Chief Abusi David Green V. Chief Dr. E. T. Dublin Green (1987)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

The main issue and in fact the only issue in this appeal is the appropriate order to make in a case where there was a failure to join as a party to a pending suit, a person ‘who claims to have an interest in the subject-matter of the suit or who may be affected by the result’.

Having said this, I will quickly add that the appeal to this Court is from the judgment of the Court of Appeal. This Court has no jurisdiction to hear an appeal from the judgment of the High Court. Was the Court of Appeal therefore wrong in holding that the trial Court should, on its own findings of fact, have dismissed the Plaintiff/Appellant’s case or should the Court of Appeal have ordered that the case be struck out for reason of non-joinder of parties

The issue of joinder, non-joinder and misjoinder of parties has agitated and has been agitated in the Courts from time to time, and there is no paucity of principles or dicta in this branch of the law. The only difficulty that may arise is the application of those principles and dicta to the facts and circumstances of any particular case. I will in this judgment review some of the existing authorities and I will try to show that there is, or that there ought to be, a difference in the treatment of the issue of joinder or non-joinder in the following instances viz:-

(i) Where a party to an existing and pending suit applies to join another person or other persons 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 intervener or the Court to join. In other words. what will he the legal effect of non-joinder of parties

It is the principle emerging from the cases illustrating the attitude of the Courts to the four categories of cases listed above that I will use in the determination of the question posed by the facts and circumstances of the case now on appeal.

Rules made under Order IV of the High Court Rules Cap 61 of 1963 – Laws of Eastern Nigeria applicable to this case deals with Parties. Joint ground of Suit; Representative actions, Contribution in cases of joint and several demands, Non-joinder, Misjoinder of parties and misjoinder of Suits.

The claims of the Plaintiff/Appellant in the trial Court were as follows:

Claims-

‘(1) The plaintiff is entitled to the Chieftaincy stool of Jeky Green House of Bonny, where upon he was installed on 24th June, 1978, and on 16th December 1978, the said installation was re-affirmed and endorsed by the entire members of the said Jeky Green House.

(2) The defendant who is Chief and Head of Dublin Green House of Bonny aforesaid disturbed and injured the plaintiff in the use and enjoyment of the said stool by wrongfully imposing another claimant to the said stool upon the said House.

(3) The defendant still continues wrongfully to impose the said claimant and to subvert the said Jeky Green House and threatens and intends unless restrained by this Honourable Court to continue the said wrongful act.

(4) N500.00 general damages for loss of use and enjoyment of the said stool.

(5) Injunction to restrain the defendant from continuing the said wrongful act.’

From the above Writ the plaintiff’s complaint is against the defendant and him alone. The plaintiffs cause of action, the crux of the controversy is clearly stated in claim No.2 above – as the disturbance of and injury to the plaintiff’s use and enjoyment of the Jeky House stool. How did the defendant disturb and injure the plaintiff’s alleged right The answer is ‘by wrongfully imposing another claimant to the said stool upon the said House’. It is necessary to do this simple analysis from the onset, in order to keep in view the main dispute, the central issue in controversy, and then the parties to that dispute. This analysis is also necessary to help distinguish (in this case) between ‘proper parties’ or ‘desirable parties’ on the one hand and ‘necessary parties’ on the other hand. It is also important here, to note that it is only if the plaintiff establishes his alleged right that the issue of disturbance of or injury to that right will arise for consideration. Being a Chief of Jeky Green sub-House (from the pleadings) is not the natural right of the Plaintiff. It is rather a right conferred on him by the acts of the main House and the sub House.

After due hearing on relevant evidence,oral and documentary, the learned trial judge Wai-Ogosu, J. found at p. 145 of the record of proceedings;-

Since however the evidence as to the plaintiff having been nominated as a Chief-elect of the Sub-House according to Bonny custom and tradition is not very satisfactory, I cannot declare him as having been duly elected (Italic is mine to emphasize the two processes involved – Nomination and Election).

Having so found, the only logical thing for the trial Court to have done was to dismiss the Plaintiffs claim wholly predicated as it was on his nomination by the Dublin Green Main House and on his subsequent election by the Jeky Green Sub House as the Chief-elect to the stool of Jeky Green House. Paragraphs 6 and 7 of the Plaintiff’s Statement of Claim pleaded the two requirements of nomination and election as follows:-

6. In or about December, 1976, the defendant at a meeting of the members of Dublin Green House at Green’s Iwoma, Bonny, invited a nominee for the vacant stool of Jeky Green House.
7. Thereafter, in or about December 1976, the plaintiff was unanimously elected to the said vacant stool by members of the said Dublin Green House and the defendant was immediately informed in writing by a letter. ….

