CORAM

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Hamma Akawu Barka JCA

Abba Bello Mohammed JCA

Peter Chudi Obiorah JCA

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PARTIES

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1. MR. VICTOR NENGAK DIMKA (Suing As Next Friend Sokmwa Abigail Dimka)

APPELLANTS 

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1. STEPHEN GOTOM KUPTONG (Executor/Trustee Of The Estate Of Filibus Suwa Dimka “Deceased”)

2. MRS. EVELYN DIMKA (Guardian Ad-Litem Of Gerald Kopji Dimka)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, INTERPRETATION LAW, PRACTICE AND PROCEDURE, PROBATE AND ADMINISTRATION

 

 

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SUMMARY OF FACTS

The Will and Testament of the deceased was made on 20th day of October, 2002 and included a phrase “any other children that may be born to me” under Clause 11 thereof. At the time of making the Will, the testator had a wife, Mrs. Evelyn Dimka and both of them had a son called Gerald Kopji Dimka. The testator died in 2010 but prior to his death had fathered a girl child named Miss Sokmwa Abigail Dimka. In other words, Miss Sokmwa Abigail Dimka was born on 14th September, 2008 after the Will and Testament was made but before the death of the testator.

The 1st Respondent as the the Executor/Trustee of the Estate of Filibus Suwa Dimka (deceased), filed an Originating Summon wherein he sought to include Sokmwa Abigail Dimka as a beneficiary of the Will/Estate of Filibus Suwa Dimka (Deceased).

The High Court of the Federal Capital Territory, Abuja (the trial Court), delivered its judgment on dismissing the Originating summon filed by the 1st Respondent.

The Appellant, who was dissatisfied with the judgment of the trial Court, sought and obtained leave of this Court to appeal as an interested party, i.e., as the Next Friend of Sokmwa Abigail Dimka. Having obtained the leave, the Appellant filed a three ground Notice of Appeal on the 19th of February, 2019.

 

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HELD

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Appeal allowed

 

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ISSUES

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1. Whether the judgment of the trial Court ought to be set aside or amount to a nullity due to the non-joinder of the child whose rights and interests was the subject matter of the proceedings?

2. Whether the learned trial judge was right when he interpreted the phrase “any other children that may be born to me” under clause 11 of the WILL AND TESTAMENT of Filibus Suwa Dimka (Deceased), to exclude the Appellant, Sokmwa Abigail Dimka?

 

 

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RATIONES DECIDENDI

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PARTIES – MEANING OF NECESSARY PARTIES, DESIRABLE PARTIES, AND PROPER PARTIES

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The question of who is a necessary party to a suit had been settled in the celebrated case of GREEN v GREEN (1987) LPELR-1338(SC), where His Lordship Oputa, JSC distinguished between proper, desirable and necessary parties. At pages 16 – 17, paras. F – E, Oputa, JSC espoused as follows:

“This now leads on to the consideration of the difference between ‘proper parties’, ‘desirable parties’ and ‘necessary parties’. Proper parties are those who, though not interested in the Plaintiffs 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 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.”

See also: AGUNSOYE v AROJOJOYE & ORS (2023) LPELR-60393(SC) at 24 – 26, paras. F – F, PEENOK INVESTMENTS LTD v HOTEL PRESIDENTIAL LTD (1982) LPELR-2908(SC) at 39 – 40, paras. B – C and IGE & ORS v FARINDE & ORS (1994) LPELR-1452(SC) at 28 – 29, paras. B – E.

