HON. GODWIN ESHIESHI v. SULEIMAN ADBULMALIK AFEGBUA & ANOR (2014)

HON. GODWIN ESHIESHI v. SULEIMAN ADBULMALIK AFEGBUA & ANOR

(2014)LCN/7677(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of March, 2014

CA/B/238/2013

RATIO

APPEAL: PRELIMINARY OBJECTION; WHETHER PRELIMINARY OBJECTION MUST FIRST BE RESOLVED IN AN APPEAL IN WHICH THERE IS A PRELIMINARY OBJECTION CHALLENGING ITS COMPETENCE

The settled position of the law as it relates to an appeal, in which there is a preliminary objection challenging its competence, is that the said preliminary objection must first be resolved. This is because the main aim or objective of a preliminary objection to an appeal being that the appeal is fundamentally defective or incompetent; the appeal abates if the preliminary objection succeeds. See DANGANA V. USMAN (2013) 6 NWLR (Pt. 1349) 50 at 92; and NIDOCCO LTD V. GBAJABIAMILA (2013) 14 NWLR (Pt. 1374) 350 at 373. per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

ACTION: CAUSE OF ACTION; THE DEFINITION OF THE TERM “CAUSE OF ACTION”

Before Their Lordships

HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria

Between

HON. GODWIN ESHIESHIAppellant(s)

AND

1. SULEIMAN ADBULMALIK AFEGBUA
2. EDO STATE INDEPENDENT ELECTORAL COMMISSIONRespondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered on 28/5/2013 by the High Court of Edo State holden in Agenebode (hereafter simply referred to as ‘the lower court”) presided over by V.O.A. Oviawe, J; (hereafter simply referred to as “the learned trial Judge”). The lower Court in its ruling in question held that it had no jurisdiction to hear and determine the claims of the Appellant (as Claimant before it) and consequently struck out the Appellant’s case.

The Appellant commenced the instant action before the Lower Court against three Defendants by a writ which issued on 8/3/2013. The three Defendants in the case are: (i) the 1st Respondent herein as the 1st Defendant; (ii) Action Congress of Nigeria (hereafter simply referred to as “ACN”) as the 2nd Defendant; and (iii) the 2nd Respondent herein as the 3rd Defendant. A Statement of Claim dated 28/2/2013 was filed along with the writ. The case set up by the Appellant in the process is to the effect that he and the 1st Respondent are members of ACN which is a registered political party in Nigeria with a Secretariat in Benin. Both the Appellant and the 1st Respondent were also aspirants for the chairmanship position in Etsako East Local Government Council of Edo State, but after the screening undertaken by the State Screening Committee of ACN headed by Chief John Odige Oyegun, the 1st Respondent was found non-eligible or unqualified to contest the primary election of ACN held on 9/2/2013 in Etsako East Local Government Area. The Appellant claimed to have scored 5,901 votes and that he emerged as the winner and popular choice of ACN at the primary of ACN conducted on 9/2/2013 to nominate or select the chairmanship candidate of ACN for Etsako East Local Government Council of Edo State in the Local Government elections slated for 20/4/2013. That though the 1st Respondent still contested the primary election of ACN despite his non-qualification, he scored 1,145 votes while one Oba Peter Stephen, the third aspirant scored 78 votes. It is the case of the Appellant that despite the fact that he overwhelmingly won the primary election of ACN for the chairmanship position in Etsako East Local Government Council, the 1st Respondent began a desperate move to undermine the will and popular choice of the members of ACN in Etsako East Local Government Area to have the results of the primary election discarded and that ACN has indeed forwarded the name of the 1st Respondent who did not score the highest number of votes at the primary election in question, to the 2nd Respondent herein, in breach of the extant law on the subject. It is also the case of the Appellant that not only is ACN bound to forward his name to the 2nd Respondent as ACN’s chairmanship candidate for Etsako East Local Government Council, in the Local Government elections scheduled for 20/4/2013, but that the 1st Respondent has inherent tax problems which disqualify him from contesting the said Local Government elections scheduled for 20/4/2013 under the Edo State Local Government Law, 2012. In the premise of the facts averred in the Statement of Claim, the Appellant claimed against the three Defendants before the lower court jointly and severally as follows: –

“(a) A declaration that the Claimant having secured the highest number of votes at the 2nd Defendant’s primary election conducted in Etsako East Local Government area on 9th February, 2013 for the purpose of selecting the 2nd Defendant’s candidate for the Etsako East Local Government Chairmanship election fixed for 20th April, 2013, the Claimant has thereby emerged the chairmanship candidate of the 2nd Defendant for the said election and he is entitled to have his name forwarded to the 3rd Defendant as the 2nd Defendant’s chairmanship candidate for the aforesaid election.

