It is trite in law that no cause or matter shall be defeated by reason of the mis-joinder or non-joinder of a party.
Although a Court might typically have the jurisdiction to hear a suit, the absence of a proper or necessary party before the Court renders the entire suit an exercise in futility, as a Court cannot validly make an order or decision which will affect a stranger to the suit, who was never heard nor given an opportunity to defend himself. In the instant appeal, the Supreme Court dismissed the appeal and upheld the decision of the Court Appeal which set aside the judgment of the trial court on the ground that the trial court lacked the jurisdiction to have entertained the Appellants’ originating summons.
The 1st and 2nd Respondents were the National Chairman and National Secretary of the All Progressives Grand Alliance (“APGA”) from the year 2006. On the 1st day of December, 2010 the National Executive Committee of APGA held a meeting, where it was resolved that the tenure of the reconstituted members of the National Working Committee be renewed for another four years. At the national convention of APGA, which was held on the 10th day of February, 2011 a motion was passed, extending the Respondents’ tenure for another four years.
As at the 10th day of February, 2011 the 1st Appellant was not a member of APGA, having been expelled from the party in 2005. Upon his return to the party in February 2013, he was issued a new membership card, and subsequently elected as a member of the National Working Committee of APGA, during the national convention of APGA that was held on 8th April 2013.
Meanwhile, the Appellants who were not satisfied with the election of the 1st and 2nd Respondents conducted on 10th February, 2011, instituted an action at the Federal High Court, Abuja (the “trial court”) by way of originating summons seeking various declaratory reliefs. The 1st and 2nd Respondents filed a notice of preliminary objection challenging the jurisdiction of the trial court to entertain the suit. The learned trial judge in determining both the 1st and 2nd Respondents’ preliminary objection and the Appellants originating summons together, overruled the preliminary objection and granted the reliefs sought by the Appellants in the originating summons.
Dissatisfied with the decision of the trial court, the Respondents appealed to the Court of Appeal, Abuja (the “Court of Appeal”) which allowed the appeal and set aside the judgment of the trial court.
The Appellants, being dissatisfied with the judgment of the Court of Appeal, appealed to the Supreme Court, by its notice of appeal filed on 12th December, 2014. At the hearing of the appeal, all parties adopted their respective briefs of argument, save the 3rd – 5th Respondents, who failed to file any process and defend the appeal, although they were duly served with the court processes. In addition, the 6th Respondent in adopting its brief, opted to remain neutral and had nothing to urge the court.
The Appellants formulated the following issues for the determination of the appeal: (i) whether the Court of Appeal was right when it overruled the preliminary objection of the Appellants challenging in effect the validity of the appeal of the 1st & 2nd Respondents to the Court of Appeal; (ii) the effect of non-joinder of a party to an action particularly when the party not joined has not complained against such non joinder; (iii) whether the Court of Appeal was right when it held that the 1st Appellant did not have the locus standi to bring the action when (a) he had enough interest in the suit since he was claiming to be the duly elected National chairman of the party as against the 1st Respondent (b) the action was brought in a representative capacity and was not his personal action; (iv) whether the judgment of the Court of Appeal in the suit No. CA/E/84/2013 – UMEH v EJIKE decided any other thing apart from deciding that the plaintiff in that suit did not have locus standi to present the action and when none of the issues presented to the trial court and the Court of Appeal in this suit were decided in that appeal by the Court of Appeal Enugu Division; and (iv) whether the Court of Appeal appreciated the case of the parties as presented to it before arriving at its decision.
The 1st and 2nd Respondent, on their part, submitted the following issues for determination: (i) whether the Court of Appeal rightly dismissed the preliminary objection of the Appellants challenging the competence of some grounds of the 1st and 2nd Respondents’ appeal to the Court of Appeal; (ii) Whether the Court of Appeal rightly held that the trial court has no jurisdiction to determine the suit; and (iii) whether the Court of Appeal properly appreciated the case of the parties before arriving at its decision.
The Supreme Court decided to first resolve the Appellants’ issues two and three and the 1st and 2nd Respondents’ issue two, together since all three issues border on jurisdiction.
On the Appellant’s issue number two, the Appellants submitted that the non-joinder of necessary parties does not defeat an action and neither affects the potency of the action nor the jurisdiction of the court to determine the case as between the parties actually before the court. In support of this submission they relied on the following cases: AZUH v UBN PLC (2014) II NWLR (Pt. 1419) 580 at 610-611 and LSBPC v PURIFICATION TECH.
NIG. LTD (2013) 7 NWLR (Pt.1352) 82 at 109. The Appellants submitted further that the presence or absence of APGA did not affect the just and effectual resolution of the suit. It was their further submission that the 1st and 2nd Respondents do not have the legal vires to protest the non-inclusion of APGA as a party to the proceedings, as it is only APGA that can make such a complaint.
On their issue number three, the Appellants argued that it is unfortunate that the Court of Appeal held that since the 1st Appellant was not a member of APGA in 2010, when the 1st and 2nd Respondents were re-elected National Chairman and Secretary of APGA respectively, he lacked the locus standi to bring the action. They, thus argued that no one questioned the validity of the convention of 10 of February 2010 which produced the 1st and 2nd Respondent. They submitted that the questions which relate to the 2010 convention were whether the said convention satisfied Article 18(4) of the APGA constitution and whether a motion which produced the 1st and 2nd Respondents equate to an election of the National Executive Committee of the party. He argued that the 1st Appellant as plaintiff, has the locus standi to bring the action since he claims to be the authentic National Chairman of APGA which was pleaded by him in his pleadings. He relied on the case of BAKARE v AJOSE-ADEOGUN (2014) 6 NWLR (Pt. 1403) 320 at 351.
