ISSUE: JOINDER OF PARTY(IES) powered by John Johnson (NBA ABA DIGITAL LEGAL ADVISER) & C.K. Anyanwu (Lawyer of Promise).

The state of the law as at today is that when a party is not properly joined in a suit and his name is struck out, any allegations made against him on appeal is irrelevant and the Notice of Appeal having his name is incompetent but where a party's name has not been struck out and he is displaced, a stranger to the proceedings at the trial Court has usurped his place, the appeal will be incompetent and the appellate Court will lack jurisdiction to hear it.

STEAMCO LTD. vs. MARK & ORS.(2018)LPELR-45947(CA)                                                                   

ISSUE: JOINDER OF PARTY(IES)

-Effect of striking out the name of a party not properly joined in an action

                                    

PRINCIPLE:

"The Appellant filed a Reply Brief and strongly submitted in respect of the 1st Respondent's issue No. 1 that the lower Court in the judgment being appealed against struck out the names G. E. Bitar, George Bitar and Joseph Bitar as not being proper parties before the Court, and even though the Appellant indicated that it was appealing against the whole judgment, it did not raise any ground of appeal nor is it appealing against that aspect of the lower Court's judgment striking the names of those parties.

He submitted that the moment that order striking out their names was made they ceased to be parties to the suit and as such their names could not have been included in the Notice of Appeal filed by the Appellant. 

He cited the cases of Onafowokan vs. Wema Bank Plc. (2011) ALL FWLR Part 585 Page 201 at 212; Okereke vs. Umahi (2016) ALL FWLR Part 833 Page 10902 at 1917 and Akeredolu vs. Mimiko (2014) ALL FWLR Part 728 Page 829 where it was held that a ground of appeal is supposed to represent the Appellant's complaint against the judgment of a Court, and strongly stated that the Appellant did not make the striking out the names of the said three parties a ground of appeal hence no issue was raised in that respect in this appeal.

 By not raising any grouse about the striking out order, it follows that the Appellant accepted that order and does no need to join them as parties when their names had been struck of the suit. He further pointed out that no Notice of Preliminary Objection was filed by the 1st Respondent to the Notice of Appeal. He then persuaded this Court not to countenance the 1st Respondent's argument in this respect.

Before delving into the issues suggested by the Appellant for determination herein, it needs be pointed out that 1st Respondent's issue No. 1 though it seemingly appeared as a proliferated issue, is indeed a direct attack on the competency of the appeal itself since it raised the allegation of unilateral exclusion of the names of some of the parties at the Court below from the Notice of Appeal by the Appellant. The Supreme Court made it clear in the case of Shinning Stars Nig. Ltd. vs. AKS Steel Nig. Ltd. (2011) 4 NWLR (Pt. 1238) 596, where the initial Notice of Appeal filed by the Appellant in the Supreme Court was against four Respondents, the Appellant on a motion filed unilaterally, reduced the number of Respondents to three. 

The apex Court upheld a Preliminary Objection raised against the reduction and ruled the application as incompetent and dismissed the same. Since the issue touched on the jurisdictional competence of this Court to entertain the appeal in the first instant, it cannot be brushed aside by this Court even though no separate Notice of Preliminary Objection as prescribed by the Rules of this Court was filed by the 1st Respondent. 

See the case of The Registered Trustees of the Airline Operators of Nigeria vs. NAMA (2014) LPELR-SC 149/2006, per Kekere-Ekun, JSC, in which the ways a Preliminary Objection can be raised were straightened out, that is, the Respondent may file a separate formal Notice of Preliminary Objection or he may raise it in his Brief of Argument or he may employ both ways. 

The essence of the notice is to give the appellant sufficient notice within which to reply to the Preliminary Objection. Whether a separate notice was filed or it was raised in the Respondent's Brief what matters is for the Appellant to have sufficient notice of the Preliminary Objection, that is at least three days before the hearing of the appeal.

 In the instant case the Respondents raised it not as preliminary objection or preliminary issue, but as one of the issues to be determined in the appeal. That notwithstanding there is an imperativeness on the part of the Respondent or his Counsel to seek the leave of the Court to move the objection before the hearing of the appeal. 

