HON. ENGINEER KUBE AKILA DWANA v. HON. ISMAILA IBRAHIM & ORS (2014)

HON. ENGINEER KUBE AKILA DWANA v. HON. ISMAILA IBRAHIM & ORS

(2014)LCN/7675(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of March, 2014

CA/YL/271/2010

RATIO

COURT: JURISDICTION; WHETHER IT IS ONLY WHERE PROPER PARTIES ARE BEFORE THE COURT THAT THE COURT HAS JURISDICTION

However, it is trite law that, it is only where proper parties, (amongst other pre-conditions to the exercise of jurisdiction), are before a court, that a court is competent to adjudicate on matters presented to it. A court has no jurisdiction to make an order which affects the interest of a person who has not been joined as a party to the suit. See Okonta V Phillips (2010) 12 SCNJ 343 @ 347, per Adekeye, JSC; Elegushi V Oseni (2005) 7 SCNJ 416.
The fundamental reason which makes it necessary to make a person a party to an action is to make him bound by the result of the action. Therefore, in determining who a necessary party is, what a court must consider is, whether the question in the action cannot be effectually and completely settled unless the person is made a party. See Awoniyi V The Registered Trustees of Rosicrucian Order (AMORC) (2000) 10 NWLR (Pt.676) 522 @ 540; Green V Green (1987) 3 NWLR (Pt.61) 480. It is a basic principle that a Judgment given with an order against a person, who ought to be a party but was not duly joined, is to no avail. It cannot be allowed to stand. See Cotecna International Ltd V Churchgate Nig Ltd (2010) 12 SCNJ 418, per Fabiyi, JSC, @ 447; Uku V Okumagba (1974) 1 ALL NLR 475.
Thus, in order for a court to be competent and to have jurisdiction over an action, proper parties must firstly be identified. The parties to an action must be shown to be the proper parties to whom rights and obligations, arising from the cause of action, attach. This question of proper parties is a very important issue which affects the jurisdiction of a court, as it goes to the foundation of the suit in limine. Consequently, it cannot simply be dismissed with a wave of the hand, as it is an issue which is critical to the competence of any suit. Where the proper parties are not before a court, the court lacks jurisdiction to hear the suit. And where a court purports to exercise jurisdiction which it does not have, the proceedings before it, as well as its judgment, will amount to a nullity, no matter how well decided. See Madukolu V Nkemdilim (1962) ALL NLR 578. per. JUMMAI HANNATU SANKEY, J.C.A.

PRACTICE AND PROCEDURE: PARTIES TO A PROCEEDINGS; WHAT MAKES A PARTY A NECESSARY PARTY AND THE DUTY OF A PLAINTIFF TO JOIN ALL PARTIES PARTIES WHOSE PRESENCE IS CRUCIAL TO THE RESOLUTION OF THE SUIT AND REQUIRED FOR THE INVOCATION OF THE POWER OF THE COURT

Thus, the question is: what makes a party a necessary party? The raison d’etre which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled. Therefore, there must be a question in the suit which cannot be effectually and completely settled unless such a person is a party. See Bello V INEC (2010) 3 SCNJ 127, per Oguntade, JSC, @ 162; Mobil Producing Nig. Ltd V Lagos State Environmental Protection Agency (2002) 12 SCNJ 1. Thus, a necessary party is undoubtedly a person, in whose absence, issues in controversy cannot be decided. See Union Beverages Ltd V Pepsicola International Ltd (1994) 2 SCNJ 157. Furthermore, it is the duty of a plaintiff to join all necessary parties whose presence is crucial to the resolution of the suit and required for the invocation of the power of the court. See Adisa V Oyinwola (2000) 6 SCNJ 290. The effect of a non-joinder of a necessary party is that the action is not properly constituted and is liable to be struck out. See Awoniyi V The Registered Trustees of the Rosicrucian Order (AMORC) (2006) 6 SCNJ 141. per. JUMMAI HANNATU SANKEY, J.C.A.

