WALDEM HOLDINGS LTD. & ORS v. S. E. AKPAINENEM & ANOR(2002)

WALDEM HOLDINGS LTD. & ORS v. S. E. AKPAINENEM & ANOR

2002)LCN/1246(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 26th day of June, 2002

 

CA/C/132/99

 

JUSTICES

DENNIS ONYEJIFE EDOZIE   Justice of The Court of Appeal of Nigeria

 

SIMEON OSUJI EKPE   Justice of The Court of Appeal of Nigeria

 

SULE AREMU OLAGUNJU   Justice of The Court of Appeal of Nigeria

 

Between

  1. WALDEM HOLDINGS LTD.
  2. E. S.AKPAN
  3. E. U. UMO – Appellant(s)

 

AND

  1. S. E. AKPAINENEM
  2. E. E. AKPAINENEM (For themselves and as representing ‘Nto Akpainenem Akpabio’) – Respondent(s)

 

OLAGUNJU, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of Akpabio, J., refusing the defendants/appellants’ application for joinder, of one Nse Okon Akpan Essien, who in subsequent references, would be called ‘N. O. A. Essien’ whenever the con permits as a representative of the family of Okon Akpan Akpan Essien claimed to be the defendants/appellants’ landlord to defend the action for declaration of title to land, trespass to the land and injunction to restrain further trespass to the land instituted against the defendants/ appellants by the plaintiffs/respondents. The history of the application giving rise to this appeal is circuitous for an easy understanding, of which it is necessary to give a rundown of the background facts.

On 15/2/95, the two respondents as plaintiffs took out a writ of summons against the 3 appellants as defendants and in paragraph 26 of their statement of claim filed on 17/3/95, the plaintiffs sought the following reliefs, viz;

(1) declarations

(a) that they are entitled to statutory right of occupancy over the plot of land known as ‘No. 23, Sanni Ogun Road, Ikot Ekpene’; and

(b) that the lease of the land to the 1st defendant in 1976, by the plaintiffs had expired and, therefore, the 3 defendants who were occupying the land are trespassers.

(2) N500,000 general damages against the 3 defendants for trespass to the land; and

(3) An order of perpetual injunction, against the 3 defendants restraining them from ‘further entering, interfering or remaining on the property’.

Following the disqualification on 30/7/98 of counsel for the defendants, G. A. Umoh, Esq., from further appearing for them and the declaration of the statement of defence, which he filed on behalf of the defendants as null and void, the new counsel for the defendants, on 2/10/98, sought extension of time for the defendants to enter appearance to defend the action and to file their statement of defence; for leave to join one N. O. A. Essien as the 4th defendant, to defend the action as a representative of ‘Nto Akpan Essien family’ and for the 4th defendant to be allowed to file his statement of defence, plan and counter-claim out of time. Objection was raised to the joinder of the 4th defendant. In a considered ruling the learned trial Judge granted the application of the 1st – 3rd defendants to enter formal appearance and to file their statement of defence out of time. But he refused leave to join N. O. A. Essien as the 4th defendant on the grounds that (a) ‘there is no application for joinder made by Nse Okon Akpan Essien’; and (b) even if there is such an application, ‘the applicant(s) have failed to prove their interest in the subject matter of the substantive suit’ because ‘whatever joint proprietary interest the family of Nto Akpan Essien had with family of the respondents over the subject matter of this suit, had been completely extinguished or vacated in the wake of partitioning of the property to the respondents’ ‘family’ (vide page 261 of the record).

The challenge of the reasons for refusing the application for joinder is the focus of this appeal by the appellants, who filed an original omnibus ground of appeal and with the leave of this court filed 3 additional grounds of appeal. From the four grounds of appeal, the following three issues for determination were distilled and embodied in the appellants’ brief of argument:

“(1) whether there was an application for joinder before the trial court?

(2) whether the trial court considered the application of the appellants to join Nse Okon Akpan Essien, as defendant in the suit.

(3) whether the trial court was correct in making what is ex facie, a final declaration affecting the rights of the parties and non-parties in his ruling on an application for joinder of parties.”

