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SPEAKER, CROSS RIVER HOUSE OF ASSEMBLY & ANOR v. EKOM & ORS (2021)

SPEAKER, CROSS RIVER HOUSE OF ASSEMBLY & ANOR v. EKOM & ORS

(2021)LCN/15578(CA)

In The Court of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, September 30, 2021

CA/C/75/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. THE SPEAKEER, CROSS RIVER HOUSE OF ASSEMBLY 2. CROSS RIVER STATE HOUSE OF ASSEMBLY APPELANT(S)

And

1. HON.(DR)ELUCATE OKORA EKOM 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION 3. PEOPLES DEMOCRATIC PARTY (PDP) 4. ALL PROGRESSIVES CONGRESS (APC) RESPONDENT(S)

RATIO:       

POWER OF THE COURT TO ADJUDICATE                                                     

Suffice to say that the learned trial judge has found and I endorse his findings that there was division and factions in the 3rd respondent as presented also in Exhibit D, the judgment of the Supreme Court delivered on 13th July, 2017 and thus there was justification of the 1st respondent’s defection. And having found justification of the 1st respondent’s defection, the powers of the appellants under Subsection (2) above cannot be said to have crystallized. By Section 6(6) (b) of the 1999 Constitution, the judicial powers of the Court extends to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. See RANSOME KUTI V ATTORNEY GENERAL OF THE FEDERATION (1985) 7 NWLR (prt.6) 211 and BAKARE V ATTORNEY GENERAL OF THE FEDERATION (1999) LPELR – 707. Therefore, the lower Court in the exercise of its judicial powers pursuant to Section 272 (3) of the 1999 Constitution (as amended) can adjudicate and determine the question of the civil rights and obligations of the parties before it.  PER MUHAMMED LAWAL SHUAIBU, J.C.A.

NON-JOINDER OR MISJOINDER OF PARTIES IN A SUIT DOES NOT ROB THE COURT OFF ITS JURISDICTION

Considering the reliefs sought by the 1st respondent at the lower Court, the 3rd and 4th respondents may at best fall within the first category i.e. proper parties who, though not interested in the plaintiff’s claims but made parties for some good reasons. The provisions of Order 9 Rules 5, 7 and 14 of the Federal High Court (Civil Procedure) Rules is to the effect that any person may be joined as defendant against whom the right to any relief is alleged to exist whether jointly, severally, or in the alternative. However, it shall not be necessary that every defendant shall be interested as to all the reliefs prayed for or as to every cause of action included in any proceedings against him. And that no proceeding shall be defeated by reason of misjoinder of parties, and a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him. At any rate, non-joinder or mis-joinder of a necessary party is only a procedural irregularity which does not affect the jurisdiction of the Court. See F.M.C. IDO-EKITI & ORS V ALABI (2011) LPELR – 10931 (CA) and IREPODUN EFELODUN L.G. V BALEMO (2008) ALL FWLR (prt.420) 682 at 708. This issue is resolved against the appellants. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

TYPES OF PARTIES TO A SUIT

On whether or not the 3rd respondent was a proper and necessary party as canvassed on issue no.3, the appellants’ contention is that since the 1st respondent did not claim any relief against the 3rd respondent at the trial Court, the learned trial judge ought not have made any pronouncement affecting the interest of the 3rd respondent. In effect, the appellants contended that both the 3rd and 4th respondents are not necessary parties as such the learned trial judge ought to have removed their names from the suit. The law is trite that it is only where a person is a necessary party that such person becomes essential. In other words, the Court ought to have before it such parties as would enable it to effectually and completely adjudicate upon and settle all questions raised in the suit once and for all. See ONYIA V M.T.N. COMMUNICATIONS LTD (2015) LPELR – 25760 CA. In GREEN V GREEN (Supra), parties to an action have been classified into three namely, (a) proper parties, (b) desirable parties and (c) necessary parties. Proper parties are those who though not interested in the plaintiff’s claims are made parties for some good reasons and desirable parties are those who have an interest or who may have an interest or who may be affected by the result, while necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. See also DAPIANLONG & ORS V DARIYE & ANOR (2007 LPELR – 8241 (CA).  PER MUHAMMED LAWAL SHUAIBU, J.C.A.

THE COURT IS EMPOWERED TO RAISE ISSUES SUO MOTU WHERE SUCH ISSUES EXIST IN RESPECT OF THE MATTER BROUGHT BEFORE IT.

Generally speaking, no Court has the authority to raise an issue or issues suo motu and rely on same to decide the case in question, one way or the other, without inviting the parties to be heard, that in fact would be a fundamental flaw and a breach of the rule of fair hearing. See FULANI & ANOR V IDI (1990) 5 NWLR (prt.150) 311, UGO V OBIEKWE (1989)1 NWLR (prt.99) 566 and OJE & ORS V BABALOLA & ORS (1991) 4 NWLR (prt.185) 267.

