HRH Alhaji Shehu Tijani Usman & Ors V. Chief S. Okaraga Lawal & Ors (2009)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
The Appellants were dissatisfied with the ruling/decision of the High Court of Kogi State; Obangede dated 30th April, 2008. The dissatisfaction was evinced in the Notice of Appeal dated 30th April, 2008 and filed after leave of the trial court was granted on 8th May, 2008. In the appeal the Applicants are seeking the intervention of this court in which their Fundamental Human Rights to fair hearing will be impeached if the refusal and/or failure of the trial court to join them in the case in which their vested right in the status/stool of the Paramount Ruler of the Ihima district in contest is allowed to stand.
The claims of the Claimant/Respondents herein are clear on the Statement of Claim which can be found on pages 1-9. The Claimants/Respondents represent one out of the six clans that are entitled to the stool of the Paramount ruler of Ihima District, yet it was claimed in paragraph 46 of the Statement of Claim as follows:-
“46. WHEREOF the Plaintiffs claim as follows:-
I. A declaration that the custom and tradition of Ihima group of villages, the Obobanyi of Ihima is the paramount ruler of Ihima District.
II. A Declaration that the purported re-designation/changing of the title of the 1st Plaintiff from Obobanyi of Ihima to Obobanyi of Emani by the defendants through a letter dated the 12th day of June, 2006 with reference Number DGO/LGCA/CHI/P/23/S together with the Kogi State Chiefs (appointment and deposition) Law 2006 is capricious, arbitrary, unconstitutional, null, void and of no effect whatsoever.
III. An Order setting aside/nullifying the letter together with item 34 in schedule II of the Kogi state chiefs Law which purported to change and or re-designate the 1st Plaintiff’s title from Obobanyi of Ihima to Obobanyi of Emani.
IV. An Order of perpetual Injunction restraining the defendants either by themselves, their servants, agents, privies or otherwise howsoever from interfering and or in any way tampering with the title of the 1st Plaintiff”.
FACTS:
The Kogi State Government in response to the yearnings of the people for the enhancement of the representation especially of the Kogi Central District to be at par with other Senatorial Districts in the State Council of Chiefs promulgated into law the Chiefs (Appointment, Deposition and Establishment of Traditional Councils in Kogi State) Law (hereinafter referred to as “The chiefs Law”). Also, as an important subsidiary/adjunct to that law, the State Government also promulgated vide Section 7 of the former the Creation/Establishment and Procedure for the Accession of the stool of Ohi Ebiraland Order 2008 (hereinafter simply referred to as: Order 2006″).
In the Order, the Paramount Ruler in the five Traditional Districts in Ebiraland were made First Class Chiefs and they are to be addressed as Ohi of their respective Districts which Districts are:- ADAVI, EGANYI, EIKA, IHIMA AND OKENGWE/OKENE.
By Section 5 of the Order, the stool of Ohi is to rotate among the constituent native Clans in each of the 5 Traditional districts. The Emani Clan to which the Claimants/Respondents belong is one of the six (6) Clans in Ihima District, while the Appellants belong to some of the other clans in the said Ihima district.
In the process of the promulgation of both the principal law and the subsidiary Order the stakeholders, including the Claimants/Respondents were consulted and it was decided by the Kogi State House of Assembly, 3rd Defendant/Respondent herein that the title of the 1st Claimant/Respondent be re-designated as Obobanyi of Emani while the title of Paramount ruler of Ihima district, be the Ohi of Ihima.
To demonstrate the consent and/or agreement of the 1st claimant/Respondent, he suggested the name of one of his biological sons, Mallam Siyaka Ojo (Abdulfatai Lawal), to be considered as one of the First set of Ohi, his Emani Clan having been given the concession.
When the Claimants/Respondents filed their Writ of Summons and Statement of Claim and proposed to change the title which has been promulgated by law as Obobanyi of Emani and even asked that the said Obobanyi be made the Paramount ruler of Ihima district, the suspicion arose that the entitlement of the other clans including the Appellants herein had been put on the line, they therefore applied to be joined in the Suit which the learned trial Judge thought was wrong, holding that sufficient materials were not placed before him for the grant of the application inspite of such documents amongst others, the Chiefs Law of 2006, the Order of 2006, Statement of defence, Affidavits and documentary evidence in support of the application.
