Usman Dan Fodiyo University, Sokoto V. Professor S. U. Balogun & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

This is an interlocutory appeal against the rulings of the Federal High Court presided over by Hon. Justice Lambo Akanbi, of the Federal High Court, Sokoto Division, in suit No. FHC/S/CS/10/2001 delivered on 1/6/2001 and 16/1/2002 respectively.

The 1st respondent was until 30th December 2000, an academic staff in the employment of the appellant. Sometimes in 1999, the visitor to the appellant constituted a visitation panel under the chairmanship of the 2nd respondent to look into all matters that will improve the learning and research environment and the well being of the students and staff of the appellant. In the course of carrying out his assignment the 2nd respondent received memoranda from the members of the appellant’s community including thirteen members of a self-style association of “Senior Academics”. The 1st respondent was at all material time a member of this association. At the end of its assignment the 2nd respondent’s panel issued its report in which it made some recommendations for consideration by the visitor relating and concerning, inter alia, the 1st respondent. The 2nd respondent’s panel particularly found that the 1st respondent was a liability and threat to peace to the appellant consequently recommended that he be compulsorily retired with full benefits from service of the appellant in the public interest. After due consideration, the visitor accepted the said recommendation and directed that the 1st respondent be retired from the services of the appellant. Following this directive of the visitor the appellant by a letter dated 30th December,2000 retired the 1st respondent.

Unhappy with the compulsory retirement, the 1st respondent by a motion ex-parte dated 15/3/2001, sought and obtained the leave of the Federal High Court, Sokoto Division to apply for an order of certiorari to bring the proceedings, report, findings and recommendation of the 2nd respondent’s panel and the comments and decisions of the visitor to the appellant in so far as they affect and relate to the 1st respondent to the court for the purpose of being quashed.

The motion ex-parte was brought in pursuant of the provisions of order 47 rule (3) of the Federal High Court (Civil Procedure) Rules, 2000.

Before hearing could commenced on the motion on notice dated 15/3/2001 for certiorari the appellant filed two separate motions/notices of preliminary objection challenging the competence of the action and the jurisdiction of the court. After hearing parties on the preliminary objection the lower court in two separate rulings overruled the appellant on all the grounds of the objection and set down the case for hearing.

Dissatisfied with the rulings of the court, the appellant filed two separate notices of appeal filed on 7/6/2001 and 23/1/2002 to this court contained at pages 183 – 185 and 220 – 223 respectively in the printed record. The said grounds of appeal with their particulars are as follows:

“(i) The learned trial Judge fell into grave error when he held that the affidavit of service filed on the 29/3/2001 i.e the day of hearing the motion for certiorari is in compliance with Order 47 rule 5 (6) of the Federal High Court (Civil Procedure) Rules 2000.

Particulars

(a) The learned trial Judge failed, refused or neglected to consider the fact that was clearly in evidence before the court that the motion for an order of certiorari had been adjourned/fixed/listed/entered for hearing against 29/3/2001 several days before the affidavit of service was filed;

(b) The learned trial Judge failed, refused or neglected to consider the fact that was judicially within the knowledge of the court that the affidavit of service dated and filed on 29/3/2001 was not before the court on 29/3/2001 when the matter came up for hearing;

(c) The learned trial Judge wrongly relied on the presumption of regularity in section 150 of the Evidence Act to engage himself in an unwarranted speculation as to the time when the affidavit of service might have been filed on 29/3/2001;

(d) The learned trial Judge misconceived/misconstrued the provision or requirements of Order 47 rule 5(6) of the Federal High Court (Civil Procedure) Rules, 2000.”

“1. The findings by the learned trial Judge that “the report used in 1999 is inchoate and was consummated on 30th December, 2000 vide exhibit “A” and that “these declaratory reliefs to my mind, can only be grounded on the retirement of the applicant as contained in exhibit “A”. In the circumstances aforesaid, I shall take it that the actual accrual date of the cause of action is 30th December, 2000. Consequently I hold that the action is not statute barred as it was commenced within 3 months from 30th December, 2000″ at page 8 of the ruling complained of are perverse as the same are not supported by the facts available before the court below.

