SOMIDE V OGANLA & ORS

SOMIDE V OGANLA & ORS


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON FRIDAY, 24TH FEBRUARY, 2017


Appeal No: CA/IB/345/2013
CITATION:

Before Their Lordships:

CHINWE EUGENIA IYIZOBA, JCA

HARUNA SIMON TSAMMANI, JCA

NONYEREM OKORONKWO, JCA


BETWEEN

PASTOR JOSEPH KEHINDE PHILLIPS SOMIDE

(FOR HIMSELF AND ON BEHALF OF LATE CHIEF KEHINDE PHILLIPS SOMIDE’S FAMILY.)

(APPELLANT)

AND

ALHAJI LASISI OLALERE OGANLA (MOGAJI OF OGANLA FAMILY)
MR. SAKA YESUFU OGANLA
(FOR THEMSELVES AND ON BEHALF OF OGANLA FAMILY)

(RESPONDENTS)


PRONOUNCEMENTS


A. ACTION
1. Parties to an Action – Whether a stranger to a dispute can be heard in the dispute

Whether a person who is not a party to a dispute cannot be heard in the dispute

“Having found as above, the next question is; whether the party sought to be joined was competent to file a Counter Affidavit opposing the Motion to join him in the proceedings?. The law is trite, that it need no citing of any authority that, a person who is not a party to a dispute cannot be heard in the dispute. The fact that he is a person interested in the outcome of the Suit is irrelevant. To secure the right to be given an opportunity to be heard, he must be specifically joined as a party to the dispute. In the instant case, the party sought to be joined was yet to be joined as a party nor any of the processes, including the Motion seeking to join him, served on him. He simply jumped into the fray, upon being shown the Motion seeking to have him joined in the matter. I am of the view that the filing of the Counter Affidavit in opposition to the Motion for joinder, was done in abuse of Court process. The fact that the Appellant responded to the Counter Affidavit is not material to the issue, as the Counter Affidavit for which he responded to was inappropriate and therefore incompetent.” Per TSAMMANI, JCA read in context

2. Joinder of Parties –

Whether a party sought to be joined is competent to file a Counter Affidavit opposing the Motion to join him in a proceeding

“Having found as above, the next question is; whether the party sought to be joined was competent to file a Counter Affidavit opposing the Motion to join him in the proceedings?. The law is trite, that it need no citing of any authority that, a person who is not a party to a dispute cannot be heard in the dispute. The fact that he is a person interested in the outcome of the Suit is irrelevant. To secure the right to be given an opportunity to be heard, he must be specifically joined as a party to the dispute. In the instant case, the party sought to be joined was yet to be joined as a party nor any of the processes, including the Motion seeking to join him, served on him. He simply jumped into the fray, upon being shown the Motion seeking to have him joined in the matter. I am of the view that the filing of the Counter Affidavit in opposition to the Motion for joinder, was done in abuse of Court process. The fact that the Appellant responded to the Counter Affidavit is not material to the issue, as the Counter Affidavit for which he responded to was inappropriate and therefore incompetent.

In any case, it is the law that, a party who wants to challenge the competence of a Suit, must file a Motion or Notice of Preliminary Objection stating the grounds upon which the objection is brought. See Abiodun v. A.G., of the Federation (2007) 15 NWLR (pt. 1057) p. 359. To do otherwise will be in breach of Order 22 Rule 1 of the Oyo State High Court (Civil Procedure) Rules, which has abolished demurrer. If a Party wishes to challenge the competence of the Suit on points of law, he has to comply with Order 22 Rule 2(1) & (2) of the High Court Rules of Oyo State (supra) which stipulate that:

“2. (1) Any party may by his pleading raise any point of law and the Judge may dispose of the point so raised before or at the trial
(2) If in the opinion of the Judge, the decision on such point of law substantially disposes of the whole proceedings or of any distinct point thereof, the Judge may make such decision as may be just.”

By these Rules therefore, it is required that before a party can raise a point of law and seek to have same disposed of before or at the trial, he must have filed his pleading and then raise the point of law therein. If the party raising the point of law is the Defendant, he must have filed his statement of defence. Even if the point of law is such that it can be raise without filing a Statement of Defence, such point of law must be raised by either filing a Motion on Notice or Notice of Preliminary Objection, praying the Court to strike out the claim and stating the grounds upon which such Motion or Notice is premised. See Ntuks & 9 Ors v. N.P.A (2007) 5 – 6 S.C. p.1 at 20 – 21 lines 5 – 30; Tabiowo v. Disu (2008) 7 NWLR (pt. 1087) p. 533 at 548 Paragraphs B – D per Galinje, JSC (as he then was);Liverpool and London Steamship Protection and Indemnity Association Ltd v. M.I.T Tuma & Ors (2011) LPELR – 8979 (CA); Railway Corp. Pension Fund v. Aina (1970) All N.L.R. p. 283;. In the case of Disu v. Ajilowura (2006) 14 NWLR (pt.100) p. 783, the Supreme Court per Mukhtar, JSC (as he then was) said:

“By Virtue of Rule 1 of Order 23 of the Lagos State High Court (Civil Procedure) Rules, supra, demurrer has been abolished, and so the course open to the Defendants would have been to file a Statement of Defence raising the objection.

His Lordship went on to put it clearly in the following words:

“Rule 2 of Order 23, supra, is as clear as crystal on the modality of raising an issue of law, which it states should be by pleadings, and the pertinent question to be asked is, if the Appellants failed to file a Statement of Defence stating their objection, would they be said to have adopted the correct modality?. I think not.”

It therefore remains settled that for a Defendant to validly raise a point of law which may have the effect of terminating the proceedings in limine, he must have filed a Statement of Defence. That is the stipulation in Order 22 Rule 2 of the Oyo State High Court (Civil Procedure) Rules (supra), which is in pari materia with Order 23 Rule 2 of the Lagos State High Court (Civil Procedure) Rules interpreted by the Supreme Court in Disu v. Ajilowura (supra). It is not in doubt that it is only a Defendant in the Suit that can file a Statement of Defence.” Per TSAMMANI, JCA read in context

3. Reliefs – Power of the Court to grant a relief not claimed

Whether the Court can grant a relief not claimed

“It is trite law, that no Court has the jurisdiction to give or grant to a party what the party did not ask for. This is based on the principle that a Court not being a Father Christmas cannot grant to a party a relief which he has not sought for or which is more than what he has claimed. See Eagle Super Pack (Nig.) Ltd v. A.C.R. Plc (2006) 19 NWLR (pt. 1013) p. 20; Ekpenyong v. Nyang (1975) 2 S.C. p. 71 at 81 – 82; The Nigerian Air Force v. Wing Commander T.I.A Shekete (2002) 18 NWLR (pt. 798) p. 129 and A.G; Federation v. A.I.C Ltd (2000) 10 NWLR (pt.675) p.293. Thus in the case ofThe Nigeria Air Force v. Shekete (supra), Niki Tobi, JSC (of blessed memory) held that:

“It is elementary law that a Court of law cannot grant an Applicant a prayer not sought. A Court can only grant a relief or prayer sought. The moment a Court grants a relief or prayer not sought by the party, it expands the boundaries of litigation and unnecessarily instigates more litigation to the detriment of the parties and for no reason at all. The litigation is for the parties and not the Court. Therefore the Court has no jurisdiction to extend or expand the boundaries of litigation beyond what the parties indicated to it. In other words, the Court has no jurisdiction to set up a different or new case for the parties.” Per TSAMMANI, JCA read in context

C. COURT
4. Raising Issues Suo Motu – Definition of the term “suo motu”

Meaning of the term “suo motu”

“In the case of Aigoro v. Commissioner of Lands and Housing (2011) LPELR – 9112, Denton – West, JCA stated that:
“The term suo motu means when a Judge raises an issue on his own Motion.”

Similarly, this Court, per Omoleye, JCA in Uzoho v. N.C.P (2007) All FWLR (pt. 394) p. 370 at

387 Paragraph G held that:

“The term “suo motu” means when a Judge raises an issue on his own Motion. Where an issue not in the contemplation of the parties and not before the Court is raised considered and concluded by the Court, the issue is said to have been raised.” Per TSAMMANI, JCA read in context

5. Court of Appeal – Conditions precedent to the exercise of the powers of the court of appeal

Conditions that must be met before the powers of a Court of Appeal can be exercised

“Now, learned Counsel for the Appellant had prayed this Court invoke Section 15 of the Court of Appeal Rules, Cap. 36, .F.N, 2004 to grant the application seeking to join Mr. Femi Talabi in the Suit. In determining whether or not to invoke the powers of this Court under Section 15 of the Court of Appeal Act (supra) in any given case, the Court must consider whether in the circumstances of the case, it will be just and proper to do so. In determining the issue, the Court must consider the following fundamental conditions, among other factors:

(a) Whether necessary materials are available for the consideration and determination in the matter.
(b) The length of time between the disposal of the action or application at the trial Court and the hearing of the Appeal must be taken into consideration.
(c) The interest of justice in eliminating further or eliminating unnecessary delay in the disposal of the appeal and the hardship the parties may suffer if the order is not granted.
For this see Ibori & Ors v. Federal Republic of Nigeria. (2011) LPELR-8769 (CA) per Sanusi, JCA (as he then was); and U.B.A. Plc v. BTL Industrial Ltd. (2005) 10 NWLR (pt. 933) p. 356 at 370. In the instant case, the Appellant has sufficiently disclosed in Paragraphs 3 and 4 of the Affidavit in Support of the Motion for joinder the reasons why he seeks to join Femi Talabi in the action. The Respondents on record did not file any Counter Affidavit in opposition. It should also be noted that the motion subject of this appeal was an interlocutory application. It therefore means that, hearing in the substantive matter has not started. As has been decided herein, this appeal is one that should be allowed and this will entail sending back the matter to the trial Court for hearing on the merit. Accordingly, if we do not invoke our powers under Section 15 of the Court of Appeal Act (supra) so as to grant the application for joinder, the matter may resurface again in the Court of first instance, thus further delaying the hearing and determination of the substantive matter. I am therefore of the view, that it will be in the interest of justice to accede to the request of learned counsel for the Appellant. Accordingly, in the exercise of the powers granted this Court under Section 15 of the Court of Appeal Act (supra), I hereby hold that the Application for joinder of Femi Talabi as a Defendant in the Suit, has merit. It is granted. In that respect, I order that: FEMI TALABI be and is hereby joined as a Defendant in this Suit.” Per TSAMMANI, JCA read in context

D. EVIDENCE
6. Estoppel Per Rem Judicatam/Res Judicata – Definition of estoppel per rem judicata
Meaning of estoppel per rem judicata

“Estoppel Per rem judicatam as a Principle of law operates to bar or preclude action or suits by Persons who had either directly or through predecessors in interest or privies had litigated over an issue or issues in which judicial decision is reached and pronounced and has not been set aside for example by appeal. In a subsequent proceedings by the parties or their privies or successors in interest, such previous proceedings could be raised in bar to preclude the subsequent action where the parties are the same and interest are the same.” Per OKORONKWO, JCA read in context


LEAD JUDGMENT DELIVERED BY TSAMMANI, JCA


This is an appeal against the Ruling of the Oyo State High Court of Justice, sitting at Ibadan; Coram: M. F. Oladeinde, J delivered on the 30th day of April, 2013 in Suit No: I/305/2009.

The Appellants on record were the Plaintiffs in the trial Court. By a Writ of Summons and Statement of Claim both dated the 2nd day of February, 2009 and filed on the 4th day of March, 2009, claimed against the Respondents as Defendants as follows:

(a) A declaration that the Plaintiff as successor-in-title to the late Chief P. K. Somide is entitled to the possession of the two large expanses of land measuring 9.789 Acres and 1588.70 Square Yards of land covered by the Conveyance Registered of No.14 at page 14 in Volume 1236 at the Land Registry, Ibadan, and particularly described and delineated by dispute Survey Plan No. OY/01/156/2008/002 dated 3/12/2008 drawn by Surveyor A. O. Adebogun.

(b) A perpetual injunction restraining the Defendants whether by themselves, their agents, servants, privies or otherwise so called from trespassing or further trespassing, alienating, developing, excavating, digging, leasing, cultivating in whatever form on the large expanses of land measuring 9.789 Acres and 1588.70 Square Yards of land covered by the Conveyance Registered of No.14 at page 14 in Volume 1236 at the Land Registry, Ibadan, and particularly described and delineated by dispute Survey Plan No. OY/01/156/2008/002 dated 3/12/2008 drawn by Surveyor A. O. Adebogun.

(c) An order restraining the Defendant /Respondents whether by themselves, their agents, servants, privies or otherwise so called from digging the pillars and excavating sand, sharp sand and gravel on the land in dispute situate, lying and being at Olasokun Village, Apata Area, Ibadan measuring 9.789 Acres and 1588.70 Square Yards of land covered by the Conveyance Registered of No.14 at page 14 in Volume 1236 at the Land Registry, Ibadan and particularly described and delineated by dispute Plan No. OY/01/156/2008/002 dated 3/12/2008 drawn by Surveyor A. O. Adebogun.

