Mr. Michael Agbekoni V. Alhaji Ibrahim A. Kareem (2007)
LawGlobal-Hub Lead Judgment Report
JUMMAI HANNATU SANKEY,J.C.A.
The Respondent herein, Alhaji Ibrahim A. Kareem, instituted an action at the Customary Court, Emure Ekiti, Ekiti State against the Appellant, Mr. Michael Agbekoni and one other penson seeking the following reliefs:
- A DECLARATION that the Late Giwa Agbekoni family is made up for three (3) sections represented by (1) Michael, Agbekoni (2) Alhaji Ibrahim (3) Olaniyi Ogbaji.
- A DECLARATION that the three sections of the family as set out above are entitled to inherit the properties left behind by the Late Giwa Agbekoni.
- An ORDER OF PARTITION of the cocoa plantation left behind by the Late Giwa Agbekoni between the three (3) sections of the family viz: (1) Michael Agbekoni (2) Alhaji Ibrahim A. Kareem and (3) Olaniyi Ogbaji.
The cocoa plantation mentioned above is situate, lying and being, at Oke-Egan Farm, Eporo Ekiti and is bounded as follows:-
On the first side by Pa Dare Cocoa Plantation
On the second side by Pa Dare Cocoa Plantation
On the third side by Pa Adua and Mama Lydia Cocoa Plantations
On the fourth side by Emmanuel Adelugba’s cocoa plantation
On the fifth side by Visa Maliki’s cocoa plantation
On the sixth side by Abdulkareem Usman’s cocoa: plantation.
- An ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant from further working and/or harvesting crops from the above described farm.
The annual value of the said farm is N500 (Five Hundred Naira only).
The facts of the case are that the Appellant, the Respondent and one Olaniyi Ogbaji are child and grandchildren respectively of Late Giwa Agbekoni. The Late Giwa Agbekoni had two other siblings. Both the Respondent and Olaniyi Ogbaji are children of Giwal Agbekoni’s sisters, while the Appellant was his son. The crux of the Respondent’s claim at the lower Customary Court was that both the male and female children of the late Giwa Agbekoni are entitled to inherit his property by the Yoruba tradition of the area where the land in dispute is situate, i.e. at Emure Ekiti. The Plaintiff testified and called one witness, while the 1st and 2nd Defendants also testified and called one witness. Thereafter, the Court visited the land in dispute and made its observations. At the close of trial, the trial Customary Court found in favour of the Plaintiff in these terms at pages 37-38 of the record of proceedings:
‘The declaration sought in the Plaintiff’s claim is (sic) therefore succeeds and it is hereby granted (sic) and for the avoidance of doubts it is therefore granted as follows:-
I. A declaration that the late Giwa Agbekoni family is made up of 3 sections represented by (J) Michael Agbekoni (2) Alhaji Ibrahim A. Kareem (3) Olaniyi Ogbaji is hereby granted.
II. A declaration that the three (3) sections of the family has (sic) set out in leg – one of the Plaintiff’s claim that they are entitled to inherit the properties left behind by the late Giwa Agbekoni is granted.
III. The leg three (3) of the Plaintiff’s amended (sic) since the third branch of the family that is Olaniyi Ogbaji are apparently not interest at deducible from the evidence of both the Plaintiff and the 1st defendant who both gave evidence to the effect that the 3rd branch are aware of this court case but choose not to take part and show up during the trial of this case before this court. This court will not grant to a party (sic) what he never asked for. Therefore the partitioning of the cocoa plantation is to be made between the Plaintiff and the first defendant.
VII. The 2nd defendant in this case Mr. Mohammed Zakari is hereby discharge and his name is therefore struck out from the cause list of this court forthwith. ”
Dissatisfied with this decision, the Appellant lst Defendant appealed to the High Court in its appellate jurisdiction on six grounds as follows:
(1) The lower court erred in law by ordering partition of the cocoa farm land when the boundaries of the cocoa farm land are not certain and this has occasioned a miscarriage of justice.
(2) The lower court erred in law by not affording the appellant or his counsel an opportunity to cross-examine the Plaintiff’s witness and this has occasioned a miscarriage of justice and amounted to a breach of the principles of fair hearing.
(3) The lower court erred in la (sic) by its failure to dismiss Plaintiff’s claim in its entirety when he failed to join all necessary parties to the suit and this has occasioned a miscarriage of justice.
(4) The lower court erred in law in leaving out the 3rd section of Late Giwa Agbekoni in the sharing of the cocoa farm land.
(5) The lower court erred in law by its failure to demarcate the appellant’s cocoa farmland from the intestate estate of late Giwa Agbekoni and this has occasioned a miscarriage of justice.
