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:-

“…the presence of the appellant/applicant is necessary for the effectual and complete adjudication of the questions involved in the cause or matter. The applicant is also likely to be affected by the proceedings… I therefore resolve the issue in favour of the appellant. This appeal has merit. It is hereby allowed.”

In effect, the 1st respondent was found to be a necessary party for the effectual adjudication of the case. The appellant felt unhappy with the stance of the court below and has decided to appeal to this court.

On 19th November, 2013 when the appeal was heard, each learned counsel to the parties adopted and relied on the brief of argument filed on behalf of his client. The appellant’s counsel made oral submissions and urged that the appeal be allowed. Each of the respondent’s counsel urged that the appeal should be dismissed.

On page 5 of the appellant’s brief, the sole issue couched for determination of the appeal reads as follows:

“2.1 Whether the Court of Appeal was right in setting aside the decision of the learned trial judge which dismissed the application for joinder of the 1st respondent to the suit on the ground that the appellant (sic) was not a necessary party to be joined in the suit. (This is distilled from grounds 1 and 2 of the Notice and Grounds of Appeal).”

On behalf of the 1st respondent, the issue decoded for determination reads as follows:-

“Whether the Court of Appeal was right in setting aside the judgment and/or ruling of the learned trial judge in respect of the 1st respondent’s application for joinder.”

For all intent and purpose, the issue formulated on behalf of the 2nd respondent is similar to that of the appellant. It reads as follows:-

“Whether the Court of Appeal was right in setting aside the decision of the learned trial judge which dismissed the application for joinder of the 1st respondent to the suit on the ground that the 1st respondent was not a necessary party to be joined to the suit.”

For the 3rd set of respondents, the issue raised for determination reads as follows:-

“Whether the Court of Appeal was right when it found that the 1st respondent, the Peoples Democratic Party that is bound to be affected by the proceedings in the High Court was a necessary party for the effectual adjudication of the questions in issue.”

On behalf of the appellant, learned counsel observed that the grant or refusal of joinder of a party is based on exercise of discretion which must be carried out judicially and judiciously by the court. He referred to the case of C.M.I. Trading Services Ltd. v. Yuri (1994) 11 NWLR (Pt. 573) 284 at 300.

Learned counsel maintained that the question in controversy which relates to the interpretation of sections 13, 65 and 66 of the Electoral Law of Rivers State as it affects the conduct of elections in ONELGA and tenure of the 3rd set of respondents does not require the presence of the 1st respondent in the suit. He submitted that the 1st respondent has no interest which will be irreparably prejudiced if it is not joined in the action. He cited the case of Col. Hassan Yakubu (Rtd) v. Governor, Kogi State & 3 Ors. and Ejeh of Ankpa (1995) 8 NWLR (pt. 414) 386 at 402-403.

Learned counsel further submitted that the 1st respondent cannot be a party as there are no questions for resolution that will affect its interest. He referred to Bisimillahi v. Yagba East Local Government Area (2003) All FWLR (Pt. 141) 1939 at page 1958.

Learned counsel opined that the court will refuse the joinder of a party when it is satisfied that the case could be effectively and completely determined without the joinder of such a party. He referred to Bisimillahi v. Yagba East Local Government Area (supra) and Uku v. Okumagba (1974) 3 SC.35 (1974) 1 All NLR 475. He maintained that the interest of the 1st respondent or any other political party is too remote since it is not an office holder and not charged to conduct the election like the 2nd respondent. He finally urged that the judgment of the court below be set aside.

On behalf of the 1st respondent, learned counsel submitted that it is a necessary party and that the lower court was right in setting aside the ruling of the learned trial judge. For the definition of necessary party, he referred to Black’s Law Dictionary, 9th Edition at page 1232.