COURT: ACADEMIC ISSUES; WHETHER THE COURT IS NOT ESTABLISHED TO DEAL WITH HYPOTHETICAL AND ACADEMIC ISSUES

I say it is academic because its determination one way or the other cannot add or detract from the decision on the Appellant’s Appeal. It is trite that courts of law are not established to deal with hypothetical and academic issues. Rather, they are established to deal with matters actually in contention between the parties. See Yusuf V Toluhi (2008) 6 SCNJ 37; Olori Motors Co. Ltd V UBN Plc (2006) 4 SCNJ 1; Okotie-Eboh V Manager (2004) 12 SCNJ 139; Anya V Imo Concorde Hotels Ltd (2002) 12 SCNJ 145; Global Transport Oceanico SA V Free Enterprise Nig. Ltd (2001) 2 SCNJ 224; & IBWA Ltd V Pavex International Co. (Nig.) Ltd (2000) 4 SCNJ 200. per. JUMMAI HANNATU SANKEY, J.C.A.

Before Their Lordships

JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEYJustice of The Court of Appeal of Nigeria

ADAMU JAUROJustice of The Court of Appeal of Nigeria

Between

HON. ENGINEER KUBE AKILA DWANAAppellant(s)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is predicated on the Ruling of the Adamawa State High Court in Suit No. ADSN/6/2010 delivered on the 21st day of July, 2010. Therein, Nathan Musa, J., the learned trial Judge, struck out the suit of the Plaintiff, (now Appellant), on the ground that the action of the Plaintiff was incompetent due to the non-joinder of Guyuk Local Government as a party to the suit.

Troubled by that decision, the Plaintiff through his erstwhile Counsel, A.B Panyi Esq., filed an Appeal on the 26-07-10 challenging the decision on nine Grounds. Subsequently, the Plaintiff, through his newly engaged Counsel, Innocent Daa’gba, Esq., vide a motion on notice, filed on the 05-05-11, sought and obtained leave of this Court to amend the original Notice of Appeal. The Amended Notice of Appeal was thus filed on the 08-07-11, wherein the Grounds of Appeal were reduced to five.

By way of a brief background of the facts – the Plaintiff, at the Lower Court, commenced his suit via an Originating Summons filed on 24-03-10 against the Respondents herein as Defendants, challenging the propriety or otherwise of his removal from office as the elected Chairman of Guyuk Local Government Council of Adamawa State. He prayed the High Court to declare as illegal, unconstitutional, null and void the action of the Defendants and sought for re-instatement and the payment of the entitlements due to him as Chairman.

Upon being served the Plaintiff’s processes, the Defendants, through their various Counsel, filed two sets of preliminary objections challenging the competence of the Plaintiff’s suit and prayed the Court to strike out or dismiss same. The objections of the Defendants were predicated on two main planks, to wit:

a) Abuse of court process
b) Non-joinder of a necessary party.

Both objections were taken together, and learned Counsel marshalled their arguments thereto. Thereafter, on 21-07-10, the Lower Court sustained the objection on the second ground only, and so struck out the Plaintiff’s suit on the second ground of objection, which is that Guyuk Local Government was a necessary party to the suit and its non-joinder rendered the suit incompetent.

Arising from the amended Grounds of Appeal, learned Counsel for the Appellants, the 1st-12th Respondents, as well as the 13th Respondent distilled two issues each for determination, which issues are virtually identical in content. Since I consider the issues formulated by the 1st-12 Respondents as more apposite, I adopt them in addressing this Appeal. The issues are:

1. Whether Guyuk Local Government Council was a necessary party, the non-joinder of which rendered the action incompetent.

2. Whether, having held that Guyuk Local Government Council was a necessary party, the Lower Court suo motu should have made an order for its joinder to save the action.

Under the first issue, learned Counsel for the Appellant submits that, by Section 6 of the Adamawa State Local Government System Establishment and Administration Law, No. 4 of 2000, (as amended), Guyuk Local Government is a different entity from Guyuk Local Government Legislative Council. He makes further reference to Sections 40 (1) (2); & 3 and 37 (1) of the same law to reinforce his point that there is a clear distinction between a Local Government Area simpliciter and a Local Government Legislative Council.

Counsel argues that the action commenced in the Originating Summons is predicated on the actions of the 1st-11th Defendants/Respondents who are legally constituted as members of the Guyuk Local Government Legislative Council and who acted as such when they impeached the Appellant, contrary to the provisions of Section 20 of the Adamawa State Local Government Law, No. 4 of 2000. He submits that that the Council is a body distinct from Guyuk Local Government.