(6) The lower court erred in law by suo motu amending the Plaintiff’s claim without giving the parties in the suit or their counsel opportunity to address on that issue, thus giving to the Plaintiff what he did not ask for and this has occasioned a miscarriage of Justice.
The appeal failed on all grounds and was dismissed. The lower Court found inter alias follows at page 65-70:
“It was also the findings of the trial Court that there are three sections of late Giwa Agbekoni family. However it was the view of the court that Olaniyi Ogbaji did not show any interest in the case and therefore ordered that the cocoa farm land be partitioned between the Plaintiff and the first defendant leaving out Olaniyi Ogbaji. It was the contention of learned Counsel that the failure to join Olaniyi Ogbaji deprived the lower Court the competence and jurisdiction to try the case. This in my view does not represent the true position of the law… It is the claim before the customary court that conferred jurisdiction on it. From the case before the court, the Plaintiff has locus stand to institute the action and the court has jurisdiction to entertain it. From the nature of evidence before the trial Court, the case can be effectively and properly determined without joining Olaniyi Ogbaji who is equally a grandchild like the Plaintiff. The Plaintiff and Olaniyi Ogbaji have equal status in the case. Whatever affects the Plaintiff/Respondent will equally affect Olaniyi Ogbaji. It may not be necessary therefore to join Olaniyi Ogbaji especially when the Plaintiff had already sought the order of the court for the sharing of the cocoa farm among the three branches including the branch of Olaniyi Ogbaji. In the case of Ayorinde V Oni (Supra) it was further held that where the nature of evidence before the court is such that the case of the parties can be determined in the absence of those not joined, it can proceed to do so. It is settled law that an action cannot be defeated on the grounds of non-joinder or misjoinder. See Anakoya V Olukoya (Supra).
On the whole, this appeal fails and is accordingly dismissed.”
By virtue of Sections 46 and 60 of the Customary Courts law of Ondo State as applicable to Ekiti State, the Emure Ekiti High Court varied the Judgment of the Customary Court of Emure Ekiti by then ordering the partitioning of the Cocoa Plantation to the three branches of the Giwa Agbekoni family, notwithstanding the third branch’s lack of expressed interest in the sharing of the said Cocoa Plantation.
Being still aggrieved, the Appellant has again appealed to this Court, His Notice of Appeal dated 10th November, 2003 consists of only one ground. The ground of appeal and its particulars state as follows:
“The lower Court erred in law by its failure to dismiss the respondent’s claims in their entirely (Sic) when the respondent failed to join all the necessary parties to the suit and this has occasioned a miscarriage of justice.
PARTICULARS OF ERROR.
(a) Late Giwa Agbekoni had three branches namely, Michael Agbekoni i.e. the appellant; Alhaji Ibrahim A. Kareem i.e. the respondent and Olaniyi Ogbaji;
(b) Respondent in his claim failed to join as a party the third branch of late Giwa Agbekoni i.e. Olaniyi Ogbaji’s branch;
(c) The third section had no notice of the respondent’s claim;
(d) The lower court ought to have dismissed the plaintiff’s claim.”
At the hearing of the Appeal on the 17th May, 2007, learned Counsel for the Appellant, Mr. Omotoso, adopted the Appellant’s Brief of Argument dated 17th October, 2006 and filed on 18th October, 2006. He urged the Court to allow the Appeal and set aside the decision of the trialCourt.
On his own part, Mr. Kolawole, learned Counsel for the Respondent, also adopted the Respondent’s Brief of Argument dated 27th March, 2007 and filed on 28th March, 2007. He urged the Court to dismiss the Appeal with substantial costs.
In his Brief of Argument, the Appellant formulated only one issue for the determination of this Court as follows:
Whether the lower Court was not in error in failing to strike out the respondent’s action for his failure to bring all proper and necessary parties to Court.
Learned Counsel for the Appellant submitted that Olaniyi Ogbaji is a necessary party in the sense that his presence is necessary and the case could not be effectively and effectually determined or fairly dealt with in his absence, more so that he is directly affected by the order of the Court. He submitted that it is only after the necessary party has been put on notice that the court would be competent to entertain the application.
Oboroh V Oghuvwu (2003) 3 NWLR (Pt. 647) 120 at 128 F-C. He contended that Olaniyi Ogbaji is a necessary party and the issue of who is entitled to inherit late Giwa Agbekoni’s intestate estate cannot be resolved effectively and effectually unless he is made a party. He relied on Sosanya V Onadeko (2000) 11 NWLR (Pt. 677) 34 at 58-59, E; Re:
Mbamalu (2000) 18 NWLR (Pt. 744) 143 at 13 C-H; Ojukwu V Ojukwu(2002) 11 NWLR ((Pt. 677) 65 at 92, C-D.
