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COL. HASSAN YAKUBU (RTD)
THE GOVERNOR KOGI STATE AND OTHERS
IN THE SUPREME COURT OF NIGERIA
TUESDAY, 19TH SEPTEMBER, 1995.
8 NWLR (pt.414)386
BEFORE THEIR LORDSHIPS
SALIHU MODIBBO ALFA BELGORE, J.S.C. (Presided and Read the Leading Judgment)
ABUBAKAR BASHIR WALI, J.S.C.
IDRIS LEGBO KUTIGL J.S.C.
MICHAEL EKUNDAYO OGUNDARE, J.S.C.
EMANUEL OBIOMA OGWUEGBU,J.S.C.
COL. HASSAN YAKUBU (RTD.)
Yunus Ustaz Usman (with him, Adamu E. Mohammed) – for the Appellant
O.E. Akpan, [Legal Officer 1, Ministry of Justice, Kogi State] – for the 1st – 4th Respondents
ACTION – Parties to an action – Joinder of parties – Principles governing.
ACTION – Parties to an action – Proper parties – Who constitute – Relevant considerations.
APPEAL -Joinder of parties to an appeal – Principles governing – Power of Court of Appeal to order joinder-Where derived -When exercisable-Order 3 Rule 6(1) of the Court of Appeal Rules, 1981(as amended) considered – Iyimoga v. Governor of Plateau State (1994) 8 NWLR (Pt.360) 73 overruled.
CONSTITUTIONAL LAW – Fair hearing – Meaning of and connotation.
FAIR HEARING – Meaning and connotation affair hearing.
PRACTICE AND PROCEDURE – Joinder of parties to an appeal – Principles governing – Power of Court of Appeal to order joinder – Where derived – When exercisable-Order3Rule 6(I) of the Court of Appeal Rules, 1981 (as amended) considered – Iyimoga v. Governor of Plateau State (1994) 8 NWLR (Pt. 360) 73 overruled.
PRACTICE AND PROCEDURE – Parties to an action – Joinder of parties – Principles governing.
PRACTICE AND PROCEDURE – Parties to an action – Proper Parties – Who constitute – Relevant considerations.
WORDS AND PHRASES –Fair hearing – Meaning of and connotation.
BELGORE, J.S.C. (Delivering the Leading Judgment):
At the High Court of Kogi State holden at Lokoja, the appellant asked for the following reliefs:
(i) An order for the immediate production of the body of the applicant before the Honorable Court, and for the immediate release of the applicant from detention. .
(ii) A. declaration that the continued detention on (House Arrest) of the applicant by the respondents at the Government Guest House Lokoja since the 28th day of December, 1992 is unlawful, unconstitutional, illegal, null and void.
(iii) A Declaration that the purported deposition of the applicant from the stool of Ejeh of Ankpa by the respondents is unlawful, unconstitutional, illegal, null and void.
(iv) An order of injunction restraining the respondents, their agents, servants privies, assigns, representatives and whosoever form threatening or further threatening and harassing the applicant whatsoever.
(v) An order of injunction restraining the respondents, their agents, servants, privies, assigns, representatives and whosoever from imposing and or installing any other persons to the stool of the Ejeh Ankpa.
(vi) Ten million naira (N10,000,000.00) only being special and general damages against the respondents; jointly and severally for the flagrant abuse and infringement, on the fundamental rights of the applicant by the unlawful detention, embarrassment and the purported deposition of the applicant without fair hearing”
The respondents to the motion were:
Meanwhile the appellant applied before the trial Court for stay of execution of the judgment of 28th January, 1993 aforementioned and an order restraining the respondents from appointing any other person to take over the stool of Ejeh Ankpa pending the determination of the appeal. This application was also refused and was therefore dismissed by the learned trial Judge. By a letter dated 3rd February 1993 and reference number MAO/LGCA/CHI/S/31 addressed to Ahmadu Yakubu (now the 5th respondent before us) he, Ahmadu Yakubu was appointed the Ejeh of Ankpa in succession to the appellant.
