Chief Dr. A. O. Odeleye & Ors. V. Chief Afolabi Adepegba & Ors (2000)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
This is an appeal against the ruling of the High Court of Justice Oyo State, in the Oyo Judicial Division-Coram Justice T.A.A. Ayorinde in an application for joinder delivered on the 15th of July,1991.
In the writ of summons issued out in the Oyo Judicial Division of the High Court of Oyo State on the 5th of February, 1991. The action in suit No. HOY/11/91 was commenced by Chief Afolabi Ajibade (Baale Ahora Ojomgbodu); David Ajibade Adeniyi; Samuel Oladejo Adeyemo and Olaniyi Adeoye for themselves and on behalf of other members of Ojomgbodu family as plaintiffs, and Chief (Dr.) A. O. Odeleye, Sangomakinde Akanni; Alhaji Lasisi Adejumo; Lajire Oke; Yekini Oyemakin, Iyiola Oyebanji; Madam Ayannihun Ayansola; Chief Inaolaji Aiyelagbe; Tafa Adebayo; and Aborade Alonge as defendants.
A claim of four reliefs was originally endorsed on this writ of summons on 8/2/91. By order of court on 5/3/91, the writ and statement of claim were amended whereupon three reliefs were added. Following the accepted fundamental rule of our civil procedure that averment in the statement of claim supersedes the particulars of the writ of summons, and that the claims of the plaintiffs are discernable from the averments reflected in some paragraphs of the statement of claim. see Lahan v. Lajoyetan (1972) 6 SC 190; Atoyebi v. Bello (1997) 11 NWLR (Pt.52S) page 265; Military Administrator, Delta State v. Olu of Warri (1997) 7 NWLR (Pt.513) page 430; Ajayi v. Military Administrator, Ondo State (1997) 5 NWLR (Pt.504) page 237 SC.
Plaintiffs averred and pleaded in their statement of claim as follows in paragraph 26:-
Paragraph 26. Whereupon the plaintiffs claim against the defendants jointly and severally as follows:
A declaration that 2nd, 3rd, 5th, 9th and 10th defendants are customary tenants of the plaintiffs in respect of their individual holdings within the land settled upon by Adegbayi who was the plaintiffs’ Ancestor at Ojomgbodu settlement Oyo in the Oyo State of Nigeria which land is more particularly described and delineated and edged Red separately in the composite plan to be filed later in this action.
(2) An order of injunction restraining the 2nd, 3rd, 8th, 9th and 10th defendants from going beyond the respective area of land granted to them as customary tenants of the plaintiffs within the land settled upon by Adegbayi at Ojomgbodu Oyo, Oyo State of Nigeria. More particularly described and edged ‘Red’ in a composite plan to be filed later in this action and from trespassing on the area of land belonging to the plaintiffs or granted to other customary tenants of the plaintiffs within the land in dispute.
(3) An order that the 2nd, 8th and 10th defendants as customary tenants of the plaintiffs on the land in dispute should continue to pay their respective customary tolls to the plaintiffs to avoid forfeiture of their customary tenancies.
(4) The sum of One Hundred Thousand Naira (N100,000) being general damages for the breach of the covenants of the defendants as Customary Tenants of the plaintiffs in respect of the area verged red in a plan to be filed in the action.
(5) Forfeiture of the Customary Tenancies of the 3rd and 9th defendants in respect of their holdings as customary tenants of the plaintiffs within the land settled upon by Adegbayi at Ojomgbadu Oyo State of Nigeria which land is more particularly described and edged Green on a composite plan to be filed later in this action.
(6) The sum of Four Hundred Naira (N400) being general damages for the trespass committed by the 1st, 4th, 5th, 6th and 7th defendants on the land settled upon by the ancestors of the plaintiffs at Ojomgbodu, Oyo, Oyo State of Nigeria more particularly described and edged Red on a composite plan to be filed later in this action.
(7) Perpetual injunction restraining the 1st, 4th, 5th, 6th and 7th defendants by themselves, their agents, servants and persons claiming through them from committing any further acts of trespass on the said.”
