ILORIN WEST LOCAL GOVERNMENT v. ALH. MEMUDU JIMOH ORIRE & ORS (2012)

ILORIN WEST LOCAL GOVERNMENT v. ALH. MEMUDU JIMOH ORIRE & ORS

(2012)LCN/5438(CA)

In The Court of Appeal of Nigeria

On Monday, the 4th day of June, 2012

CA/IL/56/2011

RATIO

APPEAL: GROUND OF APPEAL: WHEN GROUND OF APPEAL IS SIMPLY THAT OF LAW

On his part, Nnaemeka-Agu, JSC, in the case of Paul Nwadike & Ors. v. Cletus Ibekwe & Ors (1987) 72 S.C 14 at pp. s2-86; when equally confronted with the situation we have found ourselves, relied on the dictum of Eso, JSC, in Ogbechie & ors. v. Gabriel Onochie & ors (supra) and held thus: “I must pause here to observe that it is a recognized fact that the line of distinction between law simpliciter and mixed law and fact is a very thin one. But one does not convert a ground of mixed law and fact into a ground of law by simply christening it “error in law” or “misdirection in law.” It is always necessary to construe the ground with particulars thereof.” The learned Law Lord of blessed memory in that illuminating Judgment, after a careful analysis of other decided foreign and local cases like Clarke v. Edinburgh e.t.c, Tramways (1919) S.C. (H.L.) 35, Fatoyinbo v. Williams (1956) 87; Edwards (Inspector of Taxes) v. Bairstow & Anor. (1955) All E.R.48 at 56; Cooper v. Stubbs (1925) 2K.8. 277 and Currie v. Inland Revenue commissioners (1921) 2 K.B. at 536 and adopting subsequently the dictum of Eso, JSC, in the case cited above; held that a ground which complains that the Judgment is against the weight of evidence is a ground of fact and that findings of fact are matters within the province of the court of trial. He took a further view that in general terms, it can be said that all Grounds of Appeal which raise facts which warrant some determination either way are Grounds of fact. Finally, he posited that where, however, the question raised by the Ground is one of law as applied to disputed facts; or the Ground raises partly law and partly facts, it is a ground of mixed law and fact. He then advised that the Ground with its particulars ought to be regarded as a whole. Turning specifically to the question as to when a Ground of Appeal is that of law simpliciter, His Lordship went further to assert as follows: “(i) It is an error in law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors; See O’ Kelly v. Trust-house Forte P.I.C. (1983) 3 All E.R. at p.468. (ii) Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases, and inferences drawn therfrom are grounds of law: Ogbechie v. Onochie (supra) at 491 to 492. (iii) Where a ground deals merely with a matter of inference even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts. Edwards (Inspector of Taxes) v. Bairstow & Anor, (supra) page 55; H.L. For, for many years, it has been recognized that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary fact, are matters upon which an appellate court is as competent as a court of trial: see Benmax v. Austin Motor Co. Ltd. (1945) All E.R. 326 at p.327. (iv) Where a tribunal states the law on a point wrongly, it commits an error in law.PER IGNATIUS IGWE AGUBE, J.C.A

APPEAL: GROUND OF APPEAL: WHETHER GROUND OF APPEAL AND ISSUES FOR DETERMINATION MUST BE RAISED FROM JUDGMENT

it is also trite that grounds of appeal and issues formulated there from for determination which do not emanate from the Judgment appealed against are incompetent and ought to be struck out. see the cases of NAB vs. Comex Ltd. (1996) 6 N.W.L.R. (pt.608) 648 at 668 paragraph E Makinde v. Adeogun (2009) 1 NWLR (Pt.1123) 575; Salami v. Muhammed (2009) 9 N.W.L.R. (pt 673) 469 and Scheeps v. M.Z. “S. Araz- (2000) 15 N.W.L.R, (pt. 691) 622. The need for Grounds of appeal and issues formulated there from to arise from the ratio decidendi of the court or tribunal against which decision is being appealed has been stressed by the supreme court in Saraki v. Kotoye (1992) 9 N.W.L.R. (pt 261) 156 at 184 inter alia: “It is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision – see Egbe v. Alhaji (1990) 1 NWLR (pt.128) 546 at 590. Grounds of Appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. However meritorious the ground of appeal, based either on points of critical constitutional importance of general public interest, it must be connected with a controversy between the parties. This is the precondition for the vesting of the judicial powers of the constitution in the courts – See Senator Adesanya v. President of Nigeria (1981) 1 NCLR 358. Like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment appealed against.” See Ogunbiyi v. Ishola (1996) 5 SCNJ 143 at 154 and also Alakija v. Abdulai (1998) SCNJ 1.” Indeed, in Ikweki v. Ebele (2005) 2 SC (Pt.11) 96 at 108 – 109, Oguntade JSC quoted with approval the dictum of Iguh JSC in Atoyebi v. Govt. Of Oyo State (1994) 5 NWLR (pt.344) 290 at 305 that:- An appeal presupposes the existence of some decision which is appealed against on a given point or points. Where therefore there is no complaint in respect of a decision that has arisen from a judgment appealed against, such a decision may not form the basis of an issue for determination by an appellate court. The appellate jurisdiction of this court inter alia is to review the decisions/and or judgments of the court of appeal. If therefore, an issue never arose nor called for the determination of the court of Appeal which therefore did not consider the issues, it seems to me that such an issue may nor form the basis of an appeal to the Supreme Court and a purported appeal to this court on such an issue will be incompetent and may be struck out. See Uhunnwangho v. Okojie (1989) 5 NWLR (pt.122) 471 at 491.” The learned Oguntade JSC, on his part added at page 110 paragraphs 10 to 15 of the Report that: “It only remains for me to say that the principle enunciated in the above cases applies with equal force to appeals emanating from the High court to the court of Appeal. It is impermissible for a person to found his right of appeal from the decision of the High Court to the Court of Appeal on a matter that did not arise in tie course of proceedings before the High court.” See WAEC v. Adeyanju (2008) 34 NSCQR 732; Veepee Ind. Ltd. v. C.L.L. (2008) 34 NSCQR 904.PER IGNATIUS IGWE AGUBE, J.C.A

APPEAL: GROUND OF APPEAL: GROUNDS OF THAT COMPLAINS ABOUT MISDIRECTION IN LAW

APPEAL: APPEAL AS OF RIGHT: WHEN AN APPEAL WILL BE AS OF RIGHT

Now, Section 242(1) of the 1999 Constitution provides thus: “subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or that High Court or the Court of Appeal.” Section 241(1) on the other hand provides that: “An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases. (a) Final decisions in any civil or criminal proceedings before the Federal High court or a High court sitting at first instance; (b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.” In Investors International (London) Ltd. v. First Bank of Nigeria Plc. (2008) ALL FWLR (pt, 405) 7770, 1782 paras. B-C relied upon by the learned Counsel for the 1st and 2nd Respondents; per Salami, JCA (as he then was) delivering the lead Judgment of this Court, Lagos Division, had cause to pronounce on an objection of a similar nature to the one at hand and held first of all on the nature of the Judgment sought to be appealed against; that it did not finally determine the rights of the parties that: “The test whether a decision is final or interlocutory was settled by the supreme court in the case of Akinsanya v. UBA Ltd.(1986) 4 NWLR (Pt.35) 273 where the Supreme Court adopting the test set down in Bozson v. Altricham U.D.C. (1903) 1 QB 574, held the appropriate test to be applied as follows:- ” Does the Judgment or order as made finally dispose of the right of the parties? If a does, then the order is a final order, if it does not, it is interlocutory. See also Blay & Ors. v. Solomon (1947) WACA 175; William Ude & Ors. v. Josiah Agu & Ors. (1961) 1 ALL NLR 65 and Falola v. U.B.N Plc. (2005) 7 NWLR (Pt 924) 405, 149 & 426-7. Learned trial Judge in the circumstance not having disposed of the rights of the parties the decision……PER IGNATIUS IGWE AGUBE, J.C.A

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

Between

ILORIN WEST LOCAL GOVERNMENT Appellant(s)

