MALLAM ISIAKA AJAO MAGAJI & ANOR v. SAAD OJUEKUN (2019)

MALLAM ISIAKA AJAO MAGAJI & ANOR v. SAAD OJUEKUN

(2019)LCN/12978(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/IL/7/2017

RATIO

JOINDER: WHAT IS THE PURPOSE OF A JOINDER

The primary purpose of joinder of other persons to a proceeding before the Court is to prevent multiplicity of action and to avoid delay. Furthermore, the real test for the Court to consider in order to determine the necessity of joining a person to the suit is whether the party sought to be joined will be prejudiced if an order joining him is not made. See Green Vs. Green (1987) 3 NWLR (pt. 61) 480, Ige Vs. Farinde (supra), Nzeribe Vs. Nzeribe (2013) LPELR-21930 (CA), Akinyede Vs. Akinyede (2017) LPELR- 43619 (CA) and Odeleye Vs. Adepegba (2001) 5 NWLR (pt. 706) 330 among others.PER BALKISU BELLO ALIYU, J.C.A.

APPEAL: INTERESTED PARTIES: WHAT AN INTERESTED PARTY WHO SEEKS TO APPEAL MUST PROVIDE
All that is required of an interested party who seeks to appeal a decision in which he has interest is to seek leave of Court to appeal and if he is out of time he could apply for extension of time to regularize his appeal. See Assams Vs. Ararume & Ors. (2015) LPELR-40828 (SC) and Ede Vs. Nwidenyi & Ors. (1988) LPELR-1003 (SC).PER BALKISU BELLO ALIYU, J.C.A.

COMMITTAL PROCEEDINGS: NATURE

There is no doubt that committal proceedings, which affect the liberty of individuals are criminal in nature, which is why the law expects strict compliance with the procedure laid down, especially as to service of notice through forms 48 and 49 to the alleged contemnor. See Chukwu & Ors. Vs. Chukwu & Ors. (2016) LPELR-40553 (CA). PER BALKISU BELLO ALIYU, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria

Between

1. MALLAM ISIAKA AJAO MAGAJI
2. MALLAM MOHAMMED AWWAL AYINLA MAGAJI Appellant(s)

AND

SAAD OJUEKUN Respondent(s)

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Kwara State sitting at Ilorin, delivered on 18th December, 2015 by Hon. Justice M. A. Folayan in suit No: KWS/44M/2012, wherein the lower Court dismissed the Appellants application seeking to be joined in the contempt proceedings initiated by the Respondent against some privies of the judgment debtors family, having refused to comply with the lower Courts order to return possession of part of the land, adjudged to belong to the Respondents family. The ground of the application before the lower Court was that, part of the land occupied by the alleged contemnors was their (Appellants) land before they sold it to the alleged contemnors. In his ruling refusing the application, the learned trial Judge held at page 247 of the record of appeal thus:
As far as the judgment creditor is concerned, he has no complaint against the Applicants. I also hold that only those who are served with the enforcement order, and have refused to comply can be held answerable in disobedience of the

Courts order. The matter before this Court in the committal application is not to re-hear the case already decided and which appeal had gone up to Supreme Court. I therefore do not see how these Applicants seeking to be joined as parties in the committal proceedings can become necessary parties. This application for joinder is based on the wrong impression that this Court is called upon in the application to re-hear or decide who owns the land, what is before the Court is a complaint of disobedience to the order of Court served on the Respondents in the committal application. The Respondents in the committal application are to show cause why they should not be committed to prison for failure to comply with the order of Court served on them. These Applicants have not said they were served with the order of Court, so they cannot be brought in for disobedience of the order which was not served on them for compliance. I therefore do not consider the Applicants as necessary parties who can be Joined in this committal proceeding. I hold that this application is misconceived and it is hereby refused.?

Aggrieved by the decision of the lower Court, the Appellants filed a motion on notice before this Court on the 23rd May 2016 by which they prayed for the so-called trinity prayers, to appeal against the ruling of the trial Court. On the 27th September, 2016, this Court granted the Appellants extension of time and leave to file their notice of appeal within seven days from that date. Pursuant to the said order, the Appellants filed their notice of appeal on the 3rd September 2016, relying on five grounds of appeal stated therein.

The record of appeal was compiled and transmitted to this Court on the 12th January 2017, but deemed duly transmitted on the 22nd May 2017. An additional record of appeal was further transmitted on the 9th March 2017 but deemed duly transmitted on the 22nd May 2017.

