In Re: Yesufu Faleke Mogaji V. Oyedeji Akanbi Mogaji & Ors (1986) LLJR-SC

In Re: Yesufu Faleke Mogaji V. Oyedeji Akanbi Mogaji & Ors (1986)

LawGlobal-Hub Lead Judgment Report


On 4th December. 1985, I dismissed this appeal and indicated that I would give my reasons for so doing today. I now give my reasons.

The proceedings which led to this appeal arose in the course of hearing in Suit No. 1/299/82. In that Suit the first set of Respondents as Plaintiffs had sued the second set of respondents claiming as follows:-

“(1) against the 1st defendant for possession of the parcel of land belonging to and declared as property of the Plaintiffs in Suit CV/35/69, situate at Odejimi Compound, Oke-Offa Baba Sale, Ibadan and bounded as follows:-

(a) In the front by Oje Market to Oke Offa

(b) On the right by Karimu Alhaji’s house

(c) On the left by Ebenezer Tailor’s shop

(d) At the back by Rasaki Ajani’s House.

(2) The Plaintiffs claim against the 2nd Defendant for possession of the parcel of land belonging to and declared in Suit CV/35/69 as property of the plaintiffs and situate at Odejimi’s compound, Oke Offa, Babasale, Ibadan, and bounded as follows:-

(a) In the front by Oje Market to Oke-Offa Road

(b) On the right by Ebenezer Tailor’s shop

(c) On the left by vacant land of Plaintiff

(d) IN the back by Olaobi Iya Aira’s House.

(3) The Plaintiffs also claim against the defendants jointly and severally perpetual injunction restraining the defendants, their servants, agents or privies from alienating, selling building on or otherwise dealing with any portion of the Plaintiffs’ family land at Odejimi’s compound, Ibadan, except those granted to them by the Plaintiffs’ family and excised from the judgment in Suit CV/35/69”

Pleadings were ordered, filed and delivered. It is pertinent to mention that the plaintiffs averred in paragraphs 5,6,15 and 16 as follows:-

“(5) The whole of the area verged ‘Red’ on Plan No. OG.907/76 attached herewith belonged to the Plaintiffs family, by grant from Oderinde, and the plaintiffs title to the whole of the said area verged ‘Red’ on Plan No. OG.907n6 have been confirmed by judgment in Suit No.CV/35/69 between Oyeniwe Ishola and another and Jimoh Ajadi and 4 others dated 21st November, 1972.

(6) The said defendants in Suit No.CV/35/69 are dissatisfied with the said judgment and appealed up to the Federal Court of Appeal where they lost.

(15) The defendants were cognisant of Suit CV/35/69 and all the applications referred to in paragraphs 12 above but continued to build on the land in dispute despite repeated warnings, disturbances, protests and constant interference by the Plaintiffs which often led to Police intervention on many occasions.

(16) The case against the said defendants in Suit CV/35/69 was finally disposed of by the Federal Court of Appeal which confirmed the judgments of the lower court appealed against and after the determination of the said case, the plaintiffs wrote to the defendants to give up possession of the parcel of land on which they built but they refused and ignored the letter”.

In their amended statement of defence the defendants replied in paragraphs 4, 12, 13, 14, 15 and 21 as follows:-

“(4) The Defendants state that this is fifth action instituted by the Plaintiffs family against the members of the Defendants’ family and others over and in respect of the land in dispute in this Suit.

(12) The Plaintiffs again in 1969 and in spite of the judgment of the Supreme Court aforementioned filed Suit No. CV/35/69 (i) Oyemiwe Ishola (ii) Raji Akanni for themselves and on behalf of Odejinmi family vs (i) Jimoh Ajadi (ii) Musiratu Aduke (iii) Morakinyo Arimo(iv) Fabanwo Akanbi Arimo (v) Raimi Okunlola in the Ibadan City No.1 Grade ‘A’ Customary Court Mapo, Ibadan before D.E. Olagbaju Esq.

(13) Judgment was delivered in this Suit against Defendants.