AND

1. ALH. MEMUDU JIMOH ORIRE
2. SALAWU JIMOH ORIRE
(for and on behalf of themselves and the entire Members of Obanisuwa Village
3. ALH. ADELOGUN UMORU GALADIMA
4. IMAM BABA-ONIRIN GALADIMA
5. LAARO BOLAJI GALADIMA Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A (Delivering the Leading Judgment): This interlocutory Appeal emanated from the decision/Ruling of Hon. Justice M. O. Adewara of the High Court of Justice of Kwara State, sitting at Ilorin Division whereof he dismissed the motion for the joinder of the Applicant as an interested party. On the 5th of May, 2011 after the learned trial Judge had considered the Affidavits and Counter-affidavits of the respective parties together with the Written Addresses of Counsel. His Lordship in his well considered reserved Ruling held at page 55 of the Record of proceedings thus:-
“Finally, I have painstakingly reflected on the arguments canvassed before me by counsel on all sides and I do not hesitate to hold that Ilorin West Local Government is not an interested party in this case and also that the Court can completely and effectually determine the suit without joining Ilorin West Local Government as a Defendant. In consequence, I hold that the motion for joinder lacks merit and facts. It is accordingly hereby dismissed.”
This decision did not go down well with the Applicant, who has now appealed to this Honourable Court by a Notice of Appeal with Seven Grounds dated and filed on the 18th day of May, 2011 (see pages 57-62 of the Records).
Upon transmission of the Record of Appeal hereto, the parties exchanged their respective Briefs of Argument in line with the Rules of this Honourable Court. Goke Akande Esq., who settled the Brief of the Appellant distilled three issues as calling for determination from the seven Grounds of Appeal which are couched and reproduced hereunder as follows:-
“(1). Whether the trial Court was right to have dismissed the Appellants’ application for joinder as an interested party in the proceedings (Grounds 2, 4, 5 & 6).
‘(2). Whether in the determination of the Appellant’s application, the failure and/or refusal of the trial Judge to take into consideration the Appellant’s written reply address has not occasioned a breach of fair hearing and natural justice (Ground 3 & 7).
“(3). Whether a resort to a particular procedure not provided by the procedure not provided by the rule can defeat a party’s right to be heard on (sic) as (an) issue affecting his interest (GROUND 8?).
As for the 1st and 2nd Respondents, Joseph Bamigboye Esq., the learned Counsel who settled their Brief, raised a Preliminary Objection on the competence of the interlocutory Appeal as well as the Grounds thereof on the ground that the Notice includes Grounds of facts the leave of Court which ought to be sought but was not sought before filing them contrary to section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999. We shall deal with the arguments in support of the preliminary objection in due course but suffice it to say that in the alternative; the learned Counsel for the 1st and 2nd Respondents formulated a sole issue which is:
“Whether the dismissal of the appellant’s application for joinder was a judicious and judicial exercise of discretion by the lower court”.
On their part the 3rd-5th Respondents formulated two issues as can be found in pages 4 and 5 of their Respondents’ Brief settled by Ismail Abdul- Azeez Esq. as follows:
“1. Whether the deliberate action of the trial judge to ignore some of the processes filed in the application culminating in this appeal was not an infringement on the fundamental right to fair hearing? (ground 3).
“2. Whether the non-provision of a procedure to be employed in or proceedings would automatically deprive the court of its vires to do substantial justice in a given matter? (Ground 7),”
ARGUMENTS OF APPELLANTS ON THE ISSUES
ISSUE NUMBER 1
Arguing Issue Number I, learned Counsel for Appellant cited the cases of REG. Trustees v. MHWUN (2008) 34 NSCQLR 327 at 368; Oshinrinde v. Ajanogwu (1992) 6 NWLR (pt.246) 756 and African Continental Bank Plc v. Nwaigwe (2001) 7 NWLR (pt.694) 304; which have established the cardinal test for the consideration of Application for joinder and what the Applicant in the circumstances should show for the Court to grant the Application. He then submitted that the Court below erroneously held that since the Claimant/1st and 2nd Respondents did not make out a specific claim against the intervener, then the Application for joinder is defeated when under Order 14 Rule 4 and 6(1) of the Kwara State High Court (Civil Procedure) Rules, 2005; the main consideration is whether the intervener would be bound by the outcome of the case.
The Court, according to the learned Counsel for the Appellant, ignored the uncontroverted evidence and the claims before the lower Court as well as the interest of the Appellant by emphasizing only on damages for trespass as the basis for refusing the application without taking into consideration the Claimants/1st and 2nd Respondents’ principal claim of declaration of title to the land in dispute and the Appellant’s disclosed interest in same. Learned Counsel continued that the ultimate question is whether the Appellant would be bound by the final decision of the lower Court on the issue of declaration of title over the land in dispute. He maintained that the settled evidence by virtue of Exhibit ‘A’ is that the Appellant as the acquisitive authority of the land in dispute in 1975, who resettled the Claimant’s community on part of the land in dispute and some other communities on the acquired land; the Appellant’s joinder: for the just determination of the issue in dispute and for the identification of the area granted the 1st and 2nd Claimants/Respondents, is sine qua non to the justice of the case.
The learned counsel took the view that it is trite that in land matters, once an applicant has disclosed interest in the title of the land in dispute he should be joined and that by the declaration sought, there is no how the interest of the Appellant would not be affected which may necessitate the Appellant either filing a separate suit before the lower Court or be deemed guilty of laches and acquiescence. Learned Counsel further explained that by Exhibit A of the Appellant’s affidavit in support of the motion for joinder, the acquisition and delineation of the vast land, part of which the Appellant also reserved as owner, was on the authority of the Appellant.
It was further argued that from the foregoing, the Appellant has title over some part of the land in dispute and any Judgment against any of the Defendants is Judgment against the Appellant on the issue of declaration of title even if the 1st and 2nd Respondents cleverly did not join the Appellant. Relying on Green v. Green (1987) 3 NWLR (pt 67) 49 at 72; it was submitted that the law contrary to the holding of the lower Court, is whether the Applicant will be affected by the decision in the case and not whether the Claimant has made a specific claim against the Applicant which holding at page 53 lines 20-21 of the Records is a misdirection by the Court’s restrictive construction rather than the broad provision of its Rules on same.
At this juncture, he reproduced Order 14 Rules 4 and 6(1) of the Kwara State High Court (Civil Procedure) Rules, 2005 which according to him the Court below failed to appreciate the unambiguous proviso which is that since the reason for joinder of a party is that such a party may be bound by the result of the suit, the Claimants need not make out all the reliefs against the named Defendant. In this case, learned Counsel posed the question whether even if the Claimants’ claim for ” damages for trespass and wilful destruction of crops….” is directed at a particular class of Defendants (i.e 3rd & 5th Respondents) and which claim the learned trial Judge tagged “personal, (page 54 line 19 of the Records), the same could be said in respect of declaration of title over the said land which in law is a statutory relief. He answered the question in the negative because according to him a declaratory relief being statutory affects the general public and not personal although the Claimants/1st and 2nd Respondents to whom they conceded, can bring a suit in trespass and damages if in possession.
Citing again Rule 4 of Order 14 of the Kwara State High Court (Civil Procedure) Rules; he further argued that what the Court below ought to do was to examine whether its decision on the claim for declaration of title will affect the interest of the Applicant/Appellant rather than inject the principle of transmissibility of a suit in describing the claim as “personal” in nature into the case which was not raised by any of the parties.
Thus it was contended and reiterated that the learned trial Judges reliance on Aromire v. Awoyemi (1972) 7 ALL NLR 105; was without evaluation and appreciation of the circumstance of that case and the old Lagos High Court Rules (Order IV Rule 5(1) thereof against Order 14 and 6(1) of the Kwara State High Court (Civil procedure) Rules), which emphasizes on the party being bound in order to be categorized as a necessary party. He added that no two cases are authority for the other except they are on similar facts and ratio decidendiand as such the confusion generated from the facts in Aromire v. Awoyemi (supra) on joinder of the 4-6th Defendants are different from the facts of this. He then alluded to the ratio in Anabanarue v. Nwakaihe (1997) 1 SCNJ 161 at 166 on the rationale behind the decision in Aromire’s case which according to him, is not a general proposition of the law that once it can be shown that the Plaintiff did not make any claim against the intervener, then such intervener is not a necessary party even if the intervener has an interest which would render him being bound by the decision in the claim.
On the Defendant’s Reply to Claimant’s Counter-affidavit (see pages 38 and 39 of the Records) and the Court’s allusion thereto at page 54 line 27 of the Records, the learned Counsel for the Appellants submitted that the Reply is a complete answer to the Claimants’ conspiracy theory against the Appellant and the 3rd-5th Respondents and that if the Court below had alluded to Order 56 Rule 11 the Court would not have shut out the Defendants’ Reply to such biased and unfounded allegation against the Appellant and Defendants/3rd-5sth Respondents.
Learned Counsel further argued that it is settled evidence from Exhibit A to the Appellant’s Application (page 19 of the Records) which is the acquisitive instrument by the defunct Ilorin Local Government and which by Section 196(1), (2)(a)(b)(c), (3) and (4) of the Local Government Law of Kwara State, Cap.92, 1976, the Appellant has become assigned and vested with the rights, interest, obligations and liabilities of the dissolved Ilorin Local Government mentioned in the said Exhibit. He pointed out that none of the Respondents quarrels with the correct implication of this Law on the relationship between the defunct authority and the Appellant beyond the Claimants’ indulgence on technicality to say that the Appellant’s Reply was not on point of law which the trial Judge erroneously embraced without taking judicial notice of the legislative instrument.
It was submitted citing the case of Bello v. INEC (2010) 44 NSCQR 4 NSCQR (pt II) 1314 at 7323; that none of the questions raised by reason of the Appellants Reply Address could be effectively determined in the absence of the Appellant’s acquisitive authority who still maintains title to part of the land in dispute and ought to be joined so that she would not complain subsequently that she was not heard on the question.
Still on the justification for the Appellant being joined on the claim for declaration of title, learned Counsel maintained that the extent of the acquisition conducted in 1975 pursuant to the instrument (Exhibit A) bearing in mind that prior to the Land Use Act, 1978, it was the power of the Local Government to compulsorily acquire land for public interest; the extent of the acquired land by the Appellant from the 3rd-5th Respondents’ family and the extent allotted to all the resettled communities including the 1st and 2nd Respondents’ Community ought to be established and also whether the Claimants’ community is entitled to title over part of the land in dispute designated for provision of Housing Scheme and Agricultural purposes by the Appellant.
For the above submission and the fact that the issues at stake in the Lower Court cannot be effectually and effectively determined, in the absence of the Appellant, he relied on the legal maxim in Anon v. Raphael Truck & Sons Ltd. (1956) 1 QB 3 57 at 37 quoted with approval in the Nigerian case of Oriare v. Govt. of Western Nigeria & Ors. (1971) NSCC 133 at 137 adding further that the trial Court did not appreciate that in all decided cases where the claim for ownership over the subject matter is in dispute and such subject matter is the subject of compulsory acquisition, as in this case, the trend is to allow the acquisitive authority to be made a party even at the instance of the Court.
The case of Nnorodim v. Ezeani (2001) 2 SC 145 at 146-147 which is on all fours with the case at hand was cited to buttress this submission. Reference was also made to the Ruling of this Court in Alh. Adelodun Umoru & 3 Ors. v. Alh, Memudu Jimoh Orire & Anor, Appeal No: CA/IL/16/2009 delivered on the 17th of March, 2010, page 32 thereof where the Court admonished that the necessary party should be joined for the effectual and complete determination of the area claimed by either party, to urge us to be guided by the said Ruling.
Finally, the learned Counsel placed reliance on Section 4 of the Native Authority Notice, Cap.17 (which was in operation in Northern Region as at 1975), the subsequent Section 76(1),2(a) and Section 78(a)(b) & (c) of the Local Government Law of Kwara State Cap. 92, 1976; the Emir’s role in the acquisition process on the Appellant’s instruction and the trial Court’s failure to give effect to the above cited Legislations, to submit that the trial court failed to act judicially and as such this Appellate Court is in as good a position to set aside any decision arising from such failure in the interest of justice. Norwood (Nig.) Ltd. & ors. v. STAHLBAN GMHB & CO. LTD. (1989) 2 NSCC 471 at 412, referred. On the holding of the learned trial Judge at page 54 lines 11-14 of the Records that joining the Appellant will cause confusion and prejudice, he asserted that these are wrong ingredients for the just determination of the Application for joinder of party as neither the law nor in the entire High Court Rules is there such stipulation that once hearing is commenced in a suit an application by an intervener cannot be allowed.
Secondly, the nature of prejudice and confusion that may allegedly arise were neither given by the claimants/1st -2nd Respondents nor the court and that, the decision by the Court below in this respect is sub-judicial, premature and biased against the Appellant particularly, where all parties, evidence have not been heard and determined, he observed.
Learned Counsel further cited the case of Sylvanus Motune v. Mohammed Gambo (1983) 4 ALL NCLR 237 at 292 where the apex Court enjoined Courts to avoid in their ruling/decisions on interlocutory matters, pronouncements which may prejudice the substantive case, to submit that the learned trial Judge failed to observe this ethos as the Ruling had expressed bias opinion of the Judge against the case of the Appellant even if eventually made a party regardless of the merit of her case. American Cynamid v. Ethicon Ltd. (1975) A.C. 396 at 407; per Lord Diplock was again cited to emphasize on the Court’s description of joinder of the Appellant as capable of causing confusion, prejudice and compromise of fair hearing to the Claimants’ case; and Onuaha v. State (1988) 7 SCNJ 20; to conclude on this issue that the decision of the Court below is wrong in that the Court did not show proper understanding of the facts and there was a failure to draw proper conclusion.
ISSUE NUMBER 2
WHETHER IN THE DETERMINATION OF THE APPELLANT’S APPLICATION, THE FAILURE AND/OR REFUSAL OF THE TRIAL JUDGE TO CONSIDER THE APPELLANT’S COUNSEL’S REPLY ADDRESS HAS NOT OCCASIONED AS A BREACH OF FAIR HEARING
Learned Counsel’s grouse on this issue is that the Court below completely failed to consider the Appellant’s Counsel’s Reply Address on the slender ground that same did not comply with the provisions of Order 11 Rule 2(4) of the Kwara State High Court (Civil Procedure) Rules, 2005 which
provision was reproduced. Reference was then made to page 55 lines 9-11 of the Records where the Court below made the observation that the Reply Address does not contain ” Point of Law” under the Order above cited; submitting per contra that a perusal of the Address would reveal that all points raised are a summary of legal consequence of the application of the laws and the Rules to the facts raised and the decided cases cited both in the Claimants’ Counter affidavit and Written Address respective.
The learned Counsel for the Appellant, again argued that the learned trial Judge merely placed reliance on the legal points raised in the Claimants/1st-2nd Respondents’ Address without a consideration of Appellant’s Reply Address and thus shut out the Appellant’s Reply Address to the new points raised in the 1st-2nd Respondents/Claimants’ Address. He referred us to the points raised and addressed in the Appellant’s Reply Address at page 31- 37 of the Records, which include:-
(a) Presumption of law on a party’s Counsel’s appearance in a proceeding (pages 31-32 lines 1-7 of the Records)
(b) The Legal consequence of the provision of Section 196 of the Local Government Law of Kwara State Cap.92 of 1976 on the legal relationship between the Appellant and Ilorin Local Government, the (acquisitive authority) by virtue of Exhibit A (See page 32 lines 8-30 of the Record).
(c) The legal relationship between the Emir of Ilorin and the Appellant by virtue of Section 4, Native Authorities, (Establishment, Appointment & Constitution) Notice Cgp.77 Law of Northern Nigeria and sections 78,  Local Government Law of Kwara state, cap.92, 1979.
(d)  The Appellant’s response to the application of the case of Okadere v. Adebara (1991) 6 SCNJ 254 cited and relied upon by the Claimants (page 34 lines 25-37) and page 35 lines 1-30 of the Records.
(e) The Appellant’s response to the Claimants’ interpretation of Order 33 Rule 3 of the Kwara State High Court (Civil Procedure) Rules 2005, and appropriate application of the case of Ibrahim v. Adekunle (unreported) page 35 lines 31-37 and page 36 of the Records.
From the foregoing, the learned counsel for the Appellant contended that since all those legal issues were raised first in both the Claimants, Counter-affidavit and their Counsel’s Address (page 22-28 of the Records); the learned Counsel for the 1st and 2nd Respondents was in error to have described the Appellant’s Reply Address as not being on points of law.
The assessment according to him, given to the Appellant’s application is based on a wrong and breach of order 14 Rule 2(4) of the Kwara State High Court (Civil Procedure) Rules 2005 and therefore constituted a fundamental and substantial breach of the provision of section 36(5) of the l999 Constitution. In support of this contention he cited the case of African Construction Seaways Ltd. v. NIG. Dregging RS & General Norway Ltd. (1988) NSCC 323 at 337; to submit that the principle that where a breach of the Rule of Court amounts to a denial of fair hearing or rule of natural justice, then the irregularity is considered substantial and affects the validity of the whole decision.
Learned counsel also relied on Obodo v. Olomu (1987) 3 NWLR (p.59) 111 at 123-124 per Obaseki, JSC; on the importance of learned Counsel’s Address which could have tilted the Ruling of the Lower Court in favour of the Appellant and as such the learned trial Judge’s refusal to consider the Reply Address of the Appellant vitiated the decision of the Court and rendered the proceeding a nullity.
On another wicket and assumption that the Reply Address did not contain any points of law, learned Counsel argued that the learned trial Judge ought to have done substantial justice rather than adhere to technicality in denying the Appellant her right of hearing/Address as guaranteed by order 4 Rule 1(11) High Court (Civil Procedure) Rules, 2005 and Section 158 of the 1999 Constitution on non-compliance with the Rules which should be treated as a mere irregularity which should not nullify or render the process void. As for the consideration of the claimant’s counsel rejection of Appellant’s Reply Address which claimant’s Address was oral, learned counsel for Appellant submitted that such oral submission was a breach of order 4 Rule 2(2) of the Kwara state High court (civil procedures) Rules, 2005.
The learned Counsel further emphasized on the bias expressed by the trial court against the Appellant by the court’s failure to provide any ratio decidendi for its decision as it is trite that there must be some basis on how the court arrived at such decision which indication must be on the record. NARUMAL & sons Nig. Ltd. v. Niger Benue Trans. Coy. Ltd. (1983) 2 NSCC 147 at 158 and 160; to argue that the mere expression by the court thus: ” I think he is right” is in the same league with a Judge’s decision that merely “I believe” without stating any reasons for such belief. Citing Obodo v. Olomu (supra) at 124 on a similar fact, he finally submitted that the learned Judge having failed to countenance the Appellant’s Reply Address, deprived himself of the legal responsibility to provide ratio decidendi for its decision and came to a perverse decision and thus occasioned a miscarriage of justice and rendered the Judgment a nullity. We were then urged to resolve the issue in favour of the Appellant.
ISSUE NUMBER 3
WHETHER A RESORT TO PARTICULAR PROCEDURE NOT PROVIDED BY THE RULE CAN DEFEAT A PARTY’S RIGHT TO BE HEARD ON AN ISSUE AFFECTING HIS INTEREST?
On this Issue, the grouse of the Appellant is that the Court below ought to have exercised the wide discretionary powers vested on it to do justice regardless of any inadequacy on the part of the Appellant arising from a major lacuna in the Rules of Procedure and should not have denied the Appellant the opportunity to ventilate her position on any issue affecting her interest.