2. The learned trial Judge erred when he held that ‘it is not the case of the applicant that the visitor, apart from setting up the 1st respondent panel, acted in any other capacity against the applicant’s interest. I am of the firm view that the case can be effectively and effectually determined without the visitor been made a party to the suit …. I am satisfied that the case can be effectively, effectually and completely determined in the absence of and without making the visitor a party to this action. Hence, I hold that he is not a necessary party to this case.

Particulars

(a) whereas on the motion on notice dated 15/3/2001 the applicant/respondent specifically prayed for “an order granting the claims of the applicant in terms of relief contained in the statement in support of this application”;

(b) whereas relief No. ii contained in the statement in support of the applicant/respondent’s application for an order of certiorari dated 15/3/2001 in which the applicant/respondent prayed, inter alia, for a “declaration that the findings, report, recommendation of the Professor I Adele Junadu into all matters that will improve the learning and research environment of the 2nd respondent, the comment of the visitor of the 2nd respondent …. are illegal, unconstitutional and in breach of the Applicant’s right to fair hearing and for lack of jurisdiction on the part of the respondent are therefore null and void.” (Italics mine for emphasis);

(c) the learned trial Judge totally failed or neglected to give due consideration for relief No. ii contained in the statement in support of the applicant/respondent may be.

(d) the learned trial Judge failed to consider that the visitor would be adversely affected and prejudiced in his right to fair hearing as guaranteed under section 36(1) of the 1999 Constitution if a declaration in the terms sought by the applicant/respondent under relief No. ii sought by the applicant/respondent were granted in the circumstances of this case.

3. The learned trial Judge erred when he held that ‘failure of the respondent/applicant to plead the statute of limitation with particulars of the date and events relied upon has rubbed him of the benefit of relying on same in this preliminary objection.

Particulars

The learned trial Judge wrongly relied on the provision of Order 26 rule 6 of the Federal High Court (Civil Procedure) Rules 2000 which provision relate to and apply only to proceedings begun by ordinary writ of summons in which pleadings are required to be filed by the parties.”

In accordance with the rules of practice and procedure of this court briefs of argument were filed and exchanged by the parties.

The appellant in the appellant’s brief dated 9/10/2002, filed on 10/10/2002, distilled the following issues for determination in this appeal:

“(a) whether or not the learned trial Judge was right in holding that the affidavit of service dated 29/3/2001 i.e the date of hearing the application for certiorari is in compliance with Order 47 rule 5(6) of the Federal High Court (Civil Procedure) Rules, 2000. This issue is distilled on ground 1 of the notice of appeal dated 7/6/2001;

(b) whether or not the learned trial Judge was right in holding that the claim seeking to quash the report report of the 1st respondent’s panel and the comment and decision of the visitor which was issued in 1999 is not statute barred. This issue is distilled from ground 1 of the notice of appeal dated 23/1/2002;

(c) whether or not the learned trial Judge was right in holding that the claims and reliefs sought by the 1st respondent before the court below can be effectively and effectually determined without joining the visitor to the appellant as a party to the suit. This issue is distilled from ground 2 of the notice of appeal dated 23/1/2002;

(d) whether or not the learned trial Judge rightly invoked and relied on the provision of Order 26 rule 6 of the Federal High Court Civil Procedure Rules, 2000. This issue is distilled from ground 3 of the notice of appeal dated 23/1/2002.”

The 1st respondent on the other hand in the 1st respondent’s brief dated 5/5/2003 deemed filed on 17/6/03 by order of this court, formulated three issues for determination in this appeal as follows:

“(a) Whether the affidavit of service dated and filed on 29/3/2003 and which was in the court’s file before it sat could not be regarded as being properly filed and its regularity presumed.

(b) Whether the claims of the 1st respondent could be said to be statute barred against the background that the chain of events leading to the 1st respondent’s claim was not culminated until the issuance of letter of dismissal dated 30th December, 2000 and whether the preliminary objection on this ground was properly brought.

(c) Whether the non-joinder of the visitor to the appellant as a party is fatal as the claims of the 1st respondent as constituted could be effectually determined without such a joinder.”

When the appeal came up for hearing on 16/1/06, learned senior counsel for the 1st respondent, Mr. Fagbemi, SAN, who was in court adopted and relied on the 1st respondent’s brief of argument. The appellant’s counsel though duly served was absent but the appellant’s appeal was deemed duly argued by virtue of the provisions of Order 9 Rule 9(5) of the Rules of this court as the appellant has filed the appellant’s brief. The 2nd respondent was absent, not represented and has not filed a brief of argument.

