Alhaji Ishola Are Ogele V. Alhaji Aileru Dare Saliu & Ors. (2005)
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MUHAMMAD SUIFULLAHI MUNTAKA-COOMASSIE, J.C.A.
In the High Court of Justice the plaintiff, Alhaji Ishola Are Ogele, claims against the defendant, Alhaji Aileru Dare Saliu, as follows:
“1. Special damages of N190,000 (One hundred and ninety thousand naira) only for the wanton destruction committed by the defendant on the plaintiff’s family land, situate, lying and being at along Airport Road, Budo Nuhu Village Ilorin subject matter of this suit on or about 29th day of March, 2001.
PARTICULARS OF SPECIAL DAMAGES
5,000 heaps of yam destroyed by the defendant at N10.00 each N50,000.00
5,000 stems of cassava destroyed by the defendant at N10.00 each N50,000.00
5,000 stems of maize destroyed by the defendant at N10.00 each N50,000.00
10 palm trees destroyed by the defendant at N2,000 each N20,000.00
10 lucust beau trees at N2,000 each N20,000.00
N190,000.00
2. THE SUM OF N100,000.00 on the footing of aggravated and exemplary damages for the trespass committed and still being committed without let up by the defendant on the plaintiff’s family land situate, lying and being at along Airport Road, Budo Nuhu village Ilorin, Kwara State subject matter of this case.
3. A DECLARATION that the plaintiff for and on behalf of his Are Ogele family is the holder of a statutory right of occupancy on those pieces or parcels of land consisting of 6,732 square metres and 19.090 metres approximately and respectively at along Airport Road, Budo Nuhu Village Ilorin, Kwara State.
4. AN ORDER of perpetual injunction restraining the defendant through or by himself, servants, agents, privies any person or persons howsoever or whosoever from committing and/or continuing further acts of trespass or doing anything whatsoever on the plaintiff’s family land situate, lying and being at along Airport Road, Budo Nuhu village, Kwara State subject matter of this suit.
Dated this 4th day of April, 2003.
The Defendant denies the claim of the Plaintiff. He stated that the Budo Nuhu family represented by Alhaji Baani has been the customary owner of the land being claimed by the Plaintiff. The Defendant insisted that he purchased the piece of land in dispute from the accredited owner of the land, Alhaji Baani Gaa Budo Nuhu sometimes in 1995. He therefore prays that the High Court should dismiss the plaintiff’s case as being frivolous, vexatious and a gross abuse of the process of that court.
The Plaintiff at the High Court filed a reply to the Statement of defence. He joined issues with the Defendant on certain paragraphs – A1 and 2 and B2, 3, 4, 5, 6, 7, and 8 of the Statement of defence and the Defendant is put to the strictest proof thereof.
The Defendant also filed a preliminary objection and argued same. The said preliminary objection reads thus:-
“Take Notice that the defendant shall at the hearing of this case move the Court by way of preliminary objection for an Order:-
1. Dismissing the plaintiff’s case for lack of locus standi to institute same.
2. Dismissing the plaintiff’s case for gross abuse of court process”
Learned trial judge listened to both parties and held that the preliminary objection is misconceived and dismissed same. On page 31 of the Record learned judge held thus:-
“…In the final result the objection of the defendant, that the plaintiff lacked Locus Standi to institute this case and that it was an abuse of the process of court fails in its entirety. The objection is over ruled. It is hereby dismissed”.
The application for the order of the High Court to join the two applicants as defendants in the main suit was taken, and was vehemently contested. Many documents were tendered and admitted in evidence. The central issue then was whether this suit at hand will not be a duplication of the other suit now pending on appeal before the Supreme Court and whether a suit becomes an abuse of court’s process or otherwise by mere joinder of a party. Learned trial judge considered the arguments and submissions of counsel and held that the application for joinder is in order and granted same in those terms on p.49 of the Record:-
“In the final result the application to join the 1st and 2nd Applicants as defendants are to be joined as the 2nd and 3rd defendants respectively in the suit”.
It is against this decision the Plaintiff appealed to this court on four grounds. In accordance with the rules of this court parties filed their respective Briefs of arguments. The Appellant’s counsel on behalf of his client distilled the following three issues for the determination of the appeal:-
“1. Whether the trial court properly joined the 2nd and 3rd respondents as parties to the case in all the circumstances of this case.
2. Whether a trespasser who was put in possession by another trespasser can claim the right to perpetrate its illegality.
3. Whether in view of the earlier decision of the trial court on the issue of abuse of Court process be could still predicate the grant or refusal of the application for joinder on same. The Respondent in turn formulated one issue thus:-
“Whether the trial court properly exercised its discretion to join the 2nd and 3rd respondents as parties to the suit”.