He submitted that if the Court had considered the scope of the provision of Order 1 Rule 2 and Order 56 Rule 11 of the High Court Rules, the Court would not have refused the Claimants’ Counter-Affidavit on the ground that the Rule does not make provision for such process in spite of the provisos
thereto. Pages 22-23 of the Records were cited to posit that the weight of the Claimants’ paragraphs 14 and 15 of their Affidavit influenced the learned Judge’s mind and that non-direction further occasioned a miscarriage of justice since the Court refused to consider the Counter-Affidavit to which the Appellant denied since the averments in the Counter-affidavit in law are deemed admitted.
Citing again Onuoha v. The State (1988) 7 SCNJ 20; he maintained that the conclusion drawn by the lower Court at page 54 lines 25-30 of the Record on the non-provision by the Rules for the Counter affidavit of the  Defendants/3rd-5th Respondents, is improper as it does not demonstrate a proper understanding of the law in this regard for the following reasons:-
1. The legal value of the process under reference is governed by Section 78-90 of the Evidence Act and generally since the substance of the complaint is to its form, Section 84 of the Act permits the use of the said process in its defective form since its objective was to controvert facts 3rd-5th Respondents believed were not true and which depositions are against the Appellant’s interest.
2. By order 1 Rule 2 the courts now emphasizes on substantial justice against technicality and although the Rule is silent on the appropriate step to be taken by a party who is not opposing an application for joinder/intervener but discovers there are allegations made against him by the other party who is opposing that application,. The question is whether the party can keep silent.
According to the learned Counsel for the Appellant, Order 1 Rule 2 envisages that the Court below should avail such a party the right to be heard in the face of the obvious lacuna in the Rule of Court. In the same vein, he added, Order 56 Rule 11 empowers our Courts to remedy such lacuna in the procedure so that the interest of justice may not be sacrificed on the altar of technicality. It was his further submission still on this point placing reliance on Aigbodahi v. Alfuwa (2006) 2 NSCC 67 at 77; which decision has warned against the attitude of the Court not being fair to the litigant in not hearing a party because the rule is silent on the procedure to be adopted and that the Court ought not to have heard the opponent party in isolation.
Finally, the learned Counsel took the view that the limiting of the appropriate provision on the right of the Defendants to ventilate their position against the Claimants averments to Order 11 Rule 2(3), the learned trial Judge has not only suffocated justice in adopting a rigid approach to the interpretation of the Rules but failed to appreciate the scope of the Rules as subsidiary legislation which ought to be read as an integral part of the whole rule. The learned trial Judge having failed to employ the rule of interpretation, he maintained, failed in his judicial responsibility to do justice by not considering the Defendants/3rd-5th Respondents Counter-affidavit and by implication admitted the allegation made against the Appellant and the Defendants/3rd-5th Respondents which further influenced the trial Judge in refusing the Appellant’s Application for joinder.
We were in conclusion urged to allow the Appeal and set aside the order of the lower Court.
1ST AND 2ND RESPONDENT’S ARGUMENT
ARGUMENTS ON PRELIMINARY OBJECTION OF THE 1ST & 2ND RESPONDENTS
As earlier stated, Joseph Bamigboye Esq., the learned counsel for the 1st and 2nd Respondents, who settled their Brief, raised a preliminary objection on the competence of the interlocutory Appeal as well as the Grounds thereof for according to him the Notice Appeal includes Grounds of facts, the leave of Court which was not sought before filing them contrary to section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999. In the view of learned counsel for the 1st and 2nd Respondents, neither the leave of the High Court nor this Honourable Court was sought or obtained and as such Ground I of the Notice of Appeal is incompetent same being one of fact. Grounds 2, 3, 5, 6, 7, in the learned Counsel’s view, challenge the exercise of discretion and evaluation of evidence by the trial Court and on that premise are at best grounds of mixed law and facts. We were referred to the case of Investors International (London) Ltd. v. First Bank of Nigeria Plc. (2008) ALL FWLR (pt, 405) 1770, 1782 paras. B-C; to back up his above submission and to further contend that in an interlocutory Appeal from the High Court to the court of Appeal, a ground of mixed law and facts can only be valid and competent when filed with the leave of the High court or Court Appeal but that in the instant case, no leave was sought and obtained to file these grounds and they are accordingly incompetent.
Speaking specifically about Ground 4 of the Notice of Appeal, learned Counsel observed that it did not arise from any issue raised in the lower Court and in fact did not arise. He further pointed out that the Appellant did not formulate any issue in the lower Court and referring us to page 31 para. 1 of the Records submitted that the Appellant rather adopted the sole issue formulated by the Claimant as can be found in pages 25 para. 3.00 of the Record of proceedings.
Learned Counsel for the 1st/2nd Respondents maintained that the issue is limited to whether or not the suit can be effectually determined with the parties before the lower Court which question the Court answered in the affirmative. Referring us to page 32 paragraph 2.5 of the Records he submitted that the Appellant purportedly alluded to the issue of assigned and vested Right of Local Government under Section 196 of the Local Government Law which issue is irrelevant but the Court below reacted at page 55 of the Records to the Further and Better Affidavit to which a Written Address was attached by learned Counsel to the person sought to be joined, holding that the Appellant was entitled to Reply on points of law and not to re-argue his case.
Learned Counsel then posited that by this holding, the Court discountenanced the Reply which was a guise to re-argue the Applicant’s motion and the Appellants did not appeal against that holding and is accordingly bound by it. Therefore, he maintained, any fresh point raised in the purported “Reply Address” in support of the Further Affidavit, is incompetent as the learned Counsel for the Appellant did not raise the issue in the argument in support of the main Application at pages 20 and 21 of the Records; neither did the Respondents do so in pages 24-21 of the Records.
It was the further contention of the learned Counsel for the 1st and 2nd Respondents that Ground 4 of the Notice of Appeal having not arisen from the trial, the castigation of the learned trial Judge as failing in his judicial responsibility in the said Ground by Appellant’s Counsel is reckless, unfair and unwarranted. He posited again that a Ground of Appeal which does not arise from the decision appealed against or properly placed before the lower Court and not predicated on the leave of Court, is incompetent more so when the Grounds are of mixed law and facts. Chief N.P. Ugboaja v. Sodolamu Akitoye-Sowemimo (2008) ALL FWLR (pt 439) 407, 418 B-C; was cited to submit that in the instant case the interlocutory Appeal from the High Court is on mixed law and facts and Ground 4 not being related to the decision of the trial Court, the Appellant mandatorily ought to seek leave of Court under Section 242(1) of the Constitution of the Federal Republic, 1999 for the Grounds of Appeal to be valid.
The Appellant according to learned Counsel did not seek leave and accordingly all the Grounds are incompetent as well as the issues formulated from those grounds which are invalid. We were then urged to strike out the Appeal.
ARGUMENTS OF THE 1ST & 2ND RESPONDENTS ON THE SOLE ISSUE FOR DETERMINATION: Arguing the sole issue for determination which is whether the dismissal of the Appellant’s application for joinder was a judicious and judicial exercise of discretion by the lower Court; the learned counsel noted that joinder of a party as Defendant is provided for under Order 14 Rule 4 of the Kwara State High Court (Civil Procedure) Rules, 2005 which he reproduced in submitting that from the above provision it is mandatory that for a party to be joined as Defendant there must be a right to a relief in whole or in part against him. He contended that throughout the entire gamut of the Statement of Claim at page 7-10 of the record of proceedings there is no complaint, or relief sought against this appellant, and indeed she is totally unrelated to the cause of action and she was not even mentioned.
He took the view that Appellant was not in existence at the time of the acquisition nor was the Ilorin Local Government from which it was excised involved in the acquisition in any way. Parties at the Lower Court in their pleadings admit that when they had dispute as to the extent of acquisition and boundaries, they referred the dispute to the Kwara State Ministry of lands and Housing, and not to the Local Government. The application for joinder and this appeal are with due respect ill conceived and in abuse of Court process aimed solely at further delaying the conclusion of this 9 year old suit; it was further submitted.
Learned Counsel asserted that it is the law that a person against whom there is no complaint in a suit is not competent as a party (Foreign Finance Corp v Lagos State Development corporation (1997) 5 SCNJ 54 71 refers) and that the Supreme Court defines a necessary party and the circumstance under which a Court will grant an application for joinder in the case of Benson Akintola Sunmola Ige V. Babaiide Akinwunmi Farinde (1994) 7-8 SCNJ 294, 301-302.
He therefore submitted that on all processes before the trial Court, this appellant is neither a necessary nor a desirable party, therefore his application is frivolous and distractive, and was properly dismissed.
Learned Counsel for the 1st and 2nd pointed out that the Appellant as the trial Court gave her reasons for seeking to join the suit in paragraphs 2 (e) of the Affidavit in support of his motion at page 19 of the Record of proceedings as follows:
“The issue in dispute in this suit is the precise extent of the acquisition made by the Applicant vide exhibit A”.
Learned Counsel insisted that the Appellant did not make the acquisition contrary to her falsehood, and the said Exhibit A is meaningless, worthless and totally irrelevant as it contains no information on the land acquired, the extent of the purported acquisition nor related to the 1st and 2nd Respondents. In any case he contended further; the parties rely on the survey map drawn by the Kwara State Ministry of Lands and Housing for boundaries and not the meaningless Exhibit A attached to the Appellant’s Affidavit in support of her motion.
Learned Counsel argued that in a volte face the Appellant under issue No. 1 in this appeal turned summersault and claimed she is seeking to join because she also owns part of the land in dispute, and that the declaration sought will affect her (paragraph 5.4 – 5.9 under issue No. 1 of the Appellant’s Brief of Argument refers). He posed the question as to the mission of the Appellant in this suit, whether it is to tender Exhibit A on what she called the extent of acquisition as she claimed in her Affidavit, or to defend thereafter through baseless claim of also having a share in the land in dispute which she intends to protect against the declaratory relief. He maintained on the authorities of Ajide v. Kelani (1985) 3 NWLR (pt. 12) 248, 269 C-D and Divine Ideas, Limited v. Hajia Mero Umoru (2007)
ALL FWLR (Pt.380) 1468, 7503 E-G where the Court of Appeal more bluntly deprecated this practice of inconsistency in the case of a party.
The learned Counsel further argued that, apart from the above, the argument that the Appellant is seeking to join to protect her land is not contained in the Appellant’s Affidavit and therefore not legal evidence on which the Appellant can found a competent complaint and for these, the whole of the argument in issue No. 1 is misconceived and thoroughly incompetent.
Learned counsel maintained that contrary to the reckless vituperations of the Appellant on the trial Court in paragraph 5.3 of the Appellant’s Brief of Argument, the trial Court appreciated the claims before the Court as declaratory reliefs and damages for trespass against the 3d and 5th Respondents as Defendants at the trial Court, as can be gleaned at page 53 line 17 of the Record of proceedings which shows that the claim as captured is against the defendants and not at large. He pointed out that it is settled law that judgment and orders of Court, even where declaratory, bind parties before the Court and not non parties. Divine Ideas Limited v. Hajia Mero Umoru (Supra) at 1504 E-G was further cited to submit that the contention by the Appellant that she would be bound by the judgment, has no basis in law.
On the submission by the Appellant under her Issue No. 3, paragraphs 5.51-5 66 and her argument against the trial Court’s decision to discountenance her Reply to the 1st and 2nd Respondents Written Address against her motion at page 31-37 and the 3rd-5th Respondents purported “Reply to the 1st and 2d Respondents’ Counter-Affidavit, and the attached Written Address; the learned counsel for the 1st and 2nd Respondents further contended that there is no ground of appeal against the decision of the trial Court to discountenance the two processes as incompetent, and the issue and argument raised on the decision is misconceived and incompetent.
However, the incompetence notwithstanding learned counsel maintained, he submitted that the Court has no power to waive fundamentally incompetent processes in the guise of substantial justice or non adherence to technicality. He asserted that the filing of Motion, opposing the motion and Reply On Points of Law are all governed by Order 11 Rules 2(3) and (4) of the Kwara State High Court (Civil Procedure) Rules, 2005 which he reproduced.
He observed that the 3r’d – 5th Respondents as Defendants at the Lower Court did not oppose the Motion, and by these rules have no process to file, rather they purported to file a reply to Counter-Affidavit, and attacked the 1st and 2nd Respondents Counter-Affidavit, which Counter-Affidavit, is not a motion. He maintained that a party who did not file a motion and is not opposing a motion has no right to reply to a Counter-Affidavit against a motion he did not file, and when he is not opposing the motion. The purported process filed by the 3rd – 5th Respondents contained on pages 38 – 48, he insisted, has no supporting provision under the rules and it is clearly incompetent more particularly where there is no provision under the Rule for “Reply to counter-Affidavit’ rather an Applicant responding to averments in a counter-Affidavit may file a “further-Affidavit and that a party other than the applicant has no right to reply to a Counter-Affidavit against a motion he did not file.
In this wise, the learned counsel for the 1st and 2nd Respondents reiterated that the trial court acted within the ambit of the law by discountenancing the incompetent processes filed by the 3rd -5th Respondents. On the contention by the Appellant that the trial court also purported to reply the 1st and 2nd Respondents’ counter-Affidavit and attached what he titled “Applicants Reply Address in support of motion dated 8/2/2011” as contained at pages 29-37 of the record of proceedings; it was the learned counsel’s submission in this regards that the purported Reply address formulated issue, and went on to re-argue the application and raise fresh issues. He then submitted therefore that the Reply Address was incompetent and not supported by the rules for the Appellant to re-argue his application in a purported response to an address opposing his motion, as his right is limited to reply on points of law as provided for by the relevant rules of court and  not to re-argue his application. For this submission he placed reliance on Chief Onwuka Kalu v. chief Victoria I Oditi (1992) 6 SCNJ 76, 96.
still on the question of Reply Address, it was further submitted that neither the Appellant’s Reply Address which re-argued his application rather than reply on points law nor the 3rd – 5th Respondents, Reply to Counter-Affidavit against a motion they did not file and are not opposing; are known to the Rules and they were clearly incompetent, and rightly discountenanced by the trial court. Citing the case of The Hon, Justice Kalu Anyah v. Ann Limited (1992) 7 SCNJ 47, 57; he   submitted that where a court has no discretion under a rule, the strict provisions of the rule will be applied and from the above authority, the processes in focus are incompetent and filed in patent abuse of Court process, and the trial court was right to have ignored them. He maintained that in any case, even if the court had reckoned with the processes, it would not have made any difference.
On the Appellant’s claim to the trial Court’s failure to determine his assertion that by virtue of section 196 (2) (b) of the Local Government Law of Kwara State, 1976; the right of Ilorin Local Government has become vested and assigned to Ilorin West Local Government, the learned Counsel for the 1st and 2nd Respondents again wondered what she intends to make of that submission having regard to the claim and the cause of action in this suit. He therefore insisted that the point is not a relevant issue, as the focus of a Court’s determination is relevant issues, not an issue which did not arise nor was properly placed before the Court. It was is further argument on this point that none of the parties alluded to any role by Ilorin Local Government in the entire gamut of the pleadings and that if Ilorin Local Government is irrelevant, it follows that Ilorin West Local Government; even if it is true that she succeeded Ilorin Local Government cannot be relevant. In any case, he further asserted, the point was most irrelevantly made in the process titled “Reply Address in Support of Motion” which the trial Court held is a re-argument of the motion and therefore incompetent.
On the alleged castigation by the Appellant in a most unfair manner for the holding of the Court below that having heard and discharged a witness in the case; joinder of a party at that stage will compromise fair hearing and cause confusion in the case, learned Counsel for the 1st and 2nd Respondents noted that by order 33 Rule 3 of the Kwara State High Court (Civil procedure) Rules, 2005; joinder of a party is a preliminary or threshold issue which must be concluded before the case proceeds to hearing. He further noted that the decision on whether to join a Defendant necessarily depends on the stage of trial and the circumstance of each case and that in the circumstance of this case joinder of the Appellant will compromise fair hearing and as the trial Court rightly held bring confusion into this case. Accordingly, it was submitted that the holding by the trial Court is in the circumstance of this case, fair and just.
The learned counsel further canvassed the point that it is settled law that a Claimant is at liberty to join only those against whom he has a cause of action and cannot be compelled to proceed against persons he does not within the scope of his cause of action desire; the power to join a party upon an application by the Court being discretionary and not to be exercised simply because the application has been made but only where the application has established sufficient interest to make her a necessary or a desirable parry which this Appellant woefully failed to do so. The case of Mr. Michael Agbekoni v. Alhaji Ibrahim A. Kareem (2008) All FWLR (pt 406) 1970 – 1985; was cited to buttress the above submission.
Still on the discretionary nature of an application for joinder of a party, he further argued on the authorities of Minister of petroleum and Mineral Resources v. Expo shipping Line (Nig). Ltd. (2010) ALL FWLR (pt.530) 1230 – 1247; Chief John Oyegun v. Chief Frances A. Nzeribe (2010) ALL FWLR (Pt. 516) 425, 440 and National Bank of Nigeria, Limited v. Guthrie (Nig) Ltd (1993) 4 SCNJ 1, 15; that discretion is not an exercise of judicial whim but a judicial judgment based on facts, equity and guided by law. From the foregoing, he then submitted that the Appellant’s application for joinder is ill conceived, without basis and therefore most frivolous, as discretion will not be exercised in favour of such and application.
Moreover, he maintained, the Appellant’s after thought claim that she reserved part of the land meant for resettlement for agricultural purposes which she needed to defend against the declaratory relief sought by the 1st and 2nd Respondents is a preposterous red herring, and incompetent to use part of a land meant for resettlement of the displaced community for Agricultural purposes since the two are separate heads of public purposes.
The above apart he submitted, that was not the Appellant’s case at the lower Court, and it is incompetent.
In conclusion, it was his contention that the declaratory relief the 1st and 2nd Respondents seek is against the customary ownership of the 3rd and 5th Respondents which has been extinguished and not and cannot be at large contrary to the gross misconception of the Appellant,
On all legal parameters, it was further submitted, the trial Court acted judicially and judiciously in refusing to exercise her discretion in favour of the application for joinder by the Appellant, and the Application was rightly dismissed. He finally prayed us to resolve the sole issue against the Appellant and dismiss this appeal.
3RD – 5TH RESPONDENTS ARGUMENTS ON THE ISSUE FOR DETERMINATION