On the 29/10/09 date of hearing, Mr. Ayodele learned counsel for the Appellant adopted their Brief filed on 7/10/08 and Reply Brief filed on 27/5/09. In the appellants’ Brief were formulated two issues for determination which are:-
1. Whether or not the trial court judicially and judiciously exercised its discretion properly in its consideration of the application by the Appellants herein to join the case before the Court.
2. Was the decision of the trial Court supported by the Rules of Court.
Mr. Aliyu, learned counsel for the 1st – 3rd Respondents adopted their Brief filed on 15/1/09 and deemed filed on 19/5/09. They also filed a Notice of Preliminary Objection on 15/10/09 which arguments are incorporated in the Brief. In the Brief was couched a single issue which is:-
Whether from a calm and careful consideration of the materials placed before the Trial Court, the learned trial Judge was right to have refused the applicants application for joinder.
For the 4th – 6th Respondents, Mr. Kadiri learned counsel on their behalf said they had not filed any Brief as they intend to maintain a neutral position.
However I shall tackle the Preliminary Objection before going into the appeal if the Objection fails.
NOTICE OF OBJECTION:
The 1st – 3rd Respondents said they are challenging the competence of Issue No. 2 as formulated by the Appellants as the issue did not arise from Ground 4 as contained in the Notice and Grounds of appeal. That a careful look at Ground 4 in the Notice and Grounds of appeal would show that the ground complained that the learned trial Judge did not properly exercise his discretion in that he did not use the contents of the proposed statement of defence filed by the applicants in his consideration of their application.
That the issue formulated by the Applicants however deals with whether the decision of the trial court was supported by the Rules of court.
Learned counsel contended that the question raised by the Ground of Appeal is different from the issue formulated by the Appellants and so that issue has been couched in vacuo and so should be struck out. He cited Nwanezie v. Idris (1993) 2 SCNJ 139; Idika v. Uzoukwu (2008) 9 NWLR (pt. 1091) 34 at 53.
In reply, in accordance with their Reply Brief learned counsel for the Appellants stated that the Ground 4 complained of, with the particulars are clear as to their purports which are to show that the claim by the learned trial Judge had no sufficient facts before him to grant the application was without any basis whatsoever. Also that the preliminary objection is equally incompetent because there was no Notice of same given as required by the Rules of this Court 2007. He cited Order 10 Rule 1; Esuruoso v. Ogidi (2002) FWLR (pt. 112) 85 at 98 – 99; G. Cappa Plc v. Abmie & sons Nig. Ltd. (2002) FWLR (pt. 95) 211- 413.
He submitted that this Preliminary Objection purportedly raised by the Respondents is on the above reasons frivolous, diversionary and inconsequential.
I shall recast the grounds of appeal while omitting the particulars and they are as follows:-
1. The learned trial judge erred in law and came to a perverse conclusion by holding that there are no sufficient materials brought before him to link the Applicants with the claims of the Claimants for the former to be joined as defendants.
2. The learned trial judge erred in law and in fact when he held that the Claims in the Statement of Claim did not concern the applicants before the Court to be joined as defendants.
3. The learned trial judge erred in law when he breached the fundamental Rights of the Applicants to fair hearing by refusing to join them in the case the result of which has to do with a vested right granted them by law.
4. The learned trial judge by refusing to grant the application to join the Applicants as co-defendants misdirected himself in law and failed to exercise his discretion judicially and judiciously.
It was contended by the Respondents that the Issue 2 couched by the Appellants were not flowing from ground 4 of the Grounds of appeal and so rendered the issue incompetent. To say the least this is a clear waste of time of this court as when ground four (4) was to the effect that the learned trial Judge failed to exercise his discretion judicially and judiciously that in effect meant that he went outside the Laws or Rules of Court to arrive at his decision and so it cannot be said that an issue formulated from that matter of judicially and judiciously exercising the discretion did not cover an attack specifically that Rules of court had not been followed. Also the Objector who is on about strict compliance with the rules did not follow his own advice since this objection was not brought as required by Order 10 Rule 1 of the Court of Appeal Rules 2007, no notice having being granted the Appellants of this objection. See Esuruoso v. Ogidi (2002) FWLR (pt. 112) 85 at 98; G. Cappa Plc v. Abmie & Sons Nig. Ltd (2002) FWLR (pt. 95) 211.
