LEGAL PRINCIPLE: CIVIL PROCEDURE – Joinder of Parties – Options Available to Appellate Court Where Action Improperly Constituted
PRINCIPLE STATEMENT
Where action is improperly constituted, appellate courts have identified the following options depending on facts: (1) remit for retrial and for those who ought to be joined to be joined; (2) strike out the action if retrial will necessitate extensive and/or complicated amendments to reflect the joinder; (3) join for purposes of appeal the person who ought to have been joined in trial court; (4) hold that the person complaining ought to have been joined was not such a necessary party and that non-joinder would not defeat the cause.
RATIO DECIDENDI (SOURCE)
"In Okoye & Ors. v. NCFC Ltd. & Ors. (supra), Akpata, JSC identified the following options depending on the facts of the case as follows — To remit the case for retrial and for those who ought to be joined to be joined; To strike out the action if a retrial will necessitate extensive and/or complicated amendments to the writ and statement of claim to reflect the joinder; To join for purposes of the appeal the person who ought to have been joined in the trial Court; 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."
EXPLANATION / SCOPE
Appellate courts facing improper constitution/non-joinder have four remedial options: (1) Remittal: Send back for retrial with proper parties joined—appropriate when: joinder will cure defect, case deserves resolution on merits, and amendments are manageable. (2) Strike out: Dismiss action—appropriate when: amendments would be extensive/complicated, retrial impractical, or refiling is better solution. (3) Appellate joinder: Add omitted party at appellate level—appropriate when: possible without prejudice, avoids retrial, and party can participate meaningfully on appeal. (4) Find non-joinder not necessary: Hold omitted party wasn’t necessary—appropriate when: complete relief possible without them, their interests not fundamentally affected, and non-joinder doesn’t defeat the cause. Choice depends on: extent of amendments needed, prejudice to parties, efficiency considerations, and whether complete justice is achievable. This flexibility serves: avoiding unnecessary retrials, doing justice efficiently, and tailoring remedies to circumstances. Courts assess: can defect be cured? how? what’s most just and efficient remedy? The framework provides structured approach to joinder defects discovered on appeal.