Dr. Andy Uba V. Prince (Hon.) Nicholas Ukachukwu & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the Ruling of M. G. Umar, J of the Federal High Court sitting at Umuahia delivered on the 1st day of February 2012, wherein the learned trial Judge made an order joining the Appellant (Dr. Andy Uba) as a co-Respondent in Suit No: FHC/UM/C/CS/92/2011, pending before it.

The 1st Respondent as Plaintiff in the court below, had filed an application for judicial review following the refusal of the 2nd Respondent (INEC) to accept and act on a list containing the names of the 1s Respondent Prince (Hon.) Nicholas Ukachukwu and others on the said list, which was submitted to the National Headquarters of the Peoples Democratic Party (PDP), in respect of candidates of the Peoples Democratic Party (PDP) for election into the National Assembly Constituencies for Anambra State in the general elections of April, 2011.

Due to allegations of bias against the trial Judges, commencing from the Federal High Court Awka, the suit was finally transferred to the Federal High Court, Umuahia. At the Federal High Court, Umuahia, the 1st Respondent applied for and was granted an order joining the Appellant in the said suit as a Co-Respondent to defend the said suit in a representative capacity. The Appellant who was joined was dissatisfied with the ruling of the lower court, consequently filed a Notice of Appeal dated 4th day of February, 2012 and filed 08/2/2012. By Order of this court dated on the 02/4/2012, the Appellant was granted leave to amend the Notice of Appeal. The Amended Notice of Appeal is dated the 4th day of April, 2012 and filed the 05/4/2012.

The Amended Notice of Appeal consists of Grounds of Appeal, which without their particulars are as follows:

1. The court below erred in making the order of joinder of Dr. Andy Uba notwithstanding that the Application amounted to gross abuse of judicial process.
2. The Order of joinder of Dr. Andy Uba ought not to have been made as Dr. Andy Uba was in capable of being sued and/or action being maintained against him after Dr. Andy Uba had contested the election giving rise to the dispute and was declared the winner thereof.
3. The learned trial judge was wrong to have made an order joining Dr. Andy Uba in the matter having held that the res in the matter is “which list of candidates” should be used for the election.
4. The learned trial Judge was wrong when in the conduct of proceedings in this matter culminating in hearing of the Application for joinder, he made pronouncement which showed strong and/or likelihood of bias which prematurely determined the Ruling delivered by him on 1st February, 2012, joining Dr. Andy Uba into the action.
5. The court below was wrong when in its ruling, it held thus:

“this equally means that pre-election may continue as the election contended by the Respondent has been nullified.”

6. The court below was wrong to have joined the Appellant into the proceedings at the court below when the 1st Respondent lacks the capacity to prosecute the cause of action presented in the said 1st Respondent’s claim.

As the Rules of this court demand, the parties filed and exchanged Briefs of Argument which were subsequently amended consequent upon the Amendment made to the Notice of Appeal. The Appellant’s Amended Brief of Argument settled by Prof. Ilochi Okafor SAN was dated the 04/4/12 and filed the 05/4/12. The 1st Respondent’s Amended Brief of Argument was dated the 10/4/12 and filed the same day. The 1st Respondent filed a Notice of Preliminary Objection dated and filed the 10/4/12, and which was argued separately. The Appellant also filed a Reply to the 1st Respondent’s Notice of Preliminary Objection. It was dated the 13/4/12 and filed the 16/4/12. He also filed a Reply to the 1st Respondent’s Brief of Argument, also dated the 13/4/12 and filed the 16/4/12, the 2nd Respondent did not file any brief of argument in this appeal.

At the hearing of this appeal on the 24/4/2012, both parties adopted and relied on their said briefs of Argument as their arguments in this appeal.

Now, in arguing the appeal, the Appellant nominated four issues for determination as follows:

1) Is the lower court with jurisdiction to entertain the claim of the 1st Respondent? (Grounds 3 and 6).

2) Whether the claim of the 1st Respondent is maintainable against the Appellant after the election had been conducted to warrant his joinder in the proceedings in this suit at the court below. (Grounds 2 and 5)

3) Whether the lower court is not biased against the Appellant in the Proceedings. (Ground 4).

4) Whether the application filed by the 1st Respondent to join the Appellant into the proceedings is not an abuse of court process and the ensuing order joining the Appellant is not liable to be set aside.

The 1st Respondent on his part, nominated two issues for determination as follows: