Peterson Commercial Agency Limited V. Emuobugharen Diamreyan Jarikre & Ors (2006)
LawGlobal-Hub Lead Judgment Report
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
This appeal is against the judgment of the High Court of Delta State sitting at Otor-Udu in the Udu Judicial Division and delivered on the 22nd day of April, 2015.
The 1st set of Respondents in this appeal had as claimants commenced an action by way of originating summons against the 2nd set of Respondents wherein they sought the following reliefs:
1. A DECLARATION that the Claimants who are biological children of Late Chief DIAMREYAN JARIKRE who died intestate are entitled to share in the intestate estate of Late Chief DIAMREYAN JARIKRE.
2. A DECLARATION that the Putuses Gate cannot assign and/or alienate any interest in the real estate intestate estate of Late Chief DIAMEYAN JARIKRE without the consent of the other three gates of Late Chief DIAMREYAN JARIKRE which consists of (a) AKPOJEVUGHES GATE (b) YIKIMIS GATE and (c) LATAS GATE.
3. AN ORDER setting aside any purported act of the defendants i.e sale and/or assignment of any interest in the real estate intestate estate of Late Chief DIAMREYAN JARIKRE without the
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consent of the other three gates of Late Chief DIAMREYAN JARIKRE which consists of (a) AKPOJEVUGHES GATE (b) YIKIMIS GATE and (c) LATAS GATE.
The question set for the determination by the trial Court is:
1. WHETHER BY LAW THE PUTUSE GATE OF LATE CHIEF DIAMREYAN JARIKRE CAN SELL/ASSIGN AND/OR ALIENATE ANY INTEREST IN THE REAL ESTATE INTESTATE ESTATE OF LATE CHIEF DIAMREYAN JARIKER WITHOUT THE CONSENT OF THE OTHER THREE GATES OF LATE CHIEF DIAMREYAN JARIKRE WHICH CONSISTS OF (1) AKPOJEVUGHES GATE (2) YIKIMIS GATE AND (30 LATAS GATE BY VIRTUE OF THE SUPREME COURT DECISIONS IN THE CASES OF ADEJUMO VS. AYANTEGBE (1989) 3 NWLR (PT. 110) 417 AND ALAO VS. AJANI (1989) 4 NWLR (PT. 113) 1.”
The said originating summons was supported by a 10 paragraph affidavit.
The 2nd set of Respondents as defendants in the trial Court did not file any counter affidavit to oppose the originating summons. Rather they filed what was headed:
AFFIDAVIT OF FACTS AS TO THE SALE OF ALL THE ADJOURNING LANDS OF OPETE WATER FRONT BY PUTUSE GATE OF LATE CHIEF DIAMREYAN JARIKRE OF OPETE TOWN, UDU LOCAL GOVERNMENT
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AREA, DELTA STATE WITHOUT THE CONSENT OF THE THREE OTHER GATES OF LATE CHIEF DIAMREYAN JARIKRE.
The said affidavit of facts consists of eleven paragraphs.
Upon the hearing of the said originating summons, the learned trial Judge entered judgment in favour of the 1st Set of Respondents herein and granted all the reliefs sought.
The Appellant herein which is a corporate entity was not a party to the suit in the trial Court but was a lessee of the parcel of land, the subject matter of the suit.
A summary of the facts as can be gleaned from the record is that, by a Deed of Lease dated 8/3/2002, the Appellant leased a large parcel of land measuring about 1.259 hectares from the 2nd set of Respondents which included one Daniel Jarikre (now late) who was the head of Late Chief Diamreyan Jarikre family consisting of four gates. The 2nd set of Respondents are brothers of the same father with the 1st set of Respondents.
Upon being put in possession of the land, the Appellant developed same by building a jetty on the water front as well as office complex and warehouses where it was carrying on marine business.
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However in 2015, the 1st set of Respondents in their own right and without involving the other two gates, initiated the action against the 2nd set of Respondents claiming the reliefs as earlier set out in this judgment. The Appellant who was in possession of the said land was not made a party in the said suit.