Counsel further submits that the 15 reliefs sought by the Appellant in his Originating Summons are against the Respondents before the Court and argues that all the questions raised therein can be settled effectively without the joinder of Guyuk Local Government. It is his submission that the learned trial Judge came to the erroneous conclusion that Guyuk Local Government Council is a necessary and desirable party because, the Notice of impeachment, Exhibit Kube 1, the Reply of the Appellant to the said Notice of impeachment, Exhibit Kube 3, and the Letter of impeachment, Exhibit Kube 4, all bear the letter-head of Guyuk Local Government Legislative Council. He therefore found that this fact made Guyuk Local Government a necessary and a desirable party, as the 1st-10th Respondents were acting as agents of Guyuk Local Government Council.

Counsel further submits that the law is trite that a Plaintiff who complains that he has a cause of action against a particular person should be allowed to pursue his remedy against that defendant alone. He should not be compelled to sue or do battle with persons against whom he alleges no injuria, no legal wrong, or against whom he has no quarrel and does not wish to sue. He argues that a party cannot be forced or compelled to sue another party against whom he has no claim. He relies on Ogele V Saliu (2006) ALL FWLR (Pt. 328) 796 @ 804, para F-H.
Counsel contends that the grievance of the Appellant is against the 1st-12th Respondents, as allegedly reflected in the questions for determination and the reliefs sought in the Originating Summons. He submits that all the questions/issues raised at the trial Court can be effectively and completely determined without the joinder of Guyuk Local Government.

In the alternative, Counsel submits that, assuming without conceding, that Guyuk Local Government is a necessary and/or desirable party, the failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. For this, he relies on Udo V Cross Rivers State Newspaper Corporation (2002) FWLR (Pt. 104) 665@703, paras A-B.

Yet again, learned Counsel submits that, assuming but not conceding that some of the reliefs will indirectly affect the interest of Guyuk Local Government, the trial Court should have gone ahead to deal with the reliefs which are directly against the 1st-13th Respondents who are necessary, proper and desirable parties.

Counsel submits that a necessary party to an action is a party without which the action cannot be effectually and completely settled unless he is made a party; in other words, a party whose participation in a proceeding is indispensable. He relies on Jokolo V Governor, Kebbi State (2000) 11 NWLR (Pt. 1152) 394@425, para E-F. He contends that the Appellant’s suit before the Lower Court can be determined effectively without joining Guyuk Local Government, as none of the reliefs of the Appellant is directed against the Local Government.

In addition, learned Counsel argues that, if the provisions of Order 11 Rules 3 and 5 of the Adamawa State High Court (Civil Procedure) Rules, Cap 63 Laws of Adamawa State, 1997 (Vol. 2) had been read into the Appellant’s suit by the Lower Court with regards to the question of the effect of joinder or non-joinder of Guyuk Local Government, the Appellant’s suit could have been saved. Reliance is again placed on Jokolo V Governor, Kebbi State (2009) 11 NWLR (Pt.1152) 394 @ 429, para D-12.

Counsel finally submits that Guyuk Local Government is not a necessary party to the Appellant’s suit at the Court below and that its non-joinder ought not to have defeated the Appellant’s case. He thus urged the Court to uphold his arguments on this issue and to allow the Appeal.

On his part, learned Counsel for the 1st-12th Respondents submits that, before the commencement of the action, an earlier action filed by the Appellant against the Guyuk Local Government Council and 3 others was struck out on a preliminary objection on the ground that the Appellant did not give the Guyuk Local Government a pre-action notice. After the earlier action was struck out, the Appellant immediately issued Guyuk Local Government Council a pre-action notice of intention to commence legal action against it. He thereafter instituted the present action challenging his impeachment as Chairman of the Local Government Council, but strangely, without joining Guyuk Local Government Council, to which he had given notice.

