Courts are the established institutions saddled with the responsibility to adjudicate between all persons, government or authority in all matters and for the determination of any question as to the civil rights and obligations except where otherwise is provided by The constitution or any other valid enactment. See section 6 (6) of the Constitution of the Federal Republic of Nigeria 1999 as amended . For such determination of civil rights or obligations between parties the constitution have laid a sacred provision of principle of fair hearing which is sacrosanct and fundamental for the attainment and establishment of justice not just for the claimant but justice for all the parties before the court of law. This principle of fair hearing is enshrined in section 36 of the constitution (supra) and it dictates that no one shall be condemned in his absence; one shall be given adequate time and upportunity to defend his interest in a case.
This Article examined the princples and approaches of the competent court’s pronouncement against a person who is not a party in a case before the court. oftentimes’ there is always the main issue around under which other related issues may be resolved, the present article thus examined the differences of court judgements in respect to their binding scope, parties in a suit, effect of non-joinder of necessary party, conduct or approaches of trial and appellate court when necessary party is not joined, among other related things therein.
For the kind determination of our sole issue which is WHETHER A JUDGEMENT OF A COURT IS BINDING ON A PERSON WHO IS NOT A PARTY IN A CASE we need to look at the differences of court judgement in term of binding scope and assess parties and a position of a necessary party in a case and effect of not joined therein as a party.
Judgement of court can on this nexus be categorized into two thus Judgement in rem and judgement in personam. What is judgement in rem? what is judgement in personam? and what are the relationship between the two? Courts have in replete cases not just defined the two terms but also differentiated them.
In PDP v. INEC & ors (2014) AELR 3801 (CA) Court of Appeal through His Lordship BOLAJI-YUSUFF,J.C.A clearly defined judgement in rem in the following words.
“A judgment in rem may be defined as the judgment of a court of competent jurisdiction determining the “status of a person or thing” as distinct from the particular interest of a party to the litigation. Apart from the application of the term to persons, it must affect the “res” in the way of condemnation, forfeiture, declaration, status or title. Examples are judgment of a court over a will creating the status of administration. Judgment in a divorce by a court of competent jurisdiction dissolving a marriage declaring the nullity or affirming its existence. Judgment in an election petition. The feature of a judgment in rem is that it binds all person whether a party to the proceedings or not. It stops anyone from raising the issue of the status of person or persons or things, or the rights or title to property litigated before a competent court.’ It is indeed conclusive against the entire world’ in whatever it settles as to status of the person or property. ‘All persons whether party to the proceedings or not’ are stopped from averring that the status of persons is other than the court has by such judgment declared or made it to be.”(MY EMPHASIS)
Whilst Judgement in personam is a judgement given in an action instituted against a particular person or persons as the Supreme Court Explained in the case of Nigeria Ports Authority v Panalpina (1973) 5 SC 77 at 96 – 97 thus:
“Etymologically an action in personam is an action brought against a person, an action to compel to do or not to do a particular course of action. Actions for damages in tort or for breaches of contract are clearly directed against the person as opposed to actions which are brought for the purpose of declaring or challenging status, like proceedings under the matrimonial laws of the country or of legitimacy or an action directed against a ship or the res (as so known as an action in rem) or the like. Generally, therefore, all actions requiring him to do or not to do or take or not to take action or course of conduct mast be and are actions in personam.”
In clearing the air, the Supreme Court differentiated between the two judgements in the case of Ikenye Dike & Ors. v. Obi Nzeka II & Ors (1986) LPELR 94 (SC) thus:
“It is therefore necessary to have a clear idea of the distinction between a judgment in rem and a judgment in personam. A judgment is said to be in rem when it is an adjudication pronounced upon the status of some particular thing or subject matter by a Tribunal having the jurisdiction and competence to pronounce on that status. Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is therefore binding on all persons in so far as their interesting status of the property or person is concern. That is why a judgment in rem is a judgment contramundum-binding on the whole world-parties and non parties. A judgment in personam on the other hand is on an entirely different footing. It is a judgment against a particular person as distinguished from a judgment declaring the status of a person or thing. A judgment in personam will be more accurately called a judgment inter parties. A judgment in personam usually creates a personal obligation as it determines the rights of parties interse to, or in the subject matter in dispute whether, it be land or other corporeal property or a liquidated or unliquidated demand but does not affect status of either of the persons to the or the thing in dispute.”