The respondents adopted the issues formulated by the appellants the first and second of which would be taken together. Arguing the first issue, learned Counsel for the appellants reproduced the format of the appellants’ motion filed on 7/10/98, to which is subjoined the reliefs sought by the appellants and which distinctly listed them to include ‘an order granting leave to Nse Okon Akpan Essien to join as 4th defendant in this suit for himself and on behalf of Nto Akpan Essien (Family)’ and for leave to allow the said N.O.A. Essien to (a) defend the action in a representative capacity and (b) file his defence, plan and counter-claim. He highlighted the affidavits of both the 2nd defendant/appellant and N.O.A. Essien supporting the application for joinder. He conceded that there is a lapse in the description of N.O.A. Essien in the body of the motion, but contended that the misdescription is not fatal to the application as it is error of counsel, which he argued is open to this court to correct so as to do a substantial justice in the matter. He stressed that there is the need to join the family of Nto Akpan Essien, who N.O.A. Essien ,was appointed to represent at the trial, because the family are the appellants’ landlord.

The learned Counsel picked to pieces the findings of the learned trial Judge that there were ‘two separate and distinct applicants’ before the court, one seeking extension of time to enter appearance and to file their statement of defence and the other seeking leave to be joined in the action. He submitted that the view of the learned trial Judge is erroneous because ‘he arrived first at a conclusion, then spent his entire ruling justifying that conclusion’. In other words, it is the contention of the learned Counsel that the decision of the learned trial Judge should have followed evaluation of the evidence and not evaluation following the decision.

On issue two, the learned Counsel contended that a party to an action can apply to join a person who is not a party to the action in the same way, as one who is not a party to an action can apply to be joined in the action. He outlined the affidavit of the 2nd respondent raised in support of the application for joinder showing in material parts that the appellants are tenants on the property in dispute, who faced with the threat by the respondents briefed their landlords, who decided to join in the suit and appointed N.O.A. Essien, as their representative to that end. That the appellants had not filed a defence to the respondents’ action and have had to take steps to rebut the respondents’ claim that foisted themselves upon the appellants as their landlords. He disparaged the respondents’ contrivance of customary arbitration that was calculated to be raised as an estoppels to exclude from the proceedings a necessary defendant, a ruse which, he argued, the learned trial Judge seized upon to keep out the representative of the appellants’ landlord, who is entitled as of right to be joined as a party. He agitated that the learned trial Judge ‘goes through several academic summersaults and lands left foot, ignoring’ material facts and holding that there was no application to join Nse Okon Akpan Essien before him.

The learned Counsel submitted that the court has a duty to consider a matter brought before it dispassionately craving in aid the Supreme Court’s exhortation on the point in Bayol v. Ahemba (1999) 10 NWLR (Pt. 623) 381, 392-393. He agitated that it is obvious that justice cannot be said to have been done to the appellants who ‘have been forced to put up a defence without a primary prong thereof – a tenant answering for title against a third party without his landlord’. It is neither just nor fair, he lamented. The learned Counsel finally submitted that justice of this case would be met by setting aside the decision of the trial court and remit the case for a proper consideration of the issue relying on Jamgbadi v. Jamgbadi (1963) 2 SCNLR 311; Ezeoke v. Nwagbo (1988) 1 NWLR (PI. 72) 616,627; Uor v. Loko (1988) 2 NWLR (Pt. 77) 430 and Bayol v. Ahemba (supra). He urged this court to do so.

The reply by learned Counsel for the respondents to the first issue is that on the face of the appellants’ motion of 7/10/98, there was no application for joinder ‘in the legal sense or in the eyes of the law’ because N.O.A. Essien, who asked to be joined as representative of Nto Akpan Essien family did not support his application with an affidavit as enjoined by rule 3 of Order 8 of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989. He contended that mere adoption of the affidavit of the 2nd appellant by N.O.A. Essien in his own affidavit, when the affidavit adopted does not support an application for joinder is not evidence of the relief being sought by N.O.A. Essien. On that premise, he submitted that the learned trial Judge came to the right decision that there was no application for joinder before him and ‘urged … this court to dimiss the appeal’ on that ground.

