Ejiofor Apeh & Ors V Pdp & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, JSC

By Motion on Notice dated and filed on October 2, 2015, the applicants herein beseeched this court with supplications for: 1. An order granting leave to substitute the names of Barrister Orji Chinenye Godwin, Chief C. C. Akalus and Chief Orji C. Orji who were the first to third respondents at the lower court with Ejiofor Apeh, Ude CeJestine and Ossai Moses, appellants/applicants in this appeal; 2. An order deeming the already filed processes of the appellants/applicants before this Honourable court as properiy filed and served; 3. And for such further or other orders that this Honourable court may deem fit to make in the circumstance. In addition to the seven-paragraph “Grounds for the Application,” the first applicant [Ejiofor Apeh] deposed to a sixteen-paragraph affidavit on the same day, October 2, 2015. Their case may be summed up as follows. They were Ward delegates for Enugu State elected on November 1, 2014. Barrister Orji Chinenye Godwin; Chief C. C Akalusi and Chief Orji C Orji represented them [the said applicants] and other elected delegates at the Federal High Court (hereinafter, simply, referred to as “the trial court”) and the Court of Appeal (throughout this ruling to be called “the lower court). Barrister Orji Chinenye Godwin; Chief C C. Akalusi and Chief Orji C. Orji, who were the first to the third respondents at the lower court, are no longer Interested in pursuing the appeal to this court, hence the need to substitute their names with the applicants. They claim to have the mandate of the other ward delegates elected for Enugu State on November 1, 2014. The proximate impulsion to their application before this court could be found in the facts deposed to in paragraphs 3 – 13 of the Affidavit sworn to by Ajiofor Apeh as aforesaid. When the application came up for hearing on October 27, 2015, Yusuf Alii, SAN, A. A. Adelodun, SAN and K. K. Eleja, SAN, who appeared with other counsel for the applicants, adopted the written address in support of the Motion. Only a sole issue was identified in the said address for the determination of the application. It was couched thus: Whether this Honourable court has the power to grant this application in the circumstances of this case? He pointed out that granting an application of this nature is within the unreserved power of this court. He explained that the appellants/applicants are among the delegates represented at the trial court and the lower court; hence, the case was instituted in a representative capacity and the representative plaintiffs are no longer interested in prosecuting the appeal. He submitted that the withdrawal of the said plaintiffs from further prosecuting this appeal does not constitute a bar to the case being continued with in a representative capacity by others having interest in the instant appeal. He cited Otapo v Sunmonu [1987] 2 NWLR (pt 58) 587, 604 as authority for the view that where an action is prosecuted in a representative capacity “such an action is dominus litis with respect to the representative plaintiffs up to the point of judgement after which the people so represented can then continue to enjoy the benefits that accrued to them.’ He, equally, prayed in aid this court’s decision in Afolabi v Adekunle [1983] NSCC 398 for the view that a person suing in a representative capacity does not do so for his benefit alone but also for the benefit of all those who authorised him in that regard. In his submission, after judgement, a representative plaintiff has no power to deprive others with same interest of the benefit of the judgement if they think fit to prosecute it, citing Atanda v Olanrewaju [1998J 4 NWLR (pt 88) 394, 402. He maintained that, in that context, the applicants have the right to substitute the names of the parties who were the first -third respondents at the lower court.

