Sylvester Odili Akubeze V. Chief Frank Onwudiwe Obi & Ors (2016)
LawGlobal-Hub Lead Judgment Report
TOM SHAIBU YAKUBU, J.C.A.
The appellant together with late Anthony Ikechukwu Akubeze (whose name was struck out by this Court on the 17th day of June, 2015) instituted Suit No. 0/667/2004 against the 1st set of respondents at the High Court, Onitsha on the 16th day of December, 2004 claiming the following reliefs:
?1. An Order of injunction restraining the 1st defendant, his servants and agents from collecting from the 2nd to the 22nd defendants the rents due from them for their holdings and the areas they occupy at 1A, Sokoto Road, Onitsha.
2. An order of injunction restraining the 2nd to the 22nd defendants from paying to the 1st defendant the rents due from them to the plaintiffs for the holdings and areas they occupy at 1A, Sokoto Road, Onitsha.
3. An order of the Court requiring the 2nd to the 22nd defendants to pay to the plaintiffs the rents due from them to the plaintiffs for the holdings and areas they occupy at 1A Sokoto Road, Onitsha.
4.As against the 1st defendant, the plaintiffs claim the sum of N1,469,961.00 (One Million four Hundred and Sixty-Nine Thousand Nine Hundred and Sixty-One
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Naira) being the balance of the rents up to the end of 2002 which the 1st defendant collected for the plaintiff from the tenants occupying various holdings and areas at 1A, Sokoto Road, Onitsha.
5.As against the 1st defendant, the plaintiffs claim the sum of N204,000.00 (Two Hundred and Four Thousand Naira) being the rent due from him to the plaintiffs for the year 2003 for the six stores and the two flats in the second floor of the two storey building which the 1st defendant occupies at 1A, Sokoto Road, Onitsha.
6. As against the 1st defendant, the plaintiffs claim the sum of N715,000.00 (Seven Hundred and Fifteen Thousand Naira) being the balance of the rents for the year 2003 which the 1st defendant collected for the plaintiffs from the 2nd to the 22nd defendants for the holdings and area they occupy at 1A, Sokoto, Road, Onitsha.
7. In the alternative to (6) above the plaintiffs claim against the 2nd to the 22nd respondents the total sum of N715,000.00 (Seven Hundred and Fifteen Thousand Naira) being the balance of the rents due from them to the plaintiffs for the year 2003 the liability of each of them being limited to that person?s
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rents for the said year 2003.
8. The plaintiffs claim severally against all the defendants payment of their respective rents as herein before set out for the year 2004 in respect of their holdings and areas they occupy at 1A, Sokoto Road, Onitsha.?
The appellant?s statement of claim is at pages 8 to 12 of the record of appeal.
On the 12th day of July, 2005, the 2nd set of respondents as applicants filed a notice of motion dated 12th July, 2005, praying the Court for an order joining them as the 2nd set of defendants in Suit No. 0/667/2004 and for them to defend the suit for themselves and as representing the Rebecca John Ogene Chinekwe family of Ndoni in Rivers State of Nigeria excluding the plaintiffs. The appellant filed various counter-affidavits in opposition to the application.
After hearing the parties, the learned trial Judge on the 11th day of April, 2006, delivered his ruling and granted the application for joinder. The appellant being dissatisfied with the ruling of the Court below has appealed to this Court.
?The appellant?s brief of argument dated 22nd October, 2015 and filed on 24th October, 2015 was
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settled by J. A. Okwe, Esq. for G. R. I. Egonu, SAN. In it, four (4) issues were formulated for the determination of the appeal, namely:
(1) Whether by the nature of the reliefs sought by the appellant in this case, the 2nd set of respondents are necessary parties to the suit?
(2) Whether the 2nd set of respondents discharged the onus on them as to their locus standi to be joined in the suit?
(3) Whether the learned trial Court was right in introducing into this case a non-existent issue as to who between the appellant and 2nd set of respondents is entitled to rents accruing from the property the subject matter of the litigation?
(4) Whether the learned trial Court was right in failing to consider and properly apply Order 3 Rule 10 of the High Court Rules of Anambra State, 1988?
