Chief Moses Edewor V. Property Development Company Nigeria Limited (2003)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

The real issue in this appeal is whether the learned trial Judge was right in declining to join Texaco Overseas (Nig) Petroleum Company Unlimited (TOPCON) as Co-defendant having regard to the circumstances of this case. As the substantive Suit is yet to be tried, I do not think that the second issue is relevant for consideration in view of the fact that this Court can make a consequential order that Texaco Overseas (Nig) Petroleum Company Unlimited be joined as a party if the resolution of the issue raised above favours the joinder.

The Supreme Court has laid down the principles which a Court should follow when it is deciding on the effect of non-joinder of a party to a Suit. Oputa J.S.C. postulated the following questions which a Court should ask itself when considering the issue of joinder of parties namely:-

“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 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 adjudicate on and settle all the questions involved in the cause or matter?” See:

GREEEN v GREEN (1987) 3 NWLR (Pt.61) 480 at page 498.

It is necessary at this stage to state the facts that culminated in this appeal. Chief Moses Edewor as Plaintiff instituted an action against property Development Company (Nigeria) Limited before an Effurun High Court in Suit No.EHC/252/97 claiming the following reliefs in the Writ of Summons:-

(i) A declaration that the plaintiff is exclusively entitled to a right of occupancy over all that piece or parcel of land lying and situate in Umah Village, New Port Express Way, Ekpan, within the jurisdiction of this Honourable Court (the exact location and dimension of the said piece or parcel of land shall be more particularly shown in the Survey plan which may be filed with the Statement of Claim.

(ii) The sum of N200,000,000.00 (Two hundred Million Naira) as damage (sic) from the Defendant (sic) trespass into the Plaintiff’s aforesaid land.

(iii) An Order of Perpetual Injunction restraining the Defendant, by itself, its agents, servants and/or privies from further trespassing into the Plaintiff’s aforesaid piece or parcel of land and/or interferring, with or interrupting the Plaintiff’s use and enjoyment of same.”

The Writ was issued on 16/9/97 and on 17/9/97 the Plaintiff brought an ex-parte application for an interim Injunction in terms of the prayer set out in relief No. (iii). The learned trial Judge made the following orders when granting the interim Injunction:-

“(1) The defendant by itself, its agents, servants, workmen and/or privies are hereby restrained from further entering and/or further developing any property in all that parcel of land measuring about 10 (ten) acres lying and situate at Umah Village along New Port Express Way, Ekpan, pending the determination of the motion on notice already filed.

(2) The applicant shall enter into a bond to pay N100,000.00 as security against any damage the defendant may suffer should the applicant abandon this matter or fail at the end for being frivolous”.

The motion on notice was thereafter taken by Omo-Agege CCJ who granted Interlocutory Injunction on 22/5/98. Despite the Interlocutory Injunction which was still operating, the party sought to be joined was seen working on the land. This prompted the Plaintiff to file a Motion Ex-parte praying for-

“1. AN ORDER joining TEXACO OVERSEAS (NIGERIA) PETROLEUM COMPANY UNLIMITED as the 2nd Defendant to this Suit

2. AN ORDER granting leave to the Plaintiff/Applicant to amend his Writ of Summons and Statement of claim to reflect the said TEXACO OVERSEAS (NIGERIA) PETROLEUM COMPANY UNLIMITED as 2nd Defendant in this Suit”.

In paragraphs 2, 3, 4, 5, 6, and 7 of the affidavit in support, the Plaintiff deposed to the following facts:-

“2. That pursuant to an application (filed on 22nd May, 1998, this Honourable Court made an Order of Interlocutory injunction restraining the Defendant in this Suit from further developing any property in the disputed land.

3. That despite the aforesaid order, the erection of buildings on the disputed land has continued.
4. That based on the facts stated above I initiated contempt proceedings against the persons responsible for the ongoing construction
5. That one of the Respondents to the contempt proceedings MR ROBERTO BOLLERI a Building Superversor with G. CAPPA PLC; the company carrying out the aforesaid property swore to an affidavit wherein he disclosed inter alia, as follows:-

(i) That G. Cappa Plc is executing the construction of housing estate on the disputed land for TEXACO OVERSEAS (NIGERIA) PETROLEUM COMPANY UNLIMITED

(ii) That G. CAPPA PLC does not know the existing Defendant in this suit and has no contractual relationship with it

(iii) That the aforesaid construction going on is not being done for the existing Defendant in this case. A copy of the said affidavit which forms part of the record of this Honourable Court is attached and marked Exhibit A

6. That in view of the facts stated above, it is evident that TEXACO OVERSEAS (NIGERIA) PETROLEUM COMPANY UNLIMITED is one of the trespassers to the Plaintiff’s land in that it is exercising acts which conflicts (sic) with the Plaintiff’s interest in the aforesaid land.
7. That in view of the facts stated above I verily believe that it is in the interest of justice to joint (sic) it as a party to enable the Court determine all issues arising in this case between all parties once and for all”.

