PRINCE JOEL OLOWODE AMOS & ORS v. OBA ISRAEL ADEWALE OKOYA & ORS
(2014)LCN/7006(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of March, 2014
CA/L/670/2011
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. PRINCE JOEL OLOWODE AMOS
2. PRINCE BENJAMIN ALE
(Head of family Idi Aro Ruling House)
3. CHIEF ELKANNAH ASADE
(Ajagunna of Ibereko)
4. CHIEF YAYA SIKIRU
(Otunba of Ibereko)
5. CHIEF EMMANUEL TAIWO FALOLA
(Lisa of Ibereko)
6. CHIEF OMOBOJA OGABI
(Iyalode of Ibereko)
(For themselves and on behalf of Ibereko Kingmakers) Appellant(s)
AND
1. OBA ISRAEL ADEWALE OKOYA
2. SPEAKER, LAGOS STATE HOUSE OF ASSEMBLY
3. LAGOS STATE HOUSE OF ASSEMBLY Respondent(s)
RATIO
THE DUTY OF THE COURT IN DETERMINING WHETHER TO JOIN A PARTY TO A SUIT OR NOT
The law is elementary, that in determining whether to join a party to a suit or not, the Court ought to peruse the pleadings or the affidavit of the parties to a suit – CHIEF OF ARMY STAFF v. LAWAL (2012) 10 NWLR (PART 1307) page 62 @ 70 paragraphs e-f. In the above case, the terms “proper parties” “Desirable parties” and “Necessary parties” were defined.
“Proper parties” are those who, (though not actually interested in the claim) are joined as parties for some good reasons.
“Desirable parts” are those who have an interest in a suit or may be affected by the result thereof.
“Necessary parties” are those who not only have interest in the matter, but also who in their absence, the proceedings could not be fairly and effectually dealt with GREEN V. GREEN (1997) 3 NWLR (PART 61) 480. PER PEMU, J.C.A.
DISTINCTION BETWEEN THE DESIRABILITY OF MAKING A PERSON A PARTY AND THE NECESSITY OF MAKING HIM ONE
Decidedly, a distinction must be drawn between the desirability of making a person a party, and the necessity of making him one.
In SETTLEMENT CORPORATION V. HOSHSCHILD NO 2 (1959) 1 WLR 1664, it was held that joining a person as a party to proceedings did not arise, merely because the relief sought in the cause or matter might affect someone who was not a party, in respect of his rights at Common law or Equity.
In PEENOK V. HOTEL PRESIDENTIAL (1983) 4 NCLR. 122 Eso JSC and Obaseki JSC drew the necessary distinction between what it is desirable to do and what it is necessary to do and came to the conclusion that although it was desirable to join the Rivers State Government whose Edicts Nos. 15 and 17 were under attack, it was not necessary to join them before the Court could decide on the claim of the parties before it. PER PEMU, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE DECISION OF A TRIAL COURT TO JOIN A PARTY TO A SUIT
An Appellate Court will interfere and overturn the decision of a trial Court joining a party to a suit if the trial Court proceeded on wrong principles of law, or if he failed to raise the necessary inference upon the facts before him – IWEKA v. A-G FEDERATTON (1996) 4 NWLR 362 @ 374 Paragraphs b-c. PER PEMU, J.C.A.
WHETHER OR NOT A PERSON SHALL BE JOINED AS A CO-DEFENDANT AGAINST WHOM THERE IS NO CLAIM BY THE PLAINTIFF
A person shall not be joined as a co-Defendant against whom there is no claim by the Plaintiff – EDOKPOLO & CO LTD VS. SAM-EDO WIRE LTD 1984 NSCC (VOL.15) 553; OLUJITAN V. OSHATOBA (1992) 5 NWLR (PT.241) 326; F.B.N. (NIG) PLC V. AKPARABONG COMMUNITY BANK LTD (2006) ALL FWLR (PT.319) 927 @ 968 – 969 paragraph g – a. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering The Leading Judgment): This appeal emanated from the Judgment delivered on the 22nd of April 2009 by Hon. Justice Adebayo of the High Court of Lagos State, Badagry Division in Suit NO.BD/76/07.
In it, the trial Court dismissed the Appellants’ application for joinder dated 7th July 2008 and went on to hold that the Appellants were not necessary parties whose presence were important for the determination of the suit.
FACTS
The 1st Respondent (as one of the Claimants in the Lower Court) had in paragraph 32 of the Statement of Claim dated 31st of October 2007, claimed against the 2nd and 3rd Appellants (Defendants in the Lower Court) jointly and severally the following:-
(i) A declaration that the pronouncement of the 1st and 2nd Defendants to the effect that the Claimant should maintain the STATUS QUO that exist before 27th May, 2007 which pronouncement was made on Monday 29th October, 2007 is wrongful, illegal, unconstitutional, null and void ad of no effect whatsoever.
