➥ CASE SUMMARY OF:
Christopher Medukam V. Uchenna Egemole (27 May 2010, CA/E/174/2005)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Joinder of party to suit;
Intervener;
Necessary party.
➥ CASE FACT/HISTORY
The Ruling of the lower court appealed against is at pages 34 – 43 of the Record of Appeal. The facts of the case as gathered from the Ruling of the lower court, put briefly are that on 13/12/1995, one Sylvanus Medukam as Plaintiff commenced Suit No. 0/782/95 – a land case against one Uchenna Egemole as Defendant. The dispute in the case is over the ownership of two landed properties known as Nos. 9 and 10 Ede Road, Okpoko, Ogbaru LGA, Anambra State. The Plaintiff claimed exclusive ownership of the properties in dispute; while the Defendant alleged joint ownership of the properties with the Plaintiff. The original Plaintiff – Sylvanus Medukam died sometime in December 1998 in the course of the proceedings, and the present Plaintiff on record – Christopher Medukam was subsequently substituted for him. The original Defendant also died sometime in June 2001 in the course of the proceedings and the present Defendant on record – Charles Egemole was subsequently substituted for him. After pleadings have been settled and I exchanged by parties, and issues joined, the Intervener/Applicant/Appellant (who will hereinafter be simply referred to as ‘the Appellant’) by a motion on notice dated 26/3/2001 and filed on 27/3/2001 sought for an order joining him as a Co-Plaintiff in the suit. The application for the joinder of the Appellant as a Co-Plaintiff was made by C.A. Nwokike of counsel. C.A. Nwokike of was the counsel who filed Suit No: 0/782/95 on behalf of the deceased original Plaintiff therein. The said Suit No. 0/782/95 will hereinafter be simply referred to as the ‘instant action’.
The application for the joinder of the Appellant was opposed by both Plaintiff/Respondent and Defendant/Respondent who respectively filed counter affidavits for this purpose. The lower court in its Ruling delivered on 13/4/2005 found no merit in the application for the joinder of the Appellant as a Co-Plaintiff in the case. The lower court therefore refused the order sought and dismissed the application. The Appellant being aggrieved with the Ruling of the lower court lodged an appeal against the same by a Notice of Appeal dated 25/4/2005 and filed on 26/4/2005.
➥ ISSUE(S)
I. Was the trial court right in holding that the Intervener/Appellant is not a necessary party to join in Suit No. 0/782/95 despite making a finding based on the affidavit and counter affidavit of the parties in the suit that the Intervener/Appellant once purchased the subject matter if this suit?
II. Whether a trial court can make a decision or ruling prejudicing a party issue in a substantive suit without an application to that effect by any of the parties to the proceedings?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE ISSUE IN THE CASE CAN BE PROPERLY DETERMINED WITHOUT HIS ABSENCE; APPELLANT IS NOT A NECESSARY PARTY
‘The first question to ask against the backdrop of the parameters for joinder of parties (which had extensively been stated hereinbefore) vis-a -vis the summary of the instant suit which the Appellant seeks to join as a Co-Plaintiff is what question is there for determination in the instant suit, which cannot be effectually and completely adjudicated upon unless the Appellant is joined as a Co-Plaintiff? It is my considered view that the question raised in the instant suit which the Appellant seeks to join as a Co-Plaintiff and which question is whether the properties in dispute are exclusively owned by the original Plaintiff as substituted by the present Plaintiff/Respondent or jointly owned by the Plaintiff/Respondent and the Defendant/Respondent as alleged by the original Defendant as substituted by the present Defendant/Respondent, glaringly does not require the presence of the Appellant who is claiming one of the said properties i.e No. 10, Ede Road, as his own, for its effectual and complete adjudication. Indeed, the very fact that the Appellant claims the property at No 10, Ede Road, as his own by virtue of having purchased the same from the original Plaintiff and which original Plaintiff instituted the instant suit claiming exclusive ownership of the same property, glaringly shows that there is conflict of interest between the Appellant and the original Plaintiff as substituted by the present Plaintiff/Respondent, in respect of the said property. This is because, while the original Plaintiff as substituted by the present Plaintiff/Respondent (and who by the Appellant’s case should be his vendor) is claiming the exclusive ownership of the said property on the one hand: the Appellant on the other hand is equally laying claim to the same property and this is definitely or glaringly an adverse claim as it relates to the Plaintiff/respondent. The question then is, would it be a judicial and judicious exercise of discretion on the part of the lower court to allow parties who glaringly have adverse claims in respect of a property in dispute, join together as Co-Plaintiffs to prosecute any claim against another party in respect of the said property? I simply do not see how allowing this can qualify as a judicial and judicious exercise of discretion.’
