Chief Moses Edewor V. Property Development Company Nigeria Limited (2003)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
The real issue in this appeal is whether the learned trial Judge was right in declining to join Texaco Overseas (Nig) Petroleum Company Unlimited (TOPCON) as Co-defendant having regard to the circumstances of this case. As the substantive Suit is yet to be tried, I do not think that the second issue is relevant for consideration in view of the fact that this Court can make a consequential order that Texaco Overseas (Nig) Petroleum Company Unlimited be joined as a party if the resolution of the issue raised above favours the joinder.
The Supreme Court has laid down the principles which a Court should follow when it is deciding on the effect of non-joinder of a party to a Suit. Oputa J.S.C. postulated the following questions which a Court should ask itself when considering the issue of joinder of parties namely:-
“1. Is the cause or matter liable to be defeated by the non-joinder?
- Is it possible for the Court to adjudicate on the cause of action set up by the plaintiff unless the third party is added as defendant?
- Is the third party a person who ought to have been joined as a defendant?
- Is the third party a person whose presence before the Court as defendant will be necessary in order to enable the Court effectually and completely adjudicate on and settle all the questions involved in the cause or matter?” See:
GREEEN v GREEN (1987) 3 NWLR (Pt.61) 480 at page 498.
It is necessary at this stage to state the facts that culminated in this appeal. Chief Moses Edewor as Plaintiff instituted an action against property Development Company (Nigeria) Limited before an Effurun High Court in Suit No.EHC/252/97 claiming the following reliefs in the Writ of Summons:-
(i) A declaration that the plaintiff is exclusively entitled to a right of occupancy over all that piece or parcel of land lying and situate in Umah Village, New Port Express Way, Ekpan, within the jurisdiction of this Honourable Court (the exact location and dimension of the said piece or parcel of land shall be more particularly shown in the Survey plan which may be filed with the Statement of Claim.
(ii) The sum of N200,000,000.00 (Two hundred Million Naira) as damage (sic) from the Defendant (sic) trespass into the Plaintiff’s aforesaid land.
(iii) An Order of Perpetual Injunction restraining the Defendant, by itself, its agents, servants and/or privies from further trespassing into the Plaintiff’s aforesaid piece or parcel of land and/or interferring, with or interrupting the Plaintiff’s use and enjoyment of same.”
The Writ was issued on 16/9/97 and on 17/9/97 the Plaintiff brought an ex-parte application for an interim Injunction in terms of the prayer set out in relief No. (iii). The learned trial Judge made the following orders when granting the interim Injunction:-
“(1) The defendant by itself, its agents, servants, workmen and/or privies are hereby restrained from further entering and/or further developing any property in all that parcel of land measuring about 10 (ten) acres lying and situate at Umah Village along New Port Express Way, Ekpan, pending the determination of the motion on notice already filed.
(2) The applicant shall enter into a bond to pay N100,000.00 as security against any damage the defendant may suffer should the applicant abandon this matter or fail at the end for being frivolous”.
The motion on notice was thereafter taken by Omo-Agege CCJ who granted Interlocutory Injunction on 22/5/98. Despite the Interlocutory Injunction which was still operating, the party sought to be joined was seen working on the land. This prompted the Plaintiff to file a Motion Ex-parte praying for-
“1. AN ORDER joining TEXACO OVERSEAS (NIGERIA) PETROLEUM COMPANY UNLIMITED as the 2nd Defendant to this Suit
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