Motion for Joinder of a Party Versus Motion Challenging the Jurisdiction of a Court: The Order of Precedence
By David Andy Essien, Esq.*
INTRODUCTION:
A lot has been said by all cadres of Courts in Nigeria concerning the untrammeled and expansive need to afford necessary parties an opportunity to participate and ventilate their dissatisfactions in a case. Procedural law has earmarked Motion for Joinder of a party as a conduit for the actualization of this goal. As colourful and alluring as this policy consideration appears, there are higher considerations in the legal lithosphere that every court must, as a matter of first resort, show obeisance to before entertaining the issue of joinder of a party. And an objection or challenge to the jurisdiction of a court is one of such “higher considerations”.
It is necessary to mention that while a court of law has the inherent jurisdiction to assume interim jurisdiction and determine whether it has the vires to entertain a matter, such an exercise of interim jurisdiction must be trimmed, patterned and/or tailored to resolve, one way or the other, the challenge to its jurisdiction. Nothing more; nothing less! Any attempt by a court to expand the magnetic field of its interim jurisdiction to first determine the question: “whether a party ought to be joined in a Suit”, will amount to a null and barren adventure akin to placing the cart before the horse.
This work is a bold step directed at spreading certainty over the order of precedence between a Motion for Joinder of a party and a Motion challenging the jurisdiction of a court.
THE PRIORITY:
Jurisdiction is a can’t-do-without: the medula espinal of the entire legal process. Its presence is so vital that its absence, in one breath, annihilates every step previously taken and, in another breath, cripples every step scheduled for the future. Lending his voice to the discussion on the never-ending importance of jurisdiction to a court, the Law Lord, Honourable Justice Samuel Chukuwudumebi Oseji, JCA (as he then was), in the case of PATIL V. FEDERAL REPUBLIC OF NIGERIA (2016) 8 NWLR (Pt. 1515) 483 at p. 515, paras. D – E (CA), beautifully remarked:
“I therefore have nothing extra to add except to emphasise on the admonition of the Supreme Court in Utih V. Onoyivwe (1991) 1 NWLR (Pt. 166); (1991) 1 SCNJ 25 to the effect that jurisdiction is the blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.”
The conservative Latinism: non potes ponere aliquid in nihilo et exspectes illud stare is and remains a potent weapon in the legal arsenal of any court seeking to calm the raging storm with respect to the order of precedence of the two Motions under consideration in this work. The said maxim literally translates: “you cannot place something on nothing and expect it to stand.” Since jurisdiction is the rock upon which every court stands, it is elementary and even commonsensical that once there is a challenge to jurisdiction, a court must punctuate; take a deep breath; and provide an answer to the said challenge. And this exercise must take place before the merits of an application for joinder of a party is entertained.
A fortiori, it is juristically healthy to conclude that an order for joinder of a party can only and properly be made in a suit that is competent and not one that is incompetent. This reality inheres in a court the obligation of first resolving the question of competence before proceeding to join necessary parties.
On this note, a court must always establish that it has jurisdiction before it takes any further step(s) in the proceedings or deals with any matter such as the merits of an application, a suit or an appeal. In the case of CHIEF F. A. BAMISILE V. FRANCIS OJO OSASUYI & 5 ORS (2007) 10 NWLR (Pt. 1042) 225 at pp. 255 – 256, paras. G – E (CA), Honourable Justice Helen Moronkeji Ogunwumiju, JCA (as he then was), extensively x-rayed the submissions of counsel on this vexed issue of priority. For the intensity of the arguments of counsel and the assistance it sheds on this work, I reproduce the arguments below:
“The question in issue here is the order of precedence with regard to the two motions before the learned trial Judge.
Learned senior counsel Chief A. O. Akanle, SAN submitted that the law is that all motions in a case must be taken and disposed of. He cited Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) pg. 87 at 114. He also submitted that all necessary parties to a case must be joined. He cited Or. 11 r. 3 & 5 of the Ondo State High Court Rules applicable to Ekiti State; Oloriode v. Oyebi (1984) 1 SCNLR 390 at 400; INEC v. Izuogu (1993) 2 NWLR (Pt. 275) pg. 270 at pg. 295.
