Chief Ededem Okon Ayito & Anor V. Calabar Municipal Government & Ors (2016)
LawGlobal-Hub Lead Judgment Report
PAUL OBI ELECHI, J.C.A.
This is an appeal against the Ruling of Justice Adie Attoe-Onyebueke of the Cross River State High Court No. 7 Calabar delivered on the 11th October, 2013 in suit No. HC/324/2012. The Appellant’s not being satisfied by the Ruling of the Learned trial Judge at the Lower Court has now brought this appeal to challenge the said Ruling.
The fact of this case is that the Appellants are members of Etab Ayip Kasuk Multipurpose Cooperative Society. They contributed money and obtained permit from the 1st Respondent to operate an abattoir at Etab Ayip Village. On the basis of the permit, the Appellants erected shades, constructed slaps and commenced operation of the abattoir in 2010. In 2012, the 1st-5th Respondents forcefully entered the abattoir, pulled down the shades, destroyed all the slabs and carted away their meat and other wares from the abattoir. The 1st-5th Respondents carried out their illegal act while the permit issued to them to operate the abattoir was still subsisting.
?On the basis of the above, the Appellants filed the present suit at the Cross River
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State High Court against the 1st-5th Respondents for damages for unlawful demolition of their abattoir. Issues were joined but before hearing commenced, the 6th & 8th Respondents filed an Application to join as Defendants/Counter Claimants so that the Court can determine the owner of the land. At the conclusion of arguments, the Learned trial Judge granted the Application joining the 6th & 8th Respondents/Counter-Claimants to hear Claim on land even when no such claim was before the Court at the time of filing the writ of Summons, and having also failed to comply with the provisions of the Law. It is on that basis that the Appellants have brought this appeal challenging the joinder.
To argue the appeal, the Appellants formulated two issues for determination viz:
(1) Whether it was right for the Learned trial Judge to join the 6th to 8th Respondents in the circumstances of this case;
(2) Whether it was right for the Learned trial Judge to assume jurisdiction to determine the owner of the land when there was no such Claim before the Court.
In arguing issue No. 1 above, Learned Appellant’s counsel submitted that the 6th to 8th
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Respondents failed to disclose what interest they have in the cooperative society which they are not members. They also failed to show how their interest is identical with that of the existing defendants in the suit or how the suit cannot be effectually adjudicated upon without joining them at parties.
What justifies a joinder of a party in a suit is whether the party would be bound by the result of the action. See GREEN v. GREEN (2001) FWLR (Pt. 76) 795, EFFIOM v. IRONBAR (2001) FWLR (Pt. 53) 137.
According to Learned Counsel, the damages to be inflicted in this case can only be borne by the 1st – 5th Respondents and not the 6th to 8th Respondents. Therefore, it’s wrong for the 5th to 8th Respondents to apply to be joined when they have failed to disclose their interest or connection. Even the Application for joinder filed by the 6th to 8th Respondents did not comply with the provisions of Order 15 Rule 17 (1) (2) of the Cross River State High Court (Civil Procedure) Rules 2008 which provides that such Application shall be accompanied by a proposed Counter-Claim, all exhibits to be used and the depositions of witnesses, as required by Law.
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Having not done same by complying with the Law, the 6th-8th Respondents Application was incompetent and shall have been struck out on grounds of jurisdiction. Rules of Court Learned Counsel submitted must be strictly adhered to as they are like statutes designed to obtain justice with ease. See AGIP v. AGIP (2010) ALL FWLR (Pt. 520) 1198. Failure to comply with the form prescribed for bringing up an action makes such an action incompetent and fatal. See ALAO v. A. AJAO (19g6) 5 NWLR (Pt. 45) 802, UDEME v. UGWU (1997) 3 NWLR (Pt. 491) 57. He, therefore, submitted that the incompetency of the Application robbed the Court of the jurisdiction to hear the Application decide it on its merit; ALEMALOKE v. PRESIDENT, IBADAN CUSTOMARY COURT (2007) ALL NLR (Pt. 358) 1201. He then urged the Court to resolve this Court in their favour.
On Issue No. 2 i.e. whether it was right for the Learned trial Judge to join the 6th-8th Respondents in order to determine the owner of the land. Learned Appellants’ counsel contended that the 6th to 8th Respondents were joined in the suit to enable them start a new cause of action by way of counter-claim which is not allowed in
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Law. See GOWON v. IKE-OKONGWU (2002) 13 NSCQR 353. It is Learned Counsel’s submission that where the original suit and the Counter-Claim arose out of some set of facts transactions, it would be desirable to hear them together. See OYEGBOLA v. ESSO WEST AFRICAN INC. (1966) 1 ALL NLR 170. In this case at hand he submitted that since the instant case did not arise out of the same set of facts or transactions it was therefore wrong for the Learned trial Judge to join the 6th-8th Respondents to counter-claim and bring a fresh claim on land which arose subsequent to the issue of the Writ.
He then urged the Court to resolve this issue in their favour and to allow the appeal and set aside the Ruling of the Lower Court. The 1st-5th Respondents did not file any process either in support or otherwise in the Application for joinder.
