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[BASED ON POLICY, PRACTICE AND PUBLISHING LAW REPORT, 3PLR, PROTOCOLS]
(1987) NWLR (Pt. 61) 481
KAYODE ESO, J.S.C. (Presided)
ANTHONY NNAMEZIE ANIAGOLU, J.S.C.
AUGUSTINE NNAMANI, J.S.C.
MUHAMMADU LAWAL UWAIS, J.S.C.
CHUKWUDIFU AKUNNE OPUTA, J.S.C. (Delivered the leading judgment)
Chief F. R. A. Williams, SAN (Mrs. A. Williams with him) – for the appellant
Nwanodi ESQ., – for the respondent
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
EQUITY – Doctrine of standing by – person who stood by and allowed others to fight his battle for him – whether bound by decision affecting his interest.
EQUITY – Party seeking to profit by his own wrong – whether a court should allow it.
INJUNCTION – Propriety of granting an injunction when the substantive right had not been established.
JUDGMENT AND ORDER – Injunction – propriety of granting an injunction when the substantive right had not been established.
JUDGMENT AND ORDER – Plaintiff failing to prove his case – proper order for the court to make.
JUDICIAL PRECEDENT – Principles of law formulated in a case – need to construe in with reference to the facts of the case – whether principles can be applied to subsequent cases with different facts.
LOCUS STANDI – Successful challenge of locus standi of plaintiff – effect on jurisdiction of court.
PRACTICE AND PROCEDURE – Joinder of parties – desirability and necessity of making a person a party – distinction beween.
PRACTICE AND PROCEDURE – Joinder of parties – duty of trial court to join all persons as parties suo motu either as plaintiff or defendant at any stage of the proceedings under order IV rule 5(1) of the High Court Rules Cap 61, Laws of Eastern Nigeria 1963.
PRACTICE AND PROCEDURE – Joinder of parties – failure to join a desirable defendant – effect on locus standi of a plaintiff and jurisdiction of court.
PRACTICE AND PROCEDURE – Order 15 rule 6(1) 1979 R.S.C. (England) – guide to the construction and application of same.
PRACTICE AND PROCEDURE – Parties – “proper parties” – “desirable parties” – “necessary parties” – distinction between.
PRACTICE AND PROCEDURE – Parties – right of plaintiff to sue a particular defendant.
PRACTICE AND PROCEDURE – Parties who constitute parties in a legal proceedings
RULES OF COURT – Order 15 Rule 6(1) of the 1979 R.S.C. (England) – guide to the construction and application of same.
WORDS AND PHRASES – “Proper parties”, – “desirable parties” – “necessary parties” – distinction between.
WORDS AND PHRASES – Parties – who constitutes parties in legal proceedings.
OPUTA, J.S.C. (Delivering the leading judgment):
The main issue and in fact the only issue in this appeal is the appropriate order to make in a case where there was a failure to join as a party to a pending suit, a person “who claims to have an interest in the subject-matter of the suit or who may be affected by the result”. Having said this, I will quickly add that the appeal to this court is from the judgment of the Court of Appeal. This court has no jurisdiction to hear an appeal from the judgment of the High Court. Was the Court of Appeal therefore wrong in holding that the trial court should, on its own findings of facts, have dismissed the plaintiff/appellant’s case or should the Court of Appeal have ordered that the case be struck out for reason of non-joinder of parties?
The issue of joinder, non-joinder and misjoinder of parties has agitated and has been agitated in the courts from time to time, and there is no paucity of principles or dicta in this branch of the law. The only difficulty that may arise is the application of those principles and dicta to the facts and circumstances of any particular case. I will in this judgment review some of the existing authorities and I will try to show that there is, or that there ought to be, a difference in the treatment of the issue of joinder or non-joinder in the following instances viz:
(i) Where a party to an existing and pending suit applies to join another person or other persons as parties.
(ii) Where an intervener applies to join an existing suit.
(iii) Where the court itself suo motu joins parties.
(iv) Where there has been a total failure either by the parties or an intervener or the court to join. In other words, what will be the legal effect of non-joinder of parties?
It is the principle emerging from the cases illustrating the attitude of the courts to the four categories of cases listed above that I will use in the determination of the question posed by the facts and circumstances of the case now on appeal.
Rules made under order IV of the High Court Rules cap. 61 of 1963 Laws of Eastern Nigeria applicable to this case deals with parties, joint ground of suit; representative actions, contribution in cases of joint and several demands, non-joinder, mis-joinder of parties and mis-joinder of suits.
The claims of the plaintiff/appellant in the trial court were as follows:
(1) The plaintiff is entitled to the Chieftaincy stool of Jeky Green house of Bonny, where-upon he was installed on 24th June, 1978, and on 16th December 1978, the said installation was re-affirmed and endorsed by the entire members of the said Jeky Green house.
(2) The defendant who is Chief and Head of Dublin Green house of Bonny aforesaid disturbed and injured the plaintiff in the use and enjoyment of the said stool by wrongfully imposing another claimant to the said stool upon the said house.
(3) The defendant still continues wrongfully to impose the said claimant and to subvert the said Jeky Green house and threatens and intends unless restrained by this honourable court to continue the said wrongful act.
(4) N500.00 general damages for loss of use and enjoyment of the said stool.
(5) Injunction to restrain the defendant from continuing the said wrongful act.” (Italics supplied)
From the above writ the plaintiff’s complaint is against the defendant and him alone. The plaintiff’s cause of action, the crux of the controversy is clearly stated in claim No. 2 above – as the disturbance of and injury to the plaintiff’s use and enjoyment of the Jeky House stool. How did the defendant disturb and injure the plaintiffs alleged right? The answer is “by wrongfully imposing another claimant to the said stool upon the said house”. It is necessary to do this simple analysis from the onset, in order to keep in view the main dispute, the central issue in controversy, and then the parties to that dispute.
This analysis is also necessary to help distinguish (in this case) between “proper parties” or “desirable parties” on the one hand and “necessary parties” on the other hand. It is also important here, to note that it is only if the plaintiff establishes his alleged right that the issue of disturbance of or injury to that right will arise for consideration. Being a Chief of Jeky Green sub-house (from the pleadings) is not the natural right of the plaintiff. It is rather a right conferred on him by the acts of the main house and the sub house.
After due hearing on relevant evidence – oral and documentary the learned trial Judge Wai-Ogosu, J found at p. 145 of the record of proceedings:-
“Since however the evidence as to the plaintiff having been nominated as a Chief-elect of the Sub-house according to Bonny Custom and Tradition is not very satisfactory, I cannot declare him as having been duly elected” (Italic supplied)
Having so found, the only logical thing for the trial court to have done was to dismiss the plaintiff’s claim wholly predicated as it was on his nomination by the Dublin Green Main house and on his subsequent election by the Jeky Green Sub House as the Chief-elect to the stool of Jeky Green house. Paragraphs 6 and 7 of the plaintiff’s statement of claim pleaded the two requirements of nomination and election as follows:
“6. In or about December, 1976, the defendant at a meeting of the members of Dublin Green house at Green’s Iwoma, Bonny, invited a nominee for the vacant stool of Jeky Green house.
These two paragraphs pleaded nomination and election as two separate exercises. These two paragraphs constituted the backbone, the foundation of the plaintiff’s entire case. Remove them, and the plaintiff’s case will collapse. The court will surely not strike out a case that has completely collapsed. It will dismiss it, I shall come to this later in this judgment when I consider what order the trial court should have made.
In spite of his finding of fact that the plaintiff had not proved that he was nominated as a Chief – elect of the Sub house of Jeky Green, the learned trial Judge still granted “the injunction sought against the defendant” and as if that was not enough he, in addition, ordered “that recognition of Solomon M. D. Green by the Bonny council be withdrawn by the council”. He further ordered “the council to hold a proper enquiry and thereafter order a fresh election the result of which should be remitted
to this court”. This is not Bonny Custom as pleaded by the parties and as testified to by witnesses. Under Bonny custom, as pleaded and proved, the Chief of the main Dublin Green house and the members of the Jeky Green sub-house have separate responsibilities in the nomination, election and presentation of a Chief-elect of the sub-house It is correct and it is conceded on both sides that Jeky Green Sub-house was a creation of the Main Dublin Green house. The creator” has the right to impose terms and conditions on his “creature”. The Bonny Council of Chiefs has nothing whatsoever to do with the nomination and/or election of a Chief-elect to the Jeky Green Sub House. Ordering, “the council to hold a proper enquiry and thereafter order a fresh election” is at best an order that flies in the face of Bonny custom as pleaded and proved and at worst a travesty of that custom. Also an order for an injunction cannot be made in vacuo. The aim of an order of injunction is usually to protect an established legal right. If the substantive right had not been established, as in this case, it will be, and it was, very wrong of the learned trial Judge to “grant the injunction sought against the defendant”. Accessorium non ducit sed sequitur suum principale (the accessory right does not lead, but follows its principal). The principal right to the Jeky Green stool has to be proved first, before the accessory right of injunction can be imposed to protect that principal right. A legal right to the Jeky Green Sub house stool can, from the pleadings and evidence, only be acquired by successful nomination, election and presentation. These processes were not proved in this case as the trial court found as a fact. Courts do not protect mere “chances to the stool”. No, they protect rights in and over the stool.
The defendant understandably aggrieved by this strange judgment appealed to the Court of Appeal Enugu Division. That Court (of Appeal) by a unanimous verdict allowed the defendant’s appeal and set aside the judgment and orders of Wai Ogosu, J. of the Port Harcourt Judicial Division of the Rivers State High Court holding:- (See p. 369 of the record).
“There was nothing in the statement of claim praying that recognition of Solomon M.D. Green be withdrawn by Bonny Chiefs council. Neither was there one that an inquiry or fresh election be ordered by the trial court. The respondent went to court to claim he was the person entitled to the stool of Jeky Green house of Bonny … The court held that his evidence as to this appointment was not satisfactory and therefore would not declare respondent as having been duly elected. With this finding by the learned trial Judge; the crux of the matter is that the plaintiff/respondent had not made out his case and it ought to have been dismissed.”
Here the Court of Appeal clearly indicated that the proper order the trial court would have made in the peculiar circumstances of this case was one of dismissal. So far so good for the facts and circumstance of this
case as it journeyed up to the Court of Appeal. Now the plaintiff has appealed to this court not against the judgment of Wai Ogosu, J. not against the entire judgment of the court below but only on one subsidiary issue namely:-
“Whether the Court of Appeal ought to have ordered that the action be struck out for want of necessary parties.”
