Court lacks jurisdiction where plaintiff has no locus standi – Part 2

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

It was further argued that being a representative action, it is not only the Plaintiff of Defendant who are the parties, the others who are not named are also parties, relying on Mbanefo v.Molokwu (2014) 1-2 S.C. (Pt. II) 137. That even if the 1st Appellant and the other three Plaintiff had disengaged from the suit, the 2nd Appellant was still there to continue with the action, relying on Ndulue v. Ibezim (2000) 5 SCNJ 247 at 260; and Olufeagba v. Abdulraheem(2000) 12 (Pt. II) 1. He urge this court to resolved the two issues in favour of the Appellants.

The learned senior counsel for the 1st and 2nd Respondents, P.I.N Ikwueto, SAN, on the non-joinder of APGA submitted that the judgment of the learned trial court made against APGA, which was not a party to the suit and which had direct and massive impact on the activities of APGA, cannot be allowed to stand and that the court below was right to hold that the determination of the suit in the absence of APGA amounted to a gross violation of APGA entrenched right to fair hearing and thus palpably unconstitutional. It is his contention that neither National Officer will be imposed on APGA nor the Constitution of APGA interpreted without hearing from APGA. According to him, this is the hallmark of the principle of fair hearing.

Learned senior counsel further argued that by Session 80 of the Electoral Act, 2010 (as amended), APGA is a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name. Failure to join APGA, he opined, was fatal to Appellants’ case, relying on the case of: NDP v. INEC (2012) 12 S.C. (Pt. IV) 24. According to learned senior counsel, the case of: Azu v. UBN Plc. (supra) and LSBPC v. Purification Tech. Nig. (supra) cited and relied upon by the Appellants do not apply to this case. That each case is decided on its peculiar facts citing: Okafor v.Nnaife (1987) 9-11 S.C. (Reprint) 87 at 137 and Dongtoe v. CSC Plateau State (2001) 4 S.C. (Pt. II) 43 at 60

Finally on this, the learned senior counsel submitted that it is impracticable to question the action or conduce of principal officers or organs of a corporate entity such as APGA without making the corporate entity a party to the suit, relying on Olawoye v. Jimoh (2013) 3-4 S.C (Pt. IV) 59 and Oloride v. Oyebi (1984) 5 S.C. (Reprint) 1.

On the locus standi of the 1st Appellant, learned senior counsel submitted that in view of the fact that there is abundant evidence that the 1st Appellant was not a member of APGA on 10/2/11 when the 1st and 2nd Respondents were elected chairman and secretary of APGA, he had no locus to bring this action either in his personal capacity or even in a representative capacity. That having only return to APGA either in November, 2012 as shown in his membership card or “came back to APGA in February, 2013 or thereabout” as admitted by him, he had no locus to challenged actions of APGA is voluntary association and as such, the 1st Appellant who voluntarily joined APGA ought to be bound by the action of APGA before be joined it, relying on Mbanefo v. Molokwu (2014) 1-2 S.C. (Pt. II) 137.

On the contention of the Appellants that they never challenged the APGA Contention of 10/2//11, he submitted that both Issues 3 & 4 and reliefs 3, 7 and 8 were targeted at the APGA National Convention of February, 2011. That party ought to be consistent in the presentation of their case both at trial and on appeal, citing relying on: Ajide v. Kelani(1985) 11 S.C. (Reprint) 82, Osuji v. Eke-Ocha (2009) 6-7 S.C. (Pt.11) 91 and Kayode v. Odutola(2001) 5 S.C. (Pt. 11) 118. Learned senior counsel submitted that so long as the APGA National Convention of 10/2/11 took place prior to November, 2012” and/or “February, 2013 or thereabout”, the alleged dated of the 1st Appellant’s re-admission into the party, the 1st Appellant remained without locus standi to maintain this action.

