The law is settled that where an action is properly constituted with a Plaintiff possessing the legal capacity to bring an action; a defendant with a capacity to defend; a claim with a cause of action against the Defendants; and the action itself having satisfied all preconditions necessary for instituting the action, the fact that a necessary party to the action has not been joined is not fatal to the action and will not render the action a nullity. This is because the failure to join a necessary party is a procedural irregularity, which does not affect the competence or jurisdiction of the court to entertain a matter before it. However, the exception is where the irregularity leads to unfairness or injustice to the other party. [1]
However, where the nature of the evidence before the court is such that the case of the parties can be settled in the absence of the parties not joined, it can proceed to do so. It is only in those causes where it will not be right and the court cannot properly determine the issues before it in the absence of the parties whose participation in proceeding is essential for the proper, effectual and complete determination of the issues before it, will it be necessary to insist on the joinder of such necessary parties.[2]
[1]Mr. Michael Agbekoru v Alhaji Ibrahim A. Kareem (2007) LPELR 16-17 paras A-E.
[2]Uku v Okumagba (1974) 3 SC 35; Peenok v Hotel Presidential (Ltd) 1982 12 SC 1, 48; Green v Green (1987) 3 NWLR (Pt 61) 480; Ayorinde v Oni (2000) LPELR – 684(SC) 30-31 paras F-B.