In answer to the above argument, the learned counsel for 1st – 3rd Respondents argued that in June, 2005 when the new respondents’ counsel discerned that the respondents has good grounds of law which if raised would bring the action of the appellant to an end, counsel promptly filed a motion of preliminary objection dated 8/6/2005 challenging the jurisdiction of the trial court to hear the appellant’s suit. The appellant’s counsel filed a counter-affidavit on 1/9/2005 and the motion was fixed for hearing on 24/10/2005. On that day, the learned trial Judge decided to hear the motion of preliminary objection first. He submitted that the correct order of precedence is that where there is a preliminary objection, it is mandatory on the court to decide it first. He cited Afro-Shelters v. FAAN (2004) All FWLR (Pt. 208) pg. 941; Ibrahim v. Gaye (2003) FWLR (Pt. 171) pg. 1559; (2002) 13 NWLR (Pt. 784) 267.
On this issue learned counsel for the 4th – 6th respondents, Mr. Ogunmoye, Solicitor-General, Ekiti State submitted that the lower court was perfectly right to have heard the motion for preliminary objection first since the decision of the court on the issue of jurisdiction raised in the preliminary objection would determine whether or not there existed a judicial basis to exercise any further power in respect of the matter. He cited Ogoja Local Government v. Offoboche (1996) 7 NWLR (Pt. 458) pg. 48 and Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) pg. 266.” (Underlining mine, for emphasis)
Untying the Gordian knot, the said Law Lord, at pp. 256 – 257, paras. F – A, Ratio 10 (CA) of the above case, explained thus:
“On this issue, I think that generally, the procedure is well settled that where there is a notice of preliminary objection against the hearing of a suit even at the appeal stage, the proper thing for the court to do is to hear the preliminary objection first, before proceeding to hear the suit, application or appeal as the case may be. Even where the two matters – preliminary objection and substantive issues are taken together, the court is still obliged to determine the preliminary objection first before delving into the consideration of the substantive issue.
The application filed before the lower court by the appellant was for substitution of the deceased appellant. However, the preliminary objection of counsel to the 1st – 3rd respondents in the lower court was a challenge to the competence of the entire action as constituted and the jurisdiction of the trial court to entertain same. An objection to the competency of an action must be resolved by the court first since where it is upheld it marks the end of the substantive matter before the court.
The courts have always held consistently that it is always advisable to decide and dispose of a preliminary point if it would dispose of the case without the need to call evidence. See Adigun v. Ayinde (1993) 11 SCNJ 1; (1993) 8 NWLR (Pt. 313) 516 and ACB v. Obmiami (1993) 6 SCNJ Or. (1990) 5 NWLR (Pt. 149) 230.” (Underlining mine, for emphasis)
Again, it is all the more interesting to note that a challenge or objection to the jurisdiction or competence of a court can be made orally [see the case of WILBROS (NIG.) LTD V. ATTORNEY GENERAL OF AKWA IBOM STATE (2008) 5 NWLR (Pt. 1081) 484 (CA) at p. 496 and IBRAHIM V. GAYE (2003) FWLR (Pt. 171) 1559 (CA) at p. 1583] and where it is made orally, the oral application enjoys unadulterated priority over a pending Motion for Joinder of a party. On the propriety of an oral application, Honourable Justice Galadima, JCA, cleared the air in the case of CHIEF EMMA O. EMESIM V. HON. CALISTA NWACHUKWU (1999) 3 NWLR (Pt. 596) 590 at p. 604 (CA), as follows:
“A motion means an application which can be oral or written depending on the peculiar nature of the case. If an application is based on law only, or on undisputed facts which both parties and sometimes, the court accept, application can be made orally.” (Underlining mine, for emphasis)
A ready situation of an oral challenge to the jurisdiction of a court in the face of a pending Motion for Joinder reared its beautiful head for judicial determination in the case of JAMES CHIBUEZE UNOKA & 2 ORS V. MRS. VICTORIA KANWULIA OFILI AGILI & 3 ORS (2007) 11 NWLR (Pt. 1044) 122 at pp. 146 – 147, paras. G – D, Ratio 10 (CA), and His Lordship, Honourable Justice Uwani Musa Abba Aji, JCA (as he then was), who read the Leading Judgment, declared thus:
“The learned trial Judge wrongly held that the 1st set of respondents have locus standi. It is now well settled that where a plaintiff has no locus standi, the court has no jurisdiction to entertain the action and same must be struck out. See Emmanuel C. Nwankwo v. Cecilia I. Nwankwo (1992) 4 NWLR (Pt. 238) 693 at 707; Austine O. Erebor v. Major & Company (Nig.) Ltd. & Anor. (2001) 5 NWLR (Pt. 706) 300 at 308.
