Chief Abusi David Green V. Chief Dr. E. T. Dublin Green (1987)

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OPUTA, J.S.C. 

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 fact, 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 he 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, Misjoinder of parties and misjoinder of Suits.

The claims of the Plaintiff/Appellant in the trial Court were as follows:

Claims-

‘(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.