Alhaja Rafatu Ayorinde & Ors V. Alhaja Airat Oni & Anor (2000)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C.

The appellants as plaintiffs at the Lagos High court instituted this action in a representative capacity (as representing themselves and other descendants of late Gbadamosi Fagbuyi Ayorinde otherwise known as Ayande) against the defendants. They claimed as follows:

“(i) A declaration that the Plaintiffs are the owners of the property situate, lying and known as No.67, Docemo Street, Lagos being an Estate of inheritance from their ancestor, Late Gbadamosi Fagbuyi Ayorinde otherwise known as Ayande.

(ii)A declaration that the Plaintiffs are the persons entitled to Certificate of Occupancy in respect of the said land.

(iii) Possession of the property.

(iv)Order of perpetual injunction restraining the defendants whether by themselves their servants and/or Agents from further act of trespass on the land.”

On 3/1/90 the learned trial Judge, Adeyinka, J. entered judgment in favour of the plaintiffs. On defendants’ appeal, the Court of Appeal unanimously reversed the judgment of the trial court and found for the defendants. Dissatisfied with the lower court’s judgment, the appellants have now appealed to this Court by Notice of Appeal dated 22/6/94. From the judgment of the lower court, appellants’ learned counsel, L. B. Lawal-Akapo, Esq. identified five issues for determination, namely:

“(1) Whether or not an action will fail because of NON JOINDER of a Party.

(2)What is the legal effect of a person who had knowledge (whether actual or constructive) or the pendency of a suit the result of which may likely affect his interest and did not apply to be joined as a Party.

(3)Whether judgment can be entered against a person sued in one capacity in a different (sic) capacity other than the capacity in which he was originally sued.

(4)Whether or not the judgment of a Court could stand where the Court did not consider the case or argument put (sic) forward by one Party and make a definite finding one way or the other.

(5)Whether or not a Court can discredit and reject the submission of a party on a major point of appeal and proceed to enter judgment in favour of the same party on the ground that the appeal was not focused or premised on the discredited and rejected submission.”

Respondents’ learned counsel, Messrs Onafowokan & Onafowokan postulated two issues for determination. viz,

(a)whether having regard to the nature and the manner in which the relief sought by the Plaintiffs in the trial court and the findings of the trial court that the Defendants are not the children and grand children of Yisa Giwa neither are they the descendants of Yisa Giwa, the Appellate Court was right in holding that the action was not properly constituted.

(b)whether having regard to the Writ of Summons and the Statement of Claim filed in this suit and the Plaintiffs’ contention throughout the trial that the action was against the children of Yisa Giwa coupled with the findings of the trial court that the Defendants were not the children of Yisa Giwa against whom the Plaintiffs was seeking reliefs, the Appellate court was right in striking the case out for non-joinder of the children and grandchildren of Yisa Giwa.”

At the oral hearing, Mr. Lawal-Akapo, learned appellants’ counsel submitted that non-joinder of a party cannot defeat an action and calls in aid the Supreme Court decision in Onayemi v. Okunbi (1965) All NLR (Reprint) 378. For the respondents. Mrs. Onafowokan emphasised that the question is, was the action properly constituted before the trial court To this question, the Court of Appeal answered in the negative because the defendants/respondents were sued in a representative capacity as children of one Yisa Giwa but it turned out that the defendants/ respondents before the court were the children of one Musa Giwa and the trial court decided to give judgment in their personal capacity. The Court of Appeal held that the trial court was wrong to so hold. She finally submitted that since the plaintiffs/appellants had neither joined nor sued the right parties, the action was bound to fail and to buttress this proposition she called in aid the authorities of Ekpere & ors v. Aforije (1972) 1 All NLR (Pt.1) 220 and Onwunalu v. Osademe(1971) NSCC Vol. 7 13. Some basic facts in relation to the case leading to this appeal may be recapitulated graphically. The parcel of land which comprises the subject-matter of this appeal is situate, lying and otherwise known as No.67 Docemo Street, Lagos. It is common ground that the late Gbadamosi Fagbuyi Ayorinde, otherwise known as Ayande. was the owner of the parcel of land by venue of a Crown Grant dated 7th June. 1971. registered at No.467 page 467, Vol.6 in the lands Registry, Lagos. All the appellants are the descendants of late Gbadamosi Fagbuyi Ayorinde who died intestate and in possession of the property. Yisa Giwa (mistakenly referred to as Musa Giwa. both in the writ and the statement of claim) and his children also lived on the property in the life time of Ayorinde and after his death, with the permission of the appellants and without payment of rent. The children and/or descendants of Yisa Giwa, by an arrangement with the respondents decided to redevelop the property without reference to the appellants who in turn challenged this move by institution of this action. For better understanding of the issue which formed the central theme of the appeal before this Court. I intend to reproduce the relevant excerpt of the judgment of the trial Judge which runs as follows:

“I also refer to my finding that the plaintiffs are entitled to a declaration of title to the land in dispute. It follows that the children of Yisa Giwa became customary tenants to the plaintiffs. Ayorinde did not give the property to Yisa Giwa as blood relation but as a friend. It follows that if Sala Giwa the junior sister to Yisa Giwa shared possession of the property with Yisa Giwa as per the evidence of the 1st defendants witness, Sala Giwa had no interest in the property. The 1st and 2nd defendants being grandchildren of Sala Giwa have no interest in the property in dispute and therefore have no tenancy relationship with the plaintiff. (sic) The children and grandchildren of Yisa Giwa who had customary tenancy relationship with the plaintiffs as their overlord did not join the defendants to defend this action. The 1st and 2nd defendants demolished the original property at No.67 Docemo Street and erected a new building thereon. The 1st defendant witness a child of Yisa Giwa testified that she and her brothers and the children of Sala Giwa rebuilt the property. The 1st defendant witness and the other children of Yisa Giwa ought to have join (sic) as co-defendants to resist the plaintiff’s claim and not to leave the two defendants whom they have allegedly authorised to rebuild the property.

It was wrong of the plaintiffs to sue the two defendants as children and grandchildren of Musa Giwa. Evidence before the Court showed that what the plaintiffs called Musa Giwa was Yisa Giwa. But the two defendants are not children and grandchildren of Yisa Giwa whom the plaintiffs knew had customary tenancy with their late father and grandfather Ayorinde but of Sala Giwa.”

Further down in his judgment, his Lordship said as follows:-

“I held that the plaintiffs are entitled to the relief of possession of the property against the two defendants but not as children and grandchildren of Musa Giwa. The capacity of the defendants is hereby amended accordingly”.

Finally, in the penultimate paragraph to the end of the judgment, this is what his Lordship said:

“I refer to the Afolabi v. Adekunle case, supra and hold that judgment will be given to the plaintiffs in their representative capacity. The defendants (sic) pleading and the evidence showed that the name of the 2nd defendant was FASIU BANIRE and not WASIU BANIRE and I so amend.”

The summary of the excerpts reproduced above may be stared as follows:

(a) There is a finding that Yisa Giwa was a customary tenant of Ayorinde and not tenant at will as asserted by the respondents;

(b) Respondents (as defendants) were not the children and grand children of Yisa Giwa against whom the plaintiffs/appellants alleged they had customary tenancy with their father and grand father;

(c)The court also made a finding that the respondents were not the children and grandchildren of Yisa Giwa but the children and grand children of Sala Giwa;

(d) Evidence before the court showed that the person the plaintiffs called Musa Giwa was Yisa Giwa;

(e) The court found the respondents were not the children and grand children of Yisa Giwa and accordingly it entered judgment against them, and suo motu amended their representative capacity to be in their personal capacity, and

(f) The court also, suo motu, amended the name of 2nd defendant to be Fasiu Banire.