(b) A declaration that the 1st Defendant having been disqualified from contesting the aforesaid election by the 2nd Defendant’s State Screening Committee for 2013 Local Government elections, 1st Defendant was not eligible to have participated in the 2nd Defendant’s aforesaid primary election held on 9th February, 2013 and all votes cast for him at the election are consequently null and void.

(c) A declaration that the 1st Defendant is not qualified to be presented by the 2nd Defendant to the 3rd Defendant as its chairmanship candidate for Etsako East Local Government election scheduled for Etsako East Local Government for 20th April, 2013 on the grounds already adumbrated above.

(d) A declaration that the purported submission of 1st Defendant’s name to the 3rd Defendant by the 2nd Defendant is a flagrant violation of Section 15(1)(d), 16(1)(b)(ii) and 23(2) of Edo State Local Government Electoral Law, 2012 and the regulations and guidelines issued thereunder for the Local Government elections, 2013 and consequently, invalid, null and void.

(e) A declaration that the Claimant remains the 2nd Defendant’s chairmanship candidate for Etsako East Local Government for the election scheduled for 20th April, 2013 in the eyes of the law governing the conduct of the said election.

(f) An order of injunction restraining the 3rd Defendant from recognizing the 1st Defendant or any other person other than the Claimant as the 2nd Defendant’s chairmanship candidate for the Etsako East Local Government for Edo State Local Government election scheduled for 20th April, 2013.”

The three Defendants before the Lower Court filed separate Statement of Defence. The Statement of Defence of the 1st Respondent herein is dated 10/4/2013 and can be found on pages 55 – 58 of the records. The case set up therein is to the effect that he is a member of ACN and that he was duly screened and cleared to contest the political party’s primary election conducted on 9/2/2013 to nominate the political party’s chairmanship candidate for Etsako East Local Government Council in the Local Government elections scheduled for 20/4/2013. That the primary election was conducted on 9/2/2013 by the appropriate body/organ of ACN charged with the responsibility of organizing the same under the constitution of ACN and he was declared as the winner of the said election and given a certificate of return in evidence of his victory. It is the case of the 1st Respondent that the Appellant having not scored the majority of votes cast at the duly authorized primary of ACN held on 9/2/2013, is not qualified to have his name forwarded to the 2nd Respondent herein as the chairmanship candidate of ACN for the Etsako East Local Government Council in the April 20, 2013 Local Government elections of Edo State. In his pleading, the 1st Respondent declared his intention to contend at the trial that the Lower Court lacked the jurisdiction try the instant case.

The Statement of Defence of the 2nd Defendant i.e. ACN dated 9/4/2013 is on pages 128 – 131 of the records. The case set up by the political party in its pleading in the main is that the 1st Respondent was screened and found eligible to contest the primary of the party conducted on 9/2/2013. That on 9/2/2013, the appropriate body/organ of the party, duly conducted the party’s primaries. And that the 1st Respondent won the said primary election as the political party’s candidate to contest the chairmanship position for Etsako East Local Government Council. That the 1st Respondent was issued with a certificate of return and his name consequently forwarded to the 2nd Respondent by or through a letter dated 18/2/2013, having been screened and cleared and having also won the primary. Like the 1st Respondent did, ACN in its pleading challenged the justiciabilty of the instant case and consequently the jurisdiction of the Lower Court to entertain the same. This was done in paragraph 17 of the pleading which reads thus: –
“At or before the hearing or trial, it shall be contended that this action is not justiciable and the court lacks the jurisdiction or vires to consider same because:
a. the Local Government Elections and intra party processes leading thereto are regulated by the Edo State Local Government Election Law 2012;

b. the said law does not contain any provision which permits judicial intervention at any stage;

c. all the authorities or case laws predicated on whichever version of the Electoral Act containing provisions which conferred jurisdiction on the High Courts to intervene on specific aspects of the process are inapplicable;

d. matters pertaining to nomination or selection and sponsorship of candidates to represent the 2nd Defendant party (ACN) at the on coming (sic) Local Government Elections belong to its domestic domain and are not justiciable thus robbing the court of the requisite jurisdiction to consider same.”

