ABASIEKONG v. PDP AKWA IBOM STATE & ORS (2021)

ABASIEKONG v. PDP AKWA IBOM STATE & ORS

(2021)LCN/15185(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, March 17, 2021

CA/C/20/2021

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

HON. DICKSON FRANK ABASIEKONGAPPELANT(S)

And

PEOPLES DEMOCRATIC PARTY, AKWA IBOM STATE 2. ISRAEL UWEM IDAISIN 3. AKWA IBOM STATE INDEPENDENT ELECTORAL COMMISSION (AKISIEC)RESPONDENT(S)

RATIO

DUTY OF THE COURT WHEN A PARTY TO AN ACTION IS NOT A NON-JURISTIC PERSON

Where it is obvious that a party is not a legal person the matter can be dealt with without much ado and the non-juristic person struck out or the action struck out if such a “party” is the plaintiff. See Bank of Baroda v. Iyalabani Co. Ltd. (2002) LPELR – 743 SC. PER JAMES SHEHU ABIRIYI, J.C.A.

IMPORTANCE OF THE ISSUE OF JURISDICTION

It is the law that the question of jurisdiction is so fundamental that it should be determined first by the Courts before starting any proceeding. If the Court proceeds without jurisdiction, all proceedings however well conducted amount to a nullity. See AG. Lagos State v. Dosunmu (1989) 9 NWLR (pt.111) 552 SC.; Jeric Nigeria Limited v. U.B.N. Plc (2000) 12 SC (pt.11) 133 and Nnonye v. Anyichie (2005) 2 NWLR (pt.910) 623 SC. PER JAMES SHEHU ABIRIYI, J.C.A

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling delivered on 1st December, 2020 in the High Court of Akwa Ibom State holden at Ndinya Ikot Imo.

The Appellant took out a writ of summons against the Respondents claiming some reliefs which include a declaration that the 2nd Respondent was not qualified to represent the 1st Respondent as her candidate in the Local Government Election into the office of chairman, Ini Local Government.

The 1st Respondent raised an objection and sought for an order striking out the 1st Respondent as it is not a juristic person.

The Court below considered arguments of the parties and struck out the name of the 1st Respondent.
The Appellant immediately sought leave of the Court below to appeal against the ruling. It was this Court that eventually granted leave to the appellant to appeal against the ruling. Appellant was ordered to file the notice of appeal within fourteen days. The order was made on 11th January, 2021 and the Appellant filed the notice of appeal on 13th January, 2021. The notice of appeal contains two grounds of

appeal. From the two grounds of appeal, the Appellant in his brief of argument filed on 23rd January, 2021 presented the following two issues for determination.
(i) “Whether there was any evidence before the Court warranting the learned trial Judge to hold that the 1st Respondent was Not a Juristic person” (Ground 1).
(ii) “Whether the Learned Trial Judge was right to ignore the issue raised by the Appellant touching upon the competency of the Preliminary Objection itself” (Ground 2).”

The 1st Respondent in a 1st Respondent’s brief of argument filed on 8th February, 2021 formulated the following lone issue:
“Whether the lower Court was right when it held that the 1st Respondent sued as PEOPLES DEMOCRATIC PARTY AKWA IBOM STATE is not a juristic person and struck out the name of the 1st Respondent. (from Appellant’s Ground One).”

The 2nd Respondent in a 2nd Respondent’s brief filed on 4th February, 2021 also formulated a single issue for determination.
WHETHER THE “PEOPLES DEMOCRATIC PARTY AKWA IBOM STATE” IS THE SAME THING AS THE REGISTERED NAME “PEOPLES DEMOCRATIC PARTY (PDP)”?

The 3rd Respondent filed no brief and was not represented in Court even though served hearing notice on 22nd February, 2021 against 9th March, 2021 when the appeal was heard.

On issue 1, learned counsel for the Appellant submitted that there was no evidence on which the Court below held that Peoples Democratic Party, Akwa Ibom State is not a juristic person. It was contended that an officer of the 1st Respondent should have, in an affidavit stated the correct name if any of the 1st Respondent.

In another breath, learned counsel for the Appellant argued that the Court below ought to have ordered for pleadings and hear some evidence before ruling on the issue of jurisdiction and that the 1st Respondent did not even file a statement of defence.

The 1st Respondent, it was further contended, was supposed to produce its certificate of incorporation to show its correct name. This it did not do, leaving the Court below to engage in speculations. The Court was referred to Apostolic Church Ilesha v. A.G. (Mid-West) 1972 4 sc 150. It was submitted that the onus was on the 1st Respondent who alleged that the 1st Respondent

is not a juristic person to produce her certificate of incorporation. This it failed to do, leaving the Court below to embark upon speculations as to the proper or correct name of the 1st Respondent.

On issue 2, learned counsel for the Appellant pointed out that the name of the 1st Respondent in the notice of conditional appearance is “People Democratic Party, Akwa Ibom State.” It was the contention of the Appellant’s counsel that this means that it was not the party sued that raised the preliminary objection. Therefore, the preliminary objection was incompetent.

