Akunne Eddy Ononye V. Miss Nneka Odita & Anor (2007)
LawGlobal-Hub Lead Judgment Report
SOTONYE DENTON-WEST, J.C.A.
This is an appeal by the Appellant as 1st Defendant in the lower court against the Ruling of CHINYELU EMEKA KALAJINE ANIGBOGU (J) sitting in an Anambra State High Court delivered on 1/12/2004. The 1st Defendant claimed against the plaintiff now the Respondent as follows:
“1. The Plaintiff/1st Respondent filed an action Suit No. 0/317/2004 against the 1st Defendant/Appellant, against one Nnanyelugo Ononye (for himself and on behalf of Mgbelekeke family) and against others who are the 3rd, 4th and 5th Defendants.
- The 1st Respondent as plaintiff claimed inter alia. “An order of Court compelling the 1st and 2nd Defendants to pay to the plaintiff the sum of N14,950,000.00(Fourteen Million, Nine Hundred and Fifty Thousand Naira only) being balance of the amount due to the plaintiff as one third of the sum of N45 million kola paid by “THE YOUNG SHALL GROW NIGERIA LIMITED”
- The 1st Defendant/Appellant is a principal member of the Mgbelekeke land owning family but has never been a signatory to the family account and family documents.
- The 1st Defendant/Appellant was sued in his personal capacity and the 2nd Defendant now 2nd Respondent was sued as Nnanyelugo John Ononye (For himself and on behalf of Mgbelekeke family) being in a representative capacity thereby representing himself, the appellant and other members of the said Mgbelekeke family.
- By a motion the Appellant filed a motion praying the court for an order striking out the name of the 1st Defendant as a party in this suit having been improperly joined as a defendant in this suit her Mgbelekeke family having been sued through the 2nd Defendant in a representative capacity.”
Upon exchange of pleadings, the matter proceeded to full hearing. At the close of hearing the learned trial judge refused to strike out the name of the Appellant/1st Defendant as a party in his personal capacity though represented by the 2nd Defendant who was sued as representing Mgbelekeke family he hails from, reason being that the 1st Defendant/Appellant’s name was mentioned many times in the statement of claim.
Appellant being dissatisfied with the decision now appeals to this court filing Notice of Appeal containing 2 grounds. However the Appellant and the 2nd Respondent filed and exchanged their briefs of Argument. The 1st Respondent did not file any Brief. By order of court granted on 13/11/06, the appeal was slated for hearing without the 1st Respondent’s brief.
The Appellant in his brief formulated the following one issue for determination as follows:
“Should the Appellant’s name be struck out in suit No. 0/317/2004 because he is being represented by the 2nd Defendant in that suit who was sued as representing the Mgbelekeke family where he hails from or not.”
The 2nd Respondent has submitted one issue for determination as follows:
“Whether in the circumstances and facts of the subject matter in dispute in this case and the different capacities of the parties thereto, the suit could be effectively and effectually determined without the Appellant as a party being personally sued as a defendant.”
The issues for determination raised by the Appellant and 2nd Respondent are the same. I will adopt the issue in the Appellant’s brief of argument for the determination of this appeal.
The Appellant’s main contention is that the 1st Defendant/Respondent is not a proper party in Suit No. 0/317/2004 since he is a native of Onitsha from the Mgbelekeke land owning family and functions as a principal officer of the family in their land office situate at No 17 Mbanugo Street, Onitsha and the 2nd – Respondent is also from Mgbelekeke family and functions as head of the said family.
The Appellant contends that the Plaintiff/1st Respondent knows that both 2nd Respondent and Appellant are members of one and the same Mgbelekeke family. He submits that the 2nd Respondent was sued in a representative capacity.
To buttress the above the learned counsel to the Appellant quoted paragraph 8 of the plaintiffs statement of claim as follows:
“Payment has now been made to the Mgbelekeke family through the 1st and 2nd Defendant who refused and neglected to pay the Plaintiff one third of the amount as agreed by the parties.”
The learned counsel also submits that the action was filed against the 2nd defendant for himself and on behalf of the Mgbelekeke family, a family the 1st Defendant forms part of. The Appellant contends that he was improperly joined and should not be a party in this matter. The learned counsel to the Appellant contends that if the Appellant was wrongly joined then the court lacks jurisdiction to entertain the suit against him.
