IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA ON THE 11 TH OF JUNE, 2013 BEFORE THE HONOURABLE JUSTICE A. B. MOHAMMED SUIT NO. FCT/HC/CV/599/12 BETWEEN: ADENIYI OLABODE STEPHEN - APPLICANT/ RESPONDENT AND 1. COMMISSIONER OF POLICE, FCT 2. HIS WORSHIP TOM TUKURA VERA ENEH Senior Magistrate, Wuse Zone 6, Abuja 3 THE REGISTRAR DEFENDANTS/RESPONDENTS Senior Magistrate Court, Wuse Zone 6, Abuja AND JPATEL & SONS NIGERIA LIMITED - APPLICANT/PARTY SEEKING TO BE JOINED. Parties: Appearances: Parties absent Ajiroghene Aruga Esq, for the Applicant A. N. Shuru Esq for the Party seeking to be Joined. RULING The Applicant filed a Motion on Notice No. M/28655/13, dated 8 th January, 2013 and brought pursuant to Order 7 Rules 1 & 2, Order 10, Rules 5(1), (2)&(16), Order 42 Rule 9(1) and Order 46 Rule 1 of the High Court of the 1
FCT Civil Procedure Rules, 2004 and the inherent jurisdiction of this Court, praying the Court for the following: (i) An Order of Court joining JPatel & Sons Nigeria Limited as a respondent in this suit prior to the hearing of the Application for Judicial Review. (ii) And for such further or other orders as the Honourable Court may deem fit to make in the circumstances. The ground upon which the application was brought were: (i) The Party Seeking to be Joined is interested in the outcome of the proceedings in view of the fact that its interest will be affected in this proceedings. (ii) The Applicant is the owner of the vehicle Toyota Corolla with Registration No. EF259EKY and the HP Laptop which the Applicant in this suit is claiming for its return in his third prayer in this suit and if this prayer is granted without hearing the party seeking to be joined, its interest in these properties will be lost. (iii) The party seeking to be joined is the nominal complainant in Charge No. CR/65/2011 wherein the Applicant is being charged for criminal breach of trust contrary to the provisions of Sections 288, 312 and 309 of the Penal Code Law of the FCT. The Application was supported by a seventeen (17) paragraphs Affidavit deposed to by one Mase Daphne Acho, a legal practitioner in the law firm of A.M. Ma aji & Partners, the Solicitors to the party seeking to be joined. Attached to the Affidavit were Exhibits UP1, UP2, UP3A, UP3B, UP3C, UP4 and UP5. 2
In his Written Address in support of the Application adopted by Abdul Mohammed Esq, learned Counsel for the party seeking to be joined, I.C Okolo Esq, raised a sole issue for determination, which was whether the applicant has shown sufficient interest by the Affidavit evidence as to be joined as a party in this suit. Learned Counsel cited Order 10 Rule 5(1) of the Rules of this Court and submitted that it is clear from the provisions of the Rules that the decision on whether to join a party or not is based on the discretion of the Court. He also submitted that it is the law that the exercise of such discretion is based on judicial and judicious grounds. He explained that in an application of this nature, the Court is enjoined to discern from the affidavit evidence whether from the affidavit evidence the applicant has disclosed sufficient interest which makes his joinder necessary for the effective resolution of the matter or that the Applicant will be affected by the decision of the court. He cited in support ACB PLC v NWAIGWE (2001) 1 NWLR (Pt. 694) 305. Counsel submitted that the question is whether on the face of the depositions contained in paragraph 3 of the supporting Affidavit and Exhibit UP2 the Applicant will be affected by the decision of the court if this proceedings are conducted without the party seeking to be joined. Counsel pointed out that the Applicant s third prayer in the Application for Judicial Review includes the grant of an Order of this Honourable Court, contingent upon the grant of relief No. 2, directing the 2 nd and 3 rd Respondents to forthwith release to the applicant the Toyota Corolla Car with Registration No. EF 259 EKY and one HP Laptop which are in custody of the Court below. Counsel submitted that this clearly puts the interest of the party seeking to be joined in issue and this application has become imperative. He cited in support the case of RE: BENSON (2002) 1 NWLR (Pt. 802). Counsel urged the Court to 3