From the above wordings of the learned Justices the relevant differences of the two court pronouncement in our discussion are;
Judgement In rem is binding on Everybody whether parties or non parties (contra-mundum)While judgement in personam is only binding on the disputing parties before the court (judgement inter-parties) Note that judgement in personam is also binding on the parties’ agents, privies and or estate.
Having reached this position the resolution of our solitary issue will be based on judgement in personam since it is already submitted that judgement in rem is binding on everybody notwithstanding being a party or not. But in our determination of joinder of parties in a case, action in rem can be included.
At this position it is also pertinent to consider the position of parties and the differences of parties in a case.
First of all a party is simply a person or juristic personal whose name appear in a suit as a plaintiff/claimant or defendant, or as appellant or respondent in the case of appellate court.
The term parties in the case of Green v. Green  3 NWLR (PT 61) 480; (1987) NSCC pg. 115 of 121; 3PLR/1988/35 (SC) defined as “persons whose names appear on the record as plaintiff or defendant”,
In the case of Fawehinmi v. NBA (No 1) 1989 2 NWLR Pt. 105 pg. 494 at pg. 550 – A party is defined as follows:
“A party to an action is a Person whose name is designated on record as plaintiff or defendant, the term party refers to that person(s) 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 and not parties.” see also DOKUBO & ORS v. MOBILE PRODUCING NIGERIA UNLTD & ANOR (2013) LPELR-21951(CA)
But parties can be proper parties, desirable parties and or necessary parties as their distinctions was duly considered in GREEN v. GREEN(supra) per OPUTA JSC (as he then was) thus;
“Proper parties are those who, though not interested in the plaintiff’s claim, are made parties for some good reasons e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result.
Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be, fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.” His Lordship relied on the Amon v. Raphael Tuck & Sons (1956) 1 W. B. 357, Settlement Corporation v. Hoshschild (No.2) (1959) 1 W.L.R. 1664, Re Vandervills (1971) A C. 812 and Re Vandervelle Trust (1969) 3 All E R. 496.
Our main concern from the above categories of parties is not an interested nor a proper party but a necessary party; one who is not only interested in the subject matter of the proceedings but in the absence of whom the question or issue in dispute cannot be properly and finally settled unless he is made a party. see Per HUSSEIN MUKHTAR, J.C.A. in NWANNA V. A.G FEDERATION & Anor(2010) LPELR-9047(CA) see also The Black’s Law Dictionary, 9th Edition, Page 1232.
But the question is what makes party a necessary party?
in the famous case of Amon v. Raphael Tuck & Sons Ltd. (1956) 1 Q. B. D. 357 Devlin, J. answered this question in the following clear words, thus;
“…It is not, of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought of some relevant arguments to advance … That would mean that on the consideration of a clause in a common law form contract which many parties would claim to be heard…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 of the action and the question to be settled There must be a question in the action which cannot be effectually and completely settled unless he is a party”
In Registered Trustees of NACHPN & Ors Vs Medical & Health Workers Union of Nigeria & Ors (2008) LPELR 3196 (SC); (2008) 1 FWLR (Pt. 410), Supreme Court also in this regard had this to say about necessary parties:
“All those who claim some share or interest in the subject matter of the suit or who may be affected by the result, as well as those the Court may join even suo motu, are necessary parties, for their presence before the Court may be necessary in order to enable the Court effectively and completely, to adjudicate upon and settle all the questions involved in controversy.” Per Mohammed JSC.
Having considered a necessary party in a case, one may ask what if the necessary party is not joined as a party? Would that render the entire suit void? Is the judgement given against him binding?
to sharply answer the former question a non-joinder of a necessary party can not render the action void as provided in The High Courts Procedure Rules of various state and there is no shortages of judicial pronouncements in this boat. Order 13 Rule 16 (1) of the High Court Of Kaduna State (Civil Procedure) Rules 2007 provides;
No proceedings shall be defeated by reason of misjoinder or nonjoinder of parties, and a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before the court. see also Order 15 rule 16 (1) of High Court of Lagos (civil procedure) rule 2019, Order 13 Rule 16 (1) of the High Court Of Oyo State (Civil Procedure) Rules 2012 Order 12 rule 5 of the Federal High Court (Civil Procedure) Rules 2000; and Order 16 Rules 1 of the Cross River State High Court (Civil Procedure) Rules 2008 with the same impacts.
In NWANNA vs. A-G FEDERATION (Supra) per Hussein Mukhtar, JCA Court stated that;
“However, the non-joinder of a necessary party will not ground a dismissal of the action as the Lower Court did in this case nor does it derobe the court of jurisdiction to hear the case as held by the learned trial Judge ….”
