MUFTAU BOLAJI YAHAYA v. ALHAJI YUSUF JIMOH ORIRE & ORS
(2019)LCN/13578(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of June, 2019
CA/IL/5/2018
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
MUFTAU BOLAJI YAHAYA – Appellant(s)
AND
1. ALHAJI YUSUF JIMOH ORIRE
(Magaji of Oba Nisunwa)
2. ALHAJI SALAWU JIMOH ORIRE
3. ALHAJI MAHMOOD JIMOH ORIRE
(For themselves and on behalf of the entire member of Obanisunwa village)
4. MRS MARIAM SHEU
5. ALHAJI FATAI
(Trading under the name and style of Aliyu Fat Petroleum)
6. FEDERAL MINISTRY OF ENVIRONMENT AND URBAN DEVELOPMENT – Respondent(s)
RATIO
FACTR TO DETERMINE WHETHER A DECISION OF A COURT IS FINAL OR INTERLOCUTORY
It is trite, that the fundamental guiding factor in appreciating whether a decision of a Court is final or interlocutory, is the finality of the determination of the rights of the parties in an action. Thus, where the order made by the Court finally determines the rights of the parties in regard to a particular question or issue, it is deemed a final decision, the fact that it arises from an interlocutory application, notwithstanding. A decision in consequence of an interlocutory proceedings may be either interlocutory or final, depending on the effect of the order in regard to the rights of the parties. See NGIGE VS. DISU (2017) 16 NWLR (Pt. 1590) 1 @ 16. Undoubtedly, a decision that effectively renders the Court making it functus officio is essentially a final decision. See NGIGE VS. DISU (Supra). PER SAULAWA, J.C.A.
FACTOR TO BE CONSIDERED IN AN APPLICATION
The doctrine is well settled, that one of the cardinal factors that ought to be considered in an application, is that the applicant must show that he would be bound by the ultimate consequence of the action, in the event of the orders in judgment affecting him. Secondly, that it would be prejudicial to his interest if he was not joined. See OSUNRINDE VS. AJAMOGUN (1992) 6 NWLR (Pt. 246) 156. PER SAULAWA, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A (Delivering the Leading Judgment): The instant appeal is consequent upon the ruling of the Kwara State High Court, holden at Ilorin delivered on November 6, 2017 in suit No. KWS/357/2010. By the ruling in question, the Court below, Coram S. M. Akanbi, J., dismissed the Appellant?s application filed on March 22, 2017 seeking leave to be joined as a defendant to the said suit.
BACKGROUND FACTS
The suit giving rise to the instant appeal was instituted by the 1st ? 3rd Respondents on December 22, 2010 seeking some declaratory and injunctive reliefs against the 4th ? 6th Respondents herein. By the statement of claim thereof, filed along with the writ of summons, the 1st ? 3rd Respondents sought against the 4th ? 6th Respondents the following reliefs:
1. A declaration that the Claimant are the owners of the land known as Obaninsunwa village lying, being and situate along Egbejila Road, off Ilorin-Ogbomosho Road, Opposite the Airport, Ilorin.
?2. A declaration that the purported acquisition of any portion of Obaninsunwa resettlement land by the Federal
1
Government is null, void and of no effect.
3. A declaration that the purported allocation of Obaninsunwa resettlement land to 1st and 2nd Defendants by the 3rd Defendant, her Agents, servants and privies is null, void and of no effect.
4. An order of this Honourable Court nullifying any document(s) of title however called issued to the 1st and 2nd Defendants over Obaninsunwa land along Ilorin-Ogbomosho Road, opposite the Airport, Ilorin.
5. A declaration that the Claimant are (sic) entitled to the statutory Right of Occupancy over Obaninsunwa resettlement land.
6. An order of perpetual injunction restraining the Defendants by themselves, Agents, Servant and privies from committing acts of trespass on the land.