(14) The defendants being dissatisfied with the judgment appealed to the High Court which court (Ayoola, J.) affirmed the judgment of the Customary Court.

(15) The defendants further appealed to the former Western State Court of Appeal which Court also confirmed the judgment of the High Court…..

(21) The Defendants admit that the land in dispute i.e. the land comprising Falokun Fashile compound, Oke Offa, Baba Sale Ibadan originally belonged to the Odejinmi, the ancestor of the Plaintiffs. But states further that many years ago, Odejinmi made a grant of the said land to the ancestors of the Defendants i.e. Fashile who together with Falokun his brother occupied the land so granted until their death many years ago.”

Hearing in the Suit was set down for 6th, 7th, 8th and 9th June, 1983. By a motion dated 7th June, 1983, the appellant herein prayed the High Court for “an order adding the Applicant (for himself and on behalf of the Fashile/Falokun family) as defendants in this Suit”. In paragraph 5 of the supporting affidavit, the applicant i.e. appellant herein, swore that “the present defendants are on the said land as members of the Falokun/Fashile family and with the consent of the said family, Olowofoyeku, J. after considering the application against the provisions of order 7, Rule 10(2) of Oyo State High Court Rules dismissed the application. He held that-

“If the defendants against whom the plaintiffs claim in possession as counsel for the defendants has suggested, are allotees of others who are owners, evidence of such allotment and ownership by the others on facts properly pleaded are what the court needs in order to adjudicate affectually and completely on the question of the entitlement of the plaintiffs to possession”.

The appellant had before the High Court brought an application for stay of the proceedings which application was also dismissed on 8th June, 1983. But the appeal to the Court of Appeal was against the ruling of the High Court dismissing the Appellant’s application to join as a defendant in Suit 1/299/82.

When an application for stay of proceedings in 1/299/82 was also moved by the Appellant in the Court of Appeal, that Court, with consent of both parties, treated it as an appeal against the High Court ruling on Joinder and took argument.

The appeal was dismissed on 9th day of August, 1983. Dosunmu, J.C.A. who wrote the lead judgment concluded that –

“In any case the real test is as stated at page 227 of the judgment that the question to be settled must be a question in the action which cannot be effectually and completely settled unless a person is a party. I am satisfied that this is not the question here. The question in this action, which is one of possession can be effectually and completely settled without the appellants being a party”.

The appellant then appealed to this Court. Only one ground of appeal was filed and it complained that –

“The Federal Court of Appeal erred in law in dismissing the appellants appeal and not adding the appellant as defendant in the proceeding before the High Court of Justice, Oyo State, Ibadan in Suit No. 1/299/82 when the Appellant is a necessary party to the proceedings as his right to the subject matter of the proceedings would be adversely affected should the prayers of the plaintiff be granted in the High Court”.

Learned Counsel to the appellant, Mr. O.A. Abiose, in his brief of argument identified the question for determination as –

“Was the High Court as well as the Court of Appeal correct in holding that the Appellant is not a necessary party to the suit before the High Court having regard to the claims before the Court”

In his submissions, he contended that they were in error. His other submissions can be summarised thus:-

(1) That in their statement of defence the defendants in 1/229/82 claim through the appellant’s family i.e. the Fashile/Falokun family.

(2) The defendants are not sued as members of appellant’s family but as members of Fabunmi family – a unit of appellant’s family against whom they claim they obtained judgment in CV/35/69

(3) The defendants claim that they are allotees of the land on which they are by the appellant’s family which claims title to the land.

(4) He wondered whether the appellant was not a necessary party having regard to the claim before the Court.

(5) The claim being for possession the common law rule is that anyone who is out of possession must recover the land by the strength of his title and not by any defect of the title of any person in possession. He referred to Oduola and Ors vs. Coker and Anor. (1981) 5 S.C. 197.

(6) That as a matter of practice intervention will be granted to any person who claims interest in land in dispute between 2 other parties Samuel v Samuel (1879) 12 CH.D.152. He also referred to the practice and procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria see Akinola Aguda p. 134 paragraph 10.87.