Therefore, whether or not a party should be joined in a suit is dependent on whether his participation in the suit is necessary or whether it is only desirable. A party will only be joined in a suit where his participation in same is necessary in order to fairly and effectually determine the suit. The burden is on the party who seeks to be joined in a suit to establish that he is a necessary party to the suit: BELLO v INEC & ORS (2010) LPELR-767(SC) at 77, paras. B – C. – Per A. B. Mohammed, JCA

 

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PARTIES – THE RIGHT PARTIES TO SUE WHERE A BENEFICIARY HAS BEEN DENIED THE BENEFIT OF ANY DEVICE MADE IN A WILL

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In UNOKA & ORS v AGILI & ORS (2007) LPELR-8554(CA) and NZERIBE v NZERIBE (2013) LPELR-21930(CA), this Court had stressed the legal position that Executors and Trustees of a Will are the right persons to sue where the complaint is that a beneficiary has been denied the benefit of any device made in the Will. In such a situation, it is the Executor/Trustee and not the beneficiary that is the necessary party to the suit. – Per A. B. Mohammed, JCA

 

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MISJOINDER/NON-JOINDER – THE EFFECT OF A MISJOINDER/NON-JOINDER OF PARTIES ON A PROCEEDING

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With regard to the Appellant’s argument over the effect of the non-joinder of Sokmwa Abigail Dimka as a party to the suit, Order 18 Rules 1 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2018, which is the applicable rules for this appeal, provides as follows:

“18(1) No proceeding shall be defeated by reasons of misjoinder or non-joinder of parties, and the Court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before him.”

The law is indeed settled that proceedings are not defeated by reason of misjoinder or non-joinder of parties. Once an action is properly constituted with all its necessary pre-conditions satisfied, the failure to join a necessary party to the action can only amount to a procedural irregularity which does not affect the competence of the action or the jurisdiction of the Court to entertain same. Hence, such failure will not render the action a nullity and it is only where the irregularity has led to unfairness or injustice to the other party that the judgment of the Court may be set aside. However, it needs to be emphasized that the burden is on that other party to establish that the failure to join him in the action has occasioned unfairness or injustice to him.

In stating the effect of failure to join a necessary party in an action, the Supreme Court, per Akpata, JSC, held in OKOYE & ORS v NIGERIAN CONSTRUCTION & FURNITURE CO. LTD & ORS (1991) LPELR-2509(SC) at 35 – 37, paras. G – A, as follows:

“First, if the trial Court had no jurisdiction in Ekpere’s case because Jesse clan was not made a party, this Court would not have “anxiously considered what should be the order of this Court”. It would have unhesitatingly declared the judgment null and void and of no effect whatsoever. Secondly, it would not have crossed the mind of this Court to think of remitting the action for a re-trial. As stated in the case of Madukolu and Ors v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All N.L.R. 587 at page 596: “If a Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial, the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case the appeal Court may not think fit to set aside the judgment. A defect in procedure is not always fatal.” In my view, failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, the irregularity may lead to unfairness which may result in setting aside the judgment on appeal. Setting aside a judgment or making an order striking out the action or remitting the action for a retrial in such circumstance will not be for lack of jurisdiction or on the basis of the judgment being a nullity.”

See also on this: RMAFC v A.G. OF RIVERS STATE & ANOR (2023) LPELR-60355(SC) at 57 – 59, paras. E – A, CO-OPERATIVE & COMMERCE BANK (NIG) PLC v ROSE U & ORS (1998) LPELR-8091(CA) at 5, paras. C – E, AGBEKONI v KAREEM (2007) LPELR-8753(CA) at 14 – 18, paras. E – F, ZILLION ENGINEERING (NIG) LTD v ADEBAYO (2022) LPELR-57794(CA) at 32, paras. C – E, and OKEZIE v. ADIWU & ORS (2024) LPELR-61984(CA) at 29 – 30, paras. F – E. – Per A. B. Mohammed, JCA

 

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COURTS – CONDUCT OF COURTS IN INTERPRETING STATUTES OR INSTRUMENTS

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It is settled that in interpreting a statute or any instrument, once the words used in its provisions are expressly clear and unambiguous, the Court is under a duty to give the provisions of that statute or instrument an ordinary meaning. This trite legal position was restated by the Supreme Court in the case of REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA v NAMA (2014) LPELR-22372(SC), wherein His Lordship Okoro, JSC held at 36, paras. B – D, thus:

“The cardinal principle of interpretation of statute is that where the words used in a statute are clear and unambiguous the Courts should give them their ordinary natural and literal meaning in order to establish the intention of the law maker. It is only where the ordinary or literal meaning of the clear and unambiguous words fails to bring out the intention of the lawmaker or leads to an absurdity that resort is had to constructive interpretation.”