In the course of the trial of the action, the Appellant deemed it expedient to seek the leave of the Court below, vide a motion on notice filed on 22/03/2017, to be joined as an interested party. He specifically prayed for the following reliefs:
1. LEAVE of this Honourable Court allowing the Applicant to be joined as Co-defendant in this suit.
2. AN ORDER in consequence of (1) above amending all the processes already
2
filed in this case to reflect the Applicant as Co-Defendant in this suit and further directing the service of all Court processes in this suit on him (Applicant).
3. AN ORDER to recall all the witnesses who have led evidence in this suit prior the joinder of the applicant.
4. AND FOR SUCH ORDERS as this Honourable Court may deem fit to make in the circumstances of this matter.
The said motion was predicated upon a total of 8 grounds, Viz:
a) The Applicant acquired his interest over a portion of the piece of land in disputed via allocation from the third defendant over a size measuring 600.00 square metres for a term of 99 years.
b) The allocation of the plot stated above has imbued the applicant with a number of responsibilities like annual ground rent, survey fee, title processing fee, registration fee and a host of others towards the third defendant.
c) The Appellant fortuitously became aware of the pendency of this suit when the officers of the 3rd defendant visited his site on 17th March, 2017 and is desirous of being joined as Co-Defendant to same.
d) By this act of the parties litigating on the Applicant?s parcel
3
of land (now in dispute) the title and/or interest of the Application on the said parcel of land is being threatened.
e) A joinder of the Applicant as Defendant will assist the Honourable Court to effectively and effectually dispose of the suit on its merit.
f) Refusal of this application will unduly prejudice the Applicant and violate his right to fair hearing as guaranteed by the Constitution.
g) None of the parties on record will be prejudiced by the grant of this application.
h) The applicant?s presence is crucial and fundamental to the hearing of the suit.
Parties filed their respective processes including written addresses regarding the Appellant?s motion in question. At the conclusion of the hearing of the application, the Court below delivered the vexed ruling on the said November 6, 2017 to the conclusive effect:
It is a 2010 case, the delay emanated from the 3rd defendant. In all this application is refused as it is brought malafide. In effect the 3rd defendant application is refused parties are reminded of their right of appeal.
Dissatisfied with the vexed ruling, the Appellant filed the instant appeal
4
on December 19, 2017 thereby urging this Court to allow the appeal, set aside the vexed ruling of the Court below, grant the application (22/03/2017), and make an order remitting the suit to another Judge of the Lower Court.
On 29/04/19, when the appeal came up for hearing, the learned counsel adopted their respective briefs of argument, thus resulting in reserving judgment. Most particularly, the Appellant?s brief, settled by I. Abdulazeez Esq. on 15/02/18 but deemed properly filed on 19/9/2018 spans a total of 15 pages. At page 6 thereof, three issues have been raised, Viz:
(1) Whether the trial Court was right to have dismissed the appellant?s application for joinder as an interested party in the suit.
(2) Whether the learned trial judge was right in his refusal, failure and /or neglect to consider and give effect to the vital issues/points raised in the appellant?s application before the Court in the determination of the application.
(3) Whether the learned trial judge was right to have subsumed two different applications with varying reliefs in a ruling.
The issue No.1 is canvassed at pages 6 ? 10 of the
5
said brief, to the effect that taking in to cognizance the avalanche of unassailable evidence and the claims before it, the Court below went ahead to employ untenable legal condiments in determining the Appellant?s application for joinder as to whether or not he is a necessary party in the eye of the law. According to the learned counsel, the Court below not only ignored the Appellant?s interest in the subject matter, but in a clear demonstration of lack of sufficient appreciation of the case placed before it, emphasized only the age of the suit and the fact that he was aware of same through the 6th Respondent (3rd Defendant) as the grounds for refusing the application.
Exhibit A was alluded to the effect that the 6th Respondent, being the body through whom the Appellant obtained his title over the land in dispute is already a party before the Court. And that the said 6th Respondent had ceased to exercise any right of control over the land in dispute, thus cannot validly fight the cause of the Appellant. The case of ODADHE VS. OKUJENI (1973) 3 CSLR (Pt. 11) 1062 @ 1067, was cited to the effect that in land matter, an application for joinder is
6
granted as a matter of course, once the applicant has disclosed interest in the title of the land in dispute. See also REG. TRUSTEES VS. M.H.W.U.N. (2008) 34 NSCQR 321 @ 100; ILORIN WEST LOCAL GOVT VS. ALH MEMUDA JIMOH ORIRE (unreported) No. CA/IL/56/2011, delivered on 04/06/2012.