Thus upon being served with the judgment of the trial Court, it filed a motion on notice dated 5/5/2015 seeking leave as a person interested to appeal against the judgment delivered on 22/4/2015 in suit No. OUHC/7/15 and which application was granted by the trial Court in a Ruling delivered on 4/2/2016. Though part of the order of the trial Court is that the Appellant must apply for extension of time to file notice of appeal within 14 days of the said Ruling failing which the interlocutory injunction granted in its favour will abate, the Appellant filed the notice of appeal on 9/2/2016. That is five days after the application was granted.
Upon the transmission of record of appeal to the Court on 21/4/2016, the parties except the 2nd set of Respondents filed their briefs of argument which they also adopted at the hearing of the appeal on 27/2/2019.
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In the Appellants brief of argument filed on 7/2/2017, the following three issues were formulated for hearing.
(1) Whether the third relief granted by the trial Court which has the consequence of dispossessing the Appellant of her land having been made without notice to the Appellant or in breach of the rule of fair hearing ought not to be set aside?
(2) Whether the originating summons of the 1st set of Respondents before the trial Court was properly or competently brought before that Court?
(3) Whether in the circumstance of this case, it was not fraud calculated at stealing the Appellants land that the Respondents practiced on the trial Court?
The 1st set of Respondents filed their brief of arguments on 17/3/2017 wherein the following two issues were distilled for determination:
(1) Whether the judgment delivered in suit No. OUHC/7/2015 on the 22/4/2015 is liable to be set aside for the non-joinder of the Appellant?
(2) Whether the Appellant is in a position to challenge the procedure in which the 1st set of Respondents as claimants commenced the action at the lower Court. When the 2nd set of Respondents as
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Defendants did not challenge the material facts presented by the 1st set of Respondents on the suit at the lower Court?
However, in the said 1st set of Respondents brief of argument, a preliminary objection with the arguments in support was embedded in paragraphs 2.00 to 2.03 thereof, but either knowingly or unknowingly, their counsel did not refer to or move the said preliminary objection before the hearing of the appeal. The law is settled to the effect that the consequence of a respondent to an appeal who has raised a preliminary objection in his brief of argument but fails or neglects to seek the leave of Court to move the objection before the hearing of the substantive appeal is that the said preliminary objection is deemed to have been abandoned and the Court is enjoined to ignore or discountenance it. SeeA.G. RIVERS STATE VS. UDE & SONS (2006) 17 NWLR (PT. 1008) 436; NSEFIK & ORS. VS. MUNA & ORS. (2014) 2 NWLR (PT. 1390) 151; CAREW VS. OGUNTOKUN & ORS. (2011) 5 NWLR (PT. 1240) 376; In OFORKIRE & ANOR. VS. MADUIKE & ORS. (2003) 1 SC (PT. III) 74, the Supreme Court admonished that the notice of preliminary objection
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can be given in the Respondents brief, but a party filing it in the brief must ask the Court for leave to move the notice of preliminary objection before the oral hearing of the appeal commences. Otherwise, it will be deemed to have been waived and therefore abandoned. See also NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138) 285 at 296 297.
In the instant case, the 1st set of Respondents preliminary objection not having been moved before the oral hearing of this appeal on 27/2/2019 is hereby deemed abandoned and accordingly discountenanced.
However, this Court suo motu invited the parties to address it on two issues firstly on the competence of issue 3 having regard to ground 3 of the notice of appeal wherefrom it was formulated.
In his own submission Oghenero Okoro of counsel for the Appellant contended that issue 3 properly relates to ground 3 of the notice of appeal as shown in the particulars. C.U. Umode of counsel for the 1st set of Respondents on the other hand submitted that issue 3 did not derive or relate to ground 3 or any of the grounds of appeal and as such should be discountenanced.
The second issue for which
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the Court asked the parties to address it is on whether the Appellant rightly sought and obtained leave of Court to appeal as interested party when it was not a party to the suit in the lower Court.
