CHIEF AUGUSTINE AGORUA & ORS v. BENJAMIN OBIORA & ORS
(2013)LCN/6132(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of April, 2013
CA/OW/270/2010
RATIO
PARTY: REASONS FOR MAKING A PERSON A NECESSARY PARTY TO A SUIT
It is settled that one fundamental reason which makes it necessary to make a person a party to an action is to make him bound by the result of the action. In the circumstances, the 10th and 11th Respondents are necessary parties and ought to have been joined for effective determination of the issues before the court. It is the Law that necessary parties are all those who claim some share or interest in the subject matter of the suit, or who may be affected by the result and those whose presence before the court may be necessary in order to enable the court effectively and completely adjudicate upon and settle all the questions involved or in controversy. See Registered Trustees of N.A.C.H.P.N. & Ors vs. M & H.W.U.N & Ors (2008) 1 SC (III) 1 @ 74. Also the Supreme Court in Kalu vs Uzor (2004) 12 NWLR (PT 886) 1 @ 33 explained necessary parties as those who are not only interested in the subject matter of the proceedings but also those 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 parties must be a question which cannot be properly settled unless they are parties to the action instituted by the Plaintiffs. See also Bwacha vs Ikenga (2011) 3 NWLR (PT 1235) 610.PER UWANI MUSA ABBA AJI, J.C.A.
PARTY: NECESSARY PARTIES: WHOSE DUTY IS IT TO JOIN A NECESSARY PARTY TO A SUIT
The position of the law reiterated over time and again is that, it is the duty of the Plaintiff to join all necessary parties whose presence would be crucial to the resolution of the suit. See Adisa vs Oyinwola (2000) 10 NWLR (PT 676) 116. It is most proper to join a necessary party in order to have a just decision. See Boniface Nnorodim vs Eze Paul Ezeani (2001) 5 NWLR (PT 706) 204. In the instance case, the Appellants ought to have joined the 10th and 11th Respondents in the suit since Exhibits B and C which emanated from them, that is, the suit cannot be effectually dealt with without hearing from them and to that extent, their presence cannot easily be dispensed with. See Nnamani vs Nnaji (1999) 7 NWLR (PT 610) 313 @ 330; and Green vs Green (1987) 3 NWLR (PT 6) 480.PER UWANI MUSA ABBA AJI, J.C.A.
CETIORARI: WHERE DOES IT LIE
It is settled law that certiorari lies to the High Court to quash the orders or the proceedings of an inferior tribunal which has acted in excess of its jurisdiction, and that although the remedy was in early times limited to courts in the normal way, it has since extended to other authorities or bodies exercising judicial or quasi judicial powers. See R. V. Electricity Commissions (1924) I KB 171.PER UWANI MUSA ABBA AJI, J.C.A.
CETIORARI: WHERE DOES IT NOT LIE
Certiorari does not lie in respect of Executive or Administrative Acts, but only of judicial or quasi judicial acts. It is probably true to say that the courts have been readier to issue the wit of certiorari to established bodies whose function is primarily judicial, even in respect of acts that approximate to what is purely administrative than to ministers or officials whose function is primarily administrative even in respect of acts that have same analogy to the judicial act. See Federal Military Government vs. Governor Mid-Western State (1973) All NLR 930; (1973) 12 SC 19.PER UWANI MUSA ABBA AJI, J.C.A.
CETIORARI: THE MAIN CONCERN OF THE COURT
Generally, in certiorari proceedings, the court is mainly concerned with whether the record of the facts showed errors of jurisdictional irregularities. Put in another way, a writ of certiorari lies at common Law to remove the proceedings of inferior courts of record or other persons or bodies exercising judicial or quasi judicial functions for the purpose of being quashed. It may be an alternative to appeal and serve as a means of controlling inferior courts or tribunal. It could also be employed to quasi proceedings conducted without jurisdiction or in excess of it. See Ortese vs Military Governor of Benue State (1991) 4 NWLR (PT 183) 102; Oduwale vs Famakinwa (1990) 4 NWLR (PT.143) 239 @ 252; and Ajayi vs. S.E.C. (2009) 13 NWLR (PT.1157) 1 @ 27.PER UWANI MUSA ABBA AJI, J.C.A.