Learned counsel maintained that the 1st respondent was not only a proper party but a necessary party. He cited the case of Green v. Green (2001) FWLR (pt. 76) 795 at 814. He further submitted that it is the duty of the court to ensure that parties that are likely to be affected by the result of an action are accordingly joined. He cited Okukuje v. Akwido (2001) FWLR (Pt. 39) 1487 at page 1523.

Learned counsel observed that from the reliefs sought by the appellant, the matter is of a political nature which involves conduct of election for Chairmanship and Councilors in Ogba/Egbema/Ndoni Local Government Area of Rivers State by the 2nd respondent. He referred to section 221 of the 1999 Constitution of the Federal Republic of Nigeria and the decision of this court in Amaechi v. INEC (2008) FWLR (Pt. 407) 1 at 97-98 to the effect that it is the party that sponsors candidates and wins an election.

Learned counsel asserted that this is a case where there is no valid excuse for the non-joinder of the 1st respondent being the winner of the election which the appellant wants to surreptitiously set aside. He maintained that the 1st respondent is the surety of the 3rd set of respondents and primarily liable for their obligations. As well, it can without recourse, voluntarily intervene in the affairs of the 3rd set of respondents even in matters such as in the claims of the appellant in the trial court.

Learned counsel asserted that the 1st respondent is not only a desirable party but a necessary party which ought to be joined. He referred to the cases of E.F.P. Co. Ltd. v. NDIC (2007) NWLR (Pt. 1039) 216; The Registered Trustees of Christ Apostolic Church of Nigeria & Anr v. Alhaji Sadiku & Ann (2002) FWLR (Pt. 95) 238 at 243; Akanobi v. Fabunmi & Anr. (1986) 2 SC 431. He urged that the lone issue be resolved in favour of the respondents and the appeal be dismissed as lacking in merit.

Learned counsel for the 2nd respondent made similar submissions with force. I need not recast same. He urged the court to hold that the court below was right to have set aside the decision of the trial court because the decision of the trial court was based on wrong principles for which an appellate court has the right to interfere. He maintained that the 1st respondent disclosed sufficient interest in its application before the trial court and ought to have been joined by the trial court.

As well, learned counsel for the 3rd set of respondents made similar submission like those of the learned counsel to the 1st respondent. He urged that the appeal be dismissed for want of merit because:

1. The appellant in his brief did not address the ratio decidendi of the decision of the court below which is the decision in Amaechi v. Independent National Electoral Commission & 2 Ors and the provisions of section 23 (2) (b) of the Rivers State Independent Electoral Commission Law;
2. It is the 1st respondent whose legal rights as the sponsor of the 3rd set of respondents that is ultimately in issue in the suit;
3. The 1st respondent who, in the eyes of the law contests and wins election, is a necessary party to this suit.

The learned counsel for the appellant also filed a Reply brief in which he maintained that section 221 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, section 23 of the Rivers State Independent Electoral Law and the case of Amaechi v. INEC, heavily relied upon by the respondents, were cited out of con.

He referred to the cases of Nwite v. Michael (2008) 15 NWLR (pt. 1109) 149 at 164; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 at 505; Buhari v. Obasanjo (2003) FWLR (Pt. 186) 709 at 727. He maintained that the decisions are to the effect that political parties are not necessary parties to an election petition. Learned counsel agreed that in this matter, election is not a live issue as none has been conducted by RSIEC. What was in issue is whether or not an election ought to be conducted in the stated Local Government Council of Rivers State. He stressed that the decisions in the above authorities cited by him still remain the position of the law with respect to necessary parties in an election related matter and that the relief sought by the appellant at the trial court can be determined without joining the 1st respondent.

It is at this point apt to find out who is a necessary party to an action. A necessary party is one who, being closely connected to a law suit, should be included in the case if feasible, but whose absence will not require dismissal of the proceedings. (Black’s Law Dictionary, 9th Edition at page 1232).