In his own address, learned counsel for the Appellant submitted that any party interested in the outcome of a judgment can seek for, and obtain leave to appeal from the lower Court if it is done within time.
On the other hand, counsel for the 1st set of Respondents submitted that on the authority of CHUKWU VS. INEC, the lower Court has become functus officio and as such cannot grant leave to appeal as an interested party and which leave can only be granted by the Court of Appeal.
Now on the first issue as raised by this Court, ground 3 of the notice of appeal as contained in page 64 of the record of appeal reads thus:
The learned trial Judge erred in law and in fact when she accepted the facts put before the Court by the Respondents and acted on same to grant prayer 3 of the originating summons.
PARTICULARS OF ERROR:
(a) The Court did not do a proper evaluation of the fact put before the Court.
(b) The facts put before the
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Court did not support the grant of prayer 3 of the originating summons.
(c) The mere filing of affidavit of facts by the 2nd and 3rd respondents accepting the claim of the 1st and 2nd respondents ought to put the Court on notice that the respondents were guilty of connivance and were practicing fraud on the Court in order to use the Court to steal third parties land or nullify third parties interest.
On the other hand, issue 3 as formulated by the Appellant from the above set out ground of appeal is herein below set out.
ISSUE 3
Whether in the circumstance of this case, it was not fraud calculated at stealing the Appellants land that the Respondents practiced on the trial Court?
From the above set out ground of appeal and the issue formulated therefrom, it is not in doubt that the said issue 3 cannot be said to have been derived from, or relate to ground 3 or any other ground of appeal. Particular (c) which has a semblance with issue 3 is inconsistent with the main ground of appeal when infact particulars of error are meant to provide explanation and guidance as to the intent of the ground of appeal which it supports.
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See WAZIRI & ANOR. VS. GEIDAM & ORS. (2016) LPELR 40660 (SC) where it was held that:
The functions which particulars to a ground of appeal are required to perform are to highlight the grouse of the appellants against the judgment on appeal. They are specifications of errors and misdirections which show the complaint the appellants are screaming about and the line of thought the appellants are going to canvass in their brief of argument.
Further on the nature of particulars of error/misdirection the Supreme Court presented their true intent and purpose in the case of NYAKO VS. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS. (2016) LPELR 41822 SC at page 40 as follows:
It is trite law that the complaint of an Appellant can hardly be properly understood where there is a dichotomy between the mother/main ground and its children or particulars. In fact,the law does not allow a party to divorce the particulars of a ground of appeal from the main ground of appeal. Particulars of error alleged in a ground of appeal are intended to highlight the complaint against the decision appealed. They are the specifications of
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errors or misdirection which show what the complaint against the decision is all about. And, in order to determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the parties.
See also PETER VS. NNPC (2010) 8 NWLR (PT. 1195) 175; BRIGGS VS. CHIEF OFFICERS OF LAND OF RIVERS STATE OF NIGERIA (2005) 12 NWLR (PT. 938) 59; NWOSU VS. PDP & ORS. (2018) LPELR 44386 (SC).
The bottom line here is that issue 3 is not found to have been derived from, or relate to ground 3 or any other ground of appeal in the Appellants notice of appeal. The law is that where it is found that an issue formulated by an appellant do not relate to the grounds of appeal, such issue is deemed abandoned. See ADELEKAN VS. ECU-LINE NV (2006) 12 NWLR (PT. 993) 33; MADUMERE & ORS. VS. OKAFOR & ORS. (1996) 4 NWLR (PT. 445) 637. In this regard, issue 3 as formulated in the Appellants brief of argument is deemed abandoned and accordingly discountenanced.
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On the second issue which deals with whether the Appellant rightly sought and obtained leave to appeal as interested party who was not a party at the lower Court.
The answer to this issue can be found in the case of CHUKWU & ANOR. VS. INEC (2014) LPELR 25015 (SC) OR (2014) VOL 233 LRCN 92 also cited by counsel for the 1st set of Respondents.
