IBEGWURA ORDU AZUBUIKE VS PEOPLES DEMOCRATIC PARTY & ORS

LEGALPEDIA CITATION: LER[2014] SC. 476/2012

AREAS OF LAW-ELECTION, JOINDER OF PARTY

SUMMARY OF FACTS:

The Rivers State House of Assembly dissolved the Chairman and Councillors of Ogba/Egbema/Ndoni Local Government Area of Rivers State at the expiration of their three years’ tenure upon the request of the Executive Governor of Rivers State and a caretaker committee was set up to over-see the affairs of the Council pending the conduct of a bye election. On the 3rd day of March, 2010, the 2nd Respondent conducted the said bye election and the 3rd set of Respondents (3rd-6th Respondents) were elected into the positions of Chairman and Councillors. The Appellant filed an originating Summons at the Trial court seeking inter alia an interpretation as to whether or not an election ought to be conducted in the L.G.A Council in the above local Council in addition to seeking an order compelling the 2nd Respondent to conduct the said elections in 2011. The 2nd Respondent opposed the said originating Summons on the ground that the election it conducted in 2010 which brought the 3rd set of Respondents (3rd-6th Respondents) into power was a general election and as such the tenure of office of the 3rd set of Respondents will not expire in 2011 but in 2013. At the hearing of the Originating Summons, the 1st Respondent brought an application to be joined as a party to the suit, which application was refused by the Trial Court on the ground that the 1st Respondent was not a necessary party to the suit. Piqued by the Trial Court’s ruling, the 1st Respondent appealed to the Court of Appeal where the ruling of the Trial Court was set aside. The Appellant, dissatisfied with the Court of Appeal’s decision, appealed to Supreme Court.

HELD

Appeal dismissed

ISSUES FOR DETERMINATION:

Whether the Court of Appeal was right in setting aside the decision of the learned trial judge which dismissed the application for joinder of the 1st Respondent to the suit on the ground that the Appellant (sic) was not a necessary party to be joined in the suit

RATIOS:

JOINDER OF PARTY-WHAT THE COURTS SHOULD CONSIDER

“This court per Oputa, JSC in the same case of Green v. Green (1987) 3 NWLR (Pt. 60) 480 laid it down that in order to decide the effect of non-joinder or misjoinder of a party, the court should ask itself the following questions:-

(a) Is the cause or matter liable to be defeated by non-joinder?

(b) Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant?

(c) Is the 3rd party a person who should have been joined in the first instance?

(d) Is the 3rd party a person whose presence before the court as a defendant will be necessary in order to enable the court to effectually and completely adjudicate or settle all the questions involved in the cause or matter? PER AFOLABI FABIYI, JSC

JOINDER OF PARTY-EXERCISE OF THE COURTS DISCRETION IN THE GRANT OR REFUSAL OF AN APPLICATION FOR JOINDER

“It is basic that the grant or refusal of an application for joinder is an exercise at the discretion of the court. There is however, the rider that such exercise must be carried out judicially and judiciously, as well. Discretion is the art of being discrete”. PER AFOLABI FABIYI, JSC

DISCRETIONARY POWER OF THE TRIAL COURT-WHEN AN APPELLATE COURT CAN INTERFERE THEREWITH

“The appellate court will be reluctant to interfere with the discretionary power of the trial court unless it was made upon wrong principles”. PER AFOLABI FABIYI, JSC

JOINDER OF PARTY-EXERCISE OF DISCRETION IN THE GRANT OR REFUSAL OF- WHEN AN APPELLATE COURT WILL INTERFERE THEREWITH

“The grant or refusal of joinder of a party as plaintiff or defendant is entirely at the discretion of the judge, and it has been said in a plethora of cases that the appellate court will not interfere with the way a trial judge exercise his discretion, unless:

(a) the discretion is known to have been wrongly exercised,

(b) or the exercise was tainted with some illegality or substantial irregularity.

