Chief Ededem Okon Ayito & Anor V. Calabar Municipal Government & Ors (2016)

LawGlobal-Hub Lead Judgment Report

PAUL OBI ELECHI, J.C.A. 

This is an appeal against the Ruling of Justice Adie Attoe-Onyebueke of the Cross River State High Court No. 7 Calabar delivered on the 11th October, 2013 in suit No. HC/324/2012. The Appellant’s not being satisfied by the Ruling of the Learned trial Judge at the Lower Court has now brought this appeal to challenge the said Ruling.

The fact of this case is that the Appellants are members of Etab Ayip Kasuk Multipurpose Cooperative Society. They contributed money and obtained permit from the 1st Respondent to operate an abattoir at Etab Ayip Village. On the basis of the permit, the Appellants erected shades, constructed slaps and commenced operation of the abattoir in 2010. In 2012, the 1st-5th Respondents forcefully entered the abattoir, pulled down the shades, destroyed all the slabs and carted away their meat and other wares from the abattoir. The 1st-5th Respondents carried out their illegal act while the permit issued to them to operate the abattoir was still subsisting.

?On the basis of the above, the Appellants filed the present suit at the Cross River

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State High Court against the 1st-5th Respondents for damages for unlawful demolition of their abattoir. Issues were joined but before hearing commenced, the 6th & 8th Respondents filed an Application to join as Defendants/Counter Claimants so that the Court can determine the owner of the land. At the conclusion of arguments, the Learned trial Judge granted the Application joining the 6th & 8th Respondents/Counter-Claimants to hear Claim on land even when no such claim was before the Court at the time of filing the writ of Summons, and having also failed to comply with the provisions of the Law. It is on that basis that the Appellants have brought this appeal challenging the joinder.

To argue the appeal, the Appellants formulated two issues for determination viz:
(1) Whether it was right for the Learned trial Judge to join the 6th to 8th Respondents in the circumstances of this case;
(2) Whether it was right for the Learned trial Judge to assume jurisdiction to determine the owner of the land when there was no such Claim before the Court.

In arguing issue No. 1 above, Learned Appellant’s counsel submitted that the 6th to 8th

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Respondents failed to disclose what interest they have in the cooperative society which they are not members. They also failed to show how their interest is identical with that of the existing defendants in the suit or how the suit cannot be effectually adjudicated upon without joining them at parties.

What justifies a joinder of a party in a suit is whether the party would be bound by the result of the action. See GREEN v. GREEN (2001) FWLR (Pt. 76) 795, EFFIOM v. IRONBAR (2001) FWLR (Pt. 53) 137.

According to Learned Counsel, the damages to be inflicted in this case can only be borne by the 1st – 5th Respondents and not the 6th to 8th Respondents. Therefore, it’s wrong for the 5th to 8th Respondents to apply to be joined when they have failed to disclose their interest or connection. Even the Application for joinder filed by the 6th to 8th Respondents did not comply with the provisions of Order 15 Rule 17 (1) (2) of the Cross River State High Court (Civil Procedure) Rules 2008 which provides that such Application shall be accompanied by a proposed Counter-Claim, all exhibits to be used and the depositions of witnesses, as required by Law.

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Having not done same by complying with the Law, the 6th-8th Respondents Application was incompetent and shall have been struck out on grounds of jurisdiction. Rules of Court Learned Counsel submitted must be strictly adhered to as they are like statutes designed to obtain justice with ease. See AGIP v. AGIP (2010) ALL FWLR (Pt. 520) 1198. Failure to comply with the form prescribed for bringing up an action makes such an action incompetent and fatal. See ALAO v. A. AJAO (19g6) 5 NWLR (Pt. 45) 802, UDEME v. UGWU (1997) 3 NWLR (Pt. 491) 57. He, therefore, submitted that the incompetency of the Application robbed the Court of the jurisdiction to hear the Application decide it on its merit; ALEMALOKE v. PRESIDENT, IBADAN CUSTOMARY COURT (2007) ALL NLR (Pt. 358) 1201. He then urged the Court to resolve this Court in their favour.