These two paragraphs pleaded nomination and election as two separate exercises. These two paragraphs constituted the back bone, the foundation of the Plaintiff’s entire case. Remove them, and the Plaintiff’s case will collapse. The Court will surely not strike out a case that has completely collapsed. It will dismiss it. I shall come to this later in this judgment when I consider what order the trial court should have made.

In spite of his finding of fact that the Plaintiff had not proved that he was nominated as Chief-elect of the Sub-House of Jeky Green, the learned trial judge still granted the injunction sought against the defendant and as if that was not enough he, in addition, ordered that recognition of Solomon M.D. Green by the Bonny Council be withdrawn by the Council. He further ordered the Council “to hold a proper enquiry and thereafter order a fresh election the result of which should be remitted to this Court.”

This is not Bonny custom as pleaded by the parties and as testified to by witnesses. Under Bonny custom, as pleaded and proved, the Chief of the Main Dublin Green House and the members of the Jeky Green Sub-House have separate responsibilities in the nomination, election and presentation of a Chief-elect of the Sub House. It is correct and it is conceded on both sides that Jeky Green Sub House was a creation of the Main Dublin Green House. The creator has the right to impose terms and conditions on his creature. The Bonny Council of Chiefs has nothing whatsoever to do with the nomination and/or election of a Chief-elect to the Jeky Green Sub House. Ordering, the Council to hold a proper enquiry and thereafter order a fresh election is at best an order that flies in the face of Bonny custom as pleaded and proved and at worst a travesty of that custom.

Also an order for an injunction cannot be made in vacuo. The aim of an order of injunction is usually to protect an established legal right. If the substantive right had not been established, as in this case, it will be, and it was, very wrong of the learned trial judge to grant the injunction sought against the defendant, Accessorium non ducit sed sequitur suum principale (the accessory right does not lead, but follows its principal).

The principal right to the Jeky Green stool has to be proved first, before the accessory right of injunction can be imposed to protect that principal right. A legal right to the Jeky Green Sub House stool can, from the pleadings and evidence, only be acquired by successful nomination, election and presentation. These processes were not proved in this case as the trial Court found as a fact. Courts do not protect mere chances to the stool. No, they protect rights in and over the stool.

The Defendant understandably aggrieved by this strange judgment appealed to the Court of Appeal Enugu Division. That Court of Appeal by a unanimous verdict allowed the Defendant’s appeal and set aside the judgment and orders of Wai Ogosu, J. of the Port Harcourt Judicial Division of the Rivers State High Court holding:- (See p. 369 of the record).

There was nothing in the Statement of Claim praying that recognition of Solomon M.D. Green be withdrawn by Bonny Chiefs Council. Neither was there one that an inquiry or fresh election be ordered by the trial Court. The respondent went to Court to claim he was the person entitled to the stool of Jeky Green House of Bonny … The Court held that his evidence as to this appointment was not satisfactory and therefore would not declare respondent as having been duly elected. With this finding by the learned trial judge, the crux of the matter is that the plaintiff/respondent had not made out his case and it ought to have been dismissed.

Here the Court of Appeal clearly indicated that the proper order the trial Court would have made in the peculiar circumstances of this case was one of dismissal.

So far so good for the facts and circumstance of this case as it journeyed up to the Court of Appeal. Now the Plaintiff has appealed to this Court not against the judgment of Wai-Ogosu, J. not against the entire judgment of the Court below but only on one subsidiary issue namely:-

Whether the Court of Appeal ought to have ordered that the action be struck out for want of necessary parties.

The short answer to the above question is that it will be contradictory for the Court below which at p. 369 of the record of proceedings observed and held that:-

the plaintiff/respondent has not made out his case and it ought to have been dismissed.

to turn round and strike out the very same case which ought to have been dismissed.

I shall however consider the law as it relates to parties and then apply the principles involved to the facts and circumstances of this case now on appeal. Having not appealed against the entire judgment of the Court below the Appellant is therefore bound by the concurrent findings of the High Court and the Court of Appeal that the Plaintiff/Appellant had not proved his case namely that he was nominated and elected Chief of Jeky Green House. The question for determination will really be – If a plaintiff failed to prove his case before the trial Court what order would that Court makes The obvious answer is -an order for dismissal. I agree that in some exceptional circumstances the trial Court can enter a non-suit. Is this case one of those cases where the proper order should have been a non-suit or an order striking out the suit

Chief Williams S.A.N. for the Appellant argued in his Brief and in his oral submissions to us that:-

In the particular circumstances of this case want of necessary parties had the consequence of depriving the Court of jurisdiction to adjudicate …. In the absence of Jeky Green House of Bonny, Solomon M.D. Green and the Bonny Council of Chiefs the Court of trial lacked jurisdiction to adjudicate on the claims made by the plaintiff in this action.

