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Ogundoyin V. Ilesanmi: On Whether Court Can Give Judgment Against A Person Who Is Not A Party To An Action

Date:

Citation: (2023) 16 NWLR PT. 1910 AT 209. COURT OF APPEAL DECISION.

Written by MORUFF O. BALOGUN , FIMC, CMC, CMS

Summary of facts:
The 1st respondent, Mr. Omoyajowo Ilesanmi (with one Paulina Ilesanmi now deceased) as plaintiffs at the Osun State High Court of Justice claimed against the 2nd respondent sued as the sole defendant among others: a declaration of the court that the 1st and2nd respondents are the only bonafide and legitimate Administrators of the Estate of Ilesanmi George Ebun, that all other document in contrast with the Letter of Administration issued to them in the matter of the Estate of Ilesanmi George Ebun being another Letter of Administration or probate letter issued to any other null and void; an order of court setting aside/ revoking the purported person (s) areOsun State Letter of Administration issued by the Probate Registry,Court of Justice when was fraudulently obtained by the 2nd respondent; a declaration of the court that all the purported sales of any of the Property of Late Chief Ebun Ilesanmi George Ebun by the 2nd respondent; are null and void. A declaration of the court that the 1st respondent is the bonafide owner of the property at No.9/10 Ede Road, Ile-Ife with its Deed of Conveyance Registered as Number 46 at page 46 in Volume 1602 of the Lands Registry in the Office at Osogbo, Osun State; perpetual injunction of the court, restraining the 2nd respondent from going near the premises of the 1st respondent and their witnesses and also landed property of the 1st respondent situate and lying (sic) Dada Estate, Osogbo, Osun State; landed property at B285, Imo Street, Ilesha, Osun State; No. 2. Ire Akari Street, Imo Ilesha, Osun State, factory premises at No. 1. Ilesanmi Village, Oba-Ile, Ondo State, e.t.c.The second respondent though served with all the processes in this suit did not defend the suit which proceeded to trial and judgment was delivered.The appellant sought and obtained the leave of the court to prosecute this appeal as an interested party, since he was not made a party at the proceedings in the trial court. The case of the appellant was that long before the institution of the action on 16th March, 2011, specifically as at 6th November 2009, the 1st respondent as plaintiff knew that the Land and building, lying situate at 9/10 Ede Road, Ile-Ife had been lawfully assigned by the 2nd respondent to the appellant herein but deliberately failed, refused and/or neglected to join the appellant as a necessary party in a litigation which result would impact negatively on the appellant by virtue of his earlier purchase of and physical occupation of the Land and premises known as No. 9/10 Ede Road, Ile-Ife.The appellant claimed that the 2nd respondent as sole defendant at the lower court neither entered an appearance to the suit nor filed any pleadings as required by the rules of the trial court and stayed away from the court throughout the proceedings thereby allowing the 1st respondent to secure a default judgment on 12/12/2011. The appellant also claimed that he was never aware of the existence of the court action against his proprietary and pecuniary interests in the subject matter of the litigation (Immovable Property at No, 9/10 Ede Road, Ile-Ife) until 14/3/2012, when a warrant of possession was executed on the said property in favour of the 1st respondent and the late Mrs. Paulina Ilesanmi.

Dissatisfied with the judgment of the trial court, the appellant appealed to the Court of Appeal.
Held (Unanimously allowing the appeal):

On whether court can give judgment against a person who is not a party to an action – The court cannot give a Judgment against a person is not made a party or has no opportunity of defending the suit. Equally so is the fact that the court has no jurisdiction to decide the fate of a person or a matter concerning him when such a person is not made a party to the action.On who is a necessary party – A necessary party to a proceeding is a party whose presence and participation is necessary or essential for the effective and complete determination of the claim before the court. Thus, a necessary party to a suit is a party who is not only interested in the subject matter of the proceeding but also a party in whose absence the proceedings could not be fairly dealt with. Consequently, without his being a party to the suit, the court may not be able to effectively and completely adjudicate upon and settle all the questions involved in the suit.

On Distinction between proper parties; desirable parties and necessary parties- Proper parties are those who, though not interested in the plaintiff’s claim, are made parties for some good reasons e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or those who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be fairly dealt with.

On Principles guiding determination of whether an order of joinder should be made-In determining whether an order of joinder should be granted the court must ask itself these questions:

Is the cause of action liable to be defeated by the non-joinder?

Is it possible to adjudicate on the matter unless the 3rd party is joined as a defendant?

Is the 3rd party a person whose presence before the court will be necessary in order to enable the court to effectually and completely determine or settle all the questions involved in the cause or matter?

On When an order of joinder should be made – The only reason which makes a party a necessary party is that he should be bound by the result of the suit, which question cannot be effectively and effectually settled without such a party. This is because it is improper to join as co-defendants persons against whom the claimant has no cause of action. On when an order of joinder of party should be made and when should not- Any party that may be affected by the order of the court in a suit ought to be joined. In this wise, the test to be applied is whether the person sought to be joined or seeking to be joined will have his or her interest irreparably prejudiced if the order sought is not made. The court should order a joinder whether as plaintiff or defendant, any party whose presence before the court is necessary for the effectual and complete adjudication and settlement of all questions arising for determination in the matter. However, where the claims and counter-claims would not be defeated if joinder is not made, the court would be without jurisdiction to make such an order.

Courtesy: MORUFF O. BALOGUN, FIMC, CMC, CMS IJEBU ODE, OGUN STATE.0805287141409121207712 [WHATSAPP]

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