In an application dated 24th March 1994 the 5th .respondent, Ahmadu Yakubu, sought to be joined as co-respondent to the appellant’s appeal in the Court of Appeal. The appellant filed a counter affidavit to this motion dated 4th May 1993. This application was withdrawn by the 5th respondent and struck out on 16th June 1993. There was however another motion by the 5th respondent filed on 17th day of May 1994 brought under S. 33(I) of the Constitution of 1979; Order 1 Rule 22 and Order 3 Rule 6(1) proviso, Court of Appeal Rules 1981; as amended and under inherent powers and sanctions of that Court under Section 6(a) and (b) of the Constitution of the Federal Republic of Nigeria 1979. In the application the 5th respondent sought to be joined as co-respondent in the appeal being a person directly affected by the possible result of the appeal having regard to the subject-matter appealed against from the High Court decision of 28th January 1993 and for consequential order directing all the processes already in Court, and to be later in Court, to be served on him i.e. that the record of proceedings, the Notice and all the Grounds of appeal, all the Briefs of Argument already filed m be served on him, and to allow him on receipt of all these documents a period of forty-five days to file his own brief of argument as co-respondent. On that same 16th June 1994 when the first motion was withdrawn and struck out, parties argued the motion and ruling was reserved to 27th day of July, 1994. There is a counter-affidavit to the motion argued on 16th June 1994 and it was filed on 14th June 1995, but neither counsel for either side nor the Court of Appeal alluded to it. It would appear, as is normal in several instance of late filing of court-affidavit learned Justices were unaware of its existence as it must have been less than forty-eight hours to the hearing date and the justices’ files never contained a copy. At any rate the court official responsible for serving the counter-affidavit was producing it for the first time on 27th September 1994, when the documents for the record of this appeal were being produced. That was when Ajala, Esq, S.A.N for the 5th respondent saw it as he was unaware of the existence of that counter-affidavit on 16th June, 1994. Onafowokan, Esq. S.A.N. who argued to oppose the motion in the Court of Appeal never adverted to the counter-affidavit. The Court of Appeal in its ruling allowed the 5th respondent to be joined as co-respondent and this gave ground for this appeal.
The appellant formulated three issues for determination based on his grounds of appeal as follows:
“(i) Whether the failure of the Court of Appeal to consider the appellant’s Counter-affidavit filed on the 14th day of June, 1994 in opposition to 5th respondent’s Motion for joinder dated the 17th day of May, 1994 amounts to denial of the appellant’s right to fair Hearing.
(ii) If the answer to the first issue is in the affirmative, can the ruling of the Court of Appeal dated the 27th day of July, 1994 which failed to consider the appellant’s counter-affidavit sworn to on the 14th of June, 1994 stand?
(iii) Even if the appellant’s right to fair hearing were not breached, is the 5th respondent a necessary party to this action having regard to the circumstances of this case?”
As against this the 5th respondent formulated the following two issues:
“1. Whether there has been any breach of the principles of natural justice affecting the appellant’s right to fair hearing.
It is clear from the printed record that the counter-affidavit of 14th June 1994 was not before the Court of Appeal Justices when the motion was being argued on 16th June 1994 as neither the Court nor any of the counsel for either party alluded to it. But the big question is whether the matter of non-consideration of the counter-affidavit has adversely affected the result or whether it was in breach of fair hearing rule or even against the Constitution so that the joinder of the 5th respondent was wrong in law. The counter-affidavit to the earlier motion withdrawn and struck out on the 16th June 1994 containing detailed sixteen paragraphs was erroneously used for the motion. It must be pointed out that in fact this counter-affidavit is not only longer than the one filed on 14th June 1994, it contains more relevant facts to a just declaration of the-motion. The counter-affidavit filed on 14th June 1994 contained only two paragraphs, the second paragraph containing ten sub-paragraphs (a) – (1). The purport of the two counter-affidavits is simply that the 5th respondent has nothing to lose by the appeal and that he was not a necessary party.
It is on record, and clearly undisputed, that the 5th respondent has been appointed the Ejeh of Ankpa in succession to the appellant. For purpose of law, until a court of competent jurisdiction declares his appointment null and void he is the Ejeh of Ankpa and any suit likely in its result to affect that status of his must attract his concern and he can intervene by asking to be joined as a party. Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 allows any person access to Court in the determination of his civil rights and obligations. The fact that the Court of Appeal never adverted to the counter-affidavit of 14th June 1994 cannot be the fault of the Justices as the parties counsel – Ajala, S.A.N. and Onafowokan, S.A.N. – never adverted to it in their oral submission before the Court in arguing the motion. The arguments were full and interesting but one fact that the appellant could not demolish is the interest of the 5th respondent in the appeal. To my mind, the Court of Appeal was never intimated of the existence of the counter-affidavit of 14th June 1994 and for it to erroneously rely on a fuller and better counter-affidavit no more before the Court but containing all the one of 14th June 1994 contained and more cannot by fig of imagination be considered a miscarriage of justice. Assuming that even no counter-affidavit was considered at all it is very clear that 5th respondent had an interest to protect and get argued along with the appeal. I could not imagine what the Court of Appeal could have done with the elusive counter-affidavit of 14th June 1994 on the basis of the submissions of -counsel before it. The counter-affidavit in question could certainly not have made any difference; to my mind it could have made the decision of that court much easier. The absence of the counter-affidavit does not affect the merit of the case – see S. 227(1) Evidence Act and the case of Odunsi v. Azeez Bamgbala & 3 Ors (1995) 1 NWLR (Pt. 374) 641, 656. The parties were given fair hearing and if the counter-affidavit was excluded in the instant case it was the fault of the appellant not that of the Court as explained earlier.
