UYO LOCAL GOVERNMENT v. IDITO FISHER NIGERIA LTD & ANOR (2011)

UYO LOCAL GOVERNMENT v. IDITO FISHER NIGERIA LTD & ANOR

(2011)LCN/4996(CA)

In The Court of Appeal of Nigeria

On Monday, the 12th day of December, 2011

CA/C/230/2007

RATIO

DUTY OF APPELLATE COURT: DUTY OF APPELLATE COURT NOT TO MAKE COMMENTS THAT WILL AFFECT THE SUBSTANTIVE ISSUES YET TO BE DETERMINED WHEN DEALING WITH AN APPEAL AGAINST AN INTERLOCUTORY RULING OF THE TRIAL JUDGE

Before considering the issues formulated for determination I wish to remind Counsel that this appeal is against an interlocutory ruling of the learned trial Judge. The substantive suit is still pending. Appellate Courts are enjoined by the Supreme Court not to make comments that will affect the substantive issues yet to be determined by trial Judges. See Motune vs Gambo (1933) NCLR 237 at 242; Iweka vs SCOA (2000) 3 SC 21 at 24-25 and Kufeji vs. Kogbe (1961) 1 All NLR (Pt.1) 113 at 114. PER JOSEPH TINE TUR, J.C.A.

CAUSE OF ACTION: WHAT DETERMINES THE CAUSE OF ACTION

The statement of claim determines the cause of action and when it arose. See Ogbimi vs Ololo (1993) 7 SCNJ (Pt.2) 447; Nasiru Bello vs Attorney-General of Oyo State & Ors (1986) 5 NWLR (Pt.5) 828; Uwaifo vs Attorney General (1982) 7 SC 124. Adeyeye vs Ajiboye (1987) 3 NWLR (Pt.31) 432 and Adeyemi vs Opeyori (1976) 9 & 10 SC 31 at 44. PER JOSEPH TINE TUR, J.C.A.

PARTY: RIGHTS OF PARTIES TO AN AGREEMENT

Only parties to an agreement can rightly or wrongly terminate it. Secondly, only parties to the contract can sue or be sued upon its breach. In Nigeria LNG Ltd vs African Development Insurance Co. Ltd (1995) 8 NWLR (Pt.416) 677 Uwaifo, JCA, (as he then was) held at page 693 that: “…. as a general rule only a person who is a party to a contract can sue on it even in circumstances where the contract gives him some benefit or right under it and purports to entitle him to sue upon it. See Ikpeazu vs African Continental Bank Ltd (1965) NMLR 374 at 379 and Lagos State Development and Property Corporation vs Nigerian Land and Sea Foods Ltd (1992) 5 NWLR (Pt.244) 653 at 669, both relying on Dunlop Pneumatic & Co. Ltd (1914-1915) All E.R. Rep. 333 at 334 per Viscount Haldane L.C. PER JOSEPH TINE TUR, J.C.A.

JOINDER OF PARTY: WHO SHOULD BE JOINED AS PARTY TO A SUIT; PURPOSE OF JOINING A PERSON AS A PARTY TO AN ACTION

Again if a complaint is made against a person and relief is claimed against that person the rules of justice demand that he be joined in the suit. If no relief is claimed, against, any person no issue is joined between them. See Alhaji Onibudo & Ors vs Alhaji Akibu & Ors (1982) 7 SC 60 at 72 & 102; Otanioku vs Mustafa (1977) 11-12 SC 9. In Union Beverages Ltd vs Pepsicola International Ltd (1994) 3 NWLR (Pt.330) 1 at 17 paragraphs “E-F” Adio, JSC, held that: “…. If a complaint is made against a person in an action and the questions or issues involved in the complaint cannot be effectually and completely determined or settled in the absence of the person, such a person is a necessary party and ought to be joined in the suit. See Uku vs Okumagba (1974) 3 SC 35. The purpose of joining a particular person as a party is to ensure that that person is bound by the result of the action. That is the only way in which the fundamental questions in the action can be effectually and completely settled or determined. See Osunrinde vs Ajamogun (1992) 6 NWLR (Pt.246) 156.” Again in Rinco Construction Co. Ltd vs Veepee Industries Ltd & Or (2005) 9 NWLR (Pt.929) 85 Niki Tobi, JSC, held at page 100 that: “…Anyone whose presence is crucial must be made a party to he (sic) proceedings. See D. O. Ogbene and Sons Ltd vs Amoruwa (1985) 3 NWLR (Pt.32) 856. The only reason which makes a necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled therefore must be a question in the action which cannot be effectively and completely settled unless he is a party. See Expso Limited vs Pafab Enterprises Limited (1999) 1 NWLR (Pt.591) 449. PER JOSEPH TINE TUR, J.C.A.