He submitted further that it is the duty of the Plaintiff to bring to Court a party whose presence is crucial to the resolution of the case. He also contended that the Court will not make an order or give a Judgment that will affect the interest or right of a person or body that is not a party to the case and who was never heard in the matter. He relied on Ekpere V Aforije (1972) 1 ALL NLR (Pt 1) 220; Maikori V Lere (1992) 3 NWLR (Pt, 231) 525, Learned Counsel finally submitted that the failure of the Respondent to join all necessary parties to the case renders the action incompetent. He urged the Court to allow the Appeal, set aside the decision of the lower Court and order a retrial of the action.
On his own part, learned Counsel for the Respondent adopted the sole issue formulated by the Appellant. He submitted that it is not totally correct to say that the third branch of the family, i.e. the Olaniyi Branch, was not a party to the claim, He contended that this is because, by the claim of the Respondent at the Customary Court, Olaniyi Ogbaji, the third Branch of the late Giwa Agbekoni Family, was conspicuously and unambiguously included in the claim. He contends that there was uncontroverted evidence from both parties that the three Branches existed and that they are entitled to the claims. He submitted that it is the claim of the Plaintiff that determines jurisdiction, and since the name of the third branch forms part of the claim, the action is properly constituted and cannot therefore be struck out. He relied on Adama V Anaja (2004) 2 NWLR (Pt. 858) 457 at 477; Osun State Government V Danlami Nigeria Ltd (2003) 7 NWLR (Pt, 818) 72 at 96- 98.
Learned Counsel submitted that since the complaint of the Appellant is that the suit cannot be properly determined without the presence of Olaniyi Ogbaji, he ought to have applied for the joinder of three branches of the family, In his evidence before the trial Court, the Respondent, as Plaintiff, described extensively the family relationship between the three branches of the family and how they came to be off shoots of the late Giwa Agbekoni family, He also testified that the reason why the Appellant had denied Olaniyi and himself a share of late Giwa Agbekoni’s Cocoa Plantation as offspring of female siblings is because he was applying the Government Area culture of the Makeke people of Akoko-Edo Local Government Area of Edo State, Meanwhile, the Elepero of Ikere-Ekiti, covering the area where the Plantation is situate, once had cause to explain to the Police, (when the Respondent caused the arrest of members of the other branches), that the custom at Ikere-Ekiti is that both male and female members of the family are entitled to the properties left by their parents, (See pages 3-4 of the record), PW2 also testified that both the Plaintiff’s mother and Mama Olaniyi inherited the property of their father, Giwa Agbekoni, after his demise and have worked on the disputed farm, (See pages 5-6 of the record). On the part of the Appellant, he agreed that both the Respondent and Olaniyi are the children of his deceased sisters, Titi and Echesomo, who were also daughters of the late Giwa Agbekoni. He however insisted on the application of the Makeke law and custom of Edo State, which he stated did not permit the sharing of the land with his female siblings whom the Respondent and Olaniyi are offshoots of Nevertheless, he acknowledged that, by the Eporo-Ekiti custom, the Respondent’s mother has the right to share in her father’s property. He further contended that the Respondent may not have had the authority of Olaniyi to institute the action as Olaniyi does not seek that the land be shared. (See pages 7-9 of the record. In its findings, the trial Customary Court held that since the Cocoa Plantation is situate and lying in Eporo-Ekiti in Ekiti State and not in Makeke in Edo State, where both the Appellant and Respondent hail from, it is the lex situs that is applicable to the suit, which is the custom of, Eporo, being Yoruba Customary law and not Makeke Customary law, (See page 33 of the record). He therefore went ahead to partition the farm between the Appellant and the Respondent.
As stated earlier, the High Court sitting in its appellate jurisdiction partially upheld this decision, However, invoking its powers under Sections 46 and 60 of the Customary Courts Law of Ondo State as applicable to Ekiti State, it varied the orders of the trial Court by ordering instead that the Cocoa Plantation be partitioned among the three branches that make up the Giwa Agbekoni family, i.e., between the Appellant, the Respondent and Olaniyi Ogbaji. Citing the Supreme Court decision in the case of Okwueze V Okwueze (1989) 3 NWLR (Pt. 109) 311 wherein the case of Ekpenyong V Ekpenyong (1975) 2 SC was referred to, the lower court held inter alia thus:
“Considering the circumstances of this case, I am however of the view that since it was established before the lower Court that the family of late Giwa Agbekoni are made up of three branches and it was art (sic) of the reliefs sought by the Plaintiff in the lower Court that the cocoa farm be divided into three, the lower court should have granted the relief by ordering partitioning among the three branches whether or not the third branch was interested. .. In view of the evidence before the lower Court, the justice of the case demands that the cocoa farm be partitioned among the three branches that made up late Giwa Agbekoni family. ”
Now, by the sole Ground of Appeal before us, the Appellant has not appealed against the decision of the lower Court in including the Olaniyi Ogbaji branch in the partitioning of the Cocoa, Plantation. What he complains about is that the said Olaniyi Ogbaji, being a necessary party to the suit was not joined as a party and so the, lower Court ought to have out-rightly dismissed the Plaintiff’s claim. This takes us to a consideration of the law on the subject.