Therein the Supreme Court emphasised at page 86 of the report per Kekere-Ekun JSc that:
Pursuant to Section 243(1) (a) of the Constitution, a party interested in an appeal, who was not originally a party to the decision complained of must first seek leave as an interested party. There is no time limit within which the application for leave to appeal as an interested party may be brought. See In Re Madaki (1996) 7 NWLR 9PT. 459) 153 at 164. (A B).
Further in the case of CONTRACT RESOURCES (NIG) LTD. & ANOR. VS. UBA PLC. (2011) 16 NWLR (PT. 1274) 592, the Supreme Court while resolving the issue whether a party interested in an appeal who was not originally a party to the decision complained of must first seek leave to appeal as an interested party held per Rhodes Vivour JSC as follows:<br< p=””>
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Where a party who was not a party in the Court below seeks to appeal to this Court, he can only do so if he seeks and obtains leave from this Court and he would obtain leave if and only if he is able to satisfy this Court that he is an interested party. An Appellant is a person appealing from a decision or applying for leave to appeal. Section 243(1)(a) of the Constitution makes leave a precondition that must be sought and obtained before an interested party can appeal.
On the point whether the Appellant who was not a party in the lower Court qualifies as an interested party. The Supreme Court provided the answer in the case of NWAOGU VS. ATUMA (2013) All FWLR (PT. 669) 1022 at 1034, Where it was held that:
For a person to qualify as a person interested, the Applicant must show not only that he is a person having an interest in the matter but also that the order or judgment of the Court below he is seeking leave to appeal against pre-judicially affects his interest. In other words, to succeed in the application, the applicant must show that they are persons against whom decisions have been pronounced which have wrongly refused
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them something or wrongly affected their title to something.
In the instant case, the Appellant in her affidavit in support of application for leave to appeal showed in paragraphs 3 to 5 that it acquired the land, subject matter of the suit in the year 2000 vide a Deed of Lease annexed as Exhibit 001 and has been in peaceful and undisturbed possession of same until the 2015 when on 27/4/2015 an enrolled order of the lower Court was served on it and which order required it to vacate the said land because any sale to it has been set aside.
These facts as deposed to in the said affidavit no doubt qualifies the Appellant as a person aggrieved by the decision or order of the lower Court and as such rightly sought, and was granted leave by the lower Court to appeal against the judgment delivered on 22/4/2015.
Having resolved the two issues, the coast is now clear to revert to the issues raised in the parties brief of argument. For the Appellant, issue 3 has been discountenanced, leaving it with only issues 1 and 2 as earlier set out in this judgment. Now after a careful review of the issues formulated for determination by the Appellant and the
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1st set of Respondents vis-a-vis the grounds of appeal as well as the judgment appealed against, I am of the firm view that the following sole issue as formulated by this Court will adequately determine this appeal. That is to say:
Whether the judgment of the lower Court is liable to be set aside for failure by the 1st set of Respondents to join the Appellant who has a leasehold and possession of the land, subject matter of the suit as a defendant.
Arguing on their issue 1, learned counsel for the Appellant referred to relief 3 granted in the judgment of the lower Court to submit that the granting of the said relief has the effect of dispossessing the Appellant of the land unjustly, because the order was made without knowledge of the suit by the Appellant and this constitutes a breach of fair hearing as guaranteed by Section 36 of the 1999 Constitution.
Counsel also referred to Order 13 Rule 6 of the Delta State High Court (Civil Procedure) Rules 2009 which deals with the need for a Court hearing a matter to direct that a person who may share or have interest in the subject matter of the suit or may likely be affected by the result but was not
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made a party to be so joined as a claimant or defendant in the suit as the case may be. He added that the Deed of Lease annexed to the Appellants application for leave to appeal as interested person show that the Appellant has a leasehold interest and in possession of the land since 2002 and has invested billions of naira thereon.
It was further submitted that the relief 3 granted by the lower Court show that third parties interest would be affected in which case the learned trial Judge has a duty to order that they be put on notice before such order should be made. Therefore, having failed to put the Appellant herein on notice and having failed to do so, the said order is liable to be set aside.