The Amended 1st ? 22nd Respondents? brief of argument, settled by O. J. Nnadi, Esq., SAN, was dated and filed on 23rd October, 2015. He identified a sole issue for the determination of the appeal, thus:
Whether the trial Court was right in the Ruling of the court joining the 2nd set of defendants in the above suit as parties.
A notice of
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Preliminary Objection was raised at paragraph 4 to 4.01 of the same brief of argument, to the effect that the appeal is incompetent and that it should be dismissed or struck out. Arguments on it were ventilated at paragraphs 4.02 ? 4.13 of the said brief of argument.
The 2nd set of Respondents? brief of argument, settled by Chudi Obieze, Esq., A C I arb., was dated 22nd October, 2015 and filed on 23rd October, 2015. He nominated a sole issue therein, for the determination of the appeal, as follows:
Whether the trial Court rightly joined the 2nd set of Respondents in this suit, on the grounds that they are necessary parties?
The appellant?s further amended reply to the 1st set of Respondents? preliminary objection and also the appellant?s further amended reply to the 2nd set of Respondents? brief were each filed on 29th October, 2015.
It is expedient that the preliminary objection to the hearing of the appeal, at the instance of the 1st ? 22nd Respondents, be first considered and determined at this stage. The grounds upon which the preliminary objection, is predicated are that:
(a) The appeal is
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an interlocutory appeal over the exercise of discretion by the trial judge based on mixed law and facts.
(b) No leave of the Trial Court nor this Court was obtained by the Appellant before filing the appeal pursuant to Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria as well as Section 14(1) of the Court of Appeal Act and Order 7 of the Court of Appeal Rules 2007.
(c) Merely christening a ground of appeal as ?error-in-law or Misdirection in law? is not enough to make an appeal requiring leave but none was obtained,competent.
Arguments on the preliminary objection were canvassed at paragraphs 4.02 ? 4.13 of the Amended 1st ? 22nd Respondents? brief of argument. The main thrust of their contention is that since the application by the 23rd ? 25th respondents, to be joined as parties to the appellant?s action, involves the exercise of the court?s discretion, which border on mixed law and facts, the appellant ought to have sought and obtained the leave of the trial Court or of this Court, before filing his notice and grounds of appeal. He referred to several authorities, such
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as In Re: The Vessel M. V. Lupex (1993) 2 NWLR (pt. 278) 670 at 682; Williams v. Mokwe (2005) 14 NWLR (pt. 945) 249 (SC); IBWA Ltd v. ANAMCO Ltd (1995) 5 NWLR (pt. 396 428; Ogunleye v. Military Administrator, Ondo State (1996) 9 NWLR (pt. 471) 176; Mohammed v. Olawunmi (1990) 2 NWLR (pt. 133) 438 at 475 (SC); NALSA Team v. NNPC (1991) 8 NWLR (pt. 212) 652 etc all to the effect that where a ground of appeal is of mixed law and facts and no leave of the trial court nor of the appellate Court was obtained before filing the notice of appeal, the latter is incompetent and should be struck out.
The appellant, arguing per contra, in his further amended reply to the 1st set of respondents? contention, submitted that by virtue of Section 241(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria, the appellant can appeal as of right in respect of grounds of law contained in the Notice of Appeal. Reliance was placed on Dr. Oliver Onyali & Anor v. Chief Nwankwo Okpala & Ors (2001) 1 NWLR (pt. 694) 282 at 297. He insisted that grounds 1, 2, 3 and 4 are grounds of law and not grounds of mixed law and facts. He referred to Metal Construction
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(West African) Ltd v. D. A. Migliore & Ors. In re Miss C. Ogundare (1990) 1 NWLR (pt. 126) 299 at 315; Victor Adegoke Adewunmi & Anor v. Attorney-General of Ekiti State & Ors (2002) 2 NWLR (pt. 751) 4754 at 519; Alhaji Aromire & Ors v. J. J. Awoyemi (1972) 1 All NLR 101 at 107-108; Raymond Inyang & Ors v. Engr. Dr. Maurice A. Ebong (2002) 2 NWLR (pt. 751) 284 at 340; Chief Abusi David Green v. Chief Dr. E. T. Dublin Green (1987) 3 NWLR (pt. 61) 480; Mrs R. A. Idakula v. Alhaji Mohammed Adamu (2001) 1 NWLR (pt. 694) 322 at 341; Paul Nwadike & Ors v. Cletus Ibekwe & Ors (1987) 4 NWLR 718 at 733.
