Nathan Onwuka & Anor V. Ben Maduka & Ors (2002)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA, J.S.C.

The short question which arises in this appeal is whether where a person has been added as party in a suit by order of the High Court pursuant to 0. 3 r. 10 of the High Court Rules (Civil Procedure) 1988 of Anambra State, the court which made that order can, acting under O. 3, r. 7, itself strike out from the suit the name of the party so added on the ground that he had been improperly joined. O. 3, r. 10 provides that:

“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, on the application by such persons or by a party to the suit, permit such persons to be added as plaintiffs or defendants in the suit, as the case may be.”

O. 3, r. 7 provides that:

“That 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.”

The appellants in this appeal, who were the plaintiffs in the High Court of Anambra State commenced an action against one Ben Maduka (“the original defendant”) whereby they claimed damages for trespass and injunction. On an application made pursuant to O. 3 r. 10 of the High Court Rules, the High Court (Keazor, J.) on 7th June, 1994 added the applicants in the application, Chiefs Chukwujekwu, Amizu, Okoli and Izundu, as defendants in a representative capacity, “for themselves and as representing the Nnewi Community except the plaintif’. These persons thus became the 2nd to 5th defendants in the suit. The appellants on 21st July 1994 applied under 0.3 r. 7 to the High Court for an order –

“That the 2nd to 5th defendants improperly joined be struck out from this suit.”

The application came before Keazor, J, who before he could rule on a preliminary objection raised by counsel to the 2nd-5th defendants was transferred. The matter then came before Ononiba, J, who after hearing fresh arguments on the preliminary objection to the application upheld the objection on 13th December, 1995.

The facts on which the plaintiffs relied in the High Court for their application to strike out the names of the added defendants, as can be found in the main affidavit sworn in support by Nathan Onwuka, the 1st plaintiff, were, put briefly, that: the 2nd defendant was aware of a previous suit on the land and is from Umuenem Otolo Nnewi which is very far from Umudim; the 3rd defendant is from Akaboukwu village which had no connection with “Agbo-Edo,”

the land in dispute; the 4th defendant’s people had no land around the land in dispute; the 2nd – 5th defendants do not represent the quarters they come from but were busy bodies who elected themselves to bring the application to be joined as defendants as Nnewi Community did not meet to consider the case; paragraph 7 of the affidavit in support of the motion for joinder was false and, Nnewi as a town had no communal land. It is evident that the whole purport of the affidavit was that the application to add the 2nd to 5th defendants should not have been granted because either, the parties joined did not represent the persons or community they claimed they were representing or, the community itself had no interest in the subject matter of the suit. These were facts and issues which could have been put before Keazor, J., before he made an order adding the 2nd – 5th defendants, but they were not so put, despite the opportunity which the appellants had of doing so since they were present in court when the 2nd -5th defendants’ application was heard and determined by Keazor, J. In the affidavit in support of the application the appellants tried to proffer explanations for their counsel’s neglect to put the facts before Ikeazor, J. However, such explanations were inconsequential, since what was material was that those facts were at all material times available but were not put before the trial judge.

In striking out the appellants’ application Ononiba, J, held that he had no power to review the order made by Keazor, J. He reasoned that although 0.3 r. 7 gave the High Court wide discretion to strike out names of parties “improperly joined”, parties “improperly joined” could not be parties added by the court but parties joined by the plaintiff while filing the suit ab initio. He drew support for that view from the decision of this court in Akporue & Ors v. Okei & Ors (1973) NSCC 649.

On the appeal to the Court of Appeal, the appellants argued that 0.3 r. 7 did not limit “parties improperly joined” to persons joined by the parties ab initio and that the High Court would not be sitting on appeal from its own decision were it to set aside an order it made joining the defendants. The Court of Appeal rejected both contentions and dismissed the appeal. Salami, JCA, who delivered the leading judgment of the court below, with which Akpabio, JCA, and Tobi, JCA (as he then was) agreed, in a clear and well considered judgment, held that the provisions of 0.3 r. 7 granted the court “discretionary power to strike out name or names of any party or parties, whether as plaintiff or defendant, improperly joined at any stage of proceedings.” His conclusion was that the provisions of that rule concerned:

“party or parties joined by the plaintiff at the institution of the action and not to the party or parties who sought to be joined or were added after the institution of the action on an application made to the court by an existing party, be it a plaintiff or a defendant, or an intervener who claims some share or interest in the suit after satisfying the court that such a person is a necessary party, for purpose of enabling the court effectually and completely adjudicate upon and settle all the issues in the suit.”

Salami, JCA, held that there was a distinction between “a party joined” and “a party added” and that while 0.3 r.7 empowered the High Court to strike out from the suit party or parties improperly “joined” it did not empower the court to do the same in respect of party or parties “added”. He relied on the decision of this court in Chief Epere & Anor v. Aforije (1972) 3 SC 113, 122; Akpome & Another v. Isicheri Okei & Ors (1973) 12 SC 127 and Skenconsult (Nigeria) Ltd v. Ukey (1981) 1 SC 6, and held that as Keazor, J, was competent to make the order adding the 2nd -5th defendants to the suit, “which order was a result of exercise of his discretion after examining affidavits and listening to argument”, the appellants’ remedy lay on appeal and not in application to a Judge of co-ordinate jurisdiction to have his order set aside.