It was equally posited, that the decision of the Court below that paragraphs 2, 4 and 15 of the Affidavit in support and paragraphs 4 ? 13 of the statement of defence and counter claim portray the Appellant as a meddlesome interloper is with respect an act of determining the substantive matter at the interlocutory state. See SYLVANUS MOTUNE VS. ALH MOHAMMED GAMBO (1983) 4 NCLR 237 @ 293.
The Court is urged to resolve issue No.1 in favour of the Appellant.
The issue No. 2 is argued at pages 10 ? 12 of the brief, to the effect that the Court below was wrong to have failed to consider and give effect to the vital points and issues raised by the Appellant in his application before it in the determination of same.
It is submitted that the failure of the Court below to consider and give effect to the facts deposed to in the Appellant?s further Affidavit
7
has occasioned a miscarriage of justice, because if recourse had been had to them they would have been weighty enough to affect the decision of the Court below via grating the application. See OVUNWO VS. WOKO (2011) 6 ? 7 SC (Pt.1) 1 @ 20; AGU VS. NNADI (2002) 12 SCNJ 238 @ 244.
The Court is urged to resolve issue No.2 in favour of the Appellant.
The issue No. 3 is argued at pages 12 ? 13 of the brief, to the effect that the applications before the Court below were distinct, and from the two parties with the reliefs in nature. That whilst the application culminating in this appeal sought leave to be joined as a necessary party by the Appellant, the other application by the 6th Respondent sought leave to open her defence premised on the fact that the Court below had earlier foreclosed her defence. And there was no prayer for consolidating the two applications which could have warranted a sole ruling. Thus, the applications ought to have attracted separate rulings not embodied in the same ruling as it occurred in the case at hand. See IFEDIORAH VS. UME (1988) 2 NWLR (Pt.74) 5 @ 13.
It is contended, that the two applications upon which
8
the Court below embedded the two rulings in a single ruling is without basis in law, as the reliefs sought were different. That the law is that a Court?s decision is deemed appropriate once the Court shows proper understanding of facts, issue and law involved, and draws a proper conclusion, therefrom which is devoid of the ruling culminating in this appeal.
The Court is urged to resolve the issue No. 3 in favour of the Appellant.
Conclusively, the Court is urged to allow the appeal in its entirety.
On the part there of the 1st ? 3rd Respondents filed their brief on 15/11/18 but deemed properly filed and served on 31/01/19. It spans a total of 18 pages. At pages 1 ? 5 of the brief, a notice of preliminary objection is raised and argued by the Respondents? learned counsel. It is predicated upon 8 particulars.
In the main, it was submitted that the vexed ruling of the Court below was delivered on 06/11/17 while the notice of appeal was filed on 09/12/17. The Appellant had 14days within which to file the notice of appeal which lapsed on 20/11/17. See GARBA VS. UMMUANI (2012) LPELR ? CA/IL/50/2012 @ 30 ? 31
9
paragraphs C ? B; BOLEX ENT. NIG LTD VS. NCAR NIG. PLC (1997) 7 SCNJ 194.
Further submitted, that the vexed ruling of the Court below being interlocutory, the appeal is competent only with the leave of Court, even if it was filed within 14 days. See Section 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
Thus conclusively argued, that the appeal is incurably bad, incompetent and the result effect of which the appeal is liable to be dismissed. The Court is urged to accordingly dismiss the appeal.
The appeal is argued on the merits at pages 5 ? 17 of the said brief. Most specifically, two issues have been raised at page 7 thus:
1. Whether or not considering the Affidavit evidence placed Before the trial Court vis–vis, the stages and circumstances of this matter, the trial Court was right to have dismissed Appellant?s application for joinder.
2. Whether or not in the circumstances of this appeal the Court of Appeal will interfere with the trial Court discretion in refusing the application, for joinder.