The records prepared for the appeal at page 29 shows that one John Omena, an Assistant Supervisor in the Defendant Company deposed to a Counter-affidavit on behalf of the Defendant in which he averred the following facts:-

“3. That the Defendant/Respondent is the bonafide owner of the piece of land completely fence (sic) round along New Port Express Road, Effurun otherwise known as PRODECO INTEGRATED ESTATE.

4. That the Defendant/Respondent put Texaco Overseas (Nig) Petroleum Unlimited (TOPCON) into possession of the said land.
5. That Texaco Overseas (Nig) Company Unlimited sought to be joined in this suit is tenant to the Defendant/Respondent over the land the Plaintiff is laying false claim to.
6. That the interest of Texaco Overseas (Nig) Petroleum Unlimited over the said land is subject to that of the Defendant/Respondent being its landlord.
7. That G. CAPPA PLC is working for Texaco Overseas (Nig) Petroleum Company Unlimited on the land in which Texaco Overseas (Nig) Company Unlimited is a tenant to the Defendant/Respondent.
8. That this Suit can be effectively and effectually determined without joining the party sought to be joined to this suit who is a tenant to the Defendant/Respondent”.

Arguments were taken in the application and in a reserved ruling delivered by Jaho J. on 16/3/99 he refused the application and held that the Plaintiff’s case can be effectively and effectually determined without joining Texaco Overseas (Nig) Petroleum Company Unlimited who is the party sought to be joined. It is against this ruling that the Plaintiff has appealed to this Court. As I stated earlier, the issue relevant to this appeal concerns the joinder of Texaco Overseas (Nigeria) Petroleum Unlimited. Learned Counsel for the Appellant conceded in the brief that the grant or refusal of an application for joinder is within the discretion of the trial Court and such discretion must be exercised judicially and judiciously. Learned Counsel faulted the reasoning which informed the trial Courts refusal to join TOPCON as a defendant. It was learned Counsel’s contention that the appellant had, to the knowledge of the trial Court, the respondent and its agents, been found to be in possession of the land which was the basis upon which the ex-parte and interlocutory injunctions were granted. As TOPCON was exercising rights inconsistent with the claim of the appellant, the latter can join TOPCON in the Suit inspite of the admission by the Respondent that it was responsible for the presence of TOPCON on the land in dispute. Another option open to the Appellant is to maintain an independent action against TOPCON in trepass. Learned Counsel finally submitted that whatever class of parties a person belongs (whether “necessary party” or “proper Party”) he could be joined under the general principles once it is shown that he has interest in the subject – matter of the suit and he is likely to be affected by the result of the action. He then cited EBONGO v. UWEMEDIMO (1995) 8 NWLR (Pt. 411)22 in support. He submitted that it will not be equitable, proper, just and right in law to allow TOPCON to continue to build on the land while the Court is being asked to determine the ownership of the same land. In the circumstances he argued the trial Court ought to have joined TOPCON as a party in the Suit pending before it and has therefore urged the Court of Appeal to order the joinder.

Learned Counsel in his reply submitted that the learned trial Judge was right in holding, as he did, that the presence of TOPCON as a party in the action was not necessary for the effectual and complete adjudication and determination of the issue to be resolved in the action which is the ownership of the land between the Appellant on the one part and Respondent on the other. He referred to the case of PEENOK INVESTMENTS LIMITED v HOTEL PRESIDENTIAL HOTEL LIMITED (1982) 12 SC 1 where the principle is stated that “the only reason which makes it necessary to make a person a party to an action is that the person should be bound by the result of the Suit and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party” and argued that the facts and circumstances of the instant case demonstrated that the presence of TOPCON on the land was known to the Appellant prior to the institution of the action. It is Counsel’s contention that the question as between the parties as to who has title to the land and whether the act of the Respondent working on and being in possession of the land either by itself or through privies constituted trespass can be effectually and completely determined in absence of the party sought to be joined since the interest of TOPCON is subsumed in the overall interest of the Respondent. On the exercise of discretion learned Counsel stated the law that if judicial discretion is exercised bonafide by a lower Court, uninfluenced by irrelevant consideration and not arbitrarily or illegally, an Appellate Court will not ordinarily interfere merely because it would have exercised the discretion differently. He argued that in the instant case, it has never been suggested that the learned trial Judge based the exercise of its discretion on extraneous matter to the issues before him or that he omitted to take relevant facts into consideration. Rather the learned trial Judge duly considered whether TOPCON’s occupation of the land as tenant of the Respondent is sufficient to make TOPCON a necessary party to the action. In doing this, learned Counsel contended, the learned trial Judge applied the principle of law that a person whose presence is not necessary for the effectual and complete adjudication of the issues involved in the case should not be joined as a party to the Suit. He submitted that this was proper exercise of the judicial discretion in the circumstances of the case which should not be interfered with as the learned trial Judge clearly appreciated the issues raised in the application for joinder and rightly resolved them before refusing the prayer for joinder.