JURISDICTION: THE EFFECT OF A COURT NOT COMPLYING WITH PRE CONDITIONS FOR THE EXERCISE OF A COURT’S JURISDICTION
In other words, the Appellants have not complied with or the pre conditions for the exercise of the court’s jurisdiction have not been complied with and this robs the Lower Court of any competence and the jurisdiction to entertain the application before it. See Madukolu vs. Nkemdilim (1962) 1 ALL NLR 587 at 594; Tukur vs. Governor Gongola State (1989) 4 NWLR (PT.117); Saude vs. Abdullahi (1989) 4 NWLR (PT.116) 387 at 421; and Ohakim vs. Agbaso (2011) ALL FWLR (PT 553) 1813. It is for the reasons herein above stated that I hold that this appeal lacks merit and it is hereby dismissed.
There is no order as to costs.PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN I. OKORO Justice of The Court of Appeal of Nigeria
HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF AUGUSTINE AGORUA
2. ADIZUA AHAEZE
3. SUNDAY UZOMA
(For themselves and as representing other members of Obua and Agorua families,
Umudanike village, Oguta L.G.A. except the 1st – 8th Respondents) – Appellant(s)
AND
1. BENJAMIN OBIORA
2. BERNADR ONYEMIZE
3. SUNDAY UDEMBA
4. DENNIS ONYEMIZE
5. OBINNA ONYEMIZE
6. EJIKEME NSOFOR
7. IFEANYI OBEMIZE
8. CHRISTOPHER NSOFOR
9. NIGERIA AGIP OIL COMPANY
10. OGUTA LOCAL GOVERNMENT
11. ATTORNEY GENERAL IMO STATE – Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory decision of the High Court of Imo State of Nigeria in Suit No. HOG410/0/2005, presided over by Hon, Justice P.C. Ikpeama and delivered on the 24th day of November, 2008 striking out the motion filed by the Plaintiffs/Appellants to quash certain letters made during the pendency of the suit.
The Appellants in this suit were the Plaintiffs at the Lower Court while the 1st – 9th Respondents were the Defendants. The 10th and 11th Respondents were the bodies that made the letter sought to be quashed. The Appellants filed this suit suing for themselves and as representing other members of Obua and Agorua families, Umundanike village, Oguta L.G.A except 1st – 9th Defendants/Respondents claiming jointly and severally as follows:
(a) A declaration that the Plaintiff (sic) as joint owners of the farmland known as and called Okwurukwu land in Umundanike village, Oguta Local Government Area -wherein Nigeria Agip Oil Company (NAOC) located its wells 1, 4/6/8, 5/7, West 2, West 3 and flow station are entitled to nominate or appoint persons as Attorneys or contact men to represent them in all matters, dealings or negotiations with NAOC in respect of any compensation or benefit whatsoever due to the Plaintiffs from NAOC over its use and occupation of the said land.
(b) A declaration that the plaintiffs having duly exercised their rights as owners of the said land and appointed LONGINUS ADIZUA, AUGUSTINE ONYEBUCHI AGOGUA, OKECHUKWU NWOKOCHA and CHUKWUDI, OGBONNA as their contact men in all matters, dealings or negotiations over the said land with the 9th Respondent, the said appointment remains extant and valid until it is revoked by the Plaintiffs or it expires through effluxion of time and it is not renewed.
(c) An Order of perpetual injunction restraining the 1st – 8th Defendants from parading or masquerading or holding themselves out as Attorneys or contact men for the Plaintiffs or Obua or Agorua families.
(d) An Order of perpetual injunction restraining the 1st – 8th Defendants from interfering with in any manner whatsoever the right of the Plaintiffs to appoint Attorneys or contact men in respect of all matters relating to the 9th Respondent’s use and occupation of the said land.