Learned senior counsel further submitted that the issue relating to the 3rd Plaintiff being the sole Plaintiff since others had withdrawn was never raised at the trial court, nor was it an issue at the lower court. Thus, this being a fresh issue, leave ought to have been sought and obtained. Accordingly, failure to obtain leave is fatal to the issue, relying on the case of: Unor & Ors. V. Loko (1988) 5 S.C. (Reprint) 22; Fawehinmi Construction Co. Ltd. V. Obafemi Awolowo University (1988) 5 S.C. 43 at 57, Adake v. Akun (2003) 7 S.C. 26 at 30.

Finally on this issue, it was argued that when the other Plaintiffs filed notice of withdrew their affidavit/evidence in support of the originating summons. Thus, that there was no longer evidence to which the issues in the originating summons can be determined.

On the final leg of this issue, the learned senior counsel for the 1st and 2nd Respondent submitted that the court have no jurisdiction to interfere with the domestic/internal affairs such as the election of officers of a political party. That the learned counsel for the Appellants in paragraph 4.89 of their brief agreed with this position but went ahead to cite cases on nomination of candidate and Section 87(9) of the Electoral Act, 2010 (as amended) which does not apply in this case. He urged the court to resolve this issue in favour of the Respondents.

The is no doubt that the parties to this appeal, except the 6th Respondent are members of a political party called the All Progressive Grand Alliances, also known as APGA for short. I shall henceforth use the initial of the party in this judgment. It is also a fact that in this appeal in which the fortunes of the said party is being determined, it has not been made a party, neither was it so made at the court of trial or the lower court. I had set out earlier in this judgment both the question for determination and the relief sought by the Plaintiffs at the trial court (now Appellants). I need not repeat it here. One thing is clear, and that is, whether the issue before the trial court was a mere interpretation of the Constitution of APGA or the determination of the status of the 1st and 2nd Respondents vis-à-vis the National Convention of APGA held in 10/2//11, with due respect, APGA was a necessary party. I agree with the court below that the dispute between the parties is as to who, between the Appellants and the 1st -5th Respondents are the authentic National leaders of APGA. It becomes imperatives that APGA is a necessary party in the suit for the effectual determination of the suit as the party will be affected by the decision of the court however decided. I need to add that a necessary party id that person whose presence is essential for the effectual and complete determination of the issue before the court. It is a party in the absence of whom the whole claim cannot be effectually and completely determined.

Now, what is the effect of failure to join a necessary party? This matter was commenced at the Federal High Court and by Order 9 Rule 14 (1) & (3) of the Federal High Court (Civil Procedure) Rules 2009, it states: “14(1) No proceeding shall be defeated by reason of misjoinder or non-joiner of parties, and a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him. (3) A judge may order that the name of any party who ought to have been joined or whose presence before the court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceeding be added.”

From the above provision, it is clear that non joinder of a necessary party in a suit is an irregularity that does not affect the competence or jurisdiction of the court to adjudicate on the matter as regards the right and interest of the parties actually before the court. Also, that such non-joinder would not defeat the cause or matter.See: Leonard Okoye & Ors. v. Nigerian Construction & Furniture Co. Ltd. & Ors.(1997) 7 S.C. (Pt. III) 33, Laibru Ltd. v. Building & Civil Engineering Contractors (1962) 1 AII NLR 387, (1962) 2 SCNLR 118, Union Beverage Ltd.

However, while it is the law that no cause or matter shall be defeated by reason of the mis-joinder or non-joinder of any party, yet, in the absence of a proper party or necessary party before the court, it appears an exercise in futility for the court to make an order or decision which will affect a stranger to the suit who was never heard or given an opportunity to defend himself. This will certainly be against the tenets and tenor of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the instant case, there is no way the question posed by the Appellants for determination would be effectually and completely answered in the absence of APGA, the ultimate beneficiary of the outcome of the decision. Also, without AGPA as a party, the reliefs sought would not have any effect as APGA cannot be bound by an order of a court it was not a party. This is sadly the lot in this case. See: Olawoye v. Jimoh (2013) 3-4 S.C. 59.