To put the issue in this appeal in clear perspective, the application for joinder became necessary when the appellant failed to halt further development on the disputed land inspite of the interlocutory injunction he had earlier obtained “restraining the Defendant/Respondent by itself, its agents, servants, workmen and/or privies from further entering and/or further developing any property in the parcel of land measuring 10(ten) acres, lying situate at Umah Village along New Port Express Way, Ekpan pending the determination of the substantive Suit”.

To answer the questions earlier posed, it is necessary to state that under the law, 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: OSHO v. FOREIGN FINANCE CORPORATION (1991)4 NWLR (Pt.184) 157 at 188; KLIFCO LIMITED v. PHILIPP HOLZMANN A.G. (1996)3 NWLR (Pt. 436) 276.

The action of the Appellant against the Respondent is predicated on trespass as can be seen clearly in paragraphs 10, 11, 12, 13, 14 and 17 of the Statement of Claim wherein the Plaintiff pleaded thus:

“10. The Plaintiff avers that sometime in the year 1996, when he visited Delta State, he went to the land in issue on a routine check and discovered to his chagrin/shock that some persons had trespassed on a portion of the aforementioned land acquired by him.

11. The Plaintiff avers that upon enquiries made by him and his Solicitors, A. K. Asawota & Co., he discovered that it was the Defendant who was trespassing on a portion of the Plaintiff’s land.
12. The Defendant in continuation of his acts of trespass fenced in with a wall fence an area of land measuring about 10 acres earlier fenced by the Plaintiff with block walls.
13. The Plaintiff through his Solicitors met with representatives of the Defendant and had consultations/meetings with a view to prevailing on the Defendant to stop further acts of trespass on the land but all was to no avail and the Defendant started development on the said area trespassed upon.
14. The Plaintiff avers further that he instructed his Solicitors A.K. Asawota & Co. to institute an action against the Defendant in respect of the aforementioned portion of land trespassed upon by the Defendant. The Plaintiff’s Solicitors A. K. Asawota & Co. instituted an action against the Defendant and this Honourable Court granted upon the application of the Plaintiff an order of Interim Injunction and Interlocutory Injunction respectively against the Defendant by themselves (sic) their servants, agents and/or privies restraining them from further developing the area in issue but the Defendant continued development on the land in issue in defiance of the order of Court.
15. WHEREOF the Plaintiff claims against the Defendant as per the Writ of Summons”.

Against the backdrop by the Respondent admitting TOPCON on the disputed land as a tenant; any valid order made whether through an Interlocutory application or as a final order will be binding on TOPCON, the party sought to be joined since whatever right or interest TOPCON has on the disputed land is subject to that exercisable by the Respondent as TOPCON’s title is derivable from the Respondent. The Appellant’s failure to enforce the Interlocutory Injunction was not as a result of the non joinder of TOPCON in the action but it was due to the insufficient description of the boundaries of the disputed land. In any land Suit in which an injunction is being claimed, be it perpetual, interlocutory or interim, a Survey plan must either be filed, or the boundaries of the land described in such a way that a Surveyor could with reasonable certainty draw a plan from it.

See: ANABARONYE v. AKAIHE (1997) 1 NWLR (Pt.591) 437.

Despite the submissions made by learned Counsel for the Respondent that Injunction has to be tied to an ascertained land and not when the description of the land is vague, the learned trial Chief Judge merely referred to the place as well known to the parties and proceeded to state as follows:

“On the facts before me I exercise my discretion in favour of granting the Interlocutory Injunction now sought by the plaintiff/applicant and tied to the area fenced round and measuring about 10 acres”.

No Surveyor could with reasonable certainty draw a plan from the description of the land to which the Injunction is tied. It is little wonder that the Appellant could not invoke the coersive powers of the Court to commit either the Respondent or any of its agents or privies for contempt of Court when it flouted the Injunction and continued its development of the land. The learned trial Judge was therefore right in refusing to grant the order to join TOPCON as a defendant in the matter. The answers to all the four questions raised would no doubt be in the negative. The appeal therefore lacks merit and it is accordingly dismissed. I award N3,000.00 as costs to the Respondent against the Appellant.

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Other Citations: (2003)LCN/1339(CA)