Learned counsel also argued that the doctrine of fair hearing is not a technical principle but a rule of substance and any proceedings conducted in breach of the rule of fair hearing, no matter how well conducted is a nullity. He cited the case of TSOKWA MOTORS (NIG) LTD. VS. UNITED BANK OF AFRICA PLC (2008) All FWLR (PT. 403) 1240 and PATRICK ZIIDEEH VS. RIVERS STATE CIVIL SERVICE COMMISSION (2007) All FWLR (PT. 354) 243.
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On the second issues which is whether the originating summons filed by the 1st set of Respondents was competent, learned counsel submitted that originating summons is not to be used to commence an action that may involve hostile facts or likely to have contentious issues, but used when the dispute involves a simple construction or interpretation of documents in respect of which pleadings are not necessary. Vide PAM & ANOR. VS. MOHAMMED & ANOR. (2008) All FWLR (PT. 436) 1868 and KEYAMO VS. HOUSE OF ASSEMBLY LAGOS STATE & ORS. (2003) FWLR (PT. 146) 925 at 928. Reference was also made to Order 3 Rule 15 of the Delta State High Court (Civil Procedure) Rules 2009.
Learned counsel further submitted that the issues canvassed in the originating summons by the 1st set of Respondents at the trial Court do not qualify for resort to originating summons procedure because reliefs 1 and 2 upon which relief 3 is predicated has to do with the rights and obligations of some family members under a specified custom as shown in paragraph 9 of the affidavit in support of the originating summons and which custom needs interpretation and appraisal based on pleadings and evidence of the
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parties. Reliance was placed on Section 16 18 of the Evidence Act 2011; the case of EGESIMBA VS. ONUZURUIKE (2002) FWLR (PT. 128) 1386 at 1434; USIOBAIFO VS. USIOBAIFO & ANOR (2005) All FWLR (PT. 250) 131 at 144.
Learned counsel also faulted the capacity in which the 1st set of Respondents instituted the action in the trial Court because the reliefs were sought in a representative capacity.
He added that the failure by the 1st set of Respondents to sue in a proper capacity renders the action incompetent and robs the Court of the jurisdiction to entertain same as held in NTIA VS. JONES (2007) All FWLR (PT. 351) 1600 and EMUZE VS. THE V.C. UNIVERSITY OF BENIN & ANOR (2003) FWLR (PT. 170) 1411.
It was then urged on this Court to resolve the issues in favour of the Appellant and set aside the judgment of the lower Court.
Replying in their own issue 1, learned counsel for the Respondent submitted that the law is settled that no cause or matter shall be defeated by reason of non-joinder of parties and the Court may deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. He
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cited the cases of PEENOK INVESTMENT LTD VS. HOTEL PRESIDENTIAL (1982) 12 SC page 1 at 85 and SAPO VS. SUNMONU (2010) 189 LRCN 26.
He added that the matter before the lower Court borders on the question as to whether the 2nd set of Respondents can sell and/or alienate any interest in the intestate estate of late Chief Diamreyan Jarikre who is the Biological father of the two sets of Respondents without the consent of the other three gates of the family of their late father. He added that in that regard the Appellant who is not a member of the family could not have been joined as a party to the suit, moreso that her interest was not disclosed by the 2nd set of Respondents.
On the second issue, it was submitted that the material facts as presented before the lower Court by the 1st set of Respondents are cogent and undisputed to the knowledge of the 2nd set of Respondents because it is not in doubt that the family of late Chief Diamreyan Jarikre consists of four gates and that the 2nd set of Respondents leased the land which formed part of the intestate estate of their late father to the Appellant without the consent of children of the other three
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gates. Therefore the originating summons procedure adopted to bring the action is in consonance with Order 3 Rule 15 of the Delta State High Court (Civil Procedure) Rules 2009.
It was further contended that, even if the originating summons procedure is found to be wrong, the anomaly is cured by the provisions of Order 5 Rule 1(1) of the said Rules of the Delta State High Court which deals with the effect of non-compliance with some provisions of the Rules.