Chief Williams, S.A.N. relied on our decision in Oloriode v. Oyebi (1984) 1 S.C.N.L.R. 390. Mr. Nwanodi’s contention in his Brief and oral submission was that:-

if… having regard to the manner in which the reliefs claimed by the Appellant were formulated in the High Court it was not necessary for any other party to be joined in the action for a fair and just determination thereof.

Mr. Nwanodi then relied on Ekpere ’26 Ors. v. Aforije ’26 Ors. (1972) 1 All N.L.R. p. 220 and on Oloriode ’26 Ors. v. Oyebi ’26 Ors. (1984) 1 S.C.N.L.R. 390.

I shall now consider what really was decided in these two cases and see if the principles of those decisions (not the dicta) apply to the facts and circumstances of the case now on appeal. In Ekpere’s case supra a subordinate community sued for a declaration that the land in dispute was not part of Jesse clan property but that of the plaintiff exclusively. The Jesse clan itself was not made a party. This Court then held that the individual interests of separate communities which together form a clan are not necessarily the interests of the clan as such, and that where the representatives of one such community sue for a declaration that the clan as such has no interest in the land in dispute, the action is not properly constituted unless the clan itself other than the plaintiff/community is made a defendant. This is so because a part is not equal to a whole and where the interest of the whole conflicts with the interest of the part, the whole should be allowed as defendant to defend its interest against the claims of the part. Chief Williams’ submission, in that case, that the plaintiff’s action was improperly constituted without the Jesse clan being made a party was upheld by this Court. When it came to what will be the appropriate order to make, this Court expressed some anxiety. At p.229 this Court observed .We have however anxiously considered what should be the order of this Court. The point I am making here is that even where this Court or any appellate Court finds that not all parties were before the Court so many orders namely striking out, dismissal, non-suit, retrial, are available to that appellate Court. It is only the surrounding circumstances of each individual case including the way the claims were formulated; whether those persons not joined were merely ‘proper parties’ or ‘desirable parties’ or ‘necessary parties’; the effect of the proposed order on the overall justice of the case etc. that will dictate the appropriate order to be made.

I shall now deal with parties generally and specifically with ‘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. Again 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 whom he has no desire and no intention to sue. Me Cheane v. Gyles (No.2) (1902) 1 Ch.D. 911 at p. 917: see also Dollfus Mieq et Compagnie S.A. v. Bank of England (1950) 2 All. E.R. 605 at p. 608 per Wynn-Parry, J. But when the suit has been filed the trial judge becomes dominus litis and then assumes, under Order IV Rule 5(1) of the High Court Rules, Cap 61 of the Laws of Eastern Nigeria 1963 still operative in the Rivers State, the duty and responsibility to ensure that the proceedings accord with the justice of the case by joining either as plaintiff or defendants all the persons who may be entitled to, or who claim some share or interest in the subject-matter of the suit, or who may be likely to be affected by the results if these had not already been made parties. This joinder by the Court suo motu can be done at any state of the proceedings. Thus in Ezenwa v. Mazeli & 5 Ors. (1955) 15 W.A.C.A. 67 at p. 69 the West African Court of Appeal affirmed and upheld a joinder of parties made by the trial judge after final addresses pending final judgment. The trial Court could easily have joined under Order IV Rule 5(1) above Solomon M.D. Green, Jeky Green House and Bonny Council of Chiefs if it wanted. But it did not join them.

In the case now on appeal the contention of Chief Williams is that the Jeky Green House of Bonny, Solomon M.D. Green and the Bonny Council of Chiefs ought to have been joined. Chief Williams continued:-

‘It would seem that the High Court overlooked the point because all the material witnesses testified before it’.

In other words all those who should have been joined testified as witnesses. This is not quite correct as Solomon Green never testified. Under our laws one reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action. See Amon v. Raphael Tuck ’26 Sons Ltd. (1969) 1 Q.B.D. 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: see In re Lart (1986) 2 Ch. D. 788; Leeds v, Amherst 16 L.J. Ch. 5; Esiaka v. Obiasogwu 14 W.A.C.A. 178; Abuakwa v. Adanse (1957) 3 All E.R. 559. Now if Solomon M.D. Green knew of the Plaintiff’s action, as he was in this case bound to know, and yet was content to stand-by, he is bound by the result. And what is the result of the Plaintiffs action in this case It is that the Plaintiff failed to prove that he was nominated and elected Chief to succeed to the vacant throne of Jeky Green. Solomon M.D. Green will certainly be happy to be bound by such a decision.