‘The Appellant having regard to his submissions would appear to be of the view that because the lower court made the finding that he once purchased the subject matter of the instant suit, his interest in this regard suffices to warrant his joinder as a Co-Plaintiff This is a clear misconception of the principles governing the question of joinder by the Appellant. The interest the Appellant has in the subject matter of the instant suit by virtue of his claiming to have purchased the same, without more, cannot warrant his joinder as a Co-Plaintiff in the case. The issue involved in the case and which as earlier sated is whether the properties in dispute are exclusively owned by the original Plaintiff as substituted by Plaintiff/Respondent or jointly owned by the plaintiff/Respondent and the Defendant/Respondent as alleged by the original Defendant as substituted by the present Defendant/Respondent glaringly does not require the presence of the Appellant who is claiming one of the said properties i.e. No 10, Ede Road, as his own, for its effectual and complete adjudication. The Appellant clearly is not a necessary party in the instant suit given his claim to the ownership of one of the properties involved therein. It would have been otherwise if the Appellant had been the vendor of the original Plaintiff as substituted by the present Plaintiff/Respondent and seeks to join the suit as a Co-Plaintiff for the purpose of defending the said Plaintiff/Respondent’s title. In the same vein, it would have been otherwise if the Plaintiff /Respondent was not claiming exclusive ownership of the property in dispute and thereby disputing the claim of any other person including the Appellant to the ownership of the property in question. The conflict of interest of the present Plaintiff/Respondent and the Appellant in the subject matter of the instant suit is most glaring and sufficiently identifiable at this stage. The submission of the Appellant that it is only when he files his Statement of Claim that the lower court will be in a better position to assess whether his interest is in conflict with that of the present Plaintiff/Respondent or not has no basis in law.’
‘The lower court in refusing the prayer of the Appellant for his joinder as a Cop-Plaintiff held that it is not proper to join him (i.e Appellant) because his interest in the subject matter of the litigation is in conflict with that of the existing sole Plaintiff. The lower court in my considered view is eminently correct in its finding in this respect having regard to the fact that I too, have hereinbefore found the interest of the Appellant in the subject matter of the instant suit to be in conflict with that of the present Plaintiff/Respondent as the Appellant’s interest is adverse to that of the Plaintiff/Respondent. The lower court equally found the Appellant not entitled to be joined as a Co-Plaintiff in the instant suit because he is not a necessary party. The lower court in arriving at the conclusion, applied the doctrine of lis pendens. Though, I do not consider the application of the doctrine of lis pendens proper in the circumstances of this case, I am still in agreement with the conclusion reached by the lower court that the Appellant is not a necessary party in the instant suit which he seeks to join as a Co-Plaintiff as the issue in dispute in the case can be effectually and completely adjudicated upon, in his absence in the circumstances Issue A is resolved against the Appellant.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[LOWER OUGHT NOT TO PRONOUNCE ON THE MERIT OF THE CASE AS IT CONCERNED THE APPELLANT SINCE THE APPELLANT WAS NOT A PARTY TO THE SUIT
‘It would appear most clear from the case of Ige v. Farinde (supra) that all a court has the vires or power to do in an application for joinder is to decide whether or not a prima facie case for the joinder being sought has been established by an applicant. The court is not to wade into the merits of the case This is because the true or correct test for joinder does not lie in the analysis of the constituents of an applicant’s rights, but rather in what would be the result on the subject matter if those rights were to be established. The Appellant in seeking to join the instant suit as a Co-Plaintiff, claimed to have purchased the subject matter of the said suit from the original Plaintiff. It is sufficient for -the lower court to have determined whether or not the Appellant qualified as a necessary party to join the suit as a Co-Plaintiff upon the alleged interest of the Appellant vis-a -vis the question which calls for determination in the instant suit. The lower court for this purpose did not need and is indeed precluded in law from dwelling on the validity of the alleged interest of the Appellant in the subject matter of the instant suit, talk less of pronouncing the interest in that regard null and void.’