In my view this appeal lacks merit and I dismiss it with N 1,000.00 costs to each set of respondent against the appellant. The decision of the Court of Appeal allowing the 5th respondent to intervene as a co-respondent is therefore upheld.
WALI, J.S.C.: I have read before now the judgment of my learned brother, Belgore, J.S.C. and I entirely agree with the reasons he gave for dismissing the appeal. For the same reasons which I hereby adopt, I also dismiss the appeal with N1000.00 costs to the respondents.
KUTIGI, J.S.C.: I read before now the judgment just delivered by my learned brother Belgore, J.S.C. I agree with him that the 5th respondent being the incumbent traditional titleholder of the Ejeh of Ankpa can intervene by asking to be joined as a party in the suit and which suit would likely in its result affect his status as such Ejeh of Ankpa. It is common ground that 5th respondent is presently the Ejeh of Ankpa and as such has an interest to protect. I think failure by the Court of Appeal to consider appellant’s Counter-Affidavit did not in any way affect the merit of the application before it.
The appeal is accordingly dismissed with costs as assessed.
OGUNDARE, J.S.C.: The appellant was at one time the Ejeh of Ankpa in Kogi State of Nigeria. Following his removal from office by the Governor of Kogi State and detention, under house arrest, he instituted proceedings pursuant to the Fundamental Rights (Enfocement) Rules, claiming the following reliefs, as amended by order of court made on 18/1/93:-
“(i) An order for the immediate production of the body of the applicant before the Honorable Court and for the immediate release of the applicant from detention.
(ii) A declaration that the continued detention (House Arrest) of the applicant by the respondents at the Government Guest House Lokoja since the 28th day of December, 1992 is unlawful, un-constitutional, illegal, null and void.
(iii) A declaration that the purported deposition of the applicant from the stool of Ejeh of Ankpa by the respondents is unlawful, un-constitutional, illegal, null and void.
(iv) An order of injunction restraining the respondents, their agents, servants, privies, assignees; representatives and whosoever from threatening or further threatening and harassing the applicant whatsoever.
(v) An order of injunction restraining the respondents, their agents, servants, privies, assigns, representatives and whosoever from imposing and or installing any other persons to the stool of the Ejeh of Ankpa.
(vi) Ten million Naira (NI0,000.000.00) only being special and general damages against the respondents, jointly and severally for the flagrant abuse and infringement on the fundamental rights of the applicant by the unlawful detention, embarrassment and the purported deposition of the applicant without fair hearing.”
The matter went to trial at the end of which all the reliefs sought by him were refused. Being dissatisfied, he appealed to the Court of Appeal.
While the appeal was pending, Alhaji Ahmadu Yakubu (now 5th respondent) was on 3/2193 appointed the Ejeh of Ankpa by the Governor, Following his appointment Alhaji Yakubu promptly applied to the Court of Appeal to be joined as a respondent in the appeal before that Court on the ground that he was a person directly affected by the appeal. The application was opposed by both the appellant and the original respondents, that is the 1st-4th defendants. The learned Justices of the Court of Appeal, after addresses by learned counsel for all the parties, granted the application and ordered:
“1. Leave is granted to the applicant to be joined as co-respondent in the appeal No.CA/K/46/93 being a person directly affected in the appeal having regard to the subject matter of the appeal from the decision of the lower court dated 28th January 1993.
The appellant was unhappy with this decision and has, with leave of this Court, appealed on four grounds of appeal. And in his Brief of argument, he set out the following three issues as calling for determination in the appeal:
“(i) Whether the failure of the Court of Appeal to consider the appellant’s Counter-affidavit filed on the 14th day of June, 1994 in opposition to 5th respondent’s Motion for joinder dated the 17th day of May, 1994 amounts to denial of the appellant’s right to fair hearing. –
(ii) If the answer to the first issue is in the affirmative, can the ruling of the Court of Appeal dated the 27th day of July, 1994 which failed to consider the appellant’s counter-affidavit sworn to on the 14th day of June, 1994 stand?
(iii) Even if the appellant’s right to fair hearing were not breached, is the 5th respondent a necessary party to this action having regard to the circumstances of this case?