This Court was therefore urged to resolve the issues against the Appellant and dismiss the appeal.
Though the Appellant filed a reply brief on 6//4/2017 but the submissions therein dwelt on the Respondents preliminary objection which was discountenanced by this Court, having been deemed abandoned by the 1st set of Respondents. The said reply brief is therefore not useful to the substantive appeal and it is hereby discountenanced.
On the sole issue as formulated by this Court. That is, whether the judgment of the lower Court is liable to be set aside for failure by the 1st set of Respondents to join the Appellant who has a leasehold and is in possession of the land, subject matter
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of the suit, as a defendant.
The test as to whether there should be a joinder of parties in a suit arises from the need to have before the Court such parties as would enable it to effectively and completely adjudicate upon and settle all the questions in the suit. Furthermore, the main basis for making a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be effectively and completely settled unless he is a party. Joinder is therefore necessary to ensure that proper parties are before the Court for determining the point in issue. See AJAYI VS. JOLAYEMI (2001) 7 SCM 28; CARENA & ANOR. VS. AROWOLO & ORS. (2008) 6 7 SC (P. 1) 66; PANALPINA WORLD TRANSPORT (NIG) LTD VS. J.B. OLANDEEN INTERNATIONAL & ORS. (2010) 12 SC (PT. III) 30.
The Court is also empowered to make an order of joinder of a party to a suit when, on the facts before it such a joinder may enable it to effectively and completely adjudicate upon and settle all issues involved in it. See PETER CHINWEZE & ANOR. VS. VERONICA MASI & ANOR. (1989) 1 SC (PT. II) 33.
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The question then is whether the Appellant herein is a necessary party who ought to be joined in the suit before the lower Court. A necessary party has been held to be someone whose presence is necessary as a party for the proper effectual and complete determination of the claim before the Court. The only reason which makes it so is that he should be bound by the result of the action. See BABAYEJU & ANOR. VS. ASHAM & ANOR. (1998) 7 SCNJ 158; IGE & ORS. VS. FARINDE & ORS. (1994) 7 8 SC SCNJ (PT. II) 284.
In the instant case, the Appellant in a bid to justify his interest in the subject matter of the suit in the lower Court deposed in paragraphs 3 to 14 of the affidavit in support of the motion for leave to appeal as an interested party as follows:
(3) That the applicant is the owner and the one entitled to statutory right of occupancy over a large parcel of land having an area of 1.259 hectares, known as Peterson Jetty being at Opete Waterfront, Opete Town, Udu Local Government Area of Delta State.
(4) That the applicant acquired the piece/parcel of land from the accredited representatives of the
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Claimants/Respondents and the Defendants/Respondents sometime in 2000 for a period of 99 years. The Deed of Lease is annexed hereto as Exhibit 001.
(5) That the applicant thereafter took possession of the said land, developed same and have been carrying on is marine activities thereat since the time undisturbed and unchallenged by any person including the present respondents. As a matter of fact, the defendant/respondents were among those who represented their family when the applicant acquired the land aforesaid.
(6) That when management of the applicant resumed work on Monday, 27th April, 2015, we saw some papers posted on the gate of the applicants premises. We pulled out the said papers and discovered that it was an enrolment of the judgment in this suit whereat the third prayer purportedly inter alia set aside all sale of the respondents land by the Defendants/Respondents, which included the applicant aforesaid land.
(7) That there was also a letter from the law firm of Choice U. Umode & Co directing the Applicant to vacate our premises within three days. The said letter is annexed hereto as Exhibit 002.
(8) That on
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Thursday, the 30th day of April, both the Claimants/Respondents and the Defendants/Respondents brought three trips of sharp sand and used same to block the gate of the premises of the said Applicants office, Peterson Jetty and attempted to chase away our staff. They did not even bother to follow the procedure laid down by law for obtaining possession after judgment.