‘The lower court irrespective of what necessitated its consideration of the doctrine of lis pendens, clearly waded into the merits of the instant suit, and it did this without joining the Appellant as a Co-plaintiff as prayed by him and yet nullified the alleged title of the Appellant to the subject matter of the said suit. This is unacceptable as it is wrong in law. The pronouncement of the lower court to wit: “…the Appellant bought nothing in the sense that his purchase of No 10, Ede Road, Okpoko (the subject matter of this suit) during the pendency of this suit is null and void, Therefore his interest in the property is not recognised or allowed by law and so cannot ground or support an application to join this suit as a co-plaintiff” cannot be and is indeed not a correct parameter for deciding whether or not the joinder sought by the Appellant should be allowed. It is not supported in the circumstances, Issue B is resolved in favour of the Appellant.’]
.
.
.
✓ DECISION:
‘Despite the resolution of Issue B in favour of the Appellant, the instant appeal however must fail given my earlier conclusions that the lower court is correct in refusing the joinder of the Appellant as a Co-Plaintiff in the instant suit he seeks to join as the said Appellant’s interest in the subject matter of litigation is not only in conflict with that of the existing Plaintiff therein, but also as the Appellant is not a necessary party whose presence is crucial for the effectual and complete determination of the suit (though not on the basis of lis pendens). Appeal is accordingly dismissed and the Ruling of the lower court delivered on 13/4/2005 affirmed.’
➥ FURTHER DICTA:
⦿ APPELLANT SHOULD MARRY ISSUE FORMULATED TO THE GROUND OF APPEAL
The Appellant however did not marry the Issues formulated for the determination of the appeal to the grounds of appeal. Appellants have been consistently admonished by the appellate courts to always marry the Issues formulated for the determination of the appeal with their grounds of appeal. See Tahir v. Kapitol Insurance Co. Ltd [2007] All FWLR (pt.370) 1482 at 1495; and Ezeja and Anor v. The State [2006) All FWLR (Pt.309) 1535 at 1559 — A.O. Lokulo-Sodipe JCA.
⦿ PARTIES TO A CASE CAN APPEAL ANY PART OF JUDGEMENT THEY ARE NOT COMFORTABLE WITH
The law clearly allows either of the parties to a case whether he is a plaintiff or a defendant to appeal against any aspect of the decision of the lower court such a party finds unconscionable or is not satisfied with. If both of the Plaintiff/Respondent and Defendant/Respondent feel aggrieved with the failure of the lower court to have based its decision in refusing the Appellant’s application for joinder on the ground of his counsel – C.A. Nwokike, Esq. having previously acted for the original plaintiff, they have the right to have appealed against the Ruling of the lower court on that ground Neither of them has done this. — A.O. Lokulo-Sodipe JCA.