The defendants before the lower court fall into two categories according to the foregoing claim for the plaintiffs the 2nd, 3rd, 8th, 9th and 10th defendants who were alleged customary tenants of the plaintiffs within the land of the plaintiffs’ family at Ojomgbodu Oyo, and the 1st, 4th, 5th and 6th and 7th defendants who were trespassers on the land belonging to the plaintiffs’ family. The plaintiffs’ case was that their ancestor called Adegbayi settled upon a vast area of land including the land in dispute several years ago. The defendants and members of their families were their customary tenants who refused to pay while the 1st, 4th, 5th, 6th and 7th defendants were trespassers who came on the land through the other defendants as an outcome of a court action. On the 20th day of May, 1991, H.R.H. Alayeluwa Oba Lamidi Olayiwola Adeyemi III (The Alaafin of Oyo) filed an application in this case praying for an order of court to join him in the suit HOY/11/91 as the 11th defendant. The application for joinder was not opposed by the 10th defendant, while the 2nd, 3rd, 8th and 9th defendants were neutral. The 1st, 4th, 5th, 6th and 7th defendants opposed the application along with the plaintiffs on the ground that he was not a necessary party to the proceedings. The application joining Oba Adeyemi as the 11th defendant to the suit before the lower court was granted on the 15th of July, 1991, on the hypothesis that the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th defendants are his customary tenants based on the affidavit evidence before the court.
Being dissatisfied with the decision of the lower court, to join an 11th defendant, the 1st, 4th, 5th, 6th and 7th defendants. Henceforth to be referred to as the defendants/appellants, filed an appeal to this court. The other parties to the suit before the High court – the original plaintiffs are now plaintiffs/respondents, while the 2nd, 3rd, 8th and 9th defendants are now to be referred to as the defendants/respondents. The 11th defendant, the party joined by order of court is now unanimously referred to as “Intervener.” The defendants/appellants applied for leave to file Notice of Appeal on which seven grounds of appeal were reflected and from the seven grounds of appeal, four issues were formulated for determination in this appeal. The issues for determination propounded by the defendants/appellants in their briefs filed on 11/5/95 are listed below:-
(1) Whether the Oyo State High Court arrived at a wrong decision as a result of its failure to consider the cases of Okafor & Ors. and Nnaife & Ors. (1973) 3 SC 85, (1973) 1 ANLR (Pt.1) 238 and Mogaji v. Mogaji (1986) 1 NWLR (Pt.19) 759 which were brought to its notice.
(2) Whether the Oyo High Court was correct in holding that the intervener was a necessary party to the suit and consequently granting his application for joinder.
(3) Whether the intervener was entitled to be joined as a defendant to introduce a question of title which was no longer in issue between the intervener and the appellants in view of the decision of Oyo State High Court in Suit No. HOY/41/81.
(4) Whether it could be said that the learned Judge correctly exercised his judicial discretion by ordering that the intervener should be joined as the 11th defendant in this case despite the fact that, before coming to the decision the learned trial Judge did not consider various issues raised by the appellants including the issue of jurisdiction, the issue of the legal effects of the judgment in suit No.HOY/41/87, the issue of the plaintiffs/respondents unwillingness to sue the intervener and the issue of the dissimilarity of the interest of the intervener and that of the appellants and the defendants.
The learned counsel appearing for the appellants related issue No.1 to grounds 1 and 3 of the grounds of appeal, issue 11 to grounds 2, 4 and 6, issue 3 to grounds 5 and issue 4 to ground 7.
The counsel for the plaintiffs/respondents humbly submitted in his brief that all the four issues identified as the issues for determination by the appellants in this appeal can be summarised into one issue as follows:-
“Whether or not the party seeking to be joined in the above suit as a party to the above action has sufficient interest in the land in dispute in the above case to constitute him as:-
(1) A necessary party.
(2) A desirable party.
(3) A proper party to the above action who should have been joined as the 11th defendant in the above case as ordered by the lower court.
The plaintiffs/respondents were opposed to the idea of joining the intervener as the 11th defendant in the lower court as he was not a necessary party vide pages 24, 26, 83, 84, 85 of the records particularly the arguments afforded by Chief Awoniyi in opposing the application. The plaintiffs/respondents filed the brief on 30/4/97 to be heard in respect of this application. He confirmed on page 2 of the brief paragraph 4 that the plaintiffs/respondents opposed the application for joinder at the lower court.
The plaintiffs/respondents on page 3 paragraph 6.03 said:-
“Even though the respondents initially unsuccessfully opposed the joinder of the Interveners, yet on second reflection of the whole case, the plaintiffs/respondents would not have a judgment whose title cannot be enforced against the person now seeking to be joined in the above action on and it may turn out that the plaintiffs/respondents are fighting a battle with wrong persons in the above action.”
In short the plaintiffs/respondents had now taken a ‘D’ turn from their previous stand on the question of joinder of the intervener at the lower court. He supported this with the case of Hiflow Farms Industries v. UNIBADAN (1993) 4 NWLR (pt.290) page 719 at 732 which held that:-
“If proper parties are not joined by the plaintiff in an action before a court such a court will be right to strike out the case.”