Issue Number 1 (One): Arguing this issue which is Whether the deliberate action of the trial Judge to ignore some of the processes filed in the application culminating in this appeal was not an infringement on the fundamental rights to fair hearing; Learned counsel for the 3rd to 5th Respondents began by pointing out that upon the application of the Appellant (found on page 16 of the record) seeking to be joined as an interested party in the suit which culminated in this appeal, a number of processes were filed which inter alia included the main application with the supporting affidavit and a written address to boot found on pages 17-21 of the record) in compliance with the extant Kwara State High civil court Procedure Rules 2005 consequent upon which the claimants/Respondents vouched a counter-affidavit with a written address, a process which the original defendants cum 3rd -5th Respondents should not be an exception to pursuant to which some paragraphs of affidavit were equally filed tagged reply to claimants’ counter-affidavit in participation of the proceedings to which were being fought against them.
He adverted the mind of the court to what transpired at the in lower court respect of the affidavit of the 3rd -5th Respondents with the depositions therein which were tailored to counter the allegations of conspiracy as deposed to in the counter-affidavit of the 1st and 2nd Respondents to the application of joinder by the Appellant found on pages 38 and 39 of the Record. He recalled what the trial Judge in his own evaluation of the processes before him stated.
on the attitude of the trial court still as regards the processes of the 3rd -5th  Respondents couched “Reply to claimants counter-affidavit”, he cited Asol (Nig.) Ltd v. Access Bank (Nig) plc. (2009) 10 NWLR pt. 1149 Pg. 283 at 303-304; and rhetorically posed the question whether it is no longer the law that facts in a counter-affidavit not controverted are deemed admitted. He observed further that their brief would be better appreciated if taken with the treatment meted out to the Appellant in that the trial Judge glossed over the party’s address filed to the counter-affidavit of the 1st and 2nd Respondents by failing to give it a consideration in his ruling being challenged before this Court.
It was therefore contended by the learned counsel for the 3rd to 5th Respondents that the action or inaction of the trial Judge to ignore their process (in whatever guise) and the Reply Address of the Appellant is nothing but, sheer denial of fundamental rights to fair hearing. Relying on the case Odigwe v. J.S.C. Delta State (2011) 10 NWLR pt. 125 pg. 254 at 283; which stated the determinants of whether a party was afforded an opportunity of being heard, he submitted that any breach of the conditions stated in the above cited case would be tantamount to denial of fair hearing as witnessed in the proceeding culminating in this appeal.
We were then urged on the authority of Uzuda v. Ebigaa (22009) 15 NWLR Pt.1163 Pg.1 at 14 to hold that the flagrant refusal of the trial Judge to take into reckoning their process and that of the Appellant in his ruling breached the fundamental rights of the 3rd -5th Respondents to fair hearing and it impinged on the proceedings before the Court as a Court’s failure to consider and determine the case of a party is a violation of the party’s constitutional right to fair hearing, the proceedings being vitiated thereby requiring the intervention of an appellate Court on a complaint of the affected party.
ISSUE NUMBER 2 (TWO): WHETHER THE NON-PROVISION OF A PROCEDURE TO BE EMPLOYED IN OR PROCEEDINGS WOULD AUTOMATICALLY DEPRIVE THE COURT OF ITS VIRES TO DO SUBSTANTIAL JUSTICE IN A GIVEN MATTER.
The Learned counsel on this issue observed that the emphasis of the Supreme Court of Nigeria (and by reasonable extension this Court) is on substantial justice and not on one attained on the altar of unfounded technicalities as exhibited in the ruling complained of before this Court. He argued that it is a settled law that once facts deposed to in a counter affidavit are not controverted, they are deemed admitted. Thus, he submitted that in order not to fall prey of the above principle of law, the 3rd -5th Respondents filed a counter Affidavit dubbed REPLY TO CLAIMANTS’ COUNTER AFFIDAVIT, (found on pages 38 and 39 of the record) an action borne out of the facts contained in the 1st and 2nd Respondents counter-affidavit in opposition to the application for joinder (as found on pages 22 and 23 of the Record) particularly paragraphs 14 through 16 which did cast aspersions on the 3rd -5th Respondents that the main application was with their (3rd-5th Respondents) Connivance, who had boasted to frustrate the case and that no reference was made to the entity known as Ilorin west Local Government Area in all processes filed before the Court.
He then maintained that it is only reasonable for a party to a suit who has been misrepresented to react to such circumstances which now culminated in their counter-Affidavit. According to learned counsel, the crux of their Reply to the Claimants’ counter-Affidavit could be garnered from paragraphs 3 (a) through (j) of same which should have tilted the mind of the court to their (Respondents) own side of the story, but, which the court chose to ignore thereby relying on the “ex-parte” depositions of the claimants in their counter affidavit premised on the conclusion that Kwara state High court (civil Procedure) Rule 2005 made no provision for such procedure.
It was therefore the firm view of learned counsel for the Respondents that the trial Judge did not avail himself of the extant provisions of the Rules of the court which he ruled did not provide for exigencies like their process before him otherwise order 1 Rule 4(2) would have come handy to bail him out of the situation as same rule is an embodiment of Justice to be done in a given situation. For this submission he relied on Sanni v. Agara (2010) 2 NWLR Pt.1178 Pg.371 at 393; where this court held inter alia, that the said order impliedly gives the court the discretion to use the Rules for efficient and speedy dispensation of Justice; to submit that were the trial Judge guided by this pronouncement, he would not have shut them out on the ground of lacuna in the rule of court which he employed.
Furthermore, learned counsel recalled that they averred in paragraph 8 of their pleadings that the land in dispute (see page 13 of the record) was acquired by the Appellant in conjunction with Kwara state Government pursuant to which a letter was written to the 3rd-5th Respondents family by the defunct Ilorin Local Government Authority (which now metamorphosed to Ilorin West Local Government Area under which the land in dispute now falls) with a copy of the said fetter front loaded in compliance with Kwara State  High court (Civil Procedure) Rules, 2005 (page 19 of the records referred).
These facts and more, according to him, are the ones which the 1st and 2nd Respondents denied in their counter-affidavit which necessitated a reply on their part which the trial Judge ruled that there is no provision to ventilate their grouse in the Rules of Court to challenge even if they have lied under Oath.
Still on this point, the learned Counsel to the 3rd to 5th Respondents posited that Court rules are guides and not assassins hiding, waiting for when to strike as more so, the Rules of Court are made for the Courts and not the other way round. The courts are not made for their rules. It was his further position that if compliance with rules of court will cause injustice or miscarriage of justice in the case, the court will in the choice of doing substantial justice detract or move away from the rules of court. Sanni v. Agara (supra) pg. 398-399 referred.
On the whole, the learned Counsel took the view that it goes without saying that miscarriage of justice was evident in the ruling of the trial Judge as he shut out the 3rd-5th Respondents by ignoring their process in the face of weighty allegations made by the 1st and 2nd Respondents in their Counter-Affidavit against them premised on the lacuna in Order 11 Rule 2(3) of the Rules of Court 2005. Finally, he noted that this court has always frowned on strict and rigid adherence to the rules of Court which will cause injustice and in its stead prefer an approach which allows substantial justice to prevail. See Sanni v. Agara (supra) at pg. 401. We were finally urged to allow this appeal and set aside the ruling of the lower court.
APPELLANT REPLY BRIEF
INTRODUCTION
It would be recalled that the Appellant filed a Reply Brief which incorporated her Reply to the 1st and 2nd Respondents’ preliminary objection as argued on pages 1-3 of 1st and 2nd Respondents’ Brief of argument and Reply on Points of law to the sole issue raised and argued in the said 1rt and 2nd Respondents’ Brief.
APPELLANT’S REPLY TO PRELIMINARY OBJECTION
In respect of the preliminary objection the learned counsel intimated the court that except Ground No. 1 which has been abandoned, all the remaining 6 Grounds of Appeal in this Appeal are Grounds of law alone and as such the Appellant does not need leave of this court to file and argue them.
He cited the case of F.B.N Plc. v. T.S.A Ltd. (2010) 4-7 S.C. (Pt.1) at 228.
Where the Supreme Court explained the purport of an objection by a party to Grounds of Appeal on the ground that they raise questions of facts or of mixed law and facts and the yardstick for determining the classification thereof; and submitted that whether or not a Ground of Appeal is a ground of  law or fact or mixed law and fact; is not determined purely on the basis of the decision being an exercise of discretion, but on the basis of the nature of and  question raised by the grounds of appeal.
on the assumption but not conceding that Grounds 2,3,5,6 and 7 challenged the exercise of discretion and evaluation of evidence by the trial court, learned counsel for the Appellant submitted that it is not in all cases that a ground of appeal against exercise of discretion is automatically a ground other than ground of law, as the determination of the classification of the ground depends on the question(s) raised and nature of the fact(s) involved. Therefore, he maintained, where the ground of appeal against a decision rooted on exercise of discretion is predicated on established undisputed facts, the Ground is one of law. References were made to the cases of Diamond Bank Plc. v. Partnership Investment Co. (2009) 12 S.C. (pt.11) 159 at 173; faith Enterprises Ltd. v. B.A.S.W. Nig. Ltd. (2010) S.C. (Pt.11) 186 at 203;  to submit that the 6 Grounds of Appeal in this case are grounds of law alone and as such leave of the court below or the court of Appeal is not required to file and argue them. Founded upon the above enumerated legal prerequisites, learned Counsel then went on to assess each of the Grounds of Appeal in order to determine whether or not they are ground of law or of fact thus:
Grounds 1 and 7
On those Grounds it was submitted that they call to question the appropriate legal interpretation and application of a decided case as an authority to refusing the appellant’s application as the Appellant’s complaint on the first point is that the decision in Aromire v. Awoyemi (1972) 1 ALL NLR 105 was based on strict construction of the old Lagos State High Court (Civil Procedure) Rule which is limited in scope as against the wide scope of the provision of Kwara State High Court (Civil Procedure) Rules, 2005. Thus, it was further submitted that in law a Ground of Appeal is one of law if it deals with the construction or interpretation of law and only the law alone. Obiosa v. Nig. Air Force (2004) 20 NSCQR 50 at 72 referred. Ground 7 on the other hand he asserted, complains against a breach of the provision of Section 36 (1) 1999 Constitution relating to fair hearing.
In essence, these two grounds according to him complain of misunderstanding of and misapplication of law by the lower Court to disputed facts; hence, the Grounds are therefore grounds of law alone for which leave is not required. For this submission he relied on General Electric Company v. Akande (2010) 12 S.C. (Pt. IV) 75 at 106.
GROUNDS 3 AND 4:
These two grounds the learned Counsel submitted rest their complaint on the failure of the lower court to discharge its judicial duty in that the lower Court failed to provide ratio for its decision (Ground 3) and on its failure to pronounce on all the issues properly placed before it (Ground 4). He maintained that it is the law that a ground that complains about failure to pronounce on all issues is a ground of law. These two grounds, he insisted relate to the question which the court is bound to answer in accordance with the rule of law and in essence is a misconception of the law by the trial judge because it has the effect that the trial judge’s decision cannot be reasonably drawn from the fact as found and the Appeal court will assume that there has been a misconception of the law.
Thus, under Ground 3, he added, the complaint is that the trial court only said, (referring to the submission of the 1st and 2nd Respondents, counsel): “I think he is right” without more; hence no ratio was given in drawing the conclusion that the Appellant’s Reply Address is not on point of law.
speaking specifically on Ground 4 the learned counsel submitted that it is not the business of the 1st and 2nd Respondents to contest that the point of law raised at the lower court on the construction and application of the  provision of section 196 of the Local Government Law is irrelevant as contained in their paragraph 1.12 of their Brief, since the Appellant’s contention on this point is that where the Appellant’s became vested with the right and liabilities of the defunct Ilorin Local Government it was a live issue before the lower court, which the trial court ought to have decided upon, and the Appellant has no crystal ball to embark on speculation as to why such issue was not countenanced as 1st and 2nd Respondents are trying to do.
GROUNDS 5 & 6
On these Grounds it was the learned counsel’s submission still relying on the case of General Electric Company v. Akande (supra) at 100, that a question of law is determined inter-alia when it is:
(a) A question the court is bound to answer in accordance with a rule of law.
(b) The question is already determined (c) and answered by the law.
(c) where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, and the Appeal court will assume that there has been a misconception of the law, it is a ground of law.
He contended that in these two grounds, the complaint is that there is a misconception of the law in its application to established facts as the law is settled on the legal ingredients for joinder of a party but when the court elected to rely and give wrong criteria or determine this issue of law as in the present case, this shows a misunderstanding of the law on joinder of party.
The same principle, he further submitted, applies to Ground 6 which borders on misdirection as a misdirection occurs, when the Judge misconceives the issues whether of fact or law. Okotie-Eboh v. Ebiowo Manager (2004) 20 NSCOR 274 at 230 was further relied upon to contend that the error complained of here relates to the Judge’s finding as the ratio given by the  court in Ground 6 being at sea with any of the legal requirements essential to ground an application of that nature.
The fact as stated in the decision appealed against under Ground 6, he continued’ are not in dispute, as the Appellant’s only quarrel is that such admitted facts cannot constitute “confusion” or ” compromise fair hearing” as  alleged by the court, besides the conclusion not forming part of the settled  legal elements required under intervener application. He explained that the substance of their complaint in Ground 6 is that in drawing the conclusion  that granted the Appellant application will cause “confusion” and also entail  denial of “fair Hearing” to the 1st and 2nd Respondents, the trial court has  obviously misconceived the issue before it and inadequately applied the  evidence before his Lordship’ This is because “misdirection occurs where the trial judge sitting alone misconceives the issue or summarizes the evidence inadequately or incorrectly or makes a mistake of law”. Chidiak v. Laguda  (1994) NSCC 100 referred.
The learned counsel finally, argued on the authority of Odonigi v. Oyeleke (2001) 2 SC 194 at 198; that our Courts, attitude now is that once the ground clearly states what the appellant is complaining about with sufficient particulars as with the present case, such grounds cannot be described as incompetent because our courts have moved from observing Rules of technicality as to form to looking at the substance, and justice of the case and that since there is misapprehension or ambiguity in what each of the Grounds is complaining about; we should see the Respondents, objection as mere technicality.
REPLY TO THE SOLE ISSUE RAISED BY THE 1 & 2 RESPONDENTS:
on the reply to the sole issue formulated and argued by the learned counsel for the 1st and 2nd Respondents in their Brief, it would appear that learned counsel for the Appellant merely rehashed the arguments earlier proffered in the Appellant Brief and I shall in the course of resolution of the issues allude to relevant portions thereof, if necessary.
RESOLUTION OF ISSUES
Before resolving the issues formulated by the parties we shall first proceed to consider the Preliminary objection on the competence vel non of the Grounds of Appeal as contended by the respective learned counsel for the Appellant and 1st and 2nd Respondents. In the first place the contention of the learned counsel for the 1st and 2nd Respondents is that the Appellant’s Appeal from the High court is interlocutory in nature and by virtue of section 242 (1) of the constitution of the Federal Republic of Nigeria, 1999;the Grounds of Appeal being on facts can only be competent with the leave of either the trial  court or the court of Appeal being sought and obtained.
In the instant case, it is the further contention of the learned counsel for  the Respondents that neither the leave of the High court nor of this Honourable court was sought and obtained before Ground 1 of the Notice of  Appeal which is on facts, was filed and as such that Ground is incompetent.
We need not dissipate any judicial energy or time in considering this aspect of  the learned counsel for the Respondents’ objection since no issue was formulated from Ground 1 and learned counsel for the Appellant has so conceded in the Appellant’s Reply Brief, particularly in respect of the Preliminary objection, that the Ground has been and is accordingly deemed  abandoned. see Osafile v. Odi (1994) 2 SCNJ 1 and Effiong v. The State (1998) 5 SCNJ 158 at 162.
In respect of Grounds 2, 3, 5, 6 and 7 the learned counsel for the Respondents has also posited that these Grounds are of mixed Law and facts  on an Interlocutory Appeal in that they challenge the exercise of the  discretion and evaluation of evidence by the trial High court and that leave  ought to have been sought and obtained from either the High court or this court before they could be filed. The Appellant having not sought and obtained the requisite leave, in his view, the Grounds as well as the issues formulated are incompetent. He had cited the case of Investors International (London) Ltd. v. First Bank of Nigeria Plc. (2009) ALL FWLR (pt.405) 1770, 1782 paras. B-C; per salami) JCA (as he then was).
The learned counsel for the Appellant on the other hand has submitted per contra that whether or not a ground of appeal is a ground of law or fact, mixed law and fact; is not determined purely on the basis of the decision being an exercise of direction, but on the basis of the nature of and questions raised by the grounds of appeal. He relied on the supreme court case of FBN Plc. V. T.S.A Ltd.(2010) 4-7 S.C (pt.1) at 228; to buttress his submission and to submit further that assuming but not conceding that Grounds 2, 3, 5, 6 and 7 challenge the exercise of discretion and evaluation of evidence by the trial court, it is here submitted that it is not in all cases that a  ground of appeal against exercise of discretion is automatically a ground other  than ground of law. He has posited that the determination of the classification of the ground depends on the question(s) raised and nature of the fact(s)  involved. Therefore, where the ground of appeal against a decision rooted on exercise of discretion is predicated on established undisputed facts, the leaned counsel noted, the ground is one of law. The learned counsel for the Appellant refers to the case of Diamond Bank Plc v. Partnership Investment Co. (2009) 12 S.C (pt. 11)159 at 17; where it was held that.
“It is settled that where facts are not in dispute and the only complaint, is as to the way and manner the lower court has applied the law to those established undisputed facts, (as appear in the instant Appeal), the ground of Appeal, is one of law. See the case of Metal Construction (WA) Ltd v. Migilore & Ors.”
Now, Section 242(1) of the 1999 Constitution provides thus: “subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or that High Court or the Court of Appeal.”
Section 241(1) on the other hand provides that: “An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases.
(a) Final decisions in any civil or criminal proceedings before the Federal High court or a High court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
In Investors International (London) Ltd. v. First Bank of Nigeria Plc. (2008) ALL FWLR (pt, 405) 7770, 1782 paras. B-C relied upon by the learned Counsel for the 1st and 2nd Respondents; per Salami, JCA (as he then was) delivering the lead Judgment of this Court, Lagos Division, had cause to pronounce on an objection of a similar nature to the one at hand and held first of all on the nature of the Judgment sought to be appealed against; that it did not finally determine the rights of the parties that:
“The test whether a decision is final or interlocutory was settled by the supreme court in the case of Akinsanya v. UBA Ltd.(1986) 4 NWLR (Pt.35) 273 where the Supreme Court adopting the test set down in Bozson v. Altricham U.D.C. (1903) 1 QB 574, held the appropriate test to be applied as follows:-
” Does the Judgment or order as made finally dispose of the right of the parties? If a does, then the order is a final order, if it does not, it is interlocutory.
See also Blay & Ors. v. Solomon (1947) WACA 175; William Ude & Ors. v. Josiah Agu & Ors. (1961) 1 ALL NLR 65 and Falola v.  U.B.N Plc. (2005) 7 NWLR (Pt 924) 405, 149 & 426-7. Learned trial Judge in the circumstance not having disposed of the rights of the parties the decision is interlocutory.”