(ii) A declaration that the 1st and 2nd Defendants have no power whatsoever under the Constitution of the Federal Republic of Nigeria 1999 to interfere in any manner whatsoever into the status of the Claimant.
(iii) A declaration that the pronouncement of the defendant which was made on Monday 29th of October, 2007 is contemptuous of the on-going proceedings in Suit No.BD/36/2007: PRINCE JOEL OLOWODE AMOS & ORS VS. ADEWALE OKOYA & ORS the existence of which was brought to the knowledge of the defendants.
(iv) A perpetual order of Court ANNULLING the pronouncements of the defendants made on Monday 29th of October, 2007 directing the Claimant to maintain the Status Quo that exist (as regards his present status of OBA ONIBEREKO OF IBEREKO) before 27th May, 2007.
(v) A perpetual order of Court ANNULLING the pronouncements and or directives of the defendants made on Monday, 29th October, 2007 recommending the removal from office of the 2nd Claimant.
(vi) A perpetual order of Court ANNULLING the entire proceedings of the defendants held on Monday 29th of October, 2007 in so far as it concerns or affect the Claimants.
(vii) An order of perpetual injunction restraining the defendants whether by themselves, their servants, agents and/or privies from debating, deliberating interfering or dealing in any manner with the approval appointment and installation of the 1st claimant which matter is subject of adjudication in Suit No.BD/36/2007 PRINCE JOEL OLOWODE AMOS & ORS VS. ADEWALE OKOYA & ORS.
(viii) Such further or other orders as this Honourable Court may deem fit to make in the circumstance.
Pages 8-9 of the Record of Appeal.
The Claimants at the Lower Court were:
(1) Oba Israel Adewale Okoya
(2) Abraham Olatunji Ogabi (as Claimant)
(3) Speaker, Lagos State House of Assembly and
(4) Lagos state House of Assembly (as Defendant)
Oba David Beyioku, was Oba of Ibereko. After his demise in 2006, in accordance with the Chieftaincy declaration and Section 17 of the Obas and Chief Law Cap 02 of Lagos State 2003, the Local Council Development Area issued a Public Notice calling on Idi Aro Ruling House, which is the next ruling house to produce a candidate for the vacant stool.
The machinery was put in motion for candidates to be selected, and ultimately the 1st Appellant was selected as Oba elect.
But strangely enough, this selection was overturned and the State Security Service recommended the 1st Respondent to the permanent Secretary Ministry of Local Government and Chieftaincy Matters who advised the Government of Lagos State to install the nominees as the Oba of Ibereko.
Consequent upon this, about 26 concerned indigenes of Ibereko Community which included, the members of Idi-Aro Ruling House filed a petition to the Lagos state House of Assembly (3rd Respondent) on the wrongful imposition and installation of the 1st Respondent as the Oba of Ibereko Community.
This necessitated the institution of the suit, the subject matter of this Appeal by the 1st Defendant – Oba Israel Adewale Okoya.
It is noteworthy that the 1st Respondent was recommended as the candidate to fill the vacant stool of the Oba of Ibereko and a report was submitted to the Lagos State Government by the people it elected to discharge the functions of the Kingmakers to the stool of Oba of Ibereko. This is because the Lagos state Government was not happy with the activities of the Kingmakers.
The Report was accepted by the Lagos State Government and the 1st Respondent was installed as the Oba of Ibereko. He was given staff of office and his installation as Oba of Ibereko was gazette by the Lagos State Government in Gazette No 45 Vol.40 dated 8th June 2007 – pages 364-369 of the Record of Appeal.
The 1st Respondent instituted the action, the subject matter of this Appeal against the 2nd and 3rd Respondents and filed an application for Interim order dated 3rd October 2007 suspending the pronouncements of the 2nd and 3rd Respondents, and directing that the Claimant maintain the status quo that exist. The Honourabte Court on the 5th of November 2007 granted the application – pages 417-418 of the Record of Appeal.
The application dated 3rd July 2008, the Appellants sought to join as parties (Defendants) in the action – pages 242-250 of the Record of Appeal. The 1st Respondent filed a counter affidavit to the application. It is dated 4th July 2008 – pages 251-257 of the Record of Appeal.
On the 23rd of April 2009, the Lower Court dismissed the application.