The Appellants brief of argument settled by Saka Rasak Ayodeji Esq., and filed on 20th June 2017, distilled and submitted the following two issues for determination from the grounds of appeal:
1. Whether in the committal proceedings, the Appellants whose interest would be affected by the proceedings and its attendance effect cannot be allowed to join as co-contemnor in order to arrive at the justice

of the case or the rights to be joined in the proceedings which affects their entire land has been extinguished by sale of part or portion of their land.
2. Whether or not the trial Court had not delved into substantive matters to be decided at hearing of the application for committal proceedings at interlocutory stage when it held that the issue of ownership had been decided by the Courts between the Appellants and the Respondents? family when none of the Applicants? families was a party, witness or privies of parties to the proceedings the Respondents want to enforce.

On the other hand, the Respondent?s brief of argument settled by S. K. Akande Esq., was filed on 5th February 2019 but deemed properly filed and served on the 21st February 2019, therein the Respondent raised a preliminary objection to the competence of this appeal, which was argued from paragraphs 2.05 to 3:08 of the Respondent?s brief of argument. However in the event that the Respondents preliminary objection fails, he crafted and submitted the following two issues for the determination of this appeal:

1. Whether the exercise of discretionary power of Court to join a person as a party to a case is exercisable under committal proceedings.
2. Whether on the consideration of the material evidence before the lower Court, its decision amounted to delving into the substantive matter in the pending application before it.

In response to the preliminary objection of the Respondent, the Appellants? learned counsel filed a reply brief on the 28th February 2019 in which paragraphs 1.01 to 1.08 constitute the Appellants? reply to the preliminary objection raised by the Respondent. It also contained the Appellants? reply on points of law to the argument of the Respondent in respect of the appeal.

On the 4th March, 2019 when the appeal came up for hearing counsel for the Respondent Goke Akande Esq., adopted the Respondents argument contained in the Respondent?s brief in support of the preliminary objection and urged the Court to strike out this appeal. The Appellants? learned counsel Saka Rasak Ayodeji Esq., leading Abdurasheed Isiaka Esq., and Abdurrahman Ibrahim Esq. adopted the Appellant?s reply brief as answer to the Respondents preliminary

objection. With regards to the appeal itself, both counsel adopted their respective briefs of arguments. The Appellants learned counsel urged the Court to allow the appeal while the Respondent?s learned counsel prayed the Court to dismiss the appeal.

ARGUMENT ON THE PRELIMINARY OBJECTION
The Respondents objection to the competence of this appeal is predicated on the ground stated in paragraph 2.05 of his brief of argument, that is, the Appellants filed an incompetent notice of appeal (dated 30/9/16) on 4th October 2016. It was the contention of the learned counsel that the Appellants notice of appeal contravenes the provisions of Section 240 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as ?the Constitution?) and Section 14(1) and (2) of the Court of Appeal Act, because the notice of appeal ascribed the decision appealed against as ?the judgment of Hon. Justice M. A. Folayan without more, thus giving the impression that the decision appealed against was the personal decision of the presiding Judge of the lower Court. It was further argued

that by the above stated provisions of the Constitution and the Court of Appeal Act, this Court can only determine appeals from the decisions of the High Court of a State among others, as such, Hon. Justice M. A. Folayan does not have judgment/ruling of his own, rather it is the High Court of Kwara State, in a suit with specified suit number under which the learned Judge of the lower Court made the decision that is the subject of this appeal. It was thus submitted that this Court cannot expand its jurisdiction to determine this appeal which has contravened the provisions of Section 240 of the constitution and Section 14(1) and (2) of the Court of Appeal Act.
It was further argued by the learned Respondent?s counsel that the non-compliance of the Appellants? notice of appeal with the said provisions of the Constitution and the Court of Appeal Act, is a substantial irregularity that renders the notice of appeal invalid, as such, it cannot initiate a valid appeal before this Court. Counsel referred to and relied on this Court?s decisions delivered on 18/05/2016 in Appeal No: CA/IL/M. 83/2015-MALLAM ISIAKA A. MAGAJI VS. SAAD OJUEKUN and

Appeal No: CA/IL/85/2017- ALFA LANRE HAMANDA & ORS. VS. SAAD OJUEKUN, where this Court held that the non-compliance with the provisions of Section 240 of the Constitution made the two appeals incompetent and both were struck out.