‘Having regard, however, to the decision appealed against and the grounds of appeal, I think the two questions formulated in the Brief of the 1st-4th respondents are adequate enough for the determination of this appeal. The two questions are:
“(a) Was the failure of the Court of Appeal to consider the appellant’s 2 paragraph Counter-affidavit dated 14th June, 1994 in its ruling of 27th July, 1994 amount to a denial of the appellant’s right to fair hearing?
(b) Having regards to the circumstances of the appellant’s suit (enforcement of his fundamental human rights) against the 1st – 4th respondents, is the 5th respondent a necessary party to be joined as co-respondent by the Court of Appeal?
These two questions are identical to the two issues. set out in the 5th respondent’s Brief.
The appellant complained that he was not given fair hearing by the court below in the consideration of his case opposing the 5th respondent’s application to be joined as a co-respondent in the appeal before that court. The ground of this complaint is that the court below made use of a counter-affidavit other than the one he relied on in presenting his case. He contends therefore that his case was not considered by that court before reaching its decision to grant 5th respondent’s application. This is what he calls lack. of fair hearing.
Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 provides:
“33-(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” What is the meaning of the expression “fair hearing” as used in this section? The answer to this question can be found in the quoted dictum of the Rt. Hon. Sir Ademola, CJN in Alhaji Isiyaku Mohammed v. Kano Native Authority (1968) 1 All NLR 424, 426 wherein he opined:
“The true test of a fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case. We feel obliged to agree with this.”
Fair hearing is one of the twin pillars of the rule of natural justice and is usually expressed in the Latin maxim – audi alteram partem. Lord Fraser had this to say In re Hamilton; In re Forrest (1981) AC 1038, 1045 B-D:
“One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings…”
The concept of fair hearing includes the right to be heard.
Turning now to the case on hand, it is not the appellant’s case that he was not heard nor given the opportunity of presenting his case before the court below pronounced on the 5th respondent’s application to be joined as a respondent in the appeal before that court. He, therefore, cannot complain that he was not given a fair hearing. His complaint relates only to an error in the ruling of the court below. That court, as it is very evident on the record, considered evidence not before it for the purpose of the application, in coming to its decision. That fault on the part of the court below cannot amount to a denial of the appellant’s constitutional right to fair hearing. At best, it may affect the correctness of the court’s verdict. Consequently I answer Question (a) in the negative.
Though, strictly, the lower court’s wrong use of appellant’s counter-affidavit of 4/5/94 is not relevant to the determination of question (a), I shall nonetheless comment on it. The 5th respondent filed a motion before the court below on 24/3/94 praying to be joined as a co-respondent in the appellant’s appeal before that court. Reacting to the affidavit in support of the motion the appellant swore to a counter-affidavit on 4/5/94 the penultimate paragraphs of which read:
“2. That after the judgment of the Lokoja High Court, dated 28th day of January, 1993, against which I lodged an appeal, I instructed my lawyers to file a motion for interlocutory injunction as well as stay of the effect on the judgment of the High Court pending the outcome of my appeal to this court. A copy of the said action is herewith attached and marked Exhibit P1.
Before that motion was taken, the 5th respondent fled yet another motion on 17/ 5/94 praying for precisely the same orders as in the previous motion. The motion was supported by an affidavit to which the appellant again reacted by swearing to a counter-affidavit on 14/6/94. This counter-affidavit reads:
(a) Contrary to the facts deposed to in paragraph 2(e) of the said affidavit my action in the lower court is all about my – fundamental rights to my personal liberty and fair hearing and damages for wrongful detention.
(b) The applicant took no part in the action although he was aware of it at the time.
(c) I know as a fact that the applicant is not a necessary party to the action and that the decision appealed in from the case is not in any way adverse to his interest.
(d) In fact the decision in the case was given on 28/1/93. 1 filed my notice of appeal dated 29/1/93 on 1/2/93 while applicant’s appointment was not until 3/2/93.
(e) I know for a fact that the applicant is not a person having an interest in the action which concerns only my funda-mental rights. He is not aggrieved by the decision as his interest has not been prejudicially affected in any way. Furthermore, he has no genuine grievance against the decision and is not appealing against same.
(f) Contrary to paragraph 2(e) of the applicant’s said affidavit, applicant is not a person directly affected by this appeal. I am advised by my Solicitors and I verily believe that the only persons directly affected by this appeal are the respondents and persons having interest in the appeal and applicant is not such a person.
(g) The appeal is for the determination of the questions
(i) Whether my detention is justifiable
(ii) Whether in the determination of my civil rights and obligations as the Ejeh of Ankpa, I was given a fair hearing.