(d) An order restraining the Defendants/Respondents whether by themselves, their agents, servants, privies or otherwise so called from disturbing, constructing, obstructing or causing obstruction to the Plaintiff’s enjoyment of his interest, right and privileges on the large expanse of the land situate, lying and being at Olasokun Village, Apata Area, Ibadan measuring 9.789 Acres and 1588.70 Square Yards of land covered by the Conveyance Registered of No.14 at page 14 in Volume 1236 at the Land Registry, Ibadan, and particularly described and delineated by dispute Survey Plan No. OY/01/156/2008/002 dated 3/12/2008 drawn by Surveyor A. O. Adebogun.

The Respondents filed a Memorandum of Appearance on the 3/4/2009 and on the 14/4/2010, filed a Statement of Defence and Counter-Claim with Plan. The Respondents’ averments in Paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 17, 18 and 19, the effect of which is that the land had been sold to one Femi Talabi, led the Appellants to file a Motion on Notice on the 11/4/2011 praying the Court for:

“AN ORDER of this Honourable Court granting Leave to the Claimant/Applicant to join MR. FEMI TALABI as a Defendant in this suit.”

The said Motion was supported by an Affidavit of 5 paragraphs and Written Address. See pages 127 – 133 of the Record of Appeal. The party sought to be joined; Mr. Femi Talabi, filed a Counter-affidavit in opposition to the Plaintiff/Appellant’s Motion seeking to join him as a Defendant in the suit. The Counter-affidavit had annexed thereto some documents marked as exhibits; and was also supported by a Written Address. See pages 286 – 290 of the Record of Appeal. By Paragraphs 2(a) – (e) of the Counter-Affidavit, the said person sought to be joined, deposed as follows:

“2……………

(a) That the Plaintiff instituted a suit in respect of the same piece of Land in year 2006 in I/677/2006 and titled: Mr. Joseph Kehinde Phillips Somide (For and on behalf of late Chief Kehinde Phillip Somide Family AND Femi Talabi & 2 Ors which was heard by His Lordship Honourable Justice O. I. Aiki.

(b) That the said Suit referred to in (a) above was dismissed by his Lordship Honourable Justice O. I. Aiki on the 28th day of April, 2008 after evidence had been given. Herewith attached as Exhibit “A” is the Certified True Copy of the Ruling in I/677/06.

(c) That the said Suit was dismissed after witnesses have been called by the Claimant and there has been no Appeal up till this moment against the said Ruling in I/677/06.

(d) That if I am joined to this Suit, this Suit will be between the same parties and the same subject matter in I/677/06 which a Court of competent jurisdiction has decided upon.

(e) That the Application is vexatious and a ploy by the Claimant to re-open his case dismissed in I/677/06 before a Court of competent jurisdiction.”

The Plaintiff/Appellant responded to the Counter-Affidavit filed by the party sought to be joined by filing a Further-Affidavit to which were attached some documents, also marked as exhibits. The Further Affidavit was supported by a Written Address titled: “Reply To the Written Submission of the Counsel to the Party Seeking to be joined.” Thus, by a Ruling delivered on the 30/4/2013, the learned trial Judge dismissed the Plaintiff’s/Appellant’s Claims on the grounds that:

“…all the reliefs claimed by the Claimant in this Suit have been caught by the doctrine of “estoppel per rem judicatam and issue estoppel” and for that reason the Claimant are (sic) estopped from re-litigating and claiming reliefs sought in this Suit against the Defendants.”

The Appellant was unhappy with the decision of the trial Court and therefore filed this Appeal.

The Original Notice of Appeal which is at pages 340 – 344 of the Record of Appeal, was dated and filed on the 14/5/2013. It consisted of three (3) Grounds of Appeal. However, by Order of this Court made on the 14/11/2016, the Appellant filed an Amended Notice of Appeal also consisting three (3) Grounds of Appeal. The parties then filed and served Briefs of Arguments. The Appellant’s Brief of Arguments is the Amended Brief of Arguments dated and filed on the 15/11/2016. At page 6 of the said Brief of Arguments, the Appellant distilled three (3) issues for determination as follows:

1. Whether the Court below can grant an order or relief not sought for by parties to a Suit.

2. Whether the Court below can raise issue of estoppel Suo-motu and dismiss the Claimant’s Claims on a ruling for an application seeking to join a necessary party.

3. Whether considering the totality of the processes before the Court below, the learned trial Judge is just when he held that the ruling of Honourable Justice Aiki in Suit No. I/677/2006 constitutes a bar to the right of the Appellant to institute Suit No. I/305/2009.

The Respondents filed a Respondents’ Brief of Arguments. It was dated the 11/12/2016 and filed on the 14/12/2016. Therein, three (3) issues were also raised for determination as follows:

1. Whether the dismissal of the Claimant’s Suit by the Court below based on estoppel while considering an application for joinder is proper.
2. Whether the issue of estoppel was raised Suo motu by the Court below.

3. Whether the Ruling of the Honourable Justice Aiki in Suit No. I/677/2006 constitutes a bar to the right of the Appellant to institute Suit No. I/305/2009.

I have carefully studied the issues framed by the parties. After a careful consideration, I find that the issues raised by the parties are substantially similar. I however consider the issues framed by the Respondents to be more precise and better bring out the issues to be determined in this Appeal. On that score, I adopt the issues as raised by the Respondents for the purpose of determining this Appeal. I shall however, consider issues 1 and 2 together. I only need to add at this juncture that, the Appellant filed a Reply Brief. It was dated and filed on the 16/12/2016.

Now, arguing on issues 1 and 2, learned Counsel for the Appellants began by citing the case of Alhaji Muhammed Buhari Awodi & Anor v. Mallam Saliu Ajagbe (2015)
All FWLR (pt. 769) p. 1129 at 1144 to contend that a Court is bound to consider the reliefs sought before it by a party before making an order thereof. Furthermore, that a Court cannot grant a relief not sought. That in the instant case, the Respondents pleaded in Paragraphs 13, 15, 18 and 19 of their Statement of Defence and Counter-Claim, that they have sold the land in dispute to one Mr. Femi Talabi. That the Appellant therefore filed a Motion on Notice seeking to join the said Mr. Femi Talabi as a Defendant; and that the said Motion was duly served on the Defendants/Respondents. That instead of the Respondents responding to the Motion, the said Femi Talabi filed a Counter-Affidavit in opposition to the Claimant’s Motion seeking to join him in the Suit. That in the said Counter Affidavit, the party sought to be joined, deposed that it is in the interest of justice to dismiss the application. We were urged to note that, in the address in support of the Counter-Affidavit, learned Counsel urged the trial Court “to dismiss the application dated the 24th March, 2011.” Learned Counsel then contended that, it is clear that none of the parties urged the Court “to dismiss the Claimant’s Claim.”

