OKOYE V. NIGERIAN CONSTRUCTION
| Pages | 422-454 |
422
NIGERIAN SUPREME COURT CASES [1991] 2 N.S.C.C.
OKOYE V. NIGERIAN CONSTRUCTION
1.
LEONARD OKOYE
2.
DANIEL KANU
3.
CHIDI NWOGU
4.
JOHN OBILALI
APPELLANTS
5.
JAMES OKOYE
6.
ALFRED OKOYE
7.
GILBERT UDO
8.
ALOYSIUS UDE
V.
1.
NIGERIAN CONSTRUCTION &
FURNITURE CO. LTD.
)
2.
SEIDY ENTERPRISES LTD.
)
3.
THE DEPUTY SHERIFF,
)
MAGISTRATE'S COURT, ONITSHA.
4.
EUGENE OKONKWO,
)
RESPONDENT
CHIEF BAILIFF, MAGISTRATE )
COURT, ONITSHA.
5.
AMECHI CHIEKWE,
SENIOR BAILIFF,
HIGH COURT, ONITSHA.
APPEAL NO. S.C. 188/1989.
SUPREME COURT OF NIGERIA
UWAIS,
J.S.C.
KAWU,
J.S.C.
NNAEMEKA-AGU, J.S.C.
A KPATA ,
J.S.C.
BABALAKIN,
J.S.C.
19th July, 1991.
Appeals - Non joinder - Person interested - Consequential orders - Costs - Review by
appellate court - Competence of - Issues for determination - Whether include issues
tending to show that a ground of appeal or issues arising therefrom in an opponent's
brief are erroneous or irrelevant.
Jurisdiction -
Objection - Duty of Court.
Practice and Procedure - Hearing - Whether restricted to oral evidence - Non- joinder -
Effect of - Onus on person complaining - Judgment of a High Court - When may another
High Court interfere - Jurisdiction - Objection to - When determined - Proceedings in
lieu of demurrer - Requirements of - Whether oral evidence is necessary.
Words and Phrases - "Issue" - Meaning of in relation
to an appeal.
OKOYE V. NIGERIAN CONSTRUCTION
423
ISSUES:
1.
What order should an appeal court make where there is a failure to join as
parties to a suit persons who should have been made parties and the case
5
goes to trial?
2.
What is the effect of failure to join as a party a person who ought to have been
joined?
3.
When may a court declare its judgment or the judgment of another court of
co-ordinate jurisdiction null and void?
4.
What is the extent of an Appeal Court's competence to review costs awarded
by a lower court?
5.
What must a court do when faced with an issue of jurisdiction over the suit
before it and where such jurisdiction is challenged by way of demurrer?
FACTS:
Seidy Enterprises Ltd. (i.e. the 2nd defendant) instituted an action and obtained
judgment against Nigerian Construction and Furniture Co. Ltd. (i.e. the defen-
dant/respondent) in the sum of N26,278.00. Due to default in payment of the
20 judgment debt, the 2nd defendant then levied execution against some immovable
properties of the defendant/respondent. These goods were bought by the plain-
tiffs/appellants at a public auction conducted by the 3rd, 4th and 5th defendants
on 27/1/82.
On 20/4/82 the auction and sale of the property were set aside by the High
Court of Onitsha at the instance of 1 he Construction Company;and an order that
another auction be conducted with the consent of the Attorney-General of Anam-
bra State was made. The purchasers were however not made parties or notified
of the proceeding leading to the setting aside of the sale by public auction.
Consequently, each of the eight plaintiffs/appellants then instituted a suit in
30 Onitsha high Court challenging the setting aside of the sale. The suits by each of
the eight plaintiffs/appellants were consolidated. In response, the defendant/re-
spondent filed an application, under Order 29 Rules
1
-3 of the Eastern States High
Court Rules, wherein it was contended that the court lacked the jurisdiction to set
aside the order setting aside the auction sale.
