APGA v. OYE & ORS CITATION: (2018) LPELR-45196(SC) In the Supreme Court of Nigeria ON FRIDAY, 13TH JULY, 2018 Suit No: SC.718/2017 Before Their Lordships: OLABODE RHODES-VIVOUR Justice of the Supreme Court MARY UKAEGO PETER-ODILI Justice of the Supreme Court JOHN INYANG OKORO Justice of the Supreme Court AMIRU SANUSI Justice of the Supreme Court SIDI DAUDA BAGE Justice of the Supreme Court Between ALL PROGRESSIVES GRAND ALLIANCE - Appellant(s) And 1. DR. VICTOR IKE OYE 2. INDEPENDENT(2018) NATIONAL LPELR-45196(SC) ELECTORAL COMMISSION (INEC) - Respondent(s) 3. INSPECTOR GENERAL OF POLICE 4. COMMISSIONER OF POLICE ENUGU STATE 5. COMRADE MIKE ALIOKE RATIO DECIDENDI 1. ACTION - NECESSARY PARTY(IES): Effect of failure to join a neccessary party in an action "The appellant had a question on the competence of the appeal which arguments thereof seem to me out of context in view of the record. To clear the air, the relevant Motion on Notice was filed 20th June, 2016 seeking leave to appeal and numbered as CA/E/358/M/2017. When the Record of Appeal from the trial Court was compiled and transmitted to the Court of appeal, the substantive appeal was numbered as CA/E/367/2017 and the order of the Court of Appeal dated 10th July, 2017 deeming the Records of Appeal as properly complied and transmitted which CA/E/367/2017 became the extant appeal number and took a retrospective effect, thereby regularizing the Notice of Appeal earlier filed with its fault lines. See Williams v. Mokwe (2005) 14 NWLR (Pt. 945) 249 at 267; Prince Biyi Poroye & Ors v. Makarfi & Ors (2017) LPELR-42738. Having settled the matter of competence of the appeal which was properly before Court, the next issue is whether the Court below was right in its decision. The matter at hand bears semblance to what was thrown up in the case of Okwu v. Umeh (2016) NWLR (Pt. 1501) (2015) LPELR-26042 SC per Okoro, JSC as follows:- "However, while it is the law that no cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party, yet, in the absence of a proper party or necessary party before the Court, it appears an exercise in futility for the Court to make an order or decision which affects a STRANGER to the suit who was never heard or given an opportunity to defend himself. This will certainly be against the tenets and tenor of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as (amended)... This is sadly the lot in the case. See Olawoye v. Jimoh (2013) 3-4 SC (Pt. iv) 58, N.D.P. v. I.N.E.C. (2012) 12 SC (Pt. iv) 24". (Emphasis added). His Lordship continued: "the end result I have said above is that although the trial Court has jurisdiction to hear the suit as constituted, the judgment generated thereby which had massive impact on the activities of A.P.G.A. including ITS LEADERSHIP, cannot be allowed to stand. A plaintiff is not bound to sue a particular party. However, where the outcome of the suit will affect that party one way or the other, it will be fool hardly not to join him in the suit." (Emphasis ours) In the recent decision of this Court in Prince Biyi Poroye & Ors. v. Makarfi & Ors. (2017) LPELR-42738 it was held thus:- "...there is no doubt that a careful reading of the averments of the appellants in the affidavit in support of the originating summons for the above reliefs, shows that the rights of the 1st and 2nd respondents is affected adversely. The above reliefs were sought and granted by the trial Court in favour of the appellants behind the respondents. That is, without hearing their own side of the story. This, no doubt, is in breach of the constitutionally guaranteed right to fair hearing... it is clear from the record and in particular, in the affidavit evidence of the appellants in support of their claim in the originating summons that the Caretaker Committee is alleged to have been involved in various illegalities. And that this Caretaker Committee has as its Chairman and Secretary - Senators Ahmed Makarfi and Ben Obi, respectively. These persons are ordinarily entitled to be heard before any Court take any decision on the allegations that were raised against them and their Committee. They were not made parties in the action instituted by the appellants at the trial Court where the above reliefs were sought and granted... Who then is a necessary party to an action? A necessary party in an action has been held to be that person who is not only interested in the subject matter of the proceedings but also