(9) That my Elder Brother, Alex Osazuwa informed me and I verily believed him that Mr. Choice U. Umode, the lawyer to the Claimants/Respondents and who is a member of the Diamreyan Jarikre family called him on phone threatening that we should never ever enter the premises again and that they have obtained judgment against the Applicant.
(10) That our investigation and intelligence reveals that the Diareyan Jarikre family connived among themselves to bring this nebulous actions with the aim of taking the applicants aforesaid land.
(11) That the applicant have been in possession of this land since 2000 to the knowledge of all the Respondents including the Claimants/Respondents.
(12) That at the time Claimants/Respondents instituted this action, they knew of the
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Applicant interest in the land subject matter of the action but deliberately did not join the Applicant to this action even when they know fully well that the outcome of the suit will affect the interest of the present Applicant.
(13) That this suit is an action connivance/fraud practiced on the Court by the Respondents to steal the Applicants aforesaid land.
(14) That the applicant was not heard before this judgment which is perceived to have dispossessed the applicant of her land was given.
The Deed of Lease annexed to the said affidavit as Exhibit 001 also attests to the fact that the Appellant acquired interest in the land in question measuring 1.259 hectare since 2002 and has not only been in possession of same but had developed the land by constructing a jetty and built offices and workshops thereon. This no doubt is a clear case where the garb of a necessary party fits the Appellant properly given that the suit cannot be effectually and completely settled unless she is made a party and consequently be bound by the result of the action.
However, it has been settled in a plethora of authorities that failure to join a
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necessary party to a proceeding will not render such proceedings a nullity on ground of lack of jurisdiction. See LEONARD OKOYE & ORS. VS. NIGERIA CONSTRUCTION AND FURNITURE CO. LTD & ORS. (1991) 7 SC (PT. III) 32; AYORINDE & ORS. VS. ONI & ANOR. (2000) 3 NWLR (PT. 649) 348; BELLO VS. INEC & ORS. (2010) LPELR 767 (SC). InAZUH VS. UNION BANK OF NIGERIA PLC (2014) 11 NWLR (PT. 1419) 580 the Supreme Court per Kekere-Ekun (JSC) explained the effect of non-joinder of a necessary party on the jurisdiction and order of the Court as follows:
The position of the law is that non joinder of a necessary party in a suit is an irregularity that does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. See Okoye Vs. Nigeria Construction and Furniture Co. Ltd. & Ors. (1991) 7 Sc (pt. III) (Reprint) 33 at 56; Green Vs. Green (1987) 3 NWLR (Pt. 60) 480. However, an order made against a person who was not a party to the action before the Court, though not a nullity is to no avail. It cannot stand the test of time and is not binding on such non party to the action. See Uwazuruike & Ors. Vs. A.G.
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Federation (2013) 4 5 SC (Pt. I) 90 at 119; (2013) LPELR 20392 sc 1 at 24 per Fabiyi JSC; Uku Vs. Okumagba (supra).
Further in LEONARD OKOYE & ORS. VS. NIGERIA CONSTRUCTION AND FURNITURE CO. LTD (supra), the Supreme Court held that failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, the irregularity may lead to unfairness which may result in setting aside the judgment on appeal.
Also in NEWSPAPERS CORPORATION VS. J.L. ONI & ORS. (1995) 1 SCNJ 218, it was posited that non-joinder or mis-joinder of parties will not be fatal to the proceedings, but the Court may however order retrial in appropriate cases.
The conclusion of the matter therefore, is that failure to join a necessary party in an action is a procedural irregularity which does not affect the competence or jurisdiction of the Court to entertain the matter before it. But where the irregularity leads to injustice or unfairness to the opposing party, it may lead to setting aside the judgment on appeal. See AYORINDE VS. ONI (2000) 2 SCNJ page 1.
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The case under consideration seems to fall into the category where treatment of the non-joinder of the Appellant as a mere irregularity will lead to injustice given the facts and circumstances of the case. It is not in dispute that the Appellant acquired a leasehold over a parcel of land measuring 1.259 hectares in 2002 vide a Deed of Lease executed between the Appellant and the 2nd set of Respondents of which one Daniel Jarikre (now deceased) was the head of the entire family of late Chief Diamreyan comprising of four gates.