Learned Counsel for the Appellant went on to contend that, the only application before the Court below, was the application dated 24th March, 2011. Furthermore, that there was no Preliminary Objection against the competence of the Suit to justify an outright dismissal of the Claimant’s Claims. It was therefore submitted that, the learned trial Judge made a case for the Defendants/Respondents. The cases of Federal Airport Authority of Nigeria & 2 Ors v. Greenstone Ltd & Anor (2009) All FWLR (pt. 500) p. 741 at 759 Parapgraph E; Oba Emmanuel Folorunsho Adedara & 5 Ors v. Chief Paul Idowu Arowolo & 5 Ors (2014) All F.W.L.R (pt. 761) p. 1536 at 1558 Paragraphs D – E were cited in support.

It was further contended by learned Counsel for the Appellant, that since the party sought to be joined was yet a party, he was never served with the Claimants Motion seeking to join him, filed on the 24/3/2011. The cases of Chief Gani Fawehinmi v. N.B.A. (No. 1) (2008) All FWLR (pt. 447) p. 1 at 58 Paragraphs E “ F and Uchendu & Ors v. Ogboni (1995) 5 NWLR (pt. 603) p. 337 at 352 “ 353 Paragraphs H “ B were then cited to submit that a party to an action is a person whose name is designated on record as either, a Plaintiff or a Defendant. We were therefore urged to hold that Mr. Femi Talabi having not been joined in the Suit, he could not file any Court process in the matter nor participate in the hearing of the Suit.

It was also contended that the Respondents on record, who were Defendants in the Court below, did not oppose the Motion for joinder as they neither filed any Counter-Affidavit nor raise objection to the grant of the Motion for joinder. It was then submitted that where there is no Counter-Affidavit challenging depositions in an Affidavit, the Court will treat the facts deposed in the Affidavit as having been established. The cases of Ajomale v. Yaduat (No.2) (1991) 5 NWLR (pt. 191) p. 257 at 282-283 Paragraphs H-A and Shell Petroleum Dev. Co. of Nigeria Ltd v. Lucky Esowe (2009) All FWLR (pt. 467) p. 120 at 132 Paragraph G, were also cited to submit that since the facts deposed to by the Appellant in support of his Motion of 24/3/2011 were neither controverted or challenged, the Court below ought to have granted the application. That, this is more so when the party sought to be joined cannot be heard in the application for joinder as he was yet a party in the suit at the hearing of the application for joinder.

Learned Counsel for the Appellant then urged us to apply Section 15 of the Court of Appeal Act, Cap. C.36, Laws of the Federation of Nigeria, 2004, so as to exercise the powers of the lower Court in granting the application. The cases ofU.B.A. v. Fajebe Foods & Poultry Farmers (1994) 5 NMLR (pt. 344) p. 325; Chief Igiehon v. Omoregie (1993) 2 NWLR (pt. 276) p. 396 and Inakoju v. Adeleke (2007) All FWLR (pt. 353) p. 3 at 105 Paragraphs D – E were also cited to submit that Section 15 of the Court of Appeal Act (supra) has conferred wide powers on this Court to deal with the case as the Court of first instance would have done.

Learned Counsel for the Appellant went on to argue, as his issue two, that the Appellants application of 24/3/2011 was the only application before the Court and learned Counsel for the Respondents, who also represented the party sought to be joined filed a Written Address in which he raised two issues. That in raising those issues, the party sought to be joined relied on a Ruling of the High Court delivered by Hon. Justice O. I. Aiki in Suit No. I/677/2006 in contending that, the Ruling in I/677/2006 constitute a bar to the grant of the application for joinder. That Ruling on the application, the learned trial Judge raised the issues, inter alia, Whether the Claimants claim have been caught by the doctrine of estoppel per rem judicatam?, Suo motu. That the parties were not given opportunity to address the Court on it.

It was therefore submitted that, from the Ruling of the trial Court as gleaned from the printed record, and particularly at pages 338 – 339 thereof, the Court below did not pronounce on the application for joinder which was pending before him, but proceeded to suo motu raise the issue of estoppel per rem judicatam. That the learned trial Judge in resolving the issue raised suo motu by him, proceeded to review the pleadings of the parties and then concluded by dismissing the Appellant’s suit without any application to that effect by any of the Respondents nor even the party sought to be joined. The case of Shell Petroleum Dev. Co, (Nig.) Ltd v. Lucky Esowe (supra) was then cited to submit that a Court of law cannot determine an issue that is not placed before it. The cases of Raphael Ejezie & Anor v. Ihejekpo Nwabueze & Ors (2008) All FWLR (pt. 422) p.1005 at 1009 and Chief Kafaru Oje & Ors v. Chief Ganiyu Babalola & Ors (1991) 4 NWLR (pt. 185) p. 267 at 280 were then cited in support, and to urge us to set aside the Ruling of the trial Court and remit the case to the Court below, to be tried by another Judge.

In response, learned counsel for the Respondents argued his issues 1 and 2 together. Therein, it was contended that, before the application for joinder was filed, the Respondents had filed their Statement of Defence and Counter-Claim wherein they raised in Paragraph 18 a plea of estoppel per rem judicatam. That, the party sought to be joined also filed a Counter Affidavit to the Motion of the Appellants for joinder together with a Written Address raising the issue of estoppel based on Suit No: I/677/2006. That, the Appellant filed a Further Affidavit in response to the Counter Affidavit filed by the party sought to be joined. That at page 321 of the Record of Appeal, learned counsel recognized the fact that the Respondents raised the issue of estoppel and copiously addressed the Court on it. Learned Counsel then submitted that contrary to the contention of the Appellant, the issue of estoppel per rem judicatam was not raised suo motu by the learned trial Judge. That estoppel was a live issue in the litigation and the parties did address on it. The case of Effiom v. C.R.O.S.I.E.C. (2010) All FWLR (pt. 552) p.1610 at 1634 Paragraphs E – G was cited in support.

Learned Counsel for the Appellant went on to submit that the issue of estoppel per rem judicatam is an issue of jurisdiction which can even be raised suo motu by the trial Judge. The case of Oshodi v. Eyifunmi (2000) FWLR (pt. 8) p. 1271 at 1299 Paragraphs B – C was cited in support. The case of A.N.P.P. v. I.N.E.C. (2005) All FWLR (pt. 254) p. 971 at 990 was then referred to in contending that the issue of estoppel per rem judicatam need not be raised by Motion, and that once it is raised in the various processes filed by the parties, the trial Court will be in a position to determine the issue. That the issue of estoppel having been raised by the Respondents and reacted to by the Appellant, it was proper for the learned trial Judge to have considered same. The cases of Ajayi v. Adebiyi (2013) 3 W.R.N. p.1 at 41

Paragraphs 20 – 25 and Dennis Akoma & 1 Or. V. Obi Osenwokwu (2015) All FWLR (pt. 784) p. 27 at 53 Paragraph A, were cited in support.

