GREEN V. GREEN
| Pages | 1115-1148 |
GREEN V. GREEN
1115
GREEN V. GREEN
5
CHIEF ABUSI DAVID GREEN
V
10 CHIEF DR. E.T. DUBLIN GREEN
APPELLANT
RESPONDENT
SUIT NO. SC 206/1986
SUPREME COURT OF NIGERIA
ESO,
ANIAGOLU,
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NNAMANI,
UWAIS,
OPUTA,
10th July, 1987
J.S.C.
J.S.C.
J.S.C.
J.S.C.
J.S.C.
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Appeals - Findings of lower court - Where no appeal against finding of lower
court, finding binding on parties - Chieftaincy - Plaintiff must establish
right to stool for issue of disturbance or injury to right to be considered not
a natural right, one conferred by nominators and electros.
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Civil Procedure - Non joinder not ground for defeating action - Desirable to
distinguish between proper parties and desirable parties - Considerations upon
which joinder of necessary parties dependent - Judgments - Finding in judgment
binding even if no formal order to that effect is made - Practice and procedure
- Court
Must
decide according to law only.
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Equitable Remedies - Injunction - Not to be granted in vacuo - Wrong to grant
injunction when no right has been established.
ISSUES:
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1. What order should an appeal court make where there was a failure to join as a
party to a suit a person who claims to have an interest in the subject matter or
who may be affected by the result?
2.
What reasons would make it necessary to make a person a party to an action?
3.
Could the Supreme Court make an order for striking out a case when the Court
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of Appeal had ordered the dismissal of the same matter?
FACTS:
The appellant as plaintiff brought an action against the respondent in the High
Court claiming a declaration that he is entitled to the chieftaincy stool of Jeky Green
House of Bonny; an injunction to restrain the defendant from disturbing and injur-
45
ing him in the use and enjoyment of the said stool and from imposing a rival can-
didate and for damages. The house is a sub-house within the larger chieftaincy
house of Dublin Green Main House whose head and paramount chief is the re-
spondent. The rival candidate for the stool was Solomon Dublin. The respond-
ent was responsible for presenting the chief of the sub-house to the Bonny Chiefs
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Council. The trial judge found that the plaintiff had not proved his nomination as
a chief elect to the sub-house, but still proceeded to grant the injunction sought
and he made further orders which were not sought by the parties. The respond-
ent appealed to the Court of Appeal complaining that the trial judge erred in grant-
ing the injunction and making the orders which he was not requested to give in the
1116
NIGERIAN SUPREME COURT CASES
[1987] 2 N.S.C.C.
pleadings and upon which he did not hear parties and other persons affected by
the orders. The Court agreed with these contentions and set aside the judgment
of the lower court holding inter-alia that trial judge erred in making orders affect-
ing persons who were not parties to the action. The plaintiff then appealed to the
Supreme Court where the issue before the court was whether the Court of Appeal
5
ought to have ordered that the action be struck out for want of necessary parties.
HELD:
1.
Where an appellate court finds that not all parties were before the court, it could
make any of the following orders - namely striking out dismissal, non-suit, retrial
- are available to the appellate court. It is only the surrounding circumstances
10
of each individual case - including the way the claims were formulated whether
those persons not joined were "proper parties" or "desirable" or "necessary
parties" and effect of the proposed order on the overall justice of the case etc
- that will dictate the appropriate order to be made.
2.
The only reason which makes it necessary to make a person a party to an action
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is that he should be bound by the result of the action and the question to be
settled. There must be a question in the action which cannot be effectually and
completely settled unless he is a party.
(Amon v Raphael Tuck & Sons Limited
(1956) 1 Q.B.D. 357 at p. 380 per Devlin, J.). Under our law also a person
whose interest is involved, or is in issue in an action and who knowingly chose
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to stand-by and let others fight his battle for him is equally bound by the result
in the same way as if he were a party.
3.
The Supreme Court cannot make an order for striking out a case which the
Court of Appeal said should be dismissed unless it is shown that the Court of
Appeal was wrong and this can only be done by a proper appeal specifically
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attacking that finding. There is here no such appeal.
4.
The plaintiff having failed to establish his alleged right to the stool, the logical
thing for the trial court to have done was to dismiss his claim.
5.
An order for an injunction cannot be made
in vacuo.
The aim of an injunction
is usually to protect an established legal right. Where that right has not been
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established as in this case, it will be, and it was, very wrong of the trial judge
to grant the injunction sought.
6.
Though others may also be equally interested in the stool and it may be
desirable to have all the claims joined to be tied together to avoid a multiplicity
of actions, each person can proceed with his claim alone. The trial court made
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unwarranted orders against persons who were not parties before it, namely the
Bonny Chiefs Council.
7.
Accordingly, the observation of the Court of Appeal that the case be dismissed
is upheld and the plaintiff/appellants appeal is dismissed.
ESO, J.S.C.
(Dissenting):
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1.
