practiced in the community. It rotates principally between the two blocks of villages in the community in order of seniority between the villages in Umuihim-Oki block and villages in Umuihim-Owerri block. They glaringly stated that the Eze-stool custom of the community has never been hereditary. The bone of their contention is that the Claimant i.e. the 1st Respondent herein, is not the Eze-elect or Eze-nominee of their community and was never identified or selected or appointed by Umualumaku/Umuihim to be the Eze of the community. That there was never a time in the history of Umualumaku/Umuihim Autonomous Community the elders gathered to decide that the community?s Eze-stool should be hereditary or that the Eze of the community must be selected from the descendants of the Claimant?s
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family or Njoku Iwundu or any other particular family in the community.
?
The point is that if as averred, by the Appellants in paragraph 21 of their affidavit in support of the application, that the late Eze Okoronkwo who was initially sued as the 1st Defendant in the Claimant?s suit filed on the 21st October, 2013 until he died on the 4th October, 2014, was recognised by the then 2nd Defendant in the original Writ of Summons now the 1st Defendant in the Amended Writ of Summons after the demise of the original 1st Defendant, the late Eze Okoronkwo, as the Eze of the community on the 16th July, 2013 in keeping with the rotational nature of the Eze-stool of the community before the Claimant filed the suit on the 21st October, 2013, and which the 1st Respondent herein did not specifically debunk, it warrants that some members of the Umualumaku/Umuihim Autonomous Community he is claiming to be their Eze-elect in accordance with the custom and traditions of their Autonomous Community that recognised and operates hereditary form of Kingship, and who had been vehement in their opposition to his claims on the ground that the Eze-stool in the
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Umualumaku/Umuihim Autonomous Community is rotatory in nature and has always been rotatory in line with their custom and tradition of sharing and rotation practiced in the community, ought to be joined in the suit as parties to the suit.
The trial Court in labouring to decipher the necessity of joining the Appellants as the 4th and 5th Defendants they prayed for, reproduced the principles enunciated in the case of Green vs. Green (supra) and then observed in its ruling that the Applicants failed to depose to any personal interest in the subject matter of the suit, how the outcome will affect them, what injury they will suffer or how their absence will hinder a complete and effectual determination of the issues in the case and answered all the questions in the negative. The trial Court then stated that it was not shown how the Applicants? legal right may be directly affected. I must observe that the trial Court failed to take cognisance of or satisfy itself in its consideration with the term: ?the role of the community in the appointment or selection of Eze for the community?. I must have recourse to some Supreme Court decisions at
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this juncture. The Supreme Court, per Adekeye, J.S.C., in the case of Ogaga vs. Umukoro & Ors (2011) 18 NWLR Part 1279 page 924 elucidated that: ?The role of the community is to select and nominate a candidate to fill a stool within members of the ruling house for that chieftaincy, while the role of the Executive Council under Section 19 (1) of the Traditional Rulers and Chiefs Edict is to approve or set aside the section of a traditional ruler.” The Appellants? Counsel had contended that the trial Court also failed to consider the provisions of Section 5(1) of the Imo State Traditional Rulers and Autonomous Communities Law (No. 6) 2006, which distinctly stated that the Traditional Rulership or Chieftaincy Institution in any Autonomous Community belongs to that community.
In interpreting the provision of Section 10 of Imo State Chieftaincy Law, 1978 which provides as follows: “…every autonomous community whose Chief has been recognized by the Military Administrator shall, where available, forward to the Chief Executive of the Local Government of the area concerned, a copy of the Constitution of that community which shall contain -(a)
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the customary code of conduct to which the recognized Chief must subscribe; (b) a detailed statement of the customary law of the community regulating the selection, appointment or identification, suspension, deposition, rights and privileges of the Chief of the community” the Supreme Court per Mohammed, J.S.C., in Akuneziri vs. Okenwa (supra) cited by the Appellants? learned Counsel, then held that: ?It is therefore abundantly clear that it is the Constitution of the Autonomous Community which regulates the selection, appointment or identification, suspension, deposition, rights and privileges of the Chief of the Community. Chief Williams submitted, quite rightly, that under the Chieftaincy Law, the appointment or selection of the chief is a matter for the Community whilst recognition is a matter for the State Governor.?
?In the instant appeal, Section 5(1) of the Imo State Traditional Rulers and Autonomous Communities Law (No. 6) 2006, provides that each autonomous community shall identify, select, appoint and present its Eze to the Local Government Area in charge of the autonomous community. Then Section 7(1) of the said Law
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says that: ?Where the Eze of an Autonomous Community is presented to the Governor as provided under Sections 5 and 6 of this Law, the Governor may by an instrument (in accordance with the provisions of this Law) recognise such a person as the Eze of the Autonomous Community.? The combined effect of all these sections is that no Eze or Traditional Ruler of a Community shall be appointed or selected without effective participation of members of the community from which the Eze hailed. This pivotal role of a community was equally echoed by Kutigi, J.S.C., (as he then was) in Akuneziri vs. Okenwa (supra) when he said: ?It is of vital importance to note that under the Edict, the appointment or selection of a chief is a matter left entirely in the hands of the Community while recognition is a matter for the Governor.?
All these case laws depict nothing than that the case of the 1st Respondent herein i.e. the Claimant at the Court below cannot be effectively and effectually determined in the absence of the members of his Umualumaku/Umuihim Autonomous Community whom he alleged had identified, selected, appointed and presented him as the
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Eze-elect in accordance with the custom and traditions of their Autonomous Community that recognises and operates hereditary form of Kingship as regards the ancient stool of Igu Ehime and Ezediohanma of Umualumaku/Umuihim. It is therefore, my candid view that the Appellants are correct in their submission that the Court below not only misapplied the decision in Green vs. Green (supra) but failed to apply the provisions of Section 5(1) of the Imo State Traditional Rulers and Autonomous Communities Law (No. 6) 2006. Accordingly, issue No. 1 is resolved in favour of the Appellants.