On issue two, the learned Counsel replied the appellants’ argument with the poser from the judgment of the learned trial Judge, whether leaving aside the irregularity of the application ‘the applicant satisfied the conditions and/or principles under which the court can exercise its undoubted discretion in his favour?’ Repeating the dictum of Tobi, J., as he then was, in Bull v. Brown (1985) HCNLR 1341, 1354, cited in the judgment of the court below, on the duty of an applicant, wishing to be joined in an action to prove that he has sufficient interest in the action the learned counsel submitted that the decision of the trial court from which it is manifested that the court has ‘kept itself abreast of the principles governing an application for joinder’ (of parties) is impeccable. On that note, he urged this court to discountenance the argument of learned Counsel for the appellants, that the trial court did not accord their application adequate consideration.

The two postulates on which the elaborate analysis by the learned trial Judge is pitched are the stumbling block to coming to the pith of the limited issues that fell to be decided and served as a catalyst for running headlong to the abyss of verbiage into which the arguments ultimately drifted. The postulates are about identification of (a) who were the applicant or applicants and (b) which are the applicable rules of court that govern the application. I will examine them in turn.

Firstly, the conclusion by the learned trial Judge that the application for joinder failed because N.O.A. Essien, who is the representative of the appellants’ landlord and, therefore, the applicant did not file an affidavit enumerating the reliefs he was seeking is erroneous. The applicants before that court were the 3 defendants who were praying the court to join their landlord, Okon Akpan Akpan Essien family, and not N.O.A. Essien, who in a representative action is a delegate of the family he is representing. That either the plaintiff or the defendant can apply for a joinder of another person is clear from the provision of rule 16 of Order 11 of the Akwa Ibom State High Court Rules, 1989, hereinafter called ‘the Rules of the Trial Court’. This is made more manifest by rule 17 thereof, albeit on third party joinder.

That being the case, the learned trial Judge is in a serious error that there were two applications before him. On the contrary, there was only one application asking for two distinct but related reliefs, i.e. broadly, extension of time to take certain steps out of the stipulated time and joinder of another defendant with incidental reliefs, and the application was duly supported by three separate affidavits deposed to by the 2nd defendant/respondent, E.O. Essien and N.O.A. Essien – vide pages 127, 132 and 134 of the record. I shall return to the contents of those affidavits later.

Secondly, the learned trial Judge was gravely in a quandary about the applicable rules of court governing joinder of parties from the discursive style of his analysis of the point in his ruling, on pages 245 to 249 of the record, with the pervading undertones of equivocation and shuffle. He had stumbled across over the periphery of the answer, when he identified rule 16 of Order 11 of the Rules of the Trial Court but over-looked the provision of sub-rule 5(1) of the same Order in which the answer lurked. It reads:

If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be…” (Italics mine)

Rule 16 of Order 11 which is a prelude to sub-rule 5(1) and a good get off to activating the relief for a joinder under that sub-rule reads:

“Any application to add or strike out or substitute a plaintiff or defendant may be made to the court or a Judge in Chambers at any time before trial, by motion or summons, or in a summary manner at the trial of the action”

Sub-rule 5(1) of Order 11 not only empowers the court to order a joinder whenever, it is considered necessary to do so but more appropriately for the purpose in hand, it also stipulates the circumstances under which the court may do so, namely, where the applicant asserts that (a) he is entitled to some share or interest in the subject matter of the suit, or (b) claims some share or interest in the subject matter of the suit or (c) he is likely to be affected by the result of the action. Thus, the issue before the trial court was to consider whether the application for joinder of Okon Akpan Akpan Essien family, through their representative as the 4th defendant falls into any of the three categories outlined in sub-rule 5(1) of Order 11 and that calls for examination of the supporting affidavits along with the respondents’ counter-affidavit.

In paragraphs 4 to 6 of the affidavit of E. S. Akpan, 2nd defendant/appellant, he deposed to the following material facts:

“4. The 1st – 3rd defendants are tenants on the land in dispute. We thus, briefed our landlords the family of Okon Akpan Akpan Essien, Ikot Esetang Uruk Uso in Ikot Ekpene of the events and the suit. The family thereupon met and resolved inter alia to:

(a) apply to join in the suit;

(b) appoint Nse Okon Akpan Essien to represent the family in the suit.

