IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT ABEOKUTA
ON THURSDAY THE 27TH DAY OF FEBRUARY, 2014
BEFORE THEIR LORDSHIPS:
M. B. DONGBAN-MENSEM
- JUSTICE, COURT OF APPEAL
CHIDI NWAOMA UWA
- JUSTICE, COURT OF APPEAL
HARUNA SIMON TSAMMANI
- JUSTICE, COURT OF APPEAL
APPEAL NO. CA/I/279/2008
BETWEEN:
MOSES APABIEKUN & ORS
……..
……..
…..…
APPELLANTS
……… …….
RESPONDENTS
AND
PATRICK BUKO & ORS
………
JUDGMENT
(DELIVERED BY MONICA BOLNA’AN DONGBAN-MENSEM, JCA)
This appeal challenges the Ruling of the Ogun State High Court holden at
Otta per Hon. Justice A. O. ASENUGA (J) delivered on the 28th
February, 2008 against the Appellants as 9th Applicants and in favour of
the 1st Respondents.
The parties shall hereafter be referred to simply as Appellants and
Respondents respectively.
APPEAL NO: CA/I/279/2008
1
The brief facts of this case are as stated by the Appellants is that the
Appellants sought to be joined in Suit No.HCT/139/2009 as Co-Plaintiffs
before the learned trial Judge. The Respondents opposed the application,
and the learned trial Judge dismissed the application as an abuse of court
process.
Distraught by the decision of the trial court, the Appellants filed a notice of
appeal on the 11th March, 2006 but in which dated 6th March, 2008 in
which four grounds of appeal were raised.
On the 10th February, 2014, when this appeal was heard, the learned
Counsel for the Appellant’s adopts brief dated 18th December, 2008 and
filed on the 2nd January, 2009.
The learned Counsel drew the attention of the court to the fact that order
of this court was made for the Appeal to be heard with Appellant’s brief
alone.
The Appellants formulated 4 issues for the determination of this court as
follows:-
1. Whether the Appellants herein are necessary party to this suit in the
effective, complete and effectual determination of the issue of
ownership and all other issues emanating from the land comprised in
the counter claim of the Defendants/Respondents.
2. Whether it was right for the learned High Court Judge not to have
consider the claim of ownership of a portion of the land comprised in
the counter claim of the Defendants/Respondents before deciding
not to join them as co-plaintiffs.
3. Whether the Appellants motion for joiner is an abuse of court process
or whether their joinder will amount to an abuse of court process or
whether it lies on the mouth of the Defendants/Respondents to raise
the issue of abuse of court process when they are the author.
APPEAL NO: CA/I/279/2008
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4. Whether denying the Appellants opportunity to defend their right to a
portion of land comprised of the counter claim of the
Defendants/Respondents did not amount to denial of fair hearing.
Issue 1
Whether the Appellants herein are necessary party to this suit in the
effective, complete and effectual determination of the issue of ownership
and all other issues emanating from the land comprised in the counter
claim of the Defendants/Respondents.
Learned Counsel for the Appellants stressed that the counter claim of the
Respondents included their land in the suit which made them to apply to
be join as parties to defend their interest. That they are necessary parties
to the just, conclusive and effectual determination of issues as far as the
counter claim is concerned and that they will be prejudiced if not join as
parties to the suit.
Counsel also submits that the trial court and this court are empowered by
the Rules of court and case laws to join a necessary party to a suit to avoid
inter alia, multiplicity of cases, bound by decision, fairness and justice.
(Refers Order 4 Rules 1 & 3 Court of Appeal Rules, Order 13 Rule 1
Ogun State High Court Rules and the cases of A-G of the Federation
v. A-G of Abia State & Ors (2001) 7 SC (Pt.1) 32 @ 49-50, Oduola
v. Coker (1981) 5 SC 197,227, Olowo Okukuje v. Odejenima
Akwido (2001) 1 SC (Pt.ll) 80 @ 89, Chief Paul D. Fubara & Ors v.
