(2018) LPELR-45175(CA)

Transcription

1 OBOT & ANOR v. OKPON & ORS CITATION: In the Court of Appeal In the Calabar Judicial Division Holden at Calabar CHIOMA EGONDU NWOSU-IHEME STEPHEN JONAH ADAH ON FRIDAY, 29TH JUNE, 2018 Suit No: CA/C/133/2014 Before Their Lordships: JOSEPH OLUBUNMI KAYODE OYEWOLE Between 1. MRS. PATRICIA JOSEPH OBOT 2. INSPECTOR SUNDARY FRANK UFI And 1. PRINCE JOSEPH EFFIONG OKPON 2. CHIEF SUNDAY ETIM AKPAN (1ST SET OF RESPONDENTS) AND 3. MR. SUNDAY UDO EKONG 4. ENGR. AUGUSTINE E. BASSEY 5. BARR. TONY BENSON (2ND SET OF RESPONDENTS) Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. ACTION - NECESSARY PARTY(IES): What makes a party a necessary party before the Court "The law is settled that it is only necessary parties that can be empanelled to constitute a case before the Court. In the case of BELLO VS. INEC & ORS. (2010) LPELR-767 (SC), The Supreme Court defined necessary parties and distinguish it from desirable party as follows:- In PEENOK VS. HOTEL PRESIDENTIAL (1983) NCLR 146, this Court considered the meaning of a necessary party in a case and referred to the opinion of DELVIN J. IN AMON VS. RAPHEAL TUCK & SONS LTD. (1956) 1 QB 380 where he said: Of Course, whatever the object, it is the words of the rule that now govern the matter and it is true that the words 'all the questions involved in the cause or matter' are very wide. They are so wide that no one suggests that they can be read with some limitation. The limitation is not something that is left to be settled by the Court in its discretion. It is there in the words of the rule, the person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is not, of course, merely that he has a relevant evidence to give on some of the questions involved; that would make him a necessary witness. It is not questions involved and has thought of some relevant arguments to advance and is afraid that the existing parties may not advance them adequately. That would mean that on the consideration of a clause in a common from contract many parties would claim to be heard, and if there were power to admit any, there is no principle of discretion by which some would be admitted and others refused. The Court might often think it convenient or desirable that some of such persons should be heard so that the Court should be sure that it had found a complete answer, but no one would suggest that it is necessary to hear them for that purpose. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be effectually and complete settled unless he is a party" (See AMON VS. RAPHAEL TUCK & SONS LTD. (1956) 1 QB 380)". Similarly, in GREEN (1987) 2 NSCC 1123, this Court discussed the meaning of "proper parties", desirable parties" and "necessary parties". This Court said: "A distinction must be drawn between the desirability of making a person a party and the necessity of making him one. In Settlement Corporation supra, it was held that joining a person as a party to proceedings did not arise merely because the relief sought in the cause or matter might affect someone who was not a party in respect of his rights at common law or in equity. In PEENOK VS. HOTEL PRESIDENTIAL (1983) 4 NCLR 122 this Court per Idigbe, JSC and Obaseki, JSC drew the necessary distinction between what it is desirable to do and what it is necessary to do and came to the conclusion that although it was desirable to join the Rivers State Government whose Edicts Nos. 15 and 17 were under attack, it was not necessary to join them before the Court could decide on the claims of the parties before it". Per Oguntade, JSC (pp , paras. E-F). This decision in short emphatically states the well known position of our law that the only reason why a person is made a party in a case is that he be bound by the decision in the case and that question to be resolved on the case is such that could not be resolved effectually and completely unless he is a party in the case."per ADAH, J.C.A. (Pp , Paras. D-D) - read in context

3 2. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Burden on an interested party who wishes to appeal against consent judgment "The parties on record at the Court below settled their dispute and had their terms of settlement filed in the Court and urged the Court to adopt it as the judgment in the case. As for the parties on record, there is no problem but the Appellant who was not a party on record applied to this Court to be given leave to appeal as an interested party. This leave was granted hence this appeal. When an interested party intercept a consent judgment and call for it to be upturned, the party has a duty to prove to the satisfaction of this Court that the judgment of the Court below wrongfully deprived them something that wrongfully refused them something of wrongly affected their title to something. He must show that he is truly aggrieved by virtue of the decision taken against his interest in his absence. See TABANSI-OKOYE VS. CHUBA-IKPEAZU & ORS. (2016) LPELR (CA)."Per ADAH, J.C.A. (Pp. 9-10, Paras. D-B) - read in context