The plaintiffs/respondents are now conceding that the intervener should be joined so as to avoid being struck out by the lower court upon the authority cited. The 5th, 6th, 7th, 9th and 10th respondents filed a brief dated the 7/5/98. Mr. R.R. Ayomide is now appearing for the 5th-10th respondents. These defendants the 2nd, 3rd, 8th, 9th and 10th now constitute the 5th, 6th, 7th, 8th, 9th and 10th respondents in this appeal.
These defendants/respondents by way of repetition did not oppose the intervener’s application for joinder. The issues for determination raised by them are as follows:-
(1) Whether the learned trial Judge came to a right decision in making an order of joinder to the effect that the 10th respondent herein be joined as the 11th defendant.
(2) Whether the learned trial Judge should have resolved the issue of title between the people joined that is, the 10th respondent and the appellants having regard to the decision in suit No. HOY/41/87 before determining whether the order of joinder should be made.
The learned counsel for the respondents related issue 1 to grounds 1, 2, 3, 4 and 6 of the grounds of appeal, while issue 11 is related to ground 5 of the appeal. I find it convenient at this stage to pass brief remarks in respect of the briefs filed by parties in this appeal. The brief filed by the defendants/appellants in their presentation is repetitive and verbose. It is more like of a legal history document than a legal brief of argument and this made the reading cumbersome. The appellate courts have produced an avalanche of legal authorities on the format and contents of briefs. The recommendations in such cases that a good written brief must be a succinct and concise statement of the party’s argument in the appeal, must mirror the real issues in controversy in the appeal and argue them so as to induce conclusion and acceptance: Archbode Engineering Ltd. v. Water Resources Hydro Technique Wassertechnik AG. (1985) 3 NWLR (Pt.2) 300; Engineering Enterprises v. A.G., Kaduna (1987) 2 NWLR (Pt.57), 413 at 414; Chinweze v. Masi (1989) 1 NWLR (Pt.97) 254 at 265; Obiora v. Osele (1989) 1 NWLR (Pt.97) 279 at 294.
The issue for determination which is an essential element or component of a brief of argument has also been defined as a succinct and precise question based on one or more grounds of appeal for the determination of the court. It must be cogent, weighty and compelling. The purpose of formulating issues or questions for determination is to make parties to an appeal to narrow down the issues contained in the grounds of appeal in the interest of accuracy, identity and brevity. Danfulani v. Shekari (1996) 2 NWLR (Pt.433) 723; Adewumi v. A.-G., Ondo State (1996) 8 NWLR (pt.464) 73; Onwo v. Oko (1996) 6 NWLR (Pt.456) 584. Some of the issues for determination presented are devoid of brevity and clarity. In the appellants reply brief in respect of the plaintiffs/respondents brief, the issue for determination formulated by the plaintiffs/respondents is as shown at page 4 of their briefs. The plaintiffs/respondents did not in their brief relate the issues to any of the grounds of appeal filed by the appellants. The issue formulated is not raised in any of the grounds of appeal filed by the appellants.
A respondent is not allowed or entitled to frame issues outside the grounds of appeal filed by the appellant. He referred to the cases of Idika v. Erisi (1988) 2 NWLR (Pt.78) 563 at 597; Olowosago v. Adebanjo (1988) 4 NWLR (Pt.88) 225 page 288; Okonkwo v. Ok% (1988) 2 NWLR (Pt.79) 632, 649.
It is trite that issues for determination must be or relate to grounds of appeal any such issues not related must be discountenanced. Carlen v. UNIJOS (1994) 1 NWLR (Pt.323), 631; Fawehinmi v. Akilu (No.1) (1987) 3 NWLR (Pt.67) 797; Chevron Nig. Ltd. v. Onwugbelu (1996) 3 NWLR (Pt.437) 404; Olatunji v. Alaba (1998) 8 NWLR (Pt.563) 569; Kalu v. Odili & Ors. (1992) 5 NWLR (pt.240) 13 at 167.
I have already observed that, in this same brief of the plaintiffs/respondents they somersaulted and practically deviated from their stand before the lower court. Briefs filed by appellants and respondents are akin to exchange of pleadings. In the interest of justice and in line with the practice of the appellate courts in dealing with bad briefs, I will overlook the lapses, so as not to punish parties before the court unduly. Ekpan v. Uyo (1986) 3 NWLR (Pt.26), 63; Akpan v. The State (1992) 6 NWLR (Pt.248)439. From my observation of all the issues as they are formulated in the appellants brief. I agree with the plaintiffs/respondents counsel that there is only one issue for determination in this appeal which I put as follows:-
“Whether the learned trial Judge had in the exercise of his discretionary power come to a right decision in making an order to join the 10th respondent in the…this appeal, as the 11th defendant and a necessary party in Suit No HOY/11/91 before his court”
I regard all the four issues for determination by the defendants/appellants encompassed in this blanket and all embracing issue. It is impossible to consider this single issue without touching upon all the points raised by the appellants for determination whereby, I intend to shelve as much as possible all unnecessary repetitions made in their arguments. In order to get a clear picture of the issue in this appeal and the order made by the High Court, the under mentioned show the stages of the proceedings at which the lower court made the order for joinder.