(iii) Whether in the circumstances of this case the sum of N100,000 is not so low as to make it an erroneous estimate of what I would be entitled to had my claim been allowed.
None of these questions affects the civil rights and obligations of the applicant.
(h) The applicant is not complaining about the decision appealed from. He is not conducting any appeal against the decision.
(i) I honestly believe that the interest now being canvassed by the applicant in this appeal is only speculative and conjectural.
(j) In the premises I respectfully submit that the applicant is not entitled to be joined as he is a busy body, and a meddlesome interloper.”
On the two motions coming up for hearing on 16/6/94 learned leading counsel for the 5th respondent sought leave of court to withdraw the first motion. Leave having been granted that motion was struck out. Learned counsel for all the parties addressed the court on the second motion and ruling was reserved.
In his ruling delivered on 27/7/95 (with which the other Justices that sat agreed) Mahamud Mohmmed J.C.A. quoted from the appellant’s counter-affidavit of 4/5/94 (which had gone with the first motion that was struck out) rather than that of 14/6/94. After reviewing the submissions of learned counsel for the parties, the learned Justice of Appeal observed:
“I think it is not at all in dispute between the parties to this application that the proceedings giving rise to the appeal which the applicant is now applying to be joined as a respondent were concluded on 28th January 1993 with the judgment of the lower court dismissing the claims of the appellant as the plaintiff. It is also not in dispute that part of the decision of the lower court is on the removal of the appellant as the Ejeh of Ankpa. It is also plain from paragraph 3(a) and Exhibit’A’ of the affidavit in support of the application, paragraph 8 and Exhibit PI of the appellant/ respondent’s counter-affidavit and paragraph 3(b) and Exhibit’A’ of the counter-affidavit of Deborah A. Audit filed on behalf of 2nd to 5th respondents that the applicant was duly appointed to occupy the stool of the Ejeh of Ankpa on 3rd February 1993 after the appellant had unsuccessfully challenged his deposition at the lower court.”
After setting out the 5th respondent’s letter of appointment as the Ejeh of Ankpa, the learned Justice continued:
“Therefore having regard to these undisputed facts, the only issue for determination in this application is whether having regard to the entire circumstances of this case and in particular to the fact that the applicant was appointed the Ejeh of Ankpa after the conclusion of the proceedings at the lower court and the filing of the appeal against that decision, the applicant qualifies as a person claiming to be affected by the appeal to justify joining him as a co-respondent.”
He considered this issue in extenso and concluded that the application ought to succeed. He granted the orders sought.
Did the learned Justice come to- a wrong conclusion because of his wrong-use of the appellant’s counter-affidavit of 4/5/94? 1 rather think not. The appellant’s two counter affidavits are substantially the same:’ Paragraph 8 of the counter-affidavit of 4/5/94 says substantially the same thing as paragraph 2(d) of the counter-affidavit of 14/6/94. All the facts relevant to the determination of the application before the court below are not put in dispute by either counter-affidavit. In the circumstance, I must conclude, and I do so conclude; that the wrong use of the counter-affidavit of 4/5/94 has not occasioned any miscarriage of justice. The conclusion of the court below would still have been the same if its mind had been directed to the relevant counter-affidavit of 14/6/94 rather than that of 4/5/94.
Appellant contends that the 5th respondent is not a necessary party and defines “necessary party” as one who, unless joined in the action, the action cannot be completely and effectively determined. He cites Iyimoga & Ors. v. Governor of Plateau State & Ors. (1994) 8 NWLR (Pt. 360) 73,95 where the Court of Appeal held that –
“Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.”
It is also contended that as the appellant has no case against the 5th respondent, there cannot be any issue between them. It is further contended that the action can be completely and effectively determined without the 5th respondent. A number of authorites some of which will be considered later in this judgment, are cited in appellant’s Brief.
The 1st-4th respondents associate themselves with the submissions made on behalf of the appellant. They contend that “the 5th respondent cannot in anyway be considered to be a necessary patty because this matter (essentially enforcement of the appellant’s fundamental human rights against the 1st-4th respondents) can be effectively settled without necessarily allowing the joinder of the 5th respondent against whom the appellant has no claim.” The 5th respondent too has neither any claims against the appellant nor any relevant evidence to give in the matter, nor an intention to appeal against the decision of the trial court.” It is further contended that Order 3 rule 6(J) of the Court of Appeal Rules under which the court below exercised its power to join the 5th respondent cannot supercede section 222(a) of the 1979 Constitution.
