ALHAJI SULAIMAN IBRAHIM SAMBO (HRH. THE KPANTI ZING) V ABUBAKAR BELLO & ORS
Appeal no: CA/YL/140/2016
AREAS OF LAW:
ACTION, APPEAL, ATTORNEY GENERAL, CHIEFTAINCY MATTERS
SUMMARY OF FACTS
The 1 st Respondent took out a writ of summons in the High Court of Taraba State
against Appellant and 2 nd and 3 rd Respondents claiming a declaration that the purported selection of Kpanti Zing organized, conducted and supervised by the 3rd Defendant on the 5/11/15 is null, void and of no effect whatsoever and contrary to the laid down rules and procedure, an order declaring that the Plaintiffs were unlawfully and deliberately denied their right to participate in the selection exercise, and order directing a fresh selection exercise to be conducted by the 2nd & 3rd Respondents, in accordance with the law, laid down rules, procedure, and in accordance with native law and custom; with the Plaintiff and other interested members of the recognized ruling houses, participating amongst other reliefs.
The Appellant filed a motion on notice setting aside the 1st Respondent's writ for failure to join necessary parties to the suit and failure to accompany the writ of summons with a competent statement of claim almost at the close of pre-trial.
The lower court after considering the affidavit evidence of both parties and written addresses of their counsel, ruled that members of the Electoral college who participated in the selection of the Appellant as Kpanti or Chief of Zing are necessary
parties who should be joined as Defendants in the case. They were therefore joined by the order of court. Dissatisfied with the trial court's ruling, the Appellant has filed the instant appeal before this court.
HELD
Appeal Dismissed
ISSUES FOR DETERMINATION
Ø WHETHER in the circumstances of this appeal, the trial Court was right to order suo motu the joinder of members of the Electoral College to the 1st Respondent's Originating processes pursuant to Order 13 Rule 16 (2) of the Taraba State High Court (Civil Procedure) Rules, 2011 when the 1st Respondent did not apply for joinder?
Ø WHETHER the trial Court was right when it suo motu ordered the joinder of the members of the Electoral College to the 1st Respondent's Suit without regard to the Provisions of the Public Officer's Protection Act?
RATIONES
REPLY BRIEF - PURPOSE OF A REPLY BRIEF
"A reply brief is suppose to deal with all new points arising from the Respondent's brief. See Order 19 Rule (1) of the Court of Appeal Rules 2016". PER J.S.ABIRIYI, J.C.A
COURT - WHETHER COURTS CAN COMPEL A PLAINTIFF TO PROCEED AGAINST A PARTY HE HAS NO DESIRE TO SUE
"It is settled law that the Court will not compel a plaintiff to proceed against a party he has no desire to sue. However various rules of Court provide for joinder of parties to an action. See Order 13 Rule 16 (1) and (3) and Rule 17 of the Taraba State High Court (Civil Procedure) Rules 2011". PER J.S.ABIRIYI, J.C.A
JOINDER OF PARTIES TO AN ACTION - BASIS FOR AN APPLICATION OF JOINDER OF PARTIES
Order 13 Rule 16 (1) and (3) provides as follows:
"16 (1) No proceedings shall be defeated by reason of misjoinder or non joinder of parties and the Court may deal with the matter in controversy so far as regards the rights and interest of the parties actually before it.
(3) A Judge may order that the names of any party who ought to have been joined or whose presence before the Court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings be added.
Rule 17
17 (1) Any application to add or strike out or substitute or vary the name of a plaintiff or defendant shall be made to the Court by motion."
It is clear that the rules deal essentially with joinder of parties to an action. Such joinder can be made by the Court suo motu or on application by a person who can satisfy the requirement that the joinder is necessary to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter. See Mogaji V. Mogaji & Ors (1986) LPELR – 1891 SC. The Supreme Court stated further that the governing principle is that the termination of litigation is in the interest of the public hence where issues between the parties involve third parties whose interests are affected and the omission of which was bound to result in further litigation such parties are those whose presence will be necessary for the effectual and complete adjudication of the matter before the Court. Their presence as parties is a sine quo non for the purpose. The plaintiff must have a claim against the person sought to be joined. Where there is no such claim against the person sought to be joined there can be no jurisdiction to make the order. See also Oduola & 2 Ors V. Coker & 1 Or (1981) LPELR – 2254 SC at 44 where Obaseki JSC stated in clear terms that a trial Judge can suo motu effect a joinder if there is clear evidence of the names of the person sought to be joined, nature of his material interest and its relevance to the issues in controversy as would show that the person to be joined is a necessary party to the suit and his presence is a sine quo non to the effectual and complete determination of the matters in controversy". PER J.S.ABIRIYI, J.C.A
ATTORNEY GENERAL - POWERS OF THE ATTORNEY GENERAL FOR INSTITUTING AND DEFENDING AN ACTION
"It is settled law that the Attorney General is the Chief Law Officer of the State. He is the person vested with the responsibility under the Constitution for bringing and defending actions on behalf of the State. The Attorney General can be sued as a defendant in all civil matters in which a claim is properly made against the Federal Government or the State Government or any of its authorised agencies arising from any act or omission complained of: see Ezomo V. Attorney General of Bendel State (1986) LPELR – 1215 (SC) at page 38 – 39 and Attorney General Kano State V. Attorney General of the Federation (2007) LPELR – 618 SC page 28".PER J.S.ABIRIYI, J.C.A
STATUTES REFERRED TO
Court of Appeal Rules 2016.
Taraba State High Court (Civil Procedure) Rules 2011
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