The issue No.1 is distilled from grounds 1, 2 and 3 of the notice of
10
appeal and argued at pages 8 ? 12 of the brief. In nutshell, it?s submitted that an application for joinder is solely at the discretion of the Court, which must be exercised judicially and judiciously MRS. A. IBRAHIM VS. MR AZEEZ ADEKUNLE (2013) ALL FWLR (Pt. 667) 785 @ 787, 794 paragraphs F ? G?.
Regarding the question of who is a necessary party, the learned counsel cited and relied upon the cases ofGREEN VS. GREEN (1987) 3 NWLR (Pt. 61) 48; IGE VS. FARINDE (1994) 7 NWLR (Pt. 354) 42; IYIMOGA VS. GOVERNMENT OF PLATEAU STATE (1994) 8 NWLR (Pt. 360) 73. Thus, contended, that considering the 1st ? 3rd Respondents? reliefs in the Writ of Summons and Statement of Claims (pages 2 ? 7 of the records of proceedings and proposed Statement of Defence) (pages 34 ? 36) the Appellant was never a necessary party to the suit leading to this appeal. And his non-joinder would certainly not affect the Court in arriving at just determination of the case.
It is contended, that by the holding of the Court below at pages 64 ? 65 of the record, it is crystal clear that the Appellant?s purported land is
11
distinct and separate from the pieces of land of the 1st ? 3rd Respondents herein. That the Appellant constitutes a busy body, meddle some interloper and intruder. The Court is urged to so hold.
Further contended, that the case of ILORIN WEST LOCAL GOVERNMENT VS. ALHAJI MEMUDU JIMOH ORIRE (Unreported) Appeal No. CA/IL/56/2011 delivered on 04/06/2012, cited and relied upon by the Appellant is distinguishable from the instant case. That the Claimants in that case, infact they called only one when witness when the Appellant therein filed a motion for joinder. However, in the instant case, the 1st ? 3rd Respondents had testified and closed their case and 4th ? 6th Respondents? case had been closed for failure to put up their defence after series of adjournments. And that the matter had been adjourned for final Written Addresses when the Appellant filed application for joinder leading to this appeal.
The Court is urged to dismiss the appeal on this score.
?
The Issue No. 2 is argued at pages 12 ? 17, to the effect that the application for joinder as in the instant case, is always based on the
12
absolute discretion of the Court which must be exercised judicially and judiciously. See MV ?NOZOMI? VS. SEABRIDGE BUNKERING PTE LIMITED (2016) ALL FWLR (Pt. 861) 1378 @ 1396 paragraphs C ? E; IBRAHIM VS. ADEKUNLE (Supra) @ 794 paragraphs F ? G. See also Order 14 Rules 4 and 6 of the Kwara State High Court (Civil Procedure) Rules, 2005.
Copiously referring to the vexed ruling at page 64 of the record, it is contended that the holding of the Court therein is clear and unambiguous, showing that the Court considered all the materials and affidavit evidence placed before it arrived at just determination of the application.
It was vehemently postulated, that considering the circumstances of this case, no reasonable Court or Tribunal would grant the application as in the instant case. That the Appellant has woefully failed to point out the miscarriage of justice if any, he has suffered as a result. See OMOKARO VS. OMOKARO (2016) ALL FWLR (Pt. 828) 827 @ 848 ? 850 paragraphs H ? E.
The Court is urged to so hold and dismiss the appeal.
Conclusively, the Court is urged to dismiss the appeal
13
in its entirety.
In reaction to the 1st ? 3rd Respondents? brief, the Appellant filed a reply brief on 06/02/2019. It spans six pages. Pages 1 ? 4 thereof, relate to the 1st – 3rd Respondents? preliminary objection. It was submitted in the main, that by the vexed ruling in question, the Court below foreclosed the Appellant further rights of participating in the proceedings thereof. That a decision that renders the functus officio, is a final decision. See NGIGE VS. DISU (2017) 16 NWLR (Pt. 1590) 1 @ 16; UGO VS. UGO (2017) 18 NWLR (Pt. 1597) 218 @ 244.