Counsel submits that a necessary party means a party who will be affected by the outcome of the action, and whose joinder becomes necessary for a just determination of the action. He relies on Buhari V Yusuf (2003) 14 NWLR (Pt.841), 446 @ 519; Mozie V Mbamaju (2006) 15 NWLR (Pt. 1003), 466 @ 515; Busch V Goodwill (2004) 8 NWLR (Pt.874), 205 para B-C; Jimoh V Rex Kolawale (2003) 10 NWLR (Pt. 828), 307, para B-G; Maikori V Lere (1992) 3 NWLR 525. On the strength of these authorities, Counsel submits that a party would qualify as a necessary party:

I. When the matters complained of or the cause of action relate to his actions.
II. When the reliefs claimed, if granted, would affect his interest.

Counsel submits that the Appellant’s attempt to draw a distinction between the individual Councillors who had acted in their official capacities and the Guyuk Local Government Council is completely erroneous. He argues that Guyuk Local Government Council, from the facts stated in the Originating Summons, was a disclosed principal. He argues that liability cannot attach to the Councillors for acts done by them in their official capacities. It attaches to the Local Government Council, the disclosed principal, whose non-joinder, he argues, rendered the action incompetent. He relies on Esang V Aureol Plastic Ltd (2002) FWLR (Pt.129) 1471.

“The Latin maxim ‘Qui facit per allium facit per se ipsam facere vindetur’ means he who does an act through another is deemed in law to do it himself’. Where therefore the principal of an agent is known or disclosed the correct party to sue or be sued for anything done or omitted to be done by the agent is the principal.

Counsel thus submits that the Lower Court rightly struck out the action for non-joinder of a necessary party relying on Jimoh V Okwoge (supra) which held thus:

“A Local Government is a necessary and desirable party in an action filed by its chairman to challenge in the main, his suspension from office by members of the local Government Legislative Council… In the instance case, the Ifelodun Local Government ought to have been joined in the respondents’ such as a necessary and desirable party, particularly as the 2nd & 3rd appellants did not act in their personal capacities when they signed the letter by which the Respondent was notified of his suspension from the office of Chairman of the Local Government and of the appointment of his Vice Chairman as acting chairman of the Local Government. The respondent reliefs are against the Local Government and not the individuals who clearly acted on its behalf”

In answer to the Appellant’s submissions that Guyuk Local Government, Guyuk Local Government Council and Guyuk Local Government Legislative Council, (of which the 1st – 11th Respondent were members), are different legal personalities, Counsel submits that this submission is erroneous. He refers to Section 7(1) 1999 Constitution of Nigeria, (as amended).

Counsel further submits that the reliefs in the action are directed against the Guyuk Local Government Council, whose Legislative Council members impeached the Appellant. He argues that, contrary to the submissions of the Appellant, the suit cannot be effectively determined without joining Guyuk Local Government because, by the authorities of Esang V Aureol Plastic Ltd (Supra); & Jimoh Okwoge (supra):

(a) any action or relief against the elected councillors of the Local Government Council, brought pursuant to the performance of their legislative functions or duties, is directed against the Local Government Council itself;

(b) The entire action related to the office of chairman, (the executive arm), of the Guyuk Local Government Council;

(c) The affidavit in support of the Originating Summons contained grave allegations of facts concerning the Guyuk Local Government Council. (See page 62 – 68 records of proceedings);

(d) The notice of Impeachment exhibited to the said affidavit contained alleged offences committed by the Appellant in relation to the performance of his duties as Chairman of Guyuk Local Government Council and not as Chairman of the ten (10) Council members, (1st-11th Respondents);

(e) Reliefs No. I, II, V, X, XII in the Originating Summons directly affect the Local Government Council. Relief number X in particular would affect the finances of the Local Government. The Guyuk Local Government is entitled to be heard on those reliefs. He relies on Section 36(1) Constitution Federal Republic of Nigeria 1999, (as amended).

Counsel hence submits that the Lower Court was right when it struck out Appellant’s Originating Summons for non-joinder of a necessary party as both the cause of action and the reliefs sought were bound to affect the interest of Guyuk Local Government Council.