The resolution of the family made available to me by the said Nse Okon Akpan Essien is exhibit B hereto. An affidavit deposed to by one of those represented by the aforenamed is exhibit C.

  1. The present defendants also want and indeed, need the family as their landlords to be joined in the suit as defendants.
  2. The applicants respectfully seek leave of the court for the named Nse Okon Akpan Essien to join in the case, file his defence, counter-claim and plan. And affidavit deposed to by the said Nse Okon Akpan Essien is exhibit hereto.

Exhibit ‘B’, the resolution of Okon Akpan Akpan Essien family of 12/9/98, mentioned in paragraph 4 of E. S. Akpan’s affidavit, reproduced above, reads:

“RESOLUTION OF OKON AKPAN AKPAN ESSIEN FAMILY DATED SEPTEMBER 12, 1998.

At a meeting of the family held at the family hall at No. 7 Etok Akpan Road, Ikot Ekpene, the Walden Holdings people briefed the family on suit RT/10/95 brought against them by one Sunday Essien Akpainenem, etc.

The family resolved as follows:

  1. That as landlords, the family must join the suit to protect its property.
  2. That since the family head, Sunday A. A. Essien is blind, Nse Okon Akpan Essien be and is authorised to join the case on behalf of the family.

Dated this 12th September, 1998

  1. T. I.

———–

Sunday A. A. Essien

family head.

  1. O. Essien, a member of Okon Akpan Akpan Essien family, deposed in paragraphs 2, 3 & 4 of his affidavit as follows:

“2. Nse Okon Akpan Essien is one of the leading members of the same family

  1. At the family meeting held on the 12th day of September, 1998, at NO.7 Etok Akpan Road, it was unanimously decided that the said Nse Okon Akpan be joined in suit No. HT/10/95 as representing himself and the family of Akpan Akpan Essien.
  2. That I am one of those represented by him.”

Bringing up the rear on the part of the appellants the appointed representative of Okon Akpan Akpan Essien family, N. O. A. Essien, who is to be joined as the 4th defendant deposed to an affidavit on 7/10/98 in paragraphs 1 to 3 of which he affirmed that:

“1. That I am a member of Okon Akpan Akpan Essien family, Ikot Esetang, Uruk Uso, Ikot Ekpene and was present at the family meeting held on September 12, 1998, at the family meeting hall.

  1. I was nominated to the represent family in this suit and I seek to join the suit in that capacity with leave of the Honourable Court.
  2. I have read the affidavit of Edet S. Akpan, 2nd defendant hereto. I confirm the depositions therein and adopt them.”

However, on the other side of the coin, the 1st plaintiff/respondent deposed to a counter-affidavit on 21/10/98 and affirmed in paragraphs 3 to 11 as follows:

“3. That 1st -3rd defendants do not claim to be landlords of the property now in dispute that is No. 23 Sanni Ogun Road, Ikot Ekpene.

  1. That exhibit B attached to the motion paper indicates that the famiy of Okon Akpan Akpan Essien are indicating interest to join in the suit as landlords.
  2. That there is no suit pending in court against the family of Okon Akpan Akpan Essien.
  3. That the familly of Okon Akpan Akpan Essien cannot defend a suit not filed against them. They have no interest in the subject matter of the suit.
  4. That the family of Okon Akpan Akpan Essien, who wants one Nse Okon Akpan Essien to represent them has no interest in the subject matter of the suit.
  5. That the property of Essien Akpabio and Okon Akpan Akpan Essien were partitioned between the 2 families by arbitrators nominated and set up by Edidem Bassey and Chief Okon Udo Idung, then village head of Uruk Uso on 17th May, 1993.
  6. That the panel after due consideration warned Sunday Akpan Essien to steer clear the area where the cold room situate (area in dispute) as this area belongs to Nto Essien Akpabio family.
  7. That the arbitration report was reduced into writing and is dated 17th May, 1993. That the report was photocopied by mechanical process and that process ensured the accuracy of the copy and those copies were compared in my presence.
  8. That I was given one of the photocopies. That the photo copy which I was given by the panel of arbitrators is hereby attached and marked exhibit A.”