The Appellant has been in quite possession and use of the said land from 2002 till 2015 when it suddenly was served with an enrolled order of Court and a letter from counsel for the 1st set of Respondents demanding that it vacates the land within 14 days. That was the first time it became aware of the suit filed by the 1st set of Respondents.
Interestingly enough, the 2nd set of Respondents who entered into the lease agreement with the Appellant followed up with their own letter requesting the Appellant to vacate the land with the assurance of getting a refund of the residue of the years granted by the lease agreement which was
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calculated to be eighty-four years out of the ninety-nine years originally granted.
The 1st and 2nd sets of Respondents in their personal capacity and not on behalf of their own gate or the other three gates alleged to have been excluded in the land transaction are of the same father (Chief Diamreyan Jarikre) but different gates. There are four gates in the family. The 1st set of Respondents opted to set aside the leasehold granted by the 2nd set of Respondents via the originating summons procedure and the 2nd set of Respondents readily deposed to an affidavit supporting the reliefs claimed in the originating summons. They did not in any way challenge the suit or draw the attention of the Court to the fact that a Deed of Lease has been executed with the Appellant since 2002 and that the Appellant had long been in possession of the said land. Hence the lower Court readily and innocuously granted the reliefs sought without regard to relief 3 which to all intents and purpose upstaged the entire interest of the Appellant on the land without being given the opportunity to be heard by being made a party to the suit. The said relief 3 reads thus:<br< p=””>
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3. An order is hereby made setting aside any purported act of the Defendants i.e sale and or assignment of any interest in the real estate-intestate estate of late Chief Diamreyan Jarikre without the consent of the other three gates of late Chief Diamreyan Jarikre which consist of (a) AKOJEVUGHES GATE (b) YIKIMIS GATE (c) LATAS GATE.
In such cases where the interest of a third party will be adversely affected by an action before the Court, the Delta State High Court (Civil Procedure) Rules 2009, made provision for what measures to adopt by the trial Judge to ensure that justice is done. Hence Order 13 Rule 6(1) provides thus:
(1) If it appears to the Court, at or before the hearing of a suit, that all persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may likely be affected by the result, have not been made parties, the Court may adjourn the hearing of the suit to a future date, to be fixed by the Court, and direct that such persons shall be made either claimants or defendants in the suit, as the case may be. In such case, the Court shall issue a notice
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to such persons which shall be served in the manner provided by this Rules for the service of writ of summons or in such other manner as the Court thinks fit to direct; and on proof of the due service of such notice, the person so served whether he appears or not, shall be bound by all proceedings in the cause …
As earlier stated, the Appellant herein has an interest in the subject matter of the suit brought by the 1st set of Respondents via originating summons procedure and the Appellant would not only be likely but surely affected by the result of the suit having invested so much on the land since taking possession of same in 2002. Consequently, the suit filed by the 1st set of Respondents cannot be said to have been effectively, properly and completely settled by the judgment entered in their favour with the tacit support of the 2nd set of Respondents who years back and as head of the family of Chief Diamreyan leased the land to the Appellant.
The conclusion of the matter is that, though failure to join the Appellant as a necessary party to the suit is an irregularity which does not affect the jurisdiction or competence of
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the lower Court to adjudicate on the matter. The inherent irregularity in this case will surely lead to unfairness and injustice and the only option left is for this Court to set aside the judgment of the lower Court as per the case of LEONARD OKOYE VS. NIGERIA CONSTRUCTION AND FURNITURE CO. LTD (supra).
This issue is therefore resolved in favour of the Appellant.
On the whole, this appeal is found to be meritorious and it is accordingly allowed.
The judgment of the High Court of Delta State delivered on the 22nd day of April, 2015 is hereby set aside.
Parties to bear their costs.
Other Citations: (2006)LCN/1958(CA)