They further argued that being a representative action, it is not only the plaintiff or defendant that are the parties, as others who are not named are also parties, and therefore the fact that the 1st Appellant and three other Plaintiffs withdrew from the suit, does not preclude the 2nd Appellant from continuing with same. They relied on NDULE v IBEZIM (2000) 5 SCNJ 247. In conclusion they urged the Supreme Court to resolve the two issues in favour of the Appellants.
On issue two of the 1st and 2nd Respondents, which deals with the non-joinder of APGA, the 1st and 2nd Respondents submitted that the judgment of the trial court made against APGA, which was not a party to the suit and which had a direct and massive impact on the activities of APGA, could not be allowed to stand, and that, the Court of Appeal was right to hold that the determination of the suit in the absence of APGA amounted to a gross violation of APGA’s entrenched right to fair hearing and thus palpably unconstitutional. They further argued that by virtue of section 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. They relied on the case of NDP v. INEC (2013) 6 NWLR (Pt.1350) 392. It was their further submission that it is impracticable to question the actions or conducts of principal officers or organs of a corporate entity such as APGA, without making the corporate entity a party to the suit. They relied on the cases of OLAWOYE v JIMOH 13 NWLR (Pt.1371) 362 and OLONODE v OYEBI (1984) NSCC (vol. 15) 286 at 297.
On the locus standi of the 1st Appellant, they submitted that to the extent that, it is evident that the 1st Appellant was not a member of APGA as at 10th February 2011, when the 1st and 2nd Respondents were elected chairman and secretary of APGA respectively, the 1st Appellant had no locus to bring this action either in his personal capacity or even in a representative capacity. That having only returned to APGA 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 standi to challenge actions of APGA which took place in 2011.
On the Appellants’ contention that the APGA Convention of 10th February 2011 was never challenged, they submitted that both issues 3 & 4 and reliefs 3, 7 and 8 in the originating summons, were targeted at the APGA National Convention of February, 2011. They submitted that as long as the APGA National Convention took place prior to “November, 2012 and/or February, 2013 or thereabout”, being the dates of the 1st Appellant’s re-admission into the party, the 1st Appellant remained without the requisite legal standing to maintain the action.
They 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 Court of Appeal. Thus, being a fresh issue, leave ought to have been sought and obtained. They relied on the case of UOR & ORS v LOKO (1988) 2 NWLR (Pt. 77) 439. In conclusion, they urged the Court to resolve this issue in favour of the Respondents.
The Court’s Rationale and Judgment.
On the issue of jurisdiction, the Supreme Court held that although the trial court had jurisdiction to hear the suit as constituted, the judgment generated which had a massive impact on the activities of APGA, including its leadership, cannot be allowed to stand, in the absence of APGA as a party to the suit. The Supreme Court took the view that APGA was a necessary party to the suit and that although on the state of the authorities, an action is not defeated by the non-joinder of a party, the absence of APGA in the instant action, a necessary party, who was not afforded an opportunity of being heard, is against the tenor of section 36 of the Constitution and rendered the entire suit a nullity. In the words of the Supreme Court; “a plaintiff is not bound to sue a particular party. However, where the outcome of the suit will affect that party one way or the other, it will be fool hardy not to join him in the suit. It would in fact amount to an exercise in futility as the party will not be bound by the outcome of the case.”
On the issue of the locus standi of the 1st Appellant to institute the action either in his personal capacity or in a representative capacity, the Supreme Court observed that it is evident that the 1st Appellant was only readmitted into APGA sometime in November 2012 and was certainly not a member of APGA as at 10th February 2011, when APGA held the convention which produced the 1st and 2nd Respondents as National Chairman and National Secretary respectively. On the premise of this observation, the Supreme Court held that the 1st Appellant had no locus standi to challenge the election of the 1st and 2nd Respondents, which election occurred prior to his membership of APGA. The Supreme Court held further that, the 1st Appellant’s apparent lack of locus standi deprived the trial court of the jurisdiction to grant the reliefs sought by the Appellants in their originating summons.
In view of the foregoing, the court dismissed the appeal and upheld the judgment of the Court of Appeal which set aside the judgment of the trial court and awarded cost of 100,000.00 in favour of the 1st and 2nd Respondents only.
For the Appellants: G. S. Pwul, SAN with Oba Mudubuchi, Esq., Hello L, Ibrahim, Esq. Kenechukwu Maduka, Esq., V. M. G. Pwul, Esq., A. A. Nyam, (Miss), Adewale Odeleye, Esq, Oluwatosin Odeleye, (Miss) and P.E. Okoife, Esq.
For the 1st and 2nd Respondents: P. I. N Ikwueto, SAN with G. I Mbaer, Esq., Isaiah Bozimo, Esq., C. Ogbuefi, Esq., and N. Odumegwn.
Rahimatu Aminu (Mrs.) for the 6th Respondent.
By: Afun Adenike Adedolapo, Aluko & Oyebode, Lagos.
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