resolve this issue in favour of the party seeking to be joined and grant the application. In opposition to the application, the Applicant/Respondent did not file any Counter-Affidavit. But his Counsel, Gbenga Olagundoye Esq, filed a Reply on Point of Law in which he raised the sole legal question of whether the Applicant not being a party to the criminal charge sought to be quashed can be joined in the present application for judicial review. Counsel submitted that the central issue for determination in this suit is an application for judicial review primarily to quash the proceedings of the 2 nd Respondent and more particularly Charge No. CR/65/2011 preferred against the Applicant by the 2 nd Respondent who is a judicial officer that entertains and framed the criminal charge against the Applicant. Counsel cited EBANGI v STATE (2010) 1 NWLR (Pt. 1176) 565 at 575, paras. D E, where an order of certiorari was defined as a prerogative relief granted by the High Court to quash the order of proceedings of an inferior court or tribunal which has acted in excess of its jurisdiction and that the order is granted upon application of an aggrieved party to the High Court. Counsel submitted that the principal aim of an order of certiorari is to quash the order of proceedings of an inferior court that acted in excess of its jurisdiction and as such only an aggrieved party can validly bring an application in this respect. He argued that an action for certiorari such as this one does not admit any other person other than the parties to the proceedings sough to be quashed, and the party seeking to be joined is neither the judicial officer that entertained the criminal charge against the Applicant/Respondent not a party to the criminal Charge No. CR/65/2011 before the 2 nd Respondent. He added that the party seeking to be joined does not have any direct interest in the subject matter of this suit and relied on Order 42 Rule 5(3) of the Rules of this 4
Court. He submitted that the proper parties in the instant case, apart from the parties to the criminal proceedings, are the Magistrate and the Registrar of the Court, and that the Rules of Court do not admit of any other party, such as the party seeking to be joined, who is not directly affected by the criminal charge now sought to be quashed. On the need for party seeking to be joined to have a direct interest in the suit, learned Counsel relied on the case of BALA v DIKKO (2013) 4 NWLR (Pt. 1343) 52 at 63-64, paras. H A, and submitted that the party seeking to be joined in this application has not disclosed sufficient interest in the dispute between the Applicant and the Respondents. He argued that the interest of the party seeking to be joined in this suit, particularly on the properties whose ownership is not in dispute is merely indirect to the principal relief sought by the Applicant before this Court. He further argued that the persons directly affected in the criminal proceedings sought to be quashed as contemplated by Order 42 Rule 5(3) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 are the proper persons to be heard before this Court. Counsel submitted that an application for judicial review is a rigid and technical application usually initiated or commenced with leave of court as provided by Order 42 of the Rules of this Court, and a writ of certiorari is principally aimed at quashing the proceedings of a judicial officer or administrative body where they acted in excess of jurisdiction. He relied on ANAEKWE v UMEANO (2009) 5 NWLR (Pt. 1135) 149 at 427-428, paras H A; L.S.J.S.C. v KAFFO (2008) 17 NWLR (Pt. 1117) 525 at 543-544, paras. H B; and OKANOLA v ABIOYE (2013) 3 NWLR (Pt. 1341) 221 at 233, paras. A D. Counsel submitted that the joinder of the party seeking to be joined is not 5
necessary and this application can be effectively determined without the joinder of the party seeking to be joined. Counsel also argued that the Applicant is not claiming the ownership of the properties of the party seeking to be joined in this suit, and if this Court finds that the 2 nd Respondent exceeded its jurisdiction in the charge framed against the Applicant in this suit, the criminal charge framed against the Applicant will be quashed and the status quo ante will be maintained, and as such the interest of the party seeking to be joined in respect of the properties held as lien by the Applicant for unpaid monies would not be extinguished or lost because the party seeking to be joined still retains the unquestionable legal right to institute an action for the recovery of the properties. Counsel pointed out that this Court may even decide to refuse the third arm of the Applicant s relief, since the primary relief is for an order of certiorari aimed at quashing the proceedings or charge framed by the 2 nd Respondent against the Applicant in Charge No. CR/65/2011. Counsel submitted that this application for joinder is incompetent and urged the Court to dismiss same with cost. The issue in this application if whether the Applicant has made out a case for his joinder in this suit. In AJAYI & ORS V. JOLAYEMI (2001) LPELR- SC.5/1997 the Supreme Court, per Ogwuegbu, JSC stated the underlying principle governing the joinder of parties thus: The principle guiding joinder of parties as provided in our various rules of court has received judicial interpretations in our courts and in courts of other common law jurisdictions. The purpose of the rules is to allow a plaintiff to proceed in the same action against all defendants against whom he alleges to be entitled to any relief whether his claim is brought against the defendants jointly, severally or in the alternative. The person to be joined must be someone whose presence is necessary as a party 6