Resolution of Preliminary Objection:
Now, Section 241(1)(a) and (1) (b) and 242(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended, provide as follows:
?241. (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases ?
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) where the ground of appeal involves questions of law
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alone, decisions in any civil or criminal proceedings.
242 (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal?
It is apparent from Section 241(1)(a) above, that an appeal to this court, is as of right against any final civil or criminal decision of the High Court. And under Section 241(1)(b), the appeals on grounds of law alone, are of right. Therefore, where an appeal, is from an interlocutory decision of the trial Court, which borders on mixed law and facts, or facts, the leave of the trial Court or of this Court, must first be sought for and obtained, before the appeal can be filed. Hence, it is clear that two categories of rights of appeal are created under the Constitution namely appeals as of right and appeals which require leave of the trial court or this Court.
?There has been a great deal of arguments and misunderstanding on the distinction between a ground of law and a ground of mixed law and fact and also a ground of fact. The Supreme
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Court, unrelentlessly has graciously restated the road map to be navigated by the appellate Courts, in determining what they are. For example, in Jim-Jaja v. Commissioner of Police, Rivers State & 2 Ors (2012) 12 SCM (pt. 2) 295 at 290 ? 291; (2012) LPELR ? 20621 (SC) at pp. 10 ? 11, per Ngwuta, JSC, it was reiterated that:
?A ground of law, as distinct from a ground of mixed law and fact and a ground of fact, was explained clearly by Onnoghen, JSC in Ehinlawo v. Oke & Ors (supra) …… that: ?A ground of law arises where the ground of appeal shows that the Court of trial or appellate court misunderstood the law or misapplied the law to the proved or admitted facts.? Where the substance of a ground of appeal reveals a misapplication of law to facts proved or admitted at the trial, the ground of appeal is a ground of law and not of mixed law and fact or a ground of fact.?
On this, further see: B. A. S. F. Nigeria Ltd v. Faith Enterprises Ltd (2010) 1 SCNJ 223 at 247 ? 248; Garuba & Ors v. Omokhodion & Ors (2011) LPELR ? 1309 (SC) at 45 ? 47; (2011) 7 SCM 85; Calabar v. Ekpo
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(2008) 2 SCNJ 307 at 342 ? 344; Njemanze v. Njemanze (2013) 8 NWLR (pt. 1356) 376 at 393 ? 395 (SC); Minister of Petroleum & Anor v. Shipping Line (2010) 5 SCNJ 111.
It is trite too, that where an interlocutory appeal is to be lodged against a ruling of a trial Court, and the complaint is not purely on law, the appellant must obtain the leave of the trial Court or of this Court. Just see: Garuba v. Omokhodion (supra) at p. 45; Nwaolisah v. Nwabufoh (2011) LPELR ? 2115 (SC) at 25 ? 26.
Furthermore, it is settled law that even only one ground of appeal which is competent out of a number of grounds of appeal can on its own sustain the appeal. Nwaolisah v. Nwabufoh (supra) at p. 27; (2011) 8 SCM 139.
?Let us now apply the above restatement of the law, to the appellant?s grounds of appeal. Upon my perusal of grounds 1 and 3 of the notice of appeal, they appear to me, to be grounds of mixed law and facts. There was no way the application for joinder of the 23rd ? 25th respondents as parties to the appellant?s action, can be determined, without considering the affidavit, in support of the application and the
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appellant?s counter-affidavits, opposing the application. The alleged facts deposed to in the affidavits and counter-affidavits by the parties are contentious and not admitted facts. Therefore, the learned trial judge was bound to exercise his discretion one way or the other, the contentious facts, notwithstanding. I am of the considered and firm opinion that grounds 1 and 3 are of mixed law and facts. They are liable to be struck out, since no leave of the Court below nor of this Court was obtained before they were filed.