The main thrust of 5th respondent’s submission is that having regard to appellant’s reliefs (iii); (v) and (vi) his 1st; 4th, 5th, 8th and 14th grounds of appeal and the relief sought on appeal; the 5th respondent is a person to be affected in the appeal, he having been appointed the Ejeh of Ankpa to which office appellant seeks to be restored.
The following facts are not in dispute
He brought his application pursuant of Order 3, Rule 6(1) of the Court of Appeal Rules which provides:
“6(1) The Registrar of the court below shall after the notice of appeal has been filed, cause robe served a true copy thereof upon each of the parties mentioned in the notice of appeal. It shall not be necessary to serve any party not directly affected.
Provided the court may, of its own motion or on the application of any person claiming to be affected, direct notice to be served on all or any parties’ to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and make such order as might have been made if the persons served with such notice had been originally parties to the appeal. “
What is the scope of this ode? Arid does the 5th respondent come within it? A number of authorities have been sited by the parties in their respective briefs of arguments; these authorities touch mostly on joinder of parties in the High Court where the rules, are in pari materia with former Order 16 rule 11, Rules of the Supreme Court of England). Order 16, rule 11 RSC under which Amon v. Raphael Tuck & Sons Lid. (1956) 1 All ELR. 273; (1956) 1 QB 367, was decided provided:
“…….. The court or a Judge may ……. order that the names of any parties ….. whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved, in the cause or matter be added …..”
Interpreting this rule, Devlin J. (as he then was) held that the test whether under the rule the court had jurisdiction to add as defendant a parson whom the plaintiff did not wish to sue (as in the appeal on hand); was whether the order for, which the plaintiff was asking in the action might directly affect the intervener, dun is, the person seeking or proposed to be added as a party (the 5th respondent in this appeal) by curtailing the enjoyment of his legal rights. It was further held that the only reason which might render the presence of a party before the court to be “necessary” to enable the court to adjudicate completely within the meaning of the rule, was that he should be bound by the result of the proceedings. The learned Judge put the test to be applied in these words at page 281C of the Report:
“May the order for which the plaintiff is asking directly affect that intervener in the enjoyment of his legal rights?
Later in his judgment the learned Judge observed at pages 286 H-I-287 A-B thus:
“It is the words of the rule that now govern the matter, whatever the object for which: it was: made, and it is true that the words ‘all the questions involved in the cause or matter’ are very wide. They are so wide that no one suggests that they can be read without some limitation. The limitation is not something that is left to be settled by the court in its discretion. It is there in the earlier words of the rule. The person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is no, of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing patties may no advance than adequately. That would mean that on the construction of a clause in a common form contract many parties would claim to be heard; and, if there were power to admit any, there is no principle of discretion by which some could be admitted and others refused. The court might often think it convenient or desirable that some of such persons should be heard so that the court could be sure that it had found the complete answer, but no one would suggest that it is necessary to hear them for that purpose. The only reason which make it necessary to make a persona 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 effectually and completely settled unless he is a party.”
Devlin, J cited, with approval, the dictum of Wynn-Parry, 3 in Dollfus Mieg et Compagnie S.A. v. Bank of England (1950) 2 AI! E.R. 605,611 wherein the latter said:
“It seems to me that the true test lies not so much in an analysis of what are the constituents of the applicant’s rights, but rather in what would be the result on the subject-matter of the action if those rights could be established.”
Amon and other English authorities were considered by this Court in Uku v. Okumagba (1974) 1 All NLR (Pt. 1) 475 and Peenok Investments Ltd. v. Hotel – Presidential Ltd.; (1982) 12 SC. 1, among others. It seems fairly settled that a proposing intervener must have a direct or legal interest in order to take advantage of the rule; it is not enough that he has an indirect interest – See: Ikonne v. C.O.P. & Anor. (1986) 4 NWLR (Pt. 36) 473. A person is legally interested if the answer to the question in issue may curtail his legal rights. “That will not be the case unless an order may be made in the action which will operate on something in which he is legally interested – per Devlin J in AMON’s case (supra) at page 287D.
Coming. now to the caw on hand, there can be no doubt that, on the facts, the 5th respondent is not a necessary party to the appellant’s proceedings since each of the reliefs sought by him can. be adequately determined without the 5th respondent being made a party. The 5th respondent’s presence is no necessary for the effectual and complete determination of those reliefs. To this extent I agree with the plaintiff. This, notwithstanding, I consider it desirable, having regard to the reliefs (iii) and (v) sought by the appellant that the 5th respondent be joined so that he should be bound by the decision of the court.
This, however, is not the end of the matter. The 5th respondent, in his application for joinder made in the court below, came under Order 3 rule 6(1) of the Court of Appeal Rules which I have earlier set out in this judgment.