It is necessary to have a close look at the two sets of issues submitted to the Court for the determination of this appeal and see which is more appropriate in the circumstances of this appeal. The crux of this appeal, as it appears to me, neatly raises the question whether the action from which this appeal is predicated was competent in terms of being properly constituted. Clearly, if the action as formulated by the appellants qua plaintiffs was properly constituted, them most of the issues postulated by the appellants may become live issues, whereas, if, on the other hand, the appellants’ action was defectively constituted, then the several issues postulated by them may not avail them in any way whatsoever. It is against this background and in the circumstances of this appeal that I feel obliged to prefer the issues postulated by the respondents. They make for tidier analysis of the real controversy raised in this appeal.

I shall now consider the primary or main issues postulated by the parties that would be sufficient to determine this appeal. For the appellants, I am of the view that issues Nos. 1 and 2 are sufficient in this regard while the only two issues formulated by the respondents, taken together, would be apt to dispose of the controversy in this appeal. I shall now examine the submissions by the two learned counsel against the background of what I have said starting with the appellants’ counsel.

Appellants’ learned counsel Lawal-Akapo, Esq submits that non-joinder of a necessary party will not defeat the action or render the judgment of the court a nullity. Consequently, according to counsel, failure to join the children of Yisa Giwa (also called Musa Giwa) ought not to have led the lower court to the conclusion that the action was not properly constituted as to entitle the court to strike out the claim; counsel calls in aid the decision in Leonard Okoye & Ors v. Nigerian Construction & Furniture Co. Ltd. & Ors (1991) 6 NWLR (Pt.199) 501 at 512. Continuing, learned counsel on his Issue No.2 and as an extension of the submission in his Issue No.1, further submits that where a person who has a vested interest or right on a matter and has knowledge of the pendency of a suit in respect thereof, and which may likely affect his interest, he must of necessity apply to be joined in the proceedings, and where he fails to do so he would be bound by the outcome of the suit. Counsel referred to the testimony of 1st DW that the children of Yisa (Musa) Giwa were aware of the pendency of the suit in relation to the land in dispute and failed to apply to be joined. The consequence of their indifference is that they are bound by the result of the suit and relied on the authorities of Green v. Green (1987) 3 NWLR (Pt.61) 480; (1987) NSCC Vol.18 P. 1115; Ekpoke v. Usilo (1978) NSCC 413 at 414 and Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 13 NSCC 477 at 478.

Responding to the above submissions, Mrs. Onafowokan, learned respondents’ counsel points out that from the outset of the trial of this case, the appellants as plaintiffs made it clear, both from their pleadings and evidence, that one Yisa Giwa was the customary tenant of their late father and that they were seeking their various reliefs, in particular, an order for injunction, against the children and grand children of Yisa Giwa. She also observed that one of the findings of the trial court was that the respondents were not the children and grand children of Yisa Giwa but those of one Sala Giwa. She then submits that customary tenancy of Yisa Giwa should first be determined before an order of injunction can be made. She further submits that since the learned trial Judge found that the 1st and 2nd defendants being grand children of Sala Giwa have no tenancy relationship with the plaintiffs because the tenancy relationship was between their (plaintiffs’) father and Yisa Giwa, it follows that the persons whose customary tenancy had to be determined were not made a party to the suit. The granting of an order of injunction, in effect, means the determination of the tenancy of the children and .grand children of Yisa Giwa without making them a party to the suit and thereby denied them the opportunity of being heard. She further submits that to do so is against the principle of audi alterem partem. In other words, she submits that since the plaintiffs did not join the persons against whom they were seeking relief, the action was not properly constituted and ought to have been struck out, relying on the same authorities of Okoye v. Nigerian Construction & Furniture Co. Ltd. (supra) and Ekpere & ors v. Aforije (1972) I All NLR (Pt.1) 220.

Having closely examined the submissions of learned counsel for the parties, the pleadings and evidence led at the trial, as well as the decision of the lower court reproduced his Lordship’s observation in this regard, I wish, if only by way of emphasis, to reproduce it again in this judgment. Said he:

“It was wrong of the plaintiffs to sue the two defendants as children and grand children of Musa Giwa, Evidence before the court showed what the plaintiffs called Musa Giwa was Yisa Giwa. But the two defendants are not children and grand children of Yisa Giwa.”