Furthermore, Counsel submits that the non-joinder of a necessary party is not excusable simply because some other necessary parties have been sued. He argues that all parties who will be affected one way or the other must be made parties. Reliance is placed on Obasanjo V Ewetuga (1993) 4 NWLR (Pt. 288), 445; Awoniyi V Rosicrucian 2 SCNQR, where Uthman Mohammed, JSC, held:-

“It is trite that parties against who complaints are made in an action must be made parties to such action… it is an elementary procedure in prosecuting civil claims that all necessary parties for the invocation of the judicial powers of the Court must come before it so as to give the Court jurisdiction to grant the reliefs sought…” Okorocha V Uba Plc [2011] 1 NWLR (Pt.122 )8, 348 R.16; Sule V Habu [2011] 7 NWLR (Pt.1246), 339 R.5.

Learned Counsel for the 13th Respondent, on his part, also submits that Guyuk Local Government Council is necessary party to this suit. He argues that the necessary party is a person or party that will be affected by the outcome of the decision, and whose joinder becomes necessary for a just determination of the action. He relies on Mozie V Mbamalu (2006) ALL FWLR (Pt.341) SC 1200 @ 1232, para G; & Buhari V Yusuf (2003) ALL FWLR (Pt.174) SC 329, 372, paras A-E.

He contends that Reliefs 7, 8, 9 and 10 the Originating Summons directly relates to Guyuk Local Government Council, and that the present set of Respondents, i.e. 1st-13th Respondents, cannot be in a position to comply with the said reliefs, hence Guyuk Local Government Council is a necessary party. He relies on Attorney-General, Lagos State V Attorney-General Federation Republic of Nigeria (2004) 18 NWLR (Pt.904) 1.

Counsel further submits that it is an obligation on the part of the Appellant to sue such a necessary party so as to allow the Court to effectively determine the issue before it, as judicially stated in the case of Yusuf V Adeyemi (2009) 15 NWLR (Pt. 1165) 616. He submits that the net effect of a situation in which a suit is not properly constituted, is that the issue becomes a jurisdictional question and can be raised by a party at any stage of the proceedings. He relies on Mozie V Mbamalu (supra) 1232, paras G-H.

Counsel finally submits that the trial Court was right when it struck out the action because the Respondents, as presently constituted, cannot and do not have the legal capacity to defend the suit, in light of Reliefs 7, 8, 9 and 10 of the Appellant Originating Summons. He relies on Jimoh V Olawoye (2003) 10 NWLR (Pt.828) 108.

FINDINGS

In general, Judges are very reluctant to close the portals to their hallowed Temples of justice to seekers of redress to both real and perceived wrongs. This is because the tenor and spirit of the 1999 Constitution, (as amended), is that all actions, executive, legislative, judicial, social, human, and in other areas of human endeavour imaginable, are subject to judicial review and/or examination in an effort to achieve the fundamental objectives and peaceful living in the Country.

Where the proper parties are not before a court, the court lacks jurisdiction to hear the suit. And where a court purports to exercise jurisdiction which it does not have, the proceedings before it, as well as its judgment, will amount to a nullity, no matter how well decided. See Madukolu V Nkemdilim (1962) ALL NLR 578.

Furthermore, it is the duty of a plaintiff to join all necessary parties whose presence is crucial to the resolution of the suit and required for the invocation of the power of the court. See Adisa V Oyinwola (2000) 6 SCNJ 290. The effect of a non-joinder of a necessary party is that the action is not properly constituted and is liable to be struck out. See Awoniyi V The Registered Trustees of the Rosicrucian Order (AMORC) (2006) 6 SCNJ 141.

In order to determine whether or not Guyuk Local Government is a necessary party, the first place to look is the initiating processes of the suit before the Lower Court which set out both the claim and the reliefs which the Plaintiff seeks. In this case, this is the Originating Summons contained at pages 55-61 of the printed Record of Appeal.

I have given a thorough and methodical examination of this document and it is my considered view that certain reliefs number v, vii, viii, ix, x, xi, xii & xv have a direct bearing on and are reliefs sought against Guyuk Local Government. There is, incontrovertibly, overwhelming affidavit evidence before the Lower Court to indicate that the issue of the impeachment of the Appellant could not have been effectually and completely settled without joining Guyuk Local Government. Without joining it, Guyuk Local Government is shut out of being given a fair hearing before orders are made which would be bound to affect it, and by which it would be ultimately bound.