⦿ PRINCIPLES GOVERNING JOINDER OF PARTIES
The principles governing the joinder of parties whether as a plaintiff or Defendant to an existing action; and whether the application is made by the Plaintiff or defendant in the said existing action or by an intervener, are not recondite the law reports are replete with cases in which the principles the joinder of parties have been enunciated. I will now refer to some of the cases. The case of Ige and Ors v. Farinde and Ors (1997) NWLR Pt. 354 42 clearly brings it out amongst others that the aims of joinder of a party to a pending suit are (i) to put an end to litigation and not to have parallel proceedings in which the self-same issue is raised leading to different and inconsistent results; and (ii) for the person joined to be bound by the result of the litigation. The case under reference also brings it out clearly that an applicant seeking to join a pending case has the duty of satisfying the court that he is a person who ought to have been joined in the suit in the first instance or that his presence before the court is necessary to enable the court to effectually and completely adjudicate upon and settle all issues involved therein. Again in the case under reference it was said that the main question for determination in an application for the joinder as a co-plaintiff or co-defendant is whether or not the applicant in question is a necessary party and that the court would order the joinder once the presence of the person is necessary to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter. Dealing specifically on the joinder of an intervener whether as a plaintiff or defendant in a pending case, the key test was said to be whether the applicant will be directly affected by the judgment of the court in the suit by curtailing or interfering with the enjoyment of his legal right. The reason for this, it was further said is because the only reason which makes it necessary to make a person a party to an action is so that he would be bound by the result of the action; therefore, the question to be settled in the action must be one which cannot be effectually and completely settled unless he is a party. The court entertaining an application for joinder brought by an intervener is enjoined to consider only whether a prima facie for joinder has been established and not wade into the merits of the case. Finally, in the case under reference, it was said that it is desirable that intending co-plaintiffs should make sure that there is no conflict of interest or any division of opinion between the original plaintiff and themselves is likely to arise. This is because co-Plaintiffs will not be allowed to sever or take inconsistent steps and ought to be represented at the trial by the same solicitor or counsel. The question or issue of joinder of parties and the parameters governing the same was also considered in the case of Rinco Construction Co. Ltd v. Veepee Industries Ltd and Anor (2005) All FWLR (Pt.264) 816. At pages 825-826 Kalgo, JSC; dwelling on the issue of joinder of parties said thus – “Let me take briefly the issue of joinder. Anyone whose presence is crucial and fundamental to the resolution of a matter before the court must be made a party to the proceedings. See D.O. Ogbene and Sons Ltd v. Amoruwa (1986) 3 NWLR (Pt.32) 856. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action 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. See Expso Limited v. Pafab Enterprises Limited (1999) 1 NWLR (Pt.591). Still on the parameters governing the joinder of parties, is the case of Alhaji Buba Manu Mutum Biyu v. Alhaji Abdulaziz Ibrahim and Ors (2005) All FWLR (pt, 274) 261 at 287. All the cases hereinbefore cited make it clear that the interest of the party being sought to be joined in a case, or the interest such a party is said to have in the case alone; and/or the desire solely, that the said party being sought be joined should be bound by the decision in the case; are no valid basis for ordering or permitting a joinder. For an order of joinder to be made, on the basis of the interest of the party being sought to be joined in a case and/or for the purpose of having the said party bound by the outcome of the case, there must be a question in the action between the existing parties which cannot be effectually and completely settled unless the said party is made a party. — A.O. Lokulo-Sodipe JCA.
⦿ A PARTY CANNOT BE A PLAINTIFF AND A DEFENDANT IN THE SAME SUIT
It would be noted that the Appellant is not seeking to join Suit No. 0/362/99 as a Plaintiff. It is the instant suit before the lower court, i.e Suit No. 0/782/95 that he wants to join as a Co-Plaintiff. Indeed, the Appellant in law cannot apply to be joined as a Co-Plaintiff in Suit No: 0/362/99. This is because he is already a Defendant therein and the position of the law is that a party cannot be both a plaintiff and defendant in the same action. — A.O. Lokulo-Sodipe JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ayobode Olujimi Lokulo-Sodipe, JCA
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
C.A. Nwokike Esq.
⦿ FOR THE RESPONDENT(S)
E.O. Maduka Esq.
B.C. Uzuegbu.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