The Statement of Defence of the 2nd Respondent herein is dated 9/4/2013 and can be found on pages 172 – 173 of the records. Therein, this Respondent set out its functions under the Edo State Electoral Law, 2012 and claimed to have acted in accordance with the same in its interaction with ACN and that it had long completed the act of receiving the names of the nominees sent by ACN; screened, validated and recognized the same as candidates of ACN for the April 20, 2013 Local Government Elections for Edo State.

The Appellant filed a Reply to the 1st Respondent’s Statement of Defence. It is dated 16/4/2013.
The 2nd Defendant before the Lower Court, i.e. ACN as Applicant brought a motion dated 15/4/2013 and therein prayed for orders: –
“1. Setting down for hearing and determination the points of law raised in the following paragraphs of the Statement of Defence, to wit:
Paragraph 17(a) – (d) of the Statement of Defence of the 2nd Defendant.
2. Deeming as properly filed and served the Written Address in Support of the said paragraph 17 17(a) – (d) of the 2nd Defendant Statement of Defence, set down for hearing by this Honourable Court and attached to the supporting affidavit and marked as “Exhibit KEM 1″.”

The orders sought in the motion (supra) were granted on 17/4/2013. (See page 196 of the records). The lower Court apparently entertained the matter on 7/5/2013 with parties that filed and exchanged written addresses adopting the same and all the parties also making oral submission. The lower Court delivered its ruling on the points of law raised by ACN on 28/5/2013 and therein held that it has no jurisdiction to entertain the instant matter and consequently struck out the Appellant’s case.

Being aggrieved with the ruling of the lower Court, the Appellant lodged the instant appeal vide a Notice of Appeal dated 30/5/2013 and filed on the same date. The Notice of Appeal has the three Defendants before the lower Court as Respondents. The grounds of appeal and their respective particulars as contained in the Notice of Appeal read thus: –

“GROUNDS OF APPEAL
1) The learned trial Judge erred in law when he held that he had no jurisdiction to hear and determine the Appellant’s claim.
Particulars of error
a) The lower Court has jurisdiction to ensure that the provisions of the Edo State Local Government Electoral Law, 2012 are not breached.
b) The lower Court has the jurisdiction to ensure that the 1st Respondent was not nominated as a candidate contrary to the guideline contained in Edo State Local Government Electoral Law, 2012 and the electoral guidelines issued thereunder.
c) The lower Court has jurisdiction to examine and interpret relevant legislations and 2nd Respondent’s Constitution to see whether the 2nd Respondent (political party) complied fully with the legislation and its constitution on the issue of nomination.
2) The learned trial Judge erred in law when he held that notwithstanding the provisions of Sections 15(1)(d), 16(1)(ii), 23(2) and 24(3)(f) of the Edo State Local Government Electoral law, 2012, the trial court has no jurisdiction to hear and determine Appellant’s claim.
Particulars of error
a) The trial court hinged its decision on the fact that Edo State Local Government Electoral Law, 2012 has no provision similar to Section 87(9) of the Electoral Act 2010 (as amended)
b) The trial court failed to note the legislative intendment behind the above statutory provisions and give effect to it.
c) The lower Court failed to follow the admonition of the Supreme Court of Nigeria in Agbetoba & others v. Lagos State Executive Council (1991) 22 N.S.C.C (Part 11) 14 at 31 on construction of statutes.
d) The trial court did not give due cognizance to the mandatory nature of the above provisions of the Edo State local (sic) Government Electoral Law, 2012.”

The relief which the Appellant seeks from this Court as stated in the Notice of Appeal reads:-
“An order setting aside the ruling of the trial court made in Suit No. HAG/01/2013 on 28th May, 2013 and in its place, an order dismissing the 2nd Defendant’s/Respondent’s preliminary objection and remitting the case back to the Lower Court for determination on its merit.”