On the question whether the appeal was as of right or with leave His Lordship further held: “It could therefore be appealed against as of right under section 241(1) (b) if all the grounds involved were issues of law, Learned Counsel for the Appellant conceded that only some of the grounds raised issue of law alone. For the appeal to be competent, the grounds of appeal must be of law alone and any ground of appeal that “is not of law simpliciter will not support a competent appeal under section 241(1) (b) of the Constitution, See Comex Ltd. v. N.A.B. Ltd. (1999) 3 NWLR (Pt 496) 643, 654. The appeal can only be competent in view of the concession of the learned Counsel for the appellant if the leave of this Court or that of the Lagos State High Court was sought and obtained. In the absence of such leave, the appeal is of course incompetent. ”
It would be recalled that the Supreme Court in the recent case of F.B.N Plc, v. T.S.A Ltd. (2010) 4-7 S.C (pt.1) at 228; threw more light on the vexed issue of distinction and classification of Grounds of Appeal as either of facts, mixed law and facts and/or Grounds of Law simpliciter in an objection of this nature, and the guide lines to be followed in the determination of the nature of such grounds, when their Lordships intoned inter alia:
“When a party objects to a ground of appeal on the ground that it raises a question of fact or of mixed law and fact and that the requisite leave has not been obtained, the court will determine the question on a reasonable understanding of the nature of the ground of appeal and not what the party raising the objection may have misconceived to be the question involved on the ground of appeal filed by the appellant the important yardstick for the classification of a Ground of Appeal is not the form of the question it raises but for instance:-
(a) Where the Ground of Appeal shows that the Trial Court or Appellate Court misunderstood the law or misapplied the law to the fact it is certainly a ground of law;
(b) Where the Ground suggests an invitation to the Court where an Appeal is lodged to investigate the existence or otherwise of certain facts made by the Trial Court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact;
(c) Where the questions which the court is bound to answer in accordance with a Rule of Law arise out of statutory provisions and interpretation of documents, it is on law;
(d) Where the question is one that will require questioning the evaluation of the facts by the trial Court before application of the law it is a ground of mixed law and fact,
(e) Where the Ground of Appeal questions the exercise of the discretion by a trial Court, it is undoubtedly not a Ground of law but at best a ground of mixed law and facts because the manner in which a Court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstance of each case.
Therefore “where the Ground complains of the lower court’s use of wrong principle in the exercise of its discretion, the facts and circumstance in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the alleged wrong principle and therefore one of law. See Tabai JSC in Anukam v. Anikam (2008) 1-2 S.C. 34 at 42.”The above illuminating postulates are in fine with the views expressed in the article title “Error of Law in Administrative Law” by C.T. Emery and Professor B. Smythe Lecturers in Law at the University of Durham culled from Volume 100 of “The Law Quarterly Review October Edition, 1984” and quoted with approval by the Emeritus Judicial Icon Eso, JSC; in J.B. Ogbechie & Ors. v. Gabriel Onochie & Ors. (1986) 3 S.C 54 at pp, 58- 61. On his part, Nnaemeka-Agu, JSC, in the case of Paul Nwadike & Ors. v. Cletus Ibekwe & Ors (1987) 72 S.C 14 at pp. s2-86; when equally confronted with the situation we have found ourselves, relied on the dictum of Eso, JSC, in Ogbechie & ors. v. Gabriel Onochie & ors (supra) and held thus:
“I must pause here to observe that it is a recognized fact that the line of distinction between law simpliciter and mixed law and fact is a very thin one.
But one does not convert a ground of mixed law and fact into a ground of law by simply christening it “error in law” or “misdirection in law.” It is always necessary to construe the ground with particulars thereof.”
The learned Law Lord of blessed memory in that illuminating Judgment, after a careful analysis of other decided foreign and local cases like Clarke v. Edinburgh e.t.c, Tramways (1919) S.C. (H.L.) 35, Fatoyinbo v. Williams (1956) 87; Edwards (Inspector of Taxes) v. Bairstow & Anor. (1955) All E.R.48 at 56; Cooper v. Stubbs (1925) 2K.8. 277 and Currie v. Inland Revenue commissioners (1921) 2 K.B. at 536 and adopting subsequently the dictum of Eso, JSC, in the case cited above; held that a ground which complains that the Judgment is against the weight of evidence is a ground of fact and that findings of fact are matters within the province of the court of trial. He took a further view that in general terms, it can be said that all Grounds of Appeal which raise facts which warrant some determination either way are Grounds of fact. Finally, he posited that where, however, the question raised by the Ground is one of law as applied to disputed facts; or the Ground raises partly law and partly facts, it is a ground of mixed law and fact. He then advised that the Ground with its particulars ought to be regarded as a whole.
Turning specifically to the question as to when a Ground of Appeal is that of law simpliciter, His Lordship went further to assert as follows:
“(i) It is an error in law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors; See O’ Kelly v. Trust-house Forte P.I.C. (1983) 3 All E.R. at p.468.
(ii) Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases, and inferences drawn therfrom are grounds of law: Ogbechie v. Onochie (supra) at 491 to 492.
(iii) Where a ground deals merely with a matter of inference even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts.
Edwards (Inspector of Taxes) v. Bairstow & Anor, (supra) page 55; H.L. For, for many years, it has been recognized that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary fact, are matters upon which an appellate court is as competent as a court of trial: see Benmax v. Austin Motor Co. Ltd. (1945) All E.R. 326 at p.327.
(iv) Where a tribunal states the law on a point wrongly, it commits an error in law.