(1) The application for joinder was filed on 20/5/91.
(2) Writ of Summons filed on 8/2/91 with an endorsement as regards the plaintiffs claim against the 1st – 10th defendants, which are four fold:
(3) Appearance entered 1st-5th defendants as at 15/2/91.
(4) Appearance entered for other defendants dated 18/2/91.
(5) Application…for striking out suit 1st defendant/applicant filed on 22/2/91.
(6) Application of both parties struck out 23/4/91.
(7) Statement of claim with 7 reliefs filed 5/3/91.
(8) Application to order defendant to allow Surveyor to enter land and draw plan 17/4/91.
(9) Application for joinder filed 20/5/91.
(10) Application to enter appearance by 2nd, 3rd, 8th and 9th defendants filed 19/6/91 – Customary tenants.
(11) Application for joinder heard on 27/6/91.
(12) Appearance entered for 10th defendant 18/7/91.
Foregoing illustrate the stages of the proceedings at which the learned trial Judge made his order for joinder on 15/7/91.
(a) Parties have not exchanged pleadings, there was no statement of defence before the court.
(b) The plaintiffs/respondents made reference to a composite plan of their land in the statement of claim filed on 5/3/91 with seven reliefs, this Plan has not been filed either.
Defendants/appellants attached a previous judgment in suit HOY/41/87 to the application for joinder. Mr. Kolawole Alawode of learned counsel for the defendants/appellants, while arguing this appeal, relied on the appellants’ brief and replies to the plaintiffs/respondents and 5th – 10th respondents briefs. He canvassed all the issues raised in their brief, which are now embedded in the single issue considered for determination in the appeal. The crucial points raised are summarised by him as follows:-
“That the lower court was wrong to have refused to follow the Supreme Court’s decision in the case of Magaji v. Magaji (1986) 1NWLR (Pt.9) 759, which facts are on all fours with this case.”
It was held in the foregoing case that:-
(1) An intervener is a necessary witness and not a necessary party.
(2) That a party seeking to be joined must have same interest as the existing defendants.
That the court should have followed the case of Okafor v. Nnaife (1973) 3 SC 85 where it was held that the interest of the intervener is different from that of the existing defendants.
That the intervener in this appeal is not in possession of the land in dispute as the existing defendants. That going by the statement of claim of the plaintiffs/respondents the presence of the intervener is not necessary for effectual or complete adjudication of the questions involved in the case. That the question of title to land was no longer in issue between the intervener and the appellant in view of the decision of the Oyo High Court in Suit No. HOY/41/87.
That in order to confer jurisdiction on a court to make an order of joinder the plaintiff must have a claim against a person seeking to be joined. That paragraphs 6, 7, 8 of the counter-affidavit filed by the plaintiffs/respondents were in opposition to the application, while paragraph 21 of the amended statement of claim states:-
“21. The 11th defendant was joined in the above matter as a codefendant upon order of court despite the averments by the plaintiffs that they have no claim against the 11th defendant in the above matter.”
That the plaintiffs/respondents have no claim against the intervener in their amended statement of claim after the joinder vide pages 103-105 of the records.
That after the joinder the intervener applied for extension of time to file counter-claim. That there is no claim to support the contention that a person who claims to be a customary overlord is a necessary party to an action instituted against the persons alleged customary tenants, whereas Mogaji v. Magaji is still binding on that point.
The learned counsel referred to the case of Peenock Investments v. Hotel Presidential Ltd. (1982) 12 SC 1 at 211; Osunrinde & Ajanigun (1992) 6 NWLR (Pt. 246) 156; Green v. Green (1987) 3 NWLR (Pt. 61) 480. Oshodi v. Egunjobi (1966) 1 All NLR 278 Aromire v. Awoyemi (1972) 1 SC 1.