SUBMISSIONS OF THE FIRST -FOURTH RESPONDENTS On his part, Dr Onyechi Ikpeazu, SAN, who appeared with other counsel for the first – fourth respondents, first drew attention to the ten-paragraph Counter Affidavit sworn to by Nanchang Ndam of the first respondent and exhibit 1 of March 15, 2015. He adopted and relied on the respondent’s written address filed on October 23, 2015. In the said address, learned senior counsel raised three issues for the resolution of the divergent responses which this application has provoked. They were framed thus: 1. Whether there is a competent appeal before the court over which this application can be foisted? 2. Whether the applicants are properly before the Supreme Court? 3. Whether the applicants are entitled to the reliefs sought in this application? On the first issue, learned senior counsel contended that there was no appeal which was initiated in due form over which an application, such as this, could be predicated. He pointed out that the suit number at the trial court as well as the appeal number-before the lower court did not disclose the persons named as Ejiofor etc as parties. He drew attention to the named plaintiffs at the trial court and the named respondents and the capacity in which they sued and responded to the appeal. He contended that the three persons in the application were neither named parties in the suit and the ensuing appeal, nor were they designated representatives of the class of individuals who initiated the action. Above all, the class represented in the existing proceedings is not described in the same manner as in the appeal before this court, he cited Order 2 Rule 8 of the Rules of this court, 2005 (as amended). He conceded that a person suing in a representative capacity does so for himself and that of others who authorised him, Afolabi v Adekunle (supra). However, he maintained that those represented could only be added or substituted with the prior leave of court. In effect, no person can, on his own, alter the parties and subsequently seek leave of court to correct a non-existent process. Put differently, a proper application must reflect the title of the case as it is in proceedings leading to the appeal and application. Thus, where the un-named parties desire to be reflected as named parties, they must bring a miscellaneous application in the existing proceeding and duly serve all the parties in the existing proceedings. Simply put, they cannot initiate an appeal in the manner they like and then seek leave to activate a void judicial process, Otapo v Sunmonu (supra) at page 591; Atanda v Olarenwaju [1988] 10 -11 SC 1, On issue two, learned senior counsel submitted that the relief sought for in this application does not seek to alter the processes filed in the lower court, the most important being the Notice of Appeal which was initiated in a defective state. Turning to the third issue, the learned SAN contended that the applicants are not entitled to the reliefs sought because they have not presented the appeal in the same representative capacity in which the suit was initiated. What is more, the original plaintiffs at the trial court who were respondent at the lower court] were not made parties to the application and as such were not served with the allegations which the applicants made against them, citing 36 (1) of the 1999 Constitution (as amended). In passing, I note here that all other arguments in the respondents’ written address verge on the substantive appeal and need not detain us here else, in addressing them, we may pre-empt the outcome of the substantive appeal, Counsel for the fifth respondent, T. M. Inuwa, who appeared with Alhassan A. Umar and C. Nnamah (Miss), who did not file any written address, associated himself with the submissions of Dr Onyechi Ikpeazu, SAN, for the other respondents. RESOLUTION OF THE ISSUE As indicated above, Dr Onyechi Ikpeazu, Learned SAN, canvassed the view that an application, such as the present one which is to substitute the names of named parties with the names of three of the un-named parties, must be founded on the subsisting processes which the named parties initiated at the trial court and defended at the lower court. Now, the appeal, which the said applicant referred to, is Appeal No SC 428/2015, initiated though the Notice of Appeal contained on pages 323 – 327 between: 1. Ejiofor Apeh 2. Ude Celestine 3. Ossai Moses (Unbehalf (sic) of other Unnamed Parties on Record) as appellants And 1. Peoples Democratic Party (PDP) 2. The National Chairman (PDP) 3. The National Secretary (PDP) 4. The Nationaf Working Committee (PDP) 5. Independent National Electoral Commission (INEC) On the other hand, the processes at the trial court, pages 3 et seq show that the Originating Summons was taken out by Barrister Orji Chinenye Godwin; Chief C C Akalusi and Chief Orji C Orji (Suing for themselves and on behalf of all the delegates elected on the 1st November, 2014 at the Ward Congress held for Enugu). That was, also, the capacity in which these named plaintiffs responded to the appeal at the lower court, pages 303 et seq. Expectedly, Onyechi Ikpeazu, SAN, for the first to the fourth respondents, [paragraph 3.04 of the Written Address] took the view that individuals are not allowed to unilaterally alter a case as constituted from the High Court. He canvassed the further view that they are mandated to maintain the same character of the case as incepted or otherwise seek leave of the court to effect an alteration in the case of transfer, transmission of interest or any other form of alteration of parties to the proceedings. He prayed in aid Order 2 Rule 8 of the Rules of this court, 1985 (as amended). Before dealing with the effect of the Order 2 Rule 8 on the present application, it may be appropriate to dispose of the character of the representative suit of the named plaintiffs at the trial court [respondents at the lower court].