Chief Festus O. S. Minimah & Ors, Chief Raymond D. Ogolo (2003)
5 SC 141 @ page 158)
Counsel also submits that apart from the Appellant’s application, the facts
of this case shows that the Appellants are necessary parties which the trial
APPEAL NO: CA/I/279/2008
3
court can suo moto join as parties for the interest of justice as issues has
been joined between the Appellant and the Defendants/Respondents which
the court has to resolve and refusing to join them will be tantamount to
sending them away from the throne of justice. That their affidavit in
support of their motion (pages 32-35 of the record) and reply (pages 3738 of the record) to counter claim were not denied or controverted. That
the law is clear as to the evidence that is not denied or controverted is
deemed admitted. (Refers Stephen Lawson Jack v. The Shell
Petroleum Development Co. of Nigeria Limited (2002) 7 SC (Pt.ll)
112 @ 122-123, A-G Ondo State v. A-G Ekiti State (2001) 9-10 SC
116 @ 135).
Counsel also submits that the principle of equity is in the Appellant’s favour
as whatever is good for the goose is also good for the gander. Whatever is
good for the CO-Applicant now Co-Plaintiff as ordered by the trial court is
also good for the Appellant as they suffer the same fate and that whatever
made the trial court to grant the Co-Plaintiffs their application should be
extended to the Appellant.
On the authority in Samuel v. Samuel (1978) 12 Ch. D 152, Counsel
submits that where a party claim ownership of a piece of land in dispute or
interest between two parties he or she must be joined or allowed to come
and explain or defend his right to such claim and that contrary will be
tantamount to fair hearing. (See also Prince Duro Aderemi Ladejobi &
Ors v. Otunba Annofi Afolorunsho Oguntayo & Ors (2005) 7 WRN
22 @ 50)
APPEAL NO: CA/I/279/2008
4
Counsel finally urges this court to set aside the ruling of the trial court and
hold that the Appellant are necessary party to the effective, effectual and
complete
adjudication
in
respect
of
the
counter
claim
of
the
Defendants/Respondents are concerned and order their joinder as a CoPlaintiff in this suit.
Issue 2
Whether it was right for the learned High Court Judge not to have consider
the claim of ownership of a portion of the land comprised in the counter
claim of the Defendants/Respondents before deciding not to join them as
co-plaintiffs.
Learned Counsel for the Appellant submits that a the law is that a court is
bound to consider all issues raised by a party in support of his or her case
and not considering only the case of a party and decide the case on it.
(Refers Saburi Adebayo v. A-G of Ogun State (2008) 2-3 SC (Pt.ll)
50 @ page 61, Mr. David Odetayo v. Mr. Micheal Bamidele (2007)
35 WRN 1 @ 15, Marcus Opuiyo & Ors v. Johnson Omoniwari &
Anor (2007) 39 WRN 1 @ 10-11)
Counsel also reiterated his earlier submission in issue one to the fact that
the Defendants/Respondents counter claim involves the Appellants’ land
and his affidavit in support of his application which was not controverted
and that all they are seeking for is to be join as parties to enable them
state their grievances as proper and necessary parties and to prevent a
situation where the Defendants/Respondents will take over their land
behind them. That the trial court failed to consider the case of the
Appellant before arriving at a decision not to join them and has denied the
Appellant the Constitutional guaranteed right of fair hearing. (Refers Chief
Mene Kenon & Ors v. Chief Albert Tekam (2001) 34 WRN 98 @
APPEAL NO: CA/I/279/2008
5
112, Mrs Evangelime Fombo v. River State Housing & Property
Development Authority & Anor. (2005) 5 SC (Pt.ll) 102 @ 111,
John Agbo v. The State (2006) 1 SC (Pt.ll) 73 @74, Section 36 of
the Constitution 1999). While in the case of Alhaji Lawal Tunbi v.
Israel Opawole (2000) 1 SC 1@ II it was held that
“…justice was not done to a party whose case before the
Appellate court was not considered on his brief before a
decision affecting his right was reached. This is against the
rule of natural justice as well as a violation of the
Respondent’s right as embodied in section 33 of the 1979
Constitution (now section 36)’’
And submits that the High Court failed to consider the Appellants case that
their land is included in the Defendants/Respondents counter claim and
their interest will be jeopardize in the land and that they are not the author
of the alleged abuse of court process but the Defendants/Respondents
before arriving at the ruling and had caused them miscarriage of justice
and urges this court to correct the wrong by considering the consequences
if they are not join as co-plaintiffs.