The issue of jurisdiction has always been regarded as a threshold matter which can be raised at any stage of the proceedings as soon as the cause of the impairment of the court’s jurisdiction surfaces. In the instant case, the learned trial Judge ought to have held that the 1st set of respondents have no capacity to institute this action and he should have struck out the suit and not grant the application for joinder. See Emmanuel C. Nwankwo v. Cecilia I. Nwankwo (supra); Ndionyenma H. Nwankwo & Anor. V. Mrs. Ann C. Ononoeze-Madu & Ors. (2005) 4 NWLR (Pt. 916) 470 at 482.
It is now trite law that you cannot put something on nothing and expect it to stay there, it will collapse. See Macfoy v. United Africa Co. Ltd. (1961) 3 All E.R. 1169. The order for joinder cannot be made in a suit which is incompetent. The learned trial Judge by granting the application for joinder wrongly sought to validate the said suit by allowing the joinder of the 2nd set of respondents.
Based on the foregoing, this appeal is meritorious and it is hereby allowed. Consequently the ruling of the trial court delivered on 10/5/2004 is hereby set aside together with the order for joinder. The suit No. A/185/2002 is hereby struck out.” (Underlining mine, for emphasis)
This position is further augmented by the views of Honourable Justice Jean Omokri, JCA, in the case of NTOE ANDREW O. ANSA & 4 ORS V. THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA & 3 ORS (2008) 7 NWLR (Pt. 1086) 421 (CA) at p. 447, paras. A – C, Ratio 13. His Lordship, delivering the Leading Judgment, painstakingly commented thus:
“The conclusion I reach is that the lower court in the circumstances has no jurisdiction whatsoever in the subject matter before it. Issue No. 2, must be resolved in favour of the appellants.
Having reached the conclusion that the lower court has no jurisdiction to hear and determine the suit before it, it is unnecessary to proceed to consider issue 1, which relates to the joinder of the appellants as defendants/counter-claimants. If a court has no jurisdiction to hear and determine a suit, then a consideration of the question of joinder is an exercise in futility. Where a court hears a matter without jurisdiction, the proceeding however ably conducted will be a nullity. See Madukolu v. Nkemdilim & Ors. (supra); Nemi & Ors. V. The State (1994) 10 SCNJ 1; Reported as Ogugu v. State (1994) 9 NWLR (Pt. 366) 1; and Salati v. Shehu (1986) 1 NWLR (Pt. 15) 198.” (Underlining mine, for emphasis)
At page 447, paras. D – F of the above decision, His Lordship continued:
“The appellants have urged upon the court to order for their joinder as defendants/counter-claimants in a hearing before a proper court. This is an order that cannot be made by this court because the proceeding in the instant suit on appeal is a nullity. Where a court lacks jurisdiction, then it has no power to make orders affecting subsequent determination on the merit and it lacks power to exercise any power in relation to the suit. See Akinbobola v. Plisson Fisko (Nig.) Ltd. & 2 Ors. (1991) 1 SCNJ 258; (1991) 1 NWLR (Pt. 167) 270. Also in Charles Ejike & Ors. V. Nnakwesi Ifeadi & Ors. (1998) 6 SCNJ 87; (1998) 8 NWLR (Pt. 561) 323 it was held that lack of jurisdiction invalidates all proceedings including judgment or review of it on appeal. The duty of the court is to terminate proceedings before it. See Nemi & Ors. v. The State (1993) 2 SCNJ 139; Reported as Ogugu v. State (1994) 9 NWLR (Pt. 366) 1.” (Underlining mine, for emphasis)
Recently, the Penultimate Court, again, commented on the principle guiding the priority of hearing the competing applications mirrored in this work. Honourable Justice Belgore, JCA, expressing his views in the case of FABUNMI V. GOVERNOR OF EKITI STATE & ORS. (2018) LPELR – 45870 (CA) at p. 44, paras. A – B, held as follows:
“On issue Two, the Appellant has got it wrong. It is too elementary to start citing authorities, the fact that an application filed after taking argument in respect of Notice of Preliminary Objection and in respect of which ruling was adjourned to a definite date has to await that ruling, moreso, when the preliminary objection challenges the competence of the action and the jurisdiction of the Court concerned. Application for joinder of parties has no meaning in the face of the competence of the action and the jurisdiction of the Court being challenged.” (Underlining mine, for emphasis)
THE TWIST:
Not all issues presented by an applicant before the court as “jurisdictional issues” are actually jurisdictional issues. Some of them are notorious instances of mere irregularities that are mistaken for or brandished as jurisdictional issues. This reality places a court in the watchman role of sifting the jurisdictional grains from the chaff of procedural irregularities so as to ensure that a mountain is not made out of a mole hill. A ready example is a party raising the issue of the absence of a necessary party in a suit as a “jurisdictional issue” in a bid to terminate such a suit in limine. The Apex Court, speaking through Honourable Justice Ephraim Akpata, JSC, in the case of LEONARD OKOYE & 7 ORS V. NIGERIAN CONSTRUCTION & FURNITURE COMPANY LIMITED & 4 ORS (1991) 7 SCNJ 365 (Pt. II) at p. 384, para. 35, Ratio 8; p. 386, paras. 20 – 25, Ratios 9 – 10 (SC), disentangled and settled this necessary party – jurisdictional issue imbroglio in the following carefully selected words:
“…failure to join as a party a person who ought to have been joined will not render the proceedings 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 a nullity.” (Underlining mine, for emphasis)
Oddly enough, arguments of counsel are still laced with attempts to elevate irregularities to the enviable pedestal of “jurisdictional issues” in order to rob a court of competence and confer priority on a challenge to an irregularity. In the priority scenario in the case of KATAMI V. KATAMI (2018) LPELR – 46417 (CA), where the issue before the Penultimate Court was whether an application for joinder of necessary parties can be considered first before a Notice of Preliminary Objection where the Notice of Preliminary Objection is challenging the jurisdiction of the Court over the absence of necessary parties, Honourable Justice Fredrick Oho, JCA, [at pp. 13 – 21, paras. A – B of the said case] rightly rejected the call to confer jurisdictional toga and priority on the irregularity of not joining necessary parties, in the following words:
“It would be recalled that the reason for having this suit dismissed at the Court below was due to reasons of non-joinder of what the Court termed “necessary parties”. …. In the case of OKOYE & ORS. Vs. NIGERIAN CONSTRUCTION COMPANY LTD & ORS. (Supra) cited by learned Appellant’s Counsel, the Supreme Court, per Akpata, JSC, who delivered the lead judgment of the Court was of the view that the failure to join as a party a person who ought to have been joined will not render the proceedings a nullity on the ground of lack of competence or jurisdiction. …. In the instant case, what transpired at the Court below was that the Respondent upon noticing the absence of necessary parties in the Appellant’s suit went ahead and filed a Notice of Preliminary Objection, challenging the competence of the suit. …. Rather than therefore filing a counter affidavit and joining issues with the Respondent as Defendant on the hearing of the Notice of Preliminary Objection, what was tactically expected of Appellant as Plaintiff at that stage was to have quickly file a motion for the joinder of those necessary parties, in so far as the purpose of that motion would have been to rescue or salvage the suit from the destructive intentions of the Objections raised. The said Motion on Notice no doubt would have enjoyed the priority attention of the Court below so long as it is meant to save or revive the suit, while the Notice of Objection would have been the dismissal of the action. See RIRUWAI & ORS vs. SHEKARAU & 4 ORS. (2008) LPELR – 4898 CA; JULIUS BERGER NIGERIA PLC & ANOR. Vs. MRS. PHILOMENA UGO (2014) LPELR – 23152 CA and several other decided cases on the subject.”
Concluding his exposition in the above case, His Lordship held:
“The Court below therefore, having been allowed to go through the long haul of hearing the Preliminary Objection and deciding on its merit one way or the other, the fault and blames for the lower Court’s decision can only be left at the door steps of the Appellant, who rather than file the necessary processes for the joinder of all necessary parties instead preferred to join issues with the Respondent on the question of the Notice of Preliminary Objection filed. By allowing the Court below take the Notice of Objection, it amounted to the same thing as allowing the Court go into the hearing of the substantive suit with the parties as presently improperly constituted.”
CONCLUSION:
Necessary parties can only be joined and heard in a suit considered by a court to be competent. As a result, it is the hallowed duty of every court to give priority to a challenge to its jurisdiction, in the face of a pending Motion for Joinder of a party, regardless of which was filed or mentioned first.
Hence, once an objection or challenge to the jurisdiction of a court is raised orally, via a Motion on Notice or via a Notice of Preliminary Objection, the issue of joinder of a party has to take the back seat. This pride of place is ageless and indefeasible. As a matter of fact, it has been settled in a host of cases that a Motion on Notice seeking to terminate a Suit has the same effect as a Notice of Preliminary Objection. See the case of LAWSON V. OKORONKWO (2019) 3 NWLR (Pt. 1658) 66 (SC) and KALAGBOR V. INEC (2008) LPELR – 4387.
*David Andy Essien, Esq., is an Associate in the Law Firm of Usungurua Bassey & Associates, No.140 Atiku Abubakar Way, Uyo, Akwa Ibom State. He can be reached at davidandyessien@gmail.com. Twitter: @DavidAndyEssien
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