4 3. JUDGMENT AND ORDER - CONSENT JUDGMENT: Nature of a consent judgment " A consent judgment is a judgment given after the parties to the case have agreed among themselves to have the claim resolved amicably and later file the terms of settlement in Court and urged on the Court to adopt it as the judgment of the Court. In AFEGBAI VS. A. G. EDO STATE & ANOR. (2001) LPELR-193 (SC). The Supreme Court per Karibi-Whyte, JSC held: "There is a consent judgment where parties to an action in Court have fashioned out an agreement as to how to settle their dispute out of Court and apply to the Court to give judgment on the terms they have agreed upon. Such judgment when given is called a judgment by consent and serves as a final determination of the dispute between the parties - see N.W.R.D.VS. JAIYESIMI (1963) 1 ALL NLR 215; (1963) 2 SCNLR 37. See also WOLUCHEM VS. WOKOMA (1974) 3 SC. 135; (1974) 1 ALL NLR 605 AT P A consent judgment is a final decision, since it finally determines the issues and dispute between the parties - see N.W.R.D. VS. JAIYESIMI (1963) 1 ALL NLR 215. It is a final decision within Section 241(1)(a) of the Constitution However, leave of the High Court or of the Court of Appeal is required for the exercise of a right of appeal. - See Section 241(2)(c) of the Constitution 1999". My Lord Muntaka-Coomassie, JSC in STAR PAPERMILL LTD. & ANOR. VS. ADETUNJI & ORS. (2009) LPELR (SC) explained the nature of consent judgment as follows: "...consent judgment, is a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the claim or claims pending before the Court. This is intended to put a stop to litigation between the parties just as such as a judgment which results from the decision of the Court. In the recent decision of this Court in RACE AUTO SUPPLY COMPANY LIMITED & ORS. VS. AKIB (2006) 6 SCNJ 98 or (2006) 6 SC P. 1. His Lordship Ogbuagu, JSC at pg. 17, defined what a consent judgment is as follows:- "It is a judgment entered, pursuant to an agreement between the parties. See WOLUCHEM VS. WOKOMA (1974) 3 SC 166. A consent thus by its nature, is first and foremost, a contractual agreement between the parties. Thus, a consent judgment constitutes a final judgment of the Court and it is only appealable with the leave of the Court. See OTUNBA OJORA VS. AGIP OIL PLC & ANOR. (2005) 4 NWLR (PT. 916) P Mohammed, JSC, in RACE AUTO SUPPLY COMPANY LTD. VS. AKIB (supra) stated the position beyond any doubt thus:- "In line with this definition, where the parties before a Court have agreed on how their dispute should be determined and ask the Court to enter judgment by consent and in accordance with their terms of settlement and the Court orders with their consent that judgment be entered, the product is a consent judgment. In this regard it is necessary to point out that a consent judgment or order is as effective in law in respect of all the matters which are herein settled as any other judgment or order arrived at after the matters are fully fought out, to the end in a full trial. As Lord Herschel L. C. Explained in the case of IN RE SOUTH AMERICA AND MEXICAN COMPANY EX PARTE BANK OF ENGLAND (1885) 1 CH. 50. "The truth is a judgment by consent is intended to put a stop to litigation between the parties just as much as is judgment which result from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgment and were to allow question that were really involved to the action to be fought over again in a subsequent action."per ADAH, J.C.A. (Pp. 6-9, Paras. C-D) - read in context

5 STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the consent judgment of the Akwa Ibom State High Court in Suit No. HU/144/2000 delivered on 13th day of May, 2013 by P. P. Idiong, J. The 1st and 2nd Respondents at the Court below took out a writ of summons along with the other Respondents against the 3rd Respondent. Others were on application joined by the Court below. The parties on record resorted to out-of- Court settlement which settlement was adopted as the judgment of the Court. By a motion filed at this Court on 25th October, 2013, the Appellants were granted leave to appeal as interested parties. The appeal was filed on 26th March, The record of appeal was compiled and transmitted on 10th March, It is indicative of the fact that the record was transmitted before the appeal was filed and there is no record of the record of appeal being regularized all through the hearing of this appeal. The Appellants brief was filed on 12th May, 2014 while the 1st and 2nd Respondents filed their Respondents brief on 30th October, Appellants reply brief was filed on 10th May,