(e) An Order of Perpetual injunction restraining the 9th Defendant from dealing with the 1st – 8th Defendants either as the Plaintiffs’ attorneys or contact men or that of Obua or Agorua families.
While the suit was pending, 10th – 11th Respondents purported to have written Exhibits B and C which compromised the subject matter in dispute by awarding the land where Wells, 4, 6 and 8 are situate to some families,
The Appellants on the 4th/8/2007 filed a motion on notice dated 31st/7/2007 praying the Honourable Court as follows:
An Order quashing the letters with Ref. No. GH/DGov/S.130/S/15/11/102 of 8th of May, 2007 hereby attached as Exhibit ‘B’ and the letter with Ref. No. OGLC/AD/629/11/101 of 19th/6/2007 hereby attached as Exhibit ‘C’.
The 11th Respondent filed a counter affidavit on the 6th/5/2008 together with a written address in opposition to the motion filed on the 31st/7/2009. The Appellants filed a further affidavit on the 4th/7/2008.
In a considered ruling delivered on the 24th day of November, 2008, the Learned trial judge struck out the application for being incompetent.
It is against the said decision that the Appellants are dissatisfied and appealed to this court vide a Notice of Appeal dated and filed on the 3rd day of December, 2008, upon two grounds of appeal which are hereby reproduced without their particulars as follows:
GROUNDS OF APPEAL
1. Error in Law:
The Court below erred in law when it held that:
“The (10th & 11th Respondents) are not parties in this suit and I am of the humble view that they cannot be properly brought in the suit by means of this motion to set aside which is not an originating process.”
2. Error in Law:
The Court below erred in law when it held that:
“Since the Applicants did not obtain leave before bringing this motion, the application is incompetent and it is hereby struck out.”
Parties filed and exchanged briefs of argument. The Appellants’ brief was settled by Mike Onyekachi, Esq. Learned Counsel who nominated a sole issue for determination to wit:-
Whether the learned trial court was right when it held that it can quash or set aside the letters only by means of an originating processes.
The 1st to 8th Respondent’s brief of argument settled by N. I. Ikenna Emmanuel (Mrs.) also nominated a sole issue for determination to wit:
Whether the Lower Court was right in striking out the Appellants’ motion dated 31st July, 2007 to quash letter No. GH/DGov/S.130/1/1.5/11/102 (Exhibit B) and letter No. OGLG/AD/629/11/101 (Exhibit C) made by the 2nd set of Respondents who have not been properly joined as parties to this suit and of which no leave was obtained by the Appellants for being incompetent.
The 9th Respondent’s brief of argument was settled by Chief J. Ebuzo Onyenucheya, Esq. who nominated a lone issue for determination to wit:
Whether the Lower Court was right to strike out the application for certiorari to have it quash (sic) the letters written during the pendency of the substantive suit by persons who are not parties to the suit and without seeking for and obtaining leave to so apply.
The 11th Respondent’s brief, settled by B, U. Obieze, Esq. nominated the lone issue for determination to wit:
Whether the Lower Court was right in striking out the Appellants motion dated 31st day of July, 2007 to quash letter No. GH/DGov/S.130/115/1/12 dated 18th May, 2007.
I have considered the issues formulated by the Appellants and the Respondents and shall adopt the sole issue formulated by the Appellants in the determination of the appeal to wit:-
Whether the trial court was right when it held that it can only quash or set aside the letters only by means of an originating processes.
At the hearing of the appeal on the 18th day of March, 2013, Learned Senior Counsel for the Appellants Dr. Livy Uzoukwu, SAN, adopted and relied on the Appellants’ brief of argument dated 17th May, 2011 and filed on the 28th June, 2011 and urged the Court to allow the appeal.
Dr. Nwaiwu, SAN for the 1st to 8th Respondents, adopted and relied on the 1st – 6th Respondents brief of arguments dated 26th September, 2011, filed on the 4th/10/2011 but deemed properly filed on the 27th day of November, 2012. He also relied particularly on the case of Saude vs. Abdullahi (1989) 4 NWLR (PT 116) 187 and urged the Court to dismiss the appeal.
