Chief B.A.M.E. Awani & Ors V. Erejuwa Ii The Olu Of Warri & Ors. (1976)

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ALEXANDER, C.J.N. 

The appellants in this appeal (hereinafter referred to as “the applicants/appellants”) had applied in the High Court of the former Midwestern State (now Bendel State) of Nigeria at Warri Judicial Division for an order allowing them to join and defend Suit No.W/115/1960 for themselves and on behalf of the Abbor-Tosan-Fiyee section of Ekpenede/Ogitsi family of Okere, Warri. Suit No.W/115/1969 was pending in the High Court at the material time. The claim before the High Court, as amended before the date of the application was as follows –

1. A declaration that the first plaintiff is the overlord in accordance with Itsekiri Customary Law of all that piece or parcel of land situate in the New Ode-Itsekiri Layout at Ekurede village, Warri Division within the jurisdiction of this court and measuring about 44.47 acres as shown in survey plan No.T.J.M. 584 attached to the document registered as No.20 at page 20 in Volume 75 of the Land Registry, Benin City, the said OVERLORDSHIP right being now vested in and exercised by the second plaintiffs in accordance with the communal Land Rights (Vesting in Trustees) Law (Cap.24) and the Warri Division (Itsekiri Communal Land) Trust Instrument 1959 and subsequent amendments.
2. A declaration that the purported sale or grant of the land in dispute made by the first defendant to the second defendant on the 10th day of October, 1969, and registered as No.20 at page 20 in volume 75 of the Land Registry, Benin City is NULL AND VOID AB INITIO in accordance with Itsekiri Customary Law.
3. A perpetual injunction to restrain the defendants, their agents, servants and all other persons purporting to claim through them from entering the said land or interfering with plaintiffs’ rights in and over the said land in dispute and in particular from granting leases or other disposition of the same to third parties.”

The plaintiffs, the 1st and 2nd defendants who were originally sued, and the 3rd, 4th and 5th defendants who were later joined in the suit, filed their pleadings in compliance with the orders of the High Court. It was at this stage of the proceeding that the applicants/appellants applied to be joined as defendants. The High Court dismissed the application and the applicants/appellants being dissatisfied and having sought and obtained leave of the High Court, appealed against the decision of the High Court, and filed the following grounds –

“1. The learned trial Judge erred in law in refusing to join the applicants/appellants as co-defendants in the suit.

2. The learned trial Judge misdirected himself regarding the circumstances entitling the court to exercise its discretion against an intervener in his application for a joinder.

GROUNDS OF MISDIRECTION

1. The learned trial Judge did not consider the fact that there was opposition/objection to the original parties before the court prior to 5/11/73 by the interveners and the 3rd, 4th & 5th defendants.
2. The statement of the trial Judge, to writ, I agree with Mr. Rewane that the plaintiffs will be embarrassed if the applicants are joined in that it will occasion further unwarranted and unjustifiable delay in the determination of the plaintiffs’ case.’

The learned trial Judge erred in law when before reaching his decision he failed to consider whether or not the applicants/appellants have right or interest in the subject matter of the action in which they sought to be joined as defendants.”

Learned counsel for the appellants abandoned ground 1, which was accordingly struck out, and argued the remaining grounds 2 and 3. It is pertinent at this stage and necessary for a proper understanding of the issues involved in this appeal to refer to the ruling of the learned Judge which reads as follows:-

“This application is dismissed for the reasons I had already indicated to Mr. Alele. These reasons being that this case has been in court on several occasions and the hearing had to be adjourned from time to time because the defendants have always given one reason or the other to seek adjournment and this has always led to quarrel at the bar between Mr. Rewane and Mr. Unurhoro in particular. This case was fixed for definite hearing two years ago and the 3rd to the 5th defendants applied to join. Result is another delay until now. Over fifteen months ago at least the present applicants knew of the existence of this case. They are all resident in Warri and have been in and out of this particular court at least twenty times since the 3rd to 5th defendants were joined and they did nothing whatsoever. Now this case has been fixed for hearing five days with nothing else before the court by way of work and the applicants have come in to say they wish to be joined the clear intention being to impede the hearing of this case.

Furthermore the applicants have indicated that they do not wish me to do any case in which they are involved and it is my view that since they declared themselves as having no faith in my court they should fight their cases in other courts.

This ruling has not driven them from the seat of justice. They are at liberty to institute an action against the plaintiffs and/or defendants to determine their rights in another court.

I agree with Mr. Rewane that the plaintiffs will be embarrassed if the applicants are joined in that it will occasion further unwarranted and unsuitable delay in the determination of the plaintiffs’ case.

Lancaster Banking Co. v. Cooper 9 Ch.D. 594. Roberts v. Holland (1893) 1 QB 665, Re-Harrison (1891) 2 Ch.340 and Hall v. Heward 32 Ch.D.430 show that the court has a discretion in a joinder of this type and having regard to the delay and embarrassment to the plaintiffs that will be occasioned by this joinder and further to the attempt by the applicants to impede the work of this court. I exercise my discretion against the applicants.”