CHARACTER OF REPRESENTATIVE SUITS As with all rules which eventuated from equity’s attenuation of the rigidity of the common law, the species of actions known as representative suits were evolved for the relaxation of the “Complete Joinder” rule under the common law, F. Nwadialo, Civil Procedure in Nigeria (Second Edition) (Lagos: University of Lagos Press, 2000) 110 et seq. Under the old common law practice, all parties, who were interested in a suit, were required to be present in court so that “a final end might be made of the controversy”, per Lord McNaughton in Duke of Bedford v Ellis A. C, 1, 8, (H.L) (P.C). Unarguably, the rules were too rigid for practical purposes when they had to be applied to societies or groups, The Taff Vale Railway Company v. Amalgamated Society of Railway Servants (1901) A.C 426 (H.L). Characteristically, equity, in response, evolved its own rules which were adapted to meet the difficulties presented by a multiplicity of persons interested in the subject matter of litigation. Accordingly, the rules of equity allowed some of such persons to sue on behalf of themselves and all others having the same interest. Understandably, this was done to prevent a failure of justice, The Taff Vale Railway Company v. Amalgamated Society of Railway Servants (1901) A.C. 426 (H.L). In his notable reconstruction of principles akin to the above, which Lord Penzance had articulated in Wytcheriey v. Andrews (1871) L R. 2 P and D at 328, Lord Denning, in Abuakwa v. Adanse (1957) 3 All ER 559, 563 quipped that it was a rule\ …..’founded on justice and common-sense’ for all persons with the same interest… to regard the party named on the Writ as their champion … if he wins they reap the fruit of victory. If he fails they fall with him and must take the consequences. These are the basic principles on which representative actions are founded. The rule was that, if the plaintiff sued, or any of the defendants was sued, in a representative character, is must be stated on the Writ, and must also appear in the title or heading of the Statement of Claim, Re Tottenham [1896] 1 Ch. 6/8. However, in such representative suits, both the named plaintiff and the un-named parties, that is, those they represent, are parties to the action; the only difference is that the named plaintiff, as it were, is in control of the suit [dominus litis] until the matter is disposed with at first instance, Oketie v Olughor [1995] 5 SCNJ 217, 226; Ekenma v Nkpakara [1997] 5 SCNJ 70, 88. Put differently, the named plaintiff is the sole plaintiff until judgement is given; as such he can discontinue, compromise, submit to dismissal and other things as he decides during the course of the proceedings, Otapo v Sunmonu [1987] 2 NWLR (pt 58) 587. Where, however, he falls out with the un-named or represented parties for any reason, the court has power to add or substitute any person represented, though unnamed in the representative action, and to bring him in as at the date of the original writ, Otapo v Sunmonu, (supra) approvingly, adopting Moon v. Atherton (1972) 2 QB 435; (1972) 3 WLR 57; (1972) 3 All ER 145. The powers that inhere on the named plaintiff are hedged around with limitations. For instance, he can only represent those who have given him authority to do so, and in respect of a claim in which his interest in the subject matter is common with that of those he represents. He cannot, without their authority and order of Court authorising him to do so, defend counter claims made against him in the principal action, Smith and Ors v. Cardiff Corporation (1953, 2 All ER. 1373. After judgment, he cannot deprive other persons of the same class of the benefit of the judgment if they think fit to prosecute it, Hand ford v. Storie (1825) 2 Sim. and St. 196, Re, Alpha Co (1903) J Ch 203; Re Calgary etc, (1908) 2 Ch 652, Watson v. Cave (No. 1) 17 Ch.D. 19 Cotton LJ, approvingly, adopted in Otapo v Sumonu (supra). However, the above presupposes