I will now give a resume of the material facts deposed to by the parties in their affidavits to which the law would later be applied with a view to testing which side of the litigious divide justice of the case would swing in support. The appellants’ case is that they are tenants on the premises for which they were sued in trespass by the respondents, who also claimed a declaration of title to the premises as well as injunction restraining them from further trespass on the premises. Having acquired the premises from Okon Akpan Akpan Essien family and not from the respondents, the appellants reported what happened to them to their landlord, who decided that the family should be joined as a defendant and appointed a senior member of their family to represent the family as a defendant in the action. To this end, the appellants applied to the court for leave to join the representative of the landlord as the 4th defendant in the action.

The application by the appellants was opposed by the respondents who in their counter-affidavit deposed that the respondents currently have no dispute in court with Okon Akpan Akpan Essien family which the latter can offer to defend and that as the family, who are asked by the appellants to be joined have no interest in the present dispute between the respondents and the appellants the application to join Okon Akpan Akpan Essien family is, in law, wrong and, therefore, incompetent. The respondents further deposed that the propeny which the family of Essien Akpabio (the respondents’ family) held jointly with Okon Akpan Akpan Essien family had been partitioned by an arbitrator appointed locally to do so and who in 1993, awarded the property in dispute to the respondents’ family as per photocopy of the arbitration report annexed to the counter-affidavit as exhibit ‘A’. The respondents concluded that it is the express term of the award by the arbitrator that Okon Akpan Akpan Essien family should refrain from any

interference with the premises in dispute between the appellants and respondents, the subject of this appeal.

Against the foregoing, factual backdrop the question to be considered is whether Okon Akpan Akpan Essien family, who offered to be joined and whom the appellants applied to the court below to be joined satisfied any of the three conditions in sub-rule 5(1) of Order 11 of the rules of the trial court for any person asking to be joined as a party to a duly constituted action. This court having found to be erroneous the finding of the learned trial Judge that there was no application for joinder or that the application incorporating the relief for joinder is not supported by affidavit evidence the only viable point around which the arguments of the parties hover is whether Okon Akpan Akpan Essien, to be contracted hereinafter to ‘O. A. A. Essien family’, has interest in the dispute between the appellants and respondents over the premises in dispute.

The argument on behalf of the appellants is that the interest of O. A. A. Essien family as the lessor, who granted them lease of the premises in dispute cannot be determined in an action between the appellants and the respondents involving title to the land without joining O. A. A. Essien family as the lessor. Learned Counsel for the respondents as a mouthpiece of the learned trial Judge could not offer any articulate reply to the point beyond echoing with encomium the learned trial Judge’s opinion on the matter as one from a guru with the law locked up in his bosom. In any case, to counter the argument of learned Counsel for the appellants the argument which is open in defence of the ruling of the learned trial Judge is that the premises in dispute having been awarded to the respondents’ family by the arbitrator on partition of the property jointly owned by O. A. H A. Essien family and the respondents’ family the former family no longer have interest in the premises in dispute and can, therefore, not be joined in an action in which they are strangers.

But the whole idea of raising the issue of partition of the premises in dispute runs counter to the general principle that in considering an interlocutory matters a court should avoid entering on an inquiry on matters which may prejudge issues which are yet to be tried in the substantive action still pending before the trial court. See Orji v. Zaria Industries Ltd., (1992) 1 NWLR (Pt. 216) 124,141; Akapo v. Hakeem Habeeb (1992) 6 NWLR (Pt. 247) 266, 287; Fasakin v. Fasakin (1994) 4 NWLR (Pt. 340) 597, 622; Udeze v. Orazulike Trading Co. Ltd. (2000) 3 NWLR (Pt. 648) 203, 213-214 and Universal Trust Bank Ltd. v. Dolmetsch Pharmacy (Nig.) Ltd. (2002) 8 NWLR (Pt. 770) 726, 748-749. It follows that whether or not there was a partition of the property of which the premises over which there is a dispute between the appellants and the respondents form a part is a matter to be considered in the substantive action pending before the trial court. Therefore, it is premature and erroneous for the learned trial Judge to have considered the matter during an interlocutory application. Accordingly, the question of partition of any property between O. A. A. Essien family and the respondents’ family which was wrongly examined by the learned trial Judge and made the basis of his decision in refusing the appellants’ application for joinder must be disregarded and I do so.