Thus, no court worth its salt would proceed in an action and grant reliefs against a party who was not before it and who, as a result, would not be given an opportunity to be heard before the matter is determined and orders are given which would clearly affect its interests. Such would undoubtedly go against the grain of the first principle of natural justice, audi alterem partem, as encapsulated in Section 36 (1) of the 1999 Constitution.

As a result, due, principally, to the reliefs sought in the Originating Summons, I am of the firm view that the Appellant is a necessary party who should have been joined in order to enable the Lower Court to effectually and completely adjudicate or settle all questions in the cause, in particular, the question touching on who, amongst the Appellant and the 12th Respondent, is the actual Chairman of Guyuk Local Government. See Ayorinde V Oni (2000) 3 NWLR (Pt. 649) 348.

Before I conclude, the Appellant has sought to make a distinction between Guyuk Local Government, Guyuk Local Government Council and Guyuk Local Government Legislative Council. He has made heavy weather of the provisions of the Adamawa State Local Government System, Establishment & Administration of Local Government Councils Law, No. 4 of 2000, which he contends, makes them different entities. I have therefore examined the said Law vis a vis the relevant provisions of the 1999 Constitution relating to Local Governments created by it. I am in complete agreement with learned Counsel for the 1st-12th Respondents that a proper resolution of this issue lies in a resort to the constitutional provision which creates Local Governments.

Section 7 (1) of the 1999 Constitution, (as amended), which states:
“The system of Local Government by democratically elected Local Government Council is under this Constitution guaranteed, and accordingly the Government of every State shall, subject to section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance, and functions of such Councils.”
(Underlining supplied for emphasis)

Sections 3 (1), 5, and 13 the Local Government Law, Cap 80, Laws of Adamawa State, 1997 provide thus:
“3. – (1) There are hereby established by the State Government, Local Governments to be known by the names in Column A, the respective areas of which shall be those Districts named in Column B and the capitals of which shall be those respectively named in Column C of the Schedule to this Law.

5. Every Local Government established under this Law shall be a body corporate by the name designated in the Instrument establishing such Local Government and shall have perpetual succession and a common seal and power to acquire and hold land and to sue or be sued.

13. – (1) For every Local Government there shall be a Council which shall be composed of:-
(a) elected members; and
(b) Where the provisions of the instrument relating to the Council so provide, nominated members.”
(Underlining supplied for emphasis)

Finally, Sections 3 (1), 6, 15, 26, 35 (1), 37 (1), and 40 (1) (2) of the Local Government System, Establishment and Administration of Local Government Councils Law, No. 4 of 2000 provides as follows:

“3. (1) There shall be 21 Local Government Areas in the State as specified in the Constitution of the Federal Republic of Nigeria, 1999.

6. There shall be a Local Government Council (in this Law referred to as “the Council”) for each Local Government Area of the State and the Council shall consist of Councillors elected from every ward in the Local Government.

15. There shall be for each Local Government Council, a Chairman and a Vice Chairman.

26. (1) There shall be a Secretary to the Local Government who shall be appointed by the Chairman of the Local Government subject to the approval of the Legislative Council of the Local Government.

35. – (1) Subject to the provisions of this Law, the executive powers of a Local Government shall be vested in the Chairman of the Local Government.

37. (1) The Chairman of a Local Government may attend a meeting of a Local Government Council either to deliver an address on the affairs of the Local Government or to make such statement on the policy of the Local Government as he may consider to be of importance to the Local Government.

40. (1) The Council is declared to be the legislature of a Local Government Area.

(2) Pursuant to Sub-section (1) of this Section the Council shall exercise legislative powers in the Local Government Area.
(Underlining supplied for emphasis)

The above provisions are very clear as to the status of Guyuk Local Government, vis a vis the Local Government Council. Consequently, by Section 6 of the 1999 Constitution, a Local Government is a system, while by the Adamawa State Law, Cap 80 of 1997, the Local Government is the legal entity or personality that can sue and be sued. By this latter Law, the Local Government Legislative Council is not clothed with any life of its own and is therefore not a legal personality or a separate legal personality. The Legislative Council is simply and purely the legislative arm of Guyuk Local Government Council.

