Alhaji Abdulkarim Iyimoga & Ors V. Governor of Plateau State & Ors (1994)

LawGlobal-Hub Lead Judgment Report

ORAH, J.C.A. 

The appellants/applicants by a motion on notice dated the 25th of February, 1994, filed on 1st March, 1994 pursuant to Section 16 Court of Appeal Act, 1976, Order 3 Rule 3(1) of the Court of Appeal Rules, 1981 and Section 33 of the 1979 Constitution, are praying the Honourable Court for the following:-

1. An order joining Alhaji Yahaya Ari Doma (also known as Alhaji Yahaya Ari Attah) as a Respondent in this appeal pending before this Honourable Court.
2. An order amending the Notice of Appeal filed on 29th October, 1993 against the judgment of Uloko C. J., dated 28/10/93 and all other processes filed in consequence thereof by adding the name Alhaji Yahaya Ari Doma as Respondent.

And for such further or other orders as the Honourable Court may deem fit to make in the circumstances.

The application is supported by a 7 (seven) paragraph affidavit sworn to by one Tunde Dania Esqr., a litigation clerk in the Chambers of Messrs Abdulahi Ibrahim & Company, Solicitors to the appellants of No. 27 Ali Akilu Road, Kaduna. The seven (7) Paragraphs affidavit is hereby set out in extenso as follows:-

1. That I am the litigation clerk in the Chambers of Messrs Abdulahi Ibrahim & Company Solicitors to the Appellants/Applicants.
2. That by virtue of my aforesaid position, I am conversant with the facts of this case.
3. That I have the authority of both my employers and the appellants to swear to this affidavit.
4. That I am informed by Mrs. T. Obot, counsel who handled this matter before the trial court of the following facts and I verily believe same to be true:-

(a) That Alhaji Yahaya Ari Doma testified as DW2 in the trial court in Suit No. PLD/J/206/92, PLD/J/211/92 and PLD/J/337/92 as consolidated.

(b) That the Judgment was entered in the lower court on 28/10/93 in favour of the 1st – 8th Respondents herein. A copy of the judgment of the said trial court has been shown to me and is annexed and marked Exhibit ‘A’.

(c) That the applicants on 29/10/93 filed an appeal against the said judgment of 28/10/93. A copy of the Notice of Appeal has been shown to me and is annexed hereto and marked Exhibit ‘B’.

5. That I have been informed by Alhaji Mohammed Rajiab Ogiri the 19th appellant/applicant and one of the kingmakers in Doma of the following facts and I verily believe same to be true:

(a) That following the said judgment of 28/10/93, Alhaji Yahaya Ari Doma (the party proposed to be joined herein) was purportedly selected as a candidate to fill the vacant Andoma stool by 4 out of 7 kingmakers on 30/10/93.

(b) That Alhaji Yahaya Ari Doma is also known as Alhaji Yahaya Ari Attah.

(c) That Alhaji Yahaya Ari Doma has not been installed as the Andoma of Doma and has not yet been presented with the Andoma staff and authority of office.

(d) That his installation and presentation of staff and instrument of office was scheduled for 27/11/93 but postponed for a later date due to the dissolution of the State Executive Council on or about 18th November, 1993.

(e) That a new State Administrator has now been appointed for all the States in the Federation including Plateau State.

(f) That the last Andoma of Doma, Alhaji Aliyu Addua Ode Onawo passed away on 13th June, 1991 and since then the stool of the Andoma of Doma has been vacant.

6. That I have further been informed by Mrs. T. Obot and I verily believe her as follows:-

(a) That following the said appeal filed on 29/10/93, the appellants/applicants filed an application in this Honourable Court dated 15/11/93 praying the Court amongst other things for an order of interlocutory injunction against the respondents including Alhaji Yahaya Ari Doma, the said application is hereby incorporated as part of this affidavit.

(b) That Alhaji Yahaya Ari Doma was not a party to the action in the lower court.

(c) That Alhaji Yahaya Ari Doma is a person interested in the proceedings before this Honourable Court.

(d) That the orders prayed for in the appeal and the said interlocutory application before this Honourable Court would affect the interests of Alhaji Yahaya Ari Doma.

(e) That Alhaji Yahaya Ari Doma is a necessary and interested party in this appeal.

(f) That it is in the interest of all parties if the said Alhaji Yahaya Ari Doma is joined as a party in the appeal.

(g) That it is in the interest of justice to grant this application.

7. That I depose to this affidavit in good faith believing its contents to be true and correct to the best of my knowledge, information and belief and in accordance with the Oaths Act 1963.

Annexed to the affidavit in support of the motion are the following Exhibits:-

(i) Exhibit ‘A’ – is a 32 page certified true copy of the trial Judge, Uloko, C.J. in the three consolidated suits PLD/J/206/92, PLD/J/211/92 and PLD/J/337/92 in which judgment was entered in favour of the 1st-8th respondents (vide paragraph 4(a) and (b) of the affidavit in support of the motion on notice.

(ii) Exhibit ‘B’ – is a copy of the notice of appeal with eight grounds of appeal (vide paragraph 4(c) of the affidavit in support of the motion on notice).

There is a two page, 6 paragraphs Counter-Affidavit dated 21st March, 1994, sworn to and filed on 21st April, 1994 by Abraham Aworinde, a litigation secretary in the office of Messrs Ayodele, Gafar and Company, Solicitors to the 8th respondent (Doma Local Government Council and Alhaji Yahaya Ari Doma – the party sought to be joined). The 6 paragraph affidavit is also hereby set out in extenso as follows:-

1. That I am a litigation secretary in the office of Messrs Ayodele, Gafar and Company, Solicitors to the 8th respondent and the party to be joined as the 9th respondent Alhaji Yahaya Ari Doma, and I have the authority of my employers and that of our clients to depose to this affidavit from facts within my knowledge and information received by me which I verily believe to be true.
2. That I am informed by Alhaji Yahaya Ari Doma, the Andoma of Doma and I verily believe him:

(a) That he testified as DW2 at the trial of this suit before the High Court.

(b) That at no time did the plaintiffs in this suit who are now the appellants apply that he be joined in the suit as a necessary or an interested party at the trial.

(c) That none of the claims by the plaintiffs/appellants at the trial falls within the powers he can exercise.

(d) That none of the orders sought by the appellants before the trial court deals with his position as Andoma of Doma.

(e) That the appellants/applicants have now introduced an Order which was not part of their claim before the trial court to restrain him from carrying out his functions as the Andoma of Doma.

(f) That the stool of Andoma of Doma is no longer vacant as he has been selected as the Andoma of Doma and the Governor of Plateau State has approved his appointment.

(g) That since the approval of his appointment by the Government of Plateau State, he has been carrying out the functions attached to his office and working with the traditional Chiefs and title holders within Doma Community.

3. That I am further informed by Mohammed Gafar Esquire, a Solicitor in our office and I verily believe him:

(a) That none of the claims made by the plaintiffs/appellants in this case before the trial court touches on the rights of Alhaji Yahaya Ari Doma.

(b) That the claims of the plaintiffs/appellants before the trial court can be completely and effectively settled without joining Alhaji Yahaya Ari Doma.

(c) That though the said Alhaji Yahaya Ari Doma may be interested in the outcome of this appeal, his interest will only be obliquely affected.

(d) That the persons whose interest are directly affected are the traditional selectors of Doma.

(e) That the steps which the plaintiffs/appellants sought to prevent the respondents from taking in respect of the selection of Andoma of Doma have now been taken and a new Andoma has been selected.

4. That I am further informed by Alhaji Yahaya Ari Doma and I verily believe him, that his interest in the position of Andoma commenced after the Government of Plateau State had determined who the selectors are.
5. That Alhaji Yahaya Ari Doma the Andoma of Doma, informs me and I verily believe him that his interest both at the panel of Inquiry and at the trial of the suit before the High Court was no more than the general interest of members of the Doma Community to see that justice is done.
6. That I depose to this affidavit sincerely believing the facts deposed to herein by me to be true and correct to the best of my know ledge, information and belief.

