Ibegwura Ordu Azubuike V. Peoples Democratic Party & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division (the court below) delivered on March 15, 2012. Therein, the Ruling of the trial High Court of Rivers State, Port Harcourt, per Aprioku, J. delivered on February 14th, 2011 was set aside.

It is apt to state the brief facts concerning this appeal. In March 2008, the 2nd respondent conducted the Local Government Election in Rivers State. One Hon. Chris Ochije emerged as the Chairman and 17 others were elected as Councilors from each of the 17 Wards in Ogba/Egbema/Ndoni Local Government Area of Rivers State. They were to hold office for three (3) years. The Rivers State House of Assembly dissolved the said Local Government Council upon the request of the Executive Governor of Rivers State. A caretaker committee was set up to over-see the affairs of the Council pending the conduct of a bye election.

On March 3, 2010, the 2nd respondent conducted the said bye election and the 3rd set of respondents was elected into the positions of Chairman and Councilors. They were different from the members of the dissolved council. At the expiration of the tenure of the 21 other Local Government Councils elected in Rivers State in March, 2008, the appellant filed an Originating Summons at the trial court. Therein, the following questions were raised for determination. viz:-

(a) Whether by the provisions of the Rivers State Independent Electoral Commission Law of Rivers State; Local Government Law 1999 as amended, Elections shall hold in Ogba/Egbema/Ndoni Local Government Area of Rivers State in 2011.

(b) Whether by the provisions of the said laws a vacancy shall exist in Ogba/Egbema/Ndoni Local Government Area of Rivers State in 2011.

The appellant then asked for the following reliefs, to wit:

(a) A declaration that by virtue of the combined provisions of sections 65 and 66 (1) – (3) of the Rivers State Local Government Law, 1999 as amended, the tenure of the Ogba/Egbema/Ndoni Local Government Area shall expire by March 2011.

(b) A declaration that pursuant to section 13 (1) of Rivers State Independent Electoral Commission Law No. 2 of 2000, Elections shall hold in Ogba/Egbema/Ndoni Local Government Area in 2011 (on a day to be fixed by RSIEC).

(c) An order directing the RSIEC to conduct Local Government Area elections in Ogba/Egbema/Ndoni

Local Government Area in 2011 on a day to be fixed by RSIEC.

The 2nd respondent – RSIEC opposed the said Originating Summons and contended that the election it conducted in 2010 which brought the 3rd set of 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 which was not a party from the on-set applied to be joined as a party to the suit via a motion on notice filed on 7th February, 2011. The appellant filed a counter affidavit to oppose the application.

After hearing parties in respect of the application for joinder, the trial court in the Ruling delivered on February 14, 2011, dismissed the application. The trial judge maintained that the 1st respondent – Peoples Democratic Party, which sponsored the 3rd set of respondents, was not a necessary party to the action.

The 1st respondent appealed to the court below which heard the appeal. In its judgment delivered on March 15, 2012 it found as follows:-