35
In his ruling, after hearing submissions of counsel, the learned trial judge upheld
the objection of the Construction Company and held that he lacked jurisdiction to
entertain the action, and accordingly dismissed the consolidated suits. He
awarded N200.00 costs in favour of the defendants.
The plaintiffs appealed to the Court of Appeal against the ruling of the trial court.
40
The ground of appeal was, inter alia, that "the learned trial judge erred in law in
holding that he had no jurisdiction to entertain the plaintiffs/appellants' claims."
The Court of Appeal, after hearing oral arguments, dismissed the appeal and
assessed costs of the proceedings in the trial court at N
-
300.00 and awarded
M400.00 in favour of the defendant/respondent in respect of the appeal.
45
Still dissatisfied, the plaintiffs/appellants appealed to the Supreme Court
against the decision of the Court of Appeal, on the ground, inter alia, that the Court
of Appeal erred in law
in
making an order as to costs against the plaintiffs/appel-
lants in the trial court.
10
15
25
HELD :
1.
If an action is improperly instituted because those who should have been made
parties were not made and the case went to trial, an appeal court would have
a number of options depending on the facts of each case, namely:
50
424
NIGERIAN SUPREME COURT CASES [1991] 2 N.S.C.C.
(i)
To remit the case for re-trial and for those who ought to have been joined
to be joined;
(ii)
To strike out the action if a re-trial would necessitate extensive and/or
complicated amendments to the writ and statement of claim to reflect the
joinder;
(iii)
To join for purposes of the appeal the person who ought to have been
joined in the trial court; and
(iv)
To hold that the person complaining that he ought to have been joined
was not such a necessary party and that the non- joinder would not defeat
the cause or matter.
(See p.437 lines 34 - 48).
2.
Failure to join as a party a person who ought to have been joined will not render
the proceeding a nullity on ground of lack of jurisdiction. Failure to join a
necessary party is an irregularity which does not affect the competence or
jurisdiction of the court to adjudicate on the matter before it. However, the
irregularity may lead to unfairness which may result in setting aside the
judgment on appeal. Setting aside a judgment or making an order striking out
the action or remitting the action for in such circumstance will not be for lack
of jurisdiction or on the basis of the judgment being nullity.
In the instant case, therefore, the issue that the plaintiffs/appellants were not
put on notice nor made parties to the proceedings setting aside the sales, were
not issues as to the jurisdiction and competence of the court. And as the trial
court and the Court of Appeal rightly said, the only avenue opened to the
plaintiffs/appellants in the case was to challenge the order of the first High
Court by way of appeal.
(See p.438 lines 18-20, 25-27 & p.439 lines 33-38 &
41 - 43).
3.
A court has authority to declare its judgment or the judgment of another court
of co-ordinate jurisdiction null and void if there is a fundamental defect in the
proceedings which goes to the issue of jurisdiction and competence of the
court.
(See p.441 lines 20 - 24).
4.
An Appeal Court has competence to review the costs awarded in the lower or
trial court only where the appellant who was the loser in the lower or trial court
succeeds in his appeal. In that event, the costs awarded against him will,
invariably, of necessity be set aside and an order as to costs in the lower or
trial court is made in his favour. This is because the losing party in the court
below who wins on appeal is entitled to be indemnified, that is, to have his
usual remedy in costs in the Appeal Court and in the Court below where he
ought to have succeeded in the first place. An Appeal Court is also competent
to review the costs where the successful party in the lower court
cross-appealed against a part of the judgment and succeeded.
In the instant case, the defendant/respondent was awarded N200.00 by the
trial court. The respondent did not complain that the costs awarded were
inadequate. The Court of Appeal for no valid reason unanimously varied the
costs awarded in favour of the defendant/respondent in the trial court to read
N300.00. The order was erroneous.
(See p.441 lines 42-52 & p.442, lines 1-4).
5.
The objection to the jurisdiction of a court is an issue touching on the
competence of the court to entertain the matter placed before it. When it is
raised either in the statement of defence or by way of demurrer pursuant to
Order 29, as in the case, the issue should be resolved on the facts pleaded by
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