It was submitted that a failure to comply with any prescription of the law in the commencement of an action is fatal to the proceedings. It was submitted that in this appeal the Appellants failed to comply with the order of this Court granted in their favour on 27/9/16 by failing to ?file their notice of appeal against the ruling in suit No: KWS/44M/2012 delivered on 18/12/14? that was stated in that Court?s order contained at page 263 of the record of appeal. The Court was urged not to treat the Appellants? non-compliance with the constitutional provision of Section 240 as a mere irregularity that is curable by the provisions of Order 7 Rule 2(1) of Court of Appeal Rules 2016; because rules of court can neither vest nor aid to vest jurisdiction on the court where a statute provides otherwise. See Onuorah Vs. Kaduna (2005) 2 NSCQR 130 t 140 and Duke Vs. Akpabuyo Local Govt. (2005) 24 NSCQR 401 at

411. Learned Counsel also referred to the decisions in Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341 to submit that the cardinal principle of initiating proceedings before the Court is the fulfillment of any condition precedent to the activation of the Courts jurisdictional competence to determine the action. We were also referred to the cases of Tiza V. Begha (2005) 22 NSCQR (pt. 2) 42 and African Newspapers Vs. Nigeria (1985) 2 NWLR (pt. 6) 137 at 141 in support of the arguments and submissions of counsel, and in urging the Court to dismiss this appeal being an abuse of Court?s process. It was the view of the learned counsel that this appeal constitutes an abuse of this Courts process because it was filed in breach of the laws cited and also several other similar incompetent efforts on the same appeals were made by the Appellants and were refused by this Court on ground of legal inadequacies. It is for these reasons that the learned Counsel for the Respondent prayed the Court to strike out the notice of appeal and to dismiss the appeal at this preliminary stage.

As stated earlier, the Appellants reply to the preliminary

objection raised by the Respondent is contained in their Reply brief filed on 28th February 2019, paragraphs 1:01 to 1:08 therein, it was submitted that the provisions of Section 240 of the Constitution do not specify what a competent notice of appeal should contain; instead, it is Order 7 Rule 2(1) of the Court of Appeal Rules 2016, which made that provisions. It was argued that the Appellants? notice of appeal has substantially complied with the provisions of Order 7 Rule 2(1) of the Rules because the decision appealed against was stated to be that of ?the trial Court? and that it is not what is contained in the first paragraph of the notice of appeal that constitutes the notice of appeal but the entire document filed as shown at pages 264 to 269 of the record of appeal. In particular, the learned counsel drew our attention to the use of the opening phrase in each ground of appeal being that ?The trial Court erred in law which indicated that the decision appealed against is that of the Court and not that of the trial judge.

With regards to the decision of this Court in the sister appeal to this one with appeal No:

CA/IL/85/2017- Alfa Lanre Hamanda & Ors. Vs. Saad Ojuekun, delivered on 5th July, 2018, learned counsel submitted that this Court having held that the Appellants? mention in their notice of appeal that decision appealed against was that of Hon. Justice M. A. Folayan in the notice of appeal did not render the notice of appeal incompetent.

It was further argued by the learned Appellants? counsel that the provisions of Section 240 of the Constitution only states the jurisdiction of this Court to hear appeals from the High Court; while Section 14 of the Court of Appeal Act is in respect of appeal against the interlocutory decisions of the High Courts to the Court, but it is Order 7 Rule 2(1), (3), and (4) of Rules of this Court that determine the content of the notice of appeal and this was the decision of this Court in the sister appeal No: CA/IL/85/2017 (supra). The learned Counsel urged us to dismiss the Appellants preliminary objection.

DETERMINATION OF THE PRELIMINARY OBJECTION:
By his preliminary of objection, the Respondent is challenging the validity of the notice of appeal filed by the Appellant, and there is no doubt

that a valid notice of appeal is a condition precedent to the exercise of the jurisdiction of this Court to determine an appeal. See Madokolu Vs. Nkemdilim (supra) and Ewii & Anor. Vs. PDP & Ors. (2010) LPELR-4131-CA, among others. The objection is predicated on Sections 240 of the Constitution and Section 14(1) and (2) of the Court of Appeal Act. For guidance and clarity, the Sections are reproduced below, starting with Section 240 of the Constitution, as amended by the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010;
?Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Customary Court of appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from the decisions of a Court-martial or other Tribunals as may be prescribed by an Act of the National Assembly.?
While Section 14(1) of the Court of Appeal Act provides

as follows:
Where in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, (with the) leave of that Court or the Court of Appeal lie to the Court of appeal; but no appeal shall lie from any order made ex-parte, or by consent of the parties, or relating only to costs.?
It is clear that neither of the above provisions has provisions for how appeals from the State High Courts are to be filed before this Court. As rightly pointed out by the Appellants? learned counsel, it is the Court of Appeal Rules 2016 that makes the provisions for the procedure of filing appeals in Orders 7 to 10 thereof. The contents of a notice of appeal was specifically provided for in Rules 2(1) to (4) of the Rules, and they include grounds of appeal, the decision appealed against in part or wholly, the nature of the reliefs sought and so on.
Incidentally, the Respondent who was represented by the same counsel, raised the same objection relying on the same grounds before this Court in appeal No:

CA/IL/85/2017- ALFA LANRE HAMANDA & 4 ORS VS. SAAD OJUEKUN. In the judgment of this Court delivered on the 5th July 2018, this Court held at page 18 thus:
On the 1st leg of Respondent?s preliminary objection, I agree with the learned Counsel for the Appellant that the Notice of Appeal was in substantial compliance with the Provisions of Order 7 Rule 2(1) of the Court of Appeal Rules 2016. If there was any irregularity, it is clearly not fundamental as to vitiate the Notice of Appeal.
The learned counsel for the Respondent who appeared in the appeal and argued the Respondent?s objection are the same counsel in this appeal. There was no attempt made by the counsel to distinguish this objection with the one raised in the above cited case upon which this Court had already taken a decision. Thus, I see no reason to depart from that decision of this Court in this suit especially as the subject matter is the same in this appeal as in the appeal decided in the appeal No: CA/IL/85/2017. On that basis I am of the firm view that the preliminary objection of the Respondent is a mere cheap and unnecessary resort to technicalities.

It is now firmly settled that the era of technicalities has long gone. SeeAPGA Vs. Oye & Ors. (2018) LPELR-45196 (SC).
It was misleading on the part of the learned counsel to the Respondent to misrepresent the decision of this Court in the appeal No: CA/IL/85/2017, where learned counsel argued at paragraph 3:02 that the appeal was struck out on the ground of non compliance with Section 240 of the Constitution which is clearly incorrect as shown in the above quotation of the ratio decidendi in that appeal. The preliminary objection of the Respondents is dismissed for lack of merit.

ARGUMENTS ON THE MAIN APPEAL:
The Appellants’ issue one is whether the Appellants, whose interest would be affected by the committal proceeding and its attendant effect, cannot be allowed to be joined as co-contemnor in order to arrive at the justice of the case. The learned Appellants? counsel submitted that the nature of the proceedings before the Court being contempt proceedings would not prevent the joinder of another party even as contemnor, if the joinder of the person will lead to the justice of the case. That the general principle relating to the

joinder of proceedings requires that the person to be joined in the proceeding must have sufficient interest which is likely to be affected by the proceeding if not joined. It was the submissions of the learned Appellants? counsel that any party that will bear the consequences of the decision made in a given proceeding would be held to have sufficient interest, whose joinder is thus necessary. Also further argued that where the party seeking to join the lower Court?s proceedings will be bound by the ultimate result of the action will be joined to such proceedings. The learned counsel argued that the reason why the Appellants applied to be joined in the contempt proceedings before the lower Court as stated in paragraph 5:10 of the Appellants? brief was that ?The Appellants being the owners of Alalubosa and Asunnara villages but were not made parties to the committal proceedings as they were not made parties to the proceedings in judgment subject of enforcement, applied to join having noticed that their interest will be affected by the result of the action if they failed to join the suit.? It was further argued that it is necessary

to join the family as party to an action involving family land, not withstanding the allotments of the land to its members, family land remains family land and it is necessary to sue the proper party. As such, the fact that the Appellants had sold part of the land to the Respondents that were sued in the committal proceedings, will not affect the right of the Appellants to include such portions disposed off in the claim before the Court in order to establish their acts of ownership over the entire portion of the land belonging to the Appellants.

It was further argued that, the fact that contempt proceeding is governed by a special procedure, does not preclude an application for joinder in order to arrive at the justice of the case, and this Court was urged to so hold. The learned counsel relied on several authorities including the decisions in Olawoye Vs. Jimoh (2013) 3-4 S.C. (pt. IV) 59 at 87-88, A. G. Fed. Vs. A. G. Abia State (2002) 16 WRN 1 at 89 to 90 and Jinadu Vs. Aro (2009) 4 MJSC (pt. 111) 1 among others in support of the argument and submissions on issue one.

Appellants issue two is whether or not the trial Court in its

interlocutory ruling delved into the substantive matter to be decided at the hearing in the contempt proceedings, when it held that the issue of the ownership had been decided between the Appellants and the respondents? family, when none of the Appellants? family was a party, witness or privy to the proceedings that the Respondent wants to enforce. The learned Appellants? counsel submitted on this issue that the lower Court was in error and misdirected itself when it delved into the matter of the substantive application, having held that the Courts, up to Supreme Court, had settled the matter between the Respondent and Appellants. It was contended that this decision of the lower Court has the resultant effect that the Appellants? family were parties in the matter settled in the judgments of the Courts, up to the Supreme Court, which was not the case. Relying on the cases of Elufioye Vs. Halilu (1993) 6 NWLR (pt. 30) 570, Orji Vs. Zaria (1992) 1 NWLR (pt. 216)124 and Globe Fishing Industries Vs. Coker (1990) 7 NWLR (pt. 162) 265, the learned Appellants? counsel submitted that a Judge cannot decide the substantive suit at an

interlocutory stage, which by implication, will disqualify himself from the trial of the substantive matter.