In the case of DAPIALONG vs. LALONG (2007) 5 NWLR (PT. 1026) 199 at 212 E-F per Akaahs, JCA (as he was then) held thus:
‘An action cannot be rendered incompetent simply because all the necessary parties have not been joined in the suit. It suffices if the parties before the court are competent parties and the cause of action, if substantiated by the plaintiff entitles him to a remedy against the defendant. In the instant case, the reliefs sought by the respondents could be determined between the parties to the suit without joinder of other parties.”
See also BABA YEJU v. ASHAMU (1998) 9 NWLR (pt. 567) 546 at 557 paras E-F per Ogundare, JSC (of blessed memory); CROSS RIVER STATE NEWSPAPER CORPORATION vs. ONI (1995) LPELR (898) 1 at 31 and IFEANYI CHUKWU (OSONDU) LTD vs. SOLEH BONEH LTD (2000) LPELR 1 at 64.
It is law, long settled law as expressly stated above that no proceedings shall be torpedoed by reason of misjoinder or non-joinder of necessary parties, and as observed necessary parties are such parties that will affect by the outcome of the case and are such parties who in their absence the case cannot be effectually and completely settled. This leads to the second question What is the impact of the judgement delivered in the absence of a necessary party? In other words, can a judgement be binding on a person who is a not party in a suit?
Verily, this is the Main issue at hand but it seems resolved indirectly while we differentiate between Judgement in rem and in personam above; as observed judgement inter-parties is only binding on the parties as against judgement in rem. This is a long settled position of as it is summed up in the Maxim; “Res inter alios judicatae nullum aliis praejudicium faciunt” means “Matters adjudged in a cause do not prejudice those who were not parties to it Dig”. implies that stranger cannot be bound by what is decided between others and among themselves.
The Maxim ‘res inter alios’ blessed with a judicial meaning by His lordship Obaseki, J.S.C.( of blessed memory) in ALHAJI SURAKATU I. AMIDA & ORS. V. TAIYE OSHOBOJA (1984) LPELR-463(SC)
“A judgment inter partes or in personam raises an estoppel ‘only against the parties to the proceedings in which it is given and their privies; (1) privies in blood, (2) privies in law; and (3) privies in estate.’ As against all other parties, it is’ res inter alios acta’, and with certain exceptions, although conclusive of the facts that the judgment was obtained and of its terms, is not admissible evidence of the facts established by it”.(MY EMPHASIS)
Another applicable maxim to this issue is ‘res inter alios acta alteri mocere non debet’ the meaning was given in the case of MOJEED SUARA YUSUF V. MADAM IDIATU ADEGOKE & ANOR (2007) LPELR-3534(SC) where His Lordship ADEREMI, J.S.C. Remarks thus;
“The maxim, res inter alios acta alteri mocere non debet literally translated means that ‘a man ought not to be prejudiced by what has taken place between others’. The maxim operates to exclude all the acts, declarations or conduct of others as evidence to bind a party either directly or by inference.”
The maxim ‘audi alteram partem’ which reflects that; No one can have a decision entered against him without him being heard. is also applies to this issue. see THE NIGERIAN NAVY & ORS v NAVY CAPT. D. O. LABINJO(Infra)
For this the law is settled that a person to be affected by a decision of the Court must be joined as a necessary party to the suit. See GREEN v GREEN(supra) O.K. CONTACT POINT v PROGRESS BANK  5 NWLR (PT 604) 631.
In MRS. IFEANYI OBIOZOR v. BABY NNAMUA (2014) LPELR-23041(CA) it was held thus;
“it is a settled state of our law that no orders will be made against a person who is not a party originally appearing or joined by court or any of the original parties… It is trite law that a trial court is not to make an order that will affect the interest of a non party to the suit.” Per AGIM, J.C.A.
in LAWRENCE S.U. AZUH v. UNION BANK OF NIG. PLC (2014) AELR 3845 (SC) the Supreme also in the same regard through KEKERE-EKUN, J.S.C. held;
“An order made against a person who was not a party to the action before the court, though not a nullity, is to no avail. It cannot stand the test of time and is not binding on such non-party to the action”
In AZUBUIKE v PDP & ORS  7 NWLR (PT. 1406) 292 at) also it was held that a judgment made against a person who was not a party to a suit is to no avail.
It is however interesting, that this position is not the non-party’s bed of roses that always favour who is not a party in action as some certain exceptions were witnessed in some judicial decisions.