©  it is in the interest of justice”. PER RHODES-VIVOUR

PARTY TO AN ACTION-REQUIREMENT FOR MAKING A PERSON A PARTY TO AN ACTION

“The well settled position of the law for making a person, either natural or legal to be a party to an action is that he should be bound by the result of the action. The questions to be settled in the action must be questions which cannot be effectually and completely settled unless he is a party. The court is expected in the interest of justice to join as plaintiff or defendant anyone who may have a stake in the subject matter of the suit or may be affected by the decision”. PER RHODES-VIVOUR

EXERCISE OF DISCRETION-ATTITUDE OF AN APPEAL COURT THERETO

“An Appeal court is always slow to interfere with the discretion of a trial judge but would be compelled to do so if the exercise of discretion was in clear breach of the law”. PER RHODES-VIVOUR

ELECTION-RELATIONSHIP OF A POLITICAL PARTY AND ITS CANDIDATE

 “In fact, it is the political parties that contest elections along with their candidates. Thus whatever happens to a candidate of a party definitely affects the fortune of the party at the election and vice versa. The interest of one cannot be separated from the other. There is a symbiotic relationship between a party and its candidate. A party which sponsored a candidate at an election definitely has a stake on what happens to the candidate during and even after the elections including his tenure of office. PER OKORO JSC

POLITICAL PARTY-WHEN CAN BE A NECESSARY PARTY

“Whenever an office which a political party won is tampered with, that political party, in my opinion is a necessary party to such a determination”. PER OKORO JSC

JOINDER OF A PARTY- DETERMINANT OF

“A person likely to be affected by a decision reached in a matter ought to be joined as a party. PER NGWUTA JSC

CASES MENTIONED:

Amaechi v. INEC & Ors (2008) FWLR (Pt. 407) 1 at 97 to 98

Carlen Nig. Ltd. v. University of Jos & ors (1994) 4 NWLR (Pt. 323) 61;

Eronini v. Iheuko (1989) 2 NSCC (Pt. 1)503 at 513; 1989)3 SC(Pt. 1) 30;

Green v. Green 1987 3NWLR pt.61 p.480

Ige v. Farinde (1994) 20 LRCN323 at 342.

Okukuje v Akwido (20010 FWLR (PT.39) 1487 at 1523

Peenok Investment Ltd v. Hotel Presidential Ltd (1982) 12 SC 1

Salu v. Egeibon 1994 6NWLR pt.348p.23

Uku & ors. v. Okumagba & ors. 1974 3SC

University of Lagos v. Olaniyan (1985) 16 NSCC (Pt. 1) 98 at 113

STATUTES REFERRED TO:

The 1999 Constitution of the Federal Republic of Nigeria, (as amended)

Rivers State Local Government Law, 1999 (as amended).

SOCIETY BIC S.A & 2 ORS VS CHARZIN INDUSTRIES LTD

                    LEGALPEDIA CITATION: LER[2014] SC. 79/2005

AREAS OF LAW- LAW OF TORT-DEFAMATION-LIBEL

SUMMARY OF FACTS:

The Plaintiff, now Respondent, claimed against the Defendants, now Appellants the sum of N10, 000,000 (Ten Million Naira) as damages for injury suffered by reason of libel on the Plaintiff’s product published by the Defendants, and a perpetual injunction. The Defendants (now Appellants) filed a motion for an order striking out the suit for lack of jurisdiction. The trial court dismissed the said application, the Defendants/Applicants appealed to the Court of Appeal and the lower court dismissed the appeal. Dissatisfied with the judgment once more, the Appellants appealed to the Supreme Court.

HELD

Appeal dismissed

ISSUES FOR DETERMINATION:

Whether the Court below was right in deeming as abandoned prayer 2 in the appellants’ motion

Whether the Court of Appeal was right in holding that the Respondent’s cause of action in this Suit was founded in tort and not trademark and therefore the High Court of Lagos State has the jurisdiction to hear and determine the Suit

Whether from the facts and circumstances of this case the Court of Appeal was right in holding that for purposes of determining jurisdiction, the plaintiffs’ cause of action is defined by reference to only the plaintiff’s statement of claim

RATIOS:

GROUND OF APPEAL–

“It is an established principle of law that the number of grounds of appeal should on no account be less than the issues for determination and framing two issues from one ground of appeal is a violation of the said principle.” PER NWALI SYLVESTER NGWUTA, JSC