In concluding his argument, the learned counsel for the Appellant urged upon this Court to hold that being a committal proceeding before the lower Court, does not prevent a joinder of the parties as co-contemnors. The Court was urged to allow this appeal and to order the joinder of the Appellants to the committal proceeding, and to be heard by another Judge of the lower Court.

The Respondents issue one is whether the exercise of discretionary power of the Court to join a person as a party to a case is exercisable under committal proceedings. In arguing this issue, the learned Respondent?s counsel submitted on the authority of the decisions in Foreign Finance Corp. Vs. Lagos State Dev. & Property Corp. (1991) SCNJ 5 at 71 and CBN Vs. Akporanbang Community Bank Ltd (2004) ALL FWLR (pt. 319) 927, that it is settled law that a party against whom there is no complaint or claim in a suit is not a necessary party to be joined to that suit. He referred to the processes which the Respondent filed before the lower Court, contained at

pages 1-9 and 87 to 95 of the record of appeal, to submit that nowhere in those documents did the Respondent make any complaint against the Appellants as having breached the orders of the lower Court which was the subject of the committal proceedings, that would warrant their joinder. It was further submitted that the Appellants are mere meddlesome interlopers who have no business with the suit before the lower Court, which main complaint is disobedience of the order made by the Court on 18/5/2012. See Ige vs. Farinde (1994) 7-8 SCNJ 384, where the Apex Court defined who a necessary party to a proceeding should be.

The learned Respondent?s counsel further argued still on this issue, that there is no concept of vicarious liability under committal proceeding, which is quasi criminal in nature. As such the sanction only bounds the offender and no other. The case that was before the lower Court was strictly between the parties, and it can effectually and completely be determined without the Appellants and they are therefore unnecessary parties to the proceedings. See Abbas Vs. Solomon (2001) 7 SCNQR 45 at 60-61 and Mattaradona Vs. Ahu (1995) 8 NWLR

(pt. 412) 225 at 235, Union Beverages Ltd Vs. Pepsicola Int. Ltd (1994) 2 SCNJ 157 at 17 and Obada Vs. Military Administrator of Kwara State (1990) 6 NWLR (pt. 157) 482 at 494, among others.

It was further submitted that the applicable laws to contempt proceedings before the lower Court are Section 72 of the Sheriffs and Civil Process Act, and Order 9 Rule 13 of the Judgment Enforcement Procedure Rules. In order to commence such proceedings, a notice in forms 48 and 49 must be issued against the contemnors and served on them who had allegedly disobeyed the order of the Court, therefore the Appellants, against whom no such service of forms 48 and 49 was made, cannot be joined as parties because doing so would be in disregard of the procedure provided by the applicable laws. It was thus argued that the lower Court was therefore right to have refused the application of the Appellants for joinder and we were urged upon to so hold and resolve the Respondent?s issue one against the Appellants.
?
The Respondent?s issue two is whether on the consideration of the material evidence before the lower Court, its decision amounted to delving into the

substantive matter in the pending application before it. In arguing this issue, Mr. Akande referred to the affidavits of the Respondent filed before the lower Court (contained at pages 10-83 of the record of appeal), which showed that his complaint before the lower Court was against the contemnors as privies of the judgment debtor family. Hence the issue of title was not before the lower Court to re-litigate, and therefore the lower Court cannot expand its jurisdiction having regard to the quasi-criminal nature of contempt proceeding before it, to commit the Appellants for contempt as they sought through the application for joinder. The learned Counsel further argued that under a committal proceeding, the emphasis is on the process of enforcement rather than on the alleged contemnors or their privies or parties to the judgment being enforced. It was argued further that the learned trial Judge did not make any pronouncement on whether or not the Appellants had breached the process of enforcement to warrant the notion that he delved into the substantive application for committal to prison against the alleged contemnors before the trial court. It was contended

that the Appellant only seeks to make substance out of the inconsequential slip of the learned trial Judge at pages 246 to 247 of the record of appeal, which, according to the learned counsel was merely a minor slip. The Court is required to examine such ?slip?, in order to determine whether the lower Court would have reached the same conclusion based on the material evidence available to it. It was re-iterated by the learned Respondent?s counsel that in view of the Section 72 of the Sheriffs and Civil Process Act, and Order 9 Rules 13 of the Judgment (Enforcement) Procedure Rules, the learned trial Judge, not withstanding the slip at page 246, would have still come to the same conclusion on the ground of law by refusing the Appellants? application for joinder. The learned counsel further argued that an opinion held by a Court in an interlocutory application cannot constitute estoppels, and as such the Court can depart from such an opinion held on a previous point of law in interlocutory ruling when writing final judgment. SeeHaruna Vs. A. G. Federation (2012) 24 NSCQR 1418 at 1434 and Balogun V. Akanji (1992) 2 NWLR (pt. 225) 539 at