A Court can only be said to have raised an issue suo motu if the issue or matter of facts did not exist in litigation, it is absurd therefore to accuse a Court of raising an issue or a matter of fact suo motu, if the issue or matter of fact existed in the litigation. It is expected that a Court in the course of its functions can draw inference from facts before it, and by such inferences, arrived at conclusion, which cannot be said to have been drawn suo motu. See TOBIN V IDAIBIFIBERESIMA & ANOR (2019) LPELR – 49023 (CA).From the excerpt of the judgment of the lower Court which was reproduced above, it would be absurd to suggest that making references to the inadmissibility of the appellants’ counter-affidavit and the annexure thereto amount to raising an issue suo motu. That being so, it is perfectly within the domain of the trial Court to evaluate the evidence and make findings on facts that existed in litigation. After all, the Court can only rely on credible and admissible evidence. PER MUHAMMED LAWAL SHUAIBU, J.C.A. 

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Calabar delivered by Hon. Justice I. E. Ekwo on 13th December, 2018 entering judgment in favour of the plaintiff now 1st respondent.

By an amended originating summons filed on 20th July, 2017, the plaintiff therein formulated the following questions for determination:-
1. Whether upon proper construction and giving due effect to the provision of Section 109(1) (g) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) particularly the proviso thereto, and in the light of the plaintiff’s defection from the 4th defendant to 5th defendant for reasons of existence of a division and faction in the 4th defendant his seat as member of State of Assembly can be declared vacant.
And if the above question is answered in the negative;
2. Whether the 2nd and 3rd defendants acted in accordance with the law by applying Section 109 (1) (g) of the 1999 Constitution (as amended) in declaring the plaintiff’s seat vacant and ordering the 1st defendant to conduct election to fill the vacancy.

3. Whether in the light of Section 6 (6) (c) of the 1999 Constitution (as amended), the 2nd and 3rd defendants purportedly acting under Section 109 (2) of the 1999 Constitution (as amended) can proceed to determine the plaintiff’s right and obligations by declaring and making pronouncement regarding a right of membership of the State House of Assembly.
And if not
4. Whether they have not exceeded the powers vested in them under that Section and at the same time usurp (sic) the judicial powers of Court vested by the 1999 Constitution of the Federal Republic of Nigeria (as amended).

And upon the determination of the above questions, the plaintiff prayed for the following reliefs:
(i) A declaration that the action or pronouncement made by the 2nd and 3rd defendants declaring the plaintiff’s seat as member of the Cross-River State House of Assembly vacant is unconstitutional, illegal, null and void and of no effect.
(ii) A declaration that the 2nd and 3rd defendants lack the constitutional powers or any power whatsoever to declare the plaintiff’s seat as member of the Cross-River State House of Assembly vacant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

(iii) An order setting aside/nullifying the proceedings, conclusions and resolution reached by the 2nd and 3rd defendants on the 14th day of July, 2017 as it (sic) affects touch and relates (sic) to the plaintiff’s constitutional (sic) right as member of the 5th defendant and as member representing Obubra II State Constituency in the Cross River State House of Assembly.
(iv) An order directing the 2nd and 3rd defendants to re-admit and accord, restore all the privileges, entitlements due to the plaintiff from the date and time the 2nd and 3rd defendants purportedly declared his seat vacant till the expiration of his tenure.
(v) An order directing the 1st defendant to ignore, restrain from giving effect to the 2nd and 3rd defendants mandatory order calling for conduct of fresh election to fill the plaintiff’s seat.
(vi) An order of injunction restraining the defendants either by themselves or through their servants, agents or any other person howsoever described from illegally preventing or interfering with the plaintiff’s right to continue to hold his seat as a member of the Cross River State House of Assembly.
(vii) Any further order or orders as this Honourable Court may seem fair and just to make in the circumstances of this case.

Upon service of the above together with the supporting affidavit on the defendants, only the 2nd and 3rd defendants responded by filing a 31 paragraphs counter-affidavit deposed to by one Adomi Egor Ekom, the Ward Chairman of the 4th defendant in Iyamobong Council Ward of Obubra Local Government Area of Cross-River State.