On the appellant’s issue (a) as to whether or not the learned trial Judge was right in holding that the affidavit dated 29/3/2001, the date of hearing the application for certiorari was in compliance with Order 47 Rule 5(6) of the Federal High Court (Civil Procedure) Rules, 2000, learned counsel for the appellant, J.C. Shaka, Esq, stated that the case for the appellant with respect to this issue is that the court below erred gravely when it held that the affidavit which was purportedly filed on 29/3/2001 and presented in court on 1/6/2001 when the notice of preliminary objection came up for hearing is in compliance with mandatory requirement of the Order 47 rule 5(6) of the Federal High Court (Civil Procedure) Rules, 2000.

He referred to page 139 lines 26 – 29 of the printed record. That on 29/3/2001 when the matter came up for hearing before the lower court, counsel for the 1st respondent informed the court that he had filed an application for substituted service which he was permitted and same was summarily granted. According to the learned counsel for the appellant no allusion whatsoever was made by counsel or court to filing or presence of an affidavit of service in pursuance of the provisions of Order 47 Rule 5(6) of the Federal High court (Civil Procedure) Rules, 2000. Reference was made to paragraph 7 of the affidavit challenging the competence of the application for certiorari where it was averred by the appellant/applicant that no affidavit in pursuance of Order 47 was filed or served on the parties to the suit by the 1st respondent. It is argued that the averment in paragraph 7 of the counter-affidavit was never challenged nor controverted by the 1st respondent in a counter-affidavit.

That the 1st respondent at the hearing of the preliminary objection and for the first time produced and served from the Bar a copy of an affidavit dated 29/3/2001 which the 1st respondent asserted was filed on the same date and the said affidavit is contained at page 1 of the printed record. It is contended by the learned counsel for the appellant who referred to pages 154 – 155 of the printed record that the finding of the learned trial Judge that the affidavit was filed on 29/3/2001 at 8.30am and placed before the court on the date of the hearing of the application is not supported by evidence. According to the learned counsel for the appellant the finding that the said affidavit was filed at 8.30am on 29/3/2001 seemed to be based on the conjecture of the trial court as well as on the oral submission of the counsel to the 1st respondent in reply to the objection and referred to at page 178 lines 24 – 29 of the record of appeal.

Relying on the authority of Jeric (Nig.) Ltd. v. Union Bank Plc. (2000) 15 NWLR (Pt.691) 447, (2000) 2 S.C. (Pt.11) 113 at 151 and Omo v. J.S.C. Delta State & 2 Ors. (2000) 12 NWLR (Pt.682) 444, (2000) 7 S.C. (Pt.11) 1 at 15 – 16, learned counsel for appellant submitted that the only thing that could have controverted or contradicted the averment in paragraph 7 of the affidavit in support of the preliminary objection is a counter-affidavit averting positively that the said affidavit was filed at 8.30am on 29/3/2001.

In conclusion, learned counsel for the appellant urged the court to resolve issue (a) in favour of the appellant.

In his response to the appellant’s issue (a), learned counsel for the respondent Lateef Adedigba, Esq, in the 1st respondent’s brief said that issue (a) centers principally on the affidavit of service which was filed on 29/3/2001 and whether it is in compliance with the provisions of Order 47 Rule 5(6) of the Federal High Court (Civil Procedure) Rules, 2000. He stated that the appellant in treating the complaint of non-compliance with Order 47 Rule 5(6) of the Rules of the Court cast aspersions on the conduct of the learned trial Judge that the learned trial Judge of the court below fished for evidence to come to the conclusion that the said affidavit was filed at 8.30am and was before the court when the court sat at 9.00am.