Another result of the case now on appeal is the Appeal Court’s decision at p. 369 of the record that not having proved that he was duly elected to succeed the vacant stool of Jeky Green Sub-House, the Plaintiffs’ action should have been dismissed by the trial Court. There is no appeal against this finding of the Court below. Putting it in another way, with that finding still subsisting the present appeal is entirely misconceived as it proceeded on the false assumption that the Court of Appeal made no such order. If it made no such specific order it did make a finding to that effect and the judgment of the Court of Appeal should be read as a whole. Again both Chief Dr. E.T. Dublin Green and the Appellant, by issue estoppel, are bound by this decision that the Plaintiff had not proved his case and that his case be dismissed. How can this Court now make an order for striking out a case which the Court of Appeal said should be dismissed unless it is shown that the Court below was wrong And this can only be done by a proper appeal specifically attacking that finding. There is here no such appeal.

This now leads on to the consideration of the difference between ‘proper parties’, ‘desirable parties’ and ‘necessary parties’. 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 proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable those who have an interest or who may be affected by the result. 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 (1956) 1. W.B. 357; Settlement Corporation v. Hoshschild (No.21) (1959) 1 W.L.R. 1664; Re Vandervills Trust (1971) A.C. 812; Re Vandervelle (1969) 3 All E.R. 497.

A distinction must be drawn between the desirability of making a person a party and the necessity of making him one. In Settlement Corporation supra it was held that joining a person as a party to proceedings did not arise merely because the relief sought in the cause or matter might affect someone who was not a party in respect of his rights at common law or in equity. In Peenok v. Hotel Presidential (1983) 4 N.C.L.R. 122 this Court per Idigbe, J.S.C. and Obaseki, J.S.C. drew the necessary distinction between what it is desirable to do and what it is necessary to do and came to the conclusion that although it was desirable to join the Rivers State Government whose Edicts Nos. 15 and 17 were under attack, it was not necessary to join them before the Court could decide on the claims of the parties before it. Eso, J.S.C. with the greatest respect, stated the law broadly – to join all parties who claim interest in this case or who are likely to be affected by the result of the case before the Court. It was their Edicts that were being declared void and they were entitled to a fair hearing, But the important thing to note about Peenok’s case supra is that notwithstanding the non-joinder of the Rivers State Government, this Court did not strike out the Plaintiffs claims nor did it order a non-suit. It dealt with the claims as they relate to the parties actually before the Court. This is in support of the proposition that in every case of mis-joinder or non-joinder the Court, after commenting on the issue of joinder, should deal with the matter in controversy as far as it relates to the rights and interest of the parties actually before it.

Let me now consider the instances:-

1. where the application to join was made by one of the existing parties;
2. where the application was made by an intervener;
3. where the Court acted suo motu; and
4. where no joinder was made at all.
5. Party to the Action applying for joinder of another Party or Parties:

Byrne & Anor v. Brown Diplock. Third Party (IRR9) 22 Q.B.D. 657 pp. 666-669. This case dealt with the right of a defendant on record applying to add another defendant or other defendants. Upon the expiration of the lease the plaintiffs brought an action against Stanley Brown to recover damages for breach of covenant to repair. Brown thereupon applied for and obtained from the Master an order joining Diplock as a third party. The Master also directed that the question of indemnity as between Diplock and the defendant should be referred to the Official referee. On application by the defendant, the official referee made an order adding the executors of the Will of Margaret Elizabeth Brown as defendants in the action for the purpose’ of determining the question of indemnity. Neither the plaintiffs nor the defendant opposed that order but Diplock did and appealed to the Court of Appeal. The Court of Appeal held that on the facts and surrounding circumstances of this case the official referee was right in exercising his discretion under Order XVI Rule 11 in adding the executors as defendants.

I will here like to emphasise that the judgments of Lord Esher. M. R and Bowen. L.J. in this case must have to be related to the facts and circumstances of the case. One such fact being that there was an application by the defendant on record to add further parties – to add other person as defendants. Bearing in mind the facts and circumstances of the case. I will now refer to the pronouncements by Lord Esher. M.R. and Bowen, L.J.

At page 66, Lord Esher, M.R. observed and rightly too:-

One of the chief objects of the Judicature Acts was to secure that, whenever a Court can see in the transaction brought before it that the rights of one of the parties will or may be so affected, that under the form of law other actions may be brought in respect of that transaction, the Court 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 being brought in should be 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 to adjudicate in one proceeding upon the rights of all the parties before it the transaction here is in respect of a lease and a claim for dilapidations under it. The lease has been in various hands, contracts have been made with regard to it, and 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. The plaintiffs are the original lessors, one of the defendants is an assignee of the term. The proposed new defendants are the executors of the Will of the original lessee. It seems to me obvious that the rights and liabilities of all those parties may be affected by what has been done with respect to the lease and the dilapidations’.