There is an obvious difference between this rule and the rules of the High Court providing for joinder. Under the Court of Appeal Rules, all a proposing intervener need show is that he is a person “claiming to be affected.” There can be no doubt that plaintiff’s reliefs (iii) and (v), if granted; would affect the legal rights of the 5th respondent as the incumbent Ejeh of Ankpa. For that reason, therefore, I am of the considered view that the court below is right to grant his application to be joined as a co-respondent. The proviso to Order 3 rule 6(1) is clear and unambiguous and, in my respectful view, covers the 5th Respondent.
I have read the decision of the Court of Appeal (Jos Division) to which our attention has been drawn. In Iyimoga & Ors. v. Governor of Plateau State & Ors (supra), the plaintiffs had sought by their actions to restrain the Governor from instituting a Judicial Commission of Inquiry into the vacant stool of Andorra of Doma or from accepting or implementing the recommendations of the said Judicial Commission of Inquiry. They lost and appealed to the Court of Appeal. After the said judgment, Alhaji Yahaya Ari Doma was appointed by the Governor to fill the vacancy. In consequence, the plaintiffs applied to the Court of Appeal to join the said Alhaji Ari Doma as a respondent in their appeal. It was contended for the plaintiffs that Alhaji Ari Doma was a necessary party and that his interest would affected by the appeal. The defendants and the proposed intervener opposed the application contending that (1) Alhaji Ari Donna was not a person whose interest would be affected; (2) none of the claims of the plaintiffs was against his rights and (c) he had been appointed to the Office and was carrying out the functions attached to that office. The Court of Appeal held, dismissing the application.
“This court has no original but appellate jurisdiction. Section 6(6) of the 1979 Constitution of Nigeria does not confer original jurisdiction on the Court of Appeal. With the greatest respect, the court will not make any unwarranted orders against a person who was not a party in the suit before the trial court. It is correct to say, that a judgment or order made against a person who was not a party to the pending suit will not be allowed. to stand: See Sun Insurance Offices Ltd. v. Victoria Ojemuyiwa (1965) NMLR 451 ……”
The beginning and end of the matter is, the court has jurisdiction to join a person whose presence is necessary for the court to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose”
Per Orah, J.C.A. at pages 103 and 108 of the Report Orah, J.C.A. in his leading judgment (with which the other Justices agreed) had at page 92 of the Report, observed:
“At this stage, the issue for determination which I have raised in this application becomes pertinent. I now proceed to consider the said issue as already herein-above earlier on stated.
On whether the Court of Appeal has power to entertain an application to join as co-respondent, a person who was not a party in the proceedings at the trial court;
It is my view, that the Court of Appeal has inherent power under section 6(6) (a) of the 1979 Constitution to entertain an application to join a person as a party to an appeal who had not taken part in the proceedings at the lower court subject to certain conditions. Joinder of parties is not a matter of course.
A person sought to be joined must be:-
A person having an interest in the subject of the appeal. In Re: Yinka Folawiyo & Sons. Limited Sango makinde Akanni & Ors v. Chief (Dr.) A.O. Odeleye (1991) 7 NWLR (Pt. 202) 237 at pp. 237, 238, and 240 (C.A.)”
While I agree with the court below that the Court of Appeal has power to join as a party in the appeal one who had not been a party in the proceedings at the trial, that power is not derived from section 6(6) (a) nor section 222(a) of the 1979 Constitution but from Order 3 rule 6(l) of the Court of Appeal Rules and section 16 of the Court of Appeal Act.
It is observed that the learned Justices of Appeal did not, for once, refer to the rule of their court empowering them to order joinder. Section 222(a) of the 1979 Constitution to which reference was made by them is, of course, irrelevant in the circumstance. For that section only confers right of appeal, with leave of court, on any person having an interest in the matter of the appeal. The 5th respondent, in the present case, was not seeking to appeal.
The Court based its judgment also on the High Court rule which is in pari materia with Order 16, rule 11 RSC considered in Amon’s case. As 1 have shown above, the High Court rule is not altogether, on all fours, with the Court of Appeal Rules, Order 3 rule 6(1). With profound respect, I must hold that lyimoga & Ors v. Governor of Plateau State & Ors. was wrongly decided.
The conclusion I reach is that the 5th respondent is not a necessary party to the proceedings initiated by the appellant for the enforcement of his fundamental rights since the reliefs he claim can be adequately determined without the 5th respondent being made a party. Having regard, however, to the undisputed facts in this case, it is desirable just and convenient that he be made a party so that he should be bound by the decision of the Court in respect of appellant’s reliefs (iii) and (v). Moreover the 5th respondent is a person whose legal interest will be affected by the appeal. The Court. below rightly, therefore, exercised its power under Order 3 rule 6(1) in his favour.