However, the 6th-8th Respondents in reply, distilled two issues for determination:
(1) Whether it was right for the Learned trial Judge to join the 6th-8th Respondents in the circumstance of this case.
(2) Whether it was right for the Learned trial Judge to assume jurisdiction to determine the owner of the land when
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there was no such Claim before the Court;
In arguing Issue No. 1 which is whether it was right for the Learned trial Judge to join the 6th to 8th Respondents in the circumstance of this case, the Learned Respondent’s Counsel submitted that the appeal lodged in this matter is merely to delay and cause the Appellants to continue in trespass otherwise they could have proceeded with the hearing of the case on its merit to completion and then appeal even on the joinder at the end of it all in compliance with Order 15 Rule 16(1) of the High Court (Civil Procedure) Rules of Cross River State, 2008 IYERE v. BENDEL FEEDS & FLOUR MILL LTD. (2008) 8 NWLR (Pt. 1119) 300. Also Order 15 Rule 1(1) declared that such non-compliance to be an irregularity which will not nullify the proceedings or any document, Judgment or order therein. He then urged the Court to resolve this issue in their favour.
?On Issue No. 2 – that is whether it was right for the trial Judge to join the 6th – 8th Respondents in order to determine the owner of the land, the Learned Respondents Counsel here contended that there is need to join them (6th – 8th Respondents) so that they be bound
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by the result or outcome of the action and that it cannot be fully and finally determined without their participation in the action. The Respondents who Claim to be owners of the land on which the structures are built whether temporary or permanent cannot stand by and do nothing otherwise they will forever be estoppel from challenging the outcome of the action.
On the basis of the above, he then urged the Court to resolve this issue in their favour ad consequently to dismiss the appeal.
In a Reply Brief, Appellants Counsel submitted that the decision by the Lower Court to join the 6th to 8th Respondents was a clear breach of the provisions of the Law as per his Issue No. 1.
On Issue No. 2, he submitted that it was misleading for the 6th – 8th Respondents to argue that a mere case of destruction of meat and wares cannot be completely and effectively determined without joining them and go into trial of land case by way of a counter-claim. See IKE v. GOWON (supra).
Also Learned Appellant’s counsel submitted that no Law was cited by the Learned trial Judge which empowered him to join the 6th-8th Respondents. Against the background
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of the above, he urged the Court to allow the appeal in the interest of justice.
In considering the issues raised in this appeal, one must appreciate that the question whether or not to grant an Application for joinder of a party calls for the exercise of the discretionary powers of a trial Court which discretion must not only be exercised judicially but also judiciously. See EZEKIEL IBIGBAMI & ANOR. v. MILITARY GOVERNOR, EKITI STATE & ORS. (2004) 4 NWLR (Pt. 363) 243.
The joinder of parties deals essentially with joinder of parties to an action. Such joinder can be made by the Court suo moto or an Application by a person or persons who can satisfy the requirement that his joinder is necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter. The governing principle which is a cardinal rule for the administration is that principle conveniently expressed in Latin interest rei publicae ut sit finis litium. The termination of litigation is in the public interest. Hence where the issues between the parties involve third parties whose interest are affected and the
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omission of which was found to result in further litigation, such parties are those whose presence will be necessary for the effectual and complete adjudication of the matter before the Court and their presence as parties is a sine qua non for the purpose.
In the instant case, the consideration is whether the entry of the parties sought to be joined “will enable the Court effectually and completely adjudicate upon and settle all question.”
Having regard to all the principle of joinder of parties, the questions to be determined are:
1. “Is the cause or matter liable to be defeated by the non-joinder of the third parties as defendants?
2. Are the third parties persons who ought to have been joined as defendants in the first instance?
3. Are the third parties persons whose presence before the Court as defendants will be necessary in Order to enable the Court effectually and completely to adjudicate upon and settle the entire question involved in the cause or matter.”
On the other hand, it is settled that the Courts will not compel a plaintiff to proceed against a party he has no desire to sue. See Mogaji v. Mogaji & Ors
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(1986) LPELR-189 (SC).
In the instant case, the parties sought to be joined have not satisfied any of the above conditions or how the matter cannot be effectively determined without joining them. They are not interested in the meet destroyed and the outcome of the case will not affect them in any way as they are not member of the multipurpose cooperative society.
In conclusion, I must say that the question whether or not to grant an Application for joinder of a party calls for the exercise of the discretionary powers of the trial Court which said discretion must not only be exercised judicially and judiciously. See EZEKIEL IBIGBAMI & ANOR. v. THE MILITARY GOVERNOR, EKITI STATE & ORS. (2004) 4 NWLR (Pt. 863) 243. In the present Application, the Learned trial Judge did not exercised same both judicially and judiciously in holding that the Respondents have locus standi to bring their Application and consequently, allowing their Application by joining the 6th to 8th Respondents as parties to be joined in the suit and I do not agree with him.
?Having resolved all the two issues in this appeal against the Respondent, I hereby hold that
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the appeal has merit and it is hereby allowed. The Ruling of the Lower Court delivered on the 11th October, 2013 is hereby set aside.
Appeal allowed and the Order of the Lower Court set aside.
Parties to bear their various costs.
Other Citations: (2016)LCN/8699(CA)