In other words the three sets of defendants namely Brown, Diplock and the executors of the Will of Margaret Elizabeth Brown are the parties to account for the dilapidations and effect necessary repairs to the premises demised. The Plaintiffs therefore have a cause of action against all the three sets of defendants, Inter se the defendant may claim contribution against one another. These related questions can be settled in one action.

The Rules permit the Court to join – (the Court shall have power) in such cases. But what is most important here is that there was an application by one of the parties on record for joinder of more defendants. In the case now on appeal there was no such application. Order IV rule 4 of High Court Rules of Eastern Nigeria makes provision for such joinder of another defendant against whom a defendant on record ‘claims contribution, indemnity, or other remedy or relief’. In the case now on appeal Chief Abusi David Green did not sue Solomon M. D. Green and the Defendant, Chief Dr. E.T. Dublin Green has not claimed and is not claiming any contribution or indemnity against Solomon M.D. Green. He has not even applied to join him (Solomon Green) at all for any other purpose. It is therefore my view that the ratio decidendi and obiter dicta in Byrne & Anor, v. Brown supra and other case of that class will not apply to the case now on appeal.

The case of Amon v. Raphael Tuck ’26 Sons Ltd. (1956) 1 Q.B.D. 357 is an important land mark on joinder of parties. Even then there was, unlike Abusi’s case now on appeal, an application by the defendants on record to add a further defendant. There was also a discussion of what constitutes a person a ‘necessary’ party to an action and the true construction of R.S.C. Order 16 rule 11 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 questions involved in the cause or matter’.

Devlin. J. in this famous case considered and analysed many of the various cases decided before on joinder of parties under Order 16 rule 11 and observed at page 371 of the report:-

‘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 Devlin, J. continued:-

… the person to be joined must be someone 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 correct solution of some questions involved and has thought of some 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 in the action which cannot be effectually and completely settled unless he is a party’. (The italics is mine)

Note: The Court of Appeal Western State (Kester, Oyemade and Eso, JJCA.) in Lajumoke v. Doherty (1969) N.M.L.R. 281 at p. 87 quoted and applied the above dictum of Devlin, J.

Now let me apply Devlin, J’s test to the facts of this case now on appeal. It is not enough to make Solomon M. D. Green a necessary party to show ‘the Plaintiffs’, Abusi Green’s rights and the rights of Solomon M. D. Green ‘are connected with the same subject-matter’ that is to say the Jeky Green Sub-House Stool. But what is the significant difference between this case on appeal and Amon v. Raphael Tuck & Sons Ltd supra It is that Solomon Green never applied to intervene. Therefore the ratio and dicta in Amon v. Raphael Tuck ’26 Sons supra dealing with the question whether or not an intervener should be regarded as a necessary party will not apply to one who did not apply to intervene. Also whether Abusi Green was nominated and elected can be settled without Solomon Green.

2. Where an application for joinder is made by someone who is not a party to the existing suit.

I have considered in Byrne v. Brown supra the position where a party to the action applies to join a further defendant or defendants. Gurtner v. Circuit (1968) 2 Q. B.D. 587 is a good example of an application to join made by someone who was not a party to the original suit. This was an action by a third party against an assured motor-cyclist. The bureau applied to be added as defendants. The bureau had an agreement with the Minister to satisfy unsatisfied judgment debts. In that case the whereabouts of the assured motorcyclist 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. It was in that case held that-

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.S.C. Order 15 rule 6(2) to order the third person to be added as a party … so that all matters in dispute could be effectually and completely determined and adjudicated upon.

On the authorities of all the cases reviewed thus far there is no doubt that Chief Abusi Green or Chief Dr. E.T. Dublin Green or Solomon M.D. Green himself could have applied to join the said Solomon M.D. Green as a party to this action. No such application was ever made. This leads me to the next question:-

What happens when no such application for joinder is made either by the parties themselves or by an intervener The answer seems to be Order IV Rule 5(1) of the High Court Rules of Eastern Nigeria Cap. 61 of 1963 applicable to this case and which stipulates:-

5(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 be likely to be affected by the result, have not been made parties, the Court may … direct that such persons shall be made either plaintiffs or defendants in the suit as the case may be …. and whether he shall have appeared or not, he shall be bound by all the proceedings in the case.

The learned trial judge was well within the law, if, he, having found that Solomon M.D. Green was a person who is also claiming the Jeky Green Stool, adjourned the case 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 W.A.C.A. 67 at p. 69. The learned trial judge, Wai-Ogosu, J., with respect, was thus in serious error when he failed to avail himself of, and exercise the jurisdiction to add parties which he definitely had under Order IV Rule 5(1) above.