That the bone of contention of 5th-10th respondents in their brief is that since the 10th respondent in this appeal claim to be the over-lord of the original defendants, the learned Judge was obliged to grant the 10th respondent’s application for joinder. The points raised in the case of Magaji v. Magaji cited above; that the High Court in dismissing the application held as follows:-
“If the defendants against whom the plaintiffs claim possession as counsel for the defendants has suggested, are allottees of others, who are owners, evidence of such allotment and ownership by the others on facts properly pleaded are what the court needs in order to adjudicate effectually and completely on the question of the entitlement of the plaintiffs possession.”
The appeal of the intervener to the Court of Appeal was dismissed, while it held:-
“In any case the real test is as stated at page 227 of the judgment that the question to be settled must be a question in the action which cannot be effectually and completely settled unless a person is a party. I am satisfied that this is not the question here. The question in this action which is one of possession can be effectually and completely settled without the appellant being a party.”
He appealed further to the Supreme Court where it was held that:-
“From paragraph 21 of the appellant’s affidavit at page 4 of the records he is coming to court to testify in support of his assertion that defendant in suit 1/299/82 as well as other members of the family are on the land in dispute in the suit with the persuasion and consent of the Fatokun and Fashile family by allotment to them. I think the appellant can come and give evidence in support for whatever it may be worth.”
The learned counsel Mr. Alawode finally submitted that, the constitutional right of fair hearing will only avail parties to a dispute and following Magaji and Magaji:- said that in order to raise an issue of title to the land of the plaintiffs/ respondents and only possession as in the writ, the intervener has to take a substantive action for declaration of title.
I have dealt with the brief of the plaintiffs/respondents as one worthy to be discountenanced as the only issue for determination is not related to any of the grounds of appeal filed by the appellant. The learned counsel laid emphasis on the question whether the intervener was a proper party or desirable party or necessary party. He even introduced the issue of denying the intervener the opportunity of fair hearing if, he had not been joined, which is equally irrelevant from the angle of the ground of appeal of the appellants. What I consider worthy of note in the brief is paragraph 8.06 at page 6 where the learned counsel Chief Awoniyi mentioned that:-
“Even though at the lower court the plaintiffs opposed the application for joinder by the intervener. Yet after the ruling of the lower court joining the intervener as 11th defendant the plaintiffs have not seen any useful purpose in pursuing against the order of joinder of the intervener and have amended the statement of claim and served same on the intervener in readiness for proving their case against all the defendants including the intervener.”
This statement of claim did not accredit the 10th respondent as a proper party, but that the 11th defendant was joined by order of court whilst the plaintiffs have no claim against him, paragraph 21 page 103 of the records. On page 105 the reliefs of the plaintiffs/respondents against the appellants and the other respondents still remain same as before the joinder.
The 5th -10th respondents in their brief of argument as put forward by their counsel. Mr. B. Ayorinde was fast to recognise that these respondents did not oppose the application of the 10th respondent at the lower court. They are now in this appeal opposing the appellants and have put forward two issues for determination. One of which is already covered by the blanket issue. The counsel referred to order 11 rule 3 of the Oyo State High Court Procedure rules 1988 as regards joinder of persons as defendants, and that a Judge has the power to add or strike out or substitute a plaintiff or defendant at any stage of the proceeding before trial or at the trial Order 11 rule 16 of the same law mentioned above. The learned trial Judge exercised his jurisdiction to join the 10th respondent under that law. The 10th respondent declared his interest in paragraphs 2-5 of the affidavit in support of the application. Particularly paragraphs:-
“4. That the defendants and their ancestors have been tenants to previous Alafins and that they the defendants and their ancestors have always paid Isakole annually to me and previous Alafins in the form of yams, yam flour and other crops.
- That I am informed by the 2nd, 3rd, 8th and 10th defendants and I verily believe them that this action has been brought against them by the plaintiffs in respect of the landed properties that they (the defendants) hold as tenants as aforementioned.”
The 5th-9th respondents did not deny this interest. It is his contention that where a subordinate holder has been taken to court it is necessary to join the other authority by virtue of which or whom the subordinate holder comes into possession of the property in dispute. If the learned trial Judge did not join the 10th respondent the necessary and proper parties would not be before the court. The case is then in imminent danger of being struck out. He referred to the case of Green and Green (1987) NSCC Vol. 18 (pt.11) P.11, 15, (1987) 3 NWLR (pt.61) 480, and the need to have all parties proper, desirable and necessary bound by the result of the action.