6 At the hearing of the appeal, the learned counsel for the Appellants adopted his briefs and urged the Court to allow the appeal and set aside the decision of the Court below. The respondents also adopted their brief and urged the Court to dismiss this appeal. The Appellants in their brief raised two issues for consideration. These issues are: 1. Whether the consent judgment obtained by the Respondents which affects the rights of the Appellants was not obtained by fraud and misrepresentation, which makes the proper parties not to be before the Court, thereby robbing the Court of jurisdiction. 2. Whether the Appellants were given fair hearing in the suit which culminated to the consent judgment sought to be appealed against. The 1st and 2nd Respondents in their brief distilled also two issues worded as follows: (i) Whether the Appellants were not aware of the existence of Suit No. HU/144/2000 in the trial Court. (ii) Whether the Appellants were denied fair hearing in the said suit to warrant the setting aside of the consent judgment entered by the trial Court. 2

7 Although the issues raised by the parties are differently worded, the content is the same. The issues as worded by the Appellants do represent the complaint raised in the notice of appeal. These issues as raised by the Appellants are therefore adopted and set down for determination. ISSUE ONE This issue is whether the consent judgment was obtained by fraud in this case. The Appellants in their brief gave the particulars of fraud as follows: 1. As at the time the action was instituted/commenced, the Appellant were still and have been living on the land, but were not joined as owners or parties by the Plaintiffs in the lower Court. 2. The Notice of Action/decision of the lower Court were brought to the Appellants, via a Quit Notice dated the 29th March, 2013 by the Counsel to the Plaintiffs in lower Court, after judgment had been obtained behind them. 3. The lands in issue affected by decision of the lower Court sought to be appealed against is not limited to the areas the Defendants contested in the lower Court as presented by the Plaintiffs in the case. 4. The Vendor/Owner of the lands sold to the Appellants at different times before taking 3

8 occupation was equally not joined/sued by the Plaintiffs in the lower Court before his death in 2003 as the suit which culminated to the consent judgment was instituted/commenced in The learned counsel for the Appellants canvassed that the action of the 1st and 2nd Respondents avoiding the Appellants in the suit filed at the Court below was fraudulently motivated. That necessary parties were not made parties to their suit. He relied on the cases of ALAMIEYESEIGHA VS. TEIWA (2002) FWLR (PT. 96) 552; BAGWAI VS. GODA (2011) 7 NWLR (PT. 1245) 28 (CA); G. M. ENT. LTD. VS. C. R. INVESTMENT LTD. (2011) 14 NWLR (PT. 1266) 125 and BELLO VS. INEC (2010) NWLR (PT. 1196) 342. He urged the Court to resolve this issue in favour of the Appellants. The 1st and 2nd Respondents in their own brief canvassed that the Appellant had due knowledge of the existence of the suit but decided to continue standing by while the suit lasted in the trial Court. That the Appellants were caught by the vice of acquiescence. He relied on the case of KAYODE VS. ODUTOLA (2001) FWLR (PT. 57) 975. He submitted that the authorities of ALAMIEYESEIGHA 4

9 VS. TEIWA (2002) FWLR (PT. 96) 552; BAGWAI VS. GODA (2011) 7 NWLR (PT. 1245) 28; G. A. ENT. LTD. VS. C. R. INVESTMENT LTD. (2011) 14 NWLR (PT. 1266) 125 and BELLO VS. INEC (2010) NWLR (PT. 1196) 342 cited by the Appellants at page 8 of the Appellants brief of argument on the issue of a necessary party to a suit, do not apply to the instant appeal. That the point in the instant case is that the Appellants were aware of the suit in the trial Court, they requested for and participated in the initial negotiation for amicable settlement but subsequently back pedalled and failed/neglected to join with others as co-defendants to defend the suit as other did. He contended that it is the Appellants who lost and trampled on the opportunity to project their necessity in the determination of the case by the trial Court. That the Appellants therefore face the consequences of their act without any interference with the consent judgment. Counsel maintained that the Appellants were aware of the pendency of the suit at the trial Court. Appellants only decided to stand by throughout the proceedings. They were therefore not deprived of fair hearing. 5