It is postulated, that Section 242 is subject to 241 of the 1999 Constitution (supra), by the token of which the provision of Section 242 is subject to Section 241, and in the event of any conflict therewith, the provision of Section 241 prevails. Thus, this appeal being on ground of law alone, is competent. See KRAUS THOMPSON ORG. LIMITED VS. UNIVERSITY OF CALABAR (2004) 4 SC; ILORIN WEST LOCAL GOVERNMENT VS. ALHAJI MEMUDU JIMOH ORIRE (Unreported) Appeal No. CA/IL/56/2011 (Supra).
The Court is urged to so hold, and dismiss the
14
preliminary objection as same lacks merit to warrant being upheld.
The Appellant?s reply to the 1st ? 3rd Respondents? brief on the merits is contained at pages 4 ? 5 of the reply brief thereof. The Appellant conclusively urged upon the Court to dismiss the preliminary objection in question.
I have accorded an ample consideration upon the nature and circumstances surrounding the instant appeal, the submissions contained in respective briefs of the learned counsel vis–vis the entirety of the records of appeal.
DETERMINATION OF THE 1ST ? 3RD RESPONDENTS? PRELIMINARY OBJECTION
As copiously alluded to above, by the instant application thereof, the Appellant sought to be joined as on interested party to the suit. On the November 6, 2017, the Court delivered a ruling refusing the application, thereby foreclosing the right of the Appellant to ventilate the grievances thereof.
It is trite, that the fundamental guiding factor in appreciating whether a decision of a Court is final or interlocutory, is the finality of the determination of the rights of the parties in an action. Thus, where the
15
order made by the Court finally determines the rights of the parties in regard to a particular question or issue, it is deemed a final decision, the fact that it arises from an interlocutory application, notwithstanding. A decision in consequence of an interlocutory proceedings may be either interlocutory or final, depending on the effect of the order in regard to the rights of the parties. See NGIGE VS. DISU (2017) 16 NWLR (Pt. 1590) 1 @ 16. Undoubtedly, a decision that effectively renders the Court making it functus officio is essentially a final decision. See NGIGE VS. DISU (Supra).
In the instant case, by virtue of the vexed ruling thereof, the Court below has become functus officio by refusing the application. Therefore, the only option and remedy opened to the Appellant was to appeal against the said decision. See UGO VS. UGO (2017) 18 NWLR (Pt. 1597) 218 @ 244.
It is obvious from the foregoing postulates, that the cases of OLABUNMI VS. OYEWINLE (2013) LPELR SC 345/2012, GARBA VS. UMMUAN (2012) LPELR ? CA/IL/50/2012 @ 30 ? 30 paragraphs; BOLEX ENT NIG LTD VS. NCAR NIG PLC (1997) 7 SCNT 194, are in apposite to the instant case. And I
16
so hold.
Hence, against the back drop of the foregoing highlight, the preliminary objection is deemed unmeritorious, and it?s hereby dismissed by me.
DETERMINATION OF THE APPEAL ON THE MERITS
Thus, having dismissed the preliminary objection in question, the coast is now very much clear for me to proceed to determine the appeal on its merits. I have deemed it expedient to adopt the Appellant?s three issues for the ultimate determination of the appeal, anon.
ISSUE NO.1
The first issue raises the question of whether the Court below was right to have dismissed the Appellant?s application for joinder as an interested party to the suit. The issue has been distilled from grounds 1, 2 and 3 of the notice of appeal.
ISSUE NO.2
The second issue raises the question of whether the Court below was right in its refusal, failure and/or neglect to consider and give effect to the vital issues/points raised in the Appellant?s application before determining the application. It is not at all controversial, that an application for joinder of a person as an interested party to an action is discretionary. Indeed, the
17
Court seized of the matter has a discretion to grant or not to grant such an application. However, such a discretion must be exercised not only judicially but also judiciously. Thus, an appellate Court has no business whatsoever interfering with the lower Court?s exercising of discretion once it?s evidently judicious. See IBRAHIM VS. ADEKUNLE (2013) ALL FWLR (Pt.667) 785 @ 787, 794 Paragraphs F ? G.