It is the submission of the learned counsel that by section 74 of the Evidence Act, every court, is enjoined to take judicial notice of its record. According to the counsel for the 1st respondent that the 1st respondent on 29/3/2001 filed an affidavit in compliance with Order 47 rule 5(6) of the Federal High Court (Civil Procedure) Rules and that the said affidavit was contained at pages 151 – 152 of the printed record. Reference was made by the learned counsel for the 1st respondent to pages 145 – 152 of the printed record which contains all processes filed on 29/3/2001. He stated that the Registry of the court below issued a single receipt No. 4000864238 for the processes filed on that date by the 1st respondent in this appeal. It is further stated by the counsel for the respondent that at pages 145 of the printed record there is an endorsement or initial of the Registrar of the court, date and time of the filing of the processes and the apparent features on page 145 are (1) signature of the Registrar, (2) date of filing which is 29/3/2001, (3) time of filing which is 8.30am. Learned counsel for the 1st respondent posed a question as to whether the learned trial Judge is not entitled to look at his record to find out when processes were filed? He answered the question by submitting that the learned trial Judge is perfectly entitled to do so.

Learned counsel for the 1st respondent argued that the submission of the learned counsel for the appellant that the finding of the learned trial Judge in respect of the filing of the affidavit of service is perverse, is unmaintainable and should be rejected by this court.

It is further submitted that there is a presumption of the correctness of the record of the court and the appellant has never at anytime challenged the record of the court below.

Reference was made to page 174 of the printed record by the learned counsel for the 1st respondent who contended that the learned counsel for appellant made a solemn admission of the filing of the affidavit in pursuance to order 47 rule 5(6) of the Federal High Court Rules on 29/3/2001. He argued that admission by the appellant’s counsel should be treated as an admission against the interest of the appellant. See Muojekwu v. Ejikeme (2000) 5 NWLR (Pt.657) 402 at 434. He pointed out that the appellant having admitted that much that the said affidavit was indeed filed on 29/3/2001, the same counsel cannot be heard to argue contrary to that position again. Concluding his submission on issue (a), learned counsel for the 1st respondent urged the court to resolve the issue against the appellant.

It is trite law that a process is duly filed in a court of law when paid for, and the best evidence of payment is a receipt. See Owena Bank Nigeria Plc v. Chief M.O. Olatunji (1999) 13 NWLR (Pt.634) 218 at 230. In the instant appeal, it is clear from page 145 of the printed record referred to the court by the learned counsel for the 1st respondent that a receipt in respect of the filing of the affidavit of service dated 29/3/2001 was endorsed by the Registrar of the court below. In the determination of the date of the filing of the affidavit of service as in this appeal, the trial court is severely handicapped, from looking beyond to rely in the submission of counsel as that will be engaging in speculation. It is trite law that submission by counsel cannot be a substitute for the evidence required on an issue in a case. See Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt.620) 552 at 561.

At page 174 of the printed record the learned counsel for the appellant inter alia said,

“Shaka ….. On the facts and regard being had on the process being had and served on by applicant the respondent/applicant will have to concede that the applicant/respondent did file an affidavit pursuant to Order 47 Rule 5(6) of the Rules of this court on 29/3/2001 …..”

Order 47 rule 5(6) reads:

“An affidavit giving the names and addresses of and the places and dates of service on, all persons who have been served with the notice of motion or summons is entered for hearing and, if any person who ought to be served under this rule has not been served, the affidavit shall state that fact and the reason for it, and the affidavit shall be before the court on the hearing of the motion or summons.”

Having regard to the above statement made by the learned counsel for the appellant on behalf of the appellant, I am unable to understand the insistence of the learned counsel for the appellant for the proof of the filing of the affidavit of service. It is trite law that what is admitted needs not to be proved. See Agbanelo v. U.B.N. Ltd. (2000) 7 NWLR (Pt.666) 534 at 549.

Documentary evidence where this is relevant ought to be produced and tendered as they speak for themselves against the ipso dixit of a witness in respect of such transaction which may not be readily accepted by the court. See F.A.T.B. Ltd. v. Partnership Inv. Co. Ltd. (2003) 18 NWLR (Pt.851) 35 at 75.

Section 150(1) of the Evidence Act, Cap 112, Laws of Federation, 1990 relied upon by the learned trial Judge in resolving the issue of the filing of the affidavit of service reads:

“150(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were compiled with.”