?In tackling issue No. 2 which queries whether the trial Court was not bound by its scheduling order which it declined to follow and thereby breached the Appellants? right to fair hearing, it should be noted that the phrase scheduling order means the process of arranging or controlling the order of joining other parties to the suit. It is also a Court order designed to manage the flow of a case from the date it is entered through the beginning of the trial. The schedule order is said to be the roadmap that governs the course of a case and that a schedule, once ordered,
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shall not be modified except by leave of the Court upon the showing of good cause. It is instructive to note that the issue herein is not really whether the lower Court was not bound by its scheduling order but whether it had the competence to proceed to determine the ancillary prayer No. 3 in the Motion for Joinder that is dependent on the outcome of prayer No. 1 for Joinder, after it had refused the said prayer No. 1, denying the Appellants the opportunity to be joined as co-Defendants to the suit. It is imperative to note that it is only when the order for joinder had been made in favour of the Applicants that the trial Court would rightly proceed to consider the issue of jurisdiction, then they would have been before the Court. The prayer for dismissal of the suit for want of jurisdiction ought not to have been joined together with the prayer for order for joinder nor should it have been considered at all by the trial Court after refusing the Appellants? principal claim for joinder as parties to the suit. The trial Court even took cognisance of submissions of the learned Senior Counsel for the Claimant before it to the effect that the prayer
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bordering on lack of jurisdiction is misconceived and premature, that it was improper for the Applicants who were then yet to be joined in the suit to ask for the suit to be struck out for lack jurisdiction, and that it is only when they succeed in joining as parties to the suit that they can bring any application pertaining to the substantive suit.
It is indeed an established principle of law “that where a party’s principal claim fails, the accessory claims that are appendages to it will fail too. This cardinal principle of law was, clearly, espoused by the Supreme Court in the cases of Fagunwa v. Adibi (supra) and Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) 312. The principle traces its paternity to the Latin maxim: Accessorium seguitur principale – an accessory thing goes with the principal to which it is incidental to.?
It is clear that the fundamental prayer by the Appellants was their prayer for joinder as parties. Where they have not been joined as parties, no subsequent or ancillary prayers sought by them are grantable by any Court. It follows that where the lower Court refused to join them as parties to the suit it ought to have struck
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out the rest reliefs contained in that Motion for Joinder. It is trite law that a person who is not a party to a suit cannot be proceeded against by virtue of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. It will amount to a breach of his fundamental right of fair hearing should that be done. The proceeding against him will be a nullity. It is well established that “a necessary party should be allowed to have his fate in his own hands. He should not be shut out to watch through the window. Judgment made with an order against a person who was not a party to a suit is to no avail. It cannot be allowed to stand. SeeUku v. Okumagba (supra). Also, any judgment made with an order against a necessary and desirable party behind its back will be to no avail. It cannot be allowed to stand. See Chief Abusi David Green v. Dr. E. T. Dublin Green (1987) 3 NWLR (Pt. 60) 480; Uku v. Okumagba (1974) 1 ALL NLR 475.”
Further, a Court of law cannot decide any law in favour of persons who are not parties before it. See PDP vs. Ekeagbara & Ors (2016) CA/A/406A/2016 where it was held that a person who is not a party to a suit nor represented
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in the suit cannot be vested with interest in the outcome of that suit. A Court of law cannot decide any matter in favour of person(s) who are not parties before it. The case of Nnaemeka vs. Chukwuogor (Nig) Ltd (2007) 5 NWLR Part 1026 page 60 at 78, per Ngwuta, J.C.A (as he then was), was referred to and applied.
It is clear that the orders made against the Appellants who are necessary and interested parties and who ought to be joined and heard and were not joined in the suit, by the trial Court and the entirety of the proceedings in respect of the issue on jurisdiction which was decided after the trial Court had refused their application for joinder would come to naught as the Appellants had been denied of their right to fair hearing.
In the end, I find merit in this appeal and hereby allow the same. Consequently, the ruling delivered by the lower Court on the 31st October, dismissing the Motion filed by the Appellants as parties seeking to be joined is hereby set aside. In its place, this Court by virtue of the powers conferred upon it by the Court of Appeal Act, 2004, hereby order that the Appellants be joined as the 4th and 5th Defendants in the
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suit. They are hereby joined as the same. Prayer No. 3 on the issue of jurisdiction is struck for being premature. I make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading before now, the lead judgment just delivered by my Brother THERESA NGOLIKA ORJI-ABADUA, JCA.
I agree with her reasoning and conclusion.
I allow the appeal. The decision of the Court below dismissing the motion filed by the Appellants as parties seeking to be joined is set aside.
I strike out prayer No. 3.
No order as to costs.
?IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree
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Appearances:
Mike Onyekachi, Esq.For Appellant(s)
Ogbonna Enekwa, Esq. with him, Rev. P.O. Ori, Esq. for 1st Respondent.
No legal representations for the 2nd to 4th RespondentsFor Respondent(s)
Appearances
Mike Onyekachi, Esq.For Appellant
AND
Ogbonna Enekwa, Esq. with him, Rev. P.O. Ori, Esq. for 1st Respondent.
No legal representations for the 2nd to 4th RespondentsFor Respondent
