Ilorin West Local Government V. Alh. Memudu Jimoh Orire & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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