See also COTECNA INT’L LTD v IVORY MERCHANT BANK LTD (2006) LPELR-896(SC) at 13, paras. B – D and CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS v EKPO (2008) LPELR-825(SC) at 25, paras. C – D. – Per A. B. Mohammed, JCA

 

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EJUSDEM GENERIS RULE – THE USE OF THE EJUSDEM GENERIS RULE

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The ejusdem generis rule used by the trial Court to interpret those words is essentially an interpretative rule applied by Courts in appropriate cases in order to confine the scope of general words which follow special words within the genus of the special words used. It is a rule which should be cautiously used and should only be applied where there is a distinct genus or category to which the general words used can be confined. – Per A. B. Mohammed, JCA

 

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INTERPRETATION – CONDUCT OF COURTS IN INTERPRETING STATUTES OR INSTRUMENTS

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The law is also settled that in interpreting a statute or instrument, the Court has no jurisdiction to add to or subtract from the clear and unambiguous words used in the statute or instrument. See OIL SERVICES LTD v OBONG SYLVESTER PETER UDOM & ORS (2013) LPELR-20398(CA) at 20 – 21, paras. F – F, HEAD OF THE FEDERAL MILITARY GOVERNMENT v GOVERNOR MID-WESTERN STATE & ANOR (1973) LPELR-1269(SC) at 26 – 28, paras. C – E and NWEGBU v NWEGBU (2017) LPELR-42680(CA) at 13 – 15, paras. E – A.

Thus, by the cannons of interpretation, documents, like words, are to be construed in their ordinary and grammatical meaning and under no circumstance should new and extraneous words be imported into the text of the document, except the document would be incapable of meaningful interpretation without the additional words being incorporated into the text.

Specifically in the case of a Will, the Supreme Court had cautioned in IDEHEN v IDEHEN (1991) 6 NWLR (Pt. 198) 382, that the provisions of a Will must be construed strictly in accordance with the intention of the testator. If the testator in the present case had intended to restrict the other children to which he had referred to only those born to him and his wife, he would have clearly stated so. Also, as held in the cases of ASIKA & ORS v ATUANYA (2013) LPELR-20895(SC) at 27 paras. F – G andIGBOIDU v IGBOIDU & ORS (1998) LPELR-6414(CA), per Rowland, JCA at 11 – 13, paras. B – A, a testator is at liberty to make his Will and dispose of his property in a way and manner he likes and once made, a Will should be allowed to speak in the way it was made and should not be modified to suit an imaginary intention of the testator by the trial Court. – Per A. B. Mohammed, JCA

 

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PERVERSE DECISION – MEANING OF A PERVERSE DECISION

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A perverse decision is one in which is persistent in error, against the weight of evidence or one in which the trial judge took into account matters which he ought not to have taken into account or where he shuts his eyes to the obvious. See ATOLAGBE v SHORUN (1985) LPELR-592(SC) at 31, paras. C – D and ALIYU v NAMADI & ORS (2023) LPELR-59742(SC) at 37, paras. B – E. – Per A. B. Mohammed, JCA

 

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COURTS – CONDUCT OF COURTS IN INTERPRETING STATUTES AND OTHER INSTRUMENTS

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The well established cardinal principle of interpretation is that where the words used in a statute or any other document or instrument is clear, plain and unambiguous then the words must be given their plain and ordinary meaning. In Nwobike v. FRN (2021) LPELR- 56670(SC) at page 67 paras. A, Ogunwumiju, JSC held that:

“…when the words of the statute are very clear, plain and unambiguous without equivocation, then the Courts are bound to give effect to that meaning irrespective of the consequences.” – Per P. C. Obiorah, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. High Court of the Federal Capital Territory (Civil Procedure) Rules, 2018

2. High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004

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