(7) The intervener need not show that the plaintiff has cause of action against him. He needs to show that his interest will be affected by the result of the action. He must show that an enforceable right he had against one of the parties will be affected.

He further submitted that the Appellant claims he is owner of the land in respect of which plaintiff says he obtained judgment against somebody else. The suit CV/35/69 was a suit against one Fabunmi alone and not against FalokunlFashile family. In that judgment, land was excised for Falokun/Fashile family but that the appellant now claimed the land in respect of which the respondents got judgment against Fabunmi belonged to the Falokun/Fashile family.

Finally, he submitted that in future litigation the appellant would be at a disadvantage if he attended the present trial as a witness only for he would not be able to rely on estoppel. He referred to Odahe v Okujem and Ors. (1973) 11 S.C. 343, 351.

In his reply, learned counsel to the respondents, Alhaji Agbaje started by putting the records straight as he put it. He stated that in the present suit the plaintiffs did not sue defendants in respect of their individual lands but as representatives of the Falokun/Fashile family and also to determine the extent of the land granted to Falokun/Fashile family. He referred to the judgment in CV/35/69 Exhibit A at pp. 31 – 40, particularly p. 32 lines 22 – 27; p.33 lines 26-34; p. 35 lines 41 – 47 (where 3rd defendant in CV/35/69 Morakinyo said he is the head of the Falokun/Fashile family); p. 37 lines 10 -15 (where the extent of the land granted to Falokun/Fashile ancestors of 3rd defendant) was shown p. 40 lines 20 – 25 (where the area excised and granted to the Falokun Fashile family was shown). He further submitted

(1) That it was after the judgment that the children of 3rd and 4th Defendants went outside the area granted to Falokuni Fashile family in Suit CV/35/69 hence the present action.

(2) The 1st Defendant in the present action was the 5th Defendant in the 1969 case. Exhibit A. The 2nd defendant herein is the son of the 3rd defendant in the 1969 case.

(3) That as between the parties the issue of title to the land had been settled and the present defendants have no defence whatsoever to the action and the matter can be determined completely without the appellant’s intervention.

(4) The present defendants were sued because they were the only members of the family who went beyond the areas granted them in the 1969 case and, finally,

(5) Since the issue before the Court is one of possession and the plaintiffs rely on Exhibit A which had settled the issue of title between the parties, the present action can be settled between the parties before the Court without intervention of the appellant.

The principles governing intervention by a third party have been settled by many authorities in England and in this country. See Amon v Raphael Tuck and Sons Ltd. (1956) 1 Q.B. 357 or 19561 A.E.R. 273); Peenok Investments Ltd v Hotel Presidential Ltd. (1982) 12 S.C. 1 at pp. 35-55 (per Idigbe J.S.C.) 92-105 ; Adegbenro v Attorney’97General of the Federation and Ors. (1960) 1 All N.L.R. 431; A. Lajumoke v Mrs. R. Doherty 1969, Vol. 1 N.M.L.R. 281; Oriare V Government of Western Nigeria (1971) 1All. N.L.R. 138; Okafor v Nnaife (1973) 3 S.C. 85; Odadhe v Okujemi (1973) 11 S.C. 343; Awani v Erejuwa II (1976) 11 S.C. 307; Re Lord Cable (deceased) (1976) 3 CH. D. 417; Walter and Sullivan Ltd. vs. J. Murphy and Sons Ltd. (1955) 1 All E.R. 843.

In my judgment in the Peenok case, I referred to those authorities and stated-

“From the earliest times, as far as this rule is concerned, the consideration has always been whether the entry of the party sought to be joined “will enable the Court effectually and completely adjudicate upon and settle all questions” (See Order 15 Rule 6 of the Rules of the Supreme Court in England, Supreme Court Practice 1979 Vol. 1 at p. 179) Byrne v Brown (1889) 22 O.B.D. 666-7; Montgomery v Fay (1895) 2 Q.B. 321, 324; McCheane v Cyles (No.2) (1902) 1 CH. 911; Amon v Raphael Tuck and Sons Ltd. (1956) 1 O.B. 357 or (1956) 1 A.E.R. 273. Perhaps the best construction of this rule is that which was placed on it by Wilmer J. in “The Result” (Miguel) Sanchiez & Companies S.I. vs Result (Owners) Nello Simons Ltd. Third Party (1958) Probate 1974 cited in Okumagba’ s case (supra). p. 179 the learned judge said:-