This trial of the suit proceeded in the High Court and judgment was delivered in favour of the plaintiffs and against the defendants who being dissatisfied appealed to this court. The defendants/appellants did not oppose the appeal of the applicants/appellants against the decision of the High Court to dismiss their interlocutory application to be joined as defendants in Suit No.W/115/1969.

Learned counsel for the plaintiffs/respondents opposed this appeal on a number of grounds and argued that learned counsel for the applicants/appellants pursued embarrassing tactics by introducing in his submissions without leave of the court new particulars about extraneous matters. He submitted that these new particulars were not specified in the grounds of appeal and that this court should not therefore take cognizance of them. He further submitted that the trial Judge had an absolute discretion in the matter which could only be questioned on very serious points and that there was enough on record to justify the ruling. On the contrary, we consider that the arguments of learned counsel for the applicants/appellants were, in the main, fairly and firmly based on the particulars in paragraph 2 of the “grounds of misdirection in ground 2 and on ground 3.

Order 7, rule 10(2) of the High Court (Civil Procedure) Rules in force in the State prescribes that the court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as to the court or a Judge may seem just, order to be joined, whether as plaintiffs or defendants, any parties who ought to have been joined or 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 controversy in the proceedings.

First of all, the learned Judge harped on the considerable delay in disposing of the case and laid the blame for this delay on the shoulders of the applicants/appellants as well as the defendants in the suit. If, as he said in his ruling, the defendants were responsible for a number of adjournments before the application for joinder was made by the applicants/appellants (who were not parties to the suit) the applicants/appellants cannot be rightly blamed for any delay up to that stage. In our opinion, the trial Judge was wrong in speculating, as he did, on the basis of his own personal observations, as regards the reasons for the presence in court of the applicants/appellants or the number of times they were present in court prior to their application to be joined as defendants.

The applicants/appellants were certainly not responsible for the predicament of the learned Judge who found himself with this particular case for hearing for five days, with no other work before the court. He also ascribed to the applicants/ appellants the clear intention of impeding the hearing of the case, without there being any evidence to support this “finding” or the further “finding” that the joinder of the applicants/appellants as defendants would occasion “further unwarranted and unjustifiable delay in the determination of the plaintiffs’ case.”

It is, in our opinion, clear that, in the circumstances, the trial Judge did not exercise his discretion in accordance with the provisions of Order 7, rule 10(2) in order to enable the court effectually and completely to adjudicate upon and settle all the questions in controversy in the suit, but -on entirely extraneous considerations. Further, he did not, as far as the record shows, address his mind, as he ought to have, to the question whether or not the applicants/appellants were making a bona fide claim to a right or interest in the subject-matter of the suit, or to the extent of such right or interest, if any, to enable him to decide whether or not the presence of the applicants/appellants before the court was necessary for the purpose of effectually and completely adjudicating upon and settling all the questions in controversy in regard to the subject-matter of the suit before him.

The solicitor to the plaintiffs/respondents in the application for joinder, Mr.O.N. Rewane, in a counter-affidavit to which he deposed on their behalf stated in paragraph 8 and 9 as follows –

“8. That on the 26th of May, 1972, applicants herein applied to join as defendants in Suit No.W/66/70 instituted by 3rd, 4th and 5th defendants against plaintiffs and other persons and the said applicants herein were joined.

9. That the land in dispute in this suit is a part of the land in dispute in the said Suit No.W/66/70 and plaintiffs in the said suit were ordered to serve amended writ and amended Statement of Claim on the said applicants herein.”

In our opinion, the facts stated in paragraphs 8 and 9 amounted to a clear admission on the part of the plaintiffs/respondents that the applicants/appellants are making a bona fide claim to a right or interest in the land in dispute in Suit No.W/115/69, of which the order of the court in Suit No.W/66/70 took cognizance. The applicants/appellants in the affidavit in support of their application had deposed that the land in dispute belongs to them and has been the subject-matter of litigation in Suit No.W/66/70 in which they have been involved.

In Solanke v. Ajibola (1969) 1 NMLR 253, this court held that an appeal from a decision made in the exercise of a trial Judge’s discretion can be entertained when, in exercising his discretion, the trial Judge has acted under a mistake of law, or in disregard of principle, or under a misapprehension of the facts, or has taken into account irrelevant matters, or on the ground that injustice could arise.

In the circumstances of this appeal we held that the learned Judge erred in the exercise of his discretion to grant or refuse the application for joinder, by failing to give proper consideration to the provisions of Order 7, rule 10(2) of the High Court (Civil Procedure) Rules by taking into account irrelevant matters, and also by disregarding well-recognised and well-established principle in depriving the applicants/appellants of their right to defend whatever right or interest, if any, they may have in the land in dispute in Suit No. W/115/69, and that the cumulative effect of these errors, and the consequent dismissal of the application would, if not remedied by this court, work hardship and injustice on the applicants/appellants.

This appeal was accordingly allowed and consequential orders made as set out in the judgment of the court delivered on April 21, 1976.

SC.425/74