Joinder of Parties

Where a plaintiff has the necessary capacity and locus to bring an action and then brings it, failure to join a desirable party will not deprive him of his initial locus standi and then rob the Court of jurisdiction to entertain his action. See: Ekpere & Ors v. Aforije & Ors All NLR 220; Oloriede v. Oyebi(1984) 1 SCNLR 390.

The issue that arises is whether the suit before the trial Court was properly constituted, bearing in mind the fact that this is a pre-election matter. In the well known decision of this Court in Madukolu Vs Nkemdilim & Ors (1962) 2 ALL NLR 581 @ 589 this Court held that a Court is competent when:
"(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction."
In Okoye vs Nigerian Furniture Construction Co. Ltd. (1991) 22 NSCC (Pt.II) 422; (1991) 6 NWLR (Pt.199) 501 @ 532 B-E, this Court, relying on its decision in Madukolu vs Nkemdilim (supra) at page 596, held per Akpata, JSC, that the irregularity occasioned by the failure to join a necessary party in a suit may be so grave as to affect its fairness and the soundness of the adjudication, which may result in its being set aside on appeal. The unfairness in such circumstance infringes on the right to fair hearing of the party so excluded.

Strangely, the learned counsel avoided any argument or – even comment on the Respondent’s reliance on the provisions of Section 316 of CAMA which the Respondent argued made the Appellant’s parties on the facts in the suit. Firstly, the Appellants are parties in the suit by operation of law under Section 316 of CAMA (supra). Secondly, the two previous decisions of this Court referred by the learned counsel for the Appellants were not based on the provisions of Section 316 of CAMA. Thirdly, the Appellants are on the facts necessary parties without who the entire suit would be meaningless.
As laid down in several decisions by this Court and the Apex Court, from which I referred to the Apex Court’s decision in Azubuike vs.
PDP (supra) the questions to be answered before arriving at whether a party is a necessary party in a suit are: (a) Is the cause or matter liable to be defeated by the non-joinder? (b) Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant? (c) Is the 3rd party a person who should have been joined in the first instance? (d) Is the 3rd party a person whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter?
PER GAFAI, J.C.A.