There was no further affidavit or any further and better affidavit by the appellants/applicants in reply to the Counter-affidavit of the 8th respondent and Alhaji Yahaya Ari Doma – the 9th party sought to be joined in this appeal.

At the hearing of the motion on notice for the joinder of Alhaji Yahaya Ari Doma as the 9th respondent, before us, Alhaji Abdulahi Ibrahim (S.A.N.) with him O. O. Bello (Mrs.) and later T. S. Obot (Mrs.) appeared for the appellants/applicants, while Olajide Ayodele (S.A.N.) with him, H. N. Fwangehi appeared for the said respondents. The appellants/applicants will hereinafter be referred to as the applicants and Alhaji Yahaya Ari Doma, the person sought to be joined as the respondent.

Upon hearing the motion on notice before us, the Learned Senior Advocate of Nigeria, Alhaji Abdulahi Ibrahim, who moved the motion stated:

This application is brought under the general powers of the court as above stated, praying the court:-

(i) To join one Alhaji Yahaya Ari Doma (also known as Alhaji Yahaya Ari Attah) as a Respondent in the appeal No.CA/J/270/93 pending before this court.

(ii) An order amending the Notice of Appeal filed on 29th October, 1993 against the judgment of Uloko C.J., dated 28/10/93 and all other processes filed in consequence thereof, by adding the name Alhaji Yahaya Ari Doma as Respondent.

And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

The application is supported by a 7(seven) paragraph affidavit. Counsel relies on all the paragraphs of the affidavit and in particular, paragraphs 4, 5 and 6. The learned S.A.N. submited, that this Court has powers to entertain the application, although the 9th respondent was not a party to the action and proceedings in the lower court. By his election on 30/10/93, he had acquired or become interested in the result of the appeal before this Court. He is an interested party because any decision of this court will affect his interest, though he was selected after the judgment. The respondent has admitted, that he will be obliquely or widely affected: See Green v. Green (1987) 3 NWLR (Pt.61) 480 at 495 para. H to 496 paras. (A-B); see also Olujiran v. Oshatoba (1992) 5 NWLR (Pt.241) 326 at p. 335 para D.

The fact that the Respondent was only a witness at the lower court, cannot stop the court from joining him. See Ojo v. Oseni (1987) 4 NWLR (Pt. 66) 622 at p. 633 para C.

On the submission of the learned S.A.N. for the Respondent, that the issue on appeal can be determined without joining the Respondent, the learned S.A.N. for the applicants conceded, “It is rightly argued that the Respondent is not a necessary party and the court can make a pronouncement in this appeal without necessarily joining him”

but that the relief sought if not granted will set aside the ruling/judgment of the lower court and the findings of the Panel of Inquiry; the two actions on which the selection is based.

The learned S.A.N. for the applicants further submitted, that the issue before this Court is –

“Whether the person sought to be joined is a necessary party, because of the consequences of this appeal, so that whatever orders made before or in this appeal will bind him”.

It is submitted, that he cannot be kept out. See In Re Yinka Folawiyo & Ors. v. Odeleye (1991) 7 NWLR (Pt. 202) 237 at p. 244 paras (E-G); Busari v. Oseni (1992) 4 NWLR (Pt 237) 557 at p. 587 (E-H). It is submitted, that these two cases should set the thinking of this Court.

If the respondent is joined, all that will be put to rest once and for all. See Osuninde v. Ajamogun (1992) 6 NWLR (Pt.246) 156 at p. 170 (G) and p. 171 (C – D). Finally, the learned S.A.N. for the applicants urged the Court to join the Respondent as co-respondent and amend all processes of court accordingly. In reply, Olajide Ayodele S.A.N. for the Respondents in a precise submission in line with the Respondent’s counter affidavit, submitted and said:-

My Lords, we oppose the application. The kernel of the matter is, the concession made by applicant’s counsel my Senior, when at the end of the address, he conceded, that,-

‘the issue before this Court can be effectually and completely determined without the Respondent being joined, he is not a necessary party’.

Mr. Ayodele S.A.N., submitted that, this is one such case that can be effectually and completely determined without joining the Respondent. He referred to paragraph 4(b) of the affidavit in support of the motion to which the judgment of the lower court appealed against is annexed as Exhibit A. From pp. 2-5 of the said judgment, the learned trial Chief Judge, set out in extenso, the claims by the plaintiffs who are the present appellants. The said claims deal with the powers of the Panel of Inquiry, the Governor and indeed, the Constitution of the Selection of an Andoma. None of the claims deals with the position of an Andoma select, because, at the time, there was no Andoma select which is now the position. The applicants are saying, that this court should in retrospect say, that the method of selection is wrong. It is submitted, that this cannot be so, because, the powers of this court are Constitutional and statutory. This court has only appellate powers and no original jurisdiction. What the applicants can do and have indeed done, is to commence a parallel action in court, that the selection of the Respondent is a nullity see, A.-G., Anambra State & ors. v. Robert Okafor (1992) 2 NWLR (Pt. 224) 396 particularly at pp. 416-418 and 429-430; at p.417 -418 where it was held that approval is recognition. It is submitted, that if a person selected is approved, he is recognised.

It is submitted, that the issue of recognition is not before this court. This being so, the court cannot join the Respondent. The Constitutional power of the court to join a party is provided by section 221 (2) of the 1979 Constitution of Nigeria. Under the section, only “a party interested”, can apply to be joined. In the instant case, the reverse is the case, contrary to the Constitutional power vested in the Court of Appeal by virtue of the said section.

On the issue of joinder of an unwilling party, the learned S.A.N. cited the case of Ede v. Ogenye (1988) 5 NWLR (Pt. 93) 189 at p. 203, and submitted that the Respondent has shown no interest and has not sought to be joined. With respect, this court cannot therefore join the Respondent.

It is further submitted, that the case which the applicants took to the court below is as to:-

‘the question of the Constitution of the body of the Selectors for the post of Andoma’.

The party sought to be joined is not a selector, though, he is now occupying the position filled as a result of the selection in respect of which, his interest is oblique not patent. His interest is like the general interest of all other persons within Doma Community. He cannot say, that he is not interested but only obliquely.

As to the question whether his selection will be a nullity, it has been submitted, the applicants have or ought to have started another action.

On the test of who is an interested party, who should be joined, Mr. Ayodele S.A.N. cited the case of Green v. Green (NSCC Vol. 18) 1115 at pp.1125-1127, at p.1125; (1987) 3 NWLR (Pt.61) 480. As to what makes a person a necessary party, he submitted, that the issue in this case can be effectually and completely settled without the Respondent being made a party. He urged the Court not to grant the order sought to add the Respondent, to bring him into the fora of a contest in which he is an unwilling party. If the court grants the order sought, it will be reversing the Constitutional powers vested in the Court of Appeal in Section 221 (2) of the 1979 Constitution. For the aforementioned reasons, the court is urged to refuse the application.

Abdulahi S.A.N. for the applicants replied and without my repeating the points already made in his main address, stated as follows:-

(i) That the Respondent’s contention, that the claims before the lower court do not touch the stool of Andoma is not correct: See pp 3-5 of Exhibit A attached to the applicant’s affidavit, particularly paragraph 5 at p. 3 and para C (i), (ii) and (iii) at p.5. It is submitted that the stool which the Respondent is about to assume was in issue before the lower court.

(ii) That this court has the powers of the High Court. The High Court has the power to join a party where it is necessary and useful for the determination of an action.

(iii) He urged the court to discountenance that the appellants/applicants or any other person has taken the Respondent to court in a parallel suit. It is not a fact before this court: See Section 6(a) of the 1979 Constitution of Nigeria.

He further urged the court, to join the Respondent so that the matter be effectually and completely determined.