Now to the final and most relevant question – What happens where parties who should have been joined under Order IV Rule 5(1) above were not joined, and the case proceeded to judgment with the parties on record as the only parties In other words what is the legal effect of non-joinder of parties

Under R.S.C. (England, 1979) Order 15 r 6:-

1 No cause or matter shall be defeated by reason of the mis-joinder or non-joinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

In other words where there has been a 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 will not be taken as a ground for defeating the action. The above rule is thus designed to save rather than destroy, to cure rather than to kill the action or suit. Failure to join a party will thus under this Order (R.S.C. Order 15 r. 6) not be fatal to the proceeding and the Court may determine the issues or questions so far as those issues or questions relate to and affect the rights and interests of the parties actually before the Court – in this case Chief Abusi Green and Chief E. T. Dublin Green.

This Court in Uku & Ors. v. Okumagba & Ors. (1974) 1 All. N. L. R. G 475 at p. 495 considered, approved and adopted the construction put on the English Order 16 rule II (which is the same as the present Order 15 Rule 6 R.S.C. 1979) and which is also in pari materia with Order VII Rules 9-11 of the High Court of the Mid-Western State (now Bendel State) and held at p.495:-

It seems to us quite plain that without the respondent being joined as a co-defendant, 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….

I will say exactly the same about the case now on appeal. The Court can easily decide whether the Plaintiff is ‘entitled to the Chieftaincy Stool of Jeky Green House of Bonny’ without the joinder or intervention of Solomon M.D. Green. In fact the trial Court decided that question at p.145 of the record when it found that:-

‘Since however the evidence as to the plaintiff having been nominated as a Chief-elect of the Sub-House according to Bonny custom and tradition is not satisfactory. I cannot declare him as having been duly elected’.

This repetition of the Court’s finding and decision has been made to emphasise the point that joinder of Solomon M.D. Green as defendant is now a non-issue. The trial Court appears to have acted under Order 15 rule 6-1 of the 1979 R.S.C. Rules above.

Also Wilmer, J. in Miguel Sanchez ’26 Campania S.L. V. Owners of Result (Nello Simoni Ltd. Third Party) – usually cited in short as ‘The Result’ (1958) Probate 174; (1958) 1 All E.R. 839 at p.179 of the Probate Report and pp. 841/842 of the All England Reports gave a useful guide to the construction and application of R.S.C. Order 16 r 11 (Order 15 Rule 6-1 of the 1979 R.S.C.) as follows:-

The Court should ask itself the following questions:-

1. Is the cause or matter liable 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 plaintiff unless the third party (here Solomon M.D. Green is added as defendant)
3. Is the third party a person who ought to have been joined as a defendant
4. Is the third party a person whose presence before the Court as 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 questions in this case my answers will be:-

1. The cause or matter in this case is not liable to be defeated by the non-joinder of Solomon M.D. Green.
2. It is quite possible for the Court to adjudicate upon the cause or matter and the trial Court had even so adjudicated without the presence of Solomon M. D. Green – See p. 145 of the record of proceedings.
3. No. Solomon M.D. Green need not be joined as a defendant before the plaintiff’s claim can be decided upon.
4. The only claim before the Court is the question- whether or not Abusi Green is entitled to the Chieftaincy Stool of Jeky Green Sub-House according to Bonny custom and tradition. Others may also be equally interested but the claim of each claimant is distinct and separate, though they may relate to the same Chieftaincy Stool. It may be desirable to have all the claims joined to be tried together (either by joinder of parties or by consolidation) to avoid a multiplicity of actions but that is an entirely different thing from saying that each persons 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 referable to the questions involved in each claimants cause or matter. These will relate only to the main and substantial questions and not to collateral and/or subsidiary and/or accessory questions like injunction etc.

The Plaintiff/Appellant’s main and radical claim is for a declaration of title to the Jeky Green Chieftaincy Stool. The Privy Council in Ibeneweke v. Egbuna (1964) 1 W.L.R. 219; Olisa Chukura’s 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 this case the trial Court could go on and did go on without Solomon M. D. Green. He was not therefore a necessary party.

The consensus of judicial opinions in the cases I cited above would seem to be that though Solomon M.D. Green (no doubt a rival Chief to the Plaintiff) is a desirable party to be joined in these proceedings but he was not a necessary party. He was a desirable party because he too has an eye to the Jeky House Chieftaincy but his presence as a party will not be necessary to enable the Court decide the main issue in this case which is whether or not the Plaintiff, Chief Abusi David Green, was (as he pleaded in his paragraphs 6 and 7 of his Statement of Claim) nominated and unanimously elected to the vacant stool of Jeky Green Sub-House by members of the entire Dublin Green Main House including Jeky Green Sub-House.