10 The learned Counsel further relied on the case of DANA IMPEX LTD. VS. ADEROTOYE (2006) ALL FWLR (PT. 308) 1338 and canvassed that it is not sufficient to merely allege fraud particulars must be given. He submitted that the Appellants right to fair hearing was not contravened since he said they had the knowledge of the existence of the suit. He urged the Court to dismiss this appeal. In this appeal it is very clear that the judgment of the Court below was a consent judgment. A consent judgment is a judgment given after the parties to the case have agreed among themselves to have the claim resolved amicably and later file the terms of settlement in Court and urged on the Court to adopt it as the judgment of the Court. In AFEGBAI VS. A. G. EDO STATE & ANOR. (2001) LPELR-193 (SC). The Supreme Court per Karibi-Whyte, JSC held: There is a consent judgment where parties to an action in Court have fashioned out an agreement as to how to settle their dispute out of Court and apply to the Court to give judgment on the terms they have agreed upon. Such judgment when given is called a judgment by consent and serves as a final determination of the dispute between the parties 6

11 see N.W.R.D.VS. JAIYESIMI (1963) 1 ALL NLR 215; (1963) 2 SCNLR 37. See also WOLUCHEM VS. WOKOMA (1974) 3 SC. 135; (1974) 1 ALL NLR 605 AT P A consent judgment is a final decision, since it finally determines the issues and dispute between the parties see N.W.R.D. VS. JAIYESIMI (1963) 1 ALL NLR 215. It is a final decision within Section 241(1)(a) of the Constitution However, leave of the High Court or of the Court of Appeal is required for the exercise of a right of appeal. See Section 241(2)(c) of the Constitution My Lord Muntaka-Coomassie, JSC in STAR PAPERMILL LTD. & ANOR. VS. ADETUNJI & ORS. (2009) LPELR 3113 (SC) explained the nature of consent judgment as follows:...consent judgment, is a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the claim or claims pending before the Court. This is intended to put a stop to litigation between the parties just as such as a judgment which results from the decision of the Court. In the recent decision of this Court in RACE AUTO SUPPLY COMPANY 7

12 LIMITED & ORS. VS. AKIB (2006) 6 SCNJ 98 or (2006) 6 SC P. 1. His Lordship Ogbuagu, JSC at pg. 17, defined what a consent judgment is as follows:- It is a judgment entered, pursuant to an agreement between the parties. See WOLUCHEM VS. WOKOMA (1974) 3 SC 166. A consent thus by its nature, is first and foremost, a contractual agreement between the parties. Thus, a consent judgment constitutes a final judgment of the Court and it is only appealable with the leave of the Court. See OTUNBA OJORA VS. AGIP OIL PLC & ANOR. (2005) 4 NWLR (PT. 916) P Mohammed, JSC, in RACE AUTO SUPPLY COMPANY LTD. VS. AKIB (supra) stated the position beyond any doubt thus:- In line with this definition, where the parties before a Court have agreed on how their dispute should be determined and ask the Court to enter judgment by consent and in accordance with their terms of settlement and the Court orders with their consent that judgment be entered, the product is a consent judgment. In this regard it is necessary to point out that a consent judgment or order is as effective in law in respect of all the matters which 8

13 are herein settled as any other judgment or order arrived at after the matters are fully fought out, to the end in a full trial. As Lord Herschel L. C. Explained in the case of IN RE SOUTH AMERICA AND MEXICAN COMPANY EX PARTE BANK OF ENGLAND (1885) 1 CH. 50. The truth is a judgment by consent is intended to put a stop to litigation between the parties just as much as is judgment which result from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgment and were to allow question that were really involved to the action to be fought over again in a subsequent action. The parties on record at the Court below settled their dispute and had their terms of settlement filed in the Court and urged the Court to adopt it as the judgment in the case. As for the parties on record, there is no problem but the Appellant who was not a party on record applied to this Court to be given leave to appeal as an interested party. This leave was granted hence this appeal. When an interested party intercept a consent judgment and call for 9

14 it to be upturned, the party has a duty to prove to the satisfaction of this Court that the judgment of the Court below wrongfully deprived them something that wrongfully refused them something of wrongly affected their title to something. He must show that he is truly aggrieved by virtue of the decision taken against his interest in his absence. See TABANSI-OKOYE VS. CHUBA-IKPEAZU & ORS. (2016) LPELR (CA). In the instant appeal, the Appellants who secured the leave as interested parties as earlier pointed out in this judgment listed four particulars of fraud allegedly committed in this case. Of these particulars as earlier captured none placed before this Court the particulars of the entitlement of the Appellants to the land in issue which they said, they had been living in but were not joined as owners. The fact that the Appellants have been living on the land is not enough justification for them to be joined in any suit over the title to the land. They have not in this case shown their proprietary interest in the land as to make them adverse contenders to the land to justify their allegation that they are necessary parties to this claim. 10