Learned counsel for the 1st Respondent submitted that the Appellant erred in law by suing a non-juristic person, the 1st Respondent. It was submitted that litigation can only be maintained against a juristic person either natural or artificial. The Court was referred to Ataguba & Co. v. Gura (2005) LPELR – 584 SC.; U.B.A. Plc v. Gostar Investment Co. Ltd. (2018) LPELR – 44880 CA; Anyaegbunam v. Osaka (2000) 5 NWLR (pt. 657) 386; Abegunde v. Ondo State House of Assembly & Ors. (2015) LPELR – 24588 SC and Accord v. INEC & 4 Ors. (2015) LPELR

– 25674 CA. Learned counsel for the 1st Respondent pointed out that it entered a Conditional Appearance for Peoples Democratic Party sued as Peoples Democratic Party, Akwa Ibom State. The Court was referred to page 39-42 of the record.

It was submitted that the Appellant did not challenge the submission of 1st Respondent’s counsel that the name of 1st Respondent is Peoples Democratic Party not Peoples Democratic Party, Akwa Ibom State which amounted to an admission. The Court was referred toNwankwo & Ors. v. Yar’Adua & Ors (2010) LPELR – 2109 SC.

It was submitted that the omission of the letter “s” in the name of the 1st Respondent was a mere typographical error which did not mislead the parties. It was submitted that the nature of the error was not enough to obstruct the hearing of the preliminary objection.

The 2nd Respondent’s counsel pointed out that the 1st Respondent’s counsel timeously raised the preliminary objection but the Appellant refused to correct the error. Learned counsel pointed out that the Constitution of Peoples Democratic Party Article 1 in Chapter 1 provides that the name of the party shall be Peoples Democratic Party.

Learned counsel for the 2nd Respondent submitted that it was not necessary to file a statement of defence before raising the objection. The Court was referred to Adesoji v. Futa (2017) 9 NWLR (pt.1970) 208 at 223-224. It was submitted that if the issue of jurisdiction is raised, the Court is bound to consider it first before taking any step in the proceedings before it. The Court was referred to Elugbe v. Omokhafe (2004) 18 NWLR (pt. 905) 319 at 331-332.

Learned counsel for the 2nd Respondent submitted that the membership card of the Appellant at page 26 of the record shows the name of the 1st Respondent. Also, that in his letter to the Appeal Panel the Appellant referred to the 1st Respondent by the correct name. The letter is at page 35 of the record of appeal. From the membership card of the Appellant and the letter which he wrote, there was no dispute as to the correct name of the 1st Respondent, it was submitted.

In my view there is only one issue for determination in this appeal it is;
“Whether the Court below was right when it held that the 1st Respondent sued as Peoples Democratic Party Akwa Ibom State is not a juristic person.”

1st Respondent in this case did not need to depose to an affidavit or file a statement of defence before raising the issue of the juristic personality vel non of the 1st Respondent as contended by learned counsel for the Appellant.

It is a notorious fact that, there is no political party for a village, town or state in Nigeria. See Abegunde v. Ondo State House of Assembly & Ors. (2015) LPELR – 24588 SC where the Supreme Court stated thus:

“I agree with most learned counsel for the Respondents that a political party in the eyes of the law and under the Constitution is a corporate legal entity represented by its National Officers not sectional branches or segments which do not qualify as a Political Party.”
Peoples Democratic Party, Akwa Ibom State which the Appellant sued as a 1st Respondent is not a legal entity represented by any National Officers. It is merely a sectional branch of a party, the Peoples Democratic Party. The Appellant has a membership card of the party which he listed as one of the documents to be relied upon at the trial. It has as the name of the party Peoples Democratic Party. There is no Akwa Ibom State on the card. See page 26 of the record of appeal. The Appellant wrote a letter dated 21st August, 2020 to the chairman, Appeal Committee, Screening Committee, Peoples Democratic Party, not to Peoples Democratic Party, Akwa Ibom State. See page 35 of the record of appeal. It is clear from these two documents that the Appellant knew that the legal entity is Peoples Democratic Party and not the 1st Respondent.

To dispel his doubts, if he had any, as to the legal personality or otherwise of the 1st Respondent, the 1st Respondent both in its notice of conditional appearance and written address stated that the name of the 1st Respondent as known to law is PEOPLES DEMOCRATIC PARTY, and is the name of the party as registered by INEC. See pages 40 and 41 of the record of appeal.
It is clear from the foregoing that it is idle for Appellant’s counsel to contend that 1st Respondent should have shown her correct name and exhibit it before the Court.
In the instant case, it is obvious that the 1st Respondent is not a legal person and its name ought to have been struck out without much ado. The Court below rightly struck out the name of the 1st Respondent.

I agree with the submission of the learned counsel for the 1st Respondent that the omission of the “s” in the Peoples Democratic Party, 1st Respondent in the notice of conditional appearance was a mere typographic error; and none of the parties was misled by the typographical error. It is ridiculous for Appellant’s counsel to argue that a different party not in the action he instituted filed a notice of conditional appearance.

The only issue formulated by the Court is therefore hereby resolved against the Appellant and in favour of the Respondents.
The appeal is dismissed by me.
Parties shall bear their costs of the appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, James S. Abiriyi, JCA. I agree entirely with the reasoning and conclusion in dismissing the unmeritorious appeal.

I too dismiss the appeal.

Appearances:

Eboro,Esq. For Appellant(s)

Ebitu,Esq. – for 1st Respondent.
U. Nwoko, SAN, with him, Utibe Nwoko,Esq. -for 2nd Respondent. For Respondent(s)