ISSUE FOR DETERMINATION-WHERE NOT RELATED TO GROUNDS OF APPEAL –HOW TREATED

“An issue for determination not related to or based on grounds of appeal is not only incompetent but completely valueless and must be ignored by the appellate Court.” PER NWALI SYLVESTER NGWUTA, JSC

GROUND OF APPEAL-

“A ground of appeal should not be split to raise two issues”. PER NWALI SYLVESTER NGWUTA, JSC

CAUSE OF ACTION-DEFINITION OF

“The term “cause of action” is judicially defined as denoting every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the Court. It is any act on the part of the defendant which gives the plaintiff a cause to complain”. PER NWALI SYLVESTER NGWUTA, JSC

CAUSE OF ACTION-NATURE OF

“It is different from the evidence or pieces of evidence necessary to sustain the claim. It is the entire set of circumstances giving right to enforceable claim.” PER NWALI SYLVESTER NGWUTA, JSC

JURISDICTION OF COURT-DEFINITION OF

“Jurisdiction of a Court is defined as the dignity which the Court has to do justice in a cause or complaint brought before it. It is the limits imposed upon the power of a validly constituted Court to hear and determine issues with reference to subject matter, the parties and the relief sought.” PER NWALI SYLVESTER NGWUTA, JSC

 ISSUE OF JURISDICTION-DETERMINATION OF

“In determining the issue of jurisdiction, it is the claim endorsed on the Writ or stated in the Statement of Claim that will be considered, not the facts averred in the Statement of Claim or the affidavit evidence to be relied on by the plaintiff.” PER NWALI SYLVESTER NGWUTA, JSC

JURISDICTION-DUTY OF A JUDGE NOT TO EXPAND JURISDICTION BEYOND THE LIMIT IMPOSED BY LAW

“It is an established fundamental principle that while a Judge can expound his jurisdiction, he cannot expand same beyond the limit imposed by law. A Judge does not hunger after jurisdiction.” PER NWALI SYLVESTER NGWUTA, JSC

CASES MENTIONED:

Adeyemi v. Opeyori (1976) 9, 10 SC 31

Adimora v. Ajufo (1988) 3 NWLR (pt. S0) 1

Agu v. lkewibe (1991) 3 NWLR (Pt. 180) 38

lkine v. Edierode (2007) 92 LRCN 3288 at 3316

Lasisi Fadare & Ors v. A-G Oyo State (1982) 14 SC 1 at 7

Odutan v. Akibu (2000) 7 sc (Pt. 11) 106

Omo v. JSC Delta State (2000) 7 SC(Pt. 11) p.1

STATUTES REFERRED TO:

The Federal High Court Act Cap F.12 Vol. 6 Laws of the Federation of Nigeria

The 1999 Constitution of the Federal Republic of Nigeria

AKUNWATA OGBOGU MBANEFO VS NWAKAIBIE HENRY MOLOKWU &7 ORS

                  LEGALPEDIA CITATION: LER[2014] SC. 238/2008

AREAS OF LAW:-CHIEFTANCY LAW, CONSTITUTIONAL LAW

SUMMARY OF FACTS:

The Plaintiff/Appellant came to the Agbalanze Society to participate at their function and was told that he could not participate with other members of the Society as he has been ostracized by Obi-in-Council of the Onitsha Community to which the Agbalanze Society was an integral part until members of the rebellious group to whom he belonged to and whose action are inimical to the Onitsha community are purged of their contempt. The Plaintiff/Appellant sued the Defendants/Respondents at the trial Court seeking inter alia a declaration that the Defendants/Respondents do not have the authority and power to stop him from participating in Ozo Title ceremonies and from enjoying his rights and privileges as an Ozo title so far as he is not in breach of the rules. The trial Court dismissed the Plaintiff/Appellant’s case as being unmeritorious. Dissatisfied with the trial Court’s decision, the Plaintiff/Appellant appealed to Court of Appeal where the appeal was dismissed. Dissatisfied, the Plaintiff/Appellant appealed to Supreme Court complaining that his rights to association and fair hearing were breached.

