Honourable Michael Dapialong & Ors. V. Rt. Honourable Simon Lalong & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

The plaintiffs who are the respondents in this appeal instituted suit No. PLD/J/451/2006 before the Plateau State High Court presided over by Nimpar J. by way of Originating Summons asking for a determination of the following questions:-

1. Whether the defendants can without the authority or authorization of the 1st plaintiff who is the Speaker of the Plateau State House of Assembly convene or arrange a meeting of the members of the Plateau State House of Assembly.
2. Whether the defendant (sic) can convene or hold a meeting of the Plateau State House of Assembly secretly or outside the official premises of the Assembly located along old Bukuru Road, Jos.
3. Whether the defendants can assume the position of the 1st plaintiff for any purpose whatsoever at a meeting not authorized or convened by the 1st plaintiff who is the Honourable Speaker of the Plateau State House of Assembly and without compliance with Section 92 of the Constitution of the Federal Republic of Nigeria, 1999 and the Rules of the Plateau State House of Assembly.
4. Whether the purported sitting of the Plateau State House of Assembly on the 5th of October, 2006 conducted by the defendants is valid in the circumstances having regard to the facts (sic) that the House was on recess and same having been adjourned sine die and a quorum was not formed.
5. Whether the 1st defendant, alone or in conjunction with the other defendants, can validly take any decisions, steps or issue any correspondence for himself or on behalf of the Plateau State House of Assembly in his purported or assumed capacity of the Speaker, Leader or Presiding Officer of the said House of Assembly.

RELIEFS SOUGHT

Upon answering the above questions in the negative by this Honourable Court, the plaintiffs seek the following reliefs:-

1. A DECLARATION that the defendants cannot without the authority or authorization of the 1st plaintiff who is the Speaker of the Plateau State House of Assembly convene or arrange a meeting of the members of the Plateau State House of Assembly.
2. A DECLARATION that the defendants cannot convene or hold a meeting of members of the Plateau State House of Assembly secretly or outside the official premises of the Plateau State House of Assembly along old Bukuru Road, Jos.
3. A DECLARATION that the defendants cannot assume the position of the 1st plaintiff who is the Honourable Speaker of the Plateau State House of Assembly and without compliance with Section 92 of the Constitution of the Federal Republic of Nigeria, 1999 and the Rules of the Plateau State House of Assembly.
4. A DECLARATION that all actions, decision (sic) or steps taken by or under the leadership of the 1st defendant in his purported or assumed capacity as the Speaker, Leader or Presiding Officer of the Plateau State House of Assembly are null, void, unconstitutional and of no effect whatsoever.
5. A DECLARATION that the purported sitting of the Plateau State House of Assembly conducted by the defendants on 5th October, 2006 is invalid, unconstitutional, null and void and of no effect whatsoever.
6. AN INJUNTION restraining the defendants from:

a. Convening a meeting of the Plateau State House of Assembly save and except with the authority or authorization of the 1st plaintiff.

b. Convening or holding any meeting of the Plateau State House of Assembly outside its official designated premises along Old Bukuru Road, Jos.

c. Assuming the position of the 1st plaintiff for any purpose whatsoever at a meeting not authorized or convened by the 1st plaintiff who is the Honourable Speaker of the Plateau State House of Assembly and without compliance with Section 92 of the Constitution of the Federal Republic of Nigeria, 1999 and the Rules of the Plateau State House of Assembly.

d. Restraining the 1st defendant from parading or continuing to parade or hold out himself as the Speaker, Leader or Presiding Officer of the Plateau State House of Assembly.

7. ANY CONSEQUENTIAL ORDER/RELIEFS to which the plaintiffs may be entitled in the circumstances.

The 1st plaintiff deposed to a 21 paragraph affidavit in support of the summons and annexed three documents marked Exhibits “A”, “B” and “c” respectively. Exhibit “A” is the Notice of Adjournment of the House sine die written by the Clerk of the House on 22nd August, 2006; while Exhibit B is the Rules of the Plateau State House of Assembly and Exhibit “C” is a letter to the Honourable Speaker of the Plateau State House of Assembly written by G.S. Pwul & Co. Solicitors at the instance of Hon. Pam Dongs and Hon. Peter Azi representing Jos South and Jos North – West Constituencies respectively in the Plateau State House of Assembly complaining about the desecration of the sanctity of the Plateau State House of Assembly.

A memorandum of conditional appearance dated 12th October, 2006 was filed by Solomon Umoh of Counsel on behalf of the defendants and on 16th October, 2006, he filed a Notice of Preliminary Objection. In support of the Notice was a 6 paragraph affidavit deposed to by Surayya S. Maigida, a legal practitioner attaching five exhibits marked “A”-“E” respectively. They are the Proceedings of the House of Assembly of 25th July, 2006 (Exhibit A & B respectively), the Hanzard of 25th & 26th July, 2006 (Exhibits “C” & “D” respectively) and Writ of Summons and Statement of Claim in Suit No. FHC/ABJ/CS/374/2006 between HON. SIMON LALONG & 13 ORS V INDEPENDENT NATIONAL ELECTORAL COMMISSION (Exhibit “E”).