The short answer to the above question is that it will be contradictory for the court below which at p. 369 of the record of proceedings observed and held that:
“the plaintiff/respondent has not made out his case and it ought to have been dismissed.”
to turn round and strike out the very same case which “ought to have been dismissed”.
I shall however consider the law as it relates to parties and then apply the principles involved to the facts and circumstances of this case now on appeal. Having not appealed against the entire judgment of the court below the appellant is therefore bound by the concurrent findings of the High Court and the Court of Appeal that the plaintiff/appellant had not proved his case namely that he was nominated and elected Chief of Jeky Green house. The question for determination will really be – if a plaintiff failed to prove his case before the trial court what order would that court make? The obvious answer is – an order for dismissal. I agree that in some exceptional circumstances the trial court can enter a non-suit. Is this case one of those cases where the proper order should have been a non-suit or an order striking out the suit?
Chief Williams SAN. for the appellant argued in his brief and in his oral submissions to us that:
“In the particular circumstances of this case want of necessary parties had the consequence of depriving the court of jurisdiction to adjudicate…. In the absence of Jeky Green house of Bonny, Solomon M.D. Green and the Bonny Council of Chiefs the court of trial lacked jurisdiction to adjudicate on the claims made by the plaintiff in this action”.
Chief Williams, SAN. relied on our decision in Oloriode v. Oyebi (1984) 1 SCNLR. 390. Mr. Nwanodi’s contention in his brief and oral submission was that:
“…having regard to the manner in which the reliefs claimed by the appellant were formulated in the High Court it was not necessary for any other party to be joined in the action for a fair and just determination thereof.”
Mr. Nwanodi then relied on Ekpere & Ors. v. Aforije & Ors. (1972) 1 All. N.L.R. p. 220 and on Oloriode & Or v. Oyebi & Mrs. (1984) 1 S.C.N.L.R. 390. I shall now consider what really was decided in these two cases and see if the principles of those decisions (not the dicta) apply to the facts and circumstances of the case now on appeal. In Ekpere’s case supra a subordinate community sued for a declaration that the land in dispute was not part of Jesse clan property but that of the plaintiff exclusively. The Jesse clan itself was not made a party. This court then held that the individual interests of separate communities which together form a clan are not necessarily the interests of the clan as such; and that where the representatives of one such community sue for a declaration that the clan as such has no interest in the land in dispute, the action is not properly constituted unless the clan itself other than the plaintiff/community is made a defendant. This is so because a part is not equal to a whole and where the interest of the whole conflicts with the interest of the part, the whole should be allowed as defendant to defend its interest against the claims of the part. Chief Williams’ submission, in that case, that the plaintiff’s action was improperly constituted without the Jesse clan being made a party was upheld by this court. When it came to what will be the appropriate order to make, this court expressed some anxiety. At p.229 this court observed – “We have however anxiously considered what should be the order of this court”. The point I am making here is that even where this court or any appellate court finds that not all parties were before the court so many orders – namely striking out, dismissal, non-suit, retrial -are available to that appellate court. It is only the surrounding circumstances of each individual case – including the way the claims were formulated; whether those persons not joined were merely “proper parties” or “desirable parties” or “necessary parties”; the effect of the proposed order on the overall justice of the case etc. that will dictate the appropriate order to be made.
I shall now deal with parties generally and specifically with “proper parties”, “desirable parties”, and “necessary parties”. In legal proceedings the parties, generally speaking, are the persons whose names appear on the record as plaintiffs or defendants. Again a plaintiff who conceives that he has a cause of action against a particular defendant is entitled to pursue his remedy against that defendant only and should not be compelled to proceed against other persons whom he has no desire and no intention to sue. Me Cheane v. Gyles (No.2) (1902) 1 Ch. D. 911 at p. 917: see also Dollfus Mieq et Compagnie S.A. v. Bank of England (1950) 2 All. E R, 605: at p 608 per Wynn-Parry, J. But when the suit has been filed the trial Judge becomes dominus litis and then assumes, under order IV rule 5(1) of the High Court Rules cap 61 of the Laws of Eastern Nigeria 1963 still operative in the Rivers State, the duty and responsibility to ensure that the proceedings accord with the justice of the case by joining either as plaintiff or defendants “all the persons who may be entitled to, or who claim some share or interest in the subject-matter of the suit, or who may be likely to be affected by the results” if these had not already been made parties. This joinder by the court suo motu can be done at any state of the proceedings. Thus in Ezenwa v. Mazeli & 5 Ors. (1955) 15 WACA. 67 at p. 69 the West African Court of Appeal affirmed and upheld a joinder of parties made by the trial Judge after final addresses pending final judgment. The trial court could easily have joined under order IV rule 5(1) above Solomon M.D. Green, Jeky Green house and Bonny Council of Chiefs if it wanted. But it did not join them. In the case now on appeal the contention of Chief Williams is that the Jeky Green house of Bonny, Solomon M.D. Green and the Bonny Council of Chiefs ought to have been joined. Chief Williams continued:-
“It would seem that the High Court overlooked the point because all the material witnesses testified before it”.
In other words all those who should have been joined testified as witnesses. This is not quite correct as Solomon Green never testified. Under our law one 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. See Amon v. Raphael Tuck & Sons Ltd (1969) 1 Q.B.D. 357 at p. 380 per Devlin J,. Under our law a person whose interest is involved, or is in issue an action and who knowingly chose to stand by and let others fight his battle for him is equally bound by the result in the same way as if he were a party: see In Re Lart (1986) 2 Ch. D. 788; Leeds v. Amherst 16 L.J. Ch. 5; Esiaka v. Obiasogwu 14 W.A.C.A. 178; Abuakwa v. Adanse (1957) 3 All. E. R. 559. Now if Solomon MD Green knew of the plaintiff’s action, as he was in this case bound to know and yet was content to stand-by, he is bound by the result. And what is the result of the plaintiff’s action in this case? It is that the plaintiff failed to prove that he was nominated and elected chief to succeed to the vacant throne of Jeky Green. Solomon M.D. Green will certainly be happy to be bound by such a decision.
Another result of the case now on appeal is the Appeal Court’s decision at p. 369 of the record that not having proved that he was duly elected to succeed the vacant stool of Jeky Green Sub-house, the plaintiff’s action should have been dismissed by the trial court. There is no appeal against this finding of the court below. Putting it in another way, with that finding still subsisting the present appeal is entirely misconceived as it proceeded on the false assumption that the Court of Appeal made no such order. If it made no such specific order it did make a finding to that effect and the judgment of the Court of Appeal should be read as a whole. Again both Chief Dr. E.T. Dublin Green and the appellant, by issue estoppel, are bound by this decision that the plaintiff had not proved his case and that his case be dismissed. How can this court now make an order for striking out a case which the Court of Appeal said should be dismissed unless it is shown that the court below was wrong” And this can only be done by a proper appeal specifically attacking that finding. There is here no such appeal.
This now leads on to the consideration of the difference between
“proper parties”, “desirable parties” and “necessary parties”. Proper parties are those who, though not interested in the plaintiff’s claim, are made parties for some good reasons e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. 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. Amon v. Raphael Tuck & Sons (1956) 1 W. B. 357: Settlement Corporation v. Hoshschild (No.2) (1959) 1 W.L.R. 1664: Re Vandervills (1971) A C. 812: Re Vandervelle Trust (1969) 3 All E R. 496.
A distinction must be drawn between the desirability of making a person a party and the necessity of making him one. In Settlement Corporation supra it was held that joining a person as a party to proceedings did not arise merely because the relief sought in the cause or matter might affect someone who was not a party in respect of his rights at common law or in equity. In Peenok v. Hotel Presidential (1993) 4 NCLR. 122 this court per Idigbe, JSC. and Obaseki, JSC, drew the necessary distinction between what it is desirable to do and what it is necessary to do and came to the conclusion that although it was desirable to join the Rivers State Government whose Edicts Nos. 15 and 17 were under attack, it was not necessary to join them before the court could decide on the claims of the parties before it. Eso, J.S.C. with the greatest respect, stated the law broadly “to join all parties who claim interest in this case or who are likely to be affected by the result of the case before the court. It was their Edicts that were being declared void and they were entitled to a fair hearing”. But the important thing to note about Peenok’s case supra is that notwithstanding the non-joinder of the Rivers State Governments this court did not strike out the plaintiff’s claims nor did it order a non-suit. It dealt with the claims as they relate to the parties actually before the court. This is in support of the proposition that in every case of mis-joinder or non-joinder the court, after commenting on the issue of joinder, should deal with the matter in controversy as far as it relates to the rights and interest of the parties actually before it.
Let me now consider the instances:
Byrne & Anor v. Brown Diplock, Third Party (1889) 22 O.B.D.
657 pp. 666-669. This case dealt with the right of a defendant on record applying to add another defendant or other defendants. Upon the expiration of the lease the plaintiffs brought an action against Stanley Brown to recover damages for breach of covenant to repair. Brown thereupon applied for and obtained from the master an order joining Diplock as a third party. The master also directed that the question of indemnity as between Diplock and the defendant should be referred to the official referee. On application by the defendant the official referee made an order adding the executors of the will of Margaret Elizabeth Brown as defendants in the action for the purpose of determining the question of indemnity. Neither the plaintiffs nor the defendants opposed that order but Diplock did and appealed to the Court of Appeal. The Court of Appeal held that on the facts and surrounding circumstances of this case the official referee was right in exercising discretion under order XVI rule 11 in adding the executors as defendants.
I will here like to emphasise that the judgments, of Lord Esher M.R and Bowen, J. in this case must have to be related to the facts and circumstances of the case. One such fact being that there was an application by the defendant on record to add further parties – to add other persons, as defendants. Bearing in mind the facts and circumstances of the case, I will now refer to the pronouncements by Lord Esher, M. R. and Bowen, L.J. At page 66 Lord Esher, M. R. observed and rightly too: –
“One of the chief objects of the Judicature Acts was to secure that; whenever a court can see in the transaction brought before it that the rights of one of the parties will or may be so affected, that under the form of law other actions may be brought in respect of that transaction, the court shall have power to bring all the parties before it and determine the rights of all in one proceeding. It is not necessary that the evidence in the issue raised by the new parties being brought in should be exactly the same; it is sufficient if the main evidence and the main inquiry will be the same, and the court then has power to bring in the new parties, and to adjudicate in one proceeding upon the rights of all the parties before it… the transaction here is in respect of a lease and of a claim for dilapidations under it. The lease has been in various hands, contracts have been made with regard to it, and it is obvious that there are various persons whose rights and liabilities will be, or may be affected by the determination of the claim for dilapidations. The plaintiffs are the original lessors, one of the defendants is an assignee of the term. The proposed new defendants are the executors of the will of the original lessee. It seems to me obvious that the rights and liabilities of all those parties may be affected by what has been done with respect to the lease and the dilapidations”.