On a Ground of Appeal which complains of a misdirection in law, Nnaemeka-Agu, J.S.C., again in the case of Nwadike & Ors. v. Ibekwe & Ors. (Supra), postulated thus:
“For the word misdirection originated from the legal and constitutional right of every party to a trial by a jury to have the case which he had made either in pursuit or defence, fairly submitted to the consideration of the tribunal (see  Bray v. Ford (1995) A.C 44 at P. 49. In our system in which the Judge is Judge and Jury misdirection occurs when the Judge misconceives the issues, whether of facts or law, or summarizes the evidence inadequately or incorrectly. See Chidiak v. Laguda (1964) 1 NWLR 123 at P.125. He may commit misdirection either by a positive act or by non-direction. But when his error relates to his findings it cannot properly be called misdirection; it could be an error in law.”Going by the authorities above highlighted, it would be necessary and appropriate to assess of the Grounds of Appeal and the particulars thereof, in order to determine whether the said Grounds as filed by the Appellant fall within the criteria enumerated above so as to render them as either Grounds of mixed law and facts or Grounds of law simpliciter as contended by the respective learned counsel for the parties in this Appeal. In so doing the Grounds of Appeal shall be and hereby reproduced hereunder with their respective particulars as follows:
“GROUND I:
The decision/Ruling is against the weight of evidence
“GROUND 2:
The trial erred in law in relying on the case of Aromire v. Awoyemi (1972) 1 ALL NLR 105; to refuse the Appellant’s application for joinder on the ground that the claimants had no cause of action or made any claim against the Appellant, when
PARTICULARS
(i) The ratio decidendi in Aromire v. Awoyemi (1972) 1 ALL NLR 105 is restricted to claim in damages for trespass and not a statutory relief of declaration of title.
(ii) The decision in Aromire v. Awoyemi (supra) 105 on joinder of party was made on the application of the provision of order 4 Rule 5(1) of old Lagos State High Court (Civil Procedure) Rule, 2005 provision on joinder of party.
(iii) Under the Kwara State, High Court (Civil Procedure) Rule, 2005, it is not necessary that every defendant under an application for joinder of party should be interested in all the reliefs before the court or be interested in every cause of action before the court.
(iv) The Appellant’s interest in the subject matter of the case are not adverse to that of the Defendants in this case.
“GROUND 3
The lower court further erred in law in failing to consider and/for consider adequately appellants’ counsel’s reply address when it held thus:
“… with regards (sic) the further and better affidavit to which a written address is attached and filed by the counsel tot he person sought to he joined, Mr. Bamogboye has argued that after the written address in support of motion, all that the applicant is entitled to is a reply on point of law; and not re-argue his case. I think he is right…” and which decision has occasioned a miscarried of justice, when…”
PARTICULARS
(i) All the points addressed by the Appellant’s reply address are in the main the legal consequences of the application of laws to undisputed facts in the affidavit evidence before the court.
(ii) All the points of law and issue argued and addressed in the Appellant’s Reply address are responses to e issues raised in the claimant’s written address and are not covered by the Appellant’s written address.
(iii) The learned trial judge failed to appreciate that the Claimant’s counsel objection to the Appellant’s Reply address is ad to form and content of the process which are curable by Order 4 Rule 191) of the Kwara State High Court (Civil Procedure) Rule, 2005.
(iv) It is the judicial duty of a trial Judge to provide ratio decidendi to justify any of his decision. No. Reason was given in the ruling by the court in holding that the Appellant by its reply address only re-argued his application.
(v) The decision of the court is injudicious because the trial judge failed to provide any ratio for not evaluating the Appellant’s reply address.
(vi) The objection raised by the Claimants’ counsel, to the Appellant’s reply address constitute a breach of the provision of order 4 Rules 2(1) & (2) (ibid).
“GROUND 4
The trial Judge again erred in law and failed in his judicial responsibility when he failed to make any finding expressly or implied, as to whether or not, the Appellant, by virtue of the provision of section 196 of the Local Government Law of Kwara State, Cap. 92, 1976 has become assigned to and vested with the rights, interest, obligation and liability of the dissolved Ilorin Local Government,  being the acquisitive authority of the land in dispute as evidenced by Exhibit ‘A’ and this error has occasioned as miscarriage of justice when
PARTICULARS
(i) The provision of section 196(2)(b) of the Local Government Law of Kwara State, Cap 92, 1976 being an extant law, the  lower court ought to have taken judicial notice of, and make its findings on its application.
(ii) The un-impeached and uncontroverted evidence before the trial court was that the Appellant ws created out of the defunct Ilorin Local Government and became vested with the disclosed Local Government right liabilities and interest.
(iii) Courts are bound to pronounce on all material issues properly raised before it.
“GROUND 5
The learned trial judge erred in law when he held that:-
“I agreed … that the joinder of a party at this stage will not only create a lot of conclusion into the case it will also he prejudicial to them more so when there is nothing to show that claimants have any claim against the person sought to be joined… (sic) like I said earlier in this ruling, the claim of the
plaintiff against the Defendant is damage for trespass and wilful destruction of economic tree and farm crops. This, I trust say is personal to the claimant and has nothing to do with a third party like Ilorin west Local Government when
PARTICULARS
(i) The trial court failed to distinguish between the statutory relief of declaration of title being the claimant’s main claim and the ancillary claim of damages for trespass.
(ii) The core issue before the lower court is ownership of parcel of land in dispute to which the Appellant has disclosed interests.
(iii) whether an action is personal or transmissible in nature is not a consideration for joinder of party.
(iv) A person becomes a necessary party to a suit so that he could be bound by the result of the action, and the question to be settled.
(v) It is unnecessary that every defendant should be interested in all the reliefs before the court or be interested in the course of action to make such defendant a necessary party.
(vi) None of the parties canvassed issue of fair hearing before the court hence the trial judge failed to appreciate that a court cannot come to conclusion on any point not in evidence.
“GROUND 6
The learned trial Judge misdirected himself in raw and came to a perverse finding which has occasioned a miscarriage of justice to the Appellant when he held thus;-
“It is interesting to note that the writ of summons in this case was filed by the Plaintiff an 11/10/2002, against the defendant the case has been handle by two other High court before same was reassigned to this court in October, 2010 to start de novo. So far, hearing has commenced following which one witness has testified and discharged. I agree … that the jounder of a party at this stage will not only create a lot of confusion into this case, it will also be prejudicial to the claimants and compromise fair hearing to them…”
PARTICULARS
(i) An application for joinder of a party may be made at any stage of the proceedings.
(ii) The primary consideration in an application for joinder is whether the Applicant will be bound by the outcome of the case and not whether hearing has commenced before the application is made.
(iii) Since all the material evidence have not been placed before the court, the decision of the court it pre-emptory and biased as there is no evidence before the court to show that granting the Appellant’s application will prejudicial the claimant’s case.
(iv) Any decision arrived at by the trial judge on the claimant’s claim for declaration of title will affect the Appellant as the acquisitive authority with disclosed interest.
(v) The decision of the court infringes on the right of fair hearing of the Appellant as provided for under constitution or Federal Republic of Nigeria, and it’s to that extent a nullity.
“GROUND 7
The trial Judge erred the in law when on the application of order 11 Rule 2(4) of the Kwara State High Court (Civil Procedure) Rules 2005 failed to evaluate the Appellant’s reply address and thus dismissed the Appellant’s application on the consideration of only the claimant’s Written Address.”
PARTICULARS
(i) The trial Judge having failed to consider the reply address of the appellant’s counsel, on erroneous ground that same is not on “point of Law” the trial ceased to be fair within the provision of section 36(1) of the 1999 constitution.
(ii) The court failed to appreciate that, the Appellant reserves the right of reply to every new issue raised in the claimant’s written address.
After a careful perusal of all the Grounds of Appeal as couched including their nature and particulars, I am of the considered view and upon being well guided by the authorities above cited that although it is always not easy to distinguish a ground of law from that of fact or that of mixed law and fact, where most, if not all of the Grounds of Appeal herein, complain of:-
1. Misunderstanding by the trial court of the law and/or misapplication of the law to facts already established or proved and admitted;
2. Error of omission or commission and injudicious exercise of the learned trial judge’s judicial duty; and above all
3. Breach of the Appellant’s constitutional right to fair hearing by certain conducts of the learned trial Judge at the hearing of the application for joinder; the grounds are all of law and not of mixed law and facts as purported by the learned counsel for the claimant’s/1st & 2nd Respondents. See again Ifediora & Ors. v. Ben Ume & Ors. 919880 3 SCNJ (pt.II) 193.
I derive considerable inspiration and authority on the position I have taken from the dictum of Aderemi, JSC; in the case of F.B.N. v. Kayode Abraham (2008) 36 NSCQR 1058 at 1073 lines C-G; who upon being confronted with a similar scenario where all of the Grounds of Appeal complained of errors in Law committed by the court of Appeal and the Respondent raised a preliminary objection to the competence of the Grounds as in our instant case, held as follows:-
“The important consideration in the determination of the nature of a Ground of Appeal is not the form of the ground rather it is the question it raises. Indeed, a ground of appeal questioning the exercise of discretion by a lower Court is a ground not of law, but at best, of mixed law and facts…
I have had a careful examination of the four grounds of appeal and I am clear on any mind that they all relate to an alleged misunderstanding of by the lower Court of the law or a misapplication of the law to the accepted factual contents of the claims as reproduced supra. Therefore where as in the instant case, the Grounds of Appeal reveal a misunderstanding by the Court below or misapplication of the law to the settled and admitted factual contents of the claim such grounds are pure grounds of law. See (1) Ogbechie v. Onochie  (1986) 2 NWLR (pt 23) 484, (2) Metal Construction (W.A) Ltd. v.  Migliore (1990) 7 NWLR (Pt. 126) 299 and (3) P.N Udom TradingLtd.  v. Sunday Abere (2001) 11 NWLR (Pt 729) 114. The preliminary objection is consequently over ruled. All the four Grounds of Appeal are pure grounds of law and they are competent.”
The learned counsel for the 1st and 2nd Respondents also raised a pertinent issue as to the incompetence of Ground 4 of the Notice of Appeal as, according to him, that Ground did not emanate from the Judgment of the Court below. For the avoidance of doubt, GROUND 4 and the particulars thereof as I said earlier;  complain of error of law committed by the learned trial Judge in failing to pronounce on the provision of Section 196(2) (b) of the Local Government Law of Kwara state cap. 92, 1976 as to whether the Appellant became vested with the rights, interest, obligations and liabilities of the dissolved Ilorin Local Government, the Appellant having become the acquisitive Authority as evidenced by Exhibit A to the Application for joinder so as to qualify her as an interested party to the claim of the claimants/1st and 2nd Respondents in the lower Court.
By the particulars, the Appellants assert that the said section of the Local Government Law being extant, the court ought to have taken Judicial Notice of same and made findings on its applicability in view of the uncontroverted evidence that the Appellant was a creation of the defunct Ilorin Local Government Area. Moreover, the Appellant also complains from the particulars that the Courts are bound to pronounce on all material issues before them properly raised by any or all of the parties to the suit.
Although the Learned counsel for the 1st and 2nd Respondents has not cited any authority to back up his submission on the need for a  ground of appeal to be couched from the ratio decidendi of the trial Court as in this case, there are authorities galore and it is now so firmly established as rightly submitted by the learned counsel and it is not in  doubt that a ground of appeal must be raised only with respect to matters arising from the proceedings before the court whose decision is being challenged.
Furthermore, it is also trite that grounds of appeal and issues formulated there from for determination which do not emanate from the Judgment appealed against are incompetent and ought to be struck out.
see the cases of NAB vs. Comex Ltd. (1996) 6 N.W.L.R. (pt.608) 648 at 668 paragraph E Makinde v. Adeogun (2009) 1 NWLR (Pt.1123) 575;  Salami v. Muhammed (2009) 9 N.W.L.R. (pt 673) 469 and Scheeps v. M.Z. “S. Araz- (2000) 15 N.W.L.R, (pt. 691) 622.
The need for Grounds of appeal and issues formulated there from to arise from the ratio decidendi of the court or tribunal against which decision is being appealed has been stressed by the supreme court in Saraki v. Kotoye (1992) 9 N.W.L.R. (pt 261) 156 at 184 inter alia:
“It is a well settled proposition of law in respect of which there can hardly  be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision – see Egbe v. Alhaji (1990) 1 NWLR (pt.128) 546 at 590. Grounds of Appeal are not formulated in nubibus. They must be in firma terra, namely arise from   the judgment. However meritorious the ground of appeal, based either on points of critical constitutional importance of general public interest, it must be connected with a controversy between the parties. This is the precondition for the vesting of the judicial powers of the constitution in the courts – See Senator Adesanya v. President of Nigeria (1981) 1 NCLR 358. Like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment appealed against.”
See Ogunbiyi v. Ishola (1996) 5 SCNJ 143 at 154 and also Alakija v. Abdulai (1998) SCNJ 1.”
Indeed, in Ikweki v. Ebele (2005) 2 SC (Pt.11) 96 at 108 – 109, Oguntade JSC quoted with approval the dictum of Iguh JSC in Atoyebi v. Govt. Of Oyo State (1994) 5 NWLR (pt.344) 290 at 305 that:-
An appeal presupposes the existence of some decision which is appealed against on a given point or points. Where therefore there is no complaint in respect of a decision that has arisen from a judgment appealed against, such a decision may not form the basis of an issue for determination by an appellate court. The appellate jurisdiction of this court inter alia is to review the decisions/and or judgments of the court of appeal. If therefore, an issue never arose nor called for the determination of the court of Appeal which therefore did not consider the issues, it seems to me that such an issue may nor form the basis of an appeal to the Supreme Court and a purported appeal to this court on such an issue will be incompetent and may be struck out. See Uhunnwangho v. Okojie (1989) 5 NWLR (pt.122) 471 at 491.”
The learned Oguntade JSC, on his part added at page 110 paragraphs 10 to 15 of the Report that:
“It only remains for me to say that the principle enunciated in the above cases applies with equal force to appeals emanating from the High court to the court of Appeal. It is impermissible for a person to found his right of appeal from the decision of the High Court to the Court of Appeal on a matter that did not arise in tie course of proceedings before the High court.” See WAEC v. Adeyanju (2008) 34 NSCQR 732; Veepee Ind. Ltd. v. C.L.L. (2008) 34 NSCQR 904.I have taken time to have a resume of what transpired in the Lower court and I am of the candid view that the learned counsel for the claimants/Respondents cannot seriously contend that Ground 4 of the Notice of Appeal does not arise from the Judgment or ratio decidendi of the court below. Where the court discountenanced the Further and Better Affidavit of the Appellant and their Reply Address of whatever name same is called, without pronouncing on the issues of Law raised in the Address simply because in his opinion order 11 Rule 2(3) of the Kwara state High court (civil Procedure) Rules, 2005 does not make provision for such a procedure; an issue of law had/has arisen either by way of misconception, misinterpretation or an abdication of the adjudicatory function of the judex. See FBN plc, v. T.S.A Ltd. (2010) 4 – 7 S.C (Pt.1) at 28 and criteria (a) and (c) thereof which are to the effect that where a ground of Appeal shows that the trial court or Appellate court misunderstood the law and misapplied the law to the fact, it is certainly questions which the court is bound to answer in accordance with a Rule of Law arising out of statutory provisions and interpretation of documents, and that it is a question of Law.
In the instant case, I have from all ramifications observed that although the court made pronouncements on the issue as to why the Appellant should not be joined the salient issue herein (and that is the more reason why this Ground of Appeal cannot be said not to have emanated from the decision of the Court below), is whether the Court pronounced on the contents of the Reply Address and Further and Better-Affidavit? I dare say that he did not. In Abubakar v. Yar’Adua (2008) 4 NWLR (pt. 1078) 467 at 511 paras. B-D per Tobi J.S.C. reiterated the time-honoured principle of law that the object of the court is not to punish litigants or their Counsel for mistakes made in the litigation process as blunders and mistakes are likely to occur in that process particularly with the volatility and fickle-minded nature of man and in this country where the citizens are saddled with manifold problems in the rat race for survival. Thus rather than punish litigants for the fault of counsel, as in this case, who prepared the processes which were discountenanced, the processes ought to be countenanced for whatever they were worth without prejudice to whatever the learned trial Judge would have decided at last.
Just as a Court in criminal cases is bound to consider all the defences referred by an Accused person no matter how useless or stupid (see per Aderemi JSC, Abdullahi v. State (2008) 94 NSCQR 508 at 541-542;) so is a trial Court in civil matters is bound to consider and pronounce particularly on statutes cited for interpretation and to buttress a party’s case.
After all a Judgment or Ruling as in this case, is supposed to demonstrate in full a dispassionate consideration of the issues properly raised and heard and must reflect the result of such exercise. See Ojogbue v. Nnubia & 4 Ors. (1972) S.C. 227 at 236; Ejike v. Nwankwoala & Ors. (1984) 12 S.C 301 at 330-335.
From the foregoing authorities, I am unable to agree with the submissions of the learned counsel for the Claimants/Respondent that Ground 4 of the Notice of Appeal is incompetent. I hold that Ground 4 is competent in that it arose from the refusal of the trial Judge to pronounce on statutory provisions and amongst other things to provide a ratio decidendi in his Ruling on the processes filed by the Appellant and Defendants/Respondents respectively.
Finally, let me briefly comment on the contention of the learned Counsel for the Claimants/Respondents on the authority of Investors international (London) Ltd. v. First Bank of Nigeria Plc. (supra) that Grounds 2, 3, 5, 6 and 7 challenge the exercise of discretion and evaluation of evidence by the Court below and on that premise at best grounds of mixed law and facts, I must agree with the submission of learned counsel for the Appellant and the authorities of Diamond Bank Plc. v. Partnership Investment Co. (Supra) citing Metal Construction (W.A) Ltd. v. Migilore & Ors; cited by him and am of the candid view that where as in this case, the gravamen of all the Grounds is the misapplication or non-appreciation of the law to established or proved facts, notwithstanding that the Appeal emanated from exercise of discretion by the learned trial Judge in the hearing and refusal to grant the Appellant’s Application for joinder; the grounds as I said earlier, are all grounds of law simpliciter.
In Kraus Thompson Org. Ltd. vs. University of Calabar (2004) 4 S.C. (pt. 1) 65 at 81; Musdapher, J.S.C. (as he then was), when confronted with an almost similar submission as to the competence of appeal against an interlocutory decision which was filed without leave, held thus:-
“It is very clear to me that even though, the decision of the trial court may be interlocutory for which leave may be required section 241(1) (b) of the 1999 Constitution provides that an appeal may be as of right from the decisions of High Court to the Court of Appeal in the following cases:-
“(a) Not relevant,
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
By the provision of Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 and the authorities above cited, this Appeal being purely on Grounds of Law, is as of right and leave of the trial High Court and indeed this Court was/is unnecessary. Contrary to the submissions of the learned counsel for the- Claimants/1st and 2nd Respondents, the Grounds of Appeal and indeed the issues formulated therefore are competent notwithstanding that it is interlocutory by nature. Accordingly, the preliminary objection is unmeritorious and is hereby discountenanced and dismissed. Turning to the merit of the Appeal and the main issues for determination and beginning from Issue Number one of the Appellant, the provisions of order 14 which governs parties generally and their joinder in proceedings before the High Court of Kwara State, are very germane. For instance order 14 Rule 1 provides thus:-
“All persons may be joined in one action as claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given  for such claimants as may be found to be entitled to relief and for such relief as  he or they may be entitled to relief and for such claimants as may be found to  be without any amendment.”
By Rule 4 there of: “Any person may be joined as defendant against whom that  right to any relief is alleged to exits, 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. ”
Finally, under 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.”
In my humble opinion the provisions of the above Rules are clear and unambiguous and we need not strain our nerves to seek any external interpretational aids to discover the intention of the Rule maker. I am therefore bound to give them their ordinary, simple, literal and grammatical meanings. see Ojokolobo v. Alamu (1997) 7 SCNJ 98; chief Imah & Anon v Okogbe & Anor. (1993) 9 NWLR (pt 376) 159 and Chief Gani Lawehinmi v. I.G.P & 2 Ors, (2002) 7 NWLR (pt. 767) 606 cited with approval per Ogbuagu, JSC in M.V. Arabella v. NAIC (2008) 94 NSCQR 1091 at 1116-1117.
The learned Counsel for Appellant has rightly stated the cardinal principle for application for joinder like the one at hand which is that the Applicant who so desires to be joined, must demonstrate from the Affidavit in support of the application that he would be bound by the ultimate result of the action since the order(s) of the Court is likely to affect him and his interest prejudiced if not joined.
On the other hand, the learned Counsel for the 1st and 2nd Respondents emphasized and underlined the first part of Rule 4 which provides on the joinder of a defendant against whom they right to any reliefs is alleged to exist. In this connection he has submitted that throughout the Statement of Claim at pages 7 to 10 of the records of proceedings no complaint or relief was sought against the Appellant since she was not even mentioned nor was in existence when the land, the subject matter of the dispute was acquired.
He has cited Foreign Finance corp. v. L.S.D.P.C (1991) 5 SCNJ 52 77 where it was held that a person against whom there is no complaint in a suit is not a competent party. The case of Ige v. Farinde (1994) 7-8 SCNJ 284; where a necessary party was rightly defined as:
