Obichukwu Anumba & Anor V. Venerable J. O. I. Nweke & Anor (2016)
LawGlobal-Hub Lead Judgment Report
RITA NOSAKHARE PEMU, J.C.A.
This is an Appeal against the Ruling of Hon. Justice E. C. Anulude of the High Court of Justice, Otuocha, Anambra State in suit No. OT/78/2012, which Ruling was delivered on the 6th day of March, 2013.
SYNOPSIS OF FACTS
In Suit No OT/78/2012, the Appellants (who were Plaintiffs at the lower Court) instituted an action against the Respondents on record, for declaration of title to land, described as Isingwu land; an order for injunction, and General damages.
The Respondents then prayed the Court for an order striking out their names from the Suit as defendants, and for a further order joining the Registered Trustees of the synod of the Diocese on the Niger.
The learned trial Judge, after considering the application, granted it as prayed.
The Appellants are dissatisfied with this Ruling and have appealed it.
Pursuant to the Practice Direction of this Honourable Court, they filed a Notice of Appeal on the 20th of March 2013, encapsulating four (4 Grounds of Appeal) – Pages 106-112 of the Record of Appeal. The Ruling of the lower Court is at Page 100-105
1
of the Record of Appeal.
Let me quickly observe here that the four Grounds of Appeal are a repetition of the same issue of a party not being a juristic person.
The Appellants filed their Brief of argument on the 3rd of June 2014, but same was deemed filed on the 15th of April 2015. It is settled by Ejike Efobi, Esq.
The Respondents filed their Brief of Argument on the 23rd of June 2015. Same was deemed filed on the 21st of April 2016. It is settled by OBIORA NWEZE, Esq. On the 21st of April 2016 the parties adopted their respective briefs of argument.
The Appellants distilled two (2) issues for determination in their brief of Argument –
i) “WHETHER THE JOINDER OF THE REGISTERED TRUSTEES OF THE SYNOD OF THE DIOCESE ON THE NIGER AS A DEFENDANT IN THE PLAINTIFF’S SUIT NO OT/76/2012 WAS A PROPER EXERCISE OF DISCRETION.
ii) WHETHER THE STRIKING OUT OF THE NAMES OF VENERABLE J. O. I. NWEKE AND REV. JAMES UWAEZUOKE FROM BEING DEFENDANT IN SUIT NO OT/78/2012 IS JUSTIFIABLE.”
On their part, the RESPONDENTS distilled two (2) issues for determination from the Grounds of Appeal. They are –
i) “WHETHER THE JOINDER OF
2
THE REGISTERED TRUSTEES OF THE SYNOD OF THE DIOCESE ON THE NIGER AS A DEFENDANT IN SUIT NO OT/78/2012 BY THE COURT BELOW WAS A PROPER EXERCISE OF THE COURT’S DISCRETION.
ii) WHETHER THE STRIKING OUT OF THE NAMES OF THE RESPONDENTS HEREIN BEING DEFENDANTS BY THE COURT BELOW IN SUIT NO. OT/78/2012 IS JUSTIFIABLE.”
It is apparent that the Issues formulated by the Respondents for determination by this Court is an adoption of the issues formulated by the Appellants.
I shall consider this Appeal based on the Issues formulated by both parties as they are exactly the same.
ISSUE NO 1
It is the Appellants contention that the Registered Trustees of the Synod of the Diocese of the Niger is not a juristic person and cannot be sued.
They submit that in their Counter affidavit filed in opposition to the application to join them at the lower Court, couple with the address filed, they opposed the application because the Registered Trustees of the Synod of the Niger is not a juristic person, and lacks legal personality. That despite their opposition, the lower Court went ahead to join them and this makes the exercise of the lower
3
Courts discretion not judicious nor judicial. Citing WORLD MISSION AGGN INC. v. SODEINDE (2013) 19 WRN 136 at 544, and GOODWILL v. TRUST INVESTMENT LTD (2011) ALL FWLR (Pt. 576) 517, 533-534. They submit that once the juristic personality of an artificial body is challenged, whether in limine, or on the pleading, proof of Juristic existence must be established, by evidence of a certified true copy of its registration, or incorporation, as prima facie evidence of its corporate status.
They submit that the lower Court failed to give sufficient relevant consideration to the lack of legal personality in the Registered Trustees of the Synod of the Diocese of the Niger, before it filed the application to join.
They submit that the Plaintiffs did not mention the names of the Incorporated Trustees of the Synod of the Diocese of the Niger in their Statement of Claim.
Urges this Honourable Court to hold that the joinder of the Incorporated Trustees of the synod of the Diocese of the Niger is an improper exercise of the lower Courts discretion.
ISSUE NO 2
Adopting the argument in Issue No 1, the Appellants submit that the Respondents
4
on record, were implicated by the Plaintiffs in their Statement of Claim in the Court below, and they are the proper defendants.
That the Registered Trustees of the Synod of the Diocese of the Niger, not having been shown to be a Juristic person, cannot have agents. Moreso the subject matter of the Suit is land. A non juristic person cannot appoint agents to trespass on land in its behalf.
That the joinder of the non-juristic person, who cannot be sued occasioned grave injustice to them.
The Respondents had in arguing their issues, dwelt on the fact that the Registered Trustees of Synod of the diocese of the Niger was a necessary party.
I have read the argument advanced on the Respective briefs of argument of the parties.
I shall start from the premise of the application at the lower Court and thereafter treat Issues 1 and 2 together.
As seen at Page 39 of the Record of appeal, the application to the lower Court was filed on the 7th of January 2013 by the Defendants/Respondents for –
1) “AN ORDER joining the REGISTERED TRUSTEES OF THE SYNOD OF THE DIOCESE ON THE NIGER as defendant in this Suit.