THE PRELIMINARY OBJECTION
It is pertinent to note that the 1st Respondent had filed a notice of Preliminary Objection dated 23rd April 2012. The Grounds upon which the notice of Preliminary objection is predicated are as follows:
(1) Section 243(i) of the Constitution of the Federal Republic of Nigeria 1999 states as follows:
“Any right of appeal to the Court of Appeal from the decisions of the Federal High Court, National Industrial Court or a High Court conferred by this Constitution shall be exercisable in the case of civil proceedings of the instance of a party thereto, or with the leave of the Federal High Court, National Industrial Court or High Court or the Court of Appeal at the instance of any other person having an interest in the matter.
(2) The Notice of Appeal dated 7th day of May 2009 is incompetent because the aforesaid Constitutional provisions was not complied with by the Appellants hence this Court lacks jurisdiction to hear and determine an incompetent appeal.
(3) The Appellants lacks locus standi in this Appeal having failed to comply with the fundamental rules of appeal aforesaid.
(4) The Appellants were not parties to the Suit No BD/76/97 at the Lower Court and therefore cannot appeal as of right but with leave of the Court and this was not obtained.
The 1st Respondent argues and indeed submits that the Appellants’ appeals against the decision of Adebajo J. of Lagos High Court, Badagry Division delivered on the 23rd of April 2009 is not as of right, as the Appellants ought to have obtained the leave of Court before filing the Notice of Appeal dated 7th May 2oog, as provided by Section 243(1) of the 1999 Constitution.
Submits that Appeals, being creation of statues, any failure to comply with the statutory requirements prescribed by the relevant laws under which may be competent and proper before the Court will deprive such appellate court of Jurisdiction to adjudicate on the appeal – TIZA & ANOR vs BEGHA (2005) 22 NSCQR 642 @ 655; AUTO IMPORT/EXPORT VS. ADEBAYO (2003) FWLR (PT.140) 1686; KUDIABOR V. KUDANO 6 WACA 14; UKPONG & ANOR VS. COMMISSIONER FOR FINANCE & ANOR (2006) 28 NSCQR 508 @ 529.
He urges court to strike out the Appeal as being incompetent. The 1st Respondent submits that where this Honourable Court holds that the appeal is competent, it submits a sole issue for determination and that is
“Whether the Appellants are necessary parties to the effective determination of this suit”
Replying to the Preliminary Objection, the Appellants submit that it is misconceived. This is because the “proceedings” which gave rise to this appeal is not the substantive suit but the application for joinder brought and initiated by the Appellants. That the decision of the trial Court which dismissed the Appellants’ application for joinder is a final decision, because it conclusively determined the rights of the
Respondents.
They argue that, upon hearing and dismissing the Appellants’ application for joinder dated 3rd July 2008, the trial Court conclusively determined the status of the Appellants in relation to the suit before it. That the decision on the Applicants’ application for joinder ultimately precluded and foreclosed the Appellants from filing any process or making any further appearance before the trial Court. They submits that being a final decision, it is of right to appeal and no leave is required – IFEDIORA v. UMEH (1988) 2 NWLR (pt.74).
They submit that the decision at the Lower Court completely terminated the Appellants’ participation in the proceedings. The Appellants were parties to the hearing of the application for joinder and the decision dismissing the Appellants’ application for joinder directly affected the Appellants, and therefore they do not need any leave to appeal as an interested party to the decision.
They submit that Section 243 of the 1999 Constitution deals with a party who ab initio was not a party to the proceedings given rise to the decision appealed from – NIG. BOTTLING COMPANY PLC V. OSOFISAN (2000) FWLR (PART 7) 1153.
That section 243 does not apply to this appeal because the Appellants were parties to the hearing of the application for joinder at the trial Court and the decision on that application gave rise to this appeal. This appeal, they submit is as of right pursuant to Section 241(1) (a) of the Constitution of the Federal Republic of Nigeria 1999.
They argue that the decision of the trial Court was a final decision as it irrevocably disqualified the Appellants from the proceedings before the trial Court. That the Appellants cannot have any recourse to the trial Court again in respect of that substantive suit, except their appeal succeeds.
Submits that this appeal is not against the Judgment in the substantive suit.
I shall consider the merits in the Notice of Preliminary Objection before I go on to consider the main appeal if the need arises. In other words, if there is merit in the Notice of Preliminary Objection, that disposes off the main appeal but if there is no merit in it, then the consideration of the issues in the main appeal becomes incumbent on this Court.
It is the 1st Respondent who filed a notice of Preliminary Objection dated 23rd April 2012.
The Court before which the action, the subject matter of this appeal was instituted by Writ of Summons on the 31st of October 2007 was the High Court of Justice Lagos State – in the Badagry Judicial Division.
The parties at the Lower Court were OBA ISRAEL ADEWALE OKOYA and ABRAHAM OLATUNJI OGABI as Claimants and SPEAKER LAGOS STATE HOUSE OF ASSEMBLY and LAGOS STATE HOUSE OF ASSEMBLY as Defendants – page 5 of the Record of Appeal.