“Having regard to the terms of the rule, it appears to me that the question to be determined on this summons are these. First, is the cause or matter liable to be defeated by the non-joinder of the third parties as defendants This I think means in effect; is it possible for the court to adjudicate upon the cause of action set up by the plaintiffs, unless the third parties be added as defendants Secondly, are the third parties persons who ought to have been joined as defendants in the first instance Thirdly and alternatively, are the third parties persons whose presence before the Court as defendants will be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the question involved in the cause or matter”

Although the appellant made his application to the High Court under Order VII Rule 12, the correct rule is Order VII Rule 10 (2) of the rules of the High Court of Oyo State. The provisions are as follows:

“10(1) No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties and the parties (the Court) may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

(2) The Court or a Judge may, at any stage of the proceedings either upon or without the application of either party and on such terms as to the Court or a Judge may seem just, order that the names of any parties improperly joined, whether as plaintiffs or as 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 in order to enable the Court effectually and completely to adjudicate upon and settle all the questions be added”

This rule was construed by this Court in Chief A. O. Uku and 4 Ors. vs D. E. Okumagba and 3 Ors. (1974) 3 S.C. 35 Udoma, J.S.C, after quoting with approval the words of Devlin J. in the in the Amon case (Supra) concluded that:

“The beginning and end of the matter is that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose”

It seems fairly clear that the key words are –

“effectually and completely to adjudicate upon and settle all the questions”

The aim is to put an end to litigation and not to have as Lord Denning said in Re Vanderville’s Trusts: White v Vanderville Trusts (1969) 3 A.E.R. 496 at 499.

“Two parallel proceedings in which the self same issue was raised, leading to different and inconsistent results”.

One other objective in ruling that a person is a necessary party is for him to be bound by the result of the litigation. As Devlin J. put it in Amon v Raphael Tuck (Supra)

“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 and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party” .

It has also been settled that the courts will not compel a plaintiff to proceed against a party he has no desire to sue See Aromire v Awoyemi (1972) 1 A.N.L.R. part 1 p. 101 at 108; Lajumoke v. Doherty (1969) Vol. 1 N.M.L.R. 281; Dollfus Miegate Compagune S.A. v Bank of England (1950) 2 All E.R. 605 at 608. In Norris v Beazley (1877).2 C.P.D. 80; 46 L.J.Q.B.169 a defendant in an action on a bill of exchange against the acceptor, sought to add the name of a company as defendants under R.S.C. 1875 Ord. 16 R.13 (the rule to which order 16 r. II corresponds) (Order 16 R. 11 or 15 Rule 6 now is in pari materia with Order 7 R.10 of the Rules of the High Court of Oyo State under consideration). The application was refused. Lord Coleridge there said:-

“It seems to me to be correctly argued that those words plainly imply that the defendant to be added must be a defendant against whom the plaintiff has some cause of complaint, which ought to be determined in the action, and that it was never intended to apply where the person to be added as defendant is a person against whom the plaintiff has no claim and does not desire to prosecute any”

Denman, J. put it briefly and perhaps more directly where in his own judgment he observed –

“I am quite clear, however, that the Court ought not to bring in any person as defendant against whom the plaintiff does not desire to proceed, unless a very strong case is made out, showing that in the particular case justice cannot be done without his being brought in”

In Lajumoke’s case (Supra), the Western State Court of Appeal (per Eso, J.A. as he then was) pointed out that it was not laying down a rule that a party can never be joined in any event against the wishes of the plaintiff. This could happen.