After hearing parties on their respective affidavit evidence, learned trial judge found inter alia at pages 863 – 864 of the record of appeal that –
“I find that there was division and factions in the 4th defendant as represented in Exh. D which is the judgment of the Supreme Court delivered on 13th July, 2017. In that case, the action of the plaintiff to defect from the 4th to 5th defendant was justified by the provision of S. 109 (1) (g) of the 1999 Constitution (as amended) on account of the division and faction in the 4th defendant……
Having found that the action of the plaintiff was in conformity with the provisions of S.109 (1) (g) of the 1999 Constitution(as amended) (as amended), the act of the 2nd and 3rd defendants in declaring the seat of the plaintiff vacant was unconstitutional. It is irrelevant to ague as the plaintiff and the 2nd and 3rd defendants have done, whether the plaintiff was or was not given fair hearing. The law must be properly understood, that mere existence of evidence of fair hearing in an unconstitutional assembly meeting or Tribunal does not by that virtue make what is unconstitutional constitutional. In conclusion, I hereby answer the issues raised by the plaintiff in the negative. Consequently, I find that the case of the plaintiff succeeds on the merit and I so hold.”

Dissatisfied with the above, appellants appealed to this Court through a notice of appeal filed on 4/01/2019. The said notice of appeal at pages 872 – 877 of the record of appeal contains six grounds of appeal.

At the hearing of this appeal on 12/7/2021, Mba O. Mba, Esq., on behalf of the appellants adopted and relied on the appellants’ brief of argument filed on 26/3/2019 in urging this Court to allow the appeal. P. T. Akan Esq., adopted and relied on the 1st respondent’s brief of argument filed on 21/6/2019 but deemed as properly filed on 10/9/2021 in urging this Court to dismiss the appeal.

Learned counsel for the appellants distilled five issues for the determination of this appeal as follows:-
1. Whether the learned trial judge was right when he held that appellants’ lacked the constitutional power or any power whatsoever to declare the 1st respondent’s seat as a member of the Cross-River State Assembly vacant.
2. Whether the learned trial Court’s misconstrued of leadership tussle in the 3rd respondent’s party as tantamounting to “division” in the political party or a merger of two or more political parties or factions as provided in the proviso to S. 109 (1) (g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has not overlooked the interpretation given to that proviso in the cases of Abegunde v Ondo State House of Assembly & Ors (2015) All FWLR (prt. 786) 243, Delta State House of Assembly v Democratic Peoples Party (2014) LPELR 22808 CA and A. G. Federation v Abubakar (2007) 10 NWLR (prt. 1041).
3. Whether the learned trial judge was right when he held that there was a cause of action against the 4th respondent when the 1st respondent has not disclosed any grievance or claimed any reliefs against the 4th respondent.
4. Whether the learned trial judge was right when he held that the 2nd and 3rd respondents on their part did not file a counter-affidavit which has left him battling with its competence in law when he in fact acknowledged that there was a 31 paragraph counter-affidavit deposed to by one Adoni Egor Ekom on behalf of the 2nd and 3rd defendants and a written address in opposition to the originating summons.
5. Whether the learned trial judge was right in law when he raised the issue of the competence of the appellants’ counter-affidavit and the documents attached suo motu and based his decision on it without giving the parties particularly the appellants the opportunity to be heard on such fundamental points thereby breaching appellants’ right to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria.

Learned counsel for the 1st respondent on his part formulated four issues for the determination of this appeal thus:-

1. Whether the lower Court is right in its decision that the appellants lacked the Constitutional powers to declare the seat of 1st respondent as member of the 2nd appellant vacant.
2. Whether having regards to the circumstances of this case and the evidence, the learned trial judge is not right in his decision that a division and faction envisaged in Section 109 (1) (g) of the 1999 Constitution occurred within the 3rd respondent to justify the 1st respondent retaining his seat after defection.
3. Whether having regards to the circumstances of this case, the 4th defendant (now 3rd respondent) is not a proper and necessary party who ought to be joined in this suit.
4. Whether the learned trial judge is wrong in law carrying out an evaluation of the appellants’ counter-affidavit and commenting on the credibility and competence of the counter-affidavit and whether by so doing, he can be accused of raising issue suo motu.

Upon careful perusal of the above vis-à-vis the record of appeal, the four issues formulated by the 1st respondent are preferred for being apt and concise. I will therefore determine this appeal in the light of the four issues formulated by the 1st respondent.

Before delving into the said issues, it is pertinent to restate the facts of the case as gathered from the record of appeal – albeit briefly. The 1st respondent was elected to represent Obubra II State Constituency in the Cross-River State House of Assembly under the platform of the Peoples Democratic Party (PDP). In the course of being a member of the State Assembly, his party under which he was elected became enmeshed in intractable crisis and leadership tussle at the centre that led to the polarization of the party into two factions known as Modu Sheriff and Ahmed Makarfi factions and both factions were therefore engaged in multiple Court cases. As a result of this crisis, the 1st respondent took a decision to defect to the All Progressive Party (APC) which decision he communicated to the Speaker of the Cross-River State House of Assembly. However, the Speaker and the entire members of the House of Assembly took a decision and declared the 1st respondent’s seat vacant citing Section 109 (1) (g) of the Constitution.