Mr. Onyenucheya, Esq. for the 9th Respondent adopted and relied on the 9th Respondent’s brief of argument dated 27th/11/2012 and filed on the 4th/12/2012 and urged the Court to dismiss the appeal. The Honourable Attorney General, Imo State adopted and relied on the 11th Respondent’s brief of argument dated 1st/6/2011 and filed on the same day and urged the Court to dismiss the appeal. He said though they did not file a brief for the 10th Respondent, they support the judgment of the Lower Court and urge the Court to dismiss the appeal.
In arguing his lone issue for the Appellants, Mike Onyekachi, Esq, submitted that the 1st – 9th Respondents and the 10th Respondent did not file any affidavit in opposition to the motion to quash Exhibits B and C and submitted that the law is clear that since the averments in the affidavit in support of the motion to quash Exhibits B and C were not challenged, it is presumed that the facts in the affidavit are not contradicted and therefore deemed admitted. He referred to the case of UNIBIZ (NIG.) Ltd vs. Commercial Bank Ltd (2005) ALL FWLR (PT 267) 1378 at 1386.
Learned counsel therefore submitted that the Lower Court was wrong when it held that the appropriate mode to quash Exhibits B and C was through certiorari proceedings. It is the view of Learned Counsel that the nature of the application is not in the nature of judicial review in order to attract the use of certiorari proceedings which is a remedy that lies only to quasi-judicial acts. It is also his submission that certiorari will not lie where the body was not acting in judicial or quasi judicial capacity. That it does not lie to quash a mere ministerial, administrative or executive act as in the instant case where Exhibits B and C are products of administrative function by the executive bodies. He cited in support the case of Lagos State Judicial Service Commission vs. Kaffo (2008) ALL FWLR (PT 418) 327 at 329. He therefore submitted that this application is properly initiated by the due process of law.
Learned Counsel also submitted that the Respondents are aware of the pending suit but went ahead to compromise and interfered with same and made Exhibits ‘B’ and ‘C’ and that this court has right to invoke its disciplinary jurisdiction to set aside or quash the said documents. He also submitted that the court on being aware of the said documents can set it aside on its own motion because the documents offends Section 91(3) of the Evidence Act. He relied on the cases of Ezegbu vs. FATB (1992) 1 NWLR (PT 220) 899; Registered Trustees of Apostolic Church vs. Olowolemi (1990) 4 NWLR (PT 158) 514 at 537.
It is also the view of Learned Counsel that where a party is entitled to different modes of enforcing its complaints, any mode taken is not incompetent rather what is important is that any mode that is understood deserves to be entertained. He referred to Federal Republic of Nigeria vs. Ifegwu (2003) FWLR (PT 167) 703 to also submit that even if a wrong mode was used, that does not foreclose a Court from granting a remedy which exist, citing also the cases of Oruk Anam L.G. vs. Ikpa (2005) ALL FWLR (PT 249); Federal Government of Nigeria vs. Zebra Emergy Ltd (2002) FWLR (PT.92) 1749 or (2002) 18 NWLR (PT 789) 162 at 204 – 205. The Court was urged to hold that a Motion on Notice to quash Exhibits B and C was properly brought and to resolve the issue in favour of the Appellants.
In their response, the 1st – 8th Respondents submitted that the arguments proffered by the Appellants as well as legal authorities cited are misconceived in law. It is his view that the Appellants failed to advert to the legal position that the prerogative writ of certiorari which applies in the case is begun with motion exparte for leave as a condition precedent for the granting of the Order of Certiorari to lie to quash any proceedings. He cited Order 4 Rules 1(1), (2) and Order 43 Rules 2, 3 (1) and (2) of the Imo State High Court (Civil Procedure) Rules 2008. He submitted that the legal effect of this grave omission is that the application for certiorari brought by the Appellants was grossly incompetent and the court is not competent to entertain the application. He referred to Madukolu vs. Nkemdilim (1962) ALL NLR 594 or (1962) 2 SC NLR 341. He further submitted that the failure of the Appellants to obtain leave affected the jurisdiction of the Court to entertain the certiorari proceeding brought by the Appellants as the Court lacked the jurisdiction to entertain same.