In other words the three sets of defendants namely Brown, Diplock and the executors of the Will of Margaret Elizabeth Brown are the parties to account for the dilapidations and effect necessary repairs to the premises demised. The plaintiffs therefore have a cause of action against all the three sets of defendants. Inter se the defendants may claim contribution against one another. These related questions can be settled in one action.
The rules permit the court to join (the court shall have power) in such cases. But what is most important here is that there was an application by one of the parties on record for joinder of more defendants. In the case now on appeal there was no such application. Order IV rule 4 of High Court Rules of Eastern Nigeria makes provision for such joinder of another defendant against whom a defendant on record “claims contribution, indemnity, or other remedy or relief”. In the case now on appeal Chief Abusi David Green did not sue Solomon M. D. Green and the defendant, Chief Dr. E.T. Dubin Green has not claimed and is not claiming any contribution or indemnity against Solomon MD. Green. He has not even applied to join him (Solomon Green) at all for any other purpose. It is therefore my view that the ratio decidendi and obiter dicta in Byrne & Anor. v. Brown supra and other case of that class will not apply to the case now on appeal.
The case of Amon v. Raphael Tuck & Sons Ltd. (1956) 1 Q. B. D. 357 is an important land mark on joinder of parties. Even then there was, unlike Abusi’s case now on appeal, an application by the defendants on record to add a further defendant. There was also a discussion of what constitutes a person a “necessary” party to an action and the true construction of R.S.C. Order 16 rule 11 in particular the meaning of the words:-
“whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter”.
Devlin, J. in this famous case considered and analysed many of the various cases decided before, on joinder of parties under order 16 rule 11 and observed at page 371 of the report:
“It is not, on this view, enough that the plaintiff’s rights and the rights which the intervener wishes to assert should be connected with the same subject-matter.”
and at p. 380 Devlin, J. continued:-
“…the person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is not, 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 questions involved and has thought of some relevant arguments to advance … That would mean that on the consideration of a clause in a common law form contract which many parties would claim to be heard…. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled There must be a question in the action which cannot be effectually and completely settled unless he is a party” (Italics supplied).
Note: The Court of Appeal Western State (Kester, Oyemade and Eso, JJ.C.A.) in Lajumoke v. Doherty (1969) NMLR. 281 at p. 287 quoted and applied the above dictum of Devlin, J.
Now let me apply Devlin, J’s test to the facts of this case now on appeal. It is not enough to make Solomon M.D. Green a necessary party to show “the plaintiffs”, Abusi Green’s rights and the rights of Solomon M. D. Green “are connected with the same subject-matter” that is to say the Jeky Green Sub-house stool. But what is the significant difference between this case on appeal and Amon v. Raphael Tuck & Sons Ltd supra? It is that Solomon Green never applied to intervene. Therefore the ratio and dicta in Amon v. Raphael Tuck & Sons supra dealing with the question whether or not an intervener should be regarded as a necessary part will not apply to one who did not apply to intervene. Also whether Abusi Green was nominated and elected can be settled without Solomon Green.
I have considered in Byrne v. Brown supra the position where a party to the action applies to join a further defendant or defendants. Gurtner v. Circuit (1968) 2 Q. B.D. 587 is a good example of an application to join made by someone who was not a party to the original suit. This was an action by a third party against an assured motor-cyclist. The bureau applied to be added as defendants. The bureau had an agreement with the Minister to satisfy unsatisfied judgment debts. In that case the whereabout of the assured motorcyclist was unknown and the name of his insurers was also unknown. The question was – whether the bureau was “a person whose presence before the court may be necessary to ensure…. that all matters in dispute are effectually and completely adjudicated upon”. It was in that case held that –
“where the determination of an action between two parties would directly affect a third person’s legal rights or his pecuniary interest, the courts had a discretion, under R.S.C order 15 rule 6(2) to order the third person to be added as a party … so that all matters in dispute could be effectually and completely determined and adjudicated upon.”
On the authorities of all the cases reviewed thus, far there is no doubt that Chief Abusi Green or Chief Dr. E.T. Dublin Green or Solomon M.D. Green himself could have applied to join the said Solomon M.D. Green as a party to this action. No such application was ever made. This leads me to the next question:
What happens when no such application for joinder is made either by the parties themselves or by an intervener? The answer seems to be order IV rule 5(1) of the High Court Rules of Eastern Nigeria cap. 61 of 1963 applicable to this case and which stipulates:
“5(1). If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may … direct that such persons shall be made either plaintiffs or defendants in the suit as the case may be…. and whether he shall have appeared or not, he shall be bound by all the proceedings in the case.”
The learned trial Judge was well within the law, if, he, having found that Solomon M.D. Green was a person who is also claiming the Jeky Green stool, adjourned the case and suo motu joined Solomon M.D. Green as a defendant under order IV rule 5(1) above as the trial court did in Ezenwa v. Mazeli & 5 ors (1955) 15 W.A.C.A. 67 at p. 69. The learned trial Judge, Wai-Ogosu, J., with respect, was thus in serious error when he failed to avail himself of, and exercise the jurisdiction to add parties which he definitely had under order IV rule 5(l) above.
Now to the final and most relevant question – What happens where parties who should have been joined under order IV rule 5(l) above were not joined, and the case proceeded to judgment with the parties on record as the only parties? In other words what is the legal effect of non-joinder of parties? Under, R.S.C. (England, 1979) order 15 rule 6:
“1. No cause or matter shall be defeated by reason of the mis-joinder or non-joinder of any party; and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”
In other words where there has been a non-joinder either by failure of the parties or an intervener to apply for such joinder or failure of the court to join suo motu; this non-joinder will not be taken as a ground for defeating the action. The above rule is thus designed to save rather than destroy, to cure rather than to kill the action or suit. Failure to join a party will thus under this order (RSC order 15 rule 6) not be fatal to the proceeding and the court may determine the issues or questions so far as those issues or questions relate to and affect the rights and interests of the parties actually before the court – in this case Chief Abusi Green and Chief E. T. Dublin Green.
This court in Uku & Ors. v. Okumagba & Ors. (1974) 1 All. N. L. R. 475 at p. 495 considered, approved and adopted the construction put on the English order 16 rule 11 (which is the same as the present order 15 rule 6 RSC. 1979) and which is also in pari materia with order V11 rules 9-11 of the, High Court of the Mid-Western State (now Bendel State) and held at p. 495:
“It seems to us quite plain that without the respondent “being joined as a co-defendant, the present suit is not liable to be defeated as it is possible for the court to adjudicate upon the cause or matter without the presence of the respondent… ”
I will say exactly the same about the case now on appeal. The court can easily decide whether the plaintiff is “entitled to the Chieftaincy Stool of Jeky Green house of Bonny” without the joinder or intervention of Solomon M.D. Green. In fact the trial court decided that question at p. 145 of the record when it found that:
“Since however the evidence as to the plaintiff having been nominated as a Chief-elect of the sub-house according to Bonny Custom and Tradition is not satisfactory, I cannot declare him as having been duly elected.”
This repetition of the court’s finding and decision has been made to emphasise the point that joinder of Solomon M.D. Green as defendant is now a non-issue. The trial court appears to have acted under order 15 rule 6-1 of the 1979 R.S.C. Rules above.
Also Wilmer, J. in Miquel Sanchez & Compania S. L. v. Owners of Result (Nello Simoni Ltd. Third Party) – usually cited in short as “The Result” (1958) Probate 174; (1958) 1 All. E. R. 839 at p. 179 of the Probate Report and pp. 841/842 of the All England Reports gave a useful guide to the construction and application of R. S. C. order 16 rule 11 (order 15 rule 6-1 of the 1979 R.S.C.) as follows:
The court should ask itself the following questions:-
Asking the above questions in this case my answers will be:-
The plaintiff/appellant’s main and radical claim is for a declaration of title to the Jeky Green Chieftaincy stool. The Privy Council in lbeneweke v. Egbuna (1964) 1 W.L.R. 219; Olisa Chukura’s Council judgments 941 held that there had never been any unqualified rule of practice that forbade the making of a declaration even when some of the persons interested in the subject-matter of the declaration were not before the court. In this case the trial court could go on and did go on without Solomon M. D. Green. He was not therefore a necessary party.
The consensus of judicial opinions in the cases I cited above would seem to be that though Solomon M.D. Green (no doubt a rival Chief to the plaintiff) is a desirable party to be joined in these proceedings but he was not a necessary party. He was a desirable party because he too has an eye to the Jeky house chieftaincy but his presence as a party will not be necessary to enable the court decide the main issue in this case which is whether or not the plaintiff, Chief Abusi David Green, was (as he pleaded in his paragraphs 6 and 7 of his statement of claim) nominated and unanimously elected to the vacant stool of Jeky Green Sub-house by members of the entire Dublin Green Main House including Jeky Green Sub-house. It is this nomination and election that will confer on the plaintiff firstly, the right to the declaration he claims and secondly, a right not to have his right to the stool of Jeky Green Sub House disturbed and thirdly, a right to have this “accrued right” protected by an injunction. Solomon M. D Green need not be a party to enable the court decide all the above issues. I am therefore inclined to agree with Mr. Nwanodi that Solomon M D. Green, though a desirable party, was not a necessary party in this case.
Since both the appellant and the respondent in their briefs cited and relied on the court’s decision and pronouncements on Oloriode’s case supra, I will now examine that decision to find out what it really decided. The facts of that case were as follows:
“There were two consolidated actions in the High Court of Lagos State. In each the claim was for a declaration of title, possession, trespass and injunction. The plaintiffs in the first action instituted their action on behalf of the Agbenaje Family but their statement of claim showed that the land which they had claimed was never vested in them (i.e. in the Agbenaje Family) but in another family altogether, known as the Ladega Oyero Family which itself included the descendants of Agbenaje and descendants of Osu Kehinde Family which was not a party. The second action was instituted on behalf of the Ogadubu Family. Here as in the first action the pleadings of the plaintiffs showed that the land they claimed for the family was never vested in that family – the Ogadubu Family but in the Ajai Odofin Family a completely different family made up of the descendants of Ajanaku (one of whom was Ogadubu) and the descendants of Onsegun. It was thus clear that the parties who sued in each of the consolidated actions did not represent the whole of the land owing families.
