‘No Adjudication Without Parties’ Presence’

In the Supreme Court holding in Abuja on Monday December 13, 2010 before their Lordships Justice DohiruMusdapher, Justice of Supreme Court, Ibrahim Muhammed, JSC, Christopher Chukwume Eneh, JSC, John Fabiyi, JSC, Olufunlola Adekeye, JSC.

Suit No. SC 194/2010

Between

Hon Martin Okonta } .. Appellant

And

Kingsley Nonye Philips } Respondent

& ORS.

FACTS

The first respondent as plaintiff before the Federal High Court Abuja commenced an action by Originating Summons against some defendants.                 The first respondent claimed that he was the nominated candidate of Peoples Democratic Party to contest as a representative for Ika South Constituency into the Delta State House of Assembly. The seat being contested by the first respondent in court was won by the appellant – Martin Okonta, who was already sworn in as a member representing Ika South Constituency in the Delta State House of Assembly.                      The Federal High Court did not deem it fit to join the appellant to that action regardless of the fact that there were relevant portions of the Originating Summons which made particular reference to the appellant. The trial court eventually granted the declaratory reliefs in the Originating Summons.

As the judgment of the Federal High Court in granting the declaratory reliefs of the Plaintiff/Respondent adversely affected the appellant, he applied to the Court of Appeal to be joined as an interested party. The application was initially granted. The first respondent filed a cross appeal to the appellant’s appeal. The Court of Appeal allowed the cross-appeal and restored the plaintiff/cross-appellant as the candidate for the election into the Delta State House of Assembly representing Ika Constituency. The Court of Appeal, however, inter alia raised the issue that the appellant was not a necessary party to the proceedings at the Federal High Court and also made orders which placed the first respondent in the office being occupied by the appellant without hearing him on the issue.

Dissatisfied with the decision of the Court of Appeal, the appellant appealed to the Supreme Court.

ISSUE

Whether the appellant is a necessary party that ought to’ have been joined by the trial court.

Held, unanimously allowing the appeal.

On whether a court has jurisdiction to make an order against a party who is not joined as a party. A court has no juridiction to make an order which affects the interest of a person who has not been joined as a party.

On the reason for joinder of a necessary party

The fundamental reason which makes it necessary to make a person a party to an action is to make him bound by the result , of the action.

On determination of whether a person is a necessary party.

In determining who is a necessary party, what to consider is, whether the question in the action cannot be effectually and completely settled unless the person is made a party.

“There are overwhelming facts before the court to indicate that the issue of substitution between the appellant and the first respondent could not have been effectually and completely settled without joining the appellant.

It clearly amounts to a breach of his fundamental rights to fair hearing by virtue of Section 36 (1) of the 1999 Constitution not to have joined him at every stage of the proceedings at the Federal High Court. The action at the The Federal High Court was incompetent and ought to be struck out. The decision of the lower court in holding that he was not a necessary party was glaringly wrong and this court shall not hesitate to set same aside ;and we hereby set it aside. Consequently, the decisions of the Federal High Court, Abuja and the Court of Appeal, Abuja were incompetent. “

“The appellant was a necessary party who was not joined at the trial court. Such was in breach of Section 36(1), 1999 Constitution. The action at the trial court was incompetent. Same is hereby struck out. The decision of the Court of Appeal (Court below) is hereby set aside.

Olufunlola Oyelola Adekeye, JSC (Delivering the lead judgment), – This is an appeal against the judgment of the Court of Appeal, Abuja, delivered on May 12, 2010. By way of brief background of the facts, the matter was commenced at the Federal High Court, Abuja by Originating Summons. The Plaintiff -before the Federal High Court- now the first ‘respondent in this appeal, Kingsley Nonye Philips, claimed that he was the nominated candidate of the Peoples Democratic Party to contest as a representative for Ika South Constituency into the Delta State House of Assembly. The seat being contested by the first respondent in court was won by the appellant -Martin Okonta, who was already sworn in as a member representing Ika South Constituency in the Delta House of Assembly. The Federal High Court did not deem it fit to join the appellant in this case to that action, regardless of the fact that there were relevant portions of the Originating Summons which glaringly made particular reference to the appellant as follows:

“That the plaintiff in the above mentioned struck out action contested the primary election with the plaintiff and in the application lost to the plaintiff. His name is Martin Okonta”

That the plaintiff was surprised to hear from the Asaba office of the second defendant about a letter of substitution written by the first defendant to the second and third defendant substituting his name for the said Martin Okonta on February 5, 2007. The plaintiffs were only allowed to read the letter but refused a copy of same as the office had only a few fax copy which could be read with some difficulty.”

“That the first defendant’s application as contained in the letter dated February 5, 2007, does not meet the requirement of the law for substitution of the plaintiff to contest the April, 2007 elections under the platform of the first defendant in Delta State.

“That except the defendants are constrained, they will proceed to act pursuant to the application of the first defendant to substitute the plaintiff with Martin Okonta as the first defendant’s candidate for the Ika South Constituency slot of the Delta State House of Assembly thereby precluding the plaintiff from contesting in the aforementioned constituency. “

As the judgment of the Federal High Court in granting the declaratory reliefs of the plaintiff/first respondent adversely affected the appellant, he applied to the Court of Appeal to be joined as an interested party. The application was initially completely granted. The first respondent cross-appealed. The lower court allowed the cross-appeal and restored the plaintiff/ cross-Appellant as the Appellant/Cross-Respondent’s candidate for the election into the Delta State House of Assembly representing Ika Constituency. The lower court, however, interalia raised the issue that the appellant was not a necessary party to the proceedings at the Federal High Court and also made orders which placed the first respondent in the office being occupied by the appellant without hearing him on the issue. This formed the germane and core issue for determination in this appeal. It is trite law that it is only when proper parties are before the court which makes a court competent to adjudicate on the suit. The issue of necessary parties being before the court had been considered in various decisions of the court. A court has no jurisdiction to make an order which affects the interest of a person who has not been joined as party.

The fundamental reason which makes it necessary to make a person a party to an action is to make him bound by the result of the action.

Therefore, in determining who is a necessary party, what to consider is, whether the question in the action cannot be effectually and completely settled unless the person is made a party.