Pursuant to a motion on notice filed on the 7th of July 2008 the 1st-6th parties seeking to be joined sought an order of Court joining them as Defendants to the action. They are:
(1) PRINCE JOEL OLOWODE AMOS (Oba-Elect of Ibereko)
(2) PRINCE BENJAMIN ALE (Head of Family Idi-Aro Ruling House)
(3) CHIEF ELKANNAH ASADE (Ajagunna of Ibereko)
(4) CHIEF YAYA SIKIRU (Otunba of Ibereko)
(5) CHIEF EMMANUEL TAIWO FALOLA (Lisa of Ibereko)
(6) CHIEF OMOBOJA OGABI (Iyalode of Ibereko)
(For themselves and on behalf of Ibereko Kingmakers) – pages 242 – 250 of the Record of Appeal)
By motion on notice filed on the 21st of November 2008, the 1st Claimant Applicant sought an order of Court deleting the names of the 2nd Claimant and amendment of the processes to reflect same. Name of the 2nd Claimant was consequently struck out – pages 171-175 of the Record of Appeal.
Vide a considered Ruling, the learned trial Judge, Hon. Justice A. Adebajo, oh the 23rd of April 2009, refused the application thereby dismissing same.
The Preliminary Objector had argued that this decision constitutes a final Judgment in respect of the Applicants. This is because by the refusal to join the 1st-6th parties seeking to join Appellants, who were not parties to Suit No BD/76/07, could not appeal as of right but must seek leave and obtain same before the filing of this appeal.
They submit that failure of the Appellants to obtain the statutory leave as enshrined in Section 243(1) of the Constitution of the Federal Republic of Nigeria 1999, renders this appeal incompetent, thereby divesting this Honourable Court of the Jurisdiction to entertain same.
It is pertinent to note that none of the Appellants was a party to the original suit. They had, before the hearing of the substantive suit, sought an order of Court to be part of the suit. This was a purely independent from the proceedings in the main suit of which they were not parties.
Therefore any order made in this interlocutory application for joinder becomes a final one as it affects the Appellants/Applicants whether allowed or refused.
The order at the Lower Court refusing the Appellants/Applicants to join the suit conclusively determines the rights of the Appellants/Applicants at the stage and of which the learned trial Judge becomes functus officio. It can only be reversed on appeal – UDE V. AGU (1961) 1 ALL NLR 65; IFEDIORA v. UMEH (1988) 2 NWLR Pt.74.
The result of the Lower Court’s refusal to join the Appellants/Applicants is that, they were foreclosed from filing any process or making any appearance in respect of the suit. It becomes a final decision vis-a vis the Appellants/Applicants.
Being a final decision, leave of court is not required constitutionally – section 241(1) (a) of the 1999 constitution.
The appeal before this Court is not in respect of the substantive suit where existing parties obtain, if it were in respect of the final decision of the substantive suit, then leave would have been required.
A clear and concise interpretation of the construction of Section 243(1) of the Constitution of the Federal Republic of Nigeria 1999, postulates in my view a situation whereby a party was not ab initio a party to the proceedings given rise to the decision appealed from. It provides thus
Section 243(1) “Any right of appeal to the court of Appeal from the decisions of the Federal High Court, National Industrial Court or a High Court conferred by this Constitution shall be exercisable in the case of Civil proceedings of the instance of a party thereto, or with the leave of the Federal High Court, National Industrial Court or High Court or the Court of Appeal at the instance of any other person having an interest in the matter (underlined for emphasis.
The Appellants had been adjudged not parties at the Lower Court. That is a final decision. It was not predicated on any condition. Leave of Court is therefore not required to appeal the decision of the Lower Court. They had to appeal as of right which they have done.
On this premise, I am of the view that the Preliminary Objection is misconceived and same is hereby overruled accordingly.
NOW TO THE MAIN APPEAL.
The sole issue for determination proffered by the Appellants is
“WHETHER THE APPELLANTS ARE PARTIES TO THE EFFECTUAL DETERMINATION OF THE SUIT AS THEIR INTEREST WOULD BE ADVERSELY AND SUBSTANTIALLY AFFECT OR UNDERMINED BY THE OUTCOME OF THE SUIT.”
It is the Appellants contention that the law is settled that the principles of joinder in our legal system postulates that it is anybody whose presence is crucial and fundamental to the resolution of a case before a Court that should be made a party to the suit. That person is joined for the effectual and complete settlement of the questions in the suit, so that he may be bound by the result of the action. – GREENE V. GREENE (2001) FWLR (Pt.76) 795, 894; OKUKUJE v. AKWIDO (2001) FWLR (PT.39) 1487 AT 1525; IWEKA V. A-G FEDERATION (1994) 4 NWLR (Pt.442) 362; UBA PLC V. AKPARABONG COMMUNITY BANK LTD & ANR (2006) ALL FWLR (PT.319) 927.