NECESSARY PARTY: WHO IS A NECESSARY PARTY

‘A necessary party to a suit is a party who is not only interested in the subject matter of the proceedings but also a party in whose absence the proceedings could not be fairly dealt with. Consequently, without his being a party to the suit, the court may not be able to effectively and completely adjudicate upon and settle all questions involved in the Suit’. See Ojo Vs. Ogbe (2007) 9 NWLR Pt 1040 page 540, Mobil Oil Plc Vs. D.E.N.R. Ltd (2004) 1 NWLR page 853, Biyu vs. Ibrahim (2006) 8 NWLR (Pt.981) page 1. PER UZO I. NDUKWE-ANYANWU, J.C.A.

NECESSARY PARTY: CONSEQUENCE OF NOT JOINING A NECESSARY PARTY IN A CASE

Where a necessary party is not joined in a case, the court or tribunal lacks jurisdiction to entertain the case. See Amuda vs. Ajobo (1995) 7 Pt.406 page 170, Tafida v. Bafarawa (1999) 4 NWLR Pt.597 page 70. It has been held severally that a plaintiff is duty bound to bring before a court all parties that are crucial to the resolution of his case and failure to do so, the action is liable to be struck out. Adisa vs. Oyinlola (2000) 6 SC Pt.11 page 47. Where a plaintiff fails to join the persons against whom he is seeking a relief, the action in respect thereof would be struck out on the ground that it is improperly constituted. Ayorinde vs. Oni (2000) 2 SC page 33, Obla v. Otagoyi (2007) 5 NWLR Pt.1027 Page 304. PER UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

UYO LOCAL GOVERNMENT – Appellant(s)

AND

1. IDITO FISHER NIGERIA LTD

2. IBESIKPO ASUTAN LOCAL GOVERNMENT – Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Uyo Local Government has appealed against the ruling of his Lordship, Justice A. E. Archibong of the High Court of Justice, Uyo, Akwa Ibom State delivered on the 17th day of April, 2007 dismissing an application that her name be struck out from the suit pending before his Lordship’s Court of Justice. The appeal was filed on 24th April, 2007. There are three grounds of appeal attacking the ruling of his Lordship.

The facts that led to Idito Fisher Nigeria Ltd (1st Respondent) instituting this suit before the High Court of Justice, Uyo, Akwa Ibom State are as follows:

On 27th day of August, 1992 Uyo Local Government entered into a contract with Idito Fisher Nigeria Ltd for the supply and electrification of Ibesikpo Communities at the contract price of two million five hundred thousand Naira only (N2.5M). On the 2nd day of August, 1993 the contract was reviewed upward to N5million. In the course of executing the projects Uyo Local Government became cash trapped so the tempo of work slowed down. Nevertheless at her request the plaintiff supplied electrical equipment worth N3,672,600.00. The work was being supervised by the Ministry of Works. On the 10th day of May, 1996 the Uyo Local Government terminated the contract citing various reasons.

The plaintiff instituted this suit on 13-01-1997 and pleaded that the contract had been terminated and awarded to Afct Consultants Ltd. In paragraphs 13-17 of the Amended Statement of Claim the following facts were pleaded and reliefs claimed by the plaintiff against Uyo Local Government:

“13. The Plaintiff states that the entire process of the Defendants ending in the purported termination was done unreasonably and in bad faith – in that the Defendants know that;

“(a) The Plaintiff caused no delay of the project.

(b) There was revision of the project as at 1993.

(d) The Plaintiff financed the project with monies borrowed from Banks at high interest rates.

(e) Huge debts owed by the Defendants to the Plaintiff still remained unpaid.

(f) The Plaintiff is ready and willing to complete the project if and when the Defendant resume payment.

(g) The Defendants did not comply with the terms of the contract which however was subsumed in the Contract Revision.

(h) The Plaintiff had major equipment and materials on site, which would or may be vandalized and stolen in event of a re-award to another person.

(i) It is cheaper to complete the whole project as it were than awarding a new Contract for a fraction at a sum nearly more than the balance of the Contract sum owed on the entire project.”