Learned counsel submitted that the joinder of person or persons as parties to an action is that a party joined would be bound by the result of the action and the action must contain a question or questions which cannot be effectually, effectively or completely settled without his joinder. Reliance was placed on these cases: Uku vs. Okumagba (1974) SC 35; Yakubu vs. Governor Kogi State (1995) 8 NWLR (PT 414) 386 at 402; Green vs. Green (1987) 3 NWLR (PT 61) 480; and Okoli vs. Ojiakor (1997) 1 NWLR (PT 479) 48. He submitted that in the instant case, the 10th and 11th Respondents are not parties to the Suit and ought to have been joined as parties to the Suit before bringing the application to quash Exhibits B and C.
Learned Counsel also submitted that certiorari is one of the prerogative remedies by which an ultra vires act may be challenged usually by an order of Court issued by the High Court to bring to the High Court decisions of inferior tribunals or bodies in order that their legality may be investigated, but that this is not the position in the instant case. The following cases were referred to Queen Vs. District Officer (1961) ALL NLR 51 at 56; Ayinde vs. Adisa (1965) NMLR 408 at 409; Resident Ibadan vs. Langunju (1954) 14 WACA 549 at 552; Onuwole vs. Lamikin, W.A. (1990) 4 NWLR (PT 143) 239 at 244 – 245; R vs. Northhumberland and Compensation Appeal Tribunal Ex parte shaw (1952) 1 AER 122; and Nebedum vs. Labisi (2001) 1 NWLR (PT 693) 82 at 94 – 95. Learned Counsel finally submitted that the 10th and 11th Respondents not having been properly joined and coupled with non-compliance with the procedural Law, deprives the Court of the competency to entertain the matter as it lacks the requisite jurisdiction citing Madukolu vs. Nkendilim (Supra); Saude vs. Abdullahi (1989) 4 NWLR (PT 116) 187; and Durnode vs. The State (2000) 12 SCNJ 1 at 8. The Court was urged to resolve the issue in the affirmative in favour of the Respondents.
In his argument Learned Counsel for the 9th Respondent submitted that the Lower Court was right to have refused the application of the Appellants for certiorari to quash the letters referred to as Nos. GH/DGov/S.130/S.15/11/102 and OGLG/AD/629/11/101 which Exhibits are B and C respectively. He submitted that the letters were written by 10th and 11th Respondents and they were not parties to the dispute at the Court below and the Appellants did not make them parties before seeking the relief against them. Learned Counsel referred to Order 13 Rules 4 and 7 of the Imo State High Court (Civil Procedure) Rules 2008 and the case of Babayeju vs. Ashamu (1998) 1 KLR (PT 69) 186 to submit that a Plaintiff can join whoever he chooses and to make him bound by the result of the action. It is his view that the Appellants ought to have joined the 10th and 11th Respondents since they allege that relief of certiorari exist against them and are necessary parties and ought to have been joined for effective determination of the issues before the court. He relied on the case of Olawuyi vs. Adevemi (1990) 4 NWLR (PT 147) 746 at 772. It is also his view that since the documents originating from the 10th and 11th Respondents cannot be effectually dealt with without hearing from them, their presence cannot easily be dispensed with in the proceedings. He referred to the case of Nnamani vs. Nnaji (1999) 7 NWLR (PT 610) 313 at 330; and Green vs. Green (1987) 3 NWLR (PT 6) 480. He argued in line with 1st – 8th Respondents on the issue of joinder of parties. He supported his argument with the following cases: Oluwa Glass Co. vs. Ehinlanwo (1990) 7 NWLR (PT 160) 14 at 31; Unegbu vs. Medland Entr. Ltd (1990) 6 NWLR (PT 156) 306 at 316; and Eronini vs. Iheuko (1989) 2 NWLR (PT 101) 36 at 61; and Order 40 Rules 1 and 3(1) of the Imo State High Court (Civil Procedure) Rule 2008. He further submitted that any process not commenced in conformity with prescribed procedure breaches a condition precedent in accessing the Court and such a process is incompetent before the Court and cannot ignite the jurisdiction of the Court. He relied on Saude vs. Abdullahi (1989) 4 NWLR (PT 116) 387; Anita vs. Asuquo (1990) 5 NWLR (PT 151) 446; and Margit vs. University of Agriculture. Makurdi (2006) ALL FWLR (PT 208) 1242 at 1263 to further submit that the application is incompetent and the Court was urged to sustain the holding of the Lower Court.