In effect the learned trial Judge will eventually and completely adjudicate on all the pending disputes between the parties by having all the interested parties in the suit before the court. The 10th respondent has sufficient interest in the subject matter of the action to join him. On issue two, the learned counsel contended for the 5th-10th respondents that since the extent of the land in dispute was yet to be ascertained the learned trial Judge could not have shut out the 10th respondent on the strength of the decision in suit No. HOY/41/87. The 5th-10th respondents respectfully submit that the appeal be dismissed. For the purpose of the appeal, I shall define the position of the 10th respondent which earlier on in this judgment has been referred to as an “intervener.” According to Black’s Law Dictionary 6th Edition:- An intervener is defined as a person who voluntarily interposes in an action or other proceedings with the leave of court, with reference to intervention. In the same dictionary and directly after intervener, the word intervention is defined as:-
“The procedure by which a third person not originally a party to the suit, but claiming an interest in the subject-matter comes to the case in order to protect his right or interpose his claim. The grounds and procedure are usually defined by various states or rules of civil procedure.Under our civil law, the rules governing the civil procedure of each state define the procedure as to joinder of parties. The 10th respondent in this appeal is obviously an intervener as he applied under the rules of court to be joined in a suit where the plaintiffs at the court below did dot make him a party.
The enabling law under the circumstance is the High Court Civil Procedure Rules 1988 of Oyo State. Order 11 Rule 3 which provides that:-
“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 Rule 16 of the same legislation stipulates that:-
“Any application to add or strike out or substitute a plaintiff or defendant may be made to the court or a Judge in Chambers at any time before trial by motion or summons or in a summary manner at the trial of the action.”
The 10th respondent, an intervener sought jurisdiction of court as to joining him as a co-defendant in the suit HOY/11/91 then pending before the High Court Oyo. He made his request through a motion to which he attached a supporting affidavit of eight paragraphs. Of particular interest are paragraphs 2-5, where he claimed to know the 1st-10th before the lower court, and claimed that the 2nd-10th defendants are his tenants in respect of various landed properties in and around Oyo town. That, the defendants have been tenants of previous Alafins whereupon they have been paying yams, yam flour and other crops as Ishakole. He confirmed that the plaintiffs in Suit No. HOY/11/91 have filed an action against them in respect to land for which they are his tenants. This takes me to the said action filed against the defendants in Suit No. HOY/11/91. The writ and statement of claim reveal the reliefs sought by the plaintiffs before the court. Paragraph 26 of the statement of claim amplified the claim of the plaintiffs against the 1st-10th defendants at this stage excluding the intervener. Seven reliefs are sought as follows:-
(1) That 2nd, 3rd, 8th, 9th and 10th defendants are customary tenants of the plaintiffs in respect of their holdings at Ojomgbodu, an area of land to be verged on a composite plan to be filed.
(2) Injunction to restrain them from going beyond the area granted to them as customary tenants of the area of land shown on the composite plan.
(3) That the same defendants are to continue to pay their customary levies to the plaintiffs so as to avoid forfeiture of the plaintiffs land in their possession.
(4) General damages of N100,000 for breach of their covenants as customary tenants.
(5) Forfeiture of the customary tenancies of the lands of the plaintiffs occupied by the 3rd and 9th defendants at Ojomgbodu are to be shown on the proposed plan.
(6) N400 for general damages for trespass committed by the 1st, 4th, 5th, 6th, 7th defendants on the land of the plaintiffs at Ojomgbodu an area to be indicated on the map.
(7) Perpetual injunction to restrain the above trespassers from continuing to perpetrate this act of trespass, on the plaintiffs said land vide page 16 of the records.
It is trite that the cause of action is determined by the plaintiff’s statement of claim and not by the defence of the defendants in reply to the statement of claim. Adeyemi v. Opeyori (1976) 10 NSCC 455, (1976) 9-10 SC 31; Oloriode v. Oyebi (1984) 5 SC 1; (1984) 1 SCNLR 390; Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508.The cause of action is against the defendants in active possession of the plaintiffs land as customary tenants, while the relevant paragraph of the statement of claim depict this. The action is also against the 1st, 4th, 5th, 6th and 7th defendants who are committing acts of trespass on the plaintiffs land. Action in trespass is also at the instance of one in possession or an offence against possession by the defendants. There is relief for forfeiture simpliciter, by the 3rd and 9th defendants, and forfeiture for failure to pay customary levies.
These reliefs are sought by customary landlords, the plaintiffs against their customary tenants in possession of their plaintiffs land at Ojomgbodu Oyo. The issue for determination therefore to be repeated for the sake of emphasis is:-
Whether the learned trial Judge in the exercise of his discretionary power had come to the right decision in making an order to join the 10th respondent.”
Reason enjoins me to quote the order and supportive findings of the learned trial Judge. At page 46 of the records, the penultimate paragraph the learned trial Judge held:-
“It is my view that if the present applicant is not joined now, he and his successors may be caught by the desire of standing by in the future in respect of the land in dispute. In the circumstance, it is my order that his application be granted as prayed. He will be the 11th defendant in the substantive suit. It is further ordered that all the processes already filed in this case be served on him accordingly before the return date fixed for August, 1991.”