I have very carefully set out in extenso, the respective affidavit evidence, both for the applicants and the Respondent, the submissions of the learned S.A.N. for the applicants, which I have in particular substantially summarised, and that of the learned S.A.N. for the Respondent in this motion.

It is common ground as per the affidavit and counter-Affidavit evidence of the parties that:-

(a) The last Andoma of Doma Aliyu Addua Ode Onawo passed away on 13/5/91 and since then the stool of Andoma became vacant.

(b) That the Respondent was not a party in the three consolidated suits at the trial court in which judgment was entered in favour of the 1st to 8th Respondents on 28/10/93. The respondent testified in the said consolidated suits only as DW2.

(c) At the trial of the consolidated suit, the appellants who are now the appellants in the consolidated suit did not apply, that the respondent be joined in the suit as a necessary or interested party.

(d) The plaintiffs at the trial court who are now the appellants filed an appeal on 29/10/93 against the judgment in the consolidated suit of 28/10/93.

(e) The Respondent had already been selected for the vacant Andoma stool by 4 of 7 kingmakers on 30/10/93 (two days after the said judgment).

(f) The stool of Andoma of Doma is no longer vacant as the respondent has been selected as the Andoma of Doma and the Governor of Plateau State has approved his appointment.

(g) The respondent has not been installed the Andoma and has not yet been presented with the Andoma staff and authority of office.

(h) His installation and presentation of staff and instrument of office was scheduled for 27/11/93 but postponed for a later date due to the dissolution of the State Executive Council on or about 18/11/93.

(i) A new State Administrator has now been appointed for all the States in the Federation including Plateau State.

It is apposite to note, that there is no reply to the effect, that the facts therein in the counter affidavit deposed and in particular, paragraphs 2(c), (d), (e) and (g); 3(a), (b) (c) and (d) and 4, 5 and 6 are true and correct. There is not even a single line general traverse/denial, by way of further affidavit in reply, that any of the facts deposed to in the said counter-affidavit is not correct and untrue. Since there was no oral evidence in this application and there was no reason for so doing, the facts deposed to in the counter-affidavit evidence are hereby deemed to have been admitted by the applicants to be true and correct.

With respect and without prejudice to the merits of arguments and submissions of learned S.A.N. for the parties, which I have summarized and will consider fully, the trouble with this application would appear to have its second genesis from this very point and default in not denying, the facts deposed to the counter affidavit. The counter-Affidavit has already been set out in this ruling. There will be no need to repeat it here.

After a thorough and careful study and review of the affidavit evidence for the parties in this application, and the submissions of the learned S.A.N. for the parties, it seems to me, that the issue(s) which arise for determination in this application can be thus formulated:-

“Whether the Court of Appeal has power to join as a co-respondent, a person who was not a party in the proceedings at the trial court as ‘a person having an interest in the matter, of the subject of the appeal’, whether he will be directly affected by the order or that is likely to be made by the court in the proceedings and whether, his presence will be necessary to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter.”

It seems to me, that the above is the right issue and platform on which this application will be duly and effectively considered and determined. It seems to me, that the said issues for determination can be best approached in three perspective by examination and consideration of the following:-

(i) Order 11 Rules 3 and 5(1) and (2) Plateau State of Nigeria High Court (Civil Procedure Rules) 1987;

(ii) The principles emerging from decided authorities, illustrating the attitude of courts on the matter and,

(iii) Section 222(a) of the 1979 Constitution of Nigeria.

I will therefore, use and apply, the principles emerging from the authority of decided cases illustrating the attitude of courts in the determination of the issues posed by the facts and the circumstances of this application.

On joinder of parties at the High Court.

Order 11 Rules 3, 5(1) and (2) Plateau State of Nigeria High Court (Civil Procedure) Rules 1987 applicable, provided for joinder, non-joinder and misjoinder of parties as defendants. Order 11 Rule 3 provides that, all persons may be joined as defendants. Order 11 Rule 5(1) provides for non-joinder and Rule 5(2) for misjoinder.

Order 11 Rule 3 provides as follows:-

“3. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the Defendants as may be found to be liable according to their respective liabilities without any amendment”.

Order 11 Rules 5(1) provides as follows:-

“(1) 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 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 the plaintiffs or Defendants in the suit, as the case may be. In such case the court shall issue a notice to such persons which shall be served in the manner provided by these rules for the service of a writ of summons ……… and on proof of the due service of such notice, the person served whether he shall have appeared or not, shall be bound by all proceedings in the cause.

Provided that a person so served, and failing to appear within time limited by the notice for his appearance, may at any time before judgment in the suit, apply to the court for leave to appear, and such leave may be given upon such terms (if any) as the court shall think fit”.

Order 3 Rule 5(2) provides as follows:

“5(2) The court may, at any stage of the proceedings, on such terms as appear to the court to be just, order that the name or names of any party or parties, whether as plaintiffs or defendants, improperly joined, be struck out”.

It is a common ground in this application, that the respondent now sought to be joined was not joined and not a party at the trial High Court below where he testified as D.W.2. He is now sought to be joined in appeal as a co-respondent by the appellants/applicants by virtue of s.16 Court of Appeal Act, 1976 and Section 33 of the 1979 Constitution.

At this stage, the issue for determination which I have raised in this application becomes pertinent. I now proceed to consider the said issue as already herein-above earlier on stated.

On whether the Court of appeal has power to entertain an application to join as co-respondent, a person who was not a party in the proceedings at the trial court;

It is my view, that the Court of Appeal has inherent power under section 6(6)(a) of the 1979 Constitution to entertain an application to join a person as a party to an appeal who had not taken part in the proceedings at the lower court subject to certain conditions. Joinder of parties is not a matter of course.

A person sought to be joined must be: –

‘A person having an interest in the subject of the appeal. In Re Yinka Folawiyo & Ors. Limited Sangmakinde Akani & Ors. v. Chief (Dr.) A. O. Odeleye (1991) 7 NWLR (Pt. 202) 237 at pp. 237, 238, 239 and 240 (C.A.),the appellant sued the defendants/respondents at the High Court for possession, damages and perpetual injunction in respect of a parcel of land. The claims were dismissed, whereupon they appealed to the Court of Appeal. Pending the hearing of the appeal, the appellants brought an application for Interim Injunction which was dismissed by the trial court. They then brought a similar application before the Court of Appeal. Before the application could be heard, the applicant brought an application to be joined as a co-respondent to the appeal. He claimed to be the Tenant of the defendants/respondents He was in actual physical occupation of the land in dispute and stood to suffer severe financial losses, if an order of injunction sought by the appellants was granted against the defendants/respondents who were his landlord (Italics mine).

The court allowed the TENANT on his application to be joined as a co-respondent to the appeal even though he was not a party in the trial court. It is therefore pertinent, that,-

A person who was never a party to the proceedings at the trial court may be granted leave to RESPOND to the appeal by the Court of Appeal, being “a person having an interest in the matter”, of the subject of the appeal under Section 222(a) of the 1979 Constitution. (Italics mine)

In Re Yinka’s case (supra) the application for joinder was at the instance of the person sought to be joined as a co-respondent. In that case, the court also held that:-

(a) A person will be joined as a party to an action if his presence before the court is necessary to enable the court properly determine the matter before it once for all, or where the person would be bound or is likely to be affected by the result of the decision (p.244 paras G-H).

(b) A person may be joined as a party to an action, if he will be directly, legally or financially affected by an order made or that is likely to be made by the court in the proceedings (p.245 para C). (Italics mine)

(c) The court may join a person as a party to an action where an issue or question arising out of the claim in the suit may also exist between that person and one of the parties to the action (p. 245) paras C-D).No one needs a microscope to see the interest of the tenant in Re: Yinka Folawiyo & Ors Ltd (supra). It was proper for the court to join the tenant as “a person having interest in the matter”, the subject of the appeal so as to protect his possessory right which is different from the landlord’s right. Where the landlord or tenant is already a defendant to an action the other has a right to apply to be joined, and will be joined upon an application to the court. On the meaning of “a person having an interest in a matter under Section 222(a) of the 1979 Constitution, the phrase, ‘a person having an interest in the matter’, of the cause has been interpreted by the Court of Appeal to be synonymous with, ‘A person aggrieved’, meaning –

‘a person who has suffered a legal grievance against whom a decision has been pronounced, which wrongfully deprived him of something or likely to be aggrieved. Such a person clearly includes a privy deriving title from a main party to an action. Funduk Engineering Ltd. v. James Macarthur Ltd. In Re Col. Y.A. Madaki (1990) 4 NWLR (Pt. 143) 266 at pp. 269-270.’