546. The Court was urged to resolve this issue in favour of the Respondent and to dismiss this appeal.

In the Appellants? reply brief, it was submitted, in reply to the Respondent?s issue one that though there was no complaint directly against the Appellants in the contempt proceedings before the lower Court; but the affidavits of the Appellants in support of their application to be joined as the parties to the contempt proceedings show that the Respondent wanted to deceptively sue those who had no interest on the land and the judgment would confer another right on the land to the Respondent if left unchallenged.
?
It was further argued that the (Court?s?) criminal or quasi-criminal jurisdiction is not repugnant so as to disallow a land owner from intervening in a proceeding where 3rd party is claiming interest against the occupiers on the pre that it was only the complain of the complainant that will be entertained. The learned Appellants? counsel further submitted that the provisions of Section 72 of the Sheriffs and Civil Process Act did not relate to, nor forbids the joinder of necessary parties to the lower

Court?s committal proceedings and therefore the case of Obada Vs. Military Administrator of Kwara State (supra) cited by the Respondent in his brief is not applicable to this case. It was further submitted that even in real criminal matters, it is only the complainants who cannot be joined but that a co-accused can be joined to the criminal proceedings. For this contention, learned counsel relied on the decision in IGP Vs. Andrew (2014) ALL FWLR (pt. 729) 1194 at 1204 to 12 05, where it was held that ?The only way an entity can be ordered to be joined in a criminal case is when such entity joined the accused in committing the same offence and for the Court?s convenience, the two could be tried together.? The learned counsel urged us to resolve issue one in favour of the Appellants.
?
In the Appellant?s reply to arguments of the Respondent on issue two, it was contended by the learned Appellants? counsel that the learned trial Judge had the content of the counter affidavit of the Appellants against the committal proceedings in mind, while treating the application of joinder, and therefore His Lordship?s holding that

the ownership of the land has been settled by Courts was not a mere slip but an act of dealing with the substantive suit at the interlocutory stage. This Court was urged upon to so hold and to allow this appeal.

DETERMINATION OF THE APPEAL
I have given due consideration to the issues formulated and submitted by the Appellants and the Respondent in their respective briefs of argument. The Appellants issue one distilled from grounds 1, 2 and 3 of the grounds of appeal, raised the question, whether the Appellants ought to be joined to the proceedings before the lower Court. This issue is the same in con with the Respondent?s issue one, which also raised the same question, whether the Appellants ought to be joined to the contempt proceedings. Similarly, the Appellants? issue two relating to grounds 3, 4 and 5 of the grounds of appeal, by which the Appellants complained that the learned trial Judge had delved into the substantive matter while dealing with their interlocutory application for joinder to the committal proceedings. The Respondent?s issue two raised the same question for determination as well. In effect the Respondent is

in agreement with the issues for determination formulated by the Appellants. I am also satisfied that the issues so raised adequately addressed the complaint of the Appellants in their grounds of appeal and therefore, I will determine this appeal upon the Appellants? issues.

ISSUE ONE
This issue raised the question whether the Appellants whose interest would be affected by the committal proceedings and its attendant effect should not be allowed to join the contempt proceedings as co-contemnors, or has the Appellant?s right to be joined to the committal proceedings been extinguished by sale of the land as was held by the lower Court.
?
Generally speaking, the joinder of any person to the proceeding before a Court is governed by the Rules of the Court before which the proceedings are commenced. It is a discretionary power that can be exercised even suo moto by the Court, in order to join any person that it considers necessary for the determination of the subject matter in controversy effectively and totally. The primary purpose of joinder of other persons to a proceeding before the Court is to prevent multiplicity of action and to avoid

delay. Furthermore, the real test for the Court to consider in order to determine the necessity of joining a person to the suit is whether the party sought to be joined will be prejudiced if an order joining him is not made. See Green Vs. Green (1987) 3 NWLR (pt. 61) 480, Ige Vs. Farinde (supra), Nzeribe Vs. Nzeribe (2013) LPELR-21930 (CA), Akinyede Vs. Akinyede (2017) LPELR- 43619 (CA) and Odeleye Vs. Adepegba (2001) 5 NWLR (pt. 706) 330 among others.
The above position of the law regarding joinder of parties is recognized by Order 14 Rule 16 (3) of the Kwara State High Court (Civil Procedure) Rules 2005, which provides that:
?A judge may order that the names of any party who ought to have been joined or whose presence before the Court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings be added.?
However the proceedings before the lower Court that gave rise to this appeal are no ordinary civil proceeding, but contempt proceeding for disobedience of the order of the lower Court made on 18th June 2012. By that order, the lower Court ordered the judgment debtors/respondents