They submit that this principle is informed by the need to afford fair hearing to the parties, whose rights would be affected by the decision of a Court. A fortiori, a Court is incompetent to proceed to entertain proceedings, in a matter where a necessary party is absent. Citing OKAFOR V. UCHEBOR (2003) FWLR (PT.136) 876; 886; ALHAJI BISIMILLAHI V. YAGBA-EAST LOCAL GOVERNMENT & ORS (2003) FWLR (PT.141) 1939 @ 1858, they submit that failure to join a necessary party in a proceeding negates the provision of Section 36 (1) (2) of the 1999 Constitution.
They query if the Appellants’ interest will be affected if any of the reliefs claimed by the Claimant is granted by the trial Court – MOBIL PRODUCING NIG. UNLTD V. LASEPA & ORS (2003) FWLR (Pt.137) 1029.
They again query – what are the interest of the Appellants in the suit which makes their presence necessary?
They submit that the dispute that gave rise to this action revolves round the 1st Appellant, and the 3rd – 6th Appellants. This is because the 1st Appellant was the candidate nominated by Idi-Aro Ruling House
which is the ruling house next entitled to present a candidate to the stool of Oba of lbereko following the death of the immediate past Oba. The 3rd – 6th Appellants are the legitimate Kingmakers who selected the 1st Appellant, in exercise of their duties as Kingmakers, as the candidate suitable to ascend to the stool of Oba of Ibereko.
They submit that the resolution of the 3rd Respondent i.e. Lagos State House of Assembly made on the 29th of October 2007 affects the right of the 1st Appellant – Prince Joel Olowode Amos to the Obaship stool of Ibereko.
They submit that the legislative inquiry conducted by the 3rd Respondent revolved around the action of the 2nd – 6th Appellants qua Kingmakers and the participation of the 1st Appellant and the Claimant qua contestants. Therefore, they submit, the role of the Kingmakers was pivotal to the resolution passed by the House of Assembly. They submit that the resolution passed by the House of Assembly was anchored on the illegal displacement or assumption of the customary duties of the Kingmakers by the cronies of the 1st Respondent. This is borne out by the bare facts that the House denounced the action of the 1st Respondent and upheld the exclusive customary powers of the Kingmakers to select candidate to fill the Obaship stool of Ibereko.
They submit that it is incumbent for the Appellants to be heard on the validity or legality or otherwise of the Resolution because this resolution was made after a thorough consideration of the actions of the Kingmakers vis-a-vis the participation of the 1st Appellant and the 1st Respondent as contestants.
If this is to be annulled, the Appellants have a right to be heard, they submit.
They submit that the Appellants’ rights are substantially affected, and to shut them out from defending their interest in the resolution would not be fair.
They submit that the Legislative Hansard of the Lagos State House of Assembly of 29th October 2007, and which has arisen out of an inquiry into the actions of the Appellants vis-a-vis that of the Respondents as it affects the stool of Ibereko, and which is sought to be annulled in the substantive suit, is one that attracts all affected persons, including the Appellants, who would be afforded an opportunity to join in the action, and defend the validity of the proceedings which gave rise to the resolution of the House. This is necessary and would be fair to all affected persons, they submit.
They submit that the Appellants were the complaining voices at the inquiry that gave rise to the resolution and should also participate in any action challenging its validity.
They submit that the complaint which gave rise to the resolution centred on the illegal disbandment of the Kingmakers by the Lagos State Government and the subsequent imposition and installation of the 1st Respondent as Oba of Ibereko, instead of the 1st Appellant.
Therefore, they submit, the issues which the 1st Respondent is seeking for its determination in the substantive suit, cannot be effectively and completely determined without joining the Appellants. This is because, the resolution of the House affects their interests substantially in the Obaship stool.
They submit that it would be grossly prejudicial to the interest of the Appellants and a denial of fair hearing, for the trial Court to proceed to determine the suit and nullify the resolution without joining the Appellants. Citing NATIONAL ELECTORAL COMMISSIONER V. IZUOGU & ORS (1993) 2 NWLR (pt.275) 270, which held that
“It would be iniquitous to determine a matter against a person without at least an attempt to hear him. It is the duty of the plaintiff and the Court can suo motu raise the point that the plaintiff or Applicant must bring to court ail persons who may be affected by the decision in a case so as to have the matter in dispute resolved once and for all.”
They submit that at this stage, it is not for the Court to determine the legality of the resolution, as this Court is only invited to decide on whether, in view of the involvement of the Appellants in the dispute and indeed the proceedings that gave rise to the resolution of the House, the Appellants should not be heard on the validity of the resolution of the House.