The doctrine is well settled, that one of the cardinal factors that ought to be considered in an application, is that the applicant must show that he would be bound by the ultimate consequence of the action, in the event of the orders in judgment affecting him. Secondly, that it would be prejudicial to his interest if he was not joined. See OSUNRINDE VS. AJAMOGUN (1992) 6 NWLR (Pt. 246) 156.
In the instant case, Exhibit A is to the effect that the 6th Respondent, being the body through whom the Appellant obtained the title thereof, over the piece of land in dispute, was already a party before the Court below. And the facts are to the effect that the 6th Respondent has ceased to exercise any right of control over the portion of the land
18
allotted to the Appellant herein. Thus, the 6th Respondent cannot be expected to validly fight the cause of the Appellant in the absence of which, the Appellant would most probably be liable of acquiescence and lasches. Yet, the law is trite, that in land matters, an application for joinder as a party is granted as a matter of course, once the applicant is able to disclose an interest in the title of the land in dispute. See ODADHE VS. OKUJENI (1973) 3 ECSLR (Pt. 11) 1062 @ 1067; REG. TRUSTEES VS. MHWUN (2008) 34 NSCQR 321 @ 100.
Under Order 14 Rules 4 & 6 (1) of the Kwara State High Court (Civil Procedure) Rules 2005, it is provided:
4. Any person may be joined as defendant against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment.
6. (1) it shall not be necessary that every defendants shall be interested as to all the reliefs prayed for or as to every cause of action included in any proceeding against him.
Against the backdrop of the
19
foregoing provisions of Order 14 Rules 4 and 6 (1) of the Kwara State High Court (Civil Procedure) Rules, 2005 (Supra), it is obvious that the whole essence of joinder of a necessary party, is that such a party may be bound by the decision and order of the Court.
The Appellant?s averments vide the affidavit in support of the vexed application (Pages 23 ? 25 of the record), are to the effect that he became aware of the pendency of the suit on 17/3/17 when the 6th Respondent?s (3rd Defendant?s) officers went on inspection of the land in dispute. That he then became desirous of being joined as a co-defendant; his joinder a co-defender would assist the Court to effectively and effectually dispose of the suit on its merits; refusing the application would unduly prejudice him and violate his right to fair hearing as guaranteed by the Constitution; and that none of the parties on record would be prejudiced by granting the application. See paragraphs 4 ? 9 of the Affidavit in support of the application (page 23 ? 25 of the Record).
In consideration of the application, the Court below, conclusively ruled at page 66 of the
20
record:
It is a 2010 case, the delay emanated from the 3rd defendant. In all, this application is refused as it is brought malatide in effect the 3rd defendant application is refused. Parties are reminded of their right of Appeal.
Indeed, the Court below has earlier in the ruling at pages 64 ? 65 alluded to the fact that the matter was instituted [since] in the year 2010 with witnesses called and claimants closing their case. The Court equally observed:
Besides the undue delay in bringing this application, the piece of land from the statement of defence has nothing to do with the claim of the claimant i.e. ownership of land known as Obanisunwa Village lying, being and situate at along Egbejila Road Ilorin Opposite Airport?
There is no doubt that this case can be effectually and completely settled without the presences (sic) of the applicant as he is a meddlesome interloper to cause confusion or incongruity.
?Yet, it is so obvious from the averments contained in the statement of claim thereof, the 4th and 5th Respondents (1st and 2nd Defendants) have admitted (in paragraph 3) that they obtained their title to the piece of
21
land in dispute from the Respondent (3rd Defendant) who acquired a portion of the Land in question for grant to interested persons.
?By the tenor thereof, paragraph 13 of the statement of claim is to obvious effect that there are some interested persons who are not before the Court, and being shut out of a matter that concerns them would ultimately affect their overall interest in the land in dispute. The fact that the 1st ? 3rd Respondents have unwittingly avoided joining the Appellant as a party to the vexed suit, cannot derogate from the incontrovertible facts that he is a necessary and desirable party owing to the title of his piece of land being at stake.