There is nothing strange in the order of the learned trial judge, and indeed
having regard to the inter-connection of Solomon with the case, it would have
been strange if he had conscious of the presence of Solomon in the whole
episode. The Plaintiff's case had a good reception with the trial judge and one
would understand his reluctance in not declaring him as having been duly
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elected in view of the fact that the evidence as to having been appointed chief
- elect of the sub-house according to Bonny custom and tradition not being
very satisfactory. The consequential order that the recognition of Solomon
M.D. Green by the Bonny Council be withdrawn by that Council and the further
order that the Council hold proper inquiry and thereafter order a fresh election
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could not be regarded as far fetched in the least.
2.
There is nothing extra-ordinary in this consequential order for this was precisely
what the Supreme Court did in
Adigun v. A-G. of Oyo State
(1987) 3 S.C.N.J.
118 when it was faced with a similar awkward situation.
GREEN V. GREEN
1117
3. What a court should look into is the core of the matter, the real issue which
could be drawn from the claim, pleadings and evidence. That is the real case
before the court and it is not the mere surface presented by sometimes ill-drawn
pleadings.
5
4. What parties must be joined for an effective and complete adjudication and for
enabling the court to settle all the questions involved in a matter or cause is
what one must bear in mind when considering joinders of unnecessary as
opposed to desirable parties. Indeed, the Rule of Court affecting this case,
that is Order 4 Rule 5 of the High Court Eastern Nigeria Rules does the same.
1
0
5. It would be iniquitous to determine a matter against a person without at least an
attempt to hear him. If the Court is to decide against the blood that flows through
the veins of Solomon surely, decency, at least, demands he should be heard.
To be heard, he must be a party. He is the
alteram partem
here and he must
be joined for a complete and effectual determination of the case.
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6. The sole aim of the Court is to seek justice. True, it must be justice according
to law, but when parties are available, who are so affected by a claim, pleadings,
evidence and a subsequent order would spell detriment, or indeed incalculable
wrong, to what they consider their right, and they have either technically or
inadvertently been excluded from stating their own side to the story. It is with
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respect waving goodbye to justice. The appeal must succeed and it is allowed.
CASES REFERRED TO IN JUDGMENT:
1.
Oloriode v. Oyebi
(1984) 1 S.C. N.L.R. 390.
2.
Ekpere & Ors v. Aforije & Ors
(1972) 1 All N.L.R. p. 220.
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3.
Me Cheane v. Gyles
(1902) 1 Ch.D. 911 at p.917.
4.
Dollfus Mieq et Compaqnie S.A. v. Bank of England
(1950) 2 All E.R. 605 at
p. 608.
5.
Ezenwa v. Mazeli &
5
Ors
(1955) 15 W.A.C.A. 67 at p. 68.
6.
Amon v. Raphael Tuck & Sons Ltd
(1956) 1 Q.B.D. 357. at p.380.
30
7.
Leeds v. Amherst
16 L.J. Ch.5.
8.
Esiaka v. Obiasogwu
14 W.A.C.A. 178.
9.
Abuakwa v. Adanse
(1957) 3 All E.R. 559.
10.Settlement Corporation v. Hosehschild
(No.2) (1969) 1 W.L.R. 1664.
11.Peenok v. Hotel Presidential
(1983) 4 N.C.L.R. 122.
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12.Byne & Ors v. Bronwyn Diplock, Third Party
(1889) 22 Q.B.D. 657 pp.666-
669.
13.Lajurnoke v. Doherty
(1969) N.M.L.R. 281 at p. 287.
14.
Gurtner v. Circutt
(1968) 2 Q.B.D. 587.
15.
Uku & Ors v. Okurnagba & Or;
(1974) 1 All N.L.R. 587.
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16.Miquel Sancheq & Compania S.L. v. Owners of Result (Nello Simon Ltd.
Third Party) -
usually cited in short 1958.
17.Ibeneweke v. Egbuna
(1964) 1 W.L.R. 219.
18.Madukolu v. Nkemdilim
(1962) 1 All N.L.R. 587 at p. 595.
19.Marris v. Luton Corporation
(1946) K.B.D. 114.
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20.
Tidy v. Battman
(1934) 1 K.B. :319 at p 322.
21.King v. Hoare
13 M. & W 494.
22. Sun Insurance Office Ltd. v. Victoria Ojemuyiwa
(1965) N.M.L.R. 451.
23.Kish v. Taylor
(1911) 1 K.B. 625 at page 634.
24.Ajiofor v. Onyekwe & Ors
(1972) 1 All N.L.R. (pt.2) 527 at p.536.
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25.
Ekpenyong & Ors v. Nyong & Ors
(1975) 2 S.C. 71 at p. 80.
26.Adigun vs. A.G. of Oyo State
(1987) 3 S.C.N.J. 118.
27.Re Vandervills Trust
(1971) A.C. 812.
28.Re
Vandervelle
(1969) 3 All E.R. 496.
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