RAJI ORIARE (APPELLANT)
GOVERNMENT OF WESTERN NIGERIA, ATTORNEY-GENERAL W/S, IBADAN CITY COUNCIL CHIEF LADIMEJI FIJABI (RESPONDENTS)
(1971) All N.L.R. 139
Division: Federal Supreme Court
Date of Judgment: 15th April, 1971
Case Number: SUIT NO. S.C. 275/69
Before: Ademola, C.J.N., Lewis, Madarikan, JJ.S.C.
Appeal from the Court of Appeal (West).
(1) In the application of the rules about joinder the test applicable is this: May the Order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal right?
(2) The question for determination in this case was whether Order 7 rule 10(1) and (2) were wide enough to admit a joinder of the two parties or whether for some reasons their being joined in the case would help to resolve the issue before the court and bring the litigation to an end.
(3) In this case the issue before the court was one of a claim of ownership and not one of compensation for acquisition of land; consequently, the 4th and 5th defendants were properly joined by the judge of the High Court and so the appeal must be dismissed.
Had the issue before the court been of the amount of compensation payable, there could have been no doubt that on the question of joinder of the 4th and 5th defendants who are now claiming the land as owners, the case of Vandervell Trust Ltd. v. White and ors. (1970) 3 W.L.R. 452 would have applied and the Supreme Court would have inclined to agree that a joinder would be out of the question, since the decision of the issue of the amount of compensation to be awarded would not have determined the question of ownership.
Cases referred to:
Amon v. Raphael Tuck and Sons Ltd, (1956) 1 Q.B. 367.
Vandervell Trust Ltd. v. White and ors., (1970) 3 W.L.R. 452.
Rules and Orders cited:
High Court (W.S.) (Civil Procedure), Rules Order 7 Rule 10(1) and 2.
APPEAL from the Court of Appeal (West).
SUIT NO. S.C. 275/69.
Chief Williams for the Appellant.
Adio (P.S.C.) for the 1st and 2nd Respondents.
Lowo for the 3rd Respondent.
Adesina for the 4th and 5th Respondents.
Ademola, C.J.N. (delivering the judgment of the court):-This appeal arises out of a claim for declaration of title to land brought by the plaintiff/appellant against the Government of Western Nigeria and two others and in which latterly two interveners sought to be joined as co-defendants. The learned judge of the High Court of the Western State who heard the application, granted the application and joined the interveners as 4th and 5th defendants respectively. The plaintiff appealed to the Western State Court of Appeal which dismissed his appeal. He has now appealed to this Court.
Undoubtedly, the matter of joinder of parties is of great procedural importance, and the first question which comes to our mind is to examine the rules of court in this matter and thus be guided by the rules. Before doing so, however, it appears necessary to state something about the facts. The plaintiff claimed declaration of title to 601 acres of land in Ibadan which he stated the Government of Nigeria acquired compulsorily from him in 1934 when his family was paid compensation for the crops on the land and Government went into possession. Compensation for the land was never paid to him although he wrote several petitions to the Government. Later, according to him, the predecessor-in-title to the 3rd defendant (Ibadan City Council), whom he alleged had no title to the land, leased the land in dispute to the Government of Nigeria.
The 3rd defendant claimed the land as a portion of land set aside since 1894 for public use and that in 1931 the land was acquired by the Government of Nigeria and subsequently a lease of the land was made to the Government of Nigeria by the 3rd defendant. In effect the 3rd defendant made claim to the land.
After pleadings had been filed on both sides, the two interveners moved the court to be joined as defendants stating in their affidavit that portion of the land adjacent to that claimed by the plaintiff belonged to their family and for which they had obtained judgment against the plaintiff in the High Court at Ibadan, which judgment had been affirmed in the Supreme Court. As we stated earlier, leave was granted and an order joining the two defendants was made.
Rules about joinder in the Western State are the same as the English rules, and Order 7, rule 10 of the High Court, Western State (Civil Procedure) Rules which governs the matter provides as follows:-
"10 (1) No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the parties 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 of 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 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."
In the application of these rules, judges have used different phrases, e.g. "can the question at issue be resolved without the joinder?" or "if the applicant is not joined, will it make the determination of the matter ineffective?." In the case of interveners, as in the instant appeal, Devlin, J. (as he then was), laid down a test, accepted and often quoted by many judges thereafter, in the case Amon v. Raphael Tuck and Sons Ltd. (1956) 1 Q.B.357 p.371, thus
"May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal right?"
It was submitted before us that if the 4th and 5th defendants are joined it will not make the determination of the matter ineffective, nor can the claim fail because the 4th and 5th defendants are not added.
The question we have to decide is whether the rules of court as stated above are wide enough to admit a joinder of the two parties, or whether for some reasons their being joined in the case would help to resolve the issue before the court and bring the litigation to an end.
In the case of In re Vandervell's Trust v. White & ors. (1970) 3 W.L.R. 452, where the House of Lords said that it was wrong to join the Inland Revenue in an action between two parties was cited to us. In that case it was said that the rules of court, Order 15, rule 6(2)(b) which is identical with our own rule precluded the joinder of the Inland Revenue, and apart from this rule, the High Court has no jurisdiction to do so as parliament has entrusted exclusive jurisdiction with regard to appeals against assessments to the special and general commissioners. We agree with the decision in that case because it was clear that the Commissioners of Inland Revenue would not, by their presence in court, do anything to ensure that the matters in dispute between the parties are "effectively and completely" determined. As Lord Morris of Borth-y-Gest put it in his judgment in the above-mentioned case (see page 458 of the Report):-
"If the presence of the Commissioner were necessary to ensure effectual and complete determination and adjudication of the matters in dispute between the executors and trustees it would be open to the court of its own motion and on such terms as it thought just to order the Commissioners to be added as defendants. In the situation of the present case, I can see no reason at all why the court would contemplate such action."
In the instant appeal despite what Counsel for the plaintiff/appellant has said, we are in no doubt as to the issue before the High Court at Ibadan, which is one of a claim of ownership to the land in dispute. The plaintiff claims the land as his family land which he said was acquired by Government in 1934. The 3rd defendant on the other hand claimed the land as land held on behalf of the community in accordance with native law and custom and which was in 1931 acquired by the then Government of Nigeria from the predecessor-in-title of the 3rd defendant and was leased to that Government for 999 years. We therefore feel unable to agree with Counsel for the appellant that the issue before the court was one of compensation for acquisition of the land in dispute by the 1st defendant. The claim itself before the court is one of declaration of title to the land. Had the issue before the court been of the amount of compensation payable, there could have been no doubt in our mind that on the question of joinder of the 4th and 5th defendants who are now claiming the land as owners, the case of Vandervell's Trusts (supra) would have applied, and as in that case, we would have been inclined to agree that a joinder would be out of the question, since the decision on the issue of the amount of compensation to be awarded would not have determined the question of ownership.
We are therefore of the view that the 4th and 5th defendants were properly joined by the learned judge of the High Court and this appeal must be dismissed.
There will be costs to the respondent assessed at 33 guineas.