This preliminary objection is as appellants’ counsel observed frivolous, diversionary and lacking in merit and I do not hesitate in dismissing it and so the Objection is dismissed.
The Issue 1 of the Appellants adequately covers the necessary question in this appeal and I shall use it as a sole issue.
SOLE ISSUE:
Whether or not the trial Court judicially and judiciously exercised its discretion properly in its consideration of the application by the Appellants herein to join the case before the Court.
Mr. Ayodele, Learned Counsel for the Appellants submitted that by virtue of the Order of 2006, which created the stool of Ohi and made same to be the Paramount Ruler of Ihima district in Kogi Central District of Kogi State, the Appellants here who are representatives of the other clans which make up Ihima, have a legal right in the title of the Ohi of Ihima. That it was therefore wrong of the learned trial Judge to hold that no materials were placed before him to link the Appellants with the claims of the Claimants/Respondents. That it means that even if the trial court should close its eyes to the statement of Claim and the Statement of Defence filed in fulfillment of the provisions of the Rules of the trial court that it cannot be said there were no materials upon which the trial court could grant the application. He referred to Section 74 (1) (a) of the Evidence Act, Cap. 14; Ajayi v. Military Administrator Ondo State (1997) 5 NWLR (pt. 504) 237 at 271; Omaliko v. Awachie (2001) FWLR (pt.43) 269 at 285 – 286; Order 14 rule 17 (2) of the Kogi State (Civil Procedure) rules 2006; Ndayako v. Jikantoro (2005) 1 FWLR (pt.257) 867 at 892; Agbaisi v. Ebikofere (1997) 4 NWLR (pt. 502) 630 at 648.
Mr. Ayodele of counsel for Appellants further submitted that where it is established before the Court that an intervener or a proposed party has a legal right in a cause or matter before the court same ought to be joined as a necessary party. This is so notwithstanding that the Claimant has no intention of suing that party. That legal right, which is also called vested or adjudged right, has been defined/described in the Blacks Law Dictionary 6th Edition, which description has made it clear that not only the Government that is the Executive is saddled with responsibility of defending such rights, it must also be protected by the Courts. He cited Ojo v. Governor of Oyo State (1989) 1 NWLR (pt. 95) 1 at 22; Afolabi v. Ndayako v. Jikantoro (supra) 888.
Mr. Aliyu, learned counsel for the 1st – 3rd Respondents submitted that the first duty of a person who applies to be joined in an existing suit is to show that he claims some share or interest in the subject matter of the suit and this would be determined having recourse to the supporting affidavit to the application, the writ of summons and the statement of claim not defence. He cited Ojo v. Ogbe (2007) 9 NWLR (pt. 1040) 542 at 558 – 559 paras F – A. That as can be seen from those materials, the Plaintiffs’ case is predicated on the fact that their Clan created and occupied the Stool of Obobanyi of Ihima from time immemorial. That the Kogi State government, without, affording the Plaintiffs a hearing and without the following due process, decided to change this title to Obobanyi of Emani.
That on the other hand the case put forward by the Applicants at the Court below as seen in supporting affidavit is to the effect that they were entitled to ascend to the Stool of Ohi of Ihima – who is the Paramount Ruler of Ihima as such, they are interested parties to the Plaintiffs’ suit. That what has emerged is that while the Plaintiffs were complaining about the arbitrary change in their title from Obobanyi of Ihima to Obobanyi of Emani by the Kogi State Government without following due process, the applicants only concerned about the status of the title of Ohi of Ihima which was not an issue in the Plaintiffs’ action. Learned counsel for the Respondents 1st – 3rd stated further that the Stool of the Ohi of Ihima was not created as a replacement of the Stool of Obobanyi of Ihima and this can be gathered from the statutes creating the Stool. That the Ohi Stool of the Obobanyi of Ihima and the Plaintiffs are not asserting any claim to the title of Ohi. He referred to Lajumoke v. Doherty (1969) 1 NMLR 281 at 287.