The following are four instances in which a person may be added or joined as a party to an action:-

(i) Where a party to an existing and pending suit applies to join another person/s as parties:

(ii) Where an intervener applies to join an existing suit.

(iii) Where the court itself suo motu joins parties.

(iv) Where there has been a total failure either by the parties or an interveners or the court to join.

Let me consider the four instances.

1. Where the application to join was made by one of the existing parties to join another who is not a party. Byrne & Anor v. Brown Diplock Third Party (1989) 22 QBD 667 pp. 666-669 is a good

example. The case dealt with the right of the defendant, a party on record, applying to join another as co-defendant. The transaction was in respect of a Lease and a claim for dilapidations under it. The proposed new defendants are executors of the will of the original lease. On application, the official Referee made an order adding the executors of the Will-Margaret Elizabeth Brown as defendants in the action for the purposes of determining the question of indemnity. Neither the plaintiffs nor the defendants opposed the order, but Diplock did and appealed to the Q.B.D. which reversed the order of the official Refree. The defendant Stanley Brown further appealed to the Court of Appeal. The Court of Appeal upheld the decision of the Official Refree, saying he was right in the existing circumstances of that case in adding the executors.

In Byrne &Anor v. Brown Diplock, Third Party (supra) Esher M. R. observed and rightly too:

“One of the chief objects of the Judicature Acts was to ensure, that whenever a court can see in the transaction brought before it, that the rights of one of the parties will or may be affected, that under the form of law other actions may be brought in respect of that transaction, the courts shall have power to bring all the parties before it and determine the rights of all in one proceeding. It is not necessary that the evidence in the issue raised by the new parties brought in, should he exactly the same. It is sufficient if the main evidence and the main inquiry will be the same and the court then has power to bring in the new parties, and adjudicate in one proceeding upon the rights of all the parties before it…..it is obvious that there are various persons whose rights and liabilities will be, or may be affected by the determination of the claim for dilapidations. It seems to me obvious that the rights and liabilities of those parties may be affected by what has been done with respect to the lease and the dilapidations”. (Italics mine).

The case of Amon v. Raphael Tuck & Sons Limited (1956) 1 Q.B.D. 357 is an important landmark and a locus classicus on joinder of parties. In that case, there was an application by the defendants on record to add a further defendant. There was also a discussion of what constitutes a “NECESSARY” party to an action and the true construction of Order 6 Rule 11 R.S.C. (England) in particular, the meaning of the words whose Presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the cause or matter.

Delvin J., (as he then was) in Amon & Anor. v. Raphael Tuck & sons Ltd. (supra) at p. 144 of the report said:-

“It is not, on this view enough that the plaintiff’s rights and the rights which the intervener wishes to assert should be connected with the same subject-matter……….and at p.380 he said:………….. The person to be joined must be the same one whose presence is necessary as a party. What makes a person a necessary party? It is not, of course merely that he has relevant evidence to give on some of the questions involved, that would make him a necessary witness. It is not merely that he has an interest in the relevant arguments to advance……That would mean, that on the consideration of a clause in a common law form contract, many parties would claim to be heard…….The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled there must be a question which cannot be effectually and completely settled unless he is a party”.

(Italics mine)

Dealing with parties generally and specifically, it is my view, that a distinction must be drawn between “proper parties”, “desirable parties” and “necessary parties”. In legal proceedings, the parties generally speaking, are the persons whose names appear on the record as plaintiffs or defendants. The distinction between “proper”, “desirable” and “necessary” parties are as follows:-

(i) ‘Proper parties’, are those who, though not interested in the plaintiffs’ claim, are made parties for some good reasons e.g., where an action is brought to RESCIND a contract, any person is a party who was active or constructive.

(ii) ‘Desirable parties’, are those who have an interest or who may be affected by the result.

(iii) “Necessary parties’ are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff: Amon v. Raphael Tuck & Sons Limited (1956) 1 Q.B.D. 357; Settlement Corporation v. Hoshchild (No.2) (1969) 1 WLR 1664.

(2) Where an application for joinder is made by someone who is not a party to the existing suit: Gurtner v. Circuit (1968) 2 Q.B.D. 587 is a good example.

This was an action by a motor-cyclist. The Bureau which has an agreement with the Minister to satisfy unsatisfied judgment debts applied to be joined as a party.

In that case, the whereabouts of the motor-Cyclist was unknown and the name of his insurers was also unknown. The question was, whether the Bureau was a “person whose presence” before the court may be necessary to ensure – that all matters in dispute are effectually and completely adjudicated upon.

Held:-

“Where the determination of an action between two parties would directly affect a third person’s legal rights or his pecuniary interest, the courts had a discretion Under R.SC Order 15 Rule 6(2) to order the 3rd person to be added as a party….so that matters in dispute could be effectually and completely determined and adjudicated upon”.

(3) Where the court itself suo motu joins parties-

A plaintiff who conceives that he has a cause of action against a particular defendant is entitled to pursue his remedy against that defendant only and should not be compelled to proceed against other persons who, he has no desire and no intention to sue. See McCheane v. Gyles (No.2) (1902) 1 Ch.D 911 at p.917 see also Dolfus Mie Q et Companies S. A. v. Bank of England 4 (1956) 2 All ER 605 at p.608 per Wynee-Perry J.

But where the suit has been filed, the trial court becomes Dominus Litis and then assumes, under Order 11 Rule 5(1) Plateau State of Nigeria High Court (Civil Procedure Rules) 1987 applicable to Plateau State, the duty and responsibility to ensure that the proceedings accord with the justice of the case by joining either the plaintiffs or the defendants, all the persons who may be entitled or who claim some share or interest in the subject matter of the suit.

The joinder by the court suo motu can be done at any stage of the proceedings. Thus in Ezenwa v. Mazeli & Ors. (1955) IS WACA 67 at p. 69, WACA affirmed and upheld a joinder of parties made by the trial court after addresses pending final judgment.

Per Dowlin J., (as he then was) in Amon v. Tuck (supra) at p. 380.

Under our law, the reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action. Under our law, also a person whose interest is involved in an action and who knowlingly chose to stand-by and let others fight his battle for him is equally bound by the result in the same way as if he were a party: Esiaka v. Obiasogwu (1952) 14 WACA 178;,Abuakwa v. Adanse (1957) 3 All ER 559. (Italics mine).

4. What happens when no application for joinder is made either by the parties themselves or by an intervener? It seems to me that, Order 11 Rule 5(1) Plateau State of Nigeria High Court (Civil Procedure Rules) 1987 in pari materia with Order IV Rule 5(1) High Court Civil Procedure Rules of Eastern Nigeria Cap 61 of 1963 will apply as In (3) before. In Green v. Green (1987) Vol. 18, 2 NSCC at p.1126; (1987) 3 NWLR (Pt.61) 48, it was held that,-

‘The learned trial Judge was well with, in the law, if having found that Solomon M. D. Green was a person who is also claiming the Jeky Green Stool, adjourned the cause and suo motu joined Solomon M. D. Green as a defendant under Order iv Rule 5(1) above as the trial court did in Ezenwa v. Mazeli & 5 Ors (1955) 15 WACA 67 at p.55.

But what is the legal effect of non-joinder of parties? In order words, what happens when parties who should have been joined under Order 11 of the Plateau State of Nigeria, High Court (Civil Procedure Rules) 1987 were not joined and the case proceeded to judgment with the parties on record?