The Adamawa State Local Government System, Establishment and Administration of Local Government Councils Law, No. 4 of 2000 is certainly not an authority for the contention that the Legislative Council is a separate legal personality, for that law did not create any such legal personality separate from Guyuk Local Government. The law only established a legal personality known as Guyuk Local Government, which was already created by Sections 3 and 7 of the 1999 Constitution (as amended).

The awareness of the provisions of these laws is precisely why the Appellant must have instituted the action in the individual names of the Councillors, being members of the Legislative Council of Guyuk Local Government. Thus, the actions of the 1st-11th Respondents, as members of Guyuk Local Government Legislative Council, were in fact the actions of Guyuk Local Government, the Council being a part of Guyuk Local Government who acted as such in their official capacities. By Section 37 (1) of the Local Government Law, No. 4 of 2000, the Chairman of the Local Government may attend a meeting of a Local Government Council, either to deliver an address on the affairs of the Local Government, or to make such statement on the policy of the Local Government, as he may consider to be of importance to the Local Government. This provision essentially underscores the difference between the Local Government and the Local Government (Legislative) Council. It is thus this Guyuk Local Government, whose non-joinder has rendered the action incompetent.

In fact, by the very reason of the Notice of intention to sue Guyuk Local Government, Exhibit FDA 4, (at page 54 of the Record of Appeal), served on Guyuk Local Government by the Appellant, he was under no illusion as to the necessity of joining Guyuk Local Government as a party to his suit. By the averments in his Counter affidavit filed in answer to the affidavits in support of the preliminary objections of the Respondents, filed on 02-06-10 at pages 5-8 of the Record of Appeal, it is evident that the Appellant failed to join Guyuk Local Government in a bid to beat deadlines for filing the action. The relevant portions of the Counter-affidavit speak for themselves and so, are set out hereunder:

5. Upon my instituting suit No. ADSN/4/2010, the 1st to 3rd Defendants therein had vide their Counsel J.E. Owe Esq., raised a preliminary objection to the action on the ground that the mandatory pre-action notice of one month had not been given to the 1st Defendant (Guyuk Local Government Council) before the commencement of the action…

6. In order not to lose of my action against the said ten elected Councillors of Guyuk Local Government Council who are public officers; and by the time the Ruling in Suit No. ADSN/4/2010 is delivered on 30th March, 2010 the action against them would have been statute-barred, I upon the advice of my Counsel decided to institute this action.

7. I know that the parties in this action which I instituted on the 24th March, 2010 are not the same as those in Suit No. ADSY/4/2010 which was eventually struck out for failure to serve the 1st Defendant (Guyuk Local Government Council) with the mandatory pre-action notice of one month.

11. I had to institute this action which is primarily against the said individual elected Councillors who purportedly impeached me on the 28th (sic) of December, 2009 and as public officers my claim would have been statute-barred by the 27th of March, 2010.

12. I know that when this Honourable Court struck out suit No. ADSY/4/2010 on 30th March 2010 I caused the said notice of my intention to sue the Guyuk Local Government Council vide my Counsel which is Exhibit “FDA 4″ referred to in paragraph 14 of the affidavit tin support of the preliminary objection dated 26th March, 2010 but filed on 27th March, 2010.

13. I gave the Guyuk Local Government Council (not the 1st to 10th Defendants in this suit) the said notice of intention to sue so as to enable me properly bring later in this suit an application to join the said Guyuk Local Government Council as a Defendant, if need be.

14. I know that the filing of this suit has helped me to save the claim I have against the Defendants herein from being statute-barred and has also afforded me the opportunity to apply for joinder of the Guyuk Local Government Council as a party to this suit, if practicable.”

Unfortunately for him however, it failed to meet his objective because it ultimately meant that a very necessary party to the proper adjudication of the suit was omitted.

The suit at the Adamawa State High Court was therefore patently incompetent. The decision of the trial Court that Guyuk Local Government is a necessary party is demonstrably correct and I have no hesitation in affirming it. In my view, there is no doubt that Guyuk Local Government, which is the only body clothed with legal personality to sue and be sued in respect of any issues arising from the acts of the Local Government or its officers, is a necessary party to the suit before the trial Court. It was not joined. Not having been joined, it cannot be bound by a judgment or decision of which it has no notice and in which it did not participate.