the existence of a valid process before this court. Thus, before dealing with the question whether the applicants herein bad a commonality of interests with the named plaintiffs at the trial court [named respondents at the lower court], the issue of the applicants’ entitlement to the reliefs claimed [in the circumstances] has to be disposed of first. APPLICANTS’ ENTITLEMENT TO THE RELIEF SOUGHT Now, as it is well-known, the Notice of Appeal, as the spinal cord of an appeal, is the forensic structure on which all subsequent processes in an appellate court, such as this, derive their support, Aderigbigbe and Anor v Abidoye (2009) LPELR -140 (SC). As such, no such subsequent process can stand without the subsistence of such a valid structure in the nature of valid court processes, Oketie v. Olughor [1995] 5 SCNJ 217; Thor Ltd, v. First City Monument Bank Ltd [2002] 2 SCNJ 85; Ebokam v. Fkwenibe & Sons Trading Co. Ltd, (1999) 7 SCNJ 77. As shown above, the first applicant in this application [Ejiofor Apeh] in the Affidavit in support of the motion, deposed inter alia: … 6. That 1 know as a fact that the people that represented the appellants/applicants at the Federal High Court and the Court of Appeal are Barrister Orji Chinenye Godwin; Chief C. C. Akalusi and Chief Orji C Orji; The processes at the trial court, pages 3 et seq of the record, show that the Originating Summons was taken out by Barrister Orji Chinenye Godwin; Chief C. C. Akalusi and Chief Orji C. Orji (Suing for themselves and on behalf of all the delegates elected on the 1st November, 2014 at the Ward Congress held for Enugu). That was, also, the capacity in which these named plaintiffs responded to the appeal at the lower court, pages 309 et seq. In effect, while the title of the suit, both at the trial court and at the lower court, showed the plaintiffs as Barrister Orji Chinenye Godwin; Chief C. C Akalusi and Chief Orji C. Orji (Suing for themselves and on behalf of all the delegates elected on the 1st November 2014 at the Ward Congress held for Enugu), the- motion of the applicants, unilaterally, distorted the title of the suit. Indeed, the said motion is predicated on a process which appears on page 323 – 327 of the record, and is titled “Notice of Appeal. The parties therein are described as: 4. Ejiofor Apeh 5. Ude Ceiestine 6. Ossai Moses (Unbehalf (sic) of other Unnamed Parlies on Record) as appellants And 6. Peoples Democratic Party (PDP) 7. The National Chairman (PDP) 8. The National Secretary (PDP) 9. The National Working Committee (PDP) 10. Independent National Electoral Commission (INEC) In other words, the applicants herein usurped the prerogative of this court; that is, without the leave of this court, they imposed themselves as parties, effectively, altering the case which the named plaintiffs initiated at the trial court and defended at the lower court. With due respect to the learned Senior Advocate for the applicants, that presumptuous approach dealt the ultimate coup de grace to the applicants’ entitlement to the reliefs sought as it is violative of the well-entrenched practice of this court. It cannot be otherwise for the character of any case at its inception remains so sacrosanct that only leave of court can effect any alteration in the case of transfer, transmission of interest or any other form of alteration of the parties to the proceedings, PPP v INEC [2012] 13 NWLR (pt 1317) 215, 236 -233, H-E. Now, Order 2 Rule 8 of the Rules of this court provides as follows: 8. Notices of Appeal, applications for leave to appeal, briefs and all other documents whatsoever prepared in pursuance of the appellate jurisdiction of the Court for fifing in accordance with the provisions of these Ruies, shall reflect the same title as that which obtained in the Court of trial. [Italics supplied for emphasis] In P. P. A. v INEC [2012J 13 NWLR (pt 1317) 215, 237, this court held that, in a situation such as the present one, the “proper thing to