In his argument, Learned Counsel for the 11th Respondent, B. U. Obieze, Esq. submitted that where a law has provided for procedure, manner or method of doing an act or performing a public duty, any other procedure is exclusive and failure to adhere to the procedure/method so prescribed renders the act done null and void. Reliance was placed on the cases of C.C.B. vs. A.G. Anambra (1992) 10 SCNJ 137; Arubo vs. Aiyeleru (1993) 2 SCNJ 90 at 102: and Margit vs. University of Agriculture Makurdi (2006) ALL FWLR (PT 208) 1242 at 1263. It is his view that the proper application and procedure to quash the Exhibit would either be by Judicial review or for certiorari whereby the leave of the Court would be sought under the relevant Rules of the High Court (Civil Procedure) Rules and not by a mere motion. He submitted that Exhibit B is an administrative action and the findings and recommendations of the sub-committee are accepted by the Imo State Boundary Committee and cannot be quashed by mere motion on notice except by way of either judicial review or certiorari. It is his view that the motion amounts to non-compliance with the due process of law and when procedural requirements have not been complied with or the pre-conditions for the exercise of jurisdiction have not been complied, the defect is fatal to the competence of the trial Court to entertain the suit. He relied on the following cases: Ohakim vs. Agbaso (2011) ALL FWLR (PT 553) 1813; Madukolo vs. Nkemdilim (1962) ALL NLR 587 at 594; Saude vs. Abdullahi (1989) 4 NWLR (PT 116) 387 at 421: and Tukur vs. Governor of Gongola State (1989) 4 NWLR (PT 117) 157. He also submitted that the 11th Respondent was not a party to suit No. HOG/40/2005 between Chief Gogo Adizua & 2 Ors vs. Benjamin Obiara & 9 Ors and could not have known of the pending suit. He urged the Court to dismiss the appeal.
I have considered the submissions of Learned Counsel for the Appellants and that of the Respondents on this lone issue on whether the trial court was right when it held that it can quash or set aside the letters only by means of an originating process, the authorities cited in support and the relevant Rules of Court.
The Appellants were the Plaintiffs/Applicants at the Lower Court. The 1st to 9th Respondents were the Defendants while the 10th and 11th Respondents were not parties at all to the suit before the Lower Court. The 9th Defendant/Respondent has its establishments at the land the subject matter of the dispute between the Appellants and the 1st – 9th Respondents. While the suit was pending, the 10th and 11th Respondents wrote letters that touched on the subject in dispute before the High Court. The Appellants filed a motion urging the Lower Court to quash the said letter. The Lower Court struck out the motion for being incompetent. The question here is whether considering the circumstances of the case, the motion to quash Exhibits B and C is necessary when the 10th and 11th Respondents who authored the documents were not parties to the suit at the Lower Court.
It is contended by the respective Respondents that the 10th and 11th Respondents were not parties in the suit at the Lower Court and that the motion to join them in the suit for the purpose of quashing the said letters is incompetent the same having been done without the leave of the Lower Court.