14. The Plaintiff avers that at the time of instituting this action the Defendants were indebted to her in the sum as listed below:

(i) Total balance of Contract sum of N5 million after payment of N1.3 million N3,700,000.00.

(ii) Unpaid sum on the supply of materials vide:

Jobbing Orders Numbers –

(a) ULG/AD/S/422/57 of 17th May, 1993 N1,562,000.00

(b) ULG/AD/S/422/58 of 1st July, 1993 N2,110,600.00

Total N3,672,600.00

(iii) Materials purchased on Defendants’ demand but unpaid by them N580,720.00.

(iv) cost of replacing 150 pot insulators stolen on account of Defendants’ delay to pay for the completion N375,000.00.

Total indebtedness: N8,328,320.00.

15. The Plaintiff shall also claim interest thereon.

16. The Plaintiff pleads all the documents aforestated relating to the contract, the revision, payments, correspondence, etc in the paragraphs above. The Plaintiff shall lead evidence to establish the extent of work reached on the project.

17. However, the Plaintiff states that, the Defendants have no right to purport to terminate the contract in the first instance. The Plaintiff states that such an act will prejudice its interest on the contract. The Plaintiff states that upon the insistence of the Breach of this Contract that it is entitled to claim a liquidated damage of N500.00 per day from 10th May, 1996 until judgment in addition to special and general damages thereof.

18. WHEREFORE the plaintiff claims against the Defendants jointly severally as follows:

(1) The sum of N15,000,000.00 (Fifteen Million Naira) only being special and General Damages for wrongful termination by the Defendants of the contract with the Plaintiff entered on 27th August, 1992 at Uyo for the Electrical Installation project of Ibesikpo Communities.”

OR IN THE ALTERNATIVE:

“(a) A DECLARATION that the letter No.ULG/AD/S/568/Vol.1/114 of 10th May, 1996 of the defendants purporting to terminate the Electrical Installation Contract of Ibesikpo Communities (hereafter called the contract) between the Defendants and the Plaintiff dated 27th August, 1992 is invalid, null and void and of no effect.

(b) A DECLARATION that the Contract is valid and is still subsisting,

(c) AN ORDER OF COURT for the payment of the sums on the Execution of the Contract on quantum meruit as at 31st December, 1996 being the sum of N8,328.00.

(d) AN ORDER OF INJUNCTIION RESTRAINING THE DEFENDANTS by themselves and or their agents, servants, privies or whomsoever from taking over the contract sites hitherto being worked upon by the Plaintiff or carrying any works thereat or interfering with the fixtures materials and equipment on site or meddling in any manner with the contract and further from awarding same to any other Contractor or Contractors until the determination of this suit.

(e) AN INTEREST at the rate of 21% from 10th May, 1996 till judgment.”

On 11-08-1997 the plaintiff brought a motion supported by an affidavit praying that Ibesikpo/Asutan Local Government carved out of Uyo Local Government after the termination of the contract be joined in the suit as Co-defendant because the projects were situate in that local Government. Upon being joined Ibesikpo Asutan Local Government Area filed a statement of Defence denying liability by pleading that only a part of it was carved out of the 1st defendant and the other part from former Ekpe Atai Local Government Area. That it has no common assets and liabilities with the 1st defendant. She denied signing any contract with the 1st defendant and the plaintiff in 1992 or at all since she was not in existence in 1992, being created in 1996. The 2nd defendant however admitted that the project was to be located within her domain but unfortunately it was not executed hence the termination. She denied being a party to the agreement in question. Ibesikpo Asutan Local Government further pleaded that the plaintiff cannot claim from it because there was no privity of contract with her. Neither had the people of Ibesikpo and the entire Local Government Area derived any benefit whatsoever from the said contract since it was not executed due to termination by the 1st defendant. That the plaintiff is not entitled to any of the reliefs sought. The claim is speculative, frivolous, vexatious and an abuse of the process of the Court and ought to be dismissed with substantial cost.

On 24-04-2003 Uyo Local Government brought a motion praying that her name be struck out from the suit for the reasons set out in the affidavit of Francis Okure an Administrative Officer with the Local Government to wit:

” xxxxxxxx

4. That the cause of action in this suit arose on 10th May, 1996 when the 1st Defendant purportedly terminated the Electrical Installation contract of Ibesikpo Communities awarded to the plaintiff on 27th August, 1992.