15 It follows therefore that the consent judgment of the parties before the Court below cannot be said to be obtained by fraud. Issue one is therefore resolve in favour of the Respondents. ISSUE TWO Issue two is whether the Appellant were given fair hearing in this suit. The Appellant in his brief canvassed that the particulars of lack of fair hearing are two folds. These are: 1. The Appellants were not joined in the suit that culminated to the consent judgment sought to be appealed against despite their long stay in the area, (subject matter) more than a period of twenty (20) years through their lawful purchase of the properties. 2. The Appellants were not called as witnesses in the lower Court, but were only served with Quit Notices (Exhibits N & O ) respectively, upon having secured the consent judgment behind them. The learned counsel for the appellants canvassed that lack of fair hearing is a ground upon which a consent judgment can be set aside. He relied on the cases of VULCAN GASES LTD. VS. G. F. IND. A. G. (2001) 9 NWLR (PT. 719) 610, 620; TALABI VS. ADESEYE (1972) 8-9 SC 20; BAMGBOYE VS. 11

16 UNIVERSITY OF ILORIN (2001) FWLR (PT. 32) 12; NADABA NIG. LTD. VS. ORAKWE (2003) FWLR (PT. 171) 169/3; DUKE VS. GOVT. OF CROSS RIVER STATE (2013) VOL. 222 (PT. 1) LRCN, 90, 95; LEADERS & CO. LTD. VS. BAMAIYI (2011) VOL. 199 LRCN 185; and DEDUWA VS. OKORODUDU (1976) 9-10 SC 329. He urged the Court to allow the appeal. The 1st and 2nd Respondents in their brief responded to the argument of the Appellants and contended that the existence of the suit the subject matter of the consent judgment now sought to be set aside was not concealed from the Appellants. That it was indeed the Appellants who initially approached the 1st and 2nd Respondents at a time their identities were not known to the Appellants, and requested for an amicable settlement of the suit. That it was only when their respective terms were not acceptable to the 1st and 2nd Respondent that the Appellants withdrew from negotiation and agreed with the 4th and 5th Respondents to join as Defendants in the suit. That the 4th and 5th Respondents later settled finally with the 1st and 2nd Respondents and the consent judgment was entered on 15th May, That the Appellants cannot 12

17 now feign ignorance of the suit to enable them to appeal against the consent judgment. Learned counsel contended that the Appellants had due knowledge of the existence of the suit but decided to continue standing by while the suit lasted in the trial Court. He therefore submitted that the Appellants knowledge of the suit and participation in negotiation for amicable settlement thereof was sufficient foundation of responsibility for the Appellants to at least join as Defendants in the suit, in the same way as the 4th and 5th Respondents did, before the consent judgment was entered in the trial Court. The learned counsel relied on the cases of KAYODE VS. ODUTOLA (2001)FWLR (PT. 57) 975, 998; OGUNMOLA VS. KIDA (2002) FWLR (PT. 86) 559, ; and DANA IMPEX LTD. VS. ADEROTOYE (2006) ALL FWLR (PT. 308) He canvassed that there must be a strong case to be established before it will be used to set aside a consent judgment on allegation of fraud. He urged the Court to dismiss the appeal. In this appeal the complaint is principally along two lines. Firstly, that the Appellants who were interested and 13

18 necessary parties were excluded from the case at the Court below. That the Appellants by that exclusion had their right of fair hearing breached by the Court below by not allowing them to be heard in the case before a consent judgment was reached. From the record of appeal, the parties on the writ of summons of the Court below taken out on 14th April, 2000 in Suit No. HU/144/2000 were listed as follows:- BETWEEN 1. CHIEF BASSEY BROWN UTANG 2. CHIEF VALANTINE WILLIAM AKPAN - PLAINTIFFS 3. PRINCE JOSEPH EFFIONG OKPON 4. CHIEF SUNDAY ETIM AKPAN (for themselves and as representing respectively Nung Otuk, Nung Nyanga, Nung Atai and Nung Odongo, the 4 families owning the subject Matter of suit). AND MR. SUNDAY UDO EKONG - DEFENDANT The claim of the said Plaintiffs on record as endorsed on the writ reads as follows: The Plaintiffs are, respectively, the legal representatives of the families of Nung Otuk, Nung Nyanga, Nung Atai and Nung Odongo, the four families that jointly own a parcel of land situate and lying between Brook Street, Paul Bassey Street and Utank Street, Uyo Urban, within the jurisdiction of the Court.