The Appellant’s Counsel submits that in a representative action, it is not only the named party who is a party in the action, the others who are not named but whom the named party represents are also bound by the suit. He refers the court to Otakpo v. Sumonu (1987) 2 NWLR (Pt. 58) p. 589,at 621, 623, to the effect that since the 2nd Defendant/Respondent has been sued to represent the 1st Defendant/Appellant’s family and the money in issue was collected by the said family the 1st Defendant/Appellant is not a necessary party.
The learned counsel to the Appellant urges the court that the name of the 1st Defendant/Appellant be struck out for the following reasons that:
“in a representative action, it is not only the named party who is a party to the action. No. The others who are not named, but whom the party purports to represent are also parties because they are bound by the result.”That if the named party wins the entire persons he represents reap the fruit of the victory, if he fails they fall with him and must take the consequences. That since the 2nd Defendant represents the 1st Defendant/Appellant and other members of his family it is unnecessary to retain him as a party to the suit. He may be a necessary witness, but not a necessary party.
Indeed, the appellant at best could only be summoned as a witness if need be having been covered as a party via the 2nd respondent who was sued in his personal capacity and also on behalf of the Mgbelekeke family of which the Appellant is a member. Would he not be facing double jeopardy if he has to be sued twice for the same offence? The 1st Respondent who is the plaintiff in this case having sued the 2nd Respondent for himself and on behalf of the Mgbelekeke family had no business proceeding in this action against the appellant.
The Apex Court had this to say relative a plaintiff suing a defendant in a representative capacity in the case of Osagunna v. Mil. Governor Ekiti State (2001) 86 LRCN 1106 at 1135 DFA where IGUH JSC declared:
“It cannot be disputed that where an action is instituted in a representative capacity and/or against persons in a representative capacity, that action is not only by or against the named parties, they are also by and against those the named parties represent.
Consequently, if all the named parties die, the action will naturally subsist on behalf of or against those represented by the deceased named parties but who have not been stated nomine. The position would appear to be the same whether it is an action on trial or on appeal. The case or appeal, as the case may be, subsists after the death of the named plaintiffs or defendants but cannot be prosecuted until living persons from those represented have been substituted for named dead parties. See Obi Okonji and others v. George Njokanma (1989) 4 NWLR (Part 114) 161.
In the same vein, where a plaintiff did not expressly sue in a representative capacity and there had been evidence to show has was so suing (sic), the law in such case is that the court should aim at doing substantial justice and save multiplicity of suits by amending the capacity in which the suit is brought so as to bring it in line with the evidence. It would not matter whether or not an application for such an amendment had been applied for and obtained. See Mba Nta and others v. Ede Anigbo and Another (1972) 5 S.C. 158 at 174 -176, Afolabi and others v. Adekunle and Another (1983) 2 SCNLR 141, Ayeni v. Sowemimo (1982) 5 SC 60. Where, however, the plaintiff made out no case in a representative capacity, such a proceedings cannot be a proper one where an amendment of the writ of summons and/or the Statement of Claim can be made for that, by itself, would not cure the lack of evidence on the issue of representation. See Onwunalu Ndidi and Another v. Osademe (1971) 1 All N.L.R. 14 at 16.”
Therefore it is absurd that the plaintiff/Respondent who has not bothered in this court to defend the appeal on this issue should have sued the appellant twice – first in his personal capacity and secondly also as a member of the Mgbelekeke family, where in evidence it was admitted that appellant is a member of the Mgbelekeke family.
Notwithstanding the action as constituted in the lower court, the appellants’ counsel in this court contends inter alia, that the lower court lacks jurisdiction to try this action because jurisdiction is fundamental and is the anchor leg upon which an action stands. That the issue of jurisdiction is fundamental, is a matter of trite law and where jurisdiction of a court is challenged, that issue must immediately be determined by the court before it embarks on any trial or determination of the action before it. Unless a court is cloaked with jurisdiction, its proceedings are rendered a complete nullity, no matter how well the case was determined. See Madukolu v. Nkemdilim (1962) 1 All NLR 587; Anya v. Iyayi (1993) 7 NWLR (Pt.305) p.290; Iwuagolu v. Azuka (2007) 5 NWLR (Pt.1028) P. 628; Governor of Gongola State v. Tukur (1989) 4 NWLR (Pt.117) P. 592; Okoya v. Santilli (1990) 2 NWLR (Pt.131) p.172.