5. That in 1997 the 1st Defendant as then constituted was reconstituted into Four (4) Local Government namely, Uyo Local Governmetn Area, Uruan Local Government Area, Nsit Atai Local Government and Ibesikpo-Asutan Local Government Area.

6. That Akwa Ibom State Government had since 1997 published in its Gazette No.ISBN 978 – 2875-31-7 the Government white paper on the sharing of Assets and liabilities for the old and newly created Local Government Areas in Akwa Ibom State. Attached herewith and marked as Exhibit “A” is the Certified True Copy of the aforementioned document.

7. That by Exhibit “A” attached pending cases are to be handled by the Local Government Councils according to the subject matter which gave rise to the claims.

8. That the 2nd Defendant is in charge of Ibesikpo Communities and the said contract was executed in its Area of authority for the benefit of the indigenes.

9. That by Exhibit “A” attached the 2nd Defendant is the only party to continue the defence of this suit.

10. That the 1st Defendant had been discharged by Exhibit “A” attached hereto.”

Dr Etim J. Ukpo, the Managing Director of Idito Fisher Nigeria Ltd deposed to a counter affidavit on 22-04-2005 urging the Court to strike out paragraphs 7, 9, and 10 of the affidavit of Francis Okure for offending provisions of the Evidence Act. Furthermore, that the Court should dismiss the application since the Government white Paper (Exhibit “A”) was not backed-up by any statute to give it legal inspiration for the purpose used herein. On 17-04-2007 the learned trial Judge ruled as follows:

“Since the issue in the instant case is whether there was a breach of contract by the 1st defendant by virtue of its aforestated letter to the plaintiff therefore, it is obvious that for the question of the breach of contract in the case to be effectively and completely settled and or determined, the presence of the 1st defendant as a co-defendant in the case is crucial and fundamental. See Rinco Const Co. vs Veepee Ind Ltd (supra) 91 held 5 wherein the Court said inter alia that anyone whose presence is crucial and fundamental to the resolution of a matter before the Court must be made a party to the proceedings.

There is a legal nexus between the applicant and the plaintiff/respondent deserting the retention of the 1st defendant/applicant as a co-defendant in this case. See also Expso Ltd. vs Patab Enterprises Ltd (1999) 1 NWLR (Pt.591) 449.

For the above reason therefore, I agree with learned Counsel for the plaintiff/respondent that the 1st defendant/applicant is a necessary party whose joinder in this suit is proper, crucial and fundamental to the determination of the issues of the breach of contract in this suit.

Having held as above therefore, I deem it (sic) necessary to further consider the other issues raised in this application at this stage of the proceedings. They shall be appropriately dealt with in the hearing of the substantive case.

This being the case therefore and having held that the 1st defendant/applicant is a necessary party in this case, this application fails and it is hereby dismissed with N2,000.00 (two thousand Naira) cost assessed in favour of the plaintiff/respondent. ”

See page 44 lines 29-36 and page 45 lines 1-13 of the printed record.

From this ruling emanated this appeal.

Appellant’s brief of argument was filed on 22-10-2009 while the 1st Respondent filed brief on 09-02-2010. Though served the processes the 2nd Respondent did not file any brief of argument and neither was she represented at the hearing of the appeal. When the appeal came up for hearing on 16-11-2011 Counsel present adopted their respective briefs of arguments. Learned Counsel to the appellant formulated the following issues for determination:

“(i) Whether Exhibit “A” has any legal effect and therefore binding on the parties in this suit?

(ii) Whether there was in fact, a nexus between the Applicant/Appellant and the Respondent, deserting the retention of the Appellant as a Co-defendant in this suit?

(iii) Whether the learned trial Court was entitled to adopt and rely on the facts/evidence supplied in the address of Counsel for the plaintiff/respondent in coming to a conclusion/decision in this application.”

The 1st Respondent identified the following issue for determination:

“2.1. Whether the lower Court was right to hold that the Appellant is a necessary party in suit No.HU/13/1997 and dismissed the Appellant’s motion which sought to strike out the Appellant’s name from the substantive suit.”