2) AN
5
ORDER STRIKING OUT THE NAMES OF Venerable J. O. I. Nweke and Mr. James Uwaezuoke as parties in this Suit.”
Now, may I ask who is being joined in Prayer 1? And to whom? Let me reproduce the prayer 1 again ?
“AN ORDER joining the REGISTERED TRUSTEES OF THE SYNOD OF THE DIOCESE ON THE NIGER as defendant in this Suit.”
Who is the REGISTERED TRUSTEES OF THE SYNOD OF THE DIOCESE ON THE NIGER going to be joined to? The prayers are silent on this.
In Paragraph 1 of the affidavit in support of the application, it says ?
“That the party seeking to be joined is a necessary party to be joined as a defendant since they are the time owner of the land in dispute, being the Registered Trustees of the Synod the Diocese on the Niger for whom the 1st defendant is a priest in one of the Church Parishes and the 2nd defendant is just a pains hover.”
Paragraph (9) says –
“That the plaintiffs will not be prejudiced or embarrassed if the 1st and 2nd defendants names are struck out and party sought to be joined is joined as the defendant.”
From my understanding of the application, it seems to me that the party sought to
6
be joined is to be joined to nobody.
This is because if the names of the defendants on record in the lower Court are struck out, they is left with no defendant.
Whom is the party sought to joined, joined to as defendant? I am having to reiterate this question.
It is my view that the lower Court should have seen this lacuna before proceeding to grant an innocuous and vague application.
Moreso in Paragraphs 7, 8, 10 and 13 of the Counter affidavit filed in opposition to the application on the 8th of February 2013, (Pages 50-58 of the Record of Appeal) the Plaintiffs deposed thus –
Paragraph 7 “The 1st and 2nd Defendants/Applicants are the persons who were directly involved in the forcible entry into our land and the commissioner of acts of trespass thereon.
Paragraph 8 “The 1st and 2nd Defendants and their cohorts were the persons we reported to the police at Ogbunike for their malicious damage of our crops and our other property at our Isingwu land”.
Paragraph 10 “That the 1st and 2nd Defendants by their acts of trespass on our land are tort-feasors in their own right”.
Paragraph 13 “That we do not know about
7
the existence of the Registered Trustees of the synod of the Diocese on the Niger.”
The Defendants filed no reply to these important depositions. The facts are deemed admitted by the defendants.
In the circumstances, it is my view that the lower Court was duty bound to have considered the deposition in the affidavit in support of the application and indeed the Counter affidavit, before arriving at a decision.
I observe that the Defendants on record did not file a Statement of Defence.
However at Page 42 of the Record of Appeal, there is a proposed Statement of Defence which the defendants stated thereon as REGISTERED TRUSTEES OF THE SYNOD OF THE DIOCESE IN THE NIGER. That is strange, because as at the 21st of December 2012 when the said proposed Statement of Defence was dated, the Registered Trustees of the Synod of the Diocese of the Niger have not been defendants on record and have never been.
Therefore it is only the Plaintiffs (Appellant on this Appeal) that filed pleadings at the lower Court and against Venerable J. O. I. Nweke and Mr. James Uwaezuoke (for themselves and on behalf of other members of the Parochial
8
Church Council of St. Mark Anglican Church, Ogbunike.)
The leaned trial Judge should have taken cognizance of these state of affairs before granting an application for joinder.
It is elementary law that an application for joinder is not granted as a matter of course.
Where to grant joinder of causes of action or persons would be glaringly improper or is obviously embarrassing, or likely to cause delay, or inconveniences, leave to join would not be granted.
A distinction must be drawn between the desirability of making a person a party, and the necessity of making him one – PEENOK v. HOTEL PRESIDENTIAL 1983; 4 NCIR 122.
Here Eso and Obaseki JJSC (as they then were), drew the necessary distinction between what it is desirable to do, and what it is necessary to do.
Even, in this present appeal, it may be desirable for the parties sought to be joined (applicants) to join the defendants, (if any) but he is not a necessary applicant, and it is not necessary to join him before the Court can decide, and indeed, by the striking out of the defendants/Respondents names, and the lack of nexus between the parties sought to be
9
joined and the issues as reflected in the Statement of Claim; the application to join should have been refused by the lower Court.
To allow it was an error on the part of the Court. Thus it failed to exercise its discretion judicially and judiciously, OBIKOYA v. WEMA BANK LTD (1986) 1 SC (Pt. 1) 132.
As Justice Frankfulder of the U.S. Supreme Court aptly observed in BAKER v. CARR. Supreme Court of U.S.A. 1962 36 E U.S. 186.
“The Courts authority possessed of neither the purse nor the fund-ultimately rests on sustained public confidence in its moral sanction.”
I am of the view that the application for joinder should have been refused and the application for striking out of the defendants should also have been refused.
The Issue of whether the party seeking to join was a Juristic personality was never addressed by the Court. It was important that he did. Although the Appellants did not make this an issue in their pleadings, the Court should have considered the issue in considering the application for joinder, being a threshold issue, even suo motu.
?From the pleadings of the Appellants at the lower Court, it is
10
apparent that the Defendants on record had a cause of action against them. Indeed a case to answer. It was therefore wrong for the lower Court to strike out their names.
The two issues are resolved in favour of the Appellants and against the Respondent.
The Appeal succeeds, and the Ruling of the lower Court delivered on the 6th day of March 2013 in Suit No OT/78/2012 at the High Court of Otuocha, Anambra Judicial Division is hereby set aside.
Parties to bear their own costs.
Other Citations: (2016)LCN/8723(CA)