One exception is observed per OPUTA in GREEN v. GREEN in the following words;
“Under our law a person whose interest is involved, or is in issue an action and who knowingly chose to stand by and let others fight his battle for him is equally bound by the result in the same way as if he were a party” His Lordship relied on Re Lart (1986) 2 Ch. D. 788; Leeds v. Amherst 16 L.J. Ch. 5; Esiaka v. Obiasogwu 14 W.A.C.A. 178; and the case of Abuakwa v. Adanse (1957) 3 All. E. R. 559.
In a very recent court of appeal decision in ANCHOR OCEAN LTD v. BONO ENERGY LTD & ORS (2018) LPELR-45530(CA)The Court of Appeal have unanimously affirmed the judgement of the lower Court against the appellant who although not a party in the case at the trial court but was accorded right to be heard in the trial court.
As held Per OBASEKI-ADEJUMO, J.C.A. in his leading judgement thus;
“It is not disputed in the instant case that the Appellant is not a party to the suit at the Lower Court, and applying the general position of the law stated above to the instant case, the reasonable conclusion here is to declare the order made by the Trejo ial judge against the Appellant, a nullity. This is ipso facto the Appellant’s wish; I must say I am unable to tow that line…I have earlier enumerated the relevant facts in the instant case, and while it is undisputed that the Appellant is not a party to the pending suit at the Lower Court, it is not also disputed that the Appellant is no stranger to the suit. From the record before us”.
His Lordship further remarked on the essence of the law as follows;
“Needless to say that the position of law precluding a Court from making an order against a non-party is hinged on the inviolable doctrine of natural justice and principle of fair hearing, which demands that a party must be heard before a case against him is determined. See THE NIGERIAN NAVY & ORS v NAVY CAPT. D. O. LABINJO  1 SCM 138 at 159, where the Supreme Court, per PETER-ODILI, JSC held that “it is a basic fundamental principle in our system of justice that no one can have a decision entered against him without him being heard. That being the essence of the maxim audi alteram partem”.
From the foregoings, it is suffice to say that the position of the law on a judgement against non-party is therefore exception to a circumstances where a person waived or slept over his right of being joined as a party in a case which he is likely to be affected with the out come or when a person who was a party in a case but also not a stranger in a case, thus was entitled to fair hearing before the judgement. But it also pertinent to state; these are not the only exceptional circumstances, as KEKERE-EKUN, JSC remarked In the case of UDO v STATE (2016) LPELR – 40721 (SC);
“That the decision of a Court must always be considered in the light of its own peculiar facts or circumstances. See also UGWUANYI v NICON INSURANCE PLC (2013) LPELR – 20092 (SC) and SKYE BANK & ANOR v AKINPELU (2010) LPELR – 3073 (SC). For this Court my on some certain Circumstances declared a judgement against non-party binding when it deemed fit.
It is also interesting as Equity is alive and well in our jurisprudence; a non-party in a suit is protected to be binding by the judgement against him, law is trite that a non-party can not just step in and ask a court whether to enforce or to set aside a judgement which he has no blood in. see PHILIP MORRIS INTERNATIONAL MANAGEMENT SA v. THE ATTORNEY GENERAL OF OGUN STATE & ORS (2017) LPELR-42181(CA) and UMEZ ENGINEERING CONSTRUCTION CO. LTD & ANOR v. ALOZIE (2018) LPELR-44656(CA)
Being it submitted that not joining a necessity party cannot be a fatal to a case and a judgement or order against him is to no avail. The question that is likely to rise is what is the approach of the Trial Court and appellate Court in such situation?
A Trial Judge may order (suo motu) that the name of any person who ought to have been joined or whose presence before the court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings be added And also where it appears to a trial Judge that any person not a party in the proceedings may bear eventual liability either in whole or in part, the Judge may, upon an application, allow that person to be joined as a Third Party or defendant. The application can be moved by either of the parties or the third party wish to be joined which is known as ‘Intervener’. see Order 13 of the High Court Of Kaduna State (Civil Procedure) Rules 2007; Order 15 of High Court of Lagos (civil procedure) rule 2019; Order 13 Rule of the High Court Of Oyo State (Civil Procedure) Rules 2012.
This position obtained judicial assent in OYEYEMI &ORS v OWOEYE (2017) LPELR – 41903 (SC) per AKA’AHS, JSC where it was held that;
“when proper parties are not before the Court, the proper course the Court must follow is to direct that all persons interested or likely to be affected by the results are brought before it”.