The appellant’s learned Counsel relied on the authorities of Adefarasin vs Dayekh (2007) 11 NWLR (Pt.1044) 89 at 116-117 and Peenok Investment Ltd vs Hotels Presidential Ltd (1982) 12 SC 1 to argue that a necessary party in any litigation is one who is to be bound by the result of the litigation. Counsel argued that by virtue of Exhibit “A” which is the White Paper issued by the Government of Akwa Ibom State showing how the assets and liabilities of old Local Governments have to be shared with newly calved ones, the appellant would not be bound by the result of the judgment of the trial Judge since the projects in question are located within the domain of Ibesikpo Asutan Local Government. The only wise step to take is to save the appellant the cost of unnecessary litigation by having her name struck out from the proceedings.

Learned Counsel to the 1st Respondent argued that the appellant is a necessary party for the effective and complete determination of the issues in controversy as held by the learned trial Judge. Counsel contended that it was the appellant and the 1st Respondent/plaintiff that had entered into the contract. The breach occurred before the 2nd defendant/Respondent was created. The appellant was therefore a necessary party in the proceedings. Counsel referred to Registered Trustees, N.A.C.H.P.H. vs M.H.W.U.N. (2003) All FWLR (Pt.412) 1013 at 1028; Peenok Investment Ltd vs Hotels Presidential Ltd (1982) 3 FNR 376 at 377 and paragraphs 2 and 4 of the affidavit in support of the appellant’s application for the striking out of her name from the proceedings.

Exhibit “H” is the agreement between “The Chairman, Uyo Local Government, Uyo in Akwa Ibom State of Nigeria” of the one part and “Dr Etim J. Ukpo M. D., Idito Fisher Nigeria Ltd” of 145 Oron Road of the other part for “(1) Electrical Stringing of Cables, Installation of Transformers and Commissioning of Rural Electrification Project in Ibesikpo Communities/Electrification of Ibesikpo in Uyo Local Government Area” of Akwa Ibom State duly initialed by the representatives of the parties in the presence of witnesses dated 27th August, 1992. At this, time Ibesikpo Asutan Local Government had not yet been carved out of Uyo Local Government Area, and was not a party, to the agreement. It was Uyo Local Government that terminated the agreement on 10th day of May, 1996. Ibesikpo Asutan Local Government came into existence on 29th May, 1999. See Section 320 and the First Schedule to the Constitution of the Federal Republic of Nigeria, 1999.

Generally speaking if there is a breach of an agreement it was caused by the appellant on 10th May, 1996 and not Ibesikpo Asutan Local Government. On that day the plaintiff’s right of action accrued against the appellant. The statement of claim determines the cause of action and when it arose. See Ogbimi vs Ololo (1993) 7 SCNJ (Pt.2) 447; Nasiru Bello vs Attorney-General of Oyo State & Ors (1986) 5 NWLR (Pt.5) 828; Uwaifo vs Attorney General (1982) 7 SC 124. Adeyeye vs Ajiboye (1987) 3 NWLR (Pt.31) 432 and Adeyemi vs Opeyori (1976) 9 & 10 SC 31 at 44. Only parties to an agreement can rightly or wrongly terminate it. Secondly, only parties to the contract can sue or be sued upon its breach. In Nigeria LNG Ltd vs African Development Insurance Co. Ltd (1995) 8 NWLR (Pt.416) 677 Uwaifo, JCA, (as he then was) held at page 693 that:

“…. as a general rule only a person who is a party to a contract can sue on it even in circumstances where the contract gives him some benefit or right under it and purports to entitle him to sue upon it. See Ikpeazu vs African Continental Bank Ltd (1965) NMLR 374 at 379 and Lagos State Development and Property Corporation vs Nigerian Land and Sea Foods Ltd (1992) 5 NWLR (Pt.244) 653 at 669, both relying on Dunlop Pneumatic & Co. Ltd (1914-1915) All E.R. Rep. 333 at 334 per Viscount Haldane L.C. The respondent in the present case cannot in any way rely on an arbitration clause in an agreement to which it is not a party. It cannot claim the benefit of that clause in a motion by it to frustrate an action against it by the plaintiff/respondent”

In Union Beverages Ltd vs Pepsicola International Ltd (1994) 3 NWLR (Pt.330) 1 at 17 paragraphs “E-F” Adio, JSC, held that:

“…. If a complaint is made against a person in an action and the questions or issues involved in the complaint cannot be effectually and completely determined or settled in the absence of the person, such a person is a necessary party and ought to be joined in the suit. See Uku vs Okumagba (1974) 3 SC 35. The purpose of joining a particular person as a party is to ensure that that person is bound by the result of the action. That is the only way in which the fundamental questions in the action can be effectually and completely settled or determined. See Osunrinde vs Ajamogun (1992) 6 NWLR (Pt.246) 156.”

