There are general questions a court should ask itself in order to decide the effect of non-joinder or mis-joinder of a party.[1] They are:
- Is the cause or matter liable to be defeated by non-joinder?
- Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant?
- Is the 3rd party a person who should have been joined in the first instance?
- Is the 3rd party a person whose presence before the court as a defendant will be necessary in order to enable the court to effectually and completely adjudicate or settle all the questions involved in the cause or matter?
– Proper orders for the Court to make where there is a misjoinder of parties and cause of action
Where there is a misjoinder of parties and cause of action, the proper order for the Court to make where the matter has been heard to conclusion would be non-suit. But where the case has not been heard on the merit, the proper order would be to set aside the claim by striking out the suit where the claim is not amendable. [2]
– Whether a cause or matter can be defeated by reason of non-joinder of parties
In Ayorinde v Oni,[3] it was held that non-joinder of a necessary party is a procedural irregularity which does not affect the competence or jurisdiction of the Court but that where the irregularity leads to injustice or unfairness to the opposing party, it may lead to setting aside of the judgment on appeal.
Also, refer to the relevant rules of court.
[1]Green v Green (1987) 3 NWLR (Pt 60) 80.
[2]Ogungwa and aothers v Williams and another (2019) LPELR-47536(CA) 19-20, paras.E-A; Cross River State Newspapers Corporation v Oni and others (1995) LPELR-898(SC).
[3](2000) 75 LRCN 206, 224.