Issue 3
Whether the Appellants motion for joiner is an abuse of court process or
whether their joinder will amount to an abuse of court process or whether
it lies on the mouth of the Defendants/Respondents to raise the issue of
abuse of court process when they are the author.
Learned Counsel agrees that the law frowns at abuse of court process, he
went further to look at the condition of an abuse of court process vis-à-vis
this case. (Refers pages 34-36A & 45 of the record)
APPEAL NO: CA/I/279/2008
6
Counsel submits that it is wrong for the Defendants/Respondents who
knew that there is a case in the Customary Court between them and the
Appellant to come around to institute a fresh action through their counter
claim in this suit where they sought from the High Court declaration that
the Appellants’ land are theirs. That the trial court refusing to join the
Appellants to enable them protects their interest as inequitable and that
the Defendants/Respondents are using the law of abuse of court process
to do mischief. That the Defendants/Respondens cannot aprobate and
reprobate. (Refers Honourable Muyiwa Inakoju Ibadan SouthWest
& 17 Ors v. Honourable Abraham Adeolu Adeleke & 3 Ors (2007) 1
SC (Pt.4) @ page 1 @ 123).
Counsel also submits that the issue of abuse of court process did not arise
in this case as the application for joinder of the Appellants does not
amount to abuse of court process as it is grounded in both law and equity.
Citing the Equity maxim which says “Equity aids the vigilant and not
the indolence’’ that they have the constitutional right to protect their
interest in the property and not to sit down and allow it being taken away.
(Refers A-G of River State v. Ude & 12 Ors (2006) 6-7 SC 131 @
142-143, Hewawatch Communications Limited v. Alhaji Aliyu
Ibraham Atta (2006) 4 SC (Pt.ll) 114 @ 129)
Counsel
further
submits
that
the
counter
claim
of
the
Defendants/Respondents shows that they have no interest in the case
before the Customary Court for that before the High Court and urge this
court to hold so. (Refers Chief Ukwadinmor Clement Ucheshukwu v.
Joan Onyemachi Bielonwu & Ors (2008) 44 WRN 138 @ 155). He
added that joining the Appellants as Co-Plaintiffs before the High Court is
APPEAL NO: CA/I/279/2008
7
not an abuse of court process but an action in the right direction to enable
the Appellants defend their interest.
Issue 4
Whether denying the Appellants opportunity to defend their right to a
portion of land comprised of the counter claim of the
Defendants/Respondents did not amount to denial of fair hearing.
Learned Counsel for the Appellant looked at fair in this case as giving a
party opportunity to state his or her side in a case. (Refers section 36 of
the Constitution of FRN, 1999 and the case of Alhaji Lawal Tunbi v.
Israel Opawole (2000) 1 SC 1 @ 11). He submits that the trial Judge
denied the Appellant fair hearing for refusing to join the Appellant as a
party having stated that the Appellants land is included in the counter
claim of the Respondents.
The Appellants brought an application pursuant to Order 17 Rule 3 (1)
and 10 of the Court of Appeal Rules 2007 and the inherent powers of
this court an order of setting down and hearing this appeal on the
Appellant’s brief alone in default of the Respondents’ brief. This application
dated 13th November, 2009 and filed on the same date was granted on the
16th March, 2010. The application was deposed to by one Funke Osho, a
litigation secretary of the law firm of the Appellants learned Counsel, the
application has two paragraphs affidavit in support of the motion. This
appeal is therefore heard and shall be determined on the brief of argument
of the Appellant alone.
The narrow issue for determination in this appeal is the refusal of the
learned trial Judge to join the Appellant in the suit of the Respondent. The
APPEAL NO: CA/I/279/2008
8
reasons for the refusal are better convey in the Ruling of the learned trial
Judge which is hereby reproduced:“…at the point of moving the application, Counsel for the
Defendants/Respondents Mr. M. A. Zakariyau conceded to
the joinder of all the applicants to this suit but objected to
the joinder of the 9th Applicants stating that the joinder of
the 9th applicants will amount to an abuse of Court process.
He refered the court to Exhibit ‘A’ attached to their counter
affidavit.