Under the Rules of Supreme Court 1979, Order 15 Rule 5:-

“(1) No cause or matter shall be defeated by reason of the misjoinder or non-joinder of a party; and the court may in cause or matter determine the issues or questions in dispute so far as they affect the rights and interest of the persons who are parties to the cause or matter.”

Where therefore, there has been non-joinder either by failure of the parties or an intervener to apply for such joinder or failure of the court to join suo motu, this non-joinder is not a ground to defeat the action. The above rule is designed to save not to kill the action or suit.

Failure to join a party will thus under the order (R.S.C. Order 15 Rule 5) not be fatal to the proceeding and the court may determine the issues or questions so far as those relate to and affect the rights and interest of the parties.

The supreme Court of Nigeria in Uku v. Okumagba & Ors. (1974) 1All NLR 475 at p. 495 considered, approved and adopted the construction put on the English Order 16 Rule 11 (which is the same as the present) Order 15 Rule 6, R.S.C. 1979 is pari materia with the provisions of Order 11 Rule 5(1) of Plateau State of Nigeria, High Court (Civil Procedure Rules) 1987.

In Uku v. Okumagba (supra) at p.495, the Nigeria Supreme Court said:

“It seems to us quite plain that without the respondent being joined as co-respondent, the present suit is not liable to be defeated as it is possible for the court to adjudicate upon the cause or matter without the presence of the respondent”.Having set the above premise, it seems to me that on determination of an application for joinder, what the court should look into is, the core of the matter, the real issue which could be drawn from the CLAIM(S), the PLEADINGS and the EVIDENCE. In this application, what is before us are:-

(a) Exhibit A – the Judgment of 28/10/93 by Uloko C.J., which contains the various claims in the consolidated suits; and

(b)The affidavit evidence of the appellants/applicants and the respondent.

The pleadings at the trial court are not before us.

I will therefore, look into the core of the matter, the real issue which could be drawn from the claims and the affidavit evidence of the parties. The affidavit evidence of the parties are already set out in this ruling. The learned trial Chief Judge has in his judgment Exhibit A, aforesaid, set out in extenso, the several claims in the respective three consolidated suits before him.

After a careful study of the various claims, I discovered, that some of the heads of claim were repetitive. I hereby exclude these repetitions, re-arrange and reset out herein together the claims exactly in their very words now as follows:-

(i) A declaration that the Judicial Panel of Inquiry on the vacant stool of Andoma set up by the 1st defendant, when there was a pending matter before the High Court, the Reliefs of which are similar to the terms of reference of the Panel is a usurpation of the Judicial function of the High Court as provided by Section 6 of the 1979 Constitution and therefore unconstitutional, null and void;

(ii) A declaration that the proceedings, reports and recommendations of the said Panel of Inquiry on the vacant stool of Andoma submitted to the 1st defendant on 3/9/92 is unconstitutional, null and void;

(iii) A declaration that the Panel of Inquiry into the Stool of the Andoma of Doma which was inaugurated on 15/6/92 and which sat from 3/8/92 and submitted its report on 3/9/92 lacked jurisdiction to inquire into the issues which are pending before the High Court of Plateau State for determination.

(iv) A declaration that it is not within the constitutional powers of the 1st defendant to change the accepted native law and custom of the people of Doma in the determination of the number of Ruling Houses, the traditional selectors and the method of selection; A declaration that there are only three Ruling Houses/Dynasties to wit:- Odogyo, Asiribi and Odorogya known to the custom and tradition of the three Ruling Houses/Dynasties are eligible to become the Andoma of Doma;

(vi) A declaration that the Legal Notice No. 27 of 1972 contained in the Benue Plateau State of Nigeria Gazette No. 47 Volume 6 of 23/11/72 as promulgated, represent, contain and is in conformity with the native law, customs and tradition of Doma people in the determination of the number of ruling houses and methods for selection and installation of an Andoma of Doma.

The orders sought in the claims in the consolidated suits are also as follows:-

(a) An order restraining the 1st defendant, his servants and/or privies from taking any steps whatsoever by way of deliberating or discussing or issuing any White Paper in respect of the said proceedings, reports and recommendations of the said Judicial Panel on the vacant stool of Andoma of Doma submitted to the 1st defendant on 3/9/92.

(b) A perpetual injunction restraining the defendants, their agents, privies from tampering in any way whatsoever with the said law, as was arrived at with the consent of Royal Houses in Doma after due declaration on, and consideration of native law and custom of Doma.

(c) An order directing the defendants to set in motion with immediate effect the machinery for the selection and installation of a new Andoma of Doma in accordance with the said accepted existing native law and custom of the Doma people contained in Legal Notice No. 27 of 1972.

Suffice it to say from the affidavit evidence in this application and the said Judgment of Uloko C. J., that Exht A, the judgment in the said consolidated suit was delivered on 28/10/93. At the trial court, Alhaji Yahaya Ari Doma the 9th Respondent sought to be joined as co-respondent testified as DW2. He was not a party to the suit and no application was made to join him at the trial court. On 30/10/93, two days after the said judgment, he was selected Andoma of Doma and has been approved by the Governor of Plateau State. He is yet to be installed. Uloko C.J., after a consideration of the case before him, delivered judgment against the appellants and concluded as follows:-

“The sum total of all the above observations is, that the three suits which seek to restrain the first defendant from instituting the Judicial Commission of Inquiry into the vacant Stool of Andoma of Doma or from accepting, acting on or implementing the recommendations of the said judicial Commission of Inquiry are misconceived; they are abuse of Judicial process. Consequently, they are hereby dismissed.”

Dissatisfied with the said Judgment, the appellants/applicants filed Notice of Appeal with 8 grounds of appeal to this court – Exht B annexed to the affidavit in support of their motion. While this appeal is still pending before us and not yet determined, the appellants/applicants brought this application now under consideration praying this court for the following orders aforesaid:-

(1) An order joining the respondent as a respondent in this appeal pending before this Honourable court.

(2) An order amending the Notice of Appeal filed on 29th October, 1993 against the judgment of Uloko C.J., dated 28/10/93 and all other processes filed in consequence thereof, by adding the name Alhaji Yahaya Ari Doma as respondent.

There is yet a 3rd prayer which is by way of incorporation, see para 6(a) of the appellants/applicants’ affidavit in support to wit:-

“(3)6. That I have further been informed by Mrs. T. Obot and I verily believe her as follows:-

‘(a) That following the said appeal filed on 29/10/93, the appellants/applicants filed an application in this Honourable Court dated 15/11/93 praying the court, amongst other things for an order of interlocutory injunction against the respondents including Alhaji Yahaya Ari Doma, the said application is hereby incorporated as part of this affidavit”.

The issue of joinder, non-joinder and misjoinder of parties has been a very vexed question which has agitated the courts from time to time. There is as I have already illustrated in part, no paucity of principles or dicta in this branch of the law. The only difficulty that often arises is the application of those principles and dicta to the facts and circumstances of any particular case.

It is therefore, only the surrounding circumstances of each individual case including the way the claims were formulated; whether those person/s not joined or sought to be joined, were merely proper parties; or “desirable parties”, or “necessary parties”, the effect of the overall justice of the case that will dictate the appropriate order.

In this application, the appellants/applicants are praying this court to add/join Alhaji Yahaya Ari Doma as a respondent in the appeal pending before this court. From the principles and dicta in this branch of the law, the questions which now arise are:

“(i) What makes a person a necessary party?”

(ii) Is Alhaji Yahaya Ari Doma a necessary party?”

The case of Amon & Ors. v. Raphael Tuck & Sons Limited (1956) 1 Q.B.D. 357 is an important landmark and sets the test. In that case, as I have earlier on stated, I hereby repeat there was an application by the defendants on record to add a further defendant. There was also a discussion of what constitutes a “necessary party” to an action and the true construction of Order 16 Rule 11 RSC (England) in particular, the meaning of the word whose presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause of matter.