In accordance with the Court of Appeal Rules, 2011, the parties on record filed and exchanged Briefs of Argument. Appellant’s Brief of Argument is dated 22/11/2013 and filed on the same date pursuant to order of Court made on 18/11/2013. Appellant’s Reply Brief to the Brief of Argument of the 1st Respondent is dated 9/1/2014 and filed on 10/1/2014. Both Briefs of Argument were settled by K. O. Obamogie, Esq. Amended 1st Respondent’s Brief of Argument dated 6/12/2013 and filed on the same date was settled by S. K. Mokidi, Esq. 2nd Respondent’s Brief of Argument dated 9/1/2014 was filed on the same date but deemed as having been properly filed and served on 13/1/2014. The Brief of Argument in question was settled by Oluwole O. Iyamu, Esq. learned Solicitor-General of Edo State (hereafter to be simply referred to as “learned S. G.”) The appeal was entertained on 13/1/2014, however prior to the hearing of the appeal S. K. Mokidi, learned lead counsel for the 1st Respondent duly brought it to the notice of the Court that on 6/12/2013, he filed a Notice of Preliminary Objection challenging the competence of the appeal and that arguments in respect of the preliminary objection raised in the aforementioned Notice had been incorporated in the Brief of Argument of the said 1st Respondent. Later on, K. O. Obamogie, learned lead counsel for the Appellant; learned lead counsel for the 1st Respondent; and learned S. G. leading other Law Officers, respectively, adopted and relied on the Briefs of Argument of their clients as hereinbefore identified in aid of their different positions in the appeal.

Each of the parties in the appeal formulated a sole issue for the determination of the appeal in their Briefs of Argument. The issue formulated by the Appellant is “Whether the lower Court was right when it held that it had no jurisdiction to hear and determine the Appellant’s claim”. Aside from raising a preliminary objection to the appeal, the issue which the 1st Respondent formulated for the determination of the appeal on the merit, is “Whether from the state of pleadings and reliefs sought the lower Court was right to have held that it had no jurisdiction to hear and determine the Appellant’s claim”; while the issue formulated by the 2nd Respondent is “Whether the court below was right when it held that it lacked the jurisdiction to entertain the appellant’s claim as constituted?”

The Notice by the 1st Respondent of Intention to rely upon preliminary objection at the hearing of the instant appeal is dated 6/12/2013 and filed on the same date. The preliminary objection reads: “That this appeal is incompetent and should be struck out pursuant to Order 15 rule 3 of the Court of Appeal Rules 2011”. The grounds of the objection as set out in the Notice read thus: –
“1. That Action Congress of Nigeria is a necessary party in this appeal.

2. That on 18/11/2013 the name of Action Congress of Nigeria was struck out of this appeal on the ground that it no longer exists.

3. That the preliminary objection which culminated in this appeal was raised by Action Congress of Nigeria that is now defunct

4. That the Respondents and appellant herein were all respondents to the preliminary objection raised by Action Congress of Nigeria at the lower Court.

5. That the appeal is now a mere academic exercise in the absence of Action Congress of Nigeria.”

The arguments on the preliminary objection raised by the 1st Respondent are at paragraphs 3.00 – 4.09 on pages 6 – 8 of the Brief of Argument of the party. The 1st Respondent will hereafter be simply referred to as “the Objector” for the purposes of the preliminary objection under consideration. Learned counsel for the Objector having identified the only issue for determination in the preliminary objection to be “whether the defunct Action Congress of Nigeria is not a necessary party for the effectual and effective determination of this appeal”, in the main submitted that the said defunct ACN is a necessary party in this appeal and that the political party having been struck out as a party herein, the instant appeal ought to be struck out. Learned counsel for the Objector submitted to the effect that all the averments in the Statement of Claim save those in paragraphs 3 and 11A directly raise issues/allegations against ACN. Indeed, it was further submitted that all the reliefs claimed in paragraph 12 of the Statement of Claim, have direct bearing on ACN, Learned counsel contended that these made ACN a necessary party in the instant appeal. The cases of Green v. Green (1987) 3 NWLR (Pt. 61) 480, and Chief of Army Staff v. Lawal (2012) 10 NWLR (Pt. 1307) 62 at 70, were cited in respect of necessary parties. Learned counsel also submitted that the instant appeal and indeed the substantive case cannot be fairly and effectually decided without the defunct ACN having regard to the averments in paragraphs 4 – 12 of the Statement of Claim and as ACN was the objector before the lower Court, The case of Uzodinma v. Izunaso (2012) Vol. 211 LRCN, 153 at 188, was cited in aid. Again, learned counsel submitted that ACN is a necessary party in the instant appeal in the light of the position of the law that any judgment given with an order made against a necessary and desirable party behind his back will be to no avail and cannot be allowed to stand and cited the cases of NURTW v. RTEAN (2012) 10 NWLR (Pt. 1307) 170 at 187; and Kazeem v. Kola (2012) NWLR (Pt. 1282) 543 at 558 in aid. Again, it was submitted by learned counsel for the Objector that the absence of ACN in this case rendered the same not to be properly constituted for want of proper parties and that the lower Court cannot competently decide on the claims submitted for adjudication and the case of Ntekim v. Oron Local Government (2010) 16 NWLR (Pt 1219) 209 at 239 was cited in aid. Against the backdrop of all the submissions highlighted hereinbefore, it is the stance of learned counsel, that the instant appeal had become spent. That it has been rendered to be an academic exercise which a court does not embark upon in the process of adjudication and the cases of CPC V. INEC (2011) 18 NWLR (Pt. 1279) 493 at 559; and Plateau State v, A-G. Federation (2006) 3 NWLR (Pt. 967) 346 at 419, were cited in aid. Learned counsel also submitted that in deciding the instant appeal, reference has to be made to the Appellant’s Statement of Claim of which paragraphs 4 – 8; and 10 and 11 have direct bearing on ACN and that in the absence of ACN no evidence can be led on the said paragraphs. That it therefore follows that if this Court remits this case to the lower Court for adjudication there is nothing left of the Appellant’s case to activate the jurisdiction of the court if the aforesaid paragraphs are struck out. That a victory for the Appellant in this appeal will therefore not be of any utilitarian value to him particularly in the light of the reliefs claimed. In conclusion this Court was urged to uphold the preliminary objection and strike out this appeal pursuant to Order 15 rule (3) of the Rules of this Court (supra).