and the only reason which makes him a necessary party to an action is that he should be bound by the result of the action and the question to be settled. There must be a question in the action which cannot be effectually and completely settled unless he is a party." (P. 28, paras. A-E) See also: MOGAJI & ORS. V. FABUNMI & ANOR (1986) LPELR- SC.249/1984 and AKINDELE v ABIODUN, cited by Counsel to the Applicant above. I have considered the averments, exhibits and submissions of the parties. From the Originating Motion on Notice in this suit, the Applicant has sued the Commissioner of Police, FCT; His Worship Tom Tukura Vera Eneh, Senior Magistrate, Wuse Zone 6, Abuja; and The Registrar of the Senior Magistrate Court, Wuse Zone 6, Abuja, seeking for: (i) an order removing unto this Court for the purposes of its being quashed by an order of certiorari, the proceedings and more particularly the charge preferred against the Applicant by the 2 nd Respondent, Senior Magistrate sitting at Wuse Zone 6, Abuja in Case No. CR/65/2011 between Commissioner of Police V Adeniyi Olabode Stephen. (ii) AN order of certiorari quashing the proceedings and quashing the proceedings and more particularly the charge preferred against the Applicant by the 2 nd Respondent with respect to Case No. CR/65/2011 between Commissioner of Police V Adeniyi Olabode Stephen. (iii) An order of the Honourable Court, contingent upon the grant of relief No. 2 above, directing the 2 nd and 3 rd Respondent to forthwith release to the Applicant the Toyota Corolla Car, with 7
registration Number EF 259 EKY and one HP Laptop which are in the custody of the court below. The grounds upon which the party seeking to be joined is seeking to be joined as a Defendant in the suit were that the party seeking to be joined is the nominal complainant in the Charge No. CR/65/2011 wherein the Applicant is being charged for criminal breach of trust contrary to Sections 288, 312 and 309 of the Penal Code Law of the FCT and that he is the owner of the vehicle Toyota Corolla with Registration No. EF259EKY and HP Laptop which the Applicant in this suit is claiming for its return in his third prayer in this suit and if the prayer is granted without hearing the party seeking to be joined, his interest in these properties will be lost. In the supporting affidavit of the party seeking to be joined, it was averred to the effect that the Applicant was an employee of the party seeking to be joined and was given the Toyota Corolla Car and the HP Laptop by the party seeking to be joined as part of the work tools for the efficient running of the office. That when the party seeking to be joined found out that the Applicant was engaged in actions detrimental to its interest it initiated an investigation and while that was going on, the Applicant dropped an resignation letter and walked away. That based on the outcome of the investigation, the party seeking to be joined dismissed the Applicant and severally demanded the return of its Toyota Corolla car and the HP Laptop in the custody of the Applicant as working tools, but the Applicant refused to return same as a result of which the party seeking to be joined reported the matter to the police, which resulted in the Charge No. CR/65/2011 now sought to be quashed. In his submission, learned Counsel for the party seeking to be joined has argued that the Applicant s third prayer in the Application for Judicial Review, 8
which includes the grant of an order releasing to the Applicant the Toyota Corolla Car with registration No. EF 259 EKY and one HP Laptop which are in the custody of the court below, clearly puts the interest of the party seeking to be joined in issue. The learned Counsel for the Applicant on the other hand had argued that this suit is primarily an application for judicial review aimed at quashing the proceedings of the 2 nd Respondent in Charge No. CR/65/2011 preferred against the Applicant by the 2 nd Respondent who is a judicial officer. Counsel argued that the party seeking to be joined is neither the judicial officer that entertained the criminal charge against the Applicant/Respondent nor a party to the criminal charge and Order 42 Rule 5(3) does not admit of any other party such as the party seeking to be joined who is not directly affected by the