HON.MARTIN OKONTA V KINGSLEY NONYE PHILIPS & ORS
(2010) LCN/3869(SC)
In the Supreme Court of Nigeria
Monday, December 13, 2010
Case Number:SC.194/2010
RATIO
ACTION: PRINCIPLES GOVERNING PARTIES TO AN ACTION
It is trite law that it is only when proper parties are before the court which makes a court competent to adjudicate on the suit. “The issue of necessary parties being before the court had been considered in various decisions of the court. A court has no jurisdiction to make an order which affects the interest of a person who has not been joined as party.
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 is a necessary party, what to consider is, whether the question in the action cannot be effectually and completely settled unless the person is made a party.
Green v. Green (1987) 3 NWLR pt. 61 pg. 480; Awoniyi v. Registered Trustees of Rosicrucian Order Armoc (2000) 10 NWLR (pt. 676) pg.522 at pg. 540. PER OLUFUNLOLA OYELOLA ADEKEYE, J.S.C
JUSTICES:
DAHIRU MUSDAPHER Justice of The Supreme Court of Nigeria
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria
JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Supreme Court of Nigeria
Between
HON. MARTIN OKONTA Appellant(s)
AND
KINGSLEY NONYE PHILIPS & ORS. Respondent(s)
OLUFUNLOLA OYELOLA ADEKEYE, J.S.C. (Delivering the Leading Ruling): This is an appeal against the judgment of the Court of Appeal, Abuja delivered on the 12th of May, 2010. By way of brief background of the facts the matter was commenced at the federal High court Abuja by originating summons. The plaintiff before the Federal High Court-now the 1st respondent in this appeal – Kingsley Nonye Philips claimed that he was the nominated candidate of Peoples Democratic Party to contest as a representative for Ika South Constituency into the Delta State House of Assembly. The seat being contested by the 1st respondent in court was won by the appellant – Hon. Martin Okonta, who was already sworn in as a member representing Ika South Constituency in the Delta House of Assembly. The Federal High Court did not deem it fit to join the appellant in this case to that action, regardless of the fact that there were relevant portions of the originating summons which made particular reference to the appellant as follows:
Paragraph 4 (J)
“That the plaintiff in the above mentioned struck out action contested the primary election with the plaintiff and in the application lost to the plaintiff. His name is Martin Okonta”.
Paragraph 4 (K)
“That the plaintiff was surprised to hear from the Asaba office of the 2nd defendant about a letter of substitution written by the 1st defendant to the 2nd, 3rd defendant substituting his name for the said Martin Okonta on the 5th of February, 20007. The plaintiff were only allowed to read the letter but refused a copy of same as the office had only a few fax copy which could be read with some difficulty.”
Paragraph 5 (a)
“That the 1st defendant’s application as contained in the letter dated 5th of February, 2007 does not meet the requirement of the law for substitution of the plaintiff to contest the April, 2007 elections under the platform of the 1st defendant in Delta State.”
Paragraph 5 (b)
“That except the defendants are constrained they will proceed to act pursuant to the application of the 1st defendant to substitute the plaintiff with Martin Okonta as 1st defendant’s candidate for the Ika South Constituency slot of the Delta State House of Assembly thereby precluding the plaintiff from contesting in the aforementioned constituency”.
As the judgment of the Federal High Court in granting the declaratory reliefs of the plaintiff/1st respondent adversely affected the appellant, he applied to the Court of Appeal to be joined as an interested party.
The application was initially granted. The 1st respondent cross-appealed. The lower Court allowed the cross-appeal and restored the plaintiff/cross-appellant as the appellant/cross-respondent’s candidate for the election into the Delta State House of Assembly representing Ika Constituency. The lower court however inter alia raised the issue that the appellant was not a necessary party to the proceedings at the Federal High Court and also made orders which placed the 1st respondent in the office being occupied by the appellant without hearing him on the issue. This formed the germane and core issue for determination in this appeal. It is trite law that it is only when proper parties are before the court which makes a court competent to adjudicate on the suit. “The issue of necessary parties being before the court had been considered in various decisions of the court. A court has no jurisdiction to make an order which affects the interest of a person who has not been joined as party.
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 is a necessary party, what to consider is, whether the question in the action cannot be effectually and completely settled unless the person is made a party.
Green v. Green (1987) 3 NWLR pt. 61 pg. 480; Awoniyi v. Registered Trustees of Rosicrucian Order Armoc (2000) 10 NWLR (pt. 676) pg.522 at pg. 540.
There are overwhelming facts before the court to indicate that the issue of substitution between the appellant and the 1st respondent could not have been effectually and completely settled without joining the appellant. It clearly amounts to a breach of his fundamental rights to fair hearing by virtue of Section 36 (1) of the 1999 Constitution not to have joined him at every stage of the proceedings at the Federal High Court.
The action at the Federal High Court was incompetent and ought to be struck out. The decision of the lower court in holding that he was not a necessary party was glaringly wrong and this court shall not hesitate to set same aside and we hereby set it aside. Consequently the decisions of the Federal High Court Abuja and the Court of Appeal Abuja were incompetent. The case of the plaintiff/1st respondent and the order made by the Federal High Court are struck out. The case before the lower court is set aside. The appellant’s appeal is allowed. The appellant is entitled to the costs of appeal assessed as N50,000.00 before this court and N30,000.00 at the Court of Appeal.
D. MUSDAPHER, J.S.C.: The lead judgment of court is read by Adekeye JSC and agreed to by Musdapher, Mohammad, Chukwuma-Eneh and Fabiyi, JJSC.
Appeal is allowed. The judgment of the court of Appeal is set aside, and the decision of the trial court is also set aside and in its place, the 1st respondent’s suit is struck out as it was incompetent. The appellant is entitled to costs at both the Court of Appeal and this Court assessed at N30,000.00 and N50,000.00 respectively.
I. T. MUHAMMAD, J.S.C.: I agree with the lead judgment of my learned brother Adekeye, JSC, that the appeal is full of merit and it is hereby allowed by me. Consequently the action before the trial court is hereby struck out and the decision of the court below is hereby set aside. Costs of N30,000.00 and N50,000.00 costs at the two courts below respectively.
C. M. CHUKWUMA-ENEH, J.S.C.: The lead judgment prepared by Adekeye JSC during the interval of standing down the case is delivered. I agree with him entirely that there is merit in the appeal. It is allowed. The judgment of the Court of Appeal is hereby set aside. The case in the trial court is hereby struck out as the necessary parties are not before the court. I abide by orders contained in the lead judgment.
J. A. FABIYI, J.S.C.: I agree with the judgment just delivered by my learned brother Adekeye, JSC. The appellant was a necessary party who was not joined at the trial court. Such was in breach of section 36 (1), 1999 Constitution.
The action at the trial court was incompetent. Same is hereby struck out. The decision of the Court of Appeal (court below) is hereby set aside.
I abide by all consequential orders contained in the lead judgment; that relating to costs inclusive.
Appearances
Mr. L.O. Fagbemi (SAN) with him, O. Dare, A. O. Popoola,
D. A. Oyun, J O. Nkwoja and Kenneth Omoruan For Appellant
AND
Mr. Idris Ibrahim with him, F.E. Iselewa
Mr. E. R. Emukoerno
Mr. Ahmed Raji with him, Hajara Baba Ajanah For Respondent