Devlin J., in Amon v. Raphael Tuck (supra) at p. 124 of the Report said:”

It is not, on this view enough that the plaintiff’s right and the rights which the intervener wishes to assert should be connected with the same subject matter….and at p. 380 he said:…. the person to be joined must be the same one whose presence is necessary as a party. What makes a person a necessary party? It is not of course, merely that he has relevant evidence to give on some of the questions involved, that would only make him a necessary witness. It is not merely that he has an interest in the relevant arguments to advance. That would mean that on the consideration of a clause in a common…..form contract, many parties would claim to be heard…..The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled there must be a question which cannot be effectually and completely settled unless he is a party”. (Italics mine)

In Amon v. Raphael Tuck (supra), the view of Devlin J., comes to this that:- The test whether under the R.SC Order 16 Rule 11 (England) the court had jurisdiction to add as defendant, a person whom the plaintiff did not want to sue was whether the order for which the plaintiff was asking in the action might directly affect the intervener (i.e. the person proposed to be joined as a party) by curtailing the enjoyment of his legal rights”. (See 1956) 1 All ER 273 E-F. (Italics mine).

Later in the judgment Devlin J., observed:-

“Of course, whatever the object, it is the words of the rule that now govern the matter and it is true that the words “all the questions involved in the cause or matter”, are very wide. They are so wide that no one suggests that they can be read with some limitation. The limitation is not something that is left to be settled by the court in its discretion. It is there in the words of the rule, the person to be joined must be someone whose presence is a necessary party…”

The facts in Amon v. Tuck (supra) is not directly the same as the instant case, but Amon v. Raphael Tuck (supra) has clearly set out the applicable principles.

I have stated earlier on in this ruling, that the Supreme Court of Nigeria in Uku & Orsv. Okumagbe & Ors. (1974) 1 All NLR475 atp.495, (in which the case of Miguel Sanchez & Compania S. L. v. Owners of Result (Nello Simon, Ltd, Third Party) (1958) Probate 174, (1958) 1 All E.R. 839 at p. 179 was cited), considered, approved and adopted. The construction put on the English Order 16 Rule 11 (which is the same as the present Order 15Rule 6 R.se. (1979) in pari materia with the provisions of Order 11 Rule 5(1) High Court (Civil Procedure Rules) 1987 of Plateau State of Nigeria.

On the question of interveners as necessary parties, Wilmer J., also in Miguel Sanchez & Compania SL. v. Owners of Result (Nello Simons Ltd, Third, Third Party) usually cited in short as “The Result” (1985) Probate 174 at p. 179; 1 All ER 839 at pp. 841-842; gave a useful guide of Order 16 Rule 11 (Order 15 Rule 6(1) R.SC. (1979) as follows:-

The court should ask itself the following questions:

1. Is the cause or matter likely to be defeated by the non-joinder.
2. Is it possible for the court to adjudicate on the cause of action set up by the plaintiffs unless the 3rd party (in this case Alhaji Yahaya Ari Doma) is added as a defendant.
3. Is the 3rd Party (here the 9th party Alhaji Yahaya Ari Doma) a person who ought to have been joined as a defendant.
4. Is the 3rd party (here the 9th party Alhaji Yahaya Ari Doma) a person whose presence before the court as a defendant will be necessary in order to enable the court effectually and completely to adjudicate on and settle all the questions involved in the cause or matter.Asking the above question in the instant case, my answers will be:-
5. The cause or matter in this case is not liable to be defeated by the non-joinder of Alhaji Yahaya Ari Doma, the respondent sought to be joined.
6. It is quite possible for the court to adjudicate upon the cause or matter…without the presence of the respondent.

Indeed, the learned S.A.N. for the applicants in his main address submitted that the respondent is not a necessary party and at the end of the address further conceded, that Ayodele S.A.N. for the Respondent, rightly argued, that the issue/s before this court can be effectually and completely determined without the respondent being joined.

3. No, Alhaji Yahaya Ari Doma, the respondent sought to be joined need not be joined as a defendant before the plaintiffs’ claims can be decided upon.
4. The plaintiffs’ main and radical claims before the court are declaratory claims that:-

“(a) The competence of the Judicial Panel of Inquiry set up by the 1st respondent on the vacant stool of Andoma, which terms of reference are said to be similar to the reliefs sought in the consolidated suits is a usurpation of the Judicial functions of the High Court and therefore unconstitutional, null and void,

(b) that the proceedings, reports and recommendations of the said Panel to the Andoma stool submitted to the 1st defendant on 30/9/92 is unconstitutional null and void;

(c) that the said Panel which was inaugurated on 15/6/92, sat on 3/8/92 and submitted its report on 3/9/92 lacked jurisdiction to inquire into the issues which are pending before the High Court;

(d) that it is not within the Constitutional powers of the 1st defendant to change the accepted native law and custom of the people of Doma in the determination of the number of Ruling Houses, the traditional selectors and the method of selection;

(e) that there are three Ruling Houses – Odogyo, Asibiri and Odorogyo known to the custom and tradition of the three dynasties, eligible to become Andoma of Doma;

(f) that Legal Notice No. 27 of 1972 contained in Benue Plateau State of Nigeria Gazette No. 47 Vol. 6 of 23/11/72……… represent, contain and is in conformity with the native law, custom and tradition of Doma people in the determination of the number of ruling houses and methods for selection and installation of an Andoma.

And orders restraining –

“(i) The 1st defendant, his servants and privies from taking any steps whatsoever deliberating, discussing, issuing any White Paper in respect of the said proceedings, reports and recommendations of the said Panel on the vacant stool of Andoma submitted to the 1st defendant on 3/9/92.

(ii) A perpetual injunction restraining the defendants, their agents and privies from tampering in anyway whatsoever with the consent of the Royal Houses in Doma…and the native law and custom of Doma.

(iii) An order directing the defendants to set in motion with immediate effect the machinery for the selection and installation of a new Andoma in accordance with the accepted existing native law and custom in Legal Notice No. 27 of 1972”.

It is my view, that the said claims have nothing directly to do with Alhaji Yahaya Ari Doma who became an Andoma select only on 30/10/93, two days after the said judgment now on appeal. His selection has since been approved by the 1st respondent. Indeed his selection was never directly in the contemplation of the appellants. His selection came later in time after the said judgment.

The issue of the selection of Alhaji Yahaya Ari Doma is without question, a distinct and separate claim though it obliquely relates to the stool of Andoma. It is not even similar to the claims before the court. Although, it may be desirable to have all the claims joined to be tried together (either by joinder or by consolidation as in the instant claims) to avoid a multiplicity of actions, but it is an entirely different thing from saying, that each person’s claim cannot be proceeded with alone or cannot be adjudicated upon in the absence of other claimants.

The expression, “all the questions involved in the cause or matter”, can only be referrable to the questions in each claimant’s claim and not collateral and/or subsidiary and/or accessory questions like injunctions etc.The plaintiffs/appellants main and radical claims are declaratory claims to the stool of Andoma of Doma. The Privy Council in Ibeneweka v. Egbunam (1964) 1 WLR 219; Olisa Chukwura’s Privy Council Judgments 941, held that-

“There had never been any unqualified rule of practice that forbade the making of a declaration even when some of the persons interested in the subject-matter of the declaration were not before the court”.

In the instant case, the trial court could go on and did go on without Alhaji Yahaya Ari Doma. He was not therefore a necessary party. In the instant application, there is yet a 3rd prayer, for a fresh/new order of interim injunction against Alhaji Yahaya Ari Doma, the respondent sought to be joined. The decision of the trial lower court, to which the respondent was not a party is against the appellants/applicants. And I wonder, what legal rights or interest the appellants have sought to protect against the respondent or indeed the 8th and 9th respondents?