In the said Notice of Preliminary Objection the defendants/applicants prayed for:-

1. An order striking out this suit for lack of jurisdiction.

Alternatively,

2. An Order dismissing this suit for being an abuse of court process.

The grounds of the objection were:

1. The Originating Summons suggest (sic) contentious issues and does not call for the interpretation of any document, accordingly, it is an incompetent process of court.
2. The plaintiffs have no locus standi to prosecute or maintain this action as they had lost their seats in the House of Assembly by operation of law and the same have since been declared vacant by the newly elected speaker of the Plateau State House of Assembly on the 5th of October, 2006. Alternatively:-

2(b) The plaintiffs lack the locus standi to question decisions of the House of Assembly in any court assuming they are indeed serving members of the House. See Adesanya v. FRN Vol. 2 ACLC pg. 1.; (1981) 1 NCLR 236

3. The reliefs sought as well as the questions posed in the originating summons are not justiciable by virtue of the provisions of Sections, 101 and 188(10) of the Constitution of the Federal Republic of Nigeria 1999. Alternatively,

The reliefs sought as well as the questions posed in the Originating Summons are not justiciable as they are indeed political questions See Sehindemi v. Governor of Lagos State (2006) 10 NWLR (Pt.987) 1.

4. There is no cause of action See Adesanya v. FRN Vol. 2 ACLC pg.1.; (1981) 1 NCLR 236.
5. The proper parties are not before the court by virtue of the provisions of Sections 92 and 95 of the Constitution of the Federal Republic of Nigeria 1999 See Oloyo v. Alegbe (1985) 6 NCLR Vol. 6 at p. 61; (1983) 2 SCNLR 35,
6. The issue as to the validity of the plaintiffs’ membership of the Plateau State House of Assembly is subjudice in Suit No. FHC/ABJ/374/06 between Honourable Simon B. Lalong and 13 Ors. v. INEC. See Exhibit “E”.

The learned trial Judge heard arguments of Counsel on the preliminary objection on 17/10/2006 and adjourned the second leg of the motion to the next day for hearing. In a reserved ruling delivered on 25/10/2006, the learned trial Judge dismissed the Notice of Preliminary objection and directed the parties to proceed with the Originating Summons. The case was later adjourned to 31/10/2006 for the hearing of the Originating summons.

The defendants who were the applicants in the Notice of Preliminary Objection were dissatisfied with the Ruling and filed a Notice of appeal on 30th October, 2006 containing 6 grounds of appeal. Because of the urgency attached to the case, this court abridged the time for filing briefs. The appellants’ brief was filed on 20/11/2006 while the respondents brief was filed on 24/11/2006. Both the appellants and respondents formulated the following six issues for determination which were distilled from each of the grounds of appeal. The issues are:-

1. Whether the learned trial Judge was right in refusing to strike out the respondents’ suit for being incompetent – Grounds 1
2. Whether the learned trial Judge was right when he held that the respondents have locus standi to institute the action – Grounds 2
3. Whether the learned trial Judge was right in refusing to hold that the respondents’ claim is not justiciable Ground
4. Whether the learned trial Judge was right in refusing to hold that the respondents’ claim discloses no reasonable cause of action. Ground 4.
5. Whether the learned trial Judge was right when he assumed jurisdiction with a view to hearing the respondents’ claim in the absence of proper parties – Ground 5
6. Whether the respondents’ claim ought not to have been struck out for being an abuse of process – Ground 6.

Notwithstanding the fact that the appellants and the respondents have each formulated six issues for determination, the real issue in this appeal is whether the learned trial Judge was right to rule that he had jurisdiction to entertain the suit. This is covered by issue No.5 in the appellants’ brief and the 3rd issue in the respondents’ brief. According to Mr. Umoh, learned counsel for the appellants, failure to bring proper parties before the court renders the action incompetent and the court will be without jurisdiction to adjudicate and grant the reliefs sought. Learned Counsel cited the following cases in support of the contention:-

Awoniyi v. Registered Trustees of Amore (2000) 10 NWLR (Pt.676) 522 at 533; Laval v. P.G.P (Nig.) Ltd. (2001) 17 NWLR (Pt.742) 393 – 406; Katiel v. Atiero (1999) 4 NWLR (Pt.597) 139 at 152; A-G., Lagos State v. A.-G., Federation (2003) 12 NWLR (Pt.833) 1 at 140. He argued that it does not lie within the powers of the respondents to institute an action to protect “the interest” of Honourable Pam Dongs and Peter Azi who authored Exhibits “D” and “C” whereby they sought to dissociate themselves from the sitting of the Plateau State House of Assembly of 5/10/06 and so the only persons that can validly challenge those proceedings should be the two Honourable members and not the respondents. He submitted that the complaint of the appellants is not related to non-joinder or misjoinder but that the appropriate persons to approach the court are not those who sued; consequently the respondents’ claim is incompetent. He further argued that it is only the Speaker of the House and by extension, the House that can be sued in respect of the proceeding or sitting of the House on 5/10/2006.