HELD:

Appeal dismissed.

ISSUES FOR DETERMINATION:

Whether the Court of Appeal was right when it held that the Respondents properly considered themselves bound to implement the disciplinary actions taken against the Appellant

Whether the Court of Appeal was right when it held that the Appellant failed to establish that his right to freedom of association was violated by the Respondents

Whether the Court of Appeal was right in holding that the learned trial judge appreciated the point on which issues were joined and duly evaluated the evidence led by the parties.

Whether the Court of Appeal abandoned issue 2 raised by the Appellant

RATIOS:

INTERPRETATION OF SECTION 45 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA-WHETHER THE RIGHT TO PEACEFUL ASSEMBLY OPERATE IN ISOLATION OF INTEREST OF PUBLIC

Nothing in Sections 37, 38, 39 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society –

(a) In the interest of defence, public safety, public order, public morality or public health; or

(b) For the purpose of protecting the rights and freedom of other persons.” PER PETER-ODILI, JSC

PARTY TO AN ACTION-THE RATIONALE FOR MAKING A PERSON A PARTY TO A SUIT

“The reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. PER PETER-ODILI, JSC

PARTY TO AN ACTION-WHETHER THE COURT CAN COMPEL A PLAINTIFF TO PROCEED AGAINST A PARTY WHOM HE HAS NO DESIRE TO PROSECUTE

 “The law is settled that the court will not generally compel a plaintiff to proceed against a party whom he has no desire to prosecute unless:-

(a) Where a very strong case is made out, showing that in the particular case justice cannot be done and the case cannot be properly determined without the new defendant being brought in; or

(b) When the plaintiff’s case or the existing defendant’s case cannot be very effectually and completely determined without the joinder”. PER PETER-ODILI, JSC

NECESSARY PARTY-DEFINITION OF

A “necessary party” to a proceeding is a party whose presence is essential for the effectual and complete determination of the claim before the court. It is a party in the absence of whom the claim cannot be effectually and completely determined”. PER PETER-ODILI, JSC

REPRESENTATIVE ACTION-FAILURE TO SEEK LEAVE TO SUE IN REPRESENTATIVE CAPACITY-EFFECT OF

“It is settled law that the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action. The mere fact that the court holds that the plaintiff has held himself out as representing others cannot and does not amount to the court making a person represent other people. It is only if leave is given or an order is made by the court for representation that it can logically be argued that the court is making a person represent other people”. PER PETER-ODILI, JSC

WRITING OF JUDGMENT -STEPS TO BE COMPLIED WITH IN REACHING A FAIR JUDGMENT

“A trial court has uninhibited discretion in the style of writing its judgment. There are some steps it must follow in reaching a fair judgment which include the following:–

(a) it should start by first considering the evidence led by the plaintiff to see whether he has led evidence on all the material issues he needs to prove. At this point, there is no question of proof or belief or non-belief of the witness. If the plaintiff failed to lead evidence or if the evidence led by him is so patently unsatisfactory, then he has not made out a prima facie case in which case the trial court does not need to consider the case of the defendant;

(b) the next step is for the trial Court to evaluate the evidence and in so doing, it was to bear in mind the following processes:-

(i) on whom the onus of proof lies; and

(ii) whether the particular type of evidence called requires any special approach;

(c) after evaluating the evidence, the trial Court should then make its findings which having regard to the party on whom the onus lies, then determine its ultimate effect.

It is to be said that any other approach by the trial court different from the methods above stated will give an unfair advantage to the defendants and create an unfair trial with the implication that the court was unfair in trial to one of the parties to the dispute. PER PETER-ODILI, JSC

WRITING OF JUDGMENT-DUTY OF A COURT THERETO

“It is note-worthy that a trial court while writing its judgment has to display a clear understanding of the facts in the case, the issues involved and the relevant applicable laws. Again, the court of trial is expected to draw the correct conclusion and an appropriate finding on the evidence before it. Then follows that the judgment would show a fair and even handed treatment of the materials proffered by the parties before that court. It is for these cautionary steps that a trial court is enjoined not to start its judgment by first considering the defendants case and its weakness unless it has first considered the plaintiff’s case otherwise it could produce a situation of a pre-judgment before all the facts and materials necessary have been taken in by the court in a balanced process”. PER PETER-ODILI, JSC