“… a party whose presence is essential for the effectual and complete determination of the claim before the Court. It is the party in the absence of whom the Claim cannot be effectually and completely’ determined. Where all the facts before the Court are sufficient for the effectual or complete determination of the claim between the parties before the Court, the applicant cannot be a necessary party and his application for joinder in the determination of the claim will be refused”, was cited in support of his submission. There is no doubt that as a general rule a party against whom a plaintiff has no claim or relief cannot be joined. Oputa, J. (as he then was) in Egonu & 3 Ors. v. Egonu & Anon (1973) 3 ECSLR (pt. II) 664) while interpreting Order 4 Rule 5(1) and (2) of the East Central State High Court Rules which was in pari materia with order 16 Rule 11 the R.S.C. England; and almost replicated herein in the Rules that have fallen for interpretation, cited a host of English cases which have founded the basis of the position our Courts have taken on joinder of parties. See also per Ogbuagu, JSC, in REG, Trustees v. M.H.W.U.N (2008) 34 NSCQR 327 at 400 who relied on the above cited case and held as to who necessary parties are, that all those who claim some share of interest in the subject matter of the suit or who may be affected by the result, as well as those who the court may join suo motu are necessary parties as their presence before the Court may be necessary in order to enable the Court to effectively and effectually or completely adjudicate upon and settle all the questions involved or in controversy.
On the essence and purport of joinder of party in an action, His Lordship further relied on Chinweze & Anor, v. Masi (Mrs,) & Anon (1989) 1 SCNJ 148 at 156 where the apex Court had enunciated the principle that the Court has a duty to prevent the expensive luxury of having separate suits where it can, by joinder settle the whole matter in one action. Furthermore, where the determination of one of the claims between the plaintiffs will involve the Plaintiffs and 1st Defendant (in this case the Claimants/1st and 2nd  Respondents and 3rd to 5th Defendants/Respondents), would involve and affect the person sought to be joined (in this case the Applicant/Appellant’s) legal rights over property or his pecuniary interest, the trial Court was right in making the 2nd Defendant a party. Finally, their Lordships posited that it is the policy of the Courts to avoid as much as possible, multiplicity of suits.
Taking a cue from the dicta of their Lordships in the cases above cited and the facts of this case as deposed to by the parties in their respective Affidavits and Counter-Affidavits; can the 1st and 2nd Respondents seriously contend as they had done that the Applicant/Appellant had not fulfilled the conditions for a favourable exercise of the lower Court’s discretion because in the first place the 1st and 2nd Respondents had no claim against the Appellant; secondly that the 3rd and 5th Respondents had no Counter-claim touching the Appellant and that thirdly and fourthly, the Appellant was not in existence at the time of the acquisition of the land in dispute nor was the Ilorin Local Government from which it was excised involved in the acquisition of the disputed land in any way?
To answer these questions, it is necessary to have recourse to the Records particularly the processes filed by the parties. From what transpired at the court below, the claimants/1st and 2nd Respondents claimed in both their writ of summons and statement of claim for special damages in trespass and a “Declaration that premised on the Federal Government’s acquisition and resettlement, the Plaintiffs are the owners of the whole of Obaninsunwa village land.” see page 2 of the Records. At pages 7 & 8 of the Records the claimant/1st and 2nd Respondents also pleaded in paragraphs 4- 12 of their Statement of Claim thus:-
“4. The Plaintiffs aver that after a long stay spanning generations at the present sites of Ilorin Airport the Federal Government in 1975 acquired their land for the construction of Ilorin International Airport.
“5. The Plaintiffs consequent on the acquisition were given the option of compensation or resettlement, this alternatives were convey to them through the then Emir Ilorin, Late Alhaji Sulu Gambari, and the then Governor of  Kwara State, Late Col. Ibrahim Taiwo.
“6. The Plaintiffs aver that they opted for resettlement and the wide expanse opposite their then settlement and now opposite the Ilorin Airport along Ilorin-Ogbomosho Road, Ilorin of which the plaintiffs claimed to be customary Owners were acquired for that purpose.
“7. The Plaintiffs aver that the Defendants were given due notice of the acquisition and a site plan demarcating the extent of acquisition. The two   documents are pleaded.
“8. The Plaintiffs aver that the Defendants were duly paid compensation for disturbance, improvements and economic trees in the acquired land.
“9. The Plaintiffs aver that Defendants’ claimed customary ownership haven been extinguished they enjoyed possession and exercised uninhibited acts of ownership over the land subject of dispute which they also named Obaninsunwa Town/Village.
“10. The Plaintiffs aver that after they had enjoyed unchallenged and uninterrupted possession an ownership of the land subject of dispute for 26 years,    the Defendants sometimes in the year 2001 attempted to enter into a portion of the land.
“11. The challenged led to a dispute which was referred to the Ministry of Lands and Housing, Ilorin. The Ministry waded into the matter and communicated the official government position to the Defendants vide a letter dated 27th July, 2001 the letter is pleaded.
“12. The Plaintiff avers that the plaintiffs have enjoyed unhindered and unchallenged possession and exercise of ownership over the land in dispute over a continuous period of 26 years can no longer be challenged.”
The 1st -3rd Defendants (now 3rd to 5th Respondents) on the other hand traversed the above averments of the plaintiffs/1st and 2nd Respondents in paragraphs 8-12 of their Amended statement of Defence but of utmost importance is paragraph B thereof wherein they averred as follows:-
“8. That following the acquisition of the present site of international Airport by the Kwara state Govt./Ilorin, Local Govt. Authonty from the plaintiffs, family, a resettlement scheme was contrived for the plaintiffs’ family and a portion of the  defendants land was acquired for that purpose. A letter of acquisition of the said portion of land is hereby pleaded.” ‘(See pages 13 and 14 of the Records).
It is also worthy of note that the Applicant seeking to be joined (now Appellant) stated the Grounds for her Application inter alia:-
“1. The land in dispute forms part or a larger parcel or land acquired by the applicant in 1975.
2. The applicant is under statutory obligation to pay pecuniary damages to the Defendant’s family in event of beach of resettlement scheme.
3. The applicant’s presence is crucial and fundamental to the hearing of the case.”
By the averments in the affidavit in support, the Appellant in tandem with the 1st and 2nd Respondents’ pleadings, deposed to the facts that the land the subject matter of the dispute was jointly acquired by the then Ilorin Local Government, and the Kwara State Government some time in 1975 and the Notice of Acquisition was duly annexed to the affidavit in support of the Application for joinder and marked Exhibit A. That Notice dated 6/6/76 speaks for itself.
consequent upon the issuance of Exhibit A and before the claimants, family was allowed to move to the acquired land from Defendants family, she further stated, both the Kwara state Government and Applicant/Appellant entered into series of negotiations in order to determine the size of the land acquired for the resettlement scheme which included: (1) The claimants family and neighbouring communities of Ewi Tongolo-Momu, Gaa-Adamu and Gaa-Kudu, (2) Amount of compensation payable on the assessment of economic trees, farm crops and other investments on the acquired land and (3) undertaking to pay damages in the event the Appellant exceeded the agreed acquired land.
Consequently upon the above facts, the Applicant in conjunction with the Kwara state Government through the Ministry of Lands and Housing drew a survey plan of the area acquired from the Defendant’s family setting out the limits of the area of settlement which site plan was prepared and identified as Airport site Plan No. 19822 TPO 12013-1975 as agreement between the Defendants’ family and the Applicant.
Finally, the Applicant deposed in paragraph 2 (e)-(g) of the Affidavit that the issue in dispute in the suit is the precise extent of the acquisition made by the Applicant-vide Exhibit A; that Applicant’s presence in the suit will enable the court to completely determine all the disputes in the suit and that the Applicant became aware of the suit when other resettled communities representatives on the acquired land demanded for the Applicant’s obligation to them under the resettlement scheme.
It would be recalled that the Appellant in her written Address in support of the Application eluded to the facts deposed to in her affidavit in respect of their interest to the disputed land she being in joint acquisition of same. See pages 20-22 of the Records. In opposing the application the claimants/1st and 2nd Respondents deposed to the following facts in paragraphs 4 tog of their Counter-Affidavit:-
“4. That at all times of the acquisition of our original site for the Ilorin Airport and our resettlement we dealt with the Kwari state Government through the Governor, Late col. Ibrahim Taiwo and the Ministry of Lands, and never the Ilorin West Local Government, which is was not even in existence in 1975 the material time.
“5. That we also, dealt with the Emir of Ilorin whose assistance the Government of Kwara State sought to convince us to allow the acquisition of our land and the resettlement.
“6. That the Ilorin west Local Government which was not in existence nor any Local Government was involved to the best of my knowledge.
“7. That our claims and reliefs are clearly in this case, they relate to the tortuous acts of the Defendants and are absolutely unrelated to the Ilorin West Local Government against which we have no complain or claim whatever.
“8. That the counsel to the Applicant I verily believe is a meddlesome interloper and does possess the authority of the Ilorin West Local Government to file this application.
The Claimants further alleged in paragraphs 14, 15 and 16 of the Counter-Affidavit inter alia:-
“14. That I verily believe this application is a ploy by the Defendants who have vowed to frustrate this case to cause confusion in the proceedings and further prolong this case by instigating this application 9 years after the institution of this case.
“15. That the Defendants have boasted several times to frustrate this case.
“16. That none of the parties in all the processes before the court made reference to the Ilorin West Local Government, and nee have no desire to prosecute this case against Ilorin West Local Government.”
It was based on the above averments in the counter-Affidavit of the Claimants/Respondents that the Applicant/Appellant deposed to a further and BETTER AFFIDAVIT IN SUPPORT OF THE MOTION of 8/2/2011 wherein Iyabode Abubakar (Mrs.) the Litigation Clerk in the Law Firms of Goke B. Akande & co. deposed the facts in paragraphs 2(6) (c), (d), (e), (f), (g), (h), (i)’ to debunk the allegations contained in the Claimants Counter-Affidavit. The Learned counsel for the Appellant also filed a Reply Address where in paragraph 2.2 to 2.3 he addressed on the allegations touching on learned counsel for the Appellant’s integrity.
Learned counsel then proceeded to address on the issue as to whether the Ilorin west Local Government as at 1975-1976 when the land in dispute was acquired or as presently constituted as Ilorin west Local Government, she had partaken in the acquisition process or whether the Appellant has any interest in the subject matter so as to quality her to be joined in view of the contention of the claimants that none of the parities in the case mentioned the Appellant in any of their processes filed.
More so, the Claimants denied dealing with the Appellant throughout the acquisition process but that their transactions were directly with the Governor of Kwara state (then col. Ibrahim Taiwo of blessed memory) and the Late Emir’ Indeed they had even contended that the Ilorin west did not exist.
To prove that they acted jointly with the Kwara state Government and indeed that the Emir was the Agent of the then Ilorin, and indeed Ilorin west Local Government of which the Appellant was on off shoot, they brought in the argument of the assigned rights, interest obligation and liabilities as vested in the Applicant by virtue of the Local Government Law, cap. 92, Laws of Kwara state, 1976 in their Address to the Further and Better Affidavit.
As regards the assertion that the Local Government had no role to play and that they (claimants) dealt directly with the Emir the Appellants then brought up the submission in paragraphs 2.12, 2.13 through 2.15 that the acquisition of the Land for resettlement of the Claimants was a direct function of the Applicant before promulgation of the Land Use Act of 1978 and that the Emir of Ilorin being involved in the acquisition scheme was a member-in-council of the Applicants (Ilorin Local Government by virtue of Section 4 of the Native Authorities (Establishment, Appointment & constitution) Notice cap.
77 Laws of Northern Nigeria. Besides the Appellant had also argued that she was in possession of the Emir’s instruction and comprehensive Reports on the acquisition scheme.
on the whole the learned counsel for the Appellant argued that either by virtue of section 4 of the Native Authorities, cap. 77 then in operation in Northern Nigeria in 1975 or the subsequent Law i.e. section 76(1) (2) (a) and section 78 (a)(b) &(c) of the Local Government Law of Kwara State, Cap. 92
of 1976; the role played by the Emir was to the knowledge of the Appellant. In other words, the Emir was an Agent of the Appellant and accordingly if the claimants dealt with the Emir in the acquisition scheme they dealt with the Appellant who is the successor to the defunct Ilorin Local Government.
It is also worthy to note that the 1st to 3rd Defendants (now 3rd to 5th Respondents) also filed what they turned Reply to claimants counter-Affidavit wherein paragraph 3 (c), (d) (e), (f) (g) (h) and (i) they debunked the allegation of conspiracy between the Defendants/Respondents and Applicant/Appellants as contained in the counter Affidavit of the claimants/1st and 2nd Respondents’ More particularly, the Defendants/Respondents insisted that it was the Ilorin Local Government Authority as it then was and which has now been split into Ilorin East, Ilorin west, and Ilorin south Local Governments that wrote a letter to the Defendant’s family that part of the Land upon which the claimant’s community is resettled had been acquired.
Furthermore, the land in dispute falls within the Ilorin west (the Appellant’s) Area of jurisdiction and this Honourable court had earlier ruled that the Acquisitive Authority may be joined as a party. The Defendants also denied instigating the Application for joinder and added that their denial would not prevent the Acquisitive Authority from being joined as a party as they (Defendants) have no control over the matter so as to have boasted to frustrate same. Above all, they as Defendants alluded to the defunct Ilorin Local Government Area of which Ilorin west Local Government is an off shoot as having acquired the land in dispute herein. The Defendants/ Respondent also supported the Reply to the counter-Affidavit of the claimants/Respondents with a written Address.
In the summary of Address by the court below the learned trial Judge, alluded to the further and Better Affidavit of the Appellant at page 53 of the Records thus:-
“By way of reply, counsel to the person sought to be joined filed a further and Better Affidavit of 3 paragraphs and attached thereto a written address in support.”
As for the Reply to the counter Affidavit, the learned trial Judge, mentioned same in passing thus at page 51 of the Records inter alia:-
“The Defendants though did not file a counter-Affidavit against the motion he however filed a reply to the claimants counter-Affidavit and attached to it a written Address wherein he urged the court to discountenance the objection of the claimants”.
Still at page 53 of the Records, the learned trial Judge in refusing to grant the Application sort of agreed with the averments of the claimants and their written Address contrary to the pleadings of the  Defendants/Respondents and the averments in the Reply to the counter- Affidavit, Further and Better Affidavit of the Defendants/Respondents and
Applicant/Appellant and particularly oblivious of Exhibit A tendered by the Appellant and Defendants/Respondents, and held thus:-
“In the instant case, the claimants sued the Defendants claiming special Damages for trespass and wilful destruction of economic trees and maize crops on their farm and declaration of title to Obanisunwa village Land. It is clear from the Writ and Statement of Claim of the Plaintiffs that no claim has been made against Ilorin West Local Government.
It is also clear that the acquisition of the land in dispute and the resettlement scheme that took place thereafter were handled by both Federal and Kwara State Governments with no role at all played by Ilorin west Local At page 54 of the Records, the learned trial Judge continued:
“It is necessary to bear in mind that this suit is at the instance of the claimants. Therefore, it is at their discretion to pursue their claim as against the defendant whom they conceive they have a cause of action. They cannot therefore be compelled by the court to proceed against another person whom they have no desire to sue. See Ige v. Farinde (1994) 7 – 8 SCNJ (Pt.2) 284 X 302.
It is interesting to note that the writ of summons in this case was filed by the Plaintiffs on 11/10/2002, against the Defendants. The case has been handled by two other High Courts before same was reassigned to this court in October, 2010 to start de novo.
So, far, hearing has commenced following which one witness has testified and discharged.
I agree with Mr. Bamigboye that joinder of a party at this stage will not only create a lot of confusion into the case, it will also be prejudicial to the claimants and compromise fair hearing to them moreso when there is nothing to show that the claimants have any claim against the person sought to be joined.
Like I said earlier in this ruling, the claim of the plaintiffs against the Defendants is Damages for trespass and wilful destruction of economic trees and farm crops. This, I must say is personal to the claimant and has nothing to do with a third party like Ilorin west Local Government.”
He finally, unleashed the capper on the Reply to the Claimant’ Counter-Affidavit filed by counsel to the 3rd to 5th Defendants/Respondents and the Applicant’s Reply Address in support of the motion filed by counsel to the person sought to be joined as follows:-
“It is to be noted that the learned counsel to the Defendants though said he is not objecting to the Application for joinder, yet he filed on behalf of the Defendants as process headed reply to claimant’s counter-Affidavit.
Without wasting time, I am of the view that the filing of such process is wrong. I agree with Mr.  J.S. Bamigboye that there is no provision under our Rules for Reply by a party who does not oppose an application.
Since the claimants/Respondents herein did not file any motion support with  affidavit, it is wrong for the Defendants counsel to have filed a counter-Affidavit in opposition to the claimants, counter-Affidavit.
He could only file a counter-affidavit to oppose the application of the person sought to be joined. See O. 11r 2(3) Kwara State High Court Civil procedure Rules 2005.
With regards the further and better Affidavit to which a Written Address is attached and filed by the counsel to the person seeking to be joined, Mr. Bamigboye has argued that after the written and address in support of motion all that the Applicant is entitled to is a Reply on points of law and not to reargue this case, I think he is right.”
From the foregoing, the questions I had earlier posed must be answered in the negative for the following reasons:-
(1) Although it is indubitable that from the writ of Summons and Statement of  Claim Reliefs 1, 3 and 4 were for Special Damages in trespass, General  Damages of N2 Million Naira (Two million only) and an order of perpetual injunction restraining the 3rd to 5th Defendants/Respondents, the second Relief  claimed by the Claimants/1st and 2nd Respondents was for Declaration of title to the land in dispute premised on the Federal Government acquisition and resettlement by which they (claimants/1st and 2ndn.iporoents) had become owners of the whole of Obaninsunwa village land.
(2) By paragraph 8 of the 1st to 3rd Defendants’ (now 3d to 5th Respondents,) Amended Statement of Defence, the said 3rd to 5th Responoents pleaded inter alia:- “8′ That following the acquisition of the present site of international Airport by the Kwara State Govt./Ilorin, local Govt. Authority from the plaintiffs’ family, a resettlement scheme was contrived for the plaintiffs, family and a portion of the defendants land was acquired for that purpose. A letter of acquisition of the said portion of rand is hereby pleaded.”
(3) There was ample evidence from the Affidavit in support of the Application for joinder particularly from the averments of the Appellants and 3d to 5th Respondents nay Exhibit A to the Affidavit (which the court below deliberately ignored), that the land-in dispute was acquired jointly by the Kwara State Government and the defunct Ilorin Local Government which was subsequently split into Ilorin East, Ilorin west and Ilorin south.
(4) There was also ample evidence that the land in dispute falls within the area of jurisdiction of the Appellant (Ilorin west Local Government) which is an off shoot of the defunct Ilorin local Government. (5) Evidence also abound to the effect that even the Emir of Ilorin who the claimants purported to have acted in liaison with the Kwara state Government and Ministry of Lands to the exclusion of the appellant, was not only a Member-in-council of the Appellant by virtue of Section 4 of Native Authorities (Establishment, Appointment’& constitution) Notice, Cap. 77, Laws of Northern Nigeria, which was operative as at 1975 but was consequently an agent of the Appellant for purposes of acquisition of the land in dispute. (6) Also by virtue of sections 76(1), (2xa), and 78(a)(b) and (c) of the Local Government Law of Kwara State, cap.92 of 1976 whatever role the Emir was to play or played in .the acquisition process was to the knowledge and instruction of the Appellant. All these averments of the Appellant and 3rd to 5th Respondents including their submissions in their respects were carefully ignored on the ostensible reason that the Kwara State High court civil Procedure Rule did not provide for the procedure under which the Appellant and 3rd to 5th Respondents predicated their respective processes.
(7) There is also abundant evidence that contrary to hording of the learned trial Judge  that there was no claim against the Appellant and that the   Appellant was  not mentioned and never existed during the acquisition exercise, that the Appellant had demonstrated form the totality of evidence that he was an interested party particularly where she claimed that part of acquired land was reserved for Housing Estate Project/Agricultural purposes and that the dispute between the parties was/is the extent of the boundaries of the land acquired for the resettlement scheme.
Assuming therefore that a declaration of title is made in favour of the claimants/1st and 2nd Respondents, the Appellant’s title to the portion reserved for Housing protect/Agricultural purposes and in respect of which compensation is to be paid to other affected communities may be affected to their detriment’ It was therefore erroneous for the learned trial Judge to have myopically centered the criteria for the grant of the Application for the joinder on the fact that no claim was made against the Appellant and also that the Appellant was not part of the acquisition of the disputed land in spite of the preponderance of the evidence to that effect.
Secondly, by the provision of order 14 Rules 4 and 6(1) it is manifestly clear that it shall not be necessary for the Appellant to be interested in all the reliefs sought by the claimants/1st and 2nd Respondents or to every cause of action included in any proceeding against him, in order to qualify him as an interested party who should merit the judicious exercise of the learned trial Judge’s discretion for him to be joined as a co-defendant. This is because Judgment may be given against any of the Defendants as may be found to be liable according to their respective liability. see Green v. Green (1987) 3 NWLR (PT.61) 48 AT 72. Relying on the above authority and REG. Trustees v. M.H.W.U.N. (2008) 34 NSCQR 321 at 400; Chinweze & Anon n Masi (Mrs.) & Anor. (1989) 1 SCNJ 148 at 156 and Egonu v. Egonu (supra); the Appellant has amply demonstrated that he has a share or interest in the subject matter of the suit and may be affected or bound by the result of the suit as her presence in court may be necessary in order for the court to effectively and effectually adjudicate upon and resolve completely the question in controversy in the dispute. At the stage of the joinder the merits of her defence or the case of the plaintiffs were not in use.
The is because it is settled by the doctrine of standing-by under our jurisdiction, that a person whose interest is to be affected or is in issue in an action who to his knowledge deliberately elects to stand-by watch others fight is cause for him, is equally bound by the result of the action as if he were a party. See Per Ogbuagu, REG. Trustees v. M.H.W.U.N (supra) at 401. Indeed going by the same authority and Chinweze & Anor. v. Masi (Mrs.) & Anor. (supra); The learned trial Judge was duty bound to prevent the expensive luxury of having separate suits filed  by the parties herein, where it can, by joinder settle the whole matter in one action.