The case of Anyanwu v. Ogenewe (2014) All FWLR (pt. 738) p. 1012 at 1044 Paragraph F was also cited to further submit that, contrary to the contention of the Appellant, the learned trial Judge did not make a case for the Respondents and the party sought to be joined in view of the fact that the issue of estoppel per rem judicatam was raised and argued by both parties at the lower Court. That even if the jurisdictional issue of estoppel per rem judicatam was not properly raised, it was proper for the trial Court to have determined the issue before taking any further step in the matter. That since it is a matter of jurisdiction, it was proper for the Court to consider same, even though raised in an application for joinder. The case of Samchase (Nig.) Ltd v. Gidado (2014) All FWLR (pt. 760) p.1302 at 1325 Paragraph E was also cited in support. Section 16 of the Oyo State High Court Law, Cap. 55 Laws of Oyo State, 2000 was also cited to stress that the dismissal of the Appellant’s case based on estoppel while considering an application for joinder was proper, as the issue was not raised suo motu by the trial Court.

On the issue that the party sought to be joined was not yet a party at the time the application for joinder was made and heard, learned counsel for the Respondent referred to Section 2 of the Oyo State High Court Laws (supra), to submit that having put the name of the said Femi Talabi on the Motion, the said Femi Talabi was a party. Furthermore, that the Oyo State High Court (Civil Procedure) Rules, 2010 recognizes that a person sought to be joined is a party. Order 13 Rule 16(3) of the High Court Rules (supra) was cited and relied on. He then cited the case of Balogun v. Afolayan (2001) 45 W.R.N. p.48 at 65 Paragraph 5 to submit that, Mr. Femi Talabi is a party to both the application for joinder and the suit, and was there competent to depose to the Counter-Affidavit to oppose the Motion for joinder. That, in any case, the party sought to be joined deposed to a Counter Affidavit opposing the Motion for joinder and the Appellant took steps by filing a Further Affidavit without challenging the capacity or competence of the party sought to be joined to depose to the said Counter-Affidavit, he is bound by the decision of the trial Court. Consequently, we were urged to resolve the issues against the Appellant.

Replying on points of law, learned counsel for the Appellant contended that the case of B.A.T.L. Ltd v. International Tobacco Co. Plc (2013) 6 W.R.N. p. 26 Paragraph 45 is not apposite to the facts of this case. He then cited the case of Chief Abusi David Green v. Chief Dr. E. T. Dublin Green ( 1) FWLR (pt. 76) p. 795 at 813 Paragraph C to contend that the definition of ‘party’ given by the Respondent’s counsel was done to mislead this Court. He then referred to Section 2 of the High Court Law, Cap. 55, Laws of Oyo State, 2000, which define “a party”, “Plaintiff” and “Defendant”, to urge us to hold that the “party to be joined” having not been served any of the Court processes nor joined by the order of Court cannot be regarded as a party, as laid down in the case of Green v. Green (supra). That in the circumstances, the party sought to be joined cannot depose to an Affidavit objecting to his joinder. That, even the Respondents’ counsel, in Paragraph 4.39 of the Respondents’ Brief recognized the fact that an order of the Court is imperative before the name of a party whose presence is necessary in a suit can be added.

Learned Counsel for the Appellant also submitted that the cases of Oshodi v. Eyifunmi (2000) FWLR (pt. 8) p. 1271 at 1299 and Anyanwu v. Ogunnewe (2014) All FWLR (pt. 738) p. 1012 at 1044 are not apposite to the facts of this case because, the party sought to be joined had not been served any of the processes of Court and so had not filed any defence wherein he raised the special defence of res judicata. That such a defence cannot be raise in a Counter Affidavit or the Written Address of counsel. The case of Madam Adepeju Florence Adedeji v. Hon. Jacob Adewale Fatoyinbo & Anor (2014) All FWLR (pt. 732) p. 1792 at 1810 Paragraphs A – C was also cited in support. We were urged to hold that the issue of estoppel cannot be raised by a person who is not a party to the suit. That the Court cannot determine the issue at the behest of a person without such a person being joined as a party.

It was also contended that the case Erohini v. Ihenko (supra) relied on by the Respondents is not apposite to the case at hand. We were then urged to hold that the registered conveyance which is the fulcrum of the Appellant’s claim in Suit No: I/303/2009 had not been set aside. That the rights of the parties on the land in dispute cannot therefore, be said to have been finally determined by the Ruling in I/677/2006. The case of Osiegbemeh v. Egbagbe (2014) All FWLR (pt. 744) p. 58 at 83

Paragraphs A – E was then cited to submit that the conditions precedent to the applicability of the plea of res judicata had not been satisfied. We were accordingly urged to hold that the Ruling in I/677/2006 does not constitute estoppel per rem judicatam.

Now, from the facts of this case as depicted on the printed record, the Appellant simultaneously filed a Writ of Summons and a Statement of Claim, wherein he made certain claims in respect of certain parcels of land registered as No.14 at page 14 in Volume 1236 at the Land Registry, Ibadan, Oyo State. The claim is against the two Respondents, “(For Themselves and on Behalf of Oganla Family).” The Respondents filed a Statement of Defence and Counter-Claim with Plan. In the said Statement of Defence, the Respondents by their Paragraphs 8, 11, 12, 13, 14, 15, 17, 18 and 19, introduced the interest of one Femi Talabi on the land in dispute; the summary of which is that they (Respondents) had alienated the land to the said Femi Talabi and therefore had no more interest in the land in dispute. It was based on those pleadings of the Respondents, that learned counsel for the Appellant, in his wisdom, decided to filed a Motion on Notice seeking:

“AN ORDER of this Honourable Court granting leave to the Claimant/Applicant to join MR. FEMI TALABI as a Defendant in this Suit.”

The Motion was supported by an Affidavit of 5 paragraphs wherein the Appellant as Applicant specifically deposed in Paragraphs 3 and 4 as follows:

“3. That the Claimant/Applicant, Pastor Joseph Kehinde Phillips Somide, informed me at my principal’s office on 19-11-2010 at about 9.am and I very believed him as follows:

(a) That on 11-11-2010, he was at Lasokun Village, Apata, Ibadan where the land in dispute in this matter is situate and that he noticed that one Alhaji Adedigba was carrying out construction of a block making factory on the said land.

(b) That he enquiry (sic) from the said Alhaji Adedigba on where he derived his title from and he informed him that a matter on the title of the land is pending before this Honourable Court.

(c) That the said Alhaji Adedigba informed him that one Femi Talabi sold the parcel of land on which he was constructing structure on, to him.

(d) That he also noticed that some other part of the land were being developed by several people and upon further enquiry, he was informed that the said parcel of land was also sold by same Femi Talabi during the pendency of this matter.