In PEENOK v. HOTEL PRESIDENTIAL (1982) 12 S.C.1 at 124, )It was held among other things per IDIGBE J.S.C. thus;
“The court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, order that the names of any parties improperly joined, whether as plaintiffs, or defendants, be struck out, and that the names of any parties whether plaintiffs or defendants who ought to have been joined, or whose presence before the court may be necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.”
Also in SODEINDE v. ALLEN & ANOR (2018) LPELR-46782(CA)per OBASEKI-ADEJUMO, J.C.A. thus;
“The lower Court on becoming aware of the need to put the Appellant on notice ought to have ordered that she be joined as a party. See also the case of MOZIE v MBAMALU  15 NWLR (PT 1003) 466.
It is worth to note that court can join such parties it deemed fit to be joined at any stage of the proceedings before judgement. In EZENWA v. MAZELI & 5 ORS. (1955) 15 WACA. 67 at p. 69 the West African Court of Appeal affirmed and upheld a joinder of parties made by the trial Judge after final addresses pending final judgment. see also PEENOK v. HOTEL PRESIDENTIAL (supra)
But where judgement is already been delivered, An effected non-party shall seek and obtain the leave of the trial court or Court of appeal in order to appeal. see section 243 (a) of the constitution(supra). Also VICTORIA ISLAND PROPERTIES LTD & ORS v. ASIFO-EGBE & ORS (2018) LPELR-43694(CA) Per OWOADE, J.C.A where it was held among other things thus;
“where a Court makes an order which affects a third party, the third party must necessarily apply to that Court for amends rather than the option of appeal as the Appellants have done in this case; Appellants’ counsel took refuge in the decision of the Supreme Court per Mohammed, JSC in the case of BELLO vs. INEC (2010) 8 NWLR (PART 1196) 342 at 388 where the Court made it clear that such an aggrieved third party may apply to the same trial Court for leave to appeal to the Court of Appeal within the time prescribed for appealing as was done by the Appellants in the instant case or after the expiration of time apply to the Court of Appeal as an interested party by way of trinity prayers”
The approaches of the appellate court can be noted in the words of AKPATA, JSC as held in OKOYE v NIGERIAN CONSTRUCTION & ORS (1991) LPELR – 2509 (SC) thus;
“…if an action is improperly constituted because those who would have been made parties were not made and the case went to trial, an appeal Court would have a number of options depending on the facts of each case, namely: 1. To remit the case for re-trial and for those who ought to have been joined to be joined; 2. To strike out the action if a re-trial would necessitate extensive and/or complicated amendments to the writ and statement of claim to reflect the joinder; 3. To join for purposes of the appeal the person who ought to have been joined in the trial Court; 4. To hold that the person complaining that he ought to have been joined was not such a necessary party and that the non-joinder would not defeat the cause or matter”
Also in GREEN v. GREEN it was held inter alia thus;
“The point I am making here is that even where this court or any appellate court finds that not all parties were before the court so many orders – namely striking out, dismissal, non-suit, retrial -are available to that appellate court. It is only the surrounding circumstances of each individual case – including the way the claims were formulated; whether those persons not joined were merely “proper parties” or “desirable parties” or “necessary parties”; the effect of the proposed order on the overall justice of the case etc. that will dictate the appropriate order to be made.
From the above summations both the trial court and the appellate court adopt certain approaches in a circumstance where a party who ought to have been joined was not joined in the case, the rationale for joining a party is to make him bound by the verdict of the Court and the matter before the court to be completely and perfectly settled See MAFIANA & ANOR V ONWUHAI & ANORÂ Â (2018) LPELR 44847 (CA); BOSSOM VENTURES LTD v FCDA & ANOR (2012) LPELR 14356 (CA).
“The issue of joinder, non-joinder and misjoinder of parties has agitated and has been agitated in the courts from time to time, and there is no paucity of principles or dicta in this branch of the law. The only difficulty that may arise is the application of those principles and dicta to the facts and circumstances of any particular case.” per Oputa in the GREEN v.GREEN. The present work is therefore Examined Some of those principles, the application of those principles and other releted issues and it is hoped that the work will serve many purposes in resolving the long time joined-issue in our jurisprudence.
About the author
Alkasim Abubakar (A.A.M.G)
Is a student of law from the Ahmadu
Bello University, Zaria, Kaduna
Writes from Zaria, Kaduna.
For knowledge and Justice
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