Hon. Martin Okonta V. Kingsley Nonye Philips & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja delivered on the 12th of May, 2010. By way of brief background of the facts the matter was commenced at the federal High court Abuja by originating summons. The plaintiff before the Federal High Court-now the 1st respondent in this appeal – Kingsley Nonye Philips claimed that he was the nominated candidate of Peoples Democratic Party to contest as a representative for Ika South Constituency into the Delta State House of Assembly. The seat being contested by the 1st respondent in court was won by the appellant – Hon. Martin Okonta, who was already sworn in as a member representing Ika South Constituency in the Delta House of Assembly. The Federal High Court did not deem it fit to join the appellant in this case to that action, regardless of the fact that there were relevant portions of the originating summons which made particular reference to the appellant as follows:

Paragraph 4 (J)

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

Paragraph 4 (K)

“That the plaintiff was surprised to hear from the Asaba office of the 2nd defendant about a letter of substitution written by the 1st defendant to the 2nd, 3rd defendant substituting his name for the said Martin Okonta on the 5th of February, 20007. The plaintiff were only allowed to read the letter but refused a copy of same as the office had only a few fax copy which could be read with some difficulty.”

Paragraph 5 (a)

“That the 1st defendant’s application as contained in the letter dated 5th of February, 2007 does not meet the requirement of the law for substitution of the plaintiff to contest the April, 2007 elections under the platform of the 1st defendant in Delta State.”

Paragraph 5 (b)

“That except the defendants are constrained they will proceed to act pursuant to the application of the 1st defendant to substitute the plaintiff with Martin Okonta as 1st defendant’s candidate for the Ika South Constituency slot of the Delta State House of Assembly thereby precluding the plaintiff from contesting in the aforementioned constituency”.

As the judgment of the Federal High Court in granting the declaratory reliefs of the plaintiff/1st respondent adversely affected the appellant, he applied to the Court of Appeal to be joined as an interested party.

The application was initially granted. The 1st respondent cross-appealed. The lower Court allowed the cross-appeal and restored the plaintiff/cross-appellant as the appellant/cross-respondent’s candidate for the election into the Delta State House of Assembly representing Ika Constituency. The lower court however inter alia raised the issue that the appellant was not a necessary party to the proceedings at the Federal High Court and also made orders which placed the 1st respondent in the office being occupied by the appellant without hearing him on the issue. This formed the germane and core issue for determination in this appeal. It is trite law that it is only when proper parties are before the court which makes a court competent to adjudicate on the suit. “The issue of necessary parties being before the court had been considered in various decisions of the court. A court has no jurisdiction to make an order which affects the interest of a person who has not been joined as party.

The fundamental reason which makes it necessary to make a person a party to an action is to make him bound by the result of the action. Therefore in determining who is a necessary party, what to consider is, whether the question in the action cannot be effectually and completely settled unless the person is made a party.

Green v. Green (1987) 3 NWLR pt. 61 pg. 480; Awoniyi v. Registered Trustees of Rosicrucian Order Armoc (2000) 10 NWLR (pt. 676) pg.522 at pg. 540.

There are overwhelming facts before the court to indicate that the issue of substitution between the appellant and the 1st respondent could not have been effectually and completely settled without joining the appellant. It clearly amounts to a breach of his fundamental rights to fair hearing by virtue of Section 36 (1) of the 1999 Constitution not to have joined him at every stage of the proceedings at the Federal High Court.

The action at the Federal High Court was incompetent and ought to be struck out. The decision of the lower court in holding that he was not a necessary party was glaringly wrong and this court shall not hesitate to set same aside and we hereby set it aside. Consequently the decisions of the Federal High Court Abuja and the Court of Appeal Abuja were incompetent. The case of the plaintiff/1st respondent and the order made by the Federal High Court are struck out. The case before the lower court is set aside. The appellant’s appeal is allowed. The appellant is entitled to the costs of appeal assessed as N50,000.00 before this court and N30,000.00 at the Court of Appeal.

SC.194/2010