WRITING OF JUDGMENT -WHETHER A JUDGE IS BOUND BY A PARTICULAR STYLE IN WRITING JUDGMENT

“It is trite that there is no hard and fast rule or set standard in the style or writing of a judgment. Every judge has the freedom to use the style or method suitable for his purpose, I dare say a peculiar style which enables him perform that duty of judgment writing without undue fuss or stress. In doing that however, it is necessary to remind himself that the components of a proper judgment must be present and equally show that the judgment was a fair, impassionate consideration of how the verdict came to be open from his evaluation of the materials put up by the parties”. PER PETER-ODILI, JSC

JUDGMENT-WHETHER EVERY ERROR CAN VITIATE A JUDGMENT

“It has to be reiterated that it is not every error that would vitiate a judgment since if what the court had done met the minimum standard of a good judgment and nothing to show that a miscarriage of justice had taken place then that judgment will stand, the peculiar style utilised by the judge notwithstanding. PER PETER-ODILI, JSC

PLEADINGS-RULE OF-HOW BASED

“The logic of the rigid rule of pleadings and evidence is based on fairness which fairness is tested by the immutable maxim, audi alteram partem. It follows therefore that the fundamental rule is that each party is given an opportunity to be heard and so no one is expected to prepare for the unknown. PER PETER-ODILI, JSC

PLEADINGS-OBJECTIVE OF

“The objective of pleading is that either party is given the opportunity or window to prepare his evidence and arguments upon the issues raised by the pleadings and this prevents either side from being taken by surprise. In other words, a case cannot be prepared or contested by either side from an environment of ambush and in keeping with this position each party must confine his evidence to only those issues pleaded since there is no room for surprise”. PER PETER-ODILI, JSC

PLEADINGS-BINDINGNESS OF PLEADINGS ON PARTIES-WHERE EVIDENCE IS AT VARIANCE WITH AVERMENTS IN PLEADINGS-HOW TREATED

“Parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court”. PER PETER-ODILI, JSC

PLEADINGS-UNPLEADED EVIDENCE IN RESPECT OF MATERIAL FACTS- HOW TREATED

“Similarly, evidence in respect of material facts which are not pleaded goes to no issue at trial and should be discountenanced by court. Even when such evidence has been wrongly admitted, the trial court should disregard it as irrelevant to the issues properly raised by the pleadings as it is not open to a party to depart from his pleadings and put up an entirely new case at the hearing”. PER PETER-ODILI, JSC

FAIR HEARING-TEST OF FAIRNESS IN APPEAL PROCEEDINGS AND THE COURT OF FIRST INSTANCE

“A distinction exists in the test of fairness in appeal proceedings as against fairness in proceedings at the Court of first instance. While in the Court of first instance the true test of a fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case, the true test of fair hearing in the Court of Appeal is whether having regard to the rules of Court and the law, justice has been done to the parties”. PER PETER-ODILI, JSC

FAIR HEARING-PRINCIPLE OF

“It cannot be over flogged; the cardinal principle of fair hearing and a hearing is taken to be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing. Without fair hearing the principles of natural justice are jettisoned and without the principles of natural justice the concept of the Rule of Law cannot be established and grow in the society. PER PETER-ODILI, JSC

CONCURRENT FINDING OF FACTS OF LOWER COURTS-ATTITUDE OF THE SUPREME COURT THERETO

“There are two concurrent finding of facts of the lower courts on the issue of the necessary parties to be before the court before the appellant’s claims can be properly considered. It has always been the practice of this court in such circumstances to decline to review the evidence a third time unless there is proof of miscarriage of justice or a violation of some principle of law or procedure, or if the finding is/was perverse”. PER RHODES-VIVOUR JSC

CASES MENTIONED:

Alhaji Balarabe Musa v Peoples Redemption Party (PRP) (1981) 2 NCLR 763 at 769.