Again in Rinco Construction Co. Ltd vs Veepee Industries Ltd & Or (2005) 9 NWLR (Pt.929) 85 Niki Tobi, JSC, held at page 100 that:

“…Anyone whose presence is crucial must be made a party to he (sic) proceedings. See D. O. Ogbene and Sons Ltd vs Amoruwa (1985) 3 NWLR (Pt.32) 856. The only reason which makes a necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled therefore must be a question in the action which cannot be effectively and completely settled unless he is a party. See Expso Limited vs Pafab Enterprises Limited (1999) 1 NWLR (Pt.591) 449.”

Lastly, in Kalu vs Uzor (2004) 12 NWLR (pt.886) 1 at 33 the Supreme Court explained that:

“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. In other words, the question to be settled in the action between the existing parties must be a question, which cannot be properly settled unless they ore parties to the action instituted by the plaintiff.”

The plaintiff claimed “jointly severally” against the defendants in paragraph 18(1)(a) to (e) of the Amended Statement of Claim making the appellant a necessary party to the suit instituted by the 1st Respondent. For the proceedings to be properly dealt with by the learned trial Judge in determining if a breach had occurred and the 1st Respondent ought to be damnified in damages the appellant has to be a party in the law suit.

Learned Counsel to the appellant further made reference to the White Paper issued in 1997 by the Akwa Ibom State Government regarding the sharing of Assets and Liabilities for the old and newly created Local Government Areas titled “Official Document No.6 of 1997”. That the projects in question are situate or located within Ibesikpo Asutan Local Government Area hence by items 12.8 of Exhibit “A” liabilities in respect of these projects is the responsibility of the Local Government.

Learned Counsel to the appellant relied on Attorney-General of Plateau State vs Attorney-General of Nasarawa State (2005) 9 NWLR (Pt.930) 421 to buttress his submission that since the projects for which Uyo Local Government entered into the contract are in Ibesikpo Asutan Local Government the appellant is not a necessary party. My humble opinion is that the case has nothing to do with joinder of parties in a pending suit. In that case two projects were involved, namely, Awe-Tunga-Obi road and Doma Water Projects. Contracts for their construction were awarded by the Plateau State Government to two different companies. When the Government defaulted in payment each company instituted an action and obtained judgment against the Government of Plateau State. This was before the creation of Nasarawa State out of Plateau State. The two projects were located in Nasarawa State when it came into existence. One of the companies attached the property of the Plateau State Government for the sum of N4m. To forestall their sale Plateau State Government paid but sought reimbursement from Nasarawa State Government. When that failed Plateau State Government filed a suit in the Supreme Court, seeking a declaration that the projects being in Nasarawa State she should be reimbursed. Plateau State exhibited the judgment as an exhibit. At page 434 of the judgment Oguntade, JSC, held that:

“…I declare that by the guideline on the sharing of assets and liabilities as between the plaintiff and the defendant, projects sited in each of the two States vest in the State where the project is situate; and that it is the State in which a project is situate that bears responsibility for meeting the outstanding liability on such projects.”

But the Supreme Court refused to make an order in respect of the project that the Plateau State Government had failed to exhibit the judgment in support of her claim. Oguntade, JSC, held at page 434 as follows:

“I need to observe here that although the plaintiff in paragraph 4(a) of the affidavit verifying the facts referred to a judgment for 110,000.00 (dollars) given against the Plateau State Government in 1993, no such judgment has been produced before this Court. Only the judgment given by a Court can be relied upon as conclusive proof of the matters decided between parties to a case. See Section 54 of the Evidence Law… As I observed earlier, the plaintiff has not produced before us the judgment in suit No.PLD/J/368/1993 delivered in 1993 and I am therefore unable to grant plaintiff’s claim 3 in specific terms. It seems to me however, that the claim granted in paragraph 1 above adequately covers all liabilities on project sited in Nasarawa State.

In the final conclusion, there will be judgment in plaintiff’s favour as stated above. I make no other as to costs.

See also Attorney-General of Abia State vs. Attorney-General of the Federation & Ors (2005) 12 NWLR (Pt.940) 452 at 506 per Ejiwunmi, JSC.

The plaintiff/1st Respondent has to produce a valid judgment from a Court of law to show liability against the appellant for Exhibit “A” (the white paper) to come into operation.