It is this nomination and election that will confer on the Plaintiff firstly, the right to the declaration he claims and secondly, a right not to have his right to the stool of Jeky Green Sub House disturbed and thirdly, a right to have this accrued right protected by an injunction. Solomon M.D. green need not be a party to enable the Court decides all the above issues. I am therefore inclined to agree with Mr. Nwanodi that Solomon M. D. Green, though a desirable party, was not a necessary party in this case.

Since both the Appellant and the Respondent in their Briefs cited and relied on the Court’s decision and pronouncements on Oloriode’s case supra, I will now examine that decision to find out what it really decided. The facts of that case were as follows:-

There were two consolidated actions in the High Court of Lagos State. In each the claim was for a declaration of title, possession, trespass and injunction. The plaintiffs in the first action instituted their action on behalf of the Agbenaje family but their Statement of Claim showed that the land which they had claimed was never vested in them (i.e. in the Agbenaje family) but in another family altogether, known as the Ladega Oyero family which itself included the descendants of Agbenaje and descendants of Osu Kehinde family which was not a party. The second action was instituted on behalf of the Ogadubu family. Here as in the first action the pleadings of the plaintiffs showed that the land they claimed for the family was never vested in that family, the Ogadubu family, but in the Ajai Odofin family a completely different family made up of the descendants of Ajanaku (one of whom was Ogadubu) and the descendants of Onsegun. It was thus clear that the parties who sued in each of the consolidated actions did not represent the whole of the land owning families.

On the above facts, this Court held that:-

The plaintiffs in each of the consolidated actions had no locus standi to institute the action because all the parties necessary for the invocation of the judicial powers of the Court were not before it and consequently, the Court has no jurisdiction to grant the reliefs in the claims in both suits.

Those were the facts and that was the decision of this Court on those facts.

Now it cannot for a moment be suggested that the facts in the case now on appeal are similar to those in Oloriode v. Oyebi supra. In this case the locus standi of Chief Abusi David Green was never in issue; Solomon M.D. Green is not as it were the whole of which Abusi David Green formed but a part; each (Abusi David Green and Solomon M.D. Green) can make any claims to the Jeky House Stool; and each in his own equal and independent capacity as an integral whole. It will not necessarily need the presence of one for the other to prove that he was nominated and duly elected a Chief of Jeky Green Sub-House by Bonny custom and tradition. It is beyond doubt that if a plaintiffs locus standi to bring his action before the Court is successfully challenged the Court would in turn, have no jurisdiction to adjudicate. If a plaintiff is incompetent to bring the action, the Court, as well, will not be competent to hear an incompetent plaintiff for then his action would not have been brought ‘upon fulfilment of a condition precedent to the exercise of the Court’s jurisdiction Madukolu v. Nkemdilim (1962) 1 All. NL.R. 587 at p. 595. A proper plaintiff should be one who has a right of action, the person who had been wronged. In Ekpere’s case supra the right of action resided in the Jesse clan not in the subordinate community. In Oloriode’s consolidated cases the right of action resided in the bigger family Groups, the Ladega Oyero Family and the Ajai Odofin Family. Any judgment or order affecting their right cannot be given or made in their absence.

I am afraid it will be over-stretching the point to suggest that where a plaintiff has the necessary capacity and locus standi to bring his action and then brings it, that the failure to join a desirable defendant will deprive him of his initial locus standi and then rob the Court of jurisdiction to entertain his action. That cannot be. Chief Williams drew our attention to the dicta of Irikefe, J.S.C. (as he then was) in Oloriode’s case supra at p. 400 and to that of Eso J.S.C. at p. 407 and Uwais, J.S.C. at p. -409. All these state that where the Court has no jurisdiction to adjudicate upon a matter, like the parties before the Court having no locus standi, the proper order is to strike out the action. Uwais, J.S.C. at p. 409 went a bit further to observe:-

From the foregoing it is clear that not all the parties interested in the land in dispute were joined in each of the consolidated actions. To dismiss or grant the claims made would amount to giving judgment against the branches of the families that were not joined in the action. This will undoubtedly cause hardship to the families of Osu Kehinde and Onsegun who have not had the opportunity of contesting the claims. I accordingly agree that the proper order to have been made by the trial Court was to strike out both claims instead of dismissing the appellant’s case and entering judgment in part for the respondents’.

I have on purpose quoted at length the comments and order made by my learned brother Uwais, J .S.C. and his reasons for making the order of striking out. In the peculiar circumstances of Oloriode’s case supra where the real land owning families were not before the Court, justice will dictate that the proper order will be striking out not dismissal.