In the reply Brief of the Appellant it was alleged that the sole issue raised in the Respondent’s Brief has not been linked or related to any of the grounds of appeal. He then submitted that the point raised in the other issues are connected by the Respondent. He relies on the case of DAPUB V. KOLO (1993) 9 NWLR (Part 314) 254.
Learned counsel for the Appellant was not sure when he stated that on page 1 of their reply Brief thus:-
“…The nearest to the lone issue (if at all) is issue No. (i) issue No. (ii) and (iii) have not been addressed or touched in the reply Brief at all (in the Respondent’s Brief I suppose). It is therefore necessary for me to juxtapose the ground (i) with the lone issue and see whether it has anything to do with any of the grounds of appeal.
GROUND ONE:
The learned trial judge erred in law and came to a perverse decision when he granted the application by the 2nd and 3rd defendants to be joined as parties”.
I have closely considered the particulars of the ground and the sole issue formulated by the Respondents and, with tremendous respect to the learned senior advocate, I hold that the sole issue could be said to be germane, cognate and apposite to the first ground of appeal and I so hold.
I will therefore quickly dispose of the issue No.1 as formulated by the Appellant as against the sole issue distilled by the Respondent. I will then decide for myself whether to answer issue No.1, affirmatively or otherwise.
On the issue No.1, the Appellant, as Plaintiff was concerned solely with the Defendant (Alhaji Aileru Dare Saliu. The claims, the declaration and Orders sought at the lower court were against him only and no other person. It was he alone, that caused the destruction and mischief on the land in dispute. None of the 2nd and 3rd Respondents were accused of doing any thing harmful by the Plaintiff.
Furthermore, the Defendant responded to the Statement of claim and joined issue with the plaintiff. The appellate as plaintiff therein replied to the Statement of defence, see pp.6 and 7 of the Record. The complaint of the Appellant under issue No.1 – which comprises of grounds 1 & 3 – is that the 2nd and 3rd Defendants were never a party to the suit. Their absence in the matter does not mean anything. They are not therefore necessary parties whose absence the court cannot effectually and completely adjudicate upon and settle the questions involved in the case or matter.
Learned counsel for the Appellant contended that there is no claim against the 2nd and 3rd Respondents therefore the order of the lower court joining them is against Order II Rules 3 and 16 of the Kwara State High Court (Civil Procedure) Rules. There is judicial later interpretation of rule 16 of Order 11 above supra. See the decision of this court to the case:-
OKEDAD V. OGUNKAYODE (1994) 1 NWLR (Part 318) 26 at 36 where my learned brother Nsofor JCA held that only a plaintiff or Defendant can bring an application to add or strike out or substitute a party. In any case the Plaintiff was not suing any of the two Respondents joined can the plaintiff lawfully be compelled or bound to sue a party against whom he has no claim? Learned Senior Advocate on behalf of the Appellant answered negatively, he submitted that the action taken by the lower court was contrary to the relevant High Court Rules and the authorities available. He relied on the following decided cases:-
1. OLAJITAN V. OSHATOBA (1992) 5 NWLR (PART 241) 326 AT 334 – 335
Counsel lifted the decision in the above case to the effect the “a person should not be joined as a defendant against whom there is no claim by the Plaintiff”. He again cited the case of FAJUMOKE V. DAHORTY (1969) 1 ALL NLR 281 where Denma J. posited thus:-
“I am quite clear, however that the court ought not to bring in any person as defendant against whom the plaintiff does not desire to proceed unless a very strong case is made out, showing that in the particular case justice cannot be done without his being brought in”.
Learned counsel further submitted that some of the two Respondents can honestly establish their interest in the light of the claim before the court. Again learned counsel continues no claim is directed at or against both the plaintiff/appellant.
Before I proceed further I wish, with respect, to sound a warning that we should all remember that we are here dealing with the property or otherwise of the joinder of the two Respondents said to be ordered by the lower court. We are not in anyway dealing with the substantive matter. In other words, are we allowed at this stage to touch on the substantive matter? I wish to state that any party who thinks the matter cannot be correctly decided without his presence us a party must point to his interest in the matter which cries for protection. He may not only shown his interest in the subject matter but also must establish that the interest of his was be injuriously affected if he is not made a party thereto. That being case I am not prepared the moment to delve into the issue of jus terii as a defence or less pendis. Rather I will prefer to consider closely Order 11 Rules 3 and 16 of the Kwara State High Court (Civil Procedure) Rules hereinafter called Rules. I will therefore adopt the principles enunciated from the Rules and decided authorities guiding joinder of parties depicted on Page 7 of the Appellant’s Brief as follows:-
“(i) The relevant rule of court must be relied upon and interpreted as a guide.
(ii) Is it just and convenient to join the person?