Mr. Aliyu went on to say that the Ohi of Ihima is the Paramount ruler of Ihima and that the first leg of the Plaintiffs’ Claim seeks for a declaration that the 1st Plaintiff is the paramount ruler of Ihima. That assuming not conceded that this were to be so, the purported creation of the Ohi Stool was made by statute which statute purportedly made the Ohi to be the paramount ruler of Ihima. He said the Statute was not promulgated by the Applicants but by the Kogi State Government which law is now being challenged by the Plaintiffs and so it is that Government that would be affected by a determination of such question. He cited Peenok Investment Ltd. v. Hotel Presidential (1983) NCLR 122 at 141.
Learned Counsel for the 1st – 3rd Respondents stated that the right of being a paramount ruler as asserted by the Applicants is that the Ohi of Ihima is not that of the Applicants as none of them presently occupies the Stool of Ohi of Ihima. That the purported interest asserted by the applicants in their application for joinder is one not recognizable in law.
That the nature of interest that will warrant the joinder of a party to an existing action must be a current interest which has crystallized and exists and not a speculative interest that is dependent on the unlikely occurrence of a future event. He cited In Re Abaeha (2000) 5 NWLR (pt. 655) 50 at 68; Re Benson (2002) 1 NWLR (pt. 802) 570 at 587; Yakubu v. Governor of Kogi State (1995) 8 NWLR (pt. 414) 386 at 403; Green v. Green (2001) FWLR (pt. 76) 795 at 815; Oriarie v. Government of Western (1971) All NLR 139 at 141.
Learned Counsel for the Appellants further contended that the rule and Procedure for joining parties as Defendants are specially provided for in the rules of the trial Court, Order 14 Rule 16 (3) which is in pari material with Order 16 Rule 11 Rules of the Supreme Court of England which Rule of Court was considered in the cases of Hamon v. Raphael Tuck and Sons Ltd. (1959) 1 All ER 273; Yakubu v. Governor of Kogi State (1995) NWLR (pt. 414) 386 at 402 – 403.
That the legal rights or interests of the Appellants to the title of the paramount stool in Ihima District which they are entitled to have preserved will be adversely affected if the case is completed without their being joined especially since they will be bound by the outcome of the case. He referred to Attorney General of Federation v. Attorney General of Abia State (2001) 11 NWLR (pt. 725) 689 at 745 – 746; Bismillahi v. Yagba East Local Government (2003) 4 NWLR (pt. 810) 329 at 357.
He stated on that the documents attached to the Statement of Defence whereby the 1st Complainant, Chief Siyaka Okaraga Lawal suggested Mallam Siyaka Ojo Abdufatai his own biological Son who contested with another member of the Emani clan to which they all belong for the position of Ohi of Ihima which is by law the paramount ruler of Ihima show that this joinder ought to be granted in the interest of the right to fair hearing so that the Appellants are heard before decisions that would affect them are taken. He cited Kwara State Polytechnic v. Adefila (2007) 3 FWLR (pt.375) 3839; Sadar v. Ridelliegh (1931) 1 Ch.301 at 303; Ukaegbu v. Ugoji (1991) 6 NWLR (pt. 196) 127; Gurtner v. Circuit (1968) 2 QBD 587; Eco Consult Ltd. v. Panco Villa Ltd. (2000) 3 NWLR (pt. 647) 141; FMB v. Adu (2000) 11 NWLR (pt. 678) 309; Ogundoyin v. Adeyemi (2001) 13 NWLR (pt.730) 403.
In response, Mr. Aliyu for 1st – 3rd Respondents contended that an application for joinder will be refused when the court is satisfied that the case could be effectually determined without ordering a joinder, whether such a person shall be bound by the result of the proceedings and whether he has a legal interest in the proceedings and if these questions are answered in the affirmative the application will be granted. He referred to Onyenucheya v. Military Administrator Imo State (1997) 1 NWLR (pt. 482) 429 at 450; Ige v. Farinde (1994) 7 NWLR (pt. 354) 42 at 65 – 66; Funduk v. Mcarthur In Re Madaki (1996) 7 NWLR (pt.459) 153; Yakubu v. Governor of Kogi State (1995) 8 NWLR (pt.414); LSPDC v. Foreign Finance (1987) 1 NWLR (pt. 50) 43, Klifco v. Holzman (1996) 3 NWLR (pt. 436).