On the above facts this court held that:
“The plaintiffs in each of the consolidated actions had no locus standi to institute the action because all the parties necessary for the invocation of the judicial powers of the court were not before it and consequently, the court has no jurisdiction to grant the reliefs in the claims in both suits”.
Those were the facts and that was the decision of this court on those facts. Now it cannot for a moment be suggested that the facts in the case now on appeal are similar to those in Oloriode v. Oyebi supra. In this case the locus standi of Chief Abusi David Green was never in issue; Solomon M.D. Green is not as it were the whole of which Abusi David Green formed but a part; each (Abusi David Green and Solomon M.D. Green) can make any claims to the Jeky House Stool; and each in his own equal and independent capacity as an integral whole. It will not necessarily need the presence of one for the other to prove that he was nominated and duly elected a Chief of Jeky Green Sub-house by Bonny Custom and Tradition. It is beyond doubt that if a plaintiff’s locus standi to bring his action before the court is successfully challenged the court would in turn, have no jurisdiction to adjudicate. If a plaintiff is incompetent to bring the action, the court, as well, will not be competent to hear an incompetent plaintiff for then his action would not have been brought “upon fulfilment of a condition precedent to the exercise of the court’s jurisdiction” Madukolu v. Nkemdilim (1962) 1 All. N.L.R. 587 at p. 595. A proper plaintiff should be one who has a right of action, the person who had been wronged. In Ekpere’s case supra the right of action resided in the Jesse clan not in the subordinate community. In Oloriode’s consolidated cases the right of action resided in the bigger family groups. The Ladega Oyero Family and the Ajai Odofin Family. Any judgment or order affecting their right cannot be given or made in their absence.
I am afraid it will be over-stretching the point to suggest that where a plaintiff has the necessary capacity and locus standi to bring his action, and then brings it, that the failure to join a desirable defendant will deprive him of his initial locus standi and then rob the court of jurisdiction to entertain his action. That cannot be. Chief Williams drew our attention to the dicta of Irikefe J.S.C. (as he then was) in Oloriode’s case supra at p. 400 and to that of Eso, J.S.C. at p. 407 and Uwais, J.S.C. at p. 409. All these state that where the court has no jurisdiction to adjudicate upon a matter, like the parties before the court having no locus standi the proper order is to strike out the action. Uwais, J.S.C. at p. 409 went a bit further to observe:-
“From the foregoing it is clear that not all the parties interested in the land in dispute were joined in each of the consolidated actions. To dismiss or grant the claims made would amount to giving judgment against the branches of the families that were not joined in the action. This will undoubtedly cause hardship to the families of Osu Kehinde and Onsegun who have not had the opportunity of contesting the claims. I accordingly agree that the proper order to have been made by the trial court was to strike out both claims instead of dismissing the appellant’s case and entering judgment in part for the respondents.”
I have on purpose quoted at length the comments and order made by my bother Uwais, J.S.C. and his reasons for making the order of striking out. In the peculiar circumstances of Oloriode’s case supra where the real land owing families were not before the court, justice will dictate that the proper order will be striking out not dismissal.
But it does not then follow that in every case where a party was not joined the action will be struck out rather than dismissed. Peenok’s case supra is a good example. This then means that all the dicta in Oloriode’s case supra to which Chief Williams referred us ought to be read in the light of the peculiar facts and circumstances of that particular case and should not be extended to other cases with different set of facts. These dicta should not be elevated to the status of principles of law binding on all other cases irrespective of their own special and peculiar facts. There is always that temptation for judges to decide questions of fact in language which appears to lay down rules of law: Morris v. Luton Corporation (1964) K. B. D. 114 as per Lord Greene, M.R. The court should therefore resist the temptation but where the dicta had been too widely stated, the court should decline the invitation to treat questions of fact decided in a particular case by importing into them as principles of law, a course of reasoning to be applied in deciding other cases on other set of facts: Tidy v. Battman (1934) 1 K. B. 319 at p. 322 (per Lord Wright). The fact is that no one case is exactly like another and argumentum a simili valet in lege (Co. Litt 191) – it is when the cases are alike that the argument has a legal force. The facts of Oloriode’s case supra are by no means similar to the facts of the case now on appeal. Therefore the order of striking out made in that case need not be made in this case.
The final point I will like to make is that it was the plaintiff/appellant who brought this action. He ignited the jurisdiction of the court. Why did he not sue all the parties -(Jeky Green house of Bonny, Solomon M.D. Green and the Bonny Council of Chiefs) – that his learned counsel now claims should have been joined? One of the answers is that a plaintiff is perfectly free and at liberty to sue whom he conceives had injured him and whom therefore he has a cause of action against. He is at liberty to frame his case the way he likes. The plaintiffs grudge was against Chief Dr. ET. Dublin Green. Why should plaintiff not sue him alone. The difficulty in this case is not that Solomon M.D. Green was not added as a party. No, it is not. The plaintiff’s difficulty is that he did not prove that he was as he pleaded nominated and “unanimously elected” to succeed to the vacant stool of Jeky Green Sub House. Joining Solomon Green would not have helped the plaintiff to prove that. When a plaintiff has not proved his case, that case should normally be dismissed as the Court of Appeal held at p.369 of the record lines 30-33. Striking out the case will have the effect of giving the plaintiff/appellant a second bite at the cake thus rewarding him for his incompetence and/or failure in not suing all parties to the dispute, This, the court should stoutly resist
In King v. Hoare 13 M & W. 494 Baron Parke observed about cases that had gone up to judgment without the proposed joinder of parties:
“…the cause of action is changed into a matter of record, which is of a higher nature, and the inferior remedy is merged in the higher’’; and that the judgment bars it, “because it is thereby reduced to a certainty, and the object of the suit attained so far as it can be at that stage, and it would be useless and vexatious to subject the defendant to another suit for the purpose of attaining the same result”.
Here it will be useless, and vexatious to strike out the action in order to enable the plaintiff/appellant to drag the successful defendant back to court. Also in The Duke of Bucclench 1992 Probate 201 Lord Esher, MR. dealt with joinder of parties under order XVI rules 2, 11, 12 and the finality of judgment and held at p. 212:-
“It has been argued that the rules do not apply after final judgment. They apply, in my opinion, as long as anything remains to be done in the case. In this case there remains the assessment of damages”.
Because of this the court joined other persons necessary to settle the issue of damages. In this case the striking out order to enable Solomon M.D. Green to be joined will not settle any outstanding issue in Abusi Green’s case which had completely collapsed.
The trial court, with the greatest respect, made unwarranted orders against persons who were not parties before it. If that judgment was the judgment now appealed against, this court will definitely, in the interest of justice, order a retrial or a non-suit. That was really the rationale of the judgments in Ekpere supra and Oloriode supra respectively. But the Court of Appeal upset and over-ruled the judgment of the Port Harcourt High Court in this case. The judgment now appealed against is that of the Court of Appeal. That judgment has not decided anything against Solomon M.D. Green in his absence to justify this court ordering a non-suit or a retrial to afford the said Solomon, M.D. Green the opportunity of being, heard. It is correct that a judgment or order made against a person who was not a party to the pending suit should not be allowed to stand. The judgment of the Court of Appeal now appealed against is no such a judgment. Sun Insurance Office Ltd v. Victoria Ojemuyiwa (1965) N. M. L. R. 451 refers.
In the final result and for all the reasons given above, this appeal fails and the observation of the Court of Appeal that the case be dismissed is upheld. It is hereby ordered that the plaintiff/appellant’s appeal be and is hereby dismissed. For the avoidance of any further doubt the plaintiff original claims before the Port Harcourt High Court are hereby dismissed in their entirety. There will be costs to the respondent which I assess at N300.00.
ESO, J.S.C.: I have had the privilege of a preview of the judgment which has just been delivered by my learned brother Oputa J. S.C. I regret I am unable to agree with his reasoning and conclusion which he has so forcefully put. I respectfully dissent.
This is a very important appeal especially as it has raised an age-long issue of joinder of parties. But, to appreciate the short point that has arisen in this court, it would be necessary to examine critically, the issues before the trial court, the manner in which those issues were dealt with, the understanding by the court of the issues placed before it, and what it believed it was dealing with, the issues before the Court of Appeal and the application of law by the learned Justices of that court to those issues, and the real issues in controversy which have been brought before this court.
The claim of the plaintiff, Chief Abusi David Green, who is the appellant in this court, and who would be, hereafter referred to severally as Abusi or appellant, as the case may be, is as follows –
“1. The plaintiff is entitled to the chieftaincy stool of Jeky Green house of Bonny, Bonny Local Government Area, whereupon he was installed on 24th June, 1978, and on l6th December 1978, the said installation was, reaffirmed and endorsed by the entire members of the said Jeky Green house.
Some paragraphs of the statement of claim are material to the present issue. They are-
“1. The plaintiff is the Chief-elect to the stool of Jeky Green house of Bonny, having succeeded the last incumbent, the late Chief Elis T. Furo Jeky Green, who died in June, 1974.
11 In a resolution dated 25th March, 1978, members of the said Dublin Green house appointed the plaintiff to the said vacant stool and further announced the date of his installation in the Nigerian Tide of April 3, 1978. The said Nigerian Tide will be founded at the trial.
“20. It was the judgment of the Bonny Council of Chiefs that the appointment of an incumbent to the stool of the said Jeky house rested with the elders of Jeky Green house and not with the defendant in his capacity as the head and paramount chief of the main house; his role in this matter under Bonny tradition being that of presenting the Chief-elect to the Bonny Council of Chiefs for recognition. This the defendant failed to do. Instead, the defendant insists on presenting his illegal appointee to the said council and intends not to present the plaintiff unless ordered by this honourable court.
(1) That the plaintiff is entitled to the Chieftaincy Stool of Jeky Green house of Bonny, whereupon he was installed on 24th June, 1978, and on 16th December 1978, the said installation was reaffirmed and endorsed by the entire members of the said Jeky Green house.
(2) That the defendant be ordered to present the plaintiff to the Bonny Council of Chiefs for recognition.
(3) That the defendant intends to continue to impose a wrongful claimants one Solomon M.D. Green, on the said stool of Jeky Green house unless restrained by this honourable court.
(4) N500.00 general damages for loss of use and enjoyment of the said stool.
(5) Injunction to restrain the defendant from continuing the said wrongful act. Dated at Port Harcourt this 5th day of June, 1979.”