Learned counsel for the Appellant responded to the preliminary objection (supra) in the Appellant’s Reply Brief of Argument. It is the stance of learned counsel that the preliminary objection to the appeal is misconceived and completely devoid of merit. That the loss of legal personality by ACN in the course of this appeal cannot by any stretch of imagination have adverse effect on the instant appeal. That ACN cannot be a necessary party to the appeal when the political party has lost its legal personality and was struck out as a party in the appeal by this Court on 18/11/2013 on the ground that it had now become extinct. It is the stance of learned counsel for the Appellant that the reliefs being claimed in paragraph 12 of the Statement of Claim enure in his favour against the Respondents on record. That undoubtedly, the reliefs, if granted, would confer real and tangible benefits on the Appellant. Learned counsel submitted that the decision of the Supreme Court of Nigeria in Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30 cited by the Objector was quoted out of con. Similarly, it is the stance of learned counsel for the Appellant that the stance of the Objector that ACN ought to be heard in the appeal is utterly misconceived. That the Appellant who has appealed against a subsisting ruling of the Lower Court which is against him has the right to have that ruling reviewed by this Court and the death or extinction of ACN which is not the sole respondent in this appeal cannot in any way affect the right of the Appellant to have the said ruling reviewed by this Court and the case of Olufaegba v. Abdul-Raheem (2009) 18 NWLR (Pt. 1173) 384 at 431 – 432 was cited in aid. Reference was also made to Order 15 rule 3 of the Edo State High Court (Civil Procedure) Rules, 2012. It is also the stance of learned counsel for the Appellant that the submission that the instant appeal is now merely academic is utterly lacking in merit and devoid of any legal substance. Similarly, learned counsel submitted that the stance of the Objector that a victory in this appeal will not be of any utilitarian value to the Appellant lacks rational basis as judgment in favour of the Appellant can effectively be enforced against the 1st Respondent who was illegally given the ticket of the Appellant and also against the 2nd Respondent on record whose statutory duty it is to give effect to the judgment of the court.

Learned counsel said that the case of the Appellant before the Lower Court is that the Appellant won the primary election conducted by his party and that the name of the 1st Respondent was unlawfully forwarded to the 2nd Respondent. That this contention is reinforced by the pronouncement of the Supreme Court in Amaechi v INEC (2008) 5 NWLR (Pt. 1080) 227 to the effect that where a candidate who won a political party’s primary election is excluded or barred from contesting the election, he still remains the candidate in the eyes of the law and would be declared the winner of the election notwithstanding the fact that he did not contest the election. That the stance of the Objector that in the event of the success of this appeal, the Appellant cannot lead evidence on paragraphs 4 – 8; and 10 and 11 of the Statement of Claim because of the extinction of ACN is misconceived and untenable. This is because there is no rule of law or practice that prohibits the Appellant from leading evidence on facts pleaded in the paragraphs of the Statement of Claim in question and this Court was urged to discountenance the submission of the Objector to the contrary. In concluding the Appellant urged this Court to overrule the preliminary objection of the Objector as it is utterly lacking in merit.