For the foregoing reasons and the other reasons given in the judgment of my learned brother Belgore, J.S.C, a preview of which I had here now, I dismiss this appeal with N1000,00 costs to the 5th respondent only.
OGWUEGBU, J.S.C.: I had a preview of the judgment just delivered by my learned brother Belgore, J.S.C. I am of the same opinion that the appeal should be dismissed.
The 5th respondent filed a motion on notice in the court below for an order granting him leave “to be joined in this appeal as a Co-Respondent, being an interested person and a person to be directly affected by this Honorable Court’s decision.” This application was filed on 243:94. The appellant filed a counter-affidavit in opposition to the application on 4:5:94.
This application was withdrawn by the 5th respondent perhaps on a second thought on 16:6:94 and it was accordingly struck out. He filed afresh application on 17:5:94 for leave “to be joined as a Co-respondent in the appeal being a person directly affected in the appeal, having regard to the subject matter of the appeal from the decision of the lower court dated 28th January, 1993.”
The appellant filed another counter-affidavit on 14:6:94 in opposition to this fresh application.
The court below heard arguments on this motion and delivered its ruling on 27:7:94. In its ruling the court below granted the prayer sought. It made use of the counter-affidavit of the appellant filed on 4:5:94 in opposition to the earlier application which was withdrawn and struck out instead of the counter-affidavit he filed on 14:6:94 in opposition to the second application.
The question now is whether the use made by the court below of the earlier counter-affidavit of the appellant amounted to a denial of the appellant’s right to fair hearing.
It is necessary to find out the extent and scope of the right to fair hearing enshrined in section 33(1) of the 1979 Constitution in the context of this case. Section 33(1) of the 1979 Constitution provides:
“33(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
A fair hearing must of course be a hearing that does not contravene the principles of natural justice. The provisions of section 33(1) of the Constitution are the equivalent of the common law rules of natural justice and the essential elements of those rules include:
memo debet esse judex in propria causa and audi alteram partem.
In this case, it cannot be said that the appellant was denied the right to fair hearing provided in section 33(1) of the Constitution. He was represented by counsel of his choice who argued the application for joinder.
What has happened in this case is that the court below referred to the affidavit-evidence which was not before it in its ruling on the application for joinder brought by the 5th respondent. The said affidavit-evidence of the appellant in opposition to the earlier application went with the said application which was struck out. The court below was in error to have referred to the said counter-affidavit in its ruling. This error is not the same thing as a denial of the right to fair hearing being canvassed by the learned appellant’s counsel.
Did this error affect the decision arrived at by that court? If yes, then there is a failure of justice. I have carefully considered the ruling appealed against. lam satisfied that the wrongful reference to the counter-affidavit by the Court of Appeal did not affect the decision arrived at by that court Even if the latter counter-affidavit was used, it would not have affected the decision arrived at by the court below. See section 227 of the Evidence Act Cap, 12, Laws of the Federation of Nigeria, 1990. I am satisfied that the error committed by the court below is not of such a character that has the effect of rendering the trial a nullity. It has also not occasioned any miscarriage of justice. See Devi v. Roy (1946) A.C. 508, Odunsi v. Bamgbala & Ors. (1995)1 NWLR (Pt. 374)641 and Udeze v. Chidehe (1990) 1 NWLR (Pt. 125) 141.
The objection to the application to join the 5th respondent as a Co-respondent in the appeal as a person affected by the appeal is misconceived. Even though the appellant is not claiming any relief against the 5th respondent in the substantive suit, the result of the appeal in the said suit will finitely affect him. His application to be joined under Order 3, rule 6(l) of the Court of Appeal Rules was per.
Rule 6(1) of Order 3 provides:
“6(1) The Registrar of the court below shall after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal. It shall not. be necessary to serve any person not directly affected.
Provided that the Court may, or of its own motion, or on the application of any person claiming to be affected, direct notice to be served on all or any parties to the action or other proceedings or upon any person not a party…….”
The 5th respondent is a beneficiary of the subject matter of the suit, the stool of Ejeh of Ankpa and which ever way the appeal in the substantive suit goes, it will affect his interest. He is therefore a proper person to be served with the notice of appeal and the court below was right to join him as a co-respondent. It was a proper exercise of the court’s discretion.
I see no merit in this appeal and I accordingly dismiss it. I make the same order as to costs contained in the judgment of my learned brother, Belgore, J.S.C.