So, from the beginning, it has been plain that the quarrel must involve Abusi, (the plaintiff) Chief (Dr.) Ernest T. Dublin Green [hereinafter referred to as Dublin or respondent as the case may be,] Solomon Green (the party Dublin insists on installing) and hereinafter referred to as Solomon, and the Jeky Green house. All these have featured very prominently in the statement of claim.
The statement of defence states that the responsibility of electing anybody to the vacant stool of Jeky Green house is not the responsibility of Dublin Green house, nor the youths of that house but that of Jeky Green Sub-house and it was with the advice of this house that he, Dublin, appointed Solomon. If one, after reading the pleadings re-examines the writ and the claim as contained in the final paragraph of the statement of claim, it would be obvious that persons who may be likely to be affected by the result of the action include at the least, Abusi, Solomon and Dublin or to use the words of Devlin J. in the famous case of Amon v. Raphael Tuck & Sons Ltd. (1956) 1 QB 375 the parties usually joined in an action are
(a) persons who may be entitled to or who claim some share or interest in the subject matter or
(b) who are likely to be affected by the result.
In Mc Cheane v. Gyles (No. 2) (1902)1 Ch. 911 Buckley J. said on the rules for joinder of parties-
“Looking at the rule, you must, in order to say that a person who is not a party ought to be added, find either that he “ought to have been joined” or that his “presence before the court may be necessary in order to enable the court effectively and completely to adjudicate upon and settle all the questions involved in the cause or matter”.
Now what are:-
“all the questions.”
“The complaint of the plaintiff is that the headship or chieftaincy of Jeky Green house, established sometime in the 2nd half of the last century by late Chief Oruasi–Dublin Green as a Sub-house to Dublin Green house, has always been accessible to suitable and capable candidates acceptable to the majority of the members of the said sub-house. The late incumbent, Chief Ellis T. Furo Jeky Green, for instance, was not from the Jeky stock, but was acceptable to the majority of the members of that house and was installed chief of the said sub-house. The defendant, who had been installed sometime in 1974 as chief and head of the main Dublin Green house and had subscribed to an oath of office on his installation enjoining him to consult with his executive for advice on all major and important matters of interest to the House, did, sometime in December 1976 at a meeting of the Dublin Green house, held at Green’s Iwoama, invite nominations for the vacant stool of the Jeky Green Sub-House.
In that same December 1976, according to the plaintiff, plaintiff was unanimously elected to the vacant stool………….immediately informed in writing. In a delayed reply dated June 7, 1977, and put in evidence here as exhibit 12 the defendant rejected the plaintiff and further commented on the reasons for his rejection”..…….………………………………………… ………….……………..
“It is the case of the plaintiff that this rejection so angered the youths of Dublin Green house that they re-affirmed and endorsed his selection to the said vacant stool. So when the defendant on or about March 25, 1978” “unilaterally and in a despotic fashion appointed one Solomon Green as the chief-elect and successor to the vacant stool of Jeky Green house” ………………………….………………………………………………………………………………………………………………………………………………………………………..……..
“But owing to the insistence of the defendant on the appointment of the said Solomon Mejerama Dublin Green as a rival chief a complaint was laid before the Bonny Chiefs’ Council by the plaintiff and his supporters. The Bonny Chiefs Council met on the complaint on 9/12/78 and decided that the purported installation of the plaintiff was null and void, because .”The right to choose a Head of Jeky Green rests on the elders and principal members of Jeky Green House who will present the candidate of their choice from among their members to the Head of Dublin Green major house – Chief (Dr.) E. T. Green who will ask for the recognition of the Bonny Council of Chiefs.”
And the learned trial Judge’s understanding of the defendant’s case?
This is how he put it himself-
“The purported installation of the plaintiff was not carried out nor had it the approval of the elders and principal members of the Jeky Green Sub-house as required by Bonny Custom and Tradition: that installation was in fact declared null and void by the Bonny Chiefs’ Council on 9/12/78. He never insisted on the appointment of Solomon Mejerema Dublin Green as chief-elect; rather on 16/12/78 the elders and principal members of Jeky Green unanimously elected Solomon M. D. Green as Chief-elect of Jeky Green Sub-house and requested him to ensure that the installation ceremony of the said chief-elect was performed in accordance with Bonny Custom and Tradition “without delay.”
Defendant denies receiving any letter dated 16/12/78 informing him that the plaintiff had been appointed chief-elect of the Jeky Green Sub-house other than exhibit “9” and “9A” about Solomon Mejerema Dublin Green. Exhibit “9A” is copy of the minutes of the special meeting of the members of the Jeky/Alali family held on 16/12/78 re-electing Mr. Solomon M. Green as Chief-elect for the Jeky Green chieftaincy stool; and exhibit “9A ” is copy of the resolution taken at that meeting sent to the defendant and requesting him to ensure that the installation ceremony of the chief-elect be performed without further delay. Defendant then says that Solomon Mejerema Dublin Green whom he presented to the Bonny Chiefs’ Council as Chief was duly appointed by the elders and principal members of the said Jeky Green sub-house according to Bonny Custom and Tradition;”
‘The learned trial Judge emphasised the importance of Solomon in the case as follows-
“There is this other point which goes to confirm any doubt on the genealogy of Solomon M.D. Green. D. W. 3 was available in the witness box and the defendant did not ask him to substantiate how Solomon is a Jeky Green. All that this DW. 3 said about Solomon M.D. Green is that after Bonny Chiefs’ Council’s meeting of 9/12/78 the members of Jeky Green house met and selected one Solomon Miejenenwerima Jeky Green, “a freeborn of the house,” as the Chief-elect. I am in full agreement with Chief Jamabo’s submission that the evidence of D. W. 1. i.e. the defendant and that of D. W. 3 on Solomon have not gone any useful way in showing how this man is a Jeky Green. This view is strengthened by the fact that the amended statement of defence and the counter-affidavit of the defendant to the motion on interim injunction give two different versions of the genealogy of Amadi, the father of Solomon: In the amended statement of defence Amadi is said to be a slave to Jeky Green whereas in the counter affidavit at paragraph 13 Solomon M. Green is said to be “a member of Jeky Green house and grandson of Chief Jeky Green.” So there is no defendant’s reliable evidence of the genealogy of Solomon worth comparing to the plaintiffs evidence on genealogy which the plaintiff gave about himself.”
As regards the power of Dublin, the learned trial Judge emphasised
“Defendant said in that reply of 7/6/77 that he was “fully conscious of my sacred responsibility in this matter and will not tolerate any interference from any quarters designed to pressurise me in favour of any particular candidate.” When he invited members of his house, and particularly members of Alali and Ikpuru families; to submit nominations for his consideration it was in order to give consideration to as wide a choice as possible. This, to my mind, is pregnant with serious conflict and trouble. It is all the question of multiple or split personality: here the defendant was appearing in two personalities, both as a feudal lord of the old manor system and as a modern democratic chieftain. But the defendant has forgotten that the days of the feudal lord are over and feudalism cannot now mix well with our present democratic system. It appears to me on the whole evidence that the defendant did find it difficult indeed to tear himself away from the strong grip of the feudal person in him throughout the whole of the episode.”
and in so far as the act of Dublin is concerned in the alleged imposition of Solomon, the court held-
“Defendant has denied appointing Solomon Green unilaterally and in a despotic fashion’; it is said that the defendant acted on the advice and recommendation of the members of the Jeky Green’s Sub-house.’ To support these denials defendant in his evidence in chief said ‘Infact I made my position on this clear in exhibit “7”, which is the letter I addressed to them on 30/3/78.’ This letter addressed to the President, Green’s Family Union at Port Harcourt, is very clear in what it says: it says that it was the defendant who, in his ‘capacity as Chief and Head of the Dublin Green House of Bonny and in keeping with the ancient traditions of the House, appointed Mr. Solomon M.D. Green of the Ikpuru family as chief-elect of the sub-house of Jeky Green. Every school boy knows that this is not the same as saying that I did not unilaterally at any time appoint Solomon M.D Green as the Chief of the Jeky Green house. Exhibit 10 written by the defendant about two and a half months before exhibit “7”, makes it abundantly clear that the defendant held, and perhaps still holds, the view that it was his ‘sole prerogative as Chief and Head of the main Dublin Green’s house to appoint a candidate to fill the vacant stool i.e. the vacant stool of Jeky Green’s house.
Going through the mass of evidence in this matter it is difficult to escape the belief that the defendant’s thinking and every action in this whole episode were conditioned throughout by his belief in his sole prerogative to appoint a successor to that stool. Throughout he felt that stool was the creation and personal property of his ancestor Chief John Oruasi Dublin Green. When these two exhibits are read together with exhibit “11”, “9” and “9A “, it is clear to me that Solomon Green was the sole appointee of the defendant;”
The learned trial Judge was more than critical of the action of the defendant/respondent – Dublin and that action was the despotism displayed in imposing Solomon on that family. For, finally, he said –
“But after that decision I find, as I have said already that the acts of the defendant and his supporters were contrary to the council’s decision. I believe and find that with all the smoke-screen, Solomon M.D. Green was/is the appointee of the defendant, (Dublin) and this is against the spirit of the Bonny Chiefs’ Council’s decision and where the defendant went wrong. I find too that the plaintiff has made a case, from the evidence, that his chances to the stool were disturbed by the undue interference of the defendant. (Dublin). I therefore grant the injunction sought against the defendant (Dublin) restraining him from continuing to impose Solomon M. D. Green or any other claimant on that stool.
Since however the evidence as to the plaintiff having been appointed as Chief-Elect of the Sub-house according to Bonny Custom and Tradition is not very satisfactory I cannot declare him as having been duly elected. But I hereby order that the recognition of Solomon M.D. Green by the Bonny Council be withdrawn by that council in addition I order that council to hold a proper inquiry and thereafter order afresh election, the result of which should be remitted to this court.”
There is nothing strange in this order of the learned trial Judge, and indeed having regard to the inter connection of Solomon with the case, it would have been strange if he had not been conscious of the presence of Solomon in the whole episode the plaintiff’s (Abusi’s) case had a good reception with the trial Judge and one would understand his reluctance in not declaring him as having been duly elected in view of the fact that the evidence as to having been “appointed Chief-elect of the sub-house as to having been according to Bonny Custom and Tradition” not being “very satisfactory”. The consequential order that the recognition of Solomon M.D. Green by the Bonny Council be withdrawn by that council” and the further order that the council hold a proper inquiry and thereafter order a fresh election could not be regarded as farfetched in the least. Even at that stage the only regret is – for the complete and effective determination of the case, Solomon was not made a party. Now, Dublin appealed to the Court of Appeal. The main complaint in that court being as follows:-
“But I hereby order that the recognition of Solomon M.D. Green by the Bonny Council be withdrawn by that council; in addition I order that council to hold a proper inquiry and thereafter order a fresh election, the result of which should be remitted to this court.”