In my considered view, the purport or implication of the preliminary objection under consideration is simply that the instant appeal is incompetent given the absence of ACN which is a necessary party as a Respondent in the appeal. Hence, the position of the Objector, that the defunct ACN is a necessary party in the appeal. Clearly, in resolving the preliminary objection before it, this Court must not be seen as remotely considering the correctness or otherwise of the ruling of the lower Court on the preliminary objection raised by ACN. This is however not to say that this Court is barred from looking into the Statement of Claim of the Appellant which was the basis of the points of law upon which the lower Court ruled, in order to appreciate the stand point of the Objector that the instant appeal against the ruling of the lower Court on the points of law raised by ACN, is incompetent given the absence of the said ACN which is a necessary party/respondent in the appeal. This is particularly so as the position of the law is that an appeal though a fresh suit is generally regarded as a continuation of the suit appealed against (i.e. the original suit) the nature and character of which cannot be changed on appeal. See NWAOGU V. ATUMA (No.1)(2013) 9 NWLR (Pt. 1358) 113 at 134.

I consider it appropriate to first observe that the 1999 Constitution of the Federal Republic of Nigeria (as amended) (and hereafter simply referred to as “the 1999 Constitution”) guarantees the system of local government by democratically elected local government councils. See Section 7(1) thereof. Section 197 of the 1999 Constitution further establishes Certain State Executive Bodies and one of the bodies is a State Independent Electoral Commission. The composition and powers of a State Independent Electoral Commission are as set out in Part II of the Third Schedule to the 1999 Constitution. One of the two powers of a State Independent Electoral Commission “is to organise, undertake and supervise all elections to local government council within the State”. The 2nd Respondent herein and which was the 3rd Defendant before the Lower Court is the State Electoral Commission of Edo State and it is not in dispute in the instant case that it is a creation of the Edo State Local Government Electoral Law 2012 and which law is also one enacted by the Edo State House of Assembly to regulate the conduct of Local Government Elections in Edo State.

The case of the Appellant as set up in the Statement of Claim has been elaborately narrated hereinbefore. The Appellant claims that he is the person whose name the ACN ought to have submitted or forwarded to the 2nd Respondent as ACN’s chairmanship candidate for Etsako East Local Government Council of Edo State in the Local Government elections which were slated for 20/4/2013. This is because he (Appellant) was the candidate who scored the highest number of votes at the primary of ACN held for the purpose of nominating the political party’s chairmanship candidate for Etsako East Local Government Council and not the 1st Respondent whose name ACN forwarded. Aside from alleging that the 1st Respondent was declared or found to be non-eligible to contest the primary of ACN by the Screening Committee of ACN, the Appellant also alleged that the said 1st Respondent in any event scored a lesser number of votes than his, in the primary of ACN in which the 1st Respondent participated despite his non-eligibility.

Given his case as set up in the Statement of Claim, the Appellant clearly does not depict himself as ventilating a personal right to the elective office of Chairman of Etsako East Local Government Council. Indeed, it would appear clear from the provisions of the Edo State Local Government Electoral Law, 2012, that the right to vie for an elective office in any or all of the Local Government Councils in the State belongs to political parties in as much as there is no provision allowing for “private candidate” or “private candidacy”.
See Section 15(1)(c) of the law (supra).