On the other hand, on my perusal of grounds 2 and 4, they are pure grounds of law. They did not require any leave of court for them to be filed. They are therefore competent. In effect, the preliminary objection succeeds in respect of grounds 1 and 3 only but fails in respect of grounds 2 and 4.
In consequence of the above, I shall now proceed and determine the appeal on its merits. I adopt the sole issue nominated by the 23rd ? 25th respondents, in my consideration and resolution of this appeal.
?Appellant?s Arguments:
The appellant?s learned counsel contends that it is the appellant?s family
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that has at all material times been the owner in possession of 1A, Sokoto Road, Onitsha and that the 1st set of respondents are the tenants at 1A Sokoto Road, Onitsha who had been paying their rents to the appellant?s family. It is the learned counsel?s submission that the reliefs sought by the appellant in the action is against the 1st set of respondents and there is no relief sought against the 2nd set of respondents because according to him, the appellant has no cause of action against the said 2nd set of respondents. Therefore, it is his submission that the appellant cannot be compelled to proceed against a person or persons whom he has no desire and intention to sue. He referred to Dollfus Mieg Et Compagnie S. A. v. Bank of England (1950) 2 All E. R. 605 at 608; Chief Abusi David Green v. Chief Dr. E. T. Dublin Green (1987) 3 NWLR (pt. 61) 480 at 492; In Re Yesufu Faleke Mogaji v. Oyedeji Akandi Mogaji & Ors (1980) 1 NWLR (pt. 19) 759 at 768; Alhaji J. Aromire & Ors v. J. J. Awoyemi (1972) 1 All NLR 101 at 107 ? 108; Mc Cheane v. Gyles (No. 2) 1 Ch. 911 at 97; Amos v. Raphael Truck & Sons Ltd (1956) 1 QB 357 at 369; Alhaji
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Aminu Dantsoho v. Alhaji Abubakar Mohammed (2003) 6 NWLR (pt. 817) 457 at 488. He furthermore submitted that since the 2nd set of respondents are laying claim to the property at 1A, Sokoto Road, Onitsha, which is not the claim of the appellant in the action at the Court below, the 2nd set of respondents must first sue the appellant and succeed in their claim of title to the said property before they can lay claim to the rents accruing from the same property. He insisted that the 2nd set of respondents have not disclosed or shown their direct legal rights/interest to the property in question, which have been threatened. He referred to Col. Hassan Yakubu (Rtd) v. The Governor of Kogi State & Ors (1995) 8 NWLR (pt. 414) 386 at 402. Therefore, according to him, the 2nd set of respondents, have no locus standi to bring the application for joinder at the Court below. He placed reliance on Alhaji Suara Yusuf v. Lasisi Kode (2002) 6 NWLR (pt. 762) 231 at 250.
?The appellant?s learned counsel furthermore, submitted that the trial judge wrongly introduced the issue of claim for rents for the 2nd set of respondents which was not in their application to be
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joined as parties to the appellant?s action. He insisted that it is not the function of the Court to introduce and formulate an issue for a party which was not put forward by the party. He referred to Punch Nig. Ltd v. B. B. Eyitene (2001) 17 NWLR (pt. 741) 228 at 255; Iwuorie Iheanacho & Ors v. Matthias Chigere & Ors (2004) 17 NWLR (pt. 901) 130 at 150; S. A. Adebanjo v. A. A. Brown (1990) 3 NWLR (pt. 141) 661 at 675; Alhaji Ahmadu Babale v. Amina Amina Abdulkadir (1993) 3 NWLR (pt. 281) 253 at 260.
Finally, the appellant?s learned counsel submitted that the learned trial judge did not properly consider and apply Order 3 Rule 10 of the Anambra State High Court (Civil Procedure) Rules, 1988 because the 2nd set of respondents did not provide sufficient materials to show that they are necessary parties to the appellant?s action and their being joined as parties to the action, led to a miscarriage of justice, against the appellant. He placed reliance on Alhaji J. Aromire & Ors v. J. J. Awoyemi (supra).