On the fundamental nature of the issue of capacity of a party to sue as it relates to jurisdiction, Onalaja JCA retired said in the case of Ifedapo Community Bank v. C. & S Church (2006) 6 WRN page 65 at 71 thus:
“I had a preview in draft the lead judgment just handed down by my learned brother Mukthar, J.C.A. which raised in subtle manner the capacity of the of the Respondent, once raised it has to be considered first as it touches and is extrinsic to jurisdiction. Madukolu & Ors v. Nkemdilim (1962) 1 All NLR 587 at 595, (1962) 2 SC NLR 341; Shitta Bey v. AG Federation (1998) 10 NWLR (Pt.570) p.392 SC; Leedo Presidential Motel Ltd. v. B.O.N. Ltd. (1998) 10 NWLR (Pt.570) to page 353 SC; Adetutu v. Okulaja (1998) 5 NWLR (Pt.435).”
The decision by the lower court in the case of Ifedapo Community Bank (supra) is nearly on all fours with this extant action under consideration and the “court of appeal in that case held:
“Any action instituted on behalf of a registered trustees of an Association should be brought under the corporate name by which the trustees were registered, otherwise such an action would not have been properly constituted Tijani Bambe & Ors. v. The Registered Trustees of the Diocese of Ibadan (1966) 1 All NLR 287 at 289 SC Neither members of such a body nor its trustees can be sued in their individual names. See J.O. Nworienta & Ors. v. Augustin Ogu & Ors. ENLR 117. ”
In a representative action, the capacity to sue and be sued had been eloquently treated by the Apex Court in a plethora of cases, and of course because of the fundamental nature of jurisdiction, it could be raised even in the supreme court, and so a trial court should not ignore the essence of the issue of jurisdiction. See Usman Danfodio University vs. Kraus Thompson Organization Ltd.(2001) 15 NWLR (Pt. 736) p. 30.
Therefore from the foregoing and more particularly on the decision of the Supreme Court in the case of Ajayi v. Jolayemi (2001) 87 LRCN p.1786, the Apex Court in considering whether it is necessary to join a party against whom plaintiff has no complaint, identified when it is proper to join a party to an action thus:
“A joinder will be necessary:
(i) if the cause or matter is liable to be defeated by the non-joinder of the third party as a defendant;
(ii) If the third party is a person who ought to have been joined as a defendant so that he may be bound by the result of the trial or his presence before the court as a defendant is necessary in order “to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter. See The Result (1958) Probate 174.
It seems plain to me that the suit was not liable to be Defeated by the non-joinder of the Government of Kwara State as a co-defendant, nor was it a person who ought to have been joined as a defendant in the first instance, nor was it a party whose presence before the court as a defendant was necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. The Court below was therefore right in rejecting the appellants’ contention that the Kwara State Government is a proper or necessary party whose absence is fatal to the proceedings.”
The appellant in this appeal ought not to have been joined as a party in this suit since he is a member of the Mgbelekeke family that have been sued via the head of the family, Nnanyelugo John Ononye, for himself and on behalf of the Mgbelekeke family as 2nd defendant in the suit. Since all individual members of the Mgbelekeke family were not sued in their personal capacity, there is therefore no reason why one member should be singled out to be sued in his personal capacity. Would that member not be subjected to double jeopardy?
However, in line with the above Supreme Court authority on the issue of representative action, find that it would amount to double action to sue the appellant in his personal capacity.
There is no brief filed by the Plaintiff/Respondent. Both counsel for the Appellant and 2nd Defendant/Respondent urged the court to grant the appeal by holding that the suit can be effectively and effectually determined without the Appellant as a party, I therefore resolve the sole issue in the appeal in favour of the appellant and accordingly allow the appeal. I set aside the ruling of the court below and hereby strike out the appellant’s name from the suit before the court below.
In the circumstances of this case there is no order as to costs.
Other Citations: (2007)LCN/2344(CA)