The term “Cause of Action” has been defined in a host of cases by the courts. Amongst others, the term has been stated to mean: “the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts which give rise to a right to sue and it consists of two elements, viz, the wrongful act of the defendant, which gives the plaintiff his cause of complaint; and consequent damages” – see ADESOKAN V. ADEGOROLU (1997) 3 NWLR (Pt. 493) 261. See also the case of YARE v. NATIONAL SALARIES WAGES AND INCOME COMMISSION (2013) LPELR – 20520 (SC) wherein Galadima, JSC; gave the simplest and ordinary meaning of the term cause action as (a) a cause of complaint; (b) a civil right and obligation fit for determination by a court of law; and (c) a dispute in respect of which a court of law is entitled to invoke it judicial powers. It would therefore appear glaring from the entire circumstances giving rise to the instant case as averred in the Appellant’s Statement of Claim and upon which he has predicated his claims or reliefs against ACN as well as the other two Respondents herein that the Appellant’s cause of action is actually against the ACN. It is the ACN which the Appellant claims to have the right to nominate a candidate for the chairmanship position of Etsako East Local Government Council in the Edo State Local Government elections slated for 20/4/2013 that has wrongfully nominated and forwarded the name of the 1st Respondent who has inherent tax issues and was not only unqualified to contest the ACN primary but did not score the highest number of votes at the primary of the said political party. It is clearly not the case of the Appellant that the 1st Respondent nominated himself and on his own forwarded his name to the 2nd Respondent herein. The fact that the Appellant’s cause of action is basically against the ACN is further underscored by the fact that it is only upon findings that ACN acted wrongly in relation the nomination of the 1st Respondent as its chairmanship candidate in the local government elections slated for 20/4/2013 that any or all the reliefs which the Appellant seeks in the instant action can be granted.

It is my considered view that it was in clear comprehension or conception of the Appellant’s cause of action that the ACN raised the points of law relating to the justiciabilty of the Appellant’s case as a whole; and not an issue of law that would have resulted in the said political party alone, being struck out as a party in the Appellant’s case and leaving the case to be continued against the other two Defendants (i.e. 1st and 2nd Respondents herein). The challenge of ACN to the justiciabilty of the Appellant’s case succeeded and the Appellant being aggrieved with the success of the challenge of ACN to the justiciabilty of his case which resulted in the striking out of the Appellant’s case appealed against the same but only for ACN to be struck out as a Respondent in the appeal as the political party had ceased to exist as such, prior to the hearing of the appeal.

The instant appeal is clearly against the ruling of the lower Court against the Appellant and in favour of ACN which raised the points of law that the Appellant’s action was not justiciable. lt is in my considered view obvious that given the nature of an appeal, the presence of ACN as a Respondent in an appeal brought by the Appellant for the purpose of reversing the decision of the lower Court in favour of ACN, is both dictated by common sense and the law to enable the said party defend its victory on the points of law which it raised and as a result of which the Appellant’s case was struck out. This is because the ACN would undoubtedly be affected with and/or by the outcome of the appeal. In this regard see Order 1 Rule 5 of the Rules of this Court (supra) wherein it is stated that “Respondent” in a civil appeal means, any party (other than the Appellant) directly affected by the appeal” and Order 6 Rule 2(1) wherein it is also provided amongst others to the effect that a Notice of Appeal shall contain the names and addresses of all parties directly affected by the appeal.
In my considered view, the requirement of the Rules of this Court (supra) that any party directly affected by an appeal shall be a respondent therein, not only recognise that necessary parties to an appeal must be before the Court but is in clear fulfillment of one of the tenets or principles of natural justice to wit: audi alteram partem – hear the other side and which has been given constitutional force by the fair hearing provisions in Section 36 of the 1999 Constitution.

It would appear that it was in appreciation of the position of the law as it relates to parties directly affected by the instant appeal and a fortiori necessary parties to an appeal, that the Appellant made ACN one of the Respondents in the appeal against the ruling in favour of the said ACN on the points of law that were brought by ACN and which terminated the Appellant’s case. In my considered view there could not have been any other party that qualified as a necessary Respondent in the instant appeal against the ruling on the points of law raised by the ACN and which points of law were decided in favour of ACN than the said ACN. See GASSOL V. TUTARE (2013) LPELR – 20232 (SC) wherein it was held amongst others that the blue litmus test for the determination of who may be a necessary party to a suit is predicated on whether the judgment will affect the party. In other words the Appellant by filing a Notice of Appeal in which ACN was a Respondent had the necessary or proper parties/Respondents before the Court for the purposes of having the appeal heard.

It is not in dispute that ACN was struck out as a Respondent in the instant appeal apparently as a result of the fact that the political party had ceased to exist. The Appellant in the knowledge that ACN had ceased to exist never applied to substitute a new party for the said ACN; neither did ACN itself or any of the other two Respondents in the appeal apply that any other party be substituted for ACN. This in my considered view might be a good strategy or tactic on the part of the other two Respondents in the appeal, but clearly not one that the Appellant ought to have allowed to persist or adopted as it were. This is because the Appellant by not taking advantage of the provisions of the Rules of this Court (supra) that allow for the substitution of a deceased party has amply demonstrated as it were, that whatever cause of action he had against ACN abated with the extinction of the said ACN.