That the resolution of the 3rd Respondent is an offshoot of the chieftaincy dispute and it is only fair that all persons whose interests are affected should be given an opportunity to defend the action.
They submit that the 1st Respondent’s claim in the action before the trial Court are founded on falsehood and misrepresentation and it is only fair for the Appellants, who represent both the interest of the Idi-Aro Ruling House and the interest of the Kingmakers to be joined to this proceeding in order to puncture the false castle upon which the 1st Respondent’s case was built. That a multiplication of the resolution will foist a fart accompli on the entire proceedings in BD/36/2007 and the Appellants would be bound by the outcome of such decision, even though they were not afforded an opportunity to be heard.
The 1st Respondent’s sole issue for determination is an adoption of the Appellants sole issue for determination.
The 1st Respondent submits that the relevant questions to be determined on whether a person should be paid as Defendant are:
(a) Is it possible for the Court to adjudicate upon the cause of action set up by the Plaintiff unless the person is added as a Defendant.
(b) Is the person someone who ought to have been joined as a Defendant in the first instance, and
(c) Alternatively, is the person someone who presence before the Court as Defendant will be necessary in order to settle all the questions involved in the cause.
He submits that these questions must be answered in the affirmative for a Justice to be. Citing UKU v. OKUMAGBA (1974) ALL NLR 475, he submits that it is improper to join as a co-Defendants persons against whom the Plaintiff has no cause of action and made no claim, and whose interest is adverse to that of the other Defendants.
The 1st Respondent urges this Hon. Court to look at the Writ of Summons and statement of claim dated 31st October 2007.
He submits that the reliefs claimed by the 1st Respondent against the 2nd and 3rd Respondents have to do with the actions taken by the 2nd and 3rd Respondents in respect of the status of the 1st Respondent after the commencement of Suit No.BD/36/07 between Prince Joel Olowode Amos and Ors. Vs. Adewale Okoya & Ors.
That from the Reliefs in the Writ of Summons and Statement of Claim of the 1st Respondent and the unsigned petition upon which the 2nd and 3rd Respondents acted during the pendency of suit No.BD/36/2007, it is evidence that the question to be settled in the action did not require the presence of the Appellants of the Appellants before it can be effectively and effectually resolved.
That the Apex Court had in a plethora of cases decided that Courts should endeavour to deal with the matter in controversy as it relates to the rights and interests of the parties actually before it. The 1st Respondent submits that he has no complaint against the parties seeking to be joined as Defendants in the action and they cannot be faced on him to prosecute his claim against.
He urges Court to consider the affidavit in support of the application for joinder or dated 3rd July 2008, to see if the issue in question in this Suit can be properly determined in the absence of the Appellants.
That a cursory look at the affidavit in support of the motion for joinder shows that the Appellants want to use their presence as parties in this instant suit to justify the contemptuous act of the 2nd and 3rd Respondents.
None of the six Appellants as parties/Applicants seeking to be joined were parties in the original suit. However they prosecute this appeal for themselves and on behalf of Ibereko Kingmakers.
The affidavit in support of the motion for joinder can be gleaned from Pages 244 – 246 of the Record of Appeal.
From records, it seems to me that the suit at the Lower Court, the subject matter of this appeal, is inter alia, one for a declaration that the pronouncement of the 1st and 2nd Defendants (2nd and 3rd Respondents in the present appeal) to the effect that the Claimant (1st Respondent in the present appeal) should maintain the status quo that exist before 27th May 2007 which pronouncement was made on Monday 20th October 2007 is wrongful, illegal, unconstitutional, null and void and of no effect whatsoever. Also for a declaration that the 1st and 2nd Defendants (2nd and 3rd Respondents in the present appeal) have no power whatsoever under the Constitution of the Federal Republic of Nigeria 1999 to interfere in any manner whatsoever into the status of the Claimant.
From the above, it is apparent that the grouse which existed was between the 1st Respondent on one part and the 2nd and 3rd Respondents on the other part. The 1st Respondent was the 1st Claimant at the Lower Court, while the Defendants at the Lower Court are the 2nd and 3rd Respondents, in the present appeal. Perhaps paragraphs 5, 6, 7, 8, 9 and 10 of the statement of claim are apt.
Paragraph 5: “On the 25th of October 2006, the Olorunda Local Government Area Council issued a Public Notice declaring the Stool of Oba of Ibereko Town vacant and called on Idi Aro Ruling House, whose turn it is to present a candidate.”
Paragraph 6: “The Kingmakers process was annulled by the State Government, which empanelled another Committed to loom into the matter.