“(1) When the justice of the matter demands that the party has to be joined before the case can be properly determined or

(2) When the plaintiff’s case or the defendant’s case in the existing action cannot be effectually and completely determined without the joinder”

In that case, the plaintiff brought an action for damages against a defendant for negligence. The defendant applied to join the plaintiff’s son as a co-defendant and the application was refused. It would seem that the Western State Court of Appeal drew a distinction between an application for joinder by a plaintiff or an intervener on one side and an application by a defendant to which neither the plaintiff nor the.person to be joined consents. It is in respect of the latter that the court particularly frowned, for as Eso J.A. (as he then was) said:-

“‘From all these decisions considered it is our view that one principle evolves clearly and that is, in the class of cases where joinder is sought by the defendant against the wishes of the plaintiff and without the consent of the person sought to be joined, that is, where the joinder is not being sought by an intervener nor is a joinder sought by the plaintiff in the action, the court has always been reluctant to allow the joinder”

The Court of appeal nevertheless, except for the two conditions mentioned above, agreed with Lord Coleridge’s views in Norris v Beazley (Supra) that the courts would not compel a plaintiff to proceed against a defendant against whom he has no claim and did not desire to prosecute any. Idigbe, J.S.C. in Peenok’s case (supra) drew attention to the addition made in England to order 15 Rule 6 (1) of the Rules of the Supreme Court. The sub paragraph 2(b)(ii) added reads;

“(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or an application

(a) xx xxx xx

(b) Order any of the following persons to be added as a party namely

(i) xx xxx xx

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter”

In Gurtner v Circuit and Others (1968) 2 Q.B 587 the Court of Appeal in England held that where the determination of an action between two parties would directly affect a third person’s legal right or his pecunary interest, the courts had a discretion, to order the third person to be added to the action on such terms as the court considered desirable so that all matters in dispute could be “effectually and completely determined and adjudicated upon”

There Lord Denning said:-

“I prefer to give a wider interpretation to the rule, as Lord Esher M.R. did in Byrne v Brown (1899) 2 Q.B.D. 657. It seems to me that when two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill then the Court in its discretion may allow him to be added as a party on such terms as it thinks fit”

But it was in Re Vanderville’s Trust: White v Vanturville Trusts: (1969) 3 A.E. R. 496 that Lord Denning gave a very wide interpretation to the rule on joinder giving judicial effect to the amendment mentioned above. Desirable as this rule may be it Is necessary to point out that it has not yet been Incorporated in the Rules of the High Courts in this country. 1shall nevertheless deal with it later on in this judgment as it does not appear to me in the circumstances of this case to avail the appellant.

Having therefore looked at the settled principles of law as they relate to joinder of parties, it remains to see how they can be applied to the appeal in hand. In the first place, it is clear that the appellant is not a person that the respondents sought to have sued. The appellant was never in possession of the portion ff land in dispute. The respondents sued the persons they found in possession. In the second place, the Falokun/Fashile family of which the appellant is the current Head is bound by the decision of the High Court in CV/35/69 and is clearly estopped from raising any question of title in respect of the area in dispute against the plaintiffs/respondents. In CV/35/69 the suit was instituted by Oyenewe Ishola & Anor against J .A. Ajadi and Ors as defendants. On the face of it defendants were not defending on behalf of the Falokun/Fashile family.

However, as pointed out by Alhaji Agbaje, there is enough material in that judgment to show the real position of the appellant’s family. The children of the 3rd and 4th defendants in the 1969 suit are the persons who went outside the area granted to the FalQkun/Fashile family. The 1st defendant in the present suit was the 5th Defendant in the 1969 case.

The 2nd Defendant in the present suit is the son of the 3rd defendant in the 1969 case. Moreover, the 3rd defendant Morakinyo who gave evidence at length in the 1969case was the head of the Falokun/Fashile family. It follows that the defendants on record in 1969 case and in the present suit, as well as members of the Falokun/Fashile family cannot reopen the issue of title to the area verged red which was adjudged the property of the plaintiff/respondents in the 1969 case. The only areas left to the Falokun/Fashile family are the area verged green in the plan tendered in CV/35/69 and the area built upon by Ogunmakinde, Morakinyo, Arimo, Akinkunmi Ayinde and Fabunmi Akanbi.