That leaves the respondents without any viable objection to the joinder of O. A. A. Essien family as a defendant in the action between the appellants and respondents at the court below and it remains a straight issue of whether the application for joinder satisfies one of the conditions stipulated by sub-rule 5(1) of Order 11 of the Rules of the Trial Court. The appellants’ claim that they were granted by O.A.A. Essien family the lease of the property which they are currently in possession of is not disputed by the respondents.

Therefore, it follows that the lessor whose ownership of the property is being threatened by the action against the appellant ending before  the trial court comes within two of the three alternative requirements stipulated by sub-rule 5(1) of Order 11 of the Rules of the Trial Court, namely, (a) that they have a share or interest in the subject matter of the suit before the trial court and (b) that they are likely to be affected by the result of that suit. That resolves issues one and two in favour of the appellants.

The arguments canvassed in issue three is whether the learned trial Judge was right in making during proceedings on an interlocutory matter final pronouncements and by so doing deciding the rights of the parties as well as the rights of those, who were not parties to the action. The arguments canvassed at length the validity of the Report of the Arbitration Panel on partition of the property under the joint ownership of O.A.A. Essien family and the family of the respondents. But because of the conclusion which I have reached on issues one and two as a pointer to the outcome of the appeal examination of this particular issue at this juncture would be prejudicial to the issue of partition if it comes up during the hearing of the substantive action at the court below. Therefore, I will be content to merge the third issue with the conclusion which I have reached on issues one and two on the partition of the joint property held by the family of the respondents and O. A. A. Essien family, which turned on the report of arbitration, a deliberation on which I consider to be premature as belonging properly to the realm of the deliberations on the substantive action where and when it should be raised.

The corollary is that the appellants having applied to join their landlord or lessor who granted them a lease over the property for which they are sued by the respondents the landlord or lessor is a ‘necessary party’ within the definition of that expression in Green v. Green (1987) 7 SCNJ 255, 269; (1987) 3 NWLR (Pt. 61) 480 for which see, for elaboration, Lajumoke v. Doherty (1969) 1 NMLR 281; Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101; Uku v. Okumagba (1974) 9 NSCC 128; Oshoboja v. Dada (1987) 4 NWLR (Pt. 66) 565; Ojo v. Oseni (1987) 4 NWLR (Pt. 66) 622 and Ugorji v. Onwu (1991) 3 NWLR (Pt. 178) 177. In consequence, the landlord or lessor is, by operation of sub-rule 5(1) of Order 11 of Akwa Ibom High Court Rules, 1989, coupled with the fact that the action was instituted against his tenants, the three appellants, one who has a share or interest in the subject matter of the suit but more particularly one who would be affected by the outcome of the action.

Let me pause here, to expatiate that the most liberal of the three conditions in sub-rule 5(1) of Order 11 which allows any person who may be affected by the result of an action to be joined has a chequered history as expounded by the Supreme Court in Peenok Investments Ltd. v. Hotel Presidential Ltd. (1982) 13 NSCC 477; (1982) 12 SC 1. In that case, Idigbe, JSC, traced how the rule on joinder acquired a liberal interpretation. He recalled the decision of the English Court of Appeal in Vandervell’s Trusts: White v. Vandervell Trustees (1969) 3 All NLR 496, 499, which held that the English rule on joinder of party must be interpreted as broadly as possible. But on appeal to the House of Lords, (vide (1971) A.C. 912), the decision was reversed and superseded by a restrictive interpretation.

There followed the legislative decider which amended sub-rule 6(2) of Order 15 of the English Rules of Supreme Court and, in effect, restored the interpretation by the Court of Appeal with the inclusion among the supplicants in favour of whom an order of joinder may be granted a person ‘who may be likely to be affected by the result’ of the action.