Paragraph 7: “The panel referred to in paragraph 6 above was empanelled by Ministry of Chieftaincy and Boundary matter by Letter dated 26th January 2007”
Paragraph 8: “The new Panel consist of His Royal Majesty Oba M. A. Olaleye, Onilogbo of Ilogbo Eremi (Chairman); Chief Joel Bolaji Falola (Baale of Aradagun member); Chief Edward Adesola (Baale of Ilado Member); Chief Muritala Okunade (Baale of Oko Afo Member) and Chief Peter A. Edun (Baale of Moba Member).
Paragraph 9: “The panel came out with a verdict that the 1st Claimant is the most suitable candidate for the office the Claimant shall rely on letter Reference No. OLGAS 63.5.41 T/79 dated 15th May 2007.
Paragraph 10: “On the 27th day of May 2007 the Government of Lagos State acting through the then Governor His Excellency Asiwaju Bola Ahmed Tinubu carried out the official installation and presentation of the instrument of Appointment to the 1st Claimant as the Oba of Ibereko Town in the Olorunda Local Council Development Area of Lagos State”.
Noteworthy is that none of the members of the New Panel mentioned in paragraph “8” is one of the Appellants in this Appeal.
Paragraphs 18 and 19 of the Statement of Claim an apt. I shall reproduce some verbatim
Paragraph 18 “After the 1st Claimants’ installation some disgruntled elements of Ibereko started to forment trouble, threatening his life and directed some segments of the Community to exhibit disloyalty and disrespect to him in all manners”
Paragraph 19 “Some faceless elements that tagged themselves “Concerned Indigenes of Ibereko” forwarded an unsigned “Petition” dated 26th June 2007 to the Lagos State House of Assembly (i.e. the
2nd Defendant) complaining about the installation of the 1st Claimant.”
Pages 5-7 of the Record of Appeal
The so called “concerned Indigenes of Ibereko” were not named. There is nothing to show that the Appellants were one of them.
In Paragraph 26 of the Statement of Claim it says:
“The Defendants constituted the House of Assembly on Monday 29th of October 2007 extensively debated the issue of the 1st Claimant’s installation in his absence and gave a directive that the Status Quo that existed before 27th May 2007 (when he was installed] should prevail.”
Now, where does the Appellants in the present appeal feature in this whole saga?
The law is elementary, that in determining whether to join a party to a suit or not, the Court ought to peruse the pleadings or the affidavit of the parties to a suit – CHIEF OF ARMY STAFF v. LAWAL (2012) 10 NWLR (PART 1307) page 62 @ 70 paragraphs e-f.
In the above case, the terms “proper parties” “Desirable parties” and “Necessary parties” were defined.
“Proper parties” are those who, (though not actually interested in the claim) are joined as parties for some good reasons.
“Desirable parts” are those who have an interest in a suit or may be affected by the result thereof.
“Necessary parties” are those who not only have interest in the matter, but also who in their absence, the proceedings could not be fairly and effectually dealt with GREEN V. GREEN (1997) 3 NWLR (PART 61) 480.
Paragraphs 4, 5, 6, 8, 9 and 10 of the statement of Defence are apt – pages 179 – 180 of the Record of Appeal.
Paragraph 4: “The Defendants state that upon the installation of the Claimant, the Ibereko Community was embroiled in turmoil and the peaceful co-existence of same was hampered.”
Paragraph 5: “The Defendants aver that it was consequent upon the state of the affairs at Ibereko Community afore stated that some members of the Community sent a Petition to the 1st and 2nd Defendants”
Paragraph 6: “The Defendants, upon the receipt of the Petition dated 26/6/2007 from members of the Ibereko Community, who came to the House in large numbers to present same, wrote a letter dated 10/9/07 to the Claimant with the said petition attached”
Paragraph 8: “The Defendants aver that upon a perusal of the said petition, they were of the opinion that the singular factor militating against the peace and transquitity of Ibereko Community was the enthronement of the Claimant, hence its decision to afford the parties involved the opportunity to state their respective case.”
Paragraph 9: “The Defendants further aver that apart from the Claimant and representatives of the Ibereko Community, the invitation was also extended to the Permanent Secretary, Ministry of Local Government and Chieftaincy Affairs to make representations before the House.”
Paragraph 10: “The Defendants also state that whilst the other parties invited responded, the Claimant utterly refused, but instead instructed his Solicitors to write the letter dated 14/9/2007 which had been attached to his List of Documents.”
Noteworthy is that the members of Ibereko Community were not specifically mentioned in the Statement of Defence. A well known fact is that in a Community, there are many persons.