PARTICULARS OF ERROR
(i) There was no claim before the court for any relief which could warrant the making of either or both orders.
(ii) The learned trial Judge never called for and did not hear argument from either side before making either or both orders.
(iii) None of the parties affected by the order was either a party to the suit or made a party thereto either in the manner provided by law or at all.
however the evidence as to the plaintiff having been appointed Chief-elect of the sub-house according to Bonny Custom and Tradition is not very satisfactory I cannot declare him as having been duly elected.” erred in law by making an order of injunction and for costs (quare damages) against the plaintiff
(i) The finding of the learned trial Judge deprived the plaintiff of any vested right in maintaining this action so as to entitle him to damages and injunctions.
(ii) The basis on which the plaintiff claimed both reliefs assumed that he had been properly appointed or selected to the stool of the Jeky Green Sub-house but the finding of the learned trial Judge is that he has not been so appointed or selected.”
In his judgment in the Court of Appeal, Salihu Modibbo Alfa Belgore JCA (as he then was) made a very important pronouncement of law. He said-
“When a declaration or judgment may affect persons other than those before the court it is in, the interest of justice and expedient those third parties be made parties to the suit. Generally the court may make such orders but it may be unjust if a person not a party to the suit is made mainly responsible for carrying out the order. Solomon M.D. Green and Bonny Chief Council are the parties not before the court ‘ but the burden of carrying out the orders is on them.
I very respectfully agree with this proposition of law. I think, with respect, it is sound. Though the Court of Appeal held the orders to be in excess of the jurisdiction of the court, the learned Justice of the Court of Appeal said, and I agree with this latter statement
“but suffice to mention here that the court has power to make joinder of parties to be affected or likely to be affected by its judgment under order IV rule 5(l) High Court Rules (cap 61, Laws of Eastern Nigeria 1963). Ibeneweka v. Egbuna (1964), 1 WLR 220, 225.”
Interestingly enough, this was the same rule of court that this court examined in Peenock v. Hotel Presidential (1983) 4 NCLR 122, the principle therein, having been examined in the English case of Amon v. Raphael Tuck Ltd (supra) and Nigeria case of A. Lajumoke v. Mrs. R. Doherty (1969) 1 NMLR (Western State Court of Appeal) I will come to these authorities anon. It is pertinent to state herein the other decisions of the Court of Appeal. Belgore J.C.A. (as he then was) held-
“The other ground of appeal urges this court to hold that the learned Judge having been dissatisfied with the plaintiff/respondent’s evidence as to his election and recognition ought to have dismissed the case and he had no more power to restrain the appellant. This is quite true. The learned Judge unambiguously held the plaintiff/respondent had not satisfied him. It only supports the presumption that the plaintiffs failed to prove his case. By embarking on section 48 and section 57 High Court Law, the learned Judge certainly went beyond what the parties prayed for. Secondly assuming he was within the issues the Bonny Chiefs Council is not a judicial body and has no judicial function as envisaged by section 48 High Court Law. The learned Judge himself held he was acting under section 48 and not section 57 (supra). Assuming he purports to act under section 57 High Court Law he was still granting a relief not asked. ”
To recapitulate, the case that was before the High Court despite the manner of the framing of the writ and pleadings was clearly-
These were the claims upon which evidence was led, and this evidence included the, rival claims of Abusi, Dublin, Solomon and the Jeky Green house. Upon that evidence given by Abusi and his witnesses, on the one hand; Dublin, one Franklin Jacob Green and one Bennet Green on the other hand, (Solomon never gave evidence, though he featured in every aspect of the case as the rival candidate to the stool, and as the person who would be principally affected if the injunction sought by Abusi succeeded, and as the person whose rejection by Dublin brought about the complaint of, and the damum to the plaintiff), the trial court found-
And, as regards this Solomon (the man who is so material to the case) and remedies sought, the learned trial court held “I am in full agreement with Chief Jamabo’s submission that the evidence of D. W. 1 i.e. the defendant and that of DW 3 on Solomon have not gone any useful way in showing how this man is a Jeky Green. This view is strengthened by the fact that the amended statement of defence and the counter-affidavit of the defendant to the motion on interim injunction give two different versions of the genealogy of Amadi, the father of Solomon: In the amended statement of defence Amadi is said to be a slave to Jeky Green whereas in the counter-affidavit at paragraph 13 Solomon M. Green is said to be “a member of Jeky Green house and grandson of Chief Jeky Green.” So there is no defendant’s reliable evidence of the genealogy of Solomon worth comparing to the plaintiffs evidence on genealogy which the plaintiff gave about himself. The learned trial Judge further held-
“Going through the mass of evidence in this matter it is difficult to escape the belief that the defendant’s thinking and every action in this whole episode were conditioned throughout by his belief in his sole prerogative to appoint a successor to that stool. Throughout he felt that stool was the creation and personal property of his ancestor Chief John Oruasi Dublin Green. When these two exhibits are read together with exhibit “11” “9” and “9A “, it is
clear to me that Solomon Green was the sole appointee of the defendant;”
“But after that decision, I find, as I have said already, that the acts of the defendant and his supporters were contrary to the council’s decision. I believe and find that with all the smoke-screen, Solomon M. D. Green was/is the appointee of the defendant, Dublin, and this is against the spirit of the Bonny Chiefs’ council decision and where the defendant went wrong.
He then found and this is of utmost importance, that the plaintiff has made a case that his chances to the stool were disturbed by the undue interference of the defendant”. Be it noted that this undue interference is the production, unlawfully, as the trial court has held, by Dublin, of Solomon to inhibit, the otherwise smooth sailing appointment of Abusi. The learned Judge, granted the injunction sought; surely this must affect Solomon, for if Solomon does not co-operate with the order, it would be a futile order of court. But how best could Solomon on, be made not only to co-operate, but obey, as it should be, the order of the court, than his being made a party to the action and order? If the trial court had dismissed Abusi’s claim, then, the illegally produced Solomon is, inadvertently, being wrongly assisted to the stool by the court! I believe it was for the effective determination of the case that the court made the order that the recognition of Solomon be withdrawn a (but it is to be noted again that Solomon was neither before court as a witness or as a party). It was also in regard thereto that a consequential order that the council should hold a proper inquiry and thereafter order a fresh election was made. With respect, there is nothing extra-ordinary in this consequential order for this was precisely what this court did in Adigun v. A. G. of Oyo State (1987) 3SCNJ 118 when it was faced with a similar awkward situation. As Belgore J.C.A. (as he then was), said in the Court of Appeal, Solomon M.D. Green and Bonny Chiefs Council are the parties, who though were not before the court, yet the burden of carrying out the orders of the court lies on them!
I have gone to this length in regard to what happened in the courts below so as to bring out the nature of the appeal which is now before this court. After the Court of Appeal had found, as I have indicated above, it made the following order-
“This appeal therefore succeeds (that is the appeal of Dublin) and the decision and orders of the trial court of Rivers State sitting at Port Harcourt of 18th December 1980 are set aside.”
There was nothing contained in the order as regards Solomon and the council whom the court made so much fuss about in the body of the judgment. The core of the appeal to this court is as stated in the brief of Chief F. R. A. Williams, S.A.N., leading counsel for Abusi. He said-
“QUESTIONS FOR DETERMINATION
The only question for determination in this appeal may be stated as follows:-
Whether the Court of Appeal ought to have ordered that the action be struck out for want of necessary parties.”
The short argument of learned Senior Advocate goes like this-
“It seems clear that in the absence of Jeky Green house of Bonny, Solomon M.D. Green and the Bonny Council of Chiefs, the court of trial lacked jurisdiction to adjudicate on the claims made by the plaintiff in this action”.
Learned Senior Advocate relied on Oloriode v. Oyebi (1984) 1 SCNLR 390 and urged that the High Court ought, on the findings of the Court of Appeal, to have struck out the claim.
Mr. N. Nwanodi, learned counsel for the respondent, Dublin, put the question for determination thus-
“The only issue for determination in this appeal is whether, having regard to the manner in which the reliefs claimed by the appellant (Abusi) was (sic) formulated in the High Court, it was necessary for any other party to be joined in the action for a fair and just determination thereof-
I have already set out what I believe to be the issues for determination before the High Court. There is no appeal whatsoever against the finding of Belgore J. C. A. as regards the expediency of making as parties, persons whom the declaration or judgment of the court may affect. He named those parties. They are-
Solomon M.D. Green;
Bonny Chief Council;
And he said categorically, that the burden of carrying out the orders is on them. On this declaration alone, against which there is no appeal it is clear to me that the only just order that should have been made by that court was to order the action itself to be struck out for want of necessary parties –
With respect, what a court should look into, is the core of the matter, the real issue which could be drawn from the claim, pleadings and evidence. That is the real case before the court and it is not the-mere surface, presented by sometimes ill-drawn pleadings. I will now proceed to examine the authorities to show that this appeal ought to be allowed and order made as sought by the appellant. What parties must be joined for an effective and complete adjudication and for enabling the court to settle all the questions involved in a matter or cause? This is the question that one must bear in mind when considering joinders of necessary as opposed to desirable parties. Indeed, the Rules of Court in England, see R.S.C. order 16 rule 11 U.K. rules demand this, and the Rule of Court affecting this case, that is order 4 rule 5 of the High Court of Eastern Nigeria Rules does the same. It provides-
“5. (1) If it shall appear to the court at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be. In such case the court shall issue a notice to such persons, which shall be served in the manner provided by the rules for the service of writ of summons or in such other manner as the court thinks fit to direct; and on proof of due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause; provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may, at any time before judgment in the suit, apply to the court for leave to appear, and such leave may be given upon such terms (if any) as the court shall think fit.
(2) The court may, at any stage of the proceedings and on such terms as appear to the court to be just, order that the name or names of any party or parties, whether as plaintiffs or defendants, improperly joined, be struck out.
This rule requires persons who may (not shall) be likely to be affected by the result to be made parties. Who are these persons in the instant appeal? Belgore J.C.A. (as he then was) stated them as I have already reproduced above; the trial court was fully aware of them, again, as I have already stated above. In Peenok v. Hotel Presidential (supra) Idigbe J.S.C. said-
“The court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, order that the names of any parties improperly joined, whether as plaintiffs, or defendants, be struck out, and that the names of any parties whether plaintiffs or defendants who ought to have been joined, or whose presence before the court may
be necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.”