Proffering argument on issues nos. 1 and 2, learned counsel for the appellants submitted that the appellants have the power to declare the 1st respondent’s seat vacant following his defection from the 3rd respondent under which platform he was elected as a member of the Cross-River State House of Assembly to the 4th respondent. Counsel relied on Section 109 (1) (g) of the 1999 Constitution and the case of Abegunde v Ondo State House of Assembly (2015) All FWLR (prt. 786) 2113 to contend that it was only where there is a division in a political party or where there is a merger of two or more political parties and or where there are factions by the political party of which he was previously sponsored that the 1st respondent could retain his seat after defecting from his political party.

Still in argument, counsel submitted that the term “factionalization” is not the same as “division within the contemplation of Section 109 (1) (g) of the Constitution also relying on Abegunde v Ondo State house of Assembly (Supra) Fedeco v Goni & Anor (1983) LPELR – 11255, and Chike Obi v Ibrahim Waziri (1961)1 All NLR (prt. 2) 371 as regards the conditions under which a member of a legislative house could defect to another party. And that the tussle for chairmanship of 3rd respondent between Senator Ali Modu Sheriff and Senator Ahmed Makarfi does not amount to a division in the 3rd respondent party and hence the declaration of the 1st respondent’s seat with the 2nd appellant vacant was therefore constitutional.

Counsel further submitted that it is only the type of factionalisation or division that makes it impossible or impracticable for a party to function that can justify a person to defect to another party and at the same time retain his seat for the unexpired term in the house despite his defection. He referred to AG Federation v Abubakar (2007) 10 NWLR (prt.1041)1 at 178 to the effect that Section 109 (1) (g) of the Constitution empowers the appellant particularly the 1st appellant to declare the seat of the 1st respondent vacant for defecting from the 3rd respondent and that the violation of the aforesaid provision of Section 109 (1) (g) of the Constitution by the 1st respondent automatically activate the power of the 1st appellant to declare the seat of the 1st respondent vacant. In response to the above, learned counsel for the 1st respondent submitted that there is nowhere either in the Constitution or any other law that the appellants are empowered to determine and make declarations over civil rights and obligations of any person. Thus, the power to determine rights and obligations as well as making declarations squarely vest with the Courts established by the Constitution relying on Section 6(1) (a) and (b) of the 1999 Constitution (as amended). Counsel referred to Section 64 (1) (g) of the 1979 Constitution and the case of Fedeco v Goni (Supra) to contend that there is nothing to suggest that under Section 109 (1) (g) which is in pari materia which Section 64 (1) (g) above that once a member defects particularly where there is division or merger, that member’s seat can summarily be declared vacant by a resolution of the appellants. What the appellants are required to do whenever any event in Section 109 (1) is established or have occurred, according to learned counsel, is to give effect or enforce the provisions of that Section. He contends that the Section merely imposes a duty to enforce rather than a power to control or act regarding the subject matter. Counsel cited and relied on INEC V. DEMOCRATIC PEOPLES PARTY & ANOR (2015) LPELR – 24900 (CA) to the effect that it is a declaration made by the Court that will be part of the evidence the appellants may require to satisfy themselves that the provision of that Section has become enforceable as declaration is within the purview of the Court not the appellants herein also relying on Alegbe v Oloyo (1983) NSCC 315.

Still in argument, counsel submitted that the procedure adopted by the appellants in declaring the 1st respondent’s seat vacant was a complete aberration of the Constitutional provisions and thus clearly ultra vires their powers also citing Section 6 (6) of the Constitution and the case of ALEGBE V OLOYO (Supra).

He further submitted that there was indeed a division and faction which torn the 3rd respondent into two factions with each factional chairman claiming to be the authentic faction having the power to make decisions binding on its members. Thus, the learned trial judge’s decision was based on empherical evidence based on the judgment of the Supreme Court, Exhibit D. Counsel concluded that the lower Court rightly determined the Constitutional issue arising from Section 109 (1) (g) of the Constitution by first evaluating the evidence placed before him before proceeding to resolve the said Constitutional issue.

On issue no.3, learned appellants’ counsel argued that the suit at the lower Court was predicated on the action of the 1st appellant in declaring the seat of the 1st respondent with 2nd respondent vacant following the defection of the 1st respondent to the 4th respondent. He submitted that the 1st respondent did not disclose any grievance he had against the 3rd and 4th respondents and that the 3rd and 4th respondents were not necessary parties and the trial judge ought to have removed their names from the suit. Counsel cited the case of BWACHA V IKENYA (2011) 3 NWLR (prt.1235) 610 at 614.