In Green v. Green (2001) FWLR (Pt. 76) 795 at 814, this court held that:

“A necessary party is one who is not only interested in the subject matter of the proceedings but whom in his absence, the proceedings cannot be fairly and judiciously decided. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless the necessary party to the particular claim is joined in the action…”

This court per Oputa, JSC in the same case of Green v. Green (1987) 3 NWLR (Pt. 60) 480 laid it down that in order to decide the effect of non-joinder or mis joinder of a party, the court should ask itself the following questions:-

(a) Is the cause or matter liable to be defeated by non joinder

(b) Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant

(c) Is the 3rd party a person who should have been joined in the first instance

(d) Is the 3rd party a person whose presence before the court as a defendant will be necessary in order to enable the court to effectually and completely adjudicate or settle all the questions involved in the cause or matter

Let me make the point that it is the duty of the courts to ensure that parties that are likely to be affected by the result of an action are joined accordingly. Refer to Okukuje v. Akwido (supra) at page 1523.

It should also be noted that a necessary party should be allowed to have his fate in his own hands. He should not be shut out to watch through the window. Judgment made with an order against a person who was not a party to a suit is to no avail. It cannot be allowed to stand. See: Uku v. Okumagba (supra).

It is basic that the grant or refusal of an application for joinder is an exercise at the discretion of the court. There is however, the rider that such exercise must be carried out judicially and judiciously, as well. Discretion is the art of being discrete. See: Eronini v. Iheuko (1989) 2 NSCC (Pt. 1) 503 at 513; 1989) 3 SC (Pt. 1) 30; University of Lagos v. Olaniyan (1985) 16 NSCC (Pt 1) 98 at 113.

The appellate court will be reluctant to interfere with the discretionary power of the trial court unless it was made upon wrong principles. See: Ige v. Farinde (1994) 20 LRCN 323 at 342.

The court below, in setting aside the Ruling of the trial court, held as follows per Awotoye, JCA:-

“The learned trial judge after hearing the parties dismissed the application. Was the appellant/applicant a necessary party having regard to the facts deposed to in the affidavit and the provisions of Rivers State Independent Electoral Commission Law No. 2 of 2000

The answer is yes with due respect. By virtue of section 23 (2) (b) of the Rivers State Independent Electoral Commission Law, a person shall not be qualified to contest a Local Government Election unless he is a member of a political party and is sponsored by that political party. The word ‘sponsor’ as used is defined in the Black’s Law Dictionary (with pronunciation) 6th Edition as surety – one who makes a promise or gives security for another.

It can be said in other words that the appellant (1st respondent herein) was the surety for 3rd set of respondents herein at the election….I am not in doubt that the application of the appellant (1st respondent herein) to be joined was wrongly refused and dismissed.

The presence of the appellant/applicant (1st respondent herein) is necessary for the effectual and complete adjudication of the question involved in the cause or matter. The applicant (1st respondent herein) is also likely to be affected by the proceedings…”

I agree with the reasoning and findings of Awotoye, JCA as reflected above. I shall add just a few points in support.

The party which desired to join – The Peoples Democratic Party is a political party. Section 221 of the Constitution of the Federal Republic of Nigeria 1999, amended provides that:-

“…No association other than a political party, shall canvass for votes for any candidate at an election or contribute to the funds of any political party or to the election expenses of any candidate at an election…”

In Amaechi v. INEC (2008) FWLR (Pt. 407) 1 at 97 – 98, this court, per Oguntade, JSC pronounced that without a political party, a candidate cannot contest and that it is a party that wins an election.

It is not in contest that the 1st respondent sponsored the 3rd set of respondents in the election conducted by the 2nd respondent in 2010. In effect, the 1st respondent won the election which tenure is the subject mater of the action at the trial court. There is no valid excuse for the non-joinder of the 1st respondent being the winner of the election which the appellant wants to surreptitiously set aside.

The trial judge at page 243 of the Records of Appeal stated as follows:-

“…the 3rd set of respondents were joined in this suit because upon election and taking the oath of office, they transcended the interest of representing the parochial interest of a political party but are on seat as chairman and councillors respectively, representing the whole people of Ogba/Egbema/Ndoni Local Government Area of Rivers State of Nigeria, and as such any issue that will call for the termination of their tenures require their presence as defendants and not that of the 1st respondent or any other political party.”

