Peoples Democratic Party V. Ibegwura Ordu Azubuike (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

T. O. AWOTOYE J.C.A. (Delivering the Leading Judgment)

This is the judgment in respect of an appeal against the ruling of Aprioku J. of High Court Rivers State delivered on 14/2/2011 wherein he dismissed the application for joinder brought by the appellant on the ground that it lacked merit.

The appellant being dissatisfied with the ruling filed a Notice of Appeal on 18/12/2011, containing 3 grounds of appeal.

On transmission of records parties filed and exchanged briefs.

The appellant formulated two issues for determination as follows:-

“1) Was the learned trial court right in dismissing unfairly the application of the appellant for joinder at the lower on grounds of appellant not being a necessary party particularly in the light of the learned lower courts order at page 512 of the record of appeal.

2) Was the learned trial court right in dismissing the appellant’s application for joinder as an abuse of the process of the court and also the fact that the appellant is not a necessary party relying on the Court of Appeal case in BISIMILLAHI V. YAYBA EAST LOCAL GOVERNMENT COUNCIL (2003) FWLR PT 141 page 1939 to overrule the Supreme Court in AMAECHI V INDEPEDENT ELECTORAL COMMISSION & 2 ORS (2008) ALL FWLR PT 407 page 1?”

Learned counsel for appellant submitted that the appellant was not only a proper party but a necessary partry in line with GREENE V GREENE (2001) FWLR W 76 page 795, He stated further that it was the duty of courts to ensure that parties that were likely to be affected by the result of the action were joined in the action. He relied on OKUKIYA V AKWIDO (2001) FWLR PT. 39 page 1487 at 1523. He further referred to the case of Re:- OMIDIJI (2002) FWLR PT. 35 page 735 at 747 and AMAECHI V. INEC & ORS (2008) ALL FWLR PT.407 page 1 at 97-98 and submitted that only political parties won elections in Nigeria and so the appellant was a necessary party to be joined. He finally urged the court to resolve the issue in favour of the appellant.

On issue No. 2, he urged the court to apply the position of the law in AMAECHI’S case (supra) and hold that the said application was not an abuse of court process, resolve issue No. 2 in favour of the appellant allow the appeal, set aside the said decision of the lower court and join the appellants as a party to the suit pursuant to section 221 of the constitution as amended.

The 1st Respondent in his brief argued the preliminary objection in respect of which an earlier notice had been given. The grounds of the preliminary objection are:

“i. That the appellant’s motion on Notice date 4th day of February 2011 and filed on the 7th day of February, 2011 in respect of which the court below gave the interlocutory decision appealed against, was a motion which called for the exercise of the discretion of the court below and ispso facto, in pursuance of section 14(1) of the Court of Appeal Act, (Cap C36, Laws of the Federation of Nigeria, 2004) and Sections 241 (1) and 242(1) of the Constitution of the Federal Republic of Nigeria, 1999; leave of the court below or of this Honourable Court is required to lodge a competent appeal against the said interlocutory decision.

ii. That Grounds 1, 2 and 3 of the Notice and Grounds of Appeal, although erroneously branded as errors in law are, in fact, grounds of mixed law and fact as the said grounds of Appeal, are not only predicated on disputed facts and evidence as to whether the Appellants were necessary parties to be joined in the suit but also devolves on the trial courts evaluation of the evidence place before it.

iii. Again, the said grounds although erroneously branded errors in law are, in fact grounds of mixed law and facts for the grounds of appeal are predicated on complaint against the trial court’s finding of fact.

iv. That Ground 4 of the Notice and Grounds of Appeal, devolve in the main, on issues which the appellant did not raised before the trial Court, which issues can only be raised before this Honourable Court with the leave of the court and the said leave, the Appellants failed to obtain.”