From the pleadings filed by the parties, the defendants are building outside these areas hence the action against them. I therefore accept the submissions of Alhaji Agbaje that there is nothing for the appellant to defend, and it would be pointless joining him as a party. Having regard to the nature of the claim which is for recovery of land over which the plaintiffs/respondents had got title in the 1969 case, the issues of possession and right to possession which are the only issues that can arise between the parties in this suit No. 1/299/82 can in my view be effectually and completely settled without the appellant being joined as a party. The absence of the appellant as a party will not defeat the claim nor can I see in what manner the legal rights of the appellant can be adversely affected by the result of this suit.

The plaintiffs/respondents had formulated their claim against the defendants, trespassers on their land. On the principles I stated above, this does not fall into one of those conditions under which a defendant can be accepted even against the wish of the plaintiff. As I earlier indicated, the matters in my view can be settled completely between the parties before the Court without joining the appellant. Is it just and convenient to join the appellant I think not. From paragraph 21 of the appellant’s affidavit at page 4 of the record, he is coming to court to testify in support of his assertion that “the defendants in Suit 1/299/82 as well as other members of the family are on the land in dispute in the suit with the permission and consent of the Falokun and Fashile family by allotment to them”. I think the appellant can come and give evidence in support for whatever it may be worth. As for convenience, I do not think that if all the other conditions for a joinder were present, I would have been persuaded by the contention of the respondents that it would not be convenient for such an order to be made. At least that must be the implication of paragraphs 12, 13, 14 and 17 of the counter-affidavit sworn to by Oyedeji Akanbi (Mogaji) of Odejinmi compound. In it he swore that –

…it is brought to delay the hearing of this case

13 the action was filed as far back as 26th June 1982, before it was set down on 25th April 1983 for hearing against 6th, 7th 8th and 9th of June 1983

14 the appellant for about 1 year never thought of joining in this case but brought this application on the very next day the hearing was to go on

17 the 1st Defendant has given evidence and it remains the appellant applicant to give evidence if he so desires”

Mr. Abiose had pointed out that at the time the application for joinder F was made no evidence had been taken and only the question of res judicata had been considered. I do not think much difficulty would have arisen if indeed the appellant was a necessary party. In Odadhe v Okujeni (1973) 11 S.C. 343 this Court has decided that joinder can be granted at any time if it is necessary.

In all the circumstances of this case I cannot help but agree with Alhaji Agbaje’s contention in his brief that-

“It is quite obvious that the intention of the appellant is to reopen a matter which has been concluded as against the defendants thereby creating confusion unnecessary delay and expenses and not a bona fide claim of legal right they have none”

In paragraphs 22 and 24 of his affidavit, the appellant averred;

“22. The applicant denies the title of the plaintiffs in Suit 1/299/82 to the land in dispute

  1. The FalokunlFashile family were not parties to Suit CV/35/69. Oyerinde Ishola and Anor. v. Jimoh Ajadi & 4 Ors, on which the plaintiff base their title to the land in dispute”

But from all I have observed as regards Suit CV/35/69, I cannot see how the applicant and his family can avoid that suit. They are clearly bound by it. From the proceedings of the 1969 suit, it is also not correct that that judgment was obtained against Fabunmi alone. It would seem to me that the remedy open to the appellant if he feels that there is a dispute as to title between him (or his family) and the plaintiffs in 1/299/82 is to take a substantive action for declaration of title.

If he is not successfully met by a plea of res judicata, the two suits may be consolidated for trial. I see no way in which the judgment of the Court of Appeal can be faulted. Infact the appellant is faced here with concurrent judgments of the High Court and the Court of Appeal. This Court will not depart from them unless there has been an error in substantive or procedural law, or there has been a miscarriage of justice. See Etowa Enang v Adu (1981) 11 – 12 S.C.25. I see none here.

In the circumstances, this appeal must fail. It was for these reasons that I dismissed this appeal on 4/12/85. Costs in favour of the respondents are as then decreed.


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