19 14

20 The said land which was surveyed in the name of the 4 families above, in 1974, has since been jointly possessed, enjoyed and controlled by the four families as directed by to incumbent family heads from time to time, without let or hindrance. The Defendant is a member of Nung Atai family, one of the four families owning the said land. The Defendant without the consent or authority of the family heads (which manage the land) entered, trespassed and started constructing concrete buildings on part of the said land and further partitioned and sold out other portions of the said land to buyers, whose names are not immediately known. The said buyers will be joined as Defendants when their identities become known, with the leave of the Court. The rights of the Plaintiffs have been interfered with by the actions of the Defendant. WHEREFORE the Plaintiffs claim:- 1. A perpetual injunction restraining the Defendant by himself, his agents, purchasers from him and his assigns from further entry on the aforesaid land and in whatever manner whatsoever interfering with the Plaintiffs title, possession and rights over the said land. 15

21 2. A declaration that the Defendant is not entitled to the use, occupation or disposal of any portion of the said land without the consent or authorization of the family heads. 3. N500, general damages. At the end of the suit, the parties settled and filed their terms of settlement which formed the consent judgment. The learned trial judge in the consent judgment held at page 560 of the record of appeal as follows:- I am satisfied that the parties have settled the matter between them. They have also filed the terms of settlement thereof. Since it is their wish that the said terms of settlement entered as the judgment of this Court, it is hereby ordered that judgment be and is hereby entered in terms of the said settlement. Consequently, the land in dispute is hereby granted to the plaintiffs as the property of the 4 families of Nung Otuk, Nung Nyanga, Nung Atai and Nung Odongo of Akpayak Village in Uyo Local government Area of Akwa Ibom State. By the consent judgment, the land in contention was declared for the Plaintiffs as the property of the 4 families of Nung Otuk, Nung Nyanga, Nung Atai and Nung Odongo 16

22 of Akpayak Village in Uyo Local Government Area of Akwa Ibom State. The Appellants in their motion on notice filed on 25th October, 2013 in their application for leave to appeal as an interested party registered by the Registry as Appeal No. CA/C/319M/2013, relied on an affidavit deposed to by the 1st Appellant on that 25th October, In this affidavit the Appellants deposed at paragraphs 1-9 as follows:- I, MRS. PATRICIA JOSEPH OBOT, female, Christian, an indigene of Nung Ikot Itiam, Uyo Local Government Area of Akwa Ibom State of Nigeria, do hereby make oath and state as follows:- 1. That I am the above named deponent and by virtue of this fact conversant with the facts of this case. 2. That I have the consent of the 2nd Applicant to depose to this affidavit on his behalf in this application. 3. That I got married to my late husband, (Joseph Johnny Obot), who was from Etinan Local Government Area of Akwa Ibom State of Nigeria on 25th February, That after the solemnization of our marriage, we were residing at the said community in Etinan and later left to Lagos because of the engagement of my 17

23 late husband between That while in Lagos with my late husband, he saw the need for relocation and acquisition of a place to live at Uyo, hence communicated to his in-law, Mr. Sunday Eyo Etuk, the then Managing Director of Diamond Lodge of No. 9 Brooks Street, Uyo, to assist in the acquisition/purchase of a land for the purpose of building a house. 6. That my late husband s in-law aforesaid took up the responsibility and got a piece/parcel of land, lying and situated along 43B Paul Bassey Street, Uyo, and communicated same to my late husband. 7. That arising from the above, my late husband and his said in-law now approached the owner of the land Mr. Akpan Silas Eno, who is now late for the purchase of same, on terms agreeable by the parties. 8. That consequent upon the meeting and negotiation, late Akpan Silas Eno sold the 2 parcels/pieces of lands to my late husband at the sum of N30, (Thirty Thousand Naira) Only, in 1977, and N10, (Ten Thousand, Eight Hundred Naira) Only respectively. 9. That late Akpan Silas Eno was one of the principal members of Akpayak Village of the 4 families of Nung 18