Perhaps, I need to emphasize that the learned trial Judge is seized of the matter and has resolved the issue of the filing of the affidavit of service based on the available materials before him relying on the provisions of section 150(1) of the Evidence Act, which he is entitled to do in the discharge of his judicial function. The learned counsel for the appellant on the other hand, apart from insinuating and casting aspersions against the learned trial Judge touching on the integrity of the learned trial Judge has failed to advanced any cogent reason in support of his claim relating to the filing of the affidavit of service. It should be noted that the averment in paragraph 7 of his affidavit in support of the notice of preliminary objection contradicts his admission contained at page 174 of the printed record reproduced herein. For the reasons stated above, I hereby resolved the appellant’s issue (a) against the appellant in favour of the 1st respondent.

The learned counsel for the appellant commenced his argument on issue (b) and (d) by stating that 1st respondent by a motion ex-parte dated 15/3/2001 commenced an action to challenge inter alia the proceedings, findings and recommendation, decision and comments contained in the report of Professor I. Adele Jinatu 1999 presidential visitation Panel into all matters that will improve the learning and research and well being of staff of the 2nd respondent.

It is submitted by the learned counsel for the appellant that by 31/12/99 a cause of action in terms of reliefs 1 and 2 claimed by the 1st respondent in the statement in support of the motion for leave had accrued.

On the definition of a cause of action reliance is placed on the authority of Patkum Industries Ltd. v. Niger Shoes Manufacturing Ltd. (1988) 12 S.C. (Pt.11) 1; (1988) 5 NWLR (Pt.93) 138; Bello v. A.-G. Oyo State (1986) 5 NWLR (Pt.45) 828.

It is contended that the court below was wrong in holding that the offensive report/recommendation/findings/ comments and or decision which seriously indicted the 1st respondent and recommended his retirement needed the appellant’s letter dated 30/12/2000 to consummate it.

According to the learned counsel for the appellant, the letter marked exhibit “A” contained at page 8 of the printed record gave rise to another cause of action that can be claimed independent of the indictment and directive to the appellant.

He further argued that the court wrongly relied on the provisions of Order 26 Rule (6) of the Federal high Court (Civil Procedure) Rules, 2000 to defeat the preliminary objection of the appellant. Learned counsel for the appellant urged the court to resolve issues (b) and (c) in favour of the appellant. Responding to the submission of the learned counsel for the appellant on issues (b) and (d), learned counsel, for the 1st respondent submitted that to determine whether an action is statute barred or not, the starting point is actually, when the cause of action arose or when it accrued, placing reliance on the authority of Afolayan v. Ogunrinde (1990) 1 NWLR (Pt.127) 369 at 373 and Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) at 1. Learned counsel for the 1st respondent pointed out that although the visitation panel set up by the visitor to the appellant carried out its assignment in 1999, the cause of action never accrued or arose until the issuance of the letter of dismissal dated 30/12/2000 as contents of the report are mere recommendations that can be accepted or rejected. He argued that the trial Judge rightly invoked the provisions of Order 26 Rule 6 of the Federal High Court (Civil Procedure) Rules, 2000 and urged the court to resolve issue (b) and (d) against the appellant and dismissed the appeal.

The learned trial Judge in his ruling at pages 210 – 212 of the printed record on these issues held,

“From these quoted four paragraphs it is clear that exhibit Balogun “1” recommended the retirement of the respondent/applicant. It is also clear that the exhibit came into being in 1990; but that is not the end of the matter. What is contained in exhibit Balogun “1”, is a recommendation which needs to be approved or disapproved. In other words, the exhibit consists of inchoate decisions in the form of recommendations.

The consummation of the panel’s recommendation can however be found in paragraphs 11, 12 and 13 of the same affidavit filed on 15/3/2001 which are quoted as follows:-

(1) That the 2nd respondent accepted the recommendations of the 1st respondent hence it accepted same by …. terminating my appointment vide exhibit “A”.

(2) That my employment with the 2nd respondent is subject to Usman Danfodiyo University Act.

(3) That under the University Act I am entitled to notice as well as opportunity to defend myself …. before I can be removed from office.

From these paragraphs, the question that follows is whether the cause of action arose in 1999 or on 30th December, 2000? But before answering this question, I need to consider the pertinent point raised by the applicant with respect to pleadings of the statute of limitation. The applicant submitted that the respondent/applicant is required by Order 26 Rules 6 to plead this in his reply in the counter-affidavit filed. The respondent/applicant submitted that certiorari proceedings are of a special nature which do not accommodate this rule hence he is not required to so plead.