Mr. Aliyu further stated that the exercise of discretion of the Court below was properly made and this Court ought not to interfere without any material backing that interference. He cited Menakaya v. Menakaya (2001) 9 SCNJ 1 at 33; Jimoh v. C.O.P. (2004) 17 NWLR (pt. 902) 389 at 405.
Having stated the summary of the submissions of counsel on either side I shall have a recourse to the guiding light as shown in decided authorities especially that of the Apex Court.
In Re Mogaji (1986) 1 NWLR (pt. 19) 759 Held by the Supreme Court.
1. The power of a trial judge to join a person as a party to a suit is discretionary and except he proceeded on a wrong principle, an Appeal Court will be reluctant to interfere.
2. The two co-existing conditions for granting a joinder applications under Order 7 Rule 10 (2) of Oyo State High court are:-
(a) The Plaintiff or defendant ought to have been joined in the first instance.
(b) The joinder of the party as plaintiff or defendant is necessary to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter.
3. For the Court to have jurisdiction to join a person as a defendant, the plaintiff must have a claim against the person seeking to bejoined thence, where there is no such claim against the person sought to be joined, there can be no jurisdiction to make the order.
4. A person sought to bejoined as a defendant should have the same interest as the existing defendants
5. A person can bejoined as a defendant against the wishes of a plaintiff if
(a) when the justice of the matter demands that the party has to bejoined before the case can be properly determined.
(b) where the plaintiff’s case or the defendant’s case in the existing action cannot be effectually and completely determined without the joinder.
6. The Court is always reluctant to allow ajoinder where the joinder is not being sought by an intervener nor is it being sought by the plaintiff in the action.
7. The court can grant ajoinder application at any time if it is necessary.
8. 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 the litigation.
9. Ordinarily or usually, the Court will not compel a plaintiff to proceed against a party he has no desire to see.
Necessary parties are those persons who must be joined in an action because inter alia, complete relief cannot be given to those already parties without their joinder. They are those persons who have such an interest in controversy that a final judgment or Decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final adjudication may be wholly inconsistent with equity and good conscience. See Taiwo v. Abdul (2006) 2 FWLR (pt. 309) 2116.
A “necessary party” to a proceeding is a party whose presence is essential for the effectual and complete determination of the claim before the court. It is the party in the absence of whom the claim cannot be effectually and completely determined. In Re Abacha (2000) 5 NWLR (pt. 655) 50 at 72, 73 (CA); Ige v. Farinde (1994) 7 NWLR (pt.354) 42; Uku v. Okumagba (1974) 1 All NLR (pt. 1) 475; Anabaronye v. Nwakaihe (1997) 1 NWLR (pt. 482) 374 at 381; Awani v. Erejuwa (1976) 11 SC 307.
A person having an interest in a matter means a person who has suffered a legal grievance, a man against whom a decision has been made which has wrongfully deprived him of something or wrongfully refused him something affecting his title. Such interest must be genuine and legally recognizable interest in respect of a decision which prejudicially affects such interest.
The tests of sufficient interest to determine a party interested in a matter are:-
(a) whether the person could have been joined as a party to the suit;
(b) whether the party seeking for the redress or remedy will suffer some fundamental injury or hardship arising directly from the litigation. Per Adekeye JCA (as she then was). In Re Benson (2002) 1 NWLR (pt 802) 570; Section 243 of the 1999 Constitution.
Raji Oriare v. Government of Western Nigeria & ors (1971) All NLR 139 per Ademola CJN.
In the application of the rules about joinder the test applicable is this: will the order for which the Plaintiff is asking directly affect the intervener in the enjoyment of his legal right.
The only reason which makes it necessary to make a person a party to an action is that such a person should be bound by the result of the action and the question to be settled, stated differently there must be a question in the action which cannot be effectually and completely settled unless such a person is a party, It is for those reasons that the application for joinder ought not to be taken lightly but must be given due consideration.
A party proposing to join or be joined in an existing action must have a direct or advantage of the rule. It is not enough that he has an indirect interest. A person legally interested if the answer to the question in issue may curtail his rights.