On page 95 lines 4-10 of the records he mentioned that the question the court is to answer in this type of application before me is whether the applicant is a person to be served by the plaintiffs i.e., whether the plaintiffs have a claim against the applicant. This is the sort of condition precedent to be looked for in this application to succeed in view of the judicial decisions in point. He cited the cases of Mogaji v. Mogaji (1986) 1NWLR (Pt. 19),759 at 768, Okafor v. Nnaife (1973) 3 SC 85, (1973) 1 ANLR (Pt.1) 238; Uku v. Okumagba (1974) 3 SC 35 at 62. I shall return to the cases of Mogaji v. Mogaji, and Okafor v. Nnaife shortly.
Is the applicant a person to be sued by the plaintiffs? The cause of action now does not involve the applicant neither is there any relationship created between both parties in respect of the Ojomgbodu settlement of the plaintiffs
The learned trial Judge observed that in the application, the applicant claims to be landlord of the same defendants. This is an issue of competing claims to possession which automatically put title to the land in issue; except for the fact that the land in dispute is not yet ascertainable. There is the composite plan of the land to be drawn, filed and served on parties. Parties are yet to exchange pleadings. The learned trial Judge referred to the case of Green v. Green, Ekpere v. Olonode, that:-
where a subordinate holder has been taken to court, it is only necessary to join the other authority by virtue of which or whom the subordinate holder comes into possession of the land being held to be in dispute. The learned trial Judge gave consideration to possession held by defendants as agents and servants or privies in possession of land as customary tenants now torn between two customary landlords where the latter will surely extend from the issue of possession to establish the issue of title. The amended claim of the plaintiffs after joinder of the applicant did not portray him as a customary landlord, or even that he is in possession of land in dispute.
The rules of court permit joinder by court on various grounds, particularly on the application of an intervener of course, in an atmosphere where a court finds sufficient reasons warranting him to exercise this discretionary power. Green v. Green, Mogaji v. Mogaji, (already cited).The plaintiffs were still emphatic that they have no claims against him and that he was only joined by order of court. The celebrated cases of Green v. Green (1987) 3 NWLR (pt. 61),480 defined proper parties as those who though not interested in the plaintiff’s claim are made parties for some good reasons.
Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subjects matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. The applicant was joined as a necessary party. In the Green’s case, the court held that, where the determination of an action between two parties would directly affect a third party’s legal rights or his pecuniary interest the court has discretion to order the third person to be added as a party. I find it convenient to go over the case of Mogaji v. Mogaji and Okafor v. Nnaife on which the case of the appellants rest. It is the impression of the learned counsel for the appellants that the learned trial Judge did not give adequate consideration to these two cases hence he would not have joined the applicant as a necessary party. The case is almost on all fours with this case on appeal except that the issue of title is yet to be settled between the parties here.
The plaintiffs/respondents claim to be the present customary landlords of the 5th-9th respondents in this suit, and the 10th respondent, joined as the 11th defendant in the lower court who is making the same assertion that he is also the customary landlord. This opens a new dimension to suit No. HOY/11/91. The learned trial Judge accepted the affidavit evidence of the applicant/intervener in making the joinder. The question now open to court is the issue of who is customary landlord of these same set of respondents. Can the court effectually and completely adjudicate upon this without joining the 10th respondent. It is the contention in the case of Mogaji v. Mogaji that a person can be joined as defendant against the wishes of a plaintiff if:-
(a) When the justice of the matter demands that the party has to be joined before the case can be properly determined; or
(b) Where the plaintiff’s case or the defendant’s case in the existing action cannot be effectively and completely determined without the joinder.
It is said that a person sought to be joined should have the same interest as the existing defendants. The defendants interest in this suit affects the customary tenancy of the land in dispute which is also the interest of the existing defendants/respondents in respect of the land. Can any evidence as to how the 5th-9th respondents got to the land be given by the 10th respondent as a witness? Giving evidence as witness will not meet the justice of the case in a situation where the issue of who is the customary landlord has to be settled between him and the plaintiffs’ family. The distinguishing feature between this case and Mogaji’s case is that, the issue of title had been settled between the plaintiff and the respondents in the latter case. The 10th respondent is coming into this action before the High Court to re-assert his title. The 10th respondent would be bound by any result of the action by the plaintiffs/respondents before the lower court. Case HOY/41/87 has no bearing with the present action as the parties are entirely different and the land in dispute going by their names Ahoro Ikoko and Ahara Ojomgbodu are equally distinct. It is not in doubt that the applicant has sufficient interest in the subject-matter of the action a land on which he has customary tenants the 5th-9th respondents.