Furthermore, where in the determination of one of the claims (id est for declaration of title) between the claimants and Defendants the right of the Appellant would be adversely affected over the disputed land, the learned trial Judge ought to have joined the Appellant in accordance with out jurisprudential policy of the courts avoiding as much as possible, multiplicity of suits or to enable the question in the action be effectually and completely settle. It is for this reason and all the authorities cited, that I hold and I agree with the learned counsel for the Appellant that the case of Aromire v. Awoyemi (1972) 1 All NLR 105 which was decided on the peculiar provision of the old Lagos State High Court Rules is limited in scope since the ratio therein was that once a family unit is sued in a land matter it becomes otiose and unnecessary to join an individual member of the family as a separate party. See Ababanarve v. Nwakhaie (1997) 1 SCNJ 161 at 166 on the same ratio.
On the holding that the joinder of the appellant will not only create a lot of confusion but also prejudice the claimants and compromise fair hearing to them, more so, when there is nothing to show that the claimants have any claim against the Appellant; nothing can be further from the truth and ends of justice in the very restrictive manner the learned trial Judge had interpreted the rules on joinder of parties in spite of the liberal and broad spectrum of order 14 Rules 4 and 6 (1), orders 1 Rule 2; 4 Rule 1(1)(2) and 56 Rule 11 of the Kwara state High court (civil procedure) Rules 2005. As far back as 1g73, three of our most revered and fertile judicial minds and forebears of the apex court per Ibekwe JSC with Dr. Elias C.J.N. and Sir Udoma, JSC, concurring in Odadhe & Ors. V. Okujeni & 2 Ors. (1973) 3 ECSLR (pt.II) 1062 at 1067 (S.C); even approved the broader approach to this subject matter of joinder of parties when they posited inter alia:-
“The rule is that joinder of parties, if it is found to be necessary, may be made at any time during trial with a view to adjudicate upon and settle all question involved in the cause’ The interest of justice demands that, as far as possible, the issues between the parties should be determined once and for all, so as to avoid multiplicity of proceedings. The decision of this court in the case of Onyeama Ezenwa v. Samuel Ikegbunam Mazeli and Others (1955) 15 WACA 67, throws a good deal of light on this aspect of the rule of practice. In that case, the facts were by far less favourable to the plaintiff than the facts in the present case. After the close of the plaintiffs’ and Defendants’ cases and the addresses of counsel, the trial judge adjourned the case sine die, and, before he delivered judgment, he re-opened the hearing and ordered that the third, fourth and sixth respondents be added as plaintiffs.
Delivering the Judgment of the Court, de Commarmond, Acting CJ, as he then was, said at page 69:- I I consider that a trial Judge may, where necessary, re-open the hearing before delivering his final decision. This is just what the learned trial judge did in the present case. The order of joinder was made in the course of the re-opened hearing and I consider that it was properly made.”
In the case before us, joinder was made even before the second defendant opened his case. And it is on record that the learned trial Judge took every necessary step to ensure that the ends of justice were served. In our view, therefore, this complaint is without merit.”
In the case at hand, only one witness had testified whereas in the above cited case, the case had proceeded to judgment and the court had to bend over backwards to re-open same in order to join the third, fourth and sixth Respondents. The heavens would not have fallen and no breach of fair hearing would have been occasioned the claimants if the Appellant were joined and irrespective the age of the case, the wheel of justice grinds gently slowly to its destined end. The learned trial Judge by refusing to grant the application on ground of age of the case had sacrifice justice on the altar of speed and expediency since the land the subject matter of the suit was/is not perishable. Therefore the confusion which the Court below alleged would have ensued if the Appellant were to be joined does/did not arise herein, since the Appellant had shown that by virtue of the sections of the Local Government Law Cap. 92 cited in his address before the Court and the fact that the Appellant is an off shoot of the defunct Ilorin Local Government, she had become seised of the assets, liabilities and interest of the old Local Government more so, when the land in dispute is situated within Appellant’s territorial jurisdiction.
Aside from the foregoing, Exhibit A vested the Appellant (then the Ilorin Local Government), with exclusive power to compulsorily acquire land for public interest before the Land Use Act and the Appellant should be in the best position to even enlighten the Court on the extent of the land acquired
for the resettlement scheme and the portions to which the feuding parties are entitled as I had earlier remarked in my judgment in the unreported Suit No. CA/IL/16/2009 at pages 31-32 between the same parties delivered on 17th March, 2010 although in that case my remark was in respect of the Surveys Department Ministry of Lands and Housing Kwara state.
On the whole this issue is resolved in favour of Appellant.
ISSUE NUMBER TWO
WHETHER IN THE DETERMINATION OF THE APPELLANT’S APPLICATION’ THE FAILURE AND/OR REFUSAL OF THE TRIAL JUDGE TO CONSIDER THE APPELLANT’S COUNSEL’S REPLY ADDRESS HAS NOT OCCASIONED AS A BREACH OF FAIR HEARING?
The Learned Counsel’s for the Appellant’s and 3rd to 5th Respondents grouse on this issue is the neglect/refusal or deliberate failure to consider the Appellant’s Further and Better Affidavit and learned Counsel’s Reply Address together with Reply to the Claimants’ Counter-Affidavit and Written Address in support thereof on the slender ground that same did not comply with the provisions of order 11 Rule 2(4) of the Kwara state High court (civil Procedure) Rules, 2005 which provision was reproduced. Reference was then made to page 55 lines 9-11 0f the Records where the court below made the observation that the Reply Address does not contain “point of Law” under the order above cited; submitting per contra that a perusal of the Address would reveal that at points raised are a summary of legal consequence of the application of the laws and the Rules to the facts raised and the decided cases cited both in the claimants’ counter affidavit and written Address respectively.
The learned counsel for the 1st and 2nd Respondents argued per contra citing order 11 Rules 2 (3)(4) of the Kwara state High civil procedure Rules which provides that;- “3. Where the other party intends to oppose the appricatio4 he shall within 7 days of the service on him of such application,
file his written address and may accompany it with a counter-affidavit”.
The provisions of this Rule is clear and unambiguous that it connotes that ordinarily it is the party who intends to oppose an application that shall file a written address which may be accompanied with a counter-affidavit. On the other hand, the Applicant is expected to serve the Respondent with a Reply Address on point of raw. However, the fact that the Rules make no provision for a situation where an un-opposing party may fire a counter- affidavit does not preclude a party who even though not opposing an application, is smeared with an allegation of conspiracy to instigate a party seeking to be joined in an action in order to frustrate the claim of the plaintiff, as the claimants/1st and 2nd Respondents has done in this case; from firing a Reply debunking such allegation.
If in the face of the depositions in paragraphs g, 14-16 of the Claimants, counter-Affidavit neither the Appellant nor the 3rd to 5th Respondents filed a Reply or Further Affidavit to the Counter-Affidavit of the claimants, the Appellant and 3rd – 5th Respondent shall have been deemed to have admitted the facts as contained in the counter-affidavit of the claimants which would not augur well for the case of the Appellant. See Asol (Nig.) Ltd. v Access Bank (Nig.) pre (2009) 70 NWLR (pt. 1149) 283 at 303-304 I had said earlier that although the Appellant mentioned from the onset that they acquired the land in dispute jointly with state Government, the depositions of the claimants/Respondents in paragraphs 8, 14-16 triggered off the depositions of the Appellant and 3rd to 5rh Respondents in their respective Further Affidavit, Reply to the counter-Affidavit and their written Addresses in support which the court below discountenanced.
It was also the result of that counter-Affidavit that warranted the Reply on Points of Law which the court equally discountenanced as not being provided for under order 11 Rules 3 and 4. As the learned counsel for the Appellant rightly submitted, the issues thrown-up by the discountenanced Reply Address and Further Affidavit as can be gleaned from page 31-37 of the Records, include:-
(a) Presumption of raw or a party’s counsel’s appearance in a proceeding (pages 31-32 lines 1-7 of the Records)
(b) The Legal consequence of the provision of section 196 of the Local Government Law of Kwara State Cap.92 of 1976 on the legal relationship between the Appellant and Ilorin Local Government, the (acquisitive. authority) by virtue of Exhibit A (see page 32 lines 8 – 30 of the Record).
(c) The legal relationship between the Emir of Ilorin and the Appellant by virtue of Section 4, Native Authorities, (establishment, appointment & Constitution) Notice cap.77 law or Northern Nigerian and Sections 76 and 78 of the Local Government Law if Kwara State, Cap.92, 1976.
(d) The appellant’s response to the application of the case of Okadere v. Adebara (1991) 6 SCNJ 254 cited and relied upon by the claimants (page 34 lines 25 – 37) and page 35 lines 1 -30 of the records.
(e) The Appellant’s respondents to the Claimants’ interpretation of order 33 Rule 3 of the Kwara State High Court (Civil Procedure) Rules 2005, and the appropriate application of the case of Ibrahim v. Adekunle (unreported) page 35 lines 31 – 37 and page 36 of the Records.
From the foregoing, the learned counsel for the 1st and 2nd respondents and indeed the court below can not and could not have seriously contended that the Appellant’s reply address was not on points of law, since all those legal issues were raised first in both the Claimants’ Counter-affidavit and their Counsel’s Address (page 22-28 of the Records). Although I agree with the submission of the learned counsel for the Appellant to some extent that the assessment by the Claimants/1st & 2nd Respondents and Ruling of the Court in this respect at page 55 of the Records that the Further and Better Affidavit to which a Written Address is attached and filed by the Counsel to the person seeking to be joined, and that the argument of Mr. Bamigboye that after the written address in support of motion all that the Applicant is entitled to, is a Reply on points of law and not to reargue this case; it is not right to some extent. Ordinarily where contentious issues are not raised in a Counter- Affidavit, there would have been no need for the filing of a Further and Better Affidavit.
In this case, the fresh and contentious issues of fact and law raised in paragraphs 8-16 necessitated the Further-Affidavit and Reply Address. Although I must concede that the Reply Address is bogus, it is never the less competent since it was a reply to issues arising from the Counter-Affidavit and the submissions of the of learned Counsel for the Claimants/Respondents.
Assuming that the Appellant and 3rd to 5th Respondents adopted wrong procedures in filing processes which were not provided for under the Rules (which is not the case), this alone should not have warranted the dismissal of the process without hearing and pronouncing on them on the very salient points of Law raised in the Reply Address. Even if the Reply to Counter- Affidavit and Address in support thereof filed by the 3rd-5th Respondents were to be discountenanced as emanating from a party that did not oppose the motion filed by the Appellant; the Appellant’s Address would have been heard and considered particularly on the Points of Law raised therein.
The learned Counsel had also from the foregoing conduct of the learned trial Judge further emphasized on the bias expressed by the trial Judge against the Appellant by the Court’s failure to provide any ratio decidendi for its decision as it is trite that there must be some basis on how the court
arrived at such decision which indication must be on the record. The case of NARUMIAL & sons Nig. Ltd. v. Niger Benue Trans, Coy. Ltd. (1983) 2 NSCC 147 at 158 and 160; was rightly cited in support of his argument that the mere expression by the court that: “I think he is right, is in the same league with a Judge’s decision that merely “I believed, without stating any reasons for such belief. see also Obodo v. Olomu (supra) at l24which is on a similar fact, and I cannot but agree more with the submission of learned counsel for the Appellant that the learned trial Judge having failed to countenance the Appellant’s Reply Address, deprived himself of the legal responsibility to provide ratio decidendi for its decision and thus came to a perverse decision which occasioned a miscarriage of justice and rendered his Ruling a nullity. Needless to add, that the Appellant was deprived of her right to fair hearing under Section 36(5) and this court shall interfere with Ruling of the trial court. see Odigwe v. JSC Delta State (2011) 10 NWLR pt. 1255 Pg. 294 at 283.
Finally, on issue Number 3: which poses the question as to whether a resort to a particular procedure not provided by the rule can defeat a party’s right to be heard on an issue affecting his interest; learned counsel has righty in my view, submitted that the Rules of court have given the court below enough latitude to exercise the discretionary powers vested on it to do justice regardless of any inadequacy on the part of the Appellant arising from a major lacuna in the Rules of Procedure and should not have denied the Appellant the opportunity to ventilate her position on any issue affecting her interest’ orders 1 Rule 2,56 Rule 11 upon which the Appellant hinged their submissions as conferring discretionary power on the court below to do substantial justice rather than adherence to form and technicalities provide as follows:
ORDER 1 RULE 2
“where a matter arises in respect which no provisions are made in the Rules, the court shall adopt such procedure as will in its  view do substantial justice between the parties concerned.”
ORDER 56 Rule 11
“where no provision is made by these Rules or by  any other enactment, the court shall adopt such procedure as will in its view do substantial justice between the parties concerned.”
Apart from the above Rules, order 4 Rule 1(1) also states that:
“where in beginning or purporting to begin any proceedings, or at any  stage in the course of or in connection with any proceedings, there has,  by reason of anything done or left undone, been a failure to comply with the requirements of  the these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
2. The court may, on the ground that there has been such a failure mentioned in sub-rule (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document judgment or order therein, or it may exercise its powers under these Rules to allow such amendments (If any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
The learned counsel for the 1st and 2nd Respondent relied on Chief Onwuka Kalu v. Chief Victorial I Odili (1992) 6 SCNJ 26, 96 and The Hon, Justice Kalu Anyah v. Ann Limited (1992) 7 SCNJ 47 57; to submit that there is no ground of appeal against the decision of the trial court to discountenance the two processes as incompetent, and the issue and argument raised on the decision is misconceived and incompetent.
In the alternative, he has also argued that the court below has no power to waive a fundamentally incompetent process in the guise of substantial justice or non adherence to technicality. He asserted that the filing of Motion, opposing the motion and Reply on points of Law are all governed by order 11 Rules 2(3) and (4) of the Kwara state High court (civil Procedure) Rules, 2005.
There is no doubt that the Rules of court are meant to be obeyed as they lubricate the wheels of judicial process. However, as Tobi J.S.C, aptly put it in Inakoju v. Adeleke (2007) 4 NWLR (pt10 423 at 633 paras, E-G (citing Family story at pg. 174 by Lord Denning) which for the purpose of this Appear I shall make bold to re-echo:-
“My root belief is that the proper role of a Judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid the rule or even to change it so as to do justice in the instant case before him. He need not wait for the legislature to intervence, because that can never be of any help in the instant case. I would emphasize, however, the word ‘legitimately’; the judge is himself subject to the law and must abide by it.”
The above dictum supports the provisions of the Rules above re- produced by the Appellant. I reiterate as I said earlier on Issue Number 2, that the court below ought to have countenanced the Reply to the counter Affidavit filed by the 3rd – 5th Respondents as well as the Further and Better Affidavit of the Appellant and their respective addresses in support not withstanding that there is no provision for such procedure under the Kwara state High court (civil procedure) Rules, 2005.
As the learned counsel for the Appellant has submitted rightly in my view proof of facts by way of Affidavit evidence is governed by sections 107- 120 of the Evidence Act, 2011. In particular, the provision of section 113 of the Act permits an Affidavit to be used not withstanding that it is defective in form according to the Act, if the court is satisfied that it has been sworn before a person duly authorized.
In the case at hand, the defect is an irregularity which orders 1 Rule 2, 4 Rule 1(1) and 56 Rule 11 of the Kwara state High court (civil procedure)
Rules, 2005 can cure with the leverage provided to the court by this Rules to exercise its judicial and judicious discretion to treat any failure to comply with the requirements of the Rules whether in respect of time, place, manner, form or content or in any other respect; as an irregularity.
Furthermore’ where as in this case, there are no provisions for the procedures adopted by the 3rd – 5th Respondents in filing a reply to the Claimants/Respondents Counter-Affidavit; and indeed assuming there are no provisions for Further and Better Affidavit and the Reply Address fired by the Appellant in the Kwara state High court (civil procedure) Rules, orders 1 Rule 2 and 56 Rule 11 ought to have been invoked to countenance the processes filed by the Appellant and 3rd-5th Respondents with a view to doing justice. substantial This is because as the learned counsel for the Appellant has rightly submitted relying on Aigbodahi v. Aifuwa (2006) 2 NSC 61 at 72;
“… the attitude of court has changed from doing technical justice to doing  substantial justice. This attitude envisage the possibility of hearing everyone on any complain so as to enthrone and sustain the rule of law. Parties are therefore encouraged to ventilate their grievances before the courts which are enjoined to do substantial justice in relation thereto without recourse to form or technicalities.” See also Abubakar v Yar’Adua (2009) 4 NWLR (Pt 1028) 467 at 511 paras. E-G; Pam v. Mohammed (2008) 16 NWLR (Pt.1112) 1 at 94 paras, C-F; Duke v. Akpabuyo L.G. (2005) 19 NWLR (pt.959) 130 at 142; U.T.C. (Nig.) Ltd. v. Pamotie (1989) 2  NWLR (pt.103) 244 at 296; Katto v. C.B.N. (1991) 12 SCNJ 1; and more particularly Olaniyan v. Oyewole (2008) All FWLR (pt399) 503 at 530; Sanni v. Agara (2010) 2 NWLR Pt.1178 Pg.371 at 393; Adamu v. Akukalia (supra) where this Honourable court, in line with the above cited supreme court authorities emphasized on the need for courts to do substantial justice in their application of the rules of procedure and not allow same to truncate, suffocate, stifle and constitute an inveterate encumbrance to the smooth administration of justice.
I am not oblivious of the authorities of Mr. Michael Agbekoni v. Alhaji Ibrahim A. Kareem (2008) All FWLR (pt 406) 1970, 1985; Minister of Petroleum and Mineral Resources v. Expo Shipping Line (Nig). Ltd. (2010) ALL FWLR (pt 530) 1296, 1247; Chief John Oyegun v. Chief Francis A. Nzeribe (2010) ALL FWLR (pt 516) 425, 440 and National Bank of Nigeria, Limited v. Guthrie (Nig) Ltd (1993) 4 SCNJ 1, 15; ably cited by the learned counsel for the claimants/1st and 2nd respondents on the position of the law that discretion is not an exercise of judicial whim but a judicial judgment based on facts, equity and guided by law; which decisions may have been decided on their peculiar facts but with due respect to f earned counsel, are not apposite to the facts and circumstances of this case.
On that score, I am tempted to agree with the learned counsel for the Appellant and indeed the 3rd- 5th Respondents on the authorities of Asol (Nig.) Ltd v. Access Bank (Nig) plc. (2009) 10 NWLR pt. 114g pg.283 at 303-304; Odigwe v. J.S.C Delta State (2011) 10 NWLR pt. 125 Pg. 254 at 283; Uzuda v. Ebigaa (2009) 15 NWLR pt. 1163 pg. 1 at 19; that the fundamental rights of the Appellant nay the 3d-5th Respondents to fair hearing as entrenched in section 36(1) of the constitution of the Federal Republic of Nigeria, 1999; particularly one of the twin pillars of natural justice id est, Audi Alteram Partem, was patently breached when the learned trial Judge barred and discountenanced the processes filed by the Appellant and 3rd -5th Respondents on the slender ground that the procedure adopted by the aforementioned parties were not as provided by the civil procedure Rules of the High court of Kwara State, 2005.
To round up this Judgment, it is necessary to recall the immortal words of Ademola, CJN in Isiyaku Mohammed v. Kano N.A. (1968) 1 ALL N.L.R. 42 quoted and adopted by Eso, JSC; in Paul I. Unongo v. Aper Aku & Ors. (1983) 11 S.C. 129 at 179; where in answering the question ‘what is fair hearing?’ the learned law Lords elucidated the concept inter alia:
“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing mist involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case” See also per Oputa and Aniagolu, JJSC in Ejike v. Nwankwoala & Ors. (1983) 12 S.C. 301 at 341-342; and the recent case of Ogli Oko Ltd. v. NACB (2008) 34 NSQR 1057; per Akintan, JSC; who citing with approval Ekpeto v. Wanagho (2004) 18 NWLR (pt.905) 394; Salu v. Egeibon (1994) 6 NWLR (pt348) 23; Ceekay Traders v. G.M. Co. Ltd. (1992) 2 NWLR (pt.222) 732; Isiyaku Mohammed v. Kano N.A. (supra) and UBA Ltd. v. Achoru (1990) 6 NWLR (pt 156) 254; stressed the fundamental nature of fair hearing to all procedure and proceedings and that like jurisdiction, the right to fair hearing is both fundamental and constitutional right donated to parties in dispute who must be afforded the opportunity to present their cases to the adjudicating authority without any hindrance from the beginning to the end. It connotes and perceives of the felt need of the court or tribunal to be fair, impartial and devoid of demonstration of any iota of bias against any of the parties. Above all, every party must be afforded equal opportunity of presenting his case.
In the instant case, these hallowed attributes of the rule of fair hearing were jettisoned when the learned trial Judge discountenanced the Appellant’s Further and Better Affidavit as well as the Reply Address on the ground that order 11 Rule 2(3) of the High court (civil Procedure) Rules, 2005 does not envisage Further and Better Affidavit or Reply to Counter-Affidavit as filed by the Appellant and 3rd-5th Respondent. Therefore going by the authority of Isiyaku Mohammed v Kano N.A. (supra) a reasonable person present in court and who watched the proceeding of that day would leave the court with the indelible impression that the Judge was biased against the Appellant. In such circumstance, the Ruling of His Lordship cannot stand and ought to be set aside.
Issue Number 3 is also resolved in favour of the Appellant. In conclusion this appeal succeeds and is hereby allowed. The Ruling of Honourable Justice M. O. Adewara of the High court of Justice Kwara state, Ilorin Division delivered on the 5th of May, 2011 is hereby set aside. It is ordered that the Appellant shall forthwith be and is hereby joined as a Co-Defendant in the lower Court to enable the case be effectually and completely determined. I make no order as to costs.

ITA G. MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, I.I. Agube JCA in the lead judgment, which I had the privilege of reading the draft. I, too, allow the appeal and abide by the consequential orders in the lead judgment.

OBANDE OGBUINYA, J.C.A.: I have had the privilege of reading, in draft, the alluring leading judgment delivered by my learned brother, Ignatius Igwe Agube, JCA. My noble Lord has, ably, dissected all the facets of the issues in the appeal and it is pointless to duplicate his well-invested efforts. I agree with his reasons and conclusions in the appeal. I, too, dismiss the first and second respondents’ preliminary objection and allow the appellant’s appeal. I abide by the consequential orders made in the leading judgment.

Appearances

Abdul Ganiyu Ajia Esg. Holding the Brief of Goke Akande Esq.For Appellant

AND

G.A. Atofarati Esq. J.S. Mohammed and S.O. Gbadeyan Esq. for the 3rd-5th Respondents.For Respondent