The effect of the failure to move the objection during the oral hearing of the appeal is that it is deemed abandoned. It is trite that a party filing it in the Brief must ask for leave of the Court to move the objection when the oral hearing of the appeal commences. In the instant it is clearly borne out in the record that during the oral hearing of this appeal, neither the Respondents nor their Counsel asked for the leave of this Court to move the preliminary issue. 

Nevertheless, issue of jurisdiction can be raised without leave of the Court and at anytime. Okoro, JSC, in Jev vs. Iyortyom (2014) 14 NWLR Part 1428 Page 575 stated that a Preliminary Objection which borders on jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it was raised. Such issue, I must say can be raised for the first time in this Court with or without leave.

 See Nnonye vs. Anyichie (2005) All FWLR CPL 253, 504. It was held in Wema Securities and Finance Plc vs. Nigeria Agriculture Insurance Corp. (2015) LPELR-SC 177/2006, that issue of jurisdiction constitutes an exception to the general principle that leave must be obtained to raise and argue a Preliminary Objection. It can be raised without leave.

Nweze, JSC, opined that due to its fundamental nature, it is exempted from the disabilities and restrictions which hamper other legal points from being canvassed or agitated for the first time on appeal, Western Steel Works Ltd. & Anor. vs. Iron Steel Workers Ltd. (1987) 2 NWLR (Pt. 179) 188.

 In effect, such an issue of jurisdiction could always be raised without leave. Issue of jurisdiction can be raised even viva voce. I must observe that since issue 1 borders on the jurisdiction of this Court to entertain the appeal in the first instance, this Court has to consider irrespective of whether it was raised as an issue and whether the 1st Respondent obtained the leave of this Court during the oral hearing of the appeal.

Be that as it may, the Appellant made it clear in its Reply Brief that the names of those three parties allegedly omitted in the Notice of Appeal, had already been struck out by the lower Court. It is evident in page 76 of the record of appeal that before the final pronouncement of the lower Court in its judgment, it had reached the conclusion that the 2nd, 3rd and 4th Respondents at the lower Court who were only Directors of the 1st Respondent were improperly joined as parties to the suit and consequently struck their names off the suit for misjoinder.

The effect of striking out the said Respondents' names is that they were removed or expunged from the suit. From that moment, they were no longer connected with nor affected by the judgment of the lower Court eventually delivered in that same sitting. In Yusuf vs. Obasanjo (2004) 9 NWLR Part 877 Page 144, the Supreme Court, per Kutigi, JSC, on the consequences of striking out the name of a party who was not properly joined in an action, held that "When a party is not properly joined in a suit and is struck out, any allegations made against him become irrelevant and incompetent." What it depicts is that if the Appellant had joined the struck out parties to the Notice of Appeal, it would rendered the Notice of Appeal incompetent since they were no longer parties to the suit. This preliminary issue is resolved in favour of the Appellant." Per ORJI-ABADUA, JCA.(Pp.16-23,Paras.F-A).   

IN RE: APEH & ORS. vs. PEOPLE'S DEMOCRATIC PARTY & ORS.(2017)LPELR-42035(SC)

ISSUE: PARTIES TO APPEAL-Whether a party to an appeal is bound to maintain and sustain the appeal between the same parties and on the same subject.         

PRINCIPLE:

The 5th Respondent (INEC) and the 2nd set of Respondents, argued along the same lines, and I agree with the Respondents that from whatever angle this Application is considered; it lacks merit. Order 2, Rule 8 of the Rules of this Court leaves no room for any other conclusion.

 This Court considered the said Rule 8 in the case of PPA vs. INEC (supra) and held as follows (per Ngwuta, JSC) - An appeal is "an invitation to a higher Court to review the decision of a lower Court to find out whether on a proper consideration of the facts placed before it and the applicable law, the Court arrived at a correct decision". 

See Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at 211 per Oputa, JSC,... The facts, the appellate Court will review in an appeal are facts presented by or elicited from parties at the trial Court. If any party is displaced and a stranger to the proceedings at the trial Court has usurped his place, the appeal will be incompetent and the appellate Court will lack jurisdiction to hear it. This applies equally to an application for leave to appeal." Per AUGIE, JSC.(Pp.75-76,Paras.B-A).