Otunba a.o. Soyode & Ors V. Mr. Abel Dada & Ors (1999)

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OGUNTADE, J.C.A. 

The present applicants were not parties in the suit at the lower court out of which this interlocutory appeal arose. They have now brought this application asking to be joined as interested parties in the proceedings.

In paragraphs 4 – 12 of the affidavit in support of the application, it was deposed thus:

“4. That following series of meetings and deliberations between the applicants on the one hand and the plaintiffs and the defendant on the other, it became imperative for the applicants to seek to be joined in this matter as the proceedings instituted in the matter some five years ago had so far produced no head or tail and had led nowhere as far as the applicants are concerned who are keen and desperate to be paid what the Federal Military Government had paid as compensation for the acquired land which belonged to them under Yoruba Native Law and Custom.

5. That the 4th to the 10th applicants are the Traditional Rulers and Community Elders of the people owning parcels of land in the acquired site and having interest in the proceeds of the compensation and of the litigation.
6. That they were actually chosen and selected to join in and monitor the proceedings on behalf of others.
7. That the 1st to the 3rd applicants are the professional agents engaged by the applicants to represent them in demanding compensation from the Government in respect of the acquisition.
8. That on the 4th of February, 1998, an application to join was filed by the applicants by way of a motion listed for hearing on the 23rd day of March, 1998 at the Lagos High Court No. 8 sitting in Lagos.
9. That on getting to the court that day, however, we were informed that the case filed had been recalled by the learned Chief Judge of Lagos State presumably, for some administrative action. 10. That we were extremely surprised and absolutely flabbergasted.
10. That however, the matter was eventually relisted before the same court on 19/10/98.
11. That the motion was further adjourned to the 12/11/98, 30/11/98, 7/12/98, 25/2/99 and 4/3/99 when we were informed finally that the matter had to be adjourned sine die on the ground that this Honourable Court had ruled on 18/4/94 that further proceedings pending in the matter in the court below be stayed until the determination of appeal in respect thereof”

The second respondent filed a counter-affidavit. Paragraphs 7, 8, 11 and 12 of the counter-affidavit read thus:-

“7. That none of the present applicants has any land with the acquired land and properties.

8. That we neither appoint the applicants as our agents nor our community leaders to assist us.
9. That there is nothing for them to do as the money had been paid into court since 1993.
10. That depositions in paragraphs 4, 6, 7 of the affidavit in support are not correct.
11. That the applicants have no interest in the land and they did not file any survey plans acclaims with the Ministry of Defence at all since 1975 when the land was occupied and acquired by the Nigerian Army and before the compensation was paid in 1993.
12. That these applicants are professional speculators and gamblers.”

We took arguments for and against the application on 20/10/99. Whilst Mr. Akinboro for the applicants urged us to grant the application Mr Tunji Ayanlaja, SAN, for the appellant, with whose argument Chief Adedeji Adekoya for the respondents associated himself, submitted that the appellants had not disclosed the interest which would enable this court join them in the proceedings. Chief Adekoya relied on Green v. Green (1987) 3 NWLR (Pt. 61) 480 at 483.

Order 1 Rule 20(1) of the rules of this court provides:-

“(1) In relation to an appeal the Court shall, have all the powers and duties as to amendment and otherwise of the High Court including without prejudice to the generality of the foregoing words, in civil matters the powers of the High Court in civil matters to refer any question or issue of fact arising on the appeal for trial before, or inquiring and report by, an official or special referee.

In relation to a reference made to an official or special referee, anything which can be required or authorised to be done by, to, or before the High Court shall be done by, to, or before the Court.” The above Rule of this Court under which the applicants expressed to have brought their application only grants to this court the powers and duties of a High Court in relation to amendment in appropriate cases. Is this an occasion to join the applicants as parties’? I think not. On 24/3/94, Aka J. at the Lagos High Court made an Order that the compensation due to some claimants which was paid into the Chambers of Obafemi Awolowo & Co., Legal Practitioner for transmission to the claimants be paid into court. The Chambers of Obafemi Awolowo & Co. were dissatisfied with the order of Aka J. They then brought an appeal before this court.

Now, the applicants claim two capacities which they believe entitled them to be joined as parties-in-this appeal:

(1) That the 4th to 10th applicants are Traditional Rulers and Community Elders of the people who own the land and who are entitled to some of the compensation.

(2) That 1st to 3rd applicants are professional agents engaged by the claimants to represent them in demanding compensation.

In the appeal before us, we can only decide whether or not the Order of Aka, J. was properly or correctly made. It has not been disclosed to us the principle of law which confers on traditional rulers and community elders the right to be made parties in suits in which neither they as individuals nor their community as a group have a direct interest. That indeed would be a novel proposition which must lead to chaos if it were permissible for traditional rulers and community elders as such to be made parties in suits and proceedings in which the interests of their community are not involved. The claimants pursue their claims for themselves as individuals and not for their community. There is therefore, no reason whatsoever, to bring in traditional rulers and elders to watch over them.

Further, since the direct claimants are themselves parties to the suit and the appeal, there is nothing that makes it necessary to join the agents to the claimants as parties.

Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 provides:

“243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –

(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;

(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”

The applicants have not deposed that they intend to exercise any right of appeal in respect of the decision appealed against and have not sought any leave to do so from this court.

As to joinder generally, the Supreme Court in Green v. Green (1987) 3 NWLR (Pt.61) 480 at 498 followed the guide suggested in The Result (1958) 1 All ER 839 at 841 – 842 as to the factors to be borne in mind: The Supreme Court said that a court should ask itself the following questions:-

“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 a 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 to adjudicate on and settle all the questions involved in the cause or matter.”

See also Amon v. Raphael Tuck & Sons Ltd. (1956) 1 Q.B. 375; Peenok Investments Ltd v. Hotel Presidential Ltd. (1983) 4 NCLR 122; Uku ors. v. Okumagba & ors. (1974) 3 SC 35.

When the above test is applied to the facts of this case, it is manifest that the applicants cannot be necessary parties to this appeal or the suit before the lower court. The application fails and is dismissed.

Other Citations: (1999)LCN/0500(CA)