It should be noted that the appellant in his brief at page 8 paragraph 3.11 re-echoed this sentiment which is not backed up by any judicial authority, either case law or statute. The view of the trial judge which was supported by the appellant’s counsel equates with what one may refer to as mere postulation. In the light of the provisions of section 221 of the 1999 Constitution, as amended: section 23 (2) (b) of the Rivers State Independent Electoral Commission Law, 2000 and the decision of this court in Amaechi v. INEC (supra) as discussed above, the view of the trial judge and position taken by him, with respect, do not represent the correct position of the law. The decision of the trial judge was based upon wrong principles and/or assumption. The court below, no doubt, was on a firm stand when it rightly interfered with the exercise of discretion which was not carried out judicially and judiciously, as well. The 1st respondent disclosed sufficient interest in its application before the trial court and ought not to have met a brick wall thereat. See: Ige v. Farinde (supra) at page 348.

The presence of the 1st respondent is necessary for the effectual and complete adjudication of questions involved in the matter. The 1st respondent will be seriously affected by the outcome of the case. See: E.F.P. Co. Ltd. v. NDIC (2007) NWLR (Pt. 1039) 216; Amaechi v. INEC (supra), The Registered Trustee of Christ Apostolic Church of Nigeria & Anr. v. Alhaji Sadiku & Anr. (supra) at page 247 and Akanobi v. Fabunmi (supra) at page 535.

The appellant’s position is that the tenure of the 3rd set of respondents has expired. He urged the trial judge to compel the 2nd respondent to conduct fresh elections for the positions of Chairman and Councilors in the said Local Government Area of Rivers State of Nigeria. The 1st respondent, on its part contends that having sponsored the 3rd set of respondents and indeed won the election which tenure is sought to be put at an end surreptitiously by the appellant, it should be heard in the matter that would relate, pertain, concern and/or touch on the said election; particularly on the determination of same. It felt that denial of such audience would cause it great hardship and difficulty.

Let me observe briefly here that I note it that the appellant’s counsel in his Reply Brief maintained that the provisions of section 221 of the 1999 Constitution, as amended, section 23(2) (b) of Rivers State Independent Electoral Commission Law, 2000 and the case of Amaechi v. INEC heavily relied upon by the respondents were cited out of con. He cited inter alia, the cases of Buhari v. Yusuf (supra) Buhari v. Obasanjo (supra) and maintained that they decide that political parties are not necessary parties to an election petition. Learned counsel however agreed that in this matter, election is not a live issue as none has been conducted by RSIEC. What was in issue is whether election ought to be conducted in the stated Local Government Council of Rivers State of Nigeria. In effect, learned counsel for the appellant conceded that he stood on shifting sand. The authorities cited and relied upon by him in this respect failed to hit the target. If he was able to wrongly tilt the trial judge, he should not exhibit such mundane pranks before this court.

In conclusion, it must be stressed that the 1st respondent is not only a desirable party but a necessary party in whose absence the matter involved in this action cannot be effectively and effectually resolved. It is a party, which as clearly demonstrated ought to be joined as a party to the suit in the first instance as it will be affected by the outcome of the suit and bound by same. The decision of the trial court was based on wrong principles and/or self created postulations. The court below was right to have interfered with a woolly exercise of discretion by the trial

court which made it to wrongly refuse the deserving application by the 1st respondent to be joined as a party.

In conclusion, there is no shred of doubt that the appeal is devoid of merit and must be dismissed. The judgment of the court below delivered on March 15, 2012 is hereby affirmed as the appeal is accordingly dismissed. The 1st respondent is joined to the suit at the trial court. The appellant shall pay N100,000 as costs to each set of Respondent(s).

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SC.476/2012