The over all justice of each case has to be examined and this will surely dictate the order which the court can make in the circumstance. The action of the plaintiffs/respondents will not be properly constituted when the 5th-9th respondents indicate in their defence that the 10th respondent is their landlord and he is not joined. The court apart from joinder may at any stage of the proceedings, and on such terms as appear to the court to be just, order that the name or names of parties or party improperly joined be struck out particularly when proceeding is in top-gear. Okafor v. Nnaife (1973) 3 SC 85; (1973) 1 ANLR (Pt.1) 238.
In the case of Chinweze v. Masi (1989) 1 NWLR (Pt. 97) P. 254 at 267, it was held that one of the reasons for joining a necessary party to an action is the issue of estoppel by standing by, because if the necessary party knows of the pendency of a suit and keeps quiet, he will be bound by the result.
In the case of Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) P. 151 at 120-171, His lordship Ogunlana JSC held that:-
“The real test for joining a particular person to an action, is whether the person sought to be joined is prejudiced if an order joining him as a party is not made.”
In the case of in Re: Yinka Folawiyo & Sons Ltd. (1991) 7 NWLR (Pt. 202) P. 237 at 244 it was held that:-
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 court.”
In the case of Busari v. Oseni (1992) 4 NWLR (Pt.237) 557, His Lordship Niki Tobi JCA held in his leading judgment that the term sufficient interest should be given a narrow construction but should be regarded as including any connection, association or interrelation between the applicants and the matter to which the application relates. The test of sufficient interest is whether the person seeking for a redress or remedy will suffer some injury or hardship arising from the litigation. If the court is satisfied that he will so suffer then he must be heard as he is entitled to be heard.” Finally, if the 10th respondent is not joined in this case and is only made a witness by the 5th-9th respondents, he will in the near future have to institute another action for declaration of title to assert his right as customary landlord. The writ and pleadings can still be amended in this case to reflect the case of the parties. In the case of Mogaji v. Mogaji, it was held that the two main objectives for joining a party to an action are:-
(a) To put an end to litigation and not to have two parallel proceedings in which the same issue is raised leading to different and inconsistent results.
(b) To make the person joined to be bound by the result of litigation.
In the case of Chinweze v. Masi (1989) 1 NWLR (Pt. 97) P. 254 at 267 it was held:-
“That it is the policy of the courts to avoid as much as possible multiplicity of suits … The court has a duty to prevent the expensive luxury of having to separate suits where it can by joinder settle the whole matter in one action.”Our law reports are rich in cases on joinder and related topics. It is however not disputed that the power to join a person as a party to a suit is discretionary, but same should not be granted as a matter of course. The learned trial Judge here exercised his discretionary power within the framework of the enabling rules of court in this regard, which is Order 11 rule 3 of the Oyo State High Court (Civil Procedure) Rule 3 of the Oyo State High Court – Civil Procedure Rule 1988. Exercise of powers of discretion in respect of joinder under the rules of court have been interpreted by the courts in numerous cases, like Lajumoke v. Doherty (1969) 1 NMLR 281; Ukuv. Okumagba (1974)9NSCC 128,(1974) 1 SC 35; Green v. Green (1987) 18 NSCC (Pt. 11) P.115, (1987) 3 NWLR (Pt.61) 480; Oshoboja v. Dada (1987) 4 NWLR (pt. 66),565; Peenock Investments Ltd. v. Hotel Presidential Ltd. (1982) 3 NSCC 477, (1982) 12 SC 1; Yakubu v. Governor of Kogi State (1995) 8 NWLR (Pt. 414) 386 402-403.
It is apparent that the learned trial Judge concluded that the 10th respondent is a necessary party whose joinder to a party is necessary for the purpose of adjudicating effectually and completely upon the matter of the customary tenancy of the land in dispute and that if not joined now his share of interest in the land in dispute and of his successors would be adversely affected. It is the conclusion that, the learned trial Judge was right in exercising his wide and unrestricted discretionary power in favour of joining the 10th respondent as a co-defendant in the suit HOY/41/91 before the Oyo High Court.
Where a discretionary power had been exercised by the lower court not based on a wrong principle of law and not arbitrary, capricious or unrestrained an appeal court will be reluctant to interfere with the exercise of such power. This appeal therefore fails. Ruling of the lower court is affirmed. The suit is to proceed to hearing with the 10th respondent as the 11th defendant. No order as to costs.
Other Citations: (2000)LCN/0667(CA)