The fact that the 10th and 11th Respondents are not parties before the Lower Court is clearly not in dispute. The Appellants themselves have attested to this fact. The suit was being contested between the Appellants as Plaintiffs in the Lower Court and the 1st to 9th Respondents as Defendants. The 10th and 11th Respondents having made Exhibits B and C that comprised the pending suit before the Lower Court have become necessary parties and their joinder in the pending suit becomes necessary in view of the compromising letters that emanated from them. It is settled law that where there is a prescribed procedure for commencing an action, any process not commenced in conformity with the prescription breaches a condition precedent in accessing the Court.
Order 13 Rules 4, 6(1) and 7 of the Imo State High Court Civil Procedure Rules, 2008 provide as follows
Order 13 Rule 4 “Any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment”.
Rule 6(1) “It shall not be necessary that every defendant shall be interested as to all the reliefs prayed for, or as to every cause of action included in any proceedings against him”.
Rule 7 “A claimant may at his option join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes”.
The Rules as reproduced above provides for the joinder of a person as defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative and it shall not be necessary that every defendant shall be interested as to all the reliefs prayed for or as to every cause of action included in the proceedings against him.
It is settled that one fundamental reason which makes it necessary to make a person a party to an action is to make him bound by the result of the action. In the circumstances, the 10th and 11th Respondents are necessary parties and ought to have been joined for effective determination of the issues before the court. It is the Law that necessary parties are all those who claim some share or interest in the subject matter of the suit, or who may be affected by the result and those whose presence before the court may be necessary in order to enable the court effectively and completely adjudicate upon and settle all the questions involved or in controversy. See Registered Trustees of N.A.C.H.P.N. & Ors vs. M & H.W.U.N & Ors (2008) 1 SC (III) 1 @ 74. Also the Supreme Court in Kalu vs Uzor (2004) 12 NWLR (PT 886) 1 @ 33 explained necessary parties as those who are not only interested in the subject matter of the proceedings but also those 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 parties must be a question which cannot be properly settled unless they are parties to the action instituted by the Plaintiffs. See also Bwacha vs Ikenga (2011) 3 NWLR (PT 1235) 610.
The position of the law reiterated over time and again is that, it is the duty of the Plaintiff to join all necessary parties whose presence would be crucial to the resolution of the suit. See Adisa vs Oyinwola (2000) 10 NWLR (PT 676) 116. It is most proper to join a necessary party in order to have a just decision. See Boniface Nnorodim vs Eze Paul Ezeani (2001) 5 NWLR (PT 706) 204. In the instance case, the Appellants ought to have joined the 10th and 11th Respondents in the suit since Exhibits B and C which emanated from them, that is, the suit cannot be effectually dealt with without hearing from them and to that extent, their presence cannot easily be dispensed with. See Nnamani vs Nnaji (1999) 7 NWLR (PT 610) 313 @ 330; and Green vs Green (1987) 3 NWLR (PT 6) 480.
In the instant case, the Appellants did not seek for the leave of the lower court to join the 10th and 11th Respondents in the suit. They just brought them as 10th and 11th Respondents on their own volition in the motion seeking to quash Exhibits B & C. They just brought them in as a matter of course as if they were parties in the pending suit. The Appellants cannot just do that. It is wrong in law. The joinder of the 10th and 11th Respondents by the Appellants at their whims and caprises without recourse to the relevant rules of court is improper and therefore wrongly done and I so hold.
The Appellants application before the lower court seeks for the order of court quashing the letters with Reference No. GH/DGOV/8.130/8.15/11/102 of 18th May 2007, Exhibit B and letter with Reference No. OGLG/AD/629/11/101 of 9th June, 2007. It is clear from the contents of Exhibits B and C, they are product of administrative action and cannot be quashed by a mere motion. Order 40 of the Imo State High Court (civil procedure) Rules 2008 provides for application for judicial, for the prerogative wits of mandamus, prohibition or certiorari and Rule (1) clearly provides that no application for judicial review shall be made unless the leave of the court has been obtained in accordance with the Rule. It is clear no such leave was obtained in the instant case.
