Dr. Andy Uba V. (Prince) Hon. Nicholas Ukachukwu & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment)

This is one of the many interlocutory appeals which have in recent times clogged our cause lists. It emanates from the decision of the Federal High Court, sitting at Umuahia in Suit No. PHC/UM/CS/UM/92/2012 delivered on 1st February, 2012 wherein the learned trial judge M. G. Umar, J, allowed the amendment of the originating motion on notice for Judicial Review and also joined the appellant herein as a respondent in the substantive suit.

Being dissatisfied with the said Ruling, the appellant sought and obtained the leave of this Court to Appeal against the said decision. The said leave and extension of time to appeal was granted on the 5th day of July, 2012 pursuant to which the appellant filed his notice and grounds of appeal on 9th July, 2012. A brief facts leading to this appeal are as follows:

The 1st respondent herein was granted an ex-parte order by the court below made on 13th January, 2011 for leave to commence an application for Judicial Review against the Independent National Electoral Commission (INEC). The original reliefs sought by the 1st respondent (as applicant) vide his motion on notice for Judicial Review dated 24th January, 2011 and filed on 17th January, 2011 and directed exclusively at INEC were as follows:

“1. A declaration of court that the respondent is bound to act on and receive the list only of candidates who actually participated in the primaries of the Peoples Democratic Party conducted by the party for the election of candidates of the party from Anambra State to represent her in the April, 2011 election to the Senate and Federal House of Representatives of the Federal Republic of Nigeria and who emerged victorious in the same and as presented by the National Executive Committee of the party and on other list.

2. A further declaration of court that it is the political party that makes its decision on who to present as its candidate in an election and not the respondent especially where the candidates had emerged democratically in a free and fair electoral process as in the present case.
3. A declaration of the court that by the extant constitution of the Peoples Democratic Party, 2009 as amended, only the National Executive Committee of the party acting through its National Chairman and Secretary can validly present the list of its candidates in an election to the respondent who is bound to receive the same as in the present case where the said National Executive Committee of the Peoples Democratic Party has presented the list containing the names of the applicant and others to the respondent.
4. An injunctive order of the court restraining the respondent from receiving or acting on any list of candidates of the Peoples Democratic Party to contest the election to the senate and Federal House of Representatives for Anambra State in the election the National Assembly slated for April, 2011 other than that containing the names of the applicants and their other colleagues otherwise called the Senator Waku List of Candidates successful in the 07/01/2011 and 08/01/2011 National Assembly Primaries, Anambra State.”

The said election alluded to by the 1st respondent in his reliefs reproduced above was held in April, 2011 wherein the appellant contested and won same under the platform of the Peoples Democratic Party. The declaration of result and certificate of Return were issued bearing the names of the appellant as the candidate who won the election. He was subsequently sworn in as Senator of the Federal Republic of Nigeria. Following the declaration of the appellant as winner, the 1st respondent filed an election petition at the Election Tribunal, Awka. The said petition was struck out as it was laced with matters sounding in pre-election realm. A subsequent appeal of the 1st respondent to the Court of Appeal, Enugu was also dismissed.

After the dismissal of his appeal by the Appeal Court, the 1st respondent on 11th October, 2011 (about 6 months after the election and about 10 months after the institution of the Judicial Review proceedings) applied for the joinder of the appellant as a party to the proceedings. The appellant was sued and/or joined “for himself and on behalf of the other persons who lay claim of their names having been purportedly submitted by a factional leader of the PDP, Anambra State Branch, Chief Benji Udeozor, to the 1st respondent through a letter signed by the same Chief Benji Udeozor and dated 13/1/2011 but actually received by INEC on 17/1/2011. In the same motion, the 1st respondent herein sought for and was granted leave to amend the original motion on notice for Judicial Review by introducing 2 additional reliefs to the original reliefs sought. The said two additional reliefs are reliefs 5 and 6 in the amended application for Judicial Review which state as follows:

“5. A further order of injunction directing the 1st respondent to regard and/or continue regarding to treat or to continue to treat and to accord forthwith all the rights/perquisites/privileges appertaining/accruing to the applicants as candidates of the Peoples Democratic Party for the Anambra South Senatorial District and other Senatorial Districts/Federal Constituencies in Anambra State in April/May 2011 general election.

6. An order of court taking away forthwith from the 3rd respondent and his associates whose names appear in the Chief Benji Udeozor list of persons already mentioned above any rights, perquisites or privileges usurped and /or presently being enjoyed by them albeit undeservedly as “candidates” of the PDP in the aforesaid April/May 2011 general elections.”

The learned trial judge in allowing the amendment and joining the appellant placed reliance on the Supreme Court case of AMAECHI vs. INEC (2008) NWLR (pt.1080) 227. As I said above, the appellant filed notice of appeal on 9th July, 2012. Thereafter, he was granted leave to amend the said Notice of Appeal. The said amended Notice is dated 1st November, 2012 and filed on 7th November, 2012. It was however deemed properly filed on 26/11/12. It is this amended Notice of Appeal which the appellant relies upon in this appeal. The appellant has however abandoned ground 4 in the Amended Notice of Appeal. Accordingly, it is hereby struck out.

In an amended brief of argument settled on behalf of the appellant by Authur Obi Okafor, SAN, leading other counsel, two issues are formulated for the determination of this appeal. They are as follows:

1. Whether it was competent for the court below to allow the amendment of the 1st respondent’s application for Judicial Review by which two additional reliefs were added to the original reliefs sought in the action.
2. Whether it was not time barred, an abuse of court process and/or incompetent to join the appellant to this suit after the holding and/or conduct of the subject election and result declared by the appropriate authority.

Also, in the 1st respondent’s amended brief filed and signed by P. I. N. Ikweto, SAN, two issues are distilled for the determination of this appeal namely:

“a. Whether the learned trial court rightly exercised the discretion judicially and judiciously to join the appellant as a party to this suit and whether the said joinder of the appellant as a party to this suit was time barred.

b. The 1st respondent adopts issue No. (1) in the Amended appellant’s brief of argument.”

In this appeal, from the facts of this case, it appears to me that the two issues as couched by the appellant are more explicit and I intend to determine this appeal based on those two issues. This is much more so as the 1st respondent has adopted the 1st issue as couched by the appellant. I notice that argument on the two issues as formulated are interwoven and inter-related. Accordingly, I shall determine the two issues together.