On the part of the 1st respondent, it was contended that a relief/claim need not to be made against the defendant before he can be joined as a party as a person could be made a party in a suit for reason of having an interest in a suit for good reasons. Counsel submitted that by virtue of the allegations made against the 3rd respondent, it was proper that he be made a party to afford him opportunity to answer those allegations. He referred to Order 9 Rule 14 of the Federal High Court (Civil Procedure) Rules and the case ofGREEN V GREEN (1987) LPELR – 1338.

Finally on issue no. 4, the appellants’ contention is that the issue of the competence of their counter-affidavit was never canvassed by any of the parties at the lower Court and therefore same was raised suo motu by the learned trial judge. And having raised the issue of competence of the appellants’ counter-affidavit and the documents attached thereto suo motu and based his decision on it without first giving the parties particularly the appellants the opportunity to be heard on such a fundamental point of law, appellants right to fair hearing was breached by the lower Court. Counsel cited and relied on Section 36 of the Constitution and the cases of N.N.P.C. V CLIFCO (NIG) LTD (2011) 10 NWLR (prt. 1255) 209 at 231 and ADETOYE V F.I.I.R, OSHODI (2011) 14 NWLR (prt.1267) 350 at 379 to contend that a Court does not make a new case for a party to a suit and a judge must not alter the material of which, it is woven but he can and should iron out the creases. He submitted further that it is not open to any Court to raise a point suo motu, no matter how clear it may be and proceed to resolve it one way or the other without hearing the parties. Where a Court does that, it would have breached the parties’ right to fair hearing.

Reacting to the above, the 1st respondent contends that a Court cannot be accused of raising issue suo motu when the facts which the Court is considering have been put forward by the litigants. Counsel submitted that the process of a Court determining the probative value or credibility of evidence before the Court is not an issue which requires the invitation of the contending parties to address the Court. Thus, the learned trial judge according to counsel was right in law and did not breach any rule of fair hearing.

RESOLUTION
The stratum of the parties contention on issues nos.1 and 2 above relates to the efficacy of Section 109 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Whereas the appellants contends that they have by virtue of the Section 109 (1) (g) aforesaid have the power to declare the seat of the 1st respondent vacant, the 1st respondent maintained that the extent of their power in the circumstance is restricted to giving effect to and or enforcing the Section and not to make a declaration on it which is exclusively for the Court under the doctrine of separation of powers. The pertinent provision of Section 109 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) provides as follows:-
“109 (1)- A member of a House of Assembly shall vacate his seat in the House if:-
(a)..
(b)..
(c)..
(d)..
(e)..
(f)..
(g) being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected.”
Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.” In A.G FEDERATION V ABUBAKAR (Supra), the Supreme Court was emphatic that it is manifest from the provision of Sections 68 (1) (g) and 109 (1) (g) of the 1999 Constitution that the makers of the Constitution intended to and indeed made punishable the defection of a member of the Senate, House of Representatives or a House of Assembly from the political party that sponsored him to another political party before the expiration of the period for which the legislative house was elected by declaring the seat of such member vacant. However, the proviso to Sections 68 (1) (g) and 109 (1) (g) of the Constitution aforesaid in my view creates an exemption to the general rule to the effect that defection from one political party to another by a member of a legislative body is justified where there is a division in the political party of which a member won the election or where his party entered into a merger with other political party or parties or where there exist a factions within his political party on whose platform he became a member of such legislative body.

What is to be determined here is whether there exist a division, faction or merger by the 3rd respondent justifying the defection of the 1st respondent to 4th respondent herein.