Item 12.6 of Exhibit “A” reads as follows:

“12.6 JUDGMENT DEBTS/COURT CLAIMS

(i) Debts arising from decided cases should be tied to the particulars of claim and be settled by the Local Government Council to which the claim relates.

(ii) Pending cases to be handled by the Local Government Councils according to the subject matter which gave rise to the claims.

GOVERNMENT DECISION

Government accepts this recommendation. ”

Item 12.8 of Exhibit 664.” reads as follows:

“12.8 CONTRACTUAL LIABILITIES

“(i) Liabilities in respect of projects should be settled by the local Government Councils where these projects are located.

(ii) Liabilities on joint projects should be jointly and severally shared in the ratio of 55% for former Local Government Councils and 45% for the newly created ones.

GOVERNMENT DECISION

Government accepts this recommendation.”

Exhibit “A” is an internal arrangement arrived at by Akwa Ibom State, Government in 1997 without input from the plaintiff/1st Respondent to enable the Local Government Councils in question determine how to settle their contractual liabilities indebtedness when determined by Courts of law. The issue whether there was an award of a contract and a breach by Uyo Local Government would be firstly determined by the learned trial Judge before the question of liability/indebtedness by Ibesikpo Asutan Local Government will arise. That makes Uyo Local Government a necessary party in order that the Court will determine why the contract was terminated, rightly or wrongly. Once the debt is established Uyo Local Government will settle out and Ibesikpo Local Government Council will settle the claim by virtue of paragraph 12.6(i) and (ii) of Exhibit “A”.

On the whole learned Counsel to the appellant has not succeeded in convincing me that the learned trial Judge erred in law in arriving at the conclusion that the appellant is a necessary party in the proceeding in the lower Court. Accordingly, this appeal fails and is dismissed. I make no order as to costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph T. Tur, JCA

For an action to be properly constituted so as to vest jurisdiction on the court to adjudicate on it, there must be a competent plaintiff and a competent Defendant.

One may ask “who is a necessary party.”

It has been held severally that a plaintiff is duty bound to bring before a court all parties that are crucial to the resolution of his case and failure to do so, the action is liable to be struck out. Adisa vs. Oyinlola (2000) 6 SC Pt.11 page 47.

Where a plaintiff fails to join the persons against whom he is seeking a relief, the action in respect thereof would be struck out on the ground that it is improperly constituted. Ayorinde vs. Oni (2000) 2 SC page 33, Obla v. Otagoyi (2007) 5 NWLR Pt.1027 Page 304.

It is a rule that persons against whom complaints are made in an action must be made parties to the suit. Mobil Oil Plc v. DENR Ltd (supra).

It is therefore very important to the plaintiff that necessary parties ought to be included as parties for the successful conclusion of an action. This cannot be over emphasized.

For these and the more robust reasoning and conclusions of my learned brother I also dismiss this appeal. I abide by all the consequential orders as contained in the lead judgment including that as to costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading in its draft form, the lead judgment of my learned brother, JOSEPH TINE TUR, J.C.A. just delivered dismissing this appeal.

The appellant was the 1st defendant in suit No.HU/13/97 commenced by the 1st respondent through the writ of summons dated 10th January 1997 but filed on 13th January, 1997 at the Uyo Division of the High court of Akwa Ibom State. The 2nd respondent was later joined as 2nd defendant by the order of the same High Court (thereinafter called the lower court). By the motion filed on 2nd April, 2003, the appellant had sought the order of court striking its name out of the suit, and after hearing the parties with respect to that motion, the lower-court in its ruling delivered on 17th April, 2007, dismissed the application with costs of N2,000.00. The lower court had found as follows inter alia:

“There is a legal nexus between the applicant and the plaintiff/respondent deserving the co-defendant in this case. For the above reason therefore, I agree with learned counsel for the plaintiff/respondent that the 1st defendant/applicant is a necessary party whose joinder in this suit is proper, crucial and fundamental to the determination of the issue of the breach of contract in this suit.”

Dissatisfied with the above ruling of the lower court, the appellant filed Notice and Grounds of Appeal on 24th April, 2007 with three grounds of appeal, and in the Appellant’s Brief of Argument settled by V. B. Akpan Esq. of counsel, deemed filed on 9th February, 2010, the learned counsel raised three issues the most germaine of which is:

“Whether there was infact, a nexus between the Applicant/Applicant and the Respondent, deserving the retention of the Appellant as a co-defendant in this suit?”