It is the benefit of the liberal interpretation of the rules on joinder by the English Court of Appeal in Vandervill’s case, supra, overruled by the House of Lords but restored by legislative fiat, that accrued for the benefit of interpretation of sub-rule 5(1) of Order IV of the Rules of the High Court of the former Eastern Nigeria in Peenok Investments Ltd. v. Hotel Presidential Ltd., supra, in which the judicial colour of this country was nailed to the mast over the liberal interpretation of the rule on joinder. That rule of the High Court of the former Eastern Nigeria was later re-enacted as the current sub-rule 5(1) of Order 11 of the Rules of the High Court of Akwa Ibom State, following its acceptance as a model for the Uniform Procedure Rules for the whole country. With the benefit of the liberal interpretation, the scope of the class of people, who are allowed to be joined in an action became considerably widened and that serves as a boost to a correlative principle which is an adjunct of the rule of joinder and one which enjoins the avoidance of multiplicity of actions. The goal of avoiding multiplicity of actions cannot be attained by any interpretation that stifles the rule of joinder.

Be that as it may, coming to the kernel of the merits of the factors on which the equity of the parties hinges and which calls for balancing, I take note of the fact that one of the strong points made on behalf of the plaintiffs/ respondents is that their action against the defendants/appellants as constituted by their pleading is complete and does not require joining the family of Okon Akpan Akpan Essien sought by the defendants/appellants to be joined, but one with whom the plaintiffs/respondents claim they have no axe to grind. In other words, the argument of the plaintiffs/respondents amounts to no more than saying that O. A. A. Essien family are not a necessary complement to the resolution of the dispute before the trial court. That may very well be so from the plaintiffs/respondents’ point of view. But the court has an abiding duty to balance the competing right of parties before it.

The plaintiffs/respondents who chose to proceed against only the three defendants/appellants are freely entitled to pursue their remedy against those defendants/appellants alone. But when the defendants/appellants, who also have a corresponding right to call another person to join them in defending the action opted to exercise their right by calling upon their landlord or lessor to be joined to defend the action they are also at liberty to do so. The only constraint against allowing the exercise of the defendants/appellants’ right is where the court is not satisfied that the person sought to be joined has any share or interest in the subject matter of the suit or is likely to be affected by the result of the action.

On the raw and untested facts of this case there is a strong likelihood that, prima facie, O.A.A. Essien family as a ‘defendants/appellants’ landlord or lessor would be affected by the outcome of the action which turns on title to the land which their tenants or lessees are occupying. That being the case, the only judicial method of testing the right of the family, who is sought to be joined is by allowing them to join the fray so as to enable the court to sieve the wheat from the chaff. Therefore, Okon Akpan Akpan Essien family as the three appellants’ landlord or lessor are entitled, ex debito justitiae, to be joined as a defendant to defend the action as prayed by the appellants.

In consequence, Akpabio, J., of Ikot Ekpene Judicial Division of the Akwa Ibom State High Court came to a wrong decision in his ruling of 27/1/99, by refusing the appellants’ application to join as a defendant the family of Okon Akpan Akpan Essien, who are the appellants’ landlord or lessor. Therefore, the decision is set aside.

In its place, it is hereby ordered that Nse Okon Akpan Essien be added to the suit as the 4th defendant representing Okon Akpan Akpan Essien family. It is further ordered that the Hon. Chief Judge of Akwa Ibom State shall assign the case to another Judge of that court other than Akpabio, J., who because of the age of the case shall give it an accelerated hearing.

The appeal succeeds and it is allowed with the joinder of N.O.A. Essien as the 4th defendant representing O.A.A. Essien family ordered and the case is to be heard by another Judge of Akwa Ibom State High Court, who will accelerate the hearing. I award N5,000.00 costs against the respondents jointly and severally.

 

EDOZIE, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Olagunju, JCA, and I agree with his reasons and conclusion, in allowing the appeal with the joinder of N.O.A. Essien as the 4th defendant representing O.A.A. Essien’s family ordered. I abide by all the consequential orders made in the lead judgment.

 

EKPE, J.C.A.: I have read before now, the leading judgment, just delivered by my learned brother, Olagunju, JCA, and I agree with him that the appeal should be allowed.

I also allow the appeal and abide by the consequential orders made in the leading judgment.

 

 

Appeal allowed.

 

 

 

Appearances

Chief U. S. UyoukoFor Appellant

 

 

AND

  1. A. Udoh, Esq.For Respondent

 

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