The 1st respondent as plaintiff before the lower Court claimed that his defection was as a result to factionalisation of the 4th defendant now 3rd respondent into two factions respectively led by Alhaji Ahmed Makarfi and Senator Ali Modu Sheriff. In paragraphs 7.5 – 7.17 at pages 8-10 of the record of appeal, the 1st respondent succinctly put his case thus:-
7.5 – That sequel to the outcome of the 2015 general election in which his former party, the 4th defendant lost the presidency, many of the states government and its majority at the National Assembly, the leadership of the 4th defendant announced a National Convention Scheduled for Port Harcourt Rivers State for the purpose of elections now leadership for the 4th defendant.
7.6 That the said convention could not proceed as planned following serious and intractable leadership crisis which polarized the 4th defendant and disrupted the said convention.
7.7 That the effect of the disruption of the National Convention of the 4th defendant led to the division/factionalization of the 4th defendant into two factions both at the National, Zonal and State levels of the 4th defendant.
7.8 That since the factionalisation of the 4th defendant, there is not been a midterm National Convention to chart the way forward for the 4th defendant neither has there been unified meeting of the National Executive Committee of the 4th defendant to effectively run the 4th defendant.
7.9 That the 4th defendant currently has two factions led respectively by Alhaji Ahmed Makarfi and Senator Ali Modu Sheriff both claiming leadership of the 4th defendant. The certified true copies of newspaper reports of the crisis in the 4th defendant is herein attached and marked as Exhibit EOE 3.
7.10 That the leadership crisis/factionalization of the 4th defendant has been subject of series of litigations and conflicting judgments and is now pending in the Supreme Court of Nigeria for determination.
7.11 That the consequence of the factionalisation of the 4th defendant into two factions respectively led by Alhaji Ahmed Makarfi and Senator Ali Modu Sheriff and the total lack of strong and virile leadership and direction by the 4th defendant and acting on the demand of his constituents, he exercised his constitutional right to convince his defection from the 4th defendant to the 5th defendant on the 2nd of July, 2017 at the headquarters of his ward situated at Iyamoyong in Obubra Local Government Area of Cross-River State. The plaintiff’s membership card of the 5th defendant is hereby attached and marked as Exhibit EOE 4.

The 2nd and 3rd defendants now appellants denied polarization and division in the 3rd respondent but admitted that there was a leadership struggle for the position of chairman of the party.

I have stated that the proviso to Sections 68 (1) (g) and109 (1) (g) of the 1999 Constitution (as amended) creates an exception to the punishment imposed on a member defecting from the political party under platform of which he was elected into the legislative house to another party. The exceptions envisaged are that there must have been division in the previous political party, a merger of two or more political parties or factions by one of which the defector was previously sponsored.

A political faction is a grouping of individuals, especially within a political organization, such as political party, a trade union, or other group with a political purpose. A political faction could be described as “a party within a party”. It is thus an internal conflict within an organization and or a small section of a group that has broken off from or separated itself from a larger one.

From the facts as contained in both the affidavit in support of the originating summons as well as the counter-affidavit of the 2nd and 3rd defendants, it is clear that there was a fragmented sub-factions in the 3rd respondent that polarized it into two factions namely, Alhaji Ahmed Makarfi and Senator Ali Modu Sheriff factions. In paragraph 7 of the counter-affidavit, the appellants admitted tacitly to a division in the 3rd respondent but alluded that it was not a deep seated crisis but something akin to a leadership struggle for position of chairman of the party. There is no gainsaying the fact that the leadership struggle in the instant case has polarized the 3rd respondent as though they are from opposite ends and thus the learned trial judge was right when he found at page 862 of the record of appeal that:-
“What the 2nd and 3rd defendants by their semantics failed to take cognizance is the elementary meaning of the phrase “tussle” whether used as noun or verb. It is indicative of a fight or struggle for something. There must be sides, parties, faction or division for a tussle to take place. When tussle is said to arise because of issues of leadership as claimed by the 2nd and 3rd defendants, the most natural consideration would be that division and faction exist……
I find that the entire averments in the counter-affidavit of the 2nd and 3rd defendants does not deny the fact of “division” or “factions” which the provision of S.109 (1) (g) of the 1999 Constitution portrays.”

The facts and circumstance of the present case are not mutually the same with the facts and circumstances in the cases of ABEGUNDE V ONDO STATE HOUSE OF ASSEMBLY and DELTA STATE HOUSE OF ASSEMBLY & ANOR V DEMOCRATIC PEOPLES PARTY & ORS (Supras). The facts in the present case centred essentially on whether the leadership tussle/struggle in the 3rd respondent constitutes a division or faction within the contemplation of Section 109 (1) (g) of the 1999 Constitution (as amended). The facts in Abegunde’s case aside not proving any division in the party, the purported crisis was not at the party structure. It was therefore held in Abegunde’s case that even if the affidavit had proven that there was a dispute in the labour party in Ondo State that would not entitled him to defect because political party referred to in Section 68 (1) (g) of the Constitution cannot be a State, Local Government, Ward or village, chapter of the party. Political party entails its registration as a whole structure. In the instance case, there was avalanche of evidence of division and polarization at the party structure. Similarly, there was no certainty, great danger which would amount to a crisis in the party during the period before the resignation and defection in the case of Delta State House of Assembly as against proven case of division in this case. In effect, there was justification in the 1st respondent’s defection and therefore, immuned from the punishment of losing his seat.

The next germane issue relates to the appellants’ powers under Sub-section (2) of Section 109 of the Constitution. It read as follows:-
“(2) The Speaker of the House shall give effect to Subsection (1) of this Section, so however that the speaker or any member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member.”

