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136
Essien v The Gambia and Another
(2007) AHRLR 131 (ECOWAS 2007)
15. On the second point relating to non-joinder of parties, counsel
to the plaintiff reiterated the fact that it is the claim of the plaintiff
or applicant that determines the issue of jurisdiction of the Court and
not the defendants to the case. It follows therefore that the nonjoinder
of Commonwealth Secretariat as a party cannot be fatal to
the claim as to warrant the Court to uphold the preliminary
objection. It is clear to the Court that there is no order sought against
the Commonwealth Secretariat as to warrant their being joined as a
party to the suit arid it is safe to conclude that the non-joinder of the
Commonwealth Secretariat did not divest this Court of its jurisdiction
to hear and determine the matter before it. See Mabal Ayonkoya and
8 Others v E Aina Olukoya and Another (1991) 4 NWLR (part 440) at
31 para E to F. Alhaja Refatu Ayorinde and 4 Others. Alhaja Airat Oni
and Another (2000) 75 LRCN 206 at 234 to 235 para H-D; Joseph
Atuegbu and 4 Others v Awka South Local Government and Another
(2002) 15 NWLR (pt 791) 635 at 653 to 654 para H to B which were
relied upon by Counsel.
16. It is a well established position of law that the Court has
jurisdiction to join a person whose presence is necessary for that
purpose. The significance of the issue of jurisdiction is that where a
matter is heard and determined without jurisdiction it amounts to a
nullity no matter how well conducted the case may be. The matter of
joinder of parties is of great importance to the cause of action and
there is a plethora of decisions in municipal and regional courts on the
matter. See the Supreme Court case of A-G Lagos State v A-G
Federation supra held at p 74 that ‘where the grant of a relief will
affect the interest of other persons not parties to a suit, those
persons are necessary parties and they must be heard or given the
opportunity to be heard: otherwise, If they are not before the court,
the court cannot grant the claim’. This Court states that the latter
view has sufficiently hit the nail on the head in that a party who is not
shown to have material connection with the matter cannot be joined.
Further to this, is that the Commonwealth has not been shown to have
renewed the contract at this stage. In the circumstance, a nonjoinder
of the said Commonwealth Secretariat cannot be fatal. On
that basis the objection is overruled.
17. Learned counsel to Plaintiff further argued that there is no
order sought against the Commonwealth Secretariat as to warrant
their being joined as a party to the suit and concluded that the nonjoinder
of the Commonwealth Secretariat did not divest this
honourable Court of its jurisdiction to hear and determine the matter
before it. On this note he relied on See Mabal Ayonkoya and 8 Others
v E Aina Olukoya and Another (1991) 4 NWLR (part 440) at 31 para E
to F. Alhaja Refatu Ayorinde and 4 Others. Alhaja Airat Oni and
Another (2000) 75 LRCN 206 at 234 to 235 para H-D; Joseph Atuegbu
and 4 Others v Awka South Local Government and Another (2002) 15
NWLR (pt 791) 635 at 653 to 654 para H to B. Even though the Court
African Human Rights Law Reports