(e) That the said Mr. Femi Talabi was referred to in Paragraphs 13, 15, 18 and 19 of the Statement of Defence of the Defendants filed on 14-04-2010 in this matter as the person the Defendants’ family purportedly sold the land in dispute to.

(f) That the said Mr. Femi Talabi has since being (sic) selling off part of the land in dispute in spite of the pendency of this matter.

4: That Akinsumbo Akande; Esq, Solicitor to the Applicant informed me on 23-11-2010 and I verily believed him that:
(i) That the said Mr. Femi Talabi is a necessary party in this matter.
(ii) That this Honourable Court is empowered to grant this application.
(iii) That it is in the interest of justice to grant this application.”

It is obvious on the body of the Record of Appeal, that the Defendants/Respondents on record did not file any Counter-Affidavit in opposition to the Appellants Motion for joinder. However, the said person sought to be joined, Mr. Femi Talabi filed a Counter Affidavit of 4 paragraphs wherein he personally and specifically deposed in Paragraph 2 of the said Counter-Affidavit as follows:

“2. That the Motion on Notice dated 24th March, 2011 with the accompanying Affidavit has been shown to me and I hereby deny Paragraph 3(a), (b), (c), (d), (e) and F and 4(i), (ii), (iii) and 5 of the Affidavit in Support and I further add the following facts as follows:-

(a) That the Plaintiff instituted a Suit in respect of the same piece of Land in year 2006 in I/677/2006 and titled Mr. Joseph Kehinde Phillips Somide (For and on behalf of late Chief Kehinde Phillip Somide Family). And Femi Talabi & 2 Ors which was heard by His Lordship, Justice O. I. Aiki.

(b) That the said Suit referred to in (a) above was dismissed by his Lordship, Honourable Justice O. I. Aiki on the 28th day of April, 2008 after evidence had been given. Herewith attached as Exhibit ‘A’ is the Certified True Copy of the Ruling in I/677/06.

(c) That the said Suit was dismissed after witnesses have been called by the Claimant and there has been no Appeal up till this moment against the said Ruling in I/677/2006.

(d) That if I am joined in this Suit, this Suit will be between the same parties and the same subject matter in I/677/06 which a Court of competent jurisdiction has decided upon.

(e) That the Application is vexatious and a ploy by the Claimant to reopen his case dismissed in I/677/06 before a Court of competent jurisdiction.”

It is clear to me, that the above depositions of Mr. Femi Talabi, who is the Party Sought to be joined in the Suit, had raised the issue of estoppel per rem judicatam, based on an earlier Ruling of the Oyo State High Court delivered by Hon. Justice O. I. Aiki on the 28th day of April, 2008 in Suit No. I/677/2006. The said judgment was annexed to the Counter Affidavit as Exhibit “A”. It is instructive to note, that the Appellant herein, responded to the Counter-Affidavit of the person sought to be joined by filing a “Further Affidavit” of 10 paragraphs together with a Written Address titled “REPLY TO THE WRITTEN SUBMISSION OF THE COUNSEL TO THE PARTY SEEKING TO BE JOINED”. The said Written Address responded to the submissions raised by learned counsel in the Written Address of the Party Sought to be joined.

Based on the recapitulation of the facts leading to the decision of the trial Court, it is certain to me that the issue of estoppel per rem judicatam was not raised suo motu by the learned trial Judge. In the case of Aigoro v. Commissioner of Lands and Housing (2011) LPELR – 9112, Denton –West, JCA stated that:

“The term suo motu means when a Judge raises an issue on his own Motion.”

Similarly, this Court, per Omoleye, JCA in Uzoho v. N.C.P (2007) All FWLR (pt. 394) p. 370 at 387 Paragraph G held that:

“The term “suo motu” means when a Judge raises an issue on his own Motion . Where an issue not in the contemplation of the parties and not before the Court is raised considered and concluded by the Court, the issue is said to have been raised.”

In the instant case, it is my view that the learned trial Judge did not raise the issue of res judicata suo motu. Same was raised by Party Sought to be joined in his Counter Affidavit and canvassed in the Written Address filed by learned Counsel. The Appellant responded to it by his Further Affidavit and in the Written Address in Support of the Further Affidavit. The learned trial Judge countenanced and ruled on same. I therefore hold that the issue of estoppel per rem judicatam was not raised by the learned trial Judge suo motu.

The issue to be considered now is whether the issue of estoppel per rem jusdicatam was properly raised pursuant to the Appellant’s Motion for Joinder dated the 24/3/2011 and filed on the 11/4/2011. At the time the Motion was filed, the only Defendants on record were the Respondents herein: Alhaji Lasisi Olalere Ogunla and Mr. Saka Yesufu Oganla. There is no disputing the fact that Mr. Femi Talabi, who is the person sought to be joined by the Appellants as a 3rd Defendant was not a party. The question of who is a party in a Suit or other proceeding is one which has received judicial pronouncement in several cases. Thus in the case of Fawehinmi v. N.B.A (No.1) (1989) 2 NWLR (pt.105) p. 494 at 550 -551, Oputa, JSC (of blessed memory) said:

“In Black’s Law Dictionary 5th Edition p.1010:- A party to an action is a person whose name is designated on record as Plaintiff or Defendant… “Party is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a legal Suit is brought, whether in law or in equity.” Black then draws the necessary distinction between a party and a person interested thus:- “A party is either a Plaintiff or Defendant whether composed of one or more individuals and whether natural or legal persons all others who may be affected by the Suit, indirectly or consequently are persons interested but not parties.”

The above cited decision was adopted and applied by My Lord, Ogunbiyi, JSC in the case of Odedo v. PDP & Ors

(2015) LPELR-24738 (SC). See alsoAkindele v. Abiodun (2008) LPELR – 8557 (CA). A party is therefore a person whose name is designated on the record as either Plaintiff or Defendant. Thus Adekeye, JSC in Bello v. INEC (2010) 10 NWLR (pt. 1196) p. 342 stated that:

“A party to an action is a person whose name is designated on record as Plaintiff or Defendant; the term party refers to that persons by or against whom a legal Suit is Sought whether natural or legal persons but all others who may be affected by the Suit indirectly or consequently are persons interested.”

From the above definitions, it is obvious that, in law, a party in a Suit refers to persons whose names appear on the record either as a Plaintiff or a Defendant. See Green v. Green (1987) N.S.C.C. p. 115 at 121. That is the appropriate and logical meaning this Court can give to the term “party” within the context of this matter. Certainly, a person may be a person interested in the outcome of the proceedings or litigation, so long as he has not been properly recognized and listed on the body of the processes filed in Court, he is not “a party.” It is in that context that I hereby hold that the Party sought to be joined, to wit: Mr. Femi Talabi was not a party in Suit No. I/305/2009. Certainly, by the pleadings in the Statement of Defence, it would appear that he was “a party interested,” but he was yet to be a party as recognized by law. That is why the Appellant applied for the leave of Court to join him. Since the order of the Court below had not been made, it cannot be said that he was a party on record. That is why he had not been served with any of the processes filed in Court nor had he been served with any Notice to attend the proceedings.