Suffice to say that the learned trial judge has found and I endorse his findings that there was division and factions in the 3rd respondent as presented also in Exhibit D, the judgment of the Supreme Court delivered on 13th July, 2017 and thus there was justification of the 1st respondent’s defection. And having found justification of the 1st respondent’s defection, the powers of the appellants under Subsection (2) above cannot be said to have crystallized. By Section 6(6) (b) of the 1999 Constitution, the judicial powers of the Court extends to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. See RANSOME KUTI V ATTORNEY GENERAL OF THE FEDERATION (1985) 7 NWLR (prt.6) 211 and BAKARE V ATTORNEY GENERAL OF THE FEDERATION (1999) LPELR – 707. Therefore, the lower Court in the exercise of its judicial powers pursuant to Section 272 (3) of the 1999 Constitution (as amended) can adjudicate and determine the question of the civil rights and obligations of the parties before it. Also having found that the action of the 1st respondent was in conformity with the extant provision of the Constitution, the learned trial judge was right in faulting the steps taken by the appellants in declaring the 1st respondent’s seat vacant. Issues I and II are therefore resolved against the appellants.

On whether or not the 3rd respondent was a proper and necessary party as canvassed on issue no.3, the appellants’ contention is that since the 1st respondent did not claim any relief against the 3rd respondent at the trial Court, the learned trial judge ought not have made any pronouncement affecting the interest of the 3rd respondent. In effect, the appellants contended that both the 3rd and 4th respondents are not necessary parties as such the learned trial judge ought to have removed their names from the suit.

The law is trite that it is only where a person is a necessary party that such person becomes essential. In other words, the Court ought to have before it such parties as would enable it to effectually and completely adjudicate upon and settle all questions raised in the suit once and for all. See ONYIA V M.T.N. COMMUNICATIONS LTD (2015) LPELR – 25760 CA.

In GREEN V GREEN (Supra), parties to an action have been classified into three namely, (a) proper parties, (b) desirable parties and (c) necessary parties. Proper parties are those who though not interested in the plaintiff’s claims are made parties for some good reasons and desirable parties are those who have an interest or who may have an interest or who may be affected by the result, while necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. See also DAPIANLONG & ORS V DARIYE & ANOR (2007 LPELR – 8241 (CA).

Considering the reliefs sought by the 1st respondent at the lower Court, the 3rd and 4th respondents may at best fall within the first category i.e. proper parties who, though not interested in the plaintiff’s claims but made parties for some good reasons.

The provisions of Order 9 Rules 5, 7 and 14 of the Federal High Court (Civil Procedure) Rules is to the effect that any person may be joined as defendant against whom the right to any relief is alleged to exist whether jointly, severally, or in the alternative. However, it shall not be necessary that every defendant shall be interested as to all the reliefs prayed for or as to every cause of action included in any proceedings against him. And that no proceeding shall be defeated by reason of misjoinder of parties, and a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him. At any rate, non-joinder or mis-joinder of a necessary party is only a procedural irregularity which does not affect the jurisdiction of the Court. See F.M.C. IDO-EKITI & ORS V ALABI (2011) LPELR – 10931 (CA) and IREPODUN EFELODUN L.G. V BALEMO (2008) ALL FWLR (prt.420) 682 at 708. This issue is resolved against the appellants.

Finally, the appellants’ grouse on issue no. 4 relates to the comments and or observations made by the learned trial judge regarding the credibility or competence of their counter-affidavit which the learned counsel alleged had breached the appellants’ rights to fair hearing. The requirement that a party must be given ample opportunity to present his case means that the Court has an obligation to consider all the materials placed before it by all parties before reaching a final decision. Thus, fair hearing lies in the procedure followed in a case, not in the correctness of the decision. In ZENITH PLASTICS IND. LTD V SAMOTECH LTD (2018) 8 NWLR (prt.1620) 165 at 181, the Supreme Court has held that when a breach of the right to fair hearing is established, miscarriage of justice is implied. This presumption imposes on the beneficiary of the judgment or decision, the onus of establishing that there was in fact no miscarriage of justice.

Generally speaking, no Court has the authority to raise an issue or issues suo motu and rely on same to decide the case in question, one way or the other, without inviting the parties to be heard, that in fact would be a fundamental flaw and a breach of the rule of fair hearing. See FULANI & ANOR V IDI (1990) 5 NWLR (prt.150) 311, UGO V OBIEKWE (1989)1 NWLR (prt.99) 566 andOJE & ORS V BABALOLA & ORS (1991) 4 NWLR (prt.185) 267.