who in his absence, the proceedings could not be fairly dealt with. In other words, the question to be settled or determined in the action between the existing parties must be a question which cannot be properly and fairly settled unless he is a party to the action, instituted by the Plaintiff... in the instant matter, having regard to the claims of the appellants as plaintiffs at the trial Court, I am of the firm view that the interest of the respondents were affected, to the effect that the plaintiffs/appellants claim could not have been fairly, effectually and completely determined without them being joined as defendants. In other words, they were necessary parties to the suit instituted by the appellants. The Court below was therefore right to have, on the basis, set aside the judgment of the trial Court." The Court below following in the heels of those principles above enunciated on the 16th August, 2017 held inter alia: "in the instant case, there is no doubt that the orders made by the Court below affected the right of the appellant who is said to have been suspended for misconduct and who was not given the opportunity of being heard before the decision of the Court. Where there is failure to hear all necessary parties to a dispute is before a decision is reached as in the case on appeal, there is a breach of Section 36 (1) of the Constitution as amended. The party affected by such a decision is entitled to have it set aside as such decision is null and void and without any legal effect. The learned trial judge seriously erred in law when he granted the orders sought by the 1st and 2nd respondents which tantamount to a recognition of Chief Martin Agbaso and upholding the alleged suspension of the appellant without affording him an opportunity of being heard. Issue 1 is resolved in favour of the appellant." I have no difficulty in agreeing with what the Court of Appeal did as a decision reached in the absence of an adjudged necessary party will be a nullity and an exercise in futility as the fair hearing principle has been breached since the 1st respondent was not taken along when his right was determined at least to hear him out. The decision such as the trial Court had taking in issuing the Mandamus was in clear violation of the 1st respondent's right to fair hearing and so liable to be set aside, which the Court of Appeal did and I agree with that. See Prince Biyi Poroye v. Makarfa (supra)."Per PETER-ODILI, J.S.C. (Pp. 57-62, Paras. A-C) - read in context 2. APPEAL - APPEAL BY INTERESTED PARTY: When will a person be joined in an appeal as an interested party "Irrespective of the colourised dimensions the parties arguments have taken in respect of issue one, the main contention to be resolved here remains "whether or not a miscarriage of justice has been occasioned by the lower Court in granting leave to the 1st Respondent to appeal as an interested party against the order for Mandamus made by the trial Court." The fact of this appeal relates to the order of mandamus which was granted against the 1st Respondent's interest. It is apparent that the order granted by the trial Court relates to the chairmanship of the Appellant. Although the 1st Respondent had allegedly been suspended, I am not in doubt that the whole issue revolves around his status, and the effect of the order of mandamus on his status. The 1st Respondent is a party that ought to have been joined in the suit, being one without which the Court cannot effectively or efficaciously decide the matter. The law is settled that where a necessary party who ought to be joined is not joined in an action, any judgment obtained against such a party is not a nullity but shall be to no avail. In AZUH v. UBN PLC (2014) LPELR-22913 (SC), this Court had reiterated the clear position of the law that non-joinder of a necessary party in a suit is an irregularity that does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, an order made against a person who was not a party to the action before the Court, though not a nullity, is to no avail. It cannot stand the test of time and is not binding on such non-party to the action. See: OKOYE v. NIGERIAN CONSTRUCTION & FURNITURE CO. LTD. & ORS. (1991) 7 SC (Pt. III) (REPRINT) 33 at 56; GREEN v. GREEN (1987) 3 NWLR (60) 480. See also UWAZURUIKE & ORS v. ATTORNEY-GENERAL OF THE FEDERATION (2013) 4-5 SC (Pt. 1) 90 at 119 Lines 16-21; (2013) LPELR-20392 (SC) 1 at 24, Per FABIYI, JSC.