IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY, THE 15TH DAY OF JANUARY, 2016
BEFORE THEIR LORDSHIPS

SULEIMAN GALADIMA                                                            JUSTICE, SUPREME COURT
JOHN I. OKORO                                                                          JUSTICE, SUPREME COURT
OLUKAYODE ARIWOOLA                                                        JUSTICE, SUPREME COURT
K.M.O. KEKERE-EKUN                                                             JUSTICE, SUPREME COURT
AMIRU SANUSI                                                                           JUSTICE, SUPREME COURT
SC. 565/2014

BETWEEN:

1. CHIEF MAXI OKWU
2. CHIEF DICKSON OGU………………………………..
APPELLANTS
(Suing for themselves and all other National Officers elected at the National Convention of APGA held at the Women Development Centre, Awka on the 8th day of April 2013)
AND
1. CHIEF VICTOR UMEH
2. ALHAJI SANI A. SHINKAFI………………. ………             RESPONDENTS
(For themselves and on behalf of The members of the National working Committee elected on the 18th day Of February, 2011 at the convention Held at the womenDevelopment centre, Awka, on the 8th day of April, 2013)

3. COMRADE IBRAHIM CAREFOR
4. DR. GBENGA AFENI
5. ALHAJI ABUBAKAR ADAMA
6. INDEPENDENT NATIONAL

ELECTORAL COMMISSION
The other issue has to do with the locus standiof the 1st Appellant herein to institute an action either for himself or on behalf of others. In Attorney General of Kaduna State v. Mallam Umaru Hassan (1985) NWLR (Pt. 8) 483, this court held that the legal concept of standing or locus standi is predicted on the assumption that no court is obliged to provide a remedy for a claim in which the Applicant has a remote, hypothetical or no interest. Thus where a Plaintiff by his pleading, fails to show that he has locusto institute an action, no issue in the case can be gone into, not even the question whether or not the statement of claim discloses a cause of action. As held in Nigeria Airways Ltd v. F. A. Lapite (1990) 11-12 S.C. 60, the only proper order to make in such circumstance is that striking out the suit. See also Iwuaba v. Nwaosigwelem (1989) 5 NWLR (Pt. 123) 623.

By Exhibit A,1st Appellant’s APGA membership card, he became a member of APGA in “November 2012, and by paragraph 8(n) of 1st Appellant’s further and better affidavit in support of originating summons he admitted that “by the time Chief Maxi Okwu came back to APGA in February 2013 or thereabout, his party, Citizens Popular Party has ceased to exist and it was eventually deregistered by INEC”. So whether he became member of APGA in November 2012 or in February 2013 or thereabout”, it is crystal clear that he was not a member of APGA as at10th February, 2011 when APGA held its National Convention which produced the 1st and 2nd Respondents as National Chairman and the National Secretary respectively. It was the view of the lowercourt that the 1stAppellant herein did not have locus standi to challenge the convention of APGA held on 10/2/2011 when at that time, he was not a member of APGA. I agree.

It is trite that when a Plaintiff has been found not to have the standing to sue or the locusstandi a in the instant case, the question whetherother issues in the case had been properly decided does not arise. This is because the trial court has no jurisdiction to entertain the claim. The correct position of the law therefore isthat where a Plaintiff is held to lack the locus standi to maintain his action, the finding goes to the jurisdiction of the court and denied it jurisdiction to determine the action. The proper order, in such a situation therefore, is to strike out the claim. See Herbert Ohuabunwa Emezi v. Akujobi David Osuagwu & Ors (2005) 2 S.C. (Pt. 11) 128.

The learned senior counsel of the Appellants had argued in paragraph 4.70 of their brief that: “Even if… the 1st Appellant does not have locus standi to bring the action, even if the 2nd 4th and 5th Plaintiffs had disengaged themselves from the suit, there is still Chief Dickson Ogu, the 3rd Plaintiff. He did not disengage from the suit and as such he has the locus standi to continue the case as the representing the other unnamed Plaintiffs”.

I find it hard to appreciate the above argument because that was not the case of the Appellants at the two courts below. Secondly, in a representative action, as in the instant case, common interest is a necessary ingredient tomaintain the action. Thus, when the 2nd, 4th and 5th Plaintiffs filed notices of discontinuance and unequivocally and wholly withdrew their claims in the suit, the element of the common/same issue. It follows that the 1st appellant not having been a member of APGA when the alleged cause of action arose, the 2nd, 4th and 5th Plaintiffs having discontinued the action, and in view of the fact that the evidence in support of the originating summons was joint affidavit of all the parties named and unnamed, the 2nd Appellant herein alone cannot validly continue to maintain the action in a representative action. See: Adefulu v. Oyesile (1989) 12 S.C. 43.

In the circumstances therefore, I hold that this appeal lacks merit and is hereby dismissed. I uphold the judgment of the Court of Appeal which set aside the judgment of the Federal High Court in Suit No: FHC/ABJ/CS/563/2013 of 15/1/2014. I award the cost of N100,000.00 in favour of the 1st and 2nd Respondents only.