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PRINCE BIYI POROYE & ORS v. SENATOR A.M. MAKARFI & ORS

(2017) LPELR-42738(SC)

In The Supreme Court of Nigeria

On Wednesday, the 12th day of July, 2017

SC.130/2017


Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria


Between

1. PRINCE BIYI POROYE
2. ADEMOLA A GENTY
(for themselves and on behalf of the Ondo State Executive Committee of the Peoples Democratic Party)
3. HON. OLASOJI ADAGUNODO
4. BOLA ALAO LATEEF
(for themselves and on behalf of the Osun State Executive Committee of the Peoples Democratic Party)
5. HON TAIWO AKEEM
6. HON ALABA ADELABU
(for themselves and on behalf of the Oyo State Executive Committee of the Peoples Democratic Party)
7. HON BOWALE SOLAJA
8. OTUNBA ADEWALE SEGUN
9. OGUNBIYI ADELEKE OLASHUNKANMI - Appellant(s)

AND

1. SENATOR A.M. MAKARFI
2. SENATOR BEN OBI
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. PEOPLES DEMOCRATIC PARTY (PDP) - Respondent(s)


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.

FACTS:
This is an appeal against the judgment of the Court of Appeal, Abuja Division, wherein the Court allowed the appeal of the 1st and 2nd Respondents against the judgment of the Federal High Court, Abuja.
The action that culminated into this appeal was commenced by an originating summons filed at the Federal High court, Abuja. This matter was between the appellants, as plaintiffs, and the 3rd & 4th respondents as the only defendants, as 1st and 2nd defendants, to the action.
According to the appellants, as contained in their brief of argument, "the main reason behind the filing of this suit was the need to ensure that confusion existing within the 4th respondent, did not in any way affect the smooth functioning of the South West Zonal Committee of the 4th respondent and its States Executive Committees in Ekiti, Ogun, Osun, Ondo, Oyo and Lagos. It was contended that the South West Zonal Committee of 4th respondent had been elected at a special South West Zonal congress, held in October, 2014 to hold office for a period of four years in accordance with the Constitution of the 2nd respondent. It was further contended that the States Executive Committees of the 4th respondent in the said six States were elected and inaugurated on 10th May, 2016 for a term of 4 years. Learned appellants' senior counsel made reference to certain letters said to have been issued by the National Working Committee of the 4th respondent. It was contended that by the said letters, the National Working Committee of the 4th respondent recognized the States Executives as constituted as the authentic organs of the party empowered to organize and implement all party programmes and events in the States. Also attached to the affidavit in support of the Originating Summons of the appellants is a document marked as Exhibit AS5 at pages 209 to 210 of Vol.1 of the records, to show the National Working Committee of the 4th respondent as the authentic body to function on behalf of the 4th respondent in the South West Zone.
The appellants also contended that by the document marked Exhibit AS9A at pages 233 to 234 of Vol.1 of the records, written by the National Working Committee of the 4th respondent to the 3rd respondent, it conveyed its recognition of the South West Zonal Executive committee elected at the special South west Zonal Congress of the party held on 11th October, 2014 to hold office for a period of 4 years till end of October, 2018. Also referred to was the document attached to the Affidavit by the appellants marked as Exhibit AS9B at pages 235 to 237 of Vol.1 of the records, which they contended was a letter written by the National Working Committee of the 4th respondent to the 3rd respondent dated 19th May, 2016 informing the 3rd respondent that the State Executive Committees elected at the Congresses conducted by the 4th respondent in Ondo, Ekiti, Osun, Oyo, Ogun and Lagos States were the one entitled to organize and implement all party programmes and events in the States.
The appellants further contended that all the exhibits attached to the supporting affidavit of the summons raised concerns about the efforts being made by some people, they described as, undemocratic persons in the 4th respondent to create illegal and parallel executive committees in the States and warned the 3rd respondent not to deal with such illegal parallel committees. The appellants referred to the decision of the Federal High Court differently constituted in suit No. FHC/L/CS/605/2016 between Chief Pegba Otemolu Vs. Independent National Electoral Commission and Ors, given on 11th May, 2016, an interlocutory order restraining the 4th respondent herein, that is, the Peoples Democratic Party (PDP), the National Chairman and the National Secretary of the 4th respondent from conducting or permitting or recognizing any election into the offices of the South West Zonal Executive Committee pending the hearing and determination of the originating summons. Learned senior counsel submitted that it was based on the above that the appellants instituted the suit.
The appellants obtained judgment which led to the appeal by the 1st & 2nd respondents to the Court of Appeal on various grounds, including non joinder and denial of fair hearing by the trial Court. Judgment was given in favour of the 1st & 2nd respondents. Dissatisfied with the judgment of the Court of Appeal, the appellants who were the 1st to 9th respondents at the Court of Appeal appealed to the Supreme Court.

ISSUES:
The Court considered the appeal on the following issues:
"1. Whether having regard to the claims of the appellants before the trial Court, the 1st and 2nd respondents were necessary parties, who required to be joined to the suit, the failure of which denied them of fair hearing, justifying the setting aside of the judgment of the trial Court by the Court below. (Grounds 1, 2, 5 and 6 of the amended Grounds of Appeal).
2. Whether the lower Court had jurisdiction to entertain the respondents' appeal when they failed to obtain an order for extension of time to seek leave to appeal, which rendered their notice of appeal invariably invalid. (Grounds 7, 8 and 9 of the Amended Grounds of Appeal).
3. Whether on a proper consideration of the case made by the 1st and 2nd respondents in the lower Court, the Court was right in its finding of fraud against the appellants and that they had no proper cause of action. (Ground 3 of the Amended Ground of Appeal).
4. Whether in the light of the materials on record, the lower Court was right in holding that the reliefs sought in this action were beyond the plaintiffs. (Ground 4 of the Amended Ground of Appeal)."

DECISION/HELD:
In the final analysis, the Court held that the appeal fails and it was accordingly dismissed.
The judgment of the Court of Appeal delivered on the 23rd November, 2016 setting aside the judgment of the Federal High Court delivered on the 29th June, 2016 in the absence of the 1st and 2nd respondents was thereby affirmed.


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