In other words, the court, ex debito justiciae may act suo motu. I am in complete agreement with this dictum of my late learned brother. In that case, Idigbe J.S.C. asked himself a question, following the dictum. He answered by saying that each of the claims before the court could be decided effectually and completely without the need of bringing the Government of Rivers State as a party. If I ask myself the same question as respects this instant case, my answer is, as clearly given by Belgore J.C.A. (as he then was) in the Court of Appeal. The parties that are affected by the order of the court, especially Solomon, are not before the court. I took the view in the Peenok v. Hotel Presidential case (supra) that-
“if only on the principle of fair trial, the State Government should be heard in any action that would determine the validity or not of its Edicts. The maxim audi alteram partem must necessarily apply in this case. The alteram partem here is the Rivers State Government.”
I am still of the same opinion that it would, with utmost respect, be iniquitous to determine a matter against a person without at least an attempt to hear him. If the court is to decide against the blood that flows through the veins of Solomon, surely, again with respect, decency, at least, demands he should be heard. To be heard, he must be a party. He is the alteram partem here and he must be joined for a complete and effectual determination of the case. This too is the theme of the decision of Devlin J. in Amon v. Raphael Tuck 1956 1 QB 357, and the Western State Court of Appeal in A Lajumoke v. Mrs. Remi Doherty (1969) 1 NMLR 281. The sole aim of the court is to seek justice. True, it must be justice according to law, but when parties are available, who are so affected by a claim, pleadings evidence, and a subsequent order would spell detriment, or indeed, incalculable wrong, to what they consider their right, and they have either, technically or inadvertently, been excluded from stating their own side to the story, it is, with respect, waving goodbye to justice! The appeal must succeed and it is hereby allowed. The order of this court is – The claim of the plaintiff in the High Court is struck out.
Appellant shall have costs of this appeal assessed at N300.00. Costs in the Court of Appeal assessed at N200.00.
ANIAGOLU, J.S.C: The judgment just read by my learned. brother Oputa, J.S.C., was made available to me in draft. I am in complete agreement with the opinion he has handed down in the said judgment.
The appellant was the plaintiff in the High Court. From the facts disclosed both in his claim and in his statement of claim, the plaintiff/appellant asserted and claimed, in a nutshell that:
(1) he was entitled to the chieftaincy stool of Jeky Green house of Bonny into which he was installed, having been unanimously elected to it by members of Dublin Green house of which Jeky Green house was a part;
(2) the defendant was disturbing his user and enjoyment of the stool by
(a) refusing, in dereliction of his duty, to present him to the Bonny Council of Chiefs and by
(b) attempting to impose an impostor, one Solomon M.D. Green, upon the said stool of Jeky Green house;
(c) he was entitled to N500.00 damages for loss of user and enjoyment of the said stool; and
(d) the court should restrain the defendant by injunction from continuing his wrongful acts.
His complaint was entirely against the defendant, Chief Dr. E.T. Dublin Green, against whom he took his action in court. The acts against which he was complaining were those of Dr. E. T. Dublin Green, in his acts or omissions. The gravamen of his assertion was that the Jeky Green house Stool was his, by election of the members of the Dublin Green house of which Jeky Green house was part, and that he was installed following the election. The question posed by these assertions were:
(a) was he elected as he asserted?
(b) Was he installed, also as he asserted?
The learned trial Judge answered the two questions in the negative. That should be the end of the plaintiff/appellant’s case.
But the learned trial Judge would not stop at that. With the greatest respect to his Lordship, having completed, in the two findings above, his legitimate adjudicative duties, he should not have assumed the role and mantle of a social welfare officer, requesting the Bonny Chiefs Council to withdraw the Council’s recognition of Solomon M.D. Green which was not claimed by the plaintiff/appellant, and gratuitously (since, again, it was not claimed) ordering that an inquiry or fresh election be held. The learned trial Judge had thus left the arena of law, and the law court, for that of sociology cum anthropology, laced with a judicial advice on the science of village harmony. That, in itself, may well be good, but it certainly was misplaced as it was not part of the claim before the court. The other aspect of this case which I feel bound to comment on, is the nature of the complaint of the appellant before this court. This complaint is set out in the
“only question for determination”
“Whether the Court of Appeal ought to have ordered that the action be struck out for want of necessary parties”.
The plaintiff/appellant is thus complaining that he did not include the necessary parties in his action, and I must add – having regard, not to the nature of his real complaint before the trial court, but to the superfluous ancillary orders made by the trial Judge.”
Be it noted that the appellant was the plaintiff and the wrong done, if any, in the drafting of the claim and the inclusion of parties, was done by him. But neither the Bonny Chiefs Council nor Solomon M.D. Green was complaining. The nebulous complaint was being made by the plaintiff against the plaintiff, that is, by the plaintiff against himself. The real desire of the plaintiff was for him to have a second bite at the cherry having failed to prove the case he brought to court. But the principles of res judicata and those of issue estoppel are dogging the footsteps of this plaintiff/appellant’s desire. It cannot be. The trial Judge had found, as a fact, that he was neither elected to, nor installed on, the Chieftaincy stool of the Jeky house. That being so, the basis for his complaint that the defendant was disturbing his user of the stool was out.
As I have said, the plaintiff wants to take advantage of his own fault. As a matter of general principle of avoiding injustice and absurdity, a court would not allow a person to profit by his own wrong. A person may not create a crisis situation and turn round to plead the crisis in support of his interest. Thus was it said in Kish v. Taylor (1911) 1 K. B. 625 per Fletcher Moultion, L.J. at p. 634 that-
“A man may not take advantage of his wrong. He may not plead in his own interest a self-created necessity.”
In Re Debtor, No. 612 of 1960 (1964) 1 W. L. R. 807 a bankrupt, who, in his expansive modus operandi acquired a dormant company the shares of which the Stock Exchange later suspended, and who sought a certificate that the bankruptcy was caused by “misfortune without any misconduct on his part” under the Bankruptcy Act 1914 s. 26(4), was refused the certificate by the Court of Appeal which held that where a person
“deliberately placed himself in a position of vulnerability to insolvency should [the] shares become unmarketable due to action by the stock exchange…. For a long period than his creditors would tolerate” his loss could not be said to be due to his own “misfortune”.
And so, in the instant case on appeal, the plaintiff knew that the person against whom he was complaining was the defendant and the defendant only; he sued only that defendant and did not join the Bonny Chiefs Council of Solomon M.D. Green; and his main claim was that he was elected to the Chieftaincy stool of Jeky Green house. Having failed to prove that he was so elected to the said stool, he now turned round to claim that he had not joined the necessary parties in his writ and would want to torpedo the finding against him that he had not proved that he was elected chief of Jeky Green house, by requesting a second chance to prove what he failed to prove in the first trial. By requesting that the claim be struck out and not dismissed, a second chance is what precisely he is asking for. That, the law does not allow and I so hold.
Only the above few points have necessitated any further comments beyond what my learned brother Oputa, J.S.C., has admirably put down in his judgment with which, as I had already said, I am in agreement.
Accordingly, I also would dismiss this appeal and hereby dismiss it. The order of the Court of Appeal dismissing the plaintiff/appellant’s claim is hereby upheld. I also would award, and hereby award, N300.00 costs to the respondent.
NNAMANI, J.S.C.: I had the advantage of reading in draft the judgment just read by my learned brother, Oputa, J.S.C. and I agree entirely with his reasoning and conclusion.
It is significant to note that the appellant in this appeal was not contesting the findings of fact by the learned trial Judge which were affirmed by the Court of Appeal. Rather the only point in the appeal was on joinder of parties. The appellant urged this Court to make the order which the Court of Appeal did not make, and to strike out the case on the ground that certain individuals or institutions ought to have been parties in the case. From the earliest times, the consideration has always been whether the entry of the party sought to be joined (or who ought to have been joined) will enable the court effectually and completely adjudicate upon and settle all questions. See Peenok Investment Ltd. v. Hotel Presidential Limited (1982) 12 S.C.1 at 124, A. Lajumoke v. Mrs. R. Doherty (1969) Vol. 1 N. L. R. 281; Chief A. O. Uku & 4 ors etc v. D. E. Okumagba and 3 Ors (1974) 3 S.C. 35; and lately Oloriode v. Oyebi (1984) 1 S.C. N.L.R 390, 400 407.
Were the Bonny Chiefs Council and Solomon D. Green necessary parties for effectual determination of the issues in this suit? To answer that question it is necessary to look at the claim as formulated by the appellant as well as the reliefs claimed. In the High Court the claim as formulated by the appellant was as follows:-
“1. The plaintiff is entitled to the Chieftaincy stool of Jeky Green house of Bonny, Bonny Local Government Area whereupon he was installed on 24th June, 1978, and on 16th December, 1978, the said installation was reaffirmed and endorsed by the entire members of the said Jeky Green house.
Although the appellant in his statement of claim went far beyond his claim and dealt with issues much wider than the suit as formulated would indicate and although the respondent replied to his averments, I am inclined to agree with learned counsel to the respondent, Mr. Nwanodi that the issues joined between the parties still remained very much around plaintiff’s claim that he had been appointed Chief of Jeky Green house, and that the respondent was interfering with his said appointment by imposing somebody else on the house. In his brief of argument Mr. Nwanodi set those issues between the parties as,-
“(i) Was the appellant duly elected and installed as Chief of the Jeky Green house in accordance with the Bonny Customary Law;
(ii) If – but only if – the appellant was so duly elected and installed did the respondent fail in his duty as paramount Chief of the Dublin Green house to present the appellant to the Bonny Council of Chiefs for recognition as the Chief of Jeky Green house; and
(iii) Did the respondent suffer any loss from the alleged failure of the respondent to present the appellant to the Bonny Council of Chiefs”
It is also pertinent to mention that in his statement of claim, the respondent only mentioned Solomon D. Green in paragraph 10 and 15 thereof. Paragraph 10 stated the manner in which he alleged Solomon Green was elected, while paragraph 15 recorded the complaints made against it. It seems to me that the problem in this case lay with the manner in which the leaned trial Judge handled the case. He received evidence over wide-ranging issues not in my view really related to the claim before the court. He even went into such matters as whether the Jeky Green blood ran in the veins of Solomon D. Green, who it seems to me was mentioned all through the suit incidentally.