In the case under consideration, the learned trial judge held as follows on pages 855 – 856 of the record of appeal that:-
“Now, the 2nd and 3rd defendants’ are sued in their respective constitutional capacities. However, I have noted that they chose not represent themselves by any credible manner. Their defense which consists in their 31- paragraphs counter-affidavit is not deposed to by the 2nd defendant either in person or even official capacity. The counter affidavit is deposed to by one Adoni Egor Ekom who is not the 2nd defendant or a member of the 3rd defendant. The said deponent has not established any relationship between himself and the 2nd defendant talkless of being a member or officer of the 3rd defendant. I can safely say that there is no legal nexus between the deponent and either the 2nd or 3rd defendant. Again, not being either the 2nd defendant or member or officer of the 3rd defendant, the deponent deposes to facts concerning the acts of the 2nd and 3rd defendants which are not within his personal knowledge and does not state the source of his information as required by law. These defects offend the provisions of the Evidence Act. Again, apart from Exh. CRSHA – I which the depnt onewas co-signatory, Exhs. CRSHA-2, CRSHA-3 and CRSHA-4 tendered by the deponent amount to documentary hearsay as he was not the author of these documents. There is evidence on Exh.CRSHA-5 that it was received by the 5th defendant on 11th July, 2017. The deponent in this case is not the maker thereof or the 5th defendant in this case. Therefore, Exh. CRSHA-5 also amount to documentary hearsay.”

A Court can only be said to have raised an issue suo motu if the issue or matter of facts did not exist in litigation, it is absurd therefore to accuse a Court of raising an issue or a matter of fact suo motu, if the issue or matter of fact existed in the litigation. It is expected that a Court in the course of its functions can draw inference from facts before it, and by such inferences, arrived at conclusion, which cannot be said to have been drawn suo motu. See TOBIN V IDAIBIFIBERESIMA & ANOR (2019) LPELR – 49023 (CA).

From the excerpt of the judgment of the lower Court which was reproduced above, it would be absurd to suggest that making references to the inadmissibility of the appellants’ counter-affidavit and the annexure thereto amount to raising an issue suo motu. That being so, it is perfectly within the domain of the trial Court to evaluate the evidence and make findings on facts that existed in litigation. After all, the Court can only rely on credible and admissible evidence. This issue is also resolved against the appellants.

In the result, the appeal is bereft of any substance and it is accordingly dismissed with cost which I assessed at N100,000.00

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother MUHAMMED L. SHUAIBU, JCA.
I agree with the reasoning and conclusion reached in the judgment.

In particular, I do agree that the learned trial judge in the Court below was right to have upheld the proviso in Section 109 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to justify the defection of the 1st Respondent from the 3rd to the 4th Respondent.

Indeed, the learned trial judge in the Court below was right in his decision that a division and or faction envisaged in Section 109 (1) (g) of the Constitution of the Federal Republic of Nigeria (as amended) occurred within the 3rd Respondent to justify the 1st Respondent retaining his seat after defection to the 4th Respondent.

For these and the fuller reasons contained in the lead judgment, I also find no merit in the appeal which is accordingly dismissed.
I abide with the order as to costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother, Muhammed L. Shuaibu, JCA and I am in agreement that the appeal be dismissed.

Paragraphs 7.9, 7.10 and 7.11 of the affidavit in support of the originating summons reproduced by me below read as follows:
“7.9 That the 4th Defendant currently has two factions led respectively by Alhaji Ahmed Makarfi and Senator Ali Modu Sheriff both claiming leadership of the 4th Defendant. The certified true copies of newspaper reports of the crisis in the 4th Defendant is herein attached and marked as Exhibit.
7.10 That the leadership crisis/factionalisation of the 4th Defendant has been subject of series of litigations and conflicting judgments and is now pending at the Supreme Court of Nigeria for determination.
7.11 That in consequence of the factionalisation of the 4th Defendant into two factions respectively led by Alhaji Ahmed Makarfi and Senator Ali Modu Sheriff and the total lack of strong and virile leadership and direction by the 4th Defendant and acting on the demand of his constituents, he exercised his constitutional right to announce his defection from the 4th Defendant to the 5th Defendant on the 2nd of July, 2017 at the headquarters of his ward situated at Iyamoyong in Obubra Local Government Area of Cross-River State. The Plaintiff’s memberships card of the 5th Defendant is hereby attached and marked as Exhibit EOE4.”

The above paragraphs of the affidavit in support of the originating summons stood unchallenged by the Defendants in the Court below as the 2nd and 3rd Defendants’ counter-affidavit was disregarded by the Court below and rightly so.

In the circumstances, this appeal has no merit.
I too dismiss it.

I abide by all other orders in the lead judgment including the order as to costs.

Appearances:

Mba O. Mba For Appellant(s)

Joseph Oloko: 1st Respondent For Respondent(s)