For all intents and purposes, it follows that the two defendants on record, having been found not to be children and grand children of Yisa Giwa, ought, in all honesty, to have been struck out, leaving the position of defendant or defendants wholly void. If there is no competent defendant on record, before the case went to trial and throughout the trial, certainly the action in respect thereof would be struck out on the ground that it is improperly constituted. Any thing to the contrary will be absurd and unacceptable.

The circumstances of the case in hand may be likened to those in the case of Ekpere & ors v. Aforije & ors (1972) I All NLR(Pt.1 )220 which learned counsel for the respondents cited and relied on. Here, the plaintiffs sought a declaration as representatives of the Mosogan Community of Jesse Clan which in effect meant that the Jesse Clan had no interest in the land in dispute the said Jesse Clan not having been made a defendant in the action through appropriate representation. Delivering the judgment of the Supreme Court, Lewis, JSC at p.228:

“Now as to Chief Williams’ first point, as we have already indicated, in our view it was absolutely clear both on the claim as formulated in the writ and in the Statement of Claim that the plaintiffs were seeking to obtain declarations that the Jesse Clan as such, had no interest in the land in dispute as it was Mosogan Village Community land and had no right accordingly to deal with the land on behalf of the Jesse Clan through its representatives when they made the lease (Exhibit JU1) and that the lease should therefore be declared null and void. That being so we do not understand why the plaintiffs saw fit when bringing the action, not to make the Jesse Clan through appropriate representation a defendant to the action.”

By this, the Supreme Court upheld the contention of Chief Williams that the action was entirely wrongly constituted as the relief sought was against the Jesse Clan yet the Jesse Clan as such was never made a party to the action.’ In the result, the court ordered that the action be struck out with costs.

Learned counsel for the appellants had, inter alia, submitted that where a necessary party to an action, for one reason or the other, was not joined, the non joinder will not render the judgment a nullity. This is a correct statement of the law. In my opinion, failure to join a necessary party in an action is a procedural irregularity which does not affect the competence or jurisdiction of the court to entertain the matter before it. But where the irregularity leads to injustice or unfairness to the opposing party, it may lead to setting aside the judgment on appeal. It is pertinent to emphasise the fact that failure to join the descendants of Yisa Giwa in the action leading to this appeal did not render the judgment a nullity on the ground of lack of jurisdiction.

For completeness, it is relevant to note that counsel for both parties cited and called in aid the relatively recent decision of this Court in Okoye v. Nigerian Construction and Furniture Company Ltd. (supra) as it relates to the various options open to an appellate court where it reaches the conclusion that an action is improperly constituted because those who would have been parties were not made and the case proceeded to trial. In the leading judgment, Akpata, J.S.C. identified these options, depending on the facts of each case, as

“1. To remit the case for re-trial and for those who ought to have been joined to be joined;

2. To strike out the action if a re-trial would necessitate extensive and/or complicated amendments to the writ and statement of claim to reflect the joinder;
3. To join for purposes of the appeal the person who ought to have been joined in the trial court; and
4. To hold that the person complaining that he ought to have been joined was not such a necessary party and that the non-joinder would not defeat the cause or matter.”

The circumstances of the case under appeal were rather curious, as earlier observed, in that the learned trial Judge found as a fact that the defendants/respondents were falsely sued as children and grand children of Yisa Giwa and castigated the appellants that they were wrong to have sued the defendants as children and grand children of Yisa Giwa. I am clearly of opinion that in the circumstances of this case two alternatives are open to this Court, namely, either to remit the action for retrial after the proper defendants i.e. true descendants of Yisa Giwa would have been ascertained and then joined as party or to strike out the action on the ground that it was improperly constituted. I would adopt the latter approach as the former may be fraught with further procedural difficulties of embarking on series of amendments of the writ and statement of claim.

In the result, I am clearly of the same view with the Court of Appeal that the crucial issue in this appeal was the fact that the action was improperly constituted. Consequently, the proper order to make in the circumstances, for reasons earlier stated, was an order striking out the case. I so hold. Accordingly, I dismiss this appeal as lacking in merit. I assess and award N10,000.00 costs in favour of the respondents.

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SC.240/1994