Mr. Akinola learned Counsel to the applicants responded
that the 9th applicants has a right to defend themselves as
long as the main suit is before the court.
Paragraph 14, of Counter Affidavit to motion dated 6th June,
2007 filed by the Defendants/Respondents goes thus:
“14 That I was informed by M. A. Zakariyau and I
verily believed him that it will amount to abuse of
court process if the parties seeking to be joined
especially the 9th Applicant are allowed to join in
this suit as there is a pending suit at the
Customary Court, Ado-Odo, Ota against the 9th
Applicant in respect of the same subject matter.’’
The Applicants filed a reply to the Counter Affidavit of the
respondent but surprisingly they were very silent on the
issue raised in paragraph 14 of the Respondent Counter
Affidavit. I take their silence on this issue to amount to an
admission that the content of the paragraph is true. It will
no doubt amount to an abuse of court process if the 9th
Applicants are allowed to join in this suit while there is a
case pending on the same sybject matter at the Customary
Court,
Ado-Odo
between
them
and
the
th
Defendants/Respondents. The 9 Applicants are therefore
disallowed from joining this suit as Plaintiffs…’’
APPEAL NO: CA/I/279/2008
9
In the case of Green v. Green (1987) 3 NWLR (Pt.60) 480 the
Supreme Court laid down the principle for joinder as follows:“the court should ask itself the following question
(a)
(b)
(c)
(d)
Is the cause or matter liable to be defeated by nonjoinder?
Is it possible to adjudicate on the cause or matter
unless the 3rd party is added as a defendant?
Is the 3rd party a person who should have been joined
in the first instance?
Is the 3rd party a person whose presence before the
court as a defendant will be necessary in order to
enable the court to effectually and completely
adjudicate or settle all the questions involved in the
cause or matter?’’.
No doubt the grant or refusal of an application for joinder is an exercise at
the discretion of the trial Judge who is seize of the pleadings of the parties.
The exercise however must be done judicially and judiciously. Discretion
declares my lord Fabiyi JSC is a matter of being discreet. (See Ibegwura
Ordu Azubuike v. Peoples Democratic Party & Ors LER (2014)
SC.476/2012)
This court would ordinarily not interfere with an exercise of discretion by
the trial court. I had earlier in this judgment reproduced a part of the
Ruling of the trial court which is at pages 47-49 of the record. Nowhere is
it shown that the learned trial Judge considered any of the ingredients for
joinder listed above in the case of Green v. Green (supra) or as made out
in any other case of the Apex court or this court. This approach of the
learned trial Judge does not exhibit a judicial and judicious consideration of
APPEAL NO: CA/I/279/2008
10
the application place before the court, notwithstanding the failure of the
Appellants to respond to the fact of the existence of another case between
the same parties in the Customary Court at Adodo-Otta.
The learned trial Judge was not properly guided by this principle.
The learned Counsel for the Appellant has raised and argued other issues,
the consideration of which will lead this court into the premature
determination of issues pending before the trial court. It will fall contrary to
the principle of law in the determination of an interlocutory appeal to delve
into the substantive matter pending before the learned trial Judge. It is
therefore pertinent that this court refrains from considering issues outside
the main grouse of the Appellant which is non-joinder in the suit pending
before the learned trial Judge.
I agree with the submission of the learned Counsel for the Appellant that it
is proper that the Appellants are joined for an effectual and proper
determination of the issues between all the parties. The Respondents being
also parties in the suit pending at the Customary Court cannot be heard to
raise the issue of multiplicity of actions being themselves engrossed in both
matters as obvious from their objection to the joinder of the Appellants.
Abuse of court process would result if the Appellants being aware of the
existence of the present suit before the trial court stand by only to take up
another suit at the conclusion of the present one. Accordingly, the
Appellants should be joined as parties in the suit before the learned trial
Judge.
APPEAL NO: CA/I/279/2008
11
This appeal therefore succeeds.
It is hereby ordered that the Appellants shall be joined as Co-Plaintiffs in
the suit No: HCT/139/06 pending before the trial court.
I award the cost of N30, 000.00 to the Appellants and against the
Respondents.
M. B. DONGBAN-MENSEM
JUSTICE, COURT OF APPEAL
COUNSEL:
Omoniyi Akinmola Esq. for the Appellants.
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