Having found as above, the next question is; whether the party sought to be joined was competent to file a Counter Affidavit opposing the Motion to join him in the proceedings?. The law is trite, that it need no citing of any authority that, a person who is not a party to a dispute cannot be heard in the dispute. The fact that he is a person interested in the outcome of the Suit is irrelevant. To secure the right to be given an opportunity to be heard, he must be specifically joined as a party to the dispute. In the instant case, the party sought to be joined was yet to be joined as a party nor any of the processes, including the Motion seeking to join him, served on him. He simply jumped into the fray, upon being shown the Motion seeking to have him joined in the matter. I am of the view that the filing of the Counter Affidavit in opposition to the Motion for joinder, was done in abuse of Court process. The fact that the Appellant responded to the Counter Affidavit is not material to the issue, as the Counter Affidavit for which he responded to was inappropriate and therefore incompetent. In any case, it is the law that, a party who wants to challenge the competence of a Suit, must file a Motion or Notice of Preliminary Objection stating the grounds upon which the objection is brought. See Abiodun v A.G., of the Federation (2007) 15 NWLR (pt. 1057) p. 359. To do otherwise will be in breach of Order 22 Rule 1 of the Oyo State High Court (Civil Procedure) Rules, which has abolished demurrer. If a Party wishes to challenge the competence of the Suit on points of law, he has to comply with Order 22 Rule 2(1) & (2) of the High Court Rules of Oyo State (supra) which stipulate that:

“2. (1) Any party may by his pleading raise any point of law and the Judge may dispose of the point so raised before or at the trial

(2) If in the opinion of the Judge, the decision on such point of law substantially disposes of the whole proceedings or of any distinct point thereof, the Judge may make such decision as may be just.”

By these Rules therefore, it is required that before a party can raise a point of law and seek to have same disposed of before or at the trial, he must have filed his pleading and then raise the point of law therein. If the party raising the point of law is the Defendant, he must have filed his statement of defence. Even if the point of law is such that it can be raise without filing a Statement of Defence, such point of law must be raised by either filing a Motion on Notice or Notice of Preliminary Objection, praying the Court to strike out the claim and stating the grounds upon which such Motion or Notice is premised. See Ntuks & 9 Ors v. N.P.A (2007) 5 – 6 S.C. p.1 at 20 – 21 lines 5 – 30; Tabiowo v. Disu (2008) 7 NWLR (pt. 1087) p. 533 at 548 Paragraphs B – D per Galinje, JSC (as he then was);Liverpool and London Steamship Protection and Indemnity Association Ltd v. M.I.T Tuma & Ors (2011) LPELR – 8979 (CA); Railway Corp. Pension Fund v. Aina (1970) All N.L.R. p. 283;. In the case of Disu v. Ajilowura (2006) 14 NWLR (pt.100) p. 783, the Supreme Court per Mukhtar, JSC (as he then was) said:

“By Virtue of Rule 1 of Order 23 of the Lagos State High Court (Civil Procedure) Rules, supra, demurrer has been abolished, and so the course open to the Defendants would have been to file a Statement of Defence raising the objection.

His Lordship went on to put it clearly in the following words:

“Rule 2 of Order 23, supra, is as clear as crystal on the modality of raising an issue of law, which it states should be by pleadings, and the pertinent question to be asked is, if the Appellants failed to file a Statement of Defence stating their objection, would they be said to have adopted the correct modality?. I think not.”

It therefore remains settled that for a Defendant to validly raise a point of law which may have the effect of terminating the proceedings in limine, he must have filed a Statement of Defence. That is the stipulation in Order 22 Rule 2 of the Oyo State High Court (Civil Procedure) Rules (supra), which is in pari materia with Order 23 Rule 2 of the Lagos State High Court (Civil Procedure) Rules interpreted by the Supreme Court in Disu v. Ajilowura (supra). It is not in doubt that it is only a Defendant in the Suit that can file a Statement of Defence. In the instant case, the Party to be joined who raised the issue of law was not yet a party at the time he filed his Counter Affidavit to the Motion for joinder. Furthermore, it cannot by any imagination, be said that the said Counter Affidavit was a Motion or could it be reckoned with as a Statement of Defence. I therefore hold that the correct modality or procedure was not followed in raising the issue of estoppel per rem judicatam.

Accordingly, I hold the view that the party sought to be joined should have waited till he is properly joined in the Suit, then he could file a Statement of Defence raising the issue of res judicata. A Motion would then have been filed by him, seeking the Court to set down the issue to be determined in limine. The party to be joined therefore jumped the gun by taking the step he took, and the learned trial Judge erred in allowing himself to be hoodwinked into permitting that step.

I wish to also observe that the issue of res judicata was equally raised by the Respondents on record in their Statement of Defence based on the same judgment relied upon by the party sought to be joined. The learned trial Judge was under a duty to take judicial notice of that fact, and also of all processes filed before him in respect of the Suit. If he had taken judicial notice as recommended above, he would have exercised his discretion wisely by ensuring that the pleadings before him had crystalised before the issue of law raised by the party sought to be joined could be tabled before him at that stage. Indeed wise counsel would have required that the Motion for joinder be granted, especially when the Respondents on record did not file any Counter Affidavit. The party sought to be joined would then be joined in the suit as a third (3rd) Defendant, and then directed to file his Statement of Defence raising therein the issue of estoppels per rem judicatam, if he so desired. I therefore hold that the issue of res judicata was prematurely raised and determined at the instance of the party sought to be joined.

I also wish to observe that the party sought to be joined never asked that the Claimant’s Claim or Suit before the Court be dismissed. It is obvious that the entire Counter Affidavit of the party sought to be joined, was intended to counter the Motion for joinder dated the 24/3/2011 and filed on the 11/4/2011. That is why the prayer of the party sought to be joined in aragraph 3 of the Counter Affidavit was that:-

“.. it is in the interest of justice to dismiss this Application.”

Furthermore, the issue raised by learned counsel for the party sought to be joined in respect of the Motion for Joinder was;

“Whether Femi Talabi, the party sought to be joined can be made a party in view of the order of dismissal of the Claimant’s case against the said Femi Talabi in Suit No. I/677/06 between PASTOR JOSEPH KEHINDE PHILLIPS SOMIDE Vs. MR. FEMI TALABI & 2 ORS in respect of the same subject matter.”