The provision of Order 15 Rule 3 of the Rules of this Court (supra) upon which the Objector founded the preliminary objection under consideration eloquently provides that an appeal shall be struck off the hearing list by the Court where an appeal has been set down for hearing and the Court is or becomes aware that a necessary party to the appeal is dead.

It would appear that learned counsel for the Appellant in responding to the preliminary objection, did not avert his mind to the peculiar wordings of the provision of the Order 15 Rule 3 (supra). If he did, he would have seen that the fact of the existence of two other Respondents in the instant appeal is not sufficient to save the appeal from been struck out in the absence of a necessary party such as ACN in the appeal. And I am of the considered view that it has hereinbefore been sufficiently demonstrated that ACN without doubt, is a necessary or the most essential Respondent in the instant appeal given the case of the Appellant as set up in the Statement of Claim and as the instant appeal is against the ruling given in favour of ACN on the points of law it raised challenging the justiciability of the Appellant’s case. If learned counsel for the Appellant had appreciated this much, i.e. that ACN is a necessary Respondent in the instant appeal, and wanted the appeal entertained on the merit, another party that could defend the appeal in place of ACN which had ceased to exist as such ought to have been substituted for the said political party after it ceased to exist during the pendency of the instant appeal.

In the light of all that has been said, and as the Appellant never substituted another party for ACN, it is obvious that the preliminary objection of the 1st Respondent challenging the competence of the instant appeal for the absence a necessary party to wit: ACN is well grounded and must be upheld in the absence of any other party having been substituted for ACN. Accordingly, the preliminary objection of the 1st Respondent to the appeal succeeds.

I am aware that this Court as an intermediate appellate court can properly proceed to consider an appeal on the merit even where it has upheld a preliminary objection to the appeal. This course of action is to provide the Supreme Court with the views of this Court in the event the decision on the preliminary objection is found to be wrong. This is for the purpose of expediting the disposal of the matter. I however cannot find my way to doing this in the instant appeal. This is because to consider the appeal on the merit as it is presently constituted (i.e. in the absence of a necessary party as one of the Respondents) would glaringly result in not hearing all the necessary parties therein. No court should be seen as jettisoning the provisions of fair hearing for any reason whatsoever.

In the final analysis, and having found the preliminary objection of the 1st Respondent to succeed, the hearing of the instant appeal is abated and it is consequently struck off the hearing list of this Court pursuant to the provision of Order 15 Rule 3 of the Rules of this Court (supra).
Costs of N25,000.00 is awarded in favour of the 1st Respondent and against the Appellant.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by AYOBODE OLUJIMI LOKULO-SODIPE, JCA. My Lord gave a thorough consideration to all the points of law in issue and I am in complete agreement with His Lordship’s resolution of the preliminary objection to this appeal. I have to agree that since the ACN ceased to exist during the pendency of this appeal, it was incumbent on the appellant to substitute another live party with the same interests as the ACN who would defend the appeal. In the absence of the necessary party to defend the appeal, the parties being wrongly constituted, the rules of fair hearing being in real danger of being breached, the appeal cannot therefore be heard. The said appeal is struck out. The preliminary objection to the hearing of this appeal is upheld. Appeal is struck out pursuant to Order 15 Rule 3 of the Court of Appeal Rules 2011. I abide by the order as to costs.

TOM SHAIBU YAKUBU, J.C.A.: The draft of the judgment rendered and just delivered by my learned brother AYOBODE OLUJIMI LOKULO-SODIPE, JCA., was made available to me before now. I read it. I agree completely with the very lucid reasoning and conclusion by my Lord, that with the death of the Action Congress of Nigeria (ACN) as a necessary party – Respondent, to the appellant’s appeal and was consequently struck out; the appeal itself deserves following the path of ACN. That is, the appeal ought to be struck out.
I, strike it out accordingly. I abide by the order as to costs contained in the lead judgment.

Appearances

K. O. Obamogie with P. Y. Musa; S. E. Oyameida (Miss); and E. O. Ejeba (Miss)For Appellant

AND

S. K. Mokidi with E. D. Aronokhale for the 1st Respondent.
Oluwole Iyamu (Solicitor-General Edo State) with C. U. Ozua (Assist. Director); and M. O. Eruagea (State Counsel) for the 2nd Respondent.For Respondent

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