With due respect, I disagree with learned counsel for the respondent/applicant. Like pleadings, parties are bound by their process filed in court. A party who commences an action by way of a certiorari proceedings is bound to state all the facts he intends to rely in seeking his reliefs or orders. Ditto for the Respondents. An application or motion is usually supported by an affidavit. It is necessary for an applicant in such application to state fully in his affidavit the facts he intends to rely upon in seeking the prayers or orders contained in the motion paper. Ditto for the respondent in opposition to the application. This is because except with the leave of the court, he will not be heard in respect of facts not contained in the affidavit. See the Supreme court case of Magnusson v. Koiki (1993) 9 NWLR (Pt.317) PG. 287 at 291.

Learned trial Judge, further went on to hold,

Thus, going by all the facts and other circumstances of this case, I am satisfied that the cause of action actually accrued on 30th December, 2000 when exhibit “A” was issued. The affidavit of the applicant filed on 15th March, 2001 which the respondent/applicant relied upon in paragraphs 11, 12 and 13 averred that the recommendation in exhibit Balogun “1” was accepted by the 2nd respondent consequent upon which the applicant was retired vide exhibit “A”.”

As rightly submitted by the learned counsel for the appellant, the issue of jurisdiction is very fundamental as it goes to the competence of the court or tribunal, if a court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the court to embark on the hearing and determination of the suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on hearing and the determination of the substantive matter. The issue of jurisdiction, can be raised at any stage of the proceedings in the court of first instance or an appeal court. See Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508, (1988) 7 S.C.1 at 11.

In Egba v. Adefarasin at page 20 of the report, Oputa, JSC asked how does one determine the period of limitation? The learned Justice of the Supreme Court proceeded to say that the answer is simple by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gives the plaintiff a cause of action and by comparing the date with the date on which the summons was filed. This can be done without taking oral evidence. If the time on the writ is beyond the time allowed by limitation law then the action is statute barred.

Applying the principle to the present case, it is very clear that the cause of action arose from the 30/12/2000 vide exhibit “A” as stated in paragraph 11 of the affidavit in support of the application for certiorari while the application was filed on 15/3/2001 within the three months period allowed for instituting an action.

Having read the affidavit in support, exhibit “A” attached to the supporting affidavit filed by the respondent/applicant and portion of the judgment of the learned trial Judge, reproduced herein, I am in complete agreement with the finding of the learned trial Judge. I also agree that it is incumbent on the appellant who raised the issue of statute bar to plead it in the statement of claim or in his counter-affidavit in the present case in order to avoid taking the respondent by surprise at the hearing of the application. I therefore resolved issues (b) and (d) against the appellant as no good reasons have been given by the appellant to warrant this court to interfere with the finding of the learned trial Judge.

The last issue argued by the appellant in the appellant’s brief is issue (c) as to whether or not the failure to join the visitor to the appellant vitiated the first respondent’s action. Learned counsel for appellant said that even from a cursory examination of the claims/reliefs sought by the 1st respondent it will reveal substantive allegations/claims against the visitor who has not been joined as a party to the action. According to the learned counsel for the appellant the claims against the visitor is stated on both the face of the motion ex-parte and the statement in support dated 15/3/2001. He referred to the finding of the learned trial Judge on this issue at page 213 lines 16 – 24 of the printed record. It is contended that reliefs 1 and 2 are directed partly against the exercise of the visitor of his powers under Section 15 of the University of Sokoto Act as well as the legality and constitutionality of his comments as well as his decision in relation to the report. Reference was made to Alfa v. Atanda (1993) 5 NWLR (Pt.296) 729 at 740; Awoniyi v. Amorc (2000) 10 NWLR (Pt.676) 522, (2000) 6 S.C. (Pt.1) 103 at 107; Attorney General of the Federation v. A.-G. Abia State & 35 Ors. (2001) 11 NWLR (Pt.725) 689, (2001) 32 at 70 in support of his submission on the issue of non-joinder of the visitor.

In conclusion learned counsel for the appellant urged the court to resolve this issue in favour of the appellant and to hold that the visitor to the appellant is a necessary party to the action.