Having failed in their claims at the trial court, the appellants instead of vigorously pursuing their appeal, now turn round to claim, that Alhaji Yahaya Ari Doma had not been joined as a necessary party in their writ and would want to topedo the findings against them by requesting that he be now joined, with a fresh application for interim injunction against the respondent. A person is entitled to swallow two separate cherries in successive gulps but not take two bites at the same time.

This court has no original but appellate jurisdiction. Section 6(6) of the 1979 Constitution of Nigeria does not confer original jurisdiction on the Court of Appeal. With the greatest respect, the court will not make any unwarranted orders against a person who was not a party in the suit before the trial court. It is correct to say, that a judgment or order made against a person who was not a party to the pending suit will not be allowed to stand: See Sun Insurance Offices Ltd. v. Victoria Ojemuyiwa (1965) NMLR 451.The Judgment of the lower court was against the applicants who have brought a fresh application on a pending appeal before us for interim injunction against the respondent who was not a party in the said writ and who has not yet been joined as a party. The appellants having failed in the court below. have no established legal right to protect against which they are now seeking an interim injunction against the respondent to protect. It is elementary, correct and trite also to say, that the aim of an injunction is to protect an established legal right. The court will grant an injunction to protect an established legal right. See Onia v. Onyiah (1989) 1 NWLR (Pt.99) 514 at p. 536; Green v. Green (1987) 3 NWLR (Pt.61) 480 at p. 482.

This court cannot therefore grant the interim injunction sought against the respondents. Courts of law do not grant injunction to one who has no established legal right to protect. It would amount to making an unwarranted order and in the instant case especially against a person who was not a party in the suit before the trial court. Such an order would be a null and void order made in vacuo. Interlocutory injunctions are not granted as a matter of course. See John Holt Nig. Ltd. v. Holts African Workers Union of Nigeria & Cameroons (1963) I All NLR 379 at p.383; (1963) 2 SCNLR 383; Missini & Ors. v. Balogun & Anor. (1968) 1 All NLR 318.

Where the substantive right has not been established as in the instant case, the court will not grant an injunction against a defendant. An order of interim injunction cannot be made in vacuo. In legal proceedings, the parties generally speaking are the persons whose names appear on the record as plaintiffs or defendants. Having regard to the nature of the complaint before the trial court, I note with respect, that the appellants were the plaintiffs. The wrong if any in the drafting of their claims and the inclusion of the parties was done by them. The plaintiffs knew the persons they were complaining against and sued them only. They did not join the respondent who testified as D.W.2 at the trial court below. It seems to me, that the boat appears to have been doomed and rocked from its construction to finish.

The appellants want to take advantage of their own default. They have created a crisis situation and turned round to plead the crisis in support of their interest. In Kish v. Taylor (1911) I K.B. 625 at p.634 Fletcher Moulton L. J. said:

“A man may not take advantage of his own wrong. He may not plead his own interest as a self-created necessity.”

It is therefore, my considered view that, where a person has deliberately, by sheer laxity or default placed himself in a position of vulnerability , as in the instant case, he has but himself to blame. The misfortune is that of his own making. He cannot complain and can hardly be heard to complain. It is a self-imposed penalty which in the instant case appears to have no remedy and deserves no sympathy.

I have very carefully, thoroughly examined and considered, the affidavit evidence of parties, the plaintiff’s claims in the consolidated suit, the submissions and arguments of the learned S.A.N. for the parties in this application. I have also had generally, an indept examination, consideration and exposition of a number of English decided authorities on this matter; in particular Amon v. Raphael Tuck & Sons Ltd., (supra) as the landmark and foundation on the principles applicable to joinder of parties and the Result (supra) which was cited, considered, approved and adopted by the Supreme Court in Uku v. Okumagba & Ors. (supra).

I will now proceed to consider in summary, the synopsis of the local authorities (cited in the instant case by the learned S.A.N.) for the parties. The principles emerging from these decided cases illustrating the attitude of the courts are the same as the English authorities on the matter.

(1) In Green v. Green (1987) Vol. 18, 2 NSCC 115 at p.116; (1987) 3 NWLR (Pt.61) p. 480 the main issue in the case is, whether or not the plaintiff Chief Abusi David Green was (as he pleaded in his statement of claim paragraphs 6 and 7) nominated and unanimously selected to the vacant stool of Jekey Green House.

The court held that, Though Sclom M.D. Green (no doubt a rival Chief to the plaintiff) is a desirable party to be joined in the proceedings, he was not a necessary party. The court could go on and did go on with the proceedings without joining him. He was therefore not a necessary party.

It was also held in Green v. Green (supra) that:

The only reason which makes a person a necessary party to an action is that he should be bound by the result of the action and the question to be settled there must be a, question in the action which cannot be effectually and completely settled unless he is a party. ((Amon v. Raphael Tuck & Sons Ltd. 1956) 1 QBD 357 at p. 380 per Devlin J.) Under our law also a person whose interest is involved or is in issue in an action and who knowingly chose to stand-by and let others fight his battle for him is equally bound by the result in the same way as if he were a party.

In the instant case, there is no question in the action which cannot be effectually and completely determined unless Alhaji Yahaya Ari Doma is joined. It is quite possible for the court to adjudicate upon the cause or matter without joining him. See Uku v. Okumagba (1974) I All NLR 475.

(2) In Re Yinka Folawiyo & Ors. Sangomakinde Akani & Ors. v. Chief (Dr.) A. O. Odeleye & Ors (1991) 7 NWLR (Pt.202) 237 at pp. 238, 239 and 240 (C.A.), the Court of Appeal held:-

(i) A person who was never a party to the proceedings at the trial court may be granted leave to respond to the appeal by the Court of Appeal, being a “person having an interest in the matter” of the subject of Appeal under section 222(a) of the 1979 Constitution of Nigeria. (p.244) para. E.)

It is noted in Re Yinka’s case (supra) that the applicant, a ‘person having interest in the matter’, the subject of the appeal under section 222(a) of the 1979 Constitution is the applicant himself, willing and seeking leave to be joined as co-respondent though he was never a party to the proceedings at the trial court, as opposed to the instant case, where the applicant is a plaintiff, an existing party to the proceedings at the trial court seeking leave to join a person as a co-respondent o who was never a party at the trial court below.

(ii) A person may be joined as a party to an action if he will be affected directly, legally or financially by any order made or that is likely to be made by the court in the proceedings.

(iii) A person is regarded as “having an interest in the subject-matter of a case so as to be entitled to be joined as a party thereto, if he is aggrieved or has been wrongfully deprived of something or is likely to be affected or aggrieved by a decision of the court.

(iv) A “person having an interest” in a subject-matter so as to entitle him to be joined as a party includes a privy deriving title from a main party to an action.

(v) Where the landlord or tenant is already a defendant to an action, the other has a right to apply to be joined and will be joined upon an application to the court.

(3) In the very important case of Peenok Investment Ltd. v. Hotel Presidential Ltd (1982) 12S.c. I at p. 12which I have myself cited and considered, the issues concerned the validity of:-

(a) The Rivers State Government Edicts Nos 15 and 17.

(b) Gazette Notice dated 26th September, 1973 and

(c) The acquisition of the property of Peenok Investments Ltd. by the Rivers State Government.

were not distinctly raised on the pleadings at the trial of the action. The questions which arose for determination were as follows:-

(i) Ought the plaintiff to have applied to the High Court to join the Rivers State Government as a party before it can properly raise the issues in (a), (b) and (c) above. In other words, whether the action is defeated by non-joinder of the Rivers State Government under the applicable rules of joinder, Order IV Rule 5(1) High Court Civil Procedure Rules of Eastern Nigeria (Cap. 61).

(ii) The validity of the Rivers State Edicts Nos. 15and 17 of 1972 i.e. whether they are void on grounds that they were made in bad faith and also inconsistent with the Constitution of the Federation 1963 as modified by the Decrees of the former Military Government?