For a fact a party who will be affected by the result of a judicial inquiry must be given an opportunity of being heard, otherwise, the action taken following the inquiry will be unconstitutional and illegal. Ogundoyin v. Adeyemi (2001) 13 NWLR (pt. 730) 403 at 423 (SC); Akande v. State (1988) 3 NWLR (pt. 85) 681; Yakubu v. Governor of Kogi State (1995) 386; Ikonne v. COP (1986) 4 NWLR (pt.36) 473.
A party can be joined as a party against the wishes of the Plaintiff if the justice of the matter demands the joinder before the case can be properly determined or where the Plaintiff’s case or the Defendant’s case cannot be effectually and completely determined without the joinder U.B.A. v. Akparabong Commercial Bank (2005) 4 FWLR (pt. 279) 179 at 196 per Omokri JCA.
The right to fair hearing is fundamental to our laws and judicial system. A person whose right and interests are likely to be affected by a decision must be heard before a decision is taken. Ecoconsult Ltd. v. Pancho Villa Ltd. (2000) 3 NWLR (pt. 647) 141 at 148 – 149 per Galadima JCA.
The test whether under the relevant rule of court dealing with joinder of parties the court has jurisdiction to add as a defendant a person whom the plaintiff did not wish to sue is whether the order which the plaintiff is asking in the action might directly affect the person seeking or proposed to be added as a party by curtailing the enjoyment of his legal rights. Yakubu v. Governor Kogi State (1995) 8 NWLR (pt. 414) 386 SC.
Unless and until an Appellant is joined as a party to the substantive suit, he has no locus standi to appeal against the ruling in which he was not a party unless with the leave of the court. A person who is not a party to an application cannot appeal against the Ruling in the application. U.B.A v. Akparabong Commercial Bank (2005) 4 FWLR (pt. 279) 179 at 190 per Omokri JCA; Ogunbiyi v. Ishola (1996) 9 NWLR (pt. 470) 101; Afezioha v. Nwokoro (1999) 8 NWLR (pt. 615) 343 and Nwidenyi v. Aleke (1996) 4 NWLR (pt. 442) 349.The only reason which might render the presence of a party before the court to be necessary to enable the court to adjudicate completely within the meaning of the rule was that he should be bound by the result of the proceedings. Yakubu v. Governor Kogi State (1995) 8 NWLR (pt. 414) 386 at 402.
In Re: Madaki (1996) 7 NWLR (pt. 459) 153 it was held:-
Where a party obtains leave to appeal as an interested party, he is required to appeal within the time prescribed by Section 25 of the Court of Appeal Act, 1976. Failure to do so whether as a result of lateness to obtain the necessary leave under Section 222 of the 1979 Constitution or for whatever reason will entail the making of an application to the Court of Appeal for extension of time to appeal. Also where the proposed ground of appeal raises a question of fact or mixed law and fact, an application for leave to appeal under Section 221 would have to be brought within the time prescribed by Section 25 of the Court of Appeal Act 1976. If the prescribed time expired before such application is made then it becomes necessary to apply for:-
(a) enlargement of time to seek leave to appeal
(b) leave to appeal; and
(c) extension of time within which to appeal.
Amudipe v. Arijodi (1978) 9 – 10 SC 27; Lamai v. Orbih (1980)
5 – 7 SC 28; Atanda v. Olanrewaju (1988) 4 NWLR (pt. 89) 394;
Owoniboys Technical Services Ltd. v. John Holt ltd. (1991) 6
NWLR (pt. 199) 550; Iroegbu v. Okwordu (1990) 6 NWLR (pt.159) 643;
Odofin v. Agu (1992) 3 NWLR (pt. 229) 350;
Bowaje v. Adediwura (1976) 6 SC 143.
Non-joinder or misjoinder of a party is not fatal to a suit; the defect in each being amenable in the manner provided in the Rules. The error may be amended by either party to the proceedings or a third party having interest in the suit or by the court, on an application to it, or on its own motion. The court therefore has jurisdiction to join a person whose presence is necessary for the prescribed purpose of effectually and completely adjudicating upon and settling all questions involved in the cause or matter before it. Non-joinder of a party in a suit cannot render the judgment of the court a nullity, joinder of the necessary party can be ordered and the decision set aside to allow the trial court hear all the parties. Per Augie JCA Taiwo v. Abdul (2006) 2 FWLR (pt. 308) 2116 at 2132 – 2133; Ige v. Farinde (2003) 7 NWLR(pt. 818) 42 SC.
