Mr. S.A. Ibrahim V. Mr Azeez Adekunle (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment)

Fundamentally, this Appeal stems from the ruling of Honorable Justice Mahmud Abdulgafar of the Kwara State High Court of Justice delivered on 13th January, 2010 dismissing the appellant’s application.

The Appellant, before the lower court brought a motion exparte under Order 1 – 4 Rule 19(1) of the Kwara State Civil Procedure Rules 2001, that the “Iloffo Oba-in-Council as represented by Oba Samuel Niyi Dada be joined as a “Third Party” to this suit. And for such further or other orders as this Honorable court might deem fit to make”. And same was dismissed by the lower Court.

Flowing from above, the appellant filed a notice of appeal containing two grounds of appeal. Similarly the appellant formulated two issues for determination as follows:

1. Whether the learned trial Judge conducted the trial of the appellant’s exparte application for joinder with fairness and in accordance with the law.
2. Whether the learned trial Judge is not wrong in law in refusing to grant the appellant’s application for joinder on the ground that there is no dispute between the appellant and the Third Party.

The respondent on his own adopted the issues as formulated by the appellant with little modification. For ease of reference the issues are highlighted below:

1. Whether the trial High Court treated the Appellant’s ex parte application for joinder of third party with fairness and in accordance with law.
2. Whether the trial High Court was wrong in law in dismissing the appellant’s application for joinder of the third party.

The two parties in line with the practice of this court adopted their brief of argument on 10th November, 2010. The appellant vide his counsel adopted the appellant’s brief of argument and prayed this honorable court to strike out the respondent’s brief of argument. He finally urged this court to allow the appeal and grant the prayers of the appellant. He further prayed this court to strike out the respondent’s brief filed 28/9/2010 for not complying with order 17 of the Court of Appeal Rules.

The respondent’s counsel urged this honorable court to dismiss the appellant’s appeal and that this court should discountenance with the notice of preliminary objection.

The preliminary objection is of no moment, as this court granted the respondent extension of time within which to file his respondent’s brief of argument and same was complied with by the respondent.

In determining this appeal, this court will appraise all the issues raised by the parties wherein all the issues will be determined. The issues as raised by the appellant will first be reviewed before that of the respondent.

The appellant’s issues will be used to determine this appeal.

ISSUE 1

1. Whether the learned trial Judge conducted the trial of the appellant’s exparte application for joinder with fairness and in accordance with the law.

The appellant’s counsel Chief Odeyemi urged this honorable court to reject the findings of the lower court and that it was not true that the applicant filed his application when hearing commenced, he stated that hearing commenced on 14th of October, 2009 and that he filed his application on the 8th of October, 2009. He therefore, urged this Honorable Court to hold that he filed his application for joinder before the commencement of hearing at the lower court.

He further argued that the appellant’s application has not occasioned any denial to respondent’s right to fair hearing.

Chief S.F. Odeyemi, further argued that the learned trial Judge failed to follow the provisions of Order 14 Rule 19(1) and Order 11 Rule 8 of the High Court Civil Procedure Rules of Kwara State which he complained of but was overruled by the lower court.