In his argument on this issue, the learned counsel for appellant submitted that what makes a party a necessary party to a suit is for such a party to be bound by the outcome of the judgment that will be delivered in the suit, and where the question in controversy cannot be effectively settled unless such a person is made a party, citing, Adefarasin vs. Dayekh (2007) 11 NWLR (Pt.1044) 89; Peenok, Investment (1982) SC 1. The learned counsel argued that the appellant who had no liability whatsoever over the projects involved in the contract between the parties, was not a necessary party to the suit since it will not be bound by any judgment obtained in the suit.

The 1st Respondent’s Brief of Argument was settled by Edem Akpan Esq. and filed on the February, 2010.

On the issue raised by the appellant as stated above, the learned counsel for 1st respondent submitted that as it was the appellant that initiated and terminated the contract which formed the basis of Suit No.HU/13/97, the appellant was a necessary party without whose presence the court could not judicially and judiciously determine the party who should bear liability arising from the breach of contract which had, existed before the 2nd respondent, Ibesikpo/Asutan Local Government came into being. He cited Registered Trustees, N.A.C.H.P.N. vs. M.H.W.U.N. (2008) All FWLR (Pt.412) 1013.

Now as disclosed in the Amended Statement of Claim of the 1st respondent filed on 20th June, 2006, at pages 2-5 of the record of appeal, the claim at the lower court was for:

“The sum of N15,000,000.00 (Fifteen Naira) (sic) being Special and General Damages for wrongful terminal Defendants of the contract with the plaintiff entered on 27th August, 1992 at Uyo for the Electrical Installation project of Ibesikpo Communities.”

In the alternative, the 1st respondent sought declarations and injunctive order as well as order for payment of N8,328,320.00 quantum merit and interest at the rate of 21% from 10th May, 1996 till judgment, all in respect of the same contract.

In paragraphs 2, 3 and 12 of the Amended statement of Claim, the 1st respondent had averred as follows:

“2. The 1s Defendant had entered into contract with the Plaintiff for the Electrical wiring and Electrification of various communities in Ibesikpo, which was then in Uyo Local Government Area. The 2nd Defendant was subsequently carved out of the 1st Defendant. Assets and Liabilities were also shared between them.

3. The said contract was made on 27th August, 1992 and signed by the Managing Director on behalf of the Plaintiff on the one hand and the Defendants on the other at the sum of N2.5 Million Naira. A letter of Award dated 12th August, 1992 preceded the formal Agreement itself. Moreover the Defendants in August 2, 1993 reasonably reviewed plaintiff’s cost of labour to N5 Million. The projects are located within the Local Government of the 2nd Defendant who also uses them.

12. However on 10th May, 1996 the Defendants purported to determine the contract with the plaintiff with effect from 16th May, 1996, citing various untenable and veiled reasons thereof. The plaintiff however discovered that before then the Defendants had already on the 14th May, 1997 considered on Afct Consultants Ltd. for the job.”

It is to be noted that in paragraph 4 of the Affidavit of Francis Okure on page 18 of the record of appeal in support of the appellant’s motion, the deponent had stated thus:

“That the cause of action in this suit arose on 10th May, 1996 when the 1st Defendant purportedly terminated the Electrical installation contract of Ibesikpo Communities awarded to the plaintiff on 27th August, 1992.”

It thus becomes obvious that the real dispute to be settled in the suit concerns the termination of the contract awarded to the 1st respondent on 27th August, 1992. The award of the contract and its purported termination were allegedly done by the appellant before the 2nd respondent came into being. There can be no doubt that this question of termination of the contract can only be effectually and completely settled when the appellant is made a party to the suit. The appellant is therefore not only a proper party, but also a necessary party to the suit of the 1st respondent as well explained by the supreme court in Green vs. Green (1987) 2 N.S.C.C. 1115 per Oputa JSC at 1123 that “proper parties are those who though not interested in the Plaintiff’s claim, are made parties for some good reasons e.g. where an action is brought to rescind a contract any person is a proper party to it who was active or concurred in the matters which gave the plaintiff the right to rescind … 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. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.”

From the foregoing I agree with conclusion of my learned brother in the lead judgment that this appeal lacks merit based on the fuller reasons advanced therein.

I therefore dismiss the appeal with no order as to costs.

Appearances

Itoro U. RobertFor Appellant

AND

Godwin UfofiaFor Respondent