to quit the land adjudged to belong to the judgment creditor, who is the Respondent in this appeal. The lower Court made the order pursuant to the motion on notice the Respondent filed before it on 5th March 2014, two years after the judgment debtor/respondents were ordered to quit the land and remove all illegal structure thereon. See pages 87 to 96 of the record of appeal.
It was after the service of the forms 48 and 49 on the respondents/judgment debtors, that the present Appellants filed a motion before the lower Court seeking to be joined as 9th and 10th Respondents, even though they were not judgment debtors in the judgment that the Respondent herein sought to enforce. The Appellant?s ground for applying to be joined was that:
?The land upon which the judgment creditor/respondent applied for the committal proceeding against all other respondents falls within Alalubosa and Asunnara Villages as the 3rd to 8th respondents only purchased land from the applicants? families through the applicants while the 2nd respondent is the biological son of the 1st applicant in this application.? (Underlying supplied for emphasis).<br< p=””

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In support of the above ground, the Appellants in their respective affidavits have stated that they were privies to the judgment debtors in the judgment that the Respondent applied to enforce at the lower Court. See their respective affidavits at pages 141 to 144 of the record of appeal. The facts deposed in their affidavits contradict their claim stated at page 1 paragraph 1.3 of the Appellant?s brief wherein the learned counsel argued that ?neither the Appellants nor any members of their families was a party or witness to any of the parties to the proceeding and were not related in any way to any of the Appellants? families, privies of parties to the proceedings.? Contrary to this submissions, the 1st Appellant (Mallam Isiaka Ajao Magaji) had sworn in paragraph 3 of his affidavit in support of the motion for joinder, contained at page 141 to 142 of the record of appeal that:
?The 1st Respondent is my biological son from the same Alalubosa family, while the 3rd, 6th and 7th respondents are privies of our Alalubosa family who had been on the land through my family at all time relevant to the proceeding leading to the

judgment sought to be enforced.?
Similarly the 2nd Appellant (Mohammed Awwal Ayinda Magaji) also stated in paragraph 2 of his affidavit contained at pages 143 to144 of the record of appeal that:
?The 2nd, 4th and 5th respondents are privies of our Asunnara family who had been on the land through my family at all time relevant to the proceeding leading to the judgment sought to be enforced.?
?Clearly, by their own admission at the lower Court, the Appellants? privies and family members were the judgment debtors in the judgment the Respondent applied to enforce. But they stood by throughout the proceedings in the various Courts up to the Supreme Court and watched their son and privies fight the battles all the way, without raising a finger or applying to be joined as interested parties, which they could have done either before the lower Court or even to file an appeal as interested parties before this Court or the Supreme Court, regardless of the fact that they were not parties on record in the proceedings at the lower Court. All that is required of an interested party who seeks to appeal a decision in which he has interest

is to seek leave of Court to appeal and if he is out of time he could apply for extension of time to regularize his appeal. See Assams Vs. Ararume & Ors. (2015) LPELR-40828 (SC) and Ede Vs. Nwidenyi & Ors. (1988) LPELR-1003 (SC). But the Appellants did not do that, which led the lower Court to the conclusion that after they sold the land, they were clearly not interested in the proceedings that were going on. It was in this basis that the learned trial Judge, after considering the affidavit evidence concluded at page 246 thus:
?I therefore agree with the learned counsel for Respondent (Ojuekun Saad) that having sold the land, as attested to by Exhibits A and B, the interests of the applicants have been extinguished The enforcement order of the judgment for possession of the adjudged land should be between the judgment creditor and the alleged illegal occupants of the land.?
?I have not found any fault with the conclusion reached by the lower Court to warrant my interference. The lower Court has exercised its discretion judiciously based upon the evidence that was placed before it. I also agreed with the learned trial Judge

that having disposed of the land and having stood by all the years passed while the case was fought and lost by their privies, the Appellants have admitted by conduct that the adjudged land belonged to the Respondent. The law is settled that parties to the proceedings are not only those named in the record of proceedings. See Annah & Ors. Vs. Uso & Ors. (2010) LPELR-3777, where this Court held:
“In this case therefore, the appellants can not be said to have been affected by an order made in a case in which they were not parties. As privies of their named vendors the appellants were parties to this case. As people who stood by and watched their vendors defend their interest in the case the appellants were also parties to this suit. They were therefore adequately and fairly heard in this matter through their vendors before the Court nullified their purchases of OBONG Uso Ishie Family Land.” Per MIKA’ILU, J.C.A
More importantly, the Appellants have to show how the outcome of the committal proceedings at the lower Court will affect them and they have not. The learned trial Judge was on sound footing to refuse the Appellants? application at