do is to leave the parties on record intact notwithstanding the decision of the trial [court] and state (he name of the interested party and identify him as the applicant.,.” In other words, by virtue of Order 2 Rule 8 (supra), all the processes before this court must “reflect the same title as that which obtained in the trial [court].” This was not done here. I, accordingly, endorse Dr Ikpeazu, SAN’s submission that a proper application must, necessarily, reflect the title of the case as it is in the proceeding leading to the appeal and the application. If the [un-named] parties are thus seeking to have their names reflected as parties, they must bring a miscellaneous application in the existing proceeding and duly serve all the parties. This submission is in consonance with the rationale of ail binding authorities, P, P. A. v INEC (supra) at pages 236 -237, paragraphs H -E; 252, paragraphs D-H; Otapo v Sunmonu (supra). Turning to the issue of commonality or interests, it cannot ever: be gainsaid that the applicants, woefully, failed to bring themselves within the warm embrace of the requirements of the representative suits genre. From the capacity expressed on pages 323 – 327 of the record, that is, on the “Notice of Appeal,” it is not in doubt that their application fell short of the fundamental requirement of representative suits’ principle. What crystallises from the earlier exposition on the point is that the jurisprudential postulate underlying suits in representative capacity is that the person or persons suing or defending in a representative capacity must have the same interest in the proceeding, Ogamioba and Ors v. Chief Ogene and Ors [1961] All NLR 59 at 62; (1991) 1SCNLR 115. This means that the parties on record [and those they represent] must have common interest. Put differently, the subject matter must evince a common interest as opposed to diverse interests, Ukpon and Anor v Commissioner for Finance and Economic Development (2006) LPEI.R 3349(SC); common grievance and the reliefs sough- must, in their nature, be beneficial to all the representatives and those represented. The cases on this point are many, Market and Co Ltd. v. Smith and Ors v. Cardiff Corporation (1954) 1 QB 210; Nsima v. Nnaji and Ors (1961) NLR 441; Amajideogu v. Ononaku (1988) 2 NWLR (pt, 78) 614; Idise v. Williams Int. Ltd. [1995] 1 SCNJ 120; [1995] 1 NWLR (pt. 370) 142; Ukatta v, Ndinaeze [1997] 4 SCNJ 137, 139; [1997] 4 NWLR (pt. 499) 251. Others include: Oragbaide v Onitiju (1962) 1 All NLR 32, 37 citing Mark and Co. Ltd v Knight S.S. Co. Ltd (1910) K.B. 1021, per Fletcher – Moulton L J; Charter v Rigby and Co (1896) QB 113; Amachree v Newington 14 WACA 97; Ayinde and Ors v Akanji and Ors [1988] 1 NWLR (pt. 68) 70; Akporue v Okei [1973] 12 SC 137; Akpan and Anor v Commissioner for Finance and Economic Development and Anor (2006) LPELR -3349 (SC). From the above survey of binding authorities, it is obvious that similarity of interests would not suffice in the absence of a commonality of interests, Akpan and Anor v Commissioner tor rinano: and Economic Development and Anor (supra); Obiode v Orewere [1982] 1-2 SC 170, 175 – 177; Wiri v Wuche [19801 1-2 SC 1, 42-43; Afolabi v Adekunle [19S3] 2 SCNLR 141, 154; Atane v Amu [1974] 10 SC 237, 243-244. Even then, the burden is on the plaintiff [and with respect to this application, the applicants herein] to establish a commonality of interests, Atane v Amu (supra); Ogamioba v Ogherne (1961) 1 All NLR 59, 60. In alt, the applicants have a duty to satisfy this court of the commonality of their interests. This must be evidenced in the following twin prerequisites, common grievance and a relief or reliefs beneficial to all of them, Ayinde and Ors v Akanji and Ors [1988] 1 NSCC 43, approvingly, adopting Ogamioba and Ors v Oghene and Ors (1961) 1 Ail N.LR. 59, 60. As shown above, at the trial court, the named plaintiffs [who were the named respondents at the lower court] were shown as “suing for themselves and on behalf of all the Delegates elected on the 1st November, 2014 at the Ward Congress held in Enugu State. On the other hand, the applicants, at pages 323 -327 of the record, that is, in the process titled “Notice of Appeal, were: 1, Ejiofor Apeh 2, Ude Celestme 3, Ossai Moses (Unbehalf (sic:) of other Unnamed Parties on Record) as appellants As if that was not enough, in the application that yielded this ruling, the same persons were expressed as suing “for themselves and on behalf of other Ward Delegates elected for Enugu State on 1st November, 2014. In effect, the applicants have not succeeded in demonstrating a commonality of interests as required by the authorities, Akpan and Anor v Commissioner for Finance and Economic Development and Anor (supra); Obiode v Orewere (supra); Wiri v Wuche (supra); Afolabi v Adekunle (supra); Atane v Amu (supra). Yet, as already shown above, the: burden is on the applicants to establish a commonality of interests, Atari v Amu (supra); Ogamioba v Oghene (1961), Against the above background, therefore, the answer to the sole issue which learned senior counsel for the applicants framed for the determination of this application is that this court cannot grant this application in the circumstances of the muddled up processes of the applicants, P, P. A, v INEC (supra) at pages 236 -237, paragraphs H -E; 252, paragraphs D-H; Otapo v Sunmonu (supra). There is even a more fundamental issue here. As, already, indicated earlier, the applicants entreated this court “to substitute the names of Barrister Orji Chinenye Godwin, Chief C. C Akalus and Chief Orji C. Orji, who were the 1st to 3rd respondents at the lower court with Ejiofor Apeh, Ude Celestine and Ossai Moses.” Somewhat curiously, they were not served with this motion. This is rather strange. All parties to a proceeding are entitled, as of right to be served with all the court processes. Clear proof that the applicants never had the named plaintiffs [named-respondents at the lower court] in contemplation is evident from page 3 of the Motion paper. They were never listed as those to be served with the said process. Truth told, service of processes, including hearing notices from day to day, is so important that any dereliction In this regard is bound to vitiate the entire proceedings, no matter how well conducted, Onwuka v Owofewa [2001] 28 WRN 89; [2001] 7 NWLR (Pt 713) 695, 710; Foiorunsho v Shaioub [1994] 3 NWLR (pt 333) 413, 430; Mbadiniju and Ors v Ezuka and Ors [1994] 10 SCNJ 109; [1994] 8 NWLR (Pt 364) 535; Sken Consult Nig Ltd v Ukey [1981] 1 SC 6; Habib Nig Bank Ltd v Opemuiero and Ors [2000] 15 NWLR (pt 690) 315. In the instant application, as in all such cases, the named plaintiffs were not only entitled to be served with the motion paper put also the hearing notice for hearing that was scheduled for October 27, 2015. This must be so for a hearing notice is the only legal means of getting a party to appear in court, Onwuka v Owolewa (supra). Thus, failure to issue and serve hearing notice is a denial of justice. The worrisome effect is that the applicants herein (by their application) most, disingenuously, attempted to goad this court into favouring them with reliefs, which, in effect, would have amounted to a denial of the named plaintiffs’ right to fair hearing. To say the least, this would have been a most sacrilegious judicial exercise of discretion, CA.F.S. Ltd v Mallah (1998) 10 NWLR (pt 569) 16; Okafor v AG Anambra and Ors (1991) LPELR-SC.264/1998, 27-28; John A.S.C Ltd v Mfon (2007) 4 WRN 173, 188-189; Dawodu v Oiogundudu and Ors [1986] 4 NWLR (pt 33) 104, 114; Ariori v. Elemo [1983] 1 SCNLR I; Garba v. University of Maiduguri [1986] 1 NWLR (pt 18) 550. All said and done, I find no scintilla of merit in this application. According, I find that it must be, and it is hereby, struck out as being not only, wantonly, frivolous: but, utterly, vexatious. Application struck out.

SC.428/2015