But it does not then follow that in every case where a party was not joined the action will be struck out rather than dismissed. Peenok’s case supra is a good example. This then means that all the dicta in Oloriode’s case supra to which Chief Williams referred us ought to be read in the light of the peculiar facts and circumstances of that particular case and should not be extended to other cases with different set of facts. These dicta should not be elevated to the status of principles of law binding on all other cases irrespective of their own special and peculiar facts.

There is always that temptation for judges to decide questions of fact in language which appears to lay down rules of law: Morris v. Luton Corporation (1964) K.B. D. 114 as per Lord Greene, M. R. The Court should therefore resist the temptation but where the dicta had been too widely stated, the Court should decline the invitation to treat questions of fact decided in a particular case by importing into them as principles of law, a course of reasoning to be applied in deciding other cases on other set of facts:Tidy v. Battman (1934) 1 K.B. 319 at p. 322 (per Lord Wright).

The fact is that no one case is exactly like another and argumentum a simili valet in lege (Co. Litt 191) – it is when the cases are alike that the argument has a legal force. The facts of Oloriode’s case supra are by no means, similar to the facts of the case now on appeal. Therefore the order of striking out made in that case need not be made in this case.

The final point I will like to make is that it was the Plaintiff/Appellant who brought this action. He ignited the jurisdiction of the Court. Why did he not sue all the parties -(Jeky Green House of Bonny, Solomon M.D. Green and the Bonny Council of Chiefs) – that his learned counsel now claims – should have been joined One of the answers is that a plaintiff is perfectly free and at liberty to sue whom he conceives had injured him and whom therefore he has a cause of action against. He is at liberty to frame his case the way he likes. The plaintiffs grudge was against Chief Dr. E.T. Dublin Green. Why should plaintiff not sue him alone The difficulty in this case is not that Solomon M.D. Green was not added as a party. No, it is not. The plaintiffs difficulty is that he did not prove that he was as he pleaded nominated and unanimously elected to succeed to the vacant stool of Jeky Green Sub House. Joining Solomon Green would not have helped the plaintiff to prove that. When a plaintiff has not proved his case, that case should normally be dismissed as the Court of Appeal held at p.369 of the record Lines 30-33. Striking out the case will have the effect of giving the Plaintiff/Appellant a second bite at the cake thus rewarding him for his incompetence and/or failure in not suing all parties to the dispute. This, the Court should stoutly resist.

In King v. Hoare 13 M’26 W. 494 Baron Parke observed about cases that had gone up to judgment without the proposed joinder of parties:-

….. the cause of action is changed into a matter of record, which is of a higher nature, and the inferior remedy is merged in the higher’: and that the judgment bars it, because it is thereby reduced to a certainty, and the object of the suit attained so far as it can be at that stage, and it would be useless and vexatious to subject the Defendant to another suit for the purpose of attaining the same result.

Here it will be useless and vexatious to strike out the action in order to enable the Plaintiff/Appellant to drag the successful Defendant back to Court. Also in The Duke of Bucclench 1992 Probate 201 Lord Esher, M.R. dealt with joinder of parties under Order XVI rr. 2, 11, 12 and the finality of judgment and held at p. 212:-

It has been argued that the rules do not apply after final judgment. They apply, in my opinion, as long as anything remains to be done in the case. In this case there remains the assessment of damages.

Because of this the Court joined other persons necessary to settle the issue of damages. In this case the striking out order to enable Solomon M.D. Green to be joined will not settle any outstanding issue in Abusi Green’s case which had completely collapsed.

The trial Court, with the greatest respect, made unwarranted orders against persons who were not parties before it. If that judgment was the judgment now appealed against, this Court will definitely, in the interest of justice, order a retrial or a non-suit. That was really the rationale of the judgments in Ekpere supra and Oloriode supra respectively. But the Court of Appeal upset and over-ruled the judgment of the Port Harcourt High Court in this case.

The judgment now appealed against is that of the Court of Appeal. That judgment has not decided anything against Solomon M.D. Green in his absence to justify this Court ordering a non-suit or a retrial to afford the said Solomon M.D. Green the opportunity of being heard. It is correct that a judgment or order made against a person who was not a party to the pending suit should not be allowed to stand. The judgment of the Court of Appeal now appealed against is no such a judgment. Sun Insurance Office Ltd. v. Victoria Ojemuyiwa (1965) N. M. L. R. 451 refers.

In the final result and for all the reasons given above, this appeal fails and the observation of the Court of Appeal that the case be dismissed is upheld. It is hereby ordered that the Plaintiff/Appellants appeal be and is hereby dismissed. For the avoidance of any further doubt the Plaintiff’s original claims before the Port Harcourt High Court are hereby dismissed in their entirety. There will be costs to the Respondent which I assess at N300.00.

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Other Citation: (1987) LCN/2356(SC)