There was never any direct challenge to his selection or appointment. Not surprisingly, the learned trial Judge ended by making the orders he made. He not only granted an injunction against the respondent herein which was understandable, but proceeded to grant one against Solomon. In his words, “I hereby order that the recognition of Solomon M.D. Green by the Bonny Council be withdrawn by that council.” However, he made one very important finding, as it relates to the appellant’s claim.
He said thus-
“Since however the evidence as to the plaintiff having been appointed as Chief-elect of the sub-house according to Bonny Custom and Tradition is not very satisfactory, I cannot declare him as having been duly elected”.
In the Court of Appeal, the learned Justice of that court expressed dissatisfaction with the manner in which the trial Judge made orders against persons and institution, not before him. At page 3-71 of the record, Belgore J.C. A. (as he then was) observed –
“When a declaration or judgment may affect persons other than those before the court it is in the interest of justice and expedient that those third parties be made parties to the suit. Generally the court may make such orders but it may be unjust if a person not a party to the suit is made mainly responsible for carrying out the order. Solomon M.D. Green and Bonny Chiefs Council are the parties not before the court but the burden of carrying out the order is on them. I have already held the orders as invalid and in excess of the court’s jurisdiction.”
In my opinion, this merely stating the principles of law governing joinder of parties and does not strike me as indicating that the learned Justice thought Solomon D. Green and Bonny Chiefs Council were necessary parties to the suit. For at page 369 of the same record he had said thus,
“The court held that the evidence as to this appointment was not satisfactory and therefore would not declare respondent as having been duly elected. With this finding by the learned trial Judge, the crux of the matter is that the plaintiff/respondent had not made out his case and ought to have been dismissed. The Judge went beyond the issues before the court.”
Belgore, J.C.A. (as he then was) concluded his judgment thus-
“This appeal therefore succeeds and the decision and orders of the trial court of Rivers State sitting at Port Harcourt on
18th December, 1980 are set aside.”
It is contended by Chief Williams, SAN. for the appellant that this court should make the order which the Court of Appeal did not make. That order in his view was one of striking out. From page 369 which I set down above, I am inclined to the view that the order the Court of Appeal would have made was rather one of dismissal. Chief Williams also contended that S.D. Green ought to be before the court before one can say he is wrongly put in. With respect, his going in was never directly; an issue. It was said by the appellant that he was installed, but that the respondent was interfering with his appointment by bringing in someone else.
I am of the view that once it was held, as the learned trial Judge held, that appellant failed to establish that he was elected, his case collapsed, and the defendants interference by imposing Solomon D. Green became irrelevant. I therefore hold that Solomon D. Green. and of course the Bonny Chiefs Council, were not necessary parties in this suit. As it is the appellant who framed and presented his claim in the High Court that is now requesting that the others be made parties, it is difficult to resist the feeling that to grant his prayer may in effect mean giving him a chance for a second bite at the cherry. The appellant’s suit ought to have been dismissed.
It is for these reasons, and the reasons stated quite briefly but lucidly in the judgment of Oputa, J.S.C. that I too dismiss this appeal. I endorse all the orders in the said judgment of Oputa, J.S.C.
UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Oputa, J S.C. I agree that the appeal has failed and that it should be dismissed.
There can be no dispute that a joinder of a third party or parties is required by the rules of procedure where the third party or parties are entitled to or claim some share or interest in the subject-matter of the suit or are likely to be affected by the result of the suit. The duty to apply for the joinder rests with either of the original parties to the suit or the court of trial which can act suo motu. In the present case, learned trial Judge (Wai-Ogusu J.) made the following order against Solomon M.D. Green and Bonny Council of Chiefs even though both were not joined as parties to the suit
“…… I hereby order that the recognition of Solomon M.D. Green by the Bonny Council (of Chiefs) be withdrawn by that council and in addition I order that council to hold a proper inquiry and thereafter order a fresh election the result of which should be remitted to this court.”
If there had been a complaint by Solomon M.D. Green or Bonny Council of Chiefs against the order on the ground that they had not been given the opportunity to be heard before the order was made, I certainly would have ordered a re-trial in order that the parties not joined should have the opportunity of being heard. But that is not the situation before this court. The appellant was the plaintiff in the trial court. He failed to apply for the joinder of the missing parties – Solomon M.D. Green and Bonny Council of Chiefs. By the nature of his claims continued in his statement of claim, viz.
“1. That the plaintiff is entitled to the chieftaincy stool of Jeky Green house of Bonny, whereupon he was installed on 24th June, 1978 and on 16th December 1978, the said installation was reaffirmed and endorsed by the entire members of the said Jeky Green house.
The appellant could have applied to have the Bonny Council of Chiefs and Solomon M.D. Green joined in the suit. But the appellant did not do so. At the trial the appellant failed to prove that he was entitled to the Chieftaincy Stool of Jeky Green house. Ordinarily his claims should have been dismissed by the learned trial Judge but instead the quoted order above was made by the trial Judge. The Court of Appeal (per Belgore, J.C.A. as he then was) criticised the order in the following words –
“when a declaration or judgment may affect persons other than those before the court it is in the interest of justice and expedient those third parties be made parties to the suit. Generally the court may make such orders but it may be unjust if a person not a party to the suit is made mainly responsible for carrying out the order. Solomon M.D. Green and Bonny Chiefs Council are the parties not before the court but the burden of carrying out the orders is on them.”
The Court of Appeal was, rightly, of the view that the trial court should have dismissed the action, but it too failed to make an order dismissing the action. It instead merely allowed the appeal and set-aside the orders made by the trial court.
Now the appellant’s complaint before us is that his action should have been struck-out by the Court of Appeal, since Solomon M.D. Green and Bonny Council of Chiefs were not joined as parties at the trial. It is strange that the appellant should so complain. It is clear that the order made by the trial court, which affected Solomon M. D. Green and the Bonny Council of Chiefs, was wrong. It should never have been made because there was no basis whatsoever for it, since it was not a relief claimed or sought by the appellant against Solomon M. D. Green and the Bonny Council of Chiefs see Ekpenyong & Ors. v. Nyong & Ors.(1975)2 S.C. 71 at p. 80. If the action by the appellant had been dismissed as the trial court and the Court of Appeal should have done, I cannot see the appellant complaining that the action should have been struck-out instead. For where a plaintiff has failed to prove his case the appropriate order to be made by the trial court is to dismiss the action – see Ajiofor v. Onyekwe Ors. (1972) 1 All N.L.R. (Part 2) 527 at p. 536. By asking this court now to strike-out the action on the authority of Oloriode & Ors. v. Oyebi & Ors. (1984) 1 S.C.N.L.R. 390 because Solomon M.D. Green and Bonny Council of Chiefs had not been joined, the appellant is seeking to have a second chance to bring the same action again – a chance that could not have accrued to him had the lower courts dismissed the action – see Ajiofor’s case (supra) at p. 536 where Coker, J.S.C. observed that –
“An order of dismissal operates as an estoppel per rem judicatam and ipso facto, bars the losing party for all times from re-litigating the same subject matter.”
Although this court decided in Oloriode & Ors case that where there is a non-joinder of interested parties the action brought should be struck-out, there is a distinction between the facts in that case and the present case. In the former the right of the missing parties did not arise from a wrongful order of the trial court (as in the present case) but from the fact that the subject-matter of the action was family land and the families concerned were not joined in the consolidated action. The circumstances of that case and the present are not therefore the same. For that reason I am of the view that the correct order to be made by this court is to dismiss the appellant’s action just as the trial court and the Court of Appeal should have done. In the circumstances of this case, to accept the submissions made by Chief Williams, learned counsel for the appellant, is with respect, to uphold the wrongful order made or the wrongful relief granted to the appellant by the trial court.
Accordingly, for these reasons and those contained in the judgment of my learned brother Oputa, J.S.C. I will dismiss the action brought by the appellant and it is hereby dismissed. And for the same reasons, the appeal is dismissed with N300.00 costs to the respondent.
Cases referred to in the judgment:
Abuakwa v Adanse (1957) 3 All E.R. 559.
Adigun v A-G. of Oyo State (1987) 3 SCNJ 118.
Ajiofor v. Onyekwe (1972) 1 All NLR (Pt. 2) 527.
Amon v Raphael Tuck & Sons Ltd. (1956) 1 Q. B. 375.
Byrne v Diplock, Third Party (1889) 22 Q.B.D. 657.
Dollfus Mieq et Compagnie SA v Bank of England (1950) 2 All E.R. 605.
Duke of Bucclench (1892) Probate 201.
Ekpenyong v. Nyong (1975) 2 SC 71.
Ekpere v. Aforije (1972) 1 All NLR (Pt. 1) 220.
Esiaka v. Obiasogwu (1952) 14 WACA 178.
Ezenwa v. Mazeh(1955) 15 WACA 67.
Gurtner v Circuit (1968) 2 Q.B.D. 587.
Ibeneweka v. Egbuna (1964) 1 WLR 220.
In Re Lart (1896) 2 Ch. D. 788.
King v. Hoare 13 M & W 494.
Kish v. Taylor (1911) 1 K.B. 625.
Lajumoke v. Doherty (1969) 1 NMLR 281.
Leeds v Amherst 16 L.J. Ch.D 5.
Madukolu v. Nkemdilim (1962) 1 All NLR 587.
McCheane v Gyles (No. 2) (1902) 1 Ch.D. 911.
Morris v Luton Corporation (1946) K.B.D. 114.
Oloriode v. Oyebi (1984) 1 SCNLR 390
Peenock Investments Ltd. v. Hotel Presidential (1983) 4 NCLR 122.
Re-Debtor, No 612 of 1960 (1964) 1 WLR 807.
Settlement Corporation v Hoshschild (No. 2) (1969) 1 WLR 1664.
Sun Insurance Office Ltd. v. Ojemuyiwa (1965) NMLR 451.
The “Result” 1958 Probate 174 (1958) 1 All E. R. 839.
Tidy v Battman (1934) 1 K.B. 319.
Uku v. Okumagba (1974) 3 SC 35; (1974) 1 All NCR 475 .
Vandervell, Re (1969) 3 All E.R. 496.
Vandervills Trust Re (1971) A.C. 912.
Statutes referred to in the judgment:
Bankruptcy Act 1914 of England: section 26(4)
High Court Eastern Nigeria Law: sections 48, 57
River State Edicts Nos. 15,17
Rules of court referred to in the judgment:
High Court (Civil Procedure) Rules Cap. 61 Laws of Eastern Nigeria 1963, order IV rule 5(1)
High Court (Civil Procedure) Rules: Mid-Western State order 7 Rules 9- 11
Supreme Court Rules of England (RSC) 1979,order 15 rule 6(1).