1st set of Respondents? Arguments:
Learned senior counsel to the 1st set of respondents, contended that by the
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affidavit evidence placed before the Court by the 2nd set of respondents, they say that they are the proper persons entitled to the rents being paid by the 1st set of respondents, with respect to the property at No. 1A Sokoto Road, Onitsha and the former cannot fold their hands and stand by without being joined to the appellant?s action when their interest in the property in question is at stake. He insisted that the learned trial judge was right in the exercise of his discretion pursuant to Order 3 Rule 10 of the Anambra State High Court Civil Procedure Rules, 1988; and joining the 2nd set of respondents to the appellant?s action. He referred to Kalu v. Uzor (2004) 12 NWLR (pt. 886) 1 at 22; Green v. Green (1987) 3 NWLR (pt. 61) 480 SC; In Re: Abacha (2000) 5 NWLR (pt. 655) 50. He furthermore submitted that since the 2nd set of respondents have demonstrated by their affidavit evidence, to the effect that they are entitled to the rents being paid with respect to the property in question, they are necessary parties who must be joined to the appellant?s action for a complete adjudication of the action and that the determination of the
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appellant?s claim, will affect the interests of the 2nd set of respondents, and that whether or not the 2nd set of respondents will succeed in their claim is not the issue for determination at this stage, but at the trial.
2nd set of Respondents? Arguments:
The learned counsel to the 2nd set of respondents, submitted that by virtue of Order 3 Rule 10 of the Anambra State High Court Civil Procedure, Rules 1988, the 2nd set of Respondents by their affidavit evidence, have shown that they are entitled to the subject matter of the appellant?s action, they also claim some share or interest in the subject matter of the action and that they will be affected by the result of the action, at the end of the day. He contended that in an application for joinder as a party to an action, the applicant needs only to establish prima facie, that he has sufficient legal interest in the subject matter of the action and that it is after being joined to the action, that he has the onus of proving his entitlement to the said subject matter of the action. He referred to Odeleye v. Adepegba (2001) 5 NWLR (pt. 706) 330 at 350; Busari v. Oseni (1992) 4 NWL5R
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(pt. 237) 557; M. H. W. U. N. v. Min. Of Labour and Productivity (2005) 17 NWLR (pt. 953) 120 at 158 ? 159; Yakubu v. Gov. Of Kogi State (1995) 8 NWLR (pt. 414) 386.
He furthermore, submitted that the learned trial judge rightly exercised his discretion, by joining the 2nd set of respondents to the appellant?s action, in accordance with the provisions of Order 3 Rule 10 of the Anambra State High Court Civil Procedure, Rules 1988 and on the authority of Kalu v. Uzor (2004) 12 NWLR4 (PT. 886) 1 at 22.
Resolution:
The law is well settled to the effect that the Court suo motu, or on the application of any of the parties to an action or on the application of any person who has demonstrated his sufficient legal interest, in the same action, can be joined as a party to the action, if the Court is satisfied that the applicant is a necessary party. Chief Onwuka Kalu v. Chief Victor Odili (1992) 6 SCNJ (pt. 1) 76 at 115; Ayankoya v. Olukoya (1996) 4 NWLR (pt. 440) 1; Nabaruma v. Offofile (2005) 13 NWLR (pt. 891) 599. The rule with respect to joinder of parties, was succinctly stated by the Supreme Court in In Re: Yesufu Faleke & Ors (1986)
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1 NWLR (pt. 19) 759 at 768; (1986) LPELR ? 1891 (SC) at pg. 41 per Karibi Whyte, JSC., inter alia:
?This rule deals essentially with joinder of parties to an action. Such joinder can be made by the Court suo motu or on application by a person or persons who can satisfy the requirement that his joinder is necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter. The governing principle which is a cardinal rule for the administration of justice is that principle conveniently expressed in Latin: Interest rei Publicae ut sit finis litium. The termination of litigation is in public interest. Hence where the issues between the parties involve third parties whose interest are affected and the omission of which was bound to result in further litigation, such parties are those whose presence will be necessary for the effectual and complete adjudication of the matter before the Court, and their presence as parties is a sine qua non for the purpose. See Oladeinde & Anor v. Oduwole (1962) WNLR 41 at p. 44.?