In his response, learned counsel for the 1st respondent stated that the issue relates to a consideration of whether the non-joinder of the visitor to the appellant is fatal having regards to the claim of the 1st respondent which could be effectually determined without the visitor being a party. He referred to the 1st respondents claim at the trial court and argued that the claims are essentially directed against the acts of the appellant which arose from the action or inaction of the 2nd respondent. It is submitted that the appellant’s counsel did recognize that fact and thus buttressed same in the appellant’s brief of argument at page 1.2 of the appellant’s brief.

Learned counsel for the 1st respondent argued that the claims of the 1st respondent as constituted does not in any way affect the right to fair hearing of the visitor as the claims were never made against the visitor and where there is no complaint against a party, the non-joinder of the party will not affect the proper determination of the issues joined. See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt.184) 157; Guda v. Kitta (1999) 12 NWLR (PT.629) 21 at 49. It is pointed out that the visitor to the appellant apart from constituting the visitation panel did nothing against the 1st respondent hence no claims were made against the visitor and its joinder not necessary as the claim could effectually be determined without the visitor being joined.

In support of his submission learned counsel for the 1st respondent referred to and relied on the finding of the learned trial Judge at page 213 of the printed record. He urged the court to resolve issue (c) against the appellant.

At page 213 of the printed record, the learned trial Judge held,

“I have re-examined the applicant’s claim all over again with the view of determining the consequence or otherwise of failure to join the visitor. Reliefs Nos. (i) (ii) and (iii) are directed against the 1st and 2nd respondents and this is supported by the grounds upon which the reliefs are being sought in grounds 1, 2 and 3. It is not the case of the applicant that the visitor, apart from setting up the 1st respondent panel, acted in any other capacity against the applicant’s interest. I am of the firm view that the case can be effectively and effectually determined without the visitor been made a party to the suit. The cases of Town Clerk LTC v. Clement (1963) NSCC; (1963) 1 SCNLR 293; Lawal v. NEPA (1976) NSCC 163; Alfa v. Atanda (1993) 5 NWLR (Pt.296) Page 729 at 740.”

A party is a person the absence of whom a question in the action can not be effectually and completely settled and who is likely to be adversely affected by the decision reached in his absence. See Lajomoke v. Doherthy (1969) 1 N.M.L.R. 281; Carlen (Nig.) Ltd. v. Unijos (1994) 1 NWLR (Pt.323) 631 S.C; Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 4 NCLR 122, (1982) 12 S.C.1; Barrister Onyenucheya v. Military Administrator of Imo State & Ors. (1997) 1 NWLR (Pt.482) 429.

By a majority, the Supreme Court decided in Peenok Investment Ltd. v. Hotel Presidential Ltd. (Supra) that upon consideration of the rules, the River State Government was a necessary party but obliquely as it may directly be affected by the pronouncement on exhibits 15 and 17 of 1972 it was desirable to have the said Government joined as a party so as to be bound by the result and pronouncements therein, the non-joinder was not fatal to defeat applicant’s claim. In the instant appeal it is the appellant that has raised the issue of the joinder of the visitor to the appellant as a necessary party, the onus is on the appellant to prove that the visitor is not only a desirable party but a necessary party. Where there is no complaint against a party, the non-joinder of that party will not affect the proper determination of the issues joined. See Mr. A.O. Osho Bao Motors Ltd. v. Foeign Finance Corporation & Anr. (1991) 4 NWLR (Pt.184) 157 at 188 S.C. In determining whether to join a person as a party to an action the test is whether the person to be joined will have interest or irreparably prejudiced if he is not joined in the action. See Col. Hassan Yakubu (Rtd) v. Governor of Kogi State & 3 Ors (1997) 7 NWLR (Pt.511) 66.

Having regard to the reliefs sought by the 1st respondent in his application, the affidavit in support as well as the statement in support of the application, I agree with the learned trial Judge that the non-joinder of the visitor to the appellant is not fatal to the 1st respondent’s application.

I therefore also resolved issue (c) against the appellant in favour of the 1st respondent.

In the final analysis, I hold that there is no merit in the appellant’s appeal which is hereby dismissed. The rulings of the learned trial Judge, Akanbi, J, delivered on 1/6/2001 and 16/1/2002, respectively is hereby affirmed by me. I award costs assessed at N5,000.00 in favour of the 1st respondent against the appellant.

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Other Citations: (2006)LCN/1930(CA)