this late stage.
I must state here that it is strange bordering on the bizarre that the Appellants who were not sued for any contempt or disobedience of the lower Court?s order would bring themselves to the Court and apply to be committed and possibly to be punished for contempt allegedly committed by the other persons. I agree with the Respondent?s submissions that there is no vicarious liability in criminal or quasi-criminal proceedings in the Nigerian criminal jurisprudence. There is no doubt that committal proceedings, which affect the liberty of individuals are criminal in nature, which is why the law expects strict compliance with the procedure laid down, especially as to service of notice through forms 48 and 49 to the alleged contemnor. See Chukwu & Ors. Vs. Chukwu & Ors. (2016) LPELR-40553 (CA). Therefore, I agree with the Respondent?s counsel that to join the Appellants to the committal proceedings would be in contravention of the laid down procedures in such cases.
?Upon all I have stated, I am of the view that the Appellants having failed to show how they could be affected by any outcome of the contempt

proceedings before the lower Court, the lower Court was right to refuse their application for joinder. Consequently the answer to the Appellants? issue one has to be answered in the affirmative and I therefore resolve same against the Appellants.

ISSUE TWO
The Appellants? issue two raised the question whether the lower Court had not delved in the substantive matters while deciding the interlocutory application for joinder to the committal proceeding; when it held that the issue of ownership of the land has been settled by the Courts between the Appellants and the Respondent?s families when none of the Appellants? family was a party to the proceedings resulting in the judgment that the Respondent wants to enforce through the committal proceedings. This issue relates to the complaint of the Appellants against the ruling of the lower Court wherein the learned trial Judge held at page 246 of the record of appeal that; ?The matter between the Respondent herein and the Applicants had already been settled at the Upper Area Court, High Court, Court of Appeal and the Supreme Court which struck out the Applicant?s appeal for

failure to prosecute same.
The Appellants argued that the learned trial Judge was referring to the counter affidavit of Respondent contained at page 121 of the record of appeal. The learned Respondent?s counsel on the other hand was of the view that the above finding was an inconsequential slip. I am of the view that in view of the fact that there was a subsisting judgment in respect of the land which the Respondent was trying to enforce, the above findings of the learned trial Judge from the processes in the record of Court was in order, and it did not amount to delving into the substantive suit at the interlocutory stage.

Moreover, my findings while considering issue one (supra), has shown that it was not correct that the Appellants? families and privies were not parties to the proceedings resulting in the judgment that the Respondent wants to enforce at the lower Court, in view of the affidavits of the Appellants quoted above, where each of the Appellants clearly stated that the judgment debtors/respondents were their son and privies in contrast to the position they now seek to take by this issue. The law is settled that an

appeal is a continuation of the original suit and parties will not be allowed to present a different case from the case presented at the Court below. See Hamanda & Ors. Vs. Ojuekun(2018) LPELR-44858 (CA) per Owoade JCA.

In any event, in view of my resolution of issue one against the Appellants to the effect that they have no shown how their interest could be affected by any outcome of the committal proceedings, this issue two is of no moment, and it is also resolved against the Appellants.

In conclusion, having resolved the two issues against the Appellants, this appeal lacks merit and deserves to be dismissed and it is hereby dismissed by me. The ruling of the Kwara State High Court sitting at Ilorin in suit No: KWS/44M/2012, delivered on the 18th December, 2014, by Hon. Justice M. A. Folayan is hereby affirmed by me. The cost of fifty thousand Naira only (N50, 000) is awarded to the Respondent.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of perusing the draft of the judgment just delivered by my learned brother Aliyu, JCA. Thus, I cannot but concur with the reasoning postulated therein, to the

effect that the instant appeal lacks merits. I adopt the said reasoning as mine, dismiss the appeal and accordingly abide by the consequential order made in the judgment.

HAMMA AKAWU BARKA, J.C.A.: I was opportune to have read in draft the lead judgment of my learned brother Balkisu Bello Aliyu JCA before now.

I endorse the resolution of the Preliminary Objection as well as the two issues agitated upon by counsel. Whereas I fully agree that the Preliminary Objection is wanting in merit, it is my humble view that the main appeal equally fails, as being unmeritorious.

?In the event, I also dismiss the Preliminary Objection as well as the main appeal, thus affirming the Ruling of M. A. Folayan in Suit No. KWS/44M/2012 delivered on the 18th day of December 2015. I abide on order made as to costs.

Appearances:

Saka Rasak Ayodeji, Esq. with him, Isiaka Abdurasheed, Esq.For Appellant(s)

Goke B. Akande, Esq. with him, S. K. Akande, Esq.For Respondent(s)

Appearances

Saka Rasak Ayodeji, Esq. with him, Isiaka Abdurasheed, Esq.For Appellant

AND

Goke B. Akande, Esq. with him, S. K. Akande, Esq.For Respondent