?His Lordship, furthermore referred to Ntiashagwo v.
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Amodu & Anor (1959) WRNLR at p. 273 ? where the plaintiff sued the 1st respondent alone for the recovery of possession of the house known as No. 16 Labinjo Steet, Mushin. The second defendant who lived in the same house with the 1st defendant, and who subsequently bought this house from plaintiff for 80 to whom 1st defendant had sold the house sought and obtained a Court order to be joined in the suit.
Now, for an application of this nature to succeed, the applicants like the 2nd set of respondents herein, must establish that:
(a) their presence in the action is necessary for the effectual adjudication of the matter, and
(b) the plaintiff such as the appellant herein must have a claim against the 2nd set of respondents and desire to pursue the claim against them, and
(c) the interest of the applicant in the action must be identical with that of the existing defendant, that is, the 1st of respondents herein.
?In the instant case, there is no doubt and the learned trial judge, rightly found that the claim of the appellant, as presently constituted, had nothing to do with the 2nd set of respondents. That is, the appellant
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has no cause of action against the 2nd set of respondents. Is the interest of the 2nd set of respondents identical with that of the existing defendant ? 1st set of respondents?
?The first relief claimed or prayed for by the appellant, is an injunctive order restraining the 1st defendant from collecting rents at 1A, Sokoto Road, Onitsha. There is Exhibit ?D? exhibited to paragraph 6 of the applicants?/2nd set of respondents? further affidavit filed on 4th Nov., 2005 at page 55 of the record of appeal; to the effect that the said Exhibit D was a rent receipt in respect of the property in question, issued to the 1st respondent on 20th July, 1995 for the period covering July ? December, 1995, on behalf of the Ogene Chinekwe family estate. This means that just as the 1st respondent had collected some rents from tenants in respect of the property in question, so also the 2nd set of respondents, had collected some rents from some tenants in respect of the same property at No. 1A, Sokoto Road, Onitsha. To that extent, it can be said that the interest of the applicants is identical with that of the existing 1st respondent. I
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think that, there ought to be some explanation with respect to the capacity in which the applicants/2nd set of respondents, collected some rents as evidenced by Exhibit D. I had thought that the appellant should have responded to this development in the amended appellant?s reply brief to the 2nd set of respondents? brief of argument. Therefore, the nagging question remains to the effect that, if the applicants have no interest in the property in question, how was it that they issued Exhibit D as a rent receipt to the 1st respondent. It is pertinent and instructive to note that paragraph 6 of the applicants? further affidavit at page 55 of the record of appeal, remains undenied because at paragraph 2 of the appellant?s further counter affidavit, of 7th July, 2005 at pages 56 ? 57 of the record of appeal, denied only paragraphs 4, 5, 7 and 8 of the applicants? said further affidavit aforementioned, leaving out paragraph 6 thereof.
?It seems to me, that in view of the foregoings, the applicants/2nd set of respondents, have demonstrated that although, the claim of the appellant is not targeted at them, they have nevertheless
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demonstrated some kind of interest prima facie, in the property in question, such that their presence in the action, as parties thereto, will enable the court to adjudicate effectually and completely on the matter of collection of rents on the said property. And that to my mind, will obviate a further litigation on the same subject matter. Therefore, I am satisfied that the learned trial judge, was not in error in granting the application for joinder of the 2nd set of respondents, to the appellant?s action.
On that premise, I resolve the sole issue in this appeal in favour of the 2nd set of respondents. In consequence therefore, the appeal is unmeritorious and it is accordingly dismissed.
The ruling of Vin Agbata, J., in re Suit NO. 0/667/2004 delivered on 11th April, 2006 is hereby affirmed.
Each side to bear own costs.
Other Citations: (2016)LCN/8826(CA)