In Paragraph 10 of the affidavit in support of the motion to join filed by the Appellants, they had averred thus:
“whereas in this action the legislative Hansard (proceedings of the Lagos State House of Assembly) of 29 October 2007 which is one of the pillars of suit No.BD/36/2007 is being sought to be annulled in this action and which fact makes it necessary for the Applicants herein not to stand by, but to join the action and establish the validity of the said Hansard,,
In Paragraph 10 it says
“I verily believe, that it is of necessity for the Applicants herein to properly establish that the proceedings of the Defendants of 29 October 2007 are perfectly lawful and constitutionally valid”
In effect, what the Appellants desire is that they be joined to establish the validity of the Hansard, otherwise, the prosecution of their suit may suffer. That it is imperative for them to be heard, once the proceedings are being questioned by the claimant.
Subsequent to the filing of suit No.BD/36/2007 which is a complaint about the deliberation of the State House of Assembly upon the content of an unsigned petition, is the suit, the subject matter of this appeal. The Appellants were not the petitioners, neither did they lay claim to the petition.
Decidedly, a distinction must be drawn between the desirability of making a person a party, and the necessity of making him one.
In SETTLEMENT CORPORATION V. HOSHSCHILD NO 2 (1959) 1 WLR 1664, it was held that joining a person as a party to proceedings did not arise, merely because the relief sought in the cause or matter might affect someone who was not a party, in respect of his rights at Common law or Equity.
In PEENOK V. HOTEL PRESIDENTIAL (1983) 4 NCLR. 122 Eso JSC and Obaseki JSC drew the necessary distinction between what it is desirable to do and what it is necessary to do and came to the conclusion that although it was desirable to join the Rivers State Government whose Edicts Nos. 15 and 17 were under attack, it was not necessary to join them before the Court could decide on the claim of the parties before it.
Perhaps this is the situation in the present appeal.
The Claimant at the Lower Court had not complained about the Appellants. As Onwuegbu JSC aptly put it in AJAYI v. JOLAYEMI (2001) 5 SC 14 @ 31 @ 57
“It is improper to join as co-Defendants persons against whom the plaintiff has no cause of action and against whom he has made no claim and whose interest is adverse to that of the Defendants”
Indeed OGUNDARE JSC in the lead Judgment put it succinctly thus:
“As there was no complaint against the Military Governor, it would be wrong to join him in these proceedings”
I agree with the learned trial judge when he observed at page 438 of the Record of Appeal thus:
“I have stated what the cause of action is and against whom the complaint is made. There is no method by which I can imagine that there is a complaint against the applicants that the Plaintiff has either explicitly or by mere implication made a claim against the applicants.”
An Appellate Court will interfere and overturn the decision of a trial Court joining a party to a suit if the trial Court proceeded on wrong principles of law, or if he failed to raise the necessary inference upon the facts before him – IWEKA v. A-G FEDERATTON (1996) 4 NWLR 362 @ 374 Paragraphs b-c.
A person shall not be joined as a co-Defendant against whom there is no claim by the Plaintiff – EDOKPOLO & CO LTD VS. SAM-EDO WIRE LTD 1984 NSCC (VOL.15) 553; OLUJITAN V. OSHATOBA (1992) 5 NWLR (PT.241) 326; F.B.N. (NIG) PLC V. AKPARABONG COMMUNITY BANK LTD (2006) ALL FWLR (PT.319) 927 @ 968 – 969 paragraph g – a.
As rightly postulated by the 1st Respondent in paragraph 5.8-page 10 in his Brief of Argument, the facts of the instant case have nothing to do with the Appellants.
While it may be desirable that the Appellants be joined to the Suit at the Lower Court, they are not parties that ought to, of necessity be joined, as the Lower Court can effectually determine the matter before it without the Appellants.
The result is that the learned trial Judge was right to have dismissed the application for joinder.
The sole issue for determination which was adopted by the 1st Respondent in consequently resolved in favour of the 1st Respondent and against the Appellants.
The appeal lacks merit and same is hereby dismissed in its entirety.
The Ruling of the Lower Court Coram E. A. Adebajo (J) delivered on the 23rd of April 2009 at the High Court of Lagos State, Badagry Judicial Division is hereby affirmed.
No order as to costs.
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother RITA NOSAKHARE PEMU, JCA.
I agree with the reasoning and conclusion reached therein, I also find that this appeal lacks merit and same is hereby dismissed by me in its entirety. The Ruling of the Lower Court coram E.A Adebajo (J) delivered on the 23rd of April, 2009 at the High Court of Lagos State Badagry Judicial Division is hereby affirmed.
No order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother, Rita Nosakhare Pemu, J.C.A., availed me the opportunity of reading in advance the elaborate judgment prepared by His Lordship to which I subscribe and adopt as my judgment in the appeal.
Appearances
E. U. Ani Esq.For Appellant
AND
B. A. Olubando Esq for the 1st RespondentFor Respondent