It is settled law that certiorari lies to the High Court to quash the orders or the proceedings of an inferior tribunal which has acted in excess of its jurisdiction, and that although the remedy was in early times limited to courts in the normal way, it has since extended to other authorities or bodies exercising judicial or quasi judicial powers. See R. V. Electricity Commissions (1924) I KB 171.
Certiorari does not lie in respect of Executive or Administrative Acts, but only of judicial or quasi judicial acts. It is probably true to say that the courts have been readier to issue the wit of certiorari to established bodies whose function is primarily judicial, even in respect of acts that approximate to what is purely administrative than to ministers or officials whose function is primarily administrative even in respect of acts that have same analogy to the judicial act. See Federal Military Government vs. Governor Mid-Western State (1973) All NLR 930; (1973) 12 SC 19.
Generally, in certiorari proceedings, the court is mainly concerned with whether the record of the facts showed errors of jurisdictional irregularities. Put in another way, a writ of certiorari lies at common Law to remove the proceedings of inferior courts of record or other persons or bodies exercising judicial or quasi judicial functions for the purpose of being quashed. It may be an alternative to appeal and serve as a means of controlling inferior courts or tribunal. It could also be employed to quasi proceedings conducted without jurisdiction or in excess of it. See Ortese vs Military Governor of Benue State (1991) 4 NWLR (PT 183) 102; Oduwale vs Famakinwa (1990) 4 NWLR (PT.143) 239 @ 252; and Ajayi vs. S.E.C. (2009) 13 NWLR (PT.1157) 1 @ 27.
In view of the position of the law as pronounced in the authorities cited above, I am of the firm view that the action of the 10th and 11th Respondents as contained in Exhibits B and C are purely administrative actions of the Executive that is not under the purview of the writ of certiorari.
Based on the aforementioned reasons, I am of the firm view that due process of law have not been followed in bringing the application at the Lower Court. In other words, the Appellants have not complied with or the pre conditions for the exercise of the court’s jurisdiction have not been complied with and this robs the Lower Court of any competence and the jurisdiction to entertain the application before it. See Madukolu vs. Nkemdilim (1962) 1 ALL NLR 587 at 594; Tukur vs. Governor Gongola State (1989) 4 NWLR (PT.117); Saude vs. Abdullahi (1989) 4 NWLR (PT.116) 387 at 421; and Ohakim vs. Agbaso (2011) ALL FWLR (PT 553) 1813. It is for the reasons herein above stated that I hold that this appeal lacks merit and it is hereby dismissed.
There is no order as to costs.
JOHN INYANG OKORO, J.C.A.: In this interlocutory appeal, I read before now the judgment of my learned brother UWANI MUSA ABBA AJI, JCA just delivered and I agree that this appeal lacks merit and ought to be dismissed. I agree that the Appellants have not complied with the conditions precedent for the exercise of the lower court’s jurisdiction. I adopt the views expressed in the lead judgment of my learned brother UWANI MUSA ABBA AJI, JCA as mine. I too, dismiss this appeal. I also make no order as to costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in draft form, the judgment delivered by my Learned brother; UWANI MUSA ABBA AJI, JCA.
The issues that called for determination in this appeal have been exhaustively considered by my Learned brother. I agree with his reasoning and conclusions thereon. I have nothing else useful to add. I accordingly agree and do hold that this appeal has no merit. It is hereby dismissed.
I abide by the order on costs.
Appearances
Di. Livy Uzoukwu, SAN, with him, C. K. Uba, Esq. For Appellant
AND
Dr. Amaechi Nwaiwu, SAN, with him, L. O. Unanwa (Miss), and N. D. Iwu (Mrs.) for the 1st to 8th Respondents.
J.E. Onyenucheya, Esq. for 9th Respondent
S. A. Njoku, Esq., A. G. Imo State, with E. C. Aguta (Mrs.) D. L. D., I.I. Amadi (Mrs.) C.S.C. and S. U. Igwe (Miss) S. C. for the 10th & 11th Respondents For Respondent