What then is the consequence of this state of affairs? It is simply that, where an action is not competent or properly constituted, it robs the court of the jurisdiction to entertain it. In other words, such a complaint raises the issue of the jurisdiction of the trial court and ought to be dealt with first and foremost, since a judgment delivered in an action outside the jurisdiction of the court amounts to a nullity, irrespective of how well the proceeding was conducted by the trial Judge. Ofia V Ejem (2006) 5 SCNJ 188, per Onnoghen, JSC @ 196.

Thus, I am of the view that the learned trial Judge acted quite rightly when it struck out the suit for incompetence on the ground of non-joinder of a necessary party. There is no reason to interfere with that finding. I therefore resolve issue one in favour of the Respondents.

Having found as above, the second issue of whether the suit was caught by the statute of limitation, as in the Public Officers Protection Act, becomes academic and this court lacks the jurisdiction to venture into the realm of the hypothetical. The issue only arose due to the argument presented to the Lower Court that, should it find that Guyuk Local Government is a necessary party to the suit, the Lower Court should suo motu simply join it as such. The Lower Court however admirably dealt with that issue seeing that there were obvious legal constraints to its taking that action, the primary one being that, at the time the Appellant filed his suit, he had failed to issue the mandatory 30 day Notice of intention to sue to the Local Government, a public officer. That being the case, such an, action, where taken by the Lower Court, would have been still-born or dead on arrival (DOA).

Indeed, the Appellant, by hurriedly going behind to serve Guyuk Local Government with the 30 day Notice of intention to sue during the pendency of the suit at the Lower Court, which suit was filed on 24th March, 2010, he clearly conceded this point. The Originating Summons is contained at pages 55-61, while the Notice of intention to sue is Exhibit FDA 4 contained at page 54 of the printed Record of Appeal. The Notice is dated 31st March, 2010, and it states inter alia, as follows:

“RE-NOTICE OF INTENTION TO COMMENCE LEGAL PROCEEDINGS AGAINST GUYUK LOCAL GOVERNMENT

We are Counsel to Honourable Kube Akila Dwana of Ahmadu Bello Way, Opposite Central Primary School, Guyuk, Adamawa State.

We are writing to formally notify the Guyuk Local Government of our client’s intention to commence legal action in court against the Local Government on his behalf to challenge his purported removal as the Chairman of Guyuk Local Government by the Honourable elected councillors of Guyuk Local Government…

This is compliance with the Local Government Law which mandates our giving the Local Government 30 days notice from the date of the receipt of this letter.”

Therefore, the Appellant cannot approbate and reprobate on this issue. For, while on the one hand, he took appropriate action to serve the requisite Notice of intention to sue on Guyuk Local Government, on the other hand, he still argues that, by the Adamawa State Local Government Laws, he was not obliged to so give the Local Government any Notice. However, as I said, since this matter is now largely academic, I will refrain from going into it.

In the result, I find the Appeal lacking in merit. It fails and is dismissed. The Ruling of the Adamawa State High Court in Suit No.ADSN/6/2010, delivered on 21-07-10, is hereby affirmed. Parties are ordered to bear their own costs.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead judgment just delivered in this appeal by my learned brother JUMMAI HANNATU SANKEY, J.C.A. I agree with the analyses and conclusion made on the issues in the appeal.
For reasons so ably set out in the said lead judgment, I too hereby dismiss the appeal for lacking in merit. I abide by the consequential orders made in the said lead judgment.

ADAMU JAURO, J.C.A.: I read before now the draft of the lead judgment just delivered by my learned brother, J. H. SANKEY, JCA. I agree with his detailed reasoning and conclusions arrived at which i adopt as mine in holding that the appeal lacks merit same is also dismissed by me.
The Ruling of the Adamawa State High Court in Suit No.ADSN/6/2010 delivered on 21st July, 2010 is also affirmed by me. I abide by the Order as to no costs.

Appearances

Innocent Daa’gba, Esq, with H.A. Isa, Esq, and Hayatu Yakubu, Esq.For Appellant

AND

J. E. Owe, Esq, appears for 1st-12th Respondents.
J. A. Waya, SC II Adamawa State, M. O. J., appears for 13th Respondent.For Respondent