24 Otuk, Nung Nyanga, Nung Atai and Nung Odongo, in Uyo Local Government Area of Akwa Ibom State of Nigeria on whose behalf the Plaintiffs in the lower Court represented in Court, who are the 1st sets of Respondents herein. By the 1st Appellant s deposition on oath, she is claiming title through one Mr. Akpan Silas Eno who she claimed is one of the principal members of the land owning families who are the Plaintiffs in this case at the Court below. By this claim of the 1st Appellant, the question to ask is whether the 1st Appellant would still claim to be a necessary party to this suit at the Court below in the suit between the Plaintiffs and an adverse party over the title to the land. The law is settled that it is only necessary parties that can be empanelled to constitute a case before the Court. In the case ofbello VS. INEC & ORS. (2010) LPELR-767 (SC), The Supreme Court defined necessary parties and distinguish it from desirable party as follows:- In PEENOK VS. HOTEL PRESIDENTIAL (1983) NCLR 146, this Court considered the meaning of a necessary party in a case and referred to the opinion of DELVIN 19

25 J. IN AMON VS. RAPHEAL TUCK & SONS LTD. (1956) 1 QB 380 where he said: Of Course, whatever the object, it is the words of the rule that now govern the matter and it is true that the words all the questions involved in the cause or matter are very wide. They are so wide that no one suggests that they can be read with some limitation. The limitation is not something that is left to be settled by the Court in its discretion. It is there in the words of the rule, the person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is not, of course, merely that he has a relevant evidence to give on some of the questions involved; that would make him a necessary witness. It is not questions involved and has thought of some relevant arguments to advance and is afraid that the existing parties may not advance them adequately. That would mean that on the consideration of a clause in a common from contract many parties would claim to be heard, and if there were power to admit any, there is no principle of discretion by which some would be admitted and others refused. The Court might often think it 20

26 convenient or desirable that some of such persons should be heard so that the Court should be sure that it had found a complete answer, but no one would suggest that it is necessary to hear them for that purpose. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be effectually and complete settled unless he is a party (See AMON VS. RAPHAEL TUCK & SONS LTD. (1956) 1 QB 380). Similarly, in GREEN (1987) 2 NSCC 1123, this Court discussed the meaning of proper parties, desirable parties and necessary parties. This Court said: A distinction must be drawn between the desirability of making a person a party and the necessity of making him one. In Settlement Corporation supra, it was held that joining a person as a party to proceedings did not arise merely because the relief sought in the cause or matter might affect someone who was not a party in respect of his rights at common law or in equity. In PEENOK VS. HOTEL PRESIDENTIAL (1983) 4 NCLR

27 this Court per Idigbe, JSC and Obaseki, JSC drew the necessary distinction between what it is desirable to do and what it is necessary to do and came to the conclusion that although it was desirable to join the Rivers State Government whose Edicts Nos. 15 and 17 were under attack, it was not necessary to join them before the Court could decide on the claims of the parties before it. Per Oguntade, JSC (pp , paras. E-F). This decision in short emphatically states the well known position of our law that the only reason why a person is made a party in a case is that he be bound by the decision in the case and that question to be resolved on the case is such that could not be resolved effectually and completely unless he is a party in the case. In the instant case, since the Appellants are deriving their title from one of the Plaintiffs, it so obvious that they are not necessary parties to the claim. If they are not necessary parties as it is in this case, their exclusion from the suit cannot be said to be fraudulent or against their fundamental right to fair hearing. It is to my mind excellently clear that the 2nd issue 22

28 raised must be resolved against the Appellant and in favour of the Respondents. This issue therefore is hereby resolved in favour of the Respondents. From the foregoing therefore, the Appellants have completely failed in this appeal. The appeal is hereby dismissed. The consent judgment of the Court below in Suit No. HU/144/2014 is hereby affirmed. Parties are to bear their respective costs. CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the privilege of reading in draft the lead judgment read by my learned brother, S. J. ADAH, JCA. I agree with his reasoning and conclusion therein and have nothing new to add. I abide by the order as to costs made by Adah, JCA in the lead judgment. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother STEPHEN JONAH ADAH, JCA and I totally endorse the reasoning and conclusions therein. 23

29 The Appellants failed most woefully to show that the consent judgment was in any way vitiated. For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I accordingly dismiss it. I adopt the consequential orders in the lead judgment. 24

30 Appearances: Udeme U. Rivers, Esq. For Appellant(s) Alex Umoh, Esq., for the 1st and 2nd Respondents For Respondent(s)