(iii) Will the presence of the person as a party enable the court to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter?
(iv) Is the cause or matter liable to be defeated by the non-joinder?
(v) Is it possible for the court to adjudicate on the cause of action set up by the Plaintiff unless the person is added as defendant?.
(v) Is the person sought to be joined a person who ought to be joined”?
See also the cases of:-
SEE GREEN VS. GREEN (1987) NWLR (PT.61) 480
INVESTMENTS LTD VS. HOTEL PRESENTIAL LTD. (1983) 4 NCLR 112.
IGBOKWE VS. IGBOKWE (1993) 2 NWLR (PT.273) 29.
In a nutshell, the Appellant is contending that the lower court did not exercise its discretion judiciously and judicially thereby allowing this court to Interfere with such exercise of that court’s discretion. This must be so, otherwise this court as an appellate court could would not easily interfere with the exercise of discretion by the lower court. See in UNIVERSITY OF LAGOS VS. AIGORO (1985) 1 ALL. NLR (Reprint) 64.
This is a starting point by the Respondent who argued that the Appellant did not show that the trial court in the course of joining the two Respondents considered irrelevant matters or had ignored relevant facts or has displayed a misconception of law. He submitted in this appeal that the function of this court is to review the exercise of the lower court of its exercise of discretion. He submitted that since the lower court made some finding of fact which are not challenged by the Appellant, for good or bad those facts remain valid for the purposes of this appeal. He relied on this court decision in SALAUDEEN V. OLADELE (2003) 3 NWLR (PT.806) 29 AT 44. Learned counsel for the Respondent Mahmud Abdul-Gaffar insisted that the finding of facts by the lower court were neither challenged nor appealed against. Those views cannot therefore be faulted. He then cited the case of LALDEM LTD V. AKPAWENEM (2003) 3 NWLR (PART 807) 300/317. He then urged this court to dismiss the appeal.
Having considered the Briefs of both counsel and the submission thereto I am of the firm view that this appeal is pregnant with some merits for the following reasons:-
1. On the face of it the Plaintiff’s claim was specifically against the 1st Defendant/Respondent and no other person was accused for destroying the crops on the said land the subject matter of this suit. The 2nd and 3rd Respondents were never alleged to have trespassed on the said land. That being the case there was no injunction sought to restrain them. It appears to me clear that issues were jointed strictly between the Appellant and the 1st Defendant and no other. As I stated earlier in this judgment that I am not prepared to tread on the substantive issue as to who is the owner, who is in possession or who is the tenant and so on. There is no specific paragraph or paragraphs that claim against the two parties joined. Going by the rules 3 and 16 of Order 11 of the Rules I cannot see how 2nd and 3rd Respondent can be lawfully joined. See OKESADE V. OGUNKAYODE (1994) 1 NWLR (PART 318) 26 AT 36 where my learned brother NSOFOR JCA came out forcefully against joining some body who is not a party to a proceeding. He says, “And it is a cardinal principle that a plaintiff, who conceive that he has a cause of action against a particular person or defendant, should be allowed to pursue his remedy against that defendant, alone. He should not be compelled to sue to do battle with person against whom he alleges no, “injuria”, no legal wrong, or against when he has no quarrel and does not wish to sue”.
There is good wisdom for the principle that a party cannot be forced or compelled to sue a party against whom he has no claim.
2. I looked at the argument for and against and the resolution by the Learned trial judge and could not convince myself that at the moment the 2nd and 3rd Respondent had displayed or established their interest genuinely vis-a-is the claim of the Appellant. Having in mind that we cannot go into the substantive issues at this stage clearly declaring what the lower court did as unacceptable. The 2nd and 3rd Respondents cannot show-case their interest in the matter and stated earlier they cannot possible be accessory or desirable parties. GREEN V. GREEN supra p.10 Oputa JSC. Had the lower court followed proper guidance and legal authorities and turned down the request for joinder their position would not have been adversely affected at all. These two Respondents in my view do not qualify a necessary parties. That court therefore wrong joined them on a mere speculation. I think it will not be just and convenient to join them. Their joinder will only cause unnecessary delay in deciding the case one way or the other. This first issue in Appellant’s Brief is answered in negative.
There is no need to go into other issue 2 and 3 formulated by the Appellant. Since issue one responded by the Respondent’s counsel is the most live issue in this appeal this court should not go into other issue less it trampled on the substantive suit to be tried by the lower court as so appropriate time and place. Appeal is therefore allowed and the decision of the lower court is be aside.
Subject to the appeal to the Supreme Court against our decision the parties and their counsel are advised to speedily conduct the trial in this matter.
The Appellant is awarded five thousand naira cost.
Other Citations: (2005)LCN/1704(CA)