The Supreme Court held at pp. 21 to 22:

“The test as to whether there should be joinder of a party in a suit is based on the need to have before the court such parties as would enable it to ‘effectually and completely adjudicate upon and settle all the questions’ in the suit. This was the view expressed by this court in Uku & Ors. v. Okumagba & Ors (1974) 3 S.C. 35 when Udoma J.S.C. at page 60 of the Report stated thus:-

“The respondent is no longer a necessary party in that capacity for the purpose of enabling the court’ effectually and completely to adjudicate upon and settle all the questions’ in the suit. The words in italics are the key words of the provisions of Rule 10(2). Our view in this respect is in accord with the views of the English Courts in their interpretation and application of the particular rule. That was certainly, the view expressed by Devlin J., (as he then was) in Amon v. Raphael Tuck & sons Ltd. (1956) 1 All ER 273, when after a review of a number of authorities, he said at p. 279:

‘Accordingly, this case, in my view really turns on the true construction of the rule, and in particular, the meaning of the words….’ whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions in the cause or matter ‘

The beginning and end of the matter is that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose”.

In Peenok’s case (supra), the Supreme Court held that:-

As the Edicts Nos. 15 and 17 of 1972 were promulgated by the Rivers State Government, it seems beyond reasonable doubt, that the Rivers State Government is a necessary party in the proceedings for the purpose of enabling the court effectually and completely adjudicate upon and settle all the questions in the suit.

With regards to the Constitutionality of the said Edicts, i.e. whether they were void for inconsistency, the court held, that all the facts needed by the court to arrive at a decision, were before the court and the matters which the court is entitled to take judicial notice of, the action should not fail for non-joinder and cited with approval RSC (England) Order 16 Rule 11 which provides thus:-

“No cause or matter is to be defeated by reason of misjoinder or non-joinder of parties, and the court may in every cause or matter deal with the matter in controversy, so far as regards the rights and interests of the parties actually before it.

The court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, order that the names of any parties improperly joined, whether as plaintiffs or defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be joined ” (See Halsbury Laws of England Vol. 30, 3rd Edition or Lord Simonds Edition p. 394 paragraph 735; Miguel Sanchez and Compania S. L. v. Owners of the Result (Nello Simoni Ltd, the Third Party) (1958) 1 All ER 839 at p.179; Uku v. Okumagba & Ors (1974) 1 All NLR 475 at p. 495.

The important thing to note in Peenok’s case is, that the Rivers State Government is a person who claims interest in the case or who is likely to be affected by the result of the case before the court, within the ambit of Sections 213(5) and 222(a) of the 1979 Constitution of Nigeria. It was its Edicts that were being declared void and they were entitled to a fair hearing, nevertheless, and rightly, without joining the Rivers State Government, the court did neither strike out the plaintiff’s claims nor did it order a non-suit. The court could go on and did go on with the proceedings without joining the Rivers State Government even when it was a necessary party. The action did not fail because of non-joinder.

(4) In Chief Johnson Olujitan & 1 Or. v. Deacon J. K. Oshatoba & Ors. (1992) 5 NWLR (Pt. 241) 326 at pp. 337-338 paras. H-A, the Court of Appeal Kaduna Division held:-

A person should not be joined as a defendant against whom there is no claim by the plaintiff.

(5) In Akin Ojo v. Yisa Eyinjimmi Oseni & 1 Or. (1987) 4 NWLR (Pt. 66) 622 at p. 624, the Court of Appeal, Lagos Division in a majority decision allowing the appeal held that:-

(i) The court has jurisdiction to join a person whose presence is necessary for the purpose unless it could be said that unless the appellant was joined as a co-defendant, the claims and counter-claim before the court would be defeated, the court does not have jurisdiction to order the joinder of the appellant.

(ii) Without the joinder of the appellant neither the claim nor the counter-claim was liable to be defeated because of non-joinder.

(iii) The fact that the appellant was called as a witness would not obviate his being joined as a party if the appellant were a necessary party or even a desirable party and the facts brought the matter within the case in which the court has jurisdiction to order a joinder.

(6) In Tunde Osunrinde & Ors. v. Mutairu Togun Ajamogun (1992) 6 NWLR (Pt. 246) 156 at p.170 para. C and p. 171 para. C-D, the Supreme Court unanimously dismissing the appeal held that:-

(i) The reason for seeking to join a particular person as a party to an action is that he should be bound by the result of the action. The question therefore to be settled must be a question in the action that cannot be effectually and completely settled unless he is a party. Uku v. Okumagba & Ors. (1974) 2 SC 35; Oduola v Coker (1981) 5 S. C. 197.

(ii) Whether an order of joinder is made pursuant to an application by the parties or by a court suo motu, the real test is whether the person to be joined will have his interest irreparably prejudiced if an order joining him as a party is not made: Oduola v. Coker (supra).

(iii) If a necessary party is not joined by the plaintiff, the duty is on the defendant to draw the court’s attention to the absence of such party as early as possible so that the trial court might direct the plaintiff to take necessary steps to have him joined as a co-defendant see Onayemi v. Okunubi (1965) 1 All NLR 362; Bashli v. Arikpo (1961) 1 All NLR 161.

(7) In Christopher Ede v. Ogenyi Nwidenyi. In Re Ogbuzuru Ugadu (1988) 5 NWLR (Pt.93) 189 at 191 the Supreme Court held that:-

(i) A person who has shown no interest cannot be joined.

(ii) With respect to the exercise of the right of appeal under Section 213(5) of the 1979 Constitution of Nigeria, the interest contemplated can only be that of those directly not obliquely affected by the adverse decision. It cannot be a general interest which every person has in seeing that justice is done to a party.

In the final analysis, I hold, in the instant case, that the cause or matter is not likely to be defeated and indeed will not be defeated by the non-joinder of Alhaji Yahaya Ari Doma as the 9th Respondent. Where there has been non-joinder either by failure of the parties or an intervener to apply for such ajoinder, the nonjoinder will not be taken as aground to defeat the action. See Order 16 Rule 11 RSC (England) and Order 15 Rule 6 RSC 1979; Uku v. Okumagba & Ors. (1974) 1 All NLR 475 at p. 495. The respondent (Alhaji Yahaya Ari Doma) is not a necessary party who ought to be joined. His presence as a co-defendant is not necessary to enable the court effectually and completely to adjudicate upon and settle all the questions set up by the plaintiffs/appellants/applicants/. It is quite possible for the court to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter without adding the respondent. There is no question in the action which cannot be effectually and completely adjudicated upon and settled unless the respondent is joined.

The beginning and end of the matter is, the court has jurisdiction to join a person whose presence is necessary for the court to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose.

When at the end of the address, the learned, S.A.N. for the applicants conceded, that the presence of the respondent is not necessary for the court to effectually and completely adjudicate upon and settle all the questions set up by the appellants/applicants, that was the end of the matter. In the instant case, the non-joinder of Alhaji Yahaya Ari Doma is not fatal to the instant case. The rule is to save that action not to kill it.

We are therefore most unwilling and unable to bring an unwilling person who has shown no interest into the for a of a contest in which he is not a necessary party, even though the applicants have on their own made the respondent a party in the suit without an order of court. This is wrong. The application ought to have been in Re Alhaji Yahaya Ari Doma.

On the question of finality of the Governor’s recognition of the respondent and whether or not such a recognition is valid, is a matter to be decided at the trial and is wholly unsuitable for resolution on affidavit evidence in an application for joinder of parties and interim injunction. See Chief Ezekiel Anosike & 1 Ors. v. The Governor of Imo State & Ors. (1987) 4 NWLR (Pt.66) 663 at p. 666.

Also, on the question, that the applicants have filed or ought to file a paralled suit against the respondent is not before us. It is neither raised in the affidavit of the applicants nor in the counter-affidavit of the respondent. In the final result and for all the reasons herein above given, this application totally fails. The application is therefore hereby dismissed in its entirety as lacking in merit. I award costs which I assess at N500 (Five Hundred Naira) each in favour of the 8th and 9th Respondents against the applicants.

Application dismissed.

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Other Citations: (1994)LCN/0195(CA)