Mr. Pwul, learned Counsel for the respondents in his reply submitted that the argument by learned counsel for the appellants did not take into consideration the respondents’ complaint and reliefs sought in the originating summons. As for the contention that the respondents failed to sue the Speaker, learned counsel argued that it is conceptually impracticable and absurd for the 1st respondent who unequivocally asserted that he is the Speaker to sue himself. He argued conversely that if it is only the Speaker that can be sued, then it is only the Speaker who can sue and the appellants are at liberty to apply for the joinder of any party who, in their perception ought to be party to the suit. He therefore asserted that the proper parties are those named in the suit and referred to Green v. Green (1987) 3 NWLR (Pt.61) 480 where the Supreme Court dealt with the issue of the parties.

Parties to an action have been classified into three namely:

(a) Proper parties

(b) Desirable parties; and

(c) Necessary parties

Proper parties are those who, though not interested in the plaintiff’s claims are made parties for same good reasons and desirable parties are those who have an interest or who may be affected by the result while 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. See: Green v. Green (1987) 3 NWLR (Pt.61) 480 at 493.

The postulation above leads me to the inevitable conclusion that what determines whether the action is properly instituted is whether the parties named in the suit are the necessary parties.

Learned Counsel for the appellant relying on Awoniyi v. Registered Trustees of Amore (2000) 10 NWLR (Pt.676) 522 argued that failure to bring proper parties before the court rendered the action incompetent and this robbed the court of jurisdiction to adjudicate and grant the reliefs sought. In the originating summons, the plaintiffs/respondents who described themselves as the Honourable Speaker, Deputy Speaker and Majority Leader respectively of the Plateau State House of Assembly sought for a determination of the certain questions and reliefs which I reproduced earlier in the judgment.

I am in complete agreement with the submissions made by Mr. Pwul of counsel to the respondents that the respondents are not fighting the cause of Hon Pam Dongs and Peter Azi; neither are they claiming any reliefs on their behalf. It will be absurd for the 1st respondent who has described himself as Speaker to be denied the right to sue but be allowed the opportunity to institute an action against himself. It is indeed ridiculous to argue that the 1st respondent should sue himself. If the respondents either knowingly or inadvertently chose not to join the Plateau State House of Assembly as a defendant to the suit, no order can be made against the House but the appellants are at liberty to apply to the court for the joinder of the House and the Court suo motu can order that the House be joined as a defendant if the court deems it necessary to do so for the just determination of the issues before it. An action cannot be rendered incompetent simply because all the necessary parties have not been joined in the suit. It suffices if the parties before the court are competent parties and the cause of action if substantiated by the plaintiff entitles him to a remedy against the defendant. See: Osun State v. Dalami (Nig) Ltd. (2003) 7 NWLR (Pt.818) 72. Furthermore, the form of commencement of an action does not make it incompetent. It does not matter whether the action was begun by writ of summons or by originating summons, what is relevant is the question of justice of the case. See: FG.N. v. Zebra Energy Ltd. (2002) 18 NWLR (Pt.798) 162; Famfa Oil Ltd v. A.-G., Federation (2003) 18 NWLR (Pt.852) 453; Egbarin v. Aghoghovbia (2003) 16 NWLR (Pt.846) 380.

When a suit is commenced by an originating summons instead of writ of summons, the appropriate order to be made by the court is to direct the suit to proceed with the filing of pleadings. See Emezi v. Osuagwu (2005) 12 NWLR (Pt.939) 340. If the facts are contained in affidavits which have been controverted, the court has a duty to ask the parties to adduce oral evidence to resolve the issues in controversy. See: Falobi v. Falobi (1976) 9 – 10 SC. 1. It is not right as learned counsel for the appellants has argued that the action begun by originating summons was incompetent and ought to be struck out because of the allegation of legality raised in Exhibit “C”. I agree with the learned trial Judge that the parties to the action are necessary parties and the learned trial Judge was right to assume jurisdiction in the case.

In the ruling being appealed against, the learned trial Judge did not delve into the substantive suit apart from deciding the competency of the suit in relation to the necessary parties to sue. It will be inappropriate for me to go into the other issues raised in the appeal. I therefore hold that the appeal lacks merit and it is accordingly dismissed. I make an order of accelerated hearing of the substantive suit.

I assess costs of N10,000.00 in favour of the respondents against the appellants.

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Other Citations: (2007)LCN/2509(CA)