criminal charge now sought to be quashed. This suit is essentially an application for judicial review. By Order 42 Rule 5(3) of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004, the notice of the application shall be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel a court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in it, the notice or summons shall be served on the clerk or registrar of the Court and, where any objection to the conduct of the Judge is to be made, on the Judge. Indeed, in FEDERAL MILITARY GOVERNMENT v GOVERNOR MID- WESTERN STATE & ORS. (1973) LPELR-1269(SC) or (1973) 12 S.C. 19, the Supreme Court, per Elias, CJN, held at page 16, paras. D-F, that...it is settled law that certiorari lies to the High Court to quash the orders or the proceedings of an inferior tribunal which has acted in excess of its jurisdiction, and that 9
although the remedy was in early times limited to courts in the normal sense, it has since been extended to other authorities or bodies exercising judicial or quasi-judicial powers. See also: IN RE: LAWAL (2013) LPELR-19981(SC), Per Mohammed, JSC; NEBEDUM v LABISI & ANOR. (2000) LPELR-6840(CA) or (2001) 1 NWLR (Pt. 693)82, per Aderemi, JCA (as he then was) at page 15, paras. B-D; and OKWUSIDI v LADOKE AKINTOLA UNIVERSITY (2011) LPELR- 4057(CA), Per Modupe Fasanmi, JCA at pages 30-31, paras. F-D. In the instant suit, the application for judicial review is by reliefs 1 and 2 which I have reproduced above, essentially seeking to quash the charge and proceedings of the 2 nd Respondent in Charge No. CR/65/2011 and as such, the proper parties, apart from the parties to the criminal proceedings are the Senior Magistrate, Wuse Zone 6, Abuja whose proceedings is sought to be quashed and the Registrar of the Court. In its affidavit in support of joinder, the party seeking to be joined had averred in paragraph 6 that the Toyota Corolla Car and the HP Laptop have been in the custody of the Applicant before the commencement of the charge and proceedings now sought to be quashed, and it has also averred in paragraph 15 that the Applicant had by his own admission stated that he is not the owner of the car but is holding same as a lien. In addition, the party seeking to be joined has also averred in paragraph 14 of the supporting affidavit that the Applicant has even sued the party seeking to be joined as a Defendant in Suit No. FCT/HC/CV/39/2011 before Justice Jamilu Tukur Yammama of the FCT High Court No. 20 sitting in Apo. Thus, by the averments in the supporting affidavit, the party seeking to be joined has admitted that the status quo ante before the charge and proceedings now sought to be quashed was that the Applicant was in custody of the Toyota Corolla Car and the HP Laptop. 10
A look at Relief 3 which is relied upon by the party seeking to be joined to ground his joinder application, shows that it is contingent upon the grant of relief two, and Relief 3 therefore, only seeks to restore the Applicant to status quo ante before the commencement of the charge and proceedings sought to be quashed, which has already been admitted by the Applicant. In other words, by this joinder application the party seeking to be joined is rather attempting to extend the scope of this suit beyond that of judicial review to a contest over the possession of the vehicle which it had already admitted was in the possession of the Applicant before the commencement of the proceedings sought to be quashed in this suit. As rightly argued by the learned Counsel for the Applicant, the party seeking to be joined, who had stated that the Applicant had admitted that the party seeking to be joined is the owner of the Toyota Corolla Car and HP Laptop, but has been holding same as lien cannot seek to be joined in an application for judicial review which seeks to quash the charge and proceedings and maintain the status quo ante. Hence, relying on the scope of certiorari as enunciated in FEDERAL MILITARY GOVERNMENT v GOVERNOR MID- WESTERN STATE & ORS. (supra); IN RE: LAWAL (supra); NEBEDUM v LABISI & ANOR. (supra); and several other judicial decisions, I find that the party seeking to be joined has no direct interest in the instant case which only seeks to determine whether the 2 nd Respondent has exceeded his jurisdiction. As such I am of the view that this suit can be effectively determined without the joinder of the party seeking to be joined. The application for joinder therefore fails and it is accordingly hereby dismissed. HON. JUSTICE A. B. MOHAMMED JUDGE 11 TH JUNE, 2013. 11
Aruga: Court: In view of this Ruling, we shall be asking for a date for Ruling in the main application for judicial review which has already been moved. Case is adjourned to the 29 th of July, 2013 for Ruling. 12