The law has long been settled that where an action is properly constituted, with a Plaintiff possessing the legal capacity to bring the action, a Defendant with a capacity to defend, a claim with a cause of action against the Defendants, and the action itself having satisfied all preconditions necessary for instituting the action, the fact that a necessary party to the action has not been joined is not fatal to the action and will not render the action a nullity. In other words, where a necessary party to an action has not been joined, the non-joinder will not render the Judgment a nullity. This is so because the failure to join a necessary party is a procedural irregularity, which does not affect the competence or jurisdiction of the Court to entertain the matter before it. This is the general rule. However, the exception is where the irregularity leads to unfairness or injustice to the other party, the Judgment may be set aside on appeal. See Ayorinde V Oni (2000) 3 NWLR (Pt. 649) 348, Oladeinde & Anor. V. Oduwale (1962) WNLR 42. In the case af Ayorinde V Oni (Supra), Karibi- Whyte, JSC, stated thus at pages 368-369 of the report:
”Where the nature of the evidence before the Court is such that the case of the parties before it can be determined in the absence of parties not joined, it can proceed to do so. It is only in those cases where it will not be right and the Court can not properly determine the issues before it in the absence of the parties whose participation in the proceeding is essential for the proper, effectual and complete determination of the issues before it, will it be necessary to insist on the joinder of such necessary parties. See Uku V Okumagba (1974) 3 SC 35; Peenok V Hotel Presidential Ltd (1982) 12 SC 1; Green V Green (1987) 3 NWLR (Pt. 61) 480. ”
Again, this Court, in the case of Oduwole V Lagos State Property Development Corporation (2004) 9 NWLR.(Pt. 878) 382, per Onalaja, J.C.A., held that no action shall be defeated by reason of the mis-joinder or non-joinder of parties and the Court may, in every cause or matter, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Thus, failure to join a necessary party to a proceeding is not fatal to the proceeding and the Court may, determine the issues or question in dispute so far as regards the rights of the parties actually before it.
Applying the law to the facts of this case, there is no gainsaying the fact that Olaniyi Ogbaji is a necessary, party to this case. Right from the onset, the Respondent himself had disclosed this fact in his claim as well as his testimony before the trial Court. Indeed, he had even made Olaniyi Ogbaji a co-traveler with him in the claim against the Appellant, such that the latter would benefit should the Respondent succeed in his claim.
And this is exactly what happened. The Respondent, claimed that the Cocoa Plantation be shared in three ways amongst the Appellant, Olaniyi Ogbaji and himself. Even though the trial Court declined to grant this prayer, the lower Court varied the findings of the trial Court to grant the Respondent this relief. Nevertheless, notwithstanding the fact Olaniyi Ogbaji was a necessary party to the case, the action was properly constituted and the trial Court possessed the competence to entertain the suit. Therefore, the non-joinder of Olaniyi Ogbaji by itself, being a procedural irregularity, cannot serve to render the suit a nullity. What the Appellant must show in order to be entitled to such an order is that this irregularity, i.e. the failure to join Olaniyi Ogbaji, led to unfairness to him or occasioned a miscarriage of justice in some way. The Appellant has made no pretence at showing how the failure to join Olaniyi Ogbaji affected either him, or even Olaniyi, negatively. Olaniyi himself, whom the trial Court found was aware of the suit but had not applied to be joined, has not complained about the action of the Respondent in proceeding in this matter without him nor against the Judgment of the lower Court, which favoured him. What then exactly is the grouse of the Appellant in this Appeal? I am tempted to agree with the learned Counsel for the Respondent when he submitted that this is a case of the Appellant being more Catholic than the Pope, and lamenting, wailing or crying much louder than the bereaved, It could also be classic case of sour grapes.
The Judgment of the lower Court cannot be set aside merely on the ground of non-joinder where the case is properly constituted with a Plaintiff possessing the legal capacity to bring the action, the Defendant with a legal capacity to defend the action and a proper cause of action before a Court; which is properly constituted and possesses the jurisdiction to entertain the action, The Appellant is required to go one step further, and that is, to show that the non-joinder occasioned a miscarriage of justice. It is my finding that this he has woefully failed to do. There is therefore no reason to disturb the findings of the lower Court.
It is for all the reasons stated above that I find no merit in the Appeal. It is accordingly dismissed with costs of N10, 000.00 against the Appellant and in favour of the Respondent.
Other Citations: (2007)LCN/2479(CA)