There has always been the note of warning that it is improper to have joined as co-defendants on the action persons against whom the plaintiff had no cause of action and made no claim and whose interest is adverse to that of the defendant, Aromire & ors v. Awoyemi (1972) All NLR 105 per Coker JSC.
Although rules of court are meant to be obeyed, where strict compliance with the rules will lead to injustice, the rules should be abandoned in favour of doing substantial justice. One of the welcome changes that have taken place in Nigerian courts is the shift from technical justice to substantial justice. Salami v. Bunginimi (1998) 9 NWLR (pt.565) 235 at 243 per Muhammed JCA. Dantsoho v. Mohammed (2003) 6 NWLR (pt. 817) 457 SC.
Where there is no complaint against a party in a suit, the non-joinder of that party will not affect the proper determination of the issues joined.
Idakwo v. Ilona (1998) 3 NWLR (pt. 541) 315 at 328 per Kalgo JCA(as he then was). A court of law is bound, and cannot refuse or neglect to take judicial notice of a legislation relevant to an issue in controversy before it and for this it need not be pleaded. Finnih v. Imade (1992) 1 NWLR (pt. 219) 511 at 542; Idakwo v. Ilona (1998) 3 NWLR (pt 541) 315 at 328.
A judicial discretion properly exercised by a court will not generally be set aside by an appellate court even if that court was of the opinion that it might have exercised the discretion differently. The court will interfere only when a trial court or a Lower Court exercised its discretion upon wrong principles or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice, in order to correct or prevent injustice. Jimoh v. C.O.P. (2004) 17 NWLR (pt. 902) 389 at 405 per Onnoghen JCA (as he then was); Kudoro v. Alaka (1956) SCNLR 255; Williams v. Williams (1987) 2 NWLR (pt. 54) 66; Saraki v. Kotoye (1990) 4 NWLR (pt. 143) 144; Odusote v. Odusote (1971) NMLR 228; Ngwu v. Onuigbo (1999) 13 NWLR (pt. 636) 512.
Having considered the materials before me and the pointers from decided authorities relevant to the case in hand, there is no gain saying that indeed the application for joinder subject of this appeal meets the conditions upon which the Court is so to speak obligated to grant the application as the issue on ground cannot be effectually and completely decided in the absence of the Appellants. At least to avert a multiplicity of other suits that could ensue to address some of the nagging questions that are embedded right now in the original suit or might be thrown up after that suit has been decided. From the Claim at paragraph 46(1), the Plaintiffs contend that by the custom and tradition of Ihima group of villages, the Obobanyi of Ihima is the paramount ruler of Ihima District.
The Applicants are coming from the point that the Ohi of Ihima is the paramount ruler of Ihima District, therefore the case of the Plaintiffs and defended by the Defendants cannot be effectually and completely determined in the absence of the voice of the Applicants/Appellants being heard since their interest cannot be overlooked. Furthermore it would be difficult for the ensuing orders at the end of trial not to affect the Appellants who would be expected to obey or comply with whatever is required. I find it really not easy to understand the reluctance of the learned trial judge to join the Applicants/Appellants as there is not a dearth of materials from which it can be clearly seen that there is a necessity that the Appellants are joined for the completeness and finality with which the issues disturbing the parties are determined. The following cases have been followed:-
In Re Mogaji (1986) 1 NWLR (pt 19) 759; Taiwo v. Abdul (2006) 2 FWLR (pt. 309) 2116;
In Re Abaeha (2000) 5 NWLR (pt. 655) 50 at 72; Ige v. Forinde (1994) 7 NWLR (pt. 354) 42;
In Re Benson (2007) 1 NWLR (pt. 802) 570 at 584; Green v. Green (1987) 3 NWLR (pt. 61) 480.
This appeal has merit and is allowed. I set aside the decision of the trial High Court and order that the Appellants be joined as necessary parties, as defendants.
Parties to bear own costs.
Other Citations: (2009)LCN/3474(CA)