In my considered view, the Appellant, by the application and affidavit in support, has succeeded in establishing that (1) he is someone who is entitled to some interest in the land in dispute, and that he?s likely to be affected by the consequence of the action; and that he?s a necessary and desirable party whose joinder is crucial to the ultimate determination of the matter in dispute. See GREEN VS. GREEN (1987) 13 NWLR (Pt. 61) 480; IGE VS. FARINDE (1994) 7 NWLR (Pt. 354) 42;
22
IYIMOGA VS. GOVT. OF PLATEAU (1994) 8 NWLR (Pt. 360) 73; ECO BANK NIG PLC VS. GATE WAYS HOTEL LTD (1991) 11 NWLR 403 @ 421.
In the circumstance, the answer to both issues 1 & 2 ought to be in the negative, and same are hereby resolved in favour of the Appellant.
ISSUE NO. 3
The third issue raises the question of whether the Court below was right to have subsumed the two different applications with varying reliefs in a ruling. The third and last issue is derivable from ground 5 of the notice of appeal.
In the instant case, the Court below has prefaced the vexed ruling at page 62 of the record thus:
RULING
This ruling is sequel to motion on notice date and filed on 23/3/2017 brought pursuant to Order 14 Rules 4 and 6 of the High Court Civil Procedure Rules 2005, Section 36 of 1999 Constitution as Amended and the inherent jurisdiction of the Court, it prays for leave of this Court allowing the applicant to be joined as co-defendant in this suit.
?
I have painstakingly considered the entire ruling spanning five pages (62 ? 66 of the record). Contrary to the submission of the Appellant?s learned counsel under the
23
issue No. 3, there is nowhere in the vexed ruling that the court below alluded to the second application in regard to the 6th Respondent (3rd Defendant). Not surprisingly, the Court below has not made any specific finding in the vexed ruling that touches on the alleged 6th Respondent?s application.
Thus, I am of the considered view, that the allusion to the purported second application in respect of the 6th Respondent has amounted to a sheer speculation, and same ought to be discountenanced. Consequently, the third issue is accordingly hereby discountenanced for being speculative.
Hence, against the backdrop of resolving both issues 1 and 2 in favour of the Appellant, the appeal resultantly succeeds, and it is hereby allowed. The ruling of the Kwara State High Court, holden at Ilorin, delivered on November 6, 2017 in suit No. KWS/357/2010, by S. M. Akanbi, J; is here by set aside.
Consequently, the said suit (KWS/357/2010) is hereby remitted to the Chief Judge, Kwara State for reassignment to another Judge of the Court below for trial.
Parties shall bear their respective costs of litigation.
24
HAMMA AKAWU BARKA, J.C.A. : The judgment of my learned brother Ibrahim Mohammed Musa Saulawa PJ was made available to me in draft before now. Having studied the record of appeal and the submission of learned counsel, I cannot but agree with the reasoning brought to bear on the issues that arose for determination and the conclusion arrived at. I also agree that the appeal succeeds and is hereby allowed by me. I also order that the case be remitted to the Chief Judge of Kwara State to be re-assigned to a different judge other than Akanbi J, and abide on order made as to costs.
BALKISU BELLO ALIYU, J.C.A.: I had the advantage of reading before today the draft lead judgment just delivered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA. His Lordship has exhaustively dealt with all the issues in this appeal, and I agree with him that the Preliminary Objection raised by the 1st to 3rd Respondents lacks merit and same is also dismissed by me.
?I allow the appeal and set aside the ruling of Kwara State High Court Sitting at Ilorin delivered on 6th November 2017, by S. M. Akanbi J; in suit NO. KWS/357/2010. I abide by the
25
orders made in the lead judgment, including order to cost
26
Appearances:
Ismail Abdulazeez, Esq.For Appellant(s)
J.S. Muhammed, Esq. with him, Alamoyo Sulaiman, Esq. for the 1st-3rd Respondents.For Respondent(s)
Appearances
Ismail Abdulazeez, Esq.For Appellant
AND
J.S. Muhammed, Esq. with him, Alamoyo Sulaiman, Esq. for the 1st-3rd Respondents.For Respondent