Thus, after arguing on the issues formulated above in his Written Address “IN SUPPORT OF THE COUNTER-

AFFIDAVIT AGAINST THE MOTION DATED 24TH MARCH, 2011”, the learned counsel urged the Court.

“.. to dismiss the Application dated the 24th March, 2011.”

It is therefore clear that the learned trial Judge erred when he dismissed the Plaintiff’s/Appellant’s Claim based on the Motion for joinder. The issue of dismissal of the entire Claims of the Appellant based on estoppel per rem judicatam was raised suo motu by the learned trial Judge. The entire arguments of learned Counsel for the parties were in respect of the motion for joinder and not on the competence of the Appellant’s Claims against the Respondents. I think the learned trial Judge misunderstood the entire purport of the arguments of Counsel, thereby leading him to dismiss the Appellant’s Claims. The end result is that the learned trial Judge granted to the Respondents, and indeed the party sought to be joined, what they did not ask for. It is trite law, that no Court has the jurisdiction to give or grant to a party what the party did not ask for. This is based on the principle that a Court not being a Father Christmas cannot grant to a party a relief which he has not sought for or which is more than what he has claimed. See Eagle Super Pack (Nig.) Ltd v. A.C.R. Plc (2006) 19 NWLR (pt. 1013) p. 20; Ekpenyong v. Nyang (1975) 2 S.C. p. 71 at 81 – 82; The Nigerian Air Force v. Wing Commander T.I.A Shekete (2002) 18 NWLR (pt. 798) p. 129 and A.G; Federation v. A.I.C Ltd (2000) 10 NWLR (pt.675) p.293. Thus in the case ofThe Nigeria Air Force v. Shekete (supra), Niki Tobi, JSC (of blessed memory) held that:

“It is elementary law that a Court of law cannot grant an Applicant a prayer not sought. A Court can only grant a relief or prayer sought. The moment a Court grants a relief or prayer not sought by the party, it expands the boundaries of litigation and unnecessarily instigates more litigation to the detriment of the parties and for no reason at all. The litigation is for the parties and not the Court. Therefore the Court has no jurisdiction to extend or expand the boundaries of litigation beyond what the parties indicated to it. In other words, the Court has no jurisdiction to set up a different or new case for the parties.”

In the instant case, it is apparent that the learned trial Judge went beyond what was presented before him by the Motion for joinder. The only jurisdiction the trial Court had by the Motion was to either allow or refuse the Motion for joinder and nothing more. Alas, the learned trial Judge went beyond the relief demanded by the parties and proceeded to dismiss the Appellant’s claims entirely. This decision is perverse and must be set aside.

Now, learned Counsel for the Appellant had prayed this Court invoke Section 15 of the Court of Appeal Rules, Cap. 36, L.F.N, 2004 to grant the application seeking to join Mr. Femi Talabi in the Suit. In determining whether or not to invoke the powers of this Court under Section 15 of the Court of Appeal Act (supra) in any given case, the Court must consider whether in the circumstances of the case, it will be just and proper to do so. In determining the issue, the Court must consider the following fundamental conditions, among other factors:

(a) Whether necessary materials are available for the consideration and determination in the matter.
(b) The length of time between the disposal of the action or application at the trial Court and the hearing of the Appeal must be taken into consideration.

(c) The interest of justice in eliminating further or eliminating unnecessary delay in the disposal of the appeal and the hardship the parties may suffer if the order is not granted.

For this see Ibori & Ors v. Federal Republic of Nigeria. (2011) LPELR-8769 (CA) per Sanusi, JCA (as he then was); and U.B.A. Plc v. BTL Industrial Ltd. (2005) 10 NWLR (pt. 933) p. 356 at 370. In the instant case, the Appellant has sufficiently disclosed in Paragraphs 3 and 4 of the Affidavit in Support of the Motion for joinder the reasons why he seeks to join Femi Talabi in the action. The Respondents on record did not file any Counter Affidavit in opposition. It should also be noted that the motion subject of this appeal was an interlocutory application. It therefore means that, hearing in the substantive matter has not started. As has been decided herein, this appeal is one that should be allowed and this will entail sending back the matter to the trial Court for hearing on the merit. Accordingly, if we do not invoke our powers under Section 15 of the Court of Appeal Act (supra) so as to grant the application for joinder, the matter may resurface again in the Court of first instance, thus further delaying the hearing and determination of the substantive matter. I am therefore of the view, that it will be in the interest of justice to accede to the request of learned counsel for the Appellant. Accordingly, in the exercise of the powers granted this Court under Section 15 of the Court of Appeal Act (supra), I hereby hold that the Application for joinder of Femi Talabi as a Defendant in the Suit, has merit. It is granted. In that respect, I order that: F MI TALABI be and is hereby joined as a Defendant in this Suit.

On the whole therefore, I am of the view that this appeal has merit. It is hereby allowed. Accordingly, the Ruling of the Oyo State High Court sitting in Ibadan in Suit No. I/305/2009 delivered on the 30/4/2013 is hereby set aside. The Suit is remitted to the Chief Judge of Oyo State to be heard on the merit by another Judge other than M. F. Oladeinde, J. The parties are to bear their costs.

IYIZOBA, JCA

I had the privilege of reading in draft the judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI JCA. I agree with his reasoning and conclusions.

The ruling of the learned trial Judge ought to have been in respect of the application for joinder. With respect, his lordship erred in dismissing the plaintiff/Appellant’s claims on the ground of being caught by the doctrine of estoppels per rem judicatam. The Respondents herein did not oppose the application for joinder. The party sought to be joined; not having been made a party yet had no locus to raise the issue of estoppels in his counter affidavit and written address in opposition to the application for joinder. As rightly pointed out by my learned brother in the lead judgment, the learned trial judge jumped the gun. I agree that the appeal has merit. I also agree that this is a proper case to invoke our power under Section 15 of the Court of Appeal Act to grant the application to join Femi Talabi as a Defendant in the suit. I also allow the appeal. I abide by the consequential orders in the lead judgment.

OKORONKWO, JCA

Estoppel Per rem judicatam as a Principle of law operates to bar or preclude action or suits by Persons who had either directly or through predecessors in interest or privies had litigated over an issue or issues in which judicial decision is reached and pronounced and has not been set aside for example by appeal. In a subsequent proceedings by the parties or their privies or successors in interest, such previous proceedings could be raised in bar to preclude the subsequent action where the parties are the same and interest are the same.

In the case leading to this appeal, Femi Talabi who is relying on the doctrine of estoppels per rem judicatam is not yet a Party in the proceedings and so no locus to raise the issue or cause of action estoppels if he (Femi Talabi) waited to be joined, he would have been on the threshold of the doctrine and in a position to raise it as a bar